Wills and Primogeniture

In the text excerpted here, John Locke (1632–1704), a leading thinker of the Enlightenment, argues for the existence of private property and for the right of family patriarchs to determine which children they wish to bequeath their property to. Although they had little impact upon the politics and social thought of his own time, Locke’s ideas about the nature of property were frequently invoked by radical British activists and politicians in the eighteenth and nineteenth centuries.

from Chapter 5: Of Property

Sect. 25. Whether we consider natural reason, which tells us, that men, being once born, have a right to their preservation, and consequently to meat and drink, and such other things as nature affords for their subsistence: or revelation, which gives us an account of those grants God made of the world to Adam, and to Noah, and his sons, it is very clear, that God, as king David says … has given the earth to the children of men; given it to mankind in common. But this being supposed, it seems to some a very great difficulty, how any one should ever come to have a property in any thing: … I shall endeavor to show, how men might come to have a property in several parts of that which God gave to mankind in common, and that without any express compact of all the commoners. …

Sect. 27. Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labor of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labor with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labor something annexed to it, that excludes the common right of other men: for this labor being the unquestionable property of the laborer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.

Sect. 28. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. No body can deny but the nourishment is his. I ask then, when did they begin to be his? when he digested? or when he eat? or when he boiled? or when he brought them home? or when he picked them up? and it is plain, if the first gathering made them not his, nothing else could. That labor put a distinction between them and common: that added something to them more than nature, the common mother of all, had done; and so they became his private right. And will any one say, he had no right to those acorns or apples, he thus appropriated, because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. …

Sect. 32. But the chief matter of property being now not the fruits of the earth, and the beasts that subsist on it, but the earth itself; as that which takes in and carries with it all the rest; I think it is plain, that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labor does, as it were, enclose it from the common. Nor will it invalidate his right, to say every body else has an equal title to it; and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when he gave the world in common to all mankind, commanded man also to labor, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth, i.e. improve it for the benefit of life, and therein lay out something upon it that was his own, his labor. He that in obedience to this command of God, subdued, tilled and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

Sect. 33. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough, and as good left; and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself: for he that leaves as much as another can make use of, does as good as take nothing at all. No body could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst: and the case of land and water, where there is enough of both, is perfectly the same.

from Chapter 6: Of Paternal Power

…Sect. 72. Though the obligation on the parents to bring up their children, and the obligation on children to honour their parents, contain all the power on the one hand, and submission on the other, which are proper to this relation, yet there is another power ordinarily in the father, whereby he has a tie on the obedience of his children; which though it be common to him with other men, yet the occasions of shewing it, almost constantly happening to fathers in their private families, and the instances of it elsewhere being rare, and less taken notice of, it passes in the world for a part of paternal jurisdiction. And this is the power men generally have to bestow their estates on those who please them best; the possession of the father being the expectation and inheritance of the children, ordinarily in certain proportions, according to the law and custom of each country; yet it is commonly in the father’s power to bestow it with a more sparing or liberal hand, according as the behaviour of this or that child hath comported with his will and humour.

Sect. 73. This is no small tie on the obedience of children: and there being always annexed to the enjoyment of land, a submission to the government of the country, of which that land is a part; it has been commonly supposed, that a father could oblige his posterity to that government, of which he himself was a subject, and that his compact held them; whereas, it being only a necessary condition annexed to the land, and the inheritance of an estate which is under that government, reaches only those who will take it on that condition, and so is no natural tie or engagement, but a voluntary submission: for every man’s children being by nature as free as himself, or any of his ancestors ever were, may, whilst they are in that freedom, choose what society they will join themselves to, what commonwealth they will put themselves under. But if they will enjoy the inheritance of their ancestors, they must take it on the same terms their ancestors had it, and submit to all the conditions annexed to such a possession. By this power indeed fathers oblige their children to obedience to themselves, even when they are past minority, and most commonly too subject them to this or that political power: but neither of these by any peculiar right of fatherhood, but by the reward they have in their hands to enforce and recompence such a compliance; and is no more power than what a French man has over an English man, who by the hopes of an estate he will leave him, will certainly have a strong tie on his obedience: and if, when it is left him, he will enjoy it, he must certainly take it upon the conditions annexed to the possession of land in that country where it lies, whether it be France or England.

In the text excerpted here, the English legal scholar and politician William Blackstone (1723–80) argues that the existence and legal protection of property is a necessity for complex societies. Blackstone’s commentaries, which outlined the English system of common law more clearly and thoroughly than any other work then in existence, quickly became a standard reference text for lawyers and had a significant impact upon British law and politics in the eighteenth and nineteenth centuries.

from Chapter 1: Of Property in General

There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few, that will themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so before him; or why the occupier of a particular field or of a jewel, when lying on his death-bed and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. …

In the beginning of the world, we are informed by holy writ, the all-bountiful creator gave to man “dominion over all the earth; and over the fish of the sea, and over the fowl of the air and over every living thing that moveth upon the earth.” This is the only true and solid foundation of man’s dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose, that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required. …

But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious, and agreeable; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the instant that he quitted possession. …

The most universal and effectual way, of abandoning property, is by the death of the occupant; when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention ought also to cease of course. For, naturally speaking, the instant man ceases to be, he ceases to have any dominion … But as, under civilized governments which are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal law of almost every nation (which is a kind of secondary law of nature) has either given the dying person a power of continuing his property, by disposing of his possessions by will; or, in case he neglects to dispose of it, or is not permitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the successor, representative or heir of the deceased.

