Landholding in England/Chapter 5

by Mary A. M. Marks

CHAPTER V.— PRIMOGENITURE

GREEKS, Romans, Britons, Saxons, divided lands equally, some among all the children, some among males only. But when the Emperors of Germany began to create honorary feuds, or titles of nobility, estates were made "impartible," that is, descending to the eldest son. This was done to increase the dignity of the "Counts of the Empire." The splitting up of estates was also inconvenient for military service, and younger sons were induced to take up with a country life, instead of engaging in military or civil employments.

In Saxon times, even the Crown was only hereditary in the family. Within that limit, the Crown was elective, and this was recognised at every coronation; and to this day, the acknowledgment of the King by the people is a part of the ceremony. The Crown of England is, theoretically, partly elective. In old times, this was more than a theory. In the days when kings were leaders, and on the personal character and ability of the King the safety of the country

… The old money rents of colleges must … have sunk almost to a fourth part of the corn which they were formerly worth. But since the reign of Philip and Mary, the denomination of the English coin has undergone little or no alteration, and the same number of pounds, shillings and pence, have contained very nearly the same quantity of pure silver. … But though the real value of a corn rent varies much less from century to century than that of a money rent, it varies much more from year to year. … From century to century, corn is a better measure than silver, because, from century to century, equal quantities of corn will command the same quantity of labour more nearly than equal quantities of silver."—Adam Smith, "[[Wealth of Nations]],"" Bk. 1. chap. v.

"Next to tenancy at will, we rank money rents as the great bar to improvement in English agriculture. To the conversion of money unto corn rents the Scotch farmers attributed their superior condition, and ability to continue improvements on their farms even during the trying times 1833-35. They say the tenants were 'saved' by this.

"A corn rent is the payment of a certain fixed quantity of farm produce to the landlord in lieu of a fixed sum of money. The tenant pays only so much money as the number of quarters of wheat or barley which constitute his rent have actually sold for in the market."—Greg, "Letters on Scotch Farming in England, 1842."

depended to an extent far greater than is the case now, this theory gave the right to pass over an infant or an incapable heir, in favour of a prince of more mature age, and more fit to reign. It is only in a comparatively settled state of things that a nation can afford to make the personal fitness of its ruler a matter of minor importance. Important it must always be, and a rash, foolish or unworthy ruler—whether he be called king or emperor or president—can do incalculable mischief; but in ancient times he could absolutely ruin a country. For obvious reasons, however, the natural course was for the eldest son to succeed. Power cannot be divided between the members of a royal family. But where the possession of land is concerned, the case is entirely different.

In England primogeniture was introduced by the Conquest. But this is only true of lands held by knight-service—soccage estates often descended to all the sons equally, as late as the reign of Henry II. Primogeniture came in gradually. Henry I., as a compromise between the old laws and the new—Saxon and Norman—directed that the eldest son should have the principal estate, the rest, if there were others, to be divided among all the sons. But by Henry III.'s time soccage lands had almost entirely fallen into primogeniture. Only in Kent and in parts of Sussex did the old Saxon tenures of Gavelkind and Borough English still linger.^[1] In those counties the presumption was that lands descended by Gavelkind, and the contrary must be proved by a claimant. In all other parts of England primogeniture was presumed, unless Gavelkind could be shown.

By the system of entails, the land must descend to the next direct heir. But it often happened that a tenant-in-tail wished to alienate his land, and innumerable devices and legal fictions were invented to enable him to do so.

De Donis was in force for two hundred years; and all this while entails could not be barred, though ever since the reign of Edward III. the Chancery lawyers had been hinting that recoveries could bar them. But it was never done till the twelfth year of Edward IV. (1473). That astute monarch (who, whatever his superior legal right, actually obtained his crown by victory on the field of battle) had observed how little effect the many attainders for treason had on families during the civil war, when these families were protected by entails, so that their estates could be forfeited only for the life of the attainted holder. He therefore allowed Taltarum's treason case to be brought into court, when the decision of the judges established that "a common recovery could bar an entail."

