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First Among Equals follows four politicians from their first day in Parliament through more than 20 years in office, as each jockeys to become prime minister. His latest novel is FIRST AMONG EQUALS, the story of four men's battle to control our lives. Jeffrey Archer was born in and educated at.

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simon kerslake first among equals torrent

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This is how a certain modernist tradition has been able to pursue the inversion of values indefinitely, as one inversion begets another. Such radical inversion is not the rule in the world of high eighteenth-century libertinage. Once again, Casanova helps us to see this by defining the exception as such. What a dance the Fandango is!

It ignites people, and carries them away. Yet in spite of that I was told that most Spanish men and women who dance it do not see it as suggestive. I pretended to believe that. XI, ch. II, ch. VIII, p. In fact, there is something about this Spanish stereotype that became easily familiar to later times. But I knew that her resistance could not last long.

I simply had to advance gradually. It is emphatically not just a matter, as it usually was elsewhere, of getting beyond the mask of piety. He actually wonders, late in this episode, whether he might be unduly harsh in insisting that she not go to confession soon after yielding to his advances. There are two models here for the coexistence of values.

The other, which seems to be impossible in Spain but usual everywhere else — in the polished nations — is the partage, the reason- able distribution, the fair share. The partage seems in fact to provide an everyday model for policing ethics and aesthetics as Casanova and his fellows understand them. The objects of such assessments are typically women, and the questions posed about them cover a predictable range. To what degree is a given woman sensible, sensitive to pleasure? To what degree is she merely being coquettish?

May it not be that apparent reluctance is serving to mask her true desires? Is she capable, in private, of being unreservedly galante? These are not the questions that inform modern pornography, as it took shape in the nineteenth century. In fact, a defining feature of modern pornography might well be the confident assertion that, whatever the appearance or the circumstance, women are always filled with desire.

Yet it is not the case here that all feminine behaviour can be inter- preted according to a rudimentary hermeneutics of inversion, whereby any show of reluctance is a symptom of desire and all prudery hypocrisy. Just because there are hypocritical prudes does not mean that all modest women are hypocritical.

To complicate matters, or rather to widen the range of uncertainty, it should not be supposed that the symptoms of desire, when they occur, are unequivocal. In answer to a question posed by his interlocutor Cidalise, he goes on to say that three-quarters of all the women who have thrown away their respectability are not in fact naturally sensibles, or sensual: they are pretending to be so out of vanity.

Licentiousness is no more unmedi- ated than prudery: there is vanity and deceit on all sides, and uncertain judgement at every point on the spectrum. He actually tells how it was during his earlier incarnation as a woman: It seemed to me that, when I was a woman, I was very much amused by those who saw me as having considered ideas, whereas the ideas were pro- voked only by circumstance, or those who sought reasons for my actions when I was guided only by whim. Such people, with all their desire for intimate knowledge, never knew what I was thinking.

I was being sincere at moments when I was taken to be devious; I was thought to be coquet- tish at the very time when I was responding tenderly; I was moved, and people imagined that I was indifferent. They were always attributing to me a character which was not mine, or which had just ceased to be mine. There were people who had most to gain by knowing me, those with whom I was least given to dissembling, and to whom indeed, because of my natural indiscretion, or the strength of my feelings, I would reveal the most secret things in my life, or the truest feelings of my heart.

But those people were not the ones who were most inclined to believe me, or under- stand how I felt. They were determined to make judgments about me that confirmed their own view, and believed that they knew me well when they had arrived at a definition that suited them. And while women are preponderantly the objects of this uncertain interrogation of motives, it cannot be supposed that men are clearly legible subjects of desire. And the answer is far from straightforward: The vivacity of his desires, the strength of the opportunity, the charms which an imperfectly adjusted shift offered to his gaze, all of these things added to his delight that character of true passion whose source is not in the heart, but whose exterior is the same.

Instead of being demon- strably grounded, judgements are advanced with a show of care. But uncertainty does not breed disorder: a given woman is located, for example, within a classificatory range of epithets. The favoured expres- sions that perform this task are the standard marks of nuance in French. Every valuable quality is defined and hedged about by other, undesired ones. Fine judgement always seems to be some sort of partage, constituting the qualities on either side as poles of excess.

But the commonality of the excluded term is misleading. High libertinage cultivates fine discrimination in the place of what it considers to be bourgeois obtuseness: it does not simply seek the safe middle ground. Perhaps I can best point to the difference by looking at an experience that is itself framed as exemplary. He can move beyond this incarnation only by being present at the first encounter of two lovers who, in a decisive moment of passionate truth, happen to be making love for the first time.

He has set his sights on the young Armelline, visiting her every day in the parloir to talk to her through the grid, and then, by dint of ingenious planning, creating opportunities for more intimate contact. His moves to force the issue are initially unsuccessful, and he expresses his displeasure at this failure by not returning to visit her. The Mother Superior intervenes quite forcefully, saying to him: knowing human weakness, she would never have believed that, for three months, as we saw each other every day, we could have observed such strict limits.

XII, ch. Just as it is now scandalous to break off all relations. For this worldly Mother Superior, as for so many others around her, the space of proper behaviour lies in between. So when Casanova rehearses as a kind of slogan the statement that tous les trop sont mauvais, all excesses are wrong , vol. Casanova and his fellows are always ready to define particular forms of conventional vice and virtue as excessive, thereby claiming for them- selves the space of negotiation between the two.

In a world where virtue and vice are not strictly grounded notions, propriety is a matter of refined positioning. It is a matter of style. Virtue is defined conversationally, through the play of feminine resistance. Casanova can in fact be regarded as an exemplary libertine by the very fussiness with which he characterizes himself as such, and by the care he shows in using the epithet.

In the early volumes of his memoirs, the term is most often used about others, in a quite disparag- ing way. On a rare occasion when Casanova uses it — or lets it be used — about himself, he does so as a recognition of his dissoluteness. I, ch. To accept the epithet appears to be a gesture of atonement, or at least a performance of shame. The matter of his self-judgement as a libertine seems to evolve in the course of his memoirs, first coming to a crisis late in the third of the twelve volumes, when he assesses his role in relation to the young C.

He is in a position of trust with respect to her, but finds her very attractive: on leaving, I began to examine the character of my nascent passion, and found it to be cruel. I could not conduct myself with C. Casanova , vol. III, ch. Between the two is where he must work out his ethical style, although it should not surprise that he eventually permits himself to seduce C.

In the third volume of the memoirs, after frequenting the Cardinal de Bernis, then French ambassador to Venice, and his beautiful lover, the nun M. IV, ch. V, ch. It seems, in fact, that he will always maintain a spectrum of values, and never be so thoroughly libertine as to locate himself at one end of the range.

It may be indeed that Casanova does not always perceive a trenchant opposition between virtue and vice. Since Casanova is in fact both a libertine and a lover of virtue, he constructs no antagonism between the two, and therefore no call for dialectical inversion. On one occasion when he has paid the debts of a man in need and sorted out his own seductive business in the same move, he observes: That is how vice is allied to virtue, or bears its mask.

But I myself was drawn in, and had no wish to be disabused. All my life I was absorbed in vice, and was at the same time a passionate lover of virtue. Libertinage in practice is quite simply a set of stylized moves. Let us not speak here of hypocrisy, or even of inconsistency. The term is used to describe Miss X. VII, ch. And worst of all is the hateful Morosini, whose character is a veritable catalogue of ostensibly libertine vices: galloping around on horseback fit to kill his horses, with no fear of killing himself; drinking any sort of wine, never content until he had drunk himself senseless; procuring brutal pleasure with prostitutes, whom he often beat: those were his sole passions.

What better way to deserve indulgence than to be indulgent oneself? We must understand that it is just as appropriate — no more, and no less — to indulge libertines as to condemn them. True libertinage knows how to mark itself off on both sides. Casanova sought an accommodation with virtue, in the practice of ethical finesse, and his finesse included the art of timely forgetting.

We might say, in fact, that he took care not to be a grand libertin. Works cited Barthes, R. Lacassin, Paris: Laffont. Wald Lasowski et al. Desnos, R. Airaksinen, while advancing the tantalizing thesis that Sade was a pro- Kantian in his counter-ethics , p. Indeed, Kant may be considered a libertine in the other older sense of the term: a freethinker Freigeist.

His defence of free will and the dignity of individuals as ends in them- selves, his public critique of political absolutism and ecclesiasticism, his advocacy of a liberal legal system, the rule of law as well as the sanctity of private property — all were attuned to Enlightenment tenets.

Similarly, Sade resided within the range of Enlightenment practice and was decidedly not its darkest enemy. Indeed, his condem- nation of political oppression, his anti-clericalism and uncompromis- ing atheism equally accord with mainstream Enlightenment thought.

However, the tolerant spirit of free enquiry and freedom of personal thought intrinsic to Enlightenment logic could quite easily assume, as it did with Sade, a counter-direction to the utilitarian ethics of the Age of Reason. Kant and Sade also parted company in their approach to the phe- nomenon of sensationism.

In terms of the ethical ramifications of materialist epistemology, natural moral determinism required individuals to think and act in obedience to their natures. Sade, in a perverse twist of logic, seized on this imperative, but placed it in the service of his libertine ethics by positing, in crass opposition to the Rousseauian trust in the benevolence of Mother Nature, the omnipresence of a cruel, random and destructive force that set clear precedents for humans to commit wanton acts, including murder, with a clear conscience.

Plainly, there was no place for a subversive natural morality that aided and abetted the transgressive rationale of libertinage. For Sade, morality was simply an instrument of subjugation. Can such impulses be natural? Does Nature recommend what offends her?

Sade , p. Not only did he attack the hypocrisy of social mores by decrying the appearance or mere pretence of virtue on the part of self-interested do-gooders. Needless to say, Kant was no lexicographer of carnal pleasures. Nor is it unreasonable to suppose that Kant, like Descartes, considered the carnal aspects of human existence harder to fathom than the mental. His own pietistic background and celibate lifestyle rendered him far too coy to taxonomize the sensations associ- ated with human sexuality itself.

