Lewis v. Tapman

McSherry, C. J., delivered'the opinion of the Court. This a suit to recover damages for a breach of promise to marry. That there was an agreement of some sort between the plaintiff and defendant to marry, is certain; but whether that agreement was absolute or conditional, is one of the grounds of contention. It is insisted by the plaintiff that the defendant agreed to marry her within three years from a designated date; whilst upon the other hand it is alleged by the defendant that his promise was conditional, and that in no event was the promise set up by the plaintiff to be fulfilled until the expiration of three years from the time it was made.

We need not, though it would be quite entertaining if we did, refer to the evidence bearing on these controverted issues of fact, and we need not refer to it because the legal questions involved can be disposed of without quoting from the testimony. There is an inquiry ²⁹⁶ suggested at the very threshold, and arising for the first time in Maryland, that may as well be considered and settled at once. Upon the assumption that the contract to marry was in fact made with a stipulation that it was not to be solemnized until after the expiration of three years, does it fall within that clause of the fourth section of the statute of frauds which prohibits any action from being brought upon an agreement not to be performed within a year, unless the agreement bp reduced to writing and be signed by the party to be charged therewith ? • This is the question which the rejected prayers, interposed by the defendant at the close of the case made by the plaintiff and set forth in the ninth bill of exceptions, presents. A contract to marry was treated at common law, so Blackstone states, Book /, p. 433, “in no other light than as a civil contract;” but it is in reality something more.

Questions relating to marriage were from a very remote period cognizable only in the Ecclesiastical Courts, which had no authority to award damages, but imposed censures, as was supposed, for the welfare of the soul. It is curious and interesting' to trace the conflicts between these Courts and the Common Law Courts, and, in a measure, the Court of Chancery, in the efforts of the last-named tribunals to expand their jurisdiction, and correspondingly to restrict that of the former over these contracts. This expansion gradually grew until the last remnant of the Ecclesitical Court’s jurisdiction was=; wept away by 20 and 21 Viet., ch. 85, except as to the granting of licenses. As the Ecclesiastical Courts formerly possessed sole authority in questions relating to marriage (this was conceded by Lord Chief Justice Vaughan, 1 Carter C. P., 233), but as they had no power in cases of a breach of promise other than to decree a performance of the marriage (4 Bac.

Ab., Title Mar. .& Div. 530), which jurisdiction was taken away by 26 Geo. II., ch. 33, the Common Law Courts, after the adoption of the statute of frauds in 1676, began to entertain civil actions for a breach of a contract per verba de f uturo, and that ²⁹⁷ jurisdiction, Lord Chief Justice Raymond observed in 1733, “was a point not to be disputed.” Holt v. Ward Clarencieux, 2 Strange, 937. After considerable discussion it was finally adjudged that the two Courts could not act concurrently, but that if an appeal were had to the Ecclesiastical Court to compel a performance, the Common Law Courts could not hear a suit for damages and so e converso. The suit at common law was at first greatly opposed because the party had his remedy in the Spiritual Court.

But notwithstanding this it was resolved the party had his election of either remedy, and that by bringing an action at common law the remedy in the Spiritual Court was waived and released, “for now,” as remarked by Lord Chief Justice Holt, “ in lieu of performance of the contract he shall recover damages.” Collins v. Jessot, Holt’s Rep. 458. In another particular there was with respect to such contracts flat contradiction in the early cases. Philpot v. Wallet, 3 Lev. 65, decided in the thirty-fourth year of the reign of Charles the Second and five years after the statute of frauds had been adopted, was the first case which held that a promise to marry was within the other clause of the fourth section relating to contracts made in consideration of marriage. But this construction was departed from and overruled eleven years later in Harrison v. Cage, et ux., 1 Ld.

Ray. 386 ; and is no longer the law, either in England or in Maryland, Cook v. Baker, 1 Strange, 34; Ogden v. Ogden, 1 Bland, 284 . In the reign of Charles the First, the Court of Chancery evinced a disposition to assume jurisdiction to enforce the specific performance of the contract to marry, d'othill, 124, as cited in Camp. Lives of Lord Chan., vol. 2, p. 138 ; but it does not appear that the power was ever exercised. These conflicts of jurisdiction, these variant decisions serve to emphasize, what is otherwise perfectly apparent, that there has always been about the marriage contract that which renders it different from any other contract known to the law.' A recent writer thus describes that ²⁹⁸ difference: “ It has been frequently said in the Courts of this country that marriage is nothing more than á civil contract.

