Fiduciary Duties: Congreve's The
Way of the
World1
Penelope Pettier
t has been argued by my colleague Simon Petch that the Law and Literature
movement is the child - indeed perhaps to a commentator like Posner the
flower-child - of les evenements de soixante-huit (which include more than those of
May in Paris), and that its mission is both liberal and reformist.2 Stanley Fish refers
in passing to the reformist politics of the movement - if such it is cohesive enough
to be called - when he says
I
As things stand now, legal practitioners are responsive to the news from
economics and invoke it as a constraint on their own activities. It was, of course,
not always thus (despite the revisionist histories of some ‘law and economics’
advocates), and it may not be so in the future, especially if those in the
profession who are now looking to literary models for guidance are successful.3
These propositions receive support from the programme of papers given at the
inaugural Australian conference on Literature and the Law4 held at the University
1
2
3
4
An article based on a Paper delivered at the first Australian Conference on Literature and the
Law, held at the University of Sydney, on April 20-22 1990.
R.A. Posner, Law and Literature: A Misunderstood Relation (Harvard U.P. 1988) and
Petch, Law as Literature, 16 SYDNEY STUDIES IN ENGLISH 121 (1990-91).
S. Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory
in Literary and Legal Studies 13 (Duke U.P. 1989).
The conference was a joint initiative from the Department of English at Sydney University and
the Faculty of Law at Monash University. The convenors were the writer, and Dr Simon retch,
both of the Department of English, Sydney University.
71
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of Sydney on April 20-22,1990. With few exceptions these papers were, to some
extent or in some way directed to having the law judge itself, reform itself. Fish’s
propositions were also confirmed by the profile of registrants at the conference:
however esoteric or academic the appeal of a Literature and Law conference might
have seemed at first blush to be, the fact remains that the majority of the registrants
were practising lawyers or jurists, and the next most numerous group were from the
legal academy.
I want to suggest an additional and complementary agenda for this interdiscipli­
nary endeavour that is constituted by the Australian Law and Literature movement:
what Literature can leam from the practice of the Law. Nicholas Hasluck and
Geoffrey Lehmann (in papers titled ‘Poetry as a Forensic Art’ and ‘Inscribing Legal
Fictions’, respectively) implicitly addressed this question from the perspective of
legal practitioners who are also one sort of literary practitioner. I am addressing it
from the perspective of a former legal practitioner - perhaps it would be more
judicious to say a once and perhaps future legal practitioner - who is now a junior
literary studies academic - that is, a practitioner and teacher of what I will call literary
studies.
Those readers who are members of my present profession will have made certain
assumptions about the way I do what I do, about my beliefs, about my agenda, from
certain word-choices that I’ve made in what I’ve just written. If I’ve done my job
properly the assumptions should be causing alarm bells to go off in some of them
because, among other things, I ’ve used the word ‘literary’ on two occasions; in others
because, among other things, I’ve used the term ‘literary practitioner’ rather than
‘creative writer’ or ‘critic’, and because I’ve used the term ‘literary studies’, rather
than ‘English studies’, or ‘literary criticism’. For those readers who are lawyers,
however, and who don’t share this particularly heavily-nuanced specialist vocabu­
lary, I’ll make clear my reasons for suggesting why literary studies can profitably
leam a lesson from legal practice by adducing some evidence.
In The Times Literary Supplement, one Kenneth Millard, a lecturer in English at
the University of Newcastle-upon-Tyne, savaged a book on Thomas Hardy by
T.R Wright, who also comes from the School of English, the University of Newcas­
tle-upon-Tyne. The review begins ‘It could be argued that T.R. Wright’s book has
already been written by J. Hillis Miller...and by Howard Jacobson’. It gets worse.
