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state. The stability of the state depended on the existence of well-rooted and well-endowed families in position of authority.67 'You shall in the process of years confound the nobles and the commons together after such manner that there shall be no difference betwixt the one and the other.'68 Indeed in the 19th century it was stated that primogeniture '...had a peculiar value...in preserving the independence of the aristocratic branch of the constitution...' to '.. .preserve the aristocratic branch of the government...' The absence of primogeniture and settlement '...would leave many peerages without an estate to support their honours.'69
Primogeniture would no doubt have been practised by the magnates at the core of the country division during the English revolution which undermined the political power of the Crown and aristocracy. Christopher Hill points out that strict settlement -designed to protect and preserve the principle of primogeniture, particularly after the abolition of feudal tenures - was crucial for the development of agrarian capitalism. It '...led on to the great consolidation of landed property which made the Whig oligarchy of the 18th century... it also contributed to the relative depression of the lesser gentry.'70
When in the 19th century it was proposed that the law on intestacy in connection with real estate be made the same as for personal property, where equal division occurred, such proposals were always violently and successfully resisted by the landed interest. Any interference with primogeniture, would, it was felt, by leading to division of estates "... destroy that fair and reasonable influence which the property and aristocracy of the country was (sic) allowed to possess.' According to Palmerston, such measures would be incompatible with the existence of the landed gentry and'.. .tended to republicanism.'71 'If Montesquieu approved entails and primogeniture as means to preserve noble families, themselves essential to true monarchies, he also expressed the republican tradition, partly derived from Harrington, that such devices were inimimical to republican regimes which required more or less egalitarian partible inheritance.'72
Although it has been argued that the primary intention of primogeniture was the establishment and maintenance of class privilege, Joan Thirsk notes that amongst the nobility primogeniture '...seems to have been deemed by common consent the most acceptable practise for family reasons... it reduced strife among brothers when the eldest automatically took the leading positions; it maintained the status of the family.'73 (my emphasis). In this context she cites Lupset from the 16th century, 'If the lands in every great family were distributed equally betwixt the brethren in a small process of years the head families would decay and little by little
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vanish away'74 as well as Powell, 'Partition in a populous country already furnished with inhabitants is the very decay of the great families, and...the cause of strife and debate'.75 Similarly, entails helped to prevent families with hereditary roles in government becoming impoverished due to the extravagance of an heir.76
Thirsk points out that primogeniture was not popular with the peasantry, and that during the Interregnum it was subject to adverse comment by pamphleteers as 'the most unreasonable descent.'77 Primogeniture amongst the peasantry seems to have been related to the degree of manorialization. It probably developed under strong seignorial pressure and was roughly associated with large demesnes and heavy labour services. In areas of weak manorialization the practise of partible inheritance still existed during the 16th century.78 She also argues that 'a clear distinction can be observed between the weakly manorialized districts of England and Wales where family cohesion was aided by the practise of partible inheritance, which involved much co-operation within the family, in the working of jointly owned land, and the highly manorialized areas, where the family observed primogeniture, and farming co-operation was not a family, but a village concern.'79
Faith similarly argues that '...there obviously is a connection between strong lordship and weak kinship and vice versa.'80 However, she also indicates that is misleading to draw a rigid distinction between the two systems. She points out that on partible holdings elder sons might become the sole heirs by buying out their younger brothers' shares. Meanwhile, in areas of primogeniture, younger children and other relatives could be provided for, either by settling land on them before death, or, very often, by use of the will.81 Indeed Faith argues that 'However much peasant inheritance customs varied by the 13th century, they shared one basic principle. They placed great importance on the concept of keeping the name on the land...the emphasis on family landholding is as strong in areas of partibility as elsewhere.'82
To further clarify why the bulk of property in feudal England was held by men, and to demonstrate the inadequacies of theories of patriarchy in this context, it is apposite to consider Goody's discussion of bilateral inheritance and diverging devolution. Diverging devolution is associated with intensive plough agriculture, complex systems of stratification and the centralised state societies of Eurasia. Under systems of diverging devolution, property is distributed to children of both sexes, females can receive property from males and males can receive property from females, as opposed to homogeneous devolution in which property is transmitted from males to males or from females to females. Moreover, in England, as with the main Eurasian societies, a close female was entitled to
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inherit before a more distant male, even where both were members of the same descent group.83 (Daughters also received part of the descent group's property through the medium of dowry). Under systems of diverging devolution property can potentially, therefore, be diffused, through marriage, outside the descent group.84 It is therefore unsurprising that daughters only inherited landed property as residual heirs, for otherwise any property they may have inherited might have been passed on to their children who were members of the husband's descent group. Indeed, if inheritance practises had been patriarchal in intent, the question arises as to why men should have allowed women to inherit anything at all.
