Persuasions #11, 1989                                                                                                                                                               Page 46-52

Land, Law and Love

Chicago, IL 

Up From Feudalism

The BBC miniseries version of Pride and Prejudice came out while I was in law school.  One of my professors told the class excitedly, “You have to watch ‘Pride and Prejudice’ tonight.  The heir to the entailment, Mr. Collins, is coming on to the scene!”

He was greeted by a roomful of blank stares.  Part of the reason for this is that law students do not admit to watching television.  But even if they did, they certainly would not watch anything remotely connected with entailment.  Law students fear and hate property law, and I was no exception.  When I did the research for this paper I was surprised to find that it is exciting and interesting – now that I don’t have to do it for a grade.

I only had to learn one date in law school.  Just one – but that one date strikes terror into the hearts of law students everywhere.  The date: 1066.  In 1066, William the Conqueror won the Battle of Hastings, took over the British throne and established the feudal system as the law of the land.  In so doing, he made England a united country and created legal systems that are still with us today.  We have to go back to 1066 to make sense of the entailment in Pride and Prejudice because many rules developed under feudal-system-controlled property law in Jane Austen’s day; some still do.  English property law is a patchwork of ancient rules which change very slowly, even where their usefulness has long since passed.

William asserted control over the conquered territory by awarding pieces of England to his followers.  This was a way of rewarding their services as well as assuring their future allegiance.  Under the feudal system, land was divided into estates under mesne lords.  There were various degrees of mesne lords.  The highest was “tenants of the crown” of which there were about 1,500 in 1086, when the Domesday Book was compiled.

The concept of “ownership” as we know it developed gradually over the centuries; in early feudal days there were only landholders.  Early land grants read something like this: “To George from John, who holds of Will, who holds of the King.”  As the land was broken up into smaller parcels, the list of names got longer, but it always ended with “who holds of the King.”  The grantors and grantees alike had certain rights to the land as against everybody else – except the King.

Estates rendered feudal duties, called incidents, in the form of taxes and, especially, military service.  Each estate was required to provide a given number of soldiers to the king on demand.  The number of soldiers was determined by the size of the estate and the rank of the lord.  Laws were directed toward the goal of assuring that these incidents, essential to the military and economic security of the country, were paid.1  The body of rules that evolved from this system came to be known as the common law.2

Legal Status of Women: The matches that the Misses Bennet and Misses Lucas yearned for and plotted for effectively deprived them of most of their legal rights.  Under feudalism, only one able to perform the feudal incidents could inherit – that is, one who could bear arms, so women could not inherit.3

By Jane Austen’s time, though women could inherit, they really did not have rights as far as disposing of their own property or making contracts.  This was particularly true of married women.  Single women, once they reached the age of majority, apparently had the same rights as men where property was concerned; the legal writers of the time are strangely silent on the rights of single women.  This may be because they simply were not contemplated in the law. This bit of wisdom comes from a property law treatise published in 1732:  “….. [a]n ancient Author has assur’d us, that all women, in the Eye of the Law, are either married or to be married; and their Desires are subject to their husbands.…”4  This makes more sense when we realize that at the time, the age of majority was 21, but the legal age for marriage was only 12 for women, 14 for men.5

At common law, married women could not dispose of their own property by deed or will because they were assumed to be under the coercion of their husbands.6  Blackstone put it this way in his Commentaries, written in the 1760s:  

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs every thing… for this reason, a man cannot grant any thing to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself….  If the wife be injured in her person or her property, she can bring no action for redress without her husband’s concurrence, and in his name, as well as her own: neither can she be sued, without making the husband a defendant…7  

Blackstone went on to state several benefits to the wife from coverture, as the wife’s condition during marriage was called.  For example, a husband was liable for his wife’s debts incurred both before and during marriage, as he was held to have adopted her condition along with her person.  He was obliged to supply his wife with “necessaries,” whatever that means, but not for more.  A wife would be held blameless for minor crimes, since, not being a separate person, she could not have committed them.  (However, this did not apply to murder or treason.)  Ever the gentleman, Blackstone concluded:  

[W]e may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit.  So great a favorite is the female sex of the laws of England.8  

(Widows, incidentally, were often treated as single women.  This was especially true of widows who were running businesses they had inherited from their husbands.  In those days of arranged marriages, some widows were arguably much better off after their husbands’ demise than before.)

