Chivalry

Chivalry (pronounced shiv-uhl-ree)

(1) The sum of the ideal qualifications of a knight, including courtesy, generosity, valor, and dexterity in arms; the combination of qualities expected of an ideal knight, especially courage, honour, justice and a readiness to help the weak.

(2) The rules and customs of medieval knighthood; Courtesy, respect and honourable conduct between opponents in wartime (often as a historical re-construction).

(3) The medieval system or institution of knighthood.

(4) Cavalry; horsemen armed for battle (historic use only).

(5) Collectively, knights, gallant warriors or gentlemen, fair ladies and noble chivalry (archaic).

(6) The ethical code(s) of the knight prevalent in Medieval Europe, having such primary virtues as mercy towards the poor and oppressed, humility, honour, sacrifice, fear of God, faithfulness, courage and courtesy to ladies.

(7) Courteous behaviour, especially of men towards women.

(8) In historic English law, a tenure of land granted by virtue of knightly service.

Circa 1300: From the Middle English chivalrie and the eleventh century Old French chevalerie (knighthood, chivalry, nobility, cavalry).  The early form was chevaler (knight) from the Medieval Latin caballarius (horseman), from the Latin caballus (nag, pack-horse).  The Medieval Latin caballaria (knighthood, status or fief of a knight) was the most familiar form by the twelfth century, the term chevaler long in use to describe "a knight or horseman".  The meaning (related to cavalier) "the nobility as one of the estates of the realm", dates from the fourteenth century whereas the more modern use "social and moral code of medieval feudalism" appears to be an eighteenth century historical revival.  Chivalry is a noun and chivalrous is an adjective; the noun plural is chivalries.

The Song of Roland

In Medieval Europe, there never was one universal code of chivalry.  The code was a moral construct which several authorities reduced to writing and, despite this disparate history, the concept was well understood in medieval times.  Although only parts of the codes were concerned with warfare, the texts formed the basis of the early rules of war and from here, can be traced the origins of much international law.  The epic-length poem The Song of Roland (written between 1098-1100) is a recount of the eighth century "Knights of the Dark Ages" and the wars fought by Charlemagne; it's essentially Charlemagne's Code of Chivalry but it is a literary work, a tale of betrayal and a normative text of what ought to be rather than a historical document of chivalrous warfare.  In summary, Charlemagne’s code can be reduced to:

To fear God and maintain His Church
To serve the liege lord in valor and faith
To protect the weak and defenseless
To give succor to widows and orphans
To refrain from the wanton giving of offence
To live by honour and for glory
To despise pecuniary reward
To fight for the welfare of all
To obey those placed in authority
To guard the honour of fellow knights
To eschew unfairness, meanness and deceit
To keep faith
At all times to speak the truth
To persevere to the end in any enterprise begun
To respect the honour of women
Never to refuse a challenge from an equal
Never to turn the back upon a foe

The Duke of Burgundy’s Code

In the fourteenth century, the Duke of Burgundy reduced Charlemagne’s code to a list (printed on pigskin), which knights could carry in their Bibles: Faith, Charity, Justice, Sagacity, Prudence, Temperance, Resolution, Truth, Liberality, Diligence, Hope & Valor.  One can credit the Duke of Burgundy with the invention of the credo card.

The High Court of Chivalry

Lindsay Lohan usurping the escutcheon of the Secret Society of the Les Clefs d’Or (digitally altered image).

In London, in December 1954, the High Court of Chivalry was summoned for the first time in two centuries to hear the case of a city council claiming their coat of arms had been usurped by a private company displaying it on their theatre.  Before substantive matters were introduced, the judge had to rule whether the ancient court still existed and if so, if it was the appropriate body to hear the case.  The judge found the court extant and with valid jurisdiction, his reasons a succinct sketch of the UK’s unwritten constitution in operation and a tale of how law and language interacted over several centuries.  The important principle established was to confirm, even in the modern era, there existed an enforceable law of arms and the law takes as much notice of bad heraldic manners as it does of more violent discourtesies, the judge disapproving of the “prevalent” notion that something cannot be unethical if it’s lawful.  That theme has of late been noted by royal commissioners though perhaps not politicians; in the judgement, the temptation to comment on whether chivalry was dead was resisted.

In Manchester Corporation v Manchester Palace of Varieties Ltd [1955] 1 All ER 387, the Manchester Corporation was successful and the court has not since sat but in 2012,  the council of the Welsh town of Aberystwyth issued a statement that they were prepared to lodge a writ against a Facebook page they alleged was usurping its coat of arms.  Before the council made clear whether they were intending to sue facebook.com or the author(s) of the page, the offending image had been removed.  As one of the findings in 1955 had been the High Court of Chivalry could be abolished only by an act of parliament, because New Labour’s judicial reforms didn’t do this, it appears the court would have to be convened in some form to hear similar matters although it's thought the marvellously flexible British constitution would allow a judge at an appropriate level to declare that their court was "sitting as the Court of Chivalry for the purposes of this case".

