The Writ of Certiorari and the Poor Law 1630-1790

Abstract

Judicial review now accounts for about one half of the litigation initiated in the High Court. This paper is concerned with the seventeenth and eighteenth century origins of the process of certiorari, and, in particular, with what was probably the principal use of the remedy: a remedy for correcting maladministration of the poor law code. This paper surveys this current of law from its origins in the year 1634 to 1790. It addresses four issues: (i) levels of usage of the process, and the types of orders reviewed (and shows how the bastardy order, which had been the principal concern of the process in the mid-seventeenth century, was superseded by the order of removal in the late seventeenth century); (ii) the legal standards by reference to which the legality of orders were scrutinized, and, in particular, the origins of the ‘special case’ and of review of jurisdictional error by affidavit; (iii) the procedural rules devised by the King’s Bench (and parliament) - the recognisance, the six months’ time limit, the order of remittal, the exhaustion of remedies rule, amenability to costs - to prevent abuse of the process, and (iv) and the factors which influenced the principal users of the remedy - overseers of the poor - to employ this expensive process.