Saturday, April 26, 2014

Of murder and raptus

Today marks the 160th anniversary of the death of Lord Cockburn, a popular and much admired Edinburgh judge who, as Scotland’s Solicitor-General at the time, was partly responsible for the First Scottish Reform Bill. He left behind him a valuable set of diaries, not only providing a fascinating commentary on the political and religious life of Scotland in the first half of the 19th century, but documenting his work as a judge on various legal circuits across the country. Almost incidentally, though, he also writes beautifully about the places he passes through on his travels.

Henry Cockburn (image thanks to National Portrait Gallery) was born in Edinburgh in 1779 into a well-connected Tory family, and educated at Royal High School and Edinburgh University. He joined the Speculative Society, which counted Walter Scott among its members, as well as Francis Jeffrey, who would become a lifelong friend. 

Cockburn trained as a lawyer, qualifying in 1800; and, mostly in response to effects of the French Revolution, went against his family and social connections to become a Whig. In 1811, he married Elizabeth MacDowall (they would have at least 10 children), and set up a rural household at Bonaly, southwest of Edinburgh, as well as a house in Charlotte Square.

Cockburn became a successful advocate, and gained the trust of juries. Two of his greatest occasions, says Karl Miller (author of Cockburn’s entry in the ODNB - login required), were his appearances for James Stuart of Dunearn, in 1822, and, seven years later, for Helen MacDougal, the companion of body-snatching Burke, the ‘resurrectionist’ serial killer: ‘Stuart had shot dead Boswell’s son Alexander in a party-political duel, and Cockburn’s defence was reckoned a masterpiece of forensic praise and pathos; at the time of the Burke and Hare trial, Stuart, once “thought so pure and firm”, as Cockburn observed, was revealed as a speculator who had run off to America in debt.’

When Earl Grey became Prime Minister in 1830, Cockburn was appointed Solicitor-General for Scotland. As such, he was responsible, with his friend, another judge, Lord Jeffrey, for preparing the Scottish Reform Act. In 1834 he became a judge in the Court of Session and adopted the title of Lord Cockburn. Late in his life, he published a biography of Lord Jeffrey. Cockburn died on 26 April 1854, at Bonaly. Further information is available from Wikipedia or A Web of English History.

Cockburn was already into his 40s when he decided to start writing about his own life and work. However, his first autobiographical book - Memorials of His Time - was not published by A & C Black until two years after his death in 1856. In this (available at Internet Archive), the publisher included a short introduction written by Cockburn himself in 1840: ‘It occurred to me, several years ago, as a pity, that no private account should be preserved of the distinguished men or important events that had marked the progress of Scotland, or at least of Edinburgh, during my day. I had never made a single note with a view to such a record. But about 1821 I began to recollect and to inquire.’

The autobiography closes with the following paragraph: ‘I close this page by saying that Jeffrey has been made Lord Advocate, and I Solicitor-General, under the ministry of Earl Grey. We have come upon the public stage in a splendid, but perilous scene. I trust that we shall do our duty. If we do, we cannot fail to do some good to Scotland. In the abuses of our representative and municipal systems alone, our predecessors have left us fields in which patriotism may exhaust itself.’

Twenty years later, in 1874, Edmonston and Douglas published a second autobiographical work: Journal of Henry Cockburn being a continuation of his Memorials of His Time. This consisted of two volumes of Cockburn’s diaries, covering the period after he was made Solicitor-General, and both can be read at, or downloaded from, Internet Archive. The simple introduction to the journal states: ‘The first portion of Lord Cockburn’s Memorials of His Time consisted of an unbroken narrative ending at the close of the year 1830. It was published in 1856. “Since 1830,” Lord Cockburn writes, “I have gone on recording occurrences as they have arisen, though often with large intervals. This habit of making a note of things worth observing at the time coincided with the change of life implied in my becoming Solicitor-General, in separating the first part from the subsequent pages.” ’

All Cockburn’s published diaries are exceptionally well written, interesting from many points of view and rarely dull to read. His main focus is society (rather than himself or his family), its political, legal and religious life; and his diaries contain much analysis of the issues of the day, as well of the people involved in those issues. In particular, his diaries are considered an important historical source for information on the schism in the Church of Scotland, with Cockburn himself being sympathetic towards the so-called disruption and the formation of a Free Church.

