A Curious Miscellany of Items Philosophical, Historical, and Literary

Manus haec inimica tyrannis.

Friday, January 17, 2020

The Spectacled Avenger’s Reading List, 2019

At the beginning of every year, I post the list of books read during the previous year. The fact that I got most of the way through January without having done so is rather emblematic of the kind of year 2019 was for me. I spent half of it working two full-time and demanding jobs. Between that and a couple of personal crises, I was left with little time or mental energy to keep up this blog. I hope to be a better blogger in 2020, but I don’t feel I can securely guarantee that.

Interestingly, despite the foregoing, I still managed to read 75 books in 2019, which is around the average. So I somehow found time to read, but not to blog. And I notice that last year, I didn’t publish my reading list until February 8. So I suppose I shouldn’t feel too bad…

Looking back on patterns in the reading, two in particular stand out: English legal history (Fleta, Glanvill, Fortescue, Coke, Hale, Simpson), and Parliamentary law and history (Hatsell, Elsynge, Jefferson). Otherwise, the only other pattern is the usual one: lots of 17th- and 18th-century English literature.

As with every other year, books I particularly enjoy are in bold. If a book appears twice, it’s because I read it twice.

*               *               *               *               *

ALLESTREE, Richard [?]. The Government of the Tongue. Oxford, 1675.

ANONYMOUS. Fleta (Vol. II: Prologue, Book I and Book II). H. G. Richardson and G. O. Sayles (eds.). London: Selden Society, 1955.

ANONYMOUS. Fleta (Vol. III: Book III and Book IV). H. G. Richardson and G. O. Sayles (trans.). London: Selden Society, 1972.

ANONYMOUS. Fleta (Vol. IV: Book V and Book VI). G. O. Sayles (ed.). London: Selden Society, 1983.

BACON, Francis. The History of the Reign of King Henry the Seventh. Jerry Weinberger (ed.). Ithaca, NY: Cornell University Press, 1996.

BALDWIN, James Fosdick. The King’s Council. Oxford: Clarendon Press, 1969.

BOLINGBROKE, Henry St. John, Viscount. The Works (Vol. I). David Mallet (ed.). London, 1754 (facsimile, Hildesheim: Georg Olms, 1968).

BOLINGBROKE, Henry St. John, Viscount. The Works (Vol. II). David Mallet (ed.). London, 1754 (facsimile, Hildesheim: Georg Olms, 1968).

BOLINGBROKE, Henry St. John, Viscount. The Works (Vol. III). David Mallet (ed.). London, 1754 (facsimile, Hildesheim: Georg Olms, 1968).

BOSWELL, James. The Life of Samuel Johnson (Vol. I). Rodney Shewan (ed.). London: Folio Society, 1993.

BOSWELL, James. The Life of Samuel Johnson (Vol. II). Rodney Shewan (ed.). London: Folio Society, 1993.

BRONTË, Emily. Wuthering Heights. Oxford: Oxford University Press, 1999.

BROWN, John. An Estimate of the Manners and Principles of the Times and Other Writings. David Womersley (ed.). Indianapolis, IN: Liberty Fund, 2019.

BUCKINGHAM, George Villiers, 2nd Duke of. The Rehearsal. D. E. L. Crane (ed.). Durham, UK: University of Durham Press, 1976.

CAMDEN, William. Remains concerning Britain. Thomas Moule (ed.). London: John Russell Smith, 1870.

CHRIMES, S. B. An Introduction to the Administrative History of Mediaeval England. Oxford: Basil Blackwell, 1952.

CLAUSEWITZ, Carl von. On War. Michael Howard and Peter Paret (eds.). New York: Everyman’s Library, 1993.

COKE, Sir Edward. The Third Part of the Institutes of the Laws of England. London: W. Clarke and Sons, 1817 (facsimile, Clark, NJ: Lawbook Exchange, 2012).

COLERIDGE, Samuel Taylor. Biographia Literaria (Vol. I). London: Rest Fenner, 1817 (facsimile, Menston, UK: Scolar Press, 1971).

COLERIDGE, Samuel Taylor. Biographia Literaria (Vol. II). London: Rest Fenner, 1817 (facsimile, Menston, UK: Scolar Press, 1971).

COLERIDGE, Samuel Taylor. Poems. John Beer (ed.). New York: Everyman’s Library, 1999.

CONFUCIUS. The Analects. Arthur Waley (trans.). New York: Everyman’s Library, 2000.

