Gay Lotharios and Innocent Eves: Child Maintenance, Masculinities and the Action for Breach of Promise of Marriage in Colonial Australia
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Published: December 21, 2018
Abstract
This article will focus upon the action for breach of promise of marriage in colonial Australia to reflect more broadly on the legal regulation of intimacy. Drawing upon a database of 211 breach of promise cases, I seek to explain a contradiction: almost half of the female plaintiffs in my study had illegitimate children, although a lack of virtue operated as a complete defence for (predominantly) male defendants. In spite of this, a vast majority of the women were successful. This paradox is clarified through an examination of the action in contract treatises and through an analysis of the way that the action operated as a supplement to maintenance for women with children. I conclude with a close study of a breach of promise case involving illegitimacy, as a means of examining the informal and formal norms governing love (and its discontents) in colonial Australia
References
1 Mark Twain, The Wayward Tourist: Mark Twain’s Adventures in Australia (Melbourne University Press, 2006) 61.
2 ‘Civil Side’, Newcastle Morning Herald and Miners’ Advocate (Newcastle) 16 April 1890, 7; ‘The Big Sweep Winner’, Singleton Argus (New South Wales), 11 December 1889, 4; ‘Law Report’ Sydney Morning Herald (Sydney), 29 April 1890, 4; ‘Maitland Circuit Court’ Maitland Mercury and Hunter River General Advertiser (New South Wales), 17 April 1890, 3.
3 Stewart v Duggan [1890] NSWSupC 3 (Foster J); see Stewart v Duggan, ‘Index to Judgment Books: Civil Jurisdiction’, State Records Office NSW, 9/917 (1890); ‘Judgment Papers’ Container 20/11055 (second term) No 143; Notebooks: Civil Causes (Chief Justice Forster) 1886-1906 (2/2851). The judgment papers for this case are particularly voluminous, containing the love letters that Stewart wrote to Duggan, her train ticket to Sydney and a typed transcript of the trial. The notebook, however, contained nothing on the case.
4 Ginger Frost, ‘I Shall Not Sit Down and Crie: Women, Class and Breach of Promise of Marriage Plaintiffs in England, 1850-1900’ (1994) 6(2) Gender and History 225.
5 Saskia Lettmaier, Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal 1800-1940 (Oxford University Press, 2010) 73-78.
6 Rosemary Coombe, ‘The Most Disgusting, Disgraceful and Iniquitous Proceeding in Our Law: The Action for Breach of Promise of Marriage in Nineteenth-Century Ontario’ (1988) 38(1) University of Toronto Law Journal 65, 65-69.
7 Kirsten McKenzie, Scandal in the Colonies (Melbourne University Press, 2004) 105.
8 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth Century Canada (Women’s Press, 1991) 86.
9 Christina Twomey, Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare (Australian Scholarly Press, 2002); Anne O’Brien, Poverty’s Prison: The Poor in New South Wales 1880-1918 (Melbourne University Press, 1988); Susan Tiffin, In Whose Best Interest? Child Welfare Reform in the Progressive Era (Greenwood Press, 1982); Shurlee Swain, Single Mothers and their Children: Disposal, Punishment and Survival in Australia (Cambridge University Press, 1995).
10 Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen and Unwin, 1995) 51.
11 See Machon v Holt cited in Selden’s Society Year Books of Henry VI, A.D. 1422 (CH Williams, 1933) 26.
12 See Brian Dickey, No Charity There: A Short History of Social Welfare in Australia (Allen and Unwin, 1987) 1-23; and for a South Australian perspective, Brian Dickey, Rations, Residence, Resources: A History of Social Welfare in South Australia Since 1836 (Wakefield Press, 1986).
13 Michael Bryan, ‘The Modern History of Law Reporting’ (University of Melbourne Collections, 2012) 11. By ‘legal significance’ the author means that the case has developed or contributed to legal doctrine in some way.
