Hostname: page-component-cd9895bd7-gxg78 Total loading time: 0 Render date: 2024-12-24T19:57:49.607Z Has data issue: false hasContentIssue false
  • English
  • Français

The Prerogative Writs

Published online by Cambridge University Press:  16 January 2009

S. A. de Smith
Get access

Extract

The object of this paper is to give a general account of the nature and development of the prerogative writs. Of these writs the best known are habeas corpus ad subjiciendum, to bring up the body of a person imprisoned on a criminal charge or in private detention; certiorari, to review orders and convictions of inferior tribunals and to remove indictments for trial; prohibition, to prevent inferior tribunals from going beyond their jurisdiction; and mandamus, to compel the performance of a public duty. All four are of high constitutional importance, and the last three in particular play a central role in administrative and magisterial law. In the common-law jurisdictions overseas their significance is not less than in England, and in some instances it is even greater because of the more extensive spheres of operation conferred upon them. In England an Act of 1938 replaced the prerogative writs of certiorari, prohibition and mandamus by orders of the same names, but the change of designation reflected only a simplification of procedure; the substantive law remains the same, and for convenience they will here be described as if they were still prerogative writs.

Type
Research Article
Information
The Cambridge Law Journal , Volume 11 , Issue 1 , March 1951 , pp. 40 - 56
Copyright
Copyright © Cambridge Law Journal and Contributors 1951

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 For the only other general account, see Jenks, E., ‘The Prerogative Writs in English Law’ (1923) 32 Yale L.J. 523.Google Scholar This article, although sometimes inaccurate, contains several valuable suggestions.

2 Administration of Justice (Miscellaneous Provisions) Act, 1938 (1 & 2 Geo. 6, c. 63).

3 The Act left habeas corpus inviolate as a prerogative writ with the old procedure; it was apparently thought that to meddle with habeas corpus might be misconstrued as subversive activity: Jackson, R. M., Machinery of Justice in England, 37.Google Scholar ‘Never change native names, for there are Names in every nation God-given, of unexplained power in the mysteries’ (Chaldean Oracle).

4 Of course, all writs are in form commands issuing in the name of the King; but only writs that were conceived as standing in a special relationship with the Crown came to be regarded as ‘prerogative’ writs.

5 It is often said that quo warranto (which is usually classified as a prerogative writ: e.g., 2 Pollock & Maitlaml 661), was only made available to the subject in modern times, but this view is wrong: Plucknett, , Legislation of Edward I. 35 f.Google Scholar Under Edward I it became a potent royal weapon against the usurpers of franchise jurisdictions, but it had been used by private suitors long before that time: see Cam, Helen M. (1926) 11 History, 143 f.CrossRefGoogle Scholar; Lapsley, G. (1927) 2 Cambridge Historical Journal, 110 f.CrossRefGoogle Scholar In the sixteenth century it was replaced by an information filed by the Attorney-General. As with some of the prerogative writs, subjects required leave of the court to exhibit the information. Section 9 of the Administration of Justice Act, 1938, replaced quo warranto informations by injunction.

6 3 Bulst. 32 at 33.

7 (1615) 3 Bulst. 32; Moo.K.B. 842; 1 Rolle R. 188, 206, 288. The political background to the case is described by Gardiner, S. R., History of England, 1603–42, iii, 7Google Scholar, and Holdsworth, , H.E.L., v. 439.Google Scholar

8 Bacon, , Works (ed. Spedding, ), vii, 687 f.Google Scholar

9 17 Viner Abridgment, Prerogative of the King, U (b).

10 For the modern law, see Robertson, , Civil Proceedings by and against the Crown. 537Google Scholar; R. v. Hughes (1866) L.R. 1 P.C. 81; Eastern Archipelago Co. v. R. (1853) 2 El. & Bl. 856.

