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The Cambridge History of English and American Literature in 18 Volumes (1907–21).>br>Volume I. From the Beginnings to the Cycles of Romance.

XX. The Anglo-French Law Language

Retention of French in the Courts and the Making of Legal Terms

THE PROFOUND effects of the Norman conquest on the vocabulary of the English language have already been considered. It remains to notice a special cause which had its own peculiar influence on the language, namely, the long retention of French in the courts of law. The words thus naturalised have become a part of the current speech of Englishmen, and have passed into the language in which English books have been written. This long familiarity with the structure and vocabulary of another tongue had its effect on literary style, just as the long familiarity with Latin had in the case of the monastic writers.

The effect on the vocabulary is certain and considerable, though it is impossible to draw any definite line and decide which words are due to the use of the French language in the courts, and which to its more general use outside the courts. Again, it would require special investigation in the case of individual words to determine when they ceased to be known only to lawyers and became familiar (frequently with a changed significance) to laymen.

It is to the Year Books that we must turn to see what the language of the courts actually was in the Middle Ages. These books form a series (not unbroken) of summaries of cases decided from the reign of Edward I to that of Henry VIII, while there is a note book of even earlier cases, of the reign of Henry III. Maitland has shown good reason for concluding that this note book was used by Bracton in writing his great treatise.

Some portions of these Year Books have been edited in recent years but, for the present purpose, the most important edition is that of the Year Books of Edward II edited by Maitland for the Selden Society. To volume I of this series Maitland prefixed a most valuable Introduction, from which the following pages are extracts, reprinted by permission of the council of the Selden Society:

We know “law French” in its last days, in the age that lies between the Restoration and the Revolution, as a debased jargon. Lawyers still wrote it; lawyers still pronounced or pretended to pronounce it. Not only was it the language in which the moots were holden at the Inns of Court until those ancient exercises ceased, but it might sometimes be heard in the courts of law, more especially if some belated real action made its way thither. The pleadings, which had been put into Latin for the record, were also put into French in order that they might be “mumbled” by a serjeant to the judges, who, however, were not bound to listen to his mumblings, since they could see what was written in “the paper books.” What is more, there still were men living who thought about law in this queer slang—for a slang it had become. Roger North has told us that such was the case of his brother Francis. If the Lord Keeper was writing hurriedly or only for himself, he wrote in French. “Really,” said Roger, “the Law is scarcely expressible properly in English.” A legal proposition couched in the vulgar language looked to his eyes “very uncouth.” So young gentlemen were adjured to despise translations and read Littleton’s Tenures in the original.

Roger North was no pedant; but he was a Tory, and not only was the admission of English to the sacred plea rolls one of those exploits of the sour faction that had been undone by a joyous monarchy, but there was a not unreasonable belief current in royalist circles that the old French law books enshrined many a goodly prerogative, and that the specious learning of the parliamentarians might be encountered by deeper and honester research. Nevertheless, that is a remarkable sentence coming from one who lived on until 1734: “Really the Law is scarcely expressible properly in English.”

Had it been written some centuries earlier it would have been very true, and its truth would have evaporated very slowly. The Act of 1362, which tried to substitute la lange du paiis for la lange francais, qest trope desconue as the oral language of the courts, is an important historical landmark. But we know that it was tardily obeyed, and indeed it attempted the impossible. How tardy the obedience was we cannot precisely tell, for the history of this matter is involved with the insufficiently explored history of written pleadings. Apparently French remained the language of “pleadings” properly so called, while English became the language of that “argument” which was slowly differentiated from out of the mixed process of arguing and pleading which is represented to us by the Year Books. Fortescue’s words about this matter are well known. In 1549 Archbishop Cranmer, contending with the rebels of Devonshire over the propriety of using English speech in the services of the Church, said, “I have heard suitors murmur at the bar because their attornies pleaded their causes in the French tongue which they understood not.” In Henry VIII’s day, when the advocates of a reception of Roman law could denounce “thys barbarouse tong and Old French, whych now seruyth to no purpose else,” moderate reformers of the Inns of Court were urging as the true remedy that students should be taught to plead in good French: the sort of French, we may suppose, that John Palsgrave, natyf[char] de Londres et graduè de Paris, was teaching. No doubt they felt with Roger North that “really the Law is scarcely expressible properly in English.”

The law was not expressible properly in English until the lange du paiis had appropriated to itself scores of French words; we may go near to saying that it had to borrow a word corresponding to almost every legal concept that had as yet been fashioned. Time was when the Englishman who in his English talk used such a word as “ancestor” or “heir,” such a word as “descend,” “revert,” or “remain,” must have felt that he was levying an enforced loan. For a while the charge of speaking a barbarous jargon would fall rather upon those who were making countless English words by the simple method of stealing than upon those whose French, though it might be of a colonial type, had taken next to nothing from the vulgar tongue. Very gradually the relation between the two languages was reversed. An Act of Parliament could do little to hasten the process; more might be done by patriotic schoolmasters.

