The memories which have been preserved of the administration of justice
by the Court of Session in its earlier days are not such as to increase
our love for past times.[91] This court is described by Buchanan as
extremely arbitrary, and by a nearly contemporary historian (Johnston)
as infamous for its dishonesty. An advocate or barrister is spoken of
by the latter writer as taking money from his clients, and dividing it
among the judges for their votes. At this time we find the chancellor
(Lord Fyvie) superintending the lawsuits of a friend, and writing to
him the way and manner in which he proposed they should be conducted.
But the strongest evidence of the corruption of ‘the lords’ is afforded
by an act of 1579, prohibiting them ‘be thame selffis or be their
wiffis or servandes, to tak in ony time cuming, _buddis_, _bribes_,
_gudes_, _or geir_, fra quhatever persone or persons presentlie havand,
or that heirefter sall happyne to have, _any actionis or caussis
pursewit befoir thame_, aither fra the persewer or defender,’ under
pain of confiscation. Had not bribery been common amongst the judges,
such an act as this could never have been passed.
In the curious history of the family of Somerville there is a very
remarkable anecdote illustrative of the course of justice at that
period. Lord Somerville and his kinsman, Somerville of Cambusnethan,
had long carried on a litigation. The former was at length advised to
use certain means for the advancement of his cause with the Regent
Morton, it being then customary for the sovereign to preside in the
court. Accordingly, having one evening caused his agents to prepare
all the required papers, he went next morning to the palace, and being
admitted to the regent, informed him of the cause, and entreated him
to order it to be called that forenoon. He then took out his purse,
as if to give a few pieces to the pages or servants, and slipping it
down upon the table, hurriedly left the presence-chamber. The earl
cried several times after him: ‘My lord, you have left your purse;’
but he had no wish to stop. At length, when he was at the outer
porch, a servant overtook him with a request that he would go back to
breakfast with the regent. He did so, was kindly treated, and soon
after was taken by Morton in his coach to the court-room in the city.
‘Cambusnethan, by accident, as the coach passed, was standing at
Niddry’s Wynd head, and having inquired who was in it with the regent,
he was answered: “None but Lord Somerville and Lord Boyd;” upon which
he struck his breast, and said: “This day my cause is lost!” and indeed
it proved so.’ By twelve o’clock that day, Lord Somerville had gained a
cause which had been hanging in suspense for years.
In those days both civil and criminal procedure was conducted in
much the same spirit as a suit at war. When a great noble was to be
tried for some monstrous murder or treason, he appeared at the bar
with as many of his retainers, and as many of his friends and their
retainers, as he could muster, and justice only had its course if
the government chanced to be the strongest, which often was not the
case. It was considered dishonourable not to countenance a friend in
troubles of this kind, however black might be his moral guilt. The
trial of Bothwell for the assassination of Darnley is a noted example
of a criminal outbraving his judges and jury. Relationship, friendly
connection, solicitation of friends, and direct bribes were admitted
and recognised influences to which the civil judge was expected to
give way. If a difficulty were found in inducing a judge to vote
against his conscience, he might at least perhaps be induced by some
of those considerations to absent himself, so as to allow the case to
go in the desired way. The story of the abduction of Gibson of Durie
by Christie’s Will, and his immurement in a Border tower for some
weeks, that his voice might be absent in the decision of a case—as
given in the _Border Minstrelsy_ by Scott—is only incorrect in some
particulars. (As the real case is reported in Pitcairn’s _Criminal
Trials_, it appears that, in September 1601, Gibson was carried off
from the neighbourhood of St Andrews by George Meldrum, younger of
Dumbreck, and hastily transported to the castle of Harbottle in
Northumberland, and kept there for eight days.) But, after all,
Scotland was not singular among European nations in these respects. In
Molière’s _Misanthrope_, produced in 1666, we find the good-natured
Philinte coolly remonstrating with Alceste on his unreasonable
resolution to let his lawsuit depend only on right and equity.
‘Qui voulez-vous donc, qui pour vous sollicite?’ says Philinte. ‘Aucun
juge par vous ne sera visité?’
‘Je ne remuerai point,’ returns the misanthrope.
_Philinte._ Votre partie est forte, et peut par sa cabale entrainer....
_Alceste._ Il n’importe....
_Philinte._ Quel homme!... On se riroit de vous, Alceste, si on vous
entendoit parler de la façon. (_People would laugh at you if they heard
you talk in this manner._)
It is a general tradition in Scotland that the English judges whom
Cromwell sent down to administer the law in Scotland, for the first
time made the people acquainted with impartiality of judgment. It is
added that, after the Restoration, when native lords were again put
upon the bench, some one, in presence of the President Gilmour, lauding
the late English judges for the equity of their proceedings, his
lordship angrily remarked: ‘De’il thank them; a wheen kinless loons!’
That is, no thanks to them; a set of fellows without relations in the
country, and who, consequently, had no one to please by their decisions.
After the Restoration there was no longer direct bribing, but other
abuses still flourished. The judges were tampered with by private
solicitation. Decisions went in favour of the man of most personal or
family influence. The following anecdote of the reign of Charles II.
rests on excellent authority: ‘A Scotch gentleman having entreated
the Earl of Rochester to speak to the Duke of Lauderdale upon the
account of a business that seemed to be supported by a clear and
undoubted right, his lordship very obligingly promised to do his utmost
endeavours to engage the duke to stand his friend in a concern so just
and reasonable as his was; and accordingly, having conferred with his
grace about the matter, the duke made him this very odd return, that
though he questioned not the right of the gentleman he recommended to
him, yet he could not promise him a helping hand, and far less success
in business, if he knew not first the man, whom perhaps his lordship
had some reason to conceal; “because,” said he to the earl, “if your
lordship were as well acquainted with the customs of Scotland as I am,
you had undoubtedly known this among others—_Show me the man, and I’ll
show you the law_;” giving him to understand that the law in Scotland
could protect no man if either his purse were empty or his adversaries
great men, or supported by great ones.’[92]
One peculiar means of favouring a particular party was then in the
power of the presiding judge: he could call a cause when he pleased.
