Once when on Circuit his lordship had been dozing on the bench, a noise created by the entrance of a new panel woke him, and he inquired what the matter was. "Oh, it's a woman, my lord, accused of child murder."--"And a weel farred b--h too," muttered his lordship, loud enough to be heard by those present.

[Ill.u.s.tration: JOHN CLERK, LORD ELDIN.]

John Clerk (Lord Eldin) was one of the best-known advocates at the Scottish Bar in the first quarter of the nineteenth century, and probably the last of them to retain the old Scots style of p.r.o.nunciation. His voice was loud and his manner brow-beating, from which the Bench suffered equally with his brother members of the Bar. He suffered from a lameness in one leg, which was made the subject of a pa.s.sing remark by two young women in the High Street of Edinburgh one day as Clerk was making his way to Court. "There goes John Clerk the lame lawyer," said one to the other. Clerk overheard the remark, and turning back addressed the speaker: "The lame man, my good woman, not the lame lawyer."

The stories of his advocate days are numerous, and many of them probably well known. In his retention of old Scots p.r.o.nunciation he got the better of Lord Eldon when pleading before the House of Lords one day.

"That's the whole thing in plain English, ma lords," he said. "In plain Scotch, you mean, Mr. Clerk."--"Nae maitter, in plain common sense, ma lords, and that's the same in a' languages." On another occasion before the same tribunal he had frequently referred to water, p.r.o.nouncing it "watter," when he was interrupted by the inquiry, "Do you spell water with two t's in the north, Mr. Clerk?"--"No, my lord, but we spell mainners wi' twa n's." And there is the well-known one of his use of the word "enough," which in old Scots was p.r.o.nounced "enow." His repet.i.tion of the word in the latter form drew from the Lord Chancellor the remark that at the English Courts the word was p.r.o.nounced "enough." "Very well, my lord," replied Clerk, and he proceeded with his address till coming to describe his client, who was a ploughman, and his client's claim, he went on: "My lords, my client is a pluffman, who pluffs a pluff gang o'

land in the parish of," &c. "Oh! just go on with your own p.r.o.nunciation, Mr. Clerk," remarked the Lord Chancellor.

His encounters with members of the Scottish Bench were of a more personal character. Indeed, for years he appears to have held most of them in unfeigned contempt. A junior counsel on hearing their lordships give judgment against his client exclaimed that he was surprised at such a decision. This was construed into contempt of Court, and he was ordered to attend at the Bar next morning. Fearing the consequences of his rash remark, he consulted John Clerk, who offered to apologise for him in a way that would avert any unpleasant result. Accordingly, when the name of the delinquent was called, John Clerk rose and addressed the Bench: "I am sorry, my lords, that my young friend so far forgot himself as to treat your lordships with disrespect. He is extremely penitent, and you will kindly ascribe his unintentional insult to his ignorance. You will see at once that it did not originate in that: he said he was surprised at the decision of your lordships. Now, if he had not been very ignorant of what takes place in this Court every day; had he known your lordships but half so long as I have done, he would not be surprised at anything you did."

Two judges, father and son, sat on the Scottish Bench, in succession, under the t.i.tle of Lord Meadowbank. The second Lord Meadowbank was by no means such a powerful judge as his father. In his Court, Clerk was pressing his construction of some words in a conveyance, and contrasting the use of the word "also" with the use of the word "likewise."

"Surely, Mr. Clerk," said his lordship, "you cannot seriously argue that 'also' means anything different from 'likewise'! They mean precisely the same thing; and it matters not which of them is preferred."--"Not at all, my lord; there is all the difference in the world between these two words. Let us take an instance: your worthy father was a judge on that Bench; your lordship is 'also' a judge on the same Bench; but it does not follow that you are a judge 'like wise.'"

When Meadowbank was about to be raised to the Bench he consulted John Clerk about the t.i.tle he should adopt. Clerk's suggestion was "Lord Preserve Us." The legal acquirements of James Wolfe Murray were not held in high esteem by his brethren of the Bar, and when he became a judge with the t.i.tle of Lord Cringletie, Clerk wrote the following clever epigram:

"Necessity and Cringletie Are fitted to a t.i.ttle; Necessity has nae law, And Cringletie as little."

