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HERE is no class of men
which stand out more prominent in the reminiscences of the last hundred
years than that of our Scottish JUDGES. They form, in many instances, a
type or representative of the leading peculiarities of Scottish
life and manners. They are mixed up with all our affairs, social and
political. There are to be found in the annals of the Bench rich examples
of pure Scottish humour, the strongest peculiarity of Scottish
phraseology, acuteness of intellect, cutting wit, eccentricity of manners,
and abundant powers of conviviality. Their successors no longer furnish
the same anecdotes of oddity or of intemperance. The Courts of the
Scottish Parliament House, without lacking the learning or the law of
those who sat there sixty years ago, lack not the refinement and the
dignity that have long distinguished the Courts of Westminster Hall.
Stories still exist,
traditionary in society, amongst its older members, regarding Lords
Gardenstone, Monboddo, Hermand, Newton, Polkemmet, Braxfield, etc. But
many younger persons do not know them. It may be interesting to some of my
readers to devote a few pages to the subject, and to offer some judicial,
gleanings. [I have derived some information from a curious book," Kay’s
Portraits," 2 vols. The work is scarcely known in England, and is
becoming rare in Scotland. "Nothing can be more valuable in the way
of engraved portraits than these representations of the distinguished men
who adorned Edinburgh in the latter part of the eighteenth century."—Chambers.]
I have two anecdotes to
show that, both in social and judicial life, a remarkable change must have
taken place amongst the "fifteen." I am assured that the
following scene took place at the table of Lord Polkernmet, at a
dinner-party in his house. When the covers were removed, the dinner was
seen to consist of veal broth, a roast fillet of veal, veal cutlets, a
florentine (an excellent old Scottish dish composed of veal), a calf’s
head, calf’s foot jelly. The worthy judge could not help observing a
surprise on the countenance of his guests, and perhaps a simper on some;
so he broke out in explanation: "Ou ay, it’s a cauf; when we kill a
beast we just eat up ae side, and down the tither." The expressions
he used to describe his own judicial preparations for the bench
were very characteristic: "Ye see I first read a’ the pleadings,
and then, after lettin’ them wamble in my wame wi’ the toddy twa or
three days, I gie my ain interlocutor." For a moment suppose such
anecdotes to be told now of any of our high legal functionaries. Imagine
the feelings of surprise that would be called forth were the present
Justice-Clerk to adopt such imagery in describing the process of preparing
his legal judgment on a difficult case in his court!
In regard to the wit of the
Scottish Bar.—It is a subject which I do not pretend to illustrate. It
would require a volume for itself. One anecdote, however, I cannot resist,
and I record it as forming a striking example of the class of Scottish
humour which, with our dialect, has lost its distinctive characteristics.
John Clerk (afterwards a judge by the title of Lord Eldin) was arguing a
Scottish appeal case before the House of Lords. His client claimed the use
of a mill-stream by a prescriptive right. Mr Clerk spoke broad Scotch, and
argued that "the watter had rin that way for forty years.
Indeed naebody kenn’d how long, and why should his client now be
deprived of the waiter?" etc. The chancellor, much amused at the
pronunciation of the Scottish advocate, in a rather bantering tone asked
him, "Mr Clerk, do you spell water in Scotland with two t’s?"
Clerk, a little nettled at this hit at his national tongue, answered,
"Na, my Lord, we dinna spell watter (making the word as short as he
could) wi’ twa t’s, but we spell mainners (making the word as long as
he could) wi’ twa n’s."
John Clerk’s vernacular
version of the motto of the Celtic Club is highly characteristic of his
humour and his prejudice. He had a strong dislike to the whole Highland
race, and the motto assumed by the modem Celts, "Olim marte, nunc
arte," Clerk translated "Formerly robbers, now thieves."
Quite equal to Swift’s celebrated remark on William Ill.’s motto— Recepit,
non rapuit—" that the receiver was as bad as the thief."
Very dry and pithy too was Clerk’s legal opinion given to a
claimant of the Annandale peerage, who, when pressing the employment of
some obvious forgeries, was warned that if he persevered, nae doot he
might be a peer, but it would be a peer o’ anither tree!
