Definition
A formal suggestion, allegation, or statement offered to a court to prompt judicial action or establish a procedural foundation for a claim. The term operates in at least three distinct historical contexts:
1. General procedural use: A surmise is a suggestion or allegation offered to a court as the basis for granting a writ or initiating a proceeding — such as a writ of prohibition, audita querela, or scire facias. The surmise supplies the court with the factual premise it needs to act.
2. Local custom pleading: In older English practice, when a defendant pleaded a local custom (such as a custom of the City of London), the defendant was required to surmise — that is, to formally suggest — that the custom be certified to the court by the mouth of the recorder. Without this surmise, the custom question would be tried as an ordinary issue of fact before the country, rather than certified by official record.
3. Ecclesiastical practice: In ecclesiastical court proceedings, a surmise is an allegation contained in a libel (the initiating pleading). A collateral surmise is a surmise of some fact that does not appear on the face of the libel itself — a supplementary factual allegation introduced alongside the main pleading.
Common Language
Modern common usage (Wiktionary): Thought, imagination, or conjecture, which may be based upon feeble or scanty evidence; suspicion; guess.
Historical common usage (Webster's 1913): A thought, imagination, or conjecture based upon feeble or scanty evidence; suspicion; guess. Associated with uncertainty and speculation.
The gap here is significant. In ordinary English, a surmise is inherently tentative — something guessed at without sufficient evidence, often carrying a mildly pejorative implication. In legal usage, a surmise is a formal, purposeful allegation made to a court. It is not speculation; it is a procedural instrument. A researcher encountering the term in historical legal sources should resist the instinct to read it as mere conjecture.
Common Confusion
The common meaning of surmise (guess, conjecture) can mislead readers of historical legal texts into thinking a surmise was an informal or weak assertion. It was not. A surmise in legal practice was a required formal allegation — its absence could be fatal to a pleading or cause the matter to be resolved by the wrong procedure. The confusion is compounded by the fact that even nineteenth-century legal writers sometimes used the word in its ordinary English sense within the same sources that also use it technically.
Why It Matters in Research
Surmise is a term whose legal significance is almost entirely historical. It appears in pre-nineteenth-century English procedural law and ecclesiastical practice but has no direct counterpart in modern American or English civil procedure. Researchers will encounter it primarily in older case reports, abridgments, and ecclesiastical court records.
Several traps exist. First, the term shifts function: used as a verb, it means to formally suggest to a court; used as a noun, it names the suggestion itself or the formal allegation. Burrill's entries capture both uses. Second, in ecclesiastical law the term overlaps with the vocabulary of the libel — the initiating pleading in those courts — and should be understood in that distinct procedural context rather than mapped onto common law pleading concepts. Third, the collateral surmise (a surmise of facts outside the libel) creates a sub-category that matters when reading ecclesiastical records: it signals that the court is being asked to act on facts beyond those formally pleaded.
The local custom context connects surmise to a broader set of questions about how English courts handled proof of customary law — a topic that surfaces in property disputes, borough franchise cases, and guild litigation. The procedural requirement of surmising a custom for recorder certification was a mechanism for distinguishing between facts provable by local official record and facts that had to go to a jury. Missing this distinction when reading early modern English reports will produce misreadings of the pleading record.
Corpus researchers should also note that surmise appears in scire facias practice (Burrill cites its use in that context) and in prohibition proceedings. In both, it is the factual predicate offered to justify an extraordinary writ — analogous in function, if not in form, to the modern showing required for extraordinary relief.
Historical Dictionary Support
The historical sources are unusually consistent for a term of this age and complexity. Black's (both editions), Bouvier's, Anderson's, and Burrill's all converge on the core meaning: formal suggestion or allegation offered to a court. The Burrows and Viner abridgment references cited by Black's and Bouvier's point to the same source material for the local custom rule.
Rapalje & Lawrence add the useful gloss that surmise means "suggestion or allegation" in its general sense, and then specify the ecclesiastical usage, citing Phillimore's Ecclesiastical Law — a reference repeated across multiple dictionaries, suggesting it was the standard authority on the point.
What the historical dictionaries do not fully address is the relationship between surmise and the sufficiency of pleading. They describe the requirement without explaining the consequence of a defective or absent surmise in detail. Burrill's entries are the most texturally rich, offering actual case-language examples that show the word in use in reported decisions, which is useful for corpus researchers working with primary sources rather than secondary definitions.
None of the historical dictionaries flag the divergence between the legal and common meanings — an omission that likely reflects the assumption of legally trained readers. Modern researchers working outside that assumption need to supply the distinction themselves.
Jurisdictional Note
Surmise as a technical legal term is essentially confined to English law and the ecclesiastical courts that operated under English ecclesiastical jurisdiction. It did not transplant into American practice in any formal procedural sense. American legal dictionaries carry it as a historical entry. Researchers working in American sources after the early nineteenth century are unlikely to encounter the term in its technical legal sense.