ill KDC 177?S42" """"""^ ^""'^ 3 1924 024 630 315 Cornell University Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024630315 THE COURT OF SESSION GARLAND. THE COURT OF SESSION GARLAND. " There's rosemary, that's for remembrauoe ; pray you, love, remember : and there is pansies, that's for thought There's femiel for you, and columbine; — there's rue for you ; and here's some for me." — Hamlet. EDINBURGH: PRINTED FOE PRIVATE CIRCULATION. MDCCCLXXI. ^mi ONE HUNDRED AND FIFTY COPIES. Ko. Ls- )rp CONTENTS. I. Anecdotes of the early administration of Justice in Scotland, .... II. Lines on Sir James Stewart, Lord Advocate, III. The Poor Client's Complaint, IV. A Letter from the Ghost of Sir William Anstruther of that Uk, *- ' '. v. Epitaphs upon Sir William Hamilton of Whytlaw, VI. Complaint of the PoUysyUnble " otherwise," VII. The Merry Wives of Douglas, VIII. Songs in the Justiciary Opera, IX. The Justiciary Garland, X. The Court of Session Garland, XI. The Faculty Garland, XII. Directions to Writers' Apprentices, XIII. Epigram on the late Hugo Arnot, Esq., Advocate, XIV. Song, intended to have been sung between the Acts of a Play, in the Character of Lawyer, . XV. Ode of Sappho Parodied, XVI. Patrick O'Conner's advice to Henry M'Graugh, XVII. Epitaph on Charles Hay, Esq., Advocate, XVIII. Epigram upon the Keport that Mr Yorke was to be created Lord Dover, XIX. Epigrams on Philip Syng Phisic, by George Cranston Esq., XX. Scriptural Mottoes proposed to be put up in the Inner House instead of the Creed and Commandments, XXI. Lord Bannatyne's Lion, 1 27 28 32 35 37 41 52 C3 67 74 79 89 89 91 92 93 95 95 98 99 X CONTENTS. XXII. Notes taken at advising the Action of Defamation and Daniages, Alexander Cunningham, Jeweller, Edin- burgh, against Mr James Russell, surgeon there, 99 XXIII. Question of Competition, Keswick v. UUswater, . 112 XXIV. Literary Intelligence Extraordinary, . .114 XXV. Song, by William Erskine, Esq., Advocate, . 117 XXVI. Parody on the preceding, by George Cranston, Esq., 118 XXVII. Verses to George Packwood, Esq., by George Cran- ston, Esq., . . . . .119 XXVIII. Helvellyn, by Sir Walter Scott, . . .123 XXIX. Parody on the preceding, by John Richardson, Esq., 12ft XXX. Parody on Gray's celebrated Elegy in a Country Churchyard, by Colin Maclaurin, Esq., . 130 XXXI. Decisiones Provinciales cum notis variorum et Fasty Whyggii, ISfi XXXII. A Case for the Judgment of Solomon, . . 143 XXXIII. Lord Melville's Impeachment, . . . 144 XXXIV. A Chapter from the Book of Kings, . . 155 XXXV. Unto the Right Honourable the Lords of Council and Session, the Petition of the Clerks and Ap- prentices of the Writers to the Signet, . 157 XXXVI. The Complaint, No. 2, or Further Reasons why the Wages of Writers' Clerks and Apprentices should be increased, .... 159 XXXVII. Your Young Writer to the Signet : A Sketch, . 161 XXXVIII. A Young Lawyer's Soliloquy, . . . 1 65 XXXIX. Sketch of the First Division of the Court of Ses- sion in 1823, . . . . .168 XL. Lord Gillies, . . . . .177 XLI. Imaginary Speech of Lord Hermaud, . . 184 XLII. The Dog and the Shadow, by George Moir, Esq., 186 XLIII. Thaumaturgia, by George Moir, Esq., . . 188 XLIV. An Election Eclogue, 1832, . . .190 XLV. Jupiter and the Countryman, by Douglas Cheape, Esq. 196 XLVF. Hurrah for the Bill and the Franchise so low, . 198 XI.VII. Speech at the Opening of Parliament, as proposed at a Cabinet Council on Sunday evening, . 200 CONTENTS. XI XLVIir. The King's Speech, from the " Age," . . 205 XLIX. The King's Speech, . . . .211 L. Joys of the Jury Court, .... 215 LI. Bill of Suspension, Johnnie Gow, Merchant iu Montrose, against Johnnie BeU, merchant in Dundee, ..... 217 LII. Act of Sederunt anent Huggers, by George Moir, Esq. , 2 1 9 LIII. Res Judicata, by Douglas Gheape, Esq., . 220 LIV. Scene from the Jury Court Opera, . . 227 LV. A Familiar Epistle from Dudley to Edinburgh, . 229 LVI. The Book of the Chronicles of the City, . . 233 LVII. Book of the Proclamations, . . . 241: LVIII. Turf Intelligence Extraordinary, . . . 250 LXIX. Resolutions to be proposed for adoption at a joint meeting of Whig-Radicals and Radical-Whigs, 253 LX. Fatal Effects of Gastronomy, from the Carlton Chronicle, ..... 269 LXI. La Festa D'Overgroghi, . . . .264 LXII. Baron Schiedam, by Andrew Skene, Esq., . 277 LXIII. The Beauties of Overgroggy, by Andrew Skene, Esq. 279 LXIV. Soumin and Roumin, by George Outram, Esq., . 281 LXV. Drams, attributed to George Outram, Esq. . 283 LXVI. The Court of Session Jackson, by N. W. Robertson, Esq., ... . . 284 LXVII. Peter's Address to Bobby, . . .285 LXVIII. Robertsoniana, . . . . .287 ,LX1X. Peter's Farewell Address, by Douglas Cheape, Esq., 289 LXX. Feast of the Factions at Dalkeith, . . 294 LXXl. The Agent's Coronach for his Bain, . . 298 LXXir. Our Bleaching Greens are back again, . . 802 LXXIII. The fine old Scotch Gentleman, . . .303 LXXIV. Cupid at Broadlands in 1857, . . .308 LXXV. Lord Chancellor Cranworth, . . .314 LXXVI. Notes by Lord Gringletie of the trial Douglas against Russell, ..... 321 ORIGINAL NOTICE. 18 3 9. To those persons who are familiar with the Parliament House, — the Westminster Hall of Scotland, — and its in- mates, 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 considerable portion of the contents will, it is hoped, be attractive ; 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 Scotish Eoyal 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 practitioners or suitors with the Court of Session, many years since ; and are, — at the least the Editor ventures to think so, — worthy of preservation, as characteristic of the parties al- luded to, and the time in which they lived. Although so few years, comparatively speaking, have elapsed since the pei'sons of whom traits have been pre- served, have quitted this sublunary scene, — and although n)any of them attained no inconsiderable degree of cele- VI ORIGINAL NOTICE. brity in their lifetime, it has been found, in many- instances, a matter of some difficulty to obtain satisfactory information 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 Sir James Colquhoun, Baronet, — when a principal Clerk of Ses- sion, 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 fact be true,-;-and that such a scene did actually take place cannot reasonably be doubted — for besides the distinct recollection of an old gentlemen on the subject, who died some years since, and from whom the story was first obtained, there are still surviving, various persons who, although not present, have heard the circum- stances 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 * Mr Whyt was Adjutant of the Edinburgh Volunteers when commanded by Lord President Hope, with whom he was a great favourite. He had an excellent business, and was considered a most upright and able agent. In the latter part of his life he became very corpulent, and when on horseback, resembled in size the late Colonel Teasdale. * Eobert, son of John Craigie, Esq. of Kilgraston, 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 Cockburn. Lord Craigie was a very sound Lawyer, and his opinion in feudal matters was entitled to great consideration and ORIGINAL NOTICE. VU Craigie,) and John Burnet, Esq. used to prepare their re- ports 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 oUa podrida, and he begs to assure them it will be very much owing to their kindness in heightening the flavour, if the respect. He was opposed to the judgment of hia 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 affirmed 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 Roxburghe cause ; and as Mr Clerk was deeply interested for General Kerr, he might be somewhat nettled at the success of Mr Craigie, who was one of the leading couneil 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 appreciated. On the Bench he was invariably kind to the members of the bar ; there was no attempt to browbeat ; on the contrary, he did every thing to encourage the timid youthful lawyer. He had no favourites all counsel were treated alike; and on no occasion did he ever utter one syllable to hurt the feehngs of the pleader. When he had occasion to reprove, he uniformly did so as a gentleman. In private life he was much and deservedly esteemed,— in a word, a kinder man or more worthy citizen never breathed than Robert Craigie. VIU OEIGINAL NOTICE. dish should be deemed worthy of the palates of those literary and legal gourmets, for whose gratification it has been chiefly prepared. ADDENDUM. A variety of privately printed Addenda, and a Supple- ment, subsequently followed. Of the former not more than five and twenty copies were permitted to be thrown off. The difBculty in procuring these unpublished brochures being well known, as well as the fact that copies of the Garland and its Supplement had been for years exhausted, it was suggested that it would be desirable to have all these disjecta membra incorporated with the original work, — with such further additions as might be considered desirable. Difficult as it was to procure all the private publications, the task was after much trouble accomplished, and the materials chronologically arranged so far as the different subjects would permit. The present volume has been the result, and it is trusted that it may give satisfaction to those gentlemen with whom the idea of a limited privately printed publication originated. Al^ECDOTES OF THE EARLY ADMINISTRATION OF JUSTICE IN SCOTLAND. These Anecdotes formed the subject of an article communicated 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 Capu- lets, from whence it has been disinterred, and with various alterations and additions, has been prefixed as a suitable introduction to this Collection of Pieces, chiefly 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 Parliament 1597, — the Acts of Sederunt 1677-1679 and 1690, — the concurring and positive testimony of Buchanan, — of Johnston, — of Fountainhall, — ■ of Balcarraa, is 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 e^ven excepting Trance prior to the revolution, there can be found more 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 Juetiee 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 2 COUET OF SESSION GARLAND. 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 tui'bulent, 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 Pitcaim's Criminal Trials — a singularly curious and valuable work — will re- move aU 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 stem spirit of the age ; and it is melan- choly to reflect, that even our venerable Eeformer has spoken complacently of the murder of Cardinal Beaton, — thus inferentiaUy, if not directly, affording his high sanc- tion to the most detestable of all maxims, that " the end justifies the means." It would have been, therefore, some- what surprising if the judges should have been the only portion of the commimity uninjured by the pestilential 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 imperium " plane tyrannicum : quippe quorum arbitria sola sunt pro " legibus."t * In truth, James the Sixth, whom it has been the fashion to ridi- cule as an empty pedant, was the first of the Stewarts who really benefited the Kingdom, by gradually depressing an unprincipled Aristocracy. + Rerum Scoticarum Historia, f. 501. Ultrajecti 1668. 8vo. COURT OF SESSION GARLAND. 3 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 selfifis or be thair " wiffis or seruandes, (to) tak, in ony time cuming, buddis, " brybes, guides or geir fra quhatsumever persone or per- " sons presentlie havand, or that heirefter sail happyne to " have, any actionis or caussis persewit befoir thaime, " aither fra the persewer or defender," under pain of con- fiscation. 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 turn " opinio, et omnium sermone percrebuit, pecuniosum hom- " inem, neminem potuisse causa cadere. Alexander Eeg- " ius,-t* Advocatus acer, ut vehemens, illam labem et " ignominiam ordinis callide observans, a clientibus suis " pecuniam accepit : quam corruptis judicibus, pro suffra- " giis divideret. Hsec et similia in causa fuere, ut totus " ordo gravi diuturnaque infamia laboraret." During the time the bench was dignified by the presence of the Earl of Melros, (afterwards Haddington,) who for many years held the high office 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 * Johnstoni Historia, p. 231. Amst. 1615, folio. t Alexander King was Judge of the Admiralty Court, and author of a treatise in Latin, still unpublished, upon Naval Laws and Cus- toms: there is a MS. copy of it (A. 2. 16.) 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 bene- ficially be consulted. 4 COURT OF SESSION OAELAND. 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.t It has been said, and although there does not seem to be suffici- ent authority for assuming the fact, it is far from improb- able, that during the usurpation, the laws were righteously and efficiently administered, and that the English judges, free from local prejudices, and uninfluenced by private feelings, 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 extreme 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 still 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,J 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 Novem- ber 1690, their Lordships engaged, " upon their honours, to observe the conditions "of the 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 observantia. It may be here observed, that by the act last noticed, it • Sir Alexander Seton, Earl of DunfernJine. t Letters and State Papers of the reign of James VI. Edin. 1838, 4to, privately printed for the Abbotsford Club. t 6th November 1677. COUET OF SESSION GAELAND. 5 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. Unques- tionably, 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 not to be expected that the " peat" should deal with his patron without receiving a suit- able remuneration. This office seems not to have been con- sidered disreputable, for if we may believe a popiilar rhyme made upon the influential and prosperous family of Mel- ville, the younger sons of the Nobility 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 .=on, the third son is a pate man, " And if your purse be fuU enough, it will end all 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 intended for pet, but, if we may refer to the somewhat questionable 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 * No. 62, Sep. 17, 1703. 6 COURT OP SESSION GARLAND. " interest of the judges, who [the judges] are each attended " by a Pat and a Secretary ; 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 Patrick, and when the suitors " came about soliciting his favour, his (question was, have " 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 while his brother judges were " robing, he would tell them what pains his son had taken, " and what trouble he had put iiimself to, by his direc- " tions, in order to find out the real circumstances of the '• dispute, and as no one on the bench would be so un- ' mannerly 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 ha? 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.e., 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 " Eobert * Robert Cook was admitted Advocate upon the 13th November 1677. He was laid aside for not taking the Test ; but was restored along with Mr John Inghs upon its removal "without," remarks Fountainhall, " as much as either a dispensation from the king, or " application by a bill to the Lords ; for the President (Lockhart) COUliT OF SESSION GARLAND. 7 " 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,t his sone now Sir John, " By all is declared to be peattie patron. " It's true, my Lord Register J at first did appear " A vacant place to have, but your petitioner doth fear, " For noe other end did his brother of late " 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 his daughter, makes thousands a-year. " said to them, they needed not." — ^Historical Notices, vol. ii., p. 766. — The entire poem will be found iB " A Book of Scotish Pasquils," Edinburgh 1868, p. 224. * Sir James Dalrymple, Viscount of Stairs. t Mr. Charles Maitland, afterwards Earl of Lauderdale. t Sir Archibald Primrose. II 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. § John, afterwards Sir John Hay, of Murie, passed Advocate upon a petition to the Lords upon the 28th June 1680. Fountainhall in his curious and valuable collection of cases before the Privy Council, Courts of Session, and Justiciary, shews that he had been at law for a series of years with " Powrie Fotheringham," and mentions that their disputes were settled upon the 14th August 1684. Pitmedden, Eeidford, and Edmonston, Lords of Session, had 8 COUKT OF SESSION GARLAND. " Newbyth * hertofor went snips with the peats, " Bot having discovered them all to be cheats, " Eesolves for the future his sone Willie Baird, " Should be peat for his house as well as young laird. " My Lord Newton, t 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 fly ting, " Which they doe call solicitatione. J" been appointed Commissioners to take probation : it appears that after an ordinary northern fashion, there was to be tolerably hard swear- ing on both sides, — fifty witnesses having been tendered on either side. The learned Commissioners reduced the number to twenty wit- nesses a-piece, and having done this judicious act, proceeded to deal with the parties, and by their sweet voices, induced Murie to offer and Powrie to accept thirteen thousand merks, and "so they agreed " this tedious and expensive plea."- — Fountainhall's Decisions, Edin. 1759, vol. i., p. 301. Historical Notices (Bannatyne Club) vol. ii., p. 551. * Sir John Baird, made a Judge Nov. 4, 1664. t Sir David Falconer. t 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." COURT OF SESSION OAKLAND. 9 This abuse was strictly in keeping with the constitution of the Court. The judges were selected, not on account of their qualifications for office, but because their subser- viency rendered their appointment useful to their patrons ; men of probity and honour were carefully excluded, and the law thus administered became the engine of tyranny and oppression, so that 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 filed with his own creatures, having " at that time many 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 con- cerned, to the Honourable Eobert Boyle : — " A Scotch gentleman having entreated the Earl of " Eochester 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 iitmost 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 10 COURT OF SESSION GARLAND. " success in business, if he knew not first the man, wliom " perhaps his Lordship had some reason to conceal, be- " cause, said he to the Earl, ' if your Lordship were as well " ' acquainted with the customs of Scotland as I am, you " ' had undotibtedly known this among others : Show me " ' the man, and 1 shall show you the law,' giving him to " understand that the law in 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 Parliament -I* 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 registration ; 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 Forbes to that high ofiBce.J It was in consequence of a manoeuvre of this kind that an attempt was made to control the Court by an Appeal to Parliament. In a law-suit between the Earls of Dun- fermline and Callander ; 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 Dalrymple, * A Moral Discourse on the Power of Interest, by David Aber- cromby, M.D. London, 1691. P. 60. t 1672, cap. 16 §5-12. } Laiiig's Scotland, vol. 4, p. 416. Lond. 1819, 8vo. COUET OF SESSION GARLAND. 1 1 afterwards Viscount Stair, an illustrious name iii the anuals of Scotish Jurisprudence, we reluctantly admit, lent himself to his Grace's measures, and in defiance of the recent Statute, called the cause out of its regular order. The resnlt was, of course, favourable to the Duke's protegee ; and Lord Callander (then Lord Almond) entered an Appeal to the Scotish 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. The President and some of his creatures took alarm at this decisive measure ; and, from the influence they pos- sessed at Court, induced Charles II. and his ministers to suppose that this step was a most factious and dangerous 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 prohibiting all Members of the College of Justice from sanctioning or countenanc- ing them in future. * The Marquis of Huntly, on behalf of the Earl of Aboyue, his nephew, followed Lord Callander's example, by entering an appeal in a cause in which his ward had been unsuc- cessful, but this appeal, as well as the preceding one, was annulled by the letter before alluded to. Lord Fountain- hall, in his unpublished manuscripts, gives the following account of what subsequently took place in the latter case. " "When the Marquis returned from the French camp, my " Lord Lauderdale persuaded him judicially 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 insinuations to hope a redress. " Yet, after a second debate, they adhered to their former * Acts of Sederunt, p. 114. 1 2 COUET OF SESSION GAfiLAND. " 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 incident 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 anticipated. 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 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 Linlithgow, 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, j- " 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. * Kirkton's Church History, p. 347. t 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, p. 179) commences: " Starr's neck, mynd, wife, son, grandson, and the rest, "Are wry, false, witch, pets, parricid, possest: " Curst be the cause of Scotland's constant woe, "That hinders Justice in even paths to go." COUET OF SESSION GARLAND. 13 " 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 my humour weill." A Parody on "Farewell fair Armida,''* is perhaps a better specimen of the legal wit of the time. — 1 Farewell Craigie Wallace, t 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. 2 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 aU be restored on Martinmas day. 3 On hills and in vaUies, midst paitricks § and hares, We'U 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. 4 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. * By Dryden. •f Sir Thomaa Wallace of Craigie, Lord President, j Letter from Charles the II, dated 19th May 1674, disapproving of Appeals to Parliament. § Partridges. 1+ court of session garland. Answer. 1 Blame not Craigie Wallace, nor call him your grief, It was Stairs, and not lie 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 foUy on Martinmas day. To hills or to vaUies that ye ^viU repair. It seems of our favour ye mean to despair ; Of your joint resolution we daily do hear. Yet grieve we to think that it cost you so dear. 4 But if male-contents to our Prince should convey, And show we are useless when you are away. We'll 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 wine's 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 commend. Because you are the Faculty's wrong end. COUKT OP SESSION GARLAND. 15 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 made, and after having been contuma- cious for considerably more than twelve months, upon mak- ing proper submission, they were, upon the 25th 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. At this period a Tribunal which had existed for many years followed the example set by the Supreme Court. The " Secret," or, as it is now usually called, the Privy Council of Scotland, had a jurisdiction not very distinctly defined, but which extended to such cases of wrong for which no redress could be given in common courts of law, and in all questions affecting the public peace. The members were appointed by the Crown. James VI. had upon more than one occasion endea- voured to bend the Privy Councillors to his will ; but their Lordships were not always inclined to comply with his demands. For instance, a Pole, called Stercovius, visited Scotland after James had ascended the English throne, and received a very rude reception from the inhabitants. Dressed in the habiliments of his own land, he excited the merriment of the Scots, — who insulted him in every * A play upon Lord Stair's family name of Dalrymple, which was pronounced as if spelt with aA u instead of a y. 16 COURT OF SESSION GARLAND. possible manner, so that the unfortunate man was but too happy to get back to Poland, where he took his revenge by lybelling in no measured terms the people of Scotland. This unlucky production was seen by James, who became so irate that he procured the execution of the author at a cost of about six hundred pounds, — at least such was the monarch's statement of the money expended. His Majesty then applied to the Privy Council to make the Royal Burghs responsible for the sum so disbursed. In this endeavour he failed, as their Lordships decided that they had no jurisdiction — and that the discomfited monarch must apply to the Judge-Ordinary. Another instance is that of the Eglinton Earldom, which, with the estates, had been transferred by the last Mont- gomerie of the direct male line, to a second son of Lord Seton by his wife Lady Margaret Montgomerie. In this transfer the consent of the king was not asked. Upon the death of the granter, young Seton not only took the estates but the name of Montgomerie, and assumed the dignity of an Earl. This he did by retour as heir of provision of his relative, and a Crown confirmation of the disposition and infeft- nient in his favour. At the period of the deed granted by the last Mont- gomerie this was the ordinary course of proceeding, and it received the sanction of the Crown, when the original con- veyance and infeftment were confirmed. Thus the Dis- ponee became feudally vested in the Eglinton title and estates according to the law and usage of the time. James did not choose to recognize the young Earl, and desired the Privy Council to cause him put down his title and submit to the Eoyal pleasure. Their Lordships accordingly ordered Eglinton to appear before them, which he did by his uncle as his proxy, who justified the assiimp- tion of his nephew as strictly in conformity with the law and practice of Scotland, and then respectfully declined their jurisdiction. After deliberate consideration, the COURT OP SESSION GARLAND. J 7 Privy Council returned their opinion, that if his Majesty was desirous of setting aside the right in the person of Lord Eglinton, he niust proceed before the Court of Session, the only competent Court for trying heritable questions.