Part 14

In those days both civil and criminal procedure was conducted in much the same spirit as a suit at war. When a great noble was to be tried for some monstrous murder or treason, he appeared at the bar with as many of his retainers, and as many of his friends and their retainers, as he could muster, and justice only had its course if the government chanced to be the strongest, which often was not the case. It was considered dishonourable not to countenance a friend in troubles of this kind, however black might be his moral guilt. The trial of Bothwell for the assassination of Darnley is a noted example of a criminal outbraving his judges and jury. Relationship, friendly connection, solicitation of friends, and direct bribes were admitted and recognised influences to which the civil judge was expected to give way. If a difficulty were found in inducing a judge to vote against his conscience, he might at least perhaps be induced by some of those considerations to absent himself, so as to allow the case to go in the desired way. The story of the abduction of Gibson of Durie by Christie’s Will, and his immurement in a Border tower for some weeks, that his voice might be absent in the decision of a case—as given in the _Border Minstrelsy_ by Scott—is only incorrect in some particulars. (As the real case is reported in Pitcairn’s _Criminal Trials_, it appears that, in September 1601, Gibson was carried off from the neighbourhood of St Andrews by George Meldrum, younger of Dumbreck, and hastily transported to the castle of Harbottle in Northumberland, and kept there for eight days.) But, after all, Scotland was not singular among European nations in these respects. In Molière’s _Misanthrope_, produced in 1666, we find the good-natured Philinte coolly remonstrating with Alceste on his unreasonable resolution to let his lawsuit depend only on right and equity.

‘Qui voulez-vous donc, qui pour vous sollicite?’ says Philinte. ‘Aucun juge par vous ne sera visité?’

‘Je ne remuerai point,’ returns the misanthrope.

_Philinte._ Votre partie est forte, et peut par sa cabale entrainer....

_Alceste._ Il n’importe....

_Philinte._ Quel homme!... On se riroit de vous, Alceste, si on vous entendoit parler de la façon. (_People would laugh at you if they heard you talk in this manner._)

It is a general tradition in Scotland that the English judges whom Cromwell sent down to administer the law in Scotland, for the first time made the people acquainted with impartiality of judgment. It is added that, after the Restoration, when native lords were again put upon the bench, some one, in presence of the President Gilmour, lauding the late English judges for the equity of their proceedings, his lordship angrily remarked: ‘De’il thank them; a wheen kinless loons!’ That is, no thanks to them; a set of fellows without relations in the country, and who, consequently, had no one to please by their decisions.

After the Restoration there was no longer direct bribing, but other abuses still flourished. The judges were tampered with by private solicitation. Decisions went in favour of the man of most personal or family influence. The following anecdote of the reign of Charles II. rests on excellent authority: ‘A Scotch gentleman having entreated the Earl of Rochester to speak to the Duke of Lauderdale upon the account of a business that seemed to be supported by a clear and undoubted right, his lordship very obligingly promised to do his utmost endeavours to engage the duke to stand his friend in a concern so just and reasonable as his was; and accordingly, having conferred with his grace about the matter, the duke made him this very odd return, that though he questioned not the right of the gentleman he recommended to him, yet he could not promise him a helping hand, and far less success in business, if he knew not first the man, whom perhaps his lordship had some reason to conceal; “because,” said he to the earl, “if your lordship were as well acquainted with the customs of Scotland as I am, you had undoubtedly known this among others—_Show me the man, and I’ll show you the law_;” giving him to understand that the law in Scotland could protect no man if either his purse were empty or his adversaries great men, or supported by great ones.’[92]

One peculiar means of favouring a particular party was then in the power of the presiding judge: he could call a cause when he pleased. Thus he would watch till one or more judges who took the opposite view to his own were out of the way—either in attendance on other duties or from illness—and then calling the cause, would decide it according to his predilection. Even the first President Dalrymple, afterwards Viscount Stair, one of the most eminent men whom the Scottish law-courts have ever produced, condescended to favour a party in this way. An act enjoining the calling of causes according to their place in a regular roll was passed in the reign of Charles II.; but the practice was not enforced till the days of President Forbes, sixty years later. We have a remarkable illustration of the partiality of the bench in a circumstance which took place about the time of the Revolution. During the pleadings in a case between Mr Pitilloch, an advocate, and Mr Aytoun of Inchdairnie, the former applied the term _briber_ to Lord Harcarse, a judge seated at the moment on the bench, and who was father-in-law to the opposite party. The man was imprisoned for contempt; but this is not the point. Not long after, in this same cause, Lord Harcarse went down to the bar in his gown, and pleaded for his son-in-law Aytoun!

