(Snmrll Cam &rl)nnl Eibrarg Cornell University Library K 835.M21 i The Court of Session garland / 3 1924 022 011 765 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022011765 Court of Session Garland The Court of Session Gaeland EDITED BY James ^AiDMENT, Esq., advocate Editor of tilt "Book of Scottish Pasquils," etc INCLUDING ALL THE SUPPLEMENTS LONDON: HAMILTON, ADAMS & CO GLASGOW: THOMAS D. MOKISON 1888 Lo IcO ^ /\ LSO 1 1 1 Pkeface. To those persons who are familiar with the Parliament House, — the Westminster Hall of Scotland, — and its inmates, the various Pieces collected together in this volume cannot be devoid of interest. Even to those not initiated in the mysteries of legal procedure, a consider- able portion of the contents will, it is hoped, be attrac- tive ; for no genuine votary of Momus can be insensible to the fun of the Justiciary Opera, — the drollery of the Diamond Beetle Case, — the exquisite point of the Parody on Hellvellyn, — the satirical wit of the Chronicles of the City, and the quiet humour of the Scofish Royal Speeches. As many passages required explanation, illustrative Notes have been given, and some few Anecdotes are introduced, the greater part of which, if not the whole, have never previously been published : — they were almost all taken from individuals connected either as practi- tioners or suiters with the Court of Session, many years since ; and are, — at least the Editor ventures to think so, worthy of preservation, as exceedingly characteristic of the parties alluded to, and the times in which they lived. 6 PREFACE. Although so few years, comparatively speaking, have elapsed, since the persons of whom traits have been pre- served, have quitted this sublunary scene, — and although many of them attained no inconsiderable degree of celeb- rity in their lifetime, it has been found, in many instances, a matter of some difficulty to obtain satisfactory informa- tion relative to them. Sometimes, too, the same story is told of different persons ; thus some versions of the anecdote at page 76, represent the late Bayn Whyt, Esq., W.S., as the mischievous person who tormented the worthy Baronet, by making faces at him ; — it is not very material whether the Barrister, or the Writer to the Signet, was the offending party, if the rest be true, — and that such a scene did actually take place cannot reason- ably be doubted ; for, besides the distinct recollection of an old gentleman on the subject, who died some years since, and from whom the story was first obtained, there are stiU surviving, various persons who, although not present, have heard the circumstances detailed, and who received them as perfectly genuine, shortly after the time when they are alleged to have taken place. The Editor has been informed, that the Competition between the Lakes, was written in imitation of the style in which the late Eobert Craigie, Esq. (afterwards Lord Craigie), and John Burnet, Esq., used to prepare their reports for the Faculty Collection of Decisions. The Editor, in concluding, has to return his very best thanks to those Gentlemen who have so obligingly furnished him with many piquant ingredients for this olla podrida. PREFACE. 7 and he begs to assure them it will be very much owing to their kindness in heightening the flavour, if the dish should be deemed worthy of the palates of those literary and legal gourmets, for whose gratification it has been chiefly prepared. NOTE TO PEEFACE. Mr. Craigie, son of John Craigie, Esq. of Kilgxaston, was admitted a member of the Faculty of Advocates in 1776. After having been several years Sheriff-depute for Dumfriesshire, he was raised to the bench in 1811. Upon his demise in 1834, he was succeeded by Lord Jeffrey. Lord Craigie was a very sound Lawyer, and his opinion in feudal matters was entitled to great considera- tion and respect. He was opposed to the judgment of his brethren in the great Bargany cause ; and his speech, which will be found in the books of reports, may be perused with much advantage. Lord Eldon was much inclined to concur in it, and it is well known that the judgment was afi&rmed in deference to the great majority of the Scotish Judges. For some reason or other Lord Craigie was in no favour with the late eccentric John Clerk (Lord Eldin), who treated him with much disrespect. — Perhaps this feeling of hostility might have arisen from their having been opposed to each other in the Eoxburghe cause ; and as Mr. Clerk was deeply interested for General Kerr, he might be somewhat nettled at the success of Mr. Craigie, 8 PREFACE. who was one of the leading counsel for his opponent ; — more especially as John's decided opinion was, that the judgment, both of the Court of Session and House of Lords, was erroneous. Notwithstanding the provocation continually given. Lord Craigie never lost his temper. His Lordship was a very bad speaker, and he delivered his remarks from the bench in such a disjointed and imperfect manner, that sometimes they were not very intelligible ; this, it is believed, is the true reason why his merits as a lawyer were not properly estimated. On the bench he was invariably kind to the members of the bar : there was no attempt to browbeat ; on the contrary, he did everything to encourage the timid youth- ful lawyer. He had no favourites — all counsel were treated alike ; and on no occasion did he ever utter one syllable to hurt the feelings of the pleader. When he had occasion to reprove, he uniformly did so as a gentle- man. In private life he was much and deservedly esteemed, — in a word, a kinder man or more worthy citizen never breathed than Eobert Craigie. PAGE CONTENTS. I. EABLY ADMINISTRATION OF JUSTICE, 13 11. LINES ON SIR JAMES STEWART, LORD ADVOCATE, 37 III. THE POOR CLIENT'S COMPLAINT, , - 39 IV. LETTER FROM THE ELYSIAN FIELDS, 43 V. SONGS IN THE JUSTICIARY OPERA, 47 VI. THE JUSTICIARY GARLAND, 59 VII. THE COURT OF SESSION GARLAND, 64 VIII. THE FACULTY GARLAND, - 72 IX. DIRECTIONS TO WRITERS' APPRENTICES, 78 X. EPIGRAM ON THE LATE HUGO ARNOT, 88 XI. SONG BETWEEN THE ACTS OF A PLA Y, 89 XII. ODE OF SAPPHO PARODIED, 91 10 CONTENTS. Xm. PAGE PATRICK O'CONNOR'S ADVICE TO HENRY M'GRAUGH, ■ 91 XIV. EPITAPH ON CHARLES HAY, ADVOCATE, 93 XV. ACTION OF DEFAMATION AND DAMAGES, 94 XVI. QUESTION OF COMPETITION, 104 XVII. LITERARY INTELLIGENCE EXTRAORDINARY, 107 XVIII. SONG BY WILLIAM ERSKINE, ADVOCATE, 109 Parody on the preceding, 110 XIX. VERSES TO GEORGE PACEWOOD, ESQ., 112 XX. HELVELLYN, 116 Parody on the preceding, 118 XXI. PARODY ON GRAY'S ELEGY, 125 XXII. DECISIONES PROVINCIALES, 131 XXIII. THE LAW CLERKS' PETITION, 139 XXIV. THE COMPLAINT, No. 2, 141 XXV. YOUR YOUNG WRITER TO THE SIGNET, 143 XXVI. THE YOUNG LAWYER'S SOLILOQUY, 148 XXVII. ROBERTSONIANA, 152 XXVIII. THE BOOK OF THE CHRONICLES OF THE CITY,- 154 CONTENTS. 11 XXIX. PAGE SPEECH AT THE OPENING OF PARLIAMENT, 164 XXX. THE KING'S SPEECH FROM THE " AGE," 170 XXXI. THE KING'S SPEECH, 176 XXXII. ACT OF SEDERUNT ANENT HUGGERS, ■ 180 XXXIII. RES JUDICATA, 181 XXXIV. THE QUEEN'S SPEECH, 188 XXXV. ACQUITTAL OF VISCOUNT MELVILLE, 191 XXXVI. EPIGRAM UPON MR. YOREE, 194 XXXVII. EPIGRAMS ON PHILIP SYNG PHISIC, 194 XXXVIII. SCRIPTURAL MOTTOES, 197 XXXIX. JUSTICE LA W, - 198 XL. A CHAPTER FROM THE BOOK OF KINGS, 206 XLI. LORD BANNATYNE'S LION, - 208 XLII. JOYS OF THE JURY COURT, 209 XLIII. SKETCH OF THE FIRST DIVISION, - 211 XLIV. THE BILL AND THE FRANCHISE, 221 XLV. BILL OF SUSPENSION, - 223 12 CONTENTS. XLVI. PAGE PROPOSED RESOLUTIONS, 225 XLVII. COMPLAINT OF THE POLLYSYLLABLE " OTHERWISE," 230 XLVIII. NIGGER'S EMANCIPATION SONG, - 233 XLIX. NOTES BY LORD CRINOLETIE, 235 L. THE AGENT'S CORONACH FOR HIS BAIN, 243 LI. REVIEW OF GLENLONELY, - 246 LII. SCENE FROM THE JURY COURT OPERA, 251 LIII. PETER'S ADDRESS TO BOBBY, 253 LIV. TURF INTELLIGENCE EXTRAORDINARY, 254 LV. BOOK OF THE PROCLAMATIONS, 257 LVI. FATAL EFFECTS OF GASTRONOMY, - - 263 Lvn. BARON SCHIEDAM, - 267 LVIII. THE BEAUTIES OF OVERGROGGY, - - 26» LIX. PETER'S FAREWELL ADDRESS, - - 271 LX. FEAST OF THE FACTIONS AT DALKEITH, 273 Court of Session Garland. I. ANECDOTES OF THE EABLY ADMINISTRATION OF JUSTICE IN SCOTLAND. These Anecdotes formed the subject of an article communi- cated some years ago by the Editor of the present Volume to the Edinburgh Law Journal, a Periodical "Work now consigned to the tomb of the Capulets, from whence it has been disinterred, and with various alterations and additions, has been prefixed as a suit- able introduction to this Collection of Pieces, chieiiy satirical, connected with the College of Justice and its Members. Of the truth of the charges brought against the early administration of justice in this country, there can be no reasonable doubt, — for setting aside the strong presumption arising from the mass of evidence referred to, — the Act of Par- liament 1597, — the Acts of Sederunt 1677-1679 and 1690, — the concurring and positive testimony of Buchanan, — of Johnston, — of Eountainhall, — of Balcarras, are too strong to be overturned. That there may have been, and probably were, honest men occasionally on the bench, may be true, but in those days dishonesty seems to have been the rule, and honesty the exception. It may be doubted if, in any country, not even excepting France prior to the revolution, there can be found more 14 COURT OF SESSION GARLAND. direct or positive instances of judicial corruption than may be traced in the annals of Scotish Jurisprudence. Indeed, from the institution of the College of Justice down to a comparatively recent date, hardly any one period can be pointed out as altogether free from taint. Nor is it wonderful that the administration of justice should have been thus polluted ; for, however national vanity may attempt to disguise the fact, there is no doubt that Scotland, while a separate Kingdom, had little pre- tension to be considered in the light of a civilized state. Her nobles were turbulent, unprincipled, and sanguinary, — her statesmen (with few exceptions) were generally influenced by any other motives than the good of their country, — the lesser barons were semibarbarous, and the peasantry, especially in the Highland districts, almost entirely so. If any person is inclined to suppose this picture overcharged, a reference to Mr. Pitcairn's Criminal Trials- — a singularly curious and valuable work — wlU re- move all his doubts.^ Even the clergy were not altogether unaffected by the state of society in which they were placed. They partook too much of the stern spirit of the age ; and it is melan- choly to reflect that even our venerable Reformer has spoken complacently of the murder of Cardinal Beaton, — thus inferentially, if not directly, affording his high sanction to that most detestable of all maxims, that " the end justifies the means." It would have been, therefore, somewhat surprising if the judges should have been the only portion of the community uninjured by the pestilen- tial atmosphere which they were inhaling. At no distant interval from the institution of the College of Justice, the judges had become obnoxious ; and Buchanan has recorded his opinion of the tyrannical exercise of their powers in the following striking terms : — " Omnium civium bona quindecim hominum arbitrio sunt commissa, quibus et perpetua est potestas, et ini- EAELY ADMINISTRATION OF JUSTICE. 15 perium plane tyranicum : quippe quorum arbitria sola sunt pro legibus." ^ The result of this exclusive arbitrary power may be anticipated. Subject to no control, the law was expounded by the judges in the way best suited to further their own purposes, and they gradually became so corrupt that the legislature interfered; and in the year 1579 an Act was passed prohibiting them, "be thame selfSs or be thair wififis or seruandes, (to) tak, in ony time cuming, huddis, hryles, guides or geir fra quhatsumever persone or persons presentlie havand, or that heirefter sail happyne to have, ani/ aetionis or caussis persewit hefoir thaime, aither fra the persewer or defender," under pain of confiscation. This enactment seems to have had little effect, as we find eighteen years afterwards that the judges were just as bad as ever ; for Johnston, an historian of veracity, states:* — " Hac tempestate (1597) totus ordo judicum, paucorum improbitate, et audacia, infamatus. Inveteravit tum opinio, et omnium sermone percrebuit, pecuniosum hominem, neminem potuisse causa cadere. Alexander Eegius,* Advocatus acer, ut vehemens, illam labem et ignominiam ordinis callide observans, a clientibus suis pecuniam accepit : quam corruptis judicibus, pro suffiragiis divideret. Hsec et similia in causa fuere, ut totus ordo gravi diuturnaque iufamia laboraret." During the time the bench was dignified by the pre- sence of the Earl of Melros, (afterwards Haddington,) who for many years held the high of&ce of Lord President, some check was put upon the venality of the Judges ; but even under his Lordship's vigorous rule it was not wholly put down. Indeed many things might be instanced not exactly suited to our notions of judicial decorum. Thus we have the Lord Chancellor ® superintending the law-suits of a friend, and writing to him the way and manner in which he proposed they should be conducted.