* It may be observed in passing, that the very titles proposed to be challenged by James are the only ones by which the Setons became Montgomeries, and held and now hold the honour and estates of Eglinton. The return of the Stewarts does not appear to have restored to the Lords of the Privy Council that indepen- dence which they had not infrequently displayed at a previous period, for, during the reign of Charles IL, the Scotish Privy Council became as notorious as the Court of Session for its venality and rapacity. Lord Fountain- hall records a somewhat amusing instance of the manner in which this honourable Court exerted its powers to serve particular friends. John eighth Lord Elphinstone was debtor by bond to William Porbes of Tolquhan in the sum of 10,000 merks, which he was not very willing, or rather, perhaps, was unable to repay. Luckily for his Lord- ship, Porbes, a man of somewhat irritable temperament, quarrelled with his clergyman, Mr. John Strauchan, and, in the heat of the moment, gave him a " cuff." Such a chance as this did not escape the vigilance of his debtor. Porbes was cited before the Privy Council, where, after the fashion of a modern election committee, the deci- sion had been already arranged. He was adjudged to pay a fine of 10,000 merks to the Crown, five hundred merks to * That the Court of Session was the only proper Forum for trying Peerage claims prior to the Union does not appear generally known in the south; but that such was the case is undoubted. It can hardly be credited, but nerertheless it is a positive fact, that more than one Lord Chancellor and several Crown officers of modern times actually supposed that the Scotish Parliament was exactly the same as the English Parliament, and that the Scotish Nobles sat in one house, and the Scotish Commons in another I B 18 COURT OF SESSION GAELAND. Mr. Strauchan, and four dollars to every witness adduced against him, and the better to enforce implement of the sentence, he was ordered to he imprisoned till he had obeyed it. Elphinstone had previously provided that he was to get the fine, and as it was the preeise 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. Fountainhall 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, advocate,* 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 19th June 1688 from the bench, and it does not seem that any thing was done to his opponent, who published an account of the whole proceedings under the following singular title : — " Oppression under the Colour of Law ; " or. My Lord Harcarse his new Praticks : As a way- " marke for peaceable subjects to beware of pleying with " a hot-spirited Lord of Session, so far as is possible when " arbitrarie Government is in the Dominion. — Proverbs " XX, verse 21, An inheritance may be gotten hastily at " the beginning, but the end thereof shall not be blessed.''-f- 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 *Thi8 gentleman, during the Usurpation, was Solicitor-General to the Protector, a circumstance which would not tend to his advantage at the Restoration. t A few copies of this legal curiosity were reprinted at Edinburgh by Stevenson, 1827. Quarto, COURT OF SESSION GARLAND. 19 description prepared by the party aggrieved, as evidence of the corrupt practices of Lord Harcarse. It is too probable, however, that the accusation was not without some foundation ; for, laying aside entirely the " habite and repute " character of the judges, it is remarkable that Fountainhall, 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 Dalry.-f* It would seem that a Dr. Johnston had, by a codicil to his will, left the sura of £3000 towards the establishing a grammar school in the parish of Dairy. Payment of this sum was resisted by a Mr. Joissy,J one of the executors, and an action before the Court of Session was thereupon brought at the instance * Lord Harcarse reported from 1681 to 1701 ; but no notice of this remarkable case is taken in the printed volume of decisions. t The entry is regularly attested by the subscription of the differ- ent heritors. There seems no reason for doubting the accuracy of the statement. t 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 Ravelston, Bart. — " April 5, 1680. To John Jossie for cutting my sone Adames tongue, being tongue-tacked, £5, 16s." (Scots money.) 20 COUET OF SESSION GARLAND. of the parish. The defender had enlisted under his ban- ners Alexander Gibson of Dury, one of the principal Clerks of Session, and by their joint influence they were en- abled 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 " Ordinary in the Outer-House, behoved to sit from ten to " twelve in the forenoon : for by the 21st act of the fourth '' session of the first parliament of King William and " Queen Mary, it 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 the 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.'' * Sir Hew Dalrymple of North Berwick, Bart, second son of the Viscount of Stairs. He had the reputation of a first rate jobber. COURT OF SESSION GARLAND. 21 Of this irregular conduct the parish found it their duty to complain ; and John Menzies of Cainmo, an eminent lawyer, prepared and boxed a declinature of the Lord Lauderdale, in name of Mr. Ferguson of Cairoch and the other heritors, stating the violation of the Act of Parlia- ment 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, hav- ing 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 " behooved 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 " gentleman 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 out- rageous 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 22 CDUET OF SESSION GARLAND. " courage to protest for remeid of law to the Scotch Par- " liament, 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 influence 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 dis- " played a forward haughty mind. Betwixt man and man, ?' where he had no particular concern, he was just, but " extremely partial where Ms friend or his own 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 month of December 1704, gave rise to a number of epitaphs, by no means flattering to his memory, or complimentary to his wife, who was a young woman when her husband got a sum- mons to attend his Satanic majesty, as the following Pasquil indicates : — 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 tjranny, lust, and oppression. Twixt the Devil ajid Whytlaw the poor wretches damn'd Will be sore put about in that hot land, FoT now since the Justice-Clerk got the command, They could hardly be worse off in Scotland. * Lockhart Papers, vol. i., p. 107. COURT OP SESSION GARLAND. 23 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 arrive, 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 an 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 " injustice of their suits, but their influence and interests " vnth 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 Toulis, Esq. of Woodhall, and his agent Thomas Gibson of Durie, 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 surprised Sir 24 COURT OF SESSION OAKLAND. " 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 Elphinston and Lady " Dun. My Lord promises to back his Lady, and to ply " both their Lords, also Leven and his cousin Murkle.f " 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 * He died 2d March 1747. His grandfather was an Edinburgh Clothier, who acquiring considerable wealth, became Dean of GuUd, and subsequently Lord Provost of Edinburgh. His great grandfather was a sexton, if we may give credit to a pasquinade entitled "a " gentleman's 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, " Tin one did thus extract your pedigree, " His grandsire was a sexton fairie elf, ' ' Lived on the dead, and digged graves for pelf " He left imto his son, which severall yeares " He did augment by needle, thimble, shears, " Tin pride that devill him threw and did distill " Through needle-eye, and made him Dean of Gild," &c. Sir Walter Scott used to teU an anecdote of one of the family who set up as a man of fashion, and who being present at a meeting of the freeholders of Haddington, took occasion to rally an old gentle- man 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." t John Sinclair of Murkle, appointed a Lord of Session in 1733. X 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. COUKT OP SESSION GARLAKD. 25 " 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)t and " went to Andrew Bromefield att night, and.went off post " next morning ; and what made him despair of getting " any thing done was, that it has heen 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 PentyJ has not been in town as yett, and I fancy " its by him the other must be managed. The Ld. J(us- " tice) 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 Drum- " more§ dissuaded bringing in the plea last winter. 1 " have desired Lord Raining to speak, but only expect his " answer against Tuesday or Wednesday."|| It is not our intention to pursue these remarks further, although we believe that judicial corruption continued long after the Union. We might adduce Lord President Forbes as a witness on this point, who, one of the most upright lawyers himself, did not take any pains to conceal * Sir Walter PriBgle of Newhall, raised to the bench in 1718. t Andrew Fletcher of MUton was appointed, on the resignation of James Erskine of Grange, Lord Justice-Clerk, and took his seat on the Bench 21st June 1735. t Probably Gibson of Fentland. § Hew Dairymple of Drummore, appointed a Lord of Session in 1726. 11 The original letters were in the charter-chest of the late Sir James Foalis, Bart, of Woodhall. 26 COUET OF SESSION GARLAND. 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 removed, and the old compend, — " Shew me the man and I'll shew you the law," is not likely to be revived. * A story is told of one of the judges of the old school, 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 a neighbouring proprietor, which had been brought to a termination unfavourable to the wishes of the former by the admirable manage- ment 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 received with becoming gratitude and atten- tion 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 woidd con- tinue his patronage. My Lord smiled and bowed, and looked par- ticularly amiable. Presuming on his good nature and complacent demeanour, one of the number ventured to hint, that his Lordship's services might again be requked, as they, emboldened by their former success, had commenced another new suit, and he was humbly requested to carry them through with that one also. " Na, na I canna do that," said my Lord ; " why?" exclaimed aU the astonished Magistrates, anuzed probably at what they conceived to be a most uncalled for scruple of conscience, " because," rejoined the judge "ye're ower late, I've abeady gain my promise to the opposite party." COURT OF BESSION GABLAND. 27 III LINES ON SIR JAMES STEWART, LORD ADVOCATE. Sir James Stewart was very unpopular with the Jacobite party, who vented their spleen against him in lampoons. To them he was in- debted for the sobriquet of Jamie Wylie.* He held the oflaoe of Lord Advocate, with the exception of one year, from 1692 uutU his death in 1713.+ The beautiful estate of Goodtrees (commonly pronounced Gutters) and now caUed Moredun, in the Parish of libberton, belonged to him. In the Sootish PasquUs will be found the following pithy lines upon Sir James, from a MS. of old Robert Mylne. Sir James Stewart thoul't hing in a string. Sir James Stewart, knave and rogue thou art. For thou ne'er had a true heart to God or King, Sir James Stewart thou'lt hiug in a string. Quam formosa tua et facies tenebrosa Stewarte, Quam simplex, duplex, quam falsum pectus honesti, Quam verax mendax, oh I quam suavis amams. Quam celeste tecum meditans terrestria pectus, Tuque colens Christum, ccelum, nee Tartara credis Non mirum quamvis ludis utraque manu. PARAPHRASED. How wonderous 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 judgment and thy dangerous wit : Thy visage 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. * Scotish Pasqufls, Edin. 1868, page 298. + Transactiona of the Antiquarian Society of Scotland, Vol. i., p. 320.— Edin. 1792, 4to. 28 COURT OF SESSION GARLAND. By nature false, yet honest if thou please, 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 centr'd here below. Wheedling's thy trade, and spite of all commands Thou find'st the art to play with both the hands. III. THE POOR CLIENT'S COMPLAINT. DONE OUT OF BtJCHAJTAN. From a broadside in the Library of the Faculty of Advocates, upon which is written the following MS. Note. " Epigram 1. Book 1st, by Master Andrew Simpsone, Episcopale Min- ister, 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 controversial, topographical, and poetical. His account of Galloway was a few years since published from a MS. in the Faculty Library by the late Lord Dundremian. The poem, if it can be so termed, — entituled " Tripatriarchiehon, or the Lives of the three Patriarchs, Abraham, Isaac, and Jacob, extracted forth of the sacred king, and digested into English verse. " Edinburgh, 1705, 8vo, — is known to the book coUeotor 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 " Its best " To sue him at the Law. I'U 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. COURT OP SESSION GARLAND. 29 Engag'd thus far, be't better be it worse I must proceed, and thus I do depurse : — For writing summons, signing, signeting. With a red plaster and a paper ring ; For 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 homings, 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, 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. i 30 COUET OF SESSION GARLAND. For coal, for candle, paper, pen, and ink, And such like things, which truly 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, subservants, petty fogers, 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, meanwhile 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. 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, vinegaf , — 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 ; *01dKirke. COUET OP SESSION GAELAND. 31 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 will 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 perhaps that I Have penn'd a satyre 'gainst the Faculty. 'Gainst those who by their accurate debates Maintain our rights and settle our estates, Wlw do their very lungs with pleading spend 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 grandeur 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), Bust must be scour'd off, cobwebs swept away. 32 COURT OP SESSION GARLAND. IV. A LETTER PEOM THE GHOST OF SIR WILLIAM AN- STRUTHEU OF THAT ILK, ONCE SENATOR OF THE COLLEDGE OF JUSTICE, TO THE LORDS OF SESSION AND COMMISSIONERS OF JUSTICIARY. From a MS. preserved in tte Collections of tlie indefatigable Wodrow. Lord Anstruther was appointed a Judge of the Court of Session 1st November 1689 : was nominated a Justiciary Judge 9tli November 1704, and died at his lodgings in Edinburgh, 24th January 1711. He was the author of a work entitled "Essays Moral and Divine." — Edinburgh 1701, 4to. My Lords, Elysian Fields, 27 Jany. 1711. Having had the honour for several years to be one of your number, and being obliged, very much against my will, to leave soe good company and society, I tlio't it my deuty to pay you my respects by this, which Charon pro- mised to send to the earth, by the first messenger of death who should 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 iirst imputed to his civility to me, who, as he was informed, was quickly to follow, not con- sidering that ixobody 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 trevi veu of justice, which here soe impar- tially reigns, that your Lordships, at present, cannot com- prehend 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 COURT OF SESSION GARLAND. 33 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 President of the Court. There is here noe delay of justice — noe counting of noses — noe sendino' home partys to take a pint, and 'gree the matter. Sentence is immediately given, without acts before answer ; nor are there reclaiming bills upon bills, and the judges doe not trouble themselves with many avizandums to themselves. Here there is not soe much as the knowledge of a noe pro- cess. Some criminals would give a great deal for such ane advice, to delay their punishment for some time. And sure 1 am Mr. John Meinzies of Cammo* would make a considerable fortune in this place. Clerks and extractors doe not here unconscionably peil the leidges of exorbitant deues. There is hoe 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 fundi. When persons are really guilty, there is no desertion of diets — no abstracting of evidence, nor sending men out of the way. Soe care- ful 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 * John Menzies of Coulterallers, in the county of Lanark, acquired the estate of Cammo, in the parish of Cramond, and county of Edinburgh, by marriage, (13th March 1679), with Rachel 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 possessor 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 Administration of Justice." —P. 21. C 34 COURT OF SESSION GARLAND. dismissed, and had a more favourable sentence then pro- bably I would have got, had I been more skilled in the quirks and subtUties of law. In the agreeable aboads, T found only two Lords of the Session, the Lord C[ross]rig,* and E. L[auder]dale.f I enquired for my old friend, my Lord ■Wh[ytla]w,J and was told that he was sentenced to have a certain lady, one of the furies, eternally to switch him with rods, back and side (which the English call flog- ging), 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. Pit- c[air]n|| and the College of Physicians, I have no time to * 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 Clnb, by John Hope, Esq. Dean of Faculty. + Brother of the Duke of Lauderdale, to whose Earldom he suc- ceeded in 1683. He was raised to the bench 9th June 1669, and took the title of Lord Halton or Hatton. If Fountainhall may be be- Ueved. his claim to a residence in the " agreeable abodes," is some- what questionable, as he was remarkable for his insolent and disoblig- ing behaviour. Haig's Senators of the College of Justice, p. 398. Edin. 1832. 8vo. J 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. § 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 next Article. II The witty Doctor Pitcaim,' whose religious opinions were supposed not to be very orthodox. He prosecuted Dr. Webster for calling him an atheist. Pitcaim 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 peison would buy it. Some one observed it was very wonderful that so exceptionable a work as Philostratus should COURT OF SESSION GARLAND. 35 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, WiLlJAM AnSTRUTHER. V. EPITAPHS UPON SIR WILLIAM HAMILTON OF WHYTLAW, LORD JUSTICE CIERK. LocKHART of Camwath observes that Whytlaw owed his elevation to his political zeal ; he " displayed a forward, haughty mind. Betwixt man and man, where he had no particular concern, he was juat, but extremely partial where his friend or his own politics interfered. He had a sound, soHd judgment, but all his actions were accompanied with so much pride, vanity, ill-nature, and severity, that he was odious to everybody." * Whytlaw took his seat on the bench upon the 29th December 1693, and was subsequently appointed to the office of Justice-Clerk, a few months before his death, which happen- ed in December 1704. Lord Whytlaw amassed upwards of seven thousand pounds sterling, a large sum in 1704, all of which he left to his wife, in order to buy, as was said, a husband. Lady Whytlaw was, it would appear, a sister of Sir John Houston of that Ilk. The following anecdote relative to her niece, her sister-iu-law, brother, and a fashionable dancing master, may amuse the reader ; — be so eagerly bought up, while no one would even bid for the Bible. "Not at all,'' said Pitcaim; "for is it not written, Verbum del manet in aetemum? " This witticism reaching Webster, was the im- mediate cause of the epithet above mentioned being applied. There was no foundation for the charge ; hut Pitcaim spoke freely — could not resist a joke — disliked and libeUed Presbyterians — and was an Episcopalian, — Miic illx lachrymx. * Lockhart Papers, vol. i., p. 107. 36 COUKT OF SESSION OAKLAND. In the month of January 1700, Miss Anne Houstoun, a daughter of the baronet of that name, and a niece of Lady Whytlaw, then the wife of Sir William Hamilton, a Lord of Session, was placed with a fashionable dancing-master in the northern metropolis, called William Balham. His terms were one hundred pounds Scots for a year ; one half payable in advance, and the other at the termination of the contract. The young lady commenced receiving his instructions till the month of August, when she went to the country, from which she did not return until November, when she resumed her lessons with Balham ; but did not continue with him because the advent of Mons. le Roche, a French artist,- took the northern capital by storm, and captured numerous sprigs of quality at the rate of " a guinea a month." This opportunity of acquiring the graces was not overlooked, and Lady Houstoun and her sister-in-law, the judge's wife, removed the fair creature from her original teacher, and placed her with the all-con- quering Frenchman. The papa, who knew the value of a guinea better than his wife or sister, was of opinion that one month was sufficient, and Miss Anne was again placed with her first instructor, with whom she continued untU the con- tract was implemented, so far as the dancing-master was concerned. Sir John, however, was not disposed to perform his part of the premises by paying the remaining fifty pounds Scots, or 4^. 3s. 6d. sterling; and, acting, it may be presumed, under the advice of his brother-in- law the judge, declined payment for reasons which now-a-days might be considered strange. It having transpired that the dancing-master had been a very naughty man, and a confirmed offender against morality. Sir John contended he was barred personati exeeptione, from seeking payment according to the contract. Had his "lapses, re- lapses, and trelapses " occurred during the currency of the engage- ment, and had Miss Anne been removed in consequence of any such discovery, the defence would have been intelligible ; but as the young lady was allowed to remain the entire period, it certainly was an original, but assuredly not an equitable plea, to maintain that the man's vices precluded him from j-eceiving the wages he had earned. Sir John might, on the same .pretence, have refused to pay his butcher, his grocer, or his baker, if one or all of them had been brought before a Kirk session for similar effences, — Kirk sessions having an especial taste for such investigations, the members finding much pleasure in ferretting out instances of what was not inappropriately called " Sculduddery . " The final result has not been ascertained, but it is not improbable that sooner than engage in a lawsuit with a great man like Sir John, a member of Parliament, backed by a high-spirited Lord of Session, Balham prudently retired from the contest. COUET OF SESSION OAKLAND. 