The Modern Athens / A dissection and demonstration of men and things in the Scotch Capital.

by Robert Mudie

From the way in which the Scottish courts of law are regulated, there is hardly a suit from the Solway Firth to the Pentland, or from Peterhead to the remotest of the Hebudæ, which does not look toward the Athens, the moment that the litigiousness of a client, or the machinations of an attorney, call it into existence. I hinted already, that there is no one thing in which the Athens can now retain a superiority except the practice of Scotch law; and, as Scotland increases in wealth, that law is so constructed, that the portion which the scribes and spouters of the Athens shall be enabled to levy upon their countrymen must always increase in a greater ratio. Scotchmen are apt to be proud of the Athens,—to regard her with a portion at least of that admiration which subjects pay to the pomp of their kings. There is propriety in this; for there is scarcely a stone in the walls of the Athenian palaces, or a decent coat in her streets, which has not been squeezed out of some litigious or unfortunate man of the provinces, in the shape of a lawyer’s fee. I noticed the power which the crown lawyers of Scotland have over the liberties and lives of the people; and the power which lawyers of another class have over the fortunes of the Scotch lairds, is every jot as ruinous and humiliating. There are complaints in England, that when once property gets into chancery, the “infant” becomes grey before he can enjoy it; but the Scottish chancery is incalculably worse; for the moment that a Scotch proprietor allows his lands to pass into the keeping of an Edinburgh agent, from that moment he must lay his account either with losing them altogether, or purchasing them anew; and to enumerate the heirs of Scottish families, who are at any time pining away in heart-broken obscurity, or toiling under the burning suns of the East or the West, in the hope of winning back a poor fragment of the ample heritage to which they were born, would require no trifling succession of pages.

It cannot indeed be otherwise. According to the definition of the political economists, law is not only unproductive labour in itself, but wherever it clutches its talons, it tears away the funds by which more valuable labour should be supported, and distracts and lacerates the spirit by which those funds should be applied. When a Scotchman from the country visits the Athens, and sees a long line of costly buildings mounting up in the air, he may rest assured, that for every shilling that those buildings cost, and every shilling that shall be spent in them, he and his compatriots must pay. The Athens herself,—the overtopping and overwhelming part of the Athens,—that part which rises by the power, and extends itself by the weight, of the law, produces nothing whatever. It is as sterile as the Castle rock; and, were it not for the folly of other people, its ascendency would not be so great as it makes the Athens feel. This, however, is a matter for the Scotch themselves; and it sometimes happens, with nations as well as with individuals, that a deformity or a vice is praised and cherished, while beauties and virtues are treated with neglect.

It is matter of trite remark, that very few of the seed of Jacob have ever taken up their abode in the Athens, and that the few who have done so, have in a short time been starved to death or to removal; and it has sometimes been wondered why a people, who have been so successful in pillaging the other nations of Europe, should have failed so completely in this instance. A very slight acquaintance with the Athenian “men of business,” as they are called, will explain the fact, and resolve the difficulty. The man of business has all the natural rapacity and cunning of the Jew, and he is at the same time so well conversant with every quirk and turn of the law, that there is no possibility of calling him to account for his depredations.

