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ANDERSON V. MARSHALL [1799] VII BROWN. been adduced in the present cause, and indeed so insufficient, that the court afterwards, with the same unanimity, acquitted the defendant from the action of divorce. The same judgment had been pronounced in the case of Carruthers in 1742.

VI. No argument, as from analogy, arises from the testimony of the alleged adul- terer being received against the defendant. There the bias must be against the party who recurs to the testimony; and there too the witness must speak to facts and cir- cumstances, laying him open to contradiction and refutation. A deposition, merely stating that the witness had committed adultery with the person accused, would be of no signification. The prosecutor is entitled to make out his case by the evidence of every person conusant; and though no person can be obliged to criminate himself, yet that is an objection which lies in the mouth of the witness alone.

Objection. The appellant admitting, that if there were direct or conclusive proof against her, she could not examine persons upon whom guilt is fixed, to swear singly and flatly that they were not guilty; and allowing at the same time that the evidence affords violent suspicion, argues, that it is still but suspicion; that allowing every cir- cumstance proved to be true, it is still possible that her crime may not have been complete; and therefore, that she ought to be allowed to bring the persons accused as having been guilty with her to swear in the negative, if they are at liberty to do so, leaving it then with the court to weigh their evidence in the scale against the cir- cumstantiate proof.

Answer. The proof cannot with propriety be called circumstantiate; it is con- clusive, though not so direct as occurs in some cases, where the parties are altogether unguarded and surprised in the very act. If the proof is not conclusive, the appellant has nothing to fear, and nothing to guard against, by the exculpation proposed. It is perfectly evident that the appellant's [623] argument would apply with equal force to the case of a married woman found in bed naked with a man who was not her husband. There is still a possibility that the last act of criminality may not have been committed, and there seems to be no drawing a line. If the oath of the paramour is to be admitted in all cases, it would be an encouragement to immorality, vice, and perjury.-"Let it be supposed (said one of the learned judges) that the wife is the prosecutor, and that the person with whom the husband is accused is a young woman previously of unblemished character; a greater temptation to perjury cannot be conceived than such a person is under, if adduced as a witness. Is it possible to suppose that she would speak out, when her doing so must bring upon her inevitable ruin and disgrace? Her silence would have the same effect: so that if adduced and guilty, she must perjure herself, or stand self-convicted. The law of Scotland will not suffer a person to be placed in such a predicament."

VII. Though the single question agitated before the commissaries, and brought before the Court of Session by the appellant's bill of advocation, was, Whether she could be permitted to examine Lord Elgin and Doctor Harrison as to their having com- mitted adultery with her on any occasion, or upon the different occasions stated in the proof, when from situation and circumstances guilt was to be inferred or presumed? -Yet, in her reclaiming petition to the Court of Session, she affected to say, there might be circumstances which their evidence would explain or establish so as to take off the force of the evidence on the respondent's part, without making the proposed witnesses speak directly to their own innocence or guilt, and without contradicting facts ascertained by the testimonies of the witnesses adduced against her. But it was an- swered, and this was not the point at issue; she had never till then insinuated that she had occasion for Lord Elgin's or. Doctor Harrison's evidence upon collateral circum- stances; when she did, and stated what the precise circumstances were, she would receive an answer. But it is perfectly evident that no such circumstances which were material could exist. It is not pretended that any one of the circumstances established by the respondent's evidence is false, except that of the appellant's being pent up in the gateway with Doctor Harrison, which she feels herself at liberty to dispute the truth. of, because of the character of the witness, though his testimony is strongly corrobor- ated by that of another witness. Every thing else is broadly admitted, and therefore Lord Elgin and Doctor Harrison, however much disposed or at liberty to favour the appellant, can go no farther, upon her own hypothesis, than to swear that, notwith- standing all appearances and all the opportunities afforded them, they nevertheless abstained from the last act of criminality. And if they should so swear, who would 403