§ MR. HERSCHELL
, in rising to move—That, in the opinion of this House, the action of Breach of Promise of Marriage ought to be abolished except in cases where actual pecuniary loss has been incurred by reason of the promise, the damages being limited to such pecuniary loss,said, he could assure the House that it was in no spirit of levity that he introduced the Motion to their notice, and he feared that any who had come expecting amusement would go empty away. During some years the conviction had been forced upon him that the action for breach of promise was evil in its tendency, mischievous in its result, and the time had come when it might be advantageously considered by the House. The question to some might seem of trivial import, and hardly worthy of the dignity of discussion in the House of Commons; but he believed that it really struck its roots deeper into the social system, and touched the life of society at more points, than might at first sight appear. Whatever difference of opinion there might be with regard to the Motion, there could be but one opinion on this point—that the action was every day scandalously abused. Hon. Mem- 1868 bers who did not confine their attention exclusively to politics could scarcely read their newspapers without seeing abundant proof of what he had stated. Many of these actions were brought merely for the purpose of extortion, and the levying of black mail; and his professional experience had led him to the conclusion that it was time they were abolished. Instances of the kind had happened within a year or two which might be mentioned; but he would not detain the House longer than to give two instances by way of illustration. A case occurred, a year or two ago, of an action brought against a clergyman of the age of 65 by a young woman of 35. She alleged that they had been engaged to be married since 1864; but the marriage had been postponed on account of the objection of some relatives in whose house he lived. She produced a witness who gave some kind of corroboration to her story. On the part of the defendant the engagement was utterly denied; but according to the account which he (Mr. Herschell) had received from one of the counsel engaged, the defendant was afflicted with an impediment in his speech and an irrepressible habit of yawning, and he had this further peculiarity, that he had a great love for medicine. According to a curious calculation that was made, he had taken 67,000 pills in a few previous years. The result was that these things unfavourably impressed the jury, and they gave a verdict for the plaintiff, with £150 damages. At the next sitting of the Court, when a new trial was applied for, affidavits were made as to the plaintiff's antecedents, and satisfactory evidence was given that she was an abandoned woman who had been convicted of theft, and that during the time of her alleged engagement to the clergyman she had threatened two other persons with actions, and had succeeded in getting from one £80 in order to settle the matter and keep it out of Court. No sort of answer was ever given to either of the charges exhibited in the affidavits. The case had never again been heard of, and it was a clear instance of extortion. The second case to which he would refer was an action brought against one of the other sex, and it was well he should give it, because it might be said by some that the Motion he had submitted was entirely in the interests of men. In 1869 this case, the man proceeded against the woman. He had behaved scandalously towards her, and shown clearly that he cared nothing whatever for her, his motive being sheer avarice, and if the whole circumstances had been laid before a jury, they would have given him a farthing damages. But the lady had the greatest possible aversion to having her letters published in the newspapers, and the consequence was that she paid the scoundrel £1,000 and his costs rather than submit to having the correspondence laid before the Court. That was a case in which the action was brought simply for the purpose of extortion, and it was undoubtedly a gross abuse of the law. Every day actions were brought where no promise had been made, and every day actions were brought to redress no real wrong or injury. But even in cases where some sort of promise had been given, it was impossible for a man to obtain justice, for it was always difficult to get the facts fairly weighed by a jury. If he attempted, in the course of the case, to suggest that the woman was anything but an angel in temper—a very embodiment of all the female virtues—so that there would be some reason to justify a man in not marrying her, the mere suggestion was enough to bring down upon him a whole torrent of invective from Judge, counsel, and jury, and comments of such a nature were made that the unfortunate man came out of Court in the most uncomfortable position, although, if the merits of the case had been fairly investigated, it would have been seen in many cases that the man had not been one whit to blame. That being the case, when they found that actions of that kind were scandalously abused, it was time that the action should justify itself, that they might see on what foundation it rested—whether there was any sound basis on which it could be supported. The action for breach of promise of marriage was not so ancient as some persons might be disposed to imagine. This country flourished for many centuries in a perfectly satisfactory condition without any person thinking of bringing an action of this description. About two centuries ago it was established that such an action lay, so that there was no flavour of venerable antiquity surrounding it. It was true, however, that as far back as the reign of 1870 Queen Elizabeth an action somewhat of this description was brought by a man, who alleged that the woman had given him flattering words equal to a promise of marriage; that, therefore, he delivered to her money and other things; and that afterwards the woman married another man in deceit and fraud of the plaintiff. But the first action founded on the allegation of a promise of marriage was brought in the reign of Charles I.; and from the time of Charles I. it was established that for breach of this contract an action lay. For a considerable time it was thought that the