Charles, Earl of Hopetoun,[[348]] set forth in a petition to the Privy Council, that in his minority, many years ago, his tutors had caused a windmill to be built at Leith for grinding and refining the ore from his lead-mines. In consequence of the unsettling of a particular bargain, the mill had been allowed to lie unused till now, when it required some repair in order to be fit for service. |1704.| One John Smith, who had set up a saw-mill in Leith, being the only man seen in this kind of work, had been called into employment by his lordship for the repair of the windmill; but the wright-burgesses of Edinburgh interfered violently with the work, on the ground of their corporation privileges, ‘albeit it is sufficiently known that none of them have been bred to such work or have any skill therein.’ Indeed, some part of the original work done by them had now to be taken down, so ill was it done. It was obviously a public detriment that such a work should thus be brought to a stand-still. The Council, entering into the earl’s views, gave him a protection from the claims of the wright-burgesses.
Feb.
It is notorious that the purity of the Court of Session continued down to this time to be subject to suspicion. It was generally understood that a judge favoured his friends and connections, and could be ‘spoken to’ in behalf of a party in a suit. The time was not yet long past when each lord had a ‘Pate’—that is, a dependent member of the bar (sometimes called Peat), who, being largely fee’d by a party, could on that consideration influence his patron.
A curious case, illustrative of the character of the bench, was now in dependence. The heritors of the parish of Dalry raised an action for the realisation of a legacy of £3000, which had been left to them for the founding of a school by one Dr Johnston. The defender was John Joissy, surgeon, an executor of the testator, who resisted the payment of the money on certain pretexts. With the assistance of Alexander Gibson of Durie, a principal clerk of Session, Joissy gained favour with a portion of the judges, including the president. On the other hand, the heritors, under the patronage of the Earl of Galloway, secured as many on their side. A severe contest was therefore to be expected. According to a report of the case in the sederunt-book of the parish, the Lord President managed to have it judged under circumstances favourable to Joissy. The court having ‘accidentally appointed a peremptor day about the beginning of February 1704 for reporting and deciding in the cause, both parties concluded that the parish would then gain it, since one of Mr Joissy’s lords came to be then absent. For as my Lord Anstruther’s hour in the Outer House was betwixt nine and ten of the clock in the morning, so the Earl of Lauderdale, as Lord Ordinary in the Outer House, behoved to sit from ten to twelve in |1704.| the forenoon: for by the 21st act of the fourth session of the first parliament of King William and Queen Mary, it’s statuted expressly, that if the Lord Ordinary in the Outer Houses sit and vote in any cause in the Inner House after the chap of ten hours in the clock, he may be declined by either party in the cause from ever voting thereafter therintill: yet such was the Lord President’s management, that so soon as my Lord Anstruther returned from the Outer House at ten of the clock, and that my Lord Lauderdale was even desired by some of the lords to take his post in the Outer House in the terms of law: yet his lordship was pleased after ten to sit and vote against the parish, the president at that juncture having put the cause to a vote.’
The heritors, by the advice of some of the lords in their interest, gave in a declinature of Lord Lauderdale, on the ground of the illegality of his sitting in the Inner House after ten o’clock; whereupon, next morning, the Lord President came into the court in a great rage, demanding that all those concerned in the declinature should be punished as criminals. The leading decliner, Mr Ferguson of Cairoch, escaped from town on horseback, an hour before the macer came to summon him. The counsel, John Menzies of Cammo, and the agent, remained to do what they could to still the storm. According to the naïve terms of the report, ‘the speat [flood] was so high against the parish and them all the time, that they behoved to employ all their friends, and solicit a very particular lord that morning before they went to the house; and my Lord President was so high upon’t, that when Cammo told him that my Lord Lauderdale, contrair to the act of parliament, sat after ten o’clock, his lordship unmannerly said to Cammo, as good a gentleman as himself, that it was a damned lie.’
