the origins of legal concepts
TRANSCRIPT
Electronic copy available at: http://ssrn.com/abstract=2196968
Legal Studies Paper No. 2013-‐2
Roots of the Law:
The Origins of Legal Concepts, Institutions, and Language
Professor Peter Tiersma
Electronic copy available at: http://ssrn.com/abstract=2196968Electronic copy available at: http://ssrn.com/abstract=2196968
ROOTS OF THE LAW:
THE ORIGINS OF LEGAL CONCEPTS,
INSTITUTIONS, AND LANGUAGE
By Peter Tiersma
Loyola Law School, Los Angeles
www.LanguageAndLaw.org
Note to the Reader
This file contains the first part of my latest book project, which could be
described as an encyclopedic dictionary of the history of law. Specifically, it
contains entries beginning with the letter a.
I would very much like your comments on whether this is a worthwhile
project, especially on the following issues:
Should it be published in traditional book format? Or published as an
ebook? Or perhaps be published only on ssrn, one chapter at a time, as I
write them??
Does the format of the entries make sense? I strive to give a very brief
definition of a term or concept in ordinary English, followed by its historical
meaning(s), and then usually end with an etymology of the word or words
in question.
Does the rather idiosyncratic grouping of terms and concepts work? Entries
consist of terms that are related etymologically, or sometimes semantically,
or sometimes perhaps rather whimsically.
Entries vary greatly in length—are they too long or short?
Please send comments to me at the above address. Thanks!
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2
Abbreviations
pp.=past participle
Chapter A.
Quite a few legal terms begin with the letter a, especially those that
ultimately derive from Latin (usually via French). Many of these words begin with
the prefix ad-, meaning, among other things, “at, toward.” The d of ad- can
assimilate to the following consonant. Thus, it becomes a c in ac-complice, an f in
af-fidavit, and an l in al-legation.
Abandonment (and abandoned hearts).
The origin of abandon is complex, and so is its meaning (or, perhaps better,
its meanings). It can be a noun with the meaning of “exuberance” or “a complete
surrender of inhibitions.” Yet it is not a normal noun, in that it almost invariably
occurs only as part of the fixed phrase with abandon. Someone who acts with
abandon does something exuberantly or recklessly.
As a verb, abandon usually refers to withdrawing support from someone
(abandoning a friend in need) or withdrawing from a place (abandoning ship). In
the legal sphere it refers to relinquishing or giving up a right, claim, or property
interest of some kind. Abandoning people or things can have serious implications,
depending on the circumstances. If you abandon a patent or copyright, you may
give other people the right to use it. If you abandon a child or spouse, the police
may come looking for you.
The adjective form, abandoned, can have either of these meanings. Most
commonly, it refers to people or objects that have been abandoned, such as friends
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3
or ships, and means “deserted” or “forsaken.” But abandoned can also relate to the
noun form of the word, in which case it is defined as “exuberantly enthusiastic” or
“recklessly unrestrained.” This is its meaning in the crime known as abandoned
heart murder.
Legally, an abandoned heart murder (also referred to as abandoned and
malignant heart murder or depraved heart murder) is a homicide that was
committed not with intent to kill, but with a reckless disregard for human life.1 In
other words, it is a killing committed with abandon in the sense of “complete
surrender of inhibitions” or “recklessly unrestrained.” On the other hand, if the
killing was carried out with enthusiasm or exuberance (another definition of
abandon), it would almost certainly be prosecuted as an intentional killing, not as
abandoned heart murder.
Additional confusion is engendered by the possibility that an abandoned
heart might simply refer to a heart that has been abandoned. There are several
songs that bemoan an abandoned heart, especially in country western music. In
this sense the heart is envisioned as the locus of love, as the term sweetheart
attests. Despite appearances, an ensuing homicide would not necessarily be an
abandoned heart murder.
Given all of these possibilities for befuddlement and confusion, it would
seem prudent to abandon the term abandoned heart entirely, especially when
trying to explain the law of homicide to a jury. California, for instance, does not
use the term in its instructions, instead telling jurors that murder requires either
having an intent to kill, or committing an intentional act whose natural and
probable consequences were dangerous to human life.2 Unfortunately, some states
still use the phrase abandoned heart when instructing jurors, thus abandoning them
1 See Cal. Pen. Code § 188.
4
to their own devices.3
Like so many legal terms, abandon comes to us from French (cf. modern
French abandonner) and is based on Old French bandon “jurisdiction, control.” To
abandon originally meant to give control or jurisdiction to someone else, but today
its core meaning consists of merely of ceding control, even if given to no one in
particular. Thus, to abandon property is to relinquish control or jurisdiction over it.
Similarly, if you recklessly kill someone, you have given up or lost control of
yourself.
Abatement.
To abate something generally requires reducing it. Abatement originally
referred to reducing the size of a physical object, a concept that is readily extended
to more abstract and ephemeral matters. If a judge orders people to abate a
nuisance, such as incessant loud partying, they are expected to reduce the noise
and other annoying impacts that their festivities have on their neighbors, or perhaps
to party less often. In wills law, abatement refers to the process of reducing gifts
made by a will if the estate has insufficient assets to pay them all. Dying without
having enough money to fund all the generous gifts that you hoped to leave behind
as a legacy would, of course, be quite embarrassing. The good news is that
normally the shortfall will not become evident until after your demise.
The word derives from Law French abater or abatir, meaning “to cast down,
to knock down, to fell (a tree).” The word abattre still exists in modern French,
with a similar meaning. The French term ultimately comes from Latin ad “at” and
battere “to beat,” thus “to beat at” something. The relationship of battere to
2 Judicial Council of California, Criminal Jury Instructions No. 520 (2011).
3 See, e.g., Sheahan v. Smith, 2011 WL 1219681 (D. Idaho 2011); Libby v. McDaniel, 2011 WL
1301537 (D. Nev. 2011).
5
English beat and batter should be obvious (see also battery).
Abet. See aid and abet.
Abridge.
This word ordinarily refers to condensing something, curtailing it, or
reducing its length. It is probably best known in the negative, especially in the
phrase unabridged dictionary. That a dictionary can truly be unabridged, in the
sense of containing every English word currently in existence, seems highly
doubtful.
When used by lawyers its meaning does not differ much from ordinary
usage, and it may in fact not really be a technical term at all. The word does have a
great deal of legal significance, however, primarily because the First Amendment
of the U.S. Constitution forbids Congress to abridge the freedom of speech or of
the press. Taken literally, that would prohibit Congress from curtailing or
abbreviating in any way the right of citizens to say whatever they want. Yet that is
not how the courts have interpreted it. They have created a distinction between
“protected” and “unprotected” speech. Political discourse, for instance, gets a high
degree of protection. Threats and obscenity are generally not considered “speech,”
or they receive relatively less protection. Essentially, the Supreme Court has
abridged the First Amendment by curtailing the meaning of abridge.
Yet in other ways the courts have extended its reach. The First Amendment
refers only to “speech” and “the press,” yet courts have consistently applied its
protections to “writing” that has not been published on a printing press, including
writing on websites, blogs, and so forth. Both the abridgment and the extension
are sensible in light of current social and political realities, and they highlight that
the Constitution must be, at least to some extent, a living document.
6
Abridge can be traced back, via French, to Latin abbreviare “to shorten,”
thus “to abbreviate.” This in turn contains the prefix ad- and the root brevis,
meaning “short;” see brief.
Accessories and accomplices.
An accessory is someone who helps someone else commit a crime. Courts
often distinguish between an accessory before the fact (someone who helps set the
stage for the commission of the crime) and an accessory after the fact (often
someone who helps abscond or hide the evidence). See also aid and abet.
The word is ultimately related to access, which means something like “a
means or opportunity of approaching something or someone.” The Latin verb
accedere (p.p. accessum) means “to approach” or “to come near.” It had the
subsidiary meaning “to be added,” and the noun based upon it (accessio) likewise
could mean “a thing added, an appendage.” Apparently, when someone
approaches or has access to a group, she adds to the group. It is this secondary
meaning—“something added” or “an additional thing”—that underlies the legal
meaning of accessory. An accessory does not commit the principal crime, but adds
to it, and for that reason may receive a less severe punishment than the perpetrator.
See also accomplice.
Most people think of accessories as things you purchase in clothing shops or
department stores. The meaning in this context is similar, in that fashion
accessories (jewelry, handbags, etc.) are not a person’s principal clothing, but
rather are items that are added to, or complement, a suit or other garments.
Similar to an accessory, an accomplice is someone involved in the
commission of a crime, either by directly perpetrating it (as the principal) or by
aiding and abetting. The word overlaps in a confusing way with accessories.
Unlike an accessory, the term accomplice may include the principal. An accessory
7
before the fact is usually treated as an accomplice, but an accessory after the fact is
often not, depending on the jurisdiction and other factors.
