The Scots Law Times

136.
Finance Act, 1894, 99.
Finance (1909-10) Act, 1910, 112, 196.
Finance (New Duties) Act, 1916, 27, 136.
Finance Act, 1920, 36, 184.
Finance Act, 1922, 27.
Income Tax Act, 1918, 104, 174, 188.
Increase of Rent and Mortgage Interest

(Restrictions) Act, 1920, 140.
Larceny Act, 1861, 52.
Larceny Act, 1916, 52.
Locomotives on Highways Act, 1896, 136.
Merchandise Marks Act, 1887, 15.
National Insurance Act, 1911, 51.
National Health Insurance Act, 1918, 51.
Prevention of Crime Act, 1908, 168.
Railway Passenger Duty Act, 1842, 136.
Rent and Mortgage Interest (Restrictions)

Act, 1923, 140.

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LAW TIMES

1924.

case,

as her

LORD HAILES.

ated with an insistence on accuracy in every

detail, however apparently unimportant, served “Judges ought to be more learned than witty, more reverend than plausible, and more

to hide a very real ability and a sound knowadvised than confident. Above all things,

ledge of the law. integrity is their portion and proper virtue.” 1 In spite of these failings he nevertheless

gained a solid reputation, especially in plea Rarely has education and training played a more important and striking part in the career It may be remarked in passing that plea writing

writing, as a very learned and accurate lawyer. of a man than in that of Lord Hailes. The

played a very much larger part in those days sympathies of the Dalrymple family, staunchly in the process of the law than it does at the Hanoverian and pro-Union, in all probability greatly influenced Sir James Dalrymple in present time. sending his eldest boy for his earlier education at their best in his pleading in the Countess of

His real merits as a lawyer were perhaps shewn to Eton.

Sutherland's

This he wrote After a distinctly successful career there, guardian, and after he was raised to the Bench,

. law, and thereafter spent a considerable time of such pleadings, and is to the present day

It won the cause, was for many years the model travelling in France. He thus lived the greater part of his earlier descent through females in the older Scottish

referred to by peerage lawyers to demonstrate life away from the companionship of his own

titles. compatriots, and acquired a very different outlook from most of his contemporaries ; his

In 1766 Dalrymple was raised to the Bench

and took the title of Lord Hailes. predilection for English modes and manners and his speech noticeably accentuating the bated success at the Bar in his profession shewed

As a judge, the characteristics that had comdifferences between him and the majority of themselves, but to much less an extent.

In educated Scots, for at that time the vernacular

an age when the Bench was noted for lack of held sway in the Scottish Courts, being in use alike by counsel, litigants, and Bench.

feeling, insobriety, and laxity of morals, the The very fact that he could neither

genuine qualities of his character shew up to

express nor appreciate fully the variations and dis- great advantage, though doubtless affording less tinctions of the different Scots phrases or tricities of his fellow judges.

interesting reading than the vices and eccenwords in common use must from the first have been a drawback to him in his ordinary work earning for himself the sobriquet of the “ Hang

As a foil to Justice-Clerk Braxfield, who was at the Parliament House.

Socially it tended to widen the gulf between ing Judge,” Hailes was distinguished for his him and the literati in Edinburgh, and en

humanity and fairness. couraged the literary acquaintanceship which and assiduity as well as for restraint in the

In civil causes he was remarked for patience he had formed in England to ripen gradually

. into deeper friendship. James Boswell (bio- use of that irony of which he was so great a

master. And yet his pedantry and insistence grapher of Dr Johnson) seems to have been the only prominent literary Scotsman with whom on strict accuracy even in small matters must he was on terms of intimacy.

have been intensely annoying to his conAdmitted to the Bar on the 23rd February having dismissed a case because a document

temporaries. The incident related of his 1748, Dalrymple was for several reasons unable for long to acquire that position in his pro- final "e" at the end is commemorated in the

contained the word ' justice without the fession which was confidently expected of him

lines : by his friends. His "weak, ill-tuned voice," that type of pedantry which is so often associ- “To judge of this matter, I cannot pretend,

For justice, my Lord, wants an 'e' at the end.” 1 Bacon's Essays, “Of Judicature." • Ramsay's “Scotland and Scotsmen," I. 394.

