As we saw in my previous post, a key theme in both Jane Austen’s novels and George Eliot’s Daniel Deronda is that of the entail: the requirement that entailed real property pass down the male line, even if that leaves widows and female descendants unprovided-for.
The “male line” means, of course, the legitimate male line. In Daniel Deronda, Deronda himself suspects (at least earlier in his life) that he is the illegitimate son of Sir Hugo Mallinger – a position from which he is unable to supplant Henleigh Mallinger Grandcourt as heir to the Mallinger estates.
Attitudes towards illegitimacy have, of course, transformed over the past century or so – to the extent that even the word “illegitimacy” has fallen almost completely from use. Usually this is presented as a change in moral attitudes: depending on their point of view, some will hail this as a sign that we have become more liberal and enlightened, while others will decry it as a descent into moral anarchy.
However, “illegitimacy” was (as the word itself demonstrates) a legal category, and it was a series of changes in the law that largely emptied it of meaning. The Legitimacy Act 1926 allowed for children born out of wedlock to be “legitimised” if the parents subsequently married one another; the Family Law Reform Act 1969 allowed “illegitimate” children to inherit property on the death of an intestate parent. As a result, almost all the former legal impediments of “illegitimacy” have been swept aside. (Succession to hereditary titles, including the monarchy, continues to apply only to children born within wedlock.)
Why did these changes occur? I don’t think it is any coincidence that the 1926 Legitimacy Act was passed in the year after the “fee tail” was abolished in English law. Underlying (and preceding) the changes in both law and public attitudes is a change in the nature and distribution of wealth.
As we saw in my previous post, wealth at the beginning of the 19th century remained largely a matter of agricultural land, owned by the hereditary upper class. It had been that way for centuries, and the entail was an intrinsic part of the resulting system of land ownership.
When wealth is held in the form of land (and society is thoroughly patriarchal in organisation), ensuring that ownership remains in the male line is not simply a matter of preference. It is imperative for ensuring that family wealth remains within the family, rather than being divided and dissipated down the generations. And the one thing you can’t do is allow a family’s wealth to be put at risk by the young master of the house fathering a son by a serving maid. Hence marriage and legitimacy play a crucial role in maintaining economic relations within society.
However, as we saw (both from Thomas Piketty’s charts and from the contrasting nature of wealth in Pride & Prejudice and Daniel Deronda), during the 19th century the balance of wealth in Britain shifted from agricultural land to other forms of capital, principally bonds.
Bonds are a much more flexible form of wealth than land. They can be bought from the issuer without having to wait for an aristocratic holder to sell, and they can be subdivided easily for distribution between different heirs. Thus, while a wealthy bondholder may prefer to see his estate go to his (legitimate) male heirs, provision for daughters or for illegitimate offspring can be made without threatening the integrity of the underlying property. So the economic imperative for legitimacy is reduced. It is therefore unsurprising that legitimacy therefore came to be emptied of both its legal meaning and its moral force. It’s equally unsurprising that legitimacy continues to be relevant to forms of “property” that cannot, by their nature, be subdivided – namely, hereditary titles.
Another factor that undoubtedly played a role was the growth in the use of trusts. Trusts enabled wealthy families to protect their riches from dissolute heirs, while allowing greater flexibility to the trustees than was possible under the fee tail. Thus a family trust could achieve the objective of property preservation, without the manifest injustice to women that drives the plots of Austen’s novels and (to a lesser extent, as befits the changed economic circumstances of the 1860s) Daniel Deronda.
So once again, the message is: follow the capital.