Category Archives: General Rambles

Pulling our Leggatt?

Judicial humour – what do we think? Ever appropriate? I am slightly torn: On the one hand, it can be the cause of horrid sycophantic laughter in court. On the other, I do like a pun, in general, so I suppose there’s no reason why a judge should be barred from the fun. But on the third hand, when these things appear in meticulously-prepared Supreme Court decisions, there is a bit of a feeling that the judge in question must have been rather too pleased with himself (or herself, in theory).

Anyway, I noticed this little pun in Lord Leggatt’s judgement in the recent big nuisance case (about the posh London flats, the owners of which were annoyed at people looking in from a viewing platform at an art gallery), Fearn and others v Board of Trustees of
the Tate Gallery [2023] UKSC 4.

Overlooking in two senses! Ho ho! Groansome or great? You be the judge!

GS

2/2/2023

Photo by Quino Al on Unsplash

Badge saying Coal Not Dole'

Striking times

In these times of strike, my thoughts turn (predictably) to the important question of ‘What did Welsh newspapers of the 19th/early 20th century have to say about strikes?’

And of course the Welsh and English language press had much to say about the great industrial battles which are a part of Welsh and wider British labour history. But naturally enough, there is at least one bad poem on the subject, here, from 1853:

This one takes a bit of a dodgy turn in the middle, having started off in a way which could be read as positive. Be happy with your lot, workers!

And this one tickled me – report from 1904 of a striking choir in the West Midlands. No doubt that would have seemed a particularly terrible thing to readers in the ‘Land of Song’. Note the use by church ‘bosses’ of scab child labour to cover essential services …

 

GS

1/2/2023

Main image – something very evocative of my childhood, not quite so long ago, but long enough.

 

Law, Equity, Doomed ‘Marriages’? (And ‘Lesbian Rules)

In more than one previous post, I have gone on about what I think is the questionable use of metaphor in legal writing and judgments. I am not too keen on the use of metaphor in legal discussion. Isn’t it often more confusing than elucidating? And not infrequently more than a bit pretentious?

Well, whatever one makes of the general question of metaphor, there are some individual usages which are particularly objectionable – emasculation is my least favourite, and the reproductive metaphors (Cowcher v Cowcher, anyone?) are also pretty grim, and indicative of a special brand of judicial self-regard. A historical sex/gender-related area of metaphorical activity which had me thinking today was from the 1870s, when the big news in the legal world was the bringing together of the administration of law and equity in one court system, under the Judicature Acts 1873-5.

Those of us who have been through the law-degree route will be very familiar with this being metaphor-ised with watery imagery, in ‘Ashburner’s fluvial metaphor’ (‘two streams of jurisdiction [which], … run in the same channel [but] run side by side and do not mingle their waters’[i]]. At the time of the acts themselves, however, quite a different metaphor was used: that of marriage (or, in some cases, marital sex).

One account mixed metaphors of war and consummation of marriage. Which may well say something about some people’s experience of marriage. More commonly, a more-or-less consistent wedding metaphor was used, though in this poem copied from Punch, the likely tensions in the marriage are certainly emphasised.[ii]  Surprise, surprise, the ‘gruff’ masculine character is the common law, and ‘sweet Equity’ is the bride (virginal, obvs).

One possible problem with the metaphorical marriage can be seen though, if we add in something a bit earlier. It is a completely anachronistic reading, I know, but it made me smile anyway. Another image of equity, much older, but apparently still current in the days of complaint about the problems of separate jurisdictions, in the nineteenth century, was that of equity as ‘the lesbian rule’. Yes, you read that right. And wrong. Because, sadly, it is not, in fact, a suggestion that the Court of Chancery was much more open-minded than other jurisdictions, and welcoming to women who were attracted to women.

It was brought up in a letter by  ‘A Voice from Lincoln’s Inn’, printed in that well-known legal source,the Monmouthshire Merlin for 16th March 1850:

‘[Truly has it been said by that ancient but erudite lawyer, Sir John Doderidge, that “It is a court of conscience, which giveth comfort, considereth all the circumstances of the fact, and is, as it were, tempered with the sweetness of mercy: it mitigateth the rigour of the common law, and leaving the inflexible iron rule, taketh the leaden Lesbian rule and issueth this sentence full of comfort to the afflicted, “Nullus recedat a Cancellaria sine remedio”’. [The Lawyer’s Light, (1621), p.175.][iii]

Sadly it is actually about a flexible tool for building purposes, the origin of which was ascribed to Lesbos (and which is contrasted with the oh-not-at-all-phallic inflexible rule/rod of the common law). The point is its bendiness rather than its sexual preferences. Still, I do think that those of us who teach in the property/equity area should be making more of an effort to bring this metaphor back. As chance would have it, I am doing some equitable bits of Land Law this week, so I don’t suppose I’ll be able to stop myself bemusing the students with it.  Seems a bit more exciting than rivers anyway

GS

30/1/2023

(Additions/updates

Another interesting image for the fusion of law and equity – from a previous effort – is that of mixing strychnine and prussic acid – ‘A Horrible Compound’, Punch, 19th May 1860, p.8. This image made a comeback in Punch, 19th March 1873, p. 8:

Chemistry of Law Reform

There is talk about a contemplated ‘Fusion of Law with Equity’. Perhaps if this be effected, the resulting amalgam will be innocent, or even salutary. Such is sometimes the case with a compound, the constituents of which are deadly poisons.’

