Litigiousness of the Scots. Sir Daniel Macnee and jury-trial.
Scottish judges, Patrick Robertson, Cullen, Neaves, Rutherford
Clark.
The natural unreclaimed Scot is apt to be litigious. He likes to have
a ‘ganging plea,’ although the matter in dispute may not be worth
contention. He does not care to be beaten by a neighbour, even in a
trifle, and will willingly spend and be spent to secure what in the
end is but a barren victory. This liking for law can be traced far
back in history. We see it in full force during the lifetime of Sir
David Lyndsay, who satirised it and the ecclesiastical courts that
encouraged it. He recounts how when the pauper’s mare was drowned by
his neighbour, the poor man at once ran off to the consistory to lodge
his complaint, and there he ‘happinit amang a greidie menzie’:
Thay gave me first ane thing thay call _citandum_;
Within aucht days, I gat bot _lybellandum_;
Within ane moneth, I gat ad _opponendum_;
In half ane yeir, I gat _interloquendum_.
But, or thay cam half gate to _concludendum_,
The fiend ane plack was left for to defend him.
For sentence silver, thay cryit at the last.
Of _pronunciandum_, thay made me wonder faine;
But, I gat never my gude gray mear againe.[16]
[Sidenote: THE LITIGIOUS SCOT]
The same national tendency has survived down to our own times. It is
excellently pourtrayed by Scott in several of the Waverley Novels.
Dandie Dinmont, for instance, having won the ‘grand plea about the
grazing of the Langtae-head,’ was keen to have another legal tussle
with his neighbour, Jock o’ Dawston Cleuch, about a wretched bit of
land that might ‘feed a hog or aiblins twa in a good year’; not that
he valued the land, but he wanted ‘justice,’ and could ill bear to
be overridden, even in regard to what was in itself quite worthless.
The phraseology of the law courts came glibly to the tongues of men
who, like Bartoline Saddletree, picked it up from attendance in the
Parliament House, but had only an imperfect notion of what it meant.
In some cases, such as that of Poor Peter Peebles, loss of wits and
fortune, together with a parrot-like facility in repeating law terms,
was all the outcome of years of litigation.
Burns, too, has admirably indicated the litigious quarrels of his
countrymen and a thoroughly national mode of composing them when the
disputants can be induced to adopt it
When neebors anger at a plea,
An’ just as wud as wud can be,
How easy can the barley-brie
Cement the quarrel!
It’s aye the cheapest lawyer’s fee,
To taste the barrel.
From the number of writers, solicitors, and advocates who still every
year enter the legal profession, one may infer that this national
peculiarity shows no marked sign of abatement. The institution of local
courts of first instance, all over the country, has enabled the Scot to
indulge in the luxury of law, without the trouble and expense of going
up to Edinburgh. He can bring his case before the Sheriff-Substitute,
and appeal from his decision to that of the Sheriff-Principal. If
an adverse judgment from both of these officials has not damped his
enthusiasm or emptied his pocket, he has still the Court of Session
in the Scottish capital to fall back on, and can there appeal to the
Inner House; and, finally, if any fighting power should still be left
in him, he may carry his case to the House of Lords. It is obvious that
the legal system of the country has been admirably arranged for the
gratification of his litigious propensities.
[Sidenote: LAW AND LAW-COURTS]
That admirable story-teller, Sir Daniel Macnee, President of the Royal
Scottish Academy, used to delight his friends with dramatic pictures of
his experiences of law-courts and other scenes of Scottish life. It is
matter for infinite regret that his stories were never written down. I
used frequently to be privileged to hear him, and may try to give from
recollection a mere outline of one of his favourite narratives which
had reference to legal matters. He had been engaged as a juryman in a
trial, and after a long day in court had finished his duties and come
back rather tired to his hotel. He there met an old acquaintance, a
Western laird, who spoke with a strong Highland accent, and with whom
he had the following conversation:
[Sidenote: A JURY-TRIAL]
‘Ah, Mr. Macnee (it was before the painter received his knighthood),
I’m glad to see you again. But you look very weary; are you well
enough?’
‘Oh yes, thank you, I am quite well, but somewhat tired after a long
day in the jury-court’
‘A juryman! Mr. Macnee, were you a juryman? Well now, I hope you had
some personal satisfaction out of the case.’
‘I really don’t know what you mean. I had the satisfaction of serving
my turn and doing my duty; and I hope I am not likely to be called
again for some time to come.’
‘Of course, of course, you would be doing your duty, whatever. But did
you have no _personal_ satisfaction in your verdict?’
‘I am entirely at a loss to understand what you can mean. I gave the
verdict which seemed to me just, and according to the evidence.’
‘No doubt, no doubt, Mr. Macnee, you would indeed do that. But I’ll
explain by giving you an account of a case that once happened to
myself,’ and he proceeded to recount a narrative worthy of the days
‘when wretches hung that jurymen might dine.’ ‘Well, you see, there
was a man in the village near my place and his house was broken into
and a lot of valuable things were stolen from it. The police were on
the spot next morning, but for a time they could get no clue at all.
They found in the end that the last man seen at the house was a baker
in the village, and their suspicions began to fall on him. Well this
baker was a notorious radical, and he was corrupting the village with
his radical notions and theories. And I had determined, if I could
manage it anyhow, to get him away. So I was not sorry to hear that the
police were looking up the baker and his doings. At last, as they could
get nobody else to suspect, they arrested him, and after a while a day
was appointed for his trial. A jury was summoned, and I was one of the
jury; and being the chief man in the place, I was chosen as foreman.
Well, the case went to trial, and we heard all the evidence the police
could scrape together, and the jury retired to consider their verdict.
When we were all met, I said to them, “Well, gentlemen, what do you
think of the case?” And they answered to a man, “O the baker’s as
innocent as any of us.” So I looked amazed and said, “What’s that you
say, gentlemen? Innocent! I really am astonished to hear you say that.
Just let us go over the evidence.” So I went over all the facts and
inferences, bit by bit, and showed how they all made for the prisoner’s
guilt. I argued down every objection, and when they were all silenced
and convinced, we marched back into the court with a unanimous verdict
of “guilty as libelled.” You should have seen the face of the judge,
but still more, you should have seen the face of the baker. But _there_
was the verdict, and so the judge passed sentence of imprisonment on
the baker, and we have never seen him more in the village. Now, Mr.
Macnee, that’s what I mean by _personal satisfaction_!’
The Scottish judges of the type of Hermand, Braxfield, Eskgrove and
others, so vividly pictured by Lord Cockburn, and of whom so many
anecdotes have been recorded, have long passed away. One of the latest
of them was Patrick (or as he was familiarly called, Peter) Robertson,
of whose wit and humour many reminiscences have been preserved. He was
noted for his obesity which occasioned the soubriquet applied to him
by Scott. According to the well-known story, Robertson, while still an
advocate, was one day the centre of a group in the Parliament House
which he was amusing with his drollery when Scott was seen approaching.
‘Hush, boys,’ said he, ‘here comes old Peveril--I see his peak,’
alluding to the novelist’s remarkably high skull. Scott, coming up in
the midst of the general laugh which followed, asked Lockhart what was
the joke. When Robertson’s personal remark was repeated to him, Scott,
with a look at the advocate’s rotund figure, retorted with another
personality, quietly remarking, ‘Ay, ay, my man, as weel Peveril o’ the
Peak ony day as Peter o’ the Paunch.’
[Sidenote: PATRICK ROBERTSON]
In his younger days Robertson was travelling for a stage or two on
the coach from Inverness to Perth, when a number of ministers were
his fellow-passengers, bound for the General Assembly at Edinburgh.
He engaged in conversation with them, and led them to believe that he
was also a clergyman from the extreme north of Scotland. When they
reached the point at which he meant to quit the coach there was a halt
for breakfast, and Robertson was asked to say grace. He began with a
word or two of Gaelic, but as his acquaintance with that language was
but slender, he poured forth a torrent of gibberish pronounced through
his nose with an occasional Gaelic word interjected. The ministers
listened with praiseworthy decorum, uncertain what particular dialect
of Gaelic it might be, for it was one with which none of them had any
acquaintance. But while Robertson still continued his nasal monologue
the coachman’s horn blew, and the clerical guests had to hurry
breakfastless back to their seats.
In the early years of last century Gaelic was frequently heard in the
Court of Session, as Highland witnesses were often ignorant of English,
and their evidence had to be translated by interpreters kept for the
purpose. Sometimes the ignorance of English was more assumed than real.
There is a story told of Lord Cullen, long remembered for his brilliant
feats of mimicry, who had a case in court where a Highland witness
was evidently ‘hedging’ and prevaricating. The judge at last lost
his patience and asked the Gaelic expert, ‘Mr. Interpreter, will you
inquire of the witness whether he saw the thing or did not see it, if
his language is capable of so fine a distinction.’
[Sidenote: LORD NEAVES]
Another witness got the better of his cross-questioner in a simple way.
The question in dispute turned upon the identity of a particular box,
and this witness was called to prove that the nails in the box had been
made by him. The advocate for the other side ridiculed the idea that
any man could recognise his own made nails, and badgered the man into
desperation. The poor fellow at last leant across the witness-box and
asked his tormentor if he would allow him to look at a sheet of paper
lying in front of the counsel, who had been making some jottings on it.
