Procedure, 19 December 1704, Edinburgh

Edinburgh 12th December 1704

D1704/12/4

D1704/12/4¹

Decreet

Decreit Barbara Cockburne Lady Saintmartines against her Husband

Anent the petition given in and presented to the Lords of her Majesties privie Councill by Barbara Cockburne spous to the Laird of Saintmartines Humbly Shewing, That where the petitioner was married to James Dallas of Saintmartines upon the […] day of […] who verie shortly after their marriadge begann to treat the petitioner with extream rigour and unkyndness, which Nevertheless She Supported with all dutifull Submission and patience, and would have continued to the last moment of her lyfe to doe so, if her said Husband his inclemencie and hard useage had not broke out so openly, and in ane instance which did visiblie threaten the petitioners lyfe, and in such a maner as excluded all hopes of living in anie peace or saftie, with him heirafter, she did therfore humbly represent her distrest condition in the following Circumstances, and primo albeit the petitioners said husband was so conscious as to avoyd these things openly which might affoord a legall ground of Separation, yet she was not able to express the bitterness she mett with in secret, and which she could no otherwayes prove then by adduceing the Servants in the house, and these in the neighbourhood to witness the mournings which have been heard in the roume where the petitioner was shutt up with her husband and that she had been heard to walk barefooted diverse nights in that mourning condition, Secundo after a tract of severities, and when She came to be delivered of her Chyld she offered to prove by the neighbourhood and Servants in her Family that She continued to cry out in labour from ten at night to seven the nixt morning without having any help or assistance called, And then when a midwyfe was sent for, who was accidentally out of the way, and could not attend her selfe She sent another skilled woman to assist the petitioner, yet that woman was not suffered to give her any help, and unless it had been from the help which she received in her uttermost extremitie from another, the petitioners mother sent for she most have then perished with her Chyld, Tertio when her husband was quarrelled for so great a Cruelty he made frivolous and unsatisfactorie pretences, implyeing that this treatment had been studied, and to compleat all wished he had power to bring fyre from Heaven to consume the petitioner, and her Friends, Quarto, after so dangerous and hard useage She was deprived of the pleasure of Seeing her Infant, which was carried out of the house some few dayes after it was born, without somuch as ever letting her See it, or telling her whither it was Convoyed, Quinto by these hard useages the petitioner was brought to the danger of her lyfe which She offerred to prove, There were many other important circumstances which no doubt would concurr to Satisfie the Saids Lords of the necessitie of Separation, and which She was readie alse to prove, But these She only mentioned in generall out of the decent respect which She had to her husband, and most humblie beseeched their Lordships to believe that nothing could have made her to expose her misfortune and affliction in a Complaint of that nature, But a setled belieffe deryved from the sadd experience she had of her Husbands utter aversion to her, and that if any opposition were made by him to a Separation, it was not out of affection, and would inevitablie end in the petitioners ruine, And therfor Craving that it might have pleased the saids Lords to have granted warrand to have Cited the said James Dallas of Saintmartines the petitioners husband to Compear befor their Lordships, and to hear the forsaid circumstances particularly and generally abovementioned proven, and being proven to modifie her ane aliment as the said petition bears, The Lords of her Majesties privie Councill having Considered the above petition given in to them by Barbara Cockburne Spouse to Saintmairtines, and the samen being Read in their presence, The saids Lords granted warrant to Meacers of privie Councill, or Messengers at arm’s to Cite the said James Dallas of Saintmairtnes the petitioners Husband to Compear befor the Saids Lords the fourteenth day of November instant to hear and See the Circumstances particularly and generally Contained in the above petition proven, And for that effect Granted warrant to the saids meacers or messengers to Cite Such witnesses as the petitioner Shall condescend, or for proving the matter Contained in the forsaid above petition to appear befor the saids Lords day and place forsaid and bear leall and Soothfast witnessing in Sua farras they know, or Shall be Speired at them in the forsaid matter, And Anent the charge given to the said James Dallas of Saintmartines to have Compeared befor the Saids Lords of privie Councill, in the terms of and with Certification conforme to the said acts as the samen more fully bears. And alse Anent the letters or lybell raised befor the saids Lords of privie Councill at the instance of Master James Dallas eldest lawfull son to George Dallas of Saintmartines, with concourse of Sir James Stewart her Majesties Advocat for her highness interest, Makeing Mention That albeit by the Lawes of this and all Civilized nations the conjugall affection and Societie betwixt man and wife was to be incouradged, and if mistakes and misapprehensions fell out all good Christians are to divert them, and concurr to their removall, so that the affection betwixt man and wyfe