The Parliament House has always had a reputation for good anecdote. There are solid reasons for this. It is the haunt of men, clever, highly educated, well off, and the majority of them with an all too abundant leisure. The tyranny of custom forces them to pace day after day that ancient hall, remarkable even in Edinburgh for august memories, as their predecessors have done for generations. There are statues such as those of Blair of Avontoun and Forbes of Culloden, and portraits like those of “Bluidy Mackenzie” and Braxfield,—all men who lived and laboured in the precincts,—to recall and revivify the past, while there is also the Athenian desire to hear some new thing, to retail the last good story about Lord this or Sheriff that.
So there is a great mass of material. Let me present some morsels for amusement or edification. Most are stories of judges, though it may be of them before they were judges. A successful counsel usually ends on the bench, and at the Scots bar the exceptions are rare indeed. The two most prominent that occur to one are Sir George Mackenzie and Henry Erskine. Now, Scots law lords at one time invariably, and still frequently, take a title from landed estate. This was natural. A judge was a person with some landed property, which was in early times the only property considered as such, and in Scotland, as everybody knows, the man was called after his estate. Monkbarns of the Antiquary is a classic instance, and it was only giving legal confirmation to this, to make the title a fixed one in the case of the judges. They never signed their names this way, and were sometimes sneered at as paper lords. To-day, when the relative value of things is altered, they would probably prefer their paper title. According to tradition their wives laid claim to a corresponding dignity, but James V., the founder of the College of Justice, sternly repelled the presumptuous dames, with a remark out of keeping with his traditional reputation for gallantry. “He had made the carles lords, but wha the deil made the carlines leddies?” Popular custom was kinder than the King, and they got to be called ladies, till a newer fashion deprived them of the honour. It was sometimes awkward. A judge and his wife went furth of Scotland, and the exact relations between Lord A. and Mrs. B. gravelled the wits of many an honest landlord. The gentleman and lady were evidently on the most intimate terms, yet how to explain their different names? Of late the powers that be have intervened in the lady’s favour, and she has now her title assured her by royal mandate.
Once or twice the territorial designation bore an ugly purport. Jeffrey kept, it is said, his own name, for Lord Craigcrook would never have done. Craig is Scots for neck, and why should a man name himself a hanging judge to start with? This was perhaps too great a concession to the cheap wits of the Parliament House, and perhaps it is not true, for in Jeffrey’s days territorial titles for paper lords were at a discount, so that Lord Cockburn thought they would never revive, but the same thing is said of a much earlier judge. Fountainhall’s Decisions is one of those books that every Scots advocate knows in name, and surely no Scots practising advocate knows in fact. Its author, Sir John Lauder, was a highly successful lawyer of the Restoration, and when his time came to go up there was one fly in the ointment of success. His compact little estate in East Lothian was called Woodhead. Lauder feared not unduly the easy sarcasms of fools, or the evil tongues of an evil time. Territorial title he must have, and he rather neatly solved the difficulty by changing Woodhead to Fountainhall, a euphonious name, which the place still retains.
When James VI. and I. came to his great estate in England, he was much impressed by the splendid robes of the English judges. His mighty Lord Chancellor would have told him that such things were but “toys,” though even he would have admitted, they influenced the vulgar. At any rate Solomon presently sent word to his old kingdom, that his judges and advocates there were to attire themselves in decent fashion. If you stroll into the Parliament House to-day and view the twin groups of the Inner House, you will say they went one better than their English brothers.