Millard concludes that the book
offers few valuable arguments about the nature or dramatic use of eroticism and
no new reading of the novels. This is surprising because the Hardy of this book
is one whose thought allegedly anticipates Freud, Barthes, Foucault and Lacan,
and it is said that the book is written ‘from a critical perspective informed by
these theories’. However, to call reflections in a mirror ‘Lacanian’, to refer to
symbols as ‘Lacanian’ symbols and to dub self-doubt as ‘Lacanian self-doubt’
is not to read Hardy from a perspective informed by Lacan. Nor do parenthet­
ical references to Barthes’ hermeneutic code and Foucault’s analysis of sexual
FIDUCIARY DUTIES
1991
73
discourse contribute an interpretation necessarily different from that of tradi­
tional liberal humanist criticism.5
Why this should constitute such a swingeing attack may be mystifying to those
readers who are not from the literary academy. Simply put, Millard is sticking die
slipper into Wright for not confining himself to one or other of ‘traditional liberal
humanist criticism’ or ‘post-structuralist literary theory’. The legal equivalents of
these might be ‘traditional jurisprudence’ and ‘critical legal studies’. As I have been
trained by my present profession to read the rest of Millard’s review6, and as I divine
from the biographical note in the TLS that he is about to have published a book
called Edwardian Poetry, I gather that he regards himself as practising ‘traditional
liberal humanist criticism’. But a critique based on the same grounds - that
T.R. Wright is flirting with the enemy, or is not sufficiently politically/theoretically
committed to his critical/theoretical method - might also typically have been levelled
at Wright by an avowed ‘post-structuralist literary theorist’.
Defending himself Wright said
Millard’s review...raises some important questions about the admissibility of
appropriating radical theoretical ideas for die traditional purpose of interpreta­
tion. I claim that what distinguishes my approach from Hillis Miller’s of 1970
is my use of Freud, Barthes, Lacan and Foucault, that the strategies of reading
opened up by such thinkers in the past twenty years do indeed comprise a
different critical perspective.7
r Millard underestimates, I think, the difference such theories make to our
critical practice. In employing them for traditional interpretive purposes
I have clearly opened myself to attack both by radicals, who resent my borrowing
post-structuralist terms without committing myself to its ideology, and by
conservatives who complain, when they cannot understand Lacan, that he’s
obscure and, when they can, that he’s obvious. I cannot, however, be alone in
believing that critical theory not only informs but is tested by critical practice
and that there is a range of legitimate positions between radical and conservative.
D
I want to go further than Wright, and discard the idea of ‘legitimacy’, with its
overtones of higher authority. I also want to reject the suggestion of the necessity
to occupy a fixed ‘position’. Ironically - and it’s an irony that I’m fully aware of,
and can live with - given that I want to discard the notion of legitimacy, I want to
make legal practice a model for academic literary studies practice. And the way I
5
6
7
The Times Literary Supplement, 29 December 1989-4 January 1990 at 1445.
He says of the Marxist critic Peter Widdowson’s Hardy in History that ‘Widdowson’s
‘critiography’ of Hardy is provocative and refreshing, and many of the observations contained
here are excellent; but I suspect that Tess will continue to be more widely read that The Hand
OF Ethelberta because readers cannot refrain from thinking one novel better than another, for
whatever dubious ideological reasons’.
Millard, Letter to the Editor, The Times Literary Supplement, 26 January-1 February 1990 at
89.
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describe this model is as follows: while a lawyer may think of herself or himself as
principally an equity lawyer, a family lawyer, an administrative lawyer, a criminal
lawyer, it would be professionally fatal to take that idea too seriously, to believe that
one was behaving illegitimately, or intellectually or professionally unconscionably
if one introduced into one’s method of doing one’s job the ‘taint’ of other approaches.
The fact is that the competent lawyer brings to the task in hand the tools best suited
to it. Those tools may be as heterogeneous as: common law, equity, statute law,
commercial considerations, tactics. In the place of ‘legitimate positions’, I’d seek
to place effective strategies.
The question of how one judges effectiveness is beyond the scope of this article.
The reasons why I advocate this approach will be advanced at the article’s conclu­
sion.
The object of my demonstration of the approach is Congreve’s The Way of the
World, a peculiarly appropriate choice for a ‘Law and Literature’-generated critical
approach, epitomising as it does the period before what Brook Thomas calls ‘the
break-up of the law-and-letters configuration’.8 Indeed, in English terms9 Restora­
tion Drama constitutes perhaps the high point of the ‘law-and-letters configuration’.
