The Court of Session is the highest court of law in Scotland, and advocates raised to the Bench are known by honorary titles, often taken from their family estates. The General Assembly, to this day the highest court of the Church of Scotland, still meets once a year in Edinburgh, where its debates provided splendid opportunities for young advocates serving as Elders. As the lawyers outnumbered both ministers and professors, lawyers dominated intellectual life. The spirited character of Edinburgh in Hutton’s times cannot be better introduced than by looking at highlights of the careers of some of these men.
Alexander Wedderburn (1733-1805) entered Edinburgh University aged thirteen. This was not an unusual age for entry; when they went to University, Lord Kelvin (1824-1907) was only ten, Colin Maclaurin (1698-1746) and David Hume were eleven, William Robertson was twelve, Professor Thomas Charles Hope (1766-1844) was thirteen, and Hutton and Adam Smith were somewhat late starters at fourteen. Young Wedderburn must have been remarkable, however, for while still a teenager he was “respected and cherished” by Robertson, Adam Smith, and David Hume, with all of whom he maintained life-long friendships.
Wedderburn came from a prominent legal family; in their own times, both his father and grandfather were judges in the Court of Session (Chambers, Biographical Dictionary of Eminent Scotsmen, 1835, Vol.4). Preparing for a career in law, he took lessons in English pronunciation and went to London, armed with a letter of introduction from Hume. On his return to Edinburgh, Wedderburn was admitted to the Scottish bar at the age of 21 (John Ramsay, 1888, p.438-441). In 1756 he wrote the preface to the (original) Edinburgh Review. Brilliant and ambitious, Wedderburn sharpened his skill as a debater in the General Assembly, even defending Hume from threatened ecclesiastical censure (A.H. Millar in DNB; John Campbell, 1845-47, Vol.6, p.1-366).
In 1757, a senior opposing counsel, who had lost a case to Wedderburn, took exception to the young man’s manner, calling him a “presumptuous boy”. Wedderburn made a sarcastic reply for which he was instructed to apologise. Instead, taking off his gown and laying it on the bar, he addressed the Bench with these words: “My Lords, I neither retract or apologise, but I will save you the trouble of deprivation; there is my gown, and I will never wear it more; virtute me involvo” [I wrap myself in my integrity] (John Campbell, 1845-47, Vol.6, p.1-366; Mossner, 1954 p.279-280). He set out that night for London, and was called to the English bar soon after his arrival (A.H. Millar in DNB). His successful Parliamentary career culminated in his becoming Lord Chancellor in 1793 (the first Scotsman to do so) with the titles Lord Loughborough and Earl of Rosslyn. One of his duties as Lord Chancellor was to preside over the House of Lords.
“The two most remarkable figures at the Scots bar in their own or any other time were the Hon. Henry Erskine and John Clerk, afterwards Lord Eldin” (Watt, 1912, p.17). Henry Erskine (1746-1817), 2nd son of the 10th Earl of Buchan, was a student of Adam Ferguson’s (Fergusson, 1882). Like Wedderburn and many other distinguished lawyers, he learned his debating skill at the General Assembly. During his highly successful career at the bar, Erskine succeeded Henry Dundas, Viscount Melville, (1742-1811) both as Lord Advocate and Dean of the Faculty of Advocates (John Campbell, 1845-1847, Vol.6, p.367-709). Erskine, the “silver-tongued”, was considered to be by far the most eloquent and witty speaker at the Scottish bar. When he opened a speech with the words “I shall be brief, my Lords”, the Bench’s response was “Hoots, man, Harry, dinna be brief, dinna brief!” (Watt, 1912, p.19). Because of his courageous and enlightened stand against the draconian legislation on sedition and treason in 1796, he lost his position as Dean of Faculty to Robert Dundas (1758-1819), Melville’s nephew and son-in-law (Tytler, 1790). The vote was determined by political pressure; voters were afraid of the consequences for their careers if they voted otherwise. Some, like Francis Jeffrey (1773-1850) later confessed shame at having failed to stand on principle, and Erskine’s thirty-eight supporters became referred to as “the virtuous number of thirty-eight” (Cockburn, 1852, Vol.1, p.94-95; Carlyle, 1932, p.308-342). Robert Burns wrote a satirical ballad contrasting Henry Erskine – “This Hal for genius, wit, and lore/Among the first was number’d – with Robert Dundas – “Bob’s purblind mental vision” (Burns, 1986, p.562-563; Mackay, 1992, p.378-379).
In your heretic sins may you live and die,
Ye heretic Eight-and-Thirty!
But accept, ye sublime majority,
My congratulations hearty!
With your honors, as with a certain King,
In your servants this is striking,
The more incapacity they bring
The more they’re to your liking.
At a dinner where the Chairman proposed “the health of the gentlemen of the Faculty who had done themselves the honour of voting for Mr Erskine’s re-nomination to the deanship”, the comment was made “Mr President, would it not be sufficient to propose the health of the gentlemen of the Faculty?”
