The answers were drawn by quondam Mess John;[17]
He united with such art our law the civil,
That the counsel, on both sides, would have seen him to the devil.
The cause being called, my Lord Justice-Clerk,[18]
With all due respect, began a loud bark;
He appeal'd to his conscience, his heart, and from thence,
Concluded to alter, but give no expence.
Lord Stonefield,[19] unwilling his judgment to podder,
Or to be precipitate agreed with his brother;
But Monboddo[20] was clear the bill to enforce,
Because, he observed, 'twas the price of a horse.
Says Pitfour[21] with a wink and his hat all agee,
I remember a case in the year twenty-three,
The magistrates of Banff contra Robert Carr,
I remember well, 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[22] also quoted the case of one Lithgow
Where a penalty in a bill was held _pro non scripto_.
Lord President brought his chair to the plum,
Laid hold of the bench and brought forward his bum;
In these answers, my Lords, some freedoms have been used,
Which I could point out, provided I chus'd.
I was for this interlocutor, my Lords, I admit,
But am open to conviction as long's I here do sit;
To oppose your precedents I quote you some clauses,
But Tait[23] _a priori_ hurried up the causes.
He prov'd it as clear as the sun in the sky
That the 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 carried to alter by a casting vote:
Baillie then mov'd.--In the bill there's a raze,
But by that time their Lordships had called a new case.
FOOTNOTES:
[1] Wight: a well-known advocate of the period.
[2] Baillie: Lord Palkemmet.
[3] Afterwards Lord Eskgrove.
[4] The father of James Boswell.
[5] Afterwards Lord Braxfield.
[6] Lord Covington.
[7] Andrew Pringle.
[8] Henry Home, who was notorious for the use of the epithet in the
text.
[9] Sir David Dalrymple, author of the _Annals of Scotland_.
[10] George Brown of Coalston.
[11] Alexander Fraser of Strichen.
[12] James Erskine, who changed his title to Lord Alva.
[13] James Veitch.
[14] Francis Garden, who founded the town of Laurencekirk in
Kincardineshire.
[15] Robert Dundas, first Lord President of that name.
[16] Henry, first Viscount Melville, the friend of Pitt.
[17] A nickname for John Erskine of Carnoch.
[18] Sir Thomas Miller of Glenlee.
[19] John Campbell, raised to the Bench in 1796.
[20] Jas. Burnet of Monboddo, who had a theory that human beings
were born with tails.
[21] James Ferguson of Pitfour. Owing to weak eyesight he wore his
hat on the Bench.
[22] Robert Bruce of Kennet.
[23] Clerk of Session.
It was the first Lord Meadowbank, who wearying of the dry statement of a
case made by Mr. Thomas W. Blair, broke in with the remark: "Declaim,
sir! why don't you declaim? Speak to me as if I were a popular
assembly."
In the reign of Queen Anne there was an old Scottish judge--Lord
Dun--who was particularly distinguished for his piety. Thomas Coutts,
the founder of the bank now so well known, used to relate of him that
when a difficult case came before him, as Lord Ordinary, he used to say,
"Eh, Lord, what am I to do? Eh, sirs, I wish you would make it up!" Of
another judge of much the same period, also noted for his strict
observance of religious ordinances; but who, at the same time, did not
allow these to interfere with his social habits, it is related that
every Saturday evening he had with him his niece, who afterwards married
a more famous Scottish judge, Andrew Fletcher, Lord Milton, Charles Ross
who made himself prominent in the "45" Rebellion, and David Reid, his
clerk. The judge had what was, and in some parts of Scotland still is,
known as "the exercise," which consisted of the reading of a chapter
from the Bible, and his form of announcing the evening devotions was:
"Betsy (his niece), ye hae a sweet voice, lift ye up a psalm; Charles,
ye hae a gey strong voice, read the chapter; and David, fire ye the
plate." Firing the plate consisted of a dish of brandy prepared for the
company, of which David took charge, and while the first part of the
proceedings were in progress David lighted the brandy, which when he
thought it burnt to his master's taste he blew out, and this was the
signal for the others to stop, while the whole company partook of the
burnt brandy. This same judge--Lord Forglen--was walking one day with
Lord Newhall, in the latter's grounds. Lord Newhall was a grave and
austere man, while, as may be gathered, Lord Forglen was a medley of
curious elements. As they passed a picturesque bend of a river Lord
Forglen exclaimed: "Now, my lord, this is a fine walk. If ye want to
pray to God, can there be a better place? If ye want to kiss a bonny
lass, can there be a better place?"