Then in 1875, we have a nice disease image: Punch 21st August 1875, p. 6

Suitors’ Sufferings

As Law is to Rheumatism, so is Equity to Gout. The fusion of Law and Equity may be said to form the counterpart of Rheumatic Gout.)

And on the ‘lesbian rule’ issue – of note is the to-ing and fro-ing between seeing the ‘lesbian rule’ as a good or neutral thing, and seeing it as a bad thing (the ‘palm tree justice’ of its day – another image which could certainly do with some examination). We certainly get ‘lesbian rule = arbitrary’ in Earl of Dalhousie v. Lord and Lady Hawley (1712) Mor. 14014, a Court of Session case, but older uses of the phrase are not necessarily hostile, suggesting that there is virtue in flexibility, and adjustment to the irregularities and curves (as it were) of a situation.

More matrimonial images

We have a law-equity marriage in a description of the effect of the Statute of Uses 1536, in ‘The Conveyancer’s Guide’, a long, long poem about, yes, conveyancing (and why not?( published in a collection of 1885:

‘The use, which was a sort of bride

was fast to the possession tied:

they were conjoined and married.

You can’t have one without the other:

like man and wife they go together.’

–  J Greenbag Croke (ed.), San Francisco 1885) Poems of the Law,

[i] Walter Ashburner, Principles of Equity, (London, 1902), 23.

[ii] Well, not entirely consistent – it does have a nasty miscarriage metaphor too, in the first verse.

[iii] (Doddridge’s book was actually printed in 1629, I believe). This image was used in English legal writing from (at least) the early modern period – e.g. Selden, Janus Anglorum 1 c.7, but elsewhere as well, and is usually credited to Aristotle, Ethics, v. References are often rather negative (it’s the thing we don’t want law to be) which would strike a chord with women in general and (modern style) lesbians in particular.

Photo by Jeremy Wong Weddings on Unsplash

Judges and kisses

Continuing with love-themed stuff, in honour (or, more probably, dishonour) of the season of pink hearts, and making it vaguely law-themed, here are a couple of bits on two things you wouldn’t think to put in the same title – judges and (remembered or imagined) kisses.

The first snippet comes from a breach of promise case.  I give you the reported sentiments of Lawrance J in the Suffolk assizes, in a breach of promise case in 1906. The case was brought by a certain Ethel Wheelhouse against ‘a veterinary surgeon’ (note, her name is publicised, his is not). Ethel did actually win the case, albeit recovering only a relatively small amount (£5) in damages). Nevertheless, there was some comment from the judge as to the quality of the love letters between the two: they never ‘got to burning point’, and, in particular ‘there were no crosses for kisses’. All in all, things had been ‘hotter in his day’. Was any of that really necessary? Rather condescending, and not a little narcissistic. And I am not sure anyone wants to think about judges salivating over hot kisses.

Then, also from 1906, we have an extra-judicial opinion on the subject, also related to love letters, from the Master of the Rolls (Sir Richard Henn Collins). This one, which combines condescension (again) and a bit of an obsession with kisses. He was giving out prizes to some ‘girl typists’, and felt moved to ‘speak of the lady typists’ love letters’,  asking (a bit creepily, let’s be honest, though no doubt thinking he was charming) about the idea of writing a love letter on a typewriter, and whether any of them had ever received a type-written love letter. In particular whether there was ‘in the region of type production anything that of itself could depict a kiss’. I am imagining that being followed by nervous laughter. And why would a type-written x not be obviously the same as a written one?

The very dreamy Richard Henn Collins. Relax ladies, he was married (and is now extremely dead).

Finally, getting much more modern, there is a report from 1907 of a judge rebuking a defendant for saying in court that a woman used to give him whisky and kisses, on the grounds that ‘when ladies kiss me, I generally hold my tongue’. Did he have to? Pass the heart-shaped sick bucket.

GS

23/1/2023

Photo by Marek Studzinski on Unsplash

Bolder than the rest

Who needs a bit of historical cheer and encouragement this morning? I enjoyed this little 1908 story of a Llanelli ‘female’ who was ‘bolder than the rest’ and put a snobby minister in his place. 

It does leave questions, doesn’t it: who was this excellent woman, and who was the condescending clergyman? Just one more tantalising glimpse of women of the past not shutting up and taking it.

It encouraged me, anyway. Will be drawing on the energy of the unknown objector today, if anyone should talk down to me!

