Part 24

Chapter 243,990 wordsPublic domain

He domineered over the prisoners, the counsel, and his colleagues alike. Devoid of even a pretence to judicial decorum, he delighted while on the bench in the broadest jests and the most insulting taunts, “over which he would chuckle the more from observing that correct people were shocked. Yet this was not from cruelty, for which he was too strong and too jovial, but from cherished coarseness” (_ib._ pp. 115-116). Gerald, at his trial, ventured to say that Christianity was an innovation, and that all great men had been reformers, “even our Saviour Himself.” “Muckle He made o’ that,” chuckled Braxfield; “He was hangit” (_ib._ p. 117). On another occasion he remarked to an eloquent culprit at the bar, “Ye’re a vera clever chiel, man, but ye wad be nane the waur o’ a hangin’” (Lockhart’s “Life of Scott,” 1845, p. 425).

Of Braxfield’s grim humour in its unprofessional aspect but a few samples are now tolerable. Among these, however, is the following:--When a butler gave up his place because his mistress was always scolding him, “Lord!” exclaimed his master, “ye’ve little tae complain o’; be thankfu’ ye’re no marriet till her.”

“Out of the bar or off the bench,” says Stevenson, “he was a convivial man, a lover of wine, and one who shone peculiarly at tavern meetings.” When Lord Newton, then Charles Hay, was one morning pleading before him, after a night of hard drinking--the opposing counsel being in the like case--Braxfield observed, “Gentlemen, ye maun just pack up yer papers and gang hame; the tane o’ ye’s riftin’ punch and the ither’s belchin’ claret; there’ll be nae guid got oot o ye the day!” (“Kay’s Portraits,” 1877, vol. i., p. 169).

A portrait of Braxfield by Sir Henry Raeburn was exhibited at the Raeburn Exhibition at Edinburgh in 1876, a delightful description of which is given by R. L. Stevenson in his essay, “Some Portraits by Raeburn” (“Virginibus Puerisque,” 1881, pp. 219-236). Braxfield was, as every one knows, the prototype of Stevenson’s “Weir of Hermiston,” originally intended to be named “The Justice-Clerk,” and of which the author wrote to Mr. Charles Baxter, on 1st December, 1892, “Mind you, I expect ‘The Justice-Clerk’ to be my masterpiece. My Braxfield is already a thing of beauty and a joy for ever, and, so far as he has gone, _far_ my best character” (“Letters to his Family and Friends,” 1899, vol. ii. p. 273)--a judgment which the literary world has unanimously sustained.

There is preserved in the Advocates’ Library a copy of the “Latin Thesis on a Title of the Pandects” (“De Cadaveribus Damnatorum”), written by Sir Walter Scott on his admission to the Faculty of Advocates, 11th July, 1792, with the following dedication:--

SIR DAVID DALRYMPLE, Baronet, Lord Hailes (1726-1792), was the eldest son of Sir James Dalrymple, Bart., of Hailes, in the county of Haddington, Auditor of the Exchequer of Scotland, and Lady Christian Hamilton. He was born at Edinburgh on 28th October, 1726, and was descended on both sides from the nobility of the Scottish bar. His grandfather, Sir David Dalrymple, was the youngest son of the first Viscount Stair, Lord President of the Court of Session, and held the office of Lord Advocate for nineteen years. His mother was a daughter of Thomas, sixth Earl of Haddington, the lineal descendant of the first earl, who was Secretary for Scotland from 1612 to 1616, and President of the Court of Session from 1616 till his death in 1637. Dalrymple entered upon his studies at Eton, where he acquired a considerable knowledge of the classics and earned a high character for diligence and good conduct. He next re-visited his native city, and attended the University. From thence he went to Utrecht to study the civil law, returning to Edinburgh at the close of the Rising in 1746. He became a member of the Faculty of Advocates on 23rd February, 1748.

The death of his father two years later put Dalrymple in possession of a sufficient fortune to enable him to indulge his literary tastes; but he did not neglect his professional studies. As an oral pleader he was not successful. A defect in articulation prevented him from speaking fluently, and he was naturally an impartial critic rather than a zealous advocate. Notwithstanding this defect, he practised at the bar with much reputation for eighteen years. A great part of the business of litigation in Scotland at this time was conducted by written pleadings, and he became known as a learned and accurate lawyer.

