Excepting the Aristocratical

Lawyers have seldom had a good press. According to Shelley’s father-in-law, William Godwin, a lawyer could ‘scarcely fail to be a dishonest man’, though that, he added, was ‘less a subject for censure than regret’. Shelley’s friend and biographer, Thomas Jefferson Hogg, being himself a barrister, could not go quite so far, but his verdict was almost as sweeping:

the most profound ignorance is ... the grand, unenviable distinction of the English lawyer – an animal too often drawn from the dregs of society – and the place of the real property lawyer is commonly at the bottom of this low scale. The conveyancer is usually some damaged article ... a cracked pitcher, deformed in person and disfigured, ridiculous through an impediment in his speech or by some broad provincial dialect, hardly to be understood by hedgers and ditchers; too vulgar for any judicial appointment, and ... not respectable enough for an attorney. Hence arises the pemicious ascendancy ... of low connections and low arts, and the absolute impossibility, so long as this state of things continues, of a thorough reform of the law, and of the mode of transfer of real property in England.

Hogg was given to overstatement and had a gift for disparagement, which did not endear him to the Shelley family. ‘Astonished and shocked’ by the first two volumes of his life of the poet, they regarded his book as ‘a fantastic caricature’, though it was in fact almost as favourable to Shelley as to its author. Hogg’s remarks on real property lawyers were certainly a caricature, but not one that was unrecognisable. Not long after his book appeared, no less a figure than the President of the Law Society told a legal audience that ‘many of the entails created [were] more for the benefit of the lawyers than of their clients.’ He conceded that such a view would be regarded by some as ‘rank heresy’, but he had formed it as ‘the result of forty years’ experience in a branch of the law into which [he had] had the most intense experience’. What was rank heresy to the Law Society had long been conventional wisdom to laymen.

From about the middle of the 17th century to the end of the 19th, as Sir John Habakkuk, who thinks more kindly of the legal profession than Hogg and Godwin, shows in his massive and compelling account of English land-ownership over three hundred years, the most common of the ‘entails created’ by the lawyers was the strict settlement. The object of that ingenious legal device was to keep the family estate intact by preventing the apparent owner from selling it. As Ricardo wrote in 1820 the equal division of properties among children was the prevailing practice in all English families ‘excepting the aristocratical’. Consequently a landed estate was inherited by the eldest son, and a strict settlement had to be based on an agreement between the apparent landowner and his eldest son. The word ‘apparent’ is necessary because under the strict settlement ownership was vested in trustees and the apparent owner was only a life tenant – that is to say he received the income from the estate but had no power to dispose of the estate itself. A strict settlement was usually made when the eldest son came of age or was about to be married: father and son agreed to be successive life tenants, after which the estate was to descend to the son’s eldest son, who would be tenant in tail. Since, unlike a life tenant, a tenant in tail could break the entail, that eldest son would have the power, if nothing more was done, to sell the estate when he came of age. But something more nearly always was done. For when he in his turn became 21, or was engaged to be married, the same arrangement was made again, and so on and on.

No doubt landowners would have liked to be able to create an arrangement that lasted even longer, making the family’s ownership of the estate virtually perpetual, as Scottish law allowed. Yet while the English courts smiled on strict settlements they could sec that a virtual freeze of landownership would be economically disastrous and socially dangerous. As a Chief Justice put it rather ungrammatically in 1699, ‘it was a great policy of the common law that alienations should be encouraged; for it is the greatest preserver and promoter of industry, trade, arms and study.’ However that may be, strict settlements did not come under the common law courts but the court of Chancery, which did not encourage alienation. Nevertheless, Chancery promulgated and enforced ‘the rule against perpetuities’, which laid down that no estate could be tied up for longer than the lives of those making the agreement plus 21 years. The rule against perpetuities thus ensured that the strict settlement had to be made anew in each generation.

Maybe Chancery just for once got it nearly right. Certainly Dr Johnson thought so. Shortly after he had been involved by Boswell in a long correspondence on the subject of entails, on which Boswell was quarrelling with his father, Johnson told Mrs Thrale that an entail did not indicate ‘a preference of the land to its owner’ but ‘the preference of a family to an individual’. According to Johnson, entails were desirable because it was good to preserve in a country men to whom the people were accustomed to look up to as their leaders. At the same time, though, he favoured leaving ‘a quantity of land in commerce to excite industry and keep money in the country’, since he thought that if land could not be bought, ‘there would be no encouragement to acquire wealth, because a family could not be founded there.’

