Was Jane Austen (Gasp!) Wrong About Entails?

Was Jane Austen (Gasp!) Wrong About Entails?

There are certain historical inaccuracies which often pop up in Pride and Prejudice variations which catch my eye when I come across them, mostly because I tend to find them annoying. No one is perfect—I certainly do not get everything right. But with the awesome power of the internet, we, as authors, should be able to get most of it right, especially those subjects which are easily researched. Some previously prominent errors, such as the idea diners at Regency dinner parties would be seated by place settings rather than by precedence (which was prevalent in Victorian times but not during the Regency era), have largely disappeared in recent years. Others, such as inaccuracies concerning mechanics of entails still show up frequently. It is the entail I thought to discuss today.

In planning for this post, I did some research rather than spouting off what I knew (or thought I knew) and potentially getting it all wrong. Nineteenth century English land law is not a topic one will find in great abundance, even with the power of the internet. There is a paucity of information no matter how hard you look, and as I am not a lawyer, deciphering what is available can be difficult. Having said that, I found more than I expected, for I found that while I am right about entails in general, I, and many others (including Jane Austen herself!) are wrong for other reasons. My apologies in advance as this will be a long and involved post. But it’s important to share what I learned, and to explain why I think it both matters and doesn’t matter to the plots of our favorite books.

The most interesting and complete source I discovered in my research is a paper entitled: A Funhouse Mirror of Law: The Entailment in Jane Austen’s Pride and Prejudice by Peter A. Appel of the University of Georgia. I have included a link below, and though I will attempt to summarize what I’ve learned, I’ll note again that I’m not a lawyer and may have misinterpreted some of this information, despite my best efforts. This paper is not by any means my only source, but I will paraphrase what it taught me in the latter half of this post. If you want the full explanation, how it relates to Pride and Prejudice along with the author’s conclusions, I suggest you go there.

First, let’s talk about the entail itself. Entails were created for several reasons, the chief among these being to ensure dynastic succession and to prevent an estate from being broken up, sold, or run into the ground by profligate masters. The basic tenet of an entail is to ensure the property is passed down by rules of primogeniture, or in other words, from father to son or other male heirs. Where this runs into issues is when there are no male heirs remaining to inherit. When this happens, a male heir from another line must be found based on certain conditions. By the laws of the time, males were always preferred over females, though the notion that females could not inherit is erroneous. But that is a discussion for another time. For the purposes of an entail, the heir is always male.

There are a few rules which must be understood for an entail to be portrayed correctly, but for the purposes of this post, I’ll focus on one. That is the concept of “male heirs of the body.” Basically, what this means is that descendants of the person who enacted the entail are the only ones who can inherit, and they must be in an unbroken male line. This is very important and is the rule I see broken most often.

For example, let’s assume that the master of Longbourn, A, created an entail on his property. If A had a sister, Z, none of Z’s descendants could inherit the property, male or female, because they are not heirs of A’s body. The same follows for any brothers A might have had. Thus, only his descendants could inherit. Let’s say A had two sons, B and C, and a daughter, D. The only heirs who could inherit in future generations were the descendants of B and C, and not D’s children. This is because an entailed estate could only be passed down in a direct male line. Unlike ancient royal families, where the son of a branch of the family descended from a woman could become king, entail laws did not allow this. Thus, if B’s family eventually died off, or all direct male heirs died off, the estate would devolve to C’s direct descendants, again as long as they were descended in a purely male line.

As an aside, this brings up an interesting point regarding Pride and Prejudice itself. By these rules, Mr. Collins must have been a direct descendant through a male line—otherwise, he could not have been Mr. Bennet’s heir. The most likely possibility for the difference in surnames is that Mr. Collins’s descendant married into another family and changed his name to that of his wife. This was common in those times, especially when a son of one family was marrying into another family of greater consequence or prominence in society. It was also prevalent when an estate was unentailed, a daughter was the heir, and her husband changed his name to ensure the family name continued as a condition of their marriage. The change of name is immaterial—he would still be a direct descendant of the estate in question and be eligible under the entail.

This begs the question of what happens if there are no more direct male heirs before the term of the entail has passed. It’s the one question I’ve not been able to answer satisfactorily in my research, though the possibility must have been understood and accounted for. What I’ve typically done in this situation is to assume the entail was broken and that the last master of the estate could leave it to whoever he chooses. While this seems to make sense, I cannot claim it is historically accurate. It is equally possible, as a friend of mine suggests, that an estate without a legal claimant would have devolved back to the crown.

Now that we have dealt with the rules of the entail, that should be all we need to know, right? Not so fast. This is where a nasty can of worms gets opened. Entails were common enough, but by the time of the Regency, they were archaic, and were only used in conjunction with a stronger legal mechanism. By itself, an entail’s fatal flaw was the use of a legal process called “common recovery.” If an estate was entailed, the current master (AKA Mr. Bennet in the case of Pride and Prejudice) could “bar” the heir from inheriting using a simple legal procedure. Once that was completed, Mr. Bennet could have then sat back in his library, sipped his port and read his books, and once he was gone pass the estate to any daughter (or all of them) he chose, thereby assuring their futures.

