Molyneux

Molyneux (pronounced mol-un-ewe)

(1) A habitational surname of Norman origin, almost certainly from the town of Moulineaux-sur-Seine, in Normandy.

(2) A variant of the Old French Molineaux (an occupational surname for a miller).

(3) An Anglicized form of the Irish Ó Maol an Mhuaidh (descendant of the follower of the noble).

(4) In law in the state of New York, as the “Molineux Rule”, an evidentiary rule which defines the extent to which a prosecutor may introduce evidence of a defendant’s prior bad acts or crimes, not to show criminal propensity, but to “establish motive, opportunity, intent, common scheme or plan, knowledge, identity or absence of mistake or accident.”

(5) In philosophy, as the “Molyneux Problem”, a thought experiment which asks:”If someone born blind, who has learned to distinguish between a sphere and a cube by touch alone, upon suddenly gaining the power of sight, would they be able to distinguish those objects by sight alone, based on memory of tactile experience?”

Pre 900: The French surname Molyneux was from the Old French and is thought to have been a variant of De Molines or De Moulins, both linked to "Mill" (Molineaux the occupational surname for a miller) although the name is believed to have been habitation and form an unidentified place in France although some genealogists have concluded the de Moulins came from Moulineaux-sur-Seine, near Rouen, Normandy.  Despite the continental origin, the name is also much associated with various branches of the family in England and Ireland, the earliest known references pre-dating the Norman Conquest (1066).  The alternative spelling is Molineux.

The "Molyneux Problem" is named after Irish scientist and politician William Molyneux (1656–1698) who in 1688 sent a letter to the English physician & philosopher John Locke (1632–1704), asking: Could someone who was born blind, and able to distinguish a globe and a cube by touch, be able to immediately distinguish and name these shapes by sight if given the ability to see?  Obviously difficult to test experimentally, the problem prompted one memorable dialogue between Locke and Bishop George Berkeley (1685–1753 (who lent his name, pronounced phonetically to the US university) but it has long intrigued those from many disciplines, notably neurology and psychology, because sight is such a special attribute, the eyes being an outgrowth of the brain; the experience of an adult brain suddenly being required to interpret visual input would be profound and certainly impossible to imagine.  Philosophers since Locke have also pondered the problem because it raises issues such as the relationship between vision and touch and the extent to which some of the most basic components of knowledge (such as shape) can exist at birth or need entirely to be learned or experienced.

The Molineux Rule comes from a decision handed down by the Court of Appeals of New York in the case of People v Molineux (168 NY 264 (1901)).  Molineux had at first instance been convicted of murder in a trial which included evidence relating to his past conduct.  On appeal. the verdict was overturned on the basis that as a general principle: “…in both civil and criminal proceedings, that when evidence of other crimes, wrongs or acts committed by a person is offered for the purpose of raising an inference that the person is likely to have committed the crime charged or the act in issue, the evidence is inadmissible.”  The rationale for that is it creates a constitutional safeguard which acts to protect a defendant from members of a jury forming an assumption the accused had committed the offence with which they were charged because of past conduct which might have included being accused of similar crimes.  Modified sometimes by other precedent or statutes, similar rules of evidentiary exclusion operate in many common law jurisdictions.  It was the Molineux Rule lawyers for former film producer Harvey Weinstein (b 1952) used to have overturned his 2020 conviction for third degree rape.  In a 4:3 ruling, the court held the trial judge made fundamental errors in having “…erroneously admitted testimony of uncharged, alleged prior sexual acts against persons other than the complainants of the underlying crimes because that testimony served no material non-propensity purpose.” and therefore the only “...remedy for these egregious errors is a new trial.”

Harvey Weinstein and others.

Reaction to the decision of the appellate judges was of course swift and the opinion of the “black letter” lawyers was the court was correct because “…we don't want a court system convicting people based on testimony about allegations with which they’ve not been charged.”, added to which such evidence might induce a defendant not to submit to the cross-examination they’d have been prepared to undergo if only matters directly relevant to the charge(s) had been mentioned in court.  Although the Molineux Rule has been operative for well over a century, some did thing it surprising the trial judge was prepare to afford the prosecution such a generous latitude in its interpretation but it should be noted the Court of Appeal divided 4:3 so there was substantial support from the bench that what was admitted as evidence did fall within what are known as the “Molineux exceptions” which permit certain classes of testimony in what is known as “character evidence”.  That relies on the discretion of the judge who must weigh the value of the testimony versus the prejudicial effect it will have on the defendant.  In the majority judgment, the Court of Appeal made clear that in the common law system (so much of which is based on legal precedent), if the trial judge’s decision on admissibility was allowed to stand, there could (and likely would) be far-reaching consequences and their ruling was based on upholding the foundations of our criminal justice system in the opening paragraphs: "Under our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality. It is our solemn duty to diligently guard these rights regardless of the crime charged, the reputation of the accused, or the pressure to convict."

The strict operation of the Molineux Rule (which this ruling will ensure is observed more carefully) does encapsulate much of the core objection to the way courts operate in common law jurisdictions.  The common law first evolved into something recognizable as such in England & Wales after the thirteenth century and it spread around the world as the British Empire grew and that included the American colonies which, after achieving independence in the late eighteenth century as the United States of America, retained the legal inheritance.  The common law courts operate on what is known as the “adversarial system” as opposed to the “inquisitorial system” of the civil system based on the Code Napoléon, introduced in 1804 by Napoleon Bonaparte (1769–1821; leader of the French Republic 1799-1804 & Emperor of the French from 1804-1814 & 1815) and widely used in Europe and the countries of the old French Empire.  The criticism of the adversarial system is that the rules are based on the same principle as many adversarial contests such as football matches where the point of the rules is to ensure the game is decided on the pitch and neither team has any advantage beyond their own skill and application.