Whether someone involved in committing a crime is a principal or an
accomplice can often influence the length of the sentence. There is also a very
practical reason why it’s better to be an accomplice. When police and prosecutors
cannot find sufficient evidence to convict a suspected criminal, they often seek to
make a deal with an accomplice, promising her leniency if she testifies against the
other defendants. Although such deals are intended merely to loosen the lips of the
accomplice, they sometimes lead to molding the evidence in favor of the
prosecution or outright perjury. There is good reason that the colloquial name for
such accomplices is snitches, a word with a distinctly negative connotation. In the
eighteenth century, English courts began to require corroboration (independent
supporting evidence) of accomplice testimony, a rule generally still in place today.4
Accomplice, once you remove the prefix ac (the assimilated form of ad-), is
related to complicity, in that the accomplice has complicity, or is complicit, in the
perpetration of the crime. Complicity derives from an archaic noun, complice,
which refers to an associate. That word, in turn, can be traced to the Latin
complicare, which means “to fold together, fold up.” Once you fold something up
enough, it becomes complicated to undo it. And that seems an appropriate
connection, because deciding who is an accomplice (as opposed to an accessory or
principal) is often a complex matter.
Accusations and allegations.
Both of these terms refer to statements that blame someone for doing
something bad, or perhaps for failing to prevent something bad from happening.
4 Baker, History, at 583; Alexandra Natapoff, Snitching: Criminal Informants and the Erosion of
8
Although in ordinary language they are to some extent interchangeable, the
profession refers to accusations of crime, as opposed to allegations of wrongful
(but not necessarily criminal) misconduct. Thus, in the criminal law, prosecutors
use an indictment or information to accuse a person of having committed a
crime. In civil lawsuits, a plaintiff usually draws up a complaint that alleges that
someone breached a contract or committed a tort.
Accuse comes via French from the Latin accusare. Ac-cusare derives from
the prefix ad- combined with the root causa, or “cause.” Thus, it is essentially a
claim that the person caused, or should be blamed for, the problem at hand.
Acquit and quit.
Juries in criminal cases are usually instructed to return a verdict of either
“guilty” or “not guilty.” If it’s guilty, we say that the defendant was convicted, and
if not guilty, that he was acquitted. The Fifth Amendment of the Constitution
mandates that a person cannot twice be put in jeopardy of life or limb for the same
offense, which means that once a defendant is acquitted, he cannot be tried again
for that crime.
Perhaps the best known use of the word in recent times was in lawyer
Johnny Cochran’s closing arguments, in which he defended O.J. Simpson, a former
football star, against accusations that he had murdered his former wife. A knit cap
had been found near the scene of the crime, presumably worn by the killer. During
the evidentiary phase of the trial, in a dramatic scene that was broadcast live on
television, Simpson had tried on the cap. It appeared to be too small for his rather
large head. Cochran alluded to this scene during his final arguments, repeatedly
intoning the memorable phrase, “If it doesn’t fit, you must acquit.” That, of
American Justice (2009); Calcrim, No. 334.
9
course, is exactly what the jury did.5 It meant that Simpson could never again be
tried for murder. However, the double jeopardy principle does not prohibit filing a
civil case against someone who has been acquitted of the criminal charge, as
Simpson discovered when his former wife’s family filed and won a wrongful
death lawsuit against him.
Acquit was borrowed from Law French, which had a verb acquiter, which
meant not just “to acquit” but also “to release” or “to pay off.” The latter senses of
the word are reflected in acquittance, which refers to a receipt or other document
evidencing a payment or release of a debt or obligation, much as a defendant is
released from a criminal charge by an acquittal.
A variant of acquit, once we remove the prefix ac-, is the word quit.
Although the primary meanings of quit are currently “to leave” or “to discontinue,”
it can also be used to refer to a release or payment, as in “to quit a debt.” Once you
pay off the debt, you receive a quittance or an acquittance.
All of these words come via various routes from the Latin quietus, meaning
“resting, quiet, peaceful.” Once a debt is paid off, or a person has been found not
guilty, it’s time to give the former debtor or acquitted defendant some peace and
quiet.
Acts and actions.
In ordinary language the words act and action to a large extent overlap. Yet
each has a distinct semantic field in the law. The word action is used mostly to
refer to lawsuits. Thus, a plaintiff might initiate or file an action against the
defendant. To say that someone’s conduct is actionable suggests that it might
result in a lawsuit.
5 Peter M. Tiersma, Legal Language 189 (1999).
10
Act, on the other hand, has two main meanings. It can refer to a statute or
piece of legislation, such as an act of Congress or an act of Parliament. Historical
examples include the Act of Union, whereby England and Scotland were united
into one nation, or the Fugitive Slave Act, which required states that opposed
slavery to return runaway slaves to their owners; it was one of the factors leading
to the Civil War. See also legislation.
An act can also refer to criminal or other wrongful conduct. A civil action
for negligence, for instance, usually requires the plaintiff to prove that the
defendant engaged in a defined act (such as driving through a red traffic light) with
a specified state of mind (usually negligence or recklessness). Likewise, criminal
offenses are generally defined in terms of a particular act, such as killing someone
(called the actus reus, or “guilty act”) while having a specified mental state, such
as an intent to kill (called the mens rea, or “guilty mind”).
Both of these terms derive from the Latin verb agere (pp. actus), which had
meanings including “to set in motion,” “to incite to action,” and “to do, perform.”
The noun form actio could refer even in Roman times to a lawsuit. The variant
actus, also derived from agere, referred mainly to driving or moving something.
Its legal meaning developed later, likely influenced by French, in which the word
acte has come to refer to legal documents in general (not just statutes), and in
particular to deeds authenticated by a notary.
Other legal terms derived from agere include agent and agency.
Ademption.
This rather odd word, the verb form of which is adeem, is mostly used in
wills law. One variety is ademption by extinction, which refers to the situation
where a person who makes a will (called a testator) leaves someone a legacy of a
11
specific thing (e.g., a ring or car or house) to a legatee, and that item at the time of
death is no longer in the estate because the testator sold it or gave it to someone
else. In that event the testamentary gift has been adeemed or extinguished.
Traditionally, at least, the legatee receives neither the original legacy or a
substitute. The principle does not apply to what is called a general legacy, such as
money. Suppose that a will gives $10,000 to someone and that when the testator
dies there is only $1000 cash in the estate. Other assets will have to be sold to pay
the $10,000 legacy. If the estate has too few assets to pay the legacy, it will be
subject to abatement.
The other variety is ademption by satisfaction. Suppose once again that the
testator’s will leaves someone $10,000. The recipient is going to college and could
use some money; the testator thus gives her $5,000. Is this subtracted from the
legacy? It generally depends on what the testator intended. If the testator intended
the $5000 to be deducted, the gift is adeemed by satisfaction, or simply satisfied.
After the testator dies, the recipient will receive only the remaining $5000.
In the past judges were quite strict in applying ademption, especially in the
case of extinction. Suppose that a wealthy aunt has a will giving her nephew the
mansion that she inhabits. Later, she is moved to a senior citizens’ residence and
sells the house, placing the proceeds in a separate bank account. She then dies
houseless but very wealthy. Does the nephew get the proceeds of the mansion’s
sale? Answer: the gift was extinguished, because the house was a specific legacy
and it was no longer in the aunt’s estate when she died. The fact that the money
obtained from the sale can easily be traced to the bank account was—and to a large
extent still is—irrelevant.
Recently, judges and legislators have found a number of ways to reduce the
harshness of this rule. For instance, some jurisdictions do not apply ademption
unless there is evidence that the aunt, in moving and selling her mansion, intended
12
the gift to be extinguished. If she simply moved because of her age or the
difficulty and expense of maintaining a large dwelling, ademption would not apply.
Other states, however, continue to apply the rather harsh traditional rule. Where
you die can make a big difference to your heirs!
The word derives from the Latin noun ademptio “a taking away,” from the
verb adimere “to take away” (pp. ademptum). Whether a legacy is extinguished or
satisfied, it is taken away from the person slated to receive it by will.
Admiralty.
Admiralty is a branch of law that deals with problems and calamities that
take place on navigable waters, and particularly the high seas, or oceans. Matters
that did not take place on terra firma in England were held to be outside the
jurisdiction of the common law courts, so in the fourteenth century the Court of the
Lord High Admiral of England was created to settle maritime disputes. The judges
were trained in the civil law at the universities (not the inns of court). As a
consequence, they generally applied international law of the sea, and also adopted
procedures from the civil law. Thus, the law and procedure of English admiralty
was quite different from ordinary courts. Also distinct was that a silver oar was
placed in front of judges hearing maritime cases. The last vestiges of a separate
English admiralty court were abolished in 1970.6
In the British colonies in North America, there were several vice-admiralty
courts. They were unpopular among the colonists because they enforced British
trade policy, as well as cases arising under the much-hated Stamp Act. Some or all
of these courts had their own silver oars as symbols of their authority.7
After independence, the Constitution (art. III, § 2, cl. 1) gave jurisdiction
6 ELH, 141-43.
13
over maritime matters to the federal courts. When hearing maritime matters,
federal judges are said to be “sitting in admiralty,” but nowadays they make do
without silver oars. Nonetheless, the tradition of separate rules and procedures
continues. For instance, maritime law allows a plaintiff (called a “libelant”) to file
a complaint (called a “libel”) against a ship that has caused an injury. It’s
analogous to suing an automobile for an accident, rather than suing the person who
was driving it.
