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THE young advocate was
expected to give attendance at Circuit Courts for three years after he
entered on his professional life. Too often in those days there was no
proper care taken by the agents for the poor to arrange for the defence of
prisoners who could not afford to fee a lawyer. It was not an uncommon thing
for a prisoner to be placed at the Bar without his having any agent or
counsel appearing for him, and the judge had to ask an advocate who happened
to be present to take up the case, which of course he could only do in the
most perfunctory manner, having no information whatever before him. Such a
thing has happened at a Circuit as there being no advocate present, and the
Court appointing the sheriffs to defend, each taking the cases of his
colleague's county. A most amusing incident occurred at a trial where the
judge requested the only counsel who happened to be present to take up a
case, He was a small and very boyish-looking person, and the prisoner, after
looking at him, jerked his thumb towards him and asked the judge: "Am I to
be defended by that laddie there?" "Yes,' said his lordship, "Mr.-- has
kindly undertaken to act for you." The prisoner looked again, and, turning
to the Bench with a shrug of his shoulders, said: "Aweel, I think I'd better
jist plead guilty!" Things are much better arranged now, as the agents for
the poor are informed what counsel are to attend the Circuit, and the
business is properly distributed.
In those days when
lndictments were long and full of elaborate alternatives as to place, time,
and manner of alleged offences, the prisoner's counsel was often able to
raise plausible, and on many occasions successful, obiection to relevancy,
adding greatly to the cost of prosecutions, and causing much delay to the
administration of justice. The only countervailing good was that the
opportunities for objection tended to sharpen the wits, and to give chances
for addressing the Bench, to which the young counsel require to become
accustomed, so as to be at ease and free from nervousness. I can vouch for
it that in my own case it was some time before I could go up to a Bar to
make the simplest motion without a coldness about the wrists which told of
heart strain.
The Circuit Courts were in
the days before travelling by rail became common, very different functions
from what they are now. The journeys of the judges were of the nature of
progresses. The hospitality of the landed gentry was extended to them as
they made long stages by road— taking four days between Edinburgh and
Inverness—and the county gentlemen had the satisfaction their then more
isolated state, of getting the news of the city from those they entertained.
The day on which the Court opened its proceedings the landed proprietors in
the neighbourhood attended a levee, and a dinner was held in the evening.
This association between the Bench and the county gentry at times of Circuit
has gradually ceased, The Circuit Court is no longer looked upon as an event
in the life of the county. Gentlemen do not come to the Circuit town to wait
on the judges, and the idea which used formerly to prevail that the
procession through the streets tended to strike terror into evildoers, is no
longer held by sensible people.
In former days, as Lord
Cockburn tells us, royal proclamation was made, ordering the magistrates and
gentry to attend, but this is never done now. Even in the early part of the
last century he could say, "Hardly one of them does so now." Thus the tunes
have totally changed. He speaks of the "sneers" of the crowd, as day after
day the two judges processed on foot through the streets in wet as well as
dry weather, the Red Lords' gowns badly protected by umbrellas, and the
skirts held up out of the mud like ladies' dresses. He adds, "We have taken
to carriages and cavalry at Glasgow now. I hope to see the neighing steeds
dispensed with soon: but as to this I am at present solitary." He felt so
strongly on the point that, speaking of an occasion when there was no
procession because of the extreme badness of the weather, he says, "The
dignity of justice would be increased if it always rained."
Queer things happened :n my
own time in consequence with these processions. The sheriffs, some time
after I came to the Bar, resolved to present themselves in Court dress, a
thing that had not been done for many years. At one Circuit which I attended
the senior sheriff was delicate, and his wife came down to the Circuit town
with him to take care of him. The other sheriff was not very precise as to
his costume. The procession took place on foot, the morning was cold, and
the careful wife would not allow her husband to expose himself in a thin
Court coat. The spectacle which the sheriffs presented as they stepped into
the street from the hotel was—first, a sheriff in a Court hat, a Court coat
with lace, covered partially by a short drab overcoat, from below which
protruded his tails and a sword; second, a sheriff in an ordinary tall hat,
a Court coat, with a sword at one side and a gampisb umbrella at the other!
