Are you as baffled by the entail in Downton Abbey as its fictional characters the Crawley family? Any Jane Austen fan worth their weight in syllabub will have the answer for you. It also helps if they are a practicing attorney. Please welcome Janeite, lawyer and Downton Abbey fan James F. Nagle today. He has kindly agreed to explain all the property law issues that fuel the plot in this new hit series currently airing on Masterpiece Classic PBS. Downton Abbey has millions of viewers entranced, and Jane Austen aficionados glad they previously researched English primogeniture law.
Laurel Ann asked me to write a short blog on the legal subtleties of Downton Abbey.
Basically, Lord Robert, the Earl of Grantham, is the head of Downton Abbey, a magnificent estate, in the Crawley family for centuries. The Earl and his wife had no sons which is a major problem because the estate is entailed to a male heir. While the time is 1912, the laws on inheritance mirror those in Jane Austen’s time. (Major changes would occur later in the century but that is another story.)
It is vital to understand the importance that ownership of an estate had, both in 1912 and in the Regency-era. More than just a home, it made a family part of the aristocracy or gentry. Historically, the land produced a steady income that freed the family from having to earn its living by daily effort. They could dabble in the arts, become involved in politics, or lead a life of idleness.
This gave land a cachet that went beyond cash or movable goods. It was not only the major source of wealth in an agricultural community; it was the ultimate status symbol, not just for one person for one generation, but on the family so long as it lasted. Owning land was essentially a sacred trust for land owners. They held the land in trust for their future generations and thus had a duty to preserve what had been passed on to them.
Today when we think of family, we think of spouses, children, parents, grandchildren. But in Jane Austen’s time and in 1912, “family” was a much broader abstract concept with individuals as interchangeable commodities. How else can you explain making sure that property goes only to a male heir, including probably someone that you’ve never met? The present owner or occupant was merely a temporary custodian for the next family member.
The Earl and Countess of Grantham married for convenience. Her dowry fueled the struggling estate and his title made her an aristocrat by marriage and her children by birth.
That love of the estate and duty to the generic family is a main plot driver. The Earl had married a rich American, Cora, to secure her fortune to run the estate. This was by no means unusual. Many members of the aristocracy had become “land poor” by the early days of the 20th Century. These gorgeous estates, which required a battalion of servants, had been self-sustaining for centuries. Now they needed an influx of cash to be kept up. Hence, the drive to marry for money intensified. That brings us to a discussion of women’s rights which, especially regarding property, were severely limited.
Periodically you will hear that women could not own property in Jane Austen’s time. This is not accurate. Certainly Lady Catherine de Bourgh, Lady Russell, or Mrs. Ferrars owned property. If there was a husband, the woman could not normally own property. It was subsumed into him. Blackstone, in his commentaries written in the 1760s put it this way: “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 . . .”
Two dangers threatened a landed estate: 1) Division. If an estate were divided equally between all sons or children over several generations, then an estate, originally sufficient to make its holder a member of the gentry, became a multitude of increasingly smaller farms that, individually, didn’t qualify descendents for the same social status; and 2) Dissipation. If the head of the family (a wastrel or a foolish speculator) were to sell, voluntarily or forced by creditors, his land to raise funds, and then fritter away the sales proceeds, the whole family sinks into obscurity, obviously not only an embarrassment but a breach of faith to one’s ancestors and descendants. Primogeniture was devised to eliminate division. Entailments were devised to combat dissipation.
With that background, it is perfectly logical and reasonable for a landowner to give the estate to one child. Moreover, it then becomes perfectly logical to give it to the oldest child. That way, the future squire of the manor can be designated at birth.
Finally, considering what was said earlier about women’s rights, it makes little sense to give it to a daughter. If the Earl gave it to a daughter and she marries someone, a Mr. Wickham, for example, he does not merely have access to the estate, it becomes his estate; it is subsumed within him. So for these reasons, the practice of primogeniture began which keeps the estate intact and under the control of the head of the family in each generation.
A picture of Chawton Manor House circa 1913, the same era as Downton Abbey’s setting. Jane Austen’s elder brother Edward inherited the estate in 1794, not from his father, but from a cousin, Thomas Knight, who without any children made Edward his heir. The estate had previously passed down in the family through the female line because the property was fee simple and not entailed. (editor’s note)
While primogeniture was the preferred inheritance method, it was not the absolute law.
The best example in Jane’s writings of a departure from primogeniture was Mrs. Ferrars in Sense and Sensibility. Unhappy with her son Edward Ferrars’ choices, she simply wrote him out of the will and gave it to his younger brother, Robert.
