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Decisions of the Nineteenth Century Tasmanian Superior Courts

Hawthorn v. Steel [1833]

marriage, breach of promise

Supreme Court of Van Diemen's Land

Pedder C.J., 11 May 1833

Source: Colonist, 21 May 1833 [1]

This was an action for breach of promise of marriage - Damages were laid at £1,000.

Mr. Gellibrand stated the case for the plaintiff, a young lady of 17 years of age, and niece to Mr. Jocelyn Thomas. The defendant was a Gentleman of wealth, pretensions, and stability, in the upper part of whose house the plaintiff with her mother and brother occupied apartments; the defendant and a maiden sister occupying the lower rooms. An intimacy between the two families commenced. Mr. Steel became enamoured of Miss Hawthorn, and paid his addresses to her. Mr. Hawthorn observing the marked conduct of Mr. Steel towards his sister, very naturally enquired of her what might be the meaning - the young lady immediately informed her brother that Mr. Steel had made honorable advances to her; and produced two notes from Mr. Steel, (which he would presently read to the Court), expressive of the most ardent and devoted attachment, and conveying in direct terms that he meant to make the lady his "lawful wife." This information was sufficient to awaken the feelings of a brother, who, in consequences, made a point of seeing Mr. Steel on the subject who, to his great surprise and indignation, stated that he was "not a marrying man," and that his correspondence with Miss Hawthorn was only "a lark". Subsequently to this i.e. on the 19th of January, Mrs. Hawthorn wrote to Mr. Steel, stating in very feeling terms, that the "peace of mind" of her daughter was at stake, and therefore requested that he would act up to his protestations; and also enquired if there were any objections, and what those objections might be? To this letter the defendant makes no reply, but, with shame be it said, raises and industriously circulates a report against the plaintiff's reputation, and compels her to come into Court to see damages at the hands of the Assessors! Such were the fact, on which the learned Gentleman commented as he went on. The first of the letters alluded to, was dated on the 3d January, 1833, and ran thus:-

"My Dear Sarah, - I hope I will have the great gratification of meeting you in the garden to-night - I do long so much for a little of your sweet company, and my foot is so bad, I am not able to walk to the paddock. I am quite devoted to your kind affection. - Your devoted lover,

"Michael Steel".

The other letter was dated on the 7th January, and was as follows:-

"My Dear Sarah, - I am sorry I cannot accompany you to Sandy Bay to-day; but you have all my affections, and I do intend to make you my lawful wife. - I am your affectionate lover,

"Michael Steel"

Mr. Gellibrand continued, that these letters, (written exactly in the tender strain which he should expect from Mr. Steel), having been placed in the hands of Mr. Hawthorn, he was induced to make some further enquiries of Mr. Steel, whose reply was "what is it to you?" Mr. Hawthorne rejoined that having no father, he was the natural protector of the girl; that he had Mr. Steel's letters, and that he was determined that her feelings should not be trifled with. To which Mr. Steel said, "it was all a lark, I am not to be bounced into any thing; and if those letters compel me to marry your sister, she shall not be the gainer of one shilling by me, as I will make over all my property." The result of so unequivocal a refusal to fulfil his engagements, was this action. In conclusion of his eloquent address, Mr. Gellibrand made use of language to this effect, "call him (the defendant) a gentleman - a man of honor? - he is there before me, and I say it to his face, that if he possessed one spark of honor, gentlemanly feeling, or humanity, he would never have treated this poor girl and her widowed mother as he has done. Had the defendant been a man of feeling, he would have never acted thus, to a widow and her young daughter, who were residing in his house, a circumstance of itself sufficient to have engaged any one possessing a spark of humanity to protect, rather than trifle with the affections of, a girl so critically placed. But not satisfied with this injury, not contented with destroying the peace of mind of an innocent and unprotected female, under the pretence of its being "a lark," he even dares to come into this Court with the intent, which he understood, of injuring her reputation. This was the defence which he understood was intended; should it be set up, the learned Gentleman would expect exemplary damages.

