Litigiousness of the
Scots. Sir Daniel Macnee and jury-trial. Scottish judges, Patrick
Robertson, Cullen, Neaves, Rutherford Clark.
The natural unreclaimed
Scot is apt to be litigious. He likes to have a ‘ ganging plea,’
although the matter in dispute may not be worth contention. He does not
care to be beaten by a neighbour, even in a trifle, and will willingly
spend and be spent to secure what in the end is but a barren victory.
This liking for law can be traced far back in history. We see it in full
force during the lifetime of Sir David Lyndsay, who satirised it and the
ecclesiastical courts that encouraged it. He recounts how when the
paupers mare was drowned by his neighbour, the poor man at once ran off,
to the f consistory to! lodge his complaint, and there he ‘happinit
amang a greidie menzie ’:
Thay gave me first ane
thing thay call citandum;
Within aucht days, I gat hot lybellandum;
Within ane moneth, I gat ad opponcndum;
In half ane yeir, I gat intcrloquendum.
But, or thay cam half gate to concludendum,
The fiend ane plack was left for to defend him.
For sentence silver, thay cryit at the last.
Of pronunciandum, thay made me wonder faine;
But, I gat never ray gude gray mear againe.
The same national
tendency has survived down to our own times. It is excellently
pourtrayed by Scott in several of the Waver-ley Novels. Dandie Dinmont,
for instance, having won the ‘ grand plea about the grazing of the
Langtae-head,’ was keen to have another legal tussle with his neighbour,
Jock o’ Dawston Cleuch, about a wretched bit of land that might ‘feed a
hog or aiblins twa in a good year ’; not that he valued the land, but he
wanted ‘justice,’ and could ill bear to be overridden, even in regard,
to what was in itself quite worthless. The phraseology of the law courts
came glibly to the tongues of men who, like Bartoline Saddletree, picked
it up from attendance in the Parliament House, but had only an imperfect
notion of what it meant. In some cases, such as that of Poor Peter
Peebles, loss of wits and fortune, together with a parrot-like facility
in repeating law terms, was all the outcome of years of litigation.
Burns, too, has admirably indicated the litigious quarrels of his
countrymen and a thoroughly national mode of composing them when the
disputants can be induced to adopt it.
When neebors anger at a
plea, .
An’ just as wud as wud can be,
How easy can the barley-brie
Cement the quarrel!
It’s aye the cheapest lawyer’s fee,
To taste the barrel.
From the number of
writers, solicitors, and advocates who still every year enter the legal
profession, one may infer that this national peculiarity shows no marked
sign of abatement. The- institution of local courts of first instance,
all over the country, has enabled the Scot to indulge in the luxury of
law, without the trouble and expense of going up to Edinburgh. He can
bring his case before the Sheriff-Substitute, and appeal from his
decision to that of the Sheriff-Principal. If an adverse judgment from
both of these officials has not damped his enthusiasm or emptied his
pocket, he has still the Court of Session in the Scottish capital to
fall back on, and can there appeal to the Inner House; and, finally, if
any fighting power should still be left in him, he may carry his case to
the House of Lords. It is obvious that the legal system of the country
has been admirably arranged for the gratification of his litigious
propensities.
That admirable story-teller, Sir Daniel Mac-nee, President of the Royal
Scottish Academy, used to delight his friends with dramatic pictures of
his experiences of law-courts and other scenes of Scottish life. It is
matter for infinite regret that his stories were never written down. I
used frequently to be privileged to hear him, and may try to give from
recollection a mere outline of one of his favourite narratives which had
reference to legal matters. He had been engaged as a juryman in a trial,
and after a long day in court had finished his duties and come back
rather tired to his hotel. He there met an old acquaintance, a Western
laird, who spoke with a strong Highland accent, and with whom he had the
following conversation :
‘Ah, Mr. Macnee (it was before the painter received his knighthood), I’m
glad to see you again. But you look very weary; are you well enough?’
‘Oh yes, thank you, I am quite well, but somewhat tired after a long day
in the jury-court.’
‘A juryman! Mr. Macnee, were you a juryman? Well now, I hope you had
some personal satisfaction out of the case.’
‘I really don’t know what you mean. I had the satisfaction of serving my
turn and doing my duty; and I hope I am not likely to be called again
for some time to come.’
‘Of course, of course, you would be doing your duty, whatever. But did
you have no personal satisfaction in your verdict?’
‘I am entirely at a loss to understand what you can mean. I gave the
verdict which seemed to me just, and according to the evidence.’
