CHAPTER TY An Expanded Definition of the Language of the Law 1 What # includes ‘The languoge of the law, as described in this book, is the customary Janguage used by lawyers in chese common law jurisdictions where English is the official language. It includes distinctive words, mean- ings, phrases, and modes of expression, Tt also includes certain man crisis of composition not exclusive with the profession but prevalent enough to have formed a fixed sssociation. 2 Choice of terminology In the first decade of the century Sir William Holdsworth wrote of “the language, or rather languages, of the law.” stressing a polyglot origin.’ Others have emphasized the relationship between language and the Iaw.? The language of the law is a convenient Iebel for a speech pattern with a separate identity.® Law language is sometimes, used here as a shortener, law words for individual words ia the lan guage of the law, “These expressions ate preferred to legal parlance,! Tegal English and legal language,® for the reason that legal isso fre- 1 gflddavent a Hoey of Fath Lae 478 (3 1983) 2 Williams, “Language and the Law’ (ps. 15), 011-0. few TL, 27, 293, 984 (1945), 08 1.0. Rev. a (1040), Pilbsel, Language andthe Law (1940) *Caias, “Language of Jurisprudence.” in Ansien, ed. Language 232 (1951); Frank, Lato and the Modert Mind 22 (6h print. tv. 1940); 2 Hokiwort, A Misery of English La 477 (Od ed 193), Duty The Story of Bug 200 (1932), 1 Pollock and Mailand, The History of English Lav 80, (2a cd 1868); Rodell Woo unto You, Layer! 7 (1030); Wine, The Chief Souree of Engh Legal Histon (1085), Lavery. “The Language of the Law" (pts. 12), 7 ABA. 217 (Giga), 8 nay 360 (1022). 4 Pes, The Story of English 119 (1952). 2 Reich, The tf eadable Write 198 (949); Cowes, Flat Wonde 6 (2048); Risons “Oar Obesete Legal Engl" 99 NVL-J. 1960 (1998) Flesch, The An of Pain Tall 86 (1946); J Lat, Feeryday Law Made Sire 164 (1054), Pe, The Story of English 200, 21 (1982). 1 olloek and Maiti, ‘he itsory of Engh Law 80,88 (22 ed, 1608); Rodell, Wee unto You, Law tyr! 181 (1399)4 WHAT 15 TIE LANGUAGE OF THE LAW? quently and properly used to mean lawful as to cause confusion at the outset, Legal lingo,’ legal jargon,* and legalese® are rejected on the additional grounds of being too sweepingly opprcbrious and also too narrow. ‘These objections apply equally to legalistic jargon’® and argot of the law." Swifts acid phrase was “a peculiar Cant and Jargon of their own, that no other Mortal can understand.” ! Bentham had a bag of phrases, applied with uncomplimentary impartiality: law jargon,’® lawyers’ ‘cant, lewoyers language,” flash language. Opposed to these is the language of jurisprudence," dignified but confining. The language of ‘the law partakes of some ofthe essence of all ofthese diverse character- izations. 8, The official language: English in England ‘The speech of lawyers is conditioned not alone by the Taw, but also by the prevailing language of their environment, It is the coincidence ‘of dominant common law and dominant English that forms the setting for the lenguage of the law. In England — the most ancfent common law jurisdiction — English 4s the offciel language. ‘Today that has a tautological ring, It was not always so. The history of the emergence of English is traced in Part ‘Two. Customary usage alone could suffice to make English official for England, Yet deinition has not been left completely to chance utter- ance. Legslation on the subject spans seven centuries. Most of these laws have beea repealed. Two statutes survive. One expressly re- Opperietoe, ext Lng,” 2 Ameo Speech 12 (108); Thurber, The wander 098 (1951 Tpenthomione 119 (1843); Cowers, Plain Werde 8 (1048). * Cooper, Efective Lagat Writing 16 (1953), Liter, “Legal Weting in Taw Practice? St j83, Calif 38 31 (1966). * ‘e Yunter, The Language of Audit Ropete 27 (2057) Ht Mencken, The American Language S34 (4th ed. 1936), 12 Smif, Calter Trove 27 (Crowned. 1947), 127 Deathan, Work 60 (Dowsing 198). 547 Bentham, Works 282 (Bowring ed. 1863). 287 Bentham, Works 280 (Bowring ed. 1863) se eat Wake 282 (Boring 1880). 5 2 Gains, “Langage of leripredeace” te Acshon, a, Language 232 (1087 'nSatete of Pending, 1862, 36 ew: IL, 15, ropeaed by State Law Re ose Ae los 20 i 12 At fir ge ook of he La Into English, 25 November 1&0, m2 dete and Orfinancer of the Incr 4455 (1511) psa by Seat (4060) 13° Gar, Proceedings in Costs of Juice, 1781, Geo. Ue. 36, cepealed by Chit Preceuze Acts Repeal Act, 1879, 42.4 4 Vit, «00, Curtain Wales ad Chester, 1793, 8 Gon Ty 14 sepened iby Gi Frocudie Acts Repea! Ack, 1879, 42 6 43 Vite 39.AN. EXPANDED DEFINITION 5 quires Crown waits and incidental papors to be in Fnglish!? The thor requires non British sailors on British ships to have a knowledge of English.2? 4. The official language: English in the United Stotes generally English is also the offcial language in the mest populous of common law jurisdictions, the United States, Special situations exist in Lox siana and New Mexico (Section 6). In all other states the tradition of English usage her beon reinforced by 4 host of constitutional or statutory provisions. In one or more jurisdictions, English is the lan- goage of statutes, public documents,!? courts? process, teaching? textbools,2* legal newspspers,2* legal notices, recording, public meetings.29 It is taught in grade schools* and Amerieanization 3 Crown Wats tobe in English, 1868, 31 & €2 Viet. ¢, 101, «90. 2 Prohibition of Engigemert of Seamen 100, 6 kee, VIi 6 4 21 CAL Conat art IN 24, Hawall Rew. Laws, tty 1, $18 (10) Const, Sched, §18; Mich, Const, art, XVL,§6; NJ. Stat An, §52:364 (1955). “Ky. Rev. Sat. {446.000 (1928); Wes, Stat. 5.68 (1959 #8 Alaska Comp: Laws Ann. 52112 (1040); Ack, Ste. §25-108 (1047), Cal. Gonst. ar IV. $24: Cal. CW, Proc. Cole $185: Colo. Rev. Sit. An. 697-192 (1853); Tiako'Code Aus. $1162) (1545); Const. Sched, {18} Mich. Coast of 2008 are, 6 Mo. Ans Sta, $4TOOH (TOG); Monk. Re, Cones Ay {905.1104 (i647). Now ev, Sta $1080. (1087). NWT Rw. St Ann. §500:1 G55) vuak Cade Avo 84-22 1989); Ve Sly tt 4, 15, SON C90, We. Siat, $290.18 (1959. 3 Alnabs Comp. Lawe Ann. $521. (1040); Atk Sst. §28108; Mo. Ana. Stat {§476.080 (1949); NH. Tev. Ste Ann. §509°1 (1055); Ve Sut, tt dye. 15, $oid (1980), Wis, Stat $9568 (1090). 