Wycherley, as well as Congreve, read for the Bar, the Inns of Court furnished much
of the audience for, as well as famous practitioners of, Restoration Drama.
The Way of the World is a play about trust and about trusts. My approach to the
play is two-fold, combining an analysis of certain crucial aspects of the text which
suggests that they have determinate meanings, with strategies informed by post­
structuralist literary theory which seek to expose the operation of textual and social
power. This two-fold approach is employed in a feminist reading of the text. I do
not propose to establish a theoretical genealogy for that reading: to paraphrase
Stanley Fish, eclecticism is at the heart of this reading as it is of the strategy which
produces it.10
The most famous ‘legal’ aspect of The Way of the World is the ‘proviso scene’ in
Act Four, the scene during which the hero and heroine, Mirabell and Millamant,
agree to marry. Their bargaining, and the ensuing ‘contract’, set out in detail their
requirements of a marriage partner. The scene, a virtuoso performance of this stock
element of Restoration Comedy, has tended, like the play as a whole, to attract
sentimental readings which argue for its championing of a measure of sexual
equality, or of feminism. Smith has written of the scene:
Congreve does not follow the more popular pattern of the older time, in which
the man and woman were on equal terms, with the woman - if either of
them - pursuing, but the pattern in which the woman has gained an initial
8
9
10
B. Thomas, Cross-Examinations of Law and Literature: Cooper, Hawthorne, Stowe
and Melville 15 (Cambridge U.P. 1987).
Thomas’ thesis is substantially American.
See Fish, supra note 3 at 23.
1991
FIDUCIARY DUTIES
75
advantage, so that the man must pursue. Here the woman has so much the better
of it that in hands less skilled than Congreve’s the game would have collapsed.11
Jeffares has written of the play:
Personal feelings are concealed beneath the witty surface of conversations; the
misfortunes of lovers are converted into a natural harmony, and the play
dismisses appearances, a living of life merely on the surface, in favour of
probing into the possibilities of deeper, more lasting and more complementary
relationships between men and women.12
Muir has said of Millamantthat ‘she had a “genuine intelligence”, and...she was
a match for Mirabell, the character in all Congreve’s plays which comes closest to
being a self-portrait’.13 Even a recent critic like Kroll, who essays a sophisticated
discursive reading of the play which attempts to address its employment of legal
language and its exploration of ‘juridical and forensic issues’ can write that
Act 2 establishes the equality of [Mirabell’s and Millamant’s] relationship at a
level of ordinary social discourse - as wits, they are well matched. But
Millamant’s control of the world of natural discourse results in her obtaining
the power of knowledge over Mirabell: he cannot hide the signs of his love for
her, a fact that Millamant taunts him with...we can read Millamant’s control of
figures as itself a figure for the political ambitions of Congreve’s play.14
He assumes that the play’s political ambitions are to expose the ‘precarious
position of any woman in a man’s world’ and, implicitly, to argue for the rights of
woman. Elsewhere, he claims that the proviso scene becomes an argument for a
‘patriotic society’.15 I would argue that die proviso scene, like the play as a whole,
is a didactic piece informed by the assumptions of a patriarchal society, unable to
transcend that society’s ways of seeing, and that Kroll’s evident ignorance of the
principles of equity leads to a chronic misreading of the play’s politics.
Muir has shown that Millamant’s quotations from Waller and Suckling, which
introduce the proviso scene, see her articulating the philosophy of male libertinism
and its development, the desirability for men of male sexual sublimation.16 Simi­
larly, the proviso scene consists not in the negotiations of equals, but in Millamant
spelling out what freedoms she wishes to maintain in marriage, and in Mirabell
spelling out what freedoms he’ll allow her.17 His restrictions are clearly produced
by his fear of being cuckolded. The most striking of Mirabell’s strictures on
Millamant is his proscription of
11
12
13
14
15
16
17
J.H. Smith, The Gay Couple in Restoration Comedy 186 (Octagon 1970).
