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PUBLICATIONS OF THE SCOTTISH HISTORY SOCIETY, VOLUME XXXVI

LAUDER OF FOUNTAINHALL'S JOURNALS

MAY 1900



JOURNALS OF SIR JOHN LAUDER LORD FOUNTAINHALL WITH HIS OBSERVATIONS ON PUBLIC AFFAIRS AND OTHER MEMORANDA

1665-1676

Edited, with Introduction and Notes, by DONALD CRAWFORD Sheriff of Aberdeen, Kincardine, and Banff



CONTENTS

INTRODUCTION

JOURNALS:—

I

Journal in France, 1665-1667,

II

1. Notes of Journeys in London. Oxford, and Scotland, 1667-1670,

2. Notes of Journeys in Scotland, 1671-1672,

3. Chronicle of events connected with the Court of Session, 1668-1676,

4. Observations on Public Affairs, 1669-1670,

III

APPENDIX

i. Accounts, 1670-1675,

ii. Catalogue of Books, 1667-1679,

iii. Letter of Lauder to his Son,



PORTRAITS

I. LORD FOUNTAINHALL

II. SIR JOHN LAUDER, first Baronet, Lord Fountainhall's father

III. JANET RAMSAY, first wife of Lord Fountainhall

IV. SIR ANDREW RAMSAY, Lord Abbotshall

All reproduced from pictures in the possession of Lady Anne Dick Lauder.



INTRODUCTION

THE MANUSCRIPTS

There are here printed two manuscripts by Sir John Lauder, Lord Fountainhall, and portions of another. The first[1] is a kind of journal, though it was not written up day by day, containing a narrative of his journey to France and his residence at Orleans and Poictiers, when he was sent abroad by his father at the age of nineteen to study law in foreign schools in preparation for the bar. It also includes an account of his expenses during the whole period of his absence from Scotland. The second,[2] though a small volume, contains several distinct portions. There are narratives of visits to London and Oxford on his way home from abroad, his journey returning to Scotland, and some short expeditions in Scotland in the immediately following years, observations on public affairs in 1669- 70, and a chronicle of events connected with the Court of Session from 1668 to 1676; also at the other end of the volume some accounts of expenses. The third[3] may be described as a commonplace book, for the most part written during the first years of his practice at the bar and his early married life, but it also contains some notes of travel in Fife, the Lothians, and the Merse in continuation of those in MS. H., and a list of the books which he bought and their prices, brought down to a late period of his life. These manuscripts have been kindly made available to the Scottish History Society by the owners. The first is in the Library of the University of Edinburgh. The second is the property of the late Sir William Fraser's trustees. The third has been lent by Sir Thomas North Dick Lauder, Fountainhall's descendant and representative.

[1] Referred to as MS. X.

[2] Marked by Fountainhall H.

[3] Marked by Fountainhall K.

It was Lord Fountainhalls practice, during his whole life, to record in notebooks public events, and his observations upon them, legal decisions, and private memoranda. He kept several series of notebooks concurrently with great diligence and method. In all of those which have been preserved there is more or less matter of value to the student of history. But at his death his library was sold by public auction. The MSS. were dispersed, though their existence and value was known to some of his contemporaries.[4] Some are lost, in particular the series of Historical Observes, 1660-1680, which, judging from the sequel, which has been preserved and printed by the Bannatyne Club, would have been of great value. According to tradition the greater part of what has been recovered was found in a snuff-shop by Mr. Crosby the lawyer, the supposed original of Scott's Pleydell, and purchased at the sale of his books after his death by the Faculty of Advocates.[5]

[4] Preface to Forbes's Journal of the Session, Edinburgh, 1714.

[5] MS. Genealogical Roll of the Family of Lauder by the late Sir Thomas Dick Lauder, in possession of Sir T.N. Dick Lauder.

Eight volumes came into the possession of the Faculty of Advocates, and under their auspices two folio volumes of legal decisions from 1678 to 1712 were published in 1759 and 1761.[6] In 1837 the Bannatyne Club printed The Historical Observes, 1680-1686, a complete MS. in the Advocates' Library, and in 1848 they printed two volumes of Historical Notices, 1661-1688. These are after 1678 selections from the same MSS. from which the folio of 1759 was compiled, and the additions to the text of the folio are not numerous, though the historical matter, which was buried among the legal decisions, is presented in a more convenient form. But from 1661 to 1678 (about half of vol. i.) and especially from 1670 (for the previous entries occupy only a few pages) the notices are all new and many of them of considerable interest. In printing these volumes, which I believe are acknowledged to contain some of the best material for the history of Scotland at the time, the Bannatyne Club carried out a design which had been long cherished by the late Sir Thomas Dick Lauder,[7] though he did not live to see its complete fulfilment, and he was helped in his efforts by Sir Walter Scott. The story[8] is worth telling more fully than has yet been done. In the winter of 1813-14 Sir Thomas, then a young man, met Sir Walter at a dinner-party. Sir Walter expressed his regret 'that something had not been done towards publishing the curious matter in Lord Fountainhall's MSS.,'[9] and urged Sir Thomas to undertake the task. In 1815 Sir Thomas wrote to Scott asking about a box in the Advocates' Library believed to contain MSS. of Fountainhalls. Sir Walter replied as follows:—

[6] See Mr. David Laing's Preface to the Historical Notices, p. xx, Bannatyne Club.

[7] Author of The Moray Floods, The Wolf of Badenoch, and other well-known books.

[8] The original correspondence was bound up by Sir Thomas in a volume along with Mylne's book (see infra), and is in the possession of Sir T.N. Dick Lauder.

[9] Letter, Sir T.D. Lauder to Sir W. Scott, 22nd May 1822, infra.

'Dear Sir,—I am honoured with your letter, and should have been particularly happy in an opportunity of being useful in assisting a compleat edition of Lord Fountainhall's interesting manuscripts. But I do not know of any in the Advocates' Library but those which you mention. I think it likely I may have mentioned that a large chest belonging to the family of another great Scottish lawyer, Sir James Skene of Curriehill, was in our Library and had never been examined. But I could only have been led to speak of this from the similarity of the subject, not from supposing that any of Lord Fountainhall's papers could possibly be deposited there. I am very glad to hear you are busying yourself with a task which will throw most important light upon the history of Scotland, and am, with regard, dear sir, your most obedt. servant,

'WALTER SCOTT. 'Edinr., 19 February 1815.'