^ It has been said, and although there does not seem to be sufficient 16 COURT OF SESSION GARLAND. authority for assuming the fact, it is far from improbable, that during the usurpation, the laws were righteously and efficiently administered, and that the English judges, free from local prejudices, and uninfluenced by private feel- ings, determined the variety of cases coming before them, in such a way as to give universal satisfaction. An anecdote has been preserved on this subject. Some one had been lauding to Lord President Gilmour the ex- treme impartiality of the English judges, and the general equity of their proceedings, "Deil speed them," angrily exclaimed his Lordship, " they had neither kith nor kin." The restoration brought back with it the evils, though perhaps modified, of the olden time : open bribery was no longer practised, but private influence stiU. flourished in all its pristine vigour. The judges were publicly tampered with, and the nuisance became so intolerable, that they endeavoured to repress it, by passing an act of sederunt,'^ which was renewed a couple of years afterwards, but which does not appear to have received much attention, either from the judges or the suitors, as, upon the 11th November, 1690, their Lordships engaged, "upon their honours, to observe the conditions of previous acts." A strange engagement truly, and one which pretty clearly demonstrates, to use a legal phrase, that their Lordships' enactments on this subject were not in viridi ohservantia. It may here be observed, that by the act last noticed, it was ordained that this judicial pledge, not to listen to solicitations of any kind, was to be renewed each Session. Although this apparent desire of the judges to put down solicitation might induce a belief of its perfect sincerity, it unfortunately happened that their Lordships' practice was not exactly in accordance with their professions. Unquestionably general solicitation was at a discount, but the evil still continued, in a different shape. Each judge had, what was termed, his " peat " or favourite, through whom interest was made, and, of course, it was EARLY ADMINISTRATION OF JUSTICE. 17 not to be expected that the " peat " should deal with his patron without receiving a suitable remuneration. This office seems not to have been considered disreputable, for, if we may believe a popular rhyme made upon the in- fluential and prosperous family of Melville, the younger sons of the nobihty thought it no degradation to accept so lucrative an office. The rhyme runs thus, — " Three brave sons, and all gallant Statesmen, There's crooked son, and wicked son, the third son is a pate man, And if your purse be full enough, it will end aU debate man." The " crooked " son was Alexander, Lord Eaith, the heir apparent of George, fourth Lord and first Earl of Melville ; the " wicked " son was David, third Earl of Leven and second Earl of Melville ; and the " pate " or peat was James Melville of Balgarvie. It might be conjectured that the word peat was in- tended for pet, but, if we may refer to the somewhat ques- tionable authority of the North Briton,* " Peat " was a contraction for Patrick, and the adoption of it arose in this way : — " In the Court of Session, as at Paris, it is usual for persons at law with each other, to go about, (like so many candidates at an election), soliciting the votes and interest of the judges, who [the judges] are each attended by a Pat and a Seceetaey ; the first of which it is absolutely necessary to consult, and the latter to treat with. When you are informed of the origin of Patship, you will readily guess the nature of the office. One of the former judges of that Court, of the first character, knowledge, and application to business, had a son at the bar, whose name was Patrich, and when the suitors came about soliciting his favour, his question was, 'Have 2 18 COURT OF SESSION GARLAND. you consulted Pat ?' If the answer was affirmative, the usual reply of his Lordship was, ' I'll enquire of Pat about it, I'll take care of your cause. Go home and mind your business.' This judge, in that case, was even as good as his word, for wliile his brother judges were robing, he would tell them what pains his son had taken, and what trouble he had put himself to, by his directions, in order to find out the real circumstances of the dispute, and as no one on the bench would be so unmannerly as to question the veracity of the son, or the judgment of the father, the decree always went according to the information of Pat. At the present sera, in case a judge has no son at the bar, his nearest relation, (and he is sure to have one there), officiates in that station. But, as it frequently happens, if there are Pats employed on each side, the judges differ, and the greatest ' interest, (i. c. the longest purse), is sure to carry it." Whatever may be the true derivation of the name, there can be no doubt that a set of individuals did exist who dealt with the judges for money, and who were usually denominated "Peats." There has been preserved a Satire,^ entitled " Robert Cook's Petition to the Lords of Session against the Peats," from which, as containing a tolerably humorous catalogue of the " peats," a few extracts will not be out of place. The writer after stating " That he's likely to starve unless made a peat," wishes to know " Whose peat he must be : The President's-^" he cannot, because he has three. And for my Lord Hatton,^^ his sone now Sir John By all is declared to be peattie patron. It's true, my Lord Register^^ at first did appear A vacant place to have, but your petitioner doth fear For noe other end did his brother of late EARLY ADMINISTRATION OF JUSTICE. 19 His ensign's place sell, but to be made a peat ; Though be the mock faculty, ignorance should him cast. Yet a bill (with he's my brother) will him in bring at last. Old Nevoy^^ by all is judged such a sott. That his peatship could ne'er be thought worth a groat. Yet John Hay of Murie, his peaty as I hear, By virtue of liis daughter, makes thousands a-year. Newbyty* hertofor went snips with the peats, Bot having discovered them all to be cheats. Resolves for the future his sone WilUe Baird Should be peat for his house as well as young laird. My Lord Newton,-'^ a body that gladly would live. Is ready to take whate'er men would give. Who wisely considers when peat to himself. He avoyds all danger in parting the pelf" He then concludes his petition with craving " To be a peat to some peat. Or in Pittenweem's language to make his peat's meat." Their Lordships are next represented as remitting the application to Lord Castlehill, who, it would appear, was no great favourer of the system, as he upon " Considering the supplicatione, Declares that the peats are grievous to the nation ; They plead without speaking, consult without wryting, And -this they doe by some inspiratione ; And now they have found out a new way of flyting, Which they doe call solicitatione." ^^ This abuse was strictly in keeping with the constitu- tion of the Court. The judges were selected, not on account of their qualifications for office, but because their subserviency rendered their appointment useful to their patrons ; men of probity and honour were carefully ex- cluded, and the law thus administered became the engine 20 COUET OF SESSION GARLAND. of tyranny and oppression, and those in power in this way had the means of enriching themselves at the expense of their neighbours. It was therefore a matter of importance to get the control of the Session, and numerous instances may be found in the records of the period, of attempts, sometimes successful, sometimes the reverse, to procure such ascendancy. Lord Balcarras, a keen jacobite, and a person not very likely to give a too highly coloured de- scription of the practices of the time, in speaking of the Duke of Hamilton, observes : " He (the Duke) had no design but the ruin of the Lord Melvil and Lord Stair, and to get the Session filled with his own creatures, having at that time Tnany lawsuits in hand." The purity of the administration of justice may be further illustrated by the following anecdote, which is better authenticated than usually happens, inasmuch as Dr. Abercromby, a gentleman of great respectability, heard it related by the Earl of Eochester, one of the parties concerned, to the Honourable Eobert Boyle : — ■ " A Scotch gentleman having entreated the Earl of Eo- chester to speak to the Duke of Lauderdale upon the account of a business that seemed to be supported by a clear and undoubted right, his Lordship very obligingly promised to do his utmost endeavours to engage the Duke to stand his friend in a concern so just and so reasonable as his was ; and accordingly, having conferred with his Grace about the matter, the Duke made him this very odd return, that though he question'd not the right of the gentleman he recommended to him, yet he could not promise him an helping hand, and far less success in business, if he knew not first the man, whom perhaps his Lordship had some reason to conceal, because, said he to the Earl, 'if your Lordship were as well acquainted with the customs of Scotland as I am, you had undoubtedly known this among others : SIiow me the man, and I shall show you the law, giving him to understand that the law iii EARLY ADMINISTRATION OF JUSTICE. 21 Scotland could protect no man, if either his purse were empty or his adversaries great men, or supported by great ones." ^"^ Amongst other evils of those days, was one arising from the right of the Lord President to call cases not according to any fixed order of enrolment but as suited his own pleasure ; — thus, when there was a purpose to serve, and when some of the judges who might be opposed to the President's views were absent, either attending their outer-house duty or otherwise engaged, a particular case was called and decided. To correct this flagrant abuse, an Act of Parliaments^ had been passed, ordering that every cause to be heard in the Inner-House should be enrolled and called, according to the date of its regis- tration ; and declaring, that any decision pronounced in any cause out of the proper order, should go for nothing. Notwithstanding this enactment, the disgraceful practice continued, of calling cases at the option of the presiding judge, until the elevation of Duncan Porbes to that high office.s^ It was in consequence of a manoeuvre of this kind that an attempt was made to controul the Court by an Appeal to Parliament. In a law-suit between the Earls of Dun- fermline and Callender, Lauderdale, who was an extraor- dinary Lord of Session, favoured one of the parties, and resolved to influence the decision of the judges by his voice and presence. The President, Sir James Dal- rymple, afterwards Viscount Stair, an illustrious name in the annals of Seotish Jurisprudence, we regret to admit, lent himself to his Grace's measures, and in defiance of the recent Statute, called the cause out of its regular order. The result was, of course, favourable to the Duke's protegee ; and Lord Callender (then Lord Almond) en- tered an Appeal to the Seotish Parliament, — a step of considerable boldness and doubtful competency, but which met with support from many of the leading lawyers of the time, including Lockhart and Mackenzie. 22 COURT OF SESSION GARLAND. The President and some of his creatures took alarm at this decisive measure ; and, from the influence they possessed at Court, induced Charles II. and his ministers to suppose that this step was a most factious and danger- ous proceeding, on the part of a few only of the Faculty of Advocates. Upon this, a letter came down, dated 19th May, 1674, declaring his Majesty's extreme " dissatisfaction and abhorrence " of appeals, and pro- hibiting all members of the College of Justice from sanc- tioning or countenancing them in future.