Date Of Execution: 13 Nov 1765
Execution Place: unknown
Convicted of Murder. Ogilvie hanged 13th November, 1765, but Nairn escaped from custody.
As the case of these malefactors made a great noise in the world at and after the commission of the crime, we shall be the more careful to give all the particulars of it.
At East Miln, in the county of Forfar, in Scotland, lived Mr. Thomas Ogilvie, a man of moderate fortune, whose life was of the domestic kind, with his mother, till he was about forty years of age, when he married Catharine, the beautiful daughter of Sir Thomas Nairn, of Dunsinan, on the 31st of January, 1765, the young lady being then about twenty-one years of age.
(It may be proper to observe that in Scotland women are sometimes called by their maiden names after marriage. Hence this unhappy woman is called Nairn instead of Ogilvie.)
Patrick Ogilvie, the brother of Thomas, having served as a lieutenant in the East Indies, returned to Scotland soon after the celebration of the nuptials, and went to congratulate his brother on the occasion.
From this visit arose all that scene of distress which gives rise to the following narrative; for Patrick having beheld his sister with eyes of unwarrantable love, they were seen within three weeks after the wedding, by the servants, walking in the fields with too great familiarity, and kissing each other with all the fondness of enraptured lovers.
Soon afterwards Anne Clarke, a kinswoman of Mr. Ogilvie, paying a visit in the family, remarked a great intimacy between the lovers, who frequently went to bed together without the precaution of shutting the chamber-door. Mrs. Clarke remarked on the scandalous impropriety of the lady's conduct; but, so far from blushing at it, she boasted of her love for her brother-in-law, with whom she said she would abscond, or otherwise give a dose to her husband, whom she detested.
Mr. Ogilvie the elder was of so pacific a disposition, that, though the criminal conversation became every day more conspicuous, he contented himself with representing to his brother how much he dishonoured the family by so sinful a practice; but he did not even forbid him the house.
At length he paid the lieutenant a sum of money bequeathed him by his father; and then Patrick departed, to take the diversions of the country: but he still corresponded with his sister—in-law; and they left letters for each other under a stone, and even occasionally met together in the fields.
When this was known, the injured husband, so far from resenting the conduct of his brother, wrote to him, expressing his inclination to bequeath him both his wife and the principal part of his estate, saying he would consult his own peace of mind in retirement: he even entreated him to return, adding 'My wife cannot be happy without you.'
Mrs. Nairn had, in the mean time, written to Patrick Ogilvie to send her some poison; and accordingly he sent her some white arsenic, under the name of salts,for her use.
Mrs. Clarke, above mentioned, no sooner heard that the packet was arrived, than she cautioned Mr. Ogilvie not to drink any thing given him by his wife, unless she first partook of it: but this precaution proved fruitless; for the unhappy man being ill one morning, his wife conveyed a quantity of the arsenic into a basin of tea which the maid-servant was carrying to him; and then the base woman waited at his bed-side while he drank it.
The most excruciating pains in his bowels, accompanied with a violent retching, was the consequence of this draught, and at nine at night Mr. Ogilvie expired in the greatest agony, after a marriage of little more than four months, during which he scarcely enjoyed one happy day.
His brother now gave directions respecting the funeral; but, in the mean time, Mrs. Clarke wrote to a younger brother of thedeceased, who was then a student at Edinburgh, intimating her suspicions that Mr. Ogilvie had been poisoned. Hereupon the young gentleman set out for East Miln, being determined to inquire into the real state of the case. He took with him the under-sheriff of the county, and two surgeons. The under-sheriff recommended opening the body of the deceased; but, as he had been dead six days, and as it was now the middle of June, and the weather intensely hot, this was opposed by the surgeons, lest some noisome effluvia should arise from the body.
The presumed murderers were now taken into custody, and committed to the prison of Forfar, whence they were removed to Edinburgh, to take their trials in the High Court of Justiciary. Mrs. Clarke had concealed herself from the time that the murder was committed; but on the 3d of August, 1765, she went to Edinburgh, and surrendered her self to the lord-advocate, as the trials of the offenders were to commence on the Monday following. Here upon his lordship committed her, and two women-servants of the deceased, to the Castle, that there might be no obstruction to the course of public justice.
The prisoners being brought into court on the appointed day, a copy of their indictments, with a list of the jury and witnesses, was respectively delivered to them; and then the Court was adjourned to the 12th of the same month, at eight in the morning.
In the interim the counsel for the prisoners petitioned the Court that Anne Clarke might be removed from her usual place of confinement with the servant-maids, lest she should prevail on them to perjure themselves, to the prejudice of the prisoners.
The Court granted the prayer of this petition; and Mrs. Clarke was removed into another room: but Lord George Beauclerk, the then commander-in-chief of the forces in North Britain, caused her to be conveyed to her former place of confinement, on an information that the room in which the governor of the castle had placed her was not secure enough to prevent her escape.
