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Persuasions #4, 1982                                                                                                                                            Pages 34-41

 

 

JANE AUSTEN AND THE LAW 

 

Enid G. Hildebrand

Toronto, Ontario

Mr. Woodhouse sighs to his daughter Emma “One half of the world cannot understand the pleasures of the other.” When I think of how I’ve been looking forward to this weekend, I think of this dear old gentleman’s remark. When our charming chairman, Mary Millard, telephoned me early last spring to ask me to speak to the Jane Austen Society of North America about her knowledge of the law, I was standing in my partner’s office, watching the sun sparkle on Lake Ontario. As I spoke with her, thoughts of first year property law lectures on land entailments, remaindermen, the fee tail male, the statute of Quia Emptores danced through my head, and I instantly agreed. My partner who happens to be my brother, who also happens to be an English major, who also happens to be one of my former high school English students, turned white with shock, raced down the elevator to the bookstore below, and came back with a copy of Sense & Sensibility. He intoned to me the first page which, of course, deals with the entailment of the Dashwood estate. “No problem,” he said, “but remember, October will soon be here, and your field is Victorians.”

When the advance programme for this weekend arrived, I wondered how a late 20th Century lawyer could arrange to have the vapours on a date to be fixed – No excuses of being called to a higher court – Just prepare for trial. And what an interesting time it has been! I do hope I can dispel the general impression modern readers have that Jane Austen’s characters and plots depend on settled estates, entails, and inheritances. She knew so much about so many areas. How was that possible in her sheltered life in the country?

The last half of the 18th Century saw the rise of the legal profession – Power was shifting from the pulpit to the bar. As a clergyman’s daughter, she had access to her father’s library, was taught by him along with the pupils he took into his home to educate, and along with her fashionable passion for novel reading, we know she admired Addison’s newspaper, “The Spectator,” and his essays in “The Tatler” and read Fielding and Goldsmith, all of whom wrote about law and the court system. Sir Walter Scott was a Scottish judge.

We must remember that at one time the administration of justice and the practice of advising litigants and of advocacy was in the hands of the clergy. Indeed, for a time it seemed not unlikely that the universal church courts and church law would carry the day against the local courts and the local law. Naturally the clergy did not relinquish the practice of the law without a protest. When the new rival, the lawyer, pushed them out, one after another, of the great offices of state, the clergy became professionally concerned at this supercession, and were naturally disinclined to be forced to confine their attention to the less-immediately-profitable calling of preparing for the world to come.

By the beginning of the 19th Century, the sceptre of justice had passed from the clergyman to the lawyer. As increasing complexity demanded specialization, the need grew for far more certainty in transactions and for greater detail of legal rule. The clergy viewed this rise of law and consequent rise of the lawyer as a triumph of the material over the spiritual, a sacrifice of justice and right to the greed and craft of a parasitic class. Sermons of the first half of the 19th Century are full of this, and nothing but the inexorable operation of economic conditions that demanded law enabled lawyers to overcome this violent hostility to their profession. Jane Austen views the law through the eyes of the clergy – there are no lawyer heroes in her work – (the dreadful Mr. Palmer in Sense & Sensibility is a politician) – only boring Mr. John Knightley in Emma, whose profession was seen merely as an inconvenience by his father-in-law, Mr. Woodhouse: “Mr. John Knightley’s being a lawyer is very inconvenient.” He didn’t see enough of his daughter or grandchildren, and to Emma, John Knightley’s reserved manners prevented his being generally pleasing; and he was capable of being sometimes quite out of humour.

In Jane Austen’s day, the courts of common law (the Queen’s Bench, based on Roman law) and equity (Chancery, based on canon law) were still separate. It was not until 1875, when as a result of the Judicature Act, 1873, that a single Supreme Court of Judicature was established, each branch of which had full power to administer both law and equity. The three divisions were the Queen’s Bench, Chancery, and the Probate, Divorce, and Admiralty with its rather miscellaneous jurisdiction over wills, wives, and wrecks as Sir Alan Herbert put it. (Glanville Williams, Learning the Law, p. 14.)

The word “estate” has several common meanings to us. It can mean the real and personal property a person leaves to his beneficiaries when he dies; a beautiful home and surrounding acreage in the countryside; or an interest in land. Jane Austen uses all three meanings in the novels, but the most important is her usage to define a settled interest in land created either inter vivos (i.e., by a deed of trust while the settlor is still alive), through his will upon death, or by purchase.

In actual law, the land itself is not the subject matter of ownership, though the person who is possessed of it (i.e., seised it) is entitled to exercise proprietary rights in respect of it. The person entitled to seisin (possession) owns an abstract equity called an estate, which is interposed between him and the land. The estate represents the extent of his right to seisin, and estates vary in size according to the time for which they are to endure. On this basis they are classified as estates of freehold and estates less than freehold. Secondly, several different persons may simultaneously own distinct and separate estates in the same piece of land.

The classification of estates depends upon their duration and the estate will vary in size according to the time for which it is to endure.

A freehold estate is an estate of uncertain duration, and can be inherited in fee simple – i.e., to “A” and his heirs, (“fee” meaning it is inheritable) and this estate will last as long as the person entitled to it for the time being dies leaving an heir and therefore it may last forever in the sense that it may never pass to the Crown for want of an heir. “Heir” here means general heir, ascendent, descendent, or collateral, (i.e., Lady Catherine de Bourgh in Pride & Prejudice is a female heir, not specifically prevented from inheriting for want of being male.)

An estate in fee tail, which is the only other estate of inheritance, is less than a fee simple since it is inheritable only by the specified descendents of the original grantee and never by his ascendents, and also because it is descendible only to his lineal issue and not to his collateral relatives. Thus it is inferior to the fee simple in the sense that it has not as great a capacity for perpetual existence. The classic formula for creating this is “to ‘A’ and the heirs of his body.” It can be further narrowed down to a fee tail male – only to male heirs.

Life estates include an estate which “A” holds for his own life, and also that he holds during the lifetime of “B,” this second species being called an estate pur autre vie.

The settling of estates by entailing the inheritance of land is a recurring topic in the novels. As I mentioned, in Sense & Sensibility, Mrs. Dashwood and her daughters were forced to leave Norland Park upon her husband’s death because her stepson inherited all the real property; in Pride & Prejudice, it is Mr. Collins who is to receive the Bennets’ Longbourn home, for want of a Bennet son, thus uprooting his widow and daughters. (Mr. Collins has an actual interest in the estate during Mr. Bennet’s lifetime.) However, Rosings passed to Lady Catherine de Bourgh, the estate, as mentioned before, not being entailed away from the female line.

The possibility of Mr. Knightley marrying Jane Fairfax sent tremors through Emma, as she thought of her eldest nephew losing Donwell. “Mr. Knightley and Jane Fairfax! Dear Mrs. Weston, how could you think of such a thing? Mr. Knightley! Mr. Knightley must not marry! You would not have little Henry cut out from Donwell? Oh no, no; Henry must have Donwell. I cannot at all consent to Mr. Knightley’s marrying, and I am sure it is not at all likely. I am amazed that you should think of such a thing.”

In Pride & Prejudice, Mr. Bingley’s father died before he could purchase an estate and left his son close to £100,000, so Netherfield was a leased property. The Bingley sisters possessed a separate fortune of £20,000. We are reminded, of course, that though the family was respectable, the fortune had been acquired by trade!

Jane Austen was herself personally involved in an estate controversy through her brother, Edward. As you know, Edward Austen had been adopted by Thomas Knight, a distant Austen connection, who had no children of his own, and owned the estates of Chawton House in Hampshire and Godsmersham Park in Kent. Edward became the heir to Mr. Knight’s property. We see this same relationship recur in the Frank Weston Churchill relationship in Emma. Edward, in due course, inherited Chawton and Godsmersham and adopted the name of Knight. Edward had 11 children, including 7 sons. The annual income of Godsmersham was £5,000; and of Chawton, approximately £10,000. Two years later, a Knight relative challenged the document deeding Chawton to Edward who finally settled the suit by paying a large sum in order to retain the estate. This, coupled with their brother Henry’s bankruptcy in 1816, caused by his firm’s financial backing of the bank at Alton, brought Jane very close to the details and realities of the financial world, although her individual loss in the bankruptcy was minor, about £10.

