John Murray Graham.

Annals and correspondence of the viscount and the first and second earls of Stair; (Volume 1) online

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sent or choice of the lords", and after he was made chan-
cellor, Sir David Falconer of Newton, and after his death
Sir George Lockhart of Carnwath, were by the king's
letters named presidents and admitted in the same manner
as I was ; and from King Charles's return till this last ses-
sion of parliament, there was never the least scruple, mo-
tion, or question of any further requisite for the legal


establishment of the president of Session ; albeit in the
year 1674 much dislike was vented and parties stated
against the Session. And it is strange that the eminentest
lawyers that ever were of the nation could have been so
incircumspect as not to have a legal establishment of their
title. So that it is plain that the parliament 1661 was of
the opinion of King Charles I. that it was the king's right,
and that they had been in use to name, present, and recom-
mend as well the president as the other lords of session.
And to conclude this period, I cannot omit to take notice
of the ignorance of the libeller, who asserts that all the
presidents since 1579 till the year 1661 were the Lords
Proven, Urquhart, Curriehill, Sir Robert Spottiswood, and
Lord Durie, though it be known to the least intelligent
that the Lord Balmerino, secretary Preston of Pennycuick,
Collector-general, and the Lord Binning, Secretary, after-
wards. Earl of Haddington, were successively presidents of
the session, after Lord Urquhart and before Lord Currie-
hill. But it seems he has industriously omitted the men-
tioning of them, lest they, being great ministers of state
and favourites, their admission by the lords might have
been suspected to have proceeded upon the king's recom-
mendation, as well as mine ; and the Lord Durie was never
chosen nor admitted constant president, but sometimes
vice-president in the absence of Curriehill and Sir Robert
Spottiswood, and after the year 1641 was sometimes chosen
for a session, as were the Lords Innerpeffer, Foderens,
Balcomie, &c.

But suppose it were as clear as the light that the king
had neither right to elect, nominate nor present the presi-
dent of the Session, but had done it in all these cases with-
out warrant, yet no man that hath the least knowledge of
law can refuse that the disposition of him that hath no
right, with consent of him that hath right, is as valid and
sufficient right as if the consenter had been disponee, seeing
his consent communicates all right he had when he did
consent ; and therefore the consent of the lords to the


king's election by their express admission leaves no pre-
tence of quarrel. And though the vote of parliament
declaring that the president of session shall be elected by
the lords had then passed in an Act of Parliament, it could
only revive the Act of Parliament 1579, and could but have
effect adfutitra, and doth not declare anything ad prcetcrita,
and so could not touch my title, which had both the con-
sent of the lords in anno 1671 and renewed in 1689 ; as in
the case of President Proven, who, being a limited presi-
dent by the king's nomination, did not, by reason of the
subsequent correctory law 1579, either cease to be president
or was of new elected, but by virtue of his former admission
continued till he died. And now, after all this, I appeal to
the conscience of all just and unbiassed persons, if this
libeller hath any just pretence that I have betrayed my
country by accepting to be president of the Session. I
hope those that have charity that men may aim at the
service of God and their country more than their own
interest, will not conclude that my interest was the chief
motive that made me resume so heavy a burden in my
present circumstances ; and it is known to many of eminent
quality that while Sir George Lockhart lived, I would
neither desire nor accept of this charge, nor had I any
doubt but that the king would have provided me as well as
by it. Nor did I ever hear that any number of those who
were for a change did propose a person which were fitted
and would be commonly acceptable in my place.

EDINBURGH, printed in the year 1690.



Unto His Grace, William Duke of Hamilton, their Ma-
jesties High Commissioner, and the Honourable Estates
of Parliament,

of the Session (1693).

My Lord Stair being President of the Session for life, he
and other lords of the Session were turned out by granting
a new commission anno 1681, which was an unprecedented
practice in this nation; but since that time the lords of
Session were obliged to accept new commissions during
pleasure, and some of them turned out of their offices for
disposing others to comply.

When the Claim of Right was framed at this happy Re-
volution, one of the former practices condemned as illegal
was the changing of judges' gifts ad vitam aut ctilpam into
commissions ad bene placitum.

