Part 25

Lord Cockburn, who knew him well, gives an interesting account of Dundas in his “Memorials of his Time” (1856, pp. 156-159).

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WILLIAM TAIT, advocate (died 1800), was the second son of Alexander Tait, one of the principal Clerks of Session, who is referred to in “The Court of Session Garland” (1839, p. 50). He was admitted to Lincoln’s Inn on 4th June, 1777, and became a member of the Faculty of Advocates on 19th February, 1780. He acted as Sheriff-depute of Stirling and Clackmannan from 1790 to 1797, and was member of Parliament for the Stirling District of Burghs from 3rd May, 1797, to 24th February, 1800. He died at Exeter on 7th January, 1800.

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JAMES WOLFE MURRAY, Lord Cringletie (1759-1836), was the second son of Lieutenant-Colonel Alexander Murray of Cringletie, who had the honour to command the Grenadiers at the sieges of Louisburg and Quebec, and who died at Martinique in 1762. He was born on 5th January, 1719, and was named after General Wolfe, whose godson he was. He became a member of the Faculty of Advocates on 7th December, 1782, and was subsequently appointed Judge-Admiral. He was elevated to the bench on the death of Lord Meadowbank, and took his seat on 16th November, 1816, with the judicial title of Lord Cringletie, which he assumed from the family estate in Peeblesshire. He was also appointed one of the Commissioners of the Jury Court on 12th November, 1825. He resigned his judicial offices in 1834, and died on 29th May, 1836, in the seventy-eighth year of his age.

Murray married, on 7th April, 1807, Isabella Katherine, only daughter of James Charles Edward Stuart Strange, H.E.I.C.S., a godson of Prince Charles Edward Stuart, by whom he had four sons and nine daughters. He resided at one time in No. 17 Charlotte Square, Edinburgh.

References are made to Cringletie by Sir Walter Scott in his “Journal” (1891, pp. 322, 546); and an entertaining _jeu d’esprit_ entitled “Notes by Lord Cringletie of the Trial, Douglas _against_ Russell,” will be found in “Appendix to the Court of Session Garland” (1839, pp. 7-14).

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HENRY ERSKINE (1746-1817), second son of Henry David tenth Earl of Buchan, by his wife, Agnes, daughter of Sir James Steuart of Goodtrees, Bart., and brother of the celebrated Thomas Erskine, Lord Chancellor, was born in South Gray’s Close, Edinburgh, on 1st November, 1746. After receiving some preliminary instruction at St. Andrews, he matriculated as a student of the United College of St. Salvator and St. Leonard on 20th February, 1760. In 1763 he proceeded to Glasgow University, and subsequently went to Edinburgh University, where, in 1766, he attended the classes of Professors Wallace, Hugh Blair, and Adam Ferguson. He was admitted a member of the Faculty of Advocates on 20th February, 1768. He had previously prepared himself for extempore speaking by attending the Forum Debating Society established in Edinburgh, in which he gave promise of that eminence as a pleader which he afterwards attained. His brilliant talents soon placed him at the head of his profession; and his legal services were as much at the command of the poor as of the wealthy. It was said of him that “no poor man wanted a friend while Harry Erskine lived.”

In August, 1783, Erskine was appointed Lord Advocate in the Coalition Ministry, in succession to Henry Dundas (afterwards Lord Melville). He held office only for a very short period in consequence of a sudden change of Ministry in December, 1783. Anticipating this, Dundas offered, on the day of his appointment, to lend him his own silk gown, suggesting it was hardly worthwhile buying a new one; Erskine replied that no doubt Dundas’s gown was made to fit any party, but that, however short his term of office might be, he declined to put on the abandoned habits of his predecessor. He was succeeded by Ilay Campbell (afterwards Lord President of the Court of Session).

On 24th December, 1785, Dundas having resigned the post of Dean of the Faculty of Advocates, Erskine was elected in his place by a decided majority, in spite of the influence of the Government, which was exerted against him. Lord Cockburn remarks, “His political opinions were those of the Whigs; but a conspicuous and inflexible adherence to their creed was combined with so much gentleness that it scarcely impaired his popularity. Even the old judges, in spite of their abhorrence of his party, smiled upon him; and the eyes of such juries as we then had, in the management of which he was agreeably despotic, brightened as he entered” (“Life of Lord Jeffrey,” 1852, vol. i., p. 93).

