The Entail of the Regency – Part One

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.

“This Earle of Oxford, making of his low obeisance to Queen Elizabeth, happened to let a Fart, at which he was so abashed and ashamed that he went to Travell, 7 yeares. On his returne the Queen welcomed him home, and sayd, My Lord, I had forgott the Fart.”Brief Lives by John Aubrey

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.

Isabel, 8th Countess of Devon, inherited the earldom according to its entail, with remainder to heirs general (as opposed to heirs male). This must have troubled her as much as it did her male colleagues. At one point, she, a tenant-in-chief to the king, went into hiding to avoid a forced marriage to Simon de Montfort. She outlived all her children and was succeeded by a collateral heir, the male descendant of the 5th earl. Pictured: a carving in Dorset’s Christchurch Priory purportedly to be her likeness.

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.

The Lord Chief Justice and his wife were comforted in their childless state by taking in two girls, Dido Elizabeth Belle and Lady Elizabeth Murray. Born overseas, they were sent to live with the Earl and Countess in Robert Adam’s gorgeous creation, Kenwood House. The artist of this famous portrait, David Martin, won recognition for the ‘honest, natural style’ of Scottish painting.

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.

A Regency Title: by Tenure

In Norman times, English baronies were granted by charter to nobles holding land of the Crown. As a result of King John’s concessions to the barons, these noblemen also gained the right to advise the monarch, confirmed by writ of summons issued by the Crown. Just as the baron’s lands passed to his descendants, so too did the right to be summoned to Parliament.

A wrinkle in the tradition arose as the Crown began to issue writs of summons to favored subjects who were landless. Although no estates were part of the transaction, the dignity conferred on the subject, a barony, was nevertheless created, and one that passed to descendants as well.

Moreover:

“Although writs of summons do not contain any words of inheritance, yet when a person has taken his seat he acquires the Dignity for himself, and his lineal descendants, male and female.”

The Practice, in the House of Lords, on Appeals, Writs of Error and Claims

of Peerage, by John Palmer (1830)

During the reign of Henry III, Robert de Ros (pronounced roos) held several manors, including Belvoir Castle. He was issued a writ of summons to attend Parliament, and thus became a baron.

It is perhaps ironic that the writ was issued in the king's name by a rebel against its authority--Simon de Montfort.

It is perhaps ironic that the writ was issued in the king’s name by a rebel against his authority and enemy of the queen–Simon de Montfort.

The Barony de Ros passed to his descendants, and eventually came to the Manners* family, Earls and Dukes of Rutland. So, too, did Belvoir Castle come into their possession and became their seat. (The other manors Robert de Ros held, Hameslake and Trusbutt, had long since been aliened; that is, sold or otherwise separated from the de Ros family).

By the time Lady Henry Fitzgerald claimed the title, in 1790, Barony de Ros had become the most ancient in England. She asserted her descent from Lady Frances Manners, one of two daughters who were coheirs of their father, John, 4th Duke of Rutland.

The fourth and present Belvoir Castle--the second notably the site of alleged witchcraft, and the death of the Duke's sons.

The fourth and present Belvoir Castle–the second notably the site of alleged witchcraft, and the death of the Duke’s sons.

Counsel for His Grace, the 5th Duke of Rutland, attacked her ladyship’s claim by arguing the de Ros honor was not inheritable by females. Although considered to have fallen into abeyance, the 4th Duke having only female heirs, he argued that Barony de Ros should go the way of Belvoir Castle, to the next male heir. (More on abeyance in a later post.)

Barony de Ros was, the Duke’s lawyers contested, a barony by tenure–a title that must pass in the manner of the estate to which it is attached. Therefore:

“..where the estates were entailed on the heirs male, the dignity descended to such heirs.”

— “A Treatise on the Origin and Nature of Dignities, or Titles of Honor: Containing All the Cases of Peerage, Together with the Mode of Proceeding in Claims of this Kind” by William Cruise (1823)

More ancient of the two, barony by tenure involves administrative and legal responsibilities to fulfill on land granted to the baron.  The title in this regard meant that the holder owed service under the feudal system to the Crown, in terms of money and manpower. Perhaps more of a headache than anything else, baronies by tenure scarcely exist today, apart from the ones sold on the internet (!) The baronies of Westmorland and Kendal have managed to hang on, but only in the sense of geographical boundaries.

Still, in the case of Robert de Ros, he certainly looked like a baron of tenure, already in possession of several estates.

Thus, the issue at hand–a barony by writ, or by tenure?

Stay tuned.

*the Manners family still holds the dukedom, and they appear regularly in British media. Belvoir Castle, (pronounced beever) emerged as a Regency-era showplace under the stewardship of the 5th Duke, one of the litigants in this series of posts.