Scotland a vacancy occurred on the Bench and two names were mentioned in
connection with it. One was that of Mr. Horne, Dean of Faculty, a very
tall man, and the other Lord Shand. "So, Mr. Young," said a friend,
"you'll be going to appoint Horne?"--"I doubt if I will get his length,"
was the reply. "Oh, then," queried the friend, "you'll be going to
appoint Shand?"--"It's the least I could do," answered the witty Lord
Advocate.
* * * * *
"What is your occupation?" asked Lord Ardwall of a witness in a case. "A
miner, sir."--"Good; and how old are you?"--"Twenty, sir."--"Ah, then
you are a minor in more senses than one." Whereat, no doubt, the Court
laughed. "Now, my lord, we come to the question of commission received
by the witness, which I was forgetting," said a counsel before the same
judge one day. "Ah, don't commit the omission of omitting the
commission," replied his lordship.
An unfortunate miner had been hit on the head by a lump of coal, and the
judges of the First Division of the Court of Session were considering
whether his case raised a question of law or of fact. "The only law I
can see in the matter," said Lord Maclaren, "is the law of gravitation."
In a fishing case heard in the Court of Session some years ago, a good
deal of evidence was led on the subject of taking immature salmon from a
river in the north. The case was an important one, and the evidence was
taken down in shorthand notes and printed for the use of the judge and
counsel next day. The evidence of one of the witnesses with respect to
certain of the salmon taken was that "some of them were kelts." When his
lordship turned over the pages of the printed evidence next morning to
refresh his memory, he was astonished to find it stated by one of the
witnesses in regard to the salmon that "some of them wore kilts."
Many other stories, particularly of the older judges, might be given,
were they not too well known. We may therefore close this chapter with
the following epigram by a Scottish writer, which is decidedly pointed
and clever, and has the additional merit of being self-explanatory:
"He was a burglar stout and strong,
Who held, 'It surely can't be wrong,
To open trunks and rifle shelves,
For God helps those who help themselves.'
But when before the Court he came,
And boldly rose to plead the same,
The judge replied--'That's very true;
You've helped yourself--_now God help you!_'"
CHAPTER SIX
THE ADVOCATES OF SCOTLAND
"Ye lawyers who live upon litigants' fees,
And who need a good many to live at your ease,
Grave or gay, wise or witty, whate'er your degree,
Plain stuff, or Queen's Counsel, take counsel from me,
When a festive occasion your spirit unbends,
You should never forget the profession's best friends;
So we'll send round the wine and a bright bumper fill
To the jolly Testator who makes his own will."
NEAVES: _Songs and Verses_.
CHAPTER SIX
THE ADVOCATES OF SCOTLAND
Since days when Sir Walter Scott gathered round him at the fireplace in
the Parliament Hall of Edinburgh a company of young brother advocates to
hear the latest of Lord Eskgrove's eccentric sayings from the Bench,
that rendezvous has been the favourite resort for story-telling among
succeeding generations of counsel. While the Court is in session, they
vary their daily walk up and down the hall by lounging round the spot
where the future Wizard of the North proved a strong counter-attraction
to many an interesting case being argued before a Lord Ordinary in the
alcoves on the opposite side of the hall, which was then the "Outer
House." It is even asserted that this same fireplace is the hatchery of
many of the amusing paragraphs daily appearing in a column of a certain
Edinburgh newspaper. But of all the witticisms that have enlivened the
dull hours of the briefless barrister in that historic hall during the
past century, none will stand the test of time or be read with so much
pleasure as those of that prince of wits, the Hon. Henry Erskine.
* * * * *
[Illustration: THE HON. HENRY ERSKINE, LORD ADVOCATE AND DEAN OF FACULTY
OF ADVOCATES.]
Hairry, as he was familiarly called both by judge and counsel, was in an
eminent degree the "advocate of the people." It is said that a poor man
in a remote district of Scotland thus answered an acquaintance who
wished to dissuade him from "going to law" with a wealthy neighbour, by
representing the hopelessness of being able to meet the expenses of
litigation. "Ye dinna ken what ye're saying, maister," replied the
litigious northerner; "there's no' a puir man in a' Scotland need want a
freen' or fear a foe, sae lang as Hairry Erskine lives."
When the autocratic reign of Henry Dundas as Lord Advocate was for a
time eclipsed, Henry Erskine was his successor in the Whig interest. In
his good-humoured way Dundas proposed to lend Erskine his embroidered
gown, suggesting that it would not be long before he (Dundas) would
again be in office. "Thank you," said Hairry, "I am well aware it is
made to suit any party, but it will never be said of me that I assumed
the abandoned habits of my predecessor."
Having been speaking in the Outer House at the Bar of Lord Swinton, a
very good, but a very slow and deaf judge, Erskine was called away to
Lord Braxfield's Court. On appearing his lordship said: "Well, Dean" (he
was then Dean of the Faculty of Advocates), "what is this you've been
talking so loudly about to my Lord Swinton?"--"About a cask of whisky,
my lord, but I found it no easy matter to make it run in his lordship's
head."
He was once defending a client, a lady of the name of Tickell, before
one of the judges who was an intimate friend, and he opened his
address to his lordship in these terms: "Tickell, my client, my lord."
But the judge was equal to the occasion and interrupted him by saying:
"Tickle her yourself, Harry, you're as able to do it as I am."
Lord Balmuto was a ponderous judge and not very "gleg in the uptak" (did
not readily see a point), and retained the utmost gravity while the
whole Court was convulsed with laughter at some joke of the witty Dean.
Hours later, when another case was being heard, the judge would suddenly
exclaim: "Eh, Maister Hairry, a' hae ye noo, a' hae ye noo, vera guid,
vera guid."
Hugo Arnot, a brother advocate, a tall, cadaverous-looking man, who
suffered from asthma, was one day munching a speldin (a sun-dried
whiting or small haddock, a favourite article supplied at that time, and
till a generation ago, by certain Edinburgh shops). Erskine coming up to
Arnot, the latter explained that he was having his lunch. "So I see,"
said Harry, "and you're very like your meat." On another occasion these
two worthies were discussing future punishment for errors of the flesh,
Arnot taking a liberal, and Erskine a strongly Calvinist view. As they
were parting Erskine said to Arnot, referring to his spare figure:
"For ---- and blasphemy by the mercy of heaven
To flesh and to blood much may be forgiven,
But I've searched all the Scriptures and text I find none
That the same is extended to skin and to bone."
Erskine's brother, the extremely eccentric Lord Buchan, who thought
himself as great a jester as his two younger brothers, the Lord
Chancellor of England and the Dean of Faculty of Advocates, one day
putting his head below the lock of a door, exclaimed: "See, Harry,
here's Locke on the Human Understanding."--"Rather a poor edition, my
lord," replied the younger brother.
Sir James Colquhoun, Baronet of Luss, Principal Clerk of Session,
towards the close of the eighteenth century was one of the odd
characters of his time, and was made the butt of all the wags of the
Parliament House. On one occasion, whilst Henry Erskine was in the Court
in which Sir James was on duty, he amused himself by making faces at the
Principal Clerk, who was greatly annoyed at the strange conduct of the
tormenting lawyer. Unable to bear it longer, he disturbed the gravity of
the Court by rising from the table at which he sat and exclaiming, "My
lord, my lord, I wish you would speak to Harry, he's aye making faces at
me." Harry, however, looked as grave as a judge and the work of the
Court proceeded, until Sir James, looking again towards the bar,
witnessed a new grimace from his tormentor, and convulsed Bench, Bar,
and audience by roaring out: "There, there, my lord, see he's at it
again."
Hugo Arnot's eccentricity took various forms. In his house in South St.
Andrew Street, in the new town of Edinburgh, he greatly annoyed a lady
who lived in the same tenement by the violence with which he kept
ringing his bell for his servant. The lady complained; but what was her
horror next day to hear several pistol-shots fired in the house, which
was Arnot's new method of demanding his valet's immediate attendance.
In his professional capacity, however, he was guided by a high sense of
honour and of moral obligation. In a case submitted for his
consideration, which seemed to him to possess neither of these
qualifications, he with a very grave face said to his client: "Pray what
do you suppose me to be?"--"Why, sir," answered the client, "I
understood you to be a lawyer."--"I thought, sir," replied Arnot, "you
took me for a scoundrel." On another occasion he was consulted by a
lady, not remarkable either for youth or beauty or for good temper, as
to the best method of getting rid of the importunities of a rejected
admirer. After having told her story and claiming a relationship with
him because her own name was Arnot, she wound up with: "Ye maun advise
me what I ought to do with this impertinent fellow."--"Oh, marry him by
all means, it's the only way to get quit of his importunities," was
Arnot's advice. "I would see him hanged first," retorted the lady.
