Definition
In old legal practice, *instantia* (Latin) referred to the diligent and speedy prosecution of a legal action — the quality of pressing forward a suit without unreasonable delay. The term carried both a procedural sense (the active pursuit of a case) and a normative expectation (that a party who brought suit had an obligation to advance it with dispatch). Failure to maintain *instantia* could have consequences for the continued life of the action.
In the broader Roman and canon law traditions from which the term descends, *instantia* also denoted the instance or stage of a proceeding — the life of an action as it stood at a given moment before a tribunal. An action could be said to exist in its first *instantia* before a lower court, and a second *instantia* on appeal. This second meaning became particularly important in continental civil procedure and in ecclesiastical courts.
The term does not survive in active use in modern Anglo-American common law and appears almost exclusively in historical sources dealing with medieval English practice, canon law procedure, or treatises drawing on the civil law tradition.
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Common Language
Modern common usage (Wiktionary): *Instance* in ordinary English means a particular occurrence or example of something ("in this instance"). In computing, it refers to a running copy of a program.
Historical common usage (Webster's 1913): Webster records *instance* as meaning urgency or importunity; also a process or suit in law; and, more generally, an example or case cited in argument. Webster preserves the procedural sense: "court of first instance" and "at the instance of" (meaning at the request or instigation of) are both noted.
The gap worth noting: English legal usage absorbed the Latin *instantia* through the word *instance*, and that word has remained in legal circulation — "court of first instance," "at the instance of the plaintiff" — long after the Latinized form *instantia* became archaic. Researchers who encounter *instance* in legal sources are often reading a direct cognate of *instantia* without recognizing the connection. The procedural meaning (urgency; active prosecution) has largely dropped from English usage, leaving only the procedural-stage meaning and the "at the instance of" formula.
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Why It Matters in Research
**Identifying the term in historical sources.** *Instantia* appears in medieval English treatises that drew heavily on Roman and canon law, including Fleta — the source Burrill cites directly. Researchers working in pre-modern English procedural history, or in records of ecclesiastical courts, will encounter this term in Latin text and need to distinguish its two operative meanings: (1) the active prosecution / diligence sense, and (2) the procedural stage / instance sense.
**The peremption trap.** In canon law procedure, failure to maintain *instantia* — that is, failure to prosecute with sufficient diligence over a defined period — could result in *peremption* of the instance (extinguishment of the suit). This doctrine had a direct analog in later English common law rules about non-prosecution and dismissal. Researchers tracing the history of rules governing laches, non-suit, and dismissal for want of prosecution will find *instantia* and its associated doctrine of *peremptorium instantiae* to be important background.
**The "court of first instance" connection.** The stage-of-proceedings meaning of *instantia* is the direct ancestor of the phrase "court of first instance," which remains in active use in international law, civil law systems, and comparative law materials indexed in the Law Mind corpus. Researchers using international or comparative materials should be alert to this lineage.
**Corpus navigation note.** Because *instantia* is a Latin term appearing in largely untranslated passages of medieval and early modern treatises, full-text corpus searches should account for variant spellings and abbreviations common in manuscript and early print sources. The English derivative *instance* will surface far more frequently and often carries the same doctrinal meaning in translated or anglicized texts.
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Historical Dictionary Support
Burrill's entry is brief but precise: "Despatch; speedy prosecution," with a citation to Fleta, lib. 2, c. 65, § 10. Burrill captures the diligence/urgency sense without developing the stage-of-proceedings sense, which is the meaning that had greater long-term doctrinal influence through canon law and civil law procedure.
Historical legal dictionaries generally underserve this term. The civil law dimension — where *instantia* as a procedural stage was a technical concept generating rules about joinder, suspension, and extinguishment of suits — is better treated in treatises on Roman-canon procedure than in English law dictionaries, which encountered the term mainly through Fleta and similar works rather than through direct engagement with civilian doctrine.
Researchers should not rely on Burrill alone. The entry functions as a pointer to Fleta rather than a complete doctrinal account.
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Jurisdictional Note
The term is effectively confined to historical English common law sources influenced by Roman-canon procedure, and to ecclesiastical court records. It has no operative meaning in modern Anglo-American statutory or common law. Civil law systems retain the concept through cognate terms (*instancia* in Spanish law, *instance* in French procedural law), but these are best treated as related terms rather than direct continuations of the same legal term.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Civil Procedure (Historical); Canon Law and Ecclesiastical Courts; Roman Law in English Legal History.
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