DALRYMPLE, JAMES

DALRYMPLE, JAMES, Viscount of Stair, who bears the greatest name in the annals of Scottish jurisprudence, was the son of James Dalrymple of Stair, by his wife Janet, the daughter of Fergus Kennedy of Knockdaw, and was born in the month of May 1619, at Dunmore in the parish of Barr and county of Ayr. The family from which he descended was at an early period distinguished by its love of religious liberty: Dalrymple of Stair is mentioned among the Lollards of Kyle. Before he had attained the fifth year of his age, he lost his father,¹ and the care of his education devolved upon his mother, who is described as a woman of an excellent spirit, and who survived her husband for nearly forty years. The first elements of learning he acquired at Mauchline school, and at the age of fourteen was sent to the university of Glasgow, where he took the degree of A. M. in 1637. He repaired to Edinburgh in the course of the ensuing year, and obtained a commission in the earl of Glencairn's regiment, but he did not long adhere to the military profession. In 1641 he was encouraged to offer himself as a candidate for a vacant professorship of philosophy at Glasgow. In those old-fashioned times, the comparative merit of candidates was a circumstance not entirely disregarded: their comparative merit was ascertained by a fair and open competition; on this occasion, Captain Dalrymple presented himself in buff and scarlet, and was with great applause declared to be the successful competitor. He retained his commission for some time after he became professor of philosophy. He was admitted on the 12th of March, and became bound by an oath to resign his professorship in case of marriage. As a preparation for such a step, he accordingly resigned it on the 4th of September 1643, and was immediately re-elected. On the 21st of the same month, he married Margaret, the eldest daughter of James Ross of Balneil in the county of Wigton, with whom he acquired a large estate. They are said to have lived together in great happiness; but, according to the statement of one of his descendants, Lord Hailes, his happiness must have been in his own mind, for "he could not have much happiness from the complacency of his wife."

After his return to Glasgow, he appears to have applied

Dalrymple, his vigorous faculties to the discharge of his particular functions, and to the enlargement of his stock of general learning. His lectures were attended by many young men of rank and fortune,¹ and he thus had an opportunity of forming connexions which he afterwards found to be of considerable advantage. Not satisfied with his present acquisitions, he devoted much attention to the study of the Greek and Latin languages, with the history and antiquities of Greece and Rome; and to all his other pursuits he added the study of the civil law, in which he must have been his own preceptor. His colleagues had easily discovered his talents for business, and he frequently had occasion to visit the seat of government in the prosecution of some of the university suits: he was thus rendered familiar with the forms of judicial procedure, and became acquainted with the most eminent men on the bench and at the bar. Having adopted the resolution of betaking himself to the profession of the law, he resigned his chair in the year 1647, and was admitted an advocate on the 17th of February 1648, being then in the twenty-ninth year of his age. He soon rose to professional eminence. After the execution of the king, the committee of estates dispatched certain commissioners to his son at Breda, for the purpose of inviting him to Scotland: Dalrymple was appointed to act as their secretary, and he appears to have acquitted himself to the satisfaction of both parties in this weighty negotiation. In Holland he visited several learned men, and particularly Salmasius, who held an honorary professorship in the university of Leyden. He returned home in the course of the ensuing year, 1650; but during his absence, he had been nominated by the estates one of the commissioners for revising the old books of law, the acts of parliament, and the practice of the different judicatures. On the 29th of May he was sent to the north, along with Arthur Erskine of Scots-craig, with instructions to attend the king's landing.² He experienced a favourable reception, and appears to have engaged very zealously in the royal cause; but it is well known that the efforts of the Scottish royalists to place Charles on the English throne were unavailing to him, and pernicious to themselves.