On 6th March, 1766, Dalrymple was raised to the bench, on the death of George Carre of Nisbet, with the title of Lord Hailes, and on the resignation of George Brown of Coalston he was appointed a Lord of Justiciary on 3rd May, 1776. In the latter capacity he was distinguished for dignity, humanity, and impartiality--qualities at that times by no means characteristic of the criminal bench. The solemnity of his manner in administering oaths and pronouncing sentence specially struck his contemporaries. As a judge in the civil Court he was noted for his critical acumen and unswerving integrity. In knowledge of the history of law he was surpassed by none of his brethren, though among them were Elchies, Kaimes, and Monboddo.

At Edinburgh Lord Hailes lived some time in the Old Mint Close, foot of Todrick’s Wynd; he next had a house in Society, Brown’s Square; and latterly removed to New Street. His general residence was New Hailes, Musselburgh, where he died of apoplexy, the result of sedentary habits, on 29th November, 1792. Dr. “Jupiter” Carlyle, of Inveresk, who knew him well, summed up his character in a funeral sermon, in which he drew a glowing character of one of the most worthy of all the learned men of his time.

High as his memory stands as a judge, Hailes is better known to the world as a scholar and an author. His literary labours extend over a period of thirty-nine years--from the date of his first publication in 1751 till that of his last in 1790. “Lord Hailes was in some respects the very ideal of an historical inquirer. His mind was fair and dispassionate, and he reasoned with excellent logic. You will seldom find a mistake in fact or a conclusion not warranted by the premises in Lord Hailes’ ‘Annals.’ He had some defects, too, and the greatest of them is an unnecessary and repulsive dryness of narrative” (Cosmo Innes’ “Lectures on Scotch Legal Antiquities,” 1872, p. 8). His publications, almost without exception, related to the early antiquities of Christianity, or to the antiquities and history of Scotland, which before his time had been critically examined by scarcely any writer. His most important work is the “Annals of Scotland,” from Malcolm Canmore to Robert I., issued in 1776, and continued in 1779 to the accession of the House of Stuart. A complete catalogue of his numerous works will be found in “Kay’s Portraits” (1877, vol. i., pp. 367-370).

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SIR DAVID RAE, Baronet, Lord Eskgrove (1729-1804), son of the Reverend David Rae, of St. Andrews, an Episcopalian clergyman, by his wife, Agnes, daughter of Sir David Forbes of Newhall, was born in 1729. He was educated at the Grammar School of Haddington, and at the University of Edinburgh, where he attended the law lectures of Professor John Erskine (1695-1768). He was admitted a member of the Faculty of Advocates on 11th December, 1751, and quickly acquired a considerable practice. When the celebrated Douglas cause was before the Court he was appointed one of the Commissioners for collecting evidence, and in that capacity accompanied James Burnett (afterwards Lord Monboddo) and Francis Garden (afterwards Lord Gardenstone) to France in September, 1764, for the purpose of investigating the proceedings which had been carried on in Paris relative to the case.

After thirty years of honourable and successful practice at the bar Rae was, on the death of Alexander Boswell of Auchinleck, promoted to the bench on 14th November, 1782, and assumed the title of Lord Eskgrove, from the name of a small estate which he possessed near Inveresk. On 20th April, 1785, he was appointed a Lord of Justiciary, in succession to Robert Bruce of Kennet. He was one of the judges before whom Margarot, Skirving, and Gerald, the Reformers of 1793-4, were tried. He also assisted at the trials of the Rev. Thomas Fysche Palmer for sedition in 1793, and of Robert Watt and David Downie for high treason in 1794.

On the death of Lord Braxfield, Eskgrove was promoted to be Lord Justice-Clerk on 1st June, 1799, in which office he maintained the high character he had earned while at the bar. Henry Cockburn says of him, “Eskgrove was a very considerable lawyer; in mere knowledge probably Braxfield’s superior. But he had nothing of Braxfield’s grasp or reasoning, and in everything requiring force or soundness of head he was a mere child compared with that practical Hercules” (“Memorials of his Time,” 1856, p. 118). He was created a baronet on 27th June, 1804; died at Eskgrove on 23rd October following, in the eightieth year of his age; and was buried in Inveresk churchyard. He married, on 14th October, 1761, Margaret, daughter of John Stuart of Blairhall, Perthshire, by whom he had two sons. Eskgrove resided for many years in No. 8 St. John Street, Edinburgh.

