Circuit Courts were in Scotland, in the eighteenth and early years of

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."

Law and Laughter · 第 9 / 14 段