An example

I will illustrate the shortcomings of textbook accounts of property law history and how they might be addressed by focusing on their treatment of gender - a topic which, as I will later explain, could be picked up as one of several themes to be followed through in the syllabuses of both Land Law and Equity and Trusts. I have chosen gender partly because this is my personal research interest, but also because it is such an egregious instance of the partiality of most property law histories. It is no exaggeration to say that it is only by recognizing the significance of gender that one can properly understand the history of equity and the rationale for many of the devices still in use today.

Women are rarely mentioned in the historical accounts of the development of equity, but one place where they do generally make a brief appearance is in discussions of the usefulness of the trust in ameliorating the economic position of married women, as A W Scott put it (Scott, 1922, p. 457), and countless textbook authors have echoed. Such explicit reference to gender difference in the substantive law, unusual today since substantive legal differences no longer exist, used to be an automatic feature of textbook accounts of property law. Today this history will be reduced to an explanation that, before the Married Women's Property Acts, the common law vested a married woman's property in her husband, leaving her not simply in a vulnerable economic position, but practically without legal personality at all. Blackstone's famous dictum may be quoted:

By marriage, the husband and wife are one person in law; that

is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of her husband; under whose wing, protection, and cover, she performs every thing. (Blackstone, 1765, p. 441)[1]

Equity, however, enabled a man to settle a sum on his wife or daughter for her personal use after her marriage, free from interference from her husband. Marriage settlements became almost a prerequisite for marriage in the propertied classes and were accordingly protected for policy reasons. Equity's intervention is thus represented as a good thing, because it protected powerless wives from greedy husbands and gave them a measure of financial independence.[2]

The protection of wives from greedy husbands or (these days) partners is a theme our students will see returning again and again throughout the history of the equitable jurisdiction right up to Stack v Dowden [2007] and beyond. Yet here it appears out of nowhere, and is immediately dropped without further discussion. There is never any space to ponder the extraordinary common law principle that gave all a woman's property to her husband, or to consider why she needed to be protected from him. What did this say about English marriage? What did it say about English men? What did it say about the justice of the law, or whose interests it served?

Then take the strict settlement, which may rate a mention in these textbook accounts not just as an important application of the trust principle in the seventeenth and eighteenth centuries but explicitly as a means of benefiting women by enabling men to dispose of their land on death otherwise than by strict primogeniture. Once again, this is portrayed as a good thing; primogeniture (in England meaning leaving property to the eldest son) is obviously unfair to younger sons and daughters, and the trust enabled provision to be made for them too.

The historical reality was somewhat different. Twenty years ago, Eileen Spring queried the received version of legal history that held that the strict settlement both improved the financial position of daughters and showed that the eighteenth-century family had become more egalitarian and caring (as argued by, for instance, Stone, 1990). By focusing on the heiress-at-law, a person most of us never knew existed, she demonstrated that the significance of the strict settlement was that the law developed not to protect women, but for precisely the opposite reason - to do them out of their common-law entitlement (Spring, 1993, p. 9).[3]

It is well-known that land descended to the eldest son in common law, but it is less well-known that, in the absence of a son, land descended to the daughters - not just the eldest, but all of them in equal shares. Drawing on demographic evidence, Spring calculated that about one-third of landed estates should have gone to women in common law under this rule. In fact, less than ten per cent did - because the strict settlement enabled fathers to divert the property away from their daughters in favour of collateral males. So the strict settlement, far from providing a generous portion for daughters, 'aimed first and foremost at limiting the interest of the heiress-at-law'. Spring's conclusion is stark:

Clearly the history of the heiress in gentry and aristocratic families is of a great downward slide. From once succeeding according to common law rules, she came to succeed about as seldom as possible. With the strict settlement of the eighteenth century she reached her nadir ... In short, English landowners had moved from lineal to patrilineal lines. (Spring, 1993, pp. 18-19)

What this demonstrates is that the notion that the common law was always stacked against women, and that equity's interventions always served to improve their position, is wrong on both counts. In fact the process was one of common-law rights for women being undermined by masculine exploitation, in turn leading to equitable protection followed by backlash, as those who controlled law-making manipulated both law and equity to serve reforming and reactionary ends. This is a process not unfamiliar to those who have studied the ebbs and tides of equitable protection for women in later generations, including our own.

