Category Archives: General Rambles

Reformation Disputation

This scurrilous nonsense was, apparently, found stuck to the door of some church in Germany …

 

Martin L. (the Augustinian Brother who could Do No Other)

 

A Diet of Worms caused constipation

till his guts experienced  Reformation.

He objected to indulgences but still grew stout;

shacked up with a nun, chucked celibacy out;

wrote hot hit hymns, and cool translations

and tied himself in knots over consubstantiation.

His views on Jews can’t be overcome:

he had 95 theses: but tolerance definitely wasn’t one.

 

 

Recent reads September 2017

It is a big task to keep on top of emerging scholarship in Legal History, especially when it’s outside my ‘research period’, but it’s important to try (for teaching and SLS convening, as well as for the avoidance of disappearing in a puff of over-specialisation) so here’s what I’ve been looking at most recently:

  1. The AJLH goes all out for spousal murder

Not one but two articles in this area in the latest edition:

Andrea McKenzie, ‘His Barbarous Usages’, Her ‘Evil Tongue’: Character and Class in Trials for Spouse Murder at the Old Bailey, 1674-1790’,  American Journal of Legal History, 2017, 57, 354–384. Very interesting and well-argued treatment of changes and continuities in conviction rate, defences and sympathies. [On a trivial note: striking numbers of knife-throwing homicides, and mercifully brief reference to the (IMO) appalling epistolary novel, Pamela.]

 Ian C. Pilarczyk, ‘Acts of the “Most Sanguinary Rage”: Spousal Murder in Montreal, 1825-1850’, American Journal of Legal History, 2017, 57, 316–353. As a complete novice in relation to Canadian LH, this was 100% profit for me. Some great (in the sense of terrible) cases here and interesting to see issues of extreme domestic violence in a different social milieu. Lots of alcohol, fewer guns than I might have thought, and some all-too-familiar narratives of domestic horror.

  1. The JLH gets emotional

I was a bit stunned to see that the usually rather conservative Journal of Legal History has,  in 2017’s Vol. 38 no. 2,  embraced the very cutting-edge area of history of emotions. Still getting over it – comments will follow shortly. …

Merridee L. Bailey & Kimberley-Joy Knight (2017) Writing Histories of Law and Emotion, The Journal of Legal History, 38:2, 117-129. This one introduces the area – not necessarily one which would be familiar to JLH readers. It argues for an ‘emotional turn’ in historical study (I have to confess to bridling a bit at ‘turns’ – clearly need to work on that), and gives a clear account of the difficulties and possibilities in the field.

John Hudson (2017) Emotions in the Early Common Law (c. 1166–1215), The Journal of Legal History, 38:2, 130-154, Drawing on decades of detailed study of this period, Hudson considers the inclusion and exclusion of emotion in the treatises and records of the Angevin-era common law. We see mention of fear, affection, anger and spite, amongst other emotions, but also indications that law could be responding to the disruptive power of emotions, and those administering it might consider it appropriate to exclude emotion from legal proceedings, in order to achieve fairness and rationality. I am sure I will be making use of this in my own medieval research, and it has certainly started a few musings about intersections with gender, and contemporary ideas about gender.

Amy Milka & David Lemmings (2017) Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom, The Journal of Legal History, 38:2, 155-178. This article looks at the complicated relationship between the well-known ‘majesty of the law’ idea in relation to criminal justice, and display/use/suppression of emotions on the parts of different ‘players’ in the drama, dealing with cross-currents of rising ‘sensibility’, changing role of the press and changes in legal representation. It is an extremely convincing and thoughtful piece, and managed entirely to overcome my usual emotional response to things about the 18th C [urghhh – sensibility ….]. Going on the UG reading list.

Alecia Simmonds (2017) ‘She Felt Strongly the Injury to Her Affections’: Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia, The Journal of Legal History, 38:2, 179-202, Breach of promise of marriage is a much-ridiculed area of legal intervention, and yet a wonderful way of getting at ideas of gender and damage which prevailed at any given period. Early 20th C Australia is pretty unfamiliar to me, but this was very instructive. Made its argument well. Also well worth a look for its wider relevance to ideas of appropriate compensation for different sorts of damage – and historical contingency of legal attitude to different categories of harm. [And for some charming statements on the veracity of women, hauntingly reminiscent of Hale’s words on rape and witchcraft, see p. 184].

Katie Barclay (2017) Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland, The Journal of Legal History, 38:2, 203-227, And we’re back to spouse-killing. Clearly one of the topics of 2017. Illustrates well the important but complicated role of emotions (and their suppression/absence) in the 19th C homicide trial. Given contemporary understanding of gender, emotion, psychology and the murder/manslaughter boundary, there were clearly some real tactical conundrums in the conduct of such cases.

Overall emotion at the end of this? (See how I am getting into the swing of this?) Happiness! It strikes me as a very healthy sign that this sort of scholarship is being displayed in the JLH. Glad to see a very established figure in UK legal history contributing to this special edition, and to learn what a talented and interesting set of scholars has been gathered around the history of law and emotion.

3. The Selden Society gets bigamous

R. Probert, ‘Double trouble: the rise and fall of the crime of bigamy’, (London, Selden Society, 2015) (SS Lecture for 2013) in which R. Probert upsets some assumptions about levels of bigamy in the 19th C (having previously done a good job revising ideas about levels of cohabitation, and attitudes to cohabitation)

Matters Testamentary: first thoughts on Law Commission Consultation Paper 231, Making a Will

I have just got through the very wide-ranging Law Com Consultation Paper on wills: a huge project, dealing with a important area which needs reform, though perhaps not something which is going to be at the top of T. May’s ‘to do’ list just at the moment.