[Illustration: SIR DAVID RAE, LORD ESKGROVE.]
Sir David Rae (Lord Eskgrove), Lord Justice-Clerk of Scotland, has been
described as a ludicrous person about whom people seemed to have nothing
else to do but tell stories. Sir Walter Scott imitated perfectly his
slow manner of speech and peculiar pronunciation, which always put an
accent on the last syllable of a word, and the letter "g" when at the
end of a word got its full value. When a knot of young advocates was
seen standing round the fireplace of the Parliament Hall listening to a
low muttering voice, and the party suddenly broke up in roars of
laughter, it was pretty certain to be a select company to whom Sir
Walter had been retailing one of the latest stories of Lord Eskgrove.
He was a man of much self-importance, which comes out in his remarks to
a young lady of great beauty who was called as a witness in the trial of
Glengarry for murder. "Young woman, you will now consider yourself as in
the presence of Almighty God, and of this Court; lift up your veil,
throw off all modesty, and look _me_ in the face."
Sir John Henderson of Fordell, a zealous Whig, had long nauseated the
Scottish Civil Courts by his burgh politics. Their lordships of the
Bench had once to fix the amount of some discretionary penalty that he
had incurred. Lord Eskgrove began to give his opinion in a very low
voice, but loud enough to be heard by those next him, to the effect that
the fine ought to be £50, when Sir John, with his usual imprudence,
interrupted him and begged him to raise his voice, adding that if judges
did not speak so as to be heard they might as well not speak at all.
Lord Eskgrove, who could never endure any imputation of bodily
infirmity, asked his neighbour, "What does the fellow say?"--"He says,
that if you don't speak out, you may as well hold your tongue."--"Oh, is
that what he says? My lords, what I was saying was very simpell; I was
only sayingg, that in my humbell opinyon this fine could not be less
than £250 sterlingg"--this sum being roared out as loudly as his old
angry voice could launch it.
A common saying of his to juries was: "And now, gentle-men, having shown
you that the panell's argument is impossibill, I shall now proceed to
show you that it is extremely improbabill."
In condemning some persons to death for breaking into Sir John
Colquhoun's house and assaulting him and others, as well as robbing
them, Eskgrove, after enumerating minutely the details of their crime,
closed his address to the prisoners with this climax: "All this you did;
and God preserve us! juist when they were sitten doon tae their denner."
When condemning a tailor convicted of stabbing a soldier, the offence
was aggravated in Lord Eskgrove's eyes by the fact that "not only did
you murder him, whereby he was berea-ved of his life, but you did
thrust, or push, or pierce, or project, or propell, the le-thall weapon
through the belly-band of his regimental breeches, which were his
Majesty's."
One of the most biting of caustic jests made by a judge of the old Court
of Session of Scotland, before its reconstruction at the beginning of
the nineteenth century, was uttered during the hearing of a claim to a
peerage. The claimant was obviously resting his case upon forged
documents, and the judge suddenly remarked in the broad dialect of the
time, "If ye persevere ye'll nae doot be a peer, but it will be a peer
o' anither tree!" The claimant did not appreciate this idea of being
grafted, and abandoned the case.
* * * * *
To return to the stories of the earlier period of the eighteenth
century, there is one told of Lord Halkerston. He was waited on by a
tenant, who with a woeful countenance informed his lordship that one of
his cows had gored a cow belonging to the judge, and he feared the
injured animal could not live. "Well, then, of course you must pay for
it," said his lordship. "Indeed, my lord, it was not my fault, and you
know I am but a very poor man."--"I can't help that. The law says you
must pay for it. I am not to lose my cow, am I?"--"Well, my lord, if it
must be so, I cannot say more. But I forgot what I was saying. It was my
mistake entirely. I should have said that it was your lordship's cow
that gored mine."--"Oh, is that it? That's quite a different affair. Go
along, and don't trouble me just now. I am very busy. Be off, I say!"