"Nay, madam," rejoined Arnot, "marry him directly as I said before, and
by the Lord Harry he'll soon hang himself."
* * * * *
Of the convivial habits of the Bar as well as the Bench in Scotland at
this period many stories are told. The Second Lord President Dundas once
refused to listen to counsel who obviously showed signs of having come
into Court fresh from a tavern debauch. The check given by the President
appeared to effect some sobering of the counsel's faculties and he
immediately addressed his lordship upon the dignity of the Faculty of
Advocates, winding up a long harangue with: "It is our duty and our
privilege to speak, my lord, and it is your duty and your privilege to
hear."
Another counsel in a similar condition of haziness hurriedly entered the
Court and took up the case in which he was engaged; but forgetting for
which side he had been fee'd, to the unutterable amazement of the agent,
delivered a long and fervent speech in the teeth of the interests he had
been expected to support. When at last the agent made him understand the
mistake he had made, he with infinite composure resumed his oration by
saying: "Such, my lord, is the statement you will probably hear from my
brother on the opposite side of the case. I shall now show your lordship
how utterly untenable are the principles and how distorted are the
facts upon which this very specious statement has proceeded." And so he
went over the same ground and most angelically refuted himself from the
beginning of his former pleading to the end.
* * * * *
[Illustration: ANDREW CROSBIE, ADVOCATE, "Pleydell."]
When a barrister, pleading before Lord Mansfield, pronounced a Latin
word with a false quantity his lordship rarely let the opportunity pass
without exhibiting his own precise knowledge of that language. "My
lords," said the Scottish advocate, Crosbie, at the bar of the House of
Lords, "I have the honour to appear before your lordships as counsel for
the Curătors."--"Ugh," groaned the Westminster-Oxford law lord,
softening his reproof by an allusion to his Scottish nationality,
"Curātors, Mr. Crosbie, Curātors: I wish _our_ countrymen would
pay a little more attention to prosody."--"My lord," replied Mr.
Crosbie, with delightful readiness and composure, "I can assure you that
_our_ countrymen are very proud of your lordship as the greatest
senātor and orātor of the present age."
A very young Scottish advocate, afterwards an eminent judge on the
Scottish Bench, pleading before the House of Lords, ventured to
challenge some early judgments of that House, on which he was abruptly
asked by Lord Brougham: "Do you mean, sir, to call in question the
solemn decisions of this venerable tribunal?"--"Yes, my lord," coolly
replied the young counsel, "there are some people in Scotland who are
bold enough to dispute the soundness of some of your lordship's _own_
decisions."
* * * * *
Sheriff Logan, when pleading before Lord Cunningham in a case which
involved numerous points of form, on some of which he ventured to
express an opinion, was repeatedly interrupted by old Beveridge, the
judge's clerk--a great authority on matters of form--who unfortunately
possessed a very large nasal organ, which literally overhung his mouth.
"No, no," said the clerk, as the sheriff was quietly explaining the
practice in certain cases. On which Logan, somewhat nettled at the blunt
interruption, coolly replied: "But, my lord, I say: 'Yes, yes, yes,' in
spite of Mr. Beveridge's _noes_."
In the days of Sheriff Harper, Mr. Richard Lees, solicitor, Galashiels,
was engaged in a case for a client who was not overburdened with the
necessary funds for legal proceedings. However, he was thought good
enough for the expenses in the case. The action went against Mr. Lees'
client, and then Mr. Lees rose to plead for modified expenses. But the
client leant across to speak to the lawyer and said in a hoarse whisper
audible over the Court: "Dinna stent (limit) yoursels for the expenses
for a haena a fardin'." This was too much even for the gravity of the
Bench.
Not many years ago, in the High Court at Glasgow, a case was heard
before an eminent judge still on the Scottish Bench, in which the
accused had committed a very serious assault and robbery. He was unable
to engage counsel for his defence, and the usual course was adopted of
putting his case in the hands of "counsel for the poor." There was
really no defence; but the young advocate who undertook the task had to
make the best of it, and the plea he put forward was that the accused
was so drunk at the time he did not know what he was doing. It was the
best thing he could do in the circumstances, as all the success he could
expect to make with a well-known felon was a mitigation of the sentence.
