Spring 1990

American Society for Legal History
The Board of Trustees of the University of Illinois
The Heiress-at-Law: English Real Property Law from a New Point of View
Author(s): Eileen Spring
Source: Law and History Review, Vol. 8, No. 2 (Autumn, 1990), pp. 273-296
Published by: American Society for Legal History
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The Heiress-at-Law:English Real Property
Law from a New Point of View
EILEEN SPRING
By the common law rules of inheritancewomen 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 clearlya figuredue historical
attention. Yet she has never been singled out for long-termconsider-
ation. Where she has been the main subject, discussion has always
been chronologicallylimited, and her historyhas not been carriedany
distance through the course of legal changes that are relevant to it.
Usually she has been discussedas but part of the family,and attention
has been focussedlargelyon eldestsons and theirrelationswith younger
children,with youngersons or with daughtersnot heiresses,as the case
may be. To focus on the heiressand to follow her historyover the long
run, from the thirteenthcentury to the eighteenth,is the purpose of
this article.
When the heiress is concentratedon, new perspectivesopen in two
directions. They open in family history:No right of inheritancewas
more significantthan the right to succeed to a landed estate;no right
was more symbolic of the status of women. What became of that right
must entail revision in current theories of family development, the
more so since these theories have been based heavily on the families
of English landowners.New perspectivesopen in the history of real
propertylaw itself. When the interests of the heiress are followed, a
hitherto unrecognizedpatternemerges.The heiresswas-or so it will
be suggestedhere-the principalfactorin the developmentof English
real propertylaw.
Part I of this article sets out the basic facts of the heiress'shistory.
Eileen Spring is a free-lancehistorian. She is currentlyworking on a book

on English inheritance.
Law and HistoryReviewFall 1990, Vol. 8, No. 2
? 1990 by the Board of Trusteesof the Universityof Illinois

274 Law and History Review
It describesthe common law rules of inheritance,and then compares
actualinheritanceby femalesin the thirteenthand eighteenthcenturies.
It shows that landowners moved from one principle to another in
dealing with female heirs. Part II is historiographical,reviewingwhat
majorworks on landownershiphave had to say about the heiress.Part
III examines legal developmentsbetween the thirteenthcentury and
the eighteenth,looking at them from the heiress'spoint of view and
thus tracing the thread of her intereststhrough the evolution of real
propertylaw. Finally,in Part IV, notice is taken of other common law
rights, and a general suggestionis made for a fresh way of looking at
the development of real propertylaw.
The common law rules of inheritanceby definitionform the starting

point for the story of the heiress. These rules were establishedshortly
after the Norman Conquest, and they were not overriddenby statute
until 1925. The prime rule is well known:Land descendedto the eldest
son to the exclusion of his siblings. The next rule, much less well
known, was that if there was no son, land descendedto daughters.The
common law thus gave a preferenceto males but a limited preference.
It chose son over daughter,but daughter over collateral male. In
common law, then, the daughterwhere there was no son was heir, not
her uncle, nor her nephew,nor her male cousin. If there were several
daughters,they wereequallyheirs.Originallyonly one amongdaughters
had been heir,but about the middle of the twelfthcenturythis changed,
and daughtersthereaftertook equally.
What did these rules mean in practicalterms?What proportionof
inheritanceswould by common law go to women? To some degree,
the answer depends on the size of the family, that is, on whether
population was rising, falling, or stationary.It depends less on this,
however, than may at first be thought, for as population rises it is
mostly youngerchildrenwho increasein number,but youngerchildren
do not enter into heirship calculations.The chance of the heir being
male or female was relativelystable. A calculationby E. A. Wrigley
illustratesthe point. In a stationarypopulation,there is a forty percent
chance that a man will die leaving no son. When population rises at
the rate experiencedduringthe great growthof Europeanpopulation,
that figurebecomes thirty-twopercent.1It is not to be concludedfrom
these figuresthat women inherited forty or thirty-twopercent of the
time. These figuresdo not indicatethe rate at which women inherited,

The Heiress-at-Law 275
only that the rate, whatever it was, would not change greatly as
population rose. In any case, for the preindustrialera, for the bulk of
recorded time, the reasonableworking hypothesis is that population
was stationary.Mere reflection on a stationarypopulation will soon
suggestthat the proportionof inheritancesthen going to women must
be considerable.Sinceeachgenerationonly reproducesitself,the average
family must in the end be small. Many childrenmay have been born,
but many of them would have died in the lifetime of their father.
Given families small in the end, some considerablenumber would
consist of female children only.
Fortunately,we are no longer dependent upon general reflection.
Demographershave produceda formulathat may be used to calculate
more preciselywhat proportionof inheritanceswould in a stationary
population go to women by common law rules. Wrigleyhas further
calculatedthat in a stationarypopulation twenty percentof men who
marriedleft no children;twenty percentleft daughtersonly; and sixty
percent left one or more sons.2If this calculationis put togetherwith
the common law, twenty percent of inheritanceswould go to women
directly,going from fathersto daughters.More than twenty percentof
inheritanceswould, however,go to women all told. The twentypercent
of men who died without children did have heirs, and some of these
were bound to be female. Under the furtherrules of the common law,
the heir of a man dying without childrenwas firsthis youngerbrother,
or if youngerbrotherwas deceased,any childrenhe had left, male and
female accordingto the rules alreadylaid out. Failingthe brotherand
his children,the sisteror her childrentook. Thoughbrothertook before
sister, an eldest son naturallyhad a greaterchance of having a sister
than a brother.Should there be neitherbrothernor sister,the heir was
sought further back in the male line, first among uncles and their
children, and then among aunts and their children.3Precision is not
possible here, but it is accurateenough to say that about one-quarter
of collateral inheritances would go to women. Thus when indirect
inheritance by collateral females is added to direct inheritance by
daughters,twenty-five percent of all inheritanceswould at common
law go to females.
What the rules meant in practical terms may be seen in another
way-by consideringwhat percentageof woman would at common
law be heiresses.More than one women in a family would often be
heir for, as already noted, females of equal degree took jointly. The
percentageof women who would be heiresses,when co-heiressesare
considered,can readily be reachedthrough Wrigley'sformula. Let us
assume for the sake of simplicitya populationof 100 men producing,