8 Ala. Coda, it 52, §200(c) and §250 (191); Conn. Can. Stat, Rov. $20.17 (1958); Guam Gov. Code $11,800 (1952): Havait Rew. Laws {40:3 (2955)s ova Code 42605 (i958), Ken. Gen, Sit, Ann, (72-1102 (189); Mich, Const, (of 1005, are. 1, JO; Mis Star An. (22010, shod 2, $195.07 (1060), NY. ue Lay $$204, par, 9: NC. Gen. Stat. 6115-198 (Supp. 1955); ND. Cont Cade §15-47-08 (1560); Okle. Const, at, $5; Rl. Gen. Laws Asn, $1619 (1958); S.D, Code $15.9913 (Supp. 1860); Tex. Peu, Cave, a 208 (1852); Wash. Fev (Covie (28.05.010 (1051) W. Va. Code, c 18, ar 2.61782 (161) 2 Minn, Stat. Ana. $1200, sud. 3, §195.07 (1960); NA. Bae. Law §9904, pa, 2; Tes, Ren. Coe, art 288 (1993) iia. Slat 2001 {1050}; tne. Ano. Stat. §2-4707 (1849) and §2-807 Jova Code {0181 (1958), Min Sit, Ans, (391.02, suid. 1/1917). se0 ND, Cont, Cae §16:06-42 (1980); 5:B. Code 8.508 (Supp. 1960); Va, Coce Ann. $8.81 (1050). led. Ama. Stat §2-4707 (1949) and §2-807 (1993); Iowa Cole $618.1 (1958); Minn. Stat, Ann, §891.02, subd. 5. (1DI7); Neb. Rev. Stat (95-593 (1043); Wis ‘sat §924-50" (2650), Monnet 6. Baltimore, 106 Bt. 484, 403 (07) PNT, Stat Ann. §s7:1-2 (1940); NAY. Real Prop. Law §333, par 2; Oa Stat tt 26, 128 (10 Neb, Her. Stat §28-741 (1943), A Me, Rew, Sut Ann. «41, $99 (1954); Mass, Ann. Laws, ¢ ZL. L, ond see also §18 (1988); Mss. Gade at, §o016-02(a) and (5) (1853), ORo Kew. Code6 WHAT 1S THE LANCUAGE OF THE Law? chassos.% Tt qualifos voters jurors, public offcials%® and drivers ol vehicles” Ithasboon declared “oficial.” ‘The federal government joins in. “An unilerstanding of the English Tanguage” ie « condition of naturalization. English is the court and statute language of the District of Columbia? ‘Tho list and citations here aro not exhaustive. By theso and more circuitous paths we are reminded that Ameria ie an English «peaking country. Ia Cuam, we put it bluntly: nclh ithe ele language of Guam, anal pers enpleyed Tegovemsentof Guus hal speak osly Soelan daring wonton bout, GiskFlnunges inst nt be pecs eee fe fea erp” In Hawaii, with somewhat more Snes Whenever there is found fo exist any radieal endl irreconcilable difer- cence between the English anil Hawaiian version of any laws of the Tex tory, the English version shall be held binding.) If our history, literatare, and common speech ever leit the matter in doubt, American legislators have assured the primacy of English. 5. The offiial lenguago: Ie i Amorican im Illinois? Anominal aberration occurs in Illinois, ‘The state constitution makes English the exclusive medium for “all official writings’ and proceed- An $9980 (Poge’s, 2990), RI, Gen, Laws Arm. {18102 (1056); SC. Code SalcAl1 1952, Te Cote Ann. 49-1003 1058 3 Ar Mev, Sat Aa, {16104 (1959), Mase Amn, Laws, o, €9, (9 (1959); 1, Gens Lanny An, §4L0S0-, 120-8 (1060); ge lat haa 81-06 (1957) Ela, Gant, amen. MCL Dee 18,9951). DA Cont. af 1807, at amended aut y $2 Gu Cale Arm §2:708 (1048); Me. Cont ae Mt {Uy Ne. ew. Sak Ranged (20 (1b8ihs Mas Const arse ae RX (18ST); A Cnet at GEN Gen. Sat 188-98 (Sopp. 1055): Gre Const art Ue 42 an a VIL é 8 cak Gir, toe, Gade $108 Havals Mer. Laws $221-1(@) (1989); Ya. Ann. su, GBSOE {I8th) (HO) Ab. Rew Sut 25 2601/3988) 3 Ae. Const aft 3, par Sy Az: Rew Sat, Ana. §G1td02, 38.201 (1955) Me, Contec ati Gis es, Comte aren at (1884) Sac iat Code 19804, SE Motor Garon Salsy Regs, Pat 1 (1.29), 15.0 Cade, p 708 (1858) cham Cove Code $4000 (1952); Neb, Lave 1910-1021, c, 61 (Apel 14 1901), eld unenatuiona n Nebraska Dsret of Peangetcd Lateron Synod ‘of snark Mekal, 362°U.5 404 | 1020) se also Moyer e, Nebraso 96 is 0 (18) Benet Eatin, 108 Ma. AEH, 498 (1807 aUSca, (ues ose) BD Gate Ane $1901, 18.902 (1961). 2 Guay Govt Code §300 1952) Si itawat Ree, Laws 9118 8AN EXPANDED DEFINITION 7 ings,t? and a later statute reads: “The offcial language of the State of Mlinois shall be known hereafter as the ‘American’ lnguage."*® This is neither the first nor the last attempt to place a domestic Inbel on our version of the English language." The Illinois courts take a matter-of- fact rather than chauvinistic view, and maintain that for this purpose “English” and “American” mean thesame thing:* ‘There are of course numerous differences between the British and American brands of English.® ‘The bond of the common law results in minimizing these differences in law language usage. For example, the English barrister (our coustroom lawyer) is called to the bar (admitted to practice). The English solicitor (for the most office lawyer) has clients who coneey or transfer by deed but do not merely deed as in America.4? An English eourt hands a decision out rather than down’* ‘The English Drief is a written case summary for the guidance of a barrister, the American brief for the guidance of the court. In the language of the law, as in the language generally, discussion of the differences between American and Britsh usage seeves to em- phasize the essential similarity. Despite the many differences of usage, and recurrent political differences before and since the Revolutionary Wer, English continues to be recognized as the basic and official tan- guage of the United States, including Hino 2M Const, Sched 18 4 Act of June 19, 1923, M. Ana. Stat, 6 127, $177 (Smite-Hurd, 1955). st Mencken ‘The’ American Language’ 1-84 ‘(th et. 1436); Netcke Anes Langue Supent 1155 (148), Co, Ey eg of the Expresions “Amerie Largege” and “Langue Amériaine,”” 75 Ne Language Notes 485-288 (1960) bed w Cty of Chea. 2481, Are. 45,958 (1929), Cue Mira Motor Comp, 285 Ml App, $53. 551 (2952) “Sc, for extape eoectins i: Part, Ditienary of Americanisms (Ath o 1816}; Detimery of American Pnglhe (Craigie and ulbcre ed. 1558-1944), Evins and Evans, A Dicionary of Cortemposory American Usige (1857: Farwer. ‘Amoricaniams (1889); Fowler, A Dictionary of Modem English Usage (3 00 1907); Horw, Diesonary of Moder Amerncan Usage (2d ec. L943}; Methens, A, A Dictionary of Americonians (1051); Mencken, The Americ Language (ihe. 1936}, Supplement T (1945), Supplement 11 (148): Nichohen, & Dace onary of American english Usage (0ST Paneiege, A Dictonary of Sang cud Unconcentional Engel (ith ode 1951), Parteslge, A Dietionon of the Under: world (1950): Partridge, Slang Today ond Yestordiy (3a ed, 1930); Pickering, A Vocabulary (1816); Schiele De Vere, Americontons (1872)-,Thonaton, an Amer Gen Gloiory (10S). Compare Re’ La Manguice Eootwen's Aypliation, (1006) PATER. 497, 498, 499 (Ch. D.), { Osfond English Dictionary, uoter decd. © Monckeny The American Langsenge 946 (4th ed 3690). © Black's Law Dictionary 260 (Hthed. 1851), the8 WHAT 15 THE LANGUAGE OF THE LAW? 6. The oficial language: Variations Throughout the American domain there are legal acknowledgments of the fact of multiingval origins. For example, though English is the offical language of instruction (Section 4), special provision is ‘made for iastruction in Hawaii (in Hawaii),* Italian and Portu- ‘guese (in Rhode Island), and Spanish (in Texas! and Rhode Is- land).** Yet these are passing nods of courtesy cempared to the situa- tion elsewhere English is required in the United States District Court for Puerto Rico, but “In all departments of the Commonwealth Government and inall the courts ofthis island, and in all public offces the English Ian- guage and the Spanish language shall be used indiscriminately . ..”®¢ English is permissive for Puerto Rico pleadings, but those in writing ‘ay be required to have Spanish copies, and oral pleadings “should be ‘made through an interpreter.” 