Jane Austen as a writer about law

Some notes on Sense and Sensibility and Pride and Prejudice

There were a couple of significant Jane Austen anniversaries this year.

It was the 250th anniversary of her birth earlier this month, and it was the 30th anniversary of the best adaptation of one of her novels.

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(Of course, many of the costume drama adaptations of her works are good as costume dramas. But the glory for me of her novels is in how she uses the written word and the gaps between those words - what she writes and what she does not write, and how she reveals miscommunications and deploys irony. Turning the stories into visual period feasts seems awkward. You may as well just watch Bridgerton. And, again for me, perhaps only Clueless gets to the essence of a character she created.)

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To begin with a disclosure of bias: I am a Janeite and I regard her as the greatest writer in the English language. You no doubt may disagree, but you should know this as a starting point.

The implication of regarding her as the greatest writer is that she is likely to be a great writer on any topic she covers: from gardens to what we now call stately homes.

But I am a legal commentator, and it is her writing about law that I want to discuss here. For I would like to make a case for her being a great writer about law - to put alongside Franz Kafka and maybe Charles Dickens.

The thing is though you hardly know she is writing about law - she describes highly complex areas of law deftly. You take in the law’s significance and the predicaments in which the law places her characters and how legal relationships drive the plot.

Let us see how she does it in her first two novels, Sense and Sensibility and Pride and Prejudice.

(Note that in the quotes below the emphasis, of course, has been added. For convenience I have taken the texts from my Kindle version of the complete novels.)

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Sense and Sensibility

Here is the famous first paragraph:

The family of Dashwood had long been 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.

Straight away, like a skilled land law lecturer, she distinguishes between an estate, a residence, and property.

She then explains the significance of an estate.

The late owner of this estate was a single man, who lived to a very advanced age, and who for many years of his life, had a constant companion and housekeeper in his sister. But her death, which happened ten years before his own, produced a great alteration in his home; for to supply her loss, he invited and received into his house the family of his nephew Mr. Henry Dashwood, the legal inheritor of the Norland estate, and the person to whom he intended to bequeath it.

Austen soon moves on to showing how this affects others.

By a former marriage, Mr. Henry Dashwood had one son: by his present lady, three daughters. The son, a steady respectable young man, was amply provided for by the fortune of his mother, which had been large, and half of which devolved on him on his coming of age. By his own marriage, likewise, which happened soon afterwards, he added to his wealth. To him therefore the succession to the Norland estate was not so really important as to his sisters; for their fortune, independent of what might arise to them from their father’s inheriting that property, could be but small.

Now, having set out these basic elements of property law and succession, she turns to the crucial legal development (accompanied with gentle wit).

The old gentleman died: his will was read, and like almost every other will, gave as much disappointment as pleasure.

Austen now does some sophisticated legal world-building, having given readers the fundamental points, mixed with doses of characterisation.

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, who, in occasional visits with his father and mother at Norland, had so far gained on the affections of his uncle, by such attractions as are by no means unusual in children of two or three years old; an imperfect articulation, an earnest desire of having his own way, many cunning tricks, and a great deal of noise, as to outweigh all the value of all the attention which, for years, he had received from his niece and her daughters. He meant not to be unkind, however, and, as a mark of his affection for the three girls, he left them a thousand pounds a-piece.

And then we move with speed to the second legal development: the nephew’s death.

Mr. Dashwood’s disappointment was, at first, severe; but his temper was cheerful and sanguine; and he might reasonably hope to live many years, and by living economically, lay by a considerable sum from the produce of an estate already large, and capable of almost immediate improvement. But the fortune, which had been so tardy in coming, was his only one twelvemonth. He survived his uncle no longer; and ten thousand pounds, including the late legacies, was all that remained for his widow and daughters.

In the passages above we see terms like “secured” and “tied up” - but now Austen changes gear so as to emphasise the relative weakness of mere assurances, recommendations, and promises.

His son was sent for as soon as his danger was known, and to him Mr. Dashwood recommended, with all the strength and urgency which illness could command, the interest of his mother-in-law and sisters.