^" The Marquis of Huntly, on behalf of the Earl of Aboyne, his nephew, followed Lord Callender's example, by entering an appeal in a cause in which his ward had been unsuccessful, but this appeal, as well as the preced- ing one, was annulled by the letter before alluded to. Lord Fountainhall, in his unpublished manuscripts, gives the following account of what subsequently took place m the later case. " When the Marquis returned from the French camp, my Lord Lauderdale persuaded him judi- cially to compear before the Lords of Session, and take up his appeal, and declare he passed from it, and which he did on the 26th of January, 1675, and then promised him not only a new hearing, but gave him some insinua- tions to hope a redress. Yet, after a second debate, they adhered to their former interlocutor, and so he was either ill or well served for his complimenting them ; but the times were such, as no rational man could expect an alteration from them, of what had escaped from them, though unawares : they blushed to confess what is inci- dent to humanity itself (nam humanum est errare), where their honour was once engaged at the stake."^^ His Majesty's letter did not produce the result antici- pated. The advocates still continued refractory, and an open rupture with the Court was the consequence. It is remarkable, that in the number of malcontents the names of Sir George Lockhart, afterwards President, and Sir EARLY ADMINISTRATION OF JUSTICE. 23 George Mackenzie, Lord Advocate, are to be found. The refractory barristers continued long obstinate, one portion of them residing at Haddington, under Sir George Lock- hart as their leader, and another proceeding to Linlith- gow, under the auspices of Sir John Cunningham. This dispute amongst the lawyers gave rise to a variety of pasquinades, some of which have been preserved. The following parody, upon a well-known song of the time, entitled " I like my humour well, boys," is amusing enough : — " The President with his head on one side,^^ He swears that for treason we all shall be tryed ; We tell him 'twas not so with Chancellor Hyde. And I like my humour weill, boyes, And I like my humour weill. The President bids us repent of our sin. And swears we'll be forfault if we don't come in ; We answer him all. We care not a pin. And I like my humour weill, boyes. And I like humour weill." A Parody on " Farewell, fair Armida," ^^ is perhaps a better specimen of the legal wit of the time : — 1 Farewell Craigie Wallace,^* the cause of my grief. In vain have I loved you, but found no relief ; Undone by your letters^^ so strict and severe, You make but bad use of his Majesty's ear. Now prompted by hatred we know your intent Is to dissolve us like the Parliament ; But we know, tho' we languish, in two months delay, We shall all be restored on Martinmas day. 24 COURT OF SESSION GARLAND. On hills and in vaUies, midst paitricks^^ and hares, "We'll sport, or we pleed in perpetuall fears. The death-wounds ye gave us, our clients do know. Who swear had they known it, it should not be soe. But if some kind friend to our Prince should convey. And laugh at our solitude when we're away ; The barres in each house, when ye empty shall see. You'll say with a sigh, 'twas occasioned by me. Answer. 1 Blame not Craigie Wallace, nor call him your grief, It was Stairs, and not he, that denied you relief; Abuse not his letter, nor call him severe. Who never, God knows, had his Majesty's ear. It's true ye may think, that we were not content. When from us ye appealed to the Parliament ; But we grieve when we think your gown should defray The expense of your folly on Martinmas day. To hills or to vallies that ye will repair. It seems of our favour ye mean to despair ; Of your joint resolution we daily do hear. Yet grieve we to &ink that it cost you so dear. But if male-contents to our Prince should convev, And show we are useless when you are away, EARLY ADMINISTRATION OF JUSTICE. 25 We'l laugh at your fate, which ye would not prevent, And bid you appeal to- the Parliament. The following clever but coarse address " to the Advo- cates who stayed behind," is sufficiently bitter: — As when the generous wines drawn off and gone, The dregs in puncheon a remain alone ; And when the Lion's dead, base maggots breed Upon his rump, and then do sweetly feed ; — Even so of Advocates you're but the rump, That noble Faculty's turn'd to a stump ; And so Dundonald does you much command, Because you are the Faculty's wrong end. But since a Rumple^' President does sit, "That rumps at bar, should domineer was fit, Yet where the taill is thus in the head's place. No doubt, the body has a s — n face. Thus, thus, some men reform our laws and gown. As Taylors doe by turning upsyde down. In due season the advocates were compelled to bend to the powers that were, and after having been contumacious for considerably more than twelve months, upon making proper submission, they were, upon the 25 th January 1676, re-admitted to practice. But the triumph of the Judges was not of long duration ; for the Peers and mem- bers of Parliament began to see that appeals might be turned to good account, and they probably thought that there was no reason why the judges should have a mono- poly of judicial patronage and plunder. Appeals were encouraged, and 'in a very short time became common enough. It may be here not out of place to turn to another tribunal where justice was administered on a similar scale. The Scotish Privy Council, which possessed a ■26 COUET OF SESSION GARLAND. pretty extensive jurisdiction, was proverbial for its venality and rapacity. Lord rountainhall records a somewhat amusing instance of the manner in which this honmiraUe Court exerted its powers to serve particular purposes. John eighth Lord Elphinstone was debtor by bond to William Forbes of Tolquhan in the sum of 10,000 merks, which he was not very willing, or rather perhaps, was unable to repay. Luckily for him, Forbes, who was a man of somewhat irritable temperament, quarrelled with his clergyman, Mr. John Strauchan, and, in the heat of the moment, save him a " cuff." Such a chance as this did not escape the vigilance of the debtor. Forbes was cited before the Privy Council, where, after the fashion of a modern election committee, the result had been already settled, and he was adjudged to pay a fine of 10,000 merks to the Crown, five hundred merks to Mr. Strauchan, and four dollars to every witness adduced against him, and the better to enforce implement of the sentence, he was ordered to be imprisoned till he had obeyed it. Elphinstone had previously arranged that he was to get the fine, and as it was the precise sum in which he was indebted to Forbes, he was thus enabled to pay his debt without putting his hand into his pockets at all. Foun- tainhall candidly informs us that all this " was only done to pay a bond of the like sum which he had of my Lord Elphinstone, who has got a right to the fine." Lord Fountainhall in his Chronological Notes, p. 247, refers to a lawsuit between Mr. Eobert Pittilloch, advo- cate,^^ and Mr. Aytoun of Inchdairnie, the son-in-law of Lord Harcarse, one of the judges, in which the former did not hesitate to call the learned lord "a bryber," for which he (Pittilloch) was apprehended. Harcarse was removed the ensuing day from the bench, and it does not seem that anything was done to his opponent, who pub- lished an account of the whole proceedings under the following singular title : — " Oppression under the Colour EAELY ADMINISTRATION OF JUSTICE. 27 of Law ; or, My Lord Harcarse his new Praticks : As a way-marke for peaceable subjects to beware of playing with a hot-spirited Lord of Session, so far as is possible when arbitrarie Government is in the Dominion — Pro- verbs XX, verse 21, An inheritance may be gotten hastily at the beginning, but the end thereof shall not be blessed."^* The author did not venture to print this violent attack in Edinburgh, and accordingly it bears the imprint of London 1689. Of course it would be unfair to take a narrative of this description prepared by the party aggrieved, as evidence of the corrupt practices of Lord Harcarse. It is too pro- bable, however, that the accusation was not without some foundation ; for layiag aside entirely the " habite and repute" character of the judges, it is remarkable that Eountainhall, while alluding to the lawsuit and the ac- cusation, neither states the latter to be false, nor ventures in his decisions to report the former. There is, besides, one fact mentioned in the pamphlet, which, if true, is somewhat startling, namely, that when the cause was called by Lord Drumcairn, who was the Ordinary, " my Lord Harcarse compeared with his Purple Gown, and debated the case as Inchdairnie's advocate." The notion of a judge in his robes debating as counsel the case which he might afterwards be called upon to decide, is not very reconcileable with modern notions of propriety. Pittilloch entered an appeal, and from no notice being taken in the Parliamentary Journals of its fate, in all likelihood the suit was compromised.^" But a much better authenticated instance of judicial injustice and tyranny has been preserved in the sederunt- book of the parish of Dairy .^^ It would seem that a Dr. Johnston had by a codicil to his will, left the sum of £3000 towards the establishing a grammar school in the parish of Dairy. Payment of this sum was resisted by a Mr. Joissy,^^ one of the executors, and an action before 28 COURT OF SESSION GARLAND. the Court of Session was thereupon brought at the in- stance of the parish. The defender had enlisted under his banners Alexander Gibson of Dury, one of the princi- pal Clerks of Session, and by their joint influence they were enabled to secure a certain portion of the judges. On the other hand, the Earl of Galloway patronized the heritors, and by his and the other means resorted to, the Bench became equally divided. Unfortunately for the parish, the Lord President^^ had been gained over by Joissy, and he uniformly contrived to manage matters so judiciously, that the cause was never called in the absence of the supporters of the defender. It so happened, to use the words of the report, that the Court having " accidentally appointed a perrempter day, about the beginning of February, 1704, for reporting and decyding in the cause, both parties concluded that the paroch would then gain it, since one of Mr. Joissy's lords came to be then absent. For as my Lord Anstruther's hour in the Outer-House was betwixt nine and ten of the clock in the morning, so the Earl of Lauderdal, as Ordi- nary in the Outer-House, behoved to sit from ten to twelve in the forenoon : for by the 2 1 st act of the fourth session of the first Parliament of King William and Queen Mary, its statuted expressly, that, if the Lord Ordinary in the Outer-House sit and reason or voat in any cause in the Inner-House after the chap of ten hours in the cloak, he may be declined by either party in the cause from ever voating thereafter thereintill : Yet such was the Lord President's management, that so soon as my Lord Anstruther returned from the Outer-House at ten of the cloak, and that my Lord Lauderdal was even desired by some of the Lords to take his post in the Outer-House in tearms of law : Yet his Lordship was pleased after ten to sit and voat against the paroch, the President at that junctur having put the cause to a voat." EARLY ADMINISTRATION OF JUSTICE. 