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Significant Scots
Sir John Lauder

LAUDER, (SIR) JOHN, lord Fountainhall, an eminent lawyer and statesman, was born at Edinburgh, on the 2nd of August, 1646. [Register of baptisms in Edinburgh. For this, and all the other information relative to lord Fountainhall, not to be found in printed works, we are obliged to a very curious MS. collection regarding him, made by his descendant, the late Sir Thomas Dick Lauder, of which that gentleman kindly permitted us the use.] His father was John, afterwards Sir John Lauder, baronet, a merchant and baillie of Edinburgh, a younger branch and afterwards chief of the family of Lauder of Bass and Lauder. The subject of our memoir was his eldest son, by his second marriage with Isabel Ellis, daughter of Alexander Ellis of Mortonhall. By this wife he had fourteen sons and two daughters; by a previous marriage he had three children, and by a third wife, of whom mention will be made hereafter, he had four sons and two daughters. Of the early education of young Lauder, we know nothing, with the exception of a passing memorandum in his voluminous memorials of legal matters, which shows that he had passed some time at the university of Leyden, at that time the principal continental resort of students at law. "The university of St. Andrews," he says, "claims to be freed from paying excise for all drink furnished to the scholars, and that upon the general privilege competent to all universities by custom. I remember we enjoyed that privilege at Leyden, after our immatriculation." Having accomplished his preparatory studies, he passed as an advocate on the 5th of June, 1668, and commenced the practical pursuit of his profession with vigour, after having previously, as his early proficiency as a lawyer shows us, prepared his mind by intense and accurate study. "From my admission as an advocate," he says, "in June, 1668, I began to mark the decisions of the court of session;" and it is to his uninterrupted industry in this occupation that we owe that valuable mass of precedents, known by the name of "Fountainhall’s Decisions," published in two volumes folio, and lately more fully re-edited from the original manuscripts. In a case which he reports during his earlier years at the bar, strong internal evidence, arising from the use of the first person singular—the unusual prolixity of the speech, [Extending from p. 642, to 649, of Brown’s Supplement, where it is styled "Fountainhall’s Speech for the Pursuers."] and the absence of the name of the counsel; shows himself to have acted in that capacity. This action was at the instance of the town of Stirling, against the unfreemen in Falkirk and Kilsyth, bearing date January 18, and June 25, 1672. Lauder’s speech is a curious specimen of the mixed logical and rhetorical eloquence of the forensic pleading of the age, when the judges acted more as a deliberative assembly, than as a body of lawyers bound to the letter of certain enactments; and the person who addressed them, if he could not sway their passions as those of a modern jury are affected, had a wide field of influence in their reason or prejudices. Contrasted with the restricted legal pleadings of the present day, the following commencement on the part of "the learned gentleman for the prosecution," would appear very singular: "My lord commissioner, may it please your grace, what happiness and cheerfulness the eminent and most eloquent of all the apostles, St Paul, expresses, when he is put to plead his cause before Festus and Agrippa, because the one had long been a judge in his nation, and the other was expert in all the manners and customs of the Jews, the same gladness possesses the town of Stirling, and with them the whole royal burghs, that they are to plead in behalf of their privileges this day, before your grace, the great patron and conservator of them." It is to be remarked, that, in this case, Lauder is pleading for the exclusive privileges of burghs, and in favour of monopolies. He opens his speech with a sketch of the arguments of his adversary, on which, probably with a wish to caricature them, he has bestowed an amiable liberality of doctrine, which Adam Smith could not have excelled, and told many politico-economical truths, which few had then imagined. His own answers to the principles he thus beautifully lays down, sound harsh and jarring in comparison, although they were far more accordant to the principles of the time. "Do not," he says with considerable tact, "think it a light matter to rob the royal burghs of their privileges, which are become their property by as good a title as any of you bruik your lands and estate. By what hand ye shall communicate these liberties (now called in question,) to the defenders, by that same shall ye lop off the royal burghs from being the third estate in the kingdom. Remember that a threefold cord ought not to be easily broken. Consider that lamentable confusion may follow on loosing one pin of the government; that the touching such a fundamental sacred constitution may unhinge the whole; that government is like a sheaf of arrows fast bound, pull out one, all will follow and fall to the ground; and how terribly dangerous such an innovation may be." It will be held in mind, however, that each counsel was feed for the principles he maintained, and that the genuine opinions of both may have almost united in "a happy medium." The speech, on the whole, is full of classical learning, and statistical information, and cannot fail to convey a pleasing idea of the intelligence and talent of a forensic orator of the seventeenth century.

