JANE WAS RIGHT!
The idea that Mr. Bennet could have barred the entail in Pride and Prejudice — thereby leaving Longbourn to his daughters — is surprisingly common. It is, however, wrong. Jane Austen understood the law of entail, and she described the Longbourn entail with great clarity. In my opinion as an attorney trained in trusts and estates law and corporate tax law, it's extremely unlikely that Mr. Bennet could have broken this entail and left Longbourn to his daughters instead of Mr. Collins.
What follows is my best effort to explain the law of entail in plain English. Property law is one of the most challenging course in first year law school, so what follows is obviously a gross simplification. However my goal is to get you to 'think like a lawyer' about entail. This ability to ‘think like a lawyer’ is the key to mastering the complex and arcane world of English common law. And entails are complex and arcane even by English common law standards. So let's just say we have our work cut out for us!
THE LONGBOURN ENTAIL:
Before we do our deep dive, let’s quickly summarize what Jane Austen actually tells us about the Longbourn entail. I’m going to quickly do this using the legal jargon — the ‘magic words’ — that I would use to explain the Lonbourn entail to a fellow lawyer. Then I will circle back to explain what those magic words mean in laymen’s terms.
So don’t freak out! By the time you read the rest of this answer, you should (a) know what all these magic words mean; (b) understand why Jane is correct when she says that Mr. Bennet can't cut off the entail; and (c) be able to read between the lines of Jane's explanation just like a judge or lawyer would.
First Jane explains the line of succession under the entail:
"Mr. Bennet’s property consisted almost entirely in an estate of two thousand a year, which, unfortunately for his daughters, was entailed, in default of heirs male, on a distant relation"
This tells us that Mr. Bennet's estate is entailed in the male line: somewhere there is a document that includes the magic words 'fee tail male' or 'heirs of his body.' It also tells that the remainder man -- the person who gets the estate if the male line fails -- is Mr. Collins.
The next passage explains why Mr. Bennet cannot simply "cut off the entail" and leave Longbourn to his daughters:
"When first Mr. Bennet had married, economy was held to be perfectly useless, for, of course, they were to have a son. The son was to join in cutting off the entail, as soon as he should be of age, and the widow and younger children would by that means be provided for.”
Based on this passage it is almost certain that the magic words that entail Longbourn in the male line are actually contained in a larger, more complicated document called a strict settlement. Strict settlement was the dominant estate planning tool for the landowning class throughout the 18th and 19th centuries. So it would be fairly safe to assume that Longbourn w. But Jane has given us a critical piece of additional information: she tells us that Mr. Bennet can only cut off the entail by joining forces with his adult son. To a lawyer this detail practically screams "strict settlement!"
Strict settlement (also called English entail) is basically a drafting trick that makes entailments more enforceable. In a true entail (“to A and the heirs of his body”) every heir is a tenant in tail, so they all have the same level of property rights. The big innovation in a strict settlement is that the first heir is only given use of the estate for life (“to A for life, and then to the heirs of his body”). This means that A is only a life tenant. A’s oldest son will be the first tenant in tail.
Why does this matter so much? Because only the tenant in tail can use common recovery loophole. If the life tenant wants to use it, he has to join forces with his adult son — and that is exactly what Jane has told us Mr. Bennet needs to do.
Some scholars have argued that Longbourn was held in a true entail. This would mean that Mr. Bennet could have broken the Longbourn entail any time he wanted to. And these scholars conclude that Jane Austen was either ignorant of the law or making an ironic comment about just how lazy a father Mr. Bennet was.
I don’t think this theory holds water, though. ‘Strict settlement’ never replaced ‘entail’ in common speech. Throughout the 19th century writers like Anthony Trollope and George Elliot use 'entail' as a synonym for strict settlement. It seems reasonable to conclude that Jane was merely following common usage.
