Breach of Promise

[mightymads]

“It may be so, or it may not, Mr. Holmes,” said he, “but if you are so very sharp you ought to be sharp enough to know that it is you who are breaking the law now, and not me. I have done nothing actionable from the first, but as long as you keep that door locked you lay yourself open to an action for assault and illegal constraint.”

“The law cannot, as you say, touch you,” said Holmes, unlocking and throwing open the door, “yet there never was a man who deserved punishment more.”

—A Case of Identity

Actually, legal action could be taken against Mr. Windibank, and Holmes, who had “a good practical knowledge of British law”, must have been aware of that, since suing for Breach of Promise was quite a common practice in the 19th century.

From at least the Middle Ages until the early 20th century, a man's promise of engagement to marry a woman was considered, in many jurisdictions, a legally binding contract. If the man were to subsequently change his mind, he would be said to be in "breach" of this promise and subject to litigation for damages. (Wikipedia)

By the turn of the late Nineteenth Century, Breach of Promise of Marriage was firmly established in English jurisprudence - and that of many other countries around the World, including America. In the latter half of that century alone there were, in Britain, approximately one thousand breach of promise actions that ended with a trial in court - with judgement and damages awarded by a jury - and many more that were settled without recourse to the law courts. Damages, whether awarded by the courts or determined by mutual agreement, were intended to compensate the injured party for the loss of benefit, financial and otherwise, that would have accrued from the marriage, and sometimes amounted to quite considerable sums. (Source)

I found an article with several examples of such cases during the 19th century. The following one is the most similar to Mary Sutherland’s situation, since the man who deceived her was already married:

ALICE MAVRO – 1900
Alice Mavro managed the restaurant at the Hoop And Toy Hotel in South Kensington. An attractive 25-year-old widow she caught the eye of wealthy diner Augustus Craven, heir to an estate worth £22,000 (£2.3million).

Omitting to tell her he was already married Craven tricked her into becoming his mistress. When his wife died he proposed but repeatedly put off the wedding.

After giving birth to their son, Alice remonstrated with her fiancé about condemning his child to the stigma of illegitimacy. Craven then admitted that he had no intention of marrying her and was on the look-out for a rich wife.

Alice won her claim for breach of promise and the jury, shocked by Craven’s callousness, awarded her exceptionally large damages of £4,000 (£417,000). This reflected the jury’s view that a wealthy man should give his illegitimate child a reasonable standard of living. (Source)

So Mary Sutherland could do exactly that. There were letters where her engagement to Hosmer Angel was most likely mentioned. Moreover, there were eyewitnesses of her being abandoned in the church. Holmes could prove that Hosmer Angel and James Windibank were in fact one and the same person. That was the work Holmes had been hired to do, after all. And if Holmes, due to his prejudice against women was reluctant to tell Miss Sutherland the truth, Watson could put his foot down, being as righteous as he was. Because first and foremost, informing the client of his findings irrespective of his own personal views was Holmes’s duty as a professional.

Comments

[mightymads]

Perhaps IDEN is an example of ACD’s occasional misogyny. He’s a complex fellow: as you said, in some ways he championed women by writing of difficult situations they can face being in employment and/or abusive relationships, but on the other he often was condescending.

Thinking inside the Canon, I like to imagine that Watson did put his foot down and helped Miss Sutherland to get even with Windibank. Being modest, he didn’t mention it in the story and left the narrative at the point where Holmes expressed his prejudiced attitude (which changed in time).

[mightymads]

Very interesting! Perhaps Holmes already had an experience with such a person who preferred to close her eyes on the truth rather than accept it and hence his conviction that all women are of a kind. Anyways, it was his duty present those facts, whether she chose to believe them or not. Watson could remind him of that. And they could have a wager—not on money but on the moral principle alone. tldr I’d like to write that story one day ;)

[mightymads]

It’s on my to-write list and I don’t know how soon it will be, but I’ll let you know if it happens :)

[scfrankles]

Actually, legal action could be taken against Mr. Windibank, and Holmes, who had “a good practical knowledge of British law”, must have been aware of that, since suing for Breach of Promise was quite a common practice in the 19th century.

Sanguinity brought up this very point a while ago, over on the Sherlock60 comm. And my theory then was that there may have been a legal obstacle to suing Windibank for breach of promise, because he was Miss Sutherland's stepfather.

I found an article with several examples of such cases during the 19th century. The following one is the most similar to Mary Sutherland’s situation, since the man who deceived her was already married...

I believe the law at the time said that if a woman knew a man was married but had been promised marriage after his wife's death, she couldn't sue for breach of promise if he went back on that promise. But if the man had passed himself off as single, she could sue. And this does at first seem to be the situation Miss Sutherland was subjected to.

However, at the time, in no circumstances could a stepfather and stepdaughter legally marry. I mean, even if Miss Sutherland's mother had died, Miss Sutherland and Windibank couldn't marry because it would be considered to be an incestuous marriage. It's such a bizarre and unique situation and I don't think the law would be clear cut, but I suspect a judge would say that he had every sympathy for Miss Sutherland but she simply couldn't sue her own stepfather for breach of promise because a marriage between them would always be legally impossible.

A clever lawyer might have been able to argue against that though. A married man pretending to be single could be sued as though he really were a single man available for marriage, and if Windibank had truly been a single man... Then he wouldn't have been Miss Sutherland's stepfather in the first place. You can see the full thread between Sanguinity and myself here.

[mightymads]

Thank you! I read it! But the marriage was indeed arranged in IDEN. He left her in the church. Maybe if they found a good lawyer they could win the case against Windibank. He didn't propose as himself—Mary's stepfather—but as a person which did not exist. Perhaps it would be a difficult and unique point, but I rather doubt that the whole thing was unactionable. They could at least try.

In the case which I included as an example, the woman didn't know the man was married. He had deceived her intentionally. She won the case with considerable compensation. In other cases which were in the article, judges were quite sympathetic with ladies. On the other hand, when men sued women for the breach of promise, judges did everything so that such men received only nominal compensation like one penny.