Law French

Kelham's Dictionary of the Norman or Old French Language (1779) provided English translations of Law French terms from parliamentary and legal records

Law French is an archaic language originally based on Old Norman and Anglo-Norman, but increasingly influenced by Parisian French and, later, English. It was used in the law courts of England, beginning with the Norman Conquest by William the Conqueror. Its use continued for several centuries in the courts of England.

History

The earliest known documents in which French is used specifically as a vehicle for discourse on English law date from the third quarter of the thirteenth century. They are

In these works we see an already sophisticated technical language well equipped with its own terminology. This includes many words which are of Latin origin but whose forms have been worn down and distorted in a way which suggests that they already possessed a long history of French usage; examples include avoeson 'right of nominating a parish priest' (Latin advocationem), neife 'female serf' (Latin nativa) and essoyne or essone 'circumstance giving exemption from a royal summons' (Latin sunnis, later replaced by essonia which is simply a reintroduction into Latin from the French form).

Until the early fourteenth century, Law French largely coincided with the French used as an everyday language by the upper classes. As such, it reflected some of the changes undergone by the northern dialects of mainland French during the period. Thus, in the documents mentioned above, 'of the king' is rendered as del rey, whereas by about 1330 it had become du roi (as in modern French) or du roy.[3] During that century, however, this vernacular French suffered a rapid decline; the Pleading in English Act 1362 ("Statute of Pleading") acknowledged this change by ordaining that thenceforward court proceedings be conducted in English, which eventually developed into Legal English. From that time, Law French lost most of its status as a spoken language. It remained in use for the 'readings' (lectures) and 'moots' (academic debates), held in the Inns of Court as part of the education of young lawyers, but essentially it quickly became a written language alone; it ceased to acquire new words, its grammar degenerated (by about 1500 gender was often neglected, giving rise to such absurdities as une home ('a (feminine) man') or un feme ('a (masculine) woman'), and its vocabulary became increasingly English, as it was used solely by English lawyers and judges who often spoke no real French.

In the seventeenth century, the moots and readings fell into neglect, and the rule of Oliver Cromwell, with its emphasis on removing the relics of archaic ritual from legal and governmental processes, struck a further blow at the language. Even before then, in 1628, Sir Edward Coke acknowledged in his preface to the First Part of the Institutes of the Law of England that Law French had almost ceased to be a spoken tongue. It was still used for case-reports and legal text-books until almost the end of the century, but only in an extraordinarily debased form. A frequently quoted example of this ultimate degeneracy comes from one of Chief Justice Sir George Treby's marginal notes in an annotated edition of Dyer's Reports, published 1688:

Richardson, ch. Just. de C. Banc al Assises at Salisbury in Summer 1631. fuit assault per prisoner la condemne pur felony que puis son condemnation ject un Brickbat a le dit Justice que narrowly mist, & pur ceo immediately fuit Indictment drawn per Noy envers le Prisoner, & son dexter manus ampute & fix al Gibbet, sur que luy mesme immediatement hange in presence de Court.
Sir George Treby

("Richardson, Chief Justice of Common Bench at the Assizes at Salisbury in Summer 1631. There was an assault by a prisoner there condemned for felony; who, following his condemnation, threw a brickbat at the said Justice, which narrowly missed. And for this, an indictment was immediately drawn by Noy against the prisoner, and his right hand was cut off and fastened to the gibbet, on which he himself was immediately hanged in the presence of the Court.")[4]

Survivals in modern legal terminology

The post-positive adjectives in many legal noun phrases in English—attorney general, fee simple — are a heritage from Law French. Native speakers of French may not understand certain Law French terms not used in modern French or replaced by other terms. For example, the current French word for "mortgage" is hypothèque. Many of the terms of Law French were converted into modern English in the 20th century to make the law more understandable in common-law jurisdictions. However, some key Law French terms remain, including the following:

Term or phrase Literal translation Definition and use
assizes sittings (Old French assise, sitting) Sitting of the court held in different places throughout a province or region.[5]
attorney appointed (Old French atorné) attorney-at-law (lawyer, equiv. to a solicitor and barrister) or attorney-in-fact (one who has power of attorney)
bailiff Anglo-Norman baillis, baillif "steward; administrator", from bail "custody, charge, office" 1. Court bailiff: marshal of the court; a court attendant; any person to whom authority, guardianship or jurisdiction is entrusted whose main duty is keeping order in the courtroom.[6]
2. Bound bailiff or bum-bailiff: person employed by the sheriff to serve writs, execute court orders, collect debts, and in some regions, make arrests. In some regions, the bailiff is bound to the sheriff with sureties for the proper execution of the office.[6]
cestui que trust, cestui que use shortened form of cestui a que use le feoffment fuit fait, "he for whose use the feoffment was made", and cestui a que use le trust est créé, "he for whom the trust is created" sometimes shortened to cestui; the beneficiary of a trust.
chattel property, goods (Old French chatel, ultimately from Latin capitale) personal property
chose thing (from Latin causa, "cause") thing, usually as in phrases: "chose in action" and "chose in possession".
culprit Originally cul. prit, abbreviation of Culpable: prest (d'averrer nostre bille), meaning "guilty, ready (to prove our case)", words used by prosecutor in opening a trial. guilty party
defendant "defending" (French défendant) the party against whom a civil proceeding is brought.
escheats Anglo-Norman eschete, escheoite "reversion of property" Pre-1660: reversion of unclaimed property to a feudal lord, or the state where the property is allodial.

Post-1660: After the Tenures Abolition Act 1660, which changed all tenures to free and common socage, the only revenue generating incidents that remained were escheat: whereby land returned to the Crown if a landholder died both intestate and heirless, and forfeiture, whereby land held by the grantee convicted of treason forfeited to the Crown[7]

Present-day: The reversion of land to the Crown when a person possessed of the fee dies intestate (i.e., no will) and without heirs. Land seldom reverts to the Crown, because it is freely alienable by way of sale, will or inheritance. As long as the land is disposed of in one of these three ways it does not revert to the Crown.[5]
estoppel Anglo-Norman estoup(p)ail "plug, stopper, bung" prevention of a party from contradicting a position previously taken.
force majeure modern French, "superior force" clause in some contracts that frees parties from liability for acts of God
in pais "in the countryside" out-of-court, extrajudicial: (1) settlement in pais - voluntary amicable settlement reached without legal proceedings; (2) matter in pais - matter to be proved solely by witness testimony unsupported by any judicial record or other documentary or tangible evidence; (3) estoppel in pais - estoppel in respect of out-of-court statements; (4) trial per pais - trial by jury
jury Anglo-Norman jurée "oath, legal inquiry" a group of citizens sworn for a common purpose
laches Anglo-Norman lachesse "slackness, laxness" Under English Common Law, the unnecessary delaying bringing an action against a party for failure to perform is known as the Doctrine of Laches. The doctrine describes that a court may refuse to hear a case not brought before it after a lengthy period since the right of action arose.[5]
larceny Anglo-Norman lar(e)cin "theft" theft of personal property
mortgage "dead pledge" (Old French mort gaige) now a variety of security interests, either made by conveyance or hypothecation, but originally a pledge by which the landowner remained in possession of the property he staked as security.
oyer et terminer "to hear and determine" US: court of general criminal jurisdiction in some states; UK: commission or writ empowering a judge to hear and rule on a criminal case at the assizes.
parole word, speech (ultimately from Latin parabola, parable) the release of prisoners based on giving their word of honour to abide by certain restrictions.
plaintiff complaining (from Old French plaintif) the person who begins a lawsuit.
pur autre vie vs. cestui que vie "during the term of another person's life" vs. "during the term of one's life" 1) used in life tenancy and lease arrangements
2) In the rights and obligations of the freehold, an heir or tenant has the rights to emblements from the life estate in certain cases (i.e., life estate terminated by a death)[5]

See also

References

  1. Printed in William Stubbs, Select Charters illustrative of English Constitutional History (9th ed., ed. H.C.F. Davis) (Oxford, 1913), pp. 378 et seqq.
  2. W.F. Dunham (ed.), The Casus Placitorum and Cases in the King's Courts 12721278 (Selden Society, vol. 69) (London, 1952)
  3. [Many examples in] D.W. Sutherland (ed.), The Eyre of Northamptonshire, 34 Edward III, A.D. 13291330 (Selden Society, vol. 978) (London, 1983) [note however that this text also shows instances of rei or rey]
  4. Source: http://books.google.com/books?id=TI860GexMyIC&pg=PA283 . The macaronic nature of this production can be more easily seen if it is reproduced in a modernized form, with the French elements in italics, Latin in bold, and the rest in English: "Richardson, C. J. de C. B. at Assizes at Salisbury in Summer 1631. Fut assault par prisoner condemné pour felony; que puis son condemnation jeta un brickbat au dit Justice, que narrowly missed, & pour ce immediately fut indictment drawn par Noy envers le prisoner, & son dexter manus amputée et fixée au gibbet, sur que lui-même immédiatement hangé in presence de Court." Admittedly, many of the English words (assault, prisoner, condemn, gibbet, presence, Court) could be interpreted as misspellings (or alternative spellings) of French words, while Justice is the same in French as in English; but even under the most favourable of constructions, the note is bad French, bad English, and bad Latin, all at the same time. What is perhaps most striking is that Treby could not remember the French even for such a familiar concept as being 'hanged' (pendu).
  5. 5.0 5.1 5.2 5.3 Willes, John A; Willes, John H (2012). Contemporary Canadian Business Law: Principles and Cases (9th ed.). McGraw-Hill Ryerson.
  6. 6.0 6.1 Yogis, John (1995). Canadian Law Dictionary (4th ed.). Barron's Education Series.
  7. Benson, Marjorie L; Bowden, Marie-Ann; Newman, Dwight (2008). Understanding Property: A Guide (2nd ed.). Thomson Carswell.
  8. See, generally, Archbold's Criminal Pleading 2012 (London, Sweet & Maxwell) at 4-357

Literature

External links