This blog often analyzes the social stratification (there’s a mouthful) of Regency-era England. It is the Maypole around which Jane Austen spun her tales and today’s authors rely upon time and time again for character development and conflict. Rules determine a person’s rank in society. The entail insures that the descendants of that person also enjoy the same precedence.
But rules are made to be bent or even broken.*
In the event of rival claimants to a title, it is the House of Lords who must interpret the entail language contained in the original grant of the hereditary dignity at issue. The inheritance history of earldom of Oxford, which is very long indeed, at one time hung in the balance between the male descendants of two previous earls.
When the 18th Earl of Oxford died without issue, Baron Willoughby of Eresby pressed his claim to the earldom, his mother being the daughter, and heir general, of the 16th earl. The other claimant, Robert de Vere, was more distantly related to the deceased earl, being descended from a younger son of the 15th earl.
The original grant of the earldom of Oxford was made by the Empress Maud to Alberic de Vere with the remainder to his heirs, (meaning the children of his body). His oldest male child would succeed him, being given preference by custom and precedent over all his other children. The children of the oldest male, including females, would then be given preference as lineal heirs over their cousins, males included, the so-called collateral heirs of the original grantee.
Several successors to the earldom of Oxford were attainted for treason. Afterwards, depending on who you ask, the earldom was either revived or granted via a new patent to their de Vere descendants. This confusion was partly due to Parliament’s involvement in such proceedings.** Statutory language ignored the terms of the original grant to give the remainder to heirs male of the body. Eresby, a lineal heir, was passed over for an heir descended from a male in the collateral line.
In the end, a captain in the Dutch army named de Vere became the 19th Earl of Oxford.
And yet time hath his revolutions: there must be a period and an end to all temporal things–finis rerum: an end of names and dignities, and whatsoever is terrene, and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Nay, which is more and most of all–where is Plantagenet? They are entombed in the urns and sepulchres of mortality. And yet let the name and dignity of De Vere stand so long as it pleaseth God.”A Digest of the Laws of England Respecting Real Property, Volumes 3-4, by William Cruise, citing the Lord Chief Justice Crew’s magnificent opinion rendered in judgment on the entail of the Earldom of Oxford.
A troubling prospect occurs when there is no male heir of the body. In that case, the language of the original grant can be crafted to insure the family preserves its precedence for future generations.
A female is better than no heir at all.
For example, that clever lawyer and Lord Chief Justice of the King’s Bench, William Murray, 1st Earl Mansfield was bound and determined that the 2nd Earl would be a Murray, too. He did not have heirs of the body himself, he and his wife being childless. The nearest male relation was his nephew, David Murray, Viscount Stormont. So he crafted a special remainder to the entail, writing in his nephew’s name for the King’s signature.
But before the King could sign them, his lordship began to have second thoughts. Perhaps he had not done enough to insure a Murray would sit in the House of Lords. Politics of the time could very likely prevent David from being summoned.
He was a Scot.
To remedy the problem, the Lord Chief Justice sat down again to create a new special remainder to the entail. Striking the tail mail language, he rewrote the grant to make the earldom pass to a female. David’s wife would become the next Countess of Mansfield. The entail further provided that the male heirs of her body by his nephew would succeed her–Murrays all of them.
But times were a-changing. The bias against a Scot taking a seat in the House of Lords disappeared (if it ever existed). His lordship accordingly wrote out another set of letters patent with a more conventional entail. Duly signed by His Majesty, the grant of a new title was made–the Earl of Mansfield, second creation, and a special remainder to his nephew David.
Just to be on the safe side.
*This blog post deals with English law as it was during the Regency. Not as it stands today. Secondly, this blog post is not intended as legal advice. There are generalities being made here–every circumstance warrants a fresh analysis not possible in this format.
**Further complicating matters was a contest between heirs general for the hereditary dignity Lord High Chamberlain of England commonly granted to the Earls of Oxford.