That’s admirable in sport but many do criticize court cases being conducted thus, the result at least sometimes being decided by the skill of the advocate and their ability to persuade.  Unlike the inquisitorial system where the object is supposed to be the determination of the truth, in the adversarial system, the truth can be something of an abstraction, the point being to win the case.  In that vein, many find the Molineux Rule strange, based on experience in just about every other aspect of life.  Someone choosing a new car, a bar of chocolate or a box of laundry detergent is likely to base their decision from their knowledge of other products from the same manufacturer, either from personal experience or the result of their research.  Most consumer organizations strongly would advise doing exactly that yet when the same person is sitting on a jury and being asked to decide if an accused is guilty of murder, rape or some other heinous offence, the rules don’t allow them to be told the accused has a history of doing exactly that.  All the jury is allowed to hear is evidence relating only to the matter to be adjudicated.  Under the Molineux Rule there are exceptions which allow “evidence of character” to be introduced but as a general principle, the past is hidden and that does suit the legal industry which is about winning cases.  The legal theorists are of course correct that the restrictions do ensure an accused can’t unfairly be judged by past conduct but for many, rules which seem to put a premium on the contest rather than the truth must seem strange.

Inquire & Enquire

Inquire (pronounced in-kwahyuhr)

(1) To seek information by questioning; to ask.

(2) To make an investigation (usually followed by into).

(3) To seek (obsolete).

(4) To question (a person) (obsolete).

1250–1300: From the Middle English enqueren & anqueren (to ask (a question), ask about, ask for (specific information); learn or find out by asking, seek information or knowledge; to conduct a legal or official investigation (into an alleged offense)), from the Latin inquīrere (to seek for), replacing the Middle English enqueren, from the Old French enquerre, also from Latin.  The construct in Latin was from in- (into) + quaerere (to seek).  The prefix -in is quirky because it can act either to negate or intensify.  The general rule is that when prepended to a noun or adjective, it reinforces the quality signified and when prepended to an adjective, it negates the meaning, the latter mostly in words borrowed from French.  The Latin prefix in- was from the Proto-Italic en-, from the primitive Indo-European n̥- (not), the zero-grade form of the negative particle ne (not) and was akin to ne-, nē & nī.  In Modern English it is from the Middle English in-, from Old English in- (in, into), from the Proto-Germanic in, from the primitive Indo-European en.  Inquiry & inquirer are nouns, inquiring is a noun, verb & adjective, inquires is a verb, inquirable & inquisitive are adjective and inquiringly is an adverb; the noun plural is inquiries.  The verb inquireth is listed by most as archaic and forms such as reinquired & reinquiring have been coined as needed.

So the in- in inquire is not related to in- (not), also a common prefix in Latin and this created a tradition of confusion which persists to this day.  In Ancient Rome, impressus could mean "pressed" or "unpressed; inaudire meant "to hear" but inauditus meant "unheard of; invocatus was "uncalled, uninvited," but invocare was "to call, appeal to".  In Late Latin investigabilis could mean "that may be searched into" or "that cannot be searched into”.  English picked up the confusion and it’s not merely a linguistic quirk because mixing up the meaning of inflammable could have ghastly consequences.  Fortunately, some of the duplicity has died out: Implume, noted from the 1610s meant "to feather," but implumed (from a decade or more earlier meant "unfeathered".  Impliable could be held to mean "capable of being implied" (1865) or "inflexible" (1734).  Impartible in the seventeenth century simultaneously could mean "incapable of being divided" or "capable of being imparted" and, surprisingly, impassionate can mean "free from passion" or "strongly stirred by passion" (used wrongly that certainly could have inintended consequences).  The adjective inanimate was generally understood to indicate "lifeless" but John Donne (1572–1631), when using inanimate as a verb meant "infuse with life or vigor." Irruption is "a breaking in" but irruptible is "unbreakable".

In addition to improve "use to one's profit", Middle English also had the fifteenth century verb improve meaning "to disprove".  To inculpate is "to accuse," but inculpable means "not culpable, free from blame".  Infestive (a creation of the 1560s, from infest) originally meant "troublesome, annoying" but by the 1620s meant "not festive".  Bafflingly, in Middle English, inflexible could mean both "incapable of being bent" or "capable of being swayed or moved".  During the seventeenth century, informed could mean "current in information" formed, animated" or "unformed, formless", an unhelpful situation the Oxford English Dictionary (OED) described as “an awkward use".  Just a bizarre was that in the mid-sixteenth century inhabited meant "dwelt in" yet within half-a-century was being used to describe "uninhabited".  Some dictionaries insist the adjectives unenquired & unenquiring really exist but there’s scant evidence of use.  A noted derivation with some history is inquisitor.  Synonyms and words with a similar sense include examine, inspect, interrogate, investigate, analyze, catechize, explore, grill, hit, knock, probe, check, prospect, pry, query, question, roast, scrutinize, search, seek & sift.

Enquire (pronounced en-kwahyuhr)

A variant form of inquire

Circa 1300: From the Middle English enqueren & anqueren, (to ask (a question), to ask about, to ask for (specific information); learn or find out by asking, seek information or knowledge; to conduct a legal or official investigation (into an alleged offense)), from the Old French enquerre (to ask, inquire about) (which persists in Modern French as enquérir) and directly from the Medieval Latin inquīrere (to seek for).  As long ago as the fourteenth century the spelling of the English word was changed following the Latin model, but, in the annoying way that happens sometimes in English, the half-Latinized enquire persists and some people have even invented “rules” about when it should be used instead of inquire.   Sensibly, the Americans ignore these suggestions and use inquire for all purposes.  In Old French the Latin in- often became en- and such was the influence on Middle English that the form spread and although English developed a strong tendency to revert to the Latin in-, this wasn’t universal, thus pairs such as enquire/inquire which is why there must always be some sympathy for those learning the language.  There was a native form, which in West Saxon usually appeared as on- (as in the Old English onliehtan (to enlighten)) and some of those verbs survived into Middle English (such as inwrite (to inscribe)) but all are said now to be long extinct.