Dalrymple continued his practice at the bar till the imposition of what was called the Tender, when several other eminent lawyers likewise retired. He however resumed his place when Cromwell's government either dispensed with the oath, or connived at its omission. In the year 1656, he was included in a deputation of four advocates who were sent to remonstrate with the commissioners for the administration of justice, on the expediency of restoring the ancient practice of the outer-house, which these republican judges had suppressed. This remonstrance was attended with the desired effect. On the 26th of June 1657, Sir James Learmonth of Balcomy, one of the judges, expired on the bench; and on the very same day, a commission, appointing Dalrymple in his place, was signed by General Monk in the name of the protector's council in Scotland. In a letter written three days before, the general had recommended him to Cromwell as "a person fit to be a judge, being a very honest man, a good lawyer, and one of a considerable estate;" and now, describing him as a person of eminent abilities, he craved his highness's approbation of the choice which the coun-

cil had been induced to make.³ The annual salary of the Dalrymple judges was then three hundred pounds sterling. This was a preferment which he had not solicited, and of which he did not accept without considerable reluctance. Whatever might be his views or feelings as to Cromwell's government, it is probable that his practice at the bar may have been more lucrative. He was admitted on the list of July, and his appointment was confirmed by the protector on the 25th of the same month. In this situation, his interest was beneficially exerted in procuring for the gentlemen connected with the counties where his estates were situated, a redress of grievances from the council or the English officers; and by thus enlarging the sphere of his utility, he increased his connexions, and strengthened his personal influence. He obtained so considerable a share of Monk's confidence, that the day before he began that march which decided the fate of three kingdoms, he held a private conference with Dalrymple, and requested him to deliver his unreserved opinion as to the best method of restoring tranquillity and regular government. The learned judge readily answered that "the wisest and fairest way was to procure a meeting of a full and free parliament." This sound advice was ultimately adopted, at least to a certain extent; and of Monk, "who was determined to make his own fortune, without regard to any party," it must at least be admitted that he acquitted himself with sufficient dexterity.

Soon after the Restoration, Dalrymple accompanied the earl of Cassillis to London, in order to pay his respects to the king. On this occasion he received the honour of knighthood; and his name was inserted in the first commission to the judges of the court of session, dated on the 13th of February 1661. During the absence of the lord president, it was customary to appoint a vice-president; and, except in one instance, when he was himself absent at the same time, the choice uniformly fell upon Sir James Dalrymple. After an interval of two years, he was exposed to some degree of uneasiness by the operation of the statutes which required the oath of allegiance to be accompanied with a declaration against the national covenant adopted in 1638, and the solemn league and covenant adopted in 1643, as being contrary to the fundamental laws and liberties of the kingdom. Dalrymple was in the country attending the funeral of his mother when this ill-timed declaration was tendered to his colleagues, and when all who were in town subscribed it, with the solitary exception of Sir James Dundas of Arniston. The earl of Glencairn, lord chancellor, communicated to him the king's order to the privy council to declare vacant the places of such judges as refused to subscribe; and in his answer, dated at Ayr on the 15th of January 1664, he stated that he had already resigned his commission into the king's hands.⁴ After the lapse of a few months, he was invited to court, and was favoured with an audience of his majesty, who graciously received his explanations, and was pleased to inform him that he would not accept his resignation. The conscientious judge stated that he was willing to "declare against no more than what was opposite to his majesty's just right and prerogative." A letter from the king, dated on 21st of April, restored him to his seat on the bench, and his declaration was afterwards received with this qualifica-

