Almost every member of the College of Justice, however great as lawyers and learned as scholars, was at and a little before this period, noted for some peculiarity of character, if not for eccentricity. They had finished their education about the time George the Third began to reign, and that was a rough and strange time all over Scotland. Their confined studies had not thrown them into the converse of the general world, to enlarge their views and modify their opinions; and, consequently, whatever was original in them grew with their growth and strengthened with their years. The annexed humourous picture of their oddities and modes of expression can hardly be called caricature. It was ascribed to an estimable and polished advocate, who has succeeded to a seat on the same bench which they occupied, and on which his associates have been Jeffrey, Cockburn, Robertson, and other distinguished men. The jeu d’ esprit purports to be “Notes taken at advising the action of Damages and Defamation, Alexander C——m (Cunningham), Jeweller, in Edinburgh, against Mr. James R——ll (Russell), surgeon there. By G. C. (Cranstoun) Esq.” and the judgment, pronounced seriatim, is so intrinsically droll that no lapse of years can impair its humour, especially if considered generally applicable to the legal verbiage and straw-splitting which mars the course of justice, and a lively and accurate sketch of a state of things that can never be seen again. The series begins with Lord President Campbell, who would reverse Lord Balmuto’s (the Lord Ordinary’s) decision, and declares:—*
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* The second speaker is Lord Meadowbank, the third Lord Hermand, the fourth Cuming (I think), the fifth Balmuto, the sixth Woodhouselee, the seventh J. C. R. (Lord Methuen), the eighth Polkemmet. |
| 228 | APPENDIX. |
“Your Lordships have Petition of Alex. Cunningham against Lord B——s Interlocutor. It is a case of Defamation and Damages for calling the Petitioner’s Diamond Beetle an Egyptian Louse.
“You have the Lord Ordinary’s very distinct Interlocutor on pages 29 and 30 of the petition: ‘Having considered the condescendence of the Pursuer, answers for the Defendant, and so on, finds in respect it is not alleged that the diamonds on the back of the Diamond Beetle are real diamonds, or any thing but shining spots, such as are found on other Diamond Beetles, which likewise occur, though in a smaller number of other Beetles, somewhat different from the Beetle libelled, similar to which there may be Beetles in Egypt, with shining spots on their backs, which may be termed Lice there, and may be different not only from the common Louse mentioned by Moses as one of the plagues of Egypt, which is admitted to be a filthy, troublesome Louse, even worse than the said Louse which is clearly different from the Louse libelled; but the other Louse is the same with or similar to the said Beetle, which is also the same with the other Beetle, and although different from the said Beetle libelled, yet as the same Beetle is similar to the other Beetle, and the said Louse to said Beetle, and the said Beetle to the other Louse libelled, and the said Louse to the other Beetle, which is the same with or similar to the Beetle which somewhat resembles the Beetle libelled, assoilzes the Defender, and finds expences due.’
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Say away, my Lords.
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Lord M—b—k. “This is a very intricate and puzzling question, my Lord. I have formed no decided opinion, but at present I am rather inclined to think the Interlocutor is right, though not upon the ratio assigned in it. It appears to me there are two points for consideration: 1st. Whether the words libelled amount to a convicium against the Beetle. 2d. Admitting the convicium, whether the Pursuer is entitled to found upon it in this action.
“Now, my Lord, if there be a convicium at all, it consists in
the comparatio, or comparison of the Scarabæus, or Beetle, with the Egyptian
Pediculus, or Louse. The first doubt regards this point, but it is not at all founded
on what the Defender alleges,
| APPENDIX. | 229 |
“With regard to the 2d point, I am satisfied that the Scarabæus, or Beetle himself, has no persona standi in judicio, and therefore the Pursuer cannot insist in the name of the Scarabæus, or for his behoof. If the action lies at all, it must be at the instance of the Pursuer himself, as the Verus Dominus of the Scarabæus, for being calumniated through the convicium directed principally against the animal standing in that relation to him. Now abstracting from the qualification of an actual damnum, which is not alleged, I have great doubts whether a mere convicium is necessarily transmitted from one object to another through the relation of a damnum subsisting between them; and if not necessarily transmissible, we must see the principle of its actual transmission here, and that has not yet been pointed out.
Lord H—m—d. “We
heard a little ago, my Lord, that this is a difficult case. I have not been fortunate
enough, for my own part, to find out where the difficulty lies. Will any man
| 230 | APPENDIX. |
“But, my Lord, I know the other reptile well. I have seen them, my Lord—I have felt them ever since I was a child in my mother’s arms; and my mind tells me that nothing but the deepest and blackest malice rankling in the human heart could have suggested this comparison, or led any man to form a thought so injurious and insulting. But, my Lord, there is more here than all that—a great deal more. One would think that the Defender could have gratified his spite to the full by comparing this Beetle to a common Louse—an animal sufficiently vile and abominable for the purpose of defamation.—Shut that outer door there.—He adds, my Lord, the epithet ‘Egyptian.’ I well know what he means by that epithet—he means, my Lord, a Louse which has fattened in the head of a gipsy or tinker, undisturbed by the comb, and unmolested in the enjoyment of its native filth. He means a Louse ten times larger and ten times more abominable than those with which your Lordship or I am familiar. The Petitioner asks redress for this injury so atrocious and so aggravated, and as far as my voice goes, he shall not ask it in vain.