might remain suitable to the relation, and not to instigate the one against the other, or to withdraw the wyfe from the Husband therby to alienat her affection, and in her name to raise Scandalous and opprobrious lybells against her Husband, in order to procure ane aliment, wherby to maintaine the authors of the division, Yet Nevertheless and without regaird to these Lawes Captain William Cockburn merchant in Edinburgh, and Jean Clerk his Spouse had withdrawen and withheld Barbara Cockburne Spous to the Complainer from him, his house and Family, and keept her close in their house And when he cam eto See his own wyfe treated him with opprobrious and ignominious epithetes, Discharged him of their house, Did not allow him the Freedome of converseing with her either in publict or privat, that so he might prevaill with her to return without noise or the least reflection upon any former miscarriage Nor hes their wickedness Sisted there, But hes raised ane lybell in her name, befor the Lords of privie Councill, againest the Complainer, Mentioning That he treated that as by the consequences did appear She could not live in Saftie with him, and that he withheld assistance from her when in child birth, and away her Child She knew not whither, without allowing her ane Sight therof, And that her Mourning and walking barefooted was heard by the Servants and Neighbours with other Circumstances keeped in generall, and therfore Concluding ane Separation and aliment, Wheras it was Nottour and knowen that the Complainer intertained the said Barbara his wyffe with full conjugall love and affection in bed, and at Board, and every way suitable to his qualitie and condition in the world, To which the said Captain Cockburne and Jean Clerk were too frequently witnesses, and he cherished her, treated her suitablie to his relation, as the same with him selfe, loved her which he was not able to withhold or diminish, Notwithstanding of the provocation given by her withdrawing, and the lybell raised in her name, which he did not impute to her but to her Father, and mother, for ane seperat end of their own more then for Seperating their Daughter from him, for her Saftie, And befor the said Barbara took the pains of childbirth the Complainer suspecting they were coming on affoorded Her every thing proper, Desyred her Midwyfe and Mother might be called, and which was done even befor he could gett allowance from her for that end, and when they did not come so early as expected, he runn out himselfe in disorder forgetting his Hat, and happilym ett Mistres Hunter in the wynd who came verie Seasonablie to give her assistance befor any necessitie of ane other ignorant woman who was present her applying of herselfe, and to whose skill the Mother refused to Committ her, And the Complainer was so farr from wishing of fyre from Heaven to consume this wyfe, or any other person, that when the said Jean Clerk had been imprecating him, he had Blessed God, that She had not power to call for fyre from Heaven to consume him, And Seeing words go in the air the Utterer therof was best expositor of his own mynd And not the different apprehensions of accidentall hearers who cannot be well inclyned to the intertaineing the affection of a Conjugall Societie, when they report the expressions of anie pairtie with disadvantage, in order to make anie difference betwixt the pairties, And it was knowen that the best of Husbands and wyfes have had expressions unsuitable which they had repented of, And which good Neighbours had concealled and mitigat, wheras heire each mole was made a Mountain, And the Complainer durst Say that he had been so happie and well with his wyfe, and would be so if She were delivered from her parents, that never two lived more intire, And when She brought her child, and when the same was putt to nurseing, She gave the childs cloaths to the Nurse, with her own hands, and the child and nurse with her in the roume kissing her child befor She went away, and the nurse and child had been with her Since, And if the Complainers wyfe mourned or walked bare footed in the roume, the same had been for her own ease, or recreation, and without his giving occasion therfor, From all which it was clear that the lybell was calumnious, and that the said William Cockburne and Jean Clerk the authors of the Complainers wyffes withdrawing, are the authors therof, And therffor ought to deliver back to him his wyfe, and to be otherwayes punished for their withdrawing and withholding of his wyfe, and raiseing the forsaid calumnious, and divisive lybell, of which Crymes they were the authors actors airt or pairt, And Anent the charge given to the saids Defenders to have Compeared personallie befor the saids Lords of her Majesties privie Councill, at ane certain day now bygone, to have answered to the forsaid Complaint, and to have heard and Seen Such order and course taken theranent as appertained With Certification, as in the said lybell and executions at more length was Contained, Which act at the instance of Barbara Cockburne, Spouse to Saintmartines, againest Master James Dallas of Stmertines With lybell at the instance of the said Mr James Dallas of Sainrmartines againest Captain William Cockburn Merchant in Edinburgh and Jean Clerk his Spous being called, And the saids Barbara Cockburne, with the Saids Captain Cockburne and Jean Clark Compearing personally at the Barr, with Sir David Dalrymple Mr Robert Fraser and Mr […] Mckenzie there advocats, and the said Mr James Dallas Compearing also personally at the barr, with Sir David