Dalrymple, James (1619-1695) (DNB00)
DALRYMPLE, Sir JAMES, first Viscount Stair (1619–1695), Scottish lawyer and statesman, was the son of James Dalrymple, laird of Stair, a small estate in Kyle, Ayrshire, and Janet, daughter of Kennedy of Knockdaw, by Helen Cathcart of Carleton. His ancestors on both sides were adherents of the Reformation, and are to be found among the Lollards of Kyle who were persecuted for their acceptance of Wycliffe's tenets by Blackadder, archbishop of Glasgow, in the end of the fifteenth century. Ayr and the south-west of Scotland was the country in which the seed of the reformed doctrines was first sown, and it continued during the sixteenth and seventeenth centuries to be the part of Scotland most firmly attached to them. James Dalrymple was born in May 1619 at his father's farm of Drummurchie in Carrick, and appears to have been an only child. His father died in 1625, and his mother, ‘a woman of excellent spirit, took care to have him well educated,’ first from 1629 to 1633 at the grammar school of Mauchline, and afterwards in the university of Glasgow, where his name appears in 1635 as a student, and on 26 July 1637 as the first in the list of arts graduates. After taking his degree he went to Edinburgh, having intended to follow the profession of law, but the civil war interrupted his studies, and he commanded a troop in the regiment of William earl of Glencairn, which probably took part in the battle of Duns Law, where David Leslie defeated Charles I. He continued to serve in the army till March 1641, when he was recalled to Glasgow to compete for the office of regent in the university, to which he was elected. Though he retained his company for some time, he had now chosen a civil career. Logic, morals, and politics, with the elements of mathematics, were the subjects he taught. The notes of his logic lectures by Thomas Law have been preserved. He remained as regent in Glasgow for six years, and proved an active teacher as well as diligent in the conduct of college business. Among his colleagues as regents were David Forsyth, David Dickson, David Mure, Robert Semple, Robert Maine, first professor of medicine, and Robert Baillie, who was elected to the newly instituted professorship of theology. In September 1643 he resigned his office, as the statutes required, in order to obtain leave to marry, but was re-elected the same day. His wife, Margaret Ross, coheiress of Balneil in the parish of Old Luce, Wigtownshire, brought him an estate of 300l. a year. He resigned his office as regent in October 1647, and on 17 Feb. following was admitted to the Scottish bar, and removed to Edinburgh.
The year after his call to the bar Dalrymple went as secretary to the commission appointed by parliament to treat with Charles II as to the terms on which he was to return to Scotland. Along with the Earl of Cassilis, Brodie, laird of Brodie, Winram, laird of Libberton, and Alexander Jaffray, provost of Aberdeen, the commissioners sent by parliament and a commission from the general assembly headed by Robert Baillie, whose letters gave a graphic account of the events of the time, he sailed from Kirkcaldy on 17 March 1649, and, landing at Rotterdam on the 22nd, reached the Hague on the 27th. The negotiations continued till 1 June, when the commission and Dalrymple returned to Scotland on 11 June. During his absence he had been appointed a commissioner for the revision of the law. The troubles of the times prevented this commission from acting, but it is possible his appointment directed the attention of the young lawyer to the work on which his fame rests, the institutions of the law of Scotland.
On 8 March 1650 he was again sent as secretary to a second commission appointed to meet Charles at Breda, which was accompanied, as the preceding one had been, by commissioners from the general assembly. The commissioners were divided in opinion. Dalrymple sided with the party disposed to exact less stringent pledges than those which Charles ultimately accepted. He was sent back to Scotland with the closed treaty, and on 20 May was despatched by the parliament to meet the king and the commissioners, who landed at the Bogue of Gicht in Aberdeenshire on 23 June.
From his return until 1657, when he was made a judge of the reformed court of session by Cromwell at the instance of Monck, he practised at the bar, gaining the character rather of a learned lawyer than a skilful pleader. In 1654 he refused, with most of the advocates, to subscribe the tender or oath of allegiance to the Commonwealth and abjuration of royalty, which the secession from practice of the leading advocates forced Cromwell to withdraw. Monck described him, in recommending his appointment as judge, as ‘a very honest man, a good lawyer, and one of considerable estate. There is scarce a Scotchman, or Englishman who hath been much in Scotland, but knows him, of whom your highness may inquire further concerning him.’