After a further interchange of letters in 1816 the matter slumbered till 1822 when there appeared a volume entitled Chronological Notes of Scottish Affairs from 1680 till 1701, being chiefly taken from the Diary of Lord Fountainhall (Constable, 1822), with a preface by Sir Walter Scott, who had evidently forgotten his correspondence with Sir Thomas.[10] The volume in reality contained a selection, comparatively small, from Fountainhall's notebooks in the Advocates' Library, with copious interpolations by the author, Robert Mylne (who died in 1747), not distinguished from the authentic text of the notes, and greatly misrepresenting Fountainhall's opinions. The next stage in the correspondence may be given in Sir Thomas's own words:—

[10] The preface and Mylne's interpolations are appended to Mr. Laing's preface to the Historical Notices.

'Having been much astonished to learn, from a perusal of the foregoing review,[11] that Sir Walter Scott had stolen a march on me, and published a Manuscript of Lord Fountainhall's, at the very time when he had reason to believe me engaged in the work, and that by his own suggestion, and being above all things surprised that he had not thought it proper to acquaint me with his intention before carrying it into effect, I sat down and wrote to him the following letter, in which, being aware how much he who I was addressing was to be considered as a sort of privileged person in literary matters, I took special care to give no offence, to write calmly, and to confine myself to such a simple statement of the facts as might bring a blush into his face without exciting the smallest angry feeling. I hoped, too, that I might prevail on him, as some atonement for his sins, to lend a helping hand to bring forth the real work of Lord Fountainhall in a proper style.'

[11] In Constable's Magazine. See infra.

To SIR WALTER SCOTT OF ABBOTSFORD, BARONET.

'Relugas, near Forres, 22nd May 1822.

'DEAR SIR,—From Constable's Magazine for last month, which has this moment fallen into my hands, I learn, for the first time, with some surprise, but with much greater delight than mortification, that you have condescended to become the Editor of a portion of my Ancestor Lord Fountainhall's MSS. From this I am led to believe, that the circumstance of my having been engaged in the work since 1814 must have escaped your recollection, otherwise I think you would have informed me of your intention or inquired into mine. In the winter 1813-14, I had the happiness of meeting you at the table of our mutual friend, Mr. Pringle of Yair, where you expressed regret to me that something had not been done towards publishing the curious matter contained in Lord Fountainhall's MSS., urging me at the same time to undertake the task. Having also soon afterwards been pressed to perform this duty by Mr. Thomas Thomson, Mr. Napier, and several other literary friends, I was led to begin it, and Lord Meadowbank having presented my petition to the Dean and Faculty of Advocates, they were so liberal as to permit me to have the use of the MSS. in succession at Fountainhall, where I then was on a visit to my Father, and where I transcribed everything fit for my purpose. Emboldened by the remembrance of what passed in conversation with you at Mr. Pringle's, I took the liberty of trespassing on you in a letter dated 18th February 1815, to beg you would inform me whether you knew of the existence of any of Lord Fountainhall's MSS. besides the eight Folio volumes I had then examined. You did me the honor to write me an immediate reply, in which you stated that you knew of no other MSS. but those I had mentioned, and you conclude by saying, that you were glad to hear that I was busying myself in a task which would throw much light on the history of Scotland. In May 1816, whilst engaged here in arranging and retranscribing the materials I had collected for the work in the order of a Journal, I met with a little difficulty about the word FORRES, which the sense of the passage led me to read FORREST, meaning ETTRICK FORREST. Knowing that you were the best source from which true information on such subjects was to be drawn, and presuming upon your former kindness, I again addressed you, 23rd May 1816, begging to know whether I was right in my conjecture. To this I received a very polite answer in course of post, in which you express great pleasure in complying with my request, and are so obliging as to conclude with the assurance that at any time you will be happy to elucidate my researches into my ancestors' curious and most valuable Manuscripts with such hints as your local knowledge may supply.

'Since the period to which I have just alluded, I have continued to prosecute the work, but only at intervals, having met with frequent interruptions, among which I may mention an excursion to Italy; and after having finished about two-thirds of it in my own handwriting, it is only now that I have been able to complete it, by the aid of an amanuensis. I do not much wonder that, employed as you are in administering fresh draughts of enjoyment from the exhaustless spring of your genius to the ever-increasing thirst of a delighted public, you should have forgotten my humble labours. But whilst I regret that they should have been so forgotten, inasmuch as they might have contributed to aid or lessen yours, I beg to assure you, that every other feeling is absorbed in that of the satisfaction I am now impressed with in learning that you have taken Lord Fountainhall under your fostering care, as I am well aware that, independent of the honor done him and his family by his name being coupled with that of Sir Walter Scott, there does not now, and perhaps there never will, exist any individual who could elucidate him so happily as your high talents and your deep research in the historical anecdote of your country must enable you to do. I am naturally very desirous to see your publication, of which I cannot procure a copy from the booksellers here. I should not otherwise have intruded on you until I had seen the book, as I am at present ignorant how far it clashes or agrees with the plan of the work I have prepared. As business calls me to Edinburgh, I can now have no opportunity of perusing it before my departure, as I leave this on Tuesday the 28th instant I observe, however, with great gratification, from a quotation in the Magazine from your preface, that you hold out hopes of a farther publication, and I am consequently anxious to avail myself of being in Edinburgh to have the honor of an interview with you, that I may avoid any injudicious interference with your undertaking, and rather go hand in hand with you in promoting it. As I shall be detained on the road, I shall not be in Edinburgh until the evening of Friday the 31st, and my present intention is to remain in town only Saturday and Sunday, unless unavoidable circumstances occur to prevent my leaving it on the Monday. If you could make it convenient to grant me an audience on either of the days I have mentioned, viz., on Saturday, or Sunday, the 1st or 2nd of June, you would very much oblige me, and it will be a further favor if you will have a note lying for me at Mrs. President Blair's, or at my Agent, Mr. Macbean's, 11 Charlotte Square, stating the precise time when you can most conveniently receive me, that I may not be so unfortunate as to call on you unseasonably. With the highest respect, and with very great regard, I have the honor to be, dear sir, very truly yours,

THOS. DICK LAUDER.'

To this Sir Walter replied:—

'MY DEAR SIR,—I am sorry you could for a moment think that in printing rather than publishing Lord Fountainhall's Notes or rather Mr. Milne's, for that honest gentleman had taken the superfluous trouble to write the whole book anew, I meant to interfere with your valuable and extensive projected work. I mentioned in the advertisement that you were engaged in writing the life of Lord Fountainhall, and therefore declined saying anything on the subject, and I must add that I always conceived it was his life you meant to publish and not his works. I am very happy you entertain the latter intention, for a great deal of historical matter exists in the manuscript copy of the collection of decisions which has been omitted by the publishers, whose object was only to collect the law reports and who appear in the latter volume entirely to have disregarded all other information. There is also somewhere in the Advocates' Library, but now mislaid, a very curious letter of Lord Fountainhall on the Revolution, and so very many other remains of his that I would fain hope your work will suffer nothing by my anticipation, which I assure you would never have taken place had I conceived those Notes fell within your plan. The fact was that the letter on the Revolution was mislaid and the little Ma[nuscript] having disappeared also, though it was afterwards recovered, it seemed to me worth while to have it put in a printed shape for the sake of preservation, and as only one hundred copies were printed, I hope it will rather excite than gratify curiosity on the subject of Lord Fountainhall. I expected to see you before I should have thought of publishing the Letter on the Revolution, and hoped to whet your almost blunted purpose about doing that and some other things yourself. I think a selection from the Decisions just on the contrary principle which was naturally enough adopted by the former publishers, rejected[12] the law that is and retaining the history, would be highly interesting. I am sure you are entitled to expect[13] on all accounts and not interruption from me in a task so honorable, and I hope you will spare me a day in town to talk the old Judge's affairs over. The history of the Bass should be a curious one. You are of course aware of the anecdote of one of your ancestors insisting on having the "auld craig back again."