Mr. John Hawthorn, brother to the plaintiff, deposed that his mother and sister arrived in the Colony in October, 1832, from which time until February last, they resided in the house of the defendant; they occupied the upper part of the house, Mr. and Miss Steel the lower. Witness, his mother and sister, were in the habit of visiting Mr. and Miss Steel, but the latter were not in the habit of visiting them. In about two months after they had been at the defendant's house, observed the particular attention paid to his sister by the defendant, but made no remarks to his sister on the subject at that time. On one occasion, on a Sunday afternoon, went with his sister, Mr. Steel, Miss Steel, and Mr. Lyon, to the Government Garden; the attention of the defendant to the plaintiff was very marked upon that occasion. On their return home, they went into Mr. Steel's parlour and took wine. On the 17th of January, witness was informed by his sister that Mr. Steel had written to her that day, and shewed him a letter (produced and read, the same which is dated 7th January, as above). On the following morning, or it might be the same evening, plaintiff gave witness another letter, which was dated on the 3d January, (produced and read as above). Witness desired his sister to refer Mr. Steel to him upon the subject, but did not speak to Mr. Steel about the letters. Witness waited until the 19th expecting to hear from Mr. Steel; but not having heard from him, he sent for him on the morning of the 19th, when he told defendant that plaintiff had mentioned to him defendant's intention of marrying her, and that witness had two documents in his possession, in one of which defendant stated that he would make the plaintiff his lawful wife. The defendant appeared embarrassed, and after some hesitation said, "the fact is, I am not a marrying man." "Witness felt much astonished, and enquired why he wrote in such a manner to his sister, if he had no intention of marrying her. Defendant replied, "if I have done wrong. I am sorry for it, and will make an apology - but I never had any idea of marrying your sister; what I did was only out of a lark," Witness reproached defendant with having acted dishonorably. Mr. Steel said, "what have you to do with it?" Witness said he was her brother and natural protector. Defendant said he would not be bounced or frightened into anything. On the 31st January, defendant told witness if that document (alluding to the letter of the 3d January) compelled him to marry his (witness's) sister, he would dispose of every thing he had, and not leave a shilling. Some time after this, witness wrote to defendant a letter, which his mother signed, requiring Mr. Steel to fulfil his engagements; understood distinctly that defendant refused to marry his sister, in his conversation with him on the 19th; frequently took tea with defendant between 7th and 19th. Did not take any particular notice of the conduct of the parties. It was such as would have excited his attention, if he had not known of the correspondence.

Cross-examined by Mr. Horne. - Mr. Steel was only an occasional visitor before he hurt his leg. "The family never visited us." Thinks Mr. Steel came once to take witness's sister out. The letter signed by Mrs. Hawthorn, was dictated by Mr. Cartwright, with a view of commencing legal proceedings; took legal advice the day after he got the note from his sister; always heard that Mr. Steel was a rich man; was of that opinion when he went to Mr. Cartwright; the walk alluded to, was the only one plaintiff took with the defendant; cannot recollect particularly what transpired that day. (Mr. Horne here, with the greatest gravity, asked the witness, since his memory appeared bad, if he could recollect what day of the week that Sunday was, which convulsed the whole Court with laughter.) I was wrong in the day I went to Mr. Cartwright; I now perfectly recollect it was on the 19th; I made application through Mr. Torlesse, who took Mr. Steel's letters to Mr. Cartwright; Mr. Steel's conduct to his sister was more pointed than that of Mr. Lyon, the day they went out together; was not aware of any rupture having taking place between his family and the Steel's, prior to the 15th; witness's sister does not now reside with her mother and witness; she left them in February, and went to reside at Mrs. Donahoo's; she left in consequence of having some words with witness about this affair; she did not give him a satisfactory explanation, and he grew warm, which offended here, and she left the house; a note being shewn to witness, he stated it to be his sister's hand-writing.

Re-examined. - Never spoke to Mr. Cartwright professionally between the 7th and 19th, nor before the rupture.

Mr. R. L. Murray was called to prove that Mr. Steel was a rich man.

This was the case for the prosecution.