Thus he would watch till one or more judges who took the opposite
view to his own were out of the way—either in attendance on other
duties or from illness—and then calling the cause, would decide it
according to his predilection. Even the first President Dalrymple,
afterwards Viscount Stair, one of the most eminent men whom the
Scottish law-courts have ever produced, condescended to favour a party
in this way. An act enjoining the calling of causes according to their
place in a regular roll was passed in the reign of Charles II.; but
the practice was not enforced till the days of President Forbes, sixty
years later. We have a remarkable illustration of the partiality of
the bench in a circumstance which took place about the time of the
Revolution. During the pleadings in a case between Mr Pitilloch, an
advocate, and Mr Aytoun of Inchdairnie, the former applied the term
_briber_ to Lord Harcarse, a judge seated at the moment on the bench,
and who was father-in-law to the opposite party. The man was imprisoned
for contempt; but this is not the point. Not long after, in this same
cause, Lord Harcarse went down to the bar in his gown, and pleaded for
his son-in-law Aytoun!
About that period a curious indirect means of influencing the judges
began to be notorious. Each lord had a dependant or favourite,
generally some young relative, practising in the court, through whom
it was understood that he could be prepossessed with a favourable
view of any cause. This functionary was called a _Peat_ or _Pate_,
from a circumstance thus related in Wilkes’s _North Briton_: ‘One of
the former judges of the Court of Session, of the first character,
knowledge, and application to business, had a son at the bar whose
name was Patrick; and when the suitors came about, soliciting his
favour, his question was: “Have you consulted _Pat_?” If the answer
was affirmative, the usual reply of his lordship was: “I’ll inquire of
_Pat_ about it; I’ll take care of your cause; go home and mind your
business.” The judge in that case was even as good as his word, for
while his brother-judges were robing, he would tell them what pains
his son had taken, and what trouble he had put himself to, by his
directions, in order to find out the real circumstances of the dispute;
and as no one on the bench would be so unmannerly as to question the
veracity of the son or the judgment of the father, the decree always
went according to the information of _Pat_. At the present era, in case
a judge has no son at the bar, his nearest relation (and he is sure
to have one there) officiates in that station. But, as it frequently
happens, if there are _Pats_ employed on each side, the judges differ,
and the greatest interest—that is, the longest purse—is sure to carry
it.’
I bring the subject to a conclusion by a quotation from the _Court
of Session Garland_: ‘Even so far down as 1737 traces of the ancient
evil may be found. Thus, in some very curious letters which passed
between William Foulis, Esq. of Woodhall, and his agent, Thomas Gibson
of Durie, there is evidence that private influence could even then be
resorted to. The agent writes to his client, in reference to a pending
lawsuit (23rd November 1735): “I have spoken to Strachan and several
of the lords, who are all surprised Sir F[rancis Kinloch] should
stand that plea. By Lord St Clair’s advice, Mrs Kinloch is to wait on
Lady Cairnie to-morrow, to cause her ask the favour of Lady St Clair
to solicit Lady Betty Elphingston and Lady Dun. My lord promises to
back his lady, and to ply both their lords, also Leven and his cousin
Murkle.[93] He is your good friend, and wishes success; he is jealous
Mrs Mackie will side with her cousin Beatie. St Clair says _Leven[94]
has only once gone wrong upon his hand since he was a Lord of Session_.
Mrs Kinloch has been with Miss Pringle, Newhall. Young Dr Pringle is _a
good agent there_, and discourses Lord Newhall[95] _strongly on the law
of nature_,” &c.
‘Again, upon the 23rd of January 1737, he writes: “I can assure you
that when Lord Primrose left this town, he stayed all that day with
Lord J[ustice] C[lerk],[96] and went to Andrew Broomfield at night,
and went off post next morning; and what made him despair of getting
anything done was, that it has been so long delayed, after promising so
frankly, when he knew the one could cause the other trot to him like
a penny-dog when he pleased. But there’s another hindrance: I suspect
much Penty[97] has not been in town as yet, and I fancy it’s by him the
other must be managed. The Ld. J[ustice] C[lerk] is frank enough, but
the other two are —— clippies. I met with Bavelaw and Mr William on
Tuesday last. I could not persuade the last to go to a wine-house, so
away we went to an aquavity-house, where I told Mr Wm. what had passed,
as I had done before that to Bavelaw. They seemed to agree nothing
could be done just now, but to know why Lord Drummore[98] dissuaded
bringing in the plea last winter. _I have desired Lord Haining to
speak_, but only expect his answer against Tuesday or Wednesday.”
‘It is not our intention to pursue these remarks further, although we
believe that judicial corruption continued long after the Union. We
might adduce Lord President Forbes as a witness on this point, who, one
of the most upright lawyers himself, did not take any pains to conceal
his contempt for many of his brethren. A favourite toast of his is
said to have been: “Here’s to such of the judges as don’t deserve the
gallows.” Latterly, the complaint against the judges was not so much
for corrupt dealing, with the view of enriching themselves or their
“pet” lawyer, but for weak prejudices and feelings, which but ill
accorded with the high office they filled.
‘These abuses, the recapitulation of which may amuse and instruct, are
now only matter of history—the spots that once sullied the garments of
justice are effaced, and the old compend, “Show me the man, and I’ll
show you the law,” is out of date.’