William Roughead

A Brief Account of the Judges and Counsel Engaged in the Trial of Deacon Brodie.

Robert Macqueen, Lord Braxfield (1722-1799), eldest son of John Macqueen of Braxfield, Lanarkshire, sometime Sheriff-Substitute of the Upper Ward of that county, by his wife, Helen, daughter of John Hamilton of Gilkerscleugh, Lanarkshire, was born on 4th May, 1722. He was educated at the Grammar School of Lanark, and thereafter attended a law course at the University of Edinburgh, with the view of becoming a Writer to the Signet. He was apprenticed to Thomas Gouldie, W.S., Edinburgh, but finally decided to try his fortune at the bar, and, after the usual trials, was, on 14th February, 1744, admitted a member of the Faculty of Advocates. He was employed as one of the counsel for the Crown in the many intricate feudal questions respecting the forfeited estates which arose out of the Rising of 1745. He quickly gained the reputation of being the best feudal lawyer in Scotland, and is said to have received greater emoluments from his practice than any counsel before his time.

On the death of George Brown of Coalston, Macqueen was elevated to the bench on 13th December, 1776, and assumed the title of Lord Braxfield. He was also appointed a Lord Commissioner of Justiciary on 1st March, 1780, on the resignation of Alexander Boswell of Auchinleck. In the same year was published an anonymous “Letter to Robert Macqueen, Lord Braxfield, on his Promotion to be one of the Judges of the High Court of Justiciary” (Edinburgh, 12mo). This pamphlet, which points out the common failings of Scottish criminal judges is attributed by Lord Cockburn to James Boswell, the elder (“Circuit Journeys,” 1889 p. 322).

On 15th January, 1788, Braxfield was appointed Lord Justice-Clerk, in succession to Thomas Miller of Barskimming, promoted to the Presidency of the Court of Session. He held that important office during a very interesting and critical period; and presided at the trials of Muir, Palmer, Margarot, and others, who were indicted for sedition in 1793-4, in the course of which he let fall from the bench the obiter dictum—“I never likit the French a’ my days, but now I hate them.” “In these,” says Lord Cockburn, “he was the Jeffreys of Scotland. He, as the head of the Court, and the only very powerful man it contained, was the real director of its proceedings” (“Memorials of his Time,” 1856, p. 116).

The conduct of Braxfield during these memorable trials has been freely censured in recent times as having been marked by great and unnecessary severity; but, the truth is, he was extremely well fitted for the crisis in which he was called on to perform so conspicuous a part, for by the bold and fearless front he assumed, he contributed not a little to curb the lawless spirit that was abroad, and which threatened a repetition of that reign of terror and anarchy which so fearfully devastated a neighbouring country. As an instance of his great nerve, it is recorded that Braxfield, after the trials were over, which was generally about midnight, always walked home to his house in George Square alone and unprotected, though he constantly commented openly on the conduct of the Radicals, and more than once observed in public, “They would a’ be muckle the better o’ being hangit!”

After a laborious and very useful life, Braxfield died at his residence, No. 28 George Square, Edinburgh, on 30th May, 1799, in the seventy-eighth year of his age, and was buried at Lanark on 5th June following. Before taking up his residence in George Square, Braxfield lived for many years in Covenant Close. He was twice married. By his first wife, Mary Agnew, niece of Sir Andrew Agnew, he had two sons and two daughters; by his second wife; Elizabeth, daughter of Lord Chief Baron Ord, he had no children.

Braxfield was the last of our judges who rigidly adhered to the old “braid Scots.” “Hae ye ony counsel, man?” said he to Margarot, when placed at the bar, “Dae ye want tae hae ony appintit?” “No,” replied Margarot; “I only want an interpreter to make me understand what your Lordship says!” “Strong built and dark, with rough eyebrows, powerful eyes, threatening lips, and a low, growling voice, he was like a formidable blacksmith. His accent and his dialect were exaggerated Scotch; his language, like his thoughts, short, strong, and conclusive” (Cockburn, “Memorials of his Time,” 1856, p. 113). “Despising the growing improvement of manners, he shocked the feelings even of an age which, with more of the formality, had far less of the substance of decorum than our own. Thousands of his sayings have been preserved, and the staple of them is indecency, which he succeeded in making many people enjoy, or at least, endure, by hearty laughter, energy of manner, and rough humour” (ib. p. 114).

He domineered over the prisoners, the counsel, and his colleagues alike. Devoid of even a pretence to judicial decorum, he delighted while on the bench in the broadest jests and the most insulting taunts, “over which he would chuckle the more from observing that correct people were shocked. Yet this was not from cruelty, for which he was too strong and too jovial, but from cherished coarseness” (ib. pp. 115-116). Gerald, at his trial, ventured to say that Christianity was an innovation, and that all great men had been reformers, “even our Saviour Himself.” “Muckle He made o’ that,” chuckled Braxfield; “He was hangit” (ib. p. 117). On another occasion he remarked to an eloquent culprit at the bar, “Ye’re a vera clever chiel, man, but ye wad be nane the waur o’ a hangin’” (Lockhart’s “Life of Scott,” 1845, p. 425).

Of Braxfield’s grim humour in its unprofessional aspect but a few samples are now tolerable. Among these, however, is the following:—When a butler gave up his place because his mistress was always scolding him, “Lord!” exclaimed his master, “ye’ve little tae complain o’; be thankfu’ ye’re no marriet till her.”

