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Property Law in Jane Austen's Pride and Prejudice:

I recently based part of my Property final exam on Jane Austen's Pride and Prejudice. Generations of English lit professors have spilled barrels of ink over this book; but, as far as I know, most of them haven't placed much emphasis on the fact that the plot hinges on a point of property law.

The reason why it is so important for Mr. and Mrs. Bennet's five daughters to find wealthy husbands is that they cannot inherit their father's estate, since it is subject to the fee tail - a now archaic form of property estate that was required to pass through the male line. As a result, upon Mr. Bennet's death, his land (which forms the overwhelming majority of his wealth) will go to his nearest male relation, the despicable Mr. Collins. In the early nineteenth century, few women could acquire significant wealth other than by inheriting it or marrying into it; thus the Bennets' predicament. As Austen explains in Chapter 7:

Mr. Bennet's property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation; and their mother's fortune, though ample for her situation in life, could but ill supply the deficiency of his.

This plot device is far from the only property-related issue in Pride and Prejudice. It is striking that nearly all the villains in the story (Lady Catherine de Bourgh, Mrs. Bennet, Mr. Collins, and others), are motivated in large part by a desire to acquire valuable landholdings for themselves or their children. In another part of the story, Austen censures big landowners for looking down on merchants who make their living through trade rather than from income derived from their landholdings. Similar negative views of big landowners appear in several of Austen's other novels, especially Mansfield Park and Persuasion. On the other hand, Austen wasn't completely negative in her attitude towards the landed gentry. The good qualities of one of the key positive characters in Pride and Prejudice are first revealed through the care he bestows on his estate and its tenants.

I'm not going to argue that an understanding of property law is essential to your appreciation of Jane Austen and her work. But it can certainly help! Indeed, property law is probably second only to criminal law as a legal influence on great literature. Yet another reason to study Property (not that we need any more:))! You don't see too many great novels that feature legal issues in corporate law or civil procedure.

UPDATE: I should note, for those who have expressed concern about this issue, that the final exam in question is over, and that in any event knowing that the characters are drawn from Pride and Prejudice would not help anyone answer the questions I based on them; the property issues in the question are not the same as those in the actual novel (unfortunately for the students, the ones on the exam are more complicated:)).

Bama 1L:
If you consider Collins "despicable," then how do you describe Wickham?

Austen also includes rights of presentation, which I suppose we now meet only through literature.
12.11.2007 1:36am
MB88:
So wait ... did you write an exam question about fee tail?
12.11.2007 1:56am
Ilya Somin:
So wait ... did you write an exam question about fee tail?

No.
12.11.2007 2:07am
Ilya Somin:
If you consider Collins "despicable," then how do you describe Wickham?

I didn't include Wickham in the post because if I did people would accuse me of spoiling the plot. But I think it's pretty obvious that Austen intended to portray him as even worse than Collins (though with somewhat similar motivations).
12.11.2007 2:09am
U.Va. 3L:
Interesting. The Wikipedia article says fee tail is still legal in DE, RI, ME, and MA. Is there a potential conflict between such provisions and, say, the takings clause? (I.e., under a theory somewhat like Shelley v. Kraemer, a court that enforces a fee tail provision is depriving the property owner of his right to sell the property without just compensation?)

If that's crazy, please ignore me. Finals outlining and all. ;)
12.11.2007 2:18am
Rabbit:
I hope all of your students have already taken the exam and that there were no postponements or reschedules.
12.11.2007 2:20am
BillW (mail):
Ilya Somin: "... nearly all the villains in the story (Lady Catherine de Bourgh, Mrs. Bennet, Mr. Collins, and others), are motivated in large part by a desire to acquire valuable landholdings ..."

I wouldn't describe either Mrs Bennet or Mr Collins as "villains", and Collins certainly isn't seeking more property. His first appearance is when he comes around to marry one of the Bennet girls, evidently feeling obligated to provide for his cousins in so far as he can. He's a toady to his patroness, but "despicable" fits another character far better.
12.11.2007 2:45am
Duffy Pratt (mail):
Also, even if the Bennett's had had a son, that wouldn't necessarily have gotten the daughters off the hook. How often in English literature does the eldest son ruin the estate by getting into debts, etc...? And there is also the possibility that the son would not take care of the sisters for other reasons. Mrs. Bennett would have been desperate for rich suitors for her daughters no matter how secure the estate was.

