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._