Whether or not the strict settlement was good for the country, it was certainly good for the lawyers. The settlements became more and more complex, and the English law of property became so obscure that in the opinion of one expert the number of people who under-stood it was not more than twice the number of people whom Palmerston thought properly understood the Schleswig-Holstein question: that is to say, six. At the same time, it was reckoned that only one barrister practising in the courts had a perfect knowledge of the law’s practical effects. No wonder, then, that the lawyers prospered. Some of them made enough money to found a landed family and enter into a strict settlement of their own. Lord Eldon, who joined with Lord Ellenborough in leading the opposition to any reform of England’s uniquely bloody criminal code, made £22,730 in legal fees in 1810 alone. Lord Chancellor for 25 years, he accumulated a large for-tune and built up estates in both Durham and Dorset, as did his brother in Gloucestershire. At the other end of the legal pecking order, Peniston Lamb was a conveyancer – the breed most despised by Hogg – though he was also the land agent of the Coke family of Derbyshire. He prospered so well that his heir, Matthew, was able to marry the Coke heiress. Matthew Lamb bought Brocket in Hertfordshire and left a million pounds to his heir, who became the first Lord Melbourne and married Elizabeth Milbanke, Byron’s friend and confidante.

Dr Johnson’s opinion that the main motive for making money was to found a landed family was widely if not universally shared, and with it went the view that it was necessary for peers and baronets to possess landed property. In turn, the ownership of land demanded a house and park of suitable magnificence, and a style of life and hospitality appropriate to the rank of their owners. An obsession with rank tended to accompany the title, though Sir Walter Elliot in Persuasion was presumably unusual in never taking up, for his own amusement, ‘any book but the Baronetage’. When the Duke of Somerset’s second wife, a daughter of the Earl of Nottingham, dared to tap him on the shoulder, he was shocked. ‘My first wife,’ he remonstrated, ‘was a Percy and she would not have dared to presume so far.’ Habakkuk thinks he was ‘pathological’, but the preoccupation with station was general. In Constantinople in 1810, the young Lord Byron was invited to join the official procession at the British Ambassador’s leave-taking of the representative of the Grand Vizier, but when he discovered that his rank as a peer was not recognised and he would have to march behind the Secretary of the Embassy he felt insulted, and left in dudgeon.

Byron had no shortage of intellect, but with other landowners rank and acres were often not only a substitute for brains, they were almost an embodiment of them. In Mansfield Park, whenever Edmund Bertram met Mr Rush-worth he used to say to himself: ‘If this man had not twelve thousand a year, he would be a very stupid fellow.’ Of course, many of those with twelve thousand a year or more were far from stupid; but clever or foolish the landed interest was the dominant force in England throughout most of Habakkuk’s period. Not only landowners themselves but others, too, thought this was in the nature of things. ‘Influence must ever be in proportion to property,’ wrote Dr Johnson, and he meant landed property. In 1816, the second Lord Redesdale had no doubt that many of the troubles of that year were due to the disappearance of old families and the destruction of their hereditary influence, which had ‘greatly contributed to the present insubordination’. ‘If landed property has not predominant influence,’ he added, ‘the British Constitution which is founded on the predominance of landed property, can not stand.’

The preservation of the strict settlement system and the predominance of landed property depended on the eldest son co-operating with his father in agreeing to limit his interest, like that of his parent, to a life interest only. Even if the eldest son did not share the dynastic ambitions of his father, he could be persuaded to follow the family tradition. His father could threaten to stop his son’s income and make him penniless until death ended his power over him. Such a threat was usually unnecessary. The great majority of eldest sons willingly complied. Habakkuk has discovered only one who declined on principle. Percy Bysshe Shelley thought it monstrous that money should be tied up in that way, when so much good would be done with it if it was spent elsewhere, and despite the heavy financial loss he refused to accept the terms offered by his father and grandfather.