promise must be in writing; but subsequently a different view prevailed on this point. In cases of this kind the law departed altogether from the ordinary rules in assessing damages for breach of contract. Wounded feelings were taken into account, while no regard was paid to other circumstances of the case. Could it be maintained for a moment that a union without affection was a desirable thing? A promise of marriage was held to be a contract, and could only be avoided like any other contract—like one to buy a bale of wool, for instance. It was alleged on the part of the woman who brought the action that had the promise not been broken the woman would have had a home, a husband, and a maintenance, though the question of what sort of home and husband she would have had was never considered. They regarded the woman as having suffered as great a loss as if she had lost the most affectionate and desirable of husbands; and it was no answer to an action of this kind that the person had just come from a lunatic asylum, where he or she had passed the best part of a life-time. When the question of damages, however, was approached, then, as a rule, the way of dealing with ordinary contracts was departed from, the damages generally given being in inverse ratio to the merits of the case. For instance, a pretty and engaging woman, who, there was little doubt, would soon get another engagement, and whose loss, consequently, would comparatively be very little, would get heavy damages, especially if the defendant was a greedy, avaricious, mean-spirited fellow, who would have made her a very bad husband. On the other hand, in the case of a plain, unattractive woman, not likely 1871 to obtain another engagement, whom the man had treated with consideration and honour, and who would have made her a very good husband, her damages would be but small, although her loss was far greater than in the other case. It was said that this was a contract, and must be enforced by law; but with such a contract, and one party hostile to carrying it out, he contended that if before the bond became indissoluble either of the parties desired to be free, it was better for both of them, and better for society, that they should be free, not only for their own sakes, but also for the sakes of the children who would possibly follow from it. How could they be properly brought up if there were not only a want of harmony, but actual hostility between the parents? He denied that there was any real similarity between the contract between persons who engaged to marry and any other kind of contract, inasmuch as the former alone bound the parties to an indissoluble union; and would point out, as an anomaly, that a contract by which a man undertook to pay £5 in consideration of marriage could only be sustained if in writing, while a contract by which he engaged to pay not money, but himself, could be sustained by mere verbal declarations, often of the very slightest character. Though he had brought this subject before the House in two Sessions, only one Petition had been presented against the proposal, and that Petition only obtained nine signatures. The petitioners declared that marriage was a profession in which women earned their livelihood by the discharge of the social, conjugal, and domestic duties which appertained to matrimony; that the entrance into that profession came through an offer of marriage; and that the breach of such a promise hindered a woman from obtaining her proper station in life, inasmuch as a woman who gave her affections to one man could not transfer them to another without grievous loss. The view of the petitioners seemed to be that marriage was the result of a kind of competitive examination for the appointment of wife; that the obtaining of a promise was to be regarded as passing the examination; and that it was a great shame if a woman, after passing the examination, failed to get the appointment. He maintained that such a suggestion 1872 was an insult to women, for it was not true that a woman earned her livelihood by performing her conjugal, social, and domestic duties. Earned her livelihood! He did not like the phrase, as it was impossible to admire too much the devotion, the zeal, and the unselfishness with which women performed their social and domestic duties, and endeavoured to promote the happiness of the men to whom they were united. They performed them with a zeal and an unselfishness which indifference was scarcely able to chill, and which brutality could not always extinguish. Therefore, he protested against the view that women performed those duties by way of return for board and maintenance as being as degrading as it was untrue. The alteration of the law which he proposed was not to abolish the action in every case. If, on the faith of the promise that had been made, a woman had incurred expense or loss, it was right that it should be recouped. There were cases in which a servant or a governess might have given up a situation, or a person a shop, at the request of the man to whom she was engaged, thus incurring undoubted pecuniary loss in consequence of the promise, and it would be unjust that she should not be indemnified. An action on that account was not open to the objections which applied to the law as it stood. Therefore, while abolishing the ordinary action for breach of promise, he would reserve the right to claim compensation for money loss incurred in consequence of the contract. He was glad that the proposal he was about to make would bring the law of England into harmony with the law of other European States. The French law was, with one exception—that of seduction in consequence of a promise of marriage—substantially what he proposed. Damages could only be recovered on account of what was called a préjudice réel. In the Italian Code, it was expressly laid down that the mutual promise involved no obligation to contract the marriage; and that, when the promise was in writing, the party who refused to carry out the promise was bound only to re-imburse the expenses of the other. According to the Austrian law, the party breaking the promise was not liable to the other for anything beyond the actual damage sustained. The Dutch law was substantially the same. The American law was the 1873 same as our own, and was borrowed from