THE LORD ADVOCATES OF SCOTLAND v THE LORD ADVOCATES OF SCOTLAND Second Series 1834 — 1880 OMOND A Author of "The Lord Advocates of Scotland from the close of the Fifteenth Century to the passing of the Reform Bill" HUSTON OOLLKtifc LltftiAU OH HIST* UT HILL, MAS*, LONDON : ANDREW MELROSE, LTD 3 YORK STREET, COVENT GARDEN, W.C 1914 / 44178 PREFACE fJlHE term " Advocate " is of ancient use in Scotland ; and in the reign of Alexander the Third the right of advocates to plead at the bar was secured by statute. There is no trace of a King's Advocate at that time. But as private persons employed advocates to represent them, it was natural that the King should do the same, and the transition from occasional employment by the Crown to the position of a recognised officer of the law was easy. The lawyer who was so employed soon became known as the " Kingis Aduocat ". The idea of having such an officer may have been borrowed from abroad. The long series of alliances between France and Scotland imported many French ideas into the Scottish Courts ; and the King's Advocate may have been intended to take the place of the Procureur du Roi. Whatever may have been the origin of the office, whether it was of French derivation or of native growth, the first authentic traces of its history are found towards the close of the fifteenth century. During the sixteenth century the office gradually rose in importance. The King's Advo- cate became Public Prosecutor, and a great Officer of State. The title " Lord " was common to all members of the Scottish Government. The Treasurer was the " Lord v vi PREFACE Treasurer," and the Secretary of State was the ' ' Lord Secretary." The King's Advocate became known as the Lord Advocate, and has borne that title since about the year 1600. In the reign of Charles the First the right of appointing the Lord Advocate was taken from the King and given to the Parliament. Under the Commonwealth the King's Advocate became " Advocate to the Lord Protector." At the Restoration the right of appointment was, by an Act of the Estates, restored to the Crown. The Revolution, the Union, and the abolition of the Scottish Privy Council, each affected the functions and powers of the Lord Advo- cate. In the eighteenth century the office of Secretary of State for Scotland was abolished, and the management of Scottish affairs passed into the hands of the Ministers in London, who acted under the advice of the Lord Advocate, by whom, as time went on, more and more influence in political affairs was acquired. In the year 1775 the entire patronage of Scotland was handed over to Henry Dundas, then Lord Advocate, who ruled Scotland, in various offices, till 1811. After that Lord Advocates, Scottish Lords of the Treasury, and various confidential advisers of Government, shared the management of Scotland ; but the Lord Advo- cate was always the most prominent and powerful of these officials. His influence was such that it was stated, just before the Reform Act of 1832, that " the Lord Advocate of Scotland has an authority almost unlimited, and greater than that of any functionary in the British Empire." In 1883 two volumes were published with the title : — ''The Lord Advocates of Scotland from the close of the PREFACE vii Fifteenth Century to the Passing of the Reform Bill." The aim of that work was not to give a series of complete " Lives," but to trace the history of an office the holders of which enjoyed peculiar opportunities of influencing the develop- ment of the law in Scotland ; to describe the various arrange- ments which, since the Union, have been made for the conduct of Scottish affairs ; to record the part the Lord Advocates took in politics and legislation ; and to combine with all this some account of their personal history. The same plan has been followed in the present volume, which continues the story of the political and legal adven- tures of the Lord Advocates from the year 1834, when Francis Jeffrey, who had been in office since 1830, went on the bench and was succeeded by John Archibald Murray, down to the Parliament of 1880. This was a crowded period of Scottish history. Indus- trial unrest and ruinous strikes ; the disruption of the National Church ; improvement of the Land Laws, and particularly of the Law of Entail ; a Poor Law Act which swept away most of the ancient Scottish system ; the removal of tests from schools and Universities ; important commercial legislation ; the establishment of National Education ; the abolition of patronage in the Church, and the introduction of many reforms into various branches of the law ; fill up these fifty years, during which the burden of Scottish business in Parliament, growing heavier as time went on, lay almost entirely on the shoulders of the Lord Advocates. Throughout all this period it was felt that some change in the system of Scottish administration was viii PREFACE desirable ; and at last this was brought about, and the responsibility of the Lord Advocates was diminished when, a few years after the general election of 1880, a statute was passed providing for the appointment of a Secretary of State for Scotland (48 & 49 Vict. c. 61). The appointment of a special Secretary placed the ad- ministration of Scottish affairs on a new and sounder footing ; and it closed a long controversy, the history of which, commencing soon after the Reform Act of 1832, is traced in this volume. That history shows, as a Scottish Member once said, when the question was under debate in the House of Commons, that if people had known how much the Lord Advocates were expected to do, they would have wondered that they did so much. " I must say," was the verdict of Mr. Disraeli on the same occasion, " that my experience leads me to the conviction, that of all public offices none have been sustained during the last twenty years with such continuous ability as the office of Lord Advocate of Scotland." G. W. T. O. CONTENTS PITAPTTiYR T JOHN ARCHIBALD MURRAY PAOLi Parentage and early life, .... 1 Friendship with Francis Horner, . 1 The Speculative Society, .... 2 21 st Dec. 1799. Goes to the Bar, . ..... 3 Joins the Whig Party, . . . . . 3 The Ediriburqh Review, ..... 3 Jan. 1817. The Scotsman Newspaper founded, . 5 Death of Francis Horner, .... 5 The Political Associations, . . . . 3 1820. The Radical War, 7 The Pantheon Meeting, . 8 Political changes in Scotland, 9 The Brougham Banquet, . . . . 9 The Crisis of 1827, 10 Friendship with Sir Walter Scott, . 11 Dec. 1826. Marriage, ....... 12 Nov. 1830. Formation of Lord Grey's Government, 12 Speech by Murray on Scottish representation, 14 The Reform Bill is passed, . . . . 15 The General Election, . . . . . 15 " The Clerk of the Pipe," . . . . 17 Dec. 1832 Murray elected for the Leith district, 17 First Speech in the House of Commons, 18 May 1834. Retirement of Jeffrey. Murray appointed Lord Advocate, ...... 19 Critical situation of Lord Grey's Government, . 19 Church patronage in Scotland, . 20 The Veto Act, . 24 Elections for Edinburgh and the Leith district, . . 25 July 1834. Resignation of Lord Grey, . . 27 The Grey Festival, . .. 27 14tfi tfoi;. 1834. End of the first Melbourne administration, . 28 General Election, ...... 29 ix b CONTENTS PAGE Fall of Sir Robert Peel. The Second Melbourne administration, . . . . . .29 By-election in the Leith district, . . . .29 The " Sabbath Breaker," ..... 30 Lord Advocate Murray re-elected,. . . .31 State of Scottish business in Parliament, . . .31 Difficulty of the Lord Advocate's position, . . 31 Accession of Queen Victoria. General Election of 1837, 32 The Whigs losing ground, ..... 33 Disaffection among the Upper Classes, ... 33 Industrial unrest,. . . . . . .33 The Combination Laws, ..... 33 Excesses of the Trades Unionists,. ... 34 Chalmers on the Combination Laws, ... 35 Trade disputes in the West of Scotland, ... 36 The Cotton Spinners' Association, .... 37 Interference with liberty by the Labour leaders . . 37 The Strike of 1837, 37 Picketing, 37 Murder of a free labourer, . . . . .38 Arrest of the Trade Union leaders, and end of the Strike, 38 Ruinous effect of the Strike on the working-classes, . 38 Jan, 1838. Labour leaders indicted by the Lord Advocate and convicted of Conspiracy, .... 39 Sentence of Seven Years' Transportation, . 40 Lord Cockburn explains the Law, . . . .41 The Lord Advocate attacked by Lord Brougham, . 42 Defends his conduct in the House of Commons, . . 43 Brings in a Bill to raise the salaries of Scottish judges, . 44 Goes on the Bench as Lord Murray, . . .45 Miss Martineau on his political career, ... 45 An evening at the Lord Advocate's Chambers at Westminster, . . . . . .46 Last years in Edinburgh, ..... 46 7th Mar. 1859. His Death, ........ 46 CHAPTER II ANDREW RUTHERFURD Parentage. Dr. William Greenfield, ... 47 Robert Burns and Dr. Hugh Blair, . . .48 Marriage of Dr. Greenfield and Miss Bervie, , . 49 CONTENTS xi PAQB 21st June 1791. Birth of Andrew Rutherfurd, .... 49 Career at School and College, .... 49 June 1812. Goes to the Bar,. 50 Rapid success and Marriage, .... 50 Speaks at a Whig Meeting in 1831, .... 51 His practice at the Bar, . . . . .51 1837. Appointed Solicitor-General,. .... 52 " Loftiness of Manner," ..... 52 Working of the Veto Act, . . . . .52 The Auchterarder case, ...... 53 Dean of Faculty Hope's Speech for the Patron, . . 54 Rutherfurd's reply, ...... 55 A majority of the judges find the Veto Act illegal, . 57 Opinions of Lord President Hope and Lord Jeffrey, . 57 The House of Lords confirm the judgment of the Court of Session, ....... 59 1839. Rutherfurd appointed Lord Advocate, ... 59 Elected for the Leith district, .... 59 First Speeches in the House of Commons, . . .61 Irritation in Scotland against the judgment of the House of Lords, . . . . . .62 " Spiritual Independence," . . . . .63 The Church asks for an Act of Parliament, . . 65 Lord Advocate and Mr. Fox Maule, ... 66 The Lord Advocate instructed to prepare a Church Bill, ' . .66 Conflict of Jurisdictions in Scotland, ... 68 Pamphlet literature of the Church controversy, . . 68 Jan. 1840. The Tf^ness newspaper founded, . . . .68 Interview of the Church leaders with Lord Mel- bourne and Lord John Russell, ... 69 By-election in Perthshire, . . . . .70 The Lord Advocate consults the Scottish Members, . 71 Prepares a Bill. The Government refuse to act, . 73 Chalmers turns to the Opposition, .... 73 Opinions of Conservative leaders, .... 73 Lord Aberdeen brings in a Bill, .... 74 Disappointment of Chalmers, .... 74 " An unfortunate misunderstanding," ... 75 Rutherfurd speaks in the Stockdale case,. . . 76 Answers Sir Robert Peel on the Church question, . 76 Bill to amend the Law of Evidence, . . .77 Speaks on the Church question at Leith, and insists on legal and constitutional action, . . 78 Dangerous excitement in Scotland, 79 xii CONTENTS PAGB The Duke of Argyll brings in a Church Bill . . 79 June 1841. Defeat of the Whig Government, .... 79 General Election, . . . . . .79 Opinion in Scotland on the Corn Laws, . . 80 Rutherfurd returned for the Leith district, . . 81 Other elections in Scotland,. . . . .81 30th Aug. 1841. F a n G f the Whig Government, .... 82 Sir Robert Peel Prime Minister, .... 82 Retirement of Lord President Hope, ... 83 Lord Justice Clerk Boyle succeeds him, . . .83 Dean of Faculty Hope appointed Lord Justice Clerk, . 83 " Facetious Peter " elected Dean of Faculty, . . 84 Rutherfurd in the House of Commons, . . 84 Hostility of Lord Aberdeen and Sir James Graham to Chalmers, ....... 85 Campbell of Monzie re-introduces the Duke of Argyll's Bill, 85 Rutherfurd speaks against delay, . . . .85 May 1842. The « Claim of Rights " drawn up, . . . .86 Mistaken views of Sir Robert Peel, ... 87 The Government refuse to act, . . . .88 Sir Robert Peel predicts a secession, .... 88 Jan. 1843. The Stewarton case, 89 The Church sends up petitions to Parliament, . . 90 Rutherfurd's motion for a Committee of Inquiry, . 90 7 th Mar. 1843. Debate in the House of Commons, . . .91 Scottish members outvoted. Inquiry refused, . . 92 18th May 1843. The disruption of the Church, .... 93 Rutherfurd thanked by the " Free Church," . . 93 The Free Churchmen claim to be the Church of Scot- land, 93 Their success, ....... 94 Violent language of Free Church leaders, ... 95 Movement to exclude them from University Chairs, . 95 The University Test in Scotland, .... 96 Rutherfurd supports a Bill to abolish it, which is lost, 96 Is elected Rector of Glasgow University, . . 97 His inaugural address, ...... 97 Agitation in Scotland against the Maynooth Grant, . 98 Rutherfurd speaks and votes for the Grant, . . 98 Brings in a Bill to abolish the Test, ... 99 Second reading moved by Macaulay, . . .100 Scottish members outvoted, and the Bill lost, . 100 Rutherfurd purchases Lauriston Castle, . . . 101 CONTENTS xiii PAGE Lends it to Lady John Russell, . . . .101 Nov. 1845. Lord John's Edinburgh Letter, . . . .101 Meetings in Scotland to discuss the Corn Laws, . .102 Speeches of Macaulay and Rutherfurd at Edinburgh, . 102 26th June 1846. The Lords pass the Corn Law Abolition Bill. Defeat of the Government in the House of Commons, and fall of Peel, ' .103 Rutherfurd re-appointed Lord Advocate, . . . 104 By-elections in Scotland, . . . . .104 The opposition to Macaulay in Edinburgh, . .104 Jan. 1847. Meeting of Parliament,. . . . . .105 Land Law Reform, . . . . . .105 The Law of Entail, 106 Caution of Rutherfurd in dealing with the Land Laws, 109 Carries five Land Bills in 1847, . . . .109 July 1847. Dissolution of Parliament, 109 Lord Advocate returned for Leith, . . .109 Defeat of Macaulay at Edinburgh, . . . .110 Nov. 1847. Meeting of Parliament. State of Parties, . . .111 July 1848. The Rutherfurd Entail Act is carried, . . .114 Difficulty of legislating for Scotland, . . .115 Reason why so little time given to Scottish business, . 116 Rutherfurd 's dislike to hasty legislation, . . .118 Is complimented by Mr. Joseph Hume, . . .118 Position as Lord Advocate, . . . . .119 Popularity in London, and love of literature, . . 119 Friendship with Panizzi, . . . . .119 His knowledge of Italian, . . . . .120 The library and paintings at Lauriston, . . .120 Is taken ill, and resigns his seat, . . . .121 May 1851. Appointed a judge, . . . . . .121 Private life. Dean Boyle's account of him, . . 122 The " Friday Club," 123 Friendship with Professor Wilson,. . . .123 Deaths of Jeffrey, Moncreiff, Wilson, Cockburn, and Mrs. Rutherfurd, . . . . . .124 13th Dec. 1854. A serious illness. His Death, . . . .124 CHAPTER III DUNCAN McNEILL COLONSAY AND OrONSAY, Aug. 179S. Birth of Duncan McNeill, Poverty of the Highlands and Islands, . Want of Churches and Schools, . 126 . 126 . 126 . 127 xiv CONTENTS PAGB McNeill's University career, . . . . .127 June 1816. Goes to the Bar, 128 Early practice. Appointed Advocate Depute. Sheriff of Perthshire, 128 1834-1841. Solicitor-General, 129 1842. Appointed Lord Advocate, ..... 129 Has no seat in Parliament, but prepares Lord Aber- deen's Benefices Act, ..... 129 Lord Lyndhurst's opinion of it, .... 130 Lord Campbell attacks the Lord Advocate, . . 131 Sept. 1843. Member for Argyllshire, . . . . .132 Conveyancing Acts, . . . . . .133 The Scottish Poor Laws, 133 Chalmers on the Poor Laws, . . .135 Dr. Alison's Pamphlet,. . . . . .136 Appointment of a Poor Law Commission, . . . 140 May 1844. The Report issued, . . . . . .140 Lord Advocate McNeill's Bill, .... 141 Aug. 1845. The Poor Law Act passed, . . . . .143 Increase of Pauperism in Scotland, . . .144 June 1846. End of Mr. McNeill's official career, .... 144 Becomes a judge, f 145 1852. Appointed Lord President, ..... 145 State of business in the Court of Session, . . .145 The Appellate Jurisdiction of the House of Lords, . 146 1867. McNeill appointed a Lord of Appeal, . . . 146 31s* Jan. 1874. His Death, 146 CHAPTER IV JAMES MONCREIFF " A Whig after the spirit and fashion of 1688," . . 147 Sir James Well wood Moncreiff, . . . .148 29th Nov. 1811. Birth and school-days of James Moncreiff , . . 148 At Edinburgh University, . . . . .148 The Classical Society, 149 The "Don of the Spec," 150 University Magazines, . . . . .151 Early writings, ....... 152 3rd Mar. 1833/ 1 Goes to the Bar,. 152 A Case on Circuit, . . . . . .152 Sept. 1835. Marriage, . . . . . . . .153 Joins the Free Church, ..... 154 The Sedition Trials of 1848, . . . . 155 CONTENTS xv PAOl Article on Macaulay's History in the Edinburgh Review, ....... 156 April 1851. Lord Advocate and Member for Leith, . . .156 State of Parties in the House of Commons, . 1 58 Speech on the Ecclesiastical Titles Bill, . . . 160 20th Feb. 1852. J Defeat and res ign a tion of the Russell administration, . 161 Adam Anderson appointed Lord Advocate, . . 161 A staunch Tory, . . . . . . .161 His career at the Bar, . . . . .161 May, 1852. Goes on the Bench, 162 John Inglis appointed Lord Advocate, . . .162 28th Sept. 1853. Death of Lord Anderson, 162 The Derby Administration . . . . .163 July 1852, Dissolution of Parliament, . . . . .163 Moncreiff returned for the Leith district, . . . 164 The Edinburgh election, . . . . .164 Duncan McLaren, . . . . . .164 The Annuity Tax, 165 Opposition to Macaulay, who is returned for Edin- burgh, . . . . . . . .167 Nov. 1852. Meeting of Parliament,. ..... 168 Defeat and resignation of Lord Derby, . . .168 The Coalition Government, . . . . .169 Moncreiff again Lord Advocate, . . . .170 His legislation during the next sixteen years, . . 170 1853. Carries an Act abolishing the University Test, . . 172 The Schools of Scotland, 173 " Scotland a Half-educated Nation," . . . 175 Free Church teachers retire or are dismissed at the disruption, . . . . . . .176 The Free Church Schools, 176 The " National Education Association," . . . 177 Opposition of the Church of Scotland to a National system, ....... 177 The Coalition Government and the Question of Educa- tion, 179 rdFeb. 1854. Lord Advocate Moncreiff 's first Education Bill . . 179 Is complimented for his speech, . . . .181 The conflict of opinions in Scotland, . . . .182 Debate on the second reading, . . . .183 xvi CONTENTS PAGK Scottish members outvoted, and the Bill lost, . . 184 "Vindication of Scottish Rights," . . .184 The question of Scottish administration, . . .185 Jan, 1855. Defeat of the Coalition Government, . . . 187 Causes of Lord Palmerston's popularity in Scotland, . 188 Question of a Secretary of State for Scotland, . . 189 Lord Advocate Moncreiff's Parliamentary reputation, 190 Zrd\Mar. 1859. Defeat of Lord Palmerston on the Chinese Question, . 190 Dissolution of Parliament, . . . . .191 Weakness of the Manchester School in Scotland . .191 Lord Palmerston's victory, . . . . .193 Trial of Madeleine Smith, . . . . .193 Conduct of the prosecution by the Lord Advocate, . 197 Dean of Faculty Inglis for the defence, . . .198 The Scottish Universities, ..... 199 Moncreiff prepares a University Bill, . . . 200 ISM .Fed. 1858. 1 Defeat and resignation of Lord Palmerston, . . 202 CHAPTER V JOHN INGLIS John Inglis appointed Lord Advocate by Lord Derby, . 203 Parentage and education, . . . . .203 July 1835. Goes to the Bar ' 203 Articles in Blackwood, ...... 204 Success as an Advocate, ..... 204 Feb 1852. Appointed Solicitor-General, . . . . .205 Candidate for Orkney and Shetland, . . . 205 " The Friends of Protection in Scotland,". . . 206 May 1852. Appointed Lord Advocate, ..... 206 Tactics of Ministerial candidates, .... 207 Lord Advocate Inglis opposes Food Taxes, . . 207 Is defeated,. ....... 208 His speech after the declaration of the poll, . . 208 Goes as a candidate to Lisburn, .... 209 An election in Ulster, . . . . . .210 Is defeated, 210 nth Dec. 1852. Fal1 of tne Derby Administration, . . .210 Elected Dean of Faculty, 210 Head of the Bar, 211 Feb. 1858. Again Lord Advocate, and is returned for Stamford, 211 Failure of the Western Bank, . . . . .211 Speech on the duty of the Public Proseoutor, . 212 University Bill brought in by Lord Advooate Inglis, . 213 An Under-Secretary of State for Scotland proposed, . 215 CONTENTS xvii PAGH The proposal is defeated, . . . . .216 Death of Lord Justice Clerk Hope, . . .217 2nd Aug .1858. The University Act passed, 218 A new writ for Stamford already moved, . . .218 IZth July 1858. Lord Advocate Inglis appointed Lord Justice Clerk, . 219 Feb. 1867. Lord President, . . . . . . .219 His work as Chairman of the University Commission . 219 Elected Chancellor of Edinburgh University, . .221 His devotion to judicial work, . . . .221 20th Aug. 1891. Death, and public funeral, ..... 222 The Baillies of Jerviswoode and the Mures of Caldwell, 223 July 1858. Charles Baillie appointed Lord Advocate, . . 224 March 1859. Goes on the bench, ...... 224 23rd July, 1879- Death, 224 David Mure appointed Lord Advocate, . . . 225 March 1859. Fall of Lord Derby's administration, . . . 225 1864. On the bench as Lord Mure, ..... 225 11th April, 1892. Death 225 CHAPTER VI JAMES MONCREIFF — continued April 1859. Dissolution of Parliament, ..... 226 Moncreiff returned for Edinburgh,. . . . 226 Feud between Whigs and Radicals, . . . 226 Duncan McLaren and the Scotsman, . . . 227 June 1859. Lord Palmerston again Prime Minister, . . . 228 Mr. Gladstone's progress towards Liberalism, . .229 Moncreiff again Lord Advocate, .... 229 1860. Carries an Annuity Tax Bill, .... 229 1861. Carries a Bill abolishing the test for Schoolmasters, . 230 His activity in public business, . . . .231 Speaks on the office of Lord Advocate, . . . 232 Defends Lord Chancellor Westbury, .... 233 6th July 1865. Dissolution of Parliament, ..... 234 Lord Advocate Moncreiff and Adam Black opposed in Edinburgh, 234 A turbulent public meeting, .... 234 Duncan McLaren elected as the Lord Advocate's colleague, ... .... 235 Lord Palmerston 's final triumph, .... 235 18th Oct, 1865. Death of Lord Palmerston, ..... 235 The Russell administration, ..... 235 Effect of Lord Palmerston's death, .... 236 " Parliamentary Reform," ..... 236 xviii CONTENTS PAGE 18th June 1866. Fall of the Russell administration, . . . .237 State of public feeling in Scotland, .... 237 Moncreiff addresses a meeting of working-men on Manhood Suffrage, 237 George Patton appointed Lord Advocate, . . . 238 His early life, . 238 7^Jwnel866. Member for Bridgwater 239 12th July 1866. Defeated on seeking re-election as Lord Advocate, . 240 Feb. 1867. i s appointed Lord Justice Clerk, .... 240 Edward Strathearn Gordon appointed Lord Advo- cate, 240 2nd Dec. 1867. H e is elected for Tlietford, 240 31st July 1868. Dissolution of Parliament, 240 Moncreiff retires from Edinburgh, .... 241 Candidate for the Universities of Glasgow and Aber- deen, 242 Rectorial election at Edinburgh, .... 242 John Bright receives the freedom of Edinburgh. Scene on that occasion, .... 243 Moncreiff elected Rector at Edinburgh, . . . 244 Wins his Parliamentary election, .... 244 Result of the General election, .... 245 18th Jan. 1869. Rectorial Address at Edinburgh, .... 245 Lord Advocate again. A Sixth Education Bill, . . 247 Slow progress of Scottish business in Parliament, . 247 The Education Bill is lost, . . . . . 248 llth Aug. 1869. Parliament rises, ....... 249 Glenalmond, 249 A Commission on corrupt practices at Bridgwater, . 250 Anxiety and disappearance of Lord Justice Clerk Patton, 251 Is found in the River Almond, . . . .251 Article by Moncreiff in the Edinburgh Review, . . 252 His opinion on the lowering of the franchise, . . 252 Oct. 1869. Is appointed Lord Justice Clerk, .... 253 Receives a baronetcy and a peerage, .... 253 His lectures and addresses, ..... 254 Final opinion on Church and State in Scotland, . . 254 " An Educational Retrospect," .... 254 His method of composition, ..... 255 Controversy with Bishop Colenso, . . . . 255 Popularity as a public speaker, .... 256 Unexecuted literary projects .... 257 CONTENTS xix PAQB Publishes A Visit to my Discontented Cousin, . .257 Articles in the Edinburgh Review, . . . .257 Writes his Memories of Craigerook, . . . 258 Old age. Retires from the Bench, . . . 259 27 cannot be accomplished in a legal and con- stitutional way, either by application to Parliament, or by the exercise of those spiritual powers which are inherent in the Church, and ratified to her by the State, in the Revolu- tion Settlement, the Act of Security, and the Treaty of Union, and which are no more to be touched than the system of government at present subsisting in these realms. At the same time, these powers may be outstepped. If so, then both in my public and private character, I will refuse my support to them." the ground of relationship " an utter scandal," and says that no English lawyer in either House could be made to say a word in its favour. Journal, August 24, 1840. ANDREW RUTHERFURD 79 A warning of this kind was needed ; for the central Government in London was losing its hold on the country, and it was certain that before long there must be another general election, which would take place at a time when Scotland was in a state of dangerous excitement. The last attempt to settle the Church question by Act of Parliament during the Whig administration, was made by the Duke of Argyll, who brought in a bill almost identical with the Veto Act. 1 It was opposed by Lord Aberdeen, but supported by Lord Breadalbane and Lord Rosebery, who, though not himself a member of the Church, was always on the side of the Non-intrusionists. The General Assembly declared in favour of it 2 ; but it never reached a second reading. On the 19th of May, the day before the Assembly met, the Government was defeated by a majority of thirty- six on an amendment to the budget. 3 When the Commons met next day it was found, to the surprise of both parties, that the Ministers had neither resigned, nor advised a dissolution. 4 But the end came in the early morning hours of the 5th of June, when Sir Robert Peel's vote of want of confidence was carried by a majority of one. 5 Parliament was dissolved before the end of the month ; and the country plunged into that memorable general election, when, for the last time, the old Conservative party marched forth to battle with undivided forces. The Ministers went to the country hoping that their policy of a fixed duty would carry the day against the sliding scale, and that, whatever happened in the counties, the promise of cheaper bread would win the great towns. The people certainly wanted cheaper bread ; but in the English towns the Government barely held its own by a small margin, while in the counties protection, the chief battle-cry of the Opposition, swept the boards so thoroughly that from the 1 Hansaid lvii. 1478. 2 Acts of Assembly, May 26, 1841. 3 Hansard, lviii. 667. 4 For the divisions in the Cabinet on the question of resigning or dis- solving, see Letters of Queen Victoria, May, 1841. 5 Hansard, lviii. 1241. 8o THE LORD ADVOCATES OF SCOTLAND whole of rural England only twenty Liberals were returned. The Conservative majority in Wales was increased by one seat 1 ; and in Ireland, though the Government secured a majority of the elections, the Opposition made a gain of eleven. In England bad harvests, with population rising and wages falling, told against the Ministry. But in Scotland the electors could not be persuaded that Lord Melbourne and his colleagues were responsible for the weather or the birthrate, and that wages would be increased by turning them out. Nor was the cry of protection, so powerful in the English counties, of much avail in Scotland, where, even among landowners and farmers, the tide was already turning in favour of free trade. So, in the midst of the Ministerial debacle, Scotland remained almost as Liberal as ever, the Opposition making a gain of only two seats. Lecturers had been sent to Scotland soon after the forma- tion of the Anti-Corn Law League ; and their speeches in favour of the total abolition of the duties'on food, listened to in the sober fashion habitual to the Scottish electors, had made a great impression in the places they visited. But except on this question of food taxes, the teaching of the Manchester School was never popular in Scotland, where few of the people had any sympathy with the doctrine of peace at almost any price, or with proposals for loosening the connexion with the Colonies, to which so many of their kinsfolk had gone, and where they were so greatly pros- pering. The public opinion of Scotland had not changed since the Reform Act ; but most of the Liberals, even those who had made up their minds in favour of free trade, enjoyed some verses on the Manchester School which appeared in Blackwood, where Samuel Warren's " Ten Thousand a Year," perhaps the wittiest tale, and that is saying much, which was ever written for the famous monthly, was at that time ridiculing extreme radicalism and the " Bill for Giving Everybody Everything " : — 1 In 1832 there had been a small Liberal majority ; but from 1835 till 1865 Wales was Conservative. ANDREW RUTHERFURD 81 " Trust not the Tories for sense and sincerity, All about nothing they make such a fuss ; Leave them to prate of colonial prosperity, What are the East or West Indies to us ! Our free trade opinions are true thick and thin ones ; Of all our dominions we'll make a clean sweep ; No good to be had of them, France will be glad of them, Sell her both commerce and colonies cheap." 1 The local question of the Church gave both parties trouble ; and they came off best who took a bold line, and did not try to fence. On the 30th of June, Rutherfurd was again elected for Leith, without opposition. Four other town constituencies were uncontested, the Ayr, Inverness, and Montrose district*, and Edinburgh, where Macaulay, sus- pected of " Erastianism " and weakness on the corn law question, was threatened with opposition, which came to nothing, by the Non-intrusionists and the Anti-Corn-Law League. In Buteshire, Sir William Rae, despite his sym- pathy with Chalmers, had to fight another Conservative, an out-and-out Non-intrusionist, whose address was an " appeal to the Christian electors " ; but Rae won easily. At Glasgow and Dundee, and in the Kirkcaldy district ; Whigs and Radicals fought it out among themselves ; Glasgow returning two Radicals, both against patronage but both against Chalmers and his party, as were also the Members returned for the Wick, Haddington, and Kil- marnock districts. At Paisley a Chartist stood, but failed to obtain a single vote against his Liberal opponent. In the Falkirk district, the Radical, Mr. Gillon, lost his seat to the Conservative candidate, Mr. Baird, who also professed himself a supporter of the Non-intrusion party. For the Stirling district Lord Dalmeny was returned against the Radical, Mr. James Aytoun. There was no contest in Midlothian, where Mr. Ramsay of Barnton, the Conservative candidate, had come forward in support of protection and Non-intrusion. This was the gain of a seat to the Opposition. Campbell of Monzie carried his Non-intrusion colours into 1 Blackwood's Magazine, July, 1S41. G 82 THE LORD ADVOCATES OF SCOTLAND the county of Argyll, of which he became Conservative Member without a contest. Mr. Home Drummond was left unmolested in Perthshire ; and in the city of Perth Mr. Fox Maule was successful, but not without having to fight for his seat. A contest had been expected in Aberdeen- shire. About a month before the dissolution, during a last debate on the state of Scotland, Lord Aberdeen had told the House of Lords that the Church of Scotland was as tyrannical as the Church of Rome, and urged the Govern- ment to instruct the Lord Advocate to proceed against the General Assembly. This increased the enmity already felt against him, and an attempt was made to find a can- didate to oppose his brother, Captain Gordon, the sitting Member. But no one would stand against him ; and he kept his seat. 1 In twenty-two counties, returning fifteen Conservatives and seven Liberals, there were no contests ; and from the whole of Scotland, thirty-one Whigs and Radicals were sent to Parliament against twenty-two Conservatives of various shades. But the result of the elections over the rest of the United Kingdom was a solid Conservative majority, which enabled Sir Robert Peel to meet the new House of Commons at the head of a party nearly one hundred stronger than the other side ; a triumph which was duly celebrated in verse : — " Good-bye to the Whigs ! their dominion is o'er, By force or by fraud they can rule us no more. They may wriggle and writhe, but the struggle is vain, And long years will roll on ere they rally again, For in spite of some squealling from Pat and his pigs, The Country has said it — ' Good-bye to the Whigs ' ! " Parliament met on the 19th of August ; and on the evening of the 30th, amendments to the address having been carried in both Houses some days before, the Ministers announced their resignation. 1 Captain, afterwards Admiral, the Hon. William Gordon was Conserva- tive member for Aberdeenshire from 1820 to 1854, when he retired, and was succeeded by his" nephew Lord Haddo, who sat as a Liberal till 1860, when he became the 5th Earl of Aberdeen. ANDREW RUTHERFURD 83 Two Scotsmen were prominent in Sir Robert Peel's new Cabinet. Lord Aberdeen was Foreign Secretary ; and Sir James Graham, whose political wanderings had brought him, for the time being, to the small constituency of Dorchester, was at the Home Office. Rutherfurd's successor was Sir William Rae, whose present term of office lasted till his death in October. 1842, when he was succeeded by Duncan McNeill, afterwards Lord Colonsay. On seeking re-election as Lord Advocate, Sir William Rae raised the hopes of the Church party by predicting that the new Government would settle their troubles by a measure even more liberal than the Duke of Argyll's bill ; but in this he was mistaken, the ruling spirits in the Cabinet having decided otherwise. 1 Lord President Hope was now approaching eighty. He had been on the bench for thirty-seven years, and head of the court for thirty ; but if the Melbourne Government had not fallen he would undoubtedly have thought it his duty to remain in harness for the rest of his life, rather than allow a Whig Lord Advocate to take his place. But the change of Government enabled him to retire with a clear conscience into private life, and also to do a good stroke of business for his son. He resigned. Lord Justice Clerk Boyle was appointed Lord President ; and John Hope, the Dean of Faculty, succeeded Boyle in the chair of the Second Division of the court, where he presided for the next seventeen years. Outside the Parliament House it was expected that Rutherfurd would now be elected Dean of Faculty. On the elevation of Boyle he made a speech which pleased the bar, and gratified the new President's family. 2 But he 1 For Sir William Rae's first term of office, from 1819 to 1830, see The Lord Advocates of Scotland, etc. (1883), vol. ii, pp. 256-298. Scotland was not so numerously represented in the Peel admiiiistration as it had been in that of Lord Melbourne. The Duke of Buccleuch, however, was Lord Privy- Seal and Lord Haddington First Lord of the Admiralty, both with seats in the Cabinet. Captain Gordon was a Lord of the Admiralty ; and Mr. Alexander Pringle of "VYhytbank, Member for Selkirkshire, one of the Lords of the Treasury. 2 " When in 1841 my father became Lord Justice General (a distinction 84 THE LORD ADVOCATES OF SCOTLAND had never courted popularity, and, with all his great qualities, was respected rather than liked, except by his personal friends. With his intimates he was a charming companion ; but he mixed little in the social life of his profession beyond a chosen circle. This had apparently given offence. Per- haps, too, politics, or the strong line he had taken in the Church question, estranged the bar ; and, whatever the reason may have been, the baton of the Dean was given to Patrick Robertson, Sir Walter Scott's " facetious Peter," the huge, fat Yorick of the bar, whose jokes set the Parlia- ment House in a roar, the best jury speaker of his day, and lately the leading counsel for the Moderate party in many of the Church cases. 1 Out of office Rutherfurd had greater freedom in the House of Commons than when he was Lord Advocate, and was, in company with Mr. Fox Maule, the chief spokesman for the Church on the left hand of the Speaker. On the Govern- ment benches there was a new recruit, Campbell of Monzie, now Member for Argyllshire. Sir Robert Peel had asked him to take office as a junior Lord of the Treasury ; but he declined, in order to remain independent on the Church question, and was a conspicuous figure during the debates of the session which began in February, 1842. Soon after Parliament met Peel declined to say whether the Government intended to take up the Scottish question. 2 It has repeatedly been said that he was biassed against Chalmers by the importunities of John Hope, who is described as an evil spirit who led the English Ministers astray. But his influence was not so strong as the leaders of the Non-intrusion party supposed. " The extreme which would have been Rutherfurd 's had President Hope retired during the life of Lord Melbourne's Ministry) Rutherfurd, to the delight of all my father's friends, proposed a resolution at a meeting of the bar in touching and eloquent terms." — Recollections of Dean Boyle, p. 25. 1 Robertson was specially witty at dinners, when the bottles had gone the " five or six rounds " recommended by Scott. He took a leading part in the famous revels of the Edinburgh Theatrical Fund dinner of February 23, 1827, at which Scott admitted the authorship of the Waverley novels. Made a judge in 1843, he died suddenly in 1855. • Hansard, lx. 103, ANDREW RUTHERFURD 85 opinions of Hope on one side of the Church question," Peel wrote to Graham in October, 1841, " and the intemperance with which he urged them, long since shook my confidence in his judgment." Chalmers had a more subtle foe in Lord Aberdeen, and also in Sir James Graham, who told Peel that the Non-intrusion party were " evidently acting in bad faith, and organizing resistance to the law, while they seek to gain importance by ' negotiating,' as they call it, with the Government." The policy of the new Govern- ment was, therefore, to treat Chalmers and his party as men who were not to be trusted, and to avoid negotiations with them. In March the Home Secretary announced that there was to be no legislation, and that the law, " as laid down by the civil tribunals of the country," would be enforced. This brought up Campbell of Monzie. " The Right Honourable baronet," he said, " has declared in the most emphatic terms that he will enforce the law against the Church of Scotland. I beg to tell him that he cannot. I defy him to do it." 1 He then moved for a select committee to investigate the question ; but this proposal was defeated by the Government, though a majority of Scottish members voted for it. 2 The Duke of Argyll's bill, which had been read a first time in the House of Lords before the dissolution, 3 was brought into the other House by Mr. Campbell ; and the second reading was fixed for the 4th of May. But on that day the Government moved to postpone it till the 15th of June, on the ground that they were now contemplating a measure of their own. Though Mr. Campbell consented, Ruther- furd divided the House against this delay, but was defeated by a large majority. Nothing more was heard about the Government's bill, except a rumour that Lord Aberdeen and Sir James Graham had threatened to resign if it was brought in. The 15th of June came. Delegates from both parties in Scotland went to the House of Commons to hear their question explained to the English Members. Ruther- 1 Hansard, lxi. 641. 3 Ibid., 653. 3 Supra, p. 79. 86 THE LORD ADVOCATES OF SCOTLAND furd had hurried up to London to support the bill. Sir James Graham had that morning told his friends what he meant to say against it. But at the last moment the Speaker intervened. The bill, he said, affected livings of which the Crown was patron, and should not have been brought in without the royal consent. Mr. Fox Maule asked the Prime Minister to waive this objection, and allow the discussion to proceed. Peel, who had not heard of the objection till the House met, refused. He would never, he said, consent to a constructive consent of the Crown on any question which concerned the prerogative. The order for the second reading was, therefore, discharged. 1 The end of the struggle was at hand. The manifesto of the Church known as the Claim of Rights was sent to the Government. 2 An address to the Queen, praying for the abolition of patronage, was drawn up, and transmitted to London. The Home Secretary acknowledged the receipt of these documents in a letter which is an example of that curiously autocratic manner which he sometimes displayed 3 ; and for six months no further notice was taken of them. During these six months events in Scotland hastened on. The Court of Session was occupied with interminable argu- ments on various phases of the dispute. 4 The House of Lords confirmed a decision of the Scottish judges finding that damages might be recovered from the presbytery of Auchterarder by the patron and the minister who had been rejected. 5 This made the heather blaze yet more fiercely. Church Defence Associations were formed all over Scotland, and in autumn a " Convocation " of four hundred clergy- men passed resolutions in which they recapitulated their grievances, and decided, if the Government did not move, 1 Commons' Journals, June 15, 1842 ; Hansard, lxiii. 1584. 2 Claim, Declaration, and Protest anent the Encroachments of the Court of Session, May 30, 1842. 3 Sir James Graham to the Marquess of Bute, June 20, 1842. 4 Return showing the Number of Causes at present pending in the Court of Session, respecting the Exercise of Patronage in the Church of Scotland. — Pari. Papers, 1842, xxxiii. 443. 6 This was in a second Auchterarder case ; August 9, 1842. ANDREW RUTHERFURD 87 to go to Parliament for redress, and, if this appeal failed, to resign their livings, and separate from the State. These resolutions forced the hand of Sir Robert Peel, who wrote to the Queen, saying that " an answer to the demands of the Church will now become necessary." 1 How com- pletely he misunderstood the point at issue is shown by the way in which he represents the dispute as turning on the law of patronage ; and how ill-informed he was as to the state of Scotland may be gathered from a sentence in another letter of that period. " I believe," he wrote, " the main cause of the present embarrassment is the subjection of very many ministers of the Church of Scotland, through fear, and against their own conscientious opinions, to the violence and menaces of their leaders." 2 The followers of Chalmers may have been entirely in the wrong ; but to say that they were acting against their conscientious opinions was absurd. For eight years a majority of the General Assembly, in which laymen and clergymen sat together, had been of the same mind. Popular demon- strations ; Parliamentary elections ; votes of Scottish Members in the House of Commons ; speeches in the House of Lords by Scottish peers, the Duke of Argyll, the Marquess of Breadalbane, the Earl of Rosebery ; the opinions of members of the bar, professors in the Universities, land- owners, and wealthy merchants ; all made it ridiculous to suppose that clerical domination accounted for the Scottish troubles. Nevertheless it was under that impression that Sir Robert Peel helped the Home Secretary to prepare the answer of the Government. 3 No attempt was made to answer the Claim of Rights ; and, indeed, during the winter of 1842, 1 Letters of Queen Victoria, December 26, 1842. 2 To Sir George Sinclair, December 7, 1842 ; Parker's Sir Robert Peel, iii. 89. 3 The answer was composed by Peel and Graham. "It is certainly," Cockburn makes a guess, "not written by Sir James Graham, the Home Secretary, who signs it. Some give it to Duncan McNeill, the Lord Advocate, who I don't believe wrote it. . . It is much liker Lord Aberdeen." — Journal, i. 340. 88 THE LORD ADVOCATES OF SCOTLAND Peel, overwhelmed with business, and leader of a party which was now breaking up into factions, could scarcely have found time to master the subject. What he and the Home Secretary did was to dismiss the claims of the Church by asserting that they were equivalent to the claims of the Church of Rome, and push the question of patronage to the front. As to that they gave the peremptory answer that they would do nothing to satisfy the wishes of the Church. 1 The Duke of Wellington and the Duke of Buccleuch, and no doubt Lord Aberdeen also, saw the letter ; and then Peel sent it to the Queen. " Their demands," she wrote, " are most extraordinary and inadmissible." 2 Peel gravely answered that he rejoiced to hear of the royal approval. He was, however, aware that the Church of Scotland stood on the brink of a great disaster, and warned the Queen that many ministers, followed by their congregations, would secede. 3 At the end of January a special meeting of the " Com- mission " of Assembly was called to discuss the Home Secretary's letter. An important case had just been decided. In 1834 the Assembly which passed the Veto Act had, under the same misapprehension of the probable consequences, passed what was known as the Chapel Act, which provided that ministers of non-parochial charges should sit in the courts of the Church, and have assigned to them districts made into parishes by the presbyteries within the territorial boundaries of which these districts lay. 4 This had been done in so many places that about two hundred new congregations had been added to the Church of Scotland within a few years ; but the question was raised as to whether this was legal, and the matter came to a final decision in the case of Stewarton in Ayrshire, 1 The letter, dated January 4, 1843, is in Pari. Papers, 1843, xlix. 481. It will also be found in Acts of the Free Church Assembly, 1843, and in the Annual Register for 1843, pp. 441-470. 2 The Queen to Peel, December 29, 1842, Parker, Sir Robert Peel, iii. 97. 3 Peel to the Queen, December 30, 1842, Letters of Queen Victoria, 4 Declaratory Enactment as to Chapels of Ease, May 31, 1834. ANDREW RUTHERFURD 89 where the presbytery of Irvine had created a new parish. The patron of Stewarton, out of which the new parochial district was to be carved, and several landowners, applied to the court for an interdict, or injunction, against the whole proceeding. This question was debated, before the whole court, by Dean of Faculty Robertson and Rutherfurd at great length ; and the judges, by a majority of seven to five, decided that the presbytery of Irvine could not lawfully create the separate parochial district, and that the minister of such a district must not sit in the Church courts. 1 When the Commission met the Moderate party moved that, in deference to this judgment, all those who were ministers of non-parochial charges, erected under the Chapel Act, should be excluded, This motion was defeated ; and the Moderate party at once withdrew on the ground that the Commission was not legally constituted. Thus left complete masters of the field, the Non-intrusion party, who had defeated the motion by 115 votes to 23, passed resolutions in answer to the Home Secretary's letter, and decided that, seeing no help from Government could be hoped for, the time had come for an appeal to Parliament. 2 1 Cunninghame and others v. Presbytery of Irvine, January 20, 1842. In the course of this case Mr. Dunlop, who was one of the junior counsel for the presbytery, said in a written pleading that his clients would con- tinue to obey their ecclesiastical superiors, whatever the judgment of the civil court might be. This gave great offence ; and Rutherfurd, who had some difficulty in appeasing the judges, cancelled the statement of which they complained. Mr. Dunlop himself appeared in court, and made an apology. 