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The Law of Jane: Legal Issues in Austen’s Life and Novels

Jane Austen is most closely associated with vivid depictions of life in Regency England and with loves lost and found.  Surprisingly, her life and novels are also intertwined with the legal issues of her day.  Marriage, property, inheritance, adoption, contracts, and crime all make appearances in her work and in her short life.  Her novels reflect the legal conventions of the day and are colored by her own experience. 

Lawyers as characters 

As the eighteenth century drew to a close, the power of the clergy began to wane, and the power of the attorney was on the rise.  Austen had access to her father’s considerable library and, as Enid G. Hildebrand has pointed out, would have read publications “like Addison’s newspaper, The Spectator, and his essays in The Tatler and read Fielding and Goldsmith, all of whom wrote about the law and the court system” (34). 

Few lawyers appear in Austen’s novels.  Because, with the exception of clergymen and naval officers, most of Austen’s characters do not work for a living, those working lawyers who do appear play minor roles.  At the time, lawyers held a social status above that of a tradesman, but far below the ranks of most of Austen’s wealthy characters (Fullerton 212–13).  Even within the law, there was a hierarchy:  barristers were considered gentlemen, but solicitors, stewards, and attorneys were not. 

Austen’s novels reveal the contested nature of the social status of the profession.  In Pride and Prejudice, an uncle of the Bennets is an attorney, a fact that draws scorn from the haughty Bingley sisters and even Mr. Darcy (36).  That Mrs. Bennet’s father was also an attorney (28) suggests that the family is far beneath the Darcys in stature and wealth.  With the exception of the Gardiners, that side of the family is considered quite vulgar.  George Wickham, the most despicable villain in all the Austen novels, after deciding not to be a clergyman, tells Darcy that he has “‘some intention . . . of studying the law’” (200).  Wickham’s intent to pursue the law is a “‘mere pretense’” for “‘a life of idleness and dissipation,’” and he abandons the law after three years when he finds it “‘a most unprofitable study’” (201).  Although Elizabeth shows no disdain for her relations in the legal profession, Austen makes it clear in the novel that the profession is not highly regarded. 

Austen is only a bit more gentle in her treatment of the profession in Emma.  As Emma Woodhouse considers alternate suitors after her matchmaking plans for her friend Harriet go awry, she still considers a lawyer beneath the stature of Harriet, whose parentage is unknown.  Considering who might be a match for Harriet, Emma thinks of William Coxe and then catches herself:  “‘Oh! no, I could not endure William Coxe—a pert young lawyer’” (137).  Emma’s dislike of Mrs. Elton comes out in her reflection on the uncle who raised her:  “an uncle remained—in the law line—nothing more distinctly honourable was hazarded of him, than that he was in the law line. . . . Emma guessed him to be the drudge of some attorney, and too stupid to rise” (183).  Yet it is also in Emma that we see the only appearance of a lawyer as a true, if somewhat minor, character in the plot.  John Knightley, a lawyer, is married to Emma’s older sister (79). There is no indication of whether Knightley is a barrister or a solicitor, but he is described quite favorably from Emma’s point of view as “a tall, gentleman-like, and very clever man; rising in his profession, domestic, and respectable in his private character” (92).  Austen’s usual distaste for those in professions other than the clergy and military is absent here.  She even describes his advancement in positive terms, rather than depicting him as a social climber seeking recognition outside of his class, a trait she remarks harshly on in other instances. 

While today the legal profession is held in some esteem, Austen seems to suggest that those who chose it are destined for a life of drudgery.  Sir Walter Elliot of Persuasion employs the “civil, cautious lawyer,” Mr. Shepard, to help him resolve his financial troubles (11).  His daughter, Mrs. Clay, speaks of the trials of the profession, saying that “‘[t]he lawyer plods, quite care-worn’” (20).  Sir Walter’s heir, William Elliot, is trained as a lawyer but, having made a wealthy marriage, can avoid having to practice in his field (200–01).  In Northanger Abbey, the late father of John and Isabella Thorpe is identified as a lawyer (205).  In the unfinished work The Watsons, one of the heroine’s estranged siblings is a lawyer and an unpleasant fellow (Minor Works 348).  Despite the presence of these characters, there is little to no mention of any legal work done by them.  None of these characters reflect the integrity or strong work ethic of Austen’s heroes. 

