If ... one managed to change the curriculum in all the schools so that [Afro-Americans] learned more about themselves and their real contributions to this culture, you would be liberating not only [Afro-Americans], you’d be liberating white people who know nothing about their own history. And the reason is that if you are compelled to lie about one aspect of anybody’s history, you must lie about it all. If you have to lie about my real role here, if you have to pretend that I hoed all that cotton just because I loved you, then you have done something to yourself. You are mad.10
Most law syllabuses, no matter how doctrinally based, will include some his-torical background to current legal doctrines. ‘Background’ is the key word here, as history is usually taught to highlight the present rather than explain the past.11One result is that the history is often superficially taught insofar as con-tradiction and conflicts are too easily smoothed over in order to provide a
‘programme of interpretation’ for current doctrines in the light of historical processes which are perceived as developing in a linear direction toward an assumed goal.12Further, the challenge posed by a critical multiculturalism is to produce an inclusive history that is sensitive to questions of racialised identities but also to whiteness as a mark of racial and gender privilege: ‘For Baldwin’, glosses Henry Giroux, ‘multiculturalism is primarily about whiteness and its
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10 James Baldwin cited in Giroux, H, ‘Insurgent Multiculturalism and the Promise of Pedagogy’ in Goldberg, D (ed), Multiculturalism: A Critical Reader, 1994, pp 325, 326 –27, Boston: Blackwell.
11 Anderson, S, ‘Explaining Land Law’ (1982) 45 Modern Law Review346, 347.
12 Anderson, S, ‘Land Law Texts and the Explanation of 1925’ [1984] Current Legal Problems63.
claims to self-definition that excludes the messy relations of race, ethnicity, power and identity’.13
In equity, history seems to acquire a special saliency. Ask an equity lawyer or teacher ‘what is equity?’ and the answer will usually be that it is the body of law administered by the Court of Chancery from the Middle Ages to 1875.
Likewise, the trust will be explained as growing out of the use, a tool to avoid death duties and so on. And the issue of equity’s historical legacy will cause textbook writers much heartburn concerning the ‘fusion fallacy’.14Yet alterna-tives to the prevailing ‘evolutionary functionalism’15exist in the legal literature and should be better utilised by teachers. Here, we briefly explore ‘revisionist’
scholarship in two areas of trust history: gender cleavage in the historical devel-opment of the trust, and religious discrimination in the law of charitable trusts.
Yet exploration of the racial economies of privilege and power in history of law scholarship is still underdeveloped. Here, the teacher needs to proceed some-what laterally, and to be open to voices and perspectives that go beyond the boundaries of the law library. One such example, relating to unconscionability and anti-Semitism, we look at below.
(a) The development of the trust
Conventional histories of the trust locate its origins in the development of the ‘use’.16According to this account, the value of the use lay in its being an effective substitute for testamentary disposition (as it allowed land to be devised to descendants other than the eldest son), a useful tool in avoiding feudal burdens17and a method of allowing grants to religious bodies. Neave et al cite William Frencher as to uses allowing landowners ‘to make decent provi-sion for their wives, daughters and younger sons’ and to ‘protect themselves and their families against the gross injustices of a system of land law which was centuries out of date’.18
Yet this focus on the ‘gross injustices’ of strict primogeniture erases from history the heiress-at-law. That is, if there were no son, land descended to daughters, not to nephews, uncles or male cousins. If there were several daugh-ters, they were equally heirs.19 Using statistical modelling, historian Eileen
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13 Giroux, above n 9, 327.
14 See Meagher, RP, Gummow, WMC, Lehane, JRF, Equity: Doctrines and Remedies, 3rd edn, 1992, Sydney: Butterworths.
15 See Anderson, above n 12.
16 See, for example, Neave, MA, Rossiter, CJ, Stone, MA, Property Law: Cases and Materials, 5th edn, 1994, p 222ff, Sydney: Butterworths.
17 Ibid, 224.
18 Ibid, 225, citing Frencher, ‘Uses of Uses’ (1969) 34 Missouri Law Review39, 45.
19 Spring, E, ‘The Heiress-at-Law: English Real Property Law from a New Point of View’
(1990) 8 (2) Law and History Review273, 274.
Spring argues that in 13th century England, these common law provisions were not insignificant in impact:20
[D]espite the well-known generalisation that the common law sent estates to eldest sons, when examined it is found that in the norm of a stationary popula-tion, the common law would send 25% of estates to women. Since by equal division 50% of estates would go to women, the common law cut female inheri-tance in half, but only in half. Moreover, 42% of women would at common law be heiresses, though many of the heiresses would be required to divide estates.
Fully 33% of women would be directly heirs of their fathers. In pre-industrial times, the heiress was no rare bird by common law rules.