Jeffares, Introduction, to W. Congreve, Incognita and the Way of the World 27 (A.N.
Jeffares ed. Edward Arnold 1966).
K. Muir, The Comedy of Manners 19 (Hutchinson 1970).
Knoll, Discourse and Power inThe Way ofthe World, 53 English Literary History 727 (1986)
at 734.
Id. at 750 and 753.
See Muir, supra note 13 at 117-118.
With the sole exception of Mirabell’s retort that “Then I’ll get up in a morning as early as I
please”.
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all strait-lacing, squeezing for a shape, till you make my boy’s head like a
sugar-loaf, and instead of a man-child, make me the father to a crooked billet.18
Those who see the play as advocating a measure of sexual equality, or as feminist,
are confounded by the declarations of love of Mirabell and Millamant, and by the
closing exchange between them. Mirabell can discourse wittily on the theme that
‘A fellow that lives in a windmill has not a more whimsical dwelling than the heart
of a man that is lodged in a woman’19. Millamant enunciates a truth demonstrated
by the marriage of the Fainalls: ‘if Mirabell should not make a good husband, I am
a lost thing - for I find I love him violently’20. The final exchange, for all its sexual
double entendre, enacts Mirabell’s position of power within the marriage:
Millamant: Why does not the man take me? Would you have me give myself
to you over again.
Mirabell: Ay, and over and over again; for I would have you as often as
possibly I can...Well, heaven grant I love you not too well, that’s all my fear.21
More interesting and more crucial to the play than the proviso scene is the
powerful and disturbing interchange between Mirabell, and his former mistress, Mrs
Fainall, in Act Two. The dialogue reads as follows:
Mrs Fainall: While I only hated my husband, I could bear to see him; but since
I have despised him, he’s too offensive.
Mirabell: Oh, you should hate with prudence.
Mrs Fainall: Yes, for I have loved with indiscretion.
Mirabell: You should have just so much disgust for your husband as may be
sufficient to make you relish your lover.
Mrs Fainall: You have been the cause that I have loved without bounds, and
would you set limits to that aversion of which you have been the occasion?
Why did you make me marry this man?
Mirabell: Why do we daily commit disagreeable and dangerous actions? To
save that idol, reputation. If the familiarities of our loves had produced that
consequence of which you were apprehensive, where could you have fixed a
father’s name with credit, but on a husband? I knew Fainall to be a man lavish
of his morals, an interested and professing friend, a false and a designing lover;
yet one whose wit and outward fair behaviour have gained a reputation with
the town enough to make that woman stand excused who has suffered herself
to be won by his addresses. A better man ought not to have been sacrificed to
the occasion; a worse had not answered to the purpose. When you are weary
of him, you know your remedy.22
This scene has caused the critics much difficulty. Given the tendency to read
Millamant and Mirabell as heroic modem lovers,23 it’s not hard to see why the
18
19
20
21
22
23
This and all future references are The Comedies of William Congreve 381 (E.S. Rump ed.
Penguin 1985).
Id. at 352.
Id. at 382.
Id. at 407-408.
Id. at 345-46.
See for example Bernard, PASSION, ‘POETICAL JUSTICE’ AND DRAMATIC Law IN THE DOUBLE
1991
FIDUCIARY DUTIES
77
cynicism and brutality of Mirabell in this scene might be problematical. During a
bewildered catechism about what ‘attitudes towards love and marriage lie behind
these remarks,’ Love24 asks:
Why did not Mirabell marry her himself? If he simply thought she was not
worth it why does she accept this so calmly? Was it that she had had other
lovers? Did the affair come to an end with the marriage or did it continue?
Could the point of the scene be to show Mirabell as a cold-hearted Machiavel
and Mrs Fainall as a gullible simpleton; or is there some unspoken, inviolable
canon known to contemporaries but not to us which would have justified it?
