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WHEN I entered the
profession, the Lord Justice-General was Lord Colonsay, and the Lord
Justice-Clerk Lord Glencorse, two men each great, though not quite in the
same way. Lord Colonsay was a model of sagacity, and one who understood men
thoroughly. Patient, and ever courteous, one can recall his rich laugh when,
by a few pithy questions, he had pricked the bubble of an argument, a laugh
in which it was impossible for the sufferer not to join. Dignified without
pomposity, he was a splendid representative of justice, and it was well said
of him in one of Alexander Nicolson s clever skits, that he was
"Impatient only to the man
Who vainly hid his hand."
He was a Highlander in the
best sense, and spoke like a Highlander. He was one who could not make an
enemy, and who was kind to a friend. I had from him many a friendly word,
sometimes conveyed to me through his brother, Archibald Macneill, who was a
Writer to the Signet and one of his clerks of Court. Speaking of his brother
recalls a story of a conversation between two of his people in his island of
Colonsay. The incident occurred when Bishop Colenso had published his work,
and by doing so created a great sensation. Two cronies meeting, one said:
"Hef ye heard ta. news?"
"Na, waat news?"
"Ach, dredfaal news. Colonsay
has been writing against Mowsis."
"Do ye say thaat—oh, eh, yus,
but it wull not be Colonsay, it wull be his brither, Archie, it's him that's
the writer, ye ken.'
Among his colleagues was Lord
Deas, of whom many a story is told; one of an encounter between him and
Colonsay is worthy of a place, bringing out in strong relief the characters
of the Lowlander and Highlander, The case under consideration related to the
sufficiency of fences upon a farm. Lord Deas was inclined to think they were
shown to be sufficient, but the President thought otherwise. Said Lord Deas,
"A fence might surely be good enough, although it wus nut so strong as to
keep out a Highland bull." "Perhaps," retorted Colonsay, "your lordship
thinks it would be sufficient if it could keep in a Lowland stot."
Among the judges Lord Deas
was the only one of whom it can be said that he was a "character.' There are
more stories about him than about the whole of the rest of the Bench put
together. It is difficult to select, but perhaps along with that given above
the following may do, as illustrative of the man, who had a kindly heart,
but a sardonic temperament.
A young counsel had put some
not astute questions in cross-examination, and closed a door of escape for
his client, which was only ajar so far as the prosecution was concerned.
Lord Deas put down his pen and said to the unfortunate advocate:
"Ye'd make a vera guid
prosecutor, Mr. -.I'll be glad to see you on the ither side of the table
some day."
He was the terror of the
thieves of Glasgow, who thought their luck was out when they saw him on the
Bench as they ascended the stair of the dock. The good stories about him are
many, but the temptation to take up space must be resisted.
In the Second Division Lord
Glencorse (John Inglis) presided. Of most commanding intellect and highly
cultivated in learning, he shone in every department, as he had done at the
Bar, and left his mark on the records of legal lore in the official reports.
Sometimes it seemed as if he hardly appreciated how crushingly he could
excercise his power. From him, too, I received much friendly kindness, which
I gratefully remember. There is little that can be told of him from a
jocularity point of view, but one incident may be chronicled. When on
Circuit at Jedburgh a counsel rather given to grandiloquence had emphasized
a point he was making by saying to the jury that he pledged his professional
reputation in support of his contention. At the next town on the Circuit; he
was loudly repeating the same pledge, when the Lord Justice-Clerk Inglis
said drily from the Bench, "I am afraid, Mr.-, that the article you mention
is already in pawn at Edburgh!"
In the Outer House the senior
judge was Lord Neaves, a humorist of no mean powers, of whom Lord Cockburn
said when he was still a young man, "Agreeable, literary, and an excellent
compounder of humorous verse." His ballads, such as "The Rechabite,"' 'The
Permissive Bill," "The Origin of Species," and others, gave much amusement
to the reader, and I have heard him sing them, in a recitative style, saying
that he had left all his vocal musical powers in the Jury Court.
I quote three verses from his
"Origin of Species," which treats jocularly of Darwin's theories, and are
good specimens of his style:
"But I'm sadly afraid, if we
do not take care
A relapse to low life may our prospects impair,
So of beastly propensities let us beware
Which nobody can deny.
This lofty position our
children may lose,
And, reduced to all-fours, must then narrow their views,
Which would wholly unfit them for filling our shoes,
Which nobody can deny.
Thus losing Humanity's nature
and name,
And descending through varying stages of shame,
They'd return to the monad from whence we all came,
Which nobody can deny."