'Constable undertook to forward to you a copy of the Notes with my respects, and it adds to my piggish behaviour that I see he had omitted it. I will cause him send it by the Ferry Carrier.

'I beg to assure you that I am particularly sensible of the kind and accomodating view you have taken of this matter, in which I am sensible I acted very thoughtlessly because it would have been easy to have written to enquire into your intentions. Indeed I intended to do so, but the thing had gone out of my head. I leave Edin'r in July, should you come after the 12 of that month may I hope to see you at Abbotsford, which would be very agreeable, but if you keep your purpose of being here in the beginning of June I hope you will calculate on dining here on Sunday 2d at five o'clock. I will get Sharpe to meet you who knows more about L'd Fountainhall than any one.—I am with great penitence, dear Sir Thomas, your very faithful humble servant,

'WALTER SCOTT.'

[12] sic for rejecting.

[13] A word is omitted, perhaps 'assistance.'

'N.B.—The foregoing letter from Sir Walter, written in answer to mine of the 25th May,[14] sufficiently shows the extent of the dilemma he found himself thrown into. It is full of strange contradictions. He talks of "printing rather than publishing" a book which was publickly advertised and publickly sold. He assures me that he believed that it was Fountainhall's Life, and not his works I meant to publish, though the former part of the correspondence between us must have made him fully aware that it was the works I had in view; and he unwittingly proves to me immediately afterwards that he had not altogether forgotten that it was the works I had taken in hand to publish, for he says, "I expected to see you before I should have thought of publishing the letter on the Revolution, and hoped to whet your almost blunted purpose about doing that and some other things yourself." And again afterwards—"it would have been easy to have written to enquire into your intentions, indeed I intended to do so, but the thing had gone out of my head." Why did you intend to write to me, Sir Walter, about intentions which you have said you were unconscious had any existence? But who can dare to be angry with Sir Walter Scott? Who could be savage enough to be angry with the meanest individual who could write with so much good nature and bonhommie as he displays in his letter? Had one particle of angry feeling lurked in my bosom against him, I should have merited scourging. My answer was as follows....'

[14] sic for 22nd May.

Sir Thomas was unable to accept Sir Walter's invitation, but proposed to call on him, and received the following reply:—

'My dear Sir Thomas,—I am much mortified at finding that by a peremptory message from my builder at Abbotsford, who is erecting an addition to my house, I must set out there to-morrow at twelve. But we must meet for all that, and I hope you will do me the honour to breakfast here, though at the unchristian hour of Nine o'clock, and if you come as soon after eight as you will, you will find me ready to receive you. I mention this because I must be in the court at Ten. I hope this will suit you till time permits a longer interview. I shall therefore expect you accordingly.—Yours very sincerely,

WALTER SCOTT.

'Castle Street, Friday'

'It gives me sincere regret that this unexpected news[15] prevents my having the pleasure of receiving you on Monday.'

[15] This word doubtful. It is indistinctly written.

Sir Thomas proceeds in his narrative:—

'N.B.—I kept my appointment accurately to the hour and minute, and found the Great Unknown dashing off long foolscap sheets of what was soon to interest the eyes, and the minds, and the hearts of the whole reading world; preparing a literary food for the voracious maw of the many-headed monster, every mouth of which was gaping wide in expectation of it. He received me most kindly, though I could not help secretly grudging, more than I have no doubt he did, every moment of the time he so good-naturedly sacrificed to me. He repeated in words, and, if possible, in stronger terms, the apologies contained in his letter. I offered him my Manuscript and my humble services. He insisted that he would not rob me of the fruits of my pious labours. "As I know something of publishing," said he, with an intelligent smile on his countenance, "I shall be able to give you some assistance and advice as to how to bring the work properly and respectably out." I thanked him, and ventured to entreat that he would add to the obligation he was laying me under by giving me a few notes to the proposed publication. In short, the result of an hour's conversation was that he undertook to arrange everything about the publication with a bookseller, and to give me the notes I asked, and, in fact, to do everything in his power to assist me, and I left him with very great regret that a matter of business prevented me from accepting of his pressing invitation to breakfast. Before parting, he wrote for me the ensuing letter to Mr. Kirkpatrick Sharpe, which I was deprived of an opportunity of delivering by the shortness of my visit to Edinburgh.'

Sir Thomas soon afterwards completed his transcript, and on 7th June 1823 he wrote:—

'Relugas, near Forres, 7th June 1823.

'MY DEAR SIR WALTER,—Can you pardon me for thus troubling you, in order to have my curiosity satisfied about our old friend Fountainhall, whose work I gave you in July last. I hope you received the remainder of the Manuscript in October from my agent, Mr. Macbean. If you can spare time to say, in a single line, what is doing about him, you will confer a great obligation, on yours very faithfully,

T.D. LAUDER.'

Sir Walter replied:—

'MY DEAR SIR,—We have not taken any steps about our venerable friend and your predecessor, whose manuscript is lying safe in my hands. Constable has been in London this long time, and is still there, and Cadell does not seem willingly to embark in any enterprize of consequence just now. We have set on foot a sort [of] Scottish Roxburgh Club[16] here for publishing curiosities of Scottish Literature, but Fountainhall would be a work rather too heavy for our limited funds, although few can be concerned which would come more legitimately under the purpose of our association, which is made in order to rescue from the chance of destruction the documents most essential to the history and literature of Scotland.

'We are having a meeting on the 4th July, when I will table the subject, and if we possibly can assist in bringing out the worthy Judge in good stile, we will be most ready to co-operate with your pious endeavours to that effect. I should wish to hear from you before that time what you would wish to be done in the matter respecting the size, number of the impression, and so forth. Whatever lies in my limited power will be gladly contributed by, dear sir, your very faithful servant,

'WALTER SCOTT. 'Castle Street, 18 June 1823.'

[16] The Bannatyne Club was instituted on 15th February 1823. Its object was to print works of the history, topography, poetry, and miscellaneous literature of Scotland in former times. Sir Walter Scott was president till his death. The Club's last meeting was in 1861, but there were some publications till 1867.