37 I. Stand, passenger, and pass not by, Till that ye know who here doth lye. A Lord he was, some, time ago deceast, Abhorer of King, Prophet, and of Priest. And of Archbishops, Bishops, and their kynd ; Brawler of men who were not of his mynd. His means were still his God, his dog, his child, His wife the Dalilah who him beguiled ; ' His Scripture creed, and his new Gospel light, Were all confined into his claim of right ; For which he's damned, and his body rotten ; He's mock'd by the age, and his practiques forgotten. In hell for ever, he ryres the claim of right. And giv'st King William for his a to dight. ON THE BANK AND WHYTLAW. II. When bank is broak, and Whytlaw dead. The rump will run ow'r the head ; When credit's gone, our laws are under, Scotland's low, who can wonder ? When we're Glencoed by land and sea. Who will relieve us ? What think ye 1 VI. COMPLAINT OF THE POLLYSYLLABLE "OTHERWISE," AGAINST Mr. JOHN HOENE, ADVOCATE. From the pen of Hew Murray Kynnymond, Esq. Advocate. This gentleman succeeded, in the month of March 1736, to what remained of the estate of the ancient family of Kynnymond, as well as to the separate property of Melgund, under an entail executed by his brother uterine, Sir Alexander Murray, Bart, dated the 13th September 1710. His mother, Janet Eochead, daughter of Sir James Eochead of Inver- leith, was twice married, — 1st, to Alexander Murray of Melgund, by 38 COURT OF SESSION OAKLAND. whom she had one son, Sir Alexander the entailer ; ' and 2d, To Sir David Dalrymple of Hailes, Bart. , f by whom she had Sir James, his successor, and Hew who succeeded to the Kynnymond and Melgund estates, and died December 23, 1741. In the notice of his demise inserted in the Caledonian Mercury, he is described as " a most "friendly and humane gentleman, and eminently distinguished for " his knowledge in the law, and eloquence at the bar." J He mar- ried Isabella Somervell, one of the daughters of Hugh Somervell of Innerteil, W.S. and had issue, one daughter, Agnes, who, by her marriage with Gilbert, afterwards Sir Gilbert Elliot, Bart, carried the Kynnymond estates into the Minto family. Tiat family, although they take the name of Kynnymond, have not any connection with the ancient race, otherwise than by succeeding to the estates, under the before-mentioned entail. Mr. Hew Murray Kynnymond died considerably in debt, and the pro- duce of the sale of his town house, books, and furniture, was insuffi- cient to satisfy the demands of his creditors. His daughter had various lawsuits with them, the Session Papers in which are preserved in Lord Elchies' Collection, vol. 18, 1742-1749. Mr. Home, who seems to have treated the PoUysyllable with such con- tempt, was an Advocate, and for many years one of the Dean's Council. He was possessed of a good estate in Aberdeen, beiiig designated Home of that Ilk. His daughter and heiress married Hew Dalrymple, a member of the Faculty of Advocates subsequently raised to the bench by the title of Lord Drummore. The estates of Home now belong to his Lordship's grandson, Sir Robert Dalrymple Home Elphinstone, who was created a Baronet 16th June 1828. To the Eight Honourable the Lords of Council and Ses- sion, the Complaint of " Otheewise," an Injured Polly- syllable and Adverb, against Mr. John Hoen, Advocate ; Humbly sheweth, That it is with grieff and vexation your petitioner is induced to intrude upon your Lordship's time in the hurry of the end of a Session, but the circumstances of the case make it absolutely necessary. * He died in 1713. t 4th April 1691. t In the copy from which this article is printed, there is written — " This was done by Mr. Hew Dalrymple, Advocate, afterwards Hew Murray Kynnymond of Kynnymond, the prettiest gentleman of the whole faculty in his time." COURT OF SESSION GARLAND. 39 What gives occasion to the present complaint, is a cer- tain paragraph, contained in a paper intitled "Answers " for the Duke of Gordon to the Petition of the Earl of " Murray," in which, to your petitioner's great surprise and mortification, he found the following words : — " He " will not at this time of the Session presume to take up " more of your Lordship's time about the grammatical " signification of the pityfull monosyllable and adverb " Otherwise.'' I own I am an adverb, and I glory in the title, nor shall anything which a proper substantive noun can say make me ashamed of it. But to be made a monosyllable, and a pityfull monosyllable, I burn with a just indignation at the very thought of it. Little did I expect this return from a gentleman for whom I had done numberless acts of friendship. I put it home to his conscience, whether I have not alwise been a ready assistant to him, upon all occasions, nay, whether he has not constantly made use of my name and credit, when no other monosyllable or polysyllable on earth could serve his purpose. Let him say otherwise if he dares. Sure he will blush at pronouncing my name, though this is not the first time I have been sensible of his ingratitude ; for I am credibly informed that he and his other brethren at the Barr have asserted that a thing was So, when they and your Lordships knew it was Otherwise. The thing is so ludicrous, that I can hardly descend to an argument that I am a polysyllable, having all the marks and apparent symptoms of polysyllability. I am a poly- syllable, descended of polysyllables. The alias's and aliters of ancient Eome were my predecessors, and the autrements, a French family, own the same original. It is true, my mother was a monosyllable of the family of Wise, (a very fast headed race ;) but they, for a proof of their wisdom, have deserted the monosyllables, and by matching into our house, are now naturalized polysyllables, Alwise, Like- 40 COUKT OF SESSION GAELAND. WISK, SiDEWiSE, and many others, are all children of the same lady. Your Lordships are dayly witnesses of the hereditary- antipathy that is between our family and the monosylkbi- cal house of So. The disputes between So and Otherwise, I may say, without vanity, have made some noise in the world, and I dare say, that for the sake of the irreconcil- able hatred we bear to that pityful monosyllable, we shall continue enemys to the whole monosyllabical clan to the last letter of our name. I need say no more, because I have the happiness of the intimate acquaintance of all your Lordships' numbers, in whose mouths I have alwise made a very considerable figure. I must acknowledge the obligations I ly under to your Lordships' justice, in the many contests I have had with that diminutive prig So ; for often and many times after your Lordships have found So, upon application from my friends, you have found Othejbwise ; nay, I am so far convinced of your Lordships' gracious thoughts of me, that I firmly believe, that often when your Lordships say So, you mean Otherwise. I shall not detain your Lordships any longer. I have raised and repeated a Declarator of Monosyllability, and 1 beg it should be found and declared, that I am a Polysyl- lable, and that the Signer of the Answers may be ordained to answer summarily as a Member of the College of Justice, and may publickly recant and declare that I am a true and undoubted Polysyllable, and own, that the Hoens are but pity full Monosyllables themselves. Accokding to justice, Otherwise.* * From the original manuscript, obligingly communicated to the Editor by his much esteemed friend the late Principal Lee. COUKT OF SESSIOK GAKLAND. 41 VII. THE MEERY WIVES OF DOUGLAS ; OE THE DOUGLAS GAKLAND. The Douglas cause was perhaps the most interesting case that ever came before a Judicial tribunal in Scotland, and during its progress it was anxiously watched by the public. The Garland now reprinted from the only copy that has come under the notice of the editor, is said to have been written by a " young gentleman, " * and, as afifording a fair proof of the general feelings of the populace of Scotland in re- gard to this celebrated contest, may not be unsuited for insertion in a volume of the present description. The Second Marquis of Douglas, a man of rank, but not esteemed by his cotemporaries, was twice married ; by his first wife, the Lady Barbara Erskine, eldest daughter of John Earl of Mar, he had one son, James, Earl of Angus, whose birth was soon followed by a separ- ation based on an unfounded charge of infidelity brought against the Countess by the Chamberlain of the Marquis, a man of the name of Lowrie, who had married the heiress of Blackwood. He was a Covenanter and hater of monarchy, and being apprehensive that the influence of the Lady over her husband might interfere with his fanatical and rebellious projects, took this method of parting them for ever. Of the only son, the Earl of Angus, any parent might have been proud ; but notwithstanding his virtues and his dutiful behaviour to the Marquis, he was treated by his parent if not with unkindness, cer- tainly with indifference. Pecuniary assistance was long withheld ; at last, by'the influence of Queensberry, he obtained a pittance to enable hiTn to join the army in the low countries, where he was killed at the Siege of Steinkirk on the 3d of August 1692. This lamentable event deprived the Marquis of an heir of his body, and the certainty that his honours and estates would pass to the Hamilton family, a race he detested, induced him to form a second marriage with Lady Mary Kerr, daughter of the Marquis of Lothian, who brought him one son, Archibald, bom in 1694, and the first and last Duke of Douglas, who received his ducal coronet in 1703, when only nine years ; and Lady Jane, bom at Douglas, March 17th 1698, who became the wife of Sir John Stewart and at an advanced period of life was by him the mother of two sons ; one of these died young, and the other was the ultimately successful litigant against the Duke of Hamilton and his tutors in the suit to which the Garland refers. The Marriage of Lady Jane Douglas gave great ofience to her brother, for Sir John Stewart was unhappily, in modern slang, a "fast" man, * Edinburgh, 1769. Price Twopence. 42 COUBT OF SESSION GARLAND. and although endeavouring to treat his wife with kindness, his impru- dencies rendered his intentions unavailing, and exposed her to con- tinued grievances. At the age of forty-nine, Lady Jane was said to have been brought to bed of twins, christened Archibald and Sholto. This event occurred in France, and the accoucheicr was asserted to have been a man of the name of Louis Pierre Delamarre. We note this, because certain letters from him, to establish the fact of the accouchement, were produced by Sir John Stewart which sub- sequently turned out to be forgeries. Lady Jane died upon the 22d November 1753, and Sir John in June 1764, both asserting the paternity of the children, thus left penniless orphans. Fortunately for them they received assistance from an un- expected quarter. The Duke of Douglas, late in Ufe, married, and the Duchess, having no family by her husband, pitied the orphans and induced their uncle to take them under his protection. The youngest boy, Sholto, having died in early age, Archibald became the heir of line of the Earls of Angus, and Marquises of Douglas, and upon the demise of his uncle, succeeded under his settlements to the estates ; after a contest with the Duke of Hamilton, who set up a claim as collateral heir-male, and the Earl of Selkirk, who founded on a deed executed by James, Marquis of Douglas, in 1699. Archibald had hardly got quit of these processes when a new suit was instituted by the guardians of the then Duke of Hamilton, a minor, to annul his right to the entailed estates upon the allegation that he was a supposititious child imposed upon the late Duke by his sister and her husband. A lengthened and expensive law suit followed, which was decided in Scotland in favour of the pursuers by the cast- ing vote of the Lord President ; but upon an appeal to the House of Lords, the decision was reversed, and the defender was assoilzied. During the dependence of this suit public opinion was almost en- tirely in favour of the defender ; the decision of the Court of Session was received with surprise and indignation. The reversal consequently was the occasion of a general rejoicing in the north. The Chancellor of the day was Lord Camden, an able and upright Judge, who delivered his opinion in favour of the appellant upon what he considered to be strictly legal grounds, without any attempt to influence the Lords by appeals to their feelings ; a course not adopted by Lord Mansfield, who in a speech or rather a pleading against the judgment of the court below made an appearance not calculated to create a favourable impression of his qualifications as an impartial judge, although as a pleading for the appellant, it indub- itably possessed much merit, judging from the notes taken atthe time, short hand writers not then being employed. One mistake his Lord- ship made which greatly injured the effect of his Rhetorical Flourish, he made an injudicious attack upon Andrew Stuart, Esq. of Torrance, who had been the agent for the Hamilton Family from the com- OOUET OF SESSION GAELAND. 43 mencement of the litigation — a gentleman of reputation, who subse- quently addressed a series of letters to his Lordship, which although little known at present, created at the time a great sensation. They were composed in a gentlemanly though severe style, the facts were stated and commented on, and the learned Lord's omissions and inconsistences were pointed out and exposed. Referring to his Lordship's previous opinion in the Anglesea case* in which a forged certificate, or certificate supposed to be forged, had the effect of de- priving the Petitioner of his slatvs of legitimacy, whilst in the Douglas cause the admitted forgery by Sir John Stewart was passed over as a circumstance of Uttle moment, f Lord Mansfield wisely let the storm pass by, knowing well that after a short time, the letters would be forgotten. Of the two Judges, Camden was the lawyer, and Mansfield the Rheto- rician — the former decided according to law ; the latter according to expediency. The Sutherland Peerage case is an illustration of this assertion. Camden gave judgment for the Countess (afterwards Duchess), because all the ancient Scotish territoral earldoms descended to heirs of line in the same way as heritable estates did, whereas Lord Mansfield held that the old law of Scotland always pre- sumed in favour of heirs male unless it could be shown that they had been transmitted through a female, a proposition entirely imaginative. The ancient chartularies, now printed, established, as Lord Hailes pointed out, that in feudal grants, previous to the accession of the Stewarts, the destination is universally to heirs. % * The Anglesea case was a remarkable one, the claimant was in England declared illegitimate by reason of an alleged forged certifi- cate, whilst in Ireland the same document was assumed not to be forged and the' claimant was admitted to the Irish house of Peers as Viscount Valencia. At a later period his Lordship obtained the Earldom of Mountnoris, a title now extinct. t Letters to the Bight Honourable Lord Mansfield from Andrew Stuart, Esq., London, printed in the month of January 1773, 4to. This edition is the first, and was not published. The letters were subsequently published in 8vo. In the opinion of many persons, as compositions, they are superior to Junius. % Camden's celebrated dictum in the case of Hindson and others against Kersey, London, 1771, page 53, should always be kept in memory by all Judges. " The discretion of a Judge is the law of Tyrants ; it is always unknown, it is different in different men ; it is casual and depends upon constitution, temper, and passion. In the best it is often-times caprice ; in the worst, it is every vice, folly, and.passion to which human nature is liable." 1 •ii COUET OF SESSION GARLAND. Lord Mansfield was accused of a desire to prevent the union of the estates of Douglas and Hamilton as politically inexpedient ; for a similar reason it has been conjectured, he was desirous to prevent the increase of Sootish Peerages, by setting up a presumption that never existed. Of the soundness of the decision which permanently separated the Hamil- ton and Douglas Estates, it is unnecessary to say more than that where Lord Chancellor Camden was of the same d^inion with that of seven of the Lords of Session, who held that the Pursuer's case had failed, it would be somewhat presumptuous now to raise any doubt, altho' a perusal of Andrew Stuart's admirable exposure of the fallacies of Lord Mansfield induces a strong temptation for such an attempt. Archibald Stewart or Douglas was created an English Baron, and the title existed until recently. A failure of male descendants has transferred the estates to his heir of line, who, it is thought, has a right to the territorial peerage of Angus, as representing Margaret, widow of Thomas, Earl of Mar, and Countess of Angus in her own right, mother of George afterwards Earl of Angus, who married a daughter of King Robert III. , and to whom the title, upon the resignation of the Countess Margaret his mother, was confirmed. The Garland is only valuable as showing the national interest in the name of Douglas, and the belief that great injustice had been done to the orphans. Mansfield is naturally eulogised. The author's prophecy of a reversal which had actually happened before the Garland was " wrote," reminds one of Cobbet in the Rejected Addresses, who asserts that he had prophecied before the event, though he had never told any- body. Who the author may have been is unknown. It is not suflSciently smart to come from the pen of James Boswell, who was an enthusiastic supporter of Archibald Douglas, and wrote, besides his "Essence of the Douglas Cause " — which had, it is said great merit — a romance on the same subject, entitled ' Dorando,' a Spanish story. London 1767. The reversal was followed in the north by universal rejoicings. Verses of all kinds were composed, most of which were not very creditable to the Scotish muse. Some were set to music. One entitled, " The Con- quering Hero," to the air of the " Grand March in Judas Maccabaeus," by Handel, was sung by a Free Mason, "the Brethren in the Lodge most jovially repeating the chorus," which ran as follows : — " See the conquering Hero comes, Sound the trumpets, beat the drums. Sports prepare and laurels bring Songs of triumph to HIM sing." The subject of all this noise was a worthy and benevolent individual, who deservedly had the dignity of Baron Douglas of Douglas con- ferred upon him. He was for many years Lord-Lieutenant of Forfar- shire, and died at Douglas Castle upon the 26th of December 1827, in the eightieth year of his age. COUBT OF SESSION GARLAND. 45 THE MEERY WIVES OF DOUGLAS ; OR, THE DOUGLAS GARLAND. PART I. (This seems to have been prophetic, as it was wrote before the decision.) With bells and with bone-fires the village around, With claret in flaggons and trumpets to sound. With claret in flaggons and trumpets to sound. Carousing, triumphing, we come to proclaim. That Douglas in battle and law is the same, That Douglas in battle and law is the same. CHORUS. Gome a health to great Douglas, and health to her grace. All blessings below that mortals can know. Or heav'n can confer on our brave Scotish race, Or heaven can confer, &c. Thro' Scotland, thro' England, thro' France, and thro' Spain, They bang'd ay their foes that they ne'er rose again. They bang'd ay their foes, &c. In fight they ne'er lost Scotland's standard so glorious, And now they're come off with their own all victorious. And now they're come off, &c. CHORUS. For listen, good neighbours, I'll tell you a story, The like never heard yet by whig or by tory ; There fell out a change in the year sixty-one, A change all so right should be wonder to none. CHORUS. Without son or daughter, a peer of great fame Gave his lands to another to bear up his name. While his sister, calumniate, excluded, forgot, Was left with two brave Boys to beg for a groat. CHORUS. 46 COURT OF SESSION GARLAND. It makes my heart bleed yet how this gentle lady, Oppressed by foes and by friendships unsteady, Deny'd to her brother, cast forth from his gate. Heart-broken and starving expir'd by sad fate. CHORUS. curs'd love of riches ! Foul source of worst crimes, That e'er soil'd the glory of Scotland's best times ; All virtue effacing, like an infernal flood, Deep dying oppression with innocent blood ! CHORUS. Both parents, long struggling their offspring to save. Were laid with the younger to rest in the grave ; shield heav'n the helpless when strangers of pow'r The orphan's inlwitance wait to devour ! CHORUS. The cry of the orphan, the cause of the just, Prevailed on high, though below in the dust ; And as you know others by Judith of old. So the Douglas was sav'd by a Douglas so bold. CHORUS. Our noble Peer wedded a nymph of great name, For wisdom and spirit far sounded by fame ; The cause of the Douglas she try'd in the hall. And aliens and strangers she banished them all. CHORUS. She sought out his nephew, received him to favour. And fed at his table with princely demeanour ; He wept when his sister's sad story was told. And, dying, bequeathed him his lands and his gold. CHORUS. Thus when oft in the world the good seem to stray, Kind providence guides them, and points out their way. COUKT OF SESSION GAELAND. 47 The rugged grows smooth, and on others retorted, The proud are confounded, the humble comforted. CHORUS. Now mark us, good neighbours ! how it did befal, In Douglas's right in the Parliament hall ; These judges impartial, and jury-men clear, Serv'd him heir to a dukedom, ten thousand a year.* CHORUS. Then think what our strangers and aliens did say. They roared like Uons new robb'd of their prey ; They ship'd off, they spur'd off, they sailed to France, And all to learn how to play Douglas a dance. CHORUS. Then caballing with papists, with monks, and with friars. With tumblers, and strumpets, and blackguards, and liars ; They botch'd up law-hbels, so frothy and rare, That the horn of our judges blew all in the air. CHORUS. To swear down the Douglas they mustered their band, French rascals, and buffoons, the scum of the land ; So thievish, so graceless, you'd swear, to prevail, They unloaded the gibbits, and press'd the rank jail. CHORUS. They embark'd in such schemes, that the father of lies, Who marched as usher all the while in disguise ; Foreseeing such knav'ry his credit might blot, Flew off to pandemon with the best of the plot. CHORUS. And now our good Duchess, appris'd of the snare, Which aliens and papists had laid for the heir ; * This refers to the original suits with the Duke of Hamilton and Earl of Selkirk. 48 COURT OP SESSION GARLAND. Like the Hebrew renouned, all loyal and brave, Went forth as inspired her people to save. CHORUS. O'er virinter seas roaring, and the fierce hostile shore. She rushed with her friend, their fell foes to explore ; She challeng'd, protected by the Sov'reign of France, And cleft Holofernes's head with a lance. CHORUS. How happy for some had they yielded the fight, Nor contended at random in perfect dispite ; But debate drew black legions from the walls of Tournelle, And all Bedlam supported the fine tale we tell. CHORUS. It chanced a French montebank lost son or heiress The same year the DOUGLAS was born in great Paris ; And they will maintain it, (the de'il gave them joy). That our warlike Douglas is harlequin's boy. CHORUS. But how at the bar, they averr'd and defended, Till judges were deafen'd and lawyers' throats rended ; Till clerks knew not what they were jotting and scribbling, And L(ockhart)* himself lost the thread of his quibbling. CHORUS. On the other side Douglas with his myrmidons bold, Knock'd down all their pope's bulls like Milo of old ; But they roar'd such a peal, and disturbed all the house That both senate and people adjourn'd by a truce. CHORUS. * Alexander Lockhart passed advocate 20th January 1722. He was a very eminent and successful barrister. He was elected Deaa of Faculty on the 15th June 1764, an office which he retained until his appointment as successor to Lord Strichen, when he took his seat on the bench as Lord Covington on the 10th March 1775. He died on the 10th November 1782, in the eighty-second year of his age. COURT OF SESSION GARLAND. 49 But then when the day of dread judgment drew near, Their bold hearts did fail them, thro' guilt and thro' fear ; And they hop'd like school truants, by jilting the taws, To ward the fell sentence and lash of the laws. CHORUS. Then M(ansfield) arose, like good Brutus of old. Indignant that judgment and right should be sold ; And fixing, with justice, a day for their doom, Struck iniquity down like the father of Rome. CHORUS. PART II. Fair dawn'd the bright morning some fancied full soon, And impatience, stark naked, knock'd up all the town ; The court gates harsh jarring denounced afar, Like Janus portcullis, the evils of war. CHORUS. Enthroned in state sat our judges so able, The lawyers all round, and the clerks at their table ; The parties all eager came posting to places, With hopeful, with fearful, with red and pale faces. CHORUS. And last came the people all joyful to hear Our good senate decide for ten thousand a year ; Great lords and fine ladies as gallant and gay. As to stare down Glenalvon in Douglas, the play. CHORUS. To a scene all so solemn, grave muses might bring, Minerva and Hermes, and Phoebus their king ;' Paint Justice and Law at the footstool of Jove, While heav'n in loud thunder assents from above. CHORUS. D 50 OOUET OP SESSION GAELAND. But as yet not so high, we with caution declare, How some second-sighted saw dread forms appear ; Fair truth close attended by innocence bright Simplicity artless, conviction all light. CHORUS. Grave Justice with candor still poising her scale, With fortitude, dauntless, and well govern'd zeal ; Then glided aloft o'er the heads of the crowd To the genius of Douglas enthron'd in a cloud. CHORUS. But vile Falsehood mask'd in the heart to disguise. Fell MaUce and Envy with Basilisk's eyes ; Loud slander and clamour, hell-hounds in foul plight, Flew off with mad rage to the regions of night. CHORUS. All was hush ; dreadful prelude ! as when from a cloud VoUied thunder strikes down the airy tow'rs of the proud ; For the event all trembling the people await. But Douglas unshaken confided in fate. CHORUS. In that awful moment the youth second-sighted. Saw, or fancied the Council great Homer endicted ; Fair emblem like this of the CouncU on high, To decide all things right with an impartial eye. CHORUS. The Sovereign enthroned, whose vast scepter controuls, Our earth and high heaven, while his nod shakes the poles ; The divine pow'r of wisdom, his daughter so bright. Who presides over senates, and lends them her light. CHORUS. Apollo and Hermes ordain'd to bear rule, At Virtue's decisions in Cicero's school ; COTJET OF SESSION GARLAND. 