Henry’s younger brother, Thomas Erskine (1750-1823), wished to have an army career, but his father could not afford to buy him a commission; so, aged fourteen, he joined the Navy as a midshipman (John Campbell, 1845-1847, Vol.6, p.367-709). He was later promoted lieutenant, and while at sea was struck by lightning. On his father’s death he purchased a commission as an infantry officer, but a chance meeting with the Lord Chief Justice persuaded Erskine to make the law his career, and a further stroke of luck assured his success. Newly called to the bar in 1788 (the year Hutton’s Theory was published), his chance remark at a dinner party earned him a junior position in an important case. The 4thEarl of Sandwich (Charles Montagu, 1718-1792) – the man who in 1762, at the gaming tables, invented the sandwich – then powerful First Lord of the Admiralty, had been accused of bribery and had lodged a libel action for defamation. Erskine’s speech, opposing the Solicitor General, settled the case and brought Erskine instant fame. The following year, 1779, he successfully represented Admiral Keppel (1725-1786) at his court-martial – the London mob going wild with delight at the outcome (Keppel,1842). Among many other triumphs, Erskine in 1781 successfully defended Lord George Gordon (1751-1793) against a charge of treason (Hibbert, 1959a); and in 1792 defended Thomas Paine (1737-1809), accused of treason for publication in 1791 of The Rights of Man (Foner, 1945; Aldridge, 1959; Ayer, 1988; Keane, 1995). He defended many of those accused of sedition in the 1790s. Erskine’s success was phenomenal; he made more money than any barrister had ever done before. According to the Encyclopaedia Britannica (1929), Thomas Erskine “was probably the greatest advocate the English bar has ever seen”. On becoming Lord Chancellor he presided over the English legal system as his brother did over the Scots bar.
Edinburgh provided England with yet another Lord Chancellor. Lord Henry Brougham (1778-1868), whose grandmother was William Robertson’s sister, entered Edinburgh University at the age of 14. While still himself a student, Brougham proposed a student society for the study of Newtonian Philosophy, and published two papers on optics and one on logic in the Royal Society of London’s Philosophical Transactions (Olson, 1975; John Campbell, 1845-1847, Vol.8, p.213-596). He became an advocate in 1800, and was an active contributor to the Edinburgh Review from its beginning in 1802 (Clive, 1957; Greig, 1948; Pottinger, 1992). Brougham, in fact, reviewed Hutton’s Theory of the Earth. Brougham’s political career was, however, in London, where in 1820 he made a bold defence of George IV’s Queen Caroline during her trial before the House of Lords. Brougham played a major role in founding London University (1828), and in 1830 he became Lord Chancellor. (John Campbell, 1845-1847, Vol.8, p.213-596. For his contemporaries see Brougham, 1845-1846).
Sydney Smith (1771-1845) was the principal founder of the Edinburgh Review, proposing for it the motto: Tenui musam meditamur avena – “We cultivate literature on a little oatmeal”. The motto actually used was, however, Judex damnatur cum nocens absolvitur – “The judge is condemned when the guilty is acquitted”. It is reported that after George III had read the Edinburgh, he said: “He [Sydney Smith] is a very clever fellow, but he will never be a bishop” (George Russell, 1905, p.40). When Lord Grey (Charles Grey, 2nd Earl Grey, 1764-1845) became Prime Minister in 1831, his comment was “Now I shall be able to do something for Sydney Smith” (Pearson, 1934, p.30).
Smith, an English clergyman acting as a tutor, came north with his pupil in 1798 and stayed in Edinburgh for five years. He famously described Scotland as “This garret of the earth – that knuckle-end of England – that land of Calvin, oat-cakes and sulphur” (Russell, 1905, p.28). Smith caught the intellectual tone of Edinburgh Society in this telling vignette: “I overheard a young lady of my acquaintance, at a dance in Edinburgh, exclaim, in a sudden pause of the music, “What you say, my Lord, is very true of love in the abstract, but – ”(Pearson, 1934, p.33) And, in a letter written in 1814, Sydney Smith gave a shrewd summary of the questioning attitude that was probably necessary for the Scottish Enlightenment to flourish: “If you were sailing from Alicant to Aleppo in a storm, and if (after sailors had held up the image of a Saint and prayed to it) the storm were to abate, you would be more sorry for the encouragement of superstition than rejoiced for the preservation of your life; – and so would every other man born and bred in Edinburgh” (Sydney Smith, 1956, p.105-106).
Francis Jeffrey and Francis Horner (1778-1817) were the other two men who participated in founding the Edinburgh Review. After the first few months of publication, Jeffrey became Editor. He was admitted to the bar in 1794, and became successively Dean of Faculty, Lord Advocate, and Judge, taking the title Lord Jeffrey (Carlyle, 1932; Cockburn, 1952; Gray, 1914, 1925; Greig, 1948; Lockhart, 1819). It was he who wrote the appreciation of Professor John Playfair (1748-1819), Hutton’s biographer, for the published Works of John Playfair (1822). Professor Dugald Stewart (1753-1828), who had been Playfair’s colleague, contributed a letter approving what Jeffrey had written.
