1902 Encyclopedia > James Dalrymple, 2nd Viscount Stair

James Dalrymple, 2nd Viscount Stair
Scottish politician

JAMES DALRYMPLE, FIRST VISCOUNT STAIR (1619-1695), was born in May 1619 at Drummurchie in Ayrshire. He was descended from a family for several generations in-clined to the principles of the Reformation, and had ances-tors both on the father's and the mother's side amongst the Lollards of Kyle. His father James Dalrymple, laird of the small estate of Stair in Kyle, died when he was an infant; his mother, Janet Kennedy of Knockdaw, is described as " a woman of excellent spirit," who took care to have him well educated. From the grammar school at Mauchline he went in 1633 to the university of Glasgow, where he graduated in arts on July 26, 1637. Next year he went to Edinburgh, probably with the intention of studying law, but the troubles of the times then approaching a crisis led him to change his course, and we next find him serving in the earl of Glencairn's regiment in the war of the Covenant. What part he took in it is not certainly known, but he was in command of a troop when recalled in 1641 to compete for a regency (as a tutorship or professorship was then called) in the university of Glasgow. He was elected in March. Mathematics, logic, ethics, and politics were the chief subjects of his lectures, and a note-book on logic by one of his students has been preserved. His activity and skill in matters of college business were praised by his colleagues, who numbered amongst them some of the leading Covenanting divines, and his zeal in teaching was gratefully acknowledged by his students. After nearly seven years' service he resigned his regency, and removed to Edinburgh, where he was admitted to the bar on February 17, 1648. This step had probably been rendered easier by his marriage four years before to Margaret Ross, co-heiress of Balneil in Wigtown. Stair's practice at the bar does not appear to have been large; his talents lay rather in the direction of learning and business than of oratory or advocacy. His reputation and the confidence reposed in him were shown by his appoint-ment in 1649 as secretary to the commission sent to The Hague to treat with Charles II. by the parliament of Scotland. The negotiation having been broken off through the unwillingness of the young king to accept the terms of the Covenanters, Stair was again sent in the following year to Breda, where the failure of Montrose's expedition forced Charles to change his attitude, and to return to
Scotland as the covenanted king. Stair had preceded him, and met him on his landing in Aberdeenshire, probably carrying with him the news of the execution of Montrose, which he had witnessed.

During the Commonwealth Stair continued to practise at the bar; but like most of his brethren he refused in 1654 to take the oath of allegiance to the Commonwealth and abjuration of royalty. Three years later, on the death of Lord Balcomie, Stair was appointed one of the commissioners for the administration of justice in Scotland on the recommendation of Monk. His appointment to the bench on 1st July 1657 by Monk was confirmed by Cromwell on the 26th. Stair's association with the English judges at this time must'have enlarged his acquaintance with English law, as his travels had extended his knowledge of the civil law and the modern European systems which followed it. He thus acquired a singular advantage when he came to write on law, regarding it from a cosmopolitan or international rather than a merely local or national point of view. His actual discharge of judicial duty at this time was short, for after the death of Cromwell the courts in Scotland were shut,—a new commission issued in 1660 not having taken effect, it being uncertain in whose name the commission ought to run. It was during this period that Stair became intimate with Monk, who is said to have been advised by him when he left Scotland to call a full and free parliament. Soon after the Restoration Stair went to London, where he was received with favour by Charles, knighted, and included in the new nomination of judges in the Court of Session on 13th February 1661. He was also put on various important commissions, busied himself with local and agricultural affairs, and, like most of the Scottish judges of this and the following century, acted with zest and credit the part of a good country gentleman.

In 1662 he was one of the judges who refused to take the declaration that the National Covenant and the Solemn League and Covenant were unlawful oaths, and, forestalling the deposition which had been threatened as the penalty of continued non-compliance, he placed his resignation in the king's hands. The king, however, summoned him to London, and allowed him to take the declaration under an implied reservation. The next five years of Stair's life were comparatively uneventful, but in 1669 a family calamity, the exact facts of which will probably never be ascertained, overtook him. His daughter Janet, who had been betrothed to Lord Rutherfurd, was married to Dunbar of Baldoon, and some tragic incident occurred on the wedding night, from the effects of which she never recovered. As the traditions vary on the central fact, whether it was the bride who stabbed her husband, or the husband who stabbed the bride, no credence can be given to the mass of superstitions and spiteful slander which surrounded it, principally levelled at Lady Stair. In 1670 Stair served as one of the Scottish commissioners who went to London to treat of the Union; but the project, not seriously pressed by Charles and his ministers, broke down through a claim on the part of the Scots to what was deemed an excessive representation in the British parliament. In January 1671 Stair was appointed president of the Court of Session. In the following year, and again in 1673, he was returned to parliament for Wigtownshire, and took part in the important legislation of those years in the department of private law. During the bad time of Lauderdale's government Stair used his influence in the privy council and with Lauderdale to mitigate the severity of the orders passed against ecclesiastical offenders, but for the most part he abstained from attending a board whose policy he could not approve. In 1679 he went to London to defend the court against charges of partiality and injustice which had been made against it, and was thanked by his brethren for his success. When in the following year the duke of York came to Scotland, Stair distinguished himself by a bold speech, in which he congratulated the duke on his coming amongst a nation which was entirely Protestant. This speech can have been little relished, and the duke was henceforth his implacable enemy. His influence prevented Stair from being made chancellor in 1681, on the death of the duke of Rothes.