29 Of this irregular conduct the parish found it their duty to complain ; and John Menzies of Cammo, an eminent lawyer, prepared and boxed a declinature of the Lord Lau- derdale, in name of Mr. Ferguson of Cairoch and the other heritors, stating the violation of the Act of Parliament by his Lordship voting in the Inner-House after ten o'clock, when he ought to have been sitting in judgment in the Outer-House. This measure had been recommended by some of the judges who were in the interest of the parish, and who had objected to his Lordship's sitting and voting. The next morning the President came to the Court in a tremendous rage, insisting that every individual in any ways connected with the declinature should be punished. Upon this the client, counsel, and agent, were ordered to be cited as criminals ; the former escaped, having taken horse about an hour before the macer came to summon him ; the latter appeared, but " the speat was so high against the paroch and them all the time, that they be- hooved to employ all their friends, and solicit a very particular Lord that morning before they went to the house ; and my Lord President was so high upon't, that when Cambo (Cammo) told him that my Lord Lauderdal, contrair to the Act of Parliament, satt after ten a cloak, his Lordship unmannerly said to Cambo, as good a gentle- man as himself, that it was a d d lye." Upon this Menzies and the agent offered to prove their averments, but the Judges ordained them to be instantly incarcerated, while they deliberated what punishment should be inflicted. After some consultation the two gentlemen were called to the bar " as malefactors," and were ordained to beg Lord Lauderdale's pardon, which they accordingly did. No redress could by possibility be obtained for this outrageous procedure, for, as the author of the report says, "the misery at that time was, the Lords were in effect absolute, for they did as they pleased, and when any took 30 COURT OF SESSION GARLAND. courage to protest for remeid of law to the Scotch Parlia- ment, they were seldom or never any redress gott there, all the Lords being still present, by which the Parliament was so overawed, that not ane decreit among a hundred was reduced." Amongst the more influential judges, about the period of the preceding decision, was Lord Whytlaw, who had a very short time before his death been made Justice- Clerk. He expected the Presidency, but the superior in- fluence of Dalrymple had prevailed. Which side he took in the parish dispute alluded to, does not appear. His character is thus portrayed by Lockhart, who, after stating he owed his elevation to whiggery, remarks : " He soon displayed a forward haughty mind. Betwixt man and man, where he had no particular concern, he was just, hut extremely partial vjherc his friend or his ou-n politics interfered. He had a sound solid judgment, but all his actions were accompanied with so much pride, vanity, ill-nature and severity, that he was odious to everybody."^* His demise, which occurred in the mouth of December 1704, gave rise to a number of epitaphs, by no means very flattering to his memory. Some of these jeux d' esprit are preserved in the collection of Scot- ish Pasquils so often referred to. One of them, which has considerable spirit, we insert. — Old Nick was in want of a Lawyer in Hell To preside o'er the Court there of Session, So old Whytlaw he took, for he suited him well For tyranny, lust, and oppression. 'Twixt the Devil and Whytlaw the poor wretches damn'd, Will be sore put about in that hot land, For now since the Justice-Clerk got the command They could hardly be worse off in Scotland. EARLY ADMINISTRATION OF JUSTICE. 31 The Union was the first effectual step towards a reform of the Court of Session, and we may fairly ascribe to the establishment of an appellate jurisdiction, the benefits we enjoy under the present system. The right of appeal to a quarter where private influence could not operate, and where local prejudice never could arise, necessarily con- trolled the judges of the subordinate court, and in this way the seat of Justice was gradually purified. As might be expected, the right of appeal was keenly opposed. In a very able pamphlet entitled the Testamentary Duty of the Parliament of Scotland, the writer, in weighing the reasons both for and against the privilege, remarks, that to allow no appeals, was " to constitute fifteen tyrants, as our historian (Buchanan) called these judges of old ; and to augment the grievances we are under already with respect to this judicature, and to fill the whole nation with complaint and discontent. What shall they think of the absolute power who observe, that men take not ordinarily their measures according to the justice or in- justice of their suits, but their influence and interests vjith the Lords, adhering to the old compend of the Scots law. Shew me the man and I'll shew you the law ? And, finally, what shall be their opinion of it, who are con- cerned in appeals already made from the Session, and in discussing whereof they expect redress ? And certainly it is the sentiment of the generality of the nation that there should be appeals from the Lords of Session, if it should have no other effect than to overawe them." Even so far down as the year 1737, traces of the ancient evil may be found. Thus, in some very curious letters which passed between William Eoulis, Esq. of Woodhall, and his agent Thomas Gibson of Dury, there is evidence that private influence could even then be resorted to. The agent writes to his client, in reference to a pending lawsuit (23d November 1735): "I have spoke to Strachan and several of the Lords, who are all 32 COURT OF SESSION GARLAND. surprised Sir F(rancis Kinloch)'^ should stand that plea. By Lord St. Clair's advice, Mrs. Kinloch is to wait on Lady Cairnie to-morrow, to cause her ask the favour of Lady St. Clair to solicit Lady Betty Elphingston and Lady Dun. My Lord promises to back his Lady, and to ply both their Lords, also Leven and his cousin Murkle.^® He is your good friend, and wishes success ; he is jealous Mrs. Mackie will side with her cousin Beatie. 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 Doctor Pringle is a good agent there, and discourses Lord Newhall ^* strongly on the law of nature," &c. Again, upon the 23d of January 1737, he writes,- — " I can assure you that when Lord Primrose left this town, he staid all that day with Lord J(ustice) C(lerk)^^ and went to Andrew Bromefield att night, and went off post next morning ; and what made him despair of get- ting any thing done was, that it has been so long delayed, after promising so frankly, when he knew the one could cause the other trot to him like a penny-dog, when he pleased. But there's another hinderance : I suspect much Penty*" has not been in town as yett, and I fancy its by him the other must be managed. The Ld. J(ustice) C(lerk) is frank enough, but the other two are damned clippies. I met with Bavelaw and Mr. "Wm. Tuesday last. I could not persuade the last to go to a wine-house, so away we went to an aquavity -house, where I told Mr. "Wm. what had past, as I had done before that to Bavelaw. They seemed to agree nothing could be done just now, but to know why Lord Drummore*-' dissuaded bringing in the plea last winter. / have desired Lord Haining to speak, but only expect his answer against Tuesday or Wednes- day." ^^ It is not our intention to pursue these remarks further, although we believe that judicial corruption continued EARLY ADMINISTRATION OF JUSTICE. 33 long after the Union. We might adduce Lord President Forbes as a witness on this point, who, one of the naost upright lawyers himself, did not take any pains to conceal his contempt for many of his brethren. A favourite toast of his is said to have been, — " here's to such of the judges as don't deserve the gallows."** Latterly, the complaint against the judges was not so much for corrupt dealing, with the view of enriching themselves or their " pet " lawyer, but for weak prejudices and feelings, which but ill accorded with the high office they filled. These abuses, the recapitulation of which may amuse and instruct, are now only matter of history, — the spots that once sullied the garments of justice are effaced, and the old compend,— " Shew me the man and I'll shew you the law," is out of date. Notes to Number I. ^In truth, James the Sixth, whom it has been the fashion to ridicule as an empty pedant, was the first of the Stewarts who reaUy benefited the Kingdom, by grad- ually depressing an unprincipled Aristocracy. ^Eerum Scoticarum Historia, £ 501. Ultrajecti 1668. 8vo. 3 Johnstoni Historia, p. 231. Amst. 1615, folio. * Alexander King was Judge of the Admiralty Court, and author of a treatise in Latin, still unpublished, upon Naval Laws and Customs : there is a MS. copy of it (A. 2. 1 6.) in the Library of the Faculty of Advocates ; and judging from a cursory examination, it appears a book of considerable value, and one which may very beneficially be consulted. ^ Sir Alexander Seaton, Earl of Dunfermline. ® Letters and State Papers of the reign of James VL Edin. 1838, 4to, privately printed for the Abbotsford Club. 3 34 COURT OF SESSION GARLAND. 7 6th November 1677. 8No. 62, Sep. 17, 1763. ^Scotish Pasquils, vol. ii. p. 29. In a MS. we have seen, the Petitioner is represented as Robert Cook, Advo- cate. ^^ Sir James Dalrymple, Viscount of Stairs. " Mr. Charles Maitland, afterwards Earl of Lauderdale. ^^ Sir Archibald Primrose. ^ Sir David Nevoy. He was promoted to the bench, June 25, 1661, and retained his office for upwards of twenty-two years. Lord Hailes mentions he had been a Professor in St. Leonard's College, St. Andrews. At his first admission he was termed Lord Reidie. ^*Sir John Baird, made a Judge Nov. 4, 1664. ^ Sir David Palconer. ^^ In a MS. poem entitled a " Castlehill Rencounter,'' (Anno 1700) the Author, referring to various persons he met there, says, " Three Judges walking with their peats I found Th' allowed bribes, which justice doth confound, A corrupt age ! Their cause who to promote. Employ the son to get the father's vote." "A Moral Discourse on the Power of Interest, by David Abercromby, M.D. London, 1691. P. 60. 18 1672, cap. 16, § 5-12. i^Laing's Scotland, vol. 4, p. 416. Lond. 1819, 8vo. ^"Acts of Sederunt, p. 114. ^^Kirkton's Church History, p. 347. Scotish Pasquils, vol. ii. p. 15-16. ^^ Lord Stair's head, either from accident or disease, was on one side, and afforded to his enemies, and he had no small number, a never-failing subject of ridicule. Thus the " Satire on the family of Stairs " (Scotish Pasquils, vol. 1, p. 48) commences : " Stair's neck, mynd, wife, son, grandson, and the rest, Are wry, false, witch, pets, parricid possest ; EARLY ADMINISTRATION OF JUSTICE. 35 Curst be the cause of Scotland's constant woe, That hinders justice in even paths to go.'' ^^ By Dryden. ^* Sir Thomas Wallace of Craigie, Lord President. 25 Letter from Charles the IL dated 19th May 1674, disapproving of Appeals to Parliament. 2^ Partridges. 2'' A play upon Lord Stair's family name of Dalrymple, which was pronounced as if spelt with an u instead of ay. ^ This gentleman, during the usurpation, was Solicitor- General to the Protector, a circumstance which would not tend to his advantage at the restoration. 2* P. 19. A few copies of this legal curiosity were reprinted. Stevenson, 1827. Quarto. ^"Lord Harcarse reported from 1681 to 1701; but no notice of this remarkable case is taken in the printed volume of decisions. ^^ The entry is regularly attested by the subscription of the different heritors. There seems no reason for doubt- ing the accuracy of the statement. ^2 This man was a barber-surgeon, and the following curious entry relative to his professional charges occurs in the note-book of Sir John Fowlis of Eavelston, Bart. — " A^il 5,1680. To John Jossie for cutting my sone Adames tongue, being tongue-tacked, £5 16s." (Scots money.) ^^ Sir Hew Dalrymple of North Berwick, Bart, second son of the Viscount of Stair. He had the reputation of a first rate jobber. ^*Lockhart Papers, vol. i. p. 107. '^He died 2d March 1747. His grandfather was an Edinburgh Clothier, who acquiring considerable wealth, became Dean of Guild, and subsequently Lord Provost of Edinburgh. His great grandfather was a sexton, if we may give credit to a pasquinade entitled " a gentleman's 36 COURT OF SESSION GARLAND. turn to Jacob Kinloch, for calling him a dunce in the Coffee-house, 1674," where it is said, — " I wondered much who and what ye could be, Till one did thus extract your pedigree, His grandsire was a sexton fairie elf, Lived on the dead, and digged graves for pelf He left unto his son, which severall yeares He did augment by needle, thimble, shears. Till pride that devill him threw, and did distUl Through needle-eye, and made him Dean of Gild," &c. Sir Walter Scott used to tell an anecdote of one of the family who set up as a man of fashion, and who being pre- sent at a meeting of the freeholders of Haddington, took occasion to rally an old gentleman who was there upon the antique cut of his garments, remarking that he was very much delighted with their elegance and fashion ; " deed my man," was the reply, " so you ought, for they were made by your grandfather." '^^ John Sinclair of Murkle, appointed a Lord of Session in 1733. ^'' Alexander Leslie, Advocate, succeeded his nephew as fifth Earl of Leven, and fourth Earl of Melville in 1729. He was named a Lord of Session, and took his seat on the bench on the eleventh of July 1734. He died 2d February 1754. ^^ Sir Walter Pringle of Newhall, raised to the bench in 1718. ^'Andrew Fletcher of Milton was appointed, on the resignation of James Erskine of Grange, Lord Justice- Clerk, and took his seat on the Bench 21st June 1735. *" Probably Gibson of Pentland. " Hew Dalrymple of Drummore, appointed a Lord of Session in 1726. *^The original letters are in possession of Sir James Foulis, Bart, of Woodhall. ** A story is told of one of the judges of the old school. EAELY ADMINISTRATION OF JUSTICE. 