Francis Horner entered Edinburgh University aged fourteen. To rid himself of his Scots accent he left Edinburgh in 1795 for two years in Middlesex. Returning to Edinburgh, he was called to the bar in 1800. He went back to London in 1803, was called to the English bar, entered Parliament, and was considered one of the best speakers in the House. His younger brother, Leonard Horner (1785-1864), who had been a pupil at the High School with Brougham, studied Chemistry in Edinburgh, taking a great interest in mineralogy. He followed his brother to London in 1804, where he was elected to the newly formed Geological Society. He was Secretary of the Society from 1810-1814, and President from 1845-1847 and again from 1860-1862. In 1832 Charles Lyell (1797-1875) married Leonard Horner’s daughter Mary. It was Leonard Horner who gave the manuscript of the incomplete third volume of Hutton’s Theory of the Earth to the Geological Society. He had received the historic manuscript from Lord Webb Seymour (1777-1819, son of the 10th Duke of Somerset), who probably inherited it from John Playfair; for in 1814 Playfair and Webb Seymour had jointly reported on the geology of Glen Tilt to the Royal Society of Edinburgh.
Walter Scott(1771-1832) [later created baronet as the famous Sir Walter Scott] and his friend William Clerk (1770-1847) studied together for their law examinations and were called to the bar on the same day in 1792. Scott had a high opinion of his friend’s ability. Long afterwards Scott described him as “a man of the most acute intellects and powerful apprehension. – I have known him intimately since our College days; and to my thinking, never met a man of greater powers, or more complete information of all desirable subjects”. Scott’s prediction was unfortunately fulfilled: “Clerk will, I am afraid, leave the world little more than the report of his powers. He is too indolent to finish any considerable work” (Walter Scott, 1900, Vol.1, p.44-46, 123-129; Vol.4, p.351-352, etc).
A drawing by William Clerk became the picture of Hermitage Castle in Scott’s Minstrelsy of the Scottish Border (1802). In Redgauntlet (1824) Clerk appears as Darsie Latimer, Scott portraying himself as Alan Fairford. Clerk’s father, John Clerk of Eldin (1728-1812) – Hutton’s friend and field companion –told a story that in The Antiquary (1816), belongs to Jonathan Oldbuck (For the Clerks and antiquarianism, see Iain Brown, 1974, 1980, 1987). The character Dousterswivel is based on the German geologist Rudolph Erich Raspe (1737-1794) – who recognised the volcanic origin of basalt in Germany, and with whom Hutton was personally acquainted (Hutton, 1997, p.256); while Hutton himself appears in Chapter 13 (Crockett, 1932).
Another of Scott’s early and life-long friendship was with Adam Ferguson (1771-1855), the son of Professor Adam Ferguson, and it was in young Adam Ferguson’s company that Scott discovered the romantic scenery of Perthshire, memorably described in The Lady of the Lake (1810). It was also through this friendship that, in Professor Ferguson’s home, in the presence of Hutton and Black, Scott had his only meeting with Robert Burns (Lockhart, 1900, Vol.1, p.114-117; Gray, 1925, Chapter 10; Mackay, 1992, p.266-267). Hutton and Black are portrayed in a well-known picture of the scene; the original, signed in 1892 by the artist Charles Martin Hardie, hangs in Scott’s home at Abbotsford. Ferguson, sitting by the fire, has a poker in his hand – an allusion to the Poker Club, whose name, proposed by Ferguson, suggests the stirring up of discussion on the Militia question.
While in Edinburgh, Burns wrote one of his most famous poems, Ae fond kiss, and then we sever!. It was addressed to Professor Colin Maclaurin’s niece – the daughter of Christian Maclaurin (d.1767) – Agnes Craig "Nancy" McLehose (b.1758), Burns’ Clarinda (Mackay, 1992, p.368-377 et seq.; Burns, 1986, p.434).
Through Scott’s influence, Adam Ferguson was later named Keeper of the Regalia in Scotland. Ferguson and the great portrait painter Henry Raeburn (1756-1823) were both knighted on the occasion of George IV’s visit to Edinburgh in 1822, an event largely stage-managed by Scott (Iain Brown, Spring 1996).
Lawyers were prominent in Edinburgh’s intellectual and political life because, whenever possible, a family of importance made sure that one or more of its members were in the legal profession. Politics and the Law were closely associated, and patronage was essential for position and advancement. For example, lacking the approval of the 3rd Duke of Argyll (1682-1761) David Hume had no chance of a Chair in Edinburgh (1745) or Glasgow (1752) – and who now remembers the successful candidates Professors Cleghorn and Clow? (See Hume, 1967).
From the death of Argyll on into the next century, Scotland was effectively ruled by the Lord Advocate, a powerful political position; patronage of all kinds, including church, law, politics, and academia were in his hands. Henry Dundas (later Lord Melville) held the positions of Solicitor General (1766-1775), and Lord Advocate (1775-1783). On his brother’s death in 1787, he declined to follow as Lord President of the Court of Session, but as Home Secretary (1791-1794) he controlled law and order in Britain and had political control of India and the Colonies (Fry, 1992). He became Secretary for War (1794-1801), and in 1800 was appointed Lord Privy Seal of Scotland. James Boswell (1740-1795) – biographer of Dr Johnson (1709-1784) and himself a Scots advocate and the son of a judge – referred to Henry Dundas as “Harry IX” (Fry, 1992, p.142; Cockburn, 1874, p.185). Thomas Erskine presided over Melville’s trial for impeachment in 1806.