My Lord Stair, being illegally turned out, was reponed
to his office of President of the Session by his Majesty's
nomination' of the lords, and hath his pension secured to
him by his Majesty during all the days of his natural life
which letter of pension bears expressly that he was removed
from his place of constant President without order of law
or pretence of any cause, and that immediately after the
parliament 1681, wherein he appeared zealous for the pre-
servation of the Protestant religion.


There arc now two Acts framed to be presented to the
parliament both calculating to annul my Lord Stair's
office, and so framed as to look backward, contrary to the
nature of all statutory laws.

The one provides that no peer or lord of parliament
shall bruik or enjoy the office of an ordinary lord of
Session, and that his admission thereto shall be void and
null ; and that the creating any of the ordinary lords a peer
doth and shall ipso facto render him incapable. The other
Act doth declare that their Majesties may now and here-
after nominate or appoint one or more of the lords of
Session to precede therein, and that for such time and space
and by such courses and turns as they in their royal wisdom
shall think fit, any law or custom to the contrary notwith-

(i.) Neither of these Acts are proposed by their Majesties'
High Commissioner, and so it is not to be presumed that
his Majesty doth desire any further interest or prerogative
in the naming or changing of the president of the Session
than what his Majesty and his royal predecessors have

My Lord Stair hath that confidence in and evidence
of his Majesty's bounty to him, that he would not in the
least grudge to depend upon his Majesty's pleasure, if that
had been proposed or desired by the king : But seeing both
Acts are framed by a committee, wherein several members
are known to own a personal pique and prospect to affront
my Lord Stair, he doth desire, in the first place, that the
said articles in the Claim of Right be considered, which was
framed for the security of property by asserting the right
of the judges during life: And albeit this nation be suffi-
ciently secured against all arbitrary courses by the unparal-
lelled justice and equality of his Majesty's disposition, yet
this Act is designed as a perpetual law, and in succeeding
reigns may be used as a mean to overawe such ambulatory

(2.) The said Acts are contrary to the institution of the


College of Justice, which does appoint one president, and,
in his absence, a vice-president, to be named by the king,
and how far the alteration of any part of that constitution
will be acceptable to his Majesty is best known to his High

(3.) As to both these Acts, if there were any expediency,
yet, my Lord Stair's office being his proper right during
life, they ought only to take effect when the office shall be
legally vacant, and ought not to run back, seeing all laws
do naturally look forward ; and it is specially provided that
laws shall only look ad futura, Ja. VI., Part. 10, cap. 19;
Ja. VI., ParL 13, cap. 186. And if it were not so, no man
living could be secure of any right, which can only be given
and taken according to the law standing for the time.

(4.) Though the one Act seems to give the king a pre-
rogative of making the lords ambulatory, yet the other is
an express straitening of the king's power, that he may
not nobilitate such as have been constant and faithful ser-
vants to the Crown, which was practised frequently by his
Majesty's predecessors ever since the institution of the
College of Justice ; and it is undeniable that, in the reigns
of King James V. and Queen Mary, before the Reformation,
the bishops of Orkney, Ross, Dumblain, Galloway, Brechin,
the abbots of Cambuskenneth, Dunfermling, Newbottle,
and many others who were peers and lords of parliament
were presidents and ordinary lords of Session ; as also my
Lord Fyvie was nobilitate when president, and afterwards
was Chancellor Seton and Earl of Dunfermling ; and like-
wise the Lord Balmerinoch, who succeded as president, was
nobilitate while he was lord of the Session, and continued in
the office of president till 1608. And both the Lord Fyvie,
president of the Session, and the Lord Balmerinoch were
Commissioners for the Union in the Act of parliament
1604. As also the Lord Drumcairn, one of the lords of
Session, was created Lord Binnie, between the years 1612
and 1617, and president of the Session the year 1616, hav-
ing succeeded to President Prestoun, and continued pre-


