The Yelverton marriage case : Thelwall v. Yelverton : comprising an authentic and unabridged account of the most extraordinary trial of modern times, with all its revelations, incidents and details : specially reported.
- Avonmore, William Charles Yelverton, Viscount, 1824-1883.
- Date:
- 1861
Licence: Public Domain Mark
Credit: The Yelverton marriage case : Thelwall v. Yelverton : comprising an authentic and unabridged account of the most extraordinary trial of modern times, with all its revelations, incidents and details : specially reported. Source: Wellcome Collection.
Provider: This material has been provided by Royal College of Physicians, London. The original may be consulted at Royal College of Physicians, London.
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![It is. Sir. I want to know would it diminish the foi-ce of the case I put to you ? I think it would be taken as evidence, but,of. veiT little importance. Would it bo taken into account ?—lam not sure that it would. . „ , , • i- Witness' Declarations per wrha, de presenti of that kind mime within Scotland are received m Scotland, but statements of that kind made out of Scotland would not be received as evidence in Scotland to constitute a marriage. . • t , i i Mr. Whiteside—Now, Mr. Preliminary Patterson, that was not the question I asked vou, and, with deference to you, you never yet gave me a direct answer to any question I put. I ask you whether the fact of the man and woman, concerning whom I before questioned you, being received and addressed as husband and wife in Ireland, Prance, Belgium, or Switzerland, would diminish the force of the testimony in Scotland ?—The circumstances would be received in evidence. It would bo taken as an item of the. evidence. Listen, Sir. Would letters, addressed by the woman in Scotland, received by him, and oalline him husband—would they be evidence in your law to assist ?—Undoubtedly. If there wore sucxi letters it would be evidence. A. strong fact ? It would be an item in the evidence against him. No doubt of it. And all these facts, would go to prove, marriage Yes. Now, listen. Sir. Do you approve of this one decision before you go ? [Case of H'oneyman v. Gaunpbell, reported in 5 Wilson Shaw, 1.48.] “The Lord Chancellor—I desire to he distinctly understood as acoeding to the doctiane that whero. two pei-sons are proved to have been in courtship, and, though no distinct promise was made, yet where ambiguous expressions were used from which a promise might be inferred to have been made on the one hand and accepted on the other, and if thei-e is great probability of a promise having taken place, that promise wilt be turned into a certainty by the copula which follows.” Is that good law ? Certainly ; no doubt. “ And for this plain and obvious reason, that the woman under these circumstances does not yield her virtue for nothing, I assume that she gets that oonsideration for it, precisely ns I would assume if I had a doubt about the evidence of a common contract for the purchase or sale of mer- ehandise. Wlien I see one party paying a price, if there wore ambiguity as to the bargain stipulated, I should consider the ambiguity removed by the fact of that, price having been paid.” Do you approve of that as good law ? I do ; it is good law. Court—You say that, however solemn he a contract of marriage, per verba dc presenti, between two persons in a room alone—however solemn, if there are no witnesses to the e.xcbange of the words, even though followed by cohabitation, it is not a marriage by the law of Scotland.'' No, my lord; I did not say that. What I say is this ; These words passing between two parties.in a room without witnesses, and followed by nothing else, would not, p&r se, constitute marriage. I asked you, if followed by cupola ? That would he a material fact to constitute marriagei] Were you present in court during the examination of another adv'ocate ? I was. You are aware his opinion is at right angles with yours I think not, my lord. What he said was : “ If there be in Scotland a solemn contract, per ve>-ba de presenti, though, no witnesses are present, and no writing given, still, if that arises in a case in which evideoca can be given, and if the fact be proved, the fact of the absence of witnesses while the contract was made constitutes no abjection.” Do you agree in that ? I do, not. Is that the effect of the statute law or of the common, law of Scotland } Partly both, my lord, lathe first place, neither of the parties can give evidence of the contract. Court—That is another matter. Neither of the parties, in a suit inter se, can be witnesses, and, therefore, when the thing arises inter se, there cannot be.evidence of it ? No, my lord. I know ; but supposing tliere be a man in Scotland who performs that contract joer verba de presenti with a woman, he and she being alone; suppose that ihat mim dies, and a question then arises as to the legitimacy of a child ; Is the mother of tho child, in a suit between that child and a third person, a competent witness to-prove tho legitimacy of the childI am not aware of any case of the kind being decided. Has no such case arisen I have no recollection of any such case, my lord. I'hereforc, it remains yet to he decided, according to the law of Scotland. In a case in wdiich a woman_ is a competent witness, if she proves having performed that contract w'ith a man, and if that evidence is believed, is there any decision in Scotland that her son will not get the iiihcxitable property There is no.such decision. The case could not arise, my lord. Why not For this reason, ray lord: I think they would hold that,, a party contracting in such a way being interested in. proving the fact of Uio contract, her evidence would require ♦orroboration. 'Chat is, thaf she would not he believed ? Yes, my lord. I am putting the case of her evidence being believed. If I, ns an honest man, am satisfied in my conscience that this man took this woman for his wife, hud cohabitation witli her, and died in toe course of the next night, before any opportunity was given of the publication of tho marriage, that h shh 13 born, and that a question arivos between that son and a brother who otherwise would uinerit the property,—if, notwithstanding tho improhubilities of the case, the judge in his con- science believes the facts, I ask you who would be entitled to the property, according to the law of aooUand. Undoubtedly, if tho facts were proved, the son would be entitled. is there any law of Scotland, asbotweeii third paitic.s, onabliiig the wife or husband to bo a witness to prove the marriage ? There could not ho any such case in Scotland,](https://iiif.wellcomecollection.org/image/b28408214_0131.jp2/full/800%2C/0/default.jpg)