According to Martin Beutelspacher , p. The libertine convent and boudoir novel of the time is a French literary phenome- non. For Sade the narrativization of sexual fantasies knew no bounds. His voluminous fiction is at once an instruction manual for the sexually uninitiated or inexperienced and pornography aimed at sexual arousal.

In the case of Philosophy in the Boudoir, the additional cerebral stimula- tion of philosophical discourse punctuates the silences between succes- sive orgies. Kant argues further that once the sexual appetite has been satisfied, the object of desire is often cast aside as one would a lemon once it had been sucked dry , p.

However, this hypothesis is applied only to casual and extra- marital sex, and not to the union of two persons in matrimony. Indeed, consummated wedlock, according to Kant, not only ensures that both parties do not forfeit their personality or their humanity in the sexual act, but also removes the possibility of the body serving as an instrumentality of self-interested desire.

But the logic is surely flawed if coitus within the institution of heterosexual marriage is also conceived of as a means to an end, namely as the biological instrumen- tality for reproduction. Here Kant remains in essential agreement. Even though Sade celebrated the elasticity and resilience of the libertine body Warman , p. To the post-Holocaust age it vindicates the dangers inherent in turning the will-to-jouissance into a universal moral law.

The sexual practices Kant equates with crimina carnis contra naturam — and they include masturbation, homosexuality, sodomy, pederasty, bestiality and even intercourse during pregnancy — are deemed unnat- ural, not because they are in contravention of scriptural teaching Thomas Aquinas alludes repeatedly to the sins of self-abuse , but because they are not seen to benefit the human species. It follows that his objections to homosexuality and lesbianism derive from the same set of presuppositions.

One wonders how Kant might have responded philo- sophically and ethically to our Brave New World of surrogacy within same-sex marriage. Sade would undoubtedly have approached the latter-day phenomenon from a different angle, given his tendency to equate vaginal intercourse with a form of self-castration. Kant had a good deal to say about the responsible conservation of fluids from the orifices of the human anatomy.

Yet much of the discus- sion pertaining directly to sexual conduct borders on the idiosyncratic. Not that Kant made any emphatic reference to the body as a sacred vessel. Rather, every lost drop of bodily juice, he maintained, was detri- mental to health because such juices were valuable components of the life force itself.

Kissing, for example, should be avoided at all costs, to obviate the unnecessary discharge of saliva. Moreover, walking at a slow pace during the heat of summer is recommended as a way of min- imizing the excretions from sweat pores. Similarly, in On Pedagogics , published in the year prior to his death, he counselled adolescents on the dangers of masturbation as a contributor to premature ageing and the impairment of the mental faculty , p.

On the subject of wasted sperm through fellatio and coitus interruptus, Kant remained silent. Clearly though, Kant was not in the business of prescribing a range of physical, psycho- logical, pseudo-medical and hygiene-motivated deterrents to male self- gratification, such as the panaceas suggested by the formidable German enlightener S. To the libertine debauchees of Sadean fiction nothing could have appeared more absurd than the public hysteria sur- rounding the non-reproductive spillage of semen.

Sade makes an identical claim in Yet another Effort, pleading in the same context for the decriminalization of sodomy , p. In short, the Sadean stance identifies in the biological argument for procreation only one aspect of nature. The other is the imponderable of sexual passion, whose direction is not predetermined by the reproductive organs themselves Glaser, b, p. When it comes to sexual relations between parents and their chil- dren, Kant desists from moral judgementalism. He simply raises legalis- tic and ethico-social objections to the practice, not the least being its violation of parental guardianship Vormundschaft , the duty of trust and the very fabric of family life.

On the other hand, Kant remains equivocal about inces- tuous sexual relations between siblings, which he considers not to be categorically forbidden by nature , p. For Sade the libertine body, reconceptualized by Enlightenment science and philosophy as a machine, precluded per definitionem the application of moral parameters to its very functionality.

Kant could still speak of sexual love, as long as it was conducive to mutual wellbeing. Orgasm fails to bond. No psychic energies are released, only seminal fluid. Historically, Kantian sexual ethics, it seems to me, occupies the middle ground between a Judaic-Christian genital-centred sexuality linked almost exclusively to biological reproduction and a contem- porary psychosocial view of sexuality concerned more with the quality of partnership relations.

Yet this insight is sadly compromised by his antediluvian belief that our sex- uality embarrasses us because it reminds us of our similarity to irra- tional animals Wood , p. Sade, of course, is no less ardent a champion of ratio as the control mechanism of human behaviour. The choreographed sexual ballets of The Days, eluci- dated so ingeniously by Cryle , pp.

Whereas the categorical imperative demands that in a civilized society the freedom of the individual be circumscribed by the freedoms others have a right to enjoy, Sadean libertine sexuality is decidedly Fichtean in its defence of the absolute sovereignty of the individual, as well as anarchistic in its subversion of the social contract, Rousseauian or otherwise. But that is another story.

In the light of the above, it would seem that Lacan misread the progression from Kant to Sade. Nature could not justify virtue. On this point, see Jenkins , p. Works cited Airaksinen, T. Brooks, P. Carter, A. Caygill, H. Delon, M. Kleine, Stuttgart and Weimar: Metzler. Du Plessix Gray, F. Glaser, H. Jenkins, P. Kant, I. Heath and J. Schneewind, Cambridge: Cambridge University Press. Kant I. Gregor, New York: Abaris. Korsgaard, C. Lacan, J. Reinhard, K. CX, no. Seaver and A.

Wainhouse, New York: Grove Weidenfeld. Wainhouse and R. Seaver, New York: Grove Weidenfeld. Warman, C. Wood, A. XIII, pp. How did this charge gain substance and what was its purpose? What was it that allowed, perhaps even required, a continual slippage between stated philosophical principle and personal conduct? We can set about this analysis by summarizing briefly the charge of libertinage brought against Voltaire by three conservative polemicists.

As a rule, most women readers were said to applaud his productions uncritically, having been seduced by his brilliance. The notion of seduction was thus used to explain and devalue his popu- larity. Naturalists, Deists, and other Unbelievers, Walpurgis uses the terms libertins and philosophes as synonymous.

Voltaire is labelled galant — not just seductive, but promiscuous. II, pp. His Avertissement opens with a call to arms against the nouveaux philosophes Guyon , p. Led by their oracle, Voltaire, these philosophers announce to all and sundry that pleasures are legitimate Guyon , p. Again Voltaire is included in a diverse band of libertins, presented as one party that challenges moral and social codes. Guyon suggests that Voltaire attempts to cast doubt on an afterlife only because of personal guilt after a life of debauchery.

Thus, conservatives missed no opportunity to argue the moral danger posed to society by the nouveaux philosophes Guyon , p. Barry Ivker makes the point that If libertinism involves the elegant handling of erotic material or the use of a sensual tone in a philosophic argument, then Montesquieu and Voltaire and even Marmontel can be labelled as libertine writers.

And can we be clear, in any case, about the distinction between mild and strong? XIII, p. Around , libertinism seems to be defined in much the same manner on both sides of the Channel. But the newly philosophical dimension of libertinage was evidenced by the case of the Chevalier de la Barre, whom Voltaire sought to defend in the s.

Satire, philosophy and pornographic literature had a common source of inspiration Wald Lasowski , p. Even if we take it that Voltaire did not indulge in libertine practices, one must ask if his thinking was thoroughly libertine. Ridgeway , p. Like Voltaire, libertine characters sometimes enjoyed particular moral pleasure in forcing their oppo- nents to confront hypocrisy and inner contradiction. In that sense, Voltaire and other libertins needed religion, virtue, morality, laws and social rules if only to disturb and discredit them.

But should Voltaire be considered, as Cazenobe would have it , p. Yet in the same letter he argues for the primacy of spiritual love over sexual gratification. The point is that bodily and spiritual plea- sures are indistinguishable a, p. Voltaire uses Italian, not just as the language of passion, but for the sake of decorum.

Its sexual overtones were well established. Libertinage can be defined in terms of ethics and aesthetics. While certain behaviour in the eighteenth century may have been libertine, language associated with it continued to be refined. And Voltaire was an expert in navigating between decorum and licence. In his pub- lished works, he never stooped to the level of vulgarity apparent in his Cambridge Notebooks , vol.

LXXXI, pp. Several scenes in Candide contain the kind of titillat- ing sexual details one associates with erotic fiction, but the language remains tasteful. Candide may be said to fall into the broad category of the obscene, not just because of its anticlerical charge, but also because of its obvious erotic elements. It clearly shows the influence of the libertine novel, as much as the senti- mental. Exposing the clergy and indulging in descriptions of pleasure go hand in hand.

To this end, he employs all the linguistic strategies available to libertinage: innuendo, understatement, irony and lexical play among others. As Wald Lasowski demonstrates, libertine literature maintains a remarkable tension between decorous language and erotic transaction , p.

For an hour longer she dared to defend herself. Finally Monrose, the well-favoured Monrose Enjoyed all the rights of a recognized lover. He knew the pleasure of true happiness Voltaire , pp. Indicative of public demand were 47 editions before , quite apart from the numerous pirate editions and the ten translations into European languages.

Surprisingly, there were only three editions in the twentieth century, including the splen- did one by Jeroom Vercruysse, used hereafter. If women readers were not unduly shocked, why did the anti-Voltaire lobby adopt such an excessively critical stance? According to Vercruysse , p. From the outset, Voltaire had been aware of the dangers of poking fun at the legendary figure of Joan of Arc.

This sense of danger proved to be well founded: on 4 August , La Pucelle was con- demned to be burnt by the Public Prosecutor and was put on the index on 20 January , while a judgement by the Parlement de Paris dated 27 August decreed that it be pulped Voltaire , p.