The pressure of business requiring an immediate filling up of the vacancy, Monck and 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 regulations for the conduct of judicial business issued by a commission on which Stair served, was one regulating the fees of advocates, against which they were so incensed that they opposed the whole regulations, though containing many salutary reforms. Stair is said not to have approved the regulations as to fees, but he acted with strictness in enforcing submission to the regulations when passed, and the secession, like other strikes, broke down through want of union in the seceders, some of whom returned to practice. In 1681 the regulation as to fees, which fixed them according to the quality of the client and probably was seldom followed, was rescinded. In the parliament of 1672 Stair sat for the shire of Wigton, and as one of the committee of the articles took part in the legislation, which was of a more creditable character in the department of private than of public law. The acts for the regulation of the courts, for the protection of minors, for the registration of titles, and for diligence or execution against land for debt by the process called adjudication in Scottish law, bear unmistakable signs of his handiwork. The combination of the office of judge with that of legislator allowed by the Scottish constitution, although contrary to modern ideas, had the advantage of securing the supervision of those most skilled in the administration of law in devising its reforms. He again sat in the parliament of 1673–4. In the latter year the dispute between the bench and bar broke out anew on a ground in which the former was less clearly in the right than in the earlier secession—the claim by the latter to a right of appeal from the court of session to parliament. The appeal taken in the case of the Earl of Dunfermline and the Earl of Callendar, which was the occasion of this dispute, was upon a point of procedure, and if such appeals had been allowed, the interference with the ordinary course of judicial business would have been intolerable. But behind the merits of the particular case lay the feeling that judges appointed by the crown were subservient to its influence, while the advocates represented the independence of the people and the ancient rights of the Scottish parliament. An unfortunate step of the privy council, which prohibited the advocates who supported the right of appeal from residing within twelve miles from Edinburgh, increased the odium against the judges, and although the matter was at last accommodated by the submission of several of the leaders of the bar, whose example was followed by the rest as in the earlier secession, it was not forgotten at the time of the revolution settlement. One of the resolutions of the constituent parliament of 1689 was a declaration ‘that every subject has right of appeal to parliament, and that the banishment of the advocates was a grievance.’ It is to this dispute that the appeal from the Scottish supreme court to the British House of Lords owes its origin; but it has been found necessary to limit the right of appeal in the manner Stair and his brethren on the bench contended for, and practically to restrict it to judgments on the merits, prohibiting it, unless in exceptional circumstances, from judgments pronounced during the progress of the cause. The right as regarded the original dispute was not altogether on the side of the bar, but the high-handed way in which they were dealt with by the privy council was one of the too frequent instances at this time of arbitrary government, and Stair found it necessary after the revolution to defend himself by the statement that he was absent from the council when the obnoxious order banishing the advocates was issued; ‘God knows,’ he adds with emphasis, ‘I had no pleasure in the affairs which were then most agitated in the council.’
In 1677, when Lauderdale came to Scotland, and the persecution of the covenanters became more severe than before, Stair protested against the worst measures of the privy council—the introduction of the highland host into the western shires, and the imposition of bonds of law burrows to oblige all persons in office to deliver up any minister who kept a conventicle. He also obtained some concessions in the trial of ecclesiastical offences, and in particular the provision that no one when accused should be examined as to the guilt of any but himself. In the court over which Stair had a more direct influence many important reforms were carried out by acts of sederunt, as its rules of procedure are called. In 1679 he was summoned to London to defend the court against accusations the precise nature of which is not known, but apparently for being too much under the influence of Lauderdale. His defence was successful, and in a letter to his colleagues he urged them ‘to be more and more careful that by the speedy and impartial administration of justice the people may find themselves in security and quietness, and that their rights and interests are securely lodged in your hands.’ When towards the close of the year the Duke of York came to Scotland to assume the government, Stair addressed him in a speech which cannot have been to the taste of his hearer, who had just escaped from the debates on the Exclusion Bill, ‘that as the nation was entirely protestant it was the fittest place his royal highness could make his recess to at that time.’ On the return of the duke in the following year, 1680, the disguise of a conciliatory policy which he at first adopted was thrown off, and military commissions to Claverhouse and other officers, as well as the torture, were freely resorted to in the vain attempt to stamp out the covenanters. When in 1681, with the same object in view, the Test Act was carried, Stair attempted to lessen its severity and turn its edge by a clause declaring that the protestant religion should be defined in it as ‘the religion contained in the confession of faith recorded in the first parliament of James I, which is founded on and agreeable to the word of God;’ but the form in which the act passed, though self-contradictory, was such that no honest man could safely sign it. Argyll, who took it with a declaration that he did so only ‘so far as it was consistent with itself and the protestant religion,’ was thrown into prison, tried, and condemned for treason, but escaped before the day fixed for his execution. Stair, dreading a similar fate, fled to London, but through the influence of the Duke of York was refused an audience with the king, and in a new commission of judges his name was omitted.
