" WOODWARD v. CLARKE." g iT will certainly not tend
to my happiness to keep our engage- ment, and I do not think it will to yours, but still of course I will marry you. I have acted hastily in engaging myself, and now wish you to release me, but of course if you are resolute in your trip I must stand to my bond. I shall probably under the cir- cumstances hate you very heartily for the rest of my life, but still of course if you please I cannot recede from my contract." If 'Captain Clarke, late of Her Majesty's Army in India, had written in those terms to Miss Woodward, daughter, aged thirty, of a surgeon in Worcester, he would have escaped a fine amounting to more than one-sixth of his worldly possessions. Because he had a tittle too much respect for himself and his betrothed, a trifle too much punctiliousness, a little too much of the instinct of a gentle- man to pursue that course, and when he found he had mistaken his own feelings honourably said so, and released his fiancée, he suffered that penalty and a lecture on behaviour from the Chief Justice, and a sound rating about his social demeanour and religious im- pressions and impertinence in being an Indian officer at the hands of the penny press. The case furnishes a fine illustration of the working of our law granting damages for breach of promise of marriage. Captain Clarke, it appears, an officer with some property, on his return from India engaged himself rather hurriedly to a distant relative, a lady of thirty, daughter of a surgeon at Wor- cester. The courtship seems from the letters to have been some- what cool, and in less than three months Captain Clarke discovered that he had made a mistake, and wished to escape from his engage- ment. He wrote therefore a kindly, sensible letter to Miss Woodward, explaining in a very natural and frank way how he had contrived to misapprehend himself, and decisively, though, as the opposing counsel allowed, " in terms of delicacy and regard," breaking off the engagement. Thereupon Miss Woodward, or more probably her friends, after various efforts to compel Captain Clarke to arrange the affair by payments which he regarded as excessive, brought an action, the judge charged for the plaintiff, and the jury without much consultation gave her a verdict for 2,000/ There was not a whisper of imputation on either side, counsel rather went out of their way to ex- onerate Captain Clarke from any charge of underhand dealing, and Miss Woodward stood in a much more dignified position before the Court than plaintiffs in such actions usually do. The engagement had lasted only a few months, the lady had been put to no expense, and was not of an age to be regarded as a child heartbroken at the faithlessness of a lover, Captain Clarke was shown to possess only some 13,0001., yet the jury returned a verdict for damages which with costs will absorb about five years' income from his property. He might have knocked Miss Woodward down in the street and nearly killed her, and if he had been brought before a London magistrate he would have been let off for one-fiftieth of the sum. It is not twelve months since Mr. Justice Blackburn told a man who had been jilted at the door of the church, who had lost thereby a settlement already drawn up, and who had been put to large expense, that he hoped he would only receive a farthing, and he consequently got no more. Miss Woodward, who has lost only a husband who did not wish for her, and a possibility of settlement, and who has been put to no expense, receives 2,0001. To make such a system perfect, the lady ought to have right of action against the exe- cutors should death by any chance enable her bondsman to escape through her fingers. But then there are feelings ? Possibly ! but the action, as a legal proceeding, is either one of contract or it is not. If it is, then the actual loss of money and chances equivalent to money is the only element to be taken into consideration ; if it is not, then no law could be more inequitable, for those whose feel- ings are keenest, who feel most affection for the faithless lover, who are most really wounded by desertion, are precisely those who never by any chance appear in court. it is not Lily Dale but Amelia Roper who usually threatens actions for breach of promise. If money is a salve for feelings, how many feelings go to a pound ? We can understand a fine of the kind being a most effectual punishment, as in cases of seduction j or adultery, but then let the action be brought, as in those cases, by other than the victim herself, let it be tried by a criminal court, and let the money go, as in every other case, to the Crown, which executes sentence, not as a reward to the accuser. Above all, let the judge inflict it, and not a jury composed of people whose estimate of feelings is of the most concrete description, who have most of them daughters, and are consequently directly interested in inflicting the highest degree of punishment which will not in- volve an appeal. Or better still, let the Legislature fix a clear tariff with items, so many months' income for loss of time and so many for injured feelings, so much for the trouble of writing letters and so much for presents to be returned, a fine for every ring or lock of hair exchanged, and a still higher rate for every kiss. To allow a jury to assess such punishment without reason or precedent, to lower it if they happen to think 13,0001. competence, or raise it if the sum seems to them needless and extravagant wealth, to increase the fine if counsel for the plaintiff happens to be melodious, and reduce it if he chance to be snuffy, is an arrangement absolutely without parallel in our legal administration. If we must have such charges at all, let us at least have them tried like all others, with as little maudlin and romance about broken vows and withered hearts and "promise of the innocent dawn prematurely blighted " as may be consistent with sincerity.
