Definition
A Latin writ of the common law directing a lower court to transmit the record and process of a concluded or pending cause to a superior court for review. The writ functioned as a mechanism of appellate oversight, compelling the inferior tribunal to send up the documentary foundation of the case — the record of proceedings and the process issued — so that the higher court could examine whether error had occurred. It belonged to the family of writs of error and operated as a formal command rather than a request.
The full phrase is an abbreviation of the writ's operative clause: a direction that the record and process "be sent" (mittendis) to the reviewing court. The writ did not itself determine the merits; it only secured the materials upon which a superior court could act.
Why It Matters in Research
Researchers encountering this writ in historical sources must understand that it operated within a procedural world radically different from modern appellate practice. In the common law system, appellate review was not a matter of right exercised by filing a notice of appeal. Each step upward required a distinct writ, and the de recordo et processu mittendis was one of several instruments that could be deployed to move a cause between courts.
The writ is most likely to appear in records and treatises from the medieval and early modern English periods, particularly in chancery registers (Registrum Omnium Brevium, commonly cited as Reg. Orig.) and in the practice literature surrounding the Court of King's Bench and Common Pleas. Burrill cites Reg. Orig. 209 as the locus for this writ, which places its formal register entry in the standard chancery formulary. Researchers working in plea rolls, error rolls, or chancery records from roughly the thirteenth through seventeenth centuries are most likely to encounter it in practice.
Do not conflate this writ with the substantive writ of error itself. The de recordo et processu mittendis was the transmittal mechanism — the instrument that moved the record — while the writ of error was the broader proceeding authorizing review. In practice, both might issue in sequence, and period sources do not always distinguish them cleanly.
This writ has no modern procedural counterpart in American or English practice. Modern appellate procedure accomplishes the same function through the record on appeal, certified copies of the docket, and statutory or rule-based transmission requirements. Any attempt to reason by analogy from this writ to modern procedure should be made cautiously.
For corpus researchers: the term appears in abbreviated or variant forms in manuscript sources. "De recordo mittendo" and "mittimus de recordo" are closely related phrases you may encounter. The Registrum Originale entries for related error writs cluster in the same section of the register, so reviewing surrounding folios when one writ appears will often surface the others.
Historical Dictionary Support
Burrill's entry is notably compressed, appearing as a sub-entry within a cluster of Latin writ names rather than receiving independent treatment. Burrill gives the writ's function accurately — a writ to send the record and process to a superior court, described as "a species of writ of error" — and anchors it to Reg. Orig. 209. This brevity reflects the writ's status as a procedural instrument of settled, if narrow, function rather than a term requiring doctrinal elaboration.
Burrill places the entry in close proximity to the Breve de Recto (Writ of Right), which is a different instrument entirely concerned with title to land rather than appellate transmission. The adjacency in Burrill is alphabetical, not conceptual, and researchers should not read doctrinal connection into that proximity.
Other historical dictionaries in the common law tradition — Termes de la Ley, Cowell's Interpreter, and Tomlin's Law Dictionary — address writs of error and related transmittal writs but do not always give de recordo et processu mittendis a distinct entry, treating the function as subsumed within the broader writ-of-error apparatus. This reflects historical legal writing's tendency to treat transmittal writs as procedural machinery rather than substantive doctrine.
Jurisdictional Note
This writ belongs exclusively to the English common law tradition and its early American reception. It had no meaningful life in equity practice or in civil law jurisdictions. American courts largely absorbed the transmittal function into statutory frameworks by the nineteenth century, and the writ ceased to be issued as an independent instrument.