The parliament of this year, in which Stair again sat, was memorable for two statutes, one in private and the other in public law. The former, relating to the testing of deeds, was drawn by Stair, and is sometimes called by his name. Although it is susceptible of some improvement, the two centuries during which it has regulated this important branch of practical conveyancing is a testimony to the skill of the draftsman. The other was the infamous Test Act, probably the worst of the many measures devised at this period with the object of fettering the conscience by oaths. Stair also had a minor share in the form which this law finally took, but it was confined to the insertion of a definition of "the Protestant religion"; by this he hoped to make the test harmless, but his expectation was disappointed, and the form in which it emerged from parliament was such that no honest man could take it. Yet, self-contradictory and absurd as it was, the Test Act was at once rigidly enforced. Argyll, who declared he took it only in so far as it was consistent with itself and the Protestant religion, was tried and condemned for treason, and narrowly saved his life by escaping from Edinburgh Castle the day before that fixed for his execution. Stair, dreading a similar fate, went to London to seek a personal interview with the king, who had more than once befriended him, perhaps remembering his services in Holland; but the duke of York intercepted his access to the royal ear, and when he returned to Scotland he found a new commission of judges issued, from which his name was omitted. He retired to his wife's estate in Galloway, and occupied himself with preparing for the press his great work, The Institutions of the Law of Scotland, which he published in the autumn of 1681, with a dedication to the king.

He was not, however, allowed to pursue his legal studies in peaceful retirement. His wife was charged with attending conventicles, his factor and tenants severely fined, and he was himself not safe from prosecution at any moment. A fierce dispute arose between Claverhouse and his son, the master of Stair, relative to the regality of Glenluce; and, both having appealed to the privy council, Claverhouse, as might have been expected, was absolved from all the charges brought against him, and the master was deprived of the regality. Stair had still powerful friends, but his opponents were more powerful, and he received advice to quit the country. He repaired to Holland in October 1684, took up his residence, along with his wife, some of his younger children, and his grandchild, afterwards the field-marshal Stair, at Leyden. While there he published the Decisions of the Court of Session between 1666 and 1671, of which he had kept a daily record, and a small treatise on natural philosophy, entitled Physiologia Nova Experimentalis.

In his absence a prosecution for treason was raised against him and others of the exiles by Sir G. Mackenzie, the lord advocate. He was charged with accession to the rebellion of 1679, the Byehouse plot, and the expedition of Argyll. With the first two he had no connexion; with Argyll's unfortunate attempt he had no doubt sympathized, but the only proof of his complicity was slight, and was obtained by torture. The proceedings against him were never brought to an issue, having been continued by successive adjournments until 1687, when they were dropped. The cause of their abandonment was the appointment of his son, the master of Stair, who had made his peace with James II., as lord advocate in room of Mackenzie, who was dismissed from office for refusing to relax the penal laws against the Catholics. The master only held office as lord advocate for a year, when he was "degraded to be justice clerk "—the king and his advisers finding him not a fit tool for their purpose. Stair remained in Holland till the following year, when he returned under happier auspices in the suite of William of Orange. William, who had made his acquaintance through the pensionary Fagel, was ever afterwards the firm friend of Stair and his family. The master was made lord advocate; and, on the murder of President Lockhart in the following year, Stair was again placed at the head of the Court of Session. An unscrupulous opposition, headed by Montgomery of Skelmorlie, who coveted the office of secretary for Scotland, and Lord Ross, who aimed at the presidency of the court, sprang up in the Scottish parliament; and an anonymous pamphleteer, perhaps Montgomery himself or Ferguson the Plotter, attacked Stair in a pamphlet entitled The Late Proceedings of the Parliament of Scotland Stated and Vindicated. He defended himself by publishing an Apology, which, in the opinion of impartial judges, was a complete vindication. Shortly after its issue he was created Viscount Stair. He had now reached the summit of his prosperity, and the few years which remained of his old age were saddened by private and public cares. In 1692 he lost his wife, the faithful partner of his good and evil fortune for nearly fifty years. The massacre of Glencoe, which has marked the master of Stair with a stain which his great services to the state cannot efface,—for he was undoubtedly the principal adviser of William in that treacherous and cruel deed,—was used as an opportunity by his adversaries of renewing their attack on the old president. His own share in the crime was remote; it was alleged that he had as a privy councillor declined to receive Glencoe's oath of allegiance, though tendered, on the technical ground that it was emitted after the day fixed, but even this was not clearly proved. But some share of the odium which attached to his son was naturally reflected on him. Other grounds of complaint were not difficult to make up, which found willing supporters in the opposition members of parliament. A disappointed suitor brought in a bill in 1693 complaining of his partiality. He was also accused of domineering over the other judges and of favouring the clients of his sons. Two bills were introduced without naming him but really aimed at him,—one to disqualify peers from being judges and the other to confer on the crown a power to appoint temporary presidents of the court. The complaint against him was remitted to a committee, which after full inquiry completely exculpated him; and the two bills, whose incompetency he demonstrated in an able paper addressed to the commission and parliament, were allowed to drop. He was also one of a parliamentary commission which prepared a report on the regulation of the judicatures, afterwards made the basis of a statute in 1695 supplementary to that of 1672, and forming the foundation of the judicial procedure in the Scottish courts down to the present century. On November 29, 1695, Stair, who had been for some time in failing health, died in Edinburgh, and was buried in the church of St Giles.

