Intentional Obfuscation: The Origins of Legal Language

Cicero, Pro Murena 25-26

“At one time, few people knew whether something could be done lawfully or not; the fasti were not public at that time. Lawyers then had considerable power, and they were asked about the days as though they were Chaldean astrologers. A certain scribe was then discovered, named Gnaeus Flavius, who nailed the eyes of the crows. (1) He proposed that the Fasti be disseminated to the people each day for them to memorize, and in this way, he plucked that special wisdom away from the lawyers so eager to guard it.

The lawyers were incensed, fearing that because the knowledge of the days was made public, everything could be done without their involvement. Therefore, they put together a mode of speaking which would require their involvement in all affairs.

A case could easily be transacted this way:

‘The Sabine estate is mine.” “No, it’s mine!’

Then a judgment would be given. But the lawyers would not have this. A lawyer would have it,

‘The estate, which is in the field, which is called the Sabine.’

Yes, I grant, that is wordy enough – what next?

‘I say, according to the laws of the Quirites, that it is mine.’

What then?

‘Therefore, according to my right, I seize your hand and summon you to court.’

The man who was sought in such a proceeding would then hardly know what to say to such a loquacious litigant.”

1.) This was a proverbial expression, which meant in effect that you could beat someone at their own game.

Side Note: This passage reminds me of that memorable Dickensian character, Wackford Squeers, from Nicholas Nickleby:

“Philosophy’s the chap for me. If a parent asks a question in the classical, commercial, or mathematical line, say I, gravely, ‘Why, sir, in the first place, are you a philosopher?’ – ‘No, Mr. Squeers,’ he says, ‘I an’t.’ ‘Then, sir,’ says I, “I am sorry for you, for I shan’t be able to explain it. ‘Naturally the parent goes away and wishes he was a philosopher, and equally naturally, thinks I’m one.”

Posset agi lege necne pauci quondam sciebant; fastos enim volgo non habebant. Erant in magna potentia qui consulebantur; a quibus etiam dies tamquam a Chaldaeis petebatur. Inventus est scriba quidam, Cn. Flavius, qui cornicum oculos confixerit et singulis diebus ediscendis fastos populo proposuerit et ab ipsis <his> cautis iuris consultis eorum sapientiam compilarit. Itaque irati illi, quod sunt veriti ne dierum ratione pervolgata et cognita sine sua opera lege <agi> posset, verba quaedam composuerunt ut omnibus in rebus ipsi interessent. Cum hoc fieri bellissime posset: ‘Fundus Sabinus meus est.’ ‘Immo meus,’ deinde iudicium, noluerunt. ‘Fvndvs’ inquit ‘qvi est in agro qvi sabinvs vocatvr.’ Satis verbose; cedo quid postea? ‘evm ego ex ivre Qviritivm mevm esse aio.’ Quid tum? ‘inde ibi ego te ex ivre manvm consertvm voco.’ Quid huic tam loquaciter litigioso responderet ille unde petebatur non habebat.

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