And what is the remedy Mirabell mentions? Is it simply to reveal her financial
independence to her husband? Is it to take another lover?25 Is it for Mirabell
to pick a quarrel with Fainall and kill him?26 All these and many other
possibilities present themselves the moment we try to ask why people should
think about such things in such a way. Even Mrs. Fainall’s initial complaint is
ambiguous. Is it being married at all under the circumstances that she objects
to or being married to Fainall in particular? Whatever the answers - if there
ever were answers - it is abundantly clear that, despite the apparent un­
satisfactoriness of Mirabell’s actions and replies, Mrs. Fainall is still very well
disposed towards him, and is prepared to accept his reproof quite as meekly as
she has accepted his designs against her mother. This would argue powers of
persuasion of no ordinary sort
The scene makes clear that Mirabell did not marry her because he did not wish
to: she was at the time a wealthy widow, and she feared that their affair might result
in a pregnancy, but no barrier to marriage stood in his way. It is clear that he prefers
the wealthy, upper-class virgin, the majority of whose property will apparently
become his on marriage by the law offeme covert,27 to the widow who has engaged
in extra-marital sexual relations with him, and whose property is to a significant
extent beyond his control, either because it is real property or because it is held on
trust for her. Mrs. Fainall accepts this ‘calmly’ - my expression would be ‘with
anguished resignation’ - because she has no choice. Mirabell, the man, has the power
in contemporary sexual economics: it is he who must initiate such action. Mrs.
Fainall’s initial complaint is far from ambiguous: it is ‘my husband’ and ‘this man’
of whom she speaks. Mirabell’s ‘powers’ are powers peculiar to his gender,
conferred by an intensely patriarchal social order, not ‘powers of persuasion’.
24
25
26
27
Dealer and the Way of the World in W. Congreve 109 (B. Moms ed. Ernest Benn 1972);
B. Dobr£e, Restoration Comedy 146 (O.U.P. 1924); and A.L. Williams, An Approach to
Congreve (Yale U. P. 1979).
H. Love, Congreve 92-3 (Blackwell 1974).
The play provides no potential “other lover” for Mrs Fainall. The male characters are interested
in the unmarried women, principally the wealthy virgin, Millamant, and to a lesser extent the
unmarried Marwood.
There is no suggestion that Mirabell, whose aim is to secure Millamant and the entirety of her
fortune, has any desire to do so.
It is arguable that the terms of her trust are that it is to be wound up and the property distributed
upon her marriage.
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However it is in his reading of the final line of the exchange that Love gets its
meaning most wrong. He is not alone, of course, in misreading the play’s legal
language and plot, for such misreadings are endemic in critical glosses on the
operation of the principles of equity in the play. Taylor has claimed that Mrs.
FainalTs property was conveyed in trust to Mirabell by a will; it was conveyed by
a deed inter vivos.™ Novak has said that Fainall ‘has a legal right to his wife’s goods
under the law offeme covert' 28
29 In fact the point is made that she has settled the best
part of her estate on him in a marriage settlement. Presumably this included her real
property; the prior conveyance in trust to Mirabell which defeats the settlement is
of the whole of her ‘estate real’.
Perhaps the best reading of the meaning of the final line of the exchange between
Mirabell and Mrs Fainall is given by Ian Donaldson, who writes:
Mrs Fainall’s ‘remedy’ is in fact the deed ofconveyance which she has entrusted
to Mirabell, which will ensure her financial independence. We do not know
this until right at the very end of the play, by which time this particular line will
almost certainly have been forgotten, and the subtlety of the reference lost. The
obvious and immediate way to take the line is to assume that Mirabell means
that Mrs Fainall may return to be his mistress any time she pleases.30
There is no question that Donaldson’s first statement is correct. I will go on to
show why this is so and suggest why a contemporary audience would have been
rendered so alert to it that they would not have lost the subtlety of the reference. I’ll
start, however, by saying that Donaldson’s gloss on the ‘obvious and immediate way
to take the line’ is deaf to the tone of the exchange. The brutality of Mirabell’s
approach hardly signals an invitation to treat: indeed it seems to operate as a
deflection of Mrs FainaU’s apparent willingness to reinstitute relations. The tone of
her reply confirms this. She stands rebuffed, saying ‘I ought to stand in some degree
of credit with you, Mirabell’.31
What proves that it is a legal (to use that word in the broadest sense) solution to
Mrs Fainall’s problem which Mirabell alludes to here is the text itself. ‘Remedy’
had acquired the meaning ‘legal redress’ by 1450. As one of its earliest meanings,
a ‘means of counteracting or removing an outward evil of any kind; reparation,
redress, relief’32 suggests, it has particular affinities with equity. One speaks of the
law of tort, or contract, say, or other branches of common law, but of equitable
principles or doctrines, and remedies. In the lines which follow ‘When you are
weary of him, you know your remedy’ there is a concentration of legal words and
references: ‘justice ’, ‘ privy ’, ‘ whom have you instructed to represent your pretended
28
29
30
31
32
D.C. Taylor, William Congreve 148 (Russell and Russell 1963).
