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a. Is This the Court of the Exchequer?
b. In the Reign of James the Second


PAUL McSHANE: I don't purport to have any expertise concerning the nineteenth century British legal system, but it occurs to me that the Exchequer's court, which specialised in matters of taxes and finance, would not be a very appropriate venue for a breach of promise case.

RICA MENDES: It seems that Angelina is not looking to make Edwin marry her, but rather receive "substantial damages" though her pleading is based on emotion, she seems to be taking the approach that this was some sort of financial contract, no?

MARC SHEPHERD: A Breach of Promise would not have been tried in the Court of the Exchequer. Moreover, that court was abolished in 1873, so it no longer even existed when the opera was written.

PAUL McSHANE: As a young Equity draftsman, Gilbert surely would have known about this, which leaves three possibilities:

1. Unlikely as it sounds, breach of promise cases were heard in the Exchequer's court.

MARC SHEPHERD: Nope. I consulted three sources, and they all agree that the Court of the Exchequer heard only revenue cases. Never knew such unanimity on a point of law in my life.

ROBERT JONES: My Pear's Cyclopaedia, a veritable cornucopia of knowledge, states that Exchequer deals with public revenues, so it is in no way responsible for breaches of contract, which come under civil law.

PAUL McSHANE: ... 2. Gilbert knew it was the wrong court, but inserted the line as part of the "humour" of the piece. (I don't believe this is true, although some of us are occasionally prone to explain away factual errors in the text as being part of Gilbert's humour.)

MARC SHEPHERD: This is the explanation I lean to.

ROBERT JONES: I vote for the "humour" explanation. I can't quite see it, but I doubt that Gilbert so desperately needed a rhyme for "pecker".

PAUL McSHANE: ... 3. Gilbert didn't really care Trial by Jury was a very early piece of his (predating Thespis), written before his taste for exact faultless fact amounted to a disease.

MARC SHEPHERD: I'm not sure that Gilbert's taste for faultless fact ever DID amount to a disease.

[See The Birth of Trial by Jury]

JOHN ATKINSON: The Court of the Exchequer went out of existence in 1873 and became part of the High Court (Queens Bench Division). It would not have heard a case of breach of promise, other than for WSG and that on the ground that Exchequer rhymes with Pecker very nicely.

ANDREW CROWTHER: Surely the important word in that rhyme is "Exchequer", and "pecker" is dragged in to rhyme with that not the other way round? I'm sure "Be firm, be firm, my pecker" is not the sort of line one thinks up unless exigence of rhyme compels. As to why Gilbert brought in the Court of the Exchequer at all, I can only guess. Where would a Breach of Promise have been tried? Would it have been tried before a Jury? Obviously Gilbert needed a Jury for his satire, and if the real trial wouldn't have had one, he might have bent reality so as to bring the trial before a court with a jury. (This is pure guesswork, and open to correction from someone who actually knows something about these things.)

JOHN ATKINSON: Exchequer or pecker, which was the prior thought of WSG? The line became "be firm, be firm, my pecker" after first appearing as "be firm, my moral pecker".

An earlier Bab Ballad entitled "The Haughty Actor" contained the following:

Dispirited became our friend
Depressed his moral pecker

It's a good job Edwin was also called the Defendant, otherwise WSG would have been hard pushed to find a rhyme with ascendant.

SAM L. CLAPP: Excuse me, are you for real?? Your recent posts (notably this one) have provided me with no end of eyerolling...

JOHN ATKINSON: I'm perfectly for real. Which one of my other 2!! messages caused you a problem? As for Ascendant/Defendant well , sorry, that was tongue in cheek which surely is where WSG kept his a lot of the time.


Is this the Court of Common Pleas?

It is.

Be still, be still my tremb'ling knees.

The Court of the Exchequer was indeed abolished by the Courts Act of 1873 which came into effect in 1875 i.e. it ceased to exist in the year of Trial by Jury's first production. It would have tried certain Breach of Promise cases if the object of the case was to "tax", i.e. assess, the damages due to the wronged party.

