We come a little later down, and in Braxfield we are in a narrower field, more local, more restricted, purely legal. Such as survive of the Braxfield stories are excellent. The locus classicus for the men of that time is Lord Cockburn’s Memorials. Cockburn, as we have yet to see, was himself a wit of the first water, and the anecdotes lost nothing by the telling. Braxfield was brutal and vernacular. One of “The Fifteen” had rambled on to little purpose, concluding,” Such is my opinion.” “Your opeenion” was Braxfield’s sotto voce bitter comment, better and briefer even than the hit of the English judge at his brother, “what he calls his mind.” Two noted advocates (Charles Hay, afterwards Lord Newton, was one of them) were pleading before him—they had tarried at the wine cup the previous night, and they showed it. Braxfield gave them but little rope. “Ye may just pack up your papers and gang hame; the tane o’ ye’s riftin’ punch and the ither belchin’ claret” (a quaint and subtle distinction!) “and there’ll be nae guid got out o’ ye the day.” As Lord Justice-Clerk, Braxfield was supreme criminal judge; his maxims were thoroughgoing. “Hang a thief when he is young, and he’ll no’ steal when he is auld.” He said of the political reformers: “They would a’ be muckle the better o’ being hangit,” which is probably the truer form of his alleged address to a prisoner: “Ye’re a vera clever chiel, man, but ye wad be nane the waur o’ a hanging.” “The mob would be the better for losing a little blood.” But his most famous remark, or rather aside, was at the trial of the reformer Gerrald. The prisoner had urged that the Author of Christianity himself was a reformer. “Muckle He made o’ that,” growled Braxfield, “He was hangit.” I suspect this was an after-dinner story, at any rate it is not in the report; but how could it be? It is really a philosophic argument in the form of a blasphemous jest. He had not always his own way with the reformers. He asked Margarot if he wished a counsel to defend him. “No, I only wish an interpreter to make me understand what your Lordship says.” The prisoner was convicted and, as Braxfield sentenced him to fourteen years’ transportation, he may have reflected, that he had secured the last and most emphatic word. Margarot had defended himself very badly, but as conviction was a practical certainty it made no difference. Of Braxfield’s private life there are various stories, which you can accept or not as you please, for such things you cannot prove or disprove. His butler gave him notice, he could not stand Mrs. Macqueen’s temper; it was almost playing up to his master. “Man, ye’ve little to complain o’; ye may be thankfu’ ye’re no married upon her.” As we all know, R. L. Stevenson professedly drew his Weir of Hermiston from this original. One of the stories he tells is how Mrs. Weir praised an incompetent cook for her Christian character, when her husband burst out, “I want Christian broth! Get me a lass that can plain-boil a potato, if she was a whüre off the streets.” That story is more in the true Braxfield manner than any of the authentic utterances recorded of the judge himself, but now we look at Braxfield through Stevenson’s spectacles. To this strong judge succeeded Sir David Rae, Lord Eskgrove. The anecdotes about him are really farcical. He was grotesque, and though alleged very learned was certainly very silly, but there was something irresistibly comical about his silliness. Bell initiated a careful series of law reports in his time. “He taks doun ma very words,” said the judge in well-founded alarm. Here is his exhortation to a female witness: “Lift up your veil, throw off all modesty and look me in the face”; and here his formula in sentencing a prisoner to death: “Whatever your religi-ous persua-sion may be, or even if, as I suppose, you be of no persuasion at all, there are plenty of rever-end gentlemen who will be most happy for to show you the way to yeternal life.” Or best of all, in sentencing certain rascals who had broken into Sir James Colquhoun’s house at Luss, he elaborately explained their crimes; assault, robbery and hamesucken, of which last he gave them the etymology; and then came this climax—“All this you did; and God preserve us! joost when they were sitten doon to their denner.”