by definition in a stationarysociety, 100 sons and 100 daughters.The
formula indicates that 60 of the sons are eldest sons (meaning eldest
or only sons), and thus tells us that 40 are youngersons. The formula
also indicates that there are 20 families with daughtersonly, where
naturally there must be 20 eldest daughters(that is, eldest or only
daughters).If 60 eldest sons have 40 younger brothersthen 20 eldest
daughtershave 13 youngersisters.Therefore33 out of the total of 100
daughterswould be directlyheiresses,heirsto their fathers.Puttingthe
conclusion in general terms, 33 percent of women in a stationary
society would by common law be directly heiresses. Since a further
number would be heiresseswhen collateralinheritanceis considered,
it is to be calculatedthat nearly42 percentof women wouldbe heiresses
by common law.
Thus despite the well-known generalizationthat the common law
sent estatesto eldest sons, when examinedit is found that in the norm
of a stationarypopulation, the common law would send twenty-five
percent of estates to women. Since by equal division fifty percent of
estates would go to women, the common law cut female inheritance
in half, but only in half. Moreover,forty-twopercentof women would
at common law be heiresses,though many of the heiresseswould be
requiredto divide estates. Fully thirty-threepercent of women would
be directlyheirs of their fathers.In preindustrialtimes, the heiresswas
no rare bird by common law rules.
Such was the common law,but what were the hardfacts?How often
were women who were heiresses-at-lawactuallyheiresses?Evidenceon
the down-to-earthaspect of female inheritanceexists for two widely
separatedperiods that may be compared.
S. F C. Milsom and James Holt in two important articles have
discussed female inheritancein the twelfth and early thirteenthcen-
turies.4While noting that in the period rules were not quite hard and
fast, both portraywomen succeedingaccordingto common law rules.
Wheretherewas no son the daughterwas heir.The daughter'ssuccession
was ensured because the principle of heritabilityof land had been
establishedwhile the feudal system of land tenure gave no right of
testamentary disposition. In other words, wills of land being then
impossible,the common law heir succeededto whateverland his-or
her-father died possessed of. Neither Milsom nor Holt enters into
quantitative analysis, although Holt does point to the number of
baronies that in short order went to females. In effect, both indicate
that in early feudal times somethinglike the figureslaid out above for
female inheritancewere real, not merely theoretic.
Milsom and Holt discuss other aspects of female inheritance,and

both stress-it is the theme of their articles-that in earlyfeudaltimes

a woman's propertywent in fact to her husband,and that the right of
the heiress was less to enjoy propertythan to transmit it. Until she
was widowed, an heiress did not control her property;and possibly
even as widow she might find her son in actual possession. These
aspects of women's history are of great importance,but they will not
be discussed here. Until the end of the nineteenth century the use of
a marriedwoman's landed propertyin law went to her husband;and
for centuriesin practiceit did too. Indeed, among largelandownersit
seems to have remainedthe norm to settle an heiress'sland upon her
husbandfor life. When that greatestof all eighteenth-centuryheiresses,
the Percy heiress, inherited her vast estates, their use went to her
husband,and he who had been an unremarkablebaronetduly became
first duke of Northumberland.Moreover,it became the norm for an
heiressto live as widow with her son in actualpossession.These aspects
of the heiress'shistory need furtherinvestigation,but they are, when
all is said and done, of secondaryimportance.Of prime importanceis
the question of entitlement:Who was the heir?What Milsom and Holt
make clear is that in early feudal times the daughterwhere there was
no son was heir. She, or her husband through her, did take. She was
the heir in the sense that her father'sbrotherwas not.
Thanks to the statistical work of Lawrenceand Jeanne Stone we
have figures for inheritanceby women at a much later date. In An
OpenElite?,a book that focuses on the relationsbetweenbusinessmen
and landowners, the Stones have presented as thorough a study of
landed inheritanceas we are ever likely to have.5They have analyzed
the dispositions of over 2,000 owners of 362 country houses in 3
Englishcounties from 1540 to 1879. The studydealsin countryhouses,
but the houses are but the visible and countable hearts of landed
estates. Though the coverage of one county is imperfect,the Stones'
study reasonablywell representsthe body of Englishlandowners.6
Thereis no need to considerthe Stones'figureswith statisticalnicety,
comparingthem periodby period.The orderof magnitudethey display
is too clear for that to be necessary.In one table the Stones indicate
what proportion of those inheritancesthat went directly from father
to child went to daughtersand what proportionto sons.7If the average
is takenoverthe period 1540to 1780then 6 percentof suchinheritances
went to daughtersand 94 percentto sons. In a second table the Stones
indicate what proportionof all inheritances,direct and indirect, went
to women.8If a similaraverageis taken, then 8 percentwent to women
and 92 percentto men. These figuresfor female inheritance,6 percent
and 8 percent,are to be set besidethe comparablefiguresto be expected

at common law, 20 and 25 percentrespectively.Landownershad thus
cut the rate of female succession dramatically,to less than one-third
that by common law rules.Or to put it anotherway,since the common
law itself when comparedto equal division cut female inheritancein
half, landownershad actually cut it roughly to one-sixth. As for the
number of women reduced,whereas33 percentof women would have
inheritedfrom their fathersif the common law had prevailed,only 10
percentactuallydid so; and whereas42 percentof women would have
inherited all told if the common law had prevailed,only 13 percent
actually did so. These figurestell a decided story of the reduction of
female inheritance.
While the figurestell their story,they do not tell quite so complete
a story as it is possible to tell. How far, it may be asked, could
inheritanceby femalesbe reduced?As John Knox bewailed,reviewing
what he called the monstrous regiment of women who were heirs to
EdwardVI, sometimesGod unaccountablyleavesonly womenwherever
one looks in the family tree. The question how far female inheritance
could be reducedis not answerablein the absoluteform in which the
question has been phrased,but an answersufficientto the point is to
be had if the rate at which patrilinesdie out is considered.When a
patrilinedies out, a femalehas become at leastunavoidable.The female
thus unavoidablemay succeed to the estate or she may not; but if she
does not, the male who succeeds must be her son and must trace his
inheritance through her. At the end of a patriline, then, inheritance
need not go to a woman, but it must go eitherto or througha woman.
From an analysis of the baronetciescreatedby James I, Peter Laslett
has calculated that almost one-eighth of patrilinesdied out at each
succession between roughly 1610 and 1760.9 That is to say, twelve
percentof inheritanceshad by the dispensationof God or natureeither
to go to women or throughwomen.
The Stonesprovidea figurethat is to be comparedwith this, although
they do not make the comparison.10Their table showing how often
women inherited also shows how often women had inheritance go
through them." Taking the average,thirteen percent of inheritances
between 1540 and 1760 went either to or through women. This is a
rate little above what was biologicallyunavoidable.It is clear then not
only that landownershad much reduced female inheritance,but also
that they had reducedit almost as far as naturepermitted.
The question discussed so far has been whether the heiress-at-law
succeeded to the estate. This is naturallynot the only question that
arises about her fortunes. As means were developed by which the
collateralmale came to dislodgeher from the succession,the question

arises of the division of propertybetween heiress and collateralmale.