When it came to his time to address the Court, he set out in the
following fashion: "My lord and gentlemen of the jury, you all know what
it is to be drunk."
It is most important to be exact in stating the times of the movements
of a person accused of murder. In a recent case this point was very
minutely examined by an advocate in the Scottish Court. One witness
deponed that she saw the accused in a certain place at 5.40 P.M. "Are
you sure," asked the learned counsel in a tone calculated to make a
witness not quite sure after all, "are you sure it was not twenty
minutes to six?" And then he seemed surprised at the laughter his
question had raised.
When Mr. Ludovick Mair, who was a very short man, was Sheriff-Substitute
of Lanarkshire, he was called upon, at an Ayrshire Burns Club dinner, to
propose the toast of the "Ayrshire Lasses." After alluding to the honour
that had been conferred upon him, happily said that "Provided his fair
clients were prepared to be 'contented wi' little and canty wi' mair,'
he had no compunction in performing the agreeable duty."
In the Glasgow Small Debt Court where the sheriff frequently presided, a
young lawyer's exhaustive eloquence in striving to prove that his client
was not due the sum sued for, drew from his lordship the following
interruption: "Excuse me, sir, but throughout the conflict and turmoil
engendered by this desperate dispute with the pursuer I presume the
British Empire is not in any danger?"--"No, my lord," came the reply,
"but I fear after that interrogation from your lordship my client's case
is?"
On one occasion the sheriff, becoming impatient with an agent's
protracted speech, rebuked him thus: "Be brief, be brief, my dear sir;
time is short and eternity is long!" And again on being asked by an
agent not to allow a witty old Irishman to act as the spokesman of "the
defendant" on the ground that the Irishman was not now in the
defendant's employment, the sheriff sternly said to the would-be
witness: "Now, answer me truthfully, mirthful Michael, are you or are
you not in the defendant's employment?"--"Well, my lord of lords," was
the reply, "that is to say, in the learned phraseology of the law, _pro
tem_ I am and _ultimo_ and _proximo_ I amn't."
* * * * *
Two stories are told of the late Sheriff Balfour. His lordship was
addressing a prisoner at unusual length, when he was interrupted more
than once by a _sotto voce_ observation from his then clerk, who was
very impatient when the luncheon hour drew near. Accustomed to this
interruption, the sheriff, as a rule, took no notice of them. On this
occasion, however, he threw down his quill with a show of annoyance,
leaned back in his chair, and addressed the interrupter thus: "I say,
Mr. ----, are you, or am I, sheriff here?" Promptly came the unabashed
reply: "You, of course; but your lordship knows that this woman has been
frequently here," meaning that it was idle to address words of counsel
to the prisoner. On another occasion, the sheriff was pulled up by a
male prisoner, who took exception to his version of the story of the
crime, and concluded: "So you see I've got your lordship there."--"Have
you?" was the sheriff's rejoinder. "No, but I've got you--three months
hard."
A law agent was talking at length against an opinion which Sheriff
Balfour had already indicated. Twice the sheriff essayed in vain to
stay the torrent that was flowing uselessly past the mill. At last, in a
more decided tone, he asked the agent to allow him just one word, after
which he would engage not to interrupt him again. "Certainly, milord,"
said the agent. "Decree," said the sheriff.
* * * * *
Counsel who are briefless and who spend much time in perambulating the
floor of Parliament Hall should be as careful in their dress as their
more fortunate neighbours who jostle each other in the lobbies as they
rush from one Court to another. A company of Americans visiting the
Courts one day made a casual inquiry of one of the advocates "in
waiting," who politely offered to show them all that is to be seen. As
they were leaving, one of the party caught hold of a passing solicitor
and after apologising for stopping him inquired: "This--this--this
gentleman has been very good in showing us over your beautiful place.
Would it be correct to give him something?"--"Yes, certainly," said the
busy practitioner, "and it will be the first fee he has earned, to my
knowledge, for the last ten years."
