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The Jersey Law Review – February 2006
SHORTER ARTICLES AND NOTES
THE LANGUAGE OF THE LAW: A POSTCRIPT
Timothy Hanson
1 Since the publication of this author’s article entitled The Language of the law: the importance of French[1] and Professor Trotter’s Commentary on a Jersey conveyance,[2] the Jersey Legal Information Board has published a consultation document issued by its Public Registry Reform Project Board (“the JLIB Project Board”) that proposes that “all contracts and other documents which are required to be registered in the Public Registry be written in English rather than in French.” Continuing with the theme of these earlier articles, this postscript makes certain brief observations upon this development and makes a comparison with a very similar transition in language that occurred in England several centuries ago.
The consultation document of the Public Registry Reform Project Board
2 The consultation document builds upon the recommendation made by a working party on the subject during 1999 and by the Jersey Law Commission during 2002.[3] Essentially, the aim is to make future documents that are recorded in the Public Registry more accessible to the public. If adopted, such a proposal will finally remove the current practice whereby a conveyance (or more accurately, a contrat héréditaire) is expressed and recorded in the French language, albeit often containing various words and phrases of an obscure or archaic nature that would not be readily understood by modern day French speakers. The language so employed has therefore been described as “Jersey Legal French.”[4] Instead, it is proposed that such contracts will be expressed in the English language which is the main language now spoken in the Island.
3 This latest consultation document contains six schedules within which we find various illustrations of how existing clauses might be translated into English and a glossary of terms that give the English equivalent to the French words that are most frequently encountered. It is quite apparent from these documents that a great deal of care has been taken in attempting to translate accurately French terms that have acquired a legal or technical meaning. However, it is clear that such a process cannot be entirely successful and this is acknowledged in the consultation document itself. For example, the occasional use of the original French words in parentheses suggests some concern with the English terminology that is offered up in translation. Accordingly, we find “joint tenants” followed by (conjointement par ensemble pour eux, le survivant d'eux et les hoirs ou ayant droit de tel survivant) or the phrase “tenants in common and in equal shares” followed by (moitié par moitié en indivis). Further, by the provision in the (limited) glossary that the French words take precedence over their English counterparts, it is clear that the authors anticipate the loss or distortion of the meaning of some French terms when they are translated into English.
The English experience: Sir Edward Coke
4 The JLIB Project Board can, however, draw some comfort from the experience in England of a similar process whereby the laws and customs that had been previously expressed in French developed into English. As was made clear in this author’s article in last year’s Review, such a process ultimately led to the incorporation into English of numerous French terms. In large part, this had to be the case because there were no pre-existing alternatives that could otherwise have been adopted.[5] Sir Edward Coke’s Commentary on Littleton illustrates well the difficulty that is faced by the JLIB Project Board and, as we see below, his work can provide some valuable guidance to the Board as to the proper limits of any attempt at translation.
5 Sir Edward Coke was called to the English bar in 1578 and by 1606 had become Chief Justice of Common Pleas. In 1628 The First Part of the Institutes of the Laws of England: or a Commentary upon Littleton was published, in which Coke translated into English the earlier work on estates in land by Sir Thomas Littleton (1422-1481) entitled Tenures.[6] Littleton’s work, however, had been written in French. Coke’s achievement was in providing in English what subsequently became the standard text on English property law until the 19th century. His justification for writing his book in the English language and the dangers inherent in providing a translation of the earlier work of Littleton are conveyed in the following passage that is taken from his Preface[7] -
“This Part we have (and not without precedent) published in English, for that they are an Introduction to the Knowledge of the National Law of the Realm; a Work necessary, and yet heretofore not undertaken by any, albeit in all other Professions there are the like. We have left our Author[8] to speak his own Language and have translated him into English, to the end, that any of the Nobility or Gentry of this Realm, or of any other Estate or Profession whatsoever, that will be pleased to read him and these Institutes, may understand the Language wherein they are written.