One of Austen’s own brothers served in a quasi-judicial capacity.  Edward Austen—later Edward Knight—was a magistrate.  Although not a lawyer, a magistrate, akin to what we might understand as a justice of the peace, served many legal functions.  He would have administered justice on a local level—authorizing warrants, resolving minor legal disputes between neighbors, and committing offenders to prison for minor offenses.  The position was an important and honored one and was bestowed by the Crown.  Austen family correspondence suggests that Edward may have discussed some of his cases with his sister Jane (Grover, “Pride”).  Given the complexity of the properties Edward would come to inherit, it is also likely that the family would have discussed legal issues concerning inheritance and entailment, perhaps contributing to Austen’s ability to write about these often complex legal matters (Grover, “Pride”). 

Law and order and Austen 

Austen’s novels—unlike her juvenilia—do not revolve around crime and those who commit it.  Nor does crime serve as a significant plot device in any of the novels.  Her novels do, however, include gamblers, duelists, adulterers, and elopers.  These characters do not suffer the floggings, imprisonment, or hangings that were the popular punishment in England at that time.  Instead, they receive what Austen no doubt perceived to be a harsher punishment:  social rejection and disapprobation. 

The crime rate in England, especially crimes against property, rose drastically during Jane Austen’s life (Fullerton 3–4).  This rise is attributed to a significant increase in population and a drastic decrease in the means of providing for that population.  Laws reducing pasturing rights and the availability of common land made life more difficult for the small landowner.  A decrease in wages enhanced migration from country to city.  High food prices caused many to turn to crime for survival.  The policing system was still nascent, and punishments for property crimes were severe.  Poaching was considered a serious crime against a landowner’s right to the fruits of his land, although many were forced to commit poaching in order to obtain food for themselves and their families.  In fact, crimes against property were considered more serious than those that caused physical harm (Fullerton 3–5). 

Certain crimes were more likely to touch upon the lives of affluent members of society, the classes Austen writes about.  Dueling was outlawed, yet many gentlemen of the day still pursued this do-it-yourself remedy for slights to their honor.  Gaming was legal in many instances.  Failure to pay a debt was not only illegal but also a moral crime in Regency England. 

Crimes against morality reflected the government’s complicated relationship with the church, creating “a large twilight area between crime and sin” (Fullerton 5).  Prostitution was not illegal, but it was illegal to solicit, run a brothel, or to live off of the money earned through sex (Fullerton 5; Baker 497).  Adultery—often practiced but heavily derided by society—was not technically a crime.  It sometimes resulted in a civil legal action called “criminal conversation,” in which the husband sued the man who had engaged in a “criminal conversation” with his wife.  Criminal conversation was, in essence, an offense against the husband’s property. 

Austen’s own brush with the criminal justice system came in the form of an aunt’s trial for the theft of a card of lace.  The Austen family frequently visited and often corresponded with Mrs. Jane Leigh-Perrot and her husband, Mrs. Austen’s brother.  When in Bath, the Leigh-Perrots resided at a fashionable address and often welcomed young Jane and her sister Cassandra into their apartments.  In 1799, several months after the last visit from Jane, Mrs. Leigh-Perrot visited a millinery shop intending to purchase a piece of black lace.  She paid for her purchase of £1.19s worth of the black lace with a five-pound note, and the shop assistant wrapped her purchase for her.  Shortly after leaving the store, she was approached by the shop owner, who demanded to inspect her package.  The inspection produced a card of white lace worth twenty shillings (approximately $1.50 in today’s currency).  Although Mrs. Leigh-Perrot swore that the card had been included in her package by mistake, the shop owner persisted in accusing her of theft (Fullerton 39–43). 

