Definition
Latin term with two distinct uses in historical legal contexts:
1. A day appointed for argument. A scheduled hearing at which both parties present their arguments to the court. Used specifically for the day set for argument of a demurrer or of assigned errors on appeal. The term denoted the procedural moment — the sitting of argument — rather than the substance of what was argued.
2. Counsel or advice, particularly in criminal liability. In older common law usage, consilium referred to the advice or counsel given by one person to another to commit a crime — one of the recognized modes of accessorial participation. The phrase de forcia, consilio, præcepto, auxilio vel receptamento (of force, counsel, commandment, aid, or harboring) appears in historical sources enumerating the grounds of accessorial criminal liability.
Common Confusion
The two meanings of consilium are entirely distinct in function and context. The first is procedural: a court date or argument day. The second is substantive criminal law: the act of advising or inciting another to commit a crime. A researcher encountering consilium in a historical procedural text (such as Tidd's Practice) is reading about scheduling of arguments. A researcher encountering it in a criminal or accessorial liability context is reading about one of the contributing acts that made a person an accessory. Conflating these leads to significant misreading of historical sources.
Recognized Forms
/SUBTYPES
Pro consilio impendendo: For counsel to be given. Used in fee arrangements or obligations requiring legal advice to be rendered in the future.
Pro consilio impenso: For counsel given. The past-tense counterpart; used in compensation contexts for advice already rendered.
Consilia multorum requiruntur in magnis: A maxim — the counsels of many are required in important matters. Cited in Coke's Institutes as a principle favoring deliberative decision-making in weighty affairs.
Why It Matters in Research
This term is a trap for the unwary because it carries distinct meanings depending entirely on context, and historical dictionaries do not always signal which meaning applies. Black's (both editions) defines consilium only in its procedural sense — the appointed day for argument — while Burrill's Law Dictionary captures the fuller picture, including the accessorial liability usage and the Latin maxim from Coke.
Researchers working with English common law pleading records, particularly writs of error or demurrer practice, will encounter consilium as a scheduling term. It marks a procedural moment analogous to what modern practice would call a hearing or argument date. Tidd's Practice is the primary historical source for this usage.
Researchers working with criminal law history, particularly accessorial liability before codification, will encounter consilium as one of the enumerated modes of participation in crime alongside force, commandment, aid, and harboring. The phrase de forcia, consilio, præcepto, auxilio vel receptamento appears in early treatise and statutory contexts as a catalogue of the ways a person could be implicated in another's criminal act.
Anderson's entry redirects to INOPS — likely for inops consilii (lacking counsel or advice), a concept relevant to incapacity or excused conduct — which is an entirely different doctrinal territory. Researchers following Anderson's cross-reference should not assume they are still tracking the same sense of consilium.
For corpus researchers: when indexing or searching historical sources, treat these as functionally separate terms requiring context disambiguation. The presence of demurrer, errors assigned, or procedural scheduling language signals the first meaning. The presence of accessory, forcia, præceptum, or criminal participation language signals the second.
Historical Dictionary Support
Black's Law Dictionary (1st and 2nd editions) present identical definitions focused on the procedural meaning, citing Tidd's Practice for the proposition that consilium is the day appointed for argument of a demurrer or assigned errors. This is the narrower, court-practice definition.
Burrill's Law Dictionary is the richer source. It captures the Latin root meaning (counsel; advice), provides the criminal law usage (the act of an accessory in advising another to commit a crime), quotes the maxim from Coke's Fourth Institute, and supplies the pro consilio impendendo / pro consilio impenso distinction from Dyer's Reports. Burrill's treatment makes clear that consilium carried significant weight outside the courtroom as a term of substantive legal art.
Anderson's cross-reference to INOPS is unhelpful in isolation but points toward a related legal concept (inops consilii) that researchers should separately track.
What the historical dictionaries collectively miss: a clear signal that these are functionally two different legal terms sharing a Latin root, not a single concept with variants. Modern research requires treating them accordingly.
Jurisdictional Note
Consilium in both senses is a term of English common law, appearing in English practice manuals, early reports, and Coke's Institutes. It does not appear as a term of art in American statutory law, but it surfaces in early American courts applying common law pleading rules and in treatises discussing accessorial criminal liability inherited from English doctrine.