1“ Court of Session Garland,” Boswell.

As legal historian he had great aptitude. a mark more notable than that of any outThe small specimen of his work on statute law standing judicial decision or literary mastercontemplated but, owing to lack of support, piece of his day.

A. G. E. H. not completed, is sufficient to shew both what has been missed by posterity and the thorough nature of all work undertaken by him. The

THOU SHALT NOT STEAL"! suggestion of this thesis probably came from a work then recently published in England by In the several thousand years which have Barrington on “ Ancient English Statutes.” 1 passed since Moses first read those words in the

It is, however, as a protagonist of the his- Tables of the Law, we might have supposed torical method that posterity owes most to that humanity would have obtained a clear Lord Hailes.

idea of their meaning. Many years' experience His critical and analytical ability is shewn at of public prosecution has, on the contrary, its best in his Annals of Scotland from the satisfied the writer that this is not so. re is Accession of Robert sirnamed Bruce to the no class of crime as to which prosecutors have Accession of the House of Stuart."

more frequently to reject charges, and because This work was formed on the model of such charges usually arise out of ill-will, a conPresident Hénault's “Abrégé Chronologique siderable amount of bad feeling is transferred de l'histoire de France."

from the complainer to the unhappy prose“Lord Hailes'. Annals of Scotland,' "" writes cutor. Even his professional brethren do not Johnson, “ have not that painted form, which always see clearly in this matter, and it may is the taste of this age ; but it is a book which be desirable that the writer should explain will always sell, it has such a stability of dates, certain things which are necessary before a such a certainty of facts and such a punctuality man can charge his neighbour with a breach of citation. I never before read Scottish of the eighth commandment. history with certainty."

If a hundred persons were asked to say

what Dr Johnson's views of its merits were not, was their idea of theft, ninety-nine would at however, shared by his contemporaries, for the once reply: “Taking the property of another reception accorded to the book discouraged without his consent. The answer would be Hailes from attempting a continuation of the true, but not the whole truth, and the portion work. A people so race-conscious as the Scots of truth omitted is most important. Let us were not likely to appreciate the destroyer of look at a few definitions. their most treasured legends; nevertheless, Hume (I. 57): “The felonious taking and subsequent generations of his countrymen carrying away of the property of another, for recognise the value of his opinions and ap- lucre." This is a free translation of Digest preciate his “ Annals."

(XLVII. ii. 3): “Contrectatio rei fraudulosa, Dalrymple's work was all the more praise- iucri faciendi gratia." The derivation of the worthy in rejecting from the true the mass of word furtum, suggested by the Roman lawyer fable and gloss with which up to that date Labeo, indicates the characteristic feature of Scottish history had been interlarded.

the crime, associating it with blackness or darkIts unfavourable reception hurt Lord Hailes' ness (furvum), because theft is normally comfeelings, and undoubtedly prevented him mitted secretly, hiddenly, and often by night. from continuing his work, which he had Alison (I. 250): “ The secret and felonious intended to continue to the end of the Stuart abstraction of the property of another, for the dynasty.

sake of lucre, without his consent.” This To sum up, Lord Hailes' life seems to shew definition adds two qualifications—the abstracthe advantages and to accentuate the dis- tion has to be secret and without the consent advantages of a type of education vastly of the owner. different from that of a man's national con- Macdonald (p. 18): "The felonious taking and temporaries.

appropriation of property without the consent With many of the marks and abilities of of the owner or custodier." Here the author greatness, Lord Hailes seems to fall short of abandons secrecy and the desire for lucre, but its attainment by pedantry and by lack of introduces the custodier. perseverance.

In every one of these definitions the word His legal accomplishments are marred by the felonious occurs. What is felonious approformer, and his historical achievements cur- priation ? Lord Young, in an embezzlement tailed by the latter; and yet in spite of case (Lee, 1884, 5 Coup. 492), explained the these defects, his probity and moderation, his term acting wickedly and feloniously," fairness and uprightness of personal life leave “acting dishonestly, acting with the mind of a

thief or a knave, and intending to take his 1 “Memoirs of Lord Kames,” I. 208.

neighbour's property." Assuming that his

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