Personally, though, I find his Circuit Journeys the more interesting and entertaining of reads. Not only does he give details on the intriguing criminal cases he presides over across the country, but he writes about his travels, the places he visits, the people he meets, the landscapes he admires with such literary skill one could imagine him to be a modern day travel writer. Circuit Journeys was published in 1888, by Douglas (no longer Edmonston and Douglas), and, like Cockburn’s other books, is also freely available at Internet Archive. Cockburn himself provides a useful introduction (posthumously, as it were) with his first dated entry, for 28 March 1838:

‘I have got this volume (prepared under the personal directions of Thomas Maitland, the first of gentlemen binders) in order to record anything remarkable that may occur in my Circuits. It will be my fate to perform these journeys, being a Criminal Judge, as long as I am fit for anything, and it gives scenes, which repetition generally makes dull, an interest to have one’s attention called, by the excitement of a diary, to occurrences which, however insignificant to strangers, are important to the individual engaged, and who always regrets to find that the impression of them is gone.

I wish that the Court of Justiciary had always had a Judge who left such a journal. The very uniformity of its subjects, implying a description from age to age of the same sort of occurrences and of the same parts of the country, and, of course, of their gradual changes, would have given it a value which detached records, though individually more curious, could not have possessed. If even Fountainhall, though not nearly far enough back, had imparted his observing and recording spirit to one of each series of his successors, what a curious picture would their continued memoranda have by this time given us of singular local men, of the changes of districts, of the progress of the law, of important trials, of strange manners, and of striking provincial events.’

Here are several extracts from Circuit Journeys.

17 April 1838

‘On Saturday the 14th, I was in Court till midnight.

The only curious case was that of Malcolm M’Lean, a fisherman from Lewis, who is doomed to die upon the 11th of May, for the murder of his wife. He admitted that he killed her, and intentionally, but the defence by his counsel was that he was mad at the time. There was not the slightest foundation for this, for though he was often under the influence of an odd mixture of wild religious speculation, and of terrified superstition, he had no illusion, and in all the affairs of life, including all his own feelings and concerns, was always dealt with as a sound practical man. One part of his pretended craziness was said to consist in his making machinery to attain the perpetual motion, and his believing that he had succeeded. This shows that this famous problem is not in such vogue as it once was. But the thing that seemed to me to be the oddest in the matter, was the perfect familiarity with which the common Celts of Lewis talked and thought of the thing called the perpetual motion, whatever they fancied it. Their word for it, according to the common process of borrowing terms with ideas, was, “Perpetual Motion” pronounced and treated by them as a Gaelic expression. The words “Perpetual motion,” were used in the middle of Gaelic sentences without stop or surprise, exactly as we use any Anglified French term.

This man’s declaration, which told the whole truth with anxious candour, contained a curious and fearful description of the feelings of a man about to commit a deliberate murder. He had taken it into his head that his wife was unkind, and perhaps faithless to him, and even meant to kill him, and therefore he thought it better, upon the whole, to prevent this by killing her, which accordingly, on a particular day, he was determined to do. He went to work on a piece of ground in the morning, thinking, all the time he was working, of going into the house and doing the deed, but was unwilling and infirm. However, he at last resolved, went in, sat down, she at the opposite side of the fire, the children in and out, but still he could not, and went to work again. After reasoning and dreaming of the great deed of the day, he went to the house again, but still could not, and came out; and this alternate resolving and wavering, this impulse of passion, and this recoiling of nature recurred most part of the day, till at last, sitting opposite to her again, he made a sudden plunge at her throat, and scientifically Burked her by compressing the mouth and nose, after which a sore fit of sated fury succeeded, which gave way, when people began to come in, to an access of terror and cunning, which made him do everything possible for his own safety, till tired of wandering about, and haunted by some of his religious notions, he went towards Stornoway to redeliver himself (for he had been previously taken, but escaped), when he was discovered. He is now low and resigned, and says he has not been so comfortable for years, because he has got the better of the Devil at last, and is sure of defying him on the 11th of May.’

23 April 1838
‘We reached Aberdeen on the 18th, through clouds of snow and bitter blasts. There were three wreaths between Huntly and Pitmachie, which really alarmed me.

I know no part of Scotland so much, and so visibly, improved within thirty years as Aberdeenshire. At the beginning of that time, the country between Keith and Stonehaven was little else than a hopeless region of stones and moss. There were places of many miles where literally there was nothing but large white stones of from half a ton to ten tons weight, to be seen. A stranger to the character of the people would have supposed that despair would have held back their hands from even at- tempting to remove them. However, they began, and year after year have been going on making dikes and drains, and filling up holes with these materials, till at last they have created a country which, when the rain happens to cease, and the sun to shine, is really very endurable.

