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LAUDER, (SIR) JOHN, lord
Fountainhall, an eminent lawyer and statesman, was born at Edinburgh, on the
2nd of August, 1646. [Register of baptisms in Edinburgh. For
this, and all the other information relative to lord Fountainhall, not to be
found in printed works, we are obliged to a very curious MS. collection
regarding him, made by his descendant, the late Sir Thomas Dick Lauder, of
which that gentleman kindly permitted us the use.] His father was John,
afterwards Sir John Lauder, baronet, a merchant and baillie of Edinburgh, a
younger branch and afterwards chief of the family of Lauder of Bass and
Lauder. The subject of our memoir was his eldest son, by his second marriage
with Isabel Ellis, daughter of Alexander Ellis of Mortonhall. By this wife
he had fourteen sons and two daughters; by a previous marriage he had three
children, and by a third wife, of whom mention will be made hereafter, he
had four sons and two daughters. Of the early education of young Lauder, we
know nothing, with the exception of a passing memorandum in his voluminous
memorials of legal matters, which shows that he had passed some time at the
university of Leyden, at that time the principal continental resort of
students at law. "The university of St. Andrews," he says, "claims to be
freed from paying excise for all drink furnished to the scholars, and that
upon the general privilege competent to all universities by custom. I
remember we enjoyed that privilege at Leyden, after our immatriculation."
Having accomplished his preparatory studies, he passed as an advocate on the
5th of June, 1668, and commenced the practical pursuit of his
profession with vigour, after having previously, as his early proficiency as
a lawyer shows us, prepared his mind by intense and accurate study. "From my
admission as an advocate," he says, "in June, 1668, I began to mark the
decisions of the court of session;" and it is to his uninterrupted industry
in this occupation that we owe that valuable mass of precedents, known by
the name of "Fountainhall’s Decisions," published in two volumes folio, and
lately more fully re-edited from the original manuscripts. In a case which
he reports during his earlier years at the bar, strong internal evidence,
arising from the use of the first person singular—the unusual prolixity of
the speech, [Extending from p. 642, to 649, of Brown’s Supplement, where it
is styled "Fountainhall’s Speech for the Pursuers."] and the
absence of the name of the counsel; shows himself to have acted in that
capacity. This action was at the instance of the town of Stirling, against
the unfreemen in Falkirk and Kilsyth, bearing date January 18, and June 25,
1672. Lauder’s speech is a curious specimen of the mixed logical and
rhetorical eloquence of the forensic pleading of the age, when the judges
acted more as a deliberative assembly, than as a body of lawyers bound to
the letter of certain enactments; and the person who addressed them, if he
could not sway their passions as those of a modern jury are affected, had a
wide field of influence in their reason or prejudices. Contrasted with the
restricted legal pleadings of the present day, the following commencement on
the part of "the learned gentleman for the prosecution," would appear very
singular: "My lord commissioner, may it please your grace, what happiness
and cheerfulness the eminent and most eloquent of all the apostles, St Paul,
expresses, when he is put to plead his cause before Festus and Agrippa,
because the one had long been a judge in his nation, and the other was
expert in all the manners and customs of the Jews, the same gladness
possesses the town of Stirling, and with them the whole royal burghs, that
they are to plead in behalf of their privileges this day, before your grace,
the great patron and conservator of them." It is to be remarked, that, in
this case, Lauder is pleading for the exclusive privileges of burghs, and in
favour of monopolies. He opens his speech with a sketch of the arguments of
his adversary, on which, probably with a wish to caricature them, he has
bestowed an amiable liberality of doctrine, which Adam Smith could not have
excelled, and told many politico-economical truths, which few had then
imagined. His own answers to the principles he thus beautifully lays down,
sound harsh and jarring in comparison, although they were far more accordant
to the principles of the time. "Do not," he says with considerable tact,
"think it a light matter to rob the royal burghs of their privileges, which
are become their property by as good a title as any of you bruik your lands
and estate. By what hand ye shall communicate these liberties (now called in
question,) to the defenders, by that same shall ye lop off the royal burghs
from being the third estate in the kingdom. Remember that a threefold cord
ought not to be easily broken. Consider that lamentable confusion may follow
on loosing one pin of the government; that the touching such a fundamental
sacred constitution may unhinge the whole; that government is like a sheaf
of arrows fast bound, pull out one, all will follow and fall to the ground;
and how terribly dangerous such an innovation may be." It will be held in
mind, however, that each counsel was feed for the principles he maintained,
and that the genuine opinions of both may have almost united in "a happy
medium." The speech, on the whole, is full of classical learning, and
statistical information, and cannot fail to convey a pleasing idea of the
intelligence and talent of a forensic orator of the seventeenth century.
