CJorn? U Kam ^rlyool Hibrary Cornell University Library KDC 296.056 V.2 Lord advocates of Scotland : 3 1924 024 630 216 The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024630216 THE LORD ADVOCATES OF SCOTLAND Edinbv/rgh : Printed by Thomas and Archibald Constable FOR DAVID DOUGLAS. LONDON . HAMILTON, ADAMS, AND CO. CAMBRIDGK MACMILLAN AND BOWES. GLASGOW JAMES MACLEHOSE AND SONS. THE LORD ADVOCATES OP SCOTLAND FROM THE CLOSE OF THE FIFTEENTH CENTURY TO THE PASSING OF THE REFORM BILL BY GEOEGE W. T.^MOND ADVOCATE VOL. XL EDINBUEGH DAVID DOUGLAS, 15 CASTLE STEEET MDCCCLXXXm [All rights Eesened.] $i/^xa, CONTENTS OF VOLUME TI. 1711-1746. CHAPTER XII. THE REBELLION OF 1745. 1741-1742. 21st Sept. 1745. Chables Ekskine appointed Loyd Ad^cate, 1 His early Career, . . ' ^ ■9k ■ 1 Appointed Solicitor-Greneral, 2 Lord Advocate, 2 Justioe-Olerk, 3 ROBEET CeAIQIB, 3 Glendoick, . 5 The Fall of Walpole, 5 Marquis of Tweeddale appointed Secretary of Statt for Scotland, 6 Craigie appointed Lord Advocate, 6 Returned for the Dornoch Burghs, 9 Hi a dislike to Politics, 9 The Tea Question, . 10 Approach of the Rebellion, . 12 Ignorance of the English Government, 13 Employment of Spies, 14 Progress of the Rebellion, . 15 Lord George Murray, 15 Sir John Cope, 16 The Volunteers, 17 State of Edinburgh, 18 Prestonpans, 21 Craigie resigns oifice, 23 VI CONTENTS. 1746. Abolition of the office of Secretary of State for * Scotland, .... 24 Difficulty as to the office of Lord President, 25 Craigie's Private Practice, . 25 Lord Kinnoul, . . . • 26 Craigie appointed Lord President, . 27 His Death, .... 27 1746-1775. CHAPTEE XIII. LEGISLATION. Scotland from 1746 to 1775, 28 William Gbant of Preatongrange, . 29 Appointed Lord Advocate, 30 English feeling against Scotland, . 31 Cumberland, 31 The Disarming Act, 32 The Highland Dress, 32 Remedial Legislation, 33 Heritable Jurisdictions, 33 The Lord Chancellor's Resolutions, 33 Suggestions of the Scottish Judges, 34 The Heritable Jurisdictions Bill, 35 Debate on the Second Reading, 36 1747. The Bill carried. 37 Principle of the Measure, . 37 Wardholdinga abolished, 38 Jrnie 1747. Dissolution of Parliament, . 38 Prosecutions on account of the Rebellion, . 38 Impeachment of Lovat, 39 Trial of Provost Stewart, . 39 Claims for Compensation under the Heritable Juris dictions Act, .... 41 Appointment of new SherifiFs, 42 State of Scottish Business, . 43 Proposed Payment to the City of Glasgow, 45 Lord Advocate Grant's Speech, 46 State of the Highlands, 47 Policy of the Government, . 48 The Forfeited Estates, 48 CONTENTS. Vll The Forfeited Estates Act, . Conduct of the Lord Advocate, The Highland Tenants, Payment of Kent resisted, . The Factors, . May 1762. Murder of Campbell of Glenure, Trial of James Stewart, Unfair nature of the proceedings. The Lord Advocate's Speech, A packed Jury, Conviction of Stewart, Reason of the Prosecution, . Grant appointed a Judge of the Court of Session, His Death, and Descendants, . , Robert Dundas of Arniston, His early Career, Solicitor-General, Dundas and Craigie, Dundas resigns the office of Solicitor-General, and is chosen Dean of Faculty. Returned for Midlothian, Appointed Lord Advocate, Speech on the Press-gangs, June 1760. Appointed Lord President, The Douglas Cause, . Judgment of the Court of Session, Feb. 1769. Reversed by the House of Lords, Attack on the President's House by the Mob in Edinburgh, The Slave Case, istn Dec. 1787. Death of Lord President Dundas, Thomas Miller, Sheriff of Kirkcudbright, Solicitor-General, Lord Advocate, Trial of Nairn and Ogilvie, . No Appeal from the Court of Justiciary, Miller appointed Lord Justice-Clerk, Lord President, Sept. 1789. His Death, .... James MoNTGOMEBy, . Appointed Solicitor-General, PAGE 49 VIU CONTENTS. 1770. The Solicitor-General's Seat within the Bar, ^ The Whim, . Montgomery appointed Lord Advocate, Stanhope and Stobo, " The Father of the County," The Law of Entail, . The Montgomery Act, Montgomery appointed Lord Chief Baron, His Death, ..... PAGE 74 76 77 77 78 78 80 81 82 1775-1811. CHAPTER XIV. HENRY DUNDAS. Scotland from 1775 to 1806, . . 83 Dundas called to the Bar, ... 84 The General Assembly, . . 84 June 1766. Appointed Solicitor-General, . . 85 Society'in London, ..... 85 Dundas's first Speeches in the House of Commons, 86 May 1776. Appointed Lord Advocate, . . .87 Speeches on the American War, ... 87 His manner of speaking, .... 88 The King's opinion of Bundas, ... 89 Proposed Eepeal of the Penal Laws against the Roman Catholics, . . . .91 The Friends of the Protestant Literest, . . 91 Riots in Edinburgh, .... 92 Attention of Parliament called to the subject, 93 Policy of Dundas, ... 95 The Triumph of Intolerance, . 95 Rumours of an Invasion, . . 96 Dundas and the Press-gangs, . . 97 Discussions on the Economical Reform, . 98 April 1780. Mr. Dunning's resolutions on the influence of the Crown, ...... 99 Position of Lord Advocate Dundas in the House of Commons, ..... 100 Mr. Pitt's first Speech; . . . .100 Dundas pronounces an eulogy on Chatham, . lOl Compliments Mr. Pitt, ... jgi CONTENTS. IX March 1782. Ith May 1782. ls( JvXy 1782. Veb.-April 1783. Dec. 1783. 1784. 1791. 1794. March 1801. Dec. 1802. Debates on the American War, Close of Lord North's Administration, The Rockingham Ministry, . Dundas continues Lord Advocate, . Speech on the Afifairs of India, Warren Hastings, .... Mr. Pitt's motion on Parliamentary Reform, Opposed by Dundas, Dissensions in the Government, Death of Rockingham, The Shelbume Ministry, Dundas, who continues Lord Advocate, is made Treasurer of the Navy, and receives the pa tronage of all places in Scotland, Difficulties of the Government, The Coalition, Resistance of the King, .... The Coalition Ministry formed, Dundas continues Lord Advocate, . Mr. Pitt's Second Motion on Parliamentary Reform, Supported by Dundas, .... Dundas dismissed from office. The East India Bill, . . ■ . Fall of the Coalition Ministry, Mr. Pitt Prime Minister, Dundas appointed Treasurer of the Navy, . Strength of the Opposition, . Triumph of the Government, Dundas appointed President of the Indian Board of Control, ...... His attention to the Affairs of India, Restoration of the Forfeited Estates in Scotland, . Friendship of Pitt and Dundas, Charges against Warren Hastings, . The " Russian Armament, " Dundas appointed Home Secretary, Renewal of the East India Company's Charter, Dundas appointed Secretary at War, George iii. and the Papists, The Addington Admiaistration, Dundas out of office. Becomes Viscount Melville, PAGE 102 104 106 106 106 107 107 108 108 109 109 109 110 HI 112 113 113 113 113 114 116 117 117 118 118 119 120 120 121 122 125 128 130 132 134 135 135 136 136 CONTENTS. Negotiationa with Mr. Pitt, Resignation of Addington, . May 1804. Mr. Pitt again Prime Minister, Lord Melville first Lord of the Admiralty, His activity, ..... The Tenth Report, .... Charges against Lord Melville, Mr. Whitbread's Motion, . Wilberforce, . . . . . ^ The Speaker's casting vote, . Resignation of Lord Melville, His name erased from the list of Privy Councillors His defence at the bar of the Commons, Further proceedings against him, . Jem. 1806. Death of Mr. Pitt, .... Trial of Lord Melville, His Acquittal, Generous conduct to his Opponents, Is again sworn of the Privy Council, In failing health, .... 28a May 1811. His Death, .... Character of Lord Melville, . His control of the Elections in Scotland, . State of the Representation, Fictitious Votes, ..... One great blunder made by Lord Melville and his followers, ..... PAGE 136 137 137 137 137 138 139 140 141 142 142 144 145 147 149 149 150 151 152 152 153 154 157 158 159 162 1768-1823. CHAPTEE XV. HENRY ERSKINE AND ILAY CAMPBELL. Henry Ekskine, .... 163 Called to the Bar, ..... 163 His Popularity, ..... 163 1783. Appointed Lord Advocate by the Coalition Ministry, 164 A short term of ofl&oe, . . . .164 Chosen Dean of Faculty in 1785, . . 165 Supports the Opposition in 1795, . . .167 Is deprived of the Deanship, . jgg "The Independence of the Bar," . .169 CONTENTS. XI 1806. 180T. I Oct. 1817. Lord Advocate during the Ministry of "All the Talents," .... 169 Returned for the Haddington Burghs, 169 The management of Scottish Affairs, 170 Lord Moira, ..... 170 Lord Lauderdale, .... 170 Reform in the Court of Session, 170 Pall of Lord Grenville's Government, 172 Death of Lord President Blair, 172 Promotion refused to Erskine, 172 He retires from the Bar, 173 His closing years, 173 His. Death, ..... 174 Ilay Campbell, .... 174 Appointed Solicitor-General, 175 Lord Advocate, .... 175 Moves resolutions on the Court of Session, 176 Is appointed Lord President, 176 The Mbile Officium, .... 177 1792-1794. CHAPTEE XVI. STATE TRIALS. ROBEBT DUNDAS, .... 178 Is appointed Lord Advocate, 178 His Maiden Speech, 179 State of the Scottish Burghs, 179 The agitation for Burgh Reform not a Party move, ..... . 180 Refusal of Government to deal with the question. 181 The Whigs pledged to Burgh Reform, 181 Lord Advocate Dundas's BUI, 183 1792. The movement for Reform abandoned, 183 The Friends of the People, . 184 The Informer, ... 185 Thomas Muir, .... 186 His Arrest, . . . . • 187 30a Aiig. 1793. His Trial, ..... 188 Is convicted, ..... 193 12ft Sep*. 1793. Trial of Palmer, .... 194 Xll CONTENTS. The Society of United Scotsmen, . January 1794. Trials of Skirving and Margaret, . Trial of Gerrald, . . . • The Trials discussed in Parliament, Earl Stanhope's motion, Mr. Adam's motion. The Lord Advocate attacked by the Opposition, His Defence, . . . • Mr. Fox's Speech, .... Fate of the Convicts, August 1794. Trials for High Treason, Watt, ..... Downie, . . . . ' Execution of Watt, Close of Lord Advocate Dundas's career, . PA02 195 196 197 197 197 198 199 199 200 201 202 203 203 204 204 1801-1817. June 1804. CHAPTER XVII. HOPE, MONTGOMERY, AND COLQUHOUN. Charles Hope of Granton, .... 205 His Character, ..... 205 The Royal Edinburgh Volunteers, . 206 The Schoolmasters Act of 1803, . . .206 The Regimental Order, . . . .207 The case of Mr. Morison, .... 208 Mr. Whitbread moves a vote of censure on the Lord Advocate, .... 209 Hope's defence, ..... 209 His account of the office of Lord Advocate, . 210 Hope appointed Lord Justice-Clerk, . . 212 His correspondence with Mr. Morison, . 212 His apology accepted, . . . 215 Correspondence with Sheriff Forbes, . . 216 A warlike Judge, ..... 219 Hope appointed Lord President, . . . 219 Justice-General, ..... 220 The Doorkeepers of the Court of Session, . 220 Hope retires from the Beucli, . . . 222 Hia bearing as a Judge, .... 222 CONTENTS. XIU 1808. 181S. Sir Jambs Montgomery, Archibald Campbell Colquhoun, Appointed Lord Advocate in 1807, State of the Court of Session, Government determined to legislate on the subject. The Scottish Judges consulted, Lord Eldon's Bill, .... Trial by Jury in civil cases, Colquhoun appointed Lord Clerk Register, "The Land o' the Leal," . PAGE 223 224 224 225 226 226 227 228 229 229 1816-1819. 28m Jan. 18ir. 19(h July 1817. CHAPTER XVIII. LORD ADVOCATE MACONOCHIE. State of Politics in Scotland in 1816, State of the Bar, Maconochie appointed Lord Advocate, Condition of the country, . The spy Richmond, The Secret Oath, The Glasgow Conspiracy, Lord Advocate Maconochie returned to Parliament, Attack on the Prince Regent, Habeas Corpus Suspension Bill, Maconochie's first Speech, . Reads the Secret Oath to the House, The Bill passed, .... Trial of M'Laren and Baird, Trial of Neil Douglas, Andrew M'Kinlay, .... Efforts of Crown Counsel to obtain evidence, The Lord Advocate attacked in Parliament, His Defence, .... Trial of M'Kinlay, .... The witness Campbell, Crown counsel accused witness, Statement by Campbell, Acquittal of M'Kinlay, of tampering with the 230 231 231 231 232 234 235 237 237 237 238 238 239 239 241 242 242 243 244 245 245 246 247 248 XIV CONTENTS. The Lord Advocate's account of the case, Lord Archibald Hamilton's motion on the conduct of the Lord Advocate and his Deputes, Burgh Reform, .... Maconochie retires to the bench as Lord Meadow^ bank, . . His conduct as Lord Advocate, PAGE 248 252 253 254 255 1819-1830. CHAPTEE XIX. SIR WILLIAM RAE. 6* April 1820. 1817. Wth Jum 1822. Lord Eskgrove, .... 256 Sir William Rae appointed Lord Advocate, 256 State of the country, 257 Mr. George Kinloch, 257 Discontent in the West of Scotland, 258 The Radical war, .... 259 Skirmish at Bonnymuir, 260 Commission of Oyer and Terminer, 261 Result of the Prosecutions, 262 Popular feeling in Scotland, 264 The Pantheon Meeting, 265 Reform of the Jury Law, 267 Mr. Kennedy's Bill, 267 Opposed by the Lord Advocate, 269 Rejected, ..... 269 Lord Melville's Act, 269 Burgh Reform, .... 270 The Lord Advocate brings in a Bill, 270 Its unpopularity, .... 270 The Scottish Press, .... 271 The Scotsman founded. 272 Government resolve to strengthen the Tory Press, 272 The Glasgow Sentinel, 272 The Beacon, ..... 