Complaint of this procedure being made by the counsel for the prisoner, Lord George insisted that it was his duty to prevent the escape of the evidence, notwithstanding any order of Court.
The trial was at length proceeded upon on Monday, the 12th of August, and continued without inter mission till three o'clock on the Wednesday morning, when the jury retired, and at four in the afternoon of that day gave their verdict that the prisoners were both guilty.
The lord-advocate now demanded that judgment should be passed on them; but this was opposed by their counsel, who urged that there were several informalities in the trial, which would destroy the force of the verdict, as they were incompatible with the principles of the laws of Scotland.
On this a debate ensued, which continued near five hours, when the Lord Justice Clerk declared that, unless a special plea was stated in arrest of judgment, he would pronounce sentence against the prisoners.
Hereupon it was agreed that, on the following day, at eleven o'clock, the arguments in writing should be delivered into court; and, when that was done, a farther argument of six hours ensued thereon.
The counsel for the prisoners, having at length no other plea left to urge, hinted that Mrs. Nairn was with child, but did not pretend to say how far she might be advanced in her pregnancy.
On this sentence of death was passed against Patrick Ogilvie, to be executed on the 25th of September, in the Grass Market, Edinburgh; and Mrs. Nairn being remanded to prison, orders were given for a jury of matrons to be summoned on the following day, to inquire into her real situation.
The Court being once more assembled, the matrons were sworn, and retired; and, on their return, declared that they could not determine whether she was pregnant or not. On this the judgment against her was suspended till November; and the matrons were directed to visit her frequently in the interval.
The utmost interest of the relations of the convicts was now exerted to prevent the disgrace of a public execution, by procuring a reprieve for Mr. Ogilvie, who constantly asserted his innocence respecting the death of his brother.
Such diligence was used in this matter, that Counsellor M'Carty was heard in h is behalf before the king in council, where he contended for a right of appealing from the decision of the Court of Justiciary to the House of Lords.
The lord-advocate of Scotland, in reply hereto, insisted that the determination of the Court of Justiciary must be final, as it was a criminal court, in which the prisoner had been tried and convicted by a jury of his countrymen. He referred to the 19th article of the Act of Union, by which the Court of Justiciary was established.
The matter having been maturely considered, Mr. Ogilvie was left to suffer the sentence of the law.
The day before his death he was attended by two clergymen, and several of his friends, to whom he made a solemn avowal of his innocence of the facts alleged against him, and thought that his brother, who had undertaken the prosecution, had behaved in a manner undeservedly rigorous; yet he declared that he should die in perfect charity with all mankind.
At the place of execution he made an address to the populace, still asserting his innocence; and, as soon as he had concluded his devotions, he was turned off, amidst an immense concourse of people. No sooner was he turned off, than, the rope slipping, he dropped to the ground; but, being immediately tied up again, he said aloud, ' I adhere to my former confession, and die an innocent man.' This being said, he was executed, and his body delivered to a surgeon for dissection.
This unhappy man suffered in the Grass Market at Edinburgh on the 13th of November, 1765.
Mrs. Nairn having remained in custody till November, it then appeared that she was pregnant, on which she was respited till the time when she should be brought to bed, which was in the month of January, 1766.
After she had been delivered a month an order was issued for her execution; but, a short time before this event would have taken place, she escaped from the prison at nine at night, in the uniform of an officer; and an old footman, who had lived in her father's family, being waiting for her with a post-chaise, they set oft together.
Mrs. Nairn was not missed till near noon on the following day; and persons were sent express to reapprehend her; but she had arrived in London before them.
She now engaged the master of a Dutch fishing-smack to convey her to Holland for fifty guineas; but the wind blew with such violence that he was obliged to land her on the Kentish shore, whence she travelled to Dover, attended by her faithful servant. They immediately got on board the packet-boat bound for Calais; and no authentic accounts respecting her have transpired since that period.
Such were the different fates of two people, who, as far as we can judge of the affair, appear to have been involved in the same crime. The one dies, avowing his perfect innocence; the other escapes the immediate stroke of justice, which was suspended over her by the most slender thread.
Mysterious are the ways of Providence, and, in the language of Scripture, 'past finding out;' but it is for mortals humbly to submit to all its dispensations.
One pertinent remark will naturally arise on this occasion, viz, the absurdity of disproportionate marriages. Mr. Thomas Ogilvie was nearly twice the age of his wife, and had therefore much the less chance of happiness with her.
The bond of marriage will be frequently found to be a rope of sand where fortune is made the sole consideration on either side, and where unity of mind, and a tolerable equality in aged are not consulted.
We make this remark for the sake of those parents who may be tempted to compel their children to unequal marriages on the idea that riches alone can bestow that happiness which must generally, if not always, depend on consent of mind.