the nineteenth century (as in England and Ireland), occasions for a
great display in the county towns in which they were held. Whether the
judges had arrived on horseback or as later in their private carriages,
there was always the procession to the court-house, in which the
notabilities of the district took part. Lord Cockburn, who had no
sympathy with this part of a judge's duties, thus describes one of his
experiences in the early days of his Circuit journeys: "Yet there are
some of us who like the procession, though it can never be anything but
mean and ludicrous, and who fancy that a line of soldiers, or the more
civic array of paltry policemen, or of doited special constables,
protecting a couple of judges who flounder in awkward gowns and wigs
through ill-paved streets, followed by a few sneering advocates and
preceded by two or three sheriffs or their substitutes, with their
swords, which trip them, and a provost and some bailie-bodies trying to
look grand, the whole defended by a poor iron mace, and advancing each
with a different step, to the sound of two cracked trumpets, ill-blown
by a couple of drunken royal trumpeters, the spectators all laughing,
who fancy that all this pretence of greatness and reality of littleness
contributes to the dignity of judges." Things are changed now. Even Lord
Cockburn saw the change that the introduction of railways made in the
progress of Circuit work, and with them a lesser display and more
dignified opening of the courts of justice in local towns. But the older
Circuits were times of much feasting and merriment, in which the judges
of that period took their full share as well as the members of the Bar
accompanying them. In the eyes of some of these old worthies it was part
of the dignity of their position to sit down after Court work at two
o'clock in the morning to a collation of salmon and roast beef, and
drink bumpers of claret and mulled port with the provosts and other
local worthies, although they were due in Court that same morning at
nine to try some miserable creature for a serious crime. Lord Pitmilly
had no stomach for such proceedings, his inclination was stronger for
decorum and law than for revelling. Once at a Circuit town he ordered
his servant to bring to his room a kettle of hot water. Lord Hermand on
his way to dinner at midnight, meeting the servant, said, "God bless
me, is he going to make a whole kettle of punch--and before supper
too?"--"No, my lord, he's going to bed, but he wants to bathe his
feet."--"Feet, sir! what ails his feet? Tell him to put some rum among
it, and to give it all to his stomach."
* * * * *
The Circuit sermon was an important part of the duties to which the
judges had to attend in the course of their visits in the country. One
of these that Lord Cockburn had to listen to was delivered from the
text, "What are these that are arrayed in white robes, and whence came
they?" There was nothing personal intended, but the ermine on the judges
gowns naturally attracted significant glances from the other members of
the congregation. A Glasgow clergyman and friend of the judge, not
knowing that his lordship was present in his church, preached from the
text, "There was in a city a judge which feared not God, neither
regarded man." The announcement of the text directed all eyes towards
the learned judge, which attracting the preacher's attention nearly
prevented him from proceeding further with the service. The judge was
the pious Lord Moncreiff, the son of the Rev. Sir Henry Wellwood
Moncreiff, and the text stuck to him ever afterwards. But there seemed
to have been deliberation in selection of the text made by a
south-country minister who, before Lord Justice Boyle and Samuel
M'Cormick, Advocate-Depute, preached from I Samuel vii. 16, "And Samuel
went from year to year in circuit to Bethel, and Gilgal, and Mizpeh."
The two legal gentlemen took offence at this audacious attempt to
ridicule the Court, they identifying the places mentioned in the text as
representing their circuit towns of Jedburgh, Dumfries, and Ayr. In this
connection maybe told the story of Lord Hermand, beside whom stood the
clergyman whose duty it was to offer up the opening prayer before the
work of the Court began. He seemed to think the company had assembled
for no other purpose than to hear him perform, and after praying loud
and long his lordship's patience gave way, and with a decided jog of his
elbow he exclaimed in a stage whisper, "We've a lot of business to do,
sir."
* * * * *
From a somewhat rare volume printed for private circulation we are
permitted to quote the following ballad, the authorship of which may be
easily guessed, as the circuiteer who mourns the loss of his Circuit
days may be as easily identified.
THE EX-CIRCUITEER'S LAMENT
Ae morning at the dawning
I saw a Counsel yawning,
And heard him say, in accents that were anything but gay,
As sadly he was grinding
At a meikle multiplepoinding,--
The days o' my Circuits are a' fled away.
Nae banter frae Lord Deas,
Nae promises o' fees
That never will be paid afore the judgment-day,
Nae lies dubbed "information,"
From the worst rogues in the nation,--
The days o' my Circuits are a' fled away.
Nae haveral wutty witness,
Displaying his unfitness,
Tae see some sma' distinction 'tween a trial and a play,
Nae witness primed at lunch
Wi' perjuries and punch,--
The days o' my Circuits are a' fled away.
Nae laughing-gas orations,
Nae treading on the patience
Of Judges and of Juries, who will let you say your say,
Yet pay but sma' attention
To the gems of your invention,--
The days o' my Circuits are a' fled away.
Nae mair delightful wondering
At a new man blandly blundering,
Nae kind hints from the Court that he's gangin far astray,
Nae flowery depictions
In the teeth of ten convictions,--
The days o' my Circuits are a' fled away.
Nae whacking ten years' sentence,
Wi' advices o' repentance,
And learn in years of leisure to admire the "law's delay."
Nae fell female fury,
Blackguarding Judge and Jury,--
The days o' my Circuits are a' fled away.
Nay grey auld woman sobbing,
Nae mair you'll catch her robbing,
And a' the Christian virtues henceforth she will display,
If the Judge will but have mercy
(For the sixteenth time I daresay),--
The days o' my Circuits are a' fled away.
Nae processions, nae pageants,
Nae pawky country agents,
Nae macers, nae trumpeters, wi' tipsy blare and bray,
Nae Councillors or Bailie,
Or Provost smiling gaily,--
The days o' my Circuits are a' fled away.
Nae funny cross-examining,
Nae jurymen begammoning,
Nae laughter from the audience, nae gallery's hurrah,
Nae fleeching for acquittal,
Though you don't care a spittle,--
The days o' my Circuits are a' fled away.
Nae playing _hocus-pocus_
With the _tempus_ and the _locus_,
Nae pleas in mitigation (a kittle job are they),
Nae bonny rapes and reivings,
Nae forgeries and thievings,--
The days o' my Circuits are a' fled away.
Nae dinners wi' the Judges,
Nae drooning a' your grudges
In deep, deep draughts o' claret, and a' your senses tae,
Nae chatter wise or witty
On ticklish points o' dittay,--
The days o' my Circuits are a' fled away.
Nae high-jinks after dinner
Wi' ony madcap sinner,
Nae drinking whisky-toddy until the break o' day,
Nae speeches till a hiccup
Compels a sudden stick-up,--
The nichts o' my Circuits are a' fled away.
Lord Hermand's manner on the Bench conveyed the impression that he was
of an impatient, almost savage temper, but in his domestic circle he was
one of the warmest-hearted of men, and one with the simplest of tastes.
His outbursts on the Bench, too, were emphasised by what, in Scotland,
was called "Birr"--the emphatic energy of his pronunciation--which may
be imagined but cannot be transcribed in the following dialogue between
him and Lord Meadowbank.
Meadowbank: "We are bound to give judgment in terms of the statute, my
lords."
Hermand: "A statute! What's a statute? Words--mere words. And am _I_ to
be tied down by words? No, my laards; I go by the law of right reason."
He was a great friend of John Scott (Lord Eldon). In a case appealed to
the House of Lords, Scott had taken the trouble to write out his speech,
and read it over to Hermand, inviting his opinion of it. "It is
delightful--absolutely delightful. I could listen to it for ever," said
Hermand. "It is so beautifully written, and so beautifully read. But,
sir, it's the greatest nonsense! It may do very well for an English
Chancellor, but it would disgrace a clerk with us." The blunder that
drew forth this criticism was a gross one for a Scottish lawyer, but one
an English barrister might readily fall into.