About that period a curious indirect means of influencing the judges began to be notorious. Each lord had a dependant or favourite, generally some young relative, practising in the court, through whom it was understood that he could be prepossessed with a favourable view of any cause. This functionary was called a _Peat_ or _Pate_, from a circumstance thus related in Wilkes’s _North Briton_: ‘One of the former judges of the Court of Session, of the first character, knowledge, and application to business, had a son at the bar whose name was Patrick; and when the suitors came about, soliciting his favour, his question was: “Have you consulted _Pat_?” If the answer was affirmative, the usual reply of his lordship was: “I’ll inquire of _Pat_ about it; I’ll take care of your cause; go home and mind your business.” The judge in that case was even as good as his word, for while his brother-judges were robing, he would tell them what pains his son had taken, and what trouble he had put himself to, by his directions, in order to find out the real circumstances of the dispute; and as no one on the bench would be so unmannerly as to question the veracity of the son or the judgment of the father, the decree always went according to the information of _Pat_. At the present era, in case a judge has no son at the bar, his nearest relation (and he is sure to have one there) officiates in that station. But, as it frequently happens, if there are _Pats_ employed on each side, the judges differ, and the greatest interest—that is, the longest purse—is sure to carry it.’

I bring the subject to a conclusion by a quotation from the _Court of Session Garland_: ‘Even so far down as 1737 traces of the ancient evil may be found. Thus, in some very curious letters which passed between William Foulis, Esq. of Woodhall, and his agent, Thomas Gibson of Durie, there is evidence that private influence could even then be resorted to. The agent writes to his client, in reference to a pending lawsuit (23rd November 1735): “I have spoken to Strachan and several of the lords, who are all surprised Sir F[rancis Kinloch] should stand that plea. By Lord St Clair’s advice, Mrs Kinloch is to wait on Lady Cairnie to-morrow, to cause her ask the favour of Lady St Clair to solicit Lady Betty Elphingston and Lady Dun. My lord promises to back his lady, and to ply both their lords, also Leven and his cousin Murkle.[93] He is your good friend, and wishes success; he is jealous Mrs Mackie will side with her cousin Beatie. St Clair says _Leven[94] has only once gone wrong upon his hand since he was a Lord of Session_. Mrs Kinloch has been with Miss Pringle, Newhall. Young Dr Pringle is _a good agent there_, and discourses Lord Newhall[95] _strongly on the law of nature_,” &c.

‘Again, upon the 23rd of January 1737, he writes: “I can assure you that when Lord Primrose left this town, he stayed all that day with Lord J[ustice] C[lerk],[96] and went to Andrew Broomfield at night, and went off post next morning; and what made him despair of getting anything done was, that it has been so long delayed, after promising so frankly, when he knew the one could cause the other trot to him like a penny-dog when he pleased. But there’s another hindrance: I suspect much Penty[97] has not been in town as yet, and I fancy it’s by him the other must be managed. The Ld. J[ustice] C[lerk] is frank enough, but the other two are —— clippies. I met with Bavelaw and Mr William on Tuesday last. I could not persuade the last to go to a wine-house, so away we went to an aquavity-house, where I told Mr Wm. what had passed, as I had done before that to Bavelaw. They seemed to agree nothing could be done just now, but to know why Lord Drummore[98] dissuaded bringing in the plea last winter. _I have desired Lord Haining to speak_, but only expect his answer against Tuesday or Wednesday.”

