Chapter THE FIFTH: Scottish Judges

There is no class of men which stands out more prominent in the reminiscences of the last hundred years than that of our SCOTTISH JUDGES. They form, in many instances, a type or representative of the leading _peculiarities_ of Scottish life and manners. They are mixed up with all our affairs, social and political. There are to be found in the annals of the bench rich examples of pure Scottish humour, the strongest peculiarity of Scottish phraseology, acuteness of intellect, cutting wit, eccentricity of manners, and abundant powers of conviviality. Their successors no longer furnish the same anecdotes of oddity or of intemperance. The Courts of the Scottish Parliament House, without lacking the learning or the law of those who sat there sixty years ago, lack not the refinement and the dignity that have long distinguished the Courts of Westminster Hall.

Stories still exist, traditionary in society, amongst its older members, regarding Lords Gardenstone, Monboddo, Hermand, Newton, Polkemmet, Braxfield, etc. But many younger persons do not know them. It may be interesting to some of my readers to devote a few pages to the subject, and to offer some judicial gleanings[44].

I have two anecdotes to show that, both in social and judicial life, a remarkable change must have taken place amongst the "fifteen." I am assured that the following scene took place at the _table_ of Lord Polkemmet, at a dinner party in his house. When the covers were removed, the dinner was seen to consist of veal broth, a roast fillet of veal, veal cutlets, a florentine (an excellent old Scottish dish composed of veal), a calf's head, calf's foot jelly. The worthy judge could not help observing a surprise on the countenance of his guests, and perhaps a simper on some; so he broke out in explanation: "Ou ay, it's a cauf; when we kill a beast we just eat up ae side, and down the tither." The expressions he used to describe his own _judicial_ preparations for the bench were very characteristic: "Ye see I first read a' the pleadings, and then, after lettin' them wamble in my wame wi' the toddy twa or three days, I gie my ain interlocutor." For a moment suppose such anecdotes to be told now of any of our high legal functionaries. Imagine the feelings of surprise that would be called forth were the present Justice-Clerk to adopt such imagery in describing the process of preparing _his_ legal judgment on a difficult case in his court!

In regard to the wit of the Scottish _bar_.--It is a subject which I do not pretend to illustrate. It would require a volume for itself. One anecdote, however, I cannot resist, and I record it as forming a striking example of the class of Scottish humour which, with our dialect, has lost its distinctive characteristics. John Clerk (afterwards a judge by the title of Lord Eldin) was arguing a Scotch appeal case before the House of Lords. His client claimed the use of a mill-stream by a prescriptive right. Mr. Clerk spoke broad Scotch, and argued that "the _watter_ had rin that way for forty years. Indeed naebody kenn'd how long, and why should his client now be deprived of the watter?" etc. The chancellor, much amused at the pronunciation of the Scottish advocate, in a rather bantering tone asked him, "Mr. Clerk, do you spell water in Scotland with two t's?" Clerk, a little nettled at this hit at his national tongue, answered, "Na, my Lord, we dinna spell watter (making the word as short as he could) wi' twa t's, but we spell mainners (making the word as long as he could) wi' twa n's."

John Clerk's vernacular version of the motto of the Celtic Club is highly characteristic of his humour and his prejudice. He had a strong dislike to the whole Highland race, and the motto assumed by the modern Celts, "Olim marte, nunc arte," Clerk translated "Formerly robbers, now thieves." Quite equal to Swift's celebrated remark on William III.'s motto--_Recepit, non rapuit_--"that the receiver was as bad as the thief." Very dry and pithy too was Clerk's legal _opinion_ given to a claimant of the Annandale peerage, who, when pressing the employment of some obvious forgeries, was warned that if he persevered, nae doot he might be a peer, but it would be a peer o' anither _tree!_

The clever author of "Peter's Letters" gives an elaborate description of Clerk's character whilst at the bar, and speaks of him as "the plainest, the shrewdest, and the most sarcastic of men." Nor could he entirely repress these peculiarities when raised to the bench under the title of Lord Eldin.

His defence of a young friend, who was an advocate, and had incurred the displeasure of the Judges, has often been repeated. Mr. Clerk had been called upon to offer his apologies for disrespect, or implied disrespect, in his manner of addressing the Bench. The advocate had given great offence by expressing his "_astonishment_" at something which had emanated from their Lordships, implying by it his disapproval. He got Lord Eldin, who was connected with him, to make an apology for him. But Clerk could not resist his humorous vein by very equivocally adding, "My client has expressed his astonishment, my Lords, at what he had met with here; if my young friend had known this court as long as I have, he would have been _astonished at nothing_."

