1. INTRODUCTION
It might seem a commonplace to observe that the both the breadth and the depth of kinship relations were reflected in the law in pre-modern England, particularly in the case of issues involving property rights.Footnote 1 Amongst other areas of the law, property and kinship intersected in the realm of inheritance, in marital property regimes, and in the provision for economically distressed family members. Each of these discrete though interrelated topics will be addressed in this article, principally because of their critical position in understanding how English law addressed matters of kinship and of family relations. Occasionally attention will stray geographically across the Channel: continental practice will be used to provide comparisons to the English pattern. Likewise, a glance forward to our own time will place law and kinship issues in more familiar contexts.
At the outset, a caveat is warranted. It is simply that the complexity of the links between kinship and the law, coupled with the current state of research, limits the conclusions that we are able to draw. Rather we must be satisfied by formulating compelling questions and isolating issues to be investigated further, rather than issuing definitive answers in what is, after all, at best a preliminary essay on this vital connection. Yet posing questions in this vexing way is how academic lawyers proceed in teaching and analyzing the modern legal order. Conventional wisdom holds that a line of questions (the right ones strung together) will lead to some further understanding of possible resolutions of the threshold query initially posited. Perhaps this method, unsatisfying as it may be, will be helpful in refining how the law addressed kinship and family relations in the pre-industrial English past.
2. LAW IN LAYERS
A simple question begins the enquiry: when it is associated with kinship relations, what comprises the ‘law’ that we seek to consider and analyse in early modern England? An immediate response, at least amongst historically minded lawyers, is to purloin the definition that the great synthesizer of English law Sir William Blackstone offered: ‘a rule of civil conduct prescribed by the supreme power commanding what is right and prohibiting what is wrong’.Footnote 2 However, having served up Blackstone's offering, his formulation needs immediately to be debunked, or at least we must agree that the definition is probably too narrow for our present purpose: understanding how law intervened in and governed family relations. Indeed Blackstone himself would probably have acknowledged that positive law played a meaningful role in linking legal obligations and kinship ties (and in this article reference will be made to both statute law and judge-made law, including both the common law and equity by use of the term positive law). Yet no single source of law governing family relations had obtained a monopoly. Positive law shared the stage with ‘practice’ or ‘custom’, hence my contention, expressed in the heading to this section, that the law which had an effect on kinship and family relations consisted of multiple and overlapping layers.
Both the terms ‘practice’ and ‘custom’ are particularly vexing, and cry out for a more precise definition than has just been offered: what each is rather than what each is not. The characterization that Peter Laslett used for his ‘noueminal normative rules’ – programmatic principles, generally accepted, that govern behaviour – should suffice.Footnote 3 The concept embodies a recognition that that which society expects legal actors to do is generally done, within bounds or ‘margins of appreciation’.Footnote 4 Though it is a useful characterization of how individuals actually act, adhering to custom is not inconsistent with individual volition. Normative rules are not inelastic; property holders have a range of options in transmitting their property by navigating within the bounds of custom, as did couples who contemplated marriage in early modern England.
This approach to law has a fairly sound pedigree. Stressing that there is a further player – practice or custom – that shared the stage with statute and judge-made law within early modern England's juridical ‘Empire’,Footnote 5 and that custom does not preclude choice is reminiscent of the position on law in primitive societies staked out by Bronisław Malinowski nearly a century ago.Footnote 6 His struggle to recognize that volition was a component of custom, and that to some extent a legal order based thereon approximated western law, clashed with the conclusions of other legal anthropologists who worked on Melanesia (and elsewhere) and who held that custom was rigid and that its dictates were slavishly followed by individuals.
In Malinowski's view, however, operating within the bounds of custom involved calculation, and allowed latitude for choice; he argued that what he called ‘binding principles’ adhered to by that society should be considered ‘law’. His discussion pondered whether ‘savage law’ was actually present in a far wider range of contexts than merely in inheritance. He clearly believed that strategic choices were guided by more than merely blind intuitive obedience, and that the processes governed a variety of areas of kin relations. For example, though they need not, widows publicly mourned their husbands in return for future support from the deceased's family; brothers lavished food upon their sisters' families rather than skimping, calculating that opulence would improve their standing within the community.Footnote 7 Of course, he made no claim that the law was redacted with precision like western law; yet he happily noted that many relationships in western societies – in Oxford colleges, for example – were governed by unwritten rules.Footnote 8 Malinowski believed that Melanesian law, like positive law in modern western societies, provided parameters in which individuals conducted their affairs both within and outside the family group.
2(a). Marriage formation
At this stage an example might be helpful. Consider the layers of marriage-formation law: where was it found; and what were its dictates? One may begin with positive law: when Parliament allowed priests to marry in the reign of Edward VI, it required priests to adhere to the process established by canon law.Footnote 9 That route was adumbrated: banns were to be called, and a priest was to officiate at a ceremony stipulated in the Book of Common Prayer. Likewise, when Parliament imposed duties on the issuance of marriage licenses, it was because they assumed that licenses were required under certain circumstances.Footnote 10 There was, however, another layer of law which seems to have allowed marriage that neither followed the canon law nor required a licence. Throughout early modern England, many English folk married clandestinely, without a licence, and simply by exchanging promises to marry without following the process set out by canon law and outside of their own parish church. Nevertheless these unions were regarded as binding and indissoluble.Footnote 11 Thus while the two layers of law seem inconsistent, what they did was to create alternative pathways to marriage.
2(b). Inheritance
A second example of the layering of law is that of inheritance: where was it found; what were its dictates; and was it actually followed? These queries require nuanced responses. Each type of property, real and personal, had its own pattern of distribution. When a property holder died, the descent of land was based upon the location of that land and its form of tenure: its legal ‘quality’. Personal property was transmitted to heirs, also based upon the pattern of succession in force in the probate jurisdiction where the property was located. Yet the crucial issue for the historian in coming to terms with how the law treated kinship rights in property was whether the patterns of distribution embodied in these laws were mandatory or whether deviations from its terms were permitted. For if property law left latitude for a modicum of individual choice in selecting which individual received which piece of property, what property holders actually did with their land and chattels is as significant as the laws' direction for fathoming the length and depth of kinship obligations.
Even before our period, both patterns of intestate succession to goods and succession to land, the custom of primogeniture, came to be fixed, although local custom or the peculiarities of the precise form of land tenure might vary both the transmission of goods and descent of land.Footnote 12 However these were default rules: patterns of distribution of goods implemented in the absence of individual direction.Footnote 13 Thus the law allowed transmission to be governed by individual choice, stipulated by will or by gift. Likewise, unlike the reports of French inheritance mandates redacted in some of the custumals,Footnote 14 land could be transferred without regard to the claim/s of the heir or heirs, and more land in England probably passed from the dead to the living by settlement, inter vivos and/or by will by the seventeenth centuryFootnote 15 rather than through the inheritance pattern, ‘primogeniture.’Footnote 16
This untidy process of property transmission – a combination of will, settlement, and hereditary succession – could proceed along individual lines because a central tenet of English property law was that property, real and personal, was freely disposable by its owner during his or her life and at death. Rather than allowing the dictates of statute or judge-made law to govern succession, the law permitted property holders (within temporal bounds, as we shall see) to create distinctive patterns of transmission by settlement or by will.Footnote 17 Powers of free disposition granted to property owners by law allowed them to put in place an individualized pattern of intergenerational transfer, and the routes selected provide a more powerful indicator of the depth and breadth of kinship ties than does the bare law itself. As Alan Macfarlane has argued, individual will was free to trump family claims early on in the history of English law.Footnote 18
However, as a practical matter, what the law permitted was individual resort to one of the normative rules that Laslett adumbrated.Footnote 19 While the law recognized the right of a property holder to disappoint his or her heirs, radical deviations might enmesh an estate in testamentary litigation.Footnote 20 More frequently than the disinheritance of kin, what property holders did was, after individual contemplation, to apportion property amongst family members, creating ‘strategies of inheritance’. The aggregate of the patterns adopted by property owners reveals cultural norms on kinship relations with respect to property transmission, even though the actual pattern selected might vary considerably in individual cases. Unhappily, focusing on what individuals did rather than on what pattern of devolution would take place if they stood pat and did not craft a settlement or write a will is more painstaking to uncover than positive law. There are, though, some indications of how property was actually transmitted between the generations, and we shall be exploring the evidence.