And in answer to further inquiry he again wrote on 10th July 1823:—

'MY DEAR SIR THOMAS,—You are too easily alarmed about the fate of your ancestors. I did not mean it would not be published—far less that I would not do all in my power to advance the publication—but only that the size and probable expense of the work, with the limited sale for articles of literature only interesting to the Scottish Antiquaries, rendered the Booksellers less willing to adopt the proposal than they seemed at first. However I thought it as well to wait until Constable himself came down from London, as I had only spoken with his partner, and I have since seen him, and find him well disposed to the undertaking. I told him I would give with the greatest pleasure any assistance in my power in the way of historical illustration, and that I concluded that you, to whom the work unquestionably belongs, would contribute a life of the venerable Lawyer and some account of his family. Mr. Thomson has promised to look through the Manuscript and collate it with that of Mr. Maule, and is of opinion (as I am) that it would be very desirable to retrench all the mere law questions which are to be found in the printed folios. Indeed the Editors of those two volumes had a purpose in view directly opposed to ours, for they wished to omit historical and domestic anecdotes and give the law cases as unmixed as possible, while it would be our object doubtless to exclude the mere law questions in favour of the other. No doubt many of the law cases are in themselves such singular examples of the state of manners that it would be a pity not to retain them even although they may be found in the printed copy because they are there mixed with so much professional matter that general readers will not easily discover them.

'The retrenching of the mere law will entirely advantage the general sale of the work besides greatly reducing the expense, and in either point of view it will make it a speculation more like to be advantageous. I think Constable will be disposed to incur the expense of publishing at his own risque, allowing you one half of the free profits which the established mode of accounting amongst authors and booksellers circumcises so closely that the sum netted by the author seldom exceeds a 3'd or thereabout. But then you have no risque, and that is a great matter. My experience does not encourage me to bid you expect much profit upon an undertaking of this nature, in fact on any that I have myself tried I have been always rather a loser; but still there may be some, and I am sure the descendant of Lord Fountainhall is best entitled to such should it arise on his ancestor's work. I think you had better correspond with Constable, assuring him of my willingness to help in any thing that can get the book out, and I am sure Mr. Thomson will feel the same interest I have to leave here to-morrow for four months, but as I am only at Abbotsford I can do any thing that may be referred to me.

'As for Milne's notes, there are many of them that I think worth preservation as describing and identifying the individuals of whom Fountainhall wrote, although his silly party zeal makes him, like all such partizans of faction, unjust and scurrilous.

'I have only to add that the Manuscript is with Mr. Thomson for the purpose of collation, and that I am sure Constable will be glad to treat with you on the subject of publication, and that I will, as I have always been, be most ready to give any notes or illustrations in my power, the only way I suppose in which I can be useful to the publication. The idea of retrenching the law cases, which originates with Thomson, promises, if you entertain it, to remove the only possible objection to the publication, namely the great expense. My address for the next four months is, Abbotsford, by Melrose, and I am always, dear Sir Thomas, very much your faithful, humble servant,

WALTER SCOTT.

'Edin'r, 10 July 1823.'

Again on 27th November 1823:—

'Dear Sir Thomas,—I have sent the Manuscript to Mr. Macbean, Charlotte Square, as you desire. It is a very curious one and contains many strange pictures of the times. Our ancestors were sad dogs, and we to be worse than them, as Horace tells us the Romans were, have a great stride to make in the paths of iniquity. Men like your ancestor were certainly rare amongst them. I had a scrap some where about the murder of the Lauders at Lauder where Fountainhall's ancestor was Baillie at the time. After this misfortune they are said to have retired to Edinburgh. Fountainhall's grandfather lived at the Westport. All this is I hope familiar to you, I say I hope so, for after a good deal of search I have abandoned hope of finding my memorandum.

'I have seen Constable who promises to send me the sheets as they are thrown off, and any consideration that I can bestow on them will be a pleasure to, dear Sir Thomas, your most obedient servant,

WALTER SCOTT.

'Edin'r, 2d December.'

The last letter on the subject, written apparently by Mr. Cadell, is as follows:—

'Edinburgh, 28 July 1824.

'Dear Sir,—We duly received your much esteemed letter of 16 instant, and beg to assure you that we are as willing as ever to do what we stated last year in bringing out your MS. in a creditable way. The reason, and the only reason of delay, has been the indisposition of Mr. Constable, who has from last November till about a month ago been unable to give his time to business.

'Having communicated your letter to him we beg now to state that we shall take immediate steps for getting the work expedited. The MS. is still in Mr. Thomson's hands, but we shall see him on the subject forthwith. It is proposed to print the work in 2 vols. octavo handsomely, the number 500 copies.—We remain, sir, with much respect, your most,

ARCH. CONSTABLE & Co.

'Sir Thos. Dick Lauder, Bart.'

'The publication,' as Mr. Laing says in his Preface, 'intended to form two volumes in octavo, under the title of Historical Notices of Scottish Affairs, had actually proceeded to press to page 304 in 1825, when the misfortunes of the publisher put a stop to the enterprise. After an interval of several years the greater portion of Sir Thomas's transcripts was placed at the disposal of the Bannatyne Club.' The result was the publication of the Observes and the Historical Notices. Mr. Laing adds, 'If at any subsequent time some of his missing MSS. should be discovered, another volume of Selections, to include his early Journal and extracts from his smaller notebooks, might not be undeserving the attention of the Bannatyne Club.' The Journal in France, though never printed, was reviewed by Mr. Cosmo Innes in 1864 in the North British Review, vol. xli. p. 170.

OUTLINE OF FOUNTAINHALL'S LIFE

A short relation of Lord Fountainhall's life is given in Mr. David Laing's preface to the Historical Notices. He was born in 1646. His father was John Lauder, merchant and bailie of Edinburgh, of the family of Lauder of that Ilk.[17] He graduated as Master of Arts in the University of Edinburgh in 1664. He went to France to study in 1665, and returned from abroad in 1667. He was 'admitted' as an advocate in 1668. He was married in 1669 to Janet, daughter of Sir Andrew Ramsay of Abbotshall,[18] Provost of Edinburgh, afterwards a Lord of Session. In 1674, along with the leaders of the bar and the majority of the profession, he was 'debarred' or suspended from practising by the king's proclamation for asserting the right of appeal from the decisions of the Court of Session, and was restored in 1676. He was knighted in 1681. In the same year his father, who was then eighty-six years old, purchased the lands of Woodhead and others in East Lothian. The conveyance is to John Lauder of Newington in liferent, and Sir John Lauder, his son, in fee. The lands were erected into a barony, called Fountainhall. In 1685, he was returned as member of Parliament for the county of Haddington, which he represented till the Union in 1707. In 1686 his wife, by whom he had a large family, died. In 1687 he married Marion Anderson, daughter of Anderson of Balram. He was appointed a Lord of Session in 1689, and a Lord of Justiciary in 1690. He resigned the latter office in 1709, and died in 1722. His father had been made a baronet in 1681 by James VII. The succession under the patent was to his son by his third marriage; but in 1690, after the Revolution, a new patent was granted by William and Mary to Sir John Lauder, senior, and his eldest son and his heirs. The first patent was reduced in 1692, and in the same year Fountainhall succeeded on his father's death.

