Henry H Lancaster.

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There is no room for the insinuation, made by a re-
viewer in the " Times" of September last, that he


acted his part with a view to his own advancement ;
that he was merely playing a card in the political
game. His sagacity was never so deluded. He knew
he had many and vindictive enemies, and he knew
the handle he was giving them. It is not too much
to say that the tone of his letters to Colonel Hill is
that of a man conscious of his own rectitude, yet fully
aware that he had much to fear from the prejudices
or weakness of mankind. He was animated, so far
as we can now judge, simply by misdirected public
spirit. He was fully persuaded, nor was his persua-
sion wrong, that peace and prosperity would never be
known to his country until the supremacy of law was
established among those freebooting mountaineers.
In his comprehension of the magnitude of the existing
evil he was superior to any statesman of his time.
Unhappily, this feeling had obtained such power over
his mind that he became utterly reckless as to means
if only a cure could be effected. Nay, it may be said,
we fear, with truth, that long brooding over the law-
lessness of the Highlands had brought him to such a
state that he would have shrunk from no extreme of
severity. Still, though his heart was hardened, his
conscience silenced, even his acute judgment warped,
it is no exaggeration to say that he was throughout it
all animated by a sincere desire for the permanent
good of his country. To have sent this man to a
felon's death because he might with legal truth have
been held guilty of the crime of murder, would have
been to violate the principles by which such cases
should be determined, not less than if Warren Hastings
had been hanged because of the horrors inflicted on

That William, on this occasion, extended an undue
indulgence to crimes committed in his service, may
have left a stain upon his fame, but was certainly for-


tunate for Scotland. Stair's subsequent public life
was short but eventful. He did not take his seat in
Parliament till the year 1700. He was sworn a Privy
Councillor on the accession of Anne in 1702. He
rendered important services in the last session of the
old Parliament of William, facilitating the passing of
Acts recognising the title of Anne, confirming the
Presbyterian form of Church government, and em-
powering the Crown to appoint Commissioners to
treat for a union of the kingdoms. By his exertions
in support of that measure the Earl of Stair, for to
that rank he was elevated by the Godolphin Ministry,
earned an enduring title to the gratitude of his
countrymen. He was, says De Foe, " an eminent
instrument in carrying on the Union." To that end
he devoted all his astuteness in counsel, all his un-
rivalled powers of debate. His was the device which
baffled the Opposition by appointing a majority of
the Commissioners from their ranks ; his were the
arguments which secured the rejection of the limita-
tions which a party of pestilent oligarchs, led by
Fletcher, sought to impose on the prerogatives of the
Crown. So far as we can now judge, to him more
than to any other man Scotland owes the blessings
which have flowed from that great measure. On the
7th of January 1707, after a stormy and exhausting
debate, the last important article of the Treaty was
carried. In that debate Stair took a leading part,
and then, worn out by the long struggle now at last
brought to a successful issue, he went home to die.
He died at the post of duty not less surely than the
soldier struck down on the field ; and the man who
thus spent himself for the good of the commonwealth,
whatever may have been his errors or his crimes,
deserves the lenient judgment of history.

The characters of these men ^present features of dis-


similarity and likeness curiously interwoven. That
of the father is the more difficult to estimate aright.
Every reader is familiar with Lord Macaulay 's brilliant
sketch. That sketch by no means satisfies Mr. Mackay,
who, we regret to see, has taken up a line, popular
with clever young men at present, that of pecking at
the reputation of Lord Macaulay. In one place he
accuses the historian of " selecting from every quarter
the blackest colours to paint the character of Stair, the
father of the man destined to be the scapegoat for the
massacre of Glencoe." A graver charge could hardly
be made; and the only justification for it is that
Macaulay, in alluding to the "heart-rending tales"
which the calamities of the house of Stair had fur-
nished to novelists and poets, has adopted Sir Walter
Scott's version of the tragedy of " The Bride of Lam-
mermoor " ! Nor is Mr. Mackay at all correct in his
assertions that the traditions of this tragic event have
come to us " chiefly from the fierce antagonists of the
Dalrymples." The general truth of the story, as told
by Scott, is acknowledged in the Introduction to " The
Bride of Lammermoor," by the great-great-grandson
of Stair; and the version of the final catastrophe
adopted by the novelist is the most probable, and by
no means the most malicious, of the many traditions
which have been current.