“A more ludicrous personage,” says Cockburn, “could not exist. To be able to give an anecdote of Eskgrove, with a proper imitation of his voice and manner, was a sort of fortune in society. Scott in those days was famous for this particularly. Yet never once did he do or say anything which had the slightest claim to be remembered for any intrinsic merit. The value of all his words and actions consisted in their absurdity” (“Memorials,” pp. 118-119). In the trial of Glengarry for murder in a duel, a lady of great beauty was called as a witness. She came into Court veiled, but before administering the oath Eskgrove gave her this exposition of her duty--“Young woman! you will now consider yourself as in the presence of Almighty God and of this High Court. Lift up your veil, throw off all modesty, and look me in the face” (_ib._ p. 122). Cockburn also narrates that, having to condemn certain prisoners who had broken into the house of Luss and assaulted and robbed the inmates, Eskgrove first, as was his almost constant practice, explained the nature of the various crimes, assault, robbery, and hamesucken--of which last he gave them the etymology; he next reminded them that they had attacked the house and the persons within it, and robbed them, and then came to his climax--“All this you did, and God preserve us! joost when they were sitten doon tae their denner!” (_ib._ pp. 124-125). Cockburn tells many other anecdotes of him, too numerous for quotation here; but it would be difficult to omit the following:--On condemning a tailor to death for stabbing a soldier, the learned judge aggravated the offence thus--“And not only did you murder him, whereby he was bereaved of his life, but you did thrust, or push, or pierce, or project, or propel, the lethal weapon through the bellyband of his regimental breeches, which were His Majesty’s!” (_ib._ p. 122).

Lockhart states that, in Scott’s young days at the bar, he was counsel for the appellant in a case before Eskgrove concerning a cow which his client had sold as sound. In opening his case Scott stoutly maintained the healthiness of the animal, which, he said, had merely a cough. “Stop there,” quoth the judge; “I have had plenty healthy kye in my time, but I never heard o’ ane o’ them coughin’. A coughin’ cow! that will never do--sustain the Sheriff’s judgment, and decern!” (“Life of Scott,” 1839, vol. i., p. 299).

A felicitous parody of Eskgrove’s judicial manner is contained in the well-known “Advising” in the Diamond Beetle case (“Court of Session Garland,” 1839, pp. 75-77). Notwithstanding, however, his many eccentricities, he was a man of the highest integrity of character, and “cunning in old Scots law.”

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JOHN CAMPBELL, Lord Stonefield (died 1801), son of Archibald Campbell of Stonefield, advocate, was admitted a member of the Faculty of Advocates on 9th January, 1748. He was subsequently appointed Sheriff of Argyll, an office which he long filled with the highest credit. On the death of Charles Erskine of Tinwald he was elevated to the bench, and took his seat, with the judicial title of Lord Stonefield, on 16th June, 1763. On the resignation of Francis Garden of Gardenstone, he was also nominated a Lord of Justiciary on 1st March, 1787. He resigned the latter appointment in the year 1792, but retained his seat on the bench till his death, which occurred at his residence in George Square, Edinburgh, on the 19th of June, 1801, after having been for thirty-nine years a judge of the Supreme Court.

It is somewhat remarkable that Stonefield and his two immediate predecessors occupied the same seat on the bench for a period of ninety years, Lord Royston having been appointed a judge in 1710, and Lord Tinwald in 1744.

Stonefield resided at one time in Elphinston’s Court, and latterly at No. 33 George Square, Edinburgh. Of his professional history no record has been preserved. As a scholar his attainments were considerable, and as a judge his decisions were marked by conciseness of expression and soundness of judgment. He was a zealous and liberal supporter of every scheme tending to promote the welfare and improvement of his native country.

By his wife, Lady Grace Stuart, daughter of James, second Earl of Bute, and sister of the Prime Minister, John (the third earl). Stonefield had seven sons, all of whom predeceased him. The second of these was Lieutenant-Colonel John Campbell, whose memorable defence of Mangalore, from May, 1783, to January, 1784, arrested the victorious career of Tippoo Sultan, and shed a lustre over the close of that calamitous war.

