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APOLOGY 
 
 FOR 
 
 SIR JAMES DALRYMPLE. 
 
AS 
 
 APOLOGY 
 
 FOR y> 'l^ V'^/.j^.., 
 
 SIR JAMES DALRYMPLE 
 
 OF STAIR, 
 
 PRESIDENT OF THE SESSION, 
 
 BY HIMSELF. 
 
 EDINBURGH : 
 
 PRINTED BY J. BALLANTYNE AND CO. 
 
 M.DCCC.XXV. 
 
. 1 
 
THE BANNATYNE CLUB, 
 
 MDCCCXXV. 
 
 SIR WALTER SCOTT, Bart. 
 
 THE RIGHT HONOURABLE WILLIAM ADAM, LORD CHIEF 
 COMMISSIONER OF THE JURY COURT, 
 
 SIR WILLIAM ARBUTHNOT, BART. 
 
 JAMES BALLANTYNE, ESQ. 
 
 SIR WILLIAM MACLEOD BANNATYNE, 
 
 ROBERT BELL, ESQ. 
 
 WILLIAM BLAIR, ESQ. 
 
 GEORGE CHALMERS, ESQ. 
 
 HONOURABLE JOHN CLERK, LORD ELDIN. 
 
 HENRY COCKBURN, ESQ. 
 
 ARCHIBALD CONSTABLE, ESQ. 
 
 DAVID CONSTABLE, ESQ. 
 
 J. T. GIBSON CRAIG, ESQ. 
 
 ROBERT DUNDAS, ESQ. 
 
 ROBERT GRAHAM, ESQ. 
 
 HENRY JARDINE, ESQ. 
 THOMAS KINNEAR, ESQ. 
 DAVID LAING, ESQ. 
 REVEREND DOCTOR JOHN LEE. 
 s JAMES MAIDMENT, ESQ. 
 TftQMAS MAITLAND, ESQ. 
 GILBERi:^ LAING MEASON, ESQ. 
 
 THE RIGHT ISQNOURABLE THE EARL OF MINTO. 
 JOHN ARCHIBALIJXURRAY, ESQ. 
 ROBERT PITCAIRN, ESqX 
 
 7288?? 
 
2 
 
 THE RIGHT HONOURABLE SIR SAMUEL SHEPHERD, LORD 
 
 CHIEF BARON OF SCOTLAND, 
 ANDREW SKENE, ESQ. 
 JAMES SKENE, ESQ. 
 GEORGE SMYTHE, ESQ. 
 
 THOMAS THOMSON, ESQ. VICE-PRESIDENT. 
 PATRICK ERASER TYTLER, ESQ. 
 
MOST RESPECTFULLY INSCRIBED 
 
 TO 
 
 THE PRESIDENT 
 
 AND 
 
 MEMBERS 
 
 OF 
 
 THE BANNATYNE CLUB. 
 
 BY 
 
 WILLIAM BLAIR. 
 
The following Apology, now reprinted from a copy in the Advocates' 
 Library, was written by Sir James Dalrymple, in 1690, to vindicate him- 
 self from certain charges published against him the preceding year. The 
 attack was contained in an anonymous pamphlet, professing to be a Vindi- 
 cation of several Votes of a Majority of the Scottish Parliament, 1689, ap- 
 proving of five acts which had not obtained the Royal assent, and on which 
 the members who supported them presented an address to the King. The 
 real author of this paper is understood to have been the notorious Robert 
 Ferguson, whom Bishop Burnet terms " a man who naturally loved to 
 embroil matters," and whose whole life seems to have been such a series of 
 intrigues and conspiracies, as well entitled him to the nickname of '* The 
 Plotter," bestowed on him by his contemporaries. On this occasion. Sir 
 James Dalrymple, and his son, Sir John Dalrymple, (afterwards better 
 known as the Master of Stair,) were the principal objects of Ferguson's 
 virulence ; and the subjoined passage is that which appears to have chiefly 
 and justly raised the indignation of the former. One of the rejected acts 
 had been intended to regulate " the nomination of the Ordinary Lords of 
 Session, and the election of the President, to wit, that in a total vacation, 
 they be tryed, and admitted, and rejected by Parliament ; and in a parti- 
 cular vacation, they be tried, and admitted, and rejected by the other 
 
VI 
 
 Lords ; and that the President be chosen by the Lords themselves, con- 
 form to our old practique and express statute." After highly lauding the vote 
 on this subject, and endeavouring to show that it really was founded " on 
 our old practique and express statute," and that Charles IL had acted 
 against law in nominating Lord Stair President, " the Plotter" proceeds, — 
 
