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Property law and practice in seventeenth-century London

Published online by Cambridge University Press:  17 October 2014

IAN DOOLITTLE
IAN DOOLITTLE*
Affiliation:
202 White House Apartments, 9 Belvedere Road, London, SE1 8YF, UK
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Abstract

This article uses the Decrees issued by the London Fire Court to explore two aspects of property law and practice in the 1660s. The first is the use of trusts and settlements. The Decrees suggest that at least for property owners these were more widespread than previously thought. The second theme concerns women. Fathers and husbands used their property carefully to make provision for their daughters and wives. More than that, women were clearly active participants in the property ‘market’, despite the legal restrictions imposed on them. The conclusions emphasize the importance of looking beyond legal rules.

Type
Research Article
Information
Urban History , Volume 42 , Issue 2 , May 2015 , pp. 204 - 224
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Copyright
Copyright © Cambridge University Press 2014 

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References

1 C162v in Jones, P. (ed.), The Fire Court, 2 vols. (London, 1966–70)Google Scholar, vol. II. The original Decree (in CLA/039/01/003 in the London Metropolitan Archives) confirms the essential accuracy of Jones’ summary.

2 This was ‘by virtue of the will’.

3 Notably, Professors Derek Keene for the medieval period and Bill Baer for this later period.

4 Bray, W. (ed.), The Diary of John Evelyn, 2 vols. (London, 1907), vol. II, 202: 12 Jun. 1684Google Scholar.

5 See n. 1.

6 Jones, P.E. and Reddaway, T.F. (eds.), The Survey of the Building Sites in the City of London after the Great Fire of 1666 by Peter Mills and John Oliver, 5 vols. (London, 1962–7)Google Scholar.

7 See the author's brief description in ‘The London property “market” before and after the Great Fire’, London Topographical Society Newsletter, 56 (2003), 5–8.

8 The background to the 13,000 total is given in Porter, S., The Great Fire of London (Stroud, 1996), 69–71Google Scholar.

9 For example, Primatt, S., City & Country Purchaser and Builder, ed. Leybourne, W. (London, 1680)Google Scholar.

10 Much of Jones’ detailed work is concentrated in the sixteenth century, but see ‘Wills, trusts and trusting from the Statute of Uses to Lord Nottingham’, Journal of Legal History, 31 (2010), 273–98. Simpson, A.W.B.'s History of Land Law, 2nd edn (Oxford, 1986), is still valuableCrossRefGoogle Scholar.

11 For example, Habbakuk, J., Marriage, Debt and the Estates System: English Landownership 1650–1950 (Oxford, 1994), esp. ch. 1CrossRefGoogle Scholar, and Bonfield, L., Marriage Settlements, 1601–1740 (Cambridge, 1983), which is based on evidence from Kent and NorthamptonshireCrossRefGoogle Scholar.

12 Erickson, A.L., Women and Property in Early Modern England (London, 1993)Google Scholar. For the coverage of Erickson's probate accounts, see 17.

13 C242–264 and 266v–267v.

14 See note B in Appendix 1.

15 See the case references in Appendix 1. Here and throughout this article, the notes attached to the Appendices (concerning the use of cases as the unit of measurement) need to be borne in mind. C148 is a repeat of C73 and has been ignored.

16 Appendix 1, cols. 1 and 2. The existence of what would later be described as a freehold interest has been deduced, with conscious inexactitude, from references to ‘fee’, ‘seised’ and ‘inheritance’ and with some diffidence from references to purchase, sale and conveyance (C150 is a warning against confidence). No attempt has been made to infer a freehold from (say) the nature of the trust/settlement. ‘Freeholds’ and ‘freeholders’ are mentioned only infrequently in the Decrees.