The word admiralty is indeed related to admiral, which in the minds of
many people conjures up images of Lord Admiral Nelson wearing a funny hat and
admiring the fleet. Despite appearances, however, admiral does not derive from
admire. Rather, its lineage goes back, via Old French amiral, to Arabic ‘amīr a’ālī,
meaning “high commander,” a phrase that contains the word amir (a variant of
emir) “prince or governor.” The supposed relationship to admire may explain the
insertion of the d.
Admiralty is one of the few words of Arabic origin in legal English. Such
words are more common in Spanish, since parts of Spain were under Arab rule for
centuries. Examples are alcalde “magistrate” and alguazil “justiciary, sergeant.”
Adoption.
The process of adoption refers to the situation where a person (or more often
a couple) becomes the legal parent of a child (or sometimes an adult) who is not
his genetic offspring. Adopted children need to be distinguished from
stepchildren, who live with the husband or wife of a natural parent but were never
adopted by that person, and who therefore are not legally the stepparent’s child.
Although adoption was recognized as far back as the Roman empire, the
7 Friedman at 19-20; on the silver oars, see http://www.nhd.uscourts.gov/ci/history/oar.asp.
14
common law traditionally rejected it. In the United States, laws allowing adoption
began to appear during the second half of the nineteenth century, beginning with
Massachusetts in 1851. England did not come around until 1926. Before this time,
people must surely have taken in children whose parents had died or who were not
able to take care of them. In many cases the community would have recognized
them as de facto parents. And the de facto parents might well have treated them as
natural children, which might include giving them property by their wills.
Problems arose when the de facto parents did not have a will. In that event
their property was distributed by the rules of intestate succession, which generally
distribute some of a deceased person’s assets to a surviving spouse, if there is one,
and the rest to the decedent’s blood relatives, which would usually exclude their
stepchildren. Adoption statutes allow the establishment of a parent-child
relationship, giving the adoptive child the same rights and responsibilities as a
natural child.8
Although adoption is a recent phenomenon in the common law, the word
itself has been around since the Romans, who referred to the process as adoptio.
The Latin verb adoptare generally means “to choose for oneself,” and more
specifically, “to adopt.” The stem of this verb, optare, means to “choose” and is
related to the modern English words opt and option, both of which refer to making
choices. Thus, adoption can be viewed as allowing you to choose your children, in
the same way that you can adopt a new hair color, name, or even a religion.
Adults and adultery.
Do you have to be an adult to engage in adultery? Jokes and riddles have
8 Friedman, Dead Hand, at 11-12; 56-7.
15
been based on the similarity of these two words. It turns out that they have
different Latin roots. The word adult comes from adultus, which is a past
participle of Latin adolescere “to grow up” and thus can be translated as “grown
up.” The word adolescent derives from the present participle and means “growing
up.”
Adultery, in contrast, comes from Latin adulter “adulterer,” a word that is
the basis for adulterate, which refers to debasing something or making it impure,
generally by adding or mixing in inferior ingredients. Adultery was thus viewed as
debasing or polluting the bloodline of a family.
Currently, adultery is not a crime in most countries, although in Biblical
times it was punished by stoning. Until recently, when no-fault principles took
hold in most places, adultery was one of the grounds for obtaining a divorce. Even
today, catching one’s spouse in flagrate delicto may operate as a defense to a
murder charge, potentially reducing the crime to the lesser offense of
manslaughter, but usually only if the killer acted in the heat of passion. Thus,
passion by one spouse may justify counter-passion by the other.
Finally, adultery may sometimes be the basis for a lawsuit by the betrayed
spouse against the seducer of the wife or husband. This is known as alienation of
affection. See heartbalm statutes.
Adversaries, adverse possession, versus
These words all share the Latin root versus (“turn of the plow” or “furrow”).
A furrow is a rut or grove made in the soil by a plow, which explains its
metaphorical extension to verse, a line or set of lines in a poem or the Bible.
Viewed from above, a plowed field looks a lot like a page from a book. Versus is
the past participle of vertere, meaning “to turn” (as when a plow turns soil in a
field). We see this root in words like convert “to turn to a different religion” or
16
revert “to turn back to a previous state.”
Once we attach the prefix ad-, we get advertere (pp. adversus) “turn
towards, oppose, resist.” Thus, an adversary is someone you resist against or are
opposed to. Common law trials are famously adversarial, with each side fighting
tooth and nail against the other, presided over by a relatively passive judge, who
functions mainly as a referee. Common law lawyers believe that the adversarial
system is the best way to discover the truth. In civil law countries, judges are more
active and the lawyers are expected to be more cooperative, although differences
between these two systems have receded recently.
The adversarial nature of trials is highlighted by the use of versus in case
names, although technically the correct Latin term would be adversus; classical
Latin versus means “toward,” while adversus means “against.” The ad-prefix was
dropped at some point, and for the past centuries versus (or its abbreviated form,
vs. or v.) has been used in case names. It eventually entered the common lexicon,
where it is used inter alia to describe adversarial sporting events (consider the
famous match of Cassius Clay versus Sonny Liston).9
Adverse possession is a doctrine that allows you to build a house on
someone else’s land, place a fence around it, and after a certain number of years to
legally obtain ownership of the land you occupy. It has often been derided as
legalized theft. It is adverse because the usurper’s claim must be hostile to that of
the legal owner. In other words, if you obtain the owner’s permission to build a
house on her land, you cannot obtain title via adverse possession. But if you
intentionally build on what you know to be someone else’s land, and the owner
does nothing about it for a certain number of years, you may succeed. From the
9 See Lawtalk at ____.
17
perspective of the former owner, legalized theft is an apt description. 10
Advocates. See attorneys and lawyers.
Affiants and affidavits.
Affiants are people who make affidavits, which are statements made under
oath. They are the written equivalent to testimony, which refers to oral statements
made under oath. Whereas testimony generally takes place in a courtroom,
affidavits can be made anywhere, although they often end up in court as evidence.
The normal procedure is for someone to present a declaration to a notary public,
who places the person under oath and has him swear that it is true and correct. The
notary then adds a statement that recites that the oath was administered and that the
affiant swore to its truth, and then attaches her stamp or seal.
Affidavit contains the prefix ad- and the medieval Latin verb fidare “to
trust.” The root of the verb is fides “trust, confidence,” which related to the
modern English faith, as well as words like fidelity, confidence, and fiduciary.
Affray.
An affray might be viewed as a private riot. It generally involves mutual
combat (a fight in plain English) that occurs in a public place and that disturbs the
peace or makes onlookers afraid for their safety. There are statutes in various
states that criminalize certain types of affray. In North Carolina, for instance, it is
a misdemeanor to commit an assault or affray on a firefighter.11
Being involved in
an affray (sometimes also called mutual affray or mutual combat) may also serve
as a defense or justification for assault and battery or even for homicide, especially
10 Please consult a lawyer before trying to adversely possess someone else’s property. ____.
18
if you didn’t start the fight.12
As mentioned, part of the essence of the crime of affray is that the hostilities
frighten onlookers, or make them afraid. Yes, these words are indeed related. In
Law French the verb afrayer meant either “to frighten” or “to fight.” Drop the
initial a (a process called aphesis, also seen in cute from acute), and you get fray,
as in enter the fray.
Like a surprising number of other French words, fray and affray come from
a Germanic root, in this case frith, meaning “peace.” Combined with the prefix a-
or ex-, it meant something like “to remove from peace,” which is commonly what
an affray does. Frith or frid was the word for “peace” in Old English, and in a
somewhat more modern form (fred) it remains in names like Fred-erick (“peaceful
ruler”) or Win-fred (“friend of peace”).
Agents and agency.
Although it has a broader set of ordinary definitions, in the legal world an
agent is someone who is empowered to engage in a legal transaction, or set of
transactions, for someone else (usually called the principal). Someone becomes an
agent by means of a contract or a document called a power of attorney, which—
despite its name—does not turn someone into a lawyer. Rather, the power of
attorney makes someone your attorney in fact, that is to say, your legal agent.