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JOHN SWINTON, Lord Swinton (died 1799), son of John Swinton of Swinton, Berwickshire, advocate, by his wife Mary, daughter of Samuel Semple, minister of Liberton. He was admitted advocate on 20th December, 1743, and appointed Sheriff-depute of Perthshire in June, 1754. In April, 1766, he became solicitor for renewal of leases of the Bishops’ tithes, and solicitor and advocate to the Commissioners for Plantation of Kirks in Scotland, in place of James Montgomery, promoted to be Lord Advocate. He was elevated to the bench, with the title of Lord Swinton, on 21st December, 1782, on the death of Alexander Lockhart of Covington, and, on the promotion of Robert Macqueen of Braxfield in 1788, was also made a Lord of Justiciary. He retained both appointments till his death.

He died at his residence, Dean House, Edinburgh, on 5th January, 1799. Swinton married Margaret, daughter of John Mitchelson of Middleton, by whom he had six sons and seven daughters.

Swinton was the author of the following works:--(1) “Abridgment of the Public Statutes Relative to Scotland, &c., from the Union to the 27th of George II.,” 2 vols., 1755; “to the 29th of George III.,” 3 vols., 1788-90. (2) “Free Disquisition Concerning the Law of Entails in Scotland,” 1765. (3) “Proposal for Uniformity of Weights and Measures in Scotland,” 1779. (4) “Considerations Concerning a Proposal for Dividing the Court of Session into Classes or Chambers, and for Limiting Litigation in Small Causes, and for the Revival of Jury Trial in certain Civil Actions,” 1789.

Lord Cockburn, in his “Memorials of his Time” (1856, pp. 112-113), remarks--“These improvements have since taken place but they were mere visions in his time, and his anticipation or them, in which, so far as I ever heard, he had no associate, is very honourable to his thoughtfulness and judgment.” Cockburn also observes of Swinton--“He was a very excellent person; dull, mild, solid, and plodding; and in his person large and heavy. It is only a subsequent age that has discovered his having possessed a degree of sagacity for which he did not get credit while he lived. Notwithstanding the utter dissimilarity of the two men, there was a great friendship between him and Henry Erskine which it is to the honour of Swinton’s ponderous placidity that Erskine’s endless jokes upon him never disturbed.”

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SIR ILAY CAMPBELL, Baronet, Lord Succoth (1734-1823), was born on 23rd August, 1734. He was the eldest son of Archibald Campbell of Succoth, W.S., by his wife, Helen, only daughter of John Wallace of Ellerslie, Renfrewshire, and was admitted an advocate on 11th January, 1757. He soon obtained an extensive practice at the bar, and was one of the counsel for the appellant in the Douglas cause. During his last fifteen years at the bar his practice had become so great that there was scarcely any case of importance in which he was not engaged or consulted. In 1783 he was appointed Solicitor-General, in succession to Alexander Murray of Henderland, who was raised to the bench on 6th March of that year, but upon the accession of the Coalition Ministry he was dismissed, and Alexander Wight appointed in his place. Upon the fall of the Ministry he succeeded the Hon. Henry Erskine as Lord Advocate, and in the month of April, 1784, was elected to represent the Glasgow District of Burghs in Parliament, where he took an active share in all the important transactions of the time. The University of Glasgow conferred on him the degree of Doctor of Laws in 1784, and from 1790 to 1801 he held the office of Lord Rector.

After acting as Lord Advocate for nearly six years, on 14th November, 1789, Campbell was appointed President of the Court of Session on the death of Sir Thomas Miller, Bart., and assumed the judicial title of Lord Succoth. He was placed at the head of the Commission of Oyer and Terminer, issued in the year 1794, for the trial of those accused of high treason in Scotland at that disturbed period, and was highly commended by English lawyers for the manner in which he acquitted himself in that capacity.

Campbell held the office of Lord President for nineteen years, and upon his resignation was succeeded by Robert Blair of Avonton. He presided for the last time on 11th July, 1808, being the final occasion on which the old Court of Session, consisting of fifteen judges, sat together. After the vacation, the Court sat for the first time in two Divisions. On 17th September, in the same year, he was created a baronet. He died on 28th March, 1823, in the eighty-ninth year of his age.

