Ragged Lion

by Allan Massie

  ‘Whaur are you gaein’, my bonnie boy,

  Now give me answer true.’

  ‘I’m blithe to see the warld, mother,

  And that is answer true.’

  ‘The warld, I fear, is false, laddie,

  A place of dule and shame.’

  ‘I ken the warld is false, mother,

  A place of dule and shame.

  ‘But man maun mak his way, mother,

  Through briar and through thorn.’

  ‘Aye, man maun mak his way, laddie,

  Though he rue that he was born.’

  Woodstock . . . Chapter XX: ‘The affectionate relatives were united as those who, suffering under great adversity, still feel the happiness of sharing it in common.’

  8

  A Life in the Law, 1787–

  My father’s love and reverence for the Law derived from his consciousness of our own lawless Border background. He was no great historian, but he knew that we had risen from an almost savage society, in which custom dictated manners, while no strong realization of legality controlled conduct. Accordingly, he saw the Law as the bridge by which social man has crossed from barbarity to civilization. Only the Law could order relations between men to their common advantage.

  He was a modest, economical man, whose mind was so constructed that – beyond the weighty and elevated matter of theology in the study of which he occupied what would otherwise have been his hours of leisure – he valued little beyond the family save the just application of the Law, and he regarded successes gained in other fields as necessarily inferior to those which might be sought in his profession.

  His social tact was exemplary. Though he was a devout Whig and Presbyterian – but no prig – one of the few whom I have known profess Whiggish principles without making himself into a prig – he had clients, men who trusted him, who belonged to the other party, and some of them had been adherents of the Prince and ‘out’ – as the saying went – in the Forty-five. With such my father was careful never to offend. They were, in his view, ‘unfortunate gentlemen’. He respected their convictions which he did not share, and did not speak of the Prince as the ‘Pretender’ or of the Rising as the ‘Rebellion’. When giving the loyal toast, if such were present, he contented himself with drinking to ‘the King’, leaving it to the company to determine whether they had raised their glasses to George or Charles.

  His reverence for the Law was such that he gave his services even to those of whom he might profoundly disapprove. I mind one gentleman who came to the house, rather than to my father’s place of business, arriving by night with his cloak pulled around the lower part of his face. When he left, he sent a boy down into the street to see that the road was clear before he dared take his departure. No sooner had he gone, than my father took the glass from which his client had been drinking, and hurled it into the fireplace.

  ‘No member of my family or household,’ he said, ‘shall drink from a cup that has touched the lips of Mr Murray of Broughton’; for his mysterious client had been none other than that wretched gentleman who had been the Prince’s secretary and then betrayed his fellow-Jacobites to save his own neck and estates. But, though he deplored his conduct, I believe my father served him as well and conscientiously as his more worthy clients.

  My early years in the Law were passed in drudgery – the drudgery of copying endless legal documents – in my father’s office. There had never been any question but that I was set for a legal career. My elder brothers had received commissions in the Army and Navy respectively. My own lameness, as I have said, precluded any such career for me; and I would have been a vilely ungrateful young fellow if I had denied my father his dearest wish that I should enter his profession. Even the drudgery of copying had its rewards; I was paid at threepence a folio sheet which enabled me to buy books and attend theatres. Moreover, the habit of solid industry stood me in good stead in later years. On one occasion I recall that I wrote some ten thousand words without intermission. Besides I loved my father, and I felt the natural pride and pleasure of rendering myself useful to him.

  It was his ambition, however, that I should enter into the more lofty and dignified branch of the profession. He was proud to be a Writer to the Signet; but he was determined that I should become a member of the Faculty of Advocates. ‘To live to see you plead a case, with a rich mastery of the law, is my fondest desire, Wattie,’ he would say; and it was a desire which I was in no way loth to satisfy. Accordingly, at the age of seventeen I began my Law classes at the college.

