John Murray Graham.

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

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had been one of the commission sent to invite Charles
to Scotland upon the execution of his father. He
was graciously received at Court, and knighted by
the king. He had two friends there, both remark-
able men Monck, now Duke of Albemarle, and the
Earl of Lauderdale, once a Covenanter, and now,
after years of strange vicissitudes, Secretary of State
for Scotland. We may suppose that it was partly on
Lauderdale's recommendation, and partly from the
king's remembrance of him in his own days of
adversity (though the royal memory in such matters
was proverbially short) that Sir James Dalrymple
was included in the first commission of Scottish
judges. In accordance with the custom of Scotland,
VOL. i. B


at a time when the judges of the Court of Session
were almost always men of landed property, he took
the title of Lord Stair, from his estate. He was
invited, both then and on subsequent occasions, to
become a judge in the criminal or Justiciary Court,
from which, however, he resolutely excused himself,
alleging as his reason the danger of acquitting the
guilty or wounding the innocent in such matters.*
In about a year after, he was named by the royal
commissioner (Middleton) vice - president of the
Session, in the absence of the president, Sir John
Gilmour, which appointment was formally approved
by the other judges ; and he acted in that capacity
whenever the president was absent from court.t

The annoyance to which Stair was exposed in the
course of the reign of Charles II. from tests and de-
clarations, harassing to men of principle and utterly
useless to bind men of no principle, very soon com-
menced. In the third year of the Restoration, Epis-
copacy was formally re-established.^ While Lauder-

* Apology ; Forbes' s Journal. Lord Macau lay (England, chap, xvi.)
when accounting for the rigid Covenanters and Presbyterian non-jurors
keeping aloof from the government of William III. says of Stair and
his son Sir John Dalrymple : " The younger Dalrymple who had pro-
secuted the saints, the elder Dalrymple who had sat in judgment on
the saints, were great and powerful." Now the fact is that Sir James
Dalrymple, Lord Stair, at no period of his life sat in judgment in a
criminal proceeding. As a member afterwards of the Privy Council,
he constantly advised lenient measures, and could not be said to have
there sat in judgment on the saints.

t Brunton and Haig's College of Justice; Books of Sederunt.

J The re-establishment of Episcopacy, to which Stair was opposed,
was mainly due to the king, encouraged to it by his English counsellors,
and by his Scottish Commissioner, the Earl of Middleton. At a meeting
in London of the Scottish Privy Council, called to discuss the question
of church government, a short time before the sitting of the Parliament
in May 1662, the Earl of Crawford, and Lord Lnudordale, Secretary


dale at once sacrificed his own opinion in favour of
Presbytery to the royal pleasure, unavailing remon-
strances were made by Bruce, Earl of Kincardine,
the Earl of Crawford, and others ; but so decided was
then the influence of Government in the Scottish Par-
liament, that the Act for restoring Episcopacy was
carried without the least difficulty at the very com-
mencement of the session of 1662."'' By way of for-
tifying the Episcopal establishment, another Act was
immediately passed, ordaining the following declara-
tion to be taken by all persons in public trust :

"I, , do sincerely affirm and declare that I
judge it unlawful to subjects, upon pretence of re-

for Scotland, with several other members of Council, were in favour
of summoning assemblies of the clergy and lay elders in order to be
better satisfied as to the inclinations of the people. Upon Middleton
proposing in the Council the change to Episcopacy, in which he was
supported by Lords Glencairn and Rothes, Lauderdale answered that
this motion was of greater importance than that it could be seriously
determined without many thoughts and much information, for upon a
resolution in this depended the quiet of this kingdom, which was very
unmanageable in matters of religion ; and he therefore proposed that
his Majesty might either call a General Assembly or consult the pro-
vincial assemblies of each county, which, because they consisted of
ministers and lay elders, would acquaint his Majesty with the inclina-
tions of his subjects. After an unsatisfactory debate, the king closed
the meeting, telling them he perceived that most voices in the Council
were for Episcopacy, and therefore he resolved to settle it with all dili-
gence. Sir G. Mackenzie's Memoirs of Scotland, p. 52-56 ; Letter of
Lord Lauderdale in the Almack Collection of MSS., referred to in First
Report of the Historical MSS. Commission, p. 55.

