Emily Bronte and the Law: Puzzles in Wuthering Heights

In Wuthering Heights, Emily Brontė shows a remarkable knowledge of inheritance law in the early nineteenth century. We should not find this surprising since, through Lockwood's condescension at the start of the book, we are reminded that anyone whether it be a servant or a gentleman, can read a book:

I have read more than you would fancy, Mr. Lockwood. You could not open a book in this library that I have not looked into, and got something out of also.

What is surprising is the way in which Emily Brontė's exposition of 19th Century Civil Law is a sharp critique of the society of the day.

There are several occasions on which Emily Brontė shows her familiarity with the law of inheritance. These are,

1. Mr. Earnshaw's death and the way in which Wuthering Heights devolves on Hindley.
2. Hindley's mortgaging of Wuthering Heights to Heathcliff and his gaining possession of the Heights on Hindley's death, thus supplanting Hindleys descendent, Hareton.
3. The estate in tail left to Edgar Linton on his parents death and the way in which the entail takes effect.
4. The marriage of Heathcliff to Isabella Linton, and that of Linton Heathcliff to Cathy Linton.
5. Heathcliff's gaining possession of Thrushcross Grange.

There are also some questions she leaves unanswered. The obvious one is whether or not Heathcliffs possession of Wuthering Heights and Thrushcross Grange is legal. The second is less obvious, and possibly more tragic. At the end of the book, it appears that Cathy and Hareton, as a married couple, shall be in possession of Wuthering Heights and Thrushcross Grange. Without reflecting, one would say that this is normal and legal. However, it was Heathcliff who was in possession of those lands and on his death, he left no will and no living progeny. His estate would thus be escheatable. As C.P. Sanger puts it, these young people, ill-educated and incompetent, were to be left destitute.¹

Complications also arise from the fact that the laws concerning realty (real property) and personalty (personal property) were profoundly different. In addition, if one had a legal grievance including one concerning inheritance there could be more than one of seeking redress, since one would depending on the circumstances resort either to common law or to equity.

The first question is the easiest to resolve. It is probable that Mr. Earnshaw was a freeholder Wuthering Heights had been in the familys possession since around 1500. We know from the text that they were not gentry. There would be no question of their lands being the subject of a settlement. Mr. Earnshaw would thus own his land in fee simple. He was therefore as close to being an unconditional owner as one came. It is very likely that he died intestate. In which case, common law dictated how both his personalty and realty should be disposed of.

Common law required that realty be disposed of according to the following seven rules:

1. Inheritances were passed down from parents to children, from children to childrens children and so on. They were never passed, however, from children to parents.
2. Male offspring took precedence over female offspring.
3. Only the eldest male child inherited (primogeniture). In the case of female heirs, they inherited equally.
4. The lineal descendents (children, childrens children etc.) represented the ancestor.
5. If there were no lineal descendents, the inheritance descended to the next nearest relative of the ancestor, subject to the rules above. (Collateral inheritance)
6. In collateral inheritance, no relative of half-blood was admitted.
7. In collateral inheritances, males took precedence over females, unless the lands had in fact descended from a female.²

If any of the rules were found to conflict, rule (4) prevailed.

Thus, according to rule (1), one of Mr. Earnshaws children should get Wuthering Heights. Hindley being the eldest and male becomes its possessor, by rules (2) and (3). This is fairly straightforward. So is the question of personalty. In common law, in the case of someone dying intestate, his personalty was divided equally among his next-of-kin. An ecclesiastical court had jurisdiction over distribution of personalty (and probate), and it had a process of effecting this distribution.

The next question casts a dubious light on Heathcliffs actions. He encourages Hindleys fatal passion for gaming, and as a result, Hindley mortgages all his property. We find out that Heathcliff is the mortgagee, and this we find is incontrovertible:

The guest was now the master of Wuthering Heights; he held firm possession, and proved it to the attorney who, in his turn, proved it to Mr. Linton that Earnshaw had mortgaged every yard of land he owned for cash to supply his mania for gambling.

