Puzzling Legal Issues in Jane Austen’s Sense and Sensibility

From the desk of Laurel Ann Nattress: 

18th and 19th century primogeniture and marriage laws in England were very complicated, even for those who lived in the era. Jane Austen’s Sense and Sensibility is fueled by legal issues that are puzzling to our 21st-century sensibilities. It was a serious business however, impacting many lives.

When I first read the novel I would get stuck on the legal stuff, needing to know the rationale of why John Dashwood’s widow and daughters were impoverished, why Willoughby is dependent on his aunt, or why Edward Ferrars did not just dump his horrid fiancée Lucy Steele. To completely understand the plot and motivations of the characters, it became necessary to understand the power behind them. I was compelled to find the answers.

Austen begins the novel with the importance of inheriting estates. 

“The family of Dashwood had been long settled in Sussex. Their estate was large, and their residence was at Norland Park, in the centre of their property, where for many generations, they had lived in so respectable a manner as to engage the general good opinion of their surrounding acquaintance.” (Chapter 1)

I am not a professional scholar, nor am I a lawyer, so in deference to the academic and legal communities, my abject apologies for any blunders.

My top questions about the legal issues in Sense and Sensibility

1.) Why are the Dashwood widow and her daughters impoverished after the death of wealthy Henry Dashwood, – her husband, and their father? 

We know from chapter one that Henry Dashwood is the legal inheritor of the estate of Norland from his uncle, who was without issue.

The old Gentleman died; his will was read, and like almost every other will, gave as much disappointment as pleasure. He was neither so unjust, nor so ungrateful, as to leave his estate from his nephew; but he left it to him on such terms as destroyed half the value of the bequest. Mr. Dashwood had wished for it more for the sake of his wife and daughters than for himself or his son; but to his son, and his son’s son, a child of four years old, it was secured, in such a way, as to leave to himself no power of providing for those who were most dear to him, and who most needed a provision, by any charge on the estate, or by any sale of its valuable woods. The whole was tied up for the benefit of this child…” Chapter 1

English law supported primogeniture, the common law right of the firstborn son to inherit the entire estate, to the exclusion of younger siblings. Henry Dashwood had inherited the Norland estate upon the death of his uncle who was unmarried. Henry had a son by his first marriage named John, who by law would inherit the Norland estate. He, in turn, has a son named Harry, who would inherit the estate upon his father’s death.

The advantage of primogeniture is that it ensures that estates are not broken up and divided by numerous siblings or relatives, remaining intact and stronger. The downside is that younger sons get very little and must make their own way in the world, often going into the army or navy, or taking church orders, and daughters may get nothing and are entirely dependent upon their families.

In the opening of the novel and movies, the dying Henry Dashwood entreats his son John to take care of his ladies.

“Mr. Dashwood recommended, with all the strength and urgency which illness could command, the interest of his mother-in-law and sisters.” Chapter 1

In accordance with the law and times, the Dashwood ladies are at the complete mercy of the wishes of the heir, Mrs. Dashwood’s stepson, and her daughter’s half brother. If he chooses to not aid them with their finances, no law will support their claim.

2.) Why doesn’t Edward Ferrars break his engagement with Lucy Steele after he meets and falls in love with Elinor Dashwood? 

In Jane Austen’s time, a man was only as good as his word. Edward is a very principled and honorable man. He would never go back on his word.

I was simple enough to think, that because my faith was plighted to another, there could be no danger in my being with you; and that the consciousness of my engagement was to keep my heart as safe and sacred as my honour“. Chapter 49

An offer of marriage was a binding contract in England during this time. Broken engagements were very serious business, and if Edward severed his engagement, Lucy would have recourse in the courts with a breach of promise suit. The prospect of publicity, cost, and scandal was enough to scare most delegates into honoring their promise to marry.

“The engagement is considered a contract to marry and was legally binding on both parties. However, unlike most contracts, it could not be enforced because the civil courts would not coerce marriage, but the party breaking the contract was liable to damages. The contract had to be mutual and between parties competent to make legal contracts – for example, those who were old enough and sane. Frost, Ginger S. Promises Broken: Courtship, Class and Gender in Victorian England, (1995) page 16

The Hardwicke’s Marriage Act of 1753 prohibited clandestine and irregular marriages without the consent of the parents if the parties were not of legal age, (21). Since Lucy was underage, they could not have married in England, and the promise may not have been binding, since it is questionable if she was old enough to legally enter into such a contract, but she might be eligible for damages none-the-less.

3.) Why is Willoughby dependent upon the wishes of his aunt, Mrs. Smith of Allenham? Why does he use this connection as an excuse to abruptly depart for London, just when Marianne thinks he will propose marriage to her?

Willoughby is the heir of Mrs. Smith’s estate of Allenham Court, and even though he has his own estate of Cum Magna in Somersetshire, he is in debt and governed by finances.

