Question about inheritance laws in 18th century England

Well, according to the Official Roll of the Baronetage, you are correct that those terms were the ones set by James I. He was a very greedy bastard--in 1610, most peers would have been hard pressed to show an annual income of one thousand pounds, and to pay for the support of 30 soldiers for three years. To put that in perspective, a skilled worker, such as a journeyman in one of the trades, living in London (the most expensive place to live in England) would have been fortunate to earn six pence a day--three shillings a week, which is seven pounds, sixteen shillings per annum. So, you can see how enormous a sum a thousand pounds would have been.

One distinction which works very well into your story is that baronets were not technically peers--they remained commoners, and ranked above all knights, except Knights of the Order of the Garter.

Yes, Sir Walter Elliot is the only one I can think of specifically at the moment too, but I could swear that if not in one of Jane Austen's novels then in some other of around the same time (possibly later into the 19th C) there is a conversation in which some gentry (not too wealthy themselves, but of high birth) are bemoaning the fact that nouveau riche baronets are cropping up left and right. I'll have to see if I can remember what that was.

That would be plausible. Baronets were commoners, and i suspect that the more impoverished a peer and his dependents were, the more they were likely to resent and sneer at the merely wealthy.

> Well, according to the Official Roll of the Baronetage, you are correct that those terms were the ones set by James I. He was a very greedy bastard--in 1610, most peers would have been hard pressed to show an annual income of one thousand pounds, and to pay for the support of 30 soldiers for three years. To put that in perspective, a skilled worker, such as a journeyman in one of the trades, living in London (the most expensive place to live in England) would have been fortunate to earn six pence a day--three shillings a week, which is seven pounds, sixteen shillings per annum. So, you can see how enormous a sum a thousand pounds would have been.

> One distinction which works very well into your story is that baronets were not technically peers--they remained commoners, and ranked above all knights, except Knights of the Order of the Garter.

Nice comparison to put the money into perspective! And yes, the commoner distinction works right into the story...

In his posts, Setanta is largely correct, so I'll just add a few comments:

In Britain, a baronetcy was created through a royal patent. The patent would include the conditions under which it was granted, including the conditions under which the title was heritable. For instance, there is a big difference if the title was granted to the recipient "and his heirs" or to the recipient "and the heirs of his body." In the first case, the title could be inherited by collateral heirs; in the latter, it could only be inherited by lineal descendants.

Because it was a royal grant, it was always possible to alter the terms of the patent. It didn't happen often, but it happened. Before the Hanoverian Succession, I imagine that it was simply a matter of the king granting a new patent. I'm not sure if it such changes took an act of parliament later on -- Set says that it was necessary in the case of the duke of Marlborough, and I have no reason to doubt him.


As Set pointed out, these types of noble estates were often entailed -- a lawyer would say that the title-holder held the estate "in fee tail." The terms of the entailment were, again, set out in some formal document (if the land was granted by the crown along with the title, then the terms might be included in the royal patent). They could be as restrictive or lax as the creator wanted.

I would also add that it would not be inconceivable for a person to be raised to a baronetcy solely on the basis of his fabulous wealth. The old notion that the aristocracy was closed to newcomers is unsustainable in light of the data that historians have mined over the last half-century. Although it might have been unusual in the 18th century, it wasn't unheard of, and it became something of a joke in the nineteenth century. W.S. Gilbert, of Gilbert & Sullivan, complained about "beer barons" -- the owners of breweries or other industries who were raised to the peerage. In Ruddigore, Gilbert also poked fun at the literary convention that portrayed baronets as stock villains. In America, we used landlords instead.

Thank you, Joe from Chicago! This is wonderful - from your reply and Setanta's I am getting a very good idea of the legal issues surrounding my baronet and his title/estate. Actually he's not a villain, but rather an amiable blustering man prone to grandiosity (like designing his own coat of arms and emblazoning it on his gates, and building a classical mausoleum and gloriette on his property). It's good to know that the terms of the entail are specific to the individual baronetcy. And also the point about land being granted by the Crown along with the title. That adds an interesting element...

A baronet would be required to have a coat of arms, if his family didn't already have one. The appropriate College of Arms would be responsible for granting the coat of arms, although the individual would likely design it.

THANKS! Good to know!

