Chapter 3

A SUBSTITUTE FOR A SHOTGUN? THE DECLINE OF BREACH OF PROMISE 1870–1970

Marriages, I believe, are made in Heaven. I think I shall wait till I get there.

(William Wilkinson, breach of promise defendant, quoted in Yorkshire Herald, 8 July 1899)

Public attitudes towards breach of promise began to change in the 1860s, fuelled by changing values within middle-class society and increasing assertiveness amongst working-class women. By 1870, the middle-classes found that breach of promise claims conflicted with the idealised view of love and marriage they had grown to cherish. This domestic fantasy was sentimentalised by poet, Coventry Patmore, in 1859 when he christened the perfect woman ‘the angel in the house’, because she uncomplainingly devoted herself to ensuring a comfortable and harmonious home-life for her husband and their children.

As a life of cosy and companionable domesticity was considered most likely to result from a marriage founded on mutual affection and respect, the belief developed that if either of an engaged couple fell out of love, that person should end the engagement and make suitable recompense to the other party, rather than risk a life of wedded misery for them both. By this time, middle-class ladies usually resolved their broken engagements by private negotiation, so there is little evidence of how they behaved when their own hopes of becoming an angel in the house were destroyed. There is no reason to believe that, away from public view, middle-class ladies and their parents disdained to extract substantial financial compensation for a broken heart or damaged reputation.

The new law allowing the plaintiff and defendant to give evidence was not universally welcomed, especially when working-class women sued middle-class men. In 1870, family servant, Polly Frost acquitted herself well under a severe cross-examination of her case and her morals. When the defendant, Josiah Knight, took the witness stand he was inept and confirmed everything Polly had said. Knight’s counsel grumbled that the new law was “an act to enable servant girls to compel their master’s sons to marry them”.

In another case, Annie Jones, a 25-year-old dressmaker, described how her fiancé, Robert Ensor, tricked her into visiting his farmhouse where he raped her. After the assault, Ensor gallantly held up a light so that she could repair her torn dress and re-iterated his promise to marry her, if she told no-one what had happened. Three months later, when Annie confirmed that she was pregnant, he ended the engagement saying that her condition was nothing to do with him. He had to pay £200 in damages.

Any apparent advantage to a plaintiff from being able to give evidence proved illusory. The Evidence (Further) Amendment Act 1869 freed women to tell their story from the witness box, but it also stipulated that a successful claim must be supported by proof of an engagement other than the word of the plaintiff. This proof had to be of a ‘material standard’, a term the Act did not define, but which was intended to eliminate claims based on inference. The need for corroboration made breach of promise a very unusual claim as plaintiffs could win other types of claim on the strength of their own, unsupported testimony. Whilst this might appear an insult to the integrity of women, as they brought the majority of breach of promise claims, female fraudsters had lied about an offer of marriage.

In the 1870s the courts had to decide what was meant by a material standard of corroboration of a promise to marry. Not surprisingly, the issue was raised by defendants looking for a loophole, who began to ask whether the woman’s case met the new legal requirements. The task of defining what constituted material evidence fell to three senior judges sitting in the new Court of Appeal, who decided, in 1877, that such evidence could be weak, but it must be direct, and not capable of any meaning other than the defendant’s promise to marry the plaintiff. The need for corroborative evidence put some defendants into a strong position. Between 1870 and 1914, failure to meet the evidence standard accounted for 21 per cent of unsuccessful claims and women without written proof of an offer of marriage usually failed to establish their case in law. Viewed objectively, the balance of probability in several of these cases lay with the woman. Although some men were clearly victims of spurious claims before 1869 because of the low standards of evidence accepted by the courts, far more women appear to have suffered after 1870 because of the exceptionally high standard they had to meet.

