Exchequer

Exchequer (pronounced eks-chek-er or iks-chek-er)

(1) A treasury, as of a state or nation.

(2) The governmental department in charge of the public revenues (often initial capital letter).

(3) A now disestablished English office administering the royal revenues and determining all cases affecting them.

(4) An ancient English common-law court of civil jurisdiction in which cases affecting the revenues of the crown were tried, now merged in the King's Bench Division of the High Court.  It was usually styled as the Court of Exchequer.

(5) Informal slang for one’s personal finances.

1250-1300: From Middle English escheker and eschequier, borrowed from the Anglo-French escheker and eschekier, derived from the Old French eschequier and escheccheck (chessboard, counting table).  Source was the Medieval Latin scaccarium (chess board).  The meaning with which it’s now most associated (government finances), emerged under the Norman kings of England, the basis the design of the cloth (divided in squares), covering the tables on which accounts of revenue were reckoned with counters; these reminded all who saw them of a chess board and the name was adopted.  The English respelling with an -x- was because of the erroneous medieval belief that it originally was a Latin ex- word (the old alternative spelling exchecker is long obsolete).  The most common modern use is the UK office of Chancellor of the Exchequer, equivalent variously to finance ministers or treasurers in other systems.  Confusingly for those not political junkies, the UK's prime-minister is formerly styled First Lord of the Treasury and the Chancellor, the Second Lord.  Exchequer is a noun & verb; the noun plural is exchequers.  When used to refer to an established institution (such as the UK's department of treasury), it's correct to use an initial capital.

Court of Exchequer Chamber

Although its origins date from the fourteenth century, it was the statute of 1585 which established the Court of Exchequer Chamber in essentially the form it would remain until its abolition by the Judicature Acts of 1873-1875 when it was absorbed into the Queen’s Bench Division of the High Court.  Always an appellate court for common law civil actions, the court heard references from the King's Bench, the Court of Exchequer and, from 1830, directly rather than indirectly from the Court of Common Pleas.  It was a classic English appeal court in that it was constituted by four judges belonging to the two courts that had been uninvolved at first instance although, in matters of especial importance, twelve common law judges, four from each division below, sitting in Exchequer Chamber, might be asked to determine a point of law, the matter being referred by the court hearing the case rather than the parties.  Appeals from its judgments were, by leave, to the House of Lords but, because the Exchequer Chamber was regarded as a specialist and authoritative body, this was rare before the nineteenth century and rules of judgment by the Chamber were considered definitive statements of the law.

Court of Exchequer (1808) by William Henry Pyne (1769-1843).

Most appeals to the chamber were from the Exchequer of Pleas or Court of Exchequer, a court which dealt with matters of equity and expanded in the twelfth and thirteenth centuries because the doing business in the Court of Chancery was a slow and expensive business.  In the manner of the evolution of the English courts, the Exchequer's jurisdiction, at various times, was common law, equity, or both, the prevailing trend being for discretionary areas of its jurisdiction to expand.  By the nineteenth century, Exchequer and Chancery enjoyed similar jurisdictions and with the Judicature Acts, the Exchequer was formally dissolved as a judicial body by an Order in Council of 16 December 1880.

The style of cloth spread across the tables of the courts of Exchequer has proved durable in fashion, the bold pattern working especially well with stark color contrasts, white with black, red, purple or navy blue the most popular combinations.  The gingham Macy midi dress (left) is a classic example but Lindsay Lohan (right) demonstrates how the look can be achieved using one’s own skin, using a Black Pash shirt & Alaia skirt combo (the t-strap sandals were by Miu Miu but an opportunity was missed by not adding a sympathetic clutch purse), The World's First Fabulous Fund Fair in aid of The Naked Heart Foundation, The Roundhouse, London, February 2015.

Appellate

Appellate (pronounced uh-pel-it)

(1) Of or pertaining to that which can be reviewed by a power or authority vested with the necessary jurisdiction.

(2) A court, tribunal or other body having the power or authority to review and decide appeals made against decisions issued by subordinate individuals or institutions; that which legally can be appealed to.

1726: From the Classical Latin appellātus (called upon, summoned), past participle of appellāre (to appeal) and perfect passive participle of appellō (address as, call by name), the construct being ad (to, towards) +‎ pellō (push; impress).  The noun appellant (one who appeals from a lower to a higher court) dates from the 1610s, from the Anglo-French & French appellant, noun use of present participle of the French appeller (make an appeal), from the Old French apeler, from the Latin appellare (appeal to).  Appellate is an adjective and appellant is a noun; the noun plural is appellants.