Mr. Horne appeared for the defence; and, in a most luminous address, combatted Mr. Gellibrand's remarks with great ingenuity. The learned Gentleman deprecated the unfair advantage taken by the Counsel for the plaintiff, in anticipating his probable defence, calculated as were the remarks of his learned friend, to prejudice the Court against the defendant. He trusted, however, that no such prejudice remained on the minds of the Court and assessors, as (he might say with Lord Kenyon) "character was the point at issue." He regretted the painfully delicate task which he had to perform, but his cause was good. This case was perfectly untenable. - In his opinion, the plaintiff was really making a trap for catching goldfinches, by drawing them in silken strings; his client had certainly got one leg in, but he meant to take care of the other. There was no proof of any injury; it did not appear in evidence that the young lady was at all shocked at the perfidy of her lover; it did not appear that it even cost her a head-ache; on the contrary, she reduces her affections to the standard of pounds, shillings, and pence, and declares she will have it out of his pocket. He would call witnesses, who should prove that the defendant was not residing in town until the latter end of December, at which time he sustained an injury in his leg, which caused his return home. It was then that this young lady fell violently in love, a lady of 17 with a Gentleman of 50! The plaintiff at such an age, just bursting into life and womanhood, as her peace of mind ruined, because this Gentleman does not follow up a protestation made in joke. Was not this ridiculous? There was one point in the case which the learned Advocate contended must be a bar to the action; there was no evidence before the Court that there was a mutual contract; could his client have recovered, had the plaintiff broken off with him? Moreover, he would submit that the action could not be maintained, because there did not appear to be a demand and refusal. On these grounds he called upon the Court to nonsuit the plaintiff.

The Chief Justice could not allow a non suit upon such ground.

Mr. Horne. - I beg that a note may be taken of my objections.

The Chief Justice. - Certainly.

Mr. Horne regretted he was compelled to go into evidence. It would be a high source of gratification to him to throw up his brief and not enter into evidence, which he approached with the greatest reluctance - but he had no alternative, he must sacrifice his feelings to the duty which he owed to his client - and he would therefore read a letter from the young lady - it was without a date, and ran:-

"My Dear Sir, - Your note to me was very flattering. I think you may come up stairs and pay me a visit, as I pay you so many. I have something of importance to communicate to you in the presence of my mother. Come up and pretend to ask for George, and I will ask you in. - Yours, for ever," 'Sarah Hawthorn"

This was a novel mode of courtship, indeed, upon which to found such an action as the present. The lady had paid the gentleman a "great many" visits, and requested him to pay her one in return. After a few further remarks he called.

Miss Jane Steel, sister to defendant, who deposed to having invited the plaintiff to tea with her several times prior to the 12th January; she had not done so since, because the conduct of plaintiff was not what witness could wish; never saw the defendant make any advances to Miss Hawthorn; he never mentioned to witness his intention of marrying her; Mr. Steel never mentioned Miss Hawthorn to witness before this prosecution commenced; there was "not a bit of love between them."

Cross-examined by Mr. Gellibrand. - Q. - You are quite sure there was no love? A. - None. Q. - Did your brother never say to you what a nice wife his dear Sarah would make him? A. - Never. Reads - "My Dear Sarah, I hope to have the gratification of enjoying your sweet company, &c. - I am quite devoted to your kind affections." Q. - Is not there a little bit of love there? A. - I am not competent to say. Q. - "A little oozing out?" A. - "A gentleman will say any thing." This badinage was carried to great length in the cross-examination of his witness, but nothing of importance to the case was elicited.

Mr. Matthew Goggs was next examined by Mr. Horne, and adduced evidence, which the verdict given fully evinced that the Assessors did not credit. This gentleman gave his evidence throughout, in a most disrespectful and unbecoming manner, so much as to incur the censure of the Court more than once. The nature of the evidence was such that we decline publishing a word of it, as it does not in any way affect the case, being nothing more than inuendo, which is not evidence at any time.

Richard Cock. - lives at Mr. Steel's is one of the family. Never saw any advances made by Mr. Steel to Miss Hawthorn. On the 11th or 12th of January, remembers Miss Hawthorn being at Mr. Steel's; witness had weak eyes, and could not see what passed; heard Miss Hawthorn laugh immoderately ; Mr. Goggs not quite so much; Miss Steel requested Miss Hawthorn to come and sit by her, as she was ashamed of her conduct. In his cross-examination, this witness stated, that the plaintiff took every opportunity of being with the men in the kitchen.

