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3 Altered in 2d ed. to " The witness."


popular belief in a compact between himself and the
Prince of Darkness, or that he was amusing himself
at the expense of his colleague with a grim humour
of which we have no other trace. But the story, as
really told by Wodrow, relieves from this puzzling
alternative. Eothes did not make his inquiries of
Sharp, but of the prisoner ; and the confession came,
not from the Archbishop, but from the witch.

It is impossible to deny that this inaccuracy, even
in the more modified form in which it appears in these
volumes, seriously detracts from Mr. Burton's reputa-
tion as an historian. Taken together with his love of
paradox, it shakes our faith in his guidance. He is
incapable -of wilfully misleading; his impartiality is
beyond question ; his research is great ; yet he seems
to want that craving for truth, that impatience of any
chance of error, which is the first virtue of an historian.
He comes under the censure of Thucydides OVTO>$
araXa/Treo/oo? rot? TroXXot? r) r}Tr)(ri<$ Trjs a\T]Oeia^ y /col eirl
ra erolfjia paXkov TpeTrovrcu ; with, perhaps this qualifi-
cation, that Mr. Burton's dTa\ai7ra)pia throws him
back not so much on the mt/uoy, as on the paradoxi-
cal and the fanciful.

We much regret that Mr. Burton should not have
included in his work some account of the development
of Scottish jurisprudence during the seventeenth cen-
tury. Amidst the convulsions of civil war and the
storms of religious persecution even in spite of the
blighting influence of judicial corruption the muni-
cipal law of Scotland was then undergoing a course of
improvement, both in form and substance, unexampled
either before or since. Statutes of prescription were
passed; the law of tithes was settled; sound prin-
ciples of bankrupt law were recognised ; valuable
enactments were made for the encouragement of
agriculture ; in the process of "ranking and sale" some


of the most advanced principles of modern land legis-
lation were anticipated. The men who devised these
measures the lawyers of the seventeenth century
we know to have been men of learning and accom-
plishment, sound jurists, g09d scholars, eloquent
rhetoricians. Looking at their ]egislation we cannot
but believe that they must also have been animated
by a desire to improve the jurisprudence and advance
the prosperity of their country. On the other hand
they were, many of them, cruel bigots, subservient
tyrants, faithless, and corrupt. Nor did this side of
their characters fail to leave its mark. They pressed
upon the people a criminal law, in which regulations
sometimes strangely favourable to the accused were
nullified by vicious practice ; they administered, with-
out remorse and without thought of change, the Scots
law of treason, which Mr. Hallam justly stigmatises
as " one of the most odious engines that tyranny ever
devised against public virtue " they introduced a
rigid system of entails exactly four hundred years
after the English nobles had inflicted this evil on their
country, and more than two hundred years after the
boldness of the English judges had, in Taltarum's
case, found out a remedy. The strange combination,
in those men, of culture and barbarism ; of sagacity,
patriotism, and statesmanship, with bigotry, cruelty,
and oppression ; and the result of all, not only on the
law, but on the whole national development, would
have afforded material for an interesting and instruc-
tive page of history.

We regret even more Mr. Burton's silence as to
matters academical. Education has always been, as
it were, a specialty of Scotland ; and no history of
that country can be regarded as complete in which
her peculiar and long-established system, both of
school and university training, is disposed of in some


half dozen pages. As a mere question of art some
detailed account of the origin of the older universities
might have afforded a picturesque relief to the gloom
of early Scotch history. How effectively, for example,
Mr. Motley varies his sombre story by his description
of the pompous ceremonial which attended the foun-
dation of the university of Leyden. Of yet higher
historical value would have been a clear account of
the great educational scheme of Knox what was its
scope, how, and by whom, it was frustrated. For
Knox's wide designs, though much talked about, are
not generally known ; and an exposition of them
would, at this particular time, have been signally

With all its faults and shortcomings, which we have
not been slow to indicate, Mr. Burton's work is now,
and will probably continue to be, the best history of
Scotland. So far as matters ecclesiastical are con-
cerned, it has, and need fear, no rival. So far as
regards the War of Independence, it holds the same
position of superiority. If on minor points he has
been less successful ; if his narrative sometimes fails
to attract, or his argument to convince ; if we can
mark omissions which mar the completeness of the
work ; we may yet feel justly grateful to the historian
who has for the first time placed before us in the
light of truth those aspects of Scottish history which
are most worthy of study and best calculated to
reward it.