“Out of the bar or off the bench,” says Stevenson, “he was a convivial man, a lover of wine, and one who shone peculiarly at tavern meetings.” When Lord Newton, then Charles Hay, was one morning pleading before him, after a night of hard drinking—the opposing counsel being in the like case—Braxfield observed, “Gentlemen, ye maun just pack up yer papers and gang hame; the tane o’ ye’s riftin’ punch and the ither’s belchin’ claret; there’ll be nae guid got oot o ye the day!” (“Kay’s Portraits,” 1877, vol. i., p. 169).

A portrait of Braxfield by Sir Henry Raeburn was exhibited at the Raeburn Exhibition at Edinburgh in 1876, a delightful description of which is given by R. L. Stevenson in his essay, “Some Portraits by Raeburn” (“Virginibus Puerisque,” 1881, pp. 219-236). Braxfield was, as every one knows, the prototype of Stevenson’s “Weir of Hermiston,” originally intended to be named “The Justice-Clerk,” and of which the author wrote to Mr. Charles Baxter, on 1st December, 1892, “Mind you, I expect ‘The Justice-Clerk’ to be my masterpiece. My Braxfield is already a thing of beauty and a joy for ever, and, so far as he has gone, far my best character” (“Letters to his Family and Friends,” 1899, vol. ii. p. 273)—a judgment which the literary world has unanimously sustained.

There is preserved in the Advocates’ Library a copy of the “Latin Thesis on a Title of the Pandects” (“De Cadaveribus Damnatorum”), written by Sir Walter Scott on his admission to the Faculty of Advocates, 11th July, 1792, with the following dedication:—

Viro nobili " Roberto Macqueen " de Braxfield, " inter quaesitores de rebus capitalibus " primario, " inter judices de rebus civilibus, " senatori dignissimo, " perito haud minus quam fideli juris interpreti; " adeoque, " in utroque munere fungendo, " scelera sive debita severitate puniendo, " sive suum cuique tribuendo et tuendo, "prudentia pariter atque justitia, " insigni; " hasce theses juridicas, "summa cum observantia, " sacras esse voluit " Gualterus Scott.

Sir David Dalrymple, Baronet, Lord Hailes (1726-1792), was the eldest son of Sir James Dalrymple, Bart., of Hailes, in the county of Haddington, Auditor of the Exchequer of Scotland, and Lady Christian Hamilton. He was born at Edinburgh on 28th October, 1726, and was descended on both sides from the nobility of the Scottish bar. His grandfather, Sir David Dalrymple, was the youngest son of the first Viscount Stair, Lord President of the Court of Session, and held the office of Lord Advocate for nineteen years. His mother was a daughter of Thomas, sixth Earl of Haddington, the lineal descendant of the first earl, who was Secretary for Scotland from 1612 to 1616, and President of the Court of Session from 1616 till his death in 1637. Dalrymple entered upon his studies at Eton, where he acquired a considerable knowledge of the classics and earned a high character for diligence and good conduct. He next re-visited his native city, and attended the University. From thence he went to Utrecht to study the civil law, returning to Edinburgh at the close of the Rising in 1746. He became a member of the Faculty of Advocates on 23rd February, 1748.

The death of his father two years later put Dalrymple in possession of a sufficient fortune to enable him to indulge his literary tastes; but he did not neglect his professional studies. As an oral pleader he was not successful. A defect in articulation prevented him from speaking fluently, and he was naturally an impartial critic rather than a zealous advocate. Notwithstanding this defect, he practised at the bar with much reputation for eighteen years. A great part of the business of litigation in Scotland at this time was conducted by written pleadings, and he became known as a learned and accurate lawyer.

On 6th March, 1766, Dalrymple was raised to the bench, on the death of George Carre of Nisbet, with the title of Lord Hailes, and on the resignation of George Brown of Coalston he was appointed a Lord of Justiciary on 3rd May, 1776. In the latter capacity he was distinguished for dignity, humanity, and impartiality—qualities at that times by no means characteristic of the criminal bench. The solemnity of his manner in administering oaths and pronouncing sentence specially struck his contemporaries. As a judge in the civil Court he was noted for his critical acumen and unswerving integrity. In knowledge of the history of law he was surpassed by none of his brethren, though among them were Elchies, Kaimes, and Monboddo.

At Edinburgh Lord Hailes lived some time in the Old Mint Close, foot of Todrick’s Wynd; he next had a house in Society, Brown’s Square; and latterly removed to New Street. His general residence was New Hailes, Musselburgh, where he died of apoplexy, the result of sedentary habits, on 29th November, 1792. Dr. “Jupiter” Carlyle, of Inveresk, who knew him well, summed up his character in a funeral sermon, in which he drew a glowing character of one of the most worthy of all the learned men of his time.

High as his memory stands as a judge, Hailes is better known to the world as a scholar and an author. His literary labours extend over a period of thirty-nine years—from the date of his first publication in 1751 till that of his last in 1790. “Lord Hailes was in some respects the very ideal of an historical inquirer. His mind was fair and dispassionate, and he reasoned with excellent logic. You will seldom find a mistake in fact or a conclusion not warranted by the premises in Lord Hailes’ ‘Annals.’ He had some defects, too, and the greatest of them is an unnecessary and repulsive dryness of narrative” (Cosmo Innes’ “Lectures on Scotch Legal Antiquities,” 1872, p. 8). His publications, almost without exception, related to the early antiquities of Christianity, or to the antiquities and history of Scotland, which before his time had been critically examined by scarcely any writer. His most important work is the “Annals of Scotland,” from Malcolm Canmore to Robert I., issued in 1776, and continued in 1779 to the accession of the House of Stuart. A complete catalogue of his numerous works will be found in “Kay’s Portraits” (1877, vol. i., pp. 367-370).