There are some interesting developments in the ways in which the Law Commission is making its consultations available. Alongside the usual formal document and English summary (still pretty long!), I was pleased to see a prominent  summary in Welsh (Hwre!)  and also the well-thought-out ‘Easy Reading’ version. On this subject in particular, it seems important to get the views of people who would struggle with the usual academic/legal presentation. I do also love the infographics: these seem to have appeared quite recently in Law Com publications. But there is only so far you can go, and ademption and fraudulent calumny would not be easy to illustrate. In the end, this is a pretty involved area, and I suspect that most of the respondents to much of the consultation will be academics and/or lawyers.

Given the complex nature of the subject matter, the main document does a good job of setting out the areas which might be changed or questioned, as clearly and succinctly as possible. It is, however, rather too quick to assume that testamentary freedom is of overriding importance to a large majority of people (see, e.g. 1.12). If press reactions to the recent Ilott case show us anything, it is that ideas about personal responsibility for family members and dependents, and wider responsibility to society are also important to many of us. The extent to which rights over property should outlive us, allowing our dead hands to retain some grasp over assets which were ours in life, is and should be a matter for debate. Attention to the history of all of this demonstrates that English common law’s championing of testamentary freedom is relatively recent and has, at almost all times, been subject to limitations.

There is plenty which is picturesque in the language of succession law(e.g. I’ve always liked the idea that a will is ‘ambulatory’ – picture a formal document wandering around the place) and plenty which seems amusing about wills written on eggshells, and the many and various ways in which people can get things wrong, but there are also worrying cases, particularly those regarding vulnerable testators and the possibility of their being pressurised or tricked into making their wills in particular ways.  The paper makes some interesting suggestions about how to try and enable vulnerable people to make wills, while guarding against dubious behaviour on the part of those around them. In doing so, it has to deal with the messy state of play surrounding pleas of’undue influence’ and ‘lack of knowledge and approval’. The idea of some sort of support scheme for people whose capacity is diminished but not wholly absent, allowing them to make a will, seems humane and in line with international obligations, but whether this should be in any way state funded is much more difficult. Where should enabling those with assets to leave to depart from intestacy rules lie on a list of priorities which includes much more basic medical and social care needs? In addition, the gentle suggestion that medical and care staff should not be discouraged by their institutional policies from becoming involved in the will-making of their patients (1.33) seems to me to be questionable. Is facilitating ‘testamentary freedom’ really part of the appropriate role of these people and institutions, so that they should involve themselves in will-making, and the attendant risk of future litigation over the will of a patient, rather than looking after other patients who do not have assets to distribute? That would seem to be transforming this ‘freedom’ to a right – and one which trumps various, more basic and universally accepted, rights of others.

The paper has a go at the implications and opportunities of computing and the internet. Yes, Land Lawyers – shudder with me at the echoes of ‘e-conveyancing’- there are suggestions concerning the possibility of  e[lectronic] wills. The lessons of e-conveyancing seem to have been learned, though, and there is no great fanfare about this, just some discussion of the possibilities and difficulties and the suggestion of an enabling provision to deal with this as and when the technical difficulties are cleared up. So despite the Mirror’s excitement (http://www.mirror.co.uk/money/if-die-you-can-xbox-10796411 ), it is probably unlikely that we are about to see wills made by drunken text message.There is also some work on various electronic property or ‘property-adjacent’ things. I do look forward to seeing hardcore property lawyers getting into debates about rights to characters in online games [though perhaps they would enjoy ‘In the Toils of a Harlot’: the online undue influence game].

At times, reading this made me wonder about the role and process of consultation. On the one hand, too great a role seems to be given to those who choose to reply: thus, some of the consultation questions look as if they would be better answered by a solid empirical study, rather than by way of a question thrown out to all who wish to involve themselves – e.g. q 2 about experiences of the impact of making wills and disputes over wills after T’s death. Wouldn’t we get a more solid answer if there was actually a proper survey on this? On the other hand, those who choose to respond to the consultation may feel that they are regarded as being less important than those already sought out for ‘pre-consultation’ and labelled ‘stakeholders’. I am not fond of this word in any case, except in a gambling context or in relation to Buffy the Vampire Slayer. It’s an unthinking borrowing from corporate-speak of the worst kind, and it needs to stop. Leaving that aside, calling some people ‘stakeholders’ appears to me to give prominence to certain individuals or groups over the public at large. In this context, I am not sure that anyone should be regarded as having more of a ‘stake’ than anyone else: this law applies to all of us. As with the totemisation of testatory freedom, it plays down the impact on the public of changes to private law. It may well be sensible to talk to particular individuals and groups before writing a consultation document, but that is more to do with their particular expertise than their ‘stake’. Of course, we don’t like using the ‘e-word’ these days, do we?

GS 15/07/2017

Landmark remarks

Some thoughts on ‘Landmarks’

The word ‘landmark’ has been more than usually prominent in my various law-related channels of communication of late. As a matter of choice and interest, I keep up with the progress of the admirable Women’s Legal Landmarks project, which highlights significant steps on the far-from-finished road to equality, and will publish a book with Hart in 2018. In addition, my attention has been drawn by various people and by the publishers themselves to Hart’s several volume series, Landmark Cases in… which includes edited collections of articles on cases in particular fields of legal study.  Same publisher, same word, but rather different ‘feel’ to the two lines of ‘landmarks’ offerings.

Perhaps, in light of my interest in the former, it will be unsurprising that I raised an eyebrow when checking the details of the Landmark Cases volumes on Hart’s website: the often very small proportion of women authors and editors. I should say straight away that there are exceptions – Property Law, Medical Law and Family Law had better balances in terms of authors, and included a couple of female editors. Elsewhere, however, things were much less encouraging: note the contents details for the volumes on Tort, Contract, Public Law, Land Law and Criminal Law. A researcher of the future, looking at these volumes, would take away a rather odd picture of early 21st century legal scholarship. Are there really so few eminent female scholars (http://www.bloomsburyprofessional.com/uk/series/landmark-cases/ ) in these fields? Perhaps these books will feature in a chapter in distantly forthcoming collection, Landmarks in Women’s Legal Scholarship (2117), preferably as a footnote example of quaint peculiarity in the one concerning the move towards gender balance as a normal part of academic conferences and publishing.

