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The Diamond Beetle Case, being Illustrations of the Styles of the Various Lords of Session


In the jeu d'esprit called the "Diamond Beetle Case," attributed to George Cranstoun, Esq. (late Lord Corehouse), the manner and professional peculiarities of several of the Senators composing the "last sitting'' are happily imitated. The involved phraseology of Lord Bannatyne—the predilection for Latin quotation of Lord Meadow-bank—the brisk manner of Lord Hermand—the anti-Gallic feeling of Lord Craig—the broad dialect of Lords Polkemmet and Balmuto—and the hesitating manner of Lord Methven—are admirably caricatured. This effusion, humorous without rancour, was much appreciated at the time, and is so characteristic, that we need not apologise for giving it a place here :—

"NOTES
TAKEN AT ADVISING THE ACTION OF DEFAMATION AND DAMAGES,
Alexander Cunningham, Jeweller in Edinburgh,

AGAINST
James Russell, Surgeon there.

"Lord President (Sir Ilay Campbell),—Your Lordships have the petition of Alexander Cunningham against Lord Bannatyne's interlocutor. It is a case of defamation and damages for calling the petitioner's Diamond Beetle an Egyptian Louse. You have the Lord Ordinary's distinct interlocutor on pages 29 and 30 of this petition:— "Having considered the Condescendence of the pursuer, Answers for 'defender,' and so on; Finds, in respect that it is not alleged that ' the diamonds on the back of the Diamond Beetle are real diamonds, or anything but shining spots, such as are found on other Diamond' Beetles, which likewise occur, though in a smaller number, on a great number of other Beetles, somewhat different from the Beetle libelled, and similar to which there may be Beetles in Egypt, with shining spots on their backs, which may be termed Lice there, and may be different not only from the common Louse, but from the Louse mentioned by Moses as one of the plagues of Egypt, which is admitted to be a filthy troublesome Louse, even worse than the said Louse, which is clearly different from the Louse libelled. But that the other Louse is the same with, or similar to, the said Beetle, which is also the same with the other Beetle; and although different from the said Beetle libelled, yet as the said Beetle is similar to the other Beetle, and the said Louse to the said other Louse libelled; and the other Louse to the other Beetle, which is the same with, or similar to, the Beetle, which somewhat resembles the Beetle libelled; assoilzies the defender, and finds expenses due.' "Say away, my Lords.

"Lord Meadowbank,—This is a very intricate and puzzling question, my Lord. I have formed no decided opinion ; but at present I am rather inclined to think the interlocutor is right, though not upon the ratio assigned in it. It appears to me that there are two points for consideration; First, Whether the words libelled amount to a convicium; and, Secondly, Admitting the convicium, whether the pursuer is entitled to found upon it in this action. Now, my Lords, if there be a convicmm at all, it consists in the comparatio or comparison of the Scarabceus or Beetle with Egyptian Pediculus or Louse. My first doubt regards this point, but it is not at all founded on what the defender alleges, that there is no such animal as an Egyptian Pediculus or Louse in rerum natura; for though it does not actually exist, it may possibly exist; and whether its existence be in esse vel posse, is the same thing to this question, provided there be habiles for ascertaining what it would be if it did exist. But my doubt is here. How am I to discover what are the essentia of my Louse, whether Egyptian or not'? It is very easy to describe its accidents as a naturalist would do—to say that it belongs to the tribe of assterce (or that it is a yellow, little, greedy, filthy, despicable reptile)—but we do not learn from this what the proprium of the animal is in a logical sense, and still less what its differentia are. Now, without these, it is impossible to judge whether there is a convicium or not; for, in a case of this kind, which sequitnr naturam delicti, we must take them meliori sensu, and presume the comparatio to be in the melioribus tantum. And here I beg that parties, and the bar in general— [interrupted by Lord Hermand, Your Lordship should address ijonrself to the Chair]—I say—I beg it may be understood that I do not rest my opinion on the ground that Veritas convicii excusat. I am clear that although this Beetle actually were an Egyptian Pediculus, it would afford no relevant defence, provided the calling it so were a convicium; and there my doubt lies.

"With regard to the second point, I am satisfied that the Scarabceus or Beetle itself has no persona standi injwdicio; and therefore the pursuer cannot insist in the name of the Scarabceus, or for his behoof. If the action lie at all, it must be at the instance of the pursuer himself, as the verus dominus of the Scarabceus, for being calumniated through the convicium directed primarily against the animal standing in that relation to him. Now, abstracting from the qualification of an actual dominium, which is not alleged, I have great doubts whether a mere convicium is necessarily transmitted from one object to another, through the relation of a dominium subsisting between them ; and, if not necessarily transmissible, we must see the principle of its actual transmission here ; and that has not yet been pointed out.

"Lord Heemand,—We heard a little ago, my Lord, that there is a difficulty in this case ; but I have not been fortunate enough, for my part, to find out where the difficulty lies. Will any man presume to tell me that a Beetle is not a Beetle, and that a Louse is not a Louse? I never saw the petitioner's Beetle; and what's more, I don't care whether I ever see it or not; but I suppose it's like other Beetles, and that's enough for me.

"But, my Lord, I know the other reptile well. I have seen them, my Lord, ever since I was a child in my mother's arms ; and my mind tells me that nothing but the deepest and blackest malice rankling in the human breast could have suggested this comparison, or led any man to form a thought so injurious and insulting. But, my Lord, there's more here than all that—a great deal more. One could have thought the defender would have gratified his spite to the full by comparing the Beetle to a common Louse—an animal sufficiently vile and abominable for the purpose of defamation-—[Shut that door there]—-but he adds the epithet Egyptian, and I know well what he means by that epithet. He means, my Lord, a Louse that has been fattened in the head of a Oypsey or Tinker undisturbed by the comb, and unmolested in the enjoyment of its native filth. He means a Louse ten times larger, and ten times more abominable than those with which your Lordships and I are familiar. The petitioner asks redress for the injury, so atrocious and aggravated ; and, as far as my voice goes, he shall not ask in vain.

"Lord Ceaig,—I am of the opinion last delivered. It appears to me to be slanderous and calumnious to compare a Diamond Beetle to the filthy and mischievous animal libelled. By an Egyptian Louse, I understand one which has been formed in the head of a native Egyptian—a race of men who, after degenerating for nianj' centuries, have sunk at last into the abyss of depravity, in consequence of having been subjugated for a time, by the French. I do not find that Turgot, or Condorcet, or the rest of the economists, ever reckoned the combing of the head a species of productive labour; and I conclude, therefore, that wherever French principles have been propagated, Lice grow to an immoderate size, especially in a warm climate like that of Egypt. I shall only add, that we ought to be sensible of the blessings we enjoy under a free and happy Constitution, where Lice and men live under the restraint of equal laws—the only equality that can exist in a well-regulated state.

"Lord Polkemmet,—It should be observed, my Lord, that what is called a Beetle is a reptile well known in this country. I have seen mony ane o'them in Drumshorlin Muir; it is a little black beastie, about the size of my thoom nail. The country people ca' them Clocks ; and, I believe, they ca' them also Maggy-wi'-the-mony-feet; but this is not a beast like any Louse that ever I saw ; so that, iu my opinion, though the defender may have made a blunder through ignorance, in comparing them, there does not seem to have been any animus injur i-audi: therefore I am for refusing the petition, my Lords.

"Lord Balmuto,—'Am for refusing the petition. There's more Lice than Beetles in Fife. They ca' them Beetle-clocks there. "What they ca' a Beetle, is a thing as lang as my arm; thick at the one end and small at the other. I thought, when I read the petition, that the Beetle or Bittle had been the thing that the women have when they are washing towels or napery with—things for cladding them with; and I see the petitioner is a jeweller till his trade; and I thought he had ane o' thae Beetles, and set it all round with diamonds; and I thought it a foolish and extravagant idea; and I saw no resemblance it could have to a Louse. But I find I was mistaken, my Lord; and I find it only a Beetle-clock the petitioner has ; but my opinion's the same it was before. I saj% my Lords, 'am for refusing the petition, I say------

"Lord Woodhouselee,—There is a case abridged in the third volume of the Dictionary of Decisions, Chalmers v. Douglas, in which it was found, that Veritas convicii excusat, which may be rendered not literally, but in a free and spirited manner, according to the most approved principles of translation, 'the truth of calumnj' affords a relevant defence.' If, therefore, it be the law of Scotland (which I am clearly of opinion it is), that the truth of the calumny affords a relevant defence—and if it be likewise true, that the Diamond Beetle is really an Egyptian Louse—I am inclined to conclude (though certainly the case is attended with difficulty) that the defender ought to be assolzied.—Refuse.

"Lord Justice Clerk (Rae),—I am very well acqainted with the defender in this action, and have respect for him—and esteem him likewise. I know him to be a skilful and expert surgeon, and also a good man; and I would go a great length to serve him, if I had it my power to do so. But I think on this occasion he has spoken rashly, and I fear foolishly and improperly. I hope he had no bad intention —I am sure he had not. But the petitioner (for whom I have likewise a great respect, because I knew his father, who was a very respectable baker in Edinburgh, and supplied my family with bread, and very good bread it was, and for which his accounts were regularly discharged), it seems has a Clock or a Beetle, I think it is called a Diamond Beetle, which he is very fond of, and has a fancy for, and the defender has compared it to a Louse, or a Bug, or a Flea, or something of that kind, with a view to render it despicable or ridiculous, and the petitioner so likewise, as the proprietor or owner thereof. It is said that this is a Louse in fact, and that the Veritas convicii excusat; and mention is made of a decision in the case of Chalmers v. Douglas. I have always had a great veneration for the decisions of your Lordships : and I am sure will always continue to have while I sit here ; but that case was determined by a very small majority, and I have heard your Lordships mention it on various occasions, and you have always desiderated the propriety of it, and I think have departed from it in some instances. I remember the circumstances of the case well:—Helen Chalmers lived in Musselburgh, and the defender, Mrs. Baillie, lived in Fisherrow; and at that time there was much intercourse between the genteel inhabitants of Fisherrow, and Musselburgh, and Inveresk, and likewise Newbigging; and there were balls, or dances, or assemblies, every fortnight, or oftener, and also sometimes I believe every week ; and there were card-parties, assemblies once a fortnight, or oftener; and the young people danced there also, and others played at cards, and there were various refreshments, such as tea and coffee, and butter and bread, and I believe, but I am not sure, porter and negus, and likewise small beer. And it was at one of these assemblies that Mrs. Baillie called Mrs. Chalmers a------, or an---------, and said she had been lying with Commissioner Cardonald, a gentleman whom I knew very well at one time, and had a great respect for. He is dead many years ago. And Mrs. Chalmers brought an action of defamation before the Commissaries, and it came by advocation into this Court, and your Lordships allowed a proof of the Veritas convicii, and it lasted a very long time, and in the end answered no good purpose even to the defender herself, while it did much hurt to the pursuer's character. I am therefore for refusing a proof in this case ; and I think the petitioner in this case and his Beetle have been slandered, and the petition ought to be seen.

"Lord Methven,—If I understand this a—a—a—interlocutor, it is not said that the a—a—a—a—Egyptian Lice are Beetles, but that they may be, or —a—a—-a—-a resemble Beetles. I am therefore for sending the process to the Ordinary to ascertain the fact, as I think it depends upon that whether there be a—a—a—a—coiivicium or not. I think also the petitioner should be ordained to a—a—a—produce his Beetle, and the defender an Egyptian Louse or Pedicalns, and that he should take a diligence a—a—a—to recover Lice of various kinds ; and these may be remitted to Dr. Monro, or Mr. Playfair, or to some other naturalist, to report upon the subject.

"Agreed to."


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