The Knights were connected to the Rev. George Austen; the Leighs were Mrs. Austen’s family. Lord Leigh’s curiously worded will left, in 1806, to the Reverend Thomas Leigh, Rector of Adlestrop, an immense property, Stoneleigh Abbey in Warwickshire. Other members of the Leigh family contested the will, including Mr. Leigh Perrot who settled for a lump sum of £24,000 and £2,000 per annum. Mr. Leigh Perrot died in Jane’s last year, leaving a curious will, as well. Wealthy and childless, with Jane’s mother his only surviving sister, one would expect his sister and her children to be provided for. Yet he left everything to his wife, save for a considerable sum to Jane’s brother, James, with £1,000 to be inherited by each nephew and niece who survived his wife.

Estates, settlements, trusts, wills were the everyday stuff of life to Jane Austen. The novels are sprinkled with references. Nary a character is introduced without his or her fortune and annual income clearly stated, and admired or pitied accordingly. It is not enough to say women didn’t work; the men didn’t either, other than to manage their estates or investments, or to become men of the cloth, soldiers, or sailors. Women could be teachers or governesses, Jane Fairfax’s fate worse than death; people in trade or farmers were of the lower echelons. How fortunate it is that Harriet Smith’s father turned out to be in trade, so that she didn’t have to lower herself, though illegitimate, by marrying Farmer Martin! It was not until the mid-19th Century that jobs for gentlewomen expanded, as technology kept on inventing machines designed to save labour, which required more and more labour to operate them.

Critics who denigrate Jane Austen’s obsession with money, men, and marriage and argue that today she would not be as limited or as concerned with these topics, and feel that the broad expansions of women’s legal rights in the last century have led their interests elsewhere, are simply not correct. Jane’s views are as fresh today as they were current then. During International Women’s Year, I had occasion to be invited to a dinner party given by a well-known Canadian writer. Her guest list was comprised of women in the professions and the arts. Guess what the after-dinner conversation consisted of? We could have been in Mrs. Bennet’s drawing room.

Historically at common law, infants, women, married or single, and mental incompetents were lumped together as persons in need of protection. It was not until the Married Women’s Property Act of 1882 that married women had the right to deal with their own property. Husband and Wife were one person and under this doctrine of unity, that person was the husband. He became absolute owner other personal chattels, could dispose of her leaseholds, and control and manage her freehold estates. He was the complete master of his wife’s property, and she was deprived of contractual capacity. Mr. Wickham and Georgiana Darcy, Mr. Willoughby’s choice of Miss Grey, as his wife, even Mr. Collins settling for Charlotte Lucas show they knew how to succeed in business without really trying.

How did a father protect his daughter from fortune-hunters? By providing in pre-nuptial settlements that her property was to be for her sole and separate use, and including what was known as a restraint upon anticipation. The woman could enjoy the income, could devise the property by will, but could not sell or mortgage it while she was married. This restraint, developed in equity at the end of the 18th Century, protected the wife against the solicitations of her husband or her own natural inclination to surrender her beneficial enjoyment of the property to him. It also, by coincidence, protected her from her own creditors as well as his. As late as 1765, Blackstone expressed the opinion: “Even the disabilities which the wife lies under are for the most part intended for her protection and benefit, so great a favourite is the female sex of the laws of England.”

A married woman could not bind herself by contract. If his wife contracted debts before her marriage, the husband was liable for them whether he knew of their existence or not, regardless of whether he obtained any property from his wife on marriage. While she could charge her separate property with her contracts, she could not make a contract while she was married which would bind her personally.

As settlements of land frequently left property to an elder son for life, then entailed to his elder son, and so on and so forth, provisions were also made for income to widows, daughters, etc., and these became the charges on the estate. These were frequently onerous charges which had to be paid and which could create financial difficulties for the heir who could not dispose of the property. Virtually, every character in the novels has an annual income, large or small, whether by inheritance or settlement, which appears to be public knowledge. I know you heard a paper on interest rates at your last general meeting, and so are familiar with the 4%’s and the comparative value of the pound and the cost of living. For example, someone with an annual income of £l,000 would have had an estate of £25,000 the estate would be worth approximately £125,000 today, but the interest factor of say 15% would yield £18,750 annual income. Richer or poorer, who can say?