The clever author of
"Peter’s Letters" gives an elaborate description of Clerk’s
character whilst at the Bar, and speaks of him as "the plainest, the
shrewdest, and the most sarcastic of men." Nor could he entirely
repress these peculiarities when raised to the Bench under the tide of
Lord Eldin.
His defence of a young
friend, who was an advocate, and had incurred the displeasure of the
Judges, has often been repeated. Mr Clerk had been called upon to offer
his apologies for disrespect, or implied disrespect, in his manner of
addressing the Bench. The advocate had given great offence by expressing
his "astonishment" at something which had emanated from
their Lordships, implying by it his disapproval. He got Lord Eldin, who
was connected with him, to make an apology for him. But Clerk could not
resist his humorous vein by very equivocally adding, "My client has
expressed his astonishment, my Lords, at what he had met with here; if my
young friend had known this court as long as I have, he would have been astonished
at nothing."
A kind Perthshire
correspondent has sent me a characteristic anecdote, which has strong
internal evidence of being genuine. When Clerk was raised to the Bench he
presented his credentials to the Court, and, according to custom, was
received by the presiding Judge----who, on this occasion, in a somewhat
sarcastic tone, referred to the delay which had taken place in his
reaching a position for which he had so long been qualified, and to which
he must have long aspired. He hinted at the long absence of the Whig party
from political power as the cause of this delay, which offended Clerk; and
he paid it off by intimating in his pithy and bitter tone, which he could
so well assume, that it was not of so much consequence—
"Because," as he said, "ye see, my Lord, I was not juist
sae sune doited as some o’ your Lordships."
The following account of
his conducting a case is also highly characteristic. Two individuals, the
one a mason, the other a carpenter, both residenters in West Portsburgh,
formed a co-partnery, and commenced building houses within the boundaries
of the burgh corporation. One of the partners was a freeman, the other
not. The corporation, considering its rights invaded by a non-freeman
exercising privileges only accorded to one of their body, brought an
action in the Court of Session against the interloper, and his partner as aiding and abetting. Mr John Clerk, then an
advocate, was engaged for the defendants. How the cause was decided
matters little. What was really curious in the affair was the naively
droll manner in which the advocate for the defence opened his pleading
before the Lord Ordinary. "My Lord," commenced John, in his
purest Doric, at the same time pushing up his spectacles to his brow and
hitching his gown over his shoulders, "I wad hae thought naething o’t
(the action), had hooses been a new invention, and my clients been caught
ouvertly impingin’ on the patent richts o’ the inventors!"
Of Lord Gardenstone (Francis Garden) I have many early personal
reminiscences, as his property of Johnstone was in the Howe of the
Mearns, not far from my early home. He was a man of energy, and promoted
improvements in the county with skill and practical sagacity. His
favourite scheme was to establish a flourishing town upon his property,
and he spared no pains or expense in promoting the importance of his
village of Laurencekirk. He built an excellent inn, to render it a stage for posting. He built and endowed an
Episcopal chapel
for the benefit of his English immigrants, in the vestry of which he
placed a most respectable library; and he encouraged manufacturers of all
kinds to settle in the place. Amongst others, as we have seen, came the
hatter who found only three hats in the kirk. His lordship was much taken
up with his hotel or inn, and for which he provided a large volume for
receiving the written contributions of travellers who frequented it. It was the landlady’s business to present this volume to the
guests, and ask them to write in it during the evenings whatever occurred
to their memory or their imagination. In the mornings it was a favourite amusement
of Lord Gardenstone to look it over. I recollect Sir Walter Scott being much taken with this contrivance,
and his asking me about it at Abbotsford.
His son said to him, "You should establish such a book, sir, at
Melrose"; upon which Sir W. replied, "No, Walter; I should
just have to see a great deal of abuse of myself." On his son
deprecating such a result, and on his observing my surprised look, he
answered, "Well, well, I should have to read a great deal of
foolish praise, which is much the same thing." An amusing account
is given of the cause of Lord Gardenstone withdrawing this volume
from the hotel, and of his determination to submit it no more to the
tender mercies of the passing traveller. As Professor Stuart of
Aberdeen was passing an evening at the inn, the volume .was handed to
him, and he wrote in it the following
lines, in the style of the prophecies of Thomas the Rhymer :—
"Frae sma’ beginnings Rome
of auld
Became a great imperial city;
‘Twas peopled first, as we are tauld,
By bankrupts, vagabonds, banditti.