In the 19th Century and before, the mortgage was an agreement between debtor and creditor whereby the debtor conveyed the land to the creditor (called the demise), with a proviso that if the debt was paid by a fixed date the land should be reconveyed by making the demise void (called redemption). ³ Initially, the mortgagee enjoyed possession of the land until redemption, but later that changed so that the mortgagor had a kind of restricted possession of the land, although the demise still took place. ⁴ This would have been the case in Wuthering Heights. Further, the redemption could be effected in the one of the following ways:

1. By repaying the principal, interest and any costs that might arise, by a fixed date.
2. By paying a fixed rent to the mortgagee to repay the principal, interest and costs.
3. Simply by paying the principal, interest and costs by instalment, with the proviso that the mortgagor should have possession till he made default.⁵

The mortgagor also had some rights through equity. Redemption was the mortgagors right. In addition, the mortgagor could redeem the land before the end of the agreed period, on payment of the principal, interest and costs. Failing the repayment of the debt by the agreed time, the mortgagee could apply for foreclosure whereby the mortgagee would make effectual his ownership of the mortgaged land. On bringing an action for foreclosure, a further day is appointed for payment and if the money is not then paid, the property is then adjudged to belong to the mortgagee absolutely.⁶

In considering the mortgage on Wuthering Heights, we must consider the two methods of repayment.

1. The principal, interest and costs should have been repaid by a certain date. We may assume that during Hindleys lifetime, Heathcliff could not claim foreclosure. We know that Hindley mortgaged his property to Heathcliff between September 1783 and September or October 1784. It is reasonable to assume that the mortgage was not yet up (i.e. the time before which redemption was possible was not yet passed) by October 1783, for otherwise Heathcliff would have welcomed a procedure of foreclosure against his inveterate enemy. The mortgage would therefore have been up when Hareton was the heir expectant of Wuthering Heights. Now Hareton was an infant (he was 6 in June 1784) at the time, and could not, by Common Law, possess realty. Haretons parents being dead, it would have been necessary to appoint for him a guardian who would administer his property and liabilities until he came of age. The guardian would be responsible for Haretons property and would use it in such a way as to benefit Hareton. Crucially, he or she would repay any debts that Hindley had inherited.⁷
2. The principal, interest and costs should have been repaid from the income of Wuthering Heights. As before, the guardian would be responsible for the management of the Heights and for the repayment of the debts.

Suppose now that Hareton had had a beneficent guardian. Realising how encumbered his estate was, the guardian could have done the following:

If the repayment of the mortgage had been as outlined in (1), he could have taken the following steps:

1. Seek, by informal negotiation with Heathcfliff, an extension of the period of the mortgage in order to save money from the farms profits and thus redeem the land. Given Heathcliffs pathological personality, success would have been unlikely.
2. Seek the same extension through equity, and redeem the property within a reasonable time. This was possible and could be successful.
3. Wait for foreclosure and demand, again through equity, that the lands be sold by an administrator appointed by the court, thus leaving the ward with any surplus after the principal, interest and costs had been paid.

If the repayment of the mortgage had been as outlined in (2), he simply had to manage the farm well and to pay the debt.

The outcome would probably have left Hareton with Wuthering Heights. In any case, it would not leave him in the servile condition in which he does find himself:

Hareton was reduced to a state of complete dependence on his fathers inveterate enemy; and lives in his own house as a servant, deprived of the advantage of wages.

Unfortunately, Haretons guardian is far from beneficent: he is Heathcliff. Heathcliff takes none of the action suggested above. Instead he does one of the following (whether the repayment be of type (1) or (2)):

1. As guardian, he defaults on the wards debts, and as mortgagee, he demands foreclosure.
2. As guardian, he keeps Hareton in a state of primitive ignorance, and as mortgagee he does nothing. In this way, he hopes to claim adverse possession.8

Heathcliffs manoeuvre exposes a gross conflict of interest. How could someone with such a vested interest in Haretons property be appointed his guardian? Guardianship by a family member would have been preferable to that of a stranger. Hareton was Edgar Lintons nephew through his marriage with Catherine Earnshaw. Edgar, as Nelly Dean suggests, should become Haretons guardian. However, we know that Edgars hands are tied:

Well, said the scoundrel, well not argue the subject [the guardianship] now: but I have a fancy to try my hand at rearing a young one; so intimate to [Edgar] that I must supply the place of this one with my own, if he attempt to remove it. I dont engage to let Hareton go, undisputed; but Ill be pretty sure to make the other come.