SCOTLAND has not been fertile in great statesmen.
During what may be called the kingly period of
her history from the accession of Robert IT. to the
death of James v. the one thing essential to the
well-being of the people, and to the defence of the
country against English invasion, was to curb an
overgrown, turbulent, and treacherous nobility ; a
task to which no man was found equal. At the great
uprising of the Reformation a wider field was opened ;
nobler ends came into view. Knox, though not in
the strict sense of the word a statesman, yet did the
work of the greatest : he awoke a national life ; he
called into political existence the middle-classes of his
countrymen. From various causes Scotland, in his
time, took a place in the politics of Europe out of all
proportion to her real power. But her statesmen,
with the single exception of Murray, were unworthy
of their opportunities. Maitland of Lethington has a

1 1. " Memoir of Sir James Dairy mple, First Viscount Stair. A Study
in the History of Scotland and Scotch Law during the Seventeenth Cen-
tury." By &. J. G. Mackay, Advocate. Edinburgh : 1873.

2. " The Stair Annals." By John Murray Graham. Edinburgh: 1875.

3. " William Carstares. A Character and Career of the Revolutionary
Epoch." By Robert Herbert Story, Minister of Roseneath. London: 1874.
[Reprinted from the " Edinburgh Review," No. 291. January 1876.]


great but undeserved reputation. He was a man, as
Mr. Burton has shown, rather crafty than wise ; he
seems to have studied the subtleties of Italian poli-
ticians beyond the powers of his own brain ; he fought
with armour which he had not proved, and the result
of all his tortuous devices was hopeless failure.

On the accession of James to the English throne
Scotland sank into insignificance and degradation.
From this she was, for a brief season, raised, not by
any efforts of Scotch statesmanship, but by the whole-
some stimulus of the tyranny of the Stuarts, wanton
with prosperity ; and strong, as they thought, with
the strength of England. The Covenant, the abjura-
tion of prelacy by the Assembly of 1638, the inva-
sions of England, were bold and vigorous measures.
It is not too much to say that to the conduct of Scot-
land at this juncture England probably owed her
freedom. But the end was unworthy of such begin-
nings. The fervour of popular feeling which had
supported Knox blazed up again for a time, but could
not long endure. The national life of the Eeforma-
tion period had died away. The people had been
crushed by civil war, by poverty, by the utter misrule
which followed upon the Union of the Crowns. " The
gentry of that nation," writes one of Cromwell's
officers, "have such influence over the commonalty
that they can lead them which way they please."
Unhappily no one was found who could lead them
wisely. The needy nobles and mercenary soldiers
who led the Scottish army into England were ani-
mated by no higher motive than a love of English
quarters and English money ; the spirit of resistance
to ecclesiastical tyranny, which at first stimulated the
people, soon degenerated under evil guidance into a
fierce intolerance, a determination to impose Presby-
terianism upon all men, which found its fitting con-


elusion in the acceptance of Charles II. as a Covenanted
King. During the Usurpation Scotland was preserved
from native rule ; under the restored authority of her
"native princes," the wisdom of Ahitophel could
have availed nothing to any upright Scottish poli-
tician, except in so far as it might have counselled
the necessity of a speedy retreat to Holland.

At the Kevolution dawned a day bright with a
fairer promise for Scotland than for any portion of
the British dominions. The oppression from which
she was then set free had been greater than the
oppression of England ; she could look to the future
with a better hope than the most sanguine could
entertain for Ireland. Unlike the case of England,
so utter had been the disregard of law, so entire the
overthrow of every cherished institution, that the
whole constitutional fabric had to be re-constructed.
Unlike the case of Ireland, enmities of race and creed
were not so deeply rooted as to render such re-con-
struction hopelessly beyond the reach of wisdom and
honest purpose. Again the leaders, by position, of
the Scottish people failed in the time of need. If, as
Mr. Arnold thinks, the virtue of an aristocracy lies in
openness to ideas, never was a body less worthy of
the name than the nobility of Scotland. Happily,
influences were now at work which opened a career
to "new men." It is our purpose, with the aid of
the books which are at the head of this article, to
give some account of the foremost of these the two
Dairy mples, father and son founders of a family
which, through several generations, produced men
eminent in literature, law, arms, and diplomacy.