This formed a part of what was supposed to "strike terror into evil-doers'!
I will confess that before I
read Lord Cockburn's remarks I had come to the same conclusion. It has long
been borne in upon me that the ceremonial outside the Circuit Court has come
to be an anachronism, which it could serve no useful purpose to continue in
practice, and that it would be better that the Court when on Circujt should
proceed to business, just as it does in Edinburgh. It has always seemed to
me to be an extraordinary idea that if the procession of the judges strikes
terror into evil-doers in Glasgow, Perth, or Dundee, why a great city like
Edinburgh should not have this valuable aid to the prevention of crime. In
truth, the effort to keep up this unnecessary ceremonial is an effort for
show only, without any good effect of any kind. And that this an effort
there can be no doubt. I was once at a small Circuit: town at which I could
not but come to the conclusion that the innkeeper had canvassed to bring
uppractically all the dress coats in the place, so as to swell the bill for
entertainment in the evening. But the most ludicrous pretence of stately
entry into a Circuit town occurred on one occasion when I was retained in a
case and had arrived in the afternoon for the Circuit next day. As I was
taking a walk there passed me on the road a postilion and a pair of horses
leaving the town. Shortly afterwards I saw the same postilion arrive at the
hotel door, riding in front of a pair of horses driven from the box of a
carriage in which the judge was seated. That his lordship might enter in
style, the postilion had been sent a short way round a corner to meet the
two horse carriage, and to turn the team of two into a team of four, making
behave that the judge was posting in style with four horses!
The ceremonia! of the morning
was followed by a dinner in the evening, which often took place at midnight
or even later, as the Court sat on.
The unfortunate starving
guests were kept waiting with what remains of good-humour were possible, to
assuage their hunger with ruined food. Cockburn was strong in his opposition
to these Circuit dinners. No wonder, when he tells us: "At six that beastly
Circuit dinner was held. It was described next day in the local paper as *an
elegant entertainment". . . The only elegance that I am aware of was that
nineteen persons drank thirty-five bottles of wine.
Although Lord Cockburn cannot
be held to have been a true prophet when, speaking of two particular judges
who enjoyed these Circuit feasts, he said: "When these two shall be gone,
there will not be a judge of such bad taste as to endure these horrid and
mirthless meetings." But gradually the changers coming. Several of my
brethren and I myself have made it a point to go straight to Court on
arrival and to return home at once when business is over. The practice of
combining duty with feasting, which for the reasons stated might have been
not unnatural in earlier days when locomotion was difficult and the judges
were entertained on their long journeys, might well be abandoned. The
reasons which then existed for it exist no longer. In most of the outlying
Circuit Court towns there is in modern times very little or no business, and
the law having been repealed by which judges were required to hold a Circuit
whether there was business to be done or not, and to remain three days in
the Circuit town, it is a rare thing except at Glasgow that the sitting
occupies more than a few hours. In the general case it is possible to leave
Edinburgh in the morning, hold the Court, and return to Edinburgh on the
same day. I have myself gone to Aberdeen, completed the business, and
returned home in time for dinner.
From what has been quoted
above it will be seen that there were many more cases in the High Court of
Justiciary and Crrcuit Courts when I first joined the Bar than there are
now. Various causes have tended to this diminution. Sir William Harcourt,
when Home Secretary, passed an Act through Parliament ordering extra Courts
to be held between the times of the Vacation Circuits. The purpose was to
diminish the long periods during which persons were detained in prison
before trial. It was a most proper change. Before it was made many persons
arrested for crime were detained in prison for as long a time as seven
months, which was very hard on an accused person, and in the case of one who
was acquitted, amounted to his suffering practically a long punishment for
an offence which the Crown could not establish against him. Now, with a
practical gaol delivery every second month, no such hardship can arise.