Erskine had been annually re-elected Dean of Faculty since 1785; but in consequence of his having presided at a public meeting, held in Edinburgh on 28th November, 1795, to petition against the war, his political adversaries determined to oppose his re-election; and at the meeting of the Faculty on 12th January, 1796, Robert Dundas of Arniston, then Lord Advocate, was chosen Dean. Lord Cockburn, commenting on this incident, observes--“This dismissal was perfectly natural at a time when all intemperance was natural. But it was the Faculty of Advocates alone that suffered. Erskine had long honoured his brethren by his character and reputation, and certainly he lost nothing by being removed from the official chair. It is to the honour of the society, however, that out of 161 who voted, there were 38 who stood true to justice, even in the midst of such a scene” (“Life of Jeffrey,” vol. i., p. 94).

On the death of Lord Eskgrove in October, 1804, Erskine was offered the office of Lord Clerk Register, but declined it, refusing to separate his fortunes from those of his party. On the return of the Whigs to power in 1806 he once more became Lord Advocate, and was at the same time returned member for the Dumfries District of Burghs. The downfall of the Ministry in March, 1807, however, again deprived him of office, and the dissolution in the following month put an end to his Parliamentary career.

In 1811 Lord Justice-Clerk Hope was, on the death of Lord President Blair in May of that year, appointed his successor. Erskine, who was fifteen years Hope’s senior at the bar, being disappointed of the preferment to which his professional standing and abilities entitled him, after a brilliant career extending over a period of forty-four years, retired from public life to his residence of Almond-dell in West Lothian, where he died on 8th October, 1817, in the seventy-first year of his age.

Erskine resided at one time in George Square, Edinburgh, next door to No. 25, where Scott’s father lived. He removed in 1789 to No. 27 Princes Street.

Lord Cockburn calls Erskine “the brightest luminary at our bar,” and adds, “His name can no sooner be mentioned than it suggests ideas of wit, with which, in many memories, the recollection of him is chiefly associated. A tall and slender figure, a face sparkling with vivacity, a clear, sweet voice, and a general suffusion of elegance, gave him a striking and pleasing appearance” (“Life of Jeffrey,” vol. i., p. 91).

Erskine was twice married; his first wife, Christian, was the only daughter of George Fullerton of Broughton Hall, by whom he had several children, one of whom, Henry David, succeeded to the Earldom of Buchan on the death of his uncle, David Steuart Erskine, eleventh earl, in 1829. By his second wife he had no children.

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ALEXANDER WIGHT, advocate (died 1793), was the son of David Wight, writer, Edinburgh. He was admitted a member of the Faculty of Advocates on 2nd March, 1754, and was subsequently appointed Solicitor-General to the Prince of Wales. He was vice-president of the Antiquarian Society, and was also a director of the Musical Society. He is said to have been long distinguished as an eminent counsel. He died at Edinburgh on 18th March, 1793.

Wight was well known as a legal writer, and was the author of “A Treatise on the Laws Concerning the Election of the Different Representatives sent from Scotland to the Parliament of Great Britain, with a Preliminary View of the Constitution of the Parliaments of England and Scotland before the Union of the two Kingdoms,” dedicated to Lord Mansfield (Edinburgh, 1773, 8vo); and also of “An Inquiry into the Rise and Progress of Parliament chiefly in Scotland, and a Complete System of the Law Concerning the Election of the Representatives from Scotland to the Parliament of Great Britain” (Edinburgh, 1784, fol.).

Cosmo Innes says of him--“If we did not know his unhappy end we should call Alexander Wight, the author of the ‘Law of Elections’ and ‘History of Parliament,’ the most sensible, dispassionate, and clear-headed of historical lawyers. He had great difficulties to contend with in writing too early for correct versions of our Acts of Parliament; and the curious charters appended to his volume lose much of their value by the extreme inaccuracy of the only readings which he could procure” (“Lectures on Scotch Legal Antiquities,” 1872, p. 11).