Primogeniture:At common law, property passed under the system called primogeniture.  The eldest son inherited all real property; if he did not survive to inherit, the next son in line got everything, and so on.  The rationale for this was that, since a large parcel of land paid greater feudal incidents, and carried with it greater rank and prestige, it was desirable to keep the land in large chunks instead of breaking it up and giving some to each son.  Younger sons could inherit money, but not real property, so they generally went into the military or the church, and looked for heiresses to marry.  Hence Col. Fitzwilliam’s remark: “Younger sons cannot marry where they like.”9

Daughters, on the other hand, could not inherit until the family ran out of sons.  They were treated as a unit and inherited all of the property jointly.  Here, the rationale was that if there were only daughters, it was advantageous to break up the land, so that each might have a sizeable portion for a dowry, making them all marriageable.

Primogeniture technically applied only to land passing under intestacy, that is, when someone died without leaving a will, but it became deeply entrenched in English law and was used as a system for determining heirs in other kinds of property transfers.10 

TheFee Tail

Generally:What we would call ownership of land was created by a grant by will or deed in fee simple.  The language was as follows: “To A and his heirs.”  The land passed to the heirs as under primogeniture.

Many people preferred to give lesser estates, one of which was the fee tail.  The term comes from the French word tailler, meaning “to carve,” and perhaps refers to the fact that the estate was carved exactly as the grantor wished it to be.  It was created by language in a will or deed reading: “To A and the heirs of his body.”  This was a fee tail general; it limited inheritance to A’s biological heirs, cutting off collateral heirs such as nieces and nephews.  The fee tail male limited passage to the male line: “To A and the heirs male of his body.”  A further limitation, called a fee tail special, was also possible: “To A and the heirs male of his body by his wife, Z.”  This cut off any children by subsequent wives.11

Under a fee tail, if the grantee’s line ran out and there were no heirs, the land reverted back to the original grantor, because he had given away less than a fee simple estate.  This was further insurance that someone in the family would inherit the property.l2

Which brings us to the reason for entailment.  The main reason for entailing land was to keep it in the family.  Legally, ownership could only be in a person; but in the minds and hearts of the landed gentry the family was the true owner.  Also, estate taxes were levied for certain types of transfers, and the families tried to avoid these as the economy became increasingly money-based.  So devices such as entailments became early tax-avoidance schemes.13

The reason for entailing lands in favour of heirs male, apart from the obvious sexual bias of the times, was to protect women from fortune-hunters like Wickham.  During a woman’s minority, her lands were generally managed by her father.  But upon marriage, legal control of her lands passed directly to her husband.

Lands could be entailed in favour of heirs female as well, but this was very rare.  It may have been done from time to time as a sort of continuing dowry, especially in families where there were no sons.

There was a running legal battle for centuries between the Crown and the landowners over control of tenancies.  The Crown wanted control over who tenants were, how many soldiers were to be provided, who paid the taxes, etc.  The families wanted to decide for themselves who should take the land.14

For years the courts provided a way around the fee tail by allowing a tenant in tail to convey a fee simple estate as soon as he had produced an heir.  A group of barons got together and protested this freedom; and in 1285 the Statute de Donis was passed, which stated that in these cases the intent of the grantor must be followed exactly.  The fee tail estate was now not merely custom; it was protected by law.15

Taltarum’s case, in 1472, provided a way out – the common recovery, which we’ll talk about later.16

The form was already a dinosaur in Jane Austen’s day.  Blackstone himself recommended that it be abolished, citing as one reason that children became disobedient when they knew they could not be disinherited.17  When Lady Catherine remarks that “It [entailment] was not thought necessary in Sir Lewis de Bourgh’s family,”18 she is echoing the thinking of the times.

The common law favours free alienation, that is, the ability to give one’s property to whomever one chooses.  Lawyers soon devised methods of getting around entailments, such as the common recovery.  This process has been gifted with such descriptions as “an all-time high in legal hocuspocus” and “the rankest fictions in the history of the common law.”19  Without getting into too detailed an explanation, a common recovery was a collusive lawsuit, involving fictitious parties and false allegations, in which the property was converted into payment for a money judgment which was based on a nonexistent injury.20  Blackstone was against these legal convolutions; he said they were “not manly.”21

Why not just change the law? The common law in general was extremely resistant to change, and the upper classes understood the rules and knew how to make them work to their advantage.  Another, more sinister explanation is that, because these procedures involved a tremendous amount of paperwork, with multiple copies delivered to many different government offices, each with a stamp representing a filing fee, not to mention attorneys’ fees for drafting, copying and filing all of the documents, the lawyers and the government had no real interest in changing the law so drastically.  As one writer puts it, if you examine the list of documents required in one of these cases, you can really “feel the clammy handshake of Uriah Heep.”22

TheBennet Entailment:  Jane Austen tells us that the Bennet estate was “entailed in default of heirs male on a distant relation.23  The language for this type of entailment was: “To A and the heirs male of his body; and if there be no heirs, to my nephew, C.”  Mrs. Bennet complains that something should have been done about it.  As a lawyer’s daughter, she was doubtless aware of the common recovery.24  If Mr. Bennet had been tenant in tail of Longbourn, he could have used such a method to convey his property, possibly to his daughters, or in trust for their benefit.

