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Re: John Doe - not the Magna Carta

Posted by TheFallen on January 04, 2003

In Reply to: Re: John Doe ... from the archives posted by ESC on January 03, 2003

: : : : : Who was John Doe and why does this now mean an un-named American?

: : : : I found the following on a web site and closed it before I could save it to check for authenticity:

: : : : "John Doe had its beginnings in legal use. From the 15th century to the 19th, John Doe was, in
: : : : England, a legal fiction standing specifically for the plaintiff in a dispute over title to
: : : : real property. Richard Roe was the name given to the defendant. In order to
: : : : avoid dealing with the rigid restrictions legally imposed on such matters in English
: : : : common law, someone who wanted to regain possession of land from which he
: : : : had unjustly been evicted would bring a different kind of action--an "ejectment"
: : : : suit--in the name of John Doe, his fictional tenant.

: : : : By bringing the suit in the name of a fictitious person, who could not deny anything
: : : : that was said, the landowner was often able to oust the usurper and recover his
: : : : land legally. Supposedly, the fictional defendant was a traveler who, while passing
: : : : by, just happened to toss the mythical tenant off the property before going on his
: : : : way. The chances for victory by the rightful owner were enhanced when the
: : : : accused Richard Roe did not, for some reason, appear at the proceedings in
: : : : order to defend himself. And the actual person who wrongfully had possession of
: : : : the owner's land simply had no legal standing in the suit.

: : : : These particular suits were no longer necessary after the 1852 passage of the
: : : : Common Law Procedure Act, which eased the previous restrictions. But by then
: : : : the legal fictions John Doe and Richard Roe had become conventionalized, and
: : : : they are now used frequently in both English and American law. Current use is
: : : : quite a bit looser, however. John Doe, Jane Doe, Richard Roe, Jane Roe,
: : : : or--if need be--Peter Poe, are, according to Random House Webster's Pocket
: : : : Legal Dictionary, used in legal cases and documents, "either to conceal a
: : : : person's identity, or because the person's real name is not known, or because it is
: : : : not yet known whether the person exists."

: : : : We can say, then, that the John Doe of early legal use was always fictitious; the
: : : : John Doe of current legal use is sometimes a fiction but more often a real person;
: : : : and the John Doe of extended metaphorical use, 'an anonymous, average man', is
: : : : a generic--once again not real.

: : : : But back to origins. The choice of John is easy enough to understand. It was the
: : : : second most popular name in England even earlier than the 15th century (William
: : : : took first place). John is used even today as a generic reference (John Barleycorn,
: : : : John Q. Public, etc.) The need for a common, well-known fictional name in matters
: : : : of law is reflected in early Roman legal proceedings, in which the fictitious persons
: : : : included Gaius, Titius, and Seius.

: : : : Doe is harder to track down. It does not appear in lists of early inheritable
: : : : surnames in England. Nor does it seem to come from the usual "bynames" that
: : : : were in use in the Middle Ages--those names that you did not inherit from your
: : : : father but acquired yourself. Bynames were derived from either a parent's name
: : : : (Peterson), your location (Underhill), your occupation (Smith), or some nickname
: : : : (Wiseman). Feverish research has yielded nothing; no "Doe." So I'm stumped, too!
: : : : I can only speculate that Doe and Roe were convenient nonsense names, chosen
: : : : because they were short and easy to remember. And they rhymed. On the other
: : : : hand, there are a few putatively real Doe's and Roe's listed in modern phone
: : : : books. Of course, some of them are named "John" or "Richard" or "Jane."

: : : I'm mildly suspicious of the above, only because I've only ever come across the usage of John Doe in American English, and have neither heard nor read it used "natively" over here. If the term was standard legal teminology for 400 years plus in English law, it's a mite surprising that it should have entirely died out over here, but flourished kappily in the US - though I suppose it's possible.

: : : Over here in the UK, we're much more likely to refer to an anonymous individual as John Smith, or more colloquially, Joe Bloggs - don't ask me why.

: : I've searched through many English legal documents from all ages and have never come across this usage. I have, however, found the URL from which the above explanation has been pasted, viz. http://www.pseudoe.de/johndoe.htm. I think we have here a little Internet joke to fool the unwary.

: JOHN DOE -- "Since John was such a common English name, it came to be used as the name of the average, typical fellow by the 14th century. By then 'John Doe' and 'Richard Roe' were already used as substitute names on legal documents in England to protect the identities of the two witnesses needed for every legal action (such as the Magna Charta in 1215). Later these two names were used in standardized court proceedings in which 'John Doe' stood for the plaintiff protesting eviction by a hypothetical 'Richard Roe,' the landlord defendant. Thus 'John Doe' became the common man. 'John' and 'Richard' were common first names in England, but where did the hypothetical last names 'Doe' and 'Roe' come from? Some say from 'doe' (venison) and 'roe' (fish), since these were the foods that typical Englishman liked best - but it could be that 'Doe' and 'Roe' were what landowners called men who poached deer and fish, and who would be just the kind of men willing to witness legal documents against the landowners and their landed rights." From "Listening to America" by Stuart Berg Flexner (Simon and Schuster, New York, 1982).

I'm still not buying the Magna Carta reference, and I hate sloppy research - je t'accuse, Mr. Flexner. Take a look at the text of the Magna Carta itself. There are no references to "John Doe" in it, and given that all the barons present are named specifically within the document, having an anonymous witness seems a little silly. The barons and clergy present at the signing themselves signed the Magna Carta as sureties in their own names. I suspect the Magna Carta reference is an entire red herring, no matter if the term "John Doe" itself stems from archaic legal history.