* Three of the persons most prominent in the formal re-establish-
ment of Episcopacy, and in the stringent and impolitic measures after-
wards had recourse to for maintaining it in the recusant districts
(chiefly the southern and western shires) have been celebrated by Sir
Walter Scott in his novel of ' Redgauntlet.' Amongst the weird revellers
described in "Wandering Willie's Tale" as seated round the table of
the old oak parlour in the phantom castle of Redgauntlet, the " fierce
Middleton," the "dissolute Rothes," and the "crafty Lauderdale," are


formation, or other pretence whatsoever, to enter into
leagues and covenants, or to take up arms against
the king or those commissionated by him ; and that
all these gatherings, convocations, petitions, protesta-
tions, and erecting and keeping of council tables that
were used in the beginning and for carrying on of
the late troubles, were unlawful and seditious. And
particularly that these oaths, whereof the one was
commonly called ' The National Covenant ' (as it was
sworn and explained in the year 1638, and thereafter),
and the other entituled ' A Solemn League and Cove-
nant,' were, and are, in themselves unlawful oaths,
and were taken by and imposed upon the subjects of
this kingdom against the fundamental laws and liber-
ties of the same : And that there lyeth no obligation
upon me or any of the subjects from the said oaths,
or either of them, to endeavour any change or altera-
tion of the government, either in Church or State,
as it is now established by the laws of the kingdom."
The great design of this Act, according to Sir
George Mackenzie, was to incapacitate the Earl of
Crawford, a staunch Presbyterian, from being Trea-
surer, and the Earl of Lauderdale (who, from his
antecedents and former zeal for the Covenants, was
considered favourable to Presbytery) from being Sec-
retary for Scotland ; " but Lauderdale laughed at this
contrivance, and told them he would sign a cartfull of
such oaths before he would lose his place." Lander-
dale accordingly swallowed the Declaration, and re-
tained his place ; while Middleton, the contriver of the
oath, had the satisfaction of turning out Crawford, who
refused the Declaration, from his office of Treasurer.

* Memoirs of the Affairs of Scotland.


Upon this trying occasion, Stair, taking into view,
as we must suppose, the previous tenor of his life,
and his covenanting professions, made a stand against
the Declaration, and addressed to the less scrupulous

Lauderdale the following letter, in which he care-

fully sets forth his loyal sentiments, while, at the
same time, he cannot see his way to signing the
oath :

Lord Secretary of Scotland.

" HAMILTON, August 4, 1663.*

" MY LORD, It was very bad fortune to miss your
Lordship this day at Hamilton, though I rode for it
with all the haste I could, after I got notice of your
coming west. Being uncertain of the time of your
abode in this country, I could not forbear to give you
the trouble of this line, to signify that there is nobody
more sincerely and affectionately your servant than
myself, or more sensible of the undeserved favours
you have done me ; nor shall I ever be so ungrateful
as not to serve you to my outmost power in whatever
station I shall be. It is like my unclearness in the
Declaration to be enjoined to those in publick trust may
leave me less opportunity, but never less readiness ;
and lest it might be apprehended that my hesitation
is from evil principles in myself, or from the opinions
of others from whom I would not differ, I shall
unfold the inwards of my soul to your Lordship in
both these, as in the sight of Him who only searcheth
hearts. I am clear that in the King's Majesty's race

* This is the first of a series of autograph letters of Lord Stair in
the possession of David Laing, Esq., none of which have been hitherto


and royal government is unseparably wrapt up the
wellbeing of this kingdom, not only alike with but
more than his other kingdoms ; which, being so
weighty in the balance of interest, would in all things
preponderate us, if the balance were not holden by
that royal hand, whose justice and special interest
in and affection to this poor nation doth not admit
of inequality, not only reason, but experience, in all
revolutions, how fair soever the pretences were, hath
made palpable. I am also clear that it is the basis
of government that private opinion must yield to pub-
lick, and that without force and resistance to authority ;
the very antithesis of government being that parties
do not submit to a common judge or authority, but
wrasle out their opinions and interests by force. I
am clear that all actings out of the channel of law are
irregular ; and though there be not actual force, yet
they are unlawful and seditious, and that no engage-
ment, covenant, or oath, can justify them. I do also
with like solemnitie affirm that, in this matter, I stick
not upon the opinion, pleasure, or satisfaction of any
party or person under heaven, whom I shall never
put in balance with my duty and desire to serve my
most gracious soverayne in a publick station, without
respect to honor or profit, but to do his royal pleasure,
to whom I am not only nationally, as a subject, but
singularly and signally obliged by his Majesty's con-
stant good opinion of me, and his royal benignity and
clemency to me. God is my witness there is no-
thing holds me but my conscience being unclear as to
that Declaration, as it is conceived. I crave your
Lordship's humble pardon for my diverting you from
more weighty affairs with this rude but real freedom


