Images de page

attacked Mr. Hume's premises, and the principles of Locke upon which they are founded: indfting that reasoning holds of common sense, not common sense of reasoning, and that by the very force of natural conftitution we are led as certainly to believe the permanent existence of things, and certain connections among them, as we are to be fenfible of certain impressions and ideas. This therefore is the point in question: which our author has not so much as touched. He has not, therefore, of courie, observed, that Mr. Hume allows all that Mr. Beattie contends for, and yet preffes his own conclusions. Hume admits that when he leaves the studious Thade where all things appear loose, unconnected, an enigma, a dream, and comes into the busy world, he feels the power of nature which makes him in fact, feel, and think, and act, like other men. But he still insists that by reasoning he cannot see any necessary connexion between cause and effect, and as this relation is that on which we found the belief of permanent existence, that the permanent existence of every thing is dubious and uncertain.

At the same time that our author has by no means entered into the views and reasonings of Dr. Beattie, and Dr. Reid of Glasgow, the father of that philosophy which Beattie adopts, he has given a very faithful abstract of the reafonings of Mr. Hume which he thinks unanswerable, and therefore leaves it to speak for itself.

He proceeds to prove, by the common arguments, the existence of free-will or liberty, a providence and a future state. He lays great stress on a weak argument, taken from the 1hort period that lies within the reach of history and tradition. Here he reasons on Hume's principles, that as we have had no experience of such deluges or other natural conyulsions as might have destroyed more antient traces of human kind, therefore we have not evidence that they ever exifted.

Art. XV. A Collection and Abridgement of celebrated criminal

Trials in Scotland, from A. D. 1536 to 1984. With historical and critical remarks. By Hugo Arnot, Esq. Advocate. 4to.

185. boards. Printed for the Author, Edinburgh. 1785. TO spring forward, and to illustrate the ancient criminal

records of a nation is a task not only laborious, but of extreme utility. It exhibits materials for the historian, the lawyer, the philosopher, and the antiquarian. It shows society in its progression, and throws a light upon manners, jurisprudence, civilization, and government. It is surprising of consequence, that collections of this kind are so rare.


[ocr errors]

They suit not, indeed, the jealousy of despotical kingdoms; but they are peculiarly calculated for states where known and established laws fêcure liberty to the subjects, and teach the prince that there are limits which he cannot overleap with impunity.

In turning over the public monuments of his nation, Mr. Arnot has not employed merely, a laborious diligence, He is by no means deficient in penetration; and he appears to have made a very considerable progress in the study of his profeffion. From a desire of rendering his publication the more generally entertaining, and that he might not disgust his reader with the uniformity of judicial details, he has avoided to furnish exact transcripts of the records which attracted his attention. In general, it is his care to give abridgements of them; and in the execution of this undertaking, he endeavours with anxiety to separate the gold from its encircling rubbish. In consequence of this method, he certainly gains the point he had in view of accommodating his publication to the most common capacities. But to us, it is obvious, that by this means he has detracted infinitely from the authenticity of his performance. An ancient hif. torical and legal record is not easily understood, and will be interpreted very differently by different persons. Mr. Arnot, we doubt not, has explained with entire fidelity, ac. cording to his understanding, the records he has examined. But it does not follow that he is therefore right. On this account we could have wished that instead of abridging them, he had published them exactly in the form in which. he found them.

If the Scots are desirous of having an authentic history of their law and of their nation, they must hold out to the public their archives in their real nakedness and purity; and not in abridgements and descriptions. This has been the case with regard to England. The records, preserved by Madox in his various publications, comprehend the most valuable materials of the English story; and they may serve to illustrate the remark we have applied to Mr. Arnot. For when Mr. Madox comments upon his own collections he often misinterprets them. Grateful for his pension as historiographer he not unfrequently explains, as favourable to the prerogative, vouchers which are decidedly descriptive of the majesty of the people.

The criminal trials which Mr. Arnoi describes are curious in themselves, and of great variety. They have a reference to treason, leasing making, parricide, murder, tumult within burgh, piracy, forgery, breaking of gardens, inceit, adul. tery, fornication, blasphemy, irreligion, and witchcraft.


Some of the trials in this collection are of high importance. Of this fort is the trial of Mr. Archibald Douglas, parfon of Glasgow, for the treasonable murder of Henry King of Scots. The same observation will apply to the trial of John Earl of Gowry, and Mr. Alexander Ruthven for confpiring against the life of James VI. But our bounds do not permit us to enumerate and characterize the

ises of our compiler in their succession. In general, it is to be observed that instruction arid amusement are afforded in all of them.

As a specimen of the present publication, we shall submit the following passages to our readers.


Alexander Blair taylor in Currie. Alexander Blair, taylor in Curry, was criminally prosecuted by his Majesty's Advocate for inceft. The fact charged again it him was, that he had carnal knowledge of one Catherine Windrahame, his first wife's half brother's daughterAnd being admonished by the kirk to abstain from this connection, instead of yielding, obedience, he fled to England with the woman, and there married her. The jury unanimously found him guilty, and the court ordained him to be beheaded.

