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.