Shortly afterward, Mrs. Leigh-Perrot was arrested and charged with theft.  The charges were not insignificant as any theft of an item valued at over five shillings was punishable by hanging (although deportation to Australia for fourteen years was more likely).  Given her social standing, Mrs. Leigh-Perrot was not taken to the public jail.  As a gentlewoman, she lived at the home of the jailer and his family while awaiting trial (Moody). 

The trial was a spectacle, attended by thousands.  At Mrs. Leigh-Perrot’s express request, neither Jane nor her sister Cassandra attended.  After fifteen minutes of deliberation, the jury returned a “not guilty” verdict (Moody).  There is no record of Jane Austen’s addressing her aunt’s innocence or guilt.  Perhaps this experience with the criminal law is best reflected in her apathy toward the legal professions and in her apparent distaste for the city of Bath. 

Although more than one of Austen’s character wishes for the untimely demise of another to speed up an inheritance, most of them live well-ordered and orderly lives.  In fact, Austen’s novels focus more on crimes of the heart than violations of the penal statute.  There are, though, several characters who are victims and perpetrators of crimes.  In Sense and Sensibility Colonel Brandon engages in a duel to avenge a young woman’s honor, though because he and Willoughby “‘returned unwounded,’” news of the duel “‘never got abroad’” (211).  In Mansfield Park Mr. Rushworth speaks boldly of his efforts to capture and punish poachers on his vast estate (115).  Mrs. Norris seems to have something up her sleeve, quite literally, every time she leaves the home of her wealthy sister (195).  Even Sir Thomas Bertram’s connection to slavery—the slave trade was made illegal in 1807—is mentioned only in passing (198).  In Emma, one of the characters is slightly injured as she runs from a group of gypsies she has been warned to avoid for her safety:  the only assault is upon the character’s senses (333-34).  Although Austen’s heroines adhere to a strict moral code, the author treats these sorts of “social crimes” without sermonizing. 

Love and marriage and divorce 

As personified by Mrs. Bennet in Pride and Prejudice, it was the duty of every mother to see that her daughters were well married.  “Well” did not necessarily mean happily.  Marriage was a way to provide a legitimate heir—ensuring the survival of landed estates and family fortunes.  It was also essential to the financial security of the would-be brides who could not provide for themselves through earned income or property ownership. 

Lord Hardwicke’s Marriage Act of 1753 governed marriage in late eighteenth-century England (Bailey).  The Act required that marriages be announced by a publication of the banns, be officiated over by an Anglican minister, and take place in a church.  Parental consent was required for women under the age of twenty-one.  In order to avoid such strict laws, couples eloped to Gretna Green, in Scotland, where marriage laws were more relaxed (Adkins 13).  In Pride and Prejudice, Lydia Bennet, barely over fifteen, hopes to be bound for Gretna Green when she runs off with George Wickham (291). The Bennets are aghast to learn that the couple did not, in fact, head there and are instead living together unmarried (302-07).  Mr. Darcy saves the day by incentivizing a legal marriage (321-325).  Surprisingly, Lydia is welcomed back warmly by most of her family despite her scandalous behavior, the triumph of her marriage overcoming the shame of her possible pre-marital sex.  The legal marriage wipes the slate clean for one of Austen’s silliest characters. 

Modern women may wonder why Austen’s female characters were in such a hurry to marry given that, in doing so, the few rights they had were lost.  In the early nineteenth century, English law dictated that the bride’s property fell under her husband’s control as a freehold estate.  She owned the property but was not free to alienate or control it, nor was she entitled to any rent or profit from it.  What she may have possessed at the time of her marriage now effectively belonged to her husband—from her china, to her jewelry, to her clothing (Turano 180).  She could no longer enter into a contract without her husband’s consent, nor was she entitled to keep any of her earnings in the unlikely event that she worked outside of the home.  A husband was permitted to physically abuse his wife and prevent her from leaving by any means necessary.  The husband controlled the children—if she left him, the mother was not entitled to take them.  In fact, the husband could name someone other than the children’s mother to be their guardian (Redmond 46–47). 

