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.