Definition
"Form of the statute" is a term of pleading art referring to the concluding phrase required in an indictment or criminal information when the offense charged is one created by statute rather than existing at common law. The phrase signals that the act alleged violates a legislatively enacted prohibition, not merely judge-made criminal law.
In practice, the term appears almost exclusively in the context of the formal conclusion of an indictment. That conclusion traditionally read: "against the form of the statute in such case made and provided" — or, in its Latin formulation, contra formam statuti. This language was not surplusage. Its presence or absence carried procedural and substantive consequences: an indictment for a statutory offense that omitted the phrase could be challenged as defective, because it failed to make clear whether the prosecution rested on statute or common law — a distinction that affected available defenses, applicable penalties, and the court's jurisdiction over the offense.
Common Confusion
"Form of the statute" is sometimes read as referring generally to the textual structure or drafting format of a statute — that is, the form a statute takes. That reading is incorrect in the legal pleading context. As a term of art, "form of the statute" does not describe legislation; it describes a required element of indictment drafting that invokes the statute as the source of the alleged crime. Researchers encountering the phrase in older indictments, criminal procedure manuals, or pleading treatises should understand it as a pleading formula, not a reference to legislative draftsmanship.
Why It Matters in Research
This term belongs almost entirely to historical criminal pleading practice. Researchers working with indictments, grand jury records, or criminal procedure materials from the eighteenth through early twentieth centuries will encounter contra formam statuti routinely and should recognize it as a standard formal element rather than a substantive allegation unique to the document at hand.
Several research traps are worth flagging:
First, the phrase's presence or absence in historical indictments is legally significant, not decorative. Challenges to indictments on the ground that they failed to conclude "against the form of the statute" were real procedural arguments in pre-code pleading systems. When reading case law that turns on whether an indictment was technically sufficient, the form-of-the-statute conclusion may be at the center of the dispute even when the opinion does not foreground it.
Second, modern criminal procedure has largely eliminated this requirement. The Federal Rules of Criminal Procedure and state equivalents have replaced technical common law pleading with notice pleading standards, and the Latin formula has effectively disappeared from American practice. Researchers should not expect to find the phrase in contemporary indictments and should treat its presence as a marker of pre-code or early code-era materials.
Third, because the requirement applied only to statutory offenses, its presence in an indictment is also a reliable signal that the offense being prosecuted was understood at the time as a creature of statute, not common law. This can be useful when researching the historical classification of particular crimes.
Historical Dictionary Support
Black's Law Dictionary defines the term directly and concisely, identifying it as the proper form for concluding an indictment for a statutory offense and providing both the English phrase and the Latin equivalent, contra formam statuti. The entry is descriptive and technically accurate as far as it goes.
What Black's does not address — and what historical legal dictionaries generally underserve — is the procedural consequence of omitting the phrase. The entry treats the formula as a statement of what proper form looks like without explaining what defective form cost a prosecutor. The fuller picture, found in common law pleading treatises and in the case law they generated, is that this conclusion was a formal requirement whose omission could render an indictment demurrable. That gap between the dictionary's descriptive account and the operative legal stakes is worth keeping in mind when using Black's alone as a research tool for historical criminal procedure.
Jurisdictional Note
The requirement was a feature of common law pleading systems and applied broadly across English and American jurisdictions that followed common law indictment forms. Its practical elimination followed the adoption of modern criminal procedure codes, which occurred at different times in different jurisdictions. Researchers working in states that retained older pleading requirements into the mid-twentieth century may find the formula persisting longer in those courts than in federal practice.