[17] 'Sir John Lauder of Fountainhall is deschended of the Lauders of that ilk, and his paternall coat is immatriculate and registrate in the Lyons Book of Herauldrie.'—Unprinted MS. by Lauder, in possession of Sir T.N. Dick Lauder. A Genealogical Roll in MS., of the Lauder Family, compiled by Sir T. Dick Lauder, also in the present baronet's possession, has afforded much useful information; and for Lauder's family connections, I have also consulted Mrs. Atholl Forbes's Curiosities of a Scottish Charter Chest, and Mrs. Stewart Smith's Grange of St. Giles.

[18] See Appendix III.

The following estimate of his character in Forbes's Preface to the Journal of the Session (1714), a rare book, is quoted by Mr. Laing, but is too much in point to be omitted here. 'The publick and private character of this excellent judge are now so well known that I need say no more of him than that he signalized himself as a good patriot and true Protestant in the Parliament of 1686 in defence of the Penal Laws against Popery. This self-denyed man hath taken no less pains to shun places that were in his offer than some others have been at to get into preferment. Witness his refusing to accept a patent in the year 1692 to be the King's Advocate, and the resigning his place as a Lord of Justiciary after the Union, which Her Majesty with reluctancy took off his hand. In short, his lordship is (what I know by experience) as communicative as he is universally learned and knowing. He hath observed the decisions of the Session from November 1689 till November 1712, which I have seen in Manuscript; but his excessive modesty can't be prevailed on to make them publick.'

There are no materials for expanding Mr. Laing's sketch of Fountainhall's life, except in so far as the notes of his travels and his expeditions into the country, and the accounts, here printed, give some glimpses of his habits and his domestic economy in his early professional years. He lived in troubled times, but his own career was prosperous and comparatively uneventful. The modesty which Professor Forbes truly ascribes to him disinclined him to take a part, as a good many lawyers did, in public affairs, except for a short period before the Revolution, as a member of Parliament; and, together with his prudence and strong conscientiousness, preserved him from mixing in the political and personal intrigues which were then so rife in the country. The same modesty is apparent in his writings in mature life to a tantalising degree. It may not be so conspicuous in his boyish journal, when he was ready enough to throw down the gauntlet in a theological discussion; but in the later voluminous MSS., when even dry legal disputes are enlivened by graphic and personal touches, the author himself rarely appears on the scene. We miss the pleasant details of Clerk of Penicuik's Memoirs.[19] We learn little of the author's daily walk and conversation. It does not even appear (so far as I know) where his house in Edinburgh was. We do not know how often he went to Fountainhall, or whether he there realised his wish to spend half his time in the country.[20] We do not know how he occupied himself there, though it may be gathered that he took much interest in the management of his property and in country business, and he records with much gratification his appointment as a justice of the peace. He tells us nothing of his wife, except how much money she got for housekeeping, and nothing of his children, except when he records their births or deaths. Nothing of his personal relations with his distinguished contemporaries at the bar, or with the men who, as officers of State and Privy Councillors, still governed Scotland in Edinburgh.

[19] Scottish History Society.

[20] Journal, p. 21.

On the other hand, his opinions on all subjects, on public affairs and public men, on such questions of speculation or ethical interest as astrology and witchcraft, often strikingly expressed in language always racy and sincere, are scattered through the published volumes of his writings, all printed without note or comment. It may at least be a tribute to Fountainhall's memory to present a short view of his opinions, and for that purpose I have not scrupled to quote freely, especially from the Historical Observes, a delightful book, which deserves a larger public than the limited circle of its fortunate possessors. Fountainhall's political opinions were moderate, in an age when moderation was rare. We are tempted to think, if I am not mistaken, that in that dark period of Scottish history, every man was a furious partisan, as a Royalist or a Whig, or as an adherent of one or other of the chiefs who intrigued for power. But it may be that Lauder's attitude reflects more truly the average opinions of educated men of the time.

HIS POLITICAL OPINIONS

His political position has perhaps been imperfectly understood by the few writers who have had occasion to refer to it. Mr. Laing's statement, that prior to the Revolution 'he appears generally to have acted only with those who opposed the measure of the Court,' is not, I venture to think, wholly accurate. It is true that on one occasion, no doubt memorable in his own life, he incurred the displeasure of the government. When James VII. on his accession proposed to relax the penal laws against Roman Catholics, while enforcing them against Presbyterians, Lauder, who had just entered Parliament, opposed that policy and spoke against it in terms studiously moderate and respectful to the Crown. The result, however, was that he became a suspected person. As he records in April 1686, 'My 2 servants 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 this manuscript, and many others, and intermit my Historick Remarks till the Revolution in the end of 1688.'

Hence the Revolution was perhaps welcome to him. As an adherent of character and some position he met with marked favour from the new sovereigns, who promoted him to the bench, and corrected the injustice which had been done to him in the matter of the patent of his father's baronetcy, and also granted him a pension of L100 a year, an addition of fifty per cent. to his official salary. Shortly afterwards he was offered the post of Lord Advocate, but declined it, because the condition was attached that he should not prosecute the persons implicated in the Massacre of Glencoe.[21] From these facts it has been sometimes inferred that Lauder was disaffected to the Stewart dynasty, and that his professional advancement was thereby retarded. In reality his career was one of steady prosperity. Having already received the honour of knighthood while still a young man, and being a member of parliament for his county, he became a judge at the age of forty-three. So far from holding opinions antagonistic to the reigning house, Lauder was an enthusiastic royalist. He was indeed a staunch Protestant at a time when religion played a great part in politics. In his early youth the journal here published shows him as perhaps a bigoted Protestant. But he was not conscious of any conflict between his faith and his loyalty till the conflict was forced upon him, and that was late in the day. In this position he was by no means singular. Sir George Mackenzie, who as Lord Advocate was so vigorous an instrument of Charles II.'s policy, refused, like Lauder, to concur in the partial application of the penal laws, and his refusal led to his temporary disgrace. Lauder was not even a reformer. He was a man of conservative temperament, and while his love of justice and good government led him to criticise in his private journals the glaring defects of administration, and especially the administration of justice, there is no evidence that he had even considered how a remedy was to be found. There was indeed no constitutional means of redress, and all revolutionary methods, from the stubborn resistance of the Covenanters, to the plots in London, real or imaginary, but always implicitly believed in by Lauder, and the expeditions of Monmouth and Argyll, met with Lauder's unqualified disapproval and condemnation.

[21] It has been said that there is no sufficient evidence of this honourable incident in Fountainhall's career. But Sir Thomas Dick Lauder (MS. Genealogical Roll, supra) reproduces it in a poem to the Memory of Sir John Lauder, published in 1743, and attributed to Blair, the author of 'The Grave,' in which the following lines occur. He

'Saw guiltless blood poured out with lavish hand, And vast depopulated tracts of land; And saw the wicked authors of that ill Unpunished, nay, caressed and favoured still. The power to prosecute he would not have, Obliged such miscreants overlooked to save.'

[Sidenote: H.O. 148]

[Sidenote: H.O. 6]

[Sidenote: Decisions, p. 232.]

I shall cite some passages in illustration. When Charles II. died and James was proclaimed, Lauder writes that 'peoples greiff was more than their joy, having lost their dearly loved king'; then after a gentle reference to 'his only weak syde,' he says, 'he was certainly a prince indued with many Royall qualities, and of whom the Divine providence had taken a speciall care by preserving him after Worcester fight in the oak.' ... 'A star appeared at noon day at his birth; he was a great mathematician, chemist, and mechanick, and wrought oft in the laboratories himselfe; he had a natural mildnesse and command over his anger, which never transported him beyond an innocent puff and spitting, and was soon over, and yet commanded more deference from his people than if he had expressed it more severely, so great respect had all to him. His clemencie was admirable, witnesse his sparing 2 of Oliver Cromwell's sones, tho on of them had usurped his throne. His firmnesse in religion was evident; for in his banishment he had great invitations and offers of help to restore him to his croun if he would turne Papist, but he always refused it. As for his brother James, now our present King, he is of that martiall courage and conduct, that the great General Turenne was heard say, if he ware to conquer the world, he would choise the Duke of York to command his army,' Such were Lander's loyal sentiments, as set down in a private journal a year before his servants and clerks were arrested, and the seizure of his papers threatened. But his Protestantism and his jealousy of Popery were equally strong. In 1680 he notes that the minister of Wells in Nithsdale had 'turned Roman Catholic: so this is one of the remarkable trophees and spoils the Papists are beginning to gain upon our religion.' A little further on he is indignant at ridicule being thrown on the Popish Plot 'Not only too many among ourselves, but the French, turned the Plot into matter of sport and laughter: for at Paris they acted in ther comedy, called Scaramucchio, the English tryall, and busked up a dog in a goune lik Chief Justice Scrogs.' Again, 'A Papist qua Papist cannot be a faithful subject,' He had, however, no sympathy with the Covenanters, a name which he does not use, but he describes them as 'praecise phanaticks.' He did not consider it unjust to bring them to capital punishment, because they denied the right of the king to govern, though on grounds of humanity and policy he was inclined to mercy. In 1682 he observes on the execution of Alexander Home, a small gentleman of the Merse, who had commanded a party at the insurrection of Bothwell Bridge, 'tho he came not that lenth,' 'It was thought ther was blood eneuch shed on that quarrell already ... for they are like Sampson, they kill and persuade mo at ther death than they did in ther life.' He couples the Roman Catholics and Presbyterians together as troublesome citizens. 'These foolish people that assume the name of Presbyterians have unwarily drunk in these restles principles from the Jesuites and seminary priests, who have had a hand in all our troubles and blown the coall.' Apart, however, from the political attitude of the Covenanters, whom he regarded as disaffected subjects, there is no evidence that he concerned himself with the controversy as to the Episcopal or Presbyterian form of Church government, or that he regretted the re- establishment of Presbytery after the Revolution. He was not interested in Church matters. In 1683 he writes, 'The Synod of Edinburgh' [which was then Episcopalian] 'sat down, and not having much else to do, enacted 1'o that ministers should not sit in the pulpit, but stand all the time they are in it.'[22]

[22] A devotional diary, for 1700, apparently one of a series, preserved in the Edinburgh University Library, No. 274, and an undated letter in the Dick Lauder MSS. about the election of a 'godly, primitive, and evangelicall pastor,' lead me to think that his views were Calvinistic, and not out of sympathy with the Presbyterian Establishment of the Revolution.

In the present volume, p. 229, there is a striking example of his sympathy with the royal prerogative. He says it was believed that the project of Union was 'mainly set on foot by his Majestie and so much coveted after by him that he may rid himselfe of the House of Commons, who have been very heavy on his loines, and the loins of his predecessors.... I confesse the king has reason to wrest this excessive power out of the Commons their hand, it being an unspeakable impairment of the soveraintie, but I fear it prosper not.'

His repugnance to anything savouring of revolutionary methods, combined with his always candid recognition of merit, appears in his observation when Sidney was executed.

[Sidenote: H.O. p. 110.]

He was a gallant man, yet had he been so misfortunat as ever to be on the disloyal side, and seemed to have drunk in with his milk republican principles.' In December 1684 Baillie of Jerviswood was prosecuted for being art and part in a treasonable conspiracy in England, along with Shaftesbury, Russell, and others. Lauder and Sir George Lockhart were commanded on their allegiance to assist the King's Advocate in the prosecution. The Court, after deliberating from midnight till three in the morning, brought in a verdict finding 'his being art and part of the conspiracy and design to rise in arms, and his concealing the same proven,' He was hanged and quartered the same day. Fountainhall did not disapprove of his condemnation. He says, 'he carried all this with much calmness and composure of mind; only he complained the time they had given him to prepare for death was too short, and huffed a little that he should be esteemed guilty of any design against the life of the King or his brother, of which he purged himself, as he hoped to find mercy, so also he denied any purpose of subverting the monarchial government, only he had wished that some grievances in the administration of our affairs might be rectified and reformed; but seeing he purged not himself of the rest of his libel, his silence as to these looked like a tacit confession and acknowledgment thereof.'

[Sidenote: Decisions, i. 366.]

[Sidenote: H.O. 74]

[Sidenote: H.N. 11]

[Sidenote: H.O. 184]

[Sidenote: Decisions, i. 160.]

[Sidenote: H.O. 55.]

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 L5000 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 (L100), secured on land. His wife's marriage portion was 10,000 merks (about L555), 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 L12 (sterling). His house-rent was L20 (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 L2 (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 L200, and it only reached that figure during his lifetime. Some time after the Union it was raised to L500. 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 L5000 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 L11,000 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 (L5000 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.

(1) Livre. The livre used by Lauder, and called by him indifferently 'frank,' was the livre tournois,[28] of 20 sous. It was, subject to exchange, of the same value as the pound Scots,[29] 1s. 8d. sterling, which greatly simplifies calculations. The L s. d. French was equal to the L s. d. Scots, and one twelfth of the value of the L s. d. English or sterling.