In another place Mr. Mackay has permitted himself
to write thus : " Macaulay has drawn chiefly from these
satirists all the charges his enemies made against Stair,
and without examining their truth has insinuated
others for which even satire gave no foundation."
And then he quotes the powerful sketch we have
referred to from the third volume of the history.
Now such an accusation should have been carefully
substantiated. There is hardly an attempt to do so
on any point deserving of the smallest consideration.


There are a few critical notes which we must take
leave to characterise as exceedingly silly. For example :
Lord Macaulay ascribes to Stair " a wonderful power
of giving to any proposition which it suited him to
maintain a plausible aspect of legality and even of
justice ; and this power he frequently abused." In-
stead of attempting to controvert this, Mr. Mackay
demolishes the historian by the profound query
" How could such a power if he really possessed it
be only frequently abused 1" No single charge con-
tained in the whole passage is shown to be without
foundation. Two efforts are made in this direction,
from the frivolous character of which the critic's
inability to bring forward any serious instances may
be fairly inferred. The historian writes : " He pro-
tested, and perhaps with truth, that his hands were
pure from the blood of the persecuted Covenanters."
The note here is : " No ground for this ' perhaps ' has
been discovered." Surely it is no very harsh measure
thus to qualify such an asseveration on the part of a
man who was a member of the Privy Council during
the administration of Lauderdale. Indeed there is a
sense, and that not of a highly strained morality, in
which any man who then held such office may be
deemed altogether guilty of the innocent blood which
was shed. In his next point Mr. Mackay is yet more
unfortunate. He challenges Lord Macaulay 's state-
ment that Stair's fellow -exiles regarded him with
suspicion. Now it is quite certain that by a large
section of the Presbyterian party Stair was never
trusted. Not to multiply authorities, this is distinctly
stated by Balcarras, and indicated, not obscurely, by
Forbes of Culloden, the one a Jacobite, the other a
Presbyterian ; and, though we fear Mr. Mackay will
despise such an authority, Sir Walter Scott, in the
" Tales of a Grandfather," describes Stair and his son



as "men of high talent but of doubtful integrity;
and odious to the Presbyterians for compliances with
the late Government." We make these remarks in no
unfriendly spirit. But if Mr. Mackay is ever to fulfil,
as there is reason to hope he may, the promise which
this book, with all its faults, affords, he must study
the principles of historical evidence ; he must keep
present to his mind the difference between facts and
opinions ; he must be less hasty in his conclusions,
and more sparing in imputations ; and, we are con-
strained to add, he must be careful to observe modesty
and moderation of tone when he chances to differ
from writers of established fame.

It will be found, we suspect, that in this, as in
most of his judgments on character, Lord Macaulay,
making due allowance for habitual force of expres-
sion, is not far from the truth. We quite concur
with Mr. Mackay in thinking that our estimate *of
Stair should be little affected by the malignant attacks
of which he was so long the object. And we would
record our dissent from a condemnation of both father
and son which has received publicity and authority
from the " Times." 1

"Even in an age when ideas of political morality were
singularly loose, and when the most shameless time-serving
was the habit of the most eminent statesmen, the versatile
Dalrymples had to support an exceptional weight of obloquy.
If their enemies attacked them with unusual bitterness,
gloating with exultant malignity over a painful succession
of domestic misfortunes, we may take it that there was
some exceptional reason for it. ... They had most excep-
tional opportunities of being false alike to their friends and
their principles ; and the result was that in the end they
were neither loved nor even trusted, except by those who,
for the moment, had common interests with them."

1 " Times," September 3, 1875.