Soon after this period, we find the subject of our memoir connected with one of those constitutional acts of resistance, for which the bar of Scotland has only, in a very few instances, been celebrated. It is well known to those acquainted with Scottish history, that a private litigation betwixt the earls of Dunfermline and Callender interested the feelings or cupidity of Lauderdale, who was determined to influence the decision in favour of the former, by swaying the judges through his personal appearance on the bench, in virtue of his honorary title of "an extraordinary lord of session." The affair was managed by having the cause prematurely called in court, in defiance of statute; and, a decision being come to in favour of the pursuer, Callender lodged an appeal to parliament, a novel procedure, which it was the interest of the king and of the judges to stifle at its first appearance. There are few who will not acknowledge, that a final appeal of litigated cases to the legislative tribunal of the country, is, if not a preventive, at least a check to the consequences of influence or prejudice in inferior judicatories. The absence of such a principle, and the decay of jury trial in Scotland, had both originated from the same cause. Parliament was anciently the great jury of the nation, and, with the king as its president, the court of last resort in all litigations: but becoming, from the nature of the inferior courts, overburdened with judicial business, which a large body of men could not easily accomplish, the full powers of parliament, in this respect, were bestowed on a judicial committee called the Lords Auditors, from which, through a gradation of changes, was formed the court of session, which thus, by its origin, united the duties of the jury, the law court, and the legislative body of last resort. In these circumstances, it was not difficult for government to discover, that a measure so unpleasing to itself, was a daring innovation of the "constitution." The counsel for the appellants, Lockhart and Cunningham, were desired to make oath regarding their share in this act of insubordination, and not only refusing, but maintaining the justice of appeals, were summarily prohibited the exercise of their profession. The members of the bar united to resent the insult and protect their rights, and fifty advocates, (probably very nearly the whole number then at the bar,) of whom Lauder was one, [Mackenzie’s Memoirs, 293, when Lauder, among others, subscribes an address by the debarred advocates to the privy council. For a farther account of the affair, see the memoirs of Sir G. Lockhart, and Sir G. Mackenzie.] followed their distinguished brethren to retirement, and at the instance of Lauderdale, were banished twelve miles from Edinburgh. After a year’s exile, they were allowed to return, having managed to effect a compromise with the court. In another appeal, which was attempted not long after, the appellant was persuaded to trust to the effect of recalling his appeal; but the judges, on whom the mixture of intimidation and flattery appears to have produced little effect, adhered, notwithstanding an implied promise to the contrary, to their previous interlocutor. "And so," remarks Lauder in reference to the case, "he was either ill or well served for his complimenting them. But the times were such that no rational man could expect a rectification from them of what had once, even through unawares, escaped them. When their honour was once engaged at the stake, they blushed to confess what is incident to humanity itself, nam humanum est errare." With regard to his own sufferings for judicial integrity, he remarks, "I have few or no observations for the space of three sessions and a half, viz, from June, 1674, till January, 1676, in regard I was at that time debarred from any employment, with many other lawyers, on the account we were unclear to serve under the strict and servile ties seemed to be imposed on us by the king’s letter, discharging any to quarrel the lords of session their sentences of injustice, and was not restored till January, 1676." After his restoration to his powers, his collection of decisions shows that he was a well employed and active counsellor.

His next appearance in public life, is at the celebrated trial of the earl of Argyle in 1681, for a treasonable explanation of the test, for whom Lauder acted as counsel, along with Lockhart and six others. The vulgar prejudice against vindicating a person accused of any crime, together with the cautious vigilance of the crown, trammelled for a long time the legitimate powers of counsel in Scotland, and especially in cases of treason, brought their duty so much under the arbitration of the court, that a practice prevailed by which it was considered illegal to defend a person accused of such a crime, without the permission of government; and therefore every prudent advocate declined interfering till he could produce a royal warrant. In the present instance, Argyle’s counsel had prepared and signed, as lawyers, an "opinion" that his explanation of the test was a legal one. The consequence of this, as detailed in Lauder’s own words, was, that "The councell named a committee to call my lord Argyle’s eight advocates, viz, [The record shows him to have been returned of the following dates: 23d April, 1685; 29th April, 1686; 3rd September, 1690; 9th May, 1695; 8th September, 1696; 21st May, 1700; 6th May, 1703; 6th July, 1704; 28th June, 1705; 3rd October, 1706. –Act. Parl. vols. viii, ix, x, xi.]Sir George Lockhart, Sir John Dalrymple, Messieurs Walter Pringle, David Thoirs, Patrick Home, John Stewart, James Graham, and myself, for subscribing an opinion that his explanation contained nothing treasonable in it. We were examined upon oath; and it was called a new practice to sign opinions with us, especially in criminall cases importing treason, and a bad preparative; though lawyers should not be prelimited nor overawed freely to plead in defence of their clients; the privy council having authorized us to that purpose. Tho’ some aimed at imprisoning and depriving us, yet, after we had spoke with his royal hynes, he was pleased to pass it; tho’, he said, if any bad use were made of our signed opinion, by spreading it abroad in England to incense them, or reproach the duke or the judges, he could not but blame us. It was afterwards printed in England, and Argyle’s triall, with another piece, called a Scotch Mist to wet ane Englishman to the Skin: being sundry animadversions on Argyle’s process."