Cunninghame, Mr David Forbes, and Mr George Dalrymple his advocats, and the forsaid act with the lybell being read, and both pairties and their Lawiers heard at the Barr, and removed, The Lords of her Majesties privie Councill, admitted the act and lybell to probation, and the witnesses being called for both pairties did make faith, The Councill Nominated and appoynted the Earle of Loudon and Leven Lord Anstruther, Phesdo, and the Provest of Edinburgh to be a Committie to examine the witnesses upon the matter represented in the said act and lybell, and the haill Circumstances aryseing there from and Recommended to the said Committie to meet to morrow at two of the acloack in the afternoon, And Declaired any three a Quorum and to report, According to which appoyntment the said Committie or their Quorum, having mett and called some of the persuers witneses, and they having Compeared and being Solemnly Sworne purged of partiall Council and malice, and examined on their great oaths, They Deponed as their Depositions extant in proces bears Therafter There being a petition given in and presented to the saids Lords by the said Mr James Dallas of Saintmartines, Shewing That where Barbara Cockburne his wyfe Complained to their Lordships of his behaviour to her, and Craved ane aliment He Still retaining his affection towards her, did not reconveen her, or Complain of her, but of her Father and Mother, as the authors of her withdrawing, and of the lybell, In which Complaint he did excuse himselfe, and that verie modestly, and that the proces Should sist, But her parents Still so prevailled with her that they had Countenanced the adduceing of probation wherin all the injuries proven through by the Single Testimonies of facile Women are verball and no servitia, or Speciall maletreatment, or withholding Suitable provision from her so much as pretended, And Seeing the matter was thus farr carried, and that he had Witnesses Cited for proving his behaviour towards his wyfe, with full kindness and Civility at bed, board, and every every² other way proper for Husbands towards their wifes and entertained and carressed her parents till of late that her Mother abused him, in his own house, calling him Rascall, Villain, Rogue, and offered to break his face, and that in presence of his wyfe, therby to enclyne her, and prepare her to withdraw as She now had done, And therfore Craving their Lordships to allow the Witnesses Cited at his instance, for taking of the lybell at his wyfes instance to be examined, for through he forbore to Cite his wyfe in that proces from ³ good design yet that could not depryve him from adduceing witnesses for proving his good and kyndly behaviour towards ther yea even though he had not Cited them at all, if they be but present, and much more the Witnesses Cited and who had made faith, as also to allow him to interrogate the Witnesses adduced by his wyfe, upon the same and other pertinent Interrogators, And to Ordain them to attend for that effect, and in the mean tyme to delay advyseing as the said petition bears; Which petition being upon the thirtieth day of november last, read in presence of the saids Lords, and they having Considered the same, The Saids Lords allowed the Witnesses Cited for the petitioner in the proces at his instance againest Captain Cockburn and his Spous, and who Compeared at the barr and did make⁴ faith to be examined, upon Such Interrogators as the Committie appoynted therin Should find relevant for proveing his good and affectionat behaviour towards Barbara Cockburn his Spous, and Recommended to the said Committie to meet to morrow morning at ten acloack in the fornoon, and to receive the Witnesses accordinglie and continued the Quorum as formerly And the Said Commity not having mett, there was ane other petition given in to the saids Lords by the said Mr James Dallas of Saintmairtnes, Shewing That where their Lordships haveing appoynted a Committie formerly named by their Lordships in the affair betwixt Saintmairtnes and his wyfe to have mett and examined his witnesses adduced by him upon Such Interrogators of his, that the Lords of the Commitie Should find relevant, and accordingly he being desyrous to have the bussiness brought to ane period, Did each day Since Thursday last to this very tyme attend with his witnesses Advocats and Clerk in the Committie, that their Lordships might be pleased to meet and examine his saids witnesses some living at a Distance, and one being a nurse, so that they were unwilling each day to attend, and the saids Lords being otherwayes necessarly taken up, And therfor Craving not only might please their Lordships to Stop advyseing of the forsaid proces till the said Committie, or any others of their Lordships number, they Should please to add therto, Should meet and examine his Witnesses, But also that their Lordships would Recommend to the said Committie to meet at ane particular tyme, that he and his Saids witnesses might attend, and that their Lordships would be pleased to grant him a Dilligence againest any of his Witnesses that Should withdraw themselves willfully from the said Committie, as the said petition bears. Which petition being upon the fyfth day of December instant, read in presence of the saids Lords, and they having Considered the same, They stopped advyseing of the proces at his Ladies instance againest him, untill the Committie formerly appoynted in the said proces should meet and examine the witnesses adduced by the petitioner, and the saids Lords Recommended to the Committie to meet to