JUSTICE IN BYGONE TIMES.
The memories which have been preserved of the administration of justice by the Court of Session in its earlier days are not such as to increase our love for past times.[91] This court is described by Buchanan as extremely arbitrary, and by a nearly contemporary historian (Johnston) as infamous for its dishonesty. An advocate or barrister is spoken of by the latter writer as taking money from his clients, and dividing it among the judges for their votes. At this time we find the chancellor (Lord Fyvie) superintending the lawsuits of a friend, and writing to him the way and manner in which he proposed they should be conducted. But the strongest evidence of the corruption of ‘the lords’ is afforded by an act of 1579, prohibiting them ‘be thame selffis or be their wiffis or servandes, to tak in ony time cuming, buddis, bribes, gudes, or geir, fra quhatever persone or persons presentlie havand, or that heirefter sall happyne to have, any actionis or caussis pursewit befoir thame, aither fra the persewer or defender,’ under pain of confiscation. Had not bribery been common amongst the judges, such an act as this could never have been passed.
In the curious history of the family of Somerville there is a very remarkable anecdote illustrative of the course of justice at that period. Lord Somerville and his kinsman, Somerville of Cambusnethan, had long carried on a litigation. The former was at length advised to use certain means for the advancement of his cause with the Regent Morton, it being then customary for the sovereign to preside in the court. Accordingly, having one evening caused his agents to prepare all the required papers, he went next morning to the palace, and being admitted to the regent, informed him of the cause, and entreated him to order it to be called that forenoon. He then took out his purse, as if to give a few pieces to the pages or servants, and slipping it down upon the table, hurriedly left the presence-chamber. The earl cried several times after him: ‘My lord, you have left your purse;’ but he had no wish to stop. At length, when he was at the outer porch, a servant overtook him with a request that he would go back to breakfast with the regent. He did so, was kindly treated, and soon after was taken by Morton in his coach to the court-room in the city. ‘Cambusnethan, by accident, as the coach passed, was standing at Niddry’s Wynd head, and having inquired who was in it with the regent, he was answered: “None but Lord Somerville and Lord Boyd;” upon which he struck his breast, and said: “This day my cause is lost!” and indeed it proved so.’ By twelve o’clock that day, Lord Somerville had gained a cause which had been hanging in suspense for years.
In those days both civil and criminal procedure was conducted in much the same spirit as a suit at war. When a great noble was to be tried for some monstrous murder or treason, he appeared at the bar with as many of his retainers, and as many of his friends and their retainers, as he could muster, and justice only had its course if the government chanced to be the strongest, which often was not the case. It was considered dishonourable not to countenance a friend in troubles of this kind, however black might be his moral guilt. The trial of Bothwell for the assassination of Darnley is a noted example of a criminal outbraving his judges and jury. Relationship, friendly connection, solicitation of friends, and direct bribes were admitted and recognised influences to which the civil judge was expected to give way. If a difficulty were found in inducing a judge to vote against his conscience, he might at least perhaps be induced by some of those considerations to absent himself, so as to allow the case to go in the desired way. The story of the abduction of Gibson of Durie by Christie’s Will, and his immurement in a Border tower for some weeks, that his voice might be absent in the decision of a case—as given in the Border Minstrelsy by Scott—is only incorrect in some particulars. (As the real case is reported in Pitcairn’s Criminal Trials, it appears that, in September 1601, Gibson was carried off from the neighbourhood of St Andrews by George Meldrum, younger of Dumbreck, and hastily transported to the castle of Harbottle in Northumberland, and kept there for eight days.) But, after all, Scotland was not singular among European nations in these respects. In Molière’s Misanthrope, produced in 1666, we find the good-natured Philinte coolly remonstrating with Alceste on his unreasonable resolution to let his lawsuit depend only on right and equity.
‘Qui voulez-vous donc, qui pour vous sollicite?’ says Philinte. ‘Aucun juge par vous ne sera visité?’
‘Je ne remuerai point,’ returns the misanthrope.
Philinte. Votre partie est forte, et peut par sa cabale entrainer....
Alceste. Il n’importe....
Philinte. Quel homme!... On se riroit de vous, Alceste, si on vous entendoit parler de la façon. (People would laugh at you if they heard you talk in this manner.)
It is a general tradition in Scotland that the English judges whom Cromwell sent down to administer the law in Scotland, for the first time made the people acquainted with impartiality of judgment. It is added that, after the Restoration, when native lords were again put upon the bench, some one, in presence of the President Gilmour, lauding the late English judges for the equity of their proceedings, his lordship angrily remarked: ‘De’il thank them; a wheen kinless loons!’ That is, no thanks to them; a set of fellows without relations in the country, and who, consequently, had no one to please by their decisions.