Sir David Rae, Baronet, Lord Eskgrove (1729-1804), son of the Reverend David Rae, of St. Andrews, an Episcopalian clergyman, by his wife, Agnes, daughter of Sir David Forbes of Newhall, was born in 1729. He was educated at the Grammar School of Haddington, and at the University of Edinburgh, where he attended the law lectures of Professor John Erskine (1695-1768). He was admitted a member of the Faculty of Advocates on 11th December, 1751, and quickly acquired a considerable practice. When the celebrated Douglas cause was before the Court he was appointed one of the Commissioners for collecting evidence, and in that capacity accompanied James Burnett (afterwards Lord Monboddo) and Francis Garden (afterwards Lord Gardenstone) to France in September, 1764, for the purpose of investigating the proceedings which had been carried on in Paris relative to the case.

After thirty years of honourable and successful practice at the bar Rae was, on the death of Alexander Boswell of Auchinleck, promoted to the bench on 14th November, 1782, and assumed the title of Lord Eskgrove, from the name of a small estate which he possessed near Inveresk. On 20th April, 1785, he was appointed a Lord of Justiciary, in succession to Robert Bruce of Kennet. He was one of the judges before whom Margarot, Skirving, and Gerald, the Reformers of 1793-4, were tried. He also assisted at the trials of the Rev. Thomas Fysche Palmer for sedition in 1793, and of Robert Watt and David Downie for high treason in 1794.

On the death of Lord Braxfield, Eskgrove was promoted to be Lord Justice-Clerk on 1st June, 1799, in which office he maintained the high character he had earned while at the bar. Henry Cockburn says of him, “Eskgrove was a very considerable lawyer; in mere knowledge probably Braxfield’s superior. But he had nothing of Braxfield’s grasp or reasoning, and in everything requiring force or soundness of head he was a mere child compared with that practical Hercules” (“Memorials of his Time,” 1856, p. 118). He was created a baronet on 27th June, 1804; died at Eskgrove on 23rd October following, in the eightieth year of his age; and was buried in Inveresk churchyard. He married, on 14th October, 1761, Margaret, daughter of John Stuart of Blairhall, Perthshire, by whom he had two sons. Eskgrove resided for many years in No. 8 St. John Street, Edinburgh.

“A more ludicrous personage,” says Cockburn, “could not exist. To be able to give an anecdote of Eskgrove, with a proper imitation of his voice and manner, was a sort of fortune in society. Scott in those days was famous for this particularly. Yet never once did he do or say anything which had the slightest claim to be remembered for any intrinsic merit. The value of all his words and actions consisted in their absurdity” (“Memorials,” pp. 118-119). In the trial of Glengarry for murder in a duel, a lady of great beauty was called as a witness. She came into Court veiled, but before administering the oath Eskgrove gave her this exposition of her duty—“Young woman! you will now consider yourself as in the presence of Almighty God and of this High Court. Lift up your veil, throw off all modesty, and look me in the face” (ib. p. 122). Cockburn also narrates that, having to condemn certain prisoners who had broken into the house of Luss and assaulted and robbed the inmates, Eskgrove first, as was his almost constant practice, explained the nature of the various crimes, assault, robbery, and hamesucken—of which last he gave them the etymology; he next reminded them that they had attacked the house and the persons within it, and robbed them, and then came to his climax—“All this you did, and God preserve us! joost when they were sitten doon tae their denner!” (ib. pp. 124-125). Cockburn tells many other anecdotes of him, too numerous for quotation here; but it would be difficult to omit the following:—On condemning a tailor to death for stabbing a soldier, the learned judge aggravated the offence thus—“And not only did you murder him, whereby he was bereaved of his life, but you did thrust, or push, or pierce, or project, or propel, the lethal weapon through the bellyband of his regimental breeches, which were His Majesty’s!” (ib. p. 122).

Lockhart states that, in Scott’s young days at the bar, he was counsel for the appellant in a case before Eskgrove concerning a cow which his client had sold as sound. In opening his case Scott stoutly maintained the healthiness of the animal, which, he said, had merely a cough. “Stop there,” quoth the judge; “I have had plenty healthy kye in my time, but I never heard o’ ane o’ them coughin’. A coughin’ cow! that will never do—sustain the Sheriff’s judgment, and decern!” (“Life of Scott,” 1839, vol. i., p. 299).

A felicitous parody of Eskgrove’s judicial manner is contained in the well-known “Advising” in the Diamond Beetle case (“Court of Session Garland,” 1839, pp. 75-77). Notwithstanding, however, his many eccentricities, he was a man of the highest integrity of character, and “cunning in old Scots law.”

John Campbell, Lord Stonefield (died 1801), son of Archibald Campbell of Stonefield, advocate, was admitted a member of the Faculty of Advocates on 9th January, 1748. He was subsequently appointed Sheriff of Argyll, an office which he long filled with the highest credit. On the death of Charles Erskine of Tinwald he was elevated to the bench, and took his seat, with the judicial title of Lord Stonefield, on 16th June, 1763. On the resignation of Francis Garden of Gardenstone, he was also nominated a Lord of Justiciary on 1st March, 1787. He resigned the latter appointment in the year 1792, but retained his seat on the bench till his death, which occurred at his residence in George Square, Edinburgh, on the 19th of June, 1801, after having been for thirty-nine years a judge of the Supreme Court.

It is somewhat remarkable that Stonefield and his two immediate predecessors occupied the same seat on the bench for a period of ninety years, Lord Royston having been appointed a judge in 1710, and Lord Tinwald in 1744.

