the Scottish council admitted Stair to the bench on 1 July, and Cromwell confirmed their appointment on the 26th. When attacked after the Restoration for accepting office under the usurper he defended himself, lawyer-like, by a distinction: ‘I did not embrace it without the approbation of the most eminent of our ministers who were then alive, who did distinguish between the commissions granted by usurpers which did relate only to the people, and were no less than if they had prohibited baking or brewing, but by [i.e. without] their warrant, and those which relate to councils for establishing the usurped power or burdening the people.’ His tenure of office at this time was short, for after Cromwell's death the courts were shut, and a new commission issued on 1 March 1660, in which his name appears, did not take effect. His intercourse with the English judges sent by Cromwell, and with Monck, enlarged his knowledge of English law and politics. He advised Monck the day before his departure from Scotland to call a full and free parliament, a counsel which resulted in the Restoration. He had never really favoured the republican form of government, and was at heart a supporter of limited monarchy. ‘I have ever been persuaded,’ he wrote in his apology, ‘that it was both against the interest and duty of kings to use arbitrary government; that both kings and subjects had their title and rights by law, and that an equal balance of prerogative and liberty was necessary for the happiness of a commonwealth.’ Soon after the Restoration he visited London with his neighbour and friend, Lord Cassilis, to do homage to Charles, by whom he was well received and appointed one of the judges of the court of session in the new nomination on 13 Feb. 1661. He was also placed on the commission of teinds, and on that for ascertaining the losses by the Duke of Hamilton and others during the rebellion.
It was not long before the arbitrary tendencies of Charles II's government showed themselves. The royal prerogative was asserted under the influence of Middleton and Lauderdale, in a manner and by a variety of measures quite inconsistent with constitutional government, and where one of these measures touched the independence of the judges Stair stood firm in his opposition. A declaration was exacted from all persons in public trust, including judges, that the national covenant and the solemn league and covenant were unlawful oaths. Stair, along with three of his colleagues, having declined to take this declaration, an intimation was made that if they did not comply before 19 Jan. 1664 their seats on the bench would be declared vacant. Stair forestalled his deposition by a letter on the 14th stating that his resignation was already in the king's hands. Charles summoned him to London, and allowed him to take the declaration subject to an implied understanding that he did so only ‘against whatever was contrary to his majesty's right and prerogative,’ and on his return he was readmitted as judge. During the next five years his life was passed in the even tenor of judicial duties. The year 1669 was marked by the death of his daughter Janet within a month of her marriage to Dunbar of Baldoon, a neighbouring laird in Wigton. It was from the tradition of this event that Scott took the plot of the ‘Bride of Lammermoor.’ That there had been a prior engagement to Lord Rutherford, of which her mother did not approve, appears certain; but as the traditions vary as to whether the laird of Baldoon or his bride was the person stabbed on the fatal night, the tragic element of the story probably belongs to the domain of fiction, which sprang up in a superstitious district, where rumour did not hesitate to ascribe to Lady Stair and other members of her family the stigma of witchcraft. Scott expressly disclaims ‘tracing the portrait of the first Lord Stair in the tricky and mean-spirited Sir William Ashton.’
In August 1670 Stair was one of the Scottish commissioners to treat of the union of the two kingdoms, but the negotiations broke down through a demand on the part of the Scotch for the same number of members in the parliament of the United Kingdom as in their own, to which their English colleagues refused to agree. Towards the close of the year he was appointed president of the court of session on the resignation of Sir John Gilmour; the lord advocate, Nisbet of Dirleton, having declined the office. Sir George Mackenzie, in noticing Stair's appointment, praises ‘his freedom from passion, which was so great that most men thought it a sign of hypocrisy.’ ‘This meekness,’ he adds, ‘fitted him extremely to be a president, for he thereby received calmly all men's information; but that which I admired most in him was that in ten years' intimacy I never heard him speak unkindly of those that had injured him.’ His conduct as a judge did not always find so favourable a critic as Mackenzie.
A celebrated incident in Scottish legal history—the secession of the advocates, who with scarcely any exception withdrew from practice from 10 Nov. 1670 to January of the following year—made him unpopular with a profession tenacious of its privileges, and perhaps more than any other imbued with the corporate spirit. Among the re-