A professor at King’s College in Aberdeen, William Ogilvie (1736–1819) was best known for his politically radical writings on social justice and land reform. The following essay, which called for a dramatic redistribution of land among England’s population, highlighted some of the flaws of the English system of inheritance, which concentrated land ownership in the hands of a small—and in Ogilvie’s view, unproductive—class of gentry. Ogilvie’s text influenced the beliefs and policies of British social activists in the late eighteenth and nineteenth centuries.

… While the cultivable lands remain locked up, as it were, under the present monopoly, any considerable increase of population, though it seems to add to the public strength, must have a pernicious influence on the relative interests of society, and the happiness of the greater number. By diminishing the wages of labor, it favours the rich, fosters their luxury, their vanity, their arrogance; while on the other hand, it deprives the poor of some share of their just reward and necessary subsistence.

It were unjust to censure the proprietors of land, however, for retaining and exercising, as they do, a right whose foundations have not been inquired into, and whose extent no one has ever yet controverted. It is the situation in which they find themselves placed that prompts their conduct; nor can they readily conceive either the injustice or the detriment which the public suffers, by permitting such rights to be exercised. On the other hand, the farmers and cultivators have no clear perception of the injustice and oppression which they suffer. They feel indeed, and they complain, but do not understand, or dare not consider steadily, from what cause their grievances take their rise. The oppressive rights of the one order, and the patient submission of the other, have grown up together insensibly from remote ages, in which the present state of human affairs could not have been foreseen.

The public good requires that every individual should be excited to employ his industry in increasing the public stock, or to exert his talents in the public service, by the certainty of a due reward. Whoever enjoys any revenue, not proportioned to such industry or exertion of his own, or of his ancestors, is a freebooter, who has found means to cheat or to rob the public, and more especially the indigent of that district in which he lives. But the hereditary revenue of a great landholder is wholly independent of his industry, and secure from every danger that does not threaten the whole State. It increases also without any effort of his, and in proportion to the industry of those who cultivate the soil. In respect of their industry, therefore, it is a taille or progressive tax of the most pernicious nature; and in respect of the landholder himself, it is a premium given to idleness, an inducement to refrain from any active useful employment, and to withhold his talents, whatever they are, from the service of his country. If the circumstances in which he finds himself placed stimulate to any exertion at all, it is that insidious vigilance by which he himself is debased, and his dependents at once corrupted and oppressed.

The Laws Respecting Women was intended to supplement Blackstone’s Commentaries on the Laws of England by discussing in greater detail the laws that have particular relevance for the lives of women. In this excerpt, the anonymous author suggests that the preference shown towards men within England’s laws concerning inheritance can be traced back to the medieval feudal system, which required landholders to be warriors.

from Book Four, Chapter One: Of Parent and Child. Of the Rights of Parents.

… Heirs presumptive are such, who if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be cut off by the birth of a son. Nay, even if the estate had descended by the death of the owner, to such brother or nephew, or daughter; in the former cases, the estate shall be divested and taken away by the birth of a posthumous child; and in the latter, it shall also be totally divested by the birth of a posthumous son. …

—Sons inherit in preference to daughters. Thus, if a man dies, leaving two sons and two daughters, his eldest son enters on the inheritance; who, if he dies without issue, is succeeded by his brother: neither of the daughters inheriting unless their second brother dies without issue, and then they jointly enter on the estate in coparcenary. The true reason of preferring the males must be deduced from feudal principles, the Roman law making no such distinction. By the genuine and original policy of the feudal constitution, no females could ever succeed to a proper feud, inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females … it only postpones them to males; for though daughters are excluded by sons, yet they succeed before any collateral relations. It appears therefore, that the eldest male in equal degree succeeds, to the exclusion of the rest, but that females inherit all alike. …

The Greeks, the Romans, the Britons, the Saxons, and originally even the feudists divided the lands equally; some among all the children at large, some among the males only. This is certainly the most obvious and natural way, and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honourary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) to make them impartible, or, (as they styled them) feuda individua [indivisible fiefs], and in consequence descendible to the eldest son alone. This example was further enforced by the inconvenience that attended the splitting of estates; namely, the division of the military services; the multitude of infant tenants incapable of performing any duty; the consequent weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments. These reasons occasioned an almost total change in the method of feudal inheritances abroad, so that the eldest male began universally to succeed to the whole of the lands in all military tenures; and in this condition the feudal constitution was established in England by William the Conqueror. …

But with regard to females, the law has ever remained uniform and fixed; they being alike incapable of performing personal service, there seemed to be no good reason for preferring the eldest. And the other principal purpose the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown, wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of the sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. … This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the first born among the males.