sident till the year 1626, and is a signer of the Act of
Scdcrunt ancnt the Clerks, anno 1621, by the designation
of the Earl of Melross ; as also the Viscount Laudcrdalc,
afterwards Earl, and the Lord Carncgy are both signers of
the said Act of Sederunt, and were ordinary lords of the
session. Likeas the Lords Holyroodhouse and Napier,
while lords of the Session, were created peers ; as also the
Lords Halkertoun, Nairn, and Viscount of Tarbct were all
nobilitate when on the Session, and did continue thereafter
in their offices ; and whatever inconveniency may be by
introducing such as are born peers, and whose education is
not presumed to be fit for that charge, yet these who have
passed all the degrees, and have become eminent in their
employment as lawyers or judges, ought not to be incapa-
citate from enjoying these titles and dignities which the
king may dispose of to any of his lieges he pleases.

And lastly, it would be thought strange that a statute
should be made to have effect before it was made, by
evacuating a place fully secured by the law, and in pre-
judice of a person who had served the nation in law from
the year 1647 till this time, except when he was extruded
without cause, and who hath done more to make the laws
and customs of this nation plain to all judicious persons
than any man before him ever did. The world would
wonder at the ingratitude of the nation, if they should en-
deavour to stain his reputation who hath left such evidence
of his care and faithfulness to them in his writings, that will
outlive the malice and piques of his adversaries. What
greater evidence of integrity can be shown than that, when
he was in exile seven years, never person made the least
complaint against him, when it would have been most
acceptable to those in power at that time ?



Sir David Dalrymple, Lord Hailes, only son of Sir James
Dalrymple of Hailes, by Lady Christian Hamilton, daughter
of the sixth Earl of Haddington, received his classical edu-
cation at Eton, and from thence went to Utrecht, where he
studied civil law as a preparation for the Scottish bar. He
was admitted advocate in 1748. He never attained to much
practice or distinction in his profession, although a thoroughly
grounded lawyer, and had sufficient leisure to pursue those
literary and antiquarian researches in which he most de-
lighted. His knowledge of law, acuteness, application, and
character for probity recommended him for elevation to the
bench, albeit without extensive practice or the possession of
the more captivating qualities of a public speaker, and he
became a judge of the Court of Session, as Lord Hailes, in
1766, and, ten years afterwards, a lord of Justiciary. As a
judge, he obtained and merited the confidence and appro-
bation of his countrymen.

The literary character and pursuits of Lord Hailes led
him to an acquaintance and intercourse with most of the
learned and accomplished men of his time. Such were
Bishop Warburton, Dr Johnson, Dr Percy, Thomas War-
ton, Dr Birch, Bishop Hurd, and Horace Walpole. He
made occasional visits in vacation time to London ; and the
notices of him, and of his ' Annals of Scotland/ which occur
in Boswell's ' Life of Johnson/ demonstrate the estimation in
which he was held, not only by the great moralist but by
the social and literary circles of the metropolis generally.

The subjects of Lord Hailes's investigations are referable
almost exclusively to two distinct classes the one con-
nected with the history and literary antiquities of Scotland,
and the other with the earlier state of the Christian'Church.
His three most important works were the following : i.
'Additional Case of Elizabeth, claiming the Title and
Dignity of Countess of Sutherland/ Edinburgh, 17/0. This


Paper was prepared for the House of Lords by Lord
Hailcs, as one of the guardians of Lady Elizabeth, infant
daughter of the last Earl of Sutherland, in the disputed case
of succession to the Sutherland peerage ; the names of two
of her ladyship's counsel (Alexander Wedderburn and
Adam Fcrgusson) being prefixed to the volume. Lord
Hailes is considered to have displayed in this composition
the greatest accuracy of research in regard to the family
history of the Scottish nobility and the rules of descent in
Scotland, treating the question at issue with such dexterity
of argument as not only clearly to establish the right of his
pupil, but also to form a precedent for the decision of all
such questions of succession in future. 2. The 'Annals of
Scotland,' Edinburgh, 1776 a work well known and highly
appreciated for its accuracy and exactness of dates. 3. 'An
Inquiry into the Secondary Causes which Mr Gibbon has
assigned for the rapid progress of Christianity,' Edinburgh,
1786. 4to.

