Skip to main content
Hide Articles List

8 articles on this Page

HUiropolitau (iksstp.





---------_.-THE YELVERTON…


THE YELVERTON CASE. This case, which has been so long litigated in various courts in England, Scotland, and Ireland, came before the House of Lords on Thursday morning in last week upon a very curious point. The question of a marriage between the parties as established by evi- dence having been decided by their Lordships in the previous appeal adversely to Miss Longworth, or, as she still claims to be, Mrs. Yelverton, she applied to the Court of Session in Scotland to refer the matter to the oath of the respondent, the Hon. Major Yelverton. The origin of probation by oath under the Scotch law may be traced to the Roman law, and, indeed, is traced by Stair to more authoritative sources, and its competency in certain cases is fully admitted by the law of Scotland. It is an appeal to the conscience of the adversary, chiefly resorted to as a last resort, when ordinary proof has failed in establishing a fact impor- tant to the just decision of the question at issue. It is a singular fact that in scarcely any instance has a Court been unanimous in rejecting the claims of the appellant. Owing to its having transpired that the appellant would argue her case in person, the bar of the House was crowded, a considerable number of ladies and members of the Bar being present. The appellant, who was attired in a lavender moire- antique dress, trimmed with black, a black lace shawl, and a black bonnet of fashionable dimensions, ad- dressed their Lordships in a firm, clear voice, which became loud and impassioned when she adverted to the unfortunate position in which she was placed by the conflicting decisions that had been given on her case. The story of the case will be in the recollection of the public, and therefore it is unnecessary to do more than to give the following brief statement of the cir- cumstances immediately leading to the present appeal which we extract from The Times:— The appeal was brought against a decision of the majority of the judges of the First Division of the Court of Session, pronounced in two conjoined actions involving the question whether the appellant was the lawful wife of the respondent. In June, 1859, the respondent raised an action to have it declared that the appellant was not his wife, and that he was free of any marriage with her. The second action was raised in January, 1860, by the appellant, who sought to have it declared that she was his wife, and that they were lawfully married persons. These two actions, which sub- stantially involved the same question, were conjoined. The Lord Ordinary in July, 1862, found that the appellant had failed to establish the fact of a marriage, and decided in favour of the respondent in both actions, declaring the appellant liable in damages and expenses. That decision was, however, reversed by the majority of the judges of the First Division of the Court of Session in December, 1862, who found that the appellant was the lawful wife of the respondent. Against that decision the respondent appealed to the House of Lords, who, by a majority, after hearing very elaborate arguments, which lasted several days, reversed the judgment of the Court of Session, and pronounced a decree in terms of the conclusion of the summons of "putting to silence at the respondent's instance, but gave no damages or expenses. The cause having been remitted to the Court of Session, the respondent presented the usual petition to have the judgment applied, but was met on the part of the appellant by a note craving the Court to supersede con- sideration of the respondent's petition, and allow her to put in a condescendence of res noviter, to be received and added to the record, and remitted to probation. The res noviter was in substance that a person named Sarah Mallins, now dead, had, in July, 1862, stated to the Rev. Mr. Campbell, an Irish clergyman, that she had heard the respondent acknow- ledge to his brother, the Hon. Frederick Yelverton, who was also dead, that he had married the appellant. On consider- ing these applications the Court of Session, in December, 1864, pronounced the first interlocutor now appealed against, refusing the application, and applying the judgment of the House of Lords. The appellant then presented a petition praying the Court to refer the whole cause to the respondent's' oath. To that petition the respondent objected on two grounds. In the first place he pleaded that the cause re- ferred to his oath contained a charge of bigamy against him, and that he could not be compellell to state upon oath whe- ther he had been guilty of bigamy or not, and, secondly, he pleaded that not he alone was interested, but that Mrs. Forbes, a lady whom he married on the 26th of June, 1858, was also interested, and that her interests could not or ought not to be trusted to his oath. A majority of the judges of the Court below decided this point also against the appellant, and pronounced the second interlocutor appealed against. When the case was called on for argument on Thursday the appellant said that her counsel was detained in Edin- burgh upon important business, and would be unable to argue the case on her behalf. She therefore proposed to argue the case herself. She then proceeded to read passages from her printed case and the judgments of the Court below. In commenting upon the judgment of the Lord President, she said she failed to discover any prominent reason advanced by that learned judge why a general rule of law should be stayed on this occasion save the one so forcibly put by his Lordship—namely, that Mrs. Forbes would not like it were she asked;" but even, with his vast learning, he admitted that he knew no precedent for such a question being put. It would surely be the advent of a curious state of matri- monial arrangements if the second wife were permitted to raise her hand and bar the investigation of a prior marriage; yet, if the argument of the learned judge was good for anything, it was good for