  Let me do justice to the only years in my life in which I applied myself to learning with stern, and undeviating industry. I set myself to learn the Law thoroughly, and I have never regretted it. My closest friend in these years was William Clerk, son of Sir John Clerk of Eldin, and we devised a course of study together, in which we subjected each other to daily interrogations – a method which I do not hesitate to recommend to any student, no matter what his subject. We examined each other daily in all points of Law, and in the summer I would walk from our home in George Square, down over the Mound and up the West End of Princes Street, to collect him from his father’s house, that we might pursue our mutual examination on the way to College.

  It was a proud day, for both of us, and for my father too, when on the 11th July 1792, we passed our final trials, and were admitted to the Faculty and could assume the advocate’s gown. Then we mingled with the throng in Parliament House, till after an hour I said to Clerk, in the accent of a Highland lass at a hiring-fair, ‘weel, hinny, we hae stood by the Tron for mair nor an hour, and deil a ane has speired our price.’

  After the hard work of study, my early years as an advocate were a time of abundant leisure. This is a common experience. The young advocate walks, or stalks, the floor of Parliament House, hoping to have a solicitor or attorney pluck him by the sleeve and offer him a brief, and is usually doomed to disappointment. Some work came my way, courtesy of my father and some of his friends, but for the most part I passed the day in idle conversation, and amused myself with observing the idiosyncrasies of the Senators of the College of Justice, many of whom, with my natural facility for impersonation, I could mimic in such a manner as to divert my equally briefless friends.

  There was old Lord Eskgrove, for instance, who seemed to mutter into a long jutting chin – a jaw as deformed as that of any Hapsburg, and who never sentenced a wretch to death without concluding: ‘Whatever your relig-ious persua-shon may be, there is an abundance of rever-end gentle-men who will be most happy to guide you on the way to yeternal life’. It is a misfortune, or a deficiency, of our legal system that many men attain the Bench, when their faculties, if not yet positively decaying, are, at the very least, inferior to their earlier condition. The French order things differently, for with them the judiciary is a separate branch of the Law into which young men can enter. Yet I do not know that this answers better. An advocate acquires a deeper experience as a result of the social intercourse he enjoys, and thus comes to possess a more profound knowledge of life and human nature, than may perhaps be attained by one who settles into a magistracy early in life. The truth is that all systems devised by mankind are defective in certain respects; perfection is not to be found this side of the grave.

  Then we are to consider that a judge may excel in some areas of the Law, and fail in others. The late Lord Braxfield affords a good example. No one had a more profound or subtle understanding of the complexities of feudal law; and to hear Braxfield disentangle a complicated matter of inheritance or land-law was an education in itself, affording evidence of the greatest refinement of intellect which could be imagined. Yet this same Braxfield was also a brute, lacking the ordinary decencies of humanity. ‘Aye, ye’re a verra clever chiel,’ I recall him saying to one prisoner in the dock, ‘but you’d be nane the waur o’ a hanging.’ I was unfortunate enough to attend the first Trials for Sedition which he conducted with a disregard for the humane virtues which caused him to be dubbed ‘the Scotch Jeffreys
’, the reference being to that lawyer of equal brilliance and equal inhumanity, who disgraced the Law of England by his conduct of the Bloody Assizes after Monmouth’s rebellion.

  Now I knew that most of those brought up before Braxfield were light-minded fellows, and that their intoxication with the horrid theories of the Revolutionaries in France threatened the stability of the social order; I never doubted that Henry Dundas (Lord Melville), the effectual Regent of Scotland, was wise to bring them to trial. But there was a relish in the manner in which Braxfield conducted himself in Court which disgusted me. ‘Jesus Christ was a reformer too,’ cried one poor wretch from the dock. ‘Muckle he made o’ that,’ sneered His Lordship, ‘he was hangit.’

  But I run ahead of myself. My early years at the bar were in general unremunerative. I often found myself, in Sheriff Courts, defending poor men who were unable to pay a fee. I did so partly because they required a defender, and partly because I deemed that the practice of advocacy, even if immediately unrewarded, would serve me in good stead in the future. Not all my penniless clients failed to reward me. A housebreaker at Jedburgh, whom my best efforts had failed to save from conviction, thanked me, and apologizing for his inability to pay me, said he would substitute in recompense two pieces of advice, which might do me a good turn in the future.