That it is a contract is doubtless true to a certain extent, since the law always presumes- two parties of competent understanding who enter into a mutual agreement which becomes executed, as it were, by the act of marriage. But this agreement differs essentially from all others. This contract of the parties ■ is simply to enter into a certain status or relation. The rights and obligations of that status are fixed by society in accordance with principles of natural law, and are ' beyond and above the parties themselves.

They may make settlements and regulate the property rights of each other; but they cannot modify the terms upon which they are to live together, nor superadd to the relation á single condition. Being once bound they are bound forever. Mutual consent, as in all contracts, brings them together; but mutual consent cannot part them. Death alone dissolves, the tie—unless the Legislature, in the exercise of a- rightful authority, interposes by general or special ordinance to ' pronounce a solemn divorce. ” Schouler’s'Dom.

Rel-., sec. ij. ' And Mr. Justice Story iii his Conflict of Laws, sec. ÍÓ8, through treating marriage as in its origin a contract of [natural law, proceeds in note 3 to remark: “ But it appears to me to' be somethifig moré than a mere contract. It is rather to be deemed an institution of society, founded upon - the consent and contract of the parties; and in this view it has some peculiarities in its nature, character, operation and extent of obligation, different from wha't belong to ordinary contracts. So Fraser while defining marriage as a contract adds : “ Unlike other contracts, it' is one instituted by God himself, and has itá foundation in'the law of nature. It is the parent, not the child of civil society.” 1 Fras.

Dom. Rel. 87: ' A learned American writer, Bishop on Mar. 'and Div. ffDa. ed.) sec. 18, not only pronounces for this doctrine, but ¿scribes’the chief embarrassment of American tribunals,' in question^ arising under the conflict of marriage and divorce laws, to ²⁹⁹ the custom of applying the rules of ordinary contracts to the marriage relation. But this is not all. Prior to the adoption of our constitutional provision prohibiting the Legislature from passing special laws granting divorces, it had been the custom of the General Assembly to divorce, by statute, from the bonds of marriage; and this Court held that such legislation could “be viewed in no other light, than as regular exertions of legislative power.” Crane v. Meginnis, 1 G. & J. 474 .

What other contract can the Legislature annul? Even the inhibition in the Federal Constitution which denies to a State the power to pass any law impairing the obligation of a contract, does not prevent the dissolution of the marriage contract by an Act of Assembly. “ It never has been understood,” said Chief Justice Marshall in the Dartmouth College case, 17 U. S-519, “ to restrict the general right of the Legislature to legislate on the subject of divorce.” Marriage, holds the Supreme Court in a much later case, is not a contract within the meaning of the prohibition in the Federal Constitution against the impairment of contracts by State legislation. Maynard vs. Hill, 125 U. S. 190 . It is true that many of the observations j ust quoted from the text-writers refer to the marriage relation or status ; and it is also true that there is a distinction between the contract of marriage and a contract to marry.

But the terms contract of marriage and contract to marry are used to express the same idea, though, perhaps, it may not be strictly accurate to so use them. There is no reason for distinguishing the contract of marriage, if by that term is meant the marriage relation, from all other contracts, that does not equally apply to the contract to marry, which precedes and is the foundation of the consummated agreement. As the contract of marriage or the contract to marry, treating them as identical, is so essentially different from every other contract known to the law, it cannot be assumed that Parliament by the use of the words “any agreement,” intended to include the contract to marry within the prohi ³⁰⁰ bition contained in the clause of the fourth section of the statute of frauds, which requires an agreement that is not to be performed within a year to be reduced to writing. As we have seen, no action was maintainable in the Common Law Courts on an agreement to marry when the statute was passed.

