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Fraser's Scottish Annual
Scots' Laws


BY W. MORTIMER CLARK, M.A., Q.C.

IT has been said that the national characteristics of a people are largely reflected in their literature. It might be said with equal, or perhaps greater truth, that these characteristics find their expression more perfectly in their laws and system of judicial procedure. The English historian Froude, says, "Turn where you will in the story of Scotland, weakness is nowhere; power, energy, and will, are everywhere." This forceful national disposition appears at the very outset of legal proceedings in Scotland. In England, as with us, the person invoking the aid of the law, becomes a "plaintiff" or suppliant. The Scot, on the other hand, goes for his adversary vi et armis, and without an circumlocution, becomes the "pursuer." He shows at once that he means business, and the defendant knows what he may expect. Not only does he pursue the defendant by issuing a summons, but the moment he issues his writ he rushes out letters of inhibition prohibiting the unfortunate defendant from contracting any obligation, or granting any deed, by which in any way, any part of his lands might be alienated to the pursuer's prejudice. This formidable process, more stringent than even the dreaded Roman actio Pauliana, where some evidence was required of the debtor's intention to disappoint his creditor by making away with his property, he could issue without the previous consent of a judge. When the pursuer succeeds in obtaining a decree in his favour, his further efforts to obtain the fruits of his pursuit, are appropriately termed "diligence," indicating that he is the same persevering, diligent, forceful and persistent pursuer as ever. There is no abatement in his activity and he at once issues "Letters of Horning." In this dreaded writ he is termed by Her Majesty, "Our Lovite," as expressing probably the sovereign's regard for the diligence manifested by her active subject. No such endearing terms are used to the defendant, but Her Majesty, at the instigation of "Our Lovite," orders the messengers-at-arms, in the event of the unfortunate debtor not at once paying up, "to denounce him our rebel, put him to the horn, and use the whole order against him as prescribed by law." The latter words left a good deal to be inferred by the terrified imagination of the defendant. The former vigorous procedure was for the messengers-at-arms to denounce the debtor at the market places after blowing a horn, as a rebel, and give notice to the treasury to seize all that he might ever have, or in the words of the old writ, "to escheat and bring in all his goods and gear to our use for his contempt." Promissory notes require the entry of no formal judgment for their recovery, but only registration of the protest prior to the issue of "diligence." The dread, therefore, of the appearance of "Our Lovite," in the event of default with his Letters of Inhibition and of Horning, makes a man think twice before putting his name on paper, and renders commercial securities more valuable than with us. The promptitude and severity of "diligence," did not, however, always render men mindful of the terrors of being "put to the horn," or of the warning of Scripture, "Be not one of them that are sureties for debts." An old Scots' Act, still in force, proceeding on the recital that many men had brought ruin on their wives and bairns by becoming cautioners or sureties for others, provided that every obligation given by way of security should, at the end of seven years become absolutely void, and prohibited every waiver of the benefit of the act. The statute does not require even to be pleaded so complete is the extinction of the obligation. Possibly many wives and bairns would be thankful if such a statute were in force in Canada. "Our Lovite," having run his adversary to the earth by doing "diligence" on his property, nothing remained for the debtor but to take refuge within the bounds or "girth" of the sanctuary at Holy- rood, lest the "pursuer" should "do diligence" on his person. There we leave him with the emissaries of the pursuer keeping ward on him and ever ready to pounce on him in the event of his crossing for a moment the line of safety. The Scots were very sensitive to libel and slander, and in no department of their judicial activity was their pertinacity more marked. We read that in 1579, "twa poets of Edinburgh remarking some of the Earl of Morton's sinistrous dealing, did publish the same to the people by a famous libel written against him ; and Morton hearing of this, causit the men to be brought to Stirling, were they were convict of slandering one of the King's councillors, and were baith hangit. The names of the men were William Turnbull, school master in Edinburgh, and William Scott, notar. They were baith weel beloved of the common people." Truly these poets placed themselves in an evil plight from the exercise of their powers of satirical versification and were brought to a sudden and untimely end. The case of a Pole named John Stercovious affords, however, an illustration of vindictive and pertinacious pursuit of a libeller, which is perfectly unique. About the year 1613, the unfortunate foreigner visited Scotland. He appeared in the streets in the garb of his native country, and consequently became the object of derision to the youth and common people. He was hooted at, and so ill-treated, that he returned, greatly disgusted, to his own land. He consoled himself for his wrongs by publishing a book called a Legend of Reproaches, directed against the Scottish nation. The records call it "ane infamous book against all estates of persons in this Kingdom." King James hearing of this book, employed one Patrick Gordon, a foreign agent, to prosecute John in the courts of Poland. So effectively did he discharge his duty, that poor Stercovious was beheaded for his libel. The prosecution cost Scotland 6,000 marks, and considerable difficulty was experienced in those days in raising the amount. The "diligence" was, however, complete.

