After my last post in August on the issue of a breach of promise in the Regency, I have received several more questions on the subject. I hope some of what I am sharing below will clear up those concerns.
I believe the first time I came across a breach of promise situation, as a reader, was in Georgette Heyer’s The Grand Sophy. In the tale, Sophy must convince the lady the arrangement is not a good match. This is an era in which marriage is pretty much forever, and engagements mean you are just as good as married. Neither person can call it off without damage to his or her reputation, but the lady has more leeway to back out. Even so, she still risks being labeled a jilt if she makes a habit of this.
Of course if the man is a “rotter,” then he can cry off, but the lady (or her family) could sue him for breach of promise. Likewise, if she has the money and he is losing it due to her crying off, he can sue her. The beach of promise before 1754 was different from what it was afterwards. It also changed in the 19th century. There were many such suits in the early 20th century. Some were what have been called palimony cases.
It may surprise quite a few people to learn the very right to bring such an action is relatively a “new trend,” rather than being buried in ancient law. It was also a right peculiar to the common law of England and those countries who have derived their system of jurisprudence from English ties. Unfortunately, today, the action is used often as a form of blackmail and fraud, rather than for what it was originally designed. It did not exist in Roman law nor among later civilizations, nor does it exist today, as we know it, in any country where civil law prevails.
Originally matters affecting marriage or divorce came under the protection of the ecclesiastical courts. Those courts gave no damages for breach of promise or marriage, but they did decree “specific performance of the promise where the words of promise had amounted to matrimonium pèr verba de presenti, which, by the canon law, of itself constituted a marriage, all that was enforced being the additional formality of solemnization ‘in face of the church.’
“But the notion of compelling parties to enter into and maintain so sacred and delicate a relation as that of matrimony was repugnant to the growing sense of refinement which came with advancing civilization. In England, the action for specific performance of such a contract fell into disuse, the last instance of it being in 1752, and the right to bring the action was formally abolished by the Act of 27 Geo. II, (1754). In lieu of the old proceeding, however, there was developed by a course of ‘judicial’ legislation the common law action for damages arising from the breach of the marriage.” [Wright, Harter F. The Action for Breach of the Marriage Promise. Virginia Law Review. March 1924, Vol. 10, No. 5, pp. 361-383, Online]
In other words, it was common law which defined how a breach of promise suit would proceed. It became what is legally known as an “assumpit,” meaning, an express or implied promise or contract not under seal on which an action may be brought. It is a former common-law action brought to recover damages alleged from the breach of an assumpsit. It is an action to recover damages for breach of a contract.
Ironically, an assumpsit action was not originally considered a contract at all. It was a “tort” action, meant to recover damages for a wrong executed against the person. Originally only those suing for misfeasance were permitted to seek damages in such cases. The idea of “deceit” on one of the parties involved became part of the ‘unstated’ law. In all forms of contracts there is the assumption both parties will perform in an agreed upon manner. To those overseeing these trials, a promise to marry was equivalent to a promise to build a new house out of a certain type of material. A promise is a promise.
Moreover, most marriages of the time held some sort of monetary value. The judges of the day, consequently, not only saw these cases as a “promise,” but they also took into consideration the contract was not only an agreement to marry, but something of monetary value to one or both parties involved.
In light of these stipulations, one can understand how, early on, more men than women launched the suit, for they were expecting a hefty dowry with the marriage. Young men often borrowed money against expected income from a woman’s dowry. Remember her fortune became his fortune once they were married. However, when we think of the idea of a jilted “bride,” it is easy to see how they came about. A woman’s reputation was a large commodity, even up through the Victorian and Edwardian eras.
Most of us think of breach of promise suits as being brought by a jilted woman against her former fiancé. And so they typically were later on, in the Victorian era and the Edwardian era. With a shorter “shelf life,” so to speak, and fragile reputations, a long engagement which came to nothing was far more likely to damage the intended bride’s future prospects than the groom’s.
Ginger S. Frost in her book Courtship, Class, and Gender in Victorian England calls such suits “the myth of breach of promise.” She cites Dickens’s Pickwick Papers and Gilbert and Sullivan’s Trial by Jury, as being responsible for some or our misconceptions, writing:
Suits for breach of promise of marriage were well known to the public in Victorian England. From at least the 1830s a variety of writers recognized the inherent humor and drama of the action and began to fictionalize the cases as they were then brought. The depictions of trials during the century gave a strangely uniform representation of the people who brought such litigation and the outcome of their conflicts. This interpretation built up an idealized myth of breach of promise, one which influenced the perception of the suit far more than actual cases did.
Do you recall this episode of the episode of Downton Abbey where the man dies in Lady Mary’s bed? For a quick refresh, in Season 1, episode 3, Kemal Pamuk (Theo James – yes, Theo James who played in Sanditon) and Lady Mary (Michelle Dockery) enjoyed a fleeting steamy romance, which ended when the pair got into bed together and Pamuk died in flagrante delicto. With a fresh corpse lying in her bed, and the prospect of her reputation being shattered by the scandal looming, Lady Mary wakes Anna Smith, her lady’s maid (Joanne Froggatt), and her mother, the Countess of Grantham, Cora Crawley (Elizabeth McGovern). Then, the trio carry Pemuk’s lifeless body back to his own room to make it look like he died in his sleep, alone. The “adventure” was based on a true story. You can read all about it HERE.
Tainted reputations were hard to repair, even with a public trial. Remember: Neither the male nor the female were permitted to provide oral testimony in these cases. It was purely a paper trail until the late 19th Century. Doing so was considered to prejudice those trying the case.
It was to a person’s advantage to employ a barrister with a certain “flare” for the dramatics. The man could possible sway the jury, although the judgement was supposed to be based on such factors as the actual costs incurred by either or both, the loss of reputation (and, Heaven forbid, virtue), the defendant’s ability to pay, the length of the engagement, etc.
Obviously, some unscrupulous individuals hid their money or even leaving the country to keep from paying the judgments against them. As society changed, so did the breach of promise suits. Men were eventually seen as “weak” and “unmanly” if they pursued the suits. Therefore, by Victorian times, most breach-of-promise cases were initiated by women. However, the law abolishing the action was not passed until 1971. As women earned other rights under law (ability to own property, voting privileges, employment and fair wages, etc.), dependence upon making a “good marriage” was no longer necessary for a woman to know success. Obviously, unlike the Regency era, a woman of today does not need to be a virgin to know success in marriage.
Thanks for an informative piece on this subject. I can imagine that many many women who discovered their intendeds weren’t who they originally portrayed themselves, were forced to go ahead with the wedding knowing there would be no support from her family if she wanted to cry off. The scandal would touch everyone in her family. And if she had managed to break the engagement, one way or another it was going to fall hard on her whether or not she was sued for breach of promise. But that would be the killer. I can dream up so many scenarios out of this subject. The reality however, was that there were most likely very few HEAs. Let’s all hope (wish?) lots of them had untouchable portions written into their marriage articles.