22 April, 2010

Mutations Mutated

The official, sanctioned definition of "mutatis mutandis," that latinate tongue twister of childhood and mainstay of modern commercial contracts, has undergone more changes than the phrase itself calls to mind. Today, all attorneys with a passing fascination for dead romance languages use the phrase to mean "all things being equal, the necessary changes having been made." Historically, (though don't go searching for it in other books) the phrase was merely a polite means of recognizing differing perspectives and calming excitable tempers.

Any devoted reader of this lexicon who calls herself a commercial solicitor will be well acquainted with the practice of utilizing multiple versions of contracts, with changes manifesting from one black-line to the next. Your word-processorless predecessors, of course, were forced to make do with crude lead-lines of progressive contractual iterations (a practice which unfortunately led, pardon the pun, to many a poisoning death for such clerks). Thus, as it is today, for certain irascible lawyers on the opposite side of a contractual negotiation, a simple change of wording in an agreement was often a base affront to the spirit of the thing. This important latin phrase, therefore, was an immensely valuable tool for a latin-learned lawyer to avoid such potentially disastrous situations (the falling through of a deal, that is, not the all-too-common falling-ill of a clerk.)

The wise lawyer's reasoning would generally be thus:

"I say the disputed alteration is a minor variation on a common idiomatic expression that continues to be understood. You say the alteration irrevocably alters the foundation of our agreement," and then, with a shrug and a smile, "mutatis mutandis!"

In other words, "let's agree to disagree" or, as it were, bear to forbear.

This conciliatory approach to conflicts, a cherished hallmark of legal advocacy, soon found itself spread to other areas of cultural negotiation. The "original meme," as it were, soothed the often explosive fallouts that would erupt following seemingly innocuous but varying pronunciations of the names of root- and vine-based vegetables: instead of a ruined stew, one simply now shrugs and proclaims, "potato, potatah!" or "tomato, tomatah!" with a wink to our trusted lawyers.

Not long after, the calmative definition morphed into its more rigorous and technically correct latin meaning that we employ today. If this author were to trace the bastardized mutation of the definition to one particular historical event, he would say it was likely owing to its crass commercialization and rise to ubiquity with pop culture treatment courtesy of Moishe Gershwin's 1930's off-Broadway hit, "(Mutatis Mutandis) Let's Call the Whole Thing Adjourned Generally."

30 August, 2009

Sooth and Hearsay

Like so many reliable tenets of the jurisprudential realm, the modern Hearsay Rule, you will not be surprized to learn, was borne out of an abiding fascination with the Occult.

The Hereafter-Seance Rule, as it was originally termed - the effective prohibition on second-hand (and second-world) testimony - was a late 19th century reaction to a growing abuse of the trial process. At the close of that epoch, courts in Great Britain were facing a real problem: Jack the Ripper had recently placed serial killing in vogue, and a steady rise in deaths meant a steady dearth of a eyewitnesses.

Third-eyewitnesses, then, were a natural solution. Psychics and clairvoyants, previously confined to to catering to a sullen public with unresolved issues, suddenly found themselves in a place where no issue is ever left unresolved or masked beneath an impenetrable layer of obfuscation: the law.

It was not uncommon in those days for any number of capital murder trials to have a parade of such spiritualists testifying on behalf of the recently departed. After a rigorous series of direct examination questions, and a general dimming of the courtroom lights, skilled barristers were often able to elicit from various ethereal souls direct identification of accused murderers, and an occasional table levitation for a wearied jury.

The practice, however, eventually fell into disrepute. Emboldened by the lax vetting process for the experts, and the relatively wide leeway afforded to counsel on examination - crystal balls were routinely introduced as Exhibits A - defence counsel began bolstering their own witness lists with apparitions for any number of crimes, let alone murder. Judges also grew understandably sceptical that mediums could never sustain open lines of metaphysical communication for any length of time, or at least through cross-examination.

Eventually, the Privy Court's own Lord Frankensteen was led to famously declare that, "No testimony shall be admitted as evidence unless it be tendered by those who speak it." This, as you well know, was also largely responsible for the brief, and incomparably messy, fascination with spiritualists' next great feat, corporeal re-animation, a practice typically attempted in court. The venture was almost always unsuccessful, but it caused at least one courtroom guest, Miss Mary Shelley, a regular at probate court, to later get ideas.

Ultimately, it was deemed that incorporeal evidence could never rise above the circumstantial. And although we modern analysts may relegate these former experts to the realm of charlatanry, their true effect upon courtrooms of yore cannot be understated. During their heyday, the demand for these spiritualists was so great, amidst a supply so small, that barristers were often seen scrambling outside courthouses to retain the help of such professionals, a scene giving rise to the modern day appellation, Somnambulist Chasers.

