Blair in May of that year, appointed his successor. Erskine, who was
fifteen years Hope’s senior at the bar, being disappointed of the
preferment to which his professional standing and abilities entitled
him, after a brilliant career extending over a period of forty-four
years, retired from public life to his residence of Almond-dell in West
Lothian, where he died on 8th October, 1817, in the seventy-first year
of his age.
Erskine resided at one time in George Square, Edinburgh, next door to
No. 25, where Scott’s father lived. He removed in 1789 to No. 27 Princes
Street.
Lord Cockburn calls Erskine “the brightest luminary at our bar,” and
adds, “His name can no sooner be mentioned than it suggests ideas of
wit, with which, in many memories, the recollection of him is chiefly
associated. A tall and slender figure, a face sparkling with vivacity, a
clear, sweet voice, and a general suffusion of elegance, gave him a
striking and pleasing appearance” (“Life of Jeffrey,” vol. i., p. 91).
Erskine was twice married; his first wife, Christian, was the only
daughter of George Fullerton of Broughton Hall, by whom he had several
children, one of whom, Henry David, succeeded to the Earldom of Buchan
on the death of his uncle, David Steuart Erskine, eleventh earl, in
1829. By his second wife he had no children.
* * * * *
ALEXANDER WIGHT, advocate (died 1793), was the son of David Wight,
writer, Edinburgh. He was admitted a member of the Faculty of Advocates
on 2nd March, 1754, and was subsequently appointed Solicitor-General to
the Prince of Wales. He was vice-president of the Antiquarian Society,
and was also a director of the Musical Society. He is said to have been
long distinguished as an eminent counsel. He died at Edinburgh on 18th
March, 1793.
Wight was well known as a legal writer, and was the author of “A
Treatise on the Laws Concerning the Election of the Different
Representatives sent from Scotland to the Parliament of Great Britain,
with a Preliminary View of the Constitution of the Parliaments of
England and Scotland before the Union of the two Kingdoms,” dedicated to
Lord Mansfield (Edinburgh, 1773, 8vo); and also of “An Inquiry into the
Rise and Progress of Parliament chiefly in Scotland, and a Complete
System of the Law Concerning the Election of the Representatives from
Scotland to the Parliament of Great Britain” (Edinburgh, 1784, fol.).
Cosmo Innes says of him--“If we did not know his unhappy end we should
call Alexander Wight, the author of the ‘Law of Elections’ and ‘History
of Parliament,’ the most sensible, dispassionate, and clear-headed of
historical lawyers. He had great difficulties to contend with in writing
too early for correct versions of our Acts of Parliament; and the
curious charters appended to his volume lose much of their value by the
extreme inaccuracy of the only readings which he could procure”
(“Lectures on Scotch Legal Antiquities,” 1872, p. 11).
Wight is mentioned in “The Court of Session Garland” (1839, p. 47). It
is recorded by Chambers in his “Traditions of Edinburgh” (1825, vol.
ii., p. 159) that Wight was one of the earliest settlers in the New
Town, where he built one of the houses on the south side of St. Andrew
Square. He chose the situation of his new residence with a view to
having the ancient part of the city still within sight, and especially
St. Giles’ steeple and clock, which had for many centuries directed the
motions of his legal predecessors. In order to prevent the intermediate
line of Princes Street from interrupting his beloved prospect, he
purchased the feu of the ground which immediately intervened, and
erected that house now occupied by the Sun Insurance Office (No. 40
Princes Street) upon it with a flat and low roof.
* * * * *
CHARLES HAY, Lord Newton (1747-1811), son of James Hay of Cocklaw,
Writer to the Signet, was born in 1747. After the usual preparatory
course of education, he passed as an advocate on 24th December, 1768,
having just attained his majority; but, unlike most young practitioners,
Hay had so thoroughly studied the principles of law that he was
frequently heard to declare he was as good a lawyer at that time as he
ever was at any later period. He soon became distinguished by his
strong, natural abilities, as well as by his extensive knowledge of his
profession, which embraced alike the minutest forms of the daily
practice of the Court and the highest and most subtle points of
jurisprudence. He was promoted by the Fox Administration to the bench on
the death of David Smythe of Methven, and took his seat, with the
judicial title of Lord Newton, on 7th March, 1806. This appointment was
the only one which took place in the Court of Session during what was
termed the reign of “The Talents”--a circumstance on which it is said he
always professed to set a high value. Newton died unmarried at Powrie,
in the county of Forfar, on the 19th of October, 1811.