tion. During the interval, he had made an excursion to France: he left London on the 22d, and reached Paris on the 29th of April.¹ On the 2d of June ensuing, he was created a baronet. While at the bar, he had refused all employment in criminal cases, and under the protectorate he had declined to act in the criminal court. After the Restoration, he was offered the place of king's advocate, or that of a judge in the court of justice: but, says Forbes, "he excused himself, alledging for his reason the danger of acquitting the guilty, or wounding the innocent in such offices; and no doubt the gentleness of his nature, as well as the hazard he foresaw in deciding concerning state-crimes, had influence on that resolution."² The various regulations which altered and improved the practice of the court from the period of the Restoration to the year 1669, are in a great measure imputed to his influence. He was one of the commissioners appointed under the great seal for regulating judicatures; and the regulations which they recommended were embodied and confirmed by acts of parliament passed in 1669 and 1672. He opposed the distinction which was then projected between lawyers who practised in the inner and those who practised in the outer-house; and he equally opposed the scheme of tendering to the advocates an oath that they would not accept higher fees than were fixed by the authority of the court. For his conduct in resisting these unpalatable measures he received the thanks of the faculty: but in the midst of the arbitrary proceedings which were so prevalent at that period, it was difficult to escape the general odium; and in 1674, during the great schism which took place between the bench and the bar, on the subject of appeals from the court of session to the parliament, he felt the force of that envy which his merit and his good fortune had frequently provoked. In his Apology he has expressly declared that he had no personal concern in the violent measure of banishing the advocates from Edinburgh.

The project of a union between the two kingdoms had been revived in the year 1670, and Sir James Dalrymple was then appointed one of the Scottish commissioners. By his wit and address upon this occasion, he strongly recommended himself to the good graces of Lauderdale.³ He was soon afterwards nominated a member of the privy council, which at that period was invested with very undefined and arbitrary powers. The office of president of the court of session having become vacant by the resignation of Sir John Gilmour of Craigmillar, he was appointed to succeed him on the 13th of January 1671; and his place as an ordinary judge was supplied by his kinsman Sir Thomas Wallace of Craigie. On the 15th of December 1676, the common council of Edinburgh, having taken into consideration the many great and signal services done to the city by the lord president, resolved that his house-rent should be paid from the funds of the corporation, and that the same benefit should be extended to his successors in office. This municipal act continued in force till the year 1741, when the lord president Forbes declined to avail himself of the privilege which it conferred.⁴

Dalrymple's connexion with so corrupt an administra-

tion necessarily exposed him to suspicion and obloquy. Dalrymple. Having afterwards been charged with subservience to the duke of Lauderdale, a name devoted to infamy, he replied that the accusation was "general and calumnious, without an instance given;" and he then proceeded to state that his influence had always been applied to the most beneficial purposes. The duke, he remarks, "came to Scotland in the year 1677; and upon representations made by me and others, he concurred in making several acts of council, correctory of the abuses that then run; as particularly, that persons were cited for church-disorders, without special circumstances of time or place, but generally in one or other of the days of all the months for several years; and were put to their oaths upon the whole libel, whereby many had been holden as confess, and thereupon fined, imprisoned, and transported like slaves to foreign plantations: whereupon the then arch-bishop of St Andrews did represent to the bishops in England, and to the court, that he was overturning the settlement of this nation; and he likewise said that in one month after he came hither, he had put the king's interest further back than could be retrived in seven years. To make up which, he was instigated to bring in the Highland host upon the west of Scotland, who treated them as enemies, not only by free quarter, but by all insolencies and oppressions; and to obtain an order of council to enjoin a bond to be taken by all in public trust, and others in that countrey, to delate, apprehend, and bring to judgment all the presbyterian ministers that came ever in their power, that had kept any conventicles: against both which I did with all freedom and faithfulness dissuade him and dissent; and I do not remember of any one person in council or session that could never be induced to subscribe that bond, or to approve that road, but my self. And when in the year 1679 several complaints were made to K. Charles against Lauderdale and his brother, which were published in print,⁵ and whereupon K. Charles gave a publick audience, though I was there present, there was not the least insinuation against me."⁶ What he here states in reference to that pillar of the apostolical church Dr Sharp, is sufficiently characteristic. Any departure from the most violent and oppressive measures, was to be construed as hostile to church and state. In a private letter addressed to Lord Melville on the 1st of January 1690, he thus expresses himself, in homely language, but with no undignified sentiment: "I ador God's providence in permitting so much dust against me, though the matter, separat from the railing, imports nothing but my embracing first and last the statione God hath called me to, and the malitious ly of my being author, actor, or approver of the cruelties in the former reigns, which your Lordship and all unbyassed and enformed men know to be fals as hell could make it; but I thank God I have the peace of my conscience, and I am confident your Lordship will bear witness for me to his Majesty."

