Conclusion

It would be most mischievous to compel parties to marry who could never live happily together.

(Comment made by Lord Mansfield in Atcheson v Baker 1796, quoted by Law Commission Report No 26, in 1969)

The spectre of breach of promise overshadowed amatory relationships, although, compared to the number of engagements formed between 1780 and 1970, a court hearing was comparatively rare. Estimates suggest that 3,000-4,000 cases may have reached court in this period, with the majority being heard towards the end of the nineteenth century.

Most women knew when they could bring a claim against an errant male and all but the most foolhardy or naïve men realised that breach of promise hung above their heads like the sword of Damocles if a woman could prove that they had raised and then dashed her hopes of marriage. Some grooms went unwillingly to the altar rather than face a financially ruinous claim and others made a private arrangement to escape from an engagement they no longer wished to honour. How many of the reluctant grooms found happiness in their marriage we can never know.

Part of the popularity of breach of promise, and the reason it endured for over 200 years, was because other branches of the law refused to acknowledge the varied problems that stemmed from failed emotional relationships between men and women. In the nineteenth century, when poor women lacked rights and the financial means to mount legal challenges to unjust situations, sympathetic judges gradually stretched the boundaries of breach of promise to give them a practical remedy in the form of damages, when property, inheritance or family maintenance law ignored the root cause of their plight.

Even when a woman had given a man her money, helped him to build a successful business with her unpaid work, or maintained him with her wages, she had no claim against his assets when the relationship ended unless she was his lawful wife. Unwed women who had given birth found that the parish could only compel the father of their illegitimate child to pay a very small sum towards its support, even if he was wealthy and she had no earning capacity.

The disadvantage of addressing situations such as these through a claim for breach of promise was that the woman’s remedy was at the discretion of the jury, and she had to jump through hoops in order to receive anything. Initially, she had to find the money to pay lawyers to argue her case and establish that a promise of marriage had been broken. Proving a proposal was not easy if a determined man with financial means chose to deny her allegation. If she convinced a jury that the defendant had promised marriage, her character became the subject of an informal assessment, based on the whim of the jurors rather than on any objective principles, to decide how much compensation she deserved.

Unusually for a legal claim, breach of promise was subjective in its approach, compensating the person rather than the injury sustained. Contemporaries and modern researchers have struggled to find consistent principles to explain decisions in breach of promise cases, and arguably there were only two. Men who claimed damages from a woman could recover their out-of-pocket expenses if she changed her mind, but only if they could demonstrate that their proposal had not been made to try to gain control of her wealth.

Middle-class ladies were entitled to generous damages because refined women were considered to have very sensitive feelings, and supposedly experienced great emotional distress if they were rejected by the man who had won their heart. They also suffered the indignity of a public insult to their reputation when a man refused to honour his pledge to marry. This gender and class-based approach was firmly established by the end of the eighteenth century, and remained unchallenged until the start of the twentieth, despite changes in other social values. Even in 1893, The Guardian argued that:

in the vast majority of cases, the unlimited right of action for breach of promise is an unmingled wrong. The class of person for whose benefit it was designed for the most part scorn to have or shrink from having their injuries dragged into the light of a court of law, submitted to forensic and judicial analysis and made the subject of pecuniary assessment. On the other hand, the average plaintiff in a breach of promise case, even if she is not an impostor, is at least a person for whose wrongs one farthing would be ample compensation.

Although the same editorial acknowledged that there were cases where breach of promise could provide a remedy for real injustice, it nevertheless considered that breach of promise plaintiffs were wasting the time of the courts, which would be better spent trying ‘bona fide and substantial suits’.

***

Although the amount of compensation for a lost marriage was discretionary, juries appear to have treated some issues with a degree of consistency. A rough and ready logic can be discerned in their approach at various periods, suggesting that jurors were influenced by prevailing middle-class attitudes and reflected wider public opinion in their decisions. It is difficult to argue that any firm rules emerged, because of the number of exceptions that confound any suggestion, but the following may have guided courts and juries in their decisions at different points.

Jurors in Georgian times appear to have made the most effort to link damages to what a woman might have lost and, in doing so, set precedents for substantial awards. They established the concept that a lady should receive good compensation for her hurt feelings, as well as for any quantifiable losses she had suffered, and that a man who had behaved in an ungentlemanly manner could have exemplary damages awarded against him. These tenets were extended to other countries whose legal systems were rooted in English law, with high damages also being awarded in North America and countries in the British Empire. This contrasted sharply with the position in Europe, where a breach of promise claim was never particularly lucrative, as damages were restricted to the actual losses that a plaintiff had sustained by the promise being broken.

As the nineteenth century progressed and the middle-classes became concerned about the escalating costs of maintaining the poor, jurors may have been motivated to ensure that a woman should not be chargeable to the parish because she had been let down by a man. Plaintiffs who had been seduced under a promise of marriage, and had an illegitimate child to support, received higher damages than those without children.

Worry about a woman becoming a drain on the poor rate may also explain why jurors upheld some very unlikely contentions by plaintiffs and awarded them a few pounds in damages. Transferring a small sum from a well-heeled man, who had perhaps not behaved as a proper gentleman should, to help a needy woman was a neat way of assisting her, even if it was outside the law. Most men escaping a breach of promise claim with damages they could afford to pay would have considered it a victory rather than a verdict to be overturned on principle.

