#lawblr

@oldguardians making this answer a separate post because it’s kind of interesting*!

‘‘I cannot bear to hear that mentioned. Pray do not talk of that odious man. I do think it is the hardest thing in the world, that your estate should be entailed away from your own children; and I am sure if I had been you, I should have tried long ago to do something or other about it.’’

Jane and Elizabeth attempted to explain to her the nature of an entail. They had often attempted it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason; and she continued to rail bitterly against the cruelty of settling an estate away from a family of ve daughters, in favour of a man whom nobody cared anything about.”

(In the interest of not getting bogged down in legal minutiae, I’ll keep this pretty general. Please note that I am vastly oversimplifying some legal concepts here for the sake of explaining the issue clearly. If you’re an attorney/barrister/whatever, don’t @ me - I KNOW it’s all much more nuanced than this.)

Pride & Prejudice is set somewhere around 1811. In the novel, the Bennets’ ownership interest in the family estate is famously said to be “entailed” away from the Bennet girls in favor of their cousin, Mr. Collins. This is specifically explained to be because Mr. Bennet has no sons, and thus his estate reverts back to his closest male relative.

In the real world, entailment could (and usually did) work that way. But there is an enormous, glaring issue: English entailments have long been very VERY easy to defeat** through a remedy called Common Recovery. If Longbourn was truly entailed away from the female descendants, as the novel indicates, Mr. Bennet could have hired an attorney (his brother-in-law?) to start the Common Recovery process at any time. Within a few months, the court would render a judgment giving Mr. Bennet the property outright and free from any entailment, allowing him to leave the property to his daughters upon his death*** and make them independently wealthy women. And this wasn’t just a possibility - it was a very common legal mechanism that would have been almost expected of a gentleman interested in preserving his family’s comfort. There are hundreds of cases in the English Chancery records (featuring many families that were much less wealthy than the Bennets!) invoking this very remedy whenever fathers failed to produce sons.

So entailment makes no sense - it had basically no power over landowners by the Regency Period.

Let’s talk alternatives. In 1811, the primary way of keeping property in the male line was through another estate planning technique called strict settlement. To GREATLY simplify a complicated form of ownership, strict settlement had the present possessor of property always hold a life estate interest (they own it only until their death), with their male primogeniture descendants holding a remainder fee tail interest (read: eventual outright ownership upon their father’s death). Each generation of life estate owner would then force their young male descendants (the fee tail owner) upon their coming of age to give the young descendant’s unknown future male sons the remainder interest, retaining a life estate for themselves (which they would receive upon their father’s death). Thus the ownership system perpetuates down a male line of descendants, each generation demanding the same restrictive ownership system of their own children.

If you followed that - and I don’t blame you if you didn’t, as this is all very deliberately obtuse - you might think “wait okay. That kind of sounds like the Bennets’ situation. Austen called it an entailment but maybe it was actually a strict settlement!” Several academics have tried to argue that, but it also fails for several reasons:

(1) With the Bennets’ seemingly comfortable current income, strict settlement would have provided for significant lifetime income + dowries for Mr. Bennet’s female descendants. But in P&P, it’s made very clear that the girls’ only possible inheritance is a tiny amount from their mother’s side and nothing from their father’s. If they do not marry, they will be destitute. That is extremely unlikely and would be very shameful in strict settlement ownership..

(2) It would have been inconceivable for Mr. Bennet’s father to have forced him to benefit a cousin over his own descendants, even if they were women. One of the fundamental points of strict settlement was to avoid this outcome (aka to avoid the entailment system). People did NOT want a distant male cousin to inherit property simply because there wasn’t a primogeniture male descendant - they knew that if anything, their own female descendants could always produce a male heir in their marriages. Plus, Mr. Bennet’s and Mr. Collin’s fathers apparently hated each other (ref Mr. Collins’ initial letter) - why would Mr. Bennet’s father force his son to benefit the son of a man he himself hates?

(3) For many many other reasons, a strict settlement does not match how the family talks about/treats the estate in the novel. There’s literally a whole law review article on this topic (cited below), and I’ll defer to that for a full discussion.

So we’re left with two possibilities: the land is entailed, and for some reason Mr. Bennet isn’t willing to pay a small amount in attorney’s fees to undo the entailment for the enormous benefit of his daughters (extremely unlikely, robs the story of all its tension), or the land is subject to a bizarre + shameful strict settlement that goes directly against everything that would have been normal at the time, and none of the characters know that (makes no sense in the story).

And then, of course, there’s the truth: the “entailment” is simply a narrative device that does not reflect actual law or historical transfer of property at death, which is perfectly fine. Jane Austen was not writing a law textbook or even a legal drama. And her underlying point remains clear: Regency-era women were often in economically precarious positions and forced to marry to maintain their social and economic standings.

((If you do want a version in your head that works under the law, maybe we imagine that Mr. Collin’s father actually owned the home but was in debt to Mr. Bennet so he gave him some kind of strange lifelong leasehold interest with income from the property included. And then we ignore the passage saying Mr. Bennet having a son would have “avoided” the home passing to Mr. Collins + pretend that the family lied to everybody about the home being entailed to save face))

For additional reading, I highly recommend A FUNHOUSE MIRROR OF LAW: THE ENTAILMENT IN JANE AUSTEN’S PRIDE AND PREJUDICE by Peter A. Appel (linked). His analysis reflects my own reading of Regency inheritance law, and I think his conclusions are generally sound. There is significant other scholarship on this subject, but I find Appel’s work the most persuasive.

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* At least to me, who admittedly studies this for a living

** For fun War of the Roses reasons!

*** Or much more likely, to a male relative conservator/trustee for their benefit (probably Mrs. Bennet’s brother, the attorney)

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EDIT: yes yes I know Mr. Bennett is a negligent father. Please read the full article for a more thorough discussion of that: there’s a difference between being neglectful (not paying much attention and hoping it all works out) and downright cruel (deliberately creating a situation where your daughters WILL be homeless).

We know he is not cruel, and there is substantial textual evidence that he is not completely negligent. Upon Lydia’s “elopement”, he immediately leaves to deal with the problem and is shown to be highly conscientious of the economics and social politics of the situation. He also is implied to have discussed quite frankly with Elizabeth the economics of saving for their allowances and dowries, suggesting that is at least on his radar.

rainy days, reading whitman again, wishing to be near the sea… here we are again.