The historical record also shows most entailed estates were managed through strict settlement by 1680. Economic historians have shown that strict settlement was expressly designed to disinherit daughters who stood to inherit estates at common law -- and that it was highly effective. One study found that 25% of country houses should have been inherited by daughters based on demographics, but only 9% actually were. This suggests that Jane was accurate about the on-the-ground effects of entailing estates in the male line. No surprise when we're dealing with one of the most perceptive social commentators in all of English literature!
So, again, here's a lawyer's restatement of what Jane wrote about the Longbourn entail:
Longbourn is entailed on the male line through a type of legal instrument called a strict settlement. Mr. Bennet is a mere life tenant. His unborn son would have been a tenant in tail. And Mr. Collins is the remainderman who inherits if the male line fails.
Now let’s unpack these magic words so you understand the bigger picture…
WHAT IS AN ENTAIL?
An entail is really just any document that includes a specific set of magical words. These magical words have been enshrined in English law since the middle ages. Every time you transfer a piece of land — real property — you need to use these magic words. So lawyers have learned them for a thousand years. And if you learn a few of them, then wills, trusts, and deeds will all suddenly make sense to you. And you only need to learn three of them to understand the Longbourn entail: fee simple, tenant for life, and fee tail (or entail)
The magic words that create a fee simple are “to A and his heirs.”
The magic words that create a tenant for life are ‘to A for his life.’
The magic words that create a fee tail are "to A and the heirs of his body.”
You will notice that I didn't write MALE heirs of his body. In casual speech the word "entail" has come to mean a specific type of entail: entail in the male line. But you can entail on all children ("heirs of his body) or even on a woman's female children (“female heirs of her body"). In fact, as you'll see later, the oldest known entails were on the female line. So if you want to think like a lawyer about entails, forget about primogeniture and just remember that an entail is created any time you use the magic words "heirs of his body.”
So what do all these magic words do in the real world? Each of them creates a specific type of ‘fee’ or property interest. Fee is a medieval word that described how a feudal lord owns his land. And feudalism is the easiest way to understand something law students struggle with throughout first year property law classes: the Bundle of Rights.
Lawyers treat property as a "bundle of rights" where the more "sticks" you own, the higher your level of ownership. In medieval times the feudal lord would get ‘fee simple’ straight from the king. Then the lord would grant lesser fees and tenancies to his vassals and tenants. These fees and tenancies live on in the magic words real estate lawyers still use today. If you live in the UK and you own your home in leasehold, then you have the same partial ‘bundle of rights’ that feudal lords granted to their tenant farmerss. But if you own a home in the US without a mortgage on it, then you hold the whole bundle of ‘fee simple’ rights just like a feudal lord …. because, as Americans like to say, a man's home is his castle!
So what sticks in the bundle of rights does Fee Tail include? Fee tail is a Norman legal concept that literally means that you own the land "with a tail on it." ("en tail" in French) The tail is the future interest of the person who is going to inherit it after you. So if you hold land "in fee tail" you hold the current rights in the land -- but "the heirs of your body" hold the tail, or the future rights.
To see how this works, imagine a fee simple owner holding a huge bundle of sticks that represent total control over a piece of land for all time. Then pull out several sticks and give one each to the owner's oldest son, grandson, great-grandson, etc. You have now turned the fee simple owner into a fee tail owner -- or, to use the correct legal term, a "tenant in tail.”
Most of the time during day to day life, there is no difference between a fee simple owner and a tenant in tail. The tenant in tail can live on the land, farm it, and so forth. But what happens when he wants to sell it? In English common law, before a tenant in tail can sell his land he needs to get back the sticks that belong to all the future heirs and reunite them with his sticks. Otherwise he does not have the "full bundle of rights" and can't alienate the land.
This single issue is what 90 percent of the law of entail is about: can you alienate the property without getting sued by future heirs? And since Jane knew her stuff, this is also the main issue in Pride and Prejudice: can Mr. Bennet give Longbourn to his daughters instead of Mr. Collins?
