Of late, I have been studying the laws and statutes that comprised the practice of primogeniture in Regency England. In truth, I can only work on the project for a few hours each day for some of the material is written in such legal jargon that it has me back checking the meaning of certain words and of individuals, known widely in the UK, but of whom I am unaware here in the States. Therefore, I am attempting to clear my thoughts by placing them on paper (so to speak).
First, I discovered that there are few statistics available to chronicle the incidence of primogeniture as part of settlements and wills. During the period in which I am researching there were no register of settlements of land ownership, existing in the greater part of England. Scotland had such a register, but looking at them creates a conflicting estimates of settled and unsettled property. I have looked at several sources for wills, but they do not show the extent of the land bestowed. Nor can I determine with any accuracy whether they are displaying a will that aggravates or mitigates the settlements upon the eldest son. In the Regency, as far as I can tell there was no distinction in the records as to land passing by will and land passing by settlement. Even so, we can catch a glimmer of the influence of primogeniture on the social life of England.
First, we must recall that personal property is exempt from the law of primogeniture. Nor must it be forgotten that by English law, ordinary lease holds whether they consist of lands or houses, count as personalty and are distributed as such on intestacy; whereas, money in trust for investment in land counts as realty and falls under the same rule of inheritance. Vast lease holdings were constantly included in settlements of personalty, all without any references to primogeniture. In most instances, the funds were invested equally for the benefit of all the sons and daughters, though a power was usually reserved to the parents of modifying this distribution by “appointment,” at their own discretion. Testators of small landed estates purchased with their own funds also could direct the land to be divided equally among their children.
For members of the yeoman class or of the gentry, the ordinary practice was of primogeniture, with the inheritance going to the eldest son, but that, in accordance with the Scottish rule of legitim, younger children could be compensated, so far as possible, for their disinherison. If the land was burdened by mortgages, it could be sold and the profit divided equally among the survivors.
Gavelkind stood in contrast to the custom of primogeniture. Gavelkind is practiced in Kent, Wales, and parts of Ireland. In gavelkind the younger children are placed on equal footing with the eldest son, either by the subdivision or by heavy charges on the tenant-right.
Primogeniture was popular among the landed aristocracy and those who wished to be counted among their ranks. Among English squires, Scottish lairds, and the Irish gentry, primogeniture was accepted as a fundamental law to which the practice of entails, which was introduced in 1685, added substantial power. Currently in England, where so much land is in the hands of corporations or trustees for public objects, and where almost all deeds relating to land are in private custody, we cannot venture to speak with much confidence on this point.
Large estates were generally entailed either by will or settlement. Smaller hereditary estates were also often entailed. Some land that changed hands each year did so by the governance of the law of intestacy. What we do know is that an intestate may be carried into effect by arrangement within the family, or an amicable suit in equity, without the public becoming aware of the fact, especially if those wishes should coincide with the course of descent at common law.
Mr. Joshua Williams, a barrister at Lincoln Inn (1845) in his Principles of the Law of Real Property says, “In families where the estates are kept up from one generation to another, settlements are made every few years for this purpose; thus, in the event of a marriage, a life-estate merely is given to the husband; the wife has an allowance for pin-money during the marriage, and a rent-charge or annuity by way of jointure for her life, in case she should survive her husband. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and the younger sons of the marriage, the eldest son who may be born of the marriage is made by the settlement tenant-in-tail. In case of his decease without issue, it is provided that the second son, and then the third, should in like manner be tenant-in-tail; and so on to the others; and in default of sons, the estate is usually given to the daughters; not successively, however, but as ‘tenants in common in tail,’ with ‘cross remainders’ in tail. By this means the estate is tied up till some tenant-in-tail attains the age of twenty-one years; when he is able, with the consent of his father, who is tenant for life, to bar the entail with all the remainders. Dominion is thus again acquired over the property, which dominion is usually exercised in a re-settlement on the next generation; and thus the property is preserved in the family. Primogeniture, therefore, as it obtains among the landed gentry of England is as custom only, and not a right; though there can be no doubt that the custom has originated in the right which was enjoyed by the eldest son, as heir to his father, in those days when estates-tail could not be barred.”