That both Dalrymples were false to their principles
so far as to hold office under administrations of which
they disapproved, is true enough. But was there
anything " exceptional" in this ? What was such a
measure of falsity, for example, compared with the
falsity of Lauderdale, or the apostasy of Perth ? That
they were false to their friends, in any practical way,
is unsupported by evidence. We should not like to
dogmatise about " love" among Scottish politicians of
that time ; but so far from not having been trusted,
it was the trust so often and so long reposed in the
Dalrymples which excited the enmity against them.
To infer extreme depravity on the part of the Dal-
rymples because of the hatred they inspired shows
utter ignorance of the period. The only " exceptional
reason" for that hatred was their " growing greatness,"
and their zeal for the true interests of the country.
They were hated by a proud, poor, greedy aristocracy ;
despising them as new men, unable to estimate their
services, envious of the knowledge and capacity which
had raised them to the level of Hamilton and Athole.
They were the first in Scotland who had so raised
themselves ; and the whole body of the secondary
nobility, who regarded the conduct of political affairs
as their exclusive right, and in such a rise not only
felt their own immediate defeat in the race for place
and power, but foresaw the permanent weakening of
their order, hated them accordingly. Supple poli-
ticians as they were, treachery was never brought
home to them. Of the father it may especially be
said that, while he served many masters, he was
faithful to them all. We do not ascribe to him the
lofty integrity of Nottingham or Somers ; but fidelity
even such *as his was then rare in England, and un-
known among the false, shameless leaders of Scottish
political parties in an age when, for the first and last


time, treason to the cause of Protestantism and free-
dom stained the honoured name of Argyll.

On the other hand, it is impossible to accept Mr.
Mackay's estimate of his hero. The praises of Wod-
row, and a few clerical admirers of Stair's "shining
piety," cannot outweigh the all but unanimous verdict
of contemporaries; the deliberate judgments of Burnet,
Scott, and Woodhouselee. 1 The actions of his life,
indeed, describe him best even as stated and de-
fended by himself. A cruel or vindictive man he was
not. But he was subtle and crafty ; greedy of place
though there were lengths to which, even for the
sake of place, he would not go. It is difficult to
acquit him of servility to Lauderdale ; and when he
describes his patron as " most zealous for his country,"
and as having come to be in difficulties " on account
of his favouring the phanatics," he wrote what he
must have known to be untrue. In his "Apology"
he boasts that he never took a bribe a height of
judicial rectitude to which there is reason to believe
he really attained. In his reports of two cases, Foun-
tainhall insinuates that the President was thought to
have been actuated by improper influences. The
authority of Fountainhall is deservedly high ; but he
does not state the charge as matter of his own belief,
still less of his own knowledge ; and, on the whole,
not in such a way as to force a conviction of the guilt
of Stair. He did much to reform procedure, especially
during his first tenure of the Presidency ; but towards
the end of his life, there arose on all sides violent out-
cries against his conduct of the business of the Court;
and it has been made matter of reproach against him
that Acts of Parliament were required to set right

1 Burnet calls him "a cunning man;" Scott doubts his integrity;
Woodhouselee imputes "turbulent ambition and crafty policy" both to
father and son.


abuses such as altering judgments, hearing cases with
closed doors, etc. which should have been put an end
to by the Court itself. It is very probable that Stair
had not sufficient strength of character to effect, by
his own influence, the required changes. Down to the
present day the Court of Session has been too chary
about reforming itself; too prone to wait for the
interference of the Legislature. Whether this strange
timidity has arisen from ignorance of the evils, or
from that contentment with things as they are which
naturally steals over the judicial mind, we can-
not say; but it has often brought the Court into
great unpopularity with the country, and then some
reckless Government forces on hasty, ill-considered
changes in obedience to popular clamour. There are
many who allege that such is the state of matters at
this very time. But for Stair's weakness there was
much excuse. The root of the evils with which he
had to deal was judicial corruption ; and that was, in
his day, so widespread that he may reasonably have
believed it incapable of cure otherwise than by legisla-
tive enactment. And the fact that, even after Parlia-
mentary interference, the taint of corruption clung to
the Scottish Bench for upwards of a century, goes far
to establish the correctness of such a belief. As a
law-maker Stair did little. The one important
measure connected with his name is the Act regu-
lating the mode of executing deeds an Act which,
at least as interpreted by subsequent decisions,
grievously needs amendment. The legal achieve-
ment which principally marks his epoch was the
Entail Act of 1685. From any share in the discredit
of having imposed entails on Scotland exactly 400
years after the English nobles had inflicted this evil
on their country, and more than 200 years after the
boldness of the English judges had found out a remedy,


