The Story of Pinched Tom.
IN searching again Lord Kilkerran’s Session Papers in the Advocates’ Library, I observed a strange remark written on the margin of one of them—“Beware of pinched Tom”—the meaning of which I was at a loss to find. His lordship was known to be a very grave man, as well as an excellent lawyer, and all so unlike the Newtons and Harmands, who made the blind Lady Justice laugh by the antics of that other lady sung by Beranger—Dame Folly—that I was put to my wit’s end, although I admit that, by a reference to a part of the printed Session Papers opposite to which the remark was made, I thought I could catch a glimmering of his lordship’s intention. The law case occupying the papers comprehended a question of disputed succession, and that question involved the application of a curious law in Scotland, which still remains.
I believe we borrowed it from that great repertory from which our forefathers took so much wisdom—the Roman code; but be that as it may, (and it’s no great matter in so far as regards my story,) certain it is that it is a part of our jurisprudence, that where a marriage is dissolved by the death of the wife within a year and a day of the celebration thereof, without leaving a living child, the tocher goes back to the wife’s friends. Of course nothing is more untrue than that bit of connubial wit: that while we hold, according to the Bible, that a man and his wife are one, we also very sensibly hold that the husband is that one. Then the child behoves to be a living child; but what constituted a living child often turned out to be as difficult a question as what constitutes a new birth of a living Christian, according to our good old sturdy Calvinism; for as all doctors know that a child will, on coming into the world, give a breath or two with a shiver, and then go off like a candle not properly lighted, it became a question whether, in such a case, the child could be said to have lived. Sometimes, too, the living symptom is less doubtful, as in the case, also very common, where the little stranger gives a tiny scream, the consequence of the filling of the lungs by the rushing in of the air, and having experienced a touch of the evils of life, makes up its mind to be off as quickly as possible from a wicked world. Now this last symptom our Scotch law accepts as the only evidence which can be received that the child had within it a living-spirit, or, as we call it, an immortal soul. It would be of no importance that it opened and shut its eyes, moved its hands, or kicked or sprawled in any way you please; all this is nothing but infantine pantomime, and the worst pantomime, too, that it has no possible meaning that any rational person could understand, and so, therefore, it goes for nothing. In short, our law holds that, unless “baby squeak,” there is no evidence that baby ever lived. Nor is any distinction made between the male and the female, although we know so well that the latter is much more inclined to make a noise than the other, were it for nothing else than to exhibit a first attempt to do that at which the sex are so good when they grow up and get husbands.
To bring back the reader to Lord Kilkerran’s remark—“Beware of Pinched Tom”—the case to which the note applied comprehended the question whether the child had been heard to cry, and though the connexion might be merely imaginary on my part, I recollected in the instant having heard the story I now relate of Mr Thomas Whitelaw, a merchant burgess of Edinburgh, who figured somewhere between the middle and the end of last century, and took for wife a certain Janet Monypenny. In which union “the sufficient reason” which always exists, though we do not always know it, was on the part of the said Thomas the certainty that Janet’s name (defying Shakespeare’s question) was a real designative of a quality, that being that she possessed, in her own right, not merely many a penny, but so many thousand pennies, that they amounted to somewhere about two thousand merks, a large sum in those olden days. And this money was perhaps the more valuable, that the heiress had an unfortunate right by inheritance to consumption, whereby she ran a risk of being taken away, leaving her money unconsumed in the hands of her husband; an event, this latter, which our merchant burgess could certainly have turned to more certain account if he had provided against the law we have mentioned by entering into an antenuptial contract of marriage, wherein it might have been set forth that, though the marriage should be dissolved by the death of the wife before “year and day,” without a living child being born thereof, yet the husband’s right to the tocher would remain. But then Burgess Thomas did not know of any such law, while Mr George Monypenny, the brother of Mrs Janet, knew it perfectly, the more by token that he was a writer, that is, a legal practitioner, at the Luckenbooths. And though Mr George might have made a few pennies by writing out the contract, he never hinted to his intended brother-in-law of the propriety of any such act, because he knew that he had a chance of coming to more pennies, by the death of his sister, within the year and the day.