 " And as S assuming the office of President, upon the illegal choice 
 
 of the aforementioned King, was both an affronting and betraying of the 
 known laws of the kingdom ; so, his whole behaviour in that station was 
 of one piece and complexion with his entering upon it, being a continued 
 series of oppression and treachery to his country. For, besides that all 
 his verdicts between subject and subject were more ambiguous than the 
 Delphick Oracles, and the occasion of the commencement of innumerable 
 suits in place of the determining of any, he was the principal minister of 
 
 all L 's arbitrariness, and of King Charles's usurpations. Nor was 
 
 there a rapine or murder committed in the kingdom, under the counte- 
 nance of royal authority, but what he was either the author of, the as- 
 sister in, or ready to justifie. And from his having been a military com- 
 mander, for asserting and vindicating the laws, rights, and liberties of the 
 kingdom, against the little pretended invasions of Charles I., he came to 
 overthrow and trample upon them all, in the quality of a civil officer, un- 
 der Charles IL Nor is there a man in the whole kingdom of Scotland 
 who hath been more accessary to the robberies and spoils, and who is more 
 stained and died with the bloody measures of the time than this Lord 
 S — , who his Majesty hath been imposed upon to constitute again Presi- 
 dent of the College of Justice. And as an aggravation of his crimes, he 
 hath perpetrated them under the vail of religion, and by forms of law, 
 which is the bringing the holy and righteous God to be an authorizer and 
 approver of his villainies, and the making the shield of our protection to be 
 
Vll 
 
 the sword of our ruin. But, there being some hopes that the world will be 
 speedily furnished with the history of his life, I shall say no more of him, 
 but shall leave him unto the expectation and dread of what the famous 
 
 Mr Robert D foretold would befal them and him in his person and 
 
 family ;* and of which, having tasted the first fruits in so many astonish- 
 ing instances, he may the more assuredly reckon upon the full harvest of 
 it. And the method he hath lately begun to steer, is the most likely way 
 imaginable to hasten upon him and his what that holy, and I might say 
 prophetical man, denounced against them. For, whereas the nation would 
 have been willing, upon his meer withdrawing from business, and not pro- 
 voking their justice, by crouding into the place in which he had so hei- 
 nously oflFended, to have left him to stand or fall at the great Tribunal, 
 and to have indempnify'd him as to life, honour, and fortune here, upon 
 the consideration of his having co-operated in the late Revolution, and of 
 his having attended upon his Majesty in his coming over to rescue and de- 
 liver the kingdom from popery and slavery ; he seems resolved to hasten 
 his own fate, and through putting himself, by new crimes, out of the capa- 
 city of mercy, to force the Estates of the Kingdom to a punishing of him, 
 both for them and for the old."f 
 
 The Apology is dated 1690, and must have been printed before the 
 20th of April, the date of the author's elevation to the Peerage, by the title 
 
 * Douglas was said to have prophesied, that Dahyraple should leave no family. 
 
 t Ferguson's pamphlet, for the use of which I am indebted to the kindness of T. Thom- 
 son, Esq. is a small 4to, of 63 pages, and contains both the Vindication of the Votes, and a 
 copy of the Address " delivered to his Majesty at Hampton Court, the 15th day of Octo- 
 ber, 1689." — The title-page to the whole bears, — " The late Proceedings and Votes of the 
 Parliament of Scotland, contained in an Address delivered to the King, signed by the Plu- 
 rality of the Members thereof. Stated and Vindicated." — Glasgow, Printed by Andrew 
 Hepburn, Anno Dom. 1689. 
 
 B 
 
Vlll 
 
 of Viscount of Stair. It is now an extremely rare tract ; and although a 
 MS. note on one of the two copies in the Advocates' Library may assert 
 correctly, that there were two impressions of it in 1690, yet, at all events, 
 it has not been reprinted since that period. 
 
 Edinburgh, 1st July, 1825. 
 
AN APOLOGY 
 
 FOR 
 
 SIR JAMES DALRYMPLE. 
 
 Self-defence is one of the first, and most levident piinciplt^^, by 
 the light of nature. Revelation hath made it yet more evident, that 
 we not only may, but must, defend our lives and fame against all 
 invasions thereon ; for these are not in our power, that we may take 
 them away, or suffer them to be taken away, except in the way of 
 justice, but they are intrusted to us, by God, to be defended in all 
 lawful ways we can. Assassination against mens lives is a most 
 cruel crime, striking at the very root of humane society and safety, 
 being so suddent aiM unexpected as it cannot be prevented, and 
 hardly evited: yet it is more difficile to prevent, or evite an assas- 
 sination of fame ; for an assassin of life can, much more easily, be 
 found out and punished, than an assassin of fame, who, by anony- 
 mous and unfamous libels, may, much more securely, wound the re- 
 putation, than the body ; and therefore, defamation, especially by in- 
 famous libels, is, by the law of the Romans, and all other civil na- 
 tions, accounted and punished as a most attrocious crime. Infamous 
 words cannot be, so easily, propagated and continued, as infamoue 
 libels, litera scripta manet 
 
2 AN APOLOGY FOR 
 
 I hope, no just person will blame me, for vindicating my fame and 
 reputation, from the false and calumnious aspersions wherewith I 
 am endeavoured to be branded, with the most vehement virolence, 
 in an anonymous pamphlet, entituled, " The late Proceedings and 
 Votes of the Parliament of Scotland, contained in an Address deli- 
 vered to the King, signed by the plurality of the Members thereof, 
 stated and vindicated." 
 
