Not a physical act!
It came up again just last week, in a legal document from the late 1700s in New York State that a fellow genealogist needed help understanding.
It’s a phrase often seen in court pleadings from years ago — and one that’s not used at all in modern legal filings.
So it’s a phrase that even The Legal Genealogist had to look up the first time around.1
The phrase: “upon the country.”
Let’s revisit just what this is, using an example from the Nolan County, Texas, District Court, in 1895, in a case where C.A. Culberson, Governor of Texas, filed suit against J.W. Collins.2
Collins, the suit alleged, was the owner of 160 acres in Nolan County originally sold to J. Asberry Jr. on 17 September 1881 for $1 an acre, with a note for $152 at eight percent interest.
As of 1893, the complaint continued, the interest owed was $85.12, and it asked the court to eject the defendant from the land for the benefit of the school fund and for the $85.12 in interest, together with costs of suit.3
In the November term, J.F. Eidson, the attorney for the defendant, filed Collins’s answer. It’s a two-paragraph pre-printed form, and here’s the second paragraph:4
Okay. Just what the heck does that mean?
Sure, the “denies all and singular the allegations in plaintiff’s petition” is clear, but then comes that goofy part: what in the world is this defendant doing when he “puts himself upon the country”?
As much as I love the mental image of someone physically throwing himself down on the ground in a temper tantrum, that — of course — isn’t what this is.
Going to the country, in the language of the law, happened “when a party, under the common-law system of pleading, finished his pleading by the words ‘and of this he puts himself upon the country’… (T)his was called ‘going to the country.’ It was the essential termination to a pleading which took issue upon a material fact in the preceding pleading.”5
To put, in the law, in a pleading like an answer, was “to confide to; to rely upon; to submit to. As in the phrase, ‘the said defendant puts himself upon the country;’ that is, he trusts his case to the arbitrament of a jury.”6
This was also called a tender of issue: “A form of words in a pleading, by which a party offers to refer the question raised upon it to the appropriate mode of decision. The common tender of an issue of fact by a defendant is expressed by the words, ‘and of this he puts himself upon the country.’”7
In other words, in plain English, the defendant was telling the plaintiff to put up or shut up — to prove the case to the jury.8
The same term was used when a criminal defendant pleaded not guilty, though the Latin phrase ponit se super patriam or abbreviation po. se. might be used then.9
Where exactly the phrase came from isn’t clear, though it does sound as though it was an appeal to the broader community to judge the case.
But wherever it comes from, that’s what it means whenever you see it in a legal document: okay, other side, prove it to the jury.
Cite/link to this post: Judy G. Russell, “Prove it!,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 7 Feb 2022).
- No matter what my nieces and nephews think, I did not go to law school in the Middle Ages. ↩
- An earlier version of this post was published in 2013. Judy G. Russell, “Upon the country,” The Legal Genealogist, posted 25 Apr 2013 (https://www.legalgenealogist.com/blog : accessed 7 Feb 2022). ↩
- Nolan County, Texas, District Court case file 455, Culberson v. Collins, complaint, April term 1895; District Court Clerk Archives, Sweetwater; digital images, DGS film 004236135, image 396, FamilySearch.org (https://www.familysearch.org/ : accessed 7 Feb 2022). ↩
- Ibid., Culberson v. Collins, answer; DGS film 004236135, image 401. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 542, “going to the country.” ↩
- Ibid., 969, “put.” ↩
- Ibid., 1160, “tender of issue.” ↩
- See also The Free Dictionary (https://www.thefreedictionary.com/ : accessed 7 Feb 2022), “To put one’s self upon the country” (“to appeal to one’s constituents; to stand trial before a jury”). ↩
- Black, A Dictionary of Law, 910, “ponit se super patriam.” ↩
I do find your legal blogs fascinating, and always love your sense of humour (of course you weren’t around in the Middle Ages … )
Sigh… well, if you ask the kids… 🙂
So the OED does provide a definition for “to go to the country” or “to appeal to the country”, cited as early as 1791, to mean “to test public opinion by dissolving Parliament and holding a general election”. So at least this meaning appears to be related to the one in which a jury is trusted. They all give a sense of “I throw myself on the wisdom of the public.”
That’s very cool! Thanks!