5? Spanish and French antecedents have left their mark on Louisiana, On the law side, there are elements of common law present and absent, and important element's from the Code Napoleon. ‘The language picture is Ikewise mixed, Following the Louisiana Purchase, English ‘was made official * and in certain respects this remains so today. Eng- lish is the official schoo! language.*® the Ianguage for articles of in- corporation®™ and legal notices? 2 qualification for efvil jurors! an jury commissioners."* A sentence must be recorded in English.** But a voter need only be literate and be registered in English or his “mother tongue.” ® A corporate name may be in any language as Jong as writ: 2 Menckeo, The American Language Supplement 1136-145 (1945). 8 await Rev. Lawes $403 (1955). 2211 Gen. Laws Ana. §16.22.8 (1960) 159 Tex. Pea. Cade, ar. 288 (192). ‘9 RL Ges. Laws Ans. §1622-8 (1960). {8 Poato Rican Foral Relations Act 2, 1 PR Laws Ann, 168 (3954) SEPR Tavs dan §51 (1954), Sr PI Laws Ana, $194 (1954). {881 MoNtahon, Louidana Practice §1 (1030); 14 Kneyclopaodla Britnnica 428 (84) ee Wignie, A" Boorana of the Words Leg Sytoms 1055 Thbrary 314 Fnopelopacdia Britannica 428 (1948), 2 La. Const art, 12, 12 a1 La Rev. Sit. (13:8, 12-108 (1950). 2a Mey. Sut, 41:52, 49.201, 49-203, 49.204, 47.2181 (1950). 62 Ta. Rew. Sut 115:9041(2) (15D). ‘Ta, ev. Sut. $13:9038 (1990). Lat en Sit 153528 (1990). 81a, Row Slt 18:S1(3) (1950), opyrighted mAN EXPANDED DEFINITION 9 ten in “English” letters or charactors? The surveyor goneral “shall ppotsece a thorough knowledge of the English, French, and Spanish Jan. ‘guages.’ & A catchall Louisiana statute provides: Any act or contract made or executed in the French language is as seas erase nent he enh gigs eg ease spe Be In New Mexico, 2 predominantly common law state,"* English is of the official languages. It shares honors with Spanish. The original New Mexico constitution, effective January 6, 1912, provided that for the first twenty years all laws were to be published in both English and Spanish, After that it was left up to the legislature."* The 1915 codi fication of New Mextco law was the first and last published in both lan guages.’ But Spanish is still a required subject io grammar schoo! unless there 4s parental objection." Ballots must be printed in English and Spanish. Publications of proceedings of subdivisions of the state (city counells, school boards, etc.) are required to be published only once. Formerly this was to be in English, but since 1919 ia English alone where the populace is 73 per eent Englist-spesking, in Spanish alone where the same percentage is Spanish-speaking, and in both lan guages where the percentage using either language is “between” 25 and 75 per cent. 7. Language of the law net English ‘The great mass of the language used by lawyers ts ordinary Finglish, Reciprocally, cectain items of the language of the law, e.g., habeas ‘corpus, prime facte (Section 11), plaintif, defendant (Section 12), are now accepted as English,'® culprit even invented by the law and aban- oned by it to nontechnieal English."" An assortment of general Eng: lish idiom also tells ts tale of a people long accustomed to settling their or La, Rev, Stat, $$12:40 F), 12:104(A) (1950) Ta’ Rew. Stat 450273 (1050) 8° La, Rex. Stat. $151 (1950), 0 NAL Stat Ata, §21-15 (1058). ANIM. Cony at XX, 512 12Poldersaar, Manual for Efectve New Mexico Legal Research £1 (1955); ccampare Mencken, The American Language Supplanent 1 lal (1945), and. 3 ‘American Notes & Queries 173 (1048). TEN Stat. Ana. $79-17-2 (1959), TEN, Sit, Ana, §3.5-7(Niath) (1958), FENM, Sit An, {10-2411 (1353). 18 Soo algo MeKrigt, Inglsh Words and Their Backerona 79 (1998) 77 Blount, ALae-Detionary ond Clessany (1117) 4 Blackstone, Commenter +399-°SHO (Jones od, 1916); Blacks Law Dictionary (48h ed. 1981).10 WHAT 1S THE LANGUAGE OF THE LAW? quarrels hy ltigation, 0g, laughed out of court, hold no brief for, ete® But itis a commonplace that that which gives the language of the Jaw its distinctive davor something other than the King’s o the com- moner’s English, Laymen are cortain that law language is not English, Statutes mako the distinction offal, ‘On matters of construction, astotute reads: ‘Words and phrase shall be construed aesording to the common and approved the ofthe anguage. Technical wores and phrase, and Hse ‘which have acquired a pocoiarand appropriate meaning the law shal be coustmed sconrding to such peculiar and sppreprate meaning’ ‘When sch phraseology is used in a state where English i the oficial Janguage (Section 4), the antithesis complete. Frequently iti not loft to inference. A typfeel stem for judicial aotice i: ‘The trus signifeance ofall English words end phrases, and ofall Tegal eqpressons On legal papers and courtroom talk: Aa wit pres rig nd rc ary cut lalla he English language, except that the proper and keown namo of process and technizal words may be expressed in the language heretofore and row commonly used: ard shall be made owt on paper: parchment, 12 1 fai and loible character, in words at longth and not abbrovited, but such avers a at mow comply wed ip the Bog neve mney be wed; and numbers may be expressed by Arubie Sgues oF Foran numerals, n the exstonary way ~ ‘Though English isthe ofticl nguage (Sections 8, 4), the language of the law isnot offeially English Sco L. P. Smith, Words and Idioms 218 (58h e 1943); Simon, “English Idioms from the Law" (pts. 1), 16 CQ, Rev. 426-48, especialy 425.490, aad 283.05 (1960 “Ast: Rew. Slt, Ann, §1-818 (1955). CAL Civ. Code 413, Kan. Gen. Sat. Ann, §77-201, par. 2 (1949); Ky. Rev. “Gkigns0( 4} (1956); Me. Res. Sta. Aes, «10, 492 4 (1954); Min. Stat ‘Aum, Yo420811) (2987) Miss Cade Avan $702 (198), NIM. Ren. Sats Anne $21:2 (1955): NU. Slat, Ane, 11-1 (L957) CAL Civ. Proc. Code §1875(2); Cuam Code Cis. Poo §1875(1- Aik, Stat. §23:108 (1047); sonar language ta Mo. Ann. Stat, §470.050 (1948); Wis Stat. §25818 (1955); ste too Ve Stat, te. 8c. G1, 61265 (1047).2 WHAT 18 THE LANGUAGE OF THE LAW? law dictionary! — is one readily understood by the lawyer, ana incom- prehensible to most nomprofessionals. This listis by no means exhaus- tive, Itis ilustative, The words are of day-to-day use in the practices ection law rit sien tnstor aig assignees svcd cane Gorsderation pant to prominor or detent to promiee Coumtrport —— Geplieste af document covenant Selled contract anise tolease dtomr {ofea demarer sould Signed ed dslivered ind sipmture Incrumere Tegal document lenere deur athorsing one to act ‘manor coplyer ‘nation Feral request for action by a court ofcourse stamatiraf ight pat Fsmecnnsctngor tating pane ie pacing prey form of lasting requnrt reed to cout breterts this legal document provided Word of intrdctin toa proviso purchase Toscqeite realty by means other than descent i) entioned befne sore Seve tga soe ive Tegal papers cil Scaled contract roma ‘state inland cine Eco or authority, ain “by vito of” without prejudice without oss of any rights 10, Frequent use of Old and Middle English words once in we but (Old English is the mame given to that form of the English language current in England before the Norman Conquest and down to about 1100. (Sections 28:38.) Middle English covers the period 1100 to about 1500, (Sections 52-53.) Modern English is said to date from about 1500* ‘These are useful approximations, and authorities differ oa the dates:* Clearly, a slassifeation of Modern English that includes 4 Blac’s Law Dictionary (4th o, 1951) 2 Welnters New Intrntional Dictonay Lea-bexrvi (2d 0. 