Even after the decline of arranged marriages after 1780, marriage still remained largely a business transaction. Even the promise to marry was considered an enforceable contract, with a breach of promise suit a possible consequence of a broken engagement. Infringement on another man’s marriage ‘property’ could result in even more spectacular "crim con" cases and the award of greater damages.
Breach of Promise SuitsAs early as the fifteenth century, English ecclesiastical courts equated a promise to marry with a legal marriage. By the 1600’s, this became part of common law; a contract claim one party could make upon another in civil court suits. (And you thought this was just the stuff of modern daytime television!)
To succeed in such a suit, the plaintiff, usually a woman, had to prove a promise to marry (or in some cases, the clear intention to offer such a promise), that the defendant breached the promise (or the implied promise to promise), and that the plaintiff suffered injury due to the broken promise (or failure to make the implied promise. Don’t think about it too hard, it’ll make your head hurt.)
Breach of Promise claimsA breach of promise suit required a valid betrothal. Promises to marry when both parties were below the age of consent were not valid. Similarly, promises to marry made when one was already married (as in I’ll marry you if/when my current spouse dies—how romantic!) or between those who could not legally marry were not enforceable.
If significant and material facts were discovered that could have influenced the agreement, then betrothal could be dissolved without penalty. So, issues like misrepresentation of one’s financial state, character, mental or physical capacity presented valid reasons to end an engagement.
If a betrothal was valid, a breach of promise claim could be presented in court.
ReasoningWhy were such claims filed when it seems like it would be far easier, less painful and less embarrassing for a couple to simply go their separate ways? When a promise to marry was broken, the rejected party, usually female, suffered both social and economic losses.
Socially, an engaged couple was expected to act like an engaged couple. Though it seems unfair in modern eyes, the acceptable behaviors she may have shared with her betrothed, would leave her reputation damaged if he left her. Moreover, though premarital sex was officially frowned upon, it was known that a woman was much more likely to give up her virginity under a promise to marry. But if that promise was not kept, her future search for a husband would be significantly hampered for having broken the code of maidenly modesty.
The loss of reputation translated to serious economic losses, since middle and upper class women did not work outside the home and required a household supported by a husband’s wealth. A woman with a tarnished reputation was unlikely to marry well.
Damage AwardsPerhaps as a result, a woman was far more likely to win a breach of promise claim than lose one. Middle-class ladies were generally able to obtain larger damage awards than working women, though cases varied greatly. About half of women winning damages obtained £50 - £200. (For reference, middle class family of four could live comfortably on £250 a year.)
While these awards could indeed offer assistance to wronged plaintiffs, the system was also ripe for abuse. Jurors were often unduly sympathetic toward jilted women, especially when they were attractive or portrayed as particularly virtuous. Damage awards could easily be swayed by such sympathies, making false claims very tempting. If all this sounds much like modern reality television, criminal conversation cases resemble it even more.
Criminal ConversationDuring the late Georgian era, in England, sleeping with another man’s wife was not a legal offense. (Interestingly, it was in Scotland, though.) However a little detail like that could not stop cuckolded husbands from taking their wives’ adulterous lovers to court.
Since dueling over offenses of honor was increasingly frowned upon, gentlemen sought reparations in civil court. Civil laws concerning trespassing also addressed issues of ‘wounding another man’s property’. Since a wife was by law effectively chattel, a husband suffered damage to her chastity when adultery occurred, thus entitling him to financial compensation under civil law. If she ran off with her lover, the husband could also claim damages for the loss of her services as household manager. (Check the link below 'Show Me the Money' for more on a woman's legal position in marriage.)
The euphemistic name for the offense was Criminal Conversation (Crim Con.)
If a husband had evidence of adultery, he could launch a civil crim con case against the other man. Thus he might vindicate his own honor and destroy his rivals character and finances, all without the unsavory shedding of blood.
Interestingly, the wife was not a party to the suit, the matter was strictly between the men. (Remember the whole being property thing? That.)
Criminal Conversation trialsThe last decade of the 18th century was by far the heyday for the crim con trial. Lord Chief Justice Lloyd Kenyon declared that the country was in the grip of a "crisis of morality"(Fullerton, 2004). Only after the average award settlements dropped in the early 19th century did the number of claims begin to decline. (Wonder if there’s a connection…)
In any case, crim con trials tended to be colorful, highly publicized events at the Court of the King's Bench, in a corner of Westminster Hall. These trials were open to the general public. And for those not fortunate enough to be able to attend in person, most book sellers carried newspaper, pamphlets, transcripts and ‘true’ exposés documenting all the sexual misadventures of high society.
Lawyers on both sides of the case played up the drama as much for the public notoriety as for the effect on the court’s decisions. They called servants, especially young pretty ones, to deliver testimony for both the plaintiff and the defense. While servants could be (mostly) excused for presenting salacious tales in similar language, the barristers were gentlemen and adopted notable euphemistic and flowery language to express the necessary elements with decency and taste. Some said it became something of an art form.
With so much at stake, both in terms of finances and reputations, truth and accuracy fell to the need to convince jurors.
The defendant, if he could not deny that he had seduced the plaintiff's wife, was obliged to present the object of his attentions as a low, debauched, corrupt woman who was worthless to the world let alone her sorry husband. The plaintiff, in order to secure a high payout, had to present his marriage as an unending festival of joyous love and his unfaithful wife as the best and most innocent woman in the world before the wicked seducer got his grubby hands on her. (Wilson, 2007). As a rule, these trials progressed quickly and once damages were assessed, they were enforceable like any other debt.
Damage AwardsIn deciding damages, the jury had several factors to consider. The rank and fortune of the parties helped determine the loss the husband had suffered, effectively setting a cash value of the wife before her seduction. (As if the dowry and marriage settlements didn't do enough of that.) Juries also weighed the length of the marriage and the affair, whether the two men were friends before the seduction, and whether or not said seduction had taken place in the marital bed (an ever greater outrage and offense.) Often, juries wanted to insure that the well-heeled rake was sufficiently punished to deter more of his kind from following in his footsteps.
Juries often awarded only half the damages requested, so indignant gentlemen just increased the amount they asked for, often sums totaling over £15,000. Occasional cases were settled for up to £20,000 but awards of at least £1,500 were far more common.
Ironically, it was not unusual for a married couple to remain married after the conclusion of a crim con case. However, such a case was a preliminary step in divorce proceedings.
Divorce though required an act of Parliament. Seriously.
ReferenceFullerton, Susannah - Jane Austen & Crime JASA Press (2004)
Wilson, Ben - The Making of Victorian Values, Decency & Dissent in Britain: 1789-1837. The Penguin Press (2007)
Find previous installments of this series here:Get Me to the Church on Time: Changing Attitudes toward Marriage
To Have a Courtship, One Needs a Suitor
Nothing is ever that simple: Rules of Courtship
Show me the Money: the Business of Courtship
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