Definition
Licentia is a Latin term meaning license, leave, liberty, or permission. In historical English law and practice, it appears most often as a component of formal procedural terms rather than as a freestanding doctrine. Its significance lies almost entirely in its derivative compound forms, each naming a discrete procedural step in the old courts of common law and in the conveyancing practice of levying fines.
The principal compounds found in the historical sources are:
1. Licentia concordandi — Literally "leave to agree." A formal step in the procedure for levying a fine of lands. When an action was brought for the purpose of creating a fine, the defendant — understood by legal fiction to recognize his wrong — was supposed to offer terms of accommodation to the plaintiff. The plaintiff, having given pledges to prosecute his suit, could not simply abandon it without the court's permission. That permission, once obtained, was the licentia concordandi. It preceded the formal note of the fine and was the procedural gateway through which the parties entered into the concord, or agreed settlement, that became the fine itself.
2. Licentia loquendi — Literally "leave to speak." An older practice term for the leave granted to a defendant to confer (impar) with the plaintiff before answering, known also as imparlance. The court's permission to speak — to negotiate, to seek accommodation — was formally required, and licentia loquendi named that permission.
3. Licentia surgendi — Literally "license to arise." A license granted in old English practice, permitting a party who had been required to remain before the court (or whose legal position required royal permission to proceed) to rise, depart, or take action.
Common Confusion
Licentia is sometimes treated as synonymous with the English word "license" in modern readings of historical texts. The overlap is real but incomplete. The Latin licentia in legal usage carries a narrower procedural register than the English "license": it names the formal grant of leave by a court or sovereign in a specific proceeding, not merely the general permission to do an act. Readers encountering licentia in translated or Latinized texts should identify which compound form is intended before mapping it onto the modern concept of license.
Why It Matters in Research
Licentia appears in historical sources almost never standing alone. Researchers will encounter it almost exclusively in the context of fine-levying procedure — one of the most important conveyancing mechanisms of medieval and early modern English law — and in old common law pleading texts dealing with imparlance. Several specific research traps apply:
The procedure for levying fines (a collusive action used to transfer or settle title to real property) involved a sequence of technical steps, each with its own Latin name. Licentia concordandi was one of those steps, and understanding it requires understanding the fine as a whole. Pulling licentia concordandi out of that procedural sequence and reading it in isolation will produce a distorted picture of its function.
The term licentia loquendi connects directly to the imparlance doctrine. Anderson's dictionary cross-references to imparlance without elaboration; researchers following this trail should consult the imparlance entry to understand how leave-to-speak functioned as both a delay mechanism and a negotiating opportunity in common law pleading.
These terms are primarily of significance in English legal history through the seventeenth century and in American colonial legal practice that inherited English forms. After the procedural reforms of the nineteenth century — particularly the English Common Law Procedure Acts and the American Field Code reforms — fine-levying and formal imparlance practice fell away. The terms appear in modern research mainly when interpreting historical deeds, title chains, or pre-reform pleading records.
Historical Dictionary Support
The four source dictionaries present licentia with a high degree of agreement. Burrill identifies the root (from licere, to be lawful) and gives the core definition — license, liberty, permission — consistent with Bouvier. Black's focuses on the compound terms and provides brief procedural context for each. Bouvier offers the most substantive treatment, walking through the procedural logic of licentia concordandi within the fine-levying sequence.
Anderson's entry for licentia is notably terse, redirecting immediately to the imparlance entry. This reflects the dictionary's organizational choice to treat licentia loquendi as inseparable from imparlance doctrine rather than as a standalone term — a defensible approach but one that leaves the fine-levying compounds unaddressed.
None of the historical dictionaries provides a comprehensive treatment of the full fine-levying procedure in which licentia concordandi sits. Researchers should supplement these dictionary entries with treatise-level sources on common law conveyancing to understand the full procedural context.
Jurisdictional Note
Licentia and its compounds are terms of English common law and equity practice. They do not appear as operative terms in modern American, English, or Commonwealth statutes. Their relevance is primarily historical: English practice through the seventeenth century, American colonial and early republic practice, and historical title research.