Having lost it, so now we prepare for the summer, And on the 12th of June presented a reclaimer; But dreading a refuse, we gave Dundas[16] a fee, And though it run nigh it was carried to see.
In order to bring aid from usage beyond, The answers were drawn by quondam Mess John;[17]
He united with such art our law the civil, That the counsel, on both sides, would have seen him to the devil.
The cause being called, my Lord Justice-Clerk,[18]
With all due respect, began a loud bark; He appeal"d to his conscience, his heart, and from thence, Concluded to alter, but give no expence.
Lord Stonefield,[19] unwilling his judgment to podder, Or to be precipitate agreed with his brother; But Monboddo[20] was clear the bill to enforce, Because, he observed, "twas the price of a horse.
Says Pitfour[21] with a wink and his hat all agee, I remember a case in the year twenty-three, The magistrates of Banff contra Robert Carr, I remember well, I was then at the Bar.
Likewise, my Lords, in the case of Peter Caw, _Superflua non nocent_ was found to be law: Lord Kennet[22] also quoted the case of one Lithgow Where a penalty in a bill was held _pro non scripto_.
Lord President brought his chair to the plum, Laid hold of the bench and brought forward his b.u.m; In these answers, my Lords, some freedoms have been used, Which I could point out, provided I chus"d.
I was for this interlocutor, my Lords, I admit, But am open to conviction as long"s I here do sit; To oppose your precedents I quote you some clauses, But Tait[23] _a priori_ hurried up the causes.
He prov"d it as clear as the sun in the sky That the maxims of law could not here apply, That the writing in question was neither bill nor band But something unknown in the law of the land.
The question adhere or alter being put, It carried to alter by a casting vote: Baillie then mov"d.--In the bill there"s a raze, But by that time their Lordships had called a new case.
FOOTNOTES:
[1] Wight: a well-known advocate of the period.
[2] Baillie: Lord Palkemmet.
[3] Afterwards Lord Eskgrove.
[4] The father of James Boswell.
[5] Afterwards Lord Braxfield.
[6] Lord Covington.
[7] Andrew Pringle.
[8] Henry Home, who was notorious for the use of the epithet in the text.
[9] Sir David Dalrymple, author of the _Annals of Scotland_.
[10] George Brown of Coalston.
[11] Alexander Fraser of Strichen.
[12] James Erskine, who changed his t.i.tle to Lord Alva.
[13] James Veitch.
[14] Francis Garden, who founded the town of Laurencekirk in Kincardineshire.
[15] Robert Dundas, first Lord President of that name.
[16] Henry, first Viscount Melville, the friend of Pitt.
[17] A nickname for John Erskine of Carnoch.
[18] Sir Thomas Miller of Glenlee.
[19] John Campbell, raised to the Bench in 1796.
[20] Jas. Burnet of Monboddo, who had a theory that human beings were born with tails.
[21] James Ferguson of Pitfour. Owing to weak eyesight he wore his hat on the Bench.
[22] Robert Bruce of Kennet.
[23] Clerk of Session.
It was the first Lord Meadowbank, who wearying of the dry statement of a case made by Mr. Thomas W. Blair, broke in with the remark: "Declaim, sir! why don"t you declaim? Speak to me as if I were a popular a.s.sembly."
In the reign of Queen Anne there was an old Scottish judge--Lord Dun--who was particularly distinguished for his piety. Thomas Coutts, the founder of the bank now so well known, used to relate of him that when a difficult case came before him, as Lord Ordinary, he used to say, "Eh, Lord, what am I to do? Eh, sirs, I wish you would make it up!" Of another judge of much the same period, also noted for his strict observance of religious ordinances; but who, at the same time, did not allow these to interfere with his social habits, it is related that every Sat.u.r.day evening he had with him his niece, who afterwards married a more famous Scottish judge, Andrew Fletcher, Lord Milton, Charles Ross who made himself prominent in the "45" Rebellion, and David Reid, his clerk. The judge had what was, and in some parts of Scotland still is, known as "the exercise," which consisted of the reading of a chapter from the Bible, and his form of announcing the evening devotions was: "Betsy (his niece), ye hae a sweet voice, lift ye up a psalm; Charles, ye hae a gey strong voice, read the chapter; and David, fire ye the plate." Firing the plate consisted of a dish of brandy prepared for the company, of which David took charge, and while the first part of the proceedings were in progress David lighted the brandy, which when he thought it burnt to his master"s taste he blew out, and this was the signal for the others to stop, while the whole company partook of the burnt brandy. This same judge--Lord Forglen--was walking one day with Lord Newhall, in the latter"s grounds. Lord Newhall was a grave and austere man, while, as may be gathered, Lord Forglen was a medley of curious elements. As they pa.s.sed a picturesque bend of a river Lord Forglen exclaimed: "Now, my lord, this is a fine walk. If ye want to pray to G.o.d, can there be a better place? If ye want to kiss a bonny la.s.s, can there be a better place?"