Furthermore, although possession of landed property was for the most part vested in men, the reversionary rights of lords, and in particular the king, ultimately limited the scope of all heirs - women and men. Though property might be alienated, and an active land market existed,85 neither common law nor equity recognized absolute titles. In the seventeenth century the uncertainty of legal title was such that, after a purchase of land, Lord Chief Justice Hale, is reported to have said that he would be happy to pay the equivalent of another year's purchase price in order to be sure of the title!86
Property Relations Arising through Marriage
According to Christine Fell, in Anglo-Saxon England '...the laws recognize an element of financial independence and responsibility in the wife's status'.87 However, it has already been indicated that women's control over property was ultimately constrained by the marital relationship. In this context Patrick Wo rmald has argued that '...there are a quite significant number of charters and wills in which Anglo-Saxon women dispose of property...'. However, he has 'found no case where they can be proven to do so against the will of a living husband'.88
Indeed, the Lawes Resolutions of Women's Rights, compiled during the Tudor period and published in 1632, summed up the position of married women for much of the medieval and early modern period: That which the husband hath is his own. That which the wife hath is the husband's'.89 With the exception of the Queen of England, who from the 14th century had independent property rights,90 men became guardians of their wives' estates. Although there were legal devices to prevent a husband from alienating his wife's real property absolutely,91 husbands were nevertheless entitled to rents and profits. Given that a married woman had no proprietary capacity, she could not sue or be sued at common law in her own name, nor could she sue her own husband.92 Nor could she make contracts for her own benefit.93 There were some exceptions to the common law. Some
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corporation byelaws for example allowed married women to trade on their own account. They were treated as femme sole traders with certain proprietary and legal rights independent of their husbands. However, in the 17th century the common law increasingly took precedence, depriving married women of the proprietary rights they had previously secured.94
Upholders of theories of patriarchy would no doubt interpret the nature of property within marriage as a vindication of their case. Hartmann for example argues that patriarchy enables man to '...derive considerable personal and material benefits, e.g....a higher standard of living in comparison to women...'95 Christine Delphy understands patriarchy as a system of exploitation of women by men, through the 'marriage contract', enabling men to derive considerable material benefits.96
However, once again, we do not need to resort to theories of 'patriarchy' to explain the law of coverture. The specificity of property relations offers us a much more convincing explanation. In this context, bear in mind the contradictory nature of gender relations which likely existed within patri-corporations. Then, consider the implications of such contradictions when transformed into conditions of a class society where the nuclear family was separated much more clearly from the wider kin group, and where more individualistic forms of property pertained. With such a scenario it is arguably unsurprising that men maintained/gained control of property within marriage.
An appreciation of the actual dynamics of class society in feudal England may be instructive in attempting to explain conjugal property relations. This may enable us to explain the increasing precedence of the common law in the 17th century which deprived married women of any proprietary rights they had previously secured through local custom. It has already been pointed out that England was characterised by a highly centralised version of feudalism. As part and parcel of this, a national unified system of law - and hence the increased precedence of the common law - limited the parcelization of sovereignty characteristic of European feudalism.97 In England the king was lord of all lords.
It is also important to note the significance of dowry. A woman's dowry could either descend to the heir of the marriage,98 or could be used to buy land. Jack Goody points out that dowry is both a product and instrument of stratification. It demonstrates that a man has the capacity to ensure the maintenance of his daughters.99 As such it maintains or even promotes the status of the family. It is not implausible to suggest then that a husband's absolute possession of his wife's chattels and his entitlement to rents and profits might
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facilitate both the purchase of land and the provision of dowry for daughters.