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Life Jottings of an Old Edinburgh Citizen
Chapter Nine


"The charge is prepared, the lawyers all set,
The judges all ranged, a terrible show."
Gay (The Beggars Opera).

1842

THE Parliament House with the Law Courts beside t was in my childhood the centre spot of Edinburgh vitally. My first visit to it was when I was about six and a half years old. My father being a Writer to the Signet, took me in one day to see the sight. It was the sound that struck me most, resembling, as i't did, On an exaggerated scale, the noise of a busy hive. No words can describe that hum of a couple of hundred people all talking at once. The floor was crowded—much more crowded than it is now— with advocates in wigs and others in tall hats, walking back and forward the whole length of the great hall, some in serious converse, and some in talk of very much the reverse character, judging by the occasional bursts of laughter. So great was the noise that when anyone wished to find a particular person, he had the services of a crier, who filled a pulpit at the lower end of the hall, and whose stentorian voice was heard from time to time, shouting above the din the name of some barrister or law-agent whom he. had been asked to summon. My childish sense of fun was aroused by a recurring sight at that end of the hall. The Melville statue, which is now placed against the end wall, was then set some distance out, and around it were several gratings to bring warm air into the building. As the barristers passed along in their walk, the rush of air got under their gowns and blew them up nearly shoulder high with most comical effect, and I have no doubt 1 was rebuked for pointing at them, and laughing at the sight.

1 was taken to see the Courts, and had pointed out to me some of the judges that were known to my father personally. I was shown Lord Robertson ill one of what were called the Lord Ordinary's boxes—four small courts—he having been promoted to the Bench about that time. He was a personal friend of my father. There was nothing going on, and I came away with the impression that he was having a nap. I learned later to know him as a humorous and witty old gentleman. He was rather a bon vivant, and doubtless many of his clever sayings have already appeared in print. But one never published I heard myself, and it may be worth recording as an illustration. One day I was out with my stepmother, and we met Lord Robertson. He had been dining at our house two nights before, and he stopped and spoke to us. My father had been in very bad health, and was cured by the ablest of the hydropathic doctors of that day, Dr. Gully of Malvern, but was not drinking wine at all after Ins return. Lord Robertson said to my stepmother: "Mrs. Macdonald, to see your husband as he is now, would almost persuade a wine-bibber to turn water drinker"— a pause, and offering his hand; "but remember, I said almost, ' and off he walked.

After seeing Lord Robertson I was taken into the First Division, and I have a vivid recollection of Lord Justice--General Boyle, as he, pressing the tips of the fingers together, gazed upwards, as some advocate was vehemently pleading. The statue of him in the Parliament House is highly characteristic of the man. I only saw him once. He had an imposing presence not to be easily forgotten. It is of him that the well-known story is told of his going out shooting alone on a friend's estate, when, not knowing the marches, he got on to another property. The farmer came along, waving his arms and shouting: "Hey! what are ye daein' there; get oot o' that, wull ye?" when his lordship drew himself up and replied: "Do you know who it is you are addressing, sir; I am the Lord Justice-Clerk" (as he was then).—"I'm no carin' whae's claerk ye are, ye"re no to spile ma neeps" replied the irate bucolic.

I cannot recall any of the other judges in the First Division, except Lord Mackenzie, who was a striking figure, with his lean, long face, from which two keen, shrewd eyes looked out through his gold-rimmed spectacles. Looking very dried up, and suggesting a human spelding (Scots for a dried sea-fish), he nevertheless had a keen sense of humour. It's told of him that on one occasion, when the jury retired to consider conviction or acquittal, they rang their bell, producing the usual strr of anticipation in Court. It turned out, as reported by the macer, that they rang to ask if they might be allowed to have some water while they were in deliberation. According to the law of Scotland, it is forbidden, when a jury has been enclosed, that they should be suffered to have any "meat or drink," until they have returned their verdict. Everybody listened to hear what the judge would say. Lord Mackenzie, looking up meditatively, delivered himself in slow and deliberate tones, heard throughout the Court, thus: "Well, ye canna call it meat" (and then more rapidly), "and it sairtainly is not drink; they can have the water."

On leaving the First Division I was taken to the Second Division, little knowing that, as I gazed at Lord Justice-Clerk Hope in his seat, I was looking at the chair I was to occupy about forty-five years later. I was taken there to see Lord Medwyn and Lord Wood, who were friends of our family. Oh, how very, very old they looked to my young eyes! The memory helps one to realise how we on the Bench appear to the young of to-day. But I do hope that we try, and try successfully, to be more young in spirit to the young than those of an older generation were wont to be.

