The Faculty of Advocates – The Writers to the Signet – Solicitors before the Supreme Court – The First Lords of Session – The Law Courts – The Court of Session: the Outer and Inner Houses – College of Justice – Supreme Judicature Court – Its Corrupt Nature – How Justice used to be defeated – Abduction of Lord Durie – Some Notable Senators of the Seventeenth and Eighteenth Centuries: Lords Fountainhall, Covington, Monboddo, Kames, Hailes, Gardenstone, Arniston, Balmuto, and Hermand.
THE Faculty of Advocates – who are privileged to plead in any court in Scotland, and in all Scottish appeals before the House of Lords – is a body, of course, inseparably connected, as yet, with the old Parliament House. From among that body the judges of the supreme courts and sheriffs of the various counties are selected. It is the most distinguished corporate body in Scotland, and of old, especially, was composed of the representatives alike of the landed aristocracy, the rank and intellect of Scotland; and for more than three centuries the dignity of the Scottish bench and bar has been maintained by a succession of distinguished men, illustrious, not only in their own peculiar department of legal knowledge, but in most branches of literature and science; and it has produced some men whose works are read and whose influence is felt wherever the language of Great Britain is known.
The whole internal economy of the legal bodies, and of the courts of law, is governed by the Acts of Sederunt. We find, in 1674, Charles II., in consequence of a difference having arisen between the Faculty and the Lords of Session, banished the whole of the former twelve miles from Edinburgh. The subject in dispute was whether any appeal lay from the Court of Session to the Parliament. It is obvious that in this contest between the bench and the bar, law and the practice of the court, independent of expediency, could alone be considered, and the Faculty remained banished until the unlimited supremacy of the Court should be acknowledged; but what would those sturdy advocates of the seventeenth century have thought of appeals to a Parliament sitting at Westminster?
In 1702 the Faculty became again embroiled. Upon the accession of Queen Anne a new Parliament was not summoned, that which sat during the reign of her predecessor being re-assembled. The Duke of Hamilton and seventy-nine members protested against this as being illegal, and withdrew from the House. The Faculty of Advocates passed a vote among themselves in favour of that protest, declaring it to be founded on the laws of the realm, for which they were prosecuted before Parliament, and sharply reprimanded, a circumstance which gave great offence to the nation.
The affairs of the Faculty are managed by a Dean, or President, a Treasurer, Clerk, and selected Council; and, besides the usual branches of a liberal education, those who are admitted as advocates must have gone through a regular course of civil and Scottish law.
Connected with the Court of Session is the Society of Clerks, or Writers to the Royal Signet, whose business it is to subscribe the writs that pass under that signet in Scotland, and practise as attorneys before the Courts of Session, Justiciary, and the Jury Court. The office of Keeper of the Signet is a lucrative one, but is performed by a deputy. The qualifications for admission to this body are an apprenticeship for five years with one of the members, after two years’ attendance at the University, and on a course of lectures on conveyancing given by a lecturer appointed by the Society, and also on the Scottish law class in the University.
Besides these Writers to the Signet, who enjoy the right of conducting exclusively certain branches of legal procedure, there is another, but inferior, society of practitioners, who act as attorneys before the various Courts, in which they were of long standing, but were only incorporated in 1797, under the title of Solicitors before the Supreme Courts.
The Judges of the Courts of Session and Justiciary, with members of these before-mentioned corporate bodies, and the officers of Court, form the College of Justice instituted by James V., and of which the Judges of the Court of Session enjoy the title of Senators.
The halls for the administration of justice immediately adjoin the Parliament House. The Court of Session is divided into what are named the Outer and Inner Houses. The former consists of five judges, or Lords Ordinary, occupying separate Courts, where cases are heard for the first time; the latter comprises two Courts, technically known as the First and Second Divisions. Four Judges sit in each of these, and it is before them that litigants, if dissatisfied with the Outer House decision, may bring their cases for final judgment, unless afterwards they indulge in the expensive luxury of appealing to the House of Lords.
The Courts of the Lords Ordinary enter from the corridor at the south end of the great hall, and those of the Inner House from a long lobby on the east side of it.
