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Kay's Edinburgh Portraits
Lord Hermand, of the Court of Session


Lord Hermand, so well known on the Western Circuit, was the eighth son of Sir James Fergusson, of Kilkerran, one of the Senators of the College of Justice, under the title of Lord Kilkerran.

Sir James married Lady Jean Maitland, the only child of Lord Maitland, eldest son of John, Earl of Lauderdale. Kilkerran is situated near to the Water of Girvan, in the parish of Daily. The scenery around is highly romantic; and, by the plantations and improvements of Sir James and his successors, is now an object of much interest to tourists.

Mr. Fergusson was admitted advocate in 1765, and practised successfully at the bar for thirty-four years, when on the death of M'Queen of Braxfield in 1799, he was promoted to the bench, and took his seat by the title of Lord Hermand, from a small estate of that name which he possessed about 16 miles west of Edinburgh. He was also appointed a Commissioner of Justiciary in 1808, on the resignation of Lord Dunsinuan; and it is in this capacity that the character of Lord Hermand is best known to the public. His severity of manner on the bench was perhaps more peculiarly suited to the criminal court; yet as a judge in civil causes, he was eminently honest and upright; and his opinions were invariably guided by the most scrupulous attention to justice. He was one of the judges in the case of Baird and M'Laren, who were tried at Edinburgh, in 1817, for seditious speeches delivered at a public meeting near Kilmarnock, and who were sentenced to six months' imprisonment in the Canongate jail. He was on the bench during almost all the other political trials in the west; and from this circumstance alone, is well known as a Justiciary Lord in that part of the country.

When at the bar, Lords Hermand and Newton were great "cronies," and had many convivial meetings together; but the former outlived all his old last century contemporaries of the bar, and for many years remained alone, as it were, the only connecting link between the past and present race of Scotch lawyers. He was in short the very last, specimen (Lord Balgray perhaps excepted) of the old race of Scottish advocates. He was universally allowed to be a " capital lawyer;" and, notwithstanding his hasty demeanour on the bench, and the incautious sarcasms in which he occasionally indulged at the expense of the advocates before him, he was a great favourite with the younger portion of the bar, who loved him the more for the peculiarities of his manner. He was himself enthusiastic in the recollection of bygone days, and scorned the cold and stiff formality which the decorum of modern times has thrown over the legal character. Of the warmth of his feelings in this respect, a very characteristic instance is related in Peter's Letters to Ms Kinsfolk:—"When Guy Mannering came out, the Judge was so much delighted with the picture of the life of the old Scottish lawyers in that most charming novel, that he could talk of nothing else but Pleydell, Dandie, and the high-jinks for many weeks. He usually carried one volume of the book about with him; and one morning, on the bench, his love for it so completely got the better of him, that he lugged in the subject, head and shoulders, into the midst of a speech about some most dry point of law; nay, getting warmer every moment he spoke of it, he at last fairly plucked the volume from his pocket, and, in spite of the remonstrances of all his brethren, insisted upon reading aloud the whole passage for their edification. He went through the task with his wonted vivacity, gave great effect to every speech, and most appropriate expression to every joke. During the whole scene, Sir Walter Scott was present, seated, indeed, in his official capacity, close under the Judge."

Latterly his lordship sometimes made strange mistakes. A somewhat amusing instance of his forgetfulness occurred during one of the circuit trials. A point of law having been started, the counsel on either side cited their authorities. The prisoner's counsel founded on the opinion expressed by Mr. Burnet in his treatise on Criminal Law; whilst the Crown counsel appealed to Mr. Baron Hume's authority, which happened to be the other way. Lord Hermand heard the former very patiently; but, when the name of Hume was mentioned, he interrupted the barrister, saying, that during the course of a long life he had heard many strange things, but certainly this was the first time he had ever heard a novel writer quoted as a law authority. Accordingly, without further ceremony, to the amazement of all present, he decided the point against the Crown. In the evening, some one of the young men present at the circuit dinner, ventured to ask his lordship, who was in admirable humour, for an explanation, when it turned out that the venerable Judge, being accustomed to see Baron Hume and Sir Walter Scott sitting together for a series of years at the Clerk's table, in the First Division of the Court, had, by some unaccountable mental process, confounded the one with the other; and the fictions of the latter heing always present in his mind, the valuable legal treatise of the former had entirely escaped his memory.

