A still more striking illustration of Lauder's political views is afforded

by his numerous observations on Argyll, who played so great a part in

public affairs during the period covered by the manuscripts until his

execution in 1685. Argyll was not a sympathetic figure to Lauder, but, as

usual, he does justice to his qualities, and recognises the tragedy of his

fate. On the day of his execution he notes, 'And so ended that great man,

with his family, at that time.' He had a more cordial personal admiration

for a very different statesman, Lauderdale, though he often disapproved of

his policy. At his death he writes, '24 of August, 1682, dyed John

Maitland, Duke of Lauderdale, the learnedest and powerfullest Minister of

State of his age, at Tunbridge Wells. Discontent and age were the

ingredients of his death, if his Dutchesse and Physitians be freed of it;

for she had abused him most grosely, and got all from him she could

expect.... The Duke of York was certainly most ungrate to Lauderdale; for

Lauderdale was the first who adventured in August 1679 to advise the King

to bring home the Duke of York from Flanders.'[23] Argyll he deemed to be

wanting in magnanimity. In 1671 he writes on the subject of a point in a

lawsuit being decided in Argyll's favour, 'This was my Lord President's

doing [Stair], he being my Lord Argyle's great confidant. It was admired by

all that he blushed not to make a reply upon his Father's forfaultor, and

whow he had committed many treasonable crimes before the discharge, and to

see him rather than tyne his cause, suffer his father rather to be

reproached and demeaned as a traitor of new again, by his own advocats,' So

fourteen years later he writes, 'Whatever was in Argile's first

transgression in glossing the Test (which appeared slender), yet God's

wonderfull judgements are visible, pleading a controversie against him and

his family, for the cruall oppression he used, not only to his father's,

but even to his oune creditors. It was remembered that he beat Mistris

Brisbane done his stairs for craving hir annuelrents, tho he would have

bestowed as much money on a staff or some like curiosity.' He was, however,

one of Argyll's counsel when he was prosecuted for taking the Test, with

the explanation 'that he conceived that this Test did not hinder nor bind

him up from endeavouring alterations to the better either in Church or

State.' Argyll, who had escaped, was sentenced to death in his absence,

attainted, and his estates forfeited. Lauder strongly disapproved of the

proceedings. He writes, 'There was a great outcry against the Criminal

Judges, their timorous dishonesty....' These words, 'consistent with my

loyalty, were judged taxative and restrictive, seeing his loyalty might be

below the standard of true loyalty, not five-penny fine, much less eleven-

penny,' ... 'The design was to low him, that he might never be the head of

a Protestant party, and to annex his jurisdiction to the Crown, and to

parcel out his lands; and tho' he was unworthily and unjustly dealt with

here, yet ought he to observe God's secret hand, punishing him for his

cruelty to his own and his father's creditors and vassals, sundry of whom

were starving.' Lauder speaks of 'that fatal Act of the Test.' He had no

favour for it, and he narrates with glee how 'the children of Heriot's

Hospitall, finding that the dog which keiped the yairds of that Hospitall

had a publick charge and office, they ordained him to take the Test, and

offered him the paper, but he, loving a bone rather than it, absolutely

refused it; then they rubbed it over with butter (which they called an

Explication of the Test in imitation of Argile), and he licked of the

butter, but did spite out the paper, for which they hold a jurie on him,

and in derision of the sentence against Argile, they found the dog guilty

of treason, and actually hanged him.'

[23] Sir George Mackenzie also, who criticises Lauderdale's proceedings

very freely, pays a fine tribute to one trait in his character,

'Lauderdale who knew not what it was to dissemble.'--_Memoirs_, p.

182.

[Sidenote: H.O. 166]

[Sidenote: H.0. 196.]

[Sidenote: H.O. 189.]

