may Even according to the Mosaic law these unfor- 1705 tunate persons could not have been legally convicted, and the Scottish statutes* declares the Mosaic law, as laid down in the 18th chapter of Leviticus, to be the rule for determining incest. In the information for his Majesty's Advocate against the prisoner Drysdale, an unwarrantable and absurd extension of this crime was attempted. That as it is there commanded, Thou shalt not lie with thy brother's wife, so from the degrees of affinity being the same, the command must likewise be understood to be, Thou shalt not lie with thy wife's sister. To this it be answered.-1mo, That to suppose a penal law reaching life not to be expressed but implied, is to deem us to be governed not by law but by despotism. 2do, To lie with a brother's wife occasions an uncertainty as to the progeny. 3tio, To do so is not only incest but adultery. 4to, It is not commanded-Thou shalt not lie with thy brother's widow. 5to, This connection by affinity is dissolved and the survivor is loosed by the death either of husband or wife. 6to, This argument is completely il lustrated by the command in a subsequent verse of the same chapter,-Thou shalt not ver thy wifef by lying with her sister in her......lifetime. 7mo, To marry a brother's widow was an express injunction of the law of Moses; and if the surviving brother declined the match, the widow was entitled by that * James VI. parl. 1. c. 14. † The words are still more distinct and forcible in the vulgate or St. Jerome's translation, than in the English edition of the Bible. Sororem uxoris tuæ in pellicatum illius non accipies, 1705 elegant and dignified system of jurisprudence tospit in his face."-These arguments however were either omitted or over-ruled. A rancorous detestation of irregular commerce between the sexes, has distinguished those religious sects which pretend to an uncommon degree of spir. itual purity, and in a peculiar manner the rigid disciples of Calvin. Indeed, the Apostlef to whose mysterious doctrines they are peculiarly attached, has barely tolerated the giving obedience to that impulse, with which nature has directed every animal to the propagation of its species. The instructive page of history, and the fatal warnings recorded in criminal courts, sufficiently evince what public mischief, what private conflict, what dark and attrocious crimes have proceeded from a inistaken notion of religion, inculcating a perpetual warfare with the dictates of nature. The preservation of morals, by debarring a union between persons whose frequent opportunities pave the way to debauchery. The preventing a perplexity in the degrees of kindred.- Perhaps also, the preserving a strong and healthy breed, have induced civilized nations to prohibit as incestuous, commerce between persons nearly connected by consanguinity. It does not appear that the same reasons apply to the debarring such union between those who are connected by affinity-After the husband 'nec revalcbis turpitudinem ejus, adhuc illa vivente.' Biblia Parisiis * is dead, the wife surely is not guilty of adultery by 1705 entering into a second marriage; for, if the husband be dead, she is loosen'd from the law of her hus'band.' If so, I do not perceive how the connection thus dissolved by death, can imply against the survivor, the crime of incest, any more than that of adultery. A more rigid degree of Calvinism than what now prevails was established in the reign of William. The judicatories of the church possessed a jurisdiction. The slightest informalities between the sexes excited zealous abhorrence. To avoid the disgrace of the repenting-stool, many a miserable wretch dared a guilt which was to be expiated by the pain and ignominy of the gallows. The Presbyteriant clergy, in matters of scandal and of witchcraft, arrogated to themselves the office of public prosecutors, of inquisitors general; and so late as the year 1720, the ministers, in behalf of themselves and their kirk-sessions, publicly exercised this office in our courts of justice. Their busy zeal in hunting out after young women whom they suspected of being with child, and after old women who lay under the imputation of witchcraft, was productive of the most dismal consequences. In the one case, the persecution was directed at unhappy women who had obeyed the im *Romans. c. 7. V. 2. ↑ Original precognition taken before the sheriff-depute of Ross, June 23d, 1720, against Helen Bowie and Janet Thomson for witchcraft, at the instance of Mr. David Ross, minister of the gospel at Tarbatt, in behalf of the session of the said parish,' in possession of the Right Honourable Robert Dundas of Arniston, Lord President of the Court of Session. 1705 pulse of nature; in the other, at those who incurred the imputation of doing what nature rendered it impossible for them to do. In both, the pains and the piety of the clergy were productive of the same issue, the driving miserable creatures to the gallows.And the recorded convictions before the Court of Justiciary at Edinburgh, of twenty-one women for child-murder, and three men pro venere nefanda cum brutis animalibus, in the space of seven years,* afford a melancholy proof that the insulted dictates of nature, when checked in their regular course, will burst forth in a torrent that will sweep away every feeling of humanity, and every sentiment of virtue. From A. D. 1700 to 1706, inclusive.-See Rec. of Just. OF ADULTERY. John Guthrie for notour, i. e. notorious Adultery. ADULTERY was first made capital in Scotland by 1617 act of Parl. 1563. chap. 74. The thunder of the law in the statute immediately preceding, had been hurled against witchcraft; and an act passed in the present century, ' ratifies and revives all former laws and acts against drunkenness, Sabbath-breaking. swearing, fornication, adultery, and all manner of ' uncleanness;' and it specially and expressly revives* the act above mentioned against adultery. Notorious, or notour adultery, is, 1mo, When children are procreated between adulterers; 2do, When they are publicly known to sleep with each other; or, stio, When being suspected of adultery, and admonished by the Kirk to refrain from the vice, and to do penance for the scandal; yet refusing obedience, they are excommunicated for the same. James VI. Parl. 7. chap. 105. John Guthrie was prosecuted for the crime of notorious adultery. He was accused of having married a wife in the shire of Forfar, and deserted her;† of having afterwards come to Leith; of having laid * William, Parl. 1. Sess. 8. c. 11. It is a fortunate maxim in our jurisprudence, that statute law prescribes. + Rec. of Just. 14th March, 16th April, 1617. |