272 A system of libels, .... 272 Duel between Sir Alexander Boswell and James Stuart of Duneam, . . . . 273 Trial and Acquittal of Stuart, 274 CONTENTS. XV 1827. 'Ath Dec. 1828. ',6th June 1830. Proceedings against Borthwick, Mr. Aberoromby'a motion for a Committee of Inquiry into the Lord Advocate's conduct, Sir William Rae'a Defence, Mr. Abercromby's motion defeated, The Depute Advocates, The Lord Advocate escapes a Vote of Censure by majority of six, Discussion on the office of Lord Advocate, Retirement of Lord MelviUe from the management of Scottish Affairs, The business of Scotland conducted by the Home Secretary, .... The West Port Murders, Trial of Burke and M'Dougal, Proceedings against Hare, . Death of George IV., Troubles of the Government, Lord Advocate Rae threatens to resign if the Judi cature Bill is abandoned. The Bill passed, .... Dissolution of Parliament, and result of the General Election, Pall of the Wellington Ministry, . Close of Sir William Eae's career, . PAGE 274 276 280 282 282 283 284 288 289 289 291 294 297 297 297 297 297 298 298 1830-1834. CHAPTEE XX. JEFFREY AND THE REFORM BILL. 13th Dec. 1794. Early life of Francis Jeffrey Ji' \J1XJJX IJXIJXJ. 299 The Speculative Society, 300 Jeffrey called to the Bar, 301 His Marriage, 302 The Edinburgh Review, 302 Jeffrey and Macaulay, 303 Rise of Jeffrey at the Bar, 304 Dean of Faculty, 305 Goes to America, 306 His Second Marriage, 306 XVI CONTENTS. December 1830. 22d April 1831. Sd May 18S1. 8a July 1831. 8ft October 1831. 22d October 1S31. 6th Dec. 1831. 7th May 1832. 15ft May-ithjune, Maoaulay's account of his domestic life, Appointed Lord Advocate, . Cockburn, ..... Management of Scottish Affairs, Jeffrey returned to Parliament, State of the Representation in Scotland, . The English Reform Bill introduced, Jeffrey's first Speech, The Bill for Scotland, Second reading of the English Bill carried. Illuminations, and Riot in Edinburgh, Defeat of Government in Committee, Dissolution of Parliament, . Scenes in Scotland at the General Election, The Edinburgh Election, Defeat of Jeffrey, .... Rioting, ..... Jeffrey returned for Malton and the Perth Burghs Elects to sit for the Perth Burghs, . Result of the General Election, Second Reading of the new Reform Bill carried. The Scottish Bill brought in by Jefirey, ,His Speech on the Second Reading, The Bill in Committee, The English Bill thrown out by the House of Lords, Lord Ebrington's motion for a vote of continued confidence in the Government carried, . Prorogation of Parliament, . State of public feeling in Scotland, Meeting of Parliament, The third English Reform Bill read a second time in the House of Lords, . Government defeated in Committee, Lord Grey resigns, .... Indignation in Scotland, End of the crisis, and passing of the English Re form Bill, .... Passing of the Reform Bill for Scotland, The Reform Jubilee, The General Election, Weakness of the Tory newspapers, Blackwood, .... CONTENTS. xvii Result of the General Election in Scotland, . 331 Jeffrey returned for Edinburgh, . . .331 Difficulties of his position, .... 333 State of Scottish business, .... 334 The Burgh Reform Bill, . . 335 May 1834. Jeffrey becomes a Lord of Session, . . 336 Lord Grey's visit to Scotland, . . . 338 Eulogy pronounced on Jeffrey by Mr. Aberoromby at the " Grey Festival, " . . .339 Lord Jeffrey's conduct on the Bench, . . 339 His last years, ..... 339 mh Jan. 1850. His Death, ...... 340 Index, 341 VOL. IL CHAPTER XII. THE REBELLION OF 1745. Chaeles Erskine of Tinwald became Lord Advocate when Duncan Forbes was appointed President of the Court. He came of an old family. His grandfather, the Honourable Sir Charles Erskine of Alva, fourth son of John Earl of Mar and Lady Marie Stewart, daughter of the Duke of Lennox, married Mary Hope, second daughter of Lord Advocate Sir Thomas Hope. Of this marriage was born Sir John Erskine of Alva, father of Charles Erskine of Tinwald. Erskine is said to have studied for the Church ; but he soon abandoned the idea of taking orders. When only in his twenty -fifth year he was appointed one of the Eegents of the University of Edinburgh. He held this office, in which he taught Logic, Ethics, Metaphysics, and Natural Philosophy, until 1707, when he was made Professor of Public Law in the University of Edinburgh.^ He then resolved to be an advo- cate, and was called to the bar on the 14th of July 1711.^ For a short time after he was called he continued to give lectures ; but his practice soon occupied the whole of his time.* In 1714 he was an Advocate- 1 This was a Crown appointment. The only other professorship, in the University of Edinburgh, in the gift of the Crown was that of Church History. 2 Memoirs of Kames, i. 37, 38 ; Brunton and Haig, 513. 3 The Scots Courant of 12th to 14th Not. 1711 contains the following advertise- ment : " Mr. Charles Erskine, her Majesty's Professor of Public Law in the University of Edinburgh, designs to begin his private Lectures on the Laws of VOL. n. A 2 THE LOED ADVOCATES OF SCOTLAND. [l725-l741.. Depute.^ He became one of the leaders of the bar; pur-i chased the estate of Tinwald in Dumfriesshire; and in April 1722 was returned to Parliament as member for that county. In May 1725, when Forbes became Lord Advocate, Erskine was appointed Solicitor-General. Hitherto the onlyj counsel allowed to plead within the bar had been the Lord' Advocate ; but on this occasion a change was made. The new Solicitor-General presented to the Court "a warrant under the Sign-Manual, subscribed by the Secretary of State for Scotland, in these terms : " Whereas we have appointee^ Mr. Charles Areskine, advocate, to be sole Solicitor for that part of Great Britain called Scotland, and we being pleasec^ to show him a further mark of our royal favour, it is our will and pleasure that a seat be placed for him within the bar of your Court, where and from whence he may be at liberty to plead cases in your presence ; and we do hereby direct you to cause such to be placed accordingly."^ At the general elections of 1727 and 1734 he was returned for Dumfriesshire.^ In 1737 he succeeded Forbes as Lord Advocate, and strenuously supported the Scottish policy of the Walpole Ministry till 1741. At the general election of that year Sir John Douglas of Kelhead became member for Dumfriesshire ; and Lord Advocate Erskine was returned for the Sutherlandshire district of burghs.* His election was, however, declared void in the following year, and he resigned office. His successor was Eobert Craigie of Glendoick, to whom he wrote the following letter of congra- tulation : — " It 's commonly believed we love our heirs but seldom our successors; and sometimes we don't our heirs Nature and Nations, on Friday next, at 5 a' clock in the Afternoon, at Ms Lodgings in Fraaer's Land." 1 His appointment was peculiar. He was made Advocate-Depute, for tie Western Circuit, tiy a Commission from Queen Anne, granted under the Privy Seal. West Circuit Record, 1st May 1714. ^ Books of Sederunt, 10th June 1725. ' Pari. Papers, 1878, Ixii. ii. 70, 83. « These burghs were Dornoch, Tain, Dingwall, Wick, and Kirkwall. ^^"•] LORD ADVOCATE CKAIGIE. 3 because they are to be our Successors. However that is not the case with me ; you have been mentioned to the King by the Marquis of Tweeddale as my Saccessor, and I heartily agree to it, and wish you success and prosperity in the Office ; You are happy in having to do with a Patron who is a man of truth and honour, and this is a great encourage- ment to you. To show I 'm sincere in all this, I have used my best endeavours you should be elected in my room, the election being found void." ^ He returned to practice at the bar; but there was a vacancy on the bench in November 1 744, and he received the appointment. Four years later he succeeded Fletcher of Milton as Lord Justice-Clerk; and died, after filling that post to the satisfaction of the country, in April 1763.^ Eobert Craigie, who became Lord Advocate on the resig- nation of Erskine, was a younger son of Lawrence Craigie of KUgraston, in Perthshire, and was born, it is supposed, in 1685. Of his early life no memorials are in existence. He was called to the bar on the 3d of January 1710; and, during the first years of his professional life, gave private lectures to students of law.^ But his practice increased, and after a short time the lectures were given up. After he had been five years at the bar, he was appointed, along with Lord Edward Murray, a Sheriff-Depute of Perth- shire, by the Duke of Athole, who was then Hereditary Sheriff of that county. In the following year he was one of the Crown counsel named to prosecute the rebels at Carlisle.* 1 Erskine to Craigie, 2d March 1742, Glendoick MSS. ' Brunton and Haig, 514. 3 Memoirs of Kames, i. 42. "Mr. Eobert Craigie, Advocate, begins his Lessons upon the Institutes and Digests of the Civil Law, upon the Sixth day of November next, at. his Lodgings, in the Writers' Court." Scots Courant, 8th to 10th Oct. 1711. * The following was the Commission which Craigie received on this occasion : 4 THE I,OED ADVOCATES OF SCOTLAND. [l719. In the last chapter I have mentioned that Dundas, when Solicitor-General, appointed him to act as his depute.^ This was in 1719. A fee-book, kept by Craigie, and commencing in this year, has been preserved, from the entries in which the progress of his business can be traced. The first fee entered is one received at the beginning of the winter session of 1719: "Nov. 10th.— Eeceived from George Kennedy, for Gleneagles, one guinea." He does not get another fee for a week, when ten guineas are sent him. In the beginning of December he is paid, "From Thomas Fordyce, for the Trustees to the Forfeited Estates, for pre- paring the cases appealed, ten guineas." His practice increased rapidly ; and for the next twenty years he lived an uneventful life of plodding industry. He was not a man of brilliant talents. " He had none," says Tytler, " of the exterior accomplishments that attract atten- tion ; and though an acute and able reasoner, his manner of pleading was dry, prolix, and deficient both in grace and energy." ^ But his untiring application was rewarded ; and he became one of the busiest counsel in the Parliament House. In addition to the fruits of his labours at the bar, he acquired a fortune by his marriage to Barbara Stewart, " By his Royal Highness, the Prince of Wales : Whereas we judge it necessary in this Juncture, and in the absence of Sir David Dalrymple, his Majesty's Advocate, that some persons should be appointed to be Assessors and assistants to the said Advocate and his Majesty's Solicitor-General in all prosecutions, civil or criminal, wherein his Majesty's and the publick service is concerned, and in particular for carrying on, and bringing to a Conclusion, the Prosecutions against the Criminals, who by a Special Commission are to be tried at Carlisle ; And we, being fully satisfied of your Abilities for discharging this Trust, have thought fit, and do hereby in his Majesty's Name, nominate and appoint you, and each of you, to he assessors to his Majesty's Advocate and Solicitor-General, and to be assistant in all publick Causes, to the Ends and for the Purposes aforesaid, to continue till his Majesty shall think fit to revoke the same ; For which this shall be your sufficient warrant. Given at the Court at Hampton Court the 13th day of Sep- tember 1716, in the third year of his Majesty's reign. By his Royal Highness's , command, Townshend. To Robert Craigie and Alexander Gairdin, Esquires, Advocates at Edinburgh." Glendoick MSS. 1 Supra, vol. i. p. 311. " Memoirs of Karnes, i. 42. 1742.] THE FALL OF WALPOLE. 5 daughter and heiress of Charles Stewart of Carie. Part of his means he invested in purchasing the lands of Glendoick, in Perthshire. This estate, lying in the Carse of Gowrie, one of the richest agricultural districts in Scotland, was Craigie's favourite home. He was fond of a country life, and, when- ever he could escape from his work in Edinburgh, went to Glendoick, where he planted, and farmed, and made im- provements.