Voltaire sees Joan chiefly through the eyes of a sceptic, but also goes out of his way to give an erotic edge to satire by representing Joan as a highly desirable young woman repeatedly harassed by men of the cloth. Treating Joan unpatriotically, as it happened, gave less offence than the licentious events that proliferated around the main storyline.

Vive La Pucelle! On 11 February , it is said visitors called to welcome him back. The polemical dimension of La Pucelle was vital to its success. Darnton , p. They did not bother about finer distinctions, because most forbidden books gave offence in several ways. For the bawdy elements in the text are enlisted in the militant attack on hypocrisy and prudishness.

But were the sexual desires of monks and priests not equally natural? Religious villains in the poem are usually most threatening for their sexual designs. Religious hypocrisy is mocked in almost every canto, while human love and happiness are elevated far above ascetism and enforced chastity. In his customary tongue-in-cheek manner, Voltaire is quick to argue in Canto VIII that he has celebrated the true secular virtues of innocence and honour; in brief that morality is not undermined , p.

Yet he barely pays lip service to such values, since throughout the story virtue is presented as relative. La Pucelle contains its full share of those stock figures, lascivious monks and priests , p. It is the false show of devotion that damns them, by contrast with true-hearted heroes like Monrose and Dunois. So there is no reason to see the burlesque elements in the story as undoing its seriousness. The title itself points to mutual implication of religious and sexual themes: Joan shares saintly qualities with the Virgin Mary, but she is continually called la pucelle, rather than la vierge.

This draws attention in French to what one might call the technical aspect of her virginity, the fact that her hymen has not been broken. Her virginal condition is a religious symbol, but it also constitutes one of the domi- nant topoi of libertine narrative. She wears armour, but is sometimes robbed of it and obliged to travel naked, with her beauty exposed for all to see. The early cantos of La Pucelle were read aloud to the Cirey circle in the s Voltaire , p. As the text of the Pucelle developed, the erotic elements, more prominent in the first eleven cantos, made room for more philosophical discourse, but the inner tension and mutual implication of the two ingredients remained.

Charming tit, that never rests, You called for the hands to press you, For the eyes to look at you, for the mouth to kiss you. Yet, in the very next line, Voltaire feigns mock scruples, as the tension reappears with a form of embarrassment: Ready to oblige my readers, I was about to reveal to their admiring eyes The soft contours of this beautiful body, When Virtue, also known as Propriety, Came to stop my excessively bold paint-brush.

Sexual detail may seem intrusive, but the narrative regularly turns on it. While she kneels in a chapel in prayer, a lascivious hermit priest, his eyes rolling, fails to recite the liturgy correctly. She plays a part in the bawdy scene, by drawing attention, quite literally, to the seat of pleasure. Such incidents do more than titillate the reader; they represent Joan as complex and virtue as far from absolute. In a parody of the temptations of Christ and Eve, the donkey attempts to deflower Joan who, though flattered and sexually aroused, resists in the nick of time , p.

Yet while Voltaire unashamedly exploited the language of libertinage, he did not seem to value indulgence over altruism. Eighteenth-century libertine fiction, according to Ivker , p. Voltaire espoused all four principles. He certainly advocated the natural right of every person to plea- sure and happiness, and good health meant a great deal to the inveter- ate hypochondriac.

But he also warned against all excess, in abstinence or in self-indulgence. XXXV, p. In the Questions of Zapata, his ethics are summed up thus: Has He [God] not given Man self-love to secure his preservation; benevo- lence and virtue to control his self-love; natural needs to form a society; pleasure to enjoy; pain to warn us to enjoy it with moderation; passions to spur us on to great deeds, and wisdom to curb our passions?

Besterman, T. Black, M. Darnton, R. Historical Essays in European Thought and Culture, ed. Micale and R. II, Paris: Briasson. Text and Interpretation, ed. Guyon, C. Ivker, B. Johnson, S. Larcher, P. Mason, H. Nonnotte, C. Pomeau, R. King, London: Harrap.

Ridgeway, R. CCCII, pp. Russo, G. CLXXI, , pp. Torrey, N. VII, ed. Voltaire [], , Candide, trans. Butt, London: Penguin. Mervaud, A. Brown, M. Cotoni, J. Monty, J. Moureaux, B. Schwarzbach, J. Vercruysse and R. Virolle, Oxford: Voltaire Foundation. LIX, ed. Jones, Geneva: Droz. XXVI, ed. Moland, Paris: Garnier. Besterman, Paris: Plon. Wald Lasowski, A. Clerval, J. Dubost, M. Saint-Amand and R.

Walpurgis, M. Williams, D. Johann Reinhold Forster, The Resolution Journal If recent publishing lists on the eighteenth century are any indication, ours is an era of renewed fascination with the aristocratic rake and the fine lady. For the former, the Georgian decades are represented as having afforded a limitless playground for the pursuit of pleasure and sexual gratification, for the latter, new opportunities for social mixing and the occasional discrete liaison.

This essay will return unrepentantly to the topic of female libertin- ism and Enlightenment categories of sexual difference. If male libertin- ism marked a bourgeois appropriation of aristocratic sexual privilege, then female libertinism marked a double transgression of gender as well as class. Between and in particular, war, colonial acquisition and loss, and anxiety over the fungibility of the national character made gender transgression and gender performance matters of fierce debate and public concern.

I will focus here on the exploits of Con Phillips —65 , sexual adventurer and memoirist, to examine how the scandalous woman incarnated the double standards on which Enlightenment notions of liberty, libertin- ism and gender were founded. This counterpoint of Pacific and Atlantic worlds not only hints at the limitations and global consequences of British constructions of proper gender roles. The female rake, then, marked the boundaries — national, geographical and moral — of Enlightenment explorations of unconventional sexuali- ties, and demonstrated the impossibility of women being accepted as independent sexual subjects.

Her proclivities for extravagance in dress and con- spicuous consumption also contributed to her fame, as she became a familiar figure on the London scene, parading from theatre to assembly room, pleasure garden and Court bejewelled and bedecked with finery and accompanied by a retinue of servants. Her writings added notori- ety to an already complicated reputation. An Apology for the Conduct of Mrs. Phillips was produced at a particularly impecunious juncture in her life, in part to blackmail the Earl of Chesterfield, a former amour, into paying her an annuity.

Phillips by her own account fell madly in love with Southcote, giving him money and jewels and sustaining his extravagance with her own until he abandoned her for the Grand Tour in III, p. Here bouts of pleurisy, aggressive creditors and ultimately the unending law- suits with ex-husband Muilman made the s an anxious and miser- able time.

She had no spectacular suitors or lovers, but supported her sister whose husband, an East India merchant, lived abroad in total disregard for her and their offspring and her children with the help of a number of male friends. While in the Rules, she began two more lawsuits, one against a crooked ex-solicitor, the other against the Marshal of the Prison for his fees. On her release she began threatening former lovers with exposure unless they gave her financial help, resulting in the serial publication of her Apology, which she was forced to sell from the window of her apartments, until around Muilman finally succeeded in bribing her to go into exile in Jamaica.

Her notoriety also rested on the particular features of her textual self-representation. In her Apology, Phillips deliberately identified herself and her plight with the higher-born heroines of sentimental English drama, and espe- cially the domestic tragedies of the late Augustan period, which contin- ued to be immensely popular after the Licensing Act had banished overtly political plays.

An avid theatergoer, she was familiar with the poetic justice that imposed death sentences or banishment on seduced ladies, and took evident delight in the ironic twist to these cautionary tales provided by her own survival. III, pp. Indeed, in persistently fighting back, Phillips exceeded the conventions of the female character.

Second, in a legal and political culture that rele- gated women to the status of subordinates to men, Phillips claimed the rights of citizenship in the public spheres of print culture and the law. Phillips appeared personally before hallowed judges to offer a spirited defence of her rights and character. The Female Rake Moreover, as a commoner who dares take on a lord, Philips single- handedly proffers a blistering assault on class and sexual politics that stresses her right to fight back against both male vice and aristocratic arrogance.

In the wake of the Richardsonian revolution, an outpouring of novels, pornography and conduct literature attempted to convey female interiority and to regulate female conduct Nussbaum In novels, plays and periodical essays, for example, these sexual suspects appear variously as evil temptresses and thus allied with Frenchness, foreignness and depravity , or more sympathetically as ladies whose triple accidents of beauty, frailty and poverty forced them to become wantons Nelson, ; Nussbaum ; Jones Such imaginative interpellations intersected with empirical developments.

The blight of prostitution was seen to plague the metropolis morally and physically in an unproductive waste of female corporeality, a crisis crystallized by the Penlez brothel riots of Jones The Rev. Not coincidentally, it was also in this period that social scientists had identified sexual mores and marriage customs as markers in the stages through which societies progressed from savagery to British civilization: here polygamy and the promiscuity of woman were held to be infallible signs of a lower stage of culture Nussbaum ; Wilson In these contexts, Phillips appeared to be a particularly dangerous and rebellious woman.

L tia Pilk ton , p. Phillips epitomized the excessive feminine influences that were causing a degenerate slide of the national character into effeminacy. At the same time, her extravagant lifestyle, proclivity for vulgar display, recurrent overwhelming debts and lavish attention to her own natural resources made it clear that she had taken the laws of imperial mercantile capitalism to heart, under- lining their contradictions in the process.

Phillips, then, was an excessively consuming female whose taste for the sensual, the sensational and the luxurious promised to enervate the nation and make it a colony of France. This aspect of feminine excess was further supported by her frank sexual desires on the one hand, and by her single-minded dedication to living off men on the other, exploiting her bodily assets to attain the lifestyle to which she felt she had been born.

A model of voracious womanhood, she was resolutely non-productive in a material and corporeal sense she never had children of her own, or, it appears, became pregnant , so that she could neither be made to fit into socially sanctioned models of maternity nor forced to bear the damning stain of illegitimate offspring.