Bathtub

Bathtub (pronounced bath-tuhb or bahth-tuhb)

(1) A tub in which to bathe, variations including permanent installations (either built-in fixtures or free-standing units) in a bathroom and (now less commonly in the developed world) portable constructions (historically of metal or timber although for military and outdoor use, foldable bathtubs (of leather or canvas) have a long history).

(2) An automotive style (most common in the 1950s) in which the bodywork resembled an upturned bathtub.

1825–1835: The construct was bath + tub and the previous related word was “wash-tub”, dating from the turn of the seventeenth century.  Bath was from the Middle English bath & baþ, from the Old English bæþ (bath), from the Proto-West Germanic baþ, from the Proto-Germanic baþą (bath), from the primitive Indo-European root bhē- (to warm).  The corresponding inherited verbs were bathe & beath.  The Old English bæð (“an immersing of the body in water, mud, etc” or “a quantity of water etc., for bathing”) was from the Proto-Germanic badan (the source also of the Old Frisian beth, the Old Saxon bath, the Old Norse bað, the Middle Dutch bat and the German Bad), also from the primitive Indo-European root bhē- with the appended –thuz (the Germanic suffix indicating “act, process, condition” (as in “birth”; “death”)). The etymological sense is of heating, not immersing.  Tub was from the late fourteenth century Middle English tubbe & tobbe (open wooden vessel made of staves), from the Middle Dutch & Middle Flemish tubbe or the Middle Low German tubbe & tobbe, of uncertain origin.  Etymologists have concluded there’s no link with the Latin tubus or the English tube but it was related to the Old High German zubar (vessel with two handles, wine vessel) and the German Zuber.  In the seventeenth century tub was slang for “pulpit”, thus since the 1660s a “tub-thumper” was a particularly forceful preacher who literally “thumped his fists on the pulpit” to emphasize some point; the use was later extended beyond the church to politicians and others who spoke in a loud or dramatic way.  The English city in the county of Somerset (in Old English it was Baðun) was so called from its hot springs.  The convention now probably is to refer to any permanently installed unit as a “bath”, a bathtub something portable.  The word can appear both as bath tub and bath-tub.  Bathtub is a noun and bathtubby is an adjective (bathtubesque & bathtubbish (resembling or characteristic of a bathtub) were jocular constructions); the noun plural is bathtubs.

Lindsay Lohan with claw-footed bathtub, music video release of Confessions of a Broken Heart (Daughter to Father) (2005).

A “bathtub cockpit” is a cockpit with recessed seating, so that a pilot or driver is sitting in a bathtub-shaped space.  It was often seen in aircraft but the classic example was that used in the delicate, cigar-shape voiturettes built to contest the Formula One World Championship during the 1.5 litre era (1961-1965).  The bathtub curve is a concept from reliability engineering, describing a particular form of the hazard function taking into account three categories of failure rate.  As a theoretical model it assumes the shape of a bathtub (sectioned in the middle and viewed from the side), the three regions being (1) a decreasing failure rate due to early failures, (2) a constant failure rate due to random failures and (3) an increasing failure rate due to wear-out failures.  The slang term “bathtub gin” is a US prohibition era (1919–1933) term to refer to a gin (or other spirit) of such dubious quality it suggests it may have been distilled by an unskilled amateur in their bathtub.  It’s a similar form to “gutrot”, “moonshine” etc and was applied sometimes to any form of illicit alcohol and not just distilled spirit.  “Bathtub racing” literally describes bathtubs being raced.  One of sports more obscure niches, the variations have included (modified) bathtubs being rowed or sailed on waterways or raced on land (either powered, pushed or run on downhill courses.  In economics, the “bathtub theorem” is the charming illustration of the idea that capital accumulation = production - consumption.  The metaphor is that of the water running from the taps (production) and that exiting from the plughole (consumption).  That seems obvious but where the inflow is too great for the capacity of the plughole, the water in the tub (capital) overflows, flooding the place, an elegant explanation of the effects of over-production which can induce recessions or depressions.

Admiral Sir Reginald Aylmer Ranfurly Plunkett-Ernle-Erle-Drax KCB.

In the intricate hierarchy of the UK’s honours system, The Most Honourable Order of the Bath is an order of chivalry dating from 1725 and the name really is derived from the use of a bathtub, the reference being to the medieval ceremony under which knighthoods were conferred, bathing being a symbol of purification.  More than most British honours, the Order of the Bath has a tangled history, at times limited to the military and with various restrictions on the numbers of members.  One thing which was once constant however was that recipients were entitled to the post-nominal letters “KB” after their name.  This changed in 1815 when the order was re-organized into three classes: Knight Grand Cross (GCB), Knight Commander (KCB) & Companion (CB) and the transition was handled effortlessly by the experts but one thing which these days annoys those who worry about such things (and there are a few) is that inexpert journalists and others not do sometimes attach a KB to a Knight Bachelor.  The Knight Bachelor actually attracts no post-nominal letters; it’s a kind of “entry-level” knighthood and recipients are not inducted as a member of one of the orders of chivalry (although there have been plenty of awards of the latter to those whose lives have been far removed from the chivalrous, not all of them from the colonies or Dominions).  The Order of the Bath also provided one of the amusing anecdotes in the unpromising field of diplomatic protocol.  In 1939, when Admiral Sir Reginald Aylmer Ranfurly Plunkett-Ernle-Erle-Drax KCB (1880-1967) was introduced at a ceremony in Moscow, protocol required his honors be read out in full, the Russian translator rendering his KCB as рыцарь умывальник (rytsar' umyval'nik) (Knight of the Wash Tub).  The Russians honor guard couldn’t help but laugh and fortunately, the admiral shared their amusement.