^ From these pursuits, and from the quiet of private life, he was suddenly hurried into a public career in the spring of 1742. The. fall of Walpole had just taken place. This crisis had been foreseen for some time. In February 1741 Sandys had moved, in the House of Commons, that an address be presented to the King, praying him to remove the great Minister from his councils. In the House of Lords a similar motion was made by Carteret, and supported by Argyll ; but in both Houses Ministers were in a majority. In April Parliament was dissolved. The general election weakened the Government. In England many seats were lost, though most of the Government candidates were returned. In Scotland, in spite of the efforts of Lord Islay, who was opposed by his brother the Duke of Argyll, a majority of Opposition members were elected ; and Walpole met the new Parliament, not beaten, but with a diminished party. Old veterans knew that a Government which counted on a majority of only fifteen or sixteen votes could not long continue in power. The Opposition soon showed 1 Glendoick MSS. I hare to thank the trustees of the late Major Craigie of Glendoick for an opportunity of perusing this valuable collection of manuscripts, a portion of which is printed in Jesse's " Memoirs of the Pretenders and their Adherents " (ii. 265). The Glendoick MSS. consist, in addition to private and family letters, of (1) The original commissions for the numerous appointments held by Craigie ; (2) A number of memoranda connected with the government of Scotland from 1741 till 1760; (3) Drafts of proposed Acts of Parliament, with notes on the defects in the state of the law ; and (4) a voluminous official corre- spondence between the Lord Advocate and the Secretaries and Under-Secretaries of State in London. THE LOKD ADVOCATES OF SCOTLAND. [1742. its strength ; and, in various debates. Ministers were barely- able to hold their own. Walpole did not resign; but, on the 28th of January 1742, the Opposition had a majority of one in a division on the Chippenham election petition. This narrow vote ended the long and glorious career of Walpole. Early in February he resigned, and became Earl of Orford. The Wilmington Ministry was now formed ; and the chief offices were speedily filled. Wilmington was Pirst Lord of the Treasury, Sandys was Chancellor of the Exchequer, and Carteret was Secretary of State. I have already mentioned that the Earl of Selkirk became Secretary of State for Scotland in 1731.1 He died in 1739; and no one had since been appointed in his place. But now Pulteney, to whom had been intrusted the task of arranging the distribution of places in the new Government, insisted that the office of Scottish Minister should be revived. The Duke of Argyll, who had been appointed Master-General of the Ordnance, with a seat in the Cabinet, desired to have in his own hands the entire control of Scottish business, together • with the patronage of all offices in Scotland. But Pulteney was firm ; and the Marquis of Tweeddale was appointed. Secretary of State for Scotland. It was thought proper that there should be also an Under-Secretary ; and this place was given to Mr., afterwards well known as Sir Andrew, Mitchell. It was at this time that Craigie became Lord Advocate. On his appointment he received the following letter from the Secretary of State for Scotland: "Sir, My Lord Ad- vocate's seat in Parliament being yesterday vacated, he intends to wait on His Majesty to-morrow in order to resign his Office; and as I have this day acquainted His Majesty with this his resolution. He has been pleased to order me to prepare a Warrant for your being Advocate for Scotland, which I hope shall be transmitted to you in a 1 Supra, vol. i. p. 344. 1742.] COKKESPONDENCE "WITH GOVERKMENT. 7 very few days. It gives me great pleasure to have had so early an opportunity of showing the regard I have for you, and of recommending one so well qualified as you are to serve His Majesty in an Office of so great trust. The zeal and affection you have always shown for His Majesty's Person and Government, as well as your distinguished abilities in your profession, make me flatter myself His Majesty's choice will meet with universal approbation. The House of Commons having yesterday declared the Election of the District of Dornoch, Dingwall, &c., void, affords a present opportunity for your coming into Parliament ; and as your presence there may be of great advantage to His M-ajesty's Service, I persuade myself you will not decline it. I have obtained assurances from the Earl of Sutherland and Lord Portrose of their interest in these Towns on your behalf; and I hope the Earl of Morton and Colonel Douglas will be prevailed upon to concur, which will make your attempt easy. I thought proper to give you this early notice of His Majesty's gracious intentions, that you may be the better enabled to take the proper and necessary steps to forward the views of those who have now the honour to be in His Majesty's Councils." ^ Soon after, Mitchell also wrote to the new Lord Advocate the first of many letters which passed between them : " I beg leaTC to seize this early opportunity of congratulating you on the honour His Majesty has done you, by appointing you his Advocate for Scotland, and to assure you that his choice is universally approved of here. It is the wish of almost every man, who thinks abilities and integrity quali- fications necessary in Parliament, to see you there, but of none more sincerely than of, my Lord, your most humble serv*.. And'. Mitchell. P.S. — When you are pleased to honor me with your Commands, direct for me at the 1 Tweeddale to Craigie, 2d March, 1742, Gleudoick MSS. THE LORD ADVOCATES OF SCOTLAND. [1742. office of the Most Honorable the Marquis of Tweeddale, one of His Majesty's Principal Secretaries of State, Whitehall.''^ The Marquis of Tweeddale and Mitchell did all in their power to assist Craigie in his new position. It was arranged that a regular correspondence should be carried on when the Lord Advocate was not in London, and that his letters should be such as Tweeddale could show to other members of the Government. Any private matters were to be written- separately. In the absence of Craigie from Edinburgh it was arranged that the Solicitor-General, Eobert Dundas, should write to the Secretary of State. The appointment of Depute- Advocates was left entirely to the Lord Advocate.^ Tweeddale was anxious that the Lord Advocate should at once obtain a seat in Parliament, and it was arranged that he should succeed Erskine, the late Advocate, who had been unseated. The Earl of Sutherland requested him to stand for the Dornoch district of burghs, and wrote as follows : " My Towns being vacant, and the Advocate declining to sitt in Parliament, I could not in my opinion chuse a more worthy representitive then you. The long Conextion you have had with my family makes me very glad its in my Power to express my friendship by a prooff : and the honesty and integrity of your Character gives me equal satisfaction that I can serve the publik by bringing you into Parlliament. I sincerly wish you success in the ensuing affair, and you may depend on a firm friend in. Sir, your most oblidgd humble servant, Sutherland."* The election was conducted in accordance with the usages of the time. Craigie did not appear on the scene, 1 Mitchell to Craigie, 6th March 1742, Glendoick MSS. 2 " I have had many applications on hehalf of different persons! who are desirous to serve as your Deputies on the Circuits ; but 1 have refused to inter- fere, as thinking you could only determine who were the fittest persons for His Majesty's service and your own ease." Tweeddale to Craigie, 25th March 1742, Glendoick MSS. 3 Earl of Sutherland to Craigie, 2d March 1742, ibid. 1742.] ckaigie's dislike to politics. 9 but was represented by agents. The letters which he received show that the customary intrigues were carried on in connection with the choice of the delegates from the burghs.^ One friend writes suggesting that a sum of money should be expended in bribing the Town Councils of the various burghs ; and the Lord Advocate's agent, in a letter written from Dingwall, "after a three days' debauch," declares, " There 's no argument here more powerful than strong brandy and claret." He was duly elected on the 2dof April 1742. Lord Advocate Craigie was very unwilling to leave Edin- burgh and give up his time to politics. His dislike to poli- tical life was so well known that before his appointment it had been asserted that he would not accept of&ce. Tweed- dale was not only anxious that he should have a seat in the House of Commons, biit wished him to spend much of his time in London. In the autumn after his appointment the Advocate was at Glendoick, looking forward with disgust to the approaching meeting of Parliament. " I am glad," Tweeddale writes at this time, " to hear you have had such fine harvest weather; but allow me to give your lordship one advice : the less farm you have now in your own hands the more it will turn to your advantage, since your thoughts must now necessarily be diverted from giving due attention to the Plough." This hint was not taken at once. Craigie wrote both to Tweeddale and to Mitchell, begging that he might be allowed to remain in Scotland, attending to the legal duties of his ofi&ce and to his private practice. Many letters on the subject passed between the Lord Advocate and the Secretary of State for Scotland, the Advocate ask- ing leave to stay at home, and the Secretary urging him 1 The burghs each sent a delegate, chosen by the Town Councils, and the delegates chose the member of Parliament. As there were five burghs in this district, there were five delegates, who had the election in their hands. This was the .system in Scotland till 1832. 10 THE LOUD ADVOCATES OF SCOTLAND. [^''^2. to be in London some days before the meeting of Parlia-i ment. So earnestly did Craigie resist leaving Scotland thalj Tweeddale apologised for the way in which he pressed him to do so. "I can assure you," he wrote, "it is no less dis- agreeable to me to write to you so pressingly at this time than it will be for you to read it, since I am but too sensibL how very hard it is upon you, and on many accounts very inconvenient ; but I am so well acquainted with the good disposition of your, heart that I know any such inconveni- ences will have no weight with you when your friends and the real service of your country calls upon you ; and I can sincerely assure you I would not write to you in this strain did hot I think it necessary, as I know from the best autho-| rity it will be most agreeable here that you be here againsf the opening of the sessions ; and however the credit of youi office of Advocate may suffer in your absence in Scotland, I am sure it will not here. I own you have had a hard begiu- ning, and a troublesome entering into public business, but I hope there is a good time coming."^ Urged in this waj Craigie found it necessary to attend to his political duties. » On one occasion Craigie's liking for country pursuits, and want of interest in business which was not purely legal, brought him under the censure of Lord President Forbes. The President transmitted to Government a memo- rial on the state of the revenue in Scotland. The linen manufacture, he said, was thriving ; but every other industry was languishing. The fisheries had totally failed for some years ; the foreign trade of Glasgow was crippled by the war with Spain; the currency was almost entirely paper. The annual expense of the Civil List, amounting to about fifty-one thousand pounds, was met chiefly out of the excise duties ; but the excise had fallen nearly fifty per cent, during the last few years. The cause of this loss of revenue 1 Tweeddale to Craigie, 26tli October 17i2, Glendoiolc MSS. 743.] THE TEA QUESTION. 1 1 ?orbes believed to be the increase in the consumption of ea. It had been noticed that while the use of tea was spreading, the revenue derived from the tea-duty was liminishing. A regular system, of smuggling had been istablished ; and tea was sold in Scotland at from half-a- irown to three or four shillings a pound. The working (lasses began to use it, and it took the place of ale at their norning and evening meals. "At present," Forbes ex- ilaimed with indignation, " there are very few cobblers in my of the Burroughs of this country who do not sit down ;ravely with their Wives and families to Tea , . . and the ilevenue of Excise has sunk in proportion as this villainous )ractice has grown." The remedy suggested by the Presi- lent was to prohibit the use of tea by all persons who were lot rich enough to buy it after the duty had been paid ; and uch was his hatred to " this drug," that he thought servants, iven in the houses, of the rich, should not be allowed to con- ume it. This project Forbes laid before the Lord Advocate, .nd pressed him to have a bill ready for the consideration of Tovernment as soon as possible. " For," he said, " if a scheme elating to Scotland, contrived with the utmost perfection )y an angel, came to be laid before an English minister or Qember, sitting the Parliament, or even just before it, when heir heads are usually full of business more interesting, hey could not so much as afford it attentive consideration." )raigie fled to Glendoick. Forbes complained to Mitchell, rho gave Craigie a hint that the President was " a little out f humour ; " and Craigie, in reply, declared that his holiday lad been spoilt by the way in which the President had ensured him for his want of interest in the tea question.