Lord Derby: ‘The objects which men aim at when they become possessed of land… may I think be enumerated as follows: (1) political influence;(2) social importance, founded on territorial possession, the most visible and unmistaken form of wealth; (3) power exercised over tenantry; the pleasure of managing, directing and improving the estate itself; (4) residential enjoyment, including what is called sport; (5) the money return – the rent. ‘ Discuss. Up to the 19th century, land in Britain was sacred. Until 1870s, four-fifths of the land in the British Isles was in the hands of a few landed families.
This form of property represented status and citizenship. These few families dominated in the political, economic as well as cultural fields since they had great influence in various important institutions such as the government, parliament as well as the church. Because of its status-conferring characteristic combined with its social, political and economic advantages, land was a form of wealth which landed-families strongly sought to keep in the family. The legal instrument by which that could be achieved was known as the strict settlement.
It was more commonly done at the marriage of the eldest son of the family and hence it was also termed as the marriage settlement. However, it was often argued that it occurred more frequently when the eldest son came into age. Strict settlement as a conveyancing mechanism became popular after the Civil War. Settlement usually operated in the following way. All the affairs of a generation yet to be born were already determined at the marriage of the parents. Under a settlement made on the father’s marriage, the eldest son was possessed of an entail whereas the father had an estate for life.
In simpler terms, the father was a tenant for life and the son tenant in tail. If the latter inherited the property still with his entail, he would become an owner in fee simple and could thus do anything he wished with the land, for example he could sell it. Thus, to ensure the inheritance for future generations, the father and son would usually come in an agreement to resettle the land. The son would usually agree to cut down his own future interest into only a present interest in the land (similar to his father’s interest) in exchange for a present income and the inheritance would be entailed into his yet unborn eldest son.
The latter would be expected to undergo a similar resettlement with his father when he came of age or got married. Thus, generation after generation, there was no owner in fee and the estate would remain in the family. The scenario described above is that of a settlement. What made it strict was the concept of trust to preserve contingent remainders. Its function was to ensure that the legal estate conferred upon the eldest son’s heirs could not be destroyed by any unscrupulous act of the eldest son. In other words, it preserved the inheritance of the yet unborn son.
Trustees were usually men who were either members of the family, for example an uncle, or neighbouring landowners. They were to stand as watchdogs ready to enter the land should the tenant for life attempt to destroy it. In cases where there was a total failure of male successors, female heirs were the possible alternatives. This reflected that the principle of primogeniture was rigidly followed by the landed classes. However, there was a price to be paid for giving so much importance to primogeniture.
This gave way to the second purpose of the strict settlement which, most probably, had the greater practical effects. The other family members had to be provided for and it was usually the eldest son’s responsibilities (when he was considered to be the head of the family) to promote the welfare of his family (wife, daughters, younger sons). A wife was entitled to a pin money during the life of her husband and to a jointure (an income arranged at her marriage settlement in order to maintain her accustomed standard of living) in her widowhood.
Daughters had to be provided with portions (money) to help them in their marital life or in spinsterhood whereas younger sons were usually entitled to the same amount of money as to the portions of their sisters. These monetary gifts were a flexible way of caring for other family members while giving all power and land to the head of the family. As said earlier, up to the 19th century, possession of land was equivalent to high status, political, social and cultural influence as well as high monetary returns.
However, in the early 1900’s, capitalism emerged and the working-class exerted political pressure for a fairer distribution of wealth which led to the imposition of high rate of taxation and estate duty which discouraged the operation of the trust system. There was a declined rate of return from agriculture (purpose for which land was extensively used) and also a change in the use of land – from agriculture to other forms of more fruitful investments which were the results of urbanisation.
People no longer wanted to own so much land as there was many alternatives for increasing wealth. More lands were out on the market for sale and, because of strict settlement, sales of land were restricted. Leasing, mortgaging and improving land for commercial purposes were also hindered. The reason for this limitation in land transfer was the form of entail in strict settlements. For example, where A had a fee tail and he transferred it to B, the latter would have the estate as long as A had heirs.
What B acquired was called a base fee which was much less attractive than a fee simple. Thus, to enable land to be freely alienable, the common law courts established the concept of barring of the entail. This enabled the grandson to have freedom to alienate land once he became in possession of the entail. The trustee’s role remained to ensure that the entail descended to the grandson. Barring unfortunately affected future generations since they could not be sure to get the family land as an heir could have already alienated it.
Land was decreasingly considered as a symbol of status – conferring power, political and social influence but increasingly looked upon as a form of asset which could be disposed of for money. Hence, the use of strict settlement led to two contradicting aspirations which were very difficult to reconcile – the desire for land to remain in the family and the desire to make land freely alienable for investment and commercial purposes. Until 1925, strict settlement was still in use in English land law but later on, it was subject to many law reforms which favoured the free alienability of land.