A letter to the people of Scotland, on the alarming attempt to infringe the Articles of the Union, and introduce a most pernicious innovation, by diminishing the number of the lords of session. By James Boswell, Esq

Table of contents

- [halftitle]

- [titlepage]

- A LETTER TO THE PEOPLE OF SCOTLAND.

- POSTSCRIPT.

- [publishersadvertisement]

A LETTER TO The People of Scotland.

[PRICE HALF-A-CROWN.]

ENTERED IN THE HALL-BOOK OF THE Company of Stationers.

A LETTER TO THE PEOPLE OF SCOTLAND, ON THE ALARMING ATTEMPT TO INFRINGE THE ARTICLES OF THE UNION, AND INTRODUCE A MOST PERNICIOUS INNOVATION, BY DIMINISHING THE NUMBER OF THE LORDS OF SESSION.

BY JAMES BOSWELL, ESQ.

Remember, O my friends! the laws, the rights,

The generous plan of power delivered down,

From age to age, by your renowned forefathers!

O! let it never perish in your hands,

But piously transmit it to your children!

ADDISON.

LONDON: PRINTED FOR CHARLES DILLY, IN THE POULTRY. MDCCLXXXV.

A LETTER TO THE PEOPLE OF SCOTLAND.

WHEN I presumed to write to my countrymen last year, to rouse their spirit against Mr. Fox's East-India bill, I had the happiness to find my letter received not only with indulgence, but with a generous warmth of heart which I can never forget, but to the latest moment of my life shall most gratefully remember. The fire of loyalty was kindled. It flew through our counties and our boroughs. The King was addressed: the constitution was saved. I was proud to have been able thus ciere viros; prouder still than of receiving the applause of the minister of the CROWN, which he was pleased to convey to me in a very handsome letter; upon which, however, I set a high value, considering not only the minister, but the man; and accordingly it shall be preserved in the archives of my family.

I now feel myself called upon to to write to them again, upon a subject of less magnitude indeed, but of most interesting concern. The crown is not in danger every day: GOD forbid it should.

As if Misfortune made the throne her seat,

And none could be unhappy but the great.

But what is the crown without subjects? and what are subjects without a good administration of justice? A rage for innovation has gone forth; and that rage, seconded by avarice and inordinate love of power, in different parties, according to their different interests, hath lately threatened, and still threatens, us with a violent shock to our civil judicature, by reducing the number of the lords of session from fifteen to ten, that ten may have larger salaries. This "comes home to our business and bosoms." It is a very serious alarm indeed. As to the barons of Exchequer, I shall say nothing: It is but a modern court; and we are told a person of high office in the law said, they were not so much judges as revenue officers. But the Court of Session has a vast jurisdiction. It was formed by James V. of Scotland, anno 1532, after the model of the Parliament of Paris. It consisted originally of seven churchmen, seven laymen, and a prelate as president. This was altered. They are now all laymen; and none can be appointed but who have been five years advocates or principal clerks of court, or ten years clerks to his majesty's signet; but advocates are almost always appointed. Their gowns are of purple cloth and crimson velvet, very gracefully disposed, and they still retain the sacerdotal badge of a cawl or pouch, which hangs on their shoulders, as a part of the gown, like that of the capuchins. Its jurisdiction is not only supreme, in Scotland, over all causes civil and consistorial, (that is to say, causes of the nature of the ecclesiastical causes in England, with this amazing difference, that they have a power to give a sentence of divorce equivalent to an act of parliament) but has also a considerable extent in criminal cases. And let me add, that it has acquired a kind of undefined arbitrary jurisdiction, called its nobile officium, for a full and bold account of which I refer you to Dr. Gilbert Stuart.

I cannot but complain of the secret and sudden mode of framing and bringing forward this momentous bill.—What! shall the supreme civil court of a country be diminished one third?—Shall an establishment, sanctified by the acquiescence of ages, be pulled to pieces without any communication whatever with the subjects of that country, high or low; nay, without ever consulting the bar, the faculty of advocates, that learned body who are guardians of the law—antistites justitiae. But scandal says, Mr. Henry Dundas has been applied to by some of the judges, who, after feasting at Bayll's French tavern, and raising their spirits high with wine, have formed the lofty wish of reverently paying their court to Regina Pecunia;—and Mr. Henry Dundas (sometimes called Harry the Ninth) very willing to oblige those senators, and make them his devoted humble servants, has nodded assent. Egregiam sane loudem, et spolia ampla refertis. But Mr. Dundas, not being sure that the people of Scotland are yet entirely tame, has been too wise to commit himself in this desperate business, but has only given instructions; and then Mr. Ilay Campbell, the present lord advocate of Scotland, whom his brethren did the honour to elect their vice dean, rises in the house of commons with this same pretty little bill, cut and dry, and thinks he may at once kill his five men, and in triumph call out, "Off with their heads!"—So much for Lords of Session. But let him beware! he will find them "rise with gashes on their crowns, to push him, and others too, perhaps, from their stools." Like the vision in Mr. Glover's celebrated ballad of Hosier's Ghost, "A sad troop will appear, all shrowded in dreary robes, as winding sheets, and frowning on a hostile band."

But indeed, indeed, our country is at a miserable ebb, when its great and good families are totally indifferent about every public concern, and have so little spirit, even as to their private concerns, that they never advance, like men, to the fountain head of government, but indolently or timidly suffer all to be done by some person or other who for the time is brought forward, or who puts himself forward, as a minister for Scotland. They are afraid to let their natural voice be heard by administration, but must convey their wishes through a speaking trumpet, which, I will tell them, may be pointed high or low, as he who holds it may think proper. But if the Stuarts, the Hamiltons, the Erskines, the Craufurds, the Montgomeries, the Douglases, the Grahams, the Somervilles, the Cathcarts, the Kennedies, in short, all the men of blood and of property, who ought to be men of consequence, hang back, are we to be surprized that administration appoints a locum tenens, an agent, or by whatever name he may be called; or that some able and ardent politician takes their place. I remember Archibald duke of Argyll —I remember Stuart Mackenzie—I remember Gilmour, all in their turn, bowed to, and bringing the people of Scotland to St. James's and the Treasury, as a salesman drives black cattle to Smithfield. Poor dumb beasts! why should they not walk up themselves, and bellow as they may incline?

I'll bellow out for Rome, and for my country,

And mouth at Caesar till I shake the Senate.

Then came Mr. Henry Dundas, who has made a distinguished figure at more markets than one—whether at Oxford market with Lord North, or Leadenhall market with Mr. Pitt.

There was a time when we were flattered there was to be no monopoly —when that TITUS, that Deliciae humani generis, the Duke of Portland (I give his Grace as Mr. Burke gave him me, not having the good fortune to be known to him) when He presided. —O, then! all was to go well with Scotland!—There was to be no go-between—nobody to keep back the individuals of that distant part of the island from fairly asserting their pretensions, whether from birth, wealth, or merit. But, alas! we soon found there was only a change of Dundases. Instead of Mr. Henry Dundas, we got Sir Thomas Dundas; and now we have Mr. Henry Dundas again.

Mr. Dundas is of a great law race. The family of Arniston has for four successive generations been judges in our supreme civil court, and for these two last been at the head of it as President.—A very extraordinary instance, in modern times, where it can be said, per fasces numerat avos. Why then, O why! Mr. Dundas, should you attempt to injure this ancient institution? Are you not afraid that the shades of your ancestors may disturb your pillow? "Be not too bold," I intreat you! There are some things which we will bear, and some things which we will not bear. Think, O think of ‘"Vaulting Ambition, which o'erleaps itself!"’ Besides, Sir, you are the Dean of the Faculty of Advocates. We have placed you in the chair where LOCKHART sat: we expect you will not betray us.

But, that I may now speak to my countrymen in plain, and, I flatter myself, convincing argument, let us consider the peculiar form and constitution of the Court of Session. It will hardly be believed, in England, that we have no juries in civil causes; still more strange will it seem, that we once had that inestimable privilege, and lost it—nobody can tell how. But Lord Kames has proved it.—That a country should, in the progress of civilization in every other respect, become more barbarous in its executive jurisprudence, is a wonderful and a disgraceful phaenomenon. Nay, we have no grand jury in Scotland. There is no such thing as finding a bill by the country: all criminal prosecutions are by information of the first crown lawyer, or by immediate indictment at the suit of private persons, with his concurrence; so that there is neither the security against unjust prosecutions which the verdict of our peers would afford, nor is there a certainty that crimes which ought to be prosecuted will be prosecuted. All is left to the will and pleasure of His Majesty's Advocate, the Attorney-General of Scotland, that anomalous personage whose status puzzles the House of Commons; who is a lord, but yet not noble, and to-morrow may descend to be only the honourable, or ascend to be the right honourable, gentleman.

