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  Privy (the spelling privie is obsolete) is a noun & adjective, privier & priviest are adjectives, privily (the spellings prively, priuely, pryvely & pryuely long obsolete) is an adverb and priviness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.  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 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".

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.

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.

Chamber

Chamber (pronounced cheym-ber)

(1) A room, usually private, in a house or apartment, especially a bedroom (now archaic or poetic).

(2) A reception room or audience room in an official residence, palace, etc.

(3) The meeting hall of a legislative or other assembly.

(4) In law, a place where a judge hears matters not requiring action in open court.

(5) In England, the quarters or rooms that lawyers use to consult with their clients, especially in the Inns of Court.

(6) A legislative, judicial, or other like body.

(7) An organization of individuals or companies for a specified purpose.

(8) The place where the moneys due a government are received and kept; a treasury or chamberlain's office (obsolete).

(9) Of or relating to, or performing chamber music.

(10) To put or enclose in, or as in, a chamber.

(11) To provide with a chamber.

(12) The space between two gates of the locks of a canal, dry dock, etc

(13) An enclosure for a cartridge in the cylinder of a revolver or for a shell in the breech of a cannon

(14) An enclosed space, compartment or cavity; the smallest chamber in a cave.

1175-1225: From the Middle English chamber (a room in a (usually private) house) from the eleventh century Old French chambre (room, chamber, apartment), derived from the Late Latin camera (a chamber, room), variant of camara (vaulted room) from the Ancient Greek kamára.  In an interesting linguistic twist, the Old French and Middle English words were also used alone and in combinations to form words for "latrine, privy" from the idea of the "bedroom utensil for containing urine".  The word in the fourteenth century was adopted for use in to anatomy in the sense of "an enclosed space in a body" and this was extended to machinery after 1769, the use in gunnery or ballistics meaning  "part of the bore in which the charge is placed" dating from the 1620s.  The familiar use to refer to the rooms where legislative bodies assemble (ie upper & lower chambers) has been in use since circa 1400.  Chamber music dates from 1789; the distinction being it described a type of music meant to be performed in private rooms instead of public halls.  Chamber-lye, disturbingly to modern ears, meant "urine used as a detergent" and dates from the 1570s and the obviously related chamber-pot (also chamberpot) (vessel for urine used in bedrooms) came into use a decade earlier.  A chambermaid was (1) a female servant who dresses a lady and waits on her in her bedchamber and (2) a woman who makes beds and cleans rooms in a private house, palace or inn, a form which emerged in the 1580s and obviously derived from bedchamber (also bed-chamber) (a room for sleep or repose) which had been in use since the mid-fourteenth century.  Bedchamber is now archaic and used only in relation to royalty (an then mostly in historic reference), expensive hotels and hopeful real-estate salespeople.  The verb chamber was in the late fourteenth century derived from the noun and was used in the sense of (1) to restrain, shut up as in a chamber and (2) to furnish with a chamber" (implied in chambered); the related form was chambering.  The adjective chambered (divided into chambers) was from the same era and was the past-participle adjective the verb.  The famous reference to nautilus shells dates from 1819.

The Court of Star Chamber

Named for the star pattern on the ceiling of the room in Westminster Palace where sittings were convened, the Court of Star Chamber (known almost always as the Star Chamber), was an English law court which operated in parallel with the common-law courts.  The Star Chamber drew its authority from the king's sovereign power and privileges and was not bound by the common law.

The former Court of Star Chamber (1836), drawing by unknown artist.

The Court of Star Chamber was created originally to ensure the enforcement of laws against the socially and politically well-connected, those whom ordinary courts may hesitate to convict and technically, it evolved from the medieval King's Council.  There had been a tradition of the king presiding over a court composed of his Privy Counsellors and in 1487, under the supervision of Henry VII (1457–1509; King of England 1485-1509 and the first Tudor king), the Court of Star Chamber was established as a judicial body separate from the King's Council.  The original rationale was for the Star Chamber to (1) oversee the lower courts, (2) to act as a court of appeal and (3) to hear petitions addressed to the king seeking redress.  Initially the court heard cases only on appeal, but Henry VIII's (1491–1547; King of England 1509-1547) chancellor, Cardinal Thomas Wolsey (1473–1530; Lord High Chancellor of England 1515-1529) encouraged suitors directly to lodge writs of appeal and not await verdicts from the common-law courts.  Although most of the cases heard involved property rights, trade, government administration and public corruption, the Tudors especially were concerned with public disorder and Cardinal Wolsey referred matters involving forgery, fraud, perjury, riot, slander, and anything else he considered a breach of the peace. Following the Reformation, the Star Chamber was used (and much misused) to punish religious dissenters.