BARRING THE ENTAIL
The short answer is that Mr. Bennet can only give Longbourn to his daughters if he can "bar the entail." So what does "barring the entail" mean?
Well, the phrase Jane used was "cutting off the entail." And that should give you a big hint. When you "cut off the tail" you get rid of the future interest that those medieval lawyers envisioned as the "tail" on the end of the "fee." This bars the entail -- or in plain English it stops your heirs from suing your ass.
Unfortunately for Mr. Bennet, not everyone can bar an entail. In order to understand who can bar an entail -- and why -- we need to look at why entails were originally invented. And the reason is the exact same reason that modern trusts exist: Bossy grandparents!
Entails evolved from medieval Norman marriage gifts called "maritagia." Traditionally the bride gift remained conditional until the couple had children. Once the bride had children, the gift was settled on the children and became irrevocable. But if the bride died without children, the gift went back to her family. This makes sense, right? If your daughter marries some jerk and then dies without children, do you really want him to spend her dowry on his new floozy? This was accomplished by settling the gift on "A and the heirs of her body.”
Over time aristocratic families started using these marriage settlements to lock family land up for longer and longer periods. They did it by using the same language in the bride gifts -- but using the phrase "to A and the MALE heirs of his body." And voila! The entail as Jane Austen fans know and love it was born!
In 1285 a statute called De Donis (of gifts) was passed that many judges interpreted as allowing entails to go literally forever. Under De Donis no heir could ever bar an entail. Some courts even went so far as to say that the King could not seize entailed land when a vassal committed treason. (The King didn't like this idea and soon passed a statute that put the kibosh on it!)
Perpetual entails are great when you want to protect land from creditors. But they stink when you need to sell or mortgage land. They also offend judges' basic notions of fairness because it seems unnatural for a dead donor to keep controlling his family forever. So between 1400 and 1700 judges argued back and forth about how long you could lock an estate up in fee tail. Eventually they agreed that donors have a right to lock up their estates for a "reasonable" time. By about 1720 this “reasonable” time was defined by something called the rule against perpetuities (RAP) which — this is a gross generalization! — automatically terminates all trusts and entails within three generations.
While RAP was evolving, however, lawyers were busy inventing a multitude of creative loopholes that would allow the current owner of an entailed estate to alienate property and “cut off” future claims from later heirs.
The most successful loophole was called Common Recovery. The basic concept behind Common Recovery was that you could "break" an entail by having the current heir in tail contract an illegal sale -- and then having the buyer file a legal action to enforce the sale. Under very particular circumstances (involving a third party warrantor) the court would issue a default judgment that gave the disputed property to the buyer and left the heir in tail with the "warrantee." The heir then passed the warrantee on to the future heirs instead of the actual land. This was called "suffering common recovery" because on the surface it looked like the tenant in tail actually lost the land. But really it was a kind of 'Oh, gee, twist my rubber arm and I'll have to give you my wallet!" deal.
Sound crazy? Just wait! On top of all the other bizarre details the "demandant" in a common recovery traditionally claimed he had been wrongfully dispossessed of his land by "Hugh Hunt." I have no idea who "Hugh Hunt" was or how he got involved in all these lawsuits. Honestly, I don't know what to tell you. English common law is very Lewis Carroll sometimes…
Despite all this magical language, common recovery was not a magic wand.
First, only the tenant in tail can do a common recovery. A common recovery turns a fee tail into a fee simple. It can’t turn a life estate or a future interest into a fee simple. So when there is no current tenant in tail, you are basically stuck in limbo with no option to sell, mortgage, or resettle entailed property.
Second, common recoveries are real estate transfers. Every common recovery case I've been able to read about involved selling or mortgaging a specific piece of real estate that was a piece of a much larger inheritance.
