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Origin of legal English

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Karencilla N

on 7 February 2013

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Transcript of Origin of legal English

Legal documents were generally written by an observer rather than the participants.
Later, the author of the text was now the testator, judge or legislator.
Once a law is fixed in written form, specialized if published, it has a permanence that it would not have if it were oral. Written legal language originally had the function of merely recording an oral event.
Parol evidence rule: prohibited introduction of evidence of oral discussion regarding the content of a document.
Reports on court proceedings emphasized on what the judge said and less in the arguments of lawyers.
What the judge writes in the opinions of lawyers is more important than opinions. Vocabulary of technical words in legal system:
Agreement, arrest, arson, assault, crime, damage, easement, felony, heir, etc.
Real property terminology
Estate, fee simple, fee tail, lease, license, remainder, rent, tenant, tenure, trespass.
Words referring to court:
Action, appeal, attorney, claim, complaint, counsel, court, defendant, verdict. French adjectives follow the noun they modify. Several are still common in legal English:
Accounts payable/receivable
Attorney general
Condition precedent
Court martial
Notary public
Solicitor general Latin was also employed for legal canons or maxims.
Ubi jus, ibi remedium (“where there is a right, there is a remedy”)
Expression unius (est) exclusio alterius (“the expression of one thing implies the exclusion of the other”) Growing jurisdiction of royal courts promoted expansion of French as a legal language.
It made some sense for them to develop their own language.
French was passed from generation to generation of lawyers to the next. Those who worked in royal courts, and advocates and judges were native speakers of French.
Those who made the law had access to it in a language they understood.
“it was not primarily the Norman Conquest but the advance of French as an international literary and cultural language, particularly in the thirteenth century, which caused it’s increasing use as the written language for English records.”
M.T Clanchy Over the course of the fourteenth century, French decline among the nobility as well.
Speakers: one in a hundred.
King Henry V:
Cut ties with Normandy.
Official documents in English.
1400 French was close to a dead language, but it was the century where French was widely used as language of the law. Use of French in the English legal system came when the language was extinguishing.
During the thirteenth century most of the gentry were not native French speakers.
Outside the legal sphere, Anglo French was in decline after 1300 Difficult to determine when French became used in courts. But may not have happened after the Conquest.
Edward I (1272-1307)
Proceedings in Curia Regis where in French.
Local courts might have conducted their business in English.
Difficult to determine how much French was being spoken.
Speech in one language could be written down in another. De legibus et Consuetudinibus Angliae:
Written in 1187 entirely in Latin.
Bracton’s treatise:
Early 1200s.
Written in Latin but with some terms in English.
Educated readers were more familiar with English more than French. Main impact:
Replace English with Latin on written legal language.
1275: first statute in French-
1275-1310: statutes in either French or Latin.
1310: normal language for statutes, French. Transition from English to French, specially in legal language, evolved gradually.
Inferior status of English during this time became legend.
Those who wanted to see meat on the table, spoke French.
Mutton, veal, beef, pork. French.
Lamb, calf, cow, pig. Anglo-Saxon. Exact verbal formulas in legal proceedings.
“In the name of the living God, as I money demand, so have I lack of that which N. promised to me, when I mine to him sold.”
Beginning of a suit against
someone who owed money.
“In the name of the living God, I owe not to N. sceatt or shilling, or penny or penny’s worth; but I have discharged to him all that I owed him, so far as our verbal contracts were at first.”
Oath to deny the charge. Moot :
Open-air meeting to discuss local affairs.
Meetings to argue hypothetical cases.
Originally meant that it was unresolved.
“judgment” Witness:
Witan = to know.
Witness meant “knowledge” or “evidence”
Anglo-Saxons used sealed letters to confirm a grant or other transaction.
Gewrit or writ -> Write.
Expressed desire in Old English
Wills: statements of what one desired to happen when one died. The structure of the Anglo-Saxons was being replaced by several kingdoms.
