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

Wednesday, August 10, 2016

Latin Legal Terms for Genealogists -- Part Seven

Any self-identified group of people, anywhere on the earth, will develop its own particular language forms. These specialized terms do not usually rise to the level of a separate language. We call these particular words and expressions "jargon." It might help to put the use of jargon into the context of more general language usage. 

A 20th Century linguist named, Edward Sapir, who worked under another distinguished linguist, Franz Boas, is sometimes recognized for his work on language drift or the unconscious changes in natural language over time. While I was studying linguistics at the University of Utah, we worked on a project in lexicostatistics or the measurement of word changes both temporally and geographically. See:
Wick R. Miller, James L. Tanner and Lawrence P. Foley, A Lexicostatistic Study of Shoshoni DialectsAnthropological Linguistics, Vol. 13, No. 4 (Apr., 1971), pp. 142-164 Published by: The Trustees of Indiana University on behalf ofAnthropological LinguisticsStable URL:
If two groups of people who speak the same language are separated, over time, their languages will begin to evolve until their are detectable regional differences. This is a natural and universal process. Everything about a language slowly changes; the sounds, the words used and the meanings of the words used. When some of the speakers of a particular language develop a distinctive enough way of speaking, we call this particular form of language a "dialect." If the ways of speaking diverge enough, we classify the differences as different languages. Depending on the time depth of the changes, i.e. the longer the separation the greater the differences, the speakers of one language can understand more or less of the language used by other groups.

Linguists classify languages according to different features. This is an area of much discussion and a large amount of disagreement and controversy. See "Classification of Human Languages."

Jargon crosses both dialectal and language boundaries. That is why you will find Latin terms used in the legal and church documents of different countries. Latin is usually considered to be a "dead language" in the sense that there are no longer any native speakers of the language or those who learn the language as children in their home. Originally, Latin was the language of a small group of Indo-European settlers who occupied a small area along the Tiber river in what is now Italy. Because of the rise of the Roman Empire, Latin became a dominant commercial and social language. Many of the modern languages have roots in Latin either in whole or in part, including Spanish, Italian, French, etc. usually collectively referred to as the Romance languages. The English language has also been heavily influenced both directly and indirectly by Latin.

Lawyers, medical doctors, academics and clerics adopted short Latin phrases over the years as "jargon" terms. It has been said that learning to be a lawyer means learning to make a noise like a lawyer and to some extent this is partially true. Jargon is often used by groups of people to distinguish themselves from others and to impress people with their "knowledge."

While doing historical research, genealogists confront jargon in many forms. Commonly, church records contain a large measure of jargon. In this particular series, I have been examining the use of Latin legal jargon. So here is my list for this post. I will try not to repeat some of my previous writing. I looks like I got stuck on the letter "q" this time.

res judicata literally "a matter judged"
This is another of those Latin terms that has passed into the English language. Lawyers use this term so frequently that it has lost almost all of its Latin connotation and it is said as one word. The legal principle for which it stands is extremely complicated and the source of endless arguments in some court actions. The idea is that once a claim in a particular court action has been decided by the court (remember to insert the word "judge") it is binding on the parties to the action in subsequent actions where the same claim may arise. The argument goes something like "because the court decided this issue previously, the ruling is res judicata and cannot be raised in the present lawsuit." The parties then argue whether or not the claim is different enough from the claim made previously to withstand a ruling of res judicata preventing the party from making the claim in the new action. Here is a quote from a court case concerning this type of ruling:
The federal courts have traditionally adhered to the related doctrines of res judicata and collateral estoppel. Under res judicata, a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action. Cromwell v. County of Sac, 94 U. S. 351, 352. Under collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case. Montana v.United States, 440 U. S. 147, 153.[5] As this Court and other courts have often recognized, res judicata and collateral estoppel relieve parties of the cost and vexation of multiple lawsuits, conserve judicial resources, and, by preventing inconsistent decisions, encourage reliance on adjudication. Id., at 153-154. See Allen et al. v. McCurry, 449 U.S. 90, Supreme Court (1980). 
Learning the subtle distinctions in the law can take a long time.

res literally "the thing, matter, issue, affair"
Yes, this is the same word used in res judicata, but in this case the word has a very general meaning and is usually thrown into legal briefs for the express purpose of trying to show that the lawyer knows more than his or her opponent.