John Spilsbury (1739–69) was an English engraver and cartographer, best known as the inventor of the jigsaw puzzle. In this image, he depicts a courtier pleading with a lawyer to represent him in a suit to gain ownership of an estate. Prior to 1285, all titles to land in England were considered to be “fee simple.” The word “fee”—which is related to the English word “fief”—indicates that the land is inheritable property, held on the condition of service to the sovereign, while the word “simple” clarifies that the use of the land is unrestricted. The owner of a fee simple estate has absolute ownership of the land, including absolute discretion over who the land is willed to. Some estates continued to be held in fee simple after 1285, but most became held in “fee tail”—the word “tail,” which derives from the French “taille,” meaning “cut,” indicates that the property ownership is restricted.

The influential legal clause De donis conditionalibus (“Concerning Conditional Gifts”), which was codified as a part of the Statute of Westminster (1285), created the form of inheritance known as the entailment or fee tale. The clause recognizes that the inheritors of estates often defied the wishes of the donors who had bequeathed land to them. Many inheritors “alienated” their estates by transferring land to people outside of the family that the land had originally been given to. The statute prohibits this practice and makes it possible for an estate-holder to restrict the sale of their land to direct descendants and thereby ensure that the land would not be sold off and divided by future generations. If the line of the family that inherited the estate should fail to produce a male heir, then the estate would be inherited by another line of the family. The purpose of the fee tail was to strengthen aristocratic families by preserving their influence and wealth over time. Although lawyers devised means to circumvent the restrictions of fee tails in fifteenth century, De donis conditionalibus remained in force in Austen’s time.

Statutes of King Edward, Made at WESTMINSTER in his PARLIAMENT, at EASTER, In the THIRTEENTH YEAR of his Reign.

Whereas of late our Lord the King … considering that diverse of this realm were disinherited, by reason that in many Cases, where remedy should have been had there was none provided by him nor his predecessors, ordained certain statutes right necessary and profitable for his realm, whereby the people of England and Ireland, being subjects unto his power, have obtained more speedy justice in their oppressions, than they had before; and certain cases, wherein the law failed, did remain undetermined, and some remained to be enacted, that were for the reformation of the oppressions of the people: Our Lord the King in his parliament, after the feast of Easter, held the Thirteenth Year of his reign at Westminster, caused many oppressions [of the people,] and defaults of the laws, for the accomplishment of the said Statutes of Gloucester, to be rehearsed, and thereupon did provide certain acts, as shall appear here following.

I: Several Sorts of Gifts of Lands upon Condition; In such Gifts the Donor’s Will shall be observed. Writs of Formedon in Descender. A Fine shall not bar the Heir in Tail.

FIRST, Concerning lands that many times are given upon condition, that is to wit, where any giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without [heirs] of their bodies between them begotten, the land so given shall revert to the giver or his heir: In case also where one giveth lands in free marriage, which gift hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the husband and wife die without heir of their bodies begotten, the land so given shall revert to the giver or his heir: In case also where one giveth land to another, and the heirs of his body issuing; it seemed very hard, and yet seemeth to the givers and their heirs, that their will being expressed in the gift, was not heretofore, nor yet is observed: in all the cases aforesaid, after issue [children] begotten and born between them, to whom the lands were given under such condition, heretofore such feoffees [people to whom an estate has been granted] had power to [alienate] the land so given [to transfer the estate to another individual or family], and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift: And further, when the issue of such feoffee is failing, the land so given ought to return to the giver, or his heir, by form of the gift expressed in the deed, though the issue, if any were, had died: Yet by the deed and feoffment [granting of land] of them, to whom land was so given upon condition, the donors have heretofore been barred of their reversion, which was directly repugnant to the form of the gift.

Wherefore our Lord the King, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained, that the will of the giver, according to the form in the deed of gift manifestly expressed, shall be from henceforth observed; so that they to whom the land was given under such condition, shall have no power to [alienate] the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or [shall revert] unto the giver or his heirs, if issue fail [whereas] there is no issue at all, or if any issue be, [and fail by death, or heir of the body of such issue failing.] Neither shall the second husband of any such woman, from henceforth, have any thing in the land so given upon condition, after the death of his wife, by the law of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land was so given, it shall [come to their issue, or return unto] the giver, or his heir, as before is said. …

And it is to wit that this statute shall hold place touching alienation of land contrary to the form of the gift hereafter to be made, and shall not extend to gifts made before. And if a fine be levied hereafter upon such lands, it shall be void in the law; neither shall the heirs, or such as the reversion belongeth unto though they be of full age, within England, and out of prison, need to make their claim.

In this excerpt, the Scottish philosopher and economist Adam Smith (1723–90) argues that it was inevitable for a society that favored primogeniture to restrict what could be done with an inherited estate.

from Chapter 2: Of the Discouragement of Agriculture in the Ancient State of Europe, After the Fall of the Roman Empire

Entails are the natural consequences of the law of primogeniture. They were introduced to preserve a certain lineal succession of which the law of primogeniture first gave the idea, and to hinder any part of the original estate from being carried out of the proposed line either by gift, devise or alienation; either by the folly, or by the misfortune of any of its successive owners. …

When great landed estates were a sort of principalities, entails might not be unreasonable. Like what are called the fundamental laws of some monarchies, they might frequently hinder the security of thousands from being endangered by the caprice or extravagance of one man. But in the present state of Europe, when small as well as great estates derive their security from the laws of their country, nothing can be more completely absurd. They are founded upon the most absurd of all suppositions, the supposition that every successive generation of men have not an equal right to the earth, and to all that it possesses; but that the property of the present generation should be restrained and regulated according to the fancy of those who died, perhaps five hundred years ago. Entails, however, are still respected, through the greater part of Europe, in those countries, particularly, in which noble birth is a necessary qualification for the enjoyment either of civil or military honours. Entails are thought necessary for maintaining this exclusive privilege of the nobility to the great offices and honours of their country; and that order having usurped one unjust advantage over the rest of their fellow-citizens, lest their poverty should render it ridiculous, it is thought reasonable that they should have another.

