The concept of “love and romance” were never required in marriage among the English aristocracy. Certainly there were some who did marry for love, but early on, the idea of marriage became a “business transaction,” instead of a romantic joining of like minds. For many, a genuine obstacle to matrimony was financial considerations, including the idea of inheritance, marriage settlements, entailments, and primogeniture. Marriages were made between those of the same social circle in order to secure a blood line or to secure property. Marriage settlements were contracts that aligned those “…within the landed class. The business side of [such] arrangements were shrouded under a sacred cloth of tradition and accepted formality, and solicitors were usually left to deal with the legal intricacies. Contributions towards a couple’s maintenance and provisions for offspring of the marriage came from the two families involved. The contribution from the wife’s family was known as the dowry, or portion, and this was settled on the couple, though the husband usually held control of it.…” (Montgomery, Gilded Prostitution. Status, money, and transatlantic marriages, 69)
Women’s lack of educational and professional opportunities throughout history prevented them from acquiring their own wealth and independence. This situation was exacerbated by the common law practice of primogeniture, which left women with little choice but to secure their social status and economic welfare through marriage.
Let us look at how the custom of primogeniture became the law of primogeniture and how history changed marriage and family life within the aristocracy of England.
Primogeniture, as practiced in Great Britain, is a distinct combination of law and custom. It finds its roots firmly planted in the time of feudal lords presenting land grants to knights who served them well. Primogeniture is also the creation of law because it serves as a fixed rule of succession in case of intestacy with a preference being bestowed upon the eldest son in wills and settlements regarding landed estates.
To understand primogeniture as it is practiced in England, one must possess a working knowledge of the history of the custom. Sir Henry Maine, a British comparative jurist and historian of the mid 1800s, tells us, “There are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem.” [Maine, Ancient Law, 226]
In William Blackstone’s Commentaries on the Laws of England, the author addresses the “law” of primogeniture as it applies to inheritance of land ab intestate, referring to laws governing the succession of property after its previous owner dies without a valid will. With primogeniture, males take precedence over females, and where two or more males exist in equal degree, the eldest alone inherits.
Some experts purport that Aryan law and the laws relating to the land tenures of lower Bengal serve as the beginnings of primogeniture. However, researchers cannot unequivocally claim that primogeniture belonged to the customs of these early societies, nor does it find its origin in the annals of the early Roman Empire, for the practice of primogeniture is at variance with the principle of equality, which operated in those communities, where the eldest son held no advantage over his siblings. Maine [Ancient Law, 134] claims, “An absolutely equal divisions of assets among the male children at death is the practice most usual with society at the period when family dependency is in the first stages of disintegration.”
However, this statement does not take into account Ireland’s Brehon Code, which not only divides the assets equally among all children of the marriage, but also accepts the claims of illegitimate children. Nor does it address the Anglo-Saxon custom of gavelkind, which has prevailed in Kent and Wales and parts of Ireland into the present day. Under the Solonian constitution, the Athenian State set the law of succession to mean that all sons inherited equally, with the only privilege claimed by the eldest was that of first choice of division.
In application, primogeniture cannot be traced to a time before feudalism. Although we know difficulty in defining the means by which the practice came into being, we do know that when land ownership equaled power and wealth, keeping the disputed land intact became all important. Primogeniture owes its longevity to politics and economics. Land grants and “honorary feuds,” with their attached titles of nobility, laid the groundwork for primogeniture as a form of succession. The feudal lord was not indebted to family law, as were allodial property owners who occupied the land and held it in defense of a takeover. The feudal lord expected his tenants to meet certain obligations, especially that of serving in the lord’s army. When the father passed, the eldest son was the most logical replacement for the tenant’s feudal responsibilities. The need to have but one head to speak for the family was important in these early states. The eldest son became invested by the feudal system because he was expected to assume his father’s position in service to the lord. Even so, the feudal system, at least in its early stages, did allow for the ruling lord’s preferences. Occasionally, the feudal duties fell to a younger son.
Although we also cannot name the exact date when the Common Law of England replaced gavelkind and socage fees, it was sometime before the end of the thirteenth century. The use of entailments also occurred about the same time.
Blackstone, William. Commentaries on the Law of England. Clarendon Press, Oxford. 1766.
Maine, Sir Henry Summer. Ancient Law: Its Connection to the Early History of Society, and Its Relation to Modern Ideas [New York, Henry Holt & Co., 1964], 134.
Montgomery, Maureen E. Gilded Prostitution. Status, money, and transatlantic marriages, 1870 – 1919. [Routledge, 1989], Published August 6, 2013, Amazon Digital Services. 96.