Reminiscences of Scottish Life & Character Part 18

_Captain_ Fullerton. A party of gentlemen had dined with Mrs. Fullerton, and they had a turkey for dinner. Mrs. F. proposed that one of the legs should be _deviled_, and the gentlemen have it served up as a relish for their wine. Accordingly one of the company skilled in the mystery prepared it with pepper, cayenne, mustard, ketchup, etc. He gave it to Lizzy, and told her to take it down to the kitchen, supposing, as a matter of course, she would know that it was to be broiled, and brought back in due time. But in a little while, when it was rung for, Lizzy very innocently replied that she had eaten it up. As it was sent back to the kitchen, her only idea was that it must be for herself. But on surprise being expressed that she had eaten what was so highly peppered and seasoned, she very quaintly answered, "Ou, I liket it a'

the better."

A well-known servant of the old school was John, the servant of Pitfour, Mr. Ferguson, M.P., himself a most eccentric character, long father of the House of Commons, and a great friend of Pitt. John used to entertain the tenants, on Pitfour's brief visits to his estate, with numerous anecdotes of his master and Mr. Pitt; but he always prefaced them with something in the style of Cardinal Wolsey's _Ego et rex meus_--with "Me, and Pitt, and Pitfour," went somewhere, or performed some exploit. The famous d.u.c.h.ess of Gordon once wrote a note to John (the name of this eccentric valet), and said, "John, put Pitfour into the carriage on Tuesday, and bring him up to Gordon Castle to dinner."

After sufficiently scratching his head, and considering what he should do, he showed the letter to Pitfour, who smiled, and said drily, "Well, John, I suppose we must go."

An old domestic of this cla.s.s gave a capital reason to his _young_ master for his being allowed to do as he liked:--"Ye needna find faut wi' me, Maister Jeems; _I hae been langer aboot the place than yersel_."

It may seem ungracious to close this chapter with a communication which appears to convey an unfavourable impression of an old servant. But the truth is, real and attached domestic service does not offer its pleasures and advantages without some alloy of annoyance, and yet how much the solid benefits prevail over any occasional drawbacks!

The late Rev. Mr. Leslie of St. Andrew-Lhanbryd, a parish in Morayshire, in describing an old servant who had been with him thirty years, said, "The first ten years she was an excellent servant; the second ten she was a good mistress; but the third ten she was a perfect tyrant."

CHAPTER THE FIFTH.

SCOTTISH JUDGES.

There is no cla.s.s 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 a.s.sured 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 t.i.ther." 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 ill.u.s.trate. It would require a volume for itself. One anecdote, however, I cannot resist, and I record it as forming a striking example of the cla.s.s of Scottish humour which, with our dialect, has lost its distinctive characteristics. John Clerk (afterwards a judge by the t.i.tle 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 p.r.o.nunciation 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. .h.i.t 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 a.s.sumed 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 t.i.tle 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 a.s.sume, 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 amus.e.m.e.nt 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 pa.s.sing traveller. As Professor Stuart of Aberdeen was pa.s.sing 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 quant.i.ties, 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 amus.e.m.e.nt. 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 cla.s.sical 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 quant.i.ties--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 gla.s.s 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 Gra.s.smarket, 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 cla.s.s were remarkable. He spoke the broadest Scotch. He was a sound and laborious lawyer. He was fond of a gla.s.s 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 c.o.o.nsel, 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 s.e.xes.

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 n.o.ble 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_ antic.i.p.ated 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 c.r.a.p 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!'

e.j.a.c.u.l.a.t.ed 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 t.i.tle 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 pet.i.tion of Alexander Cunningham against Lord Bannatyne's interlocutor. It is a case of defamation and damages for calling the pet.i.tioner's _Diamond Beetle_ an _Egyptian Louse_. You have the Lord Ordinary's distinct interlocutor, on pages 29 and 30 of this pet.i.tion:--'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; a.s.soilzies 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_ a.s.signed 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 ent.i.tled 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 pet.i.tioner'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 pet.i.tioner 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 Const.i.tution, 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 pet.i.tion, my Lords.

"LORD BALMUTO.--'Am[48] for refusing the pet.i.tion. 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 pet.i.tion, 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 pet.i.tioner 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 pet.i.tioner has; but my opinion's the same as it was before. I say, my Lords, 'am for refusing the pet.i.tion, I say--