Novak, Love, Scandal, and the Moral Milieu ofCongreve's Comedies in CONGREVE CONSIDERED
28 (I.A.Williams and M.E. Novak eds. William Clark Memorial Library 1971).
I. Donaldson, The World Upside-Down: Comedy from Jonson to Fielding 135 (Oxford
U.P. 1970).
Rump, supra note 18 at 346.
The Oxford English Dictionary (O.U.R 1989).
FIDUCIARY DUTIES
1991
79
uncle’, ‘[he] may win her to your interest’.33 There are also two references specif­
ically to trusts and fiduciary obligations. Mirabell says ‘ [I have] put it in your power
to ruin or advance my fortune,’ and later that ‘If your mother, in hopes to ruin me,
should consent to marrying my pretended uncle, we might, like Mosca in The Fox,
stand upon terms’34. 35
By giving Mrs Fainall information about his plot to secure her
mother’s consent to his marrying Millamant, Mirabell has made her a kind of
fiduciary. She subsequently breaches her fiduciary obligations by being indiscreet
with Foible and being overheard by the villainess Marwood. The reference to ‘The
Fox’ - Jonson’s play Volpone - is even more significant: that play, like this one, is
resolved by the revelation of a trust, the existence of which has been secret.
Lord Mansfield said in 1759 that ‘trusts are made to answer the exigencies of
families...without producing one inconvenience, fraud, or private mischief’“...Eq­
uity, in the sixteenth and seventeenth centuries, made it possible for a married woman
to have enforceable interests in personal property and certain types of real property
rights: the common law did not achieve this until 1882.36 This is not to suggest that
equity was an early feminist: it has been noted that
the aim of the Court of Chancery had throughout been not so much to increase
the property rights of married women generally, as to enable a person (e.g. a
father) who gave to, or settled property on a woman, to ensure that she, even
though married, would possess it as her own, and be able to deal with it
separately from, and independently of, her husband, who, be it added, was, in
the view of equity lawyers, the ‘enemy’ against whose exorbitant common-law
rights the Court of Chancery waged constant war.37
It is essential here to realise that a fiduciary is a person ‘bound to exercise rights
and powers in good faith for the benefit of another’.38 The relation of trustee to
beneficiary under a trust is a well-known example of this relationship. The word
fiduciary was from the late sixteenth century associated with the law of trusts.39
Sealy has demonstrated that ‘matters of confidence in earlier times covered a good
deal more than trusts of property as we know them today. ’ He gives a list of examples
of early categories of fiduciary relationships:40
A was said to have confidence reposed in him by B not only where B had
entrusted A with property to hold and deal with on behalf of himself or others
- as in the trust strictly so called - but also where A undertook to exercise a
power, to conduct a sale, to supervise an estate or business, or in some other
33
34
35
36
37
38
39
40
Rump, supra note 18 at 346.
Id.
Burgess V. Wheate (1759) 28 E.R. 652.
See A.K.R. Kiralfy, PonER's Historical Introduction
to English Law and Its
Institutions 594 (Sweet & Maxwell 1962); I.J. Hardingham and M.A. Neave, Australian
Family Property Law Chap.l (Law Book 1984).
