Posted by Sara M. Butler, 9 November 2018.

When John of Salisbury (ca. 1115-1180) decried the dishonesty of lawyers in his Policraticus, he targeted the incomprehensibility of their legalese, complaining that “they snare simple men in nets of impenetrable jargon … ‘Woe unto those who know not how to syllabificate.’”[1] The sentiment expressed by John of Salisbury is one with which most laymen today can empathize. As anyone reading a legal document or listening to a court case on television can attest, lawyers seem to speak their own language.

At no point in history was this more true than in medieval England. Despite the Englishness with which we associate common law, the English language was nowhere to be found in the courts of medieval England. Justices and sergeants at law spoke in law French, a bastardized version of Anglo-Norman French with a highly specialized legal vocabulary. Indeed, the unique qualities of the language have prompted numerous historians to see it as an invention by English lawyers.[2] Though, anyone fluent in French will tell you that it is in fact much like reading Middle English: there is no standardized spelling (even within the same sentence), words are often run together (i.e., cestassaver – that is to say), and the vocabulary is archaic.[3] For the medieval legal historian, it doesn’t help that the normal abbreviations used in Latin manuscripts have a different meaning in law French. For example, the closed loop which resembles the Arabic numeral 9 is expanded as –us in Latin manuscripts: amic9 = amicus (“friend”). However, in law French, it sometimes expands as -us (no9 = nous, or “we”), but it might also represent -es, -ms, or -s (t9 = temps, or “time”).

 

 

French was not only the language of England’s courtrooms, it was also the language in which statutes were written, as well as the Year Books, that is, textbooks intended to teach courtroom practice to lawyers-in-training. It is often argued that French assumed pride of place in England’s courts because it became the language of the elite in England after the Norman Conquest. In fact, as Ada Maria Kuskowski has written, the transition to French transpired as part of a thirteenth-century pan-European trend, which saw the abandonment of Latin in favor of a French vernacular legal culture that dominated the courts from England to the Levant.[4]

Naturally, French never displaced Latin entirely. In England, Latin was the language of most legal treatises, of writs, of plea rolls, of charters. Even the law French of England’s courtrooms was interspersed with Latin. Words and phrases adopted from Roman law and the writings of legal commentators were made sacred by their Latin formulation. This remained true even in the fourteenth century, by which point the English regarded Latin as a dead language, spoken entirely by foreigners and ecclesiasts, and even French had been edged out by the English language in aristocratic circles. Frustration with the impenetrability of the legal process led King Edward III in 1362 to legislate English as the language of pleading. As the justification for the statute alleges, “great Mischiefs” have befallen many English subjects because the law is commonly

 

pleaded, shewed, and judged in the French Tongue, which is much unknown in the said Realm; so that the People which do implead, or be impleaded, in the King’s Court, and in the Courts of other, have no Knowledge nor Understanding of that which is said for them or against them by their Serjeants and other Pleaders.

 

But if the law was in English, “every Man of the said Realm may the better govern himself without offending of the Law, and the better keep, save, and defend his Heritage and Possessions.”[5] Despite the stirring rhetoric, the statute did not in fact propose anything too radical. English was to become the language of the courtroom, but scribes would continue to enter and enroll the records in Latin.

Predictably, the statute had no discernible impact on the English courts. Common lawyers explained that the law was too complicated for translation. This stance garnered formidable support well into the eighteenth century. In 1731, when the House of Commons introduced a bill for the Englishing of law, many lawyers still insisted that law French and Latin were integral to making legal arguments and providing accuracy in legal judgments.[6] As one English lawyer infamously complained, “Really, the Law is scarcely expressible properly in English.”[7]

While it is hard to imagine any lawyer in the Anglo-American legal world today advocating for a return to law French, the resistance to translation remains in the persistent usage of French terminology (such as, attorney, estoppel, oyer et terminer), as well as the sprinkling of Latin phrases that crop up repeatedly in legal proceedings. Corpus delicti, pro bono, habeas corpus – phrases such as these ensure the continued popularity of works like E. Hilton Jackson’s Latin for Lawyers, last published in 2014. It also explains why Black’s Law Dictionary bears a striking resemblance to a Latin-English dictionary for lawyers. Clearly, judges and lawyers still have trouble expressing themselves in the English language.

The tenacity of England’s trilingual heritage in the court setting makes me wonder whether the lawyers who resisted Edward III were right: had “the institution [of law] simply found the language it needed”?[8]  (And that language was emphatically not English.)

Despite the seeming ridiculousness of this proposition, when it comes to legal maxims, it is hard not to side with the lawyers. A maxim is a Latin phrase, sometimes just a few words in length, sometimes an entire sentence, which briefly encapsulates a guiding principle in law. As Paul Hyams has described it, a maxim is “the lawyer’s own brand of proverb.”[9] Many of them originated in Roman law, dispersed by study in medieval universities of Justinian’s Digest, which included a selection of regulae (rules). Many others were clearly examples of lawyerly wisdom, fashioned over the ages and dignified by translation into the Latin tongue. Familiar examples include:

• Caveat emptor: Buyer beware.
• Carcer ad homines custodiendos, non ad puniendos, dari debet: A prison should be assigned to the custody, not the punishment of men.
• Necessitas non habet legem: Necessity has no law.