But Phillips was also taken to embody a range of those attributes of West Indian Creole life that English observers were wont to decry. Indeed, at a moment when expanded concepts of civility — taste, refinement, discernment, generosity of spirit — were heralded as the essence of a superior English culture, the transcultured West Indian Creole seemed to exhibit exuberantly anti- thetical values.

Sensuality, indolence and love of luxury and display were said to be an endemic feature of white and black society in Jamaica by virtually every English observer from Sir Hans Sloane to Monk Lewis. Although these characteristics could be attributed by English observers to climate or felonious social origins, they were more often blamed on the gross mannerisms, savage temperament and promiscuous appetites of the black slaves and concubines which were understood to infect irre- versibly their white masters and mistresses.

Clearly, Phillips both reflected and shaped these associations of uncon- ventional sexuality and miscegenation with West Indian colonial life. Her multiple lovers, French connections and mulatto servants cemented her identification with the foreign, the dark and the uncivi- lized, demonstrating to her critics how her colonial adventures had further tainted an already corrupted sensibility. She was, in short, a domestic fierce savage, a woman who refused to be tamed.

Her fre- quent retreats to France and her peripatetic wanderings across the Atlantic all provided greater succour for her than did her experiences in the country of her nativity. Her final riposte to the land of her birth was, perhaps, to turn the ethnographic gaze back onto the metropole. Central, of course, to this taxonomic effort was the assessment of the place of women.

The gallant naturalist Joseph Banks, for example, revelled in the sexual alterity of Polynesian life to a degree that was taken to compromise his philosophical detachment. Characteristically Captain Cook was more measured in his assessments of the ladies, while also seeking to understand them within a global view of uniform human nature. British tars were certainly delighted that the favours of Tahitian beauties could be won by lengths of ribbon or pieces of mirror.

And J. Two points can be made by way of conclusion to the counterpoint of Pacific and Atlantic self and national exploration sketched in above. The female rake, as sexual agent, could not be accounted for except through the languages of primitiveness or deprav- ity, and it is through these languages that indigenous women and working-class British women come to be identified in the nineteenth century. More immediately, in the counter-revolutionary fervour of the s, female libertinage and savagery were conjoined in the potent and interlinked rhetorics of francophobia, evangelical social reform and Malthusian political economy to rein in unruly women and threatening femininities at home as well as abroad.

Con Phillips would have been appalled, but she would not have been surprised. Banks, J. X, ed. Bowring, Edinburgh: William Tait. Butler, J. Fuss, New York: Routledge, pp. Cook, J. Beaglehole, Cambridge: Cambridge University Press. Forster, G. Forster, J. II, ed. Hoare, London: Haklyut Society. X, London. Halberstam, J. Jones, V. Castiglione and L. Sharpe, Exeter: University of Exeter Press, pp. Kippis, A. Leslie, C. A Letter from Mrs. L tia Pilk ton to the Celebrated Mrs.

T-- sia Ph! Long, E. II, London: F. Nelson, T. XI, no. Nussbaum, F. Bermingham and J. Brewer, London: Routledge, pp. Orr, B. XVIII, pp. Parkinson, S. Phillips, T. Phillips, 4th edition, ed. P Whitehead, London: G.

The Female Rake Porter, R. Rousseau and R. Porter, Manchester: Manchester University Press, pp. Remarks on Mrs. Rowe, N, [], , The Fair Penitent, ed. Wollstonecraft, M. Brody Kramnick, London: Penguin. Cultural historians Lynn Hunt, Sarah Maza and Chantal Thomas have added a fresh and fascinating twist to this historiography by iden- tifying the affair as the source of a torrent of politico-pornographic writing directed against the body and morals of Queen Marie- Antoinette that had portentous effects on the ultimate shape of the Revolution Hunt , pp.

This thesis in turn enabled Jacobins to fashion a new and brutally misogynous revolutionary order. Drawing on metaphors of the gendered female body, as well as the philosophical authority of Montesquieu and Rousseau, male revo- lutionaries discredited the family-based monarchical state where royal women had once been accorded a political role, substituting a fraternal masculine republic — contractual, virtuous, transparent and free of feminine contamination.

It was she who in instigated what the nineteenth-century histo- rian Thomas Carlyle was to call the greatest lie of the eighteenth century. Having persuaded Rohan to underwrite and hand over a 1. Eventually arrested and prosecuted for the crime, she produced a series of best- selling legal memoirs that sought to deflect the blame first onto the Cardinal and his charlatan associate Count Cagliostro, then eventually onto the unpopular, Austrian-born Marie-Antoinette.

Most of the numerous secondary accounts of the Diamond Necklace Affair are unreliable because of the difficulty of negotiating the morass of lies generated in the various contemporary memoirs and histories of the scandal, although the pattern of lies is of considerable interest in its own right.

The most thorough and judicious surveys are still those of Vizetelly and Funck-Brentano Mossiker con- tains much useful material, but various editions of the sources are scrambled together in confusing fashion. Yet for the many litres of ink that have been expended on the Affair, Jeanne de La Motte remains a curiously shadowy figure. While she is the agreed villain in this famous story, her char- acter, motives and even the literary processes by which she blackened the Queen have been glossed over or taken for granted.

Only the near- contemporary Thomas Carlyle recognized her as a type of anti-genius, a supreme example of what he saw as the inherent sickness of the age of Enlightenment. Though female libertinism is relatively understudied compared with its masculine counterpart, cultural historian Kathryn Norberg , pp.

She narrates a journey to power and success through prostitution, representing herself as a philosopher with a healthy, sensual libido and a scorn of virtuous, domestic womanhood. She unashamedly manipulates gender roles, usurping or disclaiming mascu- line behaviours as it suits. Indeed, as a childless but never celibate woman, she defies the powerful trend towards reifying motherhood and family life which Hunt , pp. And although his fifty-year-old master, Cardinal Rohan, was himself a notorious playboy whose whoring had once scandalized the Austrian Court, Georgel thought him a babe in arms compared with the predatory Jeanne de La Motte.

Like many a courtesan of her era, Jeanne grew up in dire poverty and honed her wits as a child of the streets but, unlike most, she also boasted genuine noble qualifications. Jeanne knew him only as a wine-soaked derelict, reduced to stealing game and fruit from the land he had once owned, and married to Marie Giselle, the slatternly daughter of a lodge-keeper he had once employed DuBude Eventually, in , the family drifted to look for work around Paris, begging in the small bars off the Rue de Vaugirard.

Jeanne and her baby sister became the chief family earners, sent out onto the streets around Boulogne on daily begging missions. In March , in a park outside the village of Passy, she had the good luck to attract a neighbour of the famously philanthropic Marquise de Boulainvilliers. Soon after, the Marquise de Boulainvilliers became both patron and victim of this vagabond child with a sweet smile and a will of iron.

At the age of twenty Jeanne repeated this same winning formula by running away from the convent and throwing herself on the charity of the kindly wife of a local provost and judge at Bar-sur-Aube. Lawyer Albert Beugnot, another young man whom Jeanne enslaved in Bar-sur-Aube, came to know her perhaps better than anyone: Madame de La Motte was not what you would call a beauty; she was of average height but slim and buxom; she had blue eyes which were full of expression, beneath black, well-arched eyebrows; her face was a trifl e long, the mouth wide showing beautiful teeth; and what is perfect for such a type, her smile was enchanting.

She had beautiful hands, tiny feet. Her complexion was of a remarkable whiteness … she was devoid of all learn- ing but she had a great deal of quick penetrating wit. Beugnot , vol. The ruling obsession that made all her pain, humiliation and hunger endurable was to recover the lost lands and glory of the Valois bloodline. Her first meeting with the famously rich and sensual Cardinal Rohan showed all these hallmarks. It proved worth the effort. Jeanne had the perfect combination of ingredients to beguile the Cardinal: a sob story to touch his kindly, sentimental nature, the hauteur to appeal to his snobbish vanity and the beauty to arouse his notorious sensuality.

As Grand Almoner of France, officially entitled to dole out funds to hard- up nobility on behalf of the King, he handed her a purse and a promise to meet again. The next meeting with Rohan, in the summer of , needed preparations characteristic of the most cynically libertine of seductions.

By this time Jeanne was living in Paris, having taken furnished rooms on the top floor of a shabby hotel conveniently close to the grand Palais Cardinal in the Marais where Rohan lived when staying in the capital. Young Beugnot was working for her in the city as an occa- sional lover and a regular composer of legal pleas for the reinstatement of her lands.

Rohan firmly believed he was doing the seducing. A servant ushered her upstairs into the Salon des Singes where the Cardinal conducted private mass. A strange chapel this. On the wall, lacquer-coloured paintings by Robert Huet showed fleshy eighteenth-century nobles making love in Chinese costume. But these looked tame besides a series of grotesque miniature murals on the timber-panelled walls and altarpiece.

Each showed a scarlet-coated monkey in some obscene posture — one grinned lasciviously as it snuffed out a candle with its anus Mossiker , pp. Soon he was showing her a hidden door in the altar panelling that opened to reveal his bedroom. The next day Jeanne was exultant. A few weeks later she told Beugnot that she no longer needed his services. Now, with the Cardinal to milk, she had a new plan. She would locate herself in Versailles 22 kilometres south-west of Paris, and make direct contact with the Court.

By whatever means possible, she would lobby for restoration of the Valois lands. It is hard to imagine a more fantastic scheme than hers. How could this penniless adventuress hope to storm the most exclusive and protocol-bound court in Europe? Jeanne, though, did have two things going for her. First, Versailles was less a palace than a type of courtier state, so huge and amorphous that it had generated a parasitic underworld into which hustlers could blend.

Even so, the next few years tested these capacities to their limit. After moving into a series of dingy rooms at the Belle Image Inn, Versailles, she bombarded royal officials, courtiers and family members with requests for the restitution of her property and rights. She drove Controller-General of Finance, Charles Alexandre de Calonne, mad with her hectoring letters and persistent visits, eventually wheedling out of him a small increase of her pension.