exprest in haste, after I had ridden night and day to
kiss your hands, and to say that indeed I am, my
Lord, your Lordship's most humble and affectionate
servant, JA. DALRYMPLE."

It must be admitted that in this epistle there is a
certain amount of special pleading, and a greater ex-
pression of devotion to Lord Lauderdale than perhaps
the occasion required. But Lord Stair considered
himself mainly indebted to Lauderdale for his judge-
ship, and (notwithstanding his stickling about the
Declaration) was probably not unwilling to remain
upon good terms with the powerful minister for Scot-
land. In the course of a month he writes again,
suggesting that Lord Lauderdale should sound the
king as to his (Lord Stair's) waiting upon his Ma-
jesty in London, and personally explaining himself
on the subject of the Declaration :

" STAIR, Sept. 1663.

" MY LORD, I was told by a friend that it was
thought very expedient for me to wait upon his
Majesty anent the Declaration, that what I desired
might be obtained more easily, and done more
privately without being exemplary. I am not a little
obliged to those who were pleased to notice me so far
in my absence. I hope I shall not forget so great
kindness. I could return no positive answer when it
was told me ; but having since time to think upon it,
it is my humble opinion that it were necessar some-
thing were moved to his Majesty : first, that if such
a thing be attainable, and no other wayes than by
doing it there, I might go to do it ; but to go upon


uncertainty might make these who would be unwill-
ing (either out of prejudice to persons, or that any
such preparative might be) be on their guard to
oppose it ; and besydes, I am bold to believe your
Lordship is that tender of me that you would not load
me with more inconvenience. If that should miss
by an application, how much more might it offend
if I did abide by my former resolution not to go
further, and what reproach it would leave on me as
hunting after publick employment, which, if it were
not to serve God, the king, and my country, would
not be of any interest to me, who am so desirous of
quiet, and to live without observation ! I do not
resolve to go so much as to Edinburgh until I know,
after your Lordship's return to London, what you
will command." *

The Declaration was signed by the president of the
Session, Sir John Gilmour of Craigmillar, and by all
the other judges except Lords Stair and Arniston
(Dundas).t At the time it was tendered to the
judges, in the beginning of the year 1664, Lord
Stair was in Ayrshire attending his mother's funeral.
He remained in the country at this critical juncture,
living in retirement at his house of Stair. J While

* Laing MSS.

t In a letter from Lady Margaret Kennedy to Lauderdale, dated
the last day of December 1663, her Ladyship writes : " I am very sorry
Stair and Arniston are not indulged, not most for them, but because the
grounds laid down to dissatisfy are still kept, though the intentions are
wholly changed ; yet the way being kept, the effect follows, that is
discontent. I doubt Stair's place will not be easily filled, though it
may be soon enough." Letters of Lady Margaret Kennedy, Bannatync

J Apology for Sir James Dalrymple.


residing there, he had a letter addressed to him by
the president of the Session, dated the 5th of Febru-
ary, communicating the king's order to the Privy
Council to declare vacant the places of all persons in
office failing to subscribe the Declaration by a certain
day, and to allow no written explanation to be re-
ceived. The answer of Lord Stair is preserved in
the Court of Session records, and is of the following
tenor :

"AYR, Feb. 15, 1664.