Had the dispute been whether Edwin had or had not made a promise to Angelina, then the Court of Common Pleas would have tried the case. In Trial by Jury the fact of an engagement is not in dispute. What the court is meeting to decide is how much to "tax" Edwin for breaking the engagement.

Angelina's legal advisors have decided that her expenditure (on her trousseau) and loss of reputation amount to a worth of more than ukp1500: otherwise a jury would not have been summoned, and a judge in open court could have decided on HIS own.

Gilbert knew his legal procedures, but I am sure he used Court of the Exchequer as that is the tribunal an 1875 audience would have recognised. I am certain he could have found an alternative to rhyme with "common pleas" had he thought that appropriate.

RONALD ORENSTEIN: He did, in the Bab Ballad version of Trial by Jury:

See her sinking on her knees
In the Court of Common Pleas..

DAVID DUFFEY: In Trial by Jury, WSG illustrates a quite straightforward breach of promise case. The facts are not in dispute. If they were, the Court of Common Pleas would have been used. A little light research turns up that the Courts Act 1873 came into effect on one minute to midnight on 31 December 1875: therefore for all of 1875 the Court of Exchequer was the correct tribunal to assess the damages Edwin must pay.

The relevant legal points are:

1. An engagement to marry exists between Edwin and Angelina

2. Edwin seeks to break this engagement

3. Edwin is not alleging that Angelina has acted in such a fashion that he is justified in seeking to break the engagement

Had any of the above been in dispute, the Court of Common Pleas would have heard the case.

What is in dispute is the amount of money Edwin will be required to pay to compensate Angelina for pecuniary loss and in damages. As soon as Edwin enters a plea in mitigation: "I'm sure I should kick her", etc., the jury realise the matter might not be simple and seek judicial guidance.

ANDREW SOLOVAY: And one other complicating factor: Edwin changes his mind (in the course of the opera) about point 2! He says that he's willing to keep the engagement after all, provided that he also be permitted to marry the other woman. This means that it's no longer Edwin breaking the engagement it's Angelina (and the court) saying they're not willing to let the marriage proceed under Edwin's terms.

I'm not sure whether that's enough to throw the case into Common Pleas... Good thing the Judge's lateral thinking found a solution.

ANDREW CROWTHER: I don't think this is quite what is happening here. Effectively, this is what Edwin is saying: "All right, you've got me. I was engaged to Angelina, and I did jilt her and get engaged to someone else. You don't want me to commit Breach of Promise all right. But I can only avoid it by marrying both women." At this point the "nice dilemma" becomes the fact that whichever course of action he takes, he will be breaking the law.

DAVID DUFFEY: My only worry about the whole matter is that the Learned Judge is usually dressed in red. The case would normally have been presided over in the first instance by a Judge in Ordinary, who would have had a purple gown with a white sash.

GEOFFREY DIXON: Only [dressed in red] by amateur costumiers and wardrobe mistresses. The old DOC always had him in black.

DAVID DUFFEY: Absolutely correct, they did so indeed. Thanks for refreshing my colour memory.

On checking again I discover that the purple robe for a Judge in Ordinary was adopted at the same time as the Court of the Exchequer was abolished i.e. from 1 January 1876. My reference book does not state what the correct dress was before then I expect it must have been black.


FRASER CHARLTON: I remember reading, somewhere or other years ago, that Gilbert felt that/was told that "bigamy"was an unsuitable subject for the stage, and that he had to substitute "burglaree" instead.

I've always felt that this must be sloblock, as it is a delightfully witty moment when both the "man of learning" and the Judge nod sagely about something that is obviously nonsense. But perhaps I am wrong, and Gilbert had the Malapropism forced upon him. Anyone know the truth?

DAVID DUFFEY: Gilbert takes very little "dramatic license" with the legal niceties. I have always assumed "burglaree" to be used for its shock effect, as if to say "hyenas crime".

MAUREEN ROULT: In the one production of Trial by Jury I've done, the moment "Burglaree" escapes his lips, Counsel realizes he's said the wrong word. He quickly glances at the Judge and rest of the Court to see if anyone has noticed. No one has (no surprise!). He heaves a sigh of relief and proceeds to look pleased with himself for having made a telling argument.

Page updated 13 November 2004