Lord Neaves and his ballads
bring up to memory another member of the Bar who, at an earlier period,
shone in merry versification, George Outram, who has left us many a good
thing in fun and good-nature. His song, " 'he Annuity" is a masterpiece of
its kind.
Lords Benholme, Ardmillan,
Mackenzie, and Kinloch were then in the Outer House, as Lord Neaves was, all
kindly and courteous, before whom it was a pleasure to plead. One cannot
speak in detail of them, or of all the judges in the Inner House, but of
Lord Benholme. I will say that he was the most patient judge I ever saw on
the Bench. Even in a period when interruption of counsel was not so frequent
as it is now, he was facile princcps. At times one would almost wish
for some relaxation from the sphinx-like stillness, in the hope of a word
that might reveal which way the judicial mind was leaning. A combative
counsel was quite out of his element at Lord Benholme's Bar, whose first and
only word in many a case was "Avizandum."
In contrast to Lord
Benholme's patient listening, an incident which occurred in one of the
Divisional Courts is amusing;. It was the rule in former days that if a
counsel was pleading before a Lord Ordinary, and a case in which he was
retained was called in a Division, he was required to state the fact to the
judge, and leave his Bar. In a case where this occurred there was a long
and, as it appeared to the Bench, an unseemly delay, before the counsel
appeared. On his arrival the senior judge said, frowning, "You ought to
remember, Mr.--, that the fact that you are addressing a Lord Ordinary s no
excuse for not coming to the Division when a case is called."
Counsel replied, "Oh, my
lord, that was not the state of matters at all, it was the Lord Ordinary
that was addressing me!" This reminds one of the stranger who was taken to
the House of Lords when a judicial case was proceeding, and being somewhat
astonished at what was going on, as counsel was finding it difficult to get
in a sentence edgeways, whispered to his friend, "Who is that barrister that
is always interrupting the noble lord on the right of the Chancellor?"
Apropos of this modern practice, it is told of Lord Hals-bury when he was
Lord Chancellor, that when a case was proceeding before the House of Lords a
counsel having been kept standing for a long time, unable to get in a word,
while noble lords made little speeches in controversy with one another, he
interposed at last and said: "Perhaps it would be advisable that we should
listen to Mr.- and relieve him from having to listen to us."
Lord Kinloch was of a
cheerful disposition, and he it was who uttered a famous reply when an
advocate, which was afterwards appropriated in "Pump Court" as having
occurred in London. When pleading at the Bar, the following poser was put to
him by the Lord Justice-Clerk: "But, Mr. Penney, the peculiarity of the case
as you are stating it, is that you have maintained four separate and
inconsistent pleas." "Ha, hah," replied he, with that rolling laugh I
remember so well, "there are four of your lordships." Even the sternest had
to join - a the laugh which rang through the Court.
The Lord-Advocate, when I
entered the Faculty, was Lord Moncreiff (the second), and the
Solicitor-General was Mr. Maitland, afterwards Lord Barcaple, and I can best
recall them when they pleaded for the pursuer in the celebrated cause of
Longworthand Yelverton, in which they both distinguished themselves greatly
by their closely reasoned and impassioned orations. Lord-Advocate Moncreiff
and I were associated in another capacity than that of the Bar, as he became
the first commanding officer of the Edinburgh Volunteers joining, as many
gentlemen did at that time, as an encouragement to others. I cannot
criiticise his capacity as a commander, as during the years he held the
appointment he only attended once on parade on a markedly arm chair horse.
He looked on and made a speech. I heard him say at a meeting of officers
that his duties made it difficult for him to serve, and that he would resign
at once if we thought he should do so. Of course, whatever our inward
thought might be, none of us liked to say that we thought so, and he
remained on for a long time. The result was that when I was made a major in
1861 I was fortunate, for I got practically the command of a battalion when
I had been only two years in the force, which was a great delight to me, as
I was fond of military exercises. Lord-Advocate Moncreiff was also Dean of
Faculty for several years while holding the Government office. Lord Cockburn
had long before expressed a very strong view against such a combination. In
speaking of Duncan Macneill being made Dean when at the same time he was
Solicitor-General, he says in his journal: "Altogether wrong; because the
Deanery and the office of Lord-Advocate, or of Solicitor-General, should
never be combined. . . . The Dean should be as ^dependent as he can be made;
but if the chief local organ of Government can hold the place, it will never
be independent at all." Of late years opinion has very decidedly leant in
the direction of Lord Cockburn ; view, which certainly I share strongly. On
becoming Lord-Advocate I at once resigned the Deanship. It is not likely
that in the future a law-officer will be chosen for Dean. Apart from Lord
Cockburn's objection on general principle, the practice which is now a
settled one of both law-officers being members of the House of Commons, and
the fact that Parliamentary life is now so exacting, would make it almost a
scandal that the advocate chosen to represent the Bar as its head should
hold either the office of Lord-Advocate or Solicitor-General. As I heard
Lord Young, when at the Bar, say on the occasion )f an election of a Dean,
't was coming to be recognised that the Deanship should be a "lonely
splendour."