A kind Perthshire correspondent has sent me a characteristic anecdote, which has strong internal evidence of being genuine. When Clerk was raised to the Bench he presented his credentials to the Court, and, according to custom, was received by the presiding Judge--who, on this occasion, in a somewhat sarcastic tone, referred to the delay which had taken place in his reaching a position for which he had so long been qualified, and to which he must have long aspired. He hinted at the long absence of the Whig party from political power as the cause of this delay, which offended Clerk; and he paid it off by intimating in his pithy and bitter tone, which he could so well assume, that it was not of so much consequence--"Because," as he said, "ye see, my Lord, I was not juist sae sune _doited_ as some o' your Lordships."

The following account of his conducting a case is also highly characteristic. Two individuals, the one a mason, the other a carpenter, both residenters in West Portsburgh, formed a copartnery, and commenced building houses within the boundaries of the burgh corporation. One of the partners was a freeman, the other not. The corporation, considering its rights invaded by a non-freeman exercising privileges only accorded to one of their body, brought an action in the Court of Session against the interloper, and his partner as aiding and abetting. Mr. John Clerk, then an advocate, was engaged for the defendants. How the cause was decided matters little. What was really curious in the affair was the naively droll manner in which the advocate for the defence opened his pleading before the Lord Ordinary. "My Lord," commenced John, in his purest Doric, at the same time pushing up his spectacles to his brow and hitching his gown over his shoulders, "I wad hae thocht naething o't (the action), had hooses been a new invention, and my clients been caught ouvertly impingin' on the patent richts o' the inventors!"

Of Lord Gardenstone (Francis Garden) I have many early _personal_ reminiscences, as his property of Johnstone was in the Howe of the Mearns, not far from my early home. He was a man of energy, and promoted improvements in the county with skill and practical sagacity. His favourite scheme was to establish a flourishing town upon his property, and he spared no pains or expense in promoting the importance of his village of Laurencekirk. He built an excellent inn, to render it a stage for posting. He built and endowed an Episcopal chapel for the benefit of his English immigrants, in the vestry of which he placed a most respectable library; and he encouraged manufacturers of all kinds to settle in the place. Amongst others, as we have seen, came the hatter who found only three hats in the kirk. His lordship was much taken up with his hotel or inn, and for which he provided a large volume for receiving the written contributions of travellers who frequented it. It was the landlady's business to present this volume to the guests, and ask them to write in it during the evenings whatever occurred to their memory or their imagination. In the mornings it was a favourite amusement of Lord Gardenstone to look it over. I recollect Sir Walter Scott being much taken with this contrivance, and his asking me about it at Abbotsford. His son said to him, "You should establish such a book, sir, at Melrose;" upon which Sir W. replied, "No, Walter; I should just have to see a great deal of abuse of myself." On his son deprecating such a result, and on his observing my surprised look, he answered, "Well, well, I should have to read a great deal of foolish praise, which is much the same thing." An amusing account is given of the cause of Lord Gardenstone withdrawing this volume from the hotel, and of his determination to submit it no more to the tender mercies of the passing traveller. As Professor Stuart of Aberdeen was passing an evening at the inn, the volume was handed to him, and he wrote in it the following lines, in the style of the prophecies of Thomas the Rhymer:--

"Frae sma' beginnings Rome of auld
Became a great imperial city;
'Twas peopled first, as we are tauld,
By bankrupts, vagabonds, banditti.
Quoth Thamas, Then the day may come,
When Laurencekirk shall equal Rome."

These lines so nettled Lord Gardenstone, that the volume disappeared, and was never seen afterwards in the inn of Laurencekirk. There is another lingering reminiscence which I retain connected with the inn at Laurencekirk. The landlord, Mr. Cream, was a man well known throughout all the county, and was distinguished, in his later years, as one of the few men who continued to wear a _pigtail_. On one occasion the late Lord Dunmore (grandfather or great-grandfather of the present peer), who also still wore his queue, halted for a night at Laurencekirk. On the host leaving the room, where he had come to take orders for supper, Lord Dunmore turned to his valet and said, "Johnstone, do I look as like a fool in my pigtail as Billy Cream does?"--"Much about it, my lord," was the valet's imperturbable answer. "Then," said his lordship, "cut off mine to-morrow morning when I dress."

Lord Gardenstone seemed to have had two favourite tastes: he indulged in the love of pigs and the love of snuff. He took a young pig as a pet, and it became quite tame, and followed him about like a dog. At first the animal shared his bed, but when, growing up to advanced swinehood, it became unfit for such companionship, he had it to sleep in his room, in which he made a comfortable couch for it of his own clothes. His snuff he kept not in a box, but in a leathern waist-pocket made for the purpose. He took it in enormous quantities, and used to say that if he had a dozen noses he would feed them all. Lord Gardenstone died 1793.