This won her both money and a promise of support, but she squandered the opportunity by trying to repeat the stunt too often. Sometimes during this difficult period she was literally famished. The long-suffering Beugnot took her for a cheap meal occasionally and was shocked at how greed- ily she drank her beer and wolfed down two or three dozen cakes at a sitting.

A good way to look at the nature of newer forms of contract is therefore to use the analogy with risk management to tease out ideas, possibilities and questions. Before we do so, note that risk management in an organisation is ideally focused more on opportunity rather than on protection. It is managing with risk — of knowing how to go ahead while accepting uncertainty — rather than a management of risk, which implies minimising risk rather than maximising opportunity.

The same is true for a contract, except that now there are two parties involved, which brings in the additional issue of how the risk, for better or worse, is shared between the two. So therefore, as CAE is interested in promoting good practice in risk management in all its forms, it is interested in promoting newer and more effective forms of project contracts and their management. Uncertainty takes many forms, and has many sources and degrees. Ideally, the form of contract should not only deal with uncertainty, but should also be tailored to the precise form of uncertainty that arises in a particular project.

The uncertainty was partly to do with the very high rate of change of IT technology during the course of the project, but it also arose from changes in aims and changes in governance as the project proceeded. The project did not achieve its original objectives, and the subsequent Ministerial Inquiry questioned whether the form of contract used was appropriate for the high degree of uncertainty inherent in the process.

There are many sources of uncertainty in projects. Ministry of Justice, Wellington, New Zealand. The greater the complexity of a project, the greater the likelihood of unexpected and counter-intuitive occurrences. The more complex the situation, the less easy it is to describe it and predict its outcomes with any precision. For almost all projects it is not possible to know all the relevant information from the beginning, but for some the degree of uncertainty is very large.

Work involving foundations or soil behaviour is a case in point. This led to the development of the Observational Method, which is essentially a design-as-you go approach. It is sensible and effective, but it is seldom used, firstly because it does not fit well with traditional forms of contract, and secondly because clients have not liked to proceed with a project facing a high degree of cost uncertainty.

They would prefer to buy certainty by pushing the risk on to the contractor, at a cost. To some degree this is inevitable for every project. But traditional forms of contract are based on the fiction that change does not happen. There is a desperate grasping for certainty. A further source of uncertainty lies in inexperience.

It might be inexperience in a design or construction team, but it might equally well be inexperience arising from new materials or new methods of design, construction or management. There are other aspects of uncertainty. Factual uncertainty, for instance, can be contrasted with financial uncertainty. Moreover, the two are not independent. It might be appropriate to accept greater uncertainty in the expectation that, overall, the cost will be lower and the effectiveness of the project will be improved.

The main point, though, is that a project will always have an environment of uncertainty. It is crucial to match the form of contract to the uncertainty-environment of the project. So far we have talked of uncertainty rather than risk as a whole, which involves both uncertainty and costs or benefits. A key aspect of contract risk is the way in which the risks in a project are to be divided between client and contractor. The right balance must be found.

It is seldom sensible to try to put all the risk on one party. It is certainly not appropriate either, to try to hide the risks or to assume they do not exist. Some forms of contract might have clauses that quite inappropriately leave one party liable, even to the extent of increasing the total risk to the project. Every project is a process, and it is important that the contract should recognise this. The process view of projects is the central theme of a significant recent book on the construction industry.

Blockley and Godfrey take a systems approach, which is scarcely surprising as it could be argued that all substantial risk management exercises must be based on a system framework. This is no place to explore the characteristics of processes in detail. I make one point only, that an essential part of any process is feedback. Even the simplest tasks are impossible without feedback of some sort.

I cannot move a book from one point on a desk to another without seeing or feeling or hearing what I am doing. I need to know I am holding it, I need to see that it has reached the intended place, and I need to feel that it has left my hand. The analogy with contracts is that if they are to have a part in controlling the course and process of a project, then they must contain elements of feedback. Thus incentives or penalties related to performance are important. There are many types of incentive, and these are best related to the specific nature of the project.

For example, performance-based contracts for highway maintenance might include rent payable by the contractor for occupying the highway — a strong incentive for completing the job quickly. In its eleven chapters the book progresses from background ideas through descriptions of newer forms of contract to, finally, practical details such as dispute resolution. Chapter 1 argues that there are deep set cultural problems reducing the effectiveness of the construction industry, but that the new contract forms contain two major currents of change.

They are a change from an adversarial to a collaborative culture, and changes in the underlying form of contracts. I would add a third reason for change, which is that the development of modern methods for quantifying and formally specifying uncertainty can make for greater transparency of risk sharing in contracts.

Chapter 2 shows that there are fundamental problems of compatibility between the law and its tacit cultural assumptions and the needs and intent of contracts. It could even perhaps be said that good law is incompatible with good contract outcomes. The newer contract approaches have the ability to transcend the law. Hammurabi focused on draconian penalties for non-performance, which we can assume led to inevitable inefficiencies in Assyrian building practice.

Chapter 4 reviews risk management, and gives a rough taxonomy to help understanding. Watts, London. Chapter 8 discusses the culture change to collaborative working approaches such as partnering, with the benefits given as timely completion, cost predictability and job satisfaction. Chapter 9 deals with neutrals as part of the contract, which is common to all the new forms. Chapter 10 talks about causes of contract failure and gives stories of human failure.

Finally, Chapter 11 deals with dispute resolution, if disputes should ever occur. The expectation is that with the new forms, disputes would be rare, and this indeed seems to be the case. We also thank our two Peer Reviewers: John Burrows who, not content with presenting one of the key papers in the Conference, accepted the task of reviewing the book from a contract law perspective and Ron Holbrook who gave us the benefit of his technical and project management expertise when reading through the papers and providing us with his valuable comments.

Special thanks are due to all our keynote speakers and those who actively took part in the discussions and enriched the content of the Conference for the benefit of all who took part and — we hope — all who enjoy reading and applying the lessons contained in this book.

Finally, we would like to acknowledge the extensive contribution of Charles Hendtlass who has so ably managed the production and publication of the book. In Appendix B you will find descriptions of all the institutions mentioned in the first paragraph. The failure to achieve one or more of these objectives is a basic contract risk. Not all these risks can be foreseen and assigned to the parties by the contract; nor are they engineering, physical or financial risks usually covered by insurance.

Contract failure cannot be measured or described mathematically or assigned to clever computer models. It arises, first, from the basic documents that govern the human relationships involved in managing a contract, and second, from the general culture medium for the engineering industry in which the contract must be managed. Since the onset of the modern construction contract, which emerged from the Industrial Revolution and the great engineers of the time — the Brunels, Smeatons, Stephensons and Watts of the 19th century — the contract forms used in engineering had been gathering legal wordage, increasing in complexity, filling up with demanding language, and becoming couched in terms that fostered adversarial relationships among the parties.

The culture of confrontation was one of the dominant features of the construction industry over the better part of two centuries. The only winners in the traditional contracting game were those who could interpret the complex contracts to their own advantage, or those who lived on the fringes of engineering but reaped the fruits of the culture of disputology.

That has been fine, no doubt, for those initiated into the code, the civil litigation lawyers. But Lord Woolf 3 found that litigants were, in the main, not satisfied with the system. They criticized it for being too slow and far too uncertain, too expensive, incomprehensible to the uninitiated and too susceptible to abuse.

It describes the business of, on the one hand, creating opportunities for disputes and, on the other hand, attending to their resolution. Asian Dispute Review, May However, the s and s also saw many disastrous contracts — typified by the Kariba Stage 2 contract, and the demise of a major British contractor.

By and large, the construction industry had acquired a bad name. Huge increases in cost, delays in completion, crippling strikes, failed contractors and contract abandonment were all too common, and had a heavy cost for the whole economy. Could the responsibility for the poor performance of the industry be pinned on to one particular participant or stakeholder in the sector?

In some cases, governments, as the owners, refrained from employing contractors and resorted to their own forces — this was almost a blind alley for civil engineering in New Zealand where, until the s, most heavy civil construction work was carried out by the Ministry of Works, thwarting the development of a domestic competitive civil construction capability.

The survivors resorted to looking for loopholes in contracts and specifications, creating opportunities for pricing claims and variations and introducing quality shortcuts, forming pricing clubs, and squeezing their supporting subcontractors and suppliers. Many resorted to the expedient of low pricing to maintain an inflow of tendered work; moneys from the new contracts would plug the financial holes of the previous work, until the chain broke down.

Delays in payments eventually led to cost over-runs, or failures. This was particularly true in government-financed work — and it is still a problem in developing countries. Poor performance by the construction sector is intolerable for any country.

The construction industry and the learned institutions grouping consultants and engineers involved in the industry realised that reform was necessary, to bring a constructive, collaborative attitude and an environment incorporating all the participants. By the mid s, an inspired group of professionals, under the umbrella of the Institution of Civil Engineers ICE in London, started work on a new approach at contract drafting, looking for simpler, clearer forms, showing a fair allocation of risk, and incorporating processes to simplify contract management on the basis of solid logic and communications.

Those were two great currents of change. These led, on the one hand, to the emergence of the Disputes Review Boards4 and the formal incorporation of neutrals in contracts — later adopted more generally under various guises: the Adjudicators, Neutrals and Dispute Adjudication Boards now used in various forms of contract.

On the other hand, reform currents led to the issue of the New Engineering Contract of the ICE in , hailed as the first true reform of the Contract since the s. The new contract culture has thus resulted in approaches applicable where mutual respect and trust are present. A group of distinguished international and NZ speakers presented substantive papers to an audience of engineers, project managers, lawyers, arbitrators and contract experts.

In this book we present the conference papers as read by their authors, or edited into chapters that bring together various contributions, as well as additional information available after the event. The aim is to give the reader a well-rounded 4 The Disputes Review Boards have been formalised and become an accepted and well-tried contract devise.