Unrelated to the hierarchy of courts, there are words used formal grammar and linguistics including the noun appellative (a common noun; an epithet), the adjective appellative (of or pertaining to an appellative noun or common noun; of or pertaining to ascribing names), the noun appellativeness (the state or quality of being appellative), the adverb appellatively (after the manner of appellative nouns; so as to express whole classes or species and the noun appellativization (the process of a proper name becoming a common noun (such as hoover; kleenex; google et al)).  The antonym is proprialization (White House, Grand Canyon et al).  The noun appellation (designation, name given to a person, thing, or class) entered English in the mid-fifteenth century, from the twelfth century Old French apelacion (name, denomination), from the Latin appellationem (nominative appellatio) (an addressing, accosting; an appeal; a name, title), the noun of action from the past-participle stem of appellare (address, appeal to, name).  An appellation is a descriptive and specific term (Joan of Arc’s appellation was Arc; John the Baptist's was Baptist while those who were most associated with the political discussions which culminated in the formation of the United States of America (USA) are given the appellation “Founding Fathers”.  An appellation differs thus from an official or honorary title such as earl, bishop, general, professor et al but technically, these too are appellations.  The adjective appellative dates from the early fifteenth century (of a noun, serving to name or mark out, common (as opposed to proper))," from the Latin appellativus, from appellat-, past-participle stem of appellare (address, name, appeal to).  As a noun, it was in use by at least the 1590s in the sense of “a common” and by the 1630s as a “title or descriptive name”.

Courts of appeal

Appellate courts, usually styled as courts of appeal, are those vested with the jurisdiction to an appeal from a subordinate court within the same hierarchy.  In Australia, as a general principle, the court system exists in three layers (1) a trial court, (2) an intermediate appellate court and (3) a final court of appeal although variations exist and appeals from lower courts are not always of right; in many cases an application for leave to appeal can be declined.  Details of appellate jurisdiction in English courts appear in Sir William Blackstone's (1723–1780) Commentaries on the Laws of England (1765–1769), a matrix which has since been a thing of repeated change.  The hierarchical nature of the appellate food-chain is of significance because ultimately it's the final stage which is decisive: A case might for example be heard by eleven eminent judges, one in the supreme court at first instance, three on a court of appeal and seven at a high court so if the first appeal is decided 3-0 and the final 4-3 then one party can have enjoyed the concurrence of 7 of the 11 yet still lose.  That's how the appellate system works.

The Australian court systems are now unitary which means that, depending on the law(s) involved, the avenue of appeal lies to a state, territory or Commonwealth court, appeals to the Privy Council (actually the Judicial Committee of the Privy Council (JCPC)) in London sundered for Commonwealth matters in 1968 and for those involving the states in 1986 by the Australia Acts although there is one historic relic.  Section 74 of the constitution provides for an appeal from the High Court of Australia (HCA) to the the Privy Council if the court issues a certificate that it is appropriate for the Privy Council to determine an inter se (a case concerning constitutional relations between the Commonwealth and one or more states or between states) matter.  The only such certificate was issued in 1912 and in 1985, the High Court judges (unanimously) observed that the power to grant such a certificate “…has long since been spent… and is obsolete".  However, it’s there with full legal force so, in the strict constitutional sense, an appeal from the HCA to the JCPC, however unlikely, remains possible.

In the matter of Grand Theft Auto (GTA5): Lindsay Lohan v Take-Two Interactive Software Inc et al, New York Court of Appeals (No 24, pp1-11, 29 March 2018)

Truly a martyr, Lindsay Lohan hasn't had much luck in appellate courts.  In a case which took an unremarkable four years from filing to reach New York’s highest appellate court, Lindsay Lohan’s suit against the makers of video game Grand Theft Auto V was dismissed.  In a unanimous ruling in March 2018, six judges of the New York Court of Appeals rejected her invasion of privacy claim which alleged one of the game’s characters was based on her.  The judges found the "actress/singer" in the game merely resembled a “generic young woman” rather than anyone specific.  Unfortunately the judges seemed unacquainted with the concept of the “basic white girl” which might have made the judgment more of a fun read.

Beware of imitations: The real Lindsay Lohan and the GTA 5 ersatz, a mere "generic young woman".

Concurring with the 2016 ruling of the New York County Supreme Court which, on appeal, also found for the game’s makers, the judges, as a point of law, accepted the claim a computer game’s character "could be construed a portrait", which "could constitute an invasion of an individual’s privacy" but, on the facts of the case, the likeness was "not sufficiently strong".  The “… artistic renderings are an indistinct, satirical representation of the style, look and persona of a modern, beach-going young woman... that is not recognizable as the plaintiff" Judge Eugene Fahey (b 1951; associate judge of New York Court of Appeals from 2015-2021) wrote in his ruling.  Ms Lohan’s lawyers did not seek leave to appeal.

In happier times: Gladys Berejiklian (b 1970; Premier (Liberal) of New South Wales 2017-2021) & Daryl Maguire (b 1959, MLA (Liberal) for Wagga Wagga 1999-2018).

Also not having much luck with a matter taken on appeal is former New South Wales (NSW, Australia) Premier Gladys Berejiklian, compelled in 2021 to resign after being found to have committed an act of Billigung, her crucial phrase in a secretly recorded conversation being "I don't need to know about that bit" when her then (secret) lover began to tell her some details of his dubious deals.  To that pertinent observation, Mr Maguire replied "No, you don't".  The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of Mr Maguire.

The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything.  The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977.  Albert Speer (1905-1981, Nazi Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution.  This he corrected, explaining Billigung in this context meant “looking away”.  This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it.  Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what).  He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.”  Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue.  When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again".  The moment passed and within weeks he would be dead, dying "on the job" in police slang.  Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust.  He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg  Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.  Had he then told the truth, he'd have been hanged.

