Todrick’s Wynd; he next had a house in Society, Brown’s Square; and
latterly removed to New Street. His general residence was New Hailes,
Musselburgh, where he died of apoplexy, the result of sedentary habits,
on 29th November, 1792. Dr. “Jupiter” Carlyle, of Inveresk, who knew him
well, summed up his character in a funeral sermon, in which he drew a
glowing character of one of the most worthy of all the learned men of
his time.
High as his memory stands as a judge, Hailes is better known to the
world as a scholar and an author. His literary labours extend over a
period of thirty-nine years--from the date of his first publication in
1751 till that of his last in 1790. “Lord Hailes was in some respects
the very ideal of an historical inquirer. His mind was fair and
dispassionate, and he reasoned with excellent logic. You will seldom
find a mistake in fact or a conclusion not warranted by the premises in
Lord Hailes’ ‘Annals.’ He had some defects, too, and the greatest of
them is an unnecessary and repulsive dryness of narrative” (Cosmo Innes’
“Lectures on Scotch Legal Antiquities,” 1872, p. 8). His publications,
almost without exception, related to the early antiquities of
Christianity, or to the antiquities and history of Scotland, which
before his time had been critically examined by scarcely any writer. His
most important work is the “Annals of Scotland,” from Malcolm Canmore
to Robert I., issued in 1776, and continued in 1779 to the accession of
the House of Stuart. A complete catalogue of his numerous works will be
found in “Kay’s Portraits” (1877, vol. i., pp. 367-370).
* * * * *
SIR DAVID RAE, Baronet, Lord Eskgrove (1729-1804), son of the Reverend
David Rae, of St. Andrews, an Episcopalian clergyman, by his wife,
Agnes, daughter of Sir David Forbes of Newhall, was born in 1729. He was
educated at the Grammar School of Haddington, and at the University of
Edinburgh, where he attended the law lectures of Professor John Erskine
(1695-1768). He was admitted a member of the Faculty of Advocates on
11th December, 1751, and quickly acquired a considerable practice. When
the celebrated Douglas cause was before the Court he was appointed one
of the Commissioners for collecting evidence, and in that capacity
accompanied James Burnett (afterwards Lord Monboddo) and Francis Garden
(afterwards Lord Gardenstone) to France in September, 1764, for the
purpose of investigating the proceedings which had been carried on in
Paris relative to the case.
After thirty years of honourable and successful practice at the bar Rae
was, on the death of Alexander Boswell of Auchinleck, promoted to the
bench on 14th November, 1782, and assumed the title of Lord Eskgrove,
from the name of a small estate which he possessed near Inveresk. On
20th April, 1785, he was appointed a Lord of Justiciary, in succession
to Robert Bruce of Kennet. He was one of the judges before whom
Margarot, Skirving, and Gerald, the Reformers of 1793-4, were tried. He
also assisted at the trials of the Rev. Thomas Fysche Palmer for
sedition in 1793, and of Robert Watt and David Downie for high treason
in 1794.
On the death of Lord Braxfield, Eskgrove was promoted to be Lord
Justice-Clerk on 1st June, 1799, in which office he maintained the high
character he had earned while at the bar. Henry Cockburn says of him,
“Eskgrove was a very considerable lawyer; in mere knowledge probably
Braxfield’s superior. But he had nothing of Braxfield’s grasp or
reasoning, and in everything requiring force or soundness of head he was
a mere child compared with that practical Hercules” (“Memorials of his
Time,” 1856, p. 118). He was created a baronet on 27th June, 1804; died
at Eskgrove on 23rd October following, in the eightieth year of his age;
and was buried in Inveresk churchyard. He married, on 14th October,
1761, Margaret, daughter of John Stuart of Blairhall, Perthshire, by
whom he had two sons. Eskgrove resided for many years in No. 8 St. John
Street, Edinburgh.
“A more ludicrous personage,” says Cockburn, “could not exist. To be
able to give an anecdote of Eskgrove, with a proper imitation of his
voice and manner, was a sort of fortune in society. Scott in those days
was famous for this particularly. Yet never once did he do or say
anything which had the slightest claim to be remembered for any
intrinsic merit. The value of all his words and actions consisted in
their absurdity” (“Memorials,” pp. 118-119). In the trial of Glengarry
for murder 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--“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” (_ib._ p. 122). Cockburn also narrates that, having to condemn
certain prisoners who had broken into the house of Luss and assaulted
and robbed the inmates, Eskgrove 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 next
reminded them that they had attacked the house and the persons within
it, and robbed them, and then came to his climax--“All this you did, and
God preserve us! joost when they were sitten doon tae their denner!”