The following assumed speech by Lord Hermand, in a supposed divorce case of parties married in England, was some years since handed about amongst the gentlemen of the long robe. It is a fair travesty of his style :—

"I am decidedly of the opinion of Lord Meadowbank, and that the Commissaries were egregiously wrong. Will any man tell me that a stranger, with a domicile here, is to be refused justice for any guilt or crime done by him? Is a man who marries in England, and commits adultery in Scotland, to be out of the reach of the Scots law against adultery? Such a man may turn his wife out of doors too,— may even go farther against her and her children,—and all with impunity, upon the famed supremacy of the lex loci contractus. In short, if a man comes to Scotland sine animo remanendi aud cum animo pec-candi steals my horse, are we first to inquire into his domicile, and the laws of his country respecting theft? Now, I am clearly of opinion that he ought to be hanged upon our own law; and a decree of divorce, a vinculo matrimonii, ought equally to follow the commission of adultery here.

"But, secondly, should any of the Euglish divorced parties be averse to our consistorial decree, he may, on his return to England, apply to a court of law, by recapitulating our decision, and get it altered to one a mensa et tlwro; but when no such application has been made, the parties may truly many without the risk of bigamy, or the insecurity of a new family, unless the English courts, of which I dinna know much, are senseless and absurd. Indeed, their decision, a mensa et tlwro, is, like our Jack and the Bean, an absurd nothing, till Parliament, and a huge expense, commissary it (I may say) into our form. We must follow our own laws ; and should our southerners deem them improper, and have no remedy, let them procure an act of Parliament, declaring that any person feeling hurt by the Scots decree, may, within six weeks after his arrival in England, apply to a court of law there, and get the Scottish decree altered into an English one; and should no application during that time be made, the party or parties may marry at pleasure, and their offspring be protected by law. If England requires much time and money to procure a parliamentary divorce, why should not our Scottish 'good cheer and good cheap ca' mony customers,' as our proverb says?"

Of Lord Hermand's rather eccentric warmth on the bench, there are many anecdotes. The well known but highly characteristic one of "Keep him out," and which has been retailed to the public in a variety of shapes, occurred in the Justiciary Court of Glasgow. The Court had been interrupted by a noise which annoyed him very much. "What is that noise?" cried his lordship to one of the officers of the Court. "It's a man, my lord." "What does he want?" "He wants in, my lord." "Keep him out." The man, it would appear, however, had got in; for in a short time the noise was renewed, when his lordship again demanded—"What's that noise there?" "It's the same man, my lord." "What does he want now?" "He wants out, my lord." "Then keep him in—I say, keep him in!"

On another occasion, when presiding in a criminal court in the north, and the business of the trial, in which life and death were at stake, was proceeding with that solemnity which distinguishes our justiciary courts, a wag (for there are some characters who must have their joke, however solemn the occasion) entered the court, and set a musical snuff-box a-playing Jack's Alive upon one of the benches. In the silence of conducting the inquiry, the music struck the ears of the audience, and particularly the venerable judge, whose auricular organ was to the last most admirably acute ; and a pause to the business was the immediate consequence. He stared for an instant on hearing a sound so unusual in a court of justice, and, with a frantic demeanour, exclaimed, "Macer, what, in the name of------is that?" The officer looked around him in vain to answer the inquiry, when the wag exclaimed, "It's Jack's Alive, my lord." "Dead or alive, put him out this moment." "We canna grup him, my lord." "If he has the art of hell, let every man assist to arraign him before me, that I may commit him for this outrage and contempt." Every one endeavoured to discover the author of the annoyance, but he had put the check upon the box, when the sound for a time ceased, and the macer informed his lordship that the person had escaped. The judge was indignant at this; but not being able to make a better of it, the trial proceeded, when, in about half-an-hour, sounds of music again caught the ears of the Court. "Is he there again?" exclaimed his lordship. "By all that's sacred, he shall not escape me this time; fence, bolt, bar the the doors of the court; and, at your peril, let a man, living or dead, escape." All was now bustle, uproar, and confusion; but the search was equally vain as before. His lordship, who had lived not long after the days of witchcraft, began to imagine that the sound was something more than earthly, and exclaimed, "This is a deceptio auris; it is absolute delusion, necromancy, phantasmagoria;" and, to the hour of his death, never understood what had occasioned the annoyance that day to the Court.

In private life, and especially at the convivial board, Lord Hermand was—

"The prince of good fellows and king of old men."

He possessed a rich store of amusing stories, and a vein of humour peculiar to himself, which never failed to render his company entertaining and much courted, especially by the junior members of the profession. His personal appearance was no less striking, particularly in his latter years. Age had rendered his features more attenuated; but the vivacity of his countenance, and the expression of his powerful grey eyes defied the insidious hand of time. His dress also partook of the peculiarities of his character; and, on the streets of Edinburgh, it would have puzzled a stranger to decide whether the lawyer or farmer most predominated in his appearance. His deep "rig-and-fur,"black-and-" white-striped woollen stockings, and stout shoes, at once denoted that he had other avocations than those of the Parliament House. Like most of the old lawyers, he was an enthusiastic agriculturist, and always spent his vacations among his fields at Hermand, which he improved with much skill, and at considerable expense.

His lordship was a keen adherent of the Pitt administration. When the "talents" were ejected, the news reached him on his way to the Parliament House; and, whilst going along the Mound, which at the time had its usual array of caravans containing wild beasts, he, totally forgetful of where he was, exclaimed aloud—"They are out—by the------they are all out, every mother's son of them." A lady who was passing at the time, thinking these ejaculations applicable to the wild beasts, to his utter amazement, seized him in her arms, screaming out —"Good------! we shall then be all devoured."

"We have heard several anecdotes illustrative of his lordship's rustic habits during the vacation. He had a large Newfoundland dog, named Dolphin, which used to accompany him in all his excursions—even to the church on Sundays. There the sagacious animal, seated beside his master, with his immense paws placed on the book-board, would rest his head as calmly and doucely as any sleepy farmer in the congregation. So much did this church-going propensity grow upon the animal, that, in the absence of his master, he regularly went himself; and, what was still more extraordinary, if there happened to be no sermon in the parish church, ho was liberal enough to attend the Dissenting meeting-house. Lord Hermand generally walked with a cane in his hand, to which he had a kind of bill-hook affixed, for the purpose of switching down any obnoxious weed he might find in his rambles. One Sunday, as he and Dolphin were proceeding as usual to West Calder, his lordship found so many weeds to cut down on his way through the policies, that by the time he emerged from the avenue he found the people returning from church. "Dear me! is't a' owre already?" said he to the first group he met; "I may just gang my way back again." He accordingly did so; but Dolphin was not of a similar mind. Forward he went, in spite of all his lordship's exertions to prevent him. He, of course, found the church-door closed; but, no doubt, recollecting that the Dissenters were not so short-winded, Dolphin proceeded to the meeting-house, where he remained in his usual position until sermon was finished.

As may well be guessed, the dog was a great favourite with Lord Hermand. Naturally of a kind disposition, he was particularly indulgent to Dolphin. So long as his master remained at Hermand, the animal fared on the best; but during his absence was treated much in the fashion of other dogs. Dolphin had not only sagacity enough to understand this, but displayed a surprising degree of wisdom and foresight in the mode he took to mitigate the evil. He apparently knew exactly at what time his lordship's avocations in the Court of Session recalled him to the city; and, accordingly, about a fortnight previous, he commenced carrying away whatever he could lay his paws on in the shape of butcher-meat. Those savoury pieces he carefully hid in the woods to make up for the scanty fare of brochan to which he was reduced during the "sitting of the Session."

Lord Hermand's warmth of temper was not confined to occasional sallies on the bench. An amusing instance occurred on one occasion at Hermand. A large party were at dinner, and his lordship in excellent humour, when one of the waiting-men, in handing over a wine-decanter, -unfortunately lot it fall to the floor, by which it was smashed to pieces. This unlucky accident at once overbalanced his lordship's equanimity. He sprung to his feet in a fury of passion, and, darting over chairs and every impediment, rushed after the fellow, who fled precipitately down stairs. The dinner party were thrown into convulsions of laughter, and had scarcely regained their composure, when his lordship returned from the chase, and resumed his chair as if nothing had occurred to disturb the harmony.

Lord Hermand married Miss Graham M'Dowall, daughter of Wrn. M'Dowall of Garthland, Esq., but had no issue. His lordship resigned his office as a Senator of the College of Justice in 1826; and died at Hermand on the 9th of August, 1827, upwards of eighty years of age. His widow survived him for several years. He left the liferent of his estate of Hermand to Mrs. Fergusson; and, after her demise, to her niece, the wife of Thomas Maitland, Esq., advocate, and their second son; with special legacies to the second son of each of his other nieces, Mrs. Cockburn and Mrs. Fullarton, the ladies of two of the Senators of the College of Justice.


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