Month: February 2022

Equity, poetry, and the case of the needy thief

Posted on by joanna.mccunn
BL Add MS 35326

I’m currently writing about a work called Epieikeia: A Dialogue on Equity in Three Parts, which was composed by Edward Hake in the late sixteenth century. Hake was a Puritan, a poet, and a local government official, who hoped that his treatise would bring him to the King’s attention and secure his advancement. If I’m honest, I first became interested in this work because it’s more than a little bizarre.

For a start, it’s written in dialogue form—as an imaginary conversation between Hake and two friends, Lovelace and Eliott. The conceit is that the three men have gathered before dinner when Eliott starts pressing Hake to explain to them the nature of equity (as you do). Hake is initially reluctant, but is soon convinced to spend three afternoons (or 140 pages) expounding his ideas.

The literary dialogue was popular in Renaissance Europe, and many writers used it to draw out a range of views and ambiguities around their topic. Hake… did not. Lovelace and Eliott are really only there to repeat his conclusions and tell him how clever he is. (Sample contribution from Eliott: ‘I acknowledge to have received both pleasure and profitt [from Hake’s discussion], pleasure in the variety of the matter, and profitt in the good end and purpose that hath byn of it. And this I must confesse, that had it not byn for this and your former speache, I sholde have remained in error…’) It’s a shame that this mode of writing has fallen out of fashion—it must be good for the self-esteem and a helpful cure for writer’s block.

(more…)

Courtesy, curtesy and houses of cards

Posted on by vifgage

In a few weeks, I will be amongst the speakers at an online launch for the collection of papers by the late David Sellar, edited by Hector MacQueen. My job is to give some thoughts about the importance of Sellar’s work and ideas, from the perspective of English legal history.[i] There is a great deal in the book which would be of relevance to this theme, but the first thing which leapt out at me, looking over the collection, was an old friend – his article on courtesy.[ii] Courtesy, or ‘tenancy by the courtesy of Scotland’ was the life interest (liferent) which a widower might acquire in land brought to a marriage by his wife, on certain conditions, and was part of Scots common law from the medieval period onwards (only finally being removed in the twentieth century). A very similar institution existed in the common law of England: ‘tenancy by the curtesy of England’. The reason this Sellar article is an ‘old friend’ is that it is something I have consulted in at least two different projects of my own. The first of these was work leading to an article on medieval English curtesy; the second a very recent project  – a chapter on intractable factual uncertainty in the early stages of life, for a collection on intractable factual uncertainty more generally. Sellar’s article was very useful for both of these. I think that it also has implications for the way in which those working on English legal history conduct their research.

The central focus of the article is a particular dispute at the highest levels of fourteenth-century Scots society, and, as one would expect from an expert on the genealogy and heraldry of Scotland, we get a good account of the characters involved.  The opposing parties were James Douglas and Thomas Erskine. James Douglas (JD), one of the many holders of that name who crop up in the history of Scotland, would later be known as Sir James Douglas of Dalkeith. He was nephew and heir-male of William Douglas of Liddesdale (WD: there are quite a few William Douglases to deal with as well, our William was killed by another William Douglas, one who would later be first earl of Douglas). The fact that JD was heir-male meant that on WD’s death, he acquired the lands which were limited to the male line. The other lands went to WD’s daughter, Mary. Mary’s marital history is quite interesting (there was an annulment in there) but the key fact for these purposes is that she was married to Thomas Erskine (TE), at some point before 1367. Mary died giving birth to their child, and the child – to put it neutrally – did not survive. JD was Mary’s nearest heir (and if this took full effect, he would ‘scoop the pool’, taking all of the land previously held by WD. TE, however, had different ideas.

(more…)