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represents as reluctant, is affirmed to have subsisted five years without the very least indication of its being felt burdensome; and the letter from his chief, the Lord Advocate, which dismissed him, is not given, though it is certainly not asserted that he voluntarily resigned; and some may imagine that when he held the office impatiently, he might as well have taken the opportunity, which voting against his colleagues gave him, to tender his resignation of the place he so much disliked. It has been further remarked that the absurd story of Mr. Cranstoun (afterwards Lord Corehouse) being required to take a test tendered in writing, and preferring to delay his call, and serve in a yeomanry corps, is only one of the manifest misrepresentations respecting the unfair treatment of Whigs by the Court. The undoubted fact of at least as many Whig advocates as Tory rising into the highest practice, is a clear proof that such unfair treatment was impossible. Erskine, Clerk, Gillies, rose to high practice in the most Tory times, and during all the intolerances which grew out of the alarms occasioned by the French Revolution. At a subsequent period Moncrieff, the most uncompromising of Whigs, rose to higher practice than any one ever held at the Scotch Bar; while Cranstoun, Jeffry, Fullarton, and many others, were among the most successful members of the Profession.
There are remarkable confirmations of our former remarks upon the tendency to mislead him, and make him either believe too largely or colour improperly, of his love of story-telling. The mere desire of filling up a sketch with proper names is ever leading him astray; and we are informed that, in one instance at least, he is thus induced to name a party friend whom he means to praise, and whose judicial character made his interference with politics, or with any factious proceeding, impossible. He gives the relief of the Whigs from their anxiety at Mr. Canning's death, as occasioned, not only by Lord Lansdowne being Home Secretary, but by the knowledge that he was sure to be guided by Mr. Abercromby and Mr. Kennedy. Now we know that Mr. Abercromby was then Chief Baron in Scotland ; and we are very positively assured, that when he went to Scotland, he distinctly stated that he would never on any account interfere in any manner of way with the disposal of political patronage--a resolution which he continued steadily to act upon.
This, as well as many other parts of the book, proceeds from no wish whatever to misrepresent or exaggerate, but only from the love of anecdote, and the desire to give his stories point. Such being the object in view, he becomes very careless in sifting the truth of the things he has heard and desires to relate; and this habit pursues him throughout. By a curious infelicity, he seems incapable of being accurate, whether he is telling his own story, or correcting the misrepresentations of other dealers in the same line. Sir W. Scott's most reprehensible proceeding with respect to Lord Braxfield had been exposed by Lord President Hope both in our pages and in those of the Quarterly Review; and it was demonstrated that the circumstance alleged could not by possibility have occurred. But Lord Cockburn cannot let the opportunity pass of having the scandalous anecdote kept alive; so he thinks he does enough for this purpose by changing the person from Lord Braxfield to Lord Kaimes, and the place from Dumfries to Ayr; and he cites Lord Hermand as his authority (p. 117). Now we find the real history of the matter in the Caldwell Papers, edited by that most able and excellent person Colonel Mure, representative of the family, and well known to the classical world as one of the most accomplished Grecians of the day (part ï. vol. ii. p. 129). The case had gone favourably to the prisoner until one witness was called, whose evidence gave a most decided and fatal turn to the whole; and Lord Kaimes said to Lord Braxfield, his brother judge, who sat on the bench with him, “I think that must be check-mate to the prisoner;” a remark which might have been made privately by any judge without any great breach of decorum. We have understood, from persons acquainted with the particulars, that the trial was not for forgery, but for murder of an aggravated kind-the poisoning of persons by putting noxious matter into the pot; that though strong suspicion existed, there seemed nothing to make a conviction possible, until a little girl was called, who swore to having seen the prisoner put something into the pot, with other
circumstances tending to a confirmation of the charge. Nothing can be more illustrative of the risks which truth runs from anecdote-mongers than the whole of this case. We before stated that he had taken for a fact, and recorded as such, a clumsy and not very decent jest which circulated in Edinburgh, to caricature the political violence and the coarseness of a chief justice. It has now been stated by those who remembered the story being current as a joke, that the words never were said to have been used in court, but in company and at table. Now, it is undeniable that they were exceedingly reprehensible even if so uttered; but it is as undeniable that they were, if thus used, a much less outrage upon decorum than if used on the Bench. All who remember Lord Thurlow, and indeed Lord Eldon, will tell you that their conversation was plenteously interspersed with oaths. Correct persons would of course reprehend this bad practice. But he would be a most incorrect narrator, and would greatly aggravate the offence committed, who should have related that either of those eminent judges had been heard to swear profanely on the Bench, even if he added that it was in an undertone of voice, as Lord Cockburn says of Lord Braxfield.