Hay was, during the whole course of his life, a staunch Whig of the old
school. Whilst at the bar his opinions were probably never surpassed for
their acuteness, discrimination, and solidity; and as a judge he showed
that all this was the result of such a rapid and easy application of the
principles of law as appeared more like the effect of tuition than of
study and laborious exertion.
Newton possessed an extraordinary fund of good humour, amounting almost
to playfulness, and entirely devoid of vanity or affectation. There was
a strong dash of eccentricity in his character, but his peculiarities
appeared in the company of so many estimable qualities that they only
tended to make him more interesting to his friends. He possessed great
bodily strength and activity till the latter years of his life, when he
became excessively corpulent.
Cockburn calls him “a man famous for law, paunch, whist, claret, and
worth,” and adds, “In private life he was known as ‘The Mighty.’ He was
a bulky man with short legs, twinkling eyes, and a large purple visage;
no speaker, but an excellent legal writer and adviser. Honest,
warm-hearted, and considerate, he was always true to his principles and
his friends. But these and other good qualities were all apt to be lost
sight of in people’s admiration of his drinking. His daily and flowing
cup raised him far above the evil days of sobriety on which he had
fallen, and made him worthy of having quaffed with the Scandinavian
heroes” (“Memorials of his Time,” 1856, p. 223).
Many quaint anecdotes are told of him. On the bench he frequently
indulged in a certain degree of lethargy, and on one occasion a young
counsel, who was pleading before the Division, confident of a favourable
judgment, stopped his argument, remarking to the other judges on the
bench, “My Lords, it is unnecessary that I should go on, as Lord Newton
is fast asleep.” “Ay, ay,” cried Newton, “you will have proof of that by
and by,” when, to the astonishment of the young advocate, after a most
luminous review of the case, he gave a very decided and elaborate
judgment against him. The following story, says Chambers, was once told
of Lord Newton by Dr. Gregory to King George the Third, who laughed at
it very heartily. A country client coming to town to see him, when at
the bar, upon some business, found on inquiry that the best time for the
purpose was at four o’clock, just before Hay sat down to dinner. He
accordingly called at the counsel’s house at that hour, but was informed
that Mr. Hay was then at dinner, and could not be disturbed. He returned
the following day earlier in the afternoon, when to his surprise the
servant repeated his former statement. “At dinner!” cried the enraged
applicant; “did you not tell me that four was his dinner-hour, and now
it wants a quarter of it!” “Yes, sir,” said the servant, “but it is not
his _this day’s_, but his _yesterday’s_ dinner that Mr. Hay is engaged
with. So you are rather too early than too late” (“Traditions of
Edinburgh,” 1825, vol. ii., pp. 276-277).
It is said that Newton often spent the night in all manner of convivial
indulgences--drove home about seven o’clock in the morning--slept two
hours--and mounting the bench at the usual time, showed himself
perfectly well qualified to perform his duty. His Lordship was also so
exceedingly fond of card-playing that it was humorously remarked, “Cards
were his profession, and the law only his amusement.”
Newton resided for many years at No. 22 York Place, Edinburgh. His
portrait by Raeburn--“just awakened from clandestine slumber on the
bench,” as Stevenson describes it--is one of the most popular of that
master’s works.
* * * * *
JOHN CLERK, Lord Eldin (1757-1832), the eldest son of John Clerk of
Eldin, the author of the well-known “Essay on Naval Tactics,” and his
wife, Susannah Adam, the sister of the celebrated architects of that
name, was born in April, 1757. He was educated with the view of entering
the Indian Civil Service, but, his attention having been turned to the
legal profession, he was eventually apprenticed to a Writer to the
Signet. After serving his indentures, he practised for a year or two as
an accountant. Then, having qualified himself for the bar, he was
admitted a member of the Faculty of Advocates on 3rd December, 1785.
Clerk speedily rose to distinction in his profession and acquired so
extensive a practice that, it is said, at one period of his career he
had nearly one-half of the business of the Court upon his hands. On 11th
March, 1806, on the resignation of Robert Blair of Avonton, he was
appointed Solicitor-General for Scotland, an appointment which he held
during the twelve months that the Whig party was in office.
