*ÚV
the artificial stress on the second member, e.
the artificial stress on the second member, e.
Cambridge History of English Literature - 1908 - v01
Never-
theless, that is a remarkable sentence coming from one who lived
on until 1734: ‘Really the Law is scarcely expressible properly in
English. '
Had it been written some centuries earlier it would have been
very true, and its truth would have evaporated very slowly. The
Act of 1362, which tried to substitute la lange du paiis for la lange
francais, qest trope desconue as the oral language of the courts, is
an important historical landmark. But we know that it was
1 Roger North, Lives of the Norths, 1826, 1, 30.
· Lives of the Northe, I, 33; Roger North, 4 Discourse on the Study of the Laws,
1824, p. 13.
3 36 Edw. III. stat. c. 15 (Commissioners' edition). Observe francais, not
francaise. Having written trop, the scribe puts a tittle over the p, which seems to
## p. 409 (#429) ############################################
Retention of French in the Courts 409
tardily obeyed, and indeed it attempted the impossible. How tardy
the obedience was we cannot precisely tell, for the history of this
matter is involved with the insufficiently explored history of
written pleadings. Apparently French remained the language of
'pleadings' properly so called, while English became the language
of that 'argument' which was slowly differentiated from out of the
mixed process of arguing and pleading which is represented to us
by the Year Books Fortescue's words about this matter are well
known? In 1549 Archbishop Cranmer, contending with the rebels
of Devonshire over the propriety of using English speech in the
services of the Church, said, 'I have heard suitors murmur at the
bar because their attornies pleaded their causes in the French
tongue which they understood not? ' In Henry VIII's day, when
the advocates of a reception of Roman law could denounce thys
barbarouse tong and Old French, whych now seruyth to no purpose
else,' moderate reformers of the Inns of Court were urging as the
true remedy that students should be taught to plead in good
French: the sort of French, we may suppose, that John Palsgrave,
natyf de Londres et gradué de Paris, was teaching No doubt
they felt with Roger North that really the Law is scarcely
expressible properly in English
The law was not expressible properly in English until the lange
du paiis had appropriated to itself scores of French words; we may
go near to saying that it had to borrow a word corresponding to
almost every legal concept that had as yet been fashioned. Time
was when the Englishman who in his English talk used such a
word as 'ancestor' or 'heir,' such a word as 'descend,' 'revert,' or
‘remain,' must have felt that he was levying an enforced loan.
For a while the charge of speaking a barbarous jargon would fall
rather upon those who were making countless English words by the
simple method of stealing than upon those whose French, though
it might be of a colonial type, had taken next to nothing from the
vulgar tongue. Very gradually the relation between the two
languages was reversed. An Act of Parliament could do little
to hasten the process ; more might be done by patriotic school-
masters.
When the history of English law is contrasted with the history
show that he meant trope. The word tittle is useful. Thereby we mean '& small line
drawn over an abridged word, to supply letters wanting' (Cotgrave). It is the Spanish
tilde, which we see, e. g. in doña.
| Fortescue de Laudibus, c. 48.
? Cranmer, Remains (Parker Soc. ), p. 170.
3 Maitland, English Law and the Renaissance, pp. 43, 72.
## p. 410 (#430) ############################################
410 The Anglo-French Law Language
of its next of kin, the existence of law French is too often forgotten.
It is forgotten that during the later middle age English lawyers
enjoyed the inestimable advantage of being able to make a technical
language. And a highly technical language they made. To take
one example, let us think for a moment of an heir in tail rebutted
from his formedon by a lineal warranty with descended assets. '
Precise ideas are here expressed in precise terms, every one of
which is French: the geometer or the chemist could hardly wish
for terms that are more exact or less liable to have their edges
worn away by the vulgar. Good came of this and evil. Let us dwell
for a moment on an important consequence. We have known it
put by a learned foreigner as a paradox that in the critical
sixteenth century the national system of jurisprudence which
showed the stoutest nationalism was a system that was hardly
expressible in the national language. But is there a paradox here?
English law was tough and impervious to foreign influence because
it was highly technical, and it was highly technical because English
lawyers had been able to make a vocabulary, to define their
concepts, to think sharply as the man of science thinks. It would
not be a popular doctrine that the Englishry of English law was
secured by la lange francais gest trope desconue; but does it not
seem likely that if English law had been more homely, more volks-
thümlich, Romanism would have swept the board in England as it
swept the board in Germany ? . . .
Now, as regards vocabulary, there is a striking contrast between
the earliest and the latest year books. A single case of Henry VIII's
day shows us 'deer, hound, otters, foxes, fowl, tame, thrush, keeper,
hunting. ' We see that already the reporter was short of French
words which would denote common objects of the country and
gentlemanly sport. What is yet more remarkable, he admits
'owner? ' But in Edward II's day the educated Englishman was
far more likely to introduce French words into his English than
English words into his French. The English lawyer's French
vocabulary was pure and sufficiently copious. It is fairly certain
that by this time his 'cradle speech' was English; but he had not
been taught English, and he had been taught French, the language
of good society. Even as a little boy he had been taught his
moun et ma, toun et ta, soun et sa. Of our reporters we may be
far more certain that they could rapidly write French of a sort
than that they had ever written an English sentence, John of
* Y. B. 12 Hen. VIII, f. 3 (Trin. pl. 8); Pollock, First Book of Jurisprudence, 281.
? See the treatise of Walter of Biblesworth in Wrigbt, Vocabularies, 1, 144.
## p. 411 (#431) ############################################
The Making of Legal Terms
411
Cornwall and Richard Penkrich had yet to labour in the grammar
schools.
Let us look for a moment at some of the words which ‘lay in
the mouths' of our serjeants and judges: words descriptive of
logical and argumentative processes: words that in course of
time would be heard far outside the courts of law. We see 'to
allege, to aver, to assert, to affirm, to avow, to suppose, to
surmise (surmettre), to certify, to maintain, to doubt, to deny,
to except (excepcioner), to demur, to determine, to reply, to
traverse, to join issue, to try, to examine, to prove. ' We see
'a debate, a reason, a premiss, a conclusion, a distinction, an
affirmative, a negative, a maxim, a suggestion. ' We see 're-
pugnant, contrariant, discordant. ' We see 'impertinent' and
'inconvenient' in their good old senses. We even see 'sophistry. '
Our French-speaking, French-thinking lawyers were the main
agents in the distribution of all this verbal and intellectual
wealth. While as get there was little science and no popular
science, the lawyer mediated between the abstract Latin logic
of the schoolmen and the concrete needs and homely talk of
gross, unschooled mankind Law was the point where life and
logic met.