Although the College of Justice was instituted by James V., and held its first sederunt in the old Tolbooth on the 27th of May, 1532, it was first projected by his uncle, the Regent-Duke of Albany. The Court originally consisted of the Lord Chancellor, the Lord President, fourteen Lords Ordinary, or Senators (one-half clergy and one-half laity), and afterwards an indefinite number of supernumerary judges, designated Extraordinary Lords. The annual expenses of this Court were defrayed from the revenues of the clergy, who bitterly, but vainly, remonstrated against this taxation. It may not be uninteresting to give here the names of the first members of the Supreme Judicature:-
Alexander, Abbot of Cambuskenneth, Lord President; Richard Bothwell, Rector of Ashkirk (whose father was Provost of Edinburgh in the time of James III.); John Dingwall, Provost of the Trinity Church; henry White, Dean of Brechin; William Gibson, Dean of Restalrig; Thomas Hay, Dean of Dunbar; Robert Reid, Abbot of Kinloss; George Kerr, Provost of Dunglass; Sir William Scott of Balwearie; Sir John Campbell of Lundie; Sir James Colville of Easter Wemyss; Sir Adam Otterburne of Auldhame; Nicolas Crawford of Oxengangs; Sir Francis Bothwell (who was provost of the city in 1535); and James Lawson of the Highriggs.
The memoirs which have been preserved of the administration of justice by the Court of Session in the olden time are not much to its honour. The arbitrary nature of it is referred to by Buchanan, and in the time of James VI. we find the Lord Chancellor, Sir Alexander Seaton (Lord Fyvie in 1598), superintending the lawsuits of a friend, and instructing him in the mode and manner in which they should be conducted. But Scott of Scotstarvit gives us a sorry account of this peer, who owed his preferment to Anne of Denmark. The strongest proof of the corrupt nature of the Court is given us by the Act passed by the sixth parliament of James VI., in 1579, by which the Lords were prohibited, “No uther be thamselves, or be their wives, or servantes, to take in ony times cumming, bud, bribe, gudes, or geir, fra quhat-sum-ever person or persones presently havand, or that hereafter sall happen to have ony actions or causes persewed before them,” under pain of confiscation (Glendoick’s Acts, fol.). The necessity for this law plainly evinces that the secret acceptance of bribes must have been common among the judges of the time; while, in other instances, the warlike spirit of the people paralysed the powers of the Court.
When a noble, or chief of rank, was summoned to answer for some raid, act of treason, or murder, he would perhaps appear at the bar in a suit of mail, with as many armed men as he could muster; and the influence of clanship rendered it dishonourable not to shield and countenance a kinsman, whatever dark deed he might have done. At the trial of Bothwell, for the murder of Darnley, before the Earl of Argyll as hereditary Lord High Justice, the latter had a guard of two hundred hackbuttiers, with matches lighted, to enforce the authority of the Court; before which the former came armed, while four thousand of his followers in arms were drawn up at the door, thus enabling him to outbrave judges and jury alike.
The forcible abduction of Sir Alexander Gibson, Lord Durie, a noted lawyer (who drew up the decisions of the Court from the 11th July, 1621, to the 16th July, 1642) – that his voice and vote might be absent from the decision of a case – is well known, but told incorrectly, in the ballad on the subject. It appears that in September, 1601, Lord Durie was carried off from the neighbourhood of St. Andrews by George Meldrum younger of Dumbreck, and taken to Northumberland, where he was kept for eight days in the Castle of Harbottle, while his friends and family, unable to account for his mysterious disappearance, believed him to be dead, or spirited away by the fairies.
It has been said – with what truth it is impossible to tell – that, when Cromwell appointed eleven Commissioners (three of whom were Englishmen) for the administration of justice at Edinburgh, their decisions were most impartial; and, on hearing them lauded after the Restoration had replaced the old lords on the Bench, the President, Gilmour of Craigmillar, said, angrily, “Deil thank them – a wheen kinless loons!” The grave of one of these Englishmen, George Smith, was long pointed out in the abbey church, where he was buried by torchlight in 1657. (Lamont’s Diary).
So far down as 1737 traces of bribery and influence in the Court are to be found, and proof of this is given in the curious and rare book named the “Court of Session Garland.”
