法言興衰錄｜戴啟思
蘋果日報 2019/12/18 12:00
專欄語言戴啟思人物
The Language of the Common Law-French?
Judges and magistrates conduct straightforward trials in Cantonese nowadays. Occasionally the lawyers may switch channels and speak in English if they have to refer to a legal textbook or a decided case which may assist in dealing with a point. However, this diversion into another language will not take up too much time usually, and the public and the parties will be able to understand what is going on in the courtroom.
The use of Cantonese is a vast improvement on what went on sixty years when English was the only language of the law. The witnesses would give their evidence in whatever dialect they use-Cantonese, Hakka, Fukienese, Putonghua-but this had to be translated into English for the benefit of the judge or magistrate and the lawyers who were likely to be English-speaking foreigners.
No matter how competent was the court interpreter-and some were very good indeed-the experience must have been deeply unsatisfying for non-English speakers.
Cantonese became the language of the law for most cases heard in the courts after it had lived in the shadow of English for over a hundred and twenty-five years because Hong Kong was a British colony using the English the common law. It was imposed on the population because colonizers did that sort of thing then.
It will come as a surprise, therefore, to know that the English had to put up with over five hundred years of lurking in the shadows as an inferior language before it achieved official status in the courts in England.
And, more surprising still, all the judges and lawyers spoke and wrote in languages that were not their mother tongues, namely in French and Latin. The English expressions for legal concepts were forgotten and had to be reinvented, usually in French, but sometimes in Latin.
The legacy of the time that the English common law was handled in French and Latin is still with us today. When lawyers talk about a person causing injury to another person for which they might recover damages, they use the French word 'tort', itself derived from a Latin word for 'wrong'. When an allegation of a crime is to be tried before a judge and several individuals, we talk about a 'jury trial', the term 'jury' also coming from Latin via the French language.
Sometimes there is a direct borrowing from Latin'. The famous court order that requires the release of an unlawfully detained person is called 'habeas corpus'- literally 'you have the body', and part of an order that a person holding another should bring the detained person to court. When lawyers speak about the required mental state to commit a crime-intention, recklessness or sometimes just negligence-they talk about the 'mens rea' of an offence, which is Latin for 'guilty mind'.
The linguistic colonization of English courts by French and Latin began in 1066 when William the Conqueror, who came from Northern France, killed the last Anglo-Saxon king. Before then, there existed a sophisticated legal system where English was spoken in the courts and records were kept in English. That all ended soon after the Conquest.
The French invaders introduced French as the language of government and Latin as the language used in official records. This split between the spoken word and the written record was, ironically, because the invaders were not as literate as the conquered English. The Frenchmen looked to monks and priests to act as record keepers for them because they were masters of the language used by bureaucrats across all Europe, namely Latin, the language of the Catholic Church.
Although the first and second generation of conquerors were assimilated into English society after about a hundred years and ceased to use French as a first language, French continued to be the language of power and was used exclusively at the royal court. It was prestigious because of this, and so English speakers with social aspirations tried to achieve at least a rudimentary knowledge of the language.
As the first judges were selected from the ranks of king's advisers, French was the language used in court while tri-lingual clerks completed the court record in Latin. Versatile English speakers who learned French and some Latin became the first advocates in the king's courts.
In the three hundred years between 1100 and 1400, the basics of the language of the common law were hammered out in English courts. Legal, technical terms like the ones mentioned above were worked out and adopted. They were readily understood by the judges and lawyers, if not by the general public who were excluded from the legal word minting process.
There came a time when the sheer linguistic power of English began to push back. Stories and poems in English started to circulate again in the fourteenth century after a four hundred year break. French ceased to be the language of power at the royal court and records began to be kept in English because it was more convenient for everyone.
In 1362 an Act of Parliament was passed which required judges and lawyers to use more English in court proceedings. The Act denounced the use of French in express terms. It said that French was "much unknown" and litigants did not understand what was said for or against them by the lawyers.
The irony was that the 1362 Act was published in French, which was the language of record for Parliament. Moreover, the Act did not change the requirement that court records still had to be kept in Latin.
The judges and lawyers of the late Middle Ages were like all lawyers the world over: cautious and conservative with a high dose of self-regard. Although the 1362 Act emphasized the use of English, it was not a requirement to use the modern equivalent of Plain English. Gobbets of French and Latin intermingled with English became the language of the lawyers amongst themselves, and they were not going to give up this linguistic hybrid so the ordinary public might understand them.