morrow at ten of the cloak in the fornoone, and examine the petitioners witnesses and report, And granted to the petitioner letters of dilligence by Caption againest Such of the witnesses as Compeared at the barr, and did make faith, and therafter Should withdraw and absent themselves from the said Committie and assigned the […] day of […] nixt to Come for that effect, According to which appoyntment the said Committie or their Quorum having mett and called for Saintmairtnes his witnesses, and they having Compeared, and being Solemnly Sworne purged of partiall Councill and malice, and examined on their great oath They Deponed as their Depositions extant in proces lykewayes bears, Therafter There was ane Information given in to the saids Lords of privie Councill by the said Barbara Cockburne Spous to Mr James Dallas of Saintmartines, Bearing the said Mr Dallas of Saintmartines having about thirteen moneths agoe made ane offerr of marriage to the said Barbara Cockburn with verie Singular protestations of love and affection to her, She was induced with the consent of her parents and other Relations to imbrace the overture, believeing the man was ingenous, and that the conditions he gave in his Contract of Marriage with her, were resonable enough instances of his Sincerity, The Gentleman Saintmairtnes did indeed very early discover a very froward temper and Disposition, which broke out in a remarkable instance of ingratitude towards his Father, whom he left exposed in his old age to the extreamest hardship and distress without afforrding him any help, even after his Father had bestowed upon him all the fortune he had to promote his settlement with his first wyfe by whom he gott ane considerable estate, and again in ane other instance againest his Sister, whose back he putt a red hott burning bigg key betwixt her Stayes and her Skinn, which had almost killed her, he also used his Spous now deceased most harshly and undutifullie and had alwayes exercised a verie Tyrannical Domination over his Children, banishing them through Infants from his house, and exposed them to wander for the Smallest trifless, which things Should not indeed have been mentioned, were it not to Demonstrat to their Lordships, that the barbarous treatment the Said Barbara Cockburn received afterwards from him, did proceed from ane incorrigible Byass in Saintmairtnes Temper, which by many repeated unworthy actions, was heightned to Such a degree, as excluded all rationall hopes of his ammending, about a fourthnight after the Marriage, and as Soon as Saintmartines had carryed his wyfe to his own house, be begann to treat her, with ane unexpressible barbarity, and finding no occasion from her Submission and dutifull behaviour to him, To use her rudely, he takes up this pretence, that She was presbiterian, and was unwilling to go with him to the English Service, And therfor every week at least twice or thrise, he would thrust her out of his bedd, exposed to the cold of the winter nights, threatning that if she made anie noise, or Cry for her Relieffe, or opened the door, which he had bolted, or putt on her cloaths, he would Cutt her throat, and if any tyme She Spoke but one word, to Soften his Inhumanity, that he made ane matter of disrespect, and disobedience, telling her he would in due tyme punish her for it, the effect of which was to call her alone, when all witnesses were removed, and to threaten the taking away of her lyfe, with his hand on his Sword (which he constantly wore in the house) if She did nto prostrat herselfe befor him and upon her naked kness, asked God, and himselfe pardon, and then would must impiously requyre her upon oath utterly, and forever to renounce all conversation with her parents, and sometymes he would call to her parents, and Condescend upon some passadges of her Behaviour toward him (which indeed all men but himselfe must have judged most innocent and inoffensive) and exclaimed againest her as guiltie of the blackest Crimes, as particularly in one instance which may serve for all, viz: having first threatned her to answer upon oath, he must foolishly and impertinently inquyred of her how many Suiters She had befor him, To which She having innocently answered, and Condescended upon two or three, He then asked her again, whither She had not rather See all these men hanged, then he Should be in a fever, To which She having again Replyed, That rather then See so many innocent persons Sufferr death, She could See herselfe or him in a fever provyding he recovered, Upon which emergent, He called her parents, and exposed the answer, which he had noted down in his pocket book, as full of Disrespect, calling it a Crime worse then Murder, adulterie Witchcraft, or incest, And for which by vertue of his Authority as a Husband, he would punish her and which indeed, he did not faill to doe, Ane instance that must forever Demonstrat in Saintmartines the height of Folly, and a Temper inhuman and Tyrrannicall without example, The pursuer having Sufferred this useage with great quiet and Silence, through it was continued without any Intermission, from the first forthnight after her Marriage, till the tyme She was to be delivered of her Child, His barbarity at length broke out in ane instance, which did plainly discover, he designed really to doe what he had so often threatned, viz To Destroy her lyfe, and that too in a manner, no less extraordinary, then Cruell, by denying to her in Childbirth those helps that are so necessary to all, But especially to Women, in their first labour insomuch that