Fathers do not utterly disinherit their daughters in favor of their
nephews.Some provisionwas alwaysmade by landownersfor the lesser
members of the family, for younger sons and ordinarydaughtersand
for the postponed heiress, the heiress-at-lawwho was not to succeed
to the core of the estate. Nor was paternal affection the only factor
that guaranteedthe heiress a share of the property.The husbands of
heiresseswere interestedin guaranteeingsubstanceto theirwives'rights
by common law. The postponed heiress then took some part of the
estate or some charge upon it. Thus the provision for the postponed
heiress needs discussion.
The strict settlement is of paramountimportancein this aspect of
the heiress's history. Before the era of settlement, provision for the
postponed heiress was generally at the discretion of her father,who
had come to have power of dispositionover his estate, and it was also
influencedby her husband'sinterests.Under settlement,the fatherwas
reduced to a life tenancy of his estate by a deed that had been made
at his marriage,a deed that entailed the estate in the male line and
provided portions, that is set sums of money, for any children to be
born of the marriagewho were not to succeed to the estate. What the
strict settlement made possible, when fully developed, was estate
planning at marriage.Estate planning at marriagewas planning un-
dertakenwhen the integrityof the estateand the aristocraticimperative
that demandeddescent in the patrilinehad fullest sway.It was a means
of limiting in advancechargesfor a family,limiting them more strictly
in proportionto estate value. It aimed first and foremost at limiting
the interest of the heiress-at-law.That she was the principalobject of
attack is proved by a fact that has long gone unnoticed: The strict
settlements of Orlando Bridgmanconcern themselves only with her
among children.12 Not until later were younger childrena concern of
settlement, although until they too were put under it, settlement's
usefulnessfor reducingthe heiress was circumscribedby the impossi-
bility of employing the device comprehensivelyon estates. In short,
limiting in advance the claims of the heiress-at-lawand sending the
estate as little reduced as possible to the collateralmale is what the
strict settlement is primarilyabout.
Unfortunately,it is impossibleto compare directlythe propertythe
postponed heiress receivedbefore and after the invention of the strict
settlement.The difficultyis that before settlementshe usually received
land whose value is unstated,value that must be nearlyimpossibleto
determine in any statisticallyvalid way. Comparisonbefore and after
settlement of the heiress'sinteresthas thus never been undertaken.It

has been established,however,that portions for ordinarydaughters-
long normallyin cash-fell underthe strictsettlementas logicallythey
should have.13 The logical argumentis the more telling in the case of
the heiress.Thus though the sums cannot be pointed to, the direction
of movement is not to be doubted.
In short,the historyof the heiressis of a greatdownwardslide. From
once succeedingaccordingto common law rules, she came to succeed
as seldom as possible. With the strict settlement of the eighteenth
century she reachedher nadir.She was not to succeed except as a last
resort;inheritancewould not be traced through her except as a last
resort;and her portion, calculatedbefore her birth, was calculatedat
a time when the interestsof the patrilinewere uppermost.In a word,
Englishlandownershad moved from lineal to patrilinealprinciples.
There is a change of attitudeto women as heirs in this history that
cries out for attention. The prejudiceagainstwomen as heirs is often
passed off as the result of the military obligationsthat were attached
to land in feudal times. Possibly the roots of the prejudicelie there,
although they may lie far deeper,but militaryconsiderationswill not
take us far in accounting for the facts. Why should the exclusion of
women have become more rigorous as the feudal levy lumbered its
way out of history?There is a change of attitude to women as heirs
above and beyond any militaryjustification.
Holt has describedthe early attitude thus: "In the absence of male
heirs in the same generation, [the daughter]was the only means of
continuing the lineage, the only legitimateroute wherebyher father's
blood could be transmitted.Her children were his grandchildrenjust
as herbrother'smighthave been. This determinedthe woman'sposition
as heir."4In a word, it was natural for daughtersto succeed if there
was no son. For contrast,Dr. Johnson'ssentimentsmay be cited: "An
ancient estate should alwaysgo to a male. It is mighty foolish to let a
strangerhave it because he marriedyour daughter... "15There is a
change of attitude to blood here, nothing less indeed than a flying in
the face of nature. It is, after all, one thing for a fatherto favor one
child out of a brood of children, and another thing for him to favor
his nephew over his daughter.The successionof a female came to be
held not the natural means of continuing the family,but the end of
the family,its very dying out, as terminologycan even currentlytestify.
Surely,a curious idea when a female continues the blood of her father
actually more certainlythan a son ever can.
It is beyond the scope of this articleto trace this change of attitude
in detail. A few signpoststhat must mark its growthcan, however,be
suggested.To begin with, there was the twelfth-centurychange in the

common law's definition of heiress, by which all daughtersnot just

one of them came to inheritwhen sons werelacking.Holt has suggested
that the aim of the change was to better the younger son's chance of
marryingan heiress.16Verylikely it was, but it is hard to imagine that
such a change would not have caused misgivings.The prospect of a
divided estate, perhaps divided even three or four ways, must have
renderedthe prospectof female heirs newly disagreeable.
Later,the heiress was bound to lose when the monarchy began to
create baroniesby letterspatent, replacingbaroniesin fee, the patents
specifyingthat the title was to go in tail male. As the other ranks of
the peeragewere establishedindividualcreationswere virtuallyalways
in tail male too. Titled landownersthus came to face the possibility,
as they had not with baronies in fee, that land would go to daughter
while title went to collateral male. Titles were unthinkablewithout
land to supportthem. Thus the Crown had made the common law a
problem for peers-if it had not already become that. Peers would
inevitablyhave begun to apply Salic principlesto partsof their estates.
Presumablythe nobles who went off with Henry V warringto France
on behalf of his claim through the female line to the throne of that
countryneverreflectedon theiror the Englishmonarchy'sinconsistency
about Salic principles. James I even diverted the descent of some
ancient dignities that were still in fee to tail male. (When in the
nineteenth century,however,Queen Victoria wanted to convert some
dignities the other way round, she was persuadedthat the Crown had
not power to alter descents.)'7As a result of the adoptionof patrilineal
principles,the genealogistJ. H. Round notes, "the three most famous
ducal castles in England,Alnwick,Arundel,and Belvoir [passed]away
from the heirsof theirfeudallordsto the familiesof Smithson,Howard,
and Manners,who are not their presentrepresentatives."'8
Titles cannot, however,account for the whole story,or for anything
but a minor partof it. England'slandowners,titled and untitled,moved
towardspatrilinealprinciples.The Crownitselfthoughdid not. "What's
in a Name?" Holt has asked, discussing the gradual adoption of
surnamesin medieval England.'9A great deal it would seem.
In 1594 Chief Justice Popham of Common Pleas opined that it was
"utterlycontraryto the providenceof God" to try to keep land "always
in the same sex."20Plowden'swords in a disputed settlementin 1565
were more telling of the way things were going:
By the continuance in the name of the Baynton's [Andrew Baynton]
intended to exclude all females from inheritingthis land,... for a female
by marriagechanges her surname and loses her father'sname, whereas

the male continues his first name. Sir, various good reasonsmight move
him to do that. For God has divided reasonable creatures into two
sexes.... The male is superior,the female inferior.... Also men are for
the most part more reasonablethan women, and have more discretion
in guiding things than women have; for men are more apt than women
in all government... and perhapsAndrewBayntonwas thinkingof this
and felt that the profitsof his inheritancewouldnot be so well spent... nor
the lands so well orderedby woman as by man, nor hospitality so well
kept... if this inheritanceshould come to females;which is something
a man cannot think withoutgrief.... Also by establishingthe inheritance
in the heirs male having the name of Baynton, Andrew would thereby
obtain fame and memory with his posterity; and every man has an
appetite for fame after his death, and this appetite... is laudable.And
to establish a great inheritance(as this is) in one name is a feat which
begets great fame with his posterity....21
II
The scale of the movement againstthe heiress could not be appre-