 ' 'lliis pamphlet bears to be printed at Glasgow, which is false, for 
 it/^as printed at Loudon, as the tenor of it importeth, speaking of 
 things done at London as done here ; which could not be sense, ap- 
 plyed to Glasgow, or to Scotland, but to London. It doth contain a 
 rapsody of false and ignorant aspersions, and reproaches, against the 
 King, and all he had then intrusted in his service ; yet, malice or 
 avarice had prevailed to have another impression at Edinburgh, (for 
 all satyrs sell well,) if it had not been discovered, and hindered, by 
 the Privy Council ; whereupon the printer was imprisoned, and a 
 committee of the Council appointed to consider the sa^le, in order 
 to a censure : but, the Parliament approaching, the vindication of 
 the King, and the censure of the authors and spreaders of this in- 
 famous libel, will be most proper there, — the expectation whereof 
 hath made several answers to it, ready for the press, to be forborn. 
 
 But, seing it is most venomous against me, though, at first, I did 
 neglect and contemn it, nam spreta vilescunt, yet, finding, that it is 
 industriously spread, and most aggravated against me, and commen- 
 tars made upon the general aspersions in it, I judged it my duty, to 
 apologize for myself, lest these that knew no better might think, I 
 
SIR JAMES DALRYMPLE. 3 
 
 was self-condemned, and could not answer, being conscious pf the 
 guilt I was charged with. 
 
 The sum of all that is charged against me is. That I have been a 
 changeling — appearing, at first, against tyranny and arbitrary go- 
 vernment, in the reign of King Charles I. ; and then, turning for the 
 same things, in the reign of King Charles II. ; and all under the 
 masque of religion : and having betrayed my countrey — in accepting 
 to be President of the Session, upon the King's nomination, contrair 
 to the act of parliament, by which, the President of the Session is to 
 be chosen by the Lords — and that I was concurring in all the evil 
 things were done, during the Duke of Lauderdale's ministry, against 
 the suffering Presbyterians, for their conscience, as being either au- 
 thor of, assistant in, or ready to justify these actings — and so no 
 man was more stained and dyed with blood and oppression than I — 
 and that the Rev. Mr Robert Dowglass did threaten, or foretell 
 judgment to me and my family — and that the Decisions of the Lords 
 of Session, which I have published, are as obscure as the Oracles of 
 Delphos. 
 
 I do not intend to make panegyricks in my own praise, but only 
 plainly and ingenuously, to declare the matter of fact, as in the 
 sight of God, who only is judge of the heart, and knoweth intirely 
 who are hypocrites, acting under the masque of religion, and who 
 are not ; yet this libeller is so bold as to conclude me an hypocrite, 
 acting under the masque of religion, which he cannot know ; and 
 yet he doth confess, that I did begin to act for liberty, and in a way 
 that appeared to be religious ; and he can as little know what I was 
 
4 AN APOLOGY FOR 
 
 the author of, when I was not the actor ; and far less, what I was 
 ready to justify, unless he had shown, that I had justified that which 
 was wicked, which his general aspersions of concurse can never do, 
 unless he had been a witness himself, in which case, his malice 
 would not have rested in generals, which are ever accounted calum- 
 nious, but would have been particular, at least in some eminent 
 acts ; and yet, there is but one particular against me, in all his bitter 
 libel, to wit, that I accepted to be President of the Session, on the 
 King's nomination, which, upon his own assertion only, he pretends 
 to be the betraying of the nation ; but, whether it be groundless or 
 not, will appear by what follows. 
 
 This also is obvious, that all his malice hath not prevailed with 
 him, to asperse me with anything that concerns my special trust, as 
 a Senator of the Colledge of Justice, wherein I continued more than 
 ten years ; or as President of it, wherein I continued above ten years 
 more ; and, if he be not ignorant of Scottish affairs, cannot but know, 
 that immediately after the Parliament 168 J, wherein being a mem- 
 ber, I was forward for the preservation of the Protestant religion, 
 and for preventing the incoming of Popery in the view of a Popish 
 successor ; and in the publick debate in Parliament, my reasons pre- 
 vailed to exclude all, from public trust, who did not swear to main- 
 tain the Protestant religion, according to the Confession of Faith of 
 the Church of Scotland, made at the time of Reformation, approven 
 and recorded in Parliament, without leaving it to the indefinite 
 name of the Protestant religion ; which the then Duke of York did, 
 the very night that act passed, declare to the late Earl of Argile, 
 
