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GRANT, SIR FRANCES, of
Cullen, a judge and political writer, was the son of Archibald Grant of
Bellinton, [Such is his paternity, as given in Haig and Brunton’s
History of the College of Justice, on the authority of Milne’s
genealogical MS. Wodrow, in one of his miscellaneous manuscripts, says, he
understood him to be the son of a clergyman.] in the north of Scotland, a
cadet of the family of Grant of Grant, the various branches of which, at
that period, joined the same political party, which was supported by the
subject of this memoir. He was born about the year 1660, and received the
elementary part of his education at one of the universities of Aberdeen.
He was destined for the profession of the law; and as at that period there
were no regular institutions for the attainment of legal knowledge in
Scotland, and the eminent schools of law on the continent furnished
admirable instruction in the civil law of Rome, on which the principles of
the greater part of the Scottish system are founded, - along with most of
the aspirants at the Scottish bar, Mr Grant pursued his professional
studies at Leyden, where he had the good fortune to be under the auspices
of the illustrious commentator John Voet; an advantage by which he is said
to have so far profited, that the great civilian retained and expressed
for years afterwards a high opinion of his diligence and attainments, and
recommended to his other students the example of his young Scottish pupil.
He seems indeed to have borne through his whole life a character
remarkable for docility, modesty, and unobtrusive firmness, which procured
him the countenance and respect of his seniors, and brought him honours to
which he did not apparently aspire. Immediately on his return to Scotland,
and in consequence of the exhibition of his qualifications at the trial
preparatory to his passing at the bar, we find him attracting the notice
of Sir George M’Kenzie, then lord advocate, at the head of the Scottish
bar, and in the full enjoyment of his wide-spread reputation; a
circumstance creditable to the feelings of both, and which must have been
peculiarly gratifying to the younger man, from the circumstance of
his early displaying a determined opposition to the political measures of
the lord advocate. Mr Grant was only twenty-eight years of age, when he
took an active part in that memorable convention which sat in the earlier
part of the year 1689, to decide on the claims of the prince of Orange;
and when older politicians vacillated, and looked to accident for the
direction of their future conduct, he boldly adopted his line of politics,
and argued strongly, and it would appear not without effect, that the only
fit course to pursue, was to bestow on the prince the full right of
sovereignty, with those limitations only which a care for the integrity of
the constitution might dictate, and without any insidious provisions which
might afterwards distract the nation, by a recurrence of the claims of the
house of Stuart. His zeal for the cause he had adopted prompted him at
that juncture to publish a small controversial work, which he called,
"The Loyalist’s Reasons for his giving obedience, and swearing
allegiance to the present Government, as being obliged thereto, by (it
being founded on) the Laws of God, Nature, and Nations, and Civil, by F.
G." In the freedom of modern political discussion, the arguments
which were produced as reasons for a change of government would appear a
little singular; the whole is a point of law tightly argued, as if fitted
to meet the eye of a cool and skilful judge, who has nothing to do but to
discover its accordance or disagreement with the letter of the law. The
ground, however, upon which he has met his adversaries is strictly of
their own choosing, and the advocate for a revolution seems to have
adhered with all due strictness to relevancy and sound law. He founds his
arguments on certain postulates, from which, and the facts of the case, he
deduces that king James had forfeited his superiority, by committing a
grand feudal delict against his vassals; and the throne being thus
vacated, he shows, in several theses, that the prince of Orange had made a
conquest of the same, and had relinquished its disposal to the country,
and the country having thus the choice of a ruler, ought to bestow the
government on the generous conqueror. The whole is wound up by several
corollaries, in a strictly syllogistic form. The reasonings are those of
an acute lawyer, well interspersed with authorities from the civil and
feudal law; and it may easily be presumed, that such reasoning, when
applied judiciously and coolly to the subject, had more effect on the
restricted intellect of the age, than the eloquence of Dalrymple, or the
energy of Hamilton. Indeed the effect of the work in reconciling the
feudalized minds of the Scottish gentry to the alteration, is said to have
been practical and apparent; and while the author received honours and
emoluments from the crown, his prudence and firmness made him respected by
the party he had opposed.