Stonefield resided at one time in Elphinston’s Court, and latterly at No. 33 George Square, Edinburgh. Of his professional history no record has been preserved. As a scholar his attainments were considerable, and as a judge his decisions were marked by conciseness of expression and soundness of judgment. He was a zealous and liberal supporter of every scheme tending to promote the welfare and improvement of his native country.

By his wife, Lady Grace Stuart, daughter of James, second Earl of Bute, and sister of the Prime Minister, John (the third earl). Stonefield had seven sons, all of whom predeceased him. The second of these was Lieutenant-Colonel John Campbell, whose memorable defence of Mangalore, from May, 1783, to January, 1784, arrested the victorious career of Tippoo Sultan, and shed a lustre over the close of that calamitous war.

John Swinton, Lord Swinton (died 1799), son of John Swinton of Swinton, Berwickshire, advocate, by his wife Mary, daughter of Samuel Semple, minister of Liberton. He was admitted advocate on 20th December, 1743, and appointed Sheriff-depute of Perthshire in June, 1754. In April, 1766, he became solicitor for renewal of leases of the Bishops’ tithes, and solicitor and advocate to the Commissioners for Plantation of Kirks in Scotland, in place of James Montgomery, promoted to be Lord Advocate. He was elevated to the bench, with the title of Lord Swinton, on 21st December, 1782, on the death of Alexander Lockhart of Covington, and, on the promotion of Robert Macqueen of Braxfield in 1788, was also made a Lord of Justiciary. He retained both appointments till his death.

He died at his residence, Dean House, Edinburgh, on 5th January, 1799. Swinton married Margaret, daughter of John Mitchelson of Middleton, by whom he had six sons and seven daughters.

Swinton was the author of the following works:—(1) “Abridgment of the Public Statutes Relative to Scotland, &c., from the Union to the 27th of George II.,” 2 vols., 1755; “to the 29th of George III.,” 3 vols., 1788-90. (2) “Free Disquisition Concerning the Law of Entails in Scotland,” 1765. (3) “Proposal for Uniformity of Weights and Measures in Scotland,” 1779. (4) “Considerations Concerning a Proposal for Dividing the Court of Session into Classes or Chambers, and for Limiting Litigation in Small Causes, and for the Revival of Jury Trial in certain Civil Actions,” 1789.

Lord Cockburn, in his “Memorials of his Time” (1856, pp. 112-113), remarks—“These improvements have since taken place but they were mere visions in his time, and his anticipation or them, in which, so far as I ever heard, he had no associate, is very honourable to his thoughtfulness and judgment.” Cockburn also observes of Swinton—“He was a very excellent person; dull, mild, solid, and plodding; and in his person large and heavy. It is only a subsequent age that has discovered his having possessed a degree of sagacity for which he did not get credit while he lived. Notwithstanding the utter dissimilarity of the two men, there was a great friendship between him and Henry Erskine which it is to the honour of Swinton’s ponderous placidity that Erskine’s endless jokes upon him never disturbed.”

Sir Ilay Campbell, Baronet, Lord Succoth (1734-1823), was born on 23rd August, 1734. He was the eldest son of Archibald Campbell of Succoth, W.S., by his wife, Helen, only daughter of John Wallace of Ellerslie, Renfrewshire, and was admitted an advocate on 11th January, 1757. He soon obtained an extensive practice at the bar, and was one of the counsel for the appellant in the Douglas cause. During his last fifteen years at the bar his practice had become so great that there was scarcely any case of importance in which he was not engaged or consulted. In 1783 he was appointed Solicitor-General, in succession to Alexander Murray of Henderland, who was raised to the bench on 6th March of that year, but upon the accession of the Coalition Ministry he was dismissed, and Alexander Wight appointed in his place. Upon the fall of the Ministry he succeeded the Hon. Henry Erskine as Lord Advocate, and in the month of April, 1784, was elected to represent the Glasgow District of Burghs in Parliament, where he took an active share in all the important transactions of the time. The University of Glasgow conferred on him the degree of Doctor of Laws in 1784, and from 1790 to 1801 he held the office of Lord Rector.

After acting as Lord Advocate for nearly six years, on 14th November, 1789, Campbell was appointed President of the Court of Session on the death of Sir Thomas Miller, Bart., and assumed the judicial title of Lord Succoth. He was placed at the head of the Commission of Oyer and Terminer, issued in the year 1794, for the trial of those accused of high treason in Scotland at that disturbed period, and was highly commended by English lawyers for the manner in which he acquitted himself in that capacity.

Campbell held the office of Lord President for nineteen years, and upon his resignation was succeeded by Robert Blair of Avonton. He presided for the last time on 11th July, 1808, being the final occasion on which the old Court of Session, consisting of fifteen judges, sat together. After the vacation, the Court sat for the first time in two Divisions. On 17th September, in the same year, he was created a baronet. He died on 28th March, 1823, in the eighty-ninth year of his age.

Campbell was an able lawyer, but without any great forensic gifts. His written pleadings were models of perspicuity, force, and eloquence, but his speeches though admirable in matter, were unattractive in delivery. Cockburn says of him, “His voice was low and dull, his face sedate and hard. Even when heaving internally with strong passion, externally he was like a knot of wood” (“Memorials of his Time,” 1856, p. 127). He was inferior to none of his brethren in depth of learning, and in private life was highly esteemed.

After his retirement from the bench, Campbell presided over two different Commissions appointed to inquire into the state of the Courts of law in Scotland, which he conducted with his accustomed industry and talent. He lived for many years in James’s Court, Edinburgh; but during the later years or his life he chiefly resided at his paternal estate of Garscube, Dumbartonshire, where he kept his active mind continually engaged in various literary and agricultural pursuits.