Soon after this period, we
find the subject of our memoir connected with one of those constitutional
acts of resistance, for which the bar of Scotland has only, in a very few
instances, been celebrated. It is well known to those acquainted with
Scottish history, that a private litigation betwixt the earls of Dunfermline
and Callender interested the feelings or cupidity of Lauderdale, who was
determined to influence the decision in favour of the former, by swaying the
judges through his personal appearance on the bench, in virtue of his
honorary title of "an extraordinary lord of session." The affair was managed
by having the cause prematurely called in court, in defiance of statute;
and, a decision being come to in favour of the pursuer, Callender lodged an
appeal to parliament, a novel procedure, which it was the interest of the
king and of the judges to stifle at its first appearance. There are few who
will not acknowledge, that a final appeal of litigated cases to the
legislative tribunal of the country, is, if not a preventive, at least a
check to the consequences of influence or prejudice in inferior
judicatories. The absence of such a principle, and the decay of jury trial
in Scotland, had both originated from the same cause. Parliament was
anciently the great jury of the nation, and, with the king as its president,
the court of last resort in all litigations: but becoming, from the nature
of the inferior courts, overburdened with judicial business, which a large
body of men could not easily accomplish, the full powers of parliament, in
this respect, were bestowed on a judicial committee called the Lords
Auditors, from which, through a gradation of changes, was formed the court
of session, which thus, by its origin, united the duties of the jury, the
law court, and the legislative body of last resort. In these circumstances,
it was not difficult for government to discover, that a measure so
unpleasing to itself, was a daring innovation of the "constitution." The
counsel for the appellants, Lockhart and Cunningham, were desired to make
oath regarding their share in this act of insubordination, and not only
refusing, but maintaining the justice of appeals, were summarily prohibited
the exercise of their profession. The members of the bar united to resent
the insult and protect their rights, and fifty advocates, (probably very
nearly the whole number then at the bar,) of whom Lauder was one,
[Mackenzie’s Memoirs, 293, when Lauder, among others, subscribes an address
by the debarred advocates to the privy council. For a farther account of the
affair, see the memoirs of Sir G. Lockhart, and Sir G. Mackenzie.] followed
their distinguished brethren to retirement, and at the instance of
Lauderdale, were banished twelve miles from Edinburgh. After a year’s exile,
they were allowed to return, having managed to effect a compromise with the
court. In another appeal, which was attempted not long after, the appellant
was persuaded to trust to the effect of recalling his appeal; but the
judges, on whom the mixture of intimidation and flattery appears to have
produced little effect, adhered, notwithstanding an implied promise to the
contrary, to their previous interlocutor. "And so," remarks Lauder in
reference to the case, "he was either ill or well served for his
complimenting them. But the times were such that no rational man could
expect a rectification from them of what had once, even through unawares,
escaped them. When their honour was once engaged at the stake, they blushed
to confess what is incident to humanity itself, nam humanum est errare."
With regard to his own sufferings for judicial integrity, he remarks, "I
have few or no observations for the space of three sessions and a half, viz,
from June, 1674, till January, 1676, in regard I was at that time debarred
from any employment, with many other lawyers, on the account we were unclear
to serve under the strict and servile ties seemed to be imposed on us by the
king’s letter, discharging any to quarrel the lords of session their
sentences of injustice, and was not restored till January, 1676." After his
restoration to his powers, his collection of decisions shows that he was a
well employed and active counsellor.
His next appearance in public
life, is at the celebrated trial of the earl of Argyle in 1681, for a
treasonable explanation of the test, for whom Lauder acted as counsel, along
with Lockhart and six others. The vulgar prejudice against vindicating a
person accused of any crime, together with the cautious vigilance of the
crown, trammelled for a long time the legitimate powers of counsel in
Scotland, and especially in cases of treason, brought their duty so much
under the arbitration of the court, that a practice prevailed by which it
was considered illegal to defend a person accused of such a crime, without
the permission of government; and therefore every prudent advocate declined
interfering till he could produce a royal warrant. In the present instance,
Argyle’s counsel had prepared and signed, as lawyers, an "opinion" that his
explanation of the test was a legal one. The consequence of this, as
detailed in Lauder’s own words, was, that "The councell named a committee to
call my lord Argyle’s eight advocates, viz, [The record shows him to have
been returned of the following dates: 23d April, 1685; 29th
April, 1686; 3rd September, 1690; 9th May, 1695; 8th
September, 1696; 21st May, 1700; 6th May, 1703; 6th
July, 1704; 28th June, 1705; 3rd October, 1706. –Act.
Parl. vols. viii, ix, x, xi.]Sir George Lockhart, Sir John Dalrymple,
Messieurs Walter Pringle, David Thoirs, Patrick Home, John Stewart, James
Graham, and myself, for subscribing an opinion that his explanation
contained nothing treasonable in it. We were examined upon oath; and it was
called a new practice to sign opinions with us, especially in criminall
cases importing treason, and a bad preparative; though lawyers should not be
prelimited nor overawed freely to plead in defence of their clients; the
privy council having authorized us to that purpose. Tho’ some aimed at
imprisoning and depriving us, yet, after we had spoke with his royal hynes,
he was pleased to pass it; tho’, he said, if any bad use were made of our
signed opinion, by spreading it abroad in England to incense them, or
reproach the duke or the judges, he could not but blame us. It was
afterwards printed in England, and Argyle’s triall, with another piece,
called a Scotch Mist to wet ane Englishman to the Skin: being sundry
animadversions on Argyle’s process."
Although his political
proceedings do not seem to have been calculated to bring him within the
atmosphere of court favour, he early received the dignity of knighthood; at
what precise period is not known, but apparently previous to the year 1681.
Much about the same period, or some years afterwards, he appears to have
acted as one of the assessors to the city of Edinburgh; a circumstance
discoverable from his remarking, that on the 4th of November, 1685, the
other gentleman who held that office was removed, from some cause connected
with burgh politics, while he was retained.
In 1685, Sir John Lauder
became a member of the Committee of Estates; and for more than twenty years,
until the treaty of union, he appears from the journals of the house to have
performed his parliamentary duties with activity and zeal. He was returned
for the shire of Haddington on the 23rd of April, along with Sir John
Wedderburn of Gosford. His election was disputed by Sir James Hay of Simplum;
and the committee on controverted elections having reported that the votes
were equally divided, a new election was proposed, when one of the voters
for Sir James Hay being discovered to have given his vote after the election
had been formally terminated, Sir John Lauder was declared the sitting
member by a majority of one. Lauder was early discovered in his
legislatorial, as he had been in his professional capacity, not to be a
docile and obedient supporter of the measures of government. In the first
parliament which he attended, he refused to vote for the forfaulture of the
earl of Melville, who had fled from the wrath of government after the
discovery of the Rye-house plot. [Act. Parl. ix. Ap. 45.]
