’TWEEN BENCH AND BAR—A CHAPTER OF LEGAL FACETIÆ
The Scottish Law Courts have been long and justly celebrated as an arena
of wit and humour of the richest sort. But the facetious counsel and the
witty and eccentric judge, like the humorous and quaint divine, no longer
prevail; and the current collector of the native legal facetiæ who would
present brilliant specimens and illustrations must riddle the records
of past generations to find them, or else adopt the simpler method,
which has been most frequently followed, of riddling the riddlings of
those who have successfully riddled the records before them. Despising
neither of the courses indicated, I shall partially here pursue both;
and, first of all, will turn to the _Memorials_ of the late Lord Henry
Cockburn, the most extraordinary passages of which perhaps are the
writer’s memories of the law lords. Of Lords Braxfield, Eskgrove, Eldon,
Hermand, and Meadowbank, and others, most of whom he knew personally,
Cockburn tells some “unco” stories. And, surely, if we may express
regret that the wit and humour of some of those are not inherited by
the present occupiers of the judicial bench, we may be very thankful
that the brutal severity which was practised by the first named is no
longer possible. Braxfield’s maxim seems to have been, “Hang a thief
when he’s young and he’ll no steal when he’s auld.” It may be doubted,
says Cockburn, if he was ever so much in his element as when tauntingly
repelling the last despairing claim of a wretched culprit, and sending
him to Botany Bay or the gallows with an insulting jest, over which he
would chuckle the more from observing that correct people were shocked.
To an eloquent culprit at the bar he once said—“Ye’re a vera clever
chield, my man, but ye wad be nane the waur o’ a hanging,” and perhaps he
got it. “Let them bring me prisoners and I’ll find them law,” used to be
openly stated as his suggestion when an intended political prosecution
was marred by anticipated difficulties. And Mr. Horner, the father of
Francis, who was one of the juniors in one Mair’s case, told that when
he was passing the bench to get into the box, Braxfield, who knew him,
whispered, “Come awa’, Mr. Horner, come awa’, and help us to hang ane o’
thae damned scoondrels.” In another political case it was pled in defence
that “Christianity was an innovation, and that all great men had been
reformers, even our Saviour himself.” “Muckle He made o’ that,” chuckled
Braxfield, in an under voice, “He was hangit.”
Eskgrove succeeded Braxfield as the head of the Criminal Court, and
a more ludicrous personage surely never existed. “His face,” says
Cockburn, “varied according to circumstances, from a scurfy red to
a scurfy blue; the nose was prodigious; the underlip enormous, and
supported by a huge, clumsy chin, which moved like the jaw of an
exaggerated Dutch toy.” When addressing a jury, if a name could be
pronounced in more ways than one he gave them all. Syllable he invariably
called sylla-_bill_, and wherever a word ended with the letter “g,”
the letter was pronounced, and strongly so. And he was very fond of
meaningless successions of adjectives. The article “a” was generally
made into _one_; and a good man he would describe as “one excellent, and
worthy, and amiabill, and agreeabill, and very good man.” Condemning a
tailor to death for murdering a soldier by stabbing him, he addressed him
thus:—“And not only did you murder him, whereby he was bereaved of his
life, but you did thrust, or push, or pierce, or project, or propell the
le-thal weapon through the belly-band of his regimen-tal breeches, which
were his Ma-jes-ty’s!”
In the trial of Glengarry, for the murder of Sir Alexander Boswell in
a duel, a lady of great beauty was called as a witness. She came into
court veiled. But before administering the oath, Eskgrove gave her this
exposition of her duty in the situation: “Young woman, you will now
consider yourself as in the presence of Almighty God, and of this High
Court. Lift up your veil; throw off all modesty, and look me in the
face.” Having to condemn two or three persons to death who had broken
into a house at Luss, and assaulted Sir James Colquhoun and others, and
robbed them of a large sum of money, he first, as was his almost constant
practice, explained the nature of the various crimes—assault, robbery,
and hamesucken—of which last he gave them the etymology. He then reminded
them that they had attacked the house and the persons within it, and
robbed them, and then came to this climax—“All this you did; and God
preserve us! joost when they were setten doon to their denner!”
A common arrangement of his logic, when addressing juries, was—“And
so, gentlemen, having shown you that the panell’s argument is utterly
impossibill, I shall now proceed to shew you that it is extremely
improbabill.”