With all Jane’s knowledge of land, interest, income, there is never a mention of the Stock Exchange or the City in the novels. Money is in land or in banks, but not in stocks.

The first and second decades of the 18th Century were marked by an almost frenetic boom in company flotations which led to the famous South Sea Bubble. The disastrous collapse of 1720, and the so-called Bubble Act of the same year, our first Companies Act, which tried to regulate joint stock companies, did much to sap public confidence in joint stock companies and their securities for over 75 years. During the remainder of the 18th Century, when the fortunes in our novels would have been accumulated, although the mechanism of the stock market was well understood and several rather half-hearted attempts were made by the legislature to check its abuses, company shares do not seem to have been generally regarded as suitable investments for the lay public, but rather as a means of enabling the members of the mercantile community to acquire a permanent stake in enterprises with which they were familiar. The picture changed at the turn of the century, when first the exigencies of war and then the growth of the railway led to an outbreak of company promotion and of general speculation comparable to that of the Bubble period. There was a slump in 1808, and confidence was gradually restored until the boom of 1824-1825, a period outside our time frame.

I referred earlier to married women’s inability to enter into contracts or to maintain or defend law suits. Though she was single, it was Jane’s father and brother, Henry, who approached publishers and made her publishing contracts for her.

Elopements play a part in the novels: Willoughby and Miss Williams in Sense & Sensibility, Wickham’s attempt with Georgiana Darcy and his success with Lydia Bennet; and Maria Bertram with Henry Crawford in Mansfield Park. The Letters often refer to elopements, or to gentlemen taking mistresses. Yet, Jane doesn’t seem to disapprove – the almost universal admiration for Lord Nelson which included acknowledging his relationship with Lady Hamilton may have dispelled this. If it is the navy, well then, that’s life! Jane, however, was surely aware of something the average modern reader is not – the extreme difficulty of obtaining a decree absolute of divorce. The only divorces I can recall mentioned are Maria Bertram’s and Eliza Brandon’s. Poor Eliza, to be married to Colonel Brandon’s brother, because the encumbered Brandon estate needed her fortune! Orphaned in infancy under the guardianship and protection of Colonel Brandon’s father. On the point of eloping to Scotland with the Colonel, but betrayed by a maid. Divorced, going from seducer to seducer. Traced by the Colonel to a debtor’s prison, dying of consumption. Little Eliza, the illegitimate child of her first seducer, eloping with Willoughby, in turn abandoned and left with an illegitimate child. Mrs. Jennings, of course, decided that Miss Williams was the Colonel’s natural daughter. Jane Austen does not really bring moral censure to bear upon Willoughby, the Colonel, or Wickham for the elopements, or upon Jane Fairfax and Frank Churchill for their concealed engagement. There are no criminals in the novels; perhaps a suggestion in the wayward gypsies in Emma, or in Wickham’s “white collar fraudulent activities,” but no mention of actual criminal activities.

Emma Woodhouse devoted so much of her time to the illegitimate Harriet Smith, and Jane Austen was never castigated. Yet, Thomas Hardy, the most chaste of writers, was banned for many years, because he wrote of Tess and her illegitimate child and was suspected of religious doubt in Jude the Obscure.

Eliza Williams is referred to as “a natural daughter.” “Harriet Smith was the natural daughter of somebody. Somebody had placed her several years back at Mrs. Goddard’s school, and somebody had lately raised her from the condition of scholar to that of parlour boarder. This was all that was generally known of her history.” Jane ironically keeps referring to her as somebody’s child, which shows she is playing on the legal term for a bastard – filius nullius – nobody’s child.

When Emma and Mr. Knightley disagree about the merits of a match between Harriet and Robert Martin, this is made clear. Mr. Knightley calls her “the natural daughter of nobody knows whom, with probably no settled provision at all and certainly no respectable relations. She is known only as a parlour boarder at a common school.”

Emma: “Mr. Martin may be the richest of the two, but he is undoubtedly her inferior as to rank in society. The sphere in which she moves is much above his. It would be a degradation.”

Mr. Knightley: “A degradation to illegitimacy and ignorance to be married to a respectable, intelligent, gentleman farmer!”