After the Restoration there was no longer direct bribing, but other abuses still flourished. The judges were tampered with by private solicitation. Decisions went in favour of the man of most personal or family influence. The following anecdote of the reign of Charles II. rests on excellent authority: ‘A Scotch gentleman having entreated the Earl of Rochester to speak to the Duke of Lauderdale upon the account of a business that seemed to be supported by a clear and undoubted right, his lordship very obligingly promised to do his utmost endeavours to engage the duke to stand his friend in a concern so just and reasonable as his was; and accordingly, having conferred with his grace about the matter, the duke made him this very odd return, that though he questioned not the right of the gentleman he recommended to him, yet he could not promise him a helping hand, and far less success in business, if he knew not first the man, whom perhaps his lordship had some reason to conceal; “because,” said he to the earl, “if your lordship were as well acquainted with the customs of Scotland as I am, you had undoubtedly known this among others—Show me the man, and I’ll show you the law;” giving him to understand that the law in Scotland could protect no man if either his purse were empty or his adversaries great men, or supported by great ones.’[92]
One peculiar means of favouring a particular party was then in the power of the presiding judge: he could call a cause when he pleased. Thus he would watch till one or more judges who took the opposite view to his own were out of the way—either in attendance on other duties or from illness—and then calling the cause, would decide it according to his predilection. Even the first President Dalrymple, afterwards Viscount Stair, one of the most eminent men whom the Scottish law-courts have ever produced, condescended to favour a party in this way. An act enjoining the calling of causes according to their place in a regular roll was passed in the reign of Charles II.; but the practice was not enforced till the days of President Forbes, sixty years later. We have a remarkable illustration of the partiality of the bench in a circumstance which took place about the time of the Revolution. During the pleadings in a case between Mr Pitilloch, an advocate, and Mr Aytoun of Inchdairnie, the former applied the term briber to Lord Harcarse, a judge seated at the moment on the bench, and who was father-in-law to the opposite party. The man was imprisoned for contempt; but this is not the point. Not long after, in this same cause, Lord Harcarse went down to the bar in his gown, and pleaded for his son-in-law Aytoun!
About that period a curious indirect means of influencing the judges began to be notorious. Each lord had a dependant or favourite, generally some young relative, practising in the court, through whom it was understood that he could be prepossessed with a favourable view of any cause. This functionary was called a Peat or Pate, from a circumstance thus related in Wilkes’s North Briton: ‘One of the former judges of the Court of Session, of the first character, knowledge, and application to business, had a son at the bar whose name was Patrick; and when the suitors came about, soliciting his favour, his question was: “Have you consulted Pat?” If the answer was affirmative, the usual reply of his lordship was: “I’ll inquire of Pat about it; I’ll take care of your cause; go home and mind your business.” The judge in that case was even as good as his word, for while his brother-judges were robing, he would tell them what pains his son had taken, and what trouble he had put himself to, by his directions, in order to find out the real circumstances of the dispute; and as no one on the bench would be so unmannerly as to question the veracity of the son or the judgment of the father, the decree always went according to the information of Pat. At the present era, in case a judge has no son at the bar, his nearest relation (and he is sure to have one there) officiates in that station. But, as it frequently happens, if there are Pats employed on each side, the judges differ, and the greatest interest—that is, the longest purse—is sure to carry it.’
I bring the subject to a conclusion by a quotation from the Court of Session Garland: ‘Even so far down as 1737 traces of the ancient evil may be found. Thus, in some very curious letters which passed between William Foulis, Esq. of Woodhall, and his agent, Thomas Gibson of Durie, there is evidence that private influence could even then be resorted to. The agent writes to his client, in reference to a pending lawsuit (23rd November 1735): “I have spoken to Strachan and several of the lords, who are all surprised Sir F[rancis Kinloch] should stand that plea. By Lord St Clair’s advice, Mrs Kinloch is to wait on Lady Cairnie to-morrow, to cause her ask the favour of Lady St Clair to solicit Lady Betty Elphingston and Lady Dun. My lord promises to back his lady, and to ply both their lords, also Leven and his cousin Murkle.[93] He is your good friend, and wishes success; he is jealous Mrs Mackie will side with her cousin Beatie. St Clair says Leven[94] has only once gone wrong upon his hand since he was a Lord of Session. Mrs Kinloch has been with Miss Pringle, Newhall. Young Dr Pringle is a good agent there, and discourses Lord Newhall[95] strongly on the law of nature,” &c.
‘Again, upon the 23rd of January 1737, he writes: “I can assure you that when Lord Primrose left this town, he stayed all that day with Lord J[ustice] C[lerk],[96] and went to Andrew Broomfield at night, and went off post next morning; and what made him despair of getting anything done was, that it has been so long delayed, after promising so frankly, when he knew the one could cause the other trot to him like a penny-dog when he pleased. But there’s another hindrance: I suspect much Penty[97] has not been in town as yet, and I fancy it’s by him the other must be managed. The Ld. J[ustice] C[lerk] is frank enough, but the other two are —— clippies. I met with Bavelaw and Mr William on Tuesday last. I could not persuade the last to go to a wine-house, so away we went to an aquavity-house, where I told Mr Wm. what had passed, as I had done before that to Bavelaw. They seemed to agree nothing could be done just now, but to know why Lord Drummore[98] dissuaded bringing in the plea last winter. I have desired Lord Haining to speak, but only expect his answer against Tuesday or Wednesday.”
‘It is not our intention to pursue these remarks further, although we believe that judicial corruption continued long after the Union. We might adduce Lord President Forbes as a witness on this point, who, one of the most upright lawyers himself, did not take any pains to conceal his contempt for many of his brethren. A favourite toast of his is said to have been: “Here’s to such of the judges as don’t deserve the gallows.” Latterly, the complaint against the judges was not so much for corrupt dealing, with the view of enriching themselves or their “pet” lawyer, but for weak prejudices and feelings, which but ill accorded with the high office they filled.
‘These abuses, the recapitulation of which may amuse and instruct, are now only matter of history—the spots that once sullied the garments of justice are effaced, and the old compend, “Show me the man, and I’ll show you the law,” is out of date.’