William Schwenck Gilbert was a barrister by profession, and
legal themes or incidents found their way into many of the libretti
which he wrote for his collaborative works with Sir Arthur Sullivan.
Some of the better-known examples are the song "When
I was a lad I served a term / As office boy to an attorney’s
firm" in H.M.S. Pinafore; "When I went to the
Bar as a very young man" in Iolanthe, and "All
is prepared to sealing and for signing" in The Sorcerer.
"Some seven men form an association", in the rarely-performed
Gilbert & Sullivan operetta Utopia Limited, is often quoted
by legal writers as evidence that corporate fraud was as common
100 years ago as it is today. But Trial by Jury, more
than any G & S work, demonstrates Gilbert’s knowledge of
the legal system, as well as his willingness to poke fun at
Trial by Jury is set in the Court of the Exchequer, which
was one of the three great common law courts which existed in
England until 1875 - the others being the King’s (or Queen’s)
Bench and the Court of Common Pleas. Gilbert alludes to
these courts in Iolanthe, where the Lord Chancellor asserts
that he would never:
... assume that the witnesses summoned in force
Exchequer, Queen’s Bench, Common Pleas or Divorce,
perjured themselves as a matter of course ... .
At the time when Trial by Jury was first performed,
in 1875, the structure of the English court system was in the
course of being radically remodelled, and the ancient common
law courts were merged into a single new "High Court of
Judicature" that very year. So, even as Trial
by Jury went on stage for the first time, references to
the Court of the Exchequer were something of an anachronism.
The Court of the Exchequer had a very different history from
the other English courts. It evolved in the Twelfth Century,
originally (as its name suggests) as the court concerned with
tax and revenue matters, deciding cases between the Crown and
taxpayers. By the Fourteenth Century it had acquired a
jurisdiction to deal with ordinary civil claims between one
subject and another. This was achieved through the use
of a legal fiction known as quominus, by which a citizen
could make a claim against another citizen on the ground that
the plaintiff was owed money by the defendant, and the defendant’s
failure to pay the debt meant that the plaintiff was unable
to pay taxes which he owed to the Crown. This remained
the basis of the Exchequer’s jurisdiction in non-revenue cases
until the Nineteenth Century.
Most civil claims in the Exchequer were tried by a jury which,
in 1875, consisted entirely of men. This gave Gilbert
the dramatic opportunity of pitting a male chorus of jurors
against a female chorus of bridesmaids. The presiding
judge’s rulings on questions of law could be appealed to the
Court sitting in banc - that is, a Full Bench. Hence Gilbert’s
tribute to the Judge, which Sullivan set in the style of Handel,
comprising the lines:
Unlike judges of the King’s Bench and Common Pleas, judicial
officers in the Exchequer were known as "Baron" rather
than "Justice", and the chief judge of the Exchequer
was called the "Chief Baron" rather than the "Chief
Justice". There were also subtle procedural and technical
differences between the three major common law courts, which
meant that the Exchequer was more efficient than other courts
for recovering debts and monetary damages. This, no doubt,
is why Gilbert considered that the Exchequer Court was the appropriate
venue in an action for damages for "breach of promise of
Such actions were not uncommon in the Nineteenth Century.
A promise to marry was regarded, in law, as a form of
contract, and the breach of such a promise was regarded as a
breach of contract. So the technical rules of contract
law applied to such a case.
Although the promise did not have to be in writing, the plaintiff
had to give some "consideration" - that is, something
of value in exchange for the promise. But, until the passing
of the Married Women’s Property Act in 1882, the whole
of a woman’s property passed to her husband on marriage, so
a woman who accepted a marriage proposal was effectively promising
to give all of her property to her husband. Thus, there
was always sufficient "consideration" for a woman
who had accepted a marriage proposal to sue the man who had
proposed to her, with the result that such claims were more
often brought by women than by men.
However, whilst the ordinary rules of contract law applied
to actions for breach of promise of marriage, there were some
specific rules unique to such actions. The action could
not succeed unless there was some material evidence corroborating
the marriage proposal. Gilbert neatly side-steps this
problem, by getting the defendant effectively to admit the promise
in his song "Oh, gentlemen, listen, I pray".
It was also the rule in such cases that, following the marriage
proposal and acceptance, "chastity and modest conduct"
was a "condition subsequent", at least in the case
of the female party, so that the male was entitled to be released
from his promise if he could prove unchaste or immoral conduct
by the woman. This aspect is perhaps hinted at in the
address by plaintiff’s counsel to the Jury, commencing:
With a sense of deep emotion,
I approach this painful
Hence the plaintiff (Angelina) is referred to as "a
girl confiding" who "Coyly woo’d and gently won"
the defendant (Edwin); she was the one "naming, / And insisting
on the day"; he was the one "excuses framing - / Going
from her far away". This was said to be "Doubly
criminal" because "the maid" had innocently "bought
her trousseau". But, beyond these subtle hints, Gilbert’s
sense of Victorian morality (or prudishness) did not permit
even the faintest reference to what might have been the real
issues in "this painful case".