And the lawyer was liberally exercising his right to make
terms of art, and yet, if we mistake not, he did this in a manner
sufficiently sanctioned by the genius of the language. Old French
allowed a free conversion of infinitives into substantives. Some of
the commonest nouns in the modern language have been infinitives :
diner, déjeuner, souper, pouvoir, devoir, plaisir; and in the list
whence we take these examples we see un manoir and un
plaidoyer. English legal language contains many words that
were thus made: 'a voucher, an ouster, a disclaimer, an inter-
pleader, a demurrer, a cesser, an estover, a merger, a remitter,
a render, a tender, an attainder, a joinder, a rejoinder,' though
in some cases the process has been obscured. . . . Were we still 'to
pray oyer of a bond,' we should use a debased infinitive, and
perhaps it is well that nowadays we seldom hear of 'a possibility
of reverter' lest a pedant might say that revertir were better.
Even the Latin roll felt this French influence: ‘his voucher'
is vocare suum, and recuperare suum is ‘his recovery. '
But the most interesting specimen in our legal vocabulary of a
French infinitive is ‘remainder. In Edward II's day name and
thing were coming to the forefront of legal practice. The name
was in the making. When he was distinguishing the three writs of
## p. 412 (#432) ############################################
412 The Anglo-French Law Language
formedon (or better of forme de doun) it was common for the
lawyer to slip into Latin and to say en le descendere, en le reverti,
en le remanere. But the French infinitives also were being used,
and le remeindre (the 'to remain,' the 'to stay out' instead of
the reversion or coming back) was soon to be a well-known sub-
stantive. It was not confused with a remenaunt, a remnant, a
part which remains when part is gone. What remained, what
stayed out instead of coming back, was the land'. In French
translations of such deeds as create remainders it is about as
common to see the Latin remanere rendered by demorer as to see
an employment of remeindre, and it is little more than an accident
that we do not call a remainder a demurrer and a demurrer
a remainder. In both cases there is a 'to abide'; in the one the
land abides for the remainder-man (celui a qi le remeindre se
tailla); in the other case the pleaders express their intention of
dwelling upon what they have said, of abiding by what they have
pleaded, and they abide the judgment of the court. When a cause
'stands over,' as we say, our ancestors would say in Latin that it
remains, and in French that it demurs (loquela remanet: la parole
demoert): 'the parol demurs,' the case is 'made a remanet. '
The differentiation and specification of "remain' and 'demur,'
'remainder' and 'demurrer,' is an instance of good technical
work. . . .
We might dwell at some length on the healthy processes which
were determining the sense of words. There is, for example,
tailler (to cut or carve), which can be used of the action of one
who shapes or, as we say, 'limits' a gift in some special manner,
but more especially if the result of his cutting and carving is a
‘tailed fee. ' There is assez (enough) with a strange destiny before
it, since it is to engender a singular 'asset. ' We might endeavour
to explain how, under the influence of the deponent verbs sequi
and prosequi which appear upon the Latin roll, the phrase il fut
nounsuivy (he was non-suited) is a nearer equivalent for il ne
suivit pas than for il ne fut pas suivi. Of our lawyers as word-
makers, phrase-makers, thought-makers, much might be said. "
1 Pollock and Maitland, Hist. Eng. Law, u, 21; Challis, Law of Real Property,
And ed. p. 69.
## p. 413 (#433) ############################################
APPENDIX TO CHAPTER VII
THE OLD ENGLISH SUNG, OR BALLAD, METRE
[It has been thought desirable to print in this place the following account of
Old English metre as adjusted on the stress-system to ballads. ]
The chief characteristio of the old popular metre, which suddenly assumes
such prominence in later Old English literature, is that in each half-line, instead
of the two beats of the rhetorical metre, we have four beats, two of which
are chief beats with full-stress, while the other two are half-stress. Between
every two of the four beats there is, generally, an unstressed sinking. Elision
of the sinking may take place in any position, and is usual before a final
half-stress.
The Old English sung, or ballad, metre is, fundamentally, a four-beat
rhythm which must end in a stress. It differs from the ordinary four-foot
ballad verse in this, that a far greater difference is postulated between the
force of the four stresses. In any natural English four-beat doggerel,
granted it be not of expert composition, we come upon the distinction of
full-stresses (%) and minor stresses, here called half-stresses (1); e. g.
The kíng was in the counting-house.
In Old English verse, these stresses and half-stresses could not be arranged
as one liked: the line had to be balanced.
Fully balanced lines can be divided thus:
A. (* x) 4(xx) +(x) x + (x)
Modern English forms:
The kíng was in the counting-house
The queen was in the parlour.
Old English examples:
and þa éarme mèn hit beceórodon
his rice mèn hit máendòn.
B. (x x) = x(x) 4(x x) + x(x) 4.
Examples in modern English are rare. Of, the inner-rimed line:
Jack and Jill went up the hill.
Old English example:
në wearð dréorlicră daed.
## p. 414 (#434) ############################################
414
Appendix to
C. (*1x) = x(x) <<(x).
Examples in modern English nursery songs are extremely rare, because of
the modern dislike to two chief stresses coming together,
Old English example:
paiet hệ selbéodigė.
AC. (x1x) = x(x) < * (*) 4(x) .
Examples in modern English nursery songs are extremely numerous:
and in my lády's chamber,
sing a song of síxpence.
Old English examples:
He weărț wídě gểond Þéodland
and wurdên unděrbéoddě.
D. Imperfectly balanced form: -(x x) (x)*(x).
This form always tends to become
<(xx) = x + (x) è or + (x) x + (x) 4(x)<.
Modern English:
four and twenty blackbirds
tends to become
four and twenty bláckbirds.
Old English:
and útlaendisce.
E. Perfectly balanced form: -(x ) = x(x)+(x) * t
Modern English (with inner rime):
Jáck fell down and broke his crown.
Old English:
х
x
se cyng waes swa swide stearo.
The Old English ballad verse, in contradistinction to its modern repre-
sentative, was quantitative in all four stresses.