that. "But," said his Lordship, "she has the last judment in her favour." Did that reason meet the case? If so, upon the same ground, it should have been equally competent for the first wife, when possessed of a judgment in her favour, to have raised her hand and have stopped further proceedings. "But," said his Lordship, Mrs. Forbes was married in a church in facie ecclesice, and we must support this particular form of religious ceremony. "Oh! my Lords," said the appellant upon this point, "I should like to see a little less specialistic ritualism, and little more religious adherence to the immutable and ever lasting law of God. That Major Yelverton at two differen. alters, in two different churches, but in presence of the one God, solemnly bowed himself, and took two different women to love and cherish till death did them part, all within the short space of a twelvemonth, has been proved beyond yea or nay but one was in Scotland, the other in Ireland; one was a Catholic and the other was a Protestant altar- that was the only tangible difference. We Catholics are not Fire Worshippers, or followers of Vishnu; we are Christians, and adore the same Christ Saviour, and desire to follow his teaching in respect to being the wife of one husband. Is not this litigation as irksome to the one lady as the other? Is the expense not as great to the unfortunate lady dragged into this cause by Major Yelverton-for I have to state dis- tinctly that this is purely Major Yelverton's action-that there was no action pending against him when this was in- stituted, and no proceedings have been raised against him for five years that he was offered the withdrawal of any further demands, or claims, or litigation, after the Irish trial, but he has chosen to pursue this most revolting and disgraceful of actions to the feelings and honour of a lady— an action which is a disgrace to the stutute-book of a civilized lard. True that your lordships, with the delicacy of Christian gentlemen, did not grant the full solatium prayed for by the respondent. True that your Lordships put your veto upon the revolting and barbarous spectacle of a lady being fined, prosecuted, and despoiled of her substance and her just earnings for the only reason that she maintained before God and man the assertion and proof of her untar- nished honour, because she refused to sully her breath of life by owning, even under the dastardly torture of a 501. penalty, she was other than a virtuous wife. This appeal to your Lordships' House would not have taken place had the respondent not refused to depone on oath, when, if his conscience would have allowed him to depone negatively, it must have been conclusive; nor does it seem more pertinent to advance the delicate sensitiveness of a man's feelings whose reckless want of it brought down upon him in the Dublin court the bitter hisses of his fellow-countrymen For seven long years had her claims been bandied about in various courts in the three kingdoms; they had been sub- mitted to eighteen judges, and handled by nearly a hundred lawyers without any unanimous decision being arrived at "It is not my intention," continued the appellant "to trespass upon the time of your Lordships by a recital cf my bitter wrongs and unprecedented sufferings for years, but when the Scotch judges devote arguments to the pleading in TYiisBTicoTdiQt for Major Yelverton, and exercise the dis- cretion of the Court in his behalf, it gives me the right to plead before this Court, the highest tribunal of equity, that the Scotch judges had done well to be just before they were generous, that they had done well to remember the out- raged, unprotected stranger standing at their bar for the measure of justice, waiting for several long years in the agonizing alternations of hope and despair-o-ne moment pronounced to be a lawful wil* aad the next degraded to the lowest depth to which a woman can fall when guilty. Reft of home, of husband, and of honour, cast ruthlessly on the cold and blighting world, desolate yet undaunted, she has been drifted a pauper before your Lords." At this stage of the proceedings the further hearing of the case was adjourned. On Friday morning the hearing of the case was re- sumed when several ladies were present in the galleries, and a considerable number of peers were in their places. The appellant, who was accompanied by two or three ladies, addressing their lordships, said In accordance with a suggestion of your lordships, I have marked certain passages in the judgments of the Scottish judges which I will submit to you instead of reading the whole. One of the judgments I have read fully. The Lord Chancellor You were quite right, because it was in your favour. The appellant then proceeded to read her selected ex- tracts from the judgment of Lord Curriehill. Commenting upon it she said the decision of the House of Lords on a for- mer occasion was not final in the case of Mrs. Forbes, but merely a temporary advantage in her favour. It was a decision founded on the glorious uncertainty of the law, ful- filling the words of the poet, that- Now we are secured by law Till the next brother finds a flaw. The decision was not final, inasmuch as it did not bar thd present appellant from establishing her Irish marriage in the Consistorial Court. It was not final against Mrs. Yelverton, because it did not bar her from applying for a divorce. She was told that the House of Lords was the only place in which Major Yelverton could obtain a divorce, as he was an Irish- man, and the Divorce Court had no jurisdiction there. Nor did the decision of the House of Lords assoilzie the debt which Mr. Thelwall held against Major Yelverton for the support of his wife. It could not avail Major Yelverton be- cause he was exiled from his country that he could evade that country's law. The full court judgment of one country could not, she apprehended, be set aside by the judgment ot another country whose laws it neither knew nor recognized. Hence, if this Irish judgment was binding upon Mr. Yelver- ton, it was also binding upon the