Lord Monboddo (James Burnet, Esq. of Monboddo) is another of the well-known members of the Scottish Bench, who combined, with many eccentricities of opinion and habits, great learning and a most amiable disposition. From his paternal property being in the county of Kincardine, and Lord M. being a visitor at my father's house, and indeed a relation or clansman, I have many early reminiscences of stories which I have heard of the learned judge. His speculations regarding the origin of the human race have, in times past, excited much interest and amusement. His theory was that man emerged from a wild and savage condition, much resembling that of apes; that man had then a tail like other animals, but which by progressive civilisation and the constant habit of _sitting_, had become obsolete. This theory produced many a joke from facetious and superficial people, who had never read any of the arguments of the able and elaborate work, by which the ingenious and learned author maintained his theory[45]. Lord Kames, a brother judge, had his joke on it. On some occasion of their meeting, Lord Monboddo was for giving Lord Kames the precedency. Lord K. declined, and drew back, saying, "By no means, my lord; you must walk first, that I may _see your tail_." I recollect Lord Monboddo's coming to dine at Fasque caused a great excitement of interest and curiosity. I was in the nursery, too young to take part in the investigations; but my elder brothers were on the alert to watch his arrival, and get a glimpse of his tail. Lord M. was really a learned man, read Greek and Latin authors--not as a mere exercise of classical scholarship--but because he identified himself with their philosophical opinions, and would have revived Greek customs and modes of life. He used to give suppers after the manner of the ancients, and used to astonish his guests by the ancient cookery of Spartan broth, and of _mulsum_. He was an enthusiastical Platonist. On a visit to Oxford, he was received with great respect by the scholars of the University, who were much interested in meeting with one who had studied Plato as a pupil and follower. In accordance with the old custom at learned universities, Lord Monboddo was determined to address the Oxonians in Latin, which he spoke with much readiness. But they could not stand the numerous slips in prosody. Lord Monboddo shocked the ears of the men of Eton and of Winchester by dreadful false quantities--verse-making being, in Scotland, then quite neglected, and a matter little thought of by the learned judge.

Lord Monboddo was considered an able lawyer, and on many occasions exhibited a very clear and correct judicial discernment of intricate cases. It was one of his peculiarities that he never sat on the bench with his brother judges, but always at the clerk's table. Different reasons for this practice have been given, but the simple fact seems to have been, that he was deaf, and heard better at the lower seat. His mode of travelling was on horseback. He scorned carriages, on the ground of its being unmanly to "sit in a box drawn by brutes." When he went to London he rode the whole way. At the same period, Mr. Barclay of Ury (father of the well-known Captain Barclay), when he represented Kincardineshire in Parliament, always _walked_ to London. He was a very powerful man, and could walk fifty miles a day, his usual refreshment on the road being a bottle of port wine, poured into a bowl, and drunk off at a draught. I have heard that George III. was much interested at these performances, and said, "I ought to be proud of my Scottish subjects, when my judges _ride_, and my members of Parliament _walk_ to the metropolis."

On one occasion of his being in London, Lord Monboddo attended a trial in the Court of King's Bench. A cry was heard that the roof of the court-room was giving way, upon which judges, lawyers, and people made a rush to get to the door. Lord Monboddo viewed the scene from his corner with much composure. Being deaf and short-sighted, he knew nothing of the cause of the tumult. The alarm proved a false one; and on being asked why he had not bestirred himself to escape like the rest, he coolly answered that he supposed it was an _annual ceremony_, with which, as an alien to the English laws, he had no concern, but which he considered it interesting to witness as a remnant of antiquity! Lord Monboddo died 1799.

Lord Rockville (the Hon. Alexander Gordon, third son of the Earl of Aberdeen) was a judge distinguished in his day by his ability and decorum. "He adorned the bench by the dignified manliness of his appearance, and polished urbanity of his manners[46]." Like most lawyers of his time, he took his glass freely, and a whimsical account which he gave, before he was advanced to the bench, of his having fallen upon his face, after making too free with the bottle, was commonly current at the time. Upon his appearing late at a convivial club with a most rueful expression of countenance, and on being asked what was the matter, he exclaimed with great solemnity, "Gentlemen, I have just met with the most extraordinary adventure that ever occurred to a human being. As I was walking along the Grassmarket, all of a sudden _the street rose up and struck me on the face_." He had, however, a more serious _encounter_ with the street after he was a judge. In 1792, his foot slipped as he was going to the Parliament House; he broke his leg, was taken home, fevered, and died.

