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Over the course of the year the question came up again and again, why did Clarissa not litigate? why in this opening phase ("Clarissa resists family pressure") of the novel, did she not take over her property? why not pack the suitcase, hurry out to her property, and ignore these unkind relatives? why in the second phase of the novel ("Clarissa resists Lovelace's more varied forms of pressure"), especially after she was drugged in order to rape her, did she not litigate? Was it some taboo that led her to choose running away with Lovelace as the lesser of two evils? Was it similarly a taboo which prevented her from standing up in an open court and accusing her rapist? In the former case, one individual wrote: "Some recent scholars with law degrees have emphasized that not even Papa Harlowe had any authority over his daughter's inheritance from the grandfather." In the latter it was clear that after all she was not unwilling to publicize the minutest detail of her experience by writing letters and sending them out to the world. The following dialogue represents what was said around the time we were reading the letters for March 10th and 11th, and particularly in response to Clarissa's statement: "As to the adivce you give, to resume my estate, I am determined not to litigate with my papa, let what will be the consequence to myself" (Friday, Mar. 10, Letter 28, Ross Penguin, p 134). For a later dialogue on (in effect) on the aspect of this issue which relates to the rape of Clarissa, see July 10 when after Anna and Mrs. Howe have read Clarissa's description of the rape, Mrs. Howe insists that it is Clarissa's duty to prosecute Lovelace in the courts (Monday, July 10, Let 317, Ross Penguin, p 1016) and September 16 where after Clarissa has died and Belford has become her executor and Morden returns and agrees to support Belford, the question of Clarissa's inheritance from her grandfather and her grandfather's will comes up again (Saturday, Sept 16, Let 505, Ross Penguin, p 1410). First I wrote (this to C18-L): Re: Why Did Clary Not Just Pack Up & Go? Is it that in a court of law in the 18th century in England a woman had no standing, and thus could not execute a contract. The text seems to suggest that Clarissa could not litigate on her own; her case would have to be brought forward by her "next friend;" if she were married, her husband could sue on her behalf. Is it not that before marriage, women were "covered" by their fathers; after they are "covered" by their husbands (the phrase is "Feme Covert")? I had thought thatonly when a woman became a widow did she have legal standing. Clary signed power of attorney to her father, but even if she hadn't, she couldn't have acted herself, and, as her guardian, he would be responsible for her property. I also recall, however, a concept of "feme Sole," which could apply to a woman over 21, not married, and allow her to manage her property on her own, which of course includes going to court. I remind everybody the property in question is that which Clary was left by her grandfather; it should probably be recalled also that this was probably worth money as rents from tenants and therefore lived on and worked by tenants; if there's a manor house we're not told that it's not let; Clarissa speaks fondly of her dairy house & chickens; maybe it was empty? As for the chickens, maybe their really a tenant farmer's who out of courtesy and affection for her calls them hers. Clary's 18? Anyway the question is, is there some legal difficulty or impediment preventing a defiance based on inheritance from the grandfather? Ellen Moody Re: Why Did Clary Not Just Pack Up & Go? (II) It strikes me I should have included more particulars in asking the above question: so, first, the disposition of the property is not clear; at one time we are told it is disposed to Clarissa; at another it seems left in trust to her; the trustee named are Uncle Harlowe (Mr Harlowe's brother) and cousin Morden; second, Anna it is who urges Clary to "resume" by writing the trustees and asking them to act on her behalf. This in a paragraph which sounds like a fantasy: I would be in my own mansion, pursuing my charming schemes .. I would set up my own chariot. I would visit them when they deserved it. In response Clary says she vowed "not to litigate with my papa" (see above, Ross Penguin, p 134). While we are not given a copy of the will, there is a preamble in which the old man "dispose[s] of the above described estate in the precious child's favor;" he also justifies his leaving his property to his younger granddaughter, and shows real fear he will not be listened to: "it is my epxress will and commandment, and I enjoin my said three sons ... and my grandson ... and my granddaughter ... they will not impugn or contest the following bequests and devices in favour of my said granddaughter Clarissa, although they should not be strictly conformable to law or to the forms thereof ..." I take this as fear of litigation. We are told in a footnote that the dairy-house was built for Clary; that there is a manor called "The Grove, " but who is living there now I believe we are not told at least in the early letters of the novel (where the Clary list is). In another place Clarissa says "my father himself could not fear that I should be made sole [femme sole?], as I may call it, and independent, for such the will, as to that estate and the powers it gave made me." Then Clary says "I gave up to my father's management ... not only the estate, but the money bequeathed to me which was a moiety of what my grandfather had by him at his death ...) contenting myself to take as form his bounty what he was pleased to allow me, without desiring the least addition to my annual stipend." Is the old man not setting them all up for a Jarndyce & Jarndyce? An inability to go to court (if Clary is unable), would make a contract invalid, no? Why was the bequest not "conformable to law or to the forms thereof." And would not the tenants be afraid to pay Clary the rents for fear someone else would come and demand the rent, and say, "Who's Clarissa? You owe me the money." So maybe it's wise of Clary not to pack and "light out for the territory." Maybe she needs either Morden, or better yet, as a man not related to the Harlowes, one Robert Lovelace Esq persistently and determinedly to act for her in court. Ellen Moody On this Tedra Osell, Laura B. Kennelly, and John Dussinger commented as follows: From: Tedra Osell Subject: Re: Why Did Clary Not Just Pack Up & Go?
I am working on some of these same questions in Evelina. What I have
found is that a married women could definitely not hold "real" property
(i.e. land) separate from her husband. I am not entirely sure whether an
"infant" (a minor) could hold real property separate from her father.
But what I have found out is that the courts virtually never ruled in
favor of women against their fathers or husbands unless there was some
other man in the picture (creditors, her father defending her against her
husband, an heir) and that even if they did it would often be overturned
on appeal. As a minor, Clary was entirely at the disposal of her father,
so that if she had run away probably any court in the land would have
so that if she had run away probably any court in the land would have
been happy to find for her father regarding the control of the property
as an incentive to her to return to his protection, especially as she
would not have been able to accuse him of cruelty since he didn't
actually beat her.
The problem for Clary, and for your question, is that the laws regarding
women and property, especially property, were simply not simple. There
were several different bodies of law, several different kinds of
precedent, and several conflicting rulings on all of these questions of
women and property. So her legal rights would have been very hazy even to
her, and since she had given her father power of attorney trying to
reclaim her property, even if she had managed to do it, would have taken
ages (by about 1770ish the Chancery court, for example, was backlogged for
months, maybe even 2 years if I remember correctly) there wouldn't have
been a lot of point, practically speaking, even if she had a hope in hell
of achieving a favorable decision
Clary would have been neither feme sole nor feme covert, she would have
been an infant until age 21. Infants could own real property, but it had
to be under trusteeship, presumably because they weren't to be relied on
to manage their own affairs, although at 17 she could have acted as an
executor for someone else, so maybe she was old enough to manage her own
property; it would have been unclear enough to be doubtful in a court of
law, I think.
There was a decided legal and social prejudice in favor of male ownership
of property, obviously, so that if it had come to litigation the court
would almost certainly have found for her father, or her uncles as
trustees if anything in the will were not 100% waterproof, so to speak.
Blackstone specifically says that the purpose of the law regarding wills
is to interpret them strictly as there is no natural right to dispose of
property, but only a legal one so that the letter of the law must be
followed - t's crossed and i's dotted.
The tenants would probably have been at least as confused as anyone else
and as long as the person managing the place came around for rent I doubt
they would have worried about it.
Also, after 1753 Clary could not have married legally without her father's
consent (the Marriage Act passed then was designed precisely to prevent
young heiress - and their property - from being "stolen" by younger sons
and upstarts), so it would have been very unwise of her to marry Lovelace
and let him pursue an action since the marriage would have been invalid
anyway if you are dating the action of the novel after 1753.
You might want to have a look at Susan Staves' book Married
Women's Separate Property in England 1660-1833.
Then Laura B. Kennelly wrote:
Tedra's comments do much to explain a couple of things about
Clary's property--but they raise other questions as well. I think that her
grandfather's will remains problematic, for, if he knew that he could not
make his grand-daughter independent, why on earth did he try? While his
injunctions against the rest of the family to leave The Grove and his
grand-daughter alone do make sense--what on earth made him (and his
solicitor!) believe that this "will" would be honored? Secondly. If
Clary could not hold property as a minor--why does she make such a great
show of turning it over to her father? This appears to have been
inevitable. And if so, why, then, does James feel challenged, that is,
why are his feathers so ruffled if the will is essentially illegal?
Further, what about the widow Howe and her daughter? Is there no male
heir anywhere in the family? There is another daughter/sister, also a
widow, but I think widowed later than the mother--would not have all the
Howe property passed to that son-in-law at papa Howe's demise?
