can.”
The pause of astonishment still continuing, Robin Oig asked for a peace-officer, and a constable having stepped out, he surrendered himself to his custody.
“A bloody night’s work you have made of it,” said the constable.
“Your own fault,” said the Highlander. “Had you kept his hands off me twa hours since, he would have been now as well and merry as he was twa minutes since.”
“It must be sorely answered,” said the peace-officer.
“Never you mind that—death pays all debts; it will pay that too.”
The horror of the bystanders began now to give way to indignation, and the sight of a favourite companion murdered in the midst of them, the provocation being, in their opinion, so utterly inadequate to the excess of vengeance, might have induced them to kill the perpetrator of the deed even upon the very spot. The constable, however, did his duty on this occasion, and with the assistance of some of the more reasonable persons present, procured horses to guard the prisoner to Carlisle, to abide his doom at the next assizes. While the escort was preparing, the prisoner neither expressed the least interest, nor attempted the slightest reply. Only, before he was carried from the fatal apartment, he desired to look at the dead body, which, raised from the floor, had been deposited upon the large table (at the head of which Harry Wakefield had presided but a few minutes before, full of life, vigour, and animation), until the surgeons should examine the mortal wound. The face of the corpse was decently covered with a napkin. To the surprise and horror of the bystanders, which displayed itself in a general AH! drawn through clenched teeth and half-shut lips, Robin Oig removed the cloth, and gazed with a mournful but steady eye on the lifeless visage, which had been so lately animated that the smile of good-humoured confidence in his own strength, of conciliation at once and contempt towards his enemy, still curled his lip. While those present expected that the wound, which had so lately flooded the apartment with gore, would send forth fresh streams at the touch of the homicide, Robin Oig replaced the covering with the brief exclamation, “He was a pretty man!”
My story is nearly ended. The unfortunate Highlander stood his trial at Carlisle. I was myself present, and as a young Scottish lawyer, or barrister at least, and reputed a man of some quality, the politeness of the Sheriff of Cumberland offered me a place on the bench. The facts of the case were proved in the manner I have related them; and whatever might be at first the prejudice of the audience against a crime so un-English as that of assassination from revenge, yet when the rooted national prejudices of the prisoner had been explained, which made him consider himself as stained with indelible dishonour, when subjected to personal violence—when his previous patience, moderation, and endurance were considered—the generosity of the English audience was inclined to regard his crime as the wayward aberration of a false idea of honour rather than as flowing from a heart naturally savage, or perverted by habitual vice. I shall never forget the charge of the venerable judge to the jury, although not at that time liable to be much affected either by that which was eloquent or pathetic.
“We have had,” he said, “in the previous part of our duty” (alluding to some former trials), “to discuss crimes which infer disgust and abhorrence, while they call down the well-merited vengeance of the law. It is now our still more melancholy task to apply its salutary though severe enactments to a case of a very singular character, in which the crime (for a crime it is, and a deep one) arose less out of the malevolence of the heart, than the error of the understanding—less from any idea of committing wrong, than from an unhappily perverted notion of that which is right. Here we have two men, highly esteemed, it has been stated, in their rank of life, and attached, it seems, to each other as friends, one of whose lives has been already sacrificed to a punctilio, and the other is about to prove the vengeance of the offended laws; and yet both may claim our commiseration at least, as men acting in ignorance of each other’s national prejudices, and unhappily misguided rather than voluntarily erring from the path of right conduct.
“In the original cause of the misunderstanding, we must in justice give the right to the prisoner at the bar. He had acquired possession of the enclosure, which was the object of competition, by a legal contract with the proprietor, Mr. Ireby; and yet, when accosted with reproaches undeserved in themselves, and galling, doubtless, to a temper at least sufficiently susceptible of passion, he offered notwithstanding, to yield up half his acquisition, for the sake of peace and good neighbourhood, and his amicable proposal was rejected with scorn. Then follows the scene at Mr. Heskett the publican’s, and you will observe how the stranger was treated by the deceased, and, I am sorry to observe, by those around, who seem to have urged him in a manner which was aggravating in the highest degree. While he asked for peace and for composition, and offered submission to a magistrate, or to a mutual arbiter, the prisoner was insulted by a whole company, who seem on this occasion to have forgotten the national maxim of ‘fair play;’ and while attempting to escape from the place in peace, he was intercepted, struck down, and beaten to the effusion of his blood.
“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 cockpit, 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
