The Library’s holdings of 18th and early 19th century British divorce proceedings and other “matrimonial actions” are a rich source of primary material for social historians as well as legal scholars. On occasion, these documents shed an unanticipated light on law, society, and the private lives of the parties involved.
One such case was recently discovered in a previously uncataloged volume of rare 18th century Scottish legal documents comprised of cases heard before the Commissary Court in Edinburgh, which ruled exclusively on matters of marriage and divorce.
In 1770, Mr. Houston Stewart-Nicolson, Esq. sought a divorce from his wife, Margaret Stewart-Nicolson (née Porterfield), on the grounds of her alleged adultery with William Graham, a servant in the household of Sir William Maxwell, her husband’s brother-in-law. In Objections for Mrs Stewart-Nicolson, to witnesses proposed to be adduced against her by Mr Stewart-Nicolson, dated April 6, 1770, lawyer John Watson objects to several witnesses for the “pursuer” including an unexpected one:
Under Scots law, individuals whose assets were less than the usual fine for absence from court (i.e. King’s unlaw) were generally not admissible as witnesses. (This last argument was later dropped.) In a response dated May 2, 1770 (Answers for Houston Stewart-Nicolson, to the objections for Mrs Stewart-Nicolson) lawyer John Maclaurin argues that Latchemo can indeed be a witness. He notes that in An institute of the laws of Scotland in civil rights (Edinburgh, 1751-1753) v.2, p. 647, the highly regarded judge and legal writer, the late Lord Bankton (1685-1760) “lays it down as clear law that all persons capable of observation may be admitted as witnesses in occult [i.e. secret or hidden] crimes ….”
Maclaurin adds that Latchemo said he was a Christian and had asked to be baptized on several occasions. He went on to declare that:
Slavery had been the subject of several court cases in the mid 1700s, and was finally resolved in 1778, in Knight v. Wedderburn, when Scotland’s Court of Session ruled that slavery “could not be supported in [Scotland] to any extent.” Cf. Decisions of the Court of Session. From January 1778 (Edinburgh, 1781).
Ultimately, whatever testimony Latchemo might have given was made moot when, over the strenuous objections of the “defender” and her lawyer, William Graham himself was admitted as a witness. Thanks in part to his frank and damaging testimony, Mr. Houston Stewart-Nicolson obtained his divorce.