The Earl of Grantham has no sons but three daughters—Mary, Edith, and Sybil (shades of P&P!!). Miss O’Brien, Cora’s maid says that women cannot inherit. That is not correct. They cannot inherit the title but if the Earl owned Downton Abbey outright (in fee simple absolute) he could leave it to his wife or his three daughters and ignore the rule on primogeniture.
Unfortunately, the Earl does not own the estate outright. It is entailed. An entail was a legal device to ensure that property would be handed down in a way that suited the ancestor, normally to a male heir, thus keeping the family estate intact.
In the entail system, the property owner, The Earl’s father, does not pass it in fee simple to the son. The Earl has a life estate, meaning he has the full use of the property during his life and, at the end of his life, it will pass to his son or to someone else in the family- often the closest male heir.
The Earl had a good relationship with the heir, his first cousin James Crawley, and there was even an engagement between the Earl’s oldest daughter Mary and the heirs son Patrick. However, the heir and his son have both perished on the Titanic. So the new heir, Matthew Crawley, is a lawyer with no previous relationship to the Earl. At the Earl’s death, the new heir gets the estate, including Cora’s money!!!! That is the main plot driver in the story – how to break the entail.
When I read that the characters were trying to get out of the entail, I assumed they were talking about “cutting off” the entail, which was common in Austen’s time and is mentioned in P&P as Mrs. Bennet’s plan when she first married Mr. Bennet. The way to cutoff an entail would be for an agreement of a current tenant and the next male heir, who would then hope to do the same with his heirs.
Violet, the Dowager Countess of Grantham wants to “smash” the entail and joins forces with her daughter-in-law to advocate her son to pursue legal methods.
However, having seen the first episode, that is not what is going on. As Maggie Smith’s character, The Dowager Duchess of Grantham, states, they want the entail to “be smashed” – not a precise legal term. The Dowager and Cora want to separate Cora’s money from the building and lands of Downton Abbey, so that Cora and her daughters will retain the money, or what is left of it, that she brought into the marriage. Therein lies the difficulty. As stated above, typically a woman’s property was subsumed within that of her husband’s at the point of the marriage. It could, however, be fenced off by means of a trust or other legal document. That “loophole” is what the Dowager and Cora are trying to find. However, the family lawyer, Murray, has no hope.
He opines to the Earl that the Earl’s father had “tied the knots pretty tight” when the Earl and Cora were married. I take that to mean that he had drafted an agreement by which Cora’s money was unquestionably and irrevocably transferred to the husband and therefore to the estate with no hope of successfully challenging it. I presume that the document is not so patently one-sided that a judge would throw it out as unconscionable. It probably had enough legal language to indicate that Cora was receiving something valuable in return and that portions were being settled on any future daughters (the Earl mentions this in his conversations with the Duke of Crowborough). So any reviewing judge might well conclude that while the agreement might have unfortunate consequences now, it was not unconscionably one-sided at the time of drafting and signing.
Indeed, it is that legal conclusion that forced the Earl not to even attempt a challenge. First, it would be a waste of time and money. Second, even if he were successful, the title, land and buildings would go to Matthew, the new heir, but the money needed to maintain the property would be kept by Cora. As a result, Downton Abbey would fall into disrepair and therefore disrepute and the new heir might be forced to sell it off in total or in part. This, the Earl concludes, is a breach of that sacred trust to the family and to the surrounding community, which is obviously so dear to him.
Stay tuned!
James F. Nagle is a lawyer in Seattle. He is the membership chair of the Puget Sound Chapter and the National Secretary of JASNA.
Thanks for the ‘briefing’ James. One can never know enough about the “great matter” of the entail in English property law. We shall see how the Crawley family proceeds and if the entail is indeed “smashed.”
Episode two of Downton Abbey airs next Sunday, January 16th, 2010 at 9pm ET (check your local listings)
Further reading
- Primogeniture at Wikipedia
- The history of Chawton Manor House
- The Fee Entail in Pride and Prejudice at Jane Austen’s World
- Read my preview of Downton Abbey
- Read my recap & review of episode one of Downton Abbey
- Visit Downton Abbey at Masterpiece Classic online
4838-5795-2008, v. 1
© 2007 – 2011 James F. Nagle, Austenprose
Laurel Ann (Austenprose)
Virginia Claire
Christina B.
RegencyRomantic
Kimberly (Reflections of a Book Addict)
shelleydewees
Br. Paul Byrd, OP
Aia A. Hussein
Lucy Warriner
Great post!! I loved this first episode and this post really helps with the description of the legals matters.
Very interesting read! Thanks a bunch.