However, Mr, Bennet was not tenant in tail of Longbourn.  We know this because the text says that if the Bennets had had a son, he would have been able to bar the entailment as soon as he came of age.25  This tells us that Mr. Bennet had a life estate under what was called a strict settlement.

There were other types of family settlements, such as marriage settlements, but this type of strict settlement worked like this: A son, coming of age, wanted to take the Grand Tour of the European continent, present himself at the London season, and in general live a more interesting life than could be found in the realm of riding to hounds and assembly balls.  In return for sufficient cash for his pursuits, he signed away his interest as tenant in fee tail.  A series of documents was drawn up, the effect of which was to settle the land on the father for life, remainder to the son for life, remainder in fee tail to his sons.  This moved the fee tail up one generation, since the son’s son would be tenant in tail and could do the same when his own sons came of age.  The process, like the fee tail itself, could continue indefinitely.26

This procedure in effect protected the property from any damage an undisciplined son could inflict.  The arrangement made everybody happy: the son, who was not otherwise entitled to any income from the property, got the cash he needed to sow his wild oats; the land stayed in the family; and even when he came back home to manage the estate, the land was protected from his inexperience, for he was now only a life tenant.

Life tenants had limited powers over the land.  They could not treat it as their own; they were restricted from mortgaging the land and from other uses. For example, a life tenant could cut timber for burning and building, but not for sale.  He could not commit waste, a legal term meaning any permanent change which damaged the estate.27

Since one man’s waste is another man’s improvement, life tenants and remaindermen were often at odds over the management of land.  These disputes sometimes wound up in court, and the courts could even apportion costs and benefits from changes in the character of the property.28 This may explain why Mr. Collins’ father and Mr. Bennet did not get along.29  One can easily imagine that an “illiterate and miserly” man such as Mr. Collins’ father30 would have something to say about nearly every change made to an estate he hoped one day to inherit.

Jane Austen tells us that if the Bennets had had a son, he would have “joined in cutting off the entail.”31  She uses these words because the son would have had no right to disentail the property until his father died.  If the family wished to bar the entail during the father’s life, the father and the son would have had to get together on the matter.  The father would probably have conveyed his life interest to the son, and the son would have conveyed a life interest back to his father, remainder to himself in fee simple.

Mr. Collins could not do anything about the entail during Mr. Bennet’s life either, because he had a future interest which was not vested.  “Vesting” is a legal concept which is hard to define; in this case it means that Mr. Collins had no right to take Longbourn and treat it as his own until Mr. Bennet died without having had a son.

Jane Austen tells us that the Bennets had despaired of having a son.32  However, at common law there was no such thing as menopause.  Both men and women were held legally able to have children until death.  As evidence for this rule, judges often quoted the example of Sarah in the Bible, who conceived and gave birth to Isaac when she was 90 years old.33

For a moment let’s speculate on other possible outcomes of the Bennet family story.  Suppose the Bennets did have a son, but that son did not live to attain majority.  The son’s interest would have vested at birth, and therefore would go to his (male) heirs.  If he died before producing a male heir, the Bennets would be right back where they started.  If, however, he managed to produce a son before he died, the son – Mr. Bennet’s grandson – would inherit the entailed interest and, like his father, could help Mr. Bennet disentail the property upon reaching the age of majority.

If the Bennets had a son, and Mr. Bennet died before the son reached majority, the result would depend upon the age and maturity of the son.  If he were nearly 21 and responsible he would probably be made trustee until his majority, when he would gain his full rights as tenant in tail.  If he were younger, the court would appoint a trustee, such as a lawyer or responsible family member, to manage his interest until he reached majority.  In either case, being the tenant in tail, he could disentail the property himself if he wished upon reaching age 21. 