Let that sink in for a minute. Pride and Prejudice was built on an archaic legal device which had a fatal flaw. Do you feel those worms crawling around just yet? Why did Jane Austen set it up that way? The most likely explanation is that she simply did not understand the laws of the time. Land laws were murky at best, and many solicitors themselves likely did not understand them fully. It also seems likely most of her audience also did not understand the laws, or her work would have been derided as implausible.

The history of the entail losing its legal power is long and dates back to the English civil wars of centuries earlier. If a certain baron was rebellious and fought against the king, defeating him would do little, even if the king had him executed or killed in battle. Entail laws would kick in, his son would inherit, and could take up his father’s banner, and have the means and the motive to continue the struggle. In order to remove the power of a rebellious noble, the king needed a mechanism by which he could remove that which endowed the man with his power: his lands. Thus, common recovery was devised as a method to do this. The legal implications of common recovery are rather foggy and its legality questionable as it was essentially a coercive land grab. But by Regency times, it had become precedent.

As an aside, there is an interesting dichotomy between English and Scottish law on the subject of entail. The English law, as I have said, stated that an entail could be broken, and the heir barred from taking possession of the estate using common recovery. By contrast, Scottish law held that an entail was unbreakable until the middle nineteenth century. (Note that all entails historically had one out: the master and the heir could jointly agree to end it.) The Scottish law is not particularly relevant, but notable as different from that of England. (Marriage laws are another example, which is why Gretna Green was such a popular destination for the young and foolish.)

By Regency times, another method had been devised to ensure estate integrity and prevent it from being sold off or broken up. This method was called “strict settlement.” In a basic sense, strict settlement ensured that the master of an estate did not have full control over it. The future master of the estate would be set up as a “life tenant” of the estate with certain limitations on what he could do and could not do. Thus, rather than being an outright owner, he would have only the tenancy of the estate as long as he was alive. In this manner, a landowner could ensure the estate remained intact for future generations, and could choose his own heir if he only had daughters (either one of his daughters or a more distant relation who would care for them if necessary).

Why would the heir agree to this? For several reasons. First, the legalities were difficult to understand, and as the conversation would likely not be well understood, the son might agree based on the advice of his father. An agreement could also be reached because the heir was a dutiful son, because he wished to have done with it and get on with his life, or even because of the threat of being barred from inheriting. Furthermore, this legal discussion was likely one which a man would have only twice in his life—once as a young man with his father, and again as a father with his son. It’s not the sort of thing that would come up on a daily basis. A profligate son could be reined in or passed over entirely in favor of a younger son, or even a daughter using this procedure. Even if a profligate son resented his father for trapping him in a life tenancy, there was no way for him to break it.

While it was technically possible for a strict settlement to disinherit female descendants, it was almost never done. Provisions would usually be made for younger sons and daughters of the family estate using the available capital of the estate. Strict settlement benefitted all the members of the family rather than just the heir.

There you have it. I hope I’ve been accurate and portrayed the legalities properly. If you wish to read a discussion of Pride and Prejudice as seen under the lens of this information, go to the essay I referenced above, which you can find here, as I will not go into that discussion. Be prepared, however, to read it several times to understand it completely. (I still don’t grasp it completely, and I read it at least 3 or 4 times!)

The question then becomes, should we change the way we write these adaptations? Possibly. I have a few ideas of how this could be used in the plot of a book, and you may see it show up at some time or another. I think it is important to understand historically accurate facts and to utilize them whenever possible, though the act of writing fiction does give an author a certain poetic license. While the creative use of anachronism is useful and enjoyable at times, inserting inaccuracies into a plot because of ignorance is irksome for the reader.

Ultimately, however, I will argue this mistake concerning entail law doesn’t really affect how we enjoy Pride and Prejudice adaptations. The reason is that it can be easily argued that land laws were convoluted and not well known, and ignorance is an easy card to play. Additionally, if Pride and Prejudice had taken place in Scotland, or two centuries earlier in England, it would have worked out exactly the way Jane Austen wrote it from a legal sense. Finally, there has been so much written on this subject by authors such as Trollope and Heyer (or Lathan, Jeffers, and Silkstone, et al!) that it can also be argued that the use of an entail as an unbreakable contract is a “fictional legal precedent.” Yes, I understand that’s nothing more than sophistry. But it’s worked for a long time now. Who am I to overturn the apple cart!

I hope you enjoyed this little trip into Regency legalese. It was eye-opening for me!

20 Responses to Was Jane Austen (Gasp!) Wrong About Entails?

  1. My comment didn’t post. No, Jane didn’t make a mistake. By the regency the concurrence of a man and his adult oldest son seems to have been necessary to bar an entail. Everything I have read shows that a son was necessary to bar an entail. The Duke of Devonshire and others had to get private bills through Parliament to sell entailed land in the 19th . Too many stories abound of men not being able to sell entailed property because they had no sons for me to believe it was something a man without a son could do. Mr. Bennet’s brother in-law was a solicitor and would have informed him how to bar the entail if it had been possible. he would have done it to save his wife’s nerves.– and to keep Mr. Collins from having it.