A congratulatory note to Setanta ... I, too, am doing some research for a historical novel and came across your reply to the person who posed the question. I must say I've learnt more from your answer than I have done from researching that particular topic on the web this last week. Can I ask you to specify your area of expertise? You keep hoping for an expert on the topic to materialise on this forum but your knowledge seems quite extensive. I was hoping for an answer to a question of my own but I'm not a member of this Forum and I'm not sure how to re-access it once I pose my question. :-)

All right . . . in the first place, when you registered, you had to give an e-mail address, and you should receive an e-mail notice that someone has posted to any thread you have posted in, unless you have turned that feature off (i believe it's the default setting). In the second place, the fact that you've posted here is evidence that you are already a member of this forum--there's nothing else that makes you a member, so you are one.

There's nothing i can do to make sure you come back here--however, if you receive the e-mail notification, you should find your way back. At university, i had a double major in history and English language literature. I have a life-long interest in systems of governance, particularly with reference to the United States. The United States is actually rather easy, as only an handful of systems have been used, and they've been repeated in just about every state. (For example, the Massachusetts Bay Company--a royal chartered monopoly--set up a system of governance with a Governor, Lt. Governor and selectmen, which was actually the 17th century equivalent of a corporate board. John Winthrop physically took the charter document to Massachusetts with him in 1630, as the Puritans attempted to escape royal authority. It worked, and especially after civil war broke out in 1640. This form of government, mirrored in mayor and selectmen in the townships of New England, has been repeated in many, many states in the United States.) So much of the heritage of law and governance is derived from English sources, that one can only understand them by learning about the history of England.

There are notable exceptions. North Carolina was colonized largely by Scots-Irish crofters, and Huguenot religious refugees. Even though they've adopted the mayor and council form of government, they still use a magistrate system for petty courts and arraignments. New Mexico still has a mayoral system (the mirror of an alcalde) with the mayor appointing the other township officers, and a magistrate system for petty courts and arraignments. Both are survivals of the magistracy systems of the Catholic countries from which the early colonists derived. New Mexico has somewhat of a split pesonality, because parts of it were settled by Protestants from the United States after we stole it from Mexico--while the rest of it retained its original Spanish character.

To understand the European world of the western hemisphere (and the nations of North and South America are essentially European), one needs to understand the histories and cultures of the European nations. It only happens that working "backward" from American history, i've studied English history (and the history of England's Welsh, Scots and Irish victims) more that the history of any other European nation. I would caution you that i don't call myself an historian, but rather a student of history. I am well-informed, but am also willing to bow to expert opinion when offered. You will see in this thread, for example, the expertise which JoefromChicago provided on legal matters.

Whatever questions you have, if you wend your way back here, the probability is high that someone here can give you reliable answers. For an outline (and an outline only) of English history, i recommend George Macaulay Trevelyan's A Shortened History of England (1917). For somewhat more detail, and a good deal of shameless gossip, i recommend Winston Spencer Churchill's History of the English Speaking Peoples, in four volumes (1956-58). Otherwise, and especially in particular matters such as law, it's necessary to look for specialists, or to have read them. There are, literally, thousands (perhaps tens of thousands) of worthwhile books about life in England, and the culture, law, religion and other similar foolishness available. I'll be happy to help where i can, as i'm sure others here will be. Biography helps, too--you can't tell the players without a score card.

Yes, I did figure a way of becoming a member of this forum. But, no, I wasn't advised by email notice that I got your reply. Luckily, I found my way back by accident through further research, and yet again, your expertise brought me round full circle. :-)

Thank you very much for your lengthy reply. It confirmed my earlier opinion that whether or not you consider yourself an historical expert, you most definitely are very knowledgeable in your subject. A researcher usually needs to find the right thread to put her on the right track, so if the information you give can lead me to that end, I am duly satisfied with the expertise. I am European and hail from a country that was colonised by the British, yet, I'm still finding difficulty in resolving my dilemma.

My issue is both historical as well as legal. If you and others can give me the benefit of your expertise, I would be most grateful. I have done extensive research on English Land Laws and peerage inheritance but I still haven't been able to verify a very significant issue. The English land laws are very complex and they've been reformed over the centuries by various statutes, the contents of which are much too complicated for a lay person to unravel.

So far I have established through my research that an estate granted to a peer as a "fee tail" (following the Statute of De Donis Conditionalibus) could then be barred (or recovered) via the 'fictitious' Common Recovery devise to "fee simple absolute", meaning that the property is now fully owned by the peer without restrictions. Ergo, I assume, that the peer is now able to alienate (sell or bequeath his estate via a will to whomever he wishes, even to an illegitimate son).