‘No doubt, no doubt, Mr. Macnee, you would indeed do that. But I’ll
explain by giving you an account of a case that once happened to
myself,’ and he proceeded to recount a narrative worthy of the days ‘
when wretches hung that jurymen might dine.’ ‘ Well, you see, there was
a man in the village near my place and his house was broken into and a
lot of valuable things were stolen from it. The police were on the spot
next morning, but for a time they could get no clue at all. They found
in the end that the last man seen at the house was a baker in the
village, and their suspicions began to fall on him. Well this baker was
a notorious radical, and he was corrupting the village with his radical
notions and theories. And I had determined, if I could manage it anyhow,
to get him away. So I was not sorry to hear that the police were looking
up the baker and his doings. At last, as they could get nobody else to
suspect, they arrested him, and after a while a day was appointed for
his trial. A jury was summoned, and I was one of the jury; and being the
chief man in the place, I was chosen as foreman. Well, the case went to
trial, and we heard all the evidence the police could scrape together,
and the jury retired to consider their verdict. When we were all met, I
said to them, “Well, gentlemen, what do you think of the case?” And they
answered to a man, “O the baker’s as innocent as any of us.” So I looked
amazed and said, “ What’s that you say, gentlemen? Innocent! I really am
astonished to hear you say that. Just let us go over the evidence.” So I
went over all the facts and inferences, bit by bit, and showed how they
all made for the prisoner’s guilt.
I argued down every objection, and when they were all silenced and
convinced, we marched back into the court with a unanimous verdict of
“guilty as libelled.” You should have seen the face of the judge, but
still more, you should have seen the face of the baker. But there was
the verdict, and so the judge passed sentence of imprisonment on the
baker, and we have never seen him more in the village. Now, Mr. Macnee,
that’s what I mean by personal satisfaction!’
The Scottish judges of the type of Her-mand, Braxfield, Eskgrove and
«others, so vividly pictured by Lord Cockburn, and of whom so many
anecdotes have been recorded, have long passed away. One of the latest
of them was Patrick (or as he was familiarly called, Peter) Robertson,
of whose wit and humour many reminiscences have been preserved. He was
noted for his obesity which occasioned the soubriquet applied to him by
Scott. According to the well-known story, Robertson, while still an
advocate, was one day the centre of a group in the Parliament House
which he was amusing with his drollery when Scott was seen approaching.
‘Hush, boys,’ said he, ‘here comes old Peveril—I see his peak,’ alluding
to the novelist’s remarkably high skull. Scott, coming up in the midst
of the general laugh which followed, asked Lockhart what was the joke.
When Robertson’s personal remark was repeated to him, Scott, with a look
at the advocate’s rotund figure, retorted with another personality,
quietly remarking, ‘Ay, ay, my man, as weel Peveril o’ the Peak ony day
as Peter o’ the Paunch.’ In his younger days Robertson was travelling
for a stage or two on the coach from Inverness to Perth, when a number
of ministers were his fellow-passengers, bound for the General Assembly
at Edinburgh. He engaged in conversation with them, and led them to
believe that he was also a clergyman from the extreme north of Scotland.
When they reached the point at which he meant to quit the coach there
was a halt for breakfast, and Robertson was asked to say grace. He began
with a word or two of Gaelic, but as his acquaintance with that language
was but slender, he poured forth a torrent of gibberish pronounced
through his nose with an occasional Gaelic word interjected. The
ministers listened with praiseworthy decorum, uncertain what particular
dialect of Gaelic it might be, for it was one with which none of them
had any acquaintance. But while Robertson still continued his nasal
monologue the coachman’s horn blew, and the clerical guests had to hurry
breakfastless back to their seats.
In the early years of last century Gaelic was frequently heard in the
Court of Session, as Highland witnesses were often ignorant of English,
and their evidence had to be translated by interpreters kept for the
purpose. Sometimes the ignorance of English was more assumed than real.
There is a story told of Lord Cullen, long remembered for his brilliant
feats of mimicry, who had a case in court where a Highland witness was
evidently ‘ hedging ’ and prevaricating. The judge at last lost his
patience and asked the Gaelic expert, ‘ Mr. Interpreter, will you
inquire of the witness whether he saw the thing or did not see it, if
his language is capable of so fine a distinction.’
Another witness got the better of his crossquestioner in a simple way.
The question in dispute turned upon the identity of a particular box,
and this witness was called to prove that the nails in the box had been
made by him. The advocate for the other side ridiculed the idea that any
man could recognise his own made nails, and badgered the man into
desperation. The poor fellow at last leant across the witness-box and
asked his tormentor if he would allow him to look at a sheet of paper
lying in front of the counsel, who had been making some jottings on it.
