LL-L "Terminology" 2004.01.26 (10) [E]

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L O W L A N D S - L * 26.FEB.2004 (10) * ISSN 189-5582 * LCSN 96-4226
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From: Arthur Jones <arthurobin2002 at yahoo.com>
Subject: LL-L "terminology" 2004.01.26


Groetjes, Laaglanners!

I am delighted that the evolution of legal terminology has found its way
into the Lowlands dialogue. Specifically, Heiko Evermann (Mor'n Mor'n
Heiko!) has done a good job of researching historical comparisons in the
development of Continental Civil Law systems and the Anglo-Saxon legal
matrix.

Latin terms certainly do abound in English law and in the countries of
ex-colonial origin. Please remember that two separate Latin superstrate
influences appear in English:

1. The Anglo-Saxon ecclesiastical churches frequently wrote their judgments
or decrees in church, or Later Latin. At the same time, they were both
applying and adding to the body of law later called Chancery, or Equity.
Beginning with root maxims, written in Latin, they based their decisions in
principles such as "he who seeks equity must do equity", and "Equity regards
as done that which ought to be done", among hundreds of others. Latin
examples are "quare clausam fregit" (trespass or breaking an enclosure), and
"res ipse loquitur" (the thing speaks for itself), a medieval forerunner of
strict liability legislation.

2. After the Norman invasion of 1066, courts began writing and recording
their judgments in Norman French. Thus, judges were obliged to be conversant
with Latin, French, and Anglo-Saxon, or English. Also, the ecclesiastical
courts came with time to be merged with the law courts, except that even
into modern times, they played two separate roles in society: For example,
only money judgments were available in law courts, whereas Equity or
Chancery courts could grant specific performance on a contract, or
injunctions where irreparable harm would occur if a litigant were allowed to
continue his/her present actions.

3. Linguistically, legal language on the British isles became a melting pot
of parallel practices and expressions. Hence, the convoluted language of
Anglo-Saxon contracts and wills, for example: "grantor hereby sells,
conveys, assigns, and sets across that piece of property..." or "lessor
hereby lets, leases, demises..." or "seller promises and covenants said
shovel..." In all those examples, one word denotes the object or transaction
in a Romance-derived word; its parallel or synonym is Germanic in origin.

4. Norman law, derived from Roman law, only developed equitable solutions
such as injunctions in Britain, beginning several generations after
William/Guillaume the Conqueror defeated Harold at the Battle of Hastings.
For this reason, the vestigial remnants of Norman rule, such as the Channel
Islands of Guernsey, Jersey, Alderney and Sark, have had difficulty
developing the law of equity, as it didn't exist in Normandie as they knew
it then.

Thus, I had the experience as a young lawyer, fresh out of U.S. and German
law studies, of confronting the Jurats of Guernsey in spring and summer
1970, and requested an injunction against certain proceedings. Their answer
was that Guernsey recognized no law of injunction, but instead offered the
"Clameur de Haro". Under that ancient remedy, I knelt on one knee of a
Wednesday morning, as the judges walked ceremoniously up the granite steps
to the court house. I then cried, "Haro! Haro! Haro! Aidez-moi, mon Prince,
on me fait tort!" , the legal prescript.

The request was denied, but the hearings, part in English, part in
Guernseyaise, were fascinating.

Met besten groeten,

Arthur A. Jones

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