Menzies, though a very eminent counsel, and the agent, found all their efforts end in an order for their going to jail, while a suitable punishment should be deliberated upon. After some discussion, a slight calm ensued, and they were liberated on condition of coming to the bar as malefactors, and there begging the Earl of Lauderdale’s pardon. The parish report states that no remedy could be obtained, for ‘the misery at that time was that the lords were in effect absolute, for they did as they pleased, and when any took courage to protest for remeid of law to the Scots parliament, they seldom or never got any redress there, all the lords being still present, by which the parliament |1704.| was so overawed that not ane decreit among a hundred was reduced.’[[349]]
It is strange to reflect, that among these judges were Lord Fountainhall and Lord Arniston, with several other men who had resisted tyrannous proceedings of the old government, to their own great suffering and loss. Wodrow promises of Halcraig, that, for his conduct regarding the test in 1684, his memory would be ‘savoury.’ The same author, speaking of the set in 1726 as dying out, says he wishes their places may be as well filled. ‘King William,’ he says, ‘brought in a good many substantial, honest country gentlemen, well affected to the government and church, and many of them really religious, though there might be some greater lawyers than some of them have been and are. But, being men of integrity and weight, they have acted a fair and honest part these thirty years, and keep the bench in great respect. May their successors be equally diligent and conscientious!’[[350]] Of course, by fairness and honesty, Wodrow chiefly meant soundness in revolution politics, and steadfast adherence to the established church.
Another instance of the vigorous action of the Lords in the maintenance of their dignity occurred in December 1701. A gentleman, named Cannon of Headmark, having some litigation with the Viscount Stair and Sir James Dalrymple, his brother Alexander, an agent before the court, used some indiscreet expressions regarding the judges in a paper drawn up by him. Being called before the Lords, and having acknowledged the authorship of the paper, he was sent to prison for a month, ordered then to crave pardon of the court on his knees, and thereafter to be for ever debarred from carrying on business as an agent.[[351]]
Some letters regarding a lawsuit of William Foulis of Woodhall in 1735–37, which have been printed,[[352]] shew that it was even then still customary to use influence with the Lords in favour of parties, and the female connections appear as taking a large share in the business. One sentence is sufficient to reveal the whole system. ‘By Lord St Clair’s advice, Mrs Kinloch is to wait on Lady Cairnie to-morrow, to cause her to ask the favour of Lady St Clair to solicit Lady Betty Elphinston and Lady Dun’—the former being the wife of Lord Coupar, and the |1704.| latter of Lord Dun, two of the judges. Lord St Clair’s hint to Mrs Kinloch to get her friend to speak to his own wife—he thus keeping clear of the affair himself—is a significant particular. Lord Dun, who wrote a moral volume, entitled Advices,[[353]] and was distinguished for his piety, is spoken of by tradition as such a lawyer as might well be open to any force that was brought to bear upon him. The present Sir George Sinclair heard Mr Thomas Coutts relate that, when a difficult case came before the court, where Lord Dun acted alone as ‘ordinary,’ he was heard to say: ‘Eh, Lord, what am I to do? Eh, sirs, I wiss ye wad mak it up.’
It will be surprising to many to learn that the idea of having ‘friends’ to a cause on the bench was not entirely extinct in a reign which people in middle life can well recollect. The amiable Charles Duke of Queensberry, who had been the patron of Gay, was also the friend of James Burnett of Monboddo, and had exacted a promise that Burnett should be the next person raised to the bench. ‘On Lord Milton’s death (1767), the duke waited on his majesty, and reminded him of his promise, which was at once admitted, and orders were immediately given to the secretary of state [Conway] to make out the royal letter. The lady of the secretary was nearly allied to the family of Hamilton, and being most naturally solicitous about the vote which Mr Burnett might give in the great cause of which he had taken so much charge as a counsel, she and the Duchess of Hamilton and Argyle were supposed to have induced their brother-in-law, Mr Secretary Conway, to withhold for many weeks the letter of appointment, and is even supposed to have represented Mr Burnett’s character in such unfavourable colours to the Lord Chancellor Henley, that his lordship is reported to have jocosely declared, that if she could prove her allegations against that gentleman, instead of making him a judge, he would hang him. This delay gave rise to much idle conjecture and conversation in Edinburgh, and it was confidently reported that Mr Burnett’s appointment would not take place till after the decision of the Douglas cause. Irritated by these insinuations against his integrity, he wrote to the Duke of Queensberry, declaring that if his integrity as a judge could be questioned in this cause, he should positively refuse to be trusted with any other; and so highly did he resent the opposition made by the secretary to his promotion, that he took measures for |1704.| canvassing his native county, in order to oppose in parliament a ministry who had so grossly affronted him. The Duke of Queensberry, equally indignant at the delay, requested an audience of his majesty, and tendered a surrender of his commission as justice-general of Scotland, if the royal promise was not fulfilled. In a few days the letter was despatched, and Lord Monboddo took his seat in the court.’[[354]]