‘It is not our intention to pursue these remarks further, although we believe that judicial corruption continued long after the Union. We might adduce Lord President Forbes as a witness on this point, who, one of the most upright lawyers himself, did not take any pains to conceal his contempt for many of his brethren. A favourite toast of his is said to have been: “Here’s to such of the judges as don’t deserve the gallows.” Latterly, the complaint against the judges was not so much for corrupt dealing, with the view of enriching themselves or their “pet” lawyer, but for weak prejudices and feelings, which but ill accorded with the high office they filled.

‘These abuses, the recapitulation of which may amuse and instruct, are now only matter of history—the spots that once sullied the garments of justice are effaced, and the old compend, “Show me the man, and I’ll show you the law,” is out of date.’

COURT OF SESSION GARLAND.

A curious characteristic view of the Scottish bench about the year 1771 is presented in a doggerel ballad, supposed to have been a joint composition of James Boswell and John Maclaurin,[99] advocates, and professedly the history of a process regarding a bill containing a clause of penalty in case of failure. This _Court of Session Garland_, as it is called, is here subjoined, with such notes on persons and things as the reader may be supposed to require or care for.

PART FIRST.

The bill charged on was payable at sight, And decree was craved by Alexander Wight;[100] But because it bore a penalty in case of failzie, It therefore was null, contended Willie Baillie.[101]

The Ordinary, not choosing to judge it at random, Did with the minutes make _avisandum_; And as the pleadings were vague and windy, His lordship ordered memorials _hinc inde_.

We, setting a stout heart to a stay brae, Took into the cause Mr David Rae.[102] Lord Auchinleck,[103] however, repelled our defence, And, over and above, decerned for expense.

However, of our cause not being ashamed, Unto the whole lords we straightway reclaimed; And our Petition was appointed to be seen, Because it was drawn by Robbie Macqueen.[104]

The Answer by Lockhart[105] himself it was wrote, And in it no argument nor fact was forgot. He is the lawyer that from no cause will flinch, And on this occasion divided the bench.

Alemore[106] the judgment as illegal blames; ‘’Tis equity, you bitch,’ replies my Lord Kames.[107] ‘This cause,’ cries Hailes,[108] ‘to judge I can’t pretend, For _justice_, I perceive, wants an _e_ at the end.’

Lord Coalstoun[109] expressed his doubts and his fears; And Strichen[110] threw in his _weel-weels_ and _oh dears_. ‘This cause much resembles the case of Mac-Harg, And should go the same way,’ says Lordie Barjarg.[111]

‘Let me tell you, my lords, this cause is no joke!’ Says, with a horse-laugh, my Lord Elliock.[112] ‘To have read all the papers I pretend not to brag!’ Says my Lord Gardenstone[113] with a snuff and a wag.

Up rose the President,[114] and an angry man was he— ‘To alter the judgment I can never agree!’ The east wing cried ‘YES,’ and the west wing cried ‘NOT;’ And it was carried ‘ADHERE’[115] by my lord’s casting vote.

The cause being somewhat knotty and perplext, Their lordships did not know how they’d determine next; And as the session was to rise so soon, They superseded extract till the 12th of June.[116]

PART SECOND.

Having lost it so nigh, we prepare for the summer, And on the 12th of June presented a reclaimer; But dreading a refuse, we gave Dundas[117] a fee, And though it run nigh, it was carried ‘TO SEE.’[118]

In order to bring aid from usage bygone, The Answers were drawn by _quondam_ Mess John.[119] He united with such art our law with the civil, That the counsel on both sides wished him to the devil.

The cause being called, my Lord Justice-clerk,[120] With all due respect, began a loud bark: He appealed to his conscience, his heart, and from thence Concluded—‘TO ALTER,’ but to give no expense.

Lord Stonefield,[121] unwilling his judgment to pother, Or to be _anticipate_, agreed with his brother: But Monboddo[122] was clear the bill to enforce Because, he observed, it was the price of a horse.

Says Pitfour,[123] with a wink, and his hat all a-jee, ‘I remember a case in the year twenty-three— The Magistrates of Banff _contra_ Robert Carr; I remember weel—I was then at the bar.