Lord Braxfield (Robert M'Queen of Braxfield) was one of the judges of the old school, well known in his day, and might be said to possess all the qualities united, by which the class were remarkable. He spoke the broadest Scotch. He was a sound and laborious lawyer. He was fond of a glass of good claret, and had a great fund of good Scotch humour. He rose to the dignity of Justice-Clerk, and, in consequence, presided at many important political criminal trials about the year 1793-4, such as those of Muir, Palmer, Skirving, Margarot, Gerrold, etc. He conducted these trials with much ability and great firmness, occasionally, no doubt, with more appearance of severity and personal prejudice than is usual with the judges who in later times are called on to preside on similar occasions. The disturbed temper of the times and the daring spirit of the political offenders seemed, he thought, to call for a bold and fearless front on the part of the judge, and Braxfield was the man to show it, both on the bench and in common life. He met, however, sometimes with a spirit as bold as his own from the prisoners before him. When Skirving was on trial for sedition, he thought Braxfield was threatening him, and by gesture endeavouring to intimidate him; accordingly, he boldly addressed the Bench:--"It is altogether unavailing for your Lordship to menace me, for I have long learnt not to fear the face of man." I have observed that he adhered to the _broadest_ Scottish dialect. "Hae ye ony coonsel, man?" he said to Maurice Margarot (who, I believe, was an Englishman). "No," was the reply. "Div ye want to hae ony appinted?" "No," replied Margarot; "I only want an _interpreter_ to make me understand what your Lordship says." A prisoner, accused of stealing some linen garments, was one day brought up for trial before the old judge, but was acquitted because the prosecutor had charged him with stealing shirts, whereas the articles stolen were found to be shifts--female apparel. Braxfield indignantly remarked that the Crown Counsel should have called them by the Scottish name of _sarks_, which applied to both sexes.

Braxfield had much humour, and enjoyed wit in others. He was immensely delighted at a reply by Dr. M'Cubbin, the minister of Bothwell. Braxfield, when Justice-Clerk, was dining at Lord Douglas's, and observed there was only port upon the table. In his usual off-hand brusque manner, he demanded of the noble host if "there was nae claret i' the castle." "Yes," said Lord Douglas; "but my butler tells me it is not good." "Let's pree't," said Braxfield in his favourite dialect. A bottle was produced, and declared by all present to be quite excellent. "Noo, minister," said the old judge, addressing Dr. M'Cubbin, who was celebrated as a wit in his day, "as a _fama clamosa_ has gone forth against this wine, I propose that you _absolve_ it,"--playing upon the terms made use of in the Scottish Church Courts. "Ay, my Lord," said the minister, "you are first-rate authority for a case of civil or criminal law, but you do not quite understand our Church Court practice. We never absolve _till after three several appearances_." The wit and the condition of absolution were alike relished by the judge. Lord Braxfield closed a long and useful life in 1799.

Of Lord Hermand we have already had occasion to speak, as in fact his name has become in some manner identified with that conviviality which marked almost as a characteristic the Scottish Bench of his time. He gained, however, great distinction as a judge, and was a capital lawyer. When at the bar, Lords Newton and Hermand were great friends, and many were the convivial meetings they enjoyed together. But Lord Hermand outlived all his old last-century contemporaries, and formed with Lord Balgray what we may consider the connecting links between the past and the present race of Scottish lawyers.

Lord Kames was a keen agricultural experimentalist, and in his _Gentleman Farmer_ anticipated many modern improvements. He was, however, occasionally too sanguine. "John," said he one day to his old overseer, "I think we'll see the day when a man may carry out as much chemical manure in his waistcoat pocket as will serve for a whole field." "Weel," rejoined the other, "I am of opinion that if your lordship were to carry out the dung in your waistcoat pocket, ye might bring hame the crap in your greatcoat pocket."