The words used by Ms Berejiklian: "I don't need to know about that bit" are best understood in modern use as an attempt to manufacture "plausible deniability" and may be compared with how Herr Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia".  Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe".  Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there".  That was what he later called Billigung.  There's obviously quite some difference between knowledge of the Holocaust and the dodgy dealings of a politician but the Billigung principle is the same. However, the former premier may have been comforted that unlike the IMT at Nuremberg, the ICAC wasn't vested with capital jurisdiction so there was that.

Enjoying their pipes: Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.     

On 1 October 2021, the NSW ICAC (Independent Commission against Corruption) announced an investigation into the former premier's conduct in office, later handing down a finding she had committed “serious corrupt conduct”.  Interestingly,  despite that, the ICAC made no recommendation criminal charges be pursued because the evidence Ms Berejiklian was required to provide to the ICAC wouldn’t be admissible in a court because there, the rules of evidence are different and a defendant can’t be compelled to provide an answer which might be self-incriminating.  In other words a politician can be forced to tell the truth when before the ICAC but not before a court when charged.  That’s an aspect of the common law’s adversarial system which has been much criticized but it’s one of the doctrines which underpins Western law where there is a presumption of innocence and the onus of proof of guilt beyond reasonable doubt lies with the prosecution.

Ms Berejiklian challenged the findings and validity of the ICAC’s findings, her appeal heard by the NSW Court of Appeal, the state’s highest appellate court.  Her grounds for the appeal were claims (1) the ICAC made errors of law and (2) their report may have been delivered outside its legal authority due the expiration of the term of one of the ICAC’s assistant commissioners prior to the report being delivered.  In a split (2-1) decision handed down in July 2024, the court dismissed the appeal (with costs), the dissenting judge finding that because one assistant commissioner was engaged as a consultant after her term had expired (a role which included assisting in drafting the final report and writing assessments of the credibility of witnesses including Ms Berejiklian) what they did was act outside the limits of the authority conferred on a consultant.  The majority disagreed, finding the appointment as a consultant was in all ways “valid and effective” and also rejected the other grounds cited in the appeal.

So the ICAC’s finding of “serious corrupt conduct” stands.  Responding to the court’s decision, Ms Berejiklian didn’t mention that “c-word”) but thanked the court for its consideration given “...the limited nature of a challenge that can be made to ICAC findings by any citizen.  As the court noted, the ICAC Act does not permit a ‘merits’ review of the findings of ICAC.”  She also noted the split decision and concluded “Serving the people of NSW was an honour and privilege which I never took for granted. I always worked my hardest to look after the welfare and interests of the people of NSW.” 

Appellate courts, the hair police and black letter law

Appellate courts are best known for their rulings in cases of great public interest or legal significance; in the former category these typically are those involving celebrities, sex or anything especially gruesome and in the latter, constitutional matters.  There are exceptions (and some appellate courts do also function in certain specialized matters as courts of first instance) and the US Supreme Court (USSC) has agreed to hear parking-ticket and other minor matters if the law under which a conviction was obtained happened in a jurisdiction where the offence was deemed one of absolute liability and an appeal not permitted.  In those matters, the court held that in the US, a legal principle existed that the state could not convict a citizen of something without granting a means of appealing the decision.  Courts of appeal also hear the quirky and bizarre and in 2022 an appeal was lodged in the Supreme Court of Japan, a young woman in Osaka Prefecture seeking to overturn a ruling from the Osaka High Court that her former high school’s rules and guidance forcing her to dye her brown hair black were lawful.

The young lady had in 2015 enrolled in a high school (operated by the prefectural government) and in the original case (decided by the Osaka District Court) she alleged teachers had at least weekly told her to dye her hair black, instructions which continued despite her explanation she was born with brown hair and it was her natural color.  In September 2016, she began refusing to go to school, her suit against the prefectural government alleging she had suffered mental stress.  In 2021, the district court ordered the prefectural government to pay ¥330,000 (US$3,100) to the former student for certain actions (such as such as removing her name from school rosters after she stopped attending) but ruled also the school’s enforcement of the hair-related regulation exceed the discretionary authority it had been granted.  The plaintiff took the case to Osaka High Court (the first appellate layer) which held that, on the basis: “a wide range of discretion must be permitted for school education in order to allow diversified educational guidance in line with individual and collective conditions”, the ruling of the district court was upheld.  The case was well publicized and attracted much public interest (and comment) and, presumably nudged, the Osaka’s Prefectural Board of Education undertook a survey of rules at high schools under their control but concluded the “compulsory black hair” rule was “necessary”, issuing a statement saying “We will meticulously explain the necessity in order to gain understanding from students’ parents”.  That didn’t please the by now bolshie (former) schoolgirl and in her appeal to the Supreme Court (the next appellate layer) claimed banning brown hair was “unconstitutional”, citing Article 13 of Japan’s Constitution, which stipulates people’s right to pursue happiness.

The case attracted the interest of Doshisha University’s Professor Kayoko Oshima (b 1959) who explained the substantive matter was more the repeated demands the girl “dye her hair black rather than the rule itself”, his point being that the purpose of the rule was to prevent the dying of hair to ensure lurid greens or blues (or, God forbid, blondes) weren’t seen and in the case of someone with natural brown hair, the ruling shouldn’t be enforced.  In other words, for these purposes there should be the legal fiction that “brown is black”, something like the “honorary white” status the Apartheid-era South African government would sometimes grant to visiting PoCs (persons of color; typically athletes or politicians).  The rule, according to the professor, was thus rational but, in certain circumstances, its enforcement was not; an example of the “unintended consequences” which sometimes occur in the application of “black letter law”.

While the matter proceed through Japan's not especially rapid civil system, news organizations began reporting other interesting rules school impose on their female students including mandating white underwear and banning pony-tails on the basis that were the nape of the neck so scandalously to be exposed, it would risk “sexually exciting” male students.  Hair color, length and pony-tails are subject obviously to visual inspection but it's not clear if the underwear dictates are enforced by the same method.  The wide publication of these rules drew much derision and in response, early in 2022, the Tokyo prefecture announced those with natural hair other than black would no longer be required to dye to conform and that underwear need no longer exclusively be white.  The Tokyo authorities took an omnibus approach to reform, announcing also that a wider range of hairstyles would be permitted including the “two-block” (short on the sides and back while long on top) which was interesting because like the also permitted bob, the risk of napes being flaunted was obviously there.  Legal observers commented it was an example of a typically Japanese attempt to be flexible yet not be seen over-turning long defended-rules.  Thus the pony-tail proscription stands even though its rationale was undermined by the new permissiveness extending to the bob; again, black letter law.  Collectively, the “draconian rules” are known in Japan asブラック校則 (buraku kosoku) (black rules) and they have existed since the 1970s when it was noted “foreign influences” were beginning to intrude, resulting in previously unknown "behavioral issues".  As well as hair color and seductive pony tails, the most rigorously policed seems to have been skirt length, particular attention devoted to detecting the devious trick of “skirt-folding”, the standard workaround for those seeking the “above-knee look”.  Knees, it would seem, are thought as potentially provocative as the naked nape of the neck.

Ai Nishida San (b 1992) as she is (left) and as her school decided history would remember her (left).

Interestingly, high-tech Japanese school administrators have proved that even if the day comes when they can no longer make black hair compulsorily, with a little judicious digital editing, retrospectively they can make it seem as if uniformity is maintained.  In 2021, one student circulated a “before & after” pair of images, one her school photograph in untouched form (left), the other as it appeared in her school’s yearbook (right), the latter with hair in an acceptably shiny black.  Commenting on the editing, the former student said the message conveyed by the practice was it “…enforces the idea that black straight hair, a stereotypically Japanese look, is right”, the obvious implication being anything else is wrong and thus un-Japanese.  Her school had actually been accommodating, telling her that because it was her natural color, she was exempt the attention of the hair police and she thought little more about it until she received her 2007 yearbook when she realized she had been rendered “more Japanese”.  Ai Nishida San called the school’s actions “racist” and while, in the narrow technical sense, it might be more correct to suggest the motives were “racialist”, it’s certainly either and hardly in the spirit of the submission Japan’s delegation to the Paris Peace Conference (1919-1920) made, arguing for racial equality to be recognized as one of the core concepts underpinning international relations in the post-war (which turned out to be the inter-war) era.

Bench

Bench (pronounced bench)

(1) A long seat (without arm or back-rest) for two or more people:

(2) A seat occupied by an official, especially a judge in a courtroom.

(3) Such a seat as a symbol of the office of an individual judge or the judiciary.

(4) The office or dignity of various other officials, or the officials themselves.

(5) In certain team sports, the seat (literally or figuratively) on which the reserve (substitute) players sit during a game while not playing and on which “starting side” players sit while substituted.

(6) The quality and number of the players named as substitutes.

(7) By extension, the quality and number of professionals or experts in reserve, to be called upon as needed:

(8) As a clipping of workbench, the worktable of those engaged in trades.

(9) In interior design, certain fixed flat surfaces (kitchen bench, bathroom bench etc).

(10) A platform on which animals or objects are placed for exhibition.

(11) In farming, a hollow on a hillside formed by sheep.

(12) In surveying, a bracket used to mount land surveying equipment onto a stone or a wall.

(13) In certain legislatures, as “front bench” (the office-holding members of a government or opposition who sit on the bench at the front of their side of the assembly), “back bench” (those elected members not appointed to an office who sit on benches behind) and “cross-bench” (those not members of the party in government or formal opposition who sit on other benches).  The terms are sometimes literal but depending on an assembly’s architecture or the size of a government’s majority, others can sometimes “overflow” to the physical “cross benches”.  Thus there are “front benchers”, “back benchers” & “cross benchers” (sometimes hyphenated).

(14) In geography, a shelf-like area of rock with steep slopes above and below, especially one marking a former shoreline.

(15) In extractive mining, a step or working elevation in a mine.

(16) In science (usually as “at the bench”), to distinguish between being engaged actively in research and concurrent or subsequent administrative functions.