The best way to think of barring entail through common recovery is to see it not as a silver bullet but as an estate management tool. In practice a typical bar of entail through common recovery would go something like this:
The tenant in tail is the head of the family, and his son is getting married. The overall family estate is legally made up of many smaller estates -- let's call them farms to avoid confusion. Each farm has its own separate deed. The two fathers agree that the income from one of these farms will be set aside to provide an annuity for the bride if she is widowed. The marriage settlement gives the bride's family a mortgage against this farm to guarantee she gets her annuity. Legally, however, this farm is still locked up in a strict settlement that entails it through the male line.
Going back to our property law magic words, this means the groom’s father has a fee tail. But before he can mortgage the farm he needs to have a fee simple deed for it. Therefore the week before the marriage settlement is about to be signed, the groom's father "suffers common recovery" on this farm.
When the common recovery is complete, the family lawyers will have two pieces of paper in hand: a fee simple deed for the farm; and a warrantee against a third party who has promised to pay the value of the farm in the event of a default judgment. That empty, fictional warrantee will be passed down to the heirs so that they retain a theoretical right to redeem if for the value of the mortgaged farm.
Courts accepted the legal fiction of common recovery almost universally in cases like this, where a competent adult tenant in tail used it to responsibly manage family assets. But a common recovery that was obviously intended to steal assets from a named heir and give them to someone else would be very problematic. In Mr. Bennet's case, Mr. Collins would have the right to take him to court and challenge a common recovery on the Longbourn property. If Mr. Collins won, Mr. Bennet could keep Longbourn but he would need to pay out on the warrantee. This warrantee would have equaled the cash value of the real estate transferred -- in this case the cash value of Longbourn. Since Mr. Bennet doesn't have that kind of money, Mr. Collins would likely end up getting Longbourn. And Mr. Bennet would probably be bankrupted by legal fees!
I know that to non-attorneys this whole setup may sound strange. On the one hand, you have this clear-cut procedural loophole that seems to work based on arbitrary magic words. On the other hand, you have a nebulous body of common law that may or may not invalidate certain common recoveries based on mushy ideas about ‘fairness’ and ‘public policy.’
If you happen to be a corporate tax lawyer, you will immediately see a parallel with the modern concept of "piercing the corporate veil." And you will already have noticed that barring an entail by common recovery is fascinatingly similar to tax-driven transactions like reverse triangular mergers. On the surface it looks like the "tenant in tail" has suffered a default judgment and lost the property to a third party. But the real world result of this "loss" is that the tenant in tail has managed to break the entailed property into two separate pieces: a fee simple deed that he can freely sell or mortgage; and a third party warrantee equal in value to the land, which he can pass on to the future heirs in place of the entailed property. The "tail" goes to the heirs -- and the fee simple deed goes wherever the tenant in tail wants to send it. If you’re a tax lawyer, you already know where I’m going with this. If you're not a tax lawyer then you have to take it on faith: as with today's tax-driven corporate reorganizations, any loophole or fictitious legal procedure is vulnerable to challenge in court. And a judge who believes you have used it to cheat someone can almost always reverse the fictional procedure. A judge can ‘pierce the corporate veil’ when it’s used to cheat creditors. A tax court can invalidate any tax deal that doesn’t ‘pass the sniff test.’ And a judge could definitely invalidate a common recovery that he thought was fraudulent or immoral.
STRICT SETTLEMENT/ENGLISH ENTAIL
By the early 18th century, the rule against perpetuities had outlawed perpetual entails. This meant two things. On the one hand, no entail could last for more than about three generations. But on the other hand, judges were increasingly inclined to let you lock things up very tight indeed as long as you didn’t violate the rule against perpetuities. In this context, lawyers developed a very innovative estate planning tool called strict settlement — or the name I prefer because this is such a uniquely English institution — English entail.
English entail as an estate management system essentially amounts to placing a great landed estate in the hands of a father-son management team. It locks up property almost completely for one generation, but after the first generation the ‘management team’ can break the entail whenever they decide they want to rewrite the settlements. This system of continually breaking and recreating entails gets around the rule against perpetuities to create something almost as immortal as old medieval perpetual entails. As long as each successive father-son management team renewed the settlements, the entail could remain in force indefinitely.