Although the formal court record had to be in Latin, French became the language of informal record and used in legal argument. However, it was not French as any Frenchman would know it. Because the language was used by an elite class of native English speakers that set its standards, rules of grammar and construction began to be ignored as there was a natural tendency to follow English rules of syntax.
In 1592 a French visitor to the courts in London was appalled by the mangling of his mother tongue by judges and lawyers. He compared the Law French of the English courts to the wreck of a beautiful house: 'where so many brambles and thorns are grown that it scarcely it appeareth that there ever there had been a house...' He declared that it was 'impossible for a Frenchman to understand them', i.e. the lawyers.
In 1688 a judge wrote the following comment on the record of a 1631 court case where a prisoner showed that he did not think much of the judge that had sentenced him.
"Richardson, ch. Just, de C. Bane, 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 immediatment hange in presence de Court."
Unpacking the French and Latin phrases but following the English sentence structure, in Plain English the comment is:
'Chief Justice Richardson was at the Summer Assizes at Salisbury in 1631. There he was assaulted by a prisoner who he had just condemned for a felony offence. After condemning him, the prisoner threw a brickbat ［hard object］ at the Justice that narrowly missed him. For that, the Justice had Noy ［a lawyer］ prepare an indictment ［charge］ against the prisoner who had his right hand cut off and fixed on the gibbet ［a scaffold］ on which he ［the prisoner］ was hanged immediately.'
Law French staggered on until the end of the Eighteenth Century just after another Act of Parliament that did away with the requirement that court records had to be kept in Latin.
But vestiges of the time English was the language of the powerless still linger on in legal words and phrases that are used in Hong Kong courts today.
If you have the bad luck to be a party in a civil court proceeding-plaintiff or defendant- you are so-called because by 1278 the French word for a person complaining to a court ('un pleintif') was being used in English courts. The other side-'un defendaunt'- appeared in the language nearly one hundred and twenty years later.
It would be fascinating to be able to see into the future and see what might be the status is of English. If the common law system endures, and Putonghua does not eclipse Cantonese, I wonder whether we will see English mutate into a professional dialect-Legal English-understood only by lawyers and judges. Always assuming that they and the common law survive into the next century.
－
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
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The use of Cantonese is a vast improvement on what went on sixty years when English was the only language of the law. The witnesses would give their evidence in whatever dialect they use-Cantonese, Hakka, Fukienese, Putonghua-but this had to be translated into English for the benefit of the judge or magistrate and the lawyers who were likely to be English-speaking foreigners.
No matter how competent was the court interpreter-and some were very good indeed-the experience must have been deeply unsatisfying for non-English speakers.
Cantonese became the language of the law for most cases heard in the courts after it had lived in the shadow of English for over a hundred and twenty-five years because Hong Kong was a British colony using the English the common law. It was imposed on the population because colonizers did that sort of thing then.
It will come as a surprise, therefore, to know that the English had to put up with over five hundred years of lurking in the shadows as an inferior language before it achieved official status in the courts in England.
And, more surprising still, all the judges and lawyers spoke and wrote in languages that were not their mother tongues, namely in French and Latin. The English expressions for legal concepts were forgotten and had to be reinvented, usually in French, but sometimes in Latin.
The legacy of the time that the English common law was handled in French and Latin is still with us today. When lawyers talk about a person causing injury to another person for which they might recover damages, they use the French word 'tort', itself derived from a Latin word for 'wrong'. When an allegation of a crime is to be tried before a judge and several individuals, we talk about a 'jury trial', the term 'jury' also coming from Latin via the French language.
Sometimes there is a direct borrowing from Latin'. The famous court order that requires the release of an unlawfully detained person is called 'habeas corpus'- literally 'you have the body', and part of an order that a person holding another should bring the detained person to court. When lawyers speak about the required mental state to commit a crime-intention, recklessness or sometimes just negligence-they talk about the 'mens rea' of an offence, which is Latin for 'guilty mind'.
The linguistic colonization of English courts by French and Latin began in 1066 when William the Conqueror, who came from Northern France, killed the last Anglo-Saxon king. Before then, there existed a sophisticated legal system where English was spoken in the courts and records were kept in English. That all ended soon after the Conquest.