Procedurally the Star Chamber would begin a case with a petition or with information brought to the attention of the judges and depositions would be taken to discover the facts.  Accused parties could be put on oath to respond to the charges and answer detailed questions. No juries were used; members of the court decided whether to hear cases, passed verdicts and assigned punishments.  Structurally, court was thus a hybrid with influences from the common law, Roman civil law, developments in Chancery (equity) law and even the later Court of Exchequer.  Interestingly, the court did not have capital jurisdiction so instead declared its choice of punishment was wholly arbitrary and not at all governed by precedent, guidelines or laws. Judges could choose (indeed even invent) the punishment they felt was most appropriate to the crime or criminal. The punishments included fines, time in the pillory (or stocks), whipping, branding, mutilation or imprisonment for any length of time.  There are critics of the NSW ICAC who compare its operations with the Star Chamber; in this they’re only partially correct and certainly not in relation to punishments. 

Tucked up: Lindsay Lohan in her bedchamber.

The Star Chamber offered an expeditious resolution to legal conflicts. It was popular with the Tudors because it could quickly enforce the law when other courts were slow or tainted by corruption and because it could offer satisfactory remedies when the common law restricted punishment or failed to address specific infractions. Under the Tudors, Star Chamber hearings were held in public, so proceedings and verdicts were subject to inspection which led most judges to act with reason and try to deliver fair justice.  In the seventeenth century, the court evolved into something secretive and corrupt. The Stuarts used the court to enforce their royal proclamations, holding sessions in secret and allowing no appeal.  Charles I (1600–1649; King of England, Scotland, and Ireland 1625-1649) saw the court as a substitute for Parliament when he tried to govern without calling the legislature into session and resentment grew as the Stuarts used the court to prosecute members of the nobility who would otherwise not be subject to prosecution in common-law courts.  The Long Parliament abolished the Star Chamber in 1641.   

Except for historic reference, the term "star chamber" is now almost always pejorative and used to describe social and political oppression through the arbitrary use and abuse of the powers wielded.  In political science, the doctrine of separation of powers is held to be the most effective means to prevent abuse of power by the state.  At its most simple, it means politicians can no longer in individual cases impose the sanctions of criminal law, a function which belongs exclusively to the courts.

Cesspool & Cesspit

Cesspool (pronounced ses-pool)

(1) A cistern, or sump for the temporary retention of the sediment of a drain or for receiving the sewage or waste-water from a house or other building; also called a sink.

(2) As a casual description, any filthy receptacle or place.

(3) By extension, any place of corruption, iniquity, moral filth, depravity or immorality:

1670s: From the early Modern English cess-pool & sesspool (cistern or well to receive sediment or filth).  The origin is (perhaps expectedly) murky.  It may be from the Italian cesso (privy) from the Latin secessus & rēcessusrecess (“place of retirement” and, in Late Latin "privy or drain") documented in English since the 1580s.  It seems convincing because the dialectal form was suspool, from suss & soss (puddle; mire) or cess (a bog on the banks of a tidal river).  Another theory of the seventeenth century shift involves the influence of the French cesperalle, an alteration of the Middle English suspiral, from the Old & Middle French souspirail (air hole; a vent for air) from soupirer & souspirer (to sigh, breathe), from the Latin suspirare.  Other speculation is it may have been either an alteration of cistern or a shortened form of recess or the whole may be an alteration of the (circa 1400) suspiral (drainpipe), from the Old French sospiral (a vent, air hole) from sospirer (breathe) from the Latin suspirare (breathe deep).  The fact the meaning extended to "tank at the end of the pipe," does make plausible a possible folk-etymology change in final syllable.  Gongpit was the most attractive of the nicknames, most of the others predictably more overtly scatological.

Pool is from the Middle English pool, pole & pol, from the Old English pōl (pool), from the Proto-Germanic pōlaz (pool, pond), from the primitive Indo-European bōlos (bog, marsh).  It was cognate with the Scots puil (pool), the Saterland Frisian Pol (pool), the West Frisian poel (pool), the Dutch poel (pool), the Low German Pohl & Pul (pool), the German Pfuhl (quagmire, mudhole), the Danish pøl (puddle), the Swedish pöl (puddle, pool), the Icelandic pollur (puddle), the Lithuanian bala (bog, marsh, swamp, pool), the Latvian bala (a muddy, treeless depression), the Russian боло́то (bolóto) (swamp, bog, marsh).