SIR JAMES DALRYMPLE. 6 
 
 that I had ruined all honest men, (meaning Papists,) by bringing in 
 that confession, as Argile's case, published by himself in print, bear- 
 eth : whereupon, there was immediately a Commission to the Lords 
 of Session, leaving me out, without the least pretence of reason, or 
 any order of law, but against the known law of the kingdom, where- 
 by the Lords of Session have their place ad vitam aut culpam, which 
 is the great security of the people, that their judges are not under 
 temptation, to be overruled by fear of being thrown out at pleasure. 
 That quarrel, with my freedom to the then duke, at his first co- 
 ming to Scotland, against attempting to weaken the Protestant in- 
 terest, in a publick speech I had at his entry, made me to be the 
 first person laid aside that ever was looked after. I was cited be- 
 fore the Criminal Judges, before the Council, before the Parliament, 
 and hundreds of examinations, and re-examinations were taken 
 against me, even of my most intimate domestick servants, and my 
 sisters-in-law, not in the regular way for probation, but by way of 
 inquisition to found a process, upon any special matter, which was 
 never done, because nothing was found against law. Can any judge 
 in Christendom show such a trial of integrity, who did, so long a 
 time, serve in such an eminent station ? No man was found to wit- 
 ness the least malversation or baseness, by indirect interest in any 
 cause, by taking any bribe or reward, by partiality or insolency, 
 though nothing would have been more acceptable to the Court, than, 
 by one blow against my fortune and fame, to have ruined me, upon 
 malversation in my trust as a Judge. It is a further evidence of my 
 integrity, that though I have been, fourty years, in publick imploy- 
 
6 AN APOLOGY FOR 
 
 ment, yet I have not bought an hundred pound sterling of rent 
 more than I have sold ; and when my sons came to the house, I did 
 most strictly prohibite them to solicite me in any case, which they 
 did exactly observe, and may safely declare it upon their oaths ; 
 and it is known to many others, that there might be no suspition 
 of their taking anything on my account, but only what was proper 
 for thes6 of their station. Yet, it is highly aggraged in this pam- 
 phlet, that the King restored me to be President of the Session, in 
 the same terms I was at first, my pension not being the half of 
 what was given since I was removed, though my former pension 
 bore to be during my natural life ; and though I had chearfuUy ad- 
 ventured, not only my life and fortune, but the ruine of my children, 
 with the King in his expedition to Britain, in the winter season, in 
 the seventieth year of my age, with all the chearfulness imaginable, 
 which made his Majesty express so much kindness to me, and tender- 
 ness of me, as did presently breed me no small measure of envy. 
 
 To return then to my charge of being a changeling — I was ever 
 fully perswaded (since I came to ripeness of age,) of the truth of the 
 Protestant religion, and of the constitution and government of my 
 mother church, and Prelacy reformed from Popery, though prudence 
 allowed me not, at all times, to make noise ; whereof, yet, I never 
 changed my opinion till this day, but did shew the same, both in 
 my practice and profession, to these I might use freedom with, and 
 never disowned it, or owned the contrar to any mortal. But, my 
 judgment and inclination never led me to use, or approve severity, 
 against these who suffered, for serving God in the way they were 
 
SIR JAMES DALRYMPLE. 7 
 
 perswaded, without idolatry, or overturning the principles of religion, 
 necessar for holiness and happiness ; so far I was from being the 
 author, or justifier of the severities used against these of my perswa- 
 sion, of whom many are my witnesses, that I did what I durst to 
 save them ; and I was alwayes so esteemed, and often publickly re- 
 proacht in council, for so doing. I did never medle in any Criminal 
 Court, nor was I ever judge, pleader, juror, or witness therein ; and 
 in the council, I did frequently declare my judgment, that though, in 
 other courts, the judges were oblidged to follow the law, although 
 rigorous ; yet, the council, to whom the policy and government of 
 the nation is committed by the King, was not bound so to apply the 
 severities of the law, but as they judged it as well prudent, as just. 
 I did often, publickly, declare my judgment against a letter procured 
 from King Charles II., making the capital and criminal punishments, 
 in relation to ecclesiastick affairs, to extend only to arbitrary pains 
 and penalties, that thereupon, persons accused might be holden as 
 confest, seing I ever judged, that no man is obliged to confess that 
 which is not otherwayes proven, against his life or fame ; I did also 
 oppose the enervating of all our judicatories, upon pretence of an 
 accumulative power, and the encroachment upon the priviledge of 
 the royal burrows, in the Parliament l'681. Let then my unfriends 
 be my judges, if it be a just assertion or inference, that none was 
 more stained with blood and oppression than I ; my opposition to 
 the course of the times doth appear, by the " Narrative of the Plot," 
 approven in the Parliament 1685. 
 
 As to the matter of civil government — since I was capable to con- 
 
 c 
 
8 AN APOLOGY FOR 
 
 sider the same, I have been ever perswaded, that it was both against 
 the interest and duty of kings, to use arbitrary government ; that both 
 king and subjects had their titles and rights, by law ; and that an 
 equal ballance of prerogative and liberty was necessar for the hap- 
 piness of a common-wealth. I have fully exprest my judgment 
 therein, in a Treatise, (which, when published,) I hope, will not be 
 unacceptable to so gracious and moderat a Prince as we now have, 
 nor to the people : I never gave an other impression, to any of our 
 Kings, whereof, I trust, our present King will bear me witness ; and 
 though some have been suspicious, that I have given ill characters 
 of them, or hindred them from such places or preferments as they 
 aimed at, yet, he knows, that at home and abroad, I have given fa- 
 vourable characters of many, but evil characters of none ; not that 
 I was afraid freely to tell him the truth, if he had required it, but 
 he did not, for he had abundance of that stuff from other hands, and 
 much more than was acceptable to him. 
 