3. LEGISLATION INVOLVING KINSHIP RELATIONS
Having stressed the need to think broadly about what constituted law in early modern England, let me begin by addressing positive law. That there may have been a disjuncture between the dictates of inheritance law and the patterns of succession to property that actually occurred, for example, does not render the study of statutes or judge-made law a futile exercise. The study of legislation and case law as expounded by judges yields useful information on kinship relations for social and economic historians. In this survey, it is appropriate, having relied initially upon Blackstone as our guide, to turn our attention to Parliamentary legislation, what he called ‘the very essence of a law’, before moving on to the case law.Footnote 21
At first glance, it is striking how few in number were those enactments that involved kinship and family ties when the statute book is thumbed.Footnote 22 An analysis of the statutes of the realm from the reign of Henry VIII through that of Anne (1509 to 1714) illustrates that Parliament was making law in many different areas. For example, the Parliament of Henry VIII was concerned with ‘the multitude of cattle’ in the realm, bringing in a command ‘for bringing up and rearing of calves’;Footnote 23 Edward VI's Parliament addressed the ‘true stuffing of featherbeds mattresses and Quysshions’,Footnote 24 and Elizabeth's Parliament was exercised over the ‘making of Salte within the Queen's Majesties Dominions’.Footnote 25 Skipping ahead to Charles II's reign, Parliament brought in an act ‘prohibiting the importation of foreign bone lace, cut work embroidery, fringe, bondstrings, buttons, and needlework’,Footnote 26 and, finally, Anne was concerned about the ‘Deaths of persons pretended to be alive’.Footnote 27 Accordingly, a simple summing up of enactments from the reign of Henry VIII through Queen Anne illustrates that, out of the over 2,100 statutes enacted,Footnote 28 a scant handful – a couple of dozen at most – even tangentially refer to family or kinship matters. Religion, crime, and economic regulation were more grist for the legislature's mill than was family law.
Parliamentary activity with a connection to kinship can be divided into four spheres: marriage, child custody, naturalization and inheritance. The first three will be discussed individually in this section; statutes concerning inheritance will be more fully treated in the section that follows.
3(a). Marriage
The greater part of the statutes that concerned marriage during our period reckoned with the political and religious upheavals of the early modern period. One group of enactments extended the ability to marry to those whose status had hitherto precluded them from entering into unions prior to the Reformation. An immediate, albeit modest, inroad was a statute that allowed the Six Clerks in Chancery to marry.Footnote 29 The justification to permit marriage recited in the statute was that the bar was a disincentive for individuals to remain in the office ‘to ther great hynderaence losying [by marriage] the benefit of ther long study and tedious labours.’ This act was followed by a statute that mandated a return to the narrower Levitical degrees originally observed, which therefore permitted marriage within a wider group of kin, rather than continuing to recognize the extended degrees practised in Catholic Europe according to ‘the usurped power of the Bishop of Rome.’ According to this statute, the practice of broader exclusion had no basis in theology, made unions uncertain, and was chiefly calculated to allow the church to collect fees for dispensations to marry kin within the needlessly enlarged universe of prohibited degrees.Footnote 30
It took nearly a quarter-century, however, before Parliament, reversing the course set in the reign of Henry VIII, abrogated another central Catholic practice, the ban on clerical marriage.Footnote 31 Clerical marriage was bound to produce clerical issue, and in a subsequent statute Parliament pronounced them legitimate and therefore able to inherit from their fathers.Footnote 32 Another property-related right was extended to those ministers joined in marriage: priests' wives had their dower in lands owned in fee simple or fee tail by their clerical spouses, and priests had their curtesy in their deceased spouse's lands, tenements, and hereditaments.Footnote 33
Three statutes of the seventeenth century also dealt with marriage. The first was the Jacobean bigamy statute, which made a felony a second union where one of the spouses had been already been joined and the marriage had not been terminated by divorce or annulment or by seven years absence abroad or in the realm.Footnote 34 Second, a Restoration statute confirmed marriages that were established during the Interregnum, if they had been celebrated according to the ordinance then in force. Questions of marriage or legitimacy thereunder were to be tried by jury.Footnote 35 Finally, clandestine marriageFootnote 36 was discouraged, though not abrogated, by the adoption of the marriage duty acts in the reign of William and Mary.
The impetus for these three marriage acts was fiscal rather than familial – the cost of the wars with France – and the statutes set a fee of 5s. to obtain a license to marry. Parliament required the issuance of a marriage certificate in the law's first iteration.Footnote 37 Legislation in the next session provided a duty of 2s. 6d. for those marrying, with an increasing scale of levies stipulated, based upon rank.Footnote 38 It sought to avoid evasion by prohibiting marriages in venues outside the jurisdiction of the bishop in which a license was not obtained. Moreover, the law held the parson, vicar, or curate who celebrated the union liable to a fine of £100 for the first infraction, and suspension for three years after the second one.
However, evasion of the duty must have continued to occur because in the next session ‘An Act for the inforcing the Lawes which restrain Marriages without License or Banns …’ was adopted.Footnote 39 It recited the previous act, but reported that the earlier law was an insufficient deterrent, because only one fine of £100 might be levied against the offending cleric even if he celebrated multiple irregular marriages; the penalty was cumulative, and the cleric was not charged the rather hefty sanction for each marriage celebrated without license. So in clandestine marriage centres, it might still be profitable to celebrate numerous marriages without a license and simply pay a single £100 fine. Moreover, a cleric might depute others of lesser dignity not specifically mentioned (and therefore not liable to a fine) in the statute to officiate, or the marriage might be celebrated by an indigent minister or one in prison for debt, rendering collection of the fine problematic. So the 1695 statute provided a fine of £100 for clergy who allowed another to celebrate marriages in his church without licence. The statute allowed informers to sue the man married for £10 and the parish clerk who knowingly assisted for £5.Footnote 40 Whether the third act was more successful in curbing evasion than its predecessors remains doubtful, given the continuing popularity of clandestine marriage.