Enquire or inquire?

Lindsay Lohan says the spelling is "inquiry" so that must be right.

The English word was re-spelled as early as the fourteenth century on the Latin model but the half-Latinized "enquire" has never wholly gone away.  Outside of North America, it's not unknown to come across documents where "inquire" & "enquire" both appear, not in tribute to a particular "rule" of use but just because it hasn't been noticed; it's probably most associated with documents which are partially the product of chunks of texts being "cut and paste".  In the US, where the enquire vs inquire "problem" doesn’t exist because inquire is universal, this must seem a strange and pointless squabble because hearing a sentence like "She enquired when the Court of Inquiry was to hold its hearings" would unambiguously be understood and if written down, there could be no confusion if the spelling forms were to appear in either order.  So,  some hold it would be a fine idea if the rest of the English-speaking world followed the sensible lead of the Americans and stuck to "inquire" but history suggests that’s not going to happen and some suggestions for a convention of use have been offered:

(1) Enquire & enquiry are "formal" words to convey the sense of "ask" whereas inquire & inquiry are used to describe some structured form of investigation (such as a "Court of Inquiry").

(2) Enquire is to be used in informal writing and inquire in formal text.

Neither of those suggestions seem to make as much sense as adopting the US spelling and probably just adds a needless layer to a simple word; enquire and inquire mean the same thing: to ask, to seek information, or to investigate. One is therefore unnecessary and enquire should be retired, simply on the basis the Americans already have and there’s lots of them.  Those who resist should follow the one golden rule which is consistency: whatever convention of use is adopted, exclusively it should be used. 

The ultimate court of inquiry, the Spanish Inquisition and the DDF

The Spanish Inquisition, conducting their inquiries.

The Tribunal del Santo Oficio de la Inquisición (Tribunal of the Holy Office of the Inquisition), known famously as the Inquisición española (Spanish Inquisition) was created in 1478 by the Roman Catholic Monarchs, King Ferdinand II (1452–1516; king of Aragon 1479-1516, king of Castile 1475-1504 (as Ferdinand V)) and Queen Isabella I (1451–1504; queen of Castile 1474-1504, queen of Aragon 1479-1504), its remit the enforcement of orthodox Church doctrine in their kingdoms.  Ostensibly established to combat heresy in Spain (though eventually its remit extended throughout the Spanish Empire), the real purpose was to consolidate the power of the monarchy of the newly unified Spanish kingdom.  Its methods were famously brutish and although many records were lost, it's thought close to two hundred-thousand individuals came to the attention of the Inquisition and as many as five-thousand may have been killed; during the tenure of Castilian Dominican friar Tomás de Torquemada (1420–1498), the first grand inquisitor, it's believed some two-thousand were burned at the stake.  Suppressed first by Joseph-Napoléon Bonaparte (1768–1844; king of Naples (1806–1808) and king of Spain (1808–1813)) in 1808, it was restored by Ferdinand VII (1784–1833; king of Spain 1808 & 1813-1830) in 1814, suppressed in 1820, and restored in 1823.  It was finally abolished in 1834 by the Spanish queen regent María Cristina de Borbón (Maria Christina of the Two Sicilies 1806–1878; queen consort of Spain from 1829-1833 and regent of the Kingdom 1833-1840).  Historians have noted that although the Spanish Inquisition didn't last into the twentieth century, there were more than echoes of its methods & techniques witnessed (on both sides) during the Spanish Civil War (1936-1939).  

Rome certainly understood the need to enforce doctrine and punish heretics but they wanted control of the processes, aware even then some of the excesses were proving to be counter-productive and the imperative was to create a body under the direct jurisdiction of the Holy See.  Formed in 1542, was emerged was an institution which in recent years has had a few instances of what in commerce (and increasingly by governments too) is called "re-branding".  Originally named the Supreme Sacred Congregation of the Roman and Universal Inquisition, between 1908-1965 it was known as the Supreme Sacred Congregation of the Holy Office before becoming Congregation for the Doctrine of the Faith (CDF), its best-known prefect (head) being the the German Cardinal Joseph Ratzinger (1927–2022) who, after serving as Chief Inquisitor between 1982-2005) was elected pope as Benedict XVI, serving until his unusual (though not unprecedented) resignation in 2013 when he decided to be styled pope emeritus, living in a kind of papal granny flat in the Vatican until his death.  In 2022, the institution was re-named the Dicastery for the Doctrine of the Faith (DDF) and despite it all, many continue to refer to it as "The Holy Office" (in public) or "The Inquisition" (in private).  There are now (even when under Cardinal Ratzinger as far as in known) no more torture chambers or burnings at the stake but the DDF remains a significant factional player in curia politics although Vatican watchers have detected a grudging softening in the DDF's expressions of doctrinal rigidity since the election of Pope Francis (b 1936; pope since 2013). 

MRDA

MRDA (pronounced emm-ahr-dee-ey)

The abbreviation of “Mandy Rice-Davies Applies”, an aphorism used in law and politics to refer to any denial which is transparently self-interested.

1963: An allusion to the statement “Well he would, wouldn't he?”, said by Welsh model Mandy Rice-Davies (1944-2004) during cross-examination in a trial at the Old Bailey (the central criminal court for England & Wales) associated with the Profumo affair.

Lord Astor, Mandy Rice-Davies and the Profumo Affair

The context of Ms Rice-Davies’s answer was the question: “Are you aware that Lord Astor denies any impropriety in his relationship with you?” and the answer “Well he would, wouldn't he?” elicited from those in the court “some amusement”.  MDRA (Mandy Rice-Davies Applies) thus became in law and politics an aphorism used as “verbal shorthand” to refer to any denial which is transparently self-interested although it doesn’t of necessity imply a denial is untrue.  In general use, the fragment from the trial is often misquoted as “Well he would say that, wouldn't he?” because that better encapsulates the meaning without being misleading.

