Verbing affidavit

A few days ago a friend in the legal profession posted on Facebook expressing his frustration with the awkward and cumbersome (and oft-used) phrase “swore an affidavit” and wondered if there was perhaps some forgotten or neglected verb form that would allow him to express this same meaning with a single word. He quickly scrounged up affy as a possibility, which (spoiler alert!) is probably the closest thing we are going to find to what he (and now I) are looking for. But I just plain don’t like affy, and thus the following.

Affidavit is a Latin verb form, specifically the third person singular perfect indicative active of the verb affidare, a late Latin (i.e. Mediæval) verb meaning ‘to give faith, to pledge, to prove by oath’. It’s migration into legal English is uncomplicated: a heading indicating that “he/she has sworn” followed by the substance of that oath-backed assertion was bound to become a mainstay of legal documentation in the development of the common law system. But it is as I already noted a late addition to the language: a compound of the preposition ad, towards, and the verb fido, fidere,’ to trust, confide, put faith in (someone/something).’ Classical Latin also had the compound confido, confidere, ‘to trust confidently in something, confide in, rely firmly upon, to believe, be assured of’. Why the construction of affidare involved the shifting of conjugation is beyond my linguistic knowledge and resources (although it is, I think, further evidence if any were needed that the Mediævals were mostly crap at Latin, and just made it up as they went along).

But what of the English verb we are looking for? Did any other words come into the language alongside affidavit? If so, where were they? The word I really wanted to find was **affide. It just makes sense to me that just as confide developed quite directly from confidere, there should be a verb developed in parallel from affidare. But, for whatever reason, it doesn’t seem to have happened in the living language. Maybe it is due to the lateness of affidare appearing in Latin, when that tongue was already on the decline as a vernacular. Or perhaps the curious shift from the Second Conjugation to the First in the formation of affidare itself confused things and derailed the progression. In any case, I don’t find affidein any dictionary or lexicon that I can lay hands on.

(While I can find no authoritative attestation to it, a Google search did turn up a very small number of occurrences of affide, only one of which was in the precise context and sense as what I was hoping for: a motion filed in a case before the Supreme Court of Ohio in 2007 (State of Ohio ex rel. Deborah S. Reese vs. Cuyahoga County Board of Elections et al.), which included the assertion that “it would not be proper for the Relator to affide to such matters.” Hard to tell, though, if this a legitimate use of a real live word that even dictionaries have forgotten, or if it just an isolated example of a legal drafter in the Buckeye State “going Mediæval” and making up a word on the fly, either deliberately or without thinking about it. )

I want to take a moment here to credit a fantastic source I happily discovered in pulling this post together. Alexander M. Burrill, A New Law Dictionary and Glossary: Containing Full Definitions of the Principal Terms of the Common and Civil Law, Together with Translations and Explanations of the Various Technical Phrases in DIfferent Languages, Occurring in the Ancient and Modern Reports, and Standard Treatises; Embracing also all the Principal Common and Civil Law Maxims, Part I (New York: John S. Vorhies, 1850). It is available free in its entirety through Google Books, along with the second volume which I have not yet had time or occasion to inspect.

It is in Burrill’s work that I found a solution that satisfies me in my legal context, although it may not be what my counterparts on the common law side of things would like.

The party making an affidavit is usually described as “the deponent,” (sometimes, but rarely, “the affiant,” (q.v.) and in making his statements is said to depose—(“being duly sworn, deposes and says,”)—but an affidavit is distinguished from a deposition, properly so called, by the circumstance that it is always made ex parte, and without any cross-examination. (p. 49)

So, if I were planning my formal vocabulary for my own legal praxis, I think I will probably say “The witness deposed that the lazy fox had no tail.” But if my friend prefers to say that his witness “affied to the veracity of his statement,” then I can only say that the history of our language supports him, and I salute his efforts to rescue another lonely English word from neglectful obscurity. If you doubt my sincerity, I would be happy to **affide this fact to anyone.

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Ordinariate: the word itself

It is not exactly a new word in the Catholic Church, but since Anglicanorum coetibus was promulgated nearly two years ago, ordinariate has been slung around in speech in print at an exponentially higher rate than at any point previous. But what, when you stop and look at it, does it really mean?

It’s kind of a tricky word, actually. Like many other ecclesiastical neologisms for positions or offices, words whose English translations end in -ate (e.g. episcopate, metropolitanate, patriarchate), the Latin term being translated here is constructed to follow the Fourth Declension family of nouns, as shown here:

singular plural
nominative ordinariatus ordinariatus
genitive ordinariatus ordinariatuum
dative ordinariatui ordinariatibus
accusative ordinariatum ordinariatus
ablative ordinariatu ordinariatibus

So the translation is fairly transparent, if a tad ungainly to the English-speaking tongue. But what does it mean? What, if anything, is ordinary about an ordinariate?