2 The second resolution was in these words : " The letter seems to assume that the Church placed her application for the abolition of patron- age on the same footing with her claim to be protected against the invasions of the civil courts, in the exercise of her spiritual functions and jurisdictions, as solemnly ratified by statute and by national treaty ; and that the Church considered both of these measures as equally indispensable to the con- tinuance of her connexion with the State ; whereas it was the vindication of her spiritual jurisdiction which the Church claimed as being indispensable to her existence ; the abolition of Patronage she sought as a concession she deemed right and desirable." — Acts of Assembly (Commission), January 31, 1843. It was now eight months since, for the first time, a resolution in favour of the abolition of patronage had been carried in the General Assembly (Acts of Assembly, May 23, 1842). Chalmers had reluctantly come round to the views of those who had all along wished for THE LORD ADVOCATES OF SCOTLAND A petition was drawn up which recited the grievances of which the Church complained, and prayed the House of Commons to take measures to secure the independent jurisdiction of the ecclesiastical courts, and to alter the law of patronage so as to prevent the intrusion of ministers against the will of the congregations. The question was how to obtain some practical result. Mr. Fox Maule pro- posed to move certain resolutions ; but it turned out that technical objections were likely to be raised against them, and Rutherfurd took the matter into his own hands. It seemed to him that it was useless to expect that the Commons would grant the prayer of the petition merely on the state- ments made by the Church, and that the proper course was to ask for an inquiry. He, therefore, after consulting the Speaker, gave notice that he would move : " That this House will immediately resolve itself into a committee, to take into consideration the petition of the Commission of the General Assembly of the Church of Scotland, and the matters therein contained." On the 7th of March, Mr. Fox Maule, who had been in Scotland when this motion was tabled, took Rutherfurd's place, and tried to show the House that when there was a conflict of jurisdictions between two courts it was the duty of Parliament to intervene, and, if necessary, pass a declara- tory Act to settle the dispute. Sir James Graham objected to any inquiry, on the ground that the pretensions of the Church were so unreasonable that they could never be realized, " except in a country where law, order, equity, and commonsense had ceased to reign." This blunt refusal even to consider the questions which had occupied the people of Scotland for so long gave Rutherfurd his opportunity. The point at issue, he said, was not the character of the claims made by the Church, but whether, in point of fact, they were founded on the laws of Scotland. They were not extraordinary, merely because they might the abolition of patronage ; but to the " popular election " of ministers he was opposed. " I have no faith," he said, " in the infallibility of the popular voice. I do not subscribe to the maxim vox populi vox Dei." ANDREW RUTHERFURD 9i appear so to those who were familiar only with the laws of England and the English constitution. He explained the statutes on which the Church relied, and their history, and pressed the argument that, even if the claims of the Church were unreasonable, the law of Scotland had recognized them, and Parliament alone had power to change that law. Let Parliament find, by an impartial inquiry, whether or not the claims of the Church of Scotland were lawful claims. All that was asked was an inquiry. " Let it not be imagined," he said, " that the courts of law are coming out of this inquiry with honour." Their orders were openly disobeyed. He had been blamed, when Lord Advocate, for refusing to prosecute ; but he had refused, and so had his successor. If there had been faults in this dispute, there had been faults on both sides. " I will say," he told the House, " though I have to meet the judges in a day or two, that the language used on the bench has done much to exasperate the evil. The clergy have been spoken of by one judge as rebels and thimbleriggers. I will not name the judge ; but I say, with extreme pain, that language of that sort has done much to embarrass the question." There was a dangerous crisis in Scotland ; and he appealed to the House to go into committee, and consider, fairly on their merits, the questions raised in the petition. 1 Sir George Grey was the most prominent English Member who spoke for the motion. Lord John Russell opposed it ; and both he and the Prime Minister devoted their speeches to answering Rutherfurd. " My Right Honour- able friend, the Member for Leith," said Lord John, " has said that the Church does not claim supreme power save over what is spiritual, and that she allows the civil authority in other matters ; but I cannot conceive the connexion between Church and State carried on under such con- ditions." 2 Sir Robert Peel spoke in the same way. " The Right Honourable gentleman opposite," he said, " says that these courts, civil and ecclesiastical, have a co-ordinate jurisdiction. That would amount to something very like 1 Hansard, lxvii. 394. 2 Ibid., 466. THE LORD ADVOCATES OF SCOTLAND a separation of Church and State. It is, in fact, impossible that the two courts can co-exist." 1 Against this impenetrable resolve to refuse all inquiry into what the law actually was no appeal prevailed. The Scottish Members were anxious to hear how a lawyer of such great skill and experience as Sir William Follett, the Solicitor- General for England, would answer Rutherfurd ; but he did not even attempt an answer, and contented himself with a general denial that there could be the two independent courts of which Rutherfurd had spoken. " I cannot," he said, " believe that such is the law of Scotland." 2 The debate occupied two evenings ; and when the House divided, the motion to go into committee was defeated by 211 to 76. Of the Scottish Members, ten Conservatives and six Liberals were absent. One of these was Rutherfurd himself, who had probably obtained a pair, and hurried down to Scotland to " meet the judges." Of the thirty- seven who voted, twenty-five were for the motion, and twelve against it. Thus, so far as the Scottish Members were concerned, there was a majority of two to one for going into committee. But the Ministers, including Mr. Glad- stone, who was then Vice-President of the Board of Trade, outvoted them. Lord John Russell, in company with Lord Palmerston, voted with the Government, though his brother, Lord Edward, and Sir George Grey were in the minority, which included Macaulay and Mr. Gibson Craig, Captain Dalrymple, in later days so popular in Scotland as the tenth Earl of Stair, Lord Dalmeny, and others bearing well-known names. Lord Campbell made what he calls a " vigorous effort to prevent the disruption of the Church of Scotland," by 1 Hansard, lxvii. 491. 2 Ibid., 482. This failure to grapple with the argument for the Church seems to have been noticed by persons who were not concerned in the dispute. " So far as I can judge," one writer says, " the speech of Mr. Rutherfurd was never answered, and the arguments of Sir James Graham and Sir Robert Peel were rather of what would be expedient were a new law to be made than a reply to the law of the Church, as established by several solemn Acts." — Memoir of Dr. Landsborough, p. 186. ANDREW RUTHERFURD 93 moving resolutions in the House of Lords, for the failure of which he blamed Lord Aberdeen. 1 But the Court of Session had followed up the judgment in the Stewarton case by decrees forbidding the representatives of the non- parochial charges to sit in the General Assembly. It was useless to continue the struggle ; and on the 18th of May, 1843, the Non-intrusion party laid their last protest on the table, bowed to the Queen's Commissioner, and left the place of meeting. The disruption was formally completed by an " Act of Separation and Deed of Demission," under which Chalmers and his party renounced their connexion with the State, and gave up their churches, houses, lands, and incomes. The final steps by which a part of the Church of Scotland thus disestablished and disendowed itself were taken under the legal advice of Ruther- furd, who received a vote of thanks from the first General Assembly of the " Free Church " for his speech in the House of Commons. 2 The theory of the Free Churchmen was that they had not left the Church of Scotland. We are the Church of Scotland, they said. As the Church of Scotland we pre- sented the Claim of Rights to Government. As the Church of Scotland we appealed to Parliament. As the Church of Scotland we still hold that it is the duty of the State to maintain an Established Church. But we purpose to remain free and separate from the State, until Parliament gives us the rights we claim, adopts us as the Establishment, and leaves us to deal with the clergy of the present Estab- lishment as so many ecclesiastical delinquents who have forsaken their original principles. 3 And, indeed, in the General Assembly of the Free Church no change was seen 1 Life of Lord Campbell, ii. 176 ; Hansard, lxviii. 218. 2 A committee was appointed " to wait on Mr. Rutherfurd, to ascertain in what way it would be most agreeable to him that the thanks of the Assembly be communicated." — Proceedings of Free Church Assembly, May 26, 1843. 3 Evidence of Dr. Chalmers, Second Report of Select Committee on the Refusal of Sites to the Free Church, Q. 6368. Pari. Papers, 1847, xiii. 311, THE LORD ADVOCATES OF SCOTLAND except that the Royal Commissioner and the Officers of State were not there. The " Moderator," in court dress, occupied the chair as usual. The old forms of procedure were preserved. The clergy and the laity were of the same social standing as those who remained in the Established Church. Throughout the country the system of govern- ment was unaltered. Theological colleges were instituted at home, and foreign missions were continued abroad. The territorial boundaries of parishes were the same as before. The only differences were that the question of patronage was out of the way, and that the stipends were paid from a central fund, which took the place of the ancient endowments, and was so distributed that no clergyman was dependent for his income on the caprice of his parishioners. There was no lack of money. Rich and poor alike subscribed ; and their contributions were so liberal that month after month large sums were poured into the common treasury. 1 This brilliant success, the intense conviction that he had been wronged which every man carried with him when he walked out of his home, natural resentment too at the refusal of sites for new churches and manses — a species of petty persecution which continued for some years — may explain the arrogant way in which too many of the Free Church leaders spoke of those who did not join them. When a Free Churchman, accused of holding the principles of Hildebrand or Laud, retaliated by calling his accuser an " Erastian " no harm was done. But constantly to in- sinuate that only a Free Churchman could be a good 1 In June, 1845, the Marquess of Breadalbane, himself a Free Church- man, told the House of Lords that 530 churches had been built since the disruption, that the number would soon be increased to 700, and that ^725,452 had been subscribed in two years. Hansard, lxxxi. 270. Ruther- f urd was one of those who gave donations of money and books to the library of the Free Church. Mr. Patrick Maxwell Stewart, M.P. for Renfrewshire, said in the House of Commons that the proportion to the population of Scotland of these who joined the Free Church at the disruption was as if 5,000 clergymen and 8,000,000 of the people had left the Church of England. Hansard, lxxv. 402. ANDREW RUTHERFURD 95 Christian; to describe those clergymen who remained in the Established Church as apostates and blood-suck- ers ; to call them traitors, renegades, and hirelings ; this was a very different thing. Yet all these words were actually used ; and the Witness newspaper, the official mouthpiece of the Free Church, advised the people of Scot- land to treat the parish clergyman as an outcast under sentence of excommunication, as " the man with whom no one is to join in prayer ; whose church is to be avoided as an impure and unholy place ; whose addresses are not to be listened to ; whose visits are not to be received ; who is to be everywhere put under the ban of the community." 1 Most of the peaceable country ministers, the last survivors of whom have long since been laid to rest in the quiet grave- yards of the parish churches they so honourably left, disregarded this shameful advice, and lived in harmony with their neighbours. But in the towns there were others, whose violent speeches and aggressive temper, encouraged by popular applause, raised a bitter feeling against all Free Churchmen, which lasted for many years, and was, soon after the disruption, one of the causes of a movement to exclude them from offices in the Scottish Universities. A statute passed by the Scottish Parliament after the Revolution required professors and other office-bearers to sign a declaration that they accepted the Westminster confession of faith, and would submit to the government of the Presbyterian Church as established by law. 2 At the Union the Act of Security contained a clause to the same effect. 3 This test applied to secular and theological offices alike ; but for many years before the disruption, theological chairs alone had been held exclusively by members of the Established Church. After the disruption Chalmers, who was Professor of Divinity at Edinburgh, and Dr. Welsh, Professor of Church History, at once resigned. These 1 The Witness (leading article), June 3, 1843. 2 Act for the Visitation of Churches, Colleges, and Schools, July 4, 1690. 3 Act for Securing the Protestant Religion and Presbyterian Church Govern- ment, January 16, 1707. 96 THE LORD ADVOCATES OF SCOTLAND resignations of theological professors were obviously inevit- able. But Free Churchmen who held secular offices retained them ; and an attempt was made to apply the test, and drive them from the Universities. It says little for the wisdom of the moving spirits in this attempt to enforce a test which had fallen into desuetude that they should have chosen to attack the Free Church in the person of one of the most distinguished men of science in Great Britain. The discoveries and writings of Sir David BreAvster, Principal of the united colleges of St. Salvator and St. Leonard in the University of St. Andrews, had gained him credit, not only in this country but abroad. The Institute of France, and the Royal Academies of several continental nations, had bestowed honours upon him. He was highly esteemed by every learned society in Europe ; but he left the Established Church of Scotland, and the presbytery of St. Andrews forthwith challenged his right to hold office in the University, insisting that he should not only be removed, but also censured and punished " for the glory of God, the safety of the Church, and the prosperity of the University." 1 This effort to promote the prosperity of an University by expelling its most eminent member failed. The law, though requiring office-bearers to sign the test declaration, had not provided for any penalty if they changed their opinions. Free Churchmen, therefore, could not be de- prived of their chairs ; but the test might be used to prevent the appointment of other Free Churchmen in future. This raised the whole question of tests in the Scottish Univer- sities ; and in April, 1844, Mr. Fox Maule moved for leave to bring in a bill to abolish them, except for the theological chairs. He was supported by Rutherfurd, in one of his best speeches ; but the Government was too strong, and, though a large majority of Scottish Members voted with 1 The presbytery acted against the advice of counsel, Mr. John Inglis, afterwards Lord President, having signed (November 13, 1843) an opinion advising them not to proceed. — Case for the Presbytery of St. Andrews in the Libel against Sir David Brewster, 1845. ANDREW RUTHERFURD 97 Mr. Rutherfurd and Mr. Maule, leave to bring in the bill was refused. 1 The Radical Members for the city of Glasgow had voted with Sir Robert Peel on the Church question. But the sympathies of the University were on the other side ; and in the autumn of 1844, a few months after his speech against the tests, Rutherfurd was proposed for the office of Rector. These rectorial elections turned, as a rule, on polities. Three members of the Government had been Rectors of Glasgow University, Sir Robert Peel, Lord Stanley, and Sir James Graham 2 ; and Lord Eglinton was now brought forward by the Conservatives. Liberalism was, however, predominant in the University ; and Rutherfurd was elected. 3 In January, 1845, a party of his friends went from Edin- burgh to hear his inaugural address, which he delivered in the old common hall of Glasgow College. One of them was Cockburn, who thought the address suffered from being " every word pre-composed." Though stately and elo- quent, as all Rutherfurd's orations were, it was perhaps too highly polished ; but the members of the University received it with loud applause, and one passage was parti- cularly noticed, in which the new Rector expressed his regret that " the same liberality which has opened your schools to the taught has not been extended to the teachers." This was taken as a hint that the abolition of the tests would be again proposed in Parliament. 4 If the Scottish Members had been left to decide the ques- 1 Hansard, lxxiv. 480. 2 The Duke of Sussex was put up against Sir James Graham, and there were great rejoicings at the defeat of " the Queen's favourite uncle." Sir James received a letter from Sir Henry Hardinge full of triumph that " the Royal Radical of Kensington," was beaten. " I know," he wrote, " that it was a bitter disappointment to the Whigs." — Parker, Sir James Graham, i. 276. 3 " His Lordship failed solely because he is a Tory and a Churchman, whereas Rutherfurd is a Whig, and rather a Free Churchman." — Cock- burn, Journal, i. 97. This was the 3rd Earl of Eglinton, whose tournament at Eglinton Castle had been so much talked about in 1839. 4 This address (January 10, 1845) is published in British Eloquence of the Nineteenth Century (3rd series), and in the collection of Inaugural Addresses by the Rectors of Glasgow University. H 98 THE LORD ADVOCATES OF SCOTLAND tion for themselves, Mr. Fox Maule's bill would have gone through the House of Commons easily ; and it was possible that the Lords might have passed it. Rutherfurd, therefore, resolved to make another attempt ; and when Parliament met his bill was ready. But before the day came on which he was to ask for leave to bring it in, the Commons had to settle another question, on which the Established Church and the Free Church, laying aside their disputes about University tests and other matters, were in complete agree- ment. When Sir Robert Peel resolved to increase the grant to Maynooth College he foretold opposition in Scotland ; and he was not mistaken. Though first given by the Protestant Parliament of Ireland the grant had always been detested by the Presbyterians ; and when the bill was brought in to increase it from £9,000, voted annually, to £30,000, and make it permanent, an agitation arose in Scotland which, though not so violent as the agitation against the repeal of the penal laws in 1778, or against Catholic Emancipation in 1829, soon spread all over the country. The Member for Selkirkshire, a Lord of the Treasury, resigned office. From the Pentland Firth to the Cheviots public meetings protested against endowments to " the Babylon of Iniquity," and " the Son of Perdition " ; and a new Solemn League and Covenant was proposed, which was to be signed by " a phalanx which will loose the joints of the uncircumcised with deadly fear." The Assembly of the Established Church sent up a petition to Parliament and an address to the Throne against the bill. Mr. Fox Maule's first speech in the Assembly of the Free Church was an attack upon the grant ; and a " Committee on Popery " was instructed to consider the best means of " defending the cause of Truth against the opposition of the Man of Sin." The " Volun- taries " agreed with both Churches, and hoped that this endowment of Roman Catholics would " rouse the public to a sense of the numerous evils springing from the Establishment principle." Macaulay and Mr. Gibson Craig received an address in- ANDREW RUTHERFURD 99 timating that those who signed it would never vote for them again, if they dared to support the grant ; and all the Scottish Members were warned that they would have a heavy account to settle with their constituents if they spoke or voted for it. Rutherfurd, however, like Macaulay, was not to be intimidated by these threats. It was on the 14th of April, 1845, that Macaulay made the speech in which he used the words which infuriated so many of the electors : " The Orangeman raises his war-whoop ; Exeter Hall sets up its bray." 1 Two days later, on the fourth evening of the debate, Rutherfurd spoke in a way which encouraged other Whigs from Scotland to show that they would not yield to popular clamour. He knew, he said, that he was giving an opinion which was against the senti- ments of many of his constituents, and that he might be called to account for his vote ; but his reply would be that the question was one with respect to which he must act on his own convictions. He, therefore, voted with the Government in the division when the second reading of the bill was carried. 2 The way was now open for the bill to abolish the test for secular, or lay, chairs in the Scottish Universities ; and on the 1st of May Rutherfurd moved for leave to bring it in. His speech made such an impression that the Ministers, who had intended to oppose the motion, did not divide the House. He obtained leave ; and the bill was afterwards brought in, and read a first time at midnight on the 6th of May. 3 But the second reading was not reached till July ; and in the meantime the General Assembly of the Church of Scotland had met. When Mr. Fox Maule's bill was before the country, in the previous year, the Assembly had sent to all Members of Parliament a resolution which declared that the abolition of the test would inflict " a fearful injury " on the Scottish 1 Hansard, lxxix. 646. 2 On April 16, 1845. Mr. Fox Maule was the only Whig ex-Minister who voted against the grant. 3 Commons' Journals, May 6, 1845, ioo THE LORD ADVOCATES OF SCOTLAND Universities, and bring peril, not only to Scotland, but to every part of the British Empire. 1 A similar resolution, condemning Rutherfurd's bill, was now carried by a huge majority, and a petition against it was sent to Lord Advo- cate McNeill for presentation to the House of Commons. 2 These proceedings confirmed the Ministers in their deter- mination to maintain the test. Rutherfurd was unable to attend and move the second reading of his bill ; but he provided a brilliant substitute in Macaulay, who, after a graceful compliment to " my honourable and learned friend the Member for Leith," 3 made a speech so powerful that only the compulsion of the party system could have induced a majority of the Commons to vote against him. Even as it was, he very nearly carried his point, though the Ministers had resolved to outvote the Scottish Members as they had outvoted them on the Claim of Rights two years before. The bill was thrown out, but only, in spite of the Government whip against it, by eight votes. The Scottish Members were more than two to one in favour of it. 4 Soon after Parliament rose Rutherfurd and the Scottish Members had something more serious to think of than whether Protestantism would perish if the students at a Catholic college were allowed some of the comforts which every undergraduate at Oxford enjoyed, or whether the Universities of Scotland would be ruined by the presence of such men as Chalmers and Bre w ster. Every traveller by the weekly steamboat from Belfast to Stranraer brought evil tidings about the potato crop in Ireland. In Scotland, as in England that year, the harvest was bad — it was the first bad harvest since Sir Robert Peel came into power — ; and in October 1 Proceedings of Assembly, May 24, 1844. 2 Ibid., May 27, June 2, 1845. The resolution was carried by 246 to 11. The Free Church, of course, supported the bill. Act anent the Tests in the Universities of Scotland, May 31, 1845. 3 "I am truly sorry he is not among us to take charge of the bill which he not long ago introduced with one of the most forcible and luminous speeches that I ever had the pleasure of hearing." 4 Hansard, lxxxii. 227-279. Cockburn, alluding to the loss of the bill, says, " The reason for this was that the General Assembly was against it." — Journal, ii. Ill, ANDREW RUTHERFURD 101 it could no longer be doubted that the country was face to face with the possibility of famine. The crisis of Peel's career had come. " The remedy/' he told Sir James Graham, " is the removal of all impediments to the import of all kinds of human food — that is, the total and absolute repeal of duties on all articles of subsistence." 1 Then the Cabinet began to deliberate, three or four times a week, on whether the food taxes should be removed, whether Parliament should be summoned, whether the ports should be opened by an order in council. In the summer of that year Lord John Russell, Lady John, her son and daughter. Lord Ribblesdale and Mrs. Warburton, and Lord Amberley. who was then a child, had gone to Scotland for Lady John's health. She grew worse, and they had to visit Edinburgh to consult the doctors. Rutherfurd had now a country house in Midlo- thian, Lauriston Castle in the parish of Cramond. formerly the property of John Law, the notorious financier of the early eighteenth century. When he bought it, it was merely a square tower with turrets, surrounded by a ruined wall, and standing in the midst of pasture lands. But he had made additions, and changed it into a com- modious and attractive mansion with gardens noted for their beauty. This place he lent to Lady John Russell and her party, who left their hotel in Edinburgh, and lived at Lauriston till the following spring, Lord John coming to see them from time to time. It was during one of these flying visits to Scotland, when the Ministers, unable to agree but naturally unwilling to break up their party, continued to deliberate, and the weeks passed on with nothing done, that Lord John sent his memorable Edinburgh letter to the electors of London, abandoning the fixed duty, and declaring for the total repeal of the corn laws. The Government, Lord John said, appeared to be waiting for some excuse to give up the corn laws ; so let the people, by petition and remonstrance, afford them the excuse they wanted. In response to this suggestion many public nieet- 1 Parker, Sir Robert Peel, in. 224. THE LORD ADVOCATES OF SCOTLAND ings were at once held in Scotland. 1 On the 1st of Decem- ber Rutherfurd took one of his nephews 2 down with him to Leith, and spoke at a meeting called to petition Govern- ment to open the ports ; and on the afternoon of the next day he was at another meeting in the Music Hall at Edin- burgh. Adam Black, then Lord Provost, was in the chair ; and on the platform were Lord Dalmcny, Sir James Gibson Craig, Sir Thomas Dick Lauder, Sir George Macph^rson Grant, Sir Charles Napier, and many other notable Whigs, assembled to hear Macaulay, who had torn himself away from his study in the Albany and journeyed to Scotland for that one day, make a speech which was cheered again and again by an audience many of whom were, no doubt, to be amongst that hostile crowd which gathered before the hustings in the summer of 1847, but who were now all with him when he declaimed against the evils of protection. 3 When Rutherfurd spoke he argued that, though some- thing might still be said in favour of the fixed duty, there was no defence for the sliding scale ; because, if there was a sliding scale the foreign grower could never safely grow corn for the British market, whereas, with the harbours open for free imports, or even with a fixed duty, he could calculate the supply needed for this country. But the pressing question, of which all were thinking, was whether the Government would open the harbours, so that the people might have sufficient food. " After all the anxiety which prevails," he said, " we are only told that the Cabinet deliberates. The Cabinet deliberates ! and the ports of the 1 Lord John's letter appeared first in The Times of November 27, and was printed in the Scotsman of the 29th. 2 John Thomson Gordon, son of Rutherfurd 's eldest sister Margaret, wife of John Gordon, F.R.S.E. He was afterwards Sheriff of Midlothian. 3 The feeling against the corn laws had lately been stronger in Scot- land than during the general election of 1841. " The free trade agitation, we rejoice to see, is again rising into vigour and activity," the Scotsman said the day before Lord John's letter was published in The Times. Conser- vatives, as well as Liberals, had asked the Lord Provost to call the Edin- burgh meeting, at which a letter from Chalmers was read, in which he said he was for repeal," " though not so sanguine as many of a great and permanent good to result from the abolition of the corn laws." ANDREW RUTHERFURD 103 north are closed by ice. The Cabinet deliberates ! and your vessels have been twice allowed to cross the Atlantic, and return, without any power being given to secure a proper supply of food, or any attempt being made to prepare the markets of America for affording that supply out of their abundance. The Cabinet deliberates ! and months have been lost, during which no ships have gone to Odessa. The Cabinet deliberates ! and still no decision has been come to, although the Governments of Holland, Belgium, and Turkey have been carrying away the grain stored in our bonded warehouses, which the sliding scale will not allow the people of this country to touch. The Cabinet deliberates ! and scarcity, if not famine, is at your gates." It may be imagined how this way of describing the situation appealed to men in whose eyes the worst fault of the Minis- ters was that they were doing nothing to meet the distress which threatened the country. " The speeches," said the Scotsman, "especially those of Mr. Macaulay and Mr. Ruther- furd, told with immense effect, and were cheered to the echo. Edinburgh, though rather tardy, has done its duty to the cause of corn law reform in excellent style." The long-drawn battle came to an end on the 26th of June, 1846, when on the same evening, the Lords passed the bill for the gradual repeal of the corn laws, and a coalition of Protectionists and Liberals in the House of Commons threw out the Irish coercion bill, and with it the Govern- ment of Sir Robert Peel. There must have been Conservatives in Scotland who saw with grim satisfaction the fall of an adminis- tration which had been put in office by Conservative votes to maintain protection, and had, by the help of Liberal votes, carried a free trade measure ; but in the Parliament House those who had gone out seem to ' have felt only sorrow that those who had come in were again in possession of the loaves and fishes, and likely, owing to the disruption of the Conservative party, to have the disposal of them for many a long year. Lord Justice Clerk Hope pours out his lamentations in a letter to Sir James 104 THE LORD ADVOCATES OF SCOTLAND Graham. There is DO one in Lord John Russell's Govern- ment who will Inspire confidence in Scotland. i; The narrow party feeling of the original Edinburgh Whigs " will decide everything : and everytiiing will go wrong, as everything went wrong after the Reform Act till 1841, when Sir Robert Peel came in. with Sir James Graham at the Home Office to put everything right. The loaves and fishes were distributed ; and. with one exception, the Scottish Members who received appointments were re-elected without opposition. Rutherfurd. again Lord Advocate, went down to Leith. congratulated the electors on the corn law victory, defended his vote for the Maynooth grant, received a unaiiinious vote of confidence, and was returned on the 9th of July. Two days later, Mr Fox Maule. now Secretary at War. was elected for Perth. 1 Mr. Gibson Craig, a Lord of the Treasury, was at once returned for Edinburgh ; and in Kirkcudbrightshire there was no opposition to Mr. Maitland. the Solicitor-General for Scotland.- But against Macaulay. who became Pay- master of the Forces, the movement which came to a head next year had already begun. A plot, the springs of which lay hidden in the local politics of Edinburgh, had been secretly hatched some months before, by a conclave who decided to try their strength by attacking Macaulay's seat. Their ostensible purpose was M to secure the return to Parliament of Members of sound Protestant and evangelical character." 3 This was enough for many well-meaning people, in whose eyes the grant to Maynooth was a national sin. Macaulay's vote for an inquiry into the Claim of Rights ; his efforts for the abolition of the test ; his declar- 1 Ear! Grey Secretary ior War. It was when Mr. Fox Maule (then Lord Panrnure) succeeded the Duke of Newcastle at the War Office, in 1S55, that the distinction between the Secretaries M for " and ;, at " War was abolished. 2 Thomas Maitland, afterwards Lord Dundrennan, had been Solicitor- General in 1840-41, and Member for Kirkcudbrightshire since August, 1845. He went on the bench in 1850, and died next year. 5 Memorandum of a Private Meeting held on 11th March, 1846. — Cale- donian Mercury, July 13, 1846. ANDREW RUTHERFURD 105 tion to the Commons that Carstairs, if he rose from the dead, would tell them that the Church of Chalmers and Brewster was the Church of Scotland as it existed at the Union ; all these things, which might have been counted unto him for righteousness, were forgotten. Sir Culling Eardley Smith was brought down to win votes by assuring the electors that if he had been their Member, he would never have voted money for the Son of Perdition and Babylon of Iniquity. So the lists were set, and there was a week of most unpleasant turmoil. " The struggle," the Witness said, " is exciting the deepest interest, and, as the beginning of a decided movement on the part of Christians to send men of avowed Christian character to Parliament, may lead to great results." 1 The result on this occasion was a majority of nearly one thousand for Macaulay, whose opponents had to endure, for twelve months longer, the indignity of being represented in Parliament by a famous orator and man of letters, whose rising filled the benches from which they had endeavoured to exclude him. When the House of Commons met again in January (1847), the Lord Advocate said, in answer to a question by Mr. Joseph Hume, that he purposed to bring in several measures for Scotland, especially bills dealing with the law of real property. 2 Changes in the antiquated laws of Scotland relating to landed property and its incidents had been expected for some time. Lord Advocate McNeill had carried two statutes which began what Cockburn called " putting commonsense into our deeds " 3 ; and now Rutherfurd in- tended to go further. The owners of land in Scotland were 1 The Witness, July 11, 1846. 2 Hansard, lxxxix. 210. Mr. Hume, who was defeated at Leeds during the general election of 1841, had been returned, at a by-election in the following year, for the Montrose district, which he continued to represent till his death in 1855. 3 8 & 9 Vict. c. 31, which amended the law for dealing with deeds by which lands were pledged for debt ; and 8 & 9 Vict. c. 35, which simplified the procedure by which land was acquired, and also diminished the expense. io6 THE LORD ADVOCATES OF SCOTLAND hampered at every turn, in dealing with their possessions, by the cumbrous system which had been handed down from former days. After a long period of depression property in land was becoming more valuable. The shock caused by the sudden transition from the high prices of farm produce during the great war, to the stagnation caused by the peace, had pressed heavily on the landed interest. Under the stimulus of high prices improvements had been pushed forward at too rapid a pace. Landlords had incurred heavy expenditure of capital in reclaiming waste lands, and tenants had entered into corresponding engagements. This ended in bringing loss upon both ; and it was long before the pressure ceased to be felt. Nevertheless, farming in Scot- land had, thanks to the enterprise of landowners, and to the intelligence, thrift and skill of their tenants, reached a wonderfully high level in spite of all obstacles. But when- ever the landowner wished to use his property as a source of credit, or to realize it in the market, he met with delay, difficulty, and expense, caused by the laws under which a title to the possession of land had to be made good ; and the procedure by which an heir, succeeding either under the law of primogeniture or by will, obtained his inheritance, was loaded with unnecessary and costly formalities. Over and above all this, there was the system of entails, which had laid its fetters on the free use of land over a large part of Scotland. Rutherfurd proposed to simplify the law relating to the transfer of land, whether by succession, by sale, or by pledge for the purpose of raising money ; and he was, in addition, considering the best means, in the interests of landlords, tenants, and labourers, for relieving estates held under deeds of entail. This question of the entailed estates required careful handling. Though the law of England abhorred perpetuities, they had long since taken deep root in Scotland ; and of all human weaknesses, none was more natural, or less deserving of blame, than the weakness of clinging to the acres and the roof tree, and trying to leave them, for all time coming, in the possession of kinsfolk. Whether it was a great estate, ANDREW RUTHERFURD 107 or a mere croft, a castle surrounded by pleasure grounds, or a thatched cottage in a kailyard, it was all the same. Every Scotsman would have liked to feel sure that his home was to be the home of his descendants. The owners of small houses and mere patches of land sometimes entailed them ; but this sentiment was naturally strongest amongst families owning extensive domains and fine mansions. The possession of property in land was associated in the old families with memories and traditions of the past, and amongst those who had recently acquired wealth with hopes and plans for the future ; and in either case it gave a sense of security to the individual, and, by peopling the country with a class which, whether wealthy or poor, shrank in- stinctively from sudden and violent changes, was a source of stability in the social conditions of Scotland, which was increased by the kindly relations which generally existed between the landowners and their tenants. But the Scottish Parliament had gone too far in its zeal to assist those who possessed estates to tie them up. There were entails before 1685 ; but in that 3~ear, when many of the landowners of Scotland, at the crisis of the Stuart tyranny, knew that charges of treason might at any moment be brought against them, to be followed by attain- der and the loss of their estates, the Scottish Parliament passed a statute under which estates might be entailed to perpetuity, and which contained provisions ingeniously devised for the purpose of preserving from extinction the families of those who might fall under the displeasure of the Crown. 1 Meant as a protection against forfeitures for political offences, this statute became, as deeds of entai multiplied, a cause of serious evils in private life. The character of many of these deeds is well known. The heir of entail in possession of the estate could not grant leases for 1 Act concerning Tailzies, May 27, 1685. In 1709, when the Treason Law of Scotland was assimilated to that of England, and the Scottish entails became subject to the English law ot forfeit are, an exception was made in favour of the issue of those heirs of entail who were married before July 1, 1709, when the new law came into force. Act for Improving the Union of the Two Kingdoms, 7 Anne o. 21. io8 THE LORD ADVOCATES OF SCOTLAND a period longer than his own life, or, in some cases, for more than two or three years. He could not settle a jointure on his wife, or make provision for his younger children. He could not exchange land with his neighbour. He could not sell an acre of ground. He could not borrow, even to make the most useful improvements. Sometimes he could not cut timber or quarry stone. These and a host of other fetters might bind the heir of entail, and ruin the estate of which he was nominally the possessor, but in reality only the life-renter. The preservation of landed estates, and of the families which had long possessed them, was obviously desirable in the interests of the whole country ; but the effect of the entails was to tie the hands of many families so fast that their estates, instead of being a source of private happiness or public benefit, became mere burdens and contributed nothing to the general welfare of the Scottish people, but rather the reverse. When the country was settling down after the Jacobite rising of 1 745 a movement began for relaxing the restrictions which hampered so many landowners. A network of entails was by this time gradually spreading over Scotland. Adam Smith, writing about the year 1775, estimated that more than one-fifth, perhaps one-third, of the land was under strict entail. 1 The system had already been con- demned by the Scottish bar. 2 An Act of Parliament was passed, which gave the heirs of entail power to set apart the rents for six years after their deaths to pay for improvements, and to grant leases of considerable length. 3 Other statutes followed, such as the Aberdeen Act of 1824, 4 and the Rose- bery Act of 1S36. 5 In the year 1846 it was computed that one-half of the whole landed property in Scotland was entailed. Committees examined the subject, and made reports. All over the country* agriculturalists were com- 1 Wealth of Nations (Ed. 182S), ii. 183. * Minutes of the Faculty of Advocates, August 4, 1TG4. 3 The Montgomery Act, 1770 (Entail Improvement Act), 10 Geo. III. c. 51. 4 The Entail Provisions Act, 5 Geo. IV. c. 87. i The Entail Powers Act, 5 & 7 Will. IV. c. 42. ANDREW RUTHERFURD 109 plaining ; and further legislation was called for by a public meeting of landowners holding entailed estates. Possessing a wide knowledge of the history and working of the land laws, and also that rarest of gifts, the power of foreseeing how, in actual practice, new laws are likely to affect a variety of conflicting interests, Rutherfurd avoided the pitfalls into which eager reformers in their haste are apt to stumble. He had long studied this whole question of the land in the spirit of the wise hints given by Dalrymple : " Revolutions in the laws of land property are ever attended with important consequences ; and therefore, before they are made, it behoves men well to look forward, and examine whether these consequences will be good, as they wish, or may be bad, as they may not foresee ; and in so doing, their thoughts must not be narrowed to one object, nor superficial, nor implicitly taken up, but must comprehend a variety of relations, must be deep, and must be weighed with independence of thought." 1 Rejecting any super- ficial and hasty projects, Rutherford went cautiously to work and, having thought out a series of practical reforms, which would introduce certain useful changes into the complex machinery which governed the completion of the titles to an estate, and the creation and transfer of burdens upon land, he brought in five bills which formed a compact code of that branch of the law. These bills had been so carefully prepared that they all passed speedily through both Houses, and received the royal assent upon the 25th of June, 1847. His bill to amend the law of entail was not yet ready ; and before he could produce it the second Parliament of Queen Victoria was dissolved. 2 As usual, no one ventured to take the field against Ruther- furd, whose constituents elected him by a show of hands on the 30th of July. On the whole the elections in Scotland were uneventful except at Edinburgh, where Macaulay and 1 Considerations on the Polity of Entails in a Xation, 1765. 2 July 25, 1847. The Rutherfurd Acts of 1847 are 10 & 11 Vict, pc 47, 48, 49, 50, and 51. THE LORD ADVOCATES OF SCOTLAND Mr. Gibson Craig, the Whig candidates, were opposed by Mr. Blackburn, as a Conservative, and by Mr. Charles Cowan, who stood as a Radical, and was brought forward by the party which had run Sir Culling Eardley Smith twelve months before. After that contest the editor of The Witness had said that many who had voted for Macaulay, rather than oppose a member of the Government who was standing for re-election on taking office, would vote for Sir Culling at a general election, being " persuaded that, on the broad grounds of Christian principle and Protestant truth, Sir Culling Smith ought to be the representative of Edinburgh/ 5 1 But the shrewder members of this party knew that a citizen of Edinburgh would be a far stronger candi- date than any stranger ; and they proposed Mr. Cowan on the plea that <: Christians ought to send Christians to represent them." They received, too, a re-inforcement from another camp. The distillers had for some time been orended with the Government for lowering the customs duty on rum, and efusing them protection against Colonial spirits ; and now Macaulay gave additional ofTence by a curt refusal to vote for a reduction of the excise duty on whisky. This turned against him the spirit merchants and their best cus- tomers, many of whom, though Conservatives, split their votes between Mr. Blackburn and Mr. Cowan, in order to secure the defeat of Macaulay. This combination put Mr. Cowan at the head of the poll, with Mr. Gibson Craig second. Mac- aulay, however, though he lost his seat, was several hundred votes above the Conservative candidate, who suffered from the fact that so many of his supporters, instead of plumping for him, gave their second votes to the Radicals. If the contemporary descriptions of what happened are not too highly coloured, the scene at the west side of the Church of St. Giles, where the hustings stood that year, when, in the name of Christian principle, Protestant truth, and cheap whisky, Macaulay was so cruelly treated, was a melancholy 1 The Witness, July 16, 1846. ANDREW RUTHERFURD in exhibition of which fair-minded men must have been thoroughly ashamed. When the new Parliament met, on the 18th of November, the Whigs and Radicals who made up the Liberal party, and the Protectionists and Free Traders into whom the Conservatives were now divided, were so evenly balanced that Lord John Russell remained in power only by favour of the Conservatives who followed Sir Robert Peel ; but the Government's strength in Scotland had been somewhat increased by the elections, and the Lord Advocate could also depend on the bulk of the Conservatives to help him with his entail bill, which was nearly ready at the beginning of the session, and which Sir George Grey, the Home Secretary, announced would be brought in at an early date. 1 Impetuous reformers, who could never hear the wisdom of an old custom called in question without immediately wishing to abolish it oil-hand, had been agitating for a law to make entails illegal in future, and had even proposed that all the entailed estates should be disentailed at one stroke. The first cause of entails — the desire to preserve a family from generation to generation — lay deep in human nature. But, as old Lord Karnes said, " Men will always be mending, and when a lawyer ventures to tamper with the laws of nature, he hazards much mischief ? ' ; and the original entail Act of the seventeenth century had done immense harm by the artificial help it gave to the natural forces which were always working in Scotland for the protection of pro- perty in land. 2 Nevertheless, though Parliament could, if it pleased, upset all the title deeds under which estates were 1 Ha7isard, xcv. 211. At the general election of 1847 the Scottish counties returned eighteen Conservatives and twelve Liberals ; the towns twenty-two Liberals and one Conservative — Lord Lincoln (after- wards the 5th Duke of Newcastle), who was elected for the Falkirk district as a " Liberal Conservative." The members for seven of the counties were also Liberal Conservatives, or " Peelites." In a letter to the Queen Lord John Russell describes the defeat of Macaulay as " disgraceful." Nothing like it, he thought, had occurred since the rejection of Mr. Burke by the city of Bristol in 1780. Letters of Queen Victoria, August 5, 1847. 1 More than 2,000 deeds of entail were registered in Scotland between 1685 and 1S4S. THE LORD ADVOCATES OF SCOTLAND held, and disinherit every heir in the country, Rutherfurd did not see in the abuses of the entail lav/ any reason for throwing a whole system of tenure into the melting pot. His object was, not to bring about a sudden revolution, but to facilitate the fair and legitimate use of land by the intro- duction of certain gradual changes, which might ultimately rid Scotland of what he called " an absurd and preposterous system, which had been the curse of the country for a hundred and sixty years." He used these words when, on the 24th of February, 1848, he explained his proposals, in moving for leave to bring in the bill. 1 He made it clear at once that he had resolved to protect the interests of heirs who had a reasonable expecta- tion of succeeding to entailed estates. But those whose interests were shadowy and unsubstantial, those who could scarcely expect to succeed, were in a different position ; and Parliament, he said, must be prepared to allow them to be cut off, if anything like an adequate remedy for the evils caused by entailing was to be supplied. It is now more than sixty years since Lord Advocate Rutherfurd brought in his bill, and the country has been long familiar with the idea of breaking an entail ; but in those days it was a startling novelty. The statutes which had been passed to alleviate the effects of the Act of 1685, had all been framed on the assumption that the perpetuities created by deeds of entail could not be touched. Rutherfurd's bill, by giving the heir in possession power to disentail, in certain circum- stances, introduced a new element into the law. He did not attempt to alter the form of deeds of entail, or to make any change in the mode of maintaining perpetuities ; but, for the first time, power was given to break an entail. The distinction which he drew between old entails, created before the 1st of August, 1848, and new entails, created after that date ; the large power of disentailing given to an heir succeeding under a new entail ; and the provisions by which 1 Hansard, xcvi. 1307. ANDREW RUTHERFURD 113 an heir succeeding under an old entail might break it, on obtaining the consent of certain of his possible successors ; were all devised for the purpose of gradually diminishing the number of entailed estates, and of discouraging, for the future, the custom of attempting to create perpetuities. In addition to these provisions, now so well known in Scotland, but at that time regarded as bold and perhaps rash experiments, the bill made some further amendments of the law. It increased the power of the heir in possession to make provision for his family, and to sell portions of his estate for the payment of debt, and also gave him the right to grant long leases, with the same consents as those which would authorize him to disentail. The Rosebery Act had given the heir in possession power to make exchanges of land, and this power was now to be extended. As the law stood, the heir in possession could only charge on the estate three-fourths of any sum he had spent on the improvements permitted by the Montgomery Act. Rutherfurd proposed to make the sum a charge on the estate for twenty-five years, so as to enable a proprietor who wished to improve his property to go into the market, and raise the whole sum on the security of his land. 1 By the Act of 1685 a deed of entail must contain three cardinal prohibitions : a prohibi- tion against any alteration in the order of succession, a prohibition against any alienation of the estate from the heirs named in the deed, and a prohibition against burdening the estate with debt. Rutherfurd's bill provided that a deed of entail which was defective in any one of these essential prohibitions was to be held defective in all, a provision destined to set free many Scottish estates. The bill, having passed its first and second readings with- 1 Lord Advocate McNeill had put into the Clauses Consolidation (Scot- land) Act of 1845 a provision giving proprietors of entailed estates power to use money received as compensation from railway companies in paying off charges for improvements made under the Montgomery Act, or for provisions lor widows and children under the Aberdeen Act. In the opinion of Rutherfurd, the result of the Montgomery and Aberdeen Acts was that most entailed estates in Scotland were encumbered a short time after they passed. I H4 THE LORD ADVOCATES OF SCOTLAND out debate, was sent to a select committee 1 ; and, after the report had been received, it went smoothly through the House of Commons till the 8th of June, when it was read a third time, and passed. 