Definition
Latin. "The living voice." Oral utterance or spoken testimony, as distinguished from written words or documents. In legal usage, the phrase refers to evidence or proof delivered by spoken word rather than by writing. The related adverbial phrase *vivâ voce* — meaning "by the living voice" or "by word of mouth" — appears more frequently in legal texts and carries the same essential meaning in practical application.
In old English law, *viva vox* also denoted a living witness: a person present and able to speak, as opposed to a document offered in evidence to prove the same fact. The distinction was procedurally significant in medieval pleading, where a party might be required to produce either a written instrument or a living person prepared to establish and defend the claim.
Common Language
Modern common usage (Wiktionary): *Vivâ voce* (the more common form) means "by word of mouth; orally," and appears in general English in contexts such as oral examinations at universities.
Historical common usage (Webster's 1913): Defines *viva voce* as "by word of mouth; orally," noting its use to describe votes given by spoken word rather than by ballot.
The common usage and the legal usage are closely aligned in their core sense, but legal sources add a layer the common definitions omit: the contrast with documentary proof in evidentiary procedure. In legal contexts, the distinction between *viva vox* and written evidence is not merely a matter of medium — it implicates the rules of proof, witness competency, and the relative weight accorded to oral versus written testimony across different historical periods.
Why It Matters in Research
Researchers encounter *viva vox* and *vivâ voce* most often in three distinct contexts, and conflating them produces confusion.
First, in medieval and early common law sources, *viva vox* appears in procedural formulae governing how a party proves a claim — whether by producing a document, a witness, or suit (followers who would corroborate). The Burrill excerpt illustrates this: a party must produce *sectam sufficientem* (sufficient suit), *vivam vocem* (a living voice/witness), or someone prepared to formally contest the matter. Understanding this tripartite structure is essential when reading Year Books or early plea rolls.
Second, *vivâ voce* persists into modern legal usage in a narrower sense: oral voting (as opposed to ballot voting in deliberative bodies) and oral examination of witnesses or candidates. This usage is largely divorced from the evidentiary weight the phrase carried in medieval procedure.
Third, in Scottish and some civil law sources, *vivâ voce* evidence is a recognized term of art for oral testimony at trial, and appears in procedural rules distinguishing it from documentary or real evidence. Researchers working in Scottish legal history or comparative common law will encounter this usage and should not assume it carries the same force as in English common law sources.
The Latinized feminine accusative form (*vivam vocem*) appears in original sources and can cause confusion for researchers unfamiliar with Latin inflection — it is the same concept as *viva vox* (nominative), declined for its grammatical role in the sentence.
Historical Dictionary Support
Burrill's Law Dictionary is the primary shelf source providing a direct entry. Burrill captures both meanings cleanly: the general sense (oral utterance versus written words) and the specific old English law sense (a living witness as opposed to a writing). The partial quotation Burrill provides — drawn from early English procedural law — is instructive because it places *vivam vocem* in context alongside *secta* (suit) and formal contestation, showing that the living witness was one of several recognized modes of proof rather than the default or superior one.
What Burrill does not address is the subsequent narrowing of the phrase in post-medieval usage. By the time of Blackstone and the mature common law, *vivâ voce* had shed most of its association with the medieval proof-by-witness structure and settled into a simpler contrast: oral testimony versus written deposition. Later legal dictionaries largely follow this narrower usage without flagging the earlier, richer procedural meaning.
Researchers should be alert to this evolution: the same phrase in a thirteenth-century plea roll and in a nineteenth-century evidence treatise may be doing quite different conceptual work.
Jurisdictional Note
The phrase is Latin and appears across common law, civil law, and mixed jurisdictions. Its most technically specific usage — *vivâ voce* evidence as a formal evidentiary category — is most pronounced in Scottish law and survives in some Commonwealth jurisdictions. English and American legal usage generally treats *vivâ voce* as an informal or archaic equivalent of "oral," without attaching the procedural formalism found in older sources.