Quoth Thamas, Then the day may
come,
When Laurencekirk shall equal Rome."
These lines so nettled Lord Gardenstone, that the
volume disappeared, and was never seen afterwards in the inn of
Laurencekirk. There is another lingering reminiscence which I retain
connected with the inn at Laurencekirk. The landlord, Mr Cream, was a man
well-known throughout all the country, and was distinguished, in his later
years, as one of the few men who continued to wear a pigtail. On
one occasion the late Lord Dunmore (grandfather or great-grandfather of
the present peer), who also still wore his queue, halted for a night at
Laurencekirk. On the host leaving the room, where he had come to take
orders for supper, Lord Dunmore turned to his valet and said,
"Johnston; do I look as like a fool in my pigtail as Billy Cream
does?" "Much about it, my lord," was the valet’s
imperturbable answer. "Then," said his lordship, "cut off
mine to-morrow morning when I dress."
Lord Gardenstone seemed to
have had two favourite tastes: he indulged in the love of pigs and the
love of snuff. He took a young pig as a pet, and it became quite tame, and
followed him about like a dog. At first the animal shared his bed, but
when, growing up to advanced swinehood, it became unfit for such
companionship, he had it to sleep in his room, in which he made a
comfortable couch for it of his own clothes. His snuff he kept not in a
box, but in a leathern waist-pocket made for the purpose. He took it in
enormous quantities, and used to say that if he had a dozen noses he would
feed them all. Lord Garden-stone died 1793.
Lord Monboddo (James
Burnet, Esq., of Monboddo) is another of the well-known members of the
Scottish Bench, who combined, with many eccentricities of opinion and
habits, great learning and a most amiable disposition. From his paternal
property being in the county of Kincardine, and Lord M. being a visitor at
my father’s house, and indeed a relation or clansman, I have many early
reminiscences of stories which I have heard of the learned judge. His
speculations regarding the origin of the human race have, in times past,
excited much interest and amusement. His theory was that man emerged from
a wild and savage condition, much resembling that of apes; that man had
then a tail like other animals, but which by progressive civilisation and
the constant habit of sitting, had
become obsolete. This theory produced many a joke from facetious and
superficial people, who had never read any of the arguments of the able
and elaborate work, by which the ingenious and learned author maintained
his theory. Lord Kames, a brother judge, had his joke on it. On some
occasion of their meeting, Lord Monboddo was for giving Lord Kames the
precedency. Lord K. declined, and drew back, saying, "By no means, my
lord; you must walk first, that I may see your tail." I
recollect Lord Monboddo’s coming to dine at Risque caused a great
excitement of interest and curiosity. I was in the nursery, too young to
take part in the investigations; but my elder brothers were on the alert
to watch his arrival, and get a glimpse of his tail. Lord M. was really a
learned man, read Greek and Latin authors—not as a mere exercise of
classical scholarship—but because he identified himself with their
philosophical opinions, and would have revived Greek customs and modes of
life. He used to give suppers after the manner of the ancients, and used
to astonish his guests by the ancient cookery of Spartan broth, and of mulsum.
He was an enthusiastic Platonist. On a visit to Oxford, he was
received with great respect by the scholars of the University, who were
much interested in meeting with one who had studied Plato as a pupil and
follower. In accordance with the old custom at learned universities, Lord
Monboddo was determined to address the Oxonians in Latin, which he spoke
with much readiness. But they could not stand the numerous slips in
prosody. Lord Monboddo shocked the ears of the men of Eton and of
Winchester by dreadful false quantities—verse-making being, in Scotland,
then quite neglected, and a matter little thought of by the learned
judge.
Lord Monboddo was
considered an able lawyer, and on many occasions exhibited a very clear
and correct judicial discernment of intricate cases. It was one of his
peculiarities that he never sat on the bench with his brother judges, but
always at the clerk’s table. Different reasons for this practice have
been given, but the simple fact seems to have been, that he was deaf, and
heard better at the lower seat. His mode of travelling was on horseback.
He scorned carriages, on the ground of its being unmanly to "sit in a
box drawn by brutes." When he went to London he rode the whole way.
At the same period, Mr Barclay of’ Ury (father of the well-known Captain
Barclay), when he represented Kincardineshire in Parliament, always walked
to London. He was a very powerful man, and could walk fifty miles a
day, his usual refreshment on the road being a bottle of port wine, poured
into a bowl, and drunk off at a draught. I have heard that George III. was
much interested at these performances, and said, "I ought to be proud
of my Scottish subjects, when my judges ride, and my Members of
Parliament walk, to the metropolis."
On one occasion of his
being in London, Lord Monboddo attended a trial in the Court of King’s
Bench. A cry was heard that the roof of the court-room was giving way,
upon which judges, lawyers, and people made a rush to get to the door.
Lord Monboddo viewed the scene from his corner with much composure. Being
deaf and short-sighted, he knew nothing of the cause of the tumult. The
alarm proved a false one; and on being asked why he had not bestirred
himself to escape like the rest, he coolly answered that he supposed it
was an annual ceremony, with which, as an alien to the English
laws, he had no concern, but which he considered it interesting to witness
as a remnant of antiquity! Lord Monboddo died 1799. Lord Rockville (the
Hon. Alexander Gordon, third son of the Earl of Aberdeen) was a judge
distinguished in his day by his ability and decorum. "He adorned the
bench by the dignified manliness of his appearance, and polished urbanity
of his manners." Like most lawyers of his time, he took his glass
freely, and a whimsical account which he gave, before he was advanced to
the bench, of his having fallen upon his face, after making too free with
the bottle, was commonly current at the time. Upon his appearing late at a
convivial club with a most rueful expression of countenance, and on being
asked what was the matter, he exclaimed with great solemnity,
"Gentlemen, I have just met with the most extraordinary adventure
that ever occurred to a human being. As I was walking along the
Grassmarket, all of a sudden the street rose up and struck me on the
face." He had, however, a more serious encounter with the
street after he was a judge. In 1792, his foot slipped as he was going to
the Parliament House; he broke his leg, was taken home, fevered, and died.
Lord Braxfield (Robert M’Queen
of Braxfield) was one of the judges of the old school, well known in his
day, and might be said to possess all the qualities united, by which the
class were remarkable. He spoke the broadest Scotch. He was a sound and
laborious lawyer. He was fond of a glass of good claret, and had a great
fund of good Scotch humour. He rose to the dignity of Justice-Clerk, and,
in consequence, presided at many important political criminal trials about
the year 1793-4, such as those of Muir, Palmer, Skirving, Margarot,
Gerrold, etc. He conducted these trials with much ability and great
firmness, occasionally, no doubt, with more appearance of severity and
personal prejudice than is usual with the judges who in later times are
called on to preside on similar occasions. The disturbed temper of the
times and the daring spirit of the political offenders seemed, he thought,
to call for a bold and fearless front on the part of the judge, and
Braxfield was the man to show it, both on the Bench and in common life. He
met, however, sometimes with a spirit as bold as his own from the
prisoners before him. When Skirving was on trial for sedition, he thought
Braxfleld was threatening him and by gesture endeavouring to intimidate
him; accordingly, he boldly addressed the Bench:— "It is altogether
unavailing for your Lordship to menace me, for I have long learnt not to
fear the face of man." I have observed that he adhered to the broadest
Scottish dialect. "Hae ye ony coonsel, man?" he said to
Maurice Margarot (who, I believe, was an Englishman). "No," was
the reply. "Div ye want to hae ony appinted?" "No,"
replied Margarot; "I only want an interpreter to make me
understand what your Lordship says." A prisoner, accused of stealing
some linen garments, was one day brought up for trial before the old
judge, but was acquitted because the prosecutor had charged him with
stealing shirts, whereas the articles stolen were found to be shifts—female
apparel. Braxfield indignantly remarked that the Crown Counsel should have
called them by the Scottish name of sarks, which applied to both
sexes.