Moncreiff joined me at Aberdeen, and we were three days in Court there, from morning till past midnight. There was nothing curious in any of the cases. The weather was so bad that we had no public procession, but went to Court privately and respectably. The dignity of justice would be increased if it always rained. Yet there are some of us who like the procession, though it can never be anything but mean and ludicrous, and who fancy that a line of soldiers, or the more civic array of paltry police-officers, or of doited special constables, protecting a couple of judges who flounder in awkward gowns and wigs, through the ill-paved streets, followed by a few sneering advocates, and preceded by two or three sheriffs, or their substitutes, with white swords, which trip them, and a provost and some bailie-bodies trying to look grand, the whole defended by a poor iron mace, and advancing each with a different step, to the sound of two cracked trumpets, ill-blown by a couple of drunken royal trumpeters, the spectators all laughing, who fancy that all this ludicrous pretence of greatness and reality of littleness, contributes to the dignity of justice. Judges should never expose themselves unnecessarily - their dignity is on the bench.

We have had some good specimens of the condition of jails. One man was tried at Inverness for jail-breaking, and his defence was that he was ill-fed, and that the prison was so weak that he had sent a message to the jailor that if he did not get more meat he would not stay in another hour, and he was as good as his word. The Sheriff of Elgin was proceeding to hold a court to try some people, when he was saved the trouble by being told that they had all walked out. Some of them being caught, a second court was held, since I was at Inverness, to dispose of them; when the proceedings were again stopped from the very opposite cause. The jailor had gone to the country taking the key of the prison with him, and the prisoners not being willing to come forth voluntarily, could not be got out. Lord Moncreiff (who joined me at Aberdeen) tells me that when he was Sheriff of Kinross-shire, there was an Alloa culprit who was thought to be too powerful for the jail of that place. So they hired a chaise and sent officers with him to the jail of Kinross, where he was lodged. But before the horses were fed for their return, he broke out, and wishing to be with his friends a little before finally decamping, he waited till the officers set off, and then returned to Alloa, without their knowing it, on the back of the chaise that had brought him to Kinross, with them in it.

Aberdeen is improving in its buildings and harbour. The old town is striking and interesting, with its venerable college, its detached position, its extensive links, and glorious beach. But the new and larger city is cold, hard, and treeless. The grey granite does well for public works where durability is obviously the principal object, but for common dwelling-houses it is not, to my taste, nearly so attractive as the purity of the white freestone, or the richness of the cream-coloured. Polishing and fine jointing improve it much, but this is dear, and hence the ugly lines of mortar between the seams of the stones.’

3 August 1840
‘We left Dalmally this morning before eleven. The day still incapable of improvement. The superiority of the Cairngorms is in their ridginess. The Dalmally mountains are more earthly and lumpish. But what lumps! And how well placed! Oh for old oaks, a huge old castle, and a feudal history, about the centre of that amphitheatre!

The country from Dalmally to this was new to me, and it is now gratifying to an aged gentleman to have the omissions of his youth rewarded by being able to say that so is the journey from this to Lochgilphead, and from Lochgilphead to Inveraray.

The upper, that is the Dalmally, end of Loch Awe, dignified by the ruins of Kilchurn Castle, and bounded by the steep and stony Ben Cruachan, with its wooded base and the magnificent corries that flank its northern bank, is all very fine; the southern hills, near the lake, are low, but this implies shallowness of water, which gives islands, with which accordingly this part of the loch is more richly supplied than most of our Highland waters.

No river has a more striking outlet than the Awe, with its sides roaring with cataracts, and so steep that, though sheep were browsing on their oases of verdure, it defied us to find out how they had got there, or were ever to get away. The river makes a short but violent rush to Loch Etive, amidst a profusion of mountain, wood, and many well-placed cliffs, till Muckairn Kirk, from which the surface recedes on both sides, tells us we have gained the summit, and must now descend to the sea.

Lest Ben Cruachan, whose summit was glittering to-day as well as all the other sublimities of the district, should not be sufficient for the honour of Muckairn, the heritors or somebody have erected a thing in the churchyard, about the size of a large broomstick, and not more attractive in its form. I asked the driver what it was. “ It’s a moniment to a gentleman.” “What gentleman?” “Ou, a dinna mind his name. He dee’d a while ago. Ou’ ay. A mind noo. It’s to Lord Ne-e-elson.”

The descent from this summit to Loch Etive is all very fine. The very rapid ebbing of the water towards low tide as we saw it, suggests the notion of an American river; the dun hills remind one who has never been among them, and knows them only from opinion, of something more poetical; and the appearance of little, comfortable Oban, with the feudal fragment of Dunolly, makes the traveller, even of two days, feel as if he had reached a haven of repose after a long and perilous voyage.

