Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. XI.

Sponsiones ludicræ. - Game Debt. - Premium for procuring a Wife. - Private Lotteries.

Jean Thomson, Spouse to George Dallas, Writer in Edinburgh,
v.
Hew Mackaile, Writer in Edinburgh

Date: 14 February 1770
Case No. No 64.

A marriage brokage obligation contra bonos mores, and not actionable.

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Hew and Walter Mackaile, father and son, on the 16th March 1769, granted an obligation addressed to George Dallas, which, after a long preamble, subsuming the intention, which was to provide a suitable wife for the son, concludes thus:

“I hereby promise to pay to you, or order, at your house in Edinburgh, three days after date, for behoof of Mrs Dallas, your spouse, 21s. Sterling money, for the trouble and time she hath hitherto bestowed in our business within mentioned; as also L.9:9s. money foresaid, three days after the date of the contract of marriage that shall, by the providence of God, be voluntarily entered into and signed and delivered betwixt our son and a young gentlewoman, described as within.

(Signed) Hew Mackaile.

Walter Mackaile.”

By the assiduity and management of Dallas and his wife, a marriage was accordingly brought about betwixt Walter Mackaile and a young woman, not unsuitable in rank, but who had no fortune, and without the consent and approbation of her own parents. The pursuer then brought an action upon the obligation before the Magistrates of Edinburgh, who at first refused to sustain it; but afterwards, in respect that the marriage had taken place from the suggestion and recommendation of Dallas's wife, and that the person was a virtuous young gentlewoman of good reputation and character, found the defender liable.

The cause having been brought into the Court by advocation, it was

Pleaded for the defender, That this was an illicit contract, a pactum turpe et contra bonos mores, and upon which no action could lie. For,

1mo, In order to constitute what is called in law a turpe pactum, or contra bonos mores, it was not necessary that there should be any natural depravity or inherent turpitude in the transaction; the legal idea of the phrase implied no more than that the contract was prohibited by law, or discouraged by the Judge, on account of its dangerous or pernicious effects on society. Of this there were many instances among the Romans; as the pacta successoria, or pacta de hæreditate viventis; the pacta de lite, and the pactum medici cum ægroto; and, in this country, the purchase of depending pleas by a member of Court, being productive of bad consequences, was prohibited by the Legislature.

The contract in the present instance was still more deserving of being reprobated. To sustain an action of this nature would give encouragement to interested and designing men to earn an infamous profit, by destroying the peace of families, by rendering children undutiful to their parents, and leading them to ruin unperceived till it was past redress.

2do, By the civil law, a stipulated reward of this nature, which was termed proxeneticum, was not recoverable in the ordinary course of procedure; and it appears even to have been regarded in the same light as a pactum de lite, and of course reprobated by law. If such rewards were recoverable at all, it could only be by the cognitio extraordinaria; and as this took place only where there was no stipulation express or implied, it proved that such demands had no foundation on contract or agreement. Such appears to have been the doctrine in the earlier periods of the Roman law. L. 1. D. De proxenet. Pararit. ad 1. 50. tit. 14. D. L. 2. 3. D. De proxenet. L. 1. §. 7. 12. D. De extraord. cognit. And though, by the later laws of the empire, stipulations for the proxeneticum were authorised, they were laid under such restrictions as to guard against their dangerous consequences. L. 6. C. De sponsalibus, &c.

3tio, Though there had been few decisions in this country that bore directly upon the point, the principle of such as had occurred was directly adverse to the legality of such a stipulation. 9th Feb. 1676, No 52. p. 9505; Sir Michael Stewart contra Earl of Dundonald, No. 61. p. 9514.; and in one precisely upon this point, Sir William Campbell contra Banes and Stewart, No 53. p. 9505., though the question was not determined, very little countenance seems to have been given to the action.

In the law of England this subject was well known; and marriage brokage bonds, as they were called, not only discountenanced and set aside, but the procurement of marriages in that way held to be an indictable offence. Jacob's Law Dict. voce Marriage; Bacon's Abridgement, tit. Marriage and Divorce; Abridgement of Cases in Equity, p. 90.; 1. Vernon, 402.; 2. Vernon, 652.; Shower's Cases in Parliament, p. 76. Executors of Thomas Thynne versus Potter; and in the case of Earl Powis, the argument never was put upon the ground of there being a marriage brokage contract; which, if there had been any foundation for it, would not have been overlooked.

Answered for the pursuer:

1mo, That marriage ought to be free, was a proposition which admitted not of dispute; and that whatever tended to destroy that freedom ought to be avoided. But when it was considered from what quarter the liberty of choice and freedom were in danger, and what sort of interposition was most dissonant to that principle, an obvious distinction occurred, favourable to the doctrine the pursuer maintained. Wherever a father, guardians, brother, or other near relation, who were supposed to have a natural influence and authority, stipulated a reward, either for giving their consent, or for influencing or procuring a marriage; such agreement, as it was truly destructive to the freedom of choice and inclination, might very properly, as it was a betraying of trust, be called a turpe pactum, and as contra bonds mores declared void. But the case Was very different here; for the pursuer had no connection with the young lady, or with either of the parties; she had no authority over either, nor any farther influence than that of mere advice and commendation. As she was not therefore in a situation to exert any improper or undue means upon the inclinations of either party, so far from putting any restraint upon their choice, she in fact contributed to the indulgence of their mutual wishes.

There were perhaps very few marriages which were not in some measure brought about by the intervention of third parties; and if it be contra bonos mores to interpose when a reward was promised, it must, upon the defender's principles of the infringement of freedom, be equally the same, when the interpositions proceeded merely from friendly motives; so that the argument maintained, by necessarily going too far, and leading into a manifest absurdity, was truly devoid of just or legal foundation.

2do The determination of the question was affected by no precedent in the law of this country, or decision of the Court. The Roman law was clear on this head, ‘Proxenetica jure licito petuntur;’ and as that law had always been considered as a part of our own system, it was more to be regarded than the laws of our neighbouring country, which with us had certainly no authority. In judging of this case, the Court was bound by the laws of no nation whatever; as the question, being one of general and natural law, fell to be determined by those principles which were most favourable to matrimony, and most conducive to the happiness of mankind.

Upon advising informations, the following judgment was given:

“Find, That the offer undertaken by the pursuer, in terms of the missive pursued on, dated 16th March 1767, was contra bonos mores; and therefore find, that no action lies upon the said missive; assoilzies the defender, and decerns; and finds expences due.”

Lord Ordinary, Kames. For Thomson, James Grant. Clerk, Kirkpatrisk. For Mackaile, Geo. Fergusson. Fol. Dic. v. 4. p. 27. Fac. Col. No 21. p. 51.