She was truly, and actually brought to a Condition apparently unto human Skill irrecoverable, But it having pleased God to disappoynt the malice of her Husband, and the fears of her Friends, as Soon as She drew to the lowest degree of Strength, She beseeched her Friends to transport her to her Fathers house, and tho She was told, her weakness was Such as could not bear it, without the hazard of her lyfe, yet so strange was the Sense of that extream Slavery, She had induced, and the apprehensions of ane violent death by her Husband, that She constantly persisted in the resolution, And through She fainted by the way was at length transported as She desired, After that her Friends and Relations from a full Conviction of the truth of all that most barbarous useage, Did advyse her intenting befor their Lordships, a proces of aliment upon those most relevant grounds, viz a Cruell and Tyranicall useage, of a Husband to a wyfe, the threatning to take away, and destroy her lyfe, and the actuall denying to her, in the condition of Childbirth, these helps that were necessary for Supporting of it, The lybell has been read in their Lordships presence and admitted to probation, and the witnesses had now Deponed, and there had been also a probation adduced by Saintmartines in a way of Reconvention, for proving that he was a loving and excellent Husband, and that the whole matter might be cleared that was laid befor their Lordships in order to a Sentence, Their Lordships are intreated to Consider primo, That in all that affair Saintmartines had not the confidence to the charge the pursuer with the least Circumstance of undutifull behaviour to him, he did indeed in his Reconvention lay, that her weeping and cryeing, and walking bare footed in the night tyme, in his bed Chamber, was for her Diversion, By which he at once expressed his own folly, and established the truth of her lybell, Secundo att the first Sederunt of the Commitie appoynted for taking of the Depositions, Saintmartines being asked by one of the Honorable Members of the said Committie, if he would not rather condescend voluntarly to give ane aliment, then Sufferr, what might be the issue of that matter after probation He yeilded to ane aliment of Sic hundered merks, and there having been a write drawen up to be Subscrybed by him, at the Second meeting of the Committie, which write did import a confession of the treatment and useage he had given to the persuer, He after reading and hearing of the said write read to him, Did Solemnly and judicially acquiesce in it, in presence of the Committie But being afterwards puffed up with the hopes of his own probation he was to lead, did most disingenously retract, And in presence of the whole Committie, did deney he had ever acquiesced, on which that reflection might be verie justly made, that as nothing but a Conviction of guilt, could ever have made any man acquiesce to ane write, that loaded him So much, So nothing, but the most impudent disingenuity could have made a man deney he had made ane acquiescence, which was truly so publickly and solemnly made, Tertio Whilst one of the witnesses adduced for the pursuer was Deponing Saintmartines was pleased to Interrupt the Lord Examinator, desireing him to Interrogat his wyfe there present if ever he had done or said any thing undutifull to her about the tyme of her being brought to bed, (that being the only tyme he thought any probation could reach him) and the persuer haveing modestly continued Silent, He constrained the Lord Examinator to repeat the Question And as She was about to answer he stopped her still She was putt upon her oath, which being done, She Answered with tears, that the wound which the Child received in its head at the birth, was occasioned by his holding her on a hard Stool per force, And that the fourth day after She was brought to bed, and almost in ane expyreing Condition, he threatned to Cutt her throat, so that here was a probation againest him of his own chooseing, and extored by his own folly Quarto It was indeed impossible that all the instances and Circumstances of a Treatment of that kynd could fall under probation by witnesses, there being seldom or never any other witnesses to actions of that kynd than the authors of them, who industriously affect Secrecy and close doors for such barbarous executions, however it was plain from the Depositions of Anna Steven, Margaret Russell, and Issobell Buy Servants to Saintmairtines, that they frequently heard his Lady weeping and crying with closs doors, and that they frequently heard Saintmartines speak to her in passion and wrath, and the pursuer wishing that She had born her Child, that She might go to Service And that Saintmartines wished he were a prophet to the end that he might destroy his wyfe, her parents, and her whole Relations by fyre from Heaven, And that her crying in the night tyme had made them say among themselves, Sure he was now Murdering her, He endeavoured to practise the said Margaret Russell and counsell her befor Deponing, And that Saintmartines said if he were not afraid of ane aliment to his wyfe he would turn her out of doors, and bidd her go be Damned, And it was evident from the Depositions of Mistress Hunters and Doctor Ecclesses Lady, that althrough She had been in labour from Ten of the Cloack at night, till betwixt eight and nyne the nixt morning, When her Mother and these two Deponents came to her, and found her in a most deplorable Condition, She had no help or assistance, but barbarous useage alreadie mentioned in her own