That is to say, a stress had to fall either on one long syllable or two short
ones. According to Lachmann's original theory, which he applied to some
High German ballads, but which must be applied to all Old English ballads,
the stress then fell gradually throughout the length of the two syllables,
e. g.
and
Ắc Gód wino hìně på gelette,
Goděo wíběr Baocăn | Gtódės lăgě bráốcon.
## p. 415 (#435) ############################################
Chapter VII
415
This is most clearly seen in B and E, where two shorts so used pair
absolutely with final stress and half-stress, e. g.
ran
bao hề sa tế bề tấm harắn
pet tỉ môstên treo faran,
X X XÚvx x
he swa swiðe lufode ba hea deor
x x 1x, üve
swilce he waere heora faeder.
But, at the end of the line, the quality of a syllable constituting a half-stress
was indifferent, the pause lending its support; a half-stress could not at that
place be divided into two short syllables (since the second would perforce
have to fall too low), but only a full-stress. Cf. the example referred to above:
his rice men hît maendon.
It seems, then, that final feet (with indifference as to the quantity of the
half-stress) could be carried over into the middle of a half-line before either a
real or artificial inner pause or a change of musical melody
. . x x º x º tº
wide 1 side |ba hwile bel he leofode,
Eac he saette be pam haran.
2. The normal (inner) foot has a maximum of two unstressed syllables
and one stressed long (or two short) syllable(s).
B. Every foot is subject to complete elision of unstressed syllables-but
complete elision in a whole half-line is extremely rare.
Y. Between a full-stress and a half-stress complete elision is frequent and
more than one syllable unusual, e. g.
. X e
Xus
and God him gendě (no sinking)
på hvít pě bě leófödě (one syllable).
Modern English example:
when in came a blackbird.
On the other hand, after a half-stress before a full-stress, complete elision
is, practically, never found. In the overwhelming majority of cases (c. 98 or
99%) one sinking syllable occurs, though two are found very frequently.
The number of exceptions is negligible:
X X Jú X X,
ắc Gódwině hřně på gěléttă (two syllables)
ne wearð dréorlicre daed (one syllable)
The first foot was composed of the sinking, called the anacrusis or
auftakt, and the first stress. In the earliest form of the strophe it would
seem to have been the rule that the anacrusis of the first line of the couplet
should be one syllable longer than that of the second and should never exceed
two syllables; the dissyllabio anacrusis was, apparently, used to mark the
beginning of a new passage.
1 For a further discussion of this subject, the reader may be referred to a paper
by the present writer, read before the London Philological Society, 7 June 1907.
## p. 416 (#436) ############################################
416
Appendix to
In the poem of 959, out of some 24 couplets, 13 have the anacrusis of the
first line longer than that of the second; in 8 the anacruses are equal (or
both lacking), in only three cases is there a monosyllabio anacrusis in the
second line and none in the first, e. g.
x x Tv x x x x , ,
Jon his dagum hỉt godode georne
(Aňa Gód him geuče,
Sberet hos wúnode iň sibbe
X X X Úvi
pa hwile pe | he leofode.
The fourth, or final, foot differs from the others in the following
characteristic:
No final sinking (**) was allowed, i. e. feminine rime did not exist in our
sense, both such syllables being stressed.
Hence the line could only end in a stress whether full or half in strength.
In the falling types A, AC, C, D, the last foot usually consists of a single
stressed syllable:
She saette mycel déorfrio
land hp laegal lagi Perwiờ.
A. and etód him geudě.
C. sy Dân Dénở sớmon.
AC. gie hi wólaốn lábban.
D. hiš máegểs Éadwardès.
Cf. the modern English nursery rimes:
The maid was in the garden
Took him by the left leg
as chanted by mothers to their children with the heavy final half-stress.
With the ending juu.
(It must be noted that in Old English ballad verse a single long syllable
is fairly often divided into ú - or j: as well as into úų. This may be due to
*.
*ÚV
the artificial stress on the second member, e. g. A, swidost para cyninga. )
A. på hvílo pě, bě leófódo
AC. Her com Éadwård sépěling
C. and bě pár wúnódě.
Much less frequently the ending + x + is found in A, AC, C, e. g.
A. Aélfere caldărman
## p. 417 (#437) ############################################
Chapter VII
417
AC. wală, þaét waềs hréowtło sit
0. pået aélpéodivě.
From this last two are derived the final feet of such nursery rime rhythms as
wasn't that a dainty dish. ”
In the rising types B and E the usual form is one unstressed syllable and
a final full-stress, which may be divided into two syllables. The ending with
a dissyllabic sinking before the final stress is rarely met with in B and E.
B. Bắa hìa gorerần hề tồarat
E. sẽ cyng waes swă swidă stearo.
With anapaestic ending
E. Zo be úplica wrèceñd håfað hảs žemynd.
We have several examples of the verse form + x tubu:
on paere earmăn býring
to săn láoan Góiề.
We have, further, a number of clear instances of three-beat short verses,
perhaps originally meant for strophic use, in conjunction with four-beat
Terses, e. g.
i X to
cinges geseon
þaet gedon wearð.
It is a question whether every one of those so-called four-beat verses
without any sinkings (even between half-stress and subsequent full-stress)
is not to be reckoned here as three-beat.
Side by side with the introduction of this metre into literary use, there
are also to be found instances of rime and assonance.
The use of rime and assonance tends to destroy the old system of linked
half-lines, but in two different directions. First, in proportion as rime and
assonance grow in power, alliteration, which had originally been the con-
necting link between the two half-lines, diminished in importance, until
eventually it was used mainly within each half-line as an adornment.
Different alliterating letters occurred in each half-line, and rime or assonance
suoceeded as a bond.
Hence, the half-lines became independent and the four-beat couplet
resulted. Secondly, rime or assonance was further used to link the full long
lines into couplets. These long lines were then felt to be too long, and a
simple means of avoiding such undue length was to use either a weak four-
beat half-line or, more usually, a three-beat half-line together with a full
four-beat half-line (of six to eight syllables) to make up the whole. A new
line with a variable caesura, either after the 3rd or the 4th beat, was thus
constructed. Examples are found in the poem in the Chronicle under 1057, e. g.