2 , Next day it was read a first time in the House of Lords without debate. But when Lord Campbell moved the second reading (June 29) the Duke of Buccleuch said that, though he would not divide the House against the bill, " he must state his opinion that there had never been brought under their Lordships' consideration any measure of so sweeping a character as this, affecting the possession and inheritance of property in Scotland.' 5 He admitted that entails were unpopular in Scotland, but thought they were beneficial, because they had " protected property which would otherwise have been split into small portions." The Duke of Argyll, who was equally hostile, said that the clamour against the law of entail " had been raised by those who knew little or nothing of its working." 3 Other opponents were Lord Haddington, who said, at a later stage, 4 that the bill " trampled on vested rights," and Lord Brougham, who declared that neither his recollection nor his reading afforded him an example of so vast a change 1 Some petitions were presented in favour of the bill, and one against it from the magistrates of St. Monance in Fifeshire, who prayed " that another bill may be brought in to abolish entails already existing, and to declare that future entails, in whatever form, shall be illegal ; or at all events to declare that past, present, and future entails shall have no effect in protecting property from the lawful debts of the proprietors, which the present Bill has left entirely untouched, and which they (the petitioners) consider is one of the cliief boons to the community for which a Bill of that description should provide." 2 Hansard, xcix. 502. The Scottish Members had to take tliis bill in the middle of the night. Rutherfurd rose to make his first explanation at midnight (February 24), the report from the select Committee was presented at 12.30 a.m. (May 25), when the whole House went at once into Committee, ran through it all (with two divisions) and rose at 1.15 ; and the report stage, which passed without debate, came on at midnight (June 2). There was neither debate nor division on the third reading. * Hansard, xcix. 1306. 4 In Committee, July 17. Hansard t c. 507. ANDREW RUTHERFURD ii5 in the law of property. But the general feeling of the House was so strong in favour of the bill that it was allowed to pass into law. Four peers, however, entered a solemn protest against it : " Because to sanction this very great change in the law of succession to landed property in Scot- land, and this extensive invasion of the rights of parties having vested interests, without any adequate necessity, will hereafter form a dangerous precedent, and is inconsistent with the character this House has ever maintained as the guardian of such rights and interests." 1 When Parliament rose, on the 5th of September, the Queen's Speech contained a paragraph expressing satis- faction that the Entail Bill had passed. In Scotland it was well received. There we e, of course, some misgivings. So many estates, it was predicted, would be sold that land would be of little value ; ancient Scottish families would die out ; their homes would fall into the hands of rich and vulgar upstarts from the other side of the Tweed ; and the old charm and the old traditions of country life would vanish. The prevailing opinion, however, was that a great boon had been con:e-:ed on the agricultural interest, and on the possessors of entailed estates, many of whom were in danger of seeing their lands fall into the condition of those pro- perties in Ireland to relieve which the Encumbered Estates Act had to be passed next year. " The new remedy," said Cockburn, *' ; whether it be good or bad, is entirely Ruther- furd's. I am not aware that any other Lord Advocate has ever entitled his name to be so exclusively connected with so important a measure." 2 Next year Rutherfurd brought in a Public Health Bill, the fate of which, when traced through Hansard and the Journals, shows how difficult it sometimes was to steer a Scottish measure through the House of Commons. Very late on the night of the 7th of May, the Lord Advocate moves the second reading. Mr. Forbes Mackenzie, Member 1 Lords' Journals, July 20, 1848. The Rutherfurd Entail Act is 11 & 12 Vict. c. 36. 2 Journal, ii. 222. n6 THE LORD ADVOCATES OF SCOTLAND for Peeblesshire, at once moves the adjournment of the debate. The Lord Advocate opposes this. So do Mr. Gibson Craig and Mr. Charles Cowan ; their constituents, they say, are interested in the bill. Sir George Grey supports the Lord Advocate. The House divides, and the motion for the adjournment is defeated. Mr. Charteris 1 rises. There are, he says, nine bills for Scotland on the table, and the people of Scotland are alarmed at " the legislative fecundity of the Lord Advocate." He moves the adjournment. Though there is a Government majority present it is useless to go on ; the Lord Advocate submits ; and they rise long after midnight. Three days pass ; and at the end of a long sitting, the Lord Advocate again moves the second reading. Viscount Drumlanrig 2 says that he objects to smuggling important Scottish measures through at such a late hour. He moves the adjournment. At last the bill is read a second time ; and, on the 1st of June, the Lord Advocate moves to send it to a select committee. Mr. Scott 3 wishes to complain of the way in which Scottish bills are " shuffled upstairs." He knows it is extremely con- venient for the English Members, who have everything their own way in the House ; but he would very much like to know why Irish bills are not treated in the same way as those for Scotland are. Then the bill is sent to a select committee ; and after that it disappears, and is heard of no more. The position of parties in the House of Commons was largely the reason why so little time was found for Scottish business. Though the Peelites had lost almost half their strength at the general election of 1847, they were suffi- ciently numerous to give Lord John a substantial majority for free trade. On the question of keeping him in office they were not, however, all of one mind. Peel himself and Sir James 1 The Hon. F. Charteris, afterwards Lord Elcho, who sat for Hadding- tonshire from 1847 to 1883, when he succeeded to the Earldom of Wemyss. 2 M.P. for Dumfriesshire from 1847 to 1856, when he became Marquess of Queensberry. 3 The Hon. F. Scott, M.P. for Berwickshire, 1847-1857. ANDREW RUTHERFURD 117 Graham were bent on supporting the Government so long as there was any danger of a return to protection. But other Conservative free traders thought that a death blow would be given to the hopes of the protectionist party in the country if there was a change of Ministry ; for they believed that the protectionist leaders, however loudly they might call out against free trade when in opposition, would quietly accept it if they were themselves in office. The situation of the Ministers, thus dependent on the Peel- ite vote, was therefore precarious ; and, with no solid party majority behind them, they had to allot the work of the House in a way which left very little time for purely Scottish business. If, for instance, an important Public Health Bill for England had been brought in, a Cabinet Minister would probably have been in charge of it. The Govern- ment would have had to consider the convenience of four hundred and sixty-nine English members ; and, instead of being hurried through in the small hours of the night, it would have been discussed during several afternoon and evening sittings. The Irish Members had also to be con- ciliated ; for they were one hundred and five strong, and though O'Connell was now off the scene, some other voice might say that if the Parliament at Westminster could not find time for Irish business, a Parliament in Dublin could, and so renew the agitation for repeal. But there were only fifty-three Members for Scotland ; and of the: e more than one-half could be depended upon to give no trouble. Therefore the affairs of Scotland were of very little interest to the Cabinet. The Lord Advocate was virtually Minister for Scotland ; and Rutherfurd, who had to bear on his own shoulders the whole weight of Scottish business, about which most other members of the Government knew little and cared less, would never have carried through so many useful measures if it had not been for the extraordinary trouble he took in preparing them. His Conveyancing Acts of 1847, and the Entail Act, were conspicuous examples of his thoroughness ; n8 THE LORD ADVOCATES OF SCOTLAND and it was the same with all his work in Parliament. Know- ing that hasty legislation must be slipshoi, he would never move till he saw his way clearly. If the whole of Scotland was clamouring for some reform, he would keep the whole of Scotland waiting till he was quite sure how that reform could be best accomplished. Before bringing in a measure, he pondered over it in his study, and seldom spoke about it in public. He thought everything out beforehand, anticipated objections instead of waiting till they were sprung upon him in the House of Commons, consulted those whose interests might be touched, and, like Peel, made it a a point of honour to take endless pains in drafting his bills so that they might pass with few amendments. In the session of 1850 there was a typical instance of how these methods worked. On the 1st of March he brought in an elaborate bill for regulating the police in towns and populous places in Scotland — a very much needed reform — full of minute regulations for improving the system of paving, cleaning, draining, and lighting. It contained nearly four hundred sections, and affected the local interests of many large and small towns. But Rutherfurd had drafted it with such care that it went through with scarcely any debate or amendment ; and Mr. Hume, " one of the fairest men in the House of Commons," as Lord Robert Grosvenor once called him, but the most severe critic who sat there, said he wished every bill which came before the House was equally well considered. " The Lord Advocate," he said, " by the great attention he has paid to the suggestions offered him, has saved a vast deal of time to the House, and also completed a very satisfactory measure." 1 This bill 2 passed its third reading in the House of Lords on the 4th of July. But the end of Rutherfurd's career in Parliament had already come. On the 16th of May he answered a curious question put to him by Sir Frederick Thesiger during one of the many debates on Mr. Stuart Wortley's Man iages Bill ; and that was the last time he rose 1 Hansard, ex. 1278. 2 13 & 14 Vict. c. 33. ANDREW RUTHERFURD 119 in the House of Commons. 1 He had now held for some years what Dean Boyle calls " A unique position as Lord Advocate and Member of Parliament." His occupations and interests, however, were not confined to law and politics. He had become known in London as something more than a mere lawyer and party man. In 1847 Grillion's Club resolved to elect two new members every year ; and next year Rutherfurd was admitted to that attractive society, in the list of whose members he is described as " eminently distinguished for his learning and literary attainments." He was a member of the Royal Commission on the British Museum, where he had a congenial friend in Panizzi, with whom he had been on very intimate terms for some years before the Commission was appointed. He was never, of course, a man of letters, as Jeffrey was ; but he loved to surround himself with books, and in his library rare editions of the classics, Baskervilles, all the publications of such clubs as the Abbotsford, the Maitland, and the Bannatyne, a remarkably complete set of Defoe's works, and a quantity of general literature found a place in company with Stair's Institutes, the Law Reports, and the public general statutes. In the midst of all his labours he found time for a great deal of miscellaneous reading. During the winter of 1848, when he was busy with his Entail Bill, the first two volumes of Macaulay's History were published. Rutherfurd devoured every word of them eagerly, and was " overwhelmed with admiration." He gloried in the vindication of the Whigs, and probably wrote one of the numerous letters of congratu- lation which Macaulay received when the first portion of his task was completed. So busy a man had to indulge these tastes at odd moments. Junior counsel and law agents entering his study for consul- 1 Hansard, cxi. 146. Sir Frederick Thesiger's question was whether, by the law of Scotland, an illegitimate son could marry his father's widow, and also his own sister ! The Law Review had asserted this. "If so," it said, " the Scotch, who are said to evince such a horror at the bare idea of rendering it lawful for them to marry their deceased wives' sisters, are indeed straining at a gnat while they complacently swallow a camel, and a dromedary or two into the bargain." 120 THE LORD ADVOCATES OF SCOTLAND tation often noticed that he laid aside some Greek or Italian book which he had been reading. 1 His knowledge of Greek was quite remarkable ; and he would often amuse his friends by quoting long passages from the most difficult authors. But Italian was his favourite study. Dean Boyle was told by Sir James Lacaita that Mr. Gladstone and Rutherfurd were " the only two Englishmen he had ever known who could conquer the difficulty of obsolete Italian dialects." 2 The library at Lauriston was decorated with the portraits of nine famous Italians which had been copied for him from theoriginals — Petrarch, Boccaccio, Poliziano, Michael Angelo, Leonardo da Vinci, Dante, Galileo, Machiavelli, and Raphael ; and on the bookshelves were many Italian works, among which there were no fewer than nine editions of the Decameron, from 1516 to Pickering's edition of 1826. In collecting these he had the useful help of Panizzi, with whom he must have had many talks on Italian literature, and on the prospects of Italian liberty, for which Panizzi was always working in concert with his English friends. 3 Like many of those who delight in possessing rare books, Rutherfurd seems to have been fond of collecting odd pieces of sculpture, marble busts of Greek gods and goddesses, old silver, valuable china, and curios, such as a rare bronze bust of Napoleon, one of a few copies made for the French Government, to obtain which he sent all the way to Paris. He also made a collection of paintings by Scottish and English artists, and of copies from the Italian, Dutch, and Flemish schools. One at least of his paintings was of value — the 1 His nephew, the late Lord Rutherfurd Clark, told me this. 2 " The late Lord Arthur Russell, many years after Lord Rutherfurd 's death, gave me, in letters which I still possess, much curious information as to some out of the way Italian books which Rutherfurd was fond of reading and quoting." — Reminiscences of Dean Boyle, p. 25. 3 Sir Anthony Panizzi was appointed Keeper of the printed books in 1837, two years before Rutherfurd entered Parliament. In the catalogue of Rutherfurd 's Library in the British Museum there is pasted a letter from Mr. Thomas Nesbit of Edinburgh (the auctioneer who sold the collection), saying that he sends it as a memorial of " your friend Lord Rutherfurd." They corresponded for years on public and private matters, and Panizzi 's last letter was written when Rutherfurd was on his deathbed. ANDREW RUTHERFURD 121 portrait by Rubens of Sir Theodore May erne, which he bought in the Spring of 1847 at Lord Bessborough's sale. 1 But for these pursuits his busy life had left him very scanty leisure ; and hard work was wearing him down. An enormous practice at the bar, severe application to offi- cial work, constant journeyings to and from London, late hours in the House of Commons, and the vexations from which no one who has a large amount of patronage in his hands can escape, had been gradually undermining his strength. At the beginning of the year 1851, he was taken seriously ill ; and when Parliament met in February, he was not in his place. On the 30th of March, Lord Moncreiff died ; and the vacant judgeship was taken by Rutherfurd, who made his appearance on the bench on the 23rd of May. Next year he suffered from the same ill fortune which had kept him out of the Lord President's chair in 1841. 2 In February (1852) the Russell Government went out, and was succeeded by that of Lord Derby, which re- mained in office for less than one year. Three months after the Conservatives came in, Lord President Boyle retired, and McNeill, who a year before had resigned his seat in Parliament for a judgeship, was promoted to be head of the court. If the Whig administration had lasted for just three months longer, Rutherfurd would have been made Lord President. It was, of course, a disappointment ; but he bore it well, "as a man of sense and spirit might," says Cockburn. Before and after he went on the bench Rutherfurd, when not in London, lived during the winter in Edinburgh, at 1 Sir Theodore Turquet de Mayerne was physician to James VI and Charles I and II. Walpole mentions this painting, which he calls " cer- tainly one of the finest extant," among the works of Rubens known to have been executed in England (Anecdotes of Painting, i. 309). The chief portraits of Rutherfurd may be mentioned. There is one by Watson Gordon in the Town Hall at Leith ; another by the same artist in the Scottish National Gallery ; and a third, by Colvin Smith, is in the Parlia- ment House, where there is also a bust by Brodie. The portrait in the Parliament House was lent by Lord Dalhousie (the Fox Maule of the disruption days) to the Faculty of Advocates. 2 Supra, p. 83. 122 THE LORD ADVOCATES OF SCOTLAND 9, St. Colme Street, and in summer at Lauriston Castle. Though never a gourmet like Lord Murray, he kept an excellent cellar, and liked having interesting people about him. " He told stories admirably, and, without any osten- tation, gave you the results of reading, and his really wonder- ful scholarship," says Dean Boyle, who describes a luncheon party at Rutherfurd's, where he met Thackeray, who was lecturing in Scotland. " I have never seen Thackeray so much at his ease," the Dean says ; and their talk must have been worth hearing, for the guest was on familiar ground with Dry den, and Marlborough, and Pope, whence they went on to criticisms of Carlyle, Dickens, and Tennyson. Then there was the society of the Whig veterans, men older than Rutherfurd but with whom he lived on easy terms for many years. Lauriston was not far from Craigcrook, where Jeffrey lived, and Cockburn sometimes came from Bonaly, and Moncreiff from Edinburgh, with his gruff voice and formal, old-world courtesy of manner, and Murray, turning very fat as the years rolled on, but still as genial and shrewd as ever. They had no Boswell among them taking notes ; but their conversation could not flag, even if it never went beyond old stories and local doings — the nights, so very long ago for some of them, under the wax candles at the Speculative, some joke of Sydney Smith's, the Pantheon meeting, the times of the Reform Bill. We can imagine the older men fighting their battles over again in the dining-room at Lauriston, on a summer evening, while their host saw to it that the claret and the port, to which Moncreiff and Cockburn did full justice, went round, and the ladies waited with early Victorian patience in the drawing-room till the sun went down beyond the windings of the Forth, — (tkiowvto tc 7ra in t\e Music Hail, December 24, I860. * Supra, p. 227. JAMES MOXCREIFF 235 uproar was such that not a word he said could be heard. An attempt was made to shout down the Lord Advocate in the same way ; but most of the audience wished to hear him. There were calls for silence from all parts of the hall ; the ringleaders in front of the platform became more orderly ; and. though frequently interrupted, his powerful voice rose above the din, and he was able to finish his speech. Cm the nomination day ^July 10*. there was another most unpleasant and even more disgraceful scene. Those who sat with Mr. McLaren and Mr. Miller men of most respectable poaition, but they broke in upon the speeches of the other side with hooting and ill-bred personalities. The vulgar rudeness of one well-known citizen caused great surprise. Three days later came the election : and the result was that, though the Conservative and Free Church votes were given to the sitting Members, Mr. McLaren was returned at the head of the poll by a majority of 206 above the Lord Advocate. Mr. Miller came last ; but he was only 74 votes below Air. Black. Over the rest of Scotland the counties returned fewer Conservatives than at any general election since : 1 all the towns elected Liberals. 1" _ :he United Kingdom as a whole, the elections were a crowning triumph for Lord Palmerston. " The majority was his own, and his popu- larity was greater than ever, both with the newly elected Members, and in the country at large." 1 But he was not to meet another Parliament. The ranks had been thinning rapidly. Within the last few years Lord CampbeJL Sir James Graham. Sidney Herbert.- Sir George Lewis, the Duke of Newcastle, and others who have been mentioned in these pages, had all died : and in the autumn after his last great victory Lord Palmerston himself, who had nearly reached his eighty- second year, joined the permanent majority (October 18, 1865). The Russell administration was then formed, with Mr. 236 THE LORD ADVOCATES OF SCOTLAND Gladstone as leader in the House of Commons ; and in the beginning of February (1866) the new Parliament met. 1 If by some miracle Prince Talleyrand had lived to hear that Lord Palmerston was dead, he would not have re- peated his comment on the death at St. Helena. Aged though he was, the death of Lord Palmerston was an event. The rising generation of to-day, to whom he must be little more than a name, cannot of course realize how large a space he filled in the national life of fifty years ago ; but any one who is old enough to look back so far will recall the curious feeling as of a personal loss with which he heard that Lord Palmerston was gone. " We must now be pre- pared," Lord Shaftesbury wrote, " for vast and irrevocable changes. Palmerston was the great pillar appointed, under God's Providence, to which all the vessels of the State were linked, and so the fleet was held to its moorings. It is now cast down ; the ships are set afloat without rudder or compass, and will drift in every direction over the broad sea." And, surely enough, the country was immediately plunged into that long period of vast changes, brought about by both parties, which began with household suffrage and has not ended yet. Since the collapse of Chartism both parties had nibbled at the franchise question ; but little or nothing had been heard of it during Lord Palmerston's last administration. Now, however, with Earl Russell and Mr. Gladstone at the head of affairs, " Parliamentary Reform " came to the front ; and in March (1866) the bill for England was brought 1 Lord John had been raised to the peerage as Earl Russell in 1861. Lord Clarendon succeeded him at the Foreign Office in 1865. During the session of 1 866 there was a debate (March 2) on a motion for an address to the Queen asking her to use her influence with foreign Powers in favour of making private property free from capture at sea in time of war. Mr. Moncreiff, who had already (in 1862, Hansard, clxv. 1603) opposed a similar motion, said, speaking for the Government, " We can never rob war of its terrors, nor enable persons to pursue their peaceful avocations in the midst of war. If war is not terrible, it will not effect its purpose " (Hansard, clxxxi. 1443). This speech involved him in a controversy which will be found in Corre- spondence between the Sheffield Foreign Affairs Committee and the Lord Advocate, on the part of France and Russia in the surrender by England of the Right of Search, 1866. JAMES MONCREIFF 237 in by Mr. Gladstone. It was read a second time at the end of April ; and on the 7th of May, in the midst of noise caused by Members leaving after a somewhat heated debate on the Redistribution of Seats bill, which Mr. Gladstone had introduced that afternoon, the Lord Advocate laid the reform bill for Scotland on the table. The small majority of five by which the second reading of the English bill had been carried was a foretaste of what was coming ; and on the 1 8th of J une the Waterloo of that campaign was fought, when the allied host of Conservatives and Adullamites carried, by a majority of eleven, the amendment which led to the resignation of the Government. In Scotland, from about the year 1848 till after the death of Lord Palmerston, there had been no very widespread cry for an extension of the franchise. One reason for this was the improved condition of the people, caused by the general prosperity of the country and the rise in the value of wages since the repeal of the corn laws and the other legislation of that period. Another reason was the unswerving support given by the electors in most Scottish constituencies to the Liberal party. The " non-electors " had seen, time after time, a majority of Liberals returned to Parliament, and had therefore no reason to complain that they were not represented. But this indifference came to an end in the summer of 1866. Mr. Lowe's speeches against the enfranchisement of the working men, and Mr. Bright's speeches in favour of it, had roused deep feelings of resent- ment and enthusiasm, which, after the defeat of the Liberal Government, found outlet in a popular agitation which was all the more impressive because, wholly unaccompanied by that violence which had so often alienated public sym- pathy from working-class movements, it was conducted by means of orderly processions and public meetings. At Edinburgh a large assemblage of working men de- manded a bill giving manhood suffrage ; and Mr. Moncreiff called a meeting to explain his own views (December 10, 1866). " There have always," he said, " been two parties in the Liberal ranks. There are the old Whigs, to whom 238 THE LORD ADVOCATES OF SCOTLAND I profess to belong. I have learned my Liberalism in the school of the old "Whigs — I have learned it in the school of the old Edinburgh Whigs, and I believe that the lessons I have there learned are sound." There was an advanced school, he went on, of which Mr. Joseph Hume and Mr. Henry Warburton were leaders in a former generation, and of which Mr. Bright and Mr. John Stuart Mill were now the leaders. The "Whigs, he said, attached more impor- tance to " the unseen, unfelt, traditionary power which mingles our political with our social constitution, than to the line and plummet of hard logic." The constitution was not, indeed, perfect ; but it was better than any other. He, therefore, advised union, and warned them against injuring the cause of reform by attempting to obtain man- hood suffrage. No one then imagined that the Conservative Ministers were about to make their great surrender, and produce a franchise bill more democratic than any which Lord Russell or Mr. Gladstone would have ventured to propose. Meanwhile a new Lord Advocate had been appointed, — Mr. George Patton, third son of James Patton of Glenalmond, Sheriff Clerk of Perthshire. 1 He was born in 1803, and after education at Perth, Trinity College, Cambridge, where he graduated B.A. in 1826, and the University of Edinburgh, passed to the Scottish bar in 1828. Having climbed into a fair practice, he joined the ranks of the seniors on the Con- servative side, and at last succeeded Mr. Mure as Solicitor- General in May, 1859. After the fall of the Derby adminis- tration, a few weeks later, he plodded on in the Parliament House till the year 1866, when he was advised to find a seat in the House of Commons. In July, 1865, the borough of Bridgwater in Somerset- shire had returned a Conservative, Mr. Henry Westropp, and a Liberal, Mr. Kinglake, the historian of the Crimean 1 Mr. Patton of Glenalmond had three sons, all of whom were bred to the law — James Murray, who succeeded him as Sheriff Clerk ; Thomas, a Writer to the Signet ; and George, the Lord Advocate. JAMES MONCREIFF 239 war. Mr. Westropp was unseated on petition ; and a depu- tation from Bridgwater went to London, where they had an interview in the lobby of the House of Commons with Mr, Patton, to whom they were introduced by Mr. Spofforth. a member of the legal firm of Baxter, Rose, & Norton. Mr. Spofforth was evidently afraid that if Mr. Patton, whom he afterwards described as "an oldish, thin man, and not in good health," went as a stranger to such a notoriously corrupt place as Bridgwater he might fall into dangerous hands. So he took him aside, and gave a word of timely warning. " If," he said, " you go down to Bridgwater, you must take some friend to protect you from importunity, and take care that you do not get into any scrape." Then he left the matter to be settled with the deputation. 1 Mr. Patton agreed to stand, and put all the arrangements for the election in the hands of two of his friends, Mr. Frederick Pitman of Edinburgh, and Mr. George Thompson, a member of the Scottish bar. It may be assumed that neither of them knew at that time what a Bridgwater election really meant. The election took place on the 7th of June (1866), the Liberal candidate being Mr. Walter Bagehot, editor of the Economist. At 12 o'clock on that day Mr. Bagehot was at the head of the poll, and Mr. Patton's chance seemed hope- less ; but a Mr. Tromp, a solicitor from London acting as a Conservative agent, heard that thirty electors were " bottled up " in an inn, and sent a message to one of Mr. Patton's Committee that if he had £300 he could poll thirty men. The money was sent ; the men voted ; and the election was won by a majority of seven. This was direct bribery ; but there had also been bribery on the Liberal side, and no petition could be presented against Mr. Patton's return. In July, when he was appointed Lord Advocate, he went down again to Bridgwater for re-election, believing that there would be no contest. He found, however, that he was to be opposed by Mr. Philip Vanderbyl, who had stood 1 Report of Commission on Corrupt Practices at Bridgwater ; Pari. Papers, 1870, xxx., Minutes of Evidence, October 1, 1869. 2 4 o THE LORD ADVOCATES OF SCOTLAND for Great Yarmouth at the last general election. On this occasion the weight of money was on the Liberal side, and the electors put Mr. Vanderbyl at the head of the poll by thirty-six votes on the 12th of July. Mr. Patton was Lord Advocate, without a seat in Parliament, for seven months after his defeat at Bridg- water ; but in February, 1867, when Lord President McNeill went to the House of Lords, he resigned, and became Lord Justice Clerk in the place of Mr. Inglis, who then succeeded McNeill. The new Lord Advocate was Mr. Edward Strathearn Gordon, who had^been Solicitor-General for Scotland since the change of Government in July, 1866. He was not in Parliament ; and Mr. W. E. Baxter, who had made the absence of Mr. Patton from the House of Commons the occasion for several questions as to the management of Scottish business, once more pressed for the appointment of a Secretary of State. The subject was discussed on the old lines. Mr. Duncan McLaren supported Mr. Baxter ; and Colonel Sykes, who called the absence of the Lord Ad- vocate an " intolerable nuisance," complained of the incon- venience to Scottish Members of " having to trot to the Lord Advocate's office in Spring Gardens if they have any question to ask." Nothing came of this debate ; and before the end of the year Mr. Gordon found a seat on the borders of Norfolk and Suffolk, where he was elected without opposition by the small constituency of Thetford on the 2nd of December, 1867. 1 The last Parliament elected under the Reform Act of 1832 rose on the 31st of July, 1868. The redistribution of seats which accompanied the franchise statutes of 1867 and 1868 gave seven additional Members to Scotland. Two of these were allotted to the Universities, Edinburgh and St. Andrews forming one constituency, and Glasgow 1 Mr. Gordon was Lord Advocate till after the general election of 1868, and again from 1874 to 1876. See Chapter viii. JAMES MONCREIFF 241 and Aberdeen another. 1 Mr. Moncreiff was chosen as the Liberal candidate for the latter. His position as one of the Members for Edinburgh had become intolerable. Mr. McLaren had brought in an annuity tax bill, which Mr. MoncreifT had opposed ; and it had been thrown out. 2 The feud between the Whigs and the Radicals was as violent as ever. Mr. Moncreiff felt himself bound in honour to stand by the compromise which he had carried through with the assent of the Church, and which the Voluntaries, though they now repudiated it, had been understood to accept. All this opened up a prospect of constant friction between the two Members for Edinburgh, if Mr. McLaren failed to bring in another Radical at the general election. Mr. Moncreiff was anxious not to divide the Liberal party in the city ; but the animosity against the Whigs, which Mr. Bright had fostered in the early forties, which had helped to defeat Macaulay, and which had grown in virulence of late years, made it certain that he had no alternative but to retire, unless he wished to make Edinburgh the scene of uproar and ruffianism at every election. Accordingly, on the 24th of June (1868), he told his committee that he would not stand again, and explained his reasons. " It has been humiliating to me," he said, " that in this, the great metropolis of Scotland, the cradle of Scottish art and science, the very cradle also of Liberal opinion, where our celebrated forefathers maintained, amid great discouragement, the flag of free opinion, until they saw it at last planted triumphantly — it was humiliating to me that we should split, and exhibit ourselves before the nation as raising great controversy, engaged in turmoil, keen though ignoble, about matters so purely local and, in my opinion, so almost infinitesimal as those on which this great schism has been founded." 3 1 The counties of Aberdeen, Ayr, and Lanark were divided into two divisions returning one Member each. Peeblesshire and Selkirkshire were united to return one Member. A new constituency, the " Border Burghs " (Hawick, Galashiels, and Selkirk) was created, returning one Member ; and Glasgow and Dundee received an additional Member each. 2 February 20, 1867. Hansard, clxxxv. 655-678. 3 The day after the meeting at which Mr. Moncreiff intimated his re- R 242 THE LORD ADVOCATES OF SCOTLAND Mr. Moncreiff was, in any case, sure of a seat. Ten years before he had been offered an unopposed return for the counties of Clackmannan and Kinross ; and there were other popular constituencies where he would have been welcome now. He chose, however, to stand for the Universities of Glasgow and Aberdeen, where the Conservative candidate was Lord Advocate Gordon, Thetford having been one of the boroughs disfranchised at the redistribution of seats in England. Parliament was dissolved on the 11th of Novem- ber ; and the polling for the Universities was to begin in the first week of December. During this election Mr. Moncreiff was proposed for the rectorship of Edinburgh L T niversity. Mr. Gladstone, the first rector chosen after the University Act of 1858, had been twice elected, in 1859 and 1862 — the office is held for three years — and in 1865 Mr. Carlyle succeeded him. Mr. Gladstone's inaugural and valedictory addresses had of course attracted some attention ; and no one who was present can forget the pathetic scene on that dim afternoon when Thomas Carlyle. a bent and tragic figure of old age, with a voice so feeble that few could hear him, spoke to his young count rymen on what to him was " the gloomiest chaotic day, nearly intolerable for confusion, crowding, noisy inanity and misery." 1 But the members of the University Court had always hoped that the students would give them a rector who was not a mere figurehead ; and in the summer of 1868 Professor Christison talked the matter over with a group of young men, who, as it chanced, had tirement the Scotsman had an article which shows the state of feeling in the city at that time : " In the House of Commons there is already great amazement and discomfort in regard to our latest choice. Let us show them that we can do something still more extraordinary in the same line. If something is wanted more objectionable and unseemly than we have already, there is Mr. John MilW — send him. To the lowest deep a lower still succeeds, and perhaps the sooner we eet to the bottom the better. Let us lie down in the dirt comfortably, and without further fuss. He that is down need fear no fall, and may even hope to rise some other day." — Scotsman, June 25, 1868. Five months later Mr. McLaren and Mr. Miller were returned unopposed. 1 Reminiscences of Thomas Carlyle, ii. 297. JAMES MONCREIFF 243 already resolved to bring forward Mr. MoncreifL 1 He was nominated when the University met at the beginning of winter, another section of the students proposing Mr. Ruskin. 2 Though each side proclaimed that its man was " the non-political candidate," the MoncreiiT party was, as a matter of fact, Whig to the backbone, while it was the University Conservative club which supported Mr. Ruskin, and told the students not to vote for £i an ex-Lord Advocate, purely a political partisan, chosen by the Parliament House clique," but to elect " Ruskin, the greatest living writer of the English language." To which the other side replied that there was no such thing as a Parliament House clique in the University, and that their man alone would make a thoroughly useful rector. There were verses grave and gay, and placards by the dozen in which many a youth saw himself for the first time in print. - In the midst of all this, while the Parliamentary elections for the Universities were also in progress, as well as the con- test between Mr. Gladstone and Lord President Inglis for the Chancellorship at Edinburgh, 3 the freedom of the city was conferred on Mr. Bright (November 3). This ceremony was followed, a few evenings later, by a great public meeting in the Corn Exchange, presided over by Mr. Grant Duf", at which the orator made a speech on the questions of the day. 1 Mr. Christison, professor of Materia Medica, received a baronetcy in 1871, when he had been for fifty years a professor in Edinburgh. He died in 1882. 2 The tendency at all the Universities had been to elect some distin- guished statesman or man of letters. In 1846, when the students at Glasgow were divided between Lord John Russell and the Poet Laureate, Lord John wrote to Mr. Andrew Rutherfurd, who had himself just been rector, that he did not wish to be put up against Mr. Wordsworth. iS Can't you," he said, " represent to the students that this would be a good oppor- tunity for making the distinction purely literary ? " This was exactly what the professors did not wish. In a letter to one of the Moncreiff party Mr. Christison said (November 2, 1868), " the rectorship of the University was intended by the framers of the University Act, and the new consti- tution of the University, not as an ornamental office merely, but as one with important functions, placing its occupant at the head and for the guidance of an important judicial Court." 3 Supra, p 220. 244 THE LORD ADVOCATES OF SCOTLAND It was Mr. Duncan McLaren who began the proceedings ; and the vote of thanks to Mr. Bright was proposed by that very citizen who had made himself so prominent on the hustings of 1S65. 1 But Mr. Moncreiff was seen on the plat- form ; and there were such loud cries of u Moncreiff, Mon- creiff ' ? from all parts of the building that he had to speak. When he rose he was received with cheers which lasted for some minutes, many of the audience standing up and waving their hats. Another burst of applause followed a few grace- ful words with which he proposed a vote of thanks to Mr. Grant Duff. It was a remarkable demonstra- tion, the meaning of which was obvious — a spontane- ous offer of admiration after what had lately hap- pened. When Mr. Moncreifl reached home that night, evidently much gratified by this episode, he found two of the students waiting to tell him that Mr. Robert Lowe had been pro- posed as a third candidate for the rectorship. This would have divided the Liberal vote — for it was impossible to exclude political feeling ; but Mr. Lowe declined to oppose an old friend and soon after the poll opened (November 14) his name was withdrawn. The contest then lay between Mr. R us kin and Mr. Moncreiff, who was elected by 182 votes, to the great relief of Professor Christison and his colleagues, who had been trembling lest the author of the Stones of Venice should be brought down to guide their deliberations. The Parliamentary election for the L'niversities of Glasgow and Aberdeen ran its course till the Sth of December, when Mr. Moncreiff had a majority of 243 in Glasgow, and Mr. Gordon of 196 in Aberdeen. This secured Mr. Moncreiff 's return by the rather narrow margin of 47. For Edinburgh and St. Andrews the Liberal candidate, Dr. Lyon Playfair, had already (December 5) been elected. In both these elections, the first University elections ever held in Scotland, a large majority of the Established Church clergy voted 1 Supra, p. 235. JAMES MONCREIFF 245 against the Liberals, and a large majority of the non- conformists in their favour. 1 The Scottish Liberals emerged from the elections under the new franchise in greater strength than ever. In Mid- lothian, which the Conservatives had held since 1837, Sir Alexander Gibson Maitland defeated Lord Dalkeith. Perth- shire, which had been a Tory stronghold even longer than Midlothian, was wrested by Mr. Charles Stuart Parker from Sir William Stirling Maxwell. Mr. Henry Campbell, after- wards Sir Henry Campbell Bannerman, entered Parliament for the first time as Member for the Stirling district. The newly created " Border Burghs " sent to the House of Commons the nephew and biographer of Macaulay ; and from the whole country fifty-two Liberals and eight Conservatives were returned. The defeat of Mr. Gladstone in one division of Lancashire and of Lord Hartington in another, and the failure of such democratic candidates as Mr. Beales and Mr. Ernest Jones, proved that the Whigs, Liberals, and Radicals were not to carry everything before them ; but Mr. Gladstone, who found a seat at Greenwich, and became Prime Minister on the resignation of Mr. Disraeli (December, 1868) was at the head of that large majority which enabled him to disestablish the Church of Ireland, and carry into law most of his other measures during the next five years. Mr. Moncreiff, Lord Advocate once more, delivered at Edinburgh, on the 18th of January, 1869, a rectorial address which was afterwards published. One incident of that after- 1 An analysis of the voting in the four Universities shows that the minis- ters of the various denominations voted as follows : — Conservative. Liberal. Established Church . 1,221 67 Free Church .... 33 607 United Presbyterian 1 474 Episcopalians 78 4 Not classified 35 360 1,368 1,512 Of other professions, a majority of the doctors voted Liberal, and a majority of the lawyers Conservative. 246 THE LORD ADVOCATES OF SCOTLAND noon showed his skill and readiness in handling an audience. He was standing on the spot from which he had confronted his foes in 1865 ; and on this occasion there was a sudden interruption at one part of his address. In a passage on the state of classical learning in the Scottish and English Universities he paid a compliment to Mr. Lowe. 1 This was the signal for a party disturbance, which developed into something very like an attempt by the Lowe and Ruskin men to stop the proceedings. But he looked the crowd of excited undergraduates in the face, and, in a voice so clear that all could catch his words, told them : " Catilini gladios contempsi, non pertimescam tuos / " Catiline and his colleague were both sitting on the platform ; and the tumultuous applause which greeted the quotation, with the silence which followed, showed that the students understood the allusion, and with whom they sympathized. Before this the new Parliament had met (December 10, 1868) ; and the Lord Advocate had pleased the Commons when performing what he called " the pleasant, honourable, and to me unexpected task " of congratulating Mr. Evelyn Denison on his re-election as Speaker for the fourth time. " You may," he said, " find weight added to your words, as well as lustre to the seat you occupy, by the fact that in this Parliament you preside over an assembly which, in a wider sense than ever, is composed of the representatives of the people." The principal Scottish measure of the session was an education bill, in which Mr. Moncreiff had embodied the recommendations of a Royal Commission appointed five years before. He proposed that there should be a school board, elected by the ratepayers, in each parish, and a general Board of Education for Scotland (a committee of the Privy LounciJ) with a paid chairman. The system of Privy 1 M He is one of the ablest and most finished scholars of his day,and no one exhibits, in his great Parliamentary efforts, more thoroughly the depth and variety of his classical knowledge. Unconsciously perhaps to himself, there is scarcely a sentence he speaks, hardly an epigram or a retort which falls from his lips, which does not bespeak familiarity with the great ones of antiquity." JAMES MONCREIFF 247 Council grants had not been satisfactory ; and the new Board was to select such denominational Schools as were really needed, and adopt them without calling on the rate- payers to support them. After a certain date denomin- ational schools were to cease, and all schools were to fall under the parochial system. There was to be payment by results, as there had been under the system of Privy Council grants ; but the higher education was also to be assisted. The question of religious instruction was to be settled by the people themselves, with a conscience clause. This was Lord Advocate Moncreiff's sixth attempt to pro- vide a national system for Scotland. The general election having turned wholly on Irish disestablishment, it was useless to bring forward any other serious business in the House of Commons till that question was disposed of. So the Scottish education bill was taken by the Duke of Argyll, who had been chairman of the Commission, to the House of Lords, where it was read a first time on the 25th of February, 1869. The Lords passed it with some amendments ; and on the 12th of April it reached the Commons, and entered on the second stage of a rather instructive history. The Irish bill, though it went to the House of Lords at the end of May, was in such peril that the Ministers could think of little else ; but needless obstacles were thrown in the way of this Scottish measure, for which the Cabinet seemed to grudge even a few hours. On one occasion the Prime Minister displaced it in favour of a bill dealing with the retirement of bishops ; on another occasion Mr. Ayrton, the First Commissioner of Works, pushed it aside to make way for a London rating bill ; the leader of the Opposition, who called the Scottish Members a " select vestry," of course gave no help ; and three months passed before, late one night, the Lord Advocate found an opportunity for the second reading. When the first week of August came, and the end of the session was at hand, with the bill in committee, Mr. McLaren asked the Prime Minister whether the Govern- ment would consider " the propriety of providing some 248 THE LORD ADVOCATES OF SCOTLAND additional means for the transaction of public business con- nected with Scotland." Mr. Gladstone replied in very general terms which did not commit the Ministers to any- thing definite ; but he said that it was the intention of Government to make, during the recess, " an inquiry into the establishments now existing at Edinburgh, which are available for Scottish business, with a view to ascertain how far economy in these establishments, by their abolition, reduction, and modification, may be rendered practicable in the event of the appointment of any new Parliamentary officer for the transaction of Scottish business." 