SIR THOMAS HAMILTON, FIRST EARL OF HADDINGTON
From the Portrait at Tynninghame
A Scots judge in those times had not seldom a plurality of offices: thus the first Earl of Haddington was both President of the Court of Session and Secretary of State. He played many parts in his time, and he played them all well, for Tam o’ the Coogate was nothing if not acute. There are various stories of this old-time statesman. This shows forth the man and the age. A highland chief was at law, and had led his men into the witness-box just as he would have led them to the tented field. The Lord President had taken one of them in hand, and sternly kept him to the point, and so wrung the facts out of him. When Donald escaped he was asked by his fellow-clansman whose turn was to follow, how he had done? With every mark of sincere contrition and remorse, Donald groaned out, that he was afraid he had spoken the truth, and “Oh,” he said, “beware of the man with the partridge eye!” How the phrase brings the old judge, alert, keen, searching, before us! By the time of the Restoration things were more specialised, and the lawyers of the day could give more attention to their own subject. They were very talented, quite unscrupulous, terribly cruel; Court of Justice and Privy Council alike are as the house of death. We shudder rather than laugh at the anecdotes. Warriston, Dirleton, Mackenzie, Lockhart, the great Stair himself, were remarkable men who at once attract and repel. Nisbet of Dirleton, like Lauder of Fountainhall, took his title from East Lothian—in both cases so tenacious is the legal grip, the properties are still in their families—and Dirleton’s Doubts are still better known, and are less read, if that be possible, than Fountainhall’s Decisions. You can even to-day look on Dirleton’s big house on the south side of the Canongate, and Dirleton, if not “the pleasantest dwelling in Scotland,” is a very delightful place, and within easy reach of the capital. But the original Nisbet was, I fear, a worse rascal than any of his fellows, a treacherous, greedy knave. You might bribe his predecessor to spare blood, it was said, “but Nisbet was always so sore afraid of losing his own great estate, he could never in his own opinion be officious enough to serve his cruel masters.” Here is the Nisbet story. In July 1668, Mitchell shot at Archbishop Sharp in the High Street, but, missing him, wounded Honeyman, Bishop of Orkney, who sat in the coach beside him. With an almost humorous cynicism some one remarked, it is only a bishop, and the crowd immediately discovered a complete lack of interest in the matter and in the track of the would-be assassin. Not so the Privy Council, which proceeded to a searching inquiry in the course whereof one Gray was examined, but for some time to little purpose. Nisbet as Lord Advocate took an active part, and bethought him of a trick worthy of a private inquiry agent. He pretended to admire a ring on the man’s finger, and asked to look at it; the prisoner was only too pleased. Nisbet sent it off by a messenger to Gray’s wife with a feigned message from her husband. She stopped not to reflect, but at once told all she knew! this led to further arrests and further examinations during which Nisbet suggested torture as a means of extracting information from some taciturn ladies! Even his colleagues were abashed. “Thow rotten old devil,” said Primrose, the Lord Clerk Register, “thow wilt get thyself stabbed some day.” Even in friendly talk and counsel these old Scots, you will observe, were given to plain language. Fate was kinder to Dirleton than he deserved, he died in quiet, rich, if not honoured, for his conduct in office was scandalous even for those times, yet his name is not remembered with the especial detestation allotted to that of “the bluidy advocate Mackenzie,” really a much higher type of man. Why the unsavoury epithet has stuck so closely to him is a curious caprice of fate or history. Perhaps it is that ponderous tomb in Old Greyfriars, insolently flaunting within a stone-throw of the Martyrs’ Monument, perhaps it is that jingle which (you suspect half mythical) Edinburgh callants used to occupy their spare time in shouting in at the keyhole, that made the thing stick. However, the dead-and-gone advocate preserves the stony silence of the tomb, and is still the most baffling and elusive personality in Scots history. The anecdotes of him are not of much account. One tells how the Marquis of Tweeddale, anxious for his opinion, rode over to his country house at Shank at an hour so unconscionably early that Sir George was still abed. The case admitted of no delay, and the Marquis was taken to his room. The matter was stated and the opinion given from behind the curtains, and then a woman’s hand was stretched forth to receive the fee! The advocate was not the most careful of men, so Lady Mackenzie deemed it advisable to take control of the financial department. Of this dame the gossips hinted too intimate relations with Claverhouse, but there was no open scandal. Another brings us nearer the man. Sir George, by his famous entail act, tied up the whole land of the country in a settlement so strict that various measures through the succeeding centuries only gradually and partially released it. Now the Earl of Bute was the favoured lover of his only daughter, but Mackenzie did not approve of the proposed union. The wooer, however ardent, was prudent; he speculated how the estate would go if they made a runaway match of it. Who so fit to advise him as the expert