Brougham delighted to torment him. Retaliating, Eskgrove sneered at
Brougham’s eloquence by calling it, or him, _the Harangue_. In his
summing up he would say—“Well, gentlemen, and what did the Harangue
say next? Why, it said this——.” Candidly, however, he had to declare
that “that man Broom, or Broug-ham, was the torment of his life.” Lord
Eskgrove, of course, was an unconscious humourist. So also in great
measure was Lord Hermand. When _Guy Mannering_ was first published,
Hermand was so much delighted with the picture of the old Scottish
lawyers in the novel that he could talk of nothing else but Pleydell and
Dandie Dinmont and High Jinks for many weeks. He usually carried a volume
of the work about with him; and one morning on the bench his love for it
so completely got the better of him that he lugged in the subject—head
and shoulders—into the midst of a speech about a dry point of law.
Getting warmer every moment he spoke of it, he at last plucked the volume
from his pocket, and, in spite of the remonstrances of his brethren,
insisted upon reading aloud the whole passage for their edification. He
went through the task with his wonted vivacity, gave great effect to
every speech and most appropriate expression to every joke; and, when it
was done, the court had no difficulty in confessing that they had very
seldom been so well entertained. During the whole scene, Mr. Walter Scott
himself was present, in his official capacity as Clerk of the Court of
Session, and was seated close under the Judge.
Before Hermand was elevated to the bench, and was known among men as Mr.
George Fergusson, his addresses were delivered with such animation and
intense earnestness that when it was known he was to speak the court was
sure to be filled. His eagerness made him froth and splutter, and there
is a story to the effect that, when he was pleading in the House of
Lords, the Duke of Gloucester, who was about fifty feet from the bar, and
always attended when “Mr. George Fergusson, the Scotch counsel,” was to
speak, rose and said, with pretended gravity, “I shall be much obliged to
the learned gentleman if he will be so good as to refrain from spitting
in my face.”
Hermand was very intimate at one time with Sir John Scott, afterwards
Lord Eldon. They were counsel together, says Cockburn, in Eldon’s first
important Scotch entail case in the House of Lords. Eldon was so much
alarmed that he wrote his intended speech, and begged Hermand to dine
with him at a tavern, where he read the paper and asked him if it would
do.
“Do, sir? It is delightful, absolutely delightful! I could listen to it
for ever! It is so beautifully written and so beautifully read! But,
sir, it is the greatest nonsense! It may do very well for an English
Chancellor; but it would disgrace a clerk with us.”
Bacon’s advice to judges is to “draw your law out of your books, not out
of your brains.” Hermand generally did neither. He occasionally showed
great contempt for statute law, and would exclaim, “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_, my Laards. I _feel_ my
law—_here_, my Laards”—striking his heart.
Drinking, in this old fellow’s estimation, was a virtue rather than a
vice; and when speaking to a case where one Glasgow man was charged with
stabbing another to the death in the course of a night’s carousal, “They
had been carousing the whole night,” exclaimed Hermand, “and yet he
stabbed him! After drinking a whole bottle of rum with him! Good God, my
Laards, if he will do this when he’s drunk, what will he not do when he’s
sober?”
William Maconochie (Lord Meadowbank), was an able but curious man. Before
he spoke, Cockburn says, it would often have been a fair wager whether
what he said would be reasonable or extravagant. All that was certain
was, that even his extravagance would be vigorous and original, and he
had more pleasure in inventing ingenious reasons for being wrong than
in being quietly right. Sir Harry Moncrieff, who was present at his
marriage, told that the knot was tied about seven in the evening, and
that at a later hour the bridegroom disappeared, and on being sought for,
was found absorbed in the composition of a metaphysical essay on “pains
and penalties.”
There has been no more famous legal notability in Scotland than John
Clerk of Eldin, afterwards Lord Eldin. When Meadowbank was yet Mr.
Maconochie, he one day approached his facetious professional brother,
Clerk, and after telling him that he had prospects of being raised to the
bench, asked him to suggest what title he should adopt.
“Lord Preserve Us!” said Clerk, and moved off.
When pleading before the same learned senator, after he had assumed the
judicial title of Lord Meadowbank, it was suggested to Clerk by his
Lordship that in the legal document which he had submitted to the Court
he might have varied the frequently recurring expression “also,” by the
occasional use of “likewise.”
