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Elgantia Juris, 14 N. IR. LEGAL Q. 591 (1961).

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(1961). Elgantia juris. Northern Ireland Legal Quarterly, 14(3), 591-595.

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"Elgantia Juris," Northern Ireland Legal Quarterly 14, no. 3 (November, 1961):
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NORTHERN IRELAND LEGAL QUARTERLY

Elegantia Juris
No one supposes that an affidavit or a notice to quit or a case
stated could ever be a "a thing of beauty and a joy for ever".
The documents of the law are precise and practical things and do
not easily lend themselves to that indefinable thing called "style"
which marks the distinction between literature and reading
matter. Even the judgments of Her Majesty's judges, though
usually-but not always-lucid and well-constructed, would not
rank as works of art, though Lord Macnaghten did get one of his
speeches into the Oxford Book of English Prose.
But even if a pedestrian legal document cannot hope to qualify
as an example of great writing there is no reason why it should be
carelessly prepared and shoddily presented. Yet experience shows
that lawyers are too often satisfied if their documents are effective
for the purpose for which they are framed, and the elegance of the
documents is not merely of secondary importance but of little
importance at all.
We are not here concerned with mere draftsmanship. Drafts-
manship is an art which can be learned, though in very few cases
is it deliberately learned. Courses of lectures in draftsmanship are
almost unknown and most lawyers are left to pick up the technique
as best they can by imitation and experience. The art of drafts-
manship lies in two parts-the general and the particular. The
general part is that by which ideas are logically and lucidly con-
veyed by writer to reader: the principles in this part will be the
same whether one is drafting an Act of Parliament or a recipe for
making plum cake. The particular part is that by which the writer
manipulates the verbal tools of his trade: it is in this part that the
lawyer draftsman relies on his knowledge of the legal effect of the
words and phrases he uses.
But when the lawyer has produced his draft the next thing is to
get it into the form of a fair copy. This is the document which is
going to be submitted to the scrutiny of the other side, to the
scrutiny of the court, and in some cases, through the medium of
law reports, submitted to the scrutiny of the public. It is at this
stage that inelegancies begin to creep in, sometimes through the
fault of the draftsman and sometimes through the fault of his
typist.
The most obvious inelegancy is that of misspelling (itself often
wrongly put down as "mispelling"), and for this there is clearly
NORTHERN IRELAND LEGAL QUARTERLY

a simple cure, namely to have in each office a good standard

dictionary to which reference can be made whenever there is a
scintilla of doubt. We say "scintilla of doubt" for there are many
words which are often misspelt because the writer thinks he knows
and does not trouble to verify. Some people might argue that
misspelling is more than an inelegancy: it is plainly erroneous.
This is not always so. Three hundred years ago there were the
widest divergencies of spelling permitted, and even in one book
an author might spell a word in different ways. Many of these
divergencies have been ruled out in the course of time but
there are still a number of instances where legitimate alternatives
exist. For example, lawyers are free to choose "misdemeanour"
or "misdemeanor".(1) But here, as elsewhere, the overriding rule
is consistency. Once the writer has decided on "misdemeanour"
he must stick to the "-our".
The same point about consistency arises in the use of capitals.
The use of capital letters is largely a matter of fashion. In the late
seventeenth and eighteenth centuries they were so liberally used
as to be employed at times for every substantive. The height of this
fashion was about the middle of the eighteenth century when one
comes across this sort of thing: "The great Question was, Upon
what Terms and in what Manner the Plaintiff shall redeem, for if
the Account was to be taken as between Mortgager and Mortgagee
in Possession, then the Devisee must account for the Profits
received by the Devisor".(2) In the course of the nineteenth
century the fashion set the other way. One can trace its develop-
ment in the Law Reports from 1868 up to the present day when
the practice is to cut capitals down to a reasonable minimum.
The avant-garde would go even further and have no capitals at
all save for proper names.(3)
The overriding principal here is that of consistency. If you put
"statement of claim" in one place it cannot be right to put
"Statement of Claim" in another. But apart from observing
consistency one would hope that writers would incline to a cutting
down of capital letters to a reasonable, not necessarily the barest,
minimum.
(1) "Misdemeanour"-Cross & Jones, Introduction to Criminal Law:
Plucknett, Concise History: Harris, Criminal Law. "Misdemeanor"-
Kenny, CriminalLaw: Archbold, Criminal Pleading.
(2) 2 Eq. Cas. Abr. 596 (1744 A.D.).
(3) The recently published history of Queen's University, Belfast, by
Professors Moody and Beckett goes to the utmost limits in this respect
and we find "duke of Leinster", "sinn fein" and "anglican clergy".
NORTHERN IRELAND LEGAL QUARTEIL Y

