Lucy’s Legal Situation

I think the evidence from the novel shows that, in theory, Lucy might well have been able to bring cases for breach of promise against Edward, had he deserted her.

My researches show also, IMHO that Willoughby knew the law relating to Breach of Promise rather well, (and note, he would have had easy access to the current state of the law as the reports of these cases were not published in obscure law reports but in widely read magazines like The Gentleman’s Magazine and the Town and Country Magazine. He was despicable, IMO, in that he acted with regard to Marianne so that he kept just the right side of the law to afford him protection. It makes his actions regarding her all the more calculating, IMVHO.

Before I get carried away, let me explain a little about the nature of the action for breach of promise.

Marriage in the 18th /early 19th century was a rather serious proposition, in that unlike today it was virtually impossible to divorce. Plus, it was, of course, the only true calling for a woman of any respectability. Making an offer of such a marriage therefore was a very serious thing. A woman was entitled to rely upon such an offer, as it would seriously affect her future. We know from our reading of The Gentleman’s Daughter by Amanda Vickery that even broken engagements by mutual consent, reflected badly on the female who had called off the match. Amanda Vickery also points out that:

“Unquestionably men enjoyed great rhetorical license in the art and mystery of courtship. It was inappropriate for a woman to confess her sentiments until convinced of her suitor’s intentions. Moralists deplored the pretender who tried to secure prior assurances of love before he made his offer- a cynical policy, aimed, it was said, at circumventing the woman’s right to refuse.”
p56.

After the introduction of The Marriage Act of 1753 it was the Common Law Courts and not the Ecclesiastical courts who dealt, in the main with breach of promise suits, which though they existed prior to the 18th century, did not take off as a legal concept until after the case of Jesson v Collins in 1703, in which it was held that:

On a promise of marriage, damages may be recovered on an action at law if either party refuses to marry
But, by the mid-18th century, the Ecclesiastical Courts had tended not to enforce any promise to marry unless it was evidenced in writing, whereas the common law courts were sometimes willing to accept an oral contract evidenced not by words but merely by actions which they could interpret as evidence that an engagement existed. This led to aggrieved plaintiffs (people who brought actions to remedy a wrong) bringing their cases in the common law courts, as they correctly judged that they had more chance of success there.

After the case of Hutton v Mansell (Eng. Rep. 87:928) in 1787 common law judges had a discretion to take into account, when deciding a case, not only the tacit consent of a woman’s lover, but also what we would now term as little more than circumstantial evidence-conversations, the gifts of a lover, his actions, her dependence upon those actions, witnesses who overheard conversations, or viewed the couple as engaged to be married etc., etc. They did not just need written evidence of an offer of marriage. Merely saying “will you marry me?” was sufficient (if the evidence was believed, of course).
Lawrence Stone in his book The Road to Divorce has studied 60 of these late 18th century/early 19th century cases for breach of promise. Interestingly, from that study he concludes that there were three distinct types of plaintiffs in these cases.

The plaintiffs fell into three broad types.

There was the woman who had allowed sexual intercourse to take place after exchanging promises of marriage which were repudiated after she became pregnant.

Second, there was the woman who exchanged promises of marriage in the future with a young man struggling to make his way in the world, and who remained chaste and faithful to him for several years, sometimes as many as six, and then learned that her lover had married someone else, sometimes by his own choice and sometimes under pressure from his parents and friends. The woman had rejected other suitors for many years and now found herself at a disadvantage on the marriage market at a fairly late age, a disadvantage for which she sought monetary compensation.

Third, there was the woman, often a widow of mature age, who had entered into careful negotiations with a man, agreed to marry him, set the day, bought her clothes and wound up her business affairs only to find that the man backed out of the agreement at the very last moment, just before or on the wedding day. She sued for compensation for her hurt feelings and her blighted hopes for a husband
p88.