On Mr. Maitland taking his
seat on the Bench, Mr. Young, then one of the most powerful pleaders, became
Solicitor-General, and was elected to represent the Witon Burghs. I remember
hearing him say when someone asked him what his chances were of carrying the
seat, that he thought it would be all right as he had a requisition from a
majority of the electors, here are few men who have had such a chance as
that. Strange to say, when he last stood for the same constituency, he was
in no such fortunate case, he poll showed a majority of one against him, and
this led to his accepting a seat on the Bench, filling a vacancy which had
stood open for many months, he holding that the number of the judges should
be reduced. The worst of it all was that after he had accepted the
judgeship, t turned out on a scrutiny that he had been duly elected for the
seat by a few votes.
He was one of the strongest
pleaders in his time at the Bar, and was possessed of a very ready wit,
albeit it was of a caustic type. Many of his sayings might be quoted, all
very pointed and telling, but two or three must suffice. The printed papers
in the Court of Session have the letters A to G set at intervals down the
margin of each page, for convenience in pointing out a passage to which
attention s being called. A counsel was 345 pleading in a floundering style
and with many hums and haas, and Lord Young, not being sure of the place on
the page that was being referred to, asked, "Where are you now, Mr.-" The
reply was, "My lord, I am at C." "Ah, I thought so," said his lordship
drily. He and Lord Deas were personal friends. Lord Deas, as a consequence
of a riding accident, was lame for some years before his death, and always
walked with a stick in one hand and an umbrella in the other. Speaking to
Lord Young, he said: "George, do ye know why I always walk with a stick and
an umbrella?' "No," was the reply, "unless ii is that you don't want to be
taken for the devil on two sticks." On another occasion when he was pleading
strongly against a will of a deceased person, Lord Deas said to him: "Mr.
Young, if I was dying, and afterwards coming back and finding ye treating my
will in that way, I wouldn't like it." "Oh, but," replied Mr. Young, "I
trust your lordship would not come back. One of the most characteristic
stories told of him is that, on an occasion, a friend meeting him in London
said: "Oh, I see your judgment in the case of Caw against Croaker has been
affirmed in the House of Lords yesterday. His reply was, delivered in his
most caustic manner: "Well, it may be right for all that."
It is not possible to give
stones of the Bar in chronological order. Here are a few, the dates of which
are not of consequence.
In my early days at the Bar
there was a learned counsel, charming, good-natured, and kindly, whose only
failing was that he was a Knowall. No matter what the subject was—law, art,
science, literature, history, or any other branch of knowledge, he was never
at a loss. His dealing with a matter brought up was short, sharp, and
decisive. It was told of him that when on a journey with some of his
brethren to London for a case in the House of Lords, somewhere, in the
middle of a dark night, the train seemed to be going rather slowly, and one
of the party, half sleeping and half waking, murmured. "We must be going up
a steep hill just now," when a decided voice was heard from the opposite
corner, saying: "Not at all, slight gradient, one in two hundred and seventy
he man who is a Knowall is sure to be caught at times. On one occasion,——was
pleading vigorously that the point in dispute had been practically settled
by "the well-known decision ;n the case before the English Court of Queen's
Bench, Admix Robertson.'' Nobody else seemed to know of the existence of a
case by that name, and it turned out that he had not noticed that there was
no name "Admix," but that the case was truly that of So-and-so's
Administratrix, the long office al title being contracted so as to look at a
casual glance like Admix.is know all propensity led to cynical people
seeking to trip him up, by getting him to utter a confident opinion on the
spur of the moment. A brother advocate once said to him with a grave face:
"By the bye-, what do you say on the disputed point whether sterity may be
hereditary?" Promptly came the reply: "Why, certainly it can; I don't see
how there can be any difference of opinion about it.'
An advocate somewhat addicted
to flowery expressions was pleading upon a question in which the Corporation
of Bo'ness was interested, and which sharply divided the members of the
Council. At one point of his speech he said: "I trust * your lordships will
believe that in the government of Bo'ness there is manifested in its Council
a reasonable amount of amour proper Up started a Councillor of the
opposition, and leaning over from behind to his advocate said in a loud
stage whisper: "Na, na, tell them that we've naething of that low kind in
Bo'ness."