^ But this matter was soon forgotten in the midst of the 1 CuUoden Papers, No. 235 ; Tweeddale to Ctaigie, 14th July and 18th Aug. 7iS ; Mitchell to Craigie, l.st Oct. 1743, Glendoick MSS. ; Forbe,s to Mitchell, Bth Aug. 1743, Mitchell MSS. British Museum ; Burton, Lives of Lovat and orbes, 363-366. 12 THE LORD ADVOCATES OF SCOTLAND. [l?«. toils and anxieties of the Rebellion. During the whole of thf j year 1744 there were constant rumours of secret movements against the Government. The agents of the Pretender were known to be at work; ajid it was reported that another attempt was to be made against the reigning family. In the spring of 1745, the battle of Fontenoy, followed by the surrender of Ghent and the fall of Ostend, raised the hop^;! of the Jacobite party ; and the uneasy feeling which had for ' some time pervaded ofl&cial circles was increased in the course of the summer. The Lord Advocate's hands were full. There were in Scotland many persons against whom reasonable suspicioriB were entertained. The Lord President was opposed to severe measures. He had hitherto been consulted on ajl matters relating to the government of Scotland ; but, at this crisis, Tweeddale suggested to the Lord Advocate that, in some cases, it might be advisable to act without taking the opinion of Forbes. " I know," he said, " that apprehending persons upon suspicions which afterwards may not happen to be verified will occasion clamour. But there is no helf for that. Treasonable practices hardly ever could be dis- covered without something of that nature ; . . . but I know very well you have fortitude enough to do your duty, and serve your King and country, by despising any clamour that may be raised upon you for that account."^ But, although the Government was fully aware that treasonable plots were being hatched in Scotland, the idea that an invasion was at hand was rejected as utterly incredible. It was thought unnecessary even to prepare the troops for active service. The horses of the dragoons, those men who afterwards covered themselves with such disgrace,, were left out at grass ; no immediate danger was appre- hended ; and only a week before the young Pretender landed 1 Tweeddale to Craigie, 26th June 1745, Glendoiok MSS. ,1745.] IGNOKANCE OE THE GOVERNMENT. 13 |in Scotland, the Secretary of State for Scotland wrote to the Lord Advocate saying there was no reason to alarm the country. Charles Stuart had sailed from France on the 22d of June ; but it was not till the end of July that Tweeddale sent to Craigie copies of letters which Government had received from abroad, containing definite information that the Pretender was actually on his way to Scotland. On the 2d of August, Forbes wrote to Pelham and told him it ,was rumoured that Charles Edward was on his way to Scotland ; and, at the same time, the President announced that, lest the rumour should turn out to be true, he was about to start sooner than usual for CuUoden. A week before, on the 23d of July, the Pretender had landed on the island of Eriska. Put, in the summer of 1745, the people who walked the streets of Edinburgh knew little about that mysterious region of moorland and stream, which lay behind the lofty mguntain rampart whose dim outlines they saw rising beyond the windings of the Forth. The second week in August had come before the fact that Charles was in the Highlands was known in Edinburgh. In London the news was, of course, later. " I think it still," Tweeddale wrote to the Lord Advocate, on the 17th of August, "in my own private opinion, very doubtful if the Pretender's son be himself actually landed in Scotland, but rather incline to believe those said to be landed, from on board the frigate, are persons that have been sent by him or the Court of France, with a double view, both to alarm us here, and also previously to feel the pulse and temper of the people." About the end of July the Government, though laughing to scorn the idea that a landing had actually taken place, were aware that an expedition had sailed for Scotland; and orders were sent to Cope, directing him to assemble the troops in proper places, and order the dragoons to take their horses in from grass. He was to consult, before making 14 THE LOED ADVOCATES OF SCOTLAND. [l?«. any movement of importance, with the Lord Advocate, and the Justice-Clerk. A great part of the responsibility of Government noiif fell on Craigie.1 He superintended the provision of supplies for Sir John Cope's army ; he considered the evidence against; suspected persons, and granted warrants to arrest them ; he issued warrants to search houses in Edinburgh for arms; he examined persons who arrived from the north, offering information; he made arrangements with the spies who 1 were employed by Government. One of these spies was James Macgregor Campbell, son of the celebrated Eob Eoy. Campbell, who had taken the name of James Drummond, came to the Lord Advocate's house on the evening of the 1st of August, and offered to act as an informer. He knew the Jacobite agents, and was fully trusted by them. The price which he put on his services was a commission in the army. Craigie told him that he could not promise a commission, but that he would mention his name to the Secretary of State for Scotland. Campbell then said that in June he had seen a letter written by Lovat, who declared his adherence to the Stuarts, but advised caution. He also gave information as to the movements of the Duke of Perth and other Jacobites, and expressed his surprise that Government had not more accurate intelligence. He stipulated for secrecy, as his life would be in danger if there was any suspicion that he was playing a double part. He then left, promising to return in a week. On the 8th he again presented himself; and the news which he brought ^ Family tradition ascribes Jacobite sympathies to Lord Adrocate Craigie, on various grounds, e.g. a number of letters of the year 1745 have been destroyed ; he was a friend and correspondent of Lord George Murray ; and on a school-book belonging to one of his sons was found scribbled, " God save King James and all the family, James the Good and Great, God bless and restore him." But the documents which were destroyed might, perhaps, have compromised, without any good reason, some of his neighbours, who had supported the Stuarts ; lie was, as we shall see, grossly deceived by.Lord George Murray ; and his son was at school with young Lovat. 1745.] PEOGRESS OF THE EEBELLION. 15 was at once sent up to London. A cousin of his own, he said, had heard young Glengarry laughing heartily at the English Government for not knowing where the young Pretender was.^ In the beginning of September the rebels were marching southwards. The unwilling peasants were forced to leave their homes, and follow the Pretender. The chiefs and lairds, who, impelled by various motives, had gathered round Charles, showed no pity. Threats and bribes were used to induce men to leave their families and join the insurgent army. On the 4th of September they entered Perth. Here Charles was joined by Lord George Murray. The important part which Lord George played in the course of the Eebellion is well known ; and it is curious to find that a few days before he joined the rebels he had written to the Lord Advocate in the following terms : " My Lord, I wrote to you this day by the Perth post. I now (as I know it will be acceptable to your Lop. to hear anything of moment) I send you this by express, to let you know that this night about 9 o'clock Glengarry came here to wait upon my Brother (as he had given him assurances he would upon this creeticall occasion), and we aU. go tomorrow morning to Crieff to wait upon the Generall. Your Lop. will have much better intelegence of what passes in the North then I can pretend to give you. What Glengarry tells us is this. That Locheal and Keppoch atacked the two companys of the Eoyall betwixt fort Augustus and fort William, there were four or five private men of the Eegular troups killd, and the rest being 82 taken prisnors. Capitain Scott was slightly wounded in the top of the shoulder. But they have not atempted anything against fort William or fort Augustus, and Glengarry is positive they neither will, nor can, they 1 Craigie to Tweeddale, 1st Aug. 1745, Scot. MSS. Eecord Office ; Memorandum, marked "Copy J. Drummond's Information," Glendoick MSS. 16 THE LORD ADVOCATES OF SCOTLAND. [l745. have no Cannon but small things of a pound bore. The ship that brought the Invaders is gone, and they are not above twelve or sixteen that landed with the young Pretender, and no body belonging to this county except my eldest Brother. Locheal's people, Keppoch's, Clanranalds, Appens, and Glencos are the people that are joining and gathering to a head. Glengarry says he cannot answer for it but some of his people will be with them, but is positive many of them will not, for he had assurances from them to the contrary, but thought it best to retiyre out of the country himself, as he had reason to believe there would be atempts made upon him, and as he had given my Brother AthoU assurances of his comming to him if anything of this nature should happen. It is very leat, so shall end with my best wish^ that these troubles will soon be over. I . . my Lord, your Lops . . st obedient humble servant, George Murray. Ex- cuse bad paper pen ink and w " ^ In the meantime there was great uncertainty in Edin- burgh, not only as to the movements of the Pretender, but also as to the position of Sir John Cope. His despatches generally reached the Lord Advocate in the shape of small pieces of paper, rolled up tightly so as to escape detection if the messengers who carried them were intercepted. All those which came into Craigie's hands he sent iip to the Marquis of Tweeddale. But many of Cope's letters fell into the hands of the rebels; and the doubt as to what was passing in the north was, therefore, great. The citizens were in a state of panic ; and the Lord Advocate could not walk along the High Street without being stopped, and asked why the people were not allowed to arm for the defence of the town. The question of arming a regiment had been raised 1 Letter dated, "Dnnkeld, 20th August 1745," Glendoick MSS. The Lord Advocate soon heard that " poor Lord George Murray" had joined the Pretender. Craigie to Tweeddale, 7th Sept. 1745, Soot. MSS. Eecord Office. 1^45.] THE VOLUNTEERS. 17 soon after Cope marched to the north ; and the opinion of the law officers and judges was taken on the subject. Their opinion, given on the 28th of August, was that a regiment could not be embodied without his Majesty's warrant, for which the Lord Advocate was requested to apply. Before the royal warrant was received, the news that Perth had been occupied by the rebels reached Edinburgh. A petition was presented to the Lord Provost and Magistrates by a number of the leading citizens, praying for leave to take arms as volunteers.^ A meeting of the Town Council was called to consider the petition ; and, while it was being held, some of the councillors went and consulted the Lord Advocate and Solicitor-General, who signed the following opinion : " As it is notour that an actual Eebellion is in this country in favour of the Pretender, and that the rebels are assembled at Perth, we are humbly of opinion that it is lawful for the Magistrates to authorise the subscribers and the other well affected inhabitants to take up arms for defence of the city and support of the Government." Armed with this opinion the councillors who had been in consul- tation with the Lord Advocate returned to the Council Chamber. But the Provost raised a difficulty. " It is treason," he said, "to take up arms without the King's leave. The Crown lawyers have avoided meeting this objection, which can only be done by giving it as their opinion that it is not treason." On this a messenger was sent to the Advocate and Solicitor, who returned an answer to the effect that it was not treasonable for the magistrates to grant the prayer of the petition, and allow a body of men to be armed. Before many volunteers had been enrolled the royal warrant arrived. It authorised the magistrates of Edinburgh to raise one thousand men, and instructed Cope, 1 Home, History of the Eebellion, 69 ; " Abstract of Intelligeuoe relating to the behaviour of Archibald Stewart, Esqre.," Glendoick MSS. VOL. II. B 18 THE LORD ADVOCATES OF SCOTLAND. [l''''5- or in his absence General Guest, who was in command of the Castle, to furnish them with arms. While those who were loyal among the citizens of Edinburgh were arming for the defeijce of the town, the rebels left Perth. In London Ministers were still full of hope. " I received," Tweeddale writes to the Lord Advocate-, "yours of the 12 current by express, in which you acquaint me that the day before the rebels had left Perth, and marched westward ; but, as I have had no express from you since, I flatter myself they have been able to make no great progress." The Under-Secretary was equally confident. " I am in hopes," he writes, " that the Highlanders are now retreating to their own mountains, as it is now 48 hours and upwards since we heard of their motion from Perth." On the very day on which these letters were written Charles entered the Palace of Holyrood. The rebel army had rapidly approached the capital of Scotland. On the evening of Sunday, the 1 5th of September, Brigadier Powkes reached Edinburgh, and took command of the dragoons, who lay encamped to the west of the city. On the following day a small force, despatched by Charles for the purpose of seeing how the land lay, ap- proached the dragoons, who were drawn up at Coltbridge. They at once fled in disorder. An officer hurried to the Lord Advocate, and informed him of what had taken place. It had been arranged, at a councU of war held on the previous day, that, if the rebels appeared, some of the dragoons should march into the town. The Advocate, accompanied by the Solicitor-General, Dundas, went at once to the Castle, and saw General Guest, who gave an order for one hundred dragoons to enter the town. Craigie and Dundas, leaving the Castle, took horse, and rode after the dragoons, whom they overtook near Musselburgh, a village about six miles to the east of Edinburgh. The Lord 1745.] FLIGHT OF THE DEAGOONS. 