[Ill.u.s.tration: SIR DAVID RAE, LORD ESKGROVE.]
Sir David Rae (Lord Eskgrove), Lord Justice-Clerk of Scotland, has been described as a ludicrous person about whom people seemed to have nothing else to do but tell stories. Sir Walter Scott imitated perfectly his slow manner of speech and peculiar p.r.o.nunciation, which always put an accent on the last syllable of a word, and the letter "g" when at the end of a word got its full value. When a knot of young advocates was seen standing round the fireplace of the Parliament Hall listening to a low muttering voice, and the party suddenly broke up in roars of laughter, it was pretty certain to be a select company to whom Sir Walter had been retailing one of the latest stories of Lord Eskgrove.
He was a man of much self-importance, which comes out in his remarks to a young lady of great beauty who was called as a witness in the trial of Glengarry for murder. "Young woman, you will now consider yourself as in the presence of Almighty G.o.d, and of this Court; lift up your veil, throw off all modesty, and look _me_ in the face."
Sir John Henderson of Fordell, a zealous Whig, had long nauseated the Scottish Civil Courts by his burgh politics. Their lordships of the Bench had once to fix the amount of some discretionary penalty that he had incurred. Lord Eskgrove began to give his opinion in a very low voice, but loud enough to be heard by those next him, to the effect that the fine ought to be 50, when Sir John, with his usual imprudence, interrupted him and begged him to raise his voice, adding that if judges did not speak so as to be heard they might as well not speak at all.
Lord Eskgrove, who could never endure any imputation of bodily infirmity, asked his neighbour, "What does the fellow say?"--"He says, that if you don"t speak out, you may as well hold your tongue."--"Oh, is that what he says? My lords, what I was saying was very simpell; I was only sayingg, that in my humbell opinyon this fine could not be less than 250 sterlingg"--this sum being roared out as loudly as his old angry voice could launch it.
A common saying of his to juries was: "And now, gentle-men, having shown you that the panell"s argument is impossibill, I shall now proceed to show you that it is extremely improbabill."
In condemning some persons to death for breaking into Sir John Colquhoun"s house and a.s.saulting him and others, as well as robbing them, Eskgrove, after enumerating minutely the details of their crime, closed his address to the prisoners with this climax: "All this you did; and G.o.d preserve us! juist when they were sitten doon tae their denner."
When condemning a tailor convicted of stabbing a soldier, the offence was aggravated in Lord Eskgrove"s eyes by the fact that "not only did you murder him, whereby he was berea-ved of his life, but you did thrust, or push, or pierce, or project, or propell, the le-thall weapon through the belly-band of his regimental breeches, which were his Majesty"s."
One of the most biting of caustic jests made by a judge of the old Court of Session of Scotland, before its reconstruction at the beginning of the nineteenth century, was uttered during the hearing of a claim to a peerage. The claimant was obviously resting his case upon forged doc.u.ments, and the judge suddenly remarked in the broad dialect of the time, "If ye persevere ye"ll nae doot be a peer, but it will be a peer o" anither tree!" The claimant did not appreciate this idea of being grafted, and abandoned the case.