George Cruikshank (1792–1878) was an English illustrator and satirical artist. In this image, provided for Laurence Sterne’s The Life and Opinions of Tristram Shandy, Gentleman, Cruikshank shows Trim, the servant of Tristram’s Uncle Toby, just after he has made boots that belonged to Tristram’s great-great-grandfather into model mortars (weapons similar to cannons) for a battle re-enactment.

In this excerpt, the Irish-born English author Laurence Sterne (1713–68) describes the servant Trim inadvertently damaging boots that had been bequeathed to Tristram’s father as part of an entailment. This incident illustrates some of the absurdities that result from fee tails, which limit what generations of people can do with their own property.

from Book III

—May it please your honour, cried Trim, they are two mortar-pieces for a siege next summer, which I have been making out of a pair of jack-boots, which Obadiah told me your honour had left off wearing.—By Heaven! cried my father, springing out of his chair, as he swore—I have not one appointment belonging to me, which I set so much store by as I do by these jack-boots—they were our great grandfather’s, brother Toby—they were hereditary. Then I fear, quoth my uncle Toby, Trim has cut off the entail.—I have only cut off the tops, an’ please your honour, cried Trim. I hate perpetuities as much as any man alive, cried my father—but these jack-boots, continued he (smiling, though very angry at the same time) have been in the family, brother, ever since the civil wars;—Sir Roger Shandy wore them at the battle of Marston-Moor.—I declare I would not have taken ten pounds for them.—I’ll pay you the money, brother Shandy, quoth my uncle Toby, looking at the two mortars with infinite pleasure, and putting his hand into his breeches pocket as he viewed them—I’ll pay you the ten pounds this moment with all my heart and soul.—

In this excerpt, the English writer Mary Astell (1668–1731) considers situations in which women are married solely for the money that their suitors expect to inherit. She suggests that it is unwise for a person to marry solely for money or solely for love, but argues that women can find satisfaction even in an unhappy or exploitative marriage by cultivating their virtue and religious piety. Some Reflections Upon Marriage was published anonymously after the death of Hortense Mancini, the Duchess of Mazarin, a French aristocrat who was famous for her short-lived marriage to the wealthy but abusive aristocrat Armand Charles de La Porte de La Meilleraye.

For pray, what do Men propose to themselves in Marriage? What Qualifications do they look after in a Spouse? What will she bring is the first enquiry? How many Acres? Or how much ready Coin? Not that this is altogether an unnecessary Question, for Marriage without a Competency, that is, not only a bare Subsistence, but even a handsome and plentiful Provision, according to the Quality and Circumstances of the Parties, is no very comfortable Condition. They who Marry for Love as they call it, find time enough to repent their rash Folly, and are not long in being convinced, that whatever fine Speeches might be made in the heat of Passion, there could be no real Kindness between those who can agree to make each other miserable. But as an Estate is to be considered, so it should not be the Main, much less the Only consideration, for Happiness does not depend on Wealth, that may be wanting, and too often is, where this abounds. He who Marries himself to a Fortune only, must expect no other satisfaction than that can bring him, but let him not say that Marriage but that his own Covetous or Prodigal Temper, has made him unhappy. …

Few Men have so much Goodness as to bring themselves to a liking of what they loathed, merely because it is their Duty to like; on the contrary, when they Marry with an indifferency, to please their Friends or increase their Fortune, the indifferency proceeds to an aversion, and perhaps even the kindness and complaisance of the poor abused Wife shall only serve to increase it. What follows then? There is no content at home, so it is sought elsewhere, and the Fortune so unjustly got, is as carelessly squandered. The Man takes a loose, what should hinder him? He has all in his hands, and Custom has almost taken off that small Restraint Reputation used to lay. The Wife finds too late what was the Idol the Man adored, which her Vanity perhaps, or it may be the Commands and Importunities of Relations, would not let her see before; and now he has got that into his possession, she must make court to him for a little sorry Alimony out of her own Estate. If Discretion and Piety prevails upon her Passions she sits down quietly, contented with her lot, seeks no Consolation in the Multitude of Adorers, since he whom only she desired to please, because it was her duty to do so, will take no delight in her Wit or Beauty: She follows no Diversion to allay her Grief, uses no Cordials to support her Spirit, that may sully her Virtue or bring a Cloud upon her Reputation, she makes no appeals to the mis-judging Crowd, hardly mentions her Misfortunes to her most intimate Acquaintance, nor lays a load on her Husband to ease herself, but would if it were possible conceal his Crimes, though her Prudence and Virtue give him a thousand Reproaches without her Intention or knowledge; and retiring from the World, she seeks a more solid Comfort than that can give her, taking care to do nothing that Censoriousness or even Malice itself can misconstrue to her prejudice. Now she puts on all her Reserves, and thinks even Innocent Liberties scarce allowable in her Disconsolate State; she has other Business to mind: Nor does she in her Retirements reflect so much upon the hand that administers this bitter Cup, as consider what is the best use she can make of it. And thus indeed Marriage, however unfortunate in other respects, becomes a very great Blessing to her. She might have been exposed to all the Temptations of a plentiful Fortune, have given up herself to Sloth and Luxury, and gone on at the common rate, even of the better sort, in doing no hurt, and as little good: But now her kind Husband obliges her to Consider, and gives opportunity to exercise her Virtue.