The tide of Mr Grant’s
fortune continued to flow with steadiness from the period of this
successful attempt in the political world, and he was constantly in the
eye of government as a trustworthy person, whose services might be useful
for furthering its measures in those precarious times. With such views, a
baronetcy was bestowed on him, unexpectedly and without solicitation, in
the year 1705, preparatory to the general discussion of the union of the
kingdoms; and after the consummation of that measure, he was raised to the
bench, where he took his seat as lord Cullen, in the year 1709. He is said
to have added to the numberless controversial pamphlets on the union; and
if certain pamphlets called "Essays on removing the National
prejudices against a union," to which some one has attached his name,
be really from his pen, (which, from the circumstance under which they
bear to have been written, is rather doubtful,) they show him to have
entered into the subject with a liberality of judgment, and an extent of
information seldom exhibited in such controversies, and to have possessed
a peculiarly acute foresight of the advantages of an interchange of
commerce and privileges. Lord Cullen was a warm friend to the church of
Scotland, a maintainer of its pristine purity, and of what is more
essential than the form, or even the doctrine of any church, the means of
preserving its moral influence on the character and habits of the people.
"He was," says Wodrow, "very useful for the executing of
the laws against immorality." The power of the judicature of a nation
over its morality, is a subject to which he seems to have long paid much
attention. We find him, in the year 1700, publishing a tract entitled,
"A brief account of the Rise, Nature, and Progress of the Societies
for the Reformation of manners, &c. in England, with a preface
exhorting the use of such Societies in Scotland." This pamphlet
embodies an account of the institution and regulation of these societies,
by the Rev. Josiah Woodward, which the publisher recommends should be
imitated in Scotland. The subject is a delicate and difficult one to a
person who looks forward to a strict and impartial administration of the
law as a judge, a duty which it is dangerous to combine with that of a
discretionary censor morum; but, as a private individual, he
proposes, as a just and salutary restraint, that such societies should
"pretend to no authority or judicatory power, but to consult and
endeavour, in subserviency to the magistracy, to promote the execution of
the law, by the respective magistrates;" a species of institution
often followed by well-meaning men, but which is not without danger. This
tract is curious from its having been published for gratis distribution,
and as perhaps the earliest practically moral tract which was published
for such a purpose in Scotland. The strict religious feeling of the author
afterwards displays itself in a pamphlet, called "A short History of
the Sabbath, containing some few grounds for its morality, and cases about
its observance; with a brief answer to, or anticipation of, several
objections against both;" published in 1705. This production
aims its attacks at what the author says are improperly termed the
innocent recreations of the Sabbath. It has all the qualifications which
are necessary to make it be received within the strictest definition of a
polemical pamphlet: authorities are gathered together from all quarters of
the world; the sacred text is abundantly adduced; and laboured parallels
are introduced, in some cases where there is little doubt of the
application, in others where it is somewhat difficult to discover it.
Controversial tracts are frequently the most interesting productions of
any age: they are the ebullition of the feeling of the time. Called out,
generally, by the excitement of a critical state of affairs, and unguarded
by the thought and reflection bestowed on a lengthened work, they are,
next to speeches accurately reported, the best evidence posterity
possesses of the character of a public writer. Those which we have already
referred to are anonymous; but we have every reason to believe they have
been attributed to the proper quarter; and before we leave the subject, we
shall take the liberty of referring to one more tract, which we happened
to pick up in the same situation, on a subject which, some years ago,
deeply occupied the attention of the public, in a position converse to
that in which it was presented to the subject of our memoir. The pamphlet
is directed against the restoration of church patronage; and it will be
remarked that, from the date of its publication, 1703, it appeared several
years previously to the passing of the dreaded measure; it is entitled.
"Reasons in defence of the standing Laws about the right of
Presentation in Patronages, to be offered against an Act (in case it be)
presented, for the alteration thereof: by a member of Parliament."
The same spirit of acute legal reasoning on rights and property, and the
means by which they are affected, to be found in his arguments on the
revolution, here, perhaps with better taste, characterize the author; and
they are, at all events, merely the conventional colouring of sound and
liberal views maintained with discretion and propriety.