In contrast, Spring looks at figures detailing inheritances between the 16th and 18th centuries to discover that an average 8% went to women, and 92% to men.
She concludes:21
In short, the history of the heiress is of a great downward slide. From once succeeding according to common law rules, she came to succeed as seldom as possible. With the strict settlement of the 18th century she reached her nadir ...
English landowners had moved from lineal to patrilineal principles.
The conventional account of the development of the use or trust as a struggle against common law rules of inheritance ignores the gendered nature of that struggle:22
Through uses landowners are portrayed as providing for their families. What needs to be stressed is that providing for their families according to their wishes meant two things: better provision for younger children than what the common law afforded, and worse provision for the heiress.
Likewise, the Statute of Wills, which gave a large power of testamentary disposition, signalled ‘the victory of younger children. By the same token, it signals the defeat of the heiress’.23
(b) Charities
To be considered ‘charitable’ at law, a trust must be for the benefit of the public; that is, for ‘public’ not ‘private’ purposes. In the Statute of Uses 1601, no specific mention was made of trusts for religious purposes (except for the repair of churches, inserted between the repair of causeways and seabanks). Yet it would be wrong, argues Michael Blakeney, to think that the 1601 legislation
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20 Ibid, 276.
21 Ibid, 280.
22 Ibid, 289.
23 Ibid, 290.
was devoid of religious inspiration.24Rather, its emphasis on the demonstrable public benefit of bequests mirrored the emphasis placed by Protestant preach-ers after the Reformation on poor relief and the duty to perform ‘good works’
for those seeking salvation. This religious injunction had been in opposition to the cloistered life of Roman Catholic monasteries where prayers were offered for the ‘spiritual needs’ of the population. Even when laws explicitly prohibit-ing bequests for Roman Catholic or Jewish religious purposes were revoked in the mid-19th century, the requirement that religious charities confer a demon-strable benefit on the public reflects this Protestant view that religious activities should have utilitarian ends.25 Thus, as late as 1949, judges distinguished between benefits conferred on the public through human agency and those conferred by divine or supernatural means to strike down a bequest to an order of contemplative nuns.26 Concludes Blakeney, ‘The insistence upon “works” is a Protestant precept, as is the insistence that the utility of religious works be demonstrable. Yet each of the judges insisted that the law was not concerned with the truth or otherwise of religious beliefs.’27
(c) Race, class and unconscionability
... this system of undermining and blasting, as it were, in the bud the fortunes of families is a public as well as a private mischief; a sort of indirect fraud on the heads of families ... who may thereby be induced to dispose of their means for the profit and advantage of strangers and usurers ...28
This quote, from a case often cited to illustrate the foundations of equity’s inter-vention in unconscientious dealing in so-called ‘catching bargains’, is the kind that should set the inquisitive equity teacher thinking. Why that disapproving reference to ‘strangers and usurers’ at a time (the 19th century) when freedom of contract was at its height, when ideally everyone should contract at arms length, that is, as strangers? A colleague teaching in equity and familiar with the race politics of 19th century England saw ‘usurers’ as a coded reference to Jews, which indicates ‘strangers’ may be referring to aliens, but to start to unpack this reference we had to go not to legal scholars but to economic historians and scholars of literary studies.
The doctrine of unconscionability has its origins in a set of class- and nation-based anxieties going back to 16th century England. The doctrine attached itself to the case of the expectant heir or reversioner who was in urgent need of cash
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24 Blakeney, M, ‘Sequestered Piety and Charity: a Comparative Analysis’ (1981) 2 Journal of Legal History207.
25 Ibid, 213.
26 Gilmour v Coates[1949] AC 441, cited ibid.
27 Ibid, 216. For an update that suggests recent English cases no longer exhibit such bias, see Rickett, CEF, ‘An Anti-Roman Catholic Bias In the Law of Charity?’ (1990) Conveyancer and Property Lawyer34.
28 Earl of Aylesford v Morris[1861–73] All ER Rep 300, 303, perLord Selborne LC.
to maintain ‘gentlemanly extravagance’ but was precluded from borrowing at moderate rates by the uncertainty of his prospects,29and so was forced to turn to lenders who extended credit on the expectation of his inheritance. The courts felt, as in the case of Earl of Aylesford v Morris, such dealings to be uncon-scionable as they traded ‘on the follies and vices of unprotected youth, inexperience, and moral imbecility’.
The economic environment of early modern England offers some explana-tion of this felt need to protect an improvident aristocracy.30The Tudor period saw the rise of a merchant class rapidly amassing fortunes made in trade. The resulting rising prices depressed the landed gentry who were forced to borrow to maintain their levels of luxurious consumption. But, ‘since only merchants could keep the landowners afloat, what happened was that land was trans-ferred from the dying feudal nobility and old-fashioned squires to the commercial middle class’.31The anxiety this gave rise to is clearly expressed in early judgments, where, observes Dawson, ‘the motive was clear – to preserve for a dominant class the economic resources on which its prestige and power depended’.32It was ‘the policy of the nation to prevent what was a growing mischief to ancient families’33and courts would ‘not allow the heir of a family of rank to be reduced to poverty and distress by dealing with his expectancies’.34 The best-known popular culture manifestation of this anxiety over usury is Shakespeare’s The Merchant of Venice, where the action is transferred to Venice and the moneylender is made a Jew. Writing in 1945, in an essay generally con-cerned with absolving Shakespeare of charges of anti-Semitism, EC Pettet makes the comment:35
[F]or a play treating of usury a Jew had two particular points of significance: in the first place, Jews were certainly prominent in this business abroad, and in the second, it is possible that Shylock symbolises the feeling, shared by Shakespeare, that usury is something alien to the national and traditional way of life. Wilson’s preacher may offer us a pointer here when he asks: ‘What is the matter that Jews are so commonly hated wheresoever they come. Forsooth, usury is one of the chief causes, for they rob all men they deal with, and undo them in the end. And for this they are hated in England.’
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29 Dawson, J, ‘Economic Duress: An Essay in Perspective’ (1947) 45 Michigan Law Review 253, 268.
30 See Tawney, RH, ‘Introduction’ in Thomas Wilson, A Discourse Upon Usury, 1962, London:
Cass.
31 Ibid, 41.
32 Dawson, above n 29, 268.
33 Cole v Gibbons(1734) 3 P Williams 290, 293, cited ibid, 268.
34 Earl of Portmore v Taylor(1831) 4 Sim 182, 213, cited ibid, 268. Dawson draws attention to ‘the snobbery with which these cases reek’, citing the judgment in Portmore: ‘The mere fact that Lord Portmore was not only the heir apparent of his father, but also the expectant heir to a peerage, also brings the case distinctly within the rule laid down by this court ...’
35 Pettet, EC ‘The Merchant of Veniceand the Problem of Usury’ (1945) 31 Essays and Studies by Members of the English Association19, 25–26. The reference is to Wilson, above n 28.
James Shapiro’s recent Shakespeare and the Jewsindicates that Shakespeare’s play represents only the tip of the iceberg in this respect, the elision of anti-usury sentiment and anti-Semitism being a staple of 16th century debates.36Shapiro indicates that after usury itself became legal in England in 1571, and individuals were permitted to obtain 10% interest on loans, ‘Jews were increasingly identi-fied not with usury per se, but with outrageous and exploitative lending for profit’.37Likewise, the Oxford English Dictionary cites the word ‘Jew’ as applying to a ‘grasping or extortionate moneylender or usurer’, and ‘Shylock’ as an allu-sion to ‘an extortionate usurer’, descriptors which remained current through the 17th and 18th centuries thanks to the popularity of performances of Shakespeare’s play.38If we think of 19th century England as a time of rampant economic individualism in contract law that has only recently been superseded by a new commercial morality, case law references such as Lord Selborne’s to
‘strangers and usurers’ make little sense until we have regard to the racial dynamics also operating in society at the time.
Dawson argues that when courts began to enunciate the broader grounds on which the expectant heir cases were founded, it ‘had implications extending far beyond the immediate problem’.39The very vagueness of chancery doctrines concerning impaired bargaining power and unconscientious dealing, suggests Dawson, helped their extension to related situations where the transaction involved anyone who was physically or mentally weak.40The outcome, then, of such class- and race-refracted doctrines, was ironically a jurisprudence that in Australia in the 1980s intervened on behalf of elderly Italian migrants in Commercial Bank of Australia v Amadio.
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36 Shapiro, J, Shakespeare and the Jews, 1996, pp 98–100, New York: Columbia University Press.
Shapiro observes, p 1, that while ‘there were not many Jews in early modern England, it was nonetheless a society surprisingly preoccupied with Jewish questions ... It needs to be said at the outset that the English turned to Jewish questions in order to answer English ones ...
[T]heir interest in Jews provides an unusual insight into the cultural anxieties felt by English men and women at a time when their nation was experiencing extraordinary social, reli-gious, and political turbulence’. Shapiro’s comment bears out Colin Holmes’ observation:
‘It is possible for anti-Semitic ideas to exist among individuals and in societies where Jews are not present’: Holmes, C, Anti-Semitism in British Society 1876–1939, 1979, p 2, London:
Edward Arnold.
37 Ibid, 99.
38 See Felsenstein, F, Anti-Semitic Stereotypes: A Paradigm of Otherness in English Popular Culture, 1660 –1830, 1995, pp 178–84, Baltimore: Johns Hopkins University Press.
39 Dawson, above n 29, 268.
40 Ibid, 272–73.