ours; but if the House agreed to this Motion, it would give a stimulus to the reform of the law in the United States. In Germany, where the engagement was of a more formal nature than in this country, being an official act before public authorities, one-fifth of the dower might be claimed, if one of the parties refused without just cause. Possibly there were some few cases of breach of promise which were cases of hardship, in which it was most desirable that an action should lie. He believed, however, that such cases were very few, and that it was impossible to legislate for them. Therefore, the question must be dealt with as a whole. On the other hand, the law was abused in very many cases; and in so many that, in his opinion, it was better that the action should be abolished. If the law, as a whole, was put on a satisfactory basis, they must submit to individual cases of hardship. It was said that it would be very hard, after an engagement extending over several years, that a man should break it off and leave the woman with less chance of obtaining a partner in life. It was said, therefore, that there should be compensation in such cases. But he could not help thinking that a great many of those lingering engagements were the result of the present state of the law, of the moral cowardice on the part of the man, who felt that his affection had grown cool, and who, rather than break off and risk an action, went on year after year continuing an engagement with a woman whom he knew he never could marry. But was it desirable by force of law to drive people into a union when one was unwilling? What would be thought of the woman who would insist upon the performance of the engagement when she knew that the man would do anything in the world rather than marry her? To make a man continue to love a woman the law was powerless. With regard to another class of cases. In the law of France, as he had said, an exception was made where seduction was the immediate consequence of the promise of marriage. It seemed to him that it would be impossible to make such an exception. It would be impossible to afford relief of that kind to a woman whose virtue had failed, when it was denied to a woman whose virtue had been more robust and unshaken. He 1874 admitted, however, that the present law of seduction was highly unsatisfactory: it was barbarous and ridiculous, and urgently required alteration. It might be said that if that change were made, they would have many more instances of seduction under promise of marriage. He ventured to doubt that very much. He believed that, in the main, when men made promises of marriage they intended to keep them; but if any man were wicked enough purposely to make a promise of marriage, intending never to keep it, but to effect the ruin of a girl, he could easily enough now so manage his conduct as not to render himself liable to any action at all. And it was worthy of consideration whether the change might not operate in the opposite direction; and whether, if women knew that man's promises were not certain of fulfilment, they might not be more careful and more robust in regard to their virtue. About a century ago, one of the greatest Judges who ever graced the English Bench, Lord Mansfield, expressed strong objections to that kind of action, and characterized it as one which, on account of its consequences, ought to be viewed with the greatest jealousy. Lord Mansfield further said that both sides ought to continue free, otherwise such contracts might be greatly abused by putting woman's virtue in danger by too much confidence in men. That remark was equally applicable at the present day. Again, he might be met by what he would call the "big-brother argument." He might be told that if the change suggested were made in the law, the indignant brothers of fair ladies would take the cause of their injured sisters into their own hands, and chastise the men who had broken their promises of marriage. Now, he did not believe in these valiant brothers; and it was simply ridiculous to suppose brothers burning to avenge their sisters' wrongs, and yet keeping back their indignant arm in the consciousness that an action would lie for breach of promise of marriage. Did the lady's brother really say—"Be still, indignant heart! Restrain your violent arm. Are there not the Law Courts to appeal to?" Again, it was often forgotten that that was after all a class action, and that amongst what were called the upper classes and amongst the artizan class it was alike unknown, and the evils which 1875 it was predicted would arise from its removal were not found to exist in those classes. It was also objected that the change he suggested would tend to diminish the sense of the binding nature of the promise of marriage; but if they passed that law to-morrow, he believed it would still be thought discreditable to engage a woman's affections lightly and to cast them off lightly, although the idea might be disposed of that wounded feelings could be assuaged with money bags and broken hearts mended with gold and silver. With regard to the Amendment by which his Motion was about to be met, he quite agreed with the allegation it contained, that the injury sustained by a breach of promise of marriage could not be weighed, by the standard of pecuniary loss alone. He went further, and contended that it could not be measured by a pecuniary standard at all, and that was why he proposed his Motion. He had been met by professional men—to whom he ought, perhaps, to apologize for taking the step he had, seeing that whoever else might be gainers from the abolition of the action, they certainly would not—with the remark that it was too bad to take away that class of cases from them, especially at a time of so much depression of trade; but he was sure they would feel that the interests of the Profession must give way to the interests of the public. The more the reform was considered, the more he believed would it commend itself to the calm sense and judgment of the people. If passed, it would elevate men's views about the marriage bond; it would cheek much that was evil; and his firm conviction was that it would add to the well-being and happiness of the community. The hon. and learned Member concluded by moving the Resolution of which he had given Notice.