If it is asked why we have devoted so much of our attention to a work of no great merit certainly in any respect, and, except as a collection of gossip connected with the legal profession, deserving little consideration, our answer is ready. When a judge either writes, or having written leaves to be published, narratives of fact and opinions upon individual character, and when the fact and the character relate to the law and the lawyers of his times, it becomes an imperative duty to examine the claims of the author to the belief of his readers, and if he is found to have no such claims, the duty is imperative to destroy his credit. This book has no such claims, and it is our duty to prevent it from obtaining belief. The things recorded by Lord Cockburn, and which have not been disproved, may be true or they may not. They may be true, although Lord Cockburn has stated them; the censures pronounced by him may be well founded, although they are his; thus would speak his adversaries in local or in general politics. Or those narra
tives may be true, and those opinions just, as we should say without any such invidious qualification. But if so, the facts are credible as given by him, the censures just as pronounced by him, not because they appear in his book, but because they are supported by other evidence, and rest upon other reasons. The book gives them absolutely no title whatever to our belief and assent. The history of the law, of the courts, of the lawyers, must not in any manner of way be affected by such a publication, and we only performed our bounden duty in saving the purity of its stream from this unworthy influx. The portions which are proved to be particularly bad almost all bear, and unjustly bear, upon the character and conduct of persons in high judicial station. The rest may or may not be bad, but it is shown to be of no value.1
? A letter lies before us from an able and highly respectable member of the Scotch Bar, indignantly referring to some of Lord Cockburn's statements, and treating as they deserve “the numerous blunders and inaccuracies of his narrative.” One instance is remarkable. Whoever has observed Lord Cockburn give Professor Playfair as the author of the character of President Blair inserted in the newspapers immediately upon his decease, must have wondered how any one could bring his mind to believe so strange a story. But the more strange the better Lord Cockburn liked it. The learned mathematician and geologist had, as may well be supposed, nothing whatever to do with it. The real and the only author was the learned lawyer, the writer of the letter referred to, who also mentions the accident that gave occasion to his writing it. He mentions having remonstrated with Lord Cockburn on the caricatures in his Life of Lord Jeffry,“ a work” (says he)“which has now sunk to its level.” The Quarterly Review has referred in its last number with approbation to our former article on this subject, and has added the observation of what had escaped us on Lord Cockburn's singular credulity. Of that observation we have availed ourselves in the present supplementary notice, as we also do of the following just and important remark: “Books like Lord Cockburn’s” (says the Reviewer, p. 298) “ are the bane of history; for the circumstances which are not contradicted are sure to be believed, although the credit of the entire narrative has been destroyed.”
ART. X.-STRICTURES ON THE APPELLATE JURIS.
DICTION OF THE HOUSE OF LORDS. By G. BRODIE, Esq., Advocate, Historiographer Royal for
Scotland. Edinburgh, 1856.
THIS is the tract to which we adverted in our last number,
when treating of the late extraordinary proceedings in Parliament upon the important subject of Mr. Brodie's work. It must be admitted that few men were better qualified to discuss it; because, beside his well-known talents as an historical and controversial writer, his eminence is unquestionable as a lawyer, the author of important works on Scotch law, and as a legal antiquary. Our only regret is, that he did not more fully enter into the whole subject, both in its historical and technical relations; but he appears to have considered the practical question of the proposed reinforcement of the Appellate Jurisdiction by the addition of Scotch lawyers, as chiefly deserving to be discussed, and as so clear on the merits, that it could be easily disposed of—even upon the assumption of the representations which are made by some persons in the profession being correct, though their accuracy he entirely denies. Thus, supposing the Lords to have, as some contend, and against the facts contend, altered the law of Scotland touching Entails, Mr. Brodie proves most triumphantly, from an examination of the particular facts, that the proposed remedy would never have prevented the decision, which is complained of in the appeals, and would, in some instances, have insured it being made.
Very valuable information is contained in this work upon the history of the Appellate Jurisdiction, especially since the Union. But the most important service which this able and learned person renders to the discussion, is the proof which lie either gives or refers to of the misrepresentations made in the House of Lords and its Committee upon the history of Scotch law, and of the House of Lords, in so far as their lordships are supposed to have introduced alterations into it, particularly in the