Stallard v HM Advocate was one of the last criminal appeals over which Lord Emslie presided as Lord Justice-General of Scotland. The case raised the controversial, if apparently simple, issue of whether or not a husband could be guilty of the rape of his wife, other than art and part, while they were still cohabiting. HM Advocate v D and HM Advocate v Paxton had already determined that, where spouses were living apart, a husband could be guilty of raping his wife. The authority for the traditional view on marital rape is a passage dealing with art and part guilt in the chapter on rape in Hume's Commentaries: “This is true without exception even of the husband of the woman; who, though he cannot himself commit a rape on his own wife, who has surrendered her person to him in that sort, may however be accessory to that crime … committed on her by another.” The court suggested in Stallard that Hume had adopted this view from Sir Matthew Hale's Historia placitorum coronae, where Hale had written: “But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.” The court did not consider it necessary to decide in Stallard whether or not Hume had correctly stated the law of his own day, accepting that, even if Hume's statement ever had been good law in Scotland, it no longer was. The English Court of Appeal, Criminal Division, has recently followed this lead, and rejected the marital rape exemption found in Hale.

Hume acknowledged that he drew on English law in writing his Commentaries: