Origin of the Writ of Certiorari

Meaning of the Term

Certiorari ("to be searched") is the present passive infinitive of Latin certiorare, ("to search").

Function

The numerous writs of ‘certiorari’ over history make a summary of the purpose difficult (1). Generally the writ of certiorari was used to furnish a court with records from another court or tribunal. It was ‘a royal demand for information’ (2). The actual words in the writ were ‘certiorari volumus’, ‘we wish to be informed’. The traditional phrasing of ‘certis de causis’ first appeared in 1272.(3) This way, cases and records might be moved from the local courts to the King’s Bench or the Common Pleas or in between the two courts. The opportunity for an appeal action is obvious; middle-aged cases exist in which certiorari was issued because no impartial jury could be found in the natural venue (4).

From the 14th to the 17th century, the purposes of certiorari seems to have been to supervise proceedings of specialized inferior courts like admiralty, forests, etc., to obtain administrative information, to bring before chancery or the courts various documents and to remove coroner’s indictments to the King’s Bench.

This later expanded into reviewing actions taken by statutory bodies which acted in a judicial function.

The discretionary nature of certiorari was and still is a significant characteristic. The writ was granted by the grace of the king. However it appears that by 1414 the writ was granted very much as a matter of course (5) upon the application of an official.

History

After the Conquest, the writ of certiorari was soon employed to move cases and records from the various local courts, such as the shire, hundreds and manorial courts to the royal courts. Although many of the administrative divisions of the country were adopted by Normans, the curia regis was a new development. To move business to the royal courts, the writs of pone, recordari facias and praecipe were used, from which the writ of certiorari evolved. “The principle of certiorari is indeed very old in our law; for it is, in essence, little more than a development of the ancient Pone.”(6)

The writ was used to attain records from courts and ‘escheators, coroners, chief justices, treasurers, Barons of the Exchequer, mayors of boroughs [and] the clerk of the Common Bench’(7) . The writ of certiorari, unlike most other writs was hence rarely addressed to the sheriff. Originally of course it was used to execute the direct orders of the Crown.

The writ was in use from about 1280 (8).

A case in 1326 indicates a connection between certiorari and habeas corpus. A writ of certiorari had been issued to ascertain the cause of arrest of a man called Henry. (See examples below)

Throughout this time, certiorari was used as a means to solidify the central government, and also to establish the King as the fount of justice to rectify wrongs done to his subjects by the common law. In the same vein however certiorari was used as a vehicle to allow suit against the government.

By the 13th century, certiorari was used specifically for reviewing errors; proceedings in error developed in parallel with certiorari. Certiorari was wider than a writ of error as it could be addressed to judicial tribunals but also could quash convictions.

Before 1500 through certiorari the King’s Bench could use the writ to quash criminal judgments as the writ was used to review indictments. Towards the end of the 16th century, this procedure of procuring records and reviewing them was extended to administrative bodies. In a sense, this can be seen as a seed for administrative or judicial review. This review was well established by the end of the 17th century in issues such as licensing.

The review power was limited however. Purely ministerial decisions which did not have a judicial aspect could not be reviewed and an issue could be examined only for ultra vires. There was no new trial. For example in Gardener’s Case (1600) Cro. Eliz. 821 it was decided that a summary conviction tainted with irregularity could be removed into the King’s Bench and quashed.

After 1660, the use of certiorari diminished somewhat after the abolition of the Star Chamber. Before 1660, it had served the purpose of bringing proceedings of the justices, and of subordinate tribunals generally, before the King’s Bench for review (9). It was most frequently used to remove a case when for some reason it was believed that an impartial trial could not be had. However the parliamentary establishment of new offices and duties for judges refreshed the use of certiorari quickly.

In the 19th century the power of certiorari declined as decisions were taken by local elected bodies whose actions were not seen as judicial. In the 20th century, the growth of the welfare state spurred the development of administrative bodies which were brought under judicial supervision of certiorari through relaxing the concept of ‘record’.

Certiorari and Royal Prerogative

Certiorari is a prerogative writ and played part in the struggle between king and parliament or common law and equity, as did the writs of mandamus, prohibition and quo warranto. These were never writs de curso or ex debito justitiae (10). The Star Chamber used the writ of subpoena, which was an offspring of the writ of certiorari. In 1389, the subpoena used the form of ‘bried Quibusdam certis de causis’, which is a classic formula of certiorari. Certiorari was also used greatly by the Star Chamber, much to the common lawyers’ chagrin (11).