The only man on the Bench for whom John Clerk retained a respectfulness not generally exhibited to others in that position was Lord President Blair. After hearing the President overturn without any effort an argument he had laboriously built up, and which appeared to be regarded as unsurmountable by the audience who heard it, Clerk sat still for a few moments, then as he rose to leave the Court he was heard to say: "My man, G.o.d Almighty spared nae pains when He made your brains."

When he ascended the Bench in his sixty-fifth year, and when his physical powers were declining, he received the congratulations of his brother judges, one of whom expressed surprise that he had waited so long for the distinction. "Well, you see, I did not get 'doited' just as soon as the rest of you," replied the new-made judge.

Like the generation preceding his, Clerk was of a very convivial disposition. Of him the story is told that one Sunday morning, while people were making their way to church, he appeared at his door in York Place in his dressing-gown and cowl, with a lighted candle in his hand, showing out two friends who had been carousing with him, and in the firm belief that it was about midnight instead of next mid-day. At the termination of a Bannatyne Club dinner, where wit and wine had contended for the mastery, the excited judge on the way to his carriage tumbled downstairs and, _miserabile dictu_, broke his nose, an accident which compelled him to confine himself to the house for some time. He reappeared, however, with a large patch on his olfactory member, which gave a most ludicrous expression to his face. On someone inquiring how this happened, he said it was the effect of his studies. "Studies!"

e.j.a.c.u.l.a.t.ed the inquirer. "Yes," growled the judge; "ye've heard, nae doot, about _c.o.ke upon Littleton_, but I suppose you never before heard of _Clerk upon Stair_!"

When asked by a friend what was the difference between him and Lord Eldon, the Lord Chancellor of England, Eldin replied; "Oh, there's only an 'i' of a difference."

[Ill.u.s.tration: CHARLES HAY, LORD NEWTON.]

Charles Hay (Lord Newton), known in private life as "The Mighty," has been described by Lord c.o.c.kburn as "famous for law, paunch, whist, claret, and worth." His indulgence in wine and his great bulk made him slumbrous, and when sitting in Court after getting the gist of a case he almost invariably fell fast asleep. Yet it is strange to find it recorded that whenever anything pertinent to the matter under discussion was said he was immediately wide awake and in full possession of his reasoning faculties. While a very zealous but inexperienced counsel was pleading before him, his lordship had been dozing, as usual, for some time, till at last the young man, supposing him asleep, and confident of a favourable judgment in his case, stopped short in his pleading and, addressing the other judges on the Bench, said: "My lords, it is unnecessary that I should go on, as Lord Newton is fast asleep."--"Ay, ay," cried Lord Newton, "you will have proof of that by and by"--when, to the astonishment of the young advocate, after a most luminous view of the case, he gave a very decided and elaborate judgment against him.

Lord Jeffrey himself declared that he only went to Oxford to improve his accent, and according to some of the older members of the Bar of his days, he only lost his Scots accent and did not learn the English. A story of his early days at the Bar is related to the effect that when pleading before Lord Newton the judge stopped him and asked in broad Scots, "Whaur were ye educat', Maister Jawfrey."--"Oxford, my lord."--"Then I doot ye maun gang back there again, for we can mak'

nocht o' ye here." But Mr. Jeffrey got back his own. For, before the same judge, happening to speak of an "itinerant violinist," Lord Newton inquired: "D'ye mean a blin' fiddler?"--"Vulgarly so called, my lord,"

was the reply.

[Ill.u.s.tration: HENRY c.o.c.kBURN, LORD c.o.c.kBURN.]

Circuit Courts were in Scotland, in the eighteenth and early years of the nineteenth century (as in England and Ireland), occasions for a great display in the county towns in which they were held. Whether the judges had arrived on horseback or as later in their private carriages, there was always the procession to the court-house, in which the notabilities of the district took part. Lord c.o.c.kburn, who had no sympathy with this part of a judge's duties, thus describes one of his experiences in the early days of his Circuit journeys: "Yet there are some of us who like the procession, though it can never be anything but mean and ludicrous, and who fancy that a line of soldiers, or the more civic array of paltry policemen, or of doited special constables, protecting a couple of judges who flounder in awkward gowns and wigs through ill-paved streets, followed by a few sneering advocates and preceded by two or three sheriffs or their subst.i.tutes, with their swords, which trip them, and a provost and some bailie-bodies trying to look grand, the whole defended by a poor iron mace, and advancing each with a different step, to the sound of two cracked trumpets, ill-blown by a couple of drunken royal trumpeters, the spectators all laughing, who fancy that all this pretence of greatness and reality of littleness contributes to the dignity of judges." Things are changed now. Even Lord c.o.c.kburn saw the change that the introduction of railways made in the progress of Circuit work, and with them a lesser display and more dignified opening of the courts of justice in local towns. But the older Circuits were times of much feasting and merriment, in which the judges of that period took their full share as well as the members of the Bar accompanying them. In the eyes of some of these old worthies it was part of the dignity of their position to sit down after Court work at two o'clock in the morning to a collation of salmon and roast beef, and drink b.u.mpers of claret and mulled port with the provosts and other local worthies, although they were due in Court that same morning at nine to try some miserable creature for a serious crime. Lord Pitmilly had no stomach for such proceedings, his inclination was stronger for decorum and law than for revelling. Once at a Circuit town he ordered his servant to bring to his room a kettle of hot water. Lord Hermand on his way to dinner at midnight, meeting the servant, said, "G.o.d bless me, is he going to make a whole kettle of punch--and before supper too?"--"No, my lord, he's going to bed, but he wants to bathe his feet."--"Feet, sir! what ails his feet? Tell him to put some rum among it, and to give it all to his stomach."

The Circuit sermon was an important part of the duties to which the judges had to attend in the course of their visits in the country. One of these that Lord c.o.c.kburn had to listen to was delivered from the text, "What are these that are arrayed in white robes, and whence came they?" There was nothing personal intended, but the ermine on the judges gowns naturally attracted significant glances from the other members of the congregation. A Glasgow clergyman and friend of the judge, not knowing that his lordship was present in his church, preached from the text, "There was in a city a judge which feared not G.o.d, neither regarded man." The announcement of the text directed all eyes towards the learned judge, which attracting the preacher's attention nearly prevented him from proceeding further with the service. The judge was the pious Lord Moncreiff, the son of the Rev. Sir Henry Wellwood Moncreiff, and the text stuck to him ever afterwards. But there seemed to have been deliberation in selection of the text made by a south-country minister who, before Lord Justice Boyle and Samuel M'Cormick, Advocate-Depute, preached from I Samuel vii. 16, "And Samuel went from year to year in circuit to Bethel, and Gilgal, and Mizpeh."

The two legal gentlemen took offence at this audacious attempt to ridicule the Court, they identifying the places mentioned in the text as representing their circuit towns of Jedburgh, Dumfries, and Ayr. In this connection maybe told the story of Lord Hermand, beside whom stood the clergyman whose duty it was to offer up the opening prayer before the work of the Court began. He seemed to think the company had a.s.sembled for no other purpose than to hear him perform, and after praying loud and long his lordship's patience gave way, and with a decided jog of his elbow he exclaimed in a stage whisper, "We've a lot of business to do, sir."

From a somewhat rare volume printed for private circulation we are permitted to quote the following ballad, the authorship of which may be easily guessed, as the circuiteer who mourns the loss of his Circuit days may be as easily identified.

THE EX-CIRCUITEER'S LAMENT

Ae morning at the dawning I saw a Counsel yawning, And heard him say, in accents that were anything but gay, As sadly he was grinding At a meikle multiplepoinding,-- The days o' my Circuits are a' fled away.

Nae banter frae Lord Deas, Nae promises o' fees That never will be paid afore the judgment-day, Nae lies dubbed "information,"

From the worst rogues in the nation,-- The days o' my Circuits are a' fled away.

Nae haveral wutty witness, Displaying his unfitness, Tae see some sma' distinction 'tween a trial and a play, Nae witness primed at lunch Wi' perjuries and punch,-- The days o' my Circuits are a' fled away.

Nae laughing-gas orations, Nae treading on the patience Of Judges and of Juries, who will let you say your say, Yet pay but sma' attention To the gems of your invention,-- The days o' my Circuits are a' fled away.

Nae mair delightful wondering At a new man blandly blundering, Nae kind hints from the Court that he's gangin far astray, Nae flowery depictions In the teeth of ten convictions,-- The days o' my Circuits are a' fled away.

Nae whacking ten years' sentence, Wi' advices o' repentance, And learn in years of leisure to admire the "law's delay."

Nae fell female fury, Blackguarding Judge and Jury,-- The days o' my Circuits are a' fled away.

Nay grey auld woman sobbing, Nae mair you'll catch her robbing, And a' the Christian virtues henceforth she will display, If the Judge will but have mercy (For the sixteenth time I daresay),-- The days o' my Circuits are a' fled away.

Nae processions, nae pageants, Nae pawky country agents, Nae macers, nae trumpeters, wi' tipsy blare and bray, Nae Councillors or Bailie, Or Provost smiling gaily,-- The days o' my Circuits are a' fled away.

Nae funny cross-examining, Nae jurymen begammoning, Nae laughter from the audience, nae gallery's hurrah, Nae fleeching for acquittal, Though you don't care a spittle,-- The days o' my Circuits are a' fled away.

Nae playing _hocus-pocus_ With the _tempus_ and the _locus_, Nae pleas in mitigation (a kittle job are they), Nae bonny rapes and reivings, Nae forgeries and thievings,-- The days o' my Circuits are a' fled away.

Nae dinners wi' the Judges, Nae drooning a' your grudges In deep, deep draughts o' claret, and a' your senses tae, Nae chatter wise or witty On ticklish points o' dittay,-- The days o' my Circuits are a' fled away.

Nae high-jinks after dinner Wi' ony madcap sinner, Nae drinking whisky-toddy until the break o' day, Nae speeches till a hiccup Compels a sudden stick-up,-- The nichts o' my Circuits are a' fled away.

Lord Hermand's manner on the Bench conveyed the impression that he was of an impatient, almost savage temper, but in his domestic circle he was one of the warmest-hearted of men, and one with the simplest of tastes.

His outbursts on the Bench, too, were emphasised by what, in Scotland, was called "Birr"--the emphatic energy of his p.r.o.nunciation--which may be imagined but cannot be transcribed in the following dialogue between him and Lord Meadowbank.

Meadowbank: "We are bound to give judgment in terms of the statute, my lords."

Hermand: "A statute! What's a statute? Words--mere words. And am _I_ to be tied down by words? No, my laards; I go by the law of right reason."

He was a great friend of John Scott (Lord Eldon). In a case appealed to the House of Lords, Scott had taken the trouble to write out his speech, and read it over to Hermand, inviting his opinion of it. "It is delightful--absolutely delightful. I could listen to it for ever," said Hermand. "It is so beautifully written, and so beautifully read. But, sir, it's the greatest nonsense! It may do very well for an English Chancellor, but it would disgrace a clerk with us." The blunder that drew forth this criticism was a gross one for a Scottish lawyer, but one an English barrister might readily fall into.

It was put forward in mitigation of the crime that the prisoner was in liquor when, either rashly or accidentally, he stabbed his friend. While the other judges were in favour of a short sentence, Lord Hermand--who had no sympathy with a man who could not carry his liquor--was vehement for transportation: "We are told that there was no malice, and that the prisoner must have been in liquor. In liquor! Why, he was drunk!... And yet he murdered the very man who had been drinking with him! Good G.o.d, my laards, if he will do this when he is drunk, what will he not do when he is sober?"

On one of Lord Hermand's circuits a wag put a musical-box, which played "Jack Alive," on one of the seats of the Court. The music struck the audience with consternation, and the judge stared in the air, looking unutterable things, and frantically called out, "Macer, what in the name of G.o.d is that?" The macer looked round in vain, when the wag called out, "It's 'Jack Alive,' my lord."--"Dead or alive, put him out this moment," called out the judge. "We can't grip him, my lord."--"If he has the art of h.e.l.l, let every man a.s.sist to arraign him before me, that I may commit him for this outrage and contempt." Everybody tried to discover the offender, and fortunately the music ceased. But it began again half an hour afterwards, and the judge exclaimed, "Is he there again? By all that's sacred, he shall not escape me this time--fence, bolt, bar the doors of the Court, and at your peril let not a man, living or dead, escape." All was bustle and confusion, the officers looked east and west, and up in the air and down on the floor; but the search was in vain. The judge at last began to suspect witchcraft, and exclaimed, "This is a _deceptio auris_--it is absolute delusion, necromancy, phantasmagoria." And to the day of his death the judge never understood the precise origin of this unwonted visitation.

On another occasion, in his own Court in the Parliament House, he was annoyed by a noise near the door, and called to the macer, "What is that noise?"--"It's a man, my lord."--"What does he want?"--"He _wants in_, my lord."--"Keep him out!" The man, it seems, did get in, and soon afterwards a like noise was renewed, and his lordship again demanded, "What's the 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_!"