The entailed estate was also a driving force in Mansfield Park. Since the estate was entailed, Edmund, as the second son was forced to go into the clergy. When it looks like the eldest son might die, leaving Edmund with raised expectations, his fiancee betrays her true colors, and Edmund is outraged.
12.11.2007 2:53am
Duffy Pratt (mail):
Oh, and BTW, in John Caldigate, by Trollope, the outcome turns on admissibility of evidence (expert testimony on a postmark), and if I remember correctly, some questions of choice of law (English or Australian with regard to the validity of a marriage ceremony).

And, its been a while since I've read it, but I think The Way We Live Now raises some questions of corporate formality. I could be off on this, because I don't remember exactly the nature of Melmotte's swindle.
12.11.2007 2:58am
tsai:
I've always wondered what it means to have an "estate of two thousand a year." How exactly is the income generated?
12.11.2007 3:02am
Duffy Pratt (mail):
It would depend on the nature of the estate. With some people, it would be nothing more than passive investments that would bear interest of say 3-4%.

For landed estates, income would primarily come from tenant's rent. It could also derive from granting rights to certain uses of the land -- cutting timber, hunting, fishing. And the landholder might also be entitled to some profit sharing from businesses in the villages on the estate, again depending on the area.

Bennett's estate, as a fee tail, was of course in interests in real property. So his income almost exclusively would come from the rents and other forms that I mentioned. His wife's income would have been tied up in whatever settlement was made upon their marriage, and is more likely to come from passive investments.
12.11.2007 3:30am
MB88:
No.

Well, that's good.
12.11.2007 4:50am
Mr. Liberal:
Well, Property Law, like Criminal Law, is very visible. But that does not make necessarily make them more important to literature, just more visible. The choices made in Corporate Law or Civil Procedure surely have a large effect on the structure of our society. Who would doubt that the so-called "American rule," requiring the winner to pay their own litigation expenses, has a large impact on litigation patterns and thus also how we choose to handle our conflicts. Or that decisions that we make in corporate law effect corporate behavior, which in turn also affects all of our lives.)

A further point. Corporations surely were not very important at the time of Jane Austen's book. Or, maybe the lack of them was important, but we have a very hard time seeing the importance of that which does not yet exist. That takes too much imagination.

What about Civil Procedure? Did the obscure pleading requirements in place in England at the time have any affect on power relations between different classes of citizens?

Overall, I would agree that Property Law is more important than Corporate Law or Civil Procedure in Pride and Prejudice. But, I think the degree of importance can be overstated. And, I think that the importance is more equalized as we move to more modern literature.

One final point. Property Law plays a role in Pride and Prejudice, but, really only in a very simple way. I am not sure that anything one learns in a Property Law course would in fact give one a deeper understanding of the novel.

Yes, of course Property has always been important. The fact that some people own things, exclude others from using those things, and use things to exert influence over others is of course immensely important. However, most often, the more obscure legal rules (precisely the ones one would need to take a course in Property Law to better grasp) that govern property are not central to this narrative. Instead, the rules that anyone can very easily grasp (like the idea that there exists a law allowing only male relatives to inherit) seem to be central.

I would suggest that what perhaps one learns in an MBA course might be more useful to understanding property in action than what one learns taking a course in Property Law. In my view, if you are really interested in property, you are better off learning about economics, finance, business, sociology, anthropology, psychology, and history than you are learning about the more intricate and obscure details of law.
12.11.2007 5:15am
Mr. Bingley (www):
As has been noted, Mr. Collins is naught but a pompous toady and Mrs. Bennett is certainly not a "villain" in any sense of the word; oh, a silly, vain, impetuous, short-sighted woman, obviously. But villain?

And I'm not saying that because she's my Mother-In-Law and Christmas Dinner is coming soon.