But this is a new, sleek, flexible, adaptable version of entail! Because the entail is broken and reformed every generation, the male head of family got to tweak it every generation. If his estate was large enough, he could run a sort of shell game in which assets were constantly being moved in and out of entailment to keep the bulk of the estates locked up -- but with a healthy liquid capital reserve that remained easily accessible. Think of it like buying a CD ladder or investing in an index fund. You’re never gambling the whole estate on one throw of the dice — or one generation’s ability to produce a male heir. You’ve always got your eggs divided up into many baskets. This link to the Duke of Portland’s estate documents shows just how complex these transactions could be, with multiple parcels of real estate being shifted between settlements to meet changing obligations. One of the Duke of Portland’s marriage settlements actually required 43 separate common recovery actions!
But the resettling the entail at the time of marriage served a much more important purpose: it prevented fathers like Mr. Bennet from breaking ranks and leaving their estate to their daughters. Entail through strict settlement forced a man to disinherit his daughters before they were even born. . Eileen Spring and other economic and legal historians have presented extremely compelling evidence that this cruel practice was a feature, not a bug. And the result was precisely what Jane shows us at Longbourn: an impotent and demoralized father whose estate is so tightly locked up in entail that he cannot provide for his own daughters.
To take a closer look at the way an entail worked in a strict settlement, let's turn to the Knight family estate that Jane Austen's older brother inherited. The Knight family had a practice of adopting a distant cousin whenever the male line failed, which made their entail potentially immortal. This is how Jane Austen's brother became a wealthy landowner — and why he changed his name to Knight.
The following passage from one of the Knight family archives shows the typical language that lawyers used to entail property in a strict settlement:
Manors of Lordships, messuages, farms, land, tenements, hereditaments and premises were given to the use of Thomas May of Godmersham (who hath since in pursuance of a will, taken upon himself to be called Thomas Knight) for his life without impeachment of waste, remainder to the use of William Guidott, John Baker and Edward Munford and their heirs during the life of Thomas (May) Knight in trust to preserve the contingent remainder and after the death of Thomas Knight to use of the first and every other son of the body of Thomas Knight lawfully to be begotten successively in tail-male remainder to the use of William Lloyd of Newberry, gent for his life with the provision for supporting the contingent remainder and after his decease to use of the first and every other son of his body lawfully to be begotten successively in tail-male. Remainder to John Hinton of Chawton, clerk for his life without impeachment of waste with like limitation to preserve the contingent remainder and after his decease to use of the first and every other son of his body lawfully to be begotten successively in tail-male. Remainder to the right heirs of the testatrix Elizabeth forever.
Can you spot the magic words? Like most real strict settlements this a very complicated document with reservations of income, multiple remaindermen, and distant cousins adopting the family name to inherit (as Jane Austen’s brother eventually did). It’s easy to get lost in the weeds. Still, when you boil it down to basics you can end up with the classic inheritance pattern of a strict settlement. Here are the new and slightly more wordy magic words:
“To A for his life with limitation to preserve the contingent remainder and after his decease to use of the first and every other son of his body lawfully to be begotten successively in tail-male.”
This is the essence of a strict settlement: a hybrid between a life estate and an entail. In a true entail (“to A and the heirs of his body”) every heir is a tenant in tail who can bar the entail through common recovery. But in a strict settlement (“to A for life and then to the heirs of his body”) the first owner is only a tenant for life. And even the subsequent heirs aren't truly full tenants in tail because they are subject to the requirement to "preserve the contingent remainder." Using these particular magic words creates an entail that can’t be broken unless the current owner and his heir 'join together' to do it … exactly what Jane Austen tells us in Pride and Prejudice!
To understand why a tenant for life can’t do a common recovery, let’s go back to the bundle of rights exercise. Remember how you turned a fee simple into a fee tail by having the grandfather hand a stick to the oldest son in each generation to give them a future interest? Well, with a life tenant it works in reverse: the future heirs hold all the sticks; the life tenant only has the stick that represents the right to use the estate for life.