1 The Scottish Members were hardly satisfied with this answer, which meant that nothing would be done, unless the expense could be met by cutting down the estimates for some of the departments in Scotland. It was now the 5th of August ; and on the same day the Prime Minister sent a note to Mr. Glyn, the Liberal Whip, requesting him to ask the Lord Advocate to withdraw his education bill. But to this neither the Home Secretary, 2 nor Mr. Moncreiff would agree ; and four days later the bill went through committee, was reported, read a third time, passed, and sent up as amended to the House of Lords. Mr. Moncreiff believed that the amendments made in the House of Commons would be at once agreed with, and that within a few hours the bill would pass ; but next afternoon (August 10) the Lords ordered it to be reprinted with the amendments, so as to show how it differed from the form in which it had been sent down to the Commons. This implied the loss of the measure for that session ; and later in the evening Mr. Moncreiff, in explaining what had happened, expressed his " surprise and regret " at the course taken by the House of Lords. " All I can say is," he added, " that what has been done in another place will not dis- courage us from future efforts, and should enable the repre- sentatives of Scotland especially to aid, with even more 1 Hansard, cxcviii. 1296. 1 The Right Hon. Henry Austin Bruce, M.P. for Merthyr-Tydvil 1852- 1865, for Renfrewshire 1869-1873, and created Lord Aberdare in 1873. JAMES MONCREIFF 249 harmony and co-operation, in the accomplishment of this great object." These were his last words in the House of Commons. Parliament rose next day, in time for those who had lingered on at Westminster to reach the Highlands of Scotland on the Twelfth. The Lord Advocate and his family were at Cultoquhey, in Perthshire, a place which he rented for some years. A few miles distant is Glenalmond, where that autumn a melancholy event occurred which suddenly changed the course of Mr. Moncreiff's life. The great Highland road passes within a mile of Culto- quhey, winds up the slopes above the vale of Monzie, and runs at a high level across the moors till it meets the river Almond rushing from the Sma Glen, a narrow pass through which Prince Charlie marched on the retreat to Culloden. At the entrance to the Sma Glen a road branches off from the main highway, and descends eastwards through Glenal- mond, where the river, dark brown and full of deep pools, flows between wooded banks, under a bridge at a hamlet called Buchanty, past Logiealmond — the Drumtochty of Ian McLaren's tales — and so onwards till it joins the Tay near Perth. Mr. James Patton of Glenalmond, father of the Lord Advocate of 1867, had died in 1831, leaving part of Glenalmond to his eldest son James, part to Thomas, his second son, and part to George. James died in 1853, and was succeeded by Thomas, on whose death, in August, 1869, George, now Lord Justice Clerk, became proprietor of the whole estate. The portion which the Lord Justice Clerk had inherited on the death of his father was a property called The Cairnies, where he laid out plantations of rare pines and other ornamental woods in which he took great pleasure ; but on his brother's death he removed to Glenalmond House, which is near the river and some two miles distant from The Cairnies. About this time it was noticed that he was nervous and uneasy, as if he had something weighing on his mind. His neighbours heard that he had been strangely agitated, when his brother died, by a paragraph in a newspaper which 250 THE LORD ADVOCATES OF SCOTLAND announced by mistake the " death of the Lord Justice Clerk " ; and this was supposed by some to explai n the change in his manner and appearance which all who knew him noticed. But others suspected that the real secret of his uneasiness was the fear of awkward disclosures about the venal borough of Bridgwater. Though Mr. Vanderbyl had defeated him by gross bribery in July, 1867, the Conser- vatives had not ventured to petition against the return. But after the general election of 1868, when Mr. Vanderbyl and Mr. Kinglake had won the seat by the usual methods, the defeated Conservative candidates had lodged a petition ; and a Commission was appointed to investigate what had been taking place at Bridgwater for many years past. There is no doubt that Mr. Patton's own conduct was innocent. The Conservative agent testified that he had no personal knowledge of the bribery practised on his behalf ; but it was possible that he would be asked whether he could explain several questionable transactions. For example when he stood for re-election, on becoming Lord Advocate, his friend Mr. George Thompson handed £2,000 in notes to Mr. Henry Westropp — himself unseated on petition after the election of 1865 — who exchanged them for gold at the Bank of England, and took the money to the Carlton Club, where he made it up in a parcel, and sent it out to a Mr. Lilly, an auctioneer and J.P. of Bridgwater, who was waiting in a cab outside. This money Lilly took down to Bridgwater, where he gave it to the agent Tromp, by whom it was dis- bursed in bribes. 1 Moreover large sums, far in excess of what were made public, had been spent. Mr. Patton's published expenses were £374 for the two elections ; but they had really cost £6,150, paid either by him or out of party funds. Of this sum at least £1,900 had been spent on bribery at each election ; and, though he had not known what his agents were doing, it would be difficult to escape the imputa- tion of having wilfully closed his eyes. He was far too acute not to see the painful situation in which he stood, and far too sensitive not to feel it deeply. 1 Second Report on Bridgwater, Evidence of E. Lilly, p. 840. JAMES MONCREIFF 251 The Commission began the examination of witnesses on the 23rd of August (1869), and when the middle of September came he was overwhelmed with anxiety. He thought of offering to give evidence, and consulted Lord Colonsay, who, finding him "in a nervous and excited condition," advised him not to appear before the Commission. This interview with Lord Colonsay was on Saturday the 18th of September ; and next day the Lord Justice Clerk and his wife 1 drove down to service at the parish church of Monzie, where his restlessness was noticed. On the follow- ing morning he rose early, went out before breakfast, and did not return. It was found that, contrary to his custom in the country, he had dressed in black, and had left behind him his watch and some articles he usually carried about with him. This caused alarm ; and a search was made in the woods and along the river, which was in flood. Soon the news that he was missing spread ; and for the rest of the day and throughout the night the whole neighbourhood was explored. But no trace of him was found till on the after- noon of Tuesday (Sept. 21) a discovery was made which con- firmed the general fears of a catastrophe. A pathway leads along the side of the Almond from the bridge at Buchanty towards Glenalmond House ; and at a short distance from the house there is a waterfall known as the Spout of Buchanty, below which for about fifty yards the river runs through a narrow gorge, full of shelving rocks and deep pools. Close to this fall and on the brink of the stream an empty razor-case and a black necktie, both identified as his, were discovered. After this there could be little doubt of what had happened ; and, after sounding the river for three days, the searchers at last found what they sought lying at the bottom of a deep pool below the Spout of Buchanty. Those who were on the banks of the Almond on the afternoon of Friday, the 24th of September, 1869, are not likely to forget what they saw. There was another mournful scene when Lord Glenalmond, a man of 1 Margaret, daughter of Alexander Bethune, Esq., of Blebo, in Fifeshire. They had no family. 252 THE LORD ADVOCATES OF SCOTLAND kindly ways and gentle spirit, was buried quietly under a grove of sombre yew trees in the old churchyard of Monzie. 1 Mr. Moncreiff had now been Lord Advocate during the greater part of twenty years. He had served under Lord Russell in two administrations, under Lord Palmerston in two, under Lord Aberdeen, and under Mr. Gladstone. Lord John, custodian of the finest tradition of the Whigs, he always held in high esteem ; but any conversation with him about the party leaders of his day made it plain that " Pam," who was now off the scene, had been his favourite chief. In 1869 that transfer of power the real meaning of which, though forty -five long years have passed and gone since then, the country is perhaps only now beginning to see, had just been made, and we had not, in the common phrase of that time, educated our masters. Mr. Moncreiff, however, did not share all the apprehensions of Mr. Lowe. Since his review of Macaulay's History he had contributed nothing to the Edinburgh till, after the fall of the Russell administration and the arrival of household suffrage, he wrote an article in which he alluded to the views of those who thought that the settlement of 1832 might have been left unmolested. " In Lord Palmerston's cool and cautious hands," he says, "it is quite possible that these views might have prevailed considerably longer than they have done, without exciting much either of party difficulty or public clamour. But it is far better as it is. The growing power of the excluded class could not be restrained or diminished. It must either have remained an influence increasing day by day outside the constitution, or be em- braced within it." It was safer, he is sure, to admit it within the constitution. He thinks that men of violent opinions and slender culture may be elected, and that there 1 The Commission reported that Bridgwater had been corrupt since the beginning of the century, and that corrupt practices had prevailed extensively in 1867, 1868, and at every election as far back as 1831. The Reform Act of 1832 increased the constituency to between 600 and 700, of whom it was said only about 50 were beyond being bribed. The Reform Act of 1867 doubled the number of electors ; but they were of the same character. In spite of protests by the inhabitants the borough was dis- franchised on July 4, 1870 : 33 & 34 Vict, c. 21. JAMES MONCREIFF 253 may be an increase of undue influence and corruption ; but he believes that these evils will be corrected by the growing sense of public duty. 1 This fairly represents the opinion of most Whigs in 1868, when the Radical leaders were beckoning the masses, whom the Conservative party had suddenly entrusted with so much power, to go with them into the unknown. It was certain that, whatever path their captains might wish to take, the masses would not follow the via media of the Whigs much longer ; and perhaps it was a fortunate coincidence — so strangely do things befall public men in their private lives — that Mr. Moncreiff had, by whatever dire mishap it came his way, a high judicial station awaiting him just at the very time when he would have found himself out of sym pathy with some at least of the legislation which followed the lowering of the franchise. He would not have accepted an ordinary judgeship ; but the death of Lord Glenalmond gave him the chair of the Second Division, where he presided for nineteen years. Though not equal to his father as a judge, his legal understanding and practical knowledge of Scottish jurisprudence enabled him to perform his duties on the bench to the satisfaction of the public. No one knew better how to deal with facts, however complicated ; and his judgments were always expressed in the appropriate and polished language which had distinguished his speeches at the bar and in the House of Commons. Soon after he became a judge he received a baronetcy. 2 In January, 1874, he was raised to the peerage, and took his seat (April 20) as Baron Moncreiff of Tulliebole in the House of Lords, where he spoke a few times on such matters as the Judicature Bill, and other legal topics ; but the remaining years of his life were almost wholly spent in Scotland. 1 Edinburgh Review, October, 1868, Article 9. (Address of the Right Hon. Benjamin Disraeli, M.P., First Lord of the Treasury, to the Electors of the County of Buckingham.) 2 May, 1871. The older baronetcy, then held by his brother Sir Henry, dates back to 1626. The title of the Tulliebole family to this was called in question at one time ; and a claim was informally made on behalf of Sir Alexander Moncrieff, K.C.B., as representing another branch, the Moncrieffs of Culfargie. The points at issue are partially stated in the House of Moncrieff (1890), by Mr. George Seton, Advocate. 254 THE LORD ADVOCATES OF SCOTLAND For many years Lord Moncreiff had been in great demand for speeches on such occasions as the centenaries of Scott and Chalmers ; and it would be difficult to say how many addresses and lectures he delivered in the course of his life. " For the first time since the creation of the world," Cockburn wrote so far back as 1853," a Lord Advocate has delivered a popular lecture to a popular audience. This feat was performed on the evening of last Friday. 1st April, a.d. 1853. by the present Lord Advocate. James Moncreiff. in the hall of the Philo- sophical Institute of Edinburgh." 1 Year after year he complied with the demands which poured in upon him. In December, 1855, he addresses the members of the Glasgow Athenaeum. 2 A lecture on " Jurisprudence and the Amend- ment of the Law," he dedicates to the Faculty of Advocates. At a " conversazione " of the Edinburgh Chamber of Com- merce, on the evening of the 3rd of January, 1862, his brother Sir Henry, Mr. Adam Black, Mr. Bouverie Primrose, and a number of Edinburgh worthies, listen while he discourses pleasantly on " A Happy Xew Year." Legal education, Scottish history, many other topics, he deals with from time to time, sometimes in one place and sometimes in another. In 1877 he gives his final opinions on the question of Church and State in Scotland. " I prefer," he says, " to remain on the old neutral vantage ground — to cherish the traditions of our fathers and the lessons of history, and leave it to time to unravel problems which we cannot and need not solve." He speaks as a convinced Free Churchman, but will take no part in the movement for disestablishment. " I have shown," were his last words, "what a State Church was and might still have been. But it is easier to destroy than to restore." 3 One of his last addresses was " An Educational Retro- 1 His subject was one hundred years of progress. There was great curiosity to hear a Lord Advocate lecturing, and, a newspaper report says, " The audience was unusually numerous." 2 British Eloquence of the Nineteenth Century, 3rd Series, p. 137. 3 Church and State (in Scotland) from the Reformation to 1843. This was one of a course of three lectures delivered by Lord Moncreiff, Dr. Rainy, the leader of the disestablishment party in the Free Church, and Mr. Taylor Tnnes, author of The Law of Creeds in Scotland. JAMES MONCREIFF 255 spect," which he gave at the opening (April, 1886) of the thirty-eighth school erected by the School Board of Glasgow. He spoke of the short life of great questions, and of how. in former times, " a perfect barricade of vital questions was carefully reared between the people and their education 15 : glanced at his own <£ educational campaigns/ 5 as he put it ; and said that, though he had failed to settle the question of national education for Scotland, he was satisfied with what had now been done, and quite contented with his own share, however humble, in bringing it about. These productions were not laboriously composed. His opinions were not hastily formed : but they were often very hastily put on paper. His rectorial address at Edinburgh was fixed for the 18th of January (1869) : and shortly before that a young man who knew what was likely to happen went and asked him if it was ready. He had not touched it, and did not write a line till three days before it was to be delivered. But he composed with such facility, wrote so fast, and produced such good matter that it sounded as if a long time had been spent in preparing it. He had also such fluency, and such a thorough knowledge of his topics, that he could speak from a few scanty notes what seemed to be a carefully written address. In the winter of 1859 he gave a lecture at Exeter Hall on the influence of Knox and the Scottish Reformation on England, and. having been asked to publish it, revised a newspaper report, and sent it to the printer with a ncte explaining that he had not written it before it was delivered, which was the reason why it bore marks of i; careless and defective composition. 59 On one occasion this habit of rapidly dashing off lectures involved him in a correspondence with Bishop Colenso, whose views he criticized in January. 1 867. 1 He had formed his opinion of Bishop Colez s: theories by reading reviews, extracts, and letters in the newspapers, and admitted this in his lecture quite frankly. " I have net. 1 ' he said, " read Bishop Colenso *s book, I must fairly avow.*' An interchange 1 Refection? or, the Rdatior, of Recent NMgffc Inquiries to tie MM Teaching of Scripture^ 1867. This lecture was given first at Glasgow, and again, by request, at Edinburgh. 256 THE LORD ADVOCATES OF SCOTLAND of letters followed, as rapidly as the distance between Natal and Edinburgh would allow. The Bishop finds fault with his critic for not having read the book he attacks ; and the critic, rinding that the Bishop has seen some ex- tracts from one of his letters in The Times before it reached him, and sent an answer, immediately makes a good point : " Perhaps as your original remonstrance related to my criticizing your works without having studied them, you wished to redress the balance of complaint by answering my letter before receiving it." The controversy was carried on with great spirit and ever-growing earnestness for a year, and at last ended in a drawn battle, both combatants of course retaining their original positions. His popularity as a public speaker was so great that he was inundated with requests for these lectures and addresses, and gave his services with a profuse generosity which was quite remarkable in a man who was all the time overburdened with public duties, and deeply immersed in the serious business of law and politics. But fortunately his lectures gave him on the whole very little trouble. He knew what he wished to say, and could gratify his audiences with something which, if not always very deep or pregnant, was worth hearing even if he could have made it better with more time and labour, and was invariably attractive from the easy grace with which he spoke. He had a habit of delaying his preparations for these public appearances to the last possible moment. It would be absurd to say that a man who lived so full a life was indolent ; but he had certainly fits of procrastination, especially in the matter of writing. Some- times, intending to review some work which interested him, he would make notes, jot down his ideas, and put off be- ginning — even when he had the time — from day to day until at last it was too late, and it ended by his not writing a line. He had, in the course of his life, several literary projects which were never executed. One of these was the Life of Lord Cockburn, all the materials for which were in the hands of Lord Rutherfurd after Cockburn's death, and when Rutherfurd died were passed on to him. But his incessant JAMES MOXCREIFF 257 work as Lord Advocate left no leisure for such a task. The Memorials and Journals are, however, more valuable published by themselves than if they had been used merely as the authorities for a biography. He once thought of writing a romance founded on history, and one summer in Perthshire — this was after he was on the bench — amused himself by discussing several intricate plots with a young member of the bar who lived near him. The period was to be the end of the seventeenth century, about the time of the Massacre of Glencoe, which he thought would be a fine subject for fiction. The Master of Stair and other Scottish statesmen were to be described, with the intrigues of that day. But nothing came of this. In 1871, however, he published a short volume with a slight plot and a love story rurming through it. It is not so much a novel, as a brightly written causerie on men and manners and coun- try pursuits, such as trout-fishing, in which he took such delight that he thought nothing of tramping home after an afternoon at the Almond, quite pleased if he had two or three small fish in his basket. 1 Lord Moncreift contributed, in all, ten articles to the Edinburgh Review,. With the exception of what he wrote in 1868, 2 none of them were produced while he was in the House of Commons. But in 1874 he had a congenial theme in the newly published " Journal of Henry Cockburn," which he reviewed in the July number. He followed this in October with a very interesting article on the first three volumes of the Greville Memoirs, for bringing out which Mr. Henry Reeve, the editor of the Edinburgh Review, had lately, as least so people always said, incurred displeasure in a very high quarter. Another good article was on General Sir Thomas Graham of Balgowan, the M fine Perthshire squire/' as Lord MoncreifT called him, who won the battle of Barossa, of whom a memoir had just appeared. 3 Edinburgh society in the second half of the eighteenth century, old Scottish 1 A Visit to my Discontented Cousin (reprinted, with additions, from Fraser's Magazine, 1871). 2 Supra, p. 252. 3 The Life of Thomas Graham, Lord Lynedoch ; by Captain A. M. Delavoye, who, when compiling the records of the 90th Light Infantry, S 258 THE LORD ADVOCATES OF SCOTLAND judges, the Whig leaders, and the Parliament House in former times, he discussed when reviewing a volume on the title-page of which the author, with good reason, printed the favourite toast of the Whigs for many years : — " The Independence of the Scottish Bar." 1 In 1892 a delightful monograph on Craigcrook was pub- lished, for which Lord Moncreiff drew, in twenty-nine pages, a charming picture from memory of Jeffrey and his circle, whom he calls the Brotherhood. 2 " I knew Craigcrook," he says, "as a child, as a schoolboy, and as a college lad " ; and it was a great pleasure to him to recall these golden days. By this time he was no longer on the bench. Old age had come at last, and brought with it the usual bereave- ments. Lady Moncreiff, who had rejoiced in the brilliant career of the husband she had married in her youth forty-six years before, died in December, 1881. His brother Sir Henry , who took a great part in guiding the councils of their Church, had lived to a ripe old age, and died in 1883. The friends of his youth and middle age were going one by one ; and the coming of another generation, too, made the veteran feel that he need not linger any longer on the stage. His eldest son, a most lovable man, who inherited much of his father's fine nature, and was in his day perhaps the most socially popular advocate who walked the floor of the Parliament House, was now on the bench. 3 A son-in- was furnished with a collection of MSS. by the heir in line of the family of Graham of Balgowan, Mr. Maxtone Graham of Cultoquhey, where Lord Moncreiff lived for some year3 in summer. 1 The Hon. Henry Erskine, Lord Advocate of Scotland ; by Lieut.- Colonel Alexander Fergusson, 1882. Lord Moncreiff's Articles in the Edinburgh Review were : April, 1847, Art. 7 (Church History) ; July, 1849, Art. 10 (Macaulay) ; October, 1868, Art. 9 (Disraeli's Address to Bucks) ; July, 1874, Art. 9, (Lord Cockburn) ; October, 1874, Art. 9 (Greville Memoirs) ; October, 1S80, Art. 1 (Lord Lynedoch) ; July/1882, Art. 5 (Red Book of Menteith) January, 1883, Art, 8 (Henry Erskine) ; July, 1890, Art, 1 (Earls of Haddington) ; July 1891, Art. 10 (Earls of Leven and Melville). a Lord Jeffrey and Craigcrook : a History of the Castle (David Douglas, Edin., 1892), pp. 15-44. Only 150 copies were printed of this volume, which was planned by Dr. James Taylor, D.D., and published after his death. * The Hon. Henry James Moncreiff, who took the title of Lord Wellwood on becoming a judge, succeeded his father as second Baron Moncreiff of Tulliebole, and died on March 3, 1909. JAMES MONCREIFF 259 law, one of the greatest counsel of his time, had been Dean of Faculty, and already twice Lord Advocate. 1 In 1888, the year in which his son became a judge, the infirmities of age were creeping over Lord Moncreiff. He was turning deaf ; his voice, once so strong, was now that of an old man ; there were other signs of failing strength ; and he retired into private life. He lived on till the spring of 1895, when he was troubled by alarming fits of breathlessness. There was a partial recovery ; but he was now in his eighty-fifth year, and on the afternoon of Saturday the 27th of April the end came. Long before his retirement Lord Moncreiff, who had preserved a number of interesting letters which he re- ceived from public men between 1840 and 1870, began to write his reminiscences ; but when he reached the period of contemporaries who were still alive he found it difficult to continue. So they were never finished. After his death the question of publication was considered by his family ; but they still remain in manuscript. These thirty years, from 1840 to 1870, more than cover the whole period of Lord Moncreiff 's political career. During most of that time the country was governed on Whig principles, even while the short administrations of Lord Derby and Mr. Disraeli came and went ; and it may safely be said that few periods have been so fruitful of progress in Scotland. Lord Moncreiff took a great part in all the transactions of these years. Perhaps too much was attempted in some departments of law reform, and perhaps a good deal of what was done might have been better done ; but he made no rash experiments, and all his measures were consistent with that reverence for justice, for toleration in civil and religious matters, and for the liberty and the property of rich and poor alike, on which was founded the creed of the Whig party he so faithfully served. 1 The Hon. Marianne Eliza, Lord Moncreiff's second daughter, had mar- ried (1877) John Blair Balfour, who was Lord Advocate from 1881 to 1885, and again in 1886. He held the same office from 1892 to 1895, and in 1899 was made Lord President. Raised to the peerage (1902) as Baron Kinross of Glasclune, he died in 1905. Lady Kinross died on September 25, 1913. CHAPTER VII GEORGE YOUNG A T the end of the Session of 1869 Mr. Gladstone promised an inquiry into the Scottish departments. 1 A Com- mission was appointed, with instructions to " ascertain how far it might be possible to effect economy in the manage- ment of the Public Boards in Scotland, it having been represented to her Majesty's Government that if the Boards were concentrated under one Parliamentary head, consider- able financial reductions might be made." Sir Robert Anstruther, Mr. Duncan McLaren, and Mr. Crawfurd, Member for the Ayr district, who had taken the lead in pressing for this inquiry, were in favour of appoint- ing a Secretary, with powers analogous to those of the Chief Secretary for Ireland, to be head of all the civil departments in Scotland, and confining the functions of the Lord Advocate to the conduct of legal bills through Parliament, and to the performance of his duties as first law officer of the Crown in Scotland. Lord Moncreiff, however, and Mr. E. S. Gordon were against any change ; and the Commissioners reported that they saw no necessity for appointing a Secre- tary of State. He would, they said, " Supersede, rather than act together with the Lord Advocate, while the govern- ment of Scotland would be removed from the Home Secre- tary." But an Under-Secretary might be appointed ; and this would, they thought, silence the complaint that the government of Scotland was conducted too much in defer- ence to legal ideas. 2 The report came out in March, 1870 ; 1 Supra, p. 248. 2 Report on Civil Departments in Scotland : Pari. Papers, 1870, (64), xviii. 1. 260 GEORGE YOUNG and no change was made in the position of the Lord Advocate during the time of Lord Moncreiff 's successor, who sat in the House of Commons on the old footing from February, 1870, till August, 1873. Mr. George Young was the only son of Alexander Young of Rosefield, Kirkcudbrightshire, procurator fiscal of Dumfriesshire, and his wife Marian, daughter of William Corsan of Dalwhat in Kirkcudbrightshire. Born at Dum- fries on the 2nd of July, 1819, he was sent to Dumfries Academy, where at that time a very efficient staff worked under Mr. John Macmillan, the rector, who had been one of John Bright's teachers during his schooldays at York, and was afterwards a classical master in the High School of Edinburgh. " I bless and thank him for the instruction I received," said Mr. Young after many years, when he was chairman at a dinner given in honour of Mr Macmillan on resigning his mastership at the High School (July, 1866). His education was completed at the University of Edinburgh, whence he passed to the Scottish bar on the 2nd of December, 1840. His father's business connexions, the good impression he made on the young lawyers he met in the Scots Law Society, which he joined in November, 1838, and still more his own aptitude for the calling of an advocate, gained him from the first a larger share of practice than falls to the lot of most juniors. He was on the Whig side of the bar, and was made an advocate depute in 1849 by Lord Advocate Rutherfurd. Four years later Mr. Moncreiff recommended him for the Sheriffship of Inverness. While holding that office he was retained at the trial of Madeleine Smith ; and though the eloquence of Mr. Inglis probably turned the scale in favour of the accused, she is said to have owed her acquittal largely to the advice given by Mr. Young during the preparation of the defence. In 1860, Lord Advocate Moncreiff again pro- moted him, and he became Sheriff of Haddingtonshire. Two years later he conducted an inquiry of an unusual character, which arose out of a case tried at Glasgow during the autumn circuit of 1862. The family of a Mr. John 262 THE LORD ADVOCATES OF SCOTLAND Fleming, who lived at 17, Sandyford Place, Glasgow, used to spend the summer months on the Clyde, where he joined them every Saturday, returning to business on Monday. On these occasions his father James Fleming, a very old man, remained at the house in Glasgow with a servant named Jessie Macpherson. On the morning of Monday the 7th of July, 1862, when Mr. John Fleming and a son came back the door was opened by old Fleming, who said that Jessie Macpherson had gone away ; but, on going through the house, they found her dead body lying in her bedroom with wounds which proved that she had been murdered. The old man was arrested, and made a declara- tion in the usual form, in which he denied all knowledge of the crime. Some silver plate was missing, and bloody footmarks, clearly not those of old Fleming, were found. The police discovered that the stolen plate had been pawned by a woman named Jessie McLachlan, who was arrested. She admitted the pawning, but said that old Fleming had brought the articles to her and asked her to dispose of them. Some clothes which had been taken from the house were traced to her ; and the bloody marks were found to corre- spond with her feet. She was then charged with the murder, and the old man was released. The trial took place before Lord Deas and a jury, at Glas- gow on the 17th of September 1862. The prosecution was conducted by Mr. Adam Gifford, then an advocate depute, and afterwards a judge with the title of Lord Gifford. The prisoner was defended by Mr. Andrew Rutherfurd Clark. Old Fleming, who was the principal witness, swore that he had thought Jessie Macpherson was not in the house, and had looked after himself from Saturday till Monday, always expecting her to return. A searching cross-examina- tion by Mr. Rutherfurd Clark failed to break him down ; and, if his story was true, there could be little doubt, from the other evidence, of the prisoner's guilt. Her counsel made a very able defence ; and Mr. Gifford, as public prosecutor, was so fair that the English Law Magazine afterwards said that the advocate depute had been more GEORGE YOUNG 263 judicial than the judge, who summed up the evidence very strongly against the prisoner. His charge, which occupied four hours, had such an influence on the jury that they took only fifteen minutes to consider their verdict. They found the accused guilty. Mr. Gifford having moved for sentence, Lord Deas asked the prisoner the usual question — whether she had anything to say. Mr. Rutherfurd Clark then read a statement on behalf of his client. This statement, in which the prisoner admitted that she had been present at the murder, which she said had been committed by old Flem- ing, had been made to her solicitors six weeks before the trial ; but when it was laid before Mr. Rutherfurd Clark, he had decided, against the wish of the prisoner, not to use it, as he thought the Crown would not be able to prove that she had been in the house. Her story, the reading of which caused a great sensa- tion, was that she had called on Jessie Macpherson, and found her in the kitchen with Fleming. They had some drink with him, and she was sent out for more. On her return she found Macpherson lying wounded on the floor. The old man admitted having hurt her. They put her to bed, and Macpherson told her, when they were alone, that she had resented some familiarities on the part of Flem- ing, who had then knocked her down. McLachlan, according to her story, went and spoke to Fleming, who made her swear, "on the family Bible," that she would never reveal what had happened. Later in the night, when she was leaving, she heard a cry, went back, and saw Fleming kill Macpherson with a cleaver. Then, when the woman was dead, he gave her the silver plate, and told her to take it away and pawn it, in order to make the police believe there had been a robbery. 1 This statement having been read, Lord Deas told the prisoner that it was a tissue of wicked lies, and sentenced her to be executed on the 11th of October. The management of this case by Lord Deas made a bad impression. There was a strong feeling against old 1 The whole statement is at p. 220 of The Trial of Jessie McLachlan, Edited by William Roughead, Writer to the Signet {Notable Scottish Trials, 1911). 264 THE LORD ADVOCATES OF SCOTLAND Fleming. Sir Archibald Alison, Sheriff of Lanarkshire, thought the accused had not had a fair trial. The press in England as well as in Scotland took the matter up. There were petitions for a reprieve ; and protests were made to the Lord Advocate and to Sir George Grey, the Home Secretary. The petitions were sent, in accordance with Scottish practice, to the Lord Justice Clerk (Inglis) who thought the verdict was right, and that the sentence should be carried out. But the Home Secretary came to the con- clusion that, in view of the prisoner's statement, there ought to be an inquiry. The question was submitted to the Lord Advocate ; and he arranged that Mr. Young should make an investigation. At the beginning of October a respite till the 1st of November was granted ; and Mr. Young, who had no power to compel the attendance of witnesses or put them on oath, examined a number of persons in private (17-20 Oct.). Sir Archibald Alison, who was present at the hearing of the evidence, wrote a memorial in favour of the prisoner, which he sent to Mr.Young, by whom it was transmitted to the Home Office. Mr. Young sent up his report on the 24th of October ; a farther respite was granted ; and on the 6th of November the sentence was commuted to penal servitude for life. These proceedings were afterwards discussed in the House of Commons. The Home Secretary was asked to produce the judge's notes of the evidence and Mr. Young's report ; but he declined on the ground that it would be " highly inconvenient if the House of Commons became a court of appeal in criminal cases." Lord Advocate Moncreiff, in answer to an accusation of having used his influence with the Home Office in favour of a convict, said that, though the functions of the public prosecutor ended when the jury had found a prisoner guilty, yet when doubts arose it was his duty to act as a Minister of Justice, and that having been consulted by the Home Secretary, who had resolved to have an inquiry, he had given his assistance. There can be no doubt, however, that a Home Office Com- mission, especially when the Commissioner cannot take evi- GEORGE YOUNG 265 dence on oath, is a most unsatisfactory method of review ; and no such Commission has been issued for Scotland since 1862. But from time to time there are cases which ought to be reviewed ; and a criminal appeal court is obviously the proper tribunal for re-opening them. There is no appeal against a sentence pronounced in the High Court of Justici- ary. In the early part of the eighteenth century it was for a time supposed that criminal cases might be taken on appeal to the House of Lords ; and in one well-known case a petition was presented to the Crown, by a prisoner under sentence of death, praying for a respite pending an appeal. The petition was laid before the Lord Advocate of the day for his opinion. He reported that no appeal was competent ; and the Government ordered the convict to be executed. This was in 1765. An appeal was brought in another case some years later. The House of Lords rejected it as in- competent ; and a judgment to the same effect was pro- nounced so late as 1876. 1 This settled the law, which was, indeed, never really doubtful ; but it is open to argument whether cases tried before a single judge sitting as the High Court of Justiciary, as often happens in Scotland, should not be open to review in a court of appeal, which could easily be formed out of the existing Scottish bench. Since 1855 the Solicitor-General for Scotland had been Mr. Edward Maitland, who was counsel with Lord Advocate Moncreiff at the trial of Madeleine Smith, and in other important prosecutions during the last seven years whenever the Whigs were in office ; but on the retirement of Lord Ivory, one of the oldest judges on the bench, he took the vacant chair, and Mr. Young was appointed Solicitor- General (Nov. 1862). His practice was now enormous, swollen, it was sometimes 1 Mackintosh (appellant) v. the Lord Advocate, Law Reports, Appeals, 1876-1877, p. 41. Lord Advocate Gordon argued the case against the Appeal on March 23, 1876. Lord Chancellor Cairns had no doubt. " The sentences and orders," he said, " of the Court of Justiciary are by Statute final and conclusive." The report sent up to the Government in 1765 by the Lord Advocate (Sir Thomas Miller) traces the history of the law relating to appeals minutely. It has never been printed, but will be found in the Record Office, S.P., Scotland, Series II, Vol. 24, No. 119 b . 266 THE LORD ADVOCATES OF SCOTLAND said, beyond all reasonable limits. There was a good deal of grumbling among the Writers to the Signet and solicitors, who said that he took more business than any one man could possibly manage ; and yet they scrambled to retain him. Tales went round of papers, sent to him with heavy fees, which were never opened till he came into court and picked up the points to be argued from his juniors ; but he had such a power of getting to the root of a case that, when all was said and done, his clients seldom complained. If there were hostile witnesses to be examined he was invaluable ; and when speaking at the bar he excelled most pleaders of his day in the art of pressing home just the very points on which he was likely to carry the judges with him. In jury trials he was often opposed to Mr. Moncreiff . The honours were about equally divided between them ; but the contrast between their styles was very noticeable. Mr. Moncreiff was all fire and eloquence, and often appealed to the sympathy and imagination of the jury. Mr. Young was cool, matter-of-fact, and frequently sarcastic. One day, during a trial before Lord President Inglis, a well known member of the bar, Mr. Henry Lancaster, came into court for a few minutes. " The usual thing, of course," he whis- pered to a young man who was Ustening to the case, " Mon- creiff lights the fire, Young pours cold water on it, and the President cleans up the grate." In another case Mr. Mon- creiff's client had brought an action for damages against the doctors of a lunatic asylum for keeping him in confine- ment. He had shouted, kicked, and scribbled all sorts of disgusting language on the walls. All the evidence pointed to madness ; but Mr. Moncreiff, the evening before he was to address the jury, looked up the passage in the Pickwick Papers where Mr. Winkle is seized " with a temporary attack of that species of insanity which originates in a sense of injury," and next morning enlivened his speech by reading it to the jury as an illustration of how, in the opinion of Dickens, whom he called " that profound student of human nature," a perfectly sane man may be goaded into behaving as if he had lost his senses. Mr. Young made short work of GEORGE YOUNG 267 this. " My learned friend," he said, nodding his head slowly, " has gone to a work of fiction for an example of how foolishly a sane man may sometimes behave. But we are dealing here with facts, not fiction, and all I can say is " — here he swung his tall figure round, and pointed to Mr. Moncreiff's client — "that if that man who is sitting there was sane when he behaved as he did, he must be the most degraded wretch that ever breathed." He was very severe in cross-examination ; but when he met his match, he took it in good part, and never re- sented a spirited answer. There was a heavy case from South America, in the course of which it came out that a man had been shot in cold blood. Mr. Young was cross-examining the mistress of President Lopez of Paraguay, a very handsome woman ; and when he came to the incident of the murder he asked her : " Now, madam, what villain did that deed ? " She drew herself up, and replied, " Sir, he was no villain. He was the President of a republic." " Quite so, quite right," said Mr. Young, and added, in an undertone to one of his juniors, "Devilish fine woman this, mind you ! " He treated the judges with the utmost coolness. One example may be given of this. Lord Shand had a habit of walking about on the bench while counsel were speaking. " My Lord," said Mr. Young, stopping suddenly in the middle of a speech one day, " I really cannot address a moving object." The judge at once sat down with a little deprecatory smile, and Mr. Young calmly continued his argument. 1 It was never thought necessary that the Solicitor-General 1 Lord Shand, afterwards (1890-1904) a Lord of Appeal as Baron Shand of Woodhouse, was of unusually small stature, of a very nimble brain, and of most insinuating manners. When Mr. Young was Lord Advocate, and his friend in constant attendance on him, a member of the junior bar made the following parody on the famous Address to the Soul : — " Shandule, parvule, blandule, Amicus hospesque Advocati, Quae nunc in loca abibis, Vafer, subtile, callide ! " 268 THE LORD ADVOCATES OF SCOTLAND for Scotland should have a seat in Parliament ; but in 1865, when there was a vacancy in the Wigtown district (caused by the appointment of Sir William Dunbar, the sitting member, as chairman of the Audit Board) Mr. Young accepted an invitation to stand. " I am a supporter of Lord Palmerston's administration," he told the electors. " I entirely approve of the policy according to which that distinguished statesman and his colleagues have administered the affairs of the country both at home and abroad." That was all the average Scottish constituency wished to know ; and he was elected by a show of hands at the cross of Wig- town on the 15th of April. Three months later he was again returned without opposition at the general election (July 14, 1865). In the House of Commons Mr. Young, though at first he seldom rose, made a good impression at once. One of his best appearances was on the second reading of the Reform Bill of 1866. He spoke at great length, and walked out as soon as he had finished ; and Sir Stafford Northcote, who followed him in the debate, said he was sorry the Solicitor-General for Scotland had left, as he had wished to tell him under what an obligation he had laid the House. " It was im- possible," Sir Stafford said, " to listen to that speech without a feeling of congratulation that the subject was in his hands. He has treated it in a manner worthy of its importance ; and we have listened to a speech that was distinguished for reasoning, whether we agree with it or not." 1 Out of office in 1867 and 1868, during the administrations of Lord Derby and Mr. Disraeli, he became Solicitor-General again after the Liberal victory at the general election of 1868, when he defeated Mr. Vans Agnew in the Wigtown district. He was re-elected, on taking office, without a contest on the 4th of January, 1869. For some time Mr. Young, conscious of great powers and by nature uneasy in a subordinate position, had been waiting, somewhat impatiently it was understood, for the retirement of Mr. Moncreiff ; but in the autumn of 1869 he at last found 1 Hansard, clxxxii. 1815. GEORGE YOUNG 269 himself Lord Advocate, and presented his commission to Lord President Inglis in the First Division on the same day (October 19) as Mr. Moncreiff took his seat as Lord Justice Clerk. He was called to the English bar on the 24th of November by a special resolution of the Middle Temple, of which two years later he was elected an honorary bencher. 1 This compliment from the bar of England gratified him ; but in Scotland there was a feeling of uneasiness lest it should encourage the new Lord Advocate in certain far- reaching schemes of law reform which he was said to be contemplating. He had no sympathy with a rigid adherence to the Scottish system of jurisprudence, and was known to entertainiplans for the gradual assimilation of the laws in both countries. In the department of commercial law this was obviously desirable in the interest of traders, and Mr. Mon- creiff had taken some long steps in that direction 2 ; but Mr. Young was believed to favour changes which would merge the law of Scotland in that of England, and diminish the authority of the national judges. It was even rumoured that he wished to abolish the Court of Session, and transfer most of the legal business of Scotland to Westminster. A code containing a common body of law applicable to both countries was his ideal. At that time codification was in the air. The days of Blackstone in England and Stair in Scotland were long past. No legal writer, however industri- ous, could venture on the task of compiling, singlehanded, a treatise on the whole law of either country. Parliament was rapidly becoming an over-worked manufactory of statutes which either partially altered the law, or set up wholly new rules to meet the requirements of modern life, the growth of trade, and the changed methods of conducting business which came into use about the middle of the nineteenth century. The era of frantic haste to push bills through anyhow, from which the country now suffers, had not yet begun. But a multiplicity of enactments on every subject was the order of the day ; and even a perusal of some 1 November 17, 1871. * E.g. The Mercantile Law Amendment Act of 1856, 19 and 20 Vict., c. 60. 270 THE LORD ADVOCATES OF SCOTLAND chronological table, or any such humble guide to the arid wilderness of the statute law, with its long array of amending Acts, is enough to show how the work of Parliament was being carried on. To embrace the whole of this vast legislative output in a code, or rather in a series of codes, was the dream of at least one generation of Victorian jurists. The Merchant Shipping Act of 1854 was held up as an ex- ample of what might be done by codification. Its four hundred and fifty-eight clauses went through both Houses of Parliament almost without discussion ; but Mr. Card- well, who was President of the Board of Trade at that time, had been one of Sir Robert Peel's disciples, and saw to it that there was no hasty or inefficient drafting. Mr. Moncreiff's Bankruptcy Act of 1856 amounted to a code of that branch of Scottish law. A Scottish Titles to Land Act of 1868 was a similar statute ; and in England the rules of evi- dence were consolidated in one bill, which was, however, withdrawn. Mr. Young had been fascinated by the idea of working in concert with Sir John Coleridge and other mem- bers of the English bar, and framing a series of codes in such a way as to obliterate many of the differences between Eng- lish and Scottish jurisprudence. But all such attempts to codify the existing laws were useless. The leaders of the new democracy were calling for new laws, and making it plain that some old customs, some presumptions of law, some vested interests, even some harmless pleasures which had hitherto been treated as the natural adjuncts of rank, or wealth, or the ownership of land, were to be called in question. Since the first Reform Act, particularly of late years, there had been a general improvement in the conditions of life among the working classes in Scotland. Many abuses had teen removed ; and the Scottish reformers now concentrated their attention on a few well-defined and practical points. None of these, if we except the great question of national education, excited more interest than certain grievances of which land law reformers complained ; and when Mr. GEORGE YOUNG 271 Young became Lord Advocate it was known that the Government would be pressed to legislate for the tenant farmers — and particularly on two questions. From time immemorial the landlord in Scotland always had, as security for the rent, not only the tenant's obligations in the lease, but also a right to the crops, cattle, horses, implements, and household furniture on the farm. The crops of each year were attachable as security for the rent of that year ; and if the farmer fell into arrears, and the landlord took no steps to enforce payment, the crops of several years might be retained, each crop as security for its particular year. Cattle, implements, and furniture could not be held for the rent of a particular year, but were subject to the landlord's general right for three months from the time the rent became due. This was the " law of agricultural hypothec," as it was called, until 1867, when an act was passed which provided that the landlord's claim to crops, cattle, and horses could not be enforced beyond three months after the rent was payable, unless he secured it by making the tenant insolvent by legal process ; and at the same time implements, and manures and feeding stuffs not produced on the farm, as well as household furniture, were set free from the land- lord's claim. 