In a lawsuit, pending 23rd November, 1735, Thomas Gibson of Durie, agent for Foulis of Woodhall, writes to his employer thus:- “I have spoken to Strachan, and several of the lords, who are all surprised Sir F. (Francis Kinloch, Bart., of Gilmerton) should stand that plea. By Lord St. Clair’s advice, Mrs. Kinloch is to wait on Lady Cairnie to-morrow, to cause her to ask the favour of Lady St. Clair to solicit Lady Betty Elphingston (Elizabeth Primrose of Carrington) and Lady Dun. My lord promises to back his lady, and to ply both their lords; also Leven and his cousin Murkle (a Lord of Session in 1733). He is your good friend, and wishes success; he is jealous Mrs. Mackie will side with her cousin Beattie. St. Clair says Leven has only once gone wrong upon his hand since he was a Lord of Session. Mrs. Kinloch has been with Miss Pringle, Newhall. Young Dr. Pringle is a good agent there, and discourses Lord Newhall strongly on the law of nature.”
Lord Newhall was Sir Walter Pringle, Knight, son of the Laird of Stitchill, Lord of Session in 1718. But such would seem to have been the influences that were used to obtain decisions in the olden time; and, before quitting the subject of the Parliament House we may recall a few of the most notable senators, the memory of whose names still lingers there.
The most distinguished lawyer of the seventeenth century was undoubtedly Sir John Lauder, Lord Fountainhall, son of a bailie of Edinburgh. He was born there in 1646; and after being at the old High School in 1659, and studying law at Leyden, became a member of the Faculty of Advocates on the 5th June, 1668, from which period he began industriously to record the decisions of the Court of Session. He was one of the counsel for the Earl of Argyll in 1681, and four years after was M.P. for West Lothian. To the arbitrary measures of the Scottish Government he offered all constitutional resistance, and for his zeal in support of the Protestant religion was exposed to some trouble and peril in 1686. He firmly opposed the attempt of James VII. To abolish the penal laws against Roman Catholics in Scotland; and in 1692 was offered the post of Lord Advocate, which he bluntly declined, not being allowed to prosecute the perpetrators of the massacre of Glencoe, which has left an indelible stain on the memory of William of Orange. He was regular in his attendance during the debates on the Union, against which he voted and protested; but soon after age and infirmity compelled him to resign his place in the Justiciary Court, and afterwards that on the Bench. He died in 1722, leaving behind him MSS., which are preserved in ten folio and three quarto volumes, many of which have been published more than once.
Few senators have left behind them so kindly a memory as Alexander Lockhart, Lord Covington, so called from his estate in Lanarkshire. His paternal grandfather was the celebrated Sir George Lockhart, President of the Court of Session; his maternal grandfather was the Earl of Eglinton; and his father was Lockhart of Carnwath, author of the “Memoirs of Scotland.”
He had been at the Bar from 1722, and, when appointed to the Bench, in 1774, had long borne the reputation of being one of the most able lawyers of the age, yet he never realised more than a thousand a-year by his practice. He lived in a somewhat isolated mansion, near the Parliament Close, which eventually was used as the Post Office. Lockhart and Fergusson (afterwards Lord Pitfour, in 1764), being rival advocates, were usually pitted against each other in cases of importance. After the battle of Culloden, says Robert Chambers, “many violently unjust, as well as bloody measures, were resorted to at Carlisle in the disposal of the prisoners, about seventy of whom came to a barbarous death.” Messrs. Lockhart and Fergusson, indignant at the treatment of the poor Highlanders, and the unscrupulous measures of the English authorities to procure convictions, set off for Carlisle, arranging with each other that Lockhart should examine the evidence, while Fergusson pleaded, and addressed the jury. Offering their services, these were gladly accepted by the unfortunates whom defeat had thrown at the mercy of the Government. Each lawyer exerted his abilities with the greatest solicitude, but with little or no effect; national and political rancour inflamed all against the prisoners. The jurors of Carlisle had been so terrified by the passage of the Highland army – orderly and peaceful though it was – that they deemed everything like tartan a perfect proof of guilt; and they were utterly incapable of discriminating the amount of complicity in any particular prisoner, but sent all who came before them to the human shambles – for such the place of execution was then named – before the Castle-gate. At length one of the two Scottish advocates fell upon an expedient, which he deemed might prove effectual, as eloquence had failed. He desired his servant to dress himself in a suit of tartan, and skulk about in the neighbourhood of Carlisle, till he was arrested, and, in the usual fashion, accused of being “a rebel.” As such the man was found guilty by the English jury, and would have been condemned had not his master stood forth, and claimed him as his servant, proving beyond all dispute that he had been in immediate attendance on himself during the whole time the Highland army had been in the field.