“Had his judgment been equal to his talent,” writes Lord Cockburn, “few
powerful men could have stood before him. For he had a strong, working,
independent, ready head, which had been improved by various learning,
extending beyond his profession into the fields of general literature,
and into the arts of painting and sculpture. Honest, warm-hearted,
generous, and simple, he was a steady friend, and of the most touching
affection in all the domestic relations. The whole family was deeply
marked by an hereditary caustic humour, and none of its members more
than he” (“Life of Jeffrey,” vol. i., p. 200).
His practice at the bar had been for some time falling off, and his
health had already begun to fail, when, on 10th November, 1823, Clerk
was appointed an Ordinary Lord of Session in the place of Lord
Bannatyne. Assuming the title of Lord Eldin, he took his seat on the
bench on 22nd November. As a judge he was not a success; his temperament
was not a judicial one, and his faculties at the date of his elevation
were seriously impaired. In consequence of the infirmities of age, after
five years of judicial work, he resigned in 1828, and was succeeded by
Lord Fullerton. He died unmarried at his house, No. 16 Picardy Place,
Edinburgh, on 30th May, 1832, in the seventy-sixth year of his age.
As a pleader Clerk was distinguished by strong sense, acuteness, and the
most profound reasoning. Throughout his entire career at the bar he
delighted in defying, ridiculing, and insulting the bench; and it is
recorded that his whole session was one keen and truceless conflict with
judicial authority. He was in the habit of saying whatever he liked to
certain of the Outer House judges without reproof. Lord Craigie
especially, it is said, suffered a species of torture from him that
required great natural sweetness and kindness of disposition to endure.
Clerk, however, did not come off so well with the Inner House judges.
On one celebrated occasion, having used somewhat threatening language
towards Lord Glenlee in the Second Division, he was reluctantly
compelled by the Court to make an apology to the offended judge. An
account of this remarkable scene will be found in the “Journal of Henry
Cockburn” (1874, vol. ii., pp. 207-210).
In politics Clerk was a zealous Whig. He had a considerable taste for
fine arts, occasionally amused himself in drawing, painting, and
modelling, and had such an attachment to cats that his house could
always boast of half-a-dozen feline indwellers. It is recorded that at
the sale of his collection of paintings and prints, which took place at
his house in Picardy Place after his decease, the floor of the
drawing-room gave way, and about eighty persons--one of whom was
killed--“were precipitated into the room below, to the destruction also
of much valuable china and numerous articles of vertu there displayed.”
In appearance Clerk was singularly plain; he was also very lame, one of
his legs being shorter than the other; and his inattention to dress was
proverbial. It is related that when walking down the High Street one day
from the Court he overheard a young lady saying to her companion rather
loudly, “There goes Johnnie Clerk, the lame lawyer,” upon which he
turned round and said, “Na, madam, I may be a lame man, but no’ a lame
lawyer.”
Clerk was of a convivial disposition, and the contrast between the
crabbed lawyer and the good-natured _bon vivant_ was strongly marked. He
was a member of the Bannatyne Club, of which Sir Walter Scott was
president. On one occasion, after the anniversary dinner, he is said to
have fallen down-stairs and injured his nose, which necessitated his
wearing a patch upon the organ for some time afterwards. On a learned
friend inquiring how the accident happened, Clerk replied that it was
the effect of his studies. “Studies!” ejaculated the inquirer. “Yes,”
growled Clerk; “ye’ve heard, nae doot, about _Coke upon Littleton_, but
I suppose ye never heard tell o’ _Clerk upon Stair_!”
An interesting account of Clerk’s striking personality is given by Lord
Cockburn in his “Life of Lord Jeffrey” (1852, vol. i., pp. 199-205).
* * * * *
ROBERT HAMILTON, advocate (1750-1831), son of Alexander Hamilton of
Gilkerscleugh, Lanarkshire, distantly connected with the ducal house of
Hamilton, was born about 1750. He entered the army, and was present at
the Bunker’s Hill and other battles of the American War of Independence,
where he fought gallantly, and was severely wounded. He afterwards
studied law, and became a member of the Faculty of Advocates in 1788. He
was appointed Sheriff-depute of Lanarkshire in 1797, and on his
resignation of that office, in 1822, he was appointed, on 5th February
of the same year, Principal Clerk in the First Division of the Court of
Session. He married a daughter of David Dalrymple of Westhall, one of
the Senators of the College of Justice. He died on 13th December, 1831.