After 1660, certiorari was still used widely for many of the tribunals and agencies created by parliament, but it did lose its function for habeas corpus and consequently for a large portion of the criminal law.

Today, jurisdiction to grant certiorari resides in the High Court and is exercised by the Queen’s Bench division. It is still discretionary in nature (12); it is now settled that certiorari is granted of course to remove an indictment on the application of a law officer, the private applicant must satisfy the court of substantial grounds (13), i.e. it is still very much a prerogative writ. It is used to control judicial acts and refusal to comply will bring about contempt of court. Due to the royal prerogative attached to it, a judicial agency cannot be exempted from certiorari except through express statutory intent. See Rex v. Plowright et al, 1686 (14).

Examples of Certiorari

At 1292:
“We therefore, wishing to be certified upon your afore-said deed and for justice to be done in this matter to the afore-said Martin, if he has been wronged in any way, command you, the bishops aforesaid, to send us plainly and openly under your seal the record and process of the aforesaid assize, taken before the aforesaid John and his aforesaid fellows, which we caused to come before you for the aforesaid reason, and this writ, so that we may have them a fortnight after Michaelmas ... in order that, having examined the aforesaid records and processes, we may cause to be done in the afore-going matters what by right and according to the law and custom of our realm ought to be done.” (15)

Connection to Habeas Corpus 1326:

And because the king sent word to his justices here that, after examination of the cause of Henry's arrest and detention, further etc. what they think should be done etc., the sheriffs of London are ordered to have the body of Henry before the king at Westminster this instant Tuesday at the Octave of St. John the Baptist to do and receive what the court etc. [sic] At that day the sheriffs sent here before the king the body of Henry...… And after examination of the cause of the arrest and detention, it seems to the court here that the cause is insufficient etc. Therefore Henry of Wellingborough is released by the mainprise of Henry Basset, Peter of Newport... who undertook to have Henry of Wellingborough before the king...…(16)

Footnotes

(1) Jenks, The Prerogative Writs in English Law, 32 Yale L. J. 1922 523, 528
(2) De Smith, The Prerogative Writs, 11 Cambridge L. J. 40 1951, p. 45
(3) See a letter written in 1252 from Henry III, in S.A. Smith, The Prerogative Writs, 11 Cambridge L. Rev. 43 (1951) p45
(4) Jenks, The Prerogative Writs in English Law, 32 Yale L. J. 1922 523, 529
(5) Jerome J. Hanus, Certiorary and Policy-Making in English History, American Journal of Legal History, 12 1968 63
(6) Jerome J. Hanus, Certiorary and Policy-Making in English History, citing E. Jenks, “The Story of Habeas Corpus” 2 Select Essays in Anglo-American History 539 (1908), citing Glanvill, vi. 7
(7) Jenks, Prerogative Writs in English Law, 32 Yale L.J. 529 (1923)
(8) De Smith, The Prerogative Writs, 11 Cambridge L. J. 40 1951, p. 46
(9) Goodnow, The Writ of Certiorari, Poli. Sci. Q. 6 1891 p. 500
(10) Goodnow, The Writ of Certiorari, Poli. Sci. Q. 6 1891 p. 497
(11) Jerome J. Hanus, Certiorary and Policy-Making in English History, American Journal of Legal History, 12 1968 63, p. 87
(12) See Lampriere's Case, [1670] 86 Eng. Rep. 717
(13) Jenks, The Prerogative Writs in English Law, 32 Yale L. J. 1922 523, 529
(14) 3 Mod. 94, 87 Eng. Rep. 60
(15) Sayles, Select Cases in the Court of King’s Bench under Edward I 3-4, p 87
(16) Sayles at p. 165

• goodnow.pdf: Goodnow, The Writ of Certiorari, Poli. Sci. Q. 6 1891

• Hanus.pdf: Jerome J. Hanus, Certiorary and Policy-Making in English History, American Journal of Legal History, 12 1968 63

• smith.pdf: De Smith, The Prerogative Writs, 11 Cambridge L. J. 40 1951

• weintraub.pdf: H. Weintraub, English Origins of Judicial Review by Prerogative Writ: Certiorari and Mandamus, 9 N.Y.L.F. 1478 1963