In December 1917, the US satirist & critic HL Mencken (1880–1956) published a fictitious history of the bathtub.  Intended as an amusing hoax, the story was so convincing that quickly it wildly was promulgated, appearing even in reference works and medical journals.  Around a century later, a similar hoax was perpetrated when a university student edited the electric toaster’s Wikipedia page, claiming it had been invented by a wholly factitious Scottish scientist.  The technique was exactly the same as Mencken’s: use the dry factual approach (ie the classic Wikipedia template) and it remained on-line for some years, presumably because the origin of the toaster is not a matter of great interest or controversy.

1949 Nash Ambassador (left), Evelyn Ay (1933–2008), Miss America 1954, in her “bathtub” Nash Rambler (the official car of the beauty pageant) (centre) and 1957 Nash Ambassador which still showed the legacy of the earlier, more extravagant bathtub styling cues.

The best remembered of the “bathtub” cars were first built in the late 1940s by manufacturers introducing their first genuinely new post-war lines (most of the cars produced in 1945-1946 were slightly updated versions of those which had last been made early in 1942).  Within the industry, engineers first called the motif “envelope styling” but the more evocative (and certainly more accurate because an up-turned bathtub came to mind more than an envelope) “bathtub” quickly became the preferred slang.  Echoes of the lines which became familiar in the next decade can be seen in some of the low-volume and experimental bodies seen in the 1920s & 1930s, many an evolution of the realization the “teardrop” shape was close to aerodynamically optimal (at least on paper, the implications of lift and down-force then not widely understood).  Among the large US manufacturers, Nash and Hudson pursued the bathtub style to its most extreme and persisted the longest.  In the early 1950s, the aerodynamic advantages were apparent and combined with the inherently good weight-distribution afforded by their low-slung “step-down” construction, the Hudson Hornet dominated NASCAR racing between 1951-1954, despite its straight-six engine having both less power and displacement than some of the competition.  Except for the odd quirky niche, the bathtub styling didn’t make it into the 1960s and nor did the Nash & Hudson nameplates, the former in 1954 absorbing the latter to created AMC (American Motor Corporation) and in 1957, both brand-names were retired.

Evolution of the Porsche “bathtub” style 1948-1965, the lines of the original a direct descendant of a pre-war racing car.  1948 Porsche 356-001 (the Gmünd Roadster) (top), 1955 Porsche 356 pre-A 1500 Speedster (centre) and 1965 Porsche 356SC Coupé (bottom).  Although the “bathtub” motif was abandoned with the end of 356 production, the 356’s contribution to the lines of the 911 (introduced in 1964 as the 901) is obvious and in the sixty-odd years since, stylistically, not much has changed.

Usurp

Usurp (pronounced yoo-surp or you-zurp (US))

(1) Forcibly or illegally to seize and hold a throne, an office, institution or position. 

(2) To use without authority or right; wrongfully to employ.

(3) To encroach or infringe upon another’s rights.

(4) To make use of quotations (obsolete except for historic reference).

1275–1325: Middle English, borrowed from the Old French usurper from the Latin ūsūrpāre (to take possession through use), the Latin origin of which is undocumented but thought to be a construct of ūsus (use) + rapere (to seize).  There forms such as nonusurping, unusurped, unusurping, usurpingly and nonusurpingly exist but are so rare as to be practically extinct.  The seemingly strange but inventive strange verb selfusurp (or self-usurp) seems to have picked up the modern meaning that it applies to things happening between one and one’s digital avatar.  Usurp is a verb, usurper & usurpation are nouns, usurpative & usurpatory are adjectives,  usurpatively is an adverb, usurped is a verb and usurping is a noun & verb; the noun plural forms usurpers & usurpations are both in use in historic documents and are sometimes used of those involved in a modern coup d'état.

Manchester Corporation v Manchester Palace of Varieties Ltd [1955] 1 All ER 387

Lindsay Lohan usurping the escutcheon of the Secret Society of the Les Clefs d’Or (digitally altered image).

