The French Language in English

and American Law

SIDNEY S. ALDERMAN
Washington, D.C .

For a lawyer of the United States to address members of the

Canadian bar on the influence which the French language has
had upon English and American law is indeed temerarious.
Though such audacity can hardly be justified, some excuses may
be offered. I therefore "cast essoins" in the sense hereinafter noted.
I had the rare privilege of taking courses in French and Roman
law at the Sorbonne in Paris after the armistice of World War I.
I was fortunate enough to acquire a French wife, bring her to
the States and keep her. Our family is as bilingual as the courts
of Quebec . For thirty-one years most of my arguments in the
domestic forum have been conducted in French, a handicap which
makes me peculiarly sensitive to the forensic power of that lan-
guage. Finally, in London and at Nuremberg in 1945-1946 I was
charged with liaison between the American and French delega-
tions and enjoyed all the delights and suffered all the "slings and
arrows" of that supreme language of diplomacy and law.
One of the oldest alliances in history is the ineradicable alli-
ance under which Norman French, Anglo-Saxon and the Latin of
the classicists united to form what we call the English language .
That linguistic alliance is the core of the profound cultural re-
lationship between the French people and the English-speaking
peoples. It is preserved in Canada more strikingly than anywhere
else in the world.
It is a curious kind of alliance, a unilateral or one-sided alli-
ance. English did not absorb French . French did not absorb Eng-
lish. French is not an absorbing language. It is a warlike, a per
sistent, a self-defensive language . It took to boats, as Hitler did
*Vice President and General Counsel, Southern Railway Company,
Washington, D. C. Former Special Assistant to the Attorney General of the
United States and assistant to Mr. Justice Robert H. Jackson in the Nurem-
berg trial before the International Military Tribunal. Chevalier, French
Legion of Honour.
1950] The French Language 1105

not do in 1940 . It crossed the turbulent English Channel with

William the Conqueror in 1066, won the Battle of 'Hastings, and
simply imposed- itself upon the English people and their language.
There it is.'There it remains . There is nothing anybody can do
about it. When we speak English today we are, to the extent of a
large part of what we say, speaking French .
Interestingly enough, when the Normans returned to France
they did not take back with them any part of the English lan-
guage, unless it be a few scattered names for things with which
they had become familiar in England but which were unknown
in France . But the French language' as such, which they had car-
ried over the Channel and with which they had conquered Anglo-
Saxon England, they left in Britain, as a vital part of the language
of the English.
Such words as boulingrin, bowling green, or redingote, riding
coat, they did carry back to France, mispronouncing and mis-
spelling them as Frenchmen would, and there they have stayed
as linguistic curiosities . Subsequently a few other English words,
largely words of métier or terms of sport, have been imported,
such as: knockout, knock-out ; biftek, beefsteak ; blackbouler, to
black-ball ; five o'clock the, five o'clock tea ; hiking ; footing; steeple-
chase ; and so on. But these are distinctly foreign words, borrowed
into the language by a kind of cosmopolitan generosity or snob-
bishness.
By and large, French is a pure language, in the sense that it
comes from one source, Latin. It is true that the classical Latin
words suffered strange, usually softening, and often beautifying,
corruptions as they descended through the folkways of the Dark
and Middle Ages. "P's" became "v's" . "S's" were dropped out
or elided, or jumped up above the line and turned into a circonflex
over the preceding vowel . But the words themselves still remain
distinctly Romance or Latin words, with no other source or de-
rivation than Latin.
One of the most curious examples of this corruption is . to be
seen in the French word évêque, 'bishop . It is the direct descendant
of the Latin episcopus, which came from the Greek, episkopos.
Coming down in the popular tongue through the Dark Ages, the
first "p" softened to a "v" ; the "is" softened to a circumflex
"e"; and "copus" dropped the Latin ending and shortened into
a simple "que" . Thus episcopus became évêque through no out-
side or foreign influence of corruption, but merely from the usure
of the musical tongues of the people. But in English "episcopul"
is exactly the same as episcopus, without change by the popular
1106 THE CANADIAN BAR REVIEW [VOL . XXVIII

tongue, and for the very reason that it was not a popular word
but a learned word, brought over intact as a Latin word by the
clerics who spoke and wrote Latin. Of course, we do have in
English the popular word "bishop" . This also is a direct des-
cendant of episcopus. However, the "e" was dropped, the "p"
changed to a "b", and the "se" changed to an "sh" . So, inter-
estingly enough, the French "évêque" and the English "bishop",
although they look quite unlike, are blood cousins.
This example could be followed by thousands like it. Almost
always, where the English language contains a distinctly Latin
word, it is direct from the Latin unchanged, or at least much
more direct and unchanged than the corresponding French word,
which has suffered, or enjoyed, much more change and corruption
in coming down the folkways.
From all this it results that French is a unitary language .
It comes from one souche . This is one reason for its great clarity
and precision. It is also one reason for its formalism, its rigidity,
its inflexibility . It is one reason why, if we try to be original, or
to turn a quaint phrase or a curious play on words, in French,
the French listener will look at us with a slightly pained astonish-
ment and say "Mais, ça ne se dit pas en français" . The formalism
of the language is such that things "say themselves" in French,
and that is the only way in which they can be said. It is not
within the rigid formalism of a unitary language to invent un-
usual or outlandish turns of phrase ._
As an illustration of how distinctly Latin the French language
is, we may note that the letter "k" is an Anglo-Saxon or a Teu-
tonic letter, rather than a Latin letter . There are only a handful
of words in French beginning in "k"; and of them, save for a few
scientific or measuring terms coming from the Greek, such as
kilogramme, kilolitre, kilometre, practically all are obvious foreign
importations, names of foreign things, such as kangourou, keep-
sake, képi, khédive, kinkajou, kiosque, kirschwasser, knout, kopeck .
But whereas French is a unitary language, English is one of
the strangest of languages, a trinitary or three-part language ;
first, the Anglo-Saxon, with its "thegnes" and "thorns" and
"wergelt" and "wolves" ; second, the direct classical Latin used
by the learned people or clerks before the Norman Conquest,
and, third, the Norman-French, brought over and superimposed
on the other two by the Conqueror.
The first, the Anglo-Saxon English, was the language of the
common people, who could neither read nor write. The second,
the Latin, was the language of the churchmen or clerks, who were
19501, The French Language 1107

the only ones who could read and write. The third, the Norman-
French, was the language of the knights, the courtiers, the law-
yers and the politicians, who came over with the Conqueror and
who held their parliaments and courts in the French language' .
From this trinitary character comes the richness of English,
its variety, its infinite choice of forms of expression, and also its
sometimes foggy confusion and lack of formal clarity .
Things, do not "say themselves" in English as they do in
French. No matter how unusual or how curiously turned an ex-
pression is, as used in English, no matter how much one sentence
or paragraph may jumble together -Anglo-Saxon English, Latin
and Norman-French, we do'not say, "But that does not say itself
in English". Indeed we hardly ever even say, "That is not Eng-
lish". So many; many things are English. Or English is so many,
many things . Even "Mares eat oats and does eat oats and little
iambs eat ivy", is good English . In fact, every word in that jingle
is an old Anglo-Saxon . word. They are, as the recently popular
song says, "a little bit jumbled and jivey", but not more so than
much of the French in English and American law .'
Almost always, in English, we can choose between an Anglo-
Saxon English word, a classical Latin word or a Norman-French
word, and whichever we choose we are still speaking English .
From this comes the tendency in English to use the common
or Anglo-Saxon words for common or ordinary things or occa-
sions, and the Latin or French words for more learned, technical,
formal or stately things or occasions . No such choice exists in
French, because there is only one word for one particular con-
cept - the Latin-root French word. That word has to be used
because there is no other. That word "says itself" . The French
do not have three different languages from which to choose.
It is for this reason that, when an American or an Englishman
first hears a French child speak French, he has the strange im-
pression that it is some kind of infant prodigy speaking, using
only learned words . Actually the French child is using the only
words his language gives him to use . They sound to us like learned
words because they would be the learned Latin or French words,
as distinguished from the common Anglo-Saxon words, if the
child were speaking English. But in French they are not learned
words. They are the only words the French have. It is the same
thing when we hear very humble, unlettered people speak French .

1 The last two quotations in this paragraph are taken from the copy-
righted composition, Mairzy Doats (copyright 1943, Miller Music Corpora-
tion) and Are used by special permission of the copyright owner.
1108 THE CANADIAN BAR REVIEW (VOL. XXVIII

My wife and I were on the coast of Brittany one summer and

we saw a most picturesque, weather-beaten, old Breton leaning
against a boat. He looked like an old loup de riser. My wife went
over to question him and asked if he was a matelot . With con-
siderable dignity he drew himself erect and replied, "Non, Ma-
dame; je vis de la mendicité" . Now we have the word mendicité
in English, "mendicity" or "mendicancy" . But hardly anybody
but a college professor would ever use it. Who can imagine a
beggar in England or America saying, "I make a living by men-
dicity"? He would inevitably use the Anglo-Saxon "beg" or say
"I am a beggar" . To me, the French mendicant sounded like a
professor of the Sorbonne making a. joke at our expense. But he
was using the only French expression available. The French
"said itself" that way.
There is an insoluble philosophical problem about the relation-
ship between thought and language, between spirit and letter, be-
tween l'esprit or la pensée and le snot. We think of words as mere
phonetic symbols, symbols for ideas or thoughts . But try to think
without words. Can you do it? Hardly . You can feel sensations
without feeling in terms of words. You may not be able even to
find words to describe the sensations . But sensations are not
thoughts . I doubt, however, that you can think, reason or ana-
lyze other than in terms of words.
Wordsworth said of human beings, "Trailing clouds of glory
do we come from God, who is our home" . However much of poetic
exaggeration there may be in that statement, certain it is that
words come trailing clouds of associations of ideas. And much of
what we fondly call our thinking is really nothing more than the
stirring up of associations of ideas by words which come into our
minds.
If we cannot think without using words, then words must be
something more important with relation to thoughts than mere
symbols. They must be more intimately a part of the process of
thinking than merely signs. If the word is not actually a part of
the thought, then which comes first - do thoughts come before
words or do words come before thoughts? Which is the causative
element? Do words produce thoughts or do thoughts produce
words? Or is something else the engendering cause of both thoughts
and words, pushing them forth into life, to go tied together like
Siamese twins? Our great Mr. Justice Holmes once presented the
Siamese twin idea in much prettier form when he said, I "A word is