And what does a common recovery do? If you’re still not thinking like a lawyer, you might be tempted to say it ‘bars the entail.’ But if you’re thinking like a lawyer, you know that all common recovery really does is turn a fee tail deed into a fee simple deed. The warrantee that actually bars the entail is just a byproduct of this transaction. So just as you need the right catalyst to start a chemical reaction, you need the right deed to start a common recovery. Under the type of strict settlement that was in common use in Jane's era, the father and son (and sometimes a trustee as well) had to "join together" to act as the tenant in tail.
BACK TO THE LONGBOURN ENTAIL…
Combining what Jane Austen tells us with what I just explained about entails, we can now see that four people are involved in the Bennet family entail, and they each have a different bundle of sticks:
Mr. Bennet's father held Longbourn in fee simple
Mr. Bennet holds only a life estate
Mr. Bennet's son will be the ‘heir in tail’ until his father dies,and then he will be the ‘tenant in tail’
Mr. Collins is the remainderman in case the male line fails
How do we know that Mr. Bennet's father was the original donor? Because Jane tells us that Mr. Bennet can't cut off the entail without a son who is of age. Remember those medieval marriage gifts that were traditionally irrevocable until the bride died without children? Well, by 1800 this tradition had evolved into a specific sequence of magic words that made it impossible for the donee in a strict settlement to break the entail.
When Jane writes that “the son was to join in cutting off the entail, as soon as he should be of age,” she is telling us that Longbourn estate was a strict settlement and that Mr. Bennet was the first heir — the one who only holds a life estate.
Some scholars have argued that Longbourn wasn’t held in strict settlement because Jane uses the word “entail” But by 1800 pure entails were long dead, and no competent lawyer would have drafted anything but a strict settlement. When someone in 1800 told you that their estate was “entailed in the male line” they were talking about a strict settlement almost by definition. In calling the Longbourn strict settlement and entail, Jane is merely following common usage of her day. In contrast, however, her statement that Mr. Bennet has to “join” with an adult son in order to bar the entail is an extremely specific legal clue. In property law terms, Jane is telling us that Mr. Bennet needs to “join” his sticks to his son’s sticks before he can bar the entail through common recovery. And there is only one person who needs to do this: the life tenant in a strict settlement. The textual and historical evidence is overwhelming: Longbourn is held in a strict settlement.
This is bad news for Lizzie and her sisters! When a life tenant in a strict settlement doesn’t produce an heir, there is no way to reform the entail. This means that the entail ends and the property goes to the remainderman. And Jane has already told us that the remainder man is Mr. Collins. So unless Mr. Bennet miraculously produces a son, there is never going to be a tenant in tail who can break the trust in favor of the Bennet girls.
The risk of not having a male heir in the first generation is the biggest problem with entailment by strict settlement. It means that if the original donor’s grandchildren are all female, they can be completely disinherited. This is one reason why entails to the male line become so rare in the 20th century. (Obviously, the passage of better laws protecting married women's property also played role.) Today "fee tail male" settlements are only found in a very few aristocratic or royal families who want to tie their land and money to the family title. Everyone else just passes their stuff to their kids "per stirpes" -- in equal shares -- because we feel it's more fair. (And also because most of us would probably agree that it's good for our kids to work for a living…)
But poor Mr. Bennet is stuck with a measly life interest and no son to inherit. There were potential ways around this, including getting a private bill through Parliament or paying off Mr. Collins to go away. But these solutions are out of reach for the same reason that the entail is such a disaster for the Bennet girls: Mr. Bennet is broke. Then, as now, the uber-rich played by different rules than the cash-strapped middle class….
So that's it. The entailment in P&P was indeed unbreakable. Mr. Bennet did not legally have the authority to bar the entail. Nor did he have the wealth or influence to squeeze through the other major loopholes.
Jane was right!