1 This was the law in 1869, when Mr. Young took office as Lord Advocate ; and in practical working it came to this — that when a tenant farmer was in arrears the landlord could, by exercising his claim to the crops at one time, and to the cattle and horses at another, put himself in such a position that, if the tenant became quite insolvent, he had a preferable claim for perhaps two years, while there might be nothing left but a small dividend for other creditors. One effect of this system was that many farmers could not obtain credit, and were unable, therefore, to buy what was necessary to work the land to the best advantage. Another evil was that a poor landlord was J 30 and 31 Vict., c. 42. 272 THE LORD ADVOCATES OF SCOTLAND tempted to accept the tenant who offered the highest rent, without regard to whether he possessed the capital needed to do full justice to the soil. The landlord was, moreover, encouraged to let his property be overrun by an excessive stock of ground game ; for though the tenant might be ruined by hares and rabbits, the rent was practic- ally secured by the law of hypothec, which thus enabled the landlord to receive two rents, one from the farming tenant, and another from the sporting tenant or game dealer, who paid him for animals fed at the farmer's expense. In this state of things the total abolition of the law of agricultural hypothec was demanded. The remedy sought for the injury done to farming by hares and rabbits was to give the tenant an inalienable right to kill them ; and for some years there was seldom a political meeting in any Scottish county at which something was not heard about the law of hypothec and ground game. Another question was the decrease in the rural population. The state of the Highlands was attracting attention. There were people in England who spoke as if the deer " forests " were vast regions covered with trees, which might be cleared and turned into farms or small hold- ings. But every one in Scotland knew that they were barren mountains, mere treeless wastes of rock, and swamp, and heather, which could never be cultivated. The way in which parts of Sutherland had been cleared of their in- habitants to make way for sheep, which in turn made way for deer, was sad ; but even in the lower parts of the glens the soil and the climate were such that the crofters, whose ancestors had been the armed retainers of the chiefs, had barely been able to eke out a living. A Select Commit- tee, appointed to inquire into the laws for the protection of deer, reported that there had been complaints against the deer forests on two grounds. It was said, first, that they tended to the depopulation of the country ; and secondly, that, by the displacement of sheep to make way for deer they had diminished the food supply, and so raised the price to the consumer. The evidence, however, convinced the GEORGE YOUNG 273 Committee that these complaints were not well founded. One great cause of depopulation was, it seemed, not the deer forests, but the suppression of the illicit whisky stills which had enabled many small holders to make a precarious liveli- hood. The complaints of a diminution of the food supply were, the report said, exaggerated. 1 The deer forests, indeed, were never fitted for cultivation ; but there were other parts of the country, on the confines of the Highlands and in the Lowlands, where the soil was ara- ble, and where at one time there had been many small farms and crofts, with gardens and cottages which were the homes of industrious and frugal working families. The abolition of the small farms, and the remova] of the crofters, was a mis- fortune to farmers ; for it diminished the supply of men, and consequently raised the price of labour. Since 1832 the yearly pay of a ploughman in Scotland had risen by more than one half, and the wages of other farm labourers in propor- tion. The privileged position of the landlord, under the law of hypothec, made him tolerably safe ; but the farmer's profits had fallen in some places to almost nothing, and land on which fine crops could have been grown, if the rural population had not been driven out, was neglected. In the sixties the demand for crofts, in the few Lowland districts where they were still to be obtained, was in excess of the supply ; and it was felt that the population of the agricul- tural counties of Scotland was far below what it ought to be, and that this had been caused by the wholesale creation of large farms. But it was easier to see the evil than to find a remedy. When Parliament met, on the 8th of February, 1870, the Scottish members hoped that, with the question of the Church of Ireland settled, and with a Lord Advocate so bent on doing great things as Mr. Young was understood to be, at least as many hours would be found for Scottish business as had been found in the days of Rutherfurd and Moncreiff ; but it was soon evident that Irish land and English education would consume almost all the sittings of the House of Com- 1 Pari. Payers, 1873 (285), xiii. 1. T 274 THE LORD ADVOCATES OF SCOTLAND mons. A ground game bill, however, was at once brought in by Mr. George Loch, Member for the Wick district. But the Lord Advocate intimated that he intended to introduce a measure on behalf of the Government, and when the day fixed for the second reading of Mr. Loch's bill came it was postponed. The House of Commons was so fully occupied for the rest of the session that the Government did nothing ; and the bill was at last withdrawn. 1 The question of agricultural hypothec fared as badly. The Lord Advocate said (March 28), that he had brought the subject before the Government, but that " pressure of business " made it doubtful whether the Ministers could find time to deal with it ; and these two questions, which the farmers of Scotland had hoped would be speedily taken up in the first Parliament elected under the extended franchise, were left unsettled. Since Lord Colonsay began, when he was Lord Advocate, to " put common sense into our deeds," much useless lumber had been removed from the law relating to land titles ; but conveyancing lawyers shrank instinctively from inroads on the feudal system. It .was not that shorter and fewer deeds would mean less expense to the client. The reason rather was that it appeared safer, as it certainly was easier, to set forth at full length, one after the other, all the previous deeds by which a piece of land had been transferred, to repeat the whole on the parchment " instrument of sasine," and finish the process by recording everything in the " Register of Sasines. 5, It was a firm belief that any change in the old system would make a landowner's title less secure that led most legal practitioners to cling to the ancient formalities when McNeill and Rutherfurd began to attack them. One of the statutes of 1 845 had abolished the picturesque but foolish ceremony which took place when one of the parties to a transfer of land picked up some stones and earth, and gravely gave them to the other — a piece of nonsense which was, in the eye of the law, the bailiff of the feudal superior giving actual possession to the agent of the vassal. But after 1 Commons Journals, August 3, 1870. GEORGE YOUNG 275 this performance, together with the giving of a shilling, which meant " taking instruments 93 in the hands of a notary public of the Holy Roman Empire, and many other absurd impediments to the easy transfer of land, had been abolished, a great part of the cumbrous feudal system of conveyancing, handed down from the middle ages, was still in force ; and in the session of 1870 Mr. Young brought in (February 24), a bill for the entire abolition of feudal tenure. 1 But the congestion of business was such that this measure, which would have been of great value to Scotland, made no progress, and had to be sacrificed. Towards the end of the session, however, Mr. W. E. Forster announced that next year the Government would produce an education bill for Scotland. 2 Parliament met again on the 9th of February (1871), and four days later the Lord Advocate brought in the education bill. There was a thin House. Mr. E. S. Gordon had the front Opposition bench to himself ; and the only member of the Government in attendance was Mr. \Y. E. Forster, though Mr. Adam came in now and then from the lobby to listen for a few minutes. Mr. Young, who spoke for an hour and a half, was heard almost in silence except once, when he said that in his opinion there was really no religious difficulty in Scotland — a statement which the Scottish members re- ceived with cheers. The bill, providing for a committee of the Privy Council, to be called the Scottish Education De- partment, popularly elected school boards, and most of the arrangements which were afterwards embodied in the Scottish Education Act, was well received, though Mr. Gordon, who followed the Lord Advocate, made a strong appeal for inserting a clause to secure the old system of religious instruction ; and at the end of February, after a long debate, it was read a second time without a division. 3 Sectarian jealousy had been diminis hing for some time in 1 Hansard, cxcix. 787. a The Edinburgh Annuity Tax question was settled in this session by the Act 33 and 34 Vict., c. 87, the history of which is given in Mackie's Life of Duncan McLaren, i. 203. 3 Hansard, cciv. 946. 276 THE LORD ADVOCATES OF SCOTLAND Scotland, where the people were tired of the long delay over the education question. In spite of all differences of opinion regarding the election and payment of the clergy, there was practical unanimity as to the religious training of children. The only serious difficulties were that the Voluntaries were still against religious instruction by teachers paid out of public funds, and that the Established Church still clung to the exclusive control of the parish schools. The most common objection to the Lord Advocate's bill was that it placed the supervision of Scottish education in the hands of a committee sitting in London. It was feared that the Scottish Department, as proposed in the bill, would al- ways be subordinate to the Privy Council ; and the Scottish Members were warned that they must guard vigilantly against this danger if they wished to settle the education question on a permanent basis. The Board ought, it was said, to be directly responsible to Parliament, or to a Scottish Minister. Otherwise there would be neither efficiency nor harmony in the new system ; for the tendency would always be to sacrifice Scottish wishes and interests to those of Eng- land. If there was to be a central authority, it ought to sit in Scotland. " This we know of the Lords of Council," said one speaker. "They are a very grand body when put on paper, but when we go to them they dwindle down to one single gentleman sitting on a three-footed stool, and that is the Privy Council. We send up a deputation and we get the answer, ' My Lords are of opinion that you are all wrong, and that we (that is me) are right.' " When the General Assemblies met the Established Church resolved, by a large majority, to oppose the bill unless amendments were made securing religious instruction according to the " use and wont " of Scotland, and " pro- tecting in its main features the present constitution of the parochial schools." 1 Nevertheless, the creation of local boards was not so actively opposed as it once had been ; for it was clear that if, as most Scotsmen now thought, the members of a congregation were competent to elect a mims- 1 Acts of Asseiribly, May 23, 1871. GEORGE YOUNG 277 ter, the ratepayers were no less competent to elect a school- master. But at a meeting held in Glasgow it was resolved to oppose the bill on no fewer than fifteen points, one of which was that the proposed school boards were to be elected by the ratepayers, " without any security that the boards thus elected will possess special qualifications for the discharge of their duties." The Free Church resolved to petition in favour of the bill with certain amendments ; and both Churches wished a Scottish Department independent of the Privy Council. 1 The general complaint was that in the past the Privy Council had marched over the border, with its red tape and arbitrary methods, and encouraged, by grants out of public funds, the erection of sectarian schools instead of a national system ; and it was felt by many that it would perhaps be the best thing for Scotland if there could be an union of all the Presbyterian Churches, with the church and the school in every parish brought into the old intimate relations. This, it was thought, might save Scottish education from the interference of the Privy Council. Meanwhile t he bill had been closely studied at Westminster ; and on the 13th of June the Lord Advocate found that notice had been given of two hundred amendments. When this became known Mr. Duncan McLaren asked the Prime Minister to send the measure to a Select Committee re- presenting Scottish opinion ; but Mr. Gladstone said that the Lord Advocate had made up his mind that his bill must be discussed in committee of the whole House. Already two other Scottish bills, a ground game bill, and a bill for the abolition of agricultural hypothec, had been rejected. The Ballot Bill, too, had been lost ; and the Army Bill was in troubled waters. The Commons had passed them both ; but the Lords had thrown out the Ballot Bill, and postponed the purchase clauses of the Army Bill. On the 20th of July Mr. Gladstone told the Commons that purchase in the Army was to be abolished by royal warrant — a mode of settling the question to which some Radicals as well as the whole 1 Acts of Free Church Assembly, May 26, 1871. 278 THE LORD ADVOCATES OF SCOTLAND Conservative party, objected ; and on the same day it was announced that the Scottish Education Bill was to be with- drawn. There was great disappointment, and Mr. George Anderson, one of the members for Glasgow, asked Mr. Gladstone if he could not give a definite assurance that it would be the leading measure of next session. The Prime Minister's answer was that he could not quite see what " leading measure " meant. It could hardly, he said, be expected that the Ballot and Army Reform were to be put aside for an Education Bill ; but as soon as these questions were out of the way legislation for Scotland would probably come next. It had been, on the whole, an unfruitful session for Scot- land. A Public Health Act 1 had been carried by the Lord Advocate, who had also uprooted the ancient law of deathbed — that plant of purely Scottish growth — a step towards the assimilation of the laws of England and Scotland about which there were some differences of opinion in both coun- tries. 2 Otherwise the legislation of 1871 was of little interest ; and the loss of the measures dealing with agricul- tural hypothec and ground game, together with the post- ponement of the Education Bill, caused indignation in Scot- land. " Scotland is entirely set aside and neglected," Dr. Begg wrote, " during last session. Although sixty Members from Scotland have spent much time in London, they have spent it in vain. They have been allowed to hang about the Parliament and give party votes without securing any advantage for their own long-suffering constituents. The affairs of Scotland have, during the whole session, occupied only a very few hours altogether of the time of the Legis- lature, and there is not at present the slightest prospect that this state of matters will be much improved in the future." The session closed in gloom for the Ministers, against whom the reaction which overthrew them at the next 1 Public Health Act, 34 and 35 Vict., c. 38. 2 The Act 34 and 35 Vict., c. 81 (August 16, 1871) abolishing the law of deathbed, is one of the shortest statutes ever passed. " No deed, instrument, or writing made by any person who shall die after the passing of this Act shall be liable to challenge for reduction ex capite lecti." GEORGE YOUNG 279 general election had already begun. Early in the year the Prime Minister had been warned that there was discontent at Greenwich, where some of his constituents went so far as to propose that he should be asked to resign his seat. The Chancellor of the Exchequer, always suspected by the working classes, had increased their suspicions by his pro- posals for the taxation of matches ; and the First Commis- sioner of works had a very unpleasant habit of rubbing people the wrong way which made him unpopular. These were small matters ; but the Whigs were turning restive, while all over England the nonconformist warriors had gone to their tents, where they sat brooding over the Education Act and muttering threats of vengeance. Already Ireland had begun to block the way ; and a speech which Mr. Gladstone made at Aberdeen, on receiving the freedom of the city (September 26, 1871) proved clearly that he knew how the interests of Scotland were neglected in Parliament. " I admit," he said, " without the least hesitation that the present condition of the action of Parlia- ment with regard to Scottish business is unsatisfactory." But the difficulty was great. Parliament was overtasked ; and imperial questions must come first. Scotland, however, had a strong claim to have the Education Bill passed ; and " if you find us voluntarily placing any exclusively English subject in front of your Education Bill — well, I was almost going to say that you may take away from me the decoration you have just conferred." In Edinburgh, on his way home, he saw the Lord Advocate, but declined, in the midst of his short holiday, to enter on the subject of education. That subject was, however, now absorbing the attention of Scot- land. In every part of the country public meetings were held ; and the opponents of the bill, those who objected to school boards, those who believed that religious teaching was in peril, and that large majority which resented the interference of the Privy Council, passed resolutions calling on Mr. Young to change his plans. " If " said one speaker (Perth, December 21), "we only let our voice be 280 THE LORD ADVOCATES OF SCOTLAND heard, the Government, and even the Lord Advocate, will have to listen to it. I know that the Lord Advocate sticks to his position when he takes it up ; but if he hears from all parts of Scotland a distinct voice as to what we want he will frame his plans accordingly, and give us a better bill." 1 Lord Advocate Young's management of Scottish busi- ness has been described as autocratic and masterful ; and it was often said that he ruled the Scottish members with a rod of iron, and was as severe with deputations as with witnesses in cross-examination. His manner was often not conciliatory ; and he had an impatient way of driving slow- minded people straight to the point. He could never toler- ate any beating about the bush. His perception of the irrelevant was so keen that it guided him like an instinct when he was debating a point of law or fact in the courts ; and in politics it was the same. Perceiving clearly, on the education question, that the only way to settle the chief difficulty was to set up in every parish an elected school board, and leave it to decide what religious instruction should be given according to the wishes of the electors, he resolutely adhered to that principle, and so escaped the rock on which the pilots of the English Act made shipwreck. On the 12th of February (1872) he brought in his second bill, which, except for some changes in the arrangement of clauses, and some details of drafting, was almost the same as the measure of the year before. 2 There was no division on the first reading. But the English nonconformists, now in full revolt against the Government, were bent on trying to wreck the Scottish Education Bill, which they thought was even more favourable to the denominational system than the English Act ; and they resolved to send delegates to Scotland to speak against it. 1 A recent speech by the Chancellor of tho Exchequer had alarmed the friends of religious instruction as to the views of the Government. " By paying for secular results," he said at Halifax on December 5, " and giving no payment at all for religious instruction, we adopted a system tending very forcibly to the secularization of education. I look upon this as a great benefit." 2 The bill of 1871 is Pari. Paper, 1871 (31), i. 509, and that of the next year Pari. Paper, 1872, (31), i. 519. GEORGE YOUNG 281 The most violent onslaught came from Birmingham, where it was decided that Mr. R. W. Dale must go to Scotland, and deliver a series of attacks on the Govern- ment. He was advised to stay at home, and leave the people of Scotland to manage their own affairs. " I think it better," Br. John Cairns wrote to him (February 9, 1872), "that we should fight the battle out among ourselves, rather than be agitated by a new party, however much we sympathize with your grievances." 1 But Mr. Dale could not see that he was not wanted, and started on his crusade, during which he spoke at Edinburgh, Glasgow, and Aberdeen. His best meeting was at Aberdeen, and even there he had a small and apathetic audience. " The bill of the Lord Advocate," he said, " reproduces some of the very worst features of the measure that was carried through Parliament in the session of 1870." The Privy Council was to have power to make grants to denomina- tional schools ; and " little Presbyterians " would fall into the hands of Episcopalians and forsake their hereditary faith. " Our English Act," he said, " bad as it is, leaves it to the discretion of the school boards to determine whether or not they will pay fees on behalf of the children of indigent parents who are attending denominational schools. The Lord Advocate's bill will compel the school boards of Scotland to pay fees on behalf of such children." Therefore the ratepayers of Aberdeen might have to pay fees which would be spent on buying crucifixes and pictures of the Virgin Mary and the saints. He declared that the law was to be resisted in England, and that he was sure " hundreds and thousands " in Scotland would rather suffer anything than submit. He taunted the Voluntaries for supporting such a bill ; and probably mistook the cheers he received at the end of his speech for approval of all he had said. A petition in favour of amending the bill was adopted ; but all Mr. Dale's rhetoric against the Government could not shake the solid liberalism of Aberdeen, any more than 1 Life and Letters of John Cairns, D.D., p. 545. 282 THE LORD ADVOCATES OF SCOTLAND froth blown from the North Sea could shake the granite rocks. A far more influential voice was raised in favour of the Lord Advocate's measure. ' ; Lend your hearty support," the veteran Guthrie wrote in a <; Letter to my fellow-coun- trymen," " to a bill which, conserving all that is good in our parish schools, will carry the blessing of education into every mining district, dark lane of the city, and lone Highland glen. Its compulsory clause will, with God's blessing, save thousands of unhappy children. They are now perishing for lack of knowledge ; and I am certain that if many Christian, kind-hearted people knew as much as I do of the sad lives and sad ends, the misery, vice, and crime to which they have doomed these hapless creatures should the bill be thrown out, they would bitterly regret having petitioned against it.'' This Letter was circulated in April, when the bill had already passed its second reading. Before the House of Commons went into Committee a resolution which suggested that the law of Scotland had required that religious in- struction should be given in the schools was carried against the Government. 1 The Church of Scotland and the Free Church both expressed their satisfaction at what had been done ; and, though amendments were desired, the general scope of the bill found acceptance in both Assemblies. Mr. Young's difficulties were now at an end. There was a short period of doubt when the Commons rejected the pre- amble (relating to religious teaching) in the form in which it had been adjusted by the House of Lords, and substituted 1 This was the famous " use and wont " resolution which was drawn up and moved by Mr. E. S. Gordon ; " That having regard to the principles and history of the past educational legislation and practice of Scotland, which provides for instruction in the Holy Scriptures as an essential part of education, this House, while desirous of passing a measure during the present session for improvement of education in Scotland, is of opinion that the law and practice of Scotland in tliis respect should be continued by provisions in the bill now before the House." Mr. Glyn and Mr. Adam had a whip out against it ; but it was carried by a majority of seven (216 to 209) on May 2, 1872.— Hansard, ccxi. 288. GEORGE YOUNG 283 one of their own. But the Lords gave way ; and the bill was quietly passed on the 2nd of August. 1 Thus, in spite of long and formidable opposition, a system of national education was at last set up in Scotland. Though Lord Advocate Young reaped the harvest of a field which had been sowed by others, it was his sagacity and foresight that carried the bill through Parliament. He had seen at once that the <; use and wont " resolution carried against him, and the preamble dealing with religious teaching, would not in any way affect the practical working of his measure ; but his solution of the religious difficulty was possible only because there was in Scotland neither that mortal hatred between Church and Chapel which is found in England, nor any difference in the dogmas which were accepted by the various branches of Presbyterianism. As for the comparatively small minority who belonged to other denominations, they had the conscience clause ; and it turned out that after all the much dreaded religious question did not interfere with the smooth working of the Act. Presbyterians, Episcopalians, and Roman Catholics were elected, and sat together on the school boards with wonder- fully little friction ; and the religious training of the young continued unchanged in the parish schools. 2 It is possible that if there had been no disruption of the Scottish Church the tie between the Church and the schools would have remained unbroken far longer than it did ; but from the day on which the Church ceased to represent a majority of the people all claims to control the education of the whole country became lint enable. First the University 1 35 and 36 Vict., c. 62. The Duke of Richmond, who was in a hurry to leave London for Goodwood races, had arranged privately with Lord Colonsay and the Duke of Argyll that the bill was to go smoothly through the House of Lords at one short sitting when it came back with the preamble changed. The Duke of Buccleuch, who had not been consulted, came in late, and expressed his surprise and annoyance that everything had been settled so rapidly ; but it was then too late to go back on what had been done. 2 At the first elections under the Act there were only 599 contests for 972 boards. — Return of School Boards elected under the Act of 1872 : Pari. Papers, 1873 (412), lii. 617. 284 THE LORD ADVOCATES OF SCOTLAND test went, then the test for schoolmasters, and at last the management of the parish schools. The Church acquiesced in the new order ; and the first General Assembly which met after the passing of the Act contented itself with a few words of dignified regret that the ancient system had been blotted out, and of hope that the new system would be equally bene- ficial. 1 When the House of Commons met again on the 6th of February, 1873, it was doubtful whether the Ministers would be able to hold their own much longer ; and in little more than a month their principal measure, the Irish University Bill, to which a large section of their supporters was opposed, was rejected on the second reading by a majority of three. Mr. Gladstone resigned ; but Mr. Disraeli refused to take office, and the administration was reorganized, with Mr. Gladstone as Chancellor of the Exchequer as well as Prime Minister. But the great Liberal majority of 1868 was now a thing of shreds and patches, and, more fatal still, feeling in the country was rapidly veering round in favour of the Opposition. Mr. Young had already (1870) brought in an entail bill; and in the session of 1873 he returned to that branch of the law. That provision of the Rutherfurd Act which allowed the proprietor holding under a new entail, when he was twenty-one years of age, and had been born after the 1st of August, 1848, at his own hand and without obtaining consent from, or paying compensation to, any one, to disentail the estate and hold it in fee simple, came of course into effect in 1869. That other provision, by which the proprietor born before 1848 required the consent of his heir apparent, if twenty-five years of age, and born after 1848, before he could disentail, tied up estates till 1873. A period had, therefore, come when man}' disentails might be expected. But the Rutherfurd Act had not forbidden new entails, and there was nothing to prevent a process of disentailing and re- entailing continuing for all time coming. Mr. Young's bill of 1873 made disentailing easier, by dispensing with 1 Acts of Assembly (proceedings), May 23, 1873. GEORGE YOUNG 285 certain consents ; but its chief feature was a prohibition of new entails. He proposed to repeal the original statute of 1685, and to allow restrictions on the free use of land to a limited extent only. Another feature was a clause allowing the Court of Session to sanction the sale of an entailed estate without the consent of subsequent heirs, if the sale would be for the benefit of the heir in possession or the public. This important measure reached the stage of a second reading, which was moved by the Lord Advocate at half past one on the morning of the 5th of May, after the Commons had been sitting for hours ; but, like so many Scottish bills, it was sacrificed to the exigencies of imperial business, and went no further. The session was even more sterile than usual so far as Scotland was concerned, though the Lord Advocate carried through a very useful bill, which set up a uniform standard of training for lawyers other than mem- bers of the bar, and abolished exclusive privileges of practis- ing in particular courts. 1 Though for a long time the by-elections in England had been going against the Government, and there was very little hope that it would last much longer, the dissolution of January, 1874, was a complete surprise, not only to the country but also to some of the Prime Minister's most inti- mate friends. The immediate cause, then quite unknown to the public, seems to have been that Mr. Card well at the War Office, and Mr. Goschen at the Admiralty, would not agree to certain reductions of expenditure which Mr. Glad- stone demanded. The Government, it will be remembered, went to the country on finance. There was a surplus of £5,000,000 ; the income tax, which in the last five years had fallen from fivepence to threepence, was to be entirely abolished ; and there were to be large remissions in the taxation of articles of consumption. Every one knows what the answer of the country was — the return of a Conservative majority to the House of Commons for the first time since 1841. Even in Scotland the Conservatives made a gain of nine seats. 2 1 Law Agents Act, 36 & 37 Vict., c. 63. 2 They gained N. Ayrshire, S. Ayrshire, Berwickshire, Midlothian, S. 286 THE LORD ADVOCATES OF SCOTLAND Owing, it was believed, to resentment at his treatment of Mr. Henry Glassford Bell, Sheriff of Lanarkshire, over differences which had arisen between them, the Lord Advo- cate had fallen out of favour in the West of Scotland. The Orangemen, too, were very active against him in the Wig- town district, particularly at Stranraer, where they decor- ated the walls with placards in which the Ministers were described as "an ungodly crew " and a " national curse," and paraded the streets shouting " To hell with the Lord Advocate." Mr. Young lost his election by two votes, and the seat went to Mr. John Mark Stewart, afterwards Sir J. M. Mactaggart Stewart. 1 A scrutiny was demanded, and at the end of May the election judges gave the seat to Mr. Young by one vote. But he had already accepted a judge- ship, and taken his seat in the court of session on the 3rd of March. 2 As a judge Lord Young's powers were great ; but, as Lord Campbell had been in England, he was far too fond of taking the management of cases into his own hands, and inter- rupted counsel to such an extent that though his object was to save time he really wasted it. One day, when the late Mr. William Ellis Gloag (afterwards Lord Kincairney) was in a case before him, Lord Young went beyond all bounds ; and Mr. Gloag sat still after one witness had left the box without calling another. " Well, Mr. Gloag ? " asked the judge. " Will your Lordship please to call your next wit- ness," said the counsel ! This was when he was sitting alone, as a judge of first instance. When he went to the Inner House, where he sat in the Second Division, it was the same. He was impatient both with counsel and with his colleagues. One advocate quoted as an authority that Lanarkshire, Perthshire, Roxburghshire, Stirlingshire, the Wigtown and Ayr districts, and a seat in Glasgow, and lost Elgin and Nairn and Kirk- cudbrightshire. 1 " The greatest loss," said the Scotsman, " that Scotland has suffered herself, or has inflicted upon Parliament, is due to the Wigtown Burghs. They were represented by the strongest man Scotland sent to Parliament, and they have substituted for him one of the weakest men that could be found far or near." 2 Succeeding Lord Cowan, who had resigned. GEORGE YOUNG 287 rather ancient treatise known as Balfour's Practicks. " Balfour's Practicks ! Balfour's Fiddlesticks ! " exclaimed Lord Young. On another occasion Lord Guthrie, then at the bar, opened a case with the words, " My Lords, my client is a Free Churchman," and Lord Young at once broke in with, " Well, he may be a very decent man for all that." To facilitate reference capital letters are inserted on the margin of documents printed for use in Court. " Where are you reading now ? " Lord Young asked a counsel one day. "I'm at C my Lord," was the reply. "I thought so," said his Lordship. Nor did he spare his colleagues. He was once on circuit at Glasgow with Lord Deas when the clergyman made an unusually long prayer at the opening of the court. " Very long prayer that fellow gave us," said Lord Young in the evening, " I suppose when Deas goes on circuit, they think it right to call the Almighty's attention to the fact." In a case heard before the Second Division one of the litigants was named Macdonald. " I thought," Lord Young remarked, " that there were no Macdonalds out- side Skye." " You will find them all over the world," said the presiding judge, Lord Justice Clerk Macdonald (Lord Kingsburgh). ; ' Yes, and sometimes in the most unex- pected places," Lord Young retorted. But the stories about him are endless, and most of them so well known that they need not be repeated. He never dealt in pondered witticisms or carefully pre- pared impromptus. All his sharp sayings were uttered on the spur of the moment ; and if he was sometimes too personal, even to rudeness, it was probably because a feeling that he was in a position below that which he was capable of filling made him irritable. However, he was to rise no higher. He was by nature, it was said after his death, " so strenuous, not to say ruthless, in his dealings with all sorts and conditions of men, that it might have been predicted, when he abandoned politics for the judicial bench, that he would not cliinb more than one of the rungs of the ladder of promotion that faces a ' Lord 288 THE LORD ADVOCATES OF SCOTLAND Ordinary ' on his appointment." Some consolation he certainly had in the fact that, though he was frequently in a minority in the Second Division, the House of Lords was often found to agree with him if there was an appeal. He kept his place on the bench for thirty-one years. In 1905 his health failed. He was unable for some weeks to attend the court ; and in April he resigned, being then in his eighty-seventh year. Lord Young, who had married, in 1847, Miss Janet Graham Bell, daughter of George Graham Bell of Crurie in Dum- friesshire, and had a large family, lived during the greater part of the year in Scotland. But his journeys to London were frequent ; and when there he made a point of dining at the high table of the Middle Temple, of which he was one of the oldest benchers. During one of these visits he was attacked by faintness while walking in the Temple grounds, fell, and injured himself. This brought on an illness which lasted a few days, and of which he died in London on the evening of Tuesday the 21st of May, 1907, almost the last survivor of the counsel who had practised at the bar of Scotland in the early years of Queen Victoria. CHAPTER VIII EDWARD STRATHEARN GORDON WILLIAM WATSON TN February, 1874, when the Conservatives, after being continuously in a minority of the House of Commons for nearly thirty years, at last found themselves in power as well as office, Mr. Gordon, now in his sixtieth year, was appointed to the Lord Advocateship, which he had previ- ously held for some time after the elevation of Mr. Patton to the bench. 1 Edward Strathearn Gordon was born at Inverness on the 10th of April, 1814. His father was Major John Gordon of the second (Queen's) regiment, the eldest of four soldier sons of Adam Gordon of Griamo chary, Kildonan, Sutherland- shire. His mother was Katharine Janet Smith of Kin- mylies near Inverness. Young Gordon was sent by his parents to the Royal Academy at Inverness, and thence to the University of Edinburgh, where he matriculated at the age of fourteen, and went through the usual courses in arts and law. In 1835 he joined the Scottish bar, side by side with his lifelong friend John Inglis, the future Lord President, and apparently was fairly well employed as a junior from the first. Official promotion might have come his way sooner than it did but for the chances of party warfare, which threw everything into the hands of the Whigs for so many years. He was, however, an advocate depute under Mr. Inglis ; and in 1858 he was appointed Sheriff of Perthshire. He had mounted steadily into a considerable practice, and, though not a rival of Mr. Moncreiff, Mr. Young, and other 1 Supra, p. 240. 289 U 2go THE LORD ADVOCATES OF SCOTLAND men who were at the very top of the bar at that time, was a sound lawyer, and a most judicious pleader. One of his most important cases was when he was senior counsel for Major Yelverton in the romantic lawsuit which occupied the Scottish and Irish Courts for several years, and was at last decided, in favour of Major Yelverton, afterwards the fourth Viscount Avonmore, by the House of Lords in 1864. In July, 1866, Mr. Gordon was appointed Solicitor-General for Scotland in the Derby-Disraeli administration ; and in February of next year he succeeded Mr. Patton as Lord Advocate. He had not yet found a constituency ; and early in the session of 1867 this led to questions and a debate in the House of Commons on the subject of Scottish ad- ministration. 1 In his absence the Scottish Reform Bill of that year was brought in by the Chancellor of the Exchequer (Disraeli), Mr. Gathorne Hardy, and Sir James Fergusson on the 13th of May. 2 But it was decided that no further progress was to be attempted till after the English bill was through Committee ; and on the 29th of July, a question having been asked about the intention of the Govern- ment, Mr. Disraeli replied : " It is not the intention of the Government to proceed with the Scottish Reform Bill this evening or any other evening this session." Parliament rose on the 21st of August ; and two months later the Conservatives of Scotland were eagerly awaiting the speech which Mr. Disraeli was to make at Edinburgh. Within less than twelve months an unexpected change had come over the party. Lord Grey's Reform Act had brought about far greater alterations in Scottish than in English politics. The ruin of the Conservative party in Scotland had been complete owing to the height from which it fell. Nothing could have been more discouraging than its con- dition for many years ; and when, on the death of Lord Palmerston, Parliamentary reform became once again a practical question the opinions held by the Conservatives on almost every topic were more unpopular than ever, because of their resistance to all proposals for extending 1 Supra, p. 240. 2 Hansard, clviii, ix, 399. EDWARD STRATHEARN GORDON the franchise. In the summer of 1866, they spoke and wrote against any change. But the genius of Mr. Disraeli triumphed ; and those who in 1866 were protesting against even an instalment of reform found themselves, in 1867, applauding the introduction of household suffrage in the towns. Many old-fashioned people, indeed, saw this sudden change of front with unconcealed annoyance, and agreed with Lord Cranborne and his friends in condemning it. But the younger Conservatives, fascinated by the strange personality of Mr. Disraeli, who had fought his way up with such invincible courage, began to realize that, the old order of things having passed away for ever, they must abandon the traditions of their party on the question of the franchise, and to hope that, by adopting new methods, they might regain their influence in Scotland. Lord Macau- lay has described how, when the popularity of Byron was at its height, his admirers not only learned his poetry by heart, but did their best to write like him and look like him, and speaks of the " hopeful undergraduates and medical students who became things of dark imaginings." Some- thing like this took place among the young politicians in the Parliament House. They began to study Sybil, to speak mysteriously of a great Tory Democracy, and sometimes to adopt the tones and gestures of Mr. Disraeli, whilst traces of his phraseology might be noticed in their speeches. And now the magician who had brought all this about went down to Midlothian. He left London on the morn- ing of Saturday, the 26th of October, 1867, with Mrs. Disraeli, and arrived in the evening at Arniston, where he was the guest of Mr. Robert Dundas in the old oak room round which Henry Dundas used to romp in his boyhood, where Sir Walter Scott " drank many a merry bottle," and where the captains of the old guard had so often sat in council of war during the last stand against the Reform Bill of 1832. In October, 1832, Mr. Disraeli had told the electors of Chipping Wycombe that he was " a Conservative to pre- 2Q2 THE LORD ADVOCATES OF SCOTLAND serve all that is good in our constitution, a Radical to remove all that is bad," and called on the people of England to " unite in forming a great national party which alone can save the country from impending disaster." He now struck the same note at the banquet in the Corn Exchange at Edinburgh. It was a remarkable gathering. Sir William Stirling Maxwell was in the chair. The vice-chairman was Mr. Nisbet Hamilton, who had been the last Tory Member for Edinburgh. 1 The Duke of Buccleuch, who in 1832 had so vehemently resisted even the measure of Lord Grey, was there, with a brilliant company who heard their versatile leader, whose appropriate motto, forti nihil difficile, was displayed upon the walls, tell the country how he had educated them on the question of reform. The great man was on his legs for two hours and a half, while delivering this extraordinary oration, in the course of which some young advocates observed with interest and approval that he consumed one whole decanter of brown sherry. 2 After this memorable meeting the Disraelis remained in Edinburgh till Friday, the 1st of December, as the guests of the Lord Advocate, attended various functions, and were taken by their host to see Holyrood, the Castle, the Parlia- ment House, and other public places. The freedom of the city was presented to Mr. Disraeli, the statesman who had put the future of the country in the hands of the working-classes, in company with Mr. Robert Lowe, who had so resolutely opposed any lowering whatever of the franchise ; and the Lord Advocate presided at a meeting in the Music Hall, where addresses from the " Conservative working men " were presented to Mr. Disraeli. A dinner party at Mr. Gordon's home brought this interesting visit to a close ; and next morning the Disraelis left Scotland. " During a four days' visit to Edinburgh in 1867," we read in the biography of Dr. Charteris, " Mr. Disraeli had been Mr. Gordon's guest, and had learned to trust his judg- ment. By a curious coincidence Mr. Gordon, when a lad 1 Supra, p. 206, note 5. 2 Mr. Gordon proposed " The Agricultural, Commercial, and Manufac- turing Interests of the Country," but without making a speech. EDWARD STRATHEARN GORDON 293 of eighteen, had heard Francis Jeffrey, the Lord Advocate of the day, introduce the first Scottish Reform Bill in 1832 ; and he himself first opened his mouth in Parliament, by Mr. Disraeli's invitation, to introduce the second Scottish Reform Bill in 1868." 1 But to fulfil this duty it was necessary that the Lord Advocate should be in Parliament ; and at the beginning of December he found a seat in the Norfolkshire borough of Thetford. This small constituency returned two Members ; but the few electors were seldom put to the trouble of going to the polling booth. There had only been two contested elections since 1832 ; and the custom of the place was to return a Conservative and a Liberal, tho Grafton family putting up the Earl of Euston or some other Liberal and the Ashburton family a Baring. In the winter of 1867 the Hon. Alexander Baring, afterwards the fourth Lord Ashburton, retired ; and it was arranged that the Lord Advocate should have the seat. He went to Norfolk- shire, and on the 18th of November, in the guildhall at Thetford, " in a long and eloquent speech gave his opinions upon general politics, all of which were of a strong Conser- vative nature." 2 Lord Frederic Fitzroy, the Duke of Grafton's brother, came into the field against him, but retired ; and on the 2nd of December, Mr. Gordon was declared duly elected. Next evening he went to the House of Commons, and took his seat ; but four days later the short autumn session of that year finished, and there was an adjournment till the 13th of February (1868), when Parliament again met, with Mr. Disraeli at last Prime Minis- ter and Mr. Gladstone leader of the Opposition. The Reform Bill for Scotland was brought in (February 17) by Mr. Gordon, who then spoke for the first time in the House of Commons. 3 The second reading was taken on the 9th of March. But within a week Mr. Gladstone gave the signal for his attack on the Church of Ireland ; and for the rest of the session the Scottish Members had to 1 The Life of Archibald Hamilton Charteris, D.D. By the Rev. the Hon. Arthur Gordon, p. 229. 2 Norfolk Herald, November 20, 1867. 3 Hansard, cxc. 811. 294 THE LORD ADVOCATES OF SCOTLAND fight for any spare time they could obtain. The resolutions for the disestablishment of the Irish Church engrossed the attention of Parliament ; and though the Scottish Reform Bill was a Government measure in charge of the Lord Ad- vocate, it was pushed aside to make way for other Ministerial business and for the Irish Church resolutions moved by the leader of the Opposition. In the midst of all this came the resignation of Mr. Disraeli when the first resolution was carried, the hints of a dissolution, and his return to office. But the Reform Bill for Scotland could not be allowed to drop ; and after many delays, loud complaints by the Scottish Members, and several defeats of the Government in Com- mittee, it was at last carried through all its stages, and passed by the House of Lords in July. Before the general election of November, 1868, Thetford had gone the way of the Eatanswills, Lansmeres, and Yattons, which had been spared in 1832 ; and, as we have seen, Mr. Gordon stood for the Universities of Glasgow and Aberdeen, but just failed to secure his election. 