[list-cumbria] Carlisle Patriot, 13 Mar 1824 - Cumberland Spring Assizes (35)

[Petra Mitchinson]

Saturday 13 Mar 1824   (p. 1, col. 5 - p. 4, col. 5, and p. 1, col. 4)

 

CUMBERLAND SPRING ASSIZES. 

 

NISI PRIUS. 

  

BREACH OF PROMISE OF MARRIAGE. 

HOBSON v. ISMAY. 

 

[continued] 

 

Mr. COURTENAY rose with much solemnity of manner.—Gentlemen of the Jury (said he), I have the honour to appear here on the present
occasion for the defendant, Miss ISMAY, and in asking from you serious and patient attention to the few observations which I shall
make, I dare say I ask no more than what any jury of Englishmen will be at all times ready to afford any afflicted woman who may
come before them under similar circumstances. I know, indeed, that, when you consider the delicate nature of the duty you have now
to exercise, you will come to it with a befitting calmness and impartiality. The contract on which we now deliberate, differs from
all others. On almost all other subjects, the decision turns upon principles or interests; the scale is held aloft, and a little
money on the one side or the other turns the balance, and for the most part satisfies the claimants. But the contract of marriage is
of so identical a nature that it admits of no division: what one loses the other cannot gain, and the loss and suffering of the one,
must be the loss and suffering of both. If a happy marriage is lost, the loss is mutual, and both have occasion to mourn; if an
unhappy marriage be avoided, well is it for both, and then, if I may so express myself, the loss of both becomes a gain. My
feelings, Gentlemen, in cases of this nature are, I confess to you, such as would lead me to put an end to these actions for lost
happiness, especially where a woman stands in the place of defendant. Were I on the jury, I would exercise the most rigid scrutiny;
I would not suffer any, however minute, circumstance connected with the question at issue to escape my most jealous observation. As
far as I am acquainted with them, I have generally remarked that they are brought, not to recover damages, or repair character, as
pleaded for the plaintiff in the present case, but to gratify the many feelings which arise out of disappointment. Hurt pride,
Gentlemen, often induces men to bring these actions when they have lost all regard for the former objects of their affection; and I
would say that no stronger proof could be afforded of complete estrangement of regard from the mind, than to see a woman placed in
the situation of a defendant. Gentlemen, look at the parties in this case. Who are they? Miss ISMAY is a young lady no more than
twenty years of age; one who has been living all her life in a small remote village with a widowed mother, a stranger to the ways of
the world, a novice to the wiles of man, unable to form an accurate judgment even of what concerns her most nearly; no father to
advise, no brother to protect her in case of emergency, her uncles residing at a distance, ready to assist, indeed, but necessarily
ignorant of much that is passing. Under these circumstances it is that she falls in accidentally, in February, 1823, with a young
man (as we have it in evidence) of agreeable person, attractive manners, and insinuating address—she falls in with this gentleman,
who keeps his race-horse, dresses gaily, having talents of no mean order, experienced in the world, and doubtless pretty intimately
acquainted with the ardency and susceptibility of the female heart. I will not say that his intention was to impose upon her
inexperience by artful and false pretences; it is enough for me that he had qualifications to take the attention of a disengaged
young woman, and we need not wonder that she was induced so speedily to lend her heart. These, Gentlemen of the Jury, are the
parties to the present suit. Let us see how the promise was obtained. With 'all his appliances and means to boot,' it does not
appear strange that he should have gained an influence; and you will observe that as early as July there is talk of marriage, a
promise is extracted. Would it not have been more consistent with delicacy, with right feeling, with honour, if, before he obtained
a promise of marriage, he had gone to Manchester and seen the lady's uncle, who, he well knew, was the only person to whom she could
look up for advice in a case of so much moment as the choice of a partner for life? Gentlemen, I answer, Yes. It does appear,
indeed, that he has been to Manchester after differences had arisen; but I think, and I know you will think, that he ought first to
have gone thither, to have made known his intentions, shewn his means, and explained his prospects. It would have been a more
consistent, a more respectful, and a more honourable course to have done so, than to go in secret and obtain a promise in a form
which she considers sacred; for she tells one of the witnesses that she durst not and could not retract, whatever might be the
consequence. Concealment carries suspicion along with it. What good motive could the plaintiff have for concealing his pretensions
from her uncle? I beg of you, Gentlemen, to ask yourselves this question—to put it solemnly to your minds. It seems that the young
lady has some small property; and small it is, as appears very clearly from the style in which she and her mother live. But this
circumstance is alone calculated to awaken your suspicion. He has none. I find no fault with him for that. Yet, that should have
induced him to have gone to the uncle and arranged a settlement. There is no evidence, Gentlemen, that any reference was ever
furnished by him as to his character. And as to the settlement proposed by his friend. What liberality was there in that? When was
it proposed?—only after differences had arisen, and the young woman was more inclined to hang back. O, but the settlement was talked
of. Yes! but by whom? By him to her friends? No. Through his friend to the lady and her mother. It is to these retired,
unsuspecting, inexperienced persons, that a settlement is talked of—persons whom the plaintiff himself tells us he could wind up