Hamilton was an intimate friend of his colleague, Sir Walter Scott, who
mentions him frequently in his “Journal” as being incapacitated by gout
from attending to his professional duties. They were both Commissioners
of the Northern Lights, and went together the voyage of inspection in
1814, described by Lockhart (“Life of Scott,” 1839, vol. iv., pp. 182
_et seq._). Hamilton is noted therein as good humoured, even when
troubled with the gout; “a very Uncle Toby in military enthusiasm, and a
brother antiquary of the genuine Monkbarns breed.” On his deathbed he
gave Scott the sword he had carried at Bunker’s Hill.
Hamilton was well known as a legal writer and genealogist. He had the
credit of being a good lawyer, and, it is said, “obtained much
professional reputation for getting up the case for Hamilton of Wishaw,
which carried the peerage of Belhaven before a Committee of Privileges.
He also drew up the elaborate claim of Miss Lennox of Woodhead to the
ancient earldom of Lennox, an interesting production, but based on a
fallacy.”
APPENDIX III.
A LIST OF PUBLICATIONS ON THE SUBJECT OF OR HAVING REFERENCE TO THE
TRIAL OF DEACON BRODIE.
1. An | Account of the Trial | of | William Brodie, and George Smith, |
Before the High Court of Justiciary | on Wednesday, the 27th, and
Thursday | The 28th days of August, 1788; | For Breaking Into, and
Robbing, | The | General Excise Office of Scotland, | On the 5th Day of
March last. | Illustrated with Notes and Anecdotes. | To which is added,
| An Appendix, | Containing Several Curious Papers Relative | To the
Trial. | By A Juryman. | “Read this and tremble! ye who ‘scape the
laws.” Pope. | Edinburgh: | Printed for William Creech. M,DCC,LXXXVIII.
Quarto, pp. xii. + 125.
This, the first separate report of the trial, by William Creech, was
published on 5th September, 1788, “handsomely printed in quarto, price
3_s_., stitched,” and contained three appendices. It was originally
issued without the portrait of Deacon Brodie, but on 15th September was
advertised for sale as “embellished with a full length portrait of Mr.
Brodie by Kay, and reckoned a very striking likeness. Price, 3_s_.
6_d_., or without the engraving, 3_s_. _N.B._--The former purchasers of
the above account of this singular trial will be accommodated with the
print at 6_d_. each on sending their copies to Mr. Creech’s shop. A few
copies of the print may be had separate from the trial at 1_s_. each.”
The advertisement adds--“A most shameful and mean piracy of the above
account of the trial has appeared. This may, no doubt, in some degree be
reckoned a compliment, as it is but fair to infer that when people are
to pillage they naturally wish to take what they think most valuable;
but such a breach of good manners and such a barefaced invasion of the
right of another ought to be exposed. Application has this day been made
to the Lord Ordinary to interdict the sale of this pirated edition.”
This intimation has reference to the reports of the trial respectively
published by Stewart and Robertson, as aftermentioned.
2. The | Trial | of | William Brodie | Wright and Cabinet Maker in
Edinburgh, | and of | George Smith Grocer there, | Before the High Court
of Justiciary, | Held at Edinburgh on Wednesday the 27th, | and Thursday
the 28th August 1788; | For breaking into the General Excise-office at
Edin-| burgh on the 5th of March last. | Containing | The Evidence at
Large for and against the Prisoners; | Accurate Statements of the
Pleadings of the Counsel; | And the Opinions of the Judges on many |
important Points of Law: | With the Whole Proceedings. | By Æneas
Morrison, Writer in Edinburgh; | And Agent appointed by the Court to
conduct the | Defence of George Smith. | Edinburgh: | Printed for
Charles Elliot, Parliament Square; | and Sold by C. Elliot and T. Kay,
No. 332 Strand, | London; and all Booksellers in Town and Country. |
M,DCC,LXXXVIII.
Octavo, pp. viii. + 279.
Morrison’s report of the trial, which is much the most accurate and
complete, was published on 6th September, 1788. The editor writes in his
preface, “It was thought better to state the proceedings by way of
dialogue, in the same manner as all the English trials are published,
than in the form of narrative--the usual manner or collecting both the
depositions of witnesses and the pleadings of counsel in Scotland.” This
was an innovation which rendered the report more interesting and
valuable than its competitors. An account of the trial by Charles
Elliot, the publisher, had been announced, but it was arranged that
Morrison should prepare it, Elliot furnishing him with his MS. and
publishing the book.
