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Marriage Settlements in the Eighteenth Century

Published online by Cambridge University Press:  12 February 2009

H. J. Habakkuk
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Extract

In the early eighteenth century, the arrangements by which the English aristocracy and gentry commonly provided for their families conformed to a standard pattern, the strict settlement, in which the essential questions were settled at the marriage of the eldest son. Not only was his immediate maintenance fixed and his wife's jointure, but the provision for the children of the marriage—how much they were to receive, in what form and when—was decided at the same time. In its essentials, the marriage settlement first secured that the family estate should in each generation descend to the eldest son. It did this by limiting the interest in the estate of the father of the husband and, after him, of the husband himself, to that of a life-tenant, and entailing the estate on the eldest son to be born of the marriage. Secondly, the marriage settlement empowered both the father and husband to raise jointures for their respective wives and portions, i.e. capital sums, for their daughters and younger sons when they married or came of age; sometimes rent charges were provided for younger sons.

Type
Research Article
Information
Transactions of the Royal Historical Society , Volume 32 , December 1950 , pp. 15 - 30
Copyright
Copyright © Royal Historical Society 1950

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References

page 15 note 1 A life-tenant was entitled only to the income of his estate for his life, and could not sell or mortgage it for a longer period; a tenant in tail at this period was in a much stronger position, since he could, without difficulty, break the entail and thus acquire a fee-simple. See G. C. Cheshire, The Modern Law of Real Property (5th edn.), pp. 343–429. The simplest account of the strict settlement is Sir Frederick Pollock, The Land Laws (3rd edn.), pp. 110–20.

page 16 note 1 The earliest example I know of, in print, of this form of settlement is dated 1556 (Joshua Williams, ‘On the Origin of the Present Mode of Family Settlements of Landed Property’, Transactions of the Juridical Society, 1855, appendix B). Earlier examples axe occasionally met among family deeds.

page 16 note 2 That it was this risk that deterred landowners from adopting the stricter forms of settlement is shown by the fact that, where the settlement was delayed until after a son had been born to the marriage, these forms were in fact employed. For examples see R. E. C. Chester, Genealogical Memoirs of the extinct Family of Chester of Chicheley (1878), i. 116; and Gervase Holles, Memorials of the Holles Family, ed. A. C. Wood, p. 119.

page 17 note 1 W. S. Holdsworth, A History of English Law (1st edn.), vii. 112–13. The eighteenth-century tradition on the origin of this device is contained in William Blackstone, Commentaries on the Laws of England (4th edn., Oxford, 1770), ii. 172. See also Hardwicke's judgement in Garth v. Cotton (1753), E[nglish] R[eports] 21 Ch. 242.

page 18 note 1 This device was used in a settlement which, from internal evidence, can be dated 1655 (Orlando Bridgeman, C.J., Conveyances: being select Precedents of Deeds and Instruments concerning the most considerable estates in England, 2nd edn., 1689, p. 210). The earliest example I have found is dated 1647 (Green v. Rooke (1679–80), E.R. 21 Ch. 648).

page 18 note 2 Sir John Dalrymple, Considerations upon the Policy of Entails in Great Britain (Edinburgh, 1764); pp. 57, 85. See, by the same author, An Essay towards a general History of Feudal Property in Great Britain, 2nd edn. (1758).

page 19 note 1 For some royalists the real cost of the Civil Wars was poor marriages for their daughters. See, for example, the marriages of the Verney family (F. P. and M. M. Verney, Memoirs of the Verney Family during the Seventeenth Century, i, chap, xxvii).

page 19 note 2 Thomas Wilson, The State of England Anno Dom. 1660, ed. F. J. Fisher (Camden Miscellany, vol. xvi), p. 24. See also Autobiography of Edward Lord Herbert of Cherbury, ed. Sir Sidney Lee, p. 43.

page 20 note 1 Earl of Buckinghamshire v. Drury (1762), in Notes of Opinions and Judgements by Sir John Eardley Wilmot, p. 208.

page 20 note 2 Blackstone, Commentaries, ii. 172.

page 21 note 1 This proportion was often specified in settlements. For examples see the settlement on marriage of Daniel Finch, second earl of Nottingham, in 1685 (10 Geo. II, Private Act, c. 14) and Evelyn v. Evelyn (1731), E.R. 22 Ch. 543.

page 21 note 2 Bridgeman, op. cit., pp. 196, 233, 80. Two of these settlements can be identified from internal evidence. The second concerns the marriage of Sir Richard Graham to Elizabeth Fortescue in or before 1660 (Complete Baronetage, ed. G. E. C., iii. 263; Complete Peerage, ed. Vicary Gibbs, x. 686). The third concerns the marriage, not long before 1653, of Henry earl of Winchelsea to the daughter of the duke of Somerset (Complete Peerage, ed. G. E. C, viii. 178).

page 21 note 3 Verney Memoirs, i. 55; Farmer v. Compton (1626), E.R. 21 Ch. 490.

page 21 note 4 William West, Symbolaeography, 3rd edn., 1594, section 82.

page 22 note 1 The commonest breach of this convention was the use of the portion to discharge the debts of the husband's family. See Historical MSS. Commission, Portland MSS., ii. 169–70.