Of course, I was familiar with the concept of an entail due to P&P (thank you, Mr. Collins!) but one can never know enough about such things.
I rather like Matthew so I’m rooting for him to keep the estate.
This is hugely interesting, Laurel Ann! Thanks for asking Mr Nagle this precious contribution. Though I know enough about entailed property thanks to my interest in Jane Austen’s work, I had some difficulty at understanding the legal question in Downton Abbey in detail. This blogpost was just perfect help. Very useful.
Very interesting! Maybe you can answer another question (admittedly not related at all to the entail) — twice, Cora addresses the Duke directly as “Duke,” once when he arrives and once at the dinner table. Not “Duke Crowborough,” just “Duke.” Everyone else says “Your Grace.” Is Cora’s form of address not wrong? Do you suppose it’s a deliberate mistake, put in so that viewers will understand he’s a Duke? It just sounds so odd to me.
OK. I am not an expert on forms of address for peerages, but I think that Lady Grantham should have addressed the Duke of Crowborough as your grace and not Duke. You do not use Duke in conversation, only when you are talking or writing about the Duke. This may have been written this way to show she was an unsavvy American? Have to speculate, since she had lived in England for over 20 years and surely would have know all this stuff by now. Please someone correct me if I am wrong.
Update. OK, I will correct myself after digging deeper. According to an excellent web site written by Laura Wallace, how a Duke is informally addressed depends on your position in relationship to him.
“Your Grace” (by inferiors) or “Duke” (by social equals) the first time in conversation, followed by “Sir” (or “Glastonbury,” if addressed by a very close friend or relative).
So, since Cora is a Countess and not a Duchess or greater, she should have addressed the Duke as Your Grace the first time she welcomed him to Downton Abbey and later as Sir.
I have also committed a faux pas by using the informal address of Cora. I should never use her first name alone. She is Lady Grantham, Her Ladyship or Cora, The Countess of Grantham. I think!
Thanks, Laurel Ann! Makes sense to me.
Thank you for this post! I am an attorney on the other side of the country in New England and I know that I studied this in wills and trusts, but it was boring then–less boring in the context of Jane Austen! A word to the wise for wills and trusts professors! And this post helped explain the matter to me succinctly. One question–why were the great estates suddenly struggling and could no longer self-sustain? Thanks again!
–Kimberly
Regarding large estates struggling starting in the late 1800′s and the need for heiresses money to fuel their future? I think, in general terms, that it was because most of the large estates in England earned their income from the land, by agriculture or leasing property. As England and the world became more industrialized, bigger money was being made in trade and production of products than in agriculture. Just a shift in economics.
Excellent article. Thanks.
Thank you for the post, it’s very informative. My only question after watching the show is this. Why are they in such a hurry to find a new heir? Can’t the Earl of Grantham just stay where he is and continue his roll with the estate? Do they have to pass it on now for a reason?
Hi Jean, the Earl of Grantham’s heir is by blood line, so there is no hurry to turn over the estate. his cousin Matthew will inherit after his death, unless the entail can be broken.
The issue was regarding his daughter Mary. If the marriage settlement can be broken and her mother’s money separated from the estate, she would be an heiress and her marriage possibilities greatly improved. If the entail can be “smashed”, then her father could pass the estate to his daughter. Two different issues. The pressing need is for his daughter’s benefit whose life is in limbo over the two issues.
My sister and I had the pleasure of hearing Mr. Nagle speak on this very subject at the JASNA (Jane Austen Society of North America) meeting in Portland in October 2010. You are a wonderful combination of a Janeite, a great lawyer and a wonderful speaker! So glad that many others will now read your wonderful explanation of this unusual but very interesting legal topic.
I caught half of the first episode thanks to my faulty DVR. I’m thankful for this post! I feel much clearer now.
Thank you for an interesting and informative article.
Thank you!!
This is a great overview of the legal system at that time. I worked in a 17th Century house in the south west of England for a time. It was a dowager house. When the eldest son (or heir) took over the main home the widow was sent to another house (dowager house) to live (usually once the heir or son was married). Life was very precarious for women.
Ann
[...] Downton Abbey Entailed? Understanding the Complicated Legal Issues [...]
What about the Married Woman’s property Act of 1870? According to that, a married woman could keep her own property and it was not totally subsumed into her husband’s estate as it had been for the previous centuries. That act was a big step forward for English married women.
The complaints against the entail in Downtown Abbey sound like those Mrs. Bennet made in Pride and Prejudice a century before. That , at least, hadn’t changed.
There is a contradiction in what I have read– I didn’t see the episode– if the old earl tied up everything pretty tight, this had to have been done when the marriage settlements were written. If the money and estate are tied by the marriage settlements, it is not strictly an entail, is it?