Thomas Goardhand, assigned servant to Mr. Steel, deposed that he had some words with Mr. Hawthorn respecting a pair of ear rings which he, (witness) had given to plaintiff; had heard Miss Hawthorn say that she had a letter from Mr. Steel which she would make him pay for, but begged witness not to say any thing about it; plaintiff said she would sooner marry any prisoner than marry Mr. Steel.

Cross-examined. - Miss Hawthorn cooked the victuals in the kitchen for the family; the stairs led down to the kitchen.

Mr. Samuel Wells deposed, that he and Miss Hawthorn were verbally affianced, having mutually agreed, in the presence of Mrs. and Mr. Hawthorn, to be married in three years; witness considered himself bound by that engagement and expected to be married at the expiration of three years. Mrs. Torlesse objected to the match; he was not to see Miss Hawthorn during three years. There was no condition that witness should be able to maintain a wife with respectability.

Mr. Hawthorn recalled. - Was aware of an intimacy between the plaintiff and Mr. Wells; the family wished to break it off; the parties had agreed to remain single for three years, but were not promised to each other. If they did not alter their minds in the mean time, the family were to consent. Witness remembered speaking to Mr. Steel's servant respecting a pair of ear rings, and asked him how he came to give them to his sister; he replied that he gave them to her to purchase; witness enquired about them, and was informed by his sister, that her mother desired her to have nothing to do with them; he had heard nothing of them since; and that was all he knew about them.

Mrs. Torlesse, Mrs. Peet, and Mrs. O'Donahoo, were then severally called as to Miss Hawthorn's character, in which they all spoke in terms of the most unqualified approbation.

Mr. Gellibrand replied at great length, going through the evidence, and appealing to the Assessors, as fathers, as brothers, as men, on behalf of the lady. To the defence set up, he called their particular attention, as aggravating the case, and prayed exemplary damages. On the conclusion of this address, a burst of applause ran through the Court, which was noticed by his Honor in terms of dispraise.

The Assessors then retired, and after an absence of an hour and twenty-five minutes, returned a verdict for the plaintiff - damages £200 and costs.

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[The trial, Hawthorn v Steel, for breach of promise of marriage, reported as above, we consider to be one of those cases where the private conduct of an individual affects the public interests of the community. It is not our intention, nor our wish to inflict unnecessary pain upon any one; but we feel it a duty which (however painful) we owe to society, to hold this case (the first of the kind which has occurred in this Colony,) up as an example of the sacredness of female delicacy, and the jealousy with which any violation of it is viewed by the law - a warning to other Gentlemen not to indulge in "a lark," which may possibly cost an innocent and confiding female her peace of mind. To gain the affections, and disappoint the hopes of a young and artless woman, is an act of the most wanton cruelty; but an attempt to sully the fame and impeach the conduct of a lady, at the tender age of 17, is an act of which we can scarcely suppose any but an incorrigible libertine capable. The line of defence adopted in our opinion, was a greater crime than the grievance for which the action was brought; especially when we take into consideration the prejudicial effect upon the morals of society it was calculated to produce, if it had happened to have fallen into the hands of some Advocate, less elegant and less delicate than Mr. Horne. Nothing but that Gentleman's extreme delicacy in handling the question, could have averted the consequences of thus adding public insult to private injury; a circumstance sufficiently aggravating in our judgment to warrant even greater severity than that with which it was most justly visited. In offering these observations, we beg most distinctly to be understood as speaking upon a broad and general principle. We disclaim any prejudice in favour of either party - we only look at a gentleman and lady in the delicate light of affianced man and wife. We look at the Gentleman violating his engagement, and in defence endeavouring to asperse the fame of her whom he had promised, may perhaps vowed, to make his "lawful wife." In this light, we view the case before us, and deem the circumstance one which every parent, every brother, every well-disposed individual must regret having taken place.]

Notes

[1] The assessors were William Sorell and J.H. Moore, esquires.

For editorial comment, see Hobart Town Chronicle, 14 May 1833; Hobart Town Courier, 17 May 1833 (the latter noting that the court was crowded from 10 in the morning until the verdict was delivered at 9 at night). For Steel see G. and H. Dow, Landfall in Van Diemen's Land: The Steel's Quest for Greener Pastures, Footscray: Footprint, 1990.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania