At the same time we trust that our readers will
observe been either the one or the other, or neither.
that it is not the law of Scotland which is in doubt. We do The law of Scotland is, however, very liberal. It does not not merely mean that the doctrine that consent makes marriage tie you down to proof of even a contract to marry. It is quite- is unquestionably the common law of Europe, but that it is sufficient, if there has been a promise to marry, that there not difficult to formulate propositions which state the cases in should be subsequent conjugal intercourse on the faith of that which consent is held to be sufficiently proved. The difficul- promise. Only the promise must be given in Scotland, and ties, the almost insuperable difficulties, which arise under the proved by clear written evidence. Unfortunately, according Scotch law are difficulties of evidence. It is, in many cases, to Mrs. Longworth, the Major was always promising to marry nearly impossible to say whether the evidence does or does her. Not only did he do so in Edinburgh, but he had done not establish the facts from which consent may be in- so previously both at Galata and in the Crimea, and the vague- ferred. The Scotch are an argumentative people, and probably expressions in the letter were quite as applicable to the they enjoy the subtle and protracted discussions which this latter as to the former, and they could not therefore prove a state of things occasions. But since fate has united them to promise in Scotland. Nay, we venture to assert that they are England and Ireland it seems a little hard that they should perfectly consistent with a mere promise to go through an in- insist on the gratification of this taste at the expense of valid Romanist ceremony for the satisfaction of the lady's con- their English and Irish fellow-countrymen. Every other science. Not only, however, must there be clear evidence of civilized country has long since enacted that it will not a promise in Scotland, but there must be cohabitation in Scot- regard any contract of marriage as legally binding unless the land referable to the promise. If a man live with a woman mutual consent of the parties be expressed before a legal in Scotland, and during the cohabitation gives her a pro- officer (in England either the registrar or a parish priest), in miss of marriage, the relation of man and wife is not the face of day and in the presence of two witnesses. And constituted. The reason why intercourse consequent on the law of all countries throws on the legal officer, be he who a promise constitutes marriage is because we may infer- he may, in whose presence the marriage is celebrated, the duty from the promise, consent to marry at the time of inter- of preserving a proper written record of the contract. These course, but if both before and after the promise it- simple rules, dictated alike by convenience and common sense, has been continuous no such inference can be drawn, are what Scotchmen repudiate as a tyranny. Of course Here, no doubt, there had been intercourse in Scotland, but they do not refuse to allow prudent people to adopt such it was referable not to the Scotch promise, even if that had been reasonable precautions. But although the reasons which proved, but to what took place in Ireland. Lord Westbury, in- prompt to secret marriage can never be creditable, and are deed, put a very cunning case. He said, suppose a promise of often criminal, the stern and wild Caledonian rather than marriage, and that the parties come into England, sleep there, make these rules compulsory is ready to endure all the evils and return next day to Scotland, can it be said that because of of which the Yelverton case is a notable example. that single day in England they are not married. We venture The first and most obvious mode of proving the exchange of to think that the answer is that it is in every case a question of mutual consent which alone is necessary to constitute marriage fact—that in the case put any Court would probably hold that in Scotland, is by proving an immediate present contract, or, in the intercourse in England, and therefore also in Scotland, technical language, a contract per verba de prcesenti. If a were both referable to the promise, though it was with the trustworthy witness was present, of course the matter is clear, latter only that the Scotch law could deal. There was- but it is positively the law of Scotland, that if a man and woman abundant ground for thinking that the intercourse in Ireland being alone together in a room enter bond fide into a verbal between the parties to the cause had no reference at all to contract of marriage they are from that moment man and anything which had taken place previously. But we venture wife. The sole limit to this proposition is •that the parties to submit to our Scotch friends that these are rather nice dis- themselves are not competent witnesses, and that therefore if tinotions on which to found or overthrow the validity of such one of them, after he has come out of the room, denies the a eontract as marriage. alleged contract., it can only be proved by means of admissions The validity of the Irish marriage none of the Law Lords which he may incautiously have made. Take Mrs. Long- asserted, and the majority all expressed themselves strongly worth's assertion that on a certain Sunday in April, 1857, against it. The only importance of this is that the decision Major Yelverton read aloud from the Prayer-book the marriage of the House of Lords sitting as a courtof Scotch appeal is not, service of the Church of England, —if that assertion be true we imagine, binding on the Irish Ecclesiastical Courts as to the she is undoubtedly his wife. Yet the only evidence she could Irish marriage. But if the lady should be so ill-advised as to adduce was that the woman in whose house she lodged said continue any longer this lamentable litigation, and should that she once heard the Major reading aloud,—that she could succeed in Ireland, Major Yelverton would certainly appeal with France without assistance either from Austria or the not distinguish his words, but that he was reading "in a Diet, or with the Diet and Austria, or with the Diet religious voice." On the other hand, the same witness declares supported by her own people, and it is this which will alone that the Major came to