If indeed any other proof, than a knowledge of the system, and a sight of the men, were wanted, to show how extremely convenient a tool those Scotch burghal magistrates are, in the hands of whatever party has the political influence in Scotland for the time, that proof would be found in the great pertinacity with which the official men of the Athens have fought for the preservation of the system, and the miserable sophistications to which they have been obliged to have recourse in order so to disguise it as that it might be at all palatable to the better informed or more liberal official men in England. Within the last thirty years, the burgesses of Scotland have made two strong and almost unanimous efforts to shake it off. They have shown how ruinous it is to themselves, how degrading to the magisterial office, and how ill in accordance with that freedom which England boasts. But the lords advocate and other keepers of—what shall I say?—Ay—their own places, have worked about it and about it; and “darkened counsel by words without knowledge,” till some unfortunate circumstance of the times has enabled them to couple the attempt at its destruction with that with which it has no connexion—sedition and rebellion against the British government. The one attempt was spoiled by the breaking out of the French Revolution, and the disturbances which at that time took place in Scotland; and the subsequent attempt failed in consequence of those grumblings of the people, which were occasioned by a time of scarcity of provisions and want of employment.
The state of the country representation, and the system of the burgh government, would be in themselves sufficient to lay the ministerial party in the Athens open to suspicion, and to fill the rest of the inhabitants with discontent. But these are heightened by other circumstances. The judges, and more especially the crown lawyers, have a power over the people of Scotland, at which Englishmen would stand aghast. The judges (no matter whether they exercise it or not) have, directly or indirectly, the power of nominating every one of the jury by which a Scotchman is tried,—or, if they have not this power in its full extent now, they had it till very lately. In the case of ordinary crimes, this power, though a theoretical imperfection, might not be very dangerous in practice,—because, in ordinary crimes, there is nothing to entice a judge away from the natural dictates and natural course of justice; but, in offences of a political description, the case must be different,—because all or at least a majority of the judges, being persons who, at some period of their lives, are helped forward by ministerial influence, cannot be supposed to be entirely divested of those feelings of gratitude which are natural to all classes and conditions of men.
The lord advocate of Scotland is, from the very nature of his office, much more a political character than any judge. In all questions between the King and his subjects, or between the people and the criminal law, he is not only the King’s principal officer, but the express representative of the King himself; and, except in the truly kingly and glorious attribute of granting pardon, he has more ample powers than the King has by the law of England. It is true, that, through the instrumentality of his attorney-general, the King can file warrants against such of his English subjects as are guilty of offences, tending to injure his person, or subvert his government, and bring them to trial without the intervention of a grand jury; and it is also true, that this power has been exercised in cases where neither the person nor the government of the King could have been in the smallest danger; but still, great as this power is in itself, and dangerous as the frequent exercise of it is to liberty, it is nothing in comparison of what the Scotch lord advocate possesses. The attorney-general is always understood to institute his proceedings in consequence of a representation from the sovereign himself, or from the great officers of the state; and, by law, it is strictly confined to what are called state offences. The lord advocate, on the other hand, is, of his own pleasure, and without necessary consultation with any one, not only the public prosecutor in all cases of trial, but the arbiter who decides who shall or shall not be tried; and, in the latter capacity, he, of the plenitude of his own power, performs all the functions of an English grand jury. When a crime, either against society or against the state, has been committed, or when a person is suspected of the one or the other description of crime, the procurator fiscal of the district or burgh, (who, in many instances, is an ignorant and bungling attorney, whose friends, or whose secret services, have procured that office for him, as much on account of his incapacity for making a decent living by the ordinary practice of his profession, as for any other reason,) takes “a precognition,” that is, a secret and inquisitorial examination of ex-parte evidence, which he transmits to the lord advocate as the ground upon which that officer may or may not proceed, just as he pleases. If it please the lord advocate that the party thus accused shall be indicted, he prepares the necessary instruments; and the trial must be begun, if the party accused shall petition the court for it, within forty days of his being imprisoned, and held to bail, and finished within other forty days; but in all cases which come before the lords of justiciary, either in their sessional court in the Athens, or at their periodical circuits in the different counties, the lord advocate is substantially both the public prosecutor and the grand jury that sends the case to trial. Where a special commission of oyer and terminer is issued for the trial of persons accused of high treason, a grand jury, of not fewer than seventeen, and not more than twenty-one, have a power of returning as true, or ignoring the bills of indictment, if twelve of their number shall be of that opinion. But, even with this limitation, the power of the lord advocate, more especially as relates to political offences, is such as to heighten the animosity, which the state of the elective franchise is calculated to produce, between the comparatively small portion of the Scottish people who are influenced by the hope or possession of office, and the much larger portion who are under no such influence.