Plac'd on this isthmus of a middle state,

A being darkly wise, and rudely great.

The Lord Advocate of Scotland has the whole power of a grand jury in his person. The fat Mr. Edward Bright, of Malden, whose print is in all our inns to amuse the weary traveller, is nothing to the learned lord. —He could button seven men in his waistcoat; but the learned lord comprehends hundreds: the grand juries of thirty counties are packed within his little circumference.

The Court of Session then is not only a body of judges, but, like the Parliament of Paris, it is a standing jury for all Scotland. And will it be seriously maintained, that fifteen is too large a number, when that is considered? My amiable and honourable friend Dempster, that rara avis of the Scottish breed, who has sat in parliament almost as long as our present most gracious Sovereign has sat upon the throne, and has shewn himself uniformly independent, uniformly benevolent, when I talked to him upon this subject, exclaimed, ‘Fifteen too few! I would rather have fifty. They talk of there being only twelve judges in England: I say there are twenty thousand—the juries—by whom almost every thing is decided; and our fifteen Lords of Session are all we have for a jury in civil causes.’—Nobly said! There are twenty thousand judges in England—judges of law as well as of fact—and I hope in GOD there ever shall be, notwithstanding all that the old Conjuror or any of his pupils can do. While a Loft and a Towers can write, and a Lee and an Erskine plead, that sacred palladium will be preserved.

If the British Parliament will give us a grand jury, and juries in civil causes (for both of which, if I am ever thought worthy of being sent into the House of Commons as an independent gentleman, I shall certainly move for leave to bring in a bill) I will answer for it that the people of Scotland (when deliberately consulted—as they ought to be, in justice, in propriety, and in common decency) will cheerfully agree to have the number of the Lords of Session diminished, because they would then have something better than their ancient aristocratical court. And with exultation I can tell, that, so far as the people of Scotland can—in the limited privilege of Juries which they have—they do now exercise their constitutional right in its full extent. We have a Smellie, who has, with a calm but an undaunted spirit, pointed it out to his fellow citizens in a well written discourse; and a few months ago William Spence, a young matross, for whom I was counsel, was indicted by the Lord Advocate for felonious fire-raising. He was prosecuted by his lordship in person, with all his address; and the Lord Justice Clerk, the Vice President, of the High Court of Justiciary, gave a charge, with all his his ability, to find him guilty. But a respectable jury acquitted him; and, as I hope for mercy from the Judge of all the earth, had I been one of their number, I should have been clear to join in the verdict. I will give up my own opinion to no human authority.

In the present form and constitution of the Court of Session, there is occasion for at least the full number of judges which were at first appointed, and which has remained undiminished now for two hundred and fifty three years. It is remarkable that when James V. instituted the court, the number of the judges was thought small. Take the words of Buchanan Hist. lib. 14. cap. 32. ‘Joannes Dux Albinus, a pontifice Romano impetravit, ut summa pecuniae annua quanta satis esset ad paucorum judicum salarium solvendum imperaretur ecclesiastico ordini universo, a singulisque pro modò, census exigeretur. ’ He tells us, it was difficult to obtain money for salaries even to those few; so much stronger then too was the love of money than the love of justice—and he sternly delivers his opinion that the institution did not produce the good that was expected from it: ‘Omnium civium bona quindecim hominum arbitrio sunt commissa, quibus et perpetua est potestas, et imperium plane tyrannicum. ’

The perpetua potestas is the grievance of a standing jury; and the imperium plane tyrannicum must, in the nature of things, reside in a body of men who possess at once the province of judge and of jury; nay of common law judges and equity judges; who are both King's Bench and Chancery, and whose decisions therefore may be a compound of law and of fact and of equity, as its members may be differently moved.

It is this which makes it of infinite consequence to us to preserve all the judges we have, as long as the court retains the same constitution; for it has been found in practice, that, notwithstanding the staggering objections to it in theory, this same court of fifteen has been so balanced and mixed, and tempered and mellowed, by the workings of various qualities, in the course of time, that upon the whole it has done very well.

There may, to be sure, come a DOUGLAS CAUSE, which is too vast an object for the throw of such a complicated die. Non nostrum est tantas componere lites. That is not much; because for great causes we have an appeal to that august tribunal, the House of Lords. But, as the expence of an appeal is more than the value of almost every cause that the court of session decides, the right of appeal is nothing to the greatest number of our suitors.—We are therefore concerned that Innovation should be prevented, as we may fear, but cannot foresee its effects, and as the imperium of the court would be still more tyrannicum in ten than in fifteen, as spirits have more force as they are more compressed by distillation.

Our ancestors took care to have it solemnly stipulated in the 19th article of the Union, ‘That the Court of Session, or College of Justice, do, after the Union, and notwithstanding thereof, remain in all time coming, within Scotland, as it is now constituted by the laws of that kingdom, and with the same authority and privileges as before the Union, subject nevertheless to such regulations, for the better administration of Justice, as shall be made by the Parliament of Great-Britain.’

Is it possible, think you, by any artifice of words, by any little quirk of any sort, to explain away this article, and to maintain that the excepted power to make regulations for the better administration of justice, in a court which is to remain in all time coming as now constituted, shall be understood to give a licence to destroy that very court itself, by changing its constitution? Is a court of ten the same with a court of fifteen? Is a two-legged animal the same with a four-legged animal? I know nobody who will gravely defend that proposition, except one grotesque 'philosopher, whom ludicrous fable represents as going about avowing his hunger, and wagging his tail, fain to become cannibal, and eat his deceased brethren. It is clear, that the substance must be preserved, though the accidents may be varied. The Court of Session, the Quindecem Homines, must remain, unless by consent of the people of Scotland themselves, though the proceedings of the court, the modes of administrating justice by those fifteen, may be regulated occasionally, as the British Parliament, in its great wisdom, shall see fit. If any man can entertain a doubt of this, if he is capable of having his understanding so perverted, I cannot argue with him.

Is it a light matter then to infringe the Articles of the Union?—My countrymen, hear me! I accost you with a warning voice.—Have a care!—I myself do fairly acknowledge that I venerate and love the ancient Hierarchy, though, like Whitefield, of whose pious and animated society I had some share, I can communicate with all sincere Christians. But you in general think differently, and your kirk, your Presbyterian establishment, stands just upon the same ground of security that the Court of Session does. No doubt it may be abolished by universal consent, or by consent of a majority of the people of Scotland; for that is my firm opinion of the import of the articles of the Union. But the British Parliament cannot abolish it; for the British Parliament sits under those very articles, and is limited by them. But, once yield the principle, were it in the smallest iota, and there is an end of your security.

I shall take leave to press upon you the apprehension of what I believe we shall all agree in resisting; I mean that, if the articles of Union should be infringed, there might then most probably be a prodigious innovation in our land-tax. And this concerns not Scotland alone.—My lords and gentlemen of the English counties, where the land-tax is low, on you I call. If Innovation is thus to stride at large, the equalizing system may be extended: and let me tell you, it is not you that can prevent it. You are too few. It is to Scotland you owe your safety. Government at present dare not equalize the land-tax. Scotland would rise to a man, and assert the articles of the Union. But the praefervidum ingenium Scotorum may be subdued.—There is a melancholy gradation in the old song of Waly, waly, up the bank:

I leaned my back unto an oak,

I thought it had been a trusty tree;

But first it bowed, and then it brake,

And so did my true love to me.

Let not the Scottish spirit be bowed. Let LOWTHER come forth, and support us! We are his neighbours. Paries proximus ardet. We all know what HE can do: HE upon whom the thousands of Whitehaven depend for three of the elements: HE whose soul is all great—whose resentment is terrible; but whose liberality is boundless. I know that he is dignified, by having hosts of enemies. But I have fixed his character in my mind upon no slight inquiry. I have traversed Cumberland and Westmoreland: I have sojourned at Carlisle and at Kendal: I know of the LONSDALE CLUB at Lancaster.—LOWTHER! be kindly intreated!—‘Come over to Macedonia, and help us!’