the house every day except Saturdays account for the feverish speed at which Herr Von Bismark is and Sundays, on which he never came, and unfortunately Mrs. driving events. He is pressing the locomotive because he Longworth had previously insisted that the alleged marriage feels what the spectators do not, the tremble of the train be- took place on Easter Sunday. Is it wonderful if the House of hind. That Denmark must be dismembered seems certain, Lords decided that the lady had not proved her assertion, but but that Prussia will escape with impunity is, despite her though we do not pretend to believe in it, there is still just a Premier's audacity, at the best very doubtful. possibility that it is true notwithstanding ? And if so, inas- much as the fact of marriage cannot possibly depend on the WIFE AND NO WIFE. existence of evidence, Mrs. Longworth is his wife by the law ANOTHER great scandal is at last laid, and the world as of Scotland, though she can never be acknowledged to be so, well Major Yelverton knows which of the two ladies and Major Yelverton's children are not born in wedlock, who have been contending for him is entitled to the doubtful though they are unquestionably his legitimate heirs. honour of being his wife. The House of Lords has decided Of course it has been maintained that the Major had ad- by a majority of three to one that Mrs. Theresa Longworth mitted the contract by his subsequent letters. We do not has failed to establish her case, thereby affirming the think it necessary to follow this argument. We are content to judgments pronounced in Scotland by the Lord President and say of that wearisome correspondence, of which all mankind Lord Ardmillan, and overruling that of Lords Deas and has heard more than enough, that it is so ambiguous as to Curriehill. If the decision of Lord Brougham, somewhat be capable of being reconciled with either the story of the irregularly disclosed by the Chancellor, be taken into account, Major or of the lady, or indeed with half-a-dozen other con- the majority will be reduced to one, though perhaps no great ceivable stories, of which one at least is more probable than weight can be attached to an opinion of which, inasmuch as that of either the appellant or respondent. The same re- the noble holder did not think fit to remain in town and mark applies to the attempt to use the letters as proof of a declare it, the reasons still remain in nubibus. It must eer- promise to marry. The expressions are so vague that they tainly be very gratifying to Scotland, which sometimes may mean anything. They may point to a promise in Soot- complains that her interests are not attended to sufficiently, land or a promise at Galata,—to an unconditional promise or to find herself the happy possessor of a law by virtue a promise to marry at some future time if the family obstacles- of which it has taken exactly five years, besides a few preli- which Major Yelverton alleged to be his reason for not mar- minary legal skirmishes, to decide whether two people are rying could be removed. Indeed they are perfectly chame- married or not, and which in the course of that time has set leon-like. To the very last the respondent's counsel put two the Irish judges at variance with the Scotch, has equally meanings on them, for they maintained that they were at the- divided both the Irish and the Scotch, and has only been same time admissions of an existing valid marriage by con- decided in England by the narrow majority of a single voice. tract and of a promise to marry. Yet surely they must have to the House of Lords. It is not probable that the House could be persuaded to adopt a conclusion which would give the Major the proud privilege of having two wives, one in Ireland and another in Scotland, and would enable him with- out any breach of legality to pass six months with the one and six with the other; each lady being his wife in the country in which she would reside.
It would seem therefore that the reasoning of the majority of the judges was sound, and that Miss Longworth completely failed in establishing her case. We rejoice at this conclusion, first, for the sake of the children, who at least are free from blame, and secondly, for the sake of the public. The extra- ordinary laxity of the Scotch law renders it of the gravest importance that the facts from which consent may be inferred should be proved beyond the shadow of doubt. If questionable evidence, if a mere balance of probabilities, is to establish those facts, Scotland will be one large marriage-trap in which unwary strangers will be caught without even a chance of escape. The forms of marriage to which we have had to refer are by no means the only irregular modes in which the rela- tion may be created, and as the Irish Chief Justice wittily remarked, the only wonder is that there is a human being in Scotland still unmarried. But whatever may be our judgment as to the truth of Mrs. Longworth's case, there is very much to be said in palliation of her conduct. We do not care to cha- racterize the allegation of Major Yelverton that she was schem- ing to become his mistress. Did it need, forsooth, any scheming to effect that? Does he wish -us to take him for a Joseph ? The most the letters prove is a somewhat indelicate attempt to allure or excite him into marriage, and she may at least plead in her excuse an ardent and unselfish love. When she failed to warm the heart of an avowed money-hunter, she at least stipulated for a marriage, valid by the rules of the Catholic hierarchy, and such as has always been held to have redeemed the fame of Mrs. Fitzherbert. We are far from meaning to compare the two women, but the errors of Mrs. Longworth are at least attributable to her unbounded trust in Major Yelverton. He certainly promised to take no other wife, even if he denied her the legal status which alone could justify her conduct in the eyes of the world. When after a few short months the most sacred obligations were coldly broken through, when she found herself dishonoured, deserted, and betrayed, what wonder is it if in her despair she tried to convert moral claims into legal rights, and what man among us will have the courage or the heart to insist on the un- scrupulousness of one who had certainly been taught no better lesson by men ?
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