(17) To furnish with benches (now rare).

(18) To seat on a bench or on the bench (now rare).

(19) In extractive mining, to cut away the working faces of benches.

(20) In certain team sports, to substitute or remove a player from a game or relegate them to the reserve squad.

Pre 1000: From the Middle English bench, benk & bynk, from the Old English benc (bench; long seat (especially if backless)), from then Proto-West Germanic banki, from the Proto-Germanic bankon & bankiz (bench), from the primitive Indo-European bheg.  It was cognate with the Scots benk & bink, the West Frisian bank, the Dutch bank, the Old High German Bank, the Old Norse bekkr, the Old Frisian benk, the Danish bænk, the Swedish bänk and the Icelandic bekkur, all from a Germanic source and all of which meant “bench”.  In the Old English there were the verbs bencian (to make benches) and bencsittend (one who sits on a bench).  The dialectal spellings benk & bink are both long obsolete.  Bench & benching are nouns & verbs, bencher is a noun, benched is a verb & adjective and benchy & benchlike are adjectives; the noun plural is benches.

The source of the idea of the “bench as a type of long seat” is thought to come from a riparian imagery (natural earthen incline beside a body of water) and etymologists speculate the original notion was of a “man-made earthwork used as a seat”.  Bench was from the late fourteenth century used of the tables on which merchants displayed their wares and that may have been a borrowing from the reference to the seat the judge would occupy in a court of law, that use emerging early in the 1300s and coming soon to mean “judges collectively, office of a judge, the judiciary”.  Whether it was actually an allusion to customers “judging the goods displayed” is speculative.  The use in team sports of “the bench” being the “reserve or substitute team members” was drawn from the actual physical bench on the sideline on which those players would sit while not on the field.  The earliest known reference to the existence of furniture used for this purpose is from the US in 1899 but extending this generally to the “reserve of players” in baseball, football etc seems not to have begun until 1909.  In sport, the idiomatic forms include “bench player” (one habitually selected only in the reserves and not the “starting side”), “benched” (a player substituted during play and “sent to the bench”, either because of poor performance or as part of a planned rotation, “injury bench” (players substituted due to injury), “bench warmer (or “bench sitter”, or “bench jockey”) (one whose career has plateaued as a “bench player”, “warming the bench”) 

Bench has attracted many modifiers describing use including “bench grinder”, “bench saw”, “bench drill”, “sawbench”, “kitchen bench”, “deacon's bench”, “friendship bench”, “bench easel”, “mourners' bench”, “piano bench” (a “piano stool” for two), “preacher’s bench” et al.  The noun & verb “benchmark” refers to the optimal results obtained when testing something or someone on a “test bench” although the use is often conceptual, a physical “test bench” not necessarily part of the processes and even some structures in engineering referred to as a “test bench” may bear no relationship to any actual “bench” however described.

Bench seats ranged from the austerely functional to the luxurious: 1971 Holden HQ Belmont Station Sedan (station wagon or estate-car) in vinyl (turquoise) (left) and 1974 Imperial LeBaron four-door hardtop (right) in chestnut leather (though not actually “fine Corinthian leather” which was exclusive to the Cordoba (1975-1983)), the tufted “pillowed” upholstery a signature of the US luxury cars during an era in which they were forced to abandon high-performance.  Imperial's advertising copy noted of the brochure’s photograph: “...while the passenger restraint system with starter interlock is not shown, it is standard on all Imperials.”  The marketing types didn't like seat-belts messing up their photos.

Bench seat for four: the improbable 1948 Davis Divan.  The blue car (one of a dozen survivors of the 17 built) was restored by the Petersen Automotive Museum in Los Angeles where it is on display.

In cars and such, a “bench seat” differs from a “bucket” or “individual” seat in that comfortably it can accommodate two or more occupants, the comparison with furniture being the difference between a “chair” and a “sofa”.  In commercial vehicles, bench seats commonly can seat four but in cars the recommended (and eventually legal) limit was typically three although the truly bizarre Davis Divan (1948) featured a bench allowing four abreast seating for four adults, something which would have been an interesting experience for the quartet because a quirk of the suspension system was the long, pointed nose of the thing actually rose under braking.  The three-wheeled Divan was the brainchild of “automotive entrepreneur” (some historians are less kind) Glen Gordon “Gary” Davis (1904-1973) who put some effort into building the prototypes, not enough into preparation for actual production but much into raising funds from “investors”, a goodly chunk of which apparently was spent on real estate, entertaining and mink coats for “friends” (with all that implies).  He had a flair for slogans so many investors were attracted but the project proved chimeric, Davis tried and convicted of fraud & grand theft, spending two years in prison.  The name Divan was used as an allusion to the car's wide bench seat.  It was from the French divan, from the Ottoman Turkish دیوان (divan), from the Iranian Persian دیوان (divân), from the Classical Persian دیوان (dēwān), from Middle Persian dpywʾn' or dywʾn' (dēwān) (archive, collected writings, compilation of works”), from the Sumerian dub.  The sense was of a sofa-like piece of furniture comprising a mattress lying against the wall and on either the floor or an elevated structure.  Part of the tradition of interior decorating in the Middle East, in the West divans are sometimes called “ottomans”; those with an internal storage compartment: “box ottomans”.