Brief descriptions of the institutions that supported the conference, and summary biographies of the authors of the papers, are given in Appendix B. The law of contract has thus not been a satisfactory vehicle for regulating the tender process, or the relations between owner and subcontractor.

The interventions of the non-contractual tort of negligence have been erratic. The losses caused by all but the most cataclysmic changes of circumstance lie where they fall unless the contract provides otherwise. Nor have the common law courts been sympathetic to open-ended clauses, particularly those providing for future agreement or negotiation between the parties.

Unlike some other legal systems the common law has traditionally not recognised an obligation of good faith in negotiation or performance. Bluntly put, if the parties have failed to provide for something in their contract the law will not do it for them. And, finally, the remedies known to the common law are very limited: monetary damages and termination are the main ones. Some of these deficiencies can be put right by careful contract drafting; some cannot. They fulfil several functions. One is obviously to set out the fundamental obligations of the parties.

Another is to fill the above holes in the common law: where the risk of unexpected impediments is to lie; how variations are to be dealt with; the provision of additional remedies, such as suspension; and default mechanisms if the parties cannot agree. All these involve policy rather than legal decisions on which different minds may differ, and the different contracts do it in different ways. But such is the variety of commercial life that no-one could ever hope to foresee and provide for everything, so whatever the level of detail, cases will always arise where the contract does not provide a clear answer, and ingenuity can always find, or create, ambiguity.

So over time the contract will be amended to plug the gaps that have been found in it. This can lead to the document growing like Topsy and, quite often, the creation of new uncertainties. There are recent signs that the common law is becoming more flexible on some fundamental matters. There is a call for interpretation which emphasises commercial sense and purpose rather than the letter of the document; the courts appear to be getting more tolerant of agreements to agree; there is even talk of a requirement of good faith.

There is a movement towards plain English drafting of contacts. Recent developments holding considerable promise seem to me to be those which transcend the law of contract. The rapid modern development of alternative dispute resolution ADR offers an opportunity for more flexible, and hopefully amicable, resolution of the inevitable differences of opinion. There are difficulties with our traditional law of contract, especially the British model. There are signs that the courts are beginning to sort some of them out, but the pull of tradition is strong.

But however perfect our law of contract is now, or may some day become, it still cannot be expected to solve all problems that may arise in the course of a project. Life is too unpredictable. Some Features of the Law of Contract The British law of contract, which is the basis for much international dealing in the construction industry, is a rigid and formal construct created by the courts and rationalised by the text writers in 19th century England.

Agreement between the parties A contract requires an agreement, usually created by offer and acceptance, between two or more parties. It cannot bind people outside the relationship; a contract is a sealed compartment. That has several implications. Firstly, it has given the law a conceptual puzzle in trying to counter abuse of the tender process. On the traditional view there is only a contract when a tender has been accepted: a tender is an offer, and the acceptance of the successful tender seals the contract.

Unsuccessful tenderers have no contract with anyone. If an unsuccessful tenderer complains that the advertised tender process has been abused by the owner, the law has long found difficulty in finding a legal peg on which he or she can hang the complaint. Its effect is that the call for tenders is sometimes but not always an offer that the advertised process will be followed. It is accepted by anyone submitting a tender2.

That is a strange sort of contract; it would have been tidier to say simply that the law, quite independently of contract, expects good faith in the tender process, but we do not have the mechanism for that. Secondly, the pyramid of contracts in a construction project is complex and unique.

The rule that contracts bind only the parties to them means that subcontractors are not directly responsible to the principal, and in turn have no recourse against the principal. Engineers are not directly responsible to contractors or subcontractors. Only statute can rectify the situation, and New Zealand is currently making another attempt at it3: the last one failed.

Sometimes the tort of negligence, which operates independently of contract, can intervene to provide remedies for parties outside the contract relationship. But that has been unpredictable and erratic. In a very few cases subcontractors have been found liable in tort for negligent work4; contractors can sometimes be liable to subsequent purchasers of the building5; there is a difference between the UK and New Zealand as to whether a council and its inspectors can be liable to a building owner for negligent inspection.

That is evident from a recent New Zealand Court of Appeal case where a contractor sued an engineering company for alleged negligence in preparing a mechanical services specification that recommended a heating system that did not work. A tortious duty of care outside that framework, but affecting the rights and liabilities of the various separate parties coming within the very contractual setting, should not lightly be imposed.

The law of contract does not cope so well with long-term contracts which encounter unanticipated changes of circumstance during their performance. It is of course beyond the wit of a drafter, and the resources of language, to anticipate and precisely provide in advance for every eventuality which might happen over future months or years.

You cannot telescope the future into the present and cover all possibilities in a verbal formula. Yet despite this obvious truism, the law has traditionally been unforgiving when changes of circumstance do occur. Let me give a few examples. Firstly, British law regards contract promises as absolute. It will not absolve a party from performance, nor will it modify an obligation, just because it has 3 The Construction Contracts Bill - see below.

It will only absolve from performance if there has been a totally devastating external occurrence which has made performance impossible or virtually so. The case books are littered with examples of builders who have been held to their contracts without relief despite the fact that site conditions were much more difficult than anticipated; that labour was in shorter supply; and that prices of material had rocketed.

If they do not make just provision, the court will not do it for them. The next three examples demonstrate that. Thirdly, the doctrine of consideration which holds that a promise is not enforceable unless the promisor gets something in return for it means that agreed variations of the contract may be unenforceable unless the contract itself provides for them.

Recent authority has mollified this principle by providing that consideration is present if the variation results in a practical benefit for both sides11; but some contract purists have great difficulty accepting this triumph of practical reality over legal nicety. Fourthly, the law of contract has traditionally been unwilling to countenance open-ended contractual terms.

That is ostensibly for either of two reasons: that the parties, having acknowledged that there is more agreeing to do, cannot have intended to be bound yet; or that if the parties fail to agree, there is no standard by which an adjudicative body can fix the price for them. Agreements to negotiate terms in good faith have not fared much better.

The concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to pursue his or her own interest, so long as he avoids making misrepresentations.

To advance that interest he must be entitled, if he thinks it appropriate, to threaten to withdraw from further negotiations Judges have found the expression difficult to pin down; and I think there may be a suspicion, too, as to whether in the cauldron of commercialism much reliance can be placed on it. In respect of both these last two matters, there are recent signs of a change of attitude.

But despite this shift in attitude the Court of Appeal recently found a Heads of Agreement unenforceable simply because it left too much unsettled. At least one New Zealand judge, now retired, has argued strongly for it. It relates to the way courts interpret contracts.

In times past there was a tendency for the common law courts with a few exceptions to take a rather literal view of the interpretation of contracts, and indeed of all sorts of legal document. There could be an over-concentration on the minutiae of language and grammar, and a failure to place the words in context and to pay attention to the overall purpose of the contract. It was almost as if there was a belief that words have one plain meaning, and that you can discern it by poring over the four corners of the document without so much as raising your eyes or reflecting on what the contract was trying to achieve.

The result, in construction contracts, has sometimes been decisions which have been divorced from commercial reality. He instances such examples as the holding that a certificate of completion exempts the builder from all liability for defects, even where legal proceedings have been commenced before the certificate; and the holding that no extension of time could be granted in respect of stage 2 of a project despite the fact it had started late due to excusable delays in the completion of stage 1.

This old literal approach is fast disappearing. As recently as the House of Lords, in a judgment cited numerous times since, said something must be done about it. One should not be tripped up by the narrow literal meaning of words. It is hardly possible to disagree with that, but it is not without practical problems. It is a complex industry, and many lawyers, and I venture to say judges, have little experience of it. It is a big ask to require that within the narrow confines of the courtroom, constrained by the limitations of legal argument, they can ever become thoroughly familiar with this complex subject.

These problems have begun to manifest themselves in New Zealand in the four years since the House of Lords case, and have been the subject of terse comment in the Court of Appeal. One cannot but 16 Thomas J. Remedies The common law knows only two major remedies for breach of contract: monetary damages and, in the case of substantial breach, cancellation. It also has power, in some cases where a contract has fallen through, to award restitutionary relief.

Equity supplements this with the injunction an order not to do something and specific performance an order to perform the contract. These equitable remedies are effective, but are in the discretion of the court, and are seldom regarded as appropriate in building contracts. So at common law the remedies of damages and cancellation are effectively all there is.

They operate in an all-or-nothing fashion; that is a result of the adversary system. If you win you recover all your damages; if you cancel the contract it is terminated for good. There are no half measures. Restitutionary relief has grave limitations at common law too: if a lump sum contract was terminated before completion the builder got nothing if he was at fault. The common law had no means of spreading loss; the courts applied all-or-nothing rules rather than discretion.

In New Zealand we have some statutes — in particular the Contractual Remedies Act — that depart from that paradigm and allow a court some discretion to distribute money and property in a fair way, but we are exceptional in that. The Standard Forms of Contract I have outlined some features of the classic law of contract. The well-known standard forms of construction contract were developed at a time when that classic law was at its height. Let us now turn to the standard forms.

Their content Some of the problems which I have addressed cannot be solved by any sort of drafting: the rule that contracts do not bind third persons is one; the style of interpretation is another, because that is a judicial activity which cannot be dictated by the contracting parties. The parties can provide for their own allocation of the risks of unforeseen events, their own procedures for dealing with changes in circumstance, and their own remedies.

Apart from fixing the fundamentals like price and time, they provide the sort of detail of which I have spoken. Firstly, they all allocate the risk of future uncertain events: weather, price rises and so on. How they allocate those risks, and who bears the brunt of them, differs from contract to contract.

This is not a legal question, but a policy one which the industry and the contract drafters must sort out. Whether you agree with the solution depends on which camp you are in. Duncan Wallace said of the 5th edition of ICE that it moved risk unacceptably towards the owner. It is difficult to see why anyone with a full understanding of the practical consequences of the changes should have approved of the terms of the new contract on behalf of employers.