Mr. Graham's work, with the least pretension, is
the most valuable of the three. It embraces the life
of the founder of the house, of his son, the first Earl
of Stair, and of his grandson, the Field marshal and


diplomatist the " magnanimous Stair " of Carlyle's
Frederick. He has published, for the first time, many
letters of importance and interest. He has done his
own part with taste and judgment. His narrative is
brief but clear ; his candour and impartiality beyond
praise. Mr. Mackay's book is a more elaborate effort.
It is, as he calls it, " a study in the history of Scot-
land and Scotch law." And, as such, it has many
merits. But it is confused and without method.
Hence it leaves no vivid impression on the reader's
mind a fatal defect in a biography. We shall have
occasion, also, in the course of this article, to note
instances of bad taste, of over-confidence, of one-sided
judgment, in Mr. Mackay's volume. And we are,
therefore, the more anxious now to recognise his con-
siderable research, his liberality of thought, and the
freshness and vigour which animate his pages. Of
Mr. Story's labours we cannot speak so favourably.
That the book is a dull book is not altogether the
author's fault. Assuredly Carstairs was no common
man. Equal in astuteness and sagacity to the Master
of Stair himself, he was in honesty and fidelity
superior perhaps to all the politicians of his age and
nation. There is reason to believe, with some degree
of certainty, that he rendered good service to the
State, in forwarding, against ignorance and prejudice,
the true interests of Scotland. But those services,
during the most important part of his career, took the
shape of private counsel to William. Circumstances,
together with his profession, excluded him from
public life. Hence his biography wants interest a
want not supplied by his guarded correspondence.
But Mr. Story's book has graver faults than the fault
of dulness. It is marked by a tone of loftiness which
the reader finds nothing to justify. There is little
evidence of research; interest is not awakened by


novelty of material or originality of thought. His-
torical insight is wanting ; there are grievous mis-
takes in judgments of character as in a rhapsody
about Claverhouse, and the praises of that unscrupu-
lous turn-coat, Sir James Stewart. It is difficult not
to be offended by the ungenerous spirit which finds
pleasure in the repetition of the idle slander that
William encouraged Monmouth's adventure in order
to rid himself of a rival ; it is impossible not to
smile at the taste which can find in the position of
Carstairs at William's death a parallel to Diocletian
at Salona and Charles v. at Yuste. Inaccuracy is
shown even in the slipshod way the references are
noted ;* the style, level enough as a rule, is disfigured
by frequent and vain attempts at effect. 2 Worst of
all, there are not a few traces of that bitterness towards
any who chance to differ from Mr. Story especially
on matters ecclesiastical which so painfully charac-
terises the school to which he belongs. But we pass
gladly from the duty of criticism to the more pleasing
portion of our task.

The greatest of Scottish jurists was born in Ayr-
shire in the year 1619, of a family by no means so
obscure as his enemies in after days were prone to
allege. He was educated at the University of Glas-
gow, where he graduated in 1637 ; and four years

1 As thus : "Burnet, vol. iii." " Fountainhall, Wodrow," p. 148.

2 The following style of writing is the reverse of impressive: "The
chamber of the Privy Council echoed with the howls of the victims of
the boot. There, one day, might be seen Dalzell striking the prisoners
under examination over the mouth with his sword-hilt till the blood
sprang ; on another, Lauderdale baring his brawny arms above the
elbow, and swearing ' by Jehovah ' that he would force the gentlemen
of Scotland to enter into those bonds " (p. 45). Nor is a distinct idea of
a political situation conveyed thus : " Jacobite stratagems, Episcopal
pretensions, Presbyterian jealousies, national prejudices, personal dis-
honesties, and political corruptions weltered together in illimitable battle
and confusion '' (p. 275).