His compulsory leisure enabled him to devote undivided attention to the preparation of the ‘Institutions of the Law of Scotland,’ the first, and on the whole the greatest, of the institutional or complete treatises upon the law of Scotland. Though a great part of its matter is now antiquated, through the gradual abolition of the feudal system and the assimilating influences of the law of England, both statutory and judicial, the spirit which animates Stair's work has been transmitted to the Scottish law of the present day. Building on the solid foundation of the Roman civil law as modified by the equity of the canon, and adapted to modern circumstances by the civilians of France and Holland in the sixteenth and seventeenth centuries, the law of Scotland is, thanks greatly to Stair, a better organised and arranged system of jurisprudence than the law of the sister country. It was saved from the unfortunate divorce of law and equity, and through the absence of so large a body of precedents as the English courts rapidly accumulated, it remained of more manageable volume, following more frequently reason and common sense, on the whole better guides than a slavish adherence to what had been decided in prior generations.
Stair was not allowed to enjoy his retirement unmolested. Claverhouse went to Galloway armed with a military commission. Proceedings were taken against Lady Stair for attending conventicles, his factor and tenants were severely fined, and Stair himself cited before the council and threatened with being seized as a criminal. A fierce dispute arose between Claverhouse and the Master of Stair as to the conduct of his subordinates in the regality of Glenluce, of which he was hereditary baillie. When the matter was referred to the privy council, the master was found guilty of employing persons as his clerk and baillie who had been convened before Claverhouse, of imposing inadequate fines, of prohibiting others from attending Claverhouse's courts, and of causing one of his servants to make a seditious complaint against the soldiers for exaction and oppression, and also for himself misrepresenting Claverhouse to the council. He was accordingly deprived of the regality and fined, while his adversary was absolved from all charges and declared ‘to have done his duty.’ Stair had still powerful friends, especially the Marquis of Queensberry and Sir George Mackenzie, now lord advocate, but they found it impossible to countenance him against his more powerful enemies, the Duke of York and Claverhouse. It is probable they even gave him secret advice to quit the country, and in October 1682 he followed his old pupil Argyll to Holland as ‘the place of the greatest common safety.’ He chose Leyden for his residence. Stewart of Coltness, the son of one of his fellow-exiles, gives an interesting account of the Scotch refugees who then found a home in the hospitable republic. Stair occupied his time with the publication of the decisions of the court of session from 1661 to 1671, dedicating them in an epistle, dated at Leyden 9 Nov. 1683, to his former colleagues on the bench. His industry in collecting the cases he reports is vouched for by a curious passage in this epistle: ‘I did form,’ he says, ‘this breviat of decisions in fresh and recent memory de die in diem as they were pronounced. I seldom eat before I observed the interlocutors of difficulty that past that day, and when I was hindered by any extraordinary occasion I delayed no longer than that was over.’ Three years later he appeared as an author in a new field by printing at Leyden his ‘Physiologia Nova Experimentalis,’ whose purport is described in the title-page, ‘in qua generales notiones Aristotelis Epicuri et Cartesii supplentur, errores deteguntur et emendantur, atque claræ distinctæ et speciales causæ præcipuorum experimentorum aliorumque phenomenωn naturalium aperiuntur ex evidentibus principiis quæ nemo antehac perspexit et prosecutus est, authore D. de Stair, Carolo II. Britanniarum Regia Consiliis Juris et Status nuper Latinitate donata.’
This little treatise obtained a favourable notice from Bayle, and is interesting as showing the activity of mind of the exiled lawyer, now approaching old age, resuming the speculations of his youth as a student of philosophy, and moved by the new birth of natural science which distinguished the close of the seventeenth century. But Stair had not emancipated himself from the old Aristotelian formulæ, or caught the light which in the very year of the publication Newton revealed to the learned world by his ‘Principia.’ From a contract with the printer Anderson of Edinburgh, which has been preserved, we learn that Stair had projected a more comprehensive treatise, embracing inquiries concerning human knowledge, natural theology, morality, and physiology. The ‘Physiologia’ is all that remains of the ambitious scheme, unless the posthumous tract ‘On the Divine Perfections’ may be deemed a sketch of his intended work on natural theology. Not even in Leyden was Stair left undisturbed by the relentless persecutors who