1894); 1 Oxford Eaglih Diconerg sax (1903); Seller, The Teferson Anglo-Sazon Gremmar and PS Svetg, Jepeten, Groh ond State of he Engh Language We (And 8 Pan & eon of the gn Langage (he TD) inader“Tistery ofthe English Languages 8 Encylopeedia Brteantea 556 (1948). opyrighted mCHARACTERISTICS 13 Elizabethan must be handled with care in the twentieth century. Under any classification, the general English of today leans heavily on Old and Micidle English. But the language of the law retains ma- merous Old and Middle English words and meanings which have long since pasted out of general usage. Some of these same archaic words are preserved in other ancient specilties such as sailing and preaching, The old and essential lew sense of master, ie., one having control, is still used at sea: s0 t00 afore, The ministry, like the law, has never ceased torely on the literary usages of the King James Bible, eg, there- fore theredf.# wherefore.* whosoever.' Most non-lawyers are exposed to these archaisms on infrequent occasions. For the lawyer they are daily bread, Here isa fair sampling: ‘aforesaid at fortutth Jere words: horeafter, hercin, hereof heretsfore, herewith let, a8 in the law tautology, without Iet er hindrance said and such as adjectives thence and thenceforth there words: theresbout, theceafter, thereat, thereby, therefor, there- fore, therein, thereon, thereto, theretofoe, thereupon, therewith where words, especialy whereas nsed in recitals, and whereby witness, in the sense of testimony by signature, oith, ete, as in “In ‘witness whereof, Ihave set my hand ete” titresseth® meaning to fernith formal evidence of something, the Old English present indicative, third person singulac verb form. 11. Frequent use of Latin words and phrases One of the significant features of the English language is its mass borrowing from other languages:*® The bulk of that borrovring is from Latin directly —or indirectly through French.! (Section 58.) Latin has traditionally been recommended for students of English, scmetimes asa basis for advanced learning, sometimes as a means of knowing Ayer 2:23; Eos 85, 8Gen 210 Matt. 4:31. Mat, 2h SOstond Engloh Dictonery, under witness (x) ‘= Websta’s New Intemational Dictbnary (2d ed, 194), under archai; Bader, ‘The Loom of Laxguage 259 (Hogben ed 1844); Sweet, The Stutents Dictionary of Ando Saxe ot (1803). 1 Websters Now International Dictionary lexi (28 ed. 1954). 3 Webuters New Intzmctonal Dictionary lexvl (24 ed, 1984); Whitney, The Life and Growth of Language 9 (1875), aed sco also MeKright, Engoh Words ‘and Thete Beekground 116-117 (1923), and Jespessex, Growth and Structure of ‘the English Languoge, pars 118, $2, 39, and ¢.6 (Anchor, Mth ed. 1955), SET Howe, funce liver Wendell tfctmes 0 (1957), jelfrson, The Complete Jefferson 668 (Padover ed. 1943): Williston, Life and Case 28, 5, 87, 4 C1940). opyrighted mMu WHAT 1 THE LANGUAGE OF THE LAW? English, and sometimes as a sort of brainsfood."* It has been especially ‘urged upon law students! Indispensable or not, Latin still erowds the standard law dictionaries ** Some of the Latin found there has become an accepted part of the English language, e.g, affdacit, alias, alibi, bona fide, proviso,* guorum.27 Courts sometimes explicitly say so, as for instance with Fabeas compus,'* prime facie,* and versus A large part of law dic- tionary Latin js not in active use. But whether it is rejected, or ac- cepted as English, or permitted in practice as an exception to the rule requiring use of English (Section 7), there remains enough of distinc tive Latin in the working law vocabulary to make its own mark on the language of the law. Some examples are: abintio ex pute lox fork ad damnum x post facto Tec lect ates ariets evrlve ere ler lot comtractus cation face verba rmalum inse calloguiuen news taken prokbitum cram bie forma pauperis andi cenpes delet a ivitumn renee coun testrento fn pur delicto Imobila sequentur exo (6) fn pil materia persona As bonis non hn povconam stats matandie Cy ne Bprnperons " isnoncura ro per nalleprsego iced vaniis)™ are pon) on incluso wnivsest_ alla bona excontracty ‘cchsioalteits nunc pro tine exact snnvendo paris 22 Doberty ad Cooper, Werd Herage x (1929); se, eter tthe edo, “How ‘About Latin Ne NeCowan 7 A.A 218 (1951). "Sony ad Googe Ward Herge 24 (108) Jackson, Late Latin, perce (1807); Falecom, The Complete feferion LOST (Belov ed. 19495; Latin for Layers preface (24 e193"). “S'halontng, Low Dictonary with Pronuitiens (28 ed. 1048); Rll’ Law Dictionany (Sto 1051): Bowsers Le Dieionary and Concie Encylopedia (Galsow Bh ee 14) Jw gon. edy ‘he Diouontry of English Lau 1059), Mosley and Witeloys Lew Disionary (Sih. 1990) Wharkon’s En Lesion ged a8 Bekaight, English Word and Thete Beckground 116 (1028) 1 Osjnd Bt Dest om 163923) 18See People, Jonson, 147 Cal. App, 24 417,419 (1950), 8 Beeplee. Carmone, 8) Ca. App. 13, 18 (1928); Ladeckv, City of Chicago, 249 App. 585, 398 1928) Zo Sth. Rater 25 N38, 599 (2852).(CHARACTERISTICS 15 rereapita amas respondeat siperice per qued ‘quifecitper alium facit —retraxit perstirpes perse’ Sui generis Proforma quid proquo su juts Prot ee vente pro tanto es gestao vismjor fqaantum merait rer ipsa laguitur (r4.) Quantum valebant res jodtoata 12. Use of French words not in the general vocabulary A vast section of the language of the law stems from French soarcos. (Chapter 1X.) Writing in 1895, Pollock and Maitland Listed ae French words basie to the law vocabulary (even apart from the land law) setion damage jes plead Sgreement debt Jeagneat pledge appeal Gecloration arene police aires tenant justice Possession arson ‘demand fates prions issue cscent ny pepery Storey dovivo in poche Battery essemest reariage Feprieve sin evidence iisdemeanour robbery ci eset (iisdemesnor) Sentence contin jlo money terran constables ghole (pills) ote Sander contact gent abgation suit course! fuarintee pan tore cant mln putes been cout ie Partner trespass Covenant detent puyment verdict crime infant print ‘They also Tsted burglar, clerk, conviction, master, and ward. But lator