Proprietary Strategies: The Legal Fabric of Aristocratic Settlements
| Author | Alain Pottage |
| DOI | http://doi.org/10.1111/1468-2230.00136 |
| Published date | 01 March 1998 |
| Date | 01 March 1998 |
Proprietary Strategies: The Legal Fabric of Aristocratic
Settlements
Alain Pottage*
At the beginning of the eighteenth century, Daniel Defoe complained that the strict
settlement was the most venal of the instruments by which, as he put it, affection
was ‘begotten’ by property. Recently, Lawrence Stone has argued that, however
appropriate this view might have been to the predecessors of the aristocratic strict
settlement, it does not describe the distribution of family property in the
‘aristocratic century’. Although earlier forms of settlement were instruments of
patriarchal discipline, the aristocratic strict settlement allowed for the unfolding of
marital and parental relationships motivated not by status but by love, affection,
and a novel concern for the individual.1Women were given larger and more secure
portions, which allowed them to make marriages of their own choosing; once they
were married, they were more likely to enjoy separate property, and hence a degree
of independence within the framework of a ‘companionate’ or ‘egalitarian’
marriage.2These aspects of Stone’s account of the rise of ‘affective individualism’
have been severely criticised. His feminist critics argue that he underestimates the
persistence of patriarchy. So, for example, Eileen Spring emphasises the difference
between property structures and affective relationships; whether or not affective
relationships underwent some sort of transformation, property remained patriarchal
for the quite simple reason that settlements were governed by a distinction between
men and women. The basic objective of aristocratic settlement strategies was to
exclude women from any effective form of land ownership. Indeed, settlements
were driven less by a positive preference for men, or for collateral males in
particular, than by a negative reference to women, and to the heiress at law in
particular. The consequences of this asymmetry could rarely be modified by
paternal affection. Given that land was settled a generation ahead according to a
standard conveyancing template, a father who had daughters but no sons was
effectively prevented from indulging any ‘natural’ preference for his daughters
over the collateral males to whom the settlement directed his estates.3In a
somewhat more theoretical language, Susan Staves seeks not so much to
differentiate property structures and affective relationships as to rethink their
complicity. Where Stone sees eighteenth-century settlements as the expression of a
more egalitarian marriage relationship, Staves presents them as instruments which
manufactured and imposed asymmetrical gender roles. The rights promised to
women in private settlements, rights which ostensibly guaranteed them a measure
ßThe Modern Law Review Limited 1998 (MLR 61:2, March). Published by Blackwell Publishers,
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162
*Law Department, London School of Economics and Political Science. I am grateful to John Dewar,
Joshua Getzler and Tim Murphy for their observations on drafts of this article.
1 See N. Stone, The Family, Sex and Marriage in England, 1500–1800 (Harmondsworth: Penguin,
1979).
2 See also R. Trumbach, The Rise of the Egalitarian Family (London: Academic Press, 1978).
3 E. Spring, Law, Land and Family: Aristocratic Inheritance in England 1300 to 1800 (Chapel Hill:
University of North Carolina Press, 1993).
of independence, were ideological forms which worked only to reinforce the
gender roles attributed to, and inhabited by, women.4
Feminist accounts of aristocratic settlement practices have done much to unravel
the facilitating narratives which sustain the traditional (male) historian’s account of
settlement. In particular, Spring’s critique of the notion of primogeniture5shows
how specific prejudices are reproduced as a set of cognitive commitments which
infiltrate even the most intricate and arcane aspects of the exposition of settlement
structures — the validation of contingent remainders, the ‘invention’ of the trust to
preserve remainders, or the evolution of entitlements to portions and jointures.
Perhaps this critique only reinforces the banal but important point that historical
materials are (re-)constituted by the questions asked of them in the present. If that is
so, the chief defect of traditional settlement scholarship is that it overlooks its role in
producing what it describes. Ironically, however, the same might be said of critical
feminist scholarship, which, although it puts established analytical tools to new
uses, fails to recognise all of the cognitive prejudices set into those tools. As a result
it leaves in place a set of assumptions about individuality, action and intention
which are, arguably, the most significantly ‘masculine’ elements of traditional
accounts. If patriarchy is indeed ‘a myth in action’,6the most basic elements of that
myth are lodged in theoretical elements and dispositions such as these. There is no
ready answer to the question of how one should write a history of settlement
practices, or of how one should address the difficulties that arise when practised
expectations are appropriated for strictly historiographical purposes. At the very
least, one should be suspicious of categories such as ‘property’, ‘individuality’, or
even ‘sexual difference’, which, because they import presumptions of continuity,
disguise the contingency of historical observation. The approach taken here
explores a particular historical use of ‘property vocabulary’, the better to loosen the
hold which the familiar, unitary, concept of ‘property’ still has upon legal theory.
The question of how settlements disciplined or excluded women introduces
some general theoretical questions about personal roles and social evolution.7In
this article, I am concerned with a more limited issue — how far did the provisions
of settlement texts describe or prescribe the practical expectations of individuals in
4 S. Staves, Married Women’s Separate Property in England, 1660–1833 (London: Harvard
University Press, 1990).
5 To some extent, this critique is anticipated by Bonfield’s observations about references to ‘entail’
and ‘primogeniture’: ‘the use of these two legal terms of art is technically flawed, but far more
troublesome is that they carry with them particular connotations that are misleading’ (L. Bonfield,
‘Affective Families, Open Elites and Strict Family Settlements in Early Modern England’ (1986) 39
Economic History Review, 341, 345).
6 L. Irigaray, ‘E
´gales a` qui?’ (1987) Critique 420, 423. If one of the elements of that myth is the
structure of comparison which allows the diagnosis of asymmetry to be made, or which allows one to
distinguish natural identity and gender roles, then the approach taken by Spring and Staves is
especially problematic. See further, Irigaray, E
´thique de la diffe
´rence sexuelle (Paris: Minuit, 1985),
and J’aime a
`toi (Paris: Minuit, 1992), and also my commentary in Pottage, ‘Recreating Difference’
(1994) Law and Critique 131.
7 For example, social theory suggests that personality is a cultural artefact, not only in the sense that
roles or codes of personality are the contingent products of historical evolution, but also, and perhaps
more importantly, that it is not productive to suppose that these roles clothe a natural, a-historical,
individuality. See especially N. Luhmann, Love as Passion (Cambridge: Polity, 1986). Recent
feminist writing has done most to explore the notion of personality as a cultural artefact. Again,
much of this writing would question the approach taken by Spring and Staves, which depends upon a
conventional distinction between sex and gender roles. More critical accounts suggest that sex, as an
attribute of the ‘material’ body, can be designated only by using semantic distinctions; so, although
the body is conventionally assumed to pre-exist the discursively-structured gender roles in which it is
imprisoned, the material body is itself ‘materialised’ discursively. See,for example, J. Butler, Bodies
That Matter (London: Routledge, 1994).
March 1998] The Legal Fabric of Aristocratic Settlements
ßThe Modern Law Review Limited 1998 163
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