Cesspit (pronounced ses-pit)

(1) A pit for the temporary retention of the sediment of a drain or for receiving the sewage or waste-water from a house or other building; also called a sink.

(2) As a casual description, any filthy receptacle or place.

(3) By extension, any place of corruption, iniquity, moral filth, depravity or immorality:

1860–1865, the construct being cess + pit.  Pit is pre-900, from the Middle English pit, pet & püt, from the Old English pytt, from Proto-West Germanic puti, from the Latin puteus (trench, shaft, pit, well), the verb derivative of the noun; that seems the consensus although many etymologists note the some phonetic inconsistencies.  The unrelated use as a verb, as pit, pitted, pitting in the sense of removing the pit from a fruit or fruits is an Americanism from 1835-1845, influenced both by pith and the Dutch kernel.

Cesspits, cesspools, and the swamp

A cesspit.

In modern plumbing, cesspits, cesspools and septic tanks are alike in construction, none being connected to a main sewer system, the difference being cesspools and cesspits do not include a treatment system.  Pre-war English legislation best illustrates the difference between cesspits and cesspools which, prior to the Public Health Act (1936), were different things.  Cesspits resembled wells, circular brick chambers built about 6 feet (1.8m) deep in the ground, acting like a soakaway.  The design was flawed because the drains would eventually back up so the Public Health Act prohibited the use of cesspits, requiring other drainage methods to be used so after 1936, only cesspools and septic tanks were installed but, other than professional plumbers or public health specialists, few noticed or cared much to explore the difference so, among the public, cesspit and cesspool came to be used interchangeably and thought to mean much the same thing.

A cesspool.

A modern cesspool is a watertight, fibreglass storage tank which holds sewage and is stored underground in a pit. It does not have an outlet or any apparatus to carry out any treatment process, the only piping being that connect to a relief valve which prevents any build-up of hazardous gasses.  Cesspools thus demand regular emptying by a licensed waste disposal company, which is why they’re now usually only a temporary solution.  The frequency with which they must be emptied differs and is predictably dictated by the variables: the size of the tank, and the volume of material it receives, calculations based usually on the number of people serviced by the unit.  Cesspools are normally used in locations which don’t have access to mains drainage, holiday homes, camp sites and places where the discharge of effluent into the ground is not possible because of unsuitable soil.  Although not always required by local ordinances, cesspits should be fitted with an alarm that notifies when the tank is approaching capacity, manufacturers caution it’s not advised to open the lid to check the level because noxious gasses will be emitted, unpleasant at least and potentially hazardous if inhaled.

A septic tank.

A septic tank is similar to a cesspit, the tank construction almost identical and also installed underground and not connected to a main sewer system.  Where a septic tank differs is in being a component of a sewage treatment system where the wastewater, or effluent, drains into a soakaway after treatment.  The tank has two or three chambers which separate waste into liquids and solids, and then the liquids (effluent) move through an outlet into a soakaway chamber or drainage system.  A soakaway, known also as a drainage field, is a system of piping which is designed to spread liquids evenly into the surrounding soil.  To avoid blockages, septic tanks need annually to be emptied of the residual solid waste, again a task which should be undertaken only by a professional.  In the modern, urban environment, cesspools should really be regarded a temporary device because they’re not only expensive to maintain bur are a potential contaminant as untreated effluent can overflow into the surrounding environment. Septic tanks have a treatment system and are thus safer but are still a compromise and the most economic and convenient option is, wherever possible, connect to a mains system.

Washington Post, 13 December 2016.

Because of the stench and squalor summoned by the imagination whenever the words cesspit and cesspool are mentioned, they’ve long been a favorite piece of imagery when speaking of corrupt or morally bankrupt assemblies of politicians or other self-interested souls.  Despite the technical differences in the plumbing arrangements, when used figuratively, cesspool and cesspit are interchangeable, the choice depending only on which best suits the rhythm of the sentence in which it appears.  Both describe a place hidden from view where sewage gathers, a pool full of nastiness, a place swimming with grubs and corruption.  The attraction of using it when speaking of politics is obvious but Donald Trump (b 1946; US president 2017-2021), in the 2016 presidential campaign instead choose the catchy phrase “drain the swamp” to express much the same idea.  When in office, there was scant evidence of any drainage although he certainly took the opportunity to toss into the swamp a few creatures of his choice.  He did at least mention the problem, something which few professional politicians have ever been interested in doing but the swamp-like nature of electoral politics is a product of incumbency and the more prolonged the longevity, the greater the opportunity further to rig the system to gain even more time in the swamp while gorging at the trough (an unfortunate mix of metaphors but a vivid image).  The core value of democracy is the election but perhaps its most corrupting aspect is the re-election.  Were term limits introduced, preferably as single terms of a reasonable length, perhaps four years, one of the great drivers of political corruption would be removed.  It should be assumed this will never be done.