A copious list is given by Mr David Laing (Encyc. Brit,
vii. 603) of Lord Hailes's various publications, amounting to
nearly fifty. He died in 1792, in the 66th year of his age,
having been twice married, and leaving two daughters ;

from the youngest of whom, married to Fergusson of

Kilkerran, Mr C. Fergusson Dalrymple, M.F., his represen-
tative in the estate of Hailcs, is descended.

Communicated by Charles Elphinstonc Dalrymple, Esq.

It may be mentioned, with reference to the Arms borne
by the Lords Stair, that the first Viscount, and his son and
successor the first Earl of Stair, used as supporters two
Storks proper, assumed probably by the former in grateful
recognition of the asylum which he found in Holland (where
the stork has long been a favourite bird), when forced to
exile himself. His grandson, John, the second Earl, adopted



Lions in their place, probably in consequence of the dis-
covery by Nisbet of the seal of a " Jacobus Dalrumpyl " of
date 1402 (engraved in Nisbet's Heraldry), which shewed
lions as supporters, and which his successors in the title
have continued to use.

The two first Lords bore as their motto the word
" Quiescam " placed over their crest, which was a Rock
proper. It is not known whether this was their hereditary
bearing, or a fresh assumption by the Lord President Stair,
when raised to the peerage, meant to be typical of the part
he seems to have aimed at in his public career, to which
it appears not inapplicable. The second Earl, however,
exchanged their motto for the word "Firme," which has
ever since been used by the various branches of his family.



VOL, I. 2 A



ADVOCATE. (HowelVs State Trials, viii. 931.)

"SIR JOHN DALRYMPLE replies for the pannel, That since the
solid grounds of law adduced in the defences have received
no particular answers in relation to the common consent of
all casuists, viz., that a party who takes an oath is bound in
conscience to clear and propose the terms and sense in which
he does understand the oath ; nor in relation to the several
grounds adduced concerning the legal and rational inter-
pretation of dubious clauses : And since these have received
no answers, the grounds are not to be repeated, but the pro-
curators for the pannel do farther insist on these defences :
It is not alleged that any explanation was given in by
the pannel to any person, or any copy spread, before the
pannel did take the Test in council, so that it cannot be
pretended that the many scruples that have been moved
concerning the test did arise from the pannel's explication ;
but on the contrary, all the objections that are answered
and obviated in the pannel's explication were not only pri-
vately muttered, or were the thoughts of single or illiterate


persons, but they were the difficulties proposed by synods
and presbyteries long before the panncl came from home
or was required to take the test ; so that the general terms
of the Acts of Parliament founded upon in the libel are not
applicable to this case ; for as these laws in relation to
Lcasing-makers are only relative to atrocious wilful insinua-
tions or misconstructions of his Majesty's person or govern-
ment, or the open depraving of his laws, so the restrictive
clause whereby sedition or misconstructions may be moved,
raised or engendered betwixt his Majesty and his lieges,
cannot be applied to this case where all these apprehensions
and scruples were on foot and agitated long before the pan-
nel's explanation.

As it cannot be pretended that any new dust was raised
by the pannel's explanation, so it is positively offered to be
proved that there is not one word contained in this expla-
nation but that either these individual words or much worse
had been publicly proposed and verbatim read in Council
without the least discouragement or the least objection
made by any member of the council. And where a writing
ex proposito read in so high a court was universally agreed
upon, without the alteration of a syllable, how can it be
pretended that any person thereafter using the said indivi-
dual terms in any explanation, and for easier terms, shall
incur the high and infamous crimes libelled ? And the
question is not here whether the council was a proper judi-
cature to have proposed or imposed a sense, or allowed any
explanation of the test to be published, but that it is im-
possible that a sense they allowed on being publicly read
before them, and which the king's Advocate did not controul,
should import treason or any crime ; and though the pan-
nel's advocate will not pursue or follow the reply that has
been made to this point, yet certainly no man of sober sense
will think that it is fit to insinuate that so high a judicature
might have authorised or acquiesced in such explanations
as the lieges thereafter should be entrapped to have used.
If the pannel had officiously or ultroneously offered a