James Wilson coal-grieve at Bonhard. The prisoner was tried before Mr. Alexander Colvil Justicedepute, at the instance of Mr. Thomas Nicolson, his Majesty's Advocate. The indictment accused him of having committed incest with Janet Carse, daughter of Agnes Brown his wife, about thirtyfive years since, or thereahovt, his wife being then alive ; also, ot having committed adultery with Jean Walker during the lifetime of his said wife.

· The prisoner with great penitence confessed his guilt before the court and jury; and a verdict being returned against him, the court ordained him to be taken on the next day to the Caitlehill and beheaded, and his personal estate to be forfeited.

William Drysdale and Barbara Tannabill. • William Drysdale and Barbara Tannabill were served with separate indictments, accusing them of having committed incest with cach other. The crime libelled was, that the prisoner William Drysdale, a widower, (whose wife, a sister of the other prisoner, had been dead for two years), had layen with the faid prisoner, Barbara Tannahill : And that, by an act passed in the reign of King James VI. parl. 1. chap. 14. and by the 18th chapter of Leviticus, this crime inferred the pain of death. The charge against Barbara Tannahill was the fame, mutatis mutandis.

" Informations, neither ingenious nor elaborate, were lodged for and against the prisoner, Dryidale. The court repelled the defences, and found the libel relevant.


Τ Η Ε PROOF. Barbara Taonahill judicially confessed that she had layen one time only with the other prisoner, Drysdale, and that she was now with child by him.

• Mr. Samuel Semple minister at Liberton deposed, That Barbara Tannahill confefled ber guilt before him and the kirk-feffion; and that he interrogated the other prisoner Dryfdale, who expressly disavowed the charge.

' Robert Hardie deposed, That one evening going by the house where the prisoners lived, he heard Barbara Tannahill's voice calling out, once and again, O dear! and did hear the other prifuner using expressions of entreaty, or rather violence, towards her. And that the prisoners lived in a house by themselves.--Two other witnesses swore to Tannahill's confeffion, and Drysdale's denial, of guilt: That Drysdale's wife had been dead for two years; and that the prisoner, Tannahill, was her fifter.

The jury found the indictment proved against Tannahill, but found nothing proved against Dryidale but the woman's judicial

confeffion, which is a great prelumption of his guilt.'-The court adjudged Tannahill to be hanged, and Drysdale to be banished for life,

• Even according to the Mosaick law these unfortunate persons could not have been legally convicted, and the Scottish statute de clares 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 fame, the command must likewise be understood to be, Thou shalt not lie with thy wife's fiftere To this it may be answered, -imo, That to fuppofe a penal law reaching life not to be express 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. 3010, To do so is not only incest but adultery. 4to, It is not commanded Thou fhalt not lie with thy brother's widow. 5to, This connection by affinity is diffolved, and the survivor is loosed by the death either of husband or wife. 6to, This argument is completely illustrated by the command in a subsequent verse of the fame chapter, Thou fhalt not vex thy wife by lying with her sister in her ..... lifctime. 7mo, To marry a brother's widow was an express înjunction of the law of Mofes ; and if the surviving brother declined the match, the widow was entitled by that elegant and dignified system of jurifprudence to-Spit in his face.-These arguments however were either omnicted or over-ruled.

• A rancorous detestation of irregular commerce between the sexes, has distinguished those religious fects which pretend to an uncommon degree spiritual purity, and in a peculiar manner ENG. Rev. Oct. 1785.



[ocr errors]

rigid disciples of Calvin. Indeed the Apostle 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 fpecies.

• The instructive page of history, and the fatal warnings recorded in criminal courts, lufficiently evince what public mischief

, what private conflict, what dark and atrocious crimes have proceeded from a mistaken notion of religion, inculcating a perpetual warfare with the dictates of nature.

• The preservation of morals, by debarring a union between perfons whore frequent opportunities pave the way to debaucheryThe preventing a perplexity in the degrees of kindred-Perhaps also, the preferving a strong and healthy breed, have induced civivilized nations to prohibit as inceituous, commerce between persons nearly connected by confanguinity. It does not appear that the fame reasons apply to the debarring such union between those who are connected by affinity.--Alter the husband is dead, the wife surely is not guilty of adultery by entering into a second marriage ; for, if the husband be dead, he is loosened from the law of her husband." If so, I do not perceive how the connection thus dissolved by death, can imply against the furvivor, the crime of inceft, 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 pofleffed a jurisdiction. The flightest informalities between the fexes excited zealous abhorrence. Io avoid the disgrace of the repenting. Aool, many, a miserable wretch dared a guilt which was to be ex. piated by the pain and ignoniny of the gallows. The prefbyterian clergy, in matters of scandal and witchcraft, arrogated to thema selves the office of public prosecutors, of inquisitors general; and fo late as the 1720, the ministers, in behalf of themselves and their kirk fessions, publicly exercised this office in our courts of justice. Their busy zeal in hunting 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, their persecution was directed at unhappy women who bed obeyed the impulse 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 fame 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.'

In the course of his volume Mr. Arnot found himself un• der the necessity of delivering his opinion upon a variety of difficult and important cases; and here, we must do him the


« PrécédentContinuer »