2 In Towne v. Eisner (1918), 245 U .S . 418, at p . 425 .

1950] The French Language 1109

not a crystal, transparent and unchanged, it is the skin of a living

thought . . .". '
In, his Faust, Goethe brings his hero through youth and middle
age to old age. Faust has studied all that human learning can
offer, medicine, law, philosophy and, as he says, "unfortunately
also theology"_ And then he sits down to translate the Scriptures
from Greek into German . He thinks a good place to start will be
the first chapter of St. John. So he translates and writes in German,
"In the beginning was the Word". But he instantly runs up against
the puzzle involved in his translation of the Greek word logos. How
could the "word" be the beginning? Thought must come before
word. So he changes his translation and writes, "in the beginning
was the Thought" . But still he is not satisfied . Thought cannot
exist by itself. It cannot exist without something being in exist-
ence before it, to do the thinking. Thought is the result of some-
thing, not the cause of everything. Thought cannot be the First
Cause. After puzzling over the problem all night, he finally changes
to a third translation and writes, "In the beginning was the Deed.
And the Deed was with God . And the Deed was God ."
Faust's solution is somewhat in line with the modern science
of general semantics, but it is hardly satisfying to those uninitia-
ted in that science .
But why consider such a metaphysical problem? It is because
there is some very intimate, if unexplainable, inter-relationship
between thought and word, between spirit and language. If the
French language has come over and imposed itself upon English,
so that what is now English is in large part really French, then
there must have come along with it a considerable part of the
French spirit, of the French esprit, of the French mind. And the
English-speaking peoples can never shake it off.
Let us come down, however, to the narrower subject of this
paper, The French Language in English and American Law.
When the Supreme Court of the United States is about to con-
vene, the 'crier (and incidentally "crier" is a French word) . is on
the alert (which also is French) . As the justices come through the
heavy draperies (and draperies are French), he raps for the audi-
ence (also French) to rise and announces in solemn tones :
The Honorable, the Chief Justice and the Associate Justices of the
Supreme Court of the United States .

When the justices have taken their places standing behind the
bench, the crier intones :
Oyez, oyez, oyez! All persons having business before the Honorable,
the Supreme Court of the United States, are admonished to draw near
1110 THE CANADIAN BAR REVIEW [VOL . XXVIII

and give their attention, for the Court is now sitting. God save the United
States and this Honorable Court!

Out of this whole formula, and you may not have thought of it,
the following are French words, brought over to England with the
Norman Conquest : "honorable", "chief", "justice", "associate",
"supreme", "court", "united", "states", "oyez", "persons", "ad-
monished", "attention", and "save" .
Many people, some lawyers, some judges even, have no idea
what "oyez" means or whence it comes. It is the imperative of
the Norman-French verb "oyer" and means "hear ye". "Dyer"
is from the older French verb "oir", the modern French form of
which is "ouir" . All of these descend directly from the Latin
"audire", to hear, from which comes also "audience" .
The same French verb had familiar use in old English law in
the Courts of Oyer and Terminer, meaning "to hear and deter-
mine". Those Courts of Oyer and Terminer trace back at least to
long before the reign of Edward III, since such abuses had al-
ready grown up in the jurisdiction of those courts that a statute
of 2 Edward III confined their jurisdiction to "great and horrible
trespasses". The State of Delaware still has a Court of Oyer and
Terminer .
Blackstone, the great commentator on the English law, has
an interesting footnote dealing with this cry "oyez" . He is speak-
ing of the "ignorance of succeeding clerks" in misunderstanding
the meaning of certain Latin and French terms in pleadings, and
in the footnote he says : "Of this ignorance we may see daily
instances in the abuse of two legal terms of ancient French ; one,
the prologue to all proclamations, `oyez', or hear ye, which is
generally pronounced most unmeaningly, `0 yes'; the other a
more pardonable mistake, viz. when the jury are all sworn, the
officer bids the crier number them, for which the word in law-
French is `countez'; but we hear it pronounced in very good
English, `count these' ."
It is interesting to compare with Blackstone's statement the
statement by the French encyclopedia Nouveau Larousse Illustré,
which, speaking of "oyez", says (my translation) : "a French
word which English criers still pronounce to command silence of
the audience and which they pronounce `0 yes' ; French criers
also formerly said `oyez', a word which, however, they have
replaced by another less polite one: `silence!' ."
I have spoken of the profound effect of the Norman Conquest
on the English language and on the language of the English law.
Two of the greatest historians of the English law, Pollock and
1950] The French Language 1111

Maitland, call the Norman Conquest "a catastrophe which deter-

mines the whole future history of English law" . Speaking of the
effect of the Conquest on our legal language, they say: "One in-
delible mark it has stamped forever on the whole body of our
law. It would hardly be too much to say that at the present day
almost all our words that have a definite legal import are in a
certain sense French words ."
They point out that a few English terms, such as earl, sheriff,
king, queen, lords, knights of the shire, were preserved . Aldermen
are English, but mayors are French . Parliament, statutes, privy
council, ordinances, peers, barons, commons, the sovereign, the
state, the nation, the people, all are French .
True a man may still give, sell, buy, let, hire, borrow, be-
queath, make a deed, a will, a bond, and even commit man-
slaughter or murder in English . But contract, agreement, coven
ant, obligation, debt, condition, bill, note, master, servant, part-
ner, guarantee, tort, trespass, assault, battery, slander, damage,
crime, treason, felony, misdemeanour, arson, robbery, burglary,
larceny, property, possession, pledge, lien, payment, money,
grant, purchase, devise, descent, heir, easement, marriage, . guar-
dian, infant, ward, all are French .
When we enter a court of justice : courts, justices, judges,
jurors, counsel, attorneys, clerks, parties, plaintiff, defendant,
action, suit, claim, demand, indictment, count, declaration,
pleadings, evidence, verdict, conviction, judgment, sentence,
appeal, reprieve, pardon, execution, every one and every thing;
save the witnesses, writs and oaths, have French names.
All these French names came over to England with and follow-
ing the Norman Conquest. Indeed Pollock and Maitland further
say : "If we must choose . one moment of time as fatal, we' ought
to choose 1166 rather than 1066, the year of the assize of novel
disseisin rather than the year of the battle of Hastings. Then it
was that the decree went forth which gave every-man dispossessed
of his freehold a remedy to be sought in a royal court, a French-
speaking' court. Thenceforward the ultimate triumph of French
.
law terms was secure ." a
The reference to the assize of -novel disseisin brings to mind
one of the most interesting features of the Norman Conquest,

