"There is, no doubt, attached to every even the most innocent of casual slaughter, a certain degree of blame, inasmuch as almost everything of the kind might have been avoided had the slayer exhibited the strictest degree of diligence. A well-known and authentic story will illustrate the proposition. A young gentleman, just married to a young lady of whom he was passionately fond, in affectionate trifling presented at her a pistol, of which he had drawn the charge some days before. The lady, entering into the joke, desired him to fire: he did so, and shot her dead; the pistol having been again charged by his servant without his knowledge. Can any one read this story, and feel any emotion but that of sympathy towards the unhappy husband? Can they ever connect the case with an idea of punishment? Yet, divesting it of these interesting circumstances which act upon the imagination, it is precisely that of the panel at your Lordships' Bar; and though no one will pretend to say that such a homicide is other than casual, yet there is not the slightest question but it might have been avoided had the killer taken the precaution of examining his piece. But this is not the degree of culpa which can raise a misfortune to the pitch of a crime. It is only an instance that no accident can take place without its afterwards being discovered that the chief actor might have avoided committing it, had he been gifted with the spirit of prophecy, or with such an extreme degree of prudence as is almost equally rare.
"In the instance of shooting at butts, or at a bird, the person killed must have been somewhat in the line previous to the discharge of the shot, otherways it could never have come near him. The shooter must therefore have been guilty culpæ levis seu levissimæ in firing while the deceased was in such a situation. In like manner, it is difficult to conceive how death should happen in consequence of a boxing or wrestling match, without some excess upon the part of the killer. Nay, in the exercise of the martial amusements of our forefathers, even by royal commission, should a champion be slain in running his barriers, or performing his tournament, it could scarcely happen without some culpa seu levis seu levissima, on the part of his antagonist. Yet all these are enumerated in the English law-books as instances of casual homicide only; and we may therefore safely conclude, that by the law of the sister country a slight degree of blame will not subject the slayer per infortunium to the penalties of culpable homicide.
"Guilt, as an object of punishment, has its origin in the mind and intention of the actor; and therefore, where that is wanting, there is no proper object of chastisement. A madman, for example, can no more properly be said to be guilty of murder than the sword with which he commits it, both being equally incapable of intending injury. In the present case, in like manner, although it ought no doubt to be matter of deep sorrow and contrition to the panel that his folly should have occasioned the loss of life to a fellow-creature; yet as that folly can neither be termed malice, nor yet doth amount to a gross negligence, he ought rather to be pitied than condemned. The fact done can never be recalled, and it rests with your Lordships to consider the case of this unfortunate young man, who has served his country in an humble though useful station,—deserved such a character as is given him in the letter of his officers,—and been disabled in that service. You will best judge how (considering he has suffered a confinement of six months) he can in humanity be the object of further or severer punishment, for a deed of which his mind at least, if not his hand, is guiltless. When a case is attended with some nicety, your Lordships will allow mercy to incline the balance of justice, well considering with the legislator of the East, 'It is better ten guilty should escape than that one innocent man should perish in his innocence.'"
The young sailor was acquitted.
To return for a moment to Scott's love-affair. I find him writing as follows, in March, 1795, to his cousin, William Scott, now Laird of Raeburn, who was then in the East Indies:—"The lady you allude to has been in town all this winter, and going a good deal into public, which has not in the least altered the meekness of her manners. Matters, you see, stand just as they did."
To another friend he writes thus, from Rosebank, on the 23d of August, 1795:—
It gave me the highest satisfaction to find, by the receipt of your letter of the 14th current, that you have formed precisely the same opinion with me, both with regard to the interpretation of [Miss Stuart's] letter as highly flattering and favorable, and to the mode of conduct I ought to pursue—for, after all, what she has pointed out is the most prudent line of conduct for us both, at least till better days, which, I think myself now entitled to suppose, she, as well as I myself, will look forward to with pleasure. If you were surprised at reading the important billet, you may guess how agreeably I was so at receiving it; for I had, to anticipate disappointment, struggled to suppress every rising gleam of hope; and it would be very difficult to describe the mixed feelings her letter occasioned, which, entre nous, terminated in a very hearty fit of crying. I read over her epistle about ten times a day, and always with new admiration of her generosity and candor—and as often take shame to myself for the mean suspicions, which, after knowing her so long, I could listen to, while endeavoring to guess how she would conduct herself. To tell you the truth, I cannot but confess that my amour propre, which one would expect should have been exalted, has suffered not a little upon this occasion, through a sense of my own unworthiness, pretty similar to that which afflicted Linton upon sitting down at Keir's table. I ought perhaps to tell you, what indeed you will perceive from her letter, that I was always attentive, while consulting with you upon the subject of my declaration, rather to under-than over-rate the extent of our intimacy. By the way, I must not omit mentioning the respect in which I hold your knowledge of the fair sex, and your capacity of advising in these matters, since it certainly is to your encouragement that I owe the present situation of my affairs. I wish to God, that, since you have acted as so useful an auxiliary during my attack, which has succeeded in bringing the enemy to terms, you would next sit down before some fortress yourself, and were it as impregnable as the rock of Gibraltar, I should, notwithstanding, have the highest expectations of your final success. Not a line from poor Jack—What can he be doing? Moping, I suppose, about some watering-place, and deluging his guts with specifics of every kind—or lowering and snorting in one corner of a post-chaise, with Kennedy, as upright and cold as a poker, stuck into the other. As for Linton, and Crab, I anticipate with pleasure their marvellous adventures, in the course of which Dr. Black's self-denying ordinance will run a shrewd chance of being neglected.[118] They will be a source of fun for the winter evening conversations. Methinks I see the pair upon the mountains of Tipperary—John with a beard of three inches, united and blended with his shaggy black locks, an ellwand-looking cane with a gilt head in his hand, and a bundle in a handkerchief over his shoulder, exciting the cupidity of every Irish raparee who passes him, by his resemblance to a Jew pedlar who has sent forward his pack—Linton, tired of trailing his long legs, exalted in state upon an Irish garron, without stirrups, and a halter on its head, tempting every one to ask—
"Who is that upon the pony,
So long, so lean, so raw, so bony?"[119]
—calculating, as he moves along, the expenses of the salt horse—and grinning a ghastly smile, when the hollow voice of his fellow-traveller observes—"God! Adam, if ye gang on at this rate, the eight shillings and seven-pence halfpenny will never carry us forward to my uncle's at Lisburn." Enough of a thorough Irish expedition.
We have a great marriage towards here—Scott of Harden, and a daughter of Count Brühl, the famous chess-player, a lady of sixteen quarters, half-sister to the Wyndhams. I wish they may come down soon, as we shall have fine racketing, of which I will, probably, get my share. I think of being in town some time next month, but whether for good and all, or only for a visit, I am not certain. Oh, for November! Our meeting will be a little embarrassing one. How will she look, etc., etc., etc., are the important subjects of my present conjectures—how different from what they were three weeks ago! I give you leave to laugh when I tell you seriously, I had begun to "dwindle, peak, and pine," upon the subject—but now, after the charge I have received, it were a shame to resemble Pharaoh's lean kine. If good living and plenty of exercise can avert that calamity, I am in little danger of disobedience, and so, to conclude classically,