The other judge in that Division at that time was Lord Moncreiff, the first of the three Lords of Session of that name. I heard of him as a truly upright and learned judge, whose integrity earned the respect of all. He was, however, the lawyer pure and simple, and not much versed in practical matters. Lord Cockburn, who admired and loved him, was constrained to say that he showed "a great inferiority of general knowledge." I have heard it said of him that he did not know that the lighting gas came to the burners through pipes from a distance. On one occasion he was on the Bench at the trial of an engine- driver, in the early days of railroads. A man had been run over at a level crossing and killed. The driver's fireman was brought as a witness for his mate, and being asked whether the prisoner whistled on approaching the crossing, answered that he did. Then he was asked how loud he whistled, and his reply was, "He whistled loud enough to be heard more than half a mile off. Lord Moncreiff laid down his pen, and after looking sternly at the witness, turned to Lord Cockburn and said: "Cockburn, did you hear that—whistling loud enough to be heard half a mile off, the man's perjured!"—"Oh,b ut," replied Cockbiirn, "he doesn't mean that he whistled with his mouth; they do it by a whistling machine."—"A machine for whistling! I never heard of such a thing," and with a semi-consciousness that he was being made to look foolish, he said in dudgeon: "I'll tell you what it is, Cockburn, ye're most abominably rash to say such a thing."

Speaking of the Criminal Court leads me to mention my first experience of the High Court of Juasticiary. When quite a little fellow, I was taken to witness the trial of one Wilson for the murder of his wife by poisoning, of which he was convicted, and for which he was hanged. I mention this because it was the first occasion on which I saw two men, whom I knew well as kind friends in after years, Dr. (afterwards Sir) Douglas Maclagan and Dr. (afterwards Sir) Henry Duncan Litde-john. T'hey were comparatively young men at the time, and had been employed to make the analysis, which proved the death to be from arsenic* I still have the words fixed on my mind of their report, which was read: "On heating in a tube three crystalline rings were produced, which on being tested with the usual reagents were found to give the reactions of arsenious acid. I refer to the incident, as most probably this was the first professional appearance of both of them in an important criminal case; and it s worthy of remark that Dr. Maclagan became Professor of Medical Jurisprudence in 1862, and that on his decease Sir Henry Littlejohn was appointed to the Chair. I here will be something to be said of both of them later. The Lord Justice-Clerk Hope presided, with Lord Cockburn and Lord Wood. He was always dignified, but on that occasion made it plain that he could be betrayed into loss of temper. I anticipate time a little to say, that after this first visit the Justiciary Court exercised a fascination for me, and I picked up a good deal of criminal law while I was still but a schoolboy, as I attended trials, when I had opportunity, during my whole schoolboy period, here was opportunity enough, for in those days there were few fortnights during Session time when there were not several cases, and in three or four hours a shower of sentences of transportation extending from seven to fourteen years or more. At that time certain classes of crime, such as robbery with violence, could not be tried in any other Court, and they were more numerous than now. Also, any person who had been previously convicted, or was a known thief, was invariably tried n the Supreme Court, and pleas of guilty were much more rare than they are to-day. I witnessed at one of my boy attendances a trial, followed by seven years' transportation, of two young women, whose offence was that they went into a little shop, in the absence of the woman to whom it belonged, and stole three or four little biscuits out of a glass jar. The seven years sentence was in those days a matter of almost automatic sequence on a prisoner having previous convictions standing against him. When such things were done, there is little ground for wonder at the fact that sometimes between ten and two o'clock an aggregate of about fifty years of transportation beyond the seas would be dealt out to six or seven prisoners, the sentence being followed in some cases by a volley of unreportable language as the convicts were hustled down the stair, when the trap-door rose up in front of them. Some even fought and struggled, and had to be forced down. Some contented them selves with a loud "Cheer up" to their friendsr in the gallery. Sometimes the Court was addressed sarcastically. Once I heard a prisoner say to the Lord justice-Clerk: "Hey, man, ye'll no be alive when I come back." I remember also on one occasion hearing an old woman in piteous accents beseech the judge to give her "a chance," saying, "I'll never come here again." The judge said, "Well, I will give you a chance," and sentenced her to a short term of imprisonment. "Thank ye, my lord, said she in touching tone. bobbinga curtsey, and as she turned round to descend the trap she leered up at her friends in the gallery, and grinning, thrust out her tongue to its utmost stretch.

It was noteworthy in those days that the prisoner of the criminal classes who could sign his name was the exception, most of those who pleaded guilty having their plea signed by counsel for them. At the present day there is a great difference. A scene of violent speech or action after sentence is very rare, and not once in several years is there a prisoner brought to trial who cannot write. Further, as regards crimes of dishonesty, it is only the apparently incorrigible that are brought before the High Court. Penal servitude, the modern equivalent of transportation, is only awarded to such cases, and to cases of exceptionally serious crime, or after many convictions.