In the same year there was published in London a small volume with the title A Vindication of tlis Divine Perfections, Illustrating the Glory of God in them by Reason and Revelation, methodically digested,—By a Person of Honour. It was edited by the two Nonconformist divines, William Bates and John Howe, who had been in exile in Holland along with Stair, and is undoubtedly his work. Perhaps it had been a sketch of the "Inquiry Concerning Natural Theology" which he had contemplated writing in 1681. It is of no value as a theological work, for Stair was no more a theologian than he was a man of science, but it is of interest as showing the serious bent of his thoughts and the genuine piety of his character.

It is as a legal writer and a judge that he holds a pre-eminent place amongst many distinguished countrymen belonging to his profession. The full title of his great work, which runs as follows— 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—is fully borne out by the contents, and affords evidence of the advantage Stair had enjoyed from his philosophical training, his foreign travels, and his intercourse with Continental jurists as well as English lawyers. It is no narrow technical treatise, but a comprehensive view of jurisprudence as based on philosophical principles and derived from a Divine Author. But neither does it lose itself in generalities; for it is the work of a lawyer and judge intimately acquainted with every detail in the practical application of law in his native country. Unfortunately for its permanent fame and use, much of the law elucidated in it has now become antiquated through the decay of the feudal part of Scottish law and the large introduction of English law, especially in the departments of commercial law and equity. But its spirit still animates Scottish law and educates Scottish lawyers, and it may be hoped will continue to do so, saving them from being the slaves of precedent or the victims of the utilitarian philosophy which regardc all positive law as conventional and destitute of necessary principles derived from the nature of the world and man.

The Physiologia was favourably noticed by Boyle, and is inter-esting as showing the activity of mind of the exiled judge, who returned to the studies of his youth with fresh zest when physical science was approaching its new birth. But he was not able to emancipate himself from formula? which had cramped the educa-tion of his generation, and had not caught the light which Newton spread at this very time by the communication of his Principia to the Royal Society of London.

Stair was fortunate in his descendants. "The family of Dalrymple," observes Sir Walter Scott, "produced within two centuries as many men of talent, civil and military, of literary, political, and professional eminence, as any house in Scotland." His five sons were all remarkable in their professions. The master of Stair, who became the first earl, was an able lawyer, but still abler politician. Sir James Dalrymple of Borthwick, one of the principal clerks of session, was a very thorough and accurate historical antiquary. Sir Hew Dalrymple of North Berwick succeeded his father as president, and was reckoned one of the best lawyers and speakers of his time. Thomas Dalrymple became physician to Queen Anne. Sir David Dalrymple of Hailes was lord advocate under Anne and George I. Stair's grandson the field-marshal and second earl gained equal credit in war and diplomacy. His great-grandson Sir David Dalrymple, Lord Hailes, also rose to the bench, where he had an honourable character for learning as a civil and humanity as a criminal judge. But his literary exceeded his legal fame. As an honest and impartial historian he laid the foundations of the true narrative of Scottish history, from which all his successors have largely borrowed.

For a fuller account of the life of Stair, see Annals of the Viscount and First and Second Earls of Stair, by J. Murray Graham, and Memoir of Sir James Dalrymple, First Viscount Stair, 1875, by AE. J. G. Mackay. (AE. M.)

The above article was written by: Aeneas J. G. Mackay, LL.D.

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