GS 12/7/2017  

Easements update: Regency Villas in the Court of Appeal

Regency Villas v. Diamond Resorts [2017] EWCA Civ 238

Regency Villas was one of those rare cases to engage with  the law students’ favourite question, ‘can a certain right be an easement?’ – a chance to use the Ellenborough Park test on something other than parking rights or storage. It concerned certain rights  for those occupying one piece of land to go onto a neighbouring piece of land (Broome Park Estate, Barham, Canterbury) for a variety of recreational and sporting reasons (including swimming, golfing, tennis and squash playing). This brought up the issue of whether rights which were ‘merely’ recreational could be said to accommodate the dominant tenement, as required by In Re Ellenborough Park [1956] Ch. 131, and whether they were too vague to ‘lie in grant’. It gave lecturers a chance to bring the concept of ius spatiandi out from the back of the cupboard. The upshot of the case was that the rights in question were allowed, and the sensible deduction from it was that the objection to something as merely recreational would be unlikely to work in future. Unusually for such a case, it went up to the Court of Appeal, and the judgment has just been reported, so what has the Court of Appeal  done with it?

Reminder of the facts

The dispute centred on a grant made in 1981,

“for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis  courts, the ground and basement floor of Broome Park Mansion House, gardens and any other sporting or recreational facilities … on the   Transferor’s adjoining estate”

This was held at first instance (HH Judge Purle QC) to amount to a grant of an easement or easements. The ‘servient owners’ appealed, claiming that the rights in question could not be easements because of (a) the expense involved in maintaining the factilities, and (b) the change of facilities since 1981. If some of the rights involved were easements, they contended that others were personal rights only, and that the judge should not have allowed them as a ‘bundle’ of easements as he did.

Over to the CA: (judgment delivered by Sir Geoffrey Vos)

  1. Yes (again) to recreational easements

First of all, the CA agreed with the first instance judge that the fact that a right may be classed as recreational is not a bar to its qualification as an easement.  Care was taken to deal with one of the most frequently-cited snubs to such rights, and to affirm (i) that the list of easements is not closed and (ii) that the list must move with the times (as interpreted by CA judges).

At [56], there is a decisive rejection of the ‘mere recreation’ Baron Martin’s view in the Exchequer case of Mounsey v. Ismay (1865) 3 H. & C. 486 at page 498, that there could not be easements for “mere recreation or amusement”:

“… [A]n easement should not in the modern world be held to be invalid on the ground  that it was “mere recreation or amusement” because the form of physical exercise it    envisaged was a game or a sport.  To be clear, we do not regard Baron Martin’s  dictum as binding on this court, and we would decline to follow it insofar as it suggests that an easement cannot be held to exist in respect of a right to engage in recreational physical activities on servient land.”

The idea of moving with the times is emphasised at [1]: “‘Since [the time of Ellenborough Park], the culture and expectations of the population of England & Wales have radically changed.  This case has to be considered in the light of those changes.’ and at [54]: “…[T]the views of society as to what is mere recreation or amusement may change …”

The way in which the CA thinks that societal views have changed, indicating the need for a change in the rules about what qualifies as an easement, relates to the regard in which  physical exercise is held:

[54]: “…Physical exercise is now regarded by most people in the United Kingdom as  either  an essential or at least a desirable part of their daily routines.  It is not a mere recreation or amusement.  Physical exercise can, moreover, in our modern lives, take    many forms, whether it be walking, swimming or playing active games and sports. We cannot see how an easement could … be ruled out solely on the grounds that the form of physical exercise it envisaged was a game or a sport rather than purely a walk in a garden.” [54]

This might appear to be good, healthy and unobjectionable, but there are certainly some things to think about as well.

As is the way with property law decisions, this is presented as the product of a process of deduction and analogy, using both previous decisions and supposedly ‘common sense’ assumptions about life and land use.

I am not sure, for example, how many people would find the inclusion of justifications based on the allowance of profits a prendre for hunting and fishing purposes a very appealing argument.  In addition, judges do leave themselves open to a certain amount of questioning when they use some sort of normality criterion or implication when working out whether something passes the test for qualification as an easement. We may feel a little bemused, for example, by the inclusion of the information that [66] “The utility and benefit to a dominant dwelling or timeshare property of the ability to use a next-door tennis court is obvious to any modern owner.  Many country homes these days have their own tennis court or courts precisely as a benefit for the occupants.”  or [71] “…[T]he utility and benefit to the dominant tenement of the ability to use a next-door swimming pool is obvious.  As with a tennis court, some modern homes have their own pools as a benefit and a utility for the occupants.”  We may also feel that there is a certain unreality in the suggestion at [76] that “We are all familiar with the teams of groundsmen and greenkeepers that [high quality golf] courses need to employ to maintain them to the high standard that players frequently desire.” (my emphasis and disbelief).

  1. What’s in and what’s out?

The CA did think that the rights ought to have been split up and considered individually, rather than as a bundle [51]. They proceeded to look at nine different potential easements, ranging from use of the ‘formal Italianate garden’, through golfing, to use of post-1981 facilities.

So it was yes to: use of the ‘formal Italianate garden, croquet lawn, putting green and golf course but no to the right to use the reception, billiard room and TV room and other facilities within a building on the servient tenement, or a restaurant. This rejection was justified in very property-law terms, as [79] “the right granted is really not in the nature of an easement at all.  It is not about the use of any land, but the use of facilities or services that may for the time being exist on the land.”