51 With Mars and Alcides, protectors of old To Thesus, Achilles and Douglas the bold. CHORUS. These wisely conferring, great Jove call'd to bring Their records eternal ; the Fates on bold wing ; The brazen leaf 'd volume unrolled to the skies, And read the deep gravings with their starry eyes. chorus. Now in that bumish'd page, where great events to trace . Old Destiny points out our brave Scotish Eace ; 'Twas foretold, how a youth, from the Douglas descended, By malice assailed, was by heaven defended, chorus. Should deep wade the floods of Adversity thro' Preserv'd by a noble Dame, valiant and true ; How in public he should o'er the mighty prevail. And with glory be crown'd the Prince of the Dale. chorus. The Fates read the mandate ; the Sire gives the nod. And stamps the decree with the seal of the God ; Then Justice stood forth in rich purple array'd With a bright crown Imperial, and two-edged blade. chorus. Aloft she suspends the golden balance of Jove, To all mortals below, and immortals above ; And poising, presented, as vanity light A bundle of Lies against DOUGLAS'S RIGHT. chorus. 52 COURT OP SESSION GARLAND. VIII. SONGS IN THE JUSTICIARY OPERA. Reprinted from the edition privately printed by tlie late Sir Alexander BosweU, Bart. Auchinleck, 1814, 4to. In the preface to this raj-e volume, it is remarked that the " Songs of the Justiciary Opera were the light pastime of men who made no contemptible figure in grave pursuits. We know not if any of them were ever committed to writ- iag: many are lost and forgotten, and those that are here preserved, are given from memory. " We believe that Lord Dreghom and James BosweU were amongst the principal contributors. The Songs marked with an asterisk, are interpolations by Sir Alexander BosweU. DRAMATIS PERSONS. Caliendkosus Maximus, Grand Clerk of the Scales and Chopping Knife, and Commander of the Forces. Hystrix, Clerk of the Eounds. BOMBYX, a very great OfScer. John Black, the Pannel. Bamboozle, ) r» a t tx. -d ^ ^ ^ ' > Orators tor the Pannel. Flaw-Finder, j Pbppertail, the Horse-Couper, Bizz, the Blacksmith, Peter Brown, the Exciseman, V- Witnesses. Matthew Mutchkin, Widow Mackleebie, Waiter. Judges, Jurymen, Sheriffs, Bailies, Serjeants, Mob, &c., &c. COUET OP SESSION GARLAND. 53 SCENE.— ^n Inn. Caliendeosus Maximus, et Hystkix. Duet. — Air. — Saw ye my father ? Cal. — Saw ye my Trumpeter ? Or saw ye my Macer ? Or saw ye my man John ? Hyst. — I have not seen your Trumpeter ; I have not seen your Macer ; And drunk is your man John ? (Martial Music.) Enter a Waiter. * Air. — Eey Jenny come down to Jock Waiter. — The Bailies 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, Htsteix, Bam- boozle, Flaw-Finder, Macer, Jurymen, Mob, &c. * AiE. — Fye let us a' to the weddin. Hyst. — Ge — en — tlemen o' the Jury, Ye'U answer until a' your names. — Walter Balwhid o' Pitlurie. Jurym. — Here. 54 COURT OF SESSION GARLAND. Hy St.— Matthewf Powloosie o' Karnes. Jurym. — Here. Hyst. — Duncan Macwhey o' Todwiddock. Jurym. — Here. Hyst. — Jacob Bafour o' Howbrig. Jurym. — Here. Hyst. — John Macindo o' Glenpuddock. Jurym. — Here. Hyst. — Hew Gib in Bog o' Daljig. Jurym. — Here. Hyst. — Patrick Macrone o' Craig-gubble. Jurym. — Here. Hyst. — George Yellowlees in Cowshaw. Jurym. — Here. Hyst. — Ealph Mucklehose in Blindrubble. Jurym. — Here. Hyst. — Eobert Macmurdock in Eaw. Jurym. — Here. Hyst. — Andrew Mackissock in Shalloch. Jurym. — Here. Hyst. — Ingram Maclure in Benbole. Jurym. — Here. Hyst. — Gilbert Strathdee in Drummalloch. Jurym. — Here. Hyst. — Gabriel Tarn in Dirthole. Jwrym. — Here. Hyst. — Lowrie Macwill o' Powmuddle. Jwrym. — Here. Hyst. — Daniel Losh o' Benskair. Jwrym. — Here. Hyst. — John Stoupie, writer, Kirkfuddle. Jurym. — Here. Hyst. — Bailie Bole, shoemaker there. Jurym. — Here. Hyst. — Samuel Macguire in Craig-gullion. If present, Sir, answer your name. *" ' COUKT OF SESSION GAELAND. 55 Jurym. — Here. Hyst. — Qiiintin Maccosh in KnockduUion. Jurym. — Here. Hyst. — Gal-lery — si-lence — Ahem ! AiE. — In the Garb of Old Oaul. Macer. — Hem ! — Si-lence. Gal. — Officer, bring John Black to the bar. (The Pannel is brought in guarded,* and Petitions for Banishment.) AiE. — The Lee Rig. Pannel. — O send me cure the lang seas, My ain kind lordie, ; send me cure the lang seas, My ain kind lordie 0. O 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. * Alas ! I cannot insert this word, without feelings of the most painful 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 sitting 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 waa the cocked hat of the gray-haired veteran ! How imposing his queue ! How awful his Lochaber-axe ! But this is the age 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. 56 COUET OF SESSION OAKLAND. * Air. — Lass gin ye lo'e me tell me now. 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 foUy, if lavish'd on him ; Robbing and thieving, the gaUows shall check : Our duty is plain, we'U 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 guUty yet. 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. -Whereas by the laws o' this realm. And o' every 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' COURT OF SESSION GARLAND. 57 And sae, gang till an assize, Sir, And underlie pains o' the law. * Air. — Miss Madeod's Reel. BOMBYX. Painful the duty is, which I must now perform, Stating a train of guUt uncommon and enorm — Ous, — calling my witnesses to make the fact out plain. And if your verdict's guilty, my lahour's not in vain. Gentlemen, 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 ; 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 Petek Brown. * AlE. — The bmniest lass in a' the warld. 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 ; 58 COURT OP SESSION GARLAND. Quo' I, my thum I winna fash, It's no sidike can fell me. Four cadgers rade through Halk-wood-stack, I douted 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 Peppertail. AiE. — Br aw lads o' Galla Water. Pepper. — Comin' fra the toun o' Straiven, On my poor mare that had the spavin, 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 gauger han'le, The mair he shuck the fallow by the throat, The steadier still I e'ed the pannel. Enter Mathew Mutchkin. * Air. — Calder 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. COUET OF SESSION GARLAND. 59 I ken na mair nor Abram's mither, I was blin' wi' whisky. Enter Bizz. * AiE. — fFill ye gang and marry Katyf Bombyx. — Pray, What is your name, friend? tell us. Bizz. — Tammas Bizz. — I've blawn the bellows, And I've clinkit on the studdy Sin' a wean, knee-heigh and duddy. And the gauger, weel I ken, Aft he stammers butt and ben, SnowMn a' frae end to end, He's mislear'd and capemoited. And I ken Jock Black fou weel, A sturdy hand at our fore-hammer ; Bess, his wife, flytes at the chiel. But weel a wat I do condemn her. Wark, ye ken yersels, 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 sheam, Troth I ken nought ill about him. 60 COUET OF SESSION GtAELAKD. Enter Widow Macleerie. * Air. — / hae a wife o' my ain. Widow 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 ganger, himsel', Whiles comes pipple papple in. Fusion, frae ony big stell, He'll 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. 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 Pamiel plead.) Air. — Deil tak the wars. Bamboozle. Fye on the laws that hang a man for steaUng, Sure such penal statutes were savagely fram'd By legislators devoid of human feeling, 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 his fate depends : COURT OF SESSION OAKLAND. 61 'Tis yours to take or give, To bid him die — or live ! Then here that mercy show, you hope from heaven. Air.- Flaw-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, like the Lords, in a fury. But bring this man off, like a sensible jury. {Charge to the Jury.) * Air. — Merrily Dame the Qimker. Cal.—li ever a case before me came. That I could judge most clearly, This is a case, I'll boldly name, I've scrutiniz'd it nearly. To trace the truth through all its track, No. witch requires, or jugglers ; The vntnesses 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 ; 62 COURT OP SESSION OAKLAND. And that he robb'd, tho' not quite clear, Presumptio est fortisskna. 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 becoming ; I need not say one other thing. And so I end my summing. (Jury are enclosed.) LowRiE Macwill o' Powmuddle, Chancellor. John Stoupie, Clerh. * AiK. — Ally Croaker. Powmuddle. — In this case there's nae argument, Nae minor and nae major ; A chield had taen a glass, and had A towzle wi' a gauger. That there's nae proof o' robbery. To see I think ye canna miss ; Sae we the pannel man acquit, — No guilty. Sirs, — ^Unanimous. Demi Omus 6y I Unanimous, Unanimous, - Five Jurymen, j ' Dmble Chorus by ) Unanimous, Unanimous, Ten Jurymen, j ' ' Grand Chorus by ) Sae we the pannel maun acquit. the whole fifteen, j No guilty. Sirs, — Unanimous. (The verdict is returned, Caliendrosus Maximus reads — in a passion.) COURT OF SESSION GARLAND. 65 Air. — Up cmd down Frisky, and fire away Pat. 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 ; But now they're acquitted, O how we're out-witted, We've sat eighteen hours here for nothing at all. (Chorus by 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 acquitted, &c. (Mob without Huzza.) IX. THE JUSTICIAEY GAELAND. This is said to be the joint composition of Robert OuUeu, Esq. after- wards Lord Cullen, CoUn Maclaurin, Esq. afterwards Lord Dregbom, James Sinclair, Esq. afterwards a Principal Clerk of Session, and James Boswell, Esq. the Biographer of Johnson. 1. — Packing the Jury.* Pirst pray rise up Black of Greenmountain, We ken you are not yet a Peer ; * It is, perhaps, hardly necessary to observe, that until Mr Ken- nedy's act, by which the jurymen were baUotted for, they were Cyi COURT OF SESSION GARLAND. Since last you condemn'd the sheep-stealer, We're ay 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. — Pleading on the 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 libel 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 civil, 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. The Judge examining a Witness. Come up to the table, and look in my face, Remember you are upon your oath, Sir ; 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 nomination, that those individuals were uniformly sworn in who had previously been upon juries that had returned ver- dicts for the Crown; — Whence, in reference to this popular belief, the authors make the Judge compliment Black of Greenmountain 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. COURT OF SESSION GAELAND. 65 If you alter one iota, time, person, or place, I'll whip and imprison you both. Sir. Chorus by the whole Court, — Tall de rail, &c. 4. — The Pannel'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 Jury. Gentlemen, 'tis my turn to address you, And with much speaking I'U not oppress you ; The proof lies before you, in writing down taken, Therefore, I hope, you will 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 Ba/nishment 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, ; For gang this trial as it will, my ain kind Lordies, O, In Scotland I can fare but iU, 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. E 66 COUET OF SESSION GAELAND. The French of India, east and west, Were by 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 the 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 aff this ae time, I'll never steal again. Sir. A fencible I'U guard at home, Or on the seas a sailor roam. Even common soldier I'U become. Or what else you incline. Sir. O let me aff this ae time, &c. f * In the year 1778. t 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 COURT OP SESSION GARLAND. 67 X. THE COUET OF SESSION GAELAKD. This 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, ajid used to sing it frequently in the slow drawling naif style which added so much to its value in the estimation of a last century hearer. " * There appeared in the year 1857, " Letters of James Boswell, ad- of some of the parties concerned in the authorship; it has the appearance of being incomplete, from being deficient in the verdict and sentence. It is very probable that the presiding judge is meant for Lord Kames, who was very fond, it is said, of procuring con- victions. His Lordship at times did say odd tl^gs on the bench, as the following anecdote sufficiently indicates. Being on the cir- cuit 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 Cohn Gillies?" — " Yes, my Lord, I know him very well." — " Then teU him I shall " breakfast with him on Tuesday morning." Mr. Gillies was an elder brother of Dr. Thomas Gillies of Balmake- wan, the father of E. P. Gillies, Esq., advocate, 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 Frazer's Magazine. His elder brother was John GUlies, LL.D., the historian of Greece, and Royal Historiographer for Scotland. His youngest brother was the late Adam Gillies, Lord GiUies, long a distinguished ornament of the Sootish 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 his cheerful glass, recur to olden times, and gratify his auditors with many curious reminiscences and anecdotes of the past. * Traditions of Edinburgh, vol. XL, p. 158. 68 COUET OF SESSION GARLAND. dressed to "the Reverend W. S. Temple, now first published from "the original MSS. With an Introduction and Notes. London, " Richard Bentley, New Burlington Street, 8vo." No Editor's name is given, and the information as to the manuscripts is meagre and unsatisfactory. The reader is informed that they were "a few years ago picked up by a clergyman'" at Boulogne, in the shop of a " Madame Noel " who had bought them " recently" from a "Hawker," who, once or twice in the course of a year, passed through that town, for the purpose of supplying the shops with paper. The public is not informed what trade " Madame Noel " followed, or in what part of Boulogne she resided. The name of the clergyman is concealed — why — if the story be true — it is difficult to conjecture. " Recently " is evasive and goes for nothing. A century has elapsed since the letters were written, if genuine, and the veiled editor was bound to furnish some information when the clergyman obtained them, and how long he survived after their acquisition. No attempts were apparently made to ascertain how the " Hawker " got hold of them. If the clergyman was unwilling, during his life, to give the fact of his acquisition to the world, his nephew and heir could have no delicacy on the subject. Nevertheless, both uncle and nephew are unnamed. In short, the explanation as to the manner of acqui- sition is so very questionable, that unless something more precise be given, the authenticity of the letters cannot be recognized. About the time of the publication of the volume, which was duly pro- claimed more solito in the periodicals and journals, there was an advertisement that the docmnents could be seen in the shop of the Publisher. As few persons now could recognise BoaweU's autograph, anything might have been exhibited and accepted by the general public. It so happened that a descendant of the alleged writer did call, but was informed that the MSS. had been returned to the owner, whose name was not disclosed. Now a declaration by a member of the Boswell family, that the writings were the veritable Epistles of the Biographer of Johnson, would have satisfied every one, and yet of this conclusive evidence the oimier did not choose to avail himself. Our neighbours the French, manage these imaginary letters much better than we do. court of session garland. 69 Part First. Tune. — Logan Water. 1 The Bill charged on was payable at sight And decree was craved by Alexander Wight; * But, because it bore a penalty in case of failzie It therefore was null contended Willie Baillie.t 2 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 stey brae Took into the cause Mr David Eae : % Lord Auchinleck§ however repelled our defence, And over and above decerned for expence. 4 However, of our cause not being asham'd, Unto the whole Lords we straightway reclaim'd ; * Wight. — Alexander Wight, Esquire, an eminent barrister of the period, and author of a learned treatise on the election law. A work which, although ahnost professionally useless since the passing of the Reform Bill, is still valuable for its historical information, and amusing from its detail of poUtical squabbles. t Baillie. — William BaiUie, afterwards Lord Polkemmet, sub- sequently mentioned. % Rae. — David, Lord Eskgrove, and Lord Justice-Clerk. He was made a Baronet a short time before he died. He was the son of a non-juring clergyman, and father of the Right Honourable Sir WiUiam Rae, Bart., M.P. for the county of Bute, and many years Lord Advocate of Scotland. § Auchinleck. — Boswell's father, a Judge of the Coiirt of Session. 70 COURT OP SESSION GAELAND. And our petition was appointed to be seen, Because it was drawn by Kobie M'Queen.* 5 The answer by Lockhartt 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. 6 Alemoorf the judgment as illegal blames, 'Tis equity, you bitch, replies my Lord Karnes ; § * M'Queen. — ^Better known afterwards as Lord Braxfield. t Lockhart. — ^Alexander Lockhart, Lord Covington, a very dis- tinguished lawyer. J Alemoor. — ^Andrew Pringle, called to the bench in 1769, — died 1796. § Eames. — Lord Karnes'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 ! it's a woman, my Lord, accused of child miffder, — " and a weel farred b ^h too," muttered his Lordship, loud enough to be heard by those present. Karnes had a great taste for convic- tions, and it was alleged, used every effort to procure them. Once he had the satisfaction of convicting and sentencing two unfortunate 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 modem 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 him and asked, "pray my good man, what would be the toU for a carriage and six ? " The Professor told him. Next he enquired what the toU for a carriage and four ? Next what was the toU for a horse ? All which queries were politely and sep^ately answered. " Now Sir, pray what may be the toll for COtTBT OF SESSION GARLAND, 71 This cause, cries Hailes,* to judge I can't pretend, For Justice, I see, wants an e at the end. Lord Coalstont expressed his doubts and his fear. And StrichenJ then in his weel weels and O dears; This cause much resembles that of M'Harg, And should go the same way says Lordy Barjarg.§ an ass ? " "If your Lordship will take the trouble of passing thro' the toll, the keeper mil inform yoa." Saying so, the Professor made a low bow and walked away, leaving the learned Lord far from com- fortable. As, however, Karnes relished a good thing, he took occa- sion 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, 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 Aberdeen. His Lordship immediately expressed a wish to be introduced, and subse- quently he and the Professor became very intimate. * Hailes. — Sir David Dalrymple, Bart., one of the most upright and accomplished Judges that ever sat on the Scotish Bench. The Aimals of Scotland for the first time placed the early history of his native country on something like a solid foundation. He was re- markably critical and very severe on any omission or verbal inac- curacies in the papers before him. t Coalston. — George Brown of Coalston, in the county of Hadding- ton, appointed a Judge 1756, — died 1776. The late Marquiss of Dalhousie, by the demise of his mother, succeeded to the estate of Coalston, which she inherited from her father the Judge. X Strichen. — Alexander Fraser 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, Alexander, 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. Upon the reversal of the attainder of Simon Lord Lovat, his Lordship succeeded to the Scotish Barony. Lord Strichen died 15th 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 m 1796. 72 COURT OF SESSION GARLAND. 8 Let me tell you my Lords this cause is no joke ; Says with a horse laugh my Lord EUiock,* To have read all the papers I pretend not to brag, Says my Lord Gardenstone t with a snuff and a wag. 9 Up rose the President J and an angry man was he, To alter this judgment 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 12th of June. Part Second. 1 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. In order to bring aid from usage bygone, The answers were drawn by quondam Mess John ;|| * 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 talent. t Gardenstone. — Francis Garden became a Judge in 1764. He died in 1793. He was a clever but eccentric person, not over- burdened with judicial wisdom. X Dundas. — Robert Dundas, Esq., Lord President. § Dundas. — Henry, first Viscount Melville, his son — Whence the fee. 11 Mess John. — John Erskine of Garnoch, author of the Institute of the Law of Scotland. COURT OF SESSION GARLAND. 73 He united with such art our law with the civil, That the counsel, on both sides, would have seen him to the devil. 3 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 Stonefield,f unwilling his judgment to podder, Or to be precipitate agreed with his brother ; But Monboddo f was clear the bill to enforce. Because, he observed, 'twas the price of a horse. S Says Pitfour§ with a wink and his hat all agee, I remember a case in the year twenty-three. The magistrates of Banff contra Eobert Carr, I remember well, I was then at the bar. 6 Likewise my Lords in the case of Peter Caw, Superflua non nocent was found to be law : Lord Kennet|l also quoted the case of one Lithgow Where a penalty in a bill was held pv non scripto. * 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. t Stonefield. — ^John Campbell, who became a Judge of the Court of Session, and took that title. X 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. II Kennet. — ^Robert Bruce of Kennet, appointed a Judge 1764, — died 1785. 74 COURT OP SESSION GARLAND. 7 Lord President brought his chair to the plum, Laid hold of the bench and brought forward his bum : In these answers, my Lords, some freedoms have been used Which I could point out, provided I chus'd. 8 I was for this interlocutor, my Lords I admit, But am open to conviction as long's I here do sit ; To oppose your precedents I quote you some clauses. But Tait*'a priori hurried up the causes. 9 He prov'd it as clear as the sun in the sky That the maxims of law could not here apply. That the writing in question was neither bill nor band. But something unknown in the law of the land. 10 The question adhere or alter, being put, It carried to alter by a casting vote : Baillie then moVd. — In the bill there's a raze, But by this time their Lordships had called a new case. XI. THE FACULTY GAELAND. From 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 — The old woman of Grimstone. Ye orators all, Attend to my call, Lest ye suffer a Jewish dispersion ; * Tait. — Alexander Tait, Clerk of Session. t Mr. John Pattison, son of the Eev. Mr. John Pattison, Minister of the Gospel in Edinburgh, was admitted Advocate 27th January 1787. COUET OF SESSION GAELAND. 75 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 ; Writers' prentices here Should never appear. Nor people who wear dirty linen. H[enr]y E[rskin]e,t I'm told. Thought the candidate old, If twenty and five they were past ; Tho' orator Toni,J Should a midshipman roam. And not be a lawyer at last. * Afterwards Lord Newton. He had, previously to passing Advocate, served an apprenticeship. t Dean of Faculty ut one time, and Lord Advocate during the Whig Administration. t His brother, afterwards Lord Chancellor. 76 COUET OF SESSION GARLAND. 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,t 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,J We'll degenerate soon. If we do not watch over the forum ; Eeformers and thieves Will soon be sherives, And buy up the causes before 'em. * Robert Dundas, Esq. Solicitor-General, then Lord Advocate, and finally Lord Chief Baron of Exchequer, which office he held till his death. He was a very amiable man. t William Charles Little, Esq. who was alleged not to have been very select in his society, and not over scrupulous as a Justice of the Peace. I Sir James Colquhoun, Bart, of Luss, Principal Clerk of Session, and Sheriff of Dumbartonshire. He was one of the odd characters of the time, and was much teazed by the wags of the Parhament House. On one occasion whilst Henry Erskine was at the Inner- House Bar during the advising of some important case, he amused himself by making faces at Sir James, who was sitting at the clerk's table, beneath the Judges, — his victim was much annoyed at the strange conduct of the tormenting lawyer, and unable to bear it, disturbed the gravity of the Court, by rising and exclaiming, " My " Lord, My Lord, I wish you would speak to Harry, he's aye mak- " ing faces at me," — Harry, however, looked as grave as a judge. Peace ensued, and the advising went on, when Sir James casting his eyes towards the bar, witnessed a new grimace from his tormentor, and convulsed Bench, Bar, and Audience by roaring out " there COUET OF SESSION OAKLAND. 