Having got the paper into his hands, the man turned to the advocate and
asked, ‘Is that your hand o’ vrite?’ ‘Yes, it is,’ was the reply. ‘But
hoo can you prove it’s yours? Could you swear to it anywhere?’ ‘Of
course I could.’ ‘Weel, then, if you can swear to your hand o’ vrite,
hoo the deevil should I no’ swear to my ain nails?’
One of the last of the old race of Scottish judges was Lord Neaves, an
excellent lawyer and accomplished scholar, with so much humour, wit and
bonhommie that he generally became the centre of any company where he
might be. One of his favourite diversions was to write songs, which he
sang at convivial gatherings, such as the Royal Society Club in
Edinburgh. Many of these appeared first in print among the pages of
Blackwoods Magazine, to which he was for many years a valued
contributor, and he collected them into a little volume entitled Songs
and Verses, Social and Scientific, by an Old Contributor to ‘Maga' Some
of these were inimitably clever, and as sung or chanted by him in his
cracked, unmusical voice, with appropriate gesticulations and
modulations, they were irresistibly droll. Some of the scientific
ditties, dashed off in the intervals of work in court, and sung the same
evening at the club, were brimful of fun and wit, hitting off points in
theory or in dispute with great acumen. Among these may be mentioned
‘The Origin of Species,’ a versified account of Darwin’s views; ‘Stuart
Mill on Mind and Matter’; and ‘The Origin of Language.’ Some of the
social ditties were likewise delightful, such as ‘I’m very fond of
water,’ ‘The Permissive Bill,’ ‘Let us all be unhappy on Sunday ’ (which
has already been cited), and the ‘Sheriffs life at sea.’ A verse of one
or two of these may be quoted here.
Pray what is this
Permissive Bill
That some folks rave about?
I can’t with all my pains and skill
Its meaning quite make out.
‘O! it’s a little simple Bill
That seeks to pass incog.
To permit me—to prevent you—
From having a glass of grog! ’
When appointed ' Sheriff
of Orkney and Shetland, N eaves had at stated times to proceed by
steamboat from Granton to these northern isles, and in one of the songs
above enumerated he gives a humorous account of his experiences, which
shows that he was not always a good sailor.
The zephyr soon becomes a
gale,
And the straining vessel groans, boys;
And the Sheriffs face grows deadly pale
As he thinks of Davy Jones, boys.
Thinking here,
Sinking there,
Wearily, drearily,
Shakingly, quakingly;
Not from fear or sickness free
Is the Sheriff now at sea, my boys.
The late Lord Rutherford
Clark was an admirable example of the cultured lawyer, quiet and
restrained in manner, with a keen sense of humour, and a singular power
of witty criticism. One evening at the house of the late Professor
Sellar, he came up to me before dinner with a grave face, and remarked:
‘There is a geological problem that puzzles me a good deal; perhaps you
can throw some light on it. How does it come about that all the Scottish
hills with which I am acquainted are so much higher and steeper than
they used to be thirty years ago?’ Towards the end of his life I met him
on the shore at Cannes.
Being a keen golfer he had brought his clubs with him to the
Mediterranean, and enjoyed a daily game there. But the disease which
carried him off had already fastened its grip upon him, and I saw him no
more.
An advocate at the Scottish bar whom I remember was a somewhat pompous
orator, and went by the name of Demosthenes. He had written a book on
Bills, and in the course of pleading one day in Court he had occasion to
refer to his work. In a loud voice he called out to the attendant;
‘Bring me myself on Bills.’
Some of the Writers to the Signet and Solicitors of the old school still
survived in my younger days. One of these characters had some odd
peculiarities. He paid his clerks more liberal salaries than were common
with other lawyers, but he insisted on unremitting attention to duty. He
used to carry a thermometer in his pocket, and from time to time would
go downstairs to the room in which the clerks worked. If he found one of
them off his stool, he would clap the thermometer upon it, and should
the mercury not rise a certain number of degrees, he inflicted a money
fine 011 the unfortunate occupant. But for the large salaries, he could
not have retained the men in his service, or gratified his propensity
for fines. Another venerable Writer to the Signet had a good library,
and on his shelves a fine series of the Scottish philosophers. He
insisted that if at any time a clerk should finish his task before
another piece of work was ready for him, he must come into the library
and take a book, so as not to be a moment idle. One of the staff
selected Hume’s Essays, but every time he put the book away in his desk
for further perusal, he found next morning that it had been removed and
replaced on the shelves. The old gentleman was an ardent Free Churchman,
and excluded Hume from the authors that his clerks might read. |