GS

18/1/2023

Long rain, short reign

Very wet morning walk today – not easy to get myself going. Did see this curiosity though – an Edward VIII postbox. How odd to think of people putting these up, assuming that they were in for years of E VIII. Historical hindsight, eh? Not that I am either in favour of monarchy, nor at all sympathetic to E VIII (very dubious character). But an interesting little time capsule of a thing. And of course I was immediately set off thinking about a micro-legal-history project on the Laws of Edward VIII. No, no, no … far too many other things on my plate …

(Yes, it was dark – winter + obviously this)

GS

14/1/2023

Woman in 2030 – not long to go now …

Today, looking for something in HeinOnline, I stumbled across  F.E. Smith (Birkenhead), The World in 2030 A.D. (London, 1930). I had never seen this before, and was interested to see that it includes a chapter ‘Woman in 2030’ – summary – there will be ectogenesis, but we should know our place… must get working on that charm and wit, only 7 years to go …

 

What a nice man! I note, also that it is dedicated to his daughter, Pamela (p. v). I wonder what she made of Daddy’s thoughts on women.

In some ways – apart from the content, this is my ideal book, bringing together law, history and a sort of sci-fi (and the illustrations are great). But then there is the content – not just dubious sexism, but also all sorts of other stuff which is very questionable from a race point of view,

I am excited to see that, within 7 years we will have:

limitless cheap power (p.3)

no more epidemic diseases (p.7)

completely painless childbirth (p.11)

drudgery abolished by science (p. 17)

Though sadly, as p. 21 tells us …

And the ‘ideas of Asiatic peoples’ may mean that we don’t in fact get rid of epidemics (p. 21). Yes, there is plenty of racism (and eugenics) in here.

 

A few other odd suggestions

p. 36 – ‘Cavalry, organised as mounted machine-gunners, will come into their own again.

p.72 mentions a 16 hour working week (because, technology, science etc etc). Wouldn’t that be nice!

p.88 We will be on our way to being content with the ‘rule of experts’ rather than party politics.

p. 91 All children will go to university.

p. 92 The conquest of poverty will be in sight.

p. 103 ‘Dirt will have disappeared from the ordinary man’s experience.’

p. 107 ‘As wealth increases, we shall all be able to ride to hounds.’

p. 155 ‘British rule in India will endure.’

p. 191 Average life span will be 120 years, and life will end with euthanasia.

 

 

 

 

GS

9/1/2023

 

 

‘Emasculation’: they are still at it …

I have a long-standing concern with the metaphorical use of the concept of  ‘emasculation’ as a way of describing weakening something or effectively rendering it useless. (See older comments on it). Why – well, think about it, the message is ‘something with male genitalia good, powerful, strong; something without male genitalia feeble, damaged, pointless’. It is less frequently encountered in legal sources, these days, but not as absent as it should be.

A quick New Year scan of Westlaw shows that it came up in some recent cases, discussing the weakening of statutes, statutory provisions, powers, etc. (see, e.g., DPP v Bailey et al. [2022] EWHC 3302 at para 18; Interactive Ltd. v. Oovee Ltd [2022] EWCA Civ 1665 at para 40; Novartis [2022] EWHC 959 (Ch) at 31). Particularly striking, perhaps, was its appearance in the Supreme Court (Lady Arden) in Triple Point v PTT [2021] UKSC 29 at 53, in relation to emasculation of a cap on liability by way of a ‘cap carve-out’ (which seems an odd mixture of different parts of the body, apart from anything else, though I suppose the ‘carve out’ idea has some resonance with the process of castration).

There is not too much resort to this sort of thing in modern legal scholarship, but I did note a pair of emasculations in an article in one of the most prestigious English law journals: see Neil Duxbury, ‘Final court jurisprudence in the crystallisation era’ L.Q.R. 2023, 139(Jan), 153-166, 165, in which a law professor chose to describe the practice of undermining or weakening precedents through the language of removal of male genitalia. It is very interesting to ponder what is the ‘spin’ on the subject matter of the article – jurisprudence, modern legal history of a sort – which is given by this emasculation vocabulary, to what extent its inclusion was uncritically carrying on the patterns of past analysis, to what extent it was a considered choice, and whether there is any sense in which it was necessary to use this metaphor in an article in 2023.

 

GS

4/1/2023.

Photo by Esteban Bernal on Unsplash

Love and peace from Sir F. Pollock

Came across this today, and it is rather nice – lawyers, historians – let’s be friendly and interdisciplinary!

(from F. Pollock, Oxford Lectures and Other Discourses (London, 1890), 45(

Now wouldn’t that be nice?

Legal History goals for 2023 …

[Editing out the latter parts of this chapter, celebrating Empire in a very hubristic way …]

GS

30/12/2022

Ladies – know your place!

A couple of newspaper snippets caught my attention today, both on the topic of female incursion into the male domain of history. In one case, from 1895, this seems to have been treated with some scorn:


In the other case, from 1901, I suppose it is treated with some amazement:

I must say, a night out watching a child answering history questions sounds absolutely thrilling! Why doesn’t somebody bring that back?

GS

29/11/2022.