37 ■which, if correct, indicates that, not quite a century since, there still did exist some of the old leaven. It is said that a law-suit had for some time depended between the Magistrates of a certain circuit town and some neighbour- ing proprietor, which had been brought to a termination favourable to the wishes of the former by the admirable management of one of the judges. This eminent person, who happened to be a justiciary judge, had occasion officially to visit the town in question, where he was re- ceived with becoming gratitude and attention by the gratified Magistrates. At a feast, — whether given by the judge or his clients we forget, — the Magistrates gravely thanked the learned Lord for his kind exertions, and trusted he would continue his patronage. My Lord smiled and bowed, and looked particularly amiable ; — presuming on his good nature and complacent demeanour, one of the number ventured to hint that his Lordship's services might again be required, as they, emboldened by their former success, had commenced another new suit, and he was humbly requested to carry them through with that case also. "Na, na, I canna do that," exclaimed my Lord ; " Why ? " exclaimed all the astonished Magistrates, amazed probably at what they conceived to be a most uncalled for scruple of conscience, " because " rejoined the judge, " you're too late, I've already gein my promise to the opposite party." II. LINES ON SIB JAMES STEWART, LORD ADVOCATE. Sir James Stewart was very unpopular with the Jacobite party who vented their spleen against him in lam- 38 COURT OF SESSION GARLAND. poons. To them he was indebted for the soubriquet of Jamie Wylie.^ He held the of&ce of Lord Advo- cate, with the exception of one year, from 1692 until his death in 1713.^ The beautiful estate of Goodtrees (commonly pronounced Gutters) and now called Moredun, in the parish of Libberton belonged to him. In the Scotish Pasquils will be found the following pithy lines upon Sir James, from a MS. of old Robert Mylne. Sir James Stewart thou'lt hing in a string. Sir James Stewart, knave and rogue thou art. For thou neer had a true heart to God or King, Sir James Stewart thou'lt hing in a string. Quam formosa tua et facies tenebrosa Stewarte, Quam simplex, duplex, quam falsum pectus honesti, Quam verax mendax, oh ! quam suavis amarus. Quam celeste tecum nieditans terrestria pectus. Tuque colens Christum, coelum, nee Tartara credis Non mirum quamvis ludis utraque manu. PAEAPHRA.SED. How wondrous are the features of thy face. Where smyles and frowns by turns assume their place. That gloomy cloud which on thy brows does sit Speaks thy deep judgement and thy dangerous wit : Thy \'isage is ane emblem of thy heart Where every passion acts a different part ; A subtile serpent, now a harmless dove. All rage and furie — in a moment love. By nature false, yet honest if thou please. SIR JAMES STEWART. 39 Honey or gall, speak truth or specious lyes, Such Proteus shapes you can put on with ease. A saint in show, but in a carnal mynde, A slave to mammon's drossie part inclyn'd ; Heav'n thou pretends to seek, but heav'n does know All thy desires are center'd here below. Wheedliug's thy trade, and spite of all commands Thou find'st the art to play with both the hands. Notes to Number II. ^Scotish PasquUs, vol. i. p. 78. Edin. 1827, 12mo. ^ Transactions of the Antiquarian Society of Scotland, vol. 1, p. 320. Edin. 1792, 4to. III. TEE POOR CIIENTS COMPLAINT. DONE OUT OF BUCHANAN. From a broadside in the Library of the Faculty of Advocates, upon which is written the followiug MS. note. " Epigram 1. Book 1st, by Master Andrew Simpsone, Episcopale Minister, as is commonly reported ; and he confessed it before Mr. Davide his sone, and Andrew Lawder, writer, his lodger, in Anno 1707 and thereafter." Simpson is well known for his zeal and sufferings for Episcopacy. He was the author of various works con- troversial, topographical, and poetical. His account of Galloway was a few years since published from a MS. in the Faculty Library by Thomas Maitland, Esquire, Ad- vocate. The poem, if it can be so termed, — entituled " Tripatriarchichon, or the Lives of the three Patriarchs, 40 COURT OF SESSION GARLAND. Abraham, Isaac, and Jacob, extracted forth of the sacred king, and digested into Enghsh verse," Edinburgh, 1705, 8vo, — is known to the book collector for its rarity ; and to the book reader for its absurdity. Colin, by promise, being oblig'd to pay Me such a sum, betwixt and such a day ; I ask'd it — he refus'd it — I addrest Aulus the Lawyer. He reply'd " It's best To sue him at the Law. I'll make him debtor, Your cause is good, there cannot be a better.'' Being thus advis'd, away to Pate I trudge, Pray him, and pay him, to bespeak the Judge. Engag'd thus far, be't better be it worse I must proceed, and thus I do depurse : — Eor writing summons, signing, signeting, With a red plaster and a paper ring ; Eor summoning the principal, and then For citeing witnesses to say " Amen ! " For execution (alias indorsations). For tabling, calling with continuations ; Next for consulting Aulus and his man ; (For he must be consulted now and then), For pleading in the outer-house and inner From ten to twelve — then Aulus goes to dinner ; For writing bills, for reading them, for answers, More dubious than those of Necromancers. For interlocutors, for little acts. For large decreets, and their as large extracts, For hornings, for discussing of suspensions Full stuff'd with lies and frivolous pretensions, For '' Please your Lordships " and such like petitions, For raising and for serving inhibitions. And for comprysings, or adjudications, For their allowances for registrations. With many other acts and protestations, THE POOR CLIENT'S COMPLAINT. 41 Which may be summ'd up in one word — ^vexations. Then unexpectedly upon a small Defect alleg'd, Colin reduces all : We to 't again, and Aulus doth disjoint The process, and debates it point by point ; The cause at length's concluded, but not ended, This made me wonder ! — Aulus he pretended Decreets must not be given out at random, But must abide a serious avizandum, Conform to course of roll. — When that will be Indeed I cannot tell, nor yet can he. Thus Aulus hath for ten years' space extended The plea, and further more I have expended Vast sums, to wit, for washing, lodging, diet. Yet seldom did I rest or sleep in quiet. For coal, for candle, paper, pen, and ink. And such like things, which truely one would think Were unsignificant, but yet they've come In ten years' space unto a pretty sum. To macers, turnkeys, agents, catchpoles, pates. Servants, sub-servants, petty foggers, cheats ; For morning-drinks, four-hours, half-gills at noon, To fit their stomach for the fork and spoon To which they go, but I, poor man, meanwhille Slip quietly to th' Earl of Murray's ^ aisle. We meet again at two, then to disgeast Their bellyful, they'll have a gill at least. Sometimes a double one, for brandy-wine Can only end the war called " intestine." For mum, sack, claret, white-wine, purl, beer, ale, (One he would have it new, another stale. Both must be pleased,) for pipes, tobacco, snuff. Twist, coffee, tea and also greasie stuff Called chocolet, — ^punch, clarified whey. With other drinks, all which I duely pay. 42 COURT OF SESSION GARLAND. For rolls, for nacketts, roundabouts, sour kakes, For Cheshire cheese, fresh butter, cuckies, bakes. For paunches, saucers, sheep heads, chits, black pyes. Lamb legs, lamb kirnels, and lamb privities, Skait, lobsters, oysters, mussels, wilks, neats-tongues. One he for leeks, beer, and red herring longs ; This must be had, another doth prefer Raw herring, onions, oil, spice, vinegar, — Rare composition ; and he's truly sorry It's not in Colpepper's Dispensatory : For apples, pears, plumbs, cherries, nuts, green peas, Dulce, tangles, purslain, turneps, radishes, "With forty other things I have forgot. And I'm a villain if I pay'd them not. Moreover my affairs at home sustain Both the emergent loss, and cessant gain ; Aulus himself terms this a double loss, And I call him and it a triple cross. By all these means my expenses do surmount Near ten times ten times Colin's first account. And now e'er that I wholly be bereft Of th' little time and money to me left, I'm at the length resolved thus to do, I'll shun my debtor and lawyer too ; And after this I never wiU give credit Unto one word, if either of them said it : You'll ask which of the two I'd rather shun, Aulus — it's he, it's he hath me undone, I've words from both, yet sad experience tells That Colin gives, but Aulus dearly sells. Th' unwary reader thinks ferhaps that I Rave penn'd a satyre 'gainst the Faculty, 'Gainst those who by their accurate debates Maintain our rights and settle our estates, Who do their very lungs with pleading spend THE POOR CLIENT'S COMPLAINT. 43 Us 'gainst oppressors stifly to defend. A gross mistake, for I'll be sworn I do Admire their parts and their profession too ; I wish that law and lawyers both may thrive, And at the height of gra,ndeur so arrive That in all good men's eyes they may appear Like burnisht gold, both beautiful and clear. That this may be, (and 'tis for this I pray), Rust must be scour'd off, cobwebs swept away. Note to Number III. "■ Old Kirke. IV. A LETTER FROM THE GHOST OF SIR WILLIAM ANSTRUTEER OF THAT ILK, ONCE SENA- TOUR OF THE GOLLEDGE OF JUSTIGE, TO THE LORDS OF SESSION AND COMMISSION- ERS OF JUSTICIARY. From a MS. preserved in the Collections of the indefatig- able Wodrow. Lord Anstruther was appointed a Judge of the Court of Session 1st November 1689 : was nominated a Justiciary Judge 9 th November 1704, and died at his lodgings in Edinburgh, 24th January 1711. He was the author of a work en- tituled " Essays Moral and Divine." — Edinburgh 1701, 4to. Elysian Fields, 27 Jany. 1711. My Lokds, Having had the honour for several years to be one of your number, and being obliged, very much against my 44 COURT OF SESSION GARLAND. will, to leave soe good company and society, I tho't it my deuty to pay you my respects by this, whicli Charon promised to send to the earth, by the first messenger of death who shotdd be ordered to the upper world. Of late, it seems he hath work enough upon his hands ; for, till I arrived, poor John Adams, our macer, gote not on board, which I indeed first imputed to his civility to me, who, as he was informed, was quickly to follow, not considering that nobody works without wages, and that none are payed in our worlde. We no sooner got on board, but the boat was ready to sink ; for John's soul remained still very ponderous and heavy, and mine, you know, was alwise terrestrial. However, at last, with great difficulty, we reached the happy shoer; and then, my Lords, and never before, I had a treu veu of justice, which here soe impartially reigns, that your Lordships, at present, cannot comprehend it, or have any notions of it. Never till now did I see a whole sett of honnest, knowing, piouse, and just judges ; and it's weel that such are to be found somewhere. They are not here created by court favour, but the most deserving and learned are always chosen. A profound silence is still keept, and the judges deliver their opinion calmly and modestly. There is here no barking and hauling amongst the judges, to show their parts, and impudently to revile the Presi- dent of the Court. There is here noe delay of justice — noe counting of noses — noe sending home partys to take a pint, and 'gree the matter. Sentence is immediately given, without acts before answer ; nor are there reclaim- ing bills upon bills, and the judges doe not trouble them- selves with many avisandums to themselves. Here there is not soe much as the knowledge of a noe process. Some criminals would give a great deal for such ane advice, to delay their punishment for some time. And sure I am Mr. John Meinzies of Cammo ^ would make a considerable fortune in this place. Clerks and extractors doe not here LETTER FROM THE ELYSIAN FIELDS. 