However, (and here's my confusion), I also discovered that estates granted by the Crown for Knight-Service (which ought to be the original purpose as to how the peer would have come into possession of the estate), cannot be barred, i.e. they would not have been able to use the Common Recovery procedure to barr the entail from the primogeniture rule. If a "fee tail" cannot be barred, then it cannot be converted to "fee simple absolute"!

My question is therefore this: Is it possible for a peer to own an estate in his own right as "fee simple absolute in possession"? And if so, how can such an estate originate? Can it originate as an estate granted by the Crown to an ancestor, yet still be owned by the subsequent heirs centuries later? As far as I can tell, there are no allodial rights in England; the highest form of freehold property can only be "fee simple absolute", which technically means that it still ultimately belongs to the crown. So in what particular cases does the Crown become entitled to "reversion" and which cases do not come attached with this requirement?

For your further information, my case concerns an illegitimate son of a peer (I haven't as yet established how high in rank this peer is going to be, so I am open to suggestions or recommendations). This peer has a legitimate son from his lawful wedded wife, and an elder bastard son from a previous inconsequential liaison. The peer wants to by-pass the legitimate son in favour of the illegitimate one through his will.

Furthermore, I am aware that a title cannot, under British Law, be bequeathed to anyone other than the legitimate heir. However, is there a possibility for the reigning sovereign to create a title of some sort and, if so, for what reason can this be done and how?

The time-line of my story hasn't as yet been set but it will be circa 1800 to 1850.

Thank you in anticipation of your kindly advice. :-)

I have been following your postings on this thread and hope to get your expert legal view for my last posting in reply to Setanta's further below. Setanta recommended you to me as being knowledgeable on legal matters. I'm hoping that your feedback together with Setanta's could unravel my dilemma. Thank you.

Hello, SimoneZE. I'll try to help, but English common-law property rights are a bit outside of the area of my expertise.


I believe that is correct. A piece of property in fee simple absolute is freely alienable.


OK, I'll go along with that.


Well, I'm not sure "fee simple absolute in possession" is the correct technical term. A peer could always own property in fee simple absolute just by buying or inheriting some property that wasn't entailed. There was plenty of that in England, even in the early nineteenth century. So, for instance, if Lord X bought a townhouse from Mr. Y, the lord would hold that property in fee simple absolute. On the other hand, if Lord A inherited stately X Manor from his father, he would probably hold that property in fee tail.


It all depends on the language of the royal grant.


Yes, I believe all allodial title was abolished at the time of the Conquest.


Land would revert (or escheat) to the crown pursuant to the terms of the grant. For instance, if the grant was to the recipient "and the heirs of his body," then the land would revert to the crown if and when the last lineal descendant of the original recipient died out.


Of course, if the peer's property is held in fee tail, then his hands are tied -- he can only give that property to his heir. On the other hand, if he holds property that isn't entailed (and I imagine that most wealthy peers held land that was both entailed and non-entailed), then he could leave that to whomever he liked, with some exceptions. In particular, the widow would normally be entitled to dower, which usually amounted to one-third of the estate. That might come in the form of a life estate in property or in a cash settlement or some combination of those. So, for instance, if Lord X dies, Lord X's legitimate son, Lord Z, inherits the title and the entailed land. The dowager Lady X receives a substantial cash sum and a life interest in the London townhouse, while Bastard X gets whatever is left over.


Well, the title can't be bequeathed to anyone. It is not within the title-holder's power to bequeath.

The sovereign could create a title for a deserving bastard, the same as for any other deserving commoner. Military or governmental service, immense wealth, kissing the royal backside -- there are numerous reasons for handing out titles. During the Reform Act crisis, there was a threat to create peerages in order to break the deadlock created by the House of Peers -- a threat that was made at other times in British history as well.

A couple of things about bastards. In England, since a bastard wouldn't bear his father's last name, he or she would typically receive a last name that combined Fitz- with the father's first name. So, if Lord Gerald Noble had a bastard son, John, the son would be named John Fitzgerald, not John Noble. Or else Fitz- would be added to the father's title. In your time period, there were a bunch of FitzClarences running around, all of them fathered by King William IV when he was Duke of Clarence.

Secondly, there's a widely held notion that, if a bastard was granted a coat of arms, he could bear his father's arms but it had to be distinguished by a bar sinister (or, more accurately, a baton sinister). That is a myth, although there are examples in history of bastards bearing arms that are distinguished with the baton sinister.