He was a zealous friend to the
protestant faith, when there were few in Scotland who risked an open defence
of the religion to which they were so ardently attached. The government, who
found it difficult to make the protection of protestantism a crime, had
nevertheless power enough to harass him. "On May 1st, 1686," he says, "Mr
James Young, son to Andrew Young, writer to the signet, is apprehended by
captain Graham, and kept in the court of guard, being delated as a copier
and dispenser of a paper, containing reasons why the parliament should not
consent to the dispensing with the penal laws against papists, and
reflecting in the end on such protestants as had apostatized! and for having
verses against the bishop of St Andrews and bishop of Edinburgh; and he
having in his examination named John Wilson and John Nasmyth, my servants,
[The term "servant" is invariably used by Lauder and other lawyers of the
period for "clerk."] as bringers of these papers to his chamber,
the chancellor signed an order to captain Graham to arrest them,
apprehending possibly to reach myself for libelling, as he termed it. But
they having named their authors from whom they had them, were liberated, and
their authors, viz. Mr John Ellis, Robert Keill, &c. were cited."—"My two
servants," he afterwards says, "being imprisoned, and I threatened
therewith, as also that they would seize upon my papers, and search if they
contained anything offensive to the party then prevailing, I was necessitat
to hide the manuscript, and many others, and intermit my historick remarks
till the Revolution in the end of 1688, after which I began some observes of
our meeting of estates of parliament held in 1690-93 and 95, and other
occurrents forreign and domestick, briefly summed up, and drawin togither
yeirly, (but not with such enlargements as I have used heir,) and are to be
found up and downe in several manuscripts besyde me, to be reviewed
cum dabit otium Deus."
When James made his
well-known recommendation to the parliament of Scotland to rescind the penal
statutes against Roman catholics, Lauder joined in the debate on the
appropriate answer, in a spirit of moderation, which, according to the
amount of his charity, the reader may attribute to prudence, or liberality,
or both united. On the question, what term the parliament should bestow on
those who professed the Romish faith, "I represented," says he, " that there
was no man within the house more desirous to have these odious marks of
division buried, and that we might all be united under the general name of
Christian. It is true the names under which they were known in our law were
the designations of the papistical kirk, heresy, error, superstition, popish
idolatry, and maintainers of the cruel decrees of the council of Trent; and
though it was not suitable to the wisdom and gravity of parliament to give
them a title implying as if they were the true church, and we but a sect,
yet I wished some soft appellation, with the least offence, might be fallen
on, and therefore I proposed it might run thus, those commonly called
Roman. Catholics; that the most part of our divines calls us the
catholics, and so Chamier begins his Panstratia, ‘Vertuntur controversiae,
Catholicos inter et Papistas.’ The chancellor called this a
nicknaming of the king, and proposed it might run in general terms thus,
as to those subjects your majesty has recommended to us, &c." The motion
of the archbishop of Glasgow, that they should be simply termed "Roman
Catholics,"—a repetition of the king’s own words—was finally carried. But
however he might be inclined to be conciliatory about epithets, Lauder
resisted with firmness the strong attempt made by James and his
commissioner, the earl of Moray, towards the conclusion of the parliament,
finally to abolish the penalties against Roman catholics. In his manuscripts
are preserved seventeen closely written pages of matter on this subject,
entitled "A Discourse in defence, whereof part was spoken in the parliament,
of the Penal Laws against Popery, and why the Toleration Act should not
pass; and the rest was intended, but was prevented by the sudden rising of
the parliament." Frequent application, often in the most contemptible of
causes, has made the arguments contained in this able document too hackneyed
to please a modern taste; an impartial posterity, however, will reflect,
that though liberal feeling has often been disgusted by a similar discussion
of a question, which to this day bears the same name, the supporters of the
penal laws against Roman catholics in the reign of James the Seventh, were
not striking against freedom of opinion; that they were a party which had
just halted from a battle for their own privileges and liberties, and once
more beheld them sternly menaced; that they did not wish to dictate to the
consciences of an oppressed body of men, but were boldy preserving the
purity of their own, by using the only means in their power to prevent the
resuscitation of a church which sat in judgment over the mind, and was armed
with a sword to compel obedience to its dictates. "It were," says Lauder, "a
strange excess and transport of Christian lenity and moderation, to abolish
our laws against papists, who, by the principles and practice of their
church, may show no favour to us; but will turn the weapons we arm them with
to the total subversion of our religion:" words which had a meaning when a
bigoted papal monarch sat on the throne, and the horrors of a high
commission were in too fresh recollection; but which have none when used
towards a poor and powerless body, desiring to enjoy their own religion in
peace.
