Autrefois acquit.

I was reading Stephen Sedley’s LRB review (Vol. 44 No. 18 · 22 September 2022; archived) of The Mandela Brief: Sydney Kentridge and the Trials of Apartheid by Thomas Grant when I hit this paragraph:

When the trial began in August 1970 Kentridge, brought in as leading counsel, took the preliminary point that the new indictment was so similar in detail to the one on which the accused had been acquitted that this amounted to an illicit retrial. To his and everybody else’s surprise, the judge (Justice Viljoen, an individual with no liberal credentials) accepted the submission – still known in Law French as ‘autrefois acquit’ – and stopped the trial. The work by Kentridge and his team, matching each detail of the second indictment with the first, had been colossal, but the submission it yielded was unanswerable.

I always enjoy bits of Law French, and of course I wanted to know the traditional pronunciation, so I went to the OED (entry revised 2017) and found the very satisfying /ˌəʊtərfɔɪz əˈkwɪt/ (oh-tuhr-foyz-uh-KWIT). U.S. English has the pathetic /ˌoʊtrəfwɑ əˈkwi/ (oh-truhff-wah-uh-KWEE) and the merely boring /ˌoʊtrəfwɑ əˈki/ (oh-truhff-wah-uh-KEE) as well, but as usual I’m sticking with Ye Good Olde Wayes.

For the benefit of the lawyers among us, I’ll quote the next paragraph as well:

In addition to the fruits of hard work, every advocate is entitled to one piece of dumb luck. In Kentridge’s case this came when, following the Biko verdict and the announcement that no police officers were to be prosecuted, an informal gathering was held at his home in Cape Town to discuss the possibility of bringing a civil lawsuit for damages on behalf of Biko’s family. By mistake an invitation was sent to the state pathologist, Johan Loubser, who had testified at the inquest that prompt medical attention would not have saved Biko’s life. Loubser turned up at the meeting, and Kentridge, instead of getting rid of him, invited him to start the discussion. Loubser, unprompted, said he now thought Biko might have survived if given early medical attention, and the state eventually settled the family’s claim for a realistic sum. You can call it luck, but how many lawyers would have simply asked Loubser to leave?


  1. J.W. Brewer says

    This is an instance what is more commonly known in U.S. legal jargon as “double jeopardy” (a paraphrase of language in the federal Bill of Rights), but the older Law French jargon does have a certain majesty. There’s also “autrefois convict,” as well as the variant spelling “autrefoits.” I don’t know my Law French well enough to say if that’s a genuine variant or just a typo/mistake that has occurred on multiple occasions over the centuries.

    More broadly, the anecdote illustrates how apartheid-era South Africa, while wicked and illiberal in any number of ways, was not really consolidated as a strictly authoritarian regime. The judiciary, in particular, had a professional self-conception of themselves as independent and not beholden to doing the government’s will, and while perfectly willing to enforce duly-enacted laws that were substantively harsh, wicked and/or illiberal, they generally believed in the rule of law, and the importance of technicalities and loopholes, etc. and were happy to from time to time rule in favor of defendants in bad political odor with the government, just to prove to their own uneasy consciences that they weren’t mere political hacks. I have read that on average the judges of Afrikaner ethnicity (like Justice Viljoen) tended to be more “literalistic” and less “pragmatic” than those of British-descent ethnicity, which was a cultural trait that could sometimes be leveraged to a defendant’s benefit by a sufficiently clever defense lawyer.

  2. David Marjanović says

    the older Law French jargon does have a certain majesty

    I see that and raise ne bis in idem

  3. the older Law French jargon does have a certain majesty

    I see that and raise estoppel, < estouppail ‘bung’.

  4. J.W. Brewer says

    “But the judges,
    Being free of mediaeval scholarship,
    Will pay no attention to this,
    And there will be only the more confusion,
    Replevin, estoppel, espavin and what not.”

  5. variant spelling “autrefoits”

    The OED entry originally mentioned has, “< Law French auterfoits acquite (1557 or earlier).”

    That’s how Blackstone had it.

    Some of the many Anglo-Norman forms seem to have leaked into Law French, too, such as autrefoites. It seems to be in Les Plees del Coron, although there doesn’t seem to be a good searchable copy.

  6. The twin evils of metrication and Modern Language Teaching have seen /ˌævwɑːdjuːˈpwɑː/ make inroads into good old /ˌævədəˈpɔɪz/ , but I’m sure Britain’s Brexit brains trust has the avoirdupois to roll back that tide.

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