When the court disagrees
Reader Suzanne Matson has clearly been taking a page from The Legal Genealogist‘s book, and reading old court records. There isn’t any other explanation for the question she sent in while the FGS cruise was underway last week:
“When you return to dry land and more stable internet, would you explain further sed non allocatur?,” she asks. “Under what conditions would the court disagree with the arguments of counsel?”
The phrase sed non allocatur appears, as the question suggests, in court records — older court records, of course, and most commonly in court opinions. It’s a Latin phrase that means “but it is not allowed,” and it’s “used in the old reports, to signify that the court disagreed with the arguments of counsel.”1
Looking at some examples of the phrase being used in context is the best way to get a feel for how and when the phrase was used. The following are all drawn from volume 78 of The English Reports: King’s Bench — and they’re all cases from the 16th century:2
In The Lord Dacre’s Case, “He was indicted for encroaching upon the highway ; and exception taken, because it was not expressed of what place he was. — Sed non allocatur, for process of outlawry lieth not against him, but distress…”3 The defendant in that case had argued that he couldn’t be charged with encroaching on the highway if the charge didn’t set out where he was from. But the court disagreed (sed non allocatur) since that was only an issue if the charge was outlawry, and that’s not what he was charged with.
In the case of Marsh against Astry, where an under-sheriff was sued for not executing a writ, on appeal the attorney argued that “the action lieth not against the under-sheriff, but ought to be brought against the sheriff himself ; for he is responsible for all things concerning the office;” and the court responded: “Sed non allocantur (sic). For first, the under-sheriff for a tort done by himself may be punished. And here it is alledged, that he … intending to delay the plaintiff of the execution of his writ, did not return it : so it is as an embezzling of the writ, for which he is punishable…”4 In short, the court said it didn’t agree with the argument that only the sheriff was responsible if the under-sheriff didn’t do his job.
In Long’s Case, the defendant William Long was convicted of stealing a piece of linen cloth and, on appeal, argued that the indictment was faulty because it “doth not shew within what parish and ward of the city he did it, &c. and it was alledged (as the truth is) that there are in that city twelve wards, and two-and-thirty parishes.” The court responded: “Sed non allocatur : for the Court takes not any cognizance of such parishes and wards…”5 In other words, the court said it didn’t matter what parish or ward the crime occurred in; it only mattered that is was — as charged — within the City of Norwich and County of Norfolk.
In the case of The Earl of Lincoln versus Flower, the Earl had lost a debt case and argued on appeal that “because he was a peer of the realm, and a capias lies not against him. — Sed non allocatur. For by this plea found against him a fine is due to the Queen : and none shall have any privilege against the Queen…”6 The court there didn’t buy the idea that a nobleman could get away with something when it was the Queen to whom the debt was owed.
Starting to get the idea here?
Pretty clear to see, when you see the phrase coming up over and over and over like this, that it’s a boilerplate phrase that signifies the start of a judicial ruling against whatever argument is being raised.
It’s essentially part of a formula: the court lays out the argument of the attorney or person bringing the appeal, then says (in Latin) nope, nope, nope, we don’t buy it, then adds a reason why it doesn’t buy it. And you’ll find cases where the court doesn’t even bother saying why it doesn’t agree; it simply says it doesn’t.
Remember that anyone who could afford it was entitled to appeal any lower court decision he didn’t like. The appeal might suggest that the facts were other than what the lower court found them to be or that the law was wrongly applied. Those would be the arguments raised by the person bringing the appeal.
In reality, of course, the reason for an appeal then — as now — was often less that there was real legal merit to the appeal than that at least that an appeal would delay things.
So then — as now — the judge or judges hearing the appeal wouldn’t waste a lot of time on arguments that lacked real legal merit and with which the court disagreed.
Today, the court might simply say, “We disagree,” with a sentence or two saying why.
In older opinions, they’d say it differently.
Sed non allocatur.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1074, “sed non allocatur.” ↩
- Max A. Robertson and Geoffrey Ellis, editors, The English Reports: King’s Bench (1378-1865) (Edinburgh: William Green & Sons, 1907), volume 78; digital images, Google Books (http://books.google.com : accessed 6 Sep 2015). ↩
- Ibid., at 406. ↩
- Ibid. at 432. ↩
- Ibid., at 740-741. ↩
- Ibid., at 753. ↩