Chapter 1

DISCRIMINATION AND DIVERSITIES THE DEVELOPMENT OF BREACH OF PROMISE 1780–1815

Causes of this description were frequently opened with many observations calculated to inflame jurors’ minds and that such cases called on them to give very large and exemplary damages.

(The Times, 13 December 1800)

Broken promises of marriage may be as old as the human race. Boy meets girl, suggests a life-long union and then has second thoughts. In England, where regulating disputes between engaged couples was solely the prerogative of the Church Courts until the seventeenth century, fragmentary records from Chester Consistory Court show that in 1609, Lucy Lloyd complained that John Whitbie had failed to marry her at Michaelmas. In 1621, Margaret Hollinshead reported that Thomas Orwell of Wilmslow had breached their matrimonial contract and offered her £10 not to bring a charge against him. In 1662, James Urmston set out his reasons for not marrying Hester Griffin and at Salisbury during 1667, John Aubrey began a three-year dispute with Joan Sumner who had jilted him. Between 1703 and 1754, the Consistory Court for London received a few complaints about broken engagements, and many more about adulterous spouses. Unfortunately, the outcomes of these early disputes remain a tantalising mystery.

Marriage was regarded as a religious state rather than a civil contract and representatives of the Church of England were empowered to decide what action to take when an affianced man or woman refused to go through with their marriage ceremony. Whether the jilted person had a remedy depended on how the engagement had been formed. If the engagement was a betrothal it was agreed in the present tense, with words such as ‘you are my spouse’. This created a binding contract and the couple could be ordered by the Church Court to take their marriage vows. A betrothal was often seen as a safeguard when the marriage was designed to increase family wealth, power or prestige. It would have been equally attractive to impetuous young lovers fearing parental opposition to their union because, as soon as the words had been spoken, neither party was free to marry anyone else. If an engagement was declared in the future tense, using words such as ‘you will be my spouse’, the contract was not seen as binding and the Church Courts could not compel the couple to wed, unless they had cohabited.

The power of clergymen to deal with broken engagements ended abruptly on 24 March 1754. The next day, ‘An Act for the better preventing of clandestine Marriages’, more commonly known as Lord Hardwicke’s Marriage Act, came into effect. The new regulations were designed to eradicate the problems caused by irregular marriages which, by 1750, were considered a threat to law-abiding society. Although the Church of England already had sensible procedures and formalities about giving public notice of an intended marriage and ensuring that both parties were competent to marry, these could be ignored with impunity. If the ceremony was conducted by a Church of England priest then the marriage was considered to be legal whether it took place in a church, a public house or a prison; whether banns had been called or not and irrespective of the ages of the couple.

Hardwicke’s Act decreed that a marriage would only be valid if it was performed in a church, after the calling of banns and with the consent of a parent or guardian for anyone under 21, other than a widow or widower. To forestall any attempts to circumvent the new law, the Act absolutely abolished the right of the Church Courts to enforce engagements made in the present or future tense, ‘any law or usage to the contrary notwithstanding’. The only redress a jilted person had against a recalcitrant fiancé was to bring a claim against them in the civil court.

Financial claims arising from broken engagements, though rare, had been dealt with by the civil courts from the seventeenth century as breaches of contract. Unlike the Church, where persuasion, or the threat of excommunication, could be used to coerce a hesitant party to the altar, civil courts had no power, or wish, to compel an unwilling person to marry. The only claim a complainant (known in legal terms as a plaintiff) could make was for damages.

The main sources of detailed information about breach of promise claims in the civil courts are newspaper reports. Although it is unlikely that all cases were noticed by the press,from1787, enough reports have survived in newspaper archives to allow tentative conclusions to be drawn. Sadly, some cases were recorded with tantalising brevity. The only surviving information about one high profile claim in 1788 is that ‘a lady’ sued ‘a gentleman’ for £10,000 and was awarded £600. Other cases, perhaps more interesting because they included an unusual feature or scandalous detail, were reported in slightly greater depth. In July 1793, a 60-yearold man arrived at a Bedford church with a different bride, whilst the woman who had expected to marry him that day watched in disbelief. She was awarded £50. A month later, 40-year-old Miss Ellis, who forgot to mention her brood of illegitimate children to a 22-year-old farmer’s son, lost her claim for damages at Chester Assizes, the jury believing that she had tricked the naïve young man into making a secret proposal.