In the year 1679, the duke of York came to reside at Holyroodhouse, and the judges and other members of the College of Justice made him a visit of ceremony. The lord president addressed him in a congratulatory speech,

Dalrymple, which contained the following uncourtly sentiment: "Tis matter of great joy to this nation to see one of the royal family among them, after being for so many years deprived of that honour; and the nation being entirely protestant, it is the fittest place your Royal Highness could have made your recess to at this time." He took other opportunities of endeavouring to impress the duke with a conviction, that it was not for his own advantage to attempt any measure which might have the least tendency to injure the protestant establishment. In the parliament of 1681, in which the duke acted as his majesty's commissioner, Sir James Dalrymple sat as a member for the county of Wigton, and was nominated one of the lords of the articles. When the test was under the consideration of the house, he proposed and carried a clause, that all persons holding public offices should swear that they sincerely professed the protestant religion as contained in the Confession of Faith approved by parliament in 1567. According to the statement of one historian, he drew up such an oath as was neither consistent with itself, nor with his own principles, nor such as could be taken without the guilt of perjury.¹ He was dissatisfied with a test which described the presbyterians as fanatics; and as he could not prevent its being adopted, he seems to have devised the expedient of introducing one clause in order to nullify another. As soon as the act was passed, the duke of York declared that the president had ruined all honest men, that is, all papists, by introducing that Confession. For subscribing this test with a particular explanation, the earl of Argyle was subjected to a prosecution, which formed one of the most flagrant acts of that disgraceful era of our national history. Dalrymple himself declined to subscribe it; and in the month of October he proceeded to London, for the purpose of explaining his conduct to the king, and perhaps of recommending his eldest son as his successor;² but before his arrival, a new commission, appointing Sir George Gordon president, and superseding Sir Thomas Murray of Glendoch, and Sir John Baird of Newbyth, had been issued under the great seal. As he had quitted Scotland without obtaining leave from the commissioner, the king refused him an audience, and Murray, the secretary of state, commanded him to leave England. "That quarrel," he remarks in his Apology, "with my freedom to the then duke, at his first coming to Scotland, against attempting to weaken the protestant interest, in a publick speech I had at his entry, made me to be the first person laid aside that ever was looked after. I was cited before the criminal judges, before the council, before the parliament, and hundreds of examinations and re-examinations were taken against me, even of my most intimate domestic servants, and my sisters in law, not in the regular way of probation, but by way of inquisition to found a process upon any special matter, which was never done, because nothing was found against law. Can any judge in Christendom show such a trial of integrity, who did so long a time serve in such an eminent station? No man was found to witness the least malversation or baseness, by indirect interest in any cause, by taking any bribe or reward, by partiality 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 in my trust as a judge." The only offence that could be traced amounted to a suspicion that some presbyterians, who had been at the battle of Bothwell-Bridge, lived upon his estates, or lurked about his house in the country, when he was occupied with his public duties in

town. This was considered as an adequate ground for Dalrymple proceeding against him for "harbour and reset of rebels," a charge sufficiently indefinite to leave ample room for the operation of laws arbitrary in themselves, and administered with little regard to substantial justice. Dalrymple had previously found it expedient to quit the kingdom. His tenants were harassed in the various modes devised by the instruments of oppression, his rents were arrested, and on applying to the king's advocate, Sir George Mackenzie, he found that he himself incurred the danger of being committed to prison: he therefore sought a place of refuge in Holland, where he arrived towards the close of the year 1682. He chiefly resided at Leyden, the seat of a very famous university.

