IS MARRIAGE A CONTRACT?
MR. JUSTICE BLACKBURN has we suspect made an end of the law upon breach of promise of marriage. Indeed he ' says there is no law, only a popular sentiment, and whenever the circumstances do not evoke that sentiment there is an end of the - chance of legal redress for the " injured " plaintiff. Mr. Lister, " formerly a canvasadealer in Leeds," and a man of 55, proposed, it appears, to Mrs. Patience Wray, a well-preserved widow of 69 who had buried three husbands, but retained jointures producing about 700/. a year. The old lady, who is not represented as either doting or incompetent, accepted her suitor, the day was fixed, and a marriage settlement was drawn up securing her apparently the better half of her own property, a sensible business-like arrange- ment enough. The day, the 15th February, was fixed, the car- riages were ordered, the breakfast was cooked, when on the morn- ing of the marriage the widow sent word that she had changed her mind, and positively refused to fulfil her engagement.. Mr. Lister, annoyed at finding himself the laughing-stock of all Leeds, and enraged at the loss of the money he had risked so much ridicule to obtain, went to a solicitor, who it would seem thought there was a chance of obtaining 1,000/. damages. We really cannot blame the attorney except for his ignorance as to the ways of juries and the ideas of Mr. Justice Blackburn. The case must have seemed to any average mind more than sufficiently simple. Mrs. Wray was an old goose who had recovered her judgment just in time, and Mr. Lister a mercenary person with as little delicacy in his composition as was very well possible. But nevertheless there was the contract, and if it had been one for the delivery of sugar the silly person must have handed it over to the mercenary one without the slightest reference to their respec- tive qualities. There were no " blighted affections," or "broken vows," or "diminished chances," or "injured beauties" to talk about to the jury, but neither are there in any other action for performance of contract, yet the Court does justice all the same. Every contract is " mercenary " in Leeds as well as other places, at least we never heard of a bargain for iron, or coffee, or mohair in which the contractor did not expect to make something, or was moved by any other idea than the hope of certain cash. That a contract for marriage is regarded by the law as simply one among many is proved by the fact that when a woman is plaintiff the
Court always listens to evidence of the loss in position and money she is supposed to have sustained, aaks the defendant's income and prospects, and estimates by the direct pecuniary loss the amount of damage to be awarded. This, however, was not the view of Mr. Justice Blackburn. Before the case bad been opened he asked Mr. Seymour, plaintiff's counsel, whether it was needful for the sake of "decency and public justice" to bring the suit into Court at all, and predicted a verdict giving one farthing damages.
He "never knew this action brought by a man when the man recovered a shilling." Mr. Seymour with great pluck still fought through the prejudged suit, basing Ins client's claim of course on simple contract right, the contract was proved, the loss of income was admitted, and then the following extraordinary scene took place :—" Mr. Seymour : I do not ask for large damages, but I hope the jury will not insult the plaintiff. —The Judge : I hope they will. (Laughter.) Gentlemen, you will have to find a verdict for the plaintiff.—A Juryman : The question with us is the amount which will carry costs.—The Judge : The question to be considered by you is whether this man's feelings as a fortune-hunter have suffered so as to call for compen- sation.—Mr. Seymour : My Lord, do not call him a fortune-hunter. —The Judge : Well, then, a gentleman of fifty-five seeking to marry a widow of sixty-nine with a jointure. (Laughter.)—The jury then returned a verdict for the plaintiff—damages one far- thing." In other words, the Judge lays it down as a principle that selfish mercenary and indelicate persons are not entitled to appeal to the Courts, and in open court asks the jury to " insult " plain- tiffs who are pressing legal rights in opposition to public sentiment. The trial has been described everywhere as a discreditable farce, but it was rather a pantomime, with Justice for pantaloon and the Judge for harlequin. A foolish or mercenary or indelicate per- son has just as much right to appeal to the laws as the wisest or most respectable, just as much entitled to a fair and decorous hearing, and Mr. Lister did not get it. It was not thus, but by patience and courteous firmness, by repelling all popular feeling and maintaining legal right as sacred, that our older race of Judges upheld the dignity of their office.