Likewise, my lords, in the case of Peter Caw, _Superflua non nocent_ was found to be law.’ Lord Kennet[124] also quoted the case of one Lithgow, Where a penalty in a bill was held _pro non scripto_.

The Lord President brought his chair to the plumb, Laid hold of the bench, and brought forward his bum; ‘In these Answers, my lords, some freedoms are used, Which I could point out, provided I choosed.

I was for the interlocutor, my lords, I admit, But am open to conviction as long’s I here do sit. To oppose your precedents, I quote a few cases;’ And Tait[125] _à priori_, hurried up the causes.

He proved it as clear as the sun in the sky, That their maxims of law could not here apply; That the writing in question was neither bill nor band, But something unknown in the law of the land.

The question—‘Adhere,’ or ‘Alter,’ being put, It was carried—‘To Alter,’ by a casting vote; Baillie then moved—‘In the bill there’s a raze;’ But by this time their lordships had called a new cause.

A few additions to the notes, in a more liberal space, will complete what I have to set down regarding the lawyers of the last age.

LOCKHART OF COVINGTON.[126]

Lockhart used to be spoken of by all old men about the Court of Session as a paragon. He had been at the bar from 1722, and had attained the highest eminence long before going upon the bench, which he did at an unusually late period of life; yet so different were those times from the present that, according to the report of Sir William Macleod Bannatyne to myself in 1833, Lockhart realised only about a thousand a year by his exertions, then thought a magnificent income. The first man at the Scottish bar in our day is believed to gain at least six times this sum annually. Lockhart had an isolated house behind the Parliament Close, which was afterwards used as the Post-office.[127] It was removed some years ago to make way for the extension of the buildings connected with the court; leaving only its coach-house surviving, now occupied as a broker’s shop in the Cowgate.

Mr Lockhart and Mr Fergusson (afterwards Lord Pitfour) were rival barristers—agreeing, however, in their politics, which were of a Jacobite complexion. While the trials of the poor _forty-five_ men were going on at Carlisle, these Scottish lawyers heard with indignation of the unscrupulous measures adopted to procure convictions. They immediately set off for Carlisle, arranging with each other that Lockhart should examine evidence, while Fergusson pleaded and addressed the jury; and offering their services, they were gladly accepted as counsel by the unfortunates whose trials were yet to take place. Each exerted his abilities, in his respective duties, with the greatest solicitude, but with very little effect. The jurors of Carlisle had been so frightened by the Highland army that they thought everything in the shape or hue of tartan a damning proof of guilt; and, in truth, there seemed to be no discrimination whatever exerted in inquiring into the merits of any particular criminal; and it might have been just as fair, and much more convenient, to try them by wholesale or in companies. At length one of our barristers fell upon an ingenious expedient, which had a better effect than all the eloquence he had expended. He directed his man-servant to dress himself in some tartan habiliments, to skulk about for a short time in the neighbourhood of the town, and then permit himself to be taken. The man did so, and was soon brought into court, and accused of the crime of high treason, and would have been condemned to death had not his master stood up, claimed him as his servant, and proved beyond dispute that the supposed criminal had been in immediate attendance upon his person during the whole time of the Rebellion. This staggered the jury, and, with the aid of a little amplification from the mouth of the young advocate, served to make them more cautious afterwards in the delivery of their important fiat.

To show the estimation in which Lockhart of Covington was held as an advocate, the late Lord Newton, when at the bar, wore his gown till it was in tatters, and at last had a new one made, with a fragment of the neck of the original sewed into it, whereby he could still make it his boast that he wore ‘Covington’s gown.’

LORD KAMES.

This able judge and philosopher in advance of his time—for such he was—is described by his biographer, Lord Woodhouselee, as indulging in a certain humorous playfulness, which, to those who knew him intimately, detracted nothing from the feeling of respect due to his eminent talents and virtues. To strangers, his lordship admits, it might convey ‘the idea of lightness.’ The simple fact here shadowed forth is that Lord Kames had a roughly playful manner, and used phrases of an ultra-eccentric character. Among these was a word only legitimately applicable to the female of the canine species. The writer of the _Garland_ introduces this characteristic phrase. When his lordship found his end approaching very near, he took a public farewell of his brethren. I was informed by an ear-and-eye witness, who is certain that he could not be mistaken, that, after addressing them in a solemn speech and shaking their hands all round, in going out at the door of the court-room he turned about, and casting them a last look, cried in his usual familiar tone: ‘Fare ye a’ weel, ye bitches!’ He died eight days after.

