CHAPTER SIX

THE ADVOCATES OF SCOTLAND

"Ye lawyers who live upon litigants' fees, And who need a good many to live at your ease, Grave or gay, wise or witty, whate'er your degree, Plain stuff, or Queen's Counsel, take counsel from me, When a festive occasion your spirit unbends, You should never forget the profession's best friends; So we'll send round the wine and a bright b.u.mper fill To the jolly Testator who makes his own will."

NEAVES: _Songs and Verses_.

CHAPTER SIX

THE ADVOCATES OF SCOTLAND

Since days when Sir Walter Scott gathered round him at the fireplace in the Parliament Hall of Edinburgh a company of young brother advocates to hear the latest of Lord Eskgrove's eccentric sayings from the Bench, that rendezvous has been the favourite resort for story-telling among succeeding generations of counsel. While the Court is in session, they vary their daily walk up and down the hall by lounging round the spot where the future Wizard of the North proved a strong counter-attraction to many an interesting case being argued before a Lord Ordinary in the alcoves on the opposite side of the hall, which was then the "Outer House." It is even a.s.serted that this same fireplace is the hatchery of many of the amusing paragraphs daily appearing in a column of a certain Edinburgh newspaper. But of all the witticisms that have enlivened the dull hours of the briefless barrister in that historic hall during the past century, none will stand the test of time or be read with so much pleasure as those of that prince of wits, the Hon. Henry Erskine.

[Ill.u.s.tration: THE HON. HENRY ERSKINE, LORD ADVOCATE AND DEAN OF FACULTY OF ADVOCATES.]

Hairry, as he was familiarly called both by judge and counsel, was in an eminent degree the "advocate of the people." It is said that a poor man in a remote district of Scotland thus answered an acquaintance who wished to dissuade him from "going to law" with a wealthy neighbour, by representing the hopelessness of being able to meet the expenses of litigation. "Ye dinna ken what ye're saying, maister," replied the litigious northerner; "there's no' a puir man in a' Scotland need want a freen' or fear a foe, sae lang as Hairry Erskine lives."

When the autocratic reign of Henry Dundas as Lord Advocate was for a time eclipsed, Henry Erskine was his successor in the Whig interest. In his good-humoured way Dundas proposed to lend Erskine his embroidered gown, suggesting that it would not be long before he (Dundas) would again be in office. "Thank you," said Hairry, "I am well aware it is made to suit any party, but it will never be said of me that I a.s.sumed the abandoned habits of my predecessor."

Having been speaking in the Outer House at the Bar of Lord Swinton, a very good, but a very slow and deaf judge, Erskine was called away to Lord Braxfield's Court. On appearing his lordship said: "Well, Dean" (he was then Dean of the Faculty of Advocates), "what is this you've been talking so loudly about to my Lord Swinton?"--"About a cask of whisky, my lord, but I found it no easy matter to make it run in his lordship's head."

He was once defending a client, a lady of the name of Tickell, before one of the judges who was an intimate friend, and he opened his address to his lordship in these terms: "Tickell, my client, my lord."

But the judge was equal to the occasion and interrupted him by saying: "Tickle her yourself, Harry, you're as able to do it as I am."

Lord Balmuto was a ponderous judge and not very "gleg in the uptak" (did not readily see a point), and retained the utmost gravity while the whole Court was convulsed with laughter at some joke of the witty Dean.

Hours later, when another case was being heard, the judge would suddenly exclaim: "Eh, Maister Hairry, a' hae ye noo, a' hae ye noo, vera guid, vera guid."

Hugo Arnot, a brother advocate, a tall, cadaverous-looking man, who suffered from asthma, was one day munching a speldin (a sun-dried whiting or small haddock, a favourite article supplied at that time, and till a generation ago, by certain Edinburgh shops). Erskine coming up to Arnot, the latter explained that he was having his lunch. "So I see,"

said Harry, "and you're very like your meat." On another occasion these two worthies were discussing future punishment for errors of the flesh, Arnot taking a liberal, and Erskine a strongly Calvinist view. As they were parting Erskine said to Arnot, referring to his spare figure:

"For ---- and blasphemy by the mercy of heaven To flesh and to blood much may be forgiven, But I've searched all the Scriptures and text I find none That the same is extended to skin and to bone."

Erskine's brother, the extremely eccentric Lord Buchan, who thought himself as great a jester as his two younger brothers, the Lord Chancellor of England and the Dean of Faculty of Advocates, one day putting his head below the lock of a door, exclaimed: "See, Harry, here's Locke on the Human Understanding."--"Rather a poor edition, my lord," replied the younger brother.

