Creating the Family: The Law of Courtship and Marriage

The Breach-of-Promise Suit

Courtship was traditionally a stage of bargaining about the economic terms of a marriage rather than an interlude in which the two parties tested their affection for and compatibility with one another. English law treated marriage as a property transaction in which the bride represented a property asset whose disposition, especially among the wealthier classes, often entailed arduous bargaining between the father-in- law and the suitor. With marriages thus arranged, the future husband and wife did not, in the modern sense, fall in love.

In the postrevolutionary republican legal order, the breach-of-promise suit came to reflect the new assumptions that accompanied the companionate marriage. A suitor who spurned a woman faced an action that combined elements of both contract and tort. These suits were invariably brought against men who then had to calculate not just the direct economic costs to be borne by breaking the agreement but also other more open-ended costs that could be imposed, under tortlike doctrines, for acting deceitfully in depriving a woman of her opportunity to be a mother and wife. The breach-of- promise suit was the principal means by which private parties policed courtship, although its importance declined through the course of the nineteenth century, eventually falling into social and legal disrepute.

The leading early nineteenth-century case on breach of promise was Wightman v. Coates ( 1818), decided by the Supreme Judicial Court of Massachusetts. After a long engagement, Maria Wightman charged Joshua Coates with refusing to consummate his

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marriage promise. Coates denied that he had ever asked her to marry, although Maria produced love letters that suggested otherwise. Chief Justice Isaac Parker's opinion for the court conceded that previously such suits had turned on matters of finance. Parker deemphasized the financial aspects of courtship and stressed instead the loss of emotional well-being that an unanticipated end of courtship brought when a promise of marriage had been made. Parker tipped the scales of judicial scrutiny in favor of women. "A deserted female," he wrote, "whose prospects in life may be materially affected by the treachery of the man to whom she had plighted her vows, will always receive from the jury the attention which her situation requires; and it is not disreputable for one, who may have to mourn for years over lost prospects and broken vows, to seek such compensation, as the law can give her."⁶

Breach-of-promise suits were actions brought by women and were premised on an understanding that women needed to marry and to become mothers in order to fulfill their social responsibilities. Judges held out to women through breach-of-promise actions not equality but special treatment based on women's peculiar condition. Males incurred greater liability for their actions because their social position and their innate qualities made them superior to women. Appellate judges, for example, accepted circumstantial proof of a breach, even though similar evidence in economic and criminal cases involving only male parties would have been rejected. In the context of courtship, the "will theory of contract" was less binding on women than men, because women were of such a disposition that they could be taken advantage of and hence required the protection of the state. The end of traditional patriarchy only meant that a new judicial patriarchy grew to replace it.

Male youthfulness and the bride's unfitness for matrimony and motherhood were the only major impediments to female-initiated breach-of-promise suits. Judges indulged the youthful experimentation of males, usually refusing to hold males under the age of twenty-one to promises of marriage that they made and then broke. Males could also escape the consequences of their promises by showing that they had been misled about their fiancée's moral or physical fitness. A women who brought a breach-of- promise suit usually did so with the full knowledge that her previous sexual conduct might become a matter of public record. But judges also applied a strict standard of proof of female sexual indiscretion, recognizing that false allegations would destroy a woman's reputation unfairly.

Although courts extended special protection to women, they also expected that women would exercise sound judgment. Chief Justice John Bannister Gibson of the Pennsylvania Supreme Court, for example, held that a woman who had been seduced and impregnated under a false promise of marriage could not collect any greater award as a result. "Every girl who is silly enough to surrender her citadel of virtue to her lover," Gibson proclaimed, "must not [forget] that professions are not promises."⁷

Tort principles also guided the U.S. law of courtship, enabling jilted and defiled women to strike back against seducers. Contract principles limited the plaintiff's damages to the value of the immediate loss, but in the case of virtue such damages were difficult to calculate under contract theory and, in any case, the loss was literally beyond repair. The punitive and exemplary damages (those that applied to punish the seducer and to warn off others by the magnitude of the damages) available in tort created more open-ended costs for seducers. Yet courts were slow to accept these principles, and in the first half of the century most jurisdictions clung to the old

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common law rule that women who had been seduced could not bring suit. Only a father or guardian, who had ostensibly suffered a property loss, could do so.

By midcentury, state appellate courts had begun to reconsider seduction. Victorian Americans stressed the passionless nature of women, and some authorities even argued that women were incapable of experiencing sexual sensation. They were merely empty vessels waiting to be filled by their husbands with the germ of a new generation. Seduced women were innocent victims of the lust and deceit of men. The Victorian view of female nature and the character of seduction prompted judges to recognize that women possessed distinct rights that required redress. The judiciary shifted fault to men, permitting women to seek remedies against them as a matter of both right and the maintenance of a truly companionate marriage.

The same Victorian principles that made seduction easier for women to prove also made it socially riskier for them to pursue in court. Social reformers, for example, charged that the women who filed these suits were mercenaries who lured men into relations and then turned on them for financial gain. Although precedent affirmed that statements made by a would-be bride to her friends could be entered as evidence to show the intent of the suitor, the Michigan Supreme Court, in the leading case of McPherson v. Ryan ( 1886), rejected that doctrine. The old rule, the judges held, placed "almost every man at the mercy of an evilly disposed and designing woman." ⁸ Further, as the circle of economic opportunity for women widened ever so slightly at the beginning of the twentieth century, the loss of a suitor was less damaging than it had been a hundred years before.

The state appellate judiciary policed nineteenth-century courtship, although its control diminished as the breach-of-promise suit appeared as a legally sanctioned form of blackmail. Women had carved out just enough of a niche in the expanding industrial marketplace that they could literally afford to abandon the suit. The decline of the breach-of-promise suit was evidence of the waning significance generally of contractualism in the late-nineteenth-century law of domestic relations.

Date: 2015-01-29; view: 783