"What art thou, idle
IN the last weeks of 1859
came the final day when, according to the established etiquette, I appeared
before "the examiners," dressed up, although it was 11 a.m., in white tie
and tailed coat—as no other being except a waiter is expected to appear in
the forenoon—and was put through my facings in law, and duly informed that I
had passed. How thankful a feeling glows over the poor intrant when he walks
forth from the examination room with the certainty that he is free, no grim
examiner making him afraid "in all time coming." In the olden days there
could be no such feeling. Examinations were a farce. It was all in the style
of the story, according to which the question put to the candidate for a
degree was: "Magister, quid est icreare"? which was answered in hesitating
tones: |Creare—est—eh, zh—facere —aliquid—eh—ex—nihilo," whereupon the
examiner replied, waving his hand to the candidate: "Iirgo, te creodoetorem."
But before my time things were changed, and much for the better.
Examinations were real and strict, and practically enforced study. Still
there was one farce left which I believe subsists still. The intrant has to
go through what «s called a public examination. He is given a subject for a
Latin thesis, and this thesis he has to send in, along with three brief as
sertions in law—also in Latin—on points of the thesis. This thesis-writing
when I came to the Bar was performed by deputy, the intrant paying a fee to
a well-known individual who eked out his income by supplying theses to all
applicants. I prepared my own thesis, but of this I make no boast. I only
saved a guinea. It so happened that I had a number of presentation copies of
theses inelegant binding, which formed part of Baron Hume's library, having
been presented to him as Professor of Scots Law. With the aid of these, and
in the certainty that no one would ever look at my thesis, either to test
its latinity or its soundness, and therefore my Latin and my law ran no risk
of challenge, I presented my thesis. Then came the most supreme farce. I had
to find three friends who had never seen the thesis to impugn my law. of
them I handed slips prepared by myself, on each of which an impugnetur was
written beginning—Ufalsum est "or "minime Zero," or some such phrase. These
were solemnly—more or less—read out by the friends, and I replied off my
slip of paper "verum esf," and stated that I try phoninus, or somebody else,
had said so and so. thus I passed through my public examination in presence
of four or five persons. Then followed the ballot of the Faculty, the
ballot-box having only about half a dozen balls, as nobody attended but the
Dean and the impugning or other friends.
I do not know whether this
mockery is still practised. If it is, I would ask, should it not be brought
to an end? No doubt some would be shocked at the proposal, urging that it is
well to keep up ancient practices, and would perhaps quote Guether.
"Ein tiefer Sinn wohnt in den
alten Brauchen." That is quite sound. Many ceremonies of olden days should
be kept up. They often convey symbolically what it !s well to remember. But
this is not a ceremony— it :s no symbol representing any principle or truth.
It is the acting of a farce and nothing else; and if it is suggested that
there is any real :y in it, then it is not farce, but fraud. For what, it
may be asked, is this gone through when the intrant has been actually
examined as to his qualifications, and been found to stand the test? I shall
probably offend some by saying this, but that s scarcely to be avoided, when
a proposal is made to abandon an old form out of which all spirit has
departed. But a farce is not the less a farce because it is solemn.
Of course one does not wait
to see whether there will be success in passing this public examination. The
wig and the gown are ordered before that "trial" Although the wig had become
almost universal by the time I began to wear it, there were still a few who
appeared in the Parliament House in tall hats. I believe Cockburn wore his
hat until he took office, and Jeffrey for long periods discarded the wig,
which was not wonderful, seeing that it's wig was that of a friend who gave
it to him when he retired from the Bar, and was a hopeless misfit. In my
time Mr. Robert Thompson, who used to refer to a book he wrote as "Mesilf on
Bielts," and his friend Robert Hunter wore hats, Hunter giving this up when
he was in such a condition of baldness that he must wear a wig of some kind.
Then Messrs. Richardson and Park, two somewhat eccentric gentlemen, always
appeared in hats. The last hat disappeared within the Sixties. One amusing
incident relating to the advocate's wig occurred when Mr. Pattern,
afterwards Lord-Advocate and Lord Justice-Clerk, was defending a prisoner.
He was the baldest of the bald. While the trial was going on, Lord-Advocate
Inglis was called out of the Court. As he passed the corner of the table, a
button on the sleeve of his court coat caught in a loop of Mr. Patton's wig
and carried it off, the Lord-Advocate disappearing through the swag-door
instantly. The scene was comic in the extreme—Mr. Patton suddenly showing
his bald pate and clawing round it with his hands, searching for the wig,
which had made as mysterious a disappearance as a conjuror's vanishing
rabbit. The whole assemblage, including the prisoner, was convulsed with
laughter; Mr. Patton trying to look as if he thought nobody was looking at
him—a feat, as Dickens says in the trial scene in "Pickw«ck," "no man ever
succeeded in doing yet, or in all reasonable probability ever will"
A curious character to us
juniors among those who clung to the hat was Mr. Maidment, who went about,
much to the distress of the Dean of Faculty, in a hat and a blue waistcoat
with gilt buttons, and with his gown dragging behind him. He had a habit of
expressing himself in what he supposed was a whisper, but which could be
heard afar. Pie was standing behind me at the end of the bar one day, when a
member of the Bench, in the course of delivering judgment, said. "Now in
that state of matters, I put this question to myself," when a lisping but
loud voice said past my shoulder: "Couldn't put it to a more incompetent
Turning round, I saw him
passing out at the swing-door, whistling, as was his constant practice in
all kinds of unsuitable situations. Tradition has it that he, being a,
bibliophile, used often to carry Advocates' Library books home, which he
forgot to return, and that after his death, at the sale of his own library,
not a small proportion of it consisted of books marked with the Library
stamp. He was no thief, only he had the book borrower's bump of
forgetfulness abnormally developed.
Talking of peculiarities,
there were in those days, as might be expected, considerable variations in
the treatment of the Queen's English in the Courts. Lord Colonsay
represented the Highlander. While his speech was always dignified, and his
language well chosen, his enunciation of words was strongly in contrast with
the Lowland Scotch of his colleague, Lord Deas. It is narrated that on one
occasion, at a social gathering, a junior counsel was guilty of a gaucherie,
as when telling him that a brother advocate—Mr. Hector—was an excellent
mimic, he added: "He even takes your lordship off occasionally." "Doss he,"
replied Colonsay; "I wass not awaire that ther wass any paycooliaritie in my
prononciation that should make me the subject of meerricrie." The amazing
thing about Mr. Hector, the mimic, was that in his own ordinary mode of
speech he used most extraordinary perversions of English pronunciation. His
"e's" were turned into "is" or "crs," and some of his words were very broad.
When prosecuting at Glasgow Circuit, it is told of him that in the trial of
a thief for stealing a watch and a cloak, the following took place in the
examination of the chief witness:
"Did he gaw with you to the
hid of the closs?"
"Had you your waatch on you
et that time?"
"And your clok on your back;
The judge intervened, with a
twinkle in his eye:
"Mr. Advocate-Depute, is it
part of your case that this witness was carrying an eight-day clock on his
back up this close?"
"No, mee lord," replied Mr.
Hector, "not a cloke, it was a clok, a spaachiees of tope-cot."
On the Bench Lord Deas
represented the Lowlander, in good Scotch, although not of so marked a type
has in the time of Eskgrove and Hermand. His "you" was always "ye," and when
he addressed me the "d" always dropped off the end of my name. "Law" always
sounded as if there were two "a's" i» it, and "card" had an "i" inserted. I
incline to the belief that if his English had been more polished, the vigour
of his thought would have lost something in the expression. At times, when
he spoke solemnly, the form his words took tended to detract from his
impressiveness, as when, in sentencing an aged and incorrigible prisoner, he
referred to the unlikenhood of their meeting again in this life, and
said,"You an'I hev met here before, but looking to the sentence I must
pronounce now, I doot, when we meet again, it'll be at anither bawr."
At the same time that I was
studying for the Bar I joined the Speculative Society, and did my share of
writing rather "vealy" essays and making speeches on all sorts of subjects,
with all the confidence of inexperienced youth. But the debates there are, I
am sure, useful to the young man about to enter upon life. A great
proportion of what is said may be full of paradox and tinged with prejudice,
but the habit of thinking out a matter beforehand, and choosing the forms of
speech in which the thought is to be expressed, has undoubtedly a useful
effect on one whose fate in life is to be the presentation of arguments in
support of a view, whether that view coincides with individual opinion or
not. My colleague, Lord Kinnear, was. when I joined, just completing his
three years as an ordinary member, and I can remember an essay he read on
Boswell, which was a most elegant and interesting piece of writing.
As regards the essays, an
amusing incident occurred when I was secretary. There were two brothers, who
joined the Society at an interval of two years. The first brother gave in as
the subject of his essay "Byron's Manfred," and read it. Three years
afterwards, to my astonishment, the junior brother gave in the same subject,
and my memory being good I was able to recognise the text as being the same.
I got a hold of him afterwards and said, "My dear-, it was too bad of you to
come here and read your brother's essay that he read to us three years ago."
"What?" he said; "did he read that? The essay was written by me in my last
year at school. He must have taken it out of my drawer and read it as his
own." History does not tell what passed between the brothers. As we had the
word of junior that the essay was his, we could only laugh.
I must confess that I also
committed a fraud upon the Society, as to which I beg the reader to consider
whether it has not at least a claim to be put «n the "pious fraud''
category. An intimate friend of my own joined the Society at a later period
of life than was the case with most of us. He gave in as the subject of his
essay "English Literature.' As the time approached he felt unlit to face the
composition of the essay, he having no talent for literature, and he
metaphorically went down on his knees to beseech my help. I swallowed my
scruples and wrote an essay for him, to which I sat and listened as he read
it. All went well until, to my horror—my "u's" being very like "n's"—he came
to the name of a well-known work, and read out—"Frowde's History of England?
Fortunately I can keep my countenance, and others were too polite to make
any remark, but my inward feelings were not capable of being described.
In 1864 the centenary of the
Society was celebrated by honorary membership being conferred on Lord
Brougham and Lord Colonsay, who was then Lord Justice-General, and by a
banquet n the evening. Another celebration on the 150th anniversary has just
been reached, and I feel it a high honour that the Society has selected me,
along with Lords Kinnear and Dunedin, for honorary membership. I little
thought fifty years ago of having my name enrolled beside those of Lord
Brougham and Lord Colonsay. My friends seem always to desire to be good to
me, and I hope it will be believed that I have a grateful heart for this and
many another kindness shown to me.
Several of my contemporaries
were members of the Society at the same time as myself. Alas! there are few
left. One of them gave us a most delightful instance of sang-froid. He was
presiding, and during a vigorous speech from Alexander Moncrieff-—who was
always vigorous—the Resident fell asleep, and hanging over the side of the
chair began to snore loudly. Moncrieff gravely went on, while we .tittered,
but at last could not stand it longer, and speaking as if he was a drill
sergeant said loudly: "Wake him." The President was shaken up, but again
went off worse than before, whereupon on his being once more roused, Kinnear
rose to order, and moved "that the President do leave the chair. He
recognised the situation, and taking up a long quill pen, he twiddled it in
his fingers, and said slowly: "May I ask, Mr. Kinnear, are you serious in
proposing that motion? "Yes, sir, quite serious was the reply. "Then," said
the President, speaking in deliberate tones and settling himself back in his
chair, "I must tell you that your motion is quite out of order, you must
give a week's notice of it. It was impossible to do anything else than roar
with laughter, which all did, and the President called on Mr. Moncrieff to
proceed. But he kept awake after that.
My late brother advocate and
friend, Alexander Asher, joined the Speculative while I was still an
ordinary member. I was much struck with the power he showed of close debate.
He was at that time training for the other branch of the profession, and was
past the age at which it was usual to join the Bar. But I strongly urged him
to consider whether he would not do better to enter the ranks of the
pleaders, feeling convinced that he showed exceptional capacity for the work
of the Bar. Others, I believe, pressed the same advice upon him, to which he
yielded. All who watched his career will, I am sure, agree that his friends
advised him rightly, as the position he took as a pleader was—not to say
more—as high as that of any man of his time.