While he was exposed to these persecutions, he prepared for the press those works which have chiefly recommended him to the notice of posterity. His first and greatest work was printed before he went into exile. "The Institutions of the Law of Scotland, deduced from its originals, and collated with the Civil, Canon, and Feudal Laws, and with the customs of neighbouring nations."³ Edinb. 1681, fol. This volume includes a "Medus Litigandi, or Form of Process observed before the Lords of Council and Session." After a considerable interval, his Institutions appeared in a "second edition, much enlarged." Edinb. 1693, fol. A much longer period elapsed before the appearance of "the third edition, corrected and enlarged, with notes." Edinb. 1759, fol. This edition was begun by John Gordon, who only conducted it to the eighty-fifth page, and the undertaking was completed by William Johnstone, afterwards more conspicuously known by the name of Sir William Pulteney. But the labours of these editors appear very insignificant, when compared with those which are exhibited in "the fourth edition, with commentaries and a supplement, by George Brodie, Esq. Advocate." Edinb. 1826-31, 2 vols. fol. It is a proof of the estimation in which the author continues to be held, that another elaborate edition has since been given to the public, "with notes and illustrations by John S. More, Esq. Advocate." Edinb. 1832, 2 vols. 4to. Of the Institutions of Lord Stair there are no fewer than ten manuscript copies in the Advocates Library, and many others are to be found in private collections. It must apparently have been considered as a useful exercise for apprentices in the law to make a complete transcript of a book which was sufficiently accessible in print. During his exile, he published a work which, although requiring less genius and learning in its author, was at that time of great practical utility. "The Decisions of the Lords of Council and Session, in the most important Cases debated before them; with the Acts of Sederunt." Edinb. 1683-7, 2 parts, fol. This work comprehends a report of cases decided from the re-establishment of the court to the month of August 1681.

His next publication was of a very different nature. It bears the following ample and descriptive title: "Physiologia nova Experimentalis, in qua generales Notiones Aristotelis, Epicuri, et Cartesii suppletur, Errores deteguntur et emendantur, atque claræ, distinctæ, et speciales causæ precipuorum experimentorum, aliorumque phenomenonum naturalium aperientur, ex evidentibus principiis quæ nemo antehac perspexit et prosecutus est: autore D. de Stair, Carolo II. Britanniarum Regi a Consiliis Juris et Status, Nuper Latinitate donata." Lugduni Batavorum, 1686, 4to. The expression "nuper Latinitate donata," would seem to indicate that the book had first appeared in an-

other language: we cannot discover that this was actually the case, but he may have employed some person to translate his manuscript into Latin.¹ The learned author had at an early period of his life been accustomed to read lectures in that language, and could himself have performed such a task. This publication received a very favourable notice from Bayle.²

In the mean time, Dalrymple and his family were not exempted from persecution. On the charge of absenting herself from church and frequenting conventicles, his lady was cited before the privy council in the year 1683,³ and their eldest son Sir John Dalrymple was harassed by many vexatious proceedings. On the complaint of Graham of Claverhouse, he was in the course of the same year compelled by the council to pay £500 sterling, on the pretext that, as heritable bailie of Glenluce, he had interfered with the jurisdiction of the sheriff, and exacted too small fines from his own and his father's tenants for frequenting conventicles. Although he had taken no share in the political measures of the time, he was in September 1684 seized during the night in his own house at Newliston, and, without any colour of law or justice, was next day committed to prison like a common malefactor. After having been detained for three months, he was released on giving security to the amount of £5000 sterling.⁴ By his talents and dexterity, he not only prevented the escheat of his father's estate, but speedily raised himself to power and influence. The father having been implicated in the Rye-house plot, was prosecuted for treason, and sentence of outlawry was pronounced against him on the 17th of March 1685;⁵ but his son, who was appointed lord advocate towards the close of the ensuing year, had sufficient interest and address to procure a pardon, not only to him, but likewise "to his mother, his brethren and sisters, and particularly for their reset and converse with traitors, and to his little son, who had accidentally shot his brother."⁶