Mandy Rice-Davis (left) and Christine Keeler (right), London, 1963.

The Profumo affair was one of those fits of morality which from time-to-time would afflict English society in the twentieth century and was a marvellous mix of class, sex, spying & money, all things which make a good scandal especially juicy.  John Profumo (1915-2006) was the UK’s Minister for War (the UK cabinet retained the position until 1964 although it was disestablished in the US in 1947) who, then 46, was found to be conducting an adulterous affair with 19 year old topless model Christine Keeler (1942-2017) at the same time she was also enjoying trysts with a Russian spy, attached to the Soviet embassy with the cover of naval attaché.  Although there are to this day differing interpretations of the scandal, there have never been any doubts this potential Cold-War conduit between a KGB spy and Her Majesty’s Secretary of State for War represented at least a potential conflict of interest.

Dr Evatt (left), comrade Molotov (centre) and Soviet translator Alexei Pavlov, exchanging MRDAs in Russian & English, London, 1942.

MRDAs are common in courtrooms and among politicians but some became legends.  In 1954, Dr HV Evatt (1894–1965; Australian attorney-general & foreign minister 1941-1949, and leader of opposition 1951-1960), in the midst of a particularly febrile period during the Cold War, wrote a letter to comrade Vyacheslav Molotov (1890–1986; Soviet foreign minister 1939-1949 & 1953-1956) asking if allegations of Soviet espionage in Australia were true.  Comrade Molotov of course wrote back, politely denying the USSR engaged in spying anywhere.  Assured, Evatt read the letter to the parliament and the members sat for a moment stunned until, on both sides, loudly laughing.  It was a MRDA before there were MRDAs.

The Profumo affair is noted also for being at least an influence in the end of the “age of deference” in England and while that’s often probably overstated, the immediate reaction and the aftermath proved it wasn’t only across colonial Africa that a “wind of change” was blowing.  The second Lord Astor (1907–1966) was emblematic of the upper classes of England who once would have expected deference from someone like Ms Rice-Davis, someone “not of the better classes” as his lordship might have put it.  Although what came to be known as the “swinging sixties” didn’t really begin until a couple of years after the Profumo affair when the baby-boomers began to come of age, the generational shift had by then become apparent and it was something surprisingly sudden as the interest of the young switched from pop music to politics.  As recently as the 1959 election campaign, the patrician Harold Macmillan (1894–1986; UK prime-minister 1957-1963) had told the working classes “most of you have never had it so good” and for the last time they would express their gratitude to their betters, delivering the Tories an increased majority, an impressive achievement for "the last of the old Edwardians" who, upon assuming the premiership in 1957 in the wake of the Suez debacle, had told the Queen he doubted his administration would last six weeks.

In the matter of Lehrmann v Network Ten Pty Limited [2024] FCA 369

Mr Justice Lee.

Justice Michael Lee (b 1965) in April 2024 handed down one of the more anticipated judgments of recent years, finding Bruce Lehrmann (b 1995), on the civil law test of the balance of probabilities, had raped Brittany Higgins (b 1993) on the sofa in a ministerial suite in Parliament House while the victim was affected by strong drink.  Apart from the heightened public interest in the verdict, lawyers were watching closely to see if there would be encouragement for those defending themselves in defamation cases, something which had been lent unexpected strength by an earlier judgment; although the matter of rape was central to the facts, Lehrmann v Network Ten was a defamation case.  However, for those who appreciate judicial findings for their use of language, Justice Lee didn’t disappoint and although neither Ms Rice-Davies nor MRDA were mentioned in his text, as he assessed the conduct and evidence of Mr Lehrmann, they may have come to mind.

Janet Albrechtsen in her study.

In his opening remarks, the judge acknowledged the case had become a cause celebre for many and that it was best described as “an omnishambles”, the construct being the Latin omni(s) (all) + shambles, from the Middle English schamels (plural of schamel), from the Old English sċeamol & sċamul (bench, stool), from the Proto-West Germanic skamul & skamil (stool, bench), from the Vulgar Latin scamellum, from the Classical Latin scamillum (little bench, ridge), from scamnum (bench, ridge, breadth of a field).  In English, shambles enjoyed a number of meanings including “a scene of great disorder or ruin”, “a cluttered or disorganized mess”, “a scene of bloodshed, carnage or devastation” or (most evocatively), “a slaughterhouse”.  As one read the judgement one could see why the judge was drawn to the word although, in the quiet of his chambers, “clusterfuck” may have been in his thoughts as he pondered the best euphemism.  Helpfully, one of the Murdoch press’s legal commentators, The Australian’s Janet Albrechtsen (b 1966; by Barry Goldwater out of Ayn Rand) who had been one of the journalists most interested in the case, informed the word nerds omnishambles (1) dated from 2009 when it was coined for the BBC political satire The Thick Of It and (2) had endured well enough to be named the Oxford English Dictionary’s (OED) 2021 Word of the Year.  The judge's linguistic flourish was a hint of things to come in what was one of the more readable recent judgments.

Noting Mr Lehrmann’s original criminal trial on the rape charge had been aborted (after having already been delayed for reasons related to the defamation matter) because of jury misconduct with a subsequent retrial not pursued because of the prosecution’s concern about the fragile mental state of the complainant, the judge observed “Having escaped the lion’s den, Mr Lehrmann made the mistake of coming back for his hat.”  In other words, Mr Lehrmann who could have walked away with no findings against him, lured by the millions of dollars to be gained, rolled the legal dice and was found to have committed rape.  He is of course not the first to fall victim to suffer self-inflicted legal injury in not dissimilar circumstances; the writers (from different literary traditions) Oscar Wilde (1854–1900) and Jeffrey Archer (b 1940) both were convicted and imprisoned as a consequence of them having initiated libel actions.  Whether Mr Lehrmann will now face a retrial in the matter of rape is in the hands of the Australian Capital Territory’s (ACT) Director of Public Prosecutions (DPP).  In such a case, it would be necessary to prove the event happened under the usual test in criminal law: beyond reasonable doubt.  Even if that isn’t pursued by the DPP, his time in courtrooms may not be over because it’s possible he may face action because of his conduct in this trial with the handling of certain documents and another unrelated matter is pending in Queensland.