A.V. Dicey, quoted in Hardinghamand Neave, supra note 36 at 10-11.
J. Burke, Osborn’s Concise Law Dictionary 146 (Law Book 1976).
Supra note 32.
Sealy, Fiduciary Relationships, 20 CAMBRIDGE L. J. 69 (1962).
AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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way to become B’s employee or agent. Confidence was also reposed where B
was dependent on A’s advice, perhaps because A was a professional adviser or
expert, or more familiar with the subject matter; because A was on the spot and
B at a distance; or because A was a trusted servant or friend, or a person of
dominant character or position who was able to influence B’s decisions. Again,
confidence might be induced where A by word or conduct represented to B that
he would deal fairly with him. In all these cases the broad principle applied
was that if confidence is reposed, and that confidence is abused, a court of equity
shall give relief.41
There are two trustees in the play: Mirabell, trustee of all of Mrs Fainall’s real
property under a trust of which only they are aware until the play’s denouement; and
Lady Wishfort, who is Millamant’s trustee, and also trustee for Mrs Fainall, her
daughter, as to part of her property. The terms of Millamant’s trust mean that if
Millamant marries against Lady Wishfort’s wishes, Lady Wishfort is entitled to half
the property which she holds on trust for Millamant. Lady Wishfort’s unfitness for
trusteeship is suggested first by her basing her decision not to consent to Mirabell’s
and Millamant’s marriage on her own thwarted desire for Mirabell. It is confirmed
by her incapacity to resist Fainall’s demands that she complete the formalities
necessary for the property of Mrs Fainall which she holds on trust for her to be made
over to him.
There are other fiduciaries in the broader sense of the term: Mrs Fainall and the
servants Waitwell and Foible. They know the details of Mirabell’s second plan to
obtain Millamant and the entirety of her fortune.42 The lack of discretion by
Mrs Fainall and the maid Foible, in breach of their ‘fiduciary’ duties, confounds this
plan. Sir Wilfull Witwoud has been his half-brother Tony’s guardian: as such, he
set him to be an attorney’s clerk. The propriety of Sir Wilfull’s carrying out of his
obligations is suggested by what Tony becomes when he attains his majority and
moves from Sir Wilfull’s control; as his fitness for the role of fiduciary is demon­
strated by Sir Wilfull’s participation in the defeat of the villains. Sir Wilfull, after
all, is a justice of the peace and presumably well schooled in fiduciary duties. There
is yet another pair of fiduciaries in the play, if we give the word its widest sense.
The play authorises the perception of the husband’s role in marriage as fiduciary. It
is to Mrs Fainall, whose husband has made her life intolerable by acting in his own
interests and against hers, that Millamant makes the confession which, in the absence
of the protection offered by equity to some women of the time, would be a dreadful
truth:
if Mirabell should not make a good husband, I am a lost thing.43
41
42
43
Id. at 69-70.
While Fainall’s first formulation of this demand indicates that it is his wife, as beneficiary (and
presumably absolutely entitled although not sui juris) who must transfer the trust property to
him, it is clear from the second formulation of the demand that it is at least necessary for Lady
Wishfort to complete certain documentary formalities before this occurs. It is also necessary
for her to persuade her daughter to do so. 'This would clearly involve a breach of fiduciary duties.
Rump, supra note 18 at 382.
FIDUCIARY DUTIES
1991
81
The identification of husband as wife’s fiduciary is confirmed by the terms of
Fainall’s extortion attempt. He threatens Lady Wishfort that he will divorce her
daughter and thus expose her to scandal and make her a social outcast unless, inter
alia, his ‘wife shall settle on [him] the remainder of her fortune not made over
already, and for her maintenance depend entirely on [his] discretion’.44 *We know
Fainall’s track record as his wife’s ‘fiduciary’ too well for his wife to be sanguine
at this prospect. The trust placed of necessity by a wife in a husband in 1700 was
one which, if breached, promised the ruin of the wife.
