From: GP McMeel <Gerard.McMeel@bristol.ac.uk>
To: "Lionel Smith, Prof." <lionel.smith@mcgill.ca>
Cc: ODG <obligations@uwo.ca>
Sent: Monday, July 4, 2011 11:43:21 AM
Subject: Re: Use of English in Legal Proceedings

On this there is a classic Milsomian throwaway line in respect of the
residual monopoly of the serjeants in the court of common pleas where he
notes that "as late as the eighteenth century ... certain antique actions
were introduced by the ceremonial mumbling of a count in French."

(Historical Foundations of the Common Law (2nd edn, 1981, p 72).

Gerard McMeel


On Mon, July 4, 2011 3:12 pm, Lionel Smith, Prof. wrote:
> Eugenes extract from Pollock discusses the records of the royal courts,
> kept in Latin until 1731.
> Proceedings in the courtroom, however, were never conducted in Latin. The
> language of common law discourse was, from the earliest days, Law French,
> both in and out of the courtroom. This language, however, became less and
> less current, giving place to English, as the centuries passed. Oral
> argument was conducted in English from the 14C.  However, the part of
> courtroom proceedings that involved the formal oral entry of pleas
> continued to be conducted in Law French (although the pleas were recorded
> in Latin) until the same statute of 1731 abolished this practice,
> requiring both pleading and records to be in English. Even in the 17C, Law
> French was considered to be the only language in which technical legal
> concepts could be accurately expressed. This is why many legal texts (law
> reports and legal analysis) were written in Law French long after people
> had stopped using it as a language of oral discourse. Law French was not
> used in other English courts (Chancery, church courts, local courts,
> admiralty etc).
> My suggestions for literature:
> J.H. Baker, Le Brickbat Que Narrowly Mist (1984), 100 L.Q.R. 544 (a
> short note)
> J.H. Baker, The Three Languages of English Law (1998), 43 McGill L.J. 5
> (a full study, available in HeinOnline).
>
> Lionel Smith
>
>
> On 02-07-11 20:50 , "Volokh, Eugene" <VOLOKH@law.ucla.edu> wrote:
>
>              Sir Frederick Pollock reports,
> http://oll.libertyfund.org/simple.php?id=2313,
>
> Latin as a legal language. During the century that follows, Latin keeps
> its preeminence, and when, under Henry II. and his sons, the time comes
> for the regular enrolment of all the kings acts and of all the judgments
> of his court, Latin becomes the language of our voluminous official and
> judicial records. From this position it is not dislodged until the year
> 1731, when it gives place to English. It were needless to say that long
> before that date both French and English had been used for some very
> solemn, perhaps the solemnest legal purposes; but seemingly we may lay
> down some such rule as this, namely, that if a series of records goes back
> as far as the twelfth or the first half of the thirteenth century, it will
> until the reign of George II. be a series of Latin records. It is only in
> the newer classes of authoritative documents that either English or French
> has an opportunity of asserting its claims. French becomes the language of
> the privy seal, while Latin remains the language of the great seal. French
> expels Latin and English expels French from the parliament rolls and the
> statute rolls, but these rolls are new in Edward I.s day. In particular,
> Latin remains the language in which judicial proceedings are formally
> recorded, even though they be the proceedings of petty courts. In Charles
> I.s day the fact that the Star Chamber has no proper Latin roll can be
> used as a proof that it is an upstart.
>
>
> From: Peter Radan [mailto:peter.radan@mq.edu.au]
> Sent: Saturday, July 02, 2011 5:39 PM
> To: obligations@uwo.ca
> Subject: Use of English in Legal Proceedings
>
> This may be a little off the mark for this group, but could anybody assist
> with the following enquiry.
>
>
>
> I recently read in a history of the eighteenth century that there was , to
> quote, 'an act of 1731 [which] insisted that legal proceedings should be
> conducted in English'.
>
>
>
> Can anyone point me to relevant literature dealing with history of the
> language used in the courts in England?
>
>
>
> Peter Radan
>
>


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