" MY LORD, Your Lordship's of the 5th inst. I
received this day, showing that his Majesty, by his
letter under his royal hand of igth December last,
had required your Lordships to appoint a short day
in which the absent lords of Session might either
subscribe the Declaration or refuse it, to the end his
Majesty might take care for supplying the place of
such as should refuse ; and therefore that your Lord-
ships had assigned the iQth of this instant for me
to give my answer thereanent. My Lord, I have
already, before the date of his Majesty's letter, sent
up to London a resignation of my place in the Session
in his Majesty's royal hands, whereby I hope your
Lordship and the rest of the lords will be satisfied
that I need not come to give any further answer to
your Lordship's letter. I shall not cease, while I
breathe, to be faithful to his Majesty, and to do him
all the service I can, in whatever station I be in,
and shall be ready to do what service I can to your
Lordships and that honourable House [the Court of
Session], which I so much love and honour, as you
shall be pleased to command."


Upon receipt of this letter in Edinburgh, a warrant
was despatched to London for the king's signature to
have Lord Stair's place of judge vacated. Charles
was not disposed, however, on this occasion to be so
easily quit of his acquaintance of former years, and
a royal message was sent to Sir James Dalrymple to
wait upon the king in London.* In obedience to
this message, in all likelihood suggested by Latider-
dale, Stair, accompanied by his eldest son, left home,
with the intention also of making a short visit to the
Continent, and arrived in London in April. What
passed upon his arrival is mentioned in the following
letter to Lord Arniston from his cousin, Sir Alex-
ander Hume :

"WESTMINSTER, April l6, 1664. t

" MY LORD, I suppose that, knowing of my Lord
Stair's being here, you may expect to receive some
account of his proceedings, which he was purposed
himself to have given you by this post, but that he
is invited this night to my Lord Lauderdale's country
house at Highgate, some four miles out of town, from
whence they are to return on Monday next. Before
his going out he was with me, and told me he had
this morning a large conference with the king being
the first time he saw him to whom he made an in-
genuous declaration of the motives that induced him
to make scruple of the subscription required of all in
public trust, which he assured his Majesty did not
proceed from any want of loyalty. The particulars
he had not time to tell me ; only in general he said
the king was very civil to him, and told him he would

* Apology. t Autograph letter from the Arniston collection.


be very sorry that he should desert his service. So
at that time there was no conclusion made, but he is
not without hope that the result may be such as he
may keep his station, whereof he may be able, after
full communication with my Lord Lauderdale, to give
you a particular account by the next post, that you may
also resolve what is fit for you to do. For, seeing
you both agree, as well in sincere principles of loyalty
as in scruples of conscience, it is reasonable to ex-
pect your affairs may have the like event, wherein
my Lord Stair and I will take the best care we can
that your absence shall not prejudice you, and my
Lord Lauderdale hath also promised his best offices.
Perchance it may be necessary that you be at the
pains of coming hither, for which, at all adventures,
I would have you prepare yourself, though I shall
rather wish you may avoid the journey unless it be
absolutely necessary."

Lord Stair received an audience of the king,
who plainly intimated to him that his resignation
was not to be accepted, and that he might give a
verbal explanation in what sense he could sign
the Declaration. The method suggested by Stair
of a verbal explanation which he was himself to
receive back in writing from the judge or clerk who
tendered the oath to him satisfied Charles, from
whom a letter to the president of the Session was
immediately despatched in the following terms : *
" Having heard Sir James Dalrymple of Stair clear
himself in the matter of the Declaration (which he at

* April 19, 1664 ; Books of Sederunt, quoted in Brunton and Haig's
College of Justice.


his return will take), and being well satisfied there-
with, and with his good affection to our service, and
with his great abilities to serve in that station, We
did not think fit to accept of the warrant formerly
sent up for demitting his place, of which demission
no use has been made. Therefore our pleasure is
that he, signing the said Declaration, continue."

On the 2Oth of April Stair left London for Paris
with his son, remaining there till near the end of
May. Returning by London, he made a second visit
of two days to Lord Lauderdale at Highgate, where
he had a final conference as to the matter in question,
and then left for Edinburgh. On arriving there he
signed the Declaration, with the verbal qualification
that " he was content to declare against whatever was
opposite to his Majesty's just right and prerogative."
This qualification was returned to Lord Stair in writ-
ing, probably by the clerk of court who tendered the
oath.* Upon which the president and lords of
Session " reponed him " in his office, although, in
fact, from his resignation not having been accepted,
nor the warrant for demission of his place signed
or acted upon, it had never been formally vacated.
The king further manifested his favour for Stair
upon this occasion by conferring on him a baronetcy.