My fortune was never large, and I had always been expensive, always in the habit of associating with people of better income than myself. Every year since my coming of age, or even before, I believe, had added to my debts; and though the death of my old cousin, Mrs. Smith, was to set me free, yet that event being uncertain, and possibly far distant, it had been for some time my intention to re-establish my circumstances by marrying a woman of fortune. To attach myself to your sister, therefore, was not a thing to be thought of.” Chapter 49

Later, he reveals that his initial intention was to propose to Marianne, and the regretful reason for his quick departure was his aunt’s knowledge of his indiscretion. He chose money over love.

“But in the interim — in the interim of the very few hours that were to pass, before I could have an opportunity of speaking with her in private — a circumstance occurred — an unlucky circumstance, to ruin all my resolution, and with it all my comfort. A discovery took place,” — here he hesitated and looked down. — “Mrs. Smith had somehow or other been informed, I imagine by some distant relation, whose interest it was to deprive me of her favour, of an affair, a connection — but I need not explain myself farther,” he added, looking at her with an heightened colour and an inquiring eye, “your particular intimacy — you have probably heard the whole story long ago.”  

“I have” returned Elinor, colouring likewise, and hardening her heart anew against any compassion for him, “I have heard it all. And how you will explain away any part of your guilt in that dreadful business, I confess is beyond my comprehension.” Chapter 49

4.) If estates pass to the first son only, how can Mrs. Ferrars disinherit her first son Edward, and pass it to her second son Robert, irrevocably? Do widows have the right to alter the will of their husbands and change primogeniture? 

This gets even more complicated, but a woman can inherit property or money if she is the only direct heir, and when she marries, a ‘settlement’ can ensure that the property or money stays with her children. A point in case is the first Mrs. Dashwood, who dies and leaves her fortune by settlement to her child, John Dashwood. Mrs. Ferrar’s fortune was her own, not her husbands, so when he died she still held control of the wealth. Another example from an Austen novel is of Lady Catherine de Bourgh in Pride and Prejudice.

“Your father’s estate is entailed on Mr. Collins, I think. For your sake,” turning to Charlotte, “I am glad of it; but otherwise I see no occasion for entailing estates from the female line. — It was not thought necessary in Sir Lewis de Bourgh’s family.  Lady Catherine de Bourgh, Pride and Prejudice, Chapter 29

If an estate is inherited through the male line, the widow can not alter the disposition of her husbands will, because by law, she does not own the property or cash. Her son inherits, or if there is not a son, then the next male heir. Willoughby is the next male heir to Mrs. Smith’s  estate of Allenham, even though he is a nephew. 

5.) If Mrs. Ferrars did not approve of Lucy Steele marrying her heir Edward and disinherits him because he will not break the engagement, why did she approve of Lucy marrying the new heir, her second son Robert?

When Edward and Lucy’s secret engagement is revealed, his mother disinherits him, passing the estate to his brother Robert, irrevocably. This means that unlike his brother, Robert is independent of his mother’s approval to marry. Robert did not need her blessings to marry Lucy, and it was Mrs. Ferrar’s just deserts for her heavy-handed dealings with the marriages of her children.

“However it may have come about,” said Elinor, after a pause, “they are certainly married. And your mother has brought on herself a most appropriate punishment. The independence she settled on Robert, through resentment against you, has put it in his power to make his own choice; and she has actually been bribing one son with a thousand a-year, to do the very deed which she disinherited the other for intending to do.” Chapter 49

Ok, if you are still with me at this point, you are a saint! All of these complicated connections established by Jane Austen spring from wills and entailments governed by the inheritance laws of Regency England. It is obvious these issues weigh heavily on Jane Austen’s plots and characters; – its importance deeply shadowing each of her novels and the climate of the times.

Be sure to mark your calendars and set your watches for Austen time on Sunday, April 6th, 2008 at 9:00 pm, for the Masterpiece Classic presentation of episode two of Sense and Sensibility, staring Hattie Morahan as Elinor Dashwood, Charity Wakefield as Marianne Dashwood, Dan Stevens as Edward Ferrars and Dominic Cooper as Willoughby. 

9 thoughts on “Puzzling Legal Issues in Jane Austen’s Sense and Sensibility

Add yours

  1. Interesting about the breach of contract bit. I knew the woman was the only one who could break the engagement (at great risk of scandal) but didn’t know the reasons.

    Liked by 1 person

  2. I think the Norland inheritance was controlled by an entailment, not primogeniture. If Mr. Dashwood inherited Norland through primogeniture, he would have been able to sell off some assets to provide dowries for the girls and a jointure for Mrs. Dashwood. It looks like the uncle took a liking to Henry and entailed the estate through Mr. Dashwood and John down to little Henry (and don’t think that John and Fanny didn’t name the kid after the uncle hoping for exactly that). Mr. Dashwood was obligated to pass the estate to John and John to Henry whole and entire. He only had use of the income from the estate while he was alive.