Following Hardwicke’s Act, a specific claim for breach of promise of marriage gradually developed in the civil courts and became the accepted way to resolve any problem associated with a failed engagement. In trying to broker fair and reasonable solutions for individual plaintiffs and defendants, jury decisions appear to have drifted from strict principles of contract law and began to include an element of moral judgement about the conduct of the two parties in the claim. In 1803, whilst presiding over the case of Leeds v Cook, Lord Ellenborough told the jury that ‘this species of action has more shades of discrimination and greater diversities than perhaps any other action whatever’.

By 1803, damages in breach of promise claims were no longer calculated in the same way as in other breaches of contract. They drifted towards another branch of law, known as tort, which dealt with claims when a plaintiff had suffered some harm, not necessarily physical. Tort law was more generous than contract law and allowed a plaintiff to obtain compensation for the injury inflicted by the defendant, over and above any other losses sustained. As well as the financial value of the lost marriage, most plaintiffs received an additional amount for hurt feelings. Precisely how and when this occurred is not known but it is perhaps not surprising that it did. At the end of the eighteenth century, two common claims in tort law arose from sexual relationships between men and women. Men could be sued for damages for seduction if they made a girl pregnant and then refused to marry her. Damages included a sum for the loss of her reputation, in addition to any financial costs her parent might incur because of the pregnancy. A man whose wife had committed adultery could sue her lover for criminal conversation, often demanding, and sometimes receiving, exemplary damages. In both of these situations, the defendant had behaved dishonourably and deserved to be punished through his pocket.

It would not have been a great leap of reasoning for respectable members of a society that placed high value on honourable behaviour, to treat a broken promise of marriage as conduct that sometimes warranted exemplary damages, whether or not there had been a sexual relationship between the couple. This served a dual purpose: to make a proper recompense to the injured party and to convey the disapproval of polite society towards ungentlemanly conduct. It would have seemed especially desirable when a young woman was upset about her broken engagement but could not easily identify what she had lost in financial terms.

By the time Lord Ellenborough spoke of the complexity of the claim for breach of promise, a number of different strands had come to feature in these cases, in addition to recovering out-of-pocket expenses. These various aspects are illustrated clearly by three cases heard between 1787 and 1803. In February 1787, a young army lieutenant, Charles Bourne, sued a rich, elderly widow, Maria de Comerford. Lawyers for both parties stressed that it was not uncommon for females to bring an action for breach of promise, but ‘rather singular’ for a man to do so. Not mentioned by either barrister, or the judge, was the size of Bourne’s claim: £20,000. This appears to have included £10,000 which Maria had promised to settle on him and £2,000 towards his debts. Lack of comment by barristers or the press about the size of the claim, or its individual elements, indicates that such sums were not out of the ordinary.

When the judge, Lord Loughborough, summed up the case for the jury he emphasised that a definite offer and acceptance, which are intrinsic elements of forming a valid contract, applied to claims for breach of promise. He also stressed that in a contract as serious as matrimony, a promise of marriage should not be inferred from levity of expression or levity of conduct. It was not necessary to accept in writing or to use particular words but acceptance of the offer must be explicit.

It seems probable that either Bourne’s offer or Maria’s acceptance did not meet the standard then required to bring a contract into existence as Loughborough appears to have been steering the jury towards a verdict for Maria, on the grounds that there was no contract to be broken. Despite the hints, the jury decided that a contract had been made and that the lieutenant had been jilted. They awarded him a shilling in damages, a very low sum but one that forced Maria, as the loser, to pay Bourne’s legal costs as well as her own. Press comment suggests that the jury had wanted to avoid the young officer being declared responsible for settling the legal bills of a wealthy woman who had behaved foolishly.

Although decisions made by juries did not form binding precedents, effective lawyers influenced the judgement of jurors by revealing similar claims where the jury had decided a debatable point in a particular way, yet without disclosing the full circumstances. Barristers such as Thomas Erskine and William Garrow, who were active in the courts of the time, gained reputations for arguing forcefully and ingeniously on behalf of their clients, playing on the emotions of the jurors as they did so. Humane juries appear to have assisted breach of promise claims to escape the strict requirements of contract law because they occasionally ignored the facts in order to achieve what they considered was a reasonable outcome for both parties.