So the marriage was entered into without more use of written paper than what we call the marriage lines, and Writer George was satisfied until he began to see that Mrs Whitelaw was likely to be a mother before the expiry of the year and the day; but then he had the consolation—for, alas! human nature was the same in those olden times that it is now—of seeing that, while poor Janet was increasing in one way, she was decreasing in another, so that it was not unlikely that there would be not only a dead child, but a dead mother; and then he would come in as nearest of kin for the tocher of two thousand merks, of all which speculations on the part of the unnatural brother, Burgess Thomas knew nothing. But it so happened that Mrs Euphan Lythgow, the most skilly howdie or midwife in Edinburgh at that time, was the woman who was to bring the child into the world, and she had seen indications enough to satisfy her that there was a probability that things would go on in the very way so cruelly hoped for by the man of the law; nay, she had her eyes—open enough at all times—more opened still by some questions put to her by the wily expectant, and so she held it to be her duty to go straight to Burgess Thomas.
“I fear,” said she, “baith for the mother and the bairn, for she is worn awa to skin and bane, and if she bear the heir she will only get lighter, as we ca’ it, to tak on a heavier burden, even that o’ death. The bairn may live, but it’s only a chance.”
Whereat Burgess Thomas looked sad, for he really loved his wife, but it might just happen that a thought came into his head that death had no power over the two thousand merks.
“If baith the mother and the bairn dee,” continued Euphan, “the money you got by her will tak wing and flee awa to Mr George, her brother.”
“What mean you, woman?” asked Mr Whitelaw, as he looked wistfully and fearfully into the face of the howdie.
“Had ye no’ a contract o’ marriage?” continued she.
“No,” was the answer.
“Aweel, ye’re in danger, for ken ye na it is our auld Scotch law that when there’s nae contract, and the year and the day hasna passed, and when the mither dees and the bairn dees without a cry, the tocher flees back again? Heard ye never the auld rhyme—
‘Mither dead and bairn gane,
Pay the tocher to her kin;
But an ye hear the bairn squeal,
Gudeman, grip the tocher weel.’”
“God bless me, Mrs Lythgow! is that the law?” cried the husband, in a fright.
“Indeed, and it is,” was the rejoinder. “You are muckle obliged to Writer George. If the bairn lives to be baptized, George is no the name it will bear.”
“No,” replied he; “if a boy, it will be baptized Thomas.”
“Tam!” ejaculated the howdie in a screechy voice, the reason of which might be that her son carrying that name had died during the year, and she was affected.
But no sooner had the word Tam passed from her lips, than a large red cat came from the rug, and looking up in her face, mewed in so very expressive a way that the sadness which the recollection of her boy had inspired passed suddenly away, and was succeeded by a comical look; and rubbing Bawdrons “along of the hair,” as Mr Dickens would express it, the true way of treating either cats or cat-witted people, she continued addressing the favourite—
“And you, Tam, and I will be better acquainted before the twa thousand merks are paid to Writer George.”
“What does the woman mean?” said the burgess. “What connexion is there between that animal and my wife’s fortune?”
“Ye’ll ken that when the time comes,” was the answer; “but coming nearer to the subject in hand, ye’ll take care to hae twa witnesses in the blue-painted parlour, next to your bed-room, when I’m untwining the mistress o’ her burden, whether it be a dead bairn or a living ane.”
“And what good will that do me if both the mother and child should die?” inquired he.
“Ye’ll ken that when Writer George comes and asks ye for the tocher,” was the answer.
Nor did Mrs Euphan Lythgow wait to throw any further light upon a subject which appeared to the burgess to require more than the candle of his own mind could supply if he should snuff it again and again, and arn’t we, every one of us, always snuffing the candle so often that we can see nothing? But Mrs Lythgow was what the Scotch people call “a skilly woman.” She could see—to use an old and very common expression—as far into a millstone as any one, and it was especially clear to her that she would deliver Mrs Whitelaw of a dead child, that death would deliver the mother of her life, and Writer George would deliver Maister Whitelaw of two thousand good merks of Scotch money, unless, as a poor salvage out of all this loss, she could deliver the burgess out of the hands of the writer. And so the time passed till the eventful evening came, when the wasted invalid was seized with those premonitory pains which have come right down from old mother Eve to the fair daughters of men, as a consequence of her eating the too sweet paradise pippin. The indispensable Mrs Euphan Lythgow was sent for express and came on the instant, for she knew she had unusual duties to perform, nor did she forget as one of the chief of those to get Mrs Jean Gilchrist, a neighbouring gossip, and Robina Proudfoot, the servant, ensconsed in the said blue-painted parlour, for the sole end that they should hear what they could hear, but as for seeing anything that passed within the veil of the secret temple of Lucina, they were not to be permitted to get a glimpse until such time as might please the priestess of the mysteries herself.