Returning to the most early clays of my life, I was brought in contact with another of the leading men of the legal profession when I was quite a little boy.

My father was an intimate friend of Duncan Macneill, afterwards Lord Colonsay, who, when I was a small schoolboy, held the office of Lord Advocate. They had been much associated in the conduct of Court cases. Although he became Lord Justice-General, he had before doing so accepted an appointment from the Government of his political opponents as a Judge of the Court of Session, and I am able to mention a fact which probably is not known to anyone else now alive, and which I heard from his own lips. When he was appointed to the Bench, my father went along Great King Street, where his friend also resided, to leave a card of congratulation, and he took me by the hand. It so happened that we met the new judge on his own doorstep, and the congratulations were offered verbally. I cannot remember what led to it, but I think my father must have suggested surprise that his friend should have accepted an ordinary judgeship, for I heard the new judge say: "I put it to our own chiefs whether my accepting would interfere with my getting one of the chairs, if it fell vacant when they were in power, and I was assured it would not." Of course I did not know what this meant, and puzzled over it, and perhaps that had some effect in impressing in the matter on my memory. As it happened, he had not long to wait, for there was a change of Government, and on Lord Justice-General Boyle retiring he was appointed to succeed him.

I remember well another judge of repute, although he had retired from the Bench when I was an infant, Lord ;Justice-General Hope. I saw him often, for having an early leaning to the library, I went to the inspections and reviews in the Queen's Park whenever I could. When Lord-Advocate, and afterwards Lord Justice-Clerk. he had been, in the closing years of the Napoleonic wars, a very keen Volunteer, and had commanded the Edinburgh Regiment of Volunteers till it was disbanded after the close of the war, devoting much time and energy to their training. His general order, giving instruction for the meeting an enemy landing on our coast, is a classic of Volunteer literature, and no one acquainted with military matters can read it without appreciating the thoughtfulness and knowledge which it displays. I have in my possession, kindly given to me by his daughters some years ago—as following in his footsteps—his notebook of parades and exercises, instructions for sharp-shooters, &c., an interesting record of home-defence activity. With it they gave me the last two remaining lasses of a set presented to him, having the initials of the corps engraved on them, which I cherish, along with the sword of Baron Hume, the

criminal law writer (who was Major under Lord President Hope), and which came to me through his daughter, who was my stepmother. When Lord President Hope retired from the Bench he was paralysed in his lower limbs, but his keen interest in soldiering remained unabated. I have seen him wheeled down a gangway put out from his door to his carriage, and his servant practically hoisting him in. Whenever there was anything going on in the Park, thither he was driven, and was always admitted within the line of sentries keeping the ground, to witness the march-past and the manoeuvres. Little thought, when at times I saw him there, that it would be given to me to follow him in his double career, and to be:in command of the Edinburgh Volunteers when I was Lord-Advocate and Lord Justice-Clerk. If ever it is my fate to be disabled, I trust I may be as cheerful as he remained, taking an interest, as he did, in things which he loved, but in which he could no longer take an active part.

I was surprised, in looking over once again Cockburn Criminal Notes' to find him saying, "The judicious lamented Lord Justice-Clerk Hope being a Lieutenant-Colonel of Volunteers," and commenting upon Charles Hope, after leaving Court at Aberdeen, mounting a charger, and saying in italics that he "went and reviewed the Volunteers.* I have myself done the same, though not after a Circuit Court. I never received a hint from anyone that in leisure time it was reprehensible to do what lay open to the citizen for the national defence. I should consider one who gave such a hint not to be "judicous", but to be "injudicous."

I do not think that such priggish notions obtain now, and one is surprised to find them expressed by so broad-minded a man as Lord Cockburn. When the Boer War broke out, the Forth Brigade, of which I was then the Brigadier-General in command, was ordered into camp for a month's special war training, and turned out 4000 strong. For the first few days the Court was still sitting, and I came into town for my usual duty after morning parade, and returned to camp ;n the afternoon. Yet I never heard that anyone "lamented," as Lord Cockburn says "the judicious" did, in the case of Lord Justice Clerk Charles Hope, who was doing what he could for his country when peril was close at hand.