scholorship eredits conviction directly to Latin clerk to Old English via Latin®® (Section 33), splits the credits on ward hetween Old English and Prench,*# and suggests a three-way division of honors for master and burglar between Old English, Latin, and French? The Pollock and Maitland list eannot now be considered the exclu- sive property of lawyers. With technical nicety or othenwive, a major= 211 Pollock and Maidan, The Hictory oj Eaglith Lave 81 (28 ed. 1808): soe alse Cain “Langunge of Juriprudence in Aushon, ed, Language 998, 245-246 O57 "2 Oxford English Dictionary 2 Osfond Engluh Dictonarg: Medieval Latin Word Lit (1994), under cleric} alter. "NOsford Englsh Dictiorary ® Orford Lugish Dictomaty; Medeoel Latte Werd-Lat (A994), under burg’16 WHAT 18 THE LANGUAGE OF THE LAW? ity of those words ore in daily use im the press, along with such others as allege, attorney general, decree, mortgnge. There is still a substantial group of French words— mostly Old French and Anglo-Norman—which has continued as the special province of lawyers. This is law French, distinct alike from English words of French origin and from modem French. (Section 62.) Some of these words which continue to give even educated laymen a sense of not-belonging are: lenin thesense of to trnser hone inaction femur stoprel opel in pats cq fod snple snd fe tal, which Uke etorney gona retsin the French “werd oder lakes ‘motes and bounds yes fan FoI sin jtgmont ra Soin some ef except (Seton 9} ‘cio sn aed snr (Sion 9) ‘yeas tne talogy name and ste ‘Sete dire (Section 60) “ (Of less frequent use in the practice, but sill virile, are eestué que trust, de son tor. en ventre sa mere and pur autre vie, 18, The use of terms of art A term of artis a technical word with a specific meaning? Every specialty has its terms of art, whether it be burlesque (bump:? grind ®), horsemanship (curb bit. snafle bit), or the law. ‘The une initiated may not understand 2 term of art even while recognizing it as the mark of a specialty. ‘The Catholic layman may not understand Latin or the Jew Hebrew. yet each knows that these are the official lan- ‘guages of his chosen prayers. 254 blackstone, Conmentaney “341 (Jones @, 1910); Aideman, “Fhe Fweach Language in Engish and Amora Taw," 14 Ala. Law 56, 364-962 (1055 “Language ofthe Law," 220 Lot 209, 291 (1955) "Am, Jer, Plealing and Pract Roms $:1059 (1957), 2nWebstrs Now Iteration! Dictionary (24 1 1094), AL Words and Phrases (perm, 2d, 194), Sapp. 1e62). "SiMincken, The Rreroon Lesguege Supplement 1 3 (1943). SeManlon, Phe Amorian Leckwge Spionent 11004 (1999). ted m(CHARACTERISTICS W Not everything that hat the sound of tho law is « term of art. A lange group of law words fails to qualify beeause not specific. For example, cause of action is unadulterated law talk, incomprohensible to laymen and often to lawyers. ‘The first words categorizing the ex pression in Black's Lato Dictionory aro: “A ‘causa of action’ may mean ‘one thing for one parpose and something different for another." Tt not a matter of one oF two well-defined meanings as with libel, which may be a tort or a frst pleading in sdmiralty, Cause of action ie in daily use and in daily controversy. But, despite endloss dispute as lo the application of toms of art to particular situations, there are numerout words which lawyers use as a medium of epecifie and shorthand communication. Some law terms of art are: agency fslony raster and servant aliss summons fatitious defendant monthe-to-mosth tenancy ‘abt garnishment negotiable instrument ‘amicus curiae abeas corpue or erder appeal injunction rovaticn ball judicial notice plainti certiorari Juridiction inrem prayer common counts laches Principal end murety comperative negligence Iandlord and tenant publicston of summons contributory negligence Iastclesr chaneo—remittitur delendant Iesseo res judicata demurrer lesser included offense rule in Shelley's Case aicturn Inseor special appearance yy trast Totter patent sare docs feminent domain Thelant tort expane Tele voir dive foo simple Iifetonant fee tad mandamus 14. Use of argot Argot is sometimes used interchangeably with cant, jargon, and slang, especially of the underworld sort. (Section 2) In its better sense argot is a specialized vocsbulary that is common to any group. 131 Black's Lave Dictionary 210 (4th 08, 1951), ‘326 Words and Phrases 5-88 (penn. ed. 1940), 198-141 (Supp. 1962); see and compare Cath, Handbook of the Lave of Code Pleading §19 (3928), and Pomeruy, Cade Remedies (412,119 (Sh. 1033), ‘SS Wehsters New Intereattonal Dicthonary (20 ed, 1994); Osford English Dic ‘onary (1993). Buss and Evans, A Dictonery of Contemporary American Usage 40 (1957): Mencken, The American Largucge 855 (ith ed. 1936), See cowteary view 42 A Dictionary of Modern fnglish Usage 307 (3d ed, 105°), and Nichokon, ionary of American-English Usige 297 (1951).18 WHAT 18 THE LANGUAGE OF THE LAW? Apart from its unsavory background, ergot still enmnot be used to describe the whole of the languaze of the law. For argot bas the con- notation of a language of communication within the group, whether cr not deliberately designed to exclude the stranger."* The lnguage of the law, sometimes even a particular word, has « dual aspect. Law- ryers use language that is intended to speak to lawyers and laymen, as in contracts, jury instructions, notices, and even laws. Lawyers also ‘use language that is intended to speak primarily to each other, in pleadings, opinions, articles, books, argument, the whole gamat of legal papers, and in the day-to-day negotiation and discussion that is the lawyer’ life. In this latter aspect, a portion of the language of the Jaw isargot, a “professional language.” # ‘The other characteristics of the language of the Taw (Sections 9, 10, 11, 12, 13, 15, 16, 17) individually or in combination often result in argot. For example, lawyers talking to other Iawyers (on or off the bbench) use the Old French demur as « term of art with an uncommon meaning. At other times argot stands as an independent classification of law phraseology insufficiently technical or specific to qualify as a term of art. For example, the agot of the courtroom: Funse Lawvex: What did he sy? Wravess 1 tld Min woulda and he assed Seoowe Lawwesnt Move to strike for pupore of making an objpcton upon! Granted. That may sll o outs nontesponsive and a con. clusion, ‘Mr. Reporer read the witness the question, (The question freed.) Whee Hesail tht Pd beter or " Secown Lawwen: Objection. Extrajudiial statements not subject to Finer Lawrna: Offered only to show state of mind June: Overaled. Received for that lnited purpose ‘Asa conversational form, law argot is @ code divorced from the com- mon speech, For exxmple: Fusr Lawyer: Wil you stipulate that the compleint may be amended to negative lches? ‘Secon Lawsen: Unnecotoary. This ir at law, not