All which secrecy has been followed by the unfortunate consequence that history nowhere records what took place in that secret room for an hour or two after the two women took up their station in the said blue-painted chamber. But this much we know, that the house was so silent that our favourite Tom could not have chosen a more auspicious evening for mousing for prey in place of mewing for play, even if he had had all the sagacity of the famous cats of Tartesia. As for Mrs Gilchrist and Robina, they could not have listened more zealously, we might even say effectually, if they had been gifted with ears as long as those of certain animals in Trophonia; and surely we cannot be wrong in saying they were successful listeners, when we are able to report that Mrs Gilchrist nipped the bare fleshy arm of Robina, as a sign that she heard what she wanted to hear.
“That’s the scream o’ the wean!” said she.
“Ay, and may the Lord be praised!” was the answer of Robina, in spite of the nip.
But neither the one nor the other knew that that cry was verily worth two thousand merks to Maister Burgess Whitelaw, the father, who in a back-room sat in the deep pit of anxiety and heard nothing, and perhaps it was better that he didn’t, for that cry might have raised hopes—never to be realised—of the birth of a living son or daughter, who would by and by lisp in his ear the charmed word “Father”—of a dead wife’s recovery, after so terrible a trial to one so much wasted—of the saving of his fortune from the ruthless hands of his brother-in-law. But there is always some consolation for the miserable, and didn’t Mrs Janet’s favourite, even Tom himself, with his bright scarlet collar, come to him and sit upon his knee and look up in his face and purr so audibly, that one might have thought he was expressing sympathy and hope? So it is: nature is always laughing at her own work. Even as this pantomime was acting, Mrs Lythgow opened the door of the blue-painted chamber, and presenting a bundle to Mrs Gilchrist—
“The bairn is dead,” she whispered; “lay it on the table there out o’ the sight o’ its mother, who will not live lang enough even to see its dead face.”
“And yet we heard it cry,” said Robina. “Poor dear innocent,” she added, as she peered among the folds of the flannel, “ye have had a short life.”
“And no’ a merry ane,” added the gossip.
“Did ye expect the bairn to laugh, ye fule woman that ye are?” was the reply of the howdie. “Come and help me wi’ the deeing mither.”
And straightway the three women were by the bedside of the patient, in whose throat Death was already sounding his rattle, after the last effort of exhausted nature to give to the world a life in exchange for her own; and Mr Whitelaw was there too to witness the dying throes of his wife, with perhaps the thought in his mind that the gods are pitiless as well as foolish, for what was the use of giving him a dead child in recompense for a dead mother, and taking away from him, at the very same moment, the said two thousand merks of good Scotch money. Wherein, so far, Mr Whitelaw was himself unjust to these much abused gods; but he did not know as yet that the child had cried, and who knows what consoling effect that circumstance might have had upon one who was what Pindar calls “a man of money.” At least, we will give to any man more than one of these merks who will show us out of the great “Treasury of Evils,” mentioned by the Greek poets, any one which cannot be ameliorated by money. And so Mr Whitelaw heard, in the last expiring breath of Mrs Janet Monypenny the departing sign of the loss of the three greatest good things of this world—a wife, a child, and a tocher.
But the moral oscillation comes round as sure as that of the pendulum, and in accordance with that law Mr Whitelaw was, within a short time after the death of his wife, told by Mrs Gilchrist that the child had made the much-wished-for sign of life. A communication, this, very easily accounted for, but we do not undertake to explain why, when Mr Whitelaw heard it, he was scarcely equal to the task of preventing an expression upon his sorrowful countenance which an ill-natured person would call a smile. Nor, indeed, is there any way of explaining so inexplicable a phenomenon, except by having recourse to the fact mentioned by Burns, that “man is a riddle.” A solution which will also serve us when we further narrate that this small wail of the child lightened wonderfully Mr Whitelaw’s duty in getting all things arranged for the funeral, including the melancholy peculiarity of getting the coffin made that was to contain a mother and her first-born. Nay, it enabled him even at the funeral to meet the triumphant look of his brother-in-law, Writer George, as it clearly said, even in the midst of his tears, “You owe me two thousand merks;” for we are to remember that Mr Whitelaw, in exchange for the writer’s perfidy in not mentioning to him the necessity of a contract of marriage, had with a spice of malice concealed from him the fact of the child having been heard to cry, and then it was natural for the writer to suppose that the child had been born dead.
