Definition
In legal drafting and pleading, tense refers to the grammatical time-form of verbs used in legal instruments, court records, and operative legal language. At common law, distinct rules governed which tense was required for different classes of legal documents:
1. Acts of a court — orders, judgments, and judicial records — are expressed in the present tense, reflecting their operative and continuing authority.
2. Acts of a party — deeds, conveyances, contracts, and other instruments by which a private party creates or transfers a legal right — may be expressed in the perfect tense, reflecting completed action.
3. Continuances in pleading are recorded in the perfect tense.
4. A contract of marriage must be made in the present tense. Language expressing a future intention ("I will take you as my spouse") was historically insufficient to constitute a valid marriage at common law; only present-tense words of present consent ("I take you") completed the sacrament and the legal act.
Common Language
Modern common usage (Wiktionary): To apply a tense to; as a noun, a grammatical category indicating the time of an action or state.
Historical common usage (Webster's 1913): One of the forms which a verb takes by inflection or by adding auxiliary words, so as to indicate the time of the action or event signified; the modification which verbs undergo for the indication of time.
The legal meaning does not depart from the grammatical sense but imposes normative rules on top of it. In ordinary usage, tense is purely descriptive — a feature of language. In law, tense is prescriptive: using the wrong tense in a pleading, judgment, or marriage ceremony was not a stylistic flaw but a potential legal defect that could invalidate the instrument or record.
Common Confusion
The marriage-tense rule is the most practically significant and the most misunderstood. The distinction between present-tense words of present consent ("I take") and future-tense words of promise ("I will take") determined whether a marriage was constituted at common law. This is not a matter of grammatical preference; it tracks the canonical doctrine of verba de praesenti versus verba de futuro. Future-tense marriage promises created an informal betrothal, not a marriage — unless followed by consummation, which could, under some authorities, elevate the agreement to a valid union. Researchers conflating the two forms will misread historical marriage records, annulment proceedings, and legitimacy disputes.
Why It Matters in Research
Tense rules surface in three research contexts where careless reading causes errors:
First, in pleading and record analysis: when examining historical common-law pleadings, continuances, and court orders, the tense used is a signal of document type and procedural posture, not a scribal accident. A record drafted in the wrong tense was grounds for demurrer or exception. Researchers reconstructing procedural history from manuscript court records should treat tense as intentional and categorically meaningful.
Second, in marriage and legitimacy disputes: the verba de praesenti rule governed the validity of clandestine and informal marriages well into the nineteenth century. Annulment cases, legitimacy challenges to inheritance, and bastardy proceedings in equity and ecclesiastical courts all turn on whether the operative language was present or future tense. Source documents in these cases must be read with this distinction in mind.
Third, in drafting history: modern transactional drafting has largely abandoned formal tense rules in favor of plain language conventions, but older instruments — particularly pre-twentieth-century deeds, wills, and marriage settlements — reflect these rules. A researcher comparing instrument language across periods should not assume that tense variation signals different intent; it may simply signal different drafting conventions or different document types.
Anderson's entry in the source material is misplaced — the text provided concerns spiritualism and insanity, which bears no relation to tense and appears to be a mis-keyed source extract. It has been disregarded for this entry.
Historical Dictionary Support
Bouvier is the primary authority here and states the rules cleanly: present tense for court acts, perfect tense for party acts and continuances, present tense for marriage contracts. He cites 1 Modern Reports 81 for the pleading rules and 6 Binney 405 (a Pennsylvania Supreme Court case) for the marriage-tense rule, along with 1 Saunders 393, note 1. These citations ground the doctrine in real authority and indicate that tense rules were actively litigated rather than merely theoretical.
What historical dictionaries do not address is the downstream effect of tense rules on later interpretation. Neither Bouvier nor Anderson (whose entry is inapplicable) discusses how courts treated instruments where tense was ambiguous or mixed. That gap means researchers working with disputed instruments must look to treatises on pleading — Chitty and Stephen are the standard starting points — rather than relying on dictionary coverage alone.
Jurisdictional Note
The present-tense marriage rule was a doctrine of ecclesiastical and common law origin and was received broadly across American jurisdictions, but its force varied significantly. Some states — particularly those recognizing common-law marriage — softened the tense requirement or allowed consummation to cure a future-tense agreement. Researchers should not assume uniform application; colonial or early state case law is the controlling source for each jurisdiction.