There were also a small number of male defendants who were the innocent victim of entrapment by scheming females whose sole object in pursuing a relationship was not marriage but suing for damages, when the break took place.
Stone’s assessment of these cases in our period is very interesting because they do not include any plaintiffs / defendants from the lowest or very highest levels of society, but mainly concern the type of people Jane Austen wrote about- the middle classes.

The poor could not afford to go to law, and there is probably none form the highest strata, not because of any higher moral leanings of that class, but because they could afford to buy off any potential plaintiffs, and also bind them to silence in the same manner.

The middle classes were the ones who sought to use this legal remedy; and of course it did have its drawbacks, namely publicity. The cases were reported in publications of the period which were distributed widely over the country, such as the gentleman magazine and Town and Country magazine. This as I am sure one of the main reasons for any prospective plaintiff begin reluctant to pursue a case.

So, having seen that the common law took a fairly broad approach to interpreting the evidence on these types of cases, what damages could the defaulting suitor expect to pay? During our period, the courts took into account, when assessing damages, the relative moral conduct of the two parties and their relative circumstances in life. The reported cases show that as a result the damages tended to be quite modest and the vast majority of the awards for breach of promise suits were between £100-500. (See Bind v Oliver (1798) and Foster v Mellish (1802).

However, exceptionally high damages were awarded against defendants who were rich and had behaved very badly towards their so-called fiancés.

One such defendant , as reported in the Gentleman’s Magazine of 1747 (p293) was a clergyman who had made promises of marriage to a lady which were never fulfilled as a result of which the lady had refused the addresses of another gentleman. (So, thereby, she was disadvantaged on the marriage market: would she ever get another offer?) She was awarded damages by the court.

A pertinent case in relation to S+S is that of Austen (no relation) v. Vereker (1815). Here the defendant was a major, the son and heir of a colonel who was also a nobleman. The plaintiff was merely the daughter of a respectable but relatively minor country gentleman.

The major had courted the girl, and despite being warned off by her father, the pair had carried out a clandestine correspondence, during the course of which he wrote in one letter that

“I was ready to run all risks and marry you”

In the end the pressure put on him by his noble relatives and by her father was too much to bear, and he courted and married a rich woman of his own social class: as a result of this marriage the luxurious life promised him by his father as an inducement to marry was secured. By doing his father’s will and marrying his chosen bride, he would be assured of inheriting a fortune which would bring him £20,000 per annum.

The plaintiff, Miss Austen, however, was left with nothing. Her father had died in the interim leaving her little money. She had no husband, despite thinking she was going to get one, nor did she have any substantial dowry with which she might attract one. As a result, she brought the action against the defendant (for, IMHO, she had very little left to lose).
Her lawyer argued that she had: “seen her happiness sacrificed to the pride of power and the pomp of heraldry.”
The judge told the jury to ignore what was the cause of the defendant’s breach of promise, which was, in effect the threats from his relatives, as it was

Not his fault but her wrong that you are to estimate.

The letter he had written to her was adjudged by the court to be sufficient evidence of his intention to marry her and it corroborated her claim that they had been engaged to marry.

The jury assessed the wronged to be compensated by the quite breathtaking sum of £4000.
Much public comment was made on this case.

So, let’s draw this long post to a close.
IMVHO, Lucy Steele had, had Edward not acted morally and honourably towards her once his secret engagement had become known to his family, a good case against him. The Ferrars family might very well as Barbara said in her post, above:
Seemed to think that all Edward needed to do to break off a bona fide engagement with Lucy was just say he wanted out because the engagement had never been made public.

However, it is my assessment of the situation, that the reason they seemed oblivious to the prospect of being sued was they had the arrogant assurance of a rich family that the engagement could be broken off, and should Lucy create a fuss and threaten to bring an action, she would simply have been brought off by them via their lawyers.

They had sufficient resources to do this, and to also ensure her silence at the same time, probably by paying her off under the terms of an annuity, which would cease on her marriage (if any) or, more importantly, if she spread rumours about her one time engagement with Edward.