What then, it may be asked, is a reasonable minimum? The

answer which is suggested is that capital letters are appropriate
in the following cases:
(a) for proper names: obviously "John Smith" and not
"john smith".
(b) for the title oCspecific offices, but not of generic offices: thus
one would write "the Lord Chief Justice of Northern
Ireland", though in another context one might write of the
same man as "the learned judge", or one might write of
"Mr. Paul Jones, the Resident Magistrate sitting at
Drumwhat Petty Sessions", though elsewhere it would be
appropriate to write "the powers of the resident magistrate
at petty sessions".
(c) for words which have a particular connotation in their
context. Thus we write "a dastardly act", but "an Act of
Parliament": we write "a state of war", but duties owed
to the State".
Hyphens are another source of trouble. Is it "dwellinghouse",
"dwelling-house" or dwelling house"? And what of "subtenant",
"sub-tenant" and "sub tenant" ? If anyone is under the impression
that it does not greatly matter he should be referred to the article
on "Hyphens" in Fowler's "Modern English Usage" where the
pitfalls are abundantly illustrated. Consistency should always be
aimed at: apart from that in cases of doubt it is better to opt for
the single word. After all, a hypenated word represents a halfway
house: the history of compound words can be represented in the
three stages-"over rule", "over-rule", and "overrule"-and we
might just as well do everything to assist the development to its
conclusion.
Italics-represented in typescript by underlining-afford
another opportunity for going wrong. As in the case of capital
letters there has been a distinct change of fashion here. In the
eighteenth century printers were inclined to splash italic type
about in profusion, using it for proper names and for any other
word which seemed important. Thus we read in Vernon's Reports;
"First, the ship and goods were not well taken by an Englishman
and English vessel, without any commission from the King; but
by commission from the Duke of Savoy only; and therefore if the
caption was lawful, yet it was a perquisite belonging to the
Lord High Admiral".(4)
(4) 2 Vern. 592.
NORTHERN IRELAND' LEGAL QUARTERLY

Even in the nineteenth century italics are to be found in law

reports for names of parties, statutes, cases and maxims. This
practice lingered longest in the Chancery Division reports where
it came to a sudden stop halfway through the 1895 volume,
presumably on the initiative of the new editor, Sir Frederick
Pollock. To-day it is only the names of cases cited which are in
italics.
Otherwise italics have come to be limited to foreign words and
cases where it is intended to indicate special emphasis. The second
instance is unlikely to appear in legal documents,(5) though the
first is very frequent. But what is a foreign word? Or to put it
another way, when does a foreign word become naturalised?
It would be affectation to treat a word like "Moderator" or a
phrase like "per annum" as being still unadopted and therefore
to be put in italics. On the other hand "posse comitatus" and
"Vivat Regina!" clearly remain Latin. But for the most part there
is a wide area in which common sense and consistency are the
only guides, with the rider that in cases of doubt one should opt
for roman type rather than italic. Certainly most of the legal
Latin terms one is likely to employ will be sufficiently naturalised,
at least in legal circles.(6)
Then there is the question of punctuation generally. Once again
it is not so much a question of right or wrong as a question of
fashion and convenience. The eighteenth and early nineteenth
centuries favoured heavy punctuation, as in this example: "There
is a covenant, that after delivery of the deed, and due execution
of it, the daughter might enter and enjoy free".(7) To-day that
sentence would have no commas at all.
There is a strong belief that a legal document should not be
punctuated, and that if it is punctuated the punctuation should
be ignored. Some of the old authorities go pretty far in this
direction,( 8) but the modern view is that punctuation may be
relied on for helping in the construction of a document, though
equally it may be ignored if it is contrary to what the court con-

(5) It does occur occasionally in the Law Reports.

(6) Such as ultra vires, decree nisi, prima facie, mens rea.
(7) 2 Keb. 755.
(8) Davidson's Precedents in Conveyancing (1860 edition) expressly stated
"The Precedents in this collection are pointed by the Printers, according
to their usual practice, but no attention should be paid to the
punctuation".
NORTHERN IRELAND LEGAL QUARTERLY

siders the plain meaning of the document.( 9)The onlyjustification

for punctuation is greater clarity, and no point should be inserted
unless it is necessary to make the meaning clearer. It follows from
this that those who are capable of writing clear English will need
least punctuation. And the converse will many times have been
noticed; that a sentence full of points and parentheses is the sign
of a writer who has put pen to paper before marshalling his
thoughts.
The best test of whether a document is properly punctuated is
to read it aloud. Most legal documents will sooner or later be
read aloud, and the punctuation points should be only those
necessary to represent the pauses which give sense to the reading.
Then there are a number of small matters where as a general
rule it is immaterial what you do so long as you are consistent.
One such is the matter of dates. It does not really matter whether
you put "12 July, 1959", or "July 12th, 1959" or "July 12, 1959"
or "the twelfth of July, 1959"; but make up your mind which
style you propose to adopt and stick to it. Again, £12-6-8, or
£12.6s.8d. or £12:6 :8-they are all equally good by themselves,
but not so good mixed.
And finally, no document should be put into circulation unless
the author is completely satisfied with its accuracy and its form.
There is in this busy world always present the temptation to take
the view that the document will do the job so why worry. "What I
have written I have written" may have been a good working rule
for Pontius Pilate, but a lawyer who takes pride in his craft will
not grudge the time spent in ensuring that his documents are good
law set out in good style.
F.H.N.

(9) Houston v. Burns 1918] A.C. 337.

595