July 1751.

N° 59.

His MAJESTY'S ADVOCAT E,

AGAINST

THOMAS GRAY, Chriftian Duncan, James Syme, and Thomas Brown,

Forcible abduction and forcible marriage.- Not neceffary that the jury hear the debate on the relevancy. Arbitrary punishment.

T

HE criminal letters against Thomas Gray and Christian Dun

can, fet forth, That where, by the laws of God, and of this and all other well-governed realms, the ravishing of women, or the forcible abduction or violent carrying away a woman from one place to another, with intent either to violate her perfon, by lying with her carnally, or to force her to a marriage against her will; and the celebrating, or the causing a marriage, or the form thereof, forcibly, and by concuffion, to be celebrated betwixt a man and a woman, without the free confent, and against the will of fuch a woman, are crimes of a heinous nature, and feverely punishable; efpecially when fuch force and violence is used by or on behalf of a man of desperate circumstances or broken fortune, and against a woman who is minor, under age, and poffeffed of a land-eftate, or otherwife of confiderable fortune or fubftance; and when any of the actors or accomplices was herself a woman, trusted by the young woman fuffering wrong, or her parents, to accompany her for a limited purpose, and abused and betrayed that truft; and when the different actors added a fraudulent confpiracy or machination to force and violence: Yet true it is and of verity, &c. And then it is particularly charged, That Thomas Gray, a man of defperate fortune, having found means to get into the company of Jacobina Moir, only child of the deceased James Moir of Earnslaw, then in the fifteenth year of her age, did, in order to remove all fufpicion

of

of his real intentions, pretend, that he was to be married to a jeweller's daughter, with whom he was to get a fortune; and afterwards attempted to get into a correfpondence with the faid Jacobina, and addreffed letters to her at different times, and way-laid her on the streets of Edinburgh when paffing to her fchools, and pressed her to walk with him; but fhe having returned his letters, and refused his folicitations with difdain, he did, in order to poffefs himself of her fortune, contrive a wicked scheme of getting her perfon into his power, and entered into a confederacy for that purpose with Christian Duncan, milliner or mantua-maker in Edinburgh; who, to ferve his views, got acquainted with the faid Jacobina and her mother. That in the afternoon of the 3d of May 1751, the faid Jacobina did, with the permiffion of her mother, and attended by a young woman about fixteen, accompany the faid Chriftian Duncan from Edinburgh to Canonmills in a hackney-coach, where they drank tea with the faid Jacobina's mother, and then proceeded to Leith; from whence it was agreed the faid Jacobina and her fervant fhould return straight to Edinburgh in the coach with the faid Christian Duncan, who pretended that she was to carry up fome fmuggled goods then lying at Leith. Accordingly, between five and fix in the evening, Christian Duncan carried them to a house in Leith; and having fent the fervant out of the way on a pretended errand, left Jacobina alone in a room; and then Thomas Gray entered: but upon her refufing to stay in the room with him, and calling out, Chriftian Duncan returned into the room, affected surprise at feeing Gray there, and caufed him to retire; and upon the return of the fervant, Jacobina feeing none of the goods Christian Duncan had mentioned, infifted to be carried back to her mother at Canonmills: with which defire Duncan pretended to comply: but instead of caufing her to be carried back to the Canonmills, or to Edinburgh, Duncan acting in confederacy with Gray and James Syme, one or other of them, by giving private directions to the coachman, caufed her to be carried in the coach, without her confent, and against her will, feveral

miles out of the way along the fea-fide, as far as Muffelburgh water, where the coach turned, and brought them near to the west end of the fands of Muffelburgh. By this deviation, the day being far spent, and night coming on, and few or no company paffing the road, Gray and Syme came up on horfeback to the fide of the coach, alighted from their horses, and Duncan having opened the coachdoor, they went into it; and Gray declared his determined refolution of being married to the faid Jacobina that night; who being greatly alarmed, fell a-crying, and fhed tears; and the faid Gray threatened to carry her on board a boat, which he said was waiting on him at hand, and put her in a fhip, and carry her to fome distant place, where she should never fee her mother, or any of her friends again, unlefs fhe complied with his defire of being inftantly married to him; and then he fent the coachman, with the two horfes which had brought him and Syme thither, to Jock's Lodge, to bring from the house of Helen Brown, a gentleman, who, he faid, was there waiting for him; the coach, in the mean time, standing ftill, and all the faid company in or about it: and the coachman having returned, with Thomas Brown, alias William Jamiefon, who was faid to be a minifter, he also was brought into the coach, and there took upon him to celebrate a marriage between the faid Thomas Gray and Jacobina Moir, without the confent and against the will of the faid Jacobina, who was crying and fhedding tears: after which Thomas Gray ordered the coach to drive directly to the houfe of Helen Brown at Jock's Lodge, where they forced her to fign marriage-lines: and then Gray, with the affistance of Christian Duncan and James Syme, attempted to fling the faid Jacobina on a bed, in order to confummate the pretended marriage; but fhe but the preserved herself from falling upon the bed, by laying hold of the curtains; and calling out for aid, he confented to return into the coach; and they all having gone into it, they fet her down at her mother's house in Canonmills about two o'clock of the morning of the 4th of May and the faid Jacobina Moir and her fervant, immediately on