later was appointed, after a competitive examination
as was the wont then a Professor or Eegent in
Philosophy. In 1648 he resigned this position for the
more stirring profession of the bar, to which he was
called in his twenty-ninth year. Almost immediately
thereafter he was appointed Secretary to the Com-
missions which went to Holland seeking a virtuous
Covenanter in Charles n. He is known during
these visits to have formed the acquaintance of
Salmasius, and he may be reasonably supposed to
have profited by intercourse with the many eminent
Dutch jurists then living. Sagacity, far inferior to
that of Dalrymple, would "have forbidden any more
active support of Charles's fortunes ; the future
President, for about ten years, pursued in safe insigni-
ficance his professional avocations. In 1657 not ten
years after he had been called to the bar Monk
recommended him to Cromwell for the office of
Judge, as being " a very honest man and a good
lawyer." Stair's acceptance of this office seems to Mr.
Mackay a thing requiring excuse. In our judgment
it was one of the most justifiable steps in his some-
what shifty public life. Nor do we think it worth
while to defend a course of which an example was
set by such men as Hale in his own profession, and
Blake in another. Far more questionable was his con-
duct under Charles. He was knighted immediately
after the Kestoration, and included in the first Com-
mission of Scottish Judges. But in 1662 a Declara-
tion was imposed on all persons in offices of trust.
This measure was aimed directly at Presbyterians.
The declarant affirmed solemnly the illegality of all
leagues, covenants, and gatherings in the late troubles ;
" and particularly, that those oaths, whereof the one
was commonly called ' The National Covenant ' (as it
was sworn and explained in the year 1638 and there-


after), and the other entituled ( A Solemn League and
Covenant/ were and are, in themselves, unlawful oaths,
and were taken by and imposed upon the subjects of
this kingdom against the fundamental laws and
liberties of the same." Stair hesitated. His family
was Presbyterian. He himself had all his life been a
Presbyterian. " In the late troubles," he had for two
years borne arms "for Christ's Crown and Covenant."
He had, at one time, resolved to resign ; but a slight
concession from those in power sufficed to overcome
his scruples. Lauderdale, who seems to have had as
much liking for Stair as it was in his nature to
have for any man, and who doubtless appreciated
the value to the administration of Stair's character
and abilities, stood his friend. He was summoned to
London, and admitted to an interview with Charles,
who possibly may have remembered with favour the
secretary of Breda and the Hague. The result was a
permission to accompany his signature of the Declara-
tion with the verbal statement, that " he was content
to declare against whatever was opposite to his
Majesty's just right and prerogative." These words
are no real qualification of the terms of the Declara-
tion, and it is difficult to believe that any mind can
have regarded the utterance of them as other than a
farce. 1 To such paltering with conscience we prefer
the frank readiness of Lauderdale to " sign a cartfull
of such oaths before he would lose his place."

Stair was created President of the Court of Session,
and made a member of the Privy Council in 1671.
He held these offices for ten years years during
which, in the calm judgment of Hallam, the wicked-

1 Very different from the qualification with which Barley took the
test of drinking the health of the Primate of St. Andrews in Niel Blane's
Change House " May each prelate in Scotland soon be as the Right
Reverend James Sharp." Well might Both well say, "I don't know
what the devil the crop-eared Whig means."


ness of the administration can find no parallel in
modern history. For this Mr. Mackay proposes no
defence ; Mr. Graham adopts the defence stated by
Stair himself in his " Apology," which is simply that
he did not approve of "severity against those who
suffered for serving God in the way they were per-
suaded ;" that he "did what he durst to save them."
The defence is not very successful especially when
we consider the small result of his exertions. The
distinction between commissions granted for the per-
formance of necessary public duties and those which
" relate to councils for establishing usurped power or
burdening the people," by which Stair justified his
holding office under Cromwell, cannot avail him in
this matter. Lauderdale was then carrying out his
scheme of subverting the Constitution and governing
Scotland by the Privy Council, without a Parliament ;
and every one who sat with him in the Privy Council
must be held responsible for the guilt of that scheme.
No one would impute to Stair the malignity of the
apostate Sharp, or the pleasure in human suffering
which showed itself in the dark nature of James ; but
a dislike to witness the infliction of torture was a
merit which he shared with the majority of his col-
leagues, and his preference for moderate counsels was
only evinced by absence or silence. By the practice
of such prudential arts no man can obtain exoneration
from whatever blame may attach to the government
of which, from motives of ambition or interest, he
consents to be a member.