Really.
12.11.2007 8:05am
Temp Guest (mail):
Some other related points -- one of which helps a great deal in understanding Thomas Hardy's novels. The evolution of the English Common Law in all its aspects from Magna Carta on was very much a process dominated by the gentry, i.e., those with land enough that they did not have to work for a living. (This, for example, explains the importance of trespass in Common Law.)

In England the yeoman class was very small and had little impact on the law. The nobility was powerful but also small. The gentry -- and its unlanded sons who went into politics, the law, the clergy, and the military -- very much dominated English law and government. They also dominated the countryside, because most country residents in England were either the gentry's hired labor or tenants (either at-will or on extended lease) or supervisory staff. This fact, and its social ramifications form the background for all Thomas Hardy's novels, e.g., the complexly changing interactions between Bathsheba and Gabriel in Far from the Madding Crowd.

Interestingly, as Hobsbawm and Rude point out (Captain Swing, Phoenix Press, Eric Hobsbawm and George Rude) in Europe most land was held by small landholders practicing subsistence farming. This large peasant class lacked political power, since they were too busy surviving to involve themselves in law or politics. This may be part of the explanation why relatively democratic and liberal government arose so early and so organically in England as compared withn the rest of Europe.
12.11.2007 8:30am
karrde (mail) (www):
It's a little murkier in my mind (and quite probably in the narration), but I believe that Sense and Sensibility had several turns of fortune decided by the intersection of property law and social attitude.

The relations between John Dashwood and his step-mother step-sisters are governed by his control of the inherited property. The animosity between Lucy Steele and the sisters of Edward Ferrars exists because they see her as an importunate gold-digger. (She unexpectedly links up with the younger Robert Ferrars, whose inheritance was made almost-certain by the engagement between herself and Edward...which makes her status as gold-digger certain. Despite the fact that the fortune was settled onto Edward almost immediately afterwards...)

But I suspect that I only point out the obvious.

Of course, even in a work of fiction devoted to solving crimes, Property Law may play as much of a role as Criminal Law. The much more recent English author P.D. James used Property Law and inheritance as a significant plot point in several of her criminal dramas/murder mysteries.
12.11.2007 9:19am
New Pseudonym (mail):
Even Wikipedia points out that Pride &Prejudice must refer to a fee tail male, a special form of fee tail (there were heiresses in England -- they inherited the estate in the absence of male heirs only, though). However, property professor, Wiki also says that an owner in fee tail could convey a life estate. It's been 20 years, but as I recall (and my Norman French is rusty) shouldn't that be a life estate per autre vie? If B outlives A, doesn't Blackacre revert to the heir of A?
12.11.2007 9:46am
LizardBreath (mail):
There's an even better Property issue in George Eliot's Felix Holt. The owner of a property in fee tail could alienate it from his own descendants, but not from heirs not his descendants. (That is, A owns Blackacre in fee tail. A has a son, B, and a brother, C. A sells his interest in Blackacre to D. A then dies, survived by B and C. D retains Blackacre. B dies childless, survived by his uncle C. Blackacre reverts from D to C -- A was entitled to alienate B's interest in Blackacre, but not C's interest, and after B's death, C was A's next heir.)

Exactly this situation happens in Felix Holt, except with the lapse of a few more generations -- an entailed property was alienated from one line of a family, which continued on, losing money and social status, for generations. Finally there's only one representative of the line left, a poor paperhanger, and he dies. Immediately on his death, the valuable property reverted to a distant cousin (female -- this wasn't a fee tail male), with no knowledge of it or expectations of any inheritance.

I read the book while taking Property, and enjoyed it immensely, mostly because I can't imagine that plotline being comprehensible on any level beyond "And then a miracle occured" to most readers.
12.11.2007 9:58am
Peter Wimsey:
It's not property law as a whole that literature is fascinated with; it is specifically interested in the law of inheritance. No one seems to care about inter vivos transfers, or whether tenants are committing waste - but add a large inheritance and a wealthy relative and you have a potent (if perhaps overused) plot engine.