Of these "common recoveries," Blackstone remarks:

"At present, I shall only say, that they are fictitious proceedings, introduced by a kind of pious fraud, to elude the statute de Donis, which was found intolerably mischievous, and which yet one branch of the legislature would not then consent to repeal: and that these recoveries, however clandestinely begun, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance … and even acts of parliament have by a side-wind countenanced and established them."—"Commentaries," II. 117.

The "pious fraud" was one of the most extraordinary of legal fictions. A, a tenant-in-tail, who wished to turn his estate into fee-simple, in order to obtain the power of bequest or alienation, would get someone, B, to bring an action against him for the recovery of the freehold, by claiming to be the true owner. A, instead of defending his title, would get a third person, C (generally someone who notoriously had no lands, lest A's natural heirs should try to recover from him), and put him forward as the person from whom, or from whose ancestors, A derived his title, and who had "warranted" A against all comers. B would then ask leave to "imparl" C—that is, to confer privately with him. But when B came back into court, it was to announce that C had "departed in contempt of the court"—that is, he had run away. Upon this, judgment would go by default against the claim of A, and the lands would be awarded to B as an estate in fee-simple; A and his heirs becoming entitled to a recompense of equal lands from C, by virtue of his supposed "warranty," because if C had not run away, a stranger would not have been able to claim "by title paramount." The oddest thing is that B was not necessarily the man to whom A wanted to sell. It might be that A only wished B to reconvey the land to himself, by which means A would get it in fee-simple, and could do as he pleased with it. In later times there was not even the formality of actually going through this farce—the several incidents of it were stated on a "record"—the appearance of C, the mysterious imparlment, C's disappearance and all—and it did quite as well. But, ridiculous as it must seem, this farce had the good effect of giving a man a clear title. Taltarum's case is usually quoted by lawyers as the one which made this method of barring entails an avowedly legal process; but it obtained before, and it certainly says a good deal for the honesty of B and C that no one ever seems to have tried to take the fiction seriously, and remain in possession. Of course, the whole neighbourhood where A's land lay would know the facts of the case, but if B had chosen to cleave to the estate, it would have been exceedingly difficult for the Common Law to touch him. Sir F. Pollock says: "It is possible that in the earlier days of common recoveries everything was really left to his honour."^[2]

Primogeniture, in becoming all but universal, did not take the people off the land in the fifteenth century—that is, in the days of fixed tenures, and rents which were never "enhanced." It had, however, one very mischievous consequence, which Mr Rogers calls "the institution of the Younger Son." Under an unequal division of the land, the younger son was a hanger-on of his elder brother. He had to be provided for in some other way than by giving him a part of the paternal estate. Rogers goes so far as to say that "the great war with France was waged in the interest of the younger son." He certainly got the most out of it, and his presence made it easier to carry it on, for he would come bringing with him a goodly number of his brother's tenants. It is a great mistake to suppose that chivalry had no commercial aspect, and that mediæval wars were waged solely for honour and glory. They were very profitable concerns, in many ways, besides the thumping sums for ransom which a lucky capture ensured. A little later the younger son was to be the prime cause of those perpetual plantations which kept Ireland unsettled from generation to generation. Perhaps Mr Rogers was thinking of this when he said: "For generations he was a mischievous, and sometimes a hateful, adventurer." He was worked off on Ireland, just as later he was worked off on India.

1. Gavelkind divided the lands among all the sons; Borough English gave the land to the youngest son.
2. "Still later, the part played by C was assigned by settled usage to the crier of the Court, who in this capacity was called 'the common vouchee,' and thus cheerfully, and, we presume, not ungainfully passed his life … in perpetual contempt of the Court of Common Pleas, and hability to be fined at the King's discretion."—Pollock, "The Land Laws," p. 82.