A large body of agency law has been developed over the years to deal with
questions like how to establish an agency relationship, how long it lasts, and what
the powers of an agent are. Generally, a principal is bound by the acts of an agent
only if he authorized them or later ratified them. The scope of an agent’s authority
is often a source of contention today, just as it was in medieval times. For
11 N.C. Gen. Stat. § 14-34.6 (2009).
19
centuries English women could not own separate property—it all belonged to their
husbands. As a result, they could not enter into contracts. If you made a contract
with a married woman, it was void, unless she acted as her husband’s agent. If she
bought supplies for the household, an agency relationship was usually presumed
and the husband had to pay for them. If she bought herself a new dress, on the
other hand, there would have been a good chance that the husband could have the
deal voided because the wife acted on her own, rather than as his agent.13
Let the
seller beware!
The basis for these words is the Latin verb agere, meaning “to do.” Broadly
speaking, an agent is someone who does something for you. See also acts and
actions.
Aid and abet.
To help someone commit a crime is often itself a crime, although the aider
and abettor (sometimes also known as accomplices or accessories) may receive a
lesser punishment than the actual perpetrator (a.k.a. the principal). At first glance,
aiding and abetting seems to be just another of the many redundant phrases in the
law (such as a cease and desist order or a last will and testament). There are,
however, some subtle differences.
To aid someone is nothing more or less than “helping” the person. Abet can
likewise mean “help,” but it tends to be used more in the sense of encouraging or
urging a person to do something. Critically, the crime is always aiding and
abetting, never just aiding or just abetting or abetting and aiding. Thus, aiding
and abetting has become a fixed idiom with a significance that no longer depends
on the meanings of the individual words that comprise it.
12 See Adams v. State, 995 A.2d 763 (Md. Ct. App., 2010).
20
Aid comes to us from French and can be traced back to the Latin verb
adjutare “to help, assist.” In the military, an adjutant is someone who helps a
commanding officer. The origins of abet are a bit more complex. It derives from
Old French abeter, meaning “to entice,” which in turn is composed of the prefix a-
(cf. the common Latin prefix ad-) plus beter, a word that the French apparently
borrowed from an Old Norse word that is equivalent to the modern English bait.
This word is the causative of bite, and thus originally meant something like “to
cause someone to bite.” As we might say today, if you bait someone to do
something illegal, you have abetted the commission of a crime.
Alias, alibi, aliens, alienation.
All of these words have something to do with otherness, which is not
surprising in light of their common derivation from the Latin alius “other.” An
alias refers to another name that a person uses in lieu of their actual name. There
is nothing wrong with having an alias, of course, unless you adopt one in order to
facilitate committing a crime. If you are accused of criminal activity, with or
without an alias, you would be well served to have an alibi, which is essentially a
defense that depends on your having been in some other location, one that was not
at or near the scene of the crime. The best alibi, of course, would be your presence
in another country when the offense took place, making you alien to the
jurisdiction. Of course, if you commit a crime and then go to another country, you
would be a fugitive, but that’s another matter.
The law has not always been kind to aliens. In medieval England they could
not own land or bring lawsuits. However, England’s economy depended on trade,
so the king gave letters of safe conduct to foreign merchants and others, declaring
13 Baker, History, at 555-556.
21
them to be “alien friends.” By the end of the fifteenth century, aliens were
permitted to own land and take advantage of the legal system.14
The English
colonies in the Americas, and later the states, also tended to allow landownership
by foreigners, which is not surprising in a nation consisting largely of
immigrants.15
If aliens could own land, they also had the right to alienate it. The most
common legal meaning of alienate is to transfer property to another person, usually
by deed. Property that is capable of being transferred to another person is called
alienable, whereas things that cannot be sold or transferred are inalienable. Thus,
the American Declaration of Independence proclaims that our Creator has
endowed us with “certain inalienable rights,” including “life, liberty and the pursuit
of happiness.” You can’t sell your life or liberty to another person, in other words,
but temporarily alienating your liberty to your employer for several hours each
day—even if it limits your pursuit of happiness--appears to be perfectly acceptable.
You can also alienate your affections, transferring them from one person to
another, or cause someone else to do so. In the past, a jilted spouse could sue the
home-wrecker for damages, using the tort of alienation of affection; see
heartbalm statutes.
Alimony and palimony.
Alimony is monetary support given to a spouse during separation or divorce
proceedings, or to a former spouse after a divorce becomes final. Until recent
times, divorce was very difficult to obtain in predominantly Christian countries,
including England, because the church was strongly opposed to it. Yet a wife
might get alimony (or aliment) if her husband neglected her or refused to support
14 Baker, History, at 530-531.
22
her. Eventually, the ecclesiastical courts, which regulated matrimonial matters in
England until fairly recently, granted a type of separation decree in cases of
misconduct (adultery, heresy, etc.) by the husband, in which case an innocent wife
could receive alimony from the husband, even though they remained legally
married.16
Once divorce became readily available, the concept of alimony was
easily extended to former spouses.
Alimony is usually awarded only to spouses, not to unmarried partners.
Enter the concept of palimony, which provides that in some circumstances, pals
(live-in lovers) who split up may receive something akin to alimony. The famous
case in this respect is Marvin v. Marvin, a California decision dating from the
1970s.17
In states that permit it, palimony requires not just that two people
cohabited, but that they also agreed to share their earnings, or that one agreed to
support the other. The court in Marvin held that a contract made by cohabiting
couple regarding mutual support and the like would be enforceable. Oddly, the
right to palimony therefore depends on having engaged in a formality—the making
of a contract—despite the fact that the couple presumably intended their
relationship to remain informal by not marrying.
Both alimony and aliment derive from the Latin verb alere “to nourish,
support,” which has two noun forms: alimonia “nourishment” and alimentum
“food.”
Allegation. See accusation.
Alliteration.
15 Friedman at 174.
16 ELH 556, 562.
17 557 P.2d 106 (1976).
23
Alliteration is not a legal concept per se, but rather a poetic device. Like
rhyme, its original purpose was to help people in preliterate societies remember
things, such as poems or epics. Whereas rhyme depends in the phonetic similarity
of the endings of words, alliteration focuses on the beginnings. It generally
requires that words start with the same vowel or consonant, as in bed and
breakfast, each and every, fame and fortune, rhyme or reason, or safe and sound.18
The law of the early English people, or Anglo-Saxons, was originally
entirely oral, and alliteration was common not only as an aid to memory, but to
signal that something important was taking place. Wills and grants of land were
made orally before witnesses, for instance, and often involved reciting an exact
verbal formula. Thus, a transfer of a land might include the alliterative phrases
mid mete and mid manne “with produce and men” or sake and sokne “with rights
of jurisdiction.”
An Anglo-Saxon alliterative phrase that has survived into modern times is to
have and to hold, which is still found in certain deeds, as well as some marriage
ceremonies. Modern wills typically begin by reciting that the testator is of sound
mind and memory, and then proceed to give away the rest, residue and remainder
of the estate to specified heirs. Contracts often contain a hold harmless clause, and
judges refer to statutes that provide in pertinent part.19
Even if we no longer need
it as a mnemonic crutch, alliteration adds some penache to the putrid prose that
predominates in professional proceedings.
Allocution.
“You have the right to remain silent.” Almost everyone is familiar with this
famous (or infamous?) phrase in the Miranda warning, which usually signals that
18 In many systems, any vowel can alliterate with any other vowel.
24
you are about to go to jail, or that the murder mystery you are watching on
television or in the movies has been solved.
Fewer people know that a criminal defendant also has the right to speak. Of
course, an accused can waive the right to silence and testify at his trial (usually
over the strenuous objections of his lawyer!). If convicted, however, he also has
the right to allocute, that is to say, “speak,” before being sentenced. He can
address the judge and explain why he deserves a lesser punishment. Most judges
expect defendants to apologize and express remorse during their allocution, which
can place those who maintain their innocence, or who plan to appeal, in a
quandary.20
Allocute comes from the Latin prefix ad- “to” plus the verb loqui “to speak”
(pp. locutus), thus to speak to, or address, someone. A related word is
interlocutory, as in an interlocutory motion or an interlocutory appeal, referring to
a motion or appeal made during a trial, rather than before or afterward. The prefix
inter- means “between, during.” A legal maneuver is interlocutory if it is made
during the time that the lawyers are speaking at a trial or, more precisely, between
their speeches. The jurors who have to listen to all this talking often believe that
lawyers speak too much, or that they are overly loquacious.
Ambulatory, preamble, perambulate.
A will is sometimes said to be an ambulatory document, in the sense that the
testator can change it at any time. The message to potential heirs is that they do
not have a right, but merely a hope or expectation, that they will receive
something. Children are sometimes also described as ambulatory, meaning they
19 Tiersma, Legal Language, at 14-15.
20 Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants," 80 N.Y.U. L. Rev.
1449 (2005).
25
can walk. Just as a child can wander off from their parents, an expected
inheritance can walk away from hopeful heirs. The word comes from Latin
ambulare “to walk,” which is related via French to the verb amble, referring to a
type of walking by horses, or strolling by people.