3(b). Child custody
The problem of the poor during the early modern period gave rise to a number of acts that referred to kinship obligation, and which culminated in the Elizabethan poor laws and Caroline settlement act. The earliest statutes, those of the reign of Edward VI, are of particular interest to family historians because they provided for a type of coerced ‘adoption’ of the children of the poor, at least with respect to parental custodial rights.Footnote 41 Justices of the Peace were permitted to remove a child aged 5 to 14 from the custody of his or her parents if the parents were unable, due to their own poverty, to maintain the child. The child was to be bound over to individuals who promised to set him or her to some useful ‘occupation’ until males reached age 18 and females 14.Footnote 42 There may have been some abuse by masters of these children in the early years in which this process transpired, because the second Edwardian statute included a provision not present in the earlier act, that allowing Justices to release those who were mistreated.Footnote 43
The practice of removing children from their parents was also available in the reign of Elizabeth.Footnote 44 An early Elizabethan statute continued the practice of permitting the binding over of the young to be apprenticed to those willing to sustain them until the child was of age. Although the late Elizabethan poor laws allowed a similar process, in addition they created the now-familiar infrastructure for dealing with the poor – both young and old and the infirm – through the poor rate and the workhouse.Footnote 45
The custody of children was more directly addressed in 1660 when the Restoration Parliament formally abolished the Court of Wards and Liveries, created in the reign of Henry VIII.Footnote 46 It did so by simplifying the system of land tenure, primarily by converting land held in military to socage tenure, therefore making it no longer subject to wardship. As a result of this alteration, the Crown lost the fiscal incidents of military tenures, and the act provided accordingly for revenue through excise taxes in recompense. In addition to the much-bemoaned fiscal exactions of the Court of Wards, it also supervised the land and person of the ward who held land from the Crown. In practice, the Court assigned the right to individuals who were frequently more interested in their own profit than in the welfare of the ward and his or her property.Footnote 47 Thus the dissolution of the Court made other guardianship arrangements necessary, and it allowed fathers by deed or will to appoint, in the event of their death, a guardian for their children under the age of 21.Footnote 48 Such an appointment empowered an individual guardian to take possession of his ward's personal estate.
3(c). Naturalization
Finally, a spate of acts was passed to naturalize subjects born out of the realm during the civil wars and other conflicts.Footnote 49 Certain named individuals and all children who were born out of the realm between 14 June 1641 and 24 March 1660 but of parents who were natural-born subjects were regarded as if they had been born within the geographical confines of the kingdom.Footnote 50 Likewise, children born of certain named individuals, and all others born between 13 February 1688 and 25 March 1698 of natural-born English parents in the service of the crown in the wars with France, were deemed to have been born within the realm.Footnote 51 Another statute addressed the inheritance of lands and titles by those whose parents were born abroad; it allowed children born within the realm to take lands and titles through ancestors, even though a parent was an alien.Footnote 52 Finally, a naturalization act that is interesting – particularly to the twenty-first century mind baffled by the debate over the bounds of permissible immigration in the contemporary western world – was passed, ‘An Act for naturalizing Foreign Protestants’. It allowed all Protestants who took a specified oath in open court in Westminster during the official law terms or at Quarter Sessions to be deemed natural-born subjects, so long as they had taken communion in a Protestant church within three months prior thereto.Footnote 53
3(d). Inheritance of property
In addition to these matters, Parliament also meddled with inheritance, addressing issues more directly related to property. Two acts dealt with lands held in gavelkind, the peculiar inheritance custom of Kent (and lands held elsewhere if the custom was proved) and in Wales, which mandated partible inheritance amongst male heirs of equal degree.Footnote 54 The Kentish statute abrogated the custom for lands held by a substantial list of named individuals in the county but specified that lands held by others were unaffected by the act,Footnote 55 while the Welsh version affected all lands.Footnote 56 Towards the end of the period, two other ‘local’ variations of inheritance law were abrogated, but this time for all those holding personal property in the two areas concerned: the province of York (excluding the freemen of the cities of York and Chester) and the principality of Wales.Footnote 57 In both these geographical regions of the kingdom, widows and younger sons were previously entitled to their ‘reasonable part’ of the personal estate of husbands or fathers, notwithstanding lifetime or testamentary provision made for such a wife or child. These statutes allowed property holders in the affected counties the same latitude in the disposing of goods as if they were in the Province of Canterbury, where free disposition of all goods was permitted. The statutes strengthened the rights of individuals to deal with their property without reference to the claims of family members.
Another act had the opposite effect: it limited freedom of disposition for a tiny segment of the kingdom, the Jews. An act of the reign of Anne provided that, should Jewish parents brandish the sword of disinheritance to discourage their children from converting to Protestantism, the Lord Keeper or Chancellor was empowered to make an order that the Jewish parent must maintain his now-Protestant child according to the parent's degree and ability, with reference to the age and the education of the child.Footnote 58
A third act was neutral on property ownership and individualism; it purported to protect posthumous children from being excluded from succeeding to the land under the terms of a property settlement. Parliament noted that some property settlements that governed the transmission of estates, generally ones executed upon marriage, did not limit estates in trust to preserve contingent remaindersFootnote 59 for sons or daughters born after the death of their father. The absence of such a provision permitted the collateral heir, usually a male, to take the estates in preference to a lineal descendant, male or female, who was born after the death of his or her father. The act allowed posthumously born sons – or a daughter in the event that the deceased tenant had no sons but produced a daughter posthumously – to succeed to the property as if the child had been born in their father's lifetime.Footnote 60 This act, as we shall see, ratified the norm that lineal descendants, even females, were preferred to collateral males in landholding families.
3(e). The Statute of Distributions of 1670
Within the sixteenth and seventeenth centuries, Parliament did set a pattern for intestate succession to goods in 1670 by enacting the Statute of Distributions.Footnote 61 This pattern, of course, provides us with some evidence of the perceptions of kinship obligation, its depth and breadth, so it is worthy of detailed review. It should be remembered that the proportion of will-makers in early modern England was probably in the neighborhood of 10 per cent of the overall population; resort to the pattern dictated by statute must therefore have been more frequent, at least with respect to those with a critical mass of property.Footnote 62 Not surprisingly, both the depth and the breadth of kinship mandated by the statute were limited under most successions. If the intestate left a wife, she received one-third of his personal property. The other two-thirds (or the entire estate if the wife did not survive) passed to the intestate's children, and if an intestate's child predeceased his father, depth was extended into a successor generation, allowing the deceased child's share to pass equally to those who (according to the statute's provision) ‘legally represent’ that child. This formulation meant that a deceased child's share passed to his own children as if he or she also had died intestate, so following the pattern of equal distribution mandated for children; accordingly, the deceased child's share was distributed amongst his or her children, regardless of their priority of birth or gender. Advancements to children – sums paid by the intestate to his children during the intestate's life – were taken into account in the final reckoning of the children's share of the intestate's estate, with the exception of the heir-at-law (under most circumstances the male heir). Thus if a child received a portion in either real or personal property from the intestate during the intestate's lifetime, including a portion paid over to a deceased child who left a surviving child (not an unlikely event because if the deceased child (or children) was (or were) married, he or she (or they) may have already received a portion at that time), the law included it in reckoning his or her child's intestate share. There was, however, no provision for a return of the excess value of a portion from any child advanced, so if the portion that was turned over to one of his or her children by the intestate during his or her life exceeded that child's intestate share, the child kept the excess bounty.
Although equality amongst siblings, male and female, was the thrust of the statute's mandate, the heir-at-law, the eldest male, did receive a lone benefit unavailable to his siblings. Land limited to him was specifically excluded from calculating his intestate share, though advancements of personal property were not similarly exempt. Should the intestate not have surviving issue, his wife received half, and the remaining half was distributed to the next of kindred in equal degree, again stipulating that those who ‘legally represent’ a deceased taker should succeed to that deceased individual's share. This process of representation of deceased inheritors terminated in cases in which the next of kin of the intestate was more remote than the children of the intestate's brothers and sisters.