Although Lauder considered that Argyll had been unjustly condemned in the

matter of the Test, his opinion about the expedition of 1685 was very

different. He did justice to his capacity. He writes, 'Argile had always

the reputation of sense and reason, and if the Whigs at Bothwell Bridge in

1679 had got such a commander as he, it's like the rebellion had been more

durable and sanguinarie' But as soon as the news of Argyll's landing on

the west coast came, this is his note, 'Argile, minding the former

animosities and discontents in the country, thought to have found us all

alike combustible tinder, that he had no more adoe then to hold the match

to us, and we would all blow up in a rebellion; but the tymes are altered,

and the peeple are scalded so severely with the former insurrections, that

they are frighted to adventure on a new on. The Privy Council, though they

despised this invasion, yet by proclamations they called furth the whole

heritors of Scotland,' and so on. 'Some look on this invasion as a small

matter, but beside the expence and trouble it hes put the country to, if we

ponder the fatall consequences of such commotions, we'll change our

opinions: for when the ramparts of government are once broke down, and the

deluge follows, men have no assurances that the water will take a flowing

towards their meadows to fructify them; no, no, just in the contrare.'

Argyll was discovered and apprehended in his flight by a weaver near

Paisley, of whom Lauder says, 'I think the Webster who took him should be

rewarded with a litle heritage (in such a place wher Argile's death will

not be resented), and his chartre should bear the cause, and he should get

a coat of arms as a gentleman, to incouradge others heirafter.' It does not

appear that this suggestion was acted upon.

But while Lauder was a supporter of the existing order of government and

opposed to all revolutionary plans, his journals disclose that in the state

of public affairs he found much matter for criticism and ground for

anxiety. In 1674 he tells of what will happen 'whenever we get a fair and

unpraelimited Parliament, which may be long ere we see it.' In 1683 he

writes sadly: 'Though we change the Governors, yet we find no change in the

arbitrary government. For we are brought to that pass we must depend and

court the Chancelor, Treasurer, and a few other great men and their

servants, else we shall have difficulty to get either justice or despatch

in our actions, or to save ourselves from scaith, or being quarrelled on

patched up, remote and innocent grounds. This arbitrary way Lauderdale

attempted, but did not attain so great a length in it as our statesmen do

now; and they value themselves much in putting the military and

ecclesiastic Laws to strict and vigorous execution, so that, let soldiers

commit as great malversations and oppressions as they please, right is not

to be got against them. Witness John Cheisly of Dalry's usage with Daver

and Clerk, in the Kings troupe, and Sir John Dalrymple's with Claverhouse.'

In the same year he says of James, then Duke of York, and Monmouth, 'We

know not which of their factions struggling in the womb of the State shall

prevail.' He regarded these political evils and dangers as beyond his power

to remedy. It was not till after he had entered Parliament in 1685 that he

made any public utterance on politics. In the last two years of James's

reign the Test Act was enforced against Nonconformist Protestants but not

against Roman Catholics. Lauder, being then in Parliament, considered it

his duty to take a part, and he made one or two very moderate speeches,

which, although expressed with studious respect to the sovereign, were

doubtless highly displeasing to the government.

OPINIONS ON ADMINISTRATION OF JUSTICE AND HIS CONTEMPORARIES.

INFLUENCE OF STUDIES ABROAD

[Sidenote: H.N. 40.]

In the matter of the administration of justice he writes with much less

reserve in his journals. The system was bad. The jurisdiction of the Privy

Council, who tried a considerable number of causes, was ill-defined. The

judges since the time of Charles I. were removable magistrates, entirely in

the dependence of the Crown. Even the ordinary Lords of Session were not

always trained lawyers--Lauder's father-in-law, for example, Sir Andrew

Ramsay, long Provost of Edinburgh, became a judge with the title of Lord

Abbotshall. There were besides four extraordinary lords who were never

lawyers, and were not bound to attend and hear causes pleaded, but they had

the right to vote. At the Revolution one of the reasons assigned for

declaring the Crown vacant was 'the changing of the nature of the judges'