I cannot conjecture that the general communicating of these Laws in the English tongue can work any inconvenience, but introduce great profit, seeing that Ignorantia Juris non excusat, Ignorance of the Law excuseth not. And herein I am justified by the Wisdom of a Parliament; the Words whereof be: ‘That the Laws and Customs of this Realm the rather should be reasonably perceived and known, and better understood by the Tongue used in this Realm, and by so much every Man might the better keep, save and defend his Heritage and Possessions. And in divers Regions and Countries, where the King, the Nobles, and other of the said Realm have been, good Governance and full Right is done to every Man, because that the Law and Customs be learned and used in the Tongue of the Country:’ As more at large by the said Act,[9] and the Purview thereof may appear: Et neminem oportet esse sapientiorem Legibus, No Man ought to be wiser than the Law.
And true it is that our Books of Reports and Statutes, in ancient Times were written in such French as in those Times was commonly spoken and written by the French themselves. But this kind of French that our Author hath used, is most commonly written and read, and very rarely spoken, and therefore cannot be either pure, or well pronounced. Yet the change thereof (having been so long customed) should be without any Profit, but not without great danger and difficulty: for so many ancient Terms and Words drawn from that legal French, are grown to be vocabula artis, Vocables of Art, so apt and significant to express the true sense of the Laws, and are so woven in the Laws themselves, as it is in a manner impossible to change them, neither ought legal Terms to be changed.”
6 Coke’s cautious handling of French terms of art can be readily seen from his Commentary. For example, we see that Littleton refers in French to feoffement en mortgage [10] being one such term of art but to which Coke offers no material change, translating it as “Feoffment in Mortgage.” Similarly, joyntenāts[11] and jointenancie[12] merely become “jointenants” and “jointenancy” (which in more modern days has come to be spelt as two separate words), while tenants en common[13] scarcely changes to “tenants in common.” Coke offers no apology for retaining such terms of art (and which seem so familiar to us now) but, in large part, there was probably no viable alternative to the continued use of such terminology.
7 The reasons given by Coke in 1628 for English laws and customs to be understood are as forceful now in Jersey as they were in England during the 17th century. Nevertheless, the caution that he urged in respect of such a process, and indeed his view that terms of art should not be changed, similarly apply. One can, therefore, readily understand and sympathise with the evident desire of the JLIB Project Board to “prohibit” the use of English related terms of art in replacement for the correct Jersey terminology. For instance in the draft Practice Direction set out in schedule E to the consultation document, the use of the English term of “mortgage” in translation for hypothèque (or “hypothec”) is prohibited as is the use of the English “easement” for the more expansive Jersey term servitude.[14] Whilst not invalidating the aim of the JLIB Project Board (and, indeed, this author supports such efforts), it is important to appreciate that the indiscriminate use of English terminology has already gained a foothold in our law. For example, Practice Direction FD 05/8 refers to “mortgage” as part of a party’s affidavit of means in divorce cases, while the compilers of the Jersey Law Reports make extensive reference in their subject matter index to “easements”, albeit under the general heading of “servitudes.” The draft prohibition, therefore, may appear a little hollow unless steps are also to taken to stop the use of such terminology in other areas of our Law.
Summary
8 It is clear from the consultation document that the registration of documents in the English language will shortly become a requirement. Such a development would mark yet another step in the seemingly irrepressible advance of the English language in Jersey. Whilst we know from the report of the Civil Commissioners in 1861 that “all proceedings [were then] conducted in the French language,”[15] less than one hundred years later the position had altered. Rules made pursuant to article 13 of the Royal Court (Jersey) Law 1948 permitted the use of English in Court as “optional”[16] while an “English style of judgment” was introduced in 1950[17] and subsequent law reporting soon made redundant the pre-existing Table des Décisions. However, it was not until a little later, in 1963, that pleadings came to be expressed in English.[18] The English language has come to dominate the Jersey legal process and even the heavily fortified walls of conveyancing look likely to fall before the year is out. Perhaps of more concern, however, is the extent to which Jersey law and culture will change and develop as a matter of substance now that this Trojan horse of language has been allowed entry. As is suggested by the prohibitions contained in the draft Practice Direction of the JLIB Project Board, there must be a fear that Jersey will drift ever closer to English legal thinking rather than remaining true to its Norman roots.
Timothy Hanson is a barrister and associate member of Number Five Chambers, Birmingham; an advocate of the Royal Court of Jersey and a partner in the law firm Hanson Renouf, 19 Britannia Place, St Helier, Jersey JE2 4SU.
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