Primogeniture - Part 3
Common
Law of the English went hand in hand with titles and other honors. Receiving a
title from the King brought gifts of land that required lineage. Because there
had been no genealogical foundation from previous generations, many began to
think there had to be equality, or even betterment, in future generations. Thus,
the idea of guarantee of worth actualized in the law. The law started as common
before it became a decree.
King
Henry I created the decree that issued the law of primogeniture. The decree
issued that the capital fee, including the mansions and military possessions of
the father, went to the oldest son of the deceased.
In the time of Henry II, the law of
inheritance depended upon whether the patriarch had been a civil servant, or
one of military servitude. The youngest son inherited where the old English
laws prevailed in the civil arenas. However, if the father had been in martial
service, all of his property went to the eldest son.
By the time that Henry III had acquired the English throne, primogeniture had
taken over the land.
Entail,
jointure and dower rights could not be dismissed because they had been within
British common law. The law of primogeniture had not been written down.
However, just as the other laws within the common law system they were
considered normal for the realm, and thus had been constituted legally.
Primogeniture had not consumed the country in its entirety at one time. The
assimilation process took many years and generations, but finally did consume
the nobility, along with its prestige of situation.
One reason
primogeniture became popular was the lord of the realm wanted a situation where
the integrity of his land remained safe within his own bloodline. To fortify
the estate within his down line, the law of primogeniture was set into motion.
The problem with entailing property had been that once it was set in motion, it
was unable to be undone, at least not until the sixteenth century. Even at this
late date, a long and strenuous law suite could only break land given in tale
and took many years, and thousands of pounds to procure. So therefore the
paternity of the inheritor had to be completely established prior to the death
of the patriarch.
Inheriting
honors, such as titles and estates, had generally been presented upon the
eldest son. However, this had only been properties that were inherited as such
from the father, and in some cases the mother, at their birth. Any new
properties that had been gained by the parents would have been able to be
distributed as was wanted. Those new additions could have been divided evenly
amongst the brood, or given to the second son, third son, or any daughter. At
the moment of gift, the benefactor decided if this property was to have been
given in tail, thus creating a new dynastic allowance.
Allowances
also had to be given as dower gifts. Beginning in the Middle Ages, gifts to
daughters went away from real estate and instead were gifts of jewels,
furnishings, and money.
However, the daughter-in-law’s dower came into being at this time. This dower
was set as usually one-third of the property for her lifetime in case of
widowhood.
This had
been a problem when there had been multiple widows on any given property. This
happened if the patriarch died and left his property to his eldest son, who
also predeceased his wife, and so on.
In some cases
jointure allowed the wife equal ownership privileges until her death, even if
she had been a consecutive wife with inheritable sons from a previous marriage.
Keeping the property for the widow had not been the issue in this instance. The
point was to create a livelihood for the woman after the death of her husband.
When the patriarch died while the property had been in jointure, it still
belonged, in name as well as in deed, to the widow. She could do with it
whatever she wanted even going as far as to entail the property to sons of
later marriages.
Marriage rights had also been conferred upon
others. Life-estate guarantees for other offspring, and even subsequent
husbands of widows with dower and/or jointure rights, had also held property
rights in check. On the outside, it sounded completely opposite from the ideal
of primogeniture, and yet it still guaranteed domiciles and incomes for persons
outside the original model of protection.
While this had certainly been in the minority, it did exist especially if the
property had been held in jointure. Fathers had even set themselves up a
life-estate to guarantee themselves a home as he entailed his property to a
younger son.
Problems With Reality
Initially
the inheriting child had been expected to be the oldest legitimate son. That
son had been expected to have at least one son to continue the nobility line of
property and titles.
The problem with this was that prior to the 19
th century, only 60
percent of children grew to adulthood due for many different reasons.
Given the blessings of multiple male births, there had still been no guarantee
that the honors generated by one generation followed through to perpetuity as
was intended. Child morbidity had been caused by child malnutrition, disease, accidents,
and even unexplained deaths such as the twelve year-old King Edward V, his
brother Richard and also Kind Edward VI.
Death
of the child heir had been only one problem. Deaths of male heirs without
themselves procreating their own divine male children to continue the bloodline
had continued to be a problem even if there had been many sons. Having many
children, the next line of men died before inheriting and/or procreating. It
had not been uncommon to have a family line completely extinct by just a few
generations. In fact, out of the original 136 baronial families of Parliament,
there had been only sixteen left a little over a hundred years later.
Extinction of the
families had to do with the fecundity rate as well as death. The production of
the next generation had been the job of the wife. Life patterns such as quality
of life would have typically allowed the woman a better living environment to
sustain pregnancy. And they would also have had a better diet, which should
have assured the best possible probability for gestation. However, health of
the father also had its role. Sexually transmitted diseases from previous,
and/or extramarital encounters, transferred to the pregnant mother and changed
the conceivability ratio. Then, there had been just plain bad luck that had its
own role in family propagation.