Kroll has claimed that ‘the fact is that Millamant’s dowry remains undivided at
the end solely because Lady Wishfort is grateful to Mirabell. He has indeed shown
genuine legal wisdom, but in order to secure Mrs Fainall against her husband: the
effect on Millamant is indirect and purely fortuitous’.43 I disagree. What Mirabell
has shown is genuine equitable wisdom. The happy resolution of the romantic
comedy - that is, the obtaining of the consent of Lady Wishfort to the marriage of
Mirabell and Millamant - and the defeat of the villain Fainall represent the triumph
of the judgment and deeds of the models of fiduciary propriety. These are the ‘real
men’ of the piece. Mirabell is the hero, the most sagacious, witty and attractive of
the gallants of the town. Sir Wilfull is portrayed as intensely masculine: he is the
antithesis of the fops, who in Fainall’s view are but half men. By manipulating the
terms of Millamant’s trust in her interests, Mirabell and Sir Wilfull save half her
property from being transferred by Lady Wishfort to Fainall in part exchange for his
forbearing from divorcing his wife. Sir Wilfull later shows himself to be (trust)worthy by not insisting on the performance of the sham agreement that he and Millamant
should marry. Mirabell, by revealing his trusteeship of Mrs Fainall’s real property,
compels Fainall to abandon the extortion attempt: Fainall is exposed as a man
without property and thus without power, and no real man at all. Mirabell and
Sir Wilfull have shown Lady Wishfort by example how a fiduciary should act: in
the interests of the person(s) to whom she or he owes a fiduciary duty. Mirabell and
Sir Wilfull have taught Fainall a lesson about how a man should treat his wife, over
whom he wields power. That the power to teach such lessons is a masculine one is
confirmed - were it to need confirmation - by Sir Wilfull’s challenge to Mr Fainall
when he declares his attempt to force Lady Wishfort to assign half of Millamant’s
property to him:
I assert my right; and will maintain it, in defiance of you, sir, and of your
instrument. ’S’heart an you talk of an instrument, sir, I have an old fox by my
thigh shall hack your instrument of ram vellum to shreds, sir. It shall not be
sufficient for a mittimus or a tailor’s measure. Therefore withdraw your
instrument, sir, or by’r Lady, I shall draw mine.46
44
45
46
Id. at 399 and 403.
Kroll, supra note 14 at 734.
Rump, supra note 18 at 403.
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VOL 7
Shortly afterwards, Mirabell’s ‘prior instrument’s’ defeat of Fainall’s marriage
settlement is responded to by Fainall’s attempt to turn his sword on his wife.47
Feminised, his revenge for his loss of masculine power is turned not on the men who
have defeated him, but on the woman who has placed her property beyond his power
by investing title to it in another man, to whom she has previously conveyed her
person. It is Sir Wilfull and his ‘old fox’, as we might expect, who foil Fainall again.
I’d like to return in closing to the question of why I advocate the application of
the methods of legal practice to the academic practice of literary studies. As will be
apparent from my discussion of The Way of the World lam ad idem with Fish and
with Mailloux and Levinson4® when they argue that literary theory, literary criticism,
and the practices of legal interpretation are essentially rhetorical. There is another
reason, however, why the techniques of the practice of the one should be adopted in
the practice of the other. As Chris Baldick and Ian Hunter have differently demon­
strated, English literary studies began as, and have continued solely because of, their
professional application: that professional application is pedagogical.49 Successful
pedagogical practice, like the successful practice of the law, is directed towards
serving the interest of the clieni/consumer, regardless of what methods we draw on
to do so (providing of course in the case of the legal practitioner that his or her duty
to the Court is not breached). As those readers who are lawyers will know, the legal
practitioner is, or is in the nature of, a fiduciary of the client.
47
The^hallic connotations of this expression are made clear by the previously-quoted speech of
48
See Fish, supra note 3 and S. Levinson and S. Mailloux, Interpreting Law and Literature:
49
A Hermeneutic Reader (Northwestern U.R 1988).
C. Baldick, The Social Mission of English Criticism 1848-1932 (Clarendon 1983); I.
Hunter, Culture and Government (Macmillan 1988).