a The substance. of, and the quotations contained in this paragraph and
the preceeding four paragraphs are taken from History of English Law by
Pollock and Maitland '(2nd ed.), vol . 1, pp . 80-81 and p . 84, and are used
by special permission of the English publishers and copyright owners, Me-
thuen and Company, Ltd ., London, England, and of the American publish-
ers and copyright owners, Little, Brown &Company, Boston.
1112 THE CANADIAN BAR REVIEW [VOL . XXVIII

from the viewpoint of the history of English law, and that is that
the Conquest brought over to England, as a fully developed fait
accompli, the feudal system, which had had a long evolution in
France from the rudiments of the late classical period. The long
history of the slow evolution of the feudal system in France,
which is such a fascinating chapter of the History of French Law,
is a chapter wholly mis3ing from the History of English Law,
because the Norman Conquest brought the feudal system over
to England as a fully developed and perfected system . I have no
intention of making this paper a study of the feudal system,
enticing as that subject is. But the essence of the feudal sys-
tem lay in the conditions on which land was held, that is, the
conditions of land tenure .
Briefly, the King held or owned (the law said he was seized
of) all the land in the realm. He let out his lands in large parcels
or provinces to his highest liege lords, called the tenants in capite,
to be held by them on condition that they should perform ser-
vices - mainly military services - in time of need or when called
on. These tenants in capite, in turn, let their lands out in lesser
parcels to lesser lords or knights, on a like condition of military
service. They let theirs to still lesser knights on like condition,
and they to their subordinates, and so on down, until the simplest
peasant held his small farm or house, not in absolute or fee simple
ownership but as a tenant, on the condition that he should render
military or other services .
It was a wonderfully efficient system. If an enemy invaded
the realm, or if the King declared war, he did not have to call for
volunteers or urge a draft act. He simply called on his tenants in
capite to furnish his army. If they should fail, they lost all their
lands . They in turn called on their sub-tenants and they on their
sub-tenants on down to the simple soldat . Everyone had to do what
was required or else lose all his lands .
But the interesting thing from the viewpoint of our subject is
that this fully developed feudal system, brought over to England
by William the Conqueror, brought with it all its technical terms
in French and they have stayed in English law. We have seizin,
livery of seizin, feud, fief, lease, liege lord, tenant, tenant in capite,
tenure, condition, homage, and a host of other French, feudal,
technical terms.
Homage is one of the most interesting of these terms. When
the King made a man one of his tenants in capite and invested
him with this feudal tenure of lands on condition of performing
military service, or when a sub-tenant so invested a sub-sub-tenant,
1950] The French Language 1113

he made a ceremony of it, struck him on the shoulder with a sword

and said, "I make you my man", "Je vous fais mon homme". When
this man performed the service upon condition of which he held
his lands, he was said to render his homage, that is, render his
man-service. So, when a Frenchman kisses the hand of a lady and
says, "Madame, je vous présente mes hommages", he is using the
feudal formula. He is saying that he is her man, to perform for
her military service or any other service she may demand or desire
of him. It need hardly be suggested that the formula is often a
gross exaggeration .
Not only in 'the technical terms of the feudal system do we
have French terms, but English and- American law are full of
French words, recognized as French words and not merely English
words derived from French, many of which come right down . to
date and are in current use. I may cite some of the more interest-
ing of them.
Appuye, in old English law, was .the point to lean on; the
defence.
Au bout de compte -at the end of the account - is found in
old English law books. ,
Today we still hold property pur autre vie -for the life of
another -or pur autre droit - in the right of another.,
The pleas autrefois acquit - already acquitted - or autrefois
convict - already convicted - both pleas of double jeopardy, still
exist.
Battel or bataille meant single combat.
Beaupleader was a fair pleader.
Bésayel was a great-grandfather.
Biens were goods and chattels ("chattels" itself is French) .
Biens meubles et immeubles were goods movable and immovable.
Boscage was that food which trees yield for cattle.
Celui, or slightly corrupted forms of it, is still common, especi-
ally in the law of trusts. One for whose benefit a trust is held is
celui qui trust or cestui qui trust or sometimes cettui cqui trust.
A curious old English law term was- chafewax -an officer who
melts or fits the wax used in sealing writs.
Chargé d'afaires -one who is charged with the affair .or the
responsibility - not only was an old English law term but is now
in everyday diplomatic use all over the world.
Cheaunce was a chance mishap or accident. Chance medley
meant the same , thing.
Cheveres meant goats.
Chose in action -a thing in action-is used today in both
1114 THE CANADIAN BAR REVIEW [VOL. XXVIII