ciated before the figuresthat have been assembledand analyzedabove
hadbecome available.The directionof the heiress'shistoryhas,however,
always been perceptiblefrom legal considerations.A comparison of
eitheran entail in tail male or a few strictsettlementswith the common
law rules of inheritance would suggest it. Moreover,reflection on a
stationary population would suggest that heiresses-at-lawwere not
uncommon, and thus that they deservedconsideration.How then, it
might be asked, has the heiressbeen perceivedin historicalworks on
landownership?
Given the perceptibleimportance of the heiress, it is surprisingto
find that two out of the three majorworkson medievallandownership
virtuallyignore her. G. A. Holmes, in his study of the estates of the
higher nobility in the fourteenthcentury,brieflynotes the importance
that women then had as propertyholders, but he says nothing about
the lessening of that importance,and in his conclusion the heiress is
quite forgotten.The medievallandownerdesired"ratherto defeatthan
to promotethe operationof primogeniture,to buy landsfor his younger
sons, husbandsfor his daughtersand massesfor his soul."22The heiress
has disappearedin a conclusion that considers only the division of
property between eldest son and younger children. The question of
who the heir was if there was no son has not been faced, though it
was a question to which the common law gave one answer and to
which landowners were coming to give another. It is the same in

J. M. W. Bean's The Decline of English Feudalism.Landownerswere

intent on evading "a system of landed inheritancewhich was based on
primogeniture";they desired"to providefor youngersons and daugh-
ters."23Again the only question consideredis the division of property
between eldest son and younger children;again daughtersare held to
have been benefitedwith no notice taken of the fact that daughtersfell
at law into two classes not one; again the heiressis invisible.
The heiress surfaces in K. B. McFarlane'sThe Nobility of Later
Medieval England. She is separatedout from ordinarydaughtersand
the decline of her fortunesis pointed to. McFarlane,however,simply
takes it for grantedshe should be put down. It is a "sad prospect"for
an estate "to go out of the family'spossession"with a female heir. "It
is not surprisingthat means were sought to enable those threatenedto
avoid such a disaster."24 Apparentlylittle more need be said. The entail
is noted, but beyond that there is no discussion. Virtuallynothing is
said about the provisionfor postponedheiresses,althoughit is a major
theme of the book that medievallandownersmade largeprovisionout
of their estatesfor their youngersons.2 Logically,this implies a limited
use of the entail. McFarlaneclearly recognizesthe problem that the
common law came to pose for landowners,but the heiressis summarily
dismissed from the scene ratherthan consideredin any detail.
Historians who deal with landownershipin the seventeenth and
eighteenth centuries have on the other hand devoted much attention
to female inheritance.They have recognizedit as a significantmatter
in estateand familyhistory.Unfortunately,seriousmisperceptionsmark
the influentialliteraturethey have produced.First,the legal instrument
that was developed in the period, the strict settlement, is at best
confusedlytreated.While its aim is generallyrecognizedto have been
that of preservingestates, it is neverthelessalso treated as if its aim
were the contrary,that of increasingdaughters'portions. What can
have given rise to the idea that the strict settlement evidenced a new
and special concern for daughterscan in a sense only be speculated
upon, for demographicargumentsextraneousto the device were much
appealedto, but the intrinsicevidence came from OrlandoBridgman's
Conveyances.26 The marginalnotationsin Bridgman'sprecedentseasily
suggest the idea, conspicuously indicating "portions for daughters"
without mentioning younger sons. Only Bridgman'stext, virtually
unintelligibleto pioneering social historians, makes it clear that the
portions were for some daughtersonly. They were for daughtersin
default of sons, that is, for daughterswho were heiresses-at-law,and
these in the logic of their rightswere not being favored,but limited.27
Whateverthe origin of the idea, a series of works on landed estates

and families has been written in which interest concentratesheavily
on portions for daughters whose movement is ever deemed to be
upward.Although little attention in these works is ordinarilydirected
to the heiress-at-law-who indeed is again rather lost sight of, this
time among "well-portioneddaughters"-the implicationis that female
inheritancewas on the rise.
Second, the common law sometimes suffersactual misinterpretation
in the literatureof this period. If the collateralmale is held to be heir-
at-law rather than the daughter,judgments will inevitably be made
within an unreal legal framework.Unfortunately,the two principal
worksthat discusslanded inheritanceover the span from late medieval
times to the era of the strict settlementare based on the belief that the
collateral male was heir-at-law,although the works otherwise have
considerabledifferences.
This belief underlies J. P. Cooper's long and well-known article-
almost a small book in length-that runs from the fifteenthcentury
to the eighteenth. Curiously,Cooper begins by attemptingto set out
the true facts about the right of females to inherit land, disarmingly
confessing that he-along he thought with others-had once held
mistakenideas on the subject.Alas, thoughhe emphasizesthat females
were not totally excluded at common law, he lays it down that "males
of remoter degree took priority over females."28In other words, the
collateralmale is heir before the daughter.An empiricalaccount then
follows that tells of a runningconflictbetweendaughtersand collateral
males, who are respectivelycalled heirs general and heirs male. The
terminology is to be remarked.Had Cooper realized that the words
heirs generalmean heirs by common law, he would have had to revise
his statementof the law, and would have seen deeperinto the conflict
that he perceptivelysenses. (Cooperis not the only historianto speak
of daughtersas heirs general while holding that the collateralmale is
heir-at-law.)It is a merit of Cooper'swork that he perceivesthe conflict
between daughters and collateral males and that he discusses it at
length, but under the circumstanceshe can see it only in a half light.
His first statement about his "heirsgeneral"is that fathersin making
settlements "would want provision for female issue when male was
lacking."29The suggestion is of a fatherly act of caring, but as the
females concerned were heirs-at-law,what landownerswere busy en-
gineeringin their settlementswas the loweringof their provision.Later,
discussingthe extent of the provision,Cooperhas this to say: "Despite
the widespreaddesire of peers to settle major parts of their estates in
tail male with perpetuities,no clear trend to the disadvantageof heirs
generalemergesin the second half of the sixteenthcentury.The Statute