We must not omit to mention,
that at the trial of the duke of Monmouth in 1686, Sir John Lauder and other
two counsel were employed to protest for the interest of the duchess, who
was absolute proprietrix of the estate enjoyed by her husband. The criminal
court would not condescend to receive a protest in a matter purely civil;
but did condescend to forfeit the property of the duchess for the crime of
her husband. It was afterwards, however, given back by the king.
We pause in the history of
his political career, to record a few domestic events which characterized
the life of Sir John Lauder. He had been married on the 21st January, 1669,
to Janet Ramsay, daughter of Sir Andrew Ramsay, lord Abbotshall, whose
father was the celebrated Andrew Ramsay, minister of the Grey-friars’
church. This lady, after bearing him eleven children, died in 1686. Her
husband has thus affectionately noted the event, "27 Februarii, 1686, at
night happened mors charissimae meae conjugis mihi amarissima et
luctuosissima; so there is little to the 10th of March, I not having
come abroad till then." On the margin is written nota non obliviscenda.
In the curious familiar memorials which he has left behind him, we find
frequent instances of that warm domestic feeling which is often the private
ornament of men illustrious for their public and political intrepidity." To
any disaster in his numerous family—for he had seven children by a second
wife—we sometimes meet such simple allusions as the following, buried among
the legal notanda, or the political events of that feverish period: "17
Decembris, 1695, I entered on the bills; and my dear child Robert dying this
day, the observes are the fewer, in respect of my absence for two days, and
my other affairs, which diverted my constant attention that week." Again,
"21 July, 1696, Tuesday: my dear son William dying this day, I was absent
till his burial was over." Sir John was a second time married on the 26th of
March, 1687, to Marion Anderson, daughter of Anderson of Balram, who
survived him.
The domestic tranquillity of
this excellent man was long harassed by the machinations of a
step-mother,—his father’s third wife, of whose heteroclite proceedings we
must give a slight sketch. This woman, Margaret Ramsay, daughter to George
Ramsay of Iddington, to whom Sir John Lauder’s father was united in 1670, at
the ripe age of 86, prevailed on her husband to procure a baronet’s title,
which he obtained in July, 1688, and the lady, showing that she had more
important designs than the gratification of female vanity, managed, by an
artifice for which parental affection can scarcely form an excuse, to get
the patent directed to her own son George, and the other heirs male of her
body, without any reference to the children of the previous marriage.