Decisions by some Victorian and Edwardian juries appear to have involved class distinction. Ladies received ample compensation, irrespective of any injury sustained, and women who worked for a living generally obtained much less than those who aspired to dependant domesticity. One exception was 19-year-old Florence Joseph, a feather worker, who sued a London bookmaker with capital of £20,000 and earnings of £1,500 a year. She was awarded £1,500. In his summing up, the judge pointed out that although the defendant was rich the jurors should bear in mind the plaintiff’s humble position in life and ignore any argument that her loss was greater than that of a better-off woman, clearly hinting that the jurors did not need to be generous to her.

Class distinction may also have applied to defendants. Men of limited prospects and resources were sometimes ordered to pay damages that substantially over-stated what the plaintiff had lost by not becoming a poor man’s wife, whilst prosperous or powerful men enjoyed great, though not absolute, freedom to behave badly towards poor women. The vocal critics of breach of promise, who became obsessed with the delusion that all poor women used breach of promise as a way to extort money, handed unscrupulous men an easy defence. A number accused the discarded woman of blackmail, or contended that she had previously chosen to live as a mistress, to try to defeat her claim. Those who were unable to deny an offer of marriage could hope to escape with mild censure rather than a hefty bill, unless their conduct had been totally reprehensible.

In the early twentieth century, breach of promise entered yet another phase. As women were now claiming economic and social equality in all aspects of life, juries began to hold them much more accountable for their conduct during their engagement. Contemptuous damages were not new, but trivial sums were regularly awarded to deter the vengeful from bringing unreasonable cases. This meant that the claims reaching a jury were those involving a specific legal point, or where the defendant refused to negotiate a sensible compromise, or stood up to attempted blackmail.

During the mid-twentieth century, as women began to obtain better access to education and improved access to employment, breach of promise became an anachronism, even whilst it was still on the statute books. The speed with which women scorned to use it reflects just how irrelevant eighteenth century values were to the rock-n-roll age and the swinging sixties.

As the influence of social class began to weaken and externally imposed rules of conduct were replaced by more liberal attitudes, it became impossible to contend that a woman’s character had been insulted and her chances of marriage ruined because a particular man refused to set a date for the wedding. In addition, the assumption in breach of promise claims that one party was wholly in the wrong, was at odds with the modern belief that when personal relationships broke down, the arrangements for separation should ignore fault and not compensate one party as a victim or punish the other for behaving badly.

When child maintenance was linked to a man’s means and it was recognised that property disputes following a broken engagement, and maintenance for those in bigamous marriages could be transferred to other branches of law, breach of promise ceased to offer any benefit to the majority of women. Had it survived it would have been only a weapon for gold-diggers, extortioners and the vindictive to exact money or revenge, either in court or by private arrangement. Women, the usual beneficiaries of breach of promise claims, acknowledged that it is impossible to prevent feelings changing and unwise to enter into a life-long union if one party has doubts about the wisdom of taking that step. Improved opportunities for women to work in a range of careers meant that marriage was no longer their best chance of financial security, and most now considered the temporary pain of a broken engagement preferable to life in an unhappy marriage.

It is less than half a century since a refusal to marry ceased to be a cause for legal action. Although the threat of court proceedings for breach of promise entwined itself into the social fabric for more than a century, its traces are already as hard to locate as Dr Beeching’s axed railways. Henry Joy, architect of Bournemouth’s Victorian shopping mall, is commemorated by a blue plaque, and remembered as a local entrepreneur of vision. His ‘mean, malignant and injurious’ conduct towards Elinor Miller receives no mention. When Mary Elizabeth Smith tried to ensnare Earl Ferrers in a web of lies it was predicted that the case would be ‘handed down to posterity as one of the causes celebres of Europe’, yet few now know of her fictitious claim, or the fascination it held for Victorian society for many years.

Several defendants in breach of promise cases went on to fame, fortune, or notoriety and now have web-pages devoted to their lives and achievements, but it is rare to find any reference to the claim made against them, or the woman they jilted. Following the lead of Victorian and Edwardian writers, modern novelists and dramatists who set their work in these eras ignore breach of promise in their plots, despite the dramatic potential of the scenario.

The concept of claiming damages for a broken engagement is already so alien to modern understanding that the few surviving vestiges in The Pickwick Papers and Trial by Jury, seem only to confirm the good sense of those late-Victorians who declared that breach of promise was all about the greed and opportunism of avaricious women. That scores of decent, respectable and poor women were forced to bear the embarrassment of exposing their feelings in public because an amoral defendant had caused them financial loss or harm, no longer weighs on the scales of justice.

The concept of breach of promise of marriage, and the rules by which it was played out in the legal system, were developed by privileged and powerful men in an age where women had few legal rights. Georgian judges, barristers and jurors decided that the public honour of well-bred young ladies must be vindicated and that women who had been left holding the baby deserved financial compensation from its father.

Allowing these plaintiffs to obtain damages for a broken engagement beyond any out-of-pocket losses, opened Pandora’s box and released the deadly sins of human nature. Greed, opportunism, revenge and fraud were never intended to fuel a successful bid for damages but when self-interested lawyers latched on to the claim they made it available to any woman who had been jilted by a man and, on occasion, to hussies who had not. The upper-class judges who mistakenly accepted that refined young ladies were tender creatures deserving special consideration, inadvertently dealt all women the upper hand in amatory arguments and some women used breach of promise to devastating effect to better their prospects at the expense of a man who had fallen foul of the idiosyncrasies of an unusual law.

In an age when men usually held all the aces, who can criticise any woman for playing to her own advantage when she discovered that in this game she could call the shots?