of Wills made it seem that at least a third was what the heirs general
might expect."30It is impossible for Cooper to see the import of that
third. Though he later speaks of "the process of limiting the heir
general,"thus perceivingthat she sufferedloss in the conflict,he cannot
appreciatethe extent of her loss becausehe does not perceiveher initial
position.31Nor can he perceivethe basis in law for protestsby her or
on her behalf. These are dismissedas "providentialarguments"about
"the divine right of heirs general."32
The common law is also misunderstoodin LloydBonfield'sMarriage
Settlements, a book that traces the transformationof the medieval
marriagesettlement into the strict settlement and attempts to assess
the social meaning of the latter. While Bonfield never lays out the
common law rules, he clearlyassumesthat the collateralmale was heir
ratherthan the daughter.Mentioningthat a settlementcould set aside
common law rules, he gives as example a settlementin which a father
granted remainders(in effect the right of succession)to his daughters
after his sons rather than granting them to collateral males.33This
settlement does not set aside common law rules but follows them.
Later there appears the general statement that settlements could be
used "to disinheritthe collateralheir male by limiting remaindersto
female childrenin default of male issue."34What settlementscould do
was the opposite of course: They could disinherit female heirs by
limitingremaindersto collateralmales.Havingin factreversedcommon
law rights, Bonfield is naturally handicappedin assessing the social
meaning of the developments he traces. Thus he is aware that early
strict settlement, like Orlando Bridgman'sprecedents,provided only
for some daughters-and in a valuable discussion he shows when
settlements came to provide for all children-but there is no insight
possible into why early settlorsshould have made such apparentlyodd
family arrangements.Portions granted to daughtersin lieu of their
rightto inheritbecome proofthat landowners"werefarmore concerned
with their daughters and granddaughtersthan with their collateral
heirs."35Settlement,it is finally concluded, "indicatesthat the notion
of patrilinealdescent... was on the wane."36
The treatmentof the heiressin works of history,it might perhapsbe
said, has been almost as unfortunateas her treatmentat the hands of
history itself.
III
It is clearthat the heiresssuffereda greatdecline betweenthe system

of feudal tenures in the thirteenth century and that of the strict

settlement in the eighteenth.The course of her decline between those
times needs to be traced. Between the thirteenthand the eighteenth
centuries,majordevelopmentsin Englishreal propertylaw took place,
and in all of them the heiress had an interest or was a factor being
conjuredwith. She was a factor in the developmentof the entail and
in its destruction;in uses and the Statute of Uses; in the Statute of
Wills; and in the antecedent form of the strict settlement and the
invention of the trustees to preserve contingent remainders.When
these developmentsare consideredfrom her point of view the evolution
of real propertylaw takes on a new aspect.
The entail, which in its common form of tail male representsa
conspicuous move against the heiress, requiresfirst consideration.In
practiceit had differentpotentialityat differenttimes, and it can only
be discussedas a changingphenomenon.
The tenurialsystem,as has been seen, guaranteedthat the heir would
succeedto whateverland his-or her-father died possessedof. It was
not impossible,however,for a fatherto dispose of land in his lifetime.
The entail arose from this fact, and it arose out of a naturalhuman
desire. A fatherwanted some of his land to go to youngersons and to
daughterswho were not heiresses.The originalentail was thus a grant
of land to a younger son or daughterupon his or her marriage,the
maritagium.It was a grant conditional upon the marriageproducing
heirs, heirsas definedby the deed, heirsmale if so desired.The purpose
of such a grant was double-sided.On the one hand, it aimed to allow
the establishmentof a junior branchof the family;on the other hand,
it aimed to ensure that should the junior branch fail to become
established,then the land grantedwould returnto the senior branch.
As long as the entail was used as provision for younger children, it
was no more a threatto heirs femalethan to heirsmale. Land departed
the main branchof the family from time to time, but its departuredid
not alter inheritance rights in the main estate. Moreover,given the
demographicfacts earlieroutlined, land that departedmust frequently
have returned.
The entail, however, introduced the idea of greaterdiscrimination
against females than that embodied in the common law. Because the
entail could specifythe genderof those to take under it, femalescould
be cut out so long as the entail lasted. By the statuteDe donis (1285),
at least as that rather enigmatic statute came to be interpreted,an
entail, which had earlierbeen of limited duration,became perpetual.
It could direct land from male to male so long as there were males
anywhereamong the settlor'sdescendants,regardlessof females who
by common law were heirs. The entail had thus come to embody the

conceptof land descendingindefinitelyby a mode of successiondifferent

from that of the common law, tail male ratherthan tail general. The
possibility arose that estates might be entailed on eldest sons thus
keeping females out of succession to the family estate for so long as
that was biologically possible. Clearly,entails could be used for two
differentpurposes-indeed for mutuallyexclusivepurposes-either to
distributeland to younger children or to limit it indefinitelyto eldest
sons.
There is no statisticalevidence as to how entails were used, but the
increasinghostility to female heirs must have meant some use of such
a weapon against them. Nevertheless,there are groundsfor hesitating
beforeascribinglargeimportanceto entailsusedin this way.A "juridical
monster"Milsom has called the entail.37Though in using these words
Milsom would seem to have had only the entail's presumptuous
duration in mind, the words are applicableto its family principle as
well. The landownerwho entailedhis estate on his eldest son no doubt
providedfor his youngerchildrenseparately,but he inevitablyrendered
the next generationunable to provide for its children,either younger
children or heiresses-at-law.The landowner might, of course, entail
only a part of his land on his eldest son and allow part to descend to
son in fee simple. Such a landownerwould be acknowledgingtacitly
the inherent problem of the entail. Even so, he would likely only
postpone the problem of younger childrenand heiresses.Some future
heir under the entail could well find that entailed land was all that he
possessed.Europeanentails were not of this uncompromisingsort, and
the very origin of the Englishentail as a provisionfor youngerchildren
sufficesto indicatethat utterlydisinheritingyoungerchildrenwas never
acceptable.If younger childrenwere not to be disinherited,much less
were daughterswho were heiresses-at-law.The logic of the entail was
such that it solved one inheritanceproblem only by creatinganother.
It would be surprisingonly if entails had not become barrable.The
subject of barring is, however, a complex one. It would seem that
almost from the beginningmeans were sought by which entails might
be brought to an end, although what general results were achieved
remains unclear. Indeed, Milsom has declared categoricallythat we
know little of the entail between the fourteenth and the sixteenth
century."We do not know in point of law how secure it was, or was
thought to be; nor do we know in point of fact what use was made of
it, or how long individual entails actually lasted."38What is clear is
that efficientmeans of barringweredevelopedby the end of the fifteenth
century and that they were soon in common use. The entail had thus