It is interesting to know from a contemporary account that Deacon
Brodie, while in prison after his sentence, “has read all the
publications respecting his trial, and has given it as his opinion that
Mr. Elliot’s account was the best.”
The advertisement states--“There will be published on Monday an appendix
to this trial, which will be given gratis. Those who have already got
copies may send for the appendix.” With regard to this appendix,
Morrison has a note that he had originally intended publishing certain
interesting documents in his report, but had been informed by a friend
of Brodie’s “that Mr. Creech had engaged upon his honour not to publish
anything in his account of the trial, either in the form of anecdote or
otherwise, that did not occur in the course of the trial itself.”
Creech, however, published some additional matter, and Morrison
considered “he was entitled to put the purchasers of his account on a
footing with those who had purchased Mr. Creech’s.” The three appendices
given in the first edition of Creech’s report were therefore issued by
Morrison, as above mentioned.
3. Extract from the Accounts of the | Trial | of | William Brodie and
George Smith, | Before the High Court of Justiciary, | on Wednesday, the
27th and Thursday the 28th Days of August, 1788, | For Breaking Into,
and Robbing | The | Excise Office of Scotland, | On the 5th Day of March
last. | Illustrated with Notes and Anecdotes. | Containing also, |
Several Curious Papers | Relative to the Trial; | as also, several |
Transactions of the Criminals. | “_Read this and tremble! Ye who ‘scape
the laws._” Pope. | Edinburgh: | Printed by A. Robertson, Foot of the
Horse Wynd. | M,DCC,LXXXVIII.
Octavo, pp. vi.+72.
The advertisement of this account of the trial, which was published on
15th September, 1788 states--“The whole will be neatly printed on a fine
paper and new type in three numbers at 9d.; the second number will be
published on Saturday, the 20th; and the third on Friday, the 25th curt.
And an additional number, price 3d., containing several occurrences,
&c., from the day of their sentence till the 2nd of October next.
_N.B._--Commissions duly answered, for ready money only.”
This was one of the pirated editions referred to by Creech, and is a
literal reprint or his first edition of the trial.
The _Edinburgh Evening Courant_ of Thursday, 18th September, 1788, gives
the following account of the interdict whereby Creech endeavoured to
stop the sale of this and Stewart’s edition.:--“This day a new case in
literary property was tried before Lord Dreghorn. Mr. Creech applied for
an interdict against two piracies of his account of Brodie and Smith’s
trial. The interdict was granted, and parties were heard this day at
eleven o’clock. Mr. Creech has sent up copies to Stationers’ Hall by the
mail-coach, with orders to enter the book in Stationers’ Hall, according
to the Act of Parliament 8th of Queen Anne; but the certificate of entry
was not yet arrived. Lord Dreghorn declared both the copies complained
on were gross piracies, but as the words of the Act of Parliament were
express, he was sorry he could do nothing else than remove the interdict
to the sale of the piratical copies until the certificate of entry was
produced, and a new interdict might then be applied for, with action of
damages. By this judgment it is necessary that the book be entered in
Stationers’ Hall before publication.”
In advertising Part II. for sale the publisher made the following
announcement:--“When Mr. Robertson published the first number of the
above trial he copied it from Mr. Creech’s account of it, not knowing or
suspecting it to be property; but being since convinced that it is so,
he applied to Mr. Creech for liberty to go on with his future numbers,
which he obligingly consented to, although possessed of the certificate
of the entry in Stationers Hall. The public will be regularly served, as
advertised, with their numbers.”
4. A Full Account of the Trial of William Brodie and George Smith,
Before the High Court of Justiciary, on the 27th and 28th Days of August
1788, for Breaking into the Excise Office; With an Account of several
other Depredations committed by them and their Associates. Edinburgh: J.
Stewart, Lawnmarket, 1788. (Price, 1s. only.)
This was the other “piratical copy” of Creech’s first edition, which was
published on 15th September, 1788. No copy of the book is contained
either in the British Museum or any other public library, so far as has
been ascertained, and the above particulars are taken from a
contemporary advertisement.
The publisher announced on 18th September--“J. Stewart informs his
friends and the public that the interdict applied for by Mr. Creech was
this day removed by the Lord Ordinary, and the sale goes on as
formerly.”