"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.