English and American law, meaning a right which may be en-

forced by a cause of action at law or in equity .
Congé d'élire - leave to elect - was the King's permission to
a dean and chapter to elect a bishop .
Cornage - homage -was a feudal tenure the service of which
was to blow a horn upon approach of the enemy.
Corsepresent - corpse present - is one of the most curious of
old English law terms. It was the present or fee given to the min-
ister of a parish upon the death and burial of a parishioner, so
called because it was brought to the church at the time of the
burial along with the corpse .
The terms of heraldry in English are all French . We have lion
rampant or couchant, unicorn regardant, and a host of other terms.
Crier la peen - cry the peace - meant the same thing as "to
read the riot act" .
Cy - here - occurs often in our law even today. Cy apres is
"hereinafter". Cy près - near this - is a doctrine of the law of
trusts whereby, if the intention of a donor of a charitable trust
cannot be carried out to the letter, the courts of equity will fashion
a trust as nearly like that intended by the donor as possible .
De bien et de mal was in the wedding ceremony, "for better or
for worse" .
Commonly used in the older English law was the phrase de
common droit, of common right.
A quaint French term was de cy en avant, "from now hence-
forth" . De ques en ça meant "from which time until now" . De
sormes (désormais) meant "from henceforth".
Dehors is constantly used in English and American law. In
writing a brief for the United States Supreme Court, or any other
court, we constantly speak of evidence dehors the record (mean
ing outside of the record), of evidence dehors the contract . Or we
frequently say simply evidence dehors and all lawyers know what
is meant, though not all of them know that the word is French .
When any person intermeddles with the assets of the estate of
a deceased person, or makes the unfortunate mistake of mixing
the funds of the deceased with his own funds, he automatically
becomes an official of the law in spite of himself, like Molière's
médecin malgré lui. He is called executor de son tort, that is, "exec-
utor by reason of his own wrong" . And he is held accountable in
law just as if he had been appointed executor by the probate
court. And, by the way, "executor", "probate" and "court" are
all French words.
19501 The French Language 1115

Demens,, in old English law, was one who had been sane but
who had lost his mind.
Demesne meant lands which a man held of himself, and had
immediate and exclusive control of, as distinguished from those
held of a superior lord . When you have this technical law meaning
of the word in mind, the line from Feats' sonnet, "On First
Looking into Chapman's Homer", has much more meaning to
you, the line which runs, "That deep-brow'd Homer ruled as his
demesne".
Dieu son acte was the term of the old English law for the act
of God, which excuses a common carrier from a contract of, car-
riage.
Doigne meant "I give" . It is the modern French je donne.
Droit d'aubaine was the Ding's right of escheat of an alien's
property, which reverted by this right to the King upon the death
of the alien.
Droit de bris is a very interesting French term of old English
law meaning the right which in ancient times the lords living on
the coast of France claimed to persons and property shipwrecked
and which were confiscated to their benefit.
The droit du seigneur existed in the old law of England, in
word if not in fact . It is not preserved in modern law, though it
seems to exist after a fashion in Hollywood.
Droit des gens is still used, meaning international law, the law
of peoples, though the Latin form, jus gentium, is probably more
generally used .
One of the funniest looking of the law French terms I have run
across is diaskes à chow qe. Can you imagine what that meant? It
meant "until that" . It was a corruption by lawyers and law
writers ignorance of. jusque à ce que.
Another strange one was cane; meaning "water". It was the
French word eau, but, in crossing the Channel, the "u" was cap-
sized and turned into an "n" .
En afrayer de la pees meant to commit a breach of the peace.
En especes au tour de ce jour was the old law term for "in the
coin or currency of the present day" .
What do you suppose enke was? It meant "ink". It was the
way the. old English lawyers and court clerks spelled encre.
There were hosts of other French words beginning in "en".
A few of them were : en pleyn vie, "in full life" ; en poign, "in
hand" ; en primes, "in the first place" ;ensy,ror ensi (ainsi);'"thus" ;
entrelessé, "omitted"; entrelignure, "interlining" ; envéer, "to send" ;
en ventre sa mere, referring to an unborn child. Even today, in
1116 THE CANADIAN BAR REVIEW [VOL . XXVIII

bringing suit on behalf of an unborn child, it is always alleged to

be an infant en ventre sa mere .
Whether the old lawyers used en sac for "it's in the bag", I
do not know, but they well might have. At any rate, it's a very
good place to have a lawsuit.
When "our Nell" had not been done right by, and had to
bring a bastardy proceeding against what the law calls the "puta-
tive father", to charge him with the support of the child, she
alleged that she was enceinte per A, naming the putative father.
A fait enrollé was a registered deed .
In the statute 7 Richard II, c. 5, the word faitours was used
to refer to "evildoers" .
Fausenerie meant forgery .
Even today our statutes refer to a married woman as feme
covert and to an unmarried woman as feme sole . Feme covert does
not mean exactly what one might think. Covert is used in the
ancient sense of "sheltered" or "protected" . The sole in feme sole
is a reversion to the Latin form solus, "alone" . It is a stronger,
harsher word than seule. Une femme seule, in modern French, has
a flavour of only moderate loneliness. In fact she may get around
and have a pretty good time. But note how terribly and desolate-
ly abandoned it sounds when you say feme sole .
And then the law has a French term for still a different kind
of woman and that is feme sole sub modo . That one is nice. It
means "a single woman to a certain extent" . It puts it in a suave,
French, understanding manner . It is reminiscent of the French-
man who said that he was légerement fiancé, "slightly engaged".
Fief d'haubert was feudal tenure by knight's service, meaning
literally "fief of the halberd". When his lord called on him for his
homage, he had to come and bring his halberd with him.
As "boys will be boys", so lawyers will be lawyers . The old
English lawyers had a practice called fourcher, literally "to divide"
or "to fork" . It consisted in casting essoins or excuses by two
tenants alternately, in order to delay the proceedings . The law
still knows its deliberate delays, and all of us know many lawyers
today who are adept fourcheurs .
Fuer, flight, was an interesting word. It was used substantive-
ly, though in form a verb. There were two kinds of fuer : fuer in
fait, which was actual flight; and fuer in ley, or flight in law, legal
flight, which was when, being called to court, he appeareth not.
An old word, gist, or sometimes git, is still used every day . It
means the very central point in the case or the very point in
question. Most of us say gist, but I have known older lawyers
1950] The French Language 1117