Stair must be acquitted. He was in Holland when
the Act was passed ; and he has left on record his
strong disapproval of its policy. That responsibility
must be borne by Sir George Mackenzie ; who, had
he also realised his endeavours to abolish juries in
criminal cases, would have left behind him a work of
mischief, worthy, in its completeness and far-reaching
power for evil, even of his reputation.

Stair was a considerable author. His speculations
on physics were behind his age. " The Lord Chan-
cellor," said Harvey of Bacon, " writes on science like
a Lord Chancellor ; " and the sarcasm may be applied,
with greater force, to the writings of Stair. His
religious meditations will hardly now be read save
from curiosity. But, as a jurist, he has left an
illustrious name. His " Institutions of the Law of
Scotland " is a remarkable work. The historical part
is weak, especially as regards the old Common Law
of Scotland, and the introduction of the civil juris-
prudence ; points full of interest, and in Stair's day
possibly within reach of zealous inquiry. But the
value of the historical method was not, in that age,
understood. Again, he lends his authority to those
extreme views of the royal prerogative, or more
strictly, of the royal power, which were insisted on by
the Scotch lawyers after the union of the crowns, at
variance with the free spirit of Scottish Constitutional
Law. His style has received an admiration which we
cannot but think excessive. In his preface he warns
his readers not to expect a " quaint and gliding style/'
still less "flourishes of eloquence." But he avoids,
only too successfully, the error of that lucidity of
diction, the charm of which, in some writers, lays
such hold on the reader's mind, and so carries him
along, as under a spell, that he sometimes fails to
grasp the true reach of the thought. Stair's style has,


no doubt, a force and dignity befitting his subject ;
but it is cumbrous, and often complicated, even to
obscurity. The frequency of his allusions to the law
of Moses, and to the Bible generally, is not edifying,
and certainly not instructive ; indeed his fondness for
sacred sanctions has led him into a serious error of
classification. Yet the scope and execution of the
work entitle him to a high place among jurists. Scott
expresses regret that " his powerful mind was un-
happily exercised on so limited a subject as Scottish
jurisprudence." The limits of a subject, however,
depend not a little on the mode of treatment. Stair's
work is not a mere compendium of Scotch law. As
such, indeed, it stands high, even after the lapse of
nearly two centuries ; but a large portion of the work
may be truly described as a Treatise on Jurisprudence
generally, illustrated by reference to the law of Scot-
land and other systems. It has been compared, and
not unreasonably, by one of his editors to " a Treatise
of Universal Grammar, where the author, keeping in
view chiefly one language, and drawing most of his
illustrations from it, enables the student not only
more thoroughly to understand all the rules and
principles upon which the grammar of this language
depends, but also to apply this knowledge, with
advantage and facility, to every other language to
which he may turn his attention." He himself claims
that " a great part of what is here offered is common
to most civil nations, and is not like to be displeasing
to the judicious and sober anywhere, who doat not so
much upon their own customs as to think that none
else are worthy of their notice." This comprehensive
survey of legal relations common to all systems, the
constant search after principle, the philosophical
analysis, and the thorough technical knowledge, have
given to a large part of his treatise a vitality and


width of application unexampled, we think, among
works of the same class. To this day "Stair" is
constantly quoted in the e very-day work of the Scotch
Courts ; and we have been assured by an eminent
politician and lawyer that in his chapter on Eeprisals
was found the strongest authority for the position
taken up by Great Britain in the affair of the "Trent."
Mr. Mackay seems to us to institute not a flattering or
even a reasonable comparison when he compares Lord
Stair's Institutions with the practical labours of Coke,
or the easy commentaries of Blackstone. They are all
law books certainly ; but they have no other point of
resemblance. Stair's comprehensive and philosophic
treatise differs in its conception from the former, and
stands altogether on a higher level than the latter.
" I did write," he says, with a not ungraceful con-
sciousness of desert, " the Institutions of the Law of
Scotland, and did derive it from that common law
that rules the world, and compared it with the laws
civil and canon, and with the customs of the neigh-
bouring nations, which hath been so acceptable that
few considerable families in the nation wanted the
same, and I have seen them avending both in England
and Holland."