  ‘Nivver trouble yoursel to keep a muckle great mastiff o’ a watchdog,’ he said, ‘for the like o thon are nae trouble to us. But instead keep a wee yelpin’ snappin’ terrier indoors, and we’re like to gie ye a wide berth. An’ nivver trouble yoursel’ wi thae newfangled locks, for we can aye pick or brak them, but trust to ane o’ thae auld heavy yins wi’ an auld rusty key, and your hame’ll stand secure.’

  Aye, as I remember telling Lord Meadowbank:

  Yelpin’ terrier, rusty key,

  Was Walter Scott’s best Jeddart fee.

  Early in my career I defended a scoundrel accused of poaching, with somewhat more success. Leaving the Court, I told him in an undertone that in my opinion he was fortunate to have been acquitted.

  ‘Aye, aye,’ said he, ‘I’m o’ the same opeenion mysel’, and to show my gratitude, sir, if you juist gie me your direction, I’ll see you hae a fush frae the Duke’s pool for your denner.’

  Among the more amusing of my early cases was one which took me for the first time to Galloway (and thus gave me the scenery twenty years later for Guy Mannering). The minister of the parish of Girthon was accused of loose behaviour, specifically that he had been ‘toying with a sweetie-wife at a penny wedding’ whereat he had also sung certain dubious, or more than dubious, songs. The case subsequently went before the General Assembly of the Kirk, where I argued manfully that there was a distinction to be drawn between a man who was ebrius and one who was ebriosus, which is to say, between a man who happened to be drunk and another who was habitually so; and my client, I claimed, with considerable pertinacity, though with no inner assurance, fell into the former category. His clerical brethren did not agree. I lost the case, but my argument greatly amused my friends and did something to raise my standing in Parliament House. For months afterwards at our convivial suppers, we debated the distinction between ebrius and ebriosus, concluding for the most part that we belonged to the former class, but that, if we were to prolong our sessions into the next day, we might be accused of having descended, or risen (as some asserted) to the second.

  I arrived at the Bar towards the end of the period of heroic drinking among the judges. Braxfield rarely sat on the bench without a bottle of claret to hand. There was a story that still ran the rounds of a celebrated judge of the previous generation, whose servant refused to admit a client to his lodging on the grounds that his Lordship was at his dinner. The client, or his attorney, demurred, declaring that he knew his Lordship never dined till four and it was now but half-three.

  ‘Aye,’ said the servant, ‘ye speak troth; but ye hinna understood me. It’s yesterday’s denner that he’s aye sitting at.’

  In the country, of course, old habits died still harder. I recall a supper given by a hard-drinking, indeed sodden, Selkirk attorney (certainly ebriosus, rather than ebrius), to myself, and two brothers of the Bar, George Cranstoun and Will Erskine. Since in my youth I had a head like a rock, I alone of the three of us matched our host, glass for glass, bottle for bottle. So, when the time came for us to take our leave, he let the other two mount their horses, with all the difficulty common on such occasions, and ride off without a word. But he embraced me with the enthusiasm of one who has found a friend after his own heart, and announced, ‘I’ll tell you this, Maister Walter, thon lad Cranstoun’s a clever chiel, and he may weel reach the tap o’ our profession; but tak my word for’t – it’ll no be by drinking.’ Well, Cranstoun, clever but odd, like all his family, did in time ascend to the Bench; and indeed it was not by drinking.

  I confess that I was never a great advocate. There was something in the business which displeased me. When I was young, and embarking on my career as a poet, my friend Charles Kerr of Abbotrule urged me not to neglect the Law. ‘With your strong sense,’ he wrote, ‘and your ripening general knowledge, that you must rise to the top of the tree in the Parliament House in due season I hold as certain as that Murray died Lord Mansfield. But don’t let many an Ovid, or rather many a Burns (which is better) be lost in you. I rather think men of business have produced as good poetry in their by-hours as the professed regulars; and I don’t see why a Lord President Scott should not be a famous poet (in the vacation time), when we have seen a President Montesquieu step so nobly beyond the trammels in the Esprit des Lois.’