page 22 note 2 The relation between the rate of interest and the price of land was debated in the later seventeenth-century controversies about reducing the legal maximum rate of interest. The advocates of reduction argued that it would increase the price of land, and that earlier reductions had had this effect (e.g., J[osiah] C[hild], Brief Observations concerning Trade and Interest of Money (1668), pp. 8–10). Opponents asserted that no such increase had, in fact, taken place (e.g., The Observations of J. C. briefly examined (1668), p. 32). Locke stated categorically that ‘the years’ purchase of land does not increase with the fall of interest’ (John Locke, Some Considerations of the Lowering of Interest and Raising the Value of Money, in his Collected Works (10th edn., 1801), v. 52). Though his explanation is curious, Locke was right on the point of historical fact. The price of land, though it varied according to situation, remained about twenty times its annual value despite the considerable fall in the rate of interest. Mr. Brynmor Pugh has drawn my attention to Thorold Rogers’ suggestion that this was the normal valuation of land in the fifteenth century (J. E. Thorold Rogers, History of Agriculture and Prices in England, iv, p. 100; Six Centuries of Work and Wages, p. 288). It is certainly the valuation at which the monastic lands were sold. It is also the valuation implied by the relative rates of taxation in the Tudor subsidy on income from land, and on the capital of persons rated on their moveables; and in the Commonwealth assessments. It is also implied in instructions about the rating for the poor rate in the early seventeenth century (Michael Dalton, Country Justice, 1635, p. 136). That this valuation corresponded to the facts and was not an arbitrary bureaucratic assumption may be confirmed from any collection of family deeds or from contemporary writings. To take a single example: Chancery, in 1631, recognized a bequest of land worth £52 a year as proper discharge of a man's promise to leave his wife £1,000 on his death (Peacock v. Glascock (1630–1), E.R. 23 Ch. 503). See also The Autobiography of Sir Simon D'Ewes, ed. J. O. Halliwell, i. 180, and A Treatise of Taxes and Contributions, in The Economic Writings of Sir William Petty, ed. C. H. Hull (Cambridge, 1899), i. 45–7. Valuation at twenty years' purchase was still the rule in the early eighteenth century (Giles Jacob, The Country Gentleman's Vade Mecum (1717), p. 47). After that, there was closer correspondence between the movements of the rate of interest and the return on the purchase of land.

page 23 note 1 Sir William Temple, An Essay on Popular Discontents. Miscellanea. The Third Part (1750), p. 269.

page 23 note 2 Sir Josiah Child is reliably reported to have given one of his daughters a portion of £25,000, substantially larger than the portions common among the landed aristocracy (Narcissus Luttrell, A Brief Historical Relation (Oxford, 1857), i. 192).

page 24 note 1 There is considerable contemporary comment on the increasing number of bachelors. ‘I believe there are more bachelors now in England by many thousands than there were a few years ago; and probably also the numbers of them (and of single women, of course) will every year increase’ (Richardson, Sir Charles Grandison, ii. Letter II). See R. P. Utter and G. B. Needham, Pamela's Daughters, pp. 214–58. I owe these references to Mr. I. P. Watt.

page 24 note 2 For the situation in France see Mathorez, J., Les étrangers en France sous l'ancien régime (Paris, 1919–21), i. 43–53.Google Scholar

page 25 note 1 Temple, op. cit., p. 268.

page 25 note 2 Hardwicke, L.C.'s judgment in Earl of Buckinghamshire v. Drury (1762), in Eardley Wilmot, op. cit., p. 221.

page 26 note 1 Holdsworth, History of English Law (3rd edn.), iii. 196–7; vi. 645–6. The statute law governing jointures at this period is contained in 11 Hen. VII. c. 20, and 27 Hen. VIII. c. 10. The case law is conveniently summarized in Wilmot's judgment in Earl of Buckinghamshire v. Drury (Eardley Wilmot, op. cit., pp. 184–226).

page 26 note 2 See, e.g., the jointure fixed by 29 G. II. Private Act, c. 29, and Brookes, C. C., A History of Steeple Aston and Middle Aston, Oxfordshire (Shipston on Stow, 1929), chap. xvi.Google Scholar

page 27 note 1 Earl of Feversham v. Watson (1677), E.R. 22 Ch. 178, 1042; E.R. 23 Ch. 242. All Duras's matrimonial ventures are informative; see Reresby, Sir John Memoirs, ed. Browning, A. (Glasgow, 1936), pp. 459, 471–3.Google Scholar

page 27 note 2 For example, Wriothesley, third duke of Bedford, settled a jointure of £5,000 a year on his wife (11 G. I. Private Act, c. 29). The income of the Russell estates about this time was over £20,000 (G. Scott Thomson, The Russells in Bloomsbury 1669–1771, p. 101).

page 27 note 3 D'Ewes, Autobiography, p. 308.

page 28 note 1 Between the late seventeenth and the late eighteenth century, in the family of the earls of Guildford, the eldest son in five successive generations married an heiress, and the father of the prime minister married three. Of the four eighteenth-century earls of Bute, three married heiresses, and one of them, the first marquess, married two. Between 1654 and 1736 the eldest son in four successive generations of the Watson family, earls of Rockingham, married an heiress. The Wentworth estates, acquired by the first of these marriages, descended to a younger branch of the Watson family, and came ultimately by marriage to another great landowning family, the FitzWilliams, which, between 163S and 1744, four times married heiresses. Between the late seventeenth and the late eighteenth century, four out of the five successors to the Grafton estates married heiresses.

page 28 note 2 The Complete Peerage, ii. 441; v. 35.

page 29 note 1 Gay, E. F., ‘The Temples of Stowe and their Debts’, Huntingdon Library Quarterly, ii (1938–9).Google Scholar

page 29 note 2 The new arrangements, however, increased the burden of taxation, for, in many cases, jointures and portions were specified as net amounts, free of taxes, and the burden on the landowner's income was correspondingly increased.