Wight is mentioned in “The Court of Session Garland” (1839, p. 47). It is recorded by Chambers in his “Traditions of Edinburgh” (1825, vol. ii., p. 159) that Wight was one of the earliest settlers in the New Town, where he built one of the houses on the south side of St. Andrew Square. He chose the situation of his new residence with a view to having the ancient part of the city still within sight, and especially St. Giles’ steeple and clock, which had for many centuries directed the motions of his legal predecessors. In order to prevent the intermediate line of Princes Street from interrupting his beloved prospect, he purchased the feu of the ground which immediately intervened, and erected that house now occupied by the Sun Insurance Office (No. 40 Princes Street) upon it with a flat and low roof.

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CHARLES HAY, Lord Newton (1747-1811), son of James Hay of Cocklaw, Writer to the Signet, was born in 1747. After the usual preparatory course of education, he passed as an advocate on 24th December, 1768, having just attained his majority; but, unlike most young practitioners, Hay had so thoroughly studied the principles of law that he was frequently heard to declare he was as good a lawyer at that time as he ever was at any later period. He soon became distinguished by his strong, natural abilities, as well as by his extensive knowledge of his profession, which embraced alike the minutest forms of the daily practice of the Court and the highest and most subtle points of jurisprudence. He was promoted by the Fox Administration to the bench on the death of David Smythe of Methven, and took his seat, with the judicial title of Lord Newton, on 7th March, 1806. This appointment was the only one which took place in the Court of Session during what was termed the reign of “The Talents”--a circumstance on which it is said he always professed to set a high value. Newton died unmarried at Powrie, in the county of Forfar, on the 19th of October, 1811.

Hay was, during the whole course of his life, a staunch Whig of the old school. Whilst at the bar his opinions were probably never surpassed for their acuteness, discrimination, and solidity; and as a judge he showed that all this was the result of such a rapid and easy application of the principles of law as appeared more like the effect of tuition than of study and laborious exertion.

Newton possessed an extraordinary fund of good humour, amounting almost to playfulness, and entirely devoid of vanity or affectation. There was a strong dash of eccentricity in his character, but his peculiarities appeared in the company of so many estimable qualities that they only tended to make him more interesting to his friends. He possessed great bodily strength and activity till the latter years of his life, when he became excessively corpulent.

Cockburn calls him “a man famous for law, paunch, whist, claret, and worth,” and adds, “In private life he was known as ‘The Mighty.’ He was a bulky man with short legs, twinkling eyes, and a large purple visage; no speaker, but an excellent legal writer and adviser. Honest, warm-hearted, and considerate, he was always true to his principles and his friends. But these and other good qualities were all apt to be lost sight of in people’s admiration of his drinking. His daily and flowing cup raised him far above the evil days of sobriety on which he had fallen, and made him worthy of having quaffed with the Scandinavian heroes” (“Memorials of his Time,” 1856, p. 223).

Many quaint anecdotes are told of him. On the bench he frequently indulged in a certain degree of lethargy, and on one occasion a young counsel, who was pleading before the Division, confident of a favourable judgment, stopped his argument, remarking to the other judges on the bench, “My Lords, it is unnecessary that I should go on, as Lord Newton is fast asleep.” “Ay, ay,” cried Newton, “you will have proof of that by and by,” when, to the astonishment of the young advocate, after a most luminous review of the case, he gave a very decided and elaborate judgment against him. The following story, says Chambers, was once told of Lord Newton by Dr. Gregory to King George the Third, who laughed at it very heartily. A country client coming to town to see him, when at the bar, upon some business, found on inquiry that the best time for the purpose was at four o’clock, just before Hay sat down to dinner. He accordingly called at the counsel’s house at that hour, but was informed that Mr. Hay was then at dinner, and could not be disturbed. He returned the following day earlier in the afternoon, when to his surprise the servant repeated his former statement. “At dinner!” cried the enraged applicant; “did you not tell me that four was his dinner-hour, and now it wants a quarter of it!” “Yes, sir,” said the servant, “but it is not his _this day’s_, but his _yesterday’s_ dinner that Mr. Hay is engaged with. So you are rather too early than too late” (“Traditions of Edinburgh,” 1825, vol. ii., pp. 276-277).