For most of his professional life Robert Dundas was Henry Erskine’s legal opponent. His ancestry [see genealogical tree 1] provides a dramatic illustration of how power was kept by Edinburgh’s closely-knit legal families. His father, grandfather, great grandfather, and great-great grandfather were all Senators (judges) of the College of Justiciary, each taking the title Lord Arniston. His father and grandfather both held the positions of Solicitor General, Lord Advocate, and Lord President of the Court of Session (Tytler, 1790). His uncle was the all-powerful Henry Dundas, Viscount Melville, whose daughter Robert married. Robert Dundas has been referred to as both Melville’s protégé and factotum.
Robert Dundas was only 26 when in 1784 he became Solicitor General. In this position he succeeded Ilay Campbell (1734-1823), who himself succeeded Henry Erskine as Lord Advocate and went on to become Lord President. When Henry Erskine was defeated in 1796, it was Robert Dundas who was voted Dean of Faculty; this was a time when any criticism of the government could result in a charge of sedition.
For thirty years the arbiter of taste and style was Henry Home, raised to the Bench as Lord Kames in 1752. Although his education had been in his father’s house, it was not very different from University education at that time; Edinburgh only abandoned the Regent system (one teacher taking his pupils through all subjects) in 1708, after which each Professor was responsible for one specialised subject. While young, Home developed what became a life-long interest in the soil and all aspects of agriculture, but at the age of about sixteen Home was sent to Edinburgh to learn law in the office of a Writer to the Signet, and was called to the bar in 1724.
Home was a founding Member of the Philosophical Society, becoming Vice-President and contributing papers to its Transactions. About 1735 he began his long friendship with his Berwickshire neighbour, David Hume. In 1747-48 Home’s interest in agriculture became serious. Like Hutton, Home used English methods of ploughing, and was one of the first in Scotland to adopt scientific farming methods (Handley, 1953, 1963).
In the years 1748-1751, Home persuaded Adam Smith to give lectures on rhetoric, literary criticism, and economics. These well-attended lectures led to Smith’s appointment to a Chair in Glasgow in 1751 (William Scott, 1937). Lord Kames (to use his title as a judge) was deeply interested in the subjects of Smith’s lectures, and is said to have played a part in the foundation of the Chair of Rhetoric in Edinburgh University in 1760 (Gray, 1914, p.25; cf. Dalzel, 1862, p.428). As we have seen, Benjamin Franklin was Kames’ guest in 1759 and 1771.
Kames published several books, including The Elements of Criticism (1762), The Gentleman Farmer (1766), and Sketches of the History of Man (1774); it has been claimed that Kames did more to further an interest in philosophy and literature than all the men of law had done for a century before. He actively supported the project for a canal linking the Forth and Clyde (Ross, 1972, p.328-329), which must surely have brought him into contact with Hutton, who was on the management committee (Jean Jones, 1982). The Forth and Clyde Canal, which was approved by Act of Parliament in 1768, was opened for sea-to-sea navigation in 1790. Kames worked, indeed, for all aspects of Scotland’s improvement. Adam Smith said: “We must every one of us acknowledge Kames for our master” (Rae, 1895, p.31). Surprisingly, however, even on the Bench, Kames could be profane, vindictive, and brutal: Sentencing his chess-playing friend Matthew Hay for murder, Kames declared: “That’s checkmate to you, Matthew!” (Gray, 1914, Chapter 1; Ross, 1972, p.308, 310-311).
When raised to the Bench in 1776, Robert Macqueen (1722-1799) took the title Lord Braxfield (Ramsay, 1888, Vol.1, p.380-393; Cockburn, 1874, p.99-103; Gray, 1914, Chapter 5; Roughead, 1919, 1922). He became Lord of Justiciary (one of five judges specially commissioned by the sovereign to try criminal cases) in 1780, and Lord Justice-Clerk (chief criminal judge) in 1788 (Hutton’s year again). Even by the high standards of Edinburgh’s legal profession, Braxfield was recognised as a great drinker – [His] success at the Bar, conspicuous as it was, was eclipsed by his success in the tavern" (Gray, 1914, p.103). Braxfield presided over some of the most famous and infamous trials in Scottish legal history, earning the title of the "Hanging Judge". Walter Scott, his neighbour in George Square, dedicated his thesis Concerning the disposal of dead bodies of criminals (1792)to Lord Braxfield. Robert Louis Stevenson (1850-1894) portrayed Braxfield in his novel Weir of Hermiston (1896), and Braxfield appears again in a more recent novel, The Justice-Clerk (1923) by W.D. Lyell. Reviewing the Raeburn exhibition in 1876, Robert Louis Stevenson wrote of Braxfield: "He has left behind him an unrivalled reputation for rough and cruel speech; and to this day his name smacks of the gallows" (Stevenson, 1913, p.146).