The notion of Donald Trump cleaning up the cesspool of corruption in politics was one idea.  There have been other suggestions. 

Constitution

Constitution (pronounced kon-sti-too-shun)

(1) The formal or informal system of primary principles and rules regulating a government or other institution.

(2) In law, a legal document describing such a formal system.

(3) In Roman Catholicism, a document issued by a religious authority serving to promulgate some particular church laws or doctrines.

(4) A person's physical makeup or temperament, especially in respect of robustness; the general health of a person (now less common except in technical use).

1350-1400: From the Middle English constitucioun & constitucion (edict, law, ordinance, regulation, rule, statute; body of laws or rules, or customs; body of fundamental principles; principle or rule (of science); creation), from the twelfth century Old French constitucion (constitution, establishment) (which persists the in modern French constitution), a learned borrowing from the Latin cōnstitūtiō & cōnstitūtiōnem (character, constitution, disposition, nature; definition; point in dispute; order, regulation; arrangement, system), from cōnstituō (to establish, set up; to confirm; to decide, resolve).  A common use of cōnstitūtiōnem was as a noun of state from past-participle stem of constituere (to cause to stand, set up, fix, place, establish, set in order; form something new; resolve),  The construct was constitute +‎ -ion.  Constitute was from the Middle English constituten, from the Latin cōnstitūtum (neuter of cōnstitūtus, past participle of cōnstituō (to put in place, set up, establish).  The –ion suffix was from the Middle English -ioun, from the Old French -ion, from the Latin -iō (genitive -iōnis).  It was appended to a perfect passive participle to form a noun of action or process, or the result of an action or process.  Constitution & constitutionality are nouns, constitutionally is an adverb, constitutional is an adjective; the noun plural is constitutions.

The meaning “action of establishing; creating" dates from circa 1400 while that of "way in which a thing is constituted" was from circa 1600.  The once common sense of "physical health, strength and vigor of the body" was from the 1550s, extended some thirty year later to "temperament & character", both now rare though not yet archaic.  The sense of "mode of organization of a state" emerged around the turn of the seventeenth century, evolving gradually to by the 1730s conveying the idea of a "system of principles by which a community is governed", finally by the late eighteenth century being understood as “document of basic or foundational laws”, something which reflected the influence of the US and French constitutions.  Although rare, constitutions of nations can be described as “unwritten” which is a little misleading because probably every aspect of an “unwritten” constitution in a modern state does exist somewhere in writing (statute, legal judgments etc) so a better expression is probably “un-codified”.  The best known example of the “unwritten constitution” is that of England where it’s understood as the collective name for the fundamental principles established by the political development of the English people embodied variously in common law, statute and in long-accepted precedents.  Liking the flexibility afforded, no British government has ever seriously contemplated a written constitution.

The adjective constitutional dates from the 1680s in the sense of "pertaining to a person's (physical or mental) constitution" and came to be used to mean "beneficial to bodily constitution" in the mid-eighteenth century and came later to be applied adjectivally to heath remedies as varied as morning walks and the odd medicinal brandy.  The meaning in legal judgements "authorized or allowed by the political constitution" was first used in 1765 while the “constitutional monarchy” (a monarchy constrained by law and democratic institutions) was first described (in France and apparently without irony) in 1801.  From constitutional as a legal concept came the inevitable adverb constitutionally, recorded first in 1767 although the noun constitutionality (quality of being in accord with a constitution) seems not to have left the judicial pen until 1787.

The substantive moments in Australian constitutional development

1770: Captain James Cook, on a voyage under the auspices of the Admiralty, claims eastern coastline of Australian continent for the British Crown.

1788: Government of the UK conducts successful invasion on 26 February.  Colony of NSW established and occupation of the continent begins as a colonial project, initial as a penal settlement.