45 unconscionably peil the leidges of exorbitant deues. There is noe tearing of leaves out of the records or books of adjournall (which have always been counted sacred) after sentence was passed ; for then our infernal judges think they are officio functi. When persons are really guilty, there is no desertion of diets — no abstracting of evidence, nor sending men out of the way. Soe careful is our Proctor Fiscal, that he secures in prison all the witnesses against the party accused, till they find surety to appear when summoned. In a word, I was very soon dismissed, and had a more favourable sentence then probably I would have got, had I been more skilled in the quirks and subtilties of law. In the agreeable aboads, I found only two Lords of the Session, the Lord C[ross]- rig,^ and E. L[auder]dale.^ I enquired for my old friend, my Lord ■Wh[ytla]w,* and was told that he was sentenced to have a certain lady, one of the furies, eter- nally to switch him with rod.s, back and side (which the English call floggiug), and to pay that fury all the estate he should ever purchase for her pains.^ I shall not trouble your Lordships with any more at present, but only beg you would order it to be intimated to the Faculty of Advocates, that, in a short time, I shall write particularly to them. As for my old friend Dr. Pitc[air]n * and the College of Physicians, I have no time to write to them at present, or, if I had, I would prove, to their mighty surprize, that there is both a God and a Devil, a Heaven and a hell. Nor will I write to the Divines, otherwise I would make it appear that selfish, hypocritical people, and those who are inclined to strife, desolation, and persecution, are never admitted to these happy aboads. I am. My Lords, Your Lordships' most humble and obedient servant, William Anstruthee. 46 COURT OF SESSION GARLAND. Notes to Number IV. ^ John Menzies of Coluterallers, in the county of Lan- ark, acquired the estate of Cammo, in the parish of Cramond, and county of Edinburgh, by marriage, (13th March 1679), with Eachael Wilkie, heiress of James Wilkie of Cammo. His wife died in 1688, at the age of 37. Mr. Menzies got involved in difficulties, and in 1710 sold Cammo to Sir John Clerk of Pennycuick, Bart. It is now under the appellation of " New Saughton," the property of Mr. Watson of Saughton. Its former pos- sessor was an advocate whose independent conduct had rendered him peculiarly obnoxious to the Bench. See a most amusing account of a dispute between him and Lord President Dalrymple in the " Anecdotes of the early Admiaistration of Justice." — P. 1 7. ^ Sir David Hume of Crossrig, one of the judges, whose " Diary of the Proceedings in the Parliament and Privy Council of Scotland, May 21, 1710— March 7, 1707," was printed in 1828 for the members of the Bannatyne Club, by John Hope, Esq. Dean of Faculty. ^ Brother of the Duke of Lauderdale, to whose Earldom he succeeded in 1683. He was raised to the bench 9th June 1669, and took the title of Lord Halton or Hatton. If Fountainhall may be believed, his claim to a resid- ence in the " agreeable abodes '' is somewhat questionable, as he was remarkable for his insolent and disobliging behaviour. Haig's Senators of the College of Justice, p. 398. Edin 1832. 8vo. *Lord Whytlaw was a younger son of Hamilton of Bangor. He was a lawyer of considerable ability but doubtful integrity, for he was, like his brethren, very just " where he had no particular concern, but extremely partial where his friend or his own politicks interfered." See page 30. He held the situation of Lord Justice- Clerk at the time of his death in December 1704. LETTER FROM THE ELYSIAN FIELDS. 47 ^ His Lordship cut off his relations from his succession, and left every sixpence of his fortune to his wife, — a circumstance that gave great offence at the time, and is here alluded to. See also Scotish Pasquils, vol. I. p. 72. ® The witty Doctor Pitcairn, whose religious opinions were supposed not to be very orthodox. He prosecuted Dr. Webster for calling him an atheist. Pitcairn had been at a book sale, where Philostratus had brought a large price. A copy of the Holy Scriptures was after- wards put up, but no person would buy it. Some one observed it was very wonderful that so exceptionable a work as Philostratus should be so eagerly bought up, while no one would even bid for the Bible. " Not at aU," said Pitcairn ; " for is it not written, Verbum dei manet in aeternum ? " This witticism reaching Webster, was the immediate cause of the epithet above mentioned being applied. There was no foundation for the charge ; but Pitcairn spoke freely — could not resist a joke — dis- liked and libelled Presbyterians — and was an Episco- palian, — hinc illcB lachrymm. V. SONGS IN THE JUSTICIARY OPERA. Reprinted from the edition privately printed by the late Sir Alexander Boswell, Bart. Auchinleck, 1814, 4to. In the preface to this rare volume, it is re- marked that the " Songs of the Justiciary Opera were the light pastime of men who made no con- temptible figure in grave pursuits. We know not if any of them were ever committed to writing : many are lost and forgotten, and those that are here preserved, are given from memory." We be- 48 COURT OF SESSION GARLAND. lieve that Lord Dreghorn and James Boswell were amongst the principal contributors. The songs marked with an asterisk, are interpolations by Sir Alexander Boswell. DRAMATIS PERSONS. Caliendrostjs Maximus, Grand Clerk of the Scales and Chopping Knife, and Commander of the Forces. Hystrix, Clerk of the Rounds. BoMBYX, a very great Officer. John Black, the Pannel. „ „ ' r Orators for the Pannel. Flaw-Finder, j Peppertail, the Horse-Couper, Bizz, the Blacksmith, Peter Brown, the Exciseman, ^Witnesses. Mathew Mutchkin, Widow Mackleerie, Waiter. Judges, Jurymen, Sheriffs, Baillies, Serjeants, Mob, &c. &c. [ SCENE.— ^« Inn. Caliendrosus Maximus, et Hystrix. Duet. — Air. — Saw ye my father ? Cal. — Saw ye my Trumpeter ? Or saw ye my Macer ? Or saw ye my man John ? Syst. — I have not seen your Trumpeter ; I have not seen your Macer ; And drunk is your man John ! SONGS IN THE JUSTICIAEY OPERA. 49 (Martial Music.) Enter a Waiter. * AiK. — Hey Jenny come down to Jock Waiter. — The Baillies are waitin, — the Provost is come, — Twal permanent Serjeants, a fife and a drum ; Twa Sherras, wi' swords (but they're peaceable men ;) And some twa three mair, — and the clock's chappit ten. A Grand Procession. SCENE.— ^ Hall Enter Caliendeosus Maximus, Bombyx, Hysteix, Bam- boozle, Flaw-Findee, Macbe, Jueymen, Mob, &c. '"' AiE. — Fye let us a' to the weddin. Hysf. — Ge — en — tlemen o' the Jury, Ye'U answer until a' your names. — Walter Balwhid o' Pitlurie. Jurym. — Here. Hyst. — Mathew Powloosie o' Kames. Jurym. — Here . Hyst. — Duncan Macwhey o' Todwiddock. Jurym. — Here. Hyst. — Jacob Bafour o' Howbrig. Jurym. — Here. Hyst. — John Macindo o' Glenpuddock. Jurym. — Here , 4 50 COURT OF SESSION GARLAND. Hyst. — Hew Gib in Bog o' Daljig. Jurym. — Here . Syst. — Patrick Maerone o' Craig-gubble. Jurym. — Here. Ryst. — George Yellowlees in Cowshaw. Jurym. — -Here. Hyst. — Ralph Mucklehose in Blindrubble. Jurym. — Here. Hyst. — -Robert Macmurdock in Raw. Jurym. — Here. Hyst. — Andrew Mackissock in Shalloch. Jv rym. — -Here. Hyst. — Ingram Maclure in Benbole. Jurym. — Here. Hyst. — Gilbert Strathdee in Drummalloch. Jurym. — Here. Hyst. — Gabriel Tarn in Dirthole. Jurym.^a&re. Hyst. — Lowrie MacwUl o' Powmuddle. Jurym. — Here. Hyst. — Daniel Losh o' Benskair. Jurym,. — Here. Hyst. — John Stoupie, writer, Kirkfuddle. Jurym. — Here. Hyst. — Baillie Bole, shoemaker there. Jurym. — Here. Hyst. — Samuel Macguire in Craig-gulHon. If present. Sir, answer your name. Jurym. — Here. Hyst. — QuLQtin Maccosh in Knockdullion. Jurym. — Here. Hyst. — Gal-lery — si-lence — Ahem ! * * * * * * » # * ;-r ***** SONGS IN THE JUSTICIARY OPERA. 51 * AlE. — In the Garh of Old Gaul. Macer. — Hem ! — Si-lence. Cat. — Officer, bring John Black to the bar. (The Pannel is brought in guarded/ and Petitions for Banishment.) Air. — The Zee Big. Fannel. — send me oure the lang seas, My ain kind lordie ; send me oure the lang seas, My ain kind lordie 0. send me east, or send me wast, Or send me south or nordie, ; But send me owre the lang seas. My ain kind lordie 0. * Air. — Lass gin ye lo'e me tell me noiu. Cal. — Pannel, a halter must be your end. The fiend, at your skirts, has now his prong ; Your days, that are number'd, in penitence spend; But I'll lecture you, presently, half an hour long. Mercy were folly, if lavish'd on him ; Robbing and thieving, the gallows shall check ; Our duty is plain, we'll proceed to condemn, — John you shall presently hang by the neck. Air. — We're gayly yet. Pannel. — We're no guilty yet, We're no guilty yet, Although we're accused, We're no guilty yet. 52 COURT OF SESSION GARLAND. Afore ye condemn, Ye man hear us a bit, For although we're accus'd We're no guilty yet. {Jury are chosen, and the Indictment read.) * Air. — Grimaldi's Jig in Mother Goose. Hyst. — Whereas by the laws o' this realm, And o' ev'ry well governed land. To seize on anither man's geer, (As the tangs ance a Highlandman fand.) And whether the thief he be caught In the fact, or be gruppit out-fang. The law says expressly, and wisely. That chiel by the thrapple shall hang. And you John Black, there, the pannel. Ye robbit, assaulted, and a' And sae, gang till an assize. Sir, And underKe pains o' the law.''"' * Air. — Miss Macleod's Bed. BOMBYX. Painfull the duty is, which I must now perform, Stating a train of guilt uncommon and enorm, — Ous, — calhng my witnesses to make the fact out plain, And if your verdict's guilty, my labour's not in vain. Cientlemen, your feelings must, with justice never jar. The statutes of the land condemn the pris'ner at the bar : The law most clearly indicates the gallows, as reward, For culprits such as him between the soldiers of the guard. John Black met Peter Brown, upon the King's highway, 'With foul intent to rob, — I fear intent to slay ; SONGS IN THE JUSTICIARY OPERA. 53 John Black, the pannel, did step up to Peter Brown, And with his fist, or bludgeon, did knock said Peter down. Ferocious, atrocious, felonious also. Did then and there, with that or this, reiterate the blow ; Then seized Peter by the throat, to suffocate his cries. And most outrageously exclaim'd, " Your money, d your eyes." Enter Petee Beown. '" AiE. — The ionniesf lass in a' the war Id. Peter. — The pannel's a regardless loon, And brags that he defies man ; And bauldly threepit through the town He'd do for the exciseman. I thought 'twas nought but silly clash, That sneevlin' gowks wad tell me ; Quo' I, my thum I wanna fash. It's no sicliJce can fell me. Four cadgers rade through Halk-wood-stack, I doubted Jean Macleerie ; I took the road, when up cam Black, And dang me tapsalteerie. He rypit, maybe, for his knife, I thought I saw it glancin', He took the rue, and sav'd my life. Syne, like a de'il, gaed dancin'. Enter Peppeetail. AiE. — Braw lads o' Galla Water Fepper. — Comin' frae the toun o' Straiven, On my poor mare that had the spavin, o4 COURT OF SESSION GARLAND. I met the pannel near the Kirk o' Shotts, Like ony madman he was raivin. Black his hair, and blue his coat, — Tightly he did the ganger han'le. The mair he shuck the fallow by the throat. The steadier still I e'ed the pannel. Enter Mathew Mutchkin. * Air. — Calcler Fair. Mat. — As I cam hame frae Euglin fair, At e'en, whan it was dusky, I had enough — and may-be mair, A drap oure muckle whisky. I saw twa fallows yoke thegither, Wha they war, the taen or tither, I ken na mair nor Abram's mither, I was blin' wi' whisky. Enter Bizz. All;. — Will ye gang and marry Katy ? Bonibyx. — Pray, What is your name, friend ? tell us. Piizz. — Tammas Bizz. — I've blawn the bellows. And I've clmkit on the studdy Sin' a wean, knee-heigh and duddy. And the ganger, weel I ken. Aft he stammers butt and ben, Snowkin a' frae end to end. He's mislear'd and capernoited. And I ken Jock Black fou weel, A sturdy hand at our fore-hammer ; SONGS IN THE JUSTICIARY OPERA. 