Chapter I: Introduction: The Manuscripts (1)

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 £100 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.]