1825: Limited self-government granted by the Colonial Office which (with variations in detail) is between 1825-1890 introduced for the colonies of NSW, Tasmania, New Zealand, Victoria, South Australia, Queensland and Western Australia.

1901: The six Australian colonies federate as the Commonwealth of Australia.  The Australian Constitution, an act of the Imperial Parliament, becomes basic law on 1 January 1901 creating the Parliament of Australia which subsequently also passes the act of constitution, thus creating the nation state in its original form.

1903: High Court of Australia constituted.

1927: Division of the Imperial Crown which, in effect, creates the Kingdom of Australia although this will not be formalised until 1973.  This was the mechanism which began the process of the relationship with the monarch being one increasingly disconnected from the UK government.

1931: Statute of Westminster granted (almost complete) legislative independence to the Dominions (including Australia) although it would be some time before the Australian government sought to formalize the implications of this.

1949: Australian citizenship created.

1969: The removal of rights of appeal from federal courts to the Judicial Appeal Committee (the board) of the Privy Council.  This had the effect of making rulings of the High Court final in all matters of Commonwealth law while appeals to London from state and territory courts remained possible.

1986: The Australia Acts (simultaneous acts of the UK and Australian parliaments) sunder last remaining legal connections between the two parliaments and legal systems (section 74 of the constitution notwithstanding).

The passage of the Australia Acts meant Australia retained two remote constitutional connections of which, strictly speaking, only one was with the United Kingdom.  The first is through the monarch, not as the King of England but of Australia and of each of the states and the relationship between the monarch (as head of state) and the Commonwealth is purely personal and wholly unconnected with the UK.  Were the UK to become a republic this would have no constitutional effect in Australia and the head of state would remain whomever is the relevant living successor in the line of succession from Queen Victoria (1819-1901; Queen 1837-1901).  The argument that more correctly the line of succession should begin from a later monarch because of the change in constitutional relationship is an interesting one for legal theorists but because of the biological continuity, there’s no difference in consequence.

King William IV sits before a pie containing two dozen blackbirds, served to him by Lord Melbourne (1836), colored lithograph by HB (John Doyle (1797-1836).  Lord Melbourne (1779–1848; UK prime-minister 1834 & 1835–1841) was the last prime minister dismissed by the monarch, William IV (1765–1837; King of the United Kingdom & King of Hanover 1830-1837) determining his commission in 1834.

The relationship is of interest because in legal theory, everything done by the governments (state and federal) is lawful because of powers which can be traced back to those of the monarch.  These powers are a construct of conventions, codified law, legal fictions and precedent and can be understood when deconstructed rather than observed in operation.  For example, the King, being the Lord Paramount in Australia technically owns all the land and other traditional forms of ownership (leasehold & freehold) are actually grants from the crown which may be revoked.  This is of course best thought of as a legal fiction and more of a trustee relationship but does illustrate the way that all power exercised by governments is ultimately derived from those held by the monarch.

A saltwater crocodile.

The powers of the monarch of course exist but can’t in most cases be exercised by the monarch.  Of great interest to Australians is the right of the monarch to dismiss a prime-minister and this power still exists in the UK (those who suggest otherwise have no basis on which to base the assertion) but because the powers in Australia have been delegated to a governor-general, the monarch does not usually have this personal authority.  However, although it’s not certain, it’s probable that a monarch does re-assume the power if standing on Australian so, something no politically unthinkable so if the need arose to sack an Australian prime-minister when a Monarch was visiting, they would immediately be taken for a day’s deep-sea fishing, it being necessary only to be 12 miles (20 km) off the coast to be in international waters, thus allowing the Governor-General do their dirty work.  If the need was to dismiss a state premier or Territory chief minister, then the monarch would need only to go for a swim because once beyond the low-water line off the coast, they would be splashing around in commonwealth waters and the state governor would be free to swing the axe.  That sound tactic would be fine except in the Northern Territory because up there, anyone stepping foot in the ocean will probably be eaten by a crocodile so a wise monarch will make a sudden dash for the Queensland border.  Even though the Northern Territory government has (most unfortunately) done away with the de-restricted (ie no speed limits) roads in the outback, the monarch is exempt from such rules so it’d be a quick trip.

Taking a morning constitutional: Lindsay Lohan out walking, Los Angeles, 2010.

The other connection has long been thought a historic relic.  Section 74 of the constitution provides for an appeal from the High Court to 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 High Court, however unlikely, remains possible.