Above all, let us give up our incessant chatter about the superi- ority of the English practice of basinglmarriage upon mutual right of choice. There is under such a system neither mutuality nor choice. If the man jilts the woman he is fined, as the old revenue laws used to fine, as men are liable to be fined on conviction of open treason. He is a villain, and a deceiver, and a person of mean habits, and a man to be despised, and abused by the newspapers, and rated by the judge, and generally treated with the cold shoul- der by the society in which he has previously moved. If the woman, on the other hand, jilts the man nothing at all happens to her. Counsel laugh at her lover, the jury give him a farthing, the judge tells him in open court that he is a fool, and the world with gleeful heartiness endorses the judge's opinion. Not a tongue is lifted against the woman, not a drawing-room closed, the curate will marry her just as soon if she has money or expectations, and her female friends only wonder how she could do it when Amator was so devoted. Choice of course there is none under the circumstances. Marry or be fined is the formula, and there is no form of punishment which average English society dreads more than a heavy fine, five or six years' income, like that inflicted on Captain Clarke. People used. to spend a great deal of pity over young ladies driven to the altar by hard-hearted fathers, locked up in their rooms, starved on bread and water, or it might even be personally corrected for disobedience. It was a very just pity, and produced in England an enormous crop of very amusing literature, but why should it not be felt ale° for a man lugged to the altar by a hard-hearted bride, whipped up to the ceremony by a thong of fines, threatened with the loss of his
bread if he will not be a good, obedient man, and accept her who can trounce him so severely ? There is just as much compulsion in one
case as in the other, with this additional aggravation, that whereas
the father is in many cases a better judge for the happiness of the daughter than she is for her own, the bride can never tell whether
she will be a happiness to the groom better than he can tell for bimaalf. If indeed marriage is a mere contract, like a bond for sugar, then a decree for specific performance is fair, but then in a sugar case we do not talk trash about affection, or call the agreement a " troth," or suggest that the seller may die of heart- break, or draw magnificent pictures of the mental misery which the damages will alleviate if they are heavy, and exacerbate if they are light. The truth is the suit, except so far as it is one for the reimbursement of expenses on the faith of a promise, or for breach of an engagement continued so long that the lady has actually lost all her reasonable chance of preferment, or for seduction, is a relic of the old ecclesiastical law which held betrothal equal to mar- riage, a law repudiated by the whole tone, action, and spirit of modern English society. A man may act very meanly in breaking off an engagement, and usually does, just as he may act very meanly in breaking with an intimate friend ; but if free choice is to be the basis of married love, as of friendship, the offence is not one for legal inquiry or judicial punishment.
These arguments are of course general, but there was an element imported into this special case which deserves a word of remark. It is alleged with something of horror that in the envelope of the letter which the defendant wrote, in " terms of such delicacy and regard " to his intended, there were texts, verses of hymns, and other most objectionably religious matter. Counsel for the plain- tiff placed that outrage in a very strong light, and even counsel for the defendant seem to think it quite indefensible by ordinary argu- ment, suggesting the absurd defence that plaintiffs mother might have inclosed them, as if the unlucky Indian had been a lad of eigh- teen. We are not quite sure that the jury did not fine Captain Clarke at least 1,0001. for quoting the Bible and writing religious doggrel. All that is natural enough, and as showing the instinctive British hatred of supposed hypocrisy is even commendable ; but that Sir A. Cockburn should have declared that the quotations gave the affair a worse character does a little surprise us. Surely he of all men on earth must know with his varied experience that there is no form of fatuity so common as that of religious quotation, that there are men who would quote texts to a patient under an opera- tion, and offer religious doggrel as solace to a sufferer by the gout. It is no doubt very hard when one is angry, and mortified, and has good reason for being both, to be pelted with texts and choked with slices of hymn ; it must be nearly as bad as being prayed for, but then it is not exactly a legal offence. It would be very irritating to Lord Westbury if the Times headed every report of a speech of his with " Doest thou well to be angry ?"—but he would hardly imprison the printer merely for that inuendo. The whole affair, engagement, breach of faith, habit of doggrel, and tendency to religious quotation showed Captain Clarke to be an unwise and impulsive man, but that is not precisely a reason for fining him 2,0001. because he had wisdom enough to tell a lady that she would be most unhappy if she married him.
Previous page