Although his political proceedings do not seem to have been calculated to bring him within the atmosphere of court favour, he early received the dignity of knighthood; at what precise period is not known, but apparently previous to the year 1681. Much about the same period, or some years afterwards, he appears to have acted as one of the assessors to the city of Edinburgh; a circumstance discoverable from his remarking, that on the 4th of November, 1685, the other gentleman who held that office was removed, from some cause connected with burgh politics, while he was retained.

In 1685, Sir John Lauder became a member of the Committee of Estates; and for more than twenty years, until the treaty of union, he appears from the journals of the house to have performed his parliamentary duties with activity and zeal. He was returned for the shire of Haddington on the 23rd of April, along with Sir John Wedderburn of Gosford. His election was disputed by Sir James Hay of Simplum; and the committee on controverted elections having reported that the votes were equally divided, a new election was proposed, when one of the voters for Sir James Hay being discovered to have given his vote after the election had been formally terminated, Sir John Lauder was declared the sitting member by a majority of one. Lauder was early discovered in his legislatorial, as he had been in his professional capacity, not to be a docile and obedient supporter of the measures of government. In the first parliament which he attended, he refused to vote for the forfaulture of the earl of Melville, who had fled from the wrath of government after the discovery of the Rye-house plot. [Act. Parl. ix. Ap. 45.]

He was a zealous friend to the protestant faith, when there were few in Scotland who risked an open defence of the religion to which they were so ardently attached. The government, who found it difficult to make the protection of protestantism a crime, had nevertheless power enough to harass him. "On May 1st, 1686," he says, "Mr James Young, son to Andrew Young, writer to the signet, is apprehended by captain Graham, and kept in the court of guard, being delated as a copier and dispenser of a paper, containing reasons why the parliament should not consent to the dispensing with the penal laws against papists, and reflecting in the end on such protestants as had apostatized! and for having verses against the bishop of St Andrews and bishop of Edinburgh; and he having in his examination named John Wilson and John Nasmyth, my servants, [The term "servant" is invariably used by Lauder and other lawyers of the period for "clerk."] as bringers of these papers to his chamber, the chancellor signed an order to captain Graham to arrest them, apprehending possibly to reach myself for libelling, as he termed it. But they having named their authors from whom they had them, were liberated, and their authors, viz. Mr John Ellis, Robert Keill, &c. were cited."—"My two servants," he afterwards says, "being imprisoned, and I threatened therewith, as also that they would seize upon my papers, and search if they contained anything offensive to the party then prevailing, I was necessitat to hide the manuscript, and many others, and intermit my historick remarks till the Revolution in the end of 1688, after which I began some observes of our meeting of estates of parliament held in 1690-93 and 95, and other occurrents forreign and domestick, briefly summed up, and drawin togither yeirly, (but not with such enlargements as I have used heir,) and are to be found up and downe in several manuscripts besyde me, to be reviewed cum dabit otium Deus."

