3 - Patterns of marriage settlement 1601–1659: the development of the ‘life estate-entail’ mode

Summary

Developments in legal doctrine are not necessarily linear. The law regarding restraints upon alienation remained sufficiently hazy to be malleable. Moreover, the commitment of the common law judges to free alienability need not have been irreversible; after all, the period separating Scholastica's Case and Mary Portington's Case was little more than a generation. Further developments in the law would depend upon the activities of lawyers engaged in conveyancing and upon the requirements of their clients, since the settlements they drafted would be the ones which came before the courts. Their reaction to the elaboration of doctrine considered in the last chapter would therefore be crucial. Would they attempt to devise even more ingenious forms of restraint; or would they fashion settlements within the bounds accepted in the cases? The purpose of this chapter is to provide an answer to this question with the best evidence available to the legal historian: the settlements themselves.

The settlements under consideration are those executed in the first sixty years of the century which are preserved in the county archives of Kent and Northamptonshire. While recognizing the limitations of the data set, it can be relied upon to support the position that by the turn of the seventeenth century conveyancers had abandoned the perpetuity in marriage settlements and employed instead permissible contingent remainders.