While one may be glad to hear that “A restaurant is not like a toilet…” [79] there is food for thought in the distinctions being made here between different activities, and who is most likely to be in a position to benefit from them (so – yes to golf and tennis, no to TV, billiards, eating). Although the steps of the decision are often explicitly linked to the particular wording of the grant or facts on the ground, or realty and personalty (except when using an example based on profits, which certainly mix these concepts), there must also be an issue about the paradigmatic landowner or occupier of a dominant tenement who is lurking in some of this thinking. What does it mean for those who are not physically able (or who just prefer billiards to golf)? Is there a gendered aspect to any of this?

As far as the swimming pool was concerned, things were slightly more complex. In principle, an easement would have been legitimate in this area, but there was a problem – the servient owners had filled in the original outdoor pool and built another, indoor one. Because of the time factor and the change in location, no easement was allowed over the new pool. It was not [80] a ‘direct substitute’ for the original pool  [Crystall ball – look out for disputes over the difference between substitution and improvement on the one hand and extension on the other]. The ‘dominant tenants’ might, however, still have an easement over the (now-non-existent) original outdoor swimming pool. (The sometimes almost whimsical area of ‘non-abandonment despite non-existence’ is one of my favourite parts of easements). The court left that to be sorted out separately.

Misc.

A specific issue with regard to this case was that the slightly odd way in which the original transfer dealings were carried out might have led to particular rights being lost within 24 hours. This was something which seems to have weighed in favour of construction of the rights as easements at first instance (since this would tend to mean that they would survive), The CA was keen to keep separate the questions of qualification as an easement and acquisition of an easement: [62] “the parties’ intentions cannot ultimately validate an attempt to grant an easement of a facility that cannot in law be the subject of an easement”. A good model for law students to follow.

 

Conclusion and musings

On the specific facts of the case, this judgment showed a narrowing of the rights allowed as easements, compared to the first instance decision. Nevertheless, from a law student’s point of view, the most important thing is the reaffirmation of the fact that it will not be possible to challenge the legitimacy of  an easement simply because it is ‘recreational’.

For those who would like to take it further, there are a few things to ponder here. This does seem to be an area in which rather a lot of value judgments about land use and recreation can be brought in under cover of black letter property law principle. Arguments by analogy from the paradigm of the private right of way do seem to be rather creaky, particularly when the facts are far removed from the original context of the law of easements. Whereas many familiar easements cases involve individual landowners, this was about something rather more commercial. There are property companies and groups of companies involved. There is golf rather than ‘taking out small children in prams or otherwise’. Does Ellenborough Park, even with extensions (or improvements) really work in this context? The ways in which property lawyers consider these matters (including a sadly glossed-over ‘rather academic’ debate as to the nature of water in a swimming pool as realty or personalty – [71]) may well seem to many people to be as baffling as the words ‘incorporeal hereditament’ themselves.

GS 5/4/2017

After Ilott

[Apologies – not Legal History. Having a bit of a succession enthusiasm at the moment!]

Not surprising to see press attention on wills, families and charities, following Ilott. The Guardian has a piece about a family aggrieved at the fact that their relative’s will left a large amount of money to a private school: https://www.theguardian.com/money/2017/mar/18/how-1m-inheritance-slipped-family-grasp-challenging-will-heather-ilott

But the explanation of the Ilott case here is not quite right – Heather Ilott was not awarded money ‘ on the grounds that her mother had acted in an “unreasonable, capricious and harsh” way towards her’, but because she qualified under the Inheritance Act for reasonable financial provision. Not the same thing (there is a better explanation lower down in this rather rushed looking article). Also, it’s rather simplistic to say (as anonymous ‘solicitors’ are made to do here) that Ilott in the Supreme Court straightforwardly upholds testamentary freedom. Clearly not the case when the testator did not want her daughter to get anything, and she was awarded £50,000.

There are much more interesting questions which should arise from the juxtaposition of Ilott and this case (will of Sybil Jenazian), in particular whether charity fundraising techniques could possibly amount to undue influence (the private school ran active fundraising campaigns, predictably targeting particular people connected with it: contrast the less specific connection between Melita Jackson and the animal charities in Ilott). There is also the point that this is about cousins  as opposed to mother-only daughter, as in Ilott, so generally a much harder argument for reasonable financial provision.

 

From a narrative point of view, the story here does not really match Ilott very closely: it could be summarised as ‘possibly inappropriate pressure on possibly vulnerable testator’ as opposed to the ‘spiteful charity’ trope seen in Ilott.  There is, however, a definite similarity in terms of the huge amount of ill-feeling generated by inheritance and disinheritance.

 

No longer waiting for Ilott: preliminary thoughts

 

The Supreme Court heard Ilott v Blue Cross [2017] UKSC 17 before Christmas, and has now published its decision in this, one of the biggest cases on succession law in several years:

https://www.supremecourt.uk/cases/docs/uksc-2015-0203-judgment.pdf

It was a case about a will, and, specifically about an adult daughter’s challenge to her mother’s determined efforts to leave her nothing of her (relatively modest) estate. The mother in question, Mrs Melita Jackson, had instead favoured a group of charities, and had left specific instructions that any attempt by her daughter, Heather Ilott, to upset this arrangement should be resisted. Heather did indeed mount a challenge, based on the Inheritance (Provision for Family and Dependents) Act 1975. This allows a range of relations and connections of a deceased person to claim reasonable financial provision from the estate, under certain circumstances.

The case had gone through several stages before this, with judges interpreting the Act, and their own task under it, in rather different ways. While most seemed content to accept that Heather Ilott should be given some sort of support from her mother’s estate, there were varying views as to what sort of an award she should receive – how much, and in what form, and what should it represent?

The (unanimous) Supreme Court decided to allow the appeal of the charities in this case, which, as far as Heather Ilott was concerned, meant that the provision she would be getting from the estate went back to £50,000, the sum fixed on by DJ Million, rather than the substantially higher figure which the Court of Appeal had decided upon.

