COURT OF SESSION GARLAND.
A curious characteristic view of the Scottish bench about the year 1771 is presented in a doggerel ballad, supposed to have been a joint composition of James Boswell and John Maclaurin,[99] advocates, and professedly the history of a process regarding a bill containing a clause of penalty in case of failure. This Court of Session Garland, as it is called, is here subjoined, with such notes on persons and things as the reader may be supposed to require or care for.
PART FIRST.
The bill charged on was payable at sight,
And decree was craved by Alexander Wight;[100]
But because it bore a penalty in case of failzie,
It therefore was null, contended Willie Baillie.[101]
The Ordinary, not choosing to judge it at random,
Did with the minutes make avisandum;
And as the pleadings were vague and windy,
His lordship ordered memorials hinc inde.
We, setting a stout heart to a stay brae,
Took into the cause Mr David Rae.[102]
Lord Auchinleck,[103] however, repelled our defence,
And, over and above, decerned for expense.
However, of our cause not being ashamed,
Unto the whole lords we straightway reclaimed;
And our Petition was appointed to be seen,
Because it was drawn by Robbie Macqueen.[104]
The Answer by Lockhart[105] himself it was wrote,
And in it no argument nor fact was forgot.
He is the lawyer that from no cause will flinch,
And on this occasion divided the bench.
Alemore[106] the judgment as illegal blames;
‘’Tis equity, you bitch,’ replies my Lord Kames.[107]
‘This cause,’ cries Hailes,[108] ‘to judge I can’t pretend,
For justice, I perceive, wants an e at the end.’
Lord Coalstoun[109] expressed his doubts and his fears;
And Strichen[110] threw in his weel-weels and oh dears.
‘This cause much resembles the case of Mac-Harg,
And should go the same way,’ says Lordie Barjarg.[111]
‘Let me tell you, my lords, this cause is no joke!’
Says, with a horse-laugh, my Lord Elliock.[112]
‘To have read all the papers I pretend not to brag!’
Says my Lord Gardenstone[113] with a snuff and a wag.
Up rose the President,[114] and an angry man was he—
‘To alter the judgment I can never agree!’
The east wing cried ‘Yes,’ and the west wing cried ‘Not;’
And it was carried ‘Adhere’[115] by my lord’s casting vote.
The cause being somewhat knotty and perplext,
Their lordships did not know how they’d determine next;
And as the session was to rise so soon,
They superseded extract till the 12th of June.[116]
PART SECOND.
Having lost it so nigh, we prepare for the summer,
And on the 12th of June presented a reclaimer;
But dreading a refuse, we gave Dundas[117] a fee,
And though it run nigh, it was carried ‘To See.’[118]
In order to bring aid from usage bygone,
The Answers were drawn by quondam Mess John.[119]
He united with such art our law with the civil,
That the counsel on both sides wished him to the devil.
The cause being called, my Lord Justice-clerk,[120]
With all due respect, began a loud bark:
He appealed to his conscience, his heart, and from thence
Concluded—‘To Alter,’ but to give no expense.
Lord Stonefield,[121] unwilling his judgment to pother,
Or to be anticipate, agreed with his brother:
But Monboddo[122] was clear the bill to enforce
Because, he observed, it was the price of a horse.
Says Pitfour,[123] with a wink, and his hat all a-jee,
‘I remember a case in the year twenty-three—
The Magistrates of Banff contra Robert Carr;
I remember weel—I was then at the bar.
Likewise, my lords, in the case of Peter Caw,
Superflua non nocent was found to be law.’
Lord Kennet[124] also quoted the case of one Lithgow,
Where a penalty in a bill was held pro non scripto.
The Lord President brought his chair to the plumb,
Laid hold of the bench, and brought forward his bum;
‘In these Answers, my lords, some freedoms are used,
Which I could point out, provided I choosed.
I was for the interlocutor, my lords, I admit,
But am open to conviction as long’s I here do sit.
To oppose your precedents, I quote a few cases;’
And Tait[125] à priori, hurried up the causes.
He proved it as clear as the sun in the sky,
That their maxims of law could not here apply;
That the writing in question was neither bill nor band,
But something unknown in the law of the land.
The question—‘Adhere,’ or ‘Alter,’ being put,
It was carried—‘To Alter,’ by a casting vote;
Baillie then moved—‘In the bill there’s a raze;’
But by this time their lordships had called a new cause.
A few additions to the notes, in a more liberal space, will complete what I have to set down regarding the lawyers of the last age.
THE PARLIAMENT HOUSE.
LOCKHART OF COVINGTON.[126]
Lockhart used to be spoken of by all old men about the Court of Session as a paragon. He had been at the bar from 1722, and had attained the highest eminence long before going upon the bench, which he did at an unusually late period of life; yet so different were those times from the present that, according to the report of Sir William Macleod Bannatyne to myself in 1833, Lockhart realised only about a thousand a year by his exertions, then thought a magnificent income. The first man at the Scottish bar in our day is believed to gain at least six times this sum annually. Lockhart had an isolated house behind the Parliament Close, which was afterwards used as the Post-office.[127] It was removed some years ago to make way for the extension of the buildings connected with the court; leaving only its coach-house surviving, now occupied as a broker’s shop in the Cowgate.
Mr Lockhart and Mr Fergusson (afterwards Lord Pitfour) were rival barristers—agreeing, however, in their politics, which were of a Jacobite complexion. While the trials of the poor forty-five men were going on at Carlisle, these Scottish lawyers heard with indignation of the unscrupulous measures adopted to procure convictions. They immediately set off for Carlisle, arranging with each other that Lockhart should examine evidence, while Fergusson pleaded and addressed the jury; and offering their services, they were gladly accepted as counsel by the unfortunates whose trials were yet to take place. Each exerted his abilities, in his respective duties, with the greatest solicitude, but with very little effect. The jurors of Carlisle had been so frightened by the Highland army that they thought everything in the shape or hue of tartan a damning proof of guilt; and, in truth, there seemed to be no discrimination whatever exerted in inquiring into the merits of any particular criminal; and it might have been just as fair, and much more convenient, to try them by wholesale or in companies. At length one of our barristers fell upon an ingenious expedient, which had a better effect than all the eloquence he had expended. He directed his man-servant to dress himself in some tartan habiliments, to skulk about for a short time in the neighbourhood of the town, and then permit himself to be taken. The man did so, and was soon brought into court, and accused of the crime of high treason, and would have been condemned to death had not his master stood up, claimed him as his servant, and proved beyond dispute that the supposed criminal had been in immediate attendance upon his person during the whole time of the Rebellion. This staggered the jury, and, with the aid of a little amplification from the mouth of the young advocate, served to make them more cautious afterwards in the delivery of their important fiat.
To show the estimation in which Lockhart of Covington was held as an advocate, the late Lord Newton, when at the bar, wore his gown till it was in tatters, and at last had a new one made, with a fragment of the neck of the original sewed into it, whereby he could still make it his boast that he wore ‘Covington’s gown.’