And there is one of the testy old Lord Polkemmet when he interrupted Mr.
James Ferguson, afterwards Lord Kilkerran, whose energy in enforcing a
point in his address to the Bench took the form of beating violently on
the table: "Maister Jemmy, dinna dunt; ye may think ye're dunting it
_intill me_, but ye're juist _dunting it oot o' me_, man."
He was reputed to be dull, and rarely decided a case upon the first
hearing. On one occasion, after having heard counsel, among whom was the
Hon. Henry Erskine, John Clerk, and others, in a cause of no great
difficulty, he addressed the Bar: "Well, Maister Erskine, I heard you,
and I thocht ye were richt; syne I heard you, Dauvid, and I thocht ye
were richt; and noo I hae heard Maister Clerk, and I think he's richtest
amang ye a'. That bauthers me, ye see! Sae I man een tak' hame the
process an' wimble-wamble it i' ma wame a wee ower ma toddy, and syne
ye'se hae ma interlocutor."
"The Fifteen," as the full Bench of the old Court of Session of Scotland
was popularly called, were deliberating on a bill of suspension and
interdict relative to certain caravans with wild beasts on the then
vacant ground which formed the beginning of the new communication with
the new Town of Edinburgh spreading westwards and the Lawnmarket--now
known as the Mound. In the course of the proceedings Lord Bannatyne fell
fast asleep. The case was disposed of and the next called, which related
to a right of lien over certain goods. The learned lord who continued
dozing having heard the word "lien" pronounced with an emphatic accent
by Lord Meadowbank, raised the following discussion:
Meadowbank: "I am very clear that there was a lien on this property."
Bannatyne: "Certain; but it ought to be chained, because----"
Balmuto: "My lord, it's no a livin' lion, it's the Latin word for lien"
(leen).
Hermand: "No, sir; the word is French."
Balmuto: "I thought it was Latin, for it's in italics."
* * * * *
[Illustration: HENRY HOME, LORD KAMES.]
Henry Home (Lord Kames) was at once one of the most enlightened and
learned of Scottish judges of the latter half of the eighteenth century,
and one of the most eccentric. His _History of Mankind_ brought him into
correspondence with most of the famous men and women of his day, and yet
it was his delight to walk up the Canongate and High Street with a
half-witted creature who made it his business to collect all the gossip
of the town and retail it to his lordship as he made his way to Court in
the morning. His humour was very sarcastic, and nothing delighted him
more than to observe that it cut home. Leaving the Court one day shortly
before his death he met James Boswell, and accosted him with, "Well,
Boswell, I shall be meeting your old father one of these days, what
shall I say to him how you are getting on now?" Boswell disdained to
reply. After a witness in a capital trial at Perth Circuit concluded his
evidence, Lord Kames said to him, "Sir, I have one question more to ask
you, and remember you are on your oath. You say you are from
Brechin?"--"Yes, my lord."--"When do you return thither?"--"To-morrow,
my lord."--"Do you know Colin Gillies?"--"Yes, my lord; I know him very
well."--"Then tell him that I shall breakfast with him on Tuesday
morning."
Lord Kames used to relate a story of a man who claimed the honour of his
acquaintance on rather singular grounds. His lordship, when one of the
justiciary judges, returning from the North Circuit to Perth, happened
one night to sleep at Dunkeld. The next morning, walking towards the
ferry, but apprehending he had missed his way, he asked a man whom he
met to conduct him. The other answered, with much cordiality, "That I
will do with all my heart, my lord. Does not your lordship remember me?
