TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
PART V - PROCEDURE
CHAPTER 111 - GENERAL PROVISIONS
Sec. 1651. Writs
(a) The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of
their respective jurisdictions and agreeable to the usages and
principles of law.
(b) An alternative writ or rule nisi may be issued by a justice
or judge of a court which has jurisdiction.
(June 25, 1948, ch. 646, 62 Stat. 944; May 24, 1949, ch. 139, Sec.
90, 63 Stat. 102.)
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., Secs. 342, 376, 377 (Mar. 3,
1911, ch. 231, Secs. 234, 261, 262, 36 Stat. 1156, 1162).
Section consolidates sections 342, 376, and 377 of title 28,
U.S.C., 1940 ed., with necessary changes in phraseology.
Such section 342 provided:
"The Supreme Court shall have power to issue writs of prohibition
to the district courts, when proceeding as courts of admiralty and
maritime jurisdiction; and writs of mandamus, in cases warranted by
the principles and usages of law, to any courts appointed under the
authority of the United States, or to persons holding office under
the authority of the United States, where a State, or an
ambassador, or other public minister, or a consul, or vice consul
is a party."
Such section 376 provided:
"Writs of ne exeat may be granted by any justice of the Supreme
Court, in cases where they might be granted by the Supreme Court;
and by any district judge, in cases where they might be granted by
the district court of which he is a judge. But no writ of ne exeat
shall be granted unless a suit in equity is commenced, and
satisfactory proof is made to the court or judge granting the same
that the defendant designs quickly to depart from the United
Such section 377 provided:
"The Supreme Court and the district courts shall have power to
issue writs of scire facias. The Supreme Court, the circuit courts
of appeals, and the district courts shall have power to issue all
writs not specifically provided for by statute, which may be
necessary for the exercise of their respective jurisdictions, and
agreeable to the usages and principles of law."
The special provisions of section 342 of title 28, U.S.C., 1940
ed., with reference to writs of prohibition and mandamus, admiralty
courts and other courts and officers of the United States were
omitted as unnecessary in view of the revised section.
The revised section extends the power to issue writs in aid of
jurisdiction, to all courts established by Act of Congress, thus
making explicit the right to exercise powers implied from the
creation of such courts.
The provisions of section 376 of title 28, U.S.C., 1940 ed., with
respect to the powers of a justice or judge in issuing writs of ne
exeat were changed and made the basis of subsection (b) of the
revised section but the conditions and limitations on the writ of
ne exeat were omitted as merely confirmatory of well-settled
principles of law.
The provision in section 377 of title 28, U.S.C., 1940 ed.,
authorizing issuance of writs of scire facias, was omitted in view
of rule 81(b) of the Federal Rules of Civil Procedure abolishing
such writ. The revised section is expressive of the construction
recently placed upon such section by the Supreme Court in U.S.
Alkali Export Assn. v. U.S., 65 S.Ct. 1120, 325 U.S. 196, 89 L.Ed.
1554, and De Beers Consol. Mines v. U.S., 65 S.Ct. 1130, 325 U.S.
212, 89 L.Ed. 1566.
This section corrects a grammatical error in subsection (a) of
section 1651 of title 28, U.S.C.
1949 - Subsec. (a). Act May 24, 1949, inserted "and" after
WRIT OF ERROR
Act Jan. 31, 1928, ch. 14, Sec. 2, 45 Stat. 54, as amended Apr.
26, 1928, ch. 440, 45 Stat. 466; June 25, 1948, ch. 646, Sec. 23,
62 Stat. 990, provided that: "All Acts of Congress referring to
writs of error shall be construed as amended to the extent
necessary to substitute appeal for writ of error."
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