Such an agreement was obviously not one of the contracts then contemplated by the law-makers as being within the statute. The objects of a contract to marry are totally unlike the purposes to be accomplished by any other contract; the relation it has in view is wholly distinct from the relation which any other contract could contemplate ; the capacity of the parties to it to enter into it is far less restricted as to age than in any other agreement ; it can only be made between a man and a woman ; it has it origin in the natural law and is the foundation of society. All these considerations indicate that the statute was not designed to embrace it. Why should a contract of this nature be placed in the same category with one for the sale of goods or the performance of labor, and be made subject to the provisions of an enactment obviously intended to regulate suits on undertakings relating to the ordinary business and dealings in trade and commerce ?

Sir Frederick Pollock observed in Hall v. Wright, E. B. & E. 793, “I think that a view of the law which puts a contract of marriage on the same footing as a bargain for a horse, or a bale of hay, is not in accordance with the general feeling of mankind, and is supported by no authority.” The fact that parties to a breach of promise suit could not testify, until the 32 & 33 Vic. ch. 68 gave them the right to do so in England, made it exceedingly improbable that a specific contract to marry at a time more than a year from the date of entering into the agreement, could be proved at all, except in rare instances, particularly as the method of proving a contract to marry differs very materially from the mode of proving any other contract. The Parliament knowing, as it must be presumed that it did know, that it had not been definitely set- ³⁰¹ tied, when the statue of frauds was passed, that a suit at common law could be brought for a breach of promise to marry; it is scarcely legitimate to infer that a contract to marry, the precise terms of which were rarely, if ever, capable of exact proof, was designed to be included within this provision of the statute. Looking, then, to the nature of the contract to marry, to its origin, its antiquity and its objects, and having regard to the early method of enforcing it in the Spiritual Courts, and considering how distinct it is, in all the particulars we have indicated, from every other kind of contract which can be entered into ; and bearing in mind that it is, as Lord Robertson, a distinguished Scottish Judge declared, “ the very basis of the whole fabric of civilized society we are unwilling to say that it falls, or was intended to fall, within the term, “ any agi'eement” as that term is used in the statute of frauds. There were three American cases cited by the appellant’s counsel in support of the contention that a contract to marry, if not to be performed within a year, is unenforcible under the statute.

These were Derby v. Phelps, 2 N. H. 515 ; Nicholes v. Weaver, 7 Kan. 373 ; Ullman v.Myer, 10 Fed. Rep. 241. On the other hand we were referred by the appellee’s counsel to Brick v. Gannor, 36 Hun. 52 , and we have found Blackburn v. Mann, 85 Ill. 222 , which sustain the opposite view. But no English case was called to our attention, and after a diligent search we have discovered none on either side of the question. In Blackburn v. Mann, supra, the Court say : Contracts of marriage, although defined as civil contracts, are peculiar, and it is, perhaps, not entirely accurate to say they are subject to the same strict construction as civil contracts in relation to property.

Contracts of marriage, until a breach is shown that terminates them, may be regarded as continuing contracts by consent of the parties, and hence are, in no just sense, within the statute of frauds. The cases relied on by the appellant turned upon the construction of the State statutes involved, which are not identical in phraseology with the statute of ³⁰² 29 Char.

II

It is stated in Parsons on Contracts, vol. 3, p. 3, that although provisions substantially similar have been made by the statutes of this country, in no one State is the English statute exactly copied. But in Maryland the stat.ute of 29 Char. II is in force, not because there is any enactment transcribing it, but because of the provisions of Art. S of the Declaration of Rights, which declares that the inhabitants of Maryland are entitled to the benefit of such of the English statutes, in force in the State on the fourth day of July, 1776, as have been found applicable to their local and other circumstances. In Ullman v. Myers, supra, it was conceded by District Judge Wallace that “ As an original proposition it might be debated whether the statute of frauds was ever intended to apply to agreements to marry.

They are,” he went on to say, “ agreements of a prívate and confidential nature, which, in countries where the common law prevails, are usually proved by circumstantial evidence, and at the time the English statute was passed were not actionable at law, but were the subjects of proceedings in the Ecclesiastical Courts to compel performance of them.” But after all, “ a contract not to be performed within a year and specifically so agreed, is the only one within this clause.” Dennison, Chief Justice, in Fenton v. Emblers, 3 Burr. 1278. There was evidence in the cause that the contract to marry was to be performed within three years ; and there was no evidence of a specific agreement that it should not be performed within a year. According to all the cases if there was a possibility of its