Students get the impression that those women of yesteryear were relatively powerless or passive in their dealings with property, yet Tim Stretton's study of an Elizabethan court of equity reveals the extent to which they were prepared to go to court to try to protect their property rights - which, in truth, they needed to (Stretton, 1998). Maria Cioni (1985) traces the ways that women helped to develop particular forms of relief through their use of the Court of Chancery in the same period. But then Susan Staves shows how the courts misused the law to curtail and even deprive women of their entitlement to a whole range of property rights including dower, jointure, pin money and maintenance allowances (Staves, 1990). It is clear, then, that there is a lot of research out there which, while it certainly complicates the easy textbook tale, yet casts useful light on the development of the law. By including this detail at the start, we would not only make history more interesting and relevant to our students, we would better prepare them for the complexities and contradictions of equity's relationship with law in their property law studies.

An opportunity to introduce the nineteenth-century women's movement, which most students have scarcely heard of, is provided by the Married Women's Property Acts. Why do our textbooks skim over this momentous development in English legal history, which one historian has suggested 'carried through one of the greatest expropriations and reallocations of property in English history' (Holcombe, 1980, p. 27; see also Holcombe, 1983)? If mentioned at all, it will be as a reassurance to students that the gender discrimination of the common law had been done away with - the usual tale of progress - and that nothing more need be said on the subject. (And nothing will be.) In fact, as any text of the actual period would tell you (in a section entitled 'Persons under disabilities as to property' - see, for example, Strahan, 1908, p. 377), the Acts did not give married women the same rights to their property as those enjoyed by men or single women. Instead, their property was treated as if it were held under a trust; hence, married women could not bind themselves personally for their debts, which made other parties reluctant to deal with them. It goes without saying that textbooks never mention the 30 years of campaigning by Victorian feminists for a Married Women's Property Act that would actually give married women the same rights as men and single women (Auchmuty, 2008); the Acts are presented (as always) as an instance of the law reforming itself.

In my last institution we used to set a class exercise in which tutorial groups were divided into government and opposition and asked to debate, as if in an 1870s Parliament, the merits of giving married women control over their own property. Those who opposed the measure had to rehearse all the justifications for the status quo while those in favour could either promote the Bill eventually enacted (essentially a showpiece for the integration of equity into the English courts through the Judicature Acts) or argue for the feminist equal-rights position. Students prepared by reading both secondary sources and extracts from the debates in Hansard and feminist literature of the time reproduced for them in a study pack. It was good fun and unthreatening because it all happened in the past, but it gave the students an idea of how those with privileges use law to defend their position, while yet demonstrating the potential of law to respond (albeit in a half-hearted and piecemeal way) to social change and radical demands.

Of course, the Married Women's Property Acts did little to facilitate women's access to property, so that for the vast majority of women, who had no property, their effect was more symbolic than material. It was not until 1949 that the last vestiges of coverture were swept away in the Restraint on

Anticipation Act, and arguably not until Williams & Glyn's Bank v Boland [1981] - that is, more than a century after the first Married Women's Property Act - that the courts finally recognized that married women might have separate rights from their husbands in the home. If this revelation is less shocking to our students than to those of us who have lived through the changes, it should perhaps alert them to the slow acceptance of equality principles in law and the tenacity with which those with power cling to their legal privileges.

Clearly, a history of equity and land law that includes these issues is not just a history with women added but a completely different story. It is a story which should interest our students - consider the popularity of costume dramas with property law plots like Downton Abbey - and will get them started on drawing out the recurrent themes of the law's development. Most importantly, it will alert students from the outset to the pitfalls of unthinking reliance on equity's protective jurisdiction and of faith in law's evolutionary progress towards justice and equality.

  • [1] Blackstone disliked the equitable jurisdiction and so overstated married women's powerlessness. The huge authority of his Commentaries as a source of law provided the basis forwhat Mary Beard describes as the great 'fiction that women were, historically, members of asubject sex - “civilly dead," their very being suspended during marriage and their property,along with their bodies, placed under the dominion of their respective “lords" or “barons"'(Beard, 1946, pp. 84-5).
  • [2] But only a measure, since a 'restraint on anticipation' was almost always imposed on thetrust property, making it impossible for a woman to draw on the capital; she could only usethe income.
  • [3] I am grateful to O'Donnell and Johnstone (1997) for alerting me to this example.
 
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