His own experience had rendered him too familiar with the miseries inseparably connected with arbitrary government, and he was therefore sufficiently prepared to engage in an attempt to rid the kingdom of an incorrigible tyrant. When the prince of Orange was on the eve of embarking for his memorable expedition, Dalrymple enquired into the real object of his enterprise: and when the prince declared that he designed the glory of God, and the security of the protestant religion, the venerable exile pulled off his wig, and pointing to his head, exclaimed, "Though I be now in the seventieth year of my age, I am willing to venture that, my own, and my children's fortunes in such an undertaking." It is stated by Forbes, that "the kindness and tender affection expressed by his Royal Highness upon that occasion to my Lord Stair, exposed him to the envy of several persons; which after-

wards broke out in pamphlets stuff'd with personal reflections, and other injurious writings against restoring him to his rightful office of president of the session, and asspersing his administration thereof. This good old man, with all imaginable cheerfulness, came over in that glorious expedition, to preserve our constitution, when religion, liberty, and property, the dearest concerns of mankind, seem'd to be at stake. The prince, upon his landing at Torbay, sent to inquire concerning my Lord Stair's health; and perceiving that his horses were not come up, ordered a Neapolitan horse belonging to himself to be sent to the Lord Stair for his accommodation." When he arrived in Scotland, his influence was very usefully exerted in providing that the election in boroughs should be conducted by a general poll of freemen, and thus securing a majority of Whigs and presbyterians in the convention of estates.

Sir George Lockhart, president of the court of session, fell by the hand of an assassin on the 31st of March 1689, and on the 28th of October Sir James Dalrymple was reinstated in his former office. This appointment, so equitable and judicious in itself, excited a considerable degree of popular clamour, on the alleged ground, that when the court was entirely dissolved by this change in the government of the kingdom, it was not competent for the crown to restore it without the authority of parliament. The lord president was very fiercely attacked in an anonymous pamphlet ascribed to Robert Ferguson, a restless and unscrupulous individual, who was known by the descriptive appellation of the Plotter, and who was "remarkable for serving his party, and saving himself in all plots."⁷ This publication produced "An Apology for Sir James Dalrymple of Stair, President of the Session, by himself." Edinb. 1690, 4to.⁸ He appears to us to have defended his character and conduct in a manner at once able and satisfactory. In the course of the same year, on the 21st of April, he was elevated to the peerage, by the title of Viscount of Stair, Lord Glenluce and Stranraer, with limitations to the heirs male of his body. He had now acquired great influence in the management of affairs in Scotland; and this influence derived no inconsiderable support from his son, who was conspicuous for the elegance of his person, and the power of his eloquence. The last publication of the distinguished author was worthy of his declining years, and of his former reputation. It bears the title of "A Vindication of the Divine Perfections, illustrating the Glory of God in them, by Reason and Revelation: methodically digested into several Meditations. By a Person of Honour." Lond. 1695, 8vo. A preface, written by Dr Bates and Mr Howe, two eminent individuals among the English non-conformists, contains a very high commendation of the author and his performance. "The clearness and vigor of his spirit," they remark, "are

Dalrymple, illustriously visible in managing a subject so deep and difficult. And as in the blessed God there is a union of all glorious and amiable excellencies as are perfective of our minds, and attractive of our wills; so in our author's unfolding them, there is joined with the strength of argument, that beauty of persuasion as may enlighten and engage all understanding readers to be happy in the entire choice of God for their everlasting portion." He must apparently have been indebted to some of his English friends for purifying his style from provincial idioms, which are sufficiently numerous in his other works. But his long and eventful life had nearly reached its close: he died on the 25th of November 1695, after having attained the seventy-seventh year of his age, and his remains were interred in St Giles's church.