CONGREVE, William. The Comedies of William Congreve. Anthony G. Henderson (ed.). Cambridge: Cambridge University Press, 1982.

COWLEY, Abraham. The Mistress with Other Select Poems of Abraham Cowley 1618-1667. John Sparrow (ed.). London: The Nonesuch Press, 1926.

DICEY, A. V. Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (2nd edition). London: Macmillan and Co., 1914.

DONNE, John. Essays in Divinity. Evelyn M. Simpson (ed.). Oxford: Clarendon Press, 1967.

ELSYNGE, Henry. The Manner of Holding Parliaments in England. London: Thomas Payne, 1768 (facsimile, Shannon, Ireland: Irish University Press, 1971).

FARTHING, John. Freedom Wears a Crown. Toronto: Kingswood House, 1957.

FILMER, Robert. Patriarcha and Other Writings. Johann P. Sommerville (ed.). Cambridge: Cambridge University Press, 1996.

FORTESCUE, Sir John. A Learned Commendation of the Politique Lawes of England. Robert Mulcaster (trans.). London: Richard Tottel, 1567 (facsimile, Amsterdam: Theatrum Orbis Terrarum, 1969).

FORTESCUE, Sir John. The Governance of England. Charles Plummer (ed.). Oxford: Oxford University Press, 1926.

GAY, John. Fables (Vol. I, 5th edition). London: J. and R. Tonson and J. Watts, 1737.

GAY, John. Fables (Vol. II, 3rd edition). London: J. and P. Knapton and T. Cox, 1747.

GLANVILL, Ranulf de [?]. The Treatise on the Laws and Customs of the Realm of England Commonly Called Glanvill. G. D. G. Hall (trans.). London: Nelson, 1965.

GODWIN, William. Enquiry concerning Political Justice (Vol. II). London: G. G. and J. Robinson, 1798 (facsimile, Toronto: University of Toronto Press, 1969).

HALE, Sir Matthew. The Prerogatives of the King. D. E. C. Yale (ed.). London: Selden Society, 1976.

HAMILTON, Alexander, James MADISON, and John JAY. The Federalist, or The New Constitution. Norwalk, CT: Easton Press, 1979.

HATSELL, John. Precedents of Proceedings in the House of Commons (Vol. I). London: Luke Hansard, 1818 (facsimile, Shannon, Ireland: Irish University Press, 1971).

HATSELL, John. Precedents of Proceedings in the House of Commons (Vol. II). London: Luke Hansard, 1818 (facsimile, Shannon, Ireland: Irish University Press, 1971).

HATSELL, John. Precedents of Proceedings in the House of Commons (Vol. III). London: Luke Hansard, 1818 (facsimile, Shannon, Ireland: Irish University Press, 1971).

HATSELL, John. Precedents of Proceedings in the House of Commons (Vol. IV). London: Luke Hansard, 1818 (facsimile, Shannon, Ireland: Irish University Press, 1971).

HOBBES, Thomas. Behemoth. Paul Seaward (ed.). Oxford: Clarendon Press, 2010.

HOCHSCHILD, Adam. Bury the Chains: Prophets and Rebels in the Fight to Free an Empire’s Slaves. Boston: Mariner Books, 2006.

HODGSON, Robert. The Life of the Right Reverend Beilby Porteus, D.D. Late Bishop of London. London: T. Cadell and W. Davies, 1811.

HORACE. A Poetical Translation of the Works of Horace (Vol. III). Philip Francis (trans.). London: W. Strahan, J. Rivington, et al., 1778.

JEFFERSON, Thomas. Jefferson’s Parliamentary Writings (The Papers of Thomas Jefferson, Second Series). Wilbur Samuel Howell (ed.). Princeton, NJ: Princeton University Press, 1988.

KAMES, Henry Home, Lord. Historical Law-Tracts. James A. Harris (ed.). Indianapolis, IN: Liberty Fund, 2019.

KRAUT, Richard. What is Good and Why: The Ethics of Well-Being. Cambridge, MA: Harvard University Press, 2007.

MANTHORPE, Jonathan. Claws of the Panda: Beijing’s Campaign of Influence and Intimidation in Canada. Toronto, ON: Cormorant Books, 2019.

McKAY, Richard A. Patient Zero and the Making of the AIDS Epidemic. Chicago: University of Chicago Press, 2017.

