Excerpt, Wounded Feelings: Litigating Emotions in Quebec, 1870-1950. UTP for the Osgoode Society for Canadian Legal History, 2019.
Pages 3-7
In September 1869, a cause célèbre fascinated Montreal legal observers and the general public alike. Mary Sophia Grange sued wealthy auctioneer James Benning for the exorbitant sum of $40,000 for breaking off their engagement. The couple had been engaged for about three months and at first all seemed fine, despite the significant age gap (she was twenty-four, he was forty-seven) and Benning’s previous marriage having ended in divorce. They had even visited the studio of William Notman, Montreal’s premier society photographer, to have their portraits taken. When Benning heard rumours that his fiancée was in love with someone else, however, he changed his mind. He quickly sent her a letter calling off the wedding but expressing his wish that they might remain friends, and then hopped on a ship for England that same evening. The case was one of Quebec’s earliest breach of promise actions after Confederation and had all the makings of a news sensation (or a
Gilbert and Sullivan operetta): a sympathetic and attractive orphan as plaintiff, a rich and roguish divorced man as defendant, a ship’s captain as alleged paramour, love letters read out in open court, and high-powered legal counsel on each side. The lawyers wrangled over the morality of treating a betrothal like any other contract, but what the case really hinged on was whether there had been any damage. And for that, the focus was on Grange’s injured feelings: did they exist in fact, should the law recognize them, and what if anything were they worth?
Analysing those issues required the different participants in the case to move back and forth between different registers of discourse: subjective and objective, social and legal, narrative and normative. We cannot say for sure what Sophia Grange really felt. Her claim was an assertion of her emotions, but when turned (by others) into the dry lawyerly language of the declaration instituting her case, it became that she “hath been grievously wounded in her feelings, and hath, moreover, been greatly injured in her good name and reputation.” In her testimony, which was limited to written answers to agreed-upon questions, since at the time parties could not give oral evidence in support of their own case, she simply repeated this formula.
The others involved in the case were certainly not privy to her inner feelings, but all were ready to assess those feelings nonetheless, drawing on their own experiences of or assumptions about what a young woman who had just been jilted would have or must have or should have felt. The defence, of course, played down the claim. “The period of her engagement,” Désiré Girouard argued to the jury, “was so short that she had hardly time to enjoy the satisfaction of having formed it; and scarcely anybody can believe that so short an interval was sufficient to stamp upon her heart such profound affection for the Defendant.” He added, confidently asserting common knowledge, “In social life the quarrels of lovers are natural and ordinary events; they leave behind them no trace of material injury.” Witnesses disagreed. Grange’s guardian testified that after the break-up the formerly vivacious fiancée “was sick and looked downtrodden, she had no ambition, no spirit,” while a long-time acquaintance said, “She looked like death. I thought she was going into consumption.” Even one of the defence witnesses admitted that though there had been no material injury, “physically and morally” he was sure she suffered. Grange’s lawyer, Bernard Devlin, brought in his own version of common sense and played up to the men in the jury how natural for a woman were the emotions involved: “I cannot open plaintiff’s breast and tell what her inmost feelings were. I was not by her side when she received the insulting message of the 5th of June [breaking off the engagement]; but I can imagine the state of her feelings, and so can you, gentlemen.” The public in the courtroom – a more female than usual crowd – agreed with Devlin and briefly applauded his summation. A few days later, however, one “Hermione,” writing in a Trois-Rivières newspaper, claimed to understand Grange’s feelings while questioning her motives: “When the heart joins itself to a man worth $100,000, it is easy to understand that a breakup would cause a deep and quite bitter sorrow.”
As for the decision-makers, the jury put a value of $3,500 on Grange’s wounded feelings. On appeal, the Court of Queen’s Bench upheld both the verdict and the injured feelings Grange claimed. To do so, they had to balance legal rules with their own sense of the applicable social norms. In assessing an act such as Benning’s, Justice William Badgley wrote, “The usages and customs and feelings of society come in to give them a definition, and hence modern life does not consider an act such as this reputable, it does not admit it to be allowable, but stigmatizes it as a wrong to be redressed.” And righting that wrong required not just compensating the material outlays she had made in preparation of the wedding, but also redressing her “wounded feelings” as a result of the “social slander thrown over her by her promised husband’s declaration of refusal.”
Wounded Feelings is a legal history of emotions in Quebec, a study of cases in which people sued others over their emotional injuries. I use the fluid idea of moral injury to explore the often uneasy interactions between emotional subjectivity and the rational world of the law. Cases like Grange v. Benning highlight the messy but revealing ways in which life and law intersected. Plaintiffs who blamed their dishonour or grief or betrayal on the wrongful actions of another took their stories to lawyers who shaped them into narratives that were compelling but at the same time met the requirements of legal categories. On the other side, the defence tried to fashion its own account of why the alleged feelings were overblown or unreasonable or otherwise not actionable. Judges, in the end, had to apply legal frameworks that were ever evolving, shaped as they were by judges’ own understandings of the social norms that informed the rules. This back and forth between the subjective and the objective, between assertions of self-evident obviousness and counter-arguments of self-interested unreasonableness, provides a window into the cultural and social assumptions behind the law and at the same time sheds light on social understandings of emotions. In other words, this book is about the human dimension of law and the sometimes awkward fit between human stories of injury and the legal categories and recourses available at a given time and place. Hard cases may make bad law, as the adage goes, but for the historian they reveal points of fissure and slippage between a highly formalized legal system and society, as litigants, lawyers, and judges pushed at the edges of categories to try to accommodate unusual situations that did not quite fit.
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