1 The change of Government which followed the general election sent him back to his practice at the bar ; and he remained without a seat till the autumn of 1869, when Mr. MoncreifT became Lord Justice Clerk. He then stood once more for the L'niversities, which he carried by the large majority of 504 against Mr. Alexander Smith of Jordanhill. At the same time he succeeded Mr. MoncreifE as Dean of the Faculty of Advocates. During his political career Mr. Gordon was a prominent leader in a movement which has left a deep mark on the history of Scotland. For some time Church questions had once more been coming to the front. The growth of the Free Church had been remarkable during the years which followed the disruption. Its churches and manses had spread all over the country. It maintained colleges of its own in Scotland, and a complete system of foreign missions in India and other parts of the world. In Edinburgh its 1 Supra, p. 244. EDWARD STRATHEARN GORDON 295 General Assembly met in a spacious hall which had been erected close to the spot where stood, according to tradition, the palace of Mary of Guise ; and there the business of the Church was conducted with forms and ceremonies which had been handed down from the days of Knox. An income which gradually rose till it reached the large sum of £500,000 a year, derived wholly from voluntary contributions, proved that the financial schemes of Chalmers had been sound. And at the same time the Established Church had been recovering from the blow which it received in 1843. A new school had arisen. Men of wide sympathies and tireless energy, Norman Macleod, Tulloch, Lee, Charteris, Macgregor, and others, were taking the place of the old Moderate party, and quickening the religious life of the community. The ashes of the disruption fires were turning cold. Free Church- men had ceased to speak as if they alone were Christians ; and Churchmen had come to see that, apart from the legal rights and wrongs of the dispute, the men who followed Chalmers had gone after him for conscience' sake. The press, which had never been friendly to the Free Churchmen, now spoke of the disruption as a noble sacrifice, which ought to dispel any doubt as to the purity of their motives. It was known that an answer to the protest of the Free Churchmen of 1843 had been prepared ; but it had never been made public, and the world at large began to doubt whether the protest was answerable. 1 Soon after the disruption, moreover, it had become known that Sir Robert Peel had been misled as to the state of feeling in Scotland ; that Lord John Russell had been assured that only a few turbulent and hot-headed men would go with Chalmers ; and that there was reason to believe that Lord Brougham and Lord Cottenham had not studied the Auchterarder case fully when it came before them, and had thought, when they gave their decision, that they were dealing with a question of merely passing interest. Lord Aberdeen and 1 Some light is thrown on the reasons why the answer to the Free Church protest was suppressed in a letter, written in August, 1843, by Mr. David Milne-Home, advocate depute, to Lord Advocate McNeill, and published in the Biographical Sketch of David Milne-Home, LL.D., p. 174. 296 THE LORD ADVOCATES OF SCOTLAND Sir James Graham had expressed their remorse for the course they had taken ; and Sir James Graham had gone so far as to say that he would never cease to regard it as " the saddest event of his life that he should ever have had any hand in that most fatal act." 1 While there were still some who cherished unabated antagonism to the Free Church, many, even of those who were convinced that Chalmers and his party had been alto- gether wrong in point of law, ardently desired to see the Church of Scotland become more truly national by means of an union with those who had seceded. Mr. Gordon was a strong Churchman ; but he was most anxious to effect a reconciliation with the heirs of Chalmers, for whom he had a profound admiration. " I was one of those," he said in 1870, " who saw with great pain the disruption of our Church in 1843. I was then a young man, not entitled to take a lead in those matters ; but from that time forward I have ever looked with great interest for the time arriving when there might be a reasonable expectation of some proposition being made with a view to reunion with our brethren who had left us. I will candidly admit that it is a matter which lies very near my heart. In fact, it is one of the great inducements which I have to remain in public life." But it was evident that if there was to be a reconstruction of the Church the first step must be the abolition of patronage. Without that nothing could be done. Since 1843 patronage had been exercised under Lord Aberdeen's Benefices Act. 2 When it was passed Lord 1 Robert Buchanan ; an Ecclesiastical Biography, p. 208. Commenting on this, and on a statement to the same effect in Mr. McCullagh Torrens' Life of Sir James Graham, ii. 232, Mr. C. S. Parker says, " that he ever held such language is in itself improbable ; in his private papers there is no trace of it ; not was it suspected by his family or friends " (Parker's Sir James Graham, i. 395). But if Dr. Buchanan's positive statement, put on paper within a few days after his interview with Sir James Graham, is not conclusive, Mr. Murray Dunlop, speaking at Carlisle in September, 1862, mentioned that Sir James Graham said to him, " in a very earnest tone and manner, ' I have never ceased to deplore the part I took in your Scotch Church affair ' " (Memoirs of Guthrie, ii. 66). And, again, almost exactly the same thing was said by Sir James to Mr. Adam Black some years after the disruption (Memoirs of Adam Black, p. 125). - Supra, pp. 129-131. EDWARD STRATHEARN GORDON Campbell said that all it did was to give every congregation in Scotland the right to grumble. As time went on the General Assembly began to grumble too, and motions for some change in the law were made. In 1860 a proposal that the Church should apply to Parliament for an Act " to explain the powers of the people in the settlement of their ministers " was lost. The same thing happened in the following year ; but a committee was appointed to consider the question. Next year things went so far that a resolution for the repeal of the Act was brought forward. It was rejected ; but the dissatisfaction with the state of things under the Aberdeen Act grew ; the majorities against changing the law diminished ; and at last in 1869 a resolu- tion against the law of patronage was carried, and a petition to Parliament praying for its abolition was adopted. 1 Soon after this (June, 1869) a deputation, led by Dr. Nor- man Macleod, explained to Mr. Gladstone that the Church of Scotland now wished patronage to be abolished, and were asked whether any of those who had left the Church on account of patronage had been consulted. The reply was to the effect that the abolition of patronage had been regarded as a matter which concerned the Church alone. Mr. Gladstone then said that it might appear to some " that the ecclesiastical property should be made over to those who bore earlier testimony to the principle of anti-patronage, namely the Free Church in 1843, and the various seceders now forming the United Presbyterian Church." This raised a point with which the deputation had no authority to deal, though some of both the laity and the clergy of the Estab- lished Church had wished the Free Church to be consulted. The question was now before the country ; and every Member of Parliament in Scotland had to face it. Not all of them were so adroit as Lord Advocate Young, who, after a speech at Stranraer, was asked what action he would take if Mr. Gordon brought in a bill to abolish patronage. " I can have no difficulty as to that," he replied. " My first action will be to read the bill." 1 Acts of Assembly, May 26, 28, 1869. 298 THE LORD ADVOCATES OF SCOTLAND Soon after this very characteristic reply there was a meet- ing in Edinburgh (December 28, 1870), at which Mr. Charles Dalrymple, the Conservative Member for Buteshire, moved a resolution in favour of abolishing patronage, which was seconded by Mr. Gordon. Mr. Gordon's great wish was to unite the Established and Free Churches ; and to accomplish this was now the chief object of his public life. Opinion in the Established Church had altered completely since the disruption. The memorial to the Government which Mr. Inglis drew up 1 had said that the abolition of patronage would be the ruin of the Church. In the General Assembly of 1870 it was said that if patronage was not abolished the Church would die of inanition. There were debates in Parliament. In the House of Lords one of the first speeches made by Lord Rosebery was on this topic. 2 Sir Robert Anstruther, the Member for Fifeshire, a Liberal Churchman, took it up in the House of Commons. The demand for some action by the Government grew louder ; and in 1873 Sir Robert Anstruther moved for an official inquiry. 3 Mr. Gordon seconded this motion ; but opposition, led by Mr. Duncan McLaren, came from the Radicals, who feared that the abolition of patronage would strengthen the Church, and the motion was withdrawn, after Mr. Gladstone had suggested that a committee might be appointed to consider the question. 4 Meanwhile since the year 1863 the Free Church and the " United Presbyterians " had been negotiating with the view of uniting. What had kept these two great com- munities apart was the question of the recognition of religion by the State. Put broadly, the Free Church held the " es- 1 Supra, p. 204. 2 Hansard, ccvi. 454 (May 9, 1871). 3 He moved : " That, whereas the presentation of ministers to churches in Scotland by patrons unde r the existing law has been the cause of much division among the people and in the Church of Scotland, it is expedient that Her Majesty's Government should take the whole subject into con- sideration, with a view of legislating as to the appointment and settlement of ministers in the Church of Scotland." — Hansard, cexvi. 1090. 4 It appears from a passage in the Life of Dr. Chartcris, p. 225, that Lord Advocate Young, under instructions from Mr. Gladstone's Government, actually prepared a bill dealing with the question ; but nothing came of it. EDWARD ST RATHE ARN GORDON 299 tablishment principle," while the United Presbyterians held the " voluntary principle/' For a short time the course of the negotiations had been smooth ; but the discussions proved that there were two parties in the Free Church. The supporters of the union, who were in a large majority, maintained that, seeing the two Churches had so much in common, there was nothing in the voluntary principle, which might be left an open question, to prevent the union. Those who opposed the union accused the majority of desert ing the original principles of the Free Church ; and feeling became so exasperated that at last it was evident that the minority were prepared for another disruption rather than consent to the union. It was, moreover, very doubtful to which of the two parties the property of the Free Church would belong if the majority insisted on accomplishing the union ; and counsel were consulted on this very impor- tant question. 1 When it was seen that the two sides were so sharply divided that no union was possible except at the cost of breaking up the Free Church the negotiations were formally abandoned. 2 Such was the situation in 1874, when the Liberal Govern- ment went out, and Mr. Gordon, who had been returned by his University constituents without a contest, was appointed Lord Advocate for the second time. 3 Dr. Begg and his party had carried their point ; and in the meantime the Free Churchmen were living in outward harmony with each other. But nearly ten years of recrimination and wrangling had left their traces. The Church of Chalmers could never again be the same as in the radiant May of 1843. There was reason to believe that, if patronage was 1 Dr. Begg, the leader of the minority, consulted Mr. Gordon, Mr. J. B. Balfour (afterwards Lord President), Mr. John Millar (Solicitor-General, 1867-6S ; 1874) and Mr. Rutherfurd Clark I Solicitor-General at that time), and obtained an opinion in his favour. Mr. Rutherfurd Clark and Mr. Balfour also advised the other side ; and it may be presumed (though no written opinion was given) that the risk of their losing the property was pointed out. 2 Acts of Free Church Assembly, May 29, 30, 1S73. * Mr. Gordon, who now resigned the Deanship on the ground that the offices of Lord Advocate and Dean of Faculty should never be in the same hands, was sworn of the Privy Council on March 14, 1S74. 300 THE LORD ADVOCATES OF SCOTLAND abolished, the Established Church might be strengthened by the adhesion of some who had been members of the vic- torious minority in the recent conflict. In any case, and this was what seemed more important in the eyes of Mr. Gordon, no reunion of the Presbyterians of Scotland was possible till the ancient grievance was removed ; and when the new Parliament met in March (1874) a mea- sure for this purpose was in preparation. The bill to u amend and alter the law relating to the appointment of ministers to parishes in Scotland," of which Lord Advocate Gordon was the author, was brought into the House of Lords by the Duke of Richmond on the 18th of May. 1S74. It repealed both the Patronage Act of Queen Anne, the original source of trouble, and Lord Aberdeen's Act, and gave the power of electing the ministers to the communicants, the patrons receiving compensation for losing their rights of presentation. A clause declaring the spiritual independence of the Church had been prepared by the Lord Advocate and discussed by the Cabinet. All the Ministers except Lord Cairns, whose Low Church opinions it offended, had been willing to include it in the bill, if it could be made absolutely certain that the Free Churchmen would accept it as satisfying their claims. But this was found to be impossible ; and the measure was adjusted without this clause. Another clause was, however, added, declaring, in general terms, the exclusive jurisdiction of the Church in all matters relating to the settlement of ministers. 1 This important provision was in the third clause of the bill. The proposal to abolish patronage was welcomed by the Duke of Argyll, Lord Rosebery, and most of the peers, con- demned only by a few, who said they were sorry that the 1 14 Provided always that, with respect to the admission and settlement of ministers appointed in terms of this Act, nothing herein contained shall affect or prejudice the right of the said Church in the exercise of its undoubted powers to try the qualifications of persons appointed to vacant parishes ; and the courts of the said Church are hereby declared to have the right to decide finally and conclusively upon the appointment, admission, and settlement in any church and parish of any person as minister there- of."— 37 & 38 Vict. c. 82 s. 3. EDWARD >TRATHEARN GORDON first measure proposed in the House of Lords by the new Conservative Government should be " a serious inroad on the rights of property," and sent down to the Commons unchanged. At the end of May the bill was discussed at great length by the two General Assemblies. In the Assembly of the Established Church it was suggested that Parliament should be asked to amend the third clause, by adding words which would enlarge the powers of the Church, on the ground that this might " dispose towards the Church of Scotland the hearts of those in other communions, who had endured great sacrifices for which they would be revered for gener- ations to come." But this proposal was rejected. The bill, it was said, was a bill dealing only with patronage and the settlement of ministers, and there was a danger " of raising up in the minds of the English Parliament the whole question of spiritual independence which was raised in 1843, and of creating the impression that the Church of Scotland was again raising the same standard." The Assembly agreed to petition both Houses of Parliament in favour of the bill ; and a vote of thanks was given to the Lord Advocate " for the valuable services he has rendered to the Church and the country in the promotion of this measure." 1 In the Free Church there was a division of opinion. The party which had opposed the union wished to appoint a committee " to watch over the whole subject during the current year," and take steps to bring the principles and claims of the Free Church before Parliament and the country. But the majority carried a resolution which declared that no Act to alter the law of patronage " can have the effect of removing the grounds of separation recorded in the protest read before Her Majesty's commis- sioner on the 18th of May, 1843." They further protested against legislation, professedly in the interests of Scotland generally, which proceeded on the application of one Church alone, without inquiry into the wishes of the people as a whole. 1 Acts of Assembly (Proceedings) May, 29, 30, 1874. 302 THE LORD ADVOCATES OF SCOTLAND This resolution was carried at a morning sitting. On the evening of the same day another resolut ion declaring that the maintenance of the Established Church was an injustice, and in favour of disestablishment, was carried on the motion of Dr. Rainy, whose fate it was, during the next thirty years, to lead the Free Church on to that overwhelming calamity, the full effects of which were averted only by the wisdom of Parliament and the public spirit of a few Scottish and English statesmen. 1 It was thus apparent that the bill would not heal the breach of 1843, but might even make it wider. Just before the disruption of 1843 Dr. Chalmers had said, "A mere Non-intrusion measure will not satisfy us. The aboli- tion of patronage itself will not satisfy us." This was still the position of the Free Church after thirty years ; and the leaders persuaded themselves that the object of the bill was not really to unite the Churches, but to weaken the Free Church. And, indeed, there was some reason for this suspicion. When Dr. Norman Macleod had his interview with Mr. Gladstone in 1 869 2 he said that one object of the movement against patronage was to conciliate the Free Church. But from that time till the bill was brought into the House of Lords the Free Church had been ignored. And not only so ; but a proposal to consult the Free Church before going to Parliament had been discussed and most unwisely rejected by those who were acting on behalf of the Established Church. This was before the Liberal Government went out of office ; and Mr. Gladstone had been watching the pro- gress of events. He had now the full confidence of a majority of the Free Churchmen, who had long since forgiven him for voting against an inquiry into the claims of the Scottish Church in 1843. 3 They sounded him as to his opinion of the new departure. " It raises," he said, " the whole question of Church and State. They 1 Acts of Free Church Assembly, May 29, 1874. The motion for disestablishment was carried by a majority of 298 to 98. 2 Supra, p. 297. 3 Supra, p. 92. EDWARD STRATHEARN GORDON 303 come for a new charter ; and the proposed arrangement is a monstrous injustice. If the Free Church acquiesces in that, it will acquiesce in anything." 1 Soon after the patronage bill was introduced Dr. Rainy was in correspondence with Mr. Gladstone, and said that the third clause 2 was meant to assure the Free Church that the difficulty as to jurisdiction was removed as well as patronage. But the language, he thought, was vague. If the Established Church was to have an independent jurisdiction, of course the Free Church approved ; but let it be made perfectly clear. M We do not," he explained, " question the good intentions of Mr. Gordon, who is no doubt the architect of the measure. I feel quite sure that all his motives are creditable. But Mr. Gordon's mind is precisely of the order which is disposed to get round difficulties of principle by phrases which turn out deceptive, however little he may mean to deceive." 3 This was itself rather vague language ; but the object of the letter was of course to enlist the services of Mr. Glad- stone. He had not yet formally resigned the leadership of the Opposition ; but it was uncertain whether he would take part in the discussions. Wnen, however, the Lord Advocate moved the second reading (July 6) he was in his place, and seconded Mr. W. E. Baxter's motion : <: that this House considers it inexpedient to legislate on the subject of patronage without further inquiry and in- formation." Mr. Gladstone said that he would make a large concession to the Lord Advocate, and say that from the point of view of the Established Church it was impossible to object to his efforts to get rid of patronage. But, he went on, " what I contend is that the nonconformists in Scotland are entitled to be considered in this matter. The learned Lord has framed his bill from a point of view which is that of the Established Church. He says his intention is to strengthen the Church. But how ? Why, by weakening the other 1 This was at an interview (April 17, 1872) with Mr. Taylor Tnnes, who was acting on behalf of Dr. Rainy. 2 Supra, p. 300, note. 3 Life of Dr. Rainy, i. 271. 304 THE LORD ADVOCATES OF SCOTLAND religious bodies. He invests the present Established Church with such command over wealth, and, at the same time, such unexampled, if not unbounded, liberty with respect to the interference of the civil courts, that when you have conferred these high privileges on the laymen of the Established Church, the laymen of the Free and United Presbyterian Churches will be tempted to come back into the Established Church, and to leave their ministers to look out for themselves, or to starve." Was this wise ? he asked. Did the Free Church, after 1843, move for disestablishment ? The answer was to be found in the annals of Scotland during the last thirty years. Why, then, throw down a challenge to the nonconformists ? " The bill now before the House amounts to a cry of Peccavi, but if it is also an admission of wrong and a confession of penitence, let me say that restitution is an indispensable means of testing sincerity. What are you going to do for those people whom you drove out of the Established Church, and compelled to find minis- ters for themselves, to build churches, manses, and schools, and, in fact, to organize and pay for the establishment of a complete system of Church Government ? You compelled them to do all this, and now you say you are going to adopt the principles for which you drove them away." He then proceeded to say that if the Established Church would open a negotiation for union with the nonconformists, he would assist it, but the patronage bill was neither fair nor generous. " But I do not think that the dissenting bodies in Scotland will be content to suffer injustice at the hands of the learned Lord Advocate." There had scarcely been any movement for disestablishment in Scotland till the bill was introduced. But now " these men have met in their As- sembly and by a very large majority, for the first time in their history, declared in favour of disestablishment." This speech persuaded the leaders of the Free Church that when the Liberal party returned to power the Church of Scotland would, in all probability, share the fate of the Church of Ireland. But it had no effect on the division. EDWARD 5TRATHEARN GORDON The second reading, for which a majority of the Scottish Members voted., was carried on the 13th of July. 1 Three weeks later the Commons passed the bill with a few amendments ; and patronage was at last abolished in the Church of Scotland. There was, however, a feeling in England as well as Scotland that it might have been wise to take the nonconformists into council. 2 The disestablishment agitation of the next few years owed much of its vitality to a belief, which never had any sound foundation, that it had been decided in the councils of the Liberal leaders to deal with the question whenever they came back to power. Mr. Gladstone's speech seemed to show that he was ready to move ; and in the Rem in iscences of Mr. Taylor Innes an incident is recorded which proves in what direction his mind had been turning for some time. In 1872 the Free Church had resolved that if any great question of Church and State in Scotland was settled in favour of the Established Church alone, the Free Church would then consider that the question of disestablishment was raised. In the following year, when the Established Church had decided to move for the abolition of patronage, Mr. Innes called on Mr. Gladstone. u ' i Is Scotland now ready for disestablishment ? ? were, Mr. Tunes says, * ; almost the first words he said as I entered his room. I hesitated, and he rapidly and scornfully ran over a dozen of consider- ations, all tending to show that this was the only honour- able result for the Scottish Church or people." Mr. Innes told him that he thought no section of the Scottish people 1 By a majority of 193. Two Free Churchmen were in the majority, Mr. James Yeaman. M.P. for Dundee, and Mr. W. D. Fordyce, M.P. for East Aberdeenshire. The most important change from the original form of the bill was that the right of election was vested in the congre- gation (instead of the communicants), subject to regulations to be framed by the General Assembly. 2 The Times had a leading article (July 7, 1S74) which suggested that the Free Churchmen in each parish might be allowed a voice in the selection of the clergyman. " If," it said, " something of thi^ sort cannot be done, it is difficult to see how the Established Church can fail to become more and more a narrow sect ; and thus, by embittering the existing antagon- isms between the various Churches, the bill might lead to ulterior con- sequences little desired by its authors." 306 THE LORD ADVOCATES OF SCOTLAND was prepared for sudden action. " Long before I was done speaking, he was pacing through the room — flashing eye, white cheek, and tightly compressed lips, all testifying to the pent-up storm within." Mr. Innes, however, stood his ground, and spoke of " a longer time of preparation." Mr. Gladstone made no answer. " He walked three times across the room, and, suddenly turning, addressed me on another subject altogether ! " This strange conversation was reported to the Free Church leader, who evidently was chagrined that Mr. Gladstone's enthusiasm had not been encouraged ; and there can be no doubt that when the Free Church leaders enbarked on their long crusade, they always believed that they could rely on the support of Mr. Gladstone. Party feeling, they seemed to think, would induce the Liberal Churchmen to follow him. It was in perfect confidence of this that at the beginning of December, 1874, a few months after the abolition of patronage, Dr. Rainy made a speech in which he declared that without disestablishment there could never be any reunion of the Churches, and so launched Scotland on another of her many ecclesiastical contro- versies. Lord Advocate Gordon remained in office till 1876, and accomplished a great deal of useful work with the help of a most admirable secretary, Mr. James Badenoch Nicolson of Glenbervie, who took endless pains to lighten the burden which told heavily on his chief, whose strength was failing. In that year (1876) the Appellate Jurisdiction Act was passed. It was understood that the heads of the two Divisions of the Court of Session were to have the first offer of a Scottish Lordship of Appeal ; and Lord President Inglis and Lord Justice Clerk Moncreiff were asked in turn if they would accept this promotion. They both declined ; and Lord Advocate Gordon was then appointed, received a life peer- age, and took his seat in the House of Lords as Baron Gordon of Drumearn. He lived to occupy his new position only till the end of the session of 1879. He was suffering from heart disease, EDWARD STRATHEARN GORDON and was medically advised, on the 29th of July, to visit Homburg for his health ; but he was taken ill at Brussels, where he died three weeks later (August 21, 1879). Lord Gordon married, in 1845, Agnes, only child of John Maclnnes of Auchenreoch in Stirlingshire, and had a family of five sons and three daughters. It was well that his wife had an ample fortune ; for he sacrificed his practice at the bar when he became Lord Advocate and entered the House of Commons, where his quiet commonsense and tact helped him to gain the confidence of the Members from Scot- land, to suit whom he initiated the " Tea Room Meetings," where he used to consult them, supporters and oppon- ents alike, on Scottish business. He had also the full confidence of Mr. Disraeli, with whom he was on terms of personal friendship. His public services were recognized by the Universities of Edinburgh and Glasgow, from both of which he received the degree of LL.D — at Glasgow along with Mr. Disraeli in 1873, when the Conservative leader, who had been elected as rector, gave his inaugural address. During his terms of office important Acts relating to Scotland, notably a Court of Session Act and a Titles to Land Consolidation Act, were placed on the statute book ; but it is as the author of the Act abolishing patronage that he holds a place among the Lord Advocates who have left their mark on Scottish history. Whatever the evils of popular election may be, the evils of patronage were greater. Lord Aberdeen's Act was almost unwork- able ; and it was sound policy, in the interests of the Church, to which it was becoming a source of weakness, to repeal it. A hope of weakening the Free Church may have in- fluenced some of those who took part in the movement for the abolition of patronage ; but it is certain that Lord Gordon's personal aim was to prepare the way for a reunion of the Scottish Churches. That could never take place so long as the people of Scotland were not free to choose their parish ministers. Time alone, however, can show whether the concession of 1874 was not made too late, 1 308 THE LORD ADVOCATES OF SCOTLAND No important statute, nor the leadership of any great cause, is connected with the name of the Lord Advocate who came after Mr. Gordon in 1876. Among the counsel who frequented the Parliament House in the fifties there was one on whom fortune seemed to frown persistently. Day after day, from the meeting of the courts at nine in the morning, till it was time to take off his wig and gown, he walked the well-worn floor, looked at the paintings and marble statues of departed Deans, and Presidents, and Lord Advocates, warmed himself in winter at the huge fire- place, read law — not very much by all accounts — did a little reporting, saw men younger than himself hurry away to the courts where Lord President McNeill and Lord Justice Clerk Hope were sitting in judgment, and sauntered in to hear them plead. But no bundles of papers and no fees came his way. This neglected advocate, whose name was William Watson, was born, on the 29th of August, 1827, in the country manse of Covington and Thankerton, a small parish on the banks of the Clyde in Lanarkshire, where his father was minister with a modest stipend of some two hundred pounds a year. He joined the bar, from the Universities of Glasgow and Edinburgh, in 1851 ; and about ten years of dreary waiting for employment followed. Clydesdale, from which he came, breeds a sturdy race ; and Mr. William Watson was one of the sturdiest, both in mind and body. But it appeared as if he would never have an opportunity of showing his powers. His modesty was such that he kept always in the background ; and it was said, in later years, that the time hung so heavy on his hands that he spent many solitary hours in the curious employment of arranging the loose sheets of music in the Advocates' Library. His father was a member of the General Assembly of 1858 ; and in that year young Mr. Watson was retained as junior counsel in one case, with Mr. George Pattison, a very rough and ready stamp of man, as his leader. 1 Their client, a country minister accused 1 Mr. Pattison, who had been at the bar since 1834, was examined as a WILLIAM WATSON 309 of serious offences, was deposed, and his parish declared vacant. This was one of his few cases ; and as time went on, men of his own standing, and others who had come to the bar long after him, left him behind. Mr. Rutherfurd Clark, only two years his senior, was in full practice. Mr. Adam Gifford was another whose career was assured. Mr. Shand, who had passed advocate after him, was soon a busy man ; but in the year 1862, when two rising juniors who had just passed, Mr. Balfour and Mr. Asher, seemed likely to secure more business in one year than Mr. Watson had obtained in ten, the tide began to flow in his favour. Mr. John Marshall, afterwards a judge (the 2nd Lord Cumehill), was obliged by a serious illness to retire from practice for a time ; and he suggested that all his cases should be entrusted to Mr. W r atson, who at once showed his capacity. Not long before, it was reported, he had been bitterly disappointed at not obtaining a small sheriffship in the country ; but after Mr. Marshall came so wisely to the rescue he began to make his way, and climbed up to a good practice. In 1865 he was retained, along with Mr. Rutherfurd Clark, for the defence of Dr. William Prit chard, the notorious criminal who was found guilty of poisoning his wife and mother-in- law at Glasgow, and whose execution on the 28th of July (1865) was the last public execution there. It is probable that if Mr. Watson had not been at the bar he would have taken little or no interest in politics, read his newspaper, formed his opinions on the questions of the day, and said nothing about them. He always seemed inclined to liberal conservatism ; and it was understood at the bar that he had only refrained from accepting a small witness to the marriage law of Scotland in the case of Thelwall v. Telverton tried in the Court of Common Pleas at Dublin in 1861, and met his match when cross-examined by Mr. Whiteside. Pattison. " I do not understand your question. If you speak in a lower tone of voice I may. Whiteside. " See, Mr. Pattison, you are here to answer me, and not to lecture me. Pray, are you the gentleman who is called in your own country Prelimin- ary Pattison ? Eh ? Always beating about the bush, and never coming to the point ? " etc., etc. The nickname of " Preliminary Pattison " stuck to the old man for many a year. 3io THE LORD ADVOCATES OF SCOTLAND post which he might have obtained from Lord Advocate Moncreiff , on the advice of a friend, who suggested that his chance of promotion would be better if he adhered to the Conservative side. In 1867 Lord Advocate Patton in- cluded him in a batch of fourteen, old and young, who were named as advocate deputes. This brought him into the line of promotion in the party with which he was identified for the rest of his life ; but he had now reached a point in his career when a deputeship was of small importance. Solid merit and high legal acumen had been fast bringing him to the top of the tree ; and before long No. 6, St. Colme Street, Edinburgh, where he lived with his wife Margaret, daughter of Mr. John Bannatyne of Glasgow, whom he married in August, 1868, was the home of one of the busiest counsel at the Scottish bar. In 1874 he became Solicitor-General for Scotland, and next year Dean of Faculty, when Mr. Rutherfurd Clark, who had succeeded Mr. Gordon as Dean, was raised to the bench. There was a rugged simplicity about Mr. Watson which was very attractive. He was the most unaffected of men, and knew his own position so well that he could indulge some Bohemian tastes without fearing the conventionalities that weighed rather heavily on some men of his age. He was sometimes called morose ; but this was a mistake caused by the fact that he was shy with strangers. He was really fond of society, and liked nothing better than to sit of an evening and talk for hours, if he had no work on hand. In this he resembled Mr. Rutherfurd Clark, who was also agreeably unconventional. One young member of the bar with whom Mr. Watson sometimes chanced to walk home at night knew that he was sure to come in " for a few minutes." He would sit down, without taking off his hat or greatcoat, light a cigar, and pour forth anecdotes of his early struggles, stories about his much loved Lanarkshire — a division of which is now fittingly represented in Parliament by one of his sons — about fishing, shooting, anything ; and in summer daylight might be seen creeping along the face of the Castle rock before he left. He was, though this was WILLIAM WATSON not commonly known, a very good mimic, and could take off people to the life. There was nothing he disliked so much as a solemn bore ; and such people fared badly at his hands if he had a good story to tell about them. Though Mr. Watson's massive intellect and great legal powers placed him where he was, he would probably have much preferred a less strenuous career. He was without poli- tical ambition ; but there was no escape from public life, and when Mr. Gordon went to the House of Lords, in 1876, he became Lord Advocate, and Member for the Universities of Glasgow and Aberdeen, which he carried by a majority of 614 against Dr. Anderson Kirk wood. This election was in November, 1876 ; and soon after Parliament met in February of next year, there was a debate on the state of Scottish business raised by Sir George Camp- bell, Member for the Kirkcaldy district, who had given notice of his intention to call attention : " To the extreme neglect of Scottish business in the session of 1876 ; to suggest the necessity of relieving the pressure which is felt in this House, and improving the arrangements for the conduct of business." Half a morning sitting was, he said, all that was given to Scottish affairs ; and when Members went down to Scotland, they found that the Eastern question and the neglect of Scottish business were the only subjects in which their constituents took any interest. He repeated the old complaint that English and Irish bills always came first, and that the only time given to Scotland was in the small hours of the morning. He said he was not sure what would happen if there was a Secretary of State for Scotland, and was afraid he would have the same difficulties to contend with as the Lord Advocates always had. " A Lord Advocate," he said, " is a benevolent despot to the Scottish Members. He does the best he can for them ; but he is never in a position to put sufficient pressure upon the Home Secretary to obtain justice for Scotland." He ended his speech by saying that if Parliament was not prepared to divide its time fairly between the different countries, there must be " some sort of Home Rule." 312 THE LORD ADVOCATES OF SCOTLAND Mr. Duncan McLaren pressed for the appointment of a Scottish Secretary, and went into an account of Lord Eglin- ton's Association. 1 " From that time," he said, " although the question has been allowed to smoulder, it has never been buried, and I believe it never will be buried." Scotland, he declared, was " far behind England in legislation." Lord Advocate Watson then spoke. Having, he said, been hardly ten days in the House, he thought it would be bad taste in him to give an opinion as to the conduct of Scottish business. But, in answer to what Mr. McLaren had said, he denied entirely that England was ahead of Scotland in regard to legislation. ' ; Having," he said, " a tolerably intimate acquaintance with the statute book, I am totally unable to give assent to that proposition. It may be exceedingly unpatriotic of me to refer to these things ; but when it is broadly stated that we are so much behind, I feel as a Scotsman bound to rise and state, accord- ing to my knowledge, so far as it goes, that that statement in its broad terms can scarcely be accepted." Mr. Cross, the Home Secretary, had made up his mind that the Lord Advocate's office was to be deprived of part at least of its old importance ; and in the course of this debate he had an opportunity of explaining his views. Mr. Barclay, the Member for Forfarshire, having said that all business affecting Scotland was in the hands of the Lord Advocate, Mr. Cross interposed sharply, " I have charge of these matters " ; on which Mr. Barclay said that if that was the case the Scottish Members would in future go to the Home Office when they wanted anything done. This brought up the Home Secretary, who stated that he desired it to be understood in future that he was the Minister answerable for Scottish business. " Unfortun- ately," he said, " hitherto the office of the Lord Advocate has been in a different building from the Home Office ; and the result has been that many applications in respect of Scottish business have been made to the Lord Advocate which ought to have been made to the Home Office, and have 1 Supra, p. 184. WILLIAM WATSON 3i3 not been brought to my cognizance. I can assure honour- able Members that any applications relative to Scottish business made to me at the Home Office will receive my prompt attention." After this the office of the Lord Advocate in Spring Gardens was abolished ; and three rooms in the Home Office were set apart for the Lord Advocate, his secretary, and a clerk. Next year Mr. Cross brought in a bill for the appointment of an Under-Secretary of State for Scotland, which was read a second time in the middle of the night without any explanation. Though the few Scottish Mem- bers present wished to hear the views of the Home Secretary, and complained of the way in which the Government was treating them, there was no moving Mr. Cross ; but in the end nothing more was heard of this bill. The Government was now fighting for its life ; not against hostile votes in the House of Commons, for there the Ministers were supported by large majorities, but against the agitation in the country on the question of the East, their support of Turkey against Russia, and the various points of their foreign policy, which were attacked by the Opposition. It was in August, 1879, when the controversy over the foreign policy of the Govern- ment was raging, and Mr. Gladstone was preparing for his descent upon Midlothian, that, as we have seen, Lord Gordon of Drumearn died. His place among the Lords of Appeal was not immediately filled ; but when Parliament was dissolved in March, 1880, and the general election began. Lord Advocate Watson was not a candidate. The battle having gone against Lord Beaconsfield. his Cabinet met for the last time on the 21st of April ; and seven days later Mr. Watson became a Lord of Appeal as Baron Watson of Thankerton. On the 7th of May, 1880, little more than twenty years from the time when he was waiting, almost without hope, for business in the Parliament House at Edinburgh, ne entered the dim splendour of the House of Lords 314 THE LORD ADVOCATES OF SCOTLAND clad in his robes as a peer, between Lord Hatherley and Lord Blackburn, preceded by the Gentleman Usher of the Black Rod, Garter King at Arms, and the Earl Marshal, and, having presented his patent on his knees to the Lord Chancellor on the Woolsack, took his place among the barons of England. If he had made no name as Lord Advocate of Scotland, he was to make a great one in the final courts of appeal at Westminster. " The English bar," says Lord Macnaghten, which is, I think, as critical and Conservative as it is really generous, watched with curiosity, not perhaps unmixed with some feeling of amusement, the advent of a Scottish barrister who seemed prepared quietly and without ostentation to fall in line and to stand shoulder to shoulder with them. It was not long before the attitude of the bar, reserved, perhaps, at first, changed to admiration and respect. ... If one may form a conclusion from the deference which has long been paid to his opinions by English judges, by the highest courts of appeal of our own colonies, and even by the supreme court of the United States, that position is assured." His work on the bench was beyond all praise ; and his reputation grew till at last he was esteemed the most profound lawyer in the kingdom. The present Lord Chancellor Haldane says that once, when the English bench was very strong, he asked Lord Bowen whom he took to be the greatest lawyer upon it, and he answered " Watson." Pages of testimony by competent witnesses to the same effect might be quoted. For nineteen years he filled his station as a judge in the two courts of last appeal ; and on the 14th of September, 1899, he died at Sunlaws House near Kelso. His place among the Lord Advocates is not conspicuous ; but in the House of Lords, to which Scotland had not given of her best till he went there, and in the greatest of all courts of law, the Judicial Committee of the Privy Council, he had, it may almost be said, no rival. " He was," Lord Haldane wrote soon after his death, " a great servant of WILLIAM WATSON 315 the Empire. He did much to make stronger one of the real links which bind and unite its parts. Not many of those who talk glibly about Imperial Federation take the trouble to turn into the shabby doorway at the Whitehall end of Downing Street, and go up the worn, lead-covered stair, through the faded red certains into the plainly furnished room where the supreme tribunal of the Empire sits. Had they gone there any time during the last fifteen years, they would have beheld at his best one of the greatest lawyers that ever sat upon the British bench, devot- ing his splendid powers to the spread throughout that Empire of faith in the justice of the Queen." CHAPTER IX john mclaren TN public life Mr. Duncan McLaren always seemed to -■- those with whom he fought so many fierce battles, and most of all to the Whig party in Scotland, to be nothing but a cold, hard, bitter partisan, the very embodiment of political dissent and provincial radicalism in their most aggressive forms. But at the very time when he was ruth- lessly breaking away from old friends, trampling down all who stood in his way, attacking Macaulay, driving out Mr. Adam Black, and undermining Mr. Moncreiff's influence, his domestic life was singularly peaceful. The marriage to Miss Priscilla Bright, his third wife, which took place soon after the stormy election of 1847, and about three years before that other election of 1852 which caused so much bad blood in Edinburgh, was in all respects fortunate. The favourite sister of Mr. John Bright, for whom she had kept house for some years before her marriage, she was a woman of such tact and good feeling that three families — the children of Mr. McLaren's first two mar- riages and of his marriage to herself — were brought up so successfully that her own youngest daughter was thirteen years old before she learned accidentally that she was only half-sister to the others. At the time of this third marriage Mr. McLaren's eldest son, John, born at Kamsay Gardens, Edinburgh, on the 17th of April, 1831, was nearly eighteen. 1 When he was about 1 His mother was Miss Grant Aitken, youngest daughter of Mr. William Aitken, merchant in Dunbar, whom Mr. Duncan McLaren married in 1829. She died in 1833. The second marriage, in 1836, was to Miss Christina 316 john McLaren 317 twelve years old a bad wetting had brought on a serious illness. The doctors gave him up ; but his father, who was nursing him night and day, refused to believe that there was no hope, took the case into his own hands, and gave him a quantity of wine when he was at the point of death. He was implored to let the boy die in peace ; but this treatment, instead of killing him, apparently saved his life, though the illness left traces in a thin, small frame, delicate lungs, and a cough which never left him for the rest of his days. In his boyhood John McLaren was never strong enough for school, and was educated at home. Long afterwards he put on paper some recollections of his early years, which show how soon he was trained to take an interest in public affairs. "From 1841 to 1844," he says, "being unable to attend school or leave the house in the winter months on account of illness, I was a good deal with my father in the evenings. He wrote much for the press. . . . He was accustomed to hand me the sheets of MS. to look over as he wrote them, and in this way I came to know about Edinburgh politics and finance, the management of the police and the Infirmary, National Education, and the various notes of the ' drum ecclesiastic,' which in those days conspired to distract the public attention from the real and pressing necessities of the illiterate poor." His father, who was now in the full swing of the free trade movement, took him to a public meeting in the newly opened Music Hall at Edinburgh, where he heard speeches by Mr. Cobden and Mr. Bright. " Cobden," he says, " was my father's guest on this occasion, and his visit was the foundation of an intimacy which lasted through life." The Whigs were not yet con- verted to the total abolition of the corn laws ; and we may be sure that one of the lessons taught to young McLaren by his father was that a Whig was even more dangerous Gordon Renton, youngest daughter of Mr. William Renton of Edinburgh. She died in 1841. A child of this marriage was the late Dr. Agnes McLaren. Charles Benjamin Bright McLaren, now Lord Aberconway, and the late Mr. Walter Stowe Bright McLaren, M.P. for the Crewe division of Cheshire, were children of the third marriage, which took place in 1848. 318 THE LORD ADVOCATES OF SCOTLAND than a Tory, and that of all Whigs the most dangerous was Macaulay. In 1844 the father and son went to Madeira, at that time the chief resort for persons suffering from weak lungs, and travelled home by Spain, Italy, Switzerland, and Germany. A few months after their return to Scotland there was another failure of health ; and for the next two and a half years John McLaren lived abroad, returning about the time of his father's marriage to Miss Bright. " There is no doubt," he says, "as to the powerful influence my present mother exerted in strengthening and refining the intellectual char- acter of my father, an influence which was not less beneficent towards the members of his family." Four years later Mr. Duncan McLaren bought Newington House, on the south side of Edinburgh, where he often enter- tained his brothers-in-law Mr. John and Mr. Jacob Bright, and other political allies, and to which at one time letters to Mazzini used to be addressed by his friends in Italy. This centre of Scottish radicalism was Mr. John McLaren's home during the next few years. His health having much im- proved he was now attending the University. In Scotland the Parliament House had always been the favourite gateway to public life ; and his training had naturally turned his thoughts in that direction. So he prepared for the bar by hearing lectures on law, and speaking at the Scots Law Society, which he joined in November, 1854. He passed as an advocate on the 6th of December, 1856, took rooms in Darnaway Street, joined the Juridical Society, of which he was librarian for some time, and worked indus- triously. In a short time he published two books — a pains- taking and useful collection of procedure acts, and a "Treatise on the Law of Trusts and Trust Settlements." These publications gained him some little credit, which he increased by preparing an edition of the lectures on the Law of Scotland delivered by Professor More, under whom he had studied at the University of Edinburgh. 