In London, in December 1954, the High Court of Chivalry was summoned for the first time in two centuries to hear the case of a city council claiming their coat of arms had been usurped by a private company displaying it on their theatre.  Before substantive matters were introduced, the judge had to rule whether the ancient court still existed and if so, if it was the appropriate body to hear the case.  The judge found the court extant and with valid jurisdiction, his reasons a succinct sketch of the UK’s unwritten constitution in operation and a tale of how law and language interacted over several centuries.  The important principle established was to confirm, even in the modern era, there existed an enforceable law of arms and the law takes as much notice of bad heraldic manners as it does of more violent discourtesies, the judge disapproving of the “prevalent” notion that something cannot be unethical if it’s lawful.  That theme has of late been noted by royal commissioners though perhaps not politicians; in the judgement, the temptation to comment on whether chivalry was dead was resisted.

The Manchester Corporation won and the court has not since sat but in 2012,  the council of the Welsh town of Aberystwyth issued a statement that they were prepared to lodge a writ against a Facebook page they alleged was usurping its coat of arms.  Before the council made clear whether they were intending to sue facebook.com or the author(s) of the page, the offending image had been removed.  As one of the findings in 1955 had been the High Court of Chivalry could be abolished only by an act of parliament, because New Labour’s judicial reforms didn’t do this, it appears the court would have to be convened in some form to hear similar matters although it's thought the marvellously flexible British constitution would allow a judge at an appropriate level to declare that their court was "sitting as the Court of Chivalry for the purposes of this case".

Unconscionable

Unconscionable (pronounced un-kno-shon-ible)

(1) Not guided by conscience; unscrupulous.

(2) Not in accordance with what is just or reasonable:

(3) Excessive; extortionate, imprudent or unreasonable

1560s: The construct was un- + conscionable.  The un- prefix was from the Middle English un-, from the Old English un-, from the Proto-West Germanic un-, from the Proto-Germanic un-, from the primitive Indo-European n̥-.  It was cognate with the Scots un- & on-, the North Frisian ün-, the Saterland Frisian uun-, the West Frisian ûn- &  on-, the Dutch on-, the Low German un- & on-, the German un-, the Danish u-, the Swedish o-, the Norwegian u- and the Icelandic ó-.  It was (distantly) related to the Latin in- and the Ancient Greek ἀ- (a-), source of the English a-, the Modern Greek α- (a-) and the Sanskrit अ- (a-).  Conscionable was from the Middle English conscions (the third-person singular simple present indicative form of conscion), an obsolete variant of conscience, +‎ -able.  The suffix -able was from the Middle English -able, from the Old French -able, from the Latin -ābilis (capable or worthy of being acted upon), from the primitive Indo-European i-stem forms -dahli- or -dahlom (instrumental suffix); it was used to create adjectives.  Conscience was from the Middle English conscience, from the Old French conscience, from the Latin conscientia (knowledge within oneself), from consciens, present participle of conscire (to know, to be conscious (of wrong)), the construct being com- (together) + scire (to know).  The suffix -able was from the Middle English -able, from the Old French -able, from the Latin -ābilis (capable or worthy of being acted upon), from the primitive Indo-European i-stem forms -dahli- of -dahlom (instrumental suffix); it was used to create adjectives.  Unconscionable is an adjedtive, unconscionableness is a noun and unconscionably is an adverb; the noun plural is unconscionabilities.

Like disgruntled, unconscionable is one of those strange words in English where the derivation has flourished while the source word is effective extinct.  That said, English is defined and constructed by being used and the word conscionable (in accordance with conscience; defensible; proper) remains good English; it has merely faded from use and is described by some dictionaries as obsolete, archaic or at least, since the eighteenth century, a fossilized form of its surviving negative: unconscionable. Conscionable in the 1540s meant "having a conscience", the meaning expanding by the 1580s to refer to actions "consonant with right or duty" and by the 1640s to persons, "governed by conscience".  The Oxford English Dictionary (OED) notes both conscious & conscioned were probably popular formations from conscion, taken as a singular of conscien-ce by a misapprehension of the "s" sound as a plural inflection. The related form was (and is) conscionably.

Unconscionability in the law

Unconscionability is a legal doctrine (most often applied in contact law) which permits courts to strike-out or write-down clauses or agreements which are unduly harsh or so grossly unfair that that it would offend legal principles for them to be enforced.  When a court uses the word "unconscionable" to describe conduct, it means the conduct does not conform to the dictates of conscience as defined in law; it makes no judgment about whether they are at variance with other ethical constructs (although there will often be overlap).  In addition, when something is judged unconscionable, a court will refuse to allow the perpetrator of the conduct to benefit.  If need be, entire contracts can be set-aside or declared void, even if they are otherwise constructed wholly in conformity with the rules of contract.  A contract therefore can be found to be "legal" yet still be voided because it's held to be unconscionable in the same way a contract (for example an agreement between two parties in which one is paid to murder a third part can be held to be a "legal contract" yet be declared  "void for illegality".

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

Unconscionability is determined by examining the circumstances of the parties when the contract was made; these circumstances may include the bargaining power, age, and mental capacity of the parties and the doctrine is applied only where it would be an affront to the integrity of the judicial system to enforce a contracts.  At law, as in moral theology, the concept of unconscionability is probably absolute; something is either unconscionable or not.  However, cases are considered on their merits and the circumstances in which the unconscionable arose might color the detail of a judge’s verdict.