It is said that Newton often spent the night in all manner of convivial indulgences--drove home about seven o’clock in the morning--slept two hours--and mounting the bench at the usual time, showed himself perfectly well qualified to perform his duty. His Lordship was also so exceedingly fond of card-playing that it was humorously remarked, “Cards were his profession, and the law only his amusement.”

Newton resided for many years at No. 22 York Place, Edinburgh. His portrait by Raeburn--“just awakened from clandestine slumber on the bench,” as Stevenson describes it--is one of the most popular of that master’s works.

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JOHN CLERK, Lord Eldin (1757-1832), the eldest son of John Clerk of Eldin, the author of the well-known “Essay on Naval Tactics,” and his wife, Susannah Adam, the sister of the celebrated architects of that name, was born in April, 1757. He was educated with the view of entering the Indian Civil Service, but, his attention having been turned to the legal profession, he was eventually apprenticed to a Writer to the Signet. After serving his indentures, he practised for a year or two as an accountant. Then, having qualified himself for the bar, he was admitted a member of the Faculty of Advocates on 3rd December, 1785.

Clerk speedily rose to distinction in his profession and acquired so extensive a practice that, it is said, at one period of his career he had nearly one-half of the business of the Court upon his hands. On 11th March, 1806, on the resignation of Robert Blair of Avonton, he was appointed Solicitor-General for Scotland, an appointment which he held during the twelve months that the Whig party was in office.

“Had his judgment been equal to his talent,” writes Lord Cockburn, “few powerful men could have stood before him. For he had a strong, working, independent, ready head, which had been improved by various learning, extending beyond his profession into the fields of general literature, and into the arts of painting and sculpture. Honest, warm-hearted, generous, and simple, he was a steady friend, and of the most touching affection in all the domestic relations. The whole family was deeply marked by an hereditary caustic humour, and none of its members more than he” (“Life of Jeffrey,” vol. i., p. 200).

His practice at the bar had been for some time falling off, and his health had already begun to fail, when, on 10th November, 1823, Clerk was appointed an Ordinary Lord of Session in the place of Lord Bannatyne. Assuming the title of Lord Eldin, he took his seat on the bench on 22nd November. As a judge he was not a success; his temperament was not a judicial one, and his faculties at the date of his elevation were seriously impaired. In consequence of the infirmities of age, after five years of judicial work, he resigned in 1828, and was succeeded by Lord Fullerton. He died unmarried at his house, No. 16 Picardy Place, Edinburgh, on 30th May, 1832, in the seventy-sixth year of his age.

As a pleader Clerk was distinguished by strong sense, acuteness, and the most profound reasoning. Throughout his entire career at the bar he delighted in defying, ridiculing, and insulting the bench; and it is recorded that his whole session was one keen and truceless conflict with judicial authority. He was in the habit of saying whatever he liked to certain of the Outer House judges without reproof. Lord Craigie especially, it is said, suffered a species of torture from him that required great natural sweetness and kindness of disposition to endure. Clerk, however, did not come off so well with the Inner House judges. On one celebrated occasion, having used somewhat threatening language towards Lord Glenlee in the Second Division, he was reluctantly compelled by the Court to make an apology to the offended judge. An account of this remarkable scene will be found in the “Journal of Henry Cockburn” (1874, vol. ii., pp. 207-210).

In politics Clerk was a zealous Whig. He had a considerable taste for fine arts, occasionally amused himself in drawing, painting, and modelling, and had such an attachment to cats that his house could always boast of half-a-dozen feline indwellers. It is recorded that at the sale of his collection of paintings and prints, which took place at his house in Picardy Place after his decease, the floor of the drawing-room gave way, and about eighty persons--one of whom was killed--“were precipitated into the room below, to the destruction also of much valuable china and numerous articles of vertu there displayed.”

In appearance Clerk was singularly plain; he was also very lame, one of his legs being shorter than the other; and his inattention to dress was proverbial. It is related that when walking down the High Street one day from the Court he overheard a young lady saying to her companion rather loudly, “There goes Johnnie Clerk, the lame lawyer,” upon which he turned round and said, “Na, madam, I may be a lame man, but no’ a lame lawyer.”