In real life, Heather Ilott’s loss may not be as large as it appears from these bald facts: the SC judgment makes it apparent that some sort of arrangement has been made between the charities and Heather Ilott, presumably to soften the blow of this decrease in provision. From the point of view of the charities, this was clearly a difficult case to handle, since they risked looking extremely, well, uncharitable in trying to reduce the award made to a woman who was, clearly, in unfavourable financial circumstances. Nevertheless, it was clearly important to them not to concede ground in the area of challenges to money left to them by will, given that this is one of their major sources of income.

The decision itself, although it is in favour of the charities involved, and has been welcomed by the charity sector more generally, is relatively cautious. It is hedged about by the familiar reluctance to define terms, insistence that cases turn on their own facts, and comes complete with a Lady Hale critique of the current state of the law (and the failure of the Law Commission to deal with its problems). It was not to be expected that one case could deal with the genuine and longstanding tensions between a feeling that a person should be able to do as she wishes with her own property, a power extending even after death, and an instinct that there is an obligation to support and maintain particular close relations, if found ‘deserving’ (or at least ‘not undeserving’). (It is often suggested that ‘testamentary freedom’, unaffected by the latter obligation, had a relatively short life-span, but that is to ignore the centuries of exploitation of a variety of devices – particularly, but not only, those involving uses and trusts – to achieve control beyond death in the pattern of succession to land and personal property.) On top of that ancient tension, there are large issues of principle in relation to the relevance of tax and benefits considerations in these sorts of decision, deserving of more rounded and thorough consideration than would be possible on one individual set of circumstances. No doubt both the implications of Ilott itself and the wider issues will be considered in detail by succession law commentators in the coming months.

It has been a long drawn out case for those involved. For those of us watching it unfold, it has been interesting in many ways. The Supreme Court case before Christmas was the first televised SC case I have ever watched (and yes, I did watch it all the way through!), which was quite educational, if not especially dynamic. I have also found it instructive to look at the press coverage of the case. There is a lot of criticism of the deceased mother, Melita Jackson, who is characterised as spiteful and unreasonable. This draws upon comments by counsel, claimant and judges. It may or may not be fair – Mrs Jackson is not around to give her side of the story, or to object to the way in which she has been portrayed. The lack of an opportunity to answer back is inevitable in wills cases, but it can be rather uncomfortable: I find it rather disturbing seeing such one-sided contentions about deceased people (I found the airing of the alleged delusions of a woman with Alzheimer’s in Lloyd v Jones [2016] EWHC 1308 (Ch) particularly sad: I don’t think any of us would like to think that the general public would one day hear the claim that we had had delusions involving aliens, witches, dead people and being burgled or poisoned by Saddam Hussein, and were incontinent). It would also be interesting to examine the comments in Ilott and in comparable cases to see whether certain types of criticism are more likely to be applied to female as opposed to male testators: that’s going on my list of ‘one of these days’ projects. (At least one very gendered ‘below the line’ comment here sums up the case as entrenching ‘the human right to be a b***h’ – their stars, not mine: http://www.legalcheek.com/2017/03/supreme-court-backs-three-animal-charities-over-struggling-daughter-on-benefits-in-a-row-about-her-dead-mums-will/#comment-1009330 ).

It has been interesting to observe the Telegraph, and, in particular the Daily Mail, as they make very apparent the tensions noted above. Although Heather Ilott (despite having claimed various benefits and tax credits over many years, and thus not being the sort of person they usually favour) is generally portrayed in a fairly sympathetic light, there is also a clear concern with testamentary freedom (particularly when defence of testamentary freedom can be combined with a dig at ‘out of touch’ judges: http://www.dailymail.co.uk/debate/article-3178080/MAX-HASTINGS-judges-tell-leave-money-wills.html ), and, when wider conclusions are drawn from the litigation, the reader tends to be cast in the role of testator, rather than badly-off IHA claiman (e.g. http://www.telegraph.co.uk/news/uknews/law-and-order/11766651/Your-will-can-be-ignored-say-judges.html )

(If anyone wants to see a somewhat lower level of commentary, then the ‘below the line’ comments on the Express article on the case are a good (in the sense of predictable and depressing) place to start: http://www.express.co.uk/news/uk/779633/Supreme-Court-rules-award-woman-left-mother-will-charity-payout).

So – lots to think about: certainly in terms of immediate effects, but also in terms of attitudes revealed by the case and its coverage, and in terms of longer historical traditions of allowing and limiting control of property beyond death. No doubt I will be coming back to this.

 

GS 15/3/2017

Further coverage

A couple of days on, we get this in the Guardian: https://www.theguardian.com/voluntary-sector-network/2017/mar/17/charities-court-disputes-contested-wills-melita-jackson?utm_source=dlvr.it&utm_medium=twitter – a condemnation of charities for ‘interfering’ in contested wills. It may be right to say that there are problems with public trust of charities, but it seems harsh to describe the charities’ conduct here as ‘interfering’, since the initial active part was taken by the daughter of the deceased, asking for an alteration in the way in which the deceased’s estate should be shared out, and then asking for a larger share than was awarded at first instance. The article plays down the idea that the case has precedent value – clearly it is very important for charities to know where they stand on the vulnerability of wills which leave them money. It also ignores the fact that there does seem to have been some arrangement to limit the actual impact of the decision on the daughter in the case. It looks to me as if the charities were very well aware of the possible PR issue. Whatever one thinks about the weight which should be attached to testtamentary freedom, this does look like an issue which needed a thorough workout in court, in an effort to sort things out for the future. Whether Ilott has done that is, of course, a different matter…

18/3/ 2017 General message that we should be able to do what we like in our wills in Janet Street-Porter’s opinion piece: http://www.independent.co.uk/voices/melina-jackson-will-charities-rspca-cut-daughter-out-supreme-court-sad-reflection-a7636056.html – though might have been an idea to read the judgment or summary a bit more carefully … suggestion here is that the will ‘stands’ and Heather Ilott gets nothing – the SC just put things back to DJ Million’s conclusion that Heather Ilott should get a lower sum than the CA awarded.

