was Varro, a contemporary of Cicero. In the remains of his works are to be found such derivations as the following,ager from agere, anfractum ab ambitu et frangendo, jugerum from jungo, jurgare from jus, pecus from pes, prædia from præstare, spondere from sponte. Nexum is neque suum, and Romulus produces Ramnenses.1 Festus is more prolific and perhaps more reasonable than Varro, but he has his curiosities, sometimes even more striking than Varro's. Bustum is quasi bene ustum, curia is the place ubi públicas curas gerebant, fenus is from fetus, because money makes money, fasti dies are from fari, locupletes are locorum multorum domini. Multa (fine) is a Sabine word, meaning "one," and because a fine was originally one sheep, the word came to mean a fine. Festus' most famous derivation is that of provincia, so called quod populus Romanus eas provicit, id est, antea vicit. Gellius sometimes frames his own etymologies, sometimes objects and generally with good reason-to those framed by others. Examples of the former are succedaneus (a word used by Ulpian), from succidere, religio from relinquere, because we leave religious places alone, persona a personando, putum (in the legal phrase purum putum) from putare, because it is what we think pure. He is more correct than the jurists in deriving testamentum directly from testis, and not regarding it as a compound of testatio mentis. He objects to Antistius Labeo's derivation of frater, which is quasi alter, and of soror from seorsum, because she is separated from her old family. He will not have bidentes as being biennes or fenerator as paivepáтwp, because a usurer makes a 1 St. Augustin, following Varro, has few etymologies of legal interest. The names of the Nature-Gods in De Civ., iv, 8, 11, &c., are scarcely of this character, nor are those of consul and rex, v, 12. ǎyyapos and prodigium are perhaps legal, but one cannot accept the identity of the former with angelus (xv, 23), or the derivation of the latter from porro dicere (xxi, 9). It is in proper names that he goes farthest astray. Mercurius is medius currens (vii, 14), Proserpina is from proserpere, because fruits creep out of her (vii, 24), and Serapis is a contraction of Sorosapis, the coffin of Apis (xviii, 5). 2 For this he cites Sabinus, De Indigenis, a work now lost. show of honesty. Solinus, though he has no etymologies of law words, is interesting, because he derives Roma from Rome, a noble captive lady. This is at least possible, but his more famous attempt at the origin of the name Tanatus (Thanet) is surely absurd, though no worse than Donatus' sepulcrum.3 The connection of Ulysses with Lisbon, both historically and etymologically, seems to depend on Solinus. The main coiner of etymologies in later Latin was Isidorus Hispalensis (d. 636), and he is the earliest Latin writer who has left an extant work directly on the subject, under the name of Originum seu Etymologiarum Libri xx.1 Although he was later in date than the jurists of the Digest, he seems to have owed them nothing in respect of etymology. Avarus is avidus auri, mandatum is from manus, depositum is diu positum, interdictum is interim dictum, sequester (following Servius) is from sequi, tribuni from tribuere. But his most famous attempt is codicillum, which is sine dubio ab auctore dictum qui hoc scripturæ genus instituit. Britton, as we shall find, erred in the same direction. Coming to the professed jurists, Gaius affords a considerable number of more or less successful attempts, some in the Institutes, some in his works cited in the Digest. Among those of the Institutes the following are the most interesting: Spurii are so called because they are στорáðŋ concepti or sine patre (i, 64), mancipatio is so called quia manu res capitur (i, 121), usureceptio because recipimus per 1 Polyhistor, i, 2. 6 2 So called because cum ipsa nullo serpatur angue, asportata inde terra quoquo gentium invecta sit angues necat, xxii, 8, i.e., Tanatus is @ávaTOS. 3 Sine re pulcra. The Libri de Origine Vocabulorum of Gabius Bassus (cited by Gellius, ii, 4; v, 7), must of course have been earlier, but it has not come down to us. The scholiasts and commentators like Servius, both Greek and Latin, often try their hands at etymology. The scholia on Theocritus are full of them. Few are of legal interest. Servius' clientes from colentes is one of the worst. In Dig. i, 5, 23, Modestinus puts it apà Thy oтоpáν. usucapionem (ii, 59), mutuum because ita tibi a me datum est ex meo tuum fit, (iii, 90),1 præscriptiones quod ante formulas præscribuntur (iv, 32). In the Institutes of Justinian the compilers generally borrowed etymologies from Gaius or the Digest, sometimes with slight alterations, as in mutuum. They are of course not as prolific in etymologies as the larger work. A selection is as follows: The Romans are called Quirites from Quirinus (i, 2, 2), servi are from servare, and mancipia from manu capere (i, 3, 3), testamentum from testatio mentis (ii, 10, pr.), stipulatio from stipulum, and that from stipes (iii, 15, pr.). Injuria is omne quod non jure fit, contumelia is from contemnere (iv, 4, pr.), telum is ἀπὸ τοῦ τηλοῦ (iv, 18, 5). As to the Digest, we may make two divisions, those which would be accepted to-day and those of more doubtful validity. Among the former are the derivations-generally fairly obvious—of consanguinei, decuriones, mobilia, sanctum, and others. The derivations of justum from justitia and of urbs from urbum might be good if put the other way about. Among the latter are several impossible Greek ones. In addition to spurii and telum above we have rivus from peîv, turba from θορυβείν, and fures from φῶρ or φέρειν, as well as the alternative derivations from furvus, fraus, or ferre (xlvii, 2, 1). Other doubtful or fanciful ones are cognati quasi ex uno nati (xxxviii, 8, 1, 1), damnum ab ademptione et quasi deminutione patrimonii (xxxix, 2, 3), familia from fons memoria (1, 16, 195, 4), oppidum ab ope (1, 16, 239, 7), pignus a pugno (1, 16, 238, 2), 1 This is slightly altered by Justinian in Inst. iii, 14, pr. 2 This derivation is of frequent occurrence all through legal history. Coke and others follow it. 3 Following Ulpian in Dig. xlvii, 10, 1. 4 Following Gaius in Dig. 1, 16, 233, 2. As to these, a question has suggested itself to some writers whether their framers were quite serious. See, for instance, C. A. Duker, Opuscula Varia de Latinitate Jurisconsultorum Veterum (Leyden, 1741). His words are luserunt scilicet in iis érúμois proponendis et ingenio suo indulserunt. 6 S. Thomas Aquinas on the same principle derives jus from justum. pratum is paratum (1, 16, 31), possessio is a sedibus quasi positio (xli, 2, pr.), specus is locus ex quo despicitur (xliii, 21, 1, 3), supellex is from sub pellibus (xxxiii, 10, 7, pr.), tignum and toga are both from tegere (xlvii, 3, 1, 1; 1, 16, 180), and last, but not least, vidua is sine duitate (1, 16, 242, 3).1 Occasionally a derivation is named only to be rejected. Thus Ulpian disapproves of the derivation of taberna from tabulæ (1, 16, 183). The commentators have very little in the way of attempts at derivation. That by Azo of pactum—a percussione palmarum -is one of them. Others are to be found in Scipio Gentilis. But though the commentators were chary of their guesses, one at least of the early codes found compilers who were greatly daring. In the Siete Partidas of Castile (begun 1256) occur some very remarkable specimens. Criado is from creare, fuero from forum, vozero, an advocate, is so called because he exercises his voice. These may pass muster, but what is to be said of ley from leyenda (reading), matrimonio from matris munium, and Saracen from Sarah, the wife of Abraham? Dante's etymologies are interesting, though some of them are not strictly legal. They are probably drawn to some extent from Uguccione, De Derivationibus Verborum, cited in Convivio, iv, 9. Among obvious ones are certum facere (De Mon., ii, 8), and filosofo (Conv., iii, 11). Cortesia is from corte (ii, 11). Nobile is not from cognoscere but from non vile (iv, 16). The strangest is autore. This is either from AEIOU or from a supposed Greek word autentin. Benvenuto da Imola carried his imagination further than his master, for with him Averroes is compounded of a and veritas (quasi senza verità). Researches among the medieval jurists would probably discover others as curious. Cange supplies a good many, including the somewhat barbarous term etymologicare. 1 Another etymology which the writer has seen suggested is vis duarum. Du 2 They will be found in E. Otto, Thesaurus Juris Romani (Leyden, 1711), and in other compilations of a similar kind. As to Canon law, the Corpus Juris Canonici has no room for etymology, but some of the commentators contain a little. Van Espen has a few obvious ones, such as consistorium from consistere, simonia from Simon Magus. In later times Joannes Calvinus is one of the writers most prolific in etymologies. They occur in both his works.1 Examples are allod, als leud, universa plebs, armandia ab ariditate, baro from Hebrew bar, a son, or from Bapús, pretium from peritium, because it is fixed by the judgment of periti or experts, uxor ab unguendo, because a wife uses perfumes. In England the earliest etymology in order of date appears to be the elegiac couplet composed by Fitzstephens in honour of Thomas Becket as Chancellor : "Hic est qui regni leges cancellat iniquas, Et mandata pii principis æqua facit." 2 Glanvill has few or none, but a few of some interest are to be found in the Dialogus de Scaccario. These are, in order of occurrence, scaccarium, the Court from the game (i, 1), Tricolumnis (a book), as being in three parts (i, 5), Danegeldum (i, 11), foresta, quasi feresta, hoc est ferarum statio (i, 12), thesaurus, auri thesis (i, 14). In Bracton there are not many of much interest. Among the more curious are baro, which is robur belli (5b), communis is una cum, alio being understood (222b), jus is from justitia (2b), munus from manus (106b), possessio is pedis positio (160a), ringa (an earl's belt), is from renes (5b), and vavassor is vas sortitum ad valetudinem (5b). He also follows the Roman jurists in saying specially that servus is a servando and not a serviendo (4b). The two most remarkable among the numerous attempts of Fleta are wapentakia and impedire. The first is equivalent to armorum confirmatio, tactare being 1 Lexicon Juridicum and De Verbis Feudalibus, both Geneva, 1684. |