Clerk was of a convivial disposition, and the contrast between the crabbed lawyer and the good-natured _bon vivant_ was strongly marked. He was a member of the Bannatyne Club, of which Sir Walter Scott was president. On one occasion, after the anniversary dinner, he is said to have fallen down-stairs and injured his nose, which necessitated his wearing a patch upon the organ for some time afterwards. On a learned friend inquiring how the accident happened, Clerk replied that it was the effect of his studies. “Studies!” ejaculated the inquirer. “Yes,” growled Clerk; “ye’ve heard, nae doot, about _Coke upon Littleton_, but I suppose ye never heard tell o’ _Clerk upon Stair_!”

An interesting account of Clerk’s striking personality is given by Lord Cockburn in his “Life of Lord Jeffrey” (1852, vol. i., pp. 199-205).

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ROBERT HAMILTON, advocate (1750-1831), son of Alexander Hamilton of Gilkerscleugh, Lanarkshire, distantly connected with the ducal house of Hamilton, was born about 1750. He entered the army, and was present at the Bunker’s Hill and other battles of the American War of Independence, where he fought gallantly, and was severely wounded. He afterwards studied law, and became a member of the Faculty of Advocates in 1788. He was appointed Sheriff-depute of Lanarkshire in 1797, and on his resignation of that office, in 1822, he was appointed, on 5th February of the same year, Principal Clerk in the First Division of the Court of Session. He married a daughter of David Dalrymple of Westhall, one of the Senators of the College of Justice. He died on 13th December, 1831.

Hamilton was an intimate friend of his colleague, Sir Walter Scott, who mentions him frequently in his “Journal” as being incapacitated by gout from attending to his professional duties. They were both Commissioners of the Northern Lights, and went together the voyage of inspection in 1814, described by Lockhart (“Life of Scott,” 1839, vol. iv., pp. 182 _et seq._). Hamilton is noted therein as good humoured, even when troubled with the gout; “a very Uncle Toby in military enthusiasm, and a brother antiquary of the genuine Monkbarns breed.” On his deathbed he gave Scott the sword he had carried at Bunker’s Hill.

Hamilton was well known as a legal writer and genealogist. He had the credit of being a good lawyer, and, it is said, “obtained much professional reputation for getting up the case for Hamilton of Wishaw, which carried the peerage of Belhaven before a Committee of Privileges. He also drew up the elaborate claim of Miss Lennox of Woodhead to the ancient earldom of Lennox, an interesting production, but based on a fallacy.”

APPENDIX III.

A LIST OF PUBLICATIONS ON THE SUBJECT OF OR HAVING REFERENCE TO THE TRIAL OF DEACON BRODIE.

1. An | Account of the Trial | of | William Brodie, and George Smith, | Before the High Court of Justiciary | on Wednesday, the 27th, and Thursday | The 28th days of August, 1788; | For Breaking Into, and Robbing, | The | General Excise Office of Scotland, | On the 5th Day of March last. | Illustrated with Notes and Anecdotes. | To which is added, | An Appendix, | Containing Several Curious Papers Relative | To the Trial. | By A Juryman. | “Read this and tremble! ye who ‘scape the laws.” Pope. | Edinburgh: | Printed for William Creech. M,DCC,LXXXVIII.

Quarto, pp. xii. + 125.

This, the first separate report of the trial, by William Creech, was published on 5th September, 1788, “handsomely printed in quarto, price 3_s_., stitched,” and contained three appendices. It was originally issued without the portrait of Deacon Brodie, but on 15th September was advertised for sale as “embellished with a full length portrait of Mr. Brodie by Kay, and reckoned a very striking likeness. Price, 3_s_. 6_d_., or without the engraving, 3_s_. _N.B._--The former purchasers of the above account of this singular trial will be accommodated with the print at 6_d_. each on sending their copies to Mr. Creech’s shop. A few copies of the print may be had separate from the trial at 1_s_. each.”

The advertisement adds--“A most shameful and mean piracy of the above account of the trial has appeared. This may, no doubt, in some degree be reckoned a compliment, as it is but fair to infer that when people are to pillage they naturally wish to take what they think most valuable; but such a breach of good manners and such a barefaced invasion of the right of another ought to be exposed. Application has this day been made to the Lord Ordinary to interdict the sale of this pirated edition.” This intimation has reference to the reports of the trial respectively published by Stewart and Robertson, as aftermentioned.