In courts of the common law traditions the terms “bench” & “bar” date from the medieval age and remain part of courtroom terminology.  “The bench” was originally the seat on which judges at while presiding, the early furniture apparently a simple wooden bench as one would find at many long dining tables and in the manner typical of the way English evolves, “bench” came to be used of judges collectively and of the institution of the judiciary itself.  The “bar” was the physical barrier separating the spectators and participants of a trial from the area where the lawyers and judges conducted the proceedings, thus the “bar table” being that at which the advocates sat and the right to practice law before the bench being “passing the bar”, familiar in the modern US phrase “passing the bar exam” or the English form “called to the bar”.  As “bench” became a synecdoche for the judiciary, “bar” came to be used of the lawyers although in jurisdictions where there is a separation between those who appear in court (barristers) and those who do not (solicitors) “bar” was applied only to the former and even after reforms in some abolished the distinctions between certain branches of the law, specialist practitioners continue often to be referred to as the “equity bar” & “common law bar”.  There’s thus the apparent anomaly of the use of “bencher” (recorded in the 1580s) being used to mean “senior member of an inn of court”, all of whom would have been members of “the bar”.  Presumably the idea was one of “approaching the bench” or (more mischievously) “aspiring to the bench”.  The bench-warrant (one issued by a judge, as opposed to one issued by a magistrate or justice of the peace (JP) dates from the 1690s. 

An illuminated manuscript (circa 1460) which is the earliest known depiction of the Court of King's Bench in session.

In England, the Court of King’s Bench (KB) (or Queen’s Bench (QB) depending on who was on the throne) began in the twelfth century as a court at which the monarch literally presided; it was a circuit court which would, from time-to-time, travel around the counties hearing cases.  The Court of KB was thus in some sense “virtual”, whatever wooden bench upon which he sat becoming the KB for the duration of the trial.  Kings would cease to sit as judges and the KB later was interpolated into the system of courts (there would be many internecine squabbles over the years) until (as the Court of Queen’s Bench), under the Supreme Court of Judicature Act (1873), it, along with the Court of Common Pleas, the Court of Exchequer and Court of Chancery were merged to become the High Court of Justice, each of the absorbed institutions becoming a division.  The Common Pleas and Exchequer Division were abolished in 1880 when the High Court was re-organized into the Chancery Division, Queen's Bench Division and the Probate, Divorce and Admiralty Division (the latter memorably known as “wills, wives & wrecks” in legal slang).  The origin of the KB is a hint of why a king or queen can’t appear before a court in the UK or other places in which they remain head of state: Although it is in a practical sense now a legal fiction, all courts of law are “their courts” of which they remain the highest judge.

Benches afforced with foreign judges, the Chinese Communist Party and Hong Kong’s national security law

Multi-national benches are not uncommon.  There have been courts operating under the auspices of the League of Nations (LoN; 1920-1946) & United Nations (UN; since 1945) such as the International Criminal Court (ICC), the International Court of Justice (ICJ) and the various ad-hoc bodies set up to handle prosecutions related to crimes in specific locations (Rwandan, the former Yugoslavia et al) and the UK had the Judicial Committee of the Privy Council (JCPC) which included senior judges from the Commonwealth.  The JCPC functioned not only as a final court of appeal for Commonwealth nations (a role for a handful it still fulfils) but also as the appellate tribunal for a number of domestic bodies including some ecclesiastical bodies, admiralty matters and even matters from the usually obscure Disciplinary Committee of the Royal College of Veterinary Surgeons.  There were also the International Military Tribunals (IMT) which tried matters arising from the conduct of German & Japanese defendants from World War II (1939-1945), the bench of the latter Tokyo Tribunal notably diverse although those of the subsequent dozen trials in Nuremberg were staffed exclusively by US judges.  A number of former colonies also use foreign judges (and not always from the former colonial power).

However, what remains unusual is the matter of the Chinese Communist Party (CCP) deciding to have foreign judges serve on Hong Kong’s Court of Final Appeal (HKCFA), established in 1997 when the Hong Kong Special Administrative Region (HKSAR) was created upon Beijing regaining sovereignty (under the “one country, two systems” (1C2S)) principle, with the end of British colonial rule.  At that point, the HKCFA became the territory’s highest judicial institution, replacing the JCPC in London.  On the HKCFA’s bench sits the Chief Justice (a Hong Kong national), several “Permanent Judges” and some two-dozen odd “Non-permanent Judges” who may be recruited from Hong Kong or from among lawyers of the requisite background from any overseas common law jurisdiction.  As non-permanent judges, appointments have been drawn (from bar & bench) from Canada, Australia, New Zealand and the UK.

Lindsay Lohan, foreign judge on the bench of The Masked Singer (2019), a singing competition, the Australian franchise of a format which began in the ROK (Republic of Korea (South Korea)) as King of Mask Singer.