In considering the evidence offered by Mr Lehrmann, the judge appears to have found some great moments in the history of MRDAs:

Commenting on his claim to having returned (after midnight following Friday evening’s hours of convivial drinking) to his Parliament House office to write papers about the French submarines and related government matters, he observed Mr Lehrmann “…hitherto had demonstrated no outward signs of being a workaholic.”  “To remark that Mr Lehrmann was a poor witness is an exercise in understatement.”

Regarding the claim Mr Lehrmann had made to someone to whom he’d just been introduced that he was “…waiting on a clearance to come through so that he could go and work at Asis.” (the Australian Security Intelligence Service; the external intelligence service al la the UK SIS (MI6) or the US CIA (although without the assassinations… as far as is known)), the judge observed she “…kept her well-founded incredulity to herself.”, such “Walter Mitty-like imaginings” demonstrating he “…had no compunction about departing from the truth if he thought it expedient.”

Lindsay Lohan and her lawyer in court, Los Angeles, December, 2011.

The reading of the judgement was live-streamed and the passage which got the loudest chuckle was in the discussion of Mr Lehrmann’s deciding whether he found Ms Higgins attractive.  In an interview on commercial television broadcast in 2023, he’d denied finding the young lady attractive, despite the existence of comments dating from 2019 indicating the opposite.  Pausing only briefly, Justice Lee delivered this news with an arched eyebrow:  “When confronted by this inconsistency, his attempt to explain it away by suggesting the attraction he felt for Ms Higgins was ‘just like [the attraction] I can find [in] anybody else in this [court]room, irrespective of gender’ was as disconcerting as it was unconvincing.”  The judge ordered to audience to suppress their laughter.

Even regarding submarines as a likely topic over drinks, his honour was sceptical: “With the exception of Mr Lehrmann, no one who gave evidence as to their time at The Dock could recall discussing Australia’s submarine contracts with France at either table. The lack of recollection of any discussion of this topic is intuitively unsurprising.  Declaiming on the topics of who was building submarines and where they were being built was not quite the repartee one would usually expect to hear over a convivial drink on a Friday night between 20 [something]-year-olds out for a good time – even if (with respect) one would not expect the badinage of the Algonquin Round Table.” (an early twentieth century, shifting aggregation of men & women of letters who met over lunch in New York’s Algonquin Hotel, their barbs and thoughts often appearing in their newspaper & magazine columns; they dubbed themselves “The Vicious Circle” and were a sort of Cliveden set without the politics.  Cliveden was a stately home in Buckinghamshire, the country seat of Lord Astor and the scene of many of the events central to the Profumo affair).

The judge was forensic in his deconstruction of Mt Lehrmann’s MRDA he returned to Parliament House after being out drinking with Ms Higgins and others in order to retrieve his keys: “If the reason Mr Lehrmann needed to return to Parliament House was to collect his keys, he could have texted his girlfriend to have her meet him at the door or called her.  Mr Lehrmann asks me to accept the proposition that it was ‘a process to get in’ to his shared flat and that to avoid this complication, he preferred to: (a) go out of his way to go back to work in the early hours; (b) lie to Parliament House security; (c) sign the necessary register; (d) be issued with a pass; (e) go through a metal detector; (f) be escorted by a security guard to his office; (g) obtain his keys from his office; (h) book another Uber; (i) go back through a Parliamentary exit; (j) meet the ride-share car; and then (k) ride home.”

Bruce Lehrmann leaving the court after the verdict was delivered.

In psychiatry, distinction is made between the “habitual” and “compulsive” liar and while this wasn’t something Justice Lee explored, he did in one passage sum up his assessment of the likely relationship to truth in anything Mr Lehrmann might say: “I do not think Mr Lehrmann is a compulsive liar, and some of the untruths he told during his evidence may sometimes have been due to carelessness and confusion, but I am satisfied that in important respects he told deliberate lies. I would not accept anything he said except where it amounted to an admission, accorded with the inherent probabilities, or was corroborated by a contemporaneous document or a witness whose evidence I accept.”

One fun footnote from the case was a non-substantive matter, Ms Lisa Wilkinson (b 1959), the Network 10 journalist at the centre of the defamation claim, objecting to being characterized as a “tabloid journalist”.  It transpired her employment history included stints with Dolly, the Australian Women’s Weekly and commercial television including the Beauty & the Beast show.  Unfortunately, she wasn’t asked to define what she thought “tabloid journalism” meant; perhaps Justice Lee decided he’d heard enough MRDAs that day.

On the basis that, on the balance of probabilities, Mr Lehrmann did rape Ms Higgins, his claim for damages against Network Ten for defamatory material earlier broadcast was dismissed.  The judge found the material indeed had the capacity to defame but because the imputations substantially were true, their defense was sustained.  So, the only millions of dollars now to be discussed concern the legal costs: who is to pay whom, the judge asking the party’s submission be handed to the court by 22 April.  Mr Lehrmann’s legal team has not indicated if they’re contemplating an appeal.

Legside

Legside (pronounced leg-sahyd)

(1) In the terminology of cricket (also as onside), in conjunction with “offside”, the half of the cricket field behind the batter in their normal batting stance.

(2) In the terminology of horse racing, in conjunction with “offside”, the sides of the horse relative to the rider.