Campbell was an able lawyer, but without any great forensic gifts. His written pleadings were models of perspicuity, force, and eloquence, but his speeches though admirable in matter, were unattractive in delivery. Cockburn says of him, “His voice was low and dull, his face sedate and hard. Even when heaving internally with strong passion, externally he was like a knot of wood” (“Memorials of his Time,” 1856, p. 127). He was inferior to none of his brethren in depth of learning, and in private life was highly esteemed.

After his retirement from the bench, Campbell presided over two different Commissions appointed to inquire into the state of the Courts of law in Scotland, which he conducted with his accustomed industry and talent. He lived for many years in James’s Court, Edinburgh; but during the later years or his life he chiefly resided at his paternal estate of Garscube, Dumbartonshire, where he kept his active mind continually engaged in various literary and agricultural pursuits.

Campbell was married to Susan Mary, daughter of Archibald Murray of Cringletie, one of the Commissaries of Edinburgh, by whom he had six daughters and two sons, one of whom only survived, viz., Sir Archibald Campbell of Succoth, Bart., who was appointed one of the Senators of the College of Justice on 17th May, 1809. He retired in 1825.

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ROBERT DUNDAS of Arniston, Lord Chief Baron of the Court of Exchequer (1758-1819), the eldest son of Robert Dundas of Arniston the younger (1713-1787), Lord President of the Court of Session, was born on 6th June, 1758. He was a nephew of the celebrated Henry Dundas, Viscount Melville and Baron Dunira, whose daughter he afterwards married. He was educated for the legal profession, and became a member of the Faculty of Advocates on 3rd July, 1779, immediately after which he was appointed Procurator for the Church of Scotland. On the promotion of Sir Ilay Campbell to the office of Lord Advocate in April, 1784, Dundas, then a very young man, succeeded him as Solicitor-General; and on the elevation of the former to the bench as Lord President in November, 1789, the latter was appointed to supply his place as Lord Advocate, being then only in the thirty-first year of his age.

This office Dundas held for twelve years, during which time he sat in Parliament as a member for the county of Edinburgh (1790-6). He introduced into Parliament in 1793 a bill for defining and regulating the powers of the Commission of Teinds; but, from the little countenance extended towards it by the Ministry, and the strong opposition of the landed proprietors, he was under the necessity of withdrawing the measure.

Dundas conducted for the Crown, as Lord Advocate, the great prosecutions for sedition at Edinburgh in 1793-4; and on the occasion of the riots in connection with the Scottish Burghs Reform the windows of his house were broken by a hostile mob (“Kay’s Portraits,” 1877, vol. i., pp. 374-5). He acted as Dean of the Faculty of Advocates from 1796 to 1801; and, in 1799, was appointed Joint-Keeper of the General Register of Sasines for Scotland.

On 1st June, 1801, Dundas was appointed Chief Baron of the Exchequer in Scotland, on the resignation of Chief Baron Montgomery. He held this office till within a short time of his death, which happened at Arniston on 17th June, 1819, in the sixty-second year of his age. His town residence was in St. John Street, Canongate.

The excellences which marked the character of Dundas were many, and all of the most amiable and endearing kind. In manner he was mild and affable, in disposition humane and generous, and in principle singularly tolerant and liberal--qualities which gained him universal esteem. As presiding judge of the Court of Exchequer, he on every occasion evinced a desire to soften the rigour of the law when a legitimate opportunity presented itself for so doing. If it appeared to him that an offender had erred unknowingly or from inadvertence, he invariably interposed his good offices to mitigate the sentence. “It was in his private life, however,” says his biographer, “and within the circle of his own family and friends, that the virtues of this excellent man were chiefly conspicuous, and that his loss was most severely felt. Of him it may be said he died leaving no good man his enemy, and attended with that sincere regret which only those can hope for who have occupied the like important stations and acquitted themselves as well.”

Dundas was one of the few individuals who were spoken favourably of by the Rev. William Auriol Hay Drummond in his “Town Eclogue” (Edinburgh, 1804)--

“Let justice veil her venerable head, When dulness sits aloft in robes of red! Though with delight we upright Cockburn see, With courteous Cullen, deep-read Woodhouselee; In the Chief Baron’s bland, ingenuous face, Read all the worth and talent of his race.”