Some people eat, sleep and chew gum, I do genealogy and write...

Monday, June 6, 2016

Latin Legal Terms for Genealogists -- Part Two

Carmina Cantabrigiensia Manuscr-C-fol436v.jpg
Carmina Cantabrigiensia Manuscr-C-fol436v

Despite the "modernization" efforts of legal scholars and the attempts to stamp out old legal terms and forms, the law retains its heritage of Latin and obfustication. In the United States, our entire court system is based on the concept of stare decisis (another Latin term) that means literally, "to stand by things." You might refer to this as the conservation of decisions. The courts are bound to consider the prior rulings of other judges which establish the rule of precedence. If a judge decides to strike out on his or her own and decide a case differently than it has been decided by judges previously, the case will likely be appealed to a higher court. Over time, when the higher courts agree to the innovation, the law changes ever so slightly.

For genealogists, this conservatism (in the classical sense not the political sense) is both good and bad. It is good because legal documents used in research in the areas where English law is prevalent are much the same and remain constant back through hundreds of years of history. But this attachment to the past does present a challenge from the standpoint of understanding the terminology and deciphering the meaning of legal documents.

In the first post in this series, I mentioned the Wikipedia article entitled "List of Latin legal terms" where dozens of such terms are listed in alphanumeric order. I must admit that there are a lot of those terms that I have never used and do not recognize. If I encountered such an unknown term, I would have to do just like the rest of the world and look up the terms in a dictionary, probably Black's Law Dictionary.

I am sure that there are many genealogists who have never read a will or a trust or a legal document of any kind. But eventually, if you keep at research for a long enough time, you will be confronted with the need to understand some basic law and learn some common legal terms and some that might not be so common. I am not commenting on every, single Latin legal term that I can find, that would be the same as compiling a dictionary of Latin words. My posts are aimed at giving an basic introduction to some of the more common terms with a commentary on their use and meaning. The idea here is to get you started in understanding that reading Latin terms is merely another very necessary aspect of genealogical research.

Here I go.

actus reus, mens rea -- literally "guilty act" and "guilty mind"
These terms refer to the heart of the court's decisions in the area of criminal law. Some criminal acts require only an illegal or guilty act and are based on the concept of "strict liability." For example, if a person is found to be driving a car with a certain level of alcohol or drugs in his or her blood, the person is guilty regardless of the mental state of the person at the time of the offense. There is no defense that the person drove with a pure intent or did not realize that they were drunk. On the other hand, the concept of mens rea is that some crimes do require the perpetrator to have an "evil or guilty mind." For example, a common definition of theft includes the following words, "the felonious taking and removing of personal property with the intent to deprive the rightful owner of it." The words "with the intent" refer to the concept of mens rea.

It is probably a good idea to discuss the difference between civil and criminal law. The basic difference is rather simple. All criminal actions are brought by the state (government) through one or more of its agencies i.e. the state of Utah or the county of Juab. Criminal actions have the potential of fines or imprisonment or both. Civil cases are those brought by anyone that involve all of the other issues that might arise between parties. What is and what is not a criminal act is defined by statutory (legislative or regulatory) law. The court procedures that apply to criminal vs. civil court actions are vastly different.

ad infinitum -- literally " to infinity"
This term is not too common in legal documents but is also used outside of the legal context. It refers to anything that may go on and on for an extended period of time.

affidavit -- literally "he has sworn"
The word "affidavit" has become so commonly used in the law that its Latin origin is largely ignored. The word has passed into common usage and become an "English" word with its own meaning. An affidavit is a sworn statement made in the context of a court proceeding. It has become a common noun in the sense that a person is said "to give" an affidavit and other parties are requested to provide affidavits. An affidavit often has language that the "affiant" or person giving the affidavit has been sworn and is giving the affidavit under oath. A very long affidavit is referred to as a "deposition."

ad litem -- literally "for the case"
This is another Latin term that has become an English term apart from its Latin meaning. In the law, the term "ad litem" has come to refer to someone who is appointed by the court to represent a person that cannot or will not represent themselves through minority or incapacity. For example, if a child appears in court, it is necessary to appoint an adult to represent the child, ad litem, in the proceedings. The term has also come to mean "during the pendency of the legal action."

 ad valorem -- literally "according to value"
This is a common term found in probate cases and other matters where the value of property is at an issue. It is also used in tax matters where some taxes are levied "ad valorem" or according to the value added by manufacturing or processing. The word can also be used in the more general sense to refer to taxes add to the value such as sales taxes and import duties.

adjournment sine die -- literally "adjournment without a day"
This is another example of a word, "adjournment," that has become so common as to be an English word. In the legal sense the entire phrase refers to the termination of a proceeding, usually a legislative session, without setting another date for its continuance.

amicus curiae -- "friend of the court" however literally it means "friend of the senate"
The phrase "amicus curiae" is commonly used as an adjective to describe a brief or court pleading filed by someone or some entity that is not a party to the court case hoping to affect the outcome of the decision. You hear the term frequently used in conjunction with actions in the United States Supreme Court. Sometimes, these interested parties are even allowed to participate in the oral argument of the case.

alter ego -- literally "other self"
The alter ego doctrine is also known as the "instrumentality rule" because the context of corporate law, the corporation becomes an instrument for the personal advantage of its parent corporation, stockholders, directors, or officers. When a court applies it, the court is said to pierce the corporate veil and consider the real owners to be parties to the court action. For example, if the owners of a corporation commit criminal acts, the court may disregard the alter ego of the corporation and hold them liable.

bona fide -- literally "good faith"
Another term that has passed on to become a word in English meaning genuine or as represented. 

arguendo -- literally "arguing"
Attorneys occasionally use this term to refer to arguments in their legal documents that what is being written or said is for the purpose of illustration and is not to be considered to bear directly on the matter to be decided. In reality, the attorney or judge wishes the opposing party to consider the argument as though it is controlling. 

Well that's it for this post. You might notice that I haven't gotten much beyond the "a" words, but Latin is sort-of front loaded with "a" terms so that really doesn't mean much. 

Here is the first post in this series.

6 comments:

  1. I would love to be able to pin your articles. They are informative and clearly written. They need an image of some kind before that can happen. You may not want to include an image, but it would be welcome and possible increase your readership.

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    1. Good suggestion. See the updated post.

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  2. Came across a new term the other day: witnessetti. I'm not even convinced that it's a real word, in English or Latin, but the meaning is fairly obvious.

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    1. I looked at a couple of examples and they are apparently OCR misreadings of "witnesseth" Thanks.

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    2. Thanks for that insight James. It was actually a manuscript document (for property transfer) that I was reading, and I would sworn that it said 'witnessetti' since it had an apparent dot over the final letter. After reading your comment, though, then I agree that it actually ends with -eth. It would seem that I'm only as good as OCR software :-(

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