But the time had now come when caution and
moderation could no longer avail. The Duke of York
came to Scotland as Commissioner in 1679, animated,
even then, by that determination to raise up Popery
which in the end cost him his crown. It was soon
apparent that any such design would be opposed by



all but the most subservient of Scottish statesmen.
Stair, at his first interview with the Duke, gave
offence by welcoming him to an " entirely Protestant
country." He filled up the measure of his iniquity by
carrying in Parliament an addition to the Test Act
of 1681, defining the Protestant religion as "the
religion contained in the Confession of Faith recorded
in the first Parliament of James vi." He tells us that
his object was " to provide the safest hedge against
Popery ; " and this object was perfectly apprehended
by James. Accordingly, Stair on going to London,
either to obtain permission to take the test with a
qualification, as he had done the Declaration of 1662,
or, as some have said, with the view of securing for
his more complaisant son the place which he foresaw
he himself would have to resign, was, at the instance
of the Duke of York, refused an audience of the
King ; and a new Commission was issued in which
his name did not appear. Stair assures us he would
not have signed the test. Why a man who had
signed the Declaration of 1662, and had been for ten
years a member of the Privy Council, should have
stickled at this test we are wholly unable to under-
stand. But it is unsafe to pronounce judgment on
matters of conscience especially when the consciences
are those of Scottish statesmen of the seventeenth
century. The main fact is, that Government never
offered him the chance of signing. To have done so
would have been a farce. His ruin was determined
on. Moderation, not unlike his own, had brought
destruction on Argyll. The President's declared
hostility to Popery was worse than moderation. His
dismissal came from the same cause which, a few years
later, raised Perth and Melfort over Queensberry :
and which in England led to the downfall of the
Hydes the resolve of James to have in his service


no minister who would not do his bidding even in the
matter of religious profession.

Stair retired to the country, but was not allowed
to enjoy his retirement. The eye of the tyrant was
upon him. In 1682 Claverhouse was sent to urge on
the persecution in Wigtown and Galloway. Of course,
he found cause of offence in everything done by the
fallen President. It is half melancholy, half ludicrous,
to read Stair's appeals to Queensberry, imploring
favour, protesting loyalty, and remonstrating against
being " disquieted " because his wife won't attend the
parish church, which he plaintively adds, " I cannot
help " an inability easy of credence if the lady had
any likeness to the mother of the bride of Lammer-
moor. 1 At last, acting on a friendly hint from Sir
George Mackenzie, he fled to Holland.

At Ley den fit refuge for an exiled scholar Stair
found a society, composed of the most eminent and
learned men in Europe, ready to soothe his six years
of banishment. Of his life there little is known.
He gave himself to literary pursuits ; he supported,
in a languid way, the enterprise of Argyll : while
resting his hopes, we can readily believe, on a very
different deliverer. He, least of all men, was likely to
have been led away by the proverbial credulity of
exiles. He was recommended by Fagel to the notice
of William, who soon saw and valued his cool sagacity.
He entered eagerly into William's great design, pro-
fessing himself willing to venture his head, his own
and his children's fortunes, in such an undertaking

1 Mr. Mackay's biographical enthusiasm prompts him to stand up for
Lady Stair. But he might have remembered that she is thus described
by one of her descendants : " In Lady Ashton the character of our great-
great-grandmother seems in many respects more faithfully delineated, or at
least, less misrepresented. She was an ambitious and interested woman,
of a masculine character and understanding." Letter from Mr. Dalrymple
Elphinstone in the Introduction to "The Bride of Lammermoor."


a declaration the magnanimity of which is somewhat
impaired by the fact that the family estates were
perfectly safe in any event, being at that very time
enjoyed by his eldest son, serving James as Lord

Online LibraryHenry H LancasterEssays and reviews → online text (page 8 of 38)