In this excerpt from a classified newspaper article, the English writer Jane Gomeldon (1720–79) defends herself against her husband’s accusation that she had left him for another man. Gomeldon explains that she fled her household because of her husband’s abusive behavior, and that he was attempting to gain control of her inheritance. Gomeldon’s article reveals that even in situations where women were bequeathed an estate, men would often attempt to surreptitiously disinherit them.

Whereas it was advertised in the Newcastle Journal … by Francis Gomeldon that a certain Lady, by the instigation of evil advisers was about eleven weeks ago seduced to leave her husband, and then absented from him: And twas offered that if she would return home she should be received with the uttermost tenderness and affection, or, on notice where to wait on her, he would do it with pleasure; otherwise, publication of her name, prosecutions and punishments of her seducers were threatened. In justification of myself, who was meant by that advertisement, I did in the Newcastle Courant … answer that I left him without any seducer or adviser whatever, and lived in the utmost Love … with him from our marriage, until his behavior and actions rendered both my fortune and life precarious; and for the preservation of them, and no other cause, I departed from him. That if I had been used either with tenderness or affection, I would not have left him, and could not believe from his behavior since that I should be used with either, otherwise than in pretence or appearance, if I should return, or that his coming to me would be for my good. That he had begun one prosecution for the recovery of my person, and another in my name, against my consent, and without my privity, concerning my fortune, which I had just reasons to believe he desired more than my person. That he was excluded from the last by the will of my mother, who vested it in trustees for my sole and separate maintenance, to be protected against him. That I concealed his usage from all, and when I found it dangerous any longer to endure, departed without acquainting any person with my designs. …

And as he denies he hath commenced any other suit concerning me than one out of his affection, concerning my person, it is a further instance why I cannot regard his promises, for a monition was not only sued out in my name, as his wife, but he delivered it to George Hall, Curate of All-Saints, of this town, to publish, and it was published accordingly, soon after my leaving him, in that church, for all the next of kindred of my mother to show cause why administration of her personal estate should not be committed to me. … This was a contrivance to get possession of my fortune, which I have prevented, and will do the utmost in my power to preserve it, and defend my person against his suit of pretended affection.

Sir Edward Coke (1552–1634) was an English judge and politician, who was well known for writing an influential commentary upon the legal decisions of the fifteenth century English judge and legal scholar Thomas Littleton. In this excerpt, he explains Littleton’s reasoning in the highly influential legal case known as Taltarum’s Case. Decided in 1472, Taltarum’s Case popularized the strategy for circumventing the restrictions of an entailment known as “common recovery.” Coke describes how the process of common recovery was permitted under the terms of De donis conditionalibus, the legal clause that introduced the fee tail. By taking advantage of loopholes in the law, the common recovery was consistently successful at transforming fee tail estates—which imposed significant restrictions upon what an estate holder could do with the land they inherited—into fee simple estates, which had no restrictions. Common recoveries were thus one of the most frequently used methods for barring entailments and enabling estate holders to bequeath their estates to whomever they wished in whatever manner they wished.

… [I]f a gift in tail be made upon condition, that the donee etc. shall not [alienate the estate], this condition is good to some intents and void to some; for, as to all those alienations which amount to a discontinuance of the estate tail (as Littleton here speaks), or is against the statute of Westminster [1285], the condition is good without question. But as to a common recovery the condition is void, because this is no discontinuance, but a bar, and this common recovery is not restrained by the said statute of [Westminster 1285]. …

… If a man before the statute de donis conditionalibus had made a gift to a man and to the heirs of his body upon condition that after issue he should not have power to sell, this condition would have been repugnant and void. Pari ratione [for the like reason], if after the statute a man makes a gift in tail, the law gives the donee power to suffer a common recovery; therefore to add a condition that he shall have no power to suffer a common recovery is repugnant and void.

In this significant legal case, the plaintiff, Mary Portington, charged the defendants, Robert Rogers and Thomas Barley, with violating a clause in her father’s will that was intended to prevent his heirs from using common recovery to circumvent the conditions of entailment. The court ruled that such a clause was invalid and established that, in the eyes of the law, fee tails were inherently dissolvable. The ruling in Mary Portington’s Case made it clear that estate-holders should never expect an entailment to go unchallenged. By the middle of the seventeenth century it was commonly recognized that entailments were no longer able to guarantee that estates would remain in the hands of a particular family from generation to generation.