1 9 Advocate asked Brigadier Fowkes why he was leaving Edinburgh. He replied that " he did not think it safe to risk an engagement with the rebels, especially as he had so near a prospect of being joined by Sir John Cope and the Dutch; so he did not think proper to risk the hundred dragoons in Edinburgh after some suspicions he had of the magistrates' conduct." ^ At this moment a messenger from Dunbar galloped up with the news of Sir John Cope's arrival on the coast. Eager to join Cope, Fowkes and his dragoons continued their march to the east. The Lord Advocate had now to choose between going on with the troops or return- ing to Edinburgh. He decided to go on; and Dundas accompanied him.^ In the evening the troops halted in a field near Prestongrange, and prepared to bivouac.^ At a short distance was Huntington, the country house of Thomas Hay, at that time Keeper of the Signet, and afterwards one of the judges of the Court of Session. There Craigie and Dundas spent the night, In the meantime all was confusion in Edinburgh. The dragoons, in their flight from Coltbridge, had passed along the fields to the north of the city, on which the New Town was afterwards built, and had been seen by great numbers of people.* All hope of resisting the rebels was at once aban- doned by the majority of the townspeople, who surrounded the Lord Provost, and implored him not to sacrifice their lives by a useless resistance. A meeting of magistrates and townsmen assembled in the Goldsmiths' Hall. Some of the Town Councillors proposed that a messenger be despatched to request the return of at least a portion of the dragoons ; but the Provost declared that he could not admit them without 1 Craigie to Tweeddale, 15tli Sept. 1745, Scot. MSS. Record Office. '^ "1 thought it more for his Majesty's service, that I should endeavour to attend his Majesty's forces, than either be cooped up in the Castle, or run the chance of falling into the rebels' hands." Ibid. 3 Home, History of the Rebellion, 102. ^ Ibid. 88. 20 THE LORD ADVOCATES OF SCOTLAND. [^''^S.i first consulting the Lord Advocate and other officers of the Crown. A messenger was, therefore, sent to request the presence of the Advocate, Justice- Clerk, and Solicitor- General. They could not be found. Craigie and Dundas were then following the retreating dragoons in the direction of Musselburgh. The Justice-Clerk, returning a short time before from his country house at Brunstane, had been met by a crowd of people, who shouted to him that the rebels were entering the city from the west ; and, on hearing this, he had ridden back to Brunstane.^ "When the messenger returned to the Goldsmiths' Hall, and informed the meeting that the officers of the Crown had left the city, the turmoil and panic increased. While some were loudly proclaiming the necessity of surrender, and others were maintaining the duty of resistance, the Pretender's message, demanding admittance, arrived. On this all thought of seriously defending the city was given up. The afternoon and evening were spent in negotiations; but, early on the following morning, the city was entered by a large body of Highlanders.^ When the Lord Advocate and Dundas went to bed at Huntington on the evening of the 16th, they had just left the dragoons encamped for the night in a field in the neighbourhood. When morning broke they were all gone. " A dragoon," says Home, " seeking forage for his horse, between 10 and 11 o'clock, fell into an old coal-pit, which was full of water, and made such a noise that the dragoons thought the Highlanders had got amongst them, and, mounting their horses, made the best of their way to Dunbar." Craigie and Dundas appear to have gone to Haddington, on finding that the troops had run away, there to await the arrival of Sir John Cope. 1 Home, History of the Rebellion, 88. 2 At 5 A.M. on the 17th of September. 1745.] PRESTONPANS. 21 The royal army left Dunbar on the 19th, bivouacked that night on a field to the west of Haddington, and on the 20th reached Prestonpans, near which they awaited the approach of the rebels, who advanced from the south- west. The whole of that day was spent by the rival forces in marching and countermarching. Craigie accom- panied the General and his staff throughout the day and till late in the evening, when the watch-fires were lighted and the sentinels were posted along the margin of the morass which lay between the armies. Then, as night began to fall, dark and cold, he and Dundas rode off to Huntington. The Government in London was not seriously alarmed until the news came that the rebel army was close to Edin- burgh, and that the dragoons had fled. The Ministers then saw that they had to deal with a grave crisis ; and, in answer- ing the Lord Advocate's letter, sent from Huntington on the night of the 1 6th, Mitchell only ventured to express a wish that Cope might reach Edinburgh in time to save the town and hang the Provost. Each day the news from Scotland was eagerly expected. At last, about midnight on the 24th of Septeinber, a messenger reached Whitehall with a despatch from the Lord Advocate. It contained the first news of the defeat of the royal army at Prestonpans. "My Lord," Craigie wrote, " I am sorry to "Write to your Lop. this melancholy news, that this morning about Day Break Sir Jo" Cope and his army were attackt by the Eebells, and Intirely Defeat. The SoUicitor and I left them last night Drawn up in the field be West Seaton, and the EebeUs about a Mile to the Westward. Wee heard the fireing this morning, and People that were on the field Give us account that our army is Wholly Dispersed, and a Gentleman met Brigadeer Eoulks in his way to Berwick w*"* out any Troops. Mr. SoUicitor and I are so far in our 22 THE LORD ADVOCATES OF SCOTLAND. [l745. way to Berwick, where wee will wait your Lops farther Directions, If the Eebells allow us. The Dutch are not yet arrived." ^ Such Avas the first account of the battle of Prestonpans which reached London. The unexpected news was received with consternation. Englishmen were deeply chagrined to hear that an undisciplined horde of mountaineers had put to flight King George's soldiers ; and loyal Scotsmen felt as if their country was disgraced by the surrender of the capital. " I can neither sleep, eat, nor be easy," said Mitchell, in a letter to Craigie, " tiU this stain is wiped off the nation. I am ashamed to own myself what I am, for I can neither deny nor contradict the bold assertions of universal perfidy till the guilt is laid on those who ought to bear it." Craigie had sent the bad news from Haddington on the day of the battle. Two days later he and Dundas reached Berwick. Cope was already there, with Brigadier Fowkes, some officers, and about four hundred dragoons. General Lord Mark Kerr had been in command when the fugitives from Prestonpans arrived. "Good God!" he exclaimed, "I have seen some battles, heard of many, but never of the first news of defeat being brougbt by the general officers before!" He and Cope quarrelled ; and when the Lord Advocate arrived he found a hot dispute going as to which of them was in command. The quarrel lasted for some time ; but Lord Mark settled it by leaving for England. Everything was in confusion. The officers blamed the privates, especially the dragoons, for the defeat; and Craigie's opinion, from what he heard, was that the disaster had been caused by the cowardice of the royal troops rather than by the numbers or bravery of the Highlanders. It would be dangerous, he 1 Craigie to Tweeddale, Haddington, Saturday, 21st Sept. 1715, Scot. MSS. Record Office. 1746.] CEAIGIE KESIGNS OFJ-ICE. 23 told the Government, to engage the rebels a second time without a visible superiority in numbers.^ Soon after Lord Mark Kerr had left for London, despatches addressed to him reached Berwick. The Lord Advocate proposed that Cope, as commander-in-chief, should open them, and carry out the instructions they contained. Cope, always under the influence of red tape, declined to do so. Craigie then consulted the Earl of Loudoun and Briga- dier Towkes, and the despatches were opened. They gave orders that General Guest should be directed to inform the magistrates of Edinburgh that if provisions were not duly supplied to the Castle, he would harass the town by all possible means. Copies of these instructions were made; and the Lord Advocate was intrusted with the task of finding means to transmit them to General Guest. This was Craigie's last service in Scotland at the time of the Eebellion. His letters had been of service to the Government. Lord Stair's opinion was " that all the letters from the Advocate were wrote like a man of sense, of courage, and one versed in State business."^ Lord Tweeddale requested him to come to London in time to be present at the opening of Parliament ; and, leaving Dundas at Berwick, he started for the south. He reached London before the middle of October, and remained there till the Eebellion was at an end. But before the victory at CuUoden, he had ceased to be Lord Advocate. Early in February 1746, Pelham's determination that Pitt should be a member of the Government produced a Ministerial crisis. On the King's refusal to receive Pitt, Pelham, along with those members of Government who supported him, resigned office. Granville and Tweeddale attempted to form a Ministry. They failed; and Pelham 1 Craigie to Tweeddale, 23d Sept. 1745, Scot. MSS. Eecord Office. 2 Marchmont Papers, i. 120. 24 THE LORD ADVOCATES OF SCOTXiAND. [l746-l!'4?. was again in power, Granville and Tweeddale being excluded from the reconstituted Ministry. Craigie shared the fortunes of Tweeddale, and was succeeded as Lord Advocate by William Grant of Prestongrange. No Secretary of State for Scotland was appointed in place of the Marquis of Tweeddale. The office, ever since it was revived, had been a constant source of weakness to Govern- ment. In addition to the well-known matters of dispute between the rival sections of the Cabinet, the Scottish Secretaryship had led to the formation of two distinct parties, one of which supported Tweeddale, and the other of which, including Pelham among its members, endeavoured to advance the interests of Argyll. When times were quiet in Scotland little harm was done. But when the Eebellion broke out, and grave questions had to be settled, the existence of the Secretaryship was found to hamper the Government. The office was therefore abolished ; and the affairs of Scotland were again managed on the plan laid down by Walpole in 1725. When Craigie went out of office there was a vacancy on the bench.^ In writing to his brother. Baron Craigie, on the 22d of February 1746, he says, " I believe I shall accept of the vacant gown in the Session." The judgeship was, how- ever, given to Patrick Boyle of Shewalton; and Craigie continued to practise at the bar. He retained his seat in the House of Commons till Parliament was dissolved in June 1747. Lord President Forbes died on the 10th of December 1747. When the King was told of his illness, he said, "He would be a loss, for on the whole he was a good man, though he had faults," and then began to speak about his successor. Craigie was named among others. There was much difficulty about choosing a new President. Dundas of Arniston, so 1 James Elphinston, Lord Coupar, had died on 5tli January 1746. 1!'48.] CRAIGIE's PEIVATE PEACTICE. 25 long the rival of Forbes at the bar and in politics, had been made a judge in 1737.