MILL, John Stuart. Collected Works (Vol. XIX: Essays on Politics and Society). J. M. Robson (ed.). Toronto: University of Toronto Press, 1977.

MILTON, John. Paradise Lost. Barbara K. Lewalski (ed.). Oxford: Blackwell, 2007.

MOSSMAN, Mary Jane and Philip GIRARD. Property Law: Cases and Commentary (3rd edition). Toronto: Emond Montgomery, 2014.

MURPHY, Arthur. The Life of David Garrick, Esq. (Vol. I). London: J. Wright, 1801.

MURPHY, Arthur. The Life of David Garrick, Esq. (Vol. II). London: J. Wright, 1801.

NAGEL, Ernest and James R. NEWMAN. Gödel’s Proof. New York: New York University Press, 1986.

NEAVE, Edwin H. Financial Systems: Principles and Organisation. London: Routledge, 1998.

NEDHAM, Marchamont. The Excellencie of a Free-State. Blair Worden (ed.). Indianapolis: Liberty Fund, 2011.

PEPYS, Samuel. The Diary of Samuel Pepys (Vol. IV: 1663). Robert Latham and William Matthews (eds.). London: G. Bell and Sons, 1971.

PLATT, Colin. King Death: The Black Death and its Aftermath in Late-Medieval England. Toronto: University of Toronto Press, 2001.

RICHARDSON, Samuel. Selected Letters of Samuel Richardson. John Carroll (ed.). Oxford: Clarendon Press, 1964.

SAINT-ÉVREMOND, Charles de. The Works of Monsieur de Mr. St. Evremond (Vol. I). Pierre des Maizeaux (trans.). London: J. and J. Knapton, J. Darby, et al., 1728.

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. Soliloquy: or, Advice to an Author. London: J. Morphew, 1710.

SHAFTESBURY, Anthony Ashley-Cooper, 3rd Earl of. An Inquiry concerning Virtue, in Two Discourses. London: A. Bell et al., 1699 (facsimile, Delmar, NY: Scholars’ Facsimiles and Reprints, 1991).

SHAFTESBURY, Anthony Ashley Cooper, 3rd Earl of. A Notion of the Historical Draught or Tablature of the Judgment of Hercules. London: A. Baldwin, 1713.

SHAFTESBURY, Anthony Ashley Cooper, 7rd Earl of. Speeches of the Earl of Shaftesbury, K. G., upon Subjects Having Relation Chiefly to the Claims and Interests of the Labouring Class. London: Chapman and Hall, 1868 (facsimile, Shannon: Irish University Press, 1971).

SIMPSON, A. W. Brian. Leading Cases in the Common Law. Oxford: Clarendon Press, 1995.

SWIFT, Jonathan. The Examiner (2nd edition). London: Francis Cogan, 1730 (facsimile, New York: AMS Press 1967).

SWIFT, Jonathan. Political Tracts 1713-1719 (Prose Works, Vol. VIII). Herbert Davis and Irvin Ehrenpreis (eds.). Princeton, NJ: Princeton University Press, 1953.

TAYLOR, Jeremy. The Whole Works of… Jeremy Taylor (Vol. V). London: Longman, Orme, Brown, et al., 1839.

TEY, Josephine. The Daughter of Time. New York: Scribner, 1995.

TWAIN, Mark. Tom Sawyer and Huckleberry Finn. New York: Everyman’s Library, 1991.

WILLIAMS, Graeme, QC. A Short Book of Bad Judges. London: Wildy, Simmonds and Hill, 2013.

WODEHOUSE, P. G. The Code of the Woosters. New York: Everyman’s Library, 2000.

WODEHOUSE, P. G. Uncle Fred in the Springtime. New York: W. W. Norton, 1997.


Friday, December 13, 2019

Before Collier

William Congreve
In 1698, a clergyman named Jeremy Collier (1650-1726) published a pamphlet entitled A Short View of the Immorality and Profaneness of the English Stage. It was one of those little works that, while almost completely unread now, had an outsize effect in its day, in this case on English theatre. In it, Collier denounced the English stage for its perceived propagation of every kind of vice: profanity, blasphemy, sexual license, irreligion, you name it. Theatre had become a threat to public morals.