From the Middle Ages until the nineteenth century, legal maxims were considered “the central pillars of the law,” forming the basis of a legal education.[10] While that is not true in today’s law schools (thank goodness!), Latin maxims still make their way into court decisions, for two reasons:

One, Latin is an efficient language. Generally, it takes far fewer words to express an idea in Latin than in English. Thus, the maxim is a memorable catchphrase of sorts. A few examples to make the case:

• De minimis non curat lex: The law does not care about the small things
• Lex Angliae lex terrae est: The law of England is the law of the land
• Origo rei inspici debet: The origin of a thing ought to be inquired into

Two, a maxim conveys an entire legacy of learned ideas on a subject in just a few words. Again, some examples:

• When a lawyer declares, malitia supplet aetatem (malice makes up for age), all of the judges and lawyers in the room know that he is saying an underage felon deserves to be tried as an adult because of the heinousness of his crime. Landmark cases in which that maxim was central to the court’s decision immediately spring to mind.
• Similarly, when a lawyer demands that a phrase be interpreted as having a reddendo singula singulis construction, he is clarifying that each word must be interpreted distributively. The explanation typically employed here is that in the phrase, “If anyone shall draw or load any sword or gun,” we know that “draw” applies to “sword” and “load applies to “gun,” because the phrase wouldn’t make sense otherwise. As you might imagine, this maxim is useful chiefly in deciphering some of the more painfully written contracts.

All of the above examples of maxims were in use in the medieval court. However, despite the proliferation of Latin maxims today – Jackson’s Latin for Lawyers pared them down for a modern audience to an essential grouping of only 1,075 – some of the most remarkable ones seem not to have survived the Middle Ages. The Year Books provide a bevy of examples, and because Seipp’s Abridgement, the Year Book database created and maintained by Prof. David Seipp of Boston University, is word searchable, putting the term “maxim” in the searchbox for “commentary” will help you to uncover some fascinating usages of medieval legal maxims.[11]

From the historian’s point of view, maxims offer a window into medieval law and culture. Ponder some of the following:

Literatura non facit clericum, nisi haberet sacram tonsuram: Literacy does not make a clerk, unless he has a monk’s tonsure.[12] Also, Quia habitus non facit monachum: A habit does not make a monk.[13]

Until 1827, a member of the clergy had the right to be tried in an ecclesiastical tribunal for any felony for which he stood accused.  From the perspective of the accused, this provision was a boon: the death penalty was not a part of the punishment menu in the church courts. In order to claim benefit of clergy, when brought to the bar, an accused felon was expected to declare that he was a member of the clergy, at which point justices were supposed to summon the ordinary (an ecclesiastical official) to come retrieve him. But how was the ordinary to know whether he was in fact a member of the clergy, as he professed? A variety of telltale signs were employed: a monastic habit; a tonsure (a shaven crown); certification of orders, if the paperwork could be located. Over time, literacy came to be the definitive test. For a long time, literacy was so closely tied to clerical status that the terms literatus and clericus both implied “literate” in the right construction. However, as the maxims above suggest, the king’s justices were not content to place all their eggs in one basket. If they were going to let a criminal evade execution as punishment for his crimes, they preferred multiple indicators of clerical status. The maxim was a useful reminder when a man wearing a layman’s clothes showed up in court and hoped to convince them that he was a priest.

Quia non capit Christus capit fiscus: What Christ does not take, the treasury takes.[14] Also, Quod non capit Christus rapit fiscus: What Christ does not take, the treasury snatches.

When a man died in medieval England, the vultures circled. Multiple parties, apart from the heir, stood to gain from his death. Heriot – payment of a man’s best beast, or best clothes – was owed to the lord; mortuary – payment of a man’s second-best beast, or second-best clothes – was owed to the church. If he died a felon, his lands and chattels were forfeit to the king, the lands for just a year

and a day before they returned to the deceased’s feudal lord, although the king kept his goods permanently. In some cases, the king and the church might both lay claim. Justice of Common Pleas John Paston offers up a hypothetical situation:  if a man donates all of his lands to the church, then commits suicide, what happens to his chattels, particularly if he dies intestate?  Paston tells us that if the ordinary does not wish to accept them, then they belong to the king. The image of a greedy, grasping king must have had great appeal to medieval audiences because numerous woodcut emblems of this maxim survive the era, in which the king stands wringing out a sponge while watching a queue of thieves waiting to hang so that he can claim their goods. Ernst Kantorowicz argued that the maxim was a bastardization of (one assumes) a much less controversial statement by Gratian in his Decretum:  hoc tollit fiscus, quod non accipit Christus (what is not received by Christ is exalted by the treasury).[15]

Ecce modo mirum quod foemina fert breve Regis, non nominando virum conjunctum robore legis: Behold now a wonder, that a wife brought the king’s writ, not naming her husband with her, a strong law?

