My 2500-word Wordlist

When I began writing about the hundreds of words that were in the 2005 Bee I corresponded with Scott Firebaugh, a co-competitor in the National Senior Bee, who mentioned to me that there was a 23,000-word wordlist online from which about 85% of the words at the annual Kids' Bee are taken (he knows this because his daughter Stacia competed in 2005 and acquitted herself very well--reaching the seventh round before missing a word). I decided that even though that list is based on the Webster's Third New International Dictionary (Unabridged) and my contest in June is derived from the much smaller Merriam-Webster's Collegiate (11th ed.), I could do no better than to work through the 23,000-word list, pare it down and then present to you a smaller list of about 2,500 of these words that I either didn't know or that I wanted to learn more about.

I have divided the list into three categories, according to the Kids' Bee categories (frequent, moderate, infrequent), and my list of about 630 "frequent" words appears in the next two essays. I will intersperse various essays on specific words among the lists. Indeed, the real fun of learning words for me is not the spelling of them (I am a very good but not supremely good speller) but rather entering into the world which words open. In the rest of this essay, then, I will entice you just a bit by introducing you to a word on my "frequent" list, withernam, as well as a few other words--if space permits.

Withernam

I was delighted, if not a little chagrined (since I didn't know the term), to discover that withernam is a legal term and is derived from the common law doctrine of replevin of goods (i.e., getting back goods that have been unlawfully taken--distrained--by another). I was likewise chagrined when I discovered that withernam doesn't appear in the Collegiate. That dictionary has very few interesting and useful words, though it really loads up on the modern pharmacological vocabulary. Well, the OED defines withernam as follows: "In an action of replevin, the reprisal of other goods in lieu of those taken by a first distress and eloigned; also the writ (called capias in withernam) commanding the sheriff to take the reprisal."

Well, in order to understand this definition, you need to understand a little of how replevin worked at common law. The best source in describing the common law doctrines, even if he isn't always clear in his explanations, is William Blackstone's four-volume Commentaries on the Laws of England (1765-69). In III.9 he deals with the action of replevin. He defines it as a the regular way of contesting the validity of a distress taken wrongfully. In the oldest days (before the 13th century), the party distrained (i.e., the party whose goods were taken), had no other process than by a writ of replevin, replegiari facias. Since this, as well as many other writs, issued out of chancery, the process to get back your goods taken--normally your cattle or sheep--was cumbersome and slow. Indeed, your goods might suffer harm in the time it took to get them back. So, the Statute of Marlbridge from the latter days of Henry III was passed allowing the local sheriff, without the party distrained upon suing a writ out of the chancery, immediately upon complaint having been made to him to replevy the goods. But then the party distrained must put in pledges to prosecute, plegios de prosequendo as well as plegios de retorno habendo, if his case is determined against him. Well, this is getting technical, but the point is that in a simple case of replevin, the goods taken are still there. It is the sheriff's duty to determine if the goods were rightly or wrongly distrained.

But what if the distrained goods have been taken out of the county or cannot be found when a complaint is filed? Here we follow Blackstone's words:

"But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown: and therepon the party replevying shall have a writ of capias in withernam, or in vetito namio; a term which signifies a second or reciprocal distress, in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods, of the distrainor, in lieu of the distress formerly taken, and eloigned, or withheld from the owner. So that here is now distress against distress; one being taken to answer the other, by way of reprisal, and as a punishment for the illegal behavior of the original distrainor. For which reason goods taken in withernam cannot be replevied, until the original distress is forthcoming" (III.9).

Well, we haven't yet gotten to the bottom of this withernam process. What type of goods may be distrained from the original distrainor in the withernam process? May anything be taken? Only comparable goods? Only the money's worth of the goods originally taken? Blackstone really doesn't go into this.

Leff's Dictionary

So, I searched and found the following: In the late-Professor Arthur Leff's magnificent dictionary of law (published in more than 300 pages in a number of the 1985 Yale Law Journal) he has the following entries. He first introduces us to averia--cattle. This includes oxen, sheep and hogs. So important for the functioning of the family economy were the averia (singular is averium) that the word evolved to mean "property." But there was also the averia carucae, the so-called "beasts of the plow." These, Leff says, were exempt from distraint (i.e., seizure for debt) unless one could not find enough other property to seize. The common law was committed to the notion that you don't take the productive assets from the debtor before seeing if one can be made whole out of his "frills"--such as silverware, etc.

Leff says that since it was mostly cattle that were distrained, the writ of capias ad withernam permitted the distrainee to sue for the obtaining of property similar to that which was distrained. But it seems that we are beginning to have a problem here with the explanation. Is it only the averia carucae that cannot be distrained (unless all other assets are exhausted)? Or can you generally get "comparable goods" to what has been taken until the case is adjudicated? Or, do you have to take "incidentals" so that you don't hurt the other guy's business? It is right here that we are beginning to run into difficulty. What can be distrained by the distrainee? Then Blackstone tells a story in his footnote "w" about a "famous question, with which Sir Thomas More when a student on his travels is said to have puzzled a "pragmatical professor" in the University of Bourges in Flanders. The professor gave a universal challenge to debate anyone on any question. Apparently More stumped the professor with the following simple question: "utrum averia carucae, capta in vetito namio, sint irreplegibilia," i.e., whether beasts of the plough, taken in withernam, are incapable of being replevied." Blackstone would argue that if the original distress was forthcoming, then the averia carucae would likewise be returned, but the good professor seemingly didn't have the presence of mind to answer More's question.

Conclusion

Well I see I have, as is my wont, gone rather far afield in trying to unpack a word, and I still am not confident that I know how withernam really worked! But at least we have been taken into another world for a while, a world which in fact forms the basis of our modern understanding of goods given in pledge or goods to be replevied. But I would have loved to introduce you to some German terms that make it into my list, such as zeitgeber or zugzwang, or the fantastic term, ylem, derived from a partial Greek word, used in helping to explain the big-bang theory. Those and other words must await future essays. I can hardly wait.

In the meantime, here is my "list of 630."

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