17 In addition to those in col. 2 of Appendix 1, the 44 other cases are C9, 17v, 19, 25, 30, 31, 34, 36v, 39v, 41v, 42v, 49v, 61v, 71v, 95, 96, 97, 98, 99, 103, 105, 107, 112, 118, 132v, 134, 138v, 159v, ?164v, 180, 192, 214, 217, 225, 238, 273, 277, 277v, 279v, 288, 289, 292, ?298v, 303v. ‘Institutional’ freeholders, for obvious reasons, are omitted.

18 Col. 3. Judgments have been made about sub-divided properties and side-references to other properties.

19 The additional ones are C3v, 5, 8, 9, 10, 11v, 20v, 31, 34, 41v, 47v, 49v, 51v, 65, 67v, 69, 71v, ?73, 87, 112, 118, 126v, 137, 140, 144v, 155, 159v, 172v, 174v, 178, 188v, 192, 196, 198v, 201, 214, 217, 225, 231, 232v, 238, 241, 242, 243v, 245v, 248, 250v, 252, 253, ?254, ?256, 257, 259v, 265, 273, 280v, 282, 284, 292, 296, 306. The list includes instances of a messuage with tenements and in two cases separate parcels of ground. The total is 61 (including 3 queries).

20 Col. 4.

21 Col. 5.

22 Col. 6.

23 Col. 7.

24 Col. 8.

25 Col. 9.

26 Col. 10.

27 Col. 11.

28 Occupational leases were usually 21 years or shorter. As chattels, leases (if for terms of years) could be bequeathed by will.

29 Staves, S., Married Women's Separate Property in England 1660–1833 (Cambridge, MA, 1990)CrossRefGoogle Scholar.

30 Stretton, Tim is the main authority on coverture: see, for example, ‘Coverture and unity of person in Blackstone's Commentaries’, in Prest, W. (ed.), Blackstone and his Commentaries: Biography, Law, History (Oxford, 2009), ch. 8. More work is being publishedGoogle Scholar.

31 Women and Property and more recent work in article/essay form. See also, though for a largely later period, Bailey, J., ‘Married women, property and coverture, 1660–1800’, Continuity and Change, 17 (2002), 351–72CrossRefGoogle ScholarPubMed. The closest ‘match’ to the concerns of this article (and which resonates with its findings) is from an earlier period: Staples, K.K., Daughters of London: Inheriting Opportunities in the Late Middle Ages (Leiden and Boston, MA, 2011)CrossRefGoogle Scholar.

32 Two instances particularize the general point already made in Part II. The women in C3v cannot be separated into only two categories and the ‘occupiers’ in C28 are treated (for reasons explained earlier) as ‘owners’ in C26.

33 See the case references in Appendix 2(a).

34 C1, 2, 3v, 9, 11v, 12v, 14, 16 (2), 17v*, 19, 20v, 22v, 25, 26v, 28, 30, 31, 34, 36v, 38, 39*, 41v, 42v*, 44v, 47*, 49v, ?53v, 55v, 57v (2), 59 (2), 61, 61v, 63v, 65*, 67v, 70v, 71v, 75v, 77, 79, 81v, 83v, 85 (3), 88v, 90v, 92, 95, 96, 97*, 98, 99 (3?), 100, 103, 104v, 105 (2?), 107, 108, 110v, 112*, 116, 118, 120, 131 (4), 132v, 134, 137, 138v, 141v, 142*, ?152*, 153v, 159v, 162v, 164v, 166, 167v, 169, 171, 176, 180, 183, 192, 194v, 204, 206*, 208, 209v, 215* (6), 217*, 220, 222v, 225, 226v, 228* (4), 230, 235, 236v, 238, 239v*, 243v, 269, 270 (2), 277, 277v, 279v (3), 280v, 282, 285v, 287, 289, 290v*, 292, ?293, 294v (2), 297, 302, 303v*, 306, 308. Some of these are successive owners, hence the mismatch with Appendix 1 col. 1. Numbers in () are joint owners. * signifies joint ownership with a woman. Trustees are included if family trustees but ignored if feoffees.