like an eight-day clock! And let us see the loss. Gentlemen, you must not confound loss of affections with the loss of her hand. I
apprehend that the loss of her affections are generally attributable to his own conduct. As to loss of property, you must look at
that as you look at all pecuniary matters, and give nothing from mere romance. I wish not to hurt Mr. HOBSON's feelings, and
therefore I shall not imitate him, and publish his correspondence to the world. I am not instructed to say a single word against
him. It does, however, appear to me that his conduct has not been satisfactory. As I have already said, he has no property. I don't
say that a woman should not marry any man without property; there are many deserving persons without the trappings of fortune, who
are a fortune in themselves. But the plaintiff cannot be said to be one of these, for he certainly has not been prudent nor
delicate. We find that he has debts to some amount: his most intimate friend speaks of £150; and we know not what means he has of
meeting them. The man who comes here to ask reparation for breach of promise of this kind should be prudent, free from reproach,
suspicion. And if you, Gentlemen, take his whole conduct into your estimate, I am sure you will think him entitled to very little if
any compensation. If you believe, which you must do, that the defendant would have displeased her relations by marrying him; that he
would not have been received by them as her husband should be received, what loss has he sustained? What prospect of happiness has
he lost losing such a marriage? He has met with any thing but a loss; and it is my opinion that he will hereafter come to believe
that Miss ISMAY has acted wisely for herself and wisely for him. By the law of England, the rights of women are given to the
guardianship of Juries. Women do not sit upon juries to protect the rights of women; the law puts all that is dear to them under
your care; and in order to form a true estimate of this cause, you must forget for a time that you are men, and enter into the
feelings of women. If you believe that her decision is an act of prudence; if you believe that her inexperience betrayed her into
the rash promise; if you consider that in the refusal of her hand she is actuated by a wish to preserve rather than to destroy his
happiness, your verdict will be but a nominal one;—and that such is the case there is ample proof; for while she relinquishes the
engagement from a sense of duty, it is subsequently clear, from the letters which you have heard, that she clings to her affection
for him with an intenseness painful to read. A new pursuit will soon do away the impressions upon the mind of a man, even supposing
that the plaintiff still has a particle of regard—will soon eradicate all former remembrance with him; but not so with my client:
she must brood in secret; her happiness is broken in upon; she has no means of wiping out the impression. I am sure, Gentlemen, that
you will not think this is a case for heavy damages. What would you have a woman do? If she does not, through his own faults, love
him as she did, would your [sic] have her, with a qualified affection, go and perjure herself at the altar? Would you have her vow
eternal love and fidelity with her tongue, when her heart tells her that she cannot yield perfect obedience? A woman who did so
would act impiously and shockingly in the sight of God, and in opposition to the best feelings which he has implanted in her nature.
I say, then, Gentlemen, that Miss ISMAY has acted kindly and wisely towards Mr. HOBSON. The marriage contract is so much a matter of
mutuality that one cannot be happy without the other. I would have you look to her last letters, and inquire if a happy marriage
could possibly take place under the circumstances therein developed. She could not, as an honest woman, pledge her troth where her
heart was not fully given. Gentlemen, she has certainly relinquished the contract; that is proved; and it is for you to give such
damages as you in mercy may be disposed to assess. My learned friend has told you a great deal about the character of the man. I
confess that I think he has overstrained his view of that point of the case. But you must take her character also into
consideration; you must not forget that her feelings and character are now, by the plaintiff's own act, the butt of ridicule. Weigh
all together—on one side reflect that he is a person of expensive habits—on the other, that she could only marry against the consent
of every relation she has—and you will at once see that the frustration of such a union is more a matter of joy than of regret. With
these remarks, Gentlemen, I commit the case to you, quite sure that you will come to a just conclusion: that as the loss is nominal
only, so you will consider nominal damages a full compensation. 

 

Mr. Justice HOLROYD, in summing up, said the letters clearly proved that a breach of promise had been committed; there was no doubt
of that fact; and in taking into consideration the question of damages, it would be requisite to weigh well all the circumstances of
the case, many of which were striking and peculiar. There was an evident willingness on the part of the lady to complete the
contract so solemnly made; but she had suffered herself to be influenced by her uncle and other friends, whose scruples the
plaintiff was unable to overcome, although he appears to have gone to Manchester for the express purpose. His worthiness or
unworthiness, and also the lady's virtues and former affection, all must be taken into account. He was clearly entitled to
recover—in what degree remained for the Jury to pronounce. 

 

The Jury laid their heads together about ten minutes, and then returned a Verdict for the plaintiff, Damages £50; Costs 40s. 

 

One hundred pounds, and payment of costs, had been repeatedly refused—even a short time only before the cause was called on. 

 

 

[to be continued] 

 

 

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