Returning to the legal world, a preamble is an introduction to an act or
statute that explains the background of, and reason for, its enactment. Judges
sometimes find the preamble useful in figuring out what the statute means. A pre-
amble is therefore something that walks or goes before something else.
Another type of walking is perambulation. To perambulate is to walk
through or to tour a place (the prefix per- often means “through”). Although
modern surveying methods have rendered the practice obsolete, it was once
common for government officials to walk through or around a place to determine
its metes and bounds, or boundaries. Following disputes between King Edward I
and his nobles regarding the boundaries of the royal forests (and attendant hunting
rights), the king was forced to agree to a perambulation of the forests by a
commission of three bishops, three earls, and three barons.21
The practice survived
in early America and other former English colonies, where mayors were often
required to periodically perambulate the metes and bounds of townships or cities to
ensure that they were correct.22
Amendment.
An amendment is a change to something, usually intended to improve it. In
legal usage it almost always refers to modifications made to documents. The best-
21 Ramsey, James H. The Dawn of the Constitution or the Reigns of Henry III and Edward I
(A.D. 1216-1307) 467-8 (London: Swan Sonnenschein & Co. 1908). He later reneged. Id. at
503. 22
For example, I Acts and Ordinances of the Governor and Council of the Governor and
26
known examples are amendments to the Constitution.
Amend, related to mend, derives from Latin mendum, a fault or defect, and
the prefex –a (or sometimes ex-) refers to being or moving away from someplace.
Thus, to amend referred to removing a defect, not unlike its current meaning.
Amicus.
An amicus (plural: amici) is a “friend” in Latin. It derives from the Latin
amare “to love.” Law is not usually regarded as particularly friendly, nor are
lawyers, but sometimes it can be useful to be a “friend of the court,” or amicus
curiae. Someone who is not a party to litigation might nonetheless be affected by
the outcome, especially with cases decided in the higher courts, which have the
power to create precedents that can be binding on later courts that address a
similar issue. Business and professional groups, corporations, trade unions, or
public interest organizations may therefore seek to influence the outcome of cases
that arise before the United States Supreme Court, as well as the highest courts of
the states. Such groups can petition to be considered amici, who have the right to
file what is called an amicus brief in a specific case.
In reality, few amici are really “friends” of the court. They typically argue
that one party or the other should win the case, usually by focusing on the broader
implications of the court’s ultimate decision. If anything, they are “friends” of one
of the litigants.
Amnesty.
Amnesty is a declaration by the government that it will not prosecute certain
crimes. Although prosecutors sometimes agree not to prosecute an individual who
Council of New South Wales 259 (Sydney, William John Row 1844).
27
becomes a state’s witness (see accomplice), amnesty normally refers to a more
general pardon that affects specified groups or even the entire population. A tax
amnesty, for instance, might allow people to avoid penalties and criminal charges
if they pay delinquent taxes before a specified deadline. Immigration amnesty
might forgive illegal entry into a country if the immigrants arrived between certain
dates or meet other conditions. Treaties ending a revolt or civil war often contain
an amnesty clause, which provides that the rebels will not be prosecuted for
treason or similar crimes if they lay down their arms.
Amnesty might be considered a type of pardon, but that word is generally
used to refer to grace or forgiveness after someone has been formally convicted.
Amnesty comes from a Greek word, ámnēstos “not remembering” and is
related to amnesia. In essence, the government is saying, “Crime? What crime?
We’ve already forgotten about it.”
And.
And is what linguists call a conjunction, which conjoins or simply joins two
or more words or phrases of the same class (usually adjectives, nouns, or verbs).
In contrast, or is a disjunction, which contrasts two words or phrases. The
concepts seem simple enough, but the reality is actually quite complicated.
One problem is that words conjoined by and (as in A and B) may comprise
two or more separate, but often related, things or concepts. Deeds, for example,
must traditionally be signed, sealed, and delivered. In the past they were first
signed, then a seal was attached, and then they were delivered to the buyer. Three
distinct actions are encompassed in this phrase, so we might call it an additive
conjoined phrase, because each word adds to the meaning.
Other cases of A and B involve idioms or fixed expressions, whose meaning
is no longer simply a matter of conjoining the meanings of A and B. Aid and abet
28
is an example. Suppose that the state wishes to prosecute someone for helping
commit a crime. Is it sufficient to prove that the person aided the perpetrator, or
abetted him? Or must it be shown that the person both aided and abetted the
perpetrator? Actually, aid and abet has become a fixed expression that has
developed a meaning of its own—the two verbs have been fused into a single
concept. The same is true of a cease and desist order. These we can call idiomatic
conjoined phrases.
Finally, there are conjoined phrases where the elements seem to mean
exactly the same thing. An illustration is rest, residue, and remainder. Wills
usually make some specific gifts and then give the rest (or the residue, or the
remainder) of the estate to a person or group. In this context, at least, rest, residue,
and remainder are complete synonyms—they mean exactly the same thing
(everything remaining in the estate after all debts have been paid and all specific
gifts have been fulfilled). Any one of those words would suffice, but American
lawyers almost invariably use all three in exactly that order. Thus, we could refer
to these as redundant conjoined phrases.
One theory is that these redundant phrases took hold at a time (roughly the
twelfth and thirteenth centuries) when England was a bilingual country, with the
upper classes speaking French and the bulk of the population speaking English.
Many people would have been bilingual to some extent. David Mellinkoff, who
was an expert on the history of legal language, pointed out that during this time
bilingual synonyms became fashionable, partly because they sounded good, but
also for clarity—whether you were a French or English speaker, you could
understand at least one of the words in the phrase. Legal expressions like
acknowledge and confess, break and enter, fit and proper, free and clear, goods
and chattels, had and received, mind and memory, will and testament all consist of
an English word followed by a French synonym. The opposite order is
29
occasionally found, as in devise and bequeath or peace and quiet. Eventually, as
Mellinkoff points out, redundant conjoined phrases were perpetuated out of habit.23
Unfortunately, for people unfamiliar with the law it can be difficult to determine if
a phrase that is joined together with and consists of additive, idiomatic, or
redundant conjunction.
Conjoined phrases are popular not just in law, but also in other types of
language, perhaps because they can sound quite elegant. Consider the wedding
vow made by a groom, as prescribed by the Anglican Book of Common Prayer:
I,____, take thee,_____, to my lawful wedded Wife,
to have and to hold from this day forward,
for better for worse,
for richer for poorer,
in sickness and in health,
to love and to cherish,
till death us do part,
according to God's holy ordinance;
and thereto I plight thee my troth.
As Charles Dickens wrote, people taking an oath “enjoy themselves mightily when
they come to several good words in succession, for the expression of one idea; as,
that they utterly detest, abominate, and abjure, and so forth.”24
Anglo-Saxon law.
The earliest known inhabitants of what is now England were Celtic tribes
known collectively as Britons. Little is known of their law and culture. After
Julius Caesar invaded England in 55 B.C., it became part of the Roman Empire.
23 David Mellinkoff, The Language of the Law 121-2 (1963).
30
The situation changed dramatically around 400 A.D., when the Romans,
their empire collapsing, left the island. The Britons had relied on the Roman
legions for security, as famously illustrated by Hadrian’s Wall, so they were now
exposed to attacks from Pictic raiders to the north and Irish to the west. The
Britons therefore decided to “invite” Germanic mercenaries from the continent to
help in their defense (or so the story goes). For whatever reason, small groups of
Angles and Saxons, and probably also Jutes and Frisians, soon arrived, and before
long many of their fellow tribesmen followed. They soon became dominant, and
the territory they now ruled became known as Angle-land, or England. The
Britons were killed, assimilated, or fled to Wales and other areas that remained
Celtic.
The Anglo-Saxons established a number of kingdoms, including
Northumbria, Wessex, and Kent. They were governed by customary law, being
essentially illiterate. Beginning in roughly 600, when Christianity, the Latin
language, and literacy arrived, some of these laws were written down. They
consisted mostly of lists of compensation for injuries. According to the laws of
King Æthelberht of Kent, striking off a person’s thumb required compensation of
twenty shillings, a middle finger cost six shillings, and a little finger, eleven.
Homicide could also be dealt with in this manner, although the amount of
compensation varied according to the rank or status of the victim. Kill a freeman
of the first rank and it would have cost you 80 shillings. The price for a second
rank or third rank killing was 60 and 40 shillings. The cost of lying with the king’s
maiden was 50 shillings, whereas if she was a “grinding slave,” it would be 25.
Failure to pay the fine would entitle the victim, or the victim’s family, to take
24 Charles Dickens, David Copperfield 730 (New York: Dodd, Mead and Co., 1984).
31
revenge.25
A person accused of a violation could try to clear himself by taking an oath,
such as the following (translated into modern English):
In the name of the living God, I owe not to N. sceatt or shilling, or penny, or
penny's worth; but I have discharged to him all that I owed him, so far as our
verbal contracts were at first.