Emma: “As to the circumstances of her birth, though in a legal sense she may be called Nobody, it will not hold in common sense. She is not to pay for the offense of others, by being held below the level of those with whom she is brought up. There can scarcely be a doubt that her father is a gentlemen – and a gentleman of fortune. Her allowance is very liberal; nothing has ever been grudged for her improvement or comfort.”

Mr. Knightley: “Whoever might be her parents, whoever may have had the charge of her, it does not appear to have been any part of their plan to introduce her into what you would call good society.”

Emma assumes she is the child of a gentleman and prepares her for marriage accordingly. When she accepts Farmer Martin, her parentage becomes known.

“She proved to be the daughter of a tradesman, rich enough to afford her the comfortable maintenance which had ever been hers, and decent enough to have wished always for concealment. Such was the blood of gentility which Emma had formerly been so ready to vouch for! It was unlikely to be as untainted, perhaps, as the blood of many a gentleman: but what a connection had she been preparing for Mr. Knightley, or for the Churchills, or even for Mr. Elton! The stain of illegitimacy, unbleached by nobility or wealth, would have been a stain indeed.”

Then, illegitimate children had no rights to inherit; now, they are equal before the law with their legitimate brothers and sisters. No more need for secret trusts and private arrangements.

Because divorce in 1800 was difficult to obtain, very public and very expensive, divorce, remarriage, and children of second marriages (unless acquired through death of a spouse) are rarely discussed. Instead, the novels deal with elopements, and very occasionally natural children; the Letters mention mistresses.

Until the Matrimonial Causes Act of 1857, the English civil courts lacked the jurisdiction to grant divorces. Until then, matrimonial causes were the preserve of the Ecclesiastical Courts. However, these courts had only the power to grant a decree of judicial separation – divorce a mensa et thoro, only – i.e., separation from bed and board. Dissolution of marriage, divorce a vinculo matrimonii (from the chains of marriage) was not within their jurisdiction. Matrimonial causes had been the exclusive jurisdiction of the Ecclesiastical Courts since at least the 13th-Century.

This meant that it was canon law rather than common law or even Roman civil law that shaped the law of divorce in England. Before the Reformation, because marriage was regarded as a sacrament, it was virtually impossible to obtain a divorce a vinculo. Only the Pope could dissolve a valid marriage and this was rare. However, decrees of nullity were frequently granted. After Henry VIII, who put relations between church and state on a new basis, the right of appeal to Rome was abolished, and nullity proceedings were tightened up.

While divorce a vinculo was unobtainable from the Ecclesiastical Courts, there was a remedy to Englishmen who wanted their marriages dissolved. This was by resort to a private Act of Parliament specifically dissolving their marriage. This expensive procedure was very seldomly used, and between 1715 and 1852, the number of such divorces averaged less that two a year.

In 1798, the process of parliamentary divorce was rendered more difficult and more expensive. After that date, all petitions for a private bill had to be supported by a divorce a mensa et thoro from the Ecclesiastical Courts, and by a verdict of damages for criminal conversation brought against the wife’s seducer in the Common Law Courts, or to show circumstances explaining their absence. Adultery was the only ground upon which a petition could be presented, and normally relief was granted only a husband. There are only four cases of relief being granted to a wife and those concerned circumstances of aggravated enormity. It is significant to note, however, that care was taken that the wife was not left destitute. The House of Commons possessed an official, known as the “Ladies Friend,” whose task it was to ensure that a husband made “suitable but moderate provision” for his divorced wife.

I would be inclined to suggest to you that Colonel Brandon’s Eliza was divorced in the Ecclesiastical Courts only – a judicial separation, since no mention is made of remarriage, and the parliamentary Ladies Friend would have seen that she received some suitable, if moderate provision in addition to her private income, and have prevented her from languishing in a spunging house.

The law is but a small part of the tapestry of the novels. Elinor and Marianne would have faced the same problems at Norland as they did at Barton Cottage; the Bennet girls would all be seeking husbands from Longbourn or elsewhere. But it is the knowledge of the laws linking the Englishman to his property, of the intricacies of wills and settlement, the tolerance of man’s failings that give the universal reality to the works, and do not date them with the faded chintz of another day.