… [T]hese perpetuities [entailments] were born under some unfortunate constellation; for … in all the courts in Westminster, they never had any judgment given for them, but many judgments given against them[.] … All which cases I have reported, and in all which judgment were given against the perpetuity; and from these fettered inheritances the freeholds of the subject are thereby set at liberty, according to their original freedom.

The text excerpted here, composed by the English politician and judge Orlando Bridgman (1606–74), is one clause of a strict settlement, a legal device for governing the inheritance of an estate that was formalized by Bridgman in the 1660s. This particular strict settlement—which was drafted for an aristocrat referred to as “J.E.”—indicates that the estate should pass first to the estate-holder’s male children, but that daughters should receive an inheritance if there are no sons. After a common recovery was performed to remove an entail on an estate, estate holders would often draw up a strict settlement, which usually made some provision for all their family members, including their widow, younger sons, and daughters (though such settlements tended to place the bulk of the estate in the hands of a male heir, often even when the estate-holder had no sons). In Austen’s day, a strict settlement was used to dictate the terms of inheritance for most major estates.

If the “entailment” that was responsible for so much of the anxiety suffered by the Bennet family in Pride and Prejudice was indeed an entailment, it could with relative ease have been barred by a common recovery, which would have freed Mr. Bennet to draft a strict settlement that supported his daughters. Scholars such as Eileen Spring, however, have argued that during Austen’s time the word “entail” might, in common usage, refer to the demands associated with a strict settlement, and that it is most plausible to assume that the inheritance of the Bennet estate was already governed by such a settlement specifying that the property could only be bequeathed to males.

[The estate shall pass] [t]o the use of the said J.E. and the heirs males of his body lawfully issuing: and for the default of such issue, to the use of the said W.E. and his right heirs for ever. … [I]n case the said W.E. shall happen to depart this life leaving no issue male of him begotten … or if the issue male … shall happen to die without issue male of their bodies lawfully issuing before they shall attain their several ages of one and twenty years or be married; and that there shall be one or more daughter or daughters of the body of the said W.E. … then such daughter and daughters respectively shall have the portion and portions, sum and sums of money herein after limited and appointed … the said portion and portions to be respectively payable and paid to the said daughter and daughters at her or their several and respective age or ages of eighteen years, or day or days of marriage, which shall first and next happen, provided the said daughter or daughters marry with the consent and good liking of the said W.E. if he shall be then living.

In this excerpt from the biography of the English writer and literary critic Samuel Johnson (1709–84), the English author James Boswell (1740–95) describes Johnson’s reaction to learning of the death of his friend Henry Thrale’s only son. Johnson’s remarks attest to the attitude of many members of the gentry during the Georgian period to the prospect of being survived only by daughters. It was fairly common for the largest portion of an estate to be inherited by a nephew or other relatively close male relation in preference to a daughter of the estate-holder; if a daughter did inherit the property, her marriage would link the estate to a different family name.

… While we sat at breakfast, Dr. Johnson received a letter by the post, which seemed to agitate him very much. When he had read it, he exclaimed, “One of the most dreadful things that has happened in my time.” The phrase my time, like the word age, is usually understood to refer to an event of a publick or general nature. I imagined something like an assassination of the King—like a gunpowder plot carried into execution—or like another fire of London. When asked, “What is it, Sir?” he answered, “Mr. Thrale has lost his only son!” This was, no doubt, a very great affliction to Mr. and Mrs. Thrale, which their friends would consider accordingly; but from the manner in which the intelligence of it was communicated by Johnson, it appeared for the moment to be comparatively small. I, however, soon felt a sincere concern, and was curious to observe, how Dr. Johnson would be affected. He said, “This is a total extinction to their family, as much as if they were sold into captivity.” Upon my mentioning that Mr. Thrale had daughters, who might inherit his wealth;—“Daughters, (said Johnson, warmly,) he’ll no more value his daughters than—” I was going to speak.—“Sir, (said he,) don’t you know how you yourself think? Sir, he wishes to propagate his name.” In short, I saw male succession strong in his mind, even where there was no name, no family of any long standing.

In this excerpt from her diary, writer and socialite Hester Thrale (1741–1821)—the wife of brewer Henry Thrale and friend of writer Samuel Johnson—reflects upon the prospect of her daughter Cecilia marrying a banker. In this passage, Thrale notes that the marriage would probably be unprofitable for Cecilia, and, in the process, sheds light on what women could usually expect to inherit from estates governed by strict settlements, which were often used not only to provide financially for female heirs but also to ensure that they would not inherit physical property they might otherwise have been in line to receive. At the time of her marriage, Cecilia would receive a substantial “portion” from her family’s estate—a lump sum of money that was generally granted to daughters and younger sons on their twenty-first birthday or on the occasion of their wedding. The “jointure”—the allotment of money set aside for a wife in case her husband dies before her—that she would receive from the estate of her husband’s family was likely to be much smaller than her portion.

James Drummond a Cadet of the great banking house courts our Cecilia I see—Well! There’s no great harm in that to be sure; he expects to rise and be one of the partners: a proper ambition for a young clerk—and Thrale the brewer’s daughter wedded to Drummond the banker’s son, carries with it a sound of equality less offensive than pleasing—Yet my duty teaches to give no encouragement where a large sum of money must be sunk I suppose to purchase an imaginary jointure: Cecilia would take to the house we’ll say 40 or 50,000 and what certainty can they give her of a competent—I mean adequate annuity after his death should she survive him.