become for all practical purposes the equivalent of an estate in fee
simple.
This was not to be quite the end of the story. Some landowners
respondedby addingto theirdeeds of entail clausesdesignedto prevent
barring,clausesof perpetuity.Thus a final questionabout entailsarises:
How commonly were clauses of perpetuityemployed?It has tradition-
ally been held that these clauses were ephemeral,unusual expedients
dubious in law. From the account of Sir John Dalrymplein the mid-
eighteenthcenturyto that of SirFrederickPollockin the late nineteenth,
it has been held that the period from the end of the fifteenthcentury
to the end of the seventeenth, when the strict settlement became
common, was one of general freedom of alienation.39Fortunately,in
this case thereis at least some empiricalevidence,and it goes to support
the traditionalview.
Mary Finch has studied the estates of five families from 1540 to
1640. This is a small sample, to be sure, but it is more than an
impression from haphazard sources, or from sources bound to be
biased, such as law cases or private acts of Parliament.In her five
families Finch finds three perpetuities,but upon scrutinythey amount
to little. One was not on the principalestate of the family,but on an
estate accruingto it through marriageto the heiress of a legal family.
One hardly deservesthe name perpetuity,for it was designedto limit
the power of a particulareldest son, and it allowedgrandsonto succeed
freely as tenant in tail. It lasted from 1534 to 1552. Significantly,both
these perpetuitiesprovednuisances.In shortordereach had to be twice
altered by act of Parliament,three at least of the four acts being to
allow provision for youngerchildren.The third perpetuityis found in
a settlement made in 1583 in which the settlor and his brother,his
successor,maintained power to alter the uses. Since both men were
dead by 1587, this perpetuity may have lasted until 1614, when
perpetuitieswere finally struck down. In sum, on the five principal
estates from 1540 to 1614-through roughly four hundred estate
years-perpetuities existed for at most forty-five years.40Generally,
Finch portrayslandownersin possession of their estates disposing of
them by deed or will as they chose.
The entail was not, however,the only instrumentavailableagainst
the heiress. There was simply the use, that is to say the will, for to
make a will was the common purpose of the use. As noted earlier,
feudal tenures had precludedwills of land; and strictlyspeaking,wills
of land remained forbidden until 1540. Well before that they were
effectedby subterfuge.Landownersgrantedtheir estatesto feoffees,in
modem terms to trustees, continuing to enjoy the beneficial use of

their estates but not dying possessed of land. Throughinstructionsto

theirfeoffees,who corporatelysurvived,they wereableto deviseinterests
to their children,or to others,as they chose. Paradoxically,landowners
divested themselves of their land in order to deal freely with it. Both
Holmes and Bean find that estateswere commonly held to uses by the
end of the fourteenthcentury.4
Both authors stress the landowner's desire to effect dispositions
throughuses that would providefor youngerchildren,who by common
law rules inheritednothing. Throughuses landownersare portrayedas
providingfor their families.What needs to be stressedis that providing
for their families according to their wishes meant two things: better
provision for younger children than what the common law afforded,
and worse provision for the heiress. She could, however, be flexibly
treated through wills, the rigidities of the entail avoided. Once the
heiress-at-lawis recognized, the significance of uses in her history
becomes obvious. Conversely,so must her significancein the history
of uses.
Uses were to lead to a well-knownconflict with the Crown, and to
the promulgationof the Statute of Uses and the Statute of Wills. In
this conflict the heiresshad much interest,but like her interestin uses
themselves, it has tended to escape notice.
The Crown'sobjection to uses was that it lost the feudal income to
which it was entitled from the wardship of heirs who were minors.
Minors never came into legal possession of estates that were held by
feoffees. Given the great benefit that uses conferredupon landowners
by allowing them to do what they wished about estates and families,
it is to be doubted that tax evasion was much in their minds as they
took to uses. Be that as it may, the Crown found its tax base eroding,
and Henry VIII set out to restore it. By the Statute of Uses of 1536,
he boldly put a stop to the fiction that the man in possession of the
land was not its legal owner. Wills again became impossible, and the
common law heir was restored.Land could not be willed away from
the heir male, a fact everywhererecognized;nor could it be willed
away from the heir female either, which fact goes unnoticed, crucial
though the heiresswas in landowners'thinking.
Landownersin theirlifetimecould still entailland awayfromfemales.
If they did-and they would now have to use a dubiouslyvalid clause
of perpetuity-they storedup troublefor the future.This is why entails
had become barrable,and landownershad taken to uses in the first
place. The Statute of Uses was not to be borne. The king had forced
it through an unwilling Parliament,and its repeal became one of the
demands of the armed rebellion known as the Pilgrimageof Grace.

Henry soon recognizedthat he had overreachedhimself. Four years

later he grantedin the Statute of Wills a large power of testamentary
disposition. All land held by socage tenure became disposableby will,
as did two-thirdsof land held by knight service. The Statute of Wills
did no more than recognize reality,and thus it representsno veering
from the trend of the precedingseveral centuries.It marks, however,
a greattransitionfrom earlyfeudaltimes. It has been seen as signalling
the victory of youngerchildren.By the same token, it signalsthe defeat
of the heiress. Both classes were involved in what the Statute of Wills
recognized:The common law rules of succession were moribund, if
not yet quite dead.
Though landownershad sought it through uses and the barringof
entails, freedom to arrangeestate mattersas they chose could only be
a negative virtue in their eyes. Freedom of alienation offers no real
means of preservingestates.Wills are essentiallythe oppositeof entails,
allowingscope for whims and passionsof all sorts,particularlyallowing
large scope for paternalaffection.Comparedto the common law, wills
would cut the heiressdown, but not reliably,nor possiblysubstantially.
A positive restrainingdevice was what aristocraticlandownersrequired,
some device to restrain parental generosity.Aristocraticlandowners
almost everywheredeveloped a legal device of this sort. It was to be
arrived at in England through the marriage settlement, specifically
throughthe strict settlement.
Marriagesettlementswere not new in Englishlanded society.Grants
had always been made on children'smarriages,the maritagiumgoing
back to early feudal times, and no doubt in some form far beyond
that. The strict settlementwas a marriagesettlementwith a difference.
It was not like the maritagium a provision for a particularchild. It
was the means by which estate and family affairscould be arrangedin
all details at the marriageof the heir male. Estateplanningat marriage
is what it amounted to; and estate planning at marriagewas estate
planning undertaken with the claims of the patriline uppermost in
mind as opposedto the claimsof unbornyoungerchildrenand heiresses-
at-law.
The form of settlement that immediately precededthe strict is of
particularinterest. This is not because of its practicalimportance,for
it could havehad little (exceptpoliticallyas protectionagainstattainder).
It is of interestas a faulty prototypeis of interestin pointing up what
makes for the later workingmachine. In the early seventeenthcentury
a form of marriagesettlementis commonly found in which the groom
took a life interest only and the remainderin tail went to his unborn
son. That is to say,the entail instead of going to the groom as it would