This staggered even the Carlisle jury, and, when aided by a few caustic remarks from the young and indignant advocate, made them a little more cautious in their future proceedings. So high was the estimation in which Lockhart of Covington (who died in 1782) was held as an advocate, that Lord Newton – a senator famous for his extraordinary judicial talents and social eccentricities – when at the Bar wore his gown till it was in tatters; and when, at last, he was compelled to have a new one made, he had a fragment of the neck of the original sewed into it, that he might still boast he wore “Covington’s gown.” Lord Newton, famous in the annals of old legal convivialia, died so late as October, 1811.
Covington, coadjutor to Lord Pitfour, always wore his hat when on the Bench, being afflicted with weak eyes.
Lords Monboddo and Kames, though both learned senators, are chiefly remembered for their eccentricities, some of which would now be deemed vulgarities.
The former, James Burnet, who was raised to the Bench in 1767, once embroiled himself in a law-plea respecting a horse, which belonged to himself. He had committed the animal, when ill, to the care of a farrier, with orders for the administration of certain medicines; but the farrier went beyond these, and mixed in it a considerable quantity of treacle. As the horse died next morning, Lord Monboddo raised a prosecution for its value, and pleaded his own cause at the Bar. He lost the case, and was so enraged against his brother judges that he never afterwards sat with them on the Bench, but underneath, among the clerks. This case was both a remarkable and an amusing one, from the mass of Roman law quoted on the occasion.
Though hated and despised by his brethren for his oddities, Lord Monboddo was one of the most learned and upright judges of his time. “His philosophy,” says Sir Walter Scott, “as is well known, was of a fanciful and somewhat fantastic character; but his learning was deep, and he possessed a singular power of eloquence, which reminded the hearer of the os rotundum of the Grove or Academe. Enthusiastically partial to classical habits, his entertainments were always given in the evening, when there was a circulation of excellent Bordeaux, in flasks garlanded with roses, which were also strewed on the table, after the manner of Horace.”
The best society in Edinburgh was always to be found at his house, St. John’s Street, Canongate. His youngest daughter, a lady of amiable disposition and of surpassing beauty, which Burns panegyrised, is praised in one of the papers of the Mirror as rejecting the most flattering and advantageous opportunities of settlement in marriage, that she might amuse her father’s loneliness and nurse his old age.
He was the earliest patron of one of the best scholars of his time, Professor John Hunter, who was for many years his secretary, and wrote the first and best volume of his lordship’s “Treatise on the Origin of Languages.” When Lord Monboddo travelled to London he always did so on horseback. On his last journey thither he got no farther than Dunbar. His nephew inquiring the reason of this, “Oh, George,” said he, “I find I am noo aughty four.” The manners of Lord Monboddo were as odd as his personal appearance. He has been described as looking “more like an old stuffed monkey dressed in judge’s robes than anything else;” and so convinced is he said to have been of his fantastic theory of human tails that, when a child was born in his house he would watch at the chamber doo, in order to see it in its first state, as he had an idea that midwives cut the tails off!
He never recovered the shock of his beautiful daughter’s death, by consumption, at Braid Farm, in 1790. He kept her portrait covered with black cloth; at this he would often look sadly, without lifting it, and then to his volume of Herodotus. He died in 1799.
The other eccentric we have referred to was Henry Home, Lord Kames, who was equally distinguished for his literary abilities, his metaphysical subtlety, and wonderful powers of conversation; yet he was strangely accustomed to apply towards his intimates a coarse term which he invariably used, and this peculiarity is well noted by Sir Walter Scott in “Redgauntlet.” He was raised to the Bench in 1752, and afterwards lived in New Street, in a house then ranking as one of the first in the city. The catalogue of his printed works is a very long one.
On retiring from the Bench he took a public farewell of his brother judges. After a solemn and pathetic speech, and shaking hands all round, as he was quitting the Court, he turned round, and exclaimed, in his familiar manner, “Fare ye a’ weel, ye auld ––” here using his customary expression. A day or two before his death he told Dr. Cullen that he earnestly wished to be away, as he was exceedingly curious to learn the manners of another world; adding, “Doctor, as I never could be idle in this world, I shall gladly perform any task that may be imposed upon me in the next.” He died in December, 1782, in his 87th year.