77 Says old M'[Intos]h,* If we bring in such trash, Without either kin, or connections : Country Procu'tors next, Will be Advocates fixt, And then play the rogue at elections. The chief thing, says C[orbe]t,-f Oh ! I cannot absorb it, — Illiterate fellows to ask in : I'm afraid we shall see People take our degree, With no other knowledge than Erskine. With additional scouring In his mouth, J[oh]n M'[Lauri]n, f 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 Hkes every sham Ul, No quibblers I'll have, he did say ; " there, my Lord, see he's at it again." Sir James, notwithstanding his simplicity in ordinaay matters, had much worldly wisdom, for no one knew better how to take care of his money than he did. * Robert Macintosh, Esq., an eminent lawyer; he had been a writer in the country, and was much employed in election cases. t Robert Corbet, Esq., afterwards Solicitor for Teinds ; his father was Provost of Dumfries. He was a good lawyer, and for many years a most popular pleader in the General Assembly. J Afterwards Lord Dreghom. § This alludes to a poem entitled the Keekiad, written upon a domestic incident that occurred in the family of Mr. Johie, a respect- able Edinburgh tailor, whose son, James JoUie, Esq., became a well known and highly respected member of the Society of Writers to the Signet. II Afterwards Lord President. He was created a Baronet upon leaving the Bench. 78 COURT OP SESSION GABLAND. For they never will stick, By cheat, lie, or trick, To wrest the just cause the wrong way. Says bluff E[ober]t B]lai[r, * With a fierce haughty stare. All the pride of the church in his eyes, — Let us keep away aU The Divinity Hall, And those who rehgion despise. Young small Trash the third,+ Now put in a word. To shew them John Bruce's J fine logic ; 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 denion Hugo, ^ Since to make new laws you go, Out, out of the Faculty close 'em ; * Son of the Author of the Grave, and Lord President of the Court of Session. + Charles Hope, Esq., late Lord President of the Court of Session. t This gentleman obtained the office of King's Printer, besides the easy appointment of Keeper of the State Paper Office. He died some years since, leaving an immense fortune, which was inherited by the late Mrs. TindaU Bruce. § Mr Bruce had great merit in his pupil, for there was not a Judge in the Court of Session who delivered an opinion more logically, or with more dignity, than the venerable iudividual referred to. I Lord Advocate, better known as the first Viscount MelvUle. If Hugo Amot, Esq. of Balcormo, author of the History of Edin- burgh, and the Essay on Nothing. COUKT OF SESSION GARLAND. 79 Whose malicious heart, In dark corner apart, Can dictate a carmen famoswn. Says rumbling S[inclai]r, * With a voice like 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,t the sour, By a fiat of power, Has clagged up the fools' empty mouths ; To mutter none dare on't, For an Act of Sederunt Must settle the point for the Youths. XII. DIRECTIONS TO WRITERS' APPRENTICES. To the Editor of Edinburgh Magazine, 1788. SIE, It has been wittily said, that it is not more true that every man is born in sin, than that he is born in criticism; and indeed, whoever attentively considers the manners and spirit of the present age, wiU discover a variety of illustrations in support of the truth of this aphorism. Hence the reformation in the internal government of the royal boroughs and the incomparahle blacking for the shoes ; the performances of Mrs Siddons, as well as the very facetious and high-flavoured jokes of Mr Hmnphreys the •equestrian clown, have all of them been handled with a * Robert Sinclair, Esq., afterwards a principal Clerk of Session. He died 9th September 1802. t Robert Dundas, Lord President. 80 COUET OF SESSION GARLAND. becoming gravity, and the respective merits of each fairly and critically discussed by certain ingenious gentlemen, to whose recondite labours the public are unspeabakly indebted. In compliance with the advice given by Sallust, in his exordium to the history of Catiline's conspiracy, I am desirous of not passing my life in silence, and therefore I have, for some time past, turned my attention to the com- position of a treatise which I call Directions to certain members of the College of Justice, and which I fondly flatter myself will hand down my name to posterity, along with those Quique sui memores alios fecere merendo. Of this stupendous work I now present you with a specimen. I have, you will observe, begun with the seedlings in this great forest, and mean to proceed progressively upwards, till I comprehend the timber trees. This plan I have adopted as the most simple, and at the same time the most methodical ; for you will perceive, that it embraces "the general camp, pioneers and all," ab ovo losque ad mala. Without further preface there- fore, I submit to your readers my Chapter first, containing DiEECTIONS TO WkITEES' APPEENTICES. QucBque ipse misserima vidi Et quorum pars magna fui. When your master gives you a paper to copy, if you should observe, in going through it, any repetitions or tautologies, of which your business will furnish you with many examples, you need not, if you are in a hurry to go out to any of your cronies, be at the trouble of copying all these, for such redundancies of expression are of no sort of use,, except in increasing the expence to your master's clients, and they will thank you for omitting them. When your master has drawn a paper, (if he is able to COTJET OF SESSION GARLAND. 81 draw one,* and given it to you to make a fair copy of, correct such passages as you think wrong, and expunge such old fashioned phrases as he may have made use of, and which you dislike. This will shew your master that you are a clever fellow, and besides two heads are better ' than one. Indeed it is fifty to one, that your master is a very stupid animal, and of course he must be much * In olden times, unlike these more stirring days when intellect is so discursive, some stray agents might be found who were not pe- culiarly distinguished for their attainments, and who sometimes could not, as here anticipated, "draw" a paper. One of these, a worthy, commonly yclept black John Frazer, who had a capital business, and who left a good fortune behind him — ^in which last particular he did not resemble many of his successors — was impressed with the idea that his powers were eq^ual to the preparation of a petition for the appointment of a factor. His clerk was summoned, pens, ink, and paper, placed before him, and the process of "dictation" com- menced. — "Unto the Right Honourable," "Right Honourable" echoed the clerk, — "the Lords of Council and Session," "Session," continued the scribe, "the petition of Alexander Macdonald, tenant " in Sky," " Sky," " humbly sheweth," " sheweth."— Stop John, read what you've said. " Yes sir, — Unto the Right Honourable the " Lords of Council and Session, the petition of Alexander Macdonald, " tenant in Sky, humbly sheweth." Very well, John, very well. Where did you stop ? " Humbly sheweth," " that the petitioner," " petitioner," — ^here a pause for a minute, " That the petitioner." " Its down, sir." Here the master got up — walked about the room, — scratched his head, — took snuif, — ^but in vain, — the inspiration had iied with the mysterious word " petitioner." The clerk looked up, somewhat amazed that his master had even got that length ; and at last ventured to suggest that perhaps the diflBculty might be got over, — " how John," exclaimed his master eagerly? " As you have done " the most important part, what would you say Sir, to send the paper, " to be finished by Mr. Macgrugar, with a guinea ? " " The very thing " John, — tak the paper to Macgrugar, and as we have done the maist " fickle part of the work, he's deevilish weel off wi' a guinea.'' This is the same gentleman who " felt a commotion" whilst witness- ing the performance of Mrs. Siddons in the character of Isabella, a delineation which, after some hesitation, when the curtain dropped, he was inclined to think was a tragic not a comic one. F 82 OOUET OF SESSION GARLAND. obliged to you for polishing his works, and making them common grammar, or common sense. If your master sends you with a card to any person of which you are desired to bring the answer, by no means go with it yourself, but send either a porter* or your master's servant; and surely it is much more for your honour as well as that of your master, though he should be obliged to keep a couple of servants, than that you should be employed like a Gadie. But if in any case you must go with a card, leave it at the house, and come off that instant, without waiting for the answer. If your master desires you to carry papers in a bag to a * This advice has sometimes been adopted ; at least one instance might be cited where it was followed. A gentleman, afterwards well known in the profession, who subsequently settled in London, and became an M.P., had been bound apprentice to a respectable writer to the signet of the old school, who was no great admirer of modern puppyism. The youth was deemed, or rather deemed him- self, a very fine sort of person, and the idea of carrying papers was revolting to his feelings. One evening the master rang the bell, and the apprentice was desired to take a very small parcel of papers to a professional gentleman, whose residence was not far distant. The packet was received in silence, — not a word was said. A minute had hardly elapsed when the master saw a porter run hastily across the street, apparently to the office. This induced some suspicion of his errand, — which was verified by shortly seeing the young man issue forth from the office. followed by the porter. Seizing his hat the master foHowed, and overtaking the latter, relieved him of his burden. He then followed in the rear of his apprentice, who, of course, thought it beneath his dignity to look round. At last the place of destination was reached, — the door bell was rang with violence, " Here fellow," quoth the youth, " give me the parcel," slipping sixpence into his hand, but without condescending to look at him. " Here it is for you," exclaimed the supposed porter. The voice struck the young gentleman, and his astonishment and confu- sion may be imagined when he beheld his master. In place of scolding him, the old gentleman contented himself with using the very powerful weapon of ridicule, and with such effect, as the apprentice afterwards candidly avowed, that in future he resolved not to be above his business. COURT OF SESSION GARLAND. 83 Judge's house, absolutely refuse it. This will show your master that you are a young gentleman of spirit, and that you are not to be affronted. Let old Hocus trudge away with his bags himself. As to your carrying your master's great coat when he happens to be out at night, and which I remember to have been the custom, it is needless to say anything, as this abominable practice is now universally exploded. Contrive to get acquainted with young gentlemen of taste about town, who by frequenting biUiard-tables, cock- matches, stables, and other places of polite amusement, have acquired a knowledge of the world and of life.* This will hinder your parts from rusting, which is very likely to happen if you sit constantly slaving in your master's office. If you can scrape an acquaintance with any booksellers clerk, it may not be amiss that you spend two or three hours a day in the shop. Every writer's apprentice is, de jure, a member of the republic of letters, (I do not mean Signet letters) and such places enjoy a prescriptive right of engrossing a considerable portion of your time. Gay, speaking of the shop of one of these midwives of the muses, has observed long ago that, " Here sauntering 'prentices o'er Otway weep, " O'er Congreve smile, or over Erskine sleep." Never be a whole day together at your desk, but go out now and then and take a walk for your amusement, to a tennis court, or a game or two at billiards. This will be an agreeable, rational, and indeed a necessary relaxation from the dull plodding in your master's office. If your parents can afford it, or whether they can afford * This recommendatiou has met with due attention in modem days, and has led to a great improvement both in the mind and morals of the rising generation of youthful writers. 8-i COUKT OF SESSION GARLAND. it or not, by all means dress yourself like a cornet of dragoons. Have your hair done at least once a^-day in the most fashionable and approved manner, and let no con- sideration whatever prevent you from being completely dressed before you come to your master's office about mid-day. Your master is as able to work as you are, and if he chooses to be at his desk by six in the morning, why not ? but it would be very improper in you to disturb his family at so early an hour. Take care to let your master be obliged to send all over the town in quest of you two or three times a-week, and sometimes as often in a day, to attend what he calls your duty in the office. This will show your acquaintances that your master is an honest fellow, and that you and he are more upon the footing of companions, than that of master and apprentice. When your master challenges you for any little neglect, such as forgetting to put his letters into the post-office for two or three nights, or the like, you may look as surly at him as you please, but I advise you, for your own sake, not to make any reply, at least while the hot fit is on him ; for if your master should happen to be a choleric hasty fellow you have a chance of getting your head broke. I remember once, to have myself got a most inhuman drubbing for saying, as I thought, a smart thing to my master upon such an occasion. Endeavour to conceal as much as possible, your being bound apprentice to a writer ; for, to say the truth, all business is below a gentleman of any spirit ; and when the world sees you strollipg about the country, with a fowling-piece on your shoulder and a pointer at your heels, they will never suspect that you mean to work for your bread ; they will naturally conclude, either that you are a gentleman of considerable landed property, or that you have gained a capital prize in the last state lottery, or that somebody has left you something somewhere ; and in COURT OF SESSION GARLAND. 85 either of these cases, depend upon it, you will be treated by strangers with much respect. The profession of an attorney too, you will recollect, is far from being popular, and this is an additional motive for your concealing with some adroitness, your connection with it. Pope, you know, has said, " Boastful and rough, your first son is a 'squire, " The next a tradesman, meek, and much a liar. " Tom struts a soldier, open, bold, and brave ; " Will sneaks a scrivener, an exceeding knave." If you get a paper from your master which he wants copied in a hurry, lay it down deliberately on your desk, and after taking a pinch of snuff, take up a law book, if there should be one in the office," and read, or pretend to read, half a dozen pages : for the improvement of your mind is surely an object of much greater importance than the copying, it may be, of some very foolish paper. Should you be sent in the morning with papers to the Parliament-house, which are in a very great hurry, and should your master anxiously desire you to run the whole way that you may not be too late, walk with the utmost solemnity, and as slow as if you were going tO' be hanged. For why should you run the risk of catching a fever, by overheating yourself merely to oblige your master 1 besides, this behaviour of yours will teach him in future to be more orderly and timeous with his papers in a morning, and order is absolutely requisite in carrying on business. Always walk with a cane, or some fashionable switch, or a short bludgeon, (as the vogue may be) although you should be sent a message to the next door. Every person who wears a cane, switch, or bludgeon, is eo ipso, a gentle- man. If you can any how contrive to procure a pair of boots, your fortune is made ; for wearing boots, when you have 86 COURT OF SESSION GARLAND. not the most distant intention of riding, nor perhaps as much money in your repositories as would hire a hack for a day, is another infallible mark of a gentleman. See that the tops of your hoots, however, are pushed down to your ankles, otherwise people might suspect that your master was about to send you into the country wpon business; an aspersion against which you cannot, on your entry into life, be too careful of guarding against. Copying your master's letters is a most intolerable slavery, especially if he has taken a crotchet into his wise head, of writing to his clients a dull history of his proceed- ings in every dull law-suit. Make short work with them. Leave out whole sentences, and by contractions, et ceteras, and expunging absurd passages, you may condense a letter of three pages into about as many lines. Nothing is more beautiful and elegant than a short concise style, especially in letters ; and from the days of the elder Pliny, down to those of Mr. Gamaliel Pickle inclusive, eveiy man of taste and genius has cultivated this study with diligence and attention. In the first volume of Peregrine Pickle, a book never to be sufficiently commended, (and' which buy), you will find a very beautiful illustration of what I am now recommending to you. I mean the letter from Mr. Gamaliel Pickle to his mistress, and which I take to be a perfect model •oi the epistolary style, although I confess, that it has not been noticed either by Mr. Harris, Lord Kames, or Doctor Blair ; a proof, that even the most laborious and elegant writers on composition and the Belles Lettres, will sometimes overlook a very striking exemplification. So true it is, that " Aliquando bonus dormitat Homerus." Make it a point with your master, that he must give you the whole of both vacations, and also Christmas holi- days, that you may enjoy the sporting seasons, as well as COURT or SESSION GAELAND. 87 the days of festivity. What gentleman would sit from morning to night, and from morning to night again, poring over bundles of musty papers ? Send out your master's servant upon as many of your messages as you can, and in the more ignoble parts of your business, such as buying pens, paper, and ink, and carrying letters to the post-otfice, and which no gentleman would be seen in. This will teach the lad to be smart, and who knows but that one day he may become a writer him- self, and be as good a man as your master, of which I could name some very notable instances already, now flourishing in this great city. Should your master have occasion for the servant when you have ordered him out, he will only be very angry, when he finds that you have been the occasion of it ; but your master's being in a passion is surely of no consequence to you, and it will do him good, by making his blood circulate, for a brisk circulation is now and then of much benefit to a sedentary person. This is the reason that you see all lawyers fond of walking. If you happen unfortunately to be only your father's third or fourth son, and perhaps a very slender income to maintain you all, take care that your eldest brother does not outdo you in spirit. The proverb says, " The younger " brother, the better gentleman," and do not shame the pro- verb, but run into every expence, foolery, and affectation you can. This was so perfectly understood among the Eomans that when the extravagance of a younger brother exceeded that of the elder, they used to call it his Gestio 'pro herede, as you will see in the law books, when you come to divert yourself with the civil law. During the whole period of your apprenticeship, go out regularly to drink tea every afternoon, without missing it so much as once, and stay about two hours, till your master has raised the hue and cry after you, which is perhaps better. This will show your master that you have not been bred up like a country booby, without getting tea in 88 COURT OF SESSION OAKLAND. the afternoon. Besides, tea is of a refreshing, sedative, and aromatic quality, and the chit-chat of the ladies extremely alluring, after your drudging, perhaps for near half an hour, in your master's of&ce. Whatever hints your master may have given you from time to time, about this same tea-drinking business, take no notice of them. The only danger to be apprehended indeed, is his getting into a horrible unchristian passion some night, and perhaps, with divers profane oaths, absolutely prohibiting tea in all time to come, under severe and exemplary penalties. In such a case, it is difficult how to advise you, but I think your best plan would be, immediately upon this, to throw up your master's service altogether, and to ship yourself off directly for the East Indies, where tea is in great abund- ance, both Bohea and Green, and where you must very soon make a fortune. The expense of the passage is indeed considerable, and consequently may be inconvenient, but I have known some of our brethren very ingeniously surmount this obstacle, by getting themselves entered as convicts, and by which means yo.u pay not a farthing ; on the contrary, every thing necessary, either for your back or belly, is most plentifully administered and supplied. If, however, you have taken any private disgust at the pro- ceedings of Messrs Hyder Ally and Tippo Saib, or perhaps conceived some foolish prejudice at the Black Hole of Calcutta, you may easily, by passing your trials, qualify yourself for a berth in the steerage in the next Botany Bay fleet, and where you will be perfectly safe from any irrup- tion of the Mahrattas. One word more, and .1 have done. If a letter is left in , the office for your master, observe if you think it is from a woman. If you do, endeavour to pry into it, and follow the same rule with all letters going from your master to any lady, and which may pass thro' your hands. It has been both said and sung, that " 'Tis woman that seduces all " mankind;" and as you are bound by your indenture to GOVRT OF SESSION GARLAND. 89 defend your master's good name, and to prevent, as much as in your power, any injury to his character or fortune, you cannot render him a more essential service, than by preventing him from forming improper intimacies with the fair sex, for such connections usually lead a man to ruin. Maetinus Scribleeus, junior. XIII. EPIGRAM ON THE LATE HUGO ABNOT, ESQ., ADVOCATE. Attributed to the Honourable Henry Erskine. The Scriptures assure us much may be forgiven To flesh and to blood by the mercy of heaven ; But I've searched all the books, and texts I find none That extend such forgiveness to skin and to bone.* XIV. SONG INTENDED TO HAVE BEEN SDNG BETWEEN THE ACTS OP A PLAY, (ACTED BY PARTICULAB DESIRE OF THE DEAN AND FACULTY OF ADVOCATES), IN THE CHARACTER OP A LAWYER,— January 1770. From a Volume of MSS. in the Library of the Faculty of Advocates, written by the Hon. Henry Erskine, and said to have been corrected by himself. 1 The Bards of all ages have made it their theme To sing of the merits, and blazon the fame * Hugo was so attenuated as to be almost a walking skeleton, — had he lived till the year 1825, he might have proved a formidable rival to the living skeleton of that period. One day he was eating a split dried haddock, commonly called a spelding, when the reputed author of these lines came in,—" You see," says Hugo, jocularly, " I am not starving." " I must own," observed Henry Erskine, " that you are very like your meat." 90 COURT OF SESSION GARLAND. Of other professions, and praise them at random Of lavjyers I sing, and make you avimndvm. Derry down &c 2 Tho' partial, I'll give you a representation Of the good and the ill we bestow on the nation. Our use is so certain, there is no denying'nt, If any one doubts it he ne'er was a client. 3 Extraordinary actions belong to the great, — The soldier, the patriot, or premier of state ; But we, unconnected with party or faction, Spend our time atnd our breath on an ordinary action. 4 Altho' with our virtues some faults may conjoin, The process is short that can make us repine ; For whoe'er be the Judge that decides on our blame, If he gives it against us we're sure to reclaim. 5 Tho' peaceable folks yet we often petition, Tho' not like our neighbours stirred up by sedition, So just are both houses that when we're refused. We petition again, nor think justice abus'd. To the fair, the delight and the joy of creation, We're tender and faithful without affectation ; And while to investigate truth is our duty, Ca,n find nought in them but love, honour, and beauty. 7 To other professions old age is a ruin. Unfits them for action, is a certain undoing ; COURT OF SESSION GARLAND. 91 We scorn to conceal it, like old maids and beaux, A lawyer's the better the older he grows. 8 All mankind beside live in terror for death, And with fear and unwillingness yield their last breath ; But a lawyer is happy, by labour hard toil'd, When his suit's at an end, and he's fairly assoiVd. 9 On the whole, we submit to your righteous decision. Having stated the law and the fact with precision ; And we crave that in ranking professions you'll find, If not ;pari passu, we're not far behind. XV. ODE OP SAPPHO PARODIED. This admirable Parody, with the exception ot one line by Lord Jeffrey, was written by the late John Richardson, Esq., Solicitor, London. Drunk as a Dragon, sure is he The youth that dines, or sups with thee Who hears and sees thee full of fun,^ — Loudly laugh and quaintly pun. 'Twas this first made me love my dose, And raised such pimples on my nose. For while I fiU'd to every toast, My cares were gone — my senses lost : I felt the claret and champagne Inflame my blood, and mad my brain. My toast feU faultring from my tongue, I scarcely heard the catch I sung, — I felt my gorge with sickness rise. The candles danced before my eyes, — My sight grew dim, the room turn'd round, I tumbl'd senseless on the ground. 92 COURT OP SESSION GARLAND. XVI. PATRICK O'CONNOR'S ADVICE TO HENRY M'GRAUGH, WHO WAS SENTENCED BY THE MAGISTRATES OP EDINBURGH TO BE WHIP'T THROUGH THE TOWN FOR EATING AT TAVERNS, AND NOT PAYING.