Unfortunately, however, he obscures any merit in his viewpoint by regarding contracts for civil engineering works as a battle between the Contractor — in dishonest collusion with suppliers and sub- contractors — and the Employer — aided by incompetent allies in 20 New Civil Engineer Nov 1, , reprinted in Duncan Wallace, The ICE Conditions of Contract 5th edn: A Commentary, at Secondly, the contracts have traditionally placed substantial responsibility on the engineer for approving variations, time extensions and payments, and deciding disputes.

There is of course much practical sense in having a single administrator and decision-maker. But what this also achieves is the advance prescription and objective certainty the law requires. The contract provides in advance for the possibility of variation, and provides a single mechanism removed from the parties for achieving it.

But the responsibility this has placed on the engineer is enormous, and, I think, pretty much unique in our law. The engineer is both an agent of the employer and an independent decision-maker. Modern contracts introduce other and more evidently neutral dispute adjudicators. Thirdly, most contracts provide for remedies, and modes of enforcement and dispute resolution, beyond anything the common law could achieve.

They provide for termination in a range of circumstances going beyond those which would justify cancellation at common law; they provide for suspension of work in defined circumstances. The old NZSS used to provide also for the interesting device of allowing the employer to take possession of the works: I see it has gone in the modern version. Moreover, the contracts tend also to provide for arbitration to resolve disputes, and the more modern ones envisage mediation and other forms of alternative dispute resolution.

It is worth noting that total exclusion of resort to the courts is not possible unless statute allows it; the legal system perceives the courts as the central enforcers, and any attempt to exclude access to them completely is illegal. But you can provide for another form of dispute resolution as first choice, leaving the courts as a second alternative. Also, as I said, statute can modify this. I note here also that the Construction Contracts Bill currently before the New Zealand parliament provides for a type of adjudication which can run concurrently with other mechanisms for dispute resolution.

Their effectiveness As I have said, the contracts contain much detail. In addition, some versions, 22 Sutcliffe v Thackrah [] AC at Drafters had just traditionally done it that way. There was also a resistance to change, based on a spurious fear that chaos would ensue if the old forms, encrusted with court precedents, were abandoned. Yet this style of drafting has real problems.

Firstly, it creates obscurity. The desire to be comprehensive often detracts from the need to be comprehensible. Communication comes second. Secondly, this desire to provide for everything can never achieve its object anyway. Complete coverage is unattainable. No one can predict everything that can go wrong with a project and provide for it in advance.

And language does not have mathematical precision: it is often open to argument whether a word or phrase is apt to cover an event which has happened. Sometimes even a phrase which can seem crystal clear in the abstract can be thrown into confusion when you try to apply it to some unforeseen contingency. So what happens? Even the most comprehensive contract will require interpretation, and cannot be thoroughly understood unless it is read in the light of numerous court cases interpreting its words.

Books have been written about the standard forms. Often those books, useful though they are, express doubts as to what some of the clauses mean. Another inevitability is that gaps are always being found in contracts; and, paradoxically, the more detailed and precise a contract is, the more gaps are likely to emerge. So the contract then needs to be amended and added to, and that can compound the problem. There are a number of promising developments. Other presenters will be more up to date with them than I am.

Here are some of the things that are happening. The courts and the common law The courts, and the law of contract, are in the throes of change, but much remains to be done. Precedent is hard to shift. I have already foreshadowed these developments. The new contracts The contract forms have been changing too. Plain Drafting There is a move towards plain English drafting, not just in contracts but also in statutes and other types of legal document.

I believe it works. Superfluous words, repetition and archaic expressions are eliminated; tortuous grammar is avoided; long sentences and paragraphs are broken up into shorter ones; the whole document is better ordered and flows more logically.

Quite often detail can be reduced and replaced by statements of principle. Plain English drafting does not always result in a shorter document, but it usually does it depends on the subject matter, and how much detail is necessary to do an effective job. I think construction contracts will always require a fair amount of detail.

When you see how good some of the modern drafting is it makes you wonder why we persisted for so long with the windy, verbose, traditional style. Some of the revised construction contracts are fine examples of what can be achieved. The drafters have virtually started from square one. The FIDIC is a much more elegant document than its predecessors, although no shorter: its comprehensibility is due to short sentences.

Ironically lawyers, long derided for their incomprehensible prose, have participated in this drive for clarity: the more tortuous jargon-ridden styles have now shifted to other professions. But there is one catch. More economical styles of drafting can make new demands on an interpreter. The less detailed the drafting and the more reliance on principle, the more one depends on an interpretation which is sympathetic to purpose and not entangled in literalism.

They are starting to appear in contracts other than construction contracts too. Because they are express terms, the courts in the rare cases that come before them have had to try to give them meaning.

This is new territory. For example s5 1 of the Interpretation Act contains 18 words, compared with 85 words in the version which it replaced. In every case his version is much shorter and clearer, and it is hard to find anything of substance that is omitted.

Partnering Some see partnering as the way of the future. The experiences of it, particularly in the United Kingdom, are reportedly most favourable. It involves the major players in a project agreeing on common goals and strategies and the maximisation of joint resources. They agree to work together in a spirit of goodwill, trust and cooperation.

Trust and teamwork prevail over the adversarial approach. Perhaps this is no more than a formalisation of what some businesses have been doing, de facto, for a long time. It emphasises good old-fashioned values like mutual respect. Socio—legal studies dating back nearly 40 years have shown that in many commercial dealings parties who know and trust each other make their dealings work without recourse to the law at all; indeed much of what happens in the performance and progress of their projects bears little relation to the strict legal position or even the wording of their contracts.

They rely on common sense, and sort things out as they go along. Partnering arrangements differ. Some are in the form of charters which may not be contracts at all ; others are more detailed and formalised. The view a court of law would take of them is unknown, and if they do their job as they are intended to may remain unknown. No doubt there are sceptics who will ask what happens if the relationship breaks down, or who will wonder whether cooperation could lead to a cosiness which encourages compromise.

But those with experience of the new system are most enthusiastic. Alternative Dispute Resolution Most of the newer forms of contract now provide for the resolution of disputes outside the courts. They doubtless take pressure off the engineer as well. NEC sets up an adjudicator. ADR has exciting possibilities. It is private, and, hopefully, quicker than court proceedings although not necessarily cheaper. It enables inventive solutions.

Imposed solutions based on rules sometimes do not work, especially if they are made by people who are not themselves as familiar with the practices of the industry as the parties themselves. Some contracts provide for a tiered succession of them to be undertaken in order. There may be doubts as to the wisdom of this several-bites- at-the-cherry approach. Lawyers may also reflect on a system which aims to keep the new forms of contract out of the courts: there would then be no binding law at all on their correct interpretation.

The nature, and effectiveness, of ADR is the subject of other chapters in this book. Statute Finally, in areas where the law has not operated smoothly, parliament can always step in with a legislative solution. In New Zealand that has happened more than in many other countries. Our law of contract is now peppered with statutes dealing with such matters as remedies for breach, mistake, illegality and misleading conduct. The new Construction Contracts Bill currently before Parliament in this country will impose a statutory regime, which cannot be contracted out of, on certain aspects of construction contracts.

Sometimes it can cut across them. The New Zealand bill, if passed, is going to require some relearning. Construction contracts have also been recorded in ancient Egypt, although the great works of antiquity — such as the pyramids — were usually developed as labour-only contracts.

An important stage of development of the construction contract was reached in Roman times. After the demise of the Roman Empire, and the ensuing period of obscurity in the Middle Ages, Common Law arose gradually, together with the principles upon which formal construction contracts would take shape in the Industrial Revolution.

The standard forms of construction contracts developed in Great Britain in the late 19th century were the precursors of the modern ICE and other institutional forms of contract. The Institution of Civil Engineers also took a further step forward, with the drafting and issue of the New Engineering Contract, which changed the literary style and management approach of the traditional forms.

Concurrently, a change in the culture of the construction industry, away from confrontation and towards collaboration, allowed the resurgence of contract arrangements based on mutual trust and respect among the contracting parties. In the following pages we review briefly the evolution of the engineering contract, as a preamble to the discussion of the current state of the art of contract drafting and contract management.

In collating this account, we have drawn from papers written by Martin Barnes, published in Civil Engineering, a journal of the Institution of Civil Engineers, London, from books published by Nael Bunni, and from various other texts on business law and contracts, listed in the footnotes. New Zealand, the Commonwealth and many other countries have drawn from that experience to formulate their own contract standards, as have the international development banks. A more specific approach is to define contract in terms of the element which is common to all contracts: a promise.

Even in trade based on barter, the exchange concluded the deal, and there was little or no recourse to further payment or adjustment of the traded goods. In other words, after the goods had changed hands, there was no need to offer or record a further promise regarding those goods.

Ancient History A culture of business and a market economy had to develop before contract law became necessary. The earliest recorded history of contracts being used as the basis for commercial transactions dates back to the Egyptian and Mesopotamian cultures of between 3, and 4, years before our era. In his book on construction insurance2, Nael Bunni gives a few examples of the Hammurabi rules pertaining to construction.

The Code required that the builder would promise to deliver a safe and sound house, in accordance with the requirements of the owner, or face the consequences of his failure to perform. The great works of antiquity, however, tended to be built by massed labour, under the direct management of the state. It demanded a high degree of organisation, to round up a force made up, in part, of slaves from lands conquered by the dominant culture, and farmers who had to contribute their work as a primitive form of taxation.

Roman Times The development of construction management reached a peak during Roman times, reflecting a long economic, political, social and legal evolution. They were masters of delegation and distribution of responsibility around a large team of contributors to a civil engineering scheme. They did it with a well-developed understanding of incentives and motivation. The modern concept of partnering would have been familiar to them.

Common Law The next important development came after the Norman conquest of England, when formal contracts, issued under written and sealed promise, became enforceable under law. Later, failed oral promises first became recognised as deceit, treated as a tort.