11 Crown Proceedings Act. 1947 (10 & 11 Geo. 6, c. 44), Schedule IGoogle Scholar; Smith, Bickford, Crown Proceedings Act, 1947, 108.Google Scholar

12 For its history, see Beames, , Ne Exeat Regno (2nd ed., 1824).Google Scholar

13 Bacon, Orders, No. 89 (Sanders, Orders in Chancery, i, 120).

14 Beames, , op. cit., 18–19.Google Scholar

15 Bohun, , Cursus Cancellariae (2nd ed.) 455.Google Scholar

16 Tomlinson v. Harrison (1802) 8 Ves. 32 at 33; cf. Jackson v. Petrie (1804) 10 Ves. 164 at 165.

17 32 & 33 Viet. c. 62; see also Crown Proceedings Act, 1947, s. 31 (2), and Glanville Williams in (1948) 10 Camb.L.J. at 70, n. 31.

18 See Holdsworth, , H.E.L., x, 108–125Google Scholar; Maxwell Cohen (1938) 16 Can.Bar Rev. 92. (1940) 18 Can.Bar Rev. 10, 172; Jenks (1902) 18 L.Q.R. 64 (reprinted in 2 Select Essays in Anglo-American Legal History 531). Holdsworth and Cohen have exposed several misconceptions in Jenks' account.

19 G. O. Sayles, Introduction to Vol. 57, Selden Soc., lxxxvii.

20 See Maitland, , ‘History of the Register of Original Writs’, Collected Papers. ii, 110 at 130.Google Scholar This monograph also appears in (1889) 3 Harv.L.R. and 2 Select Essays 549.

21 ‘Ke il [the Chancellor] ne enselera nul bref fors bref de curs sanz le commandement le rei, e de sun cunseil ke serra present.’

22 De Legibus, f. 413b.

23 One of the earliest writs of grace was de odio et alia: Glanvill, xiv, c. 3. Magna Carta, c. 36. converted it into a writ of course. For early references to writs of grace in parliamentary petitions, see Rotuli Parliamentorum (Rot.Parl.), ii, 376, 241.Google Scholar

24 Written c. 1596–1603; printed in Hargrave's Law.Tracts 293.

25 Op. cit. at 313.

26 No. 85; cf. Orders of Puckering and Egerton (1596): Sanders, op. cit., i, 70.

27 See (1414) 2 Hen. 5, St. 1, c. 2; (1433) 11 Hen. 6, c. 10; (1554) 1 P. & M., c. 13; (1601) 43 Eliz. c. 5.

28 It has been said that habeas corpus ad subjiciendmn (the prerogative form of habeas corpus) was never regarded as a writ of course: Wilmot, Opinion on the Writ of Habeas Corpus (1758) at 88. It was decided in the seventeenth century, however, that other forms of the writ would issue out of the common law courts as of course: Slater v. Slater (1660) Lev. 1; Penrice and Wynn's Case (1679) 2 Mod. 306; Anon. (1671) Cart. 221.

28a The history of the assumption by the common-law courts of the power to award the writs still awaits detailed investigation; but Jenks was clearly wrong in saying that the development took place after 1688.

29 In Awdley v. Joy (1626) Poph. 170 it was called ‘peculiar to the King's Bench’ and ‘one of the flowers of it’. See, however, Mayor of Coventry's Case 2 Salk. 429 for a reference to mandamus issuing out of the Chancery.

30 Adrian Lampriere's Case (1670) 1 Mod. 41.

31 Ante, p. 42; cf. also the restrictions on the right of subjects to have the prerogative writ of scire facias, and to exhibit quo irarranto informations.

32 For an authoritative modern statement of the law, see R. v. Stafford JJ., Ex p. Stafford Corporation [1940] 2 K.B. 33.Google Scholar

33 See, however, R. v. Bishop of Sarum [1916] 1 K.B. 466.Google Scholar

34 See, e.g., Anon. 1 Sid. 54, where the court resolved not to award certiorari to remove indictments for perjury, forgery, or ‘ascun tiel grand inisdemeaner’ because where indictments were thus removed they were not further prosecuted.