Some maxims, like this one, were formulated in verse to make them easier to remember. This particular maxim refers to coverture, the notion that husband and wife are one person in law represented in the person of the husband. While eventually this came to be understood as civil death, that was not quite true of the middle ages. Women did have rights to sue at law; however, if she had a living husband, the two were expected to sue jointly in civil causes. Admittedly, this expectation did not deter many women; often a woman sued anyways, then waited to see if her suit would be quashed on those grounds.[16] With justice as their top priority, the king’s judges generally dismissed only those cases bound for failure regardless of who was suing.

A few more of my favorites to leave you with!

• Deus est procurator fatuorum: God is the lawyer of the foolish.[17]
• Mater ecclesia nemini claudit gremium: Our Holy Mother the Church never closes her bosom (to anyone).[18]
• Quia per emptionem et venditionem res spiritual efficiunt temporales: Because by purchase and sale, spiritual things become temporal.[19]
• Vigilantibus et non dormientibus iura subveniunt: Law helps those who are awake and not those who sleep.[20]

 

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Images

Quod non capit Christus rapit fiscus. From Andrea Alciato, Emblemata / Les Emblemes (1584). With kind permission of the University of Glasgow Library, Special Collections.

Alfred J. Horwood, ed., Year Books of the Reign of King Edward the First. Years XXI and XXII (London: Longman, 1873). Public Domain via Wikimedia Commons.

 

[1] John of Salisbury, Policraticus, 5:16, as cited in James A. Brundage, “Vultures, Whores, and Hypocrites: Images of Lawyers in Medieval Literature,” Roman Legal Tradition 1 (2002): 56-103, at 74-75.

[2] As one scholar describes it, medieval law French was a “bizarre mix of French, Latin, Anglo-Saxon and whatever other language happened to be hanging around.” Ivana Coghlan, “Law French – When Law and Language Collide,” The Law Bod Blog: News and Chat from the Bodleian Law Library (31 May 2018), http://blogs.bodleian.ox.ac.uk/lawbod/2018/05/31/law-french-when-law-and-language-collide/.

[3] Anyone hoping to read law French needs to discover J.H. Baker, Manual of Law French, 2^nd edn (Aldershot: Scolar Press, 1990).

[4] Ada Maria Kuskowski, “Lingua Franca Legalis? A French Vernacular Legal Culture from England to the Levant,” Reading Medieval Studies 40 (2014): 140-158.

[5] 36 Edw. III, Stat. 1, c. 15 (1362).

[6] 4 Geo. II, c. 26 (1731).

[7] As cited in F.W. Maitland, ed., Year Books of Edward II, vol. I: 1 & 2 Edward II (A.D. 1307-1309) (Selden Society, vol. 17, 1903), xxxiv.

[8] Bradin Cormack, A Power to do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509-1625 (Chicago and London: Chicago University Press, 2007), 182.

[9] Paul Hyams, “Due Process versus the Maintenance of Order in European Law: the Contribution of the ius commune,” in The Moral World of the Law, ed. Peter Coss (Cambridge: Cambridge University Press, 2000), 62-90, at 89.

[10] Stanley McQuade, “Ancient Legal Maxims and Modern Human Rights,” Campbell Law Review 18 (1996): 75-120, at 75.

[11] David J. Seipp, ed., Medieval English Legal History: An Index and Paraphrase of Printed Year Book Reports, 1268-1535 (Seipp’s Abridgement) (Boston University School of Law, accessed 7 November 2018), http://www.bu.edu/law/faculty-scholarship/legal-history-the-year-books/.

[12] Year Book (hereafter, Y.B.), 26 Edw III (1352), fos. 122b-123a (Seipp 1352.083).

[13] Y.B., Mich. term, 11 Hen. IV (1409), fos. 31a-31b (Seipp 1409.068).

[14] Y.B., Pasch. term, 19 Hen. VI (1441), fos. 62a-65a (Seipp 1441.028).

[15] Ernst Kantorowicz, The King’s Two Bodies: A Study in Medieval Political Theology (1957; repr. Princeton: Princeton University Press, 2016), 175.

[16] For an interesting discussion of the matter see Daniel Klerman, “Women Prosecutors in Thirteenth-Century England,” Yale Journal of Law and Humanities 14 (2002): 271-319.

[17] Y.B., Pasch. term, 8 Edw. IV (1468), fo. 4b (Seipp 1468.018).

[18] Y.B., Mich. term, 9 Hen. V (1421) (Seipp 1421.106rog).

[19] Y.B., Pasch. term, 20 Edw. IV (1480), fos. 3b-4a (Seipp 1480.035).

[20] Y.B., Trin. term, 34 Hen. VI (1456) (Seipp 1456.104ss).