JOHN CLERK, LORD ELDIN
The two most remarkable figures at the Scots bar in their own or any time were the Hon. Henry Erskine and John Clerk, afterwards Lord Eldin. Erskine was a consistent whig, and, though twice Lord Advocate, was never raised to the bench; yet he was the leading practising lawyer of his time, and the records of him that remain show him worthy of his reputation. He was Dean of the Faculty of Advocates, but he presided at a public meeting to protest against the war, and on the 12th January 1796 was turned out of office by a considerable majority. A personal friend of Erskine, and supposed to be of his party, yielded to the storm and voted against him. The clock just then struck three. “Ah,” murmured John Clerk, in an intense whisper which echoed through the quiet room, “when the cock crew thrice Peter denied his Master.” But most Erskine stories are of a lighter touch. When Boswell trotted with Johnson round Edinburgh, they met Erskine. He was too independent to adulate the sage but before he passed on with a bow, he shoved a shilling into the astonished Boswell’s hand, “for a sight of your bear,” he whispered. George III. at Windsor once bluntly told him, that his income was small compared with that of his brother, the Lord Chancellor. “Ah, your Majesty,” said the wit, “he plays at the guinea table, and I only at the shilling one.” In a brief interval of office he succeeded Henry Dundas, afterwards Lord Melville. He told Dundas he was about to order the silk gown. “For all the time you may want it,” said the other, “you had better borrow mine.” “No doubt,” said Harry, “your gown is made to fit any party, but it will never be said of Henry Erskine that he put on the abandoned habits of his predecessor.” But he had soon to go, and this time Ilay Campbell, afterwards Lord President, had the post, and again the gown was tossed about in verbal pleasantries. “You must take nothing off it, for I will soon need it again,” said the outgoer. “It will be bare enough, Henry, before you get it,” was the neat reply. Rather tall, a handsome man, a powerful voice, a graceful manner, and more than all, a kindly, courteous gentleman, what figure so well known on that ancient Edinburgh street, walking or driving his conspicuous yellow chariot with its black horses? Everybody loved and praised Harry Erskine, friends and foes, rich and poor alike. You remember Burns’s tribute: “Collected, Harry stood awee.” Even the bench listened with delight. “I shall be brief, my Lords,” he once began. “Hoots, man, Harry, dinna be brief—dinna be brief,” said an all too complacent senator—a compliment surely unique in the annals of legal oratory. And if this be unique, almost as rare was the tribute of a humble nobody to his generous courage. “There’s no a puir man in a’ Scotland need to want a friend or fear an enemy, sae long as Harry Erskine’s to the fore.” Not every judge was well disposed to the genial advocate. Commissary Balfour was a pompous official who spoke always ore rotundo: he had occasion to examine Erskine one day in his court, he did so with more than his usual verbosity. Erskine in his answers parodied the style of the questions to the great amusement of the audience; the commissary was beside himself with anger. “The intimacy of the friend,” he thundered, “must yield to the severity of the judge. Macer, forthwith conduct Mr. Erskine to the Tolbooth.” “Hoots! Mr. Balfour,” was the crushing retort of the macer. On another occasion the same judge said with great pomposity that he had tripped over a stile on his brother’s property and hurt himself. “Had it been your own style,” said Erskine, “you certainly would have broken your neck.”
Alas! Harry was an incorrigible punster. When urged that it was the lowest form of wit, he had the ready retort that therefore it must be the foundation of all other kinds. Yet, frankly, some of those puns are atrocious, and even a century’s keeping in Kay and other records has not made them passable. Gross and palpable, they were yet too subtle for one senator. Lord Balmuto, or tradition does him wrong, received them with perplexed air and forthwith took them to Avizandum. Hours, or as some aver, days after, a broad smile relieved those heavy features. “I hae ye noo, Harry, I hae ye noo,” he gleefully shouted; he had seen the joke! All were not so dull. A friend pretended to be in fits of laughter. “Only one of your jokes, Harry,” he said. “Where did you get it?” said the wit. “Oh, I have just bought ‘The New Complete Jester, or every man his own Harry Erskine.’ ” The other looked grave. He felt that pleasantries of the place or the moment might not wear well in print. They don’t, and I refrain for the present from further record. When Lord President Blair died suddenly on 27th November 1811, a meeting of the Faculty of Advocates was hastily called. Blair was an ideal judge, learned, patient, dignified, courteous. He is the subject of one of those wonderful Raeburn portraits (it hangs in the library of the Writers to the Signet), and as you gaze you understand how those who knew him felt when they heard that he was gone forever. Erskine, as Dean, rose to propose a resolution, but for once the eloquent tongue was mute: after some broken sentences he sat down, but his hearers understood and judged it “as good a speech as he ever made.” It was his last. He was neither made Lord President nor Lord Justice-Clerk, though both offices were open. He did not murmur or show ill-feeling, but withdrew to the little estate of Almondell, where he spent six happy and contented years ere the end.