Emasculation-watch (with updates)

For a long time, I have been conscious of the odd habit of those writing about law of referring to the weakening, diminution or nullification of laws and institutions as ’emasculation’. It seems to be an obviously clumsy way of expressing these ideas, and one which identifies the good with the possession of male genitalia.

After doing some pre-tutorial reading for a cycle of land law tutorials on proprietary estoppel some time ago, I could contain my annoyance no longer: why are academics and lawyers so keen on the imagery of emasculation, and why they are not more frequently ‘called out’ on the implications of using a word which assumes that that which is good and useful has male genitalia, and that its goodness and usefulness are located in the aforesaid genitalia? I started collecting examples. 

The one which started me off was a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210), but I soon saw that it really is pretty common, and is often used in rather odd ways. A quick database search threw up examples relating to the emasculation of:

  • various statutes and statutory sections (including a section of the Equality Act – particularly inappropriate?:  The Queen on the Application of Mrs JH, Mr JH v Secretary of State for Justice [2015] EWHC 4093 (Admin) at [22]; See also, e.g. Gold Nuts Limited and others v. Commissioners for Her Majesty’s Revenue & Customs [2016] UKFTT 0082 (TC) at [218])
  • ‘all the provisions of the statute’: Hudson v Parker (1844) 1 Robertson Ecclesiastical 14; 163 E.R. 948 at 40.
  • other regulations (‘Emasculating TUPE: transfers of undertakings and the concept of the “economic entity” L.T. 2002, 3, 23-28
  • a tax (The Queen on the application of: Veolia ES Landfill Limited et al.[2016] EWHC 1880 (Admin) [182]
  • the beneficial principle of proprietary estoppel: Thompson’s article, and also Thorner v Major [2009] UKHL 18 at [98](Lord Neuberger combines an emasculation image with ‘fettering’ here – all a bit S & M sounding).
  • the doctrine of restraint of trade (‘EC competition policy: emasculating the common law doctrine of the restraint of trade?’R.P.L. 2007, 15(3), 419-431
  • the doctrine of legitimate expectation (R v IRC ex p MFK [1990] 1 WLR 1545 at 1569–70
  • the option (‘Emasculating the optionVAT Int. 1997, 15(1), 1380-1383).
  • a regulation’s purpose (M v W [2014] EWHC 925 (Fam): [34]
  • a sanction (JKX Oil & Gas Plc v Eclairs Group Ltd [2014] EWCA Civ 640 [124] and [126]
  • a right (Neil Pattullo v The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 841 (TC) [85].
  • ‘the meaning of the deed’ (meaning to distort? Westlaw Case Analysis, Adedeji v Pathania, Chancery Division 22 April 2015).
  • the concept of ordinary residence (Regina (Cornwall Council) v Secretary of State for Health and another [2015] UKSC 46 at [145]
  • incentives (Lloyds Bank Leasing (No 1) Limited v The Commissioners for Her Majesty’s Revenue and Customs [2015] UKFTT 0401 (TC) at [14])
  • the High Court’s role: Ghosh v GMC [2001] 1 WLR 1915 at [34]
  • obligations in a mortgage deal (Mark Robert Alexander (as representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd  [2016] EWCA Civ 496 at 81).
  • warranties (P &P Property Limited v Owen White & Catlin LLP, Crownvent Limited t/a Winkworth [2016] EWHC 2276 (Ch) at [101])

So – we see pieces of legislation and various less tangible things and ideas portrayed as damaged male bodies – decidedly odd at best.

Perhaps the oddest and most jarring use of this imagery is in Regina v “RL” [2015] EWCA Crim 1215 in which a barrister is said to have indicated (at [12]) that ‘the combined effect of the judge’s rulings was so to emasculate his cross-examination of boys A and B that he was in effect reduced to putting a bald proposition and having to accept the answer given by the boy concerned without further elaboration.’ Hard to know what to say to that – just – really? Best choice of words?

There may be some hope that people are beginning to see that this might be best avoided – applause for the appearance of a set of “” around the word in  Miss S C Hall v Chief Constable of West Yorkshire Police 2015 WL 5202319, before Mrs Justice Elisabeth Laing DBE, at [32] in her judgment. So, other judges, academic commentators, barristers, what about trying out ‘undermine’, ‘weaken’, ‘render useless’ or some such non-violent and not unnecessarily gendered phrase? Go on – it won’t ’emasculate’ your scholarship.

Update 24/02/2017

More Land Law preparation, more emasculation!

Fundamental human rights are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. And we have an act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.

Watching out for more, and would specially like to find the bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

Update 14/10/2018

Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.

Update 25/11/2018

Oh dear – just found another one. Reading over some chapters from J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), I came across an ‘emasculation’ in an account of alterations in the role/power of juries.

It’s in c. 11, J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, on p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?

There are also a few more recent uses of emasculation in litigation to note. We have:

·         the risk of ‘the emasculation of fiduciary duties’ (Mrs Justice Cockerill, para. 72 of Recovery Partners v Rukhadze [2018] EWHC 2918 (Comm) [because trust and trustworthiness are male-genital related, and there’s no particular reason that women should know better …]

·         the danger of ‘the total emasculation of the civil law’ (HHJ Saffman, para. 9 of Durham County Council v James Bradwell 2018 WL 05823332 [because private law is characterised by its possession of male privates …]

·         the worry that a previous case will be ‘emasculated’ (with diminution of particular rights) if this case goes a certain way (counsel in Goddard-Watts v Goddard-Watts [2016] EWHC 3000 (Fam), mentioned at para 73 [because more male = more expansive, better etc …]

·         the concern that a proposed solution is based on the ‘emasculation’ of a statute section (Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust  [2016] EWCA Civ 607, para. 56) [because there is no special inappropriateness in using male-genitalia based imagery in a SEX DISCRIMINATION CASE …]

Those academics, lawyers and judges who care about such things might consider the many alternatives to ‘emasculating’ language – why not try ‘evisceration’ (we all have, and need, viscera) or nullification (because – big news – it isn’t actually necessary to use a violent physical metaphor at all!). For a more traditional and picturesque feel, at least in relation to legislation, why not go back to the old favourite ‘driving a coach and horses through [insert name of Act]’? Daft but at least not sexist-daft. And you may be able to style it out as knowing and retro.