55 Bess, his wife, flytes at the chiel. But weel a wat I do condemn her. Wark, ye ken yefsels, brings drouth, Wha can thole a gaizen'd mouth ? And gif he tak a gill, forsooth Queans maun flyte, and fools man clatter. Jock, I ken's an honest lad. Thievish pranks was ne'er his custom ; Tho' he be sae sair misca'd, Wi' gowd in gowpins ye may trust him. I hae kent him sin' a bairn, A penny willing aye to earn ; And tho' he's coupit i' the shearn, Troth I ken nought ill about him. Enter Widow Macleeeie. * Air. — / hae a wife d my ain. Widoiv Mac. — I hae a house o' my ain, On the road to Hamilton ; Whiskey I sell, to be plain, Arran Water, or Campbelton. Peter, the gauger, himsel' Whiles comes pipple papple in, Pusion, frae ony big stell, He'U no pit his thrapple in. Widow Macleerie's my name, Mine's a tippeny eatin house ; Carriers find a warm hame. Mine's niest door to the meetin-house. 56 COURT OF SESSION GARLAND. As for the pannel John Black, I'm wae to see him here awa, He never wrang'd me ae plack, Gude send he won clear awa ! (The Orators for the Fannel pleads.) Am. — Deil tah the wars. Bamboozle. Fye on the laws that hang a man for stealing, Sure such penal statutes were savagely fram'd By legislators devoid of human feehng, Before divine religion mankind had tam'd. Gentlemen, tis yours, with vigour. To check the laws excessive rigour ; * Yours is the power, to you the choice is given, A father — ^husband — bends ; On you liis fate depends : 'Tis yours to take or give. To bid him die — or live ! Then here that mercy show, you hope from heaven. AiE. — * """ ■"■ * Maw-Finder. Gentlemen, now 'tis my turn to address you. And with much speaking I need not oppress you ; The proof lies before you, in writing down taken, All I do wish is to save this man's bacon. But as it is usual, some few things to mention, I say, that to steal, it was not his intention ; So be not, I pray, hke the Lords, in a fury. But bring this man off, like a sensible jury. SONGS IN THE JUSTICIAEY OPERA. 57 (Charge to the Jury.) * Air. — Merrily Dance the Quaker. Cal. — If ever a case before me came, That I could judge most clearly, This is a case, I'U boldly name, I've scrutiniz'd it nearly. To trace the truth through all its track. No witch requires, or jugglers ; The witnesses are all a pack Of drunkards and of smugglers. The counsel for the Crown, with skill. Extorted facts most glaring ; Black, when prim'd, by stoup and gill. You see, became most daring. That Black put Brown in mortal fear. The proof is clear, — clarissima ; And that he rob'd, tho' not quite clear, Presumptio est fortissima. Gentlemen, 'tis my desire To state the case precisely ; 'Tis you to judge, so now retire, And weigh your verdict wisely. The proof is strong, a verdict bring. Such honest men becomiag ; I need not say one other thing. And so I end my summing. (Jury are enclosed.) 58 COURT OF SESSION GARLAND. LowEiE Macwill o' Powmuddle, Chancellor. John Stoupie, Clerh * AlE. — Ally Croaker. Powmvddle. — In this case there's nae argument, Nae minor and nae major ; A chield had taen a glass, and had A towzle wi' a ganger. That there's nae proof o' robbery. To see, I think, ye canna miss ; Sae we the pannel man acquit, — No guilty. Sirs, — Unanimous. Five Jurymen. ) Double CJiorus by Demi Chorus bii , ^^ . tt ■ '^ Unanmious, Unanimous. ouble Chorus by ) .^.^ . tt • rr T c Unanimous, Unanimous, len Jurymen. ) Grand Chorus by \ Sae we the pannel man acquit, the whole Fifteen, j No guilty. Sirs, — Unanimous. (The Verdict is returned, Caliendrosus Maximus reads — in a passion.) AlE. — Up and Down Frisky, and fire away Pat. Caliendrosus, — A plague o' such juries, they make such a pother, And thus, by their folly, let pannels go free, And still on some silly pretext or another. Nothing is left for your Lordships and me. Our duty, believe us. Was not quite so grievous. While yet we had hopes for to hang 'em up all ; SONGS IN THE JUSTICIARY OPERA. 59 But now they're acquitted, how we're out-witted, We've sat eighteen hours here for nothing at all. (Chorus hy the whole Bench.) Tol de rol, lol de rol, lol de rol, lol de rol, Tol de rol, lol de rol, lol de rol, tol de rol. But now they're acquited, &c. (Moh without Huzza.) Note to Number V. ^ Alas ! I cannot insert this word, without feelings of the most paiuful nature ! The Town-Guard of Auld Reekie is now no more ! and a gentleman, tried before the High Court of Justiciary, must submit to the indignity of sit- ting between two non-descripts called policemen, who sport glazed hats, and handle no better weapons than batons. How different was it in days of yore ! — How dignified was the cocked hat of the gray-haired veteran ! How imposing his queue. How awful his Lochaber-axe ! But this is the a,ge of innovation and reform ; and a man will, ere long, not even be hanged, with common decency. I wonder the illustrious Hume has not, ere now, pointed out to the reformed House of Commons, the absurdity of the country being at the cost of a new rope for each new culprit, when one good one might suffice for a score ! — Printer's Devil. VI. THE JUSTICIARY GARLAND. This is said to be the joint composition of Robert CuUen, Esq. afterwards Lord Cullen, Colin Maclaurin, Esq. 60 COUET OF SESSION GARLAND. afterwards Lord Dreghorn, James Sinclair, Esq. afterwards a Principal Clerk of Session, and James Boswell, Esq. the Biographer of Johnson. 1. — Packi'fig the Jv/ry} First pray rise up Black of Greenmountain, We ken you are not yet a Peer ; Since last you condemn'd the sheep-stealer, We're aye glad to see your face here. Then pray stand up Deacon John Webster, The pride and support of the church ; Since last you commenced politician. You'll no leave your friends in the lurch. 2. — Pkculing on tlu Relevancy. Tho' the pannel does not wish the truth to disguise. Yet he pleads, that he ought not to thole an assize. For in his indictment there is such a flaw. That your Lordships from it no conclusion can draw ; For no relevant charge does the major contain ; Nor the minor the fact which it founds on explain. Thus the Hbel appears quite informal in law, And your Lordships from it no conclusion can draw. 3. — Answer. Then who would now go study law, municipal or civU, To snuff-shops let the Corpus go, and Erskine to the devil; No proposition is so plain that Crosbie won't dispute it. His arguments I so disdain, 'tis lost time to refute it. Tlie Jitdge examining a Witness. Uome up to the table, and look in my face, Eemember you are upon oath, Sir ; THE JUSTICIARY GARLAND. 61 If you alter one iota, time, person, or place, I'll whip and imprison you both, Sir. Chorus iy the whole Court. — Tall de rail, &c. 4. — The Fannel's Defence. I'm not guilty yet, I'm not guilty yet, Although I'm accused, I'm not guilty yet ; Before you condemn, ye maun hear a bit. Although I'm accused, I'm not guilty yet. 5. — Address to the Jiiry. Gentlemen, 'tis my turn to address you. And with much speaking I'll not oppress you ; The proof lies before you, in writing down taken, Therefore I hope, you wiU spare this man's bacon. But as it is usual a few things to mention, To steal, I believe, he had no intention ; Therefore be not, like the Lords, in a fury. But bring him off like a sensible Jury. 6. — Petition for Banishment to the Court. send me o'er the wide seas, my ain kind Lordies, 0, To Sidney-Cove, or where you please, my ain kind Lordies, 0, For gang this trial as it will, my ain kiad Lordies, 0, In Scotland I can fare but ill, my ain kind Lordies, 0. 7. — Intended last Speech. Ye now assembled, here attend, To witness my untimely end. And ear not unpropitious lend. To an old soldier's story. Last war when every hostile shore, Did with the British thunder roar, I in successful battle bore A share that gain'd me glory. 62 COURT OF SESSION GARLAND. The French of India, oast and west, Were hy our leaders dispossess'd. And all their Admirals confess'd, That they were beaten fairly. But now^ the difference sure is great. We hardly meet the Gallic fleet, From Yankies our best troops retreat. And with a Congress parley. Though by severity misled. Both King and Court would have me dead ; The blood I for my country shed, Will yet be my salvation : I die in hopes I'll soon be where, Great Wolfe enjoys the starry sphere ; And looking downwards, sheds a tear. To see the alteration. Petition to tlic King. I am a chief of the M'Craws, Knew nothing of your Lowland laws, Which of my stealing was the cause. But I'll not steal again, Sir. let me aff this ae time. This ae time, this ae time, let me aif this ae time, I'll never steal again, Sir. A fencible I'll guard at home. Or on the seas a sailor roam. Even common soldier I'U become. Or what else yon incline. Sir. let me aff this ae time, &c.^ THE JUSTICIARY GARLAND. 63 Notes to Number VI. 1 It is, perhaps, hardly necessary to observe, that until Mr. Kennedy's act, by which the jurymen were ballotted for, they were selected by the presiding Judge from the list of assize before him, subjoined to the indictment. It was said, during the time the Judges had the nomina- tion, that those individuals were uniformly sworn in who had previously been upon juries that had returned verdicts for the Crown; — hence, in reference to this popular belief, the authors make the Judge compliment Black of G-reen- mountain for his conviction of the sheep-stealer, and to assign this as the reason why his Lordship was " ay glad to see " his " face " on an assize. 2 In the year 1778. * The Justiciary Garland was for the first time printed by the late Dr. Duncan in a collection of macaronic poems; from what quarter he procured it has not been ascertained, — perhaps from the recitation of some of the parties con- cerned in the authorship ; it has the appearance of being incomplete, from being deficient in the ^-erdict and sentence. It is very probable that the presiding judge is meant for Lord Kames, who was very fond, it is said, of procuring convictions; see page 66. His Lordship at times did say odd things on the bench, as the following anecdote sufficiently indicates. Being on the circuit at Perth, after a witness on a capital trial had concluded his testimony, his Lordship said, " 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 I shall breakfast with him on Tuesday morning." Mr. Gillies was an elder brother of Dr. Thomas Gillies of Balmakewan, the father of R. P. Gillies, Esq. advocate, 64 COURT OF SESSION GARLAND. who is well known for his translations from the German, and as author of an interesting volume of Reminiscences of his friend Sir "Walter Scott, which originally appeared in detached portions in Eraser's Magazine. His elder brother was John Gillies, LL.D., the historian of Greece, and Eoyal Historiographer for Scotland. His youngest brother is Adam GUlies, Lord Gillies, a distin- guished ornament of the Scotish Bench. Mr. Colin Gillies, who was a leading man in Brechin, was celebrated for his kindness and hospitality — he died several years since at a good old age, and although latterly infirm, he retained his spirits to the last, so much so, that when in company with his friends, he would, over Ms cheerful glass, recur to olden times, and gratify his auditors with many curious reminiscences and anecdotes of the past. VII. THE COUMT OF SESSION GARLAND. Tliis jeu d' esprit was chiefly written by James Boswell, although Lord Dreghorn is supposed to have had a hand in the composition of it. His Lordship, says Chambers, " was extremely fond of the poem, and used to sing it frequently in the slow drawling Tiaif style which added so much to its value in the estima- tion of a last century hearer." ^ Pabt First. Tune. — Logan Water. 1 The Bill charged on was payable at sight And decree was craved by Alexander Wight ; ^ THE COURT OF SESSION GAELAND. 65 But, because it bore a penalty in case of failzie It therefore was null, contended Willie Baillie.^ The Ordinary not chusing to judge it at random Did with the minutes make avizandum, And as the pleadings were vague and windy His Lordship ordered memorials hinc inde. We setting a stout heart to a stay brae Took into the cause Mr. David Eae : * Lord Auchinleck ^ however repelled our defence, And over and above decerned for expence. However, of our cause not being asham'd. Unto the whole Lords we straightway reclaim'd ; And our petition was appointed to be seen. Because it was drawn by Eobie M'Queen.