Excepting the Aristocratical

Ian Gilmour

  • Marriage, Debt and the Estates System: English Landownership 1650-1950 by John Habakkuk
    Oxford, 786 pp, £65.00, September 1994, ISBN 0 19 820398 5

Lawyers have seldom had a good press. According to Shelley’s father-in-law, William Godwin, a lawyer could ‘scarcely fail to be a dishonest man’, though that, he added, was ‘less a subject for censure than regret’. Shelley’s friend and biographer, Thomas Jefferson Hogg, being himself a barrister, could not go quite so far, but his verdict was almost as sweeping:

the most profound ignorance is ... the grand, unenviable distinction of the English lawyer – an animal too often drawn from the dregs of society – and the place of the real property lawyer is commonly at the bottom of this low scale. The conveyancer is usually some damaged article ... a cracked pitcher, deformed in person and disfigured, ridiculous through an impediment in his speech or by some broad provincial dialect, hardly to be understood by hedgers and ditchers; too vulgar for any judicial appointment, and ... not respectable enough for an attorney. Hence arises the pemicious ascendancy ... of low connections and low arts, and the absolute impossibility, so long as this state of things continues, of a thorough reform of the law, and of the mode of transfer of real property in England.

Hogg was given to overstatement and had a gift for disparagement, which did not endear him to the Shelley family. ‘Astonished and shocked’ by the first two volumes of his life of the poet, they regarded his book as ‘a fantastic caricature’, though it was in fact almost as favourable to Shelley as to its author. Hogg’s remarks on real property lawyers were certainly a caricature, but not one that was unrecognisable. Not long after his book appeared, no less a figure than the President of the Law Society told a legal audience that ‘many of the entails created [were] more for the benefit of the lawyers than of their clients.’ He conceded that such a view would be regarded by some as ‘rank heresy’, but he had formed it as ‘the result of forty years’ experience in a branch of the law into which [he had] had the most intense experience’. What was rank heresy to the Law Society had long been conventional wisdom to laymen.

From about the middle of the 17th century to the end of the 19th, as Sir John Habakkuk, who thinks more kindly of the legal profession than Hogg and Godwin, shows in his massive and compelling account of English land-ownership over three hundred years, the most common of the ‘entails created’ by the lawyers was the strict settlement. The object of that ingenious legal device was to keep the family estate intact by preventing the apparent owner from selling it. As Ricardo wrote in 1820 the equal division of properties among children was the prevailing practice in all English families ‘excepting the aristocratical’. Consequently a landed estate was inherited by the eldest son, and a strict settlement had to be based on an agreement between the apparent landowner and his eldest son. The word ‘apparent’ is necessary because under the strict settlement ownership was vested in trustees and the apparent owner was only a life tenant – that is to say he received the income from the estate but had no power to dispose of the estate itself. A strict settlement was usually made when the eldest son came of age or was about to be married: father and son agreed to be successive life tenants, after which the estate was to descend to the son’s eldest son, who would be tenant in tail. Since, unlike a life tenant, a tenant in tail could break the entail, that eldest son would have the power, if nothing more was done, to sell the estate when he came of age. But something more nearly always was done. For when he in his turn became 21, or was engaged to be married, the same arrangement was made again, and so on and on.

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