Well, nothing, really, at least not in the sense the word has in everyday English. In canon law the term indicates that which is the jurisdiction of an ordinarius (typically rendered in canonical English as ordinary): a person who has rule or authority (ordo) over a particular jurisdiction. A diocesan bishop is an ordinary in this sense: he enjoys jurisdiction (potestas) over a set territory. But he may not be the only ordinary in that territory. Canon 134 §1 defines the term ordinarius to include “in the law diocesan bishops and others who, even if only temporarily, are placed over some particular church or a community equivalent to it according to the norm of can. 368 as well as those who possess general ordinary executive power in them, namely, vicars general and episcopal vicars; likewise, for their own members, major superiors of clerical religious institutes of pontifical right and of clerical societies of apostolic life of pontifical right who at least possess ordinary executive power.” So an ordinarius is the holder of an office that has some degree of jurisdiction, exercising by virtue of an ecclesiastical office at least “general ordinary executive power” within the circumscription of that jurisdiction.

A diocesan bishop, in his particular church (i.e. his diocese), possesses a potestas that is ordinary, proper, and immediate. This means, put very briefly, that his authority is due to the office he holds (ordinary), exercised in his own name, not in the name of a superior authority (proper), and applied directly to his subjects without intermediaries (immediate). By contrast, in the provisions of AC there is a very significant variance of this phrase that made all the canonists in the world perk up their ears and sit up straight in their chairs. The ordinarius of a personal ordinariate for former Anglicans is to have potestas that is ordinary, vicarious, and personal. His power is due to his office, just like a diocesan bishop, (ordinary), but it is “exercised over all who belong to the Ordinariate” (personal, and most interesting, it is “exercised in the name of the Roman Pontiff” (vicarious). This is a very different (dare I say lesser?) authority than that given to diocesan bishops. Of course this could change over time as the experiment goes forward, but in the meantime… well, make of that what you will.

Another thing to note before we go: ordinariate is really only half the term in question. The apostolic constitution Anglicanorum coetibus provides for personal ordinariates (personales ordinariatus). The phrase appears only five times in the text of AC, but it is enough to sketch out clearly what is meant. These are not territorial jurisdictions, like a diocese is, but jurisdictions over a specified group of people, in this case former Anglicans who have joined the Catholic Church in groups (coetus). The ordinary has a flock of persons which, while necessarily given some sort of bounds as well, is not ultimately defined by territorial boundaries. This structure was already in existence for hierarchical organization of pastoral care of military personnel, scattered as they are throughout the world. The application of the idea for these new arrangements for formerly Anglican congregations is fascinating on many levels, and will continue to be watched with close interest by canonists.

Painfully Literal

I find interesting a perennial problem among even those students who most acclaim the shift in translation of official liturgical texts toward a more stringent literalism: the strong preference, or rather the almost insuperable urge, to produce “dynamically equivalent” translations of texts for class assignments. I cannot really fault them; once you begin to get the vocabulary, it is very tempting to scrabble for the word for word meanings and then leap to the apparent safety of a sentence that sounds intuitively probable. 

The problem, of course, is that this approach, is fundamental: even when it is more successful than not in a classroom setting with a patient instructor setting the course, the nitty-gritty of the Latin mechanics — case and number for the nouns and adjectives; mood, tense, voice, person, et cetera for the verbs — are never grappled with, and so never get a chance to make sense, to mean anything for the student. The only way to grasp Latin is to get down in the mud with it, grab it by the tongue, and make it show you exactly what it is doing with each and every word, and why. This is why I try to stay literal as long as I possibly can, and sometimes even longer.

I am perfectly comfortable with the fact that, when confronted with the Latin text of can. 921, §3

Perdurante mortis periculo, commendatur ut sacra communio pluries, distinctis diebus, administretur.

to render it into English as

Danger of death perduring, it is recommended that holy communion be administered often, [but] separated by days.

is to offer a demonstrably non-idiomatic translation. But is it accurate? I certainly think so; perhaps no more so than the official CLSA translation of

While the danger of death lasts, it is recommended that holy communion be administered often, but on separate days.

but I think it no less so either. The complement of time in the ablative (distinctis diebus) comes off a bit obscure, because the Latin there is itself idiomatic; some compromise probably needs to be made for greater English clarity. But I do believe it extremely difficult to offer any supposed synonym that captures all of what perdurare means in English better than, well, the word itself.

Words are words, and every translation, no mater how expert (or not) is a interpretation, a creative composition which is either more or less faithful to the sense of the original, but never absolutely completely so. But especially in our grappling with legislative texts, the very sort of texts Latin is so innately suited for, I will always prefer to take it word by painful word.