Mary, for preventing the murder of children, it is enacted, that if any woman shall conceal her being with child during the whole space, and shall not call for and make use of assistance in the birth, the child being found dead or amissing, the mother shall be holden and repute the murderer of her own child, though there be no appearance of bruise or wound upon the body of the child.

11. The taking of potions to cause abortion, after the child was quick, should be capitally punished, though the using such means before the fœtus fuit animatus, or to hinder conception, is to be punished arbitrarily. By the 91st canon Concilii sexti in Trullo, it is thus determined, "Eas quæ dant abortionem facientia medicamenta, et quæ fœtus necantia venena accipiunt, homicidæ pænis subjicimus."

12. If the exposed infants do thereby die, the exposers are as guilty as the takers of abortive potions, especially if the place was solitary and remote from society, and where beasts might devour them. But if they were ex, posed where people resort, and might easily be seen, those who laid them down are only to be punished arbitrarily. Since in this land most rarely are children lawfully begotten ever exposed, therefore we are not obliged to repute them otherwise than unlawfully begotten; see Matthæus de Crim. Expos. Infant. The parish where such children are found, is certainly at first to bear the burden of their maintenance and education,

TITLE XI.

Of Incest, Adultery, Bigamy, Rapes, Fornication, et de Venere. Monstrosa.

1. Incest is defined by civilians, to be, " Fæda et nefaria maris et fœminiæ commixtio, contra reverentiam sanguini debitam ;" and they divide it into two kinds, viz. that which is against the law of nature; of this sort is all copulation between ascendants and descendants; the other branch is that which is against the municipal law

of the country; but our law does not observe this distinction; for it is enacted by Parl. 1. Jam. VI. act 14. that whosoever pollutes his body with such persons in degree as God's word doth contain, Levit. xviii. shall be punished with death. By the act of Assembly 1648, sess. 38. incestuous persons, in case the magistrate doth not punish them capitally, are to make public profession of repentance for the space of 52 Sabbaths; but this act is innovate and amended by the 4th act of Assembly 1705, and the 11th act of Assembly 1707.

2. Adultery is the violation of another's bed: hence some give its derivation ad alterius thorum, and is committed by a married person's lying with an unmarried, or an unmarried person's lying with one who is married. If the woman with whom the adultery is committed was at that time living as a common whore, and the committer was a single man, and knew nothing of her being married, his punishment should be moderated on that account; but if the man was married, the crime is the same, whether the woman was a whore or not, it being still a violation on his part. And that the lying with a man's betrothed or affidat spouse, may be constructed adultery, (see pages 296, 297;) because he who lies with one who is to be shortly married, renders the succession as doubtful as he who lies with a married wife.

3. Notour adultery is by the 74th act of Parl. 9. Queen Mary, declared to be punishable by death, after premonition is made to abstain from the same manifest and notour crime. Yet by the explanation of this act given by the 105th act, Parl. 7. Jam. VI. that is only declared to be notour adultery, where, 1st, There are bairns ane or mae procreated betwixt adulterers. 2dly, When they keep company or bed together notoriously known. 3dly, When they are suspected of adultery, and thereby give slander to the kirk, whereupon being admonished to satisfy the kirk, they contemptuously refuse, and for their refusal are excommunicate. If either of which three degrees be proved before the Justices, the committers are punishable by death.

4. Although there be no express law for inflicting death

upon ordinary adulterers, yet Mackenzie on this title thinks, that judges are not hindered to inflict the punishment of death upon ordinary adulterers, by any thing expressed in that forecited act of James VI. otherwise, it should be an act in prejudice of the law of God, which expressly ordains adulterers to be put to death, Deut. xxii. By Justinian's 134. N. cap. 11. the civil law is altered, appointing death to be inflicted upon adulterers; and by the law of most nations, adultery is only punished by pecuniary mulcts. With us notour adultery has been punished with death, and single adultery arbitrarily.

5. By the act of Assembly, Aug. 5. 1642, all presbyteries are ordained to give up to the Lords of Justiciary the names of the adulterers and incestuous persons, witches, and sorcerers, within their bounds, that they may be processed and punished according to law. By Assembly 1648, sess. 38. a person being once guilty of adultery, is to make public profession of repentance twenty-six Sabbaths in sackcloth; and a relapse in adultery three quarters of a year: but this act is innovate and amended by the forecited act 4. of Assembly 1705. And by that same act 1648, persons guilty of a relapse in adultery are to be more summarily excommunicated.