on the law of entail? Having disguised himself—in those old Edinburgh houses the light was never of the clearest—he sought my lord’s opinion on a feigned case, which was in truth his own. The opinion was quite plain, and fell pat with his wishes; the marriage was duly celebrated, and Sir George needs must submit. All his professional life Mackenzie was in the front of the battle, he was counsel for one side or the other in every great trial, and not seldom these were marked by most dramatic incidents. When he defended Argyll in 1661 before the Estates, on a charge of treason, the judges were already pondering their verdict when “one who came fast from London knocked most rudely at the Parliament door.” He gave his name as Campbell, and produced what he said were important papers. Mackenzie and his fellows possibly thought his testimony might turn the wavering balance in their favour—alas! they were letters from Argyll proving that he had actively supported the Protectorate, and so sealed the fate of the accused. Again, at Baillie of Jerviswood’s trial in 1684 one intensely dramatic incident was an account given by the accused with bitter emphasis of a private interview between him and Mackenzie some time before. The advocate was prosecuting with all his usual bluster, but here he was taken completely aback, and stammered out some lame excuse. This did not affect the verdict, however, and Jerviswood went speedily to his death. The most remarkable story about Mackenzie is that after the Estates had declared for the revolutionary cause in April 1689, and his public life was over, ere he fled southward, he spent a great part of his last night in Edinburgh in the Greyfriars Churchyard. The meditations among the tombs of the ruined statesmen were, you easily divine, of a very bitter and piercing character. Sir George Lockhart, his great rival at the bar and late Lord President of the Court of Session, had a few days before been buried in the very spot selected by Mackenzie for his own resting-place, where now rises that famous mausoleum. Sir George was shot dead on the afternoon of Sunday 31st March in that year by Chiesly of Dalry in revenge for some judicial decision, apparently a perfectly just one, which he had given against him. Even in that time of excessive violence and passion Chiesly was noted as a man of extreme and ungovernable temper. He made little secret of his intention; he was told the very imagination of it was a sin before God. “Let God and me alone; we have many things to reckon betwixt us, and we will reckon this too.” He did the deed as his victim was returning from church; he said he “existed to learn the President to do justice,” and received with open satisfaction the news that Lockhart was dead. “He was not used to do things by halves.” He was tortured and executed with no delay, his friends removed the body in the darkness of night and buried it at Dalry, so it was rumoured, and the discovery of some remains there a century afterwards was supposed to confirm the story. The house at Dalry was reported to be haunted by the ghost of the murderer; it was the fashion of the time to people every remarkable spot with gruesome phantoms.
An anecdote, complimentary to both, connects the name of Lockhart with that of Sir James Stewart of Goodtrees (pronounced Gutters, Moredun is the modern name), who was Lord Advocate both to William III. and Queen Anne. An imposing figure this, and a man of most adventurous life. In his absence he was sentenced to death by the High Court of Justiciary. This was in 1684. The Lord Advocate (Bluidy Mackenzie to wit), after sentence, electrified the court by shouting out, that the whole family was sailing under false colours, “these forefault Stewarts are damned Macgregors” (the clan name was proscribed). And yet Mackenzie ought to have felt kindly to Stewart, as perhaps he did, and possibly gave him a hint when to make himself scarce. One curious story tells of Mackenzie employing him in London with great success in a debate about the position of the Scots Episcopal Church. Both Lockhart and Mackenzie confessed him their master in the profound intricacies of the Scots law. A W.S. once had to lay a case before Lockhart on some very difficult question. Stewart was in hiding, but the agent tracked him out, and got him to prepare the memorial. Sir George pondered the paper for some time, then he started up and looked the W.S. broad in the face, “by God, if James Stewart is in Scotland or alive, this is his draft; and why did you not make him solve your difficulty?” The agent muttered that he wanted both opinions. He then showed him what Stewart had prepared; this Lockhart emphatically accepted as the deliverance of the oracle. Stewart had a poor opinion of contemporary lawyers. Show me the man and I’ll show you the law, quoth he. Decisions, he said, went by favour and not by right. Stewart made his peace with James’s government, near the end, and though he did so without any sacrifice of principle, men nicknamed him Jamie Wilie. It seemed a little odd that through it all he managed to keep his head on his shoulders. A staunch Presbyterian, he was yet for the time a liberal and enlightened jurist, and introduced many important reforms in Scots criminal law. That it fell to him to prosecute Thomas Aikenhead for blasphemy was one of fate’s little ironies; Aikenhead went to his death on the 8th January 1697. The Advocate’s Close, where Stewart lived, and which is called after him, still reminds us of this learned citizen of old Edinburgh.
