Part 11 (2/2)

CHAPTER FIVE

THE JUDGES OF SCOTLAND

From the Inst.i.tution of the Court of Session by James V of Scotland till well into the nineteenth century, it was the custom of Scottish judges when taking their seat on the Bench to a.s.sume a t.i.tle from an estate--it might even be from a farm--already in their own or their family's possession. So we find that nearly every parish in Scotland has given birth to a judge who by this practice has made that parish or an estate in it more or less familiar to Scottish ears. Monboddo, near Fordoun, in Kincardines.h.i.+re, at once recalls the judge who gave ”attic suppers” in his house in St. John Street, Edinburgh, and held a theory that all infants were born with tails like monkeys; but under the modern practice of simply adding ”Lord” to his surname of Burnet, we doubt if his eccentric personality would be so readily remembered. Lord Dirleton's _Doubts_, Lord Fountainhall's _Historical Observes_, carry a more imposing sound in their t.i.tles than if those one-time indispensable works of reference had been simply named Nisbet on Legal Doubts, and Lauder on Historical Observations of Memorable Events.

The selection of a t.i.tle was an important matter with these old judges.

When Lauder was raised to the Bench, his estate to the south-east of Edinburgh was called Woodhead; but it would never have done for a Senator of the College of Justice to be known as ”Lord Woodhead,” so the name of the estate was changed to Fountainhall, and as Lord Fountainhall he took his seat among ”the Fifteen” as the full Bench of judges was then termed.

These old-time judges with their rugged ferocity, corruption, and occasionally brave words and deeds, in a great measure present to us now a miniature history of Scotland in the seventeenth and eighteenth centuries. ”Show me the man, and I will show you the law,” one is reported to have said, meaning that the litigant with the longest purse was pretty certain to win his case in the long run. They delighted in long arguments, and highly appreciated bewilderment in pleadings; ”Dinna be brief,” cried one judge when an advocate modestly asked to be briefly heard in a case in which he appeared as junior counsel. But the tendency to delay cases in the old Courts stretched beyond all reasonable lengths and became a scandal to the country. It was not a question of a month or even a year. Years pa.s.sed and still cases remained undecided, some even were pa.s.sed on from one generation to another--a litigant by his will handing on his plea in the Court to his successor along with his estate.

This protracted delay in deciding causes formed the subject of that highly amusing and characteristic skit on the Scottish judges for which Boswell was largely responsible:

THE COURT OF SESSION GARLAND

PART FIRST

The Bill charged on was payable at sight And decree was craved by Alexander Wight;[1]

But, because it bore a penalty in case of failzie It therefore was null contended Willie Baillie.[2]

The Ordinary not chusing to judge it at random Did with the minutes make avizandum.

And as the pleadings were vague and windy His Lords.h.i.+p ordered memorials _hinc inde_.

We setting a stout heart to a stey brae Took into the cause Mr. David Rae:[3]

Lord Auchenleck,[4] however, repelled our defence, And over and above decerned for expence.

However of our cause not being asham'd, Unto the whole Lords we straightway reclaim'd; And our pet.i.tion was appointed to be seen, Because it was drawn by Robbie Macqueen.[5]

The answer of Lockhart[6] himself it was wrote, And in it no argument or fact was forgot; He is the lawyer that from no cause will flinch, And on this occasion divided the Bench.

Alemoor,[7] the judgment as illegal blames, 'Tis equity, you b.i.t.c.h, replies my Lord Kames;[8]

This cause, cries Hailes,[9] to judge I can't pretend, For Justice, I see, wants an _e_ at the end.

Lord Coalston[10] expressed his doubts and his fears, And Strichen[11] then in his weel weels and O dears; This cause much resembles that of M'Harg, And should go the same way, says Lordy Barjarg.[12]

Let me tell you, my Lords, this cause is no joke; Says with a horse laugh my Lord Elliock[13]

To have read all the papers I pretend not to brag, Says my Lord Gardenstone[14] with a snuff and a wag.

Up rose the President,[15] and an angry man was he, To alter this judgment I never can agree; The east wing said yes, and the west wing cried not, And it carried ahere by my Lord's casting vote.

This cause being somewhat knotty and perplext, Their Lords.h.i.+ps not knowing what they'd determine next; And as the session was to rise so soon, They superseded extract till the 12th of June.

PART SECOND

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