It would be easy to write Collier off as yet another Puritan killjoy. However, he is worth taking seriously for a few reasons. For one thing, he was not a Puritan or dissenting “fanatic”; he was a High Church Tory. In other words, he was a representative of The Establishment, and therefore could not be written off so easily by the beau monde. Second, his work touched a nerve, even with the playwrights whose works he attacked. Collier marks a turning point.
For the English stage, and for English comedy in particular, the period up to 1698
BC (“Before Collier”), is broadly spoken of as the period of “Restoration Comedy”. It is marked by all the excesses one associates with the stereotyped culture of the Restoration, its debauchery, sexual license, and general indifference towards received moral and religious norms. The language of Restoration Comedy was bawdy and demotic. Its stock characters were the prostitute, the pimp or procurer, the young rake, the rich and horny widow, the young and horny wife (and her cuckolded husband). What is now rightly considered “sexual assault” was a very frequent plot device in the comedies (!) of the age. Bill Cosby could have plied women with drugs in one of these plays to great comic effect if he were living in London in the 1670s. All of which is to say that, rather than being just another dour crank, Collier had a point.“AC” or after Collier, the language of comedy becomes more subdued. The plots are less “rapey”. Attempted seduction or adultery is less often successful, and unhappily married couples are reconciled at the end. There are happy endings for the virtuous – or for the repentant – and vice comes to a bad end. In short, playwrights started writing plays differently, or like William Congreve (1670-1729), left off writing plays altogether.

Congreve is actually my reason for writing this. I had read The Way of the World (1700) many years ago and remembered little of it. In my mind, Congreve represented the polite, neoclassical – “after Collier” – generation of writers I associate with the likes of Addison and Pope. There is no real reason for this other than my general ignorance of his works, and the mental image I have of that Kit-Kat Club portrait of him by Sir Godfrey Kneller. I was disabused of this assumption after recently reading all his comedies and finding them to be firmly in the Restoration tradition.

Besides having all the louche elements of Restoration Comedy abovementioned, I was also very alert to a number of Rochesterian references in these plays. By “Rochesterian” I mean references to the writings of the naughty Earl of Rochester (1647-1680), a poet almost synonymous with the moral and spiritual bankruptcy of Restoration libertinism. And although Rochester died when Congreve was about 10 years old, there would have been a direct link between the two men through the person of Elizabeth Barry (1658-1713).

Barry was an actress who had roles in all four of Congreve
s comedies, though by this late stage of her career she was relegated to playing older parts. For our purposes, what matters is that Elizabeth had been the mistress of Rochester, to whom she bore a daughter. Tradition has it that Elizabeth’s inaugural appearance on the stage was a complete disaster, but that Rochester took her under his wing and coached her. She went on to become one of the most celebrated actresses of the age. She also dumped Rochester.

The first Rochesterian reference I came across in Congreve’s plays was actually not penned by Congreve himself. Rather, it was written by Thomas Southerne in some commendatory verses prefixed to Congreve’s The Old Batchelour (1693):

     She yields, she yields, surrenders all her Charms,
     Do you but force her gently to your arms
     (“To Mr. Congreve”, ll. 14-15)


Aside from its rapiness, it is also reminiscent of Rochester’s lines:

     Shee yields, she yields, Pale Envy said Amen
     The first of woemen to the Last of men.
     (“Sab: Lost”, ll. 1-2)


In the same play, Belinda admonishes Araminta (Act II, scene ii):


"Oh, you have raved, talked idly, and all in Commendation of that filthy, awkard, two leg’d Creature, Man."

In sentiment and phrasing it brings to mind the opening lines to Rochester’s “A Satire against Mankind”:
 

     Were I (who to my cost already am
     One of those strange prodigious Creatures Man)
     A Spirit free, to choose for my own Share,
     What Case of Flesh, and Blood, I pleas’d to weare,
     I’d be a Dog, a Monkey, or a Bear,
     Or any thing but that vain Animal,
     Who is so proud of being rational.


In Love for Love (1695), the free-speaking Scandal gives his opinion of women’s virtue (Act III, scene i):


"Yes, Faith. I believe some Women are Virtuous too; but ‘tis as I believe some Men are Valiant, thro’ fear."

The line illustrates a very prominent notion in Restoration libertinism, namely that it is our very vices that underpin and motivate our supposed “virtues”. It is the received depth psychology of Restoration moral cynicism, made popular and borrowed wholesale from Rochefoucauld. The idea that valor is at bottom sublimated cowardice appears several times in Rochefoucauld’s work, as in the following instance:

"Perfect Valour and perfect Cowardice are Extremes Men seldom arrive at…. Some are not at all Times equally exempt from Fear: Others give occasionally into general Panics: Others advance to the Charge because they dare not stay in their Posts."