Her com Eádward Aépeling | to Englalóndo
E. L. Lo
## p. 418 (#438) ############################################
418
Appendix to Chapter VII
and
Eadmund cing | Trensid waes geclypod.
But it must not be forgotten that both strophic forms are usually found in
these Old English poems without the need of either rime, assonance or
alliteration. The strophio system seems to have been originally, perhaps,
purely rhythmic, and rime, assonance and alliteration merely its adornments.
Lastly, this sung verse is found in other Germanic languages as well as in
Old English. The most notable instance of its employment elsewhere is in
the famous paraphrase poem of Otfried, who expressly repudiates the solemn
rhetorical metre, which must have smacked to him of the worship of the
heathen gods. This metre could not have been of Otfried's own composition,
since it was not only the metre of the Nibelungenlied but the basic metre of
other German ballad poems, and is identical with the poems in the Chronicle.
The following examples of Frisian metric forms seem to show that these also
were based on the same old Germanio metrical scheme, originally the common
property of all the Teutonic peoples. It is remarkable that the Old Frisian
forms (which do not, of course, correspond to the Old English, but to the
Middle English stage of the development of this metre) show all the specific
Middle English developments. These are:-(1) in consequence of the
lengthening of short vowels in open syllables expansions like ý x, originally
the equivalent of b, become equal to 1x; (2) the use of alliteration as an
adornment within the half-line and rime to link the two half-lines together;
(3) the apparent loss of the final half-stress in Old Frisian is only found in
lines not of Frisian popular origin:
A. mith hórne ånd mith hlúdè.
B. wel was hím ande sine héi.
AC. Hi welde tha stérka Fresan
(riming with « undær sínně tègetha tián”).
C. dà dat breef réed was
(riming with “hoe tróc dất manẪch Freel waa”.
D. Tha thi Kening Kết thit understad
riming with
E. Tórnig was him hir imbe sin mód.
It is probable that all D forms - x*xxd had at this epoch become
txt x text as most likely in the example above. The same tendency is
found in Otfried, in Middle High German and Middle English.
The Frisian and the English were the nearest akin, and we have in both
languages a common ballad metre. Perhaps the clearly popular character
of this metre explains the absence of erotic songs and popular ballads from
Old English literature. Vulgar ballads of all description were in this metre
originally, and what epio classical matter was drawn from them was trans
formed (not always without leaving traces) into the rhetorical courtly metre.
In England, the popular metre remained deposed in favour of its younger
sister, the rhetorical metre, longer than elsewhere, and its sphere must
have been exclusively the vulgar.
J. 8. W.
## p. 419 (#439) ############################################
BIBLIOGRAPHIES
In the bibliographies that follow, references to other histories of English
literature are only given in special cases. Similarly, The Dictionary of
National Biography is mentioned only exceptionally. Readers may be
assumed to have access to it, or, at any rate, to its valuable Index and Epitome.
And it has further been assumed that the student can refer to Körting's
Grundriss der Geschichte der englischen Litteratur, and, if he be interested
in Old English literature, to Wülker's Grundriss zur Geschichte der angel-
sächsischen Litteratur. Both books are indispensable. W. P. Courtney's
Register of National Bibliography, 2 vols. , 1905, will also be found very useful.
When no other place of publication is mentioned, it may usually be taken
to be London.
Abbreviations: Arch. = Archiv für das Studium der neueren Sprachen
und Litteraturen (Brunswick); Ath. = Athenaeum; BBA. = Bonner Beiträge
zur Anglistik; H Beitr. = Beiträge zur Geschichte der deutschen Sprache
und Literatur (Halle); JGPh. = Journal of Germanic Philology (Blooming-
ton, Indiana); MLA. = Publications of Modern Language Association of
America; MLN. = Modern Language Notes (Baltimore); MLR. = Modern
Language Review; NQ. = Notes and Queries; QF. = Quellen und For-
schungen zur Sprach- und Kulturgeschichte der germanischen Völker
(Strassburg); ZDA. =Zeitschrift für deutsches Altertum (Leipzig); ZDPh.
=Zeitschrift für deutsche Philologie (Halle).
CHAPTERS I AND III
THE BEGINNINGS AND EARLY NATIONAL POETRY
GENERAL AUTHORITIES.
Bode, W. Die Kenningar in der angelsächsischen Dichtung. Darmstadt,
1886. (Kenningar = descriptive appellatives, frequent in Old English
and Old Norse poetry. ]
Bradley, H. The Goths. 1888.
Brooke, Stopford A. History of Early English Literature to the accession
of King Aelfred. 1892.
- English Literature from the beginning to the Norman Conquest. 1898.
[Both works contain excellent verse translations. ]
Chadwick, H. M. Origin of the English Nation. Cambridge, 1907.
Conybeare, J. J. Illustrations of Anglo-Saxon Poetry. 1826.
Cook, A. 8. and Tinker, C. B. Select translations from Old English poetry,
1902.
Courthope, W. J. History of English Poetry. Vol. I. 1895.
Dale, E. National Life and Character in the Mirror of Early English
Literature. Cambridge, 1907.
Earle, J. Anglo-Saxon Literature. 1884.
Ebert, A. Allg. Gesch. der Literat. des Mittelalters im Abendlande. 3 vols.
1874-87. New ed. Vol. 1. 1889. [The standard work on its subject. ]
Elton, C. Origins of English History. 1890.
Ettmüller, L. Engla and Seaxna Scopas and Boceras. Leipzig, 1850.
27-2
## p. 420 (#440) ############################################
420
Bibliography to
Green, J. R. The Making of England. 1882.
- The Conquest of England. 1883.
Grein, C. W. M. Bibliothek der angelsächsischen Poesie. Vols. I and II
(Text). Göttingen, 1857, 1858. Vols. III and rv (Glossary). Cassel and
Göttingen, 1861-4. 2nd ed. by Wälker, R. P. Vol. 1. Cassel, 1881-3.
[This work contains the text of all the poems treated in these chapters
and is indispensable to the student of Old English poetry. ]
Griffin, W. Hall. A Handbook of English Literature. 1897. [See esp.
pp. 5-15. ]
Grimm, J. Dentsche Mythologie. 1835. Trang. Stallybrass, J. 8. 1883.
Gummere, F. B. Germanio Origins: A Study in Primitive Culture. New
York, 1892. [A useful work on social and national life. ]
Jiriczek, 0. L. Northern Hero Legends. Trans. Smith, M. Bentinck. 1902.