Deposition, and it was most evident from the expression that Stmartines had to Doctor Ecclesses Lady, and which was repeated in her Deposition, he did not design that She Should have had any, And to conclude these reflections on the probation for the persuer, It was impossible to think that a Woman who by the whole tenor of her lyfe had given verie good prooff of her Innocence, Modesty, and good Nature, could expose herselfe to be pointed out as ane unfortunate Creature, and to be the subject of common discourse to the world, by leaving of her Husband (especially when She runn the hazard of her lyfe in doing so) unless She had been therto Constrained by ane useage that was unsupportable, The Defences made for Saintmartines by his Reconvention are primo, That it was of ill consequence to allow of a wyfes leaving her Husband, or to incouradge it, as being contrary to both divine and Humane lawes, as being contrary to both divine and Humane lawes, Secundo He was a most loving and kind Husband, To which it was answered for the persuer, Primo, That the example of a wyfes leaving ther Husband was indeed very rare, (especially a wyfe whose innocence and virtue, neither Saintmartines nor malice itselfe could stain) because it was verie rare that such men, or rather such Monsters as Saintmartines could be found, and the consequence of protecting their innocence when oppressed in the maner abovementioned, was so farr from being ill, that its absolutely necessary, and the same Lawes both humane and Divine, which did indeed verie Strictly tye a wyfe, to abyde with her Husband, did dispence with her continuing under a Slavery and fears unsupportable to humane nature Secundo, as to the defence of his being a loving Husband and the probation adduced for it, there was nothing deserved notice in either, but both were ridiculous, for primo, Any man but Saintmartines in Such a case as that would have defended himselfe by Saying that these hardships he had done to his wyfe were but the effects of passion to which he was perhaps lyable more then ordinary by his naturall Temper, But instead of that to pretend he was a most loving and excellent Husband, was foolish and ridiculous, and as to the probation he had adduced for it, viz: The Depositions of Marjory Fife, and Jannet Weatherspoons, The said Marjory Fyfe Deponed that She was a Servant but three dayes in his house befor his wyfe was brought to bed, And notwithstanding, She Deponed that he was alwayes a loving Husband, And that She thought his making to meikle of his wyfe made her daft, and Jannet Weatherspoons Deponed in the same words by which it was evident, first that they were both instructed, and practised by Saintmairtines, as he had indeavoured to practise Anna Stieven, And nixt that no man on earth could have Instructed two Witnesses to Depone in the Same foolish and ridiculous words, but he who with his own hand could insert in the Reconvention, that his wifes weeping and walking barefooted through his roome manie nights in the cold winter Season, was for her pleasure and divertisement, And furder to make appear the practiseing of the said Marjory Fyffe, He instructed her to Depone She went from mistres Forbes the midwyfe by his order, about Six acloack in the morning (who sent her Sister because She could not Come) And that She heard Saintmartines Daughter say, that the pursuers mother would not allow Mistres Forbes Sister to touch the persuer when She came, All which matters of fact, if the same had been true, could have been more fairly proven by the Deposition of Mistres Forbes and her Sister, witnesses beyond exception then by his own present, But the truth is he knew well that Mistres Forbes Sister could Depone, that instead of Six acloack, that the Servant came not to her house till a little before eight, And that instead of Mistres Cockburns hindering, that he himselfe actually refused her to touch his wyfe, Wherfore It was hoped their Lordships would be pleased to Decern the Defender in ane Aliment for his wyfes Subsistance, with regaird to the great expences was bestowed upon her, by her parents to physicians being in Such a week condition, when She fledd out of her Husbands Family, And in carrying on this proces, as also to return her parapharnalia, As the said Information bears, As also there was ane other Information given in to the saids Lords by the said Mr James Dallas of Saintmartines, Bearing Master James Dallas of Saintmartines married Elizabeth Riddel Daughter to Walker Riddell of Minto, by whom She gott ane considerable fortune, And which to this hour is the farr greatest pairt of his estate, And had by her eleven Chidlren, wherof Four marriagebale, His marriage with her continued twentie years taking on moneth in full peace, and conjugall affection, without the least noise or Complaint of either, After this Ladyes death for pure love without any To her He married Barbara Cockburne Daughter to William Cockburn Merchant, who had a Child to him within three Quarters or therby of the year to the Marriage, and who lived very well together, untill She was much withdrawen by her mother, with whom She was frequently, yea two pairts more then her whole tyme, And often came home ill pleased at the letter. C:A: which Saintmartines still dissembled, and diverted with affectionat expressions and excuses of what appeared wrong in her, by which means he assurred himselfe to make ane affectionat and dutifull wyfe of her, and cherished her accordingly, And entertained her well Suitable to his qualitie and Condition, so that