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"The charge is prepared, the
lawyers all set,
The judges all ranged, a terrible show."
Gay (The Beggars Opera).
1842
THE Parliament House with the
Law Courts beside t was in my childhood the centre spot of Edinburgh
vitally. My first visit to it was when I was about six and a half years old.
My father being a Writer to the Signet, took me in one day to see the sight.
It was the sound that struck me most, resembling, as i't did, On an
exaggerated scale, the noise of a busy hive. No words can describe that hum
of a couple of hundred people all talking at once. The floor was
crowded—much more crowded than it is now— with advocates in wigs and others
in tall hats, walking back and forward the whole length of the great hall,
some in serious converse, and some in talk of very much the reverse
character, judging by the occasional bursts of laughter. So great was the
noise that when anyone wished to find a particular person, he had the
services of a crier, who filled a pulpit at the lower end of the hall, and
whose stentorian voice was heard from time to time, shouting above the din
the name of some barrister or law-agent whom he. had been asked to summon.
My childish sense of fun was aroused by a recurring sight at that end of the
hall. The Melville statue, which is now placed against the end wall, was then
set some distance out, and around it were several gratings to bring warm air
into the building. As the barristers passed along in their walk, the rush of air
got under their gowns and blew them up nearly shoulder high with most comical effect, and I have no doubt 1 was rebuked for pointing at them, and
laughing at the sight.
1 was taken to see the
Courts, and had pointed out to me some of the judges that were known to my
father personally. I was shown Lord Robertson ill one of what were called
the Lord Ordinary's boxes—four small courts—he having been promoted to the
Bench about that time. He was a personal friend of my father. There was
nothing going on, and I came away with the impression that he was having a
nap. I learned later to know him as a humorous and witty old gentleman. He
was rather a bon vivant, and doubtless many of his clever sayings have
already appeared in print. But one never published I heard myself, and it
may be worth recording as an illustration. One day I was out with my
stepmother, and we met Lord Robertson. He had been dining at our house two
nights before, and he stopped and spoke to us. My father had been in very
bad health, and was cured by the ablest of the hydropathic doctors of that
day, Dr. Gully of Malvern, but was not drinking wine at all after Ins return.
Lord Robertson said to my stepmother: "Mrs. Macdonald, to see your husband
as he is now, would almost persuade a wine-bibber to turn water drinker"— a
pause, and offering his hand; "but remember, I said almost, ' and off he
walked.
After seeing Lord Robertson I
was taken into the First Division, and I
have a vivid recollection of Lord Justice--General Boyle, as he, pressing
the tips of the fingers together, gazed upwards, as some advocate was
vehemently pleading. The statue of him in the Parliament House is highly
characteristic of the man. I only saw him once. He had an imposing presence not
to be easily forgotten. It is of him that the well-known story is told of
his going out shooting alone on a friend's estate, when, not knowing the
marches, he got on to another property. The farmer came along, waving his
arms and shouting: "Hey! what are ye daein' there; get oot o' that, wull
ye?" when his lordship drew himself up and replied: "Do you know who
it is
you are addressing, sir; I am the Lord Justice-Clerk" (as he was then).—"I'm
no carin' whae's claerk ye are, ye"re no to spile ma neeps" replied the irate
bucolic.
I cannot recall any of the
other judges in the First Division, except Lord Mackenzie, who was a striking
figure, with his lean, long face, from which two keen, shrewd eyes looked
out through his gold-rimmed spectacles. Looking very dried up, and
suggesting a human spelding (Scots for a dried sea-fish), he nevertheless
had a keen sense of humour. It's told of him that on one occasion, when the
jury retired to consider conviction or acquittal, they rang their bell,
producing the usual strr of anticipation in Court. It turned out, as
reported by the macer, that they rang to ask if they might be allowed to
have some water while they were in deliberation. According to the law of
Scotland, it is forbidden, when a jury has been enclosed, that they should
be suffered to have any "meat or drink," until they have returned their
verdict. Everybody listened to hear what the judge would say. Lord
Mackenzie, looking up meditatively, delivered himself in slow and deliberate
tones, heard throughout the Court, thus: "Well, ye canna call it meat" (and
then more rapidly), "and it sairtainly is not drink; they can have the
water."