“I beg your pardon, my Lord,” said Clerk, “but the terms are not always
synonymous.”
“In every case,” retorted Meadowbank, gruffly.
Clerk still dissented.
“Then cite an instance,” demanded the Judge.
“Well,” remarked Clerk, doubtless chuckling inwardly the while, “your
Lordship’s father was a Judge of Session. You are a Judge of Session
_also_, but not _likewise_.”
Clerk’s ready wit helped him well on many an occasion. In pleading, he
frequently dropped into broad Scotch, and once when arguing a Scotch
appeal case before the House of Lords, in which his client claimed the
use of a mill-stream by a prescriptive right, he contended that “the
_watter_ had run that way for forty years.”
“Indeed,” argued Clerk, “naebody kens how lang, and why should my client
now be deprived of the _watter_?” etc.
The Chancellor, much amused at the pronunciation of the Scottish
advocate, in a rather bantering tone, asked—“Mr. Clerk, do you spell
water in Scotland with two t’s?”
Nettled at this hit at his national tongue, Clerk immediately
replied—“No, my Lord, we dinna spell _watter_ in Scotland wi’ twa t’s,
but we spell _manners_ in Scotland wi’ twa n’s.”
On one occasion, when he had been pleading a case before Lord Hermand,
already mentioned, after he had finished and sat down to receive
judgment, his Lordship took up the case rather warmly, and when in the
heat of an excited harangue, the saliva from his lips was spurted in the
face of the sarcastic advocate.
“I have often heard o’ the dews o’ Hermon,” remarked Clerk, “but I never
felt them before.”
Mr. James Wolfe-Murray became a Judge of the Court of Session, under the
title of Lord Cringletie. When he was appointed, doubts were expressed by
some as to his legal acquirements, and Clerk expressed his view in the
following clever epigram:—
“Necessity and Cringletie
Are fitted to a tittle;
Necessity has nae law,
Cringletie has as little.”
When in his sixty-fifth year he was raised to the Bench, Clerk took the
title of Lord Eldin, from his family estate. Some one remarked to him
that his title nearly resembled that of the Lord-Chancellor Eldon.
“The difference,” said he, “is all in my eye (i).”
Clerk had a halt in his gait, and when passing along on the street one
day, he overheard a lady remark to a friend—“That’s John Clerk, the lame
lawyer.”
He was about in a minute.
“No, madam,” said he, “I am a lame man, but not a lame lawyer.”
Quite right; _also_, but not _likewise_.
Another out-of-doors story in connection with this witty advocate refers
to an occasion when he had been dining rather freely at the house of
a friend in Queen Street, Edinburgh. Wending his way homewards “early
in the morning, merrily, O,” he failed to discover his own house in
Picardy Place, and observing a housemaid busily engaged in cleaning a
doorstep—“My good girl,” says he, “can you tell me whaur John Clerk
lives?”
“Awa’ wi’ yer nonsense,” exclaimed the astonished girl, “you’re John
Clerk himsel’.”
“That’s true enough, lassie,” said he, “but it’s no John Clerk I’m
seekin’ for, it’s John Clerk’s house.”
Sir James Colquhoun, Bart. of Luss, Principal Clerk of Session, was one
of the odd characters of his time, and was much teased by the wags of the
Parliament House. On one occasion, whilst Henry Erskine was at the Inner
House Bar, during the advising of some important case he amused himself
by making faces at Sir James, who was sitting at the Clerk’s table,
beneath the Judges. His victim was much annoyed at the strange conduct of
the tormenting lawyer, and, unable to bear it, disturbed the gravity of
the Court by rising, 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.
Peace ensued, and the advising went on, when Sir James, casting his
eyes towards the Bar, witnessed a new grimace from his tormentor, and
convulsed Bench, Bar, and audience by roaring out, “There, my Lord, he’s
at it again!”
Erskine was remarkable for his ready wit and stinging repartee. Like
the illustrious John Clerk of Eldin, he was indifferent to the rules of
pronunciation, and in pleading before a learned senator he spoke of a
_curator bonis_.
“Allow me to correct you,” said his Lordship, “the word is _curaator_.”
“Thank you, my Lord,” said Erskine. “I doubt not your Lordship is right,
since you are so learned a _senaator_, and so eloquent an _oraator_.”
