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Thursday, July 28, 2016

Latin Legal Terms for Genealogists -- Part Six

You could almost believe the lawyers used Latin as a way to obfusticate and aggrandize themselves in the eyes of their clients. But surprisingly, few attorneys know any more about Latin and Latin legal terms than the general population. Most of the commonly used Latin legal terms have long since become so Anglicized that many of those using these terms do not even think of them being in a non-English language. During much of the time that the English language was developing, Latin was used by scholars, lawyers and clerics and so many Latin terms passed into common English usage. In addition, we need to remember that English, through the invasion from France in 1066, has a huge Latin-based component. For some idea of the pervasiveness of Latin in English see "Latin Derivatives A to V - Latin is English!" Can you tell how many Latin derived words I have already used in this blog post?

Genealogists have a different challenge. As historians, they encounter older documents that frequently use Latin terms that are no longer currently included in most legal discourse. The simple fact is that the further back you research, especially in legal and church records, the more Latin you will encounter. Hence, this series on Latin terms. It looks like I got to the "s" category. 

sui juris literally "of his own right"
This is a phrase that refers to the ability of a person to manage his or her own affairs. Latin has masculine and feminine declensions, i.e. word endings that reflect gender. In this case, sui is the genitive masculine singular of suus so the term includes references to both males and females similar to the English word "us." 

Individual competency to act has always been an issue in the English/American law system. Today the term "competency" generally refers to a mental state, but historically and legally, the term refers to any disability, including age and gender, that may impair a person from legally conducting their own business. 

subpoena, subpoena duces tecum, subpoena ad testificandum literally "under penalty," "under penalty to bring with you," and "under penalty to be witnessed"
A subpoena is an order issued by the court (judge) to compel some sort of action, usually to provide evidence or testimony. This is one of the legal terms that is used so frequently that it has passed into the English language completely. It is now used as both a noun, i.e. "a subpoena" and a verb, i.e. "to subpoena a document." Today, most commonly, the term refers to a document called a subpoena that is issued by the court requiring the recipient named in the document to appear in court or at a law office to produce evidence, either documents or testimony, such as a deposition. A subpoena is often issued to enforce a notice of deposition, i.e. a notice that a person must appear to give testimony under oath.

sua sponte literally "of its own accord"
This term is used most frequently to refer to actions taken by the court (i.e. the judge) on his or her own motion without the request of one of the litigating parties. For example, if the court (I keep referring to the judge as the "court" but this is how we commonly do that) decides to take some action without having been prompted by the parties, the judge is considered to be acting sua sponte

status quo, status quo ante literally "the state in which" and "the state in which before"
This is another of those Latin terms that has passed into common English usage. In the legal sense, this term refers to an order or judgment of the court requiring a party or parties to be put back into the position they were before the litigation began. 

situs literally "the place"
If you want to show off your linguistic skills, you can throw in a few Latin terms and use situs for "the place." In my experience, there was no real need for this word at all, but it was used occasionally by lawyers who wanted to show they were erudite. 

sine qua non literally "without which, nothing"
I don't believe I have ever heard an attorney actually say this outloud, but it is used infrequently in legal writing even today. I might say that a knowledge of Latin is the sine qua non of historical research and particularly genealogical research. 

sine die literally "without day"
I don't hear this much at all in court, but it is really common in reference to the actions of legislative bodies. It is also used to refer to an action where the court adjourns without setting a date for the next hearing in a series of hearings.  

scienter literally "knowingly"
Most commonly used when referring to actions of a criminal nature. Scienter is often an element in the definition of certain types of crimes. A criminal is considered to have acted with or without scienter or knowledge of the consequences of his or her actions. 

respondeat superior literally "let the matter answer"
In cases involving tort (personal injury) claims, if the wrongdoer was acting in some capacity as an agent for an employer or other such entity, then the theory of respondeat superior will hold the owner, employer or whatever accountable for the damages done by the agent or employee. This is why you can sue the owner of the vehicle in an automobile accident in addition to the driver. 

res judicata literally "a matter judged"
Some of these Latin legal terms are so complicated, it can take years before an attorney fully understands all the consequences that arise as a result of the actions that invoke the particular area of the law. I recently wrote one of the parts of this series about one such legal term, stare decisis. As simply as I can, I suggest that this means that once the court has ruled on a particular issue, subsequent litigation on the same issue is foreclosed. Unfortunately, this is not always cut and dried and a lot of argument and litigation occurs over whether or not any particular ruling is res judicata as to subsequent claims. 

Well, that wraps up this post. There is still a long list of such terms waiting for my comments. 

Here are the previous posts in this series.

1 comment:

  1. James,
    I amazed at all the articles you write and how you keep up with genealogy happenings. I'm starting to get down to the real "Honeymoon Trail" part on my blog. If you have any ancestors who want me to look up on my database, please let me know. I may also have pictures of the inscriptions. I have pictures of many inscriptions at Navajo Springs and Willow Springs.