For a more receent reference see: Brian D. Osborne: Braxfield the hanging judge?Argyll Publishing, 1997
Kames, Hume, Smith, and many others took elocution lessons to rid their speech of Scotticisms, but Braxfield like Hutton and the John Clerks (father and son) – spoke broad Scots. Unlike Hutton (Olson, 1975; Peter Jones, 1984), however, Braxfield sneered at subjects such as art, literature, and philosophy. Although an expert in law, he had no conception of justice; he revelled in the power his position on the Bench gave him to inflict pain on those he despised. "Bring me prisoners and I’ll find them law" was one of his sayings (Cockburn, 1888, Vol.1, p.87). Another was "Hang a thief when he is young, and he’ll no’ steal when he is auld" (Watt, 1912, p.15). To a prisoner defending himself, Braxfield said: "Ye’re a vera clever chiel’, man, but ye wad be nane the waur o’ a hanging" (Lockhart,1900, Vol.3, p.373). It is said that when the father of Francis and Leonard Horner was entering the jury-box, Braxfield whispered: "Come awa, Maister Horner, come awa, and help us to hang [meaning any judicial punishment] ane o’ thae daamned scoondrels" (Cockburn, 1874, p.102; Ross, 1972, p.309).
He was a coarse, domineering, tyrannical, and brutal bully. Gerrald, defending himself on a charge of sedition in 1794, said "even our Saviour himself was a reformer", to which Braxfield retorted: "Muckle He made o’ that, He was hangit" (John Galt, 1821, p.280; Cockburn, 1974, p.102 & 1888, Vol.2, XIII; Watt, 1912, p.16). Gerrald’s crime was to have argued for Parliamentary reform (Ramsey, 1794). Braxfield accused him of trying to overturn "our present happy Constitution – the happiest, the best, and the most noble Constitution in the world" (Cockburn, 1888, p.149). Braxfield, of course, had the last word; he sentenced Gerrald to transportation for fourteen years.
Margarot, also defending himself before Braxfield in 1794, asked the following questions from his place in the dock (Cockburn, 1888, Vol.2, XI, p.28-33; Gray, 1914, Chapter 5; Joyce, 1951, Chapter 6): text-indent: length 18px
Supported by his colleagues on the Bench, Braxfield refused to respond to the charges. As Charles Fox (1749-1806) said in Parliament: "God help the people who have such judges!" (Bewley, 1981, p.192)
John Clerk [See genealogical tree 2] was the eldest son of Hutton’s friend and colleague, John Clerk of Eldin (Watt, 1912, p.21). William Clerk, Scott’s friend already mentioned, was a younger brother. Their mother, Susanna Adam, was a sister of Robert Adam (1728-1792), the renowned architect (Fleming, 1962), and first cousin of William Robertson (See genealogical tree 3]. John Clerk was called to the bar in 1785, was named Solicitor General in 1806, and raised to the Bench in 1823, taking the title Lord Eldin from his father’s property at Lasswade, near Edinburgh (Gray, 1914, Chapter 11). By coincidence, John Clerk’s nomination as Solicitor General appeared in the same Gazette as did the instalment of Henry Erskine as Lord Advocate and Scott’s as Clerk of Session. John Clerk’s portrait is one of the most striking of Sir Henry Raeburn’s portraits. Clerk had known Raeburn well ever since he was a law student (Watt, 1912, p.182). An engraving of this portrait was published in 1815, when Clerk was 51 (personal communication, Dr David Mackie).
John Clerk had a contracted leg, which made him limp. One day he overheard a lady say to her companion, "That’s John Clerk, the lame lawyer", he turned round and said, "No, madam. the lame man, not the lame lawyer" (Watt, 1912, p.21). Like Hutton, John Clerk spoke broad Scots: "the powerful direct Scots of the able, highly educated man, a speech faded now  from human memory". Addressing the House of Lords, Clerk argued that "the watter had rin that way for forty years". The Lord Chancellor, much amused, asked: "Mr Clerk, do you spell water in Scotland with two ‘t’s?", to which Clerk replied: "Na, my Lord, we dinna spell watter wi’ twa t’s, but we spell maineers wi’ twa n’s" (Dean Ramsay, Author’s copyright edition, undated, p.147; see also Rogers, 1884, Vol.3, p.168-169)
John Clerk was thirty when he accompanied Hutton to Arran in 1787, and it is clear that they got on well together. Looking for the contact between granite and the surrounding country rock they followed the Cataract [Cnocan] Burn to Glenshant Hill – arduous terrain for a lame man. Hutton shares his excitement with us in the following description: "By reason of moss and vegetation we had a very interrupted view of the immediate junction of the granite and schistus, which here appears in many places upon the summits of bare rock standing up among the heath and moss. ... Having once got hold of the clew, or catched the scent, we traced back (with more animation than could have been expected from such an innocent chase) the object of our investigation all the way to the Cataract rock. Great veins of granite may be seen traversing the schistus, and ramifying in all directions". Despite Clerk’s lameness they climbed Goat Fell, the highest mountain on the island, and "slipped down" to see a dyke a little way below the summit – "an idea which could not have entered the head of any sober person who was not a mineralist" (Hutton, 1997, p.222-226).