There can be no doubt, however, that marriage was the happy ending for women in Austen’s novels.  Catherine Morland survives what she imagines to be a gothic horror only to find her true love waiting for her (NA 249).  The Dashwood sisters are rescued from lives of loneliness and poverty when they marry the deserving Colonel Brandon and the redeemed Edward Ferrars (SS 374–79).  Jane and Elizabeth Bennet go on to live joyous lives, united with Bingley and Darcy (PP 385–88).  Fanny Price ascends to her rightful place in the family while still preserving her moral high ground when she and Edmund Bertram marry (MP 461).  The independent if somewhat naïve Emma finds true happiness only when she marries her Mr. Knightley (E 484).  Happiness long delayed arrives for Anne Elliot and Captain Wentworth when they are finally wed (P 252).  Like many authors of her day, Austen’s novels do not focus on the harsh restrictions placed upon married women of the time. 

Divorce was uncommon during Austen’s lifetime.  In fact, there was no divorce law in Britain until 1857.  Until that time, divorce required an Act of Parliament and was prohibitively expensive (Adkins 16).  It was exceptionally rare for a wife to seek divorce.  Neither infidelity nor physical cruelty was a particularly compelling reason, and a wife did not usually have the funds to pursue legal action.  Divorced women typically lost custody of their children (Craig 120).  Whether they were entitled to any money they brought into the marriage was a question for Parliament to decide (Adkins 16). 

In Mansfield Park, Maria Bertram Rushworth engages in an adulterous relationship with the dashing Henry Crawford (464).  As a result, her dull-witted, wealthy husband, James Rushworth, divorces her by an Act of Parliament (464).  When her adulterous partner refuses to marry her, Maria is legally independent but also legally impoverished.  Appalled by her behavior, her father, Sir Thomas, supports her only out of moral obligation: 

Where she could be placed, became a subject of most melancholy and momentous consultation.  Mrs. Norris . . . would have had her received at home, and countenanced by them all.  Sir Thomas would not hear of it. . . . As a daughter . . . she should be protected by him, and secured in every comfort, and supported by every encouragement to do right, . . . but farther than that, he would not go.  Maria had destroyed her own character.  (465) 

Ultimately, the Bertrams banish Maria to a sad fate—life with Aunt Norris “in another country” (465)—but even that support is more than they are legally obligated to give. 

Pride and Prejudice and property 

In Austen’s England, the ownership of real property was the key to wealth and status.  The devolution of real property operated under the shadow of the law of primogeniture, which provided that property passed to the eldest son on the death of the father.  Although on the wane, the concept was still popular enough that Austen would have learned of examples of it in action.  Because the purpose of the law of primogeniture was to keep land within the family and maintain large estates, no division of the property among siblings or others was permitted.  The other children were allowed to inherit money and personal property.  Property law evolved to allow for different forms of property transfer, including fee tails, entails, and strict settlements.  Entailment or fee tail “allowed the patriarch of the family to pass property to one line of the family.  If that line failed to produce descendants or descendants were not of the right sex (generally male), the land would pass to another more distant line of the family” (Appel 611).  A fee tail was created by explicit language in a will or deed.  The basic language read, “To A and the heirs of his body.”  Fee tails male (inheritance restricted only to male heirs of the body) were extremely common.  In an entail, the inheritance went from father (current entail) to son (the new entail) to the heir of the son’s body (future entail).  The fee tail system had the color of law—that is, was legally recognized—although it was challenged by some landowners.  The system began disintegrating by the late eighteenth century. 

