Soon after this period, we find the subject of our memoir connected with one of those constitutional acts of resistance, for which the bar of Scotland has only, in a very few instances, been celebrated. It is well known to those acquainted with Scottish history, that a private litigation betwixt the earls of Dunfermline and Callender interested the feelings or cupidity of Lauderdale, who was determined to influence the decision in favour of the former, by swaying the judges through his personal appearance on the bench, in virtue of his honorary title of "an extraordinary lord of session." The affair was managed by having the cause prematurely called in court, in defiance of statute; and, a decision being come to in favour of the pursuer, Callender lodged an appeal to parliament, a novel procedure, which it was the interest of the king and of the judges to stifle at its first appearance. There are few who will not acknowledge, that a final appeal of litigated cases to the legislative tribunal of the country, is, if not a preventive, at least a check to the consequences of influence or prejudice in
inferior judicatories. The absence of such a principle, and the decay of jury trial in Scotland, had both originated from the same cause. Parliament was anciently the great jury of the nation, and, with the king as its president, the court of last resort in all litigations : but becoming, from the nature of the inferior courts, overburdened with judicial business, which a large body of men could riot easily accomplish, the full powers of parliament, in this respect, were bestowed on a judicial committee called the Lords Auditors, from which, through a gradation of changes, was formed the court of session, which thus, by its origin, united the duties of the jury, the law court, and the legislative body of last resort. In these circumstances, it was not difficult for government to discover, that a measure so unpleasing to itself, was a daring innovation of the "constitution." The counsel for the appellants, Lockhart and Cunningham, were desired to make oath regarding their share in this act of insubordination, and not only refusing, but maintaining the justice of appeals, were summarily prohibited the exercise of their profession. The members of the bar united to resent the insult and protect their rights, and fifty advocates, (probably very nearly the whole number then at the bar,) of whom Lauder was one,[1] folloued their distinguished brethren to retirement, and at the instance of Lauderdale, were banished twelve miles from Edinburgh. After a year's exile, they were allowed to return, having managed to effect a compromise with the court. In another appeal, which was attempted not long after, the appellant was persuaded to trust to the effect of recalling his appeal; but the judges, on whom the mixture of intimidation and flattery appears to have produced little effect, adhered, notwithstanding an implied promise to the contrary, to their previous interlocutor. "And so," remarks Lauder in reference to the case, "he was once, even through unawares, escaped them. When their honour was once engaged at the stake, they blushed to confess what is incident to humanity itself, nam humanum est errare." With regard to his own sufferings for judicial integrity, he remarks, "I have few or no observations for the space of three sessions and a half, viz. from June, 1674, till January, 1676, in regard I was at that time debarred from any employment, with many other lawyers, on the account we were unclear to serve under the strict and servile ties seemed to be imposed on us by the king's letter, discharging any to quarrel the lords of session their sen-
- ↑ Mackenzie's Memoirs, 293, where Lauder, among others, subscribes an address by the debarred advocates to the privy council. For a farther account of the affair," see the memoirs of Sir G. Lockhart, and Sir G. Mackenzie.