Innovation is, in my mind, a very perilous experiment. I respect the ancient Barons for their Nolumus leges Angliae mutari; and now that Dr. Johnson is gone to a bettr world, I bow the intellectual knee to Lord Thurlow, who, with inflexible wisdom, stops the tide of fashionable reform. It was Johnson who confirmed me in my opinion of that mighty Sage of the law and the constitution. Before his promotion to the high office, for which he seems to have been formed on purpose, the Doctor said of him, ‘I honour Thurlow, Sir.—Thurlow is a fine fellow! He fairly puts his mind to your's.’— Long, long may he put his mind against those who would take even one stone out of that venerable fabrick, which is the wonder of the world!

Mistake me not, my countrymen, as if I had changed my opinion against the nominal and fictitious votes in our counties! These are no part of our old constitution: They are modern tricks, invented by cunning lawyers, to cheat the real Freeholders. These will, I hope—these shall be abolished! While I would sacredly guard the constitution, I would sweep from it the cobwebs, with all their vermin.

Innovation frightens me, because I never can be sure what will come next. ‘Hitherto shalt thou come, but no further; and here shall thy proud waves be stayed!’ is not for mortals to say. My Lord Marchmont did me the honour of a visit a few years ago, and made a remark, which still vibrates in my ear: ‘Sir, this country has been governed by wise men; and we have had no notion what mischief fools could do.’—At another time, talking of this very subject of lessening the number of judges in Scotland, which has been formerly mooted, his lordship said, ‘No. It must not be. Scotland is far from the sun of government, and must be lighted by many lustres!’—

"There the bright flame was shot through Marchmont's foul!"

The present attempt puts me in mind of one of the many good stories which I have heard my father tell.— An Earl of Seaforth took it into his head that he would pull down Bran castle, the ancient seat of his family. The clan was alarmed. The caperfey (the deer's head, the crest of the Mackenzie's) was displayed. The brave Mackenzies took fire, assembled, and came to him in a body. ‘My lord, this shall not be! Wiser men than you built this castle! You shall not demolish it!’—There was the true spirit of clanship: not a slavish subjection to an individual; but a voluntary attachment to their patriarchal father and lord—to the family —to the throne.

I abhor annihilation—and five of our judges shall not perish, if I can prevent it.—What, in the name of goodness, is the motive to this violent measure? Does the country complain that there are too many judges? No.—Do the judges themselves complain? I trust, No.—For what, I pray you, is the Court of Session? Why, it is an aggregate of fourteen separate and distinct subordinate courts, and one Court of Appeal. There are fourteen ordinary lords: Each of these has his own roll of causes, in one half of which his judgement is allowed to be final. The Court of Appeal is the whole body of those Lord Ordinaries, with the Lord President at their head; and this Court of Appeal sits five days in the week to review judgments of the Ordinaries.—Now let us consider how business is done in this court, or, more properly speaking, in these courts. It is done chiefly in writing, and most voluminous writing it is: there are minutes, representations, answers, replies, duplies, triplies, memorials hinc inde—cum multis aliis, que nunc perscribere longum est; so that each process (as the papers in a suit are called) makes a thick bundle, which is carried to the judge's house; and this he must peruse, and afterwards put his interlocutor upon it in writing, and authenticate it by his subscription. Now I know, and every man acquainted with the court knows, and it can be proved by all the members of the College of Justice, that it is with the utmost difficulty that even the fourteen judges whom we have, can get through the business with reasonable dispatch. How is it possible then that it can be done by a third fewer people, be they ever so laborious? Nine Dukes of Richmond could not do it.

I could see some meaning in diminishing the Court of Review, and letting only the ten senior judges, or perhaps the five senior judges, sit in the Inner House, that the Court of Review might move quicker, by being less unwieldy, and the other judges might have more time to ripen and decide causes in the first instance, which is the most laborious part of the business. That I could understand, as coming within the power conceded, in the articles of Union, to make regulations. But to make ‘the labourers few, when the harvest truly is great,’ seems to me to be very strange policy.

And here I have an argumentum ad homines. I will not believe that the Lords of Session themselves are so unconscientious as to approve of this measure, though Rumour, with all her tongues, has wantonly said they are for it. My argument is this:— There is not one of them who has not, again and again, said, what I have just now stated, that the duty of his office is very great, and that in session-time he is quite harrassed, he has so much to do.—Will they then undertake to do more, that they may get a little more money? I hope not. As it must be sure that they are perfectly innocent of so heavy a charge, I may put it in strong words—‘Either they have been liars; or, They mean to be cheats. ’ That is the infamous charge which their approbation of lessening their number, without lessening or shortening the business of the court, would involve.—I beg ten thousand pardons for even uttering such coarse epithets; but my indignation is roused, that any creature whatever should have the audacity to impute to the judges of my country so abominable an alternative.

Quid non mortalia pectora cogis auri sacra fames? is an exclamation which keeps pace with mankind, from age to age. But, surely, we ought to suppose judges have learnt better things, and have extirpated from their hallowed breasts, ‘the root of all evil.’—How injurious is it to imagine they will be like some impudent sluts, who, for more wages, will undertake to be both cookmaid and chambermaid—Delicate coalition! —The Lords of Session are, or should be, Gentlemen. Shall we make them a parcel of Scrubs?—‘Of a Monday I drive the coach; of a Tuesday I drive the plough; on a Wednesday I follow the hounds; a Thursday I dun the tenants; on Friday I go to market; on Saturday I draw warrants; and a Sunday I draw beer.’

Suppose it should be thought right to increase the salaries of the Lords of Session; is there no way of doing it but making two-thirds of them devour the rest, like Pharaoh's lean and fat kine? Is the state so poor, that we must adopt a measure similar to the barbarous permission in China and Otaheite, to murder their children, lest they should not have food enough? Six thousand pounds a year would make them up £1000 each; and cannot that miserable sum be spared off some corner of the sinecure establishment? I persuade myself that the people of Scotland themselves would submit to a census, in order to ransom their court. If the Judges are poor, let them hold out the Mendicant pouch, and receive our benevolence! I, for one, would cheerfully pay my quota, rather than suffer so dangerous an amputation to be botchingly performed upon our old judicial body.

But is it quite clear that there should be an augmentation of their salaries? The Lord President has already £1400 a year: every Ordinary Lord has better than six hundred guineas; and six of their number are also Lords of Justiciary, of whom the Lord Justice Clerk has £400 a year, and each of the other five has £200 a year. Besides, every one of those six is allowed £300 a year for circuit expences; and now that they have obtained an act of Parliament, allowing them to stay only three days at each assize-town instead of six, as they were formerly obliged to do (while the same allowance for expences is quietly continued) they have, upon my word, very comfortable provisions. The Justiciary gown is an excellent object of ambition, and an encouragement for laudable exertion to the Ordinary Lords. But even without that, they have a very decent premium from the state, and may live very well in Scotland, as judges should live; ‘not in rioting and drunkenness,’ indeed, but in grave abstraction, as becomes their office. Dr. South's pulpit joke, upon the wages of sin being death— ‘Poor wages, that a man cannot live by’—will not, in my opinion, apply to all offices. The state, in many cases, is only to help a man to live; not wholly to support him. The state should enable him fully to defray the additional expence occasioned by the office which he holds: but he is a hungry hound indeed, who comes into an office of respect and experience, such as that of a judge, with nothing at all of his own, neither family estate, nor fortune acquired by practice. I own I should think a man in such circumstances ought not to be made a judge: either his birth must be mean—his abilities small— or his conduct imprudent.

Were there a difficulty to find men of merit willing to be made Lords of Session, by reason of the salary being too small, I could understand this procrustian expedient: but let us at least wait till that is the case, which, well Mr. Dundas knows, it is not as yet, by any means. Will he tell me that the salary of that office is not sufficiently considerable, for which Mr. Alexander Gordon, brother to the Earl of Aberdeen, uncle to the Duke of Gordon, and a man of good understanding, experience, and integrity, solicited for years, and—pudet haec opprobria! might perhaps have been soliciting still, had not a political wave, in the tempest of last year, thrown him into port.—An office desired by Mr. John Maclaurin (filius Colini fama super aethera noti, and a son of no common talents).—An office which would be accepted by Mr. William Nairne, our Vice-Dean, whose character truly exhibits a heaven-born judge.—An office which would comfort, which would satisfy, Mr. George Wallace, whose knowledge, application, and honesty, none will deny; whom Lord Mansfield has praised, but not promoted. Laudatur et alget.