Jónsson, F. Den oldnorske og oldislandske Litteraturs Historie.
theless, that is a remarkable sentence coming from one who lived
on until 1734: ‘Really the Law is scarcely expressible properly in
English. '
Had it been written some centuries earlier it would have been
very true, and its truth would have evaporated very slowly. The
Act of 1362, which tried to substitute la lange du paiis for la lange
francais, qest trope desconue as the oral language of the courts, is
an important historical landmark. But we know that it was
1 Roger North, Lives of the Norths, 1826, 1, 30.
· Lives of the Northe, I, 33; Roger North, 4 Discourse on the Study of the Laws,
1824, p. 13.
3 36 Edw. III. stat. c. 15 (Commissioners' edition). Observe francais, not
francaise. Having written trop, the scribe puts a tittle over the p, which seems to
## p. 409 (#429) ############################################
Retention of French in the Courts 409
tardily obeyed, and indeed it attempted the impossible. How tardy
the obedience was we cannot precisely tell, for the history of this
matter is involved with the insufficiently explored history of
written pleadings. Apparently French remained the language of
'pleadings' properly so called, while English became the language
of that 'argument' which was slowly differentiated from out of the
mixed process of arguing and pleading which is represented to us
by the Year Books Fortescue's words about this matter are well
known? In 1549 Archbishop Cranmer, contending with the rebels
of Devonshire over the propriety of using English speech in the
services of the Church, said, 'I have heard suitors murmur at the
bar because their attornies pleaded their causes in the French
tongue which they understood not? ' In Henry VIII's day, when
the advocates of a reception of Roman law could denounce thys
barbarouse tong and Old French, whych now seruyth to no purpose
else,' moderate reformers of the Inns of Court were urging as the
true remedy that students should be taught to plead in good
French: the sort of French, we may suppose, that John Palsgrave,
natyf de Londres et gradué de Paris, was teaching No doubt
they felt with Roger North that really the Law is scarcely
expressible properly in English
The law was not expressible properly in English until the lange
du paiis had appropriated to itself scores of French words; we may
go near to saying that it had to borrow a word corresponding to
almost every legal concept that had as yet been fashioned. Time
was when the Englishman who in his English talk used such a
word as 'ancestor' or 'heir,' such a word as 'descend,' 'revert,' or
‘remain,' must have felt that he was levying an enforced loan.
For a while the charge of speaking a barbarous jargon would fall
rather upon those who were making countless English words by the
simple method of stealing than upon those whose French, though
it might be of a colonial type, had taken next to nothing from the
vulgar tongue. Very gradually the relation between the two
languages was reversed. An Act of Parliament could do little
to hasten the process ; more might be done by patriotic school-
masters.
When the history of English law is contrasted with the history
show that he meant trope. The word tittle is useful. Thereby we mean '& small line
drawn over an abridged word, to supply letters wanting' (Cotgrave). It is the Spanish
tilde, which we see, e. g. in doña.
| Fortescue de Laudibus, c. 48.
? Cranmer, Remains (Parker Soc. ), p. 170.
3 Maitland, English Law and the Renaissance, pp. 43, 72.
## p. 410 (#430) ############################################
410 The Anglo-French Law Language
of its next of kin, the existence of law French is too often forgotten.
It is forgotten that during the later middle age English lawyers
enjoyed the inestimable advantage of being able to make a technical
language. And a highly technical language they made. To take
one example, let us think for a moment of an heir in tail rebutted
from his formedon by a lineal warranty with descended assets. '
Precise ideas are here expressed in precise terms, every one of
which is French: the geometer or the chemist could hardly wish
for terms that are more exact or less liable to have their edges
worn away by the vulgar. Good came of this and evil. Let us dwell
for a moment on an important consequence. We have known it
put by a learned foreigner as a paradox that in the critical
sixteenth century the national system of jurisprudence which
showed the stoutest nationalism was a system that was hardly
expressible in the national language. But is there a paradox here?
English law was tough and impervious to foreign influence because
it was highly technical, and it was highly technical because English
lawyers had been able to make a vocabulary, to define their
concepts, to think sharply as the man of science thinks. It would
not be a popular doctrine that the Englishry of English law was
secured by la lange francais gest trope desconue; but does it not
seem likely that if English law had been more homely, more volks-
thümlich, Romanism would have swept the board in England as it
swept the board in Germany ? . . .
Now, as regards vocabulary, there is a striking contrast between
the earliest and the latest year books. A single case of Henry VIII's
day shows us 'deer, hound, otters, foxes, fowl, tame, thrush, keeper,
hunting. ' We see that already the reporter was short of French
words which would denote common objects of the country and
gentlemanly sport. What is yet more remarkable, he admits
'owner? ' But in Edward II's day the educated Englishman was
far more likely to introduce French words into his English than
English words into his French. The English lawyer's French
vocabulary was pure and sufficiently copious. It is fairly certain
that by this time his 'cradle speech' was English; but he had not
been taught English, and he had been taught French, the language
of good society. Even as a little boy he had been taught his
moun et ma, toun et ta, soun et sa. Of our reporters we may be
far more certain that they could rapidly write French of a sort
than that they had ever written an English sentence, John of
* Y. B. 12 Hen. VIII, f. 3 (Trin. pl. 8); Pollock, First Book of Jurisprudence, 281.
? See the treatise of Walter of Biblesworth in Wrigbt, Vocabularies, 1, 144.
## p. 411 (#431) ############################################
The Making of Legal Terms
411
Cornwall and Richard Penkrich had yet to labour in the grammar
schools.
Let us look for a moment at some of the words which ‘lay in
the mouths' of our serjeants and judges: words descriptive of
logical and argumentative processes: words that in course of
time would be heard far outside the courts of law. We see 'to
allege, to aver, to assert, to affirm, to avow, to suppose, to
surmise (surmettre), to certify, to maintain, to doubt, to deny,
to except (excepcioner), to demur, to determine, to reply, to
traverse, to join issue, to try, to examine, to prove. ' We see
'a debate, a reason, a premiss, a conclusion, a distinction, an
affirmative, a negative, a maxim, a suggestion. ' We see 're-
pugnant, contrariant, discordant. ' We see 'impertinent' and
'inconvenient' in their good old senses. We even see 'sophistry. '
Our French-speaking, French-thinking lawyers were the main
agents in the distribution of all this verbal and intellectual
wealth. While as get there was little science and no popular
science, the lawyer mediated between the abstract Latin logic
of the schoolmen and the concrete needs and homely talk of
gross, unschooled mankind Law was the point where life and
logic met.