We could scarcely perhaps offer a more marked difference between habits _once_ tolerated on the bench and those which now distinguish the august seat of Senators of Justice, than by quoting, from _Kay's Portraits_, vol. ii. p. 278, a sally of a Lord of Session of those days, which he played off, when sitting as judge, upon a young friend whom he was determined to frighten. "A young counsel was addressing him on some not very important point that had arisen in the division of a common (or commonty, according to law phraseology), when, having made some bold averment, the judge exclaimed, 'That's a lee, Jemmie,' 'My lord!' ejaculated the amazed barrister. 'Ay, ay, Jemmie; I see by your face ye're leein'.' 'Indeed, my lord, I am not.' 'Dinna tell me that; it's no in your memorial (brief)--awa wi' you;' and, overcome with astonishment and vexation, the discomfited barrister left the bar. The judge thereupon chuckled with infinite delight; and beckoning to the clerk who attended on the occasion, he said, 'Are ye no Rabbie H----'s man?' 'Yes, my lord.' 'Wasna Jemmie----leein'?' 'Oh no, my lord.' 'Ye're quite sure?' Oh yes.' 'Then just write out what you want, and I'll sign it; my faith, but I made Jemmie stare.' So the decision was dictated by the clerk, and duly signed by the judge, who left the bench highly diverted with the fright he had given his young friend." Such scenes enacted in court _now_ would astonish the present generation, both of lawyers and of suitors.

We should not do justice to our Scottish Reminiscences of judges and lawyers, if we omitted the once celebrated Court of Session _jeu d'esprit_ called the "Diamond Beetle Case." This burlesque report of a judgment was written by George Cranstoun, advocate, who afterwards sat in court as judge under the title of Lord Corehouse. Cranstoun was one of the ablest lawyers of his time; he was a prime scholar, and a man of most refined taste and clear intellect. This humorous and clever production was printed in a former edition of these Reminiscences, and in a very flattering notice of the book which appeared in the _North British Review_, the reviewer--himself, as is well known, a distinguished member of the Scottish judicial bench--remarks: "We are glad that the whole of the 'Diamond Beetle' by Cranstoun has been given; for nothing can be more graphic, spirited, and ludicrous, than the characteristic speeches of the learned judges who deliver their opinions in the case of defamation." As copies of this very clever and jocose production are not now easily obtained, and as some of my younger readers may not have seen it, I have reprinted it in this edition. Considered in the light of a memorial of the bench, as it was known to a former generation, it is well worth preserving; for, as the editor of _Kay's Portraits_ well observes, although it is a caricature, it is entirely without rancour, or any feeling of a malevolent nature towards those whom the author represents as giving judgment in the "Diamond Beetle" case. And in no way could the involved phraseology of Lord Bannatyne, the predilection for Latin quotation of Lord Meadowbank, the brisk manner of Lord Hermand, the anti-Gallic feeling of Lord Craig, the broad dialect of Lords Polkemmet and Balmuto, and the hesitating manner of Lord Methven, be more admirably caricatured.

FULL COPY OF THE FINDING OF THE COURT IN
THE ONCE CELEBRATED "DIAMOND BEETLE
CASE[47]."

_Speeches taken at advising the Action of Defamation and
Damages,_ ALEXANDER CUNNINGHAM, _Jeweller in
Edinburgh, against_ JAMES EUSSELL, _Surgeon there_.

"THE LORD PRESIDENT (Sir ILAY CAMPBELL).--Your Lordships
have the petition of Alexander Cunningham against Lord
Bannatyne's interlocutor. It is a case of defamation and
damages for calling the petitioner's _Diamond Beetle_ an
_Egyptian Louse_. You have the Lord Ordinary's distinct
interlocutor, on pages 29 and 30 of this petition:--'Having
considered the Condescendence of the pursuer, Answers for the
defender,' and so on; 'Finds, in respect that it is not
alleged that the diamonds on the back of the Diamond Beetle
are real diamonds, or anything but shining spots, such as are
found on other Diamond Beetles, which likewise occur, though
in a smaller number, on a great number of other Beetles,
somewhat different from the Beetle libelled, and similar to
which there may be Beetles in Egypt, with shining spots on
their backs, which may be termed Lice there, and may be
different not only from the common Louse, but from the Louse
mentioned by Moses as one of the plagues of Egypt, which is
admitted to be a filthy troublesome Louse, even worse than
the said Louse, which is clearly different from the Louse
libelled. But that the other Louse is the same with, or
similar to, the said Beetle, which is also the same with the
other Beetle; and although different from the said Beetle
libelled, yet, as the said Beetle is similar to the other
Beetle, and the said Louse to the other Louse libelled; and
the other Louse to the other Beetle, which is the same with,
or similar to, the Beetle which somewhat resembles the Beetle
libelled; assoilzies the defender, and finds expenses due.'

"Say away, my Lords.