While it may seem strange a developed country like the People’s Republic of China (The PRC, the world’s second largest economy, a permanent member of the UN Security Council and since 1965 the final member of the original “Club of Five” declared nuclear powers) would have foreign judges sitting in one of its superior courts, on the mainland the PRC operates under a civil law system which, like the tradition in continental European, is based primarily on written statutes and codes, unlike common law systems, which rely heavily on case law and judicial precedent.  As a British colony, Hong Kong had used common law and under that system had become a major regional and international presence, something in part due to its judicial system being perceived as fair an uncorrupted; it was a “rule of law” state.  In the PRC there simply wasn’t a body of judges or lawyers with the necessary background in common law to staff the territory’s highest appellate court and significantly, at the time of the handover from the Raj, Hong Kong was of great importance to the PRC’s economy and the CCP understood it would be critical to maintain confidence in the rule of law, investors and overseas corporations with Hong Kong resident interests needing to be assured matters such as contracts would continue as before to be enforceable.

So it was, literally, “business as usual”, whatever may have been the fears about the political undercurrent.  The growth of the mainland economy since 1997 has been such that the HKSAR now constitutes only a small fraction of the national economy but analysts (some of whom provide advice to the CCP) understand the linkages running through the territory remain highly useful for Beijing and some long-standing conduits are still used for back-channel communications about this and that.  As far as business is concerned, the operation of the legal system has remained satisfactory, even though the CCP ensured that Beijing retained a reserved power to overturn the HKCFA’s decisions.

The colonial era building where now sits the Hong Kong Court of Final Appeal.  Formally opened in 1912, it was built with granite in the neo-classical style and between 1985-2011 was the seat of the Legislative Council (LegCo).

However, in 2020, a “National Security Law” (technically the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region and thus usually written in English as the “NSL”) was imposed.  While not aimed at the regulation of business or economic matters, it was wide in its scope and claims of application (the extraterritoriality extending worldwide), essentially extending to the territory many of the laws of the mainland regarding “political activities” and matters of “free speech”, the latter widely interpreted by the CCP.  Citing the “political situation”, two British judges in June 2024 resigned from the HKCFA, prompted by Beijing’s recent crackdown on dissent in the city, something made possible by the NSL.  In his published letter, one judge, his rationale for departure notwithstanding, did say he continued “…to have full confidence in the court and the total independence of its members.”  As early as 2020, one Australian judge had already resigned, followed by two others from the UK, both saying the Hong Kong government had “…departed from values of political freedom and freedom of expression.”  The CCP may have anticipated some objection from the overseas judges because, since the passage of the NSL, no overseas judge has been allocated to hear the “security-related” cases.  The judicial disquiet seemed not to trouble the territory’s chief executive, former police officer John Lee (Ka-chiu) (b 1957) who said the overseas appointments would continue to help “…maintain confidence in the judicial system and… strong ties with other common law jurisdictions.”  In response to the departing judge’s comment, he claimed the NSL had “no effect” on judicial independence and the only difference was that “…national security is now better safeguarded.”

Early in June, the Hong Kong authorities arrested two men and one woman attending a FIFA World Cup qualification match against Iran, their offence being “turning their backs to the pitch and not standing during the performance of the national anthem”, a police spokesman adding that anybody “…who publicly and intentionally insults the national anthem in any way in committing a crime.”  Before the NSL was imposed, bolshie Hongkongers were known to boo the anthem to express discontent with their rulers; that definitely will no longer be tolerated.  The match ended Iran 4: Hong Kong 2 but despite that, more than ever the HKSAR and the Islamic Republic have much in common.

Privity

Privity (pronounced priv-i-tee)

(1) Private or secret knowledge.

(2) Participation in the knowledge of something private or secret, especially as implying concurrence or consent.

(3) Privacy or secrecy (obsolete).

(4) In medieval theology, a divine mystery; something known only to God, or revealed only in the Holy Scriptures (obsolete).

(5) The genitals (archaic, and only in the plural).

(6) In law, a relationship between parties seen as being a result of their mutual interest or participation in a given transaction, usually in contract.

(7) The fact of being privy to something; knowledge, compliance (now rare).

1175–1225: From the Anglo-Norman priveté & privitee and the Middle English privete & private, from the Old French priveté, privité & priveté (privacy; a secret, private matter), the construct being privé (from the Late Latin privus (set apart, belonging to oneself)) + -té (from the Middle French -té, from the Old French -té, from the Latin -itātem or -tātem, accusative singular of -tās, ultimately from the primitive Indo-European -tehts; the suffix was used to form nouns, often denoting a quality or a property).  The ultimate source was the Classical Latin privātus (perfect passive participle of prīvō (I bereave, deprive; I free, release).  Privity is a noun; the noun plural is privities.