The most famous entailment in literature may be that of the Bennet family’s Longbourn estate in Pride and Prejudice.  The accuracy of Austen’s depiction of the entailment has been debated by scholars (Appel 609; Treitel 557; Redmond 49; Grover, “Pride”).  Under the evolving laws of property during the early nineteenth century, it is possible that the restrictions placed on Longbourn were intended to be a settlement rather than an entailment.  Under such a settlement, Mr. Bennet could arguably have terminated the restrictions, making his daughters’ future more secure.  However, the novel specifically refers to the restriction as an entail (28).  Lady Catherine de Bourgh references the Bennet entail and derides its exclusion of the female line:  “‘I see no occasion for entailing estates from the female line.—It was not thought necessary in Sir Lewis de Bourgh’s family’” (164).  Jane and Elizabeth Bennet try repeatedly to explain the nature of the entail to Mrs. Bennet to no avail (62).  Certainly Mr. Bennet assumes a laissez-faire position about the entailment.  One scholar defends Mr. Bennet by suggesting that he may have been only “tenant for life under a resettlement, with the remainder to his first and other sons successively in tail male and, in default of such male issue, to the male descendants of an original settlor some generations back” (Treitel 563).  Another scholar suggests Longbourn was settled as an entail, leaving Mr. Bennet powerless to change any restrictions (Appel 626).  Whether Mr. Bennet was forbidden by law or merely lazy, the issue of inheritance drives the plot of one of the great English novels. 

Adopting Austen 

Several of Austen’s novels feature characters adopted, formally or informally, by collateral family members.  Perhaps these plotlines are a reflection of Austen’s own experience with the “adoption” of her older brother Edward. 

Adoption as it is understood today was unknown in Austen’s time.  The first formal adoption law was not passed in England until 1926 (Walker).  When children were without parents to raise them, they were often taken in by relatives and family members as a form of kinship adoption.  This ad hoc surrogate parenting did not observe many legal formalities.  It was not uncommon, though, for a more formal adoption to occur among families with significant property who had an estate to pass along.  This practice of “surrogate heirship” was promoted by some politicians of the day as a means of maintaining the laws of landed property (Gilbert). 

Edward Austen, Jane’s eldest brother, was sixteen years old when he was adopted by Thomas Knight, a distant relative of his father’s, and his wife, Catherine.  The Knights, unable to have children, sought an heir for their considerable property.  Edward Austen, as the son of a clergyman of no land or fortune, would have had no opportunity to own an estate, much less the three he came to own.  Upon his death, Thomas Knight left three sizeable estates, Chawton, Godmersham, and Winchester, to his widow for life and then to Edward, simultaneously confirming his adoption (Grover, “Edward Knight’s Inheritance”).  As a condition of his inheritance, Edward Austen was required to change his surname to Knight when he inherited the property, which he did in 1812.  Edward’s adoption allowed him to provide housing in Chawton (beginning in the summer of 1809) for his widowed mother and spinster sisters, who would otherwise have been doomed to undesirable housing as their small income dwindled, but challenges to his inheritance also exerted financial pressures in the last years of Jane Austen’s life (Grover, “Pride”). 

Austen’s familial experience with adoption is reflected in her work.  Mansfield Park introduces Fanny Price, a young woman informally adopted by her aunt and uncle to relieve her impoverished parents (30–31).  Her initial entrance into the family underscores the class divisions among the more and less wealthy members of the family.  One of the protagonists in Emma, Frank Churchill, was also informally adopted by a childless brother of his deceased mother (17).  The arrangement is not a formal one, as we would expect today.  It is easy to imagine that, like the adoption of Austen’s brother Edward, such an arrangement would be legally recognized in the wills of the adoptive parents.  The expectation of Frank Churchill’s inheritance from his adoptive family helps to drive the plot Emma, often serving as an excuse for his otherwise ungentlemanly behavior (Walker). 

Austen and American Idol 

Lest you think that Jane Austen has no place in a discussion of the law today, consider the case of Austen and the American Idol.  In 2013 pop star Kelly Clarkson, who had won the American Idol competition, learned just how important Jane Austen is to the British national psyche.  Clarkson, an avowed Austenite, purchased a ring once owned by Austen at a Sotheby’s auction for approximately $233,000.  Austen had bequeathed the ring to her sister, Cassandra.  The ring was passed down through the Austen family and eventually put up for auction. 

While Clarkson was permitted to purchase the ring, she was forbidden by the United Kingdom’s Minister of Culture from taking it to her home in America.  The Minister put a temporary export ban on the ring in the hope that it would instead be purchased by someone in the U.K.  The authority for the Minister’s action lies in a British law requiring the owner of a “national treasure” to seek a license to take it out of the country—a response to an art drain, as many cash-poor aristocrats sought to shore up family fortunes by selling their vast art collections. 

