Shannon Winslow's "Jane Austen Says…"

Today’s subject: some surprising facts about breach-of-promise suits. Did you know that, early on, they were just as often brought by men suing women as women suing men? Did you know that neither the plaintiff nor the defendant was allowed to testify? These are some of the weird things I discovered when I researched the subject for my second Austen-inspired novel, For Myself Alone.

The breach-of-promise suit is a curious legal action largely confined to the 18th and 19th centuries. I’ve always been intrigued by the phenomenon, and I’m a little surprised that Jane Austen never ventured onto the topic, since it has a clear connection to one of her major themes – the financial survivability of the well-bred lady. Perhaps she would have gotten around to it if she’d had time to write a few more books.

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. With a shorter “shelf life” and a more fragile reputation, a long engagement that came to nothing was far more likely to damage the intended bride’s future prospects than the groom’s. But it turns out that’s not the whole story.

My ideas, like most people’s, had been heavily influenced by popular culture – what author Ginger S. Frost in her book Courtship, Class, and Gender in Victorian England calls “the myth of breach of promise.” She cites works such as Charles Dicken’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.

What is NOT generally know is that, early on in their history (1650 – 1800 approx.), these suits were just as often filed by a jilted gentleman as by a jilted lady, seeking damages either for financial loss or simply for “non-performance of a marriage contract.” A young man would often borrow money against his “expectations” (what he stood to gain by inheritance or marriage), so he could be in a real bind if his wealthy fiancé backed out of the agreement. Remember that by law, her fortune became his the moment they married.

Going to court was perilous, though, often adding insult to injury. Tainted reputations could be further tarnished by a public trial and the unwanted attention of the press in high-profile cases. And one could never be certain one’s side of the story would even get a hearing, since neither the plaintiff nor the defendant was allowed to testify! That’s right. Until late in the 19th century, the only two people with a certain knowledge of the facts were expressly forbidden to take the witness stand. It was thought to be potentially too prejudicial.

Also, juries were notoriously unpredictable. They were supposed to base the amount they awarded to successful plaintiffs on factors such as length of the engagement, actual costs incurred, loss of reputation (and possibly loss of virtue), the defendant’s ability to pay, and perhaps some punitive damages for “wounded feelings.” But they were known on occasion to ignore the evidence and the judge’s instructions in order to side with the barrister who put on the best show in court, awarding either nothing at all or an outrageous sum, according to their collective whim.

Defendants sometimes went to extreme lengths to avoid paying the judgements too – risking imprisonment, hiding their money (or divesting themselves completely), even choosing to emigrate instead.

Over the years, the life and character of the breach-of-promise suit gradually evolved. Public opinion shifted and so did the demographics. A man who took his former fiancé to court soon risked being branded “unmanly” (if he claimed emotional devastation) or called an unchivalrous cad (if he pleaded his losses were primarily financial). Thus, by Victorian times, nearly all the breach-of-promise cases were being brought by women.

Ultimately the phenomenon died out in the early 20th century (although the law abolishing the practice in England wasn’t passed until 1971), its demise reflecting the changing role of women in society, who began to need this legal recourse less and less. As women gained the right to vote, to own property, and to participate in commerce, their future security no longer depended solely on making a good marriage. And with the sexual revolution, women were no longer considered by most to be “unmarriageable” if they had lost their virginity during a former relationship.

So as you now know, breach-of-promise suits could be a painfully messy business. But that didn’t deter me. In For Myself Alone, I threw my unsuspecting heroine, Jo Walker, right into the middle of one. Fortunately, she had an excellent attorney to advise her about the pitfalls and her legal options. Here is part of their conversation:

“Excuse me, Mr. Gerber. May I be frank?”

“By all means.”

“You speak of claims, damages, and settlements as if it is simply a matter of course. Perhaps for you it is, but not for me. In fact, it strikes me that the whole scheme is little better than a form of legalized extortion! Do not misunderstand me; the money is of minimal importance to me. It is the principle involved that is impossible to surrender. Mr. Pierce’s bad conduct is responsible for placing me in this dreadful position. And now, on top of what I have already suffered, he threatens to drag me into court. Does such barbarous behavior deserve to be rewarded?”

“I understand your repugnance for the notion, Miss Walker… My own personal sympathies tend in much the same direction, I assure you. However, years of experience have taught me that survival often demands compromise. In the judicial system, taking an unyielding stand for one’s principles can prove exceedingly hazardous… and enormously expensive. That is the plain truth. As your solicitor, it is my sworn duty to steer you away from such peril. …Nevertheless, should you be firmly of that mind, there is another course of action you may wish to consider – a very effective but extreme measure. I hesitate even to mention it.”

“Tell me. …You promised to be straightforward with us, sir. Now tell me your idea!”

“As you wish Miss Walker…”

What would you recommend to a woman in Miss Walker’s plight – being unfairly sued for damages in breach of promise? Would you pay a modest settlement to make the problem go away? Would you put your trust in the court system for vindication? Or would you stand on principle, whatever the cost? I hope you will read For Myself Alone to see what Miss Walker decides and how it changes the course of not only her life, but others as well.