Properties of Blood I:8, Spouses and Heirs Part D

In Celtic and Anglo-Saxon England, inheritance rules were fairly loose, and fathers could and did divide their property among their children.  The Norman Conquest changed the situation and first sons came to be privileged, not because the invading Normans had a long tradition of primogeniture: In much of Normandy, they did not.  It was largely the circumstances of the Conquest itself and William’s policy that caused the feudal revolution in England.  (On the continent, at almost the same time, longstanding feudal traditions were being stiffened and organized by Emperor Frederick Barbarossa.)  To oversimplify a complicated legal evolution, the Normans in France and in England—for some time following the conquest—distinguished between property held on military tenure and property held on civil terms.  In the latter case, the property-holder had the right to bequeath the property according to his desire, but, if he held it on military terms, it had to pass down to his eldest son, who also inherited the obligation to provide military service to the liege lord from whom the property was received.  The necessity for such a connection between property and military service—the essence of feudalism—was most obvious in the case of noble and royal titles, though it took some time for it to have the force of law.  William I, apparently, was able to distinguish between his inherited title and property as Duke of Normandy, which he had to pass on to his son Robert, and conquered England, which he was free to leave to his second son William Rufus.

While primogeniture may have been increasingly the norm for inheriting estates by Henry II’s time, the principle was ignored when the barons preferred the claim of Henry’s youngest son John to the claim of his deceased older brother Geoffrey’s son, Arthur of Brittany.  (John, was of course, the  unpopular ruler who sparked the barons’ revolt that led to the drafting of Magna Carta. Under Norman succession rules, John was the appropriate choice, while under Angevin rules—the father of Richard and John was son and heir to Geoffrey “le bel” Plantagent of Anjou—Arthur was the heir.  The point became moot, when the unfortunate Arthur fell into John’s hands and disappeared from history.   

Feudalism was never a static system but a constant ebb and flow of power among contesting parties: Kings and Emperors naturally strove to emphasize the contingency of granted lands on service.  When the central authority was strong, rulers might declare that an inheritance depended on fulfillment of duties and even on the will of the sovereign. Their barons, while doing their best to make their properties automatically pass to their heirs, insisted on their own authority over lands granted to their own men, whether lords or knights.

In English law, as it developed, primogeniture, basically, could work two ways.  If a man died intestate, his estate—down to a fairly trivial level of household articles—went in its entirety to his eldest son.  However, a well-to-do man could also make a will, in which he either restricted or strengthened the rights of his first-born son by a process known as entailment.

In the early days, a tenant could sell property in his own lifetime, thus depriving his heir of part of the estate and his lord of his feudal dues, though this loophole was eventually eliminated.  The duties of military service, which became an anachronism by the 17th century, were swept away, a process of erosion that eventually made primogeniture a legal nullity.  Nonetheless, it lived on as a device used by property-holders to preserve their estates by entail or fee tail or foedum talliatum.  A fee, fief, or foedum is the right to the use of a property, and a foedum talliatum—a “cut fee”—restricts that right by stipulating that the property be passed on to the owner’s “heirs of his body.”  Such a stipulation frequently included primogeniture.  The custom of primogeniture, in other words, continued in strength even as the law was falling into abeyance.

The purpose of entailed primogeniture was the perpetuation of the family’s property, wealth, and social position:

The estate was the foundation, not only of the family’s prosperity, but also of its social status and political influence, and as such it had to be transmitted undivided and, ideally, improved or at least undiminished from one generation to the next, according to the lineal order of succession established in the entail.

While it was possible to convey an estate by means of a “tail general” that included female descendants, the “tail male”, restricting succession to males, was more common.  More than one English novel, e.g. Pride and Prejudice, turns on the exclusion of daughters from the succession.  However, the category of the disinherited included not only daughters but younger sons.  From the ancient Greek or modern American points of view, such exclusions—whatever the objective—were patently unfair.  They did, nonetheless, end many an enterprising younger son into useful careers in the military, in the Church, or in commerce.

Loving fathers, whatever the law or family interest may dictate, do not wish to leave their daughters or younger sons destitute, and a variety of legal instruments, such as fee simple possession (a non-feudal form of property right) and gifts in marriage to a person and his/her heirs, were devised to enable a father (eventually) to transfer a heritable estate to daughters and younger sons.  Love will, as the saying goes, find a way even among the rich and great.  Less fortunate families tend to be less interested in preserving estates they do not have than in helping the children of all their children.  In the fourteenth-century, peasants, when primogeniture laws were in full force among the gentry, did not have to worry about discharging feudal obligations, and they made strict provisions for the rights of widows and younger children.