who always said git. This reminds me of the great diffigulty which
I had as a freshman in college the first time I ran across the
expression ici git, "here lies". I looked in the French dictionary
for giter, giter, and everything I could imagine. It was a long time
before* I found gésir. Git also recalls the famous. passage from La
Rôtisserie de la Reine Pédauque of Anatole France, when le père
Jérome Coignard died and his forlorn drinking companions were
trying to decide on an epitaph for him. One of them went off and
worked for a long time to produce an epitaph-in, verse. After
hours of labour, he proudly returned to his companions and read
them this single couplet:
Ci-dessous gît monsieur Coignard.
Il faut bien mourir, tot ou tard."
He asked their judgment on the couplet. "That couplet", said a
sententious member of the group, "has one virtue . It does not
call for another."
Grosse bois meant such wood as, by the common law, or cus-
tom, was considered as timber.
Every day we still use holograph. A holographic will is a will
written entirely in the handwriting of the testator . It does not
need to have witnesses, but it must be found among the testator's
important papers and .effects, else it is.invalid . If any part _®f it is
not in his handwriting, it is invalid.
The French je somehow often acquired a final. "o" and became
jeo. Thus we had jeofailé, "I have failed or erred" . And one of
the famous, historic statutes of England was the Statute of
Jeofailes, a statute for the correction of errors, but it didn't cor-
rect the French error in its title.
Les usages et coutumes de la mer were the usages and customs
of the sea, or the basis of maritime law.
The old English law distinguished between le tien et le mien,,
your property and my property. The Latin form also was used,
tuum et meum . Mixing up le mien and lé tien brought, and still
brings, serious consequences . '
A quaint term was lettereure, "learning", which was directly
related to both "letters" and "literature" .
Livérer was "to deliver". Lower was -a bribe.
I have found a curious old note on litera . It says : "From the
Fr. 6litière', litter. .This word was anciently used for straw for a
bed; even the King's bed. In our law books this word is often
used for the article called litter, now used in stables among
"Beneath here lies Monsieur Coignard.
Everybody has to die, sooner or later."~
1118 THE CANADIAN BAR REVIEW [VOL . XXVIII

horses, etc. Rushes and straw generally composed the material

for the sleeping places of our martial ancestors and occupied the
place where feathers and down are now substituted; and many
allusions to the flag and rush are to be found scattered in the
ancient writings. It appears that the practice of sleeping on
rushes was customary so late as the time of Henry IV, as Shakes-
peare, speaking of a husband sung to sleep by his wife, says :
"'She bids you
Upon the wanton rushes lay you down,
And rest your gentle head upon her lap.
And she will sing the song that pleaseth you.
King Henry IV.'"
Mainprize, "taking in hand", was the taking or receiving into
friendly custody or bail of a person who otherwise might be com-
mitted to prison, giving security that he should be forthcoming
at a time and place assigned .
The popular, recent American book Boners, which gives prize
howlers pulled by school children, tells of the boy who was asked
to define "maneuver", and who answered, "Maneuver is what
they put on grass. We have maneuver on our lawn." 5
Well, the interesting thing is that historically he was not
wrong. Manovre in English law meant "hand labour". One of the
principal hand labours on the farm was the scattering of manure .
The word for "hand" had several forms, man, main, meyn .
Meynoverer (which is exactly the French word manoeuvrer) actu-
ally meant to scatter manure. Sometimes the boners of children
are wiser than their teachers.
Mortgage is, of course, French . Everybody knows what an
unpleasant thing it is. It is a "dead pledge". If you don't pay
the debt when due, you lose the pledge .
A famous statute in English history was the Statute of Mort-
main, of "dead hand". When property was left to God or the
church, it was permanently removed from commerce. The church
held it in perpetuity . It was said to be in mortmain, in the dead
hand . The purpose of the statute was to break up this dead-hand
holding of property. Out of it has grown the modern "rule against
perpetuities".
Ne unques accouplé was the plea "never married".
Nient cul' was "not guilty" .
Nient de dire meant "to stand mute" or "to default" .
Nosaunce was a nuisance .
s Quotation from The Pocket Book of Boners, used by special permission
of the copyright owner, The Viking Press, Inc.
1950] The French Language 1119