Although Clerk shared this important field experience with Hutton, he did not become a geologist. The reason is that, a year later (the year Hutton’s Theory was published), he found fame as an advocate in the trial of Deacon Brodie (1741-1788). Brodie, a Member of the Town Council by day and a burglar by night, led a double life that inspired Robert Louis Stevenson to write his well-known tale, Dr Jekyll and Mr Hyde (1886). As the result of an abortive attempt on the Excise Office in Chessel’s Court, Brodie was brought to trial. Adam Smith (Dugald Stewart, 1794; Rae, 1895; Hirst, 1904; Fay 1956; Ross 1995) was Commissioner of the Excise and lived at Panmure House, across the road from Chessel’s Court, and only a stone’s throw from Hutton’s house at St John’s Hill (Butcher, 1997, 1998).
Braxfield as Lord Justice-Clerk, presided over Brodie’s trial with four other judges (Creech, 1788; Aeneas Morison, 1788; Peter Mackenzie,1890, Vol.2, Chapter 14; Roughead, 1921; Gibson, 1977) The prosecution was led by Ilay Campbell (Lord Advocate) and Robert Dundas (Solicitor General). Brodie was represented by Henry Erskine (Dean of Faculty) assisted by Charles Hay (1747-1811), who, like Erskine, had been called to the bar in 1768. Hay was raised to the Bench in 1806, taking the title Lord Newton (Gray, 1914, Chapter 9).
John Clerk was Counsel for George Smith, a penniless locksmith from England who had assisted Brodie at the Excise Office. It was Clerk’s first case in the Justiciary Court, and the other Counsel had at least seventeen years more experience, but Clerk made such a name for himself that, at the height of his power, he is said to have had nearly half the business of the Court of Session.
There are several contemporary accounts of the trial. One book is by Aeneas Morrison, Clerk’s Agent, another by William Creech (1745-1815), a member of the Jury, a friend of Lord Kames, and Scotland’s leading publisher and bookseller. Creech founded the Speculative Society, and his literary levees were important social gatherings. Creech published books by Edinburgh authors such as Blair, Cullen, Gregory, Henry Mackenzie, and most notably Robert Burns, who wrote a poem in his honour: "May I be Slander’s common speech , ... when I forget thee, Willie Creech" (Burns, 1986, p.277-279). Creech was Lord Provost of Edinburgh in 1811-1813. (For a biography see Creech, 1815; for a sketch see Cuthbertson, 1939).
The trial took place on the 27th and 28th of August, 1788, and was reported in some detail in The Edinburgh Advertiser for August 26/29. That an advertisement for Creech’s book on the trial appeared in the same issue of the Advertiser says much for Creech’s business acumen! The trial began at nine a.m. on Wednesday. After drinking "nearly a bottle of claret", Clerk began his speech to the Jury at one a.m. on Thursday morning, and at three a.m. he was followed by Erskine. "About half past four in the morning, the Lord Justice-Clerk, who had never once left the Court, began to sum up the evidence on both sides" (William Creech, 1788, p.212). Braxfield finished his address to the Jury at six a.m., after which the Court adjourned until one p.m., when the Jury returned a guilty verdict; the judges pronounced death sentences (Aeneas Morison, 1788, p.238). In his address to the prisoners, Braxfield said that he (of all people!) hoped they would improve the short time they had now to live, by a sincere repentance of their crimes, and in obtaining forgiveness of Heaven for their past offences. "God", Braxfield told the prisoners, "always listened to those who seek him with sincerity" (Aeneas Morison, 1788, p.255; William Creech, 1788, p.225; William Roughead, 1921,p.209).
Ainslie, the lookout-man on the night of the crime, had been caught and imprisoned. His life would be spared if he testified against Brodie and Smith; so he turned King’s evidence. Clerk objected when the Lord Advocate introduced Ainslie as a witness for the prosecution, and the following exchange took place:
The point is echoed in one of Robert Burns best known poems, A Man’s a Man for a’ That, which has "a central place in the psalmody of radicalism" (Burns, 1986, p.535-536):
Although Burns had left Edinburgh before the trial, he had many Edinburgh friends and the account of the proceedings would surely have reached him. For a short time Burns was, in fact, a near-neighbour of Brodie’s.
On 7th December 1786 Burns wrote to his friend Gavin Hamilton: "My Lord Glencairn and the Dean of Faculty, Mr Henry Erskine, have taken me under their wing, and in all probability I shall soon be the tenth worthy, and eighth wise man of the world" (Burns, 1990, p.66). Glencairn’s brother was married to Erskine’s sister.
James Cunningham (1749-1791), 14th Earl of Glencairn, invited Burns to his home and introduced him to his friends and to his former school-fellow and tutor, William Creech, the juryman who, only four months before the trial, published the Edinburgh edition of Burns’ poems. Burns said of Glencairn: "my best Friend, my first and my dearest Patron & Benefactor; the man to whom I owe all that I am & have!" (Burns, 1990, p.506). It was through Glencairn’s influence that Burns got the job he wanted with the Excise, and when Glencairn died, aged only 42, Burns wrote a Lament ending with the beautiful lines (Burns, 1986, p.423-425):
Burns paid Glencairn a further tribute by naming his son, born in January 1794, James Glencairn Burns.