The more ruthless aspects of primogeniture and entail were gradually curbed by recourse to such principles as gavelkind, a complex Anglo-Saxon legal tradition that enabled a man to leave his lands to whomever he liked and, where there was no will, portioned out the property equally among his sons.  In British law, gavelkind survived in cases of intestate succession, that is, where the deceased had made no will and, where an estate was supposed to descend intact, it became possible for a daughter, if she were the only child, to inherit.  In cases of intestacy in colonial America, however, surviving wives typically enjoyed a life-interest in the estate, and children inherited equal shares.  As societies change, people find moderate measure by which they can “work around” the obstacles presented by laws and traditions that have outlived, at least in some aspects, their usefulness.  More radical measures, inevitably presented as necessary reforms, often have unanticipated consequences.

Disentangling the Individual

Just as there is no one ideal form of government, there is no ideal structure of kinship and inheritance.  The law must always be adapted to changing circumstances, and the rule of primogeniture had lost most of its feudal significance in England before the end of the 17th century and never had any in America.  Nonetheless, Thomas Jefferson worked relentlessly to undo whatever vestiges of the custom remained.  Jefferson’s argument, summarized in the sentence “the earth belongs to the living, not to the dead,” was aimed at liberating property from the constraints imposed by ancestors, and it enabled a current holder to treat both ancestors and descendants with contempt.

Jefferson, although he was no enemy of family tradition or inherited rank, makes his position explicit in a letter to James Madison: "I set out on this ground which I suppose to be self-evident: 'That the earth belongs in usufruct to the living;' that the dead have neither powers nor rights over it... We seem not to have perceived that by the law of nature, one generation is to another as one independent nation to another."  When no one has perceived a law of nature on a highly significant point, perhaps it is because property is not theft, men are not born equal, and one generation is not independent of another.

Jefferson believed that the current generation had the right and freedom to dispose of their property and to alter their constitution.

"The laws of civil society indeed for the encouragement of industry, give the property of the parent to his family on his death, and in most civilized countries permit him even to give it, by testament, to whom he pleases.  And it is also found more convenient to suffer the laws of our predecessors to stand on our implied assent, as if positively re-enacted, until the existing majority positively repeals them. But this does not lessen the right of that majority to repeal whenever a change of circumstances or of will calls for it. Habit alone confounds what is civil practice with natural right.”

Jefferson led the successful campaign to end both entail and primogeniture in Virginia, and Alexis de Tocqueville, the French aristocrat who came to the infant United States to see if democracy could possibly work, grasped Jefferson’s point: The elimination of large estates was conducive to democratic equality in America.  The snake in the pretty grass of Jefferson’s social revolution is the tendency to detach a current possessor from the entangling network of family ties.  This effect would not have pleased Jefferson, a man solidly enmeshed in a complex network of kinship that connected him to nearly every family of note in Virginia.

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Thomas Fleming

Thomas Fleming is president of the Fleming Foundation. He is the author of six books, including The Morality of Everyday Life and The Politics of Human Nature, as well as many articles and columns for newspapers, magazines,and learned journals. He holds a Ph.D. in Classics from the University of North Carolina, Chapel Hill and a B.A. in Greek from the College of Charleston. He served as editor of Chronicles: a Magazine of American Culture from 1984 to 2015 and president of The Rockford Institute from 1997-2014. In a previous life he taught classics at several colleges and served as a school headmaster in South Carolina

4 Responses

  1. Clyde Wilson says:

    Jefferson’s point about the earth belonging to the living was primarily a moral statement against DEBT, especially government debt. As John Taylor amplified: the present generation taxes and enslaves itself on the delusion that it is taxing posterity for present benefit.

  2. Robert Reavis says:

    Dr. Wilson,
    Your post reminded me of the difference between ourselves and our posterity. Isn’t it is a paradox that the loss of respect for our dead, precedes the loss of respect for our posterity?

  3. Avatar photo Thomas Fleming says:

    Jefferson, indeed, was making a moral statement against debt, but it is equally true that he used similar arguments in his campaign against entailment and primogeniture. I am not sure it is a terribly original argument. Locke’s treatment of marriage, family, and property has a similar emphasis on the individuals of the current generation. Because this piece was getting a bit long for a website, I paused the text in medias res.

  4. Andrew G Van Sant says:

    It would seem to be fair for the government to immediately take about $61,500 from every man, woman, and child in the United States to pay off our debt of about $20 Trillion so it is not passed on to future generations.n