Another cause of the diminution of Circuit cases is that many charges can
now be dealt with in the Sheriff Court which formerly would have gone
automatically to the Court of Justiciary, The most trifling offences were
tried there, merely because the accused had offended before. I repeat that I
saw three judges, bedecked with their scarlet crosses, holding solemn
sitting to try two young women who went into a small shop down a stair and
stole a few biscuits not worth twopence out of a glass jar. The three put
their heads together and held a consultation as to the sentence, and then
the Lord ]ustice-Clerk announced: the sentence of the Court is that you,
both and each of you, be transported beyond the seas for a period of seven
years!!!" Such sentences as that were matters of ordinary occurrence on a
Monday in Edinburgh, where, although a single judge could sit on Circuit, it
was thought necessary that a solemn Court of three should sit to try a
"habit and repute common thief". It's incongruity no longer exists.
Circuits in those days
occupied a week, where now they scarcely occupy a day, unless there is some
important or complex inquiry in a particular case. It will give some idea of
the change that has taken place if I quote a few statistics from Lord
Cockburn's Circuit Notes. He speaks of Glasgow Cirouit of 1846 as "a very
insignificant affair"—only 37 cases. In 1847 there were "96 indictments of
which 90 went to trial." In 1848 he says "only about 71 cases." As regards
Perth, he speaks of "only 44 cases." "Our insignificant dozen of cases" is
his comment on an Inverness Circuit. Even later than his time circuits were
very lengthy. I remember one at Glasgow which went on for ten days without
there being any long case for trial.
As may be believed, the Bar
at a Glasgow Circuit was represented by many advocates, and many a merry
encounter took place, and many a good story took rise in the Bar-room. It
would take up too much space to tell even the best of them. But I allow
myself to be tempted to relate one, as I thinkI scored in it. It happened
that at the particular Circuit there were many prisoners of the name of
Macdonald. There always were a good many, as a considerable proportion of
the accused were Iriish, and my clan name in its varying forms appeared on
indictments. A brother advocate chaffingly said: "Look here, Macdonald, you
think a great deal of your clan. How comes it that there are more prisoners
of the name of Macdonald at a Glasgow Circuit than of any other?" It was not
true to that extent, but it was a fair enough thrust. My riposte was: "You
don't seem to realise that people do not commit crimes under their own name;
they generally take an alias and they prefer to take the name of a
gentleman—they wouldn't take yours."
Such chaff as passed between
brother advocates was always good-humoured. There was no acrimony or ilI-will.
And this leads me to say that there :is one characteristic of the Scottish
Bar of which I very soon acquired a knowledge— that it is a real
brotherhood, where friendliness obtains and a spirt of comradeship. Except
in the case of the occasional black sheep, the utmost good feeling seems
always to prevail, and while there is abundance of friendly chaff, it is all
of the give-and-take character, free from malice.
"Envy's abhorred child,
Detraction"
finds no home in the
Parliament House, and I can say of the advocates of my time, what Lord
Cockburn said of those of his day: "I have never known a vestige of
professional jealousy at our Bar." Criticism there is, as there must be if
there :is to be liveliness and freedom from hypocrisy, but there is no trace
of the spirit of which it is said:
"Base envy withers at
another's joy
And hates that excellence i cannot reach."
Long may it be so. Long may
the feeling be that the Bar is one, and that those whom fortune favours
bring honour to the whole. Everyone who joins the Bar knows that if practice
was divided up with anything approaching equality, there would be but a
pittance for each. And it is only possible for a proportion to have the
pleader's gift. Other talents need not wither at the Bar. A resolute
determination to do something will lead to the discovery of the thing that
can be done, although it be not haranguing judges or juries. And many an
advocate who has not the "gift of the gab", may prove a very efficient
public servant as a sheriff-substitute, and ultimately a sheriff.
On the other hand, I would
advise the young advocate who feels he has the powers of a pleader in him,
not too readily to give way to despair of success, because his chances seem
to be long delayed. There are many cases of ultimate and brilliant success
which seemed for long unable to burst the bud. Lord Jeffrey, after six years
at the Bar, told his brother that he did not make £100 a year by his
profession, and his income in his ninth year was only £240. Lord Watson, who
took such a distinguished position as a pleader and a judge, would at the
time I came to the Bar have willngly accepted an outlying
sheritf-substituteship. So with these examples before him, let the young
pleader not give way to despair because of a meagre row of figures in his
fee-book. |
