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The Heiress-at-Law: English Real Property Law from a New Point of View

Published online by Cambridge University Press:  28 October 2011

Eileen Spring
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Extract

By the common law rules of inheritance women in English landed society fell into two classes. Some were altogether excluded from inheriting; others were entitled to succeed to the family estate. The woman thus entitled, the heiress-at-law, is clearly a figure due historical attention. Yet she has never been singled out for long-term consideration. Where she has been the main subject, discussion has always been chronologically limited, and her history has not been carried any distance through the course of legal changes that are relevant to it. Usually she has been discussed as but part of the family, and attention has been focussed largely on eldest sons and their relations with younger children, with younger sons or with daughters not heiresses, as the case may be. To focus on the heiress and to follow her history over the long run, from the thirteenth century to the eighteenth, is the purpose of this article.

Type
Articles
Information
Law and History Review , Volume 8 , Issue 2 , Fall 1990 , pp. 273 - 296
Copyright
Copyright © the American Society for Legal History, Inc. 1990

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References

Notes

1. Wrigley, E. A., “Fertility Strategy for the Individual and the Group,” in Historical Studies in Changing Fertility, ed. Tilly, Charles (Princeton, 1978), 150–51Google Scholar.

2. Ibid., 139.

3. For a full description of the rules of succession, see Simpson, A. W. B., A History of the Land Law (Oxford, 1986), 56–63CrossRefGoogle Scholar.

4. Milsom, S. F. C., “Inheritance by Women in the Twelfth and Early Thirteenth Centuries,” in On the Laws and Customs of England, ed. Arnold, Morris S. et al. (Chapel Hill, 1981), 60–89Google Scholar; Holt, James, “Feudal Society and the Family in Early Medieval England: The Heiress and the Alien,” Transactions of the Royal Historical Society, 5th ser., 35 (1985): 1–28CrossRefGoogle Scholar.

5. Stone, Lawrence and Stone, Jeanne C. Fawtier, An Open Elite?: England 1540–1880 (Oxford, 1984), 119–26Google Scholar.

6. For a discussion of the Stones' sample of landowners and the coverage of their counties, see David, and Spring, Eileen, “Social Mobility and the English Landed Elite” Canadian Journal of History 21 (1986): 340–42Google Scholar.

7. Stone, An Open Elite?, table 3.8.

8. Ibid., table 4.2.

9. Laslett, Peter, The World We Have Lost (London, 1981), 239Google Scholar.

10. Stone, An Open Elite?, table 4.2

11. Because the Stones do not consider what amount of female inheritance was unavoidable, they conclude their figures show generosity to females.

12. For an easily available reprint of a Bridgman settlement, see Holdsworth, W. S., A History of English Law, 16 vols. (London, 1922–1938), vol. 7, app. 3Google Scholar.

13. Spring, Eileen, “The Family, Strict Settlement and Historians,” Canadian Journal of History 18 (1983): 379–98CrossRefGoogle Scholar; also published in Law, Economy and Society: Essays in the History of English Law 1750–1914, ed. Rubin, G. R. and Sugarman, David (Abingdon, 1984), 168–91Google Scholar; Spring, Eileen, “The Strict Settlement: Its Role in Family History,” Economic History Review, 2d ser., 41 (1988): 454–60CrossRefGoogle Scholar.

14. Holt, “Feudal Society,” 3.

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18. Ibid., 466.

19. Holt, James, “What's in a Name?” (Stenton lecture of 1981, published by the University of Reading 1982)Google Scholar.

20. Dillon v. Freine (1594). Quoted from Baker, John and Milsom, S. F. C., Sources of English Legal History: Private Law to 1750 (London, 1986), 156Google Scholar.

21. Sharington v. Strotton (1565). Quoted from Ibid., 488.

22. Holmes, G. A., The Estates of the Higher Nobility in Fourteenth-Century England (Cambridge, 1957), 57Google Scholar.

23. Bean, J. M. W., The Decline of English Feudalism (Manchester, 1968), 148Google Scholar.

24. McFarlane, K. B., The English Nobility in the Later Middle Ages (Oxford, 1973), 270Google Scholar.

25. Ibid., 62–72, 276–78.

26. Bridgman's precedents were the basis on which certain calculations were made in the pioneering article, which was Habakkuk, H. J., “Marriage Settlements in the Eighteenth Century” Transactions of the Royal Historical Society, 4th ser., 32 (1950) :15–30CrossRefGoogle Scholar.

27. A Bridgman settlement is reprinted in Holdsworth, , History of English Law, vol. 7, app. 3Google Scholar.

28. Cooper, J. P., “Patterns of Inheritance and Settlement by Great Landowners from the Fifteenth to the Eighteenth Centuries,” in Family and Inheritance, ed. Goody, Jack, Thirsk, Joan, and Thompson, E. P. (London, 1976), 199Google Scholar.

29. Ibid., 200.

30. Ibid., 210.

31. Ibid., 232.

32. Ibid., 206, 209.

33. Bonfield, Lloyd, Marriage Settlements, 1602–1740 (Cambridge, 1983), 47–48Google Scholar.

34. Ibid., 50.

35. Ibid., 119.

36. Ibid., 122.

37. Milsom, S. F. C., Historical Foundations of the Common Law (London, 1969), 147Google Scholar.

38. Ibid., 146.

39. Dalrymple, John, An Essay towards a General History of Feudal Property in Great Britain, 3d ed. (London, 1758), 165–66Google Scholar; Pollock, Frederick, The Land Laws, 3d ed. (London, 1896), 88Google Scholar.

40. Finch, Mary, The Wealth of Five Northamptonshire Families 1540–1640 (Oxford, 1956), 53, 103, 144Google Scholar.

41. Holmes, Estates of the Higher Nobility, 55; Bean, Decline of English Feudalism, 126.

42. As the law held that a living man could have no heir, heirs being determinable only at death, the remainder in tail was normally contingent throughout the life of the tenant for life. In a certain form of settlement, the remainder could be made vulnerable for a lesser time. However, there was not much point in employing the form, for the real danger to the settlement lay before the son was born, and vulnerability until then could not be avoided.

43. Pollock, The Land Laws, 117.

44. Cooper, “Patterns of Inheritance,” 201.

45. Spring, Eileen, “The Settlement of Land in Nineteenth-Century England,” American Journal of Legal History 8 (1964): 209–23CrossRefGoogle Scholar; Bonfield, Lloyd, “Marriage Settlements and ‘the Rise of Great Estates’: The Demographic Aspect,” Economic History Review, 2d ser., 32 (1979): 483–93CrossRefGoogle Scholar. The point made by these articles, that settlement often failed as entail, is undeniable. It should be noted, however, that both articles exaggerate its failure in this respect, doing so for different reasons. My own does so because its sample is untypical, two out of its three families being ones who worked their own coalmines and who would thus have put an unusual premium on freedom of action. The other makes mathematical calculations based on the belief that a settlement was at an end if there was no son, whereas collateral heirs were in fact reduced to life tenancies so far as possible.