35 R. v. Commissioners of Excise (1788) 2 T.R. 381 at 385; see also R. v. Church-wardens of All Saints, Wigan (1876) 1 App.Cas. 611 at 620; High, Extraordinary Legal Remedies (1874) 8, n. 1; Goodnow. Comparative Administrative Lato, ii, 195.

36 Short and Mellor, Crown Practice (2nd ed.), 254–5; Halsbury (Hailshain ed.) ix, 819–20, 826–8: Shortt, Informations. Mandamus and Prohibition, 441–6. The law on this point, is not altogether clear. For early confliets of opinion, see Bacon, Abridgment. Prohibition (B).

37 Jenkcs' Case (1676) 6 St.Tr. 1189 at 1207–8: Hobhouse's Case (1820) 3 B. & A. 420.

38 Proceedings upon the writ ne exeat regno were confined to the Court of Chancery.

39 The word is not, apparently, of classical origin: Du Cange, Glossarium Mediae et Infimae Latinitatis, Vol. 2. The first example of its use that I have traced in the printed records is in a letter written in 1252, from Henry II I to the Mayor and commonalty of Bordeaux, expressing the King's readiness to be informed of the grievances of his subjects in that city: Close Rolls, 36 Hen. 3, m. 27d. The word certificari was more common at that time.

40 Placitorum Abbreviate (Plac.Abbr.) 155 (49 Hen. 3).

41 Cf. Register of Original Writs, ff. 293, 296; for history of the escheator, see The English Government at Work, 1327–36 (ed. Morris and Strayer), ii, 109–67.

42 Calendar of Inquisitions, i, 130, 131.

43 Inquisitions and Assessments Relating to Feudal Aids, i, 16; see also Introduction, xxiii.

44 Plac.Abbr. 182, r. 14 (Hil. 56 Hen. 3).

45 Ibid., 184, r. 23d.

46 For a general discussion, see Plucknett, , Concise History of the Common Law (4th ed.) 645.Google Scholar

47 See, e.g., Close Rolls, 1327–30, pp. 25, 32, 286.

48 For example of certiorari issuing in consequence of petitions to the King in Parliament, see Rot.Parl. i, 17b, 18a, 105a.

49 Selden Soc., Vols. 55, 57, 58.

50 R. v. Titchmarsh (1915) 22 D.L.R. 272 at 277–8.Google Scholar

51 Cowell, Interpreter, M2; Spence, Equitable Jurisdiction, i, 686, 687.

52 The proceedings were removed upon a Certiorari Bill: see Register, Appendix, 52d; 1 Eq.Ca.Abr. 81; Hilton v. Lawson, Cary 48.

53 Select Cases Concerning the Law Merchant, Vols. I–III, passim (Selden Soc, Vols. 23, 46, 49).

54 Select Pleas in the Court of Admiralty, I (Selden Soc. Vol. 6). 2; Introduction to Vol. II (Selden Soc., Vol. 11), xli.

55 Neilson, Nellie in The English Government at Work, 1327–36 (ed. Willard, and Morris, ), ii, 422.Google Scholar

56 Register, f. 24; cf. Y.B. Hil. 21 Edw. 4. pl. 26.

57 Register, ff. 293, 296.

58 In 1 Salk. 57 the Book is described as having been brought into court by a porter.

59 For very early examples, see Selden Soc., Vol. 57, 41 (1291); Rot.Parl., i, 57a.

60 Putnam, B. H., Proceedings before Justices of the Peace in the Fourteenth and Fifteenth Centuries (Ames Foundation, 1938)Google Scholar, Introduction, lxx et passim.

