John Murray Graham.

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

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A virtuous lady, not long since a bride,
Was to an hopeful plant by marriage ty'd,
And brought home hither. We did all rejoyce
Even for her sake. But presently our voice
Was turned to mourning for that little time
That she'd enjoy ; she waned in her prime,
For Atropos with her impartial knife
Soon cut her thread, and therewithal her life.
And for the time, we may it well remember,
It being in unfortunate September.



1669.] VISCOUNT STAIR. 47

Just at the equinox ; she was cut down
I' the harvest, and this day she's to be sown :*
Where we must leave her till the resurrection,
'Tis then the Saints enjoy their full perfection."

Whatever may be thought of these lines as poetry,
they are written with feeling and delicacy of taste by
a contemporary of the parties, and who had as good
access to be acquainted with the facts as any one
excepting the bridegroom (whose intimate friend he
was) and the bride. The elegy points distinctly to
a rapid decline, occasioned by the operation of an un-
seen cause, but which may be guessed at from the
circumstance already mentioned of the lady's affec-
tions having been blighted ; while not the most distant
allusion is made to any such harrowing catastrophe as
that supposed in the ' Bride of Lammermoor ' to have
occurred on the night of the marriage. The thrilling
tradition of this event, loose and uncertain as it was,
impressed the imagination of Scott ; and the result
has been the marvellous tale of Lammermoor, which
a great living authority not long since declared to be
a composition instinct with the spirit of the Greek
tragedy.

The bridegroom Dunbar, a cultivated gentleman
of unimpeached honour, not at all resembling the
" Bucklaw" of the novel, afterwards married a daughter
of the seventh Earl of Eglintoun, and died in 1682
by a fall from his horse, t His rival, Lord Ruther-

* That is, buried.

t The only child of this second marriage became the wife of Lord
Basil Hamilton, and is ancestress of the present Earl of Selkirk, in
whose charter-chest the marriage-contract of David Dunbar and Janet
Dalrymple was discovered some years ago.



48 THE STAIR ANNALS. [1670.

ford, obtained a commission in the Household Guards,
and died in 1685.

A proposal being made in 1670 for a treaty of
union between England and Scotland, Lord Stair
was named one of the Scottish commissioners for
negotiating the treaty. The joint - commission met
frequently in London in autumn of that year, but
could bring the negotiation to no result Stair's valu-
able aid was more satisfactorily given at this time to
the proceedings of a Royal Commission, of which he
was a leading member, for regulating the Scottish
judicatories, and correcting abuses in the order and
mode of calling processes and dispensing justice.*
The following letter of the Chancellor Rothes to
Lauderdalet refers to the proceedings of this com-
mission :

"... Our great work which makes a bustle now
is our vigorous prosecuting his Majesty's commission
for regulating judicatories. At the first meeting I
offered up to their consideration all the privileges I
pretended to as Chancellor, such as calling and enroll-
ing [processes], and so did the President of the Ses-
sion ; but the Advocate stuck a little, yet now he has
done it. The greatest difficulty we have is to order the
fees of advocates. Many of the commission have been
advocates themselves, or their sons are ; J yet they

* This Commission was appointed in September 1669.

t Feb. 17, 1671 ; MS. letters of the Earl of Rothes, in the British
Museum.

J Lord Stair is probably here pointed at. In questions affecting the
privileges of the bar which arose during the deliberations of the com-
mission, and at other times, he almost invariably took the part of the
barristers. See Address to the Juridical Society, by the Lord Justice-
Clerk Inglis: Edinburgh, 1863.



t6 7 i.]



VISCOUNT STAIR.



49



carry pretty fair, for the point is pressed to purpose ;
and if you hear not that we order them and the
writers, you may conclude that all we have done is
not worth two pears to the poor harried country."

The labours of this commission resulted in an Act
of Parliament (1672, c. 16), new-modelling the con-
stitution of the Justiciary Court nearly to what it is at
the present day, and containing valuable regulations
for the practice of the Courts of Session, Justiciary,
and Exchequer.




Signatures of the principals to the marriage-contract of David Dunbar, younger of
Baldoon, and Janet Dalrymple, in the charter-chest of the Earl of Selkirk.



VOL. I.



1)



50 THE STAIR ANNALS. [1671.



CHAPTER VI.