    • Hi Nancy. I’m going to assume you authored both this comment and the one below and respond once.

      I’d be interested to know your sources, as my understanding of entails before I undertook this research was exactly as you stated. If there is conflicting information, I’d like to look at it. Having said that, I’d be more likely to trust someone familiar with the law, rather than authors who write stories. We’re in the entertainment business, not professionals, though we try to get it right as much as we can. I can easily see how an author might write something incorrect and have others follow that author’s example without realizing it’s wrong.

      As for the information about common recovery and strict settlement, it comes directly out of the article I mentioned. The link is in the post. He also references other articles by other authors in which they discuss the discrepancy between the laws of the time and P&P. For a greater understanding of his points rather than just my attempt to paraphrase, go directly to the article. It’s worth the read.

  2. I keep reading that Mr. Bennet could have broken the entail by a common recovery. However, people keep forgetting the mention of a son. I know it is thought that a son could inherit and make sure his mother and sisters would be cared for. However, many law books say that a man and his adult son could bar the entail. The incumbent couldn’t bar the entail when he didn’t have a son because he would be taking the property from another. However, if he and his adult son barred the entail , they could sell parts or make other arrangements. usually, it was thought that the properties would be put into another entail or tied up in a marriage settlement when the son married. An adult son was needed to bar an entail. Nothing I have read says that Mr Bennet could have done it alone. Lord Donegal had to wait until his oldest son was of age. All the reports I have read of it say that it was a man and his oldest son who was at least 21years of age.
    Jane Austen wouldn’t have made such a mistake and Mr Bennet wouldn’t have sat around doing nothing , especially when his daughters were old enough to marry, if he could do it alone. Remember his brother in law was a solicitor.
    Some critics have said that Jane Austen must have meant a strict settlement and not an entail which would account for the fact that Mr. Collins had a different surname. As the end result is the same I don’t know that it matters much. Of course, a man and his adult son could bar an entail but couldn’t change a strict settlement/.
    People were always changing names when they married. men and women changed surnames for legacies or at marriage.
    Whether strict settlement or entail governed the property, it could only go to a son of Mr. Bennet. If no son was born it returned to the Collins’ family without a hint of entail.
    I once imagined, Mrs. Bennet dying of too much cheer at her daughters being married and Mr. Bennet marrying Mary Crawford who presented him with 3 boys.
    Jane Austen didn’t make a mistake about this. Neither did she make a mistake about the apple blossoms as someone has proved in an essay.

  3. Thanks Jann for this great info.
    How fortuitous, I was just reading about entailment a week ago as I was curious how it can be broken or legally nullified.
    One thing I wanted to speculate why Ms Austen made the entailment as is… aside from not having full knowledge of it (I can easily see how the males at that time concealing facts about entailment as there had been gender biased – as shown why females don’t go to certain Universities nor take up certain professions at that time). It might also be to show how lazy Mr Bennett is. As smart as he is, one could expect he would investigate or research about it (Fight it or find loop holes).
    There was a variation that I read that the entailment was put in place by Mr B’s father because Mr B married Mrs B. I can also speculate Mr B just wanted to honor the wishes of his father (since he had disobeyed him and he regretted his decision to disobey him)…

    • Good timing then! The lazy aspect is one thing, but this goes way beyond that. I suspect the most likely reason is just a lack of knowledge on Jane Austen’s part. I think I’ve read the one you mentioned about Mr. Bennet’s father instituting the entail.

  4. Thank you for this information, Jann. It amazes me how convoluted laws can get. Add legalese, and you have to have attorneys to explain everything. I’m keeping your post in case I ever lose my marbles enough to write about it. At least I would have something to fall back on. 🙂

  5. One reason I enjoy JAFF is the historical journeys many of the stories and authors have sent me on. I knew little of English history when I started reading JAFF and can now discuss various wars, historical events, and historical figures with reasonable intelligence. Many of my favourite JAFF stories have been the inspiration for extensive research. I thank you for taking the time and effort to research this topic and for sharing it with us.

  6. Another possibility is that JA did know about common recovery, but used the entail as another subtle way to say that Mr. B was a less-than-ideal parent and even more indolent than perhaps we thought. I guess we’ll never know! Thanks for the post.

    • That is possible, but as the author of the article suggests, it’s more likely that she simply did not know. If he had an out which would protect his family, it’s hard to imagine Bennet would not take it, especially after Elizabeth refusing Mr. Collins. He must have known at that point that the likelihood of charity from Mr. Collins was virtually nil.

  7. Thanks for sharing your research on entails. I didn’t know about common recovery before and would love to read a variation where Mr. Bennet uses it so that Mr. Collins does not inherit.

  8. I don’t understand legalese very well but it sounds like people had to have an heir preferably a son to pass the estate to. Interesting post.

    • None of this really mattered if they didn’t feel it was necessary to ensure that the estate was passed down in an orderly fashion in a legal sense. Lady Catherine suggests in P&P that an entail was not thought necessary in the case of Rosings, and I’m sure there were many situations in which strict settlement was not thought to be required.

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