As I’ve said previously, the rule of the last antecedent is derived from the Latin maxim ad proximum antecedens fiat relatio nisi impediatur sententia (“Let reference be to the nearest antecedent, unless the meaning hinders”). When I last discussed that maxim, I said that it had appeared in English case reports at least as long ago as the early 1600s.
I’ve now traced the maxim back another 200 years, more or less, to a case report from 1431. Or should I say, 14-fucking-31, if you’ll pardon my Law French.
Here is a link to an image of the page, and here is a link to an English-language summary — scroll down to “Language Notes” and it’s the next line. And here is an image of the page where the maxim is cited:
The maxim appears at lines 7-8.
To put the date in perspective, this predates Gutenberg’s Bible. And surely this was not the first use of the maxim; for all we know, it may have originated hundreds of years earlier — possibly in Roman law or Biblical scholarship. Unfortunately, I’m not optimistic about the possibility of finding earlier uses, since they would by definition exist only in manuscript form.
As for the provenance of the case report in which the maxim appears: It is part of the Year Books, which were England’s earliest law reports:
The Year Books are the law reports of medieval England. The earliest examples date from about 1268, and the last in the printed series are for the year 1535. The Year Books are our principal source materials for the development of legal doctrines, concepts, and methods from 1290 to 1535, a period during which the common law developed into recognizable form. More than 22,000 individual reports or ‘pleas’ have been printed, and others remain in manuscript. This database indexes all year book reports printed in the chronological series for all years between 1268 and 1535, and many of the year book reports printed only in alphabetical abridgements. Of these reports, all 6,901 from 1399 through 1535 have been fully indexed and paraphrased in this database. [Link.]
The image above is taken from the Vulgate edition of the Year Books, which according to Wikipedia “appeared in a series of volumes between 1678 and 1680, and which became the standard edition consulted by practising lawyers.”
h/t to Prof. David Seipp of the Boston University School of Law, for the database whence this small piece of the Middle Ages found its way to the 21st century.
Neal:
The natural word order of Latin is often quite different from that of English. If this maxim originated for Latin documents, that’s definitely a knock against it making sense in English.
Chris
One would think so. Which would make it all the more surprising that the rule of the last antecedent actually does make sense
as applied to English.
Neal:
I don;t think it makes a lot of sense as an interpretive rule. Given all of the contracts I’ve written, I’m sure that there are many, many instances in which both parties put a modifier at the end, intending it to apply to an entire string. Actual English usage seems pretty variable on that point (by comparison, for example, to an adjective preceding an entire list, which is almost always distributed across the entire list).
Chris
I agree that it’s not a reliable indicator of the parties’ subjective intent, but as I’ve said elsewhere, the result of applying the rule tracks what is known about how this kind of ambiguity tends to be resolved by readers. And under the “objective” approach to interpreting contracts, isn’t the question usually how the document would ordinarily be understood, rather than what the parties subjectively intended? Even if subjective intent becomes relevant due to the ambiguity, I would think that the reasonable understanding of the language would at least be a factor to be considered.