 To shew how little I have been a changeling, or time-server — it 
 is commonly known, and there are hundreds can witness, that I was 
 excluded from the bar, for not taking the Usurper's tender, engaging 
 to be faithful to the Common-wealth of England, without King or 
 House of Lords, and never appeared again, till that tender was laid 
 aside. And though, thereafter, I was made a Judge, supposing I 
 would be as acceptable to the nation as any, yet, I did not imbrace 
 it, without the approbation of the most eminent of our ministers 
 that were then alive, who did wisely and justly distinguish, between 
 the commissions granted by usurpers, which did relate only to the 
 
SIR JAMES DALRYMPLE. 9 
 
 people, and which were no less necessary than if they had prohibit 
 baking or brewing, but by their warrand, and between these which 
 relate to councils for establishing the usurped power, or burdening the 
 people ; and therefore, though I was much invited, I never imbraced 
 a commission to any of their pretended Parliaments, or Councils of 
 State. And I know, that the King allowed his friends to accept 
 such commissions as were necessary for preserving his people ; and 
 therefore, when he was restored, I was one of the Senators of the Col- 
 ledge of Justice, in the first nomination. But, when the declaration 
 was enacted by Parliament, required of all in publick trust, I did 
 rather renounce my place than take it, and did retire unto the coun- 
 trey, where I lived a year, privatly and quietly. But, without my 
 desire or expectation, King Charles called me to London, and de- 
 sired me to return to my station in the Session ; and when I told him, 
 I could not sign the declaration, unless it were so explicat and re- 
 stricted, that by the general terms expressed in it, I did declare 
 against no more than what was opposite to his Majesties just right 
 and prerogative, and that I should have these terms from his Majesty, 
 in writing, which he granted, and I have yet to shew, which the act 
 of sederunt at my restitution doth import. And in the third place, 
 when the late Test was enacted in the Parliament 1681, though I 
 was well pleased with the first part of it, which was the safest hedge 
 against Papists that ever I saw, yet, I could not sign the latter part 
 of it ; and though it was not required to be signed till January 
 thereafter, yet, many were so zealous, as to subscribe it within a 
 few days after the Parliament. I did therefore go up to the King, 
 
10 AN APOLOGY FOR 
 
 to shew him, that I could not take that test, to desire liberty, with 
 his favour, to retire ; but, before I came, the new Commission for 
 the Session, wherein I was left out, was past, so that I had no 
 further to say ; and therefore I neither did resign, nor was ex- 
 cluded by the Act of the Test, seing the day was not come, but 
 by meer arbitrary power. Whereupon, I did retire to a private 
 life, and with assurance not to be disquieted therein ; but, when 
 I found, I was in continual suspicion, and that my tennents were 
 thrown in prison, and forced to give bonds, on pretence of con- 
 venticles, for more than they were worth, and that my rents 
 were arrested, I did ask the advice of the then King's Advocat, 
 whether he thought, I might be safe, and free of imprisonment ; 
 he told me faithfully and friendly, that he thought not, and owned 
 to the King, that he had so advised me ; whereupon, I was necessi- 
 tate to retire unto Holland, the place of the greatest common safety, 
 and yet there were frequent addresses to the Prince and States, to 
 remove me out of their Provinces ; and after I was gone, my eldest 
 son was fined in 500 pound sterling, upon Claverhouse's pickish ac- 
 cusation, that as Baillie of the Regality of Glenluce, he had fined 
 too low for conventicles ; and thereafter, he was taken summarily, 
 without citation, and brought to the tolbooth of Edinburgh, as if 
 he had been a malefactor, and detained three months, and then let 
 go, upon bond of confinement, without shewing the least pretence of 
 a cause, though he had never meddled in any publick matter, but 
 had served, in good reputation and imployment, as aii Advocat. 
 Let my enemies, then, show how many they can instance, in the 
 
SIR JAMES DALRYMPLE. 11 
 
 nation, that did thrice forsake their station, though both honourable 
 and lucrative, rather than comply with the corruption of the time, 
 or sign anything wherein they had not clearness of conscience, as I 
 have done, who quite my station for the Usurper's tender, and for 
 the declaration and test ; it is true, many were free of all these, but, 
 few deserted such stations as I was in, for them all. If these be con- 
 sistent with being a Proteus, or a changling, I leave it imto any just 
 person of judgment or discretion, to judge. 
 