But would Edgar not have been obligated by law to assume the guardianship? Why was not a guardian ad litem9 appointed? The answer lies in the ambiguous state of guardianship laws until the Guardianship of Infant Act 1886. According to W.S. Holdsworth, common law had got no general rules as to the persons to be appointed the guardians of an infant, or as to the rights, powers or responsibilities involved in guardianship. ¹⁰ Hareton's situation would have been made worse by the fact he was an orphan. In addition, Hareton would have found little succour in an Ecclesiastical court, for while the ecclesiastical courts did something to protect the interests of children by obliging executors and administrators to retain for their use any legacies or bairns rights to which they had become entitled¹¹, their jurisdiction was strictly confined to personalty. Haretons personalty would have been used to repay Heathcliff in part.

We must conclude therefore that Heathcliff's possession of Wuthering Heights is legal.

We come now to the third issue: the entail. To a modern observer, and even to one in 1909,12 the entail was a pernicious thing. We have seen that common law determined the heirs in a definite way. Someone owning realty in fee simple might dislike these rules, and determine by will to grant his property to a specified grantee and to the class of the grantees heirs especially mentioned in the gift, e.g., to A and the heirs of his body. The tenant in tail could not dispose of the land. The origin of the entail is the statute De Donis Conditionalibus of 1285. The crucial thing about this statute is that it restricts the rights of a tenant in tail to do as he pleases with his estate. An unfortunate Mr. Bennet in Pride and Prejudice, with five daughters and no sons would be unable, without an act of parliament, put a gold mine on his land to commercial use, in the hope of making his daughters marriageable. Nor could he demolish and rebuild Longbourne, even if its supporting walls had collapsed and its roof had rotted.

More famously, Mr. Bennet's daughters cannot inherit Longbourne because of the particular kind of entailment on the estate. This kind of entailment was very common, and it is the one old Mr. Linton puts on his estate. The land devolves on the eldest male offspring (the grantee), and on his eldest male offspring, in infinitum. The grantee has possession of the gift for life. Failing the grantees producing male progeny, the land reverts to the grantor, and so the gift will devolve on the next eldest son, and so on. If a daughter inherits, she retains a life interest in the estate, and the estate passes to her eldest son. The life interest and primogeniture are crucial to this entail: the former ensures that those passed over in the process are not left destitute; the latter is its defining characteristic. We may apply these rules to Wuthering Heights: On the death of old Mr. Linton, Thrushcross Grange devolves on Edgar, for the duration of his life, and then on the heirs male of his body. Isabella would have a life interest in the realty (although this is not stated in the text). Since he has no male heir, on his death, the land reverts to old Mr. Linton, and so Isabella inherits, on the condition that, on production of male progeny, it devolve on the eldest. Thus, Linton Heathcliff gains possession of Thrushcross Grange. This too is perfectly legal. Heathcliffs claim, later on, that he has a right to Thrushcross Grange, by virtue of his son and his wife, is more questionable.

Edgar was apprehensive that Heathcliff might one day make such a claim, yet he did nothing in order to suppress the entail. The process of barring an entail by an action of Common Recovery was made difficult by the restrictions in De Donis Conditionalibus. However, Edgar could have barred the entail by means of a collusive action. This is a complicated legal manoeuvre involving a collusive plaintiff and a man of straw which would result finally in the lands being given to the tenant in tail in fee simple. I cannot explain why Edgar never attempted it. Certainly, it was not a case of Emily Brontės not knowing of the recovery:

He [Linton] bequeathed his movable property to his father. The lands, being a minor, he could not meddle with [Italics mine].