there was neither Severitie used towards her, nor could She complain of want, A forthnight after her child birth her Mother carried her away to her house, And when Saintmartines went to her there to take her back to her own, He is received by her Mother with the ignominious Epithets of Rogue, Rascall, (Marjory Fyfe A: b.) and the like which She was even pleased to repeat befor the Committie of the privie Councill and he was not allowed to converse with her alone but as a Stranger in Company, and so did not prevaill with her to return, but She being So much under the Influence and awe of her mother, She prevailled with her to raise ane lybell befor the privie Councill against Saintmartines, mentioning of the rigid Carriage towards her, And that He withheld assistance from her, when in childbirth, and that he payed for fire from Heaven to destroy her and Relations, and that he putt away her child from her without her knowledge, or telling her whither the Child was, and that She was often heard to mourn, weep; and walked bare footed, And that by these and other Circumstances She was in danger of her lyfe, and could not live in Safetie with him, And therfor Craved Seperation and aliment, For proving of this lybell, Mistres Hunter the Midwyfe Deponed that the Lady had gotten cold befor She came, and Doctor Eccles Lady Deponed that Saintmartines offered her a glass of cold Claret, there being no Sinamon water in the house, which the midwyfe would not allow her to take, And the Ladyes Mother having asked Saintmartines whey they were Not sooner sent for, He said to her, that if the forespring had not brocken, they had been all yet to send for which is all that arises from the probation, with relation to the first Article, Now as to this, let every Man judge where was Saintmartines fault, for the Lybell was that he withheld Assistance from his wyfe when in Childbirth, as to which there was nothing proven, no not the least tendencie therto And on the contart, Marjory Fyfe Servant in the house for the tyme, Depones at the letter, That Saintmartines Suspecting his wyfe to have taken her pains, Implored his wyfe in the name of (Jesus Christ) that She would let him know where the midwife lived, that She might be Sent for And that accordingly the same Deponenet went for the Midwyfe at Six acloack in the morning, and another for the Ladies Mother, and accordingly de facto, She had help the midwyfe and Mother being both present at the Birth, Its true Mistres Hunter Deponed that the Lady had gott cold, but does not say that Saintmartines was the occasion of it cold in Sick persons and especially in Childbirth, aryseing more frequently from want of good Government then want of fire, and especially upon the twentie nynth of August this year, which was the childs birthday, And when the Lady would not Suffer the fire to be putt on early in the morning, when Stmartins desired it, as the said Marjory Fyfe Deponed A:d. and as for other women In the like case, they use tymeously to provyde themselves with what is suitable for them and the child, there being many things at that period unproper for mens knowledge, and all married men are obtested whether they Committ that charge to their wyfe and Women about them, or take it upon themselves And for Saintmartines he did more in that then was usuall by A.e. Imploring his wyfe to know where her Midwife lived by Sending for her and her Mother by Imbraceing the Midwyfe in his Arm’s when She came, And intreating her to haste in to his wyfe, for She was much wanted, as appears by the same Deposition, and by heating he drinks with his own hand, as appears by Moflinties Deposition B.d. And as to that pairt of Doctor Eccles Ladies oath, where She Depones that if the forespring had not broke, they had been all yet to send for but doth not condescend who hindred the sending for them, and Saintmartimes Denyed that expression and did believe the Lady had mistaken his words And the intention of his Discourse to her, for all he could remember he exprest or Discoursed was that it was his wifes own fault, they were not Sooner Sent for, and that appeared from the Testimonie adduced for Saintmartines, that he desired his wyfe two or three hours befor they came A.e. for the Lord Jesus Christs Sake tell where the Midwyfe lived And mistres Eccles Testimony being but Single, no Law, nor reason can allow it to inferr Inhumanity in Saintmartines, especially when the Sense therof cleared by the Deposition of ane other witness, who Deponed positively, that he desired his Lady A.e. for the Lord Jesus sake to tell where her Midwyfe stayed, and which Deponent was Sent for, her Midwyfe Mistres Forbes by Six in the morning, three hours befor Mrs Eccles comeing, and this did further appear from to be all the import of that expression, upon which Mistres Eccles Deponed, from the sweet of the other Testimonies, Declairing that Saintmartines lived kyndly with his Lady, and that day was officiously kynd to her, by warming of drinks, and furnishing her with necessars, And its firmly hoped the Lords will in a case of this importance narrowly notice the probation, and have no respect to Mistres Eccles Testimony, And therfore he takes more pains to insist upon this poynt, because he would not have the least Suspition to remain with their Lordships of any Such he could be guilty of, in thought far less in deed, in withholding help from his Lady any maner of way whose love to, and care of his wyfe, was evident by A.f. Marjory Fyfe, B:g. Agnes Mcflintie, C.h, Janet Wootherspoons proven, And as