Those hounds usually pursue their game in couples. There is one who is called “the dining partner,” whose business it is to watch for every inexperienced or expensive man of property, who happens to be spending a few days in the Athens, get invited to the same party with him, ply him with flattery, and when his weak side is once discovered, inflame his vanity upon that. Toward the close of the party, when the wine has circulated with that abundance and rapidity which are common in such cases, the dining partner becomes large in his professions of friendship. The victim swallows the bait with avidity; a meeting takes place in the kennel of the hounds next morning; and a loan of a few thousand pounds, being upon a first security, is negotiated in a manner which is quite fair and equitable; but the men of the law, when they go down to “take their infeftment” over the lands, contrive to suggest so many improvements that the supply is speedily exhausted; and, as it has created much more appetite than it has satisfied, another and a larger supply becomes necessary. The terms of this are a little different: money, which was in profusion upon the first occasion, is now difficult to be had. More than the legal interest would invalidate the security; but matters may be so managed, as to give a bond for payment of the interest, and repayment of the principal of fifteen thousand pounds, while ten thousand only is advanced. The gates of ruin are now fairly opened; loan follows after loan, till the whole value of the lands be mortgaged, and the whole rents consumed in interest; and when matters have come to this situation, the men of business press a sale at a time which they know to be disadvantageous, and thus get into their own possession property, upon the improvement of which almost the whole of the sums advanced by them have been expended,—are, in short, much in the same situation as if they had got a present of the lands, and only laid out a few thousand pounds for their improvement. It is not the object of the men of business to retain a great deal of property in land; so they divide the lands into lots, sell them at a handsome profit, and retain the freehold qualifications, either to promote their own political interest, or to part with them for large sums in the event of a disputed election,—a matter which they are often known to bring about for this very purpose. Such are some of the blessings which the legal men of the Athens bestow upon their country, in return for the fees with which it has previously fattened them.

But, notwithstanding many examples of this kind, there remains among that part of the Athenian lawyers, who go by the name of “men of business,” no small degree, both of talent and of integrity, while, among the “men of profession,”—the advocates, or members of the Scotch bar, there are a few, for the reasons that were formerly stated, the very choicest spirits, not of the Athens merely, but of all Scotland. Though the occasions upon which these persons display their eloquence be merely of a private nature,—though a very large proportion of them have no eloquence to display, or no opportunity for displaying it; yet the profession of advocate is the only one in Scotland which makes the professor of it a gentleman; and among the people of the Athens, of all classes, the special pleaders before the Courts of Session and Justiciary,—the supreme civil and criminal courts of Scotland, take a deeper hold of the public mind in the Athens, and engross a greater share of the public attention, than the orators of St. Stephen’s do in the British Metropolis.

One reason of this may be the way in which the different courts are blended together, and in which business is conducted. The Court of Session is a court of equity, as well as a court of law; and this is extremely favourable for the pleader, as the two characters blended together in the same oration give it a rich and popular character, which it can never have in the stiff formality of the English courts. Great part of the pleadings, too, are written; and this not only keeps the inferior speakers from lowering the general tone of the bar, but enables the more celebrated to confine themselves to such general arguments as are best calculated for oratorical display. Another thing: criminal trials, which are ever the most interesting to the public, are not managed by the fag-end of the law, as at the Old Bailey; and the counsel for the prisoner is not limited to legal exceptions in the course of the trial, cross-questionings of witnesses, and motions in arrest of judgment and mitigation of punishment, after the jury have returned their verdict, and are beyond the reach of his eloquence, however touching or powerful. In the Scotch criminal court, whether in the Athens or at the provincial assizes, the law itself takes care that the prisoner, whatever be his crime, shall have the aid of counsel; and if the crime be remarkable, either from its enormity or on account of the character or rank of the party accused, then the very first counsel at the bar are ranged on his side. These are allowed full scope, both to attack the form of the case in limine, and to throw every suspicion upon the evidence, and make every appeal to the judgments and passions of the jury, that ingenuity can suggest, or eloquence apply. The official men who have the conducting of the prosecution, are not only, generally speaking, men of much smaller abilities than those who have the conducting of the defence, but upon political grounds, as well as from that general aversion which men have to the sanguinary operations of the law, the feeling of the public is opposed to them, and in favour of their antagonists.