Joe has good points about hereditary titles. They could only be granted by the Crown, and the grant could only be modified by act of Parliament, as in the case of the Duchy of Marlborough. The first Duke of Marlborough was pre-deceased by his one son who reached adulthood. His title was passed to one of his daughters by act of Parliament, and then the title descended "in the right line" from there, as provided in the act.

Most "reversions" as you call them took place because there was no heir in the right line. Regardless of what provisions a testator might make for his own property, land held of the Crown could only descend in the right line, and the extinction of a family in the central male line meant that any such estates reverted to the Crown. The extinction of a right line of the peerage was not that uncommon--mortality was more certain than legal descent until the 20th century. Extraordinary events had extraordinary results, too. During the civil war between Stephen of Blois and Maud the Empress (then popularly known as "the Anarchy"), both sides dispossessed several families of the peerage as their own fortunes waxed. Re-establishing claims after the other side became ascendant was a problem. After the accession of Maud's son, Henry II, most claims to illegally attaindered estates were denied--after all, they gave Henry a good deal of scope for patronage.

During the Monfort rebellion in the 13th century, the result of the settlement brokered by the Papal Legate and the King of France, especially after the defeat of Monfort and his death, voided a great many estates of the peerage. Most of them were not recovered, and, once again, the estates became available for royal patronage.

The Wars of the Roses were arguably the biggest disaster for the peerage. Fully half of all families of the peerage were extinguished in the direct male line (the "right line"). This became an important source of patronage for Henry Tudor, King Henry VII. Additionally, with the seizure of ecclesiatic properties by Henry VIII, a great many new estates could be sold or created for the political machinations of the King.

When estates of the commons were in disupute, they would very likely end up in Chancery. However, when an estate of the peerage was inherited by a minor, or a widow, or if there were a dispute about the succession of a line of the peerage, it went to a special cour, the Court of Wards and Liveries. In that court, the estates would be administered by an officer of the court (i.e., and accredited lawyer), more to the benefit of the crown than the heritors. If the Court of Wards and Liveries determined that the possessor of an estate were not a legitimate heritor in the right line, the most common judgement was that it reverted to the crown.

Those here who like this stuff would probably enjoy "The King's Speech", a film we saw this week.
An interesting period in history. Timothy Spall was great in a cameo role as Winston Churchill.

QUOTE: Well, I'm not sure "fee simple absolute in possession" is the correct technical term. A peer could always own property in fee simple absolute just by buying or inheriting some property that wasn't entailed. There was plenty of that in England, even in the early nineteenth century. So, for instance, if Lord X bought a townhouse from Mr. Y, the lord would hold that property in fee simple absolute. On the other hand, if Lord A inherited stately X Manor from his father, he would probably hold that property in fee tail. UNQUOTE

Thank you very much, Joe. This has clarified ALL to me! I established yesterday through further research that fee simple peerages are the earliest known. That was the ordinary limitation of an earldom in the reign of Stephen, and was probably in use from the Conquest. From the time of Edward II., however, grants in fee tail general and in tail male became a common form, which gradually superseded fee simple, and from the time of Henry VI. to the present day grants in tail male have almost entirely superseded the earlier forms of limitations. Moreover, I also found out from some legal documents that a noble peer siesed in fee of a peerage takes an estate to him and his heirs male by Parliament so long as the male line continues.

All of this has clarified a very salient point ... that an ordinary fee simple is not the same as a fee simple granted by the Crown, and that the latter would escheat back to the Crown in lieu of heirs to the peerage as well as the estate attached to it. Is this correct?

Your other suggestions further clarified to me how to go about laying down the conditions of my Peer's will in view of the restrictions posed by entails.

QUOTE: The sovereign could create a title for a deserving bastard, the same as for any other deserving commoner. Military or governmental service, immense wealth, kissing the royal backside -- there are numerous reasons for handing out titles. During the Reform Act crisis, there was a threat to create peerages in order to break the deadlock created by the House of Peers -- a threat that was made at other times in British history as well. UNQUOTE

One further question, if I may, about your above suggestion ... since the Reform Act crisis apparently inspired the creation of peers for the purpose of political involvement and a vote in the House of Lords to strengthen the opposition over the House of Commons, what kind of Peer would the Prince Regent have created? And quite apart from these political machinations, could there have been other peers of lower rank who would not have been called to perform this duty? I read somewhere that 'naked' peers were actually created at some point, i.e. hereditable titles that did not come with gifts of property. I am seeking the kind of title that doesn't carry parliamentary responsibilies; a kind of gift elicited from the sovereign, perhaps, by my fictitious Peer through his connections and/or wealth. Would this have been possible during the reign of the Prince Regent or Queen Victoria?