Pre 1800s: The construct was leg + side.  Leg was from the Middle English leg & legge, from the Old Norse leggr (leg, calf, bone of the arm or leg, hollow tube, stalk), from the Proto-Germanic lagjaz & lagwijaz (leg, thigh).  Although the source is uncertain, the Scandinavian forms may have come from a primitive Indo-European root used to mean “to bend” which would likely also have been linked with the Old High German Bein (bone, leg).  It was cognate with the Scots leg (leg), the Icelandic leggur (leg, limb), the Norwegian Bokmål legg (leg), the Norwegian Nynorsk legg (leg), the Swedish lägg (leg, shank, shaft), the Danish læg (leg), the Lombardic lagi (thigh, shank, leg), the Latin lacertus (limb, arm), and the Persian لنگ (leng).  After it entered the language, it mostly displaced the native Old English term sċanca (from which Modern English ultimately gained “shank”) which was probably from a root meaning “crooked” (in the literal sense of “bent” rather than the figurative used of crooked Hillary Clinton).  Side was from the Middle English side, from the Old English sīde (flanks of a person, the long part or aspect of anything), from the Proto-Germanic sīdǭ (side, flank, edge, shore), from the primitive Indo-European sēy- (to send, throw, drop, sow, deposit).  It was cognate with the Saterland Frisian Siede (side), the West Frisian side (side), the Dutch zijde & zij (side), the German Low German Sied (side), the German Seite (side), the Danish & Norwegian side (side) and the Swedish sida (side).  The Proto-Germanic sīdō was productive, being the source also of the Old Saxon sida, the Old Norse siða (flank; side of meat; coast), the Danish & Middle Dutch side, the Old High German sita and the German Seite.  Legside is an adjective.

A cricket field as described with a right-hander at the crease (batting); the batter will be standing with their bat held to the offside (there’s no confusion with the concept of “offside” used in football and the rugby codes because in cricket there’s no such rule).

In cricket, the term “legside” (used also as “leg side” or “on side”) is used to refer to the half of the field corresponding to a batter’s non-dominant hand (viewed from their perspective); the legside can thus be thought of as the half of the ground “behind” the while the “offside” is that in front.  This means that what is legside and what is offside is dynamic depending on whether the batter is left or right-handed and because in a match it’s not unusual for one of each to be batting during an over (the basic component of a match, each over now consisting of six deliveries of the ball directed sequentially at the batters), as they change ends, legside and offside can swap.  This has no practical significance except that because many of the fielding positions differ according to whether a left or right-hander is the striker.  That’s not the sole determinate of where a fielding captain will choose to set his field because what’s referred to as a “legside” or “offside” field will often be used in deference to the batter’s tendencies of play.  It is though the main structural component of field settings.  The only exception to this is when cricket is played in unusual conditions such as on the deck of an aircraft carrier (remarkably, it’s been done quite often) but there’s still a legside & offside, shifting as required between port & starboard just as left & right are swapped ashore.

The weird world of cricket's fielding positions.

Quite when legside & offside first came to be used in cricket isn't known but they’ve been part of the terminology of the sport since the rules of the game became formalized when the MCC (Marylebone Cricket Club) first codified the "Laws of Cricket" in what now seem a remarkably slim volume published in 1788, the year following the club’s founding.  There had earlier been rule books, the earliest known to have existed in the 1730s (although no copies appear to have survived) but whether the terms were then is use isn’t known.  What is suspected is legside and offside were borrowed from the turf where, in horse racing jargon, they describe the sides of the horse relative to the rider.  The use of the terms to split the field is reflected also in the names of some of the fielding positions, many of which are self-explanatory while some remain mysterious although presumably they must have seemed a good idea at the time.  One curious survivor of the culture wars which banished "batsman" & "fieldsman" to the shame of being microaggressions is "third man" which continues to be used in the men's game although in women's competition, all seem to have settled on "third", a similar clipping to that which saw "nightwatch" replace "nightwatchman"; third man surely can't last.  The ones which follow the dichotomous description of the field (although curiously “leg” is an element of some and “on” for others) including the pairings “silly mid on” & silly mid off” and “long on & long off”, while in other cases the “leg” is a modifier, thus “slip & leg slip” and “gully & leg gully”.  Some positions use different terminology depending on which side of the field they’re positioned, “point” on the offside being “square leg” on the other while fractional variations in positioning means there is lexicon of terms such as “deep backward square leg” and “wide long off” (which experts will distinguish from a “wideish long off”).

Leg theory

Leg theory was a polite term for what came to be known as the infamous “bodyline” tactic.  In cricket, when bowling, the basic idea is to hit the stumps (the three upright timbers behind the batter), the object being to dislodge the bails (the pair of small wooden pieces which sit in grooves, atop the three).  That done, the batter is “dismissed” and the batting side has to send a replacement, this going on until ten batters have been dismissed, ending the innings.  In essence therefore, the core idea is to aim at the stumps but there are other ways to secure a dismissal such as a shot by the batter being caught on the full by a fielder, thus the attraction of bowling “wide of the off-stump” (the one of the three closest to the off side) to entice the batter to hit a ball in the air to be caught or have one come "off the edge" of the bat to be “caught behind”.  It was realized early on there was little to be gained by bowling down the legside except restricting the scoring because the batter safely could ignore the delivery, content they couldn’t be dismissed LBW (leg before wicket, where but for the intervention of the protective pads on the legs, the ball would have hit the wicket) because, under the rules, if the ball hits the pitch outside the line of the leg stump, the LBW rule can’t be invoked.

A batter can however be caught from a legside delivery and as early as the nineteenth century this was known as leg theory, practiced mostly the slow bowlers who relied on flight in the air and spin of the pitch to beguile the batter.  Many had some success with the approach, the batters unable to resist the temptation of playing a shot to the legside field where the fielders tended often to be fewer.  On the slower, damper pitches of places like England or New Zealand, the technique offered little prospect for the fast bowlers who were usually more effective the faster they bowled but on the generally fast, true decks in Australia, there was an opportunity because a fast, short-pitched (one which hits the pitch first in the bowlers half of the pitch before searing up towards the batter) delivery with a legside line would, disconcertingly, tend at upwards of 90 mph (145 km/h) towards the batter’s head.  The idea was that in attempting to avoid injury by fending off the ball with the bat, the batter would be dismissed, caught by one of the many fielders “packed” on the legside, the other component of leg theory.

