BREACHES OF PROMISE
THERE should be no such thing as an action for a breach of promise of marriage. An action for promise of marriage would be in some ways preferable, for where damages ensue it is the promise that has caused them. Doubtless the hurt heart of one who is abandoned by her lover, especially after providing the trousseau and kindly apprising all her rivals, is justly entitled to sympathetic commiseration, but the pain is one that the law can not undertake to heal. In theory at least it concerns itself with actual privation of such pecuniary advantages as would have accrued to the plaintiff from marriage with the defendant, and such other losses as can be denoted by the figures of arithmetic. If the defendant were liable for the pain he inflicted by breaking his promise he might justly demand compensation for the joy that he gave in making it. Where the courtship had been long there might be a considerable balance in hisfavor. Nor is it altogether clear that he ought not to be allowed to file a counter-claim based upon the profit of getting rid of him.
But is the loss of a merely promised advantage a loss that ought to be a matter of legal inquiry and repair? In the promise to pay money, and in papers transferring property from one person to another, it is requisite that a “consideration” be expressed: the person claiming value from another must show that value was given. What is the consideration in the case of a marriage-promise? What computable value has the defendant in a breach of promise case received that the plaintiff could, or if she could would care to, estimate in dollars and cents? Would she undertake to submit an itemized bill? As a rule, the promiser of marriage receives nothing for which the performance of his promise would be an “equivalent” in the commercial sense. True, he obtains by his promise certain privileges which (it is said) he deems precious; but all the accepted authorities on this subject declare that in the exercise of these he imparts no small satisfaction to the person bestowing them.
Accurately speaking, then, a promise of marriage is a promise without consideration;and whatever merely sentimental injuries result from its infraction might justly be squared by a merely sentimental reparation. Perhaps it would be enough if the injured plaintiff in a breach of promise suit were awarded the illusory advantage but acceptable gratification of wigging the defendant’s attorney.
It may be said that the defendant’s equivalent for his promise was the lady’s tender of such services as wives perform for husbands—among which the peasant-born humorist of the period loves to enumerate such mysterious functions as “building the fire” and assisting to search for the soap in the bath-tub. But it must not be overlooked that this tender is itself only a promise whereof the performance fails, along with that of the one for which it is given in exchange: the fire remains unbuilded and the soap is lost. One unfulfilled promise is no better than another. Nay, it is not so good.
But if we are to have suits for breach of promise of marriage it can at least be so ordered that there shall be no question of proof. An act of the legislature is enough for that. Let there be a law that marriage engagements to be valid shall be in writing. This wouldwork no hardship to anybody, and would be a pleasing contrast to the law which doesnotrequire any authenticating formality for the marriage itself. If a man really wish and mean to marry he will not be unwilling to say so over his hand and seal, and have the declaration duly attested. The lack of such evidence as this should be a bar to any action. It is admitted that this rigorous requirement would be pretty hard on such ladies as rich bachelors and widowers have the hardihood to be civil to, and that it would deprive the intelligent juror of such delight as he derives from giving away another man’s property without loss to himself. Its advantage would be found in its tendency to prevent the courts of law from being loaded up with the class of cases under consideration, to the exclusion of much other business. The number of wealthy men increases yearly with the country’s prosperity, and they grow more and more unmarried. Under the present system they are easy prey, but the operation of despoiling them is tedious; wherefore worthy assassins are compelled to wait an unconscionably long time for acquittal. The reform that I venture to suggest would disembarrass the courts of the ambitious “ladifrend” andthe scheming domestic, and give the murderers a chance. As a matter of expediency, I think a man should be permitted to change his mind as to whom he will marry, as frequently as it may please him to do so; almost any change in the mind of a man in love must be in the direction of improvement.