However, when Congreve has Scandal say that some men are valiant through fear, he more likely has Rochester in mind, who in the same “Satire against Mankind” (ll. 158-159) famously wrote:

     For all Men, wou’d be Cowards if they durst:
     And honesty’s against all common Sense.


It was a well-known line, and also appears in Lord Shaftesbury’s Characteristicks of Men, Manners, Opinions, Times (1711), Vol. I, p. 119:

"And all Men (says a witty Poet) wou’d be Cowards if they durst."

Congreve’s last and most well-known comedy, The Way of the World (1700), is the only one to appear after Jeremy Collier’s attack. Indeed there are a couple of half-hearted jabs at Collier and his ilk, to little effect. After this play, Congreve gave up writing plays. Although not strictly true, it is tempting to consider The Way of the World as the last Restoration comedy. In any case, at one point (Act IV, scene i), Millimant is walking around, distractedly reciting lines to herself from the Cavalier poet, Sir John Suckling. The scattered lines she repeats here and there, taken out of context, can clearly be given a sexual meaning:

     prithee spare me gentle Boy,
     Press me no more for that slight Toy.


and

     I swear it will not do its part,
     Though thou do’st thine, employ’st the Power and Art.


After these last two lines, Millimant interrupts herself:

     Natural, easy Suckling!

It is a paraphrase of a line from Rochester’s “Timon, A Satyr” (ll. 108-108):

     Falkland, she prais’d, and Sucklings, easie Pen
     And seem’d to taste their former parts again.


Here the sexual meaning is less subtle: “suckling” of “pens” and “tasting” of “parts”. It is typical of Rochester, whose mind dwelled in a universe almost metaphysically constituted by sex, where even the trees in St. James’ Park “fuck’d the very Skies”.

The metaphysics of the post-Collier theatrical universe would be structured more politely.


Bibliography

CONGREVE, William. The Comedies of William Congreve. Anthony G. Henderson (ed.). Cambridge: Cambridge University Press, 1982.

ROCHEFOUCAULD, François, Duc de La. Moral Maxims by the Duke de la Roche Foucault. Translated from the French. With Notes. London: A. Millar, 1749.

ROCHESTER, John Wilmot, Earl of. The Poems of John Wilmot, Earl of Rochester. Keith Walker (ed.). Oxford: Basil Blackwell, 1984.

SHAFTESBURY, Anthony Ashley-Cooper, 3rd Earl of. Characteristicks of Men, Manners, Opinions, Times (3 vols.). Douglas Den Uyl (ed.). Indianapolis: Liberty Fund, 2001.


Thursday, October 31, 2019

Pity Poor Rolland

Back on March 23, 2017 I posted – in installments – a paper I had written for the Richard III Society of Canada on English law in the time of that maligned King, who, for the record, even some of his greatest detractors admitted made good laws. Early on in that paper I had written about the feudal practice of holding lands by various kinds of service to one’s lord, some of these services being considered free, and some unfree:

"All of these kinds of tenure by service — knight service, scutage, serjeanty, socage — were considered free (as opposed to base) tenures, meaning that it was a freehold and you were a freeholder. What made these various kinds of tenure free? Key to the idea was that the services or money owed were certain. Even poor Rolland, a tenant in Suffolk who 'was obliged upon Christmas Day to make a leap, a whistle and a fart coram domino rege' was a freeholder, insofar as his rather embarrassing service was at least spelled out and rendered at a stated time. Outside of Christmas Day, his time and labour were his own.”

Rolland’s service was eventually commuted to a money payment.

I had come across the case of Rolland in A. W. B. Simpson’s An Introduction to the History of the Land Law, p. 6. What Simpson’s source was, I had no idea at that time. However, either Rolland’s peculiar service was not unique in Suffolk, or else the tenant’s name changed in various retellings, for I came across a very similar anecdote in William Camden’s Remains concerning Britain (1605), p. 144: “Baldwin le Pettour [‘the Farter’], who had his name and held his land in Suffolk, Per saltum, sufflum et pettum, sive bumbulum, for dancing, pout-puffing, and doing that before the King of England in Christmas holy days, which the word pet signifieth in French.”