(I have been watching out for emasculation-talk in relation to Brexit, but it seems that the inappropriate imagery of choice there is that of slavery, vassalage, colonialism. No better, obviously, but an interesting difference.)

Update 12/7/2020

Oh dear – here we are once more – counsel general of Wales, Jeremy Miles apparently thinks Boris Johnson plans to ‘emasculate’ the devolution settlement.

https://www.theguardian.com/politics/2020/jul/12/boris-johnson-accused-of-plan-emasculate-uk-devolution

Must we? Must we read about weird metaphorical portrayals of good legislation as having male genitalia, weakened legislation as lacking them? Grim. Sexist. Nonsense. Also in the context of ‘union’, (and indeed Boris Johnson) getting into genital metaphor mode brings up all sorts of unpleasant images and consequences. Best not.

The level of distraction (from an entirely plausible and righteous objection) is not helped by the additional corporeal metaphor of Brexit, or the UK government, bringing a big fist down on devolution – fist or men’s bits, make your mind up. Or is the ‘emasculation’ being done (somehow) with a ‘big fist’? And Miles apparently gets another legislative cliché in by talking about ‘driving a coach and horses’ through the relevant legislation. A little tiny bit behind the times?!

Update 2/9/2020

And one which jumped out in my sifting of articles for ‘Blended Learning’ preparation for undergraduate Legal History … W. Swain, ‘The classical model of contract’ Legal Studies 30  (2010) 513-32, 532  the emasculated law of restitution.’ Always did find restitution a bit of a macho thing …

… To be continued.

Postscriptt/Update 24/02/2017

More Land Law preparation, more emasculation!

Fundamental human rights are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. And we have an act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.

Watching out for more, and would specially like to find the bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

 

Update 14/10/2018

Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.

Update 25/11/2018

Oh dear – just found another one. Reading over some chapters from J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), I came across an ‘emasculation’ in an account of alterations in the role/power of juries.

It’s in c. 11, J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, on p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?

EmasculationWatch update 30/4/2020

Emasculation still going strong. The same old things about emasculating sections, statutes etc. are still sadly in evidence.

Some notable new entries!

A competition lawyer talks about a conclusion being ‘emasculated’, and couples it with an image of a snake eating its own tail – The Competition and Markets Authority, Flynn Pharma Limited, Flynn Pharma (Holdings) Limited (“Flynn”) v Pfizer Inc., Pfizer Limited (“Pfizer”) v The Commission of the European Union [2020] EWCA Civ 339, 2017 WL 11508568, at 232. One for the Freudians, I think.

The protective nature of male genitalia: men’s bits must be understood as somehow protective, since we have a nice reference to ‘emasculating’ protection in Mr Lee Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB), 2020 WL 00137207, at 53.

A cursory look suggests that there’s most waving of ‘emasculation’ in commercial cases these days. It would be an interesting thing to compare and contrast the language used in different sorts of case (and then cross-reference with gender, social class etc. of lawyers in various areas?).

 

Poetic Injustice

Update 2020

I have been inspired by the sheer brass neck of late 19th C/early 20th C legal historian C.S. Kenny in writing a book which JUST HAS NO CONCLUSION.  No sign off – just stops dead! (CS Kenny, The History of the Law of England as to the effects of marriage on property and on the wife’s legal capacity (London, Reeves and Turner, 1879).

I always struggle with a conclusion – which may say something about the rather over-ambitious or amorphous nature of the topics I seem to choose, or (as I prefer to think of it) it may suggest that not all writing needs a conclusion of the sort which, after C.S.K.’s time, became de rigeur.

It strikes me that that structure is very stereotypically ‘academic macho’ – here’s my point, I’m going to stick to it, there, wasn’t I right? Perhaps it’s time to look at things differently – and, yes, I know I’m messing with the etymology, but what about a more cyclical style – a ‘womanuscript’, if you will …

Womanuscript

It may be that it will be viewed

As lacking in style, rather crude

Not to end things just so

With some show off bon mot

But too bad, I choose not to conclude.

14/6/2020

 

 

2017: OK, I admit it: this is not Legal History. Probably not even legal, come to that… But I feel moved by the spirit of New Year to post this fine example of intellectual endeavour. Don’t think the LQR is going to want it.

Bird bath

Thrushes rush in, wrens seem keen

and sparrows splash around together,

But will they really get me clean

and do they like Imperial Leather?

GS

1/1/2017

 

Having another poetic moment – feeling the pain of my final year students … this is for them

 

Life unexamined:

easily sneered at by those

not sitting finals.

18/5/2017

 

This, apparently, was found stuck to the door of a church in Germany …

Martin L.: the Augustinian Brother who could Do No Other

 

A Diet of Worms caused constipation

till his guts experienced  Reformation.

He objected to indulgences but still grew stout;

shacked up with a nun, chucked celibacy out;

wrote hot hit hymns, and cool translations

and tied himself in knots over consubstantiation.

His views on Jews can’t be overcome:

he had 95 theses: but tolerance wasn’t one.