The distance of the Athens from the seat of the executive and legislative powers of the empire; and the colouring which it is possible that a representation may receive from those who carry it to headquarters, also tend to lessen the confidence which the people of Scotland might otherwise be disposed to place in the men who form as it were the official links of connexion between them and their King; and when it is considered how much connexion and influence can do even at headquarters, it is easy to imagine how much greater their extent must be at such an outpost as the Athens.
There would be no end of a statement of the complaints which I found the independent Caledonians had to make against their delegated authorities. From what I saw in the Athens, and from what I heard in my excursion over the country, I could plainly discover that the people of Scotland are perhaps more uniformly and more sincerely devoted to all the better parts of the constitution, and to the person and family of the King, than the people of England; but I could at the same time perceive that they felt towards the immediate holders of Scottish power and office, a much stronger dislike than is to be found in England. At the same time, they all seemed anxious to make it appear that those official men wished to identify themselves, and even their failings, so much with the general government of the country, that they were ever ready to denounce accusations against themselves as attacks on the government; and many instances were mentioned to me in which a very excusable, and, as I would have thought, a very deserved ridicule of a small man of office, had been considered and represented as the very next step to levying war upon the King.
The tendency which the Athenians have to make themselves, their sayings, and their doings, the grand objects of thought and conversation, helps to give currency and additional bitterness to this political rancour. If a scrap of paper which a procurator fiscal cannot read, or a sharp instrument of which a loyal magistrate cannot exactly understand the use, happen to be found in any district, more especially in any of the populous and manufacturing districts of Scotland, the chance is, that if there be any symptom in the public mind which sophistry can twist into an attitude of irritation, the one shall find its way to the Athens as a seditious circular, and the other as a rebellious pike. The official men of the Athens have no great knowledge of articles of these descriptions, and as of late years the lords advocates in particular have not only been a very sensitive and vigilant race, but have been of those mental dimensions which are the better for a discovery or two to give them importance, there have, during those years, been things suspected of rebellious propensities, which would have been regarded as quite harmless in any other part of the island. A merchant who has extensive dealings with Russia, and who is also concerned in the north sea whale fishing, informed me that in the memorable year 1819, a few letters written in the Russian character, and two dozen of harpoons, were taken from his warehouse with great ceremony, forwarded to Edinburgh at considerable expense, and, as he supposed, cost the authorities there, not only much profound cogitation among themselves, but an application to the secretary of state, ere they were sent back to him. Indeed, were I to recount all the transactions of this description that were mentioned to me during my residence in Scotland, I should fill several volumes with instances of the lamentable and ludicrous effects of uninformed zeal in official men: to record such matters would, however, be an attempt to preserve the memory of persons and things which no effort could keep from oblivion.
In the peculiar politics of the Athens, it struck me, that though there are only two parties,—the men in office, with their connexions and dependants, and the men who are not in office,—yet that there are several distinct grounds of opposition, some of which neither party are very willing to avow, and therefore they lump them all together in the convenient cant terms of Tory and Whig. Both parties are radically and substantially loyal; and both parties, though in different degrees, and sought for by different measures, may have a regard for the prosperity of their country generally, and for the glory and aggrandizement of the Athens, in a particular and pre-eminent degree; but still, their wars of the tongue, and the unpleasant inroads which these wars make upon domestic prosperity and happiness, are just as unpleasant as though the one party were about to draw the sword for absolute despotism, and the other for blind and indiscriminate democracy.
The Athenian Tories are perhaps the most place-devoted race in the British dominions. Office is their god; and, as is sometimes the case with other devotees, their devotion is fervent in proportion to the feeling they have of their own unworthiness. In defence of that which they worship, they have no more variety of voice than the winged warders of the Roman capitol. Hence, as I said of the burghal magistracies, they cling to each other, and by that very means separate themselves more from the people than the necessity of the case requires. Their strength consists, mainly, in those imperfections of the elective franchise, and powers of the law officers of the Crown, to which I have alluded; and as those cannot well be defended in argument, eloquence is of little use to them, and they seem to have no great partiality for those who possess it. When they make an attack as a body, in any other way than through the instrumentality of the law, (which they can employ only when the waters of society are a little troubled,) they do it snugly and covertly,—by letting people feel that they have the dispensing of rewards; by standing between a candidate and an office for which he is qualified, or by something of a similar kind. I was told that, at one period, and that not a very remote one, they would hit a man whose politics they did not like, through the medium of his banker; but latterly, the will or the power, or at any rate the practice of this, has been lessened, if not abolished.
At some periods, indeed, they have shown direct hostilities: they have spoken and written with considerable loudness, and considerable license; but the system, at least the local system, of which they have undertaken the championship, has not furnished them with sound principles or satisfactory arguments; and their mode of conducting themselves has shown that they were deficient both in skill and in tact. They have been exposed, certainly, and ashamed of themselves, very possibly.