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1673
Counsel for the Prosecutor,
Sir George MacKenzie. Counsel for the Prisoner, Sir George Lockhart,
&c. The prisoner was tried capitally for the crime of 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 annull the second marriage, and to
compel the adherence of the prisoner*; yet she had no title to prosecute
him criminally, ad vindictam pulicam, in a suit, in which if she
prevailed, the husband whom she claimed must be berest 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 parallelled 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 felon's 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 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 of a feigned name, her life had been as prosligate 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 of 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
committed without consciousness, 'nam voluntas et propositum distinguant
malesicia.' 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 cafe in the
civil law, 'Mulier cum audisset absentum virum defunctum**
'effe, alii fe junxit, et falsis rumoribus inducta, et quia verifimile
est eam deceptam fuisse, nihil vindicta dignum videri potest.'
It was
answered for the prosecutor, That he is an 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 propogate reports of her
death, and then to take advantage of the rumours he himself had
fabricated. That even, if rumours were sufficient; yet these ought
to be constant and universal; whereas, in this cafe, there was but one
certificate, and it bore only, that Margaret
Haitly died in Virginia, not that
Margaret
Haitly, wife of John Fraser, died in Virginia; That it was
not probable, but invincible ignorance alone could be excusable;
That the prisoner had not made sufficient inquiry concerning 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 adhearence 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 judgment, 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 persons. 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. |
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