Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1885-08-08
Marriage In New York and England,

The case before the English House of
; Lords, sitting rs a committee of privileges,
: in which Minister Phelps was summoned
to testify on one side, and Senator Ed
munds on the other, seems to have been
decided or evad rather, by that judicatory
on another than that upon which
these en- Americans were called.
e'a e ei'daeSc.0H N issue was the right TO the
dgnities of the Landerdale Scottish peer
age. This controversy between the claim
ants is one over which the House of Lords
has exclusive jurisdiction, though the title
to the realty situate in Scotland is triable
in the Scotch courts; thus it happens that
these tribunals differ sometimes, and the
title goes to one litigant and the estates to
the other.
The case hinged on the question of
whether the petitioners great-grandfather
Co. Richard Maitland and Mary Madam,
the mother of his son, had been lawfully
married in New York in 1772. 1t was
admitted that their son, the grandfather
of the claimant, was born before this mar
riage, but the law then as now seems to
have been that the subsequent marriage
legtimatized the issue. The counter
claimants case was that the law of that
day required publication of the banns, that
no such publication had been made in this
case, and that therefore the marriage was
invalid and the descent therefrom could
not inherit.
Minister Phelps was called to testify as
to whether the" Dukes lawsn of 1862 and
1854, in which the requirement of banns
had its origin, were in force in New York
in l772, and he gave as his opinion that
they had had no force since 1851. At the
same time he testified that it had been held
by the highest court in America that it was
not necessary that banns should be pub
lished, or a license obtained to constitute
valid marriage in New York (; there had
been no alteration in the law of marriage
in New York between l772 and the pres
ent time.
Upon the continuing force of the
Dukes laws" in 1872, Senator Edmunds
squarely joined issue with Minister Phelps
but upon this point, though there was an
intimation by Lord Selborne against Mr..
Phelps position, there was no direct de-
Sioioh. L hC Nuoio NdoC hsto ucCiucu lUI tDe
aimant on technical rule of evidence as
- burden of proof. The counter claimant
did not prove that banns or license had not
been published or obtained, nor did the |
claimant prove that they had been. All the |
evidence showed that a clergyman SOL |
emnized amarriage according to the forms
prescribed by the Anglican prayer book,
and that, shortly afterward, the husband |
died. Whereupon the House of Lords took
the charitable view, in the absence of any |
proof to the contrary, that it was to be
presumed what should have been done was
done, and the validity of the marriage was
sustained. After this question had been
disposed of, the next was whether or not
the marriage made legitimate the sons al
ready born; that was promptly decided in
the Affirmative.
The case is one of large interest, not
only because of the eminent witnesses
called and the high authority of the testi-
m)ny given, and for the exhaustive in
quiries into the colonial laws of New York,
Dutch and English, that have been made
both in London and New York but be-
cause from so high judicatory has again
been affirmed the disposition Of the courts
TO sustain the validity of marriage and
legitimatize the issue thereof, wherever
possible to discover the matrimonial intent
Of the parties. /,