It was remarked that a person called _Sinkum the Cawdy_, who had a short and a long leg and was excessively addicted to swearing, used to lie in wait for Lord Kames almost every morning, and walk alongside of him up the street to the Parliament House. The mystery of Sterne’s little, flattering Frenchman, who begged so successfully from the ladies, was scarcely more wonderful than this intimacy, which arose entirely from Lord Kames’s love of the gossip which Sinkum made it his business to cater for him.

These are not follies of the wise. They are only the tribute which great genius pays to simple nature. The serenity which marked the close of the existence of Kames was most creditable to him, though it appeared, perhaps, in somewhat whimsical forms to his immediate friends. For three or four days before his death, he was in a state of great debility. Some one coming in, and finding him, notwithstanding his weakness, engaged in dictating to an amanuensis, expressed surprise. ‘How, man,’ said the declining philosopher, ‘would you ha’e me stay wi’ my tongue in my cheek till death comes to fetch me?’

LORD HAILES.

When Lord Hailes died, it was a long time before any will could be found. The heir-male was about to take possession of his estates, to the exclusion of his eldest daughter. Some months after his lordship’s death, when it was thought that all further search was vain, Miss Dalrymple prepared to retire from New Hailes, and also from the mansion-house in New Street, having lost all hope of a will being discovered in her favour. Some of her domestics, however, were sent to lock up the house in New Street, and in closing the window-shutters, Lord Hailes’s will dropped out upon the floor from behind a panel, and was found to secure her in the possession of his estates, which she enjoyed for upwards of forty years.

The literary habits of Lord Hailes were hardly those which would have been expected from his extreme nicety of phrase. The late Miss Dalrymple once did me the honour to show me the place where he wrote the most of his works—not the fine room which contained, and still contains, his books—no secluded boudoir, or den, where he could shut out the world, but the parlour fireside, where sat his wife and children.

[1868.—Now that the grave has for thirty years closed over Miss Dalrymple, it may be allowable to tell that she was of dwarfish and deformed figure, while amiable and judicious above the average of her sex. Taking into view her beautiful place of residence and her large wealth, she remarked to a friend one day: ‘I can say, for the honour of man, that I never got an offer in my life.’]

LORD GARDENSTONE.

This judge had a predilection for pigs. One, in its juvenile years, took a particular fancy for his lordship, and followed him wherever he went, like a dog, reposing in the same bed. When it attained the mature years and size of swinehood, this of course was inconvenient. However, his lordship, unwilling to part with his friend, continued to let it sleep at least in the same room, and, when he undressed, laid his clothes upon the floor as a bed to it. He said that he liked it, for it kept his clothes warm till the morning. In his mode of living he was full of strange, eccentric fancies, which he seemed to adopt chiefly with a view to his health, which was always that of a valetudinarian.[128]

LORD PRESIDENT DUNDAS.

This distinguished judge was, in his latter years, extremely subject to gout, and used to fall backwards and forwards in his chair—whence the ungracious expression in the _Garland_. He used to characterise his six clerks thus: ‘Two of them cannot _read_, two of them cannot _write_, and the other two can neither _read_ nor _write_!’ The eccentric Sir James Colquhoun was one of those who could not _read_. In former times it was the practice of the Lord President to have a sand-glass before him on the bench, with which he used to measure out the utmost time that could be allowed to a judge for the delivery of his opinion. Lord President Dundas would never allow a single moment after the expiration of the sand, and he has often been seen to shake his old-fashioned chronometer ominously in the faces of his brethren when their ‘ideas upon the subject’ began, in the words of the _Garland_, to get vague and windy.

LORD MONBODDO.