Although sadly in decline, there used to be a substantial body of English (specifically, I think) literature that dealt with advowsons - a field that has sadly declined.
12.11.2007 9:59am
srg:
" It is striking that nearly all the villains in the story (Lady Catherine de Bourgh, Mrs. Bennet, Mr. Collins, and others), are motivated in large part by a desire to acquire valuable landholdings for themselves or their children.'

I agree with the other commentators - these are not villains, they are comic characters who amuse us and for whom we sometimes feel contempt.
12.11.2007 10:03am
Craig Oren (mail):
Yes, there are four American states that still recognize the fee tail. But in those states the holder of the fee tail can convey a fee simple. (Yes, I know how odd that sounds.) So A, the holder of a fee simple, can convey a fee simple to A's secretary, and then have the secretary convey a fee simple back to A. This hocus-pocus arose in England as a way of letting the present owner "dock the tail."

I actually occasionally put "fee tail" questions on my exam. My only object is to make sure that the students are aware of how a conveyance "to A and the heirs of his body."
12.11.2007 10:19am
atticus finch:
In To Kill A Mockingbird, Scout helps defuse a lynch mob situation by talking to one of the mob about his fee tail situation.

Of course, that raises the question of how Atticus violated attorney-client confidentiality by explaining the particulars of an individual's legal situation to his daughter . . .
12.11.2007 10:56am
lewis:
Charles Palliser's excellent The Quincunx is driven by British legal theories both of inheritance and of the distinction between law and equity.
12.11.2007 11:14am
Handsome Dan:
What kind of ridiculous law school forces Property on 1Ls in the first semester? Ugh.
12.11.2007 11:46am
Ilya Somin:
What kind of ridiculous law school forces Property on 1Ls in the first semester? Ugh.

The students in question are 2Ls.
12.11.2007 12:18pm
Flash Gordon (mail):
What kind of ridiculous law school forces Property on 1Ls in the first semester? Ugh.

All of them, don't they? Doesn't one need a to first obtain a grounding in animals ferae naturae before one can proceed?
12.11.2007 12:24pm
Anderson (mail):
did you write an exam question about fee tail?

That would be in Criminal Law, I believe.
12.11.2007 12:29pm
ElizabethN (mail):
If you want interesting property questions from literature, I would strongly recommend Mr. Scarborough's Estate, by Anthony Trollope. The primary plot involves the raising of money by post-obits on an entailed estate and the subsequent declaration that the heir is actually illegitimate. It also includes a chapter which illustrates the English foxhunting rules for "ownership" of a fox that has not yet been caught.
12.11.2007 1:10pm
Cornellian (mail):
Mr. Collins was more pathetic than despicable. He was not malicious and was doing what was considered entirely respectable under the standards prevailing in his day.

I also second the vote for Anthony Trollope. His descriptions of legal process are amazingly good - better than anything I've ever seen from any other non-lawyer. See, e.g. The Eustace Diamonds, which turns heavily on a dispute about ownership of property (including said diamonds) and even includes a written legal opinion on the subject.
12.11.2007 1:34pm
Chris Newman (mail) (www):
So you're teaching the fee tail but dropping (or so you suggested earlier) the RAP? Should we surmise from this that you think understanding the plot of Pride and Prejudice is more important than understanding the plot of Body Heat?
12.11.2007 2:22pm
Q:
New Pseudonym - you are correct that the estate in question is the fee tail male, not the regular old fee tail (the latter only requires that the land pass to one's issue/actual descendents). You are incorrect, however, that an owner in fee tail can only grant a life estate pur autre vie. The fee tail is of potentially infinite duration, and so the fee tail owner can grant someone a regular life estate (an estate for a life's duration is lesser than one with potentially infinite duration).
12.11.2007 2:33pm
Ilya Somin:
So you're teaching the fee tail but dropping (or so you suggested earlier) the RAP?