earlier have done, was projected forward onto his unborn son, the
groombeing reducedto a life tenancy.The faultof this device,according
to the usual explanation,was that the land was not certainto descend
to the son, because the entail upon him was contingent until he was
born; and while it was contingent it was destructibleby the tenant for
life. (The law,on not unreasonablegrounds,for long declinedto protect
estates that only might come into existence.) Thus though he was
nominally a tenant for life, the groom could alienate before he had a
son. Indeed, he would often have been free to alienate even after the
birth of the son, free throughouthis life to alienate.42The trusteesto
preserve contingent remainders,whose invention turned this device
into the strict settlement,are thus declaredin the usual explanationto
have been necessary to secure the unborn son. To be sure, so they
were, but that is not the real story.A strict settlementdealt with more
than fathersand sons, beingconcernedaboveall to lay out the succession
in case there should be no son. Comparedto the strict settlementthe
fault of the prototypewas that any remaindersto collateralmales were
insecure. The man who never had a son, but who did have daughters,
was not only free to destroy any remaindersto collateralmales, but
would inherentlyhave a motive for doing so. The prototypethen was
not up to ensuring the patriline;and ensuring the patriline was the
object. In other words, the trusteesto preservecontingent remainders
are not realisticallyto be seen as guaranteeingthe descentto the unborn
son, although they did that. (He was after all the heir-at-law.)What
the trustees are realisticallyto be seen as doing is guaranteeingthe
descent to collateralmales.
Provision was necessary for the heiress, of course, or the scheme
could not work. Without such provision it would have had the faults
of the unbarrableentail. Under a strict settlementprovision could be
made securelyfor the heiress-and subsequentlyforyoungerchildren-
because the trustees to preservecontingent remainders,in preventing
the destruction of the settlement, in effect prevented as well the
destruction of trusts to raise portions. The provision would not only
be secure,but also-what is most important-it wouldbe prospectively
determined. By those "portions for daughters"at one and the same
time, the scheme was made humanly acceptableand the heiress was
fobbed off with a portion determined at her father'smarriagerather
than by his will. Thus with the strict settlementa workablerestraining
device had come into existence, one that made comprehensiveestate
settlements possible. The heiress was granted a portion determined
before her birth and accordinglylimited, while the trusteesto preserve
contingent remainders guaranteed the descent of the estate in the

patriline.This is the essence of OrlandoBridgman'swork, althoughit
has not been clearly perceived.
The history of English real propertylaw is, then, much to be seen
as the effort by large landownersto overcome the common law rights
of daughters."Puttingdown the heiress-at-law"would be a not inap-
propriatesubtitle for that history.It was heiresseswho threatenedto
divide estates. It was heiresseswhose rights threatenedto leave titles
bare of land. It was heiresseswho would alterthe name tags associated
with estates. And heiresseswere no remote possibility.Younger sons
and ordinarydaughterswere less a threat, less a problem. From the
entail, to the use, to the strict settlement, it is the heiress-at-lawwho
principallyaccounts for the developmentof Englishreal propertylaw.
Putting the female heir into the historyof real propertylaw has not
merely added a peripheralfemale element to an old story,leaving its
fundamentalsunchanged.It has meant discoveringwho the principal
characterand what the principalaction of the story were.
IV
Consideringreal propertylaw againsta common law rule of descent

is a method of consideringit that naturallyinvites extension. While
the history of that body of law is above all to be seen as the effortby
great landownersto overcome the common law rightsof daughters,it
is furtherto be seen as their effortto overcomeall the majorcommon
law rules of inheritance.Landownershad their rules, and the common
law had its; and they differed in every major respect. They differed
aboutthe successionof femalesto land. They differedaboutthe widow's
dower. They differed as well about the complete disinheritanceof
youngerchildren.Landowners'legal historyis one long struggleagainst
the common law rules of inheritance.
Histories of real propertylaw, however, are not organizedaround
this perception.They find their organizingprinciplein the problemof
perpetuities.As they presentit, landowners'legal historyruns from De
donis and the developmentof perpetualentailsin the thirteenthcentury,
on through the cases several hundred years later establishing the
barrabilityof entails, Taltarum'scase and Mary Portington's,then on
to the strict settlementof the eighteenthcentury,which is describedas
a roundaboutform of entail. When uses are mentioned,there is some
referenceto younger children,but then always follows a discussionof
how uses could be employed in the search for enduring settlements.
The story is of a runningbattle between landownersand the common

law judges over facilities for tying up land. This view is embedded in
the structureof legalhistories,fromFrederickPollock'sin the nineteenth
century, through William Holdsworth'sand Theodore Plucknett'sin
the early half of this century,to those that have been written since.
"The desireof greatlandowners,"said Pollock in wordsthat have often
been quoted, "has constantly been to make the strictest settlements
which the law would allow."43
There are good groundsfor telling the story this way. There is above
all doctrinalground. Law students need the precedentsgoverningthe
creationof futureinterestslaid out. Moreover,landownerswantedtheir
estates preserved;and in a complicatedway, which needs to be under-
stood, one strictsettlementtended to lead to another,and thus to long-
term restrictionsover estates through a chain of settlement and reset-
tlement that is to be likened to a system of entail.
Nevertheless,the question arises whether concentratingon perpetu-
ities is the most realisticway of treatinglandowners'history.How can
a hankeringafterperpetuitiesexplainthe fourteenth-centurylandowner,
busy developing uses? Cooper points to the difficultywhen he notes
the paradox of the simultaneousgrowth of freedom of alienation and
perpetualentails.44Moreover,the strict settlement as an entail was in
practice notably inefficient-not so inefficient as two investigations
have suggested(one of them my own) but notably inefficient all the
same.45As a chain, it fundamentallydepended upon fathersliving to
the marriage of eldest sons. They quite often did not do so, and
landowners must have perceived that the system of settlement and
resettlementwas by no means certainto run uninterruptedlyfor long.
Nevertheless settlement became and remained a ritual in aristocratic
society, a ceremony normally accompanyingthe marriageof the heir
male. If social reality is the concern, then the content of landowners'
legal devices needs considerationas much as their duration.
If landowners had reservationsabout perpetuities,the strict settle-
ment, the culmination of their interactionwith the common law, had
a short-termcontent that itself contributedto estate preservation.A
deed of settlement certainly laid out affairs for one generation. It
restrictedthe son on his succession to a life tenancy with a limited
power of providing for his unborn children and his widow; and it
determinedhis heir.Thesearethe decisionson whichestatepreservation
depends in the next instance, and they deal with the nitty-grittyof
estatepreservation,heirshipand the divisionof property.In landowners'
eyes long-termrestrictionswere probablyas icing on cake, a desirable
extra,but not what was essential.Wereallymay be surethat landowners
had their eyes fixed less on misty generationsin the future than on

what the common law proposed for their estates in the foreseeable
future unless they took care to determine otherwise.A more realistic
way of treatinglandowners'legal historywould make these immediate
mattersprimary.Thus landowners'legal historyis most realisticallyto
be seen not against the backgroundof perpetuities,but against the
common law rules of inheritance.
If the history of real propertylaw is seen in these terms it takes on
a coherence and a naturalness-one might even say a simplicity-
that it does not otherwisehave. What landownerswanted,or had come
to want, was some means of husbandingresourcesin the hands of the
male head of the family while not utterly disinheriting the other
membersof the family.Under the principlesof Englishlaw, what they
wanted was not easily obtained.They had firstto dispose of rules that
providedfor female inheritancefar more generouslythan they thought
proper, and for younger children less generously.Once they gained
freedom of alienation, however, they lacked any positive restraining
device, which only at length was the strict settlementto confer upon
them. Though the strict settlementwas far from perfectin operation,
it reflectedand reinforcedaristocraticideas on heirship as these had
come to be, reverencefor the patrilineand the rejectionof the female
heir.
NOTES
1. E. A. Wrigley,"FertilityStrategyfor the Individualand the Group,"in Historical