In criminal cases justice was administered with even greater rigour than in civil matters. The judge seemed, in fact, to consider the prisoner, or, as he was called, the pannel, to be prima facie guilty. The jurymen were selected by the presiding judge from the list of assize. It was sometimes said that those persons were always sworn in who had been on juries that had returned convictions for the Crown. A burlesque of a criminal trial in Scotland, entitled "The Justiciary Opera," believed to have been prepared by Boswell, the biographer of Johnson and Cohn Maclaurin, afterwards Lord Dreghon, holds up to ridicule the whole procedure. Before the trial is really commenced the presiding judge addresses the accused in an instructive and warning manner, and winds up as follows:

"Mercy were folly if lavished on him;
Robbing and thieving the gallows shall check;
Our duty is plain—we'll proceed to condemn:
John, you shall presently hang by the neck.

The prisoner cheerily replies to these encouraging words:

We're no guilty yet,
We're no guilty yet;
Although we're accused,
We're no guilty yet.

Afore ye condemn
Ye maun hear us a bit,
For tho' we're accused,
We're no guilty yet.

The clerk of the court proceeds to read the indictments:

Whereas, by the laws of this realm,
And o' ilka weel governed land,
To seize on anither man's gear
As the tangs ance a Hieland man fand;
And whether the thief ho be caught
In the fact, or be grippit out fang,
The law says expressly and wisely
That chiel by the thrapple shall hang.
And you, John Black there, the pannel,
Ye robbit, assaulted and a',
And sae gang till an assize, sir,
And underlie pains o' the law.

The prosecutor, witnesses and counsel for the prisoner having discharged their various duties in a similar style to ancient Scottish airs, the judge, to the tune of "Merrily Danced the Quaker," sums up as follows:-

If ever a case before me came
That I could judge most clearly,
This is a case I'll boldly name—
I've scrutinized it nearly;
To trace the truth through all its track
Nae witch requires or jugglers;
The witnesses are all a pack
Of drunkards and of smugglers.

* * * * * * *

That Black put Brown in mortal fear,
The proof is clear—clarissima;
And that he robbed, though not quite clear,
Presumptio est fortissima.

* * * * * * *

The proof is strong; a verdict bring,
Such honest men becoming;
I need not say one other thing,
And so I end my summing.

The jury, having become convinced that the whole affair was nothing but "a towzle wi' a gauger," unanimously acquitted the prisoner, as became good Scotsmen in dealing with any case in which that unpopular officer was concerned. The indignation of the judge was complete, and he gives vent to his feelings in the following verses :-

A plague on such juries—they make such a pother,
And thus by their folly let pannels go free;
And still on some silly pretext or another
Nothing is left for your lordships and me.
Our duty, believe us,
Was not quite so grievous
While yet we had hopes to hang them up all;
But now they're acquitted—
Oh, how we're outwitted,
We've sat eighteen hours for nothing at all!
Chorus of the whole Bench:
Tol do rol, tel do rol, lol do rol, lol do rol!


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