The married women’s property act had something to say about her property. The father of the earl ( who is never Lord Robert, btw) is said to have tied up the money too tightly for them to free some for the daughter. That has nothing to do with the entail. Money can’t be entailed.
As James mentioned, there are two separate legal issues: the marriage settlement and the entail.
The large landed estates did suffer from the change from agriculture based economy to an industry based economy. However it was death duties and other forms of taxes which really hit them hard and led to the need for rich wives.
Also, income was no longer greater than debt obligations. Many had been doing the equivalent of living on their credit for years. For the most part the money hadn’t been lost in gambling but was spent in modernizing the houses. The houses were often hundreds of years old. Althorp , home of Earl Spencer, is now 500 years old. It is a costly business to put plumbling, heating systems, & electricity into such old houses.
Hi Nancy, thank you for the information about death duties and estate improvements. That makes sense.
I have been very interested in the conversation about the entail, esp. Nancy’s comments–ah, death duties–now makes sense. Does anyone know of a book or a scholarly article that might discuss the historic perspective of legal ownership of property by women and/or property ownership of large estates? I looked on line and there is some, but I was hoping someone might know a definitive work. Thanks!
Hi Kimberly. I recommend “The Decline and Fall of the British Aristocracy” by David Cannadine. Chapter 3 “Dispersal of Territorial Wealth” is particularly apropos, but the Prologue is also an excellent overview.
Thanks you for answering Roberta – not being an attorney, I could not advise her on a book.
Nancy raises a good point. The plight of women caused Parliament to act in two laws. The Married Women’s Act of 1870 allowed women to keep, as their own property, money they earned during the marriage – say by wriitng a novel. Another act in 1882 extended that to more classes of property. Both laws, however, had loopholes and the new protections could be waived through careful drafting of the marriage documents which the Earl’s father had apparently done. Then, as now, some lawyers specialized in finding and exploiting loopholes in new statutes.
Where, I think, Fellowes got it wrong is this:
were Cora, Lady Grantham’s money separated from the property, then all three of her daughters could inherit the money, equally or not, as she chooses. Mary would not be the sole heir(ess). Primogeniture does not apply to her money, which her daughters can inherit.
The problem here is that it cannot easily be separated from the estate, and if it were possible, the estate could not be maintained without it. But were it possible, then Mary not only need not be, but typically would not be her mother’s sole heir. Girls generally inherited equally.
Alison, I have deleted your second comment in this tread because it off topic. We also do not discuss issues that would spoil the plot for those who have not seen this episode yet. A reply to your questions, if they could be answered, would be pure conjecture. Only Lady Mary knows why she was with Pamuk and how far their relationship went.
I thought the 2nd episode was broadcast on 1/16! Was it not then?
I thought the contradictions I mentioned were inherent in that episode, where Lady Mary seemed to act one way but later answers her mother’s question in the negative. But your blog may not be the right forum to discuss the perceptions of those who viewed the episode in question of what really passed between them.
Hi Allison – the posting guidelines are pretty simple 1.) Keep it on topic to the post. 2.) Keep it civil. 3.) Keep it family friendly. 4.) Do not reveal major spoilers without warning.
If you would like to to discuss episode 2 of Downton Abbey, you can do so at Downton Abbey: Episode Two on Masterpiece Classic PBS – A Recap & Review. All comments are welcome and encouraged, as long as you abide by the rules. Please rephrase your questions and post them in the appropriate post. Thank you for your cooperation.
Cheers, Laurel Ann
Whatever happened to Alison’s comment on Cora, Land Grantham’s fortune, which was “awaiting moderation”?
Did it just disappear? :(
A – nothing “happened” to Alison’s comment. Since you have never commented on this blog before and have no history here, all of your comments are awaiting moderation. This is common practice on most blogs and web site message boards. I apologize for the delay, but I do have a life which includes a job and other responsibilities and cannot always be here the moment a comment it posted.
Laurel Ann, it didn’t show earlier as “awaiting moderation” as the 2nd comment did. So, it looked like it had disappered. However, it appears not to have permanently disapperead, as it’s been posted now. For whatever reason, it temporarily disappeared, unlike the 2nd comment, which showed as “awaiting moderation.”