— August 1774. From Mr. Erskine's MS. Poems previously noticed. In the Edinburgh Evening Courant, 31st August 1774, there occurs this notice relative to this unfortunate eater, who seems, like the redoubtable Dando of modem days, to have been the terror of Tavem-Keepers. — " This day, one Henry Macgraugh (an Irishman) was publickly whipt thro' this city, and afterwards remitted to prison for three months, pursuant to a sentence of the Magistrates. This fellow has been in the practice of imposing upon the inhabitants, by going into Taverns, calling for victuals and drink, and afterwards informing the people he had no money to pay for them. He had three times been taken before the Magistrates for these practices ; the first and second time he was dismissed on promises of good behaviour, and leaving the place ; but finding him altogether incor- rigible, the Magistrates were at last induced to pass the above sentence." Arrah ! Hany M'Graugh, very cruel your fate is To be virhipt thro' the town, 'cause you love to dine gratis. By my shoul, my dear jewel, if such be their due Who love a good dinner, for nothing, like you, Some folks I could name of no little renown Before you, might walk by your side thro' the town. Yet here, even here, you might spunge a good dinner, Without being thought so egregious a sinner. But the method you took will not pass in this city As at home : By St. Patrick, the more is the pity. Then learn from the Bailie that sous'd you — ^the way To eat and to drink yet have nothing to pay : Like him be made Councillor, Deacon, or Baillie, And as politics go, — What the devil's to ail ye 1 COURT OF SESSION GARLAND. 93 Then each day you may guzzle at the city's expence, Without Crosbie* or Boswellf to plead your defence. If you can't my dear creature, to Ireland be gone, For the Magistrates here hate all rogues but their own. XVII. EPITAPH ON CHARLES HAY, ESQUIRE, ADVOCATE, WHO LIES INTERRED UNDER THE BOWLING GREEN IN HERIOT'S GARDEN. By the Hon. Henry Erskine, from the same MS. No more to shine in bowling, or in law, No more of Papers, or of casts, to draw, Beneath his fav'rite turf, ah ! well-a-day. Lies the dead length of honest Charlie Hay. * Andrew Crosbie, Esquire, a Barrister of great eminence. He ia said to be the prototype of Councillor Pleydel in Guy Mannering. He was ruined, like many others, by the failure of the Ayr Bank, and died in such poverty in 1785, that his widow was under the necessity of applying for relief to the Faculty of Advocates, from whom she obtained an annual allowance of £50. Before his death, Mr Crosbie appears to have projected a work on the duties of Justices of the Peace, as an advertisement to that eifect appeared in the Advertiser Newspaper, February 16th 1785. His Library, in which "besides Classics, History, &c. there is a large collection of "books in the Roman and Civil Law" was advertised for sale by auction at "Hay's Vendue Warehouse, back of the Guard, Edin- " burgh," on Monday the 4th of July 1785. Amongst the interesting portraits of eminent Lawyers in the Parliament House of Edinburgh is one of Crosbie, presented by his widow to the Faculty of Advo- cates. It represents him in the attitude of pleading — ^perhaps before the house of Peers, with his gown on ; or more probably, before the General Assembly, as he has no wig on. His appearance is such as would certainly suit Councillor Pleydell — a stout man of the middle size, with a clear eye and ruddy complexion. Just such a joUy fellow as could take a lead in the High Jinks as chronicled in Gtiy Mannering. t James Boswell, Esquire. 94 COUET OF SESSION GARLAND. What, tho' from nature's hand deliver' d fair, And wide of every rub from want or care ? By envious death ta'en up, here short he lies, And craves a tear from every Bowler's eyes. Whoe'er thou art that haunt'st this verdant spot. Oh ! learn his virtues while thou mourn'st his lot. In the few Ends of life poor Charlie pla-i/d, No narrow thought his social bosom sway'd, Alike in bus'ness, and in pleasure keen. True to the Bar as to the Bowling-green ; Still did his heart with anxious bias bend. To save his client, and assist his friend. In every social scene he took the lead, And shipped with kindness o'er each friend's misdeed ; If e'er himself fell short, by this sad stone Learn his Amendment now, for he is gone. Short is the garm of life, and quickly o'er. Even when the party play'd is up three score. How hard the stroke then, when but just begun. To rob thee. Hay, of life, and us of fun ! E'er on the ill kept turf of Herigt's green. Another bowler shall like thee be seen. Bowls shall no longer feel their hiass'd side, And J nie T n shall forget to ride ; StiU in the Bank the short bowls shall be found. And those that reach the Bank shall block the ground. And Woods bare green, tho' roll'd and mow'd each day. Shall, from thy bones, produce a crop of Hay. COUKT dF SESSION GARLAND. 95 XVIII. EPIGRAM UPON THE REPORT THAT MR. YORKE, WHO MOVED THAT STRANGERS SHOULD BE EXCLUDED DUR- ING THE EXAMINATION OF EVIDENCE CONCERNING THE EXPEDITION TO THE SCHELDT, WAS TO BE CREATED LORD DOVER. From Mr Hume's MS. volume. la said to be from the pen of the Honourable Henry Erskine. Since Yorke's made a Peer by the title of Dover, All fears of Invasion must surely be over ; When he guards our coasts it may well be concluded, We shall always be sure to have strangers excluded. XIX. EPIGRAMS ON PHILIP SYNG PHISIC, M.D. 1792. From Mr Hume's MS. volume. — ^An American gentleman from Phila- delphia, of the very singular, but harmonious name of Philip Syng Phisic, having taken out his degree as Doctor of Medicine in 1792, the late Lord Kinnedder, then Mr William Erskine, an accomplished lady, the late Mrs Fletcher, and an eminent lawyer, afterwards Lord Corehouse, in a playful mood wrote the following Epigrams, both on the name and the inauguration. The first five are, it is believed, by the gentleman last alluded to, but the Editor has been unable to assign the remainder to their respective authors. 1 Sing Physic, sing Physic, for Philip Syng Phisic Is dubb'd Dr Phil for his wonderful skill ; Each sick phiz he'll physic, he'll cure every phthisic, Their lips fill will Philip, with potion and pill. If music, as Plato does stoutly maintain, In every disease be a sovereign thing For calming the spirits and cooling the brain. Be sure, Dr Phil, when you Physic, to sing. 96 COUfiT OF SESSION GAELAND. 3 Lo, Phisic, the College permits thee to work In curing diseases, the greatest of curses, Syng ! Dance then for joy, when thou thinkst at one jerk Phisic can empty both stomachs and purses. What a filip to physic, if Philip Syng Phisic His skill and his quill to support her shall bring. Of fever and phthisic each Master and Miss sick. Of Syng Phisic's physic the praises shall sing. Each gap in the science of physic to fill up, Old Phoebus, young Philip Syng Phisic bestows ; Then the potion and pill of Phil still shall we swill up. And Syng shall be sung at the close of the dose. 6 The physic of Philip so sweetly to swill up. Health, joy, and delight among mortals shall bring. With pap and with praise then stiU Philip we'U fillip. And loud lo Paeans to Syng ever sing. Death, since Phil Physics, thy triumphs are past, And broken thy dart is, and blunt is thy sting ; Phil shall fill us with Physic, while physic does last, And while Syng Phisic physics, we'll Syng ever sing. To each creature his own still is dearest and sweetest, Mine host loves old stingo, and honey the bee, Then Phisic with physic still Philip shall fillip. And sung by Syng Philip PhilUpics shall be. COUET OF SESSION GARLAND. 97 9 When Philip's great son, as old chroniclers sing, Fell sick, to great Philip* for physic he clung, Then Philip with physic so fiUip'd the king. That physic and Phil, by Timotheus were sung. 10 Now broke be Phil's pill-box and Timothy's lyre. Let fame to my hero their blazonments bring, Like Philip's great son he can bleed, or the sire He can physic like Philip, like Timothy sing. 11 Syng Phisic for fees seeks the sick man to physic, But unsought hopes the fee of his physic and skill ; So ne'er let Phil Phisic of physic the fee seek. Nor the sick man be fee sick of physic and Phil. 12 Let physic sing Philip, for Philip Syng Phisic, From plain Philip Phisic is dubb'd Dr. Phil, Sing Syng then each patient, while Philip shall physic. And Phisic shall fiUip with potion and pill. 13 That Apollo the God is of Physic and Song, Each school-boy I think will full readily hollow. Then since to his name the same arts do belong, Be Philip Syng Phisic our Magnus Apollo. * Alexander's Physician. 98 COUET OF SESSION GARLAND. XX. SCRIPTURAL MOTTOS, PROPOSED TO BE PUT UT IN THE INNER-HOUSE INSTEAD OF THE CREED AND COMMAND- MENTS, WHICH WERE TAKEN DOWN WHEN THE COURT WAS REPAIRED. From Mr. Hume's MS. Volume. LoEDS Ankeeville* and dunsinnanb. Methven. Meadowbank. Woodhouselee. Balmuto. Heemand. f Mouths have they, but they speak ( not. They say, Ha ! — ha ! f My mouth shall speak in para^ \ bles and sayings dark. My soul is like a weaned child. ( Then be not like the horse or mule \ which do not understand. ( My very bones are waxen old ( with roaring all day long. Loed Justice-Cleek eskgeote. Loed Peesident Campbell. I I like a bottle am become that in the heat is set, — I am dry and parched. rProm Heaven's end is his going 3 forth circling to the end again. — *) Take not the words of truth utterly ' out of my mouth, ! Lord. * David Ross, Esq., son of David Ross of Inverchasly, passed Advocate 27th July 1751. He obtained, in 1756, the office of Stewart- Depute of Kirkcudbright ; and on the 3d September 1763, became one of the principal Clerks of Session. On the death of Andrew Pringle of Alemoor, he was raised to the Bench 22d February 1776, upon which occasion he took the title of Ankerville. His Lordship died at his seat of Tarlogie in Ross-shire 16th August 1805, aged 78. COURT OP SESSION GARLAND. 99 XXI. LOED BANNATYNE'S LION. The exact degree of truth in the following Colloquy the Editor has been unable to ascertain. It is said that the Court had been engaged in the discussion of a Bill of Suspension and Interdict, relative to certain caravans with wild beasts on the Mound ; in the course of which Lord Bannatyne fell asleep. This cause having been disposed of, the next was called, which related to a right of lien over certain goods, when the learned Lord, who continued dozing, having heard the word lien, pronounced emphatically anglici, not gallice, by Lord Meadow- bank, made the mistake here recorded. Mbadowbank. —I am very clear that there was a lie upon this property. Bannatyne, (half asleep.) — Certainly. — but it ought to be chained, beca-a-se* &c. Balmuto, My Lord, it's no a livin' lion, — It's the Latin word lien. Heemand. — No, Sir — The word is French. Balmuto. — I thought it was Latin, — -for it's in Italics. XXIT. NOTES TAKEN AT ADVISING THE ACTION OF DEFAMA- TION AND DAMAGES, ALEXANDER CUNNINGHAM, JEWELLEE, EDINBURGH, AGAINST MR JAMES RUSSELL, SURGEON THERE. This jeu d'esprit is generally understood, — indeed we believe there can be no doubt on the subject, — to have been written by George Cran- ston, Esquire, afterwards Lord Corehouse, long an ornament of the Scotch Bench, from which, to the great regret of the bar, he was induced to retire in consequence of an attack of paralysis — which although severe, did not in the slightest degree aflfect his faculties. * The way in which his Lordship usually pronounced " because." 100 COUET OF SESSION GARLAND. He was much influenced in taking this step by friends who were anxious of putting the Lord Advocate Murray in his place. A singular correspondence was privately printed and circulated as to this matter, which created no little noise at the time. Most of the copies were subsequently suppressed, and probably not more than half a dozen, if so many, are now in existence. His Lordship tendered his resignation, 28th March 1839, but it was not transmitted to Government and accepted until the 18th April following. Lord Corehouse retired to his Seat on the Clyde, where, after a resi- dence of a few years, he died. He was of the family of the Lords Cranstoun, had originally been in the army, but subsequently became a member of the Faculty of Advocates, of which ultimately he was elected Dean. He was a gentleman of elegant tastes — an excellent scholar — an eminent lawyer — and an impartial Judge. These notes appeared in the Soots Magazine several years since, from whence they were transferred to the " Literary Gems," and subsequently to Kay's Edinburgh Portraits, vol. ii., p. 384, as a very appropriate illustration of the last sitting of " the old Court of Session." They are there properly described as a satire replete with ' ' humour with- out rancour," and as happily imitating "the overlaid phraseology of Lord Bannatyne, — the predeliction for Latin quotation of Lord Meadowbank, — the brisk manner of Lord Hermand, — the anti-gallic prejudices of Lord Craig, — the broad dialects of Lords Polkemmet and Balmuto, — and the inveterate hesitation of Lord Methven." LoED Peesident. Your Lordships have the petition of Alexander Cunning- ham against Lord Bannatyne's interlocutor.* It is a case of defamation and damages, for calling the Petitioner's Diamond Beetle an Egyptian Louse. You have the Lord Ordinary's interlocutor on page 29 and 30 of the petition. " Having considered the condescendence of the pursuer, " answers for defender," and so on, " Finds, in respect that " it is not alledged that the diamonds on the hack of the " Beetle are real diamonds, or any thing hut shining spots, " such as are found on other diamond beetles, and which " likewise occur, although in a smaller number, on a " greater number of other beetles, somewhat different from * The interlocutors of Lord Bannatyne were remarkable for being involved and compUoated ; he was, however, a good lawyer, and was an excellent specimen of a gentleman of the old school. COUKT OF SESSION GARLAND. 101 " the beetle libelled, similar to which there may be beetles " in Egypt with shining spots on their backs, which may " be termed lice there, and may be different, not only from " the common louse, but from the louse mentioned by " Moses as one of the plagues of Egypt, and which is ad- " mitted to be a filthy troublesome louse, even worse than " the said louse, which is clearly different from the louse " libelled ; but the other louse is the same with, or similar " to the said beetle, which is also the same with the other " beetle ; and although different from the said beetle libelled, " yet as the said beetle is similar to the other beetle, and " the said louse to the said beetle, and the said beetle to " the other louse libelled, and said louse to the other beetle, " which is the same with, or similar to the beetle, vAich " somewhat resembles the beetle libelled ; assoilzies the " defender, and finds expences due." Say away my Lords. LoED Meadowbank.* This is a very difficult and puzzling question, My Lords. * Allan MaconocMe was an accomplished man and able lawyer. His father was a writer in Edinburgh, and the son or grandson of a citizen of that city who purchased the small estate in the parish of Kirknewton, now called Meadowbank. One of our magniiicent genealogists asserts in his book that the Maconochies derived their descent from a famous " Tyrannicide " in the north. What that means we really are not prepared to say. His Lordship married Miss Welwood of Garvoch, in the county of Fife, by whom he had several sons — ^Alexander, afterwards the second Lord Meadowbank, was the eldest, and another son, James Allan, became Sheriff of Orkney and Shetland. The Garvoch estate ulti- mately came, through the failure of heirs-male, to the,'' second Lord Meadowbank, in right of his mother. This lady was rather strong-minded, and had she lived in these times, might have taken a high place amongst the female agitators for the rights of women. Her husband gave her great offence by his opinion in the case between Sir James Colquhoun and his lady, in which the point was, whether a husband was entitled, at his own will, to turn his wife out of the house in which the married pair were 102 COURT OF SESSION GAELAND. I have formed no decided opinion, but, at present, I am rather inclined to think the interlocutor is right, though not upon the ratio assigned in it. It appears to me there are two points for consideration: — First, Whether the words libelled amount to a conviduni against the Beetle. Secondly, Admitting the convicium, whether the pursuer is entitled to found upon it in this action. Now, my Lords, if there be a convicium at all, it consists of the comparatio, or comparison of the scaraiceus or beetle with the Egyptian pediculus or louse. My first doubt re- gards this point; but it is not at all founded on what the defender alleges, that there is no such animal as the Egyptian pediculus in rerum naturd ; for though it does not actually exist, it may possibly exist: and whether its existence is in esse or posse, is the same thing for this question, provided there be termini hdbiles for ascertaining what it would be if it did exist. But my doubt is here. How am I to discover what is the essentia of any louse, whether Egyptian or not ? It would be very easy to describe its accidents as a Naturalist would do, (it is a mistake to say that it belongs to the asteria, for that is a little, yellow, greedy, filthy despicable reptile ;) but we do not learn from this what the proprium of the animal is in a logical sense, and still less what is its differentia. Now, without thesej it is impossible to judge whether there is a convicium or not, forj in a case of this kind, which, sequitur living. Lord Meadowbank expressed an opinion approbatory of this right, whiob some mischievous friend carried to the lady, who there- upon became seriously displeased, and upon the return of her Lord and master from Court, gave him so warm a reception as made him regret, that when he so ably vindicated the rights and privi- leges of' the husband, he had entirely forgotten that he was him- self a married man. For the verity of this anecdote we cannot vouch, but it used in the olden time to be considered authentic. Lord Meadowbank died upon the 14th June 1816, in the 69th year of his age. COUET OF SESSION OAKLAND. 103 naturam delicti, we must take them meliori sensu, and presume the comparatio to be in meliorihus tantum. And I here beg that the parties, and the Bar in general, — LoED Hbemand.* (Interrupting.) Your Lordship should address yourself to the Chair. LoED Meadowbank, (resuming.) I say my Lord, I beg it may be understood, that I do not rest my opinion upon the ground that Veritas convicii ex- cusat; T am clear that, although the beetle actually was an Egyptian pediculus, it would afford no relevant difference, providing the calling of it so was a convicivm, and there my doubt lies. With regard to the second point, I am satisfied that the scarabceus, or beetle itself, has not persona standi in judicio, and therefore the pursuer cannot insist in the name of the scarabceus, or for his behoof. If the action lies at all, it must be at the instance of the pursuer himself, as the verus dominus of the scarabceus, for being calumniated through the convicium directed primarilyagainst the animal standing in that relation to him. Now, abstracting from the qualification of an actual dorniniwm which is not alleged, I have great doubt whether a mere convicium is necessarily transmitted from one object to another, through the relation of a dominium subsisting between them, and if not necessarily transmissible, we must see the principles of its actual transmission here, and that has not yet been pointed out. * Lord Hermand, who had a personal dislike to his brother Judge, used to interrupt him upon all occasions, and some scenes are yet recollected amusing enough, but not exactly calculated for exhibition in a Court of Justice. Hermand was uniformly the aggressor — " Macer," o[uoth Meadowbank, in the course of his speech one day — " Open that window." A few minutes had barely elapsed, when taking advantage of a pause, Hermand roared out, " Macer, shut that " window." Then came an order to shut, — ^then to open, and so on, to the infinite amusement of the Bar, but horror of the Bench. After the separation of the Court into Divisions, these scenes were put an end to, by Lord Hermand being placed in the First, and Lord Meadowbank in the Second Division. 104 court of session garland. Lord Heemand.* We heard a little, my Lords, ago, that this is a difficult case. I have not been fortunate enough, for my part, to find out where the difficulty lies. Will any man presume to tell me that a beetle is not a beetle, — that a louse is not a louse? I never saw the petitioner's beetle, and what's more, I don't care whether I ever see it or no ; but I suppose it's like other beetles, and that's enough for me. But, my Lords, I know the other reptile weU. I have seen them, my Lords. I have felt them ever since I was a child in my mother's arms ; and my mind tells me, that nothing but the deepest and blackest malice, rankling in the human breast, could have suggested this comparison, or led any man to form a thought so injurious and insulting. But, my Lords, there is more here than all that, — a great deal more. One would think the defender could have gratified his spite to the full by comparing the beetle to a common louse, an animal sufficiently vile and abominable for the purpose of defamation. — [Shut that door there.] He adds, my Lords, the epithet, Egyptian. I know well what he means by that epithet, — he means, my Lord, a louse that has fattened in the head of a gipsey or tinkler, xindisturbed by the comb, and unmolested in the enjoyment of its natural filth. He means a louse ten times larger, and ten times more abominable than those ,with which your Lordship and I are familiar. The petitioner asks redress for this injury, so atrocious and so aggravated, and as far as my voice goes, he shall not ask it in vain. * Lord Hermand, though positive and absurd, was an excellent lawyer, — a better-hearted or more honourable man never breathed. His Lordship was a son of I/Ord Kilkerran, and was admitted Advocate 17th December 1765. He succeeded Lord Braxfleld a£ a Senator of the College of Justice, 11th July 1799, and a Commissioner of Justiciary 4th August 1808, both of which offices he resigned in 18-^6. He died at Hermand 9th August 1827. COURT OF SESSION GAELAND. 105 LoED Ceaig. * I am of the opinion last delivered. It appears to me slanderous and calumnious to compare a DiaBlond Beetle to the filthy and mischievous animal libelled. By an Egyptian Louse, I understand one that has been found in the head of a native Egyptian, — a race of men who, after degenerating for many centuries, have sunk at last into the abyss of depravity, in consequence of having been subjugated a time by the French. I do not find that Turgot or Condorcet or the rest of the Economists ever reckoned the combings of the head a species of productive labour. I conclude, therefore, that wherever French principles have been propagated, lice grew to an im- moderate size, especially in a warm climate like that of Egypt. I shall only add that we ought to be sensible of the blessing we enjoy under a free and happy .-con- stitution, where lice and men live under the restraint of equal laws, the only equality that can exist in a well regulated state. LOED POLKEMMET.* It should be observed, my Lord, that what is called a * William Craig was a son of the Reverend William Craig, one of the Ministers of Glasgow. He was raised to the Bench upon the death of Lord Hailes, and took his seat as Lord Craig, 21st December 1792, and upon the 6th April 1795 succeeded Lord Henderson as a Lord of Justiciary. He was one of the contributors to the Mirror and Lounger. Mrs M'Lehose, the Clarinda of Bums, was his cousin-german, and to her son Andrew he bequeathed his library and a considerable portion of his means. Amongst the books was a small MS. collection of verses by him — which have so much merit that they deserve publication. His Lordship died at Edinburgh 8th July 1813, in the sixty-eighth year of his age. * William BaUhe, the eldest son of Thomas Baillie, Writer to the Signet, was, it was rumoured, made a Judge as a compensation for his having lost a law-suit which he should have gained, had it not been 106 COURT OF SESSION GARLAND. Beetle, is a reptile very well known in this country. I have seen mony ane o' them on Drumshorlie Moor. It is a little black beasty about the size of my thumb nail. The country people ca' them clocks, and I believe they ca' them also maggy wi' the mony feet, but this is not the least like ony louse ever I saw, so that in my opinion, though the defender niay have made a blunder through ignorance in comparing them, there does not seem to have been any animus injuriandi. Therefore, I am for refusing the petition, my Lords. Lord Balmuto. Am* for refusing the petition. There is more Uce than beetles in Fife, they call beetles clocks there. I thought when I read the Petition that the Beetle or Bittle had for a mistake of the Lord Chancellor, who took this method of repairing his blunder. Lord Polkemmet was generally reputed to be soinewhat dull " in the uptak'" and rarely decided a case on the first hearing. Upon one occasion, after hearing counsel, amongst whom was Henry Brskine, in a cause of no great difficulty, his Lord- ship said, " Weel, weel, Harry, I've heard a' yeVe said, sae I'll mak' " it wimble wamble in my wame," then turning to the Clerk of the Court, he exclaimed, " Avizandum." The impression of the lawyers of his time was, that although slow, his Lordship was sure — and it is asserted that few of his judgments were overturned in the Inner House. It may be here not out of place to remark that without almost any exception, the Judges of the latter part of the last century, were men well versed in juris- prudence, and although they had their peculiarities, the law of Scotland during their rule was manfully upheld. Lord Polkemmet resigned his Judgeship in 1811, and died in Edinburgh lith March 1816. * This word was uniformly pronounced by his Lordship, aum. Lord Balmuto, though a worthy man, was not exactly the beau ideal of a Judge. He and Hermand were amongst the last of the old school, and many judicial exhibitions of these individuals were infinitely more amusing than even the drolleries of a Liston, or the fun of a Grimaldi. COURT OF SESSION GARLAND. 