Edgar, I suppose, being resigned and unhappy after his wifes death, would have found this legal meddling too onerous. Indeed, the meddling merited Hamlets notice:

This fellow might be ins time a great buyer of land, with his statutes his fines, his double vouchers, his recoveries: is this the fine of his fines, and the recovery of his recoveries, to have his fine pate full of fine dirt? Will his vouchers vouch him no more of his purchasers, and double ones too, than the length and breadth of a pair of indentures? ¹³

This form entail was a particular favourite of wealthy landowners. Its aim was to keep the property intact for as long as possible in the grantors line of descendants, and the practice can be summed up as the requirement that one male at a time have the exclusive possession of the property during his life, and that the eldest son of the grantor and the male heirs of his body be preferred to the younger sons and their male issue. Its importance to the plot of Wuthering Heights mirrors the importance of property (realty) to the gentry and the aristocracy in 19th century society.

The marriages of Heathcliff to Isabella Linton, and of Linton Heathcliff and Cathy Linton indicate another aspect of property law that is odious to the modern mind: the position of the married woman. The aim of making man and wife one person in law resulted in the mans obtaining possession of the wifes realty and personalty, at the time of marriage. Any property obtained by the woman after the marriage through her own exertions was her husband's in law. There were exceptions. Equity allowed property to be given to trustees for the sole and separate use of a wife. When, during marriage, a property devolved on the wife whose possession the husband could obtain only by a Court of Equity, it was required that the husband settle a reasonable part of the property on the wife. However, it was not before the Married Women's Property Acts of the 1870s that women had the same legal status as men.¹⁴ We can safely way that Isabella Heathcliff, in 1784, is, legally, subordinate to her husband. Her life interest in Thrushcross Grange is his. In the same way, we see that Cathy Linton's property becomes Linton Heathcliff's:

Papa says everything she has is mine. All her nice books are mine; she offered to give me them, and her pretty birds, and her pony Minny but I told her she had nothing to give, they were all mine And then she took a little picture from her neck, and I said I should have that: two pictures in a gold case on one side her mother, and on the other, uncle I said they were mine, too, and tried to get them from her.

The law says that this contemptible creature, Linton, is right. This scene is a definite criticism of England before the Married Women's Property Acts.

Heathcliff, of course, succeeds in a more contemptible greed. On Linton's death, he claims Thrushcross Grange. By what right, we ask. According to Nelly Dean, he claimed and kept the lands of Thrushcross Grange in his wifes right and in his son's also. Both these claims turn out to be wrong. Heathcliff claimed the lands in his wifes name by courtsy. Sometimes, the husband, after the death of his wife, may be entitled to an estate by the curtsy. If no child has been born of the marriage, the wifes real estate in tail descends to her heirs. The husband has no claim to it. If a child has been born of the marriage who was capable of inheriting the wifes lands, the husband is entitled to an estate for life. The rule governing courtsy extends to the husbands right to the entire estate in the case where the child has died. There are four requisites before the right can be admitted:

1. That marriage have taken place.
2. That the wife be seised with the property in question.
3. That the couple have issue.
4. That the wife die.15

Now on the death of the Linton parents, the estate devolves on Edgar. Edgar is seised with Thrushcross Grange for the duration of his life. Since Edgar dies after Isabella, she is never seised therewith. So, by (2), Heathcliff is not entitled to Thrushcross Grange by courtsy.

As for his second reason, if we recall the first rule in Common Law concerning inheritance, namely that inheritances can never pass from children to parents (it was deemed unnatural), we see that Heathcliff is not entitled to Thrushcross Grange for this reason either. In conclusion, therefore, Heathcliff's claim on Thrushcross Grange is false: it should devolve on Cathy as the sole living descendent of the old Lintons. However, Cathy could not claim Thrushcross Grange because she was at the time friendless, penniless and a woman in a male-dominated society. This is another point that Emily Brontė makes about the law:

I suppose, legally at any rate, Catherine, destitute of cash and friends, cannot disturb his [Heathcliffs] possession.