equity. My ob: jection is nat laches, bot that the pleading affirmatively shows the bar of the statute, 38 Mencken, The American Lan Ath od, 1938). soccairas, “Language of juprudsnee,” in Anshen, cd, Language 282, 240 (ass7)CHARACTERISTICS 19 Rinse Lawren: Your client has been served Sccoxn Liwven: But only hy pablication, and that won't support 2 personal judgment, Some further examples of law argot are Stent hen ct sea dese, lomo, mina ete Mee ae poe vale sient Be senmieg Soman Beat ae estaain eae aM cae os “3 wc cme report a ee Beet te Beta sgh Putin 15. Frequent uso of formal words ‘There is a ceremonial quality to the language of the Isw achieved by the use of “formal words’ ®—werds set apart from the language of street or locker room. The style has been described as solemn, mys- tical, sacerdotal,® dignified, and “assiduously stilted.” *° Whatever its Proper name, the effect is derived from the use of formal words: un- accustomed words (Sections 9-14), the polite expressions of former days (approach the bench instead of come here}, euphemisms (he deceased and deceden!), undomesticated Latin and French (arrested in flagrante delicto instead of caught in the act), and a variety of eir- cumlocutions that make the commonplace exalted. These expressions run throughout the language of the law. For example: In pleadings — Comes naw the plaintit ‘Wherefore, defendant prays that plaintiff take nething for such cther and further relief as to the court may Seem meet and just In judgments — 314 Californie Word, Phemvs, and Maxims 344 (1680): Al Words and Phreses 212-213 (permed. 1940, Supp. 1902); se also Cal, Ci, Coe §1492, ‘8 Fowier, A Dictonery of Modern English rage 189 (Sd ed. 1931); Nicholson, A Dintionary af Amorian English Unege 0 (1989) © Funes, “Our Obsolete Legal Engish,” 99 NY LJ. 1964 (1998). ‘Foal, “Geodbye to Lavt Reviews,” 23 Va, L, Rew. 98, 42 (1996)20 WHAT 18 THE LANGUAGE OF THE LAW? Now Therefore, Its Ordered, Adjudged, and Decreed. Tn court — fear ye, nar ve, heer ye Your Honor ray plese the court plat rete In contracts — whereas time is of tho essence from tie beginning of the world, boi remembered now all nen by these presents Inaffdavite — Feng tt dy srorn, depose ad yt Fea pone sth et Eebroine's nat ple Inoaths — T do solemnly swear (or affirm) that I will fithfully execate the Olice of Presdent ofthe United States . « the truth, the whole trth, and nothing but the truth, sohelp you Coa Other miscellaneous examples of formal words in the law are: 1 [insead of “before” Ebsequent (instead of after”) Sunghsto the bowd = Simon for hein Set dow forbesing fol te satire ou preecee verce Ue eopete vel Al Te Whon These Presents Come, Greetings 16. Detberate we of words and expressions with fexble meanings Popular speech i seldom precise. ‘There it a reluctance to take posidon from which there is no retreat, “Down that ways a pice,” “ar to middlin, “ebb,” “well see” ace expressive of the easygoing vaguenes of daily conversation 42.05 Const, ant T, Lavery, “The Language of the Law.” § AB.AJ. 209, 21 (1822), ah Ee of Stal 49 Cal. 24128, 158 (1957) (senting epiion: 60 C. 3cranacrenesrics a ‘The same tendency in the language of the law is noteworthy for ‘these reasons: ‘The language of the law is sometimes characterized as one of “ex- ‘traordinary precision,” *° and “unambiguous.” It is also singled out for special condermation as “equivocal” * and full of “weasel words.” * Lawyers customarily choose their words more carefully than non- lawyers. And itis characteristic of a large part of the selection that there is a deliberate choice of the fexible—a “peculiarly plastic ter- minology.” ‘This is to be distinguished from the inept, the inadvertent, and the unexpected. The last, for example, may result ‘rom the vagary of in- terpretation of language in the courts, where by circumstance the clear suddenly becomes unclear, a horse becames a vehicle, and white mnay mean black. Interpretation is discussed in Section 129, precision in Section 17 and Chapter XHI, darity in Section 20 and Chapter XV. Here is a fair sample of law words and phrases whieh are often used. because they are flexible or despite their flexibility about lear and eonvineing few ‘abuse of discretion slostly erroneous Few adeqnate ‘commerce ross Adequate couse comparabie oss profit ‘aderjuate ccmpensation completion ial ‘adequate consideration convenient improper Adequate remedy at desire in conjunction with “0 Aovbtess in regard to and/or due care inadequate and others ue process incidental appacently excentve Incervvmience approximately existing intention as soon #8 possible expenses intozicated available extraordinary si would seem average compensation see care extraordinary services clean and neat extreme eniely k ‘condition fairdiasion malice “2Cains “Langmige of Turisprudence:” i= Anchen, ed. Language 259, 258 cigs}. $8 Gower, Fain Words 6 (1945) 45 Raner, “Our Obwolete Lagal Eaglsh,” 9 NJ. 1984 (1938), WwChise, The Tyrenny of Words {24 (1938); Frauk, Law oud the Modem Mind 27 (6th tev. Print 1939), WTMaine, Ancient Law 368 (now 4d, 1930), $8 Coarad 8. Dilinger, 176 Ken. 296, 295-209 (1954), ‘0Sce Benefit! Fee © Casully In, Co. ts Kutt Hike & Co. 46 Cal. 2d S17, 507 (1056), sod sve Iftchel »- Howry, 18 Ch D. 18), end copectally argument a 188 (1880); see also Swift, Gulliver's Travels 298 (Crown ed. 1947).2 WHAT [8 THE LANGUAGE OF THE LAW? sun vee tsa on Foto cael ae ae cooper By Be accu Rema ms seo, Se 2 whee a 7 se ee ce nee ant te ree, eee mee rie a oo a eres ne cet les mr ad vai on cavers, gee seen she nha gees = au eee a os a ‘ought severe wmseund ae So ie at Eiieatte Eo mete te we eon ee =. rete ahiee Ee ee ate Tees 17, Attempts at exireme precision Opposing themselves to “the inherent vagueness of language.” lawyers make many attempts at precision of expression. Their lan- [guage ostays precision by choice of partienlar words and phrases, and by devices of composition such as numbering, lettering, indexing, and even symbotie logie** In addition to the nse of terms of art (Section 18), there is a recur- rent choice of sbsolutes: all, none, perpetuity, never, unavoidable, last clear chonce, unbroken, uniform, ierevocable, impossible, outright, wherever, whoever ‘There are phrases designed to keep the restricted restricted, eg. wien, “Language and the Law," 61 LO. Kev. 179, 192 (1995). len, "Syme Logie: A Ricow-edged Tool for Drelting ond Tatrprotng Documents,” 68 Yale 1.J-888 (1951); compare Summers, “A Note on Syine bole Logic and tho Law,” 15}. Legal ld 486 (1561(CHARACTERISTICS 38 and no more, and no ather purpose, shall not constitute a waiver, shall not be deemed a consent. ‘Opposed, there are phrases intended to kesp the broad broad, e.g, including, but not limited to, or other similar or dissimilar causes, shall not be deemed to limit, witheut prejudice, nothing contained