Over on my own blog, Every Woman Dreams, I post a great many pieces about entails, inheritance, etc. I attempt to make sense of Regency era law for readers and writers. In Amending the Shades of Pemberley, I am using the idea of Common Recovery. Many Jane Austen readers/writers have explored this idea as a means for Mr. Collins to be the heir to Longbourn.
What the heck is Common Recovery and how could it be used to claim an entailed property?
In feudal times, land was given from lord to tenant in exchange for services. This “service” could be a number of things from serving in the lord’s army to delivering a bouquet of flowers to a woman who had caught the lord’s eye. Naturally, the man who had served in the lord’s army and had sons who could follow in the man’s footsteps, likely received more land and more favors than did the fellow who carried a bouquet of flowers to the lord’s new lady love.
Most assuredly, the system was no longer practiced by the time the Regency rolled around, but the basis of the Georgian era entail found its groundwork in these feudal dealings. It was true that if the man owning the estate had no heir, then it could revert back to the Crown.
Take the case of the Duke of Norfolk. The Howard dynasty is known for its roots as staunch Catholics, which often resulted in conflict with the reigning monarch, particularly during and after the reign of Henry VIII. In 1546, Thomas Howard, the third Duke, fell out of favor with the dying Henry and was eventually attainted on 27 January 1547. [In English criminal law, attainder was the metaphorical “stain” or “corruption of blood” which arose from being condemned for a serious capital crime. It entailed losing not only one’s life, property and hereditary titles, but typically also the right to pass them on to one’s heirs. [As a side note, I used this plot point in my romantic suspense Regency entitled, The Heartless Earl.] Stripped of his titles and his lands reverted to the Crown, Howard was imprisoned in the Tower of London, where he narrowly escaped execution through Henry’s death the following day, but remained imprisoned until the death of Edward VI and the accession of the Catholic Queen Mary to the English throne in 1553, upon which his lands and titles were restored to him. However, the Duke died the following year and was succeeded by his grandson Thomas as the fourth Duke of Norfolk.
Thomas Howard, 4th Duke of Norfolk, grandson of the preceding duke, executed for treason against Elizabeth I, forfeiting the dukedom
Following Mary’s death in 1558 and the accession of her sister Elizabeth I, the new Duke was imprisoned for scheming to marry Elizabeth’s cousin Mary, Queen of Scots. After his release from house arrest in 1570 and subsequent participation in the Ridolfi plot to enthrone Mary and Catholicism in England, he was executed in 1572 for treason and his lands and titles were again forfeited to the Crown.
In 1660, the fourth Duke’s great-great-grandson, the 23rd Earl of Arundel, was restored to the family lands and dukedom. The dukedom remained in peril. Mentally infirm, the fifth Duke never married and died in 1677. He was succeeded by his younger brother Henry as the 6th Duke, through whom the 7th Duke, 8th Duke and 9th Duke of Norfolk were descended in the male-line.
Exactly, who could be considered an heir. We, generally, speak of the eldest son being the heir and inheriting all the property. It is true he would under primogeniture inherit the estate associated with the peerage, but not necessarily ALL the property. If the father died without a will, the eldest son got it all : lock, stock, and barrel, as the merism says.
In truth, a man might give land to his other sons and even his daughters. He could leave some of it to his wife. To his other relations, say an aunt or cousin, or even to a favored servant. Only the “entailed” land stayed with the eldest son. As long as the property had no restrictions, which, customarily, those associated with a peerage did have, the land could be dispensed with as the man wished. So, if he loved his second son better than his eldest, the eldest could receive the estate associated with the peerage, while the second son could receive all the other property. It breaks down to ownership. The peer did not “own” the land associated with the peerage; therefore, he can not turn it over to anyone except the eldest son (heir apparent and heir presumptive in practice, etc.)
The way it works is the legal entail (a fee tail) on the land is a restriction document. It restricts to whom the land can be transferred. We have all read in some historical novel how the land was to go to “Said Member of the Family and the heirs of his body” (meaning even the females could inherit), but, more likely to “Said Member of the Family and the male heirs of his body.” Only the children of the man can inherit, and it went to the male heirs, a fee tail male.
Such is how peerages worked, and, to greater extent, it also applied to landowners such as Mr. Bennet in Pride and Prejudice. Not all that feudal lord’s property and wealth, which I mentioned above, went to future dukes, earls, barons, etc. Remember some of the feudal lord’s kindness was handed out to the fellow carrying the bouquet, i.e., possibly Mr. Bennet’s ancestors. LOL! Yet, could Mr. Collins have inherited Longbourn through Common Recovery? Such is a whole other story.
The University of Nottingham tells us this: “Like a final concord, a common recovery looks impressive and important, but does not really provide much useful information. It was the product of a ‘collusive action’ – a fake legal procedure in the courts. Such court was usually the Court of Common Pleas, but manorial courts could also deal with common recoveries. Common recoveries were used to break entails (conditions stipulated in wills or settlements which limited the descent of freehold land to certain individuals) and transfer land. Once the common recovery had been achieved (‘suffered’ in legal language), the land reverted to fee simple. [FEE SIMPLE is still a term used in real estate law. If you looked at your property documents, you would find the term embedded in all the legal terms tucked away there. Essentially, it means: The real estate term fee simple describes a landowner’s complete and total ownership of a piece of land and all properties on it. The fee simple owner may do anything he wishes on the land, as long as it falls within established easements and zoning laws.] Reverting the land to “fee simple” (no longer an entail) enabled it to be sold to somebody else, mortgaged, or settled in a new way.
“Common recoveries were abolished by the Fines and Recoveries Act 1833. After that date, a simple deed of disentailment was all that was required to break an entail. Purpose: Transfer of real property (freehold or copyhold land by judgement of a court. The main purpose was to bar entails, remainders and reversions.
“Features of Common Recoveries:
- 15th century-1833
- very large
- written on parchment
- written in archaic court hand up to the mid-eighteenth century
- written in Latin until 1733
- vague description of land, e.g. 2 messuages and 150 acres of land in the parish of X
- Often appears in the form of an ‘Exemplification of a Common Recovery’. (Below find an example of a very attractive official copy of the record from the Court of Common Pleas, produced after the details were enrolled and examined. Includes a portrait of the monarch, and the Great Seal)
“The main people involved were:
- the ‘tenant in tail’. The person actually in possession of the land, who could not sell it because of an entail
- the ‘tenant to the praecipe’, or the ‘tenant to the freehold’. This was normally a lawyer, agent or other associate of the tenant in tail
- the ‘demandant’. The person who would own the land at the end of the court procedure. This would be the purchaser if the land was being sold, or a trustee for the tenant in tail if the intention was to create a new settlement”
If you wish more information, you might find these previous articles from my blog helpful: