everybody should have one talent, what's yours?
forging signatures, telling lies...impersonating practically anybody.
In this week’s episode of Reformed Rakes, we are discussing Unmasked by the Marquess by Cat Sebastian. In this book, an AFAB character is living as a man to prevent an estate from being passed to a cousin. It’s a charming queer historical romance that I am really glad the other Rakes suggested we read!
But I am the lawyer of the bunch and my favorite parts of the book was the fraud that is happening with the property. I wanted to write a little about both one of the origins of estate anxiety in historical romance (that pesky entail in Pride and Prejudice) and some other books where people lie in order to retain property and why I think this kind of lying works so well as a conceit of romance.
I’ve argued before that drawing straight lines between Jane Austen and modern historical Regency romance skips some steps in a way that underserves genre discourse. But Pride and Prejudice is at least a load bearing wall in the architecture of Regency romance genre fiction. An enemies to lovers story, based on a miscommunication (misinterpretation?), with a not-like-the-other-women-in-the-story heroine and a hero who just can’t quite get his words right.
It also starts with an estate gone wrong. Or gone right, depending how you view the values of English land law.
Mr. and Mrs. Bennet have five daughters and no sons and thus, their estate of Longbourn will be diverted to distant cousin Mr. Collins and their daughters will be without resources if they do not marry before Mr. Bennet passes away.
Without any additional context, someone might assume that this is because women cannot inherit property. But I think most readers catch that it is more complicated than that because Austen tells us so. Longbourn is entailed. “Entailing” refers to a bundle of legal concepts that restrict inheritance. Readers are not given the language of the conveyance in the novel, but one likely meaning is that Mr. Bennet inherited Longbourn as a fee tail rather than fee simple. A fee simple is an unencumbered estate with which the owner can do whatever they wish. A fee tail restricts the future inheritance to heirs of the body of the first heir, often male descendants, thus the diverting of the estate to Mr. Collins.
Mrs. Bennet suggests that Mr. Bennet should have done something about the entail. Scholars disagree about the extent to which the legal conveyance could have allowed Mr. Bennet to exploit a loophole. (Is Mrs. Bennet being marked in another way as a fool? Or the fact that she comes from a family of lawyers and might actually know more about the entail used to show Mr. Bennet’s inertia?) Entails could be broken with a legal fiction called “common recovery,” though is more associated with earlier periods--medieval to early modern. It is possible that this litigation is outside of the Bennets’ budget, or that their entailing is restricted in a way that option is not available. (That’s the argument made here by Luanne Bethke Redmond).
And Mr. Bennet, for all his Donald-Sutherland-sweetness toward Elizabeth, is not great with money! He’s had five daughters for at least 15 years and put no money aside to help them if no son comes along. He mocks his wife’s hysterics over the money question. I’m a Mr. Bennet skeptic, but I’m also convinced that Austen makes it clear that the lack of entail on Longbourn would not necessarily solve the Bennet girls problems: it would just lead to more assets that Mr. Bennet could mismanage.
Modern readers might read the entail and think “oh this antiquated, conservative institution screwing over these women because of their gender!” That’s not not true, but also I don’t think Austen is necessarily condemning the institution of fee tails either within the text. And fee tails were actually once embraced by the progressive Whig party, rather than the conservative Tories. According to Sandra Macpherson in her article, “Rent to Own; or, What's Entailed in Pride and Prejudice,” “Whigs…wanted to see acquired land achieve the same durability as land with a centuries-long pedigree.”1
Macpherson argues that this absolute nature of the judicial conceit is not hypocritical of the Whigs, but rather in alignment with many Whiggish positions that aligned with an idea of liberal ascendency. But by the 18th century, the next generation of “would be squires” found themselves locked out of even more property options.
Adam Smith, Whig, decried entails in The Wealth of Nations, linking the device to Tory conservatism. But Macpherson points out that by the time The Wealth of Nations has been published, a legal concept had been developed and established to prevent exactly the land of the nation being controlled “by the fancy of those who died perhaps five hundred years ago.”
The referenced concept is the bane of every law student’s existence while they are in property class: the rule against perpetuities. In 1682, this rule was established as a part of English common law in the Duke of Norfolk’s Case.
The Duke of Norfolk’s Case did not strictly deal with an fee tail, but a type of future interest, a shifting executory limitation. The Duke attempted to write his will so the properties going to his sons shifted: the first son would inherit X, the second son Y, the fourth son Z, and then when the first son died, the second son would get X, fourth son Y, and so on and so forth. (The third son was a Catholic cardinal, thus being skipped). The will spelled out these shifting interests through the next generation, including yet-to-be-born grandchildren.
The first layer of inheritance went off without a hitch, but when the first son died, the second son (now Duke of Norfolk in his own right) had no interest in giving up his original inheritance to the fourth son. This is the matter of the suit. The House of Lords determined that a shifting executory interest like this could not be determined by a will indefinitely.
Though the rule against perpetuities would not be articulated with a specific period of time limiting the control of future interests until the 1720s, this ruling at common law made perpetual entails less and less available. Instead what would happen would be a perpetual re-entailing. When a new person would inherit an estate, they could re-entail (draft their own will with an entail) to insure that the next owner could not remove the estate from the bloodline. This is seen in the beginning of Lisa Kleypas’ Cold-Hearted Rake. Devon Ravenel inherits the estate and title from his cousin, Theo Ravenel and assumes that he has no ability to sell Eversby Priory. Theo might not have been able to sell the Priory, but he never re-entailed the estate after his inheritance, so Devon is an unencumbered heir and the estate is alienable (able to be sold). (The article by Luann Redmond referenced earlier also goes into why someone would want to continually re-entail an estate).
Mr. Bennet himself might not have been able to do anything legal in the moment, though even the novel itself points out that he did have the option to save and put money away from the profits of his estate on the off chance that he didn’t have a son, but the entail of the late 18th century is already becoming more malleable than Whiggish Adam Smith might want to characterize it or 21st century might think.
But there is one more thing Mr. Bennet could have done: lie.
Historical romance novels LOVE when people lie about wills, property, inheritances. Once you start looking for it, it’s everywhere.
My theory as to why this kind of fraud can so easily be charming and romantic is related to one of the appeals of a rake character, that goes beyond something Austen conceives of in Pride and Prejudice and captures something I try to point out in historical romance spaces. Austen is not writing Regency romance--she’s writing contemporary romance. Her position on entails is matter of fact and she links ethics in the novel with perpetual ownership--Bingley’s stepping up for Jane is connected to his decision to purchase a home rather than rent it. Darcy’s most ethical moments are when he takes cares Wickham financially, a duty attached to Darcy because of his ownership of Pemberley and Wickham’s connection to that estate.
But when characters attempt to defraud property lines and estates in modern historical romance genre fiction, they are upsetting institutions easily framed as conservative and backwards--whether it be primogeniture, entails, the aristocracy, private property in general, landholding, or even just sexist laws that don’t allow married women to own property.
To me, this is like the appeal of many rake characters. Sure, some rakes can be so immoral as to be villains even to a 21st century reader, but many rakes in these books are “social model rakes.” Is a man who loves giving pleasure to women and is uninterested in his landlording duties a rake or a progressive? Often the behavior of rakes, especially ones that are romantic leads, are condemned by the ton, but lauded by the heroine and the reader as swoon-worthy.
Taking land by deceit is romantic because it is throwing off the yoke of the norm, swinging big in the name of more modern property values, and oftentimes, self-preservation. Many of the characters who lie to protect property are doing so to protect people in their care, who would be in much worse positions if the character was just waiting for something to happen (like Mr. Bennet).
So here are some romantic frauds.
When a Scot Ties the Knot by Tessa Dare: My first favorite romance novel. Maddie Greenchurch is debilitatingly shy, so in order to avoid pressure to go on the marriage mart, she invents a Scottish fiance named Captain Logan MacKenzie and writes him letters. The letters serve as a diary for incredibly introverted Maddie and she posts them, without thinking much of it. Like all the heroines in this series by Dare, Maddie inherits a castle in Scotland from her godfather. The gift is inspired by her fictitious Scottish sweetheart.
Maddie “kills off” her fiancé by letting her family know he had died in combat. But after her inheritance, a real Scottish captain appears--her letters were directed to the army and delivered to a real Scottish soldier named Logan MacKenzie and now he wants his Scottish castle.
The book is set in post-Jacobite Scotland and after the collapse of the clan system (1810), but during the Highland Clearances. I wish the book didn’t take quite such an apolitical stance. Logan assumes that people around the castle will be afraid of Maddie. But he is made to look foolish when they love her, since she has been giving them gifts and being sweet to them ever since her occupation of the Castle began. This twist is supposed to demonstrate Maddie’s character--that she does care about the residents of her lands. But Logan’s trepidation about an English woman owning a castle is mainly characterized as issues with a woman owning a castle, so something he has to get over and is simply countered by Maddie having a kind personality and earnest interest in Scotland is pretty thorny.
Logan does seem to the rightful owner of the castle in Maddie’s mind by three-quarters of the way through the book—she gives him the castle in his own right, without them having to marry and her speech to him about it references the Highlands and its community as something important and worth protecting. Just in the time since I first read this book, I’ve read so many more books that come down harder on this question of England as geopolitical villain.
But I do love this book; the romance itself is still one of my favorites and I cry every time I read it. It just is apolitical class-analysis and imperialism wise in a way that I have to give a caveat!
A Lady Awakened by Cecilia Grant: The Reformed Rakes did a whole episode of the Blackshears series by Grant and we keep bringing her up in new episodes as well.
This fraud is more legally questionable than the one in When Scot Ties the Knot. The heroine Martha Russell is a new widow and if she is not pregnant with her late husband’s child, the estate is going to pass to a cousin, just like in Pride and Prejudice. But the cousin here is not a bumbling scold like Mr. Collins, but a sex pest with a history of assaulting the maids on the estate.
The precipitating event of the book is that Martha decides to become pregnant by having an affair and pass off the illegitimate child as her late husband’s. I talk more about this fraud concept and the moral panic of widows doing this in the 19th century in the episode!
The Scot Beds His Wife by Kerrigan Byrne: Another Scottish castle book. Is fraud easier to pull off in Scotland in the minds of romance novelists? Gavin St. James, Earl of Thorne, really wants to buy Erradale, the abandoned cattle estate next to his land. But it is owned by an absent heiress, Allison Ross, who has gone off to America. Plus, Allison Ross hates Gavin’s family, the Mackenzies.
In America, highway robber accomplice, Samantha Masters saves said heiress from being shot during a robbery by shooting her own husband. Allison has no interest in going back to Scotland, but does not want the estate to fall into Gavin’s hands. So Samantha goes to Scotland in her place, to avoid the authorities now looking for the robbers.
Gavin intends to charm Samantha out of the estate, but she is more resilient to his smiles than anyone he has ever met. But Samantha then develops her own reasons for prioritizing Gavin’s available protection over her promises to Allison to keep Gavin off the estate.
I don’t always love Byrne books, but I do like how violent they are--when there is the real threat of death in romance, the stakes just become that much higher. And this one worked pretty well for me! There are so many lies and frauds that need to be untangled for it to work and I’m not sure if she sticks the landing, but the read was incredibly fun.
The Ruin of Evangeline Jones by Julia Bennet: I can’t think of a way to explain the fraud here without spoiling the book, but it is probably the most ethical reason/way to commit property fraud! We also did a whole episode on this book. This is the most “fraud as grand gesture” book on the list. It also works because the heroine is a fraudulent medium as her profession in the book, so there are nice layers of ethical questions about what it means to lie to serve yourself or lie to serve someone else or lie for the greater good.
His Wicked Reputation by Madeline Hunter: Not real property fraud, but personal property fraud. The heroine is an art forger! She gets entangled in a scheme where the art she had been using to make forgeries goes missing and the hero is investigating. This is another one where her reasons for her criminal acts are incredibly sympathetic and the ethical question has to be parsed by the couple together anew as they develop sympathies for each other.
A Lady’s Code for Misconduct by Meredith Duran: Amnesia seems like the prime parallel plot to property fraud. It is much easier to commit fraud with a legal document when someone does not remember signing something! In this book, Jane Mason pretends to be married to Crispin Burke after he awakes with amnesia and a totally new personality. Once a dark-souled, cutthroat politician, this Burke is an idealist and a reformer. The marriage plot was originally Crispin’s idea: they would forge a marriage certificate so that Jane could get out from underneath her cruel uncle’s thumb, and he comes up with the idea really to blackmail Jane into spying for him.
But when Crispin is attacked, she fills in his name on the marriage certificate, thinking he is about to die. Only he doesn’t die, and she is greeted with a sweet husband who assumes they must be deeply in love, though she has only known him as a corrupt politician.
This is more marriage fraud than property fraud, but historical romance, marriage and property are inextricably linked together.
Please let me know I am missing your favorite property fraud book! I love nothing more than reading a book with a funny inheritance and looking up case law or checking Blackstone’s for the real life correspondence to the romance plot.
Sandra Macpherson, “Rent to Own; or, What’s Entailed in Pride and Prejudice.” 82 Representations 1, 7 (2003)
in the contemporary romance world, property always ends up going to two people, unrelated, who just HAVE to share the house/apartment/farm. there's just no way around it.
I loved this analysis. I know I've read more books with this plot, but was only able to remember a few. The late Jo Beverly wrote a lot of books with tricky legal shenanigans. "Secrets of the Night" has some plot similarities to "A Lady Awakened". The heroine's elderly husband is not able to father a child, so to thwart the horrible heir, she engineers what we would now call a 1-night stand. She meets the hero/sperm donor at a masquerade, he doesn't know her true identity, or that she's trying to use him to get pregnant.
Another Beverly book, "The Devil's Heiress" has a heroine who has fraudulently inherited a fortune, due to a forged will. It's part of her long-running Company of Rogues series. The forgery/inheritance plot is set in motion in Book 2, "An Unwilling Bride", but a lot of people find the content problematic, in that one and Book 1, "An Arranged Marriage". I won't get into the details, but you'll see quickly enough in the reviews what people hate about those two.
"A Feather To Fly With" by Joyce Harmon has monetary fraud(involving horse racing), not real property fraud, but I wholeheartedly recommend it. It's very delightful and funny, basically a found family of con artists.
"In the Arms of the Heiress" by Maggie Robinson and "The Vagabond Duchess" by Claire Thornton are not property fraud per se, but they are good books with fake marriage plots. In the Thornton book, a forged marriage license is produced after the fact.