Campbell was married to Susan Mary, daughter of Archibald Murray of Cringletie, one of the Commissaries of Edinburgh, by whom he had six daughters and two sons, one of whom only survived, viz., Sir Archibald Campbell of Succoth, Bart., who was appointed one of the Senators of the College of Justice on 17th May, 1809. He retired in 1825.

Robert Dundas of Arniston, Lord Chief Baron of the Court of Exchequer (1758-1819), the eldest son of Robert Dundas of Arniston the younger (1713-1787), Lord President of the Court of Session, was born on 6th June, 1758. He was a nephew of the celebrated Henry Dundas, Viscount Melville and Baron Dunira, whose daughter he afterwards married. He was educated for the legal profession, and became a member of the Faculty of Advocates on 3rd July, 1779, immediately after which he was appointed Procurator for the Church of Scotland. On the promotion of Sir Ilay Campbell to the office of Lord Advocate in April, 1784, Dundas, then a very young man, succeeded him as Solicitor-General; and on the elevation of the former to the bench as Lord President in November, 1789, the latter was appointed to supply his place as Lord Advocate, being then only in the thirty-first year of his age.

This office Dundas held for twelve years, during which time he sat in Parliament as a member for the county of Edinburgh (1790-6). He introduced into Parliament in 1793 a bill for defining and regulating the powers of the Commission of Teinds; but, from the little countenance extended towards it by the Ministry, and the strong opposition of the landed proprietors, he was under the necessity of withdrawing the measure.

Dundas conducted for the Crown, as Lord Advocate, the great prosecutions for sedition at Edinburgh in 1793-4; and on the occasion of the riots in connection with the Scottish Burghs Reform the windows of his house were broken by a hostile mob (“Kay’s Portraits,” 1877, vol. i., pp. 374-5). He acted as Dean of the Faculty of Advocates from 1796 to 1801; and, in 1799, was appointed Joint-Keeper of the General Register of Sasines for Scotland.

On 1st June, 1801, Dundas was appointed Chief Baron of the Exchequer in Scotland, on the resignation of Chief Baron Montgomery. He held this office till within a short time of his death, which happened at Arniston on 17th June, 1819, in the sixty-second year of his age. His town residence was in St. John Street, Canongate.

The excellences which marked the character of Dundas were many, and all of the most amiable and endearing kind. In manner he was mild and affable, in disposition humane and generous, and in principle singularly tolerant and liberal—qualities which gained him universal esteem. As presiding judge of the Court of Exchequer, he on every occasion evinced a desire to soften the rigour of the law when a legitimate opportunity presented itself for so doing. If it appeared to him that an offender had erred unknowingly or from inadvertence, he invariably interposed his good offices to mitigate the sentence. “It was in his private life, however,” says his biographer, “and within the circle of his own family and friends, that the virtues of this excellent man were chiefly conspicuous, and that his loss was most severely felt. Of him it may be said he died leaving no good man his enemy, and attended with that sincere regret which only those can hope for who have occupied the like important stations and acquitted themselves as well.”

Dundas was one of the few individuals who were spoken favourably of by the Rev. William Auriol Hay Drummond in his “Town Eclogue” (Edinburgh, 1804)—

Lord Cockburn, who knew him well, gives an interesting account of Dundas in his “Memorials of his Time” (1856, pp. 156-159).

William Tait, advocate (died 1800), was the second son of Alexander Tait, one of the principal Clerks of Session, who is referred to in “The Court of Session Garland” (1839, p. 50). He was admitted to Lincoln’s Inn on 4th June, 1777, and became a member of the Faculty of Advocates on 19th February, 1780. He acted as Sheriff-depute of Stirling and Clackmannan from 1790 to 1797, and was member of Parliament for the Stirling District of Burghs from 3rd May, 1797, to 24th February, 1800. He died at Exeter on 7th January, 1800.

James Wolfe Murray, Lord Cringletie (1759-1836), was the second son of Lieutenant-Colonel Alexander Murray of Cringletie, who had the honour to command the Grenadiers at the sieges of Louisburg and Quebec, and who died at Martinique in 1762. He was born on 5th January, 1719, and was named after General Wolfe, whose godson he was. He became a member of the Faculty of Advocates on 7th December, 1782, and was subsequently appointed Judge-Admiral. He was elevated to the bench on the death of Lord Meadowbank, and took his seat on 16th November, 1816, with the judicial title of Lord Cringletie, which he assumed from the family estate in Peeblesshire. He was also appointed one of the Commissioners of the Jury Court on 12th November, 1825. He resigned his judicial offices in 1834, and died on 29th May, 1836, in the seventy-eighth year of his age.

Murray married, on 7th April, 1807, Isabella Katherine, only daughter of James Charles Edward Stuart Strange, H.E.I.C.S., a godson of Prince Charles Edward Stuart, by whom he had four sons and nine daughters. He resided at one time in No. 17 Charlotte Square, Edinburgh.

References are made to Cringletie by Sir Walter Scott in his “Journal” (1891, pp. 322, 546); and an entertaining jeu d’esprit entitled “Notes by Lord Cringletie of the Trial, Douglas against Russell,” will be found in “Appendix to the Court of Session Garland” (1839, pp. 7-14).

Henry Erskine (1746-1817), second son of Henry David tenth Earl of Buchan, by his wife, Agnes, daughter of Sir James Steuart of Goodtrees, Bart., and brother of the celebrated Thomas Erskine, Lord Chancellor, was born in South Gray’s Close, Edinburgh, on 1st November, 1746. After receiving some preliminary instruction at St. Andrews, he matriculated as a student of the United College of St. Salvator and St. Leonard on 20th February, 1760. In 1763 he proceeded to Glasgow University, and subsequently went to Edinburgh University, where, in 1766, he attended the classes of Professors Wallace, Hugh Blair, and Adam Ferguson. He was admitted a member of the Faculty of Advocates on 20th February, 1768. He had previously prepared himself for extempore speaking by attending the Forum Debating Society established in Edinburgh, in which he gave promise of that eminence as a pleader which he afterwards attained. His brilliant talents soon placed him at the head of his profession; and his legal services were as much at the command of the poor as of the wealthy. It was said of him that “no poor man wanted a friend while Harry Erskine lived.”

In August, 1783, Erskine was appointed Lord Advocate in the Coalition Ministry, in succession to Henry Dundas (afterwards Lord Melville). He held office only for a very short period in consequence of a sudden change of Ministry in December, 1783. Anticipating this, Dundas offered, on the day of his appointment, to lend him his own silk gown, suggesting it was hardly worthwhile buying a new one; Erskine replied that no doubt Dundas’s gown was made to fit any party, but that, however short his term of office might be, he declined to put on the abandoned habits of his predecessor. He was succeeded by Ilay Campbell (afterwards Lord President of the Court of Session).

On 24th December, 1785, Dundas having resigned the post of Dean of the Faculty of Advocates, Erskine was elected in his place by a decided majority, in spite of the influence of the Government, which was exerted against him. Lord Cockburn remarks, “His political opinions were those of the Whigs; but a conspicuous and inflexible adherence to their creed was combined with so much gentleness that it scarcely impaired his popularity. Even the old judges, in spite of their abhorrence of his party, smiled upon him; and the eyes of such juries as we then had, in the management of which he was agreeably despotic, brightened as he entered” (“Life of Lord Jeffrey,” 1852, vol. i., p. 93).

Erskine had been annually re-elected Dean of Faculty since 1785; but in consequence of his having presided at a public meeting, held in Edinburgh on 28th November, 1795, to petition against the war, his political adversaries determined to oppose his re-election; and at the meeting of the Faculty on 12th January, 1796, Robert Dundas of Arniston, then Lord Advocate, was chosen Dean. Lord Cockburn, commenting on this incident, observes—“This dismissal was perfectly natural at a time when all intemperance was natural. But it was the Faculty of Advocates alone that suffered. Erskine had long honoured his brethren by his character and reputation, and certainly he lost nothing by being removed from the official chair. It is to the honour of the society, however, that out of 161 who voted, there were 38 who stood true to justice, even in the midst of such a scene” (“Life of Jeffrey,” vol. i., p. 94).

On the death of Lord Eskgrove in October, 1804, Erskine was offered the office of Lord Clerk Register, but declined it, refusing to separate his fortunes from those of his party. On the return of the Whigs to power in 1806 he once more became Lord Advocate, and was at the same time returned member for the Dumfries District of Burghs. The downfall of the Ministry in March, 1807, however, again deprived him of office, and the dissolution in the following month put an end to his Parliamentary career.

In 1811 Lord Justice-Clerk Hope was, on the death of Lord President Blair in May of that year, appointed his successor. Erskine, who was fifteen years Hope’s senior at the bar, being disappointed of the preferment to which his professional standing and abilities entitled him, after a brilliant career extending over a period of forty-four years, retired from public life to his residence of Almond-dell in West Lothian, where he died on 8th October, 1817, in the seventy-first year of his age.

Erskine resided at one time in George Square, Edinburgh, next door to No. 25, where Scott’s father lived. He removed in 1789 to No. 27 Princes Street.

Lord Cockburn calls Erskine “the brightest luminary at our bar,” and adds, “His name can no sooner be mentioned than it suggests ideas of wit, with which, in many memories, the recollection of him is chiefly associated. A tall and slender figure, a face sparkling with vivacity, a clear, sweet voice, and a general suffusion of elegance, gave him a striking and pleasing appearance” (“Life of Jeffrey,” vol. i., p. 91).

Erskine was twice married; his first wife, Christian, was the only daughter of George Fullerton of Broughton Hall, by whom he had several children, one of whom, Henry David, succeeded to the Earldom of Buchan on the death of his uncle, David Steuart Erskine, eleventh earl, in 1829. By his second wife he had no children.

Alexander Wight, advocate (died 1793), was the son of David Wight, writer, Edinburgh. He was admitted a member of the Faculty of Advocates on 2nd March, 1754, and was subsequently appointed Solicitor-General to the Prince of Wales. He was vice-president of the Antiquarian Society, and was also a director of the Musical Society. He is said to have been long distinguished as an eminent counsel. He died at Edinburgh on 18th March, 1793.

Wight was well known as a legal writer, and was the author of “A Treatise on the Laws Concerning the Election of the Different Representatives sent from Scotland to the Parliament of Great Britain, with a Preliminary View of the Constitution of the Parliaments of England and Scotland before the Union of the two Kingdoms,” dedicated to Lord Mansfield (Edinburgh, 1773, 8vo); and also of “An Inquiry into the Rise and Progress of Parliament chiefly in Scotland, and a Complete System of the Law Concerning the Election of the Representatives from Scotland to the Parliament of Great Britain” (Edinburgh, 1784, fol.).