When James made his well-known recommendation to the parliament of Scotland to rescind the penal statutes against Roman catholics, Lauder joined in the debate on the appropriate answer, in a spirit of moderation, which, according to the amount of his charity, the reader may attribute to prudence, or liberality, or both united. On the question, what term the parliament should bestow on those who professed the Romish faith, "I represented," says he, " that there was no man within the house more desirous to have these odious marks of division buried, and that we might all be united under the general name of Christian. It is true the names under which they were known in our law were the designations of the papistical kirk, heresy, error, superstition, popish idolatry, and maintainers of the cruel decrees of the council of Trent; and though it was not suitable to the wisdom and gravity of parliament to give them a title implying as if they were the true church, and we but a sect, yet I wished some soft appellation, with the least offence, might be fallen on, and therefore I proposed it might run thus, those commonly called Roman. Catholics; that the most part of our divines calls us the catholics, and so Chamier begins his Panstratia, ‘Vertuntur controversiae, Catholicos inter et Papistas.’ The chancellor called this a nicknaming of the king, and proposed it might run in general terms thus, as to those subjects your majesty has recommended to us, &c." The motion of the archbishop of Glasgow, that they should be simply termed "Roman Catholics,"—a repetition of the king’s own words—was finally carried. But however he might be inclined to be conciliatory about epithets, Lauder resisted with firmness the strong attempt made by James and his commissioner, the earl of Moray, towards the conclusion of the parliament, finally to abolish the penalties against Roman catholics. In his manuscripts are preserved seventeen closely written pages of matter on this subject, entitled "A Discourse in defence, whereof part was spoken in the parliament, of the Penal Laws against Popery, and why the Toleration Act should not pass; and the rest was intended, but was prevented by the sudden rising of the parliament." Frequent application, often in the most contemptible of causes, has made the arguments contained in this able document too hackneyed to please a modern taste; an impartial posterity, however, will reflect, that though liberal feeling has often been disgusted by a similar discussion of a question, which to this day bears the same name, the supporters of the penal laws against Roman catholics in the reign of James the Seventh, were not striking against freedom of opinion; that they were a party which had just halted from a battle for their own privileges and liberties, and once more beheld them sternly menaced; that they did not wish to dictate to the consciences of an oppressed body of men, but were boldy preserving the purity of their own, by using the only means in their power to prevent the resuscitation of a church which sat in judgment over the mind, and was armed with a sword to compel obedience to its dictates. "It were," says Lauder, "a strange excess and transport of Christian lenity and moderation, to abolish our laws against papists, who, by the principles and practice of their church, may show no favour to us; but will turn the weapons we arm them with to the total subversion of our religion:" words which had a meaning when a bigoted papal monarch sat on the throne, and the horrors of a high commission were in too fresh recollection; but which have none when used towards a poor and powerless body, desiring to enjoy their own religion in peace.

We must not omit to mention, that at the trial of the duke of Monmouth in 1686, Sir John Lauder and other two counsel were employed to protest for the interest of the duchess, who was absolute proprietrix of the estate enjoyed by her husband. The criminal court would not condescend to receive a protest in a matter purely civil; but did condescend to forfeit the property of the duchess for the crime of her husband. It was afterwards, however, given back by the king.

We pause in the history of his political career, to record a few domestic events which characterized the life of Sir John Lauder. He had been married on the 21st January, 1669, to Janet Ramsay, daughter of Sir Andrew Ramsay, lord Abbotshall, whose father was the celebrated Andrew Ramsay, minister of the Grey-friars’ church. This lady, after bearing him eleven children, died in 1686. Her husband has thus affectionately noted the event, "27 Februarii, 1686, at night happened mors charissimae meae conjugis mihi amarissima et luctuosissima; so there is little to the 10th of March, I not having come abroad till then." On the margin is written nota non obliviscenda. In the curious familiar memorials which he has left behind him, we find frequent instances of that warm domestic feeling which is often the private ornament of men illustrious for their public and political intrepidity." To any disaster in his numerous family—for he had seven children by a second wife—we sometimes meet such simple allusions as the following, buried among the legal notanda, or the political events of that feverish period: "17 Decembris, 1695, I entered on the bills; and my dear child Robert dying this day, the observes are the fewer, in respect of my absence for two days, and my other affairs, which diverted my constant attention that week." Again, "21 July, 1696, Tuesday: my dear son William dying this day, I was absent till his burial was over." Sir John was a second time married on the 26th of March, 1687, to Marion Anderson, daughter of Anderson of Balram, who survived him.

The domestic tranquillity of this excellent man was long harassed by the machinations of a step-mother,—his father’s third wife, of whose heteroclite proceedings we must give a slight sketch. This woman, Margaret Ramsay, daughter to George Ramsay of Iddington, to whom Sir John Lauder’s father was united in 1670, at the ripe age of 86, prevailed on her husband to procure a baronet’s title, which he obtained in July, 1688, and the lady, showing that she had more important designs than the gratification of female vanity, managed, by an artifice for which parental affection can scarcely form an excuse, to get the patent directed to her own son George, and the other heirs male of her body, without any reference to the children of the previous marriage.