The order was governed by a complex set of guidelines known as the Waverly Criteria.  In a nutshell, the criteria restrict the exportation of objects valued above a certain dollar amount, that have been in the United Kingdom for more than fifty years and are of “national importance” (U.K. Department of Culture).  Clarkson’s application for an export license was deferred for two months, during which time Jane Austen’s House Museum was able to raise the fair market price of $250,000 U.S.  Clarkson reportedly was gracious in agreeing to re-sell the ring, which is now kept at the museum, the house in which Austen spent the last eight years of her life.

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Although Jane Austen had little formal education, her novels feature skillful descriptions of intricate legal issues.  Matters of law are interwoven into Austen’s life and work.  Certainly, Jane Austen’s novels have influenced countless readers to examine the unfairness inherent in class systems and to look beyond societal norms and the letter of the law to seek what is true and to do what is right.

Works Cited
  • Adkins, Roy, and Lesley Adkins.  Jane Austen’s England: Daily Life in the Georgian and Regency Periods.  New York: Penguin, 2013.
  • Appel, Peter A.  “A Funhouse Mirror of Law: The Entailment in Jane Austen’s Pride and Prejudice.”  Georgia Journal of International and Comparative Law 41.3 (2013): 609–36.
  • Austen, Jane.  The Works of Jane Austen.  Ed. R. W. Chapman.  3rd ed. Oxford: OUP, 1933–1969.
  • Bailey, Martha.  “The Marriage Law of Jane Austen’s World.”  Persuasions On-Line 36.1 (2015).
  • Baker, William.  Critical Companion to Jane Austen: A Literary Reference to Her Life and Work.  New York: Facts on File, 2008.
  • Craig, Sheryl.  “‘So Ended a Marriage.’”  Persuasions 36 (2014): 117–35.
  • Freeman, Jean.  Jane Austen in Bath.  Alton: Jane Austen Society, 2002.
  • Fullerton, Susannah.  Jane Austen and Crime.  Paddington, NSW: Jane Austen Society of Australia, 2004.
  • Gilbert, Deirdre E.  “‘Willy Nilly’ and Other Tales of Male-Tails: Rightful and Wrongful Laws of Inheritance in Northanger Abbey and Beyond.”  Persuasions On-Line 20.1 (1999).
  • Grover, Christine.  “Edward Knight’s Inheritance: The Chawton, Godmersham, and Winchester Estates.”  Persuasions On-Line 34.1 (2013).
  • _____.  “Pride, Prejudice, and the Threat to Edward Knight’s Inheritance.”  Persuasions On-Line 35.1 (2014).
  • Hildebrand, Enid G.  “Jane Austen and the Law.”  Persuasions 4 (1982): 34–41.
  • McLynn, Frank.  Crime and Punishment in Eighteenth-Century England.  Abingdon: Routledge, 1989.
  • Moody, Ellen.  “The Life and Crimes of Jane Leigh-Perrot.”  The Jane Austen Centre.  16 July 2011.  http://www.janeausten.co.uk/the-life-and-crimes-of-jane-leigh-perrot/.  13 Dec. 2017.
  • Redmond, Luanne Bethke.  “Land, Law and Love.”  Persuasions 11 (1989): 46–52
  • Tomalin, Claire.  Jane Austen: A Life.  Rev. ed.  New York: Penguin, 2000.
  • Treitel, G. H.  “Jane Austen and the Law.”  The Law Quarterly Review 100 (1984): 549–86.
  • Turano, Margaret Valentine.  “Jane Austen, Charlotte Brontë, and the Marital Property Law.”  Harvard Women’s Law Journal 21 (1988): 179–226.
  • United Kingdom, Department for Culture, Media and Sport.  Export Controls on Objects of Cultural Interest Statutory Guidance on the Criteria to be Taken into Consideration When Making a Decision about Whether or Not to Grant an Export Licence.  UK DCMS, 2005.
  • Walker, Eric C.  “‘In the Place of a Parent’: Austen and Adoption.”  Persuasions On-Line 30.2 (2010).
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