The French invaders introduced French as the language of government and Latin as the language used in official records. This split between the spoken word and the written record was, ironically, because the invaders were not as literate as the conquered English. The Frenchmen looked to monks and priests to act as record keepers for them because they were masters of the language used by bureaucrats across all Europe, namely Latin, the language of the Catholic Church.
Although the first and second generation of conquerors were assimilated into English society after about a hundred years and ceased to use French as a first language, French continued to be the language of power and was used exclusively at the royal court. It was prestigious because of this, and so English speakers with social aspirations tried to achieve at least a rudimentary knowledge of the language.
As the first judges were selected from the ranks of king's advisers, French was the language used in court while tri-lingual clerks completed the court record in Latin. Versatile English speakers who learned French and some Latin became the first advocates in the king's courts.
In the three hundred years between 1100 and 1400, the basics of the language of the common law were hammered out in English courts. Legal, technical terms like the ones mentioned above were worked out and adopted. They were readily understood by the judges and lawyers, if not by the general public who were excluded from the legal word minting process.
There came a time when the sheer linguistic power of English began to push back. Stories and poems in English started to circulate again in the fourteenth century after a four hundred year break. French ceased to be the language of power at the royal court and records began to be kept in English because it was more convenient for everyone.
In 1362 an Act of Parliament was passed which required judges and lawyers to use more English in court proceedings. The Act denounced the use of French in express terms. It said that French was "much unknown" and litigants did not understand what was said for or against them by the lawyers.
The irony was that the 1362 Act was published in French, which was the language of record for Parliament. Moreover, the Act did not change the requirement that court records still had to be kept in Latin.
The judges and lawyers of the late Middle Ages were like all lawyers the world over: cautious and conservative with a high dose of self-regard. Although the 1362 Act emphasized the use of English, it was not a requirement to use the modern equivalent of Plain English. Gobbets of French and Latin intermingled with English became the language of the lawyers amongst themselves, and they were not going to give up this linguistic hybrid so the ordinary public might understand them.
Although the formal court record had to be in Latin, French became the language of informal record and used in legal argument. However, it was not French as any Frenchman would know it. Because the language was used by an elite class of native English speakers that set its standards, rules of grammar and construction began to be ignored as there was a natural tendency to follow English rules of syntax.
In 1592 a French visitor to the courts in London was appalled by the mangling of his mother tongue by judges and lawyers. He compared the Law French of the English courts to the wreck of a beautiful house: 'where so many brambles and thorns are grown that it scarcely it appeareth that there ever there had been a house...' He declared that it was 'impossible for a Frenchman to understand them', i.e. the lawyers.
In 1688 a judge wrote the following comment on the record of a 1631 court case where a prisoner showed that he did not think much of the judge that had sentenced him.
"Richardson, ch. Just, de C. Bane, 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 immediatment hange in presence de Court."
Unpacking the French and Latin phrases but following the English sentence structure, in Plain English the comment is:
'Chief Justice Richardson was at the Summer Assizes at Salisbury in 1631. There he was assaulted by a prisoner who he had just condemned for a felony offence. After condemning him, the prisoner threw a brickbat ［hard object］ at the Justice that narrowly missed him. For that, the Justice had Noy ［a lawyer］ prepare an indictment ［charge］ against the prisoner who had his right hand cut off and fixed on the gibbet ［a scaffold］ on which he ［the prisoner］ was hanged immediately.'
Law French staggered on until the end of the Eighteenth Century just after another Act of Parliament that did away with the requirement that court records had to be kept in Latin.
But vestiges of the time English was the language of the powerless still linger on in legal words and phrases that are used in Hong Kong courts today.
If you have the bad luck to be a party in a civil court proceeding-plaintiff or defendant- you are so-called because by 1278 the French word for a person complaining to a court ('un pleintif') was being used in English courts. The other side-'un defendaunt'- appeared in the language nearly one hundred and twenty years later.
It would be fascinating to be able to see into the future and see what might be the status is of English. If the common law system endures, and Putonghua does not eclipse Cantonese, I wonder whether we will see English mutate into a professional dialect-Legal English-understood only by lawyers and judges. Always assuming that they and the common law survive into the next century.
－
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.
探索驚奇精彩的 wONdEr 故事，請LIKE 我們的Facebook Page，並設定為「搶先看」：
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