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  "Gentlemen of the jury, it was with some impatience that I heard my learned brother who opened the case for the crown give an unfavourable turn to the prisoner's conduct on this occasion. He said the prisoner was afraid to encounter his antagonist in fair fight, or to submit to the laws of the ring; and that therefore, like a cowardly Italian, he had recourse to his fatal stiletto, to murder the man whom he dared not meet in manly encounter. I observed the prisoner shrink from this part of the accusation with the abhorrence natural to a brave man; and as I would wish to make my words impressive when I point his real crime, I must secure his opinion of my impartiality by rebutting everything that seems to me a false accusation. There can be no doubt that the prisoner is a man of resolution—too much resolution. I wish to Heaven that he had less—or, rather that he had had a better education to regulate it.

  "Gentlemen, as to the laws my brother talks of, they may be known in the bull-ring, or the bear-garden, or the cock-pit, but they are not known here. Or, if they should be so far admitted as furnishing a species of proof that no malice was intended in this sort of combat, from which fatal accidents do sometimes arise, it can only be so admitted when both parties are IN PARI CASU, equally acquainted with, and equally willing to refer themselves to, that species of arbitrament. But will it be contended that a man of superior rank and education is to be subjected, or is obliged to subject himself, to this coarse and brutal strife, perhaps in opposition to a younger, stronger, or more skilful opponent? Certainly even the pugilistic code, if founded upon the fair play of Merry Old England, as my brother alleges it to be, can contain nothing so preposterous. And, gentlemen of the jury, if the laws would support an English gentleman, wearing, we will suppose, his sword, in defending himself by force against a violent personal aggression of the nature offered to this prisoner, they will not less protect a foreigner and a stranger, involved in the same unpleasing circumstances. If, therefore, gentlemen of the jury, when thus pressed by a VIS MAJOR, the object of obloquy to a whole company, and of direct violence from one at least, and, as he might reasonably apprehend, from more, the panel had produced the weapon which his countrymen, as we are informed, generally carry about their persons, and the same unhappy circumstance had ensued which you have heard detailed in evidence, I could not in my conscience have asked from you a verdict of murder. The prisoner's personal defence might indeed, even in that case, have gone more or less beyond the MODERAMEN INCULPATAE TUTELAE, spoken of by lawyers; but the punishment incurred would have been that of manslaughter, not of murder. I beg leave to add that I should have thought this milder species of charge was demanded in the case supposed, notwithstanding the statute of James I. cap. 8, which takes the case of slaughter by stabbing with a short weapon, even without MALICE PREPENSE, out of the benefit of clergy. For this statute of stabbing, as it is termed, arose out of a temporary cause; and as the real guilt is the same, whether the slaughter be committed by the dagger, or by sword or pistol, the benignity of the modern law places them all on the same, or nearly the same, footing.

  "But, gentlemen of the jury, the pinch of the case lies in the interval of two hours interposed betwixt the reception of the injury and the fatal retaliation. In the heat of affray and CHAUDE MELEE, law, compassionating the infirmities of humanity, makes allowance for the passions which rule such a stormy moment—for the sense of present pain, for the apprehension of further injury, for the difficulty of ascertaining with due accuracy the precise degree of violence which is necessary to protect the person of the individual, without annoying or injuring the assailant more than is absolutely necessary. But the time necessary to walk twelve miles, however speedily performed, was an interval sufficient for the prisoner to have recollected himself; and the violence with which he carried his purpose into effect, with so many circumstances of deliberate determination, could neither be induced by the passion of anger, nor that of fear. It was the purpose and the act of predetermined revenge, for which law neither can, will, nor ought to have sympathy or allowance.