An advocate of the present day, in trying to induce the Second Division
of the Court of Session to reverse a decision pronounced in Glasgow
Sheriff Court somewhat startled the Bench by reminding them that their
lordships were only mortal after all. "Are you quite sure of that?"
asked the presiding judge. Counsel judiciously refrained from replying
to this poser. The incident recalls an occasion in the Second Division
when it was presided over by Lord Justice-Clerk Moncreiff. A junior
counsel was debating a case in the division, and, apparently finding he
was not making much headway, invited their lordships to imagine for the
moment that they were navvies, and to look at the question from the
point of view of the worker. In stately tones the Lord Justice-Clerk
informed the audacious junior that his invitation was unsuited to the
dignity of the Court.
* * * * *
A learned counsel at the Bar prided himself on the juvenility of his
appearance, and boasted that he looked twenty years younger than he was.
He was cross-examining a very prepossessing and uncommonly
self-possessed young woman as to the age of a person whom she knew quite
well, but could get no satisfactory answer. "Well," he persisted, "but
surely you must have been able to make a good guess at his age, having
seen him often."--"People don't always look their age."--"No, but you
can surely form a good idea from their looks. Now, how old should you
say I am?" "You might be sixty by your looks, but judging by the
questions you ask I should say about sixteen!"
Much amusement is afforded by the answers given by witnesses to judges
and counsel. They form the theme of legions of stories, and we append a
selection to this chapter of legal wit of the Bar.
An Irishman before Lord Ardwall was giving evidence on the question
whether having lived eleven years in Glasgow he was a domiciled
Scotsman. He swore that he was, and as a question of succession depended
upon the domicile the point was of importance. The opposing counsel
thought he had him cornered when on the list of voters for an Irish
constituency he found the witness's name. But Pat was equal to the
occasion. "It's a safe sate," he said; "they never revise the lists,"
and by way of clinching the argument, he added: "Shure there's men in
Oireland who have been in their graves for twenty years who voted at the
last election."
Legal gentlemen sometimes resort to methods not quite in accordance with
usual practice to elicit information from stubborn witnesses. In Glasgow
Sheriff Court one day a somewhat long and involved question was
addressed by the cross-examining agent to a witness who, from his stout
build and imperturbable manner, looked the embodiment of Scottish
caution. The witness, who was not to be so easily "had," having regarded
his questioner with a steady gaze for the space of almost a minute, at
last broke silence: "Would you mind, sir," said he, "just repeating
that question, and splitting it into bits?" And after the Court had
regained its composure the discomfited agent humbly proceeded to
subdivide the question.
* * * * *
In the old days when Highlanders "kist oot" (quarrelled) they resorted
to the claymore, but the hereditary fighting spirit appears nowadays in
an appeal to the law. Perth Sheriff Courts witness many a "bout" between
the stalwarts, who are not amiss to clash all round if need be. "You
must have been in very questionable company at the show?" inquired a
sheriff of a farmer. "Weel, ma lord--you wis the last gentleman I spoke
to that day as I was coming oot!" was his reply.
The pointed insinuation to another witness in a claim case at the same
Court. "I think I have seen you here rather often of late," drew the
reply, "Nae doot, if a'm no takin' onybody here--then it's them that's
takin' me!"
Quite recently an old farmer in Perthshire, who had been rather severely
cross-examined by the opposing counsel, had his sweet revenge when the
sheriff, commenting on the case, inquired: "There seems to be a great
deal of dram-dramming at C---- on Tuesdays, I imagine?"--"Aye, whiles,"
was the canny reply--and immediately following it up, as he pointed
across at the rival lawyer, he continued--"an' that nicker ower there
can tak' a bit dram wi' the best o' them!"
A young advocate, as junior in a licensing club case, had to
cross-examine the certifying Justice of the Peace who was very diffuse
and rather evasive in his answers. "Speak a little more simply and to
the point, please," said counsel mildly. "You are a little ambiguous,
you know."--"I am not, sir," replied the witness indignantly; "I have
been teetotal for a year."
It is a fact well known to lawyers that it is a risky thing to call
witnesses to character unless you know exactly beforehand what they are
going to say. Here is an instance in point. "You say you have known the
prisoner all your life?" said the counsel. "Yes, sir," was the reply.
"Now," was the next question, "in your opinion is he a man who is likely
to have been guilty of stealing this money?"--"Well," said the witness
thoughtfully, "how much was it?"
In a County Sheriff Court his lordship addressed a witness: "You said
you drove a milk-cart, didn't you?" "No, sir, I didn't."--"Don't you
drive a milk-cart?" "No, sir."--"Ah! then what do you do, sir?"--"I
drive a horse."