THE YELVERTON CASE.

Southland Times, Issue 741, 25 October 1867, Page 3

THE YELVERTON CASE.

(From the Titnes.J 1 The long litigation in the Yelverton case was yesterday brought to a close by the judgment of the House of Lords, which dismissed Miss Longworth's second appeal, and declared that the Court of Session was justified in not allowing the matter to be reopened by a proceeding which, even if lawful, was inexpedient and perhaps unjust. The judgment will not have for the general public the interest of that former one in which all the circumstances of the case, and even the private correspondence of. the parties, were scanned by the most acute legal intellects of the time, and in which the high authority of Lords Brougham and Westbury was found opposed to a decision of a majority of the Law Lords. The second appeal was on a most technical question, and it has been decided on grounds which, though quite clear and intelligible eveu to the^ nonlegal mind, do not involve the merits of Major Telverton or the wrongs of his deserted companion. It willl be remembered that in the various and protracted suits by which Miss Longworth sought to assert her alleged rights victory at first seemed inclined to her side. An action was brought in Ireland, and after an animated and somewhat dramatic trial, a verdict was given in favor of the legality of the Irish marriage. In Scotland proceedings were taken by each of the parties — by Major Telverton to have it declared that the lady was not his wife, and by her to establish the validity of her Scottish marriage. As the two actions involved substantially the same questions of fact, they were conjoined, and the. Lord Ordinary, in July, 1862, -found that Miss Longworth had failed to prove a marriage, arid decided accordingly for Major Yelverton in both actions. This, decision was, however, reversed by a majority of the Judges of the First Division in the ensuing December, and Miss Longworth might hope that her status as a wife was legally established. But there still remained the appeal to the House of Lords, and after the usual delays, the whole question was argued at extraordinary length before this supreme tribunal. On the 29th uuly, 1864, their Lordships delivered judgment, and the difficulty of the case may be understood from the difference of opinion which was disclosed. The Lord Chancellor, Lord Westbury, and Lord Brougham, whose written judgment, however, was not received in his absence, were for affirming the judgment of the Court below. Lords Chelmsford, "Wensleydale, and Kingsdown were of the contrary opinion, and considered that the Scotsish Court, had wrongfully decided in favor of Miss Longworth. These being the majority, in consequence of the exclusion of Lord Brougham's judgment, the judgment was reversed, and the respondent declared not to be legally married to the appelant.

The blow was a heavy one; but a woman, when her mind is concentrated on one idea, often pursues it with a surpassing perseverance and fortitude. Miss Longworth's passion was to be declared the legal wife of Major Yelverton, and this object, which, after what had passed, would seem to have been almost valueless she would not forego as long as any expedient remained to be tried. She was advised that, according to ancient Scottish usuage, one of the parties to a suit may refer the cause to the oath of the other, • even though,- the party thus tendering the reference is unable to adduce proof of the facts alleged. The law on the subject may be gathered sufficienty for a general comprehension of it from the Lord Chancellor's judgment ; we need only state here that there seems to be no doubt such a right of claiming a reference to oath exists, but that in the opinion of the House of Lords, as just pronounced, the reference ought only to be made when the Court shall deem it conducive to the ends of justice. In this case, the Lord Chancellor decided against the appellant— firstly, on the ground that such a reference to the oath of a party should only be allowed where the party referring and the party referred to stand with opposed interests on the matter referred, and where no other interests is involved. In the present case it was so, inasmuch as the interests of Mrs Forbes, whom Major Telverton had married, were clearly involved. As the Lord Chancellor Baid. "If the reference to oath Were admittod in this case, Mrs Eorbes might be deprived of her status as a wife by a decree made behind her back which she would never afterwards be able to question." A second objection to the reference is that " the answer to it in the affirmative— an answer which the appellant must be taken by her reference, to except to receive — necessarily involves an admission by the respondent of criminality," since if he were to admit the alleged marriage between himself and the appellant he must confess that he' has been guilty of bigamy. Though too, a party in a case of reference to oath may refuse to answer, the effect would bethat he would be taken to have con- | fessed the facts, and exactly the sasae benefit would accrue to the party making the reference as if au aflirmatiYQ an&w

had been obtained. "In the present case, therefore, ihe respondent, if he had answered affirmatively, would have admitted himself to Lave been guilty of bigamy ; or, if he had refused to answer, Mrs Eorbes would have been conclusively deprived of all the rights which she had acquired by her marriage with the respondent." The Lord Chancellor also held that in the case of a declaration of marriage, the competency of a reference to oath had been taken away by statute, so that accumulated reasons existed for affirming the judgment of the Court below. The other Lords concurred in these opinions, and the appeal was dismissed.

So ends the long contest between Major Telverton and his unfortunate companion. Whatever may have been her imprudences or her errors, it is impossible not to feel regret for a woman of education and of no small ability whose life has been so wrecked. To recall the circumstances of her connection With Major Telverton can serve no useful purpose ; but the people, and particularly the influential men, of Scotland and Ireland, cannot too attentively consider those parts of her history which testify to the absurdity of the marriage laws in their respective countries. It requires no argument to prove that a state of law ought not to exist under which, with an immense mass of evidence and a long correspondence before them, two Law Lords can differ from three as to the fact whether a man was or was not married to a woman. We may add, indeed, it is a disgrace to civilisation that letters and gossip should be evidence at all of so momentous a contract. In giving judgment in 1864, Lord Wensleydale expressed his regret that in the nineteenth century the most important relation of life should depend on the loose recollection of . witnesses, and " sometimes on the meaning of an amatory expression in impassioned letters." Every one out of Scotland will concur in this opinion, and it to be hoped that some day the subject will be considered without prejudice and national bigotry north of the Tweed. Scarcely a month passes in which there are not attempts at imposition and extortion, the direct consequences of a law which allows an illicit connection to merge into a legal marriage by imperceptible gradations, or to be converted into it by some incautious word or act. In the JB rea dalbane ease it has been doubtful for a generation how an earldom and a vast estate would descend, and now the question has been decided confessedly on presumption. In the Yelverton case the position not only of the parties, but of her who is now decided to be the real wife of Major Telverton, has been left in doubt for years ; and if Miss Longworth had borne a child, and had not herself prosecuted her claim, the litigation might have been deferred till all who are now living had passed away. To make the marriage laws of the three kingdoms identical, and consistent with reason and justice, would be. one of the most worthy achievements of a great statesman.