Desirability of written laws.
Year 600, King Aethelbert produced written laws in Old English.
Had no distinct legal profession.
Developed type of legal language
Bequeath, goods, guilt, land, manslaughter, murder, right, sheriff, steal, swear, theft, thief, ward. Expressed much of their law in legal sayings or maxims in semi-poetic or rhetorical language.
Never switched to Latin despite Roman occupation.
Roman law had little impact. There is no way to explain how legal language came to be what it is.
Series of historical events.
Profession’s resistance to change.
Conservatism kept French alive for a long time. Conclusion Originally language was exclusively oral.
Impact of writing came with the invention of printing.
Anglo-Saxon: legal language was almost entirely oral; writing was a record of evidence.
Eventually, the clergy made written records of property transfers as aids to remember.
Ultimately writing and signing of the document became legally operative. Importance of writing and printing Parliaments finally took action during the Commonwealth when Puritans assumed power.
In 1650, they passed a law that required all case reports and books to be in English.
By 1704 all reports of courts were in English The Resurgence of English Legal profession was trilingual using English, French and Latin in different situations.
Many written pleadings and legal records were in Latin.
Speech directed to non-lawyers was in English.
Interchanging with other judges in French. Trillingialism and Code-switching Profession's desire to monopolize provision of legal services.
“What better way of preserving a professional monopoly than by locking up your trade secret in the safe of an unknown tongue.”
Keeping spiritual as well as temporal laws in a foreign language preserved the status of priests and lawyers as interpreters and intermediaries. Maintainance of Law French Distinct language that had to be learned by aspiring lawyers.
Incomprehensible for English speakers and ordinary French speakers.
Statute of Pleading, 1362:
“all pleas should be pleaded, shewed, defended, answered, debated, judged in the English Tongue Law French Names of cases and parties:
Versus, in personam, in rem, in propria persona, in re, etc.
Either Latin or Anglicized derived from Latin:
Colloquium, defamation, innuendo, libel, mitior sensus, demosntrative, testament, testify. Latin words Remained important language in England, specially in written form.
English had many dialects. Latin was standardized.
Latin could operate as a lingua franca.
Latin used in legal profession was adapted to the needs of English law. Law Latin.
Latin borrowed words from French with Latinized words: barganizando “bargaining”, attornatus “attorney” Continuing use of Latin The English speaking ruling class was replaced by one that spoke Norman French.
Authority, chancellor, council, country, crown, exchequer, minister, nation, people, power, state, govern, government, realm, reign, sovereign. Norman Conquest and Rise of French. Scandinavian law governed parts of eastern England in the ninth and tenth centuries.
They, their, skin, sky, take, gift, loan, sale trust.
Norse “lay”: that which is lay down. Scandinavians Year 601, the church had established itself Canterbury.
Canon law
Regulation of religious matters such as marriage and the family.
Learning and literature.
Laws and other legal documents were written in Latin.
Client, conviction, admit, mediate, legitimate, clerk Christianity and Latin Survived in conjoined phrases.
Two parallel elements connected by conjunction and/or.
Important stylistic feature of legal documents
“I with my eyes saw and with my ears heard.”
“Tell the truth, the whole truth, and nothing but the truth.” Parallelism Anglo-Saxon main characteristic.
Words should begin with the same word.
Common in the laws of Germanic tribes.
Easy to remember.
Aid and abet
Any and all
Bed and breakfast
Clear and convincing
Fame and fortune
Rhyme and reason
Safe and sound Alliteration Begins in ancient Britain
Develops as Anglo-Saxons, Scandinavians, Norman, French left their marks particularly in legal English.
Later, English propagated their legal system and language across the world.
Knowing the historical basis of lawyers’ speech and writing characteristics may help us determine their usefulness. Origins Karen Nasevilla Legal English Origins Germanic warriors decided to stay after the battle against Britons.
Territory known as Angle-land –> England.
Spoke Anglo Saxon or Old English . Anglo-Saxons Inhabited Britain and Ireland.
Language, branch of Indo-European. Related to English.
Celtic remnants in England:
London Celts Sources Tiersma, Peter Meijes. Legal Language. Chicago: University of Chicago, 1999. Print.
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