Braxfield had much humour,
and enjoyed wit in others. He was immensely delighted at a reply by Dr M’Cubbin,
the minister of Bothwell. Braxfield, when Justice-Clerk, was dining at
Lord Douglas’s, and observed there was only port upon the table. In his
usual off-hand brusque manner, he demanded of the noble host if
"there was nae claret i’ the castle." "Yes," said
Lord Douglas; "but my butler tells me it is not good." "Let’s
pree’t," said Braxfield in his favourite dialect. A bottle was
produced, and declared by all present to be quite excellent. "Noo,
minister," said the old judge, addressing Dr M’Cubbin, who was
celebrated as a wit in his day, "as a fama clamosa has gone
forth against this wine, I propose that you absolve it,"—playing
upon the terms made use of in the Scottish Church Courts. "Ay, my
Lord," said the minister, "you are first-rate authority for a
case of civil or criminal law, but you do not quite understand our Church
Court practice. We never absolve till after three several
appearances." The wit and the condition of absolution were alike
relished by the judge. Lord Braxfield closed a long and useful life in
1799.
Of Lord Hermand we have
already had occasion to speak, as in fact his name has become in some
manner identified with that conviviality which marked almost as a
characteristic the Scottish Bench of his time. He gained, however, great
distinction as a judge, and was a capital lawyer. When at the bar, Lords
Newton and Hermand were great friends, and many were the convivial
meetings they enjoyed together. But Lord Hermand outlived all his old
last-century contemporaries, and formed with Lord Balgray what we may
consider the connecting links between the past and the present race of
Scottish lawyers.
Lord Kames was a keen
agricultural experimentalist, and in his Gentleman Farmer anticipated
many modem improvements. He was, however, occasionally too sanguine.
"John," said he one day to his old overseer, "I think we’ll
see the day when a man may carry out as much chemical manure in his
waistcoat pocket as will serve for a whole field." "Weel,"
rejoined the other, "I am of opinion that if your lordship were to
carry out the dung in your waistcoat pocket, ye might bring hame the crap
in your greatcoat pocket."
We could scarcely perhaps
offer a more marked difference between habits once tolerated on the
Bench and those which now distinguish the august seat of Senators of
Justice, than by quoting, from Kay’s Portraits, vol. ii., p. 278,
a sally of a Lord of Session of those days, which he played off, when
sitting as judge, upon a young friend whom he was determined to frighten.
"A young counsel was addressing him on some not very important point
that had arisen in the division of a common (or commonty, according to law
phraseology), when, having made some bold averment, the judge exclaimed,
‘That’s a lee, Jemmie.’ ‘My lord!’ ejaculated the amazed
barrister. ‘Ay, ay, Jemmie; I see by your face ye’re leein’.’ ‘Indeed,
my lord, I am not.’ ‘Dinna tell me that; it’s no’ in your memorial
(brief)—awa’ wi’ you’; and, overcome with astonishment and
vexation, the discomfited barrister left the Bar. The judge thereupon
chuckled with infinite delight; and beckoning to the clerk who attended on
the occasion, he said, ‘Are ye no’ Rabbie H‘s man?’ ‘Yes, my
lord.’ ‘Wasna Jemmie leein’?’ ‘Oh no, my lord.’ ‘Ye’re
quite sure?’ ‘Oh yes.’ ‘Then just write out what you want, and I’ll
sign it; my faith, but I made Jemmie stare.’ So the decision was
dictated by the clerk, and duly signed by the judge, who left the bench
highly diverted with the fright he had given his young friend." Such
scenes enacted in court now would astonish the present generation,
both of lawyers and of suitors.
We should not do justice to
our Scottish Reminiscences of judges and lawyers, if we omitted the once
celebrated Court of Session jeu d’esprit called the "Diamond
Beetle Case." This burlesque report of a judgment was written by
George Cranstoun, advocate, who afterwards sat in court as judge under the
title of Lord Corehouse. Cranstoun was one of the ablest lawyers of his
time; he was a prime scholar, and a man of most refined taste and clear
intellect. This humorous and clever production was printed in a former
edition of these Reminiscences, and in a very flattering notice of the
book which appeared in the North British Review, the reviewer—himself,
as is well known, a distinguished member of the Scottish Judicial Bench—remarks:
"We are glad that the whole of the ‘Diamond Beetle’ by Cranstoun
has been given; for nothing can be more graphic, spirited, and ludicrous,
than the characteristic speeches of the learned judges who deliver their
opinions in the case of defamation." As copies of this very clever
and jocose production are not now easily obtained, and as some of my
younger readers may not have seen it, I have reprinted it in this edition.
Considered in the light of a memorial of the Bench, as it was known to a
former generation, it is well worth preserving; for, as the editor of Kay’s
Portraits well observes, although it is a caricature, it is entirely
without rancour, or any feeling of a malevolent nature towards those whom
the author represents as giving judgment in the "Diamond Beetle"
case. And in no way could the involved phraseology of Lord Bannatyne, the
predilection for Latin quotation of Lord Meadowbank, the brisk manner of
Lord Hermand, the anti-Gallic feeling of Lord Craig, the broad dialect of
Lords Polkemmet and Balmuto, and the hesitating manner of Lord Methven, be
more admirably caricatured.
FULL COPY OF THE FINDING OF
THE COURT IN THE ONCE CELEBRATED "DIAMOND BEETLE CASE." [The
version I have given of this amusing burlesque was revised by the late Mr
Pagan, Cupar-Fife, and corrected from his own manuscript copy, which he
had procured from authentic sources about forty years ago.]
Speeches taken at
advising the Action of Defamation and Damages ALEXANDER
CUNNINGHAM, Jeweller in Edinburgh, against JAMES RUSSELL, Surgeon
there.
"THE LORD
PRESIDENT (SIR lLAY CAMPBELL).— Your Lordships have the petition of
Alexander Cunningham 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 distinct
interlocutor, on pages 29 and 30 of this petition:—‘Having considered
the Condescendence of the pursuer, Answers for the defender,’ and so on;
‘Finds, in respect that it is not alleged that the diamonds on the back
of the Diamond Beetle are real diamonds, or anything but shining spots,
such as are found on other Diamond Beetles, which likewise occur, though
in a smaller number, on a great number of other Beetles, somewhat
different from the Beetle libelled, and 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, which is
admitted to be a filthy troublesome Louse, even worse than the said Louse,
which is clearly different from the Louse libelled. But that 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 other Louse libelled; and the other Louse to the other
Beetle, which is the same with, or similar to, the Beetle which somewhat
resembles the Beetle libelled; assoilzies the defender, and finds expenses
due.’
"Say away, my Lords.
"LORD MEAD0WBANK,—This
is a very intricate and puzzling question, my Lord. 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 that there are two points for consideration. First, whether
the words libelled amount to a convicium against the Beetle; and 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 in the comparatio or comparison of the Scaraboeus
or Beetle with the Egyptian Pediculus or Louse. My first
doubt regards this point, but it is not at all founded on what the
defender alleges, that there is no such animal as an Egyptian Pediculus
or Louse in rerum natura; for though it does not actually exist,
it may possibly exist (if not in actio, yet in potentia—if
not in actuality, yet in potentiality or capacity); and whether its
existence be in esse vel posse, is the same thing to this question,
provided there be termini habiles for ascertaining what it would be
if it did exist. But my doubt is here:—How am I to discover what are the
essentia of any Louse, whether Egyptian or not? It is very easy to
describe its accidents as a naturalist would do—to say that it belongs
to the tribe of Aptera (or, that is, a yellow, little, 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 its differentia
are. Now, without these it is impossible to judge whether there is a convicium
or not; for, in a case of this kind, which
sequitur naturam delicti, we must take them meliori sensu, and
presume the comparatio to be in melioribus tantum. And here
I beg that parties, and the Bar in general—[interrupted by Lord Hermand:
Your Lordship should address yourself to the Chair}—I say, I beg
it may be understood that I do not rest my opinion on the ground that veritas
convicii excusant. I am clear that although this Beetle actually were
an Egyptian Louse, it would accord no relevant defence, provided the
calling it so were a convicium ; and there my doubt lies.
"With regard to the
second point, I am satisfied that the Scaraboeus or Beetle itself
has no persona standi in judicio; and therefore the pursuer cannot
insist in the name of the Scaraboeus, or for his behoof. If the
action lie at all, it must be at the instance of the pursuer himself, as
the verus dominus of the Scaraboeus, for being calumniated
through the convicium directed primarily against the animal
standing in that relation to him. Now, abstracting from the qualification
of an actual dominium, which is not alleged, I have great doubts
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 principle of
its actual transmission here; and that has not yet been pointed out.