He left behind him a numerous and prosperous family.¹ Lady Stair had died in the year 1692. John, his eldest son, who became a judge, and secretary of state, was created earl of Stair: he was equally distinguished by his talents, but possessed less consistency of character; and his concern in the massacre of Glenco has affixed an indelible stain upon his memory.² The second earl acted a very conspicuous part in the wars and diplomacies of his own age. Sir James Dalrymple, Bart. the second son of the lord president, was one of the principal clerks of session; and, as an antiquary, he is favourably known by his "Collections concerning the Scottish History." Edinb. 1705, 8vo. Sir Hugh Dalrymple, Bart. the third son, succeeded his father as president of the court of session. The fourth son was Thomas Dalrymple, M. D. physician in ordinary to the king in Scotland. The youngest son, Sir David Dalrymple, Bart. was, like many other members of the same family, bred to the legal profession, and was successively solicitor general, lord advocate, and auditor of the Scottish exchequer. He was the grandfather of the late Lord Hailes. The president had four daughters, all of whom were married, two of them into the noble families of Cathcart and Dumfries.

Lord Stair, like every other individual who has rendered himself highly conspicuous in times of great public excitement, is mentioned by different writers with a very different measure of praise or censure. According to Bishop Burnet, he was "a man of great temper and of a very mild deportment, but a false and cunning man, and a great perverter of justice; in which he had a particular dexterity of giving some plausible colours to the greatest injustice." This general and heavy charge of perverting justice we have not found supported by any particular instances. The fountains of justice were at that unhappy period very extensively polluted, but we are disposed to class him among the most unexceptionable judges who had then sat upon the Scottish bench. We must not how-

ever conceal the fact, that, when he resumed his seat after the Revolution, his conduct as a judge was a frequent and angry topic of discussion;³ nor can we venture to determine how far this circumstance is to be imputed to the force of political animosity. It was his misfortune to live in most flagitious times, and by his public station to be necessarily connected with a government which evinced a total disregard of the first principles of justice and humanity. The arbitrary proceedings of Lauderdale he seems to have resisted, with consummate prudence indeed, but still with decent firmness; and of the integrity of his character he exhibited repeated proofs, by preferring the loss of office and emolument to a compliance with the iniquity of the times. At a period when the nobility and gentry of Scotland furnished so many and such flagrant examples of cool and deliberate villany, Lord Stair acted with a very unusual degree of moderation and consistency; nor would it perhaps be easy to mention any person of rank in the profligate reign of Charles II. whose character could so well endure a severe scrutiny. He was a man of the most gentle deportment,⁴ joined with a prudence which seemed to be constitutional; and as extreme prudence not unfrequently lingers on the verge of meanness or artifice, it may in some cases be difficult to trace the line where virtue ends and vice begins. The force of his talents and the respectability of his character rendered him an acquisition to any party in the state. He was importuned to accept of a seat on the bench under the government to which, as an advocate, he had declined to take the oath of allegiance; and when he was admitted, it only appears that he took an oath to discharge his office with fidelity. A similar line of conduct was pursued in another kingdom by Sir Matthew Hale, whose name can never be mentioned but with high respect. When Stair became a member of the privy council, he was indeed associated with men whose breath was contamination; but even in this difficult situation he seems to have maintained his integrity, and to have resisted to the utmost of his power the pernicious and profligate measures which then disgraced the nation. An individual of a more bold and decided character might have signalized his opposition by more prominent acts; but, in the midst of such associates, it must have proved less beneficial to the community, and more ruinous to himself.⁵ In all the relations of private life, his enemies have not denied him the praise of being mild and amiable. He was zealously attached to the protestant faith, and exhibited an edifying example of domestic piety.⁶

His character as a lawyer is too well known to require any illustration in a work of this nature. He was evidently a man of a great capacity, and of various learning; he was not only skilled in ancient literature and in jurispru-

dence, but likewise in philosophy, and even in theology. He was the first writer who reduced the law of Scotland to the form of a system, and confessedly the ablest writer who ever made such an attempt.¹ Sir Thomas Craig, who preceded him by nearly a century, found it a rude and undigested mass, and in arranging and methodizing one extensive and important branch, he exerted no mean talents or learning. Lord Stair adopted a more general design, and, with great sagacity extracting order out of confusion, combined his loose and heterogeneous materials into a compact and lucid form; nor would it perhaps be easy to mention an instance of another individual having effected so signal an improvement in the jurisprudence of any modern nation. (x.)