There was nothing, indeed, with which I ever was better pleased, or in which I felt Old England so much inferior to her northern neighbour, as in the conducting of criminal trials. One who is in the habit of looking in at that great suttling-house for the gallows, the Old Bailey,—who sees the hurried manner in which the life of a man is, perhaps justly enough, sworn away,—who listens to the few seconds of advice, and the few trifling questions put by the counsel to whom the poor culprit has given the last shilling that he could beg from his weeping relations,—who marks the anxiety of the counsel till the case shall come to that point at which he may coldly abandon his miserable client—the very point at which an appeal to the jury might turn the scale,—cannot but feel, when he witnesses the slow and pathetic solemnity of the Scotch courts, that he is among pleaders of other powers. A case which brings even Theisseger to the bar, is one of no common importance, and one never by any chance finds the powers of Brougham, or the acuteness of Scarlett, come in to save a poor man from death. But when I was in the Athens, there was only one trial for a capital crime, and yet the legal sagacity of Moncrieff, and the burning eloquence of Jeffrey, were exerted for full two hours, on behalf of the prisoner; and exerted, too, in such a manner as convinced me that the fee must have been the very least part of their inducement. I never heard objections put with so perfect a knowledge both of the general principles of law, or the specialities of the particular case, or evidence so scientifically dissected, as were done by the former; and the appeal of Jeffrey to the feelings of the jury, and even to those of the judges, was one of the finest things I ever heard. There are many men far more learned in the law than this celebrated Scotchman; and many who can take a far more sweeping and comprehensive view of a subject; but all the little sallies of which his speech consisted, were as sharp as needles and as shining as diamonds. Their brilliancy made you open your bosom to receive them, and their keenness was such that they would have pierced their way in spite of you. Their effect upon the crowded spectators, and upon the jury, was tremendous; nor was the lord justice clerk himself, who seemed not only a very proud and consequential person in himself, but by no means a hearty admirer of the barrister, able to resist the influence. Whenever Jeffrey tore away a pillar of the evidence against his client, and clenched the advantage by an appeal to those passions which he seemed to know so well how to touch, there was a general hum of satisfaction in the crowd; the jurors looked up with eyes of new hope, as much as to say, “we shall be able to acquit him yet;” and the judge relaxed a little of the lofty severity of his countenance.

Another cause why the people of the Athens, and of Scotland generally, set so high a value upon the Athenian advocates, may be that they are the only class of persons among whom public speaking is so much as known. I do not mean to say that the Scotch have no talents for this kind of display. Quite the reverse; for instead of taciturnity, which their supposed cautious character would lead one to set down as their leading propensity, they are the most loquacious people,—I mean the longest-winded people that ever I met with; having, in their common conversation, ten times as much badinage and ornament as the English, and ten times more concatenation of ideas than the Irish.

But they have no subject to excite public speaking, and no occasion upon which to exercise it. Elections they have none, not even so much as a parish-meeting, or a wardmote. The only persons among them that have the privilege of electing even their own local managers, are “the Trades,” or little corporations of artificers, in the royal burghs, who annually choose “deacons;” but they usually do this more by the eloquence of liquor than of words, and as the deacons are commonly a sort of pack-horses to the burghal corporation, they fall into most of the sensual and senseless vulgarity which are the characteristics of it. Churches and hospitals supported by voluntary contribution, at the annual festivals of which the contributors may make speeches, there are none. Indeed, unless a Scotchman were to stand on a hill-side and address the wind, or on the sea-shore and address the waves, he has no scope for oratory; and thus, come from what part of the country he may, the pleadings before the courts at the Athens, are quite a novelty to him, and he runs after and admires them as such. Thus the total absence of all eloquence throughout the country, makes a very small portion of it obtain distinction in the Athens.

Curious as it is to find a city where every soul is so much absorbed by the law, that men and women, girls and boys, of all ages and all conditions of life, season their common speech with the slang of legal phrases, and destructive of not only all literary and liberal taste, but of all the joyous intercourse of life, as it is to hear every night a rehearsal of Jeffrey’s sarcasm, or Cockburn’s joke of the morning; yet the Parliament-house of the Athens is a spirit-stirring scene, and very delightful, compared with the gloomy desolation of Westminster-hall.