We still plead nul tiel corporation, "no such corporation" ; and

nul tiel record, "no such record" .
Overt is still used every day. In order validly to charge a con-
spiracy, an indictment must charge an overt act, an open act.
Pannage was that food in England that swine feed upon in
the forests, such as acorns.
Parage was equality of blood or position . From it came the
peerage .
Parle-hill, or parlinge-hill, anciently was a hill on which courts
were held, là où on parlait. By the same token, Parliament means
a place where talking is done . The phenomenon may be observed
in the Senate of the United States any day.
La peine forte,et dare, "the punishment strong and harsh",
was something really ferocious. When a culprit refused to plead
to an indictment, he was placed under heavy weights and fed with
bread and water until he died of bursting .
Peisible was peaceable.
Per tout et non per mi, "by the whole and not by the moities",
was the estate by the entireties . It still exists in many of the states
of my country. If a deed is given to a man and his wife, they
hold per tout et non per mi. If one dies, the other keeps the whole
estate and it does not have to go through the administration of
the estate of the deceased .
We have still the grand jury and the petty jury, and they are
both French terms. So is petty larceny., A neighbour of mine in
North Carolina had a coloured cook named Petty Larceny. Her
parents had seen the name in the newspaper and thought it was
pretty . It is pretty .
The Pie Poudré Court, the "powdered foot court", which the
English lawyers undoubtedly called the "Pie Powder Court", was
a court held at some fairs in England, where -justice was admin
istered instantly, whilst the dust was fresh upon the feet of the
suitors.
Pilleur was a plunderer. Pontage was a bridge toll. Povers were
paupers. -
Profit à prendre was and still is an easement to take something -
from the lands of another, such as firewood, timber, minerals. .
Prochein ami, the next, or nearest friend, is still used today.
When an infant brings a suit he sues by his prochein ami.
We still find in the books references to a plea puis darrien
continuance, a corruption of depuis la dernière continuance. It is . a:
plea setting up something which has happened since the last- con-
tinuance of the case.
1120 THE CANADIAN BAR REVIEW [VOL. XXVIII

An amusing one is pur ceo que. It means "because", "foras-

much", and was common in old law books . It, of course, is the
French par ce que.
Reconquis is to obtain again. Reconustre is to recognize . Répré-
hensailles are seizures . Rescous is a rescue . Réséaunt is "residing" .
Ribaud is a vagabond.
Rôle d'équipage was a bill of lading for a vessel or a list of the
crew.
Ryvire was river . Rivière got all twisted as rivers are in the
habit of doing.
Sa et la was "here and there" ; sans ceo, "without this" ; sans
issue, "without offspring".
Semble is used constantly in court opinions today, meaning
"it seems" .
When the King sent a message to the House of Commons, he
wrote on it soft bailé aux commons, "let it be delivered to the com-
mons". When he sent a 'message to the House of Lords, he en-
dorsed on it soit bailé aux seigneurs, "let it be delivered to the
Lords" .
Tout temps prist meant "ready at all times".
Trébuchet was a tumbril or a place of castigation . Trébucher in
French means to trip or stumble and fall. It was quite a downfall
to ride in the tumbril to the guillotine . Another meaning of tré
buchet is "a bird trap or gin". The law term is related to both
meanings.
Véage was "voyage", Véel meant "old".
Of course, we still use venire and venue daily.
Vert, "greenhue", signified everything that beareth a green
leaf within a forest .
Speaking of vert, there is a most interesting confusion which
completely changed the famous story of Cinderella . In French,
Cendrillon wore a soulier de vair to the ball. That was a slipper of
gray fur . Some translator, translating the story into English, con-
fused vair, "fur", with verre, "glass", so that poor Cinderella, in
English, has to wear that most uncomfortable of all things im-
aginable, a glass slipper.
We still use voir dire, literally . "to see him speak" . When we
examine jurors to see if they are qualified to serve, they are put
on their voir dire . That .is, we see them speak. It would not be
enough merely to hear them speak. We must watch their faces
to see, if they are lying.
This brings us to the end of the alphabet. We have dealt with
only twenty of the twenty-six letters . No French words in the law
1 .9501 . , . . . ;The: French Language 1121

have been :found -béginn ng,iXf.fk"., 66u7) 9 66w919 ' 6.&xf9 9 6699 or 66,97.
The timq? .spent on the .alphabét. rëcalls a 'story which I must
}tell. At--a banquet attended by ali mni of -various colleges and
uhiversitios,. the'. principal,speakér'Was an alumnus of Yale. He
thought - it a happy conceit to framé his talk âround the name .
"Yale"', attributing a meaning to eachletter. So he, discoursed for
about twenty minutes on the letter`y", standing for "youth" ;
about twenty minutes- on "a", standing for "ambition" ; another
twenty minutes on "I", for "liberalism" ; and he was just launch-
igg into his final twenty minutes on" "e", for "emulation", when
someone in the audience was heard to say, "Thank God he is not
an alumnus of The Massachusetts Institute of Technology" .
The last name of Edouard Herriot is an interesting law term.
Herriot was a form of tenure in England under which, when the
tenant dies, the lord is by custom entitled to the best beast on
the farm, or the second, best beast, according to the custom of dif-
ferent places .
The ancient address of the ritish Parliament to the King was
in this quaint French:
Les prélats seigneurs, et commons en ce present parliament essemb-
lées, au nom de touts vos mitres sujets, remercient très humblement
votre Majesté, et prient à Dieu vous donner en santé bonne vie et longue .
The King was equally polite to the Parliament. When he ap-
proved a bill, he wrote upon it le roy le veult, "the King wishes
it" . Put when he disapproved a bill he refrained from using the-
peremptory Latin form veto, "I deny". Instead, he politely wrote
upon it le roy s'avisera, "the King will take it under advisement" .
That killed it just as effectually as veto, but more pleasantly .
One can hardly speak of the French language in English and
American law without making a brief reference to Louisiana law.
The source of the law of every one of the States of the' United
States, except Louisiana, is the common law of England as brought
to that country by the colonizers. Put Louisiana is unique . The
source of her law is the Code Napoléon . Her law has no filial
relationship to the common law of England. It is purely French
law. The Code Napoleon took effect when France acquired Louisi-
ana from Spain. And when Jefferson purchased the great western
territories from Napoleon the people in that part of the territory
which became the State of Louisiana kept their French law . The
courts in Louisiana follow the , French' jurisprudence, the. decisions
of the French courts, rather than the decisions of English and
American courts, as precedents, on all matters of State law. ®f
course, as to all federal questions they must, under our Con-
1122 THE CANADIAN BAR REVIEW [VOL . XXVIII