And the lawyer was liberally exercising his right to make
terms of art, and yet, if we mistake not, he did this in a manner
sufficiently sanctioned by the genius of the language. Old French
allowed a free conversion of infinitives into substantives. Some of
the commonest nouns in the modern language have been infinitives :
diner, déjeuner, souper, pouvoir, devoir, plaisir; and in the list
whence we take these examples we see un manoir and un
plaidoyer. English legal language contains many words that
were thus made: 'a voucher, an ouster, a disclaimer, an inter-
pleader, a demurrer, a cesser, an estover, a merger, a remitter,
a render, a tender, an attainder, a joinder, a rejoinder,' though
in some cases the process has been obscured. . . . Were we still 'to
pray oyer of a bond,' we should use a debased infinitive, and
perhaps it is well that nowadays we seldom hear of 'a possibility
of reverter' lest a pedant might say that revertir were better.
Even the Latin roll felt this French influence: ‘his voucher'
is vocare suum, and recuperare suum is ‘his recovery. '
But the most interesting specimen in our legal vocabulary of a
French infinitive is ‘remainder. In Edward II's day name and
thing were coming to the forefront of legal practice. The name
was in the making. When he was distinguishing the three writs of
## p. 412 (#432) ############################################
412 The Anglo-French Law Language
formedon (or better of forme de doun) it was common for the
lawyer to slip into Latin and to say en le descendere, en le reverti,
en le remanere. But the French infinitives also were being used,
and le remeindre (the 'to remain,' the 'to stay out' instead of
the reversion or coming back) was soon to be a well-known sub-
stantive. It was not confused with a remenaunt, a remnant, a
part which remains when part is gone. What remained, what
stayed out instead of coming back, was the land'. In French
translations of such deeds as create remainders it is about as
common to see the Latin remanere rendered by demorer as to see
an employment of remeindre, and it is little more than an accident
that we do not call a remainder a demurrer and a demurrer
a remainder. In both cases there is a 'to abide'; in the one the
land abides for the remainder-man (celui a qi le remeindre se
tailla); in the other case the pleaders express their intention of
dwelling upon what they have said, of abiding by what they have
pleaded, and they abide the judgment of the court. When a cause
'stands over,' as we say, our ancestors would say in Latin that it
remains, and in French that it demurs (loquela remanet: la parole
demoert): 'the parol demurs,' the case is 'made a remanet. '
The differentiation and specification of "remain' and 'demur,'
'remainder' and 'demurrer,' is an instance of good technical
work. . . .
We might dwell at some length on the healthy processes which
were determining the sense of words. There is, for example,
tailler (to cut or carve), which can be used of the action of one
who shapes or, as we say, 'limits' a gift in some special manner,
but more especially if the result of his cutting and carving is a
‘tailed fee. ' There is assez (enough) with a strange destiny before
it, since it is to engender a singular 'asset. ' We might endeavour
to explain how, under the influence of the deponent verbs sequi
and prosequi which appear upon the Latin roll, the phrase il fut
nounsuivy (he was non-suited) is a nearer equivalent for il ne
suivit pas than for il ne fut pas suivi. Of our lawyers as word-
makers, phrase-makers, thought-makers, much might be said. "
1 Pollock and Maitland, Hist. Eng. Law, u, 21; Challis, Law of Real Property,
And ed. p. 69.
## p. 413 (#433) ############################################
APPENDIX TO CHAPTER VII
THE OLD ENGLISH SUNG, OR BALLAD, METRE
[It has been thought desirable to print in this place the following account of
Old English metre as adjusted on the stress-system to ballads. ]
The chief characteristio of the old popular metre, which suddenly assumes
such prominence in later Old English literature, is that in each half-line, instead
of the two beats of the rhetorical metre, we have four beats, two of which
are chief beats with full-stress, while the other two are half-stress. Between
every two of the four beats there is, generally, an unstressed sinking. Elision
of the sinking may take place in any position, and is usual before a final
half-stress.
The Old English sung, or ballad, metre is, fundamentally, a four-beat
rhythm which must end in a stress. It differs from the ordinary four-foot
ballad verse in this, that a far greater difference is postulated between the
force of the four stresses. In any natural English four-beat doggerel,
granted it be not of expert composition, we come upon the distinction of
full-stresses (%) and minor stresses, here called half-stresses (1); e. g.
The kíng was in the counting-house.
In Old English verse, these stresses and half-stresses could not be arranged
as one liked: the line had to be balanced.
Fully balanced lines can be divided thus:
A. (* x) 4(xx) +(x) x + (x)
Modern English forms:
The kíng was in the counting-house
The queen was in the parlour.
Old English examples:
and þa éarme mèn hit beceórodon
his rice mèn hit máendòn.
B. (x x) = x(x) 4(x x) + x(x) 4.
Examples in modern English are rare. Of, the inner-rimed line:
Jack and Jill went up the hill.
Old English example:
në wearð dréorlicră daed.
## p. 414 (#434) ############################################
414
Appendix to
C. (*1x) = x(x) <<(x).
Examples in modern English nursery songs are extremely rare, because of
the modern dislike to two chief stresses coming together,
Old English example:
paiet hệ selbéodigė.
AC. (x1x) = x(x) < * (*) 4(x) .
Examples in modern English nursery songs are extremely numerous:
and in my lády's chamber,
sing a song of síxpence.
Old English examples:
He weărț wídě gểond Þéodland
and wurdên unděrbéoddě.
D. Imperfectly balanced form: -(x x) (x)*(x).
This form always tends to become
<(xx) = x + (x) è or + (x) x + (x) 4(x)<.
Modern English:
four and twenty blackbirds
tends to become
four and twenty bláckbirds.
Old English:
and útlaendisce.
E. Perfectly balanced form: -(x ) = x(x)+(x) * t
Modern English (with inner rime):
Jáck fell down and broke his crown.
Old English:
х
x
se cyng waes swa swide stearo.
