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Saturday, February 22, 2003

Column: Latin

As every schoolboy knows:

Latin is a language as dead as dead can be;
First it killed the Romans, and now it’s killing me.

But if Latin is so dead, how come we still say Marbury versus Madison? And Brown versus Board of Education? Why use the Latin “versus” when the English “against” would work just as well?

And while we’re at it: why, in 21st Century America, does the court recognize a lawyer pro hac vice, instead of “for this case” and a non-lawyer litigant pro se instead of “for himself?”

The answer, logically enough, is because William the Conqueror won the Battle of Hastings in 1066. Because of that battle, the Normans took over England and imposed Latin as a common language of record keeping, just as it had been in their native France.

1066 And All That

Unlike Old English – a jumble of dialects – Latin was already an ancient and completely standardized language by 1066. By using Latin, King William made sure that his statutes and writs could be understood by every literate subject, from Canterbury to York. As is often the case with people who conquer entire nations, William was a bit of control freak.

Thanks to King William, Latin became the definitive language of English law for several centuries. The English even made up new Latin words to fit their legal concepts. The Anglo-Saxon morder, for example, was Latinized to murdrum; or, as we say today, “murder.”

Even when English lawyers were allowed to write in their own language, they continued to use Latin out of habit. And since lawyers tend to be a wee bit resistant to change, the Latin of King William is still used by lawyers throughout the English-speaking world a mere – oh, 937 years – after the Norman Conquest.

The most remarkable thing about this story is that nobody seems the least bit surprised by the fact that lawyers continue to use Latin. Imagine the consternation if any other profession tried to get away with something like that. What if, say, physicians decided to speak in ancient Greek because that was the language of Hippocrates? Or if accountants still used Roman numerals simply because they worked so well for William the Conqueror? Imagine how cumbersome it would be to fill out your Form MXLIV (1044).

Everyday Latin

And yet, lawyers speak Latin every single day. They seek testimony by subpoena (under penalty), and say that a contract is void ab initio (from the beginning), and draft wills with bequests per stirpes (according to family branch).

Lawyers make motions ex parte and in limine. They construe documents contra proferentem (against person who seeks to use it) and by reference to various canons of construction, including, inter alia (!), expressio unius, exclusio alterius (one meaning excludes the others) and in pari materia (in an analogous case).

I could go on, ad nauseam. In fact, I think I will. In criminal cases, prosecutors must prove actus reus (the criminal act) and mens rea (guilty mind). Fraudsters are said to have scienter (knowledge – same root as “science”). Prisoners can bring a petition for habeas corpus (that you have the body). A superfluous pronouncement by a court is obiter dictum – literally, “stated by the way.”

A defendant caught in flagrante delicto (the act of committing a crime, from the Latin delictum, or “crime”) might point to another person as being in pari delicto (equally at fault), or might simply plead nolo contendere (I don’t contest it). Inmates in state prisons are allowed exercise every day – perhaps in recognition of that old chestnut: mens rea in corpore sano (“a guilty mind in a sound body”).

Lawyers even use Latin to refer to themselves. The professional title “esquire” comes from the Latin scutarius (shield bearer) and is basically the same word as “squire” (as in “Squire, my horse!”). The term “attorney” comes from the Latin torno, meaning literally, to turn on a lathe. Try that next time somebody asks you what you do for a living.

A dead language? Perhaps, but trying to practice law without a basic grasp of Latin is murdrum.

An Amicus in Need is an Amicus Indeed

This is not to deny that there are some distinct advantages to knowing Latin. For starters, it comes in handy when traveling to Latin America. (I’m joking, of course!)

But seriously: a real advantage of using Latin is that it gives every lawyer a link with the ancient origins of the profession. Consider a recent pronouncement of the Ninth Circuit, in which the court denied the motion of the U.S. Senate to “intervene” in a case, but invited the Senate to appear as “amicus curiae.” Here, the terminology of the court is so ancient that Julius Caesar would probably have understood it (well, except for a few English bits).

Caesar would have been familiar with amicus curiae (friend of the court) – in ancient Rome, these were judicially appointed lawyers who were required to instruct the court on difficult points of law. The idea of “intervening,” would have made sense, since that is simply an English rendering of the Latin intervenire (to come in). And of course, Caesar would have known all about the “Senate” (Senatus) – which means literally a “council of elders” (think Strom Thurmond).

But it’s unlikely that Caesar would have agreed with the Ninth Circuit that the Senate makes a good “friend,” since it was a bunch of Roman senators who stabbed him to death. Indeed, if Caesar were around today, he might ask the Ninth Circuit: with amici like these, who needs adversarii?

We can also see a link with the past when lawyers take on asylum cases, which they often do pro bono (short for pro bono publico – for the public good). Asylum comes from the Roman Empire’s rule over the Greek city-states. The Romans adopted the Greek tradition of allowing fugitives to take sanctuary in various religious temples – in Greek, the practice was known as asylon (literally “cannot be seized”), which was Latinized to asylum.

Bad Latin

The quantity of Latin in legal writing is beyond dispute; the quality of the Latin is more doubtful. After centuries of being mangled by people who don’t really speak Latin, Legal Latin is not exactly the language of Virgil and Cicero. Instead, Legal Latin has been described as “barbarous,” “corrupt,” and even as “dog Latin,” a phrase that is not entirely fair to dogs.

Consider the phrase “inchoate,” which comes directly from the Latin incohatus or “incomplete.” The word has been applied to describe a lien that has not yet been perfected, that is, “an inchoate lien.” Lawyers, assuming that inchoate means “not choate,” promptly started referring to fully perfected liens as “choate liens.”

The “choate lien doctrine” may be good law, but it is terrible Latin. That’s because the “in” at the beginning of “inchoate” is not a negative; rather, it’s like the “in” in incoming (incohatus is simply the noun form of the verb incoho (to begin)). And so, referring to a perfected lien as “choate” is a little like referring to a sober person as “toxicated” or, perhaps, “ebriated.”

Latin in the U.S.A.

Latin had a difficult time gaining a foothold in American law. In the 17th Century, the Puritan settlers regarded Latin as a “heathenish” tongue, and emblematic of all that they had left behind in Europe. Latin was, like, sooo 16th Century.

In an effort to purge Latin from everyday life, the courts of colonial Massachusetts did something that nobody in England had, evidently, thought of doing for 600 years: translate the common law summons into English. The effect of this reform on the early Massachusetts bar must have been bracing – witch burnings are said to have doubled.

But then a curious thing happened. In the quest for greater “sophistication,” colonial lawyers and judges began importing more and more elements of English procedure – and with it, more Latin. Legal historian Lawrence Friedman notes that between 1692 and 1700, the writs of scire facias (that you cause him to know) and supersedeas (you shall desist), as well as the action of trespass de bonis asportatis (trespass to goods) all entered the New Hampshire courts as “immigrants” from England.

Within a few decades, the early colonists’ dream of having a simplified, plain-English, system of pleading was gone forever. In its place was a replica of the British system, replete with prima facie cases, in camera reviews and lis pendens.

Oh well, as they say in Latin, sic biscuitis disintegrat – that’s the way the cookie crumbles.

(This column originally appeared in the February 2003 issue of New York Law Journal Magazine).