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 and Ireland.

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, Welsh and Irish 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 anglicized form. A frequently quoted example of this change 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)
autrefois acquit or autrefois convict peremptory pleas that one was previously acquitted or convicted of the same offence.
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
cy-près doctrine the power of a court to transfer the property of one charitable trust to another charitable trust when the first trust' may no longer exist or be able to operate.
defendant "defending" (French défendant) the party against whom a civil proceeding is brought.
en ventre sa mère fetus in the womb and therefore for beneficial purposes legally born
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.
estovers wood that tenants may be entitled to from the land in which they have their interest
feme covert and feme sole the legal status of adult married women and unmarried women, respectively, under the coverture principle of common law.
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
mainprise, mainprize undertaking for the appearance of an accused at trial, given to a magistrate or court even without having the accused in custody; mainpernor is the promisor.
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.
Statutes of Mortmain statute restricting the conveyance of land to the "dead hand" of a religious organization
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.
parol evidence rule a substantive rule of contract law which precludes extrinsic evidence from altering the terms of an unambiguous fully expressed contract; from the Old French for "voice" or "spoken word," i.e., oral, evidence.
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.
prochein ami Law French for what is now more usually called next friend (or, in England and Wales, following the Woolf Reforms, a litigation friend). Refers to one who files a lawsuit on behalf of another not capable of acting on his or her own behalf, such as a minor.
profit a prendre also known as the right of common, where one has the right to take the "fruits" of the property of another, such as mining rights, growing rights, etc.
prout de jure Scots law term; proof at large; all evidence is allowed in court.
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]
recovery originally a procedural device for clarifying the ownership of land, involving a stylised lawsuit between fictional litigants.
remainder originally a substitution-term in a will or conveyance, to be brought into play if the primary beneficiary were to die or fail to fulfil certain conditions.
replevin a suit to recover personal property unlawfully taken.
terre-tenant person who has the actual possession of land; used specifically for (1) someone owing a rentcharge, (2) owner in fee of land acquired from a judgment debtor after judgment creditor's lien has attached.
torts meaning civil wrongs.
trove as in treasure trove, was originally an adjective, not a noun, and meant found. Thus treasure trove means, in origin, not a treasure chest or hoard, but a treasure found by chance, as opposed to one stolen, inherited, bought, etc.
voir dire literally "to say the truth"; the word voir (or voire) in this combination comes from Old French and derives from Latin verum, "that which is true" and is not related to the modern French word voir, which derives from Latin vidēre ("to see"). Voir dire refers in the United States to the questions a prospective juror or witness must answer to determine his qualification to serve; or, in the law of both the United States and of England a "trial-within-a-trial" held to determine the admissibility of evidence (for example, an accused's alleged confession), [8] i.e. whether the jury (or judge where there is no jury) may receive it.

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 1272–1278 (Selden Society, vol. 69) (London, 1952)
  3. ↑ [Many examples in] D.W. Sutherland (ed.), The Eyre of Northamptonshire, 3–4 Edward III, A.D. 1329–1330 (Selden Society, vol. 97–8) (London, 1983) [note however that this text also shows instances of rei or rey]
  4. ↑ Source: https://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 là 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. 1 2 3 4 Willes, John A; Willes, John H (2012). Contemporary Canadian Business Law: Principles and Cases (9th ed.). McGraw-Hill Ryerson.
  6. 1 2 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

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