Saturday, December 5, 2009

Update: The Law & Black Silk

(Just have to say this: That title makes me grin.  When a barrister is selected to be Queen's Counsel, the appropriate phrase is "taking silk."  I've seen photos of both my ex-father in law, and his father, on the occasions of their taking silk.  Imagine lots of lace and white gloves, in addition to the powdered wig and black attire!  And, for all I know, a QC's robes might well have been black silk.)

I just got off the phone with my ex-husband, who's now a patent attorney in Philadelphia, but who was for many years a patent agent in London.  His father was a QC in patent law, and his grandfather was a QC in general litigation.  My ex is also one of those people who knows everything, and isn't the least bit arrogant or obnoxious about it.  So he's a great source for all the legal stuff.  Anyway, this post is about what I've learned about the legal affairs contained in Judith Ivory's Black Silk.  In my earlier post, I got some of it wrong, and some of it right but with details wrong.  I am confessing all my errors & omissions here.

Let's take the paternity claim against Graham.  He would have had to go to his QC's chambers, so I was wrong about that: it is, I gather, an issue of legal procedure.  My bad.  But I was right that the penniless chit (I'll call her Penny) wouldn't have been bringing the action for paternity directly.  Instead, she would have applied to the Church Wardens and Overseers of the Poor in her parish.  Even though that's the Church of England, they also served as social security for impoverished parishioners such as Penny.  (I'm assured there are two Church Wardens:  One for the right side of the church and one for the left.  I've no idea what that means.)

It's the Church Wardens and Overseers of the Poor who would have approached Graham with Penny's claim that her twins were his offspring.  Most likely, he'd have paid the Church Wardens off, although if he genuinely believed that he was not the father, he could have refused, and the Church Wardens could have brought the legal action to compel him to pay.  But here's the really shocking part:  In 1858, the standard wages for a working class man to support his family were ten pounds per annum.  Ten pounds!  So even if Graham pays Penny off, it will cost him somewhere in the neighborhood of a hundred pounds.

(Yes, that was a lot of money back then, but he's rich.  It's a fraction of what he would have paid for "prime horseflesh," for example.  So basically, it's a tiny sum, and it would have solved the problem.)

Right.  Now to the suggestion that William (illegitimate son) could have contests Henry's will.  According to my ex-husband, William had no standing to even bring an action.  Plus, Submit is automatically entitled to both her jointure (meaning the amount that Henry would have settled on her at the time of their marriage, intended as a trust to support her in her widowhood) and her "widow's bench," an archaic term for the portion of the estate's assets that she was entitled to have as his widow.

So.  Two things:  Even if William (or anyone) sues, that can't prevent Submit from having access to these two sources of funds, which would have been substantial.  I believe that her widow's bench (great term, hunh? those wacky Brits!) would have included housing on the estate, so no way would she have been ejected completely.  And second, unless he's an heir he has no standing, and as he's illegitimate, he can't be an heir.  (He may have been a legatee under the will, but he's not an heir to the estate, if you see what I mean.  And it's totally okay if you don't.)

And not that this is relevant, but here's a fun fact my ex threw in.  The classic example of an estate that reverts to the Crown is that of an illegitimate bachelor who dies intestate.  Meaning:  Because he's a bachelor, he has no wife or legitimate children to claim the estate.  As he himself is illegitimate, his parents cannot claim the estate.  And as he died without a will, no one can inherit.  So it all goes to the Crown.

There you go:  Church wardens and illegitimacy...

5 comments:

  1. As another lawyer, I do find romances with legal angles quite difficult - and it's not just (or even mostly) the technical stuff. For example in Practice Makes Perfect by Julie James I kept thinking no, no, no - it's not *like* that (even though the author is a lawyer - and in a different country from me). It just gets in the way I find, disrupting the flow.

    Re Black Silk specifically, I didn't get too distracted by the legals - since 19th century English law isn't really my field *g*. I agree with Janet though - I never really connected with the characters although I have a sort of cerebral love for the book.

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  2. @Tumperkin -- I agree with you about legal books -- I worked in a large American law firm akin to the one that Julie James wrote about in Practice Makes Perfect, and I didn't agree with a lot of stuff. Mostly it wasn't the office logistics I didn't agree with, but the concept that any two lawyers could take a competition for partnership to those (potentially unethical, certainly unprofessional) extremes.

    But then I take a chill pill and remind myself about creative license, etc. The reason the chill pill didn't work for me with Black Silk is that the legal cases (one of which was so easily resolved it would have been a blip in Graham's life and thus of negligible significance; the other literally impossible) were the basis for the set up of the entire plot. Take those away and Submit's living at Motmarche until the Crown gives the marquessate to Graham -- which could make for interesting conflict especially if he brings Rosalyn along with him -- and Submit's got more than enough money to solve all her own problems. So much of what the book is about and how it unfolds is taken away because William lacks standing to sue.

    You practice in the UK -- would an illegitimate child have standing even today to evict a widow from her home barring a will that specifically commands that? Also -- and here I'm woefully ignorant -- I'm not sure a holographic will would be deemed invalid, but even if it had been, she's still entitled to her "widow's bench" and jointure.

    So the way I read it -- the will's irregular, but nothing in it (and certainly nothing if it's deemed invalid) gives William standing to petition the probate court to eject Submit. Then she's not living in London, her commission to give Graham the infamous box can be discharged in a much more efficient manner, and they don't meet until he's the next marquess.

    Whole different book.

    (But, yeah, bottom line: I just didn't like them. And my cerebellum must not like J.Ivo.'s writing the way everyone else's does... LOL)

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  3. Excellent posts on Black Silk, Magdalen! I know next to nothing about the British legal system in the 19th Century, so I was fascinated to read your take on it.

    As for the book itself: I've tried and failed to get into it. It's the sort of style which should appeal to me, yet somehow doesn't. It's odd as my objections to it are very similar to the complaints many readers have with Jo Goodman's style, yet I adore Goodman's books.

    Thank you so much for providing your unique take on a book critique/analysis. I, for one, would love to see more of these.

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  4. Magdalen - I practice in the UK in Scotland. It's a different legal system from England. Scots law has Roman law origins - like many other European states and unlike England. In reality, because of being part of the United Kingdom, and because of the huge outpouring of new law in the last 50 years, the two systems are now very similar in many ways but the two areas which remain quite different are probate and property. So I really know very little about 19th century English succession laws...

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  5. @Sarah -- All along I've tried to respect that different books do it for different people. I don't normally feel as uh, strongly as I do with Black Silk, but I'm interested in books for all sorts of reasons. And I sure learned a lot that I wouldn't have if I hadn't participated in Black Silk Weekend!

    And I will try to do more of these -- maybe next time with a book I actually like! :-)

    @Tumperkin -- Ah, well, I'll take your word on the difference between English common law and the laws in Scotland. (I'm woefully ignorant in this area.) It sounds, though, analogous to the laws in Louisiana which, alone of the 50 states, are based on the Napoleonic Code and not Anglo-English common law. I do love learning new things!

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