As money ameliorates grief, business prevents grief from taking possession of the mind; and so we need not be surprised that within a week Mr Monypenny served Mr Whitelaw with a summons to appear before the fifteen Scotch lords who sat round a table in the form of a horse-shoe in the Parliament House of Edinburgh, or Court of Session, and there be ordered to pay to the pursuer or plaintiff the said two thousand merks, which devolved upon him, as the heir of his sister, in consequence of the dissolution of the marriage within a year and a day, without a living child being born thereof. Nor was Mr Whitelaw, angry as he was and withal confident of success, slow to give in his defence to the effect that the child had been born alive, and had been heard to scream—a defence which startled Writer George mightily; for it was the first intimation he had got of the important fact, and his experience told him how supple Scotch witnesses are—even to the extent that it took no fewer than fifteen learned judges to get the subtle thing called truth out of the subtle minds of “the canny people;” but he had no alternative than to consent to the commission to Maister Wylie, advocate, to take a proof of the defender’s averment and report. And so accordingly the proceedings went on. Mr Advocate Wylie sat in one of the rooms adjoining the court to take the depositions of the witnesses, and Mr Williamson was there for Mr Whitelaw, and Mr Hamilton for Mr Monypenny. The first witness called was Mrs Jean Gilchrist, who swore very honestly that she heard the child scream; and Robina Proudfoot swore as honestly to the same thing; nor could all the efforts of Mr Advocate Hamilton shake those sturdy witnesses, if it was not that, as so often happens with Scotch witnesses, the more the advocate wrestled with them, the more firm they waxed. Nor need we say that the philosophical axiom, that the intensity of belief is always inversely as the reason for it, never had weight with our Scotch judges. But then came the difficulty about the causa scientiæ; for neither of the two witnesses could swear that she saw the child alive and after the scream, inasmuch as the child was certainly dead before they saw the body; so it was only at best a strong presumption that the cry actually did come from that child. The witnesses dispersed these quibbles, and insisted that, as there was no other child in that room, the cry could come from no other source than Mrs Whitelaw’s baby. But the crowning witness was to come—Mrs Euphan Lythgow herself, who would put an end to all doubts; and come she did. Asked whether she delivered Mrs Whitelaw of a child on the night in question, her answer was in the affirmative.
“Was it a boy or a girl?”
“A callant, sir,” was the answer; for Scotch witnesses will use their own terms, let counsel do what they please. “And,” added Mrs Lythgow, “he was to be baptized after his father when the time came. He was to be called Tammas.”
“Just so,” continued Mr Hamilton; “and was he dead or alive when he was born?”
“Indeed, sir, little Tam wras as life-like as you are when I handled him wi’ thae hands.”
“How do you know that?” was the next question.
“Ken whether a bairn is dead or living?” responded the midwife, with an ironical laugh. “Do dead bairns scream, think ye, Maister Hamilton? Ay, sir, I heard little Tam cry just as plainly as I hear you speak. It’s God’s way wi’ mony a wean. They seem to ken it’s an ill warld they’re born into, wi’ so mony lawyers in’t, and they just gie a cry and gae awa back again.”
And thus the evidence was concluded; nor did it ever occur to these hair-wigged and ear-wigged gentlemen to ask the astute howdie whether there was any other creature in the house (except Mr Thomas Whitelaw himself, who was out of the question) that bore the name of Tam; and Mrs Lythgow’s conscience, like many others, sat as easy on the equivocation as a hen does on an addled egg with a shell like the rest, which contain little chickens all alive. And the case was virtually saved, as subsequently appeared, when the fifteen, all ear-wigged too, pronounced sentence in favour of the defender, Mr Whitelaw. But it was not till some time afterwards the real truth came out. “The labourer is worthy of his hire,” and when Mrs Euphan called for fee, on Mr Whitelaw asking how much, the cunning howdie replied—
“Just a hundred merks, Maister Whitelaw.”
“A hundred merks for bringing a child into the world, which lived no longer than to give a scream?”
“Ay, but you forget pinched Tam,” replied she.
Whereupon Mr Whitelaw began to meditate, and thereupon ejaculated—“Oh! I see. Yes, yes; I did forget pinched Tam; and now I remember, he came into me that evening after you had ejected him from the bed-room.”
“Surely, sir,” rejoined the woman; “think ye I was fule enough to keep him in the room to be seen by the women, after I had got out o’ him a’ that I wanted?”
And Mrs Lythgow got her hundred merks. How the incident came to the ears of Lord Kilkerran, history saith not; but if you are curious, you may see upon the margin of the said Session Paper the words—“Beware of pinched Tom!”