Motion made, and Question proposed,
That, in the opinion of this House, the action of Breach of Promise of Marriage ought to be abolished except in cases where actual pecuniary loss has been incurred by reason of the promise, the damages being limited to such pecuniary loss."—(Mr. Herschell.)
§ SIR EARDLEY WILMOT
, in rising to move the following Amendment:—That the injury sustained by Breach of Promise of Marriage cannot be weighed by the standard of pecuniary loss alone, and that the limitation of the action in the manner proposed by the Resolution would be very undesirable.1876 said, the hon. and learned Gentleman opposite (Mr. Herschell) had devoted his argument entirely to advocating the complete abolition of action for breach of promise; but his Motion was expressly in favour of limiting it to cases where actual pecuniary loss had been incurred. As a matter of fact, however, it was impossible for any jury to assess in a satisfactory way what actual pecuniary loss had been incurred by a lady. There were many cases in which women suffered serious injury, in which it could not be shown that they had sustained any pecuniary loss. Young ladies in the higher class of life, who had no independent fortunes of their own, lived with their parents; but they were liable to great disadvantages during the period of their engagement. A young lady under those circumstances was a wallflower—she could not waltz, she was kept very much to herself, and if the engagement was broken off without her assent, her only loss, putting aside her wounded feelings and slighted affections, was the chances she might have missed owing to the fact that her engagement was known in the society in which she moved. In the middle and lower ranks of society, also, he failed to see how young women sustained pecuniary loss by the breaking of engagements to marry, because, as a rule, they either continued to live with their parents, who maintained them, or did not cease from following employments in which, up to the time of their engagements to marry, they had been engaged. Looking at the question broadly, he would ask whether the action of breach of promise of marriage, which had lasted for 200 years, had proved mischievous or beneficial? On the whole, he thought that experience proved it to have been beneficial, although, like all other processes known to the law, it was capable of abuse; and it was beneficial mainly because it acted as a deterrent upon the minds of many men, for such were frequently to be found, who would otherwise, from mere wantonness, trifle with the affections of women. Women were much weaker than men, and, in nearly all these cases, the man was the injuring party. His hon. and learned Friend ridiculed the idea of women being pecuniarily injured by a breach of promise; but he (Sir Eardley Wilmot) maintained that marriage and a settlement in life were the one object of a 1877 woman's life, whereas men had numerous engagements to occupy their time and attention, and to divert chagrin and disappointment. Lord Byron, whose knowledge of women could not be gainsaid, told them in that memorable stanza, the whole of which he cited—Man's love is of man's life a thing apart,Tis woman's sole existence.His hon. and learned Friend, however, would simply tell them to take care of themselves, and, like Balthazar, in Much Ado About Nothing, said to them—Sigh no more, ladies, sigh no more,Men were deceivers ever,One foot in sea and one on shore,To one thing constant never.This was very much more of a woman's than a man's question; and he could not help, in passing, alluding to the loss they had sustained in the death of the hon. and learned Member for Limerick (Mr. Butt), whose presence would have shed lustre on the present dabate, while his powerful and eloquent reasoning would have greatly aided them in coming to a correct and just conclusion. He had had the honour of an acquaintance with that Gentleman for more than 20 years, and he hoped he would have been spared to assist, not only that night, but in the debate on the Criminal Code Bill on the previous evening. Having known him for many years, he believed that, as a lawyer, he was second to no man in that House. He could unravel an intricate legal argument referring to numberless cases without the employment of a single note. He (Sir Eardley Wilmot) well remembered the masterly speech he made, two years ago, in the debate on women's disabilities. He never heard a more eloquent or more logical speech; and in that speech occurred the words—By the arrangements of God, man was intended for the busy walks of life, woman for the sanctuary of home and for those offices far higher than man could perform in the busy scones of life, and which make home and life holy. That is her place."