107 been the thing that women have when they are washing towels or napery with, and things for dadding them with, and I see the Petitioner is a Jeweller till his trade, and I thought he had made one of these Bittles, and set it all round with Diamonds, and I thought it a foolish and extravagant idea, and I can see no resemblance it could have to a louse. But I find I was mistaken, my Lord, and I find its only a Beetle Clock the Petitioner has, but my opinion's the same it was before. I say my Lord, I aum for refusing the Petition, I say. Lord Woodhouselee.* There is a case abridged in the third Volume of the Dictionary of Decisions, Chalmers v. Douglas, in which it was found that Veritas convicii excusat, which may be rendered more literally, but in a free and spirited manner, according to the most approved principles of translation, " the truth of a calumny affords a relevant defence." If therefore, it be the law of Scotland, which I am clearly of opinion it is, that the truth of a calumny affords a relevant defence, and if it be likewise that the Diamond Beetle is really an Egyptian Louse, I am rather inclined to conclude, (tho' certainly the case is attended with difficulty,) that the Defender ought to be assoilzied. Eefuse. Lord Justice-Clerk (Eab.) f I am very well acquainted with the Defender in tliis * Lord Woodhouselee, a son of the vindicator of Queen Mary, was a gentleman of refined habits, and elegant manners. He was the father of the late Patrick Fraser Tytler, the Historian. His Lord- ship died 5th January 1813. He was author of the Memoirs of Lord Karnes, Essay on the Life and Writings of Petrarch, Essay on the Principles of Translation, &c. t David Rae, afterwards created a Baronet, an able lawyer, wis 108 COUET OF SESSION GARLAND. action, and have respect for him, and esteem him like- wise. I know him to be a skilful and expert Surgeon, one of the Commissioners for taking evidence in the Douglas cause. He succeeded Lord Auohinleck as a Judge of the Court of Session on the 14th November 1782, and Lord Kennet as a Lord of Justiciary, 20th April 1785. On the first of June 1799, he was promoted to the office of Lord Justice Clerk in the room of Lord Braxfield. He was made a Baronet 27th June 1804, and died on the 23d of October thereafter, in the 80th year of his age. From his Lordship's residence being near Musselburgh, the cause of Chalmers against BaiUie, which had made a great noise, and in which he had taken an interest — was very cleverly introduced into his speech. Sir David Rae has been very unfairly treated by Lord Cockburn in his Memorials. He was a very able Lawyer, which Cockburn was not. Lord Alloway, a whig, held a very different opinion of his merits. In the case of Peacock against Glen, Lord Alloway was in the minority. The bar subsequently held the opinion that he was right, and the other judges wrong. He observed in the course of his very admirable speech, " My opinions on this point have been formed " under Lords Braxfield and Eskgrove, the two ablest conveyancers " evL'r on this henchy Shaw, Vol. iv., p. 753. Thus two of the ablest Scotch Judges of modern times have been held up by one, who never was a Lawyer, as incapables ! Did Lord Cockburn ever hear of this celebrated case, — ^the decision in which was frequently the cause of anxious discussion between the young lawyers in the Outer House? — the Senior Lawyers having recognized Lord AUoway's opinion as the sound one, based as it was on the opinions of Braxfield and Eskgrove. The Justice-Clerk was succeeded in his baronetcy by his son, for many years Lord Advocate of Scotland, and who ought to have been Lord Chief Baron prior to the abolition of the Court of Session, but who was sacrificed to conciliate political opponents, and the honour- able James Abercrombie, afterwards Lord Dunfermline, received the appointment to which Sir William Rae was justly entitled ; for he had served his country for many years in the difficult position of Lord Advocate with unusual ability and fairness. During his rule he held that a difference of opinion in politics did not exclude able Lawyers from high offices. Sir William was married, but died issueless, and the title became extinct. COUET OP SESSION GAELAND. 1Q9 and also a good man, and I would do a great deal to serve him, or be of use to him if I had it in my power to do so, but I think on this occasion he has spoken rashly, and I fear foolishly and improperly. I hope he had no bad intention. I am sure he had not. But the Petitioner, (for whom I have also a great respect, because I knew his father, who was a respectable baker in Edinburgh, and supplied my family with bread, and very good bread it was, and for which his accounts were regularly discharged,) has a Clock or a Beetle, I think it is called a Diamond Beetle, which he is very fond of, and has a fancy for, and the Defender has compared it to a louse, or a bug, or a flea, or some thing of that kind, with a view to render it despicable and ridiculous, and the Petitioner so like- wise, as the owner of it. It is said that the beast is a louse in fact, and that the Veritas convicii excusat, and mention is made of the case of Chalmers and Douglas.* * For a report of the case, see Fac. Collection, February 22, 1785. It was an action brought by Mrs Elizabeth Chalmers, widow of Archibald Scott, surgeon in Musselburgh, against Helen Douglas, the spouse of James BaUlie, Esquire, of Olivebank, for defamation. From the evidence adduced, it was clearly established, that Mrs Baillie had, at various times, and at various places, accused Mrs Scott of incon- tinence, and the question came to be, whether a proof of the truth of the allegation was allowable. The Commissaries found it was not, but the judgment was altered by the Court, and it was held that Mrs Baillie should be allowed a proof of all such averments as clearly involved guUt but that, in hoc statu, it would be unjust to allow evidence to be taken of trifling or equivocal incidents, although such might eventually be received to fill up the measure of evidence. Mrs. Baillie gave in a condescendence, which contained some very singular averments. One of the allegations, Article 10th, offered to be proved, is too curious to be overlooked ; it is as follows. — The common people of Scotland entertained a foolish idea, that a pudding or haggles put among boiling water wiU burst, unless the name of cuckold is pronounced at the time of its immersion. Now, the defender offers to prove, that so strong and- so general was the understanding of the common people in Musselburgh and its neigh- 1 1 COURT OF SESSION GARLAND. I have always a great veneration for the decisions of your Lordships, and I am sure will always continue to have while I sit here, but that case was determined by a very small majority, and I have heard your Lordships mention it on various occasions, and you have always desiderated the propriety of it, and I think have departed from it in some instances. I remember the circumstances of the case well. Helen Chalmers lived in Musselburgh, and the Defender, Mrs Baillie, lived in Fisherrow, and at that time there was much intercourse between the genteel inhabitants of Musselburgh and Fisherrow, and Inveresk, and likewise Newbigging, and there were balls and dances or assemblies every fortnight, and also sometimes, I believe, every week, and there were likewise card assemblies once a fortnight, or oftener, and the young folk danced there also, and others played at cards, and there were various refreshments such as tea or coffeej and butter and bread, and I believe, but I am not certain, porter and negus, and likewise small beei", and it was at one of these assemblies that Mrs Baillie called Mrs Chalmers a whore or an adultress, and said she had lain with Commissioner Cardonnel,* a gentleman whom I knew bourhood, that the name of Doctor Scott had originally acquired, and continued to preserve this virtue, by the conduct of the pursuer ; that down to the day of his death, it was invoked by the good house wives of that neighbourhood, when in the course of domestic economy a haggies or pudding happened to be boiled." This, and various other allegations, having been rejected by the Court, and the proof limited to actual acts of incontinency, Mrs Baillie appealed, but the judgment of the Court below was affirmed, 6th April 1785. After some farther litigation, Mrs Baillie was found liable in damages and expenses, which was just what she deserved. The case excited great interest at the time, from the parties being well-known in Edinburgh. * Mansfield Cardonnel, Esquire, one of the Commissioners of the Customs, who had a residence in Musselburgh. He was a married man at the period of the alleged intercourse, which was represented COUET OE SESSION GABLAND. Ill very well at one time, and had a great respect for, — he is dead many years ago, — and Mrs Chalmers brought an ;;ction of defamation against her before the Commissioners, and it came by advocation into this Court, and your Lordship allowed a proof of the Veritas convicii, and it lasted a long time, and in the end answered no good purpose even to the Defender herself, while it did much harm to the character of the Pursuer. I am, therefore, for refusing such a proof in this case, and I think the Petitioner and his Beetle have been slandered, and the I'etition ought to be seen. LoED Methvbn. If I understand the Interlocutor, it is not said that the E-a-a-gyptian lice are Beetles, but that they may be or resemble Beetles. I am, therefore, for sending the Process to the Ordinary to ascertain that fact, as I think it depends upon that whether there be a-a-a-conmctMrn or not. I think also that tiie Petitioner should be ordained to a-a-a-produce his Leetle, and the a-a-a-Defender an Egyptian Louse, and if lie has not one, he should take a diligence to a-a-a-recover lice of various kinds, and that these be remitted to Dr Monro or a-a-Mr Playfair, or to some other Naturalist to report on the subject. — Agreed to. as having taken place so far back as the year 1748. This gentleman is said to have been the father of Adam Cardonnel, Esq., known to t'.ia Scottish Antiquary as the author of a series of descriptions of ancient buildings in Scotland, Ulustrated by etchings, and who fifterwards succeeded to an estate in the north of England, and changed his name to Lawson. 112 COUET OF SESSION GARLAND. XXTIT. QUESTION OF COMPETITION, KESWICK v. ULLSWATER. Generally ascribed to the same accomplished Gentleman to whose pen we are indebted for the Report of the Diamond Beetle case. In a competition amongst the Lakes of Cumberland and Westmoreland, after sustaining the preferable claim of Windermere, it came to be disputed, whether Kyswick ought to be preferred secundo loco, or brought in pari passu with Ullswater. Pleaded for Kyswick, — Primo, This piece of water is circular, and retains the form of a lake in every point of view. On the contrary, Ullswater is narrow and winding, and it deceives the spectator, by assuming the appearance of a river. Its claim to beauty ought therefore to be re- pelled, as founded upon a simulate right ; and although a broad expanse of water is often less interesting than a contracted stream, yet this is not the case where there is evidently dolus dans causv/m contraetui. Secundo et separatim. — From the top of Skiddaw, the first object that arrests the attention is Kyswick, with its surrounding vale, and its triti juris, that arrestments are preferable according to their dates. Erskine, B. III., tit. 6, §18. Tertio, The islands in this lake are more numerous and varied, and some of them are covered with fine wood, not a sylva cadua, like that on Ullswater, but grown timber, which could not be cut by a liferenter, even if he were infeft cum sylvis, though perhaps he might use it to keep the houses in a habitable condition — 26th July 1737. Fergusson. C. Home. Lastly, The distant mountains are more magnificent, and they disclose, in the back-ground, more picturesque and romantic scenes, particularly in the pass of Borrowdale, COUET OF SESSION OAKLAND. 113 towards the black-lead or wad mines, all of which are to be held part and pertinent of Kyswick, according to the maxim accessorium sequitur prindpale. In support of the argument various authorities may be referred to. Gray's Letters, p. 18; Gilpin's Tour, p. 39. And so it was decided by Mr Avison, organist of Durham. 30th June 1772, who pronounced the following judgment : — " This is beauty lying in the lap of horrors." Answered for Ullswater, — Nothing can be more formal and insipid than the figure of Kyswick, which is almost an exact circle, while this lake resembles the letter S, which is the true line of beauty ; nor can it be mistaken for a river, because it does not flow, et rivus est locus per tongitudinem depressus quo aqua decurrat cut nomen est a Uoyoupeiv, id est a fluendo. — Dig. lib. 43, tit. 21, 1. 1, § 2. De Rims. Besides, in point of size, it equals or exceeds Kyswick, and the quantity of water in the one may be set ofl" against that in the other, which, it will not be disputed, is a compensatio de liquido in liquidum. ' Secundo, The solitude that reigns along the bold and precipitous shore of UUswater, is peculiarly romantic and pleasing, for, amidst a scene of broken banks, one naturally looks for St, 'sequestration, but the sides of Kyswick are covered with houses, and if two lovers had an assignation there, it would soon be intimated all over the country. Terti(f, As to the islands, — Vicars Island spoils the effect of the rest, for it is covered with corn fields, which are certainly out of place there, corn being parsonage, and not vicarage. Forbes on Teinds, p. 39. Not to mention that its banks are quite deformed by Mr Pocklington's fortifications, L 1, § 6. De ripa monien, &c. Lastly, It is impossible to enter Borrowdale with personal security, from the suspension of loose rocks which are con- stantly tumbling down, so that few travellers have orderly proceeded to the top of it, whatever diligence they may have used. Besides, the wad mines are in lease, and therefor* 114 COUET OF SESSION GARLAND. form a proper wadset, which has nothing to do with the lake. With regard to the authorities cited, the organist Avison was an inferior judge, and not competent to decide the question, being in the special service of the Bishop of Durham, and proceeding to Carlisle in a retour. Eeplied for Kyswick. — The fertility of Vicar's Island is in its favour, and the beauty of the scene wiU be increased quantum locupletior facta, while the islands of Ullswater are denuded, not only of trees, but of grass, and even the goats on them have been allowed a separate aliment. Mr PockHngton's buildings have done no harm et domwm suam reficere unicuique licet, L 61, d. De reg. besides they are nova opera, which will look better when the lime is black- ened by the weather. Duplied for Ullswater. — It will never improve, quod ah initio vitiosum, &c. The travellers preferred Kyswick by their &st interlocu- tor, but a second bottle being presented and discussed they could see no difference between them, and found accordingly. XXIV. LITEEAEY INTELLIGENCE EXTRAOEDINAIIY. Proposals for publishing, by subscription, a new, elegant and splendid edition of the Decisions of the Court of Session on the Plan of, but greatly superior to the cele- brated editions of Shakespeare, Milton, Hume, and Thomson. CONBITIONS. 1. This work will be comprised in one hundred volumes huge folio, at the moderate price, to subscribers, of fifty COUKT OP SESSION GARLAND. 115 guineas each volume, and as only 20,000 copies are meant to be thrown off, the price to non-subscribers will probably be greatly raised. 2. It will be printed on a superfine wire-wove double atlas paper, about 6 feet long, by 3 feet broad, made on purpose, and with an elegant new silver type, cast for the occasion, and never to be used again. 3. It wiU be ornamented with five hundred most ex- quisite copperplates of the subjects expressed in the work, nicely chosen, painted by the first-rate artists, and engraven by the most eminent masters. 4. The first volume will contain the form of process, beginning from the first rudiments of the business, and advancing to the final consummation in the victory of one party, and the mortification of the other. 5. Every separate decision will be adorned with a vignette, descriptive of the subject, and a tail-piece ex- hibiting the consequences of the determination to the contending parties. 6. When the book is finished, all the pictures painted for the work will be given to the public in the following manner : — The Parliament House will be stuck as full of them as it can hold. — Part of the remainder will be sent to the Council Chamber, and part to ornament the walls of the new Bridewell, and to furnish to the inhabitants pro^^ per lessons of distributive justice. To THE Public. The rapid progress of Scotland in some of the Fine Arts has long been evident, but hitherto our proficiency in en- graving and printing has not been altogether so publicly manifested as many patriotic North Britons eould have wished. The present publication will,, it is hoped, exhibit to all the world such proofs of the taste, genius, and refine- ment of Caledonians, as must leave at an immense distance every puny competitor. The splendid publications of a 116 COTJET OF SESSION GAELAND. neighbouring nation have been mostly confined to works of amusement, — in this we claim the honour of blending the utile with the dulce. Of the eminence of the artists to be employed, the public may be satisfied upon the words of the publishers. Of the subjects to be selected, they will judge for themselves from the following specimen of a few, and let the connoisseurs decide, whether they are not equally calculated to enforce and illustrate the ideas of the work, as those introduced into the new editions of Shak- speare and Hume. . 1. A superb frontispiece, the idea taken from .^Esop, the monkey deciding the property of an oyster, by giving each competitor a shell, and taking the meat for his own part. 2. An afFecting representation of a bar-keeper shutting the outer-house door in the face of a writer's clerk, who has not paid him the dues. 3. Three lawyer's clerks boxing petitions. 4 A judge retiring to the water-closet. 5. A picturesque view of a lawyer putting on his gown, and adjusting his wig. 6. A spirited sketch of the macer calling silence. 7. Young writers examining the suspension rolls. 8. Outer-house hearings interrupted by the ringing of the inner-house bell. These are a few of the subjects of the plates intended to enrich this invaluable work. The public may be assured, that all the others are selected with equal taste, and ex- hibit subjects not less striking and interesting than those now specified. COUET OF SESSION GARLAND. 117 XXV. SONG, BY WILLIAM EESKINE, ESQ. ADVOCATE. William Erskine, afterwards Lord Kinnedder, was the son of the Rev. William Erskine, Minister of Mutlul, — he was admitted Advocate in 1790, was appointed Sheriff-Depute of Orkney 6th June 1809, and promoted to the Bench, on the resignation of Lord Balmuto, upon the 29th January 1822 ; — he died on the 14th of August following. He was the intimate friend of Sir Walter Scott, and author of several small poems, amongst which are Supplementary Verses to Collins' Ode on the Superstitions of the Highlands, which possess great poetical merit. 1. .say not, Cynthia, maid divine ! That vain, our vows must ever prove. That far from thee I still must pine, For fortune is the foe of love. And blissful dreams and visions bright. Ah ! yield not to the fiend despair, Nor dash with shades of deepest night, The scenes our fancy form'd so fair. Far, far from hollow splendour flee, And live with innocence and me. Come, view the vale, my peerless maid. Where lost to all but thee I dwell. Where nature's beauties deck the shade That hides thy lover's lowly cell. See, peace, the cherub, wanders here. See, independence guards my store, And truth, and hope, and love are here,- My Cynthia can'st thou wish for more ? Then haste, from hollow splendour flee. And dwell with innocence and me. 118 COUET OF SESSION GAKLAND. XXVI. PAEODY ON THE PEECEDING, BY GEORGE CEANSTON, ESQ., LORD COREHOUSE. 1. say not, William, youth divine. In vain your company I seek. That far from me to-day you dine. The' you were ask'd on Thursday week. Your leisure hours, your eves of rest, O give not to some stupid drone. Nor be the dull Dunsinnan's* guest. For you had better yawn alone. Far, far from Lords of Session flee. And dine with Thomson,t and with me. 2. Come, view the meal, my peerless blade, Which Annie's gentle cares afford, Two chickens from the Cowgate head, To grace your George's simple board, — * Sir William Nairn, Bart., Lord Dunsinnan, — his Lordship was admitted advocate 11th March 1755, made a Lord of Session 9th March 1786, and of Justiciary, 24th December 1792. He resigned the latter appointment in 1808, the former in 1809, and died at Dunsinnan House on the 20th of March 1811. He was uncle of the celebrated Katherine Nairn, who was convicted, 14th August 1768, of being art and part guilty with her brother-in-law, Lieutenant Patrick OgUvie, of the murder of her husband, Thomas Ogilvie of Bastmiln, as also of an incestuous intercourse with her said brother- in-law. She, (by her uncle's assistance, as was reported,) escaped from prison, and thus avoided the gallows ; but her paramour was ■esecuted. In a Magazine for 1777 she is said to have taken refuge in a Convent at Lisle, " a sincere penitent." t The late Thomas Thomson, Esq., Deputy-Clerk-Begister, and one of the Piiacipal Clerks of Session. COUET OF SESSION GAELAND. 119 And peas, — the pudding crowns my cheer, — Potatoes purchas'd at the door. And greens, and tarts, and ham, are here, — My William, can'st thou wish for more 1 Then haste, from Lords of Session flee. And dine with Thomson and with me. XXVI. V E E S E S. to george pack wood, esq., by george cranston, esq., lord corehouse. The Baebee's Song. Paokwood's Paste, Sir, and Strop, I adopt in my shop ; Hunting razors come as pat as they can : Mark well the Cutler's fears. When tailors whet their sheers On Packwood's razor strop — he's your man ! What says the Cutler? "Humphry, lay aside the stone, this new invention may save us trouble of grinding. " The counting-house pen- knife, whetted on one of Packwood's strops, will experience a positive proof of their superior exceUenoe, and give a keen edge to a razor, to shave to admiration. Hunting razors secured with a guard, to prevent cutting. To prove their safety a gentleman has shaved with one of them on horseback, — an acquisition to timid shavers, or those troubled with a nervous complaint ; Price £2, 12s. 6d. The razors are sold by Mr. Packwood, London, and Mr. Raebum, Edinburgh, &c. &c. Packwood was the inventor of a well-known strop for sharpening razors. like the Warrens and Rowlands of later days, the newspapers teemed with his puffs. He is said to have kept in his pay a poet, to chaunt Ms praises and sing poems in honour of the immortal strop. In 1796, he published a collected edition of these invaluable morceavoi, under the title of "Paokwood's Whim, — the Goldfinch's ugst, or the Way to get Money and be Happy," containing a copious coflediion of his diverting advertisements, with useful observations, &o. to which he prefixed his portrait. Of the merits of this now rare production, one or two specimens may suffice. — 120 COURT OF SESSION GARLAND. Extempore, On Paokwood's Razor Strop. Sans doute, Mr. Packwood, your elegant Strops, Are the best that e'er mortal invented : We have nothing to do but to lather our chops, The razor soon makes us contented. Surely Magic herself has been lending her aid, To assist in the brilliant invention ; And the fam'd composition you also have made, Should assuredly gain you a pension. Packwood's Conundrums. Why is Packwood's paste unlike the stocks ? Because it never falls, but always rises in the public opinion. Why is Packwood's shop unlike the present lottery ? Because every purchaser draws a prize. Elbctionbering Intelligence, George Packwood, I!sq. , we hear, is returned for the County of Strop, with very little opposition. Manhood's honours on my chin, Always rough, and tough, and black, would Agonize my tender skin, TiU I'd heard of peerless Packwood. how terrible to shave ! How it put me to the rack would, 1 would soon have seen my grave. Had not heaven created Packwood. Barbers of celebrity, At my visage hew and hack would Like a great church bible, I Was adorn'd with cuts, my Packwood. Torture me their razors blunt. Torture worse their ceaseless clack would, — Hence, for other victims hunt, I dismiss you, — thanks to Packwood, COURT OP SESSION GARLAND. J 21 Oft a ragged knife, whose edge Cut no better than its back would, On my honour's sacred pledge, I have strop'd on strop of Packwood. Every notch and knob I soon Grind away so smooth and smack would — Ere you said Jack Eobinson, Synagogues would shave, my Packwood. Thou hast publish'd odes divine ; Not the verses of Balzac would Bear to be compar'd with thine. Author of the Whim of Packwood. that Galcott, since he has At composing glees a knack, would Two sopranos and a bass. Set to poetry of Packwood. Though his trio, it is 'true. Sold by Mr Cahusac, would Never please the beardless crew Of Haymarket squeakers, Packwood. Village maids who toss the hay. Village youths who rear the stack, would Pour to you the jocund lay. Kiss facilitating Packwood. Courted and caress'd no more. Poor George Hanger tread thy track would, George, self-gibbetted before,* Tries to cut his throat with Packwood. * George Hanger, afterwards Lord Coleraiiie, in Ireland, a f avovirite of George IV. whilst Prince of Wales.