By the early 17th century, the common law courts accepted the enforcement of simple contracts, i. After a long period of development, the courts finally focused on the presence of consideration as the prime test of enforceability of a contract.

Thus we come to the present day definition of an enforceable contract4, which must be based on an offer and the acceptance of that offer, made and accepted by parties having capacity to contract; the agreement must be based on a promise to perform a certain contractual matter that must be legal, and must be supported by consideration.

The pioneering works were those of the canal network, a primary transportation grid developed between and The volume of civil engineering construction, already substantial at the time of the construction of the canal network, increased dramatically after the development of steam engines and the advent of the railways late in the Industrial Revolution. Such volume required the rise of a new professional activity — that of the civil engineer and master builder of canals, rail lines, tunnels and bridges.

Those were tentative times, in terms of the contractual arrangements and styles of management being used by the various practitioners. They varied from the labour-only types of contract preferred by James Brindley, and the competitive bids preferred by others, to the direct contracting of works with tried contractors, as favoured by Thomas Telford. The styles of management ranged from the openly conflictive and dictatorial manner of Isambard Kingdom Brunel, to the collaborative approach of John Rennie.

There were many forms of contract in use, practically as many as master builders or engineers were in the business of developing the great works of the times. Those early, tentative days saw the introduction of principles that were later incorporated into standard forms. This concept was later further developed by Joseph Locke, whose contracts referred to the Engineer, as the decision-maker, sovereign arbitrator and amicable judge. Some of the problems that would later plague the industry also arose in those times.

Many professional organisations around the world used the ICE Conditions of Contract as the model for their own standard documents. However, as revisions were incorporated, the language became more and more complicated and inscrutable. In spite of its complex structure and phrasing, the FIDIC Conditions of Contract remained the only accepted international form of contract and, over the years, the document became supported by an extensive history of court cases to assist in the interpretation of its clauses.

The initial concept for this new approach arose from a radical reform of project management systems funded by the British Property Foundation BPF. The BPF system was based on a fundamental review of management processes and contract relationships. A manual was published by the BPF in , but it was little used, as it was not supported by suitable conditions of contract. This was the first attempt at reform in over years and it resulted in the issue of the New Engineering Contract NEC in The NEC is based on best modern project management principles; it is designed to cater for the various relationships required by a modern engineering project; it uses simple procedures and language, with terminology that can be used not only in civil engineering construction, but in engineering projects more generally; it was developed using flow charts so that the processes it involves are logically complete and can be represented in a computer system to handle the information flows; and all the processes it embodies have been designed to reward cooperative behaviour, instead of adversarial attitudes and behaviour, by the participants in a contract.

According to Barnes, its use has led to smooth management of projects, to the point that the Adjudicators have very little work in the resolution of disputes, and there have been no court cases arising from claims and disputes. Barnes collaborated with World Bank staff in the production of this document, which met general approval among its users, to the point that it was adopted by some governments for the development of their own standard conditions of contract.

The issue of the SBD—SW, which marked a departure by the development banks from the traditional forms of contract, may have prompted other review and redrafting work by international agencies. Martin Barnes headed the team that developed the NEC. Their drafting work resulted in the issue, in , of the new FIDIC suite of conditions of contract. The new documents did not refer to the specific type of project but, rather, were based on the allocation of the design function: the new Red Book is for building and engineering works designed by the Employer; the new Yellow Book for electrical and mechanical plant and building and engineering work designed by the Contractor; and the Silver Book is for turnkey projects.

Given the change of orientation of the documents, the comparison is perhaps not strictly correct — it can just be taken as a general indication of the effort expended in the simplification of language, and the decompression of the old legalese shorthand. In addition, the new suite of contract documents contain amendments such as the price adjustment formula, the contract neutral and certain guarantee conditions that the development banks, in the past, had had to incorporate in Part II Conditions of Particular Application appended to the basic FIDIC contract.

The neutral is therefore in a prime position to defuse issues as they arise — and, since the neutrals are usually professional people or panels of very high repute, experienced in the type of contract under supervision, their counsel has been respected by all participants.

The most important initiative related to contract neutrals arose in the north-west of the USA, in the s. Highway tunnel projects had been the subject of many disputes. They were hugely successful. The Boards have issued 1, formal recommendations — and only 31 cases developed into disputes that had to be dealt with beyond the DRB no less than 15 of the latter cases arose in a single contract fraught with difficulties.

The last decades have also brought about a change of culture in the construction industry, away from confrontation and towards cooperation among the parties to a contract. In turn, this has made it possible for new approaches to project management to come back in fashion, approaches that require mutual respect and collaboration.

These are not new forms of contract, they are variants or supplemental agreements. They have been used in the past with the conditions of contract existing at the time, provided there was good will and close understanding among the participants.

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From the first day he could walk Simon had always wanted to outdistance his rivals. During his last term at Lancing Simon was passed over for head of school and he still found himself unable to forgive the headmaster his lack of foresight. Later that year, some weeks after he had completed his S-levels and been interviewed by Magdalen, a circular letter informed him that he would not be offered a place at Oxford; it was a decision Simon was unwilling to accept. In the same mail Durham University offered him a scholarship, which he rejected by return of post.

The Tutor for Admissions at Worcester College removed the glasses from the end of his nose and stared at the tall young man with a mop of dark hair falling over his forehead. Alan Brown was the twenty-second don Kerslake had visited in four days. Alan Brown flicked through a rotary index on his desk, obviously enjoying the little cross-examination. He peered at the card in front of him.

He had never in twenty-four years come across such a request. Brown picked up the telephone by his side and dialed a number. Did you ever consider offering a man called Kerslake a place at Magdalen? Kerslake was not surprised when her son went on to be President of the Oxford Union. For the first nine years of his life he shared that room with his ailing grandmother until she died at the age of sixty-one.

He would listen enraptured as she told him stories of her hero husband in his smart khaki uniform—a uniform now folded neatly in her bottom drawer, but still displayed in the fading sepia photograph at the side of her bed. Finally she seemed a tragic figure as he realized how little she had experienced of the world beyond that cramped room in which she was surrounded by all her possessions and a yellowed envelope containing irredeemable war bonds.

By the end of that year, one spent mainly in the classroom, Ray managed to come third in the form, and top in Latin and English. Only when it came to selecting teams for any sport did Ray find he came bottom in anything. However brilliant his mind might have been, it never seemed to coordinate with his body.

Each year the winner of the essay was required to read his entry to the assembled pupils and parents on Speech Day. Even before he handed in his entry Ray rehearsed his efforts out loud several times in the privacy of his study-bedroom, fearing he would not be properly prepared if he waited until the winner was announced. The only reservation, he admitted to its author, was the choice of title. Ray thanked him for the advice but the title remained intact.

On the morning of Speech Day the school hall was packed with pupils and their parents. He stared down at the 2, expectant faces but showed no sign of apprehension, partly because he found it difficult to see beyond the third row. When he announced the title of his essay some of the younger children began to snigger, causing Ray to stumble through his first few lines. But by the time he had reached the last page the packed hall was still, and after he had completed the final paragraph he received the first standing ovation of his career.

Twelve-year-old Ray Gould left the stage to rejoin his parents in the body of the hall. His father was trying not to look too proud. True, he was left in the corridor while his parents sat on the stage inside another drafty hall, but he quickly learned that applause signaled his mother would soon be returning.

At that time few believed Duncan Fraser was more than a rugby hero, and consequently he failed to win the seat for the Conservatives, if only by a few hundred votes. Three years later Andrew, a sturdy four-year-old, was allowed to sit at the back of several sparsely filled halls as once again he and his mother trailed round the city to support their candidate. Hard work and consistent results on behalf of his constituents ensured that the marginal seat remained in the hands of Councillor Fraser for the next nine years.

By the age of thirteen, Andrew, a stocky wee lad with straight black hair and a grin that no one seemed to be able to remove from his face, had learned enough about local politics to help his father organize a fifth campaign, by which time neither party considered Edinburgh Carlton a marginal seat.

When in their grandfather, the thirteenth Earl of Bridgwater, finally expired, the sixteen-year-old Rupert became Viscount Seymour while Charles inherited a meaningless prefix. The Hon. At Eton, Charles continued to excel and ended his school-days as President of Pop before being offered a place at Christ Church, Oxford, to read History.

Rupert covered the same years without over-burdening the examiners, internal or external. At the age of eighteen the young viscount returned to the family estate in Somerset to pass the rest of his days as a landowner. No one destined to inherit 22, acres could be described as a farmer. He would spend his weekdays reading the history of his relations and the weekends at house parties or riding to hounds.

Never once did he take his eyes off the great war leader during his witty and powerful speech, although what kept flashing across his mind was the realization that, but for an accident of birth, Churchill would have been the ninth Duke of Marlborough.

Here was a man who had dominated the world stage for three decades and then turned down every hereditary honor a grateful nation could offer, including the title of Duke of London. Another undergraduate who listened to Churchill that night was also considering his future. But he did not view proceedings crammed between his fellow students at the back of the crowded hall.

The tall young man dressed in white tie and tails sat alone in a large chair on a raised platform, for such was his right as President of the Oxford Union. The only son of a family solicitor, he had come to appreciate how much his father had denied himself to ensure that his son should remain at the local public school. She also hoped that it would give Simon a better chance of going on to university.

From the first day he could walk Simon had always wanted to outdistance his rivals. During his last term at Lancing Simon was passed over for head of school and he still found himself unable to forgive the headmaster his lack of foresight. Later that year, some weeks after he had completed his S-levels and been interviewed by Magdalen, a circular letter informed him that he would not be offered a place at Oxford; it was a decision Simon was unwilling to accept.

In the same mail Durham University offered him a scholarship, which he rejected by return of post. After eighteen years of forty-yard goals Mrs. Some fourteen days before the start of the Michaelmas Term at Oxford Simon booked himself into a small guest house just off the Iffley Road.

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