COURT OF SESSION GARLAND.

I.

ANECDOTES OF THE EARLY ADMINISTRATION OF JUSTICE IN SCOTLAND.

These Anecdotes formed the subject of an article communicated some years ago by the Editor of the present Volume to the Edinburgh Law Journal, a Periodical Work now consigned to the tomb of the Capulets, from whence it has been disinterred, and with various alterations and additions, has been prefixed as a suitable introduction to this Collection of Pieces, chiefly satirical, connected with the College of Justice and its Members. Of the truth of the charges brought against the early administration of justice in this country, there can be no reasonable doubt,-for setting aside the strong presumption arising from the mass of evidence referred to,-the Act of Parliament 1597,-the Acts of Sederunt 1677-1679 and 1690, the concurring and positive testimony of Buchanan,-of Johnston,-of Fountainhall,-of Balcarras, are too strong to be overturned. That there may have been, and probably were, honest men occasionally on the bench, may be true, but in those days dishonesty seems to have been the rule, and honesty the exception.

It may be doubted if, in any country, not even excepting France prior to the revolution, there can be found more

direct or positive instances of judicial corruption than may be traced in the annals of Scotish Jurisprudence. Indeed, from the institution of the College of Justice down to a comparatively recent date, hardly any one period can be pointed out as altogether free from taint.

Nor is it wonderful that the administration of justice should have been thus polluted; for, however national vanity may attempt to disguise the fact, there is no doubt that Scotland, while a separate Kingdom, had little pretension to be considered in the light of a civilized state. Her nobles were turbulent, unprincipled, and sanguinary, -her statesmen (with few exceptions) were generally influenced by any other motives than the good of their country, the lesser barons were semibarbarous, and the peasantry, especially in the Highland districts, almost entirely so. If any person is inclined to suppose this picture overcharged, a reference to Mr. Pitcairn's Criminal Trials a singularly curious and valuable work-will remove all his doubts.1

Even the clergy were not altogether unaffected by the state of society in which they were placed. They partook too much of the stern spirit of the age; and it is melancholy to reflect that even our venerable Reformer has spoken complacently of the murder of Cardinal Beaton, -thus inferentially, if not directly, affording his high sanction to that most detestable of all maxims, that "the end justifies the means." It would have been, therefore, somewhat surprising if the judges should have been the only portion of the community uninjured by the pestilential atmosphere which they were inhaling.

At no distant interval from the institution of the College of Justice, the judges had become obnoxious; and Buchanan has recorded his opinion of the tyrannical exercise of their powers in the following striking terms: -"Omnium civium bona quindecim hominum arbitrio sunt commissa, quibus et perpetua est potestas, et im

perium plane tyranicum: quippe quorum arbitria sola sunt pro legibus." 2

The result of this exclusive arbitrary power may be anticipated. Subject to no control, the law was expounded by the judges in the way best suited to further their own purposes, and they gradually became so corrupt that the legislature interfered; and in the year 1579 an Act was passed prohibiting them, "be thame selffis or be thair wiffis or seruandes, (to) tak, in ony time cuming, buddis, brybes, guides or geir fra quhatsumever persone or persons presentlie havand, or that heirefter sall happyne to have, any actionis or caussis persewit befoir thaime, aither fra the persewer or defender," under pain of confiscation.

3

This enactment seems to have had little effect, as we find eighteen years afterwards that the judges were just as bad as ever; for Johnston, an historian of veracity, states: "Hac tempestate (1597) totus ordo judicum, paucorum improbitate, et audacia, infamatus. Inveteravit tum opinio, et omnium sermone percrebuit, pecuniosum hominem, neminem potuisse causa cadere. Alexander Regius, Advocatus acer, ut vehemens, illam labem et ignominiam ordinis callide observans, a clientibus suis pecuniam accepit: quam corruptis judicibus, pro suffragiis divideret. Hæc et similia in causa fuere, ut totus ordo gravi diuturnaque infamia laboraret."

During the time the bench was dignified by the presence of the Earl of Melros, (afterwards Haddington,) who for many years held the high office of Lord President, some check was put upon the venality of the Judges; but even under his Lordship's vigorous rule it was not wholly put down. Indeed many things might be instanced not exactly suited to our notions of judicial decorum. Thus we have the Lord Chancellor 5 superintending the law-suits of a friend, and writing to him the way and manner in which he proposed they should be conducted. It has been said, and although there does not seem to be sufficient.