(_ib._ pp. 124-125). Cockburn tells many other anecdotes of him, too
numerous for quotation here; but it would be difficult to omit the
following:--On condemning a tailor to death for stabbing a soldier, the
learned judge aggravated the offence 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 propel, the lethal weapon through the
bellyband of his regimental breeches, which were His Majesty’s!” (_ib._
p. 122).
Lockhart states that, in Scott’s young days at the bar, he was counsel
for the appellant in a case before Eskgrove concerning a cow which his
client had sold as sound. In opening his case Scott stoutly maintained
the healthiness of the animal, which, he said, had merely a cough. “Stop
there,” quoth the judge; “I have had plenty healthy kye in my time, but
I never heard o’ ane o’ them coughin’. A coughin’ cow! that will never
do--sustain the Sheriff’s judgment, and decern!” (“Life of Scott,” 1839,
vol. i., p. 299).
A felicitous parody of Eskgrove’s judicial manner is contained in the
well-known “Advising” in the Diamond Beetle case (“Court of Session
Garland,” 1839, pp. 75-77). Notwithstanding, however, his many
eccentricities, he was a man of the highest integrity of character, and
“cunning in old Scots law.”
* * * * *
JOHN CAMPBELL, Lord Stonefield (died 1801), son of Archibald Campbell of
Stonefield, advocate, was admitted a member of the Faculty of Advocates
on 9th January, 1748. He was subsequently appointed Sheriff of Argyll,
an office which he long filled with the highest credit. On the death of
Charles Erskine of Tinwald he was elevated to the bench, and took his
seat, with the judicial title of Lord Stonefield, on 16th June, 1763. On
the resignation of Francis Garden of Gardenstone, he was also nominated
a Lord of Justiciary on 1st March, 1787. He resigned the latter
appointment in the year 1792, but retained his seat on the bench till
his death, which occurred at his residence in George Square, Edinburgh,
on the 19th of June, 1801, after having been for thirty-nine years a
judge of the Supreme Court.
It is somewhat remarkable that Stonefield and his two immediate
predecessors occupied the same seat on the bench for a period of ninety
years, Lord Royston having been appointed a judge in 1710, and Lord
Tinwald in 1744.
Stonefield resided at one time in Elphinston’s Court, and latterly at
No. 33 George Square, Edinburgh. Of his professional history no record
has been preserved. As a scholar his attainments were considerable, and
as a judge his decisions were marked by conciseness of expression and
soundness of judgment. He was a zealous and liberal supporter of every
scheme tending to promote the welfare and improvement of his native
country.
By his wife, Lady Grace Stuart, daughter of James, second Earl of Bute,
and sister of the Prime Minister, John (the third earl). Stonefield had
seven sons, all of whom predeceased him. The second of these was
Lieutenant-Colonel John Campbell, whose memorable defence of Mangalore,
from May, 1783, to January, 1784, arrested the victorious career of
Tippoo Sultan, and shed a lustre over the close of that calamitous war.
* * * * *
JOHN SWINTON, Lord Swinton (died 1799), son of John Swinton of Swinton,
Berwickshire, advocate, by his wife Mary, daughter of Samuel Semple,
minister of Liberton. He was admitted advocate on 20th December, 1743,
and appointed Sheriff-depute of Perthshire in June, 1754. In April,
1766, he became solicitor for renewal of leases of the Bishops’ tithes,
and solicitor and advocate to the Commissioners for Plantation of Kirks
in Scotland, in place of James Montgomery, promoted to be Lord Advocate.
He was elevated to the bench, with the title of Lord Swinton, on 21st
December, 1782, on the death of Alexander Lockhart of Covington, and, on
the promotion of Robert Macqueen of Braxfield in 1788, was also made a
Lord of Justiciary. He retained both appointments till his death.
He died at his residence, Dean House, Edinburgh, on 5th January, 1799.
Swinton married Margaret, daughter of John Mitchelson of Middleton, by
whom he had six sons and seven daughters.
Swinton was the author of the following works:--(1) “Abridgment of the
Public Statutes Relative to Scotland, &c., from the Union to the 27th of
George II.,” 2 vols., 1755; “to the 29th of George III.,” 3 vols.,
1788-90. (2) “Free Disquisition Concerning the Law of Entails in
Scotland,” 1765. (3) “Proposal for Uniformity of Weights and Measures in
Scotland,” 1779. (4) “Considerations Concerning a Proposal for Dividing
the Court of Session into Classes or Chambers, and for Limiting
Litigation in Small Causes, and for the Revival of Jury Trial in certain
Civil Actions,” 1789.
Lord Cockburn, in his “Memorials of his Time” (1856, pp. 112-113),
remarks--“These improvements have since taken place but they were mere
visions in his time, and his anticipation or them, in which, so far as I
ever heard, he had no associate, is very honourable to his
thoughtfulness and judgment.” Cockburn also observes of Swinton--“He was
a very excellent person; dull, mild, solid, and plodding; and in his
person large and heavy. It is only a subsequent age that has discovered
his having possessed a degree of sagacity for which he did not get
credit while he lived. Notwithstanding the utter dissimilarity of the
two men, there was a great friendship between him and Henry Erskine
which it is to the honour of Swinton’s ponderous placidity that
Erskine’s endless jokes upon him never disturbed.”
* * * * *
SIR ILAY CAMPBELL, Baronet, Lord Succoth (1734-1823), was born on 23rd
August, 1734. He was the eldest son of Archibald Campbell of Succoth,
W.S., by his wife, Helen, only daughter of John Wallace of Ellerslie,
Renfrewshire, and was admitted an advocate on 11th January, 1757. He
soon obtained an extensive practice at the bar, and was one of the
counsel for the appellant in the Douglas cause. During his last fifteen
years at the bar his practice had become so great that there was
scarcely any case of importance in which he was not engaged or
consulted. In 1783 he was appointed Solicitor-General, in succession to
Alexander Murray of Henderland, who was raised to the bench on 6th March
of that year, but upon the accession of the Coalition Ministry he was
dismissed, and Alexander Wight appointed in his place. Upon the fall of
the Ministry he succeeded the Hon. Henry Erskine as Lord Advocate, and
in the month of April, 1784, was elected to represent the Glasgow
District of Burghs in Parliament, where he took an active share in all
the important transactions of the time. The University of Glasgow
conferred on him the degree of Doctor of Laws in 1784, and from 1790 to
1801 he held the office of Lord Rector.
After acting as Lord Advocate for nearly six years, on 14th November,
1789, Campbell was appointed President of the Court of Session on the
death of Sir Thomas Miller, Bart., and assumed the judicial title of
Lord Succoth. He was placed at the head of the Commission of Oyer and
Terminer, issued in the year 1794, for the trial of those accused of
high treason in Scotland at that disturbed period, and was highly
commended by English lawyers for the manner in which he acquitted
himself in that capacity.
Campbell held the office of Lord President for nineteen years, and upon
his resignation was succeeded by Robert Blair of Avonton. He presided
for the last time on 11th July, 1808, being the final occasion on which
the old Court of Session, consisting of fifteen judges, sat together.
After the vacation, the Court sat for the first time in two Divisions.
On 17th September, in the same year, he was created a baronet. He died
on 28th March, 1823, in the eighty-ninth year of his age.
Campbell was an able lawyer, but without any great forensic gifts. His
written pleadings were models of perspicuity, force, and eloquence, but
his speeches though admirable in matter, were unattractive in delivery.
Cockburn says of him, “His voice was low and dull, his face sedate and
hard. Even when heaving internally with strong passion, externally he
was like a knot of wood” (“Memorials of his Time,” 1856, p. 127). He was
inferior to none of his brethren in depth of learning, and in private
life was highly esteemed.
After his retirement from the bench, Campbell presided over two
different Commissions appointed to inquire into the state of the Courts
of law in Scotland, which he conducted with his accustomed industry and
talent. He lived for many years in James’s Court, Edinburgh; but during
the later years or his life he chiefly resided at his paternal estate of
Garscube, Dumbartonshire, where he kept his active mind continually
engaged in various literary and agricultural pursuits.
Campbell was married to Susan Mary, daughter of Archibald Murray of
Cringletie, one of the Commissaries of Edinburgh, by whom he had six
daughters and two sons, one of whom only survived, viz., Sir Archibald
Campbell of Succoth, Bart., who was appointed one of the Senators of the
College of Justice on 17th May, 1809. He retired in 1825.
* * * * *
ROBERT DUNDAS of Arniston, Lord Chief Baron of the Court of Exchequer
(1758-1819), the eldest son of Robert Dundas of Arniston the younger
(1713-1787), Lord President of the Court of Session, was born on 6th
June, 1758. He was a nephew of the celebrated Henry Dundas, Viscount
Melville and Baron Dunira, whose daughter he afterwards married. He was
educated for the legal profession, and became a member of the Faculty of
Advocates on 3rd July, 1779, immediately after which he was appointed
Procurator for the Church of Scotland. On the promotion of Sir Ilay
Campbell to the office of Lord Advocate in April, 1784, Dundas, then a
very young man, succeeded him as Solicitor-General; and on the elevation
of the former to the bench as Lord President in November, 1789, the
latter was appointed to supply his place as Lord Advocate, being then
only in the thirty-first year of his age.
This office Dundas held for twelve years, during which time he sat in
Parliament as a member for the county of Edinburgh (1790-6). He
introduced into Parliament in 1793 a bill for defining and regulating
the powers of the Commission of Teinds; but, from the little countenance
extended towards it by the Ministry, and the strong opposition of the
landed proprietors, he was under the necessity of withdrawing the
measure.
Dundas conducted for the Crown, as Lord Advocate, the great prosecutions
for sedition at Edinburgh in 1793-4; and on the occasion of the riots in
connection with the Scottish Burghs Reform the windows of his house were
broken by a hostile mob (“Kay’s Portraits,” 1877, vol. i., pp. 374-5).
He acted as Dean of the Faculty of Advocates from 1796 to 1801; and, in
1799, was appointed Joint-Keeper of the General Register of Sasines for
Scotland.
On 1st June, 1801, Dundas was appointed Chief Baron of the Exchequer in
Scotland, on the resignation of Chief Baron Montgomery. He held this
office till within a short time of his death, which happened at Arniston
on 17th June, 1819, in the sixty-second year of his age. His town
residence was in St. John Street, Canongate.
The excellences which marked the character of Dundas were many, and all
of the most amiable and endearing kind. In manner he was mild and
affable, in disposition humane and generous, and in principle singularly
tolerant and liberal--qualities which gained him universal esteem. As
presiding judge of the Court of Exchequer, he on every occasion evinced
a desire to soften the rigour of the law when a legitimate opportunity
presented itself for so doing. If it appeared to him that an offender
had erred unknowingly or from inadvertence, he invariably interposed his
good offices to mitigate the sentence. “It was in his private life,
however,” says his biographer, “and within the circle of his own family
and friends, that the virtues of this excellent man were chiefly
conspicuous, and that his loss was most severely felt. Of him it may be
said he died leaving no good man his enemy, and attended with that
sincere regret which only those can hope for who have occupied the like
important stations and acquitted themselves as well.”
Dundas was one of the few individuals who were spoken favourably of by
the Rev. William Auriol Hay Drummond in his “Town Eclogue” (Edinburgh,
1804)--
“Let justice veil her venerable head,
When dulness sits aloft in robes of red!
Though with delight we upright Cockburn see,
With courteous Cullen, deep-read Woodhouselee;
In the Chief Baron’s bland, ingenuous face,
Read all the worth and talent of his race.”
Lord Cockburn, who knew him well, gives an interesting account of Dundas
in his “Memorials of his Time” (1856, pp. 156-159).
* * * * *
WILLIAM TAIT, advocate (died 1800), was the second son of Alexander
Tait, one of the principal Clerks of Session, who is referred to in
“The Court of Session Garland” (1839, p. 50). He was admitted to
Lincoln’s Inn on 4th June, 1777, and became a member of the Faculty of
Advocates on 19th February, 1780. He acted as Sheriff-depute of Stirling
and Clackmannan from 1790 to 1797, and was member of Parliament for the
Stirling District of Burghs from 3rd May, 1797, to 24th February, 1800.
He died at Exeter on 7th January, 1800.
* * * * *
JAMES WOLFE MURRAY, Lord Cringletie (1759-1836), was the second son of
Lieutenant-Colonel Alexander Murray of Cringletie, who had the honour to
command the Grenadiers at the sieges of Louisburg and Quebec, and who
died at Martinique in 1762. He was born on 5th January, 1719, and was
named after General Wolfe, whose godson he was. He became a member of
the Faculty of Advocates on 7th December, 1782, and was subsequently
appointed Judge-Admiral. He was elevated to the bench on the death of
Lord Meadowbank, and took his seat on 16th November, 1816, with the
judicial title of Lord Cringletie, which he assumed from the family
estate in Peeblesshire. He was also appointed one of the Commissioners
of the Jury Court on 12th November, 1825. He resigned his judicial
offices in 1834, and died on 29th May, 1836, in the seventy-eighth year
of his age.
Murray married, on 7th April, 1807, Isabella Katherine, only daughter of
James Charles Edward Stuart Strange, H.E.I.C.S., a godson of Prince
Charles Edward Stuart, by whom he had four sons and nine daughters. He
resided at one time in No. 17 Charlotte Square, Edinburgh.
References are made to Cringletie by Sir Walter Scott in his “Journal”
(1891, pp. 322, 546); and an entertaining _jeu d’esprit_ entitled “Notes
by Lord Cringletie of the Trial, Douglas _against_ Russell,” will be
found in “Appendix to the Court of Session Garland” (1839, pp. 7-14).
* * * * *
HENRY ERSKINE (1746-1817), second son of Henry David tenth Earl of
Buchan, by his wife, Agnes, daughter of Sir James Steuart of Goodtrees,
Bart., and brother of the celebrated Thomas Erskine, Lord Chancellor,
was born in South Gray’s Close, Edinburgh, on 1st November, 1746. After
receiving some preliminary instruction at St. Andrews, he matriculated
as a student of the United College of St. Salvator and St. Leonard on
20th February, 1760. In 1763 he proceeded to Glasgow University, and
subsequently went to Edinburgh University, where, in 1766, he attended
the classes of Professors Wallace, Hugh Blair, and Adam Ferguson. He was
admitted a member of the Faculty of Advocates on 20th February, 1768. He
had previously prepared himself for extempore speaking by attending the
Forum Debating Society established in Edinburgh, in which he gave
promise of that eminence as a pleader which he afterwards attained. His
brilliant talents soon placed him at the head of his profession; and his
legal services were as much at the command of the poor as of the
wealthy. It was said of him that “no poor man wanted a friend while
Harry Erskine lived.”
In August, 1783, Erskine was appointed Lord Advocate in the Coalition
Ministry, in succession to Henry Dundas (afterwards Lord Melville). He
held office only for a very short period in consequence of a sudden
change of Ministry in December, 1783. Anticipating this, Dundas offered,
on the day of his appointment, to lend him his own silk gown, suggesting
it was hardly worthwhile buying a new one; Erskine replied that no
doubt Dundas’s gown was made to fit any party, but that, however short
his term of office might be, he declined to put on the abandoned habits
of his predecessor. He was succeeded by Ilay Campbell (afterwards Lord
President of the Court of Session).
On 24th December, 1785, Dundas having resigned the post of Dean of the
Faculty of Advocates, Erskine was elected in his place by a decided
majority, in spite of the influence of the Government, which was exerted
against him. Lord Cockburn remarks, “His political opinions were those
of the Whigs; but a conspicuous and inflexible adherence to their creed
was combined with so much gentleness that it scarcely impaired his
popularity. Even the old judges, in spite of their abhorrence of his
party, smiled upon him; and the eyes of such juries as we then had, in
the management of which he was agreeably despotic, brightened as he
entered” (“Life of Lord Jeffrey,” 1852, vol. i., p. 93).
Erskine had been annually re-elected Dean of Faculty since 1785; but in
consequence of his having presided at a public meeting, held in
Edinburgh on 28th November, 1795, to petition against the war, his
political adversaries determined to oppose his re-election; and at the
meeting of the Faculty on 12th January, 1796, Robert Dundas of Arniston,
then Lord Advocate, was chosen Dean. Lord Cockburn, commenting on this
incident, observes--“This dismissal was perfectly natural at a time when
all intemperance was natural. But it was the Faculty of Advocates alone
that suffered. Erskine had long honoured his brethren by his character
and reputation, and certainly he lost nothing by being removed from the
official chair. It is to the honour of the society, however, that out of
161 who voted, there were 38 who stood true to justice, even in the
midst of such a scene” (“Life of Jeffrey,” vol. i., p. 94).
On the death of Lord Eskgrove in October, 1804, Erskine was offered the
office of Lord Clerk Register, but declined it, refusing to separate his
fortunes from those of his party. On the return of the Whigs to power in
1806 he once more became Lord Advocate, and was at the same time
returned member for the Dumfries District of Burghs. The downfall of the
Ministry in March, 1807, however, again deprived him of office, and the
dissolution in the following month put an end to his Parliamentary
career.