"LORD MEADOWBANK.--This is a very intricate and puzzling
question, my Lord. I have formed no decided opinion; but at
present I am rather inclined to think the interlocutor is
right, though not upon the _ratio_ assigned in it. It appears
to me that there are two points for consideration. _First_,
whether the words libelled amount to a _convicium_ against
the Beetle; and _Secondly_, admitting the _convicium_,
whether the pursuer is entitled to found upon it in this
action. Now, my Lords, if there be a _convicium_ at all, it
consists in the _comparatio_ or comparison of the
_Scaraboeus_ or Beetle with the Egyptian _Pediculus_ or
_Louse_. My first doubt regards this point, but it is not at
all founded on what the defender alleges, that there is no
such animal as an Egyptian _Pediculus_ or _Louse in rerum
natura_; for though it does not _actually_ exist, it may
_possibly_ exist (if not in _actio_, yet in _potentia_--if
not in actuality, yet in potentiality or capacity); and
whether its existence be in _esse vel posse_, is the same
thing to this question, provided there be _termini habiles_
for ascertaining what it would be if it did exist. But my
doubt is here:--How am I to discover what are the _essentia_
of any Louse, whether Egyptian or not? It is very easy to
describe its accidents as a naturalist would do--to say that
it belongs to the tribe of _Aptera_ (or, that is, a yellow,
little, greedy, filthy, despicable reptile), but we do not
learn from this what the _proprium_ of the animal is in a
logical sense, and still less what its _differentia_ are.
Now, without these it is impossible to judge whether there is
a _convicium_ or not; for, in a case of this kind, which
_sequitur naturam delicti_, we must take them _meliori
sensu_, and presume the _comparatio_ to be _in melioribus
tantum_. And here I beg that parties, and the bar in
general--[interrupted by Lord Hermand: _Your Lordship should
address yourself to the Chair_]--I say, I beg it may be
understood that I do not rest my opinion on the ground that
_veritas convicii excusat_. I am clear that although this
Beetle actually were an Egyptian Louse, it would accord no
relevant defence, provided the calling it so were a
_convicium_; and there my doubt lies.

"With regard to the second point, I am satisfied that the
_Scaraboeus_ or Beetle itself has no _persona standi in
judicio_; and therefore the pursuer cannot insist in the name
of the _Scaraboeus_, or for his behoof. If the action lie at
all, it must be at the instance of the pursuer himself, as
the _verus dominus_ of the _Scaraboeus_, for being
calumniated through the _convicium_ directed primarily
against the animal standing in that relation to him. Now,
abstracting from the qualification of an actual _dominium_,
which is not alleged, I have great doubts whether a mere
_convicium_ is necessarily transmitted from one object to
another, through the relation of a _dominium_ subsisting
between them; and if not necessarily transmissible, we must
see the principle of its actual transmission here; and that
has not yet been pointed out.

"LORD HERMAND.--We heard a little ago, my Lord, that there is
a difficulty in this case; but I have not been fortunate
enough, for my part, to find out where the difficulty lies.
Will any man presume to tell me that a Beetle is not a
Beetle, and that a Louse is not a Louse? I never saw the
petitioner's Beetle, and what's more I don't care whether I
ever see it or not; but I suppose it's like other Beetles,
and that's enough for me.

"But, my Lord, I know the other reptile well. I have seen
them, I have felt them, my Lord, ever since I was a child in
my mother's arms; and my mind tells me that nothing but the
deepest and blackest malice rankling in the human breast
could have suggested this comparison, or led any man to form
a thought so injurious and insulting. But, my Lord, there's
more here than all that--a great deal more. One could have
thought the defender would have gratified his spite to the
full by comparing the Beetle to a common Louse--an animal
sufficiently vile and abominable for the purpose of
defamation--[_Shut that door there_]--but he adds the epithet
_Egyptian_, and I know well what he means by that epithet. He
means, my Lord, a Louse that has been fattened on the head of
a _Gipsy or Tinker_, undisturbed by the comb or nail, and
unmolested in the enjoyment of its native filth. He means a
Louse grown to its full size, ten times larger and ten times
more abominable than those with which _your Lordships and I
are familiar_. The petitioner asks redress for the injury so
atrocious and so aggravated; and, as far as my voice goes, he
shall not ask it in vain.

"LORD CRAIG.--I am of the opinion last delivered. It appears
to me to be slanderous and calumnious to compare a Diamond
Beetle to the filthy and mischievous animal libelled. By an
Egyptian Louse I understand one which has been formed on the
head of a native Egyptian--a race of men who, after
degenerating for many centuries, have sunk at last into the
abyss of depravity, in consequence of having been subjugated
for a time by the French. I do not find that Turgot, or
Condorcet, or the rest of the economists, ever reckoned the
combing of the head a species of productive labour; and I
conclude, therefore, that wherever French principles have
been propagated, _Lice_ grow to an immoderate size,
especially in a warm climate like that of Egypt. I shall only
add, that we ought to be sensible of the blessings we enjoy
under a free and happy Constitution, where Lice and men live
under the restraint of equal laws the only equality that can
exist in a well-regulated state.