My name's John ----. I have had the _honour_ to be before your lordship
for stealing sheep!"--"Oh, John, I remember you well; and how is your
wife? She had the honour to be before me too, for receiving them,
knowing them to be stolen."--"At your lordship's service. We were very
lucky; we got off for want of evidence; and I am still going on in the
butcher trade."--"Then," replied his lordship, "we may have the honour
of meeting again."
Once when on Circuit his lordship had been dozing on the bench, a noise
created by the entrance of a new panel woke him, and he inquired what
the matter was. "Oh, it's a woman, my lord, accused of child
murder."--"And a weel farred b--h too," muttered his lordship, loud
enough to be heard by those present.
* * * * *
[Illustration: JOHN CLERK, LORD ELDIN.]
John Clerk (Lord Eldin) was one of the best-known advocates at the
Scottish Bar in the first quarter of the nineteenth century, and
probably the last of them to retain the old Scots style of
pronunciation. His voice was loud and his manner brow-beating, from
which the Bench suffered equally with his brother members of the Bar. He
suffered from a lameness in one leg, which was made the subject of a
passing remark by two young women in the High Street of Edinburgh one
day as Clerk was making his way to Court. "There goes John Clerk the
lame lawyer," said one to the other. Clerk overheard the remark, and
turning back addressed the speaker: "The lame man, my good woman, not
the lame lawyer."
The stories of his advocate days are numerous, and many of them probably
well known. In his retention of old Scots pronunciation he got the
better of Lord Eldon when pleading before the House of Lords one day.
"That's the whole thing in plain English, ma lords," he said. "In plain
Scotch, you mean, Mr. Clerk."--"Nae maitter, in plain common sense, ma
lords, and that's the same in a' languages." On another occasion before
the same tribunal he had frequently referred to water, pronouncing it
"watter," when he was interrupted by the inquiry, "Do you spell water
with two t's in the north, Mr. Clerk?"--"No, my lord, but we spell
mainners wi' twa n's." And there is the well-known one of his use of the
word "enough," which in old Scots was pronounced "enow." His repetition
of the word in the latter form drew from the Lord Chancellor the remark
that at the English Courts the word was pronounced "enough." "Very well,
my lord," replied Clerk, and he proceeded with his address till coming
to describe his client, who was a ploughman, and his client's claim, he
went on: "My lords, my client is a pluffman, who pluffs a pluff gang o'
land in the parish of," &c. "Oh! just go on with your own pronunciation,
Mr. Clerk," remarked the Lord Chancellor.
His encounters with members of the Scottish Bench were of a more
personal character. Indeed, for years he appears to have held most of
them in unfeigned contempt. A junior counsel on hearing their lordships
give judgment against his client exclaimed that he was surprised at such
a decision. This was construed into contempt of Court, and he was
ordered to attend at the Bar next morning. Fearing the consequences of
his rash remark, he consulted John Clerk, who offered to apologise for
him in a way that would avert any unpleasant result. Accordingly, when
the name of the delinquent was called, John Clerk rose and addressed the
Bench: "I am sorry, my lords, that my young friend so far forgot
himself as to treat your lordships with disrespect. He is extremely
penitent, and you will kindly ascribe his unintentional insult to his
ignorance. You will see at once that it did not originate in that: he
said he was surprised at the decision of your lordships. Now, if he had
not been very ignorant of what takes place in this Court every day; had
he known your lordships but half so long as I have done, he would not be
surprised at anything you did."
Two judges, father and son, sat on the Scottish Bench, in succession,
under the title of Lord Meadowbank. The second Lord Meadowbank was by no
means such a powerful judge as his father. In his Court, Clerk was
pressing his construction of some words in a conveyance, and contrasting
the use of the word "also" with the use of the word "likewise."
"Surely, Mr. Clerk," said his lordship, "you cannot seriously argue that
'also' means anything different from 'likewise'! They mean precisely the
same thing; and it matters not which of them is preferred."--"Not at
all, my lord; there is all the difference in the world between these two
words. Let us take an instance: your worthy father was a judge on that
Bench; your lordship is 'also' a judge on the same Bench; but it does
not follow that you are a judge 'like wise.'"