29 August, 2009

Proprietary Poverty

Trademarks, as a branch of Intellectual Property law, have consistently proven a troublesome spot in the canon of relatively more defined legal concepts. We employ trademarks today as a sign of reputation and distinction, communicating to customers of a business that their patronage is not without some promise of recognizable quality.

This is a far cry, however, from the nascent nature of trademarks, where the designation was a clear indicator of ill-repute and generally shoddy workmanship. In fact, as recently as the early 19th century, to term something "Intellectual Property" was to actually deem it the opposite, as in, something only the hopelessly dim might buy. Indeed, the phrase is the first recorded instance of British irony, predating the adjective, "brilliant," by a good twenty-some years.

Industry, and the general application of skill and craftsmanship, was, in those times, entirely the province of the poor. The English workhouse, and its impoverished residents, were put to use as factories for the general population. Producing everything from masonry to toiletries, workhouses generated - at their height - more than the equivalent gross domestic product of Ireland. Observant visitors to London may see evidence of this fact by noting the the names of neighbourhood workhouses: not two blocks down from the Marylebone ("Mary the Good") Workhouse, lies the Moorenpaddy ("More than the Irish") Workhouse.

Of course, it was not long before the landed gentry, and generally idle, took note of the output and sought a stake in its burgeoning economy. These "Intellectuals," however, were known for giving great latitude to flights of fancy, and creating products that no one in their right mind should buy. For consumers, the choice was stark.

A purchaser of a wagon wheel for instance, could select between the sturdy, though admittedly plain, round kind produced by their local workhouse, or the variety created by the bourgeois, which, uncommon for wagons and transportation in general, was square, patented and copyrighted though it might have been. Rich as they were, Intellectuals were also flush with extraneous legal advice, and apprised of the necessary components of patentability - novelty, utility and invention - accordingly produced the "Reinvented Wagon WheelTM".

Of course, the opposite today is now true: we associate intellectual property with premium quality, and the poor are rightfully ostracized, incapable of everything as they are. However, the once-prevalent attitude towards Intellectual Property still lingers to some degree. Those practitioners who deal in solid, terra cognita, are still likely to bristle at the discussion of the concept, and who, as a result, had employed no small stroke of irony and snideness when they termed their own subject "Real Property."

14 February, 2007

The Man on the Clapham Omnibus

The Man on the Clapham Omnibus, to a lawyer, is synonymous with the pinnacle of reason in humanity: an ordinary London transit rider as representative of all rational thought and action. To members of the court at the time of this term's conception, the appellation is nothing more than an inside joke, one that has persisted to become a wondrous curio of the legal realm, like a "speedy trial" or "personal responsibility."

That is to say, the Man on the Clapham Omnibus was not the Reasonable Man at all: he simply resembled him, possessing the same generally handsome features - the curlicued mustache and well-fitting bowler hat - that the Reasonable Man was oft seen wearing. The Man on the Clapham Omnibus, in truth, was Reginald Toff, nothing more than a modest tallow chandler of Northcote Road. In fact, for a man who founded his candle-making business just days after the advent of electricity, (scented though they might have been) one might go so far as to declare him an "unreasonable" man.

The story goes like this: in June of 1753, the real Reasonable Man was due in Chancery courts to give expert testimony in the matter of R. v. Murphy. He failed to show up at court at the appointed time of 9 a.m., but barristers on both sides of the matter gave the witness the benefit of the doubt, conceding 10 a.m. to be a more reasonable starting time anyhow.

When the Reasonable Man still failed to show up, earnest law clerks were sent into Chancery Lane to try and catch a glimpse of the latecomer. Just at this moment the Clapham omnibus went chugging by, spiriting Mr. Toff within. It was the young clerk Philip Dunwell, in a typical attempt to win the favour of his superior judge, that yelled, "That's our man, the man on the Clapham omnibus!"

Judges, however, were right to question the likelihood of espying the Reasonable Man within the Clapham bus, as certainly any reasonable Londoner would have taken the Battersea Omnibus to court, generally regarded to be the more expedient of the two modes of public transportation.

Indeed, our Man had taken that route, but when the bell rang to signify his upcoming stop, it proved to be a death knell for his final stop. At the corner of Wakehurst and Northcote Road, the bus crashed, killing its occupants.