This is the gem of sea villages. A small bay locked in by hills; five little vessels sleeping on the quiet water; a crescent of white houses almost touching the sea, backed by a corresponding curve of cliff; the old tower of Dunolly at the end of the one horn, and high knolls at the end of the other; no manufactures, no trade, and scarcely any bustle, several strangers attracted by mere beauty and tranquillity; all this completes one’s idea, or rather one’s feeling, of a peaceful summer sea retreat. How gloriously the sun set behind the hills of Mull! and with what deep and ineffable peacefulness has the night gradually, and as if reluctantly, closed over the silver waters.

I half tremble to think that to-morrow is destined for the Sound of Mull in a steamer, in order to see lona and Staffa, by me for the first time. Hitherto my stomach has only been for the solid earth, and I am shabby enough to half wish for the apology of a storm.’

11 January 1841
‘I returned yesterday from holding the Glasgow Winter Circuit.

On Monday the 4th, my daughter Elizabeth, Miss Rosa Macbean, and I, went, amidst heavy snow and bitter cold, to my daughter Mrs. Stewart’s at the Manse of Erskine. I stayed there all night, and went next morning to breakfast at Moore Park, near Govan, where my colleague Lord Medwyn was, at his nephew’s, Charles Forbes, banker. We went from that, in procession, to Court.

There were 68 cases, of which 65 were tried, the other three being put off from absence of witnesses or of culprits. There were two cases which occupied a whole day from nine one morning till four next morning, yet, except one immaterial case which Medwyn remained to try to-day (Monday), the whole business was leisurely and patiently gone through on Saturday night, and I came home (still through snow and frost) yesterday.

Medwyn, though more of a monk in matters of religion or politics than any man I know, is an excellent, judicious, humane, practical judge, with great industry, and a deep sense of official duty. Though pious, and acquainted, by long administration of the affairs both of the innocent and the guilty poor, with the feelings of the lower orders when in distress, he agrees with me in the uselessness, if not the hurtfulness, of the judge preaching to every prisoner who is undergoing sentence.

We had three capital cases, a murder, a rape, and a robbery. But though each was as clearly proved as if the commission of the fact had been actually seen, and each was a very aggravated case of its kind, such is the prevailing aversion to capital punishment, that no verdict inferring such a punishment could be obtained, and these horrid culprits were only transported. It can’t be helped as yet, perhaps, but this want of sympathy between law and the public is very unseemly. The public is wrong.

We had also a bad case of bigamy, for which, according to our usage, we could only send the heartless, perfidious villain for one year to jail. This, till lately, was the English punishment also, but within these two years they have got a statute extending it to seven years transportation. I have already renewed my recommendation to the Lord Advocate (A. Rutherfurd) to try to pass such an Act for Scotland.’

15 September 1849

‘The Inverness criminal business was finished on Thursday night.

But I must not forget the mail-coach. It was the one from Edinburgh to Inverness, by the Highland road. It was due at Inverness about nine or ten on Wednesday night, but was upset on the north side of Moy into a swollen stream, and the whole insides were very nearly drowned. They had, after being saved, to shiver, in their drenched garments, and without fire, though in a sort of mud toll-house, for six or seven hours, after which they were got on. Mr. Aitken, the Clerk of Court, and two counsel, were three of the drooked. The clerk’s papers all went down the stream, but were recovered, though well steeped.

The only thing memorable in our business was a case of rioting, deforcement, etc., charged against four poor respect- able men, who had been active in resisting a Highland clearing in North Uist. The popular feeling is so strong against these (as I think necessary, but) odious operations, that I was afraid of an acquittal, which would have been unjust and mischievous. On the other hand even the law has no sympathy with the exercise of legal rights in a cruel way. The jury solved the difficulty by first convicting, by a majority, and then giving this written, and therefore well-considered, recommendation,

“The jury unanimously recommend the pannels to the utmost leniency and mercy of the Court, in consideration of the cruel, though it may be legal, proceedings adopted in ejecting the whole people of Solas from their houses and crops, without the prospect of shelter or a footing in their fatherland, or even the means of expatriating them to a foreign one,” a statement that will ring all over the country.

We shall not soon cease to hear of this calm and judicial censure of incredible but proved facts. For it was established (1) that warrants of ejectment, that is, of dismantling hovels, had been issued against about sixty tenants, being nearly the whole tenantry in the district of Solas, comprehending probably three hundred persons, warrants which the agents of Lord Macdonald had certainly a right to demand, and the Sheriff was bound to grant; (2) that the people had sown, and were entitled to reap their crops; (3) that there were no houses provided for them to take shelter in, no poor house, no ship. They had nothing but the bare ground, or rather the hard, wet beach, to lie down upon. It was said, or rather insinuated, that “arrangements” had been made for them, and in particular that a ship was to have been soon on the coast. But, in the meantime, the peoples’ hereditary roofs were to be pulled down, and the mother and her children had only the shore to sleep on, fireless, foodless, hopeless. Resistance was surely not unnatural, and it was very slight. No life was taken, or blood lost. It was a mere noisy and threatening deforcement.