    If he had lived longer, he could possibly have saved some money from that income to provide for his womenfolk, but because he died only a couple of years after inheriting, there wasn’t time. He also could have perhaps persuaded Henry to let him break the entail and sell some of it, once Henry was older.

    It was the same situation as Mr. Bennet and Sir Walter Elliot–they couldn’t sell to help their cash flow, the estate was entailed, and it didn’t really belong to them in a way that they could sell any of it. They would have been cheating the heir.

    As to No. 2., I think if Edward had been free, Lucy could have gotten the permission of her guardian (I think Mr. Pratt is her guardian? Not sure) to marry Edward, don’t you think? It would have been such a good match for her, I don’t see her having a problem. The difficulties were all on his side. And I think Edward’s honor was at stake as much as a breach of promise. He kept his engagement because of his personal honor, though he did offer her the opportunity to cry off after his disinheritance. And once he was disinherited, I wonder if her uncle would have bothered with a breach of promise suit–it’s not like Edward could have supported Lucy. It wasn’t a good match for her anymore. I just wonder why she didn’t abandon him immediately. Perhaps she hoped Old Lady Ferrars would come around. But I totally agree with you–OLF got what she deserved. I think Edward must have been a foundling, or his father a very nice man. :-)

    Liked by 1 person

  3. Thanks for your insights Mags. Legal stuff is interesting, but confusing! So when someone establishes an entailment, I am assuming that it can never be ammended? It seems to be the proverbal speaking from the grave.

    I agree that after Edward had been disinherited, Lucy would not have pressed a breach of promise suit. No reseason, since all the money was gone! Good point.

    Cheers, Laurel Ann


  4. Thank you for this long, but informative post. I’d ferreted most of it out for myself in the past, but not all at once like this. Very handy, though I do agree with Mags in comment 2. It does seem like he was under the restriction of entailment rather than naivete as to his son’s and daughter-in-law’s characters.

    I’d love to teach this book in my AP or College English class, though at present we only have Pride and Prejudice in the book room.

    Liked by 1 person

  5. wow ! thank you sooo much !
    You are the saint here !

    All these have been bugging me for a while and I kept delaying my researches to understand better .
    Specially the Edward / Robert Ferrars bits were giving me hard times ^^.

    It’s very clearly explain . I’m very thankful for sharing those lights !

    ps: Forgive my english, I’m only a poor french Austen fan : )

    Liked by 1 person

  6. Thank you for this helpful information. I am doing research on women’s property rights in Edwardian England. Several laws had improved the lives of women by 1900.

    Many authors seem to think the laws applying in Austen’s era still applied in the Edwardian era, but I have a feeling that among people alive and adult at the time, only the very rich were living in the past. The poor were fighting for their lives and their continual run-ins with police and legal authorities kept them aware of changes in the law.

    Liked by 1 person

  7. On the whole you are right, but there is a bit of confusion between primogeniture and entailment. Primogeniture governs what happens to an estate if the owner leaves no will – the estate goes to the oldest son. however, if an estate is not entailed, the owner can write a will leaving the estate to whoever he or she wishes, (as Mrs. Smith threatens to disinherit Willoughby, that is to leave her estate away from him) or give away parts of the estate to whoever he or she wishes (as Mrs. Ferrars gives part of her estate to her youngest son Robert).

    However, once an estate is entailed, it goes to the closest male relative in the male line (that is, if the owner has no sons, it may go to the owner’s brother’s son, but not to the owner’s sister’s son), and no will can change that. The only way to break and entail would be for two successive owners sign an agreement canceling the entail. (e.g. if Mr. Bennet and Mr. Collins agreed to break the entail). Such an event is extremely unlikely – especially since by that act the future heir will lose his rights in the property. However, it did happen in some cases – e.g. if an estate had heavy debts, and it was advisable to sell some lands to pay off the debts and maintain the rest of the estate.

    Given the fact that Mr. Dashwood (the three sisters’ father) was disappointed at his uncle’s will, my conclusion was that Norland was not entailed up to that point, and Mr. Dashwood had hoped to inherit it free and clear, so that he could provide for his second wife and daughters. However, old Mr. Dashwood, becoming fond of the young Dashwood boy, secures the estate to John Dashwood and his son after Mr. Dashwood will pass away. That probably means that he creates an entailment – that is, from this point on, the estate will pass on to the nearest male heir, and the girls get nothing.
    John Dashwood could help them with money if he chose, but…

    Liked by 1 person

  8. I actually lost sleep over the question of why Robert was free to marry Lucy and keep the inheritance, it aggravated me so. Thank you for this!

    Liked by 1 person

  9. This is extremely interesting! Always been curious about the inheritance laws, especially with the Ferrars. Thank you for the write up!
    I love the timelessness of this. You wrote in 2008 and I’m reading this in 2022 :)
    Thank you for maintaining this site!


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