—[3 Hansard, ccxxxiv. 1413.]Those words, he thought, were very apropos to the present debate, for it was marriage which gave to woman that sanctuary and holiness of home so truthfully described by the late Member for Limerick. He was sure that the House would join with him in expressing sorrow for the loss which Parliament had sus- 1878 tained by the death of the hon. and learned Member. He hoped the House would not adopt the Resolution of his hon. and learned Friend opposite, which, practically, would abolish actions for breach of promise altogether; but that the fair sex, who were not there to advocate their own rights and speak in behalf of themselves, would find many hon. Members to fight their battle and retain an action which was valuable, chiefly as a safeguard for women, even if it were not resorted to in a Court of Law. In conclusion, he would move the Amendment of which he had given Notice.
§ MR. MORGAN LLOYD
, in seconding the Amendment, said, it was worthy of observation that the hon. and learned Gentleman (Mr. Herschell) had abandoned his original proposal, which was that no action for a breach of promise should be brought at all. That was the scheme last year; but now it was proposed to place that action on the same footing with actions for breaches of mercantile contracts generally. If the original proposal had been carried out, breaches of promise of marriage would have formed the only exception to the general rule that whenever a contract was broken the party aggrieved had a right of action. It was the law of the land that in cases where contracts were broken the aggrieved party had a right of action at law for damages; and he did not see why that rule should be departed from when the contract broken was a contract to marry. The proposal now was not to abolish the action, but to limit the right to recover damages to the pecuniary loss. He (Mr. Morgan Lloyd) should like to know why that should be? No reasons had been adduced in favour of such a proposition. The direct pecuniary loss was generally trifling as compared with the direct damage. A long engagement with one man might deprive a woman of other eligible offers, and affect her whole life. It sometimes happened, no doubt, that one party refused to release the other from his engagement even after it had become evident that a marriage would only lead to unhappiness; but there were also many cases in which a man wished to sacrifice the feelings not only of the lady to whom he was engaged, but his own affection for her, so as to marry another woman for money. In 1879 such instances, it would not be just to allow the man to throw off the woman, after spoiling her chance of marriage, without compensation. Then, the argument that high-minded women would not resort to the law in cases of breach of promise had no value whatever, as the same might be said of all rights of action. The Courts were open to all, and it was at the option of parties to have recourse to them. Besides, Parliament did not legislate for high-minded or low-minded people. It legislated on the justice of the case. The question was not, what would be the result of the passing of a Bill founded on the Resolution upon individuals, so much as what it would be upon the public generally. The present law, though it allowed, also had the effect of preventing, actions for breach of promise of marriage being brought, by preventing breaches of the contract. No one who broke such a promise could say now he was free from the expenses and exposure of an action, and breaches of promise were thereby prevented. It was said that it was impolitic to force men to marry against their will, but nobody was bound to marry unless he liked. If he had promised, and did not perform his promise, he was bound to make compensation for his breach of contract.