to his offerring a glass of cold claret, that can suffer no bad Sense, he knowing no better, And A.J. and C.k. proves his having allowed all provisions proper it was his wyfes fault in not getting them, and that he allowed all provision was clear by the said Marjory Fyffes deposition and Janet Weotherspoons, The Second poynt in the lybell was, that Saintmartines prayed for fire from Heaven to destroy his Lady and her Relations, and as to which Margaret Russell alone Deponed, so that She was Single, and not to be believed, and only of eighteen years of age, Secundo she exculpats Saintmartines for She Depones that ex incontinenti, he saw her mistake, and the witness might mistake his word, And therfore he explained what was his thought that he thanked God, that his wifes mother had not power to call for fire out of Heaven to destroy him, which was the true expression mistaken by the woman, The nixt poynt was, that without her knowledge he putt away her Child, and She knew not whither as to which, there was not the least probation, and his wifes knowledge of the Childs going away, and whether, was proven by A.l. Marjory Fyfe, B: M. Agnes McFlintie, E: N. Janet Ross who all concurr in this, that his wyfe gave the child, and childs claoths to the Nurse, and that even since his wife withdrew, the Child and Nurse has been with her all night, The fourth poynt was that She was heard weeping and walk barefooted, as to that, her being heard to weep appeared proven, but of her walking barefooted not one word proven then as to the murmuring or weeping what can that import, Seeing none of them Depones that Saintmartines was the occasion therof, and if at ane accidentall tyme from her youth and pettitness She had mistaken his expression, and had weeped or mourned, what could that inferr, but at the most that She was somewhat grieved, or rather pettit, and it appears to be the last, from the Depositions of Marjory Fyfe, and Janet Wetherspoons who deponed that Saintmartines by making too much of his Lady A. O. and C. P. had made her daft, And Anna Steven, who Deponed fully in favours of his wyfe was that just to Saintmartines that she sayes in her Deposition that She never saw any ill usage D.q. from Saintmartines towards his Lady, And through She Saw her weep She knew not the reason therof, D: r, Through there be nothing more in the lybell, Anna Steven and Isobell Bowie, Depone that the Lady Saintmartines expressed herselfe, that if she were sufferred to bear her Child, She would go to Service, and the same woman Depone, that they Saw no ill useage by Saintmartines towards his Lady D: q. so this being his wyfes own expression can inferr nothing againest him, he having given no provocation therto, and it was not enough that said Bowie Depones, that Saintmartines said at the tyme to the Lady go and be Damned, the doors and window’s are opened, Primo, Because She was a Single Witness, and Secondly if the Ladie expressed herselfe to her Husband, that She would go to Service and leave him, it would have provoked any calm man to have made that return, but in charity both expressions Should be looked upon as repented of as soon as made, and Saintmartines as he denyes the expression on his pairt, so he gives a demonstration of the contrar, in desyreing her home to him who did so much love her, as was proven by the Said Testimonies, and in manie good Families unsuitable and unproper expressions have fallen out betwixt man and wyfe, which were never brought to publick, but were thought proper to be buried in perpetuall oblivion, From all which, and the conjugall affection betwixt man and wyfe, and Saintmartines tender care of his wyfe, and good provision for her, And that nothing of atrositie, Servitia, or withholding maintenance, or any thing harsh can be pretended or proven, and that the lybell was raised and pusued by her parents without imputing to herselfe altogether, ought to be throwen out, and his wife to return to her Husband, and her parents to be punished as the authors of it, As the said Information lykewayes bears, The Lords of her Majesties privie Councill having this day proceeded to advyse the mutuall processes betwixt Mr James Dallas of Saintmartins, and Barbara Cockburn his Spous, and the act by way of Lybell, at the instance of the said Barbara Cockburn againest the said Mr James Dallas, with the lybell at the instance of the said Mr James Dallas againest Captain William Cockburn Merchant in Edinburgh, and […] Clark his Spous, with answers to the Ladies Lybell, Depositions of the Witnesses adduced by both pairties, And Informations hinc inde being all read in presence of the Saids Lords, And they having Considered the samen The Saids Lords of Her Majesties privie Councill have Granted and heirby Grants to the said Barbara Cockburne the soume of Six Hundered merks Scots money yearly to be payed by the said Mr James Dallas, to the said Barbara Cockburn for ane aliment to herselfe and Child to be payed att two termes in the year Whitsonday and Mertimess be equall portions, Beginning the first termes payment therof immediatly for the terme of Mertimess last by past, and suae furth yearly and termly therafter And have appoynted and Ordained, and heirby Appoynts and Ordain’s the said Mr James Dallas of Saintmartines to make payment therof accordingly, And to restore to the Said Margaret Cockburne her parapharnalia, Conforme to ane Inventar therof to be signed under her hand, And Ordaines letters of horning under the Signet of Councill upon six dayes to be direct heirupon as effeirs.