Definition
A writ used in American practice to remove judgments rendered by justices of the peace to a higher court for review. The recordare functioned as a mechanism of appellate oversight over inferior tribunal decisions, allowing a party aggrieved by a justice of the peace's judgment to bring that judgment before a superior court. The writ is closely associated with North Carolina practice in the reported authorities, though it appeared in other American jurisdictions as a mode of review distinct from certiorari.
The related Latin phrase RECORDARI FACIAS LOQUELAM names a distinct but cognate writ used in English practice to remove a suit or plaint in replevin from a lower court to a higher one. The two writs share a Latin root — recordare, to recall or remember — and a common function of transferring proceedings upward, but they operate in different procedural contexts.
Common Confusion
The recordare is sometimes conflated with the writ of certiorari, which serves the same broad purpose of bringing inferior court proceedings before a superior court for review. The distinction matters historically: certiorari was the more universal common-law writ applicable across a wide range of inferior proceedings, while the recordare was a more narrowly tailored instrument specifically directed at justices of the peace judgments in American state practice. Researchers who encounter recordare in nineteenth-century American sources should not assume the procedural rules governing certiorari apply interchangeably. The recordari facias loquelam is a further distinct writ applicable to replevin proceedings removed from local courts in English practice — do not conflate it with the American recordare simply because the names are related.
Why It Matters in Research
The recordare is a term of limited but precise scope, appearing most frequently in nineteenth-century American state court opinions and procedural treatises dealing with justices of the peace — a category of inferior tribunal that has largely disappeared from modern American court systems. Researchers working in antebellum and post-Civil War state court records, particularly from North Carolina and neighboring Southern states, are most likely to encounter it.
Several research traps apply. First, the writ's disappearance from modern practice means contemporary legal databases index it poorly; searching for recordare in modern annotated codes will usually return nothing. The productive research path runs through nineteenth-century state reporters and treatises on local or inferior court procedure. Second, the distinction between the recordare and certiorari is blurred in some older sources that treat them as equivalent — verify which writ was actually being sought before drawing procedural conclusions. Third, the English writ of recordari facias loquelam, which appears in some of the same dictionary entries, is not the same instrument; it belongs to replevin practice and has a separate procedural history rooted in English common law. Conflating the two produces research errors in both directions.
Jurisdictional awareness is essential: the recordare was not a uniform national writ. Its availability, procedure, and scope varied by state, and some states never recognized it as distinct from certiorari. A finding in North Carolina authorities cannot be assumed to govern analogous proceedings in other states.
Historical Dictionary Support
The four source dictionaries — Black's (both editions), Bouvier's, and Burrill's — are in close agreement on this term, all defining it with near-identical brevity: a writ to bring up judgments of justices of the peace, each citing the same North Carolina authority (3 Jones' N.C. Law Reports 491, reported as Halcombe v. Loudermilk, 48 N.C. 491 in Black's second edition). The consensus of the shelf sources is notable for its narrowness: none of the four dictionaries elaborates on the writ's procedure, the grounds for its issuance, or its relationship to certiorari. Burrill adds the descriptor "L. Lat." (Law Latin), which is accurate and contextually useful. Black's first edition is alone in appending a note on the related recordari facias loquelam, flagging the English replevin removal writ as a cognate but distinct instrument.
What the historical dictionaries collectively miss is any treatment of how the recordare functioned in practice — what showings were required, what courts could issue it, and how it was distinguished procedurally from certiorari in the jurisdictions that recognized both. Researchers should not expect the dictionary sources to supply this; treatises on justices of the peace practice from the relevant period are the appropriate next source.
Jurisdictional Note
The recordare appears most prominently in North Carolina authorities and in states with similar justice of the peace court structures. It was not recognized uniformly across American jurisdictions, and in many states certiorari entirely displaced any need for a separate recordare writ. English sources will reference the recordari facias loquelam in replevin contexts — a different instrument under a similar name.