|
GIBSON, (SIR) ALEXANDER,
lord Durie, an eminent lawyer and judge, was the son of George
Gibson of Goldingstones, one of the clerks of session. The period of
his birth we have been unable to discover; but as we find him
admitted a clerk of session in 1594, we may conclude that he was
born considerably more than twenty years previous to that period. It
appears that the appointment of Gibson to this duty created a new
clerkship, and as the addition in number would reduce the arbitrary
sources of emolument of the other two clerks, it was naturally
apprehended that the interloper would be received with the usual
jealousy of those whose interests are unduly interfered with. King
James the sixth, who had generally some deep and mysteriously wise
purpose in all he did, chose to be personally present at the
appointment of his nominee, in order that the royal choice might
meet with no marks of contempt. The mindful sovereign was on this
occasion pleased to be so highly delighted with the disinterested
conduct of his obedient clerks, who had so willingly received a
partner "at his Highness’s wish and special desire," that he
promised in presence of the court, to remunerate them with "ane
sufficient casualty for said consents." The chamber in the Register
house instituted by this appointment still retains the denomination
of "Durie’s Office." At that period the duties of a principal clerk
of session were of a more politically important nature than they
have been since the union: these officers had to register the
decrees and acts of parliament, in addition to their present duties.
The only remnant of their former occupations, is their acting as
clerks at the elections of the Scottish representative peers. Gibson
continued in his clerkship for all the remainder of his life,
notwithstanding the higher offices to which he was afterwards
promoted. In 1621, he was appointed a lord of session, and as the
duties of judge and clerk were rather anomalous, we find by the
books of sederunt, that the prudent clerk had procured in the
previous month his son to be installed in the office. Mr Alexander
Gibson, junior, being appointed conjunct clerk with Mr Alexander
Gibson, senior, during the life of the longest liver, the senior, it
may be presumed, continued to draw the salary, without being much
troubled with the duties. Seven years after his appointment to the
bench, we find him accepting a baronetcy of Nova Scotia, with a
grant of some few square miles of land in that district. In 1633, he
was appointed a member of one of the committees for the revision of
the laws and customs of the country. In 1640, he appears to have
been elected a member of the committee of estates, and his
appointment as judge was continued under a new commission to the
court in 1641. From the period of his elevation to the bench in
1621, till the year 1642, this laborious lawyer preserved notes of
such decisions of the court as he considered worthy of being
recorded as precedents, a task for which a previously extensive
practice had fitted him. These were published by his son in one
volume folio, in 1688, and are valuable as the earliest digested
collection of decisions in Scottish law. Their chief peculiarities
are their brevity, and, what would not appear at first sight a
natural consequence, their obscurity. But Gibson produced by a too
niggardly supply, the effect which is frequently attributed to a too
great multitude of words. He appears, however, to have always known
his own meaning; and when, with a little consideration, his
raciones decidendi are discovered, they are found to be
soundly stated. The clamours which other judges of the day caused to
be raised against their dishonesty and cupidity, were not applied to
Durie. He seems, indeed, as far as the habits of the times
could allow the virtue to exist, except in an absolutely pure being,
to have been a just and fearless judge, for in a
period of general legal rapine and pusillanimity, the possession of
a very moderate share of honesty and firmness in the judgment seat,
made their proprietor worthy of a nation’s honour. If the
affirmation of a professional brother may be credited, Durie
possessed, according to the opinion of Forbes, a later collector of
decisions, most of the intellectual and moral qualities which can
dignify the bench. It is a proof of the respect in which his
brethren held him, that while the office continued elective in the
senators of the college, he was repeatedly chosen as president. At
that period, the legal practice of Scotland appeared to have
improved for the mere purpose of substituting sophism and injustice
under form, for rude equity; it was a handle to be made use of,
rather; than a rule to be applied. The crown had recourse to legal
fictions, and unjust and arbitrary presumptions, in its dealings
with the subject. The subject, instead of calling for a recourse to
constitutional principles, sometimes rose against the administration
of the law, just or unjust. With private parties, the more powerful
got the command of the law, and used it against the weaker. A
striking instance of contempt towards the laws, which took place
during one of the presidencies of Gibson of Durie is mentioned in
Douglas’s Baronage, and Forbes’s Journal, and is more fully and
pleasingly narrated in the Minstrelsy of the Scottish Border. The
earl of Traquair had an action depending in court, in which it was
understood the president would, by his influence, cause the court to
give judgment against him. A border freebooter, or gentleman thief,
known by the name of Christie’s Will, owed to the peer some
gratitude and allegiance, having gained his protection by an
insolent jest on the subject of his having been imprisoned for
theft. This person being a gentleman both by descent and education,
insinuated himself into the president’s company during his usual
morning ride on the sands of Leith. On the two reaching a very
lonely spot, the judge was snatched from his horse, rolled into a
blanket, and carried off he knew not where. He was imprisoned three
months, during which time his friends and himself considered that he
was in fairy-land. The case was decided in favour of Traquair, and a
new president appointed, when the judge one morning found himself
laid down in the exact spot from which he had been so suddenly
carried off, and returned to claim his privileges. This useful man
died at his house of Durie on the 10th of June, 1644. He left behind
him a son of his own name, who was active among the other persons of
high rank, who came forward to protect their national church from
the imposition of a foreign liturgy. He is known as having boldly
resisted one of king Charles the first’s prorogations, by refusing
the performance of the duty of clerk of parliament, already alluded
to. He appears, however, not to have always given satisfaction to
the cause he had so well espoused, as he is more than once mentioned
in Lamont’s Diary as a malignant. He was raised to the bench in
1646. Besides this son, the wealth of the father allowed him to
provide a junior branch of the family with the estate of Adistone in
Lothian. |