A document among the papers
of Sir John Lauder, being a draft of an indictment, or criminal libel, at
the instance of the lord advocate, before the privy council, against the
lady and her relations, gives us his own account of the transaction: it is
dated 1690, and commences "Memorandum for Sir John Lauder, to raise ane
libell at privy counsell at the instance of Sir J. D. (Sir John Dalrymple),
his majesty’s advocate, for his majesty’s interest, and of Sir John Lauder,
Mr William and Andrew Lauders, his brothers german, against Margaret Ramsay,
&c." Neither the Medea of Euripides, nor the old ballad of "Lord Randal my
Son," gives a more beau ideal picture of the proceedings of the
"cruel step-dame," than this formidable document. It accuses her of having
"wearied her husband by her excessive importunity and ambition to procure
and accept ane knight baronet’s patent;" that, having managed through her
relations to direct the destination in the manner we have mentioned, the old
gentleman immediately sent the patent to Mr Robert Lauder to be altered, and
Mr Robert, certainly not having the fear of what are awfully termed
consequences before his eyes, proceeded to his duty, when the enraged lady
"with several others of her accomplices, intending by force to have taken
the patent from him, threatened to see his heart’s blood if he did not
deliver it presently." Farther, "to fright her husband to comply with her
unreasonable and unjust demands, she threatened that she would starve
herself if that patent was not taken to her son, and that she would kill
herself if she saw any of the complainers come near the house, and if he did
not absolutely discharge them his presence;" and still more emphatically,
"she tore the clothes off her body, and the hoods off her head, and sware
fearful oaths, that she would drown herself and her children, and frequently
cursed the complainers, and defamed and traduced them in all places, and
threatened that she hoped to see them all rooted out, they and their
posterity, off the face of the earth, and her children would succeed to
all."’ A decree appears to have been obtained against the defenders in the
privy council; and the patent being reduced in the civil court, a new
destination was obtained, by which Sir John Lauder succeeded to the family
title and estates on the death of his father in 1692.
Meantime, the Revolution had
brought him a relief from the dangers and difficulties of opposition, and
the hope of preferment and influence. He was appointed a lord of session,
and took his seat with the title of "lord Fountainhall," on the 1st
November, 1659. On the 27th of January following, he was also nominated a
lord of justiciary. In 1692, Sir John Lauder was offered the lucrative and
influential situation of lord advocate; but the massacre of Glencoe, an act
characteristic of a darker age and a bloodier people, had just taken place;
the lukewarmness, if not criminality of the government, formed an
impediment, and to his honour be it mentioned, he would not accept the
proffered situation except on the condition of being allowed to prosecute
the murderers. At the time when the Scottish parliament found it necessary
to strike a blow for the property of the nation invested in the Darien
scheme, it was proposed that the parliament should vote an address to the
king, calling on him to vindicate the honour of Scotland, and protect the
company. The more determined spirits in that exasperated assembly demanded
an act as the legitimate procedure of an independent body. Among these was
Lauder. The address was carried by 108 to 84, and a body of those who voted
otherwise, with Hamilton and Lauder at their head, recorded their dissent.
[Act. Parl., x. 269.] He began at this period to show opposition to the
measures of government. Along with Hamilton, he recorded a dissent from the
motion of the high commissioner, for continuing for four months the forces
over and above the 3000, which constituted the regular establishment. [Act.
Parl., x. 294.] He attended parliament during the tedious
discussion of the several articles of the union, and we find his protest
frequently recorded, although to one or two articles which did not involve
the principle of an incorporating union, he gave his assent. In the final
vote, his name is recorded among the noes.
Soon after the union, on the
appointment of circuits, old age interfered with lord Fountainhall’s
performance of all his laborious duties, and after some unwillingness on the
part of royalty to lose so honest a servant, he resigned his justiciary
gown, and a short time before his death, he gave up his seat in the court of
session. The good and useful man died in September, 1722, leaving to his
numerous family a considerable fortune; chiefly the fruit of his own
industry. On a character which has already spoken for itself through all the
actions of a long life, we need not dilate. His high authority as a rational
lawyer is well known to the profession. His industry was remarkable. His
manuscripts, as extant, fill ten folio and three quarto volumes; and there
is reason to believe, from his references, that several were lost.
In 1822, was published
"Chronological Notes of Scottish Affairs from 1680 till 1701, being chiefly
taken from the Diary of lord Fountainhall." Unfortunately the volume is
not taken from the original manuscript, but from an abridged compilation
by a Mr Milne, a writer in Edinburgh; a fierce Jacobite, who has disturbed
the tranquil observations of the judge with his own fiery additions,
apparently judging that his cause might be well supported by making an
honest adversary tell falsehoods in its favour. A genuine selection from the
historical manuscripts of lord Fountainhall would be a useful addition to
our historical literature. |
