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BY W. MORTIMER CLARK, M.A.,
Q.C.
IT has been said that the
national characteristics of a people are largely reflected in their
literature. It might be said with equal, or perhaps greater truth, that
these characteristics find their expression more perfectly in their laws
and system of judicial procedure. The English historian Froude, says,
"Turn where you will in the story of Scotland, weakness is nowhere;
power, energy, and will, are everywhere." This forceful national
disposition appears at the very outset of legal proceedings in Scotland.
In England, as with us, the person invoking the aid of the law, becomes
a "plaintiff" or suppliant. The Scot, on the other hand, goes for his
adversary vi et armis, and without an circumlocution, becomes the
"pursuer." He shows at once that he means business, and the defendant
knows what he may expect. Not only does he pursue the defendant by
issuing a summons, but the moment he issues his writ he rushes out
letters of inhibition prohibiting the unfortunate defendant from
contracting any obligation, or granting any deed, by which in any way,
any part of his lands might be alienated to the pursuer's prejudice.
This formidable process, more stringent than even the dreaded Roman
actio Pauliana, where some evidence was required of the debtor's
intention to disappoint his creditor by making away with his property,
he could issue without the previous consent of a judge. When the pursuer
succeeds in obtaining a decree in his favour, his further efforts to
obtain the fruits of his pursuit, are appropriately termed "diligence,"
indicating that he is the same persevering, diligent, forceful and
persistent pursuer as ever. There is no abatement in his activity and he
at once issues "Letters of Horning." In this dreaded writ he is termed
by Her Majesty, "Our Lovite," as expressing probably the sovereign's
regard for the diligence manifested by her active subject. No such
endearing terms are used to the defendant, but Her Majesty, at the
instigation of "Our Lovite," orders the messengers-at-arms, in the event
of the unfortunate debtor not at once paying up, "to denounce him our
rebel, put him to the horn, and use the whole order against him as
prescribed by law." The latter words left a good deal to be inferred by
the terrified imagination of the defendant. The former vigorous
procedure was for the messengers-at-arms to denounce the debtor at the
market places after blowing a horn, as a rebel, and give notice to the
treasury to seize all that he might ever have, or in the words of the
old writ, "to escheat and bring in all his goods and gear to our use for
his contempt." Promissory notes require the entry of no formal judgment
for their recovery, but only registration of the protest prior to the
issue of "diligence." The dread, therefore, of the appearance of "Our
Lovite," in the event of default with his Letters of Inhibition and of
Horning, makes a man think twice before putting his name on paper, and
renders commercial securities more valuable than with us. The
promptitude and severity of "diligence," did not, however, always render
men mindful of the terrors of being "put to the horn," or of the warning
of Scripture, "Be not one of them that are sureties for debts." An old
Scots' Act, still in force, proceeding on the recital that many men had
brought ruin on their wives and bairns by becoming cautioners or
sureties for others, provided that every obligation given by way of
security should, at the end of seven years become absolutely void, and
prohibited every waiver of the benefit of the act. The statute does not
require even to be pleaded so complete is the extinction of the
obligation. Possibly many wives and bairns would be thankful if such a
statute were in force in Canada. "Our Lovite," having run his adversary
to the earth by doing "diligence" on his property, nothing remained for
the debtor but to take refuge within the bounds or "girth" of the
sanctuary at Holy- rood, lest the "pursuer" should "do diligence" on his
person. There we leave him with the emissaries of the pursuer keeping
ward on him and ever ready to pounce on him in the event of his crossing
for a moment the line of safety. The Scots were very sensitive to libel
and slander, and in no department of their judicial activity was their
pertinacity more marked. We read that in 1579, "twa poets of Edinburgh
remarking some of the Earl of Morton's sinistrous dealing, did publish
the same to the people by a famous libel written against him ; and
Morton hearing of this, causit the men to be brought to Stirling, were
they were convict of slandering one of the King's councillors, and were
baith hangit. The names of the men were William Turnbull, school master
in Edinburgh, and William Scott, notar. They were baith weel beloved of
the common people." Truly these poets placed themselves in an evil
plight from the exercise of their powers of satirical versification and
were brought to a sudden and untimely end. The case of a Pole named John
Stercovious affords, however, an illustration of vindictive and
pertinacious pursuit of a libeller, which is perfectly unique. About the
year 1613, the unfortunate foreigner visited Scotland. He appeared in
the streets in the garb of his native country, and consequently became
the object of derision to the youth and common people. He was hooted at,
and so ill-treated, that he returned, greatly disgusted, to his own
land. He consoled himself for his wrongs by publishing a book called a
Legend of Reproaches, directed against the Scottish nation. The records
call it "ane infamous book against all estates of persons in this
Kingdom." King James hearing of this book, employed one Patrick Gordon,
a foreign agent, to prosecute John in the courts of Poland. So
effectively did he discharge his duty, that poor Stercovious was
beheaded for his libel. The prosecution cost Scotland 6,000 marks, and
considerable difficulty was experienced in those days in raising the
amount. The "diligence" was, however, complete.