Having got the paper into his hands, the man turned to the advocate
and asked, ‘Is that your hand o’ vrite?’ ‘Yes, it is,’ was the reply.
‘But hoo can you prove it’s yours? Could you swear to it anywhere?’ ‘Of
course I could.’ ‘Weel, then, if you can swear to your hand o’ vrite,
hoo the deevil should I no’ swear to my ain nails?’
One of the last of the old race of Scottish judges was Lord Neaves,
an excellent lawyer and accomplished scholar, with so much humour,
wit and bonhommie that he generally became the centre of any company
where he might be. One of his favourite diversions was to write songs,
which he sang at convivial gatherings, such as the Royal Society Club
in Edinburgh. Many of these appeared first in print among the pages
of _Blackwood’s Magazine_, to which he was for many years a valued
contributor, and he collected them into a little volume entitled _Songs
and Verses, Social and Scientific, by an Old Contributor to ‘Maga.’_
Some of these were inimitably clever, and as sung or chanted by him
in his cracked, unmusical voice, with appropriate gesticulations and
modulations, they were irresistibly droll. Some of the scientific
ditties, dashed off in the intervals of work in court, and sung the
same evening at the club, were brimful of fun and wit, hitting off
points in theory or in dispute with great acumen. Among these may be
mentioned ‘The Origin of Species,’ a versified account of Darwin’s
views; ‘Stuart Mill on Mind and Matter’; and ‘The Origin of Language.’
Some of the social ditties were likewise delightful, such as ‘I’m
very fond of water,’ ‘The Permissive Bill,’ ‘Let us all be unhappy on
Sunday’ (which has already been cited), and the ‘Sheriffs life at sea.’
A verse of one or two of these may be quoted here.
Pray what is this Permissive Bill
That some folks rave about?
I can’t with all my pains and skill
Its meaning quite make out.
‘O! it’s a little simple Bill
That seeks to pass _incog._
To _permit_ ME--to _prevent_ YOU--
From having a glass of grog!’
When appointed Sheriff of Orkney and Shetland, Neaves had at stated
times to proceed by steamboat from Granton to these northern isles,
and in one of the songs above enumerated he gives a humorous account of
his experiences, which shows that he was not always a good sailor.
The zephyr soon becomes a gale,
And the straining vessel groans, boys;
And the Sheriff’s face grows deadly pale
As he thinks of Davy Jones, boys.
Thinking here,
Sinking there,
Wearily, drearily,
Shakingly, quakingly;
Not from fear or sickness free
Is the Sheriff now at sea, my boys.
[Sidenote: LORD RUTHERFORD CLARK]
The late Lord Rutherford Clark was an admirable example of the cultured
lawyer, quiet and restrained in manner, with a keen sense of humour,
and a singular power of witty criticism. One evening at the house of
the late Professor Sellar, he came up to me before dinner with a grave
face, and remarked: ‘There is a geological problem that puzzles me a
good deal; perhaps you can throw some light on it. How does it come
about that all the Scottish hills with which I am acquainted are so
much higher and steeper than they used to be thirty years ago?’ Towards
the end of his life I met him on the shore at Cannes. Being a keen
golfer he had brought his clubs with him to the Mediterranean, and
enjoyed a daily game there. But the disease which carried him off had
already fastened its grip upon him, and I saw him no more.
An advocate at the Scottish bar whom I remember was a somewhat pompous
orator, and went by the name of Demosthenes. He had written a book on
_Bills_, and in the course of pleading one day in Court he had occasion
to refer to his work. In a loud voice he called out to the attendant;
‘Bring me myself on Bills.’
[Sidenote: EDINBURGH LAWYERS]
Some of the Writers to the Signet and Solicitors of the old school
still survived in my younger days. One of these characters had some
odd peculiarities. He paid his clerks more liberal salaries than were
common with other lawyers, but he insisted on unremitting attention
to duty. He used to carry a thermometer in his pocket, and from time
to time would go downstairs to the room in which the clerks worked.
If he found one of them off his stool, he would clap the thermometer
upon it, and should the mercury not rise a certain number of degrees,
he inflicted a money fine on the unfortunate occupant. But for the
large salaries, he could not have retained the men in his service, or
gratified his propensity for fines. Another venerable Writer to the
Signet had a good library, and on his shelves a fine series of the
Scottish philosophers. He insisted that if at any time a clerk should
finish his task before another piece of work was ready for him, he must
come into the library and take a book, so as not to be a moment idle.
One of the staff selected Hume’s _Essays_, but every time he put the
book away in his desk for further perusal, he found next morning that
it had been removed and replaced on the shelves. The old gentleman was
an ardent Free Churchman, and excluded Hume from the authors that his
clerks might read.