Portrait of King Charles II in his Garter robes (circa 1667), oil on canvas by Sir Peter Lely (1618-80).

The Most Noble Order of the Garter, an order of chivalry and the senior order of knighthood in the UK’s honors system, was founded by Edward III (1312–1377; King of England 1327-1377).  Appointments are exclusively in the gift of the sovereign and limited to two dozen living members (apart from royal appointees).  The Garter was of great significance to Charles II (1630–1685; King of Scotland 1649-1651, King of Scotland, England and Ireland 1660-1685) as it had been his father, Charles I (1600–1649; King of England, Scotland & Ireland 1625-1649) who awarded it as something symbolic of the binding tie with his favored aristocrats.  For Charles II, as the only dignity he was able to confer upon his adherents while in exile during the interregnum (1649-1660), it was a potent symbol, proof the King still retained the mystique and the power of monarchy.  Charles II suffered a sudden apoplectic fit on the morning of 2 February 1685 and his doctors expected him to have the decency to die within the hour.  Instead he lingered another four days before expiring and just before, he apologised to those around him, his last words being: “You must pardon me, gentlemen, for being a most unconscionable time a-dying.”  In this, as in many other things, he was unlike his father Charles I, who died suddenly, executed by having his head cut off.

Concur

Concur (pronounced kuhn-kur)

(1) To accord in opinion; to agree.

(2) To cooperate; work together; combine; be associated.

(3) To coincide; occur at the same time.

(4) To run or come together; converge (obsolete).

1375–1425: From the late Middle English concur (collide, clash in hostility), from the Latin concurrere (to run together, assemble hurriedly; clash, fight), in transferred use “to happen at the same time", the construct being con (the Latin prefix variation of cum (with; together)) + currere (to run).  The early meaning in English was "collide, clash in hostility," the sense of "to happen at the same time" didn’t emerge until the 1590s; that of "to agree in opinion" a decade earlier.  Ultimate root was the Proto-Italic korzō, derived from the primitive Indo-European ḱers (to run).  Related forms are the adverb concurringly and the adjectives concurring and concurrent.  Despite the rarity, the verbs preconcur, preconcurred & preconcurring, and the adjectives unconcurred & unconcurring are said to exist, at least to the extent no dictionary appears yet to have declared them obsolete or archaic.  The adjective concurrent is noted from the late fourteenth century though concurring is said (surprisingly) not to have been in use until the 1630s.  The first concurring opinion was recorded in 1720.  The sense "to coincide, happen at the same time" is from 1590s; that of "to agree in opinion" dates in English from the 1580s

In praise of the Privy Council

Concurrent is probably the most common adjectival form in general use.  Noted since the late 1300s, in the sense of “acting in conjunction, contributing to the same effect or event", it was from the Old French concurrent or directly from Latin concurrentem (nominative concurrens), present participle of concurrere.  The meaning "combined, joint" is from 1530s and in law, concurrent jurisdiction (that possessed equally by two courts and if exercised by one not usually assumed by the other) is recorded from 1767.

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

Concur is one of many synonyms for “agree” and the one most favoured by judges on appellant courts to indicate they agree with (or at least acquiesce to) a judgment written by another.  That’s good because it means there’s less to have to read.  However, some judges prefer to pen their own judgments, helpful perhaps if they wish to explore some aspect of the case not elsewhere mentioned but otherwise a duplication of effort unless their prose serves to render readable what can be turgid stuff.  Then there are the dissenting judgments, of interest to academic lawyers and historians and sometimes a source of hope to those entertaining thoughts of an appeal.  That notwithstanding, those wishing just to know the state of law with certainty might long for a system in which appellate courts of appeal issued only the majority judgment with the dissenters encouraged to submit essays or letters to the editors of legal journals.

Etching of a sitting of a Judicial Committee of the Privy Council (1846).

That only one judgment was issued was the most appealing procedural aspect of the Privy Council, until 1968 and 1986 respectively, the highest court of appeal for Australian state and Commonwealth jurisdictions.  Properly styled The Judicial Committee of the Privy Council (JCPC), the Privy Council remains the ultimate court of appeal for some British Overseas Territories and Commonwealth countries.  Although the Privy Council’s decisions are mostly not binding on the UK’s domestic courts, the rulings are held to be extremely persuasive as other respected tribunals (US Supreme Court, Supreme Court of Canada et al) are regarded.  One quirk of the Australian Constitution is that, the 1986 Australia Acts notwithstanding, the High Court can issue a certificate referring certain cases to the council but none has been granted for a century and the court has long made clear there’ll be no more.  As a bit of a relic of English constitutional history and the established church, in the United Kingdom, the Privy Council retains appellant jurisdiction some domestic matters:

(1) Appeals from the Arches Court of Canterbury and the Chancery Court of York in non-doctrinal faculty causes.

(2) Appeals from the High Court of Chivalry.