I spend about 2-3 minutes in class on the fee tail, which is all that it requires to get students to understand what it is. To teach the RAP effectively requires vastly more time - time that is better spent on other things.
12.11.2007 4:34pm
CJColucci:
Am I being too cynical in pointing out that Elizabeth's attitude toward Mr. Darcy began to soften when she got a good look at Pemberley?
12.11.2007 4:35pm
New Pseudonym (mail):
Thank you Q. When I grow up, I want to be a conveyancer.
12.11.2007 4:45pm
Alan Gunn (mail):
My favorite example of property (or, perhaps, contract) law in literature is The Mikado, which turns on equitable conversion by contract. Toward the end, Ko-Ko and Poo-Bah have to explain to the Mikado why Nanki-Poo is alive, after they had described his execution (at the Mikado's order) in detail. They invoke a variation on the maxim that "equity regards that as done which ought to be done" by telling the Mikado that when he orders someone killed, that person is dead. A happy ending follows. I always feel a bit sorry for non-lawyers in the audience, most of whom probably don't fully appreciate Gilbert's inside joke.
12.11.2007 4:57pm
BillW:
CJColucci: Am I being too cynical in pointing out that Elizabeth's attitude toward Mr. Darcy began to soften when she got a good look at Pemberley?

A bit. Pretty much the first thing she'd learned about him was that he was really, really rich — £10,000 a year, if memory serves. What she learned at Pemberley was what he did with his money, and how he treated his sister.
12.11.2007 7:31pm
Duffy Pratt (mail):
10,000 a year was rich, but not as rich as the movies tend to make it out to be. Darcy was extremely wealthy for someone outside of the aristocracy, but he is not anywhere near the league of a Duke, for example.

Also, you are being too cynical about Elizabeth's impressions at Pemberley. She is certainly overwhelmed by the estate, but she is softened to Darcy because of the servants' prevailing attitudes about him. If he truly lived up to her ideas about him, the servants would not have been so glowing in their praise and admiration. Also, the care of the estate helps to show how seriously he took his duties as the master of the estate, which in part means how well he treated his tenants and servants.
12.11.2007 9:11pm
Detroit Law Student:
Good post, and I'm sure you were expecting this, but as a former grad student in Critical Theory and a current law student, I know that there are a decent amount of articles about law, property, gender and the Victorian novel. Try:

'Willy-Nilly' and Other Tales of Male-Tails: Rightful and Wrongful Laws of Landed Property in Northanger Abbey and Beyond; by Dierdre Gilbert

or

Patriarchy and Married Women's Property in England: Questions on Some Current Views; by S.M. Okin

It's a fairly developed field, although I think there's plenty of room for a JD holder to go back to an English dept. with loads of ideas.
12.12.2007 7:03am
markm (mail):
As to whether 10,000 pounds per year was "really really rich", consider this bit of wisdom from Charles Dickens, implying that 20 pounds a year was sufficient for happiness, if one budgeted carefully. Bennett's income was 100 times this, Darcy's 500 times.
12.12.2007 12:11pm
Duffy Pratt (mail):
Here's an interesting article on servant's wages in the late Victorian era. Please note that the chart is for the 1890's, about 90 years after Pride and Prejudice. Inflation then was nothing like what it is now, so I don't know exactly how one might compare the 1890 figures to what was happening in 1800.

According to this article, in 1890, Darcy's income was about the minimum one needed to maintain a large manor house. Assume that 80 years earlier, it was somewhat over the minimum. That's enough to make him rich. But, as I said before, he was still not in the same league as the 'really, really rich.'

In the U.S., during the Gilded Age, a millionaire was certainly rich. And a person could live happily on an income of a couple of thousand per year. To that person, of course, the millionaire is "really, really rich". But to the folks out in Newport, the Vanderbilts and the Astors, a regular millionaire wasn't even a blip on the radar. The same thing probably goes for Mr. Darcy.
12.12.2007 1:23pm
Yankev (mail):
British law (but alas not real property law) is featured in several of Patrick O'Brian's novels about Lucky Jack Aubrey, including admiralty, the British Articles of War, the technicalities of arrest for debt (including territorial jurisdiction in different parts of London), and the right of the Crown to impress civilians into the Navy. In Reverse of the Medal, one of the later novels in the series, the hero is framed, tried and convicted for an intricate manipulation of the stock market cooked up by foreign agents within the Admiralty.
12.13.2007 11:46am