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Law, Land, and Family: Aristocratic Inheritance in England: 1300 to 1800.

by Eileen Spring. Chapel Hill, North Carolina, University of North Carolina Press, 1997. 199 pp.

This work attempts to recast the real property law history of the English family, holding that a major feature of upper-class inheritance from the fourteenth through the eighteenth centuries was the virtual exclusion of females from land-holding through the legal devices of the entail, use, and strict settlement, which nullified the common law rules of inheritance under which 40 per cent of the land would have been held or inherited by females. Taking issue with the received view that females gained rights to land in the sixteenth and seventeenth centuries, Spring sees developments in these centuries contributing to the long-term decline of female rights from late medieval to modem times.

Spring's study is divided into six chapters: the heiress at law, widows, younger children, landholding patterns, the strict settlement, theories of family development, and a conclusion. Written, she states, for social historians, Spring admits that legal historians may find her book "inelegant" (p. 5), except for the chapter on the strict settlement which social historians can omit' There are appendices which contain short abstracts of strict settlements and trusts from legal abridgments, and a short, incomplete index with subject entries such as "conflicts" and "family" which would have been more useful in a larger book where they would be more difficult to find.

Beginning with a study of the heiress at law, Spring focuses on females entitled to inherit and finds that the major aim of large landowners (male) was to prevent female succession. Her theory is that given families with no surviving sons, no children, no brothers, and no uncles, then 25 per cent of all common law inheritances should have gone to females. And given that there were multiple female heirs, daughters, and co-heirs, then 42 per cent should have been females. Instead, evidence collected by Stone and Laslett shows that 7 per cent to 13 per cent of all inheritances (not just common law) went to females. This divergence between what happened and what should have happened is attributed to the issuance of letters patent from the fourteenth to the seventeenth centuries creating baronies in the male tail only, and to the rise of male superiority and a patrilineal ethos. Moreover, Spring argues that fear of the heiress was a major factor in the development and destruction of the entail, and in the development of uses, strict settlements, and contingent remainders. Resuscitating the view of "evolutionary functionalism," she concludes that the legal history of landowners can be summed up as "putting down the heiress-at-law" (p. 35).

Spring introduces widows with the favourable view of having one-third their husbands' land after death by the thirteenth century, and having the wealth to found five Oxford colleges. The single most important change was the Statute of Uses, which Spring renames "The Husband's Charter" (pp. 47-79). By the eighteenth century, widows' portions had been reduced by two-thirds, and dower became pin money and was an anachronism by the Dower Act of 1833. Relying almost exclusively on William Blackstone, Spring argues that females ceased to be of any consequence in landowning by the early nineteenth century. The chapter on younger children follows a similar line of argument. Where John Baker said that entails enabled owners to exclude females and collaterals, Spring says that entails postponed female inheritance for collateral males and were used either for the eldest or younger sons.

The chapter for legal scholars on the strict settlement is not very successful. It is based on a few old textbooks, Bonfield, and a few cases. The numerous precedents of real property law in the era are not examined, either at common law or equity. The case law is extant, in both the common law and equity courts, and particularly in the Star Chamber before 1641 where women often brought cases where they tried to recover uses which had been undone to their disinheritance. Many of those disputes had already been litigated at common law and or equity. Women, moreover, were not consistently the losers, and often male and female family members and relations were involved on both sides of the controversy.

The final chapter on theories of the family provides a critical assessment of the literature, primarily that of the social historians. Here Spring emphasizes her belief that her work is different because she focuses on the emotional history of the landed family which is "at odds with thinking on the subject" (p. 149). She also emphasizes her view of the long duree, the history of men overcoming common law rules which were too favourable for women. The conclusion presents another set of reaffirmations of the author's conclusions, already summarized in the book at various places in different ways. That the history of real property law was driven by family concerns, and that the study of property law can bring insights into the emotional history of the family, are conclusions that most historians would accept. It is the author's interpretation of those conclusions which will bring doubt to many readers who have worked in the furrows of the field.

The book has several major problems. Spring uses the research results, and ideas, of historians such as J.M. Bean, Lloyd Bonfield. John Habakkuk, K.B. McFarlane, Peter Laslett, and Lawrence Stone, but only when it suits her purpose. She considers her view as different because she has the right framework. She attacks the work of women historians on females and property from Mary Beard to Janelle Greenberg, Maria Cioni, and Amy Erickson. She uses Blackstone, but then rejects him when not convenient (pp. 73-76), and ignores a number of other relevant legal writers more familiar with the subject. She mentions several cases litigated by female heirs in the peerage (pp. 104-12), but they are Poorly cited, and the secondary specialized literature is ignored. A major problem with her theory is that there is no proof of intent (on males). It would be difficult for anyone who has researched central and local record records extensively to accept the statement that the history of inheritance in England was a story of the evasion of the rules of Henry I in 1100 for the succeeding centuries.

There are a number of alleged "facts" which historians may well question. These include: that the Statute of Uses was "The Husband's Charter" to bar all dower for the future; that a motive force of the Statute of Wills was to restrain heiresses; that landowners were predisposed to overcome the common law rights of their daughters; that most widows lost their share of their husband's personal property in the seventeenth century, and ceased to be of any consequence in landowning by the end of the eighteenth; that by the eighteenth century female rights, and rights in succession and dower, were eliminated in practice by great landowners (pp. 92-95), and the property interests of sons, including younger sons, declined (pp. 101-3); that landed aristocrats owned most of the nation's wealth by 1800; and that landed aristocrats had no desire to sell land for commercial reasons until the nineteenth century (p. 72).

In what she herself regards as a small book with a large aim, Spring's thesis is that the history of aristocratic inheritance in England reveals a long-term decline of female rights from the fourteenth through the eighteenth centuries. While lawyers, judges, and jurists were preoccupied with the struggle between landowners determined to tie up their estates for their future heirs, and those who wished to create a free market in land, aristocratic landowners were able to use the entail, the use, and the strict settlement in a decisive manner in order to override and indeed nullify all other interests in law for the specific purpose of excluding females from inheritance. This is, in the spirit of intellectual inquiry, a challenging work.
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Author:Knafla, Louis A.
Publication:Canadian Journal of History
Article Type:Book Review
Date:Dec 1, 1997
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