To Have, to Hold, and to Vanquish: Property and Inheritance in the History of Marriage and Surnames
| Author | Deborah J. Anthony |
| Position | Associate Professor of Legal Studies, University of Illinois Springfield |
| Pages | 217-239 |
Br. J. Am. Leg. Studies 5 (2016), DOI: 10.1515/bjals-2016-0007
T H, H, V:
P I H
M S
Deborah J. Anthony *
University of Illinois, USA
ABSTRACT
Surnames, introduced to England with the Norman Conquest of 1066, became
commonly hereditary from parent to child around the fteenth century. Yet
during that time and beyond, women sometimes retained their birth names at
marriage, men sometimes adopted the surnames of their wives, and children
and grandchildren adopted the surnames of their mothers or grandmothers.
Surnames became closely tied to the concept of property, such that the person
with the property was the holder and creator of the family name. That person
was more often the man, but not always. As women’s property ownership be-
came more severely restricted over time, these diverse surname practices even-
tually disappeared. The connections between the operation of the surname as
a socio-legal function and property law and practice will be analyzed in this
paper. Important in this analysis is the legal recognition of personhood implicit
in the concept of property ownership; “legal personhood” for women was mi-
nimal during the period in which surnames became most restrictive for women.
Yet prior to that, both the property rights and the surname options for women
were more expansive, suggesting that the legal identities of women were more
developed in earlier centuries and experienced a signicant retrenchment in
more modern times. The causes and implications of these historical develop-
ments will be analyzed.
* Associate Professor of Legal Studies, University of Illinois Springeld, danth2@uis.edu.
CONTENTS
I. I ...................................................................... 218
II. P O ............................................................219
A. Theories of Property ......................................................... 219
B. Women’s Historical Inheritance and Property Ownership.... 220
1. Pre-Conquest ........................................................................220
2. Post-Conquest and Feudalism ..............................................225
III. S P .....................................................232
IV. C ..........................................................................238
© 2015 Deborah J. Anthony, licensee De Gruyter Open.
This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 License.
218
5 Br. J. Am. Leg. Studies (2016)
I. I
Surnames have existed in English culture for over a thousand years. But
until about 1600 A.D., surname adoption was a highly variable and uid
cultural practice rather than a rigid, legally dictated one, and hereditary
assumption of names was the exception rather than the rule during the
early centuries. Women often held individualized surnames reecting spe-
cic traits, occupations, status, or parentage (e.g.,Cecilia Fairwife, Alice
Silkwoman, Agnes Widow, Mary Robertdaughter, respectively). Matro-
nymics—the hereditary passing of a female’s name to her descendants—
was common. Surnames such as Margretson (son of Margret) and Madi-
son (son of Maddy, nickname for Maud) are just a few of a great many
examples of this type of naming. Women’s given names also frequently
became surnames, without the “son” or “daughter” appellation. Marriott
is a Middle English nickname for Mary; Agnes, Elizabeth, Margaret, and
Helen are just a few additional examples of female given names that were
converted to surnames of various forms. The strongly gendered status quo
of contemporary times collectively believed to be “traditional,” whereby
wives assume the names of their husbands and children the names of their
fathers, is a relatively recent phenomenon rather than an ancient English
tradition.
Hereditary acquisition of surnames had become the norm around the
fourteenth to the fteenth centuries, though the practice was inconsistently
applied from one region to the next.1 Yet well after this time, when women
had become rmly established as legally impotent, they nevertheless some-
times retained their birth names at marriage; men sometimes adopted the
surnames of their wives; and children and grandchildren sometimes took
the surnames of their mothers or grandmothers. Women had been permit-
ted to own and inherit property through early medieval times, with Saxon
landowners willing their lands to their daughters as well as their sons. Later,
inheritance for daughters became limited to situations where there were no
surviving sons. Surnames as a social and legal convention became closely
connected to property, such that the person with the property was the hold-
er and creator of the family name. That person was more often the man,
but not always. However, this type of female inheritance too diminished
until sometimes even distant male relatives were preferred for succession
over immediate family members who were female. As women’s property
ownership became more severely restricted over time, these variable sur-
name practices also disappeared. The operation and function of property,
especially as applied to women, is connected to the operation of surnames
as a socio-legal function.
1 P.H. Reaney & R.M. Wilson, A DictionAry of English surnAmEs Xlv-Xlvi, Xlix, Li
(3d Ed. 1997).
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