Page:A biographical dictionary of eminent Scotsmen, vol 4.djvu/316

58 was left to Harcarse. and Collington, a veteran cavalier. In order to do the business with certainty, and prevent his majesty's interest from being sacrificed to opposition so unusual and captious, Nairn, an infirm and superannuated judge, was dragged from his bed at dead of night, and the feeble frame of the old man yielding to the desire of sleep while the clerk read to him a summary of the proceedings, he was roused from his slumber, and by his vote the relevancy of the indictment was carried by a majority of one. The course pursued by lord Harcarse in this trial escaped the vengeance of government at the time, but his conduct was held in remembrance for a future opportunity. In the year 1688, a question came before the court of session, in which the matter at issue was, whether a tutory, named by the late marquis of Montrose, should subsist after the death of one of the tutors, who had been named, in the language of the Scottish law, as a u sine qua non." In a matter generally left to the friends of the pupil, the unusual measure of the instance of the lord advocate was adopted by government, for the purpose of having the pupil educated in the Roman catholic faith. Wauchope lord Edmonstone and Harcarse voted for the continuance of the trust in the remaining tutors, and on a letter from the king, intimating to the court that, "for reasons best known to himself," it was his royal will and pleasure that they should cease to act as judges, both were removed from the bench, " notwithstanding," says Fountainhall, with some apparent astonishment, "that Edmonston was brother to Wauchop of Nidrie, a papist." The doctrine of the law, previously vaccilating, has since this decision been considered as properly fixed, according to the votes of the majority; but an opposition to the will of government in such a matter can be attributed to no other motives but such as are purely conscientious. Other opinions on government and prerogative, maintained in a private conference with some of the leaders of the ministry, are alleged to have contributed to this measure; but these were never divulged. At the period of his downfall, a public attack was made on the character of lord Harcarse, on the ground of improper judicial interference in favour of his son-in-law, Aytoun of Inchdarnie, by an unsuccessful litigant. These animadversions are contained in a very curious pamphlet, entitled "Oppression under colour of Law; or, my Lord Harcarse his new Practicks: as a way-marke for peaceable subjects to beware of playing with a hot-spirited lord of Session, so far as is possible when Arbitrary Government is in the Dominion," by Robert Pittilloch, advocate, London, 1689. The injured party is loud in accusation ; and certainly if all the facts in his long confused legal narrative be true, he had reason to be discontented. He mentions one rather striking circumstance, that while the case was being debated at the side bar of the lord ordinary, previous to its coming before the other judges, " my lord Harcarse compeared in his purple gown, and debated the case as Inchdarnie's advocate;" a rather startling fact to those who are acquainted with the comparatively pure course of modern justice, and which serves with many others to show the fatal influence of private feeling on our earlier judges, by whom an opportunity of turning judicial influence towards family aggrandizement, seems always to have been considered a gift from providence not to be rashly despised. After the RevoJution, the path of honour and wealth was again opened to lord Harcarse, but he declined the high stations proffered to him; and the death of a favourite and accomplished daughter, joined to a disgust at the machinations of the court, prompted by his misfortunes, seems to have worked on a feeble frame, and disposed him to spend the remainder of his days in retirement. He died in the year 1700, in the 65th year of his age, leaving behind him a collection of decisions from 1681 to 1692, published in 1757, in the form of a dictionary, a useful and well arranged compilation. The pamphlet of