Lord Stair made President of the Session and a Privy Councillor Is
in favour of lenient measures towards the Covenanters Lord Kin-
cardine Stair's sphere of action, the Civil Bench His character
as a judge Question of Appeals to Parliament Letters.

AFTER ten years' discharge of duty as an ordinary
Lord of Session, Stair was now to receive that pro-
motion to which his abilities as a lawyer very justly
entitled him. Sir John Gilmour of Craigmillar, who
had been President of the Court since the Restoration,
resigning from age and infirmity, his place was be-
stowed upon Lord Stair. Approving of this exercise
of patronage on the part of Lauderdale, still supreme
ruler of Scotland, Sir George Mackenzie, after men-
tioning the fact, continues,*" " And really Stair was a
gentleman of excellent parts, of an equal wit and uni-
versal learning ; but most considerable for being so
free from passions, that most men thought this equality
of spirit a mere hypocrisy in him. This meekness
fitted him extremely to be a president, for he thereby
received calmly all men's informations, and by it he
was capable to hear without disorder or confusion
what the advocates represented. But that which I
admired most in him was, that in ten years' intimacy

* Memoirs of the Affairs of Scotland, p. 214.



1671.] VISCOUNT STAIR. 51

t never heard him speak unkindly of those who had
injured him."

The new Lord President was, upon his promotion,
made a member of the Scottish Privy Council, a situa-
tion causing him more anxiety than his high judicial
office.""" According to the most reliable accounts, he
was not a frequent attender of the meetings of the
Council, which was at that time in the habitual exer-
cise of very arbitrary powers. When he did attend,
his advice was in favour of leniency towards the re-
cusant Covenanters, though he was not of a character
so bold and uncompromising as to signalise his oppo-
sition to measures of severity by prominent acts.
Upon more than one occasion he prevailed with
Lauderdale (now raised to a dukedom) to sanction the
adoption of certain safeguards to the accused in pro-
secutions for attending conventicles and for "church
irregularities," which made Archbishop Sharp (with
whose unrelenting energy the official zeal of Lauder-
dale and the Crown counsel could hardly keep pace)
charge the duke with overturning the national set-
tlement of Episcopacy, and putting the king's interest
further back in one month than could be retrieved in
seven years !t

It is not a little remarkable with what difficulty
the Presbyterians and Covenanters, while they de-
tested Sharp, could be brought to believe that Lau-
derdale was opposing their party and interests. He

* The original nomination by King Charles II. of Lord Stair to be
President of the Session, dated from Whitehall, 7th January 1671, and
signed by Lauderdale, is still extant in the possession of David Laing,
Esq.

t Forbes's Journal of the Session; Historical Notices, by Sir John
Lauder, Lord Fountainhall, 2 vols. 410 (Bannatyne Club).



52 THE STAIR ANNALS. [1672.

had been bred in an aversion to Episcopacy, and for
long (according to Sir George Mackenzie) the Pres-
byterians were devoted to him, and " believed that he
was advancing their interests, even when he seemed
to persecute them." The indulgent view given of this
astute minister in the " Memorialls " of the Rev.
Robert Law, a Presbyterian clergyman, is entirely
in accordance with this observation of Mackenzie : *
" April 1 674" (Mr Law chronicles), "the Duke of Lau-
derdale, his Majesty's commissioner, takes journey
from Edinburgh to London, notwithstanding any bill
of the English Parliament to the contrary, and is
graciously welcomed by the king's Majesty. Be-
fore he went, he told his noble friends he was not
afraid of any bogles by the way, it being surmised
before that some would seek his hurt by the way.
He was truly a man of a great spirit, great parts,
great wit, a most daring man, and a man of great
success, and did more without the sword than Oliver
Cromwell, the great usurper, did with it ; was a man
very national, and truly the honour of our Scots
nation for wit and parts."

In consistency with Stair's own desire for a milder
administration in the criminal court, we find him, in
the beginning of 1673, pressing upon Lauderdale the
appointment of the Earl of Kincardine to be Lord
Justice-General an office then vacant, which would
have put Kincardine at the head of the criminal or
Justiciary Court.*

* Sir G. Mackenzie's Memoirs of the Affairs of Scotland, p. 156;
Law's Memorials, p. 65.

t Lord Kincardine's character is very favourably drawn by Bishop
Rurnet, who says that " he had a noble zeal for justice, in which even
friendship could never bias him." History, i. 146.