I could with pleasure give a long list of my deserving brethren. To us, it is not fair. It is unjust to lessen the number of prizes after the lottery has begun drawing; after we, by an expensive education, and much time and labour, have purchased our tickets, in the faith that our chance for a prize is to be what it ever has been. As for myself, I do most certainly believe that I am now writing from pure motives, because I have at present no wish for the serious and important office of a Lord of Session. I have a confidence (perhaps too great a confidence) in my abilities; and therefore will try my fortune, for some time at least, in a wider sphere. But this I declare, that though the situation seems to me too confined, I never thought the salary too small.

Let us be cautious of augmenting the salaries of our judges. Judges, like men of genius and learning, nutriendi sunt non saginandi.—A gown in Scotland should not be too good a place, lest it become altogether an object of political preferment. We have already several noble lords who are of the Faculty of Advocates, and who might perhaps condescend to take such a loaf. Lord Salton might think it a snug thing. My cousin, Lord Cathcart, might see it to be better than a regiment. Lord Stair might add it to his finances. Lord Cassillis might chuse it by way of otium cum dignitate.—And the gentlemen whom I have mentioned, with an Erskine, a Blair, an Abercrombie, a Grant, a Cullen, and all the rest who have honourably borne the heat of the day, might languish and die, without ever obtaining that rank to which they will in justice be entitled.

Take the Scottish Bench as it is now endowed—take it in a pecuniary view: It is a tontine for our sons. In no country in Europe, but Scotland, is the profession of the law an etat, a rank. Many a gentleman with us enters advocate merely to have a feather in his cap. The prime society of Edinburgh, is lawyers. They give the tone, as, arbitri elegantiarum, they rule the theatre. They make balls for the ladies; and once (I suppose to shew the prodigious extent of their power) they let the nation know that they could proscribe even a beautiful Duchess, the very soul of gay festivity. Black, law black, is the common dress of the gentlemen of Edinburgh, by choice, as at Geneva and Lucca, by an oeconomical regulation of the state, a sumptuary law: and hence, when Foote was amongst us, he used to call black the Edinburgh hunt. It exalts our gentlemen to think they may be judges, as, by calculation, it has been found that there are two vacancies for every three years. They are continually looking upwards.

Os homini sublime dedit, coelumque tueri

Jussit, et erectos ad sidera tollere vultus.

I must speak plain, and say, that I fear this crude scheme of diminishing the number of the Lords of Session has something in it more dangerous than you are aware of. ‘More is meant than meets the ear.’ A politician's lust of power is exorbitant. If he can but have the supreme tribunal of Scotland of his own forming, what may he not do? To say nothing of our property, it is now very well understood that the whole political interest of Scotland is in the hands of the Lords of Session; for they ascertain the validity of all the votes, whether in our counties or in our boroughs: and when we afterwards bring our contested elections before a committee of the House of Commons, we have the mortification to find that Mr. Grenville's bill is to us, on the north of the Tweed, as if it were not. In vain do we plead, in vain do we press upon the committee, the absurdity, the gross iniquity, of an interlocutor. A resolute Caledonian Nominee tells them the case has been decided by the only competent court, which statutes have invested with the exclusive power of trying votes;—and honest John Bull believes this, and acquiesces, never considering that the great law of parliament, the inherent right of the House of Commons to judge of the qualifications of its own members, must ever be paramount to the jurisdiction of particular subordinate courts.—I am sorry, Mr. George Byng, that I cannot appeal to you, at present, as a Member of Parliament, for the truth of what I am maintaining: For though I differ from you, in my political creed, as far as the east is from the west, I think you an useful and active watchman of the state. And I am never unmindful of your civility to me, as a counsel, when you sat Chairman of the Ayrshire Committee. But you may tell your friends who are in parliament; and Messieurs Dudley Long, Praed, Bankes, Duncombe, and several more who were of that committee, will remember the piteous tale.

I should oppose any diminution whatever of the number of the Lords of Session, because it would make "the law's delay" be more grievously felt: but, above all, I dislike this particular plot, to revive the Decemviri. It is ominous. In the words of Livy I will say, ‘Non placere nomen; periculosum libertati esse.’

Who seconded the King's Advocate's motion for leave to bring in this bill—this odious bill of pains and penalties?—It was Sir Adam Fergusson; a man who has vexed me not a little, by his political success in our county, against my wishes. He is one whom Mr. Dundas has selected to hold up as an instance of the plenitude of his power.

Do any of you want to be informed of Mr. Henry Dundas's power? I dare say not. Care is taken that its full extent shall be proclaimed as far as Orkney. Yet let us contemplate a striking instance; it would make a picture for the exhibition, or a scene at Astley's. Behold him in your Metropolis, which the death of Sir Lawrence Dundas left open to him.—With his right hand he has moved the LORD PROVOST, Hunter Blair (gold chain and all) from his political base.—With his left, he has thrust in as representative of the citizens of Edinburgh—Whom?—a respectable merchant? No.—A prosperous tradesman? No.—A Coutts, the father of the great establishment in the Strand, London? No.—A Kerr, whom Pelham loved? No.—A citizen of any sort, good, bad, or indifferent? No. No. No.—Whom then? Why Sir Adam Fergusson, advocate, the late member for the county of Ayr! Sir Adam Fergusson wrote a circular letter against peers interfering in our county election, and several very worthy gentlemen joined the standard of independency, as they imagined, which he erected. Carrying them along with him, and yet "having his peers as well as we," he contrived to possess, for two parliaments, the representation of Ayrshire, by means of those superiority votes, which that county has declared to be nominal and fictitious, while the REAL INTEREST was unrepresented. Sir Adam Fergusson last year, as we are told, made overtures to the Earl of Eglintoune, and formed a coalition with his lordship. That he was not elected, we know; that he voted for his former opponent, we know; and it is said he supports the earl's friend for one parliament, and the earl is to make him member next parliament[*] —if he can. I have never heard his lordship say that this report is true: but if it is, the noble earl must not take it amiss, if some of the best friends of his family should disdain what they think degrading to him, and feel obnoxious to themselves. Amongst those friends, I myself am one of the warmest, both as an enthusiast for ancient feudal attachments, and as having the honour and happiness to be married to his lordship's relation, a true Montgomerie, whom I esteem, whom I love, after fifteen years, as on the day when she gave me her hand.— But I have an objection to Sir Adam Fergusson, on account of a paltry money question, which being now under the arbitration of three of our Lords of Session, I forbear to exhibit it, till the result is known.—Mr. Macadam, of Craigengillan, as able and as spirited a man as any in his Majesty's dominions, and Sir John Whitefoord, who is honour itself, both gentlemen of extensive interest in Ayrshire, have also objections to him, which they have stated to me, and will tell any body who thinks it worth while to ask them.—In these circumstances, the House of Eglintoune can hardly expect that the great county of Ayr, the Yorkshire of Scotland, will be brought implicitly to wheel, and vote for sir Adam Fergusson, merely that a bargain, which should never have been made, may be fulfilled. I myself have reason to hope, that many of the real freeholders of Ayrshire will support me at the election for next parliament, against which I have declared myself a candidate. Colonel Montgomerie has had the great honour of being chosen by the real Freeholders. May I not have it in my turn? Ed anche Io son pittore. By the time this parliament is over, he may be content to be ‘Vejanius, armis Herculis ad postem fixis.’—I shall certainly stand, upon the substantial interest of the gentlemen of landed property; and if, upon a fair trial, I should not succeed in ‘that object of ambition, which I have most ardently at heart,’ I have resources enough to prevent me from being discontented or fretful. Perhaps Sir Adam Fergusson may support me. Why should he not? I know of no objection the honourable baronet can have to me, though I am sorry that I have an objection to the honourable baronet. I have asked his vote and interest by a letter. His answer has neither granted nor refused my application. He waves it on the common civil ground, that it is too soon to decide. In the mean time, I shall endeavour to deserve the support of the real freeholders, by exerting myself, as much as I possibly can, to serve either the county in general, or individuals of it; and when a man does the best, he can, he may perhaps, have his reward. But this country-city member has led me off from Edinburgh, to which I now return; and I do say, that, if issuing an effectual congé d'elire, by which Sir Adam Fergusson is made member for the capital of Scotland, be not power with a witness, I am at a loss to conceive what power is.

As to all this power assumed by Mr. Dundas, I must say miror! But I certainly do not blame him. As Cato says, when his gallant son Marcus is brought in dead, ‘Who would not be that youth?’—The proverb says, ‘A living dog is better than a dead lion.’ What then must a living lion be? But under what genus, under what species, are they to be ranked, whose pusillanimity is the cause that this lion alone domineers in the forest? Our late and present situation brings to my remembrance some verses in an old poem, which I have heard my father repeat: they are a kind of imprecation, applicable to a coalition which in the last age took place in Scotland.

[*] May eke thae men o' mony wimples,

Sir James and Sir John Dalrymples,

[†] Wi' their new allies, the Dundases,

Rule[‡] aw our lords and lairds like asses!

Yet I will do Mr. Dundas the justice to declare, that, large as his power is, he has not much abused it. He has, indeed, taken very good care of his relations! And why should he not? Though, to be sure, flesh and blood must feel his having put his young nephew over the heads of I know not how many of us, as Solicitor General. But I do not believe that he has been cruel, oppressive, or vindictive. I know but of two wrong things that he has done. One was attacking Sir Lawrence Dundas in the county of Orkney, ‘in his own manour, where he was a father to the people;’ as that hospitable, that splendid, that imperial baronet, said to me, with tears in his eyes. The other was persuading my honoured father, a venerable judge, in the decline of his life, to embark in county politicks, from which he had ceased for twenty years, and make a parcel of unsubstantial votes, which he abhorred, in order to support Sir Adam Fergusson in Ayrshire, against the old and the real interest of the county. But both these instances were the effects of politicks which I see to be poison to the mind. I have therefore no more objection to Mr. Dundas's being sole Protector of Scotland, than any other man, if we must be so ruled. Nay, I have an interest that he should be the person. For there is an hereditary friendship between our families. We were at college together. We have oft enjoyed

—The "happier hour

"Of social pleasure.—"

And I trust to the generosity of his feelings, that, as he knows he once did me a severe injury, which I have from my heart forgiven, he will be anxious to make me full amends, if ever it shall be in his power. The desire of elevation is as keen in me as in himself; though I am not so well fitted for party exploits.

As Nero wished that the people of Rome had but one neck, that he might, if he pleased, cut them off at a single stroke.—So a deep, an artful politician, will be desirous to contract the body which he wishes to command. It is easier driving four horses in hand than six. Besides, while there are fifteen judges, the danger that they may not be all tractable is proportionally multiplied, when compared with the number ten. There may be a proud, an eloquent Alemoor, who will watch like a dragon;—a sturdy Elliock, who will not bend;— a firm Stonefield, who not only has a will of his own, but if one in high place, trusting that he is sheltered in his situation, presumes to be coarsely insolent, can tell it him in his ear, aye, and to his beard; —an honourable Rockville, who being of higher rank than any of them, before he became a judge, will not stoop—will not truckle—will not be led—but will deliver his own honest good sense with the mild dignity that becomes him.

It is very agreeable to consider, that one bad judge cannot contaminate a number who are good, yet, when we take the converse of the proposition, we shall find one good judge can prevent the evil of many bad ones. He can hold up truth and justice so conspicuously, that bad judges have not hardiness enough to turn aside from them; and, if they should, he can alarm the country. When a man of probity and spirit, a Lord Newhall, whose character is ably drawn in prose by the late Lord President Arniston, father of the Treasurer of the Navy, and elegantly in verse by Mr. Hamilton of Bangour —when such a man sits among our judges, should they be disposed to do wrong, he can make them hear and tremble. My honoured father told me, that Sir Walter Pringle "spoke as one having authority," even when he was at the bar. "He would cram a "decision down their throats."

Duncan Forbes of Culloden, when Lord President of the Court, gave every day as a toast, at his table, ‘Here's to every Lord of Session who does not deserve to be hangedl’ Lord Auchinleck and Lord Monboddo, both judges, but since his time, are my authority for this. I do not say that the toast was very delicate, or even quite decent; but it may give some notion what sort of judges there may be. It is well known that Forbes, by the single weight of his character, assiduously and boldly urged, made a very great alteration to the better upon the court, and shewed Unum Hominem pluris valuisse quam Civitatem.

A number of judges, taken from different parts of the country, diffuses and divides that private and imperceptible influence which must ever be in a narrow country. One prejudice is checked and counterbalanced by another. A judge from the north of the Tay is corrected by a judge from the south of the Tay, and is again corrected by him, in his turn.—I solemnly declare, I mean no reflection against the Lords of Session, farther than that they are not exempted from the frailties incident to man—that human nature is human nature every where, and in a narrow country is more liable than in a great country, to what I shall call—honest bias.

With a plausible appearance, it has been propagated from company to company, that, were there fewer Lords of Session, there would be more security from their responsibility; as disgrace, which is light when shared amongst a number, falls heavy upon a few.—But against this you shall have an unanswerable argument.— ‘If they are honest and honourable men, they will not be the less so that they are fifteen. If they are not, and mean to do wrong, a junto of ten can do it with more facility.’ Non meus hic sermo est: I owe it to Lord Palmerston, from whose conversation there is always something to be borrowed. I humbly thank his lordship for it, and beg he may pardon my imperfect report of it. He gave it me at Lord Ossory's. I cannot refrain from mentioning the place; because I am very vain to fit at the table of FITZPATRICK: the respect for whose ancient and noble blood is not lessened, but increased, by the character of its present representative; which, as I feel, is saying a great deal. I flatter myself FITZPATRICK was convinced. If he was—I'll answer for it, all the world shall not make him flinch.

And now, my countrymen, let me intreat you to assemble again in your counties, and boroughs, and corporations, and publick bodies of every kind, and petition Parliament against diminishing the number of the Lords of Session; unless Parliament will totally alter the judicial procedure of Scotland, upon some wise plan, after it has received your approbation. I would also have you to address the KING against so alarming a measure. It is the glory of the reign of GEORGE III. that he has given independency to his judges. His Majesty will graciously listen to what you humbly and honestly tell him, relative to what he has much at heart—the good administration of justice in his dominions.

Do not despond, and imagine that English Members of Parliament will be totally inattentive to what so much concerns you. My old classical companion, Wilkes, (with whom I pray you to excuse my keeping company, he is so pleasant) did indeed once tell me, when I asked him to attend a Scottish contest in the House of Commons, ‘No, no! Damn it! Not I! I'll have nothing to do with it! I care not which prevails! It is only Goth against Goth! ’—But he is now an older member of the great council of the nation, and I hope will not grudge to take a little trouble for you, by way of doing penance for his biting and scratching in the North Briton.

You may hope for aid from the Lord Rector of the university of Glasgow, Mr. Burke, who dislikes and dreads reform in parliament; who spoke this very session against it like an angel, and whose benignant heart will feel for your just anxiety. To Mr. Burke I was much obliged when he was in power; and it grieved me that he embraced, what in all sincerity I thought such a measure as justified his removal from office;—for his interest is dear to me as my own. By his removal, the King's administration was deprived of the assistance of that affluent mind, which is so universally rich, that, as long as British literature and British politicks shall endure, it will be said of Edmund Burke, "Regum equabat opes animis."

You will be listened to by my gallant Colonel James Wortley Stuart, who, for sterling good sense, information, discernment, honour and honesty, and spirit, is not exceeded by any of them. As diminishing the number of our judges would diminish the influence of the Crown, he probably will not like it.

You will be listened to by that brave Irishman, [*] Captain Macbride, the cousin of my Wife, and the friend of my heart; a man whose valour has resounded in so many parts of the ocean, and whose seat in parliament has not been purchased by bribery of servility, but given him by a free election. He has come into the House of Commons, borne upon the swelling bosoms of the worthy electors of Plymouth, who, knowing him best, are the best judges of his merit, and have been most eager to reward it, by a triumphant testimony, such as heroes were honoured with in old Rome.

I think you may also depend upon Mr. Lee, with whom my intimacy has been chiefly formed since I made him dangle at the end of a rope, as Attorney General, in my East-India letter. —(What liberality of mind must he have!)—Though he is not such a bigot as I am, and would be glad to have some reform in Parliament, yet I dare say, when he is made acquainted with the state of this case, he will manfully oppose the attempt. I love Mr. Lee exceedingly, though I believe there are not any two specifick propositions, of any sort, in which we exactly agree. But the general mass of sense and sociality, literature and religion, in each of us, produces two given quantities, which unite and effervesce wonderfully well. To his great reputation, as a barrister, my voice can add nothing; but he has kindly enabled me to bear testimony to his private worth. I know few men I would go farther to serve, than Jack Lee.

Have confidence in Sir Matthew White Ridley; that stately, that pleasing Northumbrian, who exhibits an instance of, what it is strange should be rare,—independent opulence!— He was a General in the late tumultuous parliament army. He fought, he encouraged, and he cheered,— with a ‘Fight on, my merry men all!’—till his wisdom, and his tenderness for his country, prevailed over his pride; and he was the first to sall back, and give the signal for retreat. If my sanguine hope has not deceived me, Sir Matthew will be for us.

I even think it possible that you may be protected by the MAN—I will not say of the People—for I am too much in earnest to fill my mouth with party cant:

Away, away with blue and buff,

And all such wretched foolish stuff!

The time's "pale cast," which "[*] sicklies" you,

Demands a grave—a solemn hue.

But I will say, the man of great, of extraordinary abilities,—of most extensive, of infinite political knowledge —who can do much good, if he will; and we may hope he shall, when the adjustment of circumstances above my reach will let him:— Yes, my friends, Mr. Fox may protect you. His clear understanding can at once distinguish between a Reform, which promises some beneficial consequence, and a Demolition, which it is demonstrated must be ruinous.

And shall we be so unjust to the Minister of the CROWN, to the second WILLIAM PITT, as to apprehend that HE will not hear us? HE who first took, HE who still holds the reins of government, with the hearty concurrence, the generous applause, of an admiring nation! HE whose nobleness of soul has so remarkably shewn how open he is to conviction! I can have no doubt that, when he has made himself master of the subject, sees that the articles of the Union would be infringed, and knows how very unpopular this bill is—I can have no doubt that he will send for the Minister for Scotland, and tell him, in a determined tone, ‘Dundas! Dundas for shame! Here is a rock upon which we might have split, as Fox did upon his India bill. I'll hear no more of this Court of Session job! It is a monstrous measure! Let it be quashed!’

GREAT SIR! forgive my thus presumptuously, thus rashly, attempting, for a moment, to forge your thunder! But I conjure you—in the name of GOD and the KING I conjure you—to announce, in your own lofty language, that there shall be a stop put to this conspiracy, which, I fear, might have the effect of springing a mine that would blow up your administration. Believe me sincere, when I now tell you, that, although I, with all deference, cannot join you in one point—a reform in parliament, —for the reasons I have given,—such is my confidence in your talents and virtues, such my sense of the good you have done, and my hope of the good you are yet to do, that, though not blest with high heroick blood, but rather, I think, troubled with a natural timidity of personal danger, which it costs me some philosophy to overcome, I am-persuaded I have so much real patriotism in my breast, that I should not hesitate to draw my sword in your defence. It is the ROYAL CAUSE. I tremble at the recollection of that parliamentary anarchy from which your magnanimity delivered us. A return of such confusion would be now a more dreadful calamity; we should be forced, in wild dismay, to exclaim, ‘Chaos is come again!’

My countrymen! have I not heartened you somewhat, by pointing out to you so many eminent men, to whom we may fly for refuge, and obtain it?

Sir George Saville, whose name, though he be dead, is enough to rouse every dormant spark of public spirit, had a political maxim which is striking, and, I beleive, will be found true: He said, that, in whatever way any nation was governed for any considerable time, it ought to be governed in that manner. It was proved, by experience, that that kind of government was adapted to that people. If they maintained their freedom, they ought to be free: if they submitted to slavery, they ought to be slaves[*]. Do not, I beseech you, my countrymen, allow prescription to run against you! Do not let your equity of redemption be foreclosed!

What says our own Fletcher of Saltoun? ‘There is not, perhaps, in human affairs, any thing so unaccountable, as the indignity and cruelty with which mankind suffer themselves to be used, under pretence of Government. ’

When Peter the Great, Czar of Muscovy, was in England, he wished to see the punishment of keel-hailing. He asked the King to shew it him. ‘Sir, (said he) I cannot, unless a man be found who deserves it.’—‘That shall be no objection (said the Czar). Take one of my fellows.’—The King of England nobly replied, ‘Know, Sir, that when a man, of any nation whatever, has set his foot upon English ground, he is a free-man: he is entitled to the protection of the laws of this country.’

The application of this illustrious anecdote, to the protection which the People of Scotland may expect from English Members of Parliament, is very obvious. We are now one people, though ‘a river here, there an ideal line,’ divides what once were only sister kingdoms. Are not we then, on the north of the Tweed, to participate of British moderation in government, as well as those on the south of the Tweed? And are any despots of our own land to be permitted to oppress us? I hope not. —We may then say to the English Members, in the strong language of Dr. Young, in one of his tragedies— "O guard us from ourselves!"

It will be in vain to attempt hurry and evasion, and cajoling;—it will be in vain to employ what powers of lively ridicule our task-masters possess, and to represent this alarm to be similar to the absurd hue-and-cry against the change of the style, which Hogarth so exquisitely burlesques: ‘Give us our eleven days!’—‘Give us our five Lords of Session!’—Believe me, it is no joke, and it cannot be made like a joke. A violation of the articles of the Union, and an extinction of one third of our judicial relief, which is, even now, inadequate to the wants of our country, are serious things; or else ‘there's nothing serious in mortality.’ Shall one of the troubles of life (which make the pensive Hamlet balance, whether one ought to throw off the burthen of it) be augmented by another? Shall "the law's delay" be rendered still more tedious, by stretching ‘the insolence of office?’

In my zeal to prevent, what appears to me a most pernicious innovation, I may have been somewhat intemperate in my expression. I hope allowance will be made for it. For, though agitated and indignant, I am free from rancour. I write for both sides of the Tweed. Though my warning letter goes directly to Scotland, I mean that it should reverberate on England. But it would hurt me very much, if, by any misapprehension, it could possibly be thought that any extensive severity in this pamphlet (for pauca macula there will ever be in all human institutions) is pointed against the honourable judges who at present compose the Court of Session, under the authority of which I have practised the law, lo! these nineteen years.

"Most potent, grave, and reverend signors,

"My very noble and approved good masters."

And therefore (though I can scarcely for a moment suppose it necessary) I do now, in most explicit terms, disavow an intention so injurious. I have argued hypothetically; and we all know that an hypothesis, referable to a distant and imagined period, which I trust shall never arrive, may be formed as strongly, and even extravagantly, as imagination can figure.

But the permanency of the constitution of the court, as fixed by article 19 of the Treaty of Union, is not imaginary. For, in corrobaration of the passage which I have already transcribed, I beg leave to add, that, after specifying the qualifications then requisite for Lords of Session, that same article of the Treaty says, ‘yet so as the qualifications made, or to be made, for capacitating persons to be named Ordinary Lords of Session, may be altered by the Parliament of Great-Britain. ’ Does not this make it perfectly clear that the constitution of the court may not be altered? Exceptio firmat regulam, in casibus non exceptis.

In a former part of this letter I suggested, as a regulation of improvement upon the administration of justice in our unalterable Court of Session, that the ten senior judges, or only the five senior judges, should sit in the inner house as the Court of Review. But it now occurs to me, that it is not always certain that the oldest judges will be the wisest; and therefore I would rather have them to sit seven and seven alternately, with the President (four with him, or a presiding judge in his room, to make a quorum) to review the separate decisions of the Ordinary Lords. Let the suitors have time to make their election of either of those Courts of Seven. Let the President deliver his opinion, but have no vote, unless where there happens to be an equality of voices. And as at present no decree is final, till after two consecutive judgements of the inner house, let there, for the second judgement, be a privilege to obtain a new trial before the whole fifteen, as at present, upon cause shewn; and let the whole fifteen sit one week in each month for rejecting or receiving such applications, and deciding upon them. My suggestions are offered with great diffidence: but they are all legal: they do not infringe the sacred constitution of the College of Justice.