"LORD HERMAND.—We
heard a little ago, my Lord, that there is a difficulty in this case; but
I have not been fortunate though, for my part, to find out where the
difficulty lies. Will any man presume to tell me that a Beetle is not a
Beetle, and 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 not; but
I suppose it’s like other Beetles, and that’s enough for me.
"But, my Lord, I know
the other reptile well. I have seen them, I have felt them, my Lord, 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 Lord, there’s more here than all that—a
great deal more. One could have thought the defender would 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]— but he adds the epithet Egyptian, and
I know well what he means by that epithet. He means, my Lord, a Louse that
has been fattened on the head of a Gipsy or Tinker, undisturbed by
the comb or nail, and unmolested in the enjoyment of its native filth. He
means a Louse grown to its full size, ten times larger and ten times more
abominable than those with which your Lordships and I are familiar. .
The petitioner asks redress for the injury so atrocious and so aggravated;
and, as far as my voice goes, he shall not ask it in vain.
"LORD CRAIG.—I am of
the opinion last delivered. It appears to me to be slanderous and
calumnious to compare a Diamond Beetle to the filthy and mischievous
animal libelled. By an Egyptian Louse I understand one which has been
formed on 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 for a time by the
French. I do not find that Turgot, or Condorcet, or the rest of the
economists, ever reckoned the combing of the head a species of productive
labour; and I conclude, therefore, that wherever French principles have
been propagated, Lice grow
to an immoderate size, especially in a warm climate like that of Egypt. I
shall only add, that we ought to be sensible of the blessings we enjoy
under a free and happy Constitution, where Lice and men live under the
restraint of equal laws the only equality that can exist in a
well-regulated state.
"LORD P0LKEMMET.—It
should be observed, my Lord, that what is called a Beetle is a reptile
very well known in this country. I have seen mony ane o’ them in
Drumshorlin Muir; it is a little black beastie, about the size of my thoom-nail.
The country-folks ca’ them Clocks; and I believe they ca’ them also
Maggy-wi’-the-mony-feet; but they are not the least like any Louse that
ever I saw; so that, in my opinion, though the defender may 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’s more Lice than Beetles in Fife. They
ca’ them Clocks there. What they ca’ a Beetle is a thing as lang as my
arm; thick at one end and sma’ at the other. I thought, when I read the
petition, that the Beetle or Bittle had been the thing that the women have
when they are washing towels or napery with—things for dadding them
with; and I see the petitioner is a jeweller till his trade; and I thought
he had ane o’ thae Beetles, and set it all round with diamonds; and I
thought it a foolish and extravagant idea; and I saw no resemblance it
could have to a Louse. But I find I was mistaken, my Lord; and I find it
only a Beetle-clock the petitioner has; but my opinion’s the same as it
was before. I say, my Lords, ‘am 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 not literally, but in a free and spirited
manner, according to the most approved principles of translation, ‘the
truth of 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
the calumny affords a relevant defence, and if it be likewise true that
the Diamond Beetle is really an Egyptian Louse, I am inclined to conclude
(though certainly the case is attended with difficulty) that the defender
ought to be assoilzied.—Refuse.
"LORD JUSTICE-CLERK
(RAE).—I am very well acquainted with the defender in this action, and
have respect for him, and esteem him likewise. I know him to be a skilful
and expert surgeon, and also a good man; and I would do a great deal to
serve him or to be of use to him, if l 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 likewise a great respect, because I knew his
father, who was a very respectable baker in Edinburgh, and supplied my
family with bread, and very good bread it was, and for which his accounts
were regularly discharged), it seems, 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 a
worse thing of that kind, with a view to render it despicable or
ridiculous, and the petitioner so likewise, as the proprietor or owner
thereof. It is said that this is a Louse in fact, and that the veritas
convicii excusat; and mention is
made of a decision in the case of Chalmers v. Douglas. I have always had 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 Douglas, lived in Fisherrow; and at that time there was
much intercourse between the genteel inhabitants of Fisherrow, and
Musselburgh, and Inveresk, and likewise Newbigging; and there were balls,
or dances, or assemblies every fortnight, or oftener, and also sometimes I
believe every week; and there were card-parties, assemblies once a
fortnight, or oftener; and the young people danced there also, and others
played at cards, and there were various refreshments, such as tea and
coffee, and butter and bread, and I believe, but I am not sure, porter and
negus, and likewise small beer. And it was at one of these assemblies that
Mrs Douglas called Mrs Chalmers very improper names. And Mrs Chalmers
brought an action of defamation before the Commissaries, and it came by
advocation into this Court, and your Lordships allowed a proof of the veritas
convicii, and it lasted a very long time, and in the end answered no
good purpose even to the defender herself, while it did much hurt to the
pursuer’s character. I am therefore for REFUSING such a proof in this
case, and I think the petitioner in this case and his Beetle have been
slandered, and the petition ought to be seen.
