MANDARE - The Law Mind Legal Dictionary

MANDAREAuthored

The Law Mind • 929 words

Definition

A Latin verb from the Roman and civil law tradition, mandare carried three principal meanings in legal usage: (1) to command or enjoin — to direct a person, court, or body to perform a specified act; (2) to commit or deliver into custody or execution — as in committing a judgment to be carried out; and (3) to make a formal return to a writ — as when an officer reported back to the issuing court on what had been done.

In English legal practice, mandare is encountered primarily as the root of mandamus, the Latin phrase meaning "we command," which became the name of a prerogative writ directing a public official, inferior court, or corporation to perform a duty. The verb itself does not appear as a standalone legal instrument; its importance in the corpus is as source vocabulary that explains the structure and function of derivative terms.

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Common Confusion

Mandare and mandamus are sometimes treated interchangeably in older texts, but they are not the same thing. Mandare is the verb — the infinitive meaning "to command." Mandamus is the first-person plural present indicative form — "we command" — and is also the proper name of the writ. A researcher encountering mandare in a Latin passage is reading a general description of commanding or committing; a researcher encountering mandamus is reading about the specific writ or its procedural mechanics. The distinction matters when parsing Latin passages in treatises, pleadings, or early court records.

Also distinct: mandare as "to commit to execution" (mandare executioni) should not be confused with the modern concept of a mandate as political authority or a judicial mandate as the formal order transmitted from an appellate court to a lower court. These uses share a common root but are functionally different enough to require care.

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Why It Matters in Research

Researchers working in pre-nineteenth-century English and American legal records will encounter mandare in two contexts that require different interpretive approaches.

First, as command vocabulary in writ practice. The Latin formularies underlying the writ system used mandare and related forms to express judicial direction. Knowing that mandamus derives from mandare — and that praecipere (to instruct or direct) was actually the more common verb in standard writ forms, as Burrill notes — helps researchers understand why some writs sound like commands and others sound like instructions. The choice of verb in a writ's operative clause was not stylistic; it signaled the nature and source of authority being invoked.

Second, as procedural terminology for execution and return. Mandare executioni (to commit to execution) appears in admiralty and chancery practice records. Mandavit in the return context — as in the phrase Burrill quotes regarding a fraudulent return — is the perfect tense form and describes what a sheriff or officer reported back to the court. A researcher reading bailiff or sheriff records who sees mandavit should recognize this as return language, not command language.

The term also anchors a set of related Latin procedural vocabulary that cross-cuts the corpus. Researchers tracing the writ of mandamus through equity, administrative, and constitutional law contexts will find mandare in the background whenever sources discuss the writ's foundation or justify its scope.

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Historical Dictionary Support

Anderson and Burrill agree on the core meanings — to command, to commit, to return — and both flag mandamus as the principal derivative. Their entries diverge in emphasis and in what each preserves from practice.

Anderson leads with the etymological gloss ("to put into one's hand") and moves immediately to mandamus as the practical instrument, treating the writ as the living form and mandare as merely its root. His entry is oriented toward common law practitioners who needed to understand the writ, not the verb.

Burrill is more granular and more useful for historical research. He preserves the meaning of mandare executioni with a specific citation to Clerke's Praxis Curiae Admiralitatis, and he gives the return-language use with a Latin phrase illustrating fraudulent return by a sheriff. This reflects Burrill's broader approach of preserving civil law and admiralty vocabulary that Anderson treats as secondary. Burrill also notes explicitly that praecipere, not mandare, was the standard verb in writs — a distinction Anderson omits. That note is practically significant: researchers should not assume that mandare was the operative word in writ formularies generally; it was the conceptual source, but not always the drafting convention.

Neither dictionary addresses the transition from Latin writ practice to English-language mandamus proceedings, which is the context most modern researchers will encounter when working with post-eighteenth-century materials.

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Jurisdictional Note

Mandare as a term of active practice belongs to the era of Latin pleading, which ended in England under the Pleading in English Act 1730 and was largely obsolete in American practice by the early nineteenth century. Researchers working in civilian jurisdictions (Louisiana, Quebec) or in admiralty sources may encounter the term later than in common law state records.