sense or explanation of his Majesty's laws which the laws
themselves could not have borne, it might justly have been
alleged that he was extra ordincm and meddling in a matter
he was not concerned in ; but where the act of council did
enjoin and he was required and cited to that effect, it could
neither be construed as ostentation or to move or encourage
scruples or resistance, but it was absolutely necessary either
to have refused the test or else to have declared what he
thought the true and genuine meaning of it. And there
being so many objections publicly moved and known, his
explanation was nothing else but to clear, that he did not
look upon these scruples and objections moved by others
as well founded and rational in themselves ; and therefore
he was able to take the test in that sense the council had
heard or allowed. And it is not controverted that the sense
of the legislator is the genuine sense both of laws and
oaths, and if a person were only interpreting the meaning
of either a law or an oath imposed he should deprave or
misconstrue the law and oath, if he rendered it wittingly
and willingly in terms inconsistent with the meaning of the
imposer : but there is a great difference betwixt taking
of oaths and interpreting oaths ; for when a man comes to
take an oath, except his particular sense did agree with the
genuine meaning of the imposer, he cannot take that oath,
though he may very well interpret and declare what is the
sense of the legislator, while he may know and yet perhaps
not be able to take the oath.

And therefore when there is any doubtfulness in an oath,
and a party is bound to take it, if then he gives in an expli-
cation of the sense which he in his private judgment doth
apprehend to be the genuine meaning, if that private sense
be disconform to the legislator's sense in the oath, then the
imposer of the oath or he that has power to offer it to the
party, if he consider the party's sense disconform, ought
to reject the oath as not fulfilling the intent of the law
imposing it.

But it is impossible to state that as a crime, that a party


should neither believe what is proposed in the oath nor be
able to take it, and he can run no further hazard but the
penalty imposed upon the refuser. And therefore in all
oaths there must be a concourse both of the sense imposed
by authority and of the private sense, judgment, or con-
science of the party. And therefore if a party should take
an oath in the sense proposed by authority contrary to his
own sense, he were perjured ; hereby it is evident that the
sense of authority is not sufficient without the acquiescence
and consent of the private person. . . .

And as to that part of the [prosecutor's] reply that ex-
plains the treason, there can be no treason in the pannel's
case, because the express Act of Parliament founded on
doth relate only to the constitution of the parliament ; and
I am sure his Majesty's Advocate cannot subsume in these
terms, and therefore in the reply he recurs to the general
grounds of law that the usurping of his Majesty's authority
in making a part of the law, and to make alterations in
general and without the king, are high and treasonable
words or designs, and such as the party pleases, and such
designs as have been practised in the late times. And
that even the adjective of fair and safe words, as in the
Covenant, does not secure from treasonable designs, and
that it was so found in Balmerino's case, though it bear a
fair narrative of an humble supplication.

It is replied, that the usurpation of making of laws is
undoubtedly treasonable, but no such thing can be pre-
tended or subsumed in this case ; for albeit the pannel de-
clares his explanation to be a part of his oath, yet he never
meant to impose it as a part of the law, or that this expla-
nation should be a thing distinct, or a separate part even of
his oath, for his explanation being exegetic of the several
parts of the oath, it is no distinct thing from the oath, but
declared to be a part of the oath dc natura rri. And it was
never pretended that he that alleged anything to be de
natura rci did say that that was distinct and separate,
which were a contradiction. And therefore the argument


is retorted, the pannel having declared this explanation
was, de natura rei, implied in the oath, he necessarily made
this explanation no addition or extension of the oath. So
that, for all this explanation, the oath is neither broader nor
longer than it was.

And as to these words : ' I do not mean to bind up my-
self in my station and in a lawful way to wish and endea-
vour any alteration I think to the advantage of Church or
State not repugnant to the Protestant religion and my
loyalty ; ' it is a strange thing how this clause can be drawn

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Online LibraryJohn Murray GrahamAnnals and correspondence of the viscount and the first and second earls of Stair; (Volume 1) → online text (page 26 of 28)