Giving
birth to the proper sex had also been an issue. Women could inherit, however
common law stated that property had to go to the eldest male heir. When there
was no person of the correct gender within the down-line, lateral inheritors
had to have been located. This had been done by going back up the genealogical
ladder, then moving laterally along a familial record to find another descent
hierarchy that eventuated in a worthy male.
Women not being able to have access to their ancestry bower had created such a
stir that it invaded popular women’s novels of the nineteenth century. Jane
Austen’s character Mrs. Bennet cried when she found out that the heir was to be
visiting their household, “I do think it is the hardest thing in the world,
that your estate should be entailed away from your own children…”.
While this was just a character from a novel, this showed that the reality of
primogeniture created situations where properties in tail had brought in new
owners.
Other
new owners had been created because parents had used the inheritable property
as a bribe to control the conduct of their children. When the heir ran off with
the wrong woman, or even refused to follow the guidelines set out by a parent,
their inheritance had been used as bait. When the child was not completely
dutiful, that protection had been pulled out from under their feet. Again, this
had been so prevalent that Austen included this situation in
Sense and
Sensibility. Edward, the eldest son in this novel, had prearranged a secret
engagement with an unacceptable woman, and “His mother has determined, with a
very natural kind of spirit to settle that estate upon Robert (the youngest
son) immediately, which might have been Edward’s on proper conditions.”
Having an
encumbrance meant that the intended son may have never had the opportunity to
enjoy the honors that should have been his. Life-estates where the father lived
much longer than was expected put the son in a position where he had been
tenant in his own home, while the holder of the life-estate had the complete
enjoyment of the property. Sectioning off property for dowry had given the same
type of hypothecation. Common Law guaranteed these rights to women if they did not
stay on the property. Women used their portions, sometimes from multiple
husbands, as income property instead of residency.
When there had been multiple dowers on one property, the income, as well as
tenancy had been reduced for the heir apparent.
When the rightful
heir actually received estates free of encumbrance, there had still been many
instances where he could not enjoy his own property. One reason was that there
was no money that came along with the deed.
Finding themselves land rich and cash poor, these men had to do something to
take care of the real estate that they had inherited. They did this by leasing
out land, but much more usually, the grand manor.
Once again, having possession of the deed did not necessarily mean that they
had the enjoyment of the domain.
Attorneys arranged
the details of the lease, or a letter would have also sufficed “I see my Lady
Sydney is desirous to have your house this winter. If it please you that she
have it, upon condition that if you come to London yourself then you may have
it upon 2 days warning, to be made ready for you, it were not amiss…” was the
agreement of Lady Bess to the Queen of England.
The eighteenth century saw the solicitors involved. “Mr. Shepherd, a civil,
cautious lawyer, who, whatever might be his views on Sir Walter, would rather
have the disagreeable prompted by anybody else, excused himself from offering
the slightest hint, and only begged leave to recommend an implicit reference to
the excellent judgment of Lady Russell, from whose known good sense he fully
expected to have just such resolute measures advised as he meant to see finally
adopted.”
In Jane
Austen’s novel, Sir Walter, the heir presumptive of Kellynch Hall, had to
submit to the wishes of Lady Russell and his lawyer to lease out the estate and
retire to a more modest abode. In both cases, the property had not been in the
hands of the heir.
Another example
would have been when the property escheated to the Crown.
This occurred if the father had died before
times wills had been the norm, or later after wills had been established, had
died intestate. If, for some reason there had been any type of religious
heresy, or even worse there had been treasonous acts against the monarch,
property reverted to the Crown. The King removed legal ownership from the hands
of the contemporary owner, and gave it to someone of more amenable temperament
and loyalty.
Again, the
male given rights by primogeniture had lost them to someone else.
Loyalty
to the Crown had its advantages with the law of primogeniture. This loyalty
allowed properties to safely transfer from heir to heir through multiple
generations without going outside of the family line. While there may have been
collateral movement to conclude the title, it still maintained familial ties.
One such property was Chatsworth Hall, which came to Bess of Hardwick with her
second husband, Sir William Cavendish, in 1545. This great manor has stayed in
her family ever since, and has the current heir living there presently.
Conclusion
Jane Austen. Pride and
Prejudice. 1813. in The Works of Jane Austen. (Ann Arbor, MI:
Borders Group, 2004.), 207.
Austen. Sense and
Sensibility. 1811. in The Works of Jane Austen. (Ann Arbor, MI:
Borders Group, 2004.), 123.
Austen, Persuasion.
1816. in The Works of Jane Austen. (Ann Arbor, MI: Borders Group,
2004.), 601.
Jenkins, Simon. England’s
Thousand Best Houses. (New York: Penguin Group, 2004.), 145-146.
Posts