The Old English ballad verse, in contradistinction to its modern repre-
sentative, was quantitative in all four stresses.
That is to say, a stress had to fall either on one long syllable or two short
ones. According to Lachmann's original theory, which he applied to some
High German ballads, but which must be applied to all Old English ballads,
the stress then fell gradually throughout the length of the two syllables,
e. g.
and
Ắc Gód wino hìně på gelette,
Goděo wíběr Baocăn | Gtódės lăgě bráốcon.
## p. 415 (#435) ############################################
Chapter VII
415
This is most clearly seen in B and E, where two shorts so used pair
absolutely with final stress and half-stress, e. g.
ran
bao hề sa tế bề tấm harắn
pet tỉ môstên treo faran,
X X XÚvx x
he swa swiðe lufode ba hea deor
x x 1x, üve
swilce he waere heora faeder.
But, at the end of the line, the quality of a syllable constituting a half-stress
was indifferent, the pause lending its support; a half-stress could not at that
place be divided into two short syllables (since the second would perforce
have to fall too low), but only a full-stress. Cf. the example referred to above:
his rice men hît maendon.
It seems, then, that final feet (with indifference as to the quantity of the
half-stress) could be carried over into the middle of a half-line before either a
real or artificial inner pause or a change of musical melody
. . x x º x º tº
wide 1 side |ba hwile bel he leofode,
Eac he saette be pam haran.
2. The normal (inner) foot has a maximum of two unstressed syllables
and one stressed long (or two short) syllable(s).
B. Every foot is subject to complete elision of unstressed syllables-but
complete elision in a whole half-line is extremely rare.
Y. Between a full-stress and a half-stress complete elision is frequent and
more than one syllable unusual, e. g.
. X e
Xus
and God him gendě (no sinking)
på hvít pě bě leófödě (one syllable).
Modern English example:
when in came a blackbird.
On the other hand, after a half-stress before a full-stress, complete elision
is, practically, never found. In the overwhelming majority of cases (c. 98 or
99%) one sinking syllable occurs, though two are found very frequently.
The number of exceptions is negligible:
X X Jú X X,
ắc Gódwině hřně på gěléttă (two syllables)
ne wearð dréorlicre daed (one syllable)
The first foot was composed of the sinking, called the anacrusis or
auftakt, and the first stress. In the earliest form of the strophe it would
seem to have been the rule that the anacrusis of the first line of the couplet
should be one syllable longer than that of the second and should never exceed
two syllables; the dissyllabio anacrusis was, apparently, used to mark the
beginning of a new passage.
1 For a further discussion of this subject, the reader may be referred to a paper
by the present writer, read before the London Philological Society, 7 June 1907.
## p. 416 (#436) ############################################
416
Appendix to
In the poem of 959, out of some 24 couplets, 13 have the anacrusis of the
first line longer than that of the second; in 8 the anacruses are equal (or
both lacking), in only three cases is there a monosyllabio anacrusis in the
second line and none in the first, e. g.
x x Tv x x x x , ,
Jon his dagum hỉt godode georne
(Aňa Gód him geuče,
Sberet hos wúnode iň sibbe
X X X Úvi
pa hwile pe | he leofode.
The fourth, or final, foot differs from the others in the following
characteristic:
No final sinking (**) was allowed, i. e. feminine rime did not exist in our
sense, both such syllables being stressed.
Hence the line could only end in a stress whether full or half in strength.
In the falling types A, AC, C, D, the last foot usually consists of a single
stressed syllable:
She saette mycel déorfrio
land hp laegal lagi Perwiờ.
A. and etód him geudě.
C. sy Dân Dénở sớmon.
AC. gie hi wólaốn lábban.
D. hiš máegểs Éadwardès.
Cf. the modern English nursery rimes:
The maid was in the garden
Took him by the left leg
as chanted by mothers to their children with the heavy final half-stress.
With the ending juu.
(It must be noted that in Old English ballad verse a single long syllable
is fairly often divided into ú - or j: as well as into úų. This may be due to
*.
*ÚV
the artificial stress on the second member, e. g. A, swidost para cyninga. )
A. på hvílo pě, bě leófódo
AC. Her com Éadwård sépěling
C. and bě pár wúnódě.
Much less frequently the ending + x + is found in A, AC, C, e. g.
A. Aélfere caldărman
## p. 417 (#437) ############################################
Chapter VII
417
AC. wală, þaét waềs hréowtło sit
0. pået aélpéodivě.
From this last two are derived the final feet of such nursery rime rhythms as
wasn't that a dainty dish. ”
In the rising types B and E the usual form is one unstressed syllable and
a final full-stress, which may be divided into two syllables. The ending with
a dissyllabic sinking before the final stress is rarely met with in B and E.
B. Bắa hìa gorerần hề tồarat
E. sẽ cyng waes swă swidă stearo.
With anapaestic ending
E. Zo be úplica wrèceñd håfað hảs žemynd.
We have several examples of the verse form + x tubu:
on paere earmăn býring
to săn láoan Góiề.
We have, further, a number of clear instances of three-beat short verses,
perhaps originally meant for strophic use, in conjunction with four-beat
Terses, e. g.
i X to
cinges geseon
þaet gedon wearð.
It is a question whether every one of those so-called four-beat verses
without any sinkings (even between half-stress and subsequent full-stress)
is not to be reckoned here as three-beat.
Side by side with the introduction of this metre into literary use, there
are also to be found instances of rime and assonance.
The use of rime and assonance tends to destroy the old system of linked
half-lines, but in two different directions. First, in proportion as rime and
assonance grow in power, alliteration, which had originally been the con-
necting link between the two half-lines, diminished in importance, until
eventually it was used mainly within each half-line as an adornment.
Different alliterating letters occurred in each half-line, and rime or assonance
suoceeded as a bond.
Hence, the half-lines became independent and the four-beat couplet
resulted. Secondly, rime or assonance was further used to link the full long
lines into couplets. These long lines were then felt to be too long, and a
simple means of avoiding such undue length was to use either a weak four-
beat half-line or, more usually, a three-beat half-line together with a full
four-beat half-line (of six to eight syllables) to make up the whole. A new
line with a variable caesura, either after the 3rd or the 4th beat, was thus
constructed. Examples are found in the poem in the Chronicle under 1057, e. g.