Sir John covers a vast field. His knowledge is encyclopedic, but almost every one of his seven hundred pages of text must have taken weeks of research, and inevitably some small errors have intruded. Lord Ellenborough was not ‘the first Chief Justice not to have a seat in the Cabinet’. In order to make Addington feel less isolated, he was included in the Cabinet of All the Talents in 1806. The appointment of Ellenborough, who both in and out of the Cabinet was a highly political judge, was distinctly abnormal, led to a motion of censure in both Houses of Parliament and was never repeated. Lord Margadale, the descendant of ‘the greatest of Victorian merchant princes, James Morrison’, who bought the Fonthill estate in Wiltshire, was not a ‘Conservative Whip in Neville Chamberlain’s government’. He was not elected to the House of Commons until 1942, two years after the death of Chamberlain, and he was never a Conservative Whip.

Lady Byron did not have a brother who died in 1815. After fifteen years of marriage, Sir Ralph and Lady Milbanke, having enjoyed, according to the latter’s aunt, better health, unexpectedly had a daughter Annabella, who was their first and only child. (Sir John gets it right on an earlier page.) More important, Habakkuk seems to me to misjudge the economic aspects of the Byron marriage. He believes that Byron was very conscious of the fact that Annabella was an heiress and was therefore prepared to offer virtually everything he possessed in order to win her hand; Habakkuk concludes that ‘even with the ill-balanced terms of the marriage she was a bargain.’ That verdict seems self-contradictory and the whole picture misleading. Byron had heard that Sir Ralph Milbanke was ruined, a notion derided by Habakkuk, though in fact Sir Ralph’s reckless expenditure on electioneering had seriously encumbered his estates. Annabella was indeed likely to inherit a large income from her mother’s family, and Byron did offer far more money for the settlement than he should have done, but that was because he was hopeless at business affairs and because the Milbankes were grasping, not because he was desperate to secure their daughter. Rarely has there been a less ardent suitor. Finally, Byron was gravely in debt and badly needed ready money. Unfortunately, Sir Ralph was also in debt and could not provide what was needed. In consequence, taking into account his increased expenses from being married, Byron was no better off than before, which meant his position was disastrous. Before long the bailiffs were in the house, and he even had to sell his books. Miss Milbanke was very far from being a ‘bargain’.

Elsewhere Sir John’s touch is sure. The choice of marriage partners often resembled a market or, as yet another Jane Austen character expostulated, marriage was ‘only a commercial exchange in which each wished to be benefited at the expense of the other’. Once again the lawyers prospered. The legal negotiations were protracted and expensive, which was tolerated since it was realised that the crucial part of the ceremony took place in the Temple not in church. Almost invariably, the settlement made some provision for daughters and younger sons, but the whole point of the system was to concentrate as much as possible of the family’s wealth in the hands of the eldest son and heir. The younger sons came off badly; yet they got their revenge in the end.

In 1894, death duties on land were introduced by the Liberal Chancellor of the Exchequer, Sir William Harcourt – who was a younger son. Harcourt had no doubt, he told Rosebery, when the Prime Minister objected to his proposal, that the measure would be strongly opposed by those elder sons ‘who find themselves deprived of monopolies which they ought never to have possessed and the privileges which enrich them at the expense of their poorer fellows.’ Ten years later he exulted in having been ‘born a younger son’, a state which he thought better than ‘all the pomp of the unhappy landowner’. Harcourt refrained from mentioning that part of the unhappiness of the landowner had been caused by his own imposition of death duties – though as Habakkuk makes clear the customary paranoia of the landowning class exaggerated their effect.

Sir John draws few general conclusions. His upbringing in the Welsh Nonconformist radical tradition, he tells us, made him unsympathetic to many features of the life of the landed élite, but his extensive examination of the genealogies has induced an admiration of the great abilities of many of them. He has come to feel that ‘many of the better features of English public life, its pragmatism, good sense and realism, derive in large measure from the way in which English estate owners behaved towards each other.’ And he believes that ‘as a governing class’ the English landed élite behaved better and more tolerantly than their equivalents in other countries. A full-length argument to this effect would have made his book even more valuable, but Habakkuk has preferred to provide with masterly lucidity all the facts for readers to decide for themselves.

The Settled Land Act of 1882 effectively abolished the strict settlement by entitling the life tenant to sell his land without the consent of the trustees. To that extent the pessimism of Thomas Jefferson Hogg over the impossibility of reforming the law of real property proved excessive, but it was another half century or so before what he would have regarded as ‘a thorough reform of the law’ was completed. So he was not all that far wrong.