Sir David Dalrymple, Lord Hailes, the annalist of Scotland, was raised to the Bench in 1766. He had studied law at Utrecht, and was distinguished for his strict integrity, unwearied diligence, and dignity of manner, but he was more conspicuous as a scholar and author than as a senator. His researches were chiefly directed to the history and antiquities of his native country; and his literary labours extended over a period of close on forty years. At his death, in 1792, an able funeral sermon was preached by the well-known Dr. Alexander Carlyle of Inveresk; and, as no will could be found, the heir-male was about to take possession of his estates, to the exclusion of his daughter, but some months after, when she was about to give up New Hailes, and quit the house in New Street, one was found behind a window-shutter, in the latter place, and it secured her in the possession of all, till her own death, which took place forty years after.
Francis Gardner, Lord Gardenstone, appointed in 1764, was one of those ancient heroes of the Bar, who, after a night of hard drinking, would, without having been in bed, or studying a case, plead with great eloquence upon what they had picked up from the opposite counsel. When acting as a volunteer against the Highland army, in 1745, he fell into the hands of Colonel John Roy Stewart, and was nearly hanged as a spy at Musselburgh Bridge. He was author of several literary works; but had many strange fancies, in which he seemed to indulge with a view to his health, which was always valetudinarian. He had a curious predilection for pigs, and once had a young one, which followed him like a dog wherever he went, and slept in his bed. When it attained the years and bulk of swinehood this was attended with inconvenience; but, unwilling to part with his companion, Lord Gardenstone, when he undressed, laid his clothes on the floor, as a bed for it, and that he might find his clothes warm in the winter mornings. He died at Morningside, near Edinburgh, in July, 1793.
Robert Dundas of Arniston succeeded Culloden, in 1748, as Lord President. In his days it was the practice for that high official to have a sand-glass before him on the Bench, with which he used to measure out the utmost time that was allowed for a judge to deliver his opinion; and Lord Arniston would never allow another word to be uttered after the last grain had run, and was frequently seen to shake ominously this old-fashioned chronometer in the faces of his learned brethren if they became vague or tiresome. He was a jovial old lord, in whose house, when Sheriff Cockburn lived there as a boy, in 1750, sixteen hogsheads of claret were used yearly. Of him the President Dalrymple said: “I knew the great lawyers of the last age – Mackenzie, Lockhart, and my own father, Stair – but Dundas excels them all!” (Catalogue of the Lords, 1767.) He died in 1787.
Among the last specimens of the strange Scottish judges of the last century were the Lords Balmuto and Hermand.
The former, Claud Boswell of Balmuto, was born in 1742, and was educated at the same school, in Dalkeith, with Henry Dundas, afterwards Lord Melville; and the friendship formed by the two boys there, lasted till the death of the peer, in May, 1811. He always spoke, even on the Bench, with the strongest broad Scottish accent, and when there was fond of indulging in pungent jokes. He was made a judge in 1798, and officiated as such till 1822. In the March of that year his friend and kinsman Sir Alexander Boswell of Auchinleck was mortally wounded in a duel with James Stuart of Dunearn, about a mile from Balmuto House, whither he was borne, only to die; and the venerable senator, who was then in his 83rd year, never fully recovered the shock, and died in July, 1824.
George Fergusson, Lord Hermand, succeeded Lord Braxfield in 1799, and was on the Bench during all the political trials connected with the West Country seditions of 1817. He and Lord Newton were great cronies and convivialists; but the former outlived Newton and all his old last-century contemporaries of the Bar, and was the last link between the past and present race of Scottish lawyers. On the Bench he was hasty and sarcastic. He was an enthusiast in the memories of bygone days, and scorned as “priggishness” the sham decorum of the modern legal character. He is thus mentioned in “Peter’s Letters to his Kinsfolk:” – “When ‘Guy Mannering’ came out the judge was so delighted with the picture of the life of the old Scottish judges in that most charming novel, that he could talk of nothing else but Pleydell, Dandie, and the high jinks, for many weeks. He usually carried one volume of the book 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, in the midst of a speech about some dry point of law; nay, getting warmer every moment he spoke of it, he at last fairly plucked the volume from his pocket, and, in spite of all the remonstrances of his brethren, insisted on 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. During the whole scene Sir Walter Scott was present – seated, indeed, in his official capacity – close under the judge.” He died at his little estate of Hermand, near Edinburgh, in 1827, when in his 80th year.