Mr. Erskine of Alva, subsequently Lord Bargaig, was a person of short
stature. Having been counsel in a case in which Henry Erskine appeared
on the opposite side, he was obliged on account of the crowded state of
the court to have a chair brought forward on which to raise himself when
addressing the judge.
“This,” remarked Henry, “is one way of rising at the Bar.”
To a Judge of the Commissary Court, who talked in an inflated and pompous
manner, who told him that his brother in the country had fallen from a
stile and sprained his foot—
“It was fortunate for your brother,” remarked Henry, “that it was not
from your _style_ he fell, or he had certainly broken his neek.”
For the foregoing anecdotes relating to this well-known witty lawyer, as
well as for the one that follows, I am indebted to the late Dr. Charles
Rogers’ _Illustrations of Scottish Life_. On a change of ministry,
Erskine was appointed to succeed Harry Dundas (subsequently Lord
Melville), as Lord-Advocate. On the morning of his appointment, he met
Dundas in the Parliament House, who had resumed the ordinary gown worn by
all practitioners at the Scottish Bar, excepting the Lord-Advocate and
the Solicitor-General. After a little conversation, Erskine remarked that
he must be off to order his silk gown.
“’Tis not worth your while,” said Dundas, “for the short time you’ll want
it; you had better borrow mine.”
“I have no doubt your gown,” replied Erskine, “is made to _fit any
party_; but however short may be my time in office, it shall not be
said of Henry Erskine that he put on the _abandoned habits_ of his
predecessor.”
The late Lord Rutherford was a very able lawyer, but exceedingly affected
in his manner and speech, and when addressing either the Bench or a jury
spoke extra-superfine English. When, however, he broke out in a passion,
which was by no means an unusual occurrence, he expressed his feelings in
the broad vernacular. Lord Cockburn said to him one day, “It is strange,
Rutherford, that you should pray in English and swear in Scotch.”
Mr. Strang and Mr. Bruce were two members of the faculty in Parliament
House, Edinburgh, who were nearly equally matched in cleverness, but
most unlike as to stature. Strang was quite an Anak in height, whilst
Bruce was so diminutive that he was facetiously known as “Zaccheus.” When
Sheriff Barbour, of Inverness, was appointed a Lord of Session, under the
title of Lord Skelton, he was naturally ignorant of the new members of
the bar in Parliament House, from which he had been away for twenty years.
On an early day after Lord Skelton began his duties in the Court
of Session he was hearing a case in which Bruce appeared for the
prosecution, while Strang had been retained for the defence. Bruce, duly
arrayed in wig and gown, the latter of which effectually hid his short
legs, was standing behind the Advocate’s table, and had got under weigh
in his opening remarks for the prosecution, when his Lordship interposed,
with the slightest manifestation of feeling—
“It is usual, Mr. Bruce, for an advocate to stand when he addresses the
Court.”
“I am standing, my Lord,” replied Bruce, deferentially.
“Oh, I beg a thousand pardons!” resumed Lord Skelton, feeling bitterly
his unfortunate remark, and bowing his head for a few minutes towards his
papers.
Bruce continuing his opening address, his Lordship took courage and
looked up, when he saw at the other end of the bar the tall figure
of Strang, towering up above his fellows. Thinking he had risen to
interpose some remark against the opposing counsel’s speech, he hurriedly
said—
“Kindly sit down, Mr. Strang; Mr. Bruce is before the Court just now. I
shall gladly hear you afterwards.”
“I am sitting, my Lord,” explained Strang, to the utter discomfiture of
the astounded judge, and amidst the roars of laughter of all the members
of the bar.
It was of these two able fellows that a waggish brother-barrister made
the impromptu epigram—
“To the heights of the law, though I hope you will rise,
You will never be judges, I’m sure of a(s)size.”
Lawyers, like editors, have been frequently made the butt of the
satirist; but illustrations of their wit and humour, such as are here
deduced—and they could be multiplied almost to any extent—show how well
able they have been to hold their own—yea, to rout the enemy. Jeffrey was
frequently more than equal to the occasion. When addressing a jury in a
certain trial, he had occasion to speak freely of a military officer who
was a witness in the cause; and having frequently described him as “this
soldier,” the witness, who was present, could not restrain himself, but
started up, and called out—
“Don’t call me a soldier, sir; I am an officer!”
“Well, gentlemen of the jury,” proceeded Jeffrey, “this officer who,
according to his own statement, is no soldier,” etc.