On leaving the First Division
I was taken to the Second Division, little knowing that, as I gazed at Lord
Justice-Clerk Hope in his seat, I was looking at the chair I was to occupy
about forty-five years later. I was taken there to see Lord Medwyn and Lord
Wood, who were friends of our family. Oh, how very, very old they looked to
my young eyes! The memory helps one to realise how we on the Bench appear
to the young of to-day. But I do hope that we try, and try successfully, to
be more young in spirit to the young than those of an older generation were
wont to be.
The other judge in that
Division at that time was Lord Moncreiff, the first of the three Lords of
Session of that name. I heard of him as a truly upright and learned judge,
whose integrity earned the respect of all. He was, however, the lawyer pure
and simple, and not much versed in practical matters. Lord Cockburn, who
admired and loved him, was constrained to say that he showed "a great
inferiority of general knowledge." I have heard it said of him that he did
not know that the lighting gas came to the burners through pipes from a
distance. On one occasion he was on the Bench at the trial of an engine-
driver, in the early days of railroads. A man had been run over at a level
crossing and killed. The driver's fireman was brought as a witness for his
mate, and being asked whether the prisoner whistled on approaching the
crossing, answered that he did. Then he was asked how loud he whistled, and
his reply was, "He whistled loud enough to be heard more than half a mile
off. Lord Moncreiff laid down his pen, and after looking sternly at the
witness, turned to Lord Cockburn and said: "Cockburn, did you hear
that—whistling loud enough to be heard half a mile off, the man's
perjured!"—"Oh,b ut," replied Cockbiirn, "he doesn't mean that he whistled with
his mouth; they do it by a whistling machine."—"A machine for whistling! I
never heard of such a thing," and with a semi-consciousness that he was
being made to look foolish, he said in dudgeon: "I'll tell you what it is,
Cockburn, ye're most abominably rash to say such a thing."
Speaking of the Criminal
Court leads me to mention my first experience of the High Court of Juasticiary. When quite a little fellow, I was taken to witness the trial
of one Wilson for the murder of his wife by poisoning, of which he was convicted, and
for which he was hanged. I mention this because it was the
first occasion on which I saw two men, whom I knew well as kind friends in
after years, Dr. (afterwards Sir) Douglas Maclagan and Dr. (afterwards Sir)
Henry Duncan Litde-john. T'hey were comparatively young men at the time, and
had been employed to make the analysis, which proved the death to be from
arsenic* I still have the words fixed on my mind of their report, which was
read: "On heating in a tube three crystalline rings were produced, which on
being tested with the usual reagents were found to give the reactions of
arsenious acid. I refer to the incident, as most probably this was the first
professional appearance of both of them in an important criminal case; and
it s worthy of remark that Dr. Maclagan became Professor of Medical
Jurisprudence in 1862, and that on his decease Sir Henry Littlejohn was
appointed to the Chair. I here will be something to be said of both of them
later. The Lord Justice-Clerk Hope presided, with Lord Cockburn and Lord
Wood. He was always dignified, but on that occasion made it plain that he
could be betrayed into loss of temper. I anticipate time a little to say,
that after this first visit the Justiciary Court exercised a fascination for
me, and I picked up a good deal of criminal law while I was still but a
schoolboy, as I attended trials, when I had
opportunity, during my whole schoolboy period, here was opportunity enough,
for in those days there were few fortnights during Session time when there
were not several cases, and in three or four hours a shower of sentences of
transportation extending from seven to fourteen years or more. At that time
certain classes of crime, such as robbery with violence, could not be tried
