Adjudication 77b/

The designation Adjudication 77b refers to a supplementary ruling issued by the Adjudication Chamber on 14 Felbrig 604, appended without separate seal to the main register of that quarter and consequently misfiled for one hundred and twelve years. It is not an adjudication in the ordinary sense — no parties are named, no dispute is disposed of — but rather a corrective gloss on the conduct of Provisional Adjudication, held by most commentators to possess the force of a standing instruction and by a persistent minority to possess no force at all. The slip bearing it was recovered in 716 from a binding-error in the third volume of the Chamber's annual returns, between entries for two unrelated matters concerning stair-wells. Its discovery is credited to the sub-clerk Orra Vantle, whose marginal note — "found where it should not have been, which is where it was" — survives in the accession record.

The ruling occupies a single folded leaf, recto and verso, and is numbered 77b to distinguish it from the principal Adjudication 77, a lengthy matter concerning mill-toll apportionment on Floor 41-C that has never been considered related to it by any authority.

Text and immediate object

The leaf opens with the customary formula of the Chamber and proceeds, in its second clause, to the point for which it is cited throughout the Tower: that where a proceeding under the Manual of Provisional Adjudication has been opened and then suspended for want of a party, the suspension shall not be recorded as a disposition. The clause reads:

"A suspension is a keeping-open and not a closing. Let no clerk enter it in the column of outcomes, nor reason from it as though something had been decided, for nothing has been decided and nothing may be said to have been decided by the mere absence of the person who would have said it."

— Adjudication Chamber, Adjudication 77b, cl. 2

The remainder of the leaf is occupied with three subordinate instructions, of which the third — that the leaf be copied into every manual held by a chamber of first instance — appears never to have been carried out anywhere, on the ground that the leaf was at the time unfindable.

Relation to the doctrine of Disposition

The difficulty of Adjudication 77b lies in its collision with Disposition, the doctrine within Provisional Adjudication that treats prolonged silence in a proceeding as itself determinative. Under the doctrine as commonly taught, a matter left untouched for a full cycle of the register is taken to have settled in favour of the party who last filed. Adjudication 77b forbids precisely this inference, and does so without mentioning Disposition by name — a reticence that has permitted both readings to flourish.

The Bilateral Adjudication Panel took the matter up in 803 and held, in a ruling subsequently reversed, that 77b was "a note upon the usage of one chamber and not a maxim of the Tower" (Bilateral Adjudication Panel, Return of Spring Session 803, item 14). The reversal came from the Panel of Adjudication, which observed only that a body subject to binding review should be cautious in describing any ruling of the Adjudication Chambers as a note. The Panel did not, however, say what 77b was, and the question remains open.

Scholarly disagreement

Two positions predominate. The first, associated with the commentator Hesper Mundy and set out at length in her Recensions of the Supplementary Leaves (711), holds that 77b binds only those chambers that have received a certified copy, and that since no certified copy is known to have been made, the ruling is instruction without effect — "a lamp lit in a room no one enters" (Mundy, Recensions, vol. ii, p. 344). The second, advanced by the archivist Tobias Rele in a series of marginal objections to Mundy, holds that the absence of copies is itself the proof of the ruling's authority, since a ruling nobody could read could not have been disobeyed, and its disobedience is recorded everywhere.

Rele's position has never been formally answered. It is noted in the Concordance of Register Irregularities, Annex 9, that the annexe was amended in 819 to add the words "including leaves recovered from bindings," a change widely understood to have been made for 77b's sake and never acknowledged as such.

Practical consequences

Chambers of first instance now enter suspensions in a separate column headed "kept open," a practice traced to the circular of Emery Solon of 748, which did not cite 77b — Solon could not have cited it, the leaf being then still in the binding — but arrived at the same arrangement by independent reasoning. This coincidence is the strongest argument available to those who hold that 77b states a principle already implicit in the Tower's practice and required no promulgation to be true.

The leaf itself is held in the supplementary series on Floor 219, in a case with the other recovered fragments. It may be consulted on written application. The case is not to be opened on the anniversary of its recovery, a restriction imposed after the events of 716 and renewed without explanation at each subsequent review.

No proceeding has ever been brought to test whether Adjudication 77b would survive a direct challenge before the Panel of Adjudication. The Manual of Provisional Adjudication, in its current recension, cites it twice, both times in footnotes, and both times for a proposition it does not quite make.