35 Shown without an * or † in Appendix 2(a) col. 1. The ‘spread’ is 68 – (20 + 11) and 71 – (20 + 8).

36 Shown without an * in n. xxx (i.e. 119–16).

37 Appendix 2(a) col. 2.

38 Shown with an * in col. 1.

39 C138v and possibly C303v (compare cols. 1 and 2).

40 See the case references in Appendix 2(b).

41 Appendix 2(b) col. 1 (an * shows joint names). The figures do not include rebuilding leases, being a different type of demise.

42 This makes it difficult to pursue a reviewer's suggestive point that a wife had more power as an executrix than as a devisee.

43 Col. 2, where devisees are shown with a ✓ and executrices with an *.

44 Col. 3. Daughters are shown with an *.

45 See cols. 2 and 3, i.e. C3v, 17v, 171, 263.

46 Col. 3 in Appendix 2(a) and col. 2 in 2(b). Note, however, the ‘spread’ of cases in both categories: 24 (35) for owners and 25 (40) for occupiers.

47 Cases listed with an * in col. 3 in Appendix 2(a) and col. 2 in 2(b).

48 Horwitz, H., ‘Testamentary practice, family strategies and the last phases of the Custom of London, 1660–1725’, Law and History Review, 2 (1984), 223–39CrossRefGoogle Scholar.

49 Appendix 2(a) col. 4. Cases revealing joint dealings are shown with an *. The cases involving only acquisitions (†) have been deducted (2 also involved disposals). Leases exclude the rebuilding ones ‘imposed’ by the Fire Court but include those previously agreed and ‘confirmed’ by the Court.

50 Appendix 2(b) col. 4. The three joint assignment cases shown with an * all involved husbands. One possible ‘assignment’ was an assignment of an ‘interest’ (C142). One or two cases involved sub-letting (†). (The assignments and the sub-lettings comprise the 10 (12) total shown in the text.) Two to three cases where there were devises or surrenders (two †s and three †s) are shown for completeness. Trust arrangements are not included (being analysed in Part I of this article): for example, C150.

51 In one case (C12v) the information is taken from Jones' City archive footnote.

52 Appendix 2(a) col. 4. The duplicate cases are C288 and C298v. ‘Passive’ legacies are excluded.

53 C47v.

54 C20v and C67v († in col. 1 in Appendix 2(b)).

55 ?C10, 11v, 20v, ?22v, 25, 28, 36v, 38, 51v, 57v, 61v, 65, 67v, 69, 70v, ?71v, 87, 88v, 98, ??107, 108, 120, 125, ?126v, 128, 142, 144v, ?146, ??147, 150, 153v, ?176, 192, 194v, 204, 228, 241, ??242, 245v, 275v, 280v, 284, 302, 304, 308, 310 (total = 46, with 5? and 3??). The difficult distinction between ‘ownership’ and ‘occupation’ needs to be appreciated (for example, with occupiers having a lesser interest than the owner but still holding more than one property – though occupying one!). The words ‘came to’ may or may not have meant an assignment (hence ?) and ‘vested’ too, though less likely (hence ??). Assignments for financial/security purposes or for family/trust ones have been omitted. One assignment of one lease among several in the case or plural assignments all count as one here.

56 See the 15 (18) cases in Appendix 2(a) col. 5 and the 10 (12) in 2(b) col. 5. Rebuilding husbands are to be found in the cases shown with an * (2 (3) in (a) and 6 in (b)).

57 C162v.

58 See Stretton, ‘Coverture and unity of person’, 126.

59 Doolittle, I., ‘Recreating London in 1666’, London Topographical Newsletter, 78 (2014), 9–10Google Scholar.

60 Some research from his thesis was published in this journal: Field, J., ‘Charitable giving and its distribution to Londoners after the Great Fire, 1666–1676’, Urban History, 38 (2011), 3–23CrossRefGoogle Scholar.