Lord Woolman

Is any case more colourful than Steuart v Robertson (1875) 2R (HL) 80? It involves gallantry, dissipation, a disputed marriage, entailed estates, and a lengthy lawsuit.

Major Steuart was the oldest son of an ancient family. He served with distinction in the 93rd Highlanders, being awarded the Victoria Cross. But after leaving the army he fell into a life of dissolution. His alcoholism resulted in attacks of delirium tremens and ultimately to his death in 1868 aged 37.

A young woman, ‘Mary’, came forward and made a claim on his considerable estate. She maintained that she was the Major’s widow, having wed him two years earlier, when she was 16.

Major S had boarded with her family in a flat above her father’s fishing tackle shop at the top of Leith Walk in Edinburgh. After supper one evening Mary’s father told Major S that he could no longer stay under their roof, because his presence in the flat was tarnishing Mary’s reputation.

Major S sat quiet for a minute or two and tears came into his eyes. He then said: “I am poor now and cannot marry, but I will marry her in the Scotch fashion.” He went down on his knee, put a ring on the third finger of Mary’s left hand and said “you are my wife before Heaven, so help me, oh God”. Those present then saw the couple embrace, kiss and go to bed together.

Following that night the parties’ conduct followed an uncertain pattern. Sometimes the Major acknowledged that he was married to Mary. Sometimes he did not. She likewise claimed to be his wife, but also held herself out as single. It was not disputed that she gave birth to his child about 14 months later.

A narrow majority of the full bench of the Court of Session held that the couple were man and wife. Lord Justice Clerk Moncreiffe said “I am unable to resist the large and consistent mass of evidence on which the pursuer’s case depends”.

The House of Lords, however, unanimously reversed that decision. The speeches contain great rolling passages of morality. Here, for example, is Lord O’Hagan: “It does seem somewhat startling to give such an effect to such doubtful words, spoken, if at all, at a nocturnal carouse by a habitual drunkard, even then emerging from a state of intoxication, weak in mind and body, and weeping maudlin tears.”

Steuart isn’t the most influential decision in Session Cases. It’s rarely cited today. But it reminds us that litigation is about people and their very human problems. It could and should have provided the engine for a great Victorian novel.

Lord Woolman sits in the Inner House of the Court of Session and was chairman of the Scottish Council of Law Reporting from 2007 until 2008.