their getting home, informed her mother, and father-in-law, of the misfortunes and diftreffes they had met with, &c. *.

Syme and Brown were feparately indicted; and after both libels were read, the pannels pleaded, Not guilty: upon which the Advocate moved, That on account of the connection, the libels fhould be conjoined, and the trial proceed on both at once, unless the pannels. would infift to have the trial divided, that they might have the benefit of one anothers evidence, in cafe any of them were acquitted. The counfel for the pannels anfwered, The profecutor might carry on the trial as he pleafed; and though they did not confent, yet they did not mean to object; because, whatever exculpatory evidence. would be fufficient to acquit any of them, would be fufficient to acquit all of them.

The court, July 15. 1751, in refpect the pannels do not object, nor infist for separate trials, conjoined both libels, and declared t they would proceed in the confideration and trial of both at one "and the fame time."

Counsel were heard, and informations ordered.

It was, in the first place, pleaded for the pannels, That the whole effence of the crime confifted in the alledged forcible marriage; and it appeared from the libel the marriage happened on the west end of Muffelburgh fands, within flood-mark; and therefore, in the first inftance, it could only be tried before the admiral; act 1681, c. 16. Anfwered, The libel fays, the forcible marriage was celebrated: 66 on the weft fide of the burn or stream of water which runs "through the weft end of Muffelburgh fands into the fea." It does not appear from this, that the coach flood within the flood-mark ; for the road from Muffelburgh to Edinburgh, which is moftly used: at high-water, paffes through the Friggat-whins, and then croffes. the burn not far above where it enters upon the fands, but fo far up.

* Before their trial came on, while in prifon, they preferred a petition to be admitted to bail; infifting, that the crime was not capital. The Advocate put in anfwers, contending the crime was capital; and therefore oppofing the demand. But the court admitted Gray, Duncan, and Syme to bail.

as

as to be a paffable road at high-water, that is, without the floodmark. And fuppofing it fhould come out upon proof, that the place where the coach stopped was within flood-mark, yet ftill in reality it was upon the King's highway betwixt Muffelburgh and Edinburgh, or betwixt London and Edinburgh; because travellers take the benefit of the fands, as equally near, and better road, unlefs at highwater. Now it would be strange, if the law fo ftood, that a crime committed upon a public road, within the county of Edinburgh, fhould not be triable by this court, fuppofing that crime had no connection with any thing elfe done upon other parts of the kingdom where the fea-water never comes.

But that is not the cafe here. For the crimes charged consist of a series of facts, tending to the accomplishment of a criminal and wicked design, and committed at Edinburgh, Leith, and Jock's Lodge, as well as upon the road. The forcible abduction was begun from Leith, although, in the course of it; the coach paffed along the fands of Muffelburgh; many of the other facts relating to the forcible marriage, were devised, prepared, and profecuted, upon dry land, far without the flood-mark; and as the admiral could. have no jurisdiction as to the offences committed on land, yet these being all links of the fame chain, and partes ejufdem negotii, if this court had no jurisdiction, they could not be punished at all, which would be abfurd.

Lastly, This is not a maritime or fea-faring question, as to which only the admiral has an exclufive jurisdiction, by the act 1681 *.

The fecond objection was to the relevancy of the libel. Forcible marriage is not, per fe, a diftinct crime, separate from the force used to bring it about. Force is no doubt punishable in every cafe: but to bring about a marriage by force, is not more criminal by common law, than to bring about any thing else; for fuch a marriage is, ipfo

* There was a great deal of argument upon this point, but it is unneceffary to fate it, as it was repeated in Mungo Campbell's cafe, and the point settled by the judgement in his cafe.