stitution, follow the decisions of the Supreme Court of the United

.States, not always an easy task.
I once had the privilege of appearing in a will contest case
down on the Bayou Têche, in southwestern Louisiana . It in-
volved the validity of a testament holographique . I had to study
-the Louisiana Code, which is really the Code Napoléon, for the
statutory provisions. And for the jurisprudence, I spent two weeks
in the French section of the Library of Congress, reading and
abstracting the decisions of the courts of France on holographic
wills . My brief in that case was the only French law brief I have
ever written, though it was actually written in the English lan-
guage.
A friend of mine, a very witty lawyer of Atlanta, tells a story
of his appearance in a law court in Louisiana. In his argument to
the judge he said, "Your Honor, being a Georgia lawyer, I thought
I would have great difficulty with your Louisiana Code . But I
find that there is not so much difference between it and the Geor-
giaCode, except that your Louisiana Code reads as if it were
written by a Negro preacher ."
The Louisianians are a proud people, and very proud of their
French law, so the judge was somewhat nettled. "What do you
mean, sir, by that remark?" he demanded .
"Well, Your Honor", said my friend, "a section of the Code
of Georgia reads, `Courts of equity shall always be open to
settle the accounts of guardians' . Now I find you have a similar
.section in your Louisiana Code, but it reads, `Courts,of chancery
shall always be open to homologate the accounts of tutors' . I
submit that that sounds as if it had been written by a Negro
preacher."
Of course, the Louisiana law is chock-full of French words and
expressions. But, more than that, the Louisiana law substantively
and actually is French law.
It is not always realized, even among lawyers, what an im-
portant part the French language plays in our language and in
our law. I have suggested the intimate relationship between the
word and the spirit. We English-speaking peoples could not have
taken and used as much of the French language as we have with-
out also, in like measure, having taken over a part of the French
mind and spirit. Here lies a spiritual unity between our peoples
which must ever be important in world affairs. It is, as I have
said, the oldest and most indestructible alliance in world history.
It is often said that France is indispensable to the world. At any
rate, France and the French language are certainly indispensable
1950] The French Language 1123

to the English-speaking peoples, and especially to English-speak.,

ing lawyers.

Guns, Butter or justice?

When one reads on [in Al- Gabarti's history], one finds that these latter-day
gesta Dei per Francos stimulated the receptive doctor of the University of
Al-Azhar to begin his own personal re-education immediately. One of the
first acts of the French after occupying Cairo was to stage there a scientific;
exhibition, with practical demonstrations, and our historian was among the
visitors . After remarking that the French evidently mistook the Muslims
for children who could be impressed by monkey-tricks, and that this was
really rather childish of the French themselves, Al-Gabarti frankly records
his admiration for the demonstrated achievements of Frankish science . He
notices that, among the damage suffered by the French in a revolt which
they had provoked by their high-handed behaviour at the outset, the loss
which they appeared to mind the most was that of some scientific instru=
ments that had been destroyed in the house of the savant Cafarelli . But
Al-Gabarti's interest in French science is surpassed by his sensitiveness to
French justice. French soldiers are convicted of house-breaking with vio-
lence, and, on Napoleon's personal orders, they pay for their crime with
their lives. Napoleon's successor in command of the French army of occupa-
tion, General Kléber, is assassinated by a Muslim fanatic, and the murderer
is given a genuine fair trial . This trial wins Al-Gabarti's enthusiastic admira-
tion, and, frank as always, he records his opinion that the Muslims would
not, in corresponding circumstances, have risen to that moral level . He is so'
intensely interested in the proceedings and so eager to preserve a record of
them, that he incorporates the dossier of the trial in his narrative, reproduc-
ing the documents verbatim in the French military chancery's defective
arabic. . . . [The] `utility' pattern of Western civilization was, of course,
comparatively easy to take ; Peter the Great revealed his genius by instantly
pouncing on it as soon as it was displayed in the West's shop window . A
hundred years later, the subtler and more spiritual Al-Gabarti showed a
nicer discrimination . French technology hit him in the eye, but he persisted
in waiting for a sign . For him, the touchstone of Western civilization, as of
his own, was not technology but justice . This Cairene scholar had appre-
hended the heart of the matter, the issue which the West has still to fight
out within itself. (Arnold J . Toynbee : Civilization on Trial . 1948)