in any other Court, and they were more numerous than now. Also, any person
who had been previously convicted, or was a known thief, was invariably
tried n the Supreme Court, and pleas of guilty were much more rare than they
are to-day. I witnessed at one of my boy attendances a trial, followed by
seven years' transportation, of two young women, whose offence was that they
went into a little shop, in the absence of the woman to whom it belonged, and
stole three or four little biscuits out of a glass jar. The seven years
sentence was in those days a matter of almost automatic sequence on a
prisoner having previous convictions standing against him. When such things
were done, there is little ground for wonder at the fact that sometimes
between ten and two o'clock an aggregate of about fifty years of
transportation beyond the seas would be dealt out to six or seven prisoners,
the sentence being followed in some cases by a volley of unreportable
language as the convicts were hustled down the stair, when the trap-door
rose up in front of them. Some even fought and struggled, and had to be forced down. Some contented them selves with a loud "Cheer up" to their friendsr
in the gallery. Sometimes the Court was addressed sarcastically. Once
I heard a prisoner say to the Lord justice-Clerk: "Hey, man, ye'll no be
alive when I come back." I remember also on one occasion hearing an old
woman in piteous accents beseech the judge to give her "a chance," saying,
"I'll never come here again." The judge said, "Well, I will give you a
chance," and sentenced her to a short term of imprisonment. "Thank ye, my
lord, said she in touching tone. bobbinga curtsey, and as she turned round to
descend the trap she leered up at her friends in the gallery, and grinning,
thrust out her tongue to its utmost stretch.
It was noteworthy in those
days that the prisoner of the criminal classes who could sign his name was
the exception, most of those who pleaded guilty having their plea signed by
counsel for them. At the present day there is a great difference. A scene of
violent speech or action after sentence is very rare, and not once in several
years is there a prisoner brought to trial who cannot write. Further, as
regards crimes of dishonesty, it is only the apparently incorrigible that
are brought before the High Court. Penal servitude, the modern equivalent of
transportation, is only awarded to such cases, and to cases of exceptionally
serious crime, or after many convictions.
Returning to the most early
clays of my life, I was brought in contact with another of the leading men
of the legal profession when I was quite a little boy.
My father was an intimate
friend of Duncan Macneill, afterwards Lord Colonsay, who, when I was a small
schoolboy, held the office of Lord Advocate. They had been much associated
in the conduct of Court cases. Although he became Lord Justice-General, he
had before doing so accepted an appointment from the Government of his
political opponents as a Judge of the Court of Session, and I am able to
mention a fact which probably is not known to anyone else now alive, and
which I heard from his own lips. When he was appointed to the Bench, my
father went along Great King Street, where his friend also resided, to leave
a card of congratulation, and he took me by the hand. It so happened that we
met the new judge on his own doorstep, and the congratulations were offered
verbally. I cannot remember what led to it, but I think my father must have
suggested surprise that his friend should have accepted an ordinary
judgeship, for I heard the new judge say: "I put it to our own chiefs
whether my accepting would interfere with my getting one of the chairs, if it
fell vacant when they were in power, and I was assured it would not." Of
course I did not know what this meant, and puzzled over it, and perhaps that
had some effect in impressing in the matter on my memory. As it happened,
he had not long to wait, for there was a change of Government, and on Lord
Justice-General Boyle retiring he was appointed to succeed him.