I, too, am a lawyer, and find these legal and inheritance issues delightful puzzles. The issues of women’s lack of rights is another more serious matter. However, the major changes of the 19th century in England grew out of the changes in suffrage due to the Corn Laws, and the movement of workers and others with agriculture-based skills off the land and into newly burgeoning towns and cities seeking new types of work, where it was available. As a result, agriculture itself changed abruptly and radically. Thomas Hardy was very conderned about this in “Tess of the Durbervilles.” He first depicts the situation of milkmaids, working at a humanely managed dairy farm. Later Tess is forced to work in the North at a bare subsistence on a crudely run farm (one could say cruelly run farm in Hardy’s view). The world of Downton Abbey, with its many fairly content servants, as presented to us, is far from the England with its new “proletariat,” immigration, migration from rural self-sufficiency, and the resulting radical changes in the lives of all the evolving classes. In fact, in the 1890′s one of the earliest waves of looking back at rural life as “blissful” and “natural” occurred. To some degree, “Upstairs, Downstairs”, showed us more of that. We must not forget the concerns of Dickens and George Elliot in their fiction.
Thank you for taking the time to answer Roberta! Off to see if my library has it!
[...] Downton Abbey Entailed? Understanding the Complicated Legal Issues [...]
[...] Downton Abbey Entailed? Understanding the Complicated Legal Issues [...]
[...] Downton Abbey Entailed? Understanding the Complicated Legal Issues [...]
[...] Downton Abbey Entailed? Understanding the Complicated Legal Issues [...]
Very good explanation of the entail problem. Easy to read and understand. One further point on the reasons that great English estates needed rich American brides to infuse cash into land-rich and cash-poor English families. Starting in the 1880′s there was a steady depression of farm prices, and thus farm values, due to farm mechanization and better pesticides, and to rapidly increasing production in other parts of the world: primarily the U.S. which was rapidly modernizing and expanding after the Civil War; and to a lesser extent in Argentina, India, Canada, and Australia.
One big thing strikes me about the three daughters of Downton Abbey as World War I starts killing off huge numbers of young British men. The three daughters are unknowingly about to enter a period where there was a truly severe shortage of men their age. This is a work of fiction, of course, but there would have been a very good chance that one or two of the three daughters would have not been able to ever find a husband. The numbers of “old maids” skyrocketed all throughout Europe after WWI. One wonders if the second year of Downton Abbey will show one or more of the three daughters entering business/professions/politics but growing older without any prospect of marriage. Further, among the nobility and gentry there was a real conundrum for women of noble or gentle birth who could not find a husband of equal status, and who faced the difficult prospect of looking for a husband in a “lower” class. There were many instances in the 1920s of European women quietly “sharing” a man in order to have children. One of the most poignant sights in English movies of the 1960s and 1970s is the stereotypical “old maid” with the fading photo of a WWI soldier by her chair – a woman, now old, who was unable to find a husband when WWI dramatically altered the balance between males and females of that cohort. I think this would make an interesting plot or subplot for future segments of Downton Abbey. It has been happening in real life among women in the former Soviet Union for the past 20 years (I know – I married a beautiful Russian girl who had little prospect of finding a decent husband in her country). Lots of interesting stories there.
In two enraptured sittings I devoured the entire 2010 season. With 2011 looming before us we can only hope that Lady Mary accepts her cousin’s proposal of marriage and that the war will kill the evil within the footman.
All one need do is grab a good dictionary and define the appropriate meaning of “entail” as used in this matter. Then so much falls into place.
Thanks very much for the historical context.
Oh, dear. Oh, dear! What shall poor Cora and the daughters do?
(I poke fun, but I’ll be watching the whole darned thing.)
Grrrr.
For further reading about estates and entails, the Jane Austen Society of North America (JASNA) had an excellent article by Enid G. Hildebrand in the 1982 issue of “Persuasions” titled “Jane Austen and the Law”. This is available online at this link:
http://www.jasna.org/persuasions/printed/number4/hildebrand.htm
Roberta
What if Mary has a son before the Earl dies? Could the Earl’s grandson inherit over Crawley? Or if Crawley died childless would the Earls grandsons be eligible as heirs?
No. The estate always passes to the male heir. The estate is entailed to the male line.
[...] the post here Advertisement GA_googleAddAttr("AdOpt", "1"); GA_googleAddAttr("Origin", "other"); [...]
[...] Downton Abbey Entailed? Understanding the Complicated Legal Issues in the new Masterpiece Classic Se… [...]
[...] I found this amazing site this morning. It will probably only appeal to me and some select family members, but it made my [...]
As Series II begins at Downton Abbey, the entail of the estate continues to be the beating heart that pulses beneath the plotline! Thank you for a great post. And as a Jane Austen fan, am delighted to find this blog.
I thank you for this post. I wish that Maggie Smith would read it and they add it to the DVD or the show, or perhaps they post it on the PBS site as a resource.