* See Lord Stair's letters to Lord Arniston (in the next chapter) of
April 19 and May 28, 1664.



Lord Arniston deprived of his judgcsliip on refusing to sign the Decla-
ration as to the Covenants without a written explanation adjected
to his subscription Letters of Stair and of Arniston upon this
occasion Letter of Lauderdale to the latter, and his answer Was
Lord Arniston over-scrupulous or Lord Stair too easy in their
respective views of the difficulty ?

Now that Lord Stair is again seated upon the bench,
with satisfaction to his conscience and to the pro-
fession generally, it will be proper to observe what
befell his brother judge, Sir James Dundas, Lord
Arniston, who, from his Presbyterian opinions and
antecedents, was, upon the first motion as to taking
the Declaration, exactly in the same predicament
with Stair. The fact that Lord Arniston refused to
subscribe the required oath, as he was not permitted
to qualify it in writing, is well known ; but the letters
which follow, from Lord Stair (preserved in the
Arniston Correspondence), mark very well the diffi-
culty of the situation and the relative circumstances. *

Lord Stair to Lord Amis ton.

"EDINBURGH, Sept. 12, 1663.

" MY LORD, Since I saw you I have spoken at
large with my Lord Commissioner [Rothes] and my

* These letters are autograph of Lord Stair, and have not been
hitherto printed.


Lord Secretary (Lauderdale), and I believe they are
as desirous to favour us as we can wish. I have
shown that explanation I am free to sign the Decla-
ration with. None can say it should, or in that sort
doth, comprehend more. If after they see the king
anything may be done, it will be signified to us.
What you understand further from time to time,
pray you let me hear it from you by a line. This
Wednesday's weekly post will carry it, so that you
need not want occasion. Remember my service to
that noble gentleman, your friend, Sir Alexander
Hume, and to your good lady. So rest your
Lordship's reall friend and servant,


"EDINBURGH,^//. 12, 1663.

" Since my last of this day's date, upon the second
thoughts of some of our eminent friends, it is desired
that we should go up to London (though on pretence
of other affairs), which they do conclude as very
little dubious to attain our design. I durst on the
sudden say nothing to it, but I am to think upon it.
It was your motion before; but there is none of us
can supply for the other there, seeing our only way
is expected to be that we have given his Majesty
satisfaction. I lay it before you that you may think
upon it, and, if you wish, put yourself in readiness,
and be there with your friends. It is the greater
encouragement for us that none of our great men,
though discording in other things, will differ in this,
that we be looked out in such a matter. If I had no
more difficulties than you, I would do it ; but my
poor wife is near her lying. That will so retard me


as that time would hardly suffer for me to go and
return in time. You will, by the Ayr post, com-
municate your thoughts and purposes."

"STAIR, Sept. 21, 1663.

" Yours of the i6th instant I received. You have
considered aright of these two friends who were
thinking upon our concernment. I am fully of your
mind that there is nothing to be done till they go up,
and that then the easiest and securest way for us
were that our business were moved there, and we
both called (if need were) thither, to do what was
necessar. Only a man is a lion in his own cause,
and will keep it afoot till there be some issue. I
leave that to your prudent consideration ; but truly
I am not in any freedom to leave this place till I
know what becomes of my wife, who, besides the
hazard of childbirth, is very unwell, and in great
hazard otherways. I know you are a kinder hus-
band than to think that can be dispensed with ; but
my opinion would be, that without any noise of going
till some time after our great ones are up, and might
give an accompt of public affairs, yourself went up.
You have not yet seen the king since he came home,
and ofttimes the [winter] uses to be as good weather
as any in the year. I should be heartily glad you
were restored, whatever comes of me ; and I am
sure you might be helpful to both, whatever you do.
Let the medium thought upon be as little known as
possible, lest those who will be against it, more for
the example of it than for our interest, prevent it.

Online LibraryJohn Murray GrahamAnnals and correspondence of the viscount and the first and second earls of Stair; (Volume 1) → online text (page 3 of 28)