A document among the papers of Sir John Lauder, being a draft of an indictment, or criminal libel, at the instance of the lord advocate, before the privy council, against the lady and her relations, gives us his own account of the transaction: it is dated 1690, and commences "Memorandum for Sir John Lauder, to raise ane libell at privy counsell at the instance of Sir J. D. (Sir John Dalrymple), his majesty’s advocate, for his majesty’s interest, and of Sir John Lauder, Mr William and Andrew Lauders, his brothers german, against Margaret Ramsay, &c." Neither the Medea of Euripides, nor the old ballad of "Lord Randal my Son," gives a more beau ideal picture of the proceedings of the "cruel step-dame," than this formidable document. It accuses her of having "wearied her husband by her excessive importunity and ambition to procure and accept ane knight baronet’s patent;" that, having managed through her relations to direct the destination in the manner we have mentioned, the old gentleman immediately sent the patent to Mr Robert Lauder to be altered, and Mr Robert, certainly not having the fear of what are awfully termed consequences before his eyes, proceeded to his duty, when the enraged lady "with several others of her accomplices, intending by force to have taken the patent from him, threatened to see his heart’s blood if he did not deliver it presently." Farther, "to fright her husband to comply with her unreasonable and unjust demands, she threatened that she would starve herself if that patent was not taken to her son, and that she would kill herself if she saw any of the complainers come near the house, and if he did not absolutely discharge them his presence;" and still more emphatically, "she tore the clothes off her body, and the hoods off her head, and sware fearful oaths, that she would drown herself and her children, and frequently cursed the complainers, and defamed and traduced them in all places, and threatened that she hoped to see them all rooted out, they and their posterity, off the face of the earth, and her children would succeed to all."’ A decree appears to have been obtained against the defenders in the privy council; and the patent being reduced in the civil court, a new destination was obtained, by which Sir John Lauder succeeded to the family title and estates on the death of his father in 1692.

Meantime, the Revolution had brought him a relief from the dangers and difficulties of opposition, and the hope of preferment and influence. He was appointed a lord of session, and took his seat with the title of "lord Fountainhall," on the 1st November, 1659. On the 27th of January following, he was also nominated a lord of justiciary. In 1692, Sir John Lauder was offered the lucrative and influential situation of lord advocate; but the massacre of Glencoe, an act characteristic of a darker age and a bloodier people, had just taken place; the lukewarmness, if not criminality of the government, formed an impediment, and to his honour be it mentioned, he would not accept the proffered situation except on the condition of being allowed to prosecute the murderers. At the time when the Scottish parliament found it necessary to strike a blow for the property of the nation invested in the Darien scheme, it was proposed that the parliament should vote an address to the king, calling on him to vindicate the honour of Scotland, and protect the company. The more determined spirits in that exasperated assembly demanded an act as the legitimate procedure of an independent body. Among these was Lauder. The address was carried by 108 to 84, and a body of those who voted otherwise, with Hamilton and Lauder at their head, recorded their dissent. [Act. Parl., x. 269.] He began at this period to show opposition to the measures of government. Along with Hamilton, he recorded a dissent from the motion of the high commissioner, for continuing for four months the forces over and above the 3000, which constituted the regular establishment. [Act. Parl., x. 294.] He attended parliament during the tedious discussion of the several articles of the union, and we find his protest frequently recorded, although to one or two articles which did not involve the principle of an incorporating union, he gave his assent. In the final vote, his name is recorded among the noes.

Soon after the union, on the appointment of circuits, old age interfered with lord Fountainhall’s performance of all his laborious duties, and after some unwillingness on the part of royalty to lose so honest a servant, he resigned his justiciary gown, and a short time before his death, he gave up his seat in the court of session. The good and useful man died in September, 1722, leaving to his numerous family a considerable fortune; chiefly the fruit of his own industry. On a character which has already spoken for itself through all the actions of a long life, we need not dilate. His high authority as a rational lawyer is well known to the profession. His industry was remarkable. His manuscripts, as extant, fill ten folio and three quarto volumes; and there is reason to believe, from his references, that several were lost.

In 1822, was published "Chronological Notes of Scottish Affairs from 1680 till 1701, being chiefly taken from the Diary of lord Fountainhall." Unfortunately the volume is not taken from the original manuscript, but from an abridged compilation by a Mr Milne, a writer in Edinburgh; a fierce Jacobite, who has disturbed the tranquil observations of the judge with his own fiery additions, apparently judging that his cause might be well supported by making an honest adversary tell falsehoods in its favour. A genuine selection from the historical manuscripts of lord Fountainhall would be a useful addition to our historical literature.

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