rebus sic stantibus literally "things thus standing"
OK, now I have to admit that this is a term I would have to look up if I came across it in a legal proceeding. I decided to throw a few of these more obscure terms into the mix to illustrate to any lawyers who happen to be reading this series of posts that there are some terms that even they may not immediately be able to understand. Notwithstanding this statement, the term actually appears in court cases from time to time. Here is an example from another Supreme Court case. If you are a Supreme Court Justice, you can say pretty much what you like and throwing in Latin phrases is part of the game.
The doctrine of rebus sic stantibus does recognize that a nation that is party to a treaty might conceivably invoke changed circumstances as an excuse for terminating its obligations under the treaty. But when the parties to a treaty continue to assert its vitality a private person who finds the continued existence of the treaty inconvenient may not invoke the doctrine on their behalf. See Trans World Airlines, Inc. v. Franklin Mint Corp. et al., 466 U.S. 243, Supreme Court 1984. 
rationae soli literally "by reason of the soil"
Here we go to the Florida Supreme Court on this one also. Here is the quote and definition at the same time.
The exclusive common law right of a landowner to take game on his land, known as property ratione soli, was defined by Lord Westberry in an early English case as "the common law right which every owner of land has to kill and take such animals ferae naturae as may from time to time be found on his land." This right has been recognized throughout the history of common law, with one exception: Following the Norman Conquest the King contended that he was lord paramount of the field, possessed of the right to the universal soil and of the exclusive right to take the game, but the irate landowners, vehemently objecting, quickly and decisively recaptured their rights and reestablished the common law. See Julian ALFORD, as Chairman, T. Payne Kelly, Jr., Charles L. Hoffman, Thomas W. McBroom and Don Southwell, as Members of and constituting the Game and Fresh Water Fish Commission of the State of Florida; A.D. Aldrich, as Director of said Commission; Mack Hodges and Joe Shepard, Appellants, v. K.O. FINCH, Howard P. Rives, Charles A. Johnson, Jr., R-J Farms, Inc., a Florida corporation, Levy Land Co., Inc., a Florida corporation, Appellees. 155 So.2nd 790 (1963)
I put the whole caption in the citation to show how complicated this can become. I also included this quote because it illustrates the fact that the courts in the United States really to go back over a thousand years for precedents in the law.

quod est necessarium est licitum literally "What is necessary is lawful"
This would seem to be a good argument except that it is usually rejected by the courts. I guess I decided that the court cases illustrated the meaning and the use of these terms better, especially when they were less commonly used. But in this case, the phrase did not show up in any of the vast numbers of cases in the United States. It turns out to be attributed to legal documents but not used. This also illustrates an important point, throwing in a Latin phrase may impress some people, but usually in my experience, simply showed that you didn't have any real support for your arguments.

quoad hoc literally "as to this"
Another useful phrase if you want to appear to know what you are talking about. The important thing to remember is that genealogists will run into this stuff when they are doing research.

quo warranto literally "by what warrant"
I am back to very common legal terms with this one although I would guess that unless you were a trial attorney and probably involved in the criminal justice system you may not know this term well. This term introduces the concept of a "writ" or a form of written command in the name of a court or other legal authority to act, or abstain from acting, in some way. Historically, English law cases were initiated and maintained by a writs. In the United States, the old practice of "writs" has mostly disappeared, but it is not impossible that an attorney could bring a writ of quo warranto, usually to challenge the right of a person to hold a government office or to act in a particular way. Here is an example that would probably give a first year law student the fits:
In the course of his opinion the District Judge suggested that the assault on the assignment and on the Senior Circuit Judge's authority to act under it "sounded in quo warranto," and so might possibly be regarded as being direct rather than collateral. But the suggestion was ill-grounded. Quo warranto is addressed to preventing a continued exercise of authority unlawfully asserted, not to a correction of what already has been done under it or to a vindication of private rights. It is an extraordinary proceeding, prerogative in nature, and in this instance could have been brought by the United States, and by it only, for there is no statute delegating to an individual the right to resort to it. Besides, such a proceeding, to reach its objective in a situation like that here disclosed, must be brought against the person who is charged with exercising an office or authority without lawful right. The Johnson suit was not against the judge acting under the assignment, but was wholly between others who were private litigants. So, granting that an attack in a quo warranto proceeding would have been direct, and not merely collateral, it must be held that the suit before the District Judge was not such a proceeding. See Johnson v. Manhattan R. Co., 289 US 479 - Supreme Court 1933.
quo ante literally "as before"
This isn't really a legal term per se. It simply means that whatever is going on now is returned to a previous state of affairs but you do see this sprinkled around in court cases from time to time.

quid pro quo literally "this for that"
Another Latin phrase that has almost complete passed into English. Generally, the term is used in contract or sales situations where there is to be an equal exchange of goods or services.

qui tam literally an abbreviation of "qui tam pro domino rege quam pro se ipso in hac parte sequitur" which means "who pursues in this action as much for the king as himself."
If you really want to impress your friends, you can memorize some the longer Latin quotes and scatter them in your everyday conversation. This will probably let you know quickly who your friends really are. In a qui tam action, one who assists the prosecution of a case is entitled to a proportion of any fines or penalties assessed. I must admit, I don't believe I have ever heard of this before writing this post.

Well, this series could go on for a long time since there are a whole lot of Latin terms and phrases. Check out the next one to pop up.

Here are the previous posts in this series.

No comments:

Post a Comment