Cosmo Innes says of him—“If we did not know his unhappy end we should call Alexander Wight, the author of the ‘Law of Elections’ and ‘History of Parliament,’ the most sensible, dispassionate, and clear-headed of historical lawyers. He had great difficulties to contend with in writing too early for correct versions of our Acts of Parliament; and the curious charters appended to his volume lose much of their value by the extreme inaccuracy of the only readings which he could procure” (“Lectures on Scotch Legal Antiquities,” 1872, p. 11).

Wight is mentioned in “The Court of Session Garland” (1839, p. 47). It is recorded by Chambers in his “Traditions of Edinburgh” (1825, vol. ii., p. 159) that Wight was one of the earliest settlers in the New Town, where he built one of the houses on the south side of St. Andrew Square. He chose the situation of his new residence with a view to having the ancient part of the city still within sight, and especially St. Giles’ steeple and clock, which had for many centuries directed the motions of his legal predecessors. In order to prevent the intermediate line of Princes Street from interrupting his beloved prospect, he purchased the feu of the ground which immediately intervened, and erected that house now occupied by the Sun Insurance Office (No. 40 Princes Street) upon it with a flat and low roof.

Charles Hay, Lord Newton (1747-1811), son of James Hay of Cocklaw, Writer to the Signet, was born in 1747. After the usual preparatory course of education, he passed as an advocate on 24th December, 1768, having just attained his majority; but, unlike most young practitioners, Hay had so thoroughly studied the principles of law that he was frequently heard to declare he was as good a lawyer at that time as he ever was at any later period. He soon became distinguished by his strong, natural abilities, as well as by his extensive knowledge of his profession, which embraced alike the minutest forms of the daily practice of the Court and the highest and most subtle points of jurisprudence. He was promoted by the Fox Administration to the bench on the death of David Smythe of Methven, and took his seat, with the judicial title of Lord Newton, on 7th March, 1806. This appointment was the only one which took place in the Court of Session during what was termed the reign of “The Talents”—a circumstance on which it is said he always professed to set a high value. Newton died unmarried at Powrie, in the county of Forfar, on the 19th of October, 1811.

Hay was, during the whole course of his life, a staunch Whig of the old school. Whilst at the bar his opinions were probably never surpassed for their acuteness, discrimination, and solidity; and as a judge he showed that all this was the result of such a rapid and easy application of the principles of law as appeared more like the effect of tuition than of study and laborious exertion.

Newton possessed an extraordinary fund of good humour, amounting almost to playfulness, and entirely devoid of vanity or affectation. There was a strong dash of eccentricity in his character, but his peculiarities appeared in the company of so many estimable qualities that they only tended to make him more interesting to his friends. He possessed great bodily strength and activity till the latter years of his life, when he became excessively corpulent.

Cockburn calls him “a man famous for law, paunch, whist, claret, and worth,” and adds, “In private life he was known as ‘The Mighty.’ He was a bulky man with short legs, twinkling eyes, and a large purple visage; no speaker, but an excellent legal writer and adviser. Honest, warm-hearted, and considerate, he was always true to his principles and his friends. But these and other good qualities were all apt to be lost sight of in people’s admiration of his drinking. His daily and flowing cup raised him far above the evil days of sobriety on which he had fallen, and made him worthy of having quaffed with the Scandinavian heroes” (“Memorials of his Time,” 1856, p. 223).

Many quaint anecdotes are told of him. On the bench he frequently indulged in a certain degree of lethargy, and on one occasion a young counsel, who was pleading before the Division, confident of a favourable judgment, stopped his argument, remarking to the other judges on the bench, “My Lords, it is unnecessary that I should go on, as Lord Newton is fast asleep.” “Ay, ay,” cried Newton, “you will have proof of that by and by,” when, to the astonishment of the young advocate, after a most luminous review of the case, he gave a very decided and elaborate judgment against him. The following story, says Chambers, was once told of Lord Newton by Dr. Gregory to King George the Third, who laughed at it very heartily. A country client coming to town to see him, when at the bar, upon some business, found on inquiry that the best time for the purpose was at four o’clock, just before Hay sat down to dinner. He accordingly called at the counsel’s house at that hour, but was informed that Mr. Hay was then at dinner, and could not be disturbed. He returned the following day earlier in the afternoon, when to his surprise the servant repeated his former statement. “At dinner!” cried the enraged applicant; “did you not tell me that four was his dinner-hour, and now it wants a quarter of it!” “Yes, sir,” said the servant, “but it is not his this day’s, but his yesterday’s dinner that Mr. Hay is engaged with. So you are rather too early than too late” (“Traditions of Edinburgh,” 1825, vol. ii., pp. 276-277).

It is said that Newton often spent the night in all manner of convivial indulgences—drove home about seven o’clock in the morning—slept two hours—and mounting the bench at the usual time, showed himself perfectly well qualified to perform his duty. His Lordship was also so exceedingly fond of card-playing that it was humorously remarked, “Cards were his profession, and the law only his amusement.”

Newton resided for many years at No. 22 York Place, Edinburgh. His portrait by Raeburn—“just awakened from clandestine slumber on the bench,” as Stevenson describes it—is one of the most popular of that master’s works.

John Clerk, Lord Eldin (1757-1832), the eldest son of John Clerk of Eldin, the author of the well-known “Essay on Naval Tactics,” and his wife, Susannah Adam, the sister of the celebrated architects of that name, was born in April, 1757. He was educated with the view of entering the Indian Civil Service, but, his attention having been turned to the legal profession, he was eventually apprenticed to a Writer to the Signet. After serving his indentures, he practised for a year or two as an accountant. Then, having qualified himself for the bar, he was admitted a member of the Faculty of Advocates on 3rd December, 1785.

