1617 aside the name of Laird, which he bore in Forfar, w and assumed that of Guthrie, and there marrying another wife, with whom he cohabited for several years; and also, of committing adultery with another woman. These facts he acknowledged before the Kirk-session of Kirkliston, and did penance in sackcloth for his impurities.-Being thus detected and stigmatized by the church, the secular arm was next stretched forth against him. A warrant under the royal sign manual, dated at Whitehall, 26th of January, 1617, was directed to the Lord Justice General, and the other Justices. It set forth, that the King's Advocate, by his Majesty's express command, was about to prosecute the prisoner for the crime of notorious adultery, and required the Justices instantly, on his conviction, to condemn him to death. The Court had the humanity not to enter this warrant upon record till about a month after the prisoner's conviction, when it sentenced him to be taken to the Cross of Edinburgh, and hanged on a gibbet till he be dead; and he appears to have been carried to immediate execution.

Two other persons, Alexander Thomson and Janet Cuthbert, were also, by royal warrant, tried for adultery on the same day with the prisoner, and were convicted. But the King was pleased to direct, that out of his princely clemency, they should not be put to death, but banished.

Patrick Robertson and Marion Kempt, for Adultery.

THE prisoners were accused of adulterous com- 1627

merce with each other; the fruits of which were, Marion Kempt's bearing three children to the said Patrick. They were also charged with the said Marion's having, with Patrick's knowledge and con sent, taken poisonous drugs, by which her first child was killed in the womb. They were convicted on their own confession; and, on the 20th of the same month, were sentenced to be hanged on a gibbet at the Castle-hill.

John Fraser, Writer in Edinburgh, for Adultery.

Counsel for the Prosecutor,

Sir George Mackenzie.

Counsel for the Prisoner, Sir
George Lockhart, &c.

THE prisoner was tried capitally for the crime of 1673

adultery, at the instance of his wife, and of Sir John Nisbet of Dirleton, his Majesty's Advocate. The fact libelled against him was simply, that, in absence of the private prosecutor, he had married another

woman.

The prisoner's counsel urged in his behalf, that although the private prosecutor had a right of action to annul the second marriage, and to compel the adherence of the prisoner;† yet she had no title to prosecute him criminally, ad vindictam publicam, in a suit, in which if she prevailed, the husband whom

* Records of Justiciary, 18th, 20th, December, 1627. + Rec. of Just. 17th Nov. 1673, 12th Jan. 20th July, 1674.

Y Y

1673 she claimed must be bereft of his life. That if any

irregularity, or offence, has been committed by the prisoner, it was owing allenarly to the snares laid for him by his wife, the insidiousness of whose malice could only be paralleled by the effrontery of her prostitution. The prosecutor having been equally public and promiscuous in her debaucheries, the prisoner had several years before been obliged to sue, before the Commissaries of Edinburgh, for a divorce from her; but, conscious of guilt and infamy, she had embarked on board a ship destined to carry felons to Virginia, and the prosecution was suffered to drop. After having been absent for a considerable time, a report of her death was circulated and believed, and what was at first a rumour, became afterwards evidence; the shipmaster, one of the seamen, and a passenger on board the ship in which the prosecutor embarked, having given a testificate on oath, of her having died in Virginia. This testificate was laid before the Presbytery of Edinburgh; and the clerk of the Kirk-session was ordered to examine into the same. Having done so, he was satisfied by the granters, that the certificate was true, as well as authentic. This report being laid before the Presbytery, they authorised the proclamation of banns, which was regularly performed; yet no interruption was made to, no question brought of the marriage, for upwards of four years. And, at the end of this period, the prosecutor starts up as from the dead, with a halter in her hand, menacing the prisoner.

It now appears that she had lurked for great part of that time in Aberdeen, Dundee, &c. under the name of Mrs. Gerard; that she had circulated the

report of her own death: that, since her assumption 1673 of a feigned name, her life had been as profligate as before her embarking for Virginia. And that she had brought forth three adulterous children, the unequivocal testimony of her shame and guilt; one of them not six months preceding this very trial, which she has brought in order to get her husband hanged on a charge of adultery. It was argued, that the prosecutor's infidelity to the marriage vows had given occasion to the suit for a divorce, which the prisoner had brought against her before the Commissaries; and authorised the process of recrimination before this Court, which the prisoner was immediately to institute: that this infidelity would exclude the civil effects of a divorce, and much more ought to debar his wife from prosecuting the husband capitally for the very offence she had committed against him.— That she had laid a snare for him, by propagating rumours of her own death, and by lurking under a feigned name. Besides these defences, it was argued for the prisoner, that adultery could not be commit ted without consciousness, nam voluntas et propo"situm distinguant maleficia.' And the probable rumour, nay the direct certificate of the prosecutor's death, exempts from the suspicion of consciousness, and consequently from the crime of adultery, according to the case in the civil law, Mulier cum audisset absentum virum defunctum* esse, alii se 'junxit, et falsis rumoribus inducta, et quia verisimile 'est eam deceptam fuisse, nihil vindicta dignam vi. ⚫ deri potest.'

It was answered for the prosecutor, That he is an

*Digest. L. 11. § 12. de adulteriis.

1673 adulterer who lies with another woman while his wife lives; and, as rumour could not dissolve marriage, so neither could it defend against adultery; otherwise it were easy for any man who grew weary of his wife, to propagate reports of her death, and then to take advantage of the rumours he himself had fabricated. That even, if rumours were suffi, cient, yet these ought to be constant and universal; whereas, in this case, there was but one certificate, and it bore only, that Margaret Haitly died in Vir, ginia, not that Margaret Haitly, wife of John Fraser, died in Virginia: that it was not probable, but invincible ignorance alone which could be excusable: that the prisoner had not made sufficient inquiry concern. ing his wife at her relations, and his ignorance was affected; that a long lapse of time must intervene; whereas here, there was but an absence of three years; that the prisoner ought to have executed a summons of adherence against his wife, which would have entitled him to a divorce; that the Presbytery of Edinburgh had not a jurisdiction competent to the dissolution of marriage; consequently their warrant was altogether insignificant.

To this sophisticated reasoning the Court gave the sanction of its judgement, repelling the argument urged in behalf of the prisoner.

Nothing now remained but to lead a proof of the fact. The proof amounted solely to the prisoner's having married Helen Guthrie his second wife, and lived under the same roof with her as married per sons. Even the consummation of the marriage is not proved, but is only matter of presumption. The jury by plurality of voices, viz. nine to six, found the prisoner guilty.