Lord C——g. “I am of the opinion last delivered. It appears to me slanderous and calumnious to compare a Diamond Beetle to the filthy and mischievous animal libelled. By an Egyptian Louse I understand one which has been found in the head of a native Egyptian, a race of men who, after degenerating for many centuries, have sunk at last into the abyss of depravity in consequence of having been subjugated for a time by the French. I do not find that Turgot, or Condorcet, or the rest of the economists, ever reckoned combing the head a species of productive labour. I conclude, therefore, that wherever French principles have been propagated, lice grow to an immoderate size, especially in a warm climate like that of Egypt. I shall only add, that we ought to be sensible of the blessings we enjoy under a free and happy Constitution, where Lice and men live under the restraints of equal laws—the only equality that can exist in a well-regulated state.
| APPENDIX. | 231 |
Lord B—l—to. “Awm for refusing the petition. There more Lice nor Beetles in Fife. They call Beetles Clokes there. I thought when I read the petition, that the Beetle, or Bettle, had been the thing that the women has when they are washing towels or napery, and things for dadding them with. And I see this Petitioner is a jeweller till his trade, and I thought that he had made one of thir Beetles, and set it all round with diamonds, and I thought it an extravagant and foolish idea; and I see no resemblance it could have to a Louse. But I find I was mistaken, my Lord, and I find it is only a Beetle Cloke the Petitioner has; but my opinion’s the same it was before. I say, my Lord, Awm for refusing the petition I say.
L—d W—se—lee. “There is a case abridged in the third Volume of the Dictionary of Decisions, (Chalmers versus Douglas,) in which it was found that Veritas convicii excusat, which may be rendered not literally, but in a free and spirited manner, according to the most approved principles of translation, ‘The truth of a calumny affords a relevant defence.’ If, therefore, it be the law of Scotland, which I am clearly of opinion it is, that the truth of a calumny affords a relevant defence; and if it be likewise true that the Diamond Beetle is really an Egyptian Louse, I am really inclined to conclude, though certainly the case is attended with difficulty, that the Defender ought to be assoilzied.—Refuse.
Lord J. C. R—s. “I
am very well acquainted with the Defender in this action, and have a great respect for
him, and esteem him likewise. I know him to be a skilful and expert surgeon, and also a
good man, and I would do a great deal to serve him, or to be of use to him, if I had it
in my power to do so; but I think on this occasion that he has spoken rashly, and, I
fear, foolishly and improperly. I hope he had no bad intention—I am sure he had not.
But the Petitioner, for whom I have likewise a great respect, has a Clock, or a
Beetle—I think it is called a Diamond Beetle—which he is very fond of, and has a fancy
for; and the Defender has compared it to a Louse, or a Bug, or a Flea, or something of
that kind, with a view to make it despicable or ridiculous, and the Petitioner so
likewise, as the proprietor or owner of it. It is said that this beast is a Louse in
fact, and that the Veritas convicii excusat.
| 232 | APPENDIX. |
“I am, therefore, for refusing such a proof in this case; and I think the Petitioner and his Beetle have been slandered, and the petition ought to be seen.
Lord P—k—t. “It
should be observed, my Lords, that what is called a Beetle is a reptile well known in
this country. I have seen mony a ane o’ them on Drumsherlin Muir. It’s a
little black beastie about the size o’ my thoom-nail. The countrypeople ca’
them Cloks, and I believe they ca’ them also Maggy wi’ the mony feet. But
this is no the least like any Louse I ever saw; so that in my opinion, though the
Defender may
| APPENDIX. | 233 |
“Lord M—n. If I understand this—a—a—a—Interlocutor, it is not said that the—a—a—Egyptian Lice are Beetles, but that they may be, or—a—a—a—resemble Beetles. I am, therefore, for sending this process to the Ordinary to ascertain that fact, as I think it depends upon that whether there be—a—a—a—convicium or not. I think also that the Petitioner should be ordained to—a—a—a—produce his Beetle, and the a—a—a—Defender an Egyptian Louse; and if he has not one, he should take a diligence—a—a—a—to recover Lice of various kinds, and these may be—a—a—a—remitted to—a—a—a—Dr. Monro, or to—a—a—a—Mr. Playfair, or to other naturalists, to report upon the subject.”—Agreed to.
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