Sir James Colquhoun, Baronet of Luss, Princ.i.p.al Clerk of Session, towards the close of the eighteenth century was one of the odd characters of his time, and was made the b.u.t.t of all the wags of the Parliament House. On one occasion, whilst Henry Erskine was in the Court in which Sir James was on duty, he amused himself by making faces at the Princ.i.p.al Clerk, who was greatly annoyed at the strange conduct of the tormenting lawyer. Unable to bear it longer, he disturbed the gravity of the Court by rising from the table at which he sat and exclaiming, "My lord, my lord, I wish you would speak to Harry, he's aye making faces at me." Harry, however, looked as grave as a judge and the work of the Court proceeded, until Sir James, looking again towards the bar, witnessed a new grimace from his tormentor, and convulsed Bench, Bar, and audience by roaring out: "There, there, my lord, see he's at it again."

Hugo Arnot's eccentricity took various forms. In his house in South St.

Andrew Street, in the new town of Edinburgh, he greatly annoyed a lady who lived in the same tenement by the violence with which he kept ringing his bell for his servant. The lady complained; but what was her horror next day to hear several pistol-shots fired in the house, which was Arnot's new method of demanding his valet's immediate attendance.

In his professional capacity, however, he was guided by a high sense of honour and of moral obligation. In a case submitted for his consideration, which seemed to him to possess neither of these qualifications, he with a very grave face said to his client: "Pray what do you suppose me to be?"--"Why, sir," answered the client, "I understood you to be a lawyer."--"I thought, sir," replied Arnot, "you took me for a scoundrel." On another occasion he was consulted by a lady, not remarkable either for youth or beauty or for good temper, as to the best method of getting rid of the importunities of a rejected admirer. After having told her story and claiming a relationship with him because her own name was Arnot, she wound up with: "Ye maun advise me what I ought to do with this impertinent fellow."--"Oh, marry him by all means, it's the only way to get quit of his importunities," was Arnot's advice. "I would see him hanged first," retorted the lady.

"Nay, madam," rejoined Arnot, "marry him directly as I said before, and by the Lord Harry he'll soon hang himself."

Of the convivial habits of the Bar as well as the Bench in Scotland at this period many stories are told. The Second Lord President Dundas once refused to listen to counsel who obviously showed signs of having come into Court fresh from a tavern debauch. The check given by the President appeared to effect some sobering of the counsel's faculties and he immediately addressed his lordship upon the dignity of the Faculty of Advocates, winding up a long harangue with: "It is our duty and our privilege to speak, my lord, and it is your duty and your privilege to hear."

Another counsel in a similar condition of haziness hurriedly entered the Court and took up the case in which he was engaged; but forgetting for which side he had been fee'd, to the unutterable amazement of the agent, delivered a long and fervent speech in the teeth of the interests he had been expected to support. When at last the agent made him understand the mistake he had made, he with infinite composure resumed his oration by saying: "Such, my lord, is the statement you will probably hear from my brother on the opposite side of the case. I shall now show your lordship how utterly untenable are the principles and how distorted are the facts upon which this very specious statement has proceeded." And so he went over the same ground and most angelically refuted himself from the beginning of his former pleading to the end.

[Ill.u.s.tration: ANDREW CROSBIE, ADVOCATE, "Pleydell."]

When a barrister, pleading before Lord Mansfield, p.r.o.nounced a Latin word with a false quant.i.ty his lordship rarely let the opportunity pa.s.s without exhibiting his own precise knowledge of that language. "My lords," said the Scottish advocate, Crosbie, at the bar of the House of Lords, "I have the honour to appear before your lordships as counsel for the Curators."--"Ugh," groaned the Westminster-Oxford law lord, softening his reproof by an allusion to his Scottish nationality, "Curators, Mr. Crosbie, Curators: I wish _our_ countrymen would pay a little more attention to prosody."--"My lord," replied Mr.

Crosbie, with delightful readiness and composure, "I can a.s.sure you that _our_ countrymen are very proud of your lordship as the greatest senator and orator of the present age."

A very young Scottish advocate, afterwards an eminent judge on the Scottish Bench, pleading before the House of Lords, ventured to challenge some early judgments of that House, on which he was abruptly asked by Lord Brougham: "Do you mean, sir, to call in question the solemn decisions of this venerable tribunal?"--"Yes, my lord," coolly replied the young counsel, "there are some people in Scotland who are bold enough to dispute the soundness of some of your lordship's _own_ decisions."

Sheriff Logan, when pleading before Lord Cunningham in a case which involved numerous points of form, on some of which he ventured to express an opinion, was repeatedly interrupted by old Beveridge, the judge's clerk--a great authority on matters of form--who unfortunately possessed a very large nasal organ, which literally overhung his mouth.

"No, no," said the clerk, as the sheriff was quietly explaining the practice in certain cases. On which Logan, somewhat nettled at the blunt interruption, coolly replied: "But, my lord, I say: 'Yes, yes, yes,' in spite of Mr. Beveridge's _noes_."

In the days of Sheriff Harper, Mr. Richard Lees, solicitor, Galashiels, was engaged in a case for a client who was not overburdened with the necessary funds for legal proceedings. However, he was thought good enough for the expenses in the case. The action went against Mr. Lees'

client, and then Mr. Lees rose to plead for modified expenses. But the client leant across to speak to the lawyer and said in a hoa.r.s.e whisper audible over the Court: "Dinna stent (limit) yoursels for the expenses for a haena a fardin'." This was too much even for the gravity of the Bench.

Not many years ago, in the High Court at Glasgow, a case was heard before an eminent judge still on the Scottish Bench, in which the accused had committed a very serious a.s.sault and robbery. He was unable to engage counsel for his defence, and the usual course was adopted of putting his case in the hands of "counsel for the poor." There was really no defence; but the young advocate who undertook the task had to make the best of it, and the plea he put forward was that the accused was so drunk at the time he did not know what he was doing. It was the best thing he could do in the circ.u.mstances, as all the success he could expect to make with a well-known felon was a mitigation of the sentence.

When it came to his time to address the Court, he set out in the following fashion: "My lord and gentlemen of the jury, you all know what it is to be drunk."

It is most important to be exact in stating the times of the movements of a person accused of murder. In a recent case this point was very minutely examined by an advocate in the Scottish Court. One witness deponed that she saw the accused in a certain place at 5.40 P.M. "Are you sure," asked the learned counsel in a tone calculated to make a witness not quite sure after all, "are you sure it was not twenty minutes to six?" And then he seemed surprised at the laughter his question had raised.

When Mr. Ludovick Mair, who was a very short man, was Sheriff-Subst.i.tute of Lanarkshire, he was called upon, at an Ayrshire Burns Club dinner, to propose the toast of the "Ayrshire La.s.ses." After alluding to the honour that had been conferred upon him, happily said that "Provided his fair clients were prepared to be 'contented wi' little and canty wi' mair,'

he had no compunction in performing the agreeable duty."

In the Glasgow Small Debt Court where the sheriff frequently presided, a young lawyer's exhaustive eloquence in striving to prove that his client was not due the sum sued for, drew from his lordship the following interruption: "Excuse me, sir, but throughout the conflict and turmoil engendered by this desperate dispute with the pursuer I presume the British Empire is not in any danger?"--"No, my lord," came the reply, "but I fear after that interrogation from your lordship my client's case is?"

On one occasion the sheriff, becoming impatient with an agent's protracted speech, rebuked him thus: "Be brief, be brief, my dear sir; time is short and eternity is long!" And again on being asked by an agent not to allow a witty old Irishman to act as the spokesman of "the defendant" on the ground that the Irishman was not now in the defendant's employment, the sheriff sternly said to the would-be witness: "Now, answer me truthfully, mirthful Michael, are you or are you not in the defendant's employment?"--"Well, my lord of lords," was the reply, "that is to say, in the learned phraseology of the law, _pro tem_ I am and _ultimo_ and _proximo_ I amn't."

Two stories are told of the late Sheriff Balfour. His lordship was addressing a prisoner at unusual length, when he was interrupted more than once by a _sotto voce_ observation from his then clerk, who was very impatient when the luncheon hour drew near. Accustomed to this interruption, the sheriff, as a rule, took no notice of them. On this occasion, however, he threw down his quill with a show of annoyance, leaned back in his chair, and addressed the interrupter thus: "I say, Mr. ----, are you, or am I, sheriff here?" Promptly came the unabashed reply: "You, of course; but your lordship knows that this woman has been frequently here," meaning that it was idle to address words of counsel to the prisoner. On another occasion, the sheriff was pulled up by a male prisoner, who took exception to his version of the story of the crime, and concluded: "So you see I've got your lordship there."--"Have you?" was the sheriff's rejoinder. "No, but I've got you--three months hard."

A law agent was talking at length against an opinion which Sheriff Balfour had already indicated. Twice the sheriff essayed in vain to stay the torrent that was flowing uselessly past the mill. At last, in a more decided tone, he asked the agent to allow him just one word, after which he would engage not to interrupt him again. "Certainly, milord,"

said the agent. "Decree," said the sheriff.

Counsel who are briefless and who spend much time in perambulating the floor of Parliament Hall should be as careful in their dress as their more fortunate neighbours who jostle each other in the lobbies as they rush from one Court to another. A company of Americans visiting the Courts one day made a casual inquiry of one of the advocates "in waiting," who politely offered to show them all that is to be seen. As they were leaving, one of the party caught hold of a pa.s.sing solicitor and after apologising for stopping him inquired: "This--this--this gentleman has been very good in showing us over your beautiful place.

Would it be correct to give him something?"--"Yes, certainly," said the busy pract.i.tioner, "and it will be the first fee he has earned, to my knowledge, for the last ten years."