His ensign's place sell, but to be made a peat; Though be the mock faculty, ignorance should him cast, Yet a bill (with he's my brother) will him in bring at last. Old Nevoy13 by all is judged such a sott, That his peatship could ne'er be thought worth a groat. He then concludes his petition with craving "To be a peat to some peat, Or in Pittenweem's language to make his peat's meat." Their Lordships are next represented as remitting the application to Lord Castlehill, who, it would appear, was no great favourer of the system, as he upon 66 Considering the supplicatione, Declares that the peats are grievous to the nation; They plead without speaking, consult without wryting, And this they doe by some inspiratione ; And now they have found out a new way of flyting, This abuse was strictly in keeping with the constitution of the Court. The judges were selected, not on account of their qualifications for office, but because their subserviency rendered their appointment useful to their patrons; men of probity and honour were carefully excluded, and the law thus administered became the engine of tyranny and oppression, and those in power in this way had the means of enriching themselves at the expense of their neighbours. It was therefore a matter of importance to get the control of the Session, and numerous instances may be found in the records of the period, of attempts, sometimes successful, sometimes the reverse, to procure such ascendancy. Lord Balcarras, a keen jacobite, and a person not very likely to give a too highly coloured description of the practices of the time, in speaking of the Duke of Hamilton, observes: "He (the Duke) had no design but the ruin of the Lord Melvil and Lord Stair, and to get the Session filled with his own creatures, having at that time many lawsuits in hand.” The purity of the administration of justice may be further illustrated by the following anecdote, which is better authenticated than usually happens, inasmuch as Dr. Abercromby, a gentleman of great respectability, heard it related by the Earl of Rochester, one of the parties concerned, to the Honourable Robert Boyle : "A Scotch gentleman having entreated the Earl of Rochester to speak to the Duke of Lauderdale upon the account of a business that seemed to be supported by a clear and undoubted right, his Lordship very obligingly promised to do his utmost endeavours to engage the Duke to stand his friend in a concern so just and so reasonable as his was; and accordingly, having conferred with his Grace about the matter, the Duke made him this very odd return, that though he question'd not the right of the gentleman he recommended to him, yet he could not promise him an helping hand, and far less success in business, if he knew not first the man, whom perhaps his Lordship had some reason to conceal, because, said he to the Earl, 'if your Lordship were as well acquainted with the customs of Scotland as I am, you had undoubtedly known this among others: Show me the man, and I shall show you the law, giving him to understand that the law in Scotland could protect no man, if either his purse were empty or his adversaries great men, or supported by great ones." 17 Amongst other evils of those days, was one arising from the right of the Lord President to call cases not according to any fixed order of enrolment but as suited his own pleasure; thus, when there was a purpose to serve, and when some of the judges who might be opposed to the President's views were absent, either attending their outer-house duty or otherwise engaged, a particular case was called and decided. To correct this flagrant abuse, an Act of Parliament's had been passed, ordering that every cause to be heard in the Inner-House should be enrolled and called, according to the date of its registration; and declaring, that any decision pronounced in any cause out of the proper order, should go for nothing. Notwithstanding this enactment, the disgraceful practice continued, of calling cases at the option of the presiding judge, until the elevation of Duncan Forbes to that high office.19 It was in consequence of a manœuvre of this kind that an attempt was made to controul the Court by an Appeal to Parliament. In a law-suit between the Earls of Dunfermline and Callender, Lauderdale, who was an extraordinary Lord of Session, favoured one of the parties, and resolved to influence the decision of the judges by his voice and presence. The President, Sir James Dalrymple, afterwards Viscount Stair, an illustrious name in the annals of Scotish Jurisprudence, we regret to admit, lent himself to his Grace's measures, and in defiance of the recent Statute, called the cause out of its regular order. The result was, of course, favourable to the Duke's protegee; and Lord Callender (then Lord Almond) entered an Appeal to the Scotish Parliament, a step of considerable boldness and doubtful competency, but which met with support from many of the leading lawyers of the time, including Lockhart and Mackenzie. The President and some of his creatures took alarm at this decisive measure; and, from the influence they possessed at Court, induced Charles II. and his ministers to suppose that this step was a most factious and dangerous proceeding, on the part of a the part of a few only of the Faculty of Advocates. Upon this, a letter came down, dated 19th May, 1674, declaring his Majesty's extreme "dissatisfaction and abhorrence" of appeals, and prohibiting all members of the College of Justice from sanctioning or countenancing them in future.20 The Marquis of Huntly, on behalf of the Earl of Aboyne, his nephew, followed Lord Callender's example, by entering an appeal in a cause in which his ward had been unsuccessful, but this appeal, as well as the preceding one, was annulled by the letter before alluded to. Lord Fountainhall, in his unpublished manuscripts, gives the following account of what subsequently took place in the later case. "When the Marquis returned from the French camp, my Lord Lauderdale persuaded him judicially to compear before the Lords of Session, and take up his appeal, and declare he passed from it, and which he did on the 26th of January, 1675, and then promised him not only a new hearing, but gave him some insinuations to hope a redress. Yet, after a second debate, they adhered to their former interlocutor, and so he was either ill or well served for his complimenting them; but the times were such, as no rational man could expect an alteration from them, of what had escaped from them, though unawares: they blushed to confess what is incident to humanity itself (nam humanum est errare), where their honour was once engaged at the stake." "21 His Majesty's letter did not produce the result anticipated. The advocates still continued refractory, and an open rupture with the Court was the consequence. It is remarkable, that in the number of malcontents the names of Sir George Lockhart, afterwards President, and Sir The George Mackenzie, Lord Advocate, are to be found. refractory barristers continued long obstinate, one portion of them residing at Haddington, under Sir George Lockhart as their leader, and another proceeding to Linlithgow, under the auspices of Sir John Cunningham. This dispute amongst the lawyers gave rise to a variety of pasquinades, some of which have been preserved. The following parody, upon a well-known song of the time, entitled "I like my humour well, boys," is amusing enough: "The President with his head on one side,22 He swears that for treason we all shall be tryed; And I like my humour weill. The President bids us repent of our sin, And swears we'll be forfault if we don't come in; We answer him all, We care not a pin. And I like my humour weill, boyes, And I like humour weill." A Parody on "Farewell, fair Armida," 23 is perhaps a better specimen of the legal wit of the time : 1 Farewell Craigie Wallace,24 the cause of my grief, 2 Now prompted by hatred we know your intent Is to dissolve us like the Parliament; But we know, tho' we languish, in two months delay, We shall all be restored on Martinmas day. |