Though the language of the statute might seem quaint to the modern student of decedents' estates, the pattern of distribution is not unfamiliar.Footnote 63 Concern was with kinship depth – the nuclear family and it descendants – rather than with breadth – collateral kin. While it was not uncommon for collateral kin to be remembered in a will, even in probates where the testator or testatrix left lineal descendants, the intestacy statute made no such provision. Admittedly, to include collaterals when issue survived might have resulted in a statute with confounding mathematics, but it would nevertheless not have been beyond the imagination of Parliament to draft a more complex statute if kinship breadth was a desired aspiration in intestate succession. The fact that this representation of wider kin was terminated in circumstances in which the next of kin were more remote than siblings also manifested a limited interest in kinship breadth.
3(f). Estate administration
In the sixteenth century, Parliament was also concerned about the effective monitoring and administering of the system of succession to property. For most of the realm, individuals were free to will personal property as they pleased. Through ‘feoffments to uses’, the rudimentary form of the modern trust, individuals could will their land. When the Statute of Uses was enacted in 1536, the ability to will land was curtailed, but it was reinstated in part by the Statute of Wills in 1540,Footnote 64 in which two-thirds of real property could be devised by will.Footnote 65 The validity of a will was determined by the church court in which the document was probated. If there was a dispute over the application of a will to personal property, an aggrieved party might bring an action in that same church court; if the dispute involved the disposition of freehold land, suit would be brought in the common law courtsFootnote 66 or in Chancery.Footnote 67 While title to copyhold land was still transmitted through the manorial courts, copyholders were often able to bring actions in royal courts.Footnote 68
The general thrust of the statutes adopted during our period that dealt with probate was to ensure that executors and administrators paid over the debts owed to an intestate's creditors before paying legatees and distributees, and that the fees charged did not exceed those mandated therein,Footnote 69 but concern was also manifested about the appointment of administrators of intestate estates.Footnote 70 In the reign of Henry VIII, Parliament provided guidance in selecting an administrator to the ordinary (the ecclesiastical officer who supervised probate of wills and the administration of estates) in estates in which no will was made (or found) or no executor named (or when the selected individual refused to serve).Footnote 71 Kin were preferred to strangers as administrators, and deference was also shown to the widow. The ordinary was bound to select either the deceased's widow or his next of kin, but he had discretion in exercising his choice amongst them. Where separate individuals claimed the right to administer as next of kin in equal degree, the ordinary could choose among them; if the individuals who claimed were not of equal degree, the ordinary was to admit the widow and one or more of the kin claiming administration, again exercising his judgement as to the most suitable candidate. The degrees of kin relationship were the ones established by ecclesiastical law.Footnote 72 While the closest kin were preferred, if a deceased person was indebted to a more remote kinsman (or perhaps woman) that individual might stake a claim to administration.
4. DEVELOPMENTS IN THE COURTS OF LAW AND EQUITY
Our attention may now turn to developments on the intersection of kinship and property law in judge-made law, in the common law and in equity jurisprudence. Observation of this segment of the law is particularly valuable in assessing transitions in legal thought, because it is more fluid and far simpler to do. Judge-made law is, after all, the decisions of a handful of jurists in the cases that came before them, rather than the perhaps more abstract principles implemented by the consent of the Lords and Commons assembled. Moreover, case law generally emerged from actual disputes over landownership rights under particular conveyances indicating the aspirations of landholders, though individual circumstances also governed the introduction of bills into Parliament that might result in Estates Acts.Footnote 73 The judges were charged with fashioning narrow principles of law that resolved the property rights of claimants in the matter before them, rather than with articulating more broadly based proclamations on what modern legal thinkers relegate to the realm of ‘policy’.
Historians might question the dynamic nature of judge-made law that is offered here. After all, were not the judges just following precedent? While judges in both law and equity searched for authority (previously decided cases and summaries of doctrine provided by commentators on the law) in deciding the outcome of cases, they were not bound by precedent; they believed that they followed earlier cases because the opinions therein were well-reasoned. For example, Peter King, Chief Justice of Common Pleas in the early years of the reign of George I, noted in his unpublished manuscript reports – and not infrequently – that some cases cited in printed reports had never been or no longer were law.Footnote 74 His court was not unwilling to make new law prospectively or to reverse course and overturn rules of law that might have been established in previous cases. Moreover, cases also arose which were at the edges of previously settled doctrine, and others left the court in what were largely uncharted waters.Footnote 75 Common law and equity principles should therefore be thought of as being engaged in an ongoing conversation at the very least or, more strikingly, as being in a constant state of reinvention, with new principles often teased out of, or extrapolated from, the old law in order to resolve particular disputes that had arisen more recently. Thus issues of land law that may have affected rights that kin might claim in land emerged in the course of cases and were resolved by recourse to such processes.
4(a). Restraints on alienation
Regrettably, surveying the common law is a far more onerous chore than is the task of wading through statute law, where straightforward tabulation can be made. Thousands of cases came before courts of law and equity during the early modern period observed here, but only relatively few are reported in print. However, one very important area of the law that addressed the intersection between kinship and property can be isolated, and illuminated here. It was the extent to which one generation could render land inalienable in the hands of succeeding generations: how long would the law permit a current landowner's volition (expressed in a will or inter vivos settlement) to circumscribe the ability of his successors to sell settled land outright or to craft his own pattern of settlement of that same land for his own successors? To use our terms, to what generational depth might an individual owner of property govern the ability of descendants or successors to direct the devolution of his land after his death?
Modern lawyers will note that there is a timeless quality to this conversation about the period, the generational depth, and the time span for which land settlements could continue to suspend the powers of holders and their successors to transfer property.Footnote 76 Modern cases investigate the current resolution of the conundrum about how long powers of alienation should be suspended: the rule against perpetuities.Footnote 77 The modern view in resolving the dilemma is to settle upon a time span that a person holding land that was freely alienable could settle the land so as to render the same property inalienable in the hands of his successors. Alas, the judges during our period seem to have regarded that path as too straightforward. Initially, they focused upon the conveyancing form adopted in the settlement or will rather than honing in upon the time span during which the owner could suspend the powers of alienation in successors.
4(b). Transferability and entails
Because here is a timeless quality to English law's conversation on restraints upon alienation, we may begin a couple of centuries after the Conquest, after the recognition that freehold estates were transferable inter vivos, even though our focus is on the early modern period. In order to allow individuals to remove free alienation from their successors, Parliament enacted the much-discussed statute De donis,Footnote 78 which permitted land specifically limited ‘to the heirs of the body’ to remain inalienable for longer than the life of the tenant in possession, and mandated that the property so ‘entailed’ should pass to the lineal descendants of the grantee, in theory, forever.Footnote 79 The statute allowed property owners to think dynastically: it allowed them to elongate kinship depth because at least in theory, a property owner who limited an estate ‘in tail’ had his mind set on the transmission of his property for generations. Entails might also be employed to extend kinship breadth: land could be entailed to the ‘heirs male of the body’ of the previous generation. So while the entail's maker was first looking downwards at his own lineal descendants – his patriline – he was also glancing at his collateral heirs, at his male siblings and their issue. Should male issue fail to be produced by his own male heir or that male heir's male heir and so on, his brothers, or their male descendants, would succeed to the property in rank order of birth. Therefore, because the settlement might provide that the settler's collateral male heirs could be takers in the event of failure of male issue, the universe of potential takers was expanded, at least in the next (and successive) generation(s).