He could lose his case if he stammered or missed a few words.26
It could be
helpful to take along some oath-helpers (usually eleven in number, also called
compurgators) who swore that he was a truthful person. The procedure of
compurgation, also known as wager of law, lasted into the seventeenth century,
although it eventually became a meaningless ritual once litigants began to hire
professional oath-helpers from the streets.27
In more serious matters, defendants were often required to undergo the
ordeal. The ordeal by water, for instance, involved the defendant being tied up and
thrown into a pond. If he was innocent, the water, being pure, would accept him
(in other words, he would sink). If all went well, he would be rescued in time.
Floating would lead to losing the case, with all attendant consequences.28
Although the Anglo-Saxons were ruled by kings, they traditionally governed
themselves communally by means of popular assemblies (sometimes called
moots), which had legislative as well as judicial functions. By the tenth century,
the smaller kingdoms were united into one, and centralized authority increased.
England was divided into shires, or counties, and eventually each shire came to
25 Lisi Oliver, The Beginnings of English Law (2002).
26 J. Laurence Laughlin, The Anglo-Saxon Legal Procedure, in Essays in Anglo-Saxon Law 183,
195 (1905); Tiersma, Legal Language, at 12-13. 27
Baker, History, at 87-88. 28
Id. at 5-6. [baker hsitory]
32
have an official called a reeve, who represented the king.29
This official, the reeve
of the shire, or “shire-reeve,” later came to be known as the sheriff (see sheriffs
and deputies).
Very little Anglo-Saxon law or legal terminology survived into the modern
era. The ordeal, which required the participation of priests and was viewed as a
judgment from God, was abolished in 1215 when the church disavowed it. Oaths
survived into our own times, but even though witnesses still swear an oath, it is
less an appeal to God than a basis for a perjury conviction if you lie. Today you go
to prison, not to hell, for lying under oath.
Interestingly, we still use a system of compensation for injuries, and
indirectly it still favors the rich and powerful over the poor. If you severely injure
the president of a large corporation so that she can no longer work, you will be
liable for her lost wages, which could total millions of dollars a year. If instead
you disable an unemployed manual laborer, you would be liable for far less. Some
things never change.
Animals.
The law regarding animals has traditionally been that pets and domesticated
animals are property, not unlike other types of personal property. Wild animals
have presented more of a problem. If they lived on someone’s land, nested in his
trees, or swam in his pond, they were property of the landowner. But what about
birds flying in the air or fish swimming in a river? They were generally held to
belong to no one, unless someone was able to capture them, in which case they
became that person’s property.30
Once an animal became yours, it was now your responsibility to ensure that
29 Id. at 4-11. [baker, history]
33
it did not endanger other people or their property. In the case of a person who kept
wild animals, the rule developed that the owner was strictly liable for harm that
they caused. It mattered not that the owner might have put the wild animal in a
cage or pen—if it escaped and hurt someone, the owner was liable. Mere
ownership of a wild animal was considered dangerous.31
Pets and domesticated animals can also cause injury, of course, but here the
principle was one of negligence. The owner was liable only if she was careless in
some way. Perhaps the most common injury caused by pets is dog bites. The
principle arose that “every dog gets one free bite.” The first time your dog bites
someone, it might well be a surprise to you. You would therefore not be negligent,
since you would not reasonably be expected to have prevented it. But now you’re
on notice. If it happens again, you’re liable.32
What if someone injures or steals your dog? Because they are property,
animals are not entitled to go to court and file a lawsuit for the damages they might
suffer at human hands. That might seem unfair, but it’s worth noting that dogs and
cats cannot count money or sign checks. The owner, of course, might be entitled
to compensation for the injury or loss.
Until recently, if an animal was injured by the owner, there was little anyone
could do. Animals have no right to sue, and concerned neighbors cannot sue for an
injury to someone else’s property. Laws have recently been adopted to address
this issue, making animal cruelty (especially if done intentionally) a crime.33
Many of the laws on this issue are the result of a growing animal rights
movement. Animals have clearly gained a great deal of protection from cruelty
30 Id. at 429-30. [baker, history]
31 [need citation]
32 [need citation]
33 For instance, see Cal. Pen. Code, § 597.
34
and neglect. However, they do not yet have “rights” that are comparable to human
rights. It is still legal in most places to slaughter animals for meat or to euthanize
feeble pets. Moreover, slavery of animals is almost universally accepted, even by
most animal rights activists. What is a pet, after all?
Answer. See pleas and pleading.
Antitrust. See trust.
Appeals.
The notion that a losing party at trial should be able to appeal the judgment
was a late development in the common law. On rare occasion a losing party might
successfully appeal directly to the king or to parliament. For many centuries,
however, it was possible to challenge a lower court’s decision only if there was an
“error” that was evident from the record of the case. This procedure, which
required a writ of error, largely limited litigants to challenging defects in
procedure, rather than substance.
A systematic procedure for appellate review did not arise in England until
the middle of the nineteenth century, when the Court of Appeal was created. At
about the same time the House of Lords began to assume its modern role as
England’s highest court.34
Several years ago the appellate functions of the House
of Lords were shifted to a newly-created Supreme Court.
Courts of appeal in the United States federal system date from
approximately the same era. Originally, the federal system did not have separate
appellate courts; cases could only be reviewed by the Supreme Court. As litigation
34 Baker, History, at 155-64.
35
in federal courts increased, it became necessary to add courts of appeals, which
happened in 1891. Each judicial circuit (there were nine at the time) received its
own court of appeals (also called circuit courts). After the appeal is decided, such
cases only rarely proceed to the Supreme Court, usually when they involve an
important legal issue about which the circuit courts are divided.35
Most American states likewise started out with one or more types of trial
courts, whose decisions could be appealed to a state supreme court. Starting in the
latter half of the nineteenth century, they began to add intermediate courts of
appeal.36
Today, most states have judicial systems in which cases are initially
heard in trial courts, can be appealed to a separate appellate court, and are subject
to discretionary review by the state’s supreme court.
Appeal entered the language via French from Latin, where the verb
appellare means “to accost, address, appeal to.” In modern French the word can
refer to naming or calling something or someone, including yourself (Je m’appelle
Pierre). An appellation is not merely a name, but can also refer to a winegrowing
region, something that may be legally protected. A wine can only be called
champagne if it comes from the Champagne region in France. If your petition to
use an appellation on your wines is denied, you should consider an appeal.
Arbitration.
As courts become more crowded, alternative means of dispute resolution
have become popular. Arbitration is one of those means. It refers to an informal
trial presided over by a lawyer, retired judge, or someone else selected by the
parties. The parties often represent themselves, but in more important matters they
may be represented by lawyers.
35 Friedman at 290.
36
While you can force someone to appear in court, arbitration is voluntarily
chosen by the parties, at least in theory. In reality, judges often pressure parties in
a lawsuit to try arbitration, in order to avoid the time and effort of a trial. In
addition, large banks and other businesses often require you to sign agreements
that contain arbitration clauses, as a condition of doing business with you. The
clause may require you to resolve any dispute with the bank before an arbitration
panel selected by the bank and at a location chosen by them, which may be quite
distant from where you live. This is often referred to as mandatory arbitration,
and its effect is to deprive you of the right to bring your complaint to a court of
law.37
Arbitration is also increasing as a result of globalization. International trade
disputes can be settled by the courts, but many companies doing business across
borders prefer special panels of international commercial arbitrators, who can settle
disputes fairly quickly and who generally have special expertise in international
trade.
Although it has become more formal recently, arbitration has existed as long
as people have agreed to have a dispute resolved by a respected member of the
community. It is also sometimes used in international law. Popes, for instance,
sometimes attempted to arbitrate disputes between nations. When Spain and
Portugal argued over who had the right to colonize newly-discovered parts of the
world, they appealed to Pope Alexander VI, who created a famous line of
demarcation between the two rivals. Today, most nations take their disputes to the
International Court of Justice in the Netherlands. Yet a country has to submit to
the jurisdiction of the Court, that is to say, it has to agree to have the Court settle
disputes to which it is a party. At bottom, the International Court of Justice, along
36 Id.
37
with other international courts, is a glorified arbitration panel.
The term arbitrate comes from Latin arbiter “arbitrator.” It was a legal term
in Roman law, where parties could agree to have an arbiter settle their dispute.
Any free person could be an arbiter, which obviously excluded slaves.38
Evidently, some Roman slaves must have been well educated, or it would not have
been necessary to exclude them.
Arraign.
After a person is arrested for having committed a crime, she must generally
be taken to a court within a certain amount of time to be arraigned. She appears
before a judge or magistrate, who informs her of the charges against her and who
takes her plea (“guilty” or “not guilty”).
