Scottish Court of Session Decisions

In this case, in which “the Hon, Maria Theresa Longworth or Yelverton,” residing in Edinburgh, is pursuer, and Alexander James Beresford Beresford Hope of Bedgebury Park in the county of Kent Esq., and John Douglas Cooke, Esq., of the Albany, in the county of Middlesex, and both residing in or near London, or elsewhere furth of Scotland (against whom arrestments have been used ad fundandam jurisdictionem) are defenders, the following issue was submitted to the jury:—

It being admitted that the defenders are proprietors and publishers of the Saturday Review, and that in that paper, on the 30th July 1864, an article was published by them entitled “The Yelverton Case,” and expressed in the terms contained in the schedule annexed:

“Whether the whole or any part of the said article is of and concerning the pursuer, and falsely and calumniously represents the pursuer as being a disreputable and immodest person—to the loss, injury, and damage of the pursuer?”

Damages were laid at £3000.

The following is the substance of the article complained of:—

“ the yelverton case.”

“More than three years ago we ventured, on the very first blush of the Yelverton case, to hint that, whatever sympathies might be attracted by the romance of Miss Theresa Longworth's love story, she was in something more than the Scotch legal sense the pursuer. The House of Lords, as the court of final appeal, decided on Thursday by a majority of three to one—or, counting Lord Brougham's opinion, of three to two—that the alleged Scotch marriage was not a marriage, even in the lax sense in which some Scotch jurists understand the term.… But if Lords Wensleydale, Kingsdown, and Chelmsford had shown themselves susceptible as the Chancellor and Lord Brougham, we are not sure that it (the validity of the marriage) might not have been successfully maintained. There is no knowing what Lord Westbury might not have said or done had he, like the Irish Jury, been personally under the fire of Miss Longworth's dangerous eyes. We remember in what a practical way an Athenian lady of doubtful fame enlisted the feelings of her judges. Lord Westbury has shown himself to be a critic in amatory effusions, and can see nothing inconsistent with chastity and purity in Miss Longworth's remarkable letters. Throughout the cause he has certainly exhibited a familiarity, not to say something of personal sympathy, with very warm writing; and, on the whole, we may congratulate the British Themis that in this case of appeal there is no personal examination of appellant or respondent. What might have been the consequences had Miss Longworth appeared before the woolsack like Helen among the Trojan greybeards, it would be alike difficult and improper to forecast.… [After referring to the ceremony at Rostrevor, and denying the pursuer's statement that there was no previous intercourse, the article proceeds]—The result seems to be this—that, as far as the events in Scotland and Ireland are intelligible, both Major Yelverton and Miss Longworth managed every step with as much caution, and careful wary deliberation, as though each had taken counsel's opinion upon it beforehand, but that Miss Longworth had the worst legal advice of the two. Miss Longworth all but managed to get a legal Scotch marriage out of it, but she did not quite succeed. Major Yelverton, on the other hand, was as nearly as possible inextricably hung up in the very fine meshes of a Scotch marriage, but he just managed to escape. It was a very admirable piece of finessing on both sides; but the gent man had the best—that is, the legal best—in this contest of skill.…… . For Major Yelverton but little can be said.…… At any rate he gave the lady warning. He pointed out that her ruin could only be the result of a renewal of their acquaintance, and he gave her the choice of renewing it or not. That renewal was her act, not his.… . . He felt it to be of no use struggling against the strong will of Theresa Longworth; but he all along made up his mind that, as he was to be the lady's victim, it should be on his own terms, not hers.… . As to Miss Longworth, we would now say as little as we can. When all the world was on her side—when she was the triumphant object of what are called Irish ovations—when all Scotland made her virtues as much an article of faith as Queen Mary's innocence, and when nearly the whole of England echoed their salutations—we expressed ourselves intelligibly on this lady's life and character. The highest Engglish tribunal has now fully accepted that view which four years ago was both uncommon and unpopular. It were ungenerous to press heavily on any one who is down; doubly ungenerous in the case of a woman of very remarkable powers, great intellectual accomplishments, and now labouring under the heavy burthen of failure and humiliation. To say that, in our judgment, she fully deserves her fate, may sound harsh; but to say much less were to compromise the interests of truth and morality. She has a thorny bed to lie on, but she has made it for herself. And if we express ourselves strongly, it is chiefly because the Lord High Chancellor of England has thought proper in his judicial capacity, not only to pronounce a high eulogium on the intellectual capacity displayed in Miss Longworth's letters, but to declare that their tone is consistent with ‘honourable courtship.’ The interests of morality would, we think, be seriously compromised were this judgment to rest on any higher grounds than Lord Westbury's opinion of what may be the proper style of correspondence between unmarried—or, for the matter of that, between married — persons. To right thinking persons, there is much in these terrible letters which is simply loathsome. We have no notion of making a heroine of such a person as Miss Longworth. She is out of keeping with Society, both as it is, and as it ought to be. She is an adventuress, launched out into the world nobody knows how, with a previous history which has never been told. She is a Sæur de Charite, but she meets and courts adventures little in keeping with her semi-conventual dress and office. She sinners it and saints it by turns or at once. She is made up of passion and prudence, of hard intellectual vigour, and sensuous thoughts and feelings. She writes as no modest woman writes; and she schemes as no modest woman would scheme. She has religious scruples, but they do not restrain her from provoking at least to sin. The best that can be hoped for her is that she will abandon that world which will act most kindly by forgetting her, and forgiving her offence against society.”

The pursuer in her condescendence sets forth that the Saturday Review, whose articles are for the most part written with great ability and in a style indicating that their authors are educated gentlemen, is much read by the more intelligent classes, and has an extensive circulation in Great Britain and in the British colonies, and is read in foreign countries also, as a leading exponent of British public opinion. She avers that the article complained of is, as a whole, and particularly in certain passages cited, “false and calumnious, and calculated and intended to represent the pursuer as an immoral, disreputable, and immodest person, who was ‘out of keeping with’ or unfit for society, both as it is and as it ought to be; whose conduct was inconsistent with her religious profession, and was such that she fully deserves ‘failure and humiliation’ and ‘ruin;’ whose letters were in their tone inconsistent with honourable courtship, and were such as no modest woman would write, and were of

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a style improper, either for married or unmarried parties, and were ‘simply loathsome’ to right-thinking persons from their immodesty and immorality; or it makes one or more of these false and calumnious representations or insinuations. Although the history of her whole life from childhood was fully investigated, in order that her character might be assailed, and was made the subject of lengthy evidence in the proof in the conjoined actions upon which the House of Lords gave judgment, the said article falsely asserts that ‘she is an adventuress, launched into the world nobody knows how, with a previous history that has never been told,’ insinuating, and intending to insinuate, by these false and calumnious assertions, that her previous history had been of so disreputable a character that it could not be told without shocking public decency; or making some similar insinuations prejudicial to the pursuer's moral character.” She further states that the said article contains statements for the making of which there was and is no probable cause, and the said statements are malicious, and are not justifiable as fair newspaper comments upon proceedings taking place in a court of justice.

The defenders' pleas, so far as affecting the jury trial, were as follow:—

3. The article complained of is not defamatory of the pursuer, and is not actionable at her instance,

4. This action cannot be maintained, and the defenders are entitled to be assoilzied, in respect the article complained of is within the limits of fair criticism.