Clerk was another type of man. In his last years Carlyle, then in his early career, noted that “grim strong countenance, with its black, far projecting brows.” He fought his way slowly into fame. His father had half humorously complained, “I remember the time when people seeing John limping on the street were told, that’s the son of Clerk of Eldin; but now I hear them saying, ‘What auld grey-headed man is that?’ and the answer is, ‘That is the father of John Clerk.’ ” He was a plain man, badly dressed, with a lame leg. “There goes Johnny Clerk, the lame lawyer.” “No, madam,” said Clerk, “the lame man, not the lame lawyer.” Cockburn says that he gave his client his temper, his perspiration, his nights, his reason, his whole body and soul, and very often the whole fee to boot. He was known for his incessant quarrels with the bench, and yet his practice was enormous. He lavished his fees on anything from bric-à-brac to charity, and died almost a poor man. In consultation at Picardy Place he sat in a room crowded with curiosities, himself the oddest figure of all, his lame foot resting on a stool, a huge cat perched at ease on his shoulder. When the oracle spoke, it was in a few weighty Scots words, that went right to the root of the matter, and admitted neither continuation nor reply. His Scots was the powerful direct Scots of the able, highly-educated man, a speech faded now from human memory. Perhaps Clerk was princeps but not facile, for there was Braxfield to reckon with. On one famous occasion, to wit, the trial of Deacon Brodie, they went at it, hammer and tongs, and Clerk more than held his own, though Braxfield as usual got the verdict. They took Clerk to the bench as Lord Eldin, when he was sixty-five, which is not very old for a judge. But perhaps he was worn out by his life of incessant strife, or perhaps he had not the judicial temperament. At any rate his record is as an advocate, and not as a senator. He had also some renown as a toper. There is a ridiculous story of his inquiring early one morning, as he staggered along the street, “Where is John Clerk’s house?” of a servant girl, a-“cawming” her doorstep betimes. “Why, you’re John Clerk,” said the astonished lass. “Yes, yes, but it’s his house I want,” was the strange answer. I have neither space nor inclination to repeat well-known stories of judicial topers. How this one was seen by his friend coming from his house at what seemed an early hour. “Done with dinner already?” queried the one. “Ay, but we sat down yesterday,” retorted the other. How this luminary awakened in a cellar among bags of soot, and that other in the guard-house; how this set drank the whole night, claret, it is true, and sat bravely on the bench the whole of next day; how most could not leave the bottle alone even there; and biscuits and wine as regularly attended the judges on the bench as did their clerks and macers. The pick of this form is Lord Hermand’s reply to the exculpatory plea of intoxication: “Good Gad, my Laards, if he did this when he was drunk, what would he not do when he’s sober?” but imagination boggles at it all, and I pass to a more decorous generation.
The names of two distinguished men serve to bridge the two periods. The early days of Jeffrey and Cockburn have a delightful flavour of old Edinburgh. The last years are within living memory. Jeffrey’s accent was peculiar. It was rather the mode in old Edinburgh to despise the south, the last kick, as it were, at the “auld enemy”; Jeffrey declared, “The only part of a Scotsman I mean to abandon is the language, and language is all I expect to learn in England.” The authorities affirm his linguistic experience unfortunate. Lord Holland said that “though he had lost the broad Scots at Oxford, he had only gained the narrow English.” Braxfield put it briefer and stronger. “He had clean tint his Scots, and found nae English.” Thus his accent was emphatically his own; he spoke with great rapidity, with great distinctness. In an action for libel, the object of his rhetoric was in perplexed astonishment at the endless flow of vituperation. “He has spoken the whole English language thrice over in two hours.” This eloquence was inconvenient in a judge. He forgot Bacon’s rule against anticipating counsel. Lord Moncreiff wittily said of him, that the usual introductory phrase “the Lord Ordinary having heard parties’ procurators” ought to be, in his judgment, “parties’ procurators having heard the Lord Ordinary.” Jeffrey, on the other hand, called Moncreiff “the whole duty of man,” from his conscientious zeal. All the same, Jeffrey was an able and useful judge, though his renown is greater as advocate and editor. Even he, though justly considerate, did not quite free himself from the traditions of his youth. He “kept a prisoner waiting twenty minutes after the jury returned from the consideration of their verdict, whilst he and a lady who had been accommodated with a seat on the bench discussed together a glass of sherry.” Cockburn, his friend and biographer, the keenest of wits, and a patron of progress, stuck to the accent. “When I was a boy no Englishman could have addressed the Edinburgh populace without making them stare and probably laugh; we looked upon an English boy at the High School as a ludicrous and incomprehensible monster:” and then he goes on to say that Burns is already a sealed book, and he would have it taught in the school as a classic. “In losing it we lose ourselves,” says the old judge emphatically. He writes this in 1844, nearly seventy years ago. We do not teach the only Robin in the school. Looked at from the dead-level of to-day his time seems picturesque and romantic: were he to come here again he would have some very pointed utterances for us and our ways, for he was given to pointed sayings. For instance, “Edinburgh is as quiet as the grave, or even Peebles.” A tedious counsel had bored him out of all reason. “He has taken up far too much of your Lordship’s time,” sympathised a friend. “Time,” said Cockburn with bitter emphasis, “Time! long ago he has exhaustit Time, and has encrotch’d upon—Eternity.” A touch of Scots adds force to such remarks. This is a good example.
JOHN INGLIS,
LORD PRESIDENT OF THE COURT OF SESSION
From a Painting in the Parliament House, by permission of the Faculty of Advocates