To leave out from the word "That" to the end of the Question, in order to add the words "the injury sustained by Breach of Promise of Marriage cannot be weighed by the standard of pecuniary loss alone, and that the limitation of the action in the manner proposed by the Resolution would be very undesirable,"—(Sir Eardley Wilmot,)
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ MR. FORSYTH
said, that although he was opposed to the Motion of his hon. and learned Friend the Member for Durham (Mr. Herschell), he was ready to support him in any attempt he might make to amend the existing law by making proof of the promise to marry more stringent than it was at present. He was ready to admit that juries were sometimes called upon to infer a promise from circumstances which did not warrant it—as in the famous case of "Bardell v. Pickwick," so satirically described 1880 by our great novelist Dickens. But he (Mr. Forsyth) did not see why wounded feelings, as well as pecuniary damage, should not be taken into account. This was so in the case of actions for seduction, where the smallest loss of service to the plaintiff gave a right of action; and the jury, being over-seized with the case, might award such damages as they thought fit. Very often an action for breach of promise of marriage might be necessary to vindicate a woman's character, which might be whispered away in the cruel gossip of society after an engagement had been broken off. This was peculiarly a woman's action, and there could be no doubt that, in many cases, much injury was inflicted upon the woman by a breach of promise to marry, which it was impossible to compensate by money. Some persons, and amongst them a learned Judge now on the Bench, held, indeed, the opinion that the greater the scoundrel the defendant was, the less the woman who brought the action ought to recover damages, because she was fortunate in having escaped the marriage. In other actions, such as those for libel and slander, compensation was given for wounded feelings and loss of position in society; and he did not see why, in the case of actions for breach of promise, a scoundrel should not, after paying his addresses to a woman, and deserting her to marry a richer woman, be made to pay damages, as compensation for a bruised or broken heart, as well as any actual pecuniary loss she might have sustained.
§ MR. RODWELL
thought that the hon. and learned Member for Durham (Mr. Herschell) was to be thanked for having brought his Resolution before the House. The question must be determined on social, rather than on legal grounds. While supporting the Resolution, he regretted that his hon. and learned Friend had not concurred with him in bringing in a Bill upon the subject, instead of a mere abstract Resolution. The contract with which the Resolution dealt was not analogous to other contracts. The first foundation of an engagement of this kind was in "reciprocity." There should be a mutual return of affection; and his argument was that the moment that affection ceased on one side or on the other, it was for the good of both parties that 1881 the engagement should cease, and that there should be an end to a state of things which, instead of leading to comfort, would lead to discomfort, and to misery instead of happiness. These actions were sometimes brought for extortion, and sometimes to satisfy feelings of revenge; and he would like to know what sort of a wife the woman would make who would drag a man to the altar, with a suit for breach of promise in her hand, knowing that his affections were estranged? He had no sympathy with such a woman. Actions for breach of promise were not, in his opinion, productive of very much good; and the hon. and learned Member for Marylebone (Mr. Forsyth), in referring to the case of "Bardell v. Pickwick," seemed to forget the class of lawyer in whose hands Mrs. Bardell's case was placed. Half these actions were brought for reasons of extortion, and he (Mr. Rodwell) thought they ought not to be encouraged. He concurred in every syllable that had been littered by the hon. and learned Member for Durham; and although Byron and Dickens, and some of the minor poets, had been quoted, he had not heard one argument to satisfy him that these actions should be maintained.
said, he could not agree with the opinion expressed by his hon. and learned Friend the Member for Durham (Mr. Herschell) that these actions were, as a rule, brought solely for the purpose of extortion, or from improper motives. In discussing the question in that House, they must bear in mind that they were addressing a tribunal exclusively composed of men, who were all more or less interested in abolishing these actions. If his hon. and learned Friend had remained a bachelor, he believed he would never have dared to bring forward the Motion. It was said that only one Petition had been presented against the Motion; but the more important question was, how many were there in its favour?—and he should be surprised to hear of many. Only two cases of an exceptional character had been mentioned in support of the Motion. His hon. and learned Friend shrank from abolishing the action altogether; but said that it might be brought, if pecuniary damage had been sustained. What a mean proposition! No matter how much the girl's feelings 1882 had been wounded and trifled with, no matter how much her parents and friends had been annoyed—all was to go for nothing, unless she had lost a £5 note or a situation. It was surprising that such a proposition should be made in a House of Gentlemen. The dreadful case was put of a man who had been courting a girl for a long time, and then said he had lost all affection for her; and it was argued that no woman ought to seek to marry such a man. Of course, a girl of proper feeling would say she would have nothing to do with such a man; but still her parents, in certain cases, would not allow her feelings to be outraged in that way. The "big brother" had been alluded to—pity there was not more wholesome dread of the "big brother," who was restrained by law from inflicting chastisement, and duels were practically abolished. The only remedy left was to bring an action, in order to expose the conduct of the man, and vindicate the character of the woman. How often were counsel ashamed to say they did not care for damages, and that the main object of the action was to vindicate the character of the lady? In such cases, the action was very properly brought. Again, the deterrent effect of these actions had been lost sight of. But for the fear of them, how many promises would be rashly and inconsiderately given with the knowledge that they could not be enforced? how many times would they be given with a most improper design? It was known to many hon. and learned Members that in most of the cases of seduction that came before the Courts the injury had been done under a promise of marriage. Make such a promise of no value, and men would not hesitate to give it. No jury would ever find that a promise had been given, unless there were ample proof of such promise; the woman must be confirmed by independent testimony. The House ought to pause long before it abolished the action, which his own experience did not lead him to view with disfavour. It was an action little used amongst the upper classes, but in the middle and lower middle class it was most valuable. As regarded his own sex, he had known cases in which actions had been very properly brought by men. He was, some years ago, engaged with Sir Montague Smith in a case tried at Bristol, in which a man 1883 obtained £300 damages. The action was brought to clear a gentleman's character from a shameful charge that had been brought against him by the lady. He saw no reason why a man's character as well as a woman's should not be cleared in that way. For these reasons, and on the ground that no sufficient reasons had been given for abolishing the action, which, it was admitted, had existed for more than 200 years, he should oppose the Motion of his hon. and learned Friend the Member for Durham.