The limitation of estates ‘in tail male’ did had the effect of excluding female children from the inheritance of land as co-heirs because, under the canons of inheritance, if a landholder died leaving only a daughter or daughters, the lone daughter would take the estate or the daughters would divide the estate as co-heirs.Footnote 80 However, if the landowner so chose, he could create interests in the heirs male of the body of his daughters in default of male issue of his body, similarly elongating the search for kinship depth through that descent line. Thus a landowner could prefer the male heirs of his daughters and their descendants to collateral males.
When were these decisions made? Purchasers could have land transferred to them in tail; or landowners could convey property to their children in tail. In the course of the fourteenth century, another avenue of settlement became possible. Through the conveyancing construct of ‘feoffments to uses’ – a transfer of land created during a landholder's life in which legal title was held by an individual subject to the beneficial interest of another – he could express his personal preferences on the manner in which enjoyment of the property would descend in his will. This development allowed a landowner to observe the configuration of his own nuclear family late in his life, after his procreative career had ended. If he had a male heir, his decision was straightforward, but if he did not, he could decide whether to allow his land to pass to his daughters or, if not, which male collateral he wished to choose to succeed to his landed estates.
Eventually, the entail's operation was limited in time and then its inalienability was finally abrogated, but not until the late fifteenth century, when the common law courts sanctioned the use of the common recovery to bar entails.Footnote 81 By allowing the tenant in tail to defeat the interest in his heirs (to invalidate the estates limited in it), the judges overturned the will of a medieval Parliament on the ability of landowners to think dynastically. One might argue that the demise of the entail – the ability to terminate it, which valued (or at least respected) both kinship breadth and its depth – was itself a statement about kinship and the rights of kin in ancestral land.
4(c). Perpetuities
While the courts permitted entailed land to be transferred, the dynastic aspirations of landowners seem to have remained unchanged. Landowners returned to settlements that strove to control the disposition of land over generations: property settlements again seem preoccupied with kinship depth. Over the course of late sixteenth and seventeenth centuries, a segment of the legal profession – conveyancers – and a genre of legal literature – conveyancing manuals – appeared that were devoted to forms of property settlements with imaginative legal constructs that would achieve the same end as the entail.Footnote 82 Property holders had not abandoned the hope of creating a perpetual interest in their land so that it would descend through a patriline, male or female, by removing powers of disposition in a tenant in possession. Landowners appear, at least if the cases and conveyancing form books are evidence of practice, to have been principally concerned with achieving the results of entails, and to have employed novel forms of estates in land that had the same effect: to curb the ability of successors to transfer land out of the line of succession in future generations.
With fair regularity, the courts struck down these ‘inventions’, forms of property conveyances that prevented successors from transferring their interests in a way that barred successive generations from coming into possession of the settled land. The initial focus that the courts took in considering these conveyances was on the legal mechanics of the settlement form crafted by the scriveners. Many settlement forms were disallowed. Because the imaginations of lawyers knew no bounds, the court abandoned the focus on form and turned to settling a policy against restraints on alienation over generations.Footnote 83 Once the principle that perpetual descent would not be permitted, regardless of the technique employed, the courts began to focus on the duration of the settlement. The ultimate result was the development of a rule against perpetuities which focused on the permissible time spans in which settlements could render land inalienable in the hands of a tenant in possession. By limiting restraints on alienation to 21 years past the death of persons living at the time of the settlement, the law set a permissible temporal measure of kinship depth: one could control alienability in the next generation, and perhaps in the one after that, depending on the age of the settler at the time of the settlement, and whether he had living grandchildren. The following generation came into possession of a transferable interest in the patrimony, unless a re-settlement occurred.
4(d). Property settlements after the Restoration
The tension between property law and the dynastic designs of landowners illustrated above did not dissolve with the demise of entails and imaginative perpetuities. While the length of time that family settlements could endure came to be fixed, thereby restraining successors from selling family land and therefore kinship depth in devolution strategies, another pattern of intergenerational transfer began to be developed. Land conveyances were devised that allowed families to turn to other matters. Attention turned to the distribution of wealth within the more limited kin group, the nuclear family. Focus on lengthy restraints on alienation over generations that characterized the previous centuries was replaced by a more narrow concern embraced by property owners: the distribution of property to those who did not come into possession of the landed estate, that is the settler's younger sons and daughters and the younger children of his successor. This transition can now be reviewed.
As we have seen, settlements from the later Middle Ages to the mid-seventeenth century created a very different priority of succession to land than did the canons of inheritance. According to primogeniture, land descended from a father to his eldest male offspring. If that son predeceased his father, leaving his own son, the property passed to that son's eldest son; should the eldest son die without issue, the next elder son would inherit and again, if he died leaving a son, the property passed similarly to that son's eldest son. If no lineal males were produced, the land passed to daughters as co-heirs. Inheritance law thus favoured the nuclear family – patrilineal depth – over breadth – because female lineal descendants excluded collateral males. In more plain terms, if the holder had no sons but one or more daughters, the daughters inherited the land, not a collateral male such as the holder's brother or the brother's male descendants. Of course, that pattern might be altered by settlement or will, and it was not uncommon for landowners to prefer collateral males over lineal females and their descendents. Even after the entail became a transferable interest (because the entail could be barred), a property holder could create an ‘estate in tail male’. While the interest was transferable by the tenant in possession, if it was not transferred the entailed land would pass to collateral males in preference to the holder's daughters.
A focus amongst historians on the descent of the patrimony to lineal or collateral males has eclipsed a broader consideration of property devolution after the Restoration, one taking into account the property holder's other familial responsibilities. In the course of the late seventeenth and eighteenth centuries, the family settlements of the peerage and gentry I have examined in detail demonstrate that fathers with daughters and with younger sons were unprepared to sacrifice the financial future of these so-called ‘surplus children’ in order to foster patrilineal descent.Footnote 84 Recall that neither primogeniture nor entail male were legal requirements: property holders could transfer lands (even land in which they held an estate in tail after they became barrable) to ‘surplus children’, or alienate some of their lands to provide cash portions for their male or female issue.
This they did. Here we once again observe directly the interplay between normative rules and inheritance law. There is no doubt that the imagination of landowners, particularly those in the English landed class in the early modern period, gazed far into the future. We have seen that entails male in settlements and wills were calculated to that end, but landowners also faced more immediate concerns than merely ensuring that a lineal descendant would be in possession of their estate for generations after them. There were the more pressing demands of the present generation for provision, and in particular the financial requirements of the individual landowner's children who were not fortunate enough to be heirs. The normative rule was that English children did not leave the parental home without a portion in some form: land, a cash portion for daughters, an apprenticeship in trade or the professions for sons. However, the legal form employed to accomplish the raising of cash to provide for them altered, and the change may reveal something about ‘kinship and the law’.Footnote 85
By the latter part of the seventeenth century, the practices of hiving off parcels of estates and transferring them to younger sons or of selling the same to raise cash portions for a son's preferment or a daughter's portion seem to have ended. Conveyancing practice, presumably in response to the designs of landowners (because it is, perhaps, safe to say that lawyers generally develop property transmission forms in response to the demands of their clients), integrated that process into the overall settlement of the estate. The pattern that developed reflected a different conception of the family and kinship relations than in previous regimes. In most of these so-called ‘strict family settlements’ – the conveyancing form widely adopted by the turn of the seventeenth century – cash sums to younger sons and daughters were provided as charges upon the heir male's estate.Footnote 86 In the settlement, terms of years were granted to the trustees to raise portions for younger sons and for daughters, and their term commenced before the estate was limited to the eldest son produced by the marriage, who was destined to come into possession of the estate. Therefore, in order for the heir to come into possession of his lands, he had to satisfy (or commit himself to pay) the portions prescribed in the settlement. As a practical matter, the male heir was frequently required to mortgage the estate to pay the portions prescribed.