And what cause could the livelier of them not extract fun from? At a jury
trial in the town of Jedburgh, in which Moncrieff, Jeffrey, and Cockburn
were engaged as counsel, while the former was addressing the jury,
Jeffrey passed a slip of paper to Cockburn, with the following case for
his opinion:—
“A legacy was lately left by an old lady to the _Peer_ of Aberdeen.
As the will was written by the Dowager herself, and by no means
distinguished for correctness of orthography or expression, a dispute
has arisen as to the intent of the testator; and the following claimants
have appeared for the legacy:—1st, the Earl of Aberdeen; 2nd, the
Commissioners for erecting the pier at Aberdeen; and, 3rd, the Manager
of the Charity Workhouse, who grounds his right on the fact that the old
lady was in the habit, _more majorum_, of pronouncing poor _peer_. To
which of the parties does the money belong?”
Cockburn immediately wrote in answer—“To none of the three; but to
the Horticultural Society of Scotland for the purpose of promoting
the culture of a sort of fruit called, or to be called, _the Pear of
Aberdeen_.”
Many humorous instances of attempts to evade the law, and successful
and unsuccessful attempts to get the better of it, could be cited; but
most of them, of necessity, have been wicked as well as witty, and lie
somewhat outside of my subject. One or two, however, may be tolerated,
and the first, which reveals a biter neatly bitten, will be enjoyed. A
dealer having hired a horse to a lawyer, the latter, either through bad
usage or by accident, killed the beast, upon which the hirer insisted
on payment of its value; and if it was not convenient to pay costs,
he expressed his willingness to accept a bill. The writer offered no
objection, but said he must be allowed a long date. The hirer desired him
to fix his own time, whereupon the writer drew a promissory note, making
it payable at the day of judgment. An action ensued, when, in defence,
the lawyer asked the judge to look at the bill.
Having done so the judge replied—
“The bill is perfectly good, sir; and, as this is the day of judgment, I
decree that you pay to-morrow.”
Steenie Stuart, a recently deceased and well-known inhabitant of a
populous northern burgh, got “roarin’ fou’ ilka pay nicht,” and, in
consequence, had frequently to appear and answer for his sins at the bar
of the Police Court. As he approached the rail with a leer of recognition
and compromise in his eye one Monday morning, the magistrate hailed him
with “Here again, Steenie?”
“Ou, ay, Bailie,” Steenie replied.
“An’ are you no ashamed o’ yersel’?”
“’Deed, am I, Bailie; black ashamed.”
“Then what brings ye here ilka ither week?”
“Dinna blame me, Bailie. I canna help it. There’s a curse on the name.”
“A curse on whatna name?”
“On my name, Bailie; on the name o’ Stuart.”
“What d’ye mean, sir?”
“The Stuarts, ye ken, ha’e aye been unfortunate. James the First fell
by the hands o’ assassins in the toun o’ Perth; James the Second was
killed at the siege o’ Roxburgh Castle; James the Third was murdered by
his rebellious subjects; James the Fourth lost his life in the Battle o’
Flodden Field; James the Fifth died o’ a broken heart; Mary, puir Mary,
lost her head an’ her croon baith thegether; Charlie had neither a head
nor a croon to lose, or he wad ha’e lost the ane or the ither, or baith.”
“Ay, ay, Steenie,” interjected the witty Bailie, “there’s nae doot the
Stuarts have had a fatal habit o’ losin’ their heads an’ their croons,
but yours is a case of an especially aggravated nature. They lost nae
mair than a’e croon and a’e head each, but you ha’e lost mair heads an’
mair croons than a’ the lave putten thegether, for you lose yer head
maistly every Saturday nicht in Tam Johnstone’s public house, an’ yer
croon afore the Court here ilka Monday mornin’. It’ll no do, Steenie lad.
It’ll no do. _Five shillings, or seven days._”
A Coupar-Angus man, not many years ago, was sued for debt in the Sheriff
Court at Perth, and on the day of the trial was met by a friend on the
High Street of the Fair City.
“By the by,” said the friend, “ye’ve a case in the Coort the day.”
“Hoch! it’s owre an oor syne,” was the reply.
“An’ hoo cam’ ye on?” inquired the friend.
“I wan.”
“Ye wan!” exclaimed the surprised interrogator, who knew that the debt
was a just enough one. “Hoo did ye manage to win?”