I have one other circumstance to communicate; but it is of the highest value. I communicate it with a mixture of awe and fondness.—That Great Personage, who is allowed by all to have the best memory of any man born a Briton, and is known, by those who know him best, to have a very sound understanding, and a very humane heart, may probably recollect, that, in a conversation with one of the most zealous Royalists of the age, he was graciously pleased to give General Paoli the just praise of ‘putting law into a people who were lawless.’

What barbarous oppression, what political guilt would it be, in part to extinguish law amongst a brave people, who have long enjoyed it, and who agreed to the abolition of their own government upon the faith of unalterable articles of Union, in consequence of which they are now at a great distance from the seat of government, to which it is not easy for their voice to extend.

This letter, hastily written upon the spur of the occasion, is already too long. Yet allow me, my friends and countrymen, while I with honest zeal maintain your cause—allow me to indulge a little more my own egotism and vanity. They are the indigenous plants of my mind: they distinguish it. I may prune their luxuriancy; but I must not entirely clear it of them; For then I should be no longer "as I am;" and perhaps there might be something not so good. Virtus laudata crescit.—Sume superbiam quesitam meritis. I last year claimed the credit of being no time-server; I think I am giving pretty good proof that I am not so this year neither. Though ambitious, I am uncorrupted; and I envy not high situations which are attained by the want of publick virtue, in men born without it; or by the prostitution of publick virtue, in men born with it. Though power and wealth, and magnificence, may at first dazzle, and are, I think, most desireable; no wise man will, upon sober reflection, envy a situation which he feels he could not enjoy. My Friend (my Maecenas Atavis edite regibus) Lord Mountstuart, flattered me once very highly, without intending it.—‘I would do any thing for you (said he) but bring you into parliament; for I could not be sure but you might oppose me in something the very next day.’—His lordship judged well. Though I should consider, with much attention, the opinion of such a friend—before taking my resolution; —most certainly I should oppose him, in any measure which I was satisfied ought to be opposed. I cannot exist with pleasure, if I have not an honest independence of mind and of conduct; for though no man loves good eating and drinking, simply considered, better than I do—I prefer the broiled blade-bone of mutton and humble port of "down-right Shippen," to all the luxury of all the statesmen who play the political game all through.

It is my system to regard, in a publick capacity—measures, and not men; in a private capacity—men, and not measures. I can discuss topicks of literature, or any other topicks, with mitred St. Asaph, with Wyndham of Norfolk, with Capel Loft, with Dr. Kippis, with Dr. Price, with the Reverend Mr. John Palmer; yet there are points of government in some of them, and points of faith in others, as to which, had I any thing to do in the administration of this country, I should ‘withstand them to the face.’ I can drink, I can laugh, I can converse in, perfect good humour, with Whigs, with Republicans, with Dissenters, with Independents, with Quakers, with Moravians, with Jews. They can do me no harm. My mind is made up. My principles are fixed. But I would vote with Tories, and pray with a Dean and Chapter.

While I arraign what strikes me as very wrong in Mr. Henry Dundas, and the Lord Advocate, in their publick conduct, I am ready to meet them on friendly, but equal terms, in private. To the Lord Advocate I am most willing to allow all his merit. He has risen to the head of our bar. No man, with us, ever pushed the business of a lawyer to that extent that he has done. He has made it a Peruvian profession: yet he is free from the sordidness which sometimes attends those who get a great deal of money by laborious employment; upon every occasion that I have known him tried, he was generous. And he is a very friendly man. I should be exceedingly ungrateful if I did not acknowledge it.

That Mr. Dundas and he should think of attempting such a bill as this, must make us wonder, and, for a moment, shew us how weak the ablest men are, upon some occasions. I may, without offence, account for it, by using the very expression of Mr. Dundas himself, when attacking, at the bar of the House of Lords, a decree of the Court of Session, in the case of a schoolmaster, where I was counsel on the other side. I can swear to the phrase.—‘They have been seized with some infatuation. ’

I cannot allow myself to imagine that Mr. Dundas means to make poor Scotland the scape-goat to be sacrificed on the altar of Reform; and to please the Minister with a small one, because he has been disappointed of a great, he shall have a reform of the Court of Session, since he cannot have a Reform of Parliament (to which, by the bye, I did not know till t'other day that Mr. Dundas himself, notwithstanding appearances, has always been a friend). —No, no. This cannot be! WILLIAM PITT would despise such pitiful game. Aut Caesar, aut nihil, is HIS motto.

Poor is the triumph o'er the timorous hare."

We must go to the Aeneid for HIS prototype:

At puer Ascanius mediis in vallibus acri

Gaudet equo; jamque hos cursu, jam superat illos.

Spumantemque dari pecora inter inertia votis

Optat aprum, aut fulvum descendere monte leonem.

The suspicion of such a sacrifice could be hatched only in Scotland, where, before the heretable jurisdictions were abolished, a man was tried for his life in the court of one of the chieftains. The jury were going to bring him in not guilty: but somebody whispered them, that ‘the young Laird had never seen an execution;’ upon which their verdict was—Death; and the man was hanged.—Though our young Minister has not yet seen a reform, I hope the Court of Session shall be spared.

Then trust me, Percy, pity it were,

And great offence to kill

Any of these our harmless men,

For they have done no ill.

I exhort you, my friends and countrymen, in the words of my departed Goldsmith, who gave me many nootes atticae, and gave me a jewel of the finest water—the acquaintance of Sir Joshua Reynolds;—I again exhort you to ‘fly from petty tyrants to the Throne!’ Apply to the KING, the fountain of law, justice, and jurisdiction! your application will not be in vain.—My ingenious friend, Mr. Tyers, in his admirable Political Conferences, makes Lord Strafford (defending to Pym his attachment to Charles I.) express the very thoughts in my breast.—‘In my highest flights, whilst a commoner, my heart was never averse to monarchy. I was then neither a Puritan nor an Arminian. The more opportunities I possess of knowing the King, the more strongly am I attached to his person and authority. A King of England is not to be reduced to the insignificance of a Doge of Venice. Since the murder of Buckingham, who ruled, I confess, with a very high hand, the King has no favourite. He has taken upon him the task of being more his own Minister; and therefore you have not so much reason to apprehend any violation of popular rights.’

My much respected great grandfather, that "worthy gentleman" David Boswell of Auchinleck [*], a true heart of oak, with a vigorous mind and a robust body, secured our male succession. His uncle, though he had four daughters, the eldest of whom was married to Lord Cathcart (who would have been glad to have had our old rock) was feudal enough to give him the estate. That Laird used to say, ‘He never saw a man in his life that he did not think himself his master.’ I, pejor avis, cannot say so much. But this I will say, that ‘I call no man master,’ without reserve. When I have fixed my opinion upon an important question, I maintain it, as a point of conscience, as a point of honour; and the SOVEREIGN himself would find me tenacem propositi, as I humbly, but firmly was, upon the subject of the American war. I am a Tory; but not a Slave.—I am possessed of an essay, dictated to me by Dr. Johnson, on the distinction between a Whig and a Tory, in which it is shewn, by the wonderous powers of that illustrious mind, that there is but a shade of difference between a moderate Whig and a spirited Tory —between reasonable men of each party. Much would I yield, rather than shake the reverence due to Majesty by opposition: But there may come an enterprise of great moment, as to which it would be deeply culpable to conceal my sentiments—as to which I may think myself obliged to be a faithful, an intrepid, an inflexible monitor.

Let me conclude with eclat—with one of the finest passages of John Home's noble and elegant Tragedy of Douglas:

To the liege Lord of my dear native land

I owe a subject's homage: but even Him,

And his high arbitration I'd reject:

Within my bosom reigns another lord,

Honour, sole judge and umpire of itself!

I have the honour to remain, My friends and countrymen,
Your very faithful humble servant, JAMES BOSWELL.
London, May 1785.

Notes

*
When the report of this curious agreement burst upon the county, like a bomb, and stunned men of all parties, I made the following Bellman's rhimes, to usher in my friend Colonel Hugh Montgomerie as our representative:

Adam, too long you've kept your seat,

With little for your pains;

Trust me, you'll never make ends meet,

Computing loss and gains.

Surrender then to gallant Hugh;

It truly will be best!

Bring your mock votes along with you,

And laugh at all the rest.

Thus Ayrshire yet may prosperous be,

With such a brave Commander:

And if you're pleased our joy to see,

That will, indeed, be candour.

