Regency History

Entails: the Real Deal

“About a month ago I received this letter…It is from my cousin, Mr. Collins, who, when I am dead, may turn you all out of this house as soon as he pleases.”

“Oh! my dear,” cried his wife, “I cannot bear to hear that mentioned. Pray do not talk of that odious man. I do think it is the hardest thing in the world, that your estate should be entailed away from your own children; and I am sure, if I had been you, I should have tried long ago to do something or other about it.”

Jane and Elizabeth attempted to explain to her the nature of an entail. They had often attempted it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason.

Pride and Prejudice, by Jane Austen p. 207
by Hugh Thompson

The trope of an entail to complicate matters of heredity and fortune is well known to all readers of historical fiction. Even Jane Austen used it in Pride and Prejudice to explain why “the business of (Mrs. Bennet’s) life was to get her daughters married” (p.180). Unlike Mrs. Bennet, however, most of us know what an entail is, and generally how it works, but when it comes to how one can be broken, there seems to be a lot of confusion.

An entail, the idea of which had originated in the 1400s, was created in the first place to keep the property of a family intact—to prohibit its being parceled up each generation until there was hardly anything left worth passing on. By securing the entire property to one child—usually the eldest son—the family name was guaranteed the dignity of landed property in perpetuity. However, sometimes situations occurred to make the entail undesirable—as in the case of the Bennets who, lacking a son, would happily have split up the property amongst their five daughters rather than lose it all to a man “nobody cared anything about” (p. 207). In this event, it would be desirable to break the entail.

It turns out that breaking an entail was not doing away with it, but recreating it. An entail was in force for three generations: the present owner, to his heir, to his heir; then it would legally end. If the middle generation wished to change things, he—generally the son, once he came of age—would have to prove that the entail was illegal in some way. But since entails were almost always legally sound, there was no way to make a case.

But the British gentry were resourceful! They came up with a wild yet admittedly ingenious solution to thwart the system, which somehow became the accepted mode—and this is why people are so confused about it. The solution was that the present owner and his heir would together engage in a farcical legal battle called a “common recovery” with an imaginary opponent who supposedly had laid a claim to the estate.

I’m totally not kidding. This is a documented process that happened over and over and over, and rather than be blown away by how crazy it was, people just accepted it as the way to get the thing done.

Exemplification of a common recovery of messuages and land in East Markham and Tuxford, Nottinghamshire; 1817 (from resource, below)

Anyway, with an outside claimant—played by a court clerk or paid actor who often went by the name of, get this, John Doe—the entail would no longer be legal, and thus it would be broken until the claim could be decided. But then the imaginary claimant would conveniently not appear for testimony, and being found in contempt of court, would lose his claim to the estate. Now the property reverted back to the present owner, but the entail was still broken, so the current owner of the property, with the collusion of his heir, could recreate the entail, making adjustments such as selling off land in order to free up money, and the new entail would then carry to the heir’s second generation.

This slick little process worked beautifully, but could only be accomplished with the agreement of the heir, who must be of age. This generally was not a problem if the heir was the son, who would have a vested interest in the well-being of his family. But if the heir was a cousin or someone farther off in the family tree, there was little to no hope they would sacrifice their inheritance for the welfare of their relations, pathetic though their situation at his inheriting may be. This was why it was not even suggested in Pride and Prejudice that Mr. Collins would collude in breaking the entail because, absurd as he was, he was very much aware of the value of the Longbourn estate to himself.

Even if the heir was the son, however, it was quite possible that he would refuse to collude, especially if he had a bad relationship with his father, or knew that breaking the entail would only benefit the present owner and not himself or other members of the family. In my story, Romance of the Ruin, Lord Helden’s father was a neglected only child, and refused to collude with Old Lord Helden because he had no desire to enable his father’s abuse of himself in any way, so the entail carried to his son, where it naturally ended.

Not surprisingly, the British legal system eventually grew tired of this ridiculous circumvention of the law, and finally outlawed entails in 1833.