The Writ of Certiorari and Its Scope, 1600-1800: For the Orderly Administration of Justice

This thesis employs an internal legal history methodology to examine the writ of certiorari in the seventeenth and eighteenth centuries. Using legal manuscripts and parliamentary records, it aims to re-evaluate the conventional answers to four key questions: how did the Court of King’s Bench come to use the writ of certiorari to quash administrative decisions? What was the purpose of the writ of certiorari? Why did Parliament begin to restrict certiorari? And, how did the judges react to these early Parliamentary attempts to restrict certiorari? It is argued that the writ of certiorari permitted the judges of the King’s Bench to capture a prerogative power that had theretofore been exercised by the Privy Council—supervising administrative decision-making. However, certiorari not only emerged with the blessing of the Crown, but greatly benefit the Crown. The focus of the writ of certiorari was on orderly administration of justice. The judges used certiorari to ensure that inferior judicial bodies implemented the law in a well-organised and controlled way. Parliament recognised the value of certiorari but also its costs. The earliest restrictions were primarily targeted at abuse by vexatious litigants. As the law of certiorari continued to develop, many promoters of legislation came to see the cost and delay of certiorari as incompatible with their desire for quick and cheap administration. Within the parliamentary process, a few judges expressed concern at restricting certiorari, but others—including Sir Edward Coke and Sir Matthew Hale—played a significant role in drafting such restrictions. In court, the judges interpreted restrictions on certiorari using conventional principles of statutory interpretation. The overall result of their interpretations was not clearly in favour or clearly against restricting certiorari. Rather, it was guided by their desire to maintain a well-organised and controlled judiciary, subordinate to the King’s Bench.

Name dc:type.qualificationname

Doctor of Philosophy (PhD)

Level dc:type.qualificationlevel

Doctoral

Grantor dc:publisher.institution

University of Cambridge

Year dc:date.issued

2023

Author dc:creator

• Warchuk, Paul

Advisors dc:contributor.advisor

• Allison, John
• Daly, Paul

• administrative law
• certiorari
• judicial review
• legal history
• prerogative writs

Licence

• https://apollo8-f-pro.lib.cam.ac.uk/bitstreams/114ea49b-967c-49b0-9010-2f06128e65b1/download
• https://www.rioxx.net/licenses/all-rights-reserved/

Language dc:language

eng

DOI dc:identifier.doi

https://doi.org/10.17863/CAM.102257

OAI identifier oai:identifier

oai:www.repository.cam.ac.uk:1810/358833