Charles Hay, who assisted Erskine in Brodie’s defence, was another friend of Burns. Hay and Burns were both members of the hard-drinking Crochallan Fencibles, to which Burns was introduced by the Club’s founder, William Smellie, and it was for the Crochallan that Burns wrote his bawdy The Merry Muses of Caledonia.
Hay, as the Crochallan’s Major and Muster-Master General, and Smellie as Executioner, were in charge of "drilling" – i.e. "hazing" – the recruits. Hay was famous for "law, punch, whist, claret and worth", and Raeburn’s portrait of this "Mighty Goth" makes it easy to believe that Hay’s "bibulous performances were really remarkable at a time when drinking records were not easily established". Supervised by Charles Hay, the Crochallan probably did Burns’ constitution no good at all.
James Boswell, diarist and biographer, gives us a picture of a day in an Edinburgh advocate’s life: "Drinking never fails to make me ill bred. ... I had been sick without being sensible of it. ... I however grew so well as to be able to get up and go to the Parliament House [law courts] at nine. I was still quite giddy with liquor, and, squeamishness having gone off, I was in good, vigorous, sparkling frame, and did what was necessary to be done in several causes, and was most entertaining amongst my brother lawyers. ... I dined with [Lord Monboddo and two other judges]. I was in prodigious spirits, and drank beer copiously to allay the thirst of last night’s drinking. We had a deal of merriment; and I drank old hock, which cooled my fever and really sobered me" (Boswell, 1960, p.242: 23 July 1774).
John Clerk, himself was no mean toper. A favourite story relates that early one morning he stopped in the street to ask a servant-girl "Where is John Clerk’s house?" "Why, you’re John Clerk!", she said in astonishment. "Yes, but it’s his house I want", he answered (Watt, 1912, p.23).
While Clerk was addressing the Jury in the Brodie trial, he was interrupted and admonished by Braxfield. Clerk thereupon sat down. (Peter Mackenzie,1890, Vol.2, p.102-104).
The record shows that Clerk’s remarks were frequently punctuated by "Consternation in Court", "Sensation in Court", or by "Great applause". Lord Cockburn (1779-1854) said of John Clerk: "He did not take his fee, plead the cause well, hear the result, and have done with it; but gave the client his temper, his perspiration, his nights, his reason, his whole body and soul, and very often the fee to boot" (Cockburn, 1852, Vol.1, p.202). Thirty years after the trial of Deacon Brodie and George Smith, Walter Scott’s son-in-law and biographer, John Gibson Lockhart (1794-1854), gave us this word-portrait of John Clerk – the man who was Hutton’s companion when Hutton first saw an unconformity and dykes of glass:
"It is impossible to imagine a physiognomy more expressive of the character of a great lawyer and barrister ... – how the habits of mind have stamped their traces on every part of the face! What sharpness, what razor-like sharpness, has indented itself about the wrinkles of his eye-lids; the eyes themselves so quick, so gray, such bafflers of scrutiny, such exquisite scrutinizers, how they change their expression – it seems almost how they change their colour – shifting from contracted, concentrated blackness, through every shade of brown, blue, green, and hazel, back into their own open, gleaming gray again! How they glisten with disdain!"
" ... He seems to be affected with the most delightful and balmy feelings, by the contemplation of some soft-headed, prosing driveller, racking his poor brain, or bellowing his lungs out – all about something which he, the smiler, sees through so thoroughly, so distinctly. Blunder follows blunder; the mist thickens about the brain of the bewildered hammerer; and every plunge of the bog-trotter – every deepening shade of his confusion – is attested by some more copious infusion of Sardonic suavity, into the horrible, ghastly, grinning smile of the happy Mr Clerk. How he chuckles over the solemn spoon [simpleton] whom he hath fairly got into his power!"
"When he rises, at the conclusion of his display, he seem to collect himself like a kite above a covey of partridges; he is in no hurry to come down, but holds his victim with his glittering eye,’ and smiles sweetly, and yet more sweetly, the bitter assurance of their coming fate; then out he stretches his arm, as the kite may his wing, and changing the smile by degrees into a frown, and drawing down his eye-brows from their altitude among the wrinkles of his forehead, and making them to hang like fringes quite over his diminishing and brightening eyes, and mingling a tincture of deeper scorn in the wave of his lips, and projecting his chin, and suffusing his whole face with the very livery of wrath, how he pounces with a scream upon his prey – and, may the Lord have mercy upon their unhappy souls!"
"It is truly a delightful thing, to be a witness of this mighty gladiator, scattering everything before him, like a king, upon his old accustomed arena; with an eye swift as lightning to discover the unguarded point of his adversary, and a hand steady as iron to direct his weapon, and a mask of impenetrable stuff, that throws back, like a rock, the prying gaze that would dare to retaliate upon his own lynx-like penetration – what a champion is here! It is no wonder that every litigant in this convenanting land, should have learned to look upon it as a mere tempting of Providence to omit retaining John Clerk."
"If ever I have seen any countenance which I should consider as the infallible index of originality and genius – such is the countenance of Mr Clerk; and everything he says and does is in perfect harmony with its language" (Lockhart, 1819, Vol.2, Letter 32, p.43-52).
