Gillies No Title
| Jurisdiction | Vermont,United States |
| Citation | Vol. 2002 No. 12 |
| Publication year | 2002 |
December 2002. Gillies No Title
Paul S. Gillies, Esq.
Omnis Gallia est diuisa in tres partes.Julius Caesar, De Gallico Bello
Latin is a dead language, but the dead walk among us, or at least are heard or read, occasionally, in briefs, courtrooms, and offices, when a lawyer or judge needs just the right word or phrase. Somehow Latin just works, where the English equivalent just does not. Latin is used to elevate the proceedings, leaving a little trace of sophistication or erudition in the air.
Of course, that trace disappears when someone asks what that means. Latin can be so powerful, until you have to translate it, and then it just falls flat, like having to explain a joke to somebody who does not get it.
Professions develop their own languages. This practice allows its members to talk among themselves without interruption. It allows them to sound superior to lay persons. Even when speaking in English, the argot of medicine or physics or psychology can alienate the untrained ear, or make you wonder if it is not all gibberish in the end. But Latin in the court-room, Latin in the brief, Latin over lunch, now that is something entirely different. Even if the speaker has no understanding of Latin as a language, even if the words come out with strange inflections or sounds, Latin is magic.
How odd then that there is a statute that forbids it. First enacted in 1779, probably taken from the Connecticut law book of 1750 that served as the model for the first statutes, this law provided, "All writs, processes, declarations, indictments, pleas, answers, replications, and entries in the several courts of justice within this state, shall be in the English language, and no other."(Fn1)This 1779 law was the first rule of civil procedure adopted in Vermont. It is still in place.(Fn2)
England had given up Latin and French in its courts in 1730.(Fn3)The impetus was democratic in instinct, that the courts would be accessible to all, even those without a classical education. But that Omnis Gallia est diuisa in tres partes. Julius Caesar, De Gallico Bello aspiration has not been followed exclusively. When the legislature adopted the English common law as the foundation of law in Vermont in 1787, or more accurately, "so much of the common Law of England as is not repugnant to the Constitution or any act of the Legislature," the door was flung open to the Latin maxims and words that are the language of the common law.(Fn4)
Nathaniel Chipman wrote an essay about that act, in which he cautioned against an unquestioning acceptance of English principles. He particularly warned Vermonters against "unmeaning maxims [which] supplied the place of principles." As an example, he gave, Solvatur eo ligamine, quo ligutur, meaning "Let it be loosened by the same tie by which it is bound." To Chipman it was pompous and void of meaning. He wrote, "Tying and untying, binding and loosing, are different operations, connected only by the subject, and may be performed by different means and different powers. There is no kind of similarity between them." He grieved for the harm this silly phrase had done in actions against debtors.(Fn5)
It was not the Latin that irritated Chipman, but the danger of relying on phrases and words no one quite under-stood as a basis for the law. Chipman was scrupulous not to use more than the most common Latin phrases in his decisions. The only phrase that frequently appears in his early judicial writing is prima facie, meaning at the first face or viewing. Chipman used it, as we do today, as a measure of the sufficiency of a set of facts in a pleading.
In his essays, Chipman enjoyed citing Latin maxims.(Fn6)Like many lawyers of his day and since, if you knew it, you used it, because it increased your authority, and the power of what you wrote. Nothing showed your education as well, or your appreciation for the history of the law.
The earliest records of the Vermont Supreme (then called the Superior) Court are found in Slade's State Papers (1823).(Fn7)Nary a word of Latin despoils these reports, dated 1779 and 1780, other than viz., short for videlicit, meaning that is to say or namely, and is used as a colon before explaining more specifically what is meant after a general statement.
The 1779 law was incorporated into a 1782 act regulating civil procedure.(Fn8)That act amplified the promise of accessibility by prohibiting courts from denying people justice "where the person and case may be rightly understood by the Court, nor through defect or want of form only."(Fn9)In 1787, a set of forms for civil causes was adopted by the Legislature. (Fn10)They are found today as an appendix to the civil rules. No Latin word appears in any of these forms.
A 1797 update of the laws relating to judicial proceedings expanded the concept even further by urging judges to amend every imperfection, defect, or want of form, to save it from an objection because of the words used. But the 1797 act made one exception, and that was in cases of demurrer, for which little sympathy would be shown, if the party failed to say it right.(Fn11)
Judge Royall Tyler was the first member of the Vermont Supreme Court to quote Latin extensively in his decisions. In State v. Hoggs & Strong (1803), Tyler included long Latin quotes from Cicero and Quintilian in his footnotes, and did not translate them into English.(Fn12)After Tyler, those who knew Latin, who sat on the bench or appeared before the bar, used it, sometimes excessively, sometimes mistakenly, and some never intended to use it at all.
Judge Titus Hutchinson, in State v. Hodgeden (1831), refused to invalidate an...
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