The Sun.
London, England, 1828-05-14 00:00:00

WELLESLEY V. THE DUKE or BEAUFORT.

Counsel were called in, when
Mr. lleouctrAm proceeded to address their Lordships
in support of this appeal. The Learned Gentleman ex-
pressed his decided conviction that he would prove, first,
that there was no jurisdiction in the Court of Chancery to
deprive Mr. Wellesley of the custody of his children, and
that even supposing that jurisdiction did exist, the circum-
stances of the present case did not warrant its exercise.
[Up to the time when our reporter came away, the
Learned Gentleman had not touched upon any part of the
case with which the public is not already familiar.

• Mar 13.
SCOTCH MARRIAGE QUESTION.
JUDGMENT.
M`NIELL V. M‘GRECOR.,
Ibis case had been very fully argued in the beginning o,
the Session, and the disposal of it this morning excited
considerable interest. The appellant had been regularly
married in June, ISI6, to a persen of the name of ;Air, a
surgeon, in Edinburgh, and they had several children ;
but in March, 1518, M‘Gregor, a journeyman printer,
raised an action in the Scotch Ecclesiastical Court, for the
purpose of having it declared that the appellant was married
to him some weeks earlier than to Mr. Jollie. M‘Gregor
succeeded in obtaining a judgment, which was afterwards
affirmed by the Court of Session. This decision was ap-
pealed from, and now stood over for the judgment of the
House.
The Earl of LAUDERDALE, in a long speech, de-
tailed minutely the facts of the case, dwelling
with great indignation on the conduct of Nl`Gregor,
which his Lordship contended was more infamous and
scandalous than any ever exhibited to their Lordships' con-
sideration. If their Lordships were to affirm the interlo-
cutor of the Court below, lie thought they would abandon
the principles of all prior decisions on questions of this de-
scription. It was impossible to affirm the judgment ap-
pealed from, because it contained a declaration of facts
which were not even alleged in the summons of the action.
There was no legal proof to satisfy a judicial mind that any
ceremony of marriage between the appellant and respondent
ever took place at the house of Joseph Robertson, the in-
famous priest, who was said to have officiated on the oc-
casion ; and even if the ceremony did take place, it was
not of that sort from which their Lordships would infer a
free and deliberate consent, such as the law of Scotland
required.
Lord ELDON then addressed the House, and stated that
if the case had not been of very deep importance, lie
would, after what had fallen from his Noble and Learned
Friend, have thought it enough to state, that there was, in
his opinion, abundant ground for reversing the judgment
of the Court below. The summons concluded that the
appellant and respondent were married parties ; but even
supposing that a decree should be pronounced establishing
the marriage, he much doubted whether the other con-
clusion of adherence and cohabitation could be enforced.
The object of M‘Gregor was evidently not to repossess
the person, but the property of the lady. And his Lord-
ship desired, therefore, to be understood as neither admit-
ting nor denying that she could ever be ordained to return
to the embraces of M'Gregor. He had no hesitation
in saying, that if their Lordships were once satisfied of the
II
-marriage, no subsequent conduct of the parties could be
received in evidence to undo it. But recollecting that
Scotch marriages were very easily formed, there was no-
thing which the law of that country snore insisted upon
than that, iu whatever kind of marriage, whether regular
or irregular, per verba de priesenti by promise cum
copula, or in facie ecclesia, the consent should be full
and deliberate, and uninfluenced by force or fraud. With
respect to the question, whether evidence could be received
to prove the absence of consent at a regular marriage in
facie ecclesice, which had been raised in this case, he begged
to be understood as expressing no opinion whatever. It
was an indisputable proposition in law, that if a marriage
were once clearly established, it could not be got rid of by
any attempt of the parties afterwards to disentangle them-
selves from the connexion. The marriage must be sus-
tained, let the consequences to third parties be what they
might. The question in this case really was, whether the
ceremony at Joseph Robertson's on the 23d May, 1816,
was a mere ceremony, or an actual constitution of the mar-
riage. if it was an actual constitution of a marriage,
then their Lordships could not undo it, by any reasoning
founded on a regret for the lamentable consequences which
it might produce. A Noble Relative of his (Lord Stowell)
had given bins the fullest authority to state to their Lord-
ships, that he could not possibly sustain this marriage.—
In proceeding to consider the substance of the summons,
he would now, at the close of au experience of 23 years,
repeat, perhaps for the last time, that it had always been
his most anxious wish (whatever might have been said) to
give to the principles of the law of Scotland their complete
effect, without any leaning to English maxims. He was
undoubtedly much struck by the extraordinary nature of
the present summons. Before the journey to Holytown,
in Spring, 1516, it was known to M‘Gregor that Mr.
Julie was a suitor of this lady, and was preferred by her
to himself. The summons states, that when the appellant
and respondent were together at Holytown, in the county
of Lanark, "an irregular marriage between them was cele-
brated by the said Doctor James M`Niell." Instead of any
proof of the marriage at Holytown, all the proof went
directly the other way; because, if it was true that
Doctor bPNiell (himself a clergyman, and the father
of this lady) married them, and gave the priests'
benediction, what difficulty could they have had in
going to the same bed. Now the witnesses merely
elate that in a Scotch inn there were not enough rooms,
and a difficulty arose, as the bride and bridegroom could
only find a room with two beds. His Lordship thought,
that if they were really married they might have been sa-
tisfied with one. Instead of a consummation of the mar-
riage on this occasion, it was proved, that the lady was so
much afraid of being disturbed by M`Gregor that, with a
becoming Scotch delicacy, she refused to go to-bed, unless
something were put round it, so that he could not set his
eyes on his affectionate wife during the night. New what
regular marriage at Edinburgh. The
was done on the 20th of May, 1816 ? This ceremony at
irregular, and it was thought
Holytown was thought very
argh was the most extraordinary thing
tnhiaerreriashgeoualtdEnbbea
Isis Lordship had ever heard of. On the 20th they arrive
in Edinburgh, and on the 23d they endeavour to get a cer-
tificate of a proclamation of banns, which could not pos-
sibly have taken place, because no Sunday intervened be-
tween May 20 and 23. Late in the evening of the 23d they
are married
than the
Ph Robertson, a man who was a dis-
aThis ceremony could net be
better e
before Dr. M‘Neill, who was
Himself
The marriage at Holytown he con-
sidered to be completely disproved. He further thought
gr
e to
aa c
ihis
rbefore
yprofession,n a tJ . ceremony o e
himself judicially authorized to say, that the allegation
with respect to Dr. 111'Neill's imbecility, was utterly un-
founded. It was said that the public marriage wa: in-
tended to cure the private one; but how did it happen
which it appeared that any body ever heard of this public
n
nwasisclni° material or substantial evidence from
was to fortify the private one. Could
bad given away his daughter in marriage, and be-
stowedt tl 181 t
r bieagr
thoesrn'tPPosed that if Dr. M'Neill at Holy town
there vas
married parties the priest's blessing, he should
between that period and the 23d of May have become so
weak and impotent, or so addicted to deadly drinking, that
be should not have been present at this public marriage.
But no human being acquainted with the character of this
infamous priest, his wife an& daughter, would have thought
of being married with no other witnesses than these indi-
viduals. As to the proof of consummation, it was not
even alleged in the summons. He was satisfied that there
had been no consummation. The story of Mr. Jollie
was no doubt improbable, but not so much so as M‘Gre-
goes story. There was no attempt to prove the columns-
'nation. On the 13th of the subsequent month of June,
Julie was married to the appellant ; and Dr. M`Niell,