Edward of course tried to let her down gently, giving her the option to withdraw: but she would not be dissuaded…until rich Robert Ferrars appeared, of course.

Now for Willougby. We do know, that although he and Marianne had acted as an engaged couple- visiting Mrs. Smith’s home, corresponding, exchanging love tokens etc. etc. that Willoughy had very carefully never mentioned an engagement to her either in words or in writing.

And as he says in his confession to Elinor in chapter 44, that just before he was to propose marriage to Marianne, his affair with Eliza became known to Mrs. Smith and he as summarily ordered to marry the girl. He refused, realised his future lay before him as a poverty struck man, and resolved then to marry Miss Grey with all her lovely money, and with whom he had previously had some form of relationship:

“She taxed me with the offence, at once, and my confusion may be guessed. The purity of her life, the formality of her notions, her ignorance of the world — everything was against me. The matter itself I could not deny, and vain was every endeavour to soften it. She was previously disposed, I believe, to doubt the morality of my conduct in general, and was moreover discontented with the very little attention, the very little portion of my time that I had bestowed on her, in my present visit. In short, it ended in a total breach. By one measure I might have saved myself. In the height of her morality, good woman! She offered to forgive the past if I would marry Eliza. That could not be — and I was formally dismissed from her favour and her house. The night following this affair — I was to go the next morning — was spent by me in deliberating on what my future conduct should be. The struggle was great — but it ended too soon. My affection for Marianne, my thorough conviction of her attachment to me — it was all insufficient to outweigh that dread of poverty, or get the better of those false ideas of the necessity of riches, which I was naturally inclined to feel, and expensive society had increased. I had reason to believe myself secure of my present wife, if I chose to address her, and I persuaded myself to think that nothing else in common prudence remained for me to do. An heavy scene however awaited me, before I could leave Devonshire; I was engaged to dine with you on that very day, some apology was therefore necessary for my breaking the engagement. But whether I should write this apology, or deliver it in person, was a point of long debate. To see Marianne, I felt would be dreadful, and I even doubted whether I could see her again, and keep to my resolution. In that point, however, I undervalued my own magnanimity, as the event declared; for I went, I saw her, and saw her miserable, and left her miserable — and left her, hoping never to see her again.”

It seems to me that, in the light of the cases I have quote above, Willoughby skated very close to the wind and the law, but carefully, nay calculatingly, always kept on the right side of it.

I can, I think, accuse him of being very clever, for, by not declaring his intention to Marianne in words, though his conduct and hers persuaded others that they were engaged, he might have avoided an action for breach of promise, his defense being that though he had been imprudent in his actions (as had Marianne) no promise, mention or even a whiff of the word marriage had been made by him at any time to her.

So yes, in conclusion there was honour at stake in both cases, but there was also in the Ferrars family situation vis-a-vis Lucy a lot of money to be lost if Lucy had brought a legal case against them.

Once again I take my figurative hat off to JA and her command of the workings of the law.

And Willoughby goes to the top of my list of JA Baddies, for being just cautious enough in his behaviour with Marianne: a caution that stemmed, IMVHO, from a well developed self preservation instinct and a knowledge of the law relating to Breach of Promise Suits.

Barbara follows the above post:

I wanted to quote this other little bit of a speech by Willoughby in the same chapter that shows, as you say, that he was well aware of what he was doing and had been very calculating about the whole thing–well aware of exactly what was, and more importantly was NOT being said:

I felt my intentions were strictly honourable, and my feelings blameless. Even then, however, when fully determined on paying my addresses to her, I allowed myself most improperly to put off, from day to day, the moment of doing it, from an unwillingness to enter into an engagement while my circumstances were so greatly embarrassed. I will not reason here — nor will I stop for you to expatiate on the absurdity, and the worse than absurdity, of scrupling to engage my faith where my honour was already bound. The event has proved, that I was a cunning fool, providing with great circumspection for a possible opportunity of making myself contemptible and wretched forever.

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