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Persuasions #11, 1989 Page 46-52 Land,
Law
and Love LUANNE BETHKE
REDMOND 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 Conclusion 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. NOTES (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). |