Laura B. Kennelly University of North Texas Department of Englis
Denton, TX 76203 fa40@jove.acs.unt.edu (817) 565-2126
Tedra replied:
As in my last message, Clary could (I think) have owned property but it
would have had to be managed by an executor. If I remember what she had
signed over to her father was the rents proceeding from the property,
which she would probably have been entitled to - the way that nowadays
investments held in trust for a minor can be controlled so as to give the
minor an allowance but keep him or her from misusing the capitol, but the
trustees cannot themselves spend either capitol or interest.
Land would not necessarily have passed to male heirs unless it was in
strict settlement, and if so it would have to pass through a male heir,
so son-in-laws (not related by male blood) wouldn't count, nor would sons
of daughters. This is much more complicated than I am making it seem
here. Briefly, only if property was entailed to male heirs (which
obviously with regard to Clary's estate it wasn't or someone would
certainly have challenged the will), it would have passed to the nearest
male descended male heir no matter how distant, or to the trustees in
remainder (I think that is the term), that is, the male heirs of whoever
had been named in the original settlement as back-ups in case the whole
family, or its men, died out.
Moll Flanders is a bit early for me, but I *think* she had very good
reason to be so secretive about her assets. I do recall a case where a
woman whose husband deserted her was given some money by her mother to
set up a shop and her husband came back and stole everything in the
place, was taken to court and the judge decided in her favor: but the
court made it clear that this was an exception to the letter of the law,
by which her husband was in fact entitled to do whatever he wanted with
her property.
Then Laura wrote:
Do you suppose she just turned over her assets to her father because she
wanted to believe the best of him? That it was important to her own
self-concept that she be a "good" girl? And a dutiful daughter? That she
was, in a sense, challenging him to do the right thing?
Laura
To which Tedra again responded:
I just have to respond to this, in conjunction with the earlier question
about the relevance of looking into the legal facts surrounding
Clarissa's fictional case. My reasoning is that the law is indeed
relevant, in presenting, if I may be allowed the term, hard evidence as
to *why* a good girl and a dutiful daughter would have turned her
property rights over to her father if she didn't have to. If she did
have to, I think it is interesting to note how she turns a legal
necessity into a proof of her virtue. In other words, I don't think
social expectations of virtuous feminine behavior (for example) exist in
a vacuum.
Tedra
Finally, John Dussinger commented:
"But regardless of the actual laws, to understand the novel as a
novel we probably should accept Richardson's interpretation of the
law." I emphatically agree. So let's go back and look carefully
at a passage in Letter 28 I don't believe anyone has remarked yet:
To begin with, doesn't Clarissa imply that she has the legal right
to demand possession of her grandfather's estate at this time? By
not doing so now, however, she acknowledges some possible evil
consequence to herself. The full explanation will have to wait.
Observe next the surprising idea that one important reason for not
demanding her inheritance at this time: such an action would cause
Lovelace to give her up completely as a possible wife. WHY? What
exactly does she mean that men "look forward to the PERMANENT"?
Why would her resuming her estate interfere with marriage? Would
it make her seem too independent of any potential husband?
Note that she agrees with this social situation: "Indeed, it is
fit they [men] should. For love must be a very foolish thing to
look back upon, when it has brought persons born to affluence into
indigence: and laid a generous mind under the hard necessity of
obligation and dependence." Can the lawyers on this list gloss
this passage for us? Is she saying that men should certainly be
careful to make sure that the marriage contract will not involve
any risk of losing control over the wife's property--that they
would otherwise be foolish to "fall in love" and end up dependent
on their wives' good will rather than have legal power themselves
over their property? As a footnote to Tedra Osell's valuable
information, like most Whigs, Richardson, we know, was a staunch
supporter of Lord Hardwicke's Marriage Act of 1753.
To this someone else (whose name I no longer have among
my records) agreed:
On 11 March, John Dussinger examines a passage in Letter 28 in
which Clarissa says she will not resume her estate:
I read this passage differently, assuming that the italicized
"this" refers to Clarissa's determination not to litigate. If
so, then Clarissa means Lovelace is too prudent to pursue a
woman who would bring little to the marriage; he looks beyond
his transient passion to a "PERMANENT" estate. Clarissa may
therefore believe one of the "consequences" of her decision to
be the loss of an attractive suitor.
She's wrong, of course: Lovelace is no Wortley. He's more
decisive and less obsessed with money. Lovelace is, however,
concerned with issues of independence, and I agree with John
Dussinger that this theme deserves our attention.
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