1 This work also 1 John Shank More, advocate, was Professor of Scots Law from 1843 till his death in 1861. Mr. McLaren's edition of his leotures was published john mclaren 319 attracted attention ; but in those early years he was chiefly known as a quiet student, whose delicate constitution would always, it was thought, keep him back in a profession which requires considerable strength of body as well as mind. It had been supposed by some, who did not understand the manners and customs of the bar, that, seeing whose son he was, he might find the Parliament House rather a den of lions ; but he went there on his own merits, and " Johnny McLaren " was soon a general favourite. Just at the critical point of his career his health once more gave way, and he had to spend a winter in Algiers. On his return he found that his absence had injured his prospects so much that it seemed as if he could never recover the lost ground. But he immediately sat down to write a treatise on " The Law of Scotland relating to Wills," for which he had already laid the foundations in his volume on trusts. He devoted himself to his new labours with intense applica- tion, read and wrote assiduously, and at last actually went the length of sitting up the whole of every alternate night till he had finished his task. This was of course a very dangerous mode of life for so delicate a man ; but the result was an elaborate work which at once brought his name prominently before the legal profession, and is still (in its third edition, published in 1894) recognized as a leading treatise on the subject with which it deals. This work appeared in 1868 ; and on the 14th of December in that year the author was married to Miss Ottilie Schwabe, daughter of Mr. H. L. Schwabe of Glasgow. This marriage brought him little or no increase of means, and he continued to live for some time with his bride in the chambers where he had spent so many long hours working at his books ; but in January, 1869, he received the appointment of Sheriff of Chancery, a semi- judicial office, with a salary of £500 a year, which had been created by Lord Advocate Rutherfurd in 1847. 1 !n 1864. There is a short memoir of Professor More, written by Dean Ramsay, in the Proceedings of the Royal Society of Edinburgh, 1861. 1 By the Service of Heirs Act, 10 & 11 Vict. c. 47. 3 20 THE LORD ADVOCATES OF SCOTLAND By this time Mr. McLaren, though not in large practice, was a very learned lawyer, with great experience in writing and editing legal works, and fully equal to his next under- taking, which was the preparation of a new edition of the " Commentaries on the Law of Scotland," which were first published by George Joseph Bell, Professor of Scots Law at Edinburgh, in 1810. The last reliable edition of the Commentaries — the fifth, edited by Professor Bell himself — was published in 1826. Since then there had been great changes in the law. To bring the work up to date was Mr. McLaren's object ; and this he did with such skill that it was said at this time that, though he could not have written the Com- mentaries, there were few men, perhaps not even Professor Bell himself, who could have annotated them so well. The two massive volumes, which issued from the press in 1870, bore witness on every page to the trouble he had taken. His notes were concise and clear ; and here and there he inter- polated, carefully distinguished from the text of 1826, passages of his own, showing the state of the law at the time he wrote. One of these original passages, on the law of property in shipping, may be mentioned as a good example of his thorough workmanship. 1 The party creed of most men depends, like their religion, on the atmosphere in which they spent their early days. Mr. McLaren had been brought up in a school of radicalism and dissent of the strictest type. He went to the Parlia- ment House as a Radical. He and Mr. Francis Brown Douglas (who had opposed Mr. Adam Black when he first stood for Edinburgh) were the only two members of the bar who went on the hustings with Mr. Duncan McLaren and Mr. Miller at the election of November, 1868. But his patient study, when tracing the history of legislation and of legal decisions, had been fruitful of new ideas. His mind was naturally judicial ; and he had acquired the habit of looking at both sides of every question. " Never assume that your party is right, merely because it is your party," was one of 1 Vol. i. pp. 159-175. john McLaren 321 his favourite maxims. Though born a Radical, he never despised the hoarded wisdom of the Whigs, with whom he had a great deal more in common than he ever got credit for, except amongst a few young men with whom he was in the habit of talking politics in the Parliament House. He was as firmly convinced as any Whig that Macaulay had been right when he said that though it was possible to make the rich poor by legislation, it was impossible to make the poor rich. He had none of that unbounded confidence in the wisdom of the lower orders, which some of his friends professed, and dreaded the time when they might discover that, if united and thoroughly organized, they would be an irresistible majority of the nation. He feared that, if such a time came, unless the masses were wisely led, and if politicians, in order to win votes, yielded to all their demands, there would be an end to liberty in this country ; and in the year 1873 he had the satisfaction of seeing his father firmly resisting the repeal of those provisions of the Criminal Law Amendment Act which were intended to pre- vent the coercion of working-men by the trades unions. The working-men who presented addresses to Mr. Disraeli during his visit to Edinburgh in 1867 had asked him to legislate on the subject of combinations. " Upon that question," he had answered. " I would simply say that if the working-men come forward and ask Parliament to consider their case, then I think we should say, ' Let the whole question be considered, do not practically interfere for any particular object, but so legislate, if you must legislate, that the working-men of Britain shall be able to assert their rights, and at the same time fulfil their duties.'" But this was not enough to satisfy a section of the new electorate which was now in possession of so much power. The right of the working-men to refuse their labour, and to combine in doing so, had not been called in question for many years ; and the outcry against the picketing clauses of the Criminal Law Amendment Act was nothing less than the assertion of a right to interfere with the freedom of Y 322 THE LORD ADVOCATES OF SCOTLAND individuals, to deprive the workman and his employer of liberty to make such contracts as they pleased, and to for- bid any labouring man to earn his bread during a strike, or to accept a scale of pajmient to which the trades unionists might object. Mr. Duncan McLaren remembered the reign of terror in the 'West of Scotland during the domina- tion of the Cotton Spinners' Association ; and the recent exposure of trade outrages at Sheffield, Manchester, and other towns, proved that the spirit of brutal tyranny was still rampant amongst the labour agitators. An attempt was now made to intimidate him. His opposition to the repeal of the laws against picketing, which he well knew always had meant, and always would mean, threats and personal violence, raised a storm. He had been one of the Tea Room party, which helped Lord Derby and Mr. Disraeli to " dish the Whigs " by refusing to support Mr. Gladstone's amendment substituting a £4 rating franchise for that lower- ing of the voting power almost to the foot of the social scale on which the Conservative party so strangely staked its own fortunes and the future of the country. This, Mrs. McLaren once wrote, was a great triumph for the working- men ; but now working-men were calling her husband a traitor and a shuffler, and a vote of no confidence was carried against him at a public meeting, while his colleague, Mr. Miller, who had taken sides with the agitators, was effusively thanked and praised. The effect of this independent stand was that at the general election of 1874 the Whigs rallied to the support of Mr. Duncan McLaren, and worked in harmony with those Radicals who had not deserted him. The Moderate Liberals nominated the Lord Provost of Edinburgh, Mr. James Cowan, and divided their votes betw een him and Mr. McLaren ; and these two candidates were, in spite of determined opposition by the Trades Council, elected by a large majority, with Mr. Miller third on the poll, only a few hundred votes above Mr. Macdonald (afterwards Lord Justice Clerk), who had fought a spirited but always hopeless battle for the Conservative john McLaren 323 party. One result of this election was that in Edinburgh the Liberals became practically united. The chief Liberal Whip during the years which followed was Mr. William Patrick Adam of Blair Adam, Member for Clackmannan, and Kinross, who had succeeded that other famous Whip Mr. George Glyn, when he went to the Upper House on the death of Lord Wolverton. During the general election of 1874, when the Liberals had been so heavily defeated in England and seriously crippled in Scotland, it had been seen that the party organization was inadequate ; and, perhaps as a natural consequence of the extension of the franchise, the principle of popular representation began to extend to the conduct of local party affairs. Hitherto these had been managed by small coteries, consisting of a few persons who were either self-elected or nominated by the sitting Member on the advice of his chief supporters. But now " Associations," as a rule more or less popularly elected, were formed in the constituencies, and the old system came to an end. Two Associations embracing the whole of Scot- land, one for the east and north, and the other for the south and west, were formed. The Association for the north and east, of which Lord Bosebery was President, may almost be said to have had the Parliament House for its headquarters. A small group of the junior bar acted under the guidance of Lord Bosebery and Mr. Adam, with a very competent secretary, Mr. John James Beid, whose father had been one of the Whigs who organized the Grey Festival in 1834, and whose brother was afterwards, as Baron Loreburn, Lord Chancellor of England. But the only senior counsel who took any really active part in the re-organization of the Scottish Liberal party between 1874 and 1880 was Mr. John McLaren, who gave almost as much time to his political activities as to his professional work. The abolition of patronage was, as we have seen, immedi- ately followed by an agitation for disestablishment ; and during the next few years this movement became formidable. The policy of Dr. Bainy, the Free Church leader and the life and soul of the whole movement, seemed to be that while 324 THE LORD ADVOCATES OF SCOTLAND Mr. Gladstone, on whom his hopes were set, was to have his hands left free, every other Member of Parliament, parti- cularly every Scottish Member, was to be pressed to join the attack on the Church. The result was that, under con- tinuous solicitation and hints of opposition, Members were pledging themselves, in all parts of the country, to vote for disestablishment. The Liberal Churchmen — no mere phrase this in Scotland — became alarmed ; and it was felt that some official statement must be made by Lord Hartington, who had become leader of the party on the retirement of Mr. Gladstone (January 1875). Otherwise there might be serious defections. Fletcher of Saltoun once said that in Scotland a Whig was a man who " would sacrifice his all for the Church and a little less for the State." A Whig might, in the nineteenth century, support disestablishment, with the object of making the National Church, in the widest sense of the words, stronger in the end ; but he would never do so for party reasons. The leaders of the disestablishment move- ment, however, believed that the Liberal Churchmen, if sufficient pressure was put upon them by their party leaders, would " toe the line," as it is called nowadays, if disestab- lishment was made a part of the official policy by Lord Hartington. This was very far from being the case, as Mr. Adam knew. The difficulty was to find a formula which would satisfy both the Churchmen and the noncon- formists ; and when it was arranged that Lord Hartington should come down to Scotland in November, 1 877, the astute Whip had no lack of counsellors. One of those whom he con- sulted was Mr. John McLaren, who suggested almost the very form of words afterwards used by Lord Hartington. Threats, too, were used ; and Mr. Adam was told that if his party did not pronounce for " disestablishment and disendowment," there would be opposition to his candidates at the next general election in some places, while in others the non- conformists would abstain from voting, or even support the Conservative Government. To the last, within a few hours, indeed, of the time when Lord Hartington was to john mclaren 325 speak, letters of advice and warning poured in upon him, and even, though they had no voice whatever in the matter, upon his subordinates in the Parliament House. On the 6th of November (1877) Lord Hartington was in Edinburgh, where in the afternoon he received addresses from various " Liberal Associations," some of which were presented by Mr. McLaren and Mr. Alexander Asher, after- wards Solicitor- General for Scotland. In the evening there was a great public meeting. Lord Rosebery was in the chair. <£ You ask," he said, " what is this broad principle of Liberalism which we ought to support ; and without regarding too strictly the various shades of opinion which prevail, I would venture to offer a definition." Here he paused. Not yet the experienced and ready " public orator," he hesitated and had to consult his notes ; but after a moment or two he continued, " I believe that Liberalism is the principle in politics that neither class, nor creed, nor privilege shall hinder the progress of our natural develop- ment." Since 1867, he said, the whole Tory policy had been to dish the Whigs : " My Lords and gentlemen, we can say on behalf of our Association to-night that our policy, as opposed to that, is that the Whigs shall not be dished." When the sagacious Whig leader rose he lost no time before explaining his views on the Church question. The bill abohshing patronage was, he thought, a great step towards disestablishment. " Scottish public opinion has never been miequi vocally expressed upon this question. It has not, so far as I am aware, been made a test question at elections " ; and he hoped it would not be made one in the future. Then came the statement for which every one was waiting : " All I can say is that when, if ever, Scottish public opinion, or even Scottish Liberal opinion, is fully formed upon the subject, I think I may venture to say, on behalf of the Liberal party as a whole, that it will be pre- pared to deal with the question upon its merits, and without reference to any other consideration." The question of disestablishment was, in short, to be an open question ; and 326 THE LORD ADVOCATES OF SCOTLAND the people of Scotland were to discuss it amongst themselves. Apart from the Church question, there had been consider- able, and for a time very serious, differences of opinion in the Scottish Liberal party ever since Mr. Gladstone reappeared as an active politician, and began his momentous crusade against the eastern policy of the Government. It was feared that the party would soon split into two factions, one following Mr. Gladstone, and the other taking the more cautious line favoured by Lord Hartington. And at the same time there were in Scotland many active supporters of the extreme radicalism which Mr. Joseph Chamberlain was preaching at Birmingham. At this meeting, however, all sections of the party were represented. 1 About a month later Mr. Gathorne Hardy went down to Edinburgh, and, in a speech to a meeting of " Conservative working-men," replied (December 10, 1877) to Lord Harting- ton. Lord Hartington had treated the question of the Church as a purely Scottish question, which the people of Scotland must decide for themselves ; but Mr. Hardy would not agree to this, and said that the Church of Scotland must be maintained as a bulwark of the English Establishment. This revealed a danger to which the English Liberals would be exposed at the next general election if their leaders com- mitted themselves to disestablishment in Scotland ; for, if they did so, a cry would be raised that the Liberals must be kept out in order to protect the Church of England. The party managers in Scotland, therefore, resolved to " gang warily 99 ; but the general effect of Lord Hartington's speech was to encourage the friends of disestablishment, and to increase the uneasiness of the Liberal Churchmen, who began to fear that the time had almost come when they must choose between their party and their Church. Some months later Mr. Gladstone put the issue clearly before them. " The 1 The Earls of Camperdown, Elgin, and Minto,Lord Abercromby and Lord Napier and Ettrick, were among the Liberal peers who attended ; and speeches were made by Viscount Macduff (the future Duke of Fife), Sir Robert Anstruther, Mr. W. E. Baxter, Mr. Duncan McLaren, and Mr. John Blair Balfour, afterwards Lord Kinross. john mclaren 327 Established Church of Scotland," he said in the House of Commons (June 18, 1878), " must stand or fall according to the general convictions of the people of Scotland." When the year 1878 began public feeling in England was still, on the whole, on the side of the Government, though large gatherings in various places were protesting against that war with Russia for which some of the Ministers were apparently ready ; but in Scotland the Opposition was gaining strength every day, and it was thought that Lord Hartington might be at the head of a Liberal administration within a very short time. It was natural, therefore, that there should be some speculations in the Parliament House about how various legal offices would be filled if there was a change of Government ; and Mr. McLaren was now, for the first time since he came to the bar, spoken of as a possible Lord Advocate. His practice was not nearly so large as that of the principal leaders on the Liberal side ; but he was their senior, and had of late taken such an active share in party business that his claims to office could not be ignored. It was certain that Mr. Bright's influence would be used on his behalf ; his father had now a very commanding position amongst the Scottish Members ; and Mr. Adam had found that, while some very eminent counsel gave him no encouragement in his preparations for the next trial of strength, and seemed, indeed, afraid to commit themselves, Mr. McLaren was always ready with advice and valuable information as to the state of feeling in Scotland. In January, 1878, there was a vacancy in the Leith district ; and Mr. McLaren offered himself as a candidate, and went down to Leith to address a meeting of the electors. Sup- porters of the Government mustered in force ; trade unionists, who had not forgiven the " senior Member " for Edinburgh, were there ; and there was a strong feeling in the constituency against the Parliament House. The uproar was so great that Mr. McLaren, when he rose to make his speech, could not be heard for some time. But remembering, as he after- wards said, how Mr. Bright had once told him that the best way to deal with a turbulent audience was to continue 328 THE LORD ADVOCATES OF SCOTLAND speaking and take no notice of interruptions, he went on, and at last obtained a quiet hearing. He made such a good impression that a strong committee was formed to promote his return ; but this candidature came to nothing. He had already put his resignation of the office of Sheriff of Chancery in the hands of his father, who was in London. But though old Mr. McLaren had told him to go on with the contest if he once began, he changed his mind, and wrote a letter so full of objections that his son felt he must retire, though it was all but certain that he would be elected. 1 Then came that year of turmoil, when the country, which during the last Parliament had been alarmed and wearied by the domestic policy of Mr. Gladstone, became alarmed and wearied by the foreign policy of Lord Beaconsfield ; and in January, 1879, Mr. Gladstone, who had announced that he would not again stand for Greenwich, accepted the invitation to Midlothian. A year before, on the death of Sir William Stirling Maxwell, Mr. Charles Parker had written to Mr. Gladstone suggesting Perthshire ; but he had replied that he would not resign his seat to fight a by-election. 2 One of the seats for Edinburgh was offered ; but Midlothian was chosen as the field on which the deciding round of the long battle between Lord Beaconsfield and Mr. Gladstone was to be fought out. In England the Liberal press applauded Mr. Gladstone for " courage " in opposing Lord Dalkeith in Midlothian, while the Conservative press accused him of " audacity." The territorial influence of the Duke of Buccleuch was certainly strong, and he was deservedly popular as a landlord. But this was, to a great extent, neutralized by the influence and popularity of Lord Rosebery and Lord Stair. The county, 1 The Liberal candidate, Mr. Andrew Grant, was returned by a majority of nearly 3,000 on January 29, 1878. 2 The city of Perth was also vacant at that time, the Hon. Arthur Kinnaird having succeeded to the peerage ; and Mr. Parker, who had lost the county in 1874, was elected on January 29, 1878. The county election ended in the election of Colonel Home Drummond Moray, who defeated the Liberal candidate, Captain the Hon. Fulke Greville, afterwards Lord Greville, on February 4. john mclaren 329 moreover, was scarcely such a " Tory stronghold " as was supposed. There had been four contested elections between 1832 and 1868 ; and of these the Conservatives had won two, and the Liberals two. The Liberals had carried the seat in 1868 ; but they lost it in 1874, owing to the com- plete want of organization. The register had been neglected, and all was chaos. A frantic effort was made at the last moment by a few volunteers from the Parliament House, who were asked to see if nothing could be done to save the seat. But it was too late ; and even then Lord William Hay, the Liberal candidate, was only 135 votes behind Lord Dalkeith. Since 1874 the constituency had been thoroughly organized. There was a " Midlothian Liberal Associ- ation," with Lord Rosebery as President, and a very active committee in every parish. Every elector in the county had been canvassed ; and elaborate calculations showed that, after giving all the doubtful votes to Lord Dalkeith and deducting five per cent, from the estimated strength of the Liberals, there was a majority of 206 for Mr. Gladstone. Mr. Adam laid these figures before Mr. Glad- stone, who, after a second canvass of certain districts, to make assurance doubly sure, accepted the invitation on the 29th of January, 1879. From the first there was very little doubt of what the result would be amongst those who knew how matters really stood ; and there was nothing very extraordinary in an eminent Scotsman standing for an important Scottish con- stituency. But Mr. Gladstone had filled so large a place in history, and played so many parts, that the question was immediately asked : Why is he coming to Scotland after all these years ? There must be some very special reason. Some very special stroke must be intended. Some dark and sinister design must have been formed. He can have no per- sonal antipathy to the Duke of Buccleuch, his old colleague in the days of Sir Robert Peel. His friendship for Lord Rosebery does not explain the move. It is not enough to say that he wishes a conspicuous platform from which to 330 THE LORD ADVOCATES OF SCOTLAND arraign the policy of Lord Beaconsfield. That could have been found as easily in England. There must be some other explanation of this new departure ; and the only explana- tion is that he is coming to Scotland because he has made up his mind to disestablish the Scottish Church. It was noticed that at Leeds, a few days before the invitation to Midlothian was accepted., a large conference of Liberals had declared for disestablishment in Scotland, which they imagined would unite the party at the next general election. The question, they had said, was " ripe for immediate practical action " ; and messages were sent to Lord Granville and Lord Harrington, as the Liberal leaders in the two Houses of Parliament, declaring that it ought to be included in the official programme of the party. The effect of all this was that the Liberal Churchmen in Scotland became seriously alarmed, and sent a deputation to Mr. Adam in the spring of 1879, to ask for a definite assurance that the Liberal leaders, if returned to power, would not bring in a measure disestabhshing the Scottish Church until the question had been put to the people of Scotland as the main issue at a general election. They were satisfied with what he told them ; but the disestablishment party, who were always trying to use the Liberal organ- ization for their own purposes (to " capture " it, as it was called) became in their turn alarmed. Dr. Rainy — most of the laity were quite indifferent, and the movement was mainly clerical — wrote to Mr. Gladstone expressing an apprehension lest the Liberal leaders should pledge them- selves not to raise the question during the next Parliament, and received an answer which clearly proved that, though he adhered to Lord Harrington's statement, Mr. Gladstone would promise nothing. " I cannot profess," he said, " that in the present condition of Imperial afiairs, it occupies the first or nearly the first place in my mind." In these circumstances both parties av. aited Mr. Gladstone's advent to Midlothian with mingled hopes and feais. The first "Midlothian campaign," which has been so often described, began with a meeting at Edinburgh on john McLaren 331 the 25th of November (1879), at which Mr. McLaren was put up to move the vote of thanks to Mr. Gladstone ; and at Dalkeith, on the following day, Mr. Gladstone made his state- ment on the Church. " The question/ 5 he said, " directly raised is this : May the members and ministers of the Established Church of Scotland trust, make themselves assured, that, so far as there can be any certainty of what is future in human affairs, there will be a full consideration of this matter by the people before the Parliament which has to deal with it proceeds to deal with it ? Lord Sahsbury says. No, see what happened in the case of the Irish Church." Then he proceeded to defend his policy in Ireland, and gave that unlucky explanation, which was so often quoted against him, that the breaking down of a prison in London, and the murder of policemen in Manchester, brought the question of the Irish Church within the range of practical politics. Resolutions condemning the Irish Church were, he pointed out, carried in the House of Commons ; but there was a dissolution expressly on the question. ; ' The verdict of the country was given only after a full trial and consideration : and this is what the Established Church of Scotland fairly and justly asks." This made the Liberal Churchmen fear that, though no bill for disestablishment would be brought in during the next Parliament, the question might possibly be raised by resolutions ; and there was an uneasy feeling that, though disestablishment might not have been a main issue at the elections, the votes of the Scottish Mem- bers might be held to represent the wishes of the Scottish people. A memorial explaining the difficulty the Liberal Churchmen would have in supporting the Liberal candidates was, therefore, sent to Mr. Adam, whose answer was that he could not understand what madness of suspicion n possessed them, and that he did not feel justified in advising Mr. Gladstone to add to or subtract from the words he used at Dalkeith/ " And there the matter rested till the general election of 1880. Meanwhile, long before the first Midlothian campaign, 332 THE LORD ADVOCATES OF SCOTLAND Mr. Adam had found candidates for most of the constituencies in Scotland ; and among them the Parliament House was re- presented by Mr. John Blair Balfour, Mr. Alexander Asher , and Mr. McLaren. Mr. Balfour, who shared with Mr. Asher the place which had once been filled by such men as Mr. Inglis,Mr. Watson and Mr. Young, had been chosen to contest North Ayr- shire, one of the seats lost by the Liberals at the last general election. Mr. Asher was to attempt the re-conquest of the Universities of Glasgow and Aberdeen. Mr. McLaren was going to the Wigtown district, which had been represented by Mr. John Mark Stewart since 1874, and where a very close fight was expected. 1 Mr. McLaren finished his public work for the year with an address to the Scottish Chamber of Agriculture on a topic in which he took far more interest than in disestablishment — the land laws. In this address — the subject is very much alive at present — he laid down two principles. First, free scope should be given to all the forces which led to the acquisition and dispersion of land, avoiding all direct interfer- ence with these forces . " My second principle , " he explained , " is the removal of the existing obstacles to free contract between landlord and tenant, and the placing the parties, as far as possible, in a position of such independence that they can contract on equal terms." He said it was a remarkable fact that in France and America, where the economic dis- tribution of land had free play, the two classes of landowning farmers and tenant farmers flourished side by side, each con- tributing in his own way to the development of agricultural industry, and neither being able to drive the other out of the field. From this he drew the conclusion that to have the two systems of land tenure, which he called having mixed tenure, was natural and best. He suggested that the farmer with large capital would generally prefer to own his farm, so as to secure in perpetuity the full value of the im- 1 After the general election of 1874, when Lord Advocate Young was de- feated, the judges had, on a scrutiny, unseated Mr. Stewart. Another election followed, when Mr. Stewart won by 8 votes. Again a scrutiny was demanded, and his majority was reduced to 2. john mclaren 333 provements he made ; while for the man with only small means the position of a tenant farmer would be preferable. " Holding as I do," he said, " that the development of agriculture will be promoted by the establishment of two classes of cultivators, freeholders and tenants, and that all legislative interference in favour of the one class or the other is a political mistake, the reform of the land laws embraces two objects which correspond to the propositions I ventured to state in the outset : First, free trade or freedom of exchange, as applied to the sale of lands, by the abolition of existing entails, and their prohibition in the future ; Secondly, free- dom of contract, or, to speak more accurately, equality of contract, between landlord and tenant, by the removal of all artificial preferences in favour of the proprietor. Such are the laws of hypothec and distress, and the rule that whatever is placed in or on the soil becomes the property of the proprietor." This address, delivered at a time of great agricultural depression, was well received by the Chamber of Agriculture. But it remained to be seen whether Mr. McLaren would have an opportunity of giving practical effect to his opinions in the House of Commons. 1 On the 8th of March (1880) Sir Stafford • Northcote told the House of Commons that the verdict of the country was to be taken immediately. Parliament was not dissolved till a fortnight later ; but by that time the general election had already begun, and Mr. Gladstone had opened fire at a 1 A friend of Mr. McLaren's, who examined the Register of Entails for him soon after this address, found that since 1848, the year of the Ruther- furd Act, there had been 616 new deeds of entail, and only 435 disentails. Mr. McLaren wrote saying that the chief reasons for the comparative inefficiency of the Rutherfurd disentailing clauses had been the necessity of purchasing the consents of expectant heirs when the entail was to be prematurely terminated, and the facilities for re-entailing an estate, and thus prolonging the entail for another generation. " It appears to me," he said, " that those incidents are inseparable from a system of entail law ; because to allow a settlement to be placed for a certain number of lives, and to allow that settlement to be broken without the consents of the expectant heirs, or compensation for the loss of their chances of succession, is either a contradiction in terms or a violation of the rights of property." 334 THE LORD ADVOCATES OF SCOTLAND meeting in the Music Hall at Edinburgh presided over by Mr. Duncan McLaren. Mr. Gladstone made it clear that the only issue he put be- fore the electors was whether they approved or disapproved of Lord Beaconsfield's policy at home and abroad ; but within a few days he found it impossible to evade the local question of the Church, on which he made yet another statement. There was, he said, no analogy between the Churches of Scotland and Ireland. The Church of Ireland he described as an alien planted by foreign force, while the Church of Scotland grew out of the soil, and instead of being forced upon the people, was forced by the people. The question could never be decided except by some strong and clear manifestation from the people of Scotland. " It is the people of Scotland to whom it has been referred. That reference must be a real reference. There must be a real consideration in order to a real decision. In my opinion it must be a manifest, and pointed, and undeniable decision, in order to bring about any fresh issue, or any great change in regard to the National Church." 1 This statement, based on the plain Whig principle that no irrevocable change, in the constitution or the law, should ever be made till the electors have distinctly said they wish it, seemed clear enough. But some of the Liberal Church- men remained perturbed. Dr. Tulloch said it was his sober opinion that unless there was a Conservative Government in power the days of the Church of Scotland were numbered. "I have no doubt," he wrote in April (1880), "that Mr. Adam and all the official wire-pullers are gradually tighten- ing the cords of strangulation round the old institution." In this he was mistaken. The real aim of those who were managing the affairs of the Liberal party was to put the question of the Church aside, to get rid of it. It was put aside ; and the general election became more and more a genuine party fight of the old-fashioned sort. Just as in England the nonconformist Achilles, tired of nursing his wrath, took down his spear and helmet from the tent-pole, 1 At Gilmerton, March 22, 1880. john mclaren 335 and stalked forth to battle, so in Scotland there was no hanging back of the Liberal host. Churchmen, Free Churchmen, and the " Voluntaries," fought side by side ; and though a majority of the Members they elected were in favour of disestablishment, there was no reason for saying that they represented the settled verdict of the Scottish people on that question. This was the last time that the Scottish Liberals were thoroughly united — for by 1885 many had come to the parting of the ways — and the enthusiasm for Mr. Gladstone far surpassed even the old enthusiasm for Lord Palmerston. The Conservative press was curiously weak in Scotland, and quite unable to cope with such papers as the Scotsman, the Glasgow Herald, the Dundee Advertiser, and the Aberdeen Free Press. The Whig peers and country gentlemen, the Liberal farmers, and the merchants, tradesmen, and artisans of the great towns, made up a formidable combination ; and the attack on Ministers was irresistible. In Midlothian Mr. Gladstone's majority was 211, almost exactly what had been predicted eighteen months before. 1 In Edin- burgh Mr. Duncan McLaren and Mr. Cowan polled almost the same number of votes, and defeated by a majority of more than 11,000 Mr. Macdonald, who had volunteered once more to lead a forlorn hope for his party. From the other towns no supporters of the Government were returned, and from the counties only six. At this general election the tide of Liberalism in Scotland rose to its highest mark. While the whole kingdom was watching the doings in Midlothian, Mr. Asher had lost his election for the Universities of Glasgow and Aberdeen ; and far away in the south-west Mr. Balfour and Mr. McLaren had gone through the usual routine of electioneering in North Ayrshire and the Wigtown district. Mr. Balfour's adversary was Mr. Cochran Patrick, a most able and popular county man, who won by 55 votes. 2 1 " 4 Drove into Edinburgh about four,' Mr. Gladstone records. ' At 7.30 Mr. Reid brought the figures of the poll : Gladstone, 1,579 ; Dalkeith, 1,368 ; quite satisfactory.' " — Lord Morley's Life of Gladstone, ,Bk. vii. ch. viii. 2 Mr. Robert William Cochran Patrick, afterwards permanent Under- Secretary for Scotland, died in 1897. 336 THE LORD ADVOCATES OF SCOTLAND In the Wigtown district the electors went with the flowing tide, and put Mr. McLaren at the head of the poll by a majority of 23. At the end of April, after Lord Hartington had stepped aside, the second Gladstone administration was formed ; and a Lord Advocate had to be appointed. It was rumoured that Lord Young wished to descend from the bench, and return to political life ; but this was clearly an impossible arrangement. Without doubt the two leaders of the Liberal side of the bar, in point of practice, were Mr. Balfour and Mr. Asher ; but they had both been defeated, which left Mr. McLaren the only Scottish lawyer with any pre- tensions to office who had a seat in Parliament. Apart from this, his seniority to Mr. Balfour and Mr. Asher, and his personal qualifications as an accomplished lawyer, to say nothing of the active part he had taken in promoting Mr. Gladstone's return for Midlothian and in the general business of his party, would have made it very difficult to overlook him. Some of the more rigid Whigs, on the bench as well as the bar, shook their heads when they heard that the son of their old enemy might receive the blue ribbon of the profession. Nominally at least a Radical, he would be the first Lord Advocate chosen out of a certain direct line of succession which had been tacitly recognized for the last fifty years. There was at first some uncertainty. If Mr. Balfour, Lord Moncreiffs son- in-law, had won North Ayrshire he would have secured the prize ; but Mr. Bright's influence was used in favour of his relative, who was appointed, with Mr. Balfour as Solicitor- General. Then came a series of electoral misfortunes similar to those which befell Lord Advocate Inglis. On going back to Wigtown for re-election on taking office, he found himself again opposed by Mr. Mark Stewart. The appointment of Lord Ripon, who had recently been received into the Roman Catholic Church, to the vice-royalty of India had given offence. Admiral Sir John Hay, who, it may be remembered, had a remarkable command of strong language, having just john mclaren 337 lost his own election at Stamford, gave vent to his feelings in a personal attack on the Lord Advocate, at whose friends and relatives in the House of Commons he sneered as a " happy family party," and, assisted by other means which were afterwards revealed when the election judges made inquiry, induced the electors to turn round and return Mr. Stewart (May 18, 1880). 1 The like ill-fortune pursued Mr. McLaren to another constituency. At the general election two Liberals, Sir Dudley Coutts Marjoribanks, afterwards Lord Tweedmouth, and the Hon. Henry Strutt, had been returned for Berwick- on-Tweed. In June Mr. Strutt succeeded to the peerage on the death of his father Lord Belper ; and the names of Mr. Henry Jerningham of Longridge Towers, Berwickshire, and Mr. McLaren were submitted to the electors. Mr. Jerningham retired, and advised his friends to vote for the Lord Advocate, who was opposed by Captain Milne-Home, who had been Member for Berwick-on-Tweed in the last Parliament, but had lost his seat at the general election. Local feeling ran high in favour of Captain Milne-Home, and he was elected. 2 In the first session of the new Parliament the law of agricultural hypothec, about which Mr. Gladstone had said a good deal in Midlothian, was abolished in the case of farms exceeding two acres ; and the old grievance of the hares and rabbits was partially removed by the Ground Game Act. But in consequence of his defeats Mr. McLaren had to perform his functions as Lord Advocate, and watch the course of Scottish business, without a seat in the House of Commons. If he had been cordially received by Sir William Vernon Harcourt it might perhaps have been more convenient for a Lord Advocate who was not in Parliament to work in the Home Office than in the old chambers at Spring Gardens. But there was friction between them from the first. The 1 This election was declared void on petition, and Mr. Stewart was unseated. 2 Captain Milne-Home was a grandson of Admiral Sir David Milne. Supra, p. 29. Z Jf 338 THE LORD ADVOCATES OF SCOTLAND Home Secretary detested the school of radicalism of which Mr. Duncan McLaren was a leader, and was inclined to treat his son as an interloper who ought not to have been given a place in the Government. The Lord Advocate, too, had unwittingly run counter to Sir William's wishes soon after the administration was formed. While he was in the Wigtown district for his second election the Ministers were considering their Ground Game Bill. There was a difference of opinion between Mr. Gladstone and the Home Secretary. Neither would give way ; and it was agreed to send for the Lord Advocate, and abide by what he said. Mr. McLaren left his election and went up to London, where he was called to a meeting of the Cabinet, and had the point in question put to him, without being informed of the disagreement between the Prime Minister and the Home Secretary. He gave his opinion, which happened to agree with that of Mr. Gladstone ; and Sir William Harcourt had to accept it. This was just one of those trifling incidents which might irritate a man of Sir William's temperament. In any case, it was for various reasons unlikely that they would ever be in harmony. They had nothing whatever in common except that they were members of the same Government. Parliament rose, after an anxious summer for the Lord Advocate in his three rooms at Whitehall, on the 27th of August. Three months later Mr. Adam, who had been appointed Governor of Madras, sailed for India ; and Mr. Balfour succeeded him as Member for the counties of Clackmannan and Kinross. 1 This made the Lord Advocate's position even more awkward than before. The Scottish Members had been com- plaining of his absence from the House of Commons, as they 1 Mr. Balfour had been one of the deputation to Mr. Adam on the Church question (supra, p. 330), and when standing for North Ayrshire at the general election he had avoided the question of disestablishment. But in his address to the electors of Clackmannan and Kinross he said that he was ' ' now convinced, by the combined force of many considerations, that dis- establishment would be a measure of justice." Liberal Churchmen were surprised at this change, and still more at his refusal to say how he would vote if a resolution in favour of disestablishment was moved in the House of Commons ; but he was not opposed. john mclaren 339 had formerly complained of the absence of Mr. Patton and Mr. Gordon, and might soon begin to ask why he should re- main in office, when the Solicitor-General was in Parliament and ready to take his place. From this dilemma he was rescued by a transaction about which there was something almost pathetic. Old Mr. Duncan McLaren's face was still as bleak and inscrutable as ever, and his radicalism remained unchanged ; but time had somewhat mellowed him, and few men in the House of Commons, where he had done much useful work, were more respected. He had no wish to retire till the end of that Parliament ; but he now resolved to sacrifice himself for the son whose life he had saved in childhood. On the 17th of January (1881) he informed Lord Richard Grosvenor, who had succeeded Mr. Adam as Liberal Whip, of his intention, and on the same day wrote to the Chancellor of the Exchequer asking for the Chiltern Hun- dreds. Then, and not till then, he told his son what he had done. Two days later the Lord Advocate's address to the electors of Edinburgh was issued. 1 Mr. Duncan McLaren was im- mediately attacked by some of the Radicals, who said that to bring in a member of the Government, just because he was his own son, was a " trick," and unworthy of the man who had driven out Macaulay and Lord Advocate Moncreiff. The malcontents resolved to fight ; and the tall figure and towering forehead of Mr. Edward Jenkins, " Ginx's Baby," who had once been Member for Dundee, appeared on the streets of Edinburgh. But this opposition was unavailing ; and Mr. McLaren won his election by a large majority. 2 The old question of Scottish administration was at this time once more under discussion. The proposal of Mr. Cross (1878) to transfer the political functions of the Lord Advocate to an Under-Secretary had been thoroughly dis- liked in Scotland, where it was regarded as another step towards the centralizing of all authority in London. Even that large section of the community which was of opinion 1 Dated, Whitehall, January 19, 1881. 2 The figures were: McLaren, 11,390 ; Jenkins, 3,940. 340 THE LORD ADVOCATES OF SCOTLAND that the Lord Advocates should be relieved of their political duties was opposed to any lowering of the importance and dignity of a purely Scottish office, and the handing over to subordinate officials of that power and influence which had been, for so long a time, in the hands of men who had, most of them at least, risen to the foremost ranks of a pro- fession the members of which had always played so great a part in the public affairs of their country. There was, how- ever, a feeling that some change was necessary. Either the Lord Advocates must be formally entrusted with greater responsibility, and their position more clearly defined, or a special Minister for Scotland must be appointed. A memorial on the subject was prepared by a number of Scottish Members of both parties ; and a few days after Mr. McLaren had taken his seat in the House of Commons it was presented to the Prime Minister. No Lord Advocate, the spokesman of the memorialists said, could possibly have been more attentive to the wishes of Scottish Members than Mr. McLaren, or done more to assist their efforts to promote legislation. But the position of the Lord Advocates was always difficult ; and there was a general wish for the appointment of a Minister with a seat in the Cabinet, as the only means of obtaining adequate attention to Scottish business. " The representatives of other parts of the United King- dom," Mr. Gladstone replied, " may be anxious to bring themselves into public notice ; but the practice of Scottish Members has been to go directly to the point, and to do their work in the speediest manner, and in the way that brings them least before the public, and consequently secures for themselves the least possible credit." They really, he said, had a grievance in the way their business was treated. Constitutionally the Home Secretary was Minister for Scot- land ; but the business of the Home Office had greatly increased of late years, so that various interests had suffered, and especially those of Scotland, which had been " shouldered out." Nothing, however, came of this interview. The fact was john mclaren 341 that Mr. Gladstone did not wish to incur the expense of creating a new department with a staff of paid officials, and would not commit himself. The appointment of Lord Rosebery as Under-Secretary at the Home Office in that year was well received in Scotland ; but it left the general question of Scottish administration unchanged. Mr. McLaren, now at last on the front bench, knew, as he wrote to a friend in Scotland, that the Cabinet, though fully aware of the wishes of so many Scottish Members, were un- likely to make any change in the meantime. He went on with the duties of his office as usual. At the end of March, in consequence of a suggestion that the question of local govern- ment should be carefully considered in connexion with financial reforms, he called the Scottish Members together, explained his own views, and printed an elaborate memor- andum on the subject which was circulated in Scotland. He was chairman of a Select Committee which prepared the bill which, though opposed as a " social revolution," passed into law as the Married Women's Property (Scotland) Act, 1881. Another bill, which he drafted to amend the law relating to teinds (tithes) in Scotland, was opposed by the disestablishment party, ostensibly over legal details, but really lest it might be of service to the Church. He also prepared an entail bill on principles which were embodied in a statute of the following year. But these and other activities were suddenly terminated. For a number of years Mr. Gladstone, always so wisely on the outlook for opportunities of retrenchment, had cherished plans for diminishing the cost of the public departments in Scotland. So long ago as 1870, when there was a vacancy on the bench of the Court of Session, he had said that, though it was to be filled on that occasion, it must be understood that the judicial strength in Scotland was not what it ought to be, and that the attention of Parliament must be called to it ; and early in the session of 1 881 , when there was a vacancy caused by the resignation of Lord Gifford (January 25), a bill to reduce the number of Scottish judges from thirteen to eleven was brought in by Lord Chancellor Selborne. This 342 THE LORD ADVOCATES OF SCOTLAND measure, which would, if it had been carried into law, have injured the efficiency of the Court of Session, and saved only a a small sum of public money, passed its first and second read- ings in the House of Lords with scarcely any explanation. But it was so unpopular in Scotland, not only with the legal profession but also with the general public, that it was not proceeded with ; and in the beginning of August it became known that a new judge was to be appointed. The Lord Advocate, in accordance with the usual practice, made a recommendation to the Prime Minister. 