Mr. John Dashwood had not the strong feelings of the rest of the family; but he was affected by a recommendation of such a nature at such a time, and he promised to do every thing in his power to make them comfortable. His father was rendered easy by such an assurance, and Mr. John Dashwood had then leisure to consider how much there might prudently be in his power to do for them.

[…]

When he gave his promise to his father, he meditated within himself to increase the fortunes of his sisters by the present of a thousand pounds a-piece.

[…]

And so by the following chapters we already know the truth of what Mrs. John Dashwood says about this.

“And I must say this: that you owe no particular gratitude to him, nor attention to his wishes; for we very well know that if he could, he would have left almost everything in the world to them.”

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The legal situation of others at the house as mere visitors - with no rights in respect of the residence - is also explained, almost in passing, in the first and second chapters.

Mrs. John Dashwood, without sending any notice of her intention to her mother-in-law, arrived with her child and their attendants. No one could dispute her right to come; the house was her husband’s from the moment of his father’s decease

[…]

Mrs. John Dashwood now installed herself mistress of Norland; and her mother and sisters-in-law were degraded to the condition of visitors.

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By the second chapter Austen is being even more skilful and confident in how she explains the law.

In a conversation between John Dashwood in his wife, we have this exposition dump which - because of the characterisation and framing - seems entirely natural to come from the mouth of Mrs. John Dashwood.

“An annuity is a very serious business; it comes over and over every year, and there is no getting rid of it. You are not aware of what you are doing. I have known a great deal of the trouble of annuities; for my mother was clogged with the payment of three to old superannuated servants by my father’s will, and it is amazing how disagreeable she found it. […]”

In the hands of most other writers such an explanation of annuities would have jarred. But by this point, we think this is exactly what this character would say and that she would also say it in just this way.

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Pride and Prejudice

Unlike Sense and Sensibility, Austen in her second published novel waits a few chapters before she explains the relevant law.

And now she is not even full sentences, just the first clause of this sentence in chapter 7

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; and their mother’s fortune, though ample for her situation in life, could but ill supply the deficiency of his. Her father had been an attorney in Meryton, and had left her four thousand pounds.

Even if you read a lot about the law you will rarely, if at all, find a complex legal concept - an entail - explained so succinctly - and in less than a full sentence.

We now know enough to deal with this key passage a few chapters later.

“About a month ago I received this letter; and about a fortnight ago I answered it, for I thought it a case of some delicacy, and requiring early attention. 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 tried to explain to her the nature of an entail. They had often attempted to do it before, but it was a subject on which Mrs. Bennet was beyond the reach of reason, and she continued to rail bitterly against the cruelty of settling an estate away from a family of five daughters, in favour of a man whom nobody cared anything about.

And that last sentence is rather clever and a little naughty - because Mrs. Bennet actually grasps the brutal consequence of the entail for her daughters.

Neither the mother nor the reader need an explanation from Jane and Elizabeth. Austen has already explained it.

Towards the end of the book we have this exchange

“I never can be thankful, Mr. Bennet, for anything about the entail. How anyone could have the conscience to entail away an estate from one’s own daughters, I cannot understand; and all for the sake of Mr. Collins too! Why should he have it more than anybody else?” “I leave it to yourself to determine,” said Mr. Bennet.

And with this Austen also leaves it to her readers to determine the nature of entails and their iniquities.

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Perhaps I will do another post on law the other novels, or perhaps a post on how Austen writes about lawyers - especially in Persuasion. (Maybe I will do this as a treat for paying subscribers.)

But what I wanted to convey here is just how brilliant Austen was as a writer about law. What, say, Dickens shovels on the page, Austen weaves so delicately that you hardly realise what she is doing.

Everyone knows Dickens was a great writer about law - he basically tells you this himself. But few realise that Austen is also a great writer about law - and in my view the better one. Only Kafka - himself a qualified lawyer - can in my view compare.

So a happy 250th birthday to Jane Austen (and happy 30th birthday for Clueless) and I hope this post encourages you to (re-)read her novels.

Clueless aside, they are all so much more satisfying than the film and television adaptations.

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