By 1800, breach of promise claims involving middle-class and respectable working-class women usually emphasised the grievous nature of the emotional injury to the young woman and her blighted prospects in life. It was considered very unlikely that a woman who had been courted and then abandoned would receive another offer of marriage; unless her honour and reputation were vindicated in public. These sentiments, which feature in several claims as the eighteenth century drew to a close, were given full expression in the case of Andrews v Morrison in 1801, when a tradesman’s daughter sued a London tradesman. Her barrister, Thomas Erskine, the son of an Earl and himself a Member of Parliament, waxed lyrical on the theme of hurt feelings in a speech which must have taken ten minutes to deliver. The following extract from newspaper coverage gives a flavour of his oration:

If there was any case that more deserved attention than another, it was that which involved the consideration of an injury done to a woman. It did not require many words to convey an idea of the irreparable injury sustained by a female who was disappointed in her marriage with a man whose assiduities had gained her affections. Let her be as beautiful as Diana and as accomplished as possible she could never appear as she was before she became the object of such an insult. She had not the same chance of securing another marriage. Men were actuated by a sense of pride, which made them averse to marrying a woman another might have had if he had thought fit. There was no smoke without fire, and if the reason was not given in public a man would wonder why another man had rejected her and whether there was any blame on her part.

Erskine’s emotional pleading netted £200 to avenge Miss Andrews’ broken reputation and soothe her wounded spirit. This was an average award of damages at that time and would have reflected what a tradesman could afford to pay. The honours of Elizabeth Jones and Miss Southerton, probably middle-class women with wealthy suitors, had also recently been avenged with awards of a thousand pounds or more.

Upper-class lawyers regularly argued,with apparent sincerity, that a refined woman whose spirit had been wounded by a false lover deserved exemplary recompense for her broken heart. Meanwhile working-class women in the burgeoning industrial towns were sustaining irreparable damage to their health from twelve-hour shifts in unregulated factories and coal-mines without anyone suggesting recompense for the serious physical injuries that could blight their lives. As Erskine explained, ‘a man or woman might bear much, but a wounded spirit, who could bear?’

Refined women did not have a monopoly on breach of promise claims, but those brought by women who earned their own living by manual work were treated differently. A case heard at the Summer Assizes in York in 1802 was not the first to award damages to a woman whose background could not be claimed as genteel, yet it may be the earliest such case for which a detailed record remains. The courtship could easily feature in the plot of an eighteenth century play.

The plaintiff, Maria Storey, dubbed by her suitor as the ‘nymph of the soapsuds’, was a laundry maid in the service of Mr Stockdale of Knaresborough in North Yorkshire. Robert Eagle had flirted with her at the out-door wash-tub for a couple of years, making Maria jocular offers of marriage in the hearing of another washerwoman, Mrs Ellen Sly. Maria had consistently rejected them until she heard that Eagle had leased a pub and was now a man with prospects. By this time Eagle had impulsively proposed to a ‘d----d woman’ in nearby Harrogate. It is unclear whether he proposed again to Maria after this, but when she unexpectedly agreed to marry him Eagle decided to try to extricate himself from the engagement to the ‘d----d woman’. She immediately threatened to sue for breach of promise, pointing out that she had two witnesses to his proposal. Eagle reluctantly married her and was told by Ellen Sly that he ought to give Maria £30 in compensation. The case ended up in court and the jury awarded Maria £50, a twelfth of Eagle’s capital.

In arguing Maria’s case, the lawyers placed scant emphasis on any emotional harm she had suffered and considered that as she still had her employment there was little to compensate her for. The sum awarded to Maria was low in comparison with awards to women who did not earn their own living and appears to have exceeded £30 only because Eagle himself felt this was insufficient. Breach of promise claims may have been available to women of all social classes but there are indications of class distinction and value judgement in the way they were conducted and decided.

Maria’s case demonstrates that the claim for breach of promise, and the likely damages, were well-known amongst the working classes. After Hardwicke’s Act deprived the Church Courts of their power to enforce marriage when a couple had cohabited, poor women who were seduced and then abandoned with an illegitimate child turned to breach of promise with varying degrees of success. Sarah Heydon, although pregnant, lost her claim in 1789 because she had refused Mr Hutching’s proposal and he chose not to renew it.

Seduction and illegitimacy as elements of a breach of promise claim do not feature in the extant newspaper reports of eighteenth century breach of promise cases involving more genteel women. If pregnancy was involved then middle-class parents brought a claim for seduction instead. The person entitled in law to a seduced woman’s services, usually one of her parents, could claim compensation from the seducer if her pregnancy involved them in expense or left them to maintain a daughter who was unlikely to find a husband. In April 1802, Theodosia Barritt won £1,000 for the seduction and pregnancy of her 18-year-old daughter, Maria. This was an exceptionally large award and appears to have been made because Maria’s wealthy fiancé, Mr Hollamby, abandoned her after an assault that would now be described as date-rape. As Maria’s engagement was public knowledge she would have won substantial damages for breach of promise had she brought a claim, which suggests that the middle-classes at that point did not use breach of promise in cases of seduction. The position may have changed early in 1803.