^ Erskine of Tinwald, who had suc- ceeded Torbes as Advocate, was also on the bench.^ Craigie, as we have just seen, had been succeeded as Lord Advocate by Grant of Prestongrange, who was Lord Advocate when Porbes died. These four names were all mentioned. Craigie's claims to the vacant chair were fully acknowledged; but it was known that Arniston would resign his judgeship if either Craigie or Grant was appointed. The Government felt that they must choose between Dundas and Erskine; but there were serious difficulties in the way. Argyll was against Dundas. Chesterfield expressed the feeling of many Scotsmen when he said that matters could not be arranged till the King resolved to be King of Scotland, which was what the Duke of Argyll insisted on being. Marchmont, on the other hand, told the King that Erskine had been " a notorious Jacobite." Dundas had himself written to London, before Forbes was dead, saying that the President's life was despaired of, and that he would consider it an insult if he did not succeed him. It was now understood that if he was not appointed he would retire from the bench, and do all in his power to embarrass the Government. For nine months after the death of Forbes the office of Lord President remained vacant ; but in September 1748 Dundas received the appointment. Tytler says that Craigie's mind was " peculiarly turned to the unfolding of the systematic intricacies of the feudal doctrines." * It appears from his papers that a great part of his practice was in cases raising questions of feudal law. Among his clients were the Duke of Buccleuch and Lord Dalkeith, the Duke of Montrose, the Earl of Eothes, the Marquis of Tweeddale, and Lord Kinnoul. To Lord Kinnoul and his son. Lord Dupplin, Craigie 1 Supra, vol. i. p. 318. 2 Supra, p. 3. ' Memoirs of Kames, i. 41. 26 THE LORD ADVOCATES OF SCOTLAND. [l7<8. stood in the position of both legal adviser and private friend. Their estates were managed by trustees; and the father and son, who usually lived in London, appear to have been almost at their wits' end for money. Most of their letters to Craigie are filled with pitiable entreaties that he will use his influence to raise loans for their use. Some of them are, however, of a more amusing character; and the following may be quoted, as it gives an idea of what a journey from Edinburgh to London sometimes was in the middle of last century. In October 1748 Lord Kinnoul writes to Craigie : " Your nephew would give you an account of my progress as far as Mr. Thomas Hays at Huntington. I set out from thence on Saturday Sept. 24, and arrived the Tuesday thereafter at Whitehaven, by way of Peebles, Moffat, and Carlisle, after travelling four long days Journey, through wild hills, very very long miles and bad weather. I stay'd two days with Sir James Lowther and set out from Whitehaven on Friday Sept. 30. I travelled thro' as bad hills for two days and a half more till I came to Lancaster — but at last by way of Preston, Warrington, New- castle, Litchfield, Coventry, etc., I arrived Safe and Sound (all that was left of me) at Whitehall on Sunday last to dinner. The brutes performed wonders, and I am no less surprised at myself for holding out so stoutly trotting most days 40 miles a day, my old bones often wanted greasing, but I thank God I brought them safe here at last."^ In 1748 a marriage was arranged between the Marquis of Tweeddale and Lady Frances Carteret, daughter of the Earl of Granville. Craigie was requested to prepare the marriage contract ; and an interesting correspondence is preserved, in which Lord Granville and his future son-in- law express themselves as under the greatest obligations to him for his services. The wedding took place in May 1 Gleudoiok MSS. • 1754.] APPOINTED LOED PRESIDENT. 27 1748. In October 1753 Craigie received a hurried note from Lord Tweeddale. " My wife," he wrote, " had a letter from the Earl of Granville, dated the 14th instant, wherin is the following paragraph: 'I have been in the country ever since the e**" of Sept"^, excepting one call which I had from London, where I went the 24*'' and returned the 29*^; when I had from good hands that our friend Mr. Craigie would certainly be appointed President of the Session, if he pleased. I suppose by this time it is actually done,' etc. etc. I need not repeat the rest of the paragraph, which is much in your praise, as I know you are not ignorant of my Lord Granville's regard for you." The vacancy was caused by the death of Lord President Dundas, which had taken place in the previous August. Lord Granville's information Avas correct. Craigie was appointed President. He took his seat on the 2d of February 1754; and presided over the Court of Session till his death on the 10th of March 1760. Craigie's success in life was entirely the result of his habits of hard work. There was nothing brilliant about him ; and, apart from the great events which took place while he was Lord Advocate, his career is chiefly remark- able as the most conspicuous instance, at the bar of Scotland, of a high position in the service of the State being attained by constant plodding, and the judicious use of moderate talents. 28 THE LOED ADVOCATES OF SCOTLAND. [Hii, CHAPTER XIII. LEGISLATION. During the thirty years which followed the close of the Eebellion four Lord Advocates held office. These were William Grant of Prestongrange, Eobert Dundas of Arnis- ton, son of Lord President Dundas, Sir Thomas Miller of Glenlee, and Sir James Montgomery of Stanhope. It was not their fortune to serve the Crown at a time so exciting as the first half of the eighteenth century. Their lives were, therefore, uneventful. But it was a period of great importance in the history of Scotland. The political problem of the day was to find what steps must be taken in order that Scotland should no longer be, as it had hitherto been, a source of weakness and danger to the empire. That problem was solved during the period which followed the Eebellion. When Craigie resigned, in the spring of 1746, the government of Scotland was a heavy burden. The Stuarts had partisans in every class of the people. The Union was still detested. It was almost impossible to vouch for the loyalty of any Scotsman. Over wide dis- tricts of the country the King's judges had practically no jurisdiction, and the law had no authority. Thirty years after, when Lord Advocate Montgomery was succeeded by Henry Dundas, all was changed. The hopes of the Jacobites were dead. The Union was quietly acquiesced in. High- landers were fighting the battles of England with more than 1742.] GKANT OF PEESTONGEANGE. 29 Englisli valour. Law and order were spreading, even to the most remote parts of the country. The people were loyal and peaceable. "William Grant of Prestongrange, second son of Sir Francis Grant of CuUen, was called to the bar in February 1722. In 1731 he was appointed, by the General Assembly, Procurator, or legal adviser, to the Church of Scotland, and Principal Clerk to the General Assembly.^ In 1737 he succeeded Charles Erskine of Tinwald as Solicitor-General. After receiving this appointment he retained his places of Procurator to the Church and Clerk to the Assembly, and obtained leave to appoint a substitute if he should be "necessarily absent." It was, however, provided "that in case Mr. Grant should, at any time, receive or accept of any office which the General Assembly should consider incompatible with the present office, that then and in that case the Act should not be construed to import that he should then act by deputy."^ In 1742, when Lord Advocate Erskine resigned. Grant, who had been Solicitor-General for six years, seems to have thought that he was hardly used in not receiving the vacant office, which was bestowed on Craigie. To the new Lord Advocate, however, he bore no ill-will. "I perceive," he writes to Craigie, " that one argument I used with you lately, to be my assistant last term in Exchequer, has been somewhat prophetick, beyond what I believe either of us then appre- hended. I cannot help regretting the fortune of the late Lord Advocate, who is a humane man, whom I always found it easy and agreeable to serve with ; and it is truly a mortifica- tion to any of our profession, who is in the King's service, to 1 Acts of AssemWy, IStli May 1731 ; Brunton and Haig, 518. 2 Acts of Assembly, 2ftli May 1737. In the following year, in consequence of applications for the ofiSces of Procurator and Clerk, the Assembly passed an Act -which practically declared that these offices were not inconsistent with that of Solicitor-General. Acts of Assembly, 13th May 1738. 30 THE LORD ADVOCATES OF SCOTLAND. [l746. see the casualties to whicli it is obnoxious, and that one may be taken from his private business, and then after a good many years' service, be removed from his public station, and left to gather up the other again the best he can. I am also not insensible that if he was obnoxious more than I have had occasion to be, it would have been a natural step of preferment for me to have succeeded him ; and when T have said this in justice to him, and to myself, I do, with equal truth and sincerity, offer my congratulations to you upon your advancement, of which I most heartily wish you Four years later, when Craigie retired. Grant was appointed Lord Advocate, on the 26th of February 1746. A few days before he received his commission he had obtained a seat in the House of Commons as member for the Elgin burghs.^ When the General Assembly of the Church met in May, Grant, who was in London, sent a Depute to perform the duties of Clerk in his absence. But the Assembly held that though the Solicitor-General might act as Procurator and Clerk, it was different with the Lord Advocate. Grant's offices were, therefore, declared vacant.^ During the Eebellion Grant had written a pamphlet, in which he discussed the pretensions of Charles Stuart. He had now, as Lord Advocate, to engage in the more practical work of framing those Acts of Parhament by which Government hoped to lessen the danger of another rebellion. In a letter written a few days after the battle of Cul- loden, the Duke of Cumberland said, " If we had destroyed every man of them, such is the soil, that rebellion would 1 Grant to Craigie, IStli March 1742, Glendoick MSS. ■' Pari. Papers, 1878, Ixii. ii. 96. 3 Acts of Assembly, 20tli May 1746. The offices of Procurator for the Church and Clerk of Assembly were at this time disjoined, and given to different persons. 1746.] ENGLISH FEELING AGAINST SCOTLAND. 31 sprout out again, if a new system of government is not found out for this country."^ The new system of govern- ment which Cumberland desired was a system of stern repression. The vindictive hatred of many Englishmen to Ireland, in our own day, may enable us to understand how Englishmen felt towards Scotland at the close of the last rebellion. England, when alarmed by resistance to her authority, becomes revengeful. No allowance is made for the ignorance of those who have offended, nor for the regret of loyal subjects who feel themselves powerless to restrain their fellow-countrymen, l^o braver soldier than Cumber- land ever served in the British army ; but he permitted, if he did not encourage, his troops to commit those deeds of revengeful cruelty which are remembered when his deeds of valour are forgotten. No punishment would have been too severe for the rebel leader who shed so much blood in attempting to regain for his family the throne which it had lost. But he had broken his vow to succeed or perish ; and his followers were left to the vengeance of England. At the time when the Eebellion was finally extinguished Parliament had already been sitting for six months. Never- theless, before the session ended, several Acts were passed for the purpose of bringing the disturbed districts of Scotland into subjection. Within a week from the day on which the news of CuUoden reached Westminster, leave was given, in the House of Commons, to bring in a bill by which any suspected person, whose estate or dwelling-place was in Scotland, could be compelled to find bail for his good behaviour. Other measures followed. Many of the Episco- pal clergymen had played a disloyal part ; and an Act was passed which forbade all Episcopalian clergymen to conduct service without taking the Oath of Allegiance and praying 1 Coxe, Memoirs of Pelham, i. 301, 302. 32 THE LORD ADVOCATES OF SCOTLAND. [1746. for the King by name.^ By another Statute an effort was made to crash the warlike spirit of the Highlanders. They were forbidden to possess arms ; and the penalties for dis- obedience were, for the first offence a heavy fine, to be sent to the Colonies on army service, or six months' imprisonment; and for the second offence, seven years' transportation.