 As to the pretence of my subserviency to the Duke of Lauder- 
 dale, during his ministry, in the evil things then done — beside that 
 it is general and calumnious, without an instance given, and that it 
 may be charged against all that were in the Government, during 
 the most part of the reign of King Charles II., it may be redargued 
 by clear instances and evidences in the contrary. I shall not load 
 the memory of the Duke of Lauderdale, who was most zealous for 
 the honour of his countrey, but was overruled, by measures laid be- 
 fore he came to his greatness, and by the difficulties he came to be 
 in, upon the account of his favouring these called phanaticks. He 
 came to Scotland in the year 1677 ; and upon representations made 
 by me and others, he concurred in making several Acts of Council, 
 correctory of the abuses that then run ; as particularly. That persons 
 were cited for church disorders, without special circumstances of 
 time or place ; but generally, in one or other of the days of all the 
 months, for several years ; and were put to their oaths upon the 
 whole libel, whereby many had been holden as confest, and there- 
 upon fined, imprisoned, and transported, like slaves, to forraigu plan- 
 
12 AN APOLOGY FOR 
 
 tations ; whereupon, the then Archbishop of St Andrews did repre- 
 sent to the Bishops in England, and to the Court, that he was over- 
 turning the settlement of this nation ; and he likewise said, that in 
 one moneth after he came hither, he had put the King's interest fur- 
 ther back than could be retrived in seven years. To make up which, 
 he was instigated to bring in the Highland Host upon the West of 
 Scotland, who treated them as enemies, not only by free quarter, 
 but by all insolencies and oppressions ; and to obtain an order of 
 council, to enjoyn a bond to be taken by all in publick trust, and 
 others in that countrey, to delate, apprehend, and bring to judg- 
 ment all the Presbyterian ministers that came ever in their power, 
 that had keeped any conventicles ; against both which, I did, with 
 all freedom and faithfulness, disswade him, and dissent ; and I do 
 not remember of any one person in Council or Session, that could 
 never be induced to subscribe that bond, or to approve that road, 
 but my self. And when, in the year 1679, several complaints were 
 made to King Charles, against Lauderdale and his brother, which 
 were published in print, and whereupon King Charles gave a pub- 
 lick audience, though I was there present, there was not the least 
 insinuation against me. ^ 
 
 As to the pretended obscurity of the decisions of the Lords, pub- 
 lished by me — it is like, the ignorance of law of this libeller made 
 them so tq him ; but I may say, without vanity, that no man did 
 so much, to make the law of this kingdom known and constant, as I 
 have done, that not only bred lawers, but generally, the nobihty 
 and gentry of the nation might know their rights ; for, I did, care- 
 
SIR JAMES DALRYMPLE. 13 
 
 fully and faithfully, observe the debates and decisions of the Lords 
 of Session, during all the time I was in it ; expressing mainly the 
 reasons that the Lords laid hold on, in all important cases, which 
 were not come to be incontroverted, as a beaten path, or were ob- 
 vious to common capacities ; and I did seldom eat or drink, and 
 scarce ever sleept, before I perused the informations that past every 
 sederunt day, and set down the decisions of the Lords, (though, 
 sometimes, not in the same terms as they were marked by the clerks ; 
 for, at that time, the interlocutors were all upon their trust, without 
 being revised and signed by the President, as now they are,) while 
 they were fresh in my memory ; which were published in two vo- 
 limies, after my removal : but, not being present at the time they 
 were printed, there are many escapes in printing, but seldom is 
 there anything of the sense unclear : and I did write the Institu- 
 tions of the Law of Scotland, and did derive it from that common 
 law that rules the world, and compared it with the laws civil and 
 canon, and with the custom of the neighbouring nations ; which 
 hath been so acceptable, that few considerable families of the nation 
 want the same, and I have seen them a-vending, both in England 
 and Holland. I was, also, the first author, and prime promoter of 
 that order of bringing in processes, for every person, without excep- 
 tion, as they were ready, that the greatest man of the nation could 
 not hav^ preference before the meanest, and that all might be free 
 of uncertain attendance ; whereas before, all depended upon the ar- 
 bitrary calling of the Lords, as they pleased ; so that every judge 
 might call his own friends, in his own week. 
 
14 AN APOLOGY FOR 
 
 I have been quarrelled for being the author of the banishing of 
 the Advocats from Edinburgh, in the year 1674, in the harvest 
 vaccance, which is taken notice of, in the grievances, as an incroach- 
 ment upon them, done by the then Privy Council, whereof I was 
 altogether free ; for it was done in the vacant time, when I was in 
 the countrey, and the inspection of the sederunts of the council will 
 demonstrat, that in that whole vaccance I was not present, yea, 
 seldom was I present in any vacance, and oft-times absent in ses- 
 sion time, especially when the affairs of the session required after- 
 noon meetings. God knows, I had no pleasure in the aflfairs that 
 were then most agitated in Council. 
 
 As to the pretended prediction of Mr Douglas — nothing can be 
 more false and calumnious. It is known to many, that Mr Dou- 
 glas did always express the greatest kindness and respect for me, 
 to his dying day. And his relict (who is a vertuous and pious 
 person, of a good family, and lived long with him), hath testified 
 the contrair, and offered to declare the same, in the most solemn way 
 could be required ; and that he never spoke any thing to the preju- 
 dice of me or my family. 
 
