Common law versus common practice: the use of marriage settlements in early modern England

Abstract

T wo varieties of marriage settlement are known to historians. The first and better known is strict settlement, thoroughly explored in the work of Habakkuk, Stone, Clay, Cooper, Bonfield, and Saville and English. The principal feature of strict settlement was the entailment of property upon the eldest son and his eldest son, reinforcing the practice of primogeniture and (according to some) engendering the phenomenon known as the 'rise of great estates' in the late seventeenth and eighteenth centuries. It is generally thought that these settlements were confined to the aristocracy, on the assumption that no one else had so keen an interest in the entail of property, or cash to pay the solicitor to write the conveyance.' Strict settlement has come to be regarded as synonymous with marriage settlements generally, serving to reinforce the idea of early modern England as an intensely patriarchal society in which women were largely victimized by the common law of marriage. In fact, while strict settlement was one type of marriage settlement, it was certainly not what most people meant by a marriage settlement. The other, and less commonly known, type of marriage settlement is the trust for a married woman's 'sole and separate estate', which preserved a woman's independent interest in specified property during her marriage. Separate estate was defensible only in equity, as opposed to common law, and formed the basis of legal reform in the late nineteenth century. For this reason, historians of the Victorian married women's property law reforms have focused on marriage settlements for separate estate. Two legal historians, Kenny and Lawrence, wrote shortly after the reforms; now, a century later, a political analysis has been contributed by Holcombe.2 Although the English practice of separate estate is generally thought to have originated in the late sixteenth century, the only detailed studies of the use of these trusts in the early modern period relate to colonial America.3 Both Victorianists and