gifts _ad vitam aut culpam_, and giving them commissions _ad bene placitum_

to dispose them to compliance with arbitary sourses, and turning them out

of their offices when they did not comply.' Thus in 1681, when the Test Act

was passed, five judges were dismissed, four ordinary, including the

President, Stair, and one extraordinary, Argyll, and a new commission

issued. When the Court was so constituted, it could hardly inspire implicit

confidence, and the instances are numerous in which Lauder complains that

injustice has been done, and the principles of the law perverted through

the influence of political and private motives. Even the most eminent of

the judges were not in his opinion clear from this blot. I have quoted one

passage in which Lauder hints at Stair's partiality for Argyll. In another

case in which Argyll was concerned he observes, 'Every on saw that would be

the fate of that action, considering the pershewar's probable intres in the

President.'[24] In 1672 when, as he considered, a well-established rule of

law had been unsettled, he writes, 'This is a miserable and pittiful way

of wenting our wit, by shaking the very foundations of law, and leaving

nothing certain. The true sourse of it all is from the wofull divisions in

the House, especially between the President and the Advocat [Mackenzie],

each of them raking, tho from hell, all that may any way conduce to carry

the causes that they head, _Flectere si neque superos_,' etc. One decision

which excited his warm indignation was given in a suit by Lord Abbotshall

against Francis Kinloch, who held a wadset over the estate of Gilmerton,

which Abbotshall maintained was redeemable. He lost the case. After an

extraordinary account of the way in which the decision was arrived at

Lauder proceeds, 'the Chancelor's [Rothes] faint trinqueting and

tergiversation for fear of displeasing Halton (who agented passionately for

Francis) has abated much of his reputation. The 2d rub in Abbotshall's way

was a largesse and donation of £5000 sterling to be given to Halton and

other persons forth of the town's revenue for their many good services done

to the toune. By this they outshot Sir Androw in his oune bow, turned the

canon upon him, and _justo Dei judicio_ defait him by the toune's public

interest, with which weapone he was want to do miracles and had taught them

the way[25].... This decision for its strangeness surprised all that heard

of it; for scarce even any who once heard the case doubted but it would be

found a clear wodsett, and it opened the mouths of all to cry out upon it

as a direct and dounright subversion of all our rights and properties.'

[24] Lauder was a very young man at the bar when he wrote these

strictures on Stair. They may be compared with and in part

corrected by a passage in Sir G. Mackenzie's _Memoirs_, p. 240,

which also bears on the appointment of incompetent judges.

'Lauderdale by promoting four ignorant persons, who had not been

bred as lawyers, without interruption, and in two years' time, to

be judges in it [the Session], viz., Hatton, Sir Andrew Ramsay,

Mr. Robert Preston, and Pittrichie, he rendered thereby the

Session the object of all men's contempt. And the Advocates being

disobliged by the regulations did endeavour, as far as in them

lay, to discover to the people the errors of those who had opprest

them: and they being now become numerous, and most of them being

idle, though men of excellent parts, wanting rather clients than

wit and learning, that society became the only distributor of

fame, and in effect the fittest instrument for all alterations:

for such as were eminent, did by their authority, and such as were

idle, by well contrived and witty raillery, make what impressions

they pleased upon the people. Nor did any suffer so much as the

Lord Stairs, President of the Session; who, because of his great

affection to Lauderdale, and his compliance with Hatton, suffered

severely, though formerly he had been admired for his sweet temper

and strong parts. And by him our countrymen may learn, that such

as would be esteemed excellent judges must live abstracted from

the court; and I have heard the President himself assert that no

judge should be either member of Council or Exchequer, for these

courts did learn men to be less exact justiciars than was

requisite.'

[25] See Appendix III.

It is not to be inferred from such strictures on the administration of

justice, a matter on which, as an upright lawyer, Lauder was keenly

sensitive, that he was an ill-natured critic of his professional brethren

or of public men. On the contrary, the tone of his observations, though

shrewd and humorous, is kindly and large-minded. He admired Lockhart, who

was his senior at the bar, and whom he perhaps regarded more than any other

man as his professional leader and chief, though he does not escape a

certain amount of genial criticism. His enthusiastic eulogy of Lockhart's

eloquence has been often quoted. In his estimation of Mackenzie it is easy

to see, that while he doubted the wisdom and humanity of his relentless

prosecutions, and while his arrogance comes in for criticism in a lighter

vein, respect for his capacity, learning, and industry was the

predominating element. It is pleasant to see the constant interest that he

took in Bishop Burnet's books and movements, though they do not appear ever

to have met. 'Our Dr. Burnet,' as he calls him. But that only means that he

was a Scotsman, for he describes Ferguson the Plotter in the same way.

There is nowhere a touch of jealousy or envy in those private journals.

The influence of Lander's period of youthful travels, his _Wanderjahre_, on

his future development is seen in various ways. He always kept up his

interest in foreign countries and foreign literature. He bought a great

many books, a list of which year by year is preserved, and he read them.