(3) Appeals from the Court of Admiralty of the Cinque Ports and Admiralty prize courts.

(4) Appeals from the Disciplinary Committee of the Royal College of Veterinary Surgeons.

(5) Disputes under the House of Commons Disqualification Act, a role essentially similar to that the High Court of Australia (HCA) discharges as the Commonwealth’s Court of Disputed Returns.

Historically, the Privy Council dealt with cases thus referred without any known demand for multiple judgments or dissenting opinions; a fine example of judicial clarity and efficiency and one which judges in other courts never to admire, much less emulate.  Despite its exalted place in the legal hierarchy, the council has been a surprisingly flexible and informal court.  In 1949, it found, on technical grounds, the Commonwealth of Australia’s appeal in the bank nationalization case (Commonwealth of Australia v Bank of NSW [1949] UKPC 37, [1950] AC 235; [1949] UKPCHCA 1, (1949) 79 CLR 497 (26 October 1949)) couldn’t proceed but, because so many people had travelled over ten-thousand miles (17,000 km) to London (no small thing in 1949), it anyway heard the case and issued what would have been the substantive judgment.  If ever it’d been prepared to set the example of providing advisory opinions, the Privy Council would have been the best appellant court ever.  Unfortunately, In recent years, dissenting opinions have started to be issued.

Sitting of the Judicial Committee of the Privy Council, 18 June 1946.

M.R Jayaker, Lord Du Parcq, Lord Goddard (Lord Chief Justice), Lord Simonds, Lord Macmillan, Lord Simon, The Lord Chancellor (Lord Jowitt), Lord Thankerton, Lord Porter, Lord Uthwatt, Sir Madhavan Nair, and Sir John Beaumont.

Thistle

Thistle (pronounced this-uhl)

(1) Any of numerous perennial composite plants of the genera Cirsium, Cynara, Carduus, Onopordum and related genera, having prickly-edged leaves, pink, purple, yellow, or white dense flower heads, and feathery hairs on the seeds: family Asteraceae (composites).

(2) A common term for many other prickly plants.

(3) The national emblem of Scotland since the fifteenth century.

(4) As the Most Ancient and Most Noble Order of the Thistle (1687), a United Kingdom order of chivalry associated with Scotland; the word denoting membership of this order.

Pre 900: From the Middle English thistel, from the Old English thīstel (the earlier form was þistel).  The origin was probably the Proto-Germanic þistilaz & thistilaz, the source also of the Old Saxon thistil, the Old High German distil & thīstil, the German Distel, the Old Norse þistell & thīstill, the Scots thrissel, the Danish tidsel, the Dutch distel and the Icelandic þistill.  The root is uncertain origin but may have been an extended form of the primitive Indo-European (s)teyg & steig- (to prick, stick, pierce).  The adjective is thistly and the noun plural thistles.

Insignia of The Most Ancient and Most Noble Order of the Thistle.

The Most Ancient and Most Noble Order of the Thistle is an order of chivalry of the United Kingdom which, unusually, is one of a small class in the personal gift of the sovereign whereas most are conferred on the basis of a recommendation from the various governments where the British monarch remains head of state.  The order was founded in 1687 by King James VII of Scotland (1633-1701; James II of England and Ireland) who at the time asserted it was a revival of an earlier order but historians doubt the claim, the royal warrant of 1687 containing some dubious history and most doubtful chronology.  Nor is there any documentary evidence to support the idea an award in some way linked to the thistle was instituted after the Scottish victory at the Battle of Bannockburn in 1314, the earliest vaguely plausible claim dating from the fifteenth century when James III (1451-1488) adopted the thistle as the royal insignia and minted coins depicting thistles.  There’s nothing however to support any link with knighthoods or other orders of chivalry and all that is certain is that the thistle became established as an emblem of Scotland, attached firstly to the royal court and later to the national identity.

The troublesome Bull Thistle.

Not discouraged by tiresome, inconvenient history, in 1687 James VII issued letters patent for an order of knighthood "reviving and restoring the Order of the Thistle to its full glory, lustre and magnificency".  Intended to be exclusive, membership was limited to twelve but James was deposed in the Glorious Revolution (1688) and no appointments to the order were made beyond the original eight although the exiled House of Stuart continued to issue what came to be referred to as “the Jacobite Thistle”, these not acknowledged by the British Crown.  The award of the Thistle resumed in 1704, before even the 1707 Acts of Union under which the kingdoms of England and Scotland united as a single sovereign state known as Great Britain.  The motto of the order is Nemo me impune lacessit (No one provokes me with impunity), an adoption of that which had been used by the Royal Stuart dynasty of Scotland since at least the 1570s.  It's used also by three of the British Army's Scottish regiments and appears on both the royal coat of arms of the Kingdom of Scotland and the version of the royal coat of arms of the United Kingdom used in Scotland.

