o. You have a daughter. And you want her to live reasonably well. But you don’t know who she’ll marry, and a husband could leave her destitute. What do you do?

At law, everything the wife has is the husband’s. But that is something that is only true at law–note the preposition. I don’t say by law, because in Regency England, there’s more than one way to skin a cat. You can skin a cat at law. Or you can skin a cat at equity. The courts of Chancery were the courts of equity. And so what people did–almost entirely–was settle property on the daughter–that is, give her the property conditionally, with the property being held in trust by trustees.

Here’s a relatively simple case from 1703. The eldest son of Baskervile was supposed to marry Mrs. Reyner, a widow (the High Court of Chancery doesn’t mention whether Mrs. Reyner was a virgin widow, but we’re romance authors–we’ll assume so. )

Thus, in Baskervile, the parties had agreed to give up property “for the use of defendant Richard Baskervile for life, without impeachment of waste, then charged with 250l per ann. free from all taxes to the defendant Jane for life, for her jointure; remainder as to the whole to the children of the marriage as therein mentioned; remainder to the right heirs of the said defendant Richard forever.” Whew! What just happened?

In other words: the husband gets the property for the duration of his life. “Without impeachment of waste” means that if he screws it up–bad planning, selling off furniture in the estate–they can’t go after him. Then his wife gets the property if she’s still alive. She doesn’t get all of it; she just gets 250 pounds per year. When she dies, their joint children get it, but if they don’t have any children, it goes to the heirs of her husband.

That was easy. But what was the holding point? The wife’s family didn’t actually have the property in question. You see, the property had been settled in the wife’s prior marriage and so was “lodged in the hands of trustees to be invested in lands, and settled on Reyner & ux [his wife] for life, remainder to their issue, remainder to her children by any other husband, remainder to the heirs of Reyner.” The trustees wouldn’t (in fact, couldn’t) budge. Even though his wife had the property settled on her for life, the new husband couldnt touch it, because it was lodged in the hands of trustees, to be invested in lands. Not to be paid out at 520l per year. (There are other problems, too.)
So what’s a girl to do? Well, Lady Strathmore (this was in 1789) had a brilliant idea. She personally owned huge properties. She was engaged to a man–one Mr. Grey. Mr. Grey allowed her to convey her many properties, both real and personal, to trustees “for her sole and separate use, notwithstanding any future coverture.” Because Mr. Grey consented before marriage, this would have been enough to effectively make the property hers–NOT his.

Lady Strathmore got into problems, though. You see, shortly after conveying all her property to trustees, one Mr. Bowes fought a duel with a newspaper editor over Lady Strathmore’s honor. This was very romantic, and so Lady Strathmore married Bowes. Bowes didn’t know that Lady Strathmore had conveyed all her property into a trust, and the general rule was that if a lady conveyed her property into a trust for her separate use shortly before her marriage, without telling her husband, the conveyance was fraudulent. Lucky Lady Strathmore got off, though–she’d never intended to deceive Bowes, because she hadn’t really planned on marrying him.

So there you have it: married women can’t own separate property at law. But as a matter of equity, other people can own property for married women. So women who wanted to protect their separate property set up trusts (or had trusts set up for them by their fathers), which specifically stated that the property was “for her sole and separate use, notwithstanding any coverture.” (Courts were very, very strict about this: you had to make it very clear you intended it to be for her separate use aside from marriage.)

Oh; and all this had to be done before she got married.

But do you want to know the best part?  Suppose our dear friend the Lady Strathmore decided she really, really wanted to give up her separate property to Mr. Bowes.  Could she?  Answer: No.  Because once she conveys it to the trustees, it’s not hers any longer.

o I saw a comment someone made on a friend’s contest entry, and it made me roll my eyes. It made me roll my eyes because not only was it wrong, it represented a wrong-headed view of property and inheritance in Regency times that I’ve seen so often misrepresented that I want to beat someone over the head. This is an area that I do know something about–and not just because I’ve researched it for my WIP, either!
So, here’s the beating. As a start, I’m going to use this fluff piece here, which is completely wrong in almost every single particular.
Let’s talk about entails and inheritances, rules and devises.
An entail is a legal device that has a narrow form and a broad form. Many people mix the narrow and the broad form. The narrow form of entail–which persists from generation to generation (until something like 1926, when it was converted into an equitable interest–but that’s well outside the scope of our time period)–is a legal fiction that deals with the way that land is given.

