I did not begin to keep a regular full journal till some days after we
had set out from Edinburgh; but I have luckily preserved a good many
fragments of his _Memorabilia_ from his very first evening in Scotland.
We had, a little before this, had a trial for murder, in which the
judges had allowed the lapse of twenty years since its commission as a
plea in bar, in conformity with the doctrine of prescription in the
_civil_ law, which Scotland and several other countries in Europe have
adopted. He at first disapproved of this; but then he thought there was
something in it, if there had been for twenty years a neglect to
prosecute a crime which was _known_. He would not allow that a murder,
by not being _discovered_ for twenty years, should escape
punishment[51]. We talked of the ancient trial by duel. He did not think
it so absurd as is generally supposed; 'For (said he) it was only
allowed when the question was _in equilibrio_, as when one affirmed and
another denied; and they had a notion that Providence would interfere in
favour of him who was in the right. But as it was found that in a duel,
he who was in the right had not a better chance than he who was in the
wrong, therefore society instituted the present mode of trial, and gave
the advantage to him who is in the right.'
We sat till near two in the morning, having chatted a good while after
my wife left us.
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