^ Nor was the Disarming Act allowed to remain a dead letter. It was firmly administered. House after house was searched, and many weapons of war were taken away. This Act not only disarmed the Highlanders. It also provided that no man or boy in Scotland, unless serving in the army, should, on any pretext whatever, wear a kilt or any part of the Highland dress. Tartan plaids or coats were also forbidden. The punishment for wearing tartan was six months' imprisonment for the first offence, and seven years' transportation for the second. It was on the Twelfth of August that the Act for " restraining the use of the Highland dress " received the royal assent.^ The law against the High- land dress was vigorously enforced, and considered of great importance. The troops were ordered " to seize all offenders, and carry them, in their dress, to the civil magistrate, who is solely authorised to inflict the punishment the law directs." If the magistrates neglected their duty the Lord Advocate was to be at once informed. The officers were to report, from time to time, what obedience was paid to the Act, — "for they must and shall obey it."* These measures were passed without difficulty ; for they were of a kind with which Parliament was familiar. But the Government contemplated legislation of another kind, I 19 Geo. II. cap, 38. a 19 Geo. Ii. cap. 39. 3 Commons' Journals, 12tli Aug. 1746. " Heads of the Eepresentatiou given by General Bland touching the Civil Administration of Scotland. Chalmers MSS. Advocates' Library, 35. 6. 4, i. 687. l''*6-] ■ THE HERITABLE JUEISDICTIONS. 33 the object of which was to remove some of the causes which had led to the discontent and disloyalty of the Highlands. The Eebellion had convinced English statesmen that something must be. done to strengthen the influence of the King's government in Scotland. The Heritable Jurisdic- tions had long been a source of weakness to the Executive ; and it was now evident that the power of administering justice must no longer be handed down as an heirloom from father to son. The evils of the system were much felt soon after the Eebellion, when it was actually proposed that officers of the army should be present at the examinations of suspected persons, in order to compel the sheriffs to do their duty. Before Parliament rose in August 1746 the Lord Chancellor moved a series of resolutions, which were meant to pave the way for the abolition of the Heritable Jurisdic- tions, and proposed that the judges of the Court of Session should be requested to prepare the draft of a bill for removing the inconveniences which arose from the various kinds of Heritable Jurisdictions, and for making more effectual pro- vision for the regular administration of justice in Scotland. The draft was to be laid before the House of Lords at the beginning of next session. The judges were, at the same time, to report generally on the Heritable Jurisdictions, who possessed them, and by what means they had been created. Doubts were raised as to the competency and advantage of remitting the subject to the judges ; but it was explained that the remit was made, not to the Court, but to the judges as individuals. The Lord Chancellor's resolutions were unanimously adopted.^ The Duke of Argyll, who had a great deal at stake, " sat by in a corner," it is said, '' and complained of the headache." ^ 1 Lor4s' Journals, 5th Aug. 1746. ' Dr. Birch to the Hon. Philip Yorke, 9th Aug. 1746 ; Pari. Hist. xiii. 1416. VOL. IL C 34 THE LORD ADVOCATES OF SCOTLAND. [i-'Ht. Parliament was prorogued on the 12th of August, and reassembled on the 18th of November. But the subject of the Heritable Jurisdictions was not at once brought before the House of Lords. Ministers were aware that the owners of the Jurisdictions would resist all reform, and that a measure so sweeping as the abolition of a system which had existed for generations could not be carried without a struggle, which might perhaps be desperate and prolonged. They had, therefore, sought the assistance of the judges. The judges, however, had not prepared the draft of a biU ; but, after waiting till January, Government laid on the table of the House of Lords two letters from Lord President Forbes, in which he stated that the bill had not been prepared, owing to the difficulty which had been found in discovering the precise number or extent of the various Heritable Jurisdic- tions. The judges, it appeared, were of opinion that, so far as possible, these Jurisdictions should be abolished; and they made a number of suggestions for improving the ad- ministration of justice in Scotland. Circuit Courts, they said, •should be held twice a year at Glasgow, Stirling, Perth, Aberdeen, and Inverness ; and the cumbrous system by which all parole evidence was written out and embodied in the records of Court ought to be abolished. Although the judges had not prepared a bill. Ministers were determined to deal with the question at once, while the memory of the EebeUion was still fresh. Accordingly, on the 1 7th of February, Lord Chancellor Hardwicke brought in a bill for the abolition of the Heritable Jurisdictions in Scotland. He made a long and eloquent speech.^ The Eebellion, he said, was not his reason for proposing this great measure of reform, although it was the occasion on which it was introduced. His reason was neither the dread of a general spirit of disaffection in Scotland, nor the belief ^ Pari. Hist. xiv. 9-25. 1"47.] THE HERITABLE JUKISDICTIONS BILL. 35 that the present owners of the Jurisdictions were unfit to he intrusted with such power. " My Lords," he said, " my true reasons are drawn from known and allowed maxims of policy. I think the parcelling out the power of jurisdiction, originally lodged in the Crown, in this manner, was a wrong and dangerous model of government; I say, of government in general, because I look upon the administration of justice as the principal and essential part of all government. The people know and judge of it by little else. The effects of this are felt every day by the meanest, in the business and affairs of common life. Statesmen indeed have their atten-^ tion called off to more extensive political views : they look abroad into foreign countries, and consider your remote interests and connections with other nations. But of what utility are these views, great as they are, unless they are referred back to your domestic peace and good order ? The chief office of government is to secure to us the regular course of law and justice. When the King, therefore, grants away jurisdiction, he parts with so much of his government. It is giving away so many jewels of his crown." The measure, which was thus introduced by the Lord Chancellor, abolished all the heritable jurisdictions of justi- ciary, and restored the jurisdiction to the King's Courts. It abolished the hereditary sheriffships, and declared grants of them for life to be illegal. Fines imposed on criminals, which had hitherto been a source of revenue to the sheriffs, were now vested in the Crown. The bill was read a first time, but was not proceeded with in the House of Lords. A question of privilege was raised. The Jurisdictions which were to be abolished had been exercised from time imme- morial. Many of them were valuable possessions. Some had been bought and sold for large sums of money. All of them were a source of profit to their possessors. With this fact in view, the Lord Chancellor had inserted in 36 THE LORD ADVOCATES OF SCOTLAND. [l747. his bill a compensation clause, under which the Court of Session was to ascertain the value of the Jurisdictions, and report it to the King in Council. This gave rise to doubts whether it was not a money bill; and the Government thought it wiser to proceed in the Commons first. "When leave was given in the House of Commons to bring in the bill, the Attorney-General and the Solicitor-General for England were directed to prepare it ; but, on a subsequent day, the Lord Advocate was appointed to assist them.^ The new measure was almost the same as that which had been explained by the Chancellor in the House of Lords. A long debate took place on the second reading. The bill was strenuously opposed, chiefly on the ground that it was a violation of the rights of property. The Ministry maintained that it would complete what was begun by the patriots who had abolished the Privy Council of Scotland, and would make the people of that country sharers in the freedom which was enjoyed by the people of England. The Op- position, on the other hand, declared that it had no foundation save in the caprice of Ministers. No interest was safe if the principle of the bill was once admitted. It was not only a breach of the Treaty of Union ; but it would make the property of every man, both in England and Scot- land, insecure. " Some future Minister," it was said, " may fancy, as Turkish Ministers have always done, that incon- veniences have arisen, and may arise, from any subjects having a property in a land estate, and that therefore it is necessary for the public good to compel every man in the king- dom to part with his property in lands for a reasonable price." ^ Lord Advocate Grant spoke in this debate. In the Parliamentary History the only speech which is reported is that of Lyttelton, who supported the measure with dis- tinguished ability. But Horace Walpole mentions Grant's 1 Commons' Journals, 1st April 1747. 2 Parl. Hist. xiv. 34. 174?.] , THE BILL CARRIED. 37 speech in a letter to General Conway. " We have had," he says, " a great and fine day in the House on the second reading of the Bill for taking away the Heritable Jurisdictions in Scotland. Lyttelton made the finest oration possible. The Solicitor-General, the new Advocate, William Grant, and Hume Campbell, particularly the last, spoke extremely well for it, and Oswald against it. The majority was 233 against 102. Pitt was not there. The Duchess of Queensberry had ordered him to have the gout." ^ This debate was on the 14th of April. A month later, after a prolonged struggle in Committee, the bill passed by a majority of eighty-four, and was sent to the Lords. In the Upper House the opposition was continued. Counsel were heard at the bar against the second reading. The Tory peers declared that the bill was an act of spolia- tion ; but the Duke of Argyll supported it, saying that he had always been ready to surrender his own rights of jurisdiction, and that he thought it would be in reality a benefit to Highland landlords if the whole clan system were abolished. The Opposition did not divide the House ; and this great measure, which introduced the most useful reform which had taken place in Scotland since the Union, speedily became law.^ The principle on which the Heritable Jurisdictions Act rested was, that if the possession by the landlords of Scot- land of certain property was hurtful to the highest interests of the State, then it was the duty of Parliament to deprive them of that property. Another Act, founded on the same principle, and also affecting the owners of land, passed during tMs session. It abolished the system of tenure known as wardholding, under which lands were held on ' Walpole to Conway, 16tli April 1747. 3 20 Geo. II. cap. 43 ; Pari. Hist. xiv. 51-57 ; Lords' Journals, f J May 1747 ; Coxe, Memoirs of Pelham, i. 353. 38 THE LOED ADVOCATES OF SCOTLAND. [l7i1. condition of military service rendered to the superior. So long as this system remained the country must always have been, to some extent, ready for armed rebellion. But this was not the only reason for abolishing wardholding. It gave the superior undue influence over his vassal ; for, in cases where the military service could not be rendered, the law allowed the superior to exact various oppressive forms of compensation. The Government determined to sweep the whole system away; and the Lord Advocate, the Attorney-General, and the Solicitor-General for England introduced a bill for the purpose, which passed the Com- mons without opposition. In the other House certain amendments were made, one of which led to a conference between the two Houses, which took place in the Painted Chamber, on the 1 5th of June. But the Lords yielded, and the Act was passed.^ Lands which had been held in ward from the Crown were in future to be held " blench," that is, for the payment of something merely nominal, such as a penny, or a rose. Lands which had been held in ward from a subject were in future to be held for payment of a feu- duty, th-at is, a sum of money, or its equivalent, paid yearly. The session closed on the 17th of June, and ou the following day Parliament was dissolved. Grant again stood for the Elgin burghs, and was elected on the 22d of July. In the meantime the Lord Advocate had been relieved from the trouble of conducting the prosecutions which followed the Eebellion. The same course was taken as in 1716 ; a;nd a number of Scotsmen were tried in England. Some were executed at London, some at York, and some at Penrith. Cromartie, Kilmarnock, and Balmerino were tried in the House of Lords on an indictment presented by the grand jury of Surrey. 