Let’s take back a step. Land is given. Who’s giving? Jump back to feudal times. Land was usually given from lord to tenant, in exchange for some service. The service might be the provision of armed men, or giving up thirty cabbages in fall, or something ridiculous like jumping over a stream or delivering a flower. As you can imagine, land under this sort of an exchange wasn’t alienable; you wouldn’t want the beefy man with four sons to give up his land to the weedy dude with only daughters is military service was what you got from giving the man the land.

This system, of course, had eroded by the time the Regency period came into play. But the bones of the system were still in play: at bottom, the state owned the land (that’s why people talk about estates going to Prinny if there’s no heir), and so if there was no heir, the state became the successor.

So what does it mean to be an heir? Now we start getting into the ways in which that stupid Romantic times blurb is wrong. First, it is simply not true that under the law of primogeniture, the eldest son always inherited the property. That was the default rule–if the father died without a will, the eldest son got everything. But in the upper classes, the father almost certainly made a will, and he was perfectly capable of giving land to younger sons. In fact, a very famous case–the Duke of Norfolk’s case, from the late 1600s, which is referenced very obliquely (but incorrectly) in that little blurb–dealt with complications that arose when the Duke of Norfolk arranged his will to give land to his second and third sons.
So you could will land to people besides the eldest son. You could will it to daughters. Wives. Younger sons. Cousins. Favorite servants. Nothing stopped you.

Nothing? Well, not quite nothing. There were two things that could stop you. One, the property might have transfers restricted. Two, you can only give away things that belong to you after death.

The entail, in the strict sense, is a restriction upon transfer. When the land was originally granted to the first owner, it was often granted with conditions. Those conditions might look like this: “To A, and the heirs of his body.” Or “To A, and his heirs.” Or “To A, and the male heirs of his body.” Or even, if you had a very poor lawyer, “To A, and his male heirs.”

So what do those mean? If land was granted to A and the heirs of his body, it was entailed. Technically, it was granted in fee tail, which means that only children of your body could inherit it. Children? Which children? Well–whoever the heir was. That heir could be female; nothing prevented it. If land was granted to A and the male heirs of his body, it could only go to male heirs.

By the time the Regency period rolled around, there was no property that was truly encumbered by this sort of entail. They’d developed what’s called the common recovery. It was truly quite simple. A friend would sue for your property. You wouldn’t object. They’d take the property–and they’d take it in fee simple, namely, without the entail attached. And then they’d give it back to you. It was very well-established by then. This kind of an entail couldn’t stop anyone who had enough money to bring a case.

So, what’s the broad meaning of entail? The broad meaning of entail was not a condition placed upon the transfer of property; it was a condition placed upon the duration of the property. So imagine I have an estate, and I want to pass to my son, and to his sons. But how do I prevent my son from squandering it all? Well, that’s easy. I give my son a life estate, and then give the remainder (the remainder is the bit that’s left after my son has had the estate for life) to his eldest son. My son’s only allowed to spend what he has. If he wants to rent his estate for life and live in Brighton, he’s free to do that. The only thing he can’t do is sell anything on his estate for longer than the duration of his life.

Well, you’re saying. Why can’t I just give my son the estate for life, and then when he dies, HIS sons the estate for life, and then when they die, THEIR sons the estate for life? Well. Now we come back to the Duke of Norfolk’s case, and the Rule Against Perpetuities. The Rule Against Perpetuities (RAP) says, in short form: You can’t boss people around that far into the future.

More specifically (and this is not quite right, sorry, but there’s details I’m leaving out), it says that a condition is invalid if it is possible for the condition to still be in force when everyone alive at the time of the grant is dead plus twenty-one years. This is the statement that RT repeats as “the law only allowed an entail to remain in effect until the grandson of the person making the entail became twenty-one.”
And that would be wrong. Because in order to make an entail while you’re alive, which is precisely what the RT article says you do, you (a) grant yourself a life estate; (b) grant the remainder for life to your eldest living male heir; (c) grant the remainder to the eldest of his living male heirs.

And that violates the rule against perpetuities. How? Imagine you are the patriarch. You grant yourself an estate for life, remainder for life to your eldest male heir. Then all your sons up and die. Luckily, you remarry, and you father a son. At the time the grant was made, this son was not alive. You die; your son inherits.

Your son lives for a very long time. He lives until everyone alive when the bequest was made is gone. He lives for thirty years after that. Thus, 21 years after all lives in being have terminated, the condition–that passes the estate to his eldest male heir–is still in force. Is this likely? No. Is this probable? No. Did courts at the time care? No–in fact, in Jee v. Audley, a court in 1787 held a somewhat similar condition invalid, on the grounds that 80-year-old parents might have had another child. Not only was it impossible for the 80-year-olds to reproduce because they were, well, 80, but at the point when the court decided the case, they were dead. Did that matter? Nope.