In recounting Bench and Bar
stories, I shall hope to be pardoned if I put in one here—somewhat out of
place—in which I was the performer myself, and I suggest to anyone who has a
horror of puns, to skip the next few lines. My late friend, Mr. Comrie
Thomson, was pleading in a case where there was a dispute between two
proprieters in Canongate of Edinburgh as to injury threatened by the
proceedings of one to the security of the foundations of the house of the
other. In the course of his argument he said that the building accordingto
his information was founded on rock. My colleague, the late Lord Rutherfurd
Clark, who excelled at putting catch questions in absolute solemnity of
tone, said—in allusion to a celebrated sweetmeat—"You don't mean to say, Mr.
Thomson, that you maintain that the house is built on Edinburgh rock." Being
tempted 1 fell, and broke in: "I think if; Mr. Thomson accepted that, he
would have to admit that the house would come down tout de suite? Lord
Rutherfurd Clark generously accepted my counter, saying: "That's good—that's
very good," and I hope the general hilarity was not on that occasion the
sycophant to laughter which the profession are accused of having ready for
Bench sallies, however feeble.
Speaking of the Bar of my
time, it is interesting to notice that a quintette of "Sons of the Manse"
attained to high distinction—Lord President Ingh's, Lords Watson, Robertson,
and Kinross, and Solicitor-General Alexander Asher. It must be rare that so
many ministers' sons should reach the top of their profession in one
generation. Such a conjunction is not likely to happen again for a long
time, and it is certain that it never occurred before. Three of them,
however, did not hold to the tradition of their elders, as they were in
their latter years adherents of the Episcopacy.
Lord Neaves n his own
humorous style wrote an appreciation in verse of "The Sons of the Manse,"
which is well worth reading.
I must say a word about
Robert Louis Stevenson, one who, although he did nothing at the Bar, brought
lustre to it by his literary genius. When he was a young advocate I knew him
well. Professor and Mrs. Fleeming Jenkin were very eager amateur actors, and
in their house in Great Stuart Street established a very good stage, on
which many Shakesperean plays, both tragic and comic, were produced, and
Stevenson often had a part in the performance. Once—not in their house, but
in the Misses Mairs (great-grand-daughters of Sarah Siddons)—I was set to
take part in the trial scene in the Merchant of Venice. It may sound funny,
but I was asked to play Shylock, and I did, to Robert Lot ■ s' Antonio, and
he paid me the compliment of saying afterwards that the expression of
"lodged hate," as interpreted in my face, was convincing . He and I walked
home together that night, and severely criticised some performances of
others, as possibly others did ours. I little thought then that I was side
by side with one who was to carry forward the literary fame, of Edinburgh
into yet another generation. I never saw him again after that night.
Some important events took
place in the early Sixties. One which brought out great enthusiasm was the
entry of the 78th Highlanders into Edinburgh, on their return from the East
after the Indian Mutiny. The crowd in the streets was enormous, and the
cheering wild. I was then a captain in the Edinburgh Volunteer
Corps--afterwards the Queen's Brigade—and we were turned out to line the
street from Waverley Station to the Mound. In consequence of a want of
judgment the street lighting failed, and the procession was a fiasco. Our
men were set at two paces interval, but the commanding-officer failed to
realise that as the entrance into Princes Street from Waverley Station was a
long curve, the intervals between the men on the outer side—the very place
where the crowd was most dense—were, much greater than elsewhere. His
attention was called to this, but he considered all was well, saying he
would ride along when the troops came, and keep the crowd back with his
horse. He did not realise that he and his horse would be as useful to stem
the torrent as a walking-stick would be to dam a morace. My post was near
the Royal Institution, and I found myself and my men presenting arms to a
rushing mob of hundreds, who had in their eagerness rolled the lieutenant-
colonel and all his men at the entrance to Princes Street before them,
carrying them away "as with a flood." But all this was of little
consequence, as "welcome was on every face, and shouted by every tongue. The
regiment was headed by Colonel Ewart, whose empty sleeve told of what had
been suffered in that awful time, when nothing but the unconquerable spirit
of the British soldier had put down the effort of cruel and implacable
rebels to destroy our power in India. This Colonel Ewart was the father of
General Sir Spencer Ewart, the officer who by ability and devotion to his
profession had raised himself to the Adjutant-Generalship of the Army, a
position he vacated lately in extraordinary circumstances forced upon him,
but in which his own honour was conspicuously maintained. He has since been
appointed Commander- in-Chief in Scotland. |