 Remains, now, the only special matter charged against me, to wit, 
 the acceptance to be President of the Session, by the King's nomi- 
 nation, not being elected by the Lords of Session. — As to which, I 
 shall give a plain and true account of the election of the President 
 of the Session, from the institution of the CoUedge of Justice, till 
 this time. First, It is evident, by the institution of the CoUedge of 
 Justice, that the President of the Session was to be constant Presi- 
 
SIR JAMES DALRYMPLE. 15 
 
 dent, and not ambulatory or changeable, and was to be chosen by 
 the King, wjiich was suitable to his royal authority, to which the 
 judicial and executive power is most proper, and so the nomination 
 of all judges. It did so continue, without controversy, till the 1579, 
 when there was a correctory law made, by the 93d Act of the 6th Par- 
 liament of King James VI., after the dimission of the Earl of Mor- 
 toun's Regency, and that the King had not past his pupillarity, 
 being born in June 1566, bearing expresly. That the King elected 
 young men, without gravity, knowledge, and experience, not having 
 sufficient living of their own, upon the session ; and therefore, con- 
 . trair qualifications were jprescribed ; and it was enacted. That all in- 
 trants should be sufficiently tryed, and examined, by a number of the 
 ordinary Lords, and in case that the person presented by the King 
 were not found so qualified by them, it should be leisom to the Lords 
 to refuse the person presented to them ; and it is declared, that the 
 President shall be chosen by the whole Lords of the condition and 
 qualifications above written, whether he be of the spiritual or tem- 
 poral estate, dispensing with that part of the institution of the Col- 
 ledge of Justice, bearing, that the President should be of the spiri- 
 tual estate. At this time, Baillie of Proven was President of the 
 Session, and continued so till the year 1593. By this Correctory Act, 
 the presentation or nomination of the Lords belongeth to the King, 
 and the Lords have power to admit, or refuse, as the person nomi- 
 nate were found qualified or unqualified. 
 
 After President Baillie's death, in the year 1593, the Lords listed 
 the Lords Vrquhart and Menmoor, and of that list choosed Vr- 
 
 D 
 
16 AN APOLOGY FOR 
 
 quhart to be President ; he continued till the year 1605, and then was 
 made Chancellor, and Secretary Elphingstoun succeedled him ; he 
 continued till the year 1609, and then President Prestoun was ad- 
 mitted ; and after his death, the Lord Binning (afterwards Earl 
 of Haddingtoun,) was President, and so continued till the death of 
 King James. When King Charles the First came to the crown, 
 Haddingtoun was made Privy Seal, and Sir James Skeen was by 
 the King presented to be President, who died in the year 1633. 
 But the manner of election of these four Presidents doth not ap- 
 pear, not being extant in the books of Sederunt. Upon the 1st of 
 November 1633, Sir Robert Spots wood was elected President upon 
 King Charles's letter to the Lords, bearing. That, as his father and 
 himself were wont to do, in the like cases, he did recommend the said 
 Sir Robert to be President, so that, by this letter of King Charles's, 
 it doth appear, that, whatever be the sence of that correctory law 
 anent the way and manner of electing the President by the Lords, 
 yet, that, thereafter, both King James and King Charles did recom- 
 mend the person who was admitted President by them. President 
 Spotswood continued President till the troubles, and then, in the re- 
 scinded Parliaments, there was an act, ordaining the Officers of State, 
 Counsellors, and Lords of Session, to be named by the Parliament, 
 but there was no mention of the election of the President ; yet, 
 though the former acts anent the election of a constant President 
 were not repealed, the Lords did name their President every session. 
 But at the Restauration of King Charles II., by the 2d act of his 
 first Parliament, in Anno 1661, it is declared, " That it is an inhe- 
 
SIR JAMES DALRYMPLE. IT 
 
 rent priviledge of the Crown, and an undoubted part of the royal 
 prerogative of the Kings of this kingdom, to have the sole choice and 
 appointment of the Officers of State, and Privy Counsellors, and the 
 nomination of the Lords of Session," as in former times preceding 
 the year 1637. And by the 11th Act of the same Parliament, the 
 acknowledgment of the King's Majestie's prerogative, doth resume 
 the former Act, in these terms, declaring, " That it is an inherent 
 priviledge of the Crown, and an undoubted part of the royal prero- 
 gative of the Kings of this kingdom, to have the sole choice and ap- 
 pointment of the Officers, Privy Counsellors, and Lords of Session," 
 which explains, that by the nomination of the Lords of Session in 
 the former Act, is not meant the presentation only, but the sole 
 choice and appointment of them, who being qualified according to 
 the laws, cannot be rejected, or refused to be admitted. According 
 to that and othe» acts, the King, by his letter recorded in Parlia- 
 ment, gives thanks to the Estates for asserting his prerogative, and 
 declares, that accordingly, he had named his Officers of State, Coun- 
 sellors, and the Lords of Session. In which nomination, being of 
 the same date with his Majesty's letter foresaid to the Parliament, 
 and which letter was presented in the Parliament, February 27, 
 1661, being the same day that the act asserting and acknowledging 
 his Majesty's prerogative did pass. Sir John Gilmour was appointed 
 President, and without any formality of list, choising, tryal, or ad- 
 mission, by the Lords, continued constant President, till, upon his 
 indisposition, he resigned ; and, upon his resignation, King Charles 
 named me to be constant President, and I was accordingly admit- 
 
