Indefinite Article
bY SIR CARLETON ALLEN, Q.C.
T0 most mortals words are given, as the cynic has said, in order to conceal their thoughts. To legislators they , are given for a nobler purpose—namely, to provide Intellectual exercise for judges and to support the wives and 'an-lilies of deserving members of the legal profession. Perna- loent speaks; the courts interpret; the litigant pays. It is a very fair division of labour.
, On the same day, not long ago, that the Court of Appeal had decided that the sand-bed of a foundry was a " floor " Within the meaning of the Factories Act, 1937, the Divisional ourt of the Queen's Bench held that a goldfish was not an article" as contemplated by the Public Health Act, 1936. ln coming to this conclusion the Lord Chief Justice surprisingly Said: "I cannot contend that our judgement will add a great deal to the jurisprudence of this country." Little do judges realise how much may hang upon their lightest words I Whatever this decision may have done to jurisprudence (and does that really matter ?), it has made a momentous impact °II the Minister of Health, on all ichthyologists and etymologists, on what I should guess to be the National Union Of Miscellaneous Merchandise Assemblers (vulgarly known as rag and bone merchants), on magistrates and the police, on the whole problem of juvenile delinquency, on the institution of the family, and consequently upon the moral fibre of the entire nation.
There are among us many descendants of Autolycus who Ply an active trade in " rags, old clothes or similar articles" (to quote the statul 3). Their customers are chiefly the very Y°1ing. from whom they obtain their unattractive gleanings not by the cash nexus, but by barter of objects calculated to allure puerile mind and taste. An earlier Public Health Act had forbidden barter by "any article of food " (" food" in this connection usually denoting stickjaw) "or any balloon or other The Act of 1936 was more explicitly aimed at (or for) 'o,,e young, since it not only prohibited barter with any person, °Li whatever age, by "any article of food or drink," but forbade uargaining with a person under the age of fourteen by means of any article whatsoever. All this ostensibly in the interest of Public Health, to prevent the circulation of rag, tag and bobtail of septic possibilities. But the legislature sometimes has a deeper moral purpose than appears from its jejune terminology. Members of Parliament may have realised, as all magistrates have learned to realise, that the rag-picker is a " carrier " not so much of physical infection to the public as of moral temptation to naughty boys. They, in their illicit passion for "any article whatsoever," only too often bring to market garments and remnants not honestly come by, such as father's venerable but valued gardening trousers or mother's pre-war costume which she had long intended (but never quite had the resolution) to put into the jumble sale. Tongue cannot tell the amount of domestic distress, not to mention the demoralisation of our budding citizens, which has been caused by these transactions.
But the scrap-gatherer, indifferent to all this havoc, is as shrewd as he is heartless. Age cannot wither, por custom stale, the infinite variety of his harvest. By financial calculation which would do credit to a bookmaker's clerk he cheerfully submits to a fine every now and then for breaking the law, setting it off as a routine trade expense against his profits. And when, not long ago, a stipendiary magistrate decided that by no construction of the English language could he regard a goldfish as an article, why, then the door of opportunity was flung wide open ! The trade (probably having taken counsel's opinion) reasoned acutely that a jam-jar containing a goldfish would certainly be an article; but not a goldfish simpliciter. And so, in return for Mum's unconsidered seaside hat (the one with the poppies), young Alf can have a glittering goldfish, satisfying that notorious auri sacra fames, provided that he brings his own jam-jar. The news soon gets round, and jam- jars are in great demand in the neighbourhood. Portia herself could not outwit Autolycus.
It is one thing to decide that a goldfish is not an article and another and a more difficult thing' to determine what is an article. By derivation it is merely a joint, and it may be that a goldfish fails to qualify as an article because it is not jointed. ([know that it is vertebrate, but vertebrae are not joints, they are discs—those things which are always slipping nowadays.) It is astonishing how many different and improbable ...meanings seem to have sprung from the Roman idea of a joint.
I find a bewildering- variety of them in the New English Dictionary, ranging from "a nick of time" to the number ten in arithmetic and to the definite and indefinite articles in grammar, and from the separate members or portions of anything written" (including the Thirty-Nine Articles and the Articles of War) to "a commodity, a piece of goods or property, a chattel, a thing material." Is not a goldfish "a thing material," or (to quote another heading) "a material thing forming part of, or coming under the head of, any class" ? No, says the Queen's Bench Division; "if the statute had said 'article or thing,' as some statutes have said, there could be no doubt. . . that a goldfish would be a thing." A thing, then, is anything, animate or inanimate—which may be tautology, but seems to berhe English language; whereas in law it appears that the essence of an article is that it is inanimate: As against this it is stated that Mr. Justice Byles, himself an inveterate equestrian, once described a horse as an article. Here we may observe the limits of scholarship. In all its elaborate categories the New English Dictionary has not discerned that inanimateness is the essence of an article. Thus judges can sometimes be greater lords of language than etymologists, by applying the common sense of the common law; for is it not common sense that a dead sardine is an article and a live goldfish is not ? Another glance at the NED has left me with a perturbing doubt. A goldfish may not be an article but this which I am writing undoubtedly is. It should therefore be, according to the highest authority, "a literary composition forming materially part of a journal . . ., treating a specific topic distinctly and independently." Now this article—is it articulatus, jointed ? Is it a literary composition ? Has it treated its topic distinctly and independently ? Above all— anxious thought—is it inanimate ? I decline to speculate.
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