The law manuscripts, though they embrace a pretty wide field, are confined

to domestic affairs. But in the _Observes_ there are every year notes and

reflections on the events passing in every part of Europe, and especially

France. There is some interest in the following passage, almost the last

sentence in the _Historical Observes_, 'In regard the Duke of Brandenburgh

and States of Holland have not roume in ther countries for all the fugitive

Protestants, they are treating with Pen and other ouners of thesse

countries of Pensylvania, Carolina, etc., to send over colonies ther; so

that the purity of the Gospell decaying heir will in all probability passe

over to America.' The foreign schools of law where he had studied naturally

affected his treatment of legal questions. Until the publication of the

great work of Stair, the common civil law of Scotland was in a

comparatively fluid state, though there were some legal treatises of

authority, such as Craig's _Feudal Law_. Mackenzie's _Criminalls_ was

published in 1676, and is often referred to by Lauder. Many of his

contemporaries at the bar had studied like himself in the foreign schools

of the Roman Civil Law, and in his reports of cases the original sources

are quoted with enviable familiarity and appositeness.

TORTURE, ASTROLOGY, AND WITCHCRAFT

In questions of social ethics, such as torture, and of popular belief, such

as astrology and witchcraft, Lauder was not much in advance of his age. He

frequently mentions the infliction of torture without any comment. When

Spence and Carstairs were tortured with the thummikins, he describes them

as 'ane ingine but lately used with us,' and possibly he had some

misgiving. The subjects of astrology and witchcraft had an attraction for

his inquiring and speculative mind.[26] He believed in the influence of the

heavenly bodies, and more firmly in witchcraft, for which many unhappy

women were every year cruelly put to death. These trials at times evidently

gave him some uneasiness. But usually, with regard to both topics, his

doubts do not go beyond a cautious hint of scepticism tinged with humour.

He was fundamentally a religious man, and where he touches on the great

issues of life, and the relation of man to his Maker, it is in a tone of

deep solemnity. But he loves to discourse in a learned fashion

on the influence of the stars. 'Charles the 2d,' he says, 'fell with few or

no prognosticks or omens praeceeding his death, unlesse we recur to the

comet of 1680, which is remote, or to the strange fisches mentioned, supra

page 72, or the vision of blew bonnets, page 74,[27] but these are all

conjecturall: vide, supra Holwell's prophecies in his Catastrophe Mundi,'

and so on. In 1683 'we were allarumed with ane strange conjunction was to

befall in it of 2 planets, Saturn and Jupiter in Leo.... Our winter was

rather like a spring for mildnes. If it be to be ascrybed to this

conjunction I know not.' In the case of comets there was less room for

scepticism. In December 1680, 'a formidable comet appeared at Edinburgh.'

In discoursing on this comet he remarks that Dr. Bainbridge observed the

comet of 1618 'to be verticall to London, and to passe over it in the

morning, so it gave England and Scotland in their civill wars a sad wype

with its taill. They seldom shine in wain, though they proceed from

exhalations and other natural causes.'

[26] Mr. Andrew Lang has pointed out to me that Lauder's remarks on the

identity of the popular legends in France and Scotland (_Journal_,

p. 83) are a very early instance of this observation, now

recognised to be generally applicable.

[27] P. 74, i.e. of his MS. For the vision of blue bonnets, compare

H.O., p. 142, and Wodrow's _History_, iv. 180.

[Sidenote: H.N. 198.]

[Sidenote: H.N. 146.]

Lauder relates several trials for witchcraft in much detail, and they

evidently gave him some uneasiness. Some of the women commonly confessed

and implicated other persons. In one such case the women, who among other

persons, accused the parish minister, said that the devil sometimes

transformed them 'in bees, in crows, and they flew to such and such remote

places; which was impossible for the devil to doe, to rarefy the substance

of their body into so small a matter ... thir confessions made many

intelligent sober persons stumble much what faith was to be adhibite to

them.' In another case from Haddington a woman confessed and accused five

others and a man. Lauder saw the man examined and tested by pricking. He

says, 'I remained very unclear and dissatisfied with this way of triall,

as most fallacious: and the man could give me no accompt of the principles

of his art, but seemed to be a drunken foolish rogue.' Then, according to

his custom, he cites a learned authority, Martino del Rio, who lays bare

the craft and subtlety of the devil, and mentions that 'he gives not the

nip to witches of quality; and sometimes when they are apprehended he

delets it....' 'The most part of the creatures that are thus deluded by

this grand impostor and ennemy of mankind are of the meanest rank, and are

ather seduced by malice, poverty, ignorance, or covetousness.' But he finds

comfort in the pecuniary circumstances of the Tempter. 'It's the

unspeakable mercy and goodness of our good God that that poor devill has

not the command of money (tho we say he is master of all the mines and hid

treasures of the earth) else he would debauch the greatest part of the

world.'