— He published a life of himself, 2 vols. Lond. 1803, 8vo, to which he prefixed his own eflSgy, hanging from a gibbet, — a pictorial illustration of the family name. 122 COURT OF SESSION GARLAND. Who can trust his mucilage, Trust his leather never crack would, George's wit has lost its edge, Crack'd his credit is, my Packwood. Envy, hissing from her cave. Thy immortal fame attack would, Thou her snaky head shall shave. With a whetted razor, Packwood. Stung with rage and jealousy. Scandalize thee many a quack would ; Never heed these fellows I For a moment wiU, my Packwood. Handbills they disperse, but then They are useful when we would. Or to wipe a razor clean Whetted on the strop of Packwood. One Macdonald, or Macduff, Or some other Highland Mac, would Pawn upon the world his stuff, For the genuine paste of Packwood. Were the Irish venders here, How they soundly thump and thwack would ; We have no shilelahs here, Scots are peaceful people, Packwood. Pat has fury, Sawney skill, Of the two the first I lack would ; Don't you think a lawsuit wiU Do his business better, Packwood. Eaebum * begs that by the mail, Of your strops you send a sack would, * Raebnm, a principal perfumer in Edinburgh. COURT OF SESSION GARLAND. 123 Brisk and brisker grows the sale Every day, illustrious Packwood. Fill a bumper to the brim, I of Nantz or Cogniac would Pledge you three times three to him Who employs the strop of Packwood. {To the Editor of the Morning Post.) Stanzas from a grateful Bard, Please insert in praise of Packwood. I am. Sir, with due regard, Your most obedient servant. — Jack Wood. XXVIII. HELVELLYN. By Sib Walter Sc6tt, Bart. In the notice prefixed to this poem in Scott's Poetical Works, vol. 6, p. 370, New Edition, I2mo, it is stated, that "in the spring of 1805, a young gentleman of talent and amiable disposition, perished, by losing his way in the Mountain Helvellyn. His remains were not discovered till three months afterwards, when they were foimd guarded by a faithful terrier bitch, his constant attendant during frequent solitary rambles through the wilds of Cumberland and Westmoreland." The name of this unfortimate youth is ilot given ; but in a note on a copy in manuscript, it is said to have been Charles Gough. I climb'd the dark brow of the mighty Helvellyn, Lakes and mountains beneath me gleam'd misty and wide ; All was still, save by fits, when the eagle was yelling, And starting around me, the echoes replied. On the right, Striden-edge round the Red-Tarn was bending, And Catchedicam its left verge was defending, One huge nameless rock in the front was ascending, When I mark'd the sad spot where the wanderer had died. 124 COURT OF SESSION GARLAND. 2 Dark green was that spot mid the brown mountain-heather, Where the Pilgrim of Nature lay stretch'd in decay, Like the corpse of an outcast abandon'd to weather, TiU the mountain-winds wasted the tenantless clay. Nor yet quite deserted, though lonely extended, For faithful in death, his mute favourite attended The much-loved remains of her master defended. And chaced the hill-fox and the raven away. 3 How long didst thou think that his silence was slumber 1 When the wind waved his garment, how oft didst thou start 1 How many long days and long nights didst thou number. Ere he faded before thee, the friend of thy heart ? And, oh ! was it meet, that, — ^no requiem read o'er him, — No mother to weep, and no friend to deplore him; And thou, little guardian, alone stretch'd before him, — Unhonour'd the Pilgrim from life should depart 1 4 When a Prince to the fate of the Peasant has yielded. The tapestry waves dark round the dim-lighted haU ; With scutcheons of silver the coffin is shielded, And pages stand mute by the canopied pall : Through the courts, at deep midnight, the torches are gleaming ; In the proudly-arch'd chapel the banners are beaming ; Far adown the long aisle sacred music is streaming, Lamenting a Chief of the people should fall. 5 But meeter for thee, gentle lover of nature. To lay down thy head like the meek mountain lamb, When, wilder'd, he drops from some cliff huge in stature, And draws his last sob by the side of his dam. And more stately thy couch by this desert lake lying, Thy obsequies sung by the grey-plover flying. With one faithful friend but to witness thy dying, In the arms of HelveUyn and Catchedicam. COUET OF SESSION GAELAND. 125 XXIX. PARODY ON THE PRECEDING. The late John Richardson, Esquire, Solicitor, London, an intimate friend of Francis Jeffrey, Henry Cockburn, and John Murray, was the author of this clever parody. It was understood formerly to have been the joint composition of the friends, but it has subse- quently been ascertained that with the exception of one line by JeflErey, it was entirely written by Richardson. 1 I climb'd the High Street, as nine was just ringing. The Macer to three of his roll had got on ; And eager each Clerk on his Counsel was springing, Save on thee, luckless lawyer,* who fee had got none. * Otho Herman Wemyss, Esquire, admitted Advocate 17th Dec. 1756, — ^he was the son of Mr. William Wemyss, a respectable writer to the signet ; and although a lawyer of no inconsiderable talent, met with little success at the bar. He was a staunch whig, and in old age, obtained the appointment of Sheriff -substitute of Selkirk ; which office, shortly before his death in 1835, he relinquished. While holding this appointment, he paid a visit to Edinburgh, during the excitement occasioned by the outcry against the annuity- tax, and upon this occasion, got his liberal notions somewhat shaken. It is well known that Mr. Wm. Tait, bookseller, who had obtained great popularity as a leading member of the radical party, was, upon his refusal to pay the obnoxious tax, sent to the Calton Jail, and his progress there partook more of a triumphal procession than an incarceration for non-payment of taxes. Poor Otho was sauntering along Waterloo Place, and had got almost opposite to the Calton Jail, when he was surrounded by the mob assembled on this memor- able occasion. A cheer was given for Mr. Tait, and one of the illustrious unwashed insisted that the sheriff should doff his beaver, and join in the acclamation. Otho, who thought the better part of valour was discretion, did as he was bid, and shouted loudly, " Tait for ever." The stranger, delighted with the enthusiasm displayed, swore eternal friendship, and as embracing amongst men is not relished in this country, insisted on shaking hands with so worthy a citizen. This boon was conceded, and the ancient patriot's fingers received so fervent a pressure, that they tingled for some time after- wards. The mysterious anti-annuitant then beat a retreat, and 1 26 COURT OP SESSION OAKLAND. On the right, Nicodemus* his leg was extending, To the stove, Johnny Wright + his brown visage was bending; And a huge brainless JudgeJ the fore bar was ascending, When I marked thee, poor Otho, stand briefless alone. Dark and green is that spot, by thy love still distinguished, T'wixt the stove and the side-bar, where oft thou didst stray Like the ghost of a lawyer, by hunger extinguish'd. Who walks a sad warning to crowds at bright day. when the judge had recovered from the thriUmg emotions produced by the affectionate squeeze, he discovered that his new friend had removed from one of his digits a valuable seal ring. This, he indubitably had taken away from no sordid motive, but as a me- morial of the veneration in which he held his proselyte, and as a pledge of fraternization. Otho, who told the story, was by no means reconciled to this popular manner of testifying respect. * Edward M'Cormick, Esq., Sheriff-depute of Ayrshire, — ^known by the sobriquet of Nicodemus, which was given him by John Clerk. He was a tall man, upwards of six feet two. t John Wright, Esq. — The curious reader will find two very characteristic etchings of this eccentric and very ugly person in Kay's Edinburgh Portraits. Wright is said to have been originally a shoe- maker, but having contrived to educate himself, he became a lecturer on civil law, and a " law grinder." He afterwards passed advocate, but had Uttle or no business; — latterly, he had a small pension allowed him by the Faculty. A gentleman now dead, who knew him well, in a note on this passage, has written, — " He had an " extraordinary coarse countenance, — ^no utterance, and bad manner, " — had latterly a pension from the Faculty which he long resisted " to take. He was an honest, iunocent man, and most confoundedly " obstinate.'' J LordPolkemmet. — The same gentleman who recorded his opinion of Wright, furnishes this notice as to Polkemmet : — He was " a man " of great stature and solemnity of manner. He spoke in a drawUng " way, with a strong Scotch accent, — all which left an impression " against him. He was an upright, honest man, and upright judge, " and considered a very good lawyer, though he required time to " consider. He retired on a pension." COURT OF SESSION GAELAND. 127 Nor yet quite deserted, tho' poorly attended, For see, his right hand Virgin Smith* has extended, And Hagart'st strong breath thy retreat has defended, And chas'd the vain wits and loud scoffers away. * A Member of Faculty, of great respectability and worth, who acquired the sobriquet of Virgin, from his extreme purity of morals, and entire want of practice. t John Hagart of Cairnmuir was admitted advocate 24th January 1784, — ^a coarse vulgar looking man, with a breath which savoured not of the spicy gales Wafted from the shore Of Araby the blest — He had tolerable practice for some years, but was not much respected : latterly, he embroiled himself with the Judges, and having been very severely reprimanded by Lord President Hope for the manner in which he had conducted himself as a counsel for Mrs Belinda Colebrook or Taaffe, a lady who kept the Court in constant employ- ment some years since, he brought an action of damages against his Lordship, which, after his death, was insisted in by his trustees, in consequence of special instructions to that effect in his settlements. Both the Court and House of Peers held the action untenable. The ultimate judgment was pronounced by Lord Gifford, and His Eoyal Highness the late Duke of York was one of the Peers who sat out the whole discussion. Mr. Hagart was by no means remarkable for suavity or politeness of manner. From his possessing a small estate in Perthshire, he was in use to attend the meetings of Justices and Freeholders, where he was fond of showing off his forensic talent. It so happened, that the county gentlemen had resolved to apply to the Lords of the Treasury upon some matter or other, and had accordingly prepared a petition, which was generally objected to, on the ground of its being much too long. It was thereupon remitted to a committee, which speedily curtailed it of its fair proportions. Every person was satisfied with the abridgement, excepting Mr. Hagart, who was never satisfied with anything, and he contended, that shorteiied as it was, it would take ten minutes to read: "now," says the learned gentleman, " if it takes so much time in reading, the Lords of the Treasury will toss it aside, and pay no attention to it." Upon this, the late Sir Alexander Muir Mackenzie remarked, that he would himself read it to the gentlemen assembled, explicitly and distinctly, in five minutes. The worthy baronet, be it observed, had a protrusion 128 COUET OF SESSION GAELAND. 3- How keen didst thou gaze as the agents mov'd past thee ; iloyf oft when the Macer bawl'd loud didst thou start. Alas ! thy thin wig not much longer will last thee, And no fee will the hard hearted writer impart. And oh ! is it meet that a student of Leyden,* Should hardly have whole coat or breeches to stride in, While home-bred and blockheads their carriages ride in. Who can't tell where Leyden is placed on the Chart 1 4 When Balmuto or Bannyt the bench has ascended, The former to bellow, the latter to sleep, of his lower lip, which made it more than twice the ordinary size ; and it had something of the appearance of a pair of underlips. Hagart angrily replied, " I am ready to join issue with the learned gentleman, [Sir Alexander was an advocate,] as to the fact, and I wish, therefore, that any one present would take the trouble of reading the petition aloud, excepting always the learned gentleman himself, as, from his having double lips, he is able no doubt, to read it twice as quickly as any one else." This piece of impertinence, which is given as characteristic of the man, may perhaps be attributable to party spleen, as Hagart was a radical whig, or liberal, and Sir Alexander a keen tory or conservative. Hagart was no scholar, although somewhat anxious to create an impression that he was one :• — ^he was counsel in an action brought by the owner of a horse against a party who had had the use of it, and who had very seriously injured the animal. In a reclaiming petition to the Court for the owner, Hagart, after detailing everything very minutely, — explaining the multifarious ways in which a horse might be injured by the rider, and pointing out the treatment which ought to be adopted, thought it advisable to end with a flourish, and either havuig taken up the notion, that the following well-known line was quite in point, or perhaps having been persuaded by some wag that it was, he concluded as follows : — Quadrupedaute putrem sonitu quatit ungula campum, May it therefore please your Lordships to alter the inter- locutor under review, &c. * Otho had been several years at Leyden studying civil law. t Lords Balmuto and Bannatyne. — -The former certainly used to COURT OF SESSION GARLAND. 129 And Hermand, as fierce as a tyger offended, Is muttering his curses, not loudly but deep : There are all the fee'd la'wyers most anxiously waiting, Some ready to prose, and some ready for prating ; While some for delay are holdly debating. Lamenting a cause thro' their fingers should creep. 5 But meeter for thee far with Thomas M'Grugar,* Thy heart's dearest friend, in condolence to sigh. And to some idle question, in words sweet as sugar. To bandy soft answers and gentle replies. Far fitter, I ween than for gowns idly hoping, With the Corsican Fairy f your way darkly groping, To spend the dull hours in John Dowie's,| ale toping, Regal'd with salt herring and hot penny pyes. " bellow " at times tremendously, but chiefly when some youthful advocate appeared before him. He seemed delighted to astonish, and usually succeeded. The latter now and then appeared to dose, but he was usually very attentive to what was said, and, unlike Balmuto, always read his papers. * Thomas M'Grugar was a son of Mr. Thomas M'Grugar, merchant, Edinburgh, admitted advocate 28th February 1786. — ^He was a worthy man, — had some little business, — and was remarkable for a soft manner of speaking. He published a supplemental volume to Kames and Woodhouselee' s Dictionary of Decisions. t Geo. Sandy, Esq., whose bulky form presented a somewhat strong contrast to the tiny dwarf, who, under the appellation of the Corsican Fairy, visited all the principal towns in Great Britain. J Johnny Dowie's Tavern was a well-known place of resort for thirsty persons at the commencement of the present century. This house of call, long since removed, was the ordinary resort of a great proportion of the Members of the College of Justice at the period this Parody was written. The Judges had .long ceased to patronize the ale-house; but many members of the bar, and most of the agents, continued to carouse there, as their pre- decessors had done before them. Dowie himself, of whom there is a portrait in the Scots Magazine, amassed wealth, and died rich. I 130 COUET OP SESSION OAKLAND. XXX. PAEODY ON GKAY'S CELEBBATED ELEGY IN A COUNTRY CHUKCH-YAED. " Thou, that with ale, or viler liquors, " Didst inspire Withers, Prynne, and Vickars, . " And foro'd them, tho' it was ia spite " Of nature and their stars, to write ; " Assist me but this once I 'mplore, " And I wiU trouble thee no more." Hvdihras, Part \at, Canto \8t, JAne 645. From a copy privately printed at Edinburgh, 1814, 12mo, Written by the late CoUn Maclaurin, Esquire, advocate,, a son of Lord Dreghom. The author was subject to fits of insanity, which latterly ITeeame so frequent and violent as to make it necessary to place him under restraint. One of his last public exhibitions was sufficiently alarming to the party concerned, although somewhat amusing to the spectators. CoUn, about two o'clock in a fine September day, was sauntering along Princes Street, attired ia a great coat, which served as a sur- tout. This garment was buttoned below; but the breast was open, and in the left side thereof was placed a goodly assortment of apples, in his right hand was a,, large carving knife, which, with a flourish ever and anon, he dashed into the left side of his great co^t, and extracted therefrom an a^ple, which he devoured : — He had just reached the termination of Hanover Street, when Mr Munro of Livingstone, a stout athletic man, was turning the comer. Struck by the singular apparition, he could not help snuling, when unfortunately Colin observed him, and enraged at what he sup- posed a deliberate insult, made a pass at >n"Tn with the knife, — off set the gentleman, and Colin in pursuit swearing vengeance — the spectators made way for these extraordinary racers, and it was not until Mr Munro reached the eastern exteemity of Princes Street that he bethought himself that a shop might afibrd a friendly shelter. He accordingly rushed into the first one that came in his way, and closing the door, effectually secured himself from the threatened assault of his eccentric assailant. Maclaurin was in his sane moments a well-informed man. He died many years since. COUET OF SESSION GARLAND. 131 The bell now toUs, soon after dawn of day, Tke lawyer herd wind slowly up the street, The macer court-ward plods his weary way. Anxious, in haste, each learned judge to meet. And soon the bustling scene delights the sight. In yonder gorgeous and stupendous hall, WhUe eager macers call, with all their might, The busy lawyers from each judge's roll. Ere long from yonder velvet-mantled chair, The angry judge does to the bar complain Of counsel who, by ways and means unfair. Molest his potent and judicial reign, Beneath yon fretted roof that rafters shade, Where lie huge deeds in many mouldering heads, Each, in its narrow cell, fer too long laid, - Many a dusty process often sleeps.* The dreadful call of macer, like a horn. The agent, tottering from some humble shed, The lawyer's clarion, like the cock's, at mom. No more shall rouse them from their lowly bed. For them no more the agent's lamp shall bum, Or busy clerk oft ply his evening care. No counsel run to hail their quick return. Or long their client's envied fees to share. Oft did the harvest to their wishes yield. And knotty points their stubborn souls oft broke. How keenly did they, then, their clients shield ! How bow'd the laws beneath their sturdy stroke ! Let not derision mock their useful toils, Forensic broils, and origin obscure, * An action is said to be asleep if not called in Court for year and day. 132 COURT OF SESSION GARLAND. Nor judges hear, with a disdainful smile, The short and simple causes of the poor. The boast of sov'reignty, the rod of power, And all the sway that judges ever have. Await alike the inevitable hour When all must yield to some designing knave. Nor you, ye vain, impute to such the fault, If mem'ry o'er his deeds no trophies raise. Where, thro' the long drawn hall and fretted vault, The weU-fee'd lawyer swells his note of praise. Can counsel's loud and animated voice. Back to that mansion call the sleeping cause ; Without an order make such process rise. Or flatt'ry soothe the duU cold ear of laws 1 Perhaps in some neglected spot is laid A cause once pregnant with celestial fire. Such as the wily Corbet * might have pled. Or waked to extacy Scott's living lyre. * The epithet " Wily," which the author has appUed to Mr. Corbet is not very appropriate, for he had not, at least in his latter days, the sUghtest claim to such an appellation. He was a bold and sarcastic pleader at an early period, as the foUowing anecdote sufficiently demdhstrates. Lord President Campbell, after the fashion of those times, was somewhat addicted to browbeating young counsel; and as bearding a Judge is not a likely way to rise in favour, his Lordship generally got it aU his own way. Upon one occasion, however, he caught a tartar. His Lordship had what are termed Uttle pig's eyes, and his voice was thin and weak. Corbet had been pleading before the Inner House, and, as usual, Ijie Presi- dent commenced his attack, when his intended victim thus addressed him : " My Lord, it is not for me to enter into any altercation with " yow Lordship, for no one knows better than I do the great difPer- " ence between us ; you occupy the highest place on the Bench, and " I the lowest at the Bar ; and then, my Lord, I have not your " Lordship's voice of thunder, — I have not your Lordship's rolling " eye of commapd."' COURT OF SESSION GARLAND. 133 For knowledge to their eyes her ample page, Rich with the spoils of time, did oft enrol ; No penury repress'd their noble rage, Nor froze the genial current of their soul. Full many a deed, amid such bustling scene, The clerk's unfathom'd and dark cells oft bear ; Full many a process lies too long unseen, Neglected by the judges and the bar. Some village lawyer, that, with dauntless breast. The little tyrant of his fields withstood. May have a mute and glorious process rest, Tho' great his wrongs, and tho' his cause be good. Th' applause of list'ning senates to command. The threats of power and ruin to despise. To scatter justice o'er a smiling land. And read its history in a nation's eyes, Their lot inclined. Nor circumscrib'd alone Their growing talents, but their crimes confin'd ; Forbade to wade through discord widely sown, And shut the gates of justice on mankind. The struggling pangs of conscious truth to hide. To quench the blushes of ingenuous shame. Or heap the shrine of luxury and pride, With incense kindled at some holy flame. Far from the bustling crowd's ignoble strife. Their humble wishes never learned to stray ; Along the rough litigious vale of life They kept the noisy tenor of their way. Their client's fame from insult to protect. Some frail Memorial they would often try. With uncouth prose and shapeless language deck'd, T' implore the passing tribute of a sigh. 134 COURT OP SESSION GARLAND. For who to careless folly e'er a prey, Their legal rights unguarded have resign'd, Given up a cause as clear as the noon-day, Nor cast a longing ling'ring look behind. On some dear cause each client oft relies j Some pious tears, when lost, it oft requires : EVn from the bar the voice of justice cries ; EVn lawyers weep when such a cause expires. For thee, who mindfiil of each agent's deeds. Dost in these lines their artful ways relate ; If chance, or lonely contemplation leads Some kindred spirit to enquire thy fate ; Haply some hoary headed sage may say, — Oft have we seen him, at the peep of dawn. Brushing, with hasty steps, the dews away. To meet the judges, at the court in town. There, at the foot of some frequented bench In th' Outer-House, and to the side bar nigh. Molested by the agents' filthy stench. He'd pore on books with many a piteous sigh.* In yonder hall, now smiling as in scorn, Mutt'ring his wayward fancies, he would rove : Now droc^ing, woefiil, wan, like one forlorn. Or craz'd with care, or cross'd in hopeless love. * Mr. MliaTmn had very fair prospects at the time he entered the Faculty of Advocates, and he made — it is said — one or two very good appearances. His unfortunate malady, which came on at an early period of hfe, effectually prevented his rising at the Bar. The description of himself in the ensuing stanza is pretty accurate, excepting that he was (at least at the time he wrote it) very unlike one " cross'd in hopeless love." • COURT OF SESSION GARLAND. 135 One morn I miss'd him in th' accustomed hall, Upon the boards, and near his favourite seat ; Another came, and answered to the roll : Nor at the bar nor in the court he sate. The next, with dirges due, in sad array. Slow through the church-way path we saw him borne : Approach and read, for thou cans't read the lay Grav'd on his stone, beneath yon aged thorn. Epitaph. Here rests his head upon the lap of earth, A youth to Business and to Law well known ; Fair Science frown'd not on his humble birth, And Litigation nmrked him as her own. Large was his bounty, and his soul sincere. Heaven did a recompense as largely send : He gave to Mis'ry (all he had), a tear ; He gain'd from Heav'n, ('twas all he wished), a friend. No further seek his merits to disclose. Nor draw his frailties from their dread abode ; (There they, like many a lawyer's, now repose) The bosom of his Father and Ijis God. Colin M'Laurin.* Colintmm, 12