When the history of English law is contrasted with the history of its next of kin, the existence of law French is too often forgotten. It is forgotten that during the later middle age English lawyers enjoyed the inestimable advantage of being able to make a technical language. And a highly technical language they made. To take one example, let us think for a moment of “an heir in tail rebutted from his formedon by a lineal warranty with descended assets.” Precise ideas are here expressed in precise terms, every one of which is French: the geometer or the chemist could hardly wish for terms that are more exact or less liable to have their edges worn away by the vulgar. Good came of this and evil. Let us dwell for a moment on an important consequence. We have known it put by a foreigner as a paradox that in the critical sixteenth century the national system of jurisprudence which showed the stoutest nationalism was a system that was hardly expressible in the national language. But is there a paradox here? English law was tough and impervious to foreign influence because it was highly technical, and it was highly technical because English lawyers had been able to make a vocabulary, to define their concepts, to think sharply as the man of science thinks. It would not be a popular doctrine that the Englishry of English law was secured by la lange francais qest trope desconue; but does it not seem likely that if English law had been more homely, more volksthümlich, Romanism would have swept the board in England as it swept the board in Germany?.…

Now, as regards vocabulary, there is a striking contrast between the earliest and the latest Year Books. A single case of Henry VIII’s day shows us “deer, hound, otters, foxes, fowl, tame, thrush, keeper, hunting.” We see that already the reporter was short of French words which would denote common objects of the country and gentlemanlysport. What is yet more remarkable, he admits “owner.” But in Edward II’s day the educated Englishman was far more likely to introduce French words into his English than English words into his French. The English lawyer’s French vocabulary was pure and sufficiently copious. It is fairly certain that by this time his “cradle speech” was English; but he had not been taught English, and he had been taught French, the language of good society. Even as a little boy he had been taught his moun et ma, toun et ta, soun et sa. Of our reporters we may be far more certain that they could rapidly write French of a sort than that they had ever written an English sentence. John of Cornwall and Richard Penkrich had yet to labour in the grammar schools.

Let us look for a moment at some of the words which “lay in the mouths” of our serjeants and judges: words descriptive of logical and argumentative processes: words that in course of time would be heard far outside the courts of law. We see “to allege, to aver, to assert, to affirm, to avow, to suppose, to surmise (surmettre), to certify, to maintain, to doubt, to deny, to except (excepcioner), to demur, to determine, to reply, to traverse, to join issue, to try, to examine, to prove.” We see “a debate, a reason, a premiss, a conclusion, a distinction, an affirmative, a negative, a maxim, a suggestion.” We see “repugnant, contrariant, discordant.” We see “impertinent” and “inconvenient” in their good old senses. We even see “sophistry.” Our French-speaking, French-thinking lawyers were the main agents in the distribution of all this verbal and intellectual wealth. While as yet there was little science and no popular science, the lawyer mediated between the abstract Latin logic of the schoolmen and the concrete needs and homely talk of gross, unschooled mankind. Law was the point where life and logic met.

And the lawyer was liberally exercising his right to make terms of art, and yet, if we mistake not, he did this in a manner sufficiently sanctioned by the genius of the language. Old French allowed a free conversion of infinitives into substantives. Some of the commonest nouns in the modern language have been infinitives: diner, dèjeuner, souper, pouvoir, devoir, plaisir; and in the list whence we take these examples we see un manoir and un plaidoyer. English legal language contains many words that were thus made—“a voucher, an ouster, a disclaimer, an inter-pleader, a demurrer, a cesser, an estover, a merger, a remitter, a render, a tender, an attainder, a joinder, a rejoinder”—though in some cases the process has been obscured… Were we still “to pray oyer of a bond,” we should use a debased infinitive, and perhaps it is well that nowadays we seldom hear of “a possibility of reverter” lest a pedant might say that revertir were better. Even the Latin roll felt this French influence: “his voucher” is vocare suum, and recuperare suum is “his recovery.”

But the most interesting speciment in our legal vocabulary of a French infinitive is “remainder.” In Edward II’s day name and thing were coming to the forefront of legal practice. The name was in the making. When he was distinguishing the three writs of formedon (or better of forme de doun) it was common for the lawyer to slip into Latin and to say en le descendere, en le reverti, en le remanere. But the French infinitives also were being used, and le remeindre (the “to remain”, the “to stay out” instead of the reversion or coming back) was soon to be a well-known substantive. It was not confused with a remenaunt, a remnant, a part which remains when part is gone. What remained, what stayed out instead of coming back, was the land. In French translations of such deeds as create remainders it is about as common to see the Latin remanere rendered by demorer as to see an employment of remeindre, and it is little more than an accident that we do not call a remainder a demurrer and a demurrer a remainder. In both cases there is a “to abide”; in the one the land abides for the remainder-man (celui a qi le remeindre se tailla); in the other case the pleaders express their intention of dwelling upon what they have said, of abiding by what they have pleaded, and they abide the judgment of the court. When a cause “stands over,” as we say, our ancestors would say in Latin that it remains, and in French that it demurs (loquela remanet: la parole demoert): “the parol demurs,” the case is “made a remanet.” The differentiation and specification of “remain” and “demur,” “remainder” and “demurrer,” is an instance of good technical work…

We might dwell at some length on the healthy processes which were determining the sense of words. There is, for example, tailler (to cut or carve), which can be used of the action of one who shapes or, as we say, “limits” a gift in some special manner, but more especially if the result of his cutting and carving is a “tailed fee.” There is assez (enough) with a strange destiny before it, since it is to engender a singular “asset.” We might endeavour to explain how, under the influence of the deponent verbs sequi and prosequi which appear upon the Latin roll, the phrase il fut nounsuivy (he was non-suited) is a nearer equivalent for il ne suivit pas than for il ne fut pas suivi. Of our lawyers as word-makers, phrase-makers, thought-makers, much might be said.