In the eighteenth century we are in a different atmosphere; those in high place did not go in constant fear of their life, they were not so savage, so suspicious, so revengful, they were witty and playful. On the other hand, their ways were strangely different from the monotonous propriety of to-day. Kames and Monboddo are prominent instances, they were both literary lawyers and constant rivals. Once Kames asked Monboddo if he had read his last book; the other saw his chance and took it, “No, my lord, you write a great deal faster than I am able to read.” Kames presently got his chance. Monboddo had in some sense anticipated the Darwinian theory, he was certain at any rate that everybody was born with a tail. He believed that the sisterhood of midwives were pledged to remove it, and it is said he watched many a birth as near as decency permitted but always with disappointing results. At a party he politely invited Kames to enter the room before him. “By no means,” said Kames, “go first, my lord, that I may get a look at your tail.” Kames had a grin between a sneer and a smile, probably here the sneer predominated. But perhaps it was taken as a compliment. “Mony is as proud of his tail as a squirrel,” said Dr. Johnson. He died when eighty-seven. He used to ride to London every year, to the express admiration and delight of George III. One wonders if he ever heard of the tradition that at Strood, in Kent, all children are born with tails—a mediæval jape from the legend of an insult to St. Thomas of Canterbury: he might have found this some support to his theory! On the bench he was like a stuffed monkey, but for years he sat at the clerks’ table. He had a lawsuit about a horse, argued it in person before his colleagues and came hopelessly to grief. You are bound to assume the decision was right, though those old Scots worthies dearly loved a slap at one another, and thus he would not sit with Lord President Dundas again; more likely, being somewhat deaf, he wished to hear better. He was a great classical scholar, and said that no man could write English who did not know Greek, a very palpable hit at Lord Kames, who knew everything but Greek. The suppers he gave at St. John Street, off the Canongate, are still fragrant in the memory, “light and choice, of Attic taste,” no doubt; but the basis you believe was Scots, solid and substantial. And they had native dishes worth eating in quaint eighteenth-century Edinburgh! The grotesque old man had a beautiful daughter, Elizabeth Burnet, whose memory lives for ever in the pathetic lines of Burns. She died of consumption in 1790, and to blunt, if possible, the father’s sorrow, his son-in-law covered up her portrait. Monboddo’s look sought the place when he entered the room. “Quite right, quite right,” he muttered, “and now let us get on with our Herodotus.” For that day, perhaps, his beloved Greek failed to charm. Kames was at least like Monboddo in one thing—oddity. On the bench he had “the obstinacy of a mule and the levity of a harlequin,” said a counsel; but his broad jokes with his broad dialect found favour in an age when everything was forgiven to pungency. He wrote much on many themes. If you want to know a subject write a book on it, said he, a precept which may be excellent from the author’s point of view, but what about the reader?—but who reads him now? Yet it was his to be praised, or, at any rate, criticised. Adam Smith said, we must all acknowledge him as our master. And Pitt and his circle told this same Adam Smith that they were all his scholars. Boswell once urged his merits on Johnson. “We have at least Lord Kames,” he ruefully pleaded. The leviathan frame shook with ponderous mirth, “Keep him, ha, ha, ha, we don’t envy you him.” In far-off Ferney, Voltaire read the Elements of Criticism, and was mighty wroth over some cutting remarks on the Henriade. He sneered at those rules of taste from the far north “By Lord Mackames, a Justice of the Peace in Scotland.” You suspect that “master of scoffing” had spelt name and office right enough had he been so minded. Kames bid farewell to his colleagues in December 1782 with, if the story be right, a quaintly coarse expression. He died eight days after in a worthier frame of mind—he wrote and studied to his last hour. “What,” he said, “am I to sit idle with my tongue in my cheek till death comes for me?” He expressed a stern satisfaction that he was not to survive his mental powers, and he wished to be away. He was curious as to the next world, and the tasks that he would have yet to do. There is something heroic about this strange old man.