Her com Eádward Aépeling | to Englalóndo
E. L. Lo
## p. 418 (#438) ############################################
418
Appendix to Chapter VII
and
Eadmund cing | Trensid waes geclypod.
But it must not be forgotten that both strophic forms are usually found in
these Old English poems without the need of either rime, assonance or
alliteration. The strophio system seems to have been originally, perhaps,
purely rhythmic, and rime, assonance and alliteration merely its adornments.
Lastly, this sung verse is found in other Germanic languages as well as in
Old English. The most notable instance of its employment elsewhere is in
the famous paraphrase poem of Otfried, who expressly repudiates the solemn
rhetorical metre, which must have smacked to him of the worship of the
heathen gods. This metre could not have been of Otfried's own composition,
since it was not only the metre of the Nibelungenlied but the basic metre of
other German ballad poems, and is identical with the poems in the Chronicle.
The following examples of Frisian metric forms seem to show that these also
were based on the same old Germanio metrical scheme, originally the common
property of all the Teutonic peoples. It is remarkable that the Old Frisian
forms (which do not, of course, correspond to the Old English, but to the
Middle English stage of the development of this metre) show all the specific
Middle English developments. These are:-(1) in consequence of the
lengthening of short vowels in open syllables expansions like ý x, originally
the equivalent of b, become equal to 1x; (2) the use of alliteration as an
adornment within the half-line and rime to link the two half-lines together;
(3) the apparent loss of the final half-stress in Old Frisian is only found in
lines not of Frisian popular origin:
A. mith hórne ånd mith hlúdè.
B. wel was hím ande sine héi.
AC. Hi welde tha stérka Fresan
(riming with « undær sínně tègetha tián”).
C. dà dat breef réed was
(riming with “hoe tróc dất manẪch Freel waa”.
D. Tha thi Kening Kết thit understad
riming with
E. Tórnig was him hir imbe sin mód.
It is probable that all D forms - x*xxd had at this epoch become
txt x text as most likely in the example above. The same tendency is
found in Otfried, in Middle High German and Middle English.
The Frisian and the English were the nearest akin, and we have in both
languages a common ballad metre. Perhaps the clearly popular character
of this metre explains the absence of erotic songs and popular ballads from
Old English literature. Vulgar ballads of all description were in this metre
originally, and what epio classical matter was drawn from them was trans
formed (not always without leaving traces) into the rhetorical courtly metre.
In England, the popular metre remained deposed in favour of its younger
sister, the rhetorical metre, longer than elsewhere, and its sphere must
have been exclusively the vulgar.
J. 8. W.
## p. 419 (#439) ############################################
BIBLIOGRAPHIES
In the bibliographies that follow, references to other histories of English
literature are only given in special cases. Similarly, The Dictionary of
National Biography is mentioned only exceptionally. Readers may be
assumed to have access to it, or, at any rate, to its valuable Index and Epitome.
And it has further been assumed that the student can refer to Körting's
Grundriss der Geschichte der englischen Litteratur, and, if he be interested
in Old English literature, to Wülker's Grundriss zur Geschichte der angel-
sächsischen Litteratur. Both books are indispensable. W. P. Courtney's
Register of National Bibliography, 2 vols. , 1905, will also be found very useful.
When no other place of publication is mentioned, it may usually be taken
to be London.
Abbreviations: Arch. = Archiv für das Studium der neueren Sprachen
und Litteraturen (Brunswick); Ath. = Athenaeum; BBA. = Bonner Beiträge
zur Anglistik; H Beitr. = Beiträge zur Geschichte der deutschen Sprache
und Literatur (Halle); JGPh. = Journal of Germanic Philology (Blooming-
ton, Indiana); MLA. = Publications of Modern Language Association of
America; MLN. = Modern Language Notes (Baltimore); MLR. = Modern
Language Review; NQ. = Notes and Queries; QF. = Quellen und For-
schungen zur Sprach- und Kulturgeschichte der germanischen Völker
(Strassburg); ZDA. =Zeitschrift für deutsches Altertum (Leipzig); ZDPh.
=Zeitschrift für deutsche Philologie (Halle).
CHAPTERS I AND III
THE BEGINNINGS AND EARLY NATIONAL POETRY
GENERAL AUTHORITIES.
Bode, W. Die Kenningar in der angelsächsischen Dichtung. Darmstadt,
1886. (Kenningar = descriptive appellatives, frequent in Old English
and Old Norse poetry. ]
Bradley, H. The Goths. 1888.
Brooke, Stopford A. History of Early English Literature to the accession
of King Aelfred. 1892.
- English Literature from the beginning to the Norman Conquest. 1898.
[Both works contain excellent verse translations. ]
Chadwick, H. M. Origin of the English Nation. Cambridge, 1907.
Conybeare, J. J. Illustrations of Anglo-Saxon Poetry. 1826.
Cook, A. 8. and Tinker, C. B. Select translations from Old English poetry,
1902.
Courthope, W. J. History of English Poetry. Vol. I. 1895.
Dale, E. National Life and Character in the Mirror of Early English
Literature. Cambridge, 1907.
Earle, J. Anglo-Saxon Literature. 1884.
Ebert, A. Allg. Gesch. der Literat. des Mittelalters im Abendlande. 3 vols.
1874-87. New ed. Vol. 1. 1889. [The standard work on its subject. ]
Elton, C. Origins of English History. 1890.
Ettmüller, L. Engla and Seaxna Scopas and Boceras. Leipzig, 1850.
27-2
## p. 420 (#440) ############################################
420
Bibliography to
Green, J. R. The Making of England. 1882.
- The Conquest of England. 1883.
Grein, C. W. M. Bibliothek der angelsächsischen Poesie. Vols. I and II
(Text). Göttingen, 1857, 1858. Vols. III and rv (Glossary). Cassel and
Göttingen, 1861-4. 2nd ed. by Wälker, R. P. Vol. 1. Cassel, 1881-3.
[This work contains the text of all the poems treated in these chapters
and is indispensable to the student of Old English poetry. ]
Griffin, W. Hall. A Handbook of English Literature. 1897. [See esp.
pp. 5-15. ]
Grimm, J. Dentsche Mythologie. 1835. Trang. Stallybrass, J. 8. 1883.
Gummere, F. B. Germanio Origins: A Study in Primitive Culture. New
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