18 AN APOLOGY FOR 
 
 ted by the Lords, unanimously, by their Act of Sederunt January 
 13, 1671, (which confutes the impudence and falshood of the libel- 
 ler's proposition, that I was the first that came to be constitute Pre- 
 sident by the King, and illegally obtruded upon the Lords of Ses- 
 sion, without being either chosen or approven by them,) and so con- 
 tinued till September 1681, when, by a new commission to the Ses- 
 sion, I was left out, and Sir George Gordon of Haddo, was therein 
 nominat constant President, without any consent or choice of the 
 Lords ; and after he was made Chancellor, Sir David Falconer of 
 Newton ; and after his death. Sir George Lockhart of Carnwath, 
 were, by the King's letters, named Presidents, and admitted in the 
 same manner as I was ; and from King Charles' return till this last 
 Session of Parliament, there was never the least scruple, motion, or 
 question of any further requisite for the legal establishment of the 
 President of Session ; albeit, in the year 1674, much dislike was 
 vented, and parties stated against the Session. And it is strange 
 that the eminentest lawers that ever were of the nation, could have 
 been so incircumspect, as not to have a legal establishment of their 
 title. So that it is plain, that the Parliament 1661, was of the opi- 
 nion of King Charles I., That it was the King's right, and that they 
 had been in use to name, present, and recommend, as well the Pre- 
 sident as other Lords of Session. And to conclude this period, I 
 cannot omit to take notice of the ignorance of the libeller, who as- 
 serts, that all the Presidents, since 1579, till the year 1661, were 
 the Lord Proven, Vrquhart, Currihill, Sir R. Spotswood, and Lord 
 Durie ; though it be known to the least intelligent, that the Lord 
 
SIR JAMES DALRYMPLE. 19 
 
 Balmerino, Secretary; Preston of Pennicook, Collector General; and 
 the Lord Binning, Secretary, (afterwards Earl of Haddingtoun,) 
 were successively Presidents of the Session, after the Lord Vr- 
 quhart, and before the Lord Curriehil; but it seems, he hath industri- 
 ously omited the mentioning of them, lest they, being great mi- 
 nisters of state and favourites, their admission by the Lords might 
 have been suspected to have proceeded upon the King's recommen- 
 dation, as well as mine : and the Lord Durie was never chosen nor 
 admitted constant President, but sometimes Vice-President, in the 
 absence of Curriehil, and Sir Robert Spotswood, and after the year 
 1641, was sometimes chosen for a session, as was the Lord Inner- 
 pefFer, Foderen, Balcomie, &c. 
 
 But suppose, it were as clear as the light, that the King had nei- 
 ther right to elect, nominat, nor present the President of Session, 
 but had done it, in all these cases, without warrand ; yet, no man 
 that hath the least knowledge of law can refuse, that the disposition 
 of him that hath no right, with consent of him that hath right, is a 
 valid and sufficient right, as if the consenter had been disponer, se- 
 ing his consent communicats all right he had when he did consent ; 
 and therefore, the consent of the Lords to the King's election, by their 
 express admission, leavs no pretence of quarel ; and though the vote 
 of Parliament, declaring that the President of Session shall be elect- 
 ed by the Lords, had then past in an Act of Parliament, it could 
 only revive the Act of Parliament 1579, and could but have effect 
 adfutura, and doth not declare any thing ad 'prcBterita, and so 
 could not touch my title, which had both the consent of the Lords, 
 
20 AN APOLOGY. 
 
 in anno 1671, and renewed in anno 1689 ; as in the case of Presi- 
 dent Proven, who being admitted President by the Kings nomina- 
 tion, did not, by reason of the subsequent correctory law 1579, either 
 cease to be President, or was of new elected, but, by vertue of his 
 former admission, continued till he died. And now, after all this, I 
 appeal to the conscience of all just and unbyassed persons, if this li- 
 beller hath any just pretence, that I have betrayed my countrey, by 
 accepting to be President of the Session. I hope, these that have 
 charity, that men may aim at the service of God and their country, 
 more than their own interest, will not conclude, that my interest was 
 the chief motive that made me resume so heavy a burden, in my pre- 
 sent circumstances. And it is known to many of eminent quality, 
 that while Sir George Lockhart lived, I would neither desire nor ac- 
 cept of this charge ; nor had I any doubt, but that the King would 
 have provided me as well as by it ; nor did I ever hear, that any 
 number of these who were for a change did propose a person which 
 were fitted, and would be commonly acceptable, in my place. 
 
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