Was Suffolk renowned among counties for producing top-notch royal flatulists, or were Rolland and Baldwin the same person? And if the same, which name is correct? (And one wonders whether in the original source of the tale there is not also some mild onomatopoetic punning intended on ‘Suffolk’ and ‘sufflum’?)

Not surprisingly, they are the same person; Camden simply seems to have misremembered the Christian name (though he got Rolland’s unfortunate surname right). And the source of the tale is an entry in the Liber Feodorum (“Book of Fees”), a 1302 compilation of Exchequer entries of tenants-in-chief of the King. The entry in question runs thus (p. 1174):

Seriantia que quondam fuit Rollandi le Pettour in Hemingeston in comitatu Suff', pro qua debuit facere die Natali Domini singulis annis coram domino rege unum saltum et sifflettum et unum bumbulum, que alienata fuit per particulas subscriptas.

“The following (lands), which formerly were held of Rolland the Farter in Hemingston in the county of Suffolk, for which he was obliged to perform every year on the birthday of our Lord before his master the king, one jump, one whistle, and one fart, were alienated in accordance with these specific requirements.”


This service was perhaps less humiliating than it might sound, since after all, he performed it by royal command of his Majesty the King, and it was well-remunerated: 30 acres of land. Cheap rent, when you consider it. And — wait for it, folks — I learned that Rolland even has his own Wikipedia page. So, an independent fortune that gave him freeman’s status, a modicum of fame down through the ages… which of us wouldn’t break wind on command for that? But alas, not all of us have been blessed with Rolland's peculiar talent.

Bibliography

CAMDEN, William. Remains concerning Britain. Thomas Moule (ed.). London: John Russell Smith, 1870.

LYTE, H. C. M. (ed.). Liber Feodorum. The Book of Fees, Commonly Called Testa de Nevill: Part 2, A.D. 1242-1293. London: His Majesty’s Stationery Office, 1923.

SIMPSON, A. W. B. An Introduction to the History of the Land Law. Oxford: Oxford University Press, 1961.

Wednesday, April 10, 2019

The Birth of the Entail

My current reading has been delving rather (too) deeply into two main areas: Parliamentary law and English legal history. This post deals with aspects of the latter. If you are already an expert in this area and find my posts amateur performances, I apologize. I am an enthusiast, not an expert, so this isn’t aimed at you.

Let us begin our story in 1284, with a legal dispute between Hugh Deen and Simon of Londonthorpe. Hugh’s father William, had given a gift of land in Grantham to Alan of Winwell and his wife Cecily (in Baker’s version; Brand’s version has her name as Avice). Although it is not very clear in the records, Cecily was probably William’s daughter. William Deen’s gift was conditional: the land was given to Alan and Cecily Winwell and to the heirs begotten of their bodies. Upon failure of such issue, the land was to revert to William or his heir.

In law, this sort of gift, usually to help a newly married couple set up in life, was called a maritagium, a marriage gift. Typically, in making such a gift to his daughter, the donor’s intent was to provide for her and her offspring from the marriage; it was also his intent that the land not end up being inherited by strangers who were not of his blood. Hence, upon failure of issue, the gift would revert to the donor or his heirs instead of passing to the daughter's spouse and possibly his offspring from a subsequent marriage, or else alienated by him. Also, if he had simply given a gift of lands to her unconditionally, by law, as a married woman (or "femme covert") the land would have become alienable by the husband. Making the gift conditional was supposed to keep this from happening

In the law of the time, if the wife died before the husband, and they had issue at some point (even if the issue did not survive them), the husband was entitled to retain possession of whatever lands belonged to his wife in fee for the remainder of his life, before it passed to her heirs. This was called the right of curtesy. Here is Fleta on this point (Bk. III, c. 11):


“And although mention may be made in a gift that the land is given to such-and-such a man in marriage with such-and-such a woman, the property given is, however, the freehold of the wife’s and not the husband’s, since he has nothing but the custody of it, with his wife, until the freehold [in this case, a life estate] accrues to him by the curtesy of England.”

He could not alienate it, nor could his children from a subsequent marriage inherit it. There was however, some question as to whether the lands held by the wife through such a gift were held in fee. It’s an important question from her husband’s point of view: if they were seised in fee (i.e. owned outright), he could hold them for life by right of curtesy after her death. If, however, the wife was not seised in fee of the gifted lands, then after her death they would revert to the donor. Fleta seems to imply that the former is the case; the wife is seised of gifted lands in fee, having at least a life estate that will pass to her heirs, and so the widowed husband may continue to hold by curtesy. There seems to have been, however, some disagreement on this, at least prior to 1285.