The sentiment under which Mr. Justice Blackburn acted is patent to every reader of the report. He thought with the crowd who thronged the Court that damages for breach of promise were in- tended to salve wounded honour and revive blighted affections, to act as a punishment for the broken vows of the lover and a cordial for the broken heart of the maiden. In this case there was neither honour nor affection, vow nor heart, and the judge therefore dismissed the suit with the ridicule which everywhere except in a Court created to enforce the fulfilment of contracts it undoubtedly deserved. The crowd cheered him voci- ferously, so he obtained doubtless the reward he expected ; but in what sort of position does he leave the law ? The action for breach of promise is either based upon the supposition of pecuniary damage sustained, or on that of damage done to the affections of the jilted, or on both. In the former ease the law has been simply set at naught, for even a Leeds jury will scarcely hold that character is to be considered when enforcing a bargain, that Smith may refuse to pay his tailor if the tailor is given to drink, or Jones repudiate bills for wine unless the merchant can prove that he is a young and a sensible man. Nor are civil judges understood to affirm that sex makes a difference in the legal liability to be applied to for debts. Spinsters' and widows' property is distrained, and they are impri- soned, and are rather more troubled about their debts than their fathers or husbands would have been. No small proportion of the smaller shops in Great Britain and at least one-third of the country inns are kept by women. Is Mr. Justice Blackburn prepared to rule that they are not bound to supply the goods - they promise or pay the bills they contract, that their age is to be taken into consideration, or that any degree of silliness short of mental irresponsibility releases them from the effect of their signatures? The question is answered by putting it, but under the alternative theory what sort of a law is that for breach of pro- mise of marriage? Have we really a rate of payment for affections, a tariff for broken hearts, a schedule of charges for lovers' vows, varying as per warmth and reiteration ? Does the law really intend plaintiffs to do like the tailors, and pile up charges accord- ing to their own epithets, rising .five per cent. with "fine," ten with "superfine," thirty with "extra superfine," and fifty with "extra superfine double-milled" promises rind vows ? If the injury sus- tained is material, why refuse a hearing to Mr. Lister, whose counsel pleaded nothing else ; if a mental one, of what value are the great damages juries are so eager to award? If the injury is material a man can lose his money just as well as a woman, if mental surely he is supposed capable of feeling as well as inflicting the "tortures
of the betrayed." The truth is the action is based upon both ideas. The forlorn lady—we strike out of course cases of seduc- tion, which ought not to be punished incidentally but directly— is supposed to be injured in her feelings, and to have lost part of her capital in time, youth, and good looks, and to have been deprived of the advantages she expected and was promised from the new position. A counsel clever in such cases always mixes up all those losses into one hash of declamation,— the wound to the virgin heart and the blighted prospect of furniture, the chill upon young affections and the passed-away hope of a carriage, the perjury the lover has committed and the expectations he has a right to entertain from his aunt. Damages vary according to means, that is, according to the chance which has been taken away, and though age and sex and personal qualities are elements in the account they are not the principal ones.
One good, however, =1st result from the speeches of Mr. Justice Blackburn. If the mental injury sustained is the only one to be considered, as he and the crowd agreed, the law, which is a blot on our statute- book, at variance with our whole system of marrying by choice and not by an arrangement with which choice has nothing to do, must be in a fair way to repeal. The man is already debarred by opinion from action,—though men have been known to die of a jilt,—and the girl who really feels the mental emotion is precisely the one who never appears as plaintiff. It is Amelia Roper, the girl to whom one man is nearly as good as another, who looks to marriage as a man looks to a partnership, as a respectable way of "establishing" herself, who accepts damages as a solace for a wounded heart, and allows her friends to produce the letters which prove the affection never given, and gain the cash which is so much more tangible. Hitherto she has been able to plead loss of position,—of advantage solemnly contracted for, but Mr. Justice Blackburn has cut away that ground from under her counsel's feet. There is only the heart to be healed, and hearts are not healed with extorted cash.
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