“Daugon’d!” exclaimed the erewhile defendant, “I couldna but win; the
thing was left to my ain oath.”
Swearers, of course, who view the oath as a thing of expediency, as
evidently that man did, come in handy about Courts of Law, and not very
long since, in the same Sheriff Court, a batch of witnesses “swore”
a young man so clearly out of a charge of assault that a party in
Court, who was subsequently to be called on a similar charge, was heard
whispering to a friend—“Lord, Tam, I wad gie a pound for half an oor o’
thae witnesses.”
Witnesses are a widely various lot, and are often the source of much
amusement ’tween Bench and Bar. Great tact is required by the lawyer
who would get “the truth, the whole truth, and nothing but the truth,”
out of some of them; and this sometimes, not because of any desire on
the witnesses’ part to prevaricate, but from perfectly innocent causes.
Cockburn was exceedingly happy in the management of some of those who
hailed from country places, and one case in which Jeffrey and he were
engaged as counsel is memorable. A vital question in the cause was the
sanity of one of the parties primarily concerned.
“Is the defendant, in your opinion, perfectly sane?” said Jeffrey,
interrogating one of the witnesses, a plain, stupid-looking country man.
The witness gazed in bewilderment at the questioner, and gave no answer.
Jeffrey repeated the question, altering the words—
“Do you think the defendant is perfectly capable of managing his own
affairs?”
Still in vain.
“I ask you,” said Jeffrey, “do you consider the man is perfectly
rational?”
No answer yet.
“Let _me_ tackle him,” said Cockburn.
Jeffrey sat down, whereupon Cockburn assumed his broadest Scottish tone
and accent, and turning to the obdurate witness, began—
“Hae ye your mull wi’ ye?”
“Ou, ay!” said the awkward countryman, and diving his hand into his coat
pocket he drew forth his snuff-horn and handed it over to the witty
counsel.
“Noo, hoo lang hae ye kent John Sampson?” inquired Cockburn, tapping the
mull familiarly with his finger, and taking a pinch.
“Ever since he was that heicht,” was the ready reply, the witness
indicating with his hand the alleged altitude.
“An’ d’ ye really think noo, atween you an’ me,” said the advocate, in
his most insinuating Scotch manner, “that there’s onything ava intill the
cratur’?”
“I wadna lippen him wi’ a bull-stirk,” was the instant and brilliant
rejoinder; and Jeffrey admitted that Cockburn had fairly extracted the
essence of the evidence.
Cockburn, who entered the faculty in the year 1800, was in his day
the most eloquent and persuasive orator at the Scottish Bar. With his
impressive oratory, writes one, his expressive face and fine eye, his
mellow voice, and his pure and homely Scottish dialect, he was almost
irresistible with a jury, or in the General Assembly of the Church, where
he was often engaged as counsel. On the trial of the infamous Burke and
his wife, in 1829, for numerous murders of unfortunate creatures whom
they had lured into their den and murdered, and whose bodies they sold to
the Edinburgh doctors for dissection purposes, he acted as counsel for
the woman. The trial lasted till five in the morning of the second day,
and after sixteen or seventeen hours’ previous exertion, he addressed
the jury, in one of the most impassioned, and powerful speeches he ever
delivered. He spoke for an hour, and literally held the jury and the
audience spell-bound. His chief aim was to break down the evidence of
Hare, and his wife, who were _socii criminis_, and had been admitted
by the Crown as approvers. While the miserable woman was giving her
evidence, she had a child in her arms, who continued to scream almost
incessantly. After drawing, in scathing and terrible words, a picture of
her and Hare’s atrocities, whom he represented as the real criminals,
he ascribed the screaming of the child to terror, “as if it had felt
the fingers of the murderous hag clutching its little innocent throat.”
His peroration, delivered with a glistening eye, in tones of the utmost
solemnity and pathos, put it to the jury that there was no real evidence
except that of the approvers, and that if they found the accused guilty
upon such evidence as that of the two Hares, “these [pointing with a
tremulous hand to the accused] will be murdered, and these [pointing to
the jury] will be perjured.” Horrified as all in Court had been at the
fearful atrocities disclosed on the trial, there was, when he sat down, a
universal hum of sympathy from the large audience. His speech saved the
woman’s life; for, while the jury found the man guilty, their verdict in
the case of the woman was “not proven.”
For racy wit and humour Cockburn was equally distinguished as he was
for eloquence. On one occasion he was engaged in a case in which some
miscreant had ill-used and maimed a farmer’s cattle by cutting off
their tails. At the conclusion of a consultation, at which the farmer
was present, some conversation took place as to the disposal of the
animals. Turning to him, Cockburn said the cattle might now be sold, but
that he must be content to sell them wholesale, because he could not
_retail_ them. On another occasion he was counsel for a man accused of a
capital crime, for which, if found guilty, the punishment was death. The
evidence was quite conclusive as to the man’s guilt. When the jury had
retired to consider their verdict, his client roundly taxed him with not
having done him justice in the defence. He bore the fellow’s insolence
for some time, but at last he gave him the pithy reply—“Keep your mind
easy, my worthy friend, you’ll get _perfect justice_ about this time
six weeks”—six weeks being then the period allowed to elapse between a
sentence of death and its execution.
That recalls a story told by Dr. Rogers concerning Sir John Hay, Bart.,
at one time Sheriff-Substitute of Stirlingshire, and one of the most
facetious members of his order. Sir John had a habit, even when sitting
on the bench, of crooning, or whistling, in an undertone, one or other
of the Scottish airs. A youthful panel was in his court, found guilty
of an act of larceny, for which in those days a sentence of banishment
might be pronounced. After awarding him a sentence of imprisonment for a
period, Sir John added, “and take care you don’t come here again, my man,
or——,” and he closed the interview by humming the tune “Ower the Water
to Charlie,” affording a gentle hint, which was no doubt well enough
understood.
The Judges and Counsel engaged in our Scottish Law Courts, it has been
seen, have been a peculiarly witty and entertaining set, and the same may
be said of some of the witnesses who have passed through their fingers.
The following examination, which took place in a question tried in 1817,
in the Jury Court, between the Trustees on the Kinghorn Passage and the
town of Kirkcaldy, affords a striking illustration of the cannieness of
one.
The witness was called on the part of the trustees, and apparently full
of their interest. The counsel having heard that the man had got the
present of a coat from the clerk to the trustees before coming to attend
the trial, thought proper to interrogate him on that point; as, by
proving this, it would have the effect of completely setting aside his
testimony. The examination was as follows:—
“Pray, where did you get that coat?”
The witness (looking obliquely down on the sleeve of his coat, and from
thence to the counsel), with a mixture of effrontery and confusion,
exclaimed—
“Coat, coat, sir! Whare got I that coat?”
“I wish to know where you got that coat?”
“Maybe ye ken whare I got it?”
“No; but we wish to know from whom you got it?”
“Did ye gi’e me that coat?”
“Tell the jury where you got that coat?”
“What’s your business wi’ that?”
“It is material that you tell the court where you got that coat?”
“I’m no obleeged to tell about my coat.”
“Do you not recollect whether you bought that coat, or whether it was
given to you?”
“I canna recollect everything about my coats—whan I get them, or whare I
get them.”
“You said you remembered perfectly well about the boats forty-two years
ago, and the people that lived at Kirkcaldy then, and John More’s boat;
and can you not recollect where you got that coat you have on at present?”
“I’m no gaun to say onything about coats.”
“Did Mr. Douglas, clerk to the trustees, give you that coat?”
“Hoo do you ken onything about that?”
“I ask you, did Mr. Douglas, clerk to the trustees, give you that coat?”
“I’m no bound to answer that question, but merely to tell the truth.”
“So you won’t tell where you got that coat?”
“I didna get the coat to do onything wrang for’t; I didna engage to say
onything that wasna true.”
The Lord Chief Commissioner, when the witness was going out of the box,
called him back and observed, “The Court wish to know from you something
farther about this coat. It is not believed or suspected that you got
it improperly or dishonestly, or that there is any reason for your
concealing it. You may have been disinclined to speak about it, thinking
that there was something of insult or reproach in the question put from
the bar. You must be sensible that the bench can have no such intention:
and it is for your credit, and the sake of your testimony, to disclose
fairly where you got it. There may be discredit in concealing, but none
in telling where you got it.
“Where did you get the coat?”
“I’m no obleeged to tell about my coat.”
“True, you are not obliged to tell where you got it, but it is for your
own credit to tell.”
“I didna come here to tell about coats, but to tell about boats and
pinnaces.”
“If you do not tell, I must throw aside your evidence altogether.”
“I’m no gaun to say onything about my coat; I’m no obleeged to say
onything about it.”
Witness went away, and was called back by Lord Gillies.
“How long have you had that coat?”
“I dinna ken how lang I ha’e had my coat. I ha’e plenty o’ coats. I dinna
mind about this coat or that coat.”
“Do you remember anything near the time: have you had it a year, a month,
or a week? Have you had it a week?”
“Hoot, ay, I daresay I may.”
“Have you had it a month?”
“I dinna ken: I cam’ here to speak about boats, and no about coats.”
“Did you buy the coat?”
“I dinna mind what coat I bought, or what coat I got.”
The upshot of it was, that their lordships were forced to reject the
evidence of the witness.
Your city and burgh magistrates, too, by the sublime naturalness with
which they “open their mouth and put their foot in it,” have afforded
much fun to the world. A boy being brought before a newly-installed West
country bailie for stealing a turnip, he sentenced him to seven days’
imprisonment, adding, in profoundly solemn tones, “And may the Lord have
mercy on your soul.”
A Glasgow magistrate had a young lad brought before him accused with
abstracting a handkerchief from a gentleman’s pocket. Without waiting for
proof of the accused’s guilt, the bailie addressed him, remarking, “I
ha’e nae doot but ye did the deed, for I had a handkerchief ta’en oot o’
my ain pouch this vera week,” and passed sentence.
The same magisterial logician was on another occasion seated on the
bench, when a case of serious assault was brought before him by the
public prosecutor. Struck by the powerful phraseology of the indictment,
the bailie proceeded to say, “For this malicious crime you are fined
half a guinea.” The assessor remarked that the case had not been proven.
“Then,” continued the magistrate, “we’ll mak’ it five shillings.”
An unfortunate fellow, many years ago, appeared at the bar of the Glasgow
Police Court for being drunk and disorderly. Both the culprit and the
bailie were characters in their way. The case was conclusively proved,
and the bailie fined the man in fifteen shillings.
“Fifteen shillin’s!” exclaimed the man. “Bailie, you’re surely no’ in
earnest! Bless ye! whan will I win fifteen shillin’s to gie ye!”
“Well,” said the bailie, “I’ll make it half a guinea, and not a farthing
less.”
“Hauf a guinea! If ye fine me in hauf a guinea what’s to come o’ my puir
wife an’ weans? They maun starve; there’s nae ither way o’t!” returned
the offender, in a most lugubrious tone. “Ay, we maun a’ starve, or beg!”
“Well,” said the bailie, relenting, “I’ll make it seven and six, and not
a farthing less!”
“Seeven an’ six! That’s just the hauf o’ my week’s wages—and there’s
no’ a grain o’ meal in the hoose, nor a bit coal to mak’ it ready, even
supposin’ there was! Oh, bailie, think what an awfu’ lot seven an’ six is
to a workin’ man wi’ a sma’ family!”
“Well, well,” returned the good-natured magistrate, “I’ll make it five
shillings, and I’ll not make it a farthing less though you were the king
on the throne!”
“Weel, weel, bailie, Mary an’ me an’ the weans maun just submit,” said
the knave, pretending to have broken into tears, at the same time saying
to himself, “Blessed is he that wisely doth the poor man’s case consider.”
The soft-hearted bailie couldn’t stand the silent appeal of tears nor the
apt quotation the artful dodger had made, so, gathering together all the
poor stock of savage energy he possessed, he turned on the prisoner, and
said—
“Look here! I’ll mak’ it hauf a crown, and though you were ma ain brither
I couldna mak’ it less!”
Bailie Robertson of Edinburgh had not the advantage of an early
education, nor the prudence to conceal his ignorance. A case was brought
before him, in which the owner of a squirrel presented a claim of damages
against a person who had it in charge, but who had allowed it to escape.
The case was one of great complication, and the bailie was rather at a
loss for a time. At length, collecting his faculties, he said to the
defendant, “Hoo did it manage to get awa’?”
“The door o’ the cage was open, and it gaed oot through the window,” was
the reply.
“Then, hoo did you no’ clip its wings?”
“It’s a quadruped, your honour,” said the defendant.
“Quadruped here, or quadruped there,” argued the magistrate, “if ye
had clippit the brute’s wings it couldna hae flown awa’. I maun decide
against ye.”