Studies in ChangingFertility,ed. CharlesTilly (Princeton,1978), 150-51.
2. Ibid., 139.
3. For a full descriptionof the rules of succession,see A. W. B. Simpson,A History
of the Land Law (Oxford, 1986), 56-63.
4. S. F C. Milsom, "Inheritanceby Women in the Twelfth and Early Thirteenth
Centuries,"in On the Laws and Customs of England, ed. Morris S. Arnold et al.
(Chapel Hill, 1981), 60-89; James Holt, "Feudal Society and the Family in Early
Medieval England:The Heiress and the Alien," Transactionsof the Royal Historical
Society, 5th ser., 35 (1985): 1-28.
5. LawrenceStone and Jeanne C. FawtierStone, An Open Elite?:England 1540-
1880 (Oxford, 1984), 119-26.
6. For a discussion of the Stones' sample of landownersand the coverageof their
counties, see David and Eileen Spring,"SocialMobilityand the EnglishLandedElite,"
CanadianJournal of History 21 (1986): 340-42.
7. Stone, An OpenElite?,table 3.8.
8. Ibid., table 4.2.
9. Peter Laslett, The WorldWeHave Lost (London, 1981), 239.
10. Stone, An OpenElite?,table 4.2
11. Because the Stones do not consider what amount of female inheritancewas
unavoidable,they conclude their figuresshow generosityto females.

12. For an easily availablereprintof a Bridgmansettlement,see W. S. Holdsworth,

A History of English Law, 16 vols. (London, 1922-38), vol. 7, app. 3.
13. EileenSpring,"TheFamily,StrictSettlementand Historians,"CanadianJournal
of History 18 (1983): 379-98; also publishedin Law, Economy and Society:Essays in
theHistoryofEnglishLaw 1750-1914, ed. G. R. Rubinand David Sugarman(Abingdon,
1984), 168-91; Eileen Spring, "The Strict Settlement: Its Role in Family History,"
Economic History Review,2d ser., 41 (1988): 454-60.
14. Holt, "FeudalSociety,"3.
15. Boswell'sLife of Johnson, 2 vols. (Oxforded., London, 1904), 2: 520.
16. Holt, "FeudalSociety,"20.
17. J. Horace Round, Studies in Peerageand FamilyHistory(London, 1901), 465-
66.
18. Ibid., 466.
19. James Holt, "What'sin a Name?" (Stenton lecture of 1981, publishedby the
University of Reading 1982).
20. Dillon v. Freine (1594). Quoted from John Bakerand S. F C. Milsom, Sources
of English Legal History:PrivateLaw to 1750 (London, 1986), 156.
21. Sharingtonv. Strotton(1565). Quoted from ibid., 488.
22. G. A. Holmes, TheEstatesof the HigherNobilityin Fourteenth-Century England
(Cambridge,1957), 57.
23. J. M. W. Bean, The Decline of English Feudalism(Manchester,1968), 148.
24. K. B. McFarlane,TheEnglishNobilityin the LaterMiddleAges (Oxford,1973),
270.
25. Ibid., 62-72, 276-78.
26. Bridgman'sprecedentswere the basis on which certaincalculationswere made
in the pioneering article, which was H. J. Habakkuk,"MarriageSettlements in the
EighteenthCentury,"Transactionsof the Royal HistoricalSociety, 4th ser., 32 (1950):
15-30.
27. A Bridgman settlement is reprintedin Holdsworth,History of English Law,
vol. 7, app. 3.
28. J. P. Cooper, "Patternsof Inheritanceand Settlement by Great Landowners
from the Fifteenth to the EighteenthCenturies,"in Family and Inheritance,ed. Jack
Goody, Joan Thirsk, and E. P. Thompson (London, 1976), 199.
29. Ibid., 200.
30. Ibid., 210.
31. Ibid., 232.
32. Ibid., 206, 209.
33. Lloyd Bonfield,MarriageSettlements,1602-1740 (Cambridge,1983), 47-48.
34. Ibid., 50.
35. Ibid., 119.
36. Ibid., 122.
37. S. F C. Milsom, HistoricalFoundationsof the CommonLaw (London, 1969),
147.
38. Ibid., 146.
39. John Dalrymple,An Essay towards a GeneralHistory of Feudal Propertyin
GreatBritain, 3d ed. (London, 1758), 165-66; FrederickPollock, The Land Laws, 3d
ed. (London, 1896), 88.
40. MaryFinch, The Wealthof Five Northamptonshire Families1540-1640 (Oxford,
1956), 53, 103, 144.

41. Holmes, Estates of the HigherNobility,55; Bean, Decline of EnglishFeudalism,
126.
42. As the law held that a living man could have no heir,heirs being determinable
only at death, the remainderin tail was normallycontingentthroughoutthe life of the
tenant for life. In a certainform of settlement,the remaindercould be made vulnerable
for a lesser time. However,there was not much point in employingthe form, for the
real dangerto the settlementlay before the son was born, and vulnerabilityuntil then
could not be avoided.
43. Pollock, The Land Laws, 117.
44. Cooper,"Patternsof Inheritance,"201.
45. Eileen Spring, "The Settlement of Land in Nineteenth-CenturyEngland,"
American Journal of Legal History 8 (1964): 209-23; Lloyd Bonfield, "Marriage
Settlements and 'the Rise of Great Estates':The DemographicAspect,"Economic
History Review, 2d ser., 32 (1979): 483-93. The point made by these articles, that
settlementoften failed as entail, is undeniable.It should be noted, however,that both
articles exaggerateits failure in this respect, doing so for differentreasons. 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
freedomof action. The other makes mathematicalcalculationsbased on the belief that
a settlement was at an end if there was no son, whereascollateralheirs were in fact
reducedto life tenancies so far as possible.


Spring 1990

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Spring 1990

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American Society for Legal History

The Board of Trustees of the University of Illinois

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By the common law rules of inheritancewomen in English landed

Eileen Spring is a free-lancehistorian. She is currentlyworking on a book

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The common law rules of inheritanceby definitionform the starting

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This content downloaded from 91.229.248.187 on Wed, 18 Jun 2014 22:09:42 PM

This content downloaded from 91.229.248.187 on Wed, 18 Jun 2014 22:09:42 PM

both stress-it is the theme of their articles-that in earlyfeudaltimes

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This content downloaded from 91.229.248.187 on Wed, 18 Jun 2014 22:09:42 PM

arises of the division of propertybetween heiress and collateralmale.

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common law's definition of heiress, by which all daughtersnot just

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The scale of the movement againstthe heiress could not be appre-

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J. M. W. Bean's The Decline of English Feudalism.Landownerswere

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This content downloaded from 91.229.248.187 on Wed, 18 Jun 2014 22:09:42 PM

It is clearthat the heiresssuffereda greatdecline betweenthe system

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conceptof land descendingindefinitelyby a mode of successiondifferent

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their estates but not dying possessed of land. Throughinstructionsto

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Henry soon recognizedthat he had overreachedhimself. Four years

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Consideringreal propertylaw againsta common law rule of descent

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1. E. A. Wrigley,"FertilityStrategyfor the Individualand the Group,"in Historical

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12. For an easily availablereprintof a Bridgmansettlement,see W. S. Holdsworth,

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