Legal Language & the Wrinkles It Can Create in Our Writing

 
 
 

 

21 January 2014

Legal language bumfuzzles many researchers. It also causes many to iron wrinkles into their writing when they sit down to report their findings or tell their stories. This week, we spotted the following quartet in four different academic publications. What’s your reaction: a knitted brow, a pair of rolled eyes, or a generous sigh?

More importantly, how should each of these be rephrased?

  • “On May 2, 1832, Manford sold a mortgage on 240 acres in Warren Township.”
  •  “At the June term of court, an affray was issued against Thomas Hobby, who had been charged with public brawling at the last term of court.”
  • “Sarah Jones was charged with trespassing by a neighbor who claimed Sarah should pay her $5 as a result. The court minutes do not tell us the exact nature of the damage Sarah caused to her neighbor's property. ”
  • “The quitrent roll of 1721 showed that John Jemison still occupied his land, but his appearance on the roll suggests that he had been allowed to quit paying rent because of old age."

Thoughts?

 

Update: 23 January 2014

Test Answers:

Mortgage 

More-accurate wording: "On May 2, 1832, Manford gave a mortgage on his 240 acres in Warren Township."

Explanation: In the modern world, banks do sell mortgages. More precisely they bundle and sell large groups of mortgages they are holding on the property of others. Individuals, on the other hand, give mortgages on their property—that is, they give someone (the holder of the mortgage) the right  to seize their property if they do not pay a certain debt on time. The mortgage may have been made at the time the property was purchased on credit, in which case the mortgage was usually given to the person from whom the land was being purchased. Or a mortgage on property already owned may have been given to someone who lent them money or co-signed as their surety on a bond or promissory note.

Affray

More-accurate wording: “At the June term of court, a warrant was issued against Thomas Hobby, on a charge of affray (specifically, public brawling) that had been made against him at the last term of court.”

Explanation:  An "affray" was the act that Hobby was said to have committed. A warrant  was the written order issued by the court.

Trespass

More-accurate wording: “Sarah Jones was accused of trespass—a charge that covered a wide range of personal offenses—by a neighbor who sought $5 in damages. The court minutes do not tell us the exact nature of the offense Sarah committed."

Explanation:  In everyday language today, "trespass" is usually interpreted as going onto someone's property without permission and with undesired consequences. Historically, at law, it has had a far broader meaning. Black's Law Dictionary (4th ed., p. 1674) instructs us: "In its more limited and ordinary sense, it signifies an injury committed with violence, and this violence may be either actual or implied; ... Of actual violence, an assault and battery is an instance; of implied, a peaceable but wrongful entry upon a person's land."

Quitrent

More-accurate wording: "The quitrent roll of 1721 shows that John Jemison still held a freehold title to the land he had long occupied."

Explanation:  As Black's also explains (p. 1417), quitrent was "a rent paid by the tenant of the freehold, by which he goes quit and free,—that is, discharged from any other rent."

As researchers, what ever would we do without a legal dictionary such as Black1 or Bouvier.2


Sources:

No. We're not citing any for the original test questions. The point is not to play gotcha, but to learn from the lessons these confusions offer. For the answers, we reference

    1. Henry Campbell Black, Black's Law Dictionary: Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern, with Guide to Pronounciation (St. Paul, Minn.: West Publishing Co., numerous editions since 1891).

    2. John Bouvier, A Law Dictionary, Adapted to the Constitution and Laws of the United States of America and of the Several States of the American Union (numerous editions and various publishers since 1839); rev. 6th ed. (1856) digitized at The Constitution Society (http://www.constitution.org/bouv/bouvier.htm).

 

 

yhoitink
yhoitink's picture
A few thoughts from a non

A few thoughts from a non-native speaker:

  1. If you're the one who lend money for the mortgage, I don't think transferring that mortgage to someone else would be called a sale but rather a cession. If the deed says 'sold' I would think that the mortgaged land was sold, not the mortgage itself.
  2. I know the word affray as the brawl itself. You wouldn't have an affray issued against you, but would be charged with affray.
  3. Trespassing just means you're on somebody else's property without permission and doesn't mean that you damaged any property. I think that would have been a separate charge. The $5 was probably just a fine/compensation for the inconvenience rather than costs of any damages.
  4. From my own research into serfs (some of my ancestors were serfs until 1795!), I know a quit-rent as an annual rent in money that came in the place of a feudal duty that had to be performed in person, like feeding the lord's pigs, supplying wood for the lord's kitchen, de-icing the castle moat or working the lord's land. The fact that somebody paid a quit-rent would say nothing about his age, just that he was occupying that farm. 

Yvette Hoitink, CGSM, the Netherlands
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