In 1809, as a lad of fourteen, Thomas Carlyle (1795-1881) walked the seventy miles from the village of Ecclefechan, Dumfriesshire, to become a student at Edinburgh University. In his Reminiscences, written 57 years later, he describes how, on his arrival, he was taken to see the sights of the city: Many famous people were pointed out to him, but "The only figure I distinctly recollect, and got printed on my brain that night, was John Clerk – whose grim strong countenance with its black far-projecting brows and look of great sagacity fixed him in my memory" (Thomas Carlyle, 1932, p.310). Clerk was then about the age he was when Raeburn painted his portrait.
John Clerk and Walter Scott, who knew each other well, both died in 1832. Lockhart tells how "At the meetings of the Bannatyne he [Walter Scott, the founder of the Bannatyne Club] regularly presided from 1823 to 1831; and in the chair on their anniversary dinners, surrounded by some of his oldest and dearest friends, Thomas Thomson (the Vice-President), John Clerk (Lord Eldin), the Chief Commissioner [William] Adam [nephew of Robert Adam, George Clerk-Maxwell (1715-84), and John Clerk of Eldin], the Chief Baron Shepherd, Lord Jeffrey, Mr Constable, ... and Mr David Laing, the Secretary of the Club, he from this time forward was the unfailing source of merriment within the limits of becoming mirth’" (Lockhart, 1900, Vol.4, p.93).
Although Hutton tells us that John Clerk made geological drawings, Clerk’s interest was more in people than in rocks. Through his mother he inherited some of the artistic taste and skill of Robert Adam’s family, and on his death he left an important art collection. Hundreds of people came to the auction held in his house at 16 Picardy Place in 1833; in fact so many came that the floor collapsed, and about eighty people fell to the floor below; many were injured and one was killed. The large picture, The Adoration of the Kings (Oil on Canvas. 1.830x2.350m) by the Venetian painter Jacopo Bassano (1510-1592) – it was formerly thought to have been by Titian – was Item 113. It is perhaps the most important painting owned by the National Gallery of Scotland. We need to imagine this splendid picture in John Clerk’s home.
One more member of the legal profession deserves mention because his association with Hutton gives us a rare glimpse of Hutton’s social life after his return to Edinburgh in 1767. James Burnet (1714-1799) – sometimes spelled with two t’s (e.g. DNB and Kay 1877) – was raised to the Bench as Lord Monboddo (Knight, 1900). He was an individualist, in his judgements often being a minority of one. In Some Old Scots Judges, Forbes Gray devoted two chapters to Monboddo; they immediately follow the initial chapter, which is on Lord Kames. (Gray, 1914). The chapter on Monboddo’s Writings is devastating:
"Incoherent, discursive, archaic, lifeless, Monboddo discovered no new law, proclaimed afresh no doctrine that had become partially obscured. His legacy to the human race consisted of certain fantastical ideas which caused his contemporaries to laugh and succeeding generations to blaspheme. ... But", said Forbes Gray, "he is at least entitled to the credit of having, in an age when science was still in swaddling clothes, employed a sound scientific method". Instead of theorising, Monboddo studied "the manners and customs of savage races, interviewed travellers, and sought to obtain authentic information", a procedure which Hutton would certainly have approved of.
Even in his eighties Monboddo made annual journeys by horseback to London, where he conversed with some of the most eminent men, and frequently even with the King. In Edinburgh he gave weekly learned suppers, which Scott mentions in Guy Mannering (1815, Chapter 49, Note 7). On these occasions Monboddo’s regular guests were Joseph Black, James Hutton, John Hope (1725-1786)(Regius Professor of Medicine & Botany; President of the Edinburgh College of Physicians; and father of the distinguished Professor of Chemistry, Thomas Charles Hope), and William Smellie the printer (Watt, 1912, p.13-14).
Kay (1877, Plate 99, p.247-248) published a print showing Hutton making a spirited demonstration of some point to Monboddo. As Kay remarks, Hutton apparently had the matter "at his finger-ends". In the background a small figure with a tail, is an allusion to Monboddo’s belief that we are all born with tails, which the midwives cut off. Another print by Kay shows Monboddo in conversation with Kames and Hugo Arnot (1749-1786), author of The History of Edinburgh,  1788 (Chambers, 1949, p.12-13). Monboddo took 26 years to write his two six-volume books. Kames, on the other hand, was a more prolific author. When Kames asked if Monboddo had read his latest book, Monboddo replied: "No, my lord, you write a great deal faster than I am able to read" (Watt,1912, p.12).
For all his eccentricities and his veneration of the ancient Greeks, Monboddo was a kind and generous man. He was an early supporter and friend of Burns, and it was Monboddo’s youngest daughter, Elizabeth (1766-1790), whose beauty and grace made a deep impression on Burns in December 1786: "the heavenly Miss Burnet ... There has not been any thing nearly like her, in all the combinations of Beauty, Grace, and Goodness the great Creator has formed, since Milton’s Eve on the first day of her existence". She is the only person named in his Address to Edinburgh. Elizabeth Burnett died of tuberculosis little more than three years after Burns first saw her, and the Elegy he wrote in her memory is well known.