While tragic, the accident proved to be one of the more succinct cases London Peelers presided over: it was determined the driver of the omnibus acted within reason, just as the driver of the post-chaise had. It was, at the risk of literary hyperbole, a pure accident. William Hogarth would later reproduce this entirely unique occurrence in one of his trademark woodcuttings, depicting the accident taking place under both an eclipse and the end of a rainbow.

To make matters worse, the justice in the Murphy case had to declare a mistrial, concluding: "Everything that could go wrong, has." (The emphasis is his, not mine.)

10 February, 2007

The Carbolic Smoke Ball

Much ballyhoo is made of the Carlill v. Carbolic Smoke Ball Co. [1893] 1 QB 256 case - a touchstone in modern Contract Law from which we derive the notion of a unilateral contract and which serves as a warning to overzealous marketers of deficient products - but often overlooked is the startling fact that the smoke ball actually worked.

Law students who pore over the thoroughly-blanched photocopies of the hundred-year-old English case will take note of its major players: the plaintiff, a doctor-averse Mrs. Carlill, the Smoke Ball Company looking to bolster its promising IPO, and Alliance Bank, trustee of the £1000 to be paid out to any dissatisfied customers and those that are not greeted with a "Halloa!" What students are denied from the proceedings, however, is any mention of Mister Carlill.

True legal historians are keen to point out that Thomas Carlill was involved in a prior contract dispute, one that never made it before Chancery courts but nevertheless of considerable import to the history of modern Contract Law.

Thomas Carlill was about his regular business at the Alliance Bank, looking to withdraw £100 from his account there. Verily, it was a large sum for the times, but this is merely owing to the spendthrift nature of Mr. Carlill: above all, he despised withdrawing smaller sums from the various ATM's (Automatic Teller Merchants) located around London, notorious for attracting young street urchins looking for "fees" in their oustretched hands.

On that particular day, however, Carlill was not to be accommodated. For he came face to face with a new teller at the Alliance Bank, one Jude Whitscombe. A lad of 22, Whitscombe was, at the time, recently forced out of Oxford University, failing his necessary Literature finals. So, like any scholar fresh from the study of English Literature, he went into an entirely unrelated and more lucrative field.

In a stroke of bad luck, Whitscombe confused Thomas Carlill for Thomas Carlyle, Scottish historian and author of Sartor Resartus (The Tailor Retailored.) That tome, a meandering meta-fictional narrative of a German philosopher, is renowned amongst students for being impenetrable and, like the present Smoke Ball case, often the first item on a course syllabus. Whitscombe was no exception to the book's legendary confusion, and it was in fact the very reason that caused him to fail his exam and leave Oxford. That day, Whitscombe had accounts and a score to settle.

We only know that he was denied his money, but if Carlill's diary is to be believed, Whitscombe uttered, in the heat of the argument, "Your novel, sir, bloweth smoke up my arse!" (This unbecoming lack of courtesy, then, also explains where we derive the necessary element of "consideration" in the formation of a contract.)

Fanciers of irony will appreciate that had Mr. Whitscombe mistaken Thomas Carlill for novelist Thomas Hardy, he might have understood his fate as an obscure Jude, and happily given Mr. Carlill his money.

Nevertheless, the transaction was denied. Whitscombe held Carlill responsible for the sum of his misfortunes and it wasn't until marketers of the Carbolic Smoke Ball advertised the trusteeship of the Alliance Bank that Mr. Carlill saw a way to recover his money.

Indeed, Mr. Carlill was not a Scottish author, but rather an eminent pathologist. He of all people knew that he could never retrieve the money legitimately, as the smoke ball was, in his estimation, "no mere puff, but a panacea" (also recorded in his diary.) He involved his enterprising wife in the scheme.

Therefore, when Mary Carlill purchased the Carbolic Smoke Ball and adhered to its instructions, she was not inhaling smoke, but a rarefied strain of the influenza virus. Modern readers may gasp at the complete disregard for a wife's health in the face of a husband's designs, but to Mary, it was love, and to some extent, delirium brought on by the stronger-than-expected dose of the virus.

Two later scientists would try to replicate this mix of professionalism and romance, but the Curies of France have enjoyed little renown.

09 February, 2007

On the Hilarious History of Habeas Corpus

The term habeas corpus enjoys a lofty stature among jurists, commonly known as the "great writ." It is often trod out as the ultimate item of appeal, when a lawyer questions the legality of his client's imprisonment. Classicists will often relate the literal translation, "you have the body," as an explanation for the term's origin. This is a fair enough translation, but the term's actual conception occurred well after the Roman Empire's demise - 1500s London, to be exact.