Lord Cullen had, as his
companions on the bench, Cockburn of Ormiston, M’Kenzie of Royston,
Erskine of Dun, and Pringle of Newhall, under the presidency of Sir Hew
Dalrymple, son to the celebrated viscount Stair. In the course of
seventeen years, during which he filled the responsible station of a
judge, and the more than ordinarily responsible situation of a Scottish
judge, he is asserted by his friends to have been impartial in the
interpretation of the laws, vigilant in their application, and a protector
of the poor and persecuted, and, what is more conducive to the credit of
the assertion, no enemy has contradicted it. A character of his manner and
qualifications is thus given in rather obscure terms by Wodrow:—"His
style is dark and intricate, and so were his pleadings at the bar, and his
discourses on the bench. One of his fellow senators tells me he was a
living library, and the most ready in citation. When the lords wanted any
thing in the civil or canon law to be cast up, or acts of parliament, he
never failed them, but turned to the place. He seemed a little ambulatory
in his judgment as to church government, but was a man of great piety and
devotion, wonderfully serious in prayer, and learning the word." It
is not improbable, that by the terms "dark and intricate," the
historian means, what would now be expressed by "profound and
subtle." The confidence which his friends, and the country in
general, reposed in his generosity and justice, is said to have been so
deeply felt, that on his intimating an intention to dispose of his
paternal estate, and invest the proceeds, along with his professional
gains, in some other manner, many decayed families offered their shattered
estates for his purchase, in the hope that his legal skill, and
undeviating equity, might be the means of securing to them some small
remnant of the price—the condition of incumbrance to which they had been
long subjected, and the improbability of their being enabled, by the
intricate courses of the feudal law, to adjust the various securities,
forbidding them to expect such a result by any other measure. On this
occasion he purchased the estate of Monymusk, still the property of his
descendants, and it is nobly recorded of him, that he used his legal
acuteness in classing the various demands against the estate, and
compromising with the creditors, so as to be enabled to secure a
considerable surplus sum to the vender of a property which was burdened to
an amount considerably above its value.
Although acute, however, in
his management of the business of others, lord Cullen has borne the
reputation of having been a most remiss and careless manager of his own
affairs; a defect which seems to have been perceived and rectified by his
more prudent and calculating spouse, who bore on her own shoulders the
whole burden of the family matters. It is narrated that this sagacious
lady, finding that the ordinary care which most men bestow on their own
business was ineffectual in drawing her husband’s attention to the
proper legal security of his property, was in the habit, in any case where
her mind misgave her as to the probable effect of any measure she wished
to adopt, of getting the matter represented to him in the form of a
"case," on which his opinion was requested as a lawyer.
This excellent and useful
man died at Edinburgh on the 23d of March, 1726, of an illness which
lasted only two days, but which, from its commencement, was considered
mortal, and thus prepared him to meet a speedy death. His friend, Wodrow,
stating that the physician had given information of his mortal illness to
lord Cullen’s brother-in law, Mr Fordyce, thus records the closing
scene:—"Mr Fordyce went to him, and signified so much. My lord,
after he had told him, smiled and put forth his hand and took my informer
by the hand, and said, Brother, you have brought me the best news ever I
heard, and signified he was desirous for death, and how welcome a message
this was. He had no great pain, and spoke to the edification of all who
came to see him, and that day, and till Wednesday at 12, when he died, was
without a cloud, and in full assurance of faith."
Besides the works already
mentioned, lord Cullen published "Law, Religion, and Education,
considered in three Essays," and "A Key to the Plot, by
reflections on the rebellion of 1715." He left behind him three sons
and five daughters. His eldest son, Sir Archibald, for some time
represented the shire of Aberdeen in parliament. The second, William, was
a distinguished ornament of the Scottish bar. He was at one time
procurator to the church, and principal clerk to the General Assembly. In
1737, he was appointed solicitor-general, and in 1738, lord advocate, an
office which he held during the rebellion of 1745; a period which must
have tried the virtue of the occupier of such a situation, but which has
left him the credit of having, in the words of lord Woodhouselee,
performed his duties, "regulated by a principle of equity, tempering
the strictness of the law." He succeeded Grant of Elchies on the
bench in 1754, taking his seat as lord Prestongrange, and afterwards
became lord justice clerk. He was one of the commissioners for improving
the fisheries and manufactures of Scotland, and afterwards one of the
commissioners for the annexed estates. He died at Bath, in 1764. |