"LORD POLKEMMET.--It should be observed, my Lord, that what
is called a Beetle is a reptile very well known in this
country. I have seen mony are o' them in Drumshorlin Muir; it
is a little black beastie, about the size of my thoom-nail.
The country-folks ca' them Clocks; and I believe they ca'
them also Maggy-wi'-the-mony-feet; but they are not the least
like any Louse that ever I saw; so that, in my opinion,
though the defender may have made a blunder through
ignorance, in comparing them, there does not seem to have
been any _animus injuriandi_; therefore I am for refusing the
petition, my Lords.

"LORD BALMUTO.--'Am[48] for refusing the petition. There's
more Lice than Beetles in Fife. They ca' them Clocks there.
What they ca' a Beetle is a thing as lang as my arm; thick at
one end and sma' at the other. I thought, when I read the
petition, that the Beetle or Bittle had been the thing that
the women have when they are washing towels or napery
with--things for dadding them with; and I see the petitioner
is a jeweller till his trade; and I thought he had are o'
thae Beetles, and set it all round with diamonds; and I
thought it a foolish and extravagant idea; and I saw no
resemblance it could have to a Louse. But I find I was
mistaken, my Lord; and I find it only a Beetle-clock the
petitioner has; but my opinion's the same as it was before. I
say, my Lords, 'am for refusing the petition, I say--

"LORD WOODHOUSELEE.--There is a case abridged in the third
volume of the _Dictionary of Decisions_, Chalmers _v._
Douglas, in which it was found that _veritas convicii
excusat_, which may be rendered not literally, but in a free
and spirited manner, according to the most approved
principles of translation, 'the truth of calumny affords a
relevant defence.' If, therefore, it be the law of Scotland
(which I am clearly of opinion it is) that the truth of the
calumny affords a relevant defence, and if it be likewise
true that the Diamond Beetle is really an Egyptian Louse, I
am inclined to conclude (though certainly the case is
attended with difficulty) that the defender ought to be
assoilzied.--_Refuse_.

"LORD JUSTICE-CLERK (RAE).--I am very well acquainted with
the defender in this action, and have respect for him, and
esteem him likewise. I know him to be a skilful and expert
surgeon, and also a good man; and I would do a great deal to
serve him or to be of use to him, if I had it in my power to
do so. But I think on this occasion he has spoken rashly, and
I fear foolishly and improperly. I hope he had no bad
intention--I am sure he had not. But the petitioner (for whom
I have likewise a great respect, because I knew his father,
who was a very respectable baker in Edinburgh, and supplied
my family with bread, and very good bread it was, and for
which his accounts were regularly discharged), it seems, has
a Clock or a Beetle, I think it is called a Diamond Beetle,
which he is very fond of, and has a fancy for, and the
defender has compared it to a Louse, or a Bug, or a Flea, or
a worse thing of that kind, with a view to render it
despicable or ridiculous, and the petitioner so likewise, as
the proprietor or owner thereof. It is said that this is a
Louse _in fact_, and that the _veritas convicii excusat_; and
mention is made of a decision in the case of Chalmers _v._
Douglas. I have always had a great veneration for the
decisions of your Lordships; and I am sure will always
continue to have while I sit here; but that case was
determined by a very small majority, and I have heard your
Lordships mention it on various occasions, and you have
always desiderated the propriety of it, and I think have
departed from it in some instances. I remember the
circumstances of the case well:--Helen Chalmers lived in
Musselburgh, and the defender, Mrs. Douglas, lived in
Fisherrow; and at that time there was much intercourse
between the genteel inhabitants of Fisherrow, and
Musselburgh, and Inveresk, and likewise Newbigging; and there
were balls, or dances, or assemblies every fortnight, or
oftener, and also sometimes I believe every week; and there
were card-parties, assemblies once a fortnight, or oftener;
and the young people danced there also, and others played at
cards, and there were various refreshments, such as tea and
coffee, and butter and bread, and I believe, but I am not
sure, porter and negus, and likewise small beer. And it was
at one of these assemblies that Mrs. Douglas called Mrs.
Chalmers very improper names. And Mrs. Chalmers brought an
action of defamation before the Commissaries, and it came by
advocation into this Court, and your Lordships allowed a
proof of the _veritas convicii_, and it lasted a very long
time, and in the end answered no good purpose even to the
defender herself, while it did much hurt to the pursuer's
character. I am therefore for REFUSING such a proof in this
case, and I think the petitioner in this case and his Beetle
have been slandered, and the petition ought to be seen.

