specialty and extradition and bacon

The principal way we use specialty today in common speech is not the way it has been historically understood. The purpose of this essay is to lay out our current understanding and then trace its history to the root of the word (specialis in Latin means "particular" or "individual") and show how it was used in common speech and, especially, in law.

The Saturday Review had this line in one of its 1860 editions: "Mr. Lovell Reeve..has a specialty--to use a neologism of the day. It is to illustrate books with stereograph." By the next year the term could be used to describe one's specific area of study or research: "Physicians...who do not intend to make a specialty of laryngoscopy." Within two decades someone could say: "There is a constant tendency on the part of energetic intellectual workers...to concentrate their energies on a minute specialty." Thus, the "age of specialization," which we think was only invented in the last generation or so, really goes back more than 120 years. Your specialty is the area in which you have expertise and to which you devote considerable attention.

Earlier Usages

This usage, however, is modern. The OED attests the word specialty as early as the 14th century to mean "special affection" or "favor," though no examples of its use in that way are more recent than about 1450. More common were uses of speciality to mean "particularity in description," a "special manner or degree" or a "special or particular quality or characteristic." Here are a few examples. From Wyclif (ca. 1380), "But, to discende down in specialte..." or, from 1526: "After that we shall entreate in a more specyalty..ye holy lyfe of religyon." When we today might say "in greater detail" or "in focus," would have been known 500 years ago as "in specialty." Use of specialty in the sense of a particular quality is evident in quotations from Shakespeare and Dickens. From Troilus & Cressida: "The specialty of Rule hath been neglected." Or, from Great Expectations, "The specialty of the occasion caused our talk to be less dry and hard." The OED goes on to give other shades of meaning of the term, but all of them have to do with something individual, special or particular. So, when a theologian wrote in 1683 that there is "always a specialty of Grace towards the Elect," he stressed the particular quality of God's grace towards the chosen ones.

Specialty in Law--2 Uses

The use of specialty in law goes back at least to the 15th century (the earliest OED attestation) and probably earlier. I ran into the word again yesterday when I was reading Bacon's comments to his 23rd maxim (written about 1600), where he talks about "matters of speciality." What he meant in that context had nothing to do with particular or special events; he was referring to a specific kind of legal document: a contract under seal. A contract under seal was invested with the highest degree of formality known to the common law. Parties would heat up wax, prepare a document, spread an adhesive on the document, apply a ring or some distinctive mark to the heated wax, and impress it on the adhesive. Thus, one would attach one's "seal" to a document. You didn't need a "signature" on top of it, since the seal communicated sufficiently who was entering into the contract or writing the document. The word can be used to describe types of documents, as in the quotation from 1528: "Certain munimentes, evidencez, and specialties, touching and apperteynynge unto our monastery" or the quotation from 1644: "There's no legal Instrument, no Bond, Bill, or Specialty can be write but upon his seal'd paper." Or, from 1621: "Those persons whoe have neglected to produce theire said evidences, grantes, and specialties, to bee looked into by the Maior." Then, if any doubted what this meant, Broom's 1856 Commentaries on the Common Law said that a specialty..is distinguished from a simple contract in writing by certain solemnities attendant on its execution--viz. by sealing and delivery." Thus, from hoary antiquity we have the notion of a specialty in law.

But there is one more use of the word specialty in legal speech of which I was unaware until preparing this essay, and that is in its connection with the law of extradition. Extradition is "the surrender by one nation to another of an individual accused or convicted of an offense outside its own territory, and within the territorial jurisdiction of the other, which, being competent to try and punish him, demands the surrender" (from 42 Santa Clara LR 1061, 1063 (2002). The question arises, 'On what basis is a person surrendered to the country that wants to try him?' Answer: by a government's presenting evidence of probable cause of crime. An agreement is then drawn up between the two countries before the fugitive is surrendered. When extradition happens by formal means [and there is a considerable discussion of whether a powerful country might simply evade the requirements of a formal agreement when it really wants to prosecute someone who has skipped its jurisdiction], one of the important requirements of the document is to observe the doctrine of specialty.

The US Supreme Court created the doctrine of specialty in extadition proceedings more than 100 years ago in the Rauscher case (119 US 407 (1886)). In that case the defendant (Rauscher) was convicted of murder and extradited pursuant to a formal extradition treaty. Murder was the only extraditable charge but upon arrival back in the US, he was charged also with "cruel and unusual punishment." The Court held that it was unreasonable to allow the extraditing country to prosecute the extradited person "without any limitation, implied or otherwise." The Court held that the accused shall be tried only for the offense with which he is charged in the extradition proceedings.

The word specialty enters into extradition law, then, because this specialty provision (the actual charge which is the extraditable offense) is a sealed agreement between the two countries. The doctrine is implicitly recognized by a federal statute (18 USC 3186 states that a defendant extradited from the US is "to be tried for the offense of which charged.."). However, this doctrine also is subject to much debate these days. Post-Rauscher cases have reflected less interest in confining the US to the express charges indicated in the specialty and, with the spotty history of the US's desire to comply with international law, we can see how the doctrine is particularly susceptible to erosion in this country. Indeed, the issue that motivated the law review article cited above is where a person might be subject to the death penalty for an offense committed in this country but is now in a country which does not enforce the death penalty. Can the US go beyond the extradition document (which wouldn't probably permit imposition of the death penalty) and try a person for a capital crime once returning to the United States? Policy arguments can be made for both positions.

Conclusion

Thus we see how a word that we exclusively use in our contemporary speech to describe one's profession has a much richer history to it. It is like the proverbial tip of the iceberg. The real action is under the surface.

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