Whilst the evidence requirements were being slowly worked out by judges, the fraud that they were intended to guard against continued unabated, and, according to contemporaries, intensified. Until the mid-1860s, false claims appear to have been brought by casual opportunists, who usually connived with family or friends on a one-off basis to relieve a rich man of some money. Harriet Spicer, who lost her case in 1865, may have been the first professional fraudster to pursue a man in the courtroom. Direct evidence of extortion is necessarily shadowy, but critics of breach of promise regularly cited the same handful of cases to illustrate their contention that men were being blackmailed with threats of court action, perhaps suggesting that the crime was not as pervasive as was being alleged.

However, it is noticeable that more unsuccessful claims were reported in 1870s newspapers than in other decades. At least one of these plaintiffs had previously settled another breach of promise claim by agreement. To lose one bridegroom might be considered a misfortune, but to lose two, or even three, seems like more than carelessness. At least two verdicts were quashed when the defendant proved that the woman had lied to achieve her victory. Until the Appeal Court established what was acceptable corroboration of a promise to wed, the evidence reforms gave a dishonest woman the opportunity to fabricate and present a spurious claim in court, instead of having to persuade a witness to speak for her.

One case overlooked by contemporaries was that brought by 22-year-old Alice Chick. In November 1878 her claim would have sounded depressingly familiar to those in court. Four years earlier she had met a respectable gentleman on a London street and they began a friendship. After several weeks he offered marriage to entice her into sexual intimacy, and then abandoned her the following morning. Nine months later Alice became a mother. The judge remarked that the case lacked any corroboration of a promise to marry, but as the defendant had not acknowledged the claim or provided any defence he allowed this silence to confirm Alice’s story.

A few weeks later, on Christmas Day, Michael MacCauliffe, a Deputy Commissioner in the Punjab, picked up his morning newspaper and read that Alice Chick had been awarded £400 for his breach of promise. This was the first he knew of the case and was a complete shock to him as he knew no-one named Alice Chick. He had been sailing to India when her solicitors began the claim and had never received any papers from the court. Perplexed, and disgraced in the eyes of those who knew him, MacCauliffe returned to England to try and discover why Alice thought he was the man who had seduced her. He persuaded a reluctant judge to set aside the verdict and grant him a new hearing, though only on condition that he paid £400 into court to protect Alice’s interests. The judge felt it unlikely that another jury would believe his defence.

There was no second trial. In August 1879, The Times printed a letter from MacCauliffe stating that Alice had given him written exoneration from the conduct she had accused him of in court and that, as a consequence, he had dropped a prosecution for criminal perjury against her.

The case was one of mistaken identity and it seems probable that Alice’s solicitor knowingly assisted her to bring a false claim. When Alice first took legal advice she named the man who abandoned her as an army captain called George MacCauley. The solicitor traced MacCauliffe, probably through a private investigator, and Alice identified her missing seducer from a photograph. It is possible that Alice could have made a genuine mistake. Perhaps more likely is that her solicitor thought that a senior civil servant earning £1,300 was a better prospect for damages than an officer earning around £300 a year and convinced her to claim against the wrong man.

By 1879, there were considerable misgivings among the middle-classes about breach of promise claims. Influential opinion had polarised with some sections of the establishment calling for the claim to be ended, whilst others fervently supported it. In 1872, when John Hawkins’s barrister expressed the hope that some day breach of promise actions would be abolished, Mr Justice Quain retorted that if that day ever came, he hoped any man who treated a woman in a shameful way and broke his promise without cause would feel the weight of the criminal law instead.

In May 1879, supporters and opponents locked horns when Farrer Herschell, a leading barrister, and the Liberal MP for the City of Durham, proposed a motion in the House of Commons to restrict damages in breach of promise claims to the actual losses suffered as a result of relying on the promise, such as the wasted cost of wedding preparations. Introducing the debate, Herschell identified that breach of promise ‘stuck its roots deeper into the social system and trawled the life of society at more points than would at first sight appear’, and illustrated this with a wide-ranging critique of the negative aspects of breach of promise, as perceived by upper-middle class, male society.

