¹ Stone, Lawrence, The Family, Sex, and Marriage in England 1500-1800 (New York, 1977).Google Scholar The use of law for framework is made clear on pages 87, 156, and 242.

² Ibid., p. 330.

³ Bonfield, Lloyd, Marriage Settlements 1601-1740 (Cambridge, Eng., 1983), pp. 115–22.CrossRefGoogle Scholar Bonfield attempts to provide support for Stone's theory that the strict settlement indicates a growth of affect. For comments on the points he raises see here footnotes 9, 11, 18, 22 and 26.

⁴ Stone, , Family, Sex, and Marriage, pp. 244, 243.Google Scholar

⁵ Ibid., pp. 333, 336.

⁶ Trumbach, Randolph, The Rise of the Egalitarian Family (New York, 1978), p. 103.Google Scholar

⁷ This precedent is reprinted in Holdsworth, W.S., A History of English Law, vol. 7, p. 547.Google Scholar

₈ Cooper, J.P., “Patterns of Inheritance and Settlement by Great Landowners from the Fifteenth to the Eighteenth Centuries,” in Goody, Jack, Thirsk, Joan, and Thompson, E.P., eds., Family and Inheritance (London, 1976), pp. 210, 228, 232.Google Scholar Cooper's discussion repays careful reading. It is full of insights, unfortunately often insufficiently emphasized.

⁹ In holding this demographic fluctuation especially significant, Lloyd Bonfield suggests that it led landowners to adopt a new “strategy of heirship,” an affective one as he believes is the strict settlement (Marriage Settlements, p. 122). He assumes that the people of the day were quick to respond to a minor and short-term demographic movement. They would have been unaware of it. The great secular rise of population that has marked the modern world went unrecognized for a surprisingly long time.

¹⁰ E.A. Wrigley seems to show that heiresses have been of surprisingly constant occurrence by nature (Goody, Jack, “Strategies of Heirship,” Comparative Studies in Society and History 15 (1973): p. 16CrossRefGoogle Scholar). Heiresses would seem to have been at least constant enough by nature that legal changes be paid attention to.

¹¹ Finding that a collection of settlements from 1601 to 1740 shows an increasing number that did not postpone the heiress at law, Lloyd Bonfield interprets this as an indication of the growth of the affective family (Marriage Settlements, p. 122). This is finding black swans and claiming that swans are black. Most settlements did postpone the heiress at law, and before the strict settlement there had for a long time been no device that could guarantee that in advance. It is not surprising that settlements should be found not postponing the heiress at law as settlement spread to smaller estates. The very aim in titled and great families was to postpone the heiress at law.

¹² Thomas, David, “The Social Origins of Marriage Partners of the British Peerage in the Eighteenth and Nineteenth Centuries,” Population Studies 26 (1972), Table 7, p. 105.CrossRefGoogle ScholarPubMed

¹³ Habakkuk, H.J., “Marriage Setlements in the Eighteenth Century,” Transactions of the Royal Historical Society, 4th ser. 32 (1950).CrossRefGoogle Scholar

¹⁴ Stone, Lawrence, The Crisis of Aristocracy (Oxford, 1965), p. 641.Google Scholar

¹⁵ Spring, Eileen, “The Family, Strict Settlement, and Historians,” Canadian Journal of History 10 (1983).Google Scholar This article is also forthcoming in Gerry Rubin and David Sugarmen, eds., Law and Economy.

¹⁶ Broderick, George, English Land and English Landlords (London, 1881), p. 100.Google Scholar

¹⁷ Stone, , Crisis of Aristocracy, p. 641Google Scholar; McFarlane, K.B., The English Nobility in the Later Middle Ages (Oxford, 1973), p. 277Google Scholar; Cooper, , “Patterns of Inheritance,” p. 221.Google Scholar

¹⁸ Using as evidence a Rockingham settlement of 1709, Lloyd Bonfield has suggested a level of portions much higher than what is suggested here (Marriage Settlements, p. 116). There is reason to think that the Rockingham settlement is not typical, and Bonfield agrees that it may not be. When it was made, Rockingham was so clearly expecting to inherit the estate of the earls of Faversham that this figured in raising jointure. The estate was shortly inherited, and Rockingham became so large a landowner as to gain an earldom. In other words, the portions in the settlement are to be judged against a larger estate than that actually in hand.

Moreover, a peaking of portions is to be expected about 1700 that does not appear in the calculations made here, for portions continued to rise between 1625 and the time when settlement became established.

¹⁹ Habakkuk has recently reiterated his belief that portions are larger when set in advance for unborn children than when freely determined for born children, while discussing an example that shows the opposite (“The Rise and Fall of English Landed Families, 1600-1800,” Transactions of the Royal Historical Society, 5th ser. 30 (1980): 204.Google Scholar)

²⁰ Quoted from Habakkuk, , “Marriage Settlements,” p. 19.Google Scholar

²¹ Cooper, “Patterns of Inheritance,” passim.

²² Holding that younger sons did badly before the coming of the strict settlement, Lloyd Bonfield declares that settlement “mitigated the harshness of the law of descent” (Marriage Settlements, p. 120). Theoretically it certainly did, but actually landowners have never generally allowed the law of descent to take effect upon their younger children. Moreover, as settlement represents a hardening of the law of descent against widows and heiresses—facts not mentioned—the law of descent is being selectively used.