61 See figures quoted by Stephen, History of Criminal Law, i, 96.

62 R. v. Clace (Inhabitants) (1769) 4 Burr. 2456 at 2458 (per Lord Mansfield C.J.).

63 See p. 44, ante.

64 R. v. Berkley and Bragge (1754) 1 Keny. 80 at 102.

65 See Frankfurter, Felix and Corcoran, Thomas G. in (1926) 39 Harv.L.R. 917Google Scholar; and Paley, , Summary Convictions (9th ed.), Introduction.Google Scholar

66 Holdsworth, H.E.L., x, Ch. II.

67 Gardener's Case (1600) Cro.Eliz. 821. The case appears in (1591) 5 Co.Rep. 71 sub nom. Scint John's Case, but the term, year and name of defendant are given wrongly. The case was removed by a corpus cum causa; certiorari is not mentioned in the record in the Rex. Roll, but it was presumably used in conjunction witli the corpus cum causa. The next case in the Rex Boll, R. v. Denys, was removed by a certiorari; the record is transcribed in Tremainc, P.C., 330. The writ of error was the appropriate means of impeaching the record of a judgment given on an indictment; but it would not lie to quash convictions and orders made by magistrates after summary proceedings, and the courts therefore allowed certiorari to issue for this purpose.

68 (1700) 1 Ld.Raym. 454 at 459. See also R. v. Inhabitants—in Glamorganshire, 1 Ld.Raym. 580 (the Cardiff Bridge Case).

69 Englische Verfassungsgcsehichte, 574.Google Scholar

70 Adams, Norma, ‘The Writ of Prohibition to Court Christian’ (1936) 20 Minnesota L.R. 272.Google Scholar

71 Bk. iv, 14; reprinted in Holdsworth, H.E.L., i, 656.

72 For many other early uses of the writ, see Fitzherbert, , Natura Brevium (F.N.B.), 39 H et seq.Google Scholar

73 3 Bulst. 119; see also Skin. 626.

74 James' Case (1631) Hob. 17; 2 Roll.Abr. 313; see also Hale, Analysis of the Law, 21. Cf. Foster J. in R. v. Berkley and Bragge, 1 Keny. 80 at 104: ‘It is the undoubted prerogative of the Crown, to see that all inferior jurisdictions are kept within their proper bounds, and on that principle the whole doctrine of certiorari depends’.

75 Until 1831 (1 Wm. 4, c. 21) a declaration in prohibition had to be expressed to be on behalf of the King as well as the applicant, and had to allege a contempt of the Crown.

76 Case of Company of Homers in London (1642) 2 Roll.R. 471.

77 Bacon, Abridgment. Prohibition (A).

78 F.N.B. 40 E.

79 (1875) L.B, 10 C.P. 379 at 382; see also Walker, R. T., ‘Is the Writ of Prohibition a Prerogative Writ?’ (1939) 37 Mich.L.R. 789Google Scholar; and Note (1923) 36 Harv.L.R. 863.

80 Worthington v. Jeffries, ante; De Habcr v. Queen of Portugal, 17 Q.B. 220Google Scholar; Co.Inst., ii, 607.

81 Jenks (1923) 32 Yale L.J. at 530.

82 See, however, a writ in the Close Rolls, 6 Edw. 2, m. 8, commanding the Mayor and commonalty of Bristol to restore certain burgesses to the liberty of that city and to their goods; cf. Middleton's Case, post. In Dr. Widdrington's Case, 1 Lev. 23, there is mentioned a writ of mandamus issuing temp. Edward II to restore Fellows of a College to their fellowships of which they had been unlawfully deprived; cf. Tapping on Mandamus, 78.

83 F.N.B., 253B; Register, 195d.

84 Middleton's Case, 3 Dyer 332b. The writ in this case was modelled after one issued in an earlier unreported case of a similar character: Anable's Case, temp. Henry VI.

85 In the seventeenth century the writ was often called a writ of restitution: e.g., 1 Bulst. 174; Poph. 133; Poph. 170; Style 32; 3 Salk. 231; Hale's Analysis of the Law, 60.

86 R. v. Mayor of Norwich, 2 Ld.Raym. 1244.

87 R. v. Mayor of Evesham, 7 Mod. 166.

88 It was regularly used after 1688 by the Whigs to secure admission to the Tory-packed borough corporations. Jenks, in 32 Yale L.J. at 530–1, mentions that the Whigs were being kept off the corporations in spite of the Toleration Act. Tha t Act, however, had nothing whatsoever to do with corporate office.

89 See, e.g., Groenvelt v. Burwell, 1 Ld.Raym. at 469; R. v. Montague, Sees. Cas. 106.

90 See esp. R. v. Blooer (1760) 2 Burr. 1043; R. v. Barker (1762) 1 W.B1. 352; Dr. Askew's Case (1768) 4 Burr. 2186.

91 E.g., in R. v. Cowle (1759) 2 Burr. 834 at 855; R. v. Barker (1762) 1 W.B1. 352; R. v. V.C. of Cambridge (1765) 3 Burr. 1647 at 1659. For a similar early reference to mandamus, see Knipe v. Edwin (1694) 4 Mod. 281; cf. R. V.Patrick, 1 Keb. 610.

92 R. v. Barker, ante.

93 De Legibus, f. 150 b.

94 Case of Prohibitions (1608) 12 Co.Rep. 65.

95 Holds-worth, H.E.L., i, 204–6.

96 Co.Inst., iv, 71. These words are taken almost verbatim from the opening sentence of his reported judgment in Bagg's Case, 11 Co.Rep. at 98a.

97 Co.Inst., iv, 70.

98 See, however, H.E.L., v, 478, n. 1.

99 Observations on Coke's Reports, 11. Cf. Ellesmere's speech to Coke's successor on the duties of Chief Justice for similar language: Campbell, Lives of the Chief Justices, i, 355.

1 Campbell, op. cit., Ch. XI.

2 Dodderidge, Houghton and Sir John Croke.

3 Richard Bourn's Case (1620) Cro.Jac. 513. See also the judgments of his brethren reported in Palm. 54 for like language. Similar reasoning was used in two slightly earlier cases in 2 Koll.Abr. 69; but the word ‘prerogative’is not mentioned there.

4 Habeas corpus was often said to be founded on Magna Carta: H.E.L., i, 228. So, too, was mandamus: R. v. Heathcote (1712) 10 Mod. 48 at 53; Bac.Abr., Mandamus; Tapping on Mandamus, 2, 5.

5 Blackstone, Commentaries, iii, 110.

6 See the form of the writ in Bagg's Case, ante. The phrase also appeared in some modern forms of the writ: Short and Mellor, op. cit., 518, 591 ct passim.

7 I.e., writs directed to the tribunal or persons immediately concerned, and not to a royal official such as the sheriff.

8 (1759) 2 Burr. 834 at 855–6. This seems to be the first reference to certiorari as a prerogative writ.

9 Wetherley v. Wetherley, 2 Roll.Abr. 69; Richard Bourn's Case (1620) Cro.Jac. 543; Palm. 54; Jobson's Case (1626) Latch. 160; but not habeas corpus cum causa ad faciendum et recipiendum (to bring up a defendant detained by an inferior civil court): Anon. 1 Sid. 431.

10 Warner v. Suckerman, p. 40, ante; Williams v. Lister (1669) Hardres 475.

11 Richard Bourn's Case, ante; —— v. Wiggon (Mayor) 1 Sid. 92.

12 Certiorari would go to remove indictments: ‘although the King grant iura regalia, yet it shall not exclude the King himself’: Anon. (1641) March 165; but certiorari would not go to remove ordinary civil actions between subjects: R. v. Winchelsea (Mayor) (1673) Freem. K.B. 99.

13 Concerning Process into Wales, Vaughan 395 at 101; cf. Calvin's Case, 7 Co. Rep. 1 at 20a.

14 It went to the Counties Palatine and into Wales, but not to the Cinque Ports: Dyer 376a; Co.Inst., iv, 224.

15 Paty's Case (1705) 1 Salk. 504.

16 Stephen, Hist.Cr.Law, i, 309–10.

17 Though the plaintiff had to assign his errors before the defendant was called into court by a scire facias ad audiendum errores.

18 Plucknett, Concise History of the Common Law (4th ed.), 374.

19 He may have obtained some of his ideas from the discussion of certain of the writs in the same context in the Opinion on Habeas Corpus, (1758) Wilmot 79.