^ The answer by Lockhart ^ himself it was wrote. And in it no argument or fact was forgot ; He is the lawyer that from no clause will flinch, And on this occasion divided the bench. Alemoor ^ the judgment as illegal blames, 'Tis equity, you bitch, rephes my Lord Karnes ; ® This cause, cries Hailes,-'" to judge I can't pretend. For justice, I see, wants an e at the end. 5 66 COURT OF SESSION GARLAND. 7 Lord Coalston^^ expressed his doubts and his fears, And Strichen^^ then in his weel weels and dears ; This cause much resembles that of M'Harg, And should go the same way says Lordy Barjarg.^' Let me tell you my Lords, this cause is no joke ; Says with a hoarse laugh my Lord Elhock,^* To have read all the papers I pretend not to brag, Says my Lord Gardenstone^^ with a snuff and a wag. 9 Up rose the President ^^ and an angry man was he, To alter this judgement I never can agree ; The east wing said yes, and the west wing cried not, And it carried adhere by my Lord's casting vote. 10 This cause being somewhat knotty and perplext, Their Lordships not knowing how they'd determine next ; And as the session was to rise so soon, They superseded extract till the 12 th of June. Paet Second. 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^' a fee, And though it run nigh, it was carried to see. THE COURT OF SESSION GARLAND. 67 2 In order to bring aid from usage bygone, The answers were drawn by quondam Mess John ;^^ He united with such art our law with the civil, That the counsel, on both sides, would have seen him to the devil. The cause being called, my Lord Justice-Clerk,'^ With all due respect, began a loud bark ; He appeal'd to his conscience, his heart, and from thence, Concluded to alter, but to give no expense. 4 Lord Stoneiield,^" unwilling his judgment to podder. Or to be anticipate agreed with his brother ; But Monboddo^' was clear the bill bo enforce, Because, he observed, t'was the price of a horse. Says Pitfour^^ with a wink and his hat all a'gee, 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, Superjlua non nocent was found to be law : Lord Kennet^' 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 bum : 68 COURT OF SESSION GARLAND. 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 cases. But Tait^* a priori hurried up the causes. He prov'd it as clear as the sun in the sky That their 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. 10 The question adhere or alter, being put. It carried to alter by a casting vote : Baillie then mov'd. — In the bUl there's a raze. But by this time their Lordships had called a new cause. Notes to Numler VII. ^ Traditions of Edinburgh, vol. II. p. 158. ^ Wight. — Alexander Wight, Esquire, an eminent barrister of the period, and author of a learned treatise on the election law. A work which, although almost professionally useless since the passing of the Reform Bill, is still valuable for its historical information, and amusing from its detail of political squabbles. ^BaiQie. — WiUiam Baillie, afterwards Lord Polkemmet, an indifferent counsel, and still more indifferent judge. THE COURT OF SESSION GARLAND. 69 *Eae. — ^David, afterwards Lord Eskgrove, and Lord Justice- Clerk. He was subsequently made a Baronet. He was the son, of a nonjuring clergyman, and father of the Eight Honourable Sir William Eae, Bart. M.P. for the county of Bute, and many years Lord Advocate of Scotland. ^Auchinleck. — Boswell's father, a Judge of the Court of Session. ^ M'Queen. — Better known afterwards as Lord Braxfield. ^Lockhart. — Alexander Lockhart, Lord Covington, a very distinguished lawyer. *Alemoor. — Andrew Pringle called to the bench in I759,_died 1776. ^ Karnes. — Lord Kames's use of the epithet mentioned in the text was notorious ; whether in his own house, in the house of a friend, or on the bench, it was always slipping out. Once when on the circuit, his Lordship had been dozing on the bench, a noise created by the entrance of a new pannel, woke him, and he enquired what the matter was. Oh! its a woman, my Lord, accused of child murder, — " and a weel farred b — h too," muttered his Lordship, loud enough to be heard by those present. Karnes had a great taste for convictions, and it was alleged, used every effort to procure them. Once he had the satisfaction of convicting and sentencing two unfor- tunate wretches to be hanged. At the Circuit dinner he was in capital spirits, boasting, " he had killed two birds that day." His Lordship was sometimes addicted to what is in modern parlance termed quizzing ; and being in Perth upon the Circuit, he was one day walking across the bridge, where a toll-bar had just been put up, and met Hamilton the Professor of Mathematics at Aberdeen, (uncle of the well-known Bishop Horsley), who was a very stupid looking man ; his Lordship not knowing him, thought this a capital chance for a banter. He stopped 70 COURT OF SESSION GAELAND. him and asked, " pray ray good man, what would be the toll for a carriage and six? The Professor told him. Next he enquired what the toll for a carriage and four ? Next what was the toll for a horse ? All which queries were politely and separately answered. " Now Sir, pray what may be the toll for an ass?" "If your Lordship will take the trouble of passing thro' the toU, the keeper wiU inform you." Saying so, the Professor made a low bow and walked away, leaving the learned Lord far from comfortable. As, however, Kames relished a good thing, he took occasion after dinner to tell the story, praising the wit of the supposed idiot, when some one asked for a description of this clever fool, and having got it, he astonished the judge by telling him that this imagined natural was one of the cleverest men in Scotland, and the then Professor of Mathematics in the University of Aber- deen. His Lordship immediately expressed a wish to be introduced, and subsequently he and the Professor became very intimate. 1'^ Hailes. — Sir David Dalrymple, Bart, one of the most upright and accompKshed Judges that ever sat on the Scotish Bench. The annals of Scotland for the first time placed the early history of his native country on some- thing like a solid foundation. He was remarkably criti- cal and very severe on any omission or verbal inaccuracies in the papers before him. 11 Coalston. — George Brown of Coalston, in the county of Haddington, appointed a Judge, 1756, — died 1776. The Earl of Dalhousie, by the recent demise of his mother, is now in possession of the estate of Coalston, which she inherited from her father, the eldest son and heir of the Judge. 1^ Strichen. — Alexander Eraser of Strichen, raised to the Bench 5th June 1730, and appointed a Lord of Justiciary 1736. His Lordship married Ann, Countess of Bute in 1731, and by his Lady had one son, Alex- THE COURT OF SESSION GARLAND. 71 ander, whose grandson, Thomas Alexander, ultimately succeeded by a destination in the entail, to the Lovat estates, and was, in 1837, created a British Peer by the title of Lord Lovat. Lord Strichen died 15 th February 1775. ^^Barjarg. — James Erskine, who subsequently changed his title, as a Lord of Session, to Alva, — he was very diminutive in stature. He died in 1796. i*Elliock. — James Veitch, made a Judge of the Court of Session in 1761. He died in 1793. He owed his elevation to the Bench more to his political influence than to his legal talents. ^^ Gardenstone. — Francis Garden became a Judge in 1764. He died in 1793. He was a clever but eccentric person, not overburdened with judicial wisdom. ^® Dundas. — Robert Dundas, Esq. Lord President. 1^ Dundas. — Henry, first Viscount MelvUle. ^® Mess John. — John Erskine of Carnock, author of the Institute of the Law of Scotland. 19 Justice-Clerk. — Sir Thomas Miller of Glenlee, Bart. He was, upon the death of President Dundas, raised to the Presidency, (1788.) His Lordship held this high appointment but a short time, as he died in September 1789. He was the father of Lord Glenlee. ^^ Stonefield. — John Campbell, who became a Judge of the Court of Session, and took that title. ^^Monboddo. — James Burnet, Esq. appointed 1767, — died 1799. ^^ Pitfour. — James Ferguson of Pitfour raised to the Bench 1764, — died 1777. His eyesight was weak, in consequence of which he always wore his hat on the Bench. ^Kennet. — Robert Bruce of Kennet, appointed a Judge 1764,— died 1785. ^* Tait. — Alexander Tait, Clerk of Session. 72 COUET OF SESSION GAELAND. VIII. THi: FACULTY GAEL AND. Prom a printed broadside dated 1785, said to have been composed on occasion of the application of Mr. John Pattison, to be admitted a Member of the Faculty of Advocates.'' Tune — Tlie old woman of Grimstone. Ye orators all, Attend to my call, Lest ye suffer a Jewish dispersion ; The Faculty, (sure, To keep themselves pure,) To rogues have ta'en up an aversion. To wander about. In a dirty black clout, Tho' none are the fools to employ them ; They reckon of late Privileges so great. That they do not wish more to enjoy them. The Advocates met, The point to debate, Upon this, so important occasion ; Knaves, Writers, and fools, To bar by such rules, As will not admit of evasion. The first, I've heard say, Who spoke, was C[harle]s Hay,- — And this was the lawyer's beginning ; THE FACULTY GARLAND. 73 Writers' prentices here Should never appear, Nor people who wear dirty linen. H[enr]y E[rskin]e,^ I'm told, Thought the candidate old, If twenty and five they were past ; Tho' orator Tom,* Should a midshipman roam. And not be a lawyer at last. Says Bob,^ since 'tis true, I, at twenty and two, Was Solicitor-General designed. And in office could thrive ; It is plain twenty-five Is old age — and decay of the mind. Quoth sweet William Charles,'" We can't admit carles Who keep company blackguard and low ; Had the Justice e'er been With a gentleman seen. It had been a most singular show. Says J[ami]e C[olquhou]n,^ We'll degenerate soon. If we do not watch over the forum ; Reformers and thieves Will soon be sherives. And buy up the causes before 'em. Says old M'[Intos]h,^ If we bring in such trash, Without either kin, or connections : 74 COURT OF SESSION GARLAND. Country Procu'tors next, Will be Advocates fixt, And then play the rogue at elections. The chief thing, says C[orbe]t,' — Oh ! I cannot absorb it, — Illiterate fellows to ask in : I'm affraid we shall see People take our degree, "With no other knowledge than Erskiae. With additional scouring In his mouth, J[oh]n M'[Lauri]n,^'* His sentiments thus did portray : — Contemptuous looks. Bawdy poems,^^ or books, Should bar up the candidate's way. Honest plain I[sla]y C[ampbel]l,^'~ Who likes every sham ill, No quibblers I'll have, he did say ; Eor they never will stick, By cheat, lie, or trick, To wrest the just cause the wrong way. Says bluff R[ober]t B[lai]r," With a fierce haughty stare. All the pride of the church in his eyes,— Let us keep away all The Divinity Hall, And those who religion despise. Young Small Trash the third," Now put in a word. To shew them John Bruce's^^ fine logic ; THE FACULTY GARLAND. 75 He swore by the wig, That made him look big, He'd have nobody grave, stiff, or tragic.^" Great H[enr]y D[unda]s,^" He no turncoat was, — (Tho' many did think it a gibe, — ) That would shift wind, and veer, Like the vane on a spire. To the offerer of the best bribe. Quoth the lean demon Hugo,^^ Since to make new laws you go, Out, out of the Faculty close 'em ; Whose malicious heart. In dark corner apart. Can dictate a carmen famosum. Says rumbling S[inclai]r,^^ With a voice hke a tinkler, To enter great care we should take ; First, none but whose tone is All soft and harmonious ; Next, none with a spice of the rake. But Bumbo,^" the sour. By a fiat of power, Has clagg'd up the fools empty mouths ; To mutter none dare on't. For an Act of Sederunt Must settle the point for the Youths. Notes lo Niimher VIII. 1 Mr. John Pattison, son of the Eev. Mr. John Pattison Minister of the Gospel in Edinburgh, was admitted Ad- vocate 27th January 1787. 76 COURT OF SESSION GARLAND. ^Afterwards Lord Newton. He had, previously to passing Advocate, served an apprenticeship. ^Dean of Faculty at one time, and Lord Advocate - ject can be found. Among other readings may be mentioned, " Mrs. Macfarlane's Rabbit Dinner," " The Wasfdn'-Hoose Key," "Jock Broon's Patent Umbrella," " Willie Weedrap's Domestic Astronomy," etc. , etc. A NECDOTES OF FISH A ND FISHING. By Thomas BoosBT. Post evo. Price 3s. 6d. An interesting collection of anecdotes and incidents connected with fish and fishing, arranged and classified into sections. 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