It was put forward in mitigation of the crime that the prisoner was in
liquor when, either rashly or accidentally, he stabbed his friend. While
the other judges were in favour of a short sentence, Lord Hermand--who
had no sympathy with a man who could not carry his liquor--was vehement
for transportation: "We are told that there was no malice, and that the
prisoner must have been in liquor. In liquor! Why, he was drunk!... And
yet he murdered the very man who had been drinking with him! Good God,
my laards, if he will do this when he is drunk, what will he not do when
he is sober?"
On one of Lord Hermand's circuits a wag put a musical-box, which played
"Jack Alive," on one of the seats of the Court. The music struck the
audience with consternation, and the judge stared in the air, looking
unutterable things, and frantically called out, "Macer, what in the name
of God is that?" The macer looked round in vain, when the wag called
out, "It's 'Jack Alive,' my lord."--"Dead or alive, put him out this
moment," called out the judge. "We can't grip him, my lord."--"If he has
the art of hell, let every man assist to arraign him before me, that I
may commit him for this outrage and contempt." Everybody tried to
discover the offender, and fortunately the music ceased. But it began
again half an hour afterwards, and the judge exclaimed, "Is he there
again? By all that's sacred, he shall not escape me this time--fence,
bolt, bar the doors of the Court, and at your peril let not a man,
living or dead, escape." All was bustle and confusion, the officers
looked east and west, and up in the air and down on the floor; but the
search was in vain. The judge at last began to suspect witchcraft, and
exclaimed, "This is a _deceptio auris_--it is absolute delusion,
necromancy, phantasmagoria." And to the day of his death the judge never
understood the precise origin of this unwonted visitation.
On another occasion, in his own Court in the Parliament House, he was
annoyed by a noise near the door, and called to the macer, "What is that
noise?"--"It's a man, my lord."--"What does he want?"--"He _wants in_,
my lord."--"Keep him out!" The man, it seems, did get in, and soon
afterwards a like noise was renewed, and his lordship again demanded,
"What's the noise there?"--"It's the same man, my lord."--"What does he
want now?"--"He _wants out_, my lord."--"Then _keep him in_--I say,
_keep him in_!"
* * * * *
Lord President Campbell, after the fashion of those times, was somewhat
addicted to browbeating young counsel; and as bearding a judge on the
Bench is not a likely way to rise in favour, his lordship generally got
it all his own way. Upon one occasion, however, he caught a tartar. His
lordship had what are termed pig's eyes, and his voice was thin and
weak. Corbet, a bold and sarcastic counsel in his younger days, had been
pleading before the Inner House, and as usual the President commenced
his attack, when his intended victim thus addressed him: "My lord, it is
not for me to enter into any altercation with your lordship, for no one
knows better than I do the great difference between us; you occupy the
highest place on the Bench, and I the lowest at the Bar; and then, my
lord, I have not your lordship's voice of thunder--I have not your
lordship's rolling eye of command."
* * * * *
[Illustration: ROBERT MACQUEEN, LORD BRAXFIELD.]
Robert Macqueen (Lord Braxfield), the prototype of Stevenson's "Weir of
Hermiston," was known as the "hanging judge"--the Judge Jeffreys of
Scotland; but he was a sound judge. He argued a point in a colloquial
style, asking a question, and himself supplying the answer in his clear,
abrupt manner. But he was illiterate, and without the least desire for
refined enjoyment, holding in disdain natures less coarse than his own;
he shocked the feelings of those even of an age which had less decorum
than prevailed in that which succeeded, and would not be tolerated by
the working classes of to-day. Playing whist with a lady, he exclaimed,
"What are ye doin', ye damned auld ...," and then recollecting himself,
"Your pardon's begged, madam; I took ye for my wife." When his butler
gave up his place because his lordship's wife was always scolding him:
"Lord," he exclaimed, "ye've little to complain o'; ye may be thankfu'
ye're no mairred to her."
His most notorious sayings from the Bench were uttered during the trials
for sedition towards the end of the eighteenth century, and even some of
these are too coarse for repetition. "Ye're a very clever chiel," he
said to one of the prisoners; "but ye wad be nane the waur o' a
hangin'." And to a juror arriving late in Court he said, "Come awa,
Maister Horner, come awa and help us to hang ane o' they damned
scoondrels." Hanging was his term for all kinds of punishment.
To Margarot, a Baptist minister of Dundee--another of the political
prisoners of that time--he said, "Hae ye ony coonsel, man?"--"No,"
replied Margarot. "Dae ye want tae hae ony appointed?" continued the
Justice-Clerk. "No," replied the prisoner, "I only want an interpreter
to make me understand what your lordship says."
* * * * *
We have already referred to Lord Moncreiff's piety, and to it must be
added his great simplicity of nature. Like many of his predecessors, he
had a habit of making long speeches to prisoners on their conviction;
but his intention was to help them to a better mode of life, not to
aggravate their feelings by silly or coarse remarks. This habit,
however, led him occasionally into enunciating principles which rather
astonished his friends. In a murder case he found that the woman killed
was not the wife of the prisoner but his mistress, which led his
lordship to explain to the prisoner that it might have been some apology
for his crime had the woman been his wife, because there was difficulty
in getting rid of her any other way. But the victim being only his
associate he could have left her at any time, and consequently there
were absolutely no ameliorating circumstances in the case. From this
point of view it would seem to have been (in Lord Moncreiff's eyes) less
criminal to murder a wife than a mistress. In another, a bigamy case,
after referring to the perfidy and cruelty to the women and their
relations, Lord Cockburn reports him to have said: "All this is bad; but
your true iniquity consists in this, that you degraded that holy
ceremony which our blessed Saviour _condescended_ to select as the type
of the connection between him and His redeemed Church."
In the Court of Session, the judges who do not attend or give a proper
excuse for their absence are (or were) liable to a fine. This,
however, is never enforced: but it is customary on the first day of the
session for the absentee to send an excuse to the Lord President. Lord
Stonefield having sent an excuse, and the Lord President mentioning that
he had done so, the Lord Justice-Clerk said: "What excuse can a stout
fellow like him hae?"--"My lord," said the President, "he has lost his
wife." To which the Justice-Clerk replied: "Has he? That is a gude
excuse indeed, I wish we had a' the same."
* * * * *
Lord Cockburn's looks, tones, language, and manner were always such as
to make one think that he believed every word he said. On one occasion,
before he was raised to the Bench, when defending a murderer, although
he failed to convince the judge and jurymen of the innocence of his
client, yet he convinced the murderer himself that he was innocent.
Sentence of death was pronounced, and the day of execution fixed for the
3rd of March. As Lord Cockburn was passing the condemned man, the latter
seized him by the gown, saying: "I have not got justice!" To this the
advocate coolly replied: "Perhaps not; but you'll get it on the 3rd of
March."
Cockburn's racy humour displayed itself in another serious case; one in
which a farm-servant was charged with maiming his master's cattle by
cutting off their tails. A consultation was held on the question of the
man's mental condition at which the farmer was present, and at the close
of it some conversation took place about the disposal of the cattle.
Turning to the farmer Cockburn said that they might be sold, but that he
would have to dispose of them wholesale for he could not now _retail_
them.
He was walking on the hillside on his estate of Bonaly, near Edinburgh,
talking to his shepherd, and speculating about the reasons why his sheep
lay on what seemed to be the least sheltered and coldest situation on
the hill. Said his lordship: "John, if I were a sheep I would lie on the
other side of the hill." The shepherd answered: "Ay, my lord; but if ye
had been a sheep ye would have had mair sense."
Sitting long after the usual hour listening to a prosy counsel, Lord
Cockburn was commiserated by a friend as they left the Court together
with the remark: "Counsel has encroached very much on your time, my
lord."--"Time, time," exclaimed his lordship; "he has exhausted time and
encroached on eternity."
When a young advocate, Cockburn was a frequent visitor at Niddrie
Marischal, near Edinburgh, the residence of Mr. Wauchope. This gentleman
was very particular about church-going, but one Sunday he stayed at home
and his young guest started for the parish church accompanied by one of
his host's handsomest daughters. On their way they passed through the
garden, and were so beguiled by the gooseberry bushes that the time
slipped away and they found themselves too late for the service. At
dinner the laird inquired of his daughter what the text was, and when
she failed to tell him he put the question to Cockburn, who at once
replied: "The woman whom thou gavest to be with me she gave me of the
fruit and I did eat."
Jeffrey and Cockburn were counsel together in a case in which it was
sought to prove that the heir of an estate was of low capacity, and
therefore incapable of administrating his affairs. Jeffrey had vainly
attempted to make a country witness understand his meaning as he spoke
of the mental imbecility and impaired intellect of the party. Cockburn
rose to his relief, and was successful at once. "D'ye ken young Sandy
----?"--"Brawly," said the witness; "I've kent him sin' he was a
laddie."--"An' is there onything in the cratur, d'ye think?"--"Deed,"
responded the witness, "there's naething in him ava; he wadna ken a coo
frae a cauf!"
When addressing the jury in a case in which an officer of the army was a
witness, Jeffrey frequently referred to him as "this soldier." The
witness, who was in Court, bore this for a time, but at last,
exasperated, exclaimed, "I am not a soldier, I'm an officer!"--"Well,
gentlemen of the jury," proceeded Jeffrey, "this officer, who on his own
statement is no soldier," &c.
Patrick, Lord Robertson, one of the senators of the College of Justice,
was a great humorist. He was on terms of intimacy with the late Mr.
Alexander Douglas, W.S., who, on account of the untidiness of his
person, was known by the sobriquet of "Dirty Douglas." Lord Robertson
invited his friend to accompany him to a ball. "I would go," said Mr.
Douglas, "but I don't care about my friends knowing that I attend
balls."--"Why, Douglas," replied the senator, "put on a well-brushed
coat and a clean shirt, and nobody will know you." When at the Bar,
Robertson was frequently entrusted with cases by Mr. Douglas. Handing
his learned friend a fee in Scottish notes, Mr. Douglas remarked: "These
notes, Robertson, are, like myself, getting old."--"Yes, they're both
old and dirty, Douglas," rejoined Robertson.
When Robertson was attending an appeal case in the House of Lords he
received great attention from Lord Brougham. This gave rise to a report
in the Parliament House of Edinburgh that the popular Tory advocate had
"ratted" to the Liberal side in politics, which found expression in the
following _jeu d'esprit_:
"When Brougham by Robertson was told
He'd condescend a place to hold,
The Chancellor said, with wondering eyes,
Viewing the _Rat's_ tremendous size,
'That you a place would hold is true,
But where's the place that would hold you?'"
Lord Rutherford when at the Bar put an illustration to the Bench in
connection with a church case. "Suppose the Justiciary Court condemned a
man to be hanged, however unjustly, could that man come into this Court
of Session and ask your lordships to interfere?" and he turned round
very majestically to Robertson opposing him. "Oh, my lords," said
Robertson, "a case of suspension, clearly."
When a sheriff, Rutherford, dining with a number of members of the legal
profession, had to reply to the toast, "The Bench of Scotland." In
illustration of a trite remark that all litigants could not be expected
to have the highest regard for the judges who have tried their cases, he
told the following story: A worthy but unfortunate south-country farmer
had fought his case in the teeth of adverse decisions in the Lower
Courts to the bitter end in one of the divisions of the Court of
Session. After the decision of this tribunal affirming the judgment he
had appealed against, and thus finally blasting his fondest hopes, he
was heard to mutter as he left the Court: "They ca' themselves senators
o' the College o' Justice, but it's ma opeenion they're a' the waur o'
drink!"
* * * * *
It was only a small point of law, but the two counsel were hammering at
each other tooth and nail. They had been submitting this and that to his
lordship for twenty minutes, and growing more and more heated as they
argued. At last: "You're an ass, sir!" shrieked one. "And you're a liar,
sir!" roared the other. Then the judge woke up. "Now that counsel have
identified each other," said he, "let us proceed to the disputed
points."
A recent eminent judge of the Scottish Bench when sitting to an artist
for his portrait was asked what he thought of the likeness. His
lordship's reply was that he thought it good enough, but he would have
liked "to see a little more dislike to Gladstone's Irish Bills in the
expression."
Lord Shand's shortness of stature has been a theme of several stories.
When he left Edinburgh after sitting as a judge of the Court of Session
for eighteen years, one of his colleagues suggested that a statue ought
to be erected to him. "Or shall we say a statuette?" was the remark of
another friend. His lordship lived at Newhailes--the property of one of
the Dalrymple family, several members of which were eminent judges in
the late seventeenth and the early eighteenth centuries--and travelled
to town by rail. The guard was a pawky Aberdonian, and had evidently
been greatly struck by Lord Shand's appearance, for his customary
salutation to him, delivered no doubt in a parental and patronising
fashion, was: "And fu (how) are ye the day, ma lordie?" His lordship's
manner of receiving this greeting is not recorded. Still another
anecdote on the same subject is that when still an advocate, it was
proposed to make Mr. Shand a Judge of Assize. On the proposal being
mentioned to a colleague famous for his caustic wit, the latter with a
good-humoured sneer which raised a hearty laugh at the expense of his
genial friend, remarked: "Ah, a judge of a size, indeed."
* * * * *
[Illustration: GEORGE YOUNG, LORD YOUNG.]
Lord Young's wit was of this caustic turn and not infrequently was
intended to sting the person to whom it was addressed. An advocate was
wending his weary way through a case one day, and in the course of
making a point he referred to a witness who had deponed that he had seen
two different things at one time and consequently contradicted himself.
Lord Young gave vent to the feelings of his colleagues in the Second
Division of the Court, when he interrupted thus:
"Oh, Mr. B----, I can see more than two things at one time. I can see
your paper, and beyond your paper I can see you, and beyond you I can
see the clock, and I can see that you have been labouring for an hour
over a point that is capable of being expressed in a sentence."
In the course of an argument in the same division, counsel had occasion
to refer to "Fraser" (a brother judge) "on Husband and Wife." Lord
Young, interrupting, asked: 'Hasn't Fraser another book?'--'Yes, my
lord, 'Master and Servant!''--'Well,' said Lord Young, 'isn't that the
same thing?'
Owing to a vacancy on the Bench having been kept open for a long period,
Lord Young's roll had become very heavy. Hearing that a new colleague
had been appointed, and like the late judge had adopted a title ending
in "hill," he gratefully quoted the lines of the one hundred and
twenty-first psalm:
"I to the hills will lift mine eyes,
From whence doth come mine aid."
Before the same judge, two prominent advocates in their day were
debating a case. One of them was a particularly well-known figure, the
feature of whose pinafore, if he wore one, would be its extensive girth.
The other advocate, who happened to be rather slim, was addressing his
lordship: "My learned friend and I are particularly at one upon this
point. I may say, my lord, that we are virtually in the same boat." Here
his opponent broke in: "No, no, my lord, we are nothing of the kind. I
do not agree with that." Lord Young, leaning across the bench, remarked:
"No, I suppose you would need a whole boat to yourself."
It is also attributed to Lord Young that, when Mr. Baird of Cambusdoon
bequeathed a large sum of money to the Church of Scotland to found the
lectureship delivered under the auspices of the Baird Trust, he
remarked that it was the highest fire insurance premium he had ever
heard of. "Possibly, my lord," observed a fire insurance manager who
heard the remark; "but you will admit that cases occur where the premium
scarcely covers the risk."
Lord Guthrie tells that when, as an advocate, he was engaged in a case
before Lord Young, he mentioned that his client was a Free Church
minister. "Well," said Lord Young, "that may be, but for all that he may
perhaps be quite a respectable man."