  "It is true, we may repeat to ourselves, in alleviation of this poor man's unhappy action, that his case is a very peculiar one. The country which he inhabits was, in the days of many now alive, inaccessible to the laws, not only of England, which have not even yet penetrated thither, but to those to which our neighbours of Scotland are subjected, and which must be supposed to be, and no doubt actually are, founded upon the general principles of justice and equity which pervade every civilized country. Amongst their mountains, as among the North American Indians, the various tribes were wont to make war upon each other, so that each man was obliged to go armed for his own protection. These men, from the ideas which they entertained of their own descent and of their own consequence, regarded themselves as so many cavaliers or men-at-arms, rather than as the peasantry of a peaceful country. Those laws of the ring, as my brother terms them, were unknown to the race of warlike mountaineers; that decision of quarrels by no other weapons than those which nature has given every man must to them have seemed as vulgar and as preposterous as to the NOBLESSE of France. Revenge, on the other hand, must have been as familiar to their habits of society as to those of the Cherokees or Mohawks. It is indeed, as described by Bacon, at bottom a kind of wild untutored justice; for the fear of retaliation must withhold the hands of the oppressor where there is no regular law to check daring violence. But though all this may be granted, and though we may allow that, such having been the case of the Highlands in the days of the prisoner's fathers, many of the opinions and sentiments must still continue to influence the present generation, it cannot, and ought not, even in this most painful case, to alter the administration of the law, either in your hands, gentlemen of the jury, or in mine. The first object of civilisation is to place the general protection of the law, equally administered, in the room of that wild justice which every man cut and carved for himself, according to the length of his sword and the strength of his arm. The law says to the subjects, with a voice only inferior to that of the Deity, 'Vengeance is mine.' The instant that there is time for passion to cool, and reason to interpose, an injured party must become aware that the law assumes the exclusive cognisance of the right and wrong betwixt the parties, and opposes her inviolable buckler to every attempt of the private party to right himself. I repeat that this unhappy man ought personally to be the object rather of our pity than our abhorrence, for he failed in his ignorance, and from mistaken notions of honour. But his crime is not the less that of murder, gentlemen, and, in your high and important office, it is your duty so to find. Englishmen have their angry passions as well as Scots; and should this man's action remain unpunished, you may unsheath, under various pretences, a thousand daggers betwixt the Land's-End and the Orkneys."

  The venerable Judge thus ended what, to judge by his apparent emotion, and by the tears which filled his eyes, was really a painful task. The jury, according to his instructions, brought in a verdict of Guilty; and Robin Oig M'Combich, ALIAS McGregor, was sentenced to death, and left for execution, which took place accordingly. He met his fate with great firmness, and acknowledged the justice of his sentence. But he repelled indignantly the observations of those who accused him of attacking an unarmed man. "I give a life for the life I took," he said, "and what can I do more?" [See Note 11.—Robert Donn's Poems.]

  NOTES.

  NOTES TO CHRONICLES OF THE CANONGATE.

  Note 1.—HOLYROOD.

  The reader may be gratified with Hector Boece's narrative of the original foundation of the famous abbey of Holyrood, or the Holy Cross, as given in Bellenden's translation:—

  "Eftir death of Alexander the first, his brothir David come out of Ingland, and wes crownit at Scone, the yeir of God MCXXIV yeiris, and did gret justice, eftir his coronation, in all partis of his realme. He had na weris during the time of King Hary; and wes so pietuous, that he sat daylie in judgement, to caus his pure commonis to have justice; and causit the actionis of his noblis to be decidit be his othir jugis. He gart ilk juge redres
the skaithis that come to the party be his wrang sentence; throw quhilk, he decorit his realm with mony nobil actis, and ejeckit the vennomus custome of riotus cheir, quhilk wes inducit afore be Inglismen, quhen thay com with Quene Margaret; for the samin wes noisum to al gud maneris, makand his pepil tender and effeminat.