Another feature which set actions for breach of promise of
marriage apart from ordinary contractual claims was in relation
to the assessment of damages. The entire process was based
on the rather distasteful proposition that a woman who had once
been engaged, and whose engagement had been broken off, may
be regarded socially as "soiled merchandise"; that
her reputation would be seriously injured; and that her prospects
of attracting another suitable marriage proposal would be irreparably
harmed. In particular, if the defendant had "seduced
the plaintiff under cover of his promise", that significantly
increased her damages - even more so if, in the process, he
had communicated a disease to her.
On the defendant’s side, damages could be reduced by showing
that he was a person of bad character, of coarse and brutal
manners, or of insufficient means to keep the woman in the style
to which she was accustomed. And, given that the essence
of the claim was the impact on the woman’s reputation and future
marriage prospects, damages could be mitigated by proving her
"want of chastity", her reputation as "an immodest
woman", and other evidence of her "bad conduct".
Needless to say, most of these themes would have been
entirely unsuitable for the London stage of 1875, even though
they were the subject of daily discussion in London’s courtrooms.
Gilbert therefore focussed on the one "plea in mitigation"
which could be discussed in polite society, namely the defendant’s
coarseness and brutality. In Angelina’s and Edwin’s duet,
she emphasises her love for him, whilst he emphasises what an
unsuitable husband he would make:
I smoke like a furnace - I’m always in liquor,
- a bully - a sot;
I’m sure I should thrash her, perhaps
I should kick her,
I am such a very bad lot!
In Gilbert’s original text, the Jury have these lines which
are omitted from many modern recordings:
We would be fairly acting,
But this is most distressing!
when in liquor he would kick her,
That is an abatement.
Gilbert introduces an interesting twist, when he puts in
the defendant’s mouth the unusual proposal:
But this I am willing to say,
If it will appease her
I’ll marry this lady to-day,
And I’ll marry
the other to-morrow.
Presumably the plaintiff’s counsel is taken by surprise by
this unusual suggestion, responding with the submission that
"To marry two at once is Burglaree". Perhaps,
in his surprise, counsel confused the term "burglary"
with the term "bigamy"; or perhaps the word was intended
in a very generic sense, as meaning simply a very serious criminal
offence. Then, after consulting a law book, counsel offers
the more considered submission that:
In the reign of James the Second,
It was generally
As a rather serious crime
To marry two wives
at a time.
Even this submission is not quite as learned as it may appear
to be: in fact, it was an Act of James the First, in 1603, which
made bigamy a criminal offence - before that, it was merely
an ecclesiastical offence.
Gilbert’s ultimate solution - to have the Judge propose marriage
to Angelina - is not only delightfully theatrical, in Gilbert’s
unique "topsy turvy" way, but is also legally satisfying.
Once the Judge (presumably a man of some financial and
social standing) offered to marry the plaintiff, Angelina could
hardly persist with a claim that her broken engagement to Edwin
had harmed her reputation or marriage prospects. As the
Though defendant is a snob,
I’ll reward him for his
So we’ve settled with the job ... .
Trial by Jury is, of course, a period piece. The
Court of the Exchequer no longer exists. Juries are no
longer comprised entirely of men. Actions for breach of
promise of marriage have been abolished, both in England in
1970, and in Australia by amendment to the Federal Marriage
Act in 1976. Even before they were abolished by legislation,
such actions had already become extremely rare, in a changed
social environment where a failed engagement no longer involved
a significant social stigma, and substantial damages could not
therefore be recovered.
Even so, the issues raised by such cases are of continuing
relevance in the law. Earlier this year (2002), the High Court
of Australia had to consider whether a widow, claiming damages
arising out of her husband’s death, should have her damages
reduced on account of her future marital prospects. As
the highly respected Justice Michael Kirby observed in the course
... the question of the approach of the courts of Australia
to the prospect of remarriage of a widow [is] something
that is apt for reconsideration, given that relationships
have changed, prospects of marriage, independence of women
is different, financial independence ... . A lot of the
jurisprudence on this was written in a bygone age. It is
like a breath from another time.
Similarly, Trial by Jury is in many ways "a breath
from another time". Yet, allowing for some dramatic licence
and Gilbert’s trademark "topsy turvy" plot, it remains
a fairly accurate depiction of England’s legal system in 1875.
Unlike so many "court-room dramas" which are
shown in movies and on television, there is nothing in Trial
by Jury which can offend the astute legally-trained observer,
as being historically or legally inaccurate.