Leg theory: Lindsay Lohan’s legs.

For this reason it came to be called “fast leg theory” and it was used off and on by many sides (in Australia and England) during the 1920s but it gained its infamy (and the more evocative “bodyline” label) during the MCC’s (the designation touring England teams used until the 1970s) 1932-1933 Ashes tour of Australia.  Adopted as a tactic against the Australian batter Donald Bradman (1908–2001) against whom nothing else seemed effective (the English noting on the 1930 tour of England he’d once scored 300 runs in a day off his own bat at Leeds), bodyline became controversial after a number of batters were struck high on the body, one suffering a skull fracture (this an era in which helmets and other upper-body protection were unknown).  Such was the reaction the matter was a diplomatic incident, discussed by the respective cabinets in London and Canberra while acerbic cables were exchanged between the ACBC (Australian Cricket Board of Control) and the MCC.

Japanese leg theory: Zettai ryōiki (絶対領域) is a Japanese term which translates literally as “absolute territory” and is used variously in anime gaming and the surrounding cultural milieu.  In fashion, it refers to that area of visible bare skin above the socks (classically the above-the-knee variety) but below the hemline of a miniskirt, shorts or top.

Japanese schoolgirls, long the trend-setters of the nation's fashions, like to pair zettai ryouiki with solid fluffy (also called "plushies") leg warmers.  So influential are they that the roaming pack in this image, although they've picked up the aesthetic, are not actually real school girls.  So, beware of imitations: Tokyo, April 2024.

High-level interventions calmed thing sufficiently for the tour to continue which ended with the tourists winning the series (and thus the Ashes) 4-1.  The tour remains the high-water mark of fast leg theory because although it continued to be used when conditions were suitable, the effectiveness was stunted by batters adjusting their techniques and, later in the decade, the MCC updated their rule book explicitly to proscribe “direct attack” (ie deliveries designed to hit the batter rather than the stumps) bowling, leaving the judgment of what constituted that to the umpires.  Although unrelated and an attempt to counter the “negative” legside techniques which had evolved in the 1950s to limit scoring, further rule changes in 1957 banned the placement of more than two fielders behind square on the leg side, thus rendering impossible the setting of a leg theory field.  Despite all this, what came to be called “intimidatory short pitched bowling” continued, one of the reasons helmets began to appear in the 1970s and the rule which now applies is that only one such delivery is permitted per over.  It has never been a matter entirely about sportsmanship and within the past decade, the Australian test player Phillip Hughes (1988-2014) was killed when struck on the neck (while wearing a helmet) by a short-pitched delivery which severed an artery.

Vulgar

Vulgar (pronounced vuhl-ger)

(1) Characterized by ignorance of or lack of good breeding or taste.

(2) Indecent; obscene; lewd, ribald.

(3) Crude, coarse; unrefined, boorish, rude.

(4) As, the vulgar masses, of, relating to, or constituting the ordinary people in a society (mostly archaic).

(5) Current; popular; common; crude; coarse; unrefined.

(6) As the vulgar tongue, spoken by, or being in the language spoken by, the people generally; the vernacular; colloquial speech (mostly archaic).

(7) Lacking in distinction, aesthetic value, or charm; banal; ordinary.

(8) Denoting a form of a language (applied most often to Latin), current among common people, used especially at a period when the formal language is has become archaic and no longer general spoken use (often with initial capital; usually pre-nominal).

(9) In mathematics, a representation of a fractional number based on ordinary or everyday arithmetic as opposed to decimal fractions.  It refers to one in which two whole numbers (the numerator and denominator) are placed above and below a horizontal line (neither can be zero).  Vulgar fractions are also described as common or simple fractions.  Now rare, in US English, the term vulgar faction is obsolete.

1350-1400: From the early Modern English vulgare, from the vulgāris (belonging to the multitude), from volgus & vulgus (mob; common folk), from the Sanskrit vargah (division, group), from the primitive Indo-European wl̥k.  The construct of vulgāris was vulg(us) + -āris (the suffix a form of -ālis, used to form an adjective, usually from a noun, indicating a relationship or a pertaining to).  As an example of the forks of the root, related European words included the Welsh gwala (plenty, sufficiency), the Ancient Greek ἁλία (halía) (assembly), eilein (to press, throng) & εἰλέω (eiléō) (to compress) and the Old Church Slavonic великъ (velikŭ) (great).  The meaning coarse, low, ill-bred was first recorded in the 1640s, probably from earlier use meaning people belonging to the ordinary class dating from the 1530s.  The derived negative forms such as unvulgar and unvulgarly do exist but are rare to the point of being probably obsolete.  When used in disapprobation, the synonyms include boorish, naughty, tawdry, profane, tasteless, ribald, off-color, disgusting, obscene, impolite, suggestive, indecent, crude, scatological, nasty, filthy & coarse.  As applied to linguists, they include conversational, colloquial, vernacular & folk.  In mathematics, they are common (and most frequently), simple.

Vulgar Latin

Vulgar Latin or Sermo Vulgaris (common speech) is a generic term for the non-standard (as opposed to classical) sociolects of Latin from which the Romance languages developed.  It’s said the works written in Latin during classical times almost always used Classical rather than Vulgar Latin and while that is certainly true of what has survived, the literal volume of ephemeral material written in the vernacular is unknown.  Vulgar Latin was used by inhabitants of the Roman Empire and subsequently became a technical term from Latin and Romance-language philology referring to the unwritten varieties of a Latinised language spoken mainly by Italo-Celtic populations governed by the Roman Republic and the Roman Empire.  Traces appear in some inscriptions, such as graffiti or advertisements but almost certainly the educated population mainly responsible for Classical Latin would also have spoken Vulgar Latin in certain contexts irrespective of their socio-economic background.  In that, things were probably little different then than now, educated people using at least some of the phraseology of the less well-spoken, even if only ironically.