MR. STAVELEY HILL
said, he would say a few words upon this simply as a legal question. A contract was entered into between two parties, and the breach of that contract was fraught with serious injury to one party, if the other broke it heartlessly. He would give the most recent among many instances in his own professional experience. A father came to him and told him that a young man who was engaged to his daughter wrote coolly to her one day, and without any other reason, told her that he was going to marry another girl, because she was richer. He asked what he should do, and when he was advised not to enter an action, he said—"I must either punish the scoundrel by bringing an action against him, or I must break his neck." Well, the action was commenced, a sum of money was paid and an apology made by the man who had acted in such a heartless manner. He would say no more beyond giving that case, except to affirm that if the present action was taken away, some other remedy must be found—some means of punishing the scoundrel who had broken his promise in a heartless way, and of compensating the female who had been injured in her feelings and prospects in life.
§ MR. GRANTHAM
did not think that the arguments advanced justified any alteration in the law. He looked upon it as almost entirely a pecuniary question, because the girl often sustained a pecuniary injury, when no money had been actually expended by her. There were, no doubt, hard cases to be found, and cases where great imposition had been practised, as against the man; but hard cases made bad law, and, looking at the law as a whole, he thought it had worked well for the public. If a girl was engaged for five or six years, and 1884 then thrown over, she had lost almost three chances out of four of marrying, and that, probably, would be a great pecuniary loss to her, and if pecuniary damage was sustained the party was entitled to be compensated. It was chiefly because of the pecuniary injury that this law should remain, as it was for the public good, even although it might occasionally be used for purposes of extortion.
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)
contended that the proposition of the hon. and learned Member for Durham (Mr. Herschell) was a complete inversion of our jurisprudence; a breach of any contract, according to our ordinary rules of law, gave a right of action. He (the Solicitor General) denied that the action for breach of promise was the peculiarity it was alleged to be; the peculiarity lay in what his hon. and learned Friend proposed. He would like to know why such an inversion of the ordinary principles of jurisprudence was to be proposed, simply because the parties were man and woman? Suppose he combined to enter into partnership, the defaulting party would have to pay damages to the other adequate to the loss of partnership; and, besides the actual loss sustained, there might be a hurt to the feelings which could not be atoned for by any pecuniary compensation. Was right to be denied for a real and actual injury, because there was also another injury for which no compensation could be given? Pre-contract of marriage down to 1752 enabled the woman to go into Court and compel the man to marry her. But upon the abolition of that system by Lord Hardwicke's Act in 1753, one of the arguments used was that the injured party might still leave the damages to be assessed by a jury, if the contract was not kept. Another part of the question was the magnitude of the proposed change. There was hardly an Assizes at which an action of this sort was not tried; and his hon. and learned Friend seemed to assume that in every case the damages were improper. What did that involve? Was it to be assumed that Judges and juries were unfit to administer the law? It was said that this was an action generally brought for purposes of extortion. But the Judges and juries had the matter entirely in their own hands; 1885 and a Judge was able to set a jury right, if they were inclined to go wrong. His hon. and learned Friend said that this action was novel and indefensible. For his part, he (the Solicitor General) believed it was as old as, indeed, older, than what they knew as the Roman law, and that it was defensible on its merits. Where, as in this case, they had in various times and countries the same substantive legislation, it indicated that there was in it something answering to the sense of justice in all mankind. The ancient custom of Latium provided that if the agreement was broken for no just cause, the person in fault should be condemned to such damages as should represent the loss of marriage. That, though many centuries old, was an exact exposition of the English law at this moment. It was well worthy of consideration by an Assembly such as he was now addressing, whether a principle so ancient should be lightly got rid