  "In the fourt yeir of his regne, this nobill prince come to visie the madin Castell of Edinburgh. At this time, all the boundis of Scotland were ful of woddis, lesouris, and medois; for the countre wes more gevin to store of bestiall, than ony productioun of cornis; and about this castell was ane gret forest, full of haris, hindis, toddis, and siclike maner of beistis. Now was the Rude Day cumin, called the Exaltation of the Croce; and, becaus the samin wes ane hie solempne day, the king past to his contemplation. Eftir the messis wer done with maist solempnitie and reverence, comperit afore him mony young and insolent baronis of Scotland, richt desirus to haif sum plesur and solace, be chace of hundis in the said forest. At this time wes with the king ane man of singulare and devoit life, namit Alkwine, channon eftir the ordour of Sanct Augustine, quhilk well lang time confessoure, afore, to King David in Ingland, the time that he wes Erle of Huntingtoun and Northumbirland. This religious man dissuadit the king, be mony reasonis, to pas to this huntis; and allegit the day wes so solempne, be reverence of the haly croce, that he suld gif him erar, for that day, to contemplation, than ony othir exersition. Nochtheles, his dissuasion is litill avalit; for the king wes finallie so provokit, be inoportune solicitatioun of his baronis, that he past, nochtwithstanding the solempnite of this day, to his hountis. At last, quhen he wes cumin throw the vail that lyis to the gret eist fra the said castell, quhare now lyis the Canongait, the staik past throw the wod with sic noyis and din of rachis and bugillis, that all the bestis were rasit fra thair dennis. Now wes the king cumin to the fute of the crag, and all his nobilis severit, heir and thair, fra him, at thair game and solace; quhen suddenlie apperit to his sicht the fairist hart that evir wes sene afore with levand creature. The noyis and din of this hart rinnand, as apperit, with awful and braid tindis, maid the kingis hors so effrayit, that na renzeis micht hald him, bot ran, perforce, ouir mire and mossis, away with the king. Nochtheles, the hart followit so fast, that he dang baith the king and his hors to the ground. Than the king kest abak his handis betwix the tindis of this hart, to haif savit him fra the strak thairof; and the haly croce slaid, incontinent, in his handis. The hart fled away with gret violence, and evanist in the same place quhare now springis the Rude Well. The pepil richt affrayitly, returnit to him out of all partis of the wod, to comfort him efter his trubill; and fell on kneis, devotly adoring the haly croce; for it was not cumin but sum hevinly providence, as weill apperis; for thair is na man can schaw of quhat mater it is of, metal or tre. Sone eftir, the king returnit to his castell; and in the nicht following, he was admonist, be ane vision in his sleip, to big ane abbay of channonis regular in the same place quhare he gat the croce. Als sone as he was awalkinnit, he schew his visione to Alkwine, his confessoure; and he na thing suspended his gud mind, bot erar inflammit him with maist fervent devotion thairto. The king, incontinent, send his traist servandis in France and Flanderis, and brocht richt crafty masonis to big this abbay; syne dedicat it in the honour of this haly croce. The croce remanit continewally in the said abbay, to the time of King David Bruce; quhilk was unhappily tane with it at Durame, quhare it is haldin yit in gret veneration."—BOECE, BOOK 12, CH. 16.

  It is by no means clear what Scottish prince first built a palace, properly so called, in the precincts of this renowned seat of sanctity. The abbey, endowed by successive sovereigns and many powerful nobles with munificent gifts of lands and tithes, came, in process of time, to be one of the most important of the ecclesiastical corporations of Scotland; and as early as the days of Robert Bruce, parliaments were held occasionally within its buildings. We have evidence that James IV. had a royal lodging adjoining to the cloister; but it is generally agreed that the first considerable edifice for the accommodation of the royal family erected here was that of James V., anno 1525, great part of which still remains, and forms the north-western side of the existing palace. The more modern buildings which complete the quadrangle were erected by King Charles II. The name of the old conventual church was used as the parish church of the Canongate from the period of the Reformation, until James II. claimed it for his chapel royal, and had it fitted up accordingly in a style of splendour which grievously outraged the feelings of his Presbyterian subjects. The roof of this fragment of a once magnificent church fell in in the year 1768, and it has remained ever since in a state of desolation. For fuller particulars, see the PROVINCIAL ANTIQUITIES OF SCOTLAND, or the HISTORY OF HOLYROOD, BY MR. CHARLES MACKIE.

  The greater part of this ancient palace is now again occupied by his Majesty Charles the Tenth of France, and the rest of that illustrious family, which, in former ages so closely connected by marriage and alliance with the house of Stewart, seems to have been destined to run a similar career of misfortune. REQUIESCANT IN PACE!

  Note 2.—STEELE, A COVENANTER, SHOT BY CAPTAIN CREICHTON.