When Meadowbank was about to be raised to the Bench he consulted John
Clerk about the title he should adopt. Clerk's suggestion was "Lord
Preserve Us." The legal acquirements of James Wolfe Murray were not held
in high esteem by his brethren of the Bar, and when he became a judge
with the title of Lord Cringletie, Clerk wrote the following clever
epigram:
"Necessity and Cringletie
Are fitted to a tittle;
Necessity has nae law,
And Cringletie as little."
The only man on the Bench for whom John Clerk retained a respectfulness
not generally exhibited to others in that position was Lord President
Blair. After hearing the President overturn without any effort an
argument he had laboriously built up, and which appeared to be regarded
as unsurmountable by the audience who heard it, Clerk sat still for a
few moments, then as he rose to leave the Court he was heard to say: "My
man, God Almighty spared nae pains when He made your brains."
When he ascended the Bench in his sixty-fifth year, and when his
physical powers were declining, he received the congratulations of his
brother judges, one of whom expressed surprise that he had waited so
long for the distinction. "Well, you see, I did not get 'doited' just as
soon as the rest of you," replied the new-made judge.
Like the generation preceding his, Clerk was of a very convivial
disposition. Of him the story is told that one Sunday morning, while
people were making their way to church, he appeared at his door in York
Place in his dressing-gown and cowl, with a lighted candle in his hand,
showing out two friends who had been carousing with him, and in the firm
belief that it was about midnight instead of next mid-day. At the
termination of a Bannatyne Club dinner, where wit and wine had contended
for the mastery, the excited judge on the way to his carriage tumbled
downstairs and, _miserabile dictu_, broke his nose, an accident which
compelled him to confine himself to the house for some time. He
reappeared, however, with a large patch on his olfactory member, which
gave a most ludicrous expression to his face. On someone inquiring how
this happened, he said it was the effect of his studies. "Studies!"
ejaculated the inquirer. "Yes," growled the judge; "ye've heard, nae
doot, about _Coke upon Littleton_, but I suppose you never before heard
of _Clerk upon Stair_!"
When asked by a friend what was the difference between him and Lord
Eldon, the Lord Chancellor of England, Eldin replied; "Oh, there's only
an 'i' of a difference."
* * * * *
[Illustration: CHARLES HAY, LORD NEWTON.]
Charles Hay (Lord Newton), known in private life as "The Mighty," has
been described by Lord Cockburn as "famous for law, paunch, whist,
claret, and worth." His indulgence in wine and his great bulk made him
slumbrous, and when sitting in Court after getting the gist of a case he
almost invariably fell fast asleep. Yet it is strange to find it
recorded that whenever anything pertinent to the matter under discussion
was said he was immediately wide awake and in full possession of his
reasoning faculties. While a very zealous but inexperienced counsel was
pleading before him, his lordship had been dozing, as usual, for some
time, till at last the young man, supposing him asleep, and confident of
a favourable judgment in his case, stopped short in his pleading and,
addressing the other judges on the Bench, said: "My lords, it is
unnecessary that I should go on, as Lord Newton is fast asleep."--"Ay,
ay," cried Lord Newton, "you will have proof of that by and by"--when,
to the astonishment of the young advocate, after a most luminous view of
the case, he gave a very decided and elaborate judgment against him.
Lord Jeffrey himself declared that he only went to Oxford to improve his
accent, and according to some of the older members of the Bar of his
days, he only lost his Scots accent and did not learn the English. A
story of his early days at the Bar is related to the effect that when
pleading before Lord Newton the judge stopped him and asked in broad
Scots, "Whaur were ye educat', Maister Jawfrey."--"Oxford, my
lord."--"Then I doot ye maun gang back there again, for we can mak'
nocht o' ye here." But Mr. Jeffrey got back his own. For, before the
same judge, happening to speak of an "itinerant violinist," Lord Newton
inquired: "D'ye mean a blin' fiddler?"--"Vulgarly so called, my lord,"
was the reply.
* * * * *
[Illustration: HENRY COCKBURN, LORD COCKBURN.]