American Legal Language and the Influence of the French | Michigan Bar Journal

While the Normans were substantially advanced in administration, William I understood that existing Anglo-Saxon law was superior to that of the Normans. Though from common roots, the English had developed their legal precepts beyond those of the Normans. Also, it was written. Indeed, the administration of law was, in itself, a form of governance for the English. Wisely, William I retained the corpus of English law; after all, legitimizing his claim to the throne rested upon recognizing the rule of law in place in England at the time. His argument, backed by force, was that he, and not Harold, was entitled to succeed Edward the Confessor as king.

William kept both the substance and the process of Anglo-Saxon law. The shire, hundred, and borough courts remained. Further, he validated the extant customary law as well as the ‘‘ancient rights and customs’’ of the king. For a period of time though, the law was applied differentially to Norman and Englishman. In 1074, Ordericus Vitalis described a dual system that had Saxon earl Waltheof tried according to one set of laws and Norman earl Roger of Hereford tried under another. The personal law that the Normans used, however, soon became too cumbersome to apply and territo­rial law, which extended to all of England, prevailed.

In contrast to the Norman approach, the language of the Anglo-Saxon law and courts was the vernacular, Old English. The ‘‘dooms’’ (laws) that formed the structure of Anglo-Saxon jurisprudence were plentiful and have survived, providing excellent non-narrative sources about the legal system in England during more than four centuries prior to the Norman conquest. Among the earliest are the dooms of Ethelbert of Kent, the first Christian king. His compilation of centuries-old customary law in 602–603 C.E. was expanded by other Kentish kings during the 7th century. Among the most thorough and impressive of pre-conquest laws are those of Alfred of Wessex at the end of the 9th century. Edward the Elder, Aethelstan, Edgar, Edmund, and Ethelred the Unready also promulgated laws, as well as Canute during the first third of the 11th century. This was the bounty that William I inherited.

In the decades immediately following the conquest, French was not used as the language of law. Nor is there documentation of any formal instruction in French in any school, and only one English-French legal glossary exists from that time. Following the reigns of William I and William II, though, written French emerged as important means of communication in England. French, along with British Latin, which was the chief language of the law, became the language of record for much of official life through the late 14th century.

A significant increase in the use of French as the language of governance and law took place during the reign of Henry II. He issued the first of three property writs in 1166, in French. The ‘‘Assize of Novel Disseisin’’—the writ of the newly dispossessed of land—was central to establishing a solitary system of legal appeal throughout the realm. Each freeman now could take his claim to a royal French-speaking court. Anyone wishing to seek a higher review was forced to do so in French, and courts below were left to address issues presented by the royal court that was employing French.

Henry II’s innovations extended beyond the promulgation of new writs. He and his ministers used the oral presentation and the brief royal writ, increasingly in French, to create precedent. There is record of only eight enactments during his reign. The vast reach of his change in the rule of England was accomplished through the legal system in his own language. Indeed, so successful was the domination of the law courts by French that it remained in use until after Charles II in the middle of the 17th century. It was not officially withdrawn as the court language until 1731.

There are five reasons that French, and not English, replaced Latin as the legal language of England beginning in the late 12th century: (1) the reforms begun under Henry II, including the Assize of Novel Desseisin, opened the door of royal French-speaking courts to all; (2) the laity, who were not particularly well-versed in Latin but spoke French, the chief language of the literate, assumed clerical roles at law; (3) there was a growing literacy and interest in French lit­erature overall; (4) the social structure was changing such that it favored French; and (5) the expanding wool trade with the Flanders and Picardy brought new requirements for speaking, contracts and documents, and litigation in French. Further, the legal system in France had recently changed from Latin to the vernacular.

There are yet other forms of French that evolved into Law French and remain part of the Anglo-American legal vocabulary. Pronouns and some adjectives were taken from the indirect case of Old French and used as nominatives: autruy, celuy, cestuy, nully, and qui. Examples of the use of these words in phrases that can still be found today are pur auter vie and cestuy que use.

The array of Law French used in the contemporary legal setting is fairly remarkable. The section for the letter ‘‘A’’ in the 4th edition of Black’s Law contains 2351 words beginning with that letter. Of that number, approximately 350 are words or phrases that could be considered Law French, of Anglo-Norman origin. The count of legal words and terms derived from French would increase several-fold if all the English words of French origin were included.

The review of Law French words and phrases beginning with the letter ‘‘A’’ is interesting. They include some that are in common use and others that are fairly archaic. By way of example, one can find a luy et a ses heires a touts jours, abus de confiance, adeu, advoutrer, and acquets as well as the more ­frequently used accrocher, affiant, appointee, amercement, arrest, apprehend, assault assignee, and appellee.