I am sorry for Lord Macdonald, whose name, he being the landlord, was used, but who personally was quite innocent. He was in the hands of his creditors, and they of their doer, a Mr. Cooper, their factor. But his lordship will get all the abuse.

The slightness of the punishment, four months’ imprisonment, will probably abate the public fury.’

22 September 1849
‘The Aberdeen criminal business exhausted four days, Tuesday, Wednesday, Thursday, and yesterday. There were not more cases than usual; but they happened to be of a worse description. In particular, there were four capital cases, viz. two murders, one murder combined with raptus, and one raptus alone. One of the murders ended in an acquittal, and very properly, because though the guilt was certain and savage, the evidence was not satisfactory. In another murder, a plea of culpable homicide produced twenty years’ transportation. The simple raptus ended in a conviction, and in transportation for life. The murder and raptus combined caused a sentence of death. This last was a horrid case.

The prisoner was James Robb, a country labourer of about twenty-five, a known reprobate, and stout. His victim was Mary Smith, a quiet woman of sixty-two, never married, or a mother, who lived by herself in a lonely house by the wayside. There was a fair held at a village in Aberdeenshire called Badenscoth, which sometimes, though in no eminent degree, produced some of the disorderly scenes natural to fairs.

Mary Smith, though not the least alarmed, happened to observe casually that “she was not afraid of anybody, except that lad Jamie Robb.” That very night Robb left the fair (9th April 1849) about ten, avowing that he was determined to gratify his passion on somebody before he slept. He had then no thought of this old woman; but, unfortunately, her house lay in his way. He asked admittance, upon pretence of lighting his pipe. She refused. On this he got upon the roof and went down the chimney, which consisted of a square wooden box about 5 feet long by 2 and a half wide, placed about 8 feet above the fire. Its soot was streaked by his corduroy dress, which helped to identify him. Having got in, the beast fell upon its prey. She was thought in good health, but after death was discovered to have an incipient disease in the heart, which agitation made dangerous, but which might have lain long dormant. The violence of the brute, and the alarm, proved fatal. She was found dead in the morning, and the bed broken, and in the utmost confusion. A remarkable composite metal button, broken from its eye, was found twisted in what the witness called “a lurk,” or fold, of the sheet. Buttons of exactly the same kind, and with the same words and figures engraved on them, were found on his jacket, all complete except that one was awanting. But its eye remained; and this eye, with its bright recent fracture, exactly fitted the part of the button that had been found. These circumstances would have been sufficient to have established his having been in the house. But his declaration admitted the fact. Consent was excluded by its being obvious that it was the energy of her resistance that had killed her.

It is difficult to drive the horrors of that scene out of one’s imagination. The solitary old woman in the solitary house, the descent through the chimney, the beastly attack, the death struggle, all that was ‘going on within this lonely room, amidst silent fields, and under a still, dark sky. It is a fragment of hell, which it is both difficult to endure and to quit.

Yet a jury, though clear of both crimes, recommended the brute to mercy! because he did not intend to commit the murder! Neither does the highwayman, who only means to wound, in order to get the purse, but kills.

Within a few hours after he was convicted he confessed, and explained that the poor woman had died in his very grip. (He was executed, solemnly denying his guilt, quoad raptus!) [. . .]

The Queen is living at Balmoral, and therefore I expected to be obstructed by some of the usual bustle of royalty. But it is reputable for the royalty of this nation that, except by a paltry flag set up before his door by the inn-keeper of Ballater, there was not a vestige of Majesty in any part of the strath. We did not encounter a single carriage, nor a single rider, nor one soldier, nor a police officer, nor anything to mark a distinguished presence. The inns were rather less crowded than usual, the post-horses as fresh, the strath as natural. The sheep, the stots, and even the barelegged children, all went off exactly as before. Balmoral itself was silent; flagless; apparently un-guarded; calm; beautiful. I think this very respectable in her Majesty and family. It seems to show sense and taste. And the fact that such enjoyment of such virtuous pleasures is not merely possible, but easy and habitual, demonstrates how deep the monarchical principle is in the mind of the country, and how much better it is promoted by rational conduct, than by the common follies of royalty.’

The Diary Junction

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