1673-] VISCOUNT STAIR. 53

" EDINBURGH, Jan. 6, 1673.

"... I have been very free with my Lord Kin-
cardine as to his aversion to be Justice-General. It
came to be known, and was very acceptable here,
that a person of so equal and just a disposition should
be entrusted with the greatest concerns of the people,
and who, by his other employments in his Majesty's
service, doth constantly attend in session time, and is
always near, and would bring that Court [of Justi-
ciary] to a very good posture/"" I am very confident
that if your Grace insist to move him again, he will
be satisfied, and will overcome any aversion he had.
I know my Lord Hatton has moved to your Grace
for a favour to my son-in-law. It would be very con-
venient, if your Grace please. I shall be loath to be
a frequent suitor in such matters, and shall think my-
self happy enough that you allow me to be, my Lord,
your Grace's most faithful servant."!

If Lord Kincardine ever received the offer of the
place of Lord Justice-General, it was not accepted by
him. The decided voice he gave as a member of
the Privy Council in favour of moderate measures,
and of a milder course of proceeding against the
Presbyterian nonconformists, rendered him unac-
ceptable to the Primate and his friends, and at last
also to Lauderdale and the king ; and occasion was

* Lord Kincardine was at this time an Extraordinary Lord of Session.

t Laing MSS. The first part of this letter (which is not given) refers
to a business transaction in which the Lords of Session were con-
cerned, involving the purchase of the feu-duties of certain abbacies
as a profitable investment of a sum of money then in their hands.
The son-in-law for whom a favour is gently requested at the close of
the letter was probably Charles Lord Crighton, eldest surviving son of
the Earl of Dumfries, who had married Stair's third daughter, Sarah
Dalrymple.



54 THE STAIR ANNALS. [1673.

taken, a few years after the date of this letter, to turn
Kincardine, as well as the Duke of Hamilton, out of
the Council, as enemies of the Church and favourers
of conventicles.*

It must be admitted that President Stair, like most
of the public men of that day, went to a considerable
extent with the times, and gave more or less of moral
support to a Government whose action in various re-
spects he could not approve of, by continuing for ten
years in the important office he held. His best de-
fence is that he never lent himself, as others did, to be
an instrument for the oppression of his fellow-subjects,
and was never unscrupulously compliant ; and when,
during the government of the Duke of York in Scot-
land, towards the end of the reign of Charles, mat-
ters were brought to a still worse pass than they had
been, he then took up a position so conflicting with
Government as to make him extremely obnoxious to
the ruling powers, and ultimately drive him into exile.

Lord Stair's proper sphere of action was the civil
bench. On becoming president, he entered upon the
discharge of duties and functions for which his talents
and temperament peculiarly fitted him. With exem-
plary diligence he framed day by day, with his own
hand, an abbreviate of the decisions of the court as
they were pronounced. From what is known of the
assistance he gave in framing particular Acts passed
in the reign of Charles II., we may infer that his
advice and aid were taken in reference to most, if
not all of the measures for the improvement of the
law which appear in the statute-book while he was
president of the court.

* Burnet's History, ii. 158.



1673.] VISCOUNT STAIR. 55

During the ten years following his appointment he
composed the first draft of the ' Institutions of the
Law of Scotland.' This excellent work, upon which
Stair's fame as a lawyer principally rests, was origi-
nally intended for his own particular use, " that he
might the more clear and determine his judgment in
the matter of justice." *

That the law which was applied to the facts of
cases coming before his court was sound, the highest
authorities of the past and the present time equally
admit. He appears at the same time to have studied
(perhaps not always with success) to carry the opinion
of the public, as well as of the litigants, along with
him. And in those unruly times, when a suitor cast
in his cause occasionally had recourse to a pistol-shot
to avenge his want of success, it is no disparagement
to the president that he took pains to show that the
decrees of his court were well founded ; " which soft-
ening plaister" (in the quaint language of Lord Foun-
tainhall) "he uses in any other controverted interlocu-
tors, knowing that many watch for their halting." t

The combined influence of the president's authority
and his law was usually, but not always, paramount
in his court.J The insinuations of Bishop Burnet and

* Advertisement to edition 1693. In the dedication of the first edi-
tion of 1681 to the king, Lord Stair says that "his modesty did not
permit him to publish it previously, lest it should be judicially cited
where he sat."

t Historical Notices. Sir John Lauder of Fountainhall was a con-
temporary of Stair, and a judge in the Court of Session both before
and after the Revolution.