QUOTE: A couple of things about bastards. In England, since a bastard wouldn't bear his father's last name, he or she would typically receive a last name that combined Fitz- with the father's first name. So, if Lord Gerald Noble had a bastard son, John, the son would be named John Fitzgerald, not John Noble. Or else Fitz- would be added to the father's title. In your time period, there were a bunch of FitzClarences running around, all of them fathered by King William IV when he was Duke of Clarence. UNQUOTE

The above information is most relevant to my purpose as well. Would this name change have been done through a legal process that I can look up please? I did find some allusions in my research about illegitimate issue taking on the name of the father, but it was the actual surname not with the Fitz- attachment. I imagine that it may have taken the form of an adult adoption, but I couldn't find anything firm on this during the period in question. It seems that adult adoption did not occur until recent times. Seems to me that the Fitz- option would be a good alternative. But was it also performed through a legal procedure?

Well, Joe, I truly appreciate your input. It's been extremely helpful and I am very much obliged.

Kind Regards, Simone

Setanta, your input further confirms to me the salient factor I put forward in the first part of my reply to Joe in Chicago. I couldn't make out how the escheating process occurred when an estate was held in fee simple. The historical background you have given me has been most helpful. That issue had been my most grievous stumbling block and I feel most gratified to have finally cleared it. Unless you are specifically looking for a detail, it is hard to decipher why things aren't making sense. Finding the distinction between a grant by the Crown in fee simple and an ordinary ownership hit the nail on the head for me!

QUOTE: The Wars of the Roses were arguably the biggest disaster for the peerage. Fully half of all families of the peerage were extinguished in the direct male line (the "right line"). This became an important source of patronage for Henry Tudor, King Henry VII. Additionally, with the seizure of ecclesiatic properties by Henry VIII, a great many new estates could be sold or created for the political machinations of the King. UNQUOTE

Your above recommendation is an interesting idea as a mode by which my fictitious Peer's ancestors could have purchased a sizeable portion of their estate and I will take you up on it. Thanks.

I hope I can impose upon you a little longer by asking you to also have a look at my reply to Joe in Chicago in case you have anything further to add. You and he both have been of great assistance to me. I truly appreciate your help.

Kind regards, Simone

I appreciate your suggestion and will definitely look up "The King's Speech". Thanks.

William IV was King at the time of the Reform Act. It is and long has been a tool of the party in power to ask for a creation of peers on the part of the monarch to avoid a constitutional crisis. It is almost never carried out. Joe is right to point to the Reform Act because it was one of the most bitterly fought occasions on which the PM demanded a creation of peers. Without going into too much detail, Lord Greay asked King William for a creation of 50 to 60 peers, the King refused, Grey resigned, Wellington (Tories) attempted to form a government and failed, and the King was obliged to call Grey back. Grey had a majority in the House, and when the bill was finally sent to the Lords, they caved, by the simple expedient of most of the Tory Lords staying way. So in the end, there was no creation of peers. It is the theat that matters--in this case, the Lords, controlled by Tories, did not want to be overwhelmed by Whig peers, so they caved in.

The operative factor is not the peerage granted, but that those for whom the new peerage is created will vote for the PM's party. I believe the last time that the monarchy and the peerage caved to a demand for the creation of peers was in circa 1910 (1911?) when the House of Lords finally lost their veto--they had opposed a budget bill, which lead to a confidence vote which the government sustained (Lloyd George?--not hard to look up). Therefore, the PM asked the King for a creation of peers, and the Lords caved in and voted away their own veto.

In addition to Joe's comments about bastards, the name Fitzroy or FitzRoy means son of the king. It is not that uncommon. King Charles II fathered a quiver full of bastads who were known as Fitzroy. He was able to create most of them Dukes (or Duchesses). When he failed to do so for the bastard son of Nell Gwynn, she took to calling the boy "you little bastard" in the King's presence, until he became irriated and demanded that she stop. She pointed out that he "had no other name," so Charles caved in an made him an Earl.

By the way, the succession from 1810 onward was--George, Prince of Wales becomes Prince Regent due to the incapacitation of King George III; George, Prince Regent becomes King George IV upon the death of the King in 1820; George IV dies in 1830, and is succeeded by the Duke of Clarence, who reigns as William IV; William dies in 1837, and is succeeded by his neice (the oldest surviving child of the brothers, sons of George III), Victoria. It seems that you left out King Billy.