In criminal cases justice
was administered with even greater rigour than in civil matters. The
judge seemed, in fact, to consider the prisoner, or, as he was called,
the pannel, to be prima facie guilty. The jurymen were selected by the
presiding judge from the list of assize. It was sometimes said that
those persons were always sworn in who had been on juries that had
returned convictions for the Crown. A burlesque of a criminal trial in
Scotland, entitled "The Justiciary Opera," believed to have been
prepared by Boswell, the biographer of Johnson and Cohn Maclaurin,
afterwards Lord Dreghon, holds up to ridicule the whole procedure.
Before the trial is really commenced the presiding judge addresses the
accused in an instructive and warning manner, and winds up as follows:
"Mercy were folly if
lavished on him;
Robbing and thieving the gallows shall check;
Our duty is plain—we'll proceed to condemn:
John, you shall presently hang by the neck.
The prisoner cheerily
replies to these encouraging words:
We're no guilty yet,
We're no guilty yet;
Although we're accused,
We're no guilty yet.
Afore ye condemn
Ye maun hear us a bit,
For tho' we're accused,
We're no guilty yet.
The clerk of the court
proceeds to read the indictments:
Whereas, by the laws of
this realm,
And o' ilka weel governed land,
To seize on anither man's gear
As the tangs ance a Hieland man fand;
And whether the thief ho be caught
In the fact, or be grippit out fang,
The law says expressly and wisely
That chiel by the thrapple shall hang.
And you, John Black there, the pannel,
Ye robbit, assaulted and a',
And sae gang till an assize, sir,
And underlie pains o' the law.
The prosecutor, witnesses
and counsel for the prisoner having discharged their various duties in a
similar style to ancient Scottish airs, the judge, to the tune of
"Merrily Danced the Quaker," sums up as follows:-
If ever a case before me
came
That I could judge most clearly,
This is a case I'll boldly name—
I've scrutinized it nearly;
To trace the truth through all its track
Nae witch requires or jugglers;
The witnesses are all a pack
Of drunkards and of smugglers.
* * * * * * *
That Black put Brown in
mortal fear,
The proof is clear—clarissima;
And that he robbed, though not quite clear,
Presumptio est fortissima.
* * * * * * *
The proof is strong; a
verdict bring,
Such honest men becoming;
I need not say one other thing,
And so I end my summing.
The jury, having become
convinced that the whole affair was nothing but "a towzle wi' a gauger,"
unanimously acquitted the prisoner, as became good Scotsmen in dealing
with any case in which that unpopular officer was concerned. The
indignation of the judge was complete, and he gives vent to his feelings
in the following verses :-
A plague on 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 to hang them up all;
But now they're acquitted—
Oh, how we're outwitted,
We've sat eighteen hours for nothing at all!
Chorus of the whole Bench:
Tol do rol, tel do rol, lol do rol, lol do rol! |