herein shall ‘There is the use of multiple specification of logal devices, factual situation, qualifications, applications, oxcoptions, rights, grievances, 66. this very sentence, or a formbook genoral release: ‘Tosllto whem thew presnts stall come or ay come — Gretna Know yest Jpn af nn for al i omsiertin of ello, seo ahha pod by “nn da by theve presets formyl my bets exentors. bre adniniestor, rome, release aed forever eiachage ------y of =., his, exertors, an adi sseators, of ane far any sal il manner of action or actions, eae ate aun son tn dn dy sa of rey, eon ecko sand, bills spovties, covenants, contacts, conknvesi, agreement rome, Usais daonses, eden, a ce mands whatsoever flaw or equity, whieh gant him Ihave ba, ne Inve, or which ny. hein, Coceutny or administers, levesftr ex, atl or may hav fr or by renson af any mation cam, or thing what foeves Lom the boganiog ofthe word to he day ofthe date ofthese presents excepting scl sto Tnvnines whereot et ‘There are provisions made against partial invalidity, The facts which together add up to notice are detailed, e.g, on deposit in the United States mail registered and posiage prepaid. Otten a spreiel definition section of a contract or statute will in so many words define terms for the particular cccasion, e.g, words in the singular include the plural and vice versa®® words wed in the masculine gender include the feminine and neuter. Explicit defnition is simply a particular ap- plication of the law’s major approach to precision, ie., am attempt to pput a brand on the mavericks of specch. Successful or not, the at- ‘tempts at extreme precision serve to distinguish the language of the law from the common tongue (see Chapter XII) BBNichols, Cyelopedia af Legal Form 8 273 (1830) rntalest Sales Act §491(18) (1957)CHAPTER I11 Mannerisms of the Language of the Law 18. Nomenopoly on mannerisms The nive characterities of the language of the law (Sections 0.17) are of wnivertal application tothe profession. Taken as a group, those haracterstics mark off the language of the law from ordinary speech ‘nd from othor specialized speech. In addition, widoly associated with the language of the law are mannerisms, o which lawyers ean claim neither priority nor monopoly. ‘The profession's association with these mannerisms is sifciently ancient and saffefently close to justify con- sidering them a part ofthe languege of the law. "The language of the Inwhas a trong tendency tobe: (1) Wordy (Section 19) (2) Unclear (Seetion 20) (3) Pompous (Section 21) (4) Dall (Section £2) 19. Werdy 1a parchments then, age a his Bld, hoo drasros Assurances, bigge. as stossd evil awes, So huge, that men (in our tines forwerdnesse) ‘Ave Fathers of ehe Church for waftngiesie." John Donne said it that way in the sixteenth century. With more or less politeness, others have said the same thing: “Words multiplied for the Purpose,” “a viscous sea of verbiage,” * repetitious* verbose, prolix:! The Oid English word states it best ofall: lawyers are wordy. Tt takes them a long time to ge to the point. Regardless of the reason, 3 Jol Donne: & Selection of His Poetry 104 (Penguin od 1952) 2Swilt, Gulliver Travels 36 (Ciows bd. 1947) 3 Chase, The Tyranny of Worde 87 (2088). 4 Bvans, The Spoor of Spooks 265 (1954), ‘SEavery "Ube Language of the Lav,” 7 AB.AJ. 277 (192). opyrighted m-MANNERISMS 25 the language of the law e2 customarily written uses too many worde, ‘Here is what fe meant by wordy: For sy saul aamaand ets remove entirely and completly remove? il iat wiland testament * roid {aly ulland wd Tithout hindrance thon! ator indiana document triton document Snstroment Site nsement 12 Por the parties agree use a whole batch of words: Now Therefore, in consideration of the premises, and the represonta- tions, warranties, covenants and undectalings of the parties hereinafter set forth, and for other good and valuable consideritions, the pertior ‘agree among themselves 38 follows: Other words samplings are in Section 20 and Chapter XIV. 20, Unclear ‘The language of the law is often unclear — plain “muddy.” This is not to say that the language is devoid of meaning. Simply that sf there is any meaning, it is hard to Bnd, It is puzzling not merely to the untutored nonlawyer. Puzzlement extends to bar and bench, Here is the typical long seateace, loaded with more detail than one ‘an conveniently carry Whea, without any shoving to the contrary, it affirmatively appeas, fom the reeord t the [nah of & criminal case op an indictment for a felony punishable by confinesnent in the penitentiary fora perkal of less thaw life foyprisonent, that the tsal cout did not comply with the hae bitaal eximinal stetute then in effect which expressly requited tht b= Sentence of life impuisoomsent yay be lawfully imposed i¢ must mited, o¢ by the juty found, thee she pesos envied oa the Lie Aivtinent ad previously heon twive senened in the United States to the penitentiary, « judgment imposing a senteree of hfe iteprisonment upon the convict, bused upon the ststute, void, to the extent that © Schaub Ine. e. Depertment of Alcoholic Beverage Comite, 183 Ex, App. 24 £858,960 (1357) "Nieto, Cyciopedia of Legal Forms 8.1415 (1936). Cooper Effoctce Legel Writing 100, 208 (1053). Villans, “Language ane the Law," 61 LQ. Hex. 7, 16 (1945), 39 Dxjord engisk Detionary (1938), under it sb 1 Phasinet A Conese Mistory of the Common Law 818 (6ts ed. 1956). 32Cal Gir, Bos Cade $48, 13 Lindey, Motion Petare Agreomants Annotated 145 (1947), M Lavery, "The Language of the Lew," 7 ADA) 277 (2021)26 WHAT IS THE LANGUAGE OF THE LAW? sxocods the maximum eentence far the particular offense charged in the indictment for lack of jurisdiction of the tral court to render if, and the iffect cf that part of the sentence of life imprisonment, in excess of the marina Seatence for such particular offense will be avoided and: fr enforeoment prevented i a habeas eorpu proceeding One hundred seventy.six words is by no means a record? But a sentence may be unclear without breaking any records for word count. A shorter, more awkward sentence may be just as iauddy: Although the will itself was silent as to who would take if the son predeceased the mother, she not having at the time of the son's death emried, and the son kaving isswe at his death, which event oecarted, thisomission by sel, i tho will only, ennnot aid the sox and defeat the testators dear intention that the son should take only in the event be survived the death or remarriage of his mother, Ltla Kiester™ A tortured metaphor willalso help distract the reader: ‘The plant argues that the Fourdation ts the aller ego of Mucfad den and that ts corporate form should be pierced. It is entirely settled that « corporate form will be penetrated by equity where it used as & shield lehind which injustice is sought to be perpetrated or where the carporate cloak 1s used s.a subterfuge to justify wrong. ‘There are times when the law is explained to non-lawyers. How do you tell « jury about contributory negligence? In one way or another ‘the jurors must be told: “IE Mrs, Smith's injury was caused partly by Mr. Jones's negligence and partly by her own negligence, she cannot recover.” Here isa typical way of saying this in a form jury instruc- tion: os ints at uty iene a eg ene Tati caesar haces cn re ero ene oe Eerie doped peek cel geenon hep fe ii nd SP ee ome eh og oe Shoe ge at at wh cen guy of oy ora at Sohn eg sent org hres of wy 15 Sito ox re, Browning », Ther, 149 W. Va. 850, $98 (1957) 18 For example, Int Nev. Code of 1954, §1521(a); Cal. Rev. & Tax, Code gso2ia) 1 Kistor« Kite, 3 Oho Op. 24 481, 401 (CP. Montgoeiery County, 1057). 