• 法言妙諦|戴啟思
  • 2020-03-18    


Law Clerks-Unacknowledged Legislators of the English Language

The courts have begun to function again after being closed for several weeks. Although not at full capacity, and there is a lot of catching up to do, the wheels of justice are at last moving again.

The engine rooms of the courts' system are the courts' registries. These are the court offices that maintain records of court orders and the place to go if you want to file papers to begin or defend a case or perhaps pay a fine. Without a fully functioning registry system, you cannot have meaningful access to justice.

The re-opening of the registries and the importance of that step the other week put me in mind of how six hundred years ago, a court registry in London not merely advanced medieval justice but shaped spelling conventions that, for better or worse, govern the format of this page.

The story begins with the personal correspondence of King Henry V (1386-1422). He was probably the first English King that felt more comfortable in speaking English rather than French, which had been the official language of the court since the eleventh century.

An Act of Parliament called the 'Statute of Pleading' had given oral English a shot in the arm by requiring court users to speak in English rather than Latin or French. Still, although people spoke in English in court, the written record of the proceedings continued to be in one or the other-sometimes both-of those languages. English may have been the language of the people, but it was not the language of government.

However, what kind of English did the King speak when he came to the throne in 1413 or, perhaps more importantly for present purposes, how did the King's secretaries write down what he had to say?

There were no dictionaries to guide the medieval scribe. The last official records that were written in English had been compiled 250 years earlier in a variant of the language that made it nearly impenetrable to most of those who could read. There was no standard English, spoken or written.

People living in the North and East of the country spoke a dialect that had been influenced by Norwegian and Danish invaders who had ruled there for two hundred years. An author writing in the 15th century told the tale of two merchants from the North trying to buy 'eggs' from a Southern farmer's wife in Kent. They become exasperated until a friendly third party speaks to the woman and tells her that the strangers want 'eyren', the dialect word for 'eggs' in that part of England.

The farmer's wife might have gone on to say that she had made sale of ‘eyren’ in a 'goodlich' way and puzzle the Northerner even more. The helpful third-party would have to intervene again and explain that Southerners formed adverbs by adding 'lich' to an adjective just as they, as Northerners, would add 'ly' to adjectives to form adverbs and so they would say it was 'goodly' deal instead.

It was the clerks working in the first recognisable court registry that tackled the problem of taming the unruly English language. Henry V dictated many letters in English after he became King. He had a private office-the Signet Office-to write letters and deal with the ensuing correspondence. The clerks working in that office had to standardise the King's spelling and usage and then draft replies to correspondents in other parts of the Kingdom who might not follow the King's style.

When King Henry V died in 1422 some of Signet Office clerks had passed on their experience to the clerks working in the chief legal office of the Crown, the Chancery.

This office was responsible for keeping legal records and for issuing summonses and other kinds of legal process. It was a much bigger enterprise than the King's Signet Office, and its reach was broader. It had to see that judges, lawyers, court officials, town clerks and litigants were working to a common understanding of how words should appear in an 'official' legal document where it was necessary to avoid misunderstanding and ambiguity.

Its chief clerk was called 'Master of the Rolls', now a high judicial office, second only to the post of Lord Chief Justice, but then a title that empahised the office's record-keeping functions.

The Chancery clerks were the first influential arbiters of language and spelling. From a comparison of 14th and 15th-century manuscripts from across the country, it is clear that they started with the language commonly spoken in the London area but adopted usages from the wealthy East Midlands which was influencing the way Londoners spoke. It is because of the 14th Century Chancery usage that we write 'such' and not 'suche'; 'said' and not 'seid'; 'had' and not 'hadd'; 'damages' and not 'damagez'; 'money' and not 'monoie'. 'They', 'them' and 'their' are Northen usages preferred by the clerks over the Southern rivals 'heo', 'hem' and ''heore',

Although they standardised spelling and influenced pronunciation at the same time, the Chancery clerks were not professional linguists. They sought to bring to documentary records broadly acceptable spelling consistency and standard usage, not phonetic order.

They did not address the fact that written words often bore no resemblance to the way people spoke them. For example, they spelt the word 'eight' with the unlikely consonants 'gh' when some English dialects already spelt the number as the more phonetically accurate, 'eyhte'

Other examples abound of what seems to us today to be idiosyncratic spelling best exemplified by the spelling joke attributed to the Irish playwright G.B. Shaw who was an enthusiast for phonetic spelling. He sought to justify spelling the word 'fish' as 'ghoti' on the basis that:

"gh'-was the final sound in 'enough';

'o'-the medial sound in 'women';

'ti'-the medial sound in 'action'.

English spelling can be unpredictable and trap even a native speaker though it is not entirely as weird as G.B. Shaw made it out to be.

I want to think that the Chancery clerks if left to themselves for another fifty years after the death of King Henry in 1422 might have further reformed English spelling by making spelling conform better to the sounds of words as spoken. However, a mechanical invention froze English spelling and written usage.

Although known in China since at least the Eleventh Century, a movable type printing press was only introduced to England in 1476. The new printing press generated a demand for reading in the vernacular. Printers had to have rules to ensure that their books and pamphlets were understandable to a market that did not exist when the written word was, literally, hand-written by clerks. They looked around for an acceptable standard for written English. They found it in the Chancery English that legal clerks had so assiduously developed in the half-century before.

Thus the Fifteenth Century guilds of printers and booksellers set the seal on the written English language. Its progress was to be forever fixed by the pragmatic rules and conventions of medieval legal clerks who tried to comunicate more efectively for the sake of legal clarity.

When the spoken word changed-as it continually does, even though we may be unaware of it going on-the written word remained obstinately the same to flummox learners to this day.

For instance, the word 'knight' begs the language novice to pronounce it as 'k-nicht', which was how English speakers pronounced the word until the Sixteenth Century. The word cries out for a phonetic makeover-'nite' perhaps-but after four hundred years of phonetic obsolescence, I fear there will be no change and-along with words like 'knock' and 'gnaw'-these bumps in the road need to be learned as linguistic oddities.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.


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