14 I am indebted to Saskia Lettmaier for this research. See Lettmaier, above n 5, 19-24.
15 Samuel Comyn, A Treatise of the Law Relative to Contracts and Agreements Not Under Seal: with Cases and Decisions Thereon in the Action of Assumpsit, Volume 2 (A Strahan, 1807) 408.
16 Joseph Chitty, A Practical Treatise on the Law of Contracts Not Under Seal, and Upon the Usual Defences to the Actions Thereon (G and C Merriam, 1826) 158.
17 Ibid, 587.
18 Wightman v Coates (1818) 15 Mass 4, Parker CJ; Chitty, above n 16, 585.
19 Chitty, above n 16, 159.
20 Joseph Chitty, A Practical Treatise on the Law of Contracts Not Under Seal: and Upon the Usual Defences to Actions Thereon with Corrections and Additional References by a Member of the Massachusetts (H Sweet, 1834) 428.
21 Joseph Chitty, A Treatise on the Law of Contracts, and Upon the Defences to Actions Thereon (H Sweet, 1863) 491.
22 Ibid, 490.
23 Breach of promise of marriage formed one of the exceptions to the reform of laws stipulating imprisonment for debt in the 19th century, which sparked much debate. See, for example, ‘The Satirist’, Sydney Gazette and New South Wales Advertiser, 27 June 1837, 2; ‘Anomalies of the New Bankruptcy Act’, South Australian Advertiser, 26 May 1864, 3.
24 Heals v Mellersh (1842) WASC, WH Mackie (Esq), cited in Perth Gazette and Western Australian Journal, Saturday 16 April 1842, 2-3.
25 Lettmaier, above n 5, 28.
26 Keller v Kimmins (1887) QLDSC. In this case Keller successfully sued Kimmins for 500 pounds and upon being unable to pay it, Kimmins was sent to Brisbane Gaol. After languishing in prison for 15 months, a public campaign developed urging his release which finally came through a petition to the Governor. See Maryborough Chronicle, Wide Bay and Burnett Advertiser (Queensland), 28 December 1888, 2.
27 See, for example, ‘How to Quantify Pain and Suffering’, West Australian, 19 May 1892, 2 and ‘Women’s Rights’, Australian Town and Country Journal, 14 October 1893, 34.
28 Waterhouse MP, The Parliament, Legislative Council, 3 September 1861 cited in South Australian Register, 4 September 1861, 2.
29 Beth Wright, Colonial Censuses and Musters (17 April 2013) Australian Bureau of Statistics,.
30 Shaunnagh Dorsett, ‘How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand’ (2014) 14 New Zealand Journal of Public and International Law 103.
31 Penny Russell, A Wish of Distinction: Colonial Gentility and Femininity (Melbourne University Press, 1994); McKenzie, above n 7.
32 William Blackstone, Commentaries on the Laws of England: in Four Books, Volume 4 (A Strahan, 15th ed, 1809) 156.
33 Ibid, 199.
34 See Karen Lystra, Searching the Heart: Women, Men, and Romantic Love in Nineteenth-Century America (Oxford University Press, 1989).
35 See, for example, ‘The Profession of Matrimony’, Kapunda Herald (South Australia), 5 February 1892, 4.
36 Frost, above n 4, 225.
37 Clifford v Connolly (1868) QLDSC, cited in Rockhampton Bulletin and Central Queensland Advertiser, 12 May, 1868.
38 Geach v Jones (1883) Adelaide Local Court, cited in Burra Record, 14 September 1883, 3.
39 Cornick v Kinsella (1891) QLDSC, cited in Morning Bulletin, 14 November 1891, 5.
40 Grogan v Hemmings (1868) NSWSC, cited in Maitland Mercury and Hunter River General Advertiser, 1 December 1866, 3.
41 Compton v Tyer (1896) NSWSC, cited in Dubbo Liberal and Macquarie Advocate, 18 April 1896, 3.
42 Coote v Tynan (1868) Adelaide Local Court, Mr Lowe, see Southern Argus (Strathalbyn), 24 October 1868, 2-3.
43 Anthony Dickey, Family Law (Lawbook Co, 4th ed, 2002) 463.
44 Ibid, 463. For commentary on the United Kingdom’s liable relative procedures see: Stephen Parker, ‘Rights and Utility in Anglo-Australian Family Law’ (1992) 55 Modern Law Review 311, 327.
45 Dickey, 1987, above n 12, 1-23.
46 Ibid, 18-19.
47 Chitty, above n 16.
48 Swain, above n 9, 154.
49 Police Act 1869 (SA) s 63. This was modelled on the English Fugitive Offenders Act (c 69, 44 and 45 Vic).
50 Mitchelmore v Jackson cited in ‘Second and Final Report of Commission Appointed to Report on the Destitute Act’, Adelaide, E Spiller Government Printer, 1885.
51 Ibid.
52 Ibid.
53 Swain, above n 9, 164.
54 Ibid, 165.
55 Titley v Moltine (1875) VICSC, per Barry J. See Argus (Melbourne), 30 October 1875
56 Deborah Cohen, Family Secrets: Living With Shame from the Victorians to the Present Day (Penguin, 2013).
57 Stewart v Duggan (1899) NSWSC, cited in above n 3, Foster J. See also, Newcastle Morning Herald and Miners’ Advocate (Newcastle) 16 April 1890, 7.
58 Field v Nelson (1850) NSWSC, cited in Freeman’s Journal Sydney (Sydney), Dickinson J, 4 July 1850, 5.
59 Fletcher v Headlam (1883) TASSC, cited in Geelong Advertiser (Geelong), 5 April 1883, 3.
60 Maryborough Chronicle, Wide Bay and Burnett Advertiser (Queensland), 14 May 1870, 4.
61 See, for example, the case of Simpson v Offer (1870) Tas Police Court, cited in Launceston Examiner, 24 May 1870, 5. This was a case for maintenance where it was stated that the ‘Defendant paid her some money for breach of promise of marriage upon which she had been living’.
2 ‘Civil Side’, Newcastle Morning Herald and Miners’ Advocate (Newcastle) 16 April 1890, 7; ‘The Big Sweep Winner’, Singleton Argus (New South Wales), 11 December 1889, 4; ‘Law Report’ Sydney Morning Herald (Sydney), 29 April 1890, 4; ‘Maitland Circuit Court’ Maitland Mercury and Hunter River General Advertiser (New South Wales), 17 April 1890, 3.
3 Stewart v Duggan [1890] NSWSupC 3 (Foster J); see Stewart v Duggan, ‘Index to Judgment Books: Civil Jurisdiction’, State Records Office NSW, 9/917 (1890); ‘Judgment Papers’ Container 20/11055 (second term) No 143; Notebooks: Civil Causes (Chief Justice Forster) 1886-1906 (2/2851). The judgment papers for this case are particularly voluminous, containing the love letters that Stewart wrote to Duggan, her train ticket to Sydney and a typed transcript of the trial. The notebook, however, contained nothing on the case.
4 Ginger Frost, ‘I Shall Not Sit Down and Crie: Women, Class and Breach of Promise of Marriage Plaintiffs in England, 1850-1900’ (1994) 6(2) Gender and History 225.
5 Saskia Lettmaier, Broken Engagements: The Action for Breach of Promise of Marriage and the Feminine Ideal 1800-1940 (Oxford University Press, 2010) 73-78.
6 Rosemary Coombe, ‘The Most Disgusting, Disgraceful and Iniquitous Proceeding in Our Law: The Action for Breach of Promise of Marriage in Nineteenth-Century Ontario’ (1988) 38(1) University of Toronto Law Journal 65, 65-69.