THE REAL INTEREST.
↵

*
May also these men of many wiles. Ambages.
↵

†
With.
↵

‡
All.
↵

*
I have always stood up for the Irish, in whose fine country I have been hospitably and jovially entertained, and with whom I feel myself to be much congenial. In my Tour to Corsiea; after relating, from General Paoli, a remarkable instance of bravery in Carew, an Irish Officer, at the siege of Tortona, I thus do generous justice to the Irish, in opposition to the English and Scots—
It is with pleasure that I record an anecdote so much to the honour of a gentleman of that nation, on which illiberal reflections are too often thrown, by those of whom it little deserves them. Whatever may be the rough jokes of wealthy Insolence, or the envious sarcasms of needy Jealousy, the Irish have ever been, and will continue to be, highly regarded upon the continent.
—My book was first published in 1768. The Irish were then still under a cloud. What a glorious day has burst upon them now! Quod felix faustumque sit!

↵

*
JOHNSON, in his Dictionary, has
TO SI'CKLY, v. a. (from the adjective) To make diseased; to taint with the hue of disease. Not in use.
But it shall be in use. It is a word of power. We cannot do without it.

↵

*
This letter was printed thus far (14 May, 1785) when I had the honour to dine in company with Mr. Justice Willes (to whom I am indebted for many civilities) at the court holden at the Old Bailey, London. And he told us, from his father, my Lord Chief Justice Willes, that when his father was no more than a King's Counsel, he visited John Duke of Argyll, at his seat at Adderbury. He found him sitting in his great chair, and a number of the nobility and gentry of Scotland standing round him (Vulgi stante corona—the great vulgar are certainly worse than the small). The Duke said,
My dear Willes! won't you have a chair?
And Mr. Willes was accordingly seated. But not one of those nobility and gentry presumed to sit in his GRACE'S presence. He was the Minister for Scotland.—O! servum pecus!

↵

*
Thomas Boswell was the first Laird of Auchinleck (pronounced Affleck) Ayrshire, after the estate had fallen to the Crown by the forfeiture of the very ancient family of that ilk (i. e. of the same name) there being no record nor tradition of any other family having it. I am told the Afflecks of England are the heirs of the forfeited family. I am proud of the connection; but should be unwilling to resign to them the estate, of which they have now no need. Thomas Boswell was a descendant of the family of Balmuto, in Fife, whose estate was purchased in this century by a younger son of my family. The wife of Thomas Boswell was a daughter of Campbell of Londoun, and a grand-daughter of the forfeited Affleck. He was honoured, in 1504, with a charter from James IV. of Scotland,
Dilecto familiari nostro—pro bono et fideli servitio nobis prestito.
He was killed with his King at the fatal field of Flodden, in 1513, fighting against the English, though he was himself of old Yorkshire extraction, being descended of the respectable family of Bosville or Boswell (for both they and we have spelt it both ways at different times) of Gunthwait, in the West Riding. After a separation for ages, I united our branch in cordial friendship with the Stock, our Chief the late Godfrey Bosville, Esq. as honest a man, as perfect an example of ‘the noblest work of God,’ as ever breathed. That friendship is continued with his son William Bosville, Esq. who, with his father's honest heart, has the curiosity of Ulysses, which he has gratified very extensively. He is to let me have a freehold in Yorkshire, a small bit of the old manour, which will connect us from generation to generation.—If it should be asked, What has this note to do here? I answer—to illustrate the authour of the text. And to "pour out all myself as old Montaigne," I wish all this to be known; and you who censure it, have read it, and must therefore know it. I am at home in Yorkshire; and I last year assisted at that glorious meeting, where loyalty and liberty united in addressing his Majesty.

↵

POSTSCRIPT.

SINCE this Letter was finished, I have read "The Rights of Juries vindicated, in the case of the Dean of St. Asaph, in the King's Bench," where Mr. Erskine added so much to the lustre of his professional character; and, inconsiderable as my approbation may be, I cannot refrain from saying, that Mr. Welch's speech upon that occasion appears to me, for legal knowledge, acute reasoning, and true constitutional spirit, to be a masterly performance, and to establish, beyond question, that the Juries of England are judges of law as well as of fact, in many civil, and in all criminal trials. Let me be also permitted to add one to the number of his Majesty's subjects who heartily honour Mr. Justice Willes, for his clear, free, yet temperate doctrine, delivered as a judge not unworthy to have been one at the trial of the Seven Bishops.—That my principles of resistance may not be misapprehended, any more than my principles of submission, I protest that I should be the last man in the world to encourage juries to contradict, rashly, wantonly, or perversely, the opinion of the judges. On the contrary, I would have them listen respectfully to the advice they receive from the Bench, by which they may often be well directed in forming their own opinion; which, "and not another's," is the opinion they are to return upon their oaths. But where, after due attention to all that the judge has said, they are decidedly of a different opinion from him, they have not only a power and a right, but they are bound in conscience, to bring in a verdict accordingly. Thus it was in the late case of Spence, at Edinburgh, which I have mentioned. The jury, with every bias for the security of their own property and peace, with every disposition, as good citizens, to check a desperate rage of mobbing, were nevertheless satisfied that that young soldier, my client, then the prisoner at the bar, (upon the general issue, ‘compounded of law and of fact,’ to use the ever-memorable words of Baron Eyre, in Colonel Gordon's trial) was not guilty of the felonious fire-raising, or arson, with which he was charged; and therefore they acquitted him, at which my heart rebounded. It is but justice to add, that we have at Edinburgh a most respectable gentleman, Sir William Forbes of Pitsligo, who, when sitting as a juryman, and hearing one of the judges mutter audibly, that ‘the law must be left to the court!’ rose in his place, and, with a proper courage, asserted the full right of himself and his bretheren; which had a very good effect.

In the Press, and speedily will be published, in one Volume Octavo, Printed for CHARLES DILLY, LONDON; THE JOURNAL of a TOUR to the HEBRIDES with SAMUEL JOHNSON, L. L. D.

BY JAMES BOSWELL, ESQ.

O! while along the Stream of Time, thy Name

Expended flies, and gathers all its Fame;

Say, shall my little Bark attendant fail,

Pursue the Triumph, and partake the Gole!

POPE.

This Journal, which was read and liked by Dr. JOHNSON, will faithfully and minutely exhibit what he said was the pleasantest part of his life: and, while it gives the remarks which Mr. Boswell himself was able to make, during a very curious journey, it will convey a specimen of that conversation, in which Wisdom and Wit were equally conspicuous.

Information about this book

Title statement

A letter to the people of Scotland, on the alarming attempt to infringe the Articles of the Union, and introduce a most pernicious innovation, by diminishing the number of the lords of session. By James Boswell, Esq

Boswell, James, 1740-1795.

Publication

Distributor

University of Oxford Text Archive
Oxford University Computing Services
13 Banbury Road
Oxford
OX2 6NN
ota@oucs.ox.ac.uk

ID [ota]

http://ota.ox.ac.uk/id/3556

ID [isbn10]

1106005554

ID [isbn13]

9781106005557

ID [TCP]

K019966.000

ID [BIBNO]

CW3305465239

ID [ECSS]

0586200600

Availability

Distributed by the University of Oxford under a Creative Commons Attribution-ShareAlike 3.0 Unported License

Source

— A letter to the people of Scotland, on the alarming attempt to infringe the Articles of the Union, and introduce a most pernicious innovation, by diminishing the number of the lords of session. By James Boswell, Esq, Boswell, James, 1740-1795.. [4],107,[1]p. ; 8⁰. London :: printed for Charles Dilly,. 1785.. [With a half-title.] [Reproduction of original from the British Library.] [English Short Title Catalog, ESTCT248.] [Electronic data. Farmington Hills, Mich. : Thomson Gale, 2003. Page image (PNG). Digitized image of the microfilm version produced in Woodbridge, CT by Research Publications, 1982-2002 (later known as Primary Source Microfilm, an imprint of the Gale Group).]

Creation

Created by converting TCP files to TEI P5 using tcp2p5.xsl, TEI @ Oxford.

Editorial practices

This electronic text file was keyed from page images and partially proofread for accuracy. Character capture and encoding have been done following the guidelines of the ECCO Text Creation Partnership, which correspond roughly to the recommendations found in Level 4 of the TEI in Libraries Guidelines. Digital page images are linked to the text file.