Definitions

prochein ami

Law French

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 of the language

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

  • The Provisions of Oxford (1258), consisting of the terms of oaths sworn by the 24 magnates appointed to rectify abuses in the administration of King Henry III, together with summaries of their rulings.
  • The Casus Placitorum (c. 1250-70), a collection of legal maxims, rules and brief narratives of cases.

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. During that century, however, this vernacular French suffered a rapid decline; an Act of Parliament of 1363 (36 Edw. III cap. 15) acknowledged this change by ordaining that thenceforward court proceedings should be conducted in 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 (female) man') or un feme ('a (male) 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, we find Sir Edward Coke acknowledging 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, C. J. de C. B. at Assizes 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. Et pur ceo immediately fuit Indictment drawn pur Noy envers le Prisoner, et son dexter manus ampute et fixe al Gibbet, sur que luy mesme immediatement hange in presence de Court.

("Richardson, C(hief) J(ustice) of C(ommon) B(ench). At 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 for injury was immediately drawn 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.")

Survivals in modern legal terminology

The inverted syntax of many legal noun phrases in English — attorney general, fee simple — is a heritage from Law French. Many of the terms of Law French have been converted into modern English in the 20th century to make the law more understandable in common law jurisdictions. However, some key terms remain from Law French, including the following:

  • attorney, one appointed to act for another — now characterized as either:
  • autrefois acquit, previously acquitted of a crime.
  • bailiff, the marshal of the court, charged now chiefly with keeping order in the courtroom.
  • cestui que trust, sometimes shortened to cestui; the beneficiary of a trust.
  • culprit, now used to mean 'guilty party'. Originally a blending of Latin culpabilis ('guilty') and Law French prist ('ready'), a shortening of a conventional phrase prist del averer ('[I am] ready to prove [that the accused is guilty as stated').
  • 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, the party against whom a civil proceeding is brought.
  • escheat, reversion of unclaimed property to a feudal lord, or the state where the property is allodial.
  • estoppel, prevention of a party from contradicting a position previously taken.
  • feme covert and feme sole.
  • laches, loss of rights through failure to act.
  • mortgage, literally a "dead pledge"; a pledge by which the landowner remained in possession of the property he staked as security.
  • mortmain, a statute restricting the conveyance of land to the "dead hand" of a religious organization
  • oyez, often calqued as hear ye!, a traditional cry used to open court proceedings, still used in the Supreme Court of the United States.
  • plaintiff, the person who begins a lawsuit.
  • prochein ami, now usually called next friend; someone who files a lawsuit on behalf of another who is not capable of acting on his or her own behalf.
  • 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.
  • 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.
  • torts, meaning wrongs.
  • trove, as in treasure trove, is a verb, not a noun, and means found. Thus treasure trove means not a treasure chest or hoard, but a treasure found by chance, as opposed to one stolen, inherited, bought, etc. Trove should properly be a word of two syllables (Old French trové, modern French trouvé), but this is never observed today.
  • voir dire, literally truth to say; the questions a prospective juror or witness must answer to determine his or her qualification to serve, in the law of England a mini-trial held after a plea of guilty has been entered to determine the facts of the offence where they are in dispute. In a modern context thought of often as a mini-trial within a full trial to determine the admissibility of contested evidence. In a jury trial a voir dire is held before the judge but without a jury present. Voir dires may also be held in a trial by judge alone, but done, of course, in the presence of the judge.

See also

Notes

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