7 Kirsten McKenzie, Scandal in the Colonies (Melbourne University Press, 2004) 105.
8 Constance Backhouse, Petticoats and Prejudice: Women and Law in Nineteenth Century Canada (Women’s Press, 1991) 86.
9 Christina Twomey, Deserted and Destitute: Motherhood, Wife Desertion and Colonial Welfare (Australian Scholarly Press, 2002); Anne O’Brien, Poverty’s Prison: The Poor in New South Wales 1880-1918 (Melbourne University Press, 1988); Susan Tiffin, In Whose Best Interest? Child Welfare Reform in the Progressive Era (Greenwood Press, 1982); Shurlee Swain, Single Mothers and their Children: Disposal, Punishment and Survival in Australia (Cambridge University Press, 1995).
10 Bruce Kercher, An Unruly Child: A History of Law in Australia (Allen and Unwin, 1995) 51.
11 See Machon v Holt cited in Selden’s Society Year Books of Henry VI, A.D. 1422 (CH Williams, 1933) 26.
12 See Brian Dickey, No Charity There: A Short History of Social Welfare in Australia (Allen and Unwin, 1987) 1-23; and for a South Australian perspective, Brian Dickey, Rations, Residence, Resources: A History of Social Welfare in South Australia Since 1836 (Wakefield Press, 1986).
13 Michael Bryan, ‘The Modern History of Law Reporting’ (University of Melbourne Collections, 2012) 11. By ‘legal significance’ the author means that the case has developed or contributed to legal doctrine in some way.
14 I am indebted to Saskia Lettmaier for this research. See Lettmaier, above n 5, 19-24.
15 Samuel Comyn, A Treatise of the Law Relative to Contracts and Agreements Not Under Seal: with Cases and Decisions Thereon in the Action of Assumpsit, Volume 2 (A Strahan, 1807) 408.
16 Joseph Chitty, A Practical Treatise on the Law of Contracts Not Under Seal, and Upon the Usual Defences to the Actions Thereon (G and C Merriam, 1826) 158.
17 Ibid, 587.
18 Wightman v Coates (1818) 15 Mass 4, Parker CJ; Chitty, above n 16, 585.
19 Chitty, above n 16, 159.
20 Joseph Chitty, A Practical Treatise on the Law of Contracts Not Under Seal: and Upon the Usual Defences to Actions Thereon with Corrections and Additional References by a Member of the Massachusetts (H Sweet, 1834) 428.
21 Joseph Chitty, A Treatise on the Law of Contracts, and Upon the Defences to Actions Thereon (H Sweet, 1863) 491.
22 Ibid, 490.
23 Breach of promise of marriage formed one of the exceptions to the reform of laws stipulating imprisonment for debt in the 19th century, which sparked much debate. See, for example, ‘The Satirist’, Sydney Gazette and New South Wales Advertiser, 27 June 1837, 2; ‘Anomalies of the New Bankruptcy Act’, South Australian Advertiser, 26 May 1864, 3.
24 Heals v Mellersh (1842) WASC, WH Mackie (Esq), cited in Perth Gazette and Western Australian Journal, Saturday 16 April 1842, 2-3.
25 Lettmaier, above n 5, 28.
26 Keller v Kimmins (1887) QLDSC. In this case Keller successfully sued Kimmins for 500 pounds and upon being unable to pay it, Kimmins was sent to Brisbane Gaol. After languishing in prison for 15 months, a public campaign developed urging his release which finally came through a petition to the Governor. See Maryborough Chronicle, Wide Bay and Burnett Advertiser (Queensland), 28 December 1888, 2.
27 See, for example, ‘How to Quantify Pain and Suffering’, West Australian, 19 May 1892, 2 and ‘Women’s Rights’, Australian Town and Country Journal, 14 October 1893, 34.
28 Waterhouse MP, The Parliament, Legislative Council, 3 September 1861 cited in South Australian Register, 4 September 1861, 2.