To return to Deen v. Londonthorpe (1284). At their deaths, Alan and Cecily Winwell had no living issue, and the land passed to whoever was Cecily’s next legal heir. To cut a long story short, it ended up in the hands of Simon of Londonthorpe and his wife Isobel. As the heir of William Deen, the donor, Hugh Deen, sued them on a writ of formedon, specifically, formedon in the reverter. This was a legal action brought by a donor or his heirs for the return (reversion) of a gift upon failure of some condition of that gift, for instance, failure of issue or alienation against the intent of the donor.

(The term “formedon” comes from Old French forme don, from the Latin forma dona, “form of the gift”.)

According to Hugh, the form of his father’s gift required the land to revert to him or his heir (i.e. Hugh himself) should the Winwells die without issue. However, the wording here is ambiguous. Does “die without issue” have the narrow sense of “have no issue alive at the time of death”, or the broader sense of “never had issue”? There is no disputing that if Alan and Cecily had issue living at their deaths, that issue would inherit. The question is, what happens in the case where the Winwells outlived their children?

Simon’s lawyers, Pageman and Arnisby, argued that, contrary to the wording of the plaintiff’s writ, the Winwells did at some point have a son and a daughter, and therefore had issue. The writ therefore is premised on a factual mistake and should be void. They also argued that the issue having died before their parents is irrelevant because, supposing a point in time when the issue were still alive, at that time, Alan and Cecily would have had issue of their bodies living and therefore could have lawfully alienated the lands. In other words, at that point in time they had gained a freehold by fulfilling the condition of the gift, and this freehold staid with them after their children were dead.

Regarding the first part of this defense, that the plaintiff’s writ of formedon made the false claim that Alan and Cecily did not have hairs of heir bodies, the judge shoots this down:


“SAHAM. The writ says that they died without heirs begotten of their bodies, and does not say that they had no heir of their bodies (as your argument supposes).”

In other words, Saham, J read the writ as making the narrower claim that Alan and Cecily did not have heirs of their bodies at the time they died, which is presumed to be factually correct. Therefore, on this count, the writ is valid.

At this point, Deen’s lawyer, Fishburn, makes the following argument: Neither of the Winwell's children, while their parents were alive, could claim the inheritance. Therefore, the children were never heirs, and could only have become so at the moment they survived their parents, which never happened. During their lives, the children had no title to pass on. Therefore, contra the terms of the original gift, Alan and Cecily failed to have heirs begotten of their bodies. Therefore, the gift ought to revert to the donor’s heir, Hugh Deen.

It is here that the judge interjects with the following terse and enigmatic remark:


“SAHAM. Say something else.”

It is not immediately clear to whom he is speaking. If to Fishburn, it is equally unclear whether he’s speaking approvingly or disapprovingly. In other words, he could either be reacting to Fishburn’s argument with either (i)  “Interesting… go on, I’m listening” or (ii) “Terrible argument. Hopefully you have something better.”

However, Brand’s translation of Saham’s remark is “Answer over” (respondeat ouster, “let him make further answer”), thus implying that he is actually speaking to Simon’s lawyers, requiring them to offer something in response to Fishburn’s argument.

And it is here that Pageman, for the defendant, responds with his trump card. It turns out, you see, that Alan and Cecily did have a daughter named Alice who outlived them and took up the inheritance, alienating a part of it (to Simon?). Judgment for the defendant.

It was rather a neat ending, at least for for the defense, but unfortunately for us, it lacks resolution of a core issue. If it had instead been the case that Alan and Cecily lacked living heirs begotten of their bodies at their deaths, we would like to know which of the following two positions justice Saham would have favoured:

1.    Alan and Cecily had no heirs of their bodies begotten. Therefore, by the form of the gift, the land reverts to the donor, or to his heir Hugh Deen. Neither Alan nor Cecily could alienate the land, and any such alienation (e.g. to Simon of Londonthorpe) was unlawful. Nor can Alan continue to inhabit the lands by curtesy should Cecily outlive him, because the latter was not seised in fee (though this latter point is disputable).