In the UK’s order of precedence, Knights and Ladies of the Thistle rank second only to the Order of the Garter and the wives, sons, daughters and daughters-in-law of Knights of the Thistle also can rise a few notches on the order of precedence, a courtesy not extended to any relative of a Lady of the Thistle, something which must be seen as an anomaly in the early twenty-first century but which probably cannot easily be reformed in isolation, any alteration in these things likely to trigger a chain-reaction of events in a system designed to resist change.  The television show Yes Minister did offer an alternative explanation for the mechanism for awarding the Thistle, suggesting “…a committee sits on it”.

Sir Robert Menzies (1894–1978; prime minister of Australia 1939-1941 & 1949-1966) in his Knight of the Thistle robes.

Like the Most Noble Order of the Garter (1348) and the Royal Victorian Order (1896), the Thistle lies in the personal gift of the sovereign rather than being an award made by governments as is the case with most honors.  Unusually too, the Thistle is geographically specific, awarded only to those with some connection to Scotland, although, they need not be actually Scottish.  The equivalent Irish Order, the Most Illustrious Order of St Patrick (1783) was for those with an association with Ireland handled in a similar manner to the Thistle but awards were restricted after independence was granted to Eire (southern Ireland) in 1922 and the order has been dormant (though not abolished) since 1936.  This follows the practice applied to imperial honors tied to particular colonies of the Raj and the old British Empire, the Indian (the Most Exalted Order of the Star of India (1861) & the Most Eminent Order of the Indian Empire (1878)) and Burmese (the Order of Burma (1940)) orders dormant since the respective grants of independence in 1947 & 1948.  Presumably, were Scotland to become an independent state, the Thistle too would lapse into a similar state of abeyance.

Clan Lindsay car seat covers.

Clan Lindsay is a Scottish clan of the Scottish Lowlands although the origins of the Lindsay name lie in England, south of the border.  Lindsay is a toponym (a word derived from the name of a locality), itself drawn from the Old English toponym Lindesege (Island of Lind), a reference to the city of Lincoln, in which Lind is the original Brittonic form of the name, the “island” referring to Lincoln being an island in the surrounding fenland.  Under Roman occupation, the area in Lincolnshire now occupied by the city of Lincoln was known as Lindum Colonia, shortened in the Old English to Lindocolina and later to Lincylene, Lindum a Latinized form of a native Brittonic name which had been reconstructed as Lindon (pool or lake).  In the late nineteenth century, as the modern convention in the Western World (Christian name + Surname) became (more or less) standardized, like many others, surnames Lindsay and Lindsey began to be used as given names although it wasn’t until the mid-1960s that it became common in the Commonwealth to use them for girls, a trend which spread quickly to the US and by late in the century, the use for boys rapidly declined, the two trends presumably not unrelated.

Lindsay Lohan in tartan for Freaky Friday (2003) costume test photos (left), the Clan Lindsay tartan garden flag with swan crest, augmented by the thistle (national flower of Scotland) emblems (centre) and Clan Lindsay T-Shirt with stylized thistle (right).  The Clan Lindsay motto is Endure Fort (Endure Bravely).

Privy

Privy (pronounced priv-ee)

(1) Participating in the knowledge of something private or secret (usually as the phrase “privy to”).

(2) Private; assigned to private uses; exclusive; not public; one's own.

(3) Belonging or pertaining to some particular person (in or with reference to constitutional law, especially as applied to a sovereign).

(4) Secret, concealed, hidden, or secluded; acting or done in secret (archaic).

(5) In law (usually of contractual matters, a person participating directly in or having a derivative interest in a legal transaction.

(6) A toilet, lavatory, loo (mostly obsolete and tended to be applied to outside structures (also as outhouse)).

(7) Of or relating to one person only (archaic).

1175–1225: From the Middle English pryvy & prive (secret, concealed, not made known in public), from the Old French privé (close friend (adjective) & private place (noun), from the Latin prīvātus (private; deprived), the perfect passive participle of prīvō (I bereave, deprive; I free, release).  The adjectival form came first in the sense of something "secret, concealed, not made known in public", the noun forming later to describe places secluded or deliberately hidden" a direct use of the Old French privé (friendly, intimate; a private place) from the Latin prīvātus.  The now familiar phrase “privy to” (participating something a secret to most others) is from the late fourteenth century.  The phrase Privy member (organ of sex; the genitals) was from the late thirteenth century.

A privy.