In March 1803, The Observer published an anonymous epigram, ‘A Breach of Promise the strongest proof of – Breeding’, hinting at the link between pregnancy and breach of promise.

Clarinda promises to visit soon Indeed, she’s only waiting for a moon. Four following moons have since their progress run. And now Clarinda’s waiting for – a son.

The earliest successful breach of promise case involving an illegitimate child born to a genteel woman to be noted by the press may have been heard in March 1805. Elizabeth Forster, the daughter of a respectable Warwickshire farmer, claimed damages from Mr Hoblin, a neighbouring farmer. They had been engaged for two years, but when she became pregnant he refused to marry her. She was awarded £400 damages, one fifth of his capital. There is no indication that her father exercised his right to sue for seduction.

The extension of the scope of breach of promise law to cover seduction is an interesting development in women’s rights and it is logical that it may have originated with working-class women who were more likely to have left the family home to earn a living. Once away from home a woman was no longer providing any services to her parents so they could not obtain damages for seduction, depriving her of any right to compensation. A breach of promise claim closed this loophole and gave a woman a remedy in her own right if she surrendered her virtue to her fiancé. Any damages awarded belonged to her to spend as she chose. Used wisely they could provide her and the child with a degree of independence or security.

Breach of promise claims were not available to all unwed mothers. If an engagement had been announced, or a ring or marriage licence procured, then a woman would succeed in a claim. Those who succumbed to words whispered to effect the seduction were in a precarious position, as without a witness it was impossible to prove that marriage had been offered. Even if they could prove the promise, a contract made to secure sexual favours could not be enforced as it was deemed immoral. The rights of a seduced woman were limited to an order from the parish obliging the father of her child to pay for her confinement, which cost around £2, and to maintain the child at the rate set by the parish, until it was 12 years old.

Claims for breach of promise and for seduction ran in parallel for several decades. From the evidence available it seems that a woman who could prove breach of promise took that route because of the likelihood of higher damages being awarded. In 1818, when Elizabeth Elliott’s father sued Joseph Nicklin, his daughter’s former fiancé, for seduction, the defence lawyer contended that when an engagement had been broken, a woman should claim for breach of promise rather than her father being rewarded for her disgrace. This ingenious reasoning was intended to allow 19-year-old Nicklin to avoid paying any compensation, as he was too young to be held to account for his false promise. The appalled jurors refused to allow the brash youth to walk away from the consequences of his duplicity and awarded Mr Elliott £1,000, to support his daughter and grandson.

Later that year, Sarah Settle, the mother of an illegitimate child, was awarded £700 damages for breach of promise after John Crumbleholme, the father of her child, married another woman. In 1819, her mother received £200 for Sarah’s seduction in a separate claim. This does not appear to have set a precedent for a woman and her parent both receiving substantial compensation for a pregnancy and the claim for seduction gradually became a claim of last resort for the families of women who were unable to prove a broken promise of marriage. When summing up seduction cases, some judges indicated whether the woman would be able to prove breach of promise and juries seem to have taken this into account when assessing damages, giving good awards in deserving cases if a woman was unable to prove that a promise to marry had been made.

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Whilst a variety of social developments were turning breach of promise into a complex form of court action, a spinster with acute powers of social observation was penning some of England’s most enduring fiction. Jane Austen’s novels capture the middle-class and respectable working-class background to which the majority of breach of promise plaintiffs belonged. Austen wrote about a world she knew well, chronicling the trials and tribulations that could befall a young lady treading the path to marriage; ‘the only honourable provision for well-educated young women of small fortune, and however uncertain of giving happiness, must be their pleasantest preservative from want’.

This threat of penury stalked the daughters of middle-class gentlemen. In Pride and Prejudice, Mr Bennett’s estate is to be inherited by a male cousin. After covering the family’s living costs from his income he is unable to set aside sufficient money to provide his five daughters with a marriage settlement which would guarantee them a respectable husband. Their future fortune is just £800 each after the death of their mother. Invested in a secure manner at a three per cent return, this would yield an income of £24 a year. In contrast, wealthy tradesman’s daughters such as the Bingley sisters inherited capital of £20,000, which would have yielded £600 a year. This made them attractive if they chose to enter the marriage market, but prevented them from being obliged to do so, or to accept, like Charlotte Lucas, a marriage of convenience when an unexpected opportunity belatedly presented itself in the form of pompous clergyman, William Collins, heir to Mr Bennett’s estate.

Few options were open to well-bred young women in straitened circumstances. For most, being a wife with her own household, even in a loveless marriage, was preferable to a grudging home with relatives, perhaps expected to act as an unpaid servant in return for her keep until she died. Gainful employment outside the home was not plentiful. A post as a governess or companion made use of a woman’s skills and accomplishments, providing a roof over her head and a salary of around £20 a year. It also enabled her friends to pity her misfortune, rather than being embarrassed by her poverty. Women who were exceptionally skilled with a needle could earn some income from dressmaking, helping them to pay their own way in someone else’s home. Working-class women had a variety of ways to earn a living, in factories, coal mines, hostelries and domestic service. These jobs usually involved very physical work and, irrespective of any notions of taste, it is unlikely that women who had been brought up as ladies would have had the strength or stamina to cope with manual employment.

Marriage was a commercial contract to which both the bride and the groom were expected to contribute resources. A man brought his existing capital and his future expectations, which could be an assured inheritance or an assured salary from an occupation or profession. Heiresses such as Louisa and Caroline Bingley brought a large capital sum in their own right. Most women relied on their father to be able to pay capital into their marriage settlement and the more daughters he had the less he could do for any of them. As married women were not allowed to own property until 1883, it was conventional for a parent to channel his gift towards the couple’s future into a settlement. This was a trust fund set up to protect the woman’s assets by preventing her husband from deciding how any money given by her father should be invested or spent. Before the wedding took place a woman transferred any property she owned into her settlement to stop it falling under her husband’s control. The bridegroom usually added a capital sum to the trust to provide for her future widowhood. All funds, whatever their source, were managed for the woman’s benefit by trustees, who dealt with the income from investments on terms that had been agreed in writing by the husband-to-be before the marriage took place.

Negotiating a marriage settlement could be a complicated business and included several parties. The bridegroom’s father might be involved if he was providing any capital on his son’s behalf. Fathers of grooms could drive a hard bargain, requiring a substantial contribution from the bride’s family in return for their own. Arranged marriages without choice were not the norm, but romantic love between the couple was not considered important until the mid-nineteenth century. The son of a wealthy man was often expected to marry a woman who would bring yet more wealth into the family, rather than one who had little to contribute. One practical factor that smoothed the way for Jane and Elizabeth Bennett to marry rich husbands, despite their own limited expectations, was the good fortune that Charles Bingley and Fitzwilliam Darcy had both lost their parents before meeting their future wives and risked no parental displeasure by choosing to marry for love. Wills disinheriting a wealthy man who fell in love with a woman his family did not approve of were written by solicitors and were not works of fiction.

Jane Austen did not use breach of promise in her novels, but during her lifetime a number of court cases were reported in various newspapers and she must have been aware of the claim and of its potential impact on those entering the marriage stakes. In order to drive her main plots Austen included such risque topics as duelling, seduction, illegitimacy and elopement by her supporting cast. The absence of breach of promise in her novels may suggest that by 1810 it was already considered a mercenary and vulgar action.

Despite not dealing with the subject directly, the potential for a breach of promise claim to ruin a man lurks within Sense and Sensibility. As a naïve adolescent, Edward Ferrars formed an unwise and secret engagement with pretty, mercenary Lucy Steele. Although he realised his mistake, Ferrars chose to remain loyal to her. Honour is the reason ascribed to his reluctant constancy, but at a time when damages were soaring, the calculating Miss Steele would have sued for substantial compensation for her lost marriage and ruined any hopes Ferrars might have entertained of ever supporting himself decently, much less providing for a wife.

Much remains hidden about the formative period of breach of promise claims after the Church lost its right to decree that a wedding should take place. Early claims appear to have related to poor women trying to obtain support for an illegitimate child, to richer ones recovering money paid to the person who broke the engagement and to men recovering the costs of preparing a home when a woman refused to marry.

Within a generation, women had begun to claim and receive compensation for the lifestyle they had lost when jilted and for insult to their reputation. Information gleaned from newspapers and contemporary fiction suggests that this aspect of the claim was regarded with distaste and those who publicly sued for damages above and beyond any losses they could quantify may have been considered lacking in decorum. By 1815, as 20 years of war in Europe drew to a welcome close, the many diversities of a claim for breach of promise were poised to reveal themselves to a wider audience.