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 £5000 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.]