Campaign buttons used in the 1964 US presidential campaign: Republican Party  (left) and Democrat Party (right).  It wouldn't be for many decades that the red would be standardized as the color of the Republicans and blue for the Democrats (as the result of a somewhat random allocation of colors by the television networks when illustrating results with charts and other graphics.

It shouldn’t be confused with "barracks Latin" (originally a casual description of the "rough" language of soldiers and others compared with "polite, educated Latin" of the Roman elite) which is the rendering, with humorous intent, of common English phrases into something which sounds as though it might be Latin.  One of the Monty Python films used the barracks Latin names Sillius Soddus and Biggus Dickus and the best known is Illegitimi non carborundum, an aphorism translating as "don't let the bastards grind you down".  First recorded among soldiers during World War II (1939-1945), an association from which it gained the "barracks" label (although it's not clear in which branch of the military it originated nor even if the coiners were British or American).  It caught on and was famously popularized by Republican candidate Barry Goldwater (1909-1998) during his disastrous 1964 presidential campaign.  Despite the Kennedy assassination, those who voted (and there were many who were prevented from exercising that constitutional right) in the 1964 election represented the United States in the era during which prosperity and optimism were were more widely distributed than at any point in its history.  Vietnam, Watergate, malaise and trickle-down economics would follow.  In the 1964 election, Goldwater lost to President Lyndon Johnson (LBJ, 1908–1973; US President 1963-1969) in one of the biggest landslides in US electoral history.  It was also one of the more polarized campaigns and the electorate responded better to Johnson's "building a great society" than Goldwater's "fear and loathing" although such were the atmospherics that it's now remembered more as "crooked old Lyndon vs crazy old Barry".  

Goldwater hung in his office a sign reminding him of his dictum although his used an embellished barracks Latin: Noli permittere Illegitimatis carborundum (Never let the bastards grind you down).  He always denied being a Freemason and admitted membership only of a fraternal organization known as the Benevolent and Protective Order of Elks.

Although an avowed conservative (with at least some of what that implies), he wasn't above using vulgar English if he thought there was a point to be made.  When told Johnson aide Walter Jenkins (1918–1985)  had been arrested in a YMCA (Young Men's Christian Association) toilet in the act of "performing an indecency upon another man", although he declined to use the event to attack the Democrats (some suggesting he had no wish to provoke the Republicans into probing for evidence of homosexuality among his staff), in "off the record" comments to journalists he would complain: "What a way to win an election, communists and cocksuckers".  As it would transpire, others in rge Republican machine didn't share Goldwater's reticence and tried to use the arrest as a smear against the administration but the general public reaction was more amused than outraged.  Jenkins paid a US$50 fine for "disorderly conduct".

In the election, Goldwater did however win five states in the South, the best result by a Republican in the region since the reconstruction-era after the US Civil War (1861-1865), a harbinger of the shift in political alignment which would transform the South from a Democratic stronghold (the so-called “Solid South”) into a bastion of Republican strength.  There were many reasons for this and it may be some of them were probably more significant than Goldwater's uncompromising positions on economics and his staunch anti-communism.  Nevertheless, his mystique among American conservatives remains based on the legend of him being the intellectual trailblazer for the “Regan Revolution” and the transformation of the Republican party from a centrist aggregation of the north-eastern establishment into a collective of regional and sectional pressure groups, the factionalism prone to unleashing the forces of extremism which now contest for control.  After Ronald Reagan’s (1911–2004; US President 1981-1989) victory in 1980, one Washington Post columnist noted the feeling of those who had voted for Goldwater in 1964 being one of vindication, regretting only it had taken “…sixteen years to count the votes".

The vulgar, indecent, obscene, lewd & ribald

Although the technical uses in mathematics and the categorization of Latin strains are long established, the best known and most common use of “vulgar” is to describe things considered indecent, obscene, lewd or ribald.  Given the habits and tastes of men, there’s little shortage of such material thus to be described but shifts in public perception and tolerance means vulgarity is a moving target and there is certainly no consensus, opinions varying not only between but within regions, class, generations and probably just about any segmentation of society yet devised.  The unifying factor though is usually anything involving sex or any conventionally sexualized body parts (such as the foot fetishists free to indulge most aspects of their hobby).  Although in recent decades there’s been something of a retreat, this remains a permissive age as regards what were once considered vulgarities.

Vulgarity remains in the eye of the beholder.

So, something vulgar can sometimes be judged an obscenity and is often lewd or ribald but not of necessity indecent.  The linguistic tussle is because the words “obscene” and “indecent” appear sometimes in legislation and something so defined can even attract criminal sanction whereas anything lewd is subject merely to social disapprobation while ribald carries the connotation of “humorously vulgar”.  Standards shift (and sometimes are nudged along by this force or that) and it is almost always a subjective judgement as Potter Stewart (1915–1985; associate justice of the US Supreme Court 1958-1981) explained in his famous concurring judgement in Jacobellis v Ohio (378 U.S. 184 (1964)): "I shall not today attempt further to define the kinds of material I understand to be embraced within [the shorthand description “hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it…

That may have been what prosecuting counsel Mervyn Griffith-Jones (1909-1979) had in mind when in R v Penguin Books Ltd ((1961) Crim LR 176) he asked the jury to consider whether DH Lawrence’s (1885–1930) novel Lady Chatterley's Lover (1928) was too obscene to be read by the British, alleging it “…induced lustful thoughts in the minds of those who read it” and begging them to ponder “Is it a book that you would even wish your wife or your servants to read?”.  There was a time when an English jury might have allowed themselves to be told by one of their “betters” what they should be permitted to read but those days were done and the jury (more likely to be servants than masters) had decided they would decide which vulgarities they would tolerate.