appellant, because she had been pronounced by judge and jury to be the wife of Major Yelverton, the court refusing to take cognizance of what was done in Scotland. That judgment might be brought before their lordships, and upon conclusive evidence might be in-, duced to confirm the unanimous decision of the Irish judges. She would inquire where was the res judicata of Mrs. Forbes's marriage, which was declared by Lord Curriehill to be a solemn proceeding in facie ecclesioe. She certainly did not expect such a declaration from a judge in Scotland, where marriage was regarded simply as a civil and not as a religious or sacramental contract. At all events, there had been on the part of the appellant an equally solemn marriage in facie ecclesice at Rosstrevor. On the 25th of June the appellant arrived in Leith She went there to join her husband, and was met by him. She was at that time in the affectionate care of her sister, being at the time in feeble health. She went there because he had told her that unless she came to him he would be a ruined man. The appellant thought she might save him by the sacrifice of some of her property, and at that time her sister was in actual negotiation for the sale of some of her property to help him. She knew that he had been in pecuniary difficulties, and attributed his present wretched- ness to that cause, but she had no suspicion of his faithless- ness. She had no warning of the stormy cloud which was about to burst over her head no glimmering of the vortex of misery which was to engulf her in its dark folds for so many years. When he left her he promised to take her to a more suitable home. On that same evening Mrs. Forbes wrote to Dean Ramsay asking him to marry her on the next morning early to Major Yelverton, not in the Dean's own church, which was only 300 paces off, with all the solemnities which were usuaUy observed, but in the small fishing hamlet of Newhaven. If that marriage had taken place in England it would be illegal or, at all events, would be voidable because the marriage took place out of her own parish. But both marriages were alike private. There were no banns in either case, one marriage being private, and the priest having dispensed with them in the other. There was no ringing of bells, no breakfast, no bridesmaids, no announcements in any of the public papers. She would defy the keenest critic to point out any distinction between the two marriages, and yet it was upon that ground—tha ground of the solemnity of the marriage in facie ecccesix- that the Scotch judges refused to allow the law to take its course. Such, then, were the solemni- ties of Mrs. Forbes's marriage. Notice was given to Dean Ramsey at eleven o'clock at night, and the marriage took place at ten o'clock next morning. This haste was attributable to the fact that the first wife had arrived. That there was a first wife was told to Mrs. Forbes by Major Yelverton during their five weeks' acquain- tance before their pretended marriage. This fact, she sub- mitted, exposed the innocence of Mrs. Forbes to very considerable doubt. The law did not allow a man to have two legal wives at one time, and it was on this point alone that she asked their lordships for satisfaction; she simply wished to tear down the gigantic lie which it had cost Major Yelverton his fortune and his fame to build up during the long period of seven years. She was not pleading for any pecuniary gain; never was the appellant indebted to Major Yelverton for one shilling. She was not seeking to thrust from hearth and homestead a man, woman, or child. She was not seeking to take away their bread of life, or deprive them of any right which they had reason to believe was theirs unassailable. If children there be, their wrong is on the head of the mother, who knew the risk from the begin- ning, before their infant spirit had breathed the air of this sad world. If she were innocent up to the hour of her mar- riage ceremony, the wrong be on the head of the one who de- ceived her. If retribution is to fall, as fall it must, yea, even in this world, it must fall on the head of the evildoer. "Besure thy sin will find thee out." All she pleaded for was that Major Yelverton might be asked, "Did you or did you not marry Maria Theresa Longworth?" and surely English justice would not refuse so simple a demand. They had it on the highest authority that "an eath for confirmation is the end of all strife." It would be, she believed, the end of all these harassing proceedings, while by adopting so simple a course ample justice would be done to alL The appellant then proceeded to read extracts from the judgment of Lord Deas. On the reassembling of their Lordships after a short adjournment the appellant again appeared at the bar, and said her motion was that the matter be referred back to the Court of Session. She said her counsel had just arrived, and he would appear. The Lord Chancellor: I am afraid we cannot hear him now. You know we gave you your choice. The Appellant: Yes, then that is all I have to say. Mr. Anderson, Q. C. (in the absence of the Attorney- General, who was obliged to go to the House of Commons), in arguing the case on behalf of the respondent, proceeded to lay down three propositions— 1. That the reference to the respondent's oath was in- competent, inasmuch as the case had heen finally determined by the judgment of this House in the previous appeal. The matter having been sent down to the Court of Session to have the judgment of the House applied no new proceedings could be introduced. 2. That the reference was incom- petent because the rights of third parties would be involved and, 3, that the reference was incompetent because it involved a charge of bigamy against the respondent. The learned counsel had not concluded his argument when the House rose. The Lord Chancellor intimated that, in conse- quence of the learned judges having to attend their Lordships' House, the hearing of this cause could not be resumed for several days. The further hearing was therefore postponed sine die,

[No title]