"LORD METHVEN.--If I understand this--a--a--a--interlocutor,
it is not said that the--a--a--a--a--Egyptian Lice are
Beetles, but that they may be, or--a--a--a--a--resemble
Beetles. I am therefore for sending the process to the
Ordinary to ascertain the fact, as I think it depends upon
that whether there be--a--a--a--a--_convicium_ or not. I
think also the petitioner should be ordained
to--a--a--a--produce his Beetle, and the defender an Egyptian
Louse or _Pediculus_, and if he has not one, that he should
take a diligence--a--a--a--against havers to recover Lice of
various kinds; and these may be remitted to Dr. Monro, or Mr.
Playfair, or to some other naturalist, to report upon
the subject.

"Agreed to."

This is clearly a Reminiscence of a bygone state of matters
in the Court of Session. I think every reader in our day, of
the once famous Beetle case, will come to the conclusion
that, making all due allowance for the humorous embellishment
of the description, and even for some exaggeration of
caricature, it describes what was once a real state of
matters, which, he will be sure, is real no more. The day of
Judges of the Balmuto-Hermand-Polkemmet class has passed
away, and is become a Scottish _Reminiscence_. Having thus
brought before my readers some Reminiscences of past times
from the Courts of Justice, let me advert to one which
belongs to, or was supposed to belong to, past days of our
Scottish universities. It is now a matter of tradition. But
an idea prevailed, whether correctly or incorrectly, some
eighty or a hundred years ago, that at northern colleges
degrees were regularly sold, and those who could pay the
price obtained them, without reference to the merits or
attainments of those on whom they were conferred. We have
heard of divers jokes being passed on those who were supposed
to have received such academical honours, as well as on those
who had given them. It is said Dr Samuel Johnson joined in
this sarcastic humour. But his prejudices both against
Scotland and Scottish literature were well known. Colman, in
his amusing play of the "Heir at Law," makes his Dr. Pangloss
ludicrously describe his receiving an LL.D. degree, on the
grounds of his own celebrity (as he had never seen the
college), and his paying the heads one pound fifteen
shillings and threepence three farthings as a handsome
compliment to them on receiving his diploma. Colman certainly
had studied at a northern university. But he might have gone
into the idea in fun. However this may be, an anecdote is
current in the east of Scotland, which is illustrative of
this real or supposed state of matters, to which we may
indeed apply the Italian phrase that if "non vero" it is "ben
trovato." The story is this:--An East Lothian minister,
accompanied by his man, who acted as betheral of his parish,
went over to a northern university to purchase his degree,
and on their return home he gave strict charge to his man,
that as now he was invested with academical honour, he was to
be sure to say, if any one asked for the minister, "O yes,
the Doctor is at home, or the Doctor is in the study, or the
Doctor is out, as the case might be." The man at once
acquiesced in the propriety of this observance on account of
his master's newly-acquired dignity. But he quietly added,
"Ay, ay, minister; an' if ony are speirs for me, the servants
maun be sure to say, Oh, the Doctor's in the stable, or the
Doctor's in the kitchen, or the Doctor's in the garden or the
field." "What do you mean, Dauvid?" exclaimed his astonished
master; "what can _you_ have to do with Doctor?" "Weel, ye
see, sir," said David, looking very knowing, "when ye got
your degree, I thought that as I had saved a little money, I
couldna lay it out better, as being betheral of the church,
than tak out a degree to mysell." The story bears upon the
practice, whether a real or a supposed one; and we may fairly
say that under such principals as Shairp, Tulloch, Campbell,
Barclay, who now adorn the Scottish universities, we have a
guarantee that such reports must continue to be Reminiscence
and traditional only.

FOOTNOTES:

[42] Bear.

[43] Rev. R. Scott of Cranwell.

[44] I have derived some information from a curious book, "Kay's Portraits," 2 vols. The work is scarcely known in England, and is becoming rare in Scotland. "Nothing can be more valuable in the way of engraved portraits than these representations of the distinguished men who adorned Edinburgh in the latter part of the eighteenth century."--_Chambers_.

[45] Origin and Progress of Language.

[46] Douglas' Peerage, vol. i. p. 22.

[47] The version I have given of this amusing burlesque was revised by the late Mr. Pagan, Cupar-Fife, and corrected from his own manuscript copy, which he had procured from authentic sources about forty years ago.

[48] His Lordship usually pronounced _I am_--_Aum_.