CONTENTS OF HIS EARLY JOURNALS AND ACCOUNTS

It has already been mentioned that Lauder's later journals, when he came to

chronicle public affairs and legal decisions, though they are full of

graphic detail, contain little that is personal to himself. The manuscripts

here printed, besides giving a picture of a Scottish student's life in

France during the seventeenth century, include a narrative of his visits to

London and Oxford on his return from abroad, his journey by coach and post

from London to Edinburgh, and various expeditions in Fife, the Lothians,

and the Merse, Glasgow, and the Clyde district, places where he had

connections. He travelled on horseback. He kept one horse at this time,

which appears in the Accounts. Considering his evident relish for

travelling, it is remarkable that in his long life he never seems to have

left Scotland after his return in 1667, though many of his more political

brethren at the bar were constantly on the road between Edinburgh and

Whitehall.

He kept his accounts with great care. There were no banks, and his method

was to account for each sum which he received, detailing how it was spent

in dollars, merks, shillings sterling and Scots, pennies, etc. We have both

his accounts during his period of travel, which are included in the first

manuscript, and those during the years 1670 to 1675. From the latter

copious extracts are given, and they are informatory as to the prices of

commodities, and the mode of life of a young lawyer recently married. There

was settled on him by his father in his marriage contract an annuity of

1800 merks (£100), secured on land. His wife's marriage portion was 10,000

merks (about £555), half of it paid up and invested, the remainder bearing

interest at 6 per cent. His 'pension' as one of the assessors of the burgh

was £12 (sterling). His house-rent was £20 (sterling): in one place it is

stated a little higher; and he sublet the attics and basement. The wages of

a woman servant was nearly £2 (sterling). We find the prices of cows, meal,

ale, wine, clothing, places at theatres, etc., the cost of travelling by

coach, posting, fare in sailing packet to London and so on.

[Sidenote: H.O. 137.]

[Sidenote: Genealogical Roll.]

There are many illustrations throughout Lauder's manuscripts of the poverty

of Scotland, relatively not only to the present time but to England. The

official salary of a judge before the Union was £200, and it only reached

that figure during his lifetime. Some time after the Union it was raised to

£500. On the appointment of the Earl of Middleton as joint Secretary of

State for England with Sunderland, in place of Godolphin, Lauder notes,

'This was the Dutchesse of Portsmouth's doing, and some thought Midleton

not wise in changing (tho it be worth £5000 sterling a year, and 3 or 4

years will enrich on), for envy follows greatnesse as naturally as the

shadow does the body, and the English would sooner bear a Mahometan for

ther Secretar than a Scot, only he has now a good English ally, by marrieng

Brudnell Earle of Cardigan's sister.' Thus the salary of a Secretary of

State in England was the same in 1684 as it is now, whereas the salary of a

Scottish judge was only one eighteenth part of its present amount: Lauder

in his will gives a detailed account of his own investments. Sir Thomas

Dick Lauder computes that he left about £11,000 besides the estate of

Fountainhall, which he inherited. He was, however, the son of a wealthy

man. At his marriage before he had any means of his own, 90,000 merks were

settled by his father, who had several other children, on the children of

the marriage (£5000 sterling, representing a sum many times as large in the

present day).

MONEY

Lauder mentions a great variety of coins both in his Journal in France and

in his Accounts after his return home. Some explanation of the principal

coins may be useful. It is necessary to keep in mind that the value of

coins was in a perpetual flux. There were during the century frequent

changes in the value of coins relatively even to those of the same country.

1. _In France._

Publications of the Scottish History Society, Volume 36 Journals of Sir John Lauder Lord Fountainhall with His Observations on Public Affairs and Other Memoranda 1665-1676 · 第 2 / 33 段