1 Maefuddon & Mocfedden, 46 N.] Super 242 247-218 (1551) "Richardson, Floside Jory Insrudtions {1204 (1054), a partial quote frm Shane & Saunders, 29 Fla 35, 800 (1097).“MANNERISMS ar ‘The language of the law is full of “long sentences, awkward con structions, and Fezzy.avuzzy words” ® The result is often nothing lest hana failure of communication. (See Chapter XV.) 21, Pompous In or out of the Taw, pompous"! language giver an air of importance ont of proportion to the substance of what is aid, Cardozo called the style “magisterial”#2 Tnoongruity is its essence, self-esteem its badge. ‘Pomposity takes many shapes, Ona of the most common isthe plati- tude in weighty trappings. As for instance, the remark of a federal judge addrossing law students: “I give it to you as my considered opin- jon, gentlemen, that this is a government of checks and balances”? Tn the language of the law, thought content is frequently cloaked in words evoking overawed reipect: solenm, supreme, superior, wisdom, wisely, fundamental. ‘The effect is heightened when contrary opinion is dismissed with a damning mere, absurd, subvert, unconscionable ‘The pompous style appesrs in argument of counsel: My client's con- tention is obviously correct, clearly justified, overwhelmingly corrabo- rated. Your claim is entirely unsupported, unsound on its face, pate ently fraudulent, and trifes with justice. Pompasity also erps up in statutes. For example: “Law is the solemn expression of the will of the supreme power of the State.” Mast often it drapes the opinions of appellate courts. Here are a few excerpts: ‘The people in their wisdom have given appellant beard the exelasive power to determine under wha! cieunstancey it or fy aot contrary 1 Dublie welfare snel morals to issue liquor leone ‘This would be to overthrow, in fact, what was established in theory; and ‘would Seem, atfist view, an absurdity too gross to be hsisted on Nevertheless, this court in a very special sense is charged with the duty of construing: and upholding the Constitution, and in the dis ‘charge of that important dury, it ever must be ser eo see that a doubt- ful precedent be not extended by mere analogy to a diferent cate # the 20 Roca, “Goodhye to Law Hevinws" 93 Va. L. Rew. 38,29 (1998); soe ako Rodel Wo ania You, Langer 189 (1890) “Sseadaby, “Beware of Eochew sed Avod Pompous Prolity and Matec ngs putts 18] 8 Cali 5 (3041) "2 Clndoes, Lewand Leerature 10 (181). 3 Access at tarvand Law Stool, Cambridge, Mas, 1959 EN Gn an ee 2 Altadena Community Church ¢, State Board of Equalization, 108 Cal. 24.98, 108 (108) me Pe ‘Marbury Mado, Cea 197,177 (AS, 1803).38 WHAT Is THE LANGUAGE OF THE LAW? result will be to weaken or subvert what it conceives to be a principle ofthe Fundamental law of the and** From one long opinion pumped full of self-righteousness, here is a ‘working glossary of pomposity, waiting only for the pin prick:?® ‘anomalous sult apparent ‘ean be 10 question cemnrot be doubted teunrot in reason be conceived feannot in reason be sid dear dearly expressed ‘early pointed out dently sults tonchisve Force ofthe view wo have stated Aispose of the argument ‘disposed of the rewsoning advanced ‘Ssposes ofthe contention ‘excluded in urmistakable language Eiacy ead exposed inrevoesbly concluded by previous decisions itfollows ums follow thorefore follows would fallow rade more manifest no Tonger apen to question rucand controling privciples ‘The dissent by Mr. Justice Holmes began: Ido not suppose that civilization will come to en end whichever way. isc is dee" Bat as the reasoning Which preva in the mind af the maprity does not canvince me, and as I think that the decision aot only severses« previous wellconsidered decision of this court but is ely t9 cause eaneidershle disaster to innocent persons and to astard- ize children hitherto suppesed to be the ofipring of lawful marriage, 1 think it proper toexpress my views.2° 22, Dull ‘Through some professional eyes, a railroad timetable may seen spirited. "The consensus would judge it dull. Sufficient interest of reader or listener may infuse life into the most lackluster speech. Yet even granting intense professional interest, top much of the law and Aiscussion about the law is expressed in language bereft of vitel juices. #1 Dimickw, Schiele, 203108, 474, «85 (1935). #8 Haddock , Haddock, 201 U.S. $2 (1903). % Heddoch e. Haddock, 201 US. 562, 623 (1008) (disex). ted m“MANNERISMS 29 It is dull, Wordiness contributes to dullness, as witness the opinion and jury instruction in Section 20, or this one sexteace from an opin- ‘The reason for denying an appeal in the latter case isnot becauso the crder on the motion to vacate is not within the terms af seeton 963 Of the code lowing appeals, for itinay bo, and indeed, an order refwsing to saat al adaent in i very nat a mei oder made ater ent, but because it would be virualy allowing two appeals from Thosame raling, and would, in sone esses, have te eFect oF extending the time for appealing contrary Wo the Intent of the stature2® Pompous language (Section 21) also contributes to dullness. The com- bination of wordiness, lack of clarity, and pomposity will almost cer- tainly produce dullness, and it is avoidable. In 1897, as still today, the rule in Shelley's Case was not a laughing matter. Yet in the course of ‘an extended discussion ofthe rule for the benefit of the bar, Lord Miac- naghten found it possible to say: ‘That was putting the onsen s nutshell Butt i one thing to pot a cas like She thing to keep it there The fundamental and still litigated distinction betwoen intentional and negligent wrongs has been expressed by Holmes in eleven lively words: «» even a dog distinguishes between boing stumbled over and bain kicked? * . * Te is sometimes assumed that aa important subject deserves ponder cvs treatment, and thir dread of inappropriate levity has saddled the lave with a weight of equally inappropriate dues. 2 cororan © Cty of Los Angler, 153 Ca, App. 24 82, 655 (1957) Von Grates 0 Fowweal, (1851) 4.6. 655, 67 2 Holmes, The Camoon Law 3 (1881) opyrighted m