  This was kind of him and generous; and I agreed with his judgement of the poets; but it was not to be. After my father’s death, my appetite for success at the Bar slackened, for my greatest pleasure in achievement there would have been his pleasure. My profession and I came to stand nearly upon the footing which honest Slender consoled himself on having established with Mistress Anne Page: ‘There was no great love between us at the beginning, and it pleased heaven to decrease it upon further acquaintance.’ Nevertheless the Law was my career and I would have been a neglectful husband and father had I cut myself loose and followed the profession (if it may be so-called) of letters exclusively.

  I was happy therefore, in 1799, on the death of Andrew Plummer of Middlestead, Sheriff-deputy of Selkirkshire, to succeed him in that post – on the recommendation, I am proud to say, of Lord Melville and the Duke of Buccleuch – which appointment reduced my reliance on my earnings at the Bar. Indeed with what I got there, my wife’s independent income, my share of my father’s estate, and my stipend as Sheriff-deputy, I had near £1,000 a year; and I believe my friend Jeffrey, an advocate of far greater pertinacity and finer acumen than myself, was not making a quarter of that after ten years at the Bar. Then in 1806 I was also appointed Clerk to the Court of Session, a well-salaried post that relieved me of both financial anxieties and the drudgery of the Bar. It afforded me also some entertainment, and the occasion to observe the contrarities and perplexities of mankind as they are revealed in the highest Court in Scotland.

  As to my position as Sheriff I carried out my duties, I trust, with both diligence and humanity. I delighted in the opportunity it gave me – indeed the obligation it imposed upon me – to live for at least half the year in my beloved Borders; and in short it seemed to me that at the age of thirty-five I was one of the most happily circumstanced of men. I had obtained – as I thought – financial security. I divided my time agreeably between Edinburgh and the Borders; I had a happy home, a loving wife, and a growing family in whom I delighted.

  As a sheriff I exerted myself very frequently to try to persuade litigants to abandon their case, and settle the matter amicably out of Court. Truth to tell, the greater number of cases that came before the Sheriff Court of Selkirkshire should have got no further than argy-bargy ower the garden wall.

  Indeed, though a man of law myself, I have ever thought there was something sickening in seeing poor de
vils drawn into great expenses upon trifles by interested attorneys. Yet too cheap or easy an access to litigation has its own evils, for the proneness or propensity of the lower class to gratify spite or the desire for revenge in this manner would be a sad and injurious business – were they able to thole the expense. I have aye done my utmost to check the desire to go to law, or for one man, as the saying goes, ‘to have the law on’ another. But I trust that whenever a case presented itself, I have dealt with it on its merits, and since in my time I found against both James Hogg and the Duke of Buccleuch (through his gamekeeper), I think I can fairly acquit myself of any charge of partiality.

  My duties as Clerk to the Court of Session retaining me in Edinburgh during the Law Terms, most of the Sheriff Court cases were of necessity heard in the first instance by my Substitute, who for the first quarter-century of my tenure of office was my friend Mr Charles Erskine, writer in Melrose; when he died, to my great regret, in January 1825, I appointed in his place my kinsman William Scott, younger of Raeburn. I had also another Substitute in reserve on whose services I could call if ever Erskine was unavailable or indisposed; this was the worthy Mr William Borrowman, surgeon in Selkirk.

  I have therefore been well served. It has been my custom to require my Substitutes to deliver to me a clear statement of the case, which I would then consider, and respond to in a written judgement. Nevertheless, my presence was frequently required: to hear debates in the actions, to take evidence, to examine ground in dispute, or to conduct criminal trials. Fortunately, there have been few of the last sort, though in such I have ever tried to temper a proper and necessary severity with a degree of mercy. There were naturally those in the country who would have been better out of it. I recall once, when I was driving up Yarrow, a man running up to the carriage and exclaiming that Will Watherston was murdering Davie Brunton in the Broadmeadows woods. I presumed the man was exaggerating, but in any case, after a moment’s reflection, said: ‘If Will Watherston murder Davie Brunton and be hanged for the deed, it is the most fortunate thing that can happen to the parish’; and told my coachman to drive on.