In this excerpt, the influential English-born American political philosopher Thomas Paine (1737–1806) condemns the social and ethical consequences of primogeniture inheritance, suggesting that it produces a political class that defies the dictates of nature.

The nature and character of aristocracy shows itself to us in this law [of primogeniture]. It is a law against every law of nature, and nature herself calls for its destruction. Establish family justice and aristocracy falls. By the aristocratical law of primogenitureship, in a family of six children, five are exposed—Aristocracy has never but one child. The rest are begotten to be devoured. They are thrown to the cannibal for prey, and the natural parent prepares the unnatural repast. …

With what kind of parental reflections can the father or mother contemplate their younger offspring? By nature they are children, and by marriage they are heirs; but by aristocracy they are bastards and orphans. They are flesh and blood of their parents in one line, and nothing akin to them in the other. To restore, then, parents to their children, and children to their parents—relations to each other, and man to society—and to exterminate the monster, aristocracy, root and branch, the French Constitution has destroyed the law of Primogenitureship.

… [T]here is an unusual unfitness in an aristocracy to be legislators for a nation. Their ideas of distributive justice are corrupted at the very source. They begin life by trampling on all their younger brothers and sisters, and relations of every kind, and are taught and educated to do so. With what ideas of justice or honour can that man enter a house of legislation, who absorbs in his own person the inheritance of a whole family of children, or doles out to them some pitiful portion with the insolence of a gift?

A Vindication of the Rights of Woman, a foundational text in feminist thought, is presented as a rebuttal to French philosopher Jean-Jacques Rousseau’s claim that women should be educated to be the companions of men, and to French politician Charles Maurice de Talleyrand-Périgord’s claim that women should not be prepared to engage in public life. The Vindication’s author, the English writer, philosopher, and political and social critic Mary Wollstonecraft (1759–97), argues that society in general and women in particular will benefit greatly if women’s inborn capacities for reason are cultivated through education. In this excerpt, she suggests that the injustices inflicted upon women by England’s discriminatory laws concerning inheritance were exacerbated by the way in which women were typically educated.

… Girls, who have been thus weakly educated, are often cruelly left by their parents without any provision; and, of course, are dependent on, not only the reason, but the bounty of their brothers. These brothers are, to view the fairest side of the question, good sort of men, and give as a favour, what children of the same parents had an equal right to. In this equivocal humiliating situation, a docile female may remain some time, with a tolerable degree of comfort. But, when the brother marries, a probable circumstance, from being considered as the mistress of the family, she is viewed with averted looks as an intruder, an unnecessary burden on the benevolence of the master of the house, and his new partner.

Who can recount the misery, which many unfortunate beings, whose minds and bodies are equally weak, suffer in such situations—unable to work and ashamed to beg? The wife, a cold-hearted, narrow-minded woman, and this is not an unfair supposition; for the present mode of education does not tend to enlarge the heart any more than the understanding, is jealous of the little kindness which her husband shows to his relations; and her sensibility not rising to humanity, she is displeased at seeing the property of HER children lavished on an helpless sister.

These are matters of fact, which have come under my eye again and again. The consequence is obvious, the wife has recourse to cunning to undermine the habitual affection, which she is afraid openly to oppose; and neither tears nor caresses are spared till the spy is worked out of her home, and thrown on the world, unprepared for its difficulties; or sent, as a great effort of generosity, or from some regard to propriety, with a small stipend, and an uncultivated mind into joyless solitude.

These two women may be much upon a par, with respect to reason and humanity; and changing situations, might have acted just the same selfish part; but had they been differently educated, the case would also have been very different. The wife would not have had that sensibility, of which self is the centre, and reason might have taught her not to expect, and not even to be flattered by the affection of her husband, if it led him to violate prior duties. She would wish not to love him, merely because he loved her, but on account of his virtues; and the sister might have been able to struggle for herself, instead of eating the bitter bread of dependence.

I am, indeed, persuaded that the heart, as well as the understanding, is opened by cultivation; and by, which may not appear so clear, strengthening the organs; I am not now talking of momentary flashes of sensibility, but of affections. And, perhaps, in the education of both sexes, the most difficult task is so to adjust instruction as not to narrow the understanding, whilst the heart is warmed by the generous juices of spring, just raised by the electric fermentation of the season; nor to dry up the feelings by employing the mind in investigations remote from life.

In this excerpt, the English philosopher and politician Edmund Burke (1729–97)—a staunch advocate for conservatism and critic of the French Revolution—argues that inheritance is an essential element of the ethos and politics of England. Believing that the French revolutionaries had made a dangerous break with the traditions of the past, Burke argues that societies ought not to discard the political institutions and cultural norms bequeathed to them by their predecessors.

You will observe that from Magna Charta to the Declaration of Right it has been the uniform policy of our constitution to claim and assert our liberties as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity—as an estate specially belonging to the people of this kingdom, without any reference whatever to any other more general or prior right. By this means our constitution preserves a unity in so great a diversity of its parts. We have an inheritable crown, an inheritable peerage, and a House of Commons and a people inheriting privileges, franchises, and liberties from a long line of ancestors.