What happens then after Heathcliff's death? We seem to know: Hareton and Cathy marry on the 1st January 1803. They unite the two estates a symbol for the end of the deadly antithetical feud between Wuthering Heights and the Grange. They undo the damage inflicted by Heathcliff on the third generation of Lintons and Earnshaws: Hareton by learning to read, Catherine by unlearning her prejudices. On reflection, however, we realize that Heathcliff died intestate and without living progeny. His possessions are therefore escheatable: to be given over to the Crown. In order to ensure some kind of happy ending from the story, it is necessary to refute this. Certainly Heathcliffs possession of the Grange was wrong. It would suffice for Catherine to prove this, and to claim the Grange. Since there was just a period of around one year between Heathcliffs taking possession of the Grange and his death, there would be no question of his claiming adverse possession. Catherine would reclaim the Grange perhaps with the help of Mr. Green, the attorney, who is now no longer in Heathcliff's pay.

Wuthering Heights is a different question. If Heathcliff had taken steps (1) foreclosure because of default in order to seise himself with Wuthering Heights, the Heights would have come into his possession immediately after foreclosure. The Heights would have been his without question, and thus, dying intestate and without issue, the Heights would devolve to the crown. On the other hand, if he had taken steps (2) waiting to claim adverse possession Hareton could, on Heathcliffs death, initiate an action of ejectment. Ejectment is the process by which a rightful owner asserts his claim to an estate over the owner currently in possession. The income of the Heights over 18 years might have sufficed to clear the mortgage. Ejectment was subject to a limitation of 20 years. If claiming adverse possession was Heathcliffs plan, this course of action would have been open to Hareton, since Heathcliffs uninterrupted possession had lasted 18 years only insufficient time for the limitation to come into effect. This is what C.P. Sanger thinks happened.¹⁶

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1. The Structure of Wuthering Heights, Charles Percy Sanger (Hogarth Press, 1926). Republished in Twentieth Century Interpretations of Wuthering Heights, edited by Thomas A. Vogler (Prentice-Hall, Inc., Englewood Cliffs, New Jersey, 1968), p. 22.
2. A History of English Law, W.S. Holdsworth (Oxford University Press), volume 3, pp. 171, 172.
   1. Inheritances lineally descended to the issue of the person last seised in infinitum, but never lineally ascended.
   2. Male issue were admitted before female.
   3. When there were two or more males in equal degree the eldest only inherited, but the females inherited together.
   4. The lineal descendents in infinitum of any person deceased represented their ancestor.
   5. On failure of lineal descendents of the person last seised the inheritance descended to his collateral relatives being of the blood of the first purchaser, subject to rules (2), (3), and (4).
   6. The collateral heir of the person last seised must have been his next collateral kinsman of the whole blood.
   7. In collateral inheritances the male stocks were preferred to the female, unless the lands had in fact descended from a female.
3. Ibid., vol. 3, pp 129, 130.
4. Encyclopaedia Britannica, 2001, on Mortgage.
5. A History of English Law, vol. 7, p 375.
6. The Oxford Companion to Law (Clarendon Press, 1980). On foreclosure.
7. All chronology from The Structure of Wuthering Heights, pp. 25 27.
8. The condition whereby an occupier of a property to claim a right to ownership of the property, in the absence of any other claimant. By the Statute of Limitations passed by Henry VIII in 1540 (History of English Law, vol. 4, p. 485), the occupier must enjoy uninterrupted possession of the property for 20 years, after which time no other claimant can make his claim.
9. Guardian ad litem: An appointment of a guardian ad litem where the interests of the child or young person may conflict with those of the parent or guardian must be made by order must be made by order, and the person to be appointed is to be selected from the panel established by regulation. Words and Phrases Legally Defined, Editor John B. Saunders (Butterworths, London, 1990), on Guardian ad litem.
10. A History of English Law, vol. 3, p. 511.
11. Ibid., p. 512.
12. Select Essays in Anglo-American Legal History (Cambridge University Press, 1909). See vol. 3: Changes in the English Law of Real Property, Arthur Underhill.
13. Hamlet, Act V, scene I.
14. Select Essays in Anglo-American Legal History. Vol. 3: Marriage and Divorce under Roman and English Law, James Bryce.
15. A History of English Law, vol. 3, pp. 189, 190.
16. The Structure of Wuthering Heights, p. 24.