Christopher Marlowe is sometimes credited as the "Real Shakespeare," but it was early London playwright Bartleby Cruikshank that might be described as the "Real Marlowe." It was Cruikshank's experiences in London gaols - he being a constant debtor - that gave rise to "Marlowe's" first popular play in 1581, a comedy of errors entitled, "The Forgetful Warden."

The play revolved around Hollis Borden, keeper of Newgate Prison. Borden was the cause of several comedic episodes within the prison because his constantly failing memory meant some prisoners, intended to stay for one night, would often languish in the cells indefinitely.

In one instance, Jenny Prattleswell pleads to Borden for the release of her lover, William. Borden, after finding William dead for want of food, serves up his long-lost and newly imprisoned twin, Hampton. Jenny is oblivious to the swap, attributing William's memory loss to a stay in gaol - Hampton merely happy to be free. Keen audience members, however, recognize that where William was missing his left ear, Hampton misses a right one.

The raucous appeal of the play usually peaked at the end of every act when Borden would, at the behest of the inquiring families, retreat to his prison officials and deliver the refrain:

"Have we his corpse?!"

Thus, the more familiar and Latin-ized term habeas corpus devolved from the Cockney pronunciation of this catchphrase, as the play was performed at the Rose Theatre, frequented with the more slovenly-tongued, lower-income crowds of Southwark.

We, of course, would find this warden's practice repulsive today. However, it seemed quite parodical to denizens of London at the time. It was quite common practice for family members to inquire at local gaols and have the existence of their imprisoned loved ones denied entirely.

Indeed, Alexandre Dumas romanticized this longstanding tradition in 1845 with The Count of Monte Cristo, seemingly offering hope to thousands of families that their relatives might one day return from prison. We know now, of course, that Dumas was doing no such thing, having instead been commissioned by the real Count of Monte Cristo to write the novel as a promotional tool for his many elaborate fĂȘtes.

As for the term's legal inception, it was only when the play's revival nearly 300 years later grew in popularity among the learned - and therefore political - crowd that questions about the legality of this habit started being asked. Member of Parliament Lord Hailsham remarked to the House, "You may, my lords, have seen Shakespeare's recent play 'The Forgetful Warden,' and asked, much like myself - what if we were to produce a corpse!"

Eventually, the sentiment gained momentum and found its way into courts as a useful tool for resourceful lawyers. Stories are often told of barristers of the late 20th century serving the writ in front of Lord Denning - a lover of the theatre - and hearing him reply with another of Borden's famous phrases:

"Jenny Prattleswell but her lover don't 'ear it!"

24 January, 2007

Famed Defamation Cases

The most opprobrious of all English common law defamation cases is surely that of Jane Doe. Born in 1768, Jane grew up in Wickham, England the only daughter of a local haberdasher. Her early life was marred by the death of her father from which she inherited the business, as well as a divorce from Bernhard Austen - whereupon she would curse taking his aimless son but not his name.

Life in Jane's time was dangerous, as highwaymen often preyed upon trade routes into London. Many women were discovered on those dangerous routes, the circumstances of their deaths extremely grisly.

Newspapers, with sales flagging from daily accounts of wartime deaths, found them renewed when running sensationalized stories of murder. A lack of proper journalistic investigation led to numerous stories of many "Jane Does" being discovered, shocking reports that angered our eponymous Jane.

Moreover, Jane found that clients from her shop were not inclined to pay in instances where they believed her to be dead - a fact that nevertheless did not discourage them from taking new items. This also explains prevalent legends of the "Wailing Ghost of Wickham Wares."

As a matter of course, Jane pursued defamation cases against newspaper editors. Naturally, Ms. Doe won the suits handily, as the burden of proof primarily consisted of her adducing evidence that she had not been murdered. Trials were thus usually expedient, a pace interrupted only once when infamous barrister Henry Highsmith objected to Mrs. Doe's claim that she had not been murdered, he being a fervent believer in witches. Mr. Highsmith was held to be in contempt of court.

Legal judgment, however, was to be Jane's only victory, as when it came to collecting monetary compensation from the damages, newspaper owners brought third party proceedings, claiming proper restitution could only come from the nameless victims. This admitted weakness in the English court system spelled out disastrous consequences for the rest of Jane Doe's life, who engaged countless cases to no financial end.

As a cruel coda, newspaper editors often begrudged the fact that Ms. Doe had dragged them into court so often. When she finally died in 1791, newspaper editors took the initiative to publish her obituary. The London Times ran the following:

Jane Doe, survived by her only son John, died penniless with nothing to her name.

It is reported that her tombstone carries the very same inscription, but the claim is unverified as locating her burial site has proved impossible.