6. Since adultery is only committed by married persons, it is therefore requisite that the libel in adultery bear, That such persons were married; and except it be proven or be notour to the assize, they should not file the pannel, though copulation be proved. Adultery may be proven by strong and violent presumptions, as the being in bed together alone, and being naked, and the being frequently alone together. Likewise gifts, love-letters, close doors, the wife's being abroad all night, the entertaining persons that are known to be pimps, and cohabitation, are all presumptions, upon which it is ordinary for assizes to file pannels, with the assistance of any other probation.

7. By the 11th act of Assembly 1707, cap. 4. if the woman who hath brought forth the child, doth declare she knoweth not the father, and that she was not forced,

whether married or unmarried, the same censure is to be inflicted upon her as in the case of adultery. But if she allege she was forced in the fields by a person unknown, in that case the former behaviour of the woman should be inquired into, and she seriously dealt with to be ingenuous; and if she hath been of entire fame, she may be put to it to declare the truth, as if she were upon oath, but not without the advice of the presbytery, and no formal oath should be taken.

8. In our law a man marrying two wives, or a woman marrying two husbands, commits bigamy; and this is accounted by the 19th act, Parl. 5. Queen Mary, a breach of the oath made at marriage, and therefore is punishable as perjury, by confiscation of all their moveables, warding of their persons for year and day, and longer during the Queen's will, and as infamous persons never to bruik office, honour, dignity, or benefice in time coming. It may be doubted if Quakers can be punished as perjurers, seeing they give no oath at marriage, and certainly they should, seeing marriage implies a vow, though no explicit oath be given. It may be doubted also if the two persons marrying be guilty of bigamy eo ipso that they marry, though because of some intervening accident they bed not, but seeing by the second marriage they give contrary oaths, certainly they are guilty of perjury; for perjury being the medium peccati in this crime, and not copulatio or coitus, as in adultery. "Reatus contrahitur per contrariæ vota."

9. Rape, or ravishment, is that crime which is committed in the violent carrying away a woman from one place to another, for satisfying the ravisher's lust, and is in the civil law punishable by death, L. Un. C. de Rap. Virg. &c. The canon law describes it thus: "Est rapina et violentia quædam, qua mulier de cujus nuptiis nihil actum est antea, abducitur, invitis parentibus." By the 4th act, Parl. 21. James VI. it is declared, that although the consent and declaration of the woman ravished, declaring that she went away of her own free will, may free the committer from capital punishment, yet shall it

not free him from arbitrary punishment; which act insinuates that the crime with us is otherwise capital.

10. Since minors are punishable for adultery, much more ought they for a rape; for men in these years are more prone and liable to perpetrate such extravagancies than when at a greater age. Though it may seem that whores are infra legum observantiam, and ought not to have protection from law, who offend against it; yet if the whore be now become a penitent, and reconciled to the church, and for a long tract of time hath had a chaste and laudable conversation; it may be doubted if the ravisher of such a person may not be punished pæna ordi

naria.

11. Fornication is committed by the carnal knowledge of unmarried persons. The canon law distinguisheth thus: "Stuprum (say they) est virginis defloratio, et illicitus cum vidua concubitus." That law commands such abusers of virgins to marry them, the parents consenting thereto; and if they refuse to do so, his body is to be chastised, and himself excommunicated. But if the father of the corrupted virgin will not bestow her upon him in marriage, then the man is obliged to give her such a dowry as virgins of her degree and quality use to get. That same law says, simple fornication is concubitus soluti cum soluta et impudica, the punishment whereof is left unto the judge's discretion. That there should be a distinction of punishment inflicted upon the deflowerers of virgins, and abusers of honest widows, from those who abuse themselves with such women as have sinned so already, is very reasonable. By the act of Assembly, Aug. 10. 1648, fornicators are to make profession of their repentance three several Sabbaths; who are guilty of a relapse therein, six Sabbaths; who are guilty of a trilapse, twenty-six Sabbaths; and of a quadrilapse, three quarters of a year, all in sackcloth, and are first to appear before the presbytery, confessing their sin there, before they be admitted to public profession of repentance for it; but this act is reformed and amended by the Form of Process. By cap. 38. sess. 1. Parl. 1. Car. II. fornication is fine