²³ Blackstone, , Commentaries on the Laws of England, Book two, p. 172.Google Scholar

²⁴ Habakkuk, , “Marriage Settlements,” p. 21.Google Scholar

²⁵ SirWilmot, John Eardly, Notes of Opinions and Judgements, edited by his son, (London, 1802), p. 202.Google Scholar

²⁶ In support of the idea that settlement is an affective device, Lloyd Bonfield tries to show that landowners made substantial provision for widows. His method of calculation is not singular, but only typical of how historians have treated jointures. He fails to treat the jointure properly as an annuity by failing to compound interest during the years of marriage. This would reduce the very example of generosity he attempts to outline to a virtually even exchange. As for the other side of the ledger—the possibility that the wife might not even survive her husband—all that is said is: “Admittedly portions could be windfalls, but only where the widows did not survive their husbands for long periods” (Marriage Settlements, p. 117-8).

²⁷ Bonfield, Lloyd, “Marriage Settlements, 1660-1740,” in Outhwaite, R.B., ed., Marriage and Society: Studies in the Social History of Marriage (London, 1981), pp. 106–8Google Scholar; Stone, , Crisis of Aristocracy, pp. 642–4.Google Scholar

²⁸ Habakkuk, H.J., “Daniel Finch, 2nd Earl of Nottingham; His House and Estate,” in Plumb, J.H., ed., Studies in Social History (London, 1955), p. 155.Google Scholar

²⁹ Ibid., pp. 157-9.

³⁰ In an important demographic analysis, Lloyd Bonfield has shown that the strict settlement could not have been effective as a form of entail (“Marriage Settlements and the ‘Rise of Great Estates’: The Demographic Aspect,” Economic History Review, 2nd ser. 32 [1979]Google Scholar). It may thus seem a misnomer to call it a device of entail. From its form, however, it would seem to have aimed at entail, even if it did not succeed in establishing it. In any case, it certainly aimed to transfer an estate intact from one generation to the next. That is the reason for making a landowner a life tenant at or before his marriage. There is no separating the strict settlement from estate preservation and thus in a general way from entail.

³¹ The word harmonizing is used by Stone, (Family, Sex, and Marriage, p. 244).Google Scholar

³² Salmon, Marylynn, “Women and Property in South Carolina: The evidence from Marriage Settlements,” The William and Mary Quarterly 4 (1982).Google Scholar Salmon unfortunately implies that simple settlements on married women and the strict settlement are the same device.

³³ Habakkuk, “Marriage Settlements,” passim.

³⁴ Stone, , Crisis of Aristocracy, pp. 169, 173, 176, 638, 176, 646, 178.Google Scholar There is a different explanation for the rise of portions in the two books. This is an explosive matter. The reason now given for the rise will not suit the first book's portrait of the family, and the chronology of the rise will not suit the second's.

³⁵ Spring, “The Family, Strict Settlement, and Historians.”

³⁶ Cooper, “Patterns of Inheritance,” passim.

³⁷ That historians have found Habakkuk's theory so attractive really does need explanation. It is not merely that the theory might have been perceived on the surface to have weaknesses. Even when historians have found it not borne out in practice, they have not gone on to doubt it. Thus, when David Thomas demonstrated the trend of eighteenth-century marriages—though the theory required movement in the opposite direction—he continued to emphasize heiress-seeking as the theory mandated. Nor did J.P. Cooper doubt the theory when he found that younger sons and daughters were treated more or less alike, although it follows from that finding that the movement of portions cannot be ascribed to forces operating on daughters only.

³⁸ Stone, , Family, Sex, and Marriage, p. 718, ff. 72.Google Scholar

³⁹ Ibid., pp. 137, 157.

⁴⁰ Spring, Eileen, “Landowners, Lawyers, and Land Law Reform in Nineteenth-Century Engtand,” American Journal of Legal History 21 (1977).CrossRefGoogle Scholar

⁴¹ This trial takes on added significance in view of Wrigley and Schofield's recent conclusion. See later here.

⁴² Stone, , Family, Sex, and Marriage, p. 668.Google Scholar

⁴³ Ibid., pp. 377-8.

⁴⁴ When the Code Napoleon swept away the gains made by women at the time of the Revolution, Stone sums up, “The only surviving element of change from the pre-revolutionary situation was the legal claim to equality of rights of inheritance. The principle and practice of patriarchy, in and out of the home, was re-established.” English women in the eighteenth century had no right comparable to this remaining right of French women, yet eighteenth century England is held to be affective, not patriarchal. Moreover, when French women at the time of the Revolution did gain full equality in the home, Stone belittles the fact, emphasizing their failure to gain political equality, something outside the scope of discussion for English women. These unbalanced legal comparisons obscure a fact inherently subversive of Stone's theory: in France the destruction of aristocratic legal devices akin to the strict settlement meant an advance for women (Family, Sex, and Marriage, pp. 389-90).

⁴⁵ Wrigley, E.A. and Schofield, R.S., The Population History of England, 1541-1871 (Cambridge, Mass., 1981), p. 436.Google Scholar

⁴⁶ Macfarlane, Alan, review article in History and Theory (Feb., 1979).Google Scholar

⁴⁷ Stone, , Family, Sex, and Marriage, pp. 665–6.Google Scholar Stone states his agreement with de Tocqueville who held that the family was changing with “the democratic spirit,” but the context is one arguing against a linear interpretation of family history because of a return of patriarchy in the nineteenth century.