This process of the circulation of portions amongst the landed class was discerned by Professor Sir John Habakkuk about four-score years ago.Footnote 87 According to Professor Habakkuk, a bride brought a portion into the family upon the heir's marriage, but the groom's own siblings were a charge upon his estate. Whether the portions were greater in magnitude than those created by the hiving off of chunks of the estate to younger sons and daughters that had occurred previously may be a matter of debate, though research suggests that the portions allocated to younger sons and daughters in settlements were not insubstantial.Footnote 88 The payment of the portions was more secure, however, and this practice bound siblings together, because the cash sum granted to the younger sons and daughters might be commuted to a yearly annuity out of estate income or provided by mortgaging family land. To the extent that heirs became responsible for their siblings' support, this familial grouping assumed greater direct relevance in the mind of the male heir than did his collateral male kin. In the settlements that developed in the eighteenth century, kinship depth – the wealth of future male holders, lineal or collateral – was sacrificed to furnish disbursements to members within the nuclear family. Indeed so great was the focus on the nuclear family that if the eldest son produced no male children but only daughters, a second round of limitations of terms to trustees to raise portions for daughters came into play, augmenting the portions for the heirless man's sisters. While the estate would pass to a collateral male, the value of the estate was significantly diminished by the costs incurred to defray both sets of charges; recall that statute reinforced the norm that daughters should be preferred to collateral males by providing trustees to preserve the contingent remainder in cases in which an ‘after-born’ daughter was the lineal descendant.Footnote 89
It is important to concede precisely what the strict settlement did not accomplish. There was little generational depth to the disposition. It endured for a fixed period: two generations at most. Usually, the settlement was created upon the marriage of the presumptive heir male, the eldest son. A life estate was limited to the eldest son (in part of the patrimony if one or both of his parents were alive, and substantially the entire estate if they were not), with a term of years limited in trust to raise portions for the bridegroom's younger brothers and sisters. The term was followed by an entail in the groom's eldest son and, should he predecease his father, to his own male heir or to his male siblings in tail in priority of birth. So while the bridegroom's male heir could alienate the estate when he came into possession of it upon the death of his father, he could not transfer the estate unless and until he undertook to pay the portions. Should no heir male be produced, the property would pass to the daughter or daughters or descend in tail male to the settler's collateral male heirs in tail, but with terms attached to augment the portions for the bridegroom's daughters.
In some families with robust life expectancy in the life tenant, a re-settlement would occur at the marriage of his eldest son (yet unborn at the time of the existing settlement if the settlement was made on marriage), upon whom the entail was settled. That eldest son had no possessory estate, and therefore no current income from the estate. To obtain a current income, he had to come to an arrangement with his father to resettle some of the patrimony held in life tenure by his father. Accordingly, the estate was re-settled; the presumptive male heir relinquished his entail for a present possessory life estate of part of the patrimony, to support his own family. Upon his father's death, the remaining life estate (with the exception of the jointure land limited to his mother in the previous generation's settlement) descended to him for life, but the portions in the existing settlement still governed provision for his own siblings. This process of re-settlement, if the demography cooperated (fathers living to the marriage of their eldest sons) could allow estates to pass in the patriline for generations, but continuity was in jeopardy in a succession in which it did not work (because at the father's death the heir male came into possession of the estate in tail which he could freely transfer). Yet even if a father lived to his eldest son's marriage, the estate's continuity was not ensured: father and son could join to sell some part of the patrimony at the time of re-settlement (again usually upon the male heir's marriage), particularly if the family was financially pressed, not infrequently due to the need to raise the portions mandated for younger sons and daughters.
With the widespread adoption of the strict settlement, the focus of landholders was no longer upon kinship depth, a link between land and family perpetually, but the understanding over property rights really only touched the lives of those alive at the time of the settlement and the next generation, as yet unborn. Indeed this conception of family continuity became embodied in the development of the rule against perpetuities in the course of the eighteenth century: a temporal limit to which a living individual could control the successors' property rights. The focus of strict settlements was on a narrower conception of kinship rights in land; provision for the nuclear family became the focus of concern rather than estate continuity in collateral males.
Finally, it should also be noted the degree to which an element of negotiation and reciprocity has entered into the fray. Fathers bargain with their eldest sons to trade entails which were alienable some time in the future when they became possessory, but which were future interests which yielded no income during his father's life estate; younger sons and daughters bargain with their elder brother on the most desirable course by which the portions mandated could be satisfied; mother and eldest son bargain over the jointure lands allotted in the settlement (or the payment of an annuity in lieu of land); a groom or his father tries to exact the largest possible portion from his bride's family, and the bride's father tries to get the largest jointure for his daughter's portion.
5. MARITAL PROPERTY ARRANGEMENTS
If, as argued above, a fundamental legal idea had emerged in England at least by the early modern period: that individuals could determine for themselves the extent to which kin had claims on their bounty. Moreover, sophisticated legal constructs were created to further it. This norm was facilitated during the period of the fifteenth through the eighteenth centuries by allowing free alienation and by the establishing and sanctioning of conveyancing forms that could accomplish it. This transition towards wider individual control over property also had effects on another area of property law: the marital property regime.
The origins of the present divide in marital property regimes between the one in force in those jurisdictions descended from the English legal system and those derived from continental European civil law systems is obscure. In pondering the origins of this distinction, Charles Donahue posited that these two areas of Europe developed along fundamentally different paths in the early Middle Ages.Footnote 90 As Donahue notes, during the medieval period England adopted the dower regime and France that of community property. To summarize briefly the distinction Donahue proffers, a surviving widow under the common law dower regime received a life interest in one-third of the real property her husband was seized of at any time during the marriage, their ‘coverture’, which would include any property inherited by the husband before or during the marriage. That property passed immediately to her, but upon her death her dower lands would pass to the heirs produced by the marriage, because the widow held only a life estate; should the couple not produce issue, the property would pass to the heirs of the husband. The reciprocal provision for widowers was called ‘curtesy’. Curtesy was both more limited and more expansive. It was more limited in that a widower was entitled to curtesy only if a live child was produced by the union, a condition not required for the widow to receive her dower. On the other hand, it was more expansive because he received her entire estate, rather than a third, for his lifetime.Footnote 91 The logic of curtesy was probably derived from another aspect of the marital property regime: recall that marital property law, through the legal doctine called coverture, already accorded a husband the control of his wife's property during the union. The significant feature of the English system was that after the death of a spouse according to both dower and curtesy, family land occupied for life by the suriving spouse returned to the side of the family, husband's or wife's, from whence it came. The French system, on the other hand, separated property acquired (acquests) during the marriage from property held prior to it and inherited during the union, allowing each party immediate rights to one-half of the acquests but no rights at all in ‘family lands’ (lands held at marriage or acquired during the marriage through inheritance). Because dower granted some rights in the family land of the other spouse, Donahue argued that the community property system protected family property to a greater extent than did the common law system; therefore, he argued, familial influence over married couples was probably greater in France than in England.Footnote 92 What the two systems, dower and community property, had in common was that family land returned to the lineal or collateral kin from whence it came. However, in England (but not in France) there was a potential gap in a patriline's control over family land, that period during which the holder of dower or curtesy held the family land of the deceased spouse.
Because dower attached to all lands and tenements held during a marriage, it rendered transferability of land problematic. Unless the wife specifically waived her dower right to a parcel of her husband's land that was sold during their marriage, she might claim her third in the transferred property even after her husband's death. Thus dower created uncertainty, a cloud on titles: in a sale by a married man, did the widow effectively waive her dower? Moreover, there was the tricky business of ‘admeasuring’ dower: calculating a third of each parcel of land that her husband had held at any time during the marriage.Footnote 93
Once again the art of the conveyancer altered England's fundamentally different system of spousal support. Dower came to be replaced by ‘jointure’, the legal term for parcels of land stipulated upon marriage to be held by a widow. By the late seventeenth century, a yearly income from the deceased husband's land (now in the hands of the male heir) that was also agreed to in advance, came to replace land. The effect of the replacement of jointure for dower meant that widows were no longer likely to receive any land, let alone ‘family land’, even for their lifetime. The separation of rights in real property between the spouses was therefore strengthened, particularly with respect to families. The heirs of each party succeeded to family lands free of the claim of the other party, but subject to monetary payments to the widow. As with sibling portions, jointure transformed the estate into a reservoir from which the widow could be furnished with an income. While the interests of future holders were not eliminated, some of the estate's economic value was transferred away from the patrilineal descendant. Likewise, the latitude now permitted for individual choice in both the amount of money allocated and the method employed to raise it must be stressed.
Finally, it should be noted that vestiges of these two systems still remain in modern law, indicating the ability of legal constructs to endure longer, perhaps, than the social-structural justifications for their creation. Their survival provides a salutary reminder as one considers the interrelation between law and kinship. For while descendants of the different marital property systems – the common law property systems and community property – coexist in different states within the United States, it is unlikely that family structure and family relations vary fundamentally between, say, California, a state that follows a variant of the continental community property system, and New York, which adheres to a modification of the English dower system.Footnote 94 Can one really posit a present-day distinction between these two states in their concepts of kinship rights in property?Footnote 95 Once established, legal constructs tend to acquire lives of their own, and may outlast the social-structural elements that may have led to its creation. Survival is less striking when the law provides a default rule, allowing those who choose not to follow it a simple means to opt out of the existing system.
6. FINANCIAL RESPONSIBILITY FOR DISTRESSED KIN
The issue of provision for the poor has been addressed above in the section which considered the statutory mandate that permitted custody of poor children to be removed from their mothers by Justices of the Peace, who were to bind over destitute children as apprentices. In this section, we return to this area of kinship and the law, a useful additional topic that explores the intersection between law and kinship, because it is removed from inheritance. It concerns obligations rather than rights. The central premise of the discussion is that the extent and the manner to which individuals are required by law to support needy family members is an indicator of the society's understanding of the strength (and the depth and breadth) of kinship relations.Footnote 96
Like marital property regimes, where a distinction endures between Anglo-American and European continental civil law regimes, there is a divide between the two in their provision for poor kin. The differences between English and continental practices will be explored here by reference to their progeny; the legal configurations and historical origins of the two civil law jurisdictions in the New World, Quebec and Louisiana, and of the American states whose juridical heritage is derived from English law.
Both Quebec and Louisiana have private law derived from the French Civil Code, and the filial piety section in Louisiana reads as follows:
Children are bound to maintain their father and mother and other ascendants,who are in need, and the relatives in the direct ascending line are likewise bound to maintain their needy descendants, this obligation being reciprocal.This reciprocal obligation is limited to life's basic necessities of food, clothing shelter, and health care, and arises only upon proof of inability to obtain these necessities by other means or from other sources.Footnote 97
Two points should be noted. The first is that the burdens and benefits are reciprocal, and flow directly from and to responsible and needy kin. The duty to support flows in both directions: needy adult children can also call upon their parents for assistance.Footnote 98 It is a personal one: the obligation is owed directly by and to the descendant, or by and to the ascendant, and each (descendant or ascendant) has a right to demand it and receive it. The second point is its location in the scheme of the legal order. That the obligation is enshrined in family law is pertinent. It may therefore, at least arguably, be linked to other principles of family law enshrined in the continental civil codes, and in their North American progeny. For example, a guiding principle of inheritance in the Civil Code is that of forced heirship, whereby a child, regardless of age, has a right to receive a certain portion of a deceased parent's estate.Footnote 99 Conceptually, there is congruence between the right of able-bodied descendants over the age of majority to inherit from ancestors (or, phrased the other way, the inability of parents to disinherit children), largely absent in ‘common law’ jurisdictions,Footnote 100 and those same descendants' obligations to maintain their ancestors should financial need arise. Whether the logical underpinnings of the reciprocal duties of support are biological, in that life is received from ascendants and spiritual life continues through descendants, or structural, in that closely related kin are enmeshed in networks and therefore have a duty of mutual assistance, or legal, in that family members have inchoate rights in the property of their kin, is a matter of debate amongst legal scholars.Footnote 101
By contrast, the English common law recognized no such obligation of filial piety. This understanding is set out in 1719 in the well-known case of Rex v. Munden, in which the deficiency was noted, as was its statutory corrective: while the ‘law of nature’ bound a man to ‘care’ for a parent, this obligation was not binding until the Elizabethan poor law established it to the extent required by the natural law.Footnote 102 The Elizabethan statute, though frequently revised, remained largely in force in England and Wales until after the Second World War, and provided that:
The father and grandfather, mother and grandmother, and children of every poor, old, blind, lame, and impotent person, or other poor person not able to work, being of sufficient ability shall at their own charges relieve and maintain every such poor person, in that manner, and according to that rate, as by the justice of that county where such sufficient persons dwell, or the greater number of them in their general Quarter Sessions shall be assessed …Footnote 103
Failure of a cited individual to abide by a support order subjected the defaulting relative to a fine of 20s. per month, a sum which could hardly be regarded as insubstantial in the Elizabethan age.
As drafted, the poor law provision differed from the subsequently adopted civil code mandate considered above in several respects. In the first place, instead of the principle of filial piety being enshrined in family law, as in continental civil codes, there was a quasi-criminal cast to the statute: failure to pay the demanded sum led to a fine. Secondly, there was a significant difference between the legal structures of the obligation in England and on the continent. Under the civil codes, a poor individual could request payments and, if these were not forthcoming, could compel an ascendant or descendant to furnish support by commencing a legal action. In England, parishes were responsible for the maintenance of their own poor, but could shift the burden to a relation of the poor individual by an action of the Justices of the Peace. When one or more of the Justices of the Peace in the distressed person's parish determined that the individual was in need of poor relief, they could issue an order demanding support from a specified relation if that relative was deemed able to contribute. Thus the legal obligation of the parish to relieve was transferred to a relative.