My points in all of this is: First, an entail is not what many think it is. Second, there is no such thing as an entail that lasts forever. Third, there was a lot more fluidity in property devises than most romance novelists think. And fourth, if you think that someone’s property devise is “illogical” or “couldn’t happen”–you’re probably wrong. It probably could. The rules were very, very flexible. Then, as now, a good solicitor could get you … well, almost anything.

heck this out: Sexual Science, from the 1870s.

Some of this won’t be a surprise to anyone. But the part I found most amazing was the discussion of “self-pollution”–ie masturbation, a subject surprisingly absent in romance novels. (The number of men who are unwilling to obtain release by any method except sex in romance novels is both staggering and unbelievable.)

The amazing part is on page 363:

It is called masturbation, and consists in indulging immodest feelings and actions, and imagining sexual pleasures with the opposite sex. Most boys indulge in it, and a great many girls. . . .That night he staid with a former parishioner, was shown to bed with a lad of eleven, a church-member, a Sabbath-school scholar, all nerve, and, as he supposed, all purity and goodness, whom he no more suspected of this vice than an angel; but whom, soon after retiring, he caught abusing himself and reproved. The lad replied, –

“Why, that’s nothing, for all the boys do that, and all the girls, too.”

So why the absence of masturbation in romance novels? Any ideas?

hrough Jo Beverly’s lovely post on Word Wenches, I have discovered Google Books. Google Books is, for those of us who no longer have access to the library of a world-class university, simply amazing. Instead of having to rely on someone else’s research (which drives me nutters, because how do I know that they did the deed right? Witness the near-constant misuse of “scandalbroth”), you can read first-hand accounts from approximately the correct time period.

Do a search for “The Society for the Diffusion of Useful Knowledge and you’ll find a huge variety of pamphlets, ranging from An Address to the Laborers, on the subject of destroying machinery from 1830. (Price one penny, With a Reduction to those who take a Quantity for distribution). This is an incredibly condescending piece of garbage, and one wonders what purpose it served except to merrily provide fodder to aforementioned laborers (who probably weren’t going to pay a penny for it). It’s not a great example of persuasive prose:

You appear to have contracted a great dislike to the use of what are termed Machines, and chiefly to the use of Thrashing Machines. You have never well considered the Reason for your dislike. You merely state, that Machines are hurtful to the Labourers—that they prevent the Poor from being employed. Upon these grounds, you proceed to destroy them.

The pamphlet then goes on to say that, of course, God gave us machines, and by the way, more machines lead to lower prices, something that Peter the Great really appreciated when he was trying to civilize Russia. The pamphlet notes that you’d have to be an idiot to not use saws and planes and doohickeys, and therefore, threshing machines are right out.

Of course, the pamphlet doesn’t deal with the real problem—given the widespread unemployment during the time, “cheaper wheat” wasn’t really an issue, because the very poorest couldn’t afford it anyway, and some people don’t care how much labor you save if it leaves some people unable to find work. But it gives us, at this time, a tremendous insight into how some land owners must have felt. And if you really think about, you can see how easily the common laborer would have been completely and utterly pissed off by the prospect.

But the Society for the Diffusion of Useful Knowledge has some lovely treatises on horses, and if you ever want to know how much you’d have to pay to buy an annuity in the period,
A Synoptical Catalogue of British Birds, which is super-useful because I can now verify that certain species of birds were, in fact, in Britain at the time, and what the common name was. Also the Latin name, which I imagine my hero would know, and which I haven’t got a clue. (Plus, it’s hard to know whether we’ve detected more–or less–speciation then they imagined, and so relying on modern latin names could well be wrong).

There’s also The Family Receipt Book, which has more home remedies than you can shake a stick at, and in fact, a bunch of home remedies where you’d want to shake at least five or six sticks. For instance, if you’re having trouble breathing, this lovely book suggests that “[a] quart of tar is to be stirred six minutes in a gallon of water,” and then drunk between meals. It advises that at first, you might want to use less tar, just in case you vomit it all up.

But it, too, contains some fascinating facts: “Ladies who work lace or embroidery sometimes suffer inconvenience from the perspiration on their hands; which may be remedied by rubbing the hands frequently with a little dry wheaten bran.”
I could go on and on. But I’ll stop with this gem: A Full Inquiry into the Subject of Suicide, to which are added (as being closely connected with the subject) two treatises on dueling and gambling.

It contains such lovely statements as: “But ‘gentlemen’ it seems may claim the exclusive privilege of pistoling one another whenever they please, not only with impunity, but also with honour.”

That, right there, is fodder for more plot devices than any reasonable novel can shake a stick at.

What are your finds?