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Significant Scots
Robert Hog |
HOG, (SIR)ROBERT, lord Harcarse, a
judge and statesman, was born in Berwickshire about the year 1635. He
was the son of William Hog of Bogend, an advocate of respectable
reputation, to whom is attributed the merit of having prepared some
useful legal works, which have unfortunately not been given to the
public. The subject of this memoir passed as an advocate in June 1661,
and continued in the enjoyment of a lucrative and successful practice,
till a breach between Nisbet of Dirleton, and the powerful and
vindictive Hatton, opened for him a situation on the bench on the
resignation of that judge in 1677; being marked out by the government as
a useful instrument, the appointment was accompanied with the honours of
knighthood from Charles the Second. At this period the judges of the
Scottish courts, like ministerial officers, held their situations by the
frail tenure of court favour, and were the servants, not of the laws,
but of the king. It was the good fortune of Harcarse to be, in the
earlier part of his career, particularly favoured by the ruling powers;
and on the 18th November, 1678, we accordingly find Sir John Lockhart of
Castlehill summarily dismissed from the bench of the court of justiciary,
and Harcarse appointed to fill his place. At this period he represented
the county of Berwick in the Scottish parliament, an election which,
from the journals of the house, we find to have been disputed, and
finally decided in his favour. A supreme judge of the civil and criminal
tribunals, and a member of the legislative body, Harcarse must have had
difficult and dangerous duties to perform. The times were a labyrinth
full of snares in which the most wary went astray: few of those who
experienced the sunshine of royal favour, passed with credit before the
public eye, and none were blameless. Among the many deeds of that bloody
reign, which mankind might well wish to cover with a veil of eternal
oblivion, was one daring and unsuccessful attempt, with regard to which,
the conduct of Harcarse, in such an age and in such a situation, had he
been known for nothing else, is worthy of being commemorated. In 1681,
the privy council had called on Sir George M’Kenzie, as lord advocate,
to commence a prosecution for treason and perjury against the earl of
Argyle, for his celebrated explanation of his understanding of the
contradictions of the test. To the eternal disgrace of that eminent man,
he brought with him to the prosecution those high powers of argument and
eloquence with which he had so frequently dignified many a better cause.
The relevancy of the indictment was the ground on which the unfortunate
earl and his counsel, Sir George Lockhart, placed their whole reliance,
but they leaned on a broken reed. In a midnight conclave,
held it would appear after the minds of most of the judges were
sufficiently fatigued by the effect of a long day of labour, the full
depth of iniquity was allowed to the crime "of interpreting the king’s
statutes other than the statute bears, and to the intent and effect that
they were made for, and as the makers of them understood." Queensberry,
who presided as justice general, having himself been obliged to
accompany the oath with a qualification, remained neuter, and to oppose
the insult on sense and justice, was left to Harcarse and Collington, a
veteran cavalier. In order to do the business with certainty, and
prevent his majesty’s interest from being sacrificed to opposition so
unusual and captious, Nairn, an infirm and superannuated judge, was
dragged from his bed at dead of night, and the feeble frame of the old
man yielding to the desire of sleep while the clerk read to him a
summary of the proceedings, he was roused from his slumber, and by his
vote the relevancy of the indictment was carried by a majority of one.
The course pursued by lord Harcarse in this trial escaped the vengeance
of government at the time, but his conduct was held in remembrance for a
future opportunity. In the year 1688, a question came before the court
of session, in which the matter at issue was, whether a tutory, named by
the late marquis of Montrose, should subsist after the death of one of
the tutors, who had been named, in the language of the Scottish law, as
a "sine qua non." In a matter generally left to the friends of the
pupil, the unusual measure of the instance of the lord advocate
was adopted by government, for the purpose of having the pupil educated
in the Roman catholic faith. Wauchope lord Edmonstone and Harcarse voted
for the continuance of the trust in the remaining tutors, and on a
letter from the king, intimating to the court that, "for reasons best
known to himself," it was his royal will and pleasure that they should
cease to act as judges, both were removed from the bench,
"notwithstanding," says Fountainhall, with some apparent astonishment,
"that Edmonston was brother to Wauchop of Nidrie, a papist." The
doctrine of the law, previously vaccilating, has since this decision
been considered as properly fixed, according to the votes of the
majority; but an opposition to the will of government in such a matter
can be attributed to no other motives but such as are purely
conscientious. Other opinions on government and prerogative, maintained
in a private conference with some of the leaders of the ministry, are
alleged to have contributed to this measure; but these were never
divulged. At the period of his downfall, a public attack was made on the
character of lord Harcarse, on the ground of improper judicial
interference in favour of his son-in-law, Aytoun of Inchdarnie, by an
unsuccessful litigant. These animadversions are contained in a very
curious pamphlet, entitled "Oppression under colour of Law; or, my Lord
Harcarse his new Practicks: as a way-marke for peaceable subjects to
beware of playing with a hot-spirited lord of Session, so far as is
possible when Arbitrary Government is in the Dominion," by Robert
Pittilloch, advocate, London, 1689. [Re-edited by Mr Maidment, Advocate,
in 1827.] The injured party is loud in accusation; and certainly if all
the facts in his long confused legal narrative be true, he had reason to
be discontented. He mentions one rather striking circumstance, that
while the case was being debated at the side bar of the lord ordinary,
previous to its coming before the other judges, "my lord Harcarse
compeared in his purple gown, and debated the case as Inchdarnie’s
advocate;" a rather startling fact to those who are acquainted with the
comparatively pure course of modern justice, and which serves with many
others to show the fatal influence of private feeling on our earlier
judges, by whom an opportunity of turning judicial influence towards
family aggrandizement, seems always to have been considered a gift from
providence not to be rashly despised. After the Revolution, the path of
honour and wealth was again opened to lord Harcarse, but he declined the
high stations proffered to him; and the death of a favourite and
accomplished daughter, joined to a disgust at the machinations of the
court, prompted by his misfortunes, seems to have worked on a feeble
frame, and disposed him to spend the remainder of his days in
retirement. He died in the year 1700, in the 65th year of his age,
leaving behind him a collection of decisions from 1681 to 1692,
published in 1757, in the form of a dictionary, a useful and well
arranged compilation. The pamphlet of
the unsuccessful litigant,
previously alluded to, though dictated by personal and party spleen, has
certainly been sufficient somewhat to tinge the judicial integritv of
lord Harcarse; but those who had good reason to know his qualities have
maintained, that " both in his public and private capacity, he was
spoken of by all parties with honour, as a person of great knowledge and
probity;" [Memoir prefixed to his Decisions.] it would indeed be hard to
decide how far the boasted virtues of any age might stand the test of
the opinion of some more advanced and pure stage of society, did we not
admit that in a corrupt period, the person who is less vicious than his
contemporaries is a man of virtue and probity; hence one who was a
profound observer of human nature, an accurate calculator of historical
evidence, and intimately acquainted with the state of the times, has
pronounced Harcarse to have been "a learned and upright judge." [Laing’s
Hist. of Scot. iv. 123.] Some unknown poet has penned a
tribute to his memory, of which, as it displays more elegance of
versification and propriety of sentiment than are generally to be
discovered in such productions, we beg to extract a portion.
"The good, the godly, generous,
and kind
The best companion, father,
husband, friend;
The stoutest patron to maintain a
cause,
The justest judge to square it by
the laws;
Whom neither force nor flattery
could incline
To swerve from equity’s eternal
line;
Who, in the face of tyranny could
own,
He would his conscience keep,
though lose his gown;
Who, in his private and retired
state
As useful was, as formerly when
great,
Because his square and firmly
tempered soul,
Round whirling fortune’s axis
could not roll;
Nor, by the force of prejudice or
pride,
Be bent his kindness to forego or
bide,
But still in equal temper, still
the same,
Esteeming good men, and esteemed
by them;
A rare example and encouragement
Of virtue with an aged life, all
spent
Without a stain, still flourishing
and green,
In pious acts, more to be felt
than seen."
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