of. His hon. and learned Friend said that the French law took no notice of such actions. He thought his hon. and learned Friend was in error. It was said it had been decided that the non-performance of a contract gave the right to damages when it resulted in real prejudice to the other party. But what was the exposition of "real prejudice?" It included the right to damages on account of the wrong the other party suffered in public estimation. The real injury in cases of breach of promise was inflicted upon one sex only; and he, therefore, must confess he regarded with some apprehension the suggestion his hon. and learned Friend had made as to altering the law in a most serious respect. His hon. and learned Friend would leave a real injury practically without remedy at all. The proposal to limit the action was something like an insult, for it meant that if a woman had bought her wedding dress, or the bridal cake, she should receive compensation; but for that which was the greatest loss which could be inflicted upon her she was to have no redress. ["Divide!"] He had no desire to detain the House; but when a most serious innovation in our jurisprudence was proposed, he thought it his duty to express his opinions. As some hon. Gentlemen, who were noted for the extreme moderation of their own talk, on various occasions, were disposed 1886 to interfere with what he wished to say upon the subject, he should content himself with saying that he entirely disagreed with the proposition made by his hon. and learned Friend. He believed it would inflict a serious injury upon any State that a recognized wrong should be deprived by the Legislature of a remedy.
§ SIR HENRY JAMES
said, his hon. and learned Friend who had just sat down (the Solicitor General) seemed to think that by this Resolution it was desired to make an exception in respect of this particular class of actions. The action of breach of promise of marriage was an exceptional action. It was the only action in which damages could be recovered for wounded feelings. ["No!"] He said so; they might bring an action for injury to character, but that was different from wounded feelings. Day by day, in every condition of life, feelings were wounded by words spoken; but no damages could be recovered. Or take the case of a husband or wife who was killed. What damages could be gained for the grief caused to the surviving relative? But under the Roman law damages were granted. The learned Solicitor General said the damages were given for the loss that the woman sustained in consequence of not being allowed to enter into the married state—that was to say, they were to give damages to a woman for not being allowed to marry a man who was unwilling to be married. That could form no ground of damage to a woman, if she had her proper feelings—that she was not to be allowed to spend her life in the society of a man who had no feelings of affection towards her. The action was a punishment on the man who refused to make two lives miserable. A man might have other good reasons for not entering into marriage besides those connected with a commercial spirit. He might have found the temper of the woman not suitable to him; he might have found a temper with which nobody could agree; and they were punishing a man because he had the courage to say—"I think it better in the interests of both of us that our lives should not be spent in misery." He would support the Motion of the hon. and learned Member for Durham (Mr. Herschell).
§ COLONEL MAKINS
, having listened to the arguments of hon. and learned Mem- 1887 bers on both sides, whose opinions appeared to be about equally divided, ventured, as one of the public, to express his views. He thought that the only persons who would suffer, or at least the persons who would principally suffer, if the proposed change in the law were made were eloquent junior counsel, needy and speculative attorneys, and proprietors of newspapers. But, on the other hand, Judges and juries would be saved a great amount of time and trouble, and the public also would probably be benefited by the loss of much exciting and unwholesome reading. For that reason, he had no difficulty in voting for the original Motion.
§ MR. HERSCHELL
, in reply, said, he had no doubt that what the hon. and learned Solicitor General had stated about the French law had been laid down by certain Courts in certain provinces in France; but it had not been accepted by the best authorities as being according to the French law.
§ Question put.
§ The House divided:—Ayes 106; Noes 65: Majority 41.—(Div. List. No. 79.)
§ Main Question put.
§ Resolved, That, in the opinion of this House, the action for Breach of Promise of Marriage ought to be abolished except in cases where actual pecuniary loss has been incurred by reason of the promise, the damages being limited to such pecuniary loss.