I remember that the first time I heard of “autrefois acquit” and “autrefois convict,” I ended up quite confused. These terms looked suspiciously like French but seemed like old and established expressions in the common law jurisprudence. I then learned that both are defences that can be raised by an accused who has already been convicted or acquitted of the same offence for which they were brought to justice.
The French language and common law
In my quest to find the story behind autrefois acquit and autrefois convict, I read a detailed article on the evolution of common law terminology called “The Three Languages of the Common Law,”Footnote 1 written by legal historian J.H. Baker. To shed some light on how the French language influenced English legal vocabulary, let me share with you what I learned.
Baker’s article introduced me to law French, a technical language spoken by every attorney in medieval England. In fact, this dialect formed the base of today’s English legal terminology. It’s not clear when law French first emerged, but Baker estimates that during the first half of the 13th century, a small group of pleaders invented a whole new technical language to express legal concepts. And “by 1270, much of the basic terminology of the common law had been settled” (Baker, 1998, p. 18). For example, the words “debt,” “nuisance,” “tort” and “trespass” come from law French. Nevertheless, Baker notes that it took a long time for the meaning of these words to evolve enough to be used for legal purposes.
However, contrary to popular belief, French was not used in law because of the Norman conquest of 1066; rather, it was used because, at the time, French played the role of the “language of learning and diplomacy” (Baker, 1998, p. 17) that English plays today. Moreover, even though law French was of French roots, “the meanings were not to be found in the French spoken in France” (Baker, 1998, p. 18). It was purely the language of lawyers, as it was easier to use for pleadings than the Latin used for writing judgements. For a long time, all proceedings were done in French or Latin, not English. In fact, only a few words of English were used at all in legal proceedings, such as “outlaw” or “alderman” (Baker, 1998).
Law French: A slow erosion
Baker provides an illuminating history of how, in time, this form of French ceased to be used in the English Courts. A statute from 1362 ordered all pleadings to be done in English, as people often broke the law because they didn’t understand French (many statutes were published in French) (Baker, 1998). Next, law French stopped being used in oral argument. It was used in formal pleadings, at least until 1731, but was eventually entirely relegated to written documents. In the end, it stopped evolving and became mostly unintelligible. Law French could have never been understood by French nationals. The jargon of the legal institutions would have bewildered them. Moreover, lawyers often spoke only “the simplest form of [this] technical dialect” (Baker, 1998, p. 23). Spoken law French served mainly utilitarian purposes and disappeared in the 17th century. By then, it had served its function: “it had given English law a body of new terms and concepts which enabled it to develop in its own way” (Baker, 1998, p. 24).
Law French and Canadian law
How does all of this translate into Canadian law and its legal terminology? Well, many features of our legal system come directly from England and its jurisprudence. Except for Quebec, which is mainly governed by civil law, Canada is a common law jurisdiction and, therefore, a direct recipient of all the remains and influence of law French.
That’s why an accused can raise a defence of autrefois acquit and autrefois convict in Canada, the United States and England. That’s also why in the American Supreme Court, at the beginning of each session, the Marshal of the United States Supreme Court announces, “Oyez! Oyez! Oyez!”Footnote 2 (the second person plural imperative of “oyer,” from the French ouïr). And finally, that’s why Canadian law uses the term “parole” (which is when a prisoner is granted freedom under certain conditions). All of this does not come from pure love of the French language but more from tradition.
Do you know any other field in which English terminology was influenced by French or vice versa?