1 To his sur- prise he was requested to take the post himself. He declined, saying that he preferred to remain Lord Advocate, on which Mr. Gladstone asked for an interview. " I am sorry, Lord Advocate," he said, " that you are unwilling to take a posi- tion which Lord Young accepted after a long period of service." Mr. McLaren replied that Lord Young had been in Parliament for several years, whereas he himself, after fighting four elections, had sat for only a short time, and was therefore unwilling to give up his office and leave the House of Commons. Presently Mr. Gladstone rose — they had been sitting at a table in the Prime Minister's house in Downing Street — and told him to think the matter over. A week of suspense followed, during which the Lord Advocate never went to the Home Office. Sir William Harcourt, who had all along found Mr. McLaren stiffer to deal with than he expected, would not listen to Mr. Bright, who protested against what was being done, and in private went the length of saying that he might resign his own place in the Government if the Lord Advocate was driven out. Perhaps, as Mr. McLaren sometimes thought, it had occurred to Mr. Gladstone that it would be easier to satisfy the Members for Scotland on the question of Scottish admin- istration if a change was made in the person of the Lord Advocate than if one who had been appointed on the old footing remained in office. However this may have been, the Prime Minister, with the Bradlaugh question and many 1 He sent in the names of two members of the bar, one of whom was appointed to a judgeship at a later period. john mclaren 343 other troubles to occupy him, was not to be worried about the Lord Advocateship. Other influences were at work in a circle where Mr. McLaren had never been a persona grata ; but it is enough to say that the Lord Advocate, finding it impossible to resist any longer, sent a letter to Downing Street accepting the judgeship. Mr. Bright, who saw much of him during this trying time, said afterwards that his respect for John McLaren rose to admiration when he wit- nessed the dignity with which he faced his disappointment. 1 Taking the title of Lord McLaren on receiving his appoint- ment, he settled down to work next autumn, and remained on the bench for nearly thirty years. He made an excellent judge, open-minded, patient and courteous. His qualifica- tions as a lawyer were of course beyond question ; and his opinions, which were models of close reasoning and clear statement, were delivered in the neat, incisive manner of which his practice as a legal writer had made him a perfect master. He had a good deal of quiet humour too, and could hold his own even with Lord Young. " We've just reversed one of your judgments, McLaren ! " Lord Young told him cheerily one day. "Ah! "said Lord McLaren. "Iflhadknown that case was going to the Second Division, I would have written Second Division law." There was a great friendship between them ; but Lord Young would always have his joke. Once while he was sitting for his bust to Mrs. Wallace, Lord McLaren's daughter, he came to her studio. " Well," he asked. " What's your father been doing ? " " I hear," said Mrs. Wallace, " that he has been agreeing with one of your decisions." " Has he % I may be right for all that," answered his lordship promptly. Lord McLaren had a family of three sons and three daughters, and was survived by one son, Duncan, and by his daughters, the youngest of whom, Ottilie, now the wife of Mr. William Wallace, musical composer, studied under Rodin at Paris, and has shown much ability as a sculptor. Her bust of Lord Young is in the Parliament House* The 1 Mr. Balfour then became Lord Advocate, and Mr. Asher, who had been elected for the Elgin district in July, Solicitor-General. 344 THE LORD ADVOCATES OF SCOTLAND eldest, Katharine, married Mr. F. S. Oliver of Checkendon Court, Oxfordshire, author of the Life of Alexander Hamilton ; and the second, Esther, married Mr. Alan Blackburn, youngest son of the late Professor Blackburn of Roshven, Inverness-shire. In that county Lord McLaren purchased the estate of Glenuig, beautifully situated on the shores of Loch Ailort, where he used to spend the vacations with his wife and family. Yachting was his favourite amusement ; and he was devoted to the study of botany, astronomy, and mathematics. He had many of those scientific interests. He had been a Fellow of the Royal Society of Edinburgh since 1869, and after he went on the bench was elected Vice-President for three terms of office. " He was of invaluable service to the Society when delicate questions arose requiring careful deliberation and knowledge of affairs. His skill in drafting documents was in continual request, and several of the more recent modifications in the rules of the Society were framed by him." 1 He was also for some time President of the Scottish Meteorological Society, and a director of the Ben Nevis Observatory ; and in these pursuits he was a close friend of Professor Guthrie Tait and of Lord Kelvin, who was often his guest in Edinburgh. " He was," says Pro- fessor Knott, " an amateur of Science in the highest sense of the word." He received the degree of LL.D. in 1882 from the University of Edinburgh, and from Glasgow in the following year, along with Mr. Bright, who was then installed as Rector ; and the same honour was conferred upon him at the fourth centenary celebration of the University of Aberdeen. After he became a judge Lord McLaren seldom wrote anything except his papers for the Royal Society ; but on the death of Lord President Inglis he contributed an article to the Juridical Review (1892), from which one sentence may be quoted, so aptly does it describe that great judge's place in the history of Scottish jurisprudence : " His 1 Proceedings of the Royal Society of Edinburgh, vol. xxxi., part v. p. 695. A list of scientific papers by Lord McLaren is given at p. 696. john mclaren 345 philosophical expositions of legal principles," he says, " are the equivalent in modern law of the institutional writings of preceding centuries ; and they have to a large extent superseded and rendered antiquated the more ancient sources of authority on which they are founded." He himself sat, after serving his time as an " Outer House " judge, in that First Division of which Lord President Inglis was so long the head till the year 1 909. About that time there were considerable arrears of business in the two Divisions, and the Lord President (Dunedin) appointed a temporary Third Division of three judges, with Lord McLaren as President, to wipe them off. The work of this court was finished in June, 1909 ; and after that Lord McLaren was never able to take his seat on the bench again. He obtained leave of absence, and seemed to be recovering ; but in March a chill led to a relapse, and he went to Brighton, where, after an illness of two days, he died on the 6th of April, 1909, in his eightieth year. Though Lord McLaren's Parliamentary career had been cut short against his wish he never lost his absorbing interest in public affairs — he was reading the political news in The Times within twenty-four hours of his death — and watched all Scottish questions with special attention. He had him- self never thought that it would seriously affect the position of the Lord Advocates whether their work lay alongside the Home Secretary or a Scottish Secretary ; and, on the whole, this opinion seems to have been borne out by the course of Scottish business since 1885, when effect was given to the views expressed by Cockburn fifty years before, and a Secretary of State was appointed under the statute which placed the administration of Scotland on its present footing. Soon after the close of the long controversy on Scottish administration, about which so much has been said in this volume, Mr. Duncan McLaren died (April 26, 1886), having just declared his opposition to Mr. Gladstone's Irish policy, If there was an election, he wrote from his deathbed, " I should vote for the candidate against the Irish Parliament 346 THE LORD ADVOCATES OF SCOTLAND whatever his other political convictions might be, whether Radical, Whig, or Tory, so strong is my conviction of the ulterior evil consequences which must flow from such a measure.' ' Lord McLaren, though as a judge he was of course precluded from taking any personal share in politics, was also strongly hostile to the Home Rule movement, and followed Mr. Bright into the Liberal Unionist coalition. The question of how Ireland should be governed was, however, merely a question of expediency, on which Tories, Whigs, and Radicals have held different views at different times. It involved no fundamental principle ; and though Lord McLaren found himself, as time went on, more and more out of accord with the majority of his old party, the complete loss of sympathy did not come till the closing years of his life, when he was at last finally estranged by the new doctrines which were displacing the liberalism of former days. INDEX Abbotsfokd, 12. Aberconway,see McLaren, Charles. Abercromby, James, elected for Edinburgh, 18 ; re-elected (1834), 29; receives a peerage (Lord Dunfermline), 60. Abercromby, 4th Lord, 326. Aberdeen, Dr. Dale at, 251 ; Mr. Gladstone at, 279 ; Marischal College and University, 214 ; King's College, 214. Aberdeen, 4th Earl of, correspon- dence with Chalmers, 74 ; his Church Bill, 74; with- draws it, 75 ; charges against him 75 ; attacks Chalmers, 75 ; appointed Foreign Secre- tary, 83 t ; influences Peel against Chalmers, 85 ; forms the Coal- ition Government, 168, 169 ; carries the Benefices Act, 129 et seq. ; failure of the Act, 296, 297 ; said to regret his part in the disruption, 296. Aberdeen Benefices Act, 129, 296, 130, 131, 300, 307. Aberdeen Entail Act, 108, 113. Aberdeenshire, two members given to, 241. Adam, Alexander, Rector of High School, 1, 3. Adam, Sir Charles, M.P. 29. Adam, W. Patrick, M.P., 192, 323, 324, 327, 330, 331, 334, 338. Agnew, R. Vans, M.P., 268. Ailsa, 2nd Marquess of, 185. Aitchison, William, 25 et seq. Aitken, Miss Grant. 316. Aitken, William, of Dunbar, 316. Albert, Prince, 132, 159. Alison, Sir Archibald, 38, 39, 185, 206, 264. Alison, Dr. William Pulteney, 136, 138. Althorp, Lord, 28. Anderson, Adam, Lord Advocate, 161, 162. Anderson, Arthur, M.P., 205. Anderson, David, of Moredun, 162. Anderson, James, Q.C., 168. Anderson, J. S. M., 31. Anderson, Dr. Maitland, 127, 128. Annuity Tax (Edinburgh), 165, 166, 229, 230, 234, 241, 275. Anstruther, Sir Robert, M.P., 260, 298, 326. Anti-Corn-Law League, in Scotland, 80. Appeal in Criminal Cases, 265. Appellate Jurisdiction Act (1876). 306. Argyll, Archibald, Duke of, 126. Argyll, John, 7th Duke of, 79, 85, 86. Argyll, George, 8th Duke of, 114, 189. Arniston, 10, 291. Arrears of Tithes (Inland) Bill, 18. Asher, Alexander, Q.C., M.P., 309, 325, 332, 335, 336. Associations, early political, 5. Auchterarder Case (first), 62 et seq.; (second), 86. Ayrshire, two members given to, 241. Ayrton, A. S., M.P., 247. Aytoun, James, advocate, 81. Aytoun, Professor, W. E., 149, 151, 185, 206. Bagehot, Walter, 239. Baillie, Charles, Lord Advocate, 224, 225. Baillie, George, of Jerviswoode, 223. Baillie, Rachel, 223. Baillie, Robert, of Jerviswoode, 223. Baird, James Baird, M.P., 168. 34§ INDEX Baird, William, M.P., 81. Balfour, John Blair, M.P., Q.C. (Lord Kinross), 259, 309, 326, 332, 335, 336, 338, 343. Bannerman, see Campbell. Bannatyne, John, 310. Bannatyne, Margaret (Mrs. Wat- son), 310. Barclay, James, M.P., 312. Baring, Hon. Alexander (Lord Ashburton), 293. Bath, defeat of Edmund Burke at, 50. Baxter, W. E., M.P., 215, 216, 240, 303, 326. Beaconsfield, Earl of, see Disraeli. Beales, Edmund, 245. Bedchamber Question, 60. Begg, Dr. James, 278, 299. Bell, George Graham, of Crurie, 288. Bell, Professor George Joseph, 320. Bell, Henry Glassford, 286. Bell, Isabella (Lady Moncreiff ), 153. Bell, Janet Graham, 288. Bell, Robert, Advocate, 153. Belper, see Strutt. Benefices Act, 129, 130, 131, 296, 300, 307. Berkeley, Bishop, 63. Berriedale, Lord, 185. Bervie, Janet (Mrs. Greenfield), 49. Berwick-on-Tweed, election of 1880, 337. Bethune, Alexander, of Blebo, 251. Bethune, Margaret (Mrs. Patton). Bessborough, Lord, 121. Bethell, Sir Richard (Lord West- bury), 202, 217, 233, 234. Black, Adam, 9, 10, 102, 164, 214, 226, 229, 234, 235. Blackburn, Alan, 344. Blackburn, Peter, contests Edin- burgh, 101. Blackburn, Lord, 314. Blackwood's Magazine, founded, 5; " Ten Thousand a Year," 80 ; election verses in, 81 ; on the Crimean War, 188 ; Articles by John Inglis, 204, 221. Blackwood, William, 9. Blair, Forbes Hunter, 18. Blair, Sir James Hunter, 224. Blair, Anne Hunter (Mrs. William Mure), 224. Blair, Dr. Hugh, 47, 48. Board of Supervision, 143, 144. Bonnymuir, 7. Border Burghs, new constituency of, 241. Boswell, Sir Alexander, 128. Bowen, Lord, 314. Boyle, Lord Justice and Lord President, 40, 83, 121, 145. Boyle, Dean, 119, 122. Boyle, Hon. Patrick, 40. Braxfield, Lord Justice Clerk, 3. Breadalbane, 2nd Marquess of, 75, 79, 94. Breadalbane, Marchioness of, 224. Brewster, Sir David, 96, 217. Bridgwater, elections of 1866, 238 et seq. ; Commission on corrupt practices, 250 ; disfranchised, 251. Bright, John, 191, 202, 237, 243, 316, 336, 343, 344, 346. Bright, Jacob, 318. Bright, Priscilla (Mrs. Duncan McLaren), 316. British Museum, 119, 120. Brougham, Henry (Lord Brough- am), at Edinburgh University, 2 ; banquet to, 9 ; speech at Grey Festival, 27 ; consults Murray about Scottish Offices, 12 ; attack on Scottish law officers, 42 et seq. ; judgment in Auchterarder Case, 59, 62 ; on the Rutherford Entail Act, 114; on the Benefices Act, 130 ; on appointing a Scottish Lord of Appeal, 146 ; Chancellor of Edinburgh Uni- versity, 220. Bruce, Henry Austin (Lord Aber- dare), 248. Bruce, Hon. Thomas Charles, 164. Buccleuch, 5th Duke of, Lord Privy Seal, 83 ; against Ruther- ford Entail Bill, 114; on the Coalition Ministry, 169 ; proposed as Chancellor of Edinburgh University, 220 ; at Disraeli banquet (1867), 292 ; influence in Midlothian, 328. Buchan, 12th Earl of, 185. Buchanan, Dr. Robert, 72, 73, 296. Burke, Edmund, 111. Burns, Robert, 48. Burton, John Hill, 51. Cairns, Lord Chancellor, 209, 265. Caithness, Earl of, 185. INDEX 349 Campbell, Alexander, of Monzie, 70, 81, 84, 85, 131, 132, 164. Campbell, Sir George, M.P., 311. Campbell Bannerman, Sir Henry, 245. Campbell, James, of Craigie, 140. Campbell, Sir John (Lord Camp- bell), defeated at Dudley, 19 ; on the Veto Act, 24 ; elected for Edinburgh, 27 ; Church resolutions (1843), 92 ; second reading of Rutherford Entail Bill, 114; attacks Lord Advocate McNeill, 130, 131 ; against appointing a Scottish Lord of Appeal, 146 ; on Conspiracy to Murder Bill, 202 ; on the Coalition Ministry, 169, death of, 235. Camperdown, Earl of, 326. Canning, administration, 10, 11. Canning, Lord, 158. Cardwell, Edward (Lord Cardwell), 167, 270. Carlyle, Thomas, 137, 242. Cecil, Lord Robert (Marquess of Salisbury), member for Stam- ford, 211 ; condemns Reform Act of 1867, 291. Chalmers, Thomas, on patronage, 21 et seq. ; on Corn Laws, 34 ; on the Combination Laws, 35 ; Answers Dean of Faculty Hope, 69 ; Correspondence with Lord Aberdeen, 74 ; re- signs chair after the disruption, 95 ; on the poor laws, 135 et seq. ; on free education, 174. Chamberlain, Rt. Hon. Joseph, 326. Chapel Act, 88. Charteris, Rev. Archibald, 293, 295. Charteris, Hon. Francis (Lord El- cho and Earl of Wemyss), 116, 169, 171, 179, 184, 200. Chipping Wycombe, 291. Chisholm, Alexander William, M.P., 31. Christison, Professor Alexander, 49. Christ ison, Professor Sir Robert, 242 et seq. Christopher, see Dundas, R.A. Claim of Rights, 86. Clarendon, Lord, Foreign Minister, 236. Clark, Andrew Rutherfurd (Lord Rutherfurd Clark), 51, 262, 263, 309, 310. Clark, Rev. Thomas, 51. Classical Society, 149. Clerk of the Pipe, 4, 16, 17. Clerk, Sir George, 18, 29, 32, 50, 61. Cobden, Richard, 165, 191, 192, 317. Cochrane, Lord, 185. Cockburn, Harry A. (grandson of Lord Cockburn), 123. Cockburn, Henry (Lord Cockburn), 2, 4, 8, 13, 14, 15, 18, 22, 25, 31, 40, 41, 42, 52, 60, 63, 97, 115, 121, 122, 124, 154, 254. Codification, 269. Colenso, Bishop, 255. Coleridge, Sir John Duke, 270. Colonsay, Island of, 126. Colonsay, Lord, see McNeill- Duncan. Colville of Culross, Lord, 185. Combination Laws, 34 et seq. Conspiracy to Murder Bill, 200. Convocation of Ministers (1842), 86. Corehouse, Lord (George Crans- toune), 45. Corsan, Marian, 261. Corsan, William, of Dalwhat, 261. Cottenham, Lord Chancellor, judg- ment in Auchterarder Case, 59, 62 ; on the Benefices Bill, 130. Cotton Spinners' Association, 37 et seq. Cotton Spinners, trial of, 40. Court of Session Act (1868), 307. Covington and Thankerton, 308. Cowan, Charles, M.P., 110, 116, 166, 171, 226. Cowan, James, M.P., 322. Cowan, John (Lord Cowan), 157. Craig, Sir James Gibson, 14, 51, 102. Craig, Sir William Gibson, 29, 32, 92, 104, 116. Craigcrook, 122, 258. Cranstoun, see Corehouse. Craufurd, E. H. J., 260. Craufurd, James (Lord Ardmillan), 155, 220. Criminal Law Amendment Act, 321. Cringletie, 1. Cross, Richard (Viscount Cross), 312, 339. Culfargie, Moncrieffs of, 253. Cultoquhey, 249, 258. Cunningham, Dr. William, 204. Cunninghame, John (Lord Cunning- hame), 52. Dale, Dr. R. W., speeches in Scot- land, 281. 350 INDEX Dalkeith, Lord, 328. Dalkeith, Mr. Gladstone at (1879), 331. Dalmeny, Lord (son of 4th Earl of Rosebery),27, 29,32,81, 92, 102. Dalrymple, Sir Charles, M.P., 298. Dalrymple, Sir John, M.P. (8th Earl of Stair), 18, 51. Dalrymple, Captain John, M.P. (10th Earl of Stair), 92, 328. Dalziel, General Thomas, 223. Deas, George (Lord Deas), 157, 262 et seq., 287. Deathbed, law of, 278. Deer forests, 272, 273. Delavoye, Captain A., life of Lord Lynedoch, 257. Denison, Evelyn, re-elected Speak- er (1868), 246. Derby, 14th Earl of, becomes Prime Minister (1852), 161 ; (1858), 202 ; (1866), 257, 268. Disraeli, Benjamin (Lord Beacons- field), motion on agricultural distress, 158 ; Chancellor of the Exchequer, 163 ; adheres to free trade, 168 ; visits Scot- land, 290 et seq. ; Prime Minister, 293 ; Rector of Glas- gow University, 307 ; general election of 1880, 313 ; on trade union legislation, 321. Disruption of Scottish Church (May 1843), 93. Douglas Cause, 146. Douglas, Francis Brown, advocate, 320. Drumlanrig, Viscount (7th Mar- quess of Queensberry),116, 169. Drummond, Henry Home, M.P., 50, 70, 82, 140, 143. " Drumtochty," 249. Dryburgh Abbey, 12. Duff, M. E., Grant, M.P., 243, 244. Dunbar, Professor, 49. Dunbar, Sir William, M.P., 268. Dundas, Frederick, M.P., 205 et seq. Dun das, Henry (Viscount Melville), 1. Dundas, Robert, of Arniston (1797- 1838), 10. Dundas, late Robert, of Arniston, 291. Dundas, Second President, 222. Dundas, Robert Adam (afterwards Christopher and Nisbet Hamil- ton), 10, 206, 292. Dundas, William (Lord Clerk Re- gister), 10. Dundee, additional member for, 241 Dundonald, Earl of, 185. Dunedin, Lord President, 345. Dunlop, Alexander Murray, 69, 72, 75. Durham, Lord, 27 et seq. Ecclesiastical Titles Bill, 159 et seq. Edinburgh Review, founded, 3 ; Articles by J. A. Murray, 4 ; Macvey Napier appointed edi- tor, 50 ; on the corn laws ; 34 ; Moncreiff's article on Macaulay, 156 ; on lowering the fran- chise, 252 ; on other subjects, 257. Edinburgh Theatrical Fund dinner (1827), 84. Edinburgh University Magazine, 150. Education in Scotland, 173 et seq. ; National Association formed (1853), 177 ; Bill of 1854, 180 et seq. ; Lord Advocate Mon- creiff's sixth Bill (1869), 246 et seq. ; Lord Advocate Young's first Bill, 275 et seq. ; " Use and want " resolution carried, 282 ; Lord Advocate Young's second Bill, 280 et seq. ; Edu- cation Act (1872) passed, 283. Eglinton, 3rd Earl of, 97, 206. Elcho, Lord, see Charteris, Hon. F. Elibank, Lord, 185. Emmet, Thomas, 2. Entail, law of, 106 et seq. ; Lord Advocate Rutherfurd's Act (1848) passed, 114; Lord Ad- vocate Young's Bill (1873), 284 ; deeds of entails from 1848 to 1879, 333 ; Lord Advocate McLaren on entails, 333. Erroll, Earl of, 185. Erskine, Hon. Henry, 147. Essay Club, Oxford, 151. Evelick, 1. Evidence, law of, amended, 77, 170. Farm labourers' (Scotland) rise in wages, 1832 to 1870, 273 . Farms, evils of large, 278. Fergusson, Sir James, M.P., 232, 290. INDEX 351 Fergusson, R. C., M.P., 29. Feudal Tenure, 274. Finlayson, Rev. James, 48. Fitzroy, Lord Frederic, 293. Fleming, John and James (Sandy- ford Place, Glasgow), 261 et seq. Fletcher of Saltoun, 324. Follett, Sir William, 92. Forster, W. E., M.P., 275. Forbes Mackenzie Act, 172. Forbes, Sir William, 162. Fordyce, W. Dingwall, M.P., 305. Forensic Society, 149. Fox, Charles James, 3. Free Church, formed, 93 ; growth after 1843, 294. Free Churchmen, claim to be the Church of Scotland, 93 ; vio- lent language of leaders, 94. Friday Club, 122, 124. Garibaldi, 188. Gavazzi, 188. Gibb, James, cotton spinner, 39. Gifford, Adam (Lord Gifford), 262, 309, 341. Gibson, T. Milner, M.P., 191, 200, 202. Gillon, William, M.P., 61. Gilmerton, Mr. Gladstone at (1880), 334. " Ginx's Baby," 339. Gladstone, William Ewart, on Dean of Faculty Hope's pam- phlet, 69 ; votes against inquiry into the Claim of Rights (1843), 92 ; joins Lord Aberdeen's Government, 169 ; speaks on Conspiracy to Murder Bill, 201; joins Lord Palmerston's Gov- ernment (1859), 228 ; proposed as Chancellor of Edinburgh University, 220, as Rector at Glasgow, 220 ; Rector of Edin- burgh University, 242 ; brings in the Reform Bill of 1866, 236 ; defeated in Lancashire, but elected for Greenwich, 245 ; speaks on Scottish busi- ness, 248 ; abolishes army purchase, 277 ; receives a deputation on Church patron- age, (1869), 297 ; opinion on the Bill for abolishing patron- age, 302 ; opposes the second reading, 303 et seq. ; speaks on Scottish Church question, 326 ; accepts invitation to Midlothian, 328 ; speaks on disestablishment, 334 ; elected for Midlothian, 335 ; discusses Scottish business in Parliament, 341 ; interview with Lord Advocate McLaren, 342. Gladstone, Sir Thomas, of Fasque, 185. Glasgow, additional member for, 241 ; last public execution in, 309 ; strike in, 7. Glasgow University, Lord Advocate Rutherfurd elected as Rector, 97. Glenalmond, 249. Glenuig, 344. Gloag, William Ellis (Lord Kin- cairney), 286. Glyn, George (Lord Wolverton), 248, 323. Goderich administration, 11. Gordon, Adam, 289. Gordon, Edward Strathearn (Lord Advocate), parentage, 289 ; early Advocate) parentage, 289 ; early years, 289 ; rises at the bar, 289 ; Solicitor General, 290 ; Lord Advocate, 290 ; loses an election, 240 ; enter- tains Mr. Disraeli in Edinburgh, 292 ; elected for Thetford, 293 ; brings in the Scottish Reform Bill (186 7),293 ; elected for Universities of Glasgow and Aberdeen, 294 ; promotes Abolition of Patronage, 296 et seq. ; carries the Patronage Abolition Act (1874), 305; ap- pointed a Lord of Appeal, 306 ; his work as Lord Ad- vocate, 307 ; Dies at Brussels (1879), 307. Gordon, Major John, 289. Gordon, John, F.R.S.E., 102. Gordon, John Thomson (Sheriff of Midlothian), 102. Gordon, Hon. William, M.P., 82, 83. Gordon, Mrs. (daughter of Professor Wilson), 102, 123, 124. Goulburn, Mr. Speaker, 60. Graham, Sir James, resigns (1834), 26 ; opposes issue of a writ for Perthshire, 70 ; on the Scottish Church question (1840), 74 ; appointed Home Secretary, 83 ; influences Peel against 352 INDEX Chalmers, 85 ; rejects the Claim of Rights, 87, 88 ; speaks on the Claim of Bights, 90 ; Rector of Glasgow University, 97 ; on the State of Parties (1851), 158 ; joins Lord Aber- deen's Government, 169 ; re- grets his part in the disruption, 296 ; death, 235. Graham, James Maxtone, of Cul- toquhey, 258. Graham, Robert, of Redgorton, 19. Graham, Sir Thomas (Lord Lyne- doch), 257. Grant, Sir Alexander, 217, 221. Grant, Andrew, M.P., 328. Grant, Charles (Lord Glenelg), 29. Grant, Sir George Macpherson, 102, 140. Gray of Kinfauns, Lord, 185. Greenwich, Mr. Gladstone returned for, 245 ; discontent with him there, 279 ; declines to stand again, 328. Greenfield, Dr. William, 47 et seq. Greville Memoirs, 130, 257. Greville, Captain the Hon. Fulke (Lord Greville), 328. Grey, Sir Edward (Foreign Minis- ter), 72. Grey, Sir George, 72, 92, 111, 264. Grey, 2nd Earl, becomes Prime Minister (1830), 12 ; resigns, 27 ; visits Scotland, 27. Grey, 3rd Earl, Secretary for War, 104. Grey Festival, 27 et seq. Grfflion's Club, 119, 231. Grote, George, M.P., 18. Grosvenor, Lord Richard, 339. Grosvenor, Lord Robert, 118. Ground Game, 272, 277, 337, 338. Guthrie, Charles John (Lord Guth- rie), 287. Guthrie, Dr. Thomas, 176, 282. Habeas Corpus Act, suspended, 6. Hacket, Peter, cotton spinner, 39. Haddington, 6th Earl of, 223. Haddington, 10th Earl of, 77, 83, 114. Haddo,Lord (5th Earl of Aberdeen), 82. Haldane, Lord Chancellor, 314. Hamilton, John, advocate, 75. Hamilton, Sir William, 50. Hanna, Rev. William, 154. Harcourt, Sir W. Vernon, 337, 338, 342. Hardy, A. E., Gathorne, 290, 326. Hardie, Mr. (elector in Leith dis- trict), 26. Hartington, Marquis of (8th Duke of Devonshire), moves amend- ment to address, 228 ; defeated in Lancashire, 245 ; on Church question in Scotland, 324, 325 ; makes way for Mr. Gladstone (1880), 336. Hastie, Alexander, M.P., 155. Hatherley, Lord, 314. Hay, Sir A. Leith, M.P., 29. Hay, Admiral, Sir John, 336. Hay, Lord William, 329. Henderland, Lord, 1, 3. Henderson, Mr. Wingate, 163. Herbert, Sidney (Lord Herbert of Lea), 169, 227, 235. Herries, Rt. Hon. J. C, 101. Hobhouse, Sir John, 19. Hogg, James (Ettrick Shepherd), 9. Hope, Charles, Lord President, 2, 54, 57, 59, 83. Hope, John (Dean of Faculty, Lord Justice Clerk), 12, 13 ; Counsel in Auchterarder case, 54 et seq. ; his pamphlet on Church question, 68 ; opposes Evidence Bill (1840), 77 ; made Lord Justice Clerk, 83 ; criti- cised by Peel, 85 ; letter to Sir James Graham, 102 ; opposes appointment of a Scottish Lord of Appeal, 146 ; brow- beats an advocate depute, 224; death, 217. Horner, Francis, 1 et seq. ; death, 5. Horner, Leonard, 5. Hume, Professor David, 2, 49. Hume, Joseph, M.P., 33, 35, 61, 105, 118. Hunter, Thomas, cotton spinner, 39. Huskisson, Mr., on the Combination Laws, 34. Hypothec, law of Agricultural, 271 et seq., 277, 337. Inglis, John (Lord Advocate), parentage and early life, 203 ; goes to the bar, 203 ; writes in Blackwood, and is charged with mendacity, 204 ; Solicitor- General, 205 ; contests Orkney INDEX 353 and Shetland, 205 et seq. ; con- tests Lisburn, 209 ; Dean of Faculty, 210 ; defends Made- leine Smith, 198, 211 ; heavy practice at bar, 211 ; opinion on the Test, 96 ; Lord Advocate and member for Stamford, 211 ; speaks on duties of the public prose- cutor, 211 et seq. ; brings in his University Bill, 213 ; speaks on Office of Lord Advocate, 215, 216 ; carries his Univer- sity Bill through House of Commons, 217 et seq. ; Lord Justice Clerk, Lord President, 219 ; Chairman of University Commission, 219 ; Chancellor of Edinburgh University, 220 ; devotion to judicial work, 221 ; death and funeral, 222. Inglis, Dr. John, 203. Inglis, Sir Robert, M.P., 178. Innes, Alexander Taylor, 254, 303, 305. Intestate Succession Act (1855), 170. Ivory, Lord, 265. Jamaica Bill, 60. Jedburgh, Sir Walter Scott mobbed at, 12. Jeffrey, Francis (Lord Jeffrey), 3,8,10,11,14,19,22; opinion on patronage question, 22 ; on free labour, 35 ; on Auchter- arder case, 58, 60, 156. Johnson, Dr. Samuel, 47. Jenkins, Edward, 339. Jerningham, Henry, of Longridge, 337. Jolliffe, Sir William (Lord Hylton), 190, 226. Jones, Ernest, 245. Juridical Review, 344. Juridical Society, 149, 318. Justiciary, High Court of, question of appeal, 265. Juvenile Literary Society, 2. Kames, Lord, 70, 111. Kelly, Sir Fitzroy, 207. Kelvin, Lord, 344. Kennedy, Thomas Francis, M.P., 13, 14, 15, 19, 50. Kiloran, 126. King, H. P. Locke, M.P., 158. Kinglake, A. W. (the historian), 238, 250. King's College, see Aberdeen. Kinnaird, 8th Lord, 2. Kinnaird, Hon. Arthur (10th Lord Kinnaird), 328. Kinnoull, 10th Earl of, 53, 54. Kirkwood, Dr. Anderson, 311. Knott, Professor Cargill Gilston, 344. Kossuth, 188. Lacaita, Sir James, 120. Lanarkshire, two members assigned to, 241. Lancaster, Henry Hill, advocate, 266. Land Laws, 105 et seq., 133, 271 et seq., 274, 284, 332. Lauder, Sir Thomas Dick, 51, 102. Lauriston Castle, 101, 120, 122. Learmonth, John, 26. Lee, Dr. Robert, 295. Lefevre, Mr. Shaw (Speaker), 60. Leith district, 17, 25, 102, 157, 163, 192, 327. Leslie, Professor John, 9. Lewis, Sir George, 235. Lewis, Rev. George, 175. Lincoln, Lord (5th Duke of New- castle), 111. Lilly, E., of Bridgwater, 250. Lindsay, Sir Alexander, 1. Lindsay, Katherine (Mrs. Murray of Henderland), 1. Linning, Michael, W. S., 128. Lisburn, election of 1852, 209 et seq. Local Government Board, 144. Lockhart, John Gibson, 9, 50. Logiealmond, 249. Lonsdale, 2nd Earl of, 161. Lopez, President, of Paraguay, 267. Lord Advocates, question of their position, 13, 31, 185 et seq., 215, 216, 234, 240, 311 et seq., 339. Loreburn, Lord Chancellor, 323. Lowe, Rt. Hon. Robert, 237, 244, 246. Lynedoch, Lord, see Graham, Sir Thomas. Macaulay, Thomas Babington (Lord Macaulay), 60, 92, 99, 102, 164, 166, 229. Macdonald, John Hay Athole (Lord Justice Clerk), 287, 322, 335. A A 354 INDEX Macdougall,Professor Patrick Camp- bell, 171. Macduff, Viscount, 326. Macfarlane, Rev. Patrick, 140. Macgregor, Dr. James, 295- Macgregor, John, M.P., 189. Maclnnes, John, of Auchenreoch, 307. Maclnnes, Agnes, wife of Lord Advocate Gordon, 307. Mackcoull, or Moffat, James, trial of, 128. Mackenzie, William Forbes, M.P., 115, 172, 173, 178. Mackenzie, Lord, 40, 155. Mackenzie, Sir George, of Rose- haugh, 223. Mackenzie, Henry, 40. McKinlay, Andrew, trial of, 6. Mackintosh, Sir James, 63. McLachlan, Jessie, trial of, 262 et seq. McLaren, Dr. Agnes, 317. McLaren, Charles Benjamin Bright (Lord Aberconway), 317. McLaren, Duncan, M.P., 316, 317, 318, 322, 326, 260, 328, 247, 240, 167, 227, 185, 298, 312, 334, 339, 345. McLaren, Duncan (son of Lord Advocate McLaren), 343. McLaren, John (Lord Advocate), early days, 316 ; trained to public affairs, 317 ; travels abroad, 318 ; goes to the bar, 318 ; writes a treatise on Wills, 319; marries, 319; appointed Sheriff of Chancery, 319<; edits Bell's Commentaries, 320 ; moderation of his politi- cal opinions, 321 ; political work, 323 ; speaks at Leith, 327 ; moves vote of thanks to Mr. Gladstone, 331 ; lectures on the Land Laws, 332 ; elected for the Wigtown district, 336 ; appointed Lord Advocate, 336; defeated on seeking re-election, 337 ; contests Berwick-on- Tweed, 337 ; difficulties with Sir William Harcourt, 338 ; elected for Edinburgh, 339 ; goes on the bench, 343 ; private life and scientific pursuits, 344 ; his death, 345 ; dislike to Home Rule, and to the new School of Liberalism, 346. McLaren, Esther (Mrs. Blackburn), 344. McLaren, Jan (Rev. John Watson), 249. McLaren, Katharine (Mrs. Oliver), 344. McLaren, Ottilie (Mrs. Wallace), 343. McLaren, Walter Stowe Bright, M.P., 317. McLean, William, Cotton" Spinner, 38 et seq. MacLeod, Dr. Norman, 295, 297. Macmillan, John, Rector of Dum- fries Academy, 261. McNeill, Alexander, 127. McNeill, Donald, 126. McNeill, Duncan (Lord Advocate), birth and education 126 et seq. ; goes to the bar, 128 ; Solicitor- General, Lord Advo- cate, 129 ; drafts the Benefices Bill, 129 et seq. ; elected for Argyllshire, 132 ; carries two Conveyancing Acts, 133; carries three Acts relating to public companies, 133 ; prepares a Poor Law Bill, 140 ; carries the Poor Law Act of 1845, 143 ; out of office, 144 ; praised by Cockburn, 145 ; goes on the bench, 145 ; appointed Lord President, 145 ; made a Lord of Appeal, 146 ; his death, 146. McNeill, Duncan, of Dunmore, 126. McNeill, Hester (mother of Lord Colonsay), 126, 127. McNeill, John, of Colonsay and Oronsay, McNeill, Sir John, Chairman of Board of Supervision, 144. McNeill, Richard, cotton spinner, 39. Maconochie, Alexander (2nd Lord Meadowbank), 6. Macpherson, Jessie, murder of, 262 et seq. Maitland, Sir Alexander Gibson, (2nd Baronet), 51. Maitland, Sir Alexander Gibson (3rd Baronet), 245. Maitland, Edward (Lord Barcaple), 265. Maitland, Thomas (Lord Dundren- nan), 104, 156. Malmesbury, 3rd Earl of, 168. Mansfield, 1st Earl of, 1. Mansfield, 3rd Earl of, 70. INDEX 355 Malthus, Rev. T. R., 135. Manchester School, unpopular in Scotland, 80, 191. Mangin, Rev. Edward, 49. Manners, Lord John, 190. Marjoribanks, Sir Dudley Coutts (1st Lord Tweedmouth), 337. Married Women's Property (Scot- land) Act, 347. Marischal College, see Aberdeen. Marshall, John (2nd Lord Currie- hill), 309. Masson, Professor David, 151. Maule, Hon. Fox (Lord Panmure and Earl of Dalhousie), 33, 44, 70, 76, 82, 96, 99, 104, 189. Maxwell, Sir William Stirling, 168, 183, 216, 245, 292, 328. Martineau, Harriet, 45. Mayerne, Sir Theodore, 121. Maynooth, Grant, opposition in Scotland, 98 et seq. Mazzini, 188, 318. Meadowbank, Lord, see Maconochie. Melbourne, Viscount, 28, 69, 70. Melgund, Viscount (3rd Earl of Minto), 178, 192, 326 note. Medwyn, Lord, 155. Melville, 2nd Viscount, 10, 140. Mercantile Law Amendment Act (1856), 269. Merchant Shipping Act (1854), 270. Methven, 51. Miall, Edward, M.P., 191. Midlothian politics in 1827, 11 ; election of 1832, 18 ; of 1834, 29 ; of 1837, 32 ; of 1841, 81; of 1868, 245 ; of 1874, 329 ; of 1880, 335. Mill, John Stuart, 238. Miller, Hugh, editor of The Witness, 68, 185. Miller, John, M.P., 234, 322. Miller, Sir Thomas (Lord Advocate in 1765), 265. Miller, William, contests Leith, 192. Milne, Admiral Sir David, 29 et seq. Milne-Home, David, advocate, 30, 295. Milne-Home, Captain M.P., 337. Minto, 3rd Earl of, see Melgund. Moffat, see Mackcoull. Molesworth, Sir William, 169. Moncreiff, Hon. Henry James (2nd Lord Moncreiff of Tulliebole), 258. Moncreiff, Rev. Sir Henry Well- wood, 148, 151, 154, 258. Moncreiff James (Lord Advocate), birth and early life, 148 ; at Edinburgh University, 149 et seq. ; early writings, 152 ; goes to the bar, 152 ; marriage, 153 ; Counsel at sedition trials of 1848, 155 ; Articles in North British Review and Edinburgh Review, 156 ; appointed Lord Advocate, 156 ; elected for Leith, 157 ; speech on the Ecclesiastical Titles Bill, 160 ; re-elected for Leith, 170 ; his legislation, 170 ; carries an Act abolishing the University Test, 171 etseq. ; speaks on the Forbes Mackenzie Act, 173 ; speaks on Lord Melgund 's Education Bill, 178 ; brings in his first Education Bill, 179 ; it is rejected, 184 ; speaks on the fall of Kars,190 ; prosecutes Madeleine Smith, 193 et seq. ; prepares University Bill, 200 ; speaks on the Conspiracy to Murder Bill, 201 ; fall of the Palmerston Government, 202 ; retires from Leith, and is elected for Edinburgh, 226 ; Counsel in McLaren v. The Scotsman, 227 ; again Lord Advocate, and re-elected for Edinburgh, 229 ; carries an Annuity Tax Act, 230 ; carries an Act abolishing the test for Schoolmasters, 231 ; defends the office of Lord Advocate, 232 ; Edinburgh election of 1865, 234, 235 ; retires from Edinburgh, 241 ; elected Rector of Edinburgh University, 244 ; elected for Universities of Glasgow and Aberdeen, 244 ; Rectorial address, 245 ; brings in his sixth Education Bill, 247 ; Article in Edinburgh Review (1868), 252 ; appointed Lord Justice Clerk, 253 ; re- ceives a peerage, 253 ; his lec- tures and addresses, 254 etseq. ; popularity as a public speaker, 256 ; literary work, Articles in Edinburgh Review, etc., 257 et seq. ; retires from the bench, his death, 259. 356 INDEX Moncreiff, Sir James Wellwood (Lord Moncreiff), 3, 8, 11, 22, 24, 121, 148, 153, 156. Moncreiff, Hon. Marianno Eliza (Lady Kinross), 259. Moncreiff, " Sir Harry," see Well- wood. Moncreiff, Sir William, 147. Moncrieff, Sir Alexander, 253. Moncrieffs of Culfargie, 253. Montgomery Entail Act, 108, 113. Montrose, 4th Duke of, 220. Moray, Colonel Henry Home Drum- mond, M.P., 328. More, Professor John Shank, 318. Morley, Lord, on Mr. Gladstone's junction with Lord Palmerston in 1859, 228. Mure, David (Lord Advocate), 224, 225. Murray, Alexander, of Cringletie, 1. Murray, Alexander (Lord Hender- land), 1. Murray, Archibald (grandfather of Lord Advocate Murray), 1. Murray, John Archibald (Lord Advocate), parentage and early life, 1 ; at Edinburgh Uni- versity, 2 ; at the bar, 3 ; writes in Edinburgh Review, 3 ; friendship with Sir Walter Scott, 11 ; marriage, 12 ; speaks at a Whig Meeting, 14 ; member for Leith, 17 ; ap- pointed Lord Advocate, 19 ; opposed in Leith (1835), 30 ; prosecutes the Committee of the Cotton Spinners' Associa- tion, 39 etseq. ; defends himself against Lord Brougham, 43 ; goes on the bench, 45 ; his last years, 46. Murray, William, of Henderland, 1, 3. Murray, Lady (Miss Rigby), 12, 46. Murrayfield, 1. Napier, Sir Charles, 102. Napier and Ettrick, Lord, 326. Napier, Professor Macvey, 50. National Association f orVindication of Scottish Rights, 184 et seq. Nesbit, Thomas (auctioneer), 120. Newcastle, 5th Duke of, 169, 235; see also Lincoln. Newdegate, Charles N., 206. Newington House, 318. Nicolini, pamphlet on Gavazzi, 189. Nicolson, James Badenoch, 306. Nisbet, Sir John, of Dirleton, 223. Nimmo, or Alma's Tawse, 152. Nimmo, " Sir Peter," 151. North British Review, 156. Northcote, Sir Stafford, 219, 268, 333. O'Connell, Daniel, 18. Oldfield House, 12. Oliver, Mrs., see McLaren,Katharine. Oliver, F. S., of Checkendon Court, 344. Oronsay, Island of, 126. Orsini, 200. Pagan, Dr. 38. Palmerston, Lord, dismissal of (Dec. 1851), 161 ; joins Lord Aberdeen's Government, 169 ; forms an administration (1855), 187 ; his popularity in Scot- land, 192 ; again Prime Minister (1859), 228 ; resigns (Feb. 1858), 202 ; his last victory, 235 ; effect of his death, 236. Panizzi, Sir Anthony, 119, 120. Pantheon Meeting, 8. Parker, Charles Stuart, M.P., 245, 296, 328. Parnell, Sir Henry, M.P., 29. Passmore, Abraham, of Rolle Farm, 203. Passmore, Maria Moxham, 203. Paton, Noel, 185. Patrick, Robert William Cochran, M.P., 335. Patton, George (Lord Advocate), family and early life, 238 ; Solicitor- General (1859), 238 ; elected for Bridgwater, 238 et seq. ; appointed Lord Ad- vocate, and loses his election, 240; is appointed Lord Justice Clerk, 240 ; his death, 249 et seq. Patton, James, of Glenalmond, 238, 249. Patton, Thomas, W. S., 238, 249. Pattison, George, advocate, 308. Patronage, Church, question of, 20 et seq. ; 64, 297, et seq. ; abolished, 300 et seq. Peeblesshire, united to Selkirk- shire, 241. INDEX 357 Peel, Sir Robert, in office (1834), 28 ; sent for by the Queen in 1839, 60 ; on the Scottish Church question (1840), 76 ; carries a vote of want of con- fidence (1841), 79 ; forms a Ministry (1841), 82; refuses an inquiry into the Claim of Rights, 86 et seq. ; fall of his Ministry (1846), 103. Peelites, retire from Lord Palmer- ston's Government, 187. Perthshire, election of 1840, 70. Petty, Lord Henry (Marquis of Lansdowne), 2, 10. Pickwick Papers, quoted to a jury, 266. Pisa, death of Francis Horner at, 5 . Pitman, Frederick, W. S., 239. Playfair, Professor, 9. Playfair, Dr. Lyon (Lord Playfair), 244. Pollock, Sir Frederick, 62. Polwarth, Lady, 224. Poor Laws, of Scotland, before 1845, 133 et seq. ; Commission and Report on, 240 ; Chalmers on the poor laws, 135, 138 ; Poor Law Act of 1845, 140, et seq. ; results of the Act, 144. Presbyterian Review, 152. Pringle, Alexander, M.P., 83. Prisons Act (1839), 61. Pritchard, William, trial of, 309. Public Health Act (1871), 278. Public Prosecutor, functions of, 197, 211, 212. Quarterley Review, founded, 5 ; article on accession of Queen Victoria, 33 ; on Mucaulay's History, 156. Queensberry, 7th Marquess of, see Drumlanrig. Radical War, 7. Rae, Sir William, 8, 11, 61, 74, 77, 81, 83, 129. Rainy, Dr. Robert, lectures on Church and State, 254 ; carries a disestablishment resolution in Free Church Assembly, 302 ; writes to Mr. Gladstone, 303 ; commences a disestablishment agitation, 306 ; his policy 1874-1880, 323. Ramsay Gardens, 316, 319. Ramsay, William, of Barnton, M.P., 81. Reeve, Henry (editor of Edinburgh Review), 257. Reid, John James, advocate, 323. Re id, Robert, see Loreburn. Reform Bill (1832) passed, 15; 1867, brought in and with- drawn, 290 ; 1868, carried, 293 et seq. Renton, Christina (2nd wife of Dun- can McLaren), 316. Renton, William, 317. Richmond, 5th Duke of, resigns (1834), 26. Richmond, 6th Duke of, brings in Lord Advocate Gordon's pa- tronage bill (1874), 300. Riddle, Thomas, trial of, 41. Rigby, Mary (Lady Murray), 12 et seq. 46. Rigby, William, of Oldfield House, 12. Ripon, Earl, resigns (1834), 26. Ripon, 2nd Earl, 336. Robertson, Ann (Lady Wellwood Moncreiff), 148. Robertson, Captain George, R.N., 148. Robertson, Rev. James, 140. Robertson, Patrick (Lord Robert- son), 40, 84. Roebuck, Rt. Hon. J.A., 187. Rosebery, 4th Earl of, 27, 29, 79. Rosebery, 5th Earl of, speaks on patronage (1871), 298; supports abolition of patronage, 300 ; president of a Liberal Associ- ation, 323 ; Chairman of Lord Hartington's Edinburgh meet- ing, 325 ; president of Mid- lothian Liberal Association, 329 ; under Secretary for Home Affairs, 341 ; Secretary of State for Foreign Affairs, Prime Minister, 29 note. Rosebery Entail Act, 108. Rural population of Scotland, de- crease in, 272 et seq. Ruskin, John, proposed as Rector of Edinburgh University, 243,244. Russell, Lord Edward, 92. Russell, Lord John, on the Claim of Rights, 91, 92 ; Edinburgh Letter, 101 ; on the defeat of Macaulay, 111 ; Durham Let- 358 INDEX ter, 159 ; on Rectorship of Glasgow University, 243 ; re- ceives a peerage, 236. Russell, Lady John, at Lauriston, Castle, 101. Rutherfurd, Andrew (Lord Advo- cate), parentage, 47 ; at school and college, 49 ; joins the bar, 50 ; his rapid success, 50 ; speaks at a Whig meeting, 51 ; Solicitor General, 51 ; Coun- sel in Auchterarder case, 55 et seq. ; Lord Advocate and member for Leith, 59 ; first speech in House of Commons, 61 ; instructed to prepare a Church bill, 67 ; consults the Scottish members, 71 ; his bill opposed by the dissenters, 73 ; answers Sir Robert Peel on the church question, 76 ; carries a bill to amend the law of evidence, 77 ; speech at Leith (Jan. 1841), 78 ; again returned for Leith (1841), 81; speech (March 1843) on the Claim of Rights, 90 ; is thanked by the Free Church, 93 ; Rector of Glasgow University, 97 ; votes for the Maynooth Grant, 99 ; brings in a bill to abolish tests in Scottish Universities, 99 ; speech on the Corn Laws, 102 ; Lord Advocate again (1846), 104 ; his land legislation, 105 et seq. ; carries his Entail Act, 112 et seq. ; his case in legislating, 118 ; his love of books and literature, 119 ; study of Italian, 120 ; goes on the bench, 121 ; his private life,122 etseq.; illness and death, 124. Rutherfurd, Andrew, of Crosshill, 49. Rutherfurd, Grace (Mrs. Clark), 51. Rutherfurd,Captain Hugh Blair, 49. Rutherfurd, Margaret (Mrs. Gor- don), 102. Salaries, of Scottish judges, 44 ; of schoolmasters (1853), 181. Schoolmasters, test imposed on, 230; abolished, 231. Scott, Hon. F., M.P., 116. Scott, Sir Walter, 9, 11 et seq. 12, 84. Scottish administration, question of, 232, 233. Scottish Chamber of Agriculture, 332, 333. " Scotland a Half-Educated Na- tion " (1834), 175. Scots Law Society, 149, 318. Scotsman, newspaper, founded, 5 ; article on ecclesiastical titles bill, 160 ; on defeat of Lord Advocate Moncreiff's education bill (1854), 184; on Duncan McLaren, 227 ; on the repre- sentation of Edinburgh, 242 ; on the Wigton election of 1874, 286. Schwabe, H. L., 319. Schwabe, Ottilie (Mrs. John Mc- Laren), 319. Secretary of State for Scotland, question of, 185, 186, 189, 215, 240, 260, 311, 339, 345. Sedition trials (1848), 154. Selborne, Lord Chancellor, 341. Selkirkshire, united to Peeblesshire, 241. Seton, George, advocate, 253. Shaftesbury, Lord, on death of Palmerston, 236. Shand, Alexander Burns (Lord Shand), 267, 309, Shaw, Frederick, M.P., 18. Sheffield Foreign Affairs Committee, 236. Simpson, Sir James Y., 185. Sinclair, Sir George, 87. Sinclair, Sir John, 167. Smith, Adam, 108, 135. Smith, Alexander, of Jordan Hill, 294. Smith, Sir Culling Eardley, 105. Smith, John, cotton spinner, 37. Smith, Katherine Janet (Mrs. Gordon), 289. Smith, Madeleine, trial of, 193 et seq. Smyth, Roger, M.P., 209. Smith, Sydney, 5, 46, 122. Society for the Propagation of the Gospel, 127. Speculative Society, 2, 122, 149, 150. Spencer, 2nd Earl, 28. Spring Gardens (Lord Advocate's Office), 231, 240, 313. Spiritual Independence, 63 et seq. Stamford, 211, 218. INDEX 359 Stanley, Lord (14th Earl of Derby), 26, 158. Stanmore, Lord, 76. Stevenson, Robert Louis, 3, 151. Stewart, Professor Dougald, 3, 49. Stewart, Sir George Drummond, 71. Stewart, Sir James, 50. Stewart, John Mark (Sir J. M. Mactaggart), 286, 332, 336, 337. Stewart, Patrick Maxwell, M.P., 94. Stewart, Robert, M.P., 29. Stewart, Sophia Frances (Mrs. Rutherfurd), 50, 124. Stewarton Case, 88, 93, 153. Stockdale Case, 69, 76. Stirling, William, of Keir, see Maxwell. Stormont, Viscount (4th Earl of Mansfield), 33, 70. Strutt, Hon. Henry, M.P. (Lord Belper), 337. Stuart, James, of Dunearn, trial of, 128. Sturge, Joseph, 188. Sugden, Sir Edward, 76. Sussex, Duke of, 97. Sykes, Colonel, M.P., 240. Tait, John Archibald (Archbishop), 149. Tait, Professor P.G., 344. Talleyrand, Prince, 236. Tea Room Meetings, 307. Tea Room Party, 312. Tests in Scottish Universities, 95 et seq. ; Rutherfurd attempts to abolish them, 99 et seq. ; abolished by Moncreiff, 171 et seq. Test for Schoolmasters, 230 ; abolished by Moncreiff, 231. Thesiger, Sir Frederick, 118, 119, 211. Thetford, election of 1867, 240,293. Thomson, Rev. Dr. Andrew, 174. Thompson, George, advocate, 239, 250. Times, article on Macaulay 'selection for Edinburgh (1852), 167 ; on the abolition of patronage, 305. Titles to Land Consolidation Act (1868), 270, 307. Tod, James, of Kirkhill, 225. Tod, Helen (Mrs. Mure), 225. Traill, George, M.P., 167. Treason Law of Scotland, assimi- lated to that of England, 107. Trevelyan, Sir George O. Trevel- yan, 245. Tromp, Mr., Conservative agent at Bridgwater, 239, 250. Trotter, William, Provost of Edin- burgh, 10. Tulloch, Rev. Dr., 334. Tweedmouth, see Marjoribanlcs. Twisleton, E. T. (Poor Law Com- missioner), 140. Under Secretary for Scotland, proposed, 215, 260, 313, 339. Universities, tests in Scotland, 95 ; abolished, 171 ; reform of , 199, 200 ; Universities Act (1858), 213 et seq. ; Commission, 220 ; Parliamentary representation given, 240 ; analysis of voting in election of 1868, 245. Union Bank of Scotland, founded, 162. Union between Free Church and United Presbyterians discussed, 298. Vanderbyl, Philip, M.P., 239, 250. Veto Act (1834), 24 et seq. ; working of, 52 ; declared illegal, 57 et seq. 59. Voluntary Controversy, 21. Wakley, Thomas, M.P., 42. Walcott Church, 50. Wales, general election of 1841, 80. Wallace, Robert, M.P., 61. Wallace, Mrs., see McLaren, Ottilie. Wallace, William, musical com- poser, 343. Walpole's Anecdotes of Painting, 121. Walpole, Spencer, Horatio, M.P., 181. Warburton, Henry, 238. Warren, Samuel, 80, 149. Watt, James Crabb, advocate, 203 note. Watson, William (Lord Advocate), early life and struggles at the bar, 308 ; rises into full prac- tice, 309 ; Solicitor- General, and Dean of Faculty, 310 ; personal characteristics, 310, 311 ; Lord Advocate and Member of Parliament, 311 j 36o INDEX speaks in a debate on Scottish administration, 312 ; appointed a Lord of Appeal, 313 ; the most profound lawyer in the Kingdom, 314 ; close of his life, 314. Watson, Rev. Thomas, of Coving- ton, 308. Weir, of Hermiston, 3. Wellington, Duke of, sent for, 60 ; on the Scottish Church, 73 ; on the Ministerial crisis of 1851, 159. Wellwood, Sir Henry Moncreiff, 3, 147, 148. Welsh, Professor, 95. Wemyss, Earl of, see Charteris, Hon. Francis. Westbury, Lord Chancellor, see Bethill. Western Bank failure, 211, 212. Westropp, Henry, unseated at Bridgwater, 238, 250. Whig doctrine of the constitution, 16. Whiteside, J.M.P., 190. Wigtown district, election of 1874, 286 ; of 1880, 336, 337. Wilson, Professor John (Christo- pher North), 9, 123, 167. Wiseman, Cardinal, 159. Witness, newspaper, founded, 68 ; violent article, 95 ; opposes Macaulay, 110. Wood, Lord, 155, 221. Wood, Isabella Mary (Mrs. Inglis), 221. Wordsworth, William (poet laur- eate), 9, 243. Wortley, Stuart, M.P., 118, 129. Yeaman, James, M.P., 305. Yelverton Case, 299, 305. Young, George (Lord Advocate), early life, 260 ; rapid success at the bar, 261 ; Commissioner on case of Jessie McLachlan, 264 ; Solicitor-General, 265 ; his enormous practice, 265 ; anecdotes of his manner, 266 ; elected for Wigtown district, 268 ; Lord Advocate, 269 ; called to English bar, 269 ; plans of law reforms, 269 ; proposes abolition of feudal tenure, 275 ; brings in an Education Bill, 275 ; it is postponed, 278 ; his manage- ment of Scottish business, 280 ; brings in his second Education Bill, 280 ; it is attacked by English nonconformists, 281 ; supported by Guthrie, 282 ; Scottish Education Act passed (1872), 283 ; prepares an Entail Bill, 284 ; carries a Law Agents' Act, 285 ; loses his election for the Wigtown dis- trict, 286 ; goes on the bench, 286 ; his manner as a judge, 287 ; dies in London, 288. Young, Rev. Robert, presented by Lord Kinnoull to living of Auchterarder, 53. 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