The sense of the noun privy meaning "latrine, outdoor toilet in a small shed (outhouse) dates from circa 1200, from Old French privé & privee used in the same sense, the meaning in French literally "private place, the noun derived from the adjective.  Historically, the outdoor facilities for urination and defecation were differentiated by being either open (latrine) or enclosed (privy).  Privy (the spelling privie is obsolete) is a noun & adjective, privier & priviest are adjectives, privily (the spellings prively, priuely, pryvely & pryuely long obsolete) is an adverb and priviness is a verb; the noun plural is privies.  A privy chamber was the private apartment of a royal residence in England, analogous with places like the pope's apartment in the Vatican, the flat in 10 Downing Street or the residence in the White House.  In the English (and later the UK's) monarchy, the term privy chamber referred nominally to the place but more broadly to the sovereign’s private office and staff.  In an age when the authority of kings and queens was greater than now, the privy chamber was the most influential department in the royal household and thereby the system of government.  In the sixteenth century, as the role and extent of government expanded, the Privy Chamber came to be understood as a political institution, something distinct from the king's apartment (loosely referred to as the bedchamber).  In that way, the privy chamber became the outer chamber (often styled as the "presence chamber" or "chamber of the presence) although historians have noted that the key to influence lay in access to the bedchamber.  The privy purse was literally a ceremonial bag carried at ceremonies by the keeper of the privy purse (it’s not clear of ever it was used to carry cash or indeed anything) and the phrase is still use to refer to (1) the British monarch's private income from various sources, (2) the net total of the monies available to the monarch for private or personal expenses (as distinct from what's incurred in the discharge of official duty as head of state et al) and (3) the official and the office which acts as comptroller of the monarch's finances.

In England, the term Privy Council emerged circa 1300 in a general sense and the familiar use to describe the organ of government dates from the late fourteenth century although, reflecting the court practice of the age, it was originally styled (using the French word order) as consaile priue and existed as a group of advisors to the monarch who were summoned or not at his pleasure.  That evolved to a system in which those summoned were those supporting the government of the day and that is essentially the present form although those no longer in favor don’t cease to be privy councilors; they are just not summonsed.  In practice, the advisory body is now the cabinet (all of whom will be privy councilors) although larger assemblies of the Privy Council are sometimes convened for constitution or ceremonial occasions such as the recent proclamation of King Charles III as monarch.

The Judicial Committee of the Privy Council (JCPC) in session.

The historic judicial functions of the King-in-Council are now performed by Judicial Committee of the Privy Council (JCPC). The JCPC consists of senior judges appointed as Privy Councillors: predominantly Justices of the Supreme Court of the United Kingdom although senior judges from the Commonwealth can still be appointed. The Privy Council formerly acted as the High Court of Appeal for the entire British Empire (other than for the United Kingdom itself) and continues to hear judicial appeals from some other independent Commonwealth countries, as well as Crown Dependencies and British Overseas Territories.  Although the Privy Council’s decisions are mostly not binding on the UK’s domestic courts, the rulings are held to be extremely persuasive as other respected tribunals (US Supreme Court, Supreme Court of Canada et al) are regarded.  One quirk of the Australian Constitution is that, the 1986 Australia Acts notwithstanding, the High Court can issue a certificate referring certain cases to the council but none has been granted for a century and the court has long made clear there’ll be no more.  As a bit of a relic of English constitutional history and the established church, in the United Kingdom, the Privy Council retains appellant jurisdiction some domestic matters:

(1) Appeals from the Arches Court of Canterbury and the Chancery Court of York in non-doctrinal faculty causes

(2) Appeals from the High Court of Chivalry.

(3) Appeals from the Court of Admiralty of the Cinque Ports and Admiralty prize courts.

(4) Appeals from the Disciplinary Committee of the Royal College of Veterinary Surgeons.

(5) Disputes under the House of Commons Disqualification Act, essentially a role similar to that the High Court of Australia discharges as the Commonwealth’s Court of Disputed Returns.

The JCPC (always referred to as “the Board”) was long noted (and much admired) for handing down single judgments without dissenting opinions; a fine example of judicial clarity and efficiency that other courts showed no inclination to follow.  Unfortunately, in recent decades, multiple opinions have been allowed.

Looking the other way while the Supreme Leader is engaged.

The Supreme Leader, mid-engagement.

The statesman who has done most to advance privy design is Kin Jong-un (Kim III, b 1983; Supreme Leader of the DPRK (North Korea) since 2011).  On the rare occasions the Supreme Leader leaves the DPRK (traveling usually by train), included in his inventory is a customized state limousine (either a Mercedes Maybach S62 or a Mercedes Maybach S600 Pullman) with a built-in toilet.  No photographic evidence of the convenient installation seems to have appeared but the "information" has appeared on the internet so users can vest it with whatever veracity they think appropriate.  Apparently, it's easy to tell when the Great Leader is relieving himself inside his mobile privy because the security detail always discreetly looks away from the car.  Other than the privy plumbing, the cars are distinguished from the standard models by a longer wheelbase, an armored floor and laminated windows, all features designed to withstand attacks by firearms or explosives and bullets.  Diplomatic sources confirm the Supreme Leader had the vehicles commissioned to prevent foreign spies from taking stool or urine samples which could be analyzed to allow his state of his health to be determined.  The Supreme Leader is probably right to take precautions because several sources have reported the US Central Intelligence Agency (CIA) has made more than one attempt to collect his fecal samples.

Within the borders of the DPRK, the logistics are simpler, the Supreme Leader always provided with a portable privy for his exclusive use, at all times under military guard to ensure no others intrude.  It's believed that whenever he leaves the privy, recalling an old DPRK adversary, he utters the words "I shall return".