  The following extract from Swift's Life of Creichton gives the particulars of the bloody scene alluded to in the text:—

  "Having drank hard one night, I (Creichton) dreamed that I had found Captain David Steele, a notorious rebel, in one of the five farmers' houses on a mountain in the shire of Clydesdale, and parish of Lismahago, within eight miles of Hamilton, a place that I was well acquainted with. This man was head of the rebels since the affair of Airs-Moss, having succeeded to Hackston, who had been there taken, and afterward hanged, as the reader has already heard; for, as to Robert Hamilton, who was then Commander-in-chief at Bothwell Bridge, he appeared no more among them, but fled, as it was believed, to Holland.

  "Steele, and his father before him, held a farm in the estate of Hamilton, within two or three miles of that town. When he betook himself to arms, the farm lay waste, and the Duke could find no other person who would venture to take it; whereupon his Grace sent several messages to Steele, to know the reason why he kept the farm waste. The Duke received no other answer than that he would keep it waste, in spite of him and the king too; whereupon his Grace, at whose table I had always the honour to be a welcome guest, desired I would use my endeavours to destroy that rogue, and I would oblige him for ever."

  "I return to my story. When I awaked out of my dream, as I had done before in the affair of Wilson (and I desire the same apology I made in the introduction to these Memoirs may serve for both), I presently rose, and ordered thirty-six dragoons to be at the place appointed by break of day. When we arrived thither, I sent a party to each of the five farmers' houses. This villain Steele had murdered above forty of the king's subjects in cold blood, and, as I was informed, had often laid snares to entrap me; but it happened that, although he usually kept a gang to attend him, yet at this time he had none, when he stood in the greatest need. One of the party found him in one of the farmers' houses, just as I happened to dream. The dragoons first searched all the rooms below without success, till two of them hearing somebody stirring over their heads, went up a pair of turnpike stairs. Steele had put on his clothes while the search was making below; the chamber where he lay was called the Chamber of Deese, [Or chamber of state; so called from the DAIS, or canopy and elevation of floor, which distinguished the part of old halls which was occupied by those of high rank. Hence the phrase was obliquely used to signify state in general.] which is the name given to a room where the laird lies when he comes to a tenant's house. Steele suddenly opening the door, fired a blunderbuss down at the two dragoons, as they were coming up the stairs; but the bullets grazing against the side of the turnpike, only wounded, and did not kill them. Then Steele violently threw himself down the stairs among them, and made towards the door to save his life, but lost it upon the spot; for the dragoons who guarded the house dispatched him with their broadswords. I was not with the party when he was killed, being at that time employed in sear
ching one of the other houses, but I soon found what had happened, by hearing the noise of the shot made with the blunderbuss; from whence I returned straight to Lanark, and immediately sent one of the dragoons express to General Drummond at Edinburgh."—SWIFT'S WORKS, VOL.XII. (MEMOIRS OF CAPTAIN JOHN CREICHTON), pages 57-59, Edit. Edinb. 1824.

  Woodrow gives a different account of this exploit:—"In December this year, (1686), David Steil, in the parish of Lismahagow, was surprised in the fields by Lieutenant Creichton, and after his surrender of himself on quarters, he was in a very little time most barbarously shot, and lies buried in the churchyard there."

  Note 3.—IRON RASP.

  The ingenious Mr. R. CHAMBERS'S Traditions of Edinburgh give the following account of the forgotten rasp or risp:—

  "This house had a PIN or RISP at the door, instead of the more modern convenience—a knocker. The pin, rendered interesting by the figure which it makes in Scottish song, was formed of a small rod of iron, twisted or notched, which was placed perpendicularly, starting out a little from the door, and bore a small ring of the same metal, which an applicant for admittance drew rapidly up and down the NICKS, so as to produce a grating sound. Sometimes the rod was simply stretched across the VIZZYING hole, a convenient aperture through which the porter could take cognisance of the person applying; in which case it acted also as a stanchion. These were almost all disused about sixty years ago, when knockers were generally substituted as more genteel. But knockers at that time did not long remain in repute, though they have never been altogether superseded, even by bells, in the Old Town. The comparative merit of knockers and pins was for a long time a subject of doubt, and many knockers got their heads twisted off in the course of the dispute."—CHAMBERS'S TRADITIONS OF EDINBURGH.