Herschell argued that modest and decent women, however badly-treated by a man, would not sully themselves by baring their feelings in a public court for financial compensation. He thought that women who brought claims were using it as a way to extort money, pointing out that it was impossible to place a financial value on hurt feelings and the loss of marriage. Drawing on his practical experiences as an advocate, Herschell was well-placed to explain how the courts treated a man who decided to defend a claim. He pointed out that the merest hint that a woman was anything but a collection of all the female virtues, or had given her fiancé any reason to reconsider his promise, brought down a torrent of invective from the plaintiff’s counsel and the judge and risked the displeasure of the jury in a heavy award of damages.

Herschell also exposed the unpleasant side of Victorian attitudes towards beauty and money. He explained how a pretty woman with a good chance of another engagement received far higher damages than a plain woman whose loss was probably greater, as her chances of attracting another suitor were much lower. This was a reversal of the apparent fairness demonstrated by a Leicestershire jury in 1817, who pointedly answered the question ‘will you give as great a price for a homely piece of goods as for the finest commodity?’ by awarding plain Mary Cooper £1,000.

Equally unpalatable to the modern mind, though certainly in keeping with the views of Charles Dickens, was Hershell’s revelation that legal professionals had voiced self-interested opposition to restricting the scope of breach of promise because they objected ‘to the loss of such cases in a season of such depression of trade’. As Herschell pointed out, providing a living for legal professionals was not a justification for retaining any law.

Members of the House of Commons backed Herschell’s call for reform of a law that was ‘scandalously abused’ by 106 votes to 65. A few months later, barrister Charles McColla published a short and influential book about the history and social considerations relating to breach of promise. McColla reiterated the points made by Herschell and added much more detail about frauds and misuse of the claim, even suggesting that the lovers’ leap could be as effective as money in curing broken hearts. Herschell and McColla were accurate in their analyses of the many problems attached to breach of promise claims, but the points they made were not criticisms of a bad law but of a law that was operated badly.

Despite contemporary belief, middle-class ladies did recover damages for broken engagements, usually through a private settlement rather than by parading their feelings in court. The law could deal with fraud and extortion with a period of unpleasant imprisonment. Men who gave in to blackmail may have considered themselves stuck between a rock and a hard place, but giving in was their choice. The Observer acknowledged that ‘there are certain circumstances under which a man who has regard for his own reputation will rather pay blackmail than allow the story of his own folly to be made public’. It was usually choice rather than chance that led a prosperous man to become entangled with a lower-class woman, with several defendants having initiated the relationship by striking up a conversation with a woman in the street.

Women who enforced their legal right to compensation after a broken engagement, however distasteful to the defendant or wider society, were not committing any crime, a point critics sometimes seem to have overlooked when branding them extortioners. In some cases the woman was out-of-pocket because of the defendant’s broken promise and the damages were not necessarily great once she had been reimbursed for this. Other problems arose from the legal system itself. Placing a financial value on a lost marriage was difficult, but judges could have addressed the scandal of unrealistic awards of damages, rather than turning away when defendants asked for clearly excessive sums to be reduced. Penalising a man for criticising a woman when defending her claim, condoning impudent claims and awarding damages based on beauty were failings of jurors rather than of any law.

Although Herschell won his debate this did not lead to a change in the law. On four separate occasions between 1881 and 1890 individual MPs each sponsored a Private Member’s Bill, but such bills rarely succeed unless there is substantial consensus about the desirability of change and tacit support or direct help from the government. Many establishment figures were strong supporters of a woman’s right to bring a claim for breach of promise. They believed the claim protected women from exploitation by discouraging men from uttering pledges they had no intention of keeping or of changing their mind capriciously.

The availability of damages made men think carefully about their actions and might indirectly prevent women from having to claim public assistance. A woman who withdrew from the marriage market could lose out on other opportunities to find a husband and provider. One who gave up her job only to be jilted might struggle to find other employment. Women who wasted money on abortive wedding preparations could have saved their limited resources for a rainy day. Those who had given birth to an illegitimate child after being seduced under a promise of marriage, used the claim to obtain a lump sum to help with child maintenance.

How much of the establishment’s attitude related to protecting economically disadvantaged working-class women and how much of it related to controlling any perceived promiscuous impulses of less affluent males is unclear. It seems likely that social control, rather than any respect for the female gender, was the reason establishment figures opposed the half-hearted attempts at reform in the 1880s. The Appeal Court showed little regard for working-class women who brought claims against wealthy men.

In the 1880s, breach of promise began a further period of change, possibly linked to Herschell’s and McColla’s pointed criticisms. Barristers gradually toned down the rhetoric about a woman’s disappointed hopes or a man’s heartless conduct. Judges regularly advised juries to ensure that damages were not out of proportion to the parties’ status in life and to take account of what the man could afford to pay.

As damages became a little more aligned with a defendant’s means, it became apparent that a few women were motivated by vengeance alone; a point an occasional plaintiff acknowledged from the witness box. In 1896, Ellen Jones received just £25 from printer’s manager, James Wilson, in a claim of barely-concealed revenge. Ellen acknowledged that they were an incompatible pair, describing their many quarrels as ‘six of one and half a dozen of the other’. Wilson said that when he asked her to consider whether they really could be happy together, Ellen had threatened to make trouble for him and his parents if he broke the engagement. By the time the claim was heard she had already been courted by someone else.

Given the few opportunities working-class women had to support themselves in any degree of comfort it is unsurprising that those who had a claim for breach of promise tried to improve their financial security. Some had no option but to take a man to court if he had cost them money or refused to negotiate a fair settlement. Nor is it always easy to condemn an impoverished woman for succumbing to the temptation to make a few pounds from blackmail or extortion if the opportunity presented itself or a rich man wanted to keep his bad conduct a secret. Middle-class observers frequently criticised working-class women as unladylike and grasping for exposing their feelings in public in order to obtain damages, but failed to notice that women from their own class were also motivated by greed and opportunism.

Gertrude Ricketts, the daughter of an army officer, obtained substantial damages from two men. In 1892, she settled a claim privately, receiving £1,000 from a now unknown man. Whilst visiting India in 1901 she embarked on a second romance, clearly determined that if she did not land her army captain, then she would land the money she thought he had. Gertrude was described as ‘a spider weaving a web for an unwary fly’ for the businesslike approach she adopted throughout her courtship by Thomas Gaskell, making copies of all her letters before she posted them and carefully dating any she received from him.

In 1903, a London jury awarded her £1,500, which forced Gaskell to apply for bankruptcy a few weeks later. His total assets were less than £62. When he applied for his discharge from bankruptcy later that year Gertrude opposed it, because she had not received her money. Gertrude said that she would accept payment by instalments from his army pay, a solution Gaskell rejected because most of his salary was swallowed up by regimental charges for accommodation and food. The judge postponed any decision about Gaskell at this point, indicating that he ought to pay at least £600.

The unresolved situation then disappeared from the news and no further information about Gaskell has been located, raising the possibility that he either changed his name or left the country to escape damages he could not afford. Despite the disappointment of mistaking Gaskell’s actual wealth, Gertrude was not left in a difficult financial situation because of her broken engagement. As an officer’s daughter, she enjoyed a pension of £60 a year, which makes the dogged manner in which she pursued Gaskell for money he did not have particularly unpleasant.

Gertrude was one of a declining number of women bringing a claim for breach of promise when she took court action. Although public distaste had not reduced claims, by the twentieth century awards of low damages may have had this effect. Added to this, intellectual women were critical of the action, considering that the special favour it bestowed on females was contrary to gender equality and promoted marriage as a woman’s career.

During the Edwardian age, the combination of low awards and better educational and employment opportunities for women contributed to breach of promise becoming a very tawdry action. For 18 cases mentioned in newspapers in 1914, the lack of detail highlights the contempt many felt for those who brought claims. One was fraudulently brought by a married woman, who was jailed for aggravated perjury a few months later, whilst another couple had cohabited for 26 years until he married someone else. The highest damages were £500, awarded to two women whose claims had aggravating elements. Two women received a similar sum though negotiation. A bad-tempered woman received only a farthing, the smallest coin of the realm, as her tantrums had prompted her fiancé to have second thoughts.

Breach of promise claims continued throughout the Great War, although at a very low rate; a surprising reminder that life went on away from the scenes of carnage and some men never saw active service. Spring 1915 produced a very unusual case, which demonstrates how little those who were not involved in combat understood its realities at that point. A defendant, Lieutenant James Montague Coutts Duffus, had been mobilised for active service, obliging the War Office to send a telegram to court stating that Duffus could not attend the hearing as he could not be spared from his battery. On receipt of the telegram, the presiding judge adjourned the case until the end of the war. There is no indication that the case was brought before a jury when Duffus returned from the trenches.

The number of breach of promise claims began to increase in 1919, but this did not presage a return to the pre-war situation: the public mood had changed. Women suing for money they had spent on wedding preparations sometimes failed to recover all of it. Two women won cases, but only gained a farthing in damages and were told by scathing judges that their claims were against public policy or offended the feelings of right-thinking people. The only women who appear to have recovered good levels of damages were in cases with aggravating conduct by the defendant. In 1921, Mr Justice McCardie stated in court that breach of promise law should be reviewed, as two-thirds of claims were not brought to rectify a loss but to inflict public hurt on a man who had disappointed a woman. He awarded Minnie Sutton just £25 for the expenses she had incurred while preparing for marriage and for Sydney Pearce’s unmanly conduct, but refused to compensate her for matrimonial loss, stating that a hot-tempered woman and a man addicted to alcohol would have enjoyed no happiness in any case.

By 1923, a combination of public scorn, contemptuous damages and being denied their legal costs had forced most vengeful or vexatious claimants out of the courtroom. In cases where a plaintiff was suing to recover money she had spent, damages tended to be restricted to the actual financial losses caused by the defendant’s breach, with no awards for hurt feelings or future expectations, unless the defendant had behaved in a disgraceful way. Woman who were seduced under a promise of marriage, whether or not they became pregnant, continued to receive substantial awards, as did Doris Hartley, whose wealthy fiancé ended their engagement when her father lost money.

Several cases were brought to resolve specific issues which had arisen from a broken engagement and some were decided in the highest courts in the land. These included splitting the assets of a bigamous marriage, ensuring provision for illegitimate children who were not being maintained and resolving property disputes, such as the ownership of the engagement ring. The one that most interested the press was the claim by Emily Fender, a young nurse who had accepted a proposal from a divorcing man. She became formally engaged to Sir Anthony Mildmay after the decree nisi was issued, but before his divorce was made absolute. Judges decided that when a decree nisi had been issued a marriage was effectively dissolved and a plaintiff could rely on a promise made at this point, allowing Emily to receive damages of £2,000 in 1937.

Public disquiet again emerged in the mid-1930s, with occasional parliamentary questions and reform proposals in the press, linked to a belief that breach of promise was increasingly being used as an instrument of extortion. In 1935, Harold Blakeley, a retired cotton merchant, paid Margaret Hope £400 because he did not want his name in the papers. After investing the money she tried to obtain more, alleging that he had proposed to her a second time. Blakeley accepted the inevitable publicity and defended her claim. The jury found in his favour. Damages too were becoming a cause of concern, with The Guardian drawing attention to an award of £158 against a man who earned less than £3 a week. This was more than his annual income.

One of the first government actions when Britain went to war in 1939 was to suspend jury trials in civil cases. A trickle of breach of promise claims were heard by a judge who decided the damages. Reports show that these hearings had a no-nonsense quality; judges were not about to agonise over hurting a woman’s feelings with harsh comments about her motives or sending a man into bankruptcy because he had exaggerated his means. When jury trials resumed in the late 1940s, claims were usually brought by foreign women, older women and women who had been lured into sexual relationships believing in a promise of marriage.

Older women tended to be survivors of bigamous marriages. As these were invalid, property and inheritance law could offer no help when a woman discovered after her man’s death that she was not, in law, his widow and had no right to support from his estate. Breach of promise law adapted and helped them. Sensible and sympathetic reasoning by judges in the Appeal Court established that anyone who entered a bigamous marriage could obtain damages, the amount being the jury’s pragmatic assessment of what was appropriate in the circumstances. In some cases this was a few thousand pounds.

By 1960, MPs were again questioning the relevance of breach of promise in a modern society, though with no public clamour for change, the Conservative government did not consider it a priority for reform. The impetus for review came in 1965 after the new Labour government set up the Law Commission, whose functions included ascertaining whether laws were up-to-date. The Commission decided to review breach of promise because it seemed to rest on out-dated social assumptions.

In October 1969, Commissioners recommended abolishing breach of promise. Public consultation had confirmed that many people thought it was a charter for gold-diggers, or a legal substitute for a shotgun in its power to coerce a reluctant groom to the altar. These criticisms were perceptions of problems rather than reflecting widespread practice, but the Commission concluded that the stability of marriage was important to society and it was inappropriate for public policy to sanction the threat of legal action to push unwilling people into a marriage. The Commission recognised that abolishing the claim would be unfair in the situations where it solved practical problems arising from some failed engagements and recommended that any reform should include provision for dealing with property issues and for maintaining the survivors of a bigamous marriage. It also recommended the abolition of other obsolete claims which treated a person as someone else’s property.

During 1970, the Legal Reform (Miscellaneous Provisions) Bill was considered in Parliament and passed into law as:

An Act to abolish actions for breach of promise of marriage and make provision with respect to the property of, and gifts between, persons who have been engaged to marry; to abolish the right of a husband to claim damages for adultery with his wife; to abolish actions for the enticement or harbouring of a spouse, or for the enticement, seduction or harbouring of a child; to make provision with respect to the maintenance of survivors of void marriages; and for purposes connected with the matters aforesaid.

From 1 January 1971 it was impossible for either party to recover wasted expenditure on wedding arrangements or for a woman to be compensated for seduction or pregnancy. Child maintenance law no longer restricted what the father of an illegitimate child could be required to pay, so breach of promise damages were not needed to supplement the father’s contribution. Spouses who had unknowingly entered a bigamous marriage could bring claims for maintenance, and property disputes between engaged couples were to be dealt with as though they had been married. An engagement ring was confirmed as an unconditional gift to the woman, unless a man had stipulated any conditions when he gave it. The only breach of promise cases that remained to be heard were those where court action had already been started. The last was heard in May 1971.

Eighty-six words swept away more than three centuries of history. They brought to an end a claim which, in 1803, had been described as one of ‘great discrimination and diversity’. Although breach of promise had been denigrated and despised since the 1830s, it had etched a very unusual place in the fabric of English society. Some of its earliest beneficiaries were middle-class ladies, but in the class-conscious nineteenth century, it increasingly provided an effective redress for working-class women at a time when poor women struggled under the double disadvantage of gender and class. It was a very flexible claim, adaptable to changing social circumstances, and able to offer protection to those who fell outside the scope of other laws. Its much mooted demise only occurred when women no longer needed it.

By 1971, gender assumptions were breaking down and children’s rights to maintenance had been improved. A country that had once viewed marriage as a commercial contract now saw it as a state to be entered into willingly by both parties and attached no public disgrace to a jilted woman, if a man decided, for any reason, that he could not honour a commitment to make her his wife.