The word was borrowed from Law French arraigner, which--similar to its
current meaning--referred to the process of bringing a prisoner to court to plead to
a charge. The French, in turn, can be traced to the Latin prefix ad- “to” or
sometimes “for,” and ratio, which could mean “account” and also “reason.” Thus,
it refers to giving an account of what you did, or a reason for doing so. And that,
very roughly speaking, is what you do when you enter a plea.
Arrest.
To arrest someone is to detain, seize, or capture him, usually done by a law
enforcement officer for the purpose of starting criminal proceedings against the
arrestee. Police usually need a warrant, or otherwise probable cause to believe that
a felony has been committed. Citizens can also make an arrest, but they are
usually allowed to do so only if the person committed a crime in their presence or
37 [add note to Sup Ct cases upholding the clauses—here or under “boilerplate]
38
if the person actually committed a felony.39
If the police improperly arrest
someone, the remedy is usually to have the person released. Lawsuits against
police officers for improperly arresting someone succeed only in egregious
circumstances. Citizens need to be careful, however, because an improper arrest
may lead to a lawsuit against them for false imprisonment.
Today arrest is used almost exclusively in regard to people. In the past it
had a broader semantic scope and could refer to seizing property also. In fact, in
England it was possible to arrest a judgment, which was a procedure to challenge
(or “seize”) a judgment after trial.40
The word comes from the Latin prefix ad- plus restare, “stop, rest.” After
you are arrested, you are likely to be resting in jail for a while.
Arson.
Although it technically involves merely injury to property, as opposed to
harming people, arson has traditionally been punished quite severely. The offense
originally applied only to the burning of houses and barns or granaries. Until the
thirteenth century it was punished in England with death by burning, in accordance
with the Biblical lex talionis (“eye for eye, tooth for tooth...”). Later the
punishment was hanging, as with other felonies. The reason for the harshness was
that burning a house or barn can potentially kill people and animals, as well as
threatening the dwellings and lives of neighbors of the victim if the fire were to
spread.41
Even today, arson of a dwelling, especially one that is inhabited, is
usually a more serious offense than burning an office building or empty field.
38 Buckland, Roman Law, at 531.
39 See Cal. Pen. Code, § 836-837 for details.
40 Baker, History, at 98-99.
41 Baker, History, at 603-04.
39
The Law French word arson comes from the Latin verb ardere “burn,”
which had the past tense arsi. It produced the medieval Latin noun arsio (stem:
arsion-), which became arson. In classical Latin the noun form of ardere was
ardor, meaning “flame, burning, heat.” It could also be used metaphorically to
refer to passion, which is what ardor means in English today. Someone who has a
passionate (or burning) belief is ardent. Although they derive from the same verb,
ardor is perfectly legal and often admirable, while arson is most assuredly not.
Asportation and transportation.
Both asportation and transportation contain the Latin root port, from
portare “to carry.” They have an obvious connection to words like import and
export. Asportation is an element of the crime of kidnapping, which originally
required that the perpetrator abduct and then move or asport the victim to another
country. The international aspect was eventually dropped, so that today moving
someone a substantial distance usually suffices. It was sometimes also known as
manstealing. The crime of larceny, a type of theft, traditionally also requires
asportation of the stolen goods, although here the movement needs only be a slight
distance.
A different type of carrying or movement takes place with transportation.
In England transportation was a common punishment for crimes. To be exact,
convicts were sometimes pardoned on the condition that they leave the country.
The practice, which sent over 150,000 felons to Australia, ended in 1868.42
Today,
many English criminals would probably be quite happy to be sent to Australia in
lieu of jail or prison, but the government no longer obliges.
A modern incarnation of transportation is the American practice of shipping
42 Baker, History, 589-90.
40
prisoners to another jurisdiction for incarceration. With the rise of longer
sentences in recent years, some states are running out of prison space. To relieve
overcrowding, they sometimes arrange to send prisoners to serve their sentences in
other states, who may have unused prison space that they are happy to rent out.
This appears to be a win-win situation, except for the prisoners, who may end up
far from friends and family.
Assault and battery.
The words assault and battery are very often conjoined into the phrase
assault and battery (see and), but they have separate and distinct meanings.
Roughly, an assault is a threat or an attempt to commit a battery. The victim must
usually fear that a physical injury is imminent. A battery, on the other hand, refers
to actually injuring someone by means of force or violence. Generally it involves
hitting or beating someone, but even a relatively minor touching, if uninvited or
offensive, might suffice. Many people today refer to what are technically batteries
as assaults. Even lawyers and judges sometimes do so.
In some form or the other, the law of assault and battery has existed since
ancient times. In Anglo-Saxon law there were long lists of compensation that had
to be paid to victims who had been assaulted and lost one finger, two fingers, etc.
The worse the injury was, the higher the compensation. Today, many jurisdictions
have different types of assaults and batteries, with varying punishments. In
California, for example, such crimes are categorized by the place where they occur
(e.g., on school or park property), by the nature of the victim (e.g., jurors, members
of the armed forces, sports officials), by the type of attack (e.g., sexual assault) or
according to the instrumentality used (prisoners throwing human excrement at
41
guards, known as “battery by gassing,” or assaulting someone with a firearm).43
Assault comes from Latin ad- “to, at” and saltare “to leap,” thus to leap or
jump at someone. It is shares a root with somersault, which also involves jumping
but is usually legal. Battery is a form of the French verb battre “to beat” (cf. the
English words beat and batter). The French derives from late Latin battuere or
battere “fight,” which is related to the words battle, combat, and debate.
Assignment.
An assignment is not something the average person would wish to receive.
Often it refers to an order to do something, like homework at school or a task at
work. In the law, however, receiving an assignment is usually welcome, because it
refers to a transfer of a right. The assignor transfers a right or power to someone
else, the assignee. A common type of assignment is where a party to a contract
transfers to someone else her right to receive something (money or some
performance) under the agreement. In the past this was often done by writing a
statement of assignment, along with the assignor’s mark, signature, and/or seal, on
the back of the paper or parchment containing the contract. Today, it is generally
done via a separate document.
From Latin ad- “to” and signare, which referred to placing a mark (signum)
or seal on something. See also signed, sealed, and delivered.
Assize. See circuit riding; courts.
Assumpsit.
Assumpsit (meaning “he undertook” in Latin) is a venerable English cause of
43 Cal. Pen. Code, § 240-245.
42
action that originally allowed a person to sue for damages if someone undertook to
perform a task but bungled the job and caused injury in the process (often referred
to as misfeasance). One of the earliest know examples is the Humber Ferry Case
of 1348, which involved a ferryman who had undertaken to transport the plaintiff’s
mare across a river, but who overloaded the ferry to such an extent that the mare
was killed. The cause of action was later extended to nonfeasance: cases where the
defendant undertook to do something and did not perform as promised. A century
or two later, assumpsit started to be used for recovering unpaid debts as well.44
Modern contract law eventually replaced assumpsit for cases involving
breach of an agreement, but in some common law jurisdictions, including
California, assumpsit (more specifically, indebitatus assumpsit) survived as a quick
and convenient debt collection procedure. There are several species of assumpsit,
including claims for “money had and received” and “goods sold and delivered.”
The terminology sounds quite archaic, but the cause of action has survived into the
modern era because people have continued to acquire debts, just as in the middle
ages, and creditors continue to demand payment.
Attainder and corruption of blood.
The U.S. Constitution prohibits the government from passing a bill of
attainder (art. 1, § 9). It also provides that “no attainder of treason shall work
corruption of blood, or forfeiture except during the life of the person attainted” (art.
III, § 3).
Historically, attainder was one of the consequences of being convicted of a
felony or treason. The attainted person lost all civil rights, and his property was
forfeited to the Crown. Another consequence was corruption of blood, which
44 Baker, History, 374-95.
43
meant the attainted person could neither inherit property or a title, nor pass them on
to his children. If you were a blueblood before, your blood had now turned a
common red.
A bill of attainder was an act of Parliament that declared that some specific
person or group of persons would suffer the effects of attainder. They would
effectively have been tried and convicted of treason or a felony by the legislature,
in other words, and might have no opportunity to present a defense. There might
have been some justification for the process when it was used to punish criminals
who had fled the jurisdiction. You might avoid the hangman’s noose by fleeing,
but the government could still confiscate your goods. Yet bills of attainder were
regularly abused to penalize people who were politically unpopular and who had
therefore sought refuge abroad. The forfeiture of property to the Crown gave the
king that much more incentive to seek bills of attainder against his political
opponents. The practice ended in Great Britain at about the same time that it was
banned by the U.S. Constitution.45
The term bill of attainder has come to be somewhat more broadly defined as
a legislative act that applies “either to named individuals or to easily ascertainable
members of a group in such a way as to inflict punishment on them without a
judicial trial.”46
A relatively recent case involved three government employees
who were suspected by the House of Representatives in the 1940s of having
engaged in “subversive activities.” Congress passed a law that the employees
could not be paid their salaries unless they received a special appointment by the
president with Senate approval, something that in those times would not have
happened. The three men were, in other words, singled out for punishment by an
45 Plucknett, Concise History, at 205.
46 United States v. Lovett, 328 U.S. 303, 315 (1946).
44
act of legislation, and the Supreme Court therefore held it unconstitutional.47
Attaint and attainder come from the Latin attingere “to touch, strike”
(composed of ad- “to” and tangere “touch”). It is thus related to attain, in the
sense of touching a goal or reaching an accomplishment. Attaint eventually came
to mean “convict,” which led to its current definition, focusing more on the
consequences of conviction.