Property Law Reform

Rapid change in the property laws was resisted for a long time.  Those most concerned hated to see the old system die.  Change did finally come about only because it was felt that a breakup of the great estates would prevent a revolution.34

The Fines & Recoveries Act of 1833 provided that a tenant in tail could convey a fee simple by deed.35

The Married Women’s Property Act of 1882 provided that married women could acquire, hold and dispose of property “as though they were single.36

The rights of life tenants under strict settlements gradually increased through a series of statutes in the 1880s.37

Entailment was abolished by statute in 1925.38

Primogeniture hung on despite several attempts to abolish it by statute; it too was finally abolished in 1925, this time without controversy.39

In the U.S.: Entailments and, for that matter, primogeniture in general never caught on here.  The English system smacked of the landed gentry and was considered anti-democratic.  Thomas Jefferson, when he drafted the Virginia constitution, was one of the first to recommend that entailments be abolished.40

Most states now have statutes either abolishing the fee tail or converting an attempted fee tail estate into a fee simple.  (It had to be abolished because many states incorporated common law rules into state law, even those that may have been reformed by statute in English years before.)41


The fee tail estate does sometimes crop up in old wills and deeds.42  Landed families used outmoded language, often drafting handwritten wills using an old copy of Blackstone’s Commentaries.  This is especially true in the Deep South, which lagged behind the rest of the country in property law reform.  You may remember that in Harper Lee’s To Kill A Mockingbird,43 one of the father’s clients had an entailment case.  The little girl asked her brother what an entailment was, and he told her seriously that it was “a condition of having your tail in a crack.”

I’m not sure that explanation makes any less sense than the real one.  


(References from Pride and Prejudice, abbreviated P&P, refer to the Chapman edition.) 

1 A. W. B. Simpson, A History of the Land Law, 2nd ed, (Oxford: Clarendon Press, 1986), pp. 2-5. 

2 J. Dukeminier and J. Krier, Property (Boston: Little, Brown & Co., 1981).  Contains general discussion of feudalism. 

3 The Laws Respecting Women (New York: Oceana Publications, Inc., 1974; reprinted from the J. Johnson edition, originally published in London, 1777). 

4 Preface to A Treatise of Feme Coverts, or The Lady's Law (London: Garland Publishing, Inc., 1978; reprinted from the 1732 edition, printed by E. R. Nutt and R. Gosling, London). 5 Ibid., p. 25. This continued to be the law until the Age of Marriage Act, 12, 13 & 14 Geo. VIc. 76, sec. 2 ( 1929), which set the legal age of marriage at sixteen for both men and women. 

6 Thomas Barrett-Leonard, The Position in Law of Women (Littleton, Colorado: Fred B. Rothman & Co., 1983; reprinted from 1883 London edition), p. 70. 

7 I Blackstone Ch. 15, Sec. III (5th ed. 1773). 

8 Ibid. 

9 P&P, p. l83. 

10 Simpson, p. 284. 

11 A. James Casner and W. Barton Leach, Cases and Text on Property, 2nd ed. (Boston: Little, Brown & Co., 1969). 

12 John E.  Cribbet,  Property (New  York:  The Foundation Press, 1962), pp. 47-49. 

13 Simpson, p. 22. 

14 Ibid. 

15 Statute de Donis Conditionalibus,  13 Edw. I c. 1 (1285); see Casner and Leach, pp. 275-77. 

16 Taltarum's Case, Y. B. 12 Edw. IV 19 (1472), see Casner and Leach, p. 278. 

17 2 Blackstone Ch. 7. 

18 P&P, p. 184. 

19 Casner and Leach, p. 278. 

20 Ibid., pp. 278-280. 

21 2 Blackstone Ch. 7. 

22 Casner and Leach, p. 280, footnote. 

23 P&P, p. 28. 

24 P&P, p. 61-62

25 P&P, p. 308. 

26 Casner and Leach, pp. 382-84. 

27 C. Haar and L. Liebman, Property and Law (Little, Brown & Co., 1977), pp. 171-72. 

28 Ibid. 

29 P&P, p. 62. 

30 Ibid., p. 70. 

31 Ibid., p. 308

32 Ibid. 

33 See Casner and Leach generally for a thorough discussion of future interests rules.

34 Simpson, p. 284. 

35 Fines and Recoveries Act, 3 & 4 Will. IV c. 74 (1833); found in Halsbury's Statutes of England and Wales, 4th ed. (London: Battenworth & Co., Publishers, Ltd., 1987), Vol. 37, p. 31. 

36 Married  Women's Property Act, 45  & 46 Vict. c. 75, sec. 1-5 (1882), found in Halsbury, Vol. 27, p. 573. 

37 Simpson, pp. 284-85. 

38 Law of Property Act, 15 & 16 Geo. V c. 20, sec. 130 (1925); found in Halsbury, Vol. 37, p. 72. 

39 Ibid., sec. 51. 

40 Cribbet, p. 48, footnote. 

41 Ibid., pp. 48-50. 

42 Ibid., p. 48. 

43 Harper Lee, To Kill a Mockingbird (J. B. Lippincott Co, 1960).

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