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GIBSON, (SIR) ALEXANDER,
lord Durie, an eminent lawyer and judge, was the son of George Gibson of
Goldingstones, one of the clerks of session. The period of his birth we
have been unable to discover; but as we find him admitted a clerk of
session in 1594, we may conclude that he was born considerably more than
twenty years previous to that period. It appears that the appointment of
Gibson to this duty created a new clerkship, and as the addition in number
would reduce the arbitrary sources of emolument of the other two clerks,
it was naturally apprehended that the interloper would be received with
the usual jealousy of those whose interests are unduly interfered with.
King James the sixth, who had generally some deep and mysteriously wise
purpose in all he did, chose to be personally present at the appointment
of his nominee, in order that the royal choice might meet with no marks of
contempt. The mindful sovereign was on this occasion pleased to be so
highly delighted with the disinterested conduct of his obedient clerks,
who had so willingly received a partner "at his Highness’s wish and
special desire," that he promised in presence of the court, to
remunerate them with "ane sufficient casualty for said
consents." The chamber in the Register house instituted by this
appointment still retains the denomination of "Durie’s
Office." At that period the duties of a principal clerk of session
were of a more politically important nature than they have been since the
union: these officers had to register the decrees and acts of parliament,
in addition to their present duties. The only remnant of their former
occupations, is their acting as clerks at the elections of the Scottish
representative peers. Gibson continued in his clerkship for all the
remainder of his life, notwithstanding the higher offices to which he was
afterwards promoted. In 1621, he was appointed a lord of session, and as
the duties of judge and clerk were rather anomalous, we find by the books
of sederunt, that the prudent clerk had procured in the previous month his
son to be installed in the office. Mr Alexander Gibson, junior, being
appointed conjunct clerk with Mr Alexander Gibson, senior, during the life
of the longest liver, the senior, it may be presumed, continued to draw
the salary, without being much troubled with the duties. Seven years after
his appointment to the bench, we find him accepting a baronetcy of Nova
Scotia, with a grant of some few square miles of land in that district. In
1633, he was appointed a member of one of the committees for the revision
of the laws and customs of the country. In 1640, he appears to have been
elected a member of the committee of estates, and his appointment as judge
was continued under a new commission to the court in 1641. From the period
of his elevation to the bench in 1621, till the year 1642, this laborious
lawyer preserved notes of such decisions of the court as he considered
worthy of being recorded as precedents, a task for which a previously
extensive practice had fitted him. These were published by his son in one
volume folio, in 1688, and are valuable as the earliest digested
collection of decisions in Scottish law. Their chief peculiarities are
their brevity, and, what would not appear at first sight a natural
consequence, their obscurity. But Gibson produced by a too niggardly
supply, the effect which is frequently attributed to a too great multitude
of words. He appears, however, to have always known his own meaning; and
when, with a little consideration, his raciones decidendi are
discovered, they are found to be soundly stated. The clamours which other
judges of the day caused to be raised against their dishonesty and
cupidity, were not applied to Durie. He seems, indeed, as far as
the habits of the times could allow the virtue to exist, except in an
absolutely pure being, to have been a just and fearless
judge, for in a period of general legal rapine and pusillanimity, the
possession of a very moderate share of honesty and firmness in the
judgment seat, made their proprietor worthy of a nation’s honour. If the
affirmation of a professional brother may be credited, Durie possessed,
according to the opinion of Forbes, a later collector of decisions, most
of the intellectual and moral qualities which can dignify the bench. It is
a proof of the respect in which his brethren held him, that while the
office continued elective in the senators of the college, he was
repeatedly chosen as president. At that period, the legal practice of
Scotland appeared to have improved for the mere purpose of substituting
sophism and injustice under form, for rude equity; it was a handle to be
made use of, rather; than a rule to be applied. The crown had recourse to
legal fictions, and unjust and arbitrary presumptions, in its dealings
with the subject. The subject, instead of calling for a recourse to
constitutional principles, sometimes rose against the administration of
the law, just or unjust. With private parties, the more powerful got the
command of the law, and used it against the weaker. A striking instance of
contempt towards the laws, which took place during one of the presidencies
of Gibson of Durie is mentioned in Douglas’s Baronage, and Forbes’s
Journal, and is more fully and pleasingly narrated in the Minstrelsy of
the Scottish Border. The earl of Traquair had an action depending in
court, in which it was understood the president would, by his influence,
cause the court to give judgment against him. A border freebooter, or
gentleman thief, known by the name of Christie’s Will, owed to the peer
some gratitude and allegiance, having gained his protection by an insolent
jest on the subject of his having been imprisoned for theft. This person
being a gentleman both by descent and education, insinuated himself into
the president’s company during his usual morning ride on the sands of
Leith. On the two reaching a very lonely spot, the judge was snatched from
his horse, rolled into a blanket, and carried off he knew not where. He
was imprisoned three months, during which time his friends and himself
considered that he was in fairy-land. The case was decided in favour of
Traquair, and a new president appointed, when the judge one morning found
himself laid down in the exact spot from which he had been so suddenly
carried off, and returned to claim his privileges. This useful man died at
his house of Durie on the 10th of June, 1644. He left behind him a son of
his own name, who was active among the other persons of high rank, who
came forward to protect their national church from the imposition of a
foreign liturgy. He is known as having boldly resisted one of king Charles
the first’s prorogations, by refusing the performance of the duty of
clerk of parliament, already alluded to. He appears, however, not to have
always given satisfaction to the cause he had so well espoused, as he is
more than once mentioned in Lamont’s Diary as a malignant. He was raised
to the bench in 1646. Besides this son, the wealth of the father allowed
him to provide a junior branch of the family with the estate of Adistone
in Lothian. |