This policy appears to me to be the result of profound reflection, or rather the happy effect of following nature, which is wisdom without reflection, and above it. A spirit of innovation is generally the result of a selfish temper and confined views. People will not look forward to posterity, who never look backward to their ancestors. Besides, the people of England well know that the idea of inheritance furnishes a sure principle of conservation and a sure principle of transmission, without at all excluding a principle of improvement. It leaves acquisition free, but it secures what it acquires. Whatever advantages are obtained by a state proceeding on these maxims are locked fast as in a sort of family settlement, grasped as in a kind of mortmain forever. By a constitutional policy, working after the pattern of nature, we receive, we hold, we transmit our government and our privileges in the same manner in which we enjoy and transmit our property and our lives. The institutions of policy, the goods of fortune, the gifts of providence are handed down to us, and from us, in the same course and order. Our political system is placed in a just correspondence and symmetry with the order of the world and with the mode of existence decreed to a permanent body composed of transitory parts, wherein, by the disposition of a stupendous wisdom, molding together the great mysterious incorporation of the human race, the whole, at one time, is never old or middle-aged or young, but, in a condition of unchangeable constancy, moves on through the varied tenor of perpetual decay, fall, renovation, and progression. Thus, by preserving the method of nature in the conduct of the state, in what we improve we are never wholly new; in what we retain we are never wholly obsolete.

In this excerpt, the Irish philosophers and social activists Anna Wheeler (c. 1780–1848) and William Thompson (1775–1833) argue that both public opinion and the law—including laws concerning inheritance—must change in order for women to be liberated from the deplorable conditions that they have been condemned to. Wheeler (who was not credited on the book’s title page, but whose contribution of key passages is acknowledged in its introduction) had personal insight into this particular issue, as she was disinherited after her husband’s death.

Civil and criminal laws are formed by the state of public opinion. … These laws, once established, powerfully react on public opinion. When in accordance with each other, these two, laws and public opinion, form a force, partly moral, partly physical, which, when ill-directed, produce as much human misery, as when well-directed they produce good. In the case of women, they are both of them unequal, unjust and cruel, productive of vice and misery incalculable to both men and women. Now suppose that one of these powers began to be relaxed in its self-consuming malignity; suppose, as naturally occurs, that public opinion first begins to relent, to reconsider its judgments, and to suspect that in tormenting others it has wantonly deprived them of great sources of happiness. …

… All the well-disposed part of the public yielding to, or participating in, the force of this improved public opinion, would act towards women, as far as lay in their power, as if no … exclusive or partial laws existed. … Just fathers might leave their property equally between their children, son and daughters, and might endeavor to give an equally enlarged education to each. Just husbands might yield the same power of judging and acting to their wives, the same freedom in every respect, the same command over their own property (the fortune they possessed at marriage) and the annual consumable revenue, from whatever source derived that they themselves enjoyed. …With what bitterness of apprehension must all these permissions of equality, these licenses to be happy, be received by women! Permissions from equals, where no power of permission ought to exist! permissions to be moral and beneficent, and to reap the fruits of beneficence and morality! The elevated soul sickens at such permissions; the mind of an elevated man would sicken at the humiliation of having to grant to a friend and an equal such permissions.

But this is not all. It is but a very small part of the exclusions or unequal laws affecting women, which depend on the cooperation of men, well- or ill-disposed, for their execution. In all these cases public opinion, even the most enlightened, would be of no use to women without the repeal of such exclusive or partial laws. Such are the laws affecting intestate property, particularly of land, preferring male heirs. …

… As long as these positive exclusions and monopolies of barbaric ignorance and jealousy remain, so long will enlightened public opinion and private beneficence be impotent in endeavouring to raise women in the eyes of men to that respect which equals alone can claim and receive from equals.

In this excerpt from the biography of the English writer and literary critic Samuel Johnson (1709–84), the English author James Boswell (1740–95) describes a conversation Boswell had with his father concerning the organization of the family estate. Boswell’s position—that the estate should be bequeathed only to male descendants, even if this necessitated leaving it to distant relations—was quite conservative for his time.

…[M]y father who was one of the judges of Scotland, and had added considerably to the estate, now signified his inclination to take the privilege allowed by our law to secure it to his family in perpetuity by an entail, which, on account of his marriage articles, could not be done without my consent.

In the plan of entailing the estate, I heartily concurred with him, though I was the first to be restrained by it; but we unhappily differed as to the series of heirs which should be established[.] … My father had declared a predilection for heirs-general, that is, males and females indiscriminately. He was willing, however, that all males descending from his grandfather should be preferred to females; but would not extend that privilege to males deriving their descent from a higher source. I, on the other hand, had a zealous partiality for heirs-male, however remote, which I maintained by arguments, which appeared to me to have considerable weight. And in the particular case of our family, I apprehended that we were under an implied obligation, in honour and good faith, to transmit the estate by the same tenure which he held it, which was as heirs-males, excluding nearer females. I therefore, as I thought conscientiously, objected to my father’s scheme.