So the juridical structure of the two approaches varied considerably, leading the comparitivist (a role we have assumed) to ponder the historical origins of each provision. Beginning on the continent, while commentators have suggested that this section of the Civil Code is derived from Roman law, evidence of the obligation in Rome is patchy at best. Specific references to the obligation to support needy relations are hard to come by in any source out of the three that inspired the modern civil law: the Roman law, the canon law, and the Germanic codes. Scholars of Roman law assert that there was a mutual liability between father and child for support, an obligation, instituted by Ordinance in the second century.Footnote 104 The specific authority to which reference is made, sections of the Code of Justinian,Footnote 105 do mention such an obligation, but there is little evidence in other sources of its enforcement. The requirement of maintenance appears in Roman family law. In particular, it is found within the context of a relaxing of parental power, patria potestas, in the second century, and the recognition that legal actions between a father and his child could thereafter be instituted. Prior to this alteration, the issue of filial support could not be raised because, at least theoretically, a child could not own property independently of his father regardless of the former's age. Thus there was, again at least hypothetically, little need for the imposition of this mutual obligation: if the child was within the potesta or family authority of his father,Footnote 106 the child owned no property independently of his father with which to support the latter. Yet even before the recasting of patria potestas, support issues might be raised: a son might be ‘mancipated’, freed from paternal control, and a daughter could be married. In either case, patria potestas would have been brought to an end. The child might therefore then hold property independent of his or her father, and thereby be in a position to render assistance should the father be needy. Moreover, the application of the principle has been questioned; it has been suggested that patria potestas may have been more a statement of patriarchal principle than a legal concept rigorously applied.Footnote 107 Thus, even before the second century, occasions might have arisen in which adult children did indeed own property independently of their fathers. How frequently maintenance was demanded or ordered either before or after the reforms of the second century remains a mystery. But it is telling that neither the Institutes nor the Digest, redactions of Roman law in the sixth century, mentions the obligation.Footnote 108
A more comprehensive search of Roman law sources might uncover more persuasive authority for the existence of filial piety amongst the ancients. A similar cursory enquiry into canon law, another source of the modern civil law, is likewise unsatisfying.Footnote 109 One might speculate that to ‘honour thy father and mother’ would include relieving them if they were in poverty, but explicit statements in canon law on actual filial obligations are not found in, for example, the Decretals. Canon law does not address support obligations of parents; the focus of parental duty in canon law was upon spiritual concerns, for example the obligation to have children baptised, and to offer them a proper religious upbringing.Footnote 110 While moral theologians may have had something to say about the reciprocal obligations to maintain parents and children, and indeed the proper treatment of the poor in general, the canon law is silent.Footnote 111
Turning from the Roman and the canon law to the third source of the modern civil law, Germanic customary law, little evidence of an obligation to support needy parents can be found therein. This absence is not surprising. Germanic society was organized through kin groups; sons remained in the same group as their father even after marriage, so the issue of support, as in Roman law and social structure, was unlikely to arise. Daughters generally were transferred to their husband's kin group; arguably in this context, the issue of filial support might be raised.Footnote 112 But if a daughter's link with her kin group of birth was terminated or transferred to that of her husband at marriage, then the issue of filial piety could not conceptually arise. Research undertaken in the extant Germanic codes has uncovered no evidence in them of a formal obligation to support needy relatives.Footnote 113
The origin of such an obligation to support relatives in need in English law is perhaps more clearly discerned than in the civil law: it emanates from the statute cited above. Yet the statutory mandate to permit relatives to be charged does not mean that the burden was actually shifted from the parish to the family with any degree of frequency. David Thomson noted little evidence in the poor law records to suggest that children were actually held by parish officers and magistrates to their legal duty of providing for their needy ancestors.Footnote 114 More extensive search might uncover rigorous enforcement elsewhere. Yet the duty was owed to the parish and not directly to the relation, and because the means of enforcing the obligation was cumbersome, a child so inclined might try to evade his or her obligation.Footnote 115 Indeed there is little discussion of the actual mechanics of enforcement of the obligation in manuals written for Justices of the Peace. For example, Michael Dalton's popular book devotes only nine pages to poor law enforcement, and addresses filial piety by merely reciting the provision, a surprising omission if seeking kin support was frequent.Footnote 116 Moreover, in the course of the eighteenth century courts narrowed the applicability of the obligation of filial piety outlined in the poor law: there was no duty to in-laws, so a married daughter was not responsible because her property was deemed to be that of her husband; grandchildren were not required to support their grandparents; a child might not be required to house a needy parent in his home; the parent's destitution had to be proved before magistrates; and the child had to be shown to be able to shoulder the burden.Footnote 117 Finally, attempts to enforce the obligation after the poor law reform in 1834 were largely rebuffed by magistrates, and it was not until the last quarter of the century that a consensus emerged to enforce the filial piety obligation.Footnote 118 Indeed, some commentators perceived the shortcomings of the act. Poor law reformers in the 1890s recognized (consciously or otherwise) the efficiency of the civil law approach. Enabling a needy parent to sue his progeny directly as could occur on the continent, it was argued, would lead to a more efficient enforcement of obligations, but the notion was never instituted.Footnote 119
What has been uncovered in this comparative exercise is the straightforward proposition that the two major legal systems, the continental and the English, developed two different approaches to structuring filial responsibility. Continental and North American civil codes worked out the obligation through their family law. Unlike this pattern, the English model did not create a direct duty between individuals that required relations to care for their distressed kin directly. Through the poor law, the state both recognized its obligation and then shifted its burden to provide support of its distressed citizens to specified relations. Perhaps this distinction reveals something meaningful about perceptions of obligations arising from kinship relations.
7. CONCLUSION
This preliminary exercise on relating law and kinship illustrates that the law intersected with kinship relations in early modern England in the three areas explored: inheritance, marital property, and support for distressed kin. It also demonstrates that considerable latitude was bestowed on property owners, real and personal, to dispose of their property by will or settlement to kin or non-kin, as they pleased. Positive law provided a backstop: default rules of inheritance which enforced a hierarchy of kin and which limited the marital property rights of the surviving spouse. Disinheritance of kin was always a possibility, but settlements came to deal with inheritance and marital property issues in advance, leaving the parties to iron out the terms individually, taking into account particular circumstances. By the seventeenth century, marriage settlements frequently came to resolve the distribution of family property a generation in advance. These property settlements placed more focus on providing for the nuclear family in the current generation and the next than upon promoting the more grandiose medieval design of patrilineal continuity, particularly because daughters without brothers were often preferred to collateral male heirs.
Individual action in dealing with kin was facilitated because Parliament intervened only rarely in kinship matters. Statutes dealing with kinship were sparse in number, and the kinship universe they addressed was very limited in both depth and breadth. Support for the poor was only demanded from lineal descendants (children) and ascendants (parents and grandparents), and those liable to provide it narrowed rather than expanded over time. Intestacy statutes created a priority based upon closeness to the deceased, with the more remote excluded by those closer in degree. Perhaps more depth and breadth of kinship connection could have been written into the statutes, as they sometimes were, for example, when more remote kin claimed administration of an intestate estate. In the main, however, Parliament did not seem to be concerned with fostering kinship ties beyond a very limited group: fostering kinship solidarity was not a part of the agenda of early modern Parliaments.
ACKNOWLEDGEMENTS
A sketch of this article was presented in Cambridge at the Ellen McArthur Fund workshop ‘Kinship in Britain and Beyond 500–2000’, 25–6 July 2005. I am grateful to the organizers, Naomi Tadmor and Richard Smith, for the comments on the presentation and earlier drafts. My fellow editors, Eilidh Garrett and Richard Wall, nobly struggled with the difficulties inherent in broaching the divide between law and social history. Any confusion that remains is my sole responsibility.