Between the twelfth & sixteenth centuries a privity was “a divine mystery; something known only to God, or revealed only in the Holy Scriptures and by the late 1200s this meaning had leaked into a general sense of “privacy; secrecy”, used between the fourteenth & seventeenth centuries to refer to “a private matter, a secret”.  The use to describe the genitals (presumably influenced in some way by “private parts” or “the private”) as “the privities” is attested from the late fourteen century and didn’t wholly fade from use until the early nineteenth although use had by then long declined to a northern English, Irish & Scottish regionalism.  The word was used from the 1520s as a technical term in the laws regulating feudal land tenure and other fields of law picked it up in the general sense of “a relationship between parties seen as being a result of their mutual interest or participation in a given transaction”; it was in contract law this would assume it’s important meaning as “privity of contract” (describing the special status of the parties to a contract (as legally defined), something which would for centuries be of critical importance and still in use today.  Less precise was the sixteenth century sense of “the fact of being privy to something; knowledge, compliance” and while there are better ways of saying it, such use is not yet extinct.

Privity of contract, Donoghue v Stevenson and the snail.

The classic case (drummed for almost a century into law students) in the demolition of the sense of the absolute in privity of contract was Donoghue v Stevenson ([1932] A.C. 562, [1932] UKHL 100, 1932 S.C. (H.L.) 31, 1932 S.L.T. 317, [1932] W.N. 139), finally decided before the House of Lords.  It was the case which more than any other established the foundation of the doctrine of product liability, refined the concept of negligence (transforming tort law) and remains a core part of the framework for the principles of “duty of care” which substantially it expanded.

The extraordinary case began with events which transpired in the modest settings of the Wellmeadow Café in Paisle, Scotland, Mrs Donoghue’s friend on 26 August 1928 buying her a ginger-beer, served in a bottle made from a dark, opaque glass.  After she’d consumed about half, the remainder was poured into a tumbler at which point the partially decomposed remains of a snail floated out, inducing an alleged shock and severe gastro-enteritis.  Because Mrs Stevenson was not a party to the contractual purchase of the ginger beer, she was unable to claim through breach of warranty of a contract: she was not party to any contract because, at law, she received the drink as a gift.  Accordingly, she issued proceedings against Stevenson (the manufacturer) and, after some four years in the lower courts, the matter ended up before the House of Lords, then the UK’s highest appellate court.

All were aware it was an important case.  The lower courts, bound by precedent, had been compelled to find the absence of privity of contract doomed the suit but the issue of product liability in the modern era of consumers interacting usually not directly with the producer of goods but their agents or retailers had for some time been discussed as an area of law in which reform was required.  What the Law Lords had to decide was whether the manufacturer owed Mrs Donoghue a duty of care in the absence of contractual relations contrary to established case law.  The important point was not if she was owed compensation for damages suffered but if a cause of action existed.

Previously, as a general principle, manufacturers owed no duty of care to consumers except if (1) the product was inherently dangerous and no warning of this sate was provided and (2) the manufacturer was aware that the product was dangerous because of a defect and this had been concealed from the consumer.  The Lords found for Mrs Donoghue although in a cautious judgement which could be read as offering little scope for others except the specific matter of ginger beer in opaque bottles containing the decomposed remains of a dead snail when sold to a Scottish widow.  However, the mood for reform was in the legal air and the judgment established (1) negligence is distinct and separate in tort, (2) there need not be privity of contract for a duty of care to be established and (3) manufacturers owe a duty to the consumers who they intend to use their products.

In the leading judgment, Lord Atkin (James Richard Atkin, 1867–1944; lord of appeal in ordinary 1928-1944) wrote, inter alia, what was at that time the widest definition of the “neighbour principle”: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply.  You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.  Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”  On this basis, if no other, the Lords held Mrs Donoghue’s action had succeeded and she had a cause of action in law, the culmination of a growing appreciation by the courts that the law needed to evolve to reflect the patterns of modern commerce.  Some years before Donoghue v Stevenson had been decided, another judge had observed “…it would appear to be reasonable and equitable to hold that, in the circumstances and apart altogether from contract, there exists a relationship of duty as between the maker and the consumer…”

Once, if someone bought two bottles of ginger beer and gave one to a friend, were both to be injured by decomposing snails within, only the consumer who handed over the cash could have recovered damages because they alone enjoyed a privity of contract.  Since Donoghue v Stevenson, both can in court seek remedy in tort on the basis of “product liability”, a manufacturer’s duty of care held to extend to all consumers of their products.

Being the common law, what was effectively a new doctrine (and one, as the term “neighbour principle” suggests, rooted in Christian morality) it was also a general principle and thus a foundation on which the building blocks of subsequent judgments would sit; it could not be treated, in the words of Lord Reid (James Scott Cumberland Reid, 1890–1975, lord of appeal in ordinary 1948-1975): “…as if it were a statutory definition. It will require qualification in new circumstances.”  The courts in the years after 1932 had ample opportunity to refine things and this included the development of the modern tests in tort for the “foreseeability of damage” and “proximity” to which was later appended the surprisingly recent “fairness”, something which came to be regarded as within the rubric of public policy, all able to work in conjunction and as one judge noted, the distinctions between them were “…somewhat porous but they are probably none the worse for that.”  From Donoghue v Stevenson has evolved the modern notion of product liability and it would now to many seem strange there was in living memory a time when a manufacturer could escape liability for selling defective goods simply on the basis the injured party wasn’t the purchaser.  One curious quirk of Donoghue v Stevenson remains that the facts were not tested so it will never be known if the most important character in the case (the decomposing snail) ever existed.