... Another branch of the accusation against the defender as a justice of peace, is the ratification of irregular marriages. The defender must here also call the attention of his reverend brethren and judges to the expediency of his conduct. The girls were usually with child at the time the application was made to the defender. In this situation, the children born out of matrimony, though begot under promise of marriage, must have been thrown upon the parish, or perhaps murdered in infancy, had not the men been persuaded to consent to a solemn declaration of betrothment, or private marriage, emitted before the defender as a justice of peace. The defender himself, commiserating the situation of such women, often endeavored to persuade their seducers to do them justice; and men frequently acquiesced in this sort of marriage, when they could by no means have been prevailed upon to go through the ceremonies of proclamation of banns, or the expense and trouble of a public wedding. The declaration of a previous marriage was sometimes literally true; sometimes a fiction voluntarily emitted by the parties themselves, under the belief that it was the most safe way of constituting a private marriage de presenti. The defender had been induced, from the practice of other justices, to consider the receiving these declarations, whether true or false, as a part of his duty, which he could not decline, even had he been willing to do so. Finally, the defender must remind the Venerable Assembly that he acted upon these occasions as a justice of peace, which brings him back to the point from which he set out, namely, that the Reverend Court are utterly incompetent to take cognizance of his conduct in that character, which no sentence that they can pronounce could give or take away.
The second grand division of the libel against the defender refers to his conduct as a clergyman and a Christian. He was charged in the libel with the most gross and vulgar behavior, with drunkenness, blasphemy, and impiety; yet all the evidence which the appellants have been able to bring forward tends only to convict him of three acts of drunkenness during the course of fourteen years: for even the Presbytery, severe as they have been, acquit him quoad ultra. But the attention of the Reverend Court is earnestly entreated to the situation of the defender at the time, the circumstances which conduced to his imprudence, and the share which some of those had in occasioning his guilt, who have since been most active in persecuting and distressing him on account of it.
The defender must premise, by observing, that the crime of drunkenness consists not in a man's having been in that situation twice or thrice in his life, but in the constant and habitual practice of the vice; the distinction between ebrius and ebriosus being founded in common sense, and recognized by law. A thousand cases may be supposed, in which a man, without being aware of what he is about, may be insensibly led on to intoxication, especially in a country where the vice is unfortunately so common, that upon some occasions a man may go to excess from a false sense of modesty, or a fear of disobliging his entertainer. The defender will not deny, that after losing his senses upon the occasions, and in the manner to be afterwards stated, he may have committed improprieties which fill him with sorrow and regret: but he hopes, that in case he shall be able to show circumstances which abridge and palliate the guilt of his imprudent excess, the Venerable Court will consider these improprieties as the effects of that excess only, and not as arising from any radical vice in his temper or disposition. When a man is bereft of his judgment by the influence of wine, and commits any crime, he can only be said to be morally culpable, in proportion to the impropriety of the excess he has committed, and not in proportion to the magnitude of its evil consequences. In a legal view, indeed, a man must be held as answerable and punishable for such a crime, precisely as if he had been in a state of sobriety; but his crime is, in a moral light, comprised in the origo mali, the drunkenness only. His senses being once gone, he is no more than a human machine, as insensible of misconduct, in speech and action, as a parrot or an automaton. This is more particularly the case with respect to indecorums, such as the defender is accused of; for a man can no more be held a common swearer, or a habitual talker of obscenity, because he has been guilty of using such expressions when intoxicated, than he can be termed an idiot, because, when intoxicated, he has spoken nonsense. If, therefore, the defender can extenuate the guilt of his intoxication, he hopes that its consequences will be numbered rather among his misfortunes than faults; and that his Reverend Brethren will consider him, while in that state, as acting from a mechanical impulse, and as incapable of distinguishing between right and wrong. For the scandal which his behavior may have occasioned, he feels the most heartfelt sorrow, and will submit with penitence and contrition to the severe rebuke which the Presbytery have decreed against him. But he cannot think that his unfortunate misdemeanor, circumstanced as he was, merits a severer punishment. He can show that pains were at these times taken to lead him on, when bereft of his senses, to subjects which were likely to call forth improper or indecent expressions. The defender must further urge, that not being originally educated for the church, he may, before he assumed the sacred character, have occasionally permitted himself freedoms of expression which are reckoned less culpable among the laity. Thus he may, during that time, have learned the songs which he is accused of singing, though rather inconsistent with his clerical character. What, then, was more natural, than that, when thrown off his guard by the assumed conviviality and artful solicitations of those about him, former improper habits, though renounced during his thinking moments, might assume the reins of his imagination, when his situation rendered him utterly insensible of their impropriety?
... The Venerable Court will now consider how far three instances of ebriety, and their consequences, should ruin at once the character and the peace of mind of the unfortunate defender, and reduce him, at his advanced time of life, about sixty years, together with his aged parent, to a state of beggary. He hopes his severe sufferings may be considered as some atonement for the improprieties of which he may have been guilty; and that the Venerable Court will, in their judgment, remember mercy.
In respect whereof, etc.
Walter Scott.
This argument (for which he received five guineas) was sustained by Scott in a speech of considerable length at the Bar of the Assembly. It was far the most important business in which any solicitor had as yet employed him, and The Club mustered strong in the gallery. He began in a low voice, but by degrees gathered more confidence; and when it became necessary for him to analyze the evidence touching a certain penny-wedding, repeated some very coarse specimens of his client's alleged conversation, in a tone so bold and free, that he was called to order with great austerity by one of the leading members of the Venerable Court. This seemed to confuse him not a little; so when, by and by, he had to recite a stanza of one of M'Naught's convivial ditties, he breathed it out in a faint and hesitating style; whereupon, thinking he needed encouragement, the allies in the gallery astounded the Assembly by cordial shouts of hear! hear!—encore! encore! They were immediately turned out, and Scott got through the rest of his harangue very little to his own satisfaction.
He believed, in a word, that he had made a complete failure, and issued from the Court in a melancholy mood. At the door he found Adam Ferguson waiting to inform him that the brethren so unceremoniously extruded from the gallery had sought shelter in a neighboring tavern, where they hoped he would join them. He complied with the invitation, but seemed for a long while incapable of enjoying the merriment of his friends. "Come, Duns," cried the Baronet,—"cheer up, man, and fill another tumbler; here's ****** going to give us The Tailor."—"Ah!" he answered, with a groan, "the tailor was a better man than me, sirs; for he didna venture ben until he kenned the way." A certain comical old song, which had, perhaps, been a favorite with the minister of Girthon—
"The tailor he came here to sew,
And weel he kenn'd the way o't," etc.
was, however, sung and chorused; and the evening ended in the full jollity of High Jinks.
Mr. M'Naught was deposed from the ministry, and his young advocate has written out at the end of the printed papers on the case two of the songs which had been alleged in the evidence. They are both grossly indecent. It is to be observed, that the research he had made with a view to pleading this man's cause carried him, for the first, and I believe for the last time, into the scenery of his Guy Mannering; and I may add that several of the names of the minor characters of the novel (that of M'Guffog, for example) appear in the list of witnesses for and against his client.