 

19/5/2017

And this is a genre of poetry which will surely catch on: the modern observation linked to a medieval law-text …

Bracton’s Sister’s Distant Descendant in the Gym Changing Room

That law of persons bit in the old book,

sorting by status (and taking the odd swerve

through hermaphrodites and the nature of belts)

somehow missed out a key division:

the one between people who,

when they see you post-swim,

half dried and standing on one leg,

correcting the inside-outness of your knickers,

can wait a moment to get to their locker,

which you are, inadvertently blocking,

and those who

Excuse Me!

just

bloody

can’t.

 

9/7/2017

Mistresses in modern law reports and legal writing

After the last post’s moan about emasculation imagery in legal writing and law reports,  today I turn to another annoyance which happens to appear in my recent land law reading: the strange survival of the term ‘mistress’.  It comes up in the important case of Stack v Dowden, and, as another quick electronic search shows, in many other places as well.

And what is wrong with using ‘mistress’, it may be asked. Well, while it can’t really be escaped in certain historical contexts (think Louis XIV), and, when a person calls herself that (Mistress R’eal appeal – dominatrix not bound by video on demand ruling (Case Comment) Ent. L.R. 2016, 27(3), 118-121), then what else can you do?, but, otherwise, it is best avoided when talking about the modern world, because of (a) its ambiguity and (b) its embodiment of extremely unequal assumptions about gender relations.

So – a quick survey (Clearly this is something which is worthy of much more sustained research – where is my Research Council grant?) Mistresses can be seen in academic article titles – either real women  (e.g. ‘Grierson spent GBP 630,000 on mistress’, S.J. 2012, 156(23), 5) or more metaphorical (and not in a nice way – ‘fickle mistress’ anyone – ‘A flexible friend or capricious mistress?’ E.G. 1994, 9416, 138-139). Have to say I am quite taken by the title ‘Power is my mistress’ (great indie album title, no?) – but not enough to read a journal called ‘Tax’ (Tax. 2007, 159(4092), 102).

Looking at cases, (once head-mistresses and post-mistresses are filtered out) there are many examples of the term being used by others and transferred into the reports – e.g. in defamation cases against newspapers etc. Can’t really hold that against the reports. But there are also still too many other examples of unnecessary and inappropriate mistressings – in all sorts of cases, from crime to ecclesiastical matters.

Succession cases are another stronghold of the usage (see e.g. Rowena Ferneley v Stephen John Napier, Catherine Emma Brooks, Derrick Arthur Napier [2010] EWHC 3345 (Ch) at [3]; Elisabeth Gorjat, Philippe Gorjat, Sophie Charriere v Lucrecia Gorjat [2010] EWHC 1537(Ch) at [25]

Although the old beneficial interests cases are stuffed full of mistresses, it’s a shock to see it still being used in Stack v Dowden  [2007] UKHL 17 , [73] quoting the first instance judge’s description of a couple as ‘man and mistress’. As well as being sexist (not partners, cohabitants,  the symmetrical man and woman, nor pairing mistress with some equally judgmental male word [which doesn’t exist]) it is quite obviously inappropriate to use this single designation for a couple with a complex and fluctuating relationship, in which the female partner was at least her partner’s equal.

There might be half an argument for keeping ‘mistress’ if it helped to define the relationship better than other, less offensive words, but when it is used, ‘mistress’ now seems rather indefinite. It no longer means a ‘kept’ woman. It may or may not involve adultery by the ‘mistress’ or the ‘man’ (Lilburn v HM Advocate [2015] HCJAC 50 [124]). It may or may not involve the pair living together, or having a family (pair living together – with man’s wife as well – R. v Barry McCarney [2015] NICA 27 at [25]). She may be a much younger woman with whom a man has ‘taken up’ (Re Lindley (Setting of Minimum Term), Re Queen’s Bench Division [2007] EWHC 1436 (QB), Westlaw Case Analysis). A ‘man’ may have more than one ‘mistress’ (Hawk Recovery Limited v Natasha Anastasia Eustace, Brunswick Wealth LLP [2016] EWHC 115 (CH) at [36])

The ‘mistress’ appears in some ecclesiastical cases to have an almost official standing, though the exact definition is not explained (see discussion of the rights of mistresses against widows in In re St Augustine’s Churchyard, Droitwich Spa; In re Spickenreuther’s Petition [2016] ECC Wor 2; Ormandy, Re (Court of Ecclesiastical Causes Reserved  25 August 2009, Westlaw Case Analysis, unreported). In succession cases, the ‘mistress’ may be set up as the rival of a former wife (John Arthur William James, Stephen Neil Mountford v Kathleen Louise  Williams and others [2015] EWHC 1166 (Ch) at [7]). Again, I am not sure the full meaning is beyond dispute.

Another level of ambiguity comes from the fact that ‘Mistress’ has come to have overtones of (transgressive?) sexual dominance (Stephen Dawson v Laura Bell [2016] EWCA Civ 96, concerning ‘a fetish website with a Mistress Directory’. The idea of mistress as  dominant partner in sex is seen in  Y v Slovenia  (2016) 62 E.H.R.R. 3 at [34]),

All in all, it seems best jettisoned. Failing that, perhaps a movement to insist that every usage of ‘mistress’ is paired with an appropriate demeaning/judgemental term from the list: ‘philanderer’, ‘fancy man’, ‘little turtle dove’ etc. etc.

Update, 11/8/2018

Article in the Guardian with reference to a woman having been somebody’s ‘mistress’. In 2018. (Also note lack of realisation that we are in the midst of a huge UCU strike which is proving pretty successful … top journalism) https://www.theguardian.com/commentisfree/2018/mar/10/dont-look-to-len-mccluskey-and-his-sorry-ilk-to-defend-workers-interests

Update (sort of!) 29/4/2020

Disappointing sighting – Helen Maud Cam, Law Finders and Law Makers, 214, oh Helen M., did you have to give us the image of Law and History as ‘Maitland’s two mistresses’ ? Really???