I remember well another judge
of repute, although he had retired from the Bench when I was an infant, Lord
;Justice-General Hope. I saw him often, for having an early leaning to the
library, I went to the inspections and reviews in the Queen's Park whenever
I could. When Lord-Advocate, and afterwards Lord Justice-Clerk. he had been,
in the closing years of the Napoleonic wars, a very keen Volunteer, and had
commanded the Edinburgh Regiment of Volunteers till it was disbanded after
the close of the war, devoting much time and energy to their training. His
general order, giving instruction for the meeting an enemy landing on our
coast, is a classic of Volunteer literature, and no one acquainted with
military matters can read it without appreciating the thoughtfulness and
knowledge which it displays. I have in my possession, kindly given to me by
his daughters some years ago—as following in his footsteps—his notebook of
parades and exercises, instructions for sharp-shooters, &c., an interesting
record of home-defence activity. With it they gave me the last two remaining
lasses of a set presented to him, having the initials of the corps engraved
on them, which I cherish, along with the sword of Baron Hume, the
criminal law writer (who was
Major under Lord President Hope), and which came to me through his daughter,
who was my stepmother. When Lord President Hope retired from the Bench he
was paralysed in his lower limbs, but his keen interest in soldiering
remained unabated. I have seen him wheeled down a gangway put out from
his door to his carriage, and his servant practically hoisting him in.
Whenever there was anything going on in the Park, thither he was driven, and
was always admitted within the line of sentries keeping the ground, to
witness the march-past and the manoeuvres. Little thought, when at times
I saw him there, that it would be given to me to follow him in his double
career, and to be:in command of the Edinburgh Volunteers when I was
Lord-Advocate and Lord Justice-Clerk. If ever it is my fate to be disabled, I
trust I may be as cheerful as he remained, taking an interest, as he did,
in things which he loved, but in which he could no longer take an active
part.
I was surprised, in looking
over once again Cockburn Criminal Notes' to find him saying, "The
judicious lamented Lord Justice-Clerk Hope being a Lieutenant-Colonel of
Volunteers," and commenting upon Charles Hope, after leaving Court at
Aberdeen, mounting a charger, and saying in italics that he "went and
reviewed the Volunteers.* I have myself done the same, though not after a Circuit Court. I never received a hint from anyone
that in leisure time it was reprehensible to do what lay open to the citizen
for the national defence. I should consider one who gave such a hint not to
be "judicous", but to be "injudicous."
I do not think that such priggish notions obtain now, and one is surprised to find them expressed by so
broad-minded a man as Lord Cockburn. When the Boer War broke out, the Forth
Brigade, of which I was then the Brigadier-General in command, was ordered
into camp for a month's special war training, and turned out 4000 strong.
For the first few days the Court was still sitting, and I came into town for
my usual duty after morning parade, and returned to camp ;n the afternoon.
Yet I never heard that anyone "lamented," as Lord Cockburn says "the
judicious" did, in the case of Lord Justice Clerk Charles Hope, who
was doing what he could for his country when peril was close at hand.
The Parliament House was, until the middle of last century, a rather bleak and colourless place,
Except at the upper end, where a figure of Justice —blindfolded, and holding
the scales, but surrounded with what resembled a cloud darkened by very
dirty London fog smoke—looked out from the great window, there was nothing
to relieve the dullness of bare walls and diamond-paned casements, except four
statues—Roubillac's most artisi'c representation of Duncan Forbes of
Culloden, a charming reposeful figure of Dundas of Arriston by Chantrey, a
ponderous block of Lord President Blair, and a colossal statue of Viscount
Melville, of which I have spoken already. Bad taste, and a disregard of the
venerable, had cut out in the wall two courts of mean appearance, the
benches of which projected into the Hall, marring its symmetry. At my first
visit to the old seat of the Scottish Parliament, these disfiguringg niches
were still there, but were no longer mi use. How if can have been possible
for those who sat in them to hear and listen with undivided attention, while
the hum as of a thousand hives was in their ears, and the crowd of talkers
passed and repassed within a few feet, and without cessation, it is
difficult to conceive. A worse arrangement for those whose duty it was to
listen with an undistracted and deliberative attention cannot be conceived.