To return to the stories of the earlier period of the eighteenth century, there is one told of Lord Halkerston. He was waited on by a tenant, who with a woeful countenance informed his lordship that one of his cows had gored a cow belonging to the judge, and he feared the injured animal could not live. "Well, then, of course you must pay for it," said his lordship. "Indeed, my lord, it was not my fault, and you know I am but a very poor man."--"I can"t help that. The law says you must pay for it. I am not to lose my cow, am I?"--"Well, my lord, if it must be so, I cannot say more. But I forgot what I was saying. It was my mistake entirely. I should have said that it was your lordship"s cow that gored mine."--"Oh, is that it? That"s quite a different affair. Go along, and don"t trouble me just now. I am very busy. Be off, I say!"
And there is one of the testy old Lord Polkemmet when he interrupted Mr.
James Ferguson, afterwards Lord Kilkerran, whose energy in enforcing a point in his address to the Bench took the form of beating violently on the table: "Maister Jemmy, dinna dunt; ye may think ye"re dunting it _intill me_, but ye"re juist _dunting it oot o" me_, man."
He was reputed to be dull, and rarely decided a case upon the first hearing. On one occasion, after having heard counsel, among whom was the Hon. Henry Erskine, John Clerk, and others, in a cause of no great difficulty, he addressed the Bar: "Well, Maister Erskine, I heard you, and I thocht ye were richt; syne I heard you, Dauvid, and I thocht ye were richt; and noo I hae heard Maister Clerk, and I think he"s richtest amang ye a". That bauthers me, ye see! Sae I man een tak" hame the process an" wimble-wamble it i" ma wame a wee ower ma toddy, and syne ye"se hae ma interlocutor."
"The Fifteen," as the full Bench of the old Court of Session of Scotland was popularly called, were deliberating on a bill of suspension and interdict relative to certain caravans with wild beasts on the then vacant ground which formed the beginning of the new communication with the new Town of Edinburgh spreading westwards and the Lawnmarket--now known as the Mound. In the course of the proceedings Lord Bannatyne fell fast asleep. The case was disposed of and the next called, which related to a right of lien over certain goods. The learned lord who continued dozing having heard the word "lien" p.r.o.nounced with an emphatic accent by Lord Meadowbank, raised the following discussion:
Meadowbank: "I am very clear that there was a lien on this property."
Bannatyne: "Certain; but it ought to be chained, because----"
Balmuto: "My lord, it"s no a livin" lion, it"s the Latin word for lien"
(leen).
Hermand: "No, sir; the word is French."
Balmuto: "I thought it was Latin, for it"s in italics."
[Ill.u.s.tration: HENRY HOME, LORD KAMES.]
Henry Home (Lord Kames) was at once one of the most enlightened and learned of Scottish judges of the latter half of the eighteenth century, and one of the most eccentric. His _History of Mankind_ brought him into correspondence with most of the famous men and women of his day, and yet it was his delight to walk up the Canongate and High Street with a half-witted creature who made it his business to collect all the gossip of the town and retail it to his lordship as he made his way to Court in the morning. His humour was very sarcastic, and nothing delighted him more than to observe that it cut home. Leaving the Court one day shortly before his death he met James Boswell, and accosted him with, "Well, Boswell, I shall be meeting your old father one of these days, what shall I say to him how you are getting on now?" Boswell disdained to reply. After a witness in a capital trial at Perth Circuit concluded his evidence, Lord Kames said to him, "Sir, I have one question more to ask you, and remember you are on your oath. You say you are from Brechin?"--"Yes, my lord."--"When do you return thither?"--"To-morrow, my lord."--"Do you know Colin Gillies?"--"Yes, my lord; I know him very well."--"Then tell him that I shall breakfast with him on Tuesday morning."
Lord Kames used to relate a story of a man who claimed the honour of his acquaintance on rather singular grounds. His lordship, when one of the justiciary judges, returning from the North Circuit to Perth, happened one night to sleep at Dunkeld. The next morning, walking towards the ferry, but apprehending he had missed his way, he asked a man whom he met to conduct him. The other answered, with much cordiality, "That I will do with all my heart, my lord. Does not your lordship remember me?
My name"s John ----. I have had the _honour_ to be before your lordship for stealing sheep!"--"Oh, John, I remember you well; and how is your wife? She had the honour to be before me too, for receiving them, knowing them to be stolen."--"At your lordship"s service. We were very lucky; we got off for want of evidence; and I am still going on in the butcher trade."--"Then," replied his lordship, "we may have the honour of meeting again."