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MANDAREmain

Anderson's Dictionary of Law • 1890

L. To enjoin, command; literally, to put into one's hand. Mandamus. We command; we command you. The emphatic word in the Latin form of the writ of that name: a command issuing in the king's name, directed to any person, corporation, or inferior court of judicature within the king's dominions, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which the court has previously deterWheeler & Wilson Manuf. Co. v. Lawson, 57 Wis. 404 (1883), cases, Orton, J.; 110 U. S. 6. 2 Upper Mississippi Transportation Co. v. Whittaker, 16 Wis. 235 (1862), Paine, J. 3 [Reddington v. Mariposa Land, &c. Co., 19 Hun, 408 (1879), Ingalls, J. • Palmer v. Pennsylvania Co., 35 Hun, 371 (1885). to right and justice.¹ A high prerogative (discretionary) writ of a most extensively remedial nature, where justice is refused or neglected. It issues where a party has a right to have a thing done or has no other specific means of compelling its performance: as, to compel admission or restoration to an office or franchise of a public nature; for the production or inspection of public documents; to compel a judge of an inferior court to do justice according to the powers of his office, as to admit an attorney to practice.2 A proceeding to compel officers and others to act in the discharge of the duties and trusts imposed upon them. It is not designed to review their action when discretion may be exercised, or where action depends upon facts to be determined by them.3 The courts are disposed to confine the remedy to cases where there is no other adequate specific remedy. The writ affords a summary and specific remedy where without it the party will be subjected to serious injustice.4 In modern practice, in effect, is nothing more than an ordinary action at law between the parties, and not regarded as a prerogative writ. It came into use by virtue of the prerogative power of the English crown, and was subject to rules and regulations long since disused. It may be said to be an established remedy to oblige inferior courts and magistrates to do that justice which they are in duty, and by virtue of their office, bound to do.6 The writ lies where the plaintiff has a clear legal right to the performance of an official or corporate act, by a public officer or corporation, and no other adequate, specific remedy exists." Regularly the writ lies against a public officer to compel the performance of a public duty; never to restore to a private office or to execute a private right; and, as a rule, never where the applicant has another adequate remedy.8 Its office is to compel the performance of a duty resting upon the person to whom the writ is sent. The 13 Bl. Com. 110; 1 Cranch, 169; 5 Pet. *192; 12 id. *614. 23 Bl. Com. 110, 264. * Scripture v. Burns, 59 Iowa, 72 (1882), Beck, J. See also 22 N. J. L. 47; 28 N. Y. 114. 4 Tawas, &c. R. Co. v. Judge of Iosco County, 44 Mich. 479, 483 (1880): 24 id. 468; Huston, &c. R. Co. v. Commissioner of Land Office, 36 Tex. 399 (1872): King v. Baker, 3 Bur. 1267 (1762); State v. Board of Liquidators, 29 La. An. 267 (1877). Kentucky v. Dennison, 24 How. 97 (1860), Taney, C. J.; Hartman v. Greenhow, 102 U. S. 675 (1880); State v. Lewis, 76 Mo. 379-81 (1882); High, Extr. Rem. 4. • Virginia v. Rives, 100 U. S. 323 (1879), Strong, J. Smalley v. Yates, 36 Kan. 523 (1887), cases, Horton, Hat-Sweat Manuf. Co. v. Davis Sewing-Machine Co., Chief Justice. 31 F. R. 295 (1887), cases, Brown, J., 8 Tobey v. Hakes, 54 Conn. 274-75 (1886), cases.

MANDAREmain

Burrill's Law Dictionary • 1870

Lat. In old practice. To command. Hence the term mandamus, (q. v.) although præcipere or præcipimus, (qq. v.) was the usual word in writs. To commit. Mandare executioni; to commit to execution, to put in execution. Clerke's Prax. Cur. Adm. tit. 58, 59. To make return to a writ. Si fraudulenter mandavit quod ille qui attachiari debuit non fuit inventus in ballivá sua; if he has fraudulently returned that he who ought to be attached was not found in his bailiwick. Bract. fol. 441 b. Si vice comes mandaverit; if the sheriff have returned. Stat. Westm. 2, c. 9. In the civil law. To give in charge; to commit to one's care; to request another to do some act for one. Dig. 17. 1. 2. Qui mandat ipse fecisse videtur. He who requests [another to do an act for him] is supposed to have done it himself. Story on Bailm. § 147. Mandata licita recipiunt strictam interpretationem, sed illicita latam et extensam. Lawful commands receive a strict interpretation, but unlawful commands a broad and extended one. Bac. Max. reg. 16.

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