In his Memoirs of the Affairs of Scotland, Sir George Mackenzie
refers to a law process between the Scottish Chancellor (Rothes) and
Lord Melvill, in which Lauderdale's brother, Lord Hatton, then an
ordinary Lord of Session, had " owned the Chancellor publicly,"
though Lauderdale had recommended Melvill to his friends with all



$6 THE STAIR ANNALS. [1674.

others that Lord Stair was a perverter of justice in
his judicial career, rests upon no foundation of evi-
dence ; and no single instance has been alleged, and
of course none proved, of any judicial malversation
on his part as a judge.*

In the question that occurred in 1674 of allowing
appeals to Parliament from decisions of the Session,
whatever may have been his own opinion, and we
may presume it was against the right of appeal, there
seems to be no ground for inferring that he en-
couraged the harsh proceedings adopted by the Gov-
ernment and the Privy Council at the commencement
of the dispute, with the view of debarring the Scottish
advocates who were in favour of appeals from exer-
cising their functions as barristers, and banishing them
from Edinburgh and the courts of law.t Upon this
occasion a large proportion of the members of the bar,
including Sir George Lockhart, afterwards president,
and his rival, Sir George Mackenzie, " seceded " for

the latitude that custom would allow. " This process " (Sir George
continues), " also did much alienate Hatton from the president of the
Session, who found that Hatton was able to sway the Session," &c.

* Referring, in his Apology, to the judicial persecution he was
subjected to in the last years of Charles II., " No man" (Lord Stair
says) "was found to witness the least malversation or baseness by
indirect interest in any cause, by taking any bribe or reward, by par-
tiality or insolency, though nothing would have been more acceptable
to the court than, by one blow against my fortune and fame, to have
ruined me upon malversation of my trust as a judge."

In defect of substantial evidence, even the title of Stair's tract,
" Apology for Sir James Dalrymple," has been used as an argument
against him on the view, Qui s excuse accuse; but any one convers-
ant with the practice of English writers will be aware that "Apology"
is used with the signification of " defence " or " vindication," as well
as of " excuse."

t In the "Apology" Stair asserts that he was in the country in vaca-
tion time when the Privy Council's letter, which caused the secession
for upwards of a year of the principal members of the bar, was issued.



1674-] VISCOUNT STAIR. 57

a considerable time ; ultimately, however, yielding to
the Government and returning to their practice.' 5 '"

The two letters that follow from President Stair to
the Duke of Lauderdale (of an interest more local
than general) relate to these proceedings.t

To his Grace the Duke of Lauderdale.

" May it please your Grace, There is sent here-
with a letter from the Session to his Majesty, with
another to your Grace, which are so clear that I need
not give you the trouble of saying any further of the
matters therein contained. Some of our number were
not frank for letters of this strain at this time, yet did
sign them. The Chancellor was not with us when we
concluded, and would not sign. Sir George Mac-
kenzie has done himself and us all a great deal of
right, and is fully resolute against all such courses.
He knows, and could show, more of all these late
courses than any other. All your friends did assure

* In Sir George Mackenzie's Memoirs, and in Brunton and Haig's
College of Justice, voce " Sir George Lockhart," a full account is given
of these proceedings. The Mons Sacer of this secession was the town
of Haddington.

" The banishment by the Council of the greatest part of the advocates
from Edinburgh, without a process," was included in the list of griev-
ances presented by the Scottish Convention of Estates after the Revolu-
tion.' Act. Parl. Scot., ix.

This right of appeal from the Court of Session to the Scottish Parlia-
ment, although clearly competent under the Revolution Settlement, was
not much encouraged or practised prior to the Union in 1707. Ap-
peals were then introduced as a part of judicial procedure, and were
taken from Scotland to the British Parliament Reports then commenc-
ing of the adjudications in Scottish cases. This system of appeal,
though presenting startling anomalies, has been productive of great
practical benefit to the law and the courts of Scotland.

t The letters in question (Laing MSS.) are undated, but in Lord
Stair's hand, and must have been written in the end of 1674 or the
beginning of 1675.



