INITIALIA TESTIMONII - The Law Mind Legal Dictionary

INITIALIA TESTIMONIIAuthored

The Law Mind • 816 words

Definition

A Latin phrase from Scots law meaning "preliminaries of testimony." Initialia testimonii refers to the preliminary examination of a witness conducted before that witness was examined in chief — that is, before substantive testimony was taken. The examination probed the witness's potential bias, partiality, or corruption: whether the witness bore ill will toward either party, had been coached or prompted, or had received any bribe or inducement. The purpose was to assess the witness's competency and credibility before allowing substantive testimony to proceed.

The procedure is broadly analogous to the voir dire examination of witnesses in English and American practice, but historically operated on a somewhat wider range, permitting inquiry into a broader set of preliminary matters affecting the witness's reliability.

Common Confusion

Initialia testimonii is frequently equated with the English voir dire, and the analogy is useful but imprecise. Voir dire in English practice focused primarily on witness competency — legal disqualifications such as interest in the outcome or lack of sworn belief. The Scottish initialia testimonii was more expansive, encompassing questions of bias, prompting, and corruption that might not rise to a formal legal disqualification but nonetheless bore on credibility. Researchers working across Scots and English legal sources should not treat the terms as exact equivalents.

Why It Matters in Research

This is a term of narrow geographic and temporal scope: it belongs to historical Scots law and is unlikely to appear in English, Irish, or American primary sources except by comparative reference. Researchers encountering the term in older Scots legal records or treatises should understand it as a procedural mechanism that preceded substantive examination, not a standalone proceeding.

Several navigational points merit attention:

First, the term appears in close proximity to its companion phrase in initialibus. Burrill's cross-reference to "See In initialibus" signals that these are related but distinct concepts — in initialibus refers more broadly to preliminary matters in legal proceedings, while initialia testimonii is the specific application to witness examination. Researchers should follow that cross-reference carefully and not conflate the two.

Second, the historical sources draw on Wharton and Bell's Dictionary for Scots law context. Researchers who cannot locate the term in Black's or Burrill's directly should consult Bell's Dictionary of the Law of Scotland, which is the deeper primary source for Scots procedural terminology.

Third, the voir dire analogy, while useful for orientation, can mislead. Modern voir dire in American practice is most commonly associated with jury selection, not witness examination — a meaning that did not exist when initialia testimonii was in active use. A researcher reading a nineteenth-century comparative legal text that invokes this term should not import contemporary voir dire doctrine.

Fourth, the ecclesiastical law material that appears in the Rapalje & Lawrence entry is an artifact of source compilation, not a genuine definitional extension of initialia testimonii. The inhibition material that follows in that entry belongs to a separate term and should be disregarded when researching this one.

Historical Dictionary Support

The three source dictionaries agree closely on substance. All three identify the term as belonging to Scots law, all define it as a preliminary examination of witnesses before examination in chief, and all invoke the voir dire analogy. Burrill and Black both cite Wharton as their authority, and Burrill adds a cross-reference to Bell's Dictionary, confirming that the deeper Scots law sources underlie all three entries.

The points of divergence are minor but instructive. Rapalje & Lawrence provides the most substantive content, specifying the actual subject matter of the examination — ill will toward the parties, prompting, and bribery — giving researchers a clearer functional picture of what the examination actually covered. Black's and Burrill's descriptions are more summary. Burrill's entry is partially corrupted in the available text, with extraneous Latin material from an unrelated entry appearing in the body, likely a typesetting artifact; researchers should treat the Burrill entry with caution and rely on Rapalje & Lawrence or Wharton for the fuller account.

None of the historical dictionaries address when the practice fell into disuse, how it was documented in Scots court records, or its relationship to the broader development of evidence law in Scotland. These are gaps that Bell's Dictionary and Scottish institutional writers (Stair, Erskine, Bankton) would need to fill for researchers working in depth.

Jurisdictional Note

Initialia testimonii is specific to historical Scots law and has no direct parallel in English common law jurisdictions beyond the imperfect voir dire analogy. It will not appear as operative doctrine in English, Irish, or American legal proceedings. Researchers working in comparative legal history or in the history of evidence law may encounter the term in secondary literature discussing the Scottish legal tradition's distinct approach to witness examination.

INITIALIA TESTIMONIImain

Black's Law Dictionary • 1891

In Scotch K law. Preliminaries of testimony. The pre- liminary examination of a witness, before examining him in chief, answering to the voir dire of the English law, though taking a somewhat wider range. Wharton.

INITIALIA TESTIMONIImain

Rapalje & Lawrence • 1888

-In former times, before examining a witness in chief, in Scotland, he was first examined as to his disposition towards the parties, whether he bore illwill to either of them, or had been prompted what to say, or had received any bribe. It is somewhat similar to our voir dire (q. v.) 3. In ecclesiastical law, an inhibition is (1) a writ forbidding a judge from further proceeding in a case depending before him, as where an appeal is brought against a sentence pronounced by him. (Phillim. Ecc. L. 1274.) In appeals to the Privy Council, the inhibition and monition for process (see PROCESS) issue simultaneously. (Macph. P. C. Pr. 175.) (2) An order inhibiting or forbidding an incumbent to perform any service of the church or otherwise exercise Wend. (N. Y.) 443. INITIALS, (indorsed upon a bank check). 6 (of Christian name, when sufficient). the cure of souls for a certain period, or until he obeys a certain monition or order. Public 6 Dowl. & Ry. 626. Worship Regulation Act, 1874, § 13; Order in Council, 28th June, 1875, form 25. § 4. Inhibition and citation. Under the former practice of the Privy Council in admiralty appeals, as soon as the petition of appeal had been lodged an inhibition and citation might be issued, prohibiting the court below, and the respondent, from proceeding in the cause pending the appeal, and citing the respondent to enter an appearance to the ap appeal. (Wms. & B. Adm. Pr. 314.) Relaxation of the inhibition was a kind of writ dissolving the inhibition in cases where the appeal had not been prosecuted with due diligence. (Id. 318.) Admiralty appeals now lie to the Court of Appeal, (Judicature Act, 1873, § 18; Judicature Act, 1875, § 4,) and this practice is therefore obsolete. 5. In the Scotch law, a process to restrain the sale of land in prejudice of a debt; also, a writ to prohibit credit being given to a man's wife. INHOC, or INHOKE. -Any corner or part of a common field ploughed up and sowed with oats, &c., and sometimes fenced in with a dry hedge, when the rest of the field lies fallow. -Kern. Glos. Iniquum est aliquem rei suæ esse judicem. In propria causa nemo judex sit (12 Co. 13): It is unjust for any one to be judge in his own case. No one should be a judge in his own cause. See Dimes v. G. J. C. Co., 3 H. L. Cas. 759. (of middle name, in a deed). 14 Pet. 322. (U. S.) Nott. & M. (S. C.) 171. (of non est inventus, upon a capias). 1 (of witness to a will). 5 Johns. (Ν. Υ.) 144. INITIATE, TENANT BY CURTESY.- The husband is so called, when a child is born, capable of inheriting the land subject to his curtesy. See CONSUM-

INITIALIA TESTIMONIImain

Burrill's Law Dictionary • 1870

L. Lat. In Scotch law. Preliminaries of testimony. The preliminary examination of a witness, before examining him in chief, answering every thing that is not right. Id. fol. 378. to the voir dire of the English law, though Est injuria omne quod non jure fit. Fleta, taking a somewhat wider range. Wharlib. 2, c. 1, § 1. These definitions are from ton's Lex. Bell's Dict. See In initialibus. the civil law. See infra. Non omne dam-

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