2.    Alan and Cecily had children who all died before them. At some point though, while the children were alive, Alan and Cecily did have heirs begotten of their bodies, and therefore they had satisfied the condition of the gift, thereby gaining a freehold. The gift was complete. The donor and his heirs no longer had a right of reversion, and Alan and Cecily could alienate the land as they saw fit, or else it would pass to whoever ended up being Cecily’s lawful heir. Meanwhile, if Cecily died before Alan, Alan could continue to hold the land by curtesy until he died.

From the record, it seems like, up until Simon’s lawyer played his trump card, justice Saham was perhaps leaning towards the first position. However, for whatever reason, the tendency up to the time of this case in 1284 was that courts were increasingly leaning toward the second position. They were more often favouring an (over)literal interpretation that seemed to ignore what was thought to be the clear intention of the donor and the form of the gift itself. People who wished to make such conditional marriage gifts were rightly becoming hesitant to do so, because there was no guarantee their wishes would be observed by the courts.

It was felt that legislation was required. This came in 1285, in the form of c. 1 of the Statute of Westminster II, called De Donis Conditionalibus (“Of Conditional Gifts”). It enacted that the donees cannot alienate the gift, regardless of whether they have issue, or whether or not said issue survives them. It explicitly made the first position, above, the law of the land, protecting both the intentions of the donor and the interests of the donee’s descendants. If issue survives, issue inherits, by the form of the gift. If not, it reverts to the donor or his heirs, again by the form of the gift. Naturally, this implies the need for two different writs of formedon (“form of the gift”).

Remember, before De Donis there was already a writ of formedon in the reverter, which Hugh Deen used in his attempt to recover the reversion of the gift to the donor. Now, in addition, De Donis also offered a writ of formedon in the descender specifically for descendants of donees to recover alienated lands. As long as descendants had an action of formedon against the donees, the donees were prevented from alienating, and could have at most a life estate. This was essentially the birth of the entailed estate — which underpinned the first season of Downton Abbey.

However, it became settled law that such a conditional gift could only bind for three generations of descent before it would be inherited in fee simple.


And incidentally, justice William de Saham's career ended in 1290 when he was convicted of judicial misconduct.

Postscript

The author of Fleta, writing in the 1290s, seems to contradict himself on the subject of De Donis. Of the statute, he writes (Bk. II, c. 9),


“If a gift should be made to someone, with his wife, ‘to have and to hold, to him and the heirs whom they lawfully beget between them’, it follows that the donor wishes such heirs to succeed as are within [both] paternal and maternal inheritance, to the entire exclusion to their other heirs more remote. And that the intention of the donor should be observed appears clearly by this statute.”

All fine. However, in a passage only a few paragraphs further down, the author writes that in making a gift,


“if you say thus, ‘I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, if you shall have heirs of your body’, and if I should beget such heirs, even though they should fail, nevertheless other heirs of mine, however remote, will succeed me ad infinitum, because the condition has been satisfied. But before they are begotten the property given to me will be simply a freehold [i.e. a life estate] and after my death it will revert to you as the donor…”

The former passage reflects the post-De Donis position favouring Hugh Deen, while the latter passage seems to be a relic of the pre-De Donis period, favouring Simon of Londonthorpe. How do we reconcile this contradiction?

It is possible that the author of Fleta slipped up. The work is a sort of crib and commentary on an earlier author, Bracton, and so after correctly stating the post-De Donis law, perhaps he accidentally left in the contradicting passage from Bracton that states the earlier law.

The context of the passage is this: Fleta/Bracton was making a point about the formal language of the conditional gift. If the gift says (i) “I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, so that [ut] you shall have heirs of your body”, the gift passes an absolute estate to the donee without condition. Whereas, if the gift says (ii) “I give such-and-such an amount of land with appurtanances to have and to hold to you and your heirs, if [si] you shall have heirs of your body”, the “if” represents a condition, which as soon as met, passes the estate to the donee. It does shed a little light on the seemingly counterintuitive pre-De Donis interpretation of  the conditional gift.

Bibliography

ANONYMOUS. Fleta (Vol. III: Book III and Book IV). London: H. G. Richardson and G. O. Sayles (trans.). London: Selden Society, 1972, pp. 14-15, 20.

BAKER, Sir John. Sources of English Legal History: Private Law to 1750 (2nd edition). Oxford: Oxford University Press, 2010, pp. 47-48.

BRAND, Paul (ed.). Earliest English Law Reports, Vol. III: Eyre Reports to 1285. London: Selden Society, 2005, p. 110.