[28] The livre parisis contained 25 sous.—Major's Greater Britain (S.H.S.), p. 32, note.

[29] See pp. 3 and 4 and passim.

(2) Ecu, ecu blanc, or d'argent, a silver coin worth 3 livres,[30] or 5s. sterling, thus of the same value as the English crown, and sometimes called crown by Lauder.

[30] The value varied a little, but it was three livres in 1653.— Memoires de l'Academie des Inscriptions et de Belles Lettres (1857), Tome 21, 2'me partie, p. 350.

(3) Ecu d'or, or couronne, golden crown. It was worth about 5 livres 12 sous,[31] equal to 9s. 4d. sterling. (P. 155, 'I receaved some 56 ll. in 10 golden crowns.')

[31] The exact value in 1666 in livres tournois was 5 ll. 11s. 6d.— Memoires, ut supra, p. 256.

(4) Pistole. A Spanish gold coin current in France. Its standard value was 10 livres tournois, equal to 16s. 8d. That fairly corresponds with a proclamation in Ireland in 1661 fixing it at 16s. Littre (Dict. s.v.), states the value of the coin a good deal higher, though he gives the standard as above. But its value gradually increased, like that of other gold coins, and in later Irish proclamations is much higher.

The British gold coins Jacobus and Carolus were also used by Lauder in France, and are explained below.

2. In Scotland and England.[32]

[32] See Cochran Patrick's Records of the Coinage of Scotland (1876); Ruding's Annals of the Coinage (1817); and Handbook of the Coins of Great Britain and Ireland in the British Museum, by H.A. Grueber (1899); Burns, Coinage of Scotland.

(1) Jacobus (2) Carolus. James VI. on his accession to the throne of England, with a view to the union of the kingdoms, issued a coinage for both countries, which was in this sense uniform that each Scottish coin was commensurable and interchangeable with an English coin. The ratio of the Scots to the English L s. d., which during centuries was always becoming lower, was finally fixed at 1 to 12. The English 20s. and Scots 12 l. pieces of equal value now issued were called the unite. The double crown or 10s. piece was the Scots 6 l. piece, the crown the Scots 3 l. piece, and so on.

The unite was so called from the leading idea of union, just as the double crown had the legend, Henricus Rosas Regna Jacobus. As Henry VII. united the Red and White Roses, James was to unite the two kingdoms. It seems probable that James intended the unite as a 20s. or pound piece to be the standard and pivot of the coinage of both countries, as the pound or sovereign has now become. This enlightened policy, though it had lasting effects, soon broke down in detail. In England the shilling proved too strong for the unite, and in Scotland the merk maintained its hold. To prevent the exportation of gold, the value of the unite of 154 grains[33] was raised to 22s. in 1612, though the king had himself proposed rather to lower the weight of silver. That caused confusion, 'on account of the unaptness for tale' of the gold pieces at their enhanced value, and a lighter 20s. piece of 140 grains was issued in 1619 for England only, known as the laurel piece, from the wreath round the king's head. In Scotland the original unite remained, and was sometimes called the 20 merk piece, to which value it roughly corresponded. It was repeated in the coinage of Charles I., the last sovereign who coined gold in Scotland prior to the Revolution. Thus it was the only Scottish 20s. sterling piece. Charles I.'s unite or double angel (20s. piece) for England was of the same lighter weight as the laurel. In 1661 the value of the gold coin was again heightened, the old unite to 23s. 6d., and the lighter English unite to 21s. 4d.

[33] The weights are given in round numbers.

The above information is necessary in order to identify the two gold coins which Lauder used. He generally calls the larger the Jacobus and the smaller the Carolus. At p. 80 the one is mentioned as 'the Scotes and English Jacobuses, which we call 14 pound peices,' and the other as 'the new Jacobus, which we cal the 20 shiling sterling peice.' At p. 154 he speaks of '10 Caroluses, or 20 shiling peices,' so that the new Jacobus and the Carolus are the same. While there was only one weight of Scots gold piece of the issue value of 20s. sterling, in England during the reigns of James I., Charles I., and Charles II. there were four: 1, the sovereign of James I. (172 grains); 2, the unite or double angel of James (154 grains), the same as in Scotland; 3, the laurel of James, the unite of Charles I., and the broad of Charles II. (140 grains); 4, the guinea[34] of Charles II., first struck in 1663 (131 grains). Now Lauder's larger coin was a Scots or English Jacobus, therefore it is the unite of James VI.; and his smaller coin is called both a Carolus and a new Jacobus, therefore it is the coin of 140 grains. The two pieces are mentioned in a proclamation by the Privy Council in 1661 heightening certain coins.[35]

[34] Once mentioned by Lauder, p. 220.

[35] This table may be compared with Louis XIII.'s valuation of some of these coins (p. 80). The Scots piece there mentioned with two swords, and the legend Salus, etc., is no doubt the sword and sceptre piece of James VI. (1601-4). But the issue value of the whole piece, not the half piece, was 611. Scots.

L s. D. Scots. L s. D. Scots. formerlie current at now to be current at The Double Angel [36] 13.06.08 14.04.08 The Single Angel 6.13.04 7.02.04 The Dager Peice 6.13.04 7.02.04 The Scots Ryder 6.13.04 7.02.04

The New Peice[37] 12.00.00 12.16.00 The Halfe 6.00.00 6.08.00 The Quarter 3.00.00 3.04.00

The Rose Noble, Scots and English. 10.13.04 11.07.04

The Hary Noble 9.06.08 9.19.00

[36] Lauder's Jacobus.

[37] Lauder's Carolus.

(3) Dollar. In Lauder's accounts the reader is struck by the prominent position of the dollar. While debts and obligations were calculated in pounds Scots or merks, dollars supplied the currency for household and other payments, just as pounds do at the present day. They were foreign coins of various denominations and various intrinsic value, but of inferior fineness to the Scots standard of silver money, which was eleven penny fine—eleven parts silver to one part alloy. They passed current for more than their intrinsic value, and the native silver money was withdrawn from the country. All through the reigns of Charles I. and Charles II. the subject gave great concern to the Mint, the Parliament, the Privy Council, and bodies with commercial interests like the Convention of 'Burrowis.' In 1631 the Privy Council issued a proclamation 'considering the greit skarsitie of His Majestie's proper coynes ... occasioned by the frequent transport theirof and importing of dollours in place of the same,' prohibiting the receipt of any dollars for coal or salt after 1st November next to come. 'That in the mean tyme the maisters and owners of the coalhewes and saltpans may give tymous advertisement to the strangers trading with them for coal and salt that they bring no dollours with them for the pryce of the salt and coal,' and that merchants exporting bestial or other commodities to England are to 'make return of the pryces' not in dollars, but either in H.M. proper coin or in the following foreign coins, the value and weight of which is fixed by the proclamation: Spanish pistolet, French crown, rose noble, half rose noble, quartisdiskue, single ryall. The proper method of dealing with the difficulty was matter of great controversy.