"LORD METHVEN.—If I
understand this—a—a-—a—interlocutor, it is not said that the —a----a—a—a—
Egyptian Lice are Beetles, but that
they may be, or— a—a—a—a—resemble Beetles. I am therefore for
sending the process to the Ordinary to ascertain the fact, as I think it
dEpends upon that whether there be —a—a—-a—--a— convicium
or not. I think also the petitioner should be ordained to—a—a—a—produce
his Beetle, and the defender an Egyptian Louse or Pediculus, and if
he has not one, that he should take a diligence—a—a—a—against
havers to recover Lice of various kinds; and these may be remitted to Dr
Monro, or Mr Playfair, or to some other naturalist, to report upon the
subject.
"Agreed to."
This is clearly a
Reminiscence of a bygone state of matters in the Court of Session. I think
every reader in our day, of the once famous Beetle case, will come to the
conclusion that, making all due allowance for the humorous embellishment
of the description, and even for some exaggeration of caricature, it
describes what was once a real state of matters, which, he will be sure,
is real no more. The day of Judges of the Balmuto-Hermand-Polkemmet class
has passed away, and is become a Scottish Reminiscence. Having thus
brought before my readers some Reminiscences of past times from the Courts
of Justice, let me advert to one which belongs to, or was supposed to
belong to, past days of our Scottish universities. It is now a matter of
tradition. But an idea prevailed, whether correctly or incorrectly, some
eighty or a hundred years ago, that at northern colleges degrees were
regularly sold, and those who could pay the price obtained them, without
reference to the merits or attainments of those on whom they were
conferred. We have heard of divers jokes being passed on those who were
supposed to have received such academical honours, as well as on those who
had given them. It is said Dr Samuel Johnson joined in this sarcastic
humour. But his prejudices both against Scotland and Scottish Literature
were well known. Colman, in his amusing play of the "Heir at
Law," makes his Dr Pangloss ludicrously describe his receiving an
LL.D. degree, on the grounds of his own celebrity (as he had never seen
the college), and his paying the heads one pound fifteen shillings and
threepence three farthings as a handsome compliment to them on receiving
his diploma. Colman certainly had studied at a northern university. But he
might have gone into the idea in fun. However this may be, an anecdote is
current in the East of Scotland, which is illustrative of this real or
supposed state of matters, to which we may indeed apply the Italian phrase
that if "non vero" it is "ben trovato." The story is
this:—An East Lothian minister, accompanied by his man, who acted as
betheral of his parish, went over to a northern university to purchase his
degree, and on their return home he gave strict charge to his man, that as
now he was invested with academical honour, he was to be sure to say, if
any one asked for the minister, "O yes, the Doctor is at home, or the
Doctor is in the study, or the Doctor is out, as the case might be."
The man at once acquiesced in the propriety of this observance on account
of his master’s newly acquired dignity. But he quietly added, "Ay,
ay, minister; an’ if ony ane speirs for me, the servants maun be sure to
say, Oh, the Doctor’s in the stable, or the Doctor’s in the kitchen,
or the Doctor’s in the garden or the field." "What do you
mean, Dauvld?" exclaimed his astonished master; "what can you
have to do with Doctor?" "Weel, ye see, sir," said
David, looking very knowing, " when
ye got your degree, I thought that as I had saved a little money, I
couldna lay it out better, as being betheral of the church, than tak’
out a degree to myself." The story bears upon the practice, whether a
real or a supposed one; and we may fairly say that under such principals
as Shairp, Tulloch, Campbell, Barclay, who now adorn the Scottish
universities, we have a guarantee that such reports must continue to be
Reminiscence and traditional only. |