The Parliament House was, until the middle of last century, a rather bleak and colourless place, Except at the upper end, where a figure of Justice —blindfolded, and holding the scales, but surrounded with what resembled a cloud darkened by very dirty London fog smoke—looked out from the great window, there was nothing to relieve the dullness of bare walls and diamond-paned casements, except four statues—Roubillac's most artisi'c representation of Duncan Forbes of Culloden, a charming reposeful figure of Dundas of Arriston by Chantrey, a ponderous block of Lord President Blair, and a colossal statue of Viscount Melville, of which I have spoken already. Bad taste, and a disregard of the venerable, had cut out in the wall two courts of mean appearance, the benches of which projected into the Hall, marring its symmetry. At my first visit to the old seat of the Scottish Parliament, these disfiguringg niches were still there, but were no longer mi use. How if can have been possible for those who sat in them to hear and listen with undivided attention, while the hum as of a thousand hives was in their ears, and the crowd of talkers passed and repassed within a few feet, and without cessation, it is difficult to conceive. A worse arrangement for those whose duty it was to listen with an undistracted and deliberative attention cannot be conceived. From the pictures we have of the greater Courts of that time, it can be judged that they were also most unsatisfactory. It may surprise the young barristers of to-day to know that the Law Room, which they now frequent for study, was the Second Division Court Room, to which the bow window at the corner was added later, and that in that confined space the celebrated trial of Burke and Mrs. Macdougal took place, the judges stimulating their jaded nerves by drinking coffee on the Bench during an adjournment in the middle of the night. This I learned from an eye-witness. The judges and counsel are much better provided for now, and the Court Rooms will bear comparison with those of any other country as regards arrangement and air space.

I saw when I was being taken through the Courts at that first visit one of the official clerks, of whose most striking feature one could only say, "What a nose!" It not only was bulky, but it hung down loosely, a sight that could never pass from recollection. And this abnormality was no cause for wonder. I heard my father tell that he had attended a sale at Tait &  Nisbett's, who were then as Dowell is now, the first auctioneering firm in the city, and that there was a batch of very fine cura9oa,of which he did not desire to purchase the whole, but by arrangement with the gentleman referred to above, one of them bought the lot, and they divided it. Meeting his co-purchaser a fortnight later, he was greeted by the question: "Hev ye feenished that curagoa yit?" My father said no, and that he had only opened one bottle. "Hoot,' was the reply, "oors is a' din; some chiels cam 'to us the tither nicht and we made punch o't." No wonder there was the "Punch"-like nose"

The habits of that time as regards the table were very different from those of to-day. Dinner, when guests were invited, was at six o'clock, and proceedings were protracted to as late an hour as now, when an unpunctual descent is made to a so-called eight o'clock repast. The time of ladies for coffee, tea, and gossip was long, the "joining the ladies" never taking place till much more than an hour had passed after they had gone upsta;rs. Coming down, as little people did in those days, to dessert, the boy child was allowed to stay below, a testimony to the improved tone of the conversation of the male sex as compared with the three-bottle days. But still the habits were very different from what they are now. If there were eght gentlemen,it was arara thing eight bottles of claret were not opened, and sherry handedroundasa"wh'tewash"tofinish. I remember heai ng a gentleman ask what was the use of taking a glass of sherry at the last, and replying to his own questiDn by saying that by that practice you got 365 more glasses of wine every year.

It is only fe r to say that anything like intoxication was almost never seen, and there was no call for a little fellow, as in a former generation, to lie under the table to "lowse the neckcloths. Liitle wine was drunk during dinner, probably only one glass of champagne, and the bottle of claret not being hastily taken, could be carried quite steadily. But how different is it all from the better habit of to-day, when a single decanter s scarcely ever emptied, and the ladies only get a liberal twenty minutes for female gossip.

In those days such an idea as that the servants should venture to bring in coffee to the gentlemen until it was expressly ordered, would have been thought to be quite out of the question. It would have been supposed that the host wished to save his wine. Bottle after bottle of claret was rung for, and it was only when the red was declined and the white—called, as it was, "sherry white wine"—was seen to be taken, that any move for coffee was made.

I will only say one thing more about the dinner-party of the Forties. We small people, with the recollection of past injunctions as to the impropriety of making a noise, and being often appealed to thus: "Do you see ladies and gentlemen behaving in such a way, and talking so loud?" could not but be astonished, as we gazed through the banisters from above, to see eighteen or twenty people go down to dinner. To us it was scarcely conceivable that such a babel of sound could come from ladies and gentlemen that were held up to us as models of quiet propriety. It was our first introduction to the incongruities and inconsistencies of social life. Probably had we dared to ask for an explanation, we would have been found impertinent and sent to bed. With our scores of books and lectures on the training of the young, shall we ever come to realise that all the moral and social maxims of theoretical instruction can be marred by the child's acute perceptions, which teach him that practice and precept do not always go hand in hand in the case of his elders, and also to realise that if they do not, precept may be worse than useless as part of training.


OLD TOWN FROM PRINCES STREET, 1850


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