Inferior to his father in legal acquirement, Sir John
Dalrymple was, in many respects, a more remarkable
man. Macaulay estimates him as one of the first
men of his time. His knowledge was great, and in
him it was not the knowledge of a pedant, but of a
thorough man of the world. As a statesman he was
profound and far-seeing; as a debater he had no
equal. His letters show a love of reality, an im-
patience of pretence, an insight into character, a con-
tempt for national prejudices, rare among Scotchmen
of any time, hardly known among Scotchmen in his
day. His character was altogether a stronger one


than his father's. Quite as unscrupulous, even more
impenetrable, he was yet simpler and bolder. Hence,
while hated with especial hatred by his rivals in the
Parliament House, 1 he does not seem to have incurred
the general unpopularity of his father. Nor is this
surprising. The never-failing caution of the Presi-
dent ; his astute devices, on occasions of difficulty, to
save his reputation such as the verbal qualification
with which he took the Declaration ; his intense re-
spectability ; his profuse piety ; his forgiveness of
enemies, almost Pecksniffian; 2 and his general success
in life : were more calculated to arouse animosity than
the franker tergiversations and bolder courses of the
son, who, if he did some wrong, at least never made
profession of exceeding virtue. " He was," says De
Foe, " justly reputed the greatest man of counsel in
the kingdom of Scotland ;" and we are told by the
same authority that " he died to the general grief of
the whole island, being universally lamented." This
grief was not without good cause. Those who hated
Sir John Dalrymple most hated him because of ser-
vices which constitute an enduring title to the grati-
tude of his countrymen, and which must have been
widely appreciated even in his lifetime. For some
years after the Kevolution Scotland was exposed to a
danger, the character and extent of which has hardly
been appreciated by historians. A band of politicians,
powerful from social position, strong in persistency
of purpose, were bent upon establishing a narrow oli-
garchy. They sought to deprive the Crown of all

1 Thus Lockhart : " The Master (of Stair) is among the worst men in
this age ; and what has been said of him may serve for a character of his
two brothers, yea, the whole name ; only with this difference, that tho'
they were all equally willing, yet not equally capable of doing so much
evil as his Lordship."

2 " Most men thought this equality of spirit a mere hypocrisy in him,'*
says Sir George Mackenzie.


authority ; they were prepared to reduce the people
to serfdom ; the country was to be delivered over to
a poor, greedy, unprincipled aristocracy. Had they
prevailed, the future of Scotland would have been little
better than the long misery of Ireland from the
Eevolution to the Union. Keligious hatreds might
not have flamed so high ; but in Scotland, not less
than in Ireland, the domination of a small privi-
leged class would have brought with it poverty,
backwardness, and national degradation. To frus-
trate these pernicious designs was the leading pur-
pose of the Secretary's public life. The danger by
no means passed away with the breaking-up of the
notorious "Club." The country was not safe; Dal-
rymple's triumph was not secured, until the Treaty
of Union was signed. To the very last these
" patriots " struggled to curtail the royal power, 1 trust-
ing that the reversion would come to them. Seeing
early that they could not hope to defeat the Union
altogether, they sought thus indirectly to make it
ineffectual for good; and doubtless the provisions
which they sought to introduce would have had the
effect they desired. Stair clearly apprehended the
scope of these designs, and devoted himself to frus-
trate them. His success was complete, and happy
for his country. On the union of Scotland with a
constitution which had been the nurse of freedom,
with the deeply-rooted public spirit, and, above all,
with the increasing prosperity of England, that danger

Online LibraryHenry H LancasterEssays and reviews → online text (page 11 of 38)