Attorneys, lawyers, and shysters.
Nowadays, there is little difference between attorneys and lawyers, at least
in the United States, although there is a perception that being an attorney is more
prestigious than being a lawyer. Thus, lawyers almost always prefer to be called
attorneys. Few members of the legal fraternity identify themselves as lawyers on
their business cards or in their correspondence.
Even though both terms are currently used to refer to people who are
licensed to practice law, traditionally an attorney is someone who is authorized to
engage in legal transactions on behalf of someone else. This is, in fact, the first
definition of the term in Black’s Law Dictionary. Thus, lawyers can be called
attorneys because they represent their clients in litigation and are usually
authorized to sign pleadings for them. But if you authorize your brother the
plumber to sign financial documents for you while you are traveling overseas, your
brother is also an attorney. A lawyer is an attorney at law, while your brother is an
attorney in fact. On the other hand, your brother is a lawyer only if he has a
license to practice law.
Attorney is one of a variety of terms has been used over the centuries to refer
to members of the legal profession. In ancient Rome, experts in the law were
47 Id. at 316.
45
called jurists (or jurisconsults). They gave legal advice to people involved in
lawsuits as well as to judges and magistrates (arguments in court, on the other
hand, were made by oratores, such as Cicero). The jurists also assisted people to
engage in legal transactions, and several of them wrote legal treatises.48
The word
is still used today. In American usage jurist usually refers to a judge, but
internationally it can refer to anyone with legal training, sometimes even law
students.
In England the roots of the legal profession reach down to the thirteenth
century, when the royal courts were established and professional judges were
appointed to staff those courts. Early on, there was a division between attorneys
(from Latin attornatus), who represented clients and acted on their behalf, and
pleaders, who were called narratores in Latin because they spoke or narrated for
their clients. In law French the pleaders were called counters because they would
recount or give an account of what had transpired (from the verb counter “to tell a
tale”).
A special group of pleaders that arose in the fourteenth century were the
serjeants at law. They had exclusive rights to argue before the Court of Common
Pleas, which for an extended period was the busiest of the royal courts in
Westminster. They were organized into a type of guild called the Order of the
Coif. A coif was originally a silk or linen head covering, but it eventually
dwindled down to a small circular patch on the crown of the lawyer’s wig. For
quite some time it was quite an exclusive club, which no doubt explains the
American organization called the Order of the Coif, an honorary society that
admits top law students to membership. The last real serjeant, and thus the last
48 Buckland, at 20-34.
46
true member of the Order of the Coif, died in 1921.49
The division of the legal profession into two major groups has survived in
England and many former English colonies, although the designations and specific
functions of each group have evolved in modern times. One group is the
barristers, or those who are “called to the bar.” Barristers are the lawyers who
wear wigs and function as advocates in court. The other group consists of
solicitors, who solicit the clients, but who also do transactional work and, if
litigation ensues, assist the barrister in preparing the case. Until fairly recently,
being a barrister was substantially more prestigious than being a solicitor, but the
differences between the two groups—both in prestige and function--have started to
fade.50
In the British North American colonies, the division into two classes was
sometimes maintained. New Jersey had an order of serjeants-at-law for a while,
and Massachusetts bestowed the rank of barrister on a number of lawyers. These
distinctions disappeared, so that in the United States today there are only lawyers,
or attorneys, or whatever one prefers to call them.
During colonial times and in the early days of the republic, lawyers of any
kind were few in number and the legal profession was not always held in high
regard. In fact, some colonies forbade lawyers from practicing in their courts.
51
After the revolution, the ranks of lawyers began to grow rapidly, and they have
continued to grow ever since. The public’s antipathy towards lawyers has relaxed
somewhat, although it’s fair to say that many Americans remain ambivalent
towards the profession. Some, like Daniel Webster, as well as the many lawyers
among the founding fathers, were greatly respected. Others were labeled
49 Baker, History, at 179-182.
50 Baker, History, at 177-187.
51 Friedman at 53-59.
47
parasites, ambulance chasers, and shysters.52
The term shyster in particular has been around for some time. Although it’s
become a term of abuse for lawyers generally, it originally referred to lawyers who
hung around prisons, especially the Hall of Justice in New York, popularly known
as the Tombs, in search of clients. Like many slang terms, its origins are not
completely clear. In fact, an entire book has been written on its etymology.53
Its
author, Gerald Leonard Cohen, dismisses most proposed origins as implausible.
Among the rejected theories are that shyster comes from a disreputable New York
lawyer named Scheuster, that it derives from the adjective shy in the sense of
“disreputable,” that it is based on the first syllable of the Shakespearean character
Shylock plus the suffix –ster (a suggestion that at one point was supported by
Cohen), or that it is of Celtic, Gypsy, or Yiddish origin.54
The most plausible theory, elaborated by Cohen and adopted by the Oxford
Dictionary of Etymology, is that the term derives from the German word Scheisser
(someone who defecates), but with the English suffix –ster substituted for the
German agentive suffix –er. The suffix –ster could originally be appended to just
about any occupation, as in seamster or names like Baxter (a baker) and Webster (a
weaver). In modern English, however, it often occurs in words such as huckster,
jokester, and trickster, which have somewhat of a negative connotation, as does
shyster.
The first known use of the word is by a lawyer named Cornelius Terhune,
who during the 1840s had a criminal law practice in the Tombs, a prison in New
York City. Oddly, Terhune grew up in New York speaking Dutch, not German.
Recall that New York was a Dutch colony during the seventeenth century. Is a
52 Id. at 226-235.
53 Gerald Leonard Cohen, Origin of the Term Shyster (1982).
54 Id. at 4-24. [cohen]
48
Dutch etymology possible? The modern Dutch equivalent of German Scheisser is
schijter or schijterd, both of which mean “coward.” In archaic forms of Dutch,
which might still have been spoken in New York at this time, the form schijtster
might have been possible. Although in modern Dutch the suffix –ster is used only
in reference to women, the pronunciation of schijtster is very close to English
shyster.
Phonetically the Dutch explanation makes sense, because it does not require
the substitution of the German suffix –er with the English or Dutch suffix –ster.
Semantically, however, the German theory is more likely. According to
nineteenth-century dictionaries, a Scheisser refers to a worthless or incompetent
person. An Anglicized form of the word (shiser) has been attested in London
criminal slang, which might have migrated (along with the criminals) to the United
States. As Cohen demonstrates, Terhune was quite familiar with the argot of the
Tombs.55
Also interesting is that shyster was first used in reference to incompetent or
worthless lawyers, a usage that was popularized by a New York journalist named
Mike Walsh, whose interview of Terhune produced the first known attestation of
the word. Walsh, a stern critic of the legal fraternity operating in the Tombs,
started using shyster in print with some regularity during the 1840s.56
Over time
its meaning shifted to someone (usually but not always a lawyer) who is cunning
and clever, but in an unethical or unscrupulous manner.
Cohen’s meticulous research seems to have covered most of the bases. The
weak link is showing that Scheisser was current in the New York criminal world at
the time. Did the word shiser actually make its way from the London underworld
to New York? The American Heritage Dictionary opines that this word, in the
55 Id. at 99-101.
49
variant spelling shicer, entered the States via Australian English with the meaning
“unproductive mine or claim.” Or were there German speakers who found
themselves imprisoned in the Tombs and introduced the word directly into
American English?57
Perhaps a Dutch origin is not so unlikely after all.
The origins of the word attorney are likewise not entirely clear. It consists of
the Latin prefix ad- “to, toward” and the verb tornare, which meant “to turn a
lathe.” In French the verb (tourner) was generalized to refer to turning or twisting
more generally, so that in combination with the prefix it could have meant
something like “turn toward.”58
The English attorney is the past participle of the
French word, so roughly speaking an attorney might be someone toward whom a
person turns for legal assistance.
For the origins of lawyer, see law. See also esquire.
56 Id. at 25-46. [cohen]
57 See Lawtalk.
58 What complicates the picture is that in Law French, attorner meant “to attorn,” or “to transfer
services from one lord to another”). Baker, Manual of Law French, at 53.