58 THE STAIR ANNALS. [1675.

him that none [of the advocates] would be admitted
on easier terms ; and the only way to put a period to
these courses is, that on his Majesty's return a period
be set of admitting or transmitting petitions to his
Majesty some time in this session, and that they be
only admitted that are of the same terms with those
signed by Sir George and his brother Mr Colin.
The first relates to those who were excluded upon
accompt of their appeals, the other upon accompt of
withdrawing factiously from the House [Court]. Mr
Colin's was given in after his brother's, and I was
ordered to transmit it to your Grace with three other
petitions which were allowed last session ; but be-
cause these persons had signed the address to the
[Privy] Council, though they had given order to ex-
punge their names by letters to the clerks of the
Council, the Lords forbear to send them till the issue
of that address. And now his Majesty having dis-
charged the process raised upon the address, the
Lords ordered me to send them to your Grace. It
was the unanimous opinion of your friends that there
was a necessity to bring this matter to a final close
without further expectation, which keeps all these
outed advocates from coming in, and holds them busy
about other matters than their proper employments,
and keeps off people from following their suits at
law ; for they are deluded with different expectations
every post ; and therefore his Majesty's pleasure
would both be signified at the Court, that those who
are there may have notice of it, and likeways here."

" May it please your Grace, I received your
Grace's letter of the 23d inst. yesterday, expressing



1676.] VISCOUNT STAIR. 59

your signal affection to and care for the Session.
That which I did by my last signify at the desire of
your friends on the Session of the rumours here did
flow from our freedom with your Grace, to show you
the lying rumours which were industriously spread to
amuse people from insisting in their suits in the Ses-
sion ; on which accompt it was put in the News-letter
which ordinarly comes here, that all the outed advo-
cates were to come in, which I believe was e'er they
made any application to your Grace. But it was far
from obtaining belief amongst your friends that there
would be any alteration in that which the king, by his
last letter to the Session, had declared to be his final
determination in that whole affair ; nor do I know
any difference in any of your friends, and for myself
I know yourself and your way better than to be cap-
able of any such impression. I thank God there is
nothing more alien from my nature than jealousy or
suspicion."

It is worthy of mention as an instance of regard for
Lord Stair on the part of the Town Council of Edin-
burgh, that in December 1676, " taking into considera-
tion the many great and signal services done to the
city by Sir James Dalrymple, President of the Ses-
sion," the Council not only ordered his house-rent to
be paid by the town during his life, but likewise that
of all his successors in office. *

He was in the course of the same year sent for by
the king, probably by request of Lauderdale, to assist

* This act of the Town Council continued in force till 1741, when
the privilege conferred by it was relinquished by President Duncan
Forbes.



60 THE STAIR ANNALS. [1676.

in composing some differences that had arisen in the
Scottish Administration ; upon which occasion he is
said to have been offered, and to have declined, the
situation of Chancellor, which would have brought
him more in contact with the political action of the
Government*

* Impartial Account of Transactions in Scotland.



I679-] VISCOUNT STAIR. 6l



CHAPTER VII.

Arrival of the Duke of York in Scotland as Royal Commissioner Pre-
sident Stair takes up a position antagonistic to the Government
The Test Oath He is deprived of his office without cause shown
Retires to the country, and is annoyed with a judicial persecution
Go cs into exile Publication of his Institutions of Scottish Law
His occupation at Leydcn Physiologia Nova Experimental^
Views of the Prince of Orange Sir James Dalrymple accompanies
the Prince to England.

UPON the arrival of the Duke of York in November
1679 to take up his residence at Holyrood House, as
Royal Commissioner in Scotland, Lord Stair, alleging
an unwillingness to adjourn the business of the court,
declined to go in procession with the judges to meet
the Duke on the road to Edinburgh a mark of defer-
ence and attention which was paid to him by a nume-
rous company of the nobility and gentry upon the
day of his arrival. On the following day the presi-
dent presented himself at Holyrood, and congratu-
lated his Royal Highness, whose Roman Catholic
proclivities were generally known, in a speech con-
taining this expression of sentiment : " It is matter
of great joy to this nation to see one of the royal
family among them, after being deprived for so
many years of that honour ; and the nation being



62 THE STAIR ANNALS. [1680.

entirely Protestant, it is the fittest place in which
your Royal Highness could have your recess at this
time." * The hint given in so unqualified a manner of
the reception which the Roman Catholic Duke was



Online LibraryJohn Murray GrahamAnnals and correspondence of the viscount and the first and second earls of Stair; (Volume 1) → online text (page 5 of 28)