29 Beth Wright, Colonial Censuses and Musters (17 April 2013) Australian Bureau of Statistics,
30 Shaunnagh Dorsett, ‘How Do Things Get Started? Legal Transplants and Domestication: An Example from Colonial New Zealand’ (2014) 14 New Zealand Journal of Public and International Law 103.
31 Penny Russell, A Wish of Distinction: Colonial Gentility and Femininity (Melbourne University Press, 1994); McKenzie, above n 7.
32 William Blackstone, Commentaries on the Laws of England: in Four Books, Volume 4 (A Strahan, 15th ed, 1809) 156.
33 Ibid, 199.
34 See Karen Lystra, Searching the Heart: Women, Men, and Romantic Love in Nineteenth-Century America (Oxford University Press, 1989).
35 See, for example, ‘The Profession of Matrimony’, Kapunda Herald (South Australia), 5 February 1892, 4.
36 Frost, above n 4, 225.
37 Clifford v Connolly (1868) QLDSC, cited in Rockhampton Bulletin and Central Queensland Advertiser, 12 May, 1868.
38 Geach v Jones (1883) Adelaide Local Court, cited in Burra Record, 14 September 1883, 3.
39 Cornick v Kinsella (1891) QLDSC, cited in Morning Bulletin, 14 November 1891, 5.
40 Grogan v Hemmings (1868) NSWSC, cited in Maitland Mercury and Hunter River General Advertiser, 1 December 1866, 3.
41 Compton v Tyer (1896) NSWSC, cited in Dubbo Liberal and Macquarie Advocate, 18 April 1896, 3.
42 Coote v Tynan (1868) Adelaide Local Court, Mr Lowe, see Southern Argus (Strathalbyn), 24 October 1868, 2-3.
43 Anthony Dickey, Family Law (Lawbook Co, 4th ed, 2002) 463.
44 Ibid, 463. For commentary on the United Kingdom’s liable relative procedures see: Stephen Parker, ‘Rights and Utility in Anglo-Australian Family Law’ (1992) 55 Modern Law Review 311, 327.
45 Dickey, 1987, above n 12, 1-23.
46 Ibid, 18-19.
47 Chitty, above n 16.
48 Swain, above n 9, 154.
49 Police Act 1869 (SA) s 63. This was modelled on the English Fugitive Offenders Act (c 69, 44 and 45 Vic).
50 Mitchelmore v Jackson cited in ‘Second and Final Report of Commission Appointed to Report on the Destitute Act’, Adelaide, E Spiller Government Printer, 1885.
51 Ibid.
52 Ibid.
53 Swain, above n 9, 164.
54 Ibid, 165.
55 Titley v Moltine (1875) VICSC, per Barry J. See Argus (Melbourne), 30 October 1875
56 Deborah Cohen, Family Secrets: Living With Shame from the Victorians to the Present Day (Penguin, 2013).
57 Stewart v Duggan (1899) NSWSC, cited in above n 3, Foster J. See also, Newcastle Morning Herald and Miners’ Advocate (Newcastle) 16 April 1890, 7.
58 Field v Nelson (1850) NSWSC, cited in Freeman’s Journal Sydney (Sydney), Dickinson J, 4 July 1850, 5.
59 Fletcher v Headlam (1883) TASSC, cited in Geelong Advertiser (Geelong), 5 April 1883, 3.
60 Maryborough Chronicle, Wide Bay and Burnett Advertiser (Queensland), 14 May 1870, 4.
61 See, for example, the case of Simpson v Offer (1870) Tas Police Court, cited in Launceston Examiner, 24 May 1870, 5. This was a case for maintenance where it was stated that the ‘Defendant paid her some money for breach of promise of marriage upon which she had been living’.
How to Cite
1.
Simmonds A. Gay Lotharios and Innocent Eves: Child Maintenance, Masculinities and the Action for Breach of Promise of Marriage in Colonial Australia. LiC [Internet]. 2018Dec.21 [cited 2023Oct.1];34(1). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/48