The Private Trustee in Victorian England (review)

Around the time of Queen Victoria's death, the great legal historian Frederic Maitland penned the following encomium:

The idea of a trust is so familiar to us all that we never wonder at it. And yet surely we ought to wonder. If we were asked what was the greatest and most distinctive achievement performed by Englishmen in the field of jurisprudence I cannot think that we could have any better answer to give than this, namely, the development from century to century of the trust idea. ("The Unincorporate Body" in Selected Essays [Books for Libraries Press, 1936, rpt. 1968]: 129)

A century later, the trust has grown all too unfamiliar within Victorian studies. Chantal Stebbings's comprehensive and lucid book takes a welcome step in rectifying this neglect.

For Maitland, the greatness of the trust (or its medieval predecessor, the "use") lay in its "powerful" ability to promote "social experimentation" in areas as diverse as feudal taxation, the inheritance of land, limited liability, and married women's property ("Unincorporate" 134-35). As Stebbings demonstrates, however, the trust was so familiar to Maitland and his contemporaries not for these exploits, but because the Victorians succeeded in domesticating it for middle-class consumption. In the eighteenth century, Chancery (the court of Equity) conceived of the trustee as "a landed gentleman bound by honour to accept an office which was more a paternalistic social duty than a managerial one" (13). Because trustees voluntarily embraced a "sacred" moral charge "with no receipt, indeed thought, of financial reward," the rules of Equity afforded the trustees virtually no rights (4). Instead, trusteeship was all about duty: the obligation of the trustee to safeguard the interests of the beneficiaries, typically women and minors who lacked the means to fend for themselves. Though never trivial, these obligations were relatively easy to fulfill when the aim of most trusts was to preserve a particular landed estate for future generations. As the nature of wealth shifted from inherited land to earned cash, however, trusteeship became much more of a middle-class enterprise—and much more "complex, technical, dynamic and demanding" (14). In particular, as "money, shares, debentures, and new forms of security came to dominate the sphere in which trustees had traditionally operated," trustees found themselves facing an array of complex financial decisions, held to a standard of care that grew more exacting in lockstep with the growing sophistication of the "prudent businessman" (13, 151). With the rise of an ethos of self-help, moreover, beneficiaries grew increasingly bold in holding trustees accountable for any perceived dereliction of duty, including poor investment decisions.

Rather than evolve new rules to accommodate the heightened burdens of trusteeship, Equity and Parliament insisted that trustees continue to be bound by "ferocious rules of personal liability" (131). "Any slip, any misjudgment, however honest and well meaning, brought with it the very real danger of a personal action of breach of trust, with few real defences" (104). This danger was exacerbated by the need for trustees to negotiate a range of increasingly tense relationships: with the settlor (the creator of the trust), with beneficiaries (often divided into warring camps of life tenants and remaindermen), and with co-trustees and agents (such as solicitors and surveyors). Stebbings devotes a chapter to each of these relationships, reminding us throughout that the increasingly thankless nature of trusteeship was no small matter. Though there are no accurate figures, by 1895 some believed that as much as one-tenth of all property was held in trust in Great Britain; others estimated the amount to be one billion pounds (5). Whatever the figure, the prevalence of trusts created a huge demand for trustees at the very time when trustees faced increasing liability. The result was a growing difficulty in the recruitment of trustees, which was little eased by the "piecemeal legislation" of Parliament in the latter part of the...