Clerk speedily rose to distinction in his profession and acquired so extensive a practice that, it is said, at one period of his career he had nearly one-half of the business of the Court upon his hands. On 11th March, 1806, on the resignation of Robert Blair of Avonton, he was appointed Solicitor-General for Scotland, an appointment which he held during the twelve months that the Whig party was in office.

“Had his judgment been equal to his talent,” writes Lord Cockburn, “few powerful men could have stood before him. For he had a strong, working, independent, ready head, which had been improved by various learning, extending beyond his profession into the fields of general literature, and into the arts of painting and sculpture. Honest, warm-hearted, generous, and simple, he was a steady friend, and of the most touching affection in all the domestic relations. The whole family was deeply marked by an hereditary caustic humour, and none of its members more than he” (“Life of Jeffrey,” vol. i., p. 200).

His practice at the bar had been for some time falling off, and his health had already begun to fail, when, on 10th November, 1823, Clerk was appointed an Ordinary Lord of Session in the place of Lord Bannatyne. Assuming the title of Lord Eldin, he took his seat on the bench on 22nd November. As a judge he was not a success; his temperament was not a judicial one, and his faculties at the date of his elevation were seriously impaired. In consequence of the infirmities of age, after five years of judicial work, he resigned in 1828, and was succeeded by Lord Fullerton. He died unmarried at his house, No. 16 Picardy Place, Edinburgh, on 30th May, 1832, in the seventy-sixth year of his age.

As a pleader Clerk was distinguished by strong sense, acuteness, and the most profound reasoning. Throughout his entire career at the bar he delighted in defying, ridiculing, and insulting the bench; and it is recorded that his whole session was one keen and truceless conflict with judicial authority. He was in the habit of saying whatever he liked to certain of the Outer House judges without reproof. Lord Craigie especially, it is said, suffered a species of torture from him that required great natural sweetness and kindness of disposition to endure. Clerk, however, did not come off so well with the Inner House judges. On one celebrated occasion, having used somewhat threatening language towards Lord Glenlee in the Second Division, he was reluctantly compelled by the Court to make an apology to the offended judge. An account of this remarkable scene will be found in the “Journal of Henry Cockburn” (1874, vol. ii., pp. 207-210).

In politics Clerk was a zealous Whig. He had a considerable taste for fine arts, occasionally amused himself in drawing, painting, and modelling, and had such an attachment to cats that his house could always boast of half-a-dozen feline indwellers. It is recorded that at the sale of his collection of paintings and prints, which took place at his house in Picardy Place after his decease, the floor of the drawing-room gave way, and about eighty persons—one of whom was killed—“were precipitated into the room below, to the destruction also of much valuable china and numerous articles of vertu there displayed.”

In appearance Clerk was singularly plain; he was also very lame, one of his legs being shorter than the other; and his inattention to dress was proverbial. It is related that when walking down the High Street one day from the Court he overheard a young lady saying to her companion rather loudly, “There goes Johnnie Clerk, the lame lawyer,” upon which he turned round and said, “Na, madam, I may be a lame man, but no’ a lame lawyer.”

Clerk was of a convivial disposition, and the contrast between the crabbed lawyer and the good-natured bon vivant was strongly marked. He was a member of the Bannatyne Club, of which Sir Walter Scott was president. On one occasion, after the anniversary dinner, he is said to have fallen down-stairs and injured his nose, which necessitated his wearing a patch upon the organ for some time afterwards. On a learned friend inquiring how the accident happened, Clerk replied that it was the effect of his studies. “Studies!” ejaculated the inquirer. “Yes,” growled Clerk; “ye’ve heard, nae doot, about Coke upon Littleton, but I suppose ye never heard tell o’ Clerk upon Stair!”

An interesting account of Clerk’s striking personality is given by Lord Cockburn in his “Life of Lord Jeffrey” (1852, vol. i., pp. 199-205).

Robert Hamilton, advocate (1750-1831), son of Alexander Hamilton of Gilkerscleugh, Lanarkshire, distantly connected with the ducal house of Hamilton, was born about 1750. He entered the army, and was present at the Bunker’s Hill and other battles of the American War of Independence, where he fought gallantly, and was severely wounded. He afterwards studied law, and became a member of the Faculty of Advocates in 1788. He was appointed Sheriff-depute of Lanarkshire in 1797, and on his resignation of that office, in 1822, he was appointed, on 5th February of the same year, Principal Clerk in the First Division of the Court of Session. He married a daughter of David Dalrymple of Westhall, one of the Senators of the College of Justice. He died on 13th December, 1831.

Hamilton was an intimate friend of his colleague, Sir Walter Scott, who mentions him frequently in his “Journal” as being incapacitated by gout from attending to his professional duties. They were both Commissioners of the Northern Lights, and went together the voyage of inspection in 1814, described by Lockhart (“Life of Scott,” 1839, vol. iv., pp. 182 et seq.). Hamilton is noted therein as good humoured, even when troubled with the gout; “a very Uncle Toby in military enthusiasm, and a brother antiquary of the genuine Monkbarns breed.” On his deathbed he gave Scott the sword he had carried at Bunker’s Hill.

Hamilton was well known as a legal writer and genealogist. He had the credit of being a good lawyer, and, it is said, “obtained much professional reputation for getting up the case for Hamilton of Wishaw, which carried the peerage of Belhaven before a Committee of Privileges. He also drew up the elaborate claim of Miss Lennox of Woodhead to the ancient earldom of Lennox, an interesting production, but based on a fallacy.”