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Life Jottings of an Old Edinburgh Citizen
Chapter Twenty-Five


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.


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