From the pictures we have of the greater Courts of that time, it can be
judged that they were also most unsatisfactory. It may surprise the young
barristers of to-day to know that the Law Room, which they now frequent
for study, was the Second Division Court Room, to which the bow window at
the corner was added later, and that in that confined space the celebrated
trial of Burke and Mrs. Macdougal took place, the judges stimulating their
jaded nerves by drinking coffee on the Bench during an adjournment in the
middle of the night. This I learned from an eye-witness. The judges
and counsel are much better provided for now, and the Court Rooms will bear
comparison with those of any other country as regards arrangement and air
space.
I saw when I was being taken
through the Courts at that first visit one of the official clerks, of whose
most striking feature one could only say, "What a nose!" It not only was
bulky, but it hung down loosely, a sight that could never pass from
recollection. And this abnormality was no cause for wonder. I heard my
father tell that he had attended a sale at Tait & Nisbett's, who were then
as Dowell is now, the first auctioneering firm in the city, and that there
was a batch of very fine cura9oa,of which he did not desire to purchase the
whole, but by arrangement with the gentleman referred to above, one of them
bought the lot, and they divided it. Meeting his co-purchaser a fortnight
later, he was greeted by the question: "Hev ye feenished that curagoa yit?"
My father said no, and that he had only opened one bottle. "Hoot,' was the
reply, "oors is a' din; some chiels cam 'to us the tither nicht and we made punch
o't." No wonder there was the "Punch"-like nose"
The habits of that time as
regards the table were very different from those of to-day. Dinner, when
guests were invited, was at six o'clock, and proceedings were protracted
to as late an hour as now, when an unpunctual descent is made to a so-called
eight o'clock repast. The time of ladies for coffee, tea, and gossip was
long, the "joining the ladies" never taking place till much more than an
hour had passed after they had gone upsta;rs. Coming down, as little people
did in those days, to dessert, the boy child was allowed to stay below, a
testimony to the improved tone of the conversation of the male sex as
compared with the three-bottle days. But still the habits were very
different from what they are now. If there were eght gentlemen,it was arara
thing eight bottles of claret were not opened, and sherry
handedroundasa"wh'tewash"tofinish. I remember heai ng a gentleman ask what
was the use of taking a glass of sherry at the last, and replying to his own
questiDn by saying that by that practice you got 365 more glasses of wine
every year.
It is only fe r to say that
anything like intoxication was almost never seen, and there was no call for
a little fellow, as in a former generation, to lie under the table to "lowse
the neckcloths. Liitle wine was drunk during dinner, probably only one glass
of champagne, and the bottle of claret not being hastily taken, could be
carried quite steadily. But how different is it all from the better habit of
to-day, when a single decanter s scarcely ever emptied, and the ladies only
get a liberal twenty minutes for female gossip.
In those days such an idea as
that the servants should venture to bring in coffee to the gentlemen until it
was expressly ordered, would have been thought to be quite out of the
question. It would have been supposed that the host wished to save his wine. Bottle after bottle of claret was rung for, and it was only when the
red was declined and the white—called, as it was, "sherry white wine"—was
seen to be taken, that any move for coffee was made.
I will only say one thing
more about the dinner-party of the Forties. We small people, with the
recollection of past injunctions as to the impropriety of making a noise,
and being often appealed to thus: "Do you see ladies and gentlemen behaving
in such a way, and talking so loud?" could not but be astonished, as we
gazed through the banisters from above, to see eighteen or twenty people go
down to dinner. To us it was scarcely conceivable that such a babel of
sound could come from ladies and gentlemen that were held up to us as models
of quiet propriety. It was our first introduction to the incongruities and
inconsistencies of social life. Probably had we dared to ask for an
explanation, we would have been found impertinent and sent to bed. With our
scores of books and lectures on the training of the young, shall we ever
come to realise that all the moral and social maxims of theoretical instruction can be marred by the child's acute perceptions, which teach
him
that practice and precept do not always go hand in hand in the case of his
elders, and also to realise that if they do not, precept may be worse than
useless as part of training.
OLD TOWN FROM PRINCES
STREET, 1850
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