1 20 Geo. II. cap. 50. I74r.] LOVAT. PEOVOST STEWAET. 39 Lovat was impeached. The Government had, in the first instance, wished to try him in the north of Scotland, in order that the fate of so great a chieftain might awe the clans, and show them that the law could punish the most powerful of their leaders. This plan was only given up because the Government were told it would be impossible to obtain a conviction. The Duke of Newcastle wrote to the Lord Advocate and the Justice-Clerk, asking them to give their opinion "whether, in the present conjuncture, there is reason to believe that a Bill of Indictment would be found against Lord Lovat by a Grand Jury, to be summoned in the county of Inverness for that purpose, upon producing sufficient evidence to support the charge." ^ The answer of the Advocate and Justice-Clerk showed what the state of the country was. They said that there were barely twenty -four freeholders in the county . of Inverness " well affected to his Majesty," exclusive of peers. Lord President Forbes, and five proprietors who had seats in the House of Commons. The twenty-four " well-affected " free- holders would not, it was thought, go the length of finding a true bill against Lovat. Therefore the Advocate and Justice- Clerk thought " that there is too much ground to doubt whether a Bill of Indictment would be found against Lord Lovat by a Grand Jury to be summoned in the county of Inverness, even upon producing sufficient evidence to sup- port it." In consequence of this opinion the trial and execu- tion of Lovat took place in London. In Edinburgh the fate of Lovat excited far less interest than did the trial of Lord Provost Stewart, whose conduct had been so suspicious when the rebels were approaching the city. He was member for Edinburgh at the time of the Eebellion ; and his trial was described at the time as " the most solemn trial that ever happened in this nation." 1 7th Oct. 1746, Scot. MSS. Record Office. 40 THE LOED ADVOCATES OF SCOTLAND. [174?. Stewart had been arrested in London, and confined in the Tower for three months. He was then admitted to bail, and, after a great deal of preliminary procedure, appeared before the High Court of Justiciary, on the 27th of October 1747, to stand his trial on an indictment, at the instance of the Lord Advocate, charging him with neglect of duty and misbehaviour in the execution of his office as Lord Provost of Edinburgh. Among the first persons examined were Craigie of Glendoick and Eobert Dundas, who had been Lord Advocate and Solicitor-General at the time of the alleged offence. They were followed by a number of other witnesses. Between one and two o'clock, on the morning of the 29th, when the' Court had been sitting continuously since eight o'clock on the morning of the 27th, a period of more than forty hours, several of the jury declared they could hold out no longer without some relief. Surely, they asked, neither the prosecutor nor the prisoner wished to kill them ? In answer to this pathetic appeal, the lord Advocate said he would not oppose the desire of the jury for rest ; and the Court adjourned for eight hours. At eleven o'clock it reassembled; and from that time till between five and six on the morning of Saturday the 31st, the trial went on without a pause ! The jury were then enclosed to con- sider their verdict, which was to be returned on Monday morning, the 2d of November. As soon as the jury had retired, the Lord Advocate, exhausted with his labours, rode off to Prestongrange. In the evening a letter reached him from a- friend, who said that the jury, having taken ten hours to make up their minds, had risen at five o'clock that afternoon ; that, before leaving the jury-room, they had bound themselves, in a penalty of five pounds each, not to reveal their verdict till it was delivered in open Court; but that one of them had whispered, " It is not a verdict which will please the Lord 174?.] CLAIMS UNDER THE JURISDICTIONS ACT. 41 Advocate." On Monday morning the Court met, and the jury returned a unanimous verdict of not guilty. The result of the trial was greeted with enthusiasm by the inhabitants of Edinburgh, who displayed fireworks and drank toasts in honour of the event. There can be little doubt, on an impartial survey of the great mass of evidence which was given on both sides, that Stewart's conduct was not so culpable as it was thought to be by the Government of the day.'- The 11th of November 1747 was the last day on which claims for compensation could be made by persons who had been possessed of Heritable Jurisdictions. On and before that day a large number of claims were lodged. The total sum demanded was, in round numbers, five hundred and eighty-three thousand pounds. The Duke of Argyll headed the list with a claim for twenty-five thousand. The Duke of Gordon claimed twenty-two thousand. The Dukes of Buccleuch and Athole each claimed seventeen thousand. The smallest sum claimed, in a list of nearly one hundred and sixty claimants, was one hundred and sixty-six pounds, which was the value put on the Bailliary of Lovat. Some of these claims were, there is reason to think, almost ficti- tious. Lord Dalkeith, indeed, afterwards confessed to the Duke of Newcastle that both he and his father, the Duke of Buccleuch; would be better without their jurisdictions, which had cost them money. But the chance of obtaining public money could not be resisted. Some of the claims lodged in Court were accompanied by remarks addressed to the judges. " If it were at my option," said one owner of jurisdictions, "I would not have parted with them for a recompence in money, as reckoning them of the greatest consequence to my family, as my predecessors always did." Another says, " These jurisdictions being now taken from the petitioner, 1 State Trials, xviii. 863-1070 ; Scot. MSS. Record Office. 42 THE LORD ADVOCATES OF SCOTLAND. [l74S. I without any consent asked or given upon his part, it remains to make the best of an HI bargain." Others said that, " for the public utility," they cheerfully gave up their hereditary offices. Each of these claims was considered by the Lord Advocate, who decided whether he should oppose it, on behalf of the Crown, and object either to the validity of the claimant's title to the jurisdiction or to the price at which he valued it. He had also to appear in Court as counsel in the public interest. By the 18th of March 1748 all the cases had been heard and decided. The sum which the Court found due to the owners of the abolished jurisdictions was much smaller than what they had claimed. The Duke of Argyll received twenty-one thousand pounds, which was only four thousand less than he had asked. But the Duke of Gordon was only allowed five thousand instead of twenty-two thousand. The compensation given was, in round numbers, one hundred and fifty-two thousand pounds, or about one-third of what had been claimed.^ The office of Sheriff had now to be fiUed up in every county in Scotland. The Government knew that if proper persons were not appointed, the Act might be found to have done harm instead of good. The greatest trouble was, therefore, taken in selecting Sheriffs. Every effort was made to find men who were thoroughly loyal, as it was hoped that the new officials would be of use in spreading a spirit of attach- ment to the Government. The Duke of Newcastle had a list of those advocates who had been recommended for office. The competition for the vacant places was keen. Every 1 The Report of the Court of Session on the claims under the Heritahle Juris- dictions Act was approved hy the House of Commons, and the money was paid.— Commons' Journals, J^th April 1748. In consequence of the additional Circuits which were to he held under the Act, the Lords of Justiciary received an addition of £100 a year to their salaries. The pay of the Depute-Advocates was fixed at £50 for each Circuit. The judges who went on the South and West Circuits were allowed £150 for expenses, and those who went on the North Circuit had £180. 1748.] APPOINTMENT OF NEW SHERIFFS. 43 personage of influence had one or two friends whom he wished to favour ; and the Minister's table was covered with letters of recommendation.^ The patronage was, however, virtually in the hands of the Lord Advocate, who reported to Government what he thought of the various candidates. He went minutely into the qualifications of each individual. The Duke of Newcastle's list bears marks of the close scrutiny to which every one was subjected. Such notes as "Whig," "Zealous Whig," "Attends nonjuring chapels," appear after the various names. It was necessary to be careful, as the Whigs were in a minority at the bar, and every Jacobite who could show the slightest pretensions was encouraged to apply for office.^ A list of advocates, "universally believed to be well affected," was sent up to Government.^ It contained sixty -five names. There were probably, at that time, about two hundred members of Faculty. With much care the Sheriffs were selected. They were fully instructed in what was expected of them; and the system which was thus commenced has proved of the greatest value to Scotland.* 1 Many of these are still in existence. For example : " Lord John Murray, member of Parliament for the county of Perth, begs leave to recommend to your Grace Mr. David Moncreiff, advocate, a gentleman zealously affected to his Majesty's Person and Government, to be appointed Sheriif-Deputy for the shire of Perth." Another runs thus : "We the Underscribers do attest that we have been intimately acquainted, for these several years, with Mr. James Burnett, advocate ; and that we do believe him to be of Eevolution Principles, and very well affected to his Majesty's Person and Government, and iu that and every other respect qualified to be a Sheriff-Depute : Hew Dalrymple, Alex-- Fraser, Eo. Dundas, Henry Home." Soot. MSS. Record Ofiice. 2 Marohmont Papers, i. 241, 242. s Scot. MSS. Record Office, 1747, 1748. 4 The following is a list of the first Sheriffs appointed under the present system :— (1.) With £250 a year of salary : Argyll and Bute— A.. Campbell of Stonefield ; Inverness— DmiA Scrymgeor ; Pertt— James' Br.skine (son of Lord Tinwald) ; and Ross and' C'rmnertie—}ingh. Rose of Geddes. (2.) With £200 a year : Aberdeen— TUtviA Dalrymple (son of Lord Drummore) ; Ayr— William Duff of Crombie ; Caithness and Sutherland— James Brodie of Spynie ; Dumfries— William Kirkpatrick (one of the Principal Clerks of Court); Edinburgh — Charles Maitland of Pitrichie; Fife and Kinross — J a,mes Leslie (brother of Lord Rothes) ; Lanark— 'WiWia.m Cross ; Orkney and Shetland— Sit Andrew Mitchell of Westshore. (3.) With £150 a year: £«»/— Robert Pringle ; Berwick— Geovge Ker of Westnisbet ; Bumbarton—J ohn Campbell of Sucooth ; 44 THE LORD ADVOCATES OF SCOTLAND. [l748. In March 1748 there was a vacancy on the bench. In December of the previous year Lord President Forbes had died. Even before his death the important question of his successor had been discussed at Whitehall. The claims of Charles Erskihe, Dundas of Arniston, Craigie, and Grant had been considered ; and Forbes had scarcely breathed his last when Erskine and Dundas appeared openly as rivals for his gown. Both had influential friends; and Chesterfield pro- posed to please all parties by appointing Erskine Lord President, and requesting Grant to resign his place of Lord Advocate in favour of the younger Dundas, and go on the bench. This arrangement, however, was given up ; and the winter passed without the appointment of a President. At the time of the President's death, Grant would have resented being compelled to give up his office and take an ordinary judgeship. But his health was now bad ; and his position as Lord Advocate was one of great difficulty. No one could tell who was responsible for the management of Scottish affairs. Ever since the office of Secretary of State for Scotland was abolished it had been uncertain who ought to take charge of the business which had been in the hands of the Marquis of Tweeddale. The Lord Advocate was overworked; and this state of things continued for some time.^ Grant, therefore, was ready to go on the bench. He Elgin and Nairn — John Grant (son of Lord Elcliies) ; Forfar — 6. Brown of Colston ; Haddington — James Hamilton (brother of Lord Belhaven) ; Kincardine —Francis Garden ; Kirkcudhrigkt—lhoraas Miller (afterwards Lord Glenlee) ; Linlithgow— 3 oka Gillon of Wallhouse ; Peebles— 3 &raes Montgomery (after- wards Sir James Montgomery of Stanhope) ; ijere/rcio— Charles Macdowall of Crichen ; Roxburgh— GiVoert Elliot (son of Lord Minto) ; iSeZKrA— Charles Campbell (son of Lord Monzie) ; Stirling and Clachmannan — David Walker ; >rij/