In 1633 George Foulis, master coiner, says in a memorial, 'In the first it is to be considerit that the most pairt of the moneys presently in Scotland is only dollouris.

'Secondlie, these dollouris are not all alike in wecht, some wheirof are 15 drops wecht, some 14-1/2 and many others lesser in wecht.

'Thirdlie, they are different in fineness, some 10, some 10-1/2, others baser. The best 15 drop and 10 1/2 fineness will not answer to the King's money in wecht or fynness to 54s. Scots.'

The best of these dollars was the Rex or Rix Dollar (Reichsthaler, dalle imporiale). In the reign of Charles I. the baser dollars which gave most trouble to the authorities were the dog dollars and the cross dollars. In the reign of Charles II. we hear more of the leg dollar, which approached the rex dollar in value, and had got a pretty strong footing.

On 14th January 1670, the Privy Council issued a proclamation on the narrative, 'Forasmuch as there hath been of late imported into this kingdom great numbers of those dollars commonly called leg dollars Haveing the impression of a man in armes with one leg and a shield ... covering the other leg ... which does usually pass at the rate of 58s. Scots money, and seeing that upon tryall of the intrinsick worth and value thereof they are found to fall short of the foresaid rate, and that in the United Provinces where the forsaid dollars are coyned, the passe only at the rate of crosse dollars, Therupon the King's Mtie with advice of his P.Cs. doth declare that (the rex or bank dollars now passing at 58s. Scotts) the true and just value at which the forsaids legs dollars ought to passe and be current in this kingdome is 56s. Scotts money....'

Thus we get the authorised value of these dollars at the period of Lauder's accounts. The accounts themselves show that the current value varied indefinitely, and is sometimes different in two consecutive items.[38]

[38] With regard to the etymology of 'leg,' Mr. Hallen in his introduction to the Account Book of Sir John Foulis of Ravelston (S.H.S.), p. xxxiii, gives some strong and perhaps convincing reasons in favour of Liege. But the descriptions in the Proclamation above quoted, and the fact that Lauder sometimes calls them 'legged,' seem to show that the popular etymology in Scotland was the man's leg on the coin.

Charles II. struck four merk-pieces at the issue value of 53s. 4d. Scots in two issues, the first in 1664, the second in 1675-1682. The second, and only the second issue, came at some later but unknown period to be known to numismatists as dollars. But I do not think there is any reason to suppose that Lauder called those pieces dollars. The accounts are in the period of the first issue, and Lander's dollar was of higher value. Probably his dollars were all foreign coins, generally rex dollars, as he often calls them. When they are leg dollars, he appears always so to distinguish them.

(4) The Merk, 13s. 4d. Scots, was raised in value by James VI. to 13- 1/2d. sterling, to make it interchangeable with English money. He coined none after his accession to the throne of England, and probably intended that no more should be coined. But the merk had too strong a hold in Scotland, and half merks were struck by Charles I., and various multiples and parts of merks by Charles II. at the old issue value of 13s. 4d. the merk. On the other hand, in 1651 Parliament 'cryed up' the 12s. Scots piece—equal to the English shilling—to one merk; and in 1625 the Britain crown or 31. Scots piece is officially described as 'known as the five merk piece,' though its issue value was only five shillings. This illustrates the confusion and uncertainty of the relative value of coins, of which parenthetically two other examples may be given. On 20th June 1673 Lauder notes the receipt of his year's salary as one of the assessors for the burgh, 'being 150 lb. Scots, which is about 229 merks,' whereas with the merk at 13s. 4d. (the standard value), 150 lb. is exactly 225 merks. In the same way he constantly states the same salary indifferently at 1501. Scots or L12 sterling, whereas 1501. Scots ought to have been equal to L12, 10s. sterling.

(5) Shilling. Lauder applies the name without distinction to the English shilling, 12s. Scots piece, which at page 80 he calls our shilling, and to the shilling Scots. The context generally shows which he means.

(6) Groat. Lauder's groat is the English groat of four pence, sterling. The groat Scots of less value had not been coined for a century.

(7) Penny. As in the case of the shilling, Lauder uses the name indifferently for English pence and pennies Scots, but more often English.

Such coins as testoons, placks, bodles, bawbees and turners, do not appear in his accounts, but some of them are casually mentioned in the text of the MSS., and are explained in footnotes.

LANGUAGE AND SPELLING

No alteration has been made on the text of the MSS. except the substitution of capital letters for small ones, where capitals would now be used. In this matter Lauder's practice is capricious, and it may safely be said that it was governed by no rule, conscious or unconscious. He spells the pronoun I with a capital, and usually begins a sentence with one. But names of persons and places are very often spelt with small letters. The use of capitals was not yet fixed, as it is now, and the usage of different languages, such as English, French and German, as it came to be fixed, is not identical. Some changes in the punctuation have also been made in transcription for the sake of clearness, but the punctuation, which is scanty, has not been systematically altered. In the MSS. some single words have been erased, or rubbed off, at the top and the foot of the page. The blanks are indicated, and as a rule, but not quite invariably, explained in footnotes. MSS. X and H are printed entire, with two unimportant omissions, one in each, which are noted and explained, and as regards MS. H, with the exception of some detached pages of accounts, and a catalogue of some books. Of these it was thought that the Appendix contains enough. From MS. K only extracts are given. The remainder contains more accounts, and a further catalogue of books, without the prices, and other memoranda and reflections, now of no interest. The spelling is to a large extent arbitrary.[39] It is less regular than, for example, the contemporary Acts of Parliament, but more regular than the letters of some of Lauder's contemporaries, in high positions.[40] A word is often spelt in different ways on the same page. There are, however, many constant peculiarities, some of which may have a linguistic interest, thus 'laugh' 'rough' 'enough' 'through' are spelt with a final t. The use of a final but silent t Mr. Mackay in his introduction to Pitscottie,[41] p. cxl, says is a distinct mark of Scots of the middle period. 'Voyage,' 'sponge,' and 'large' are sometimes spelt without the final e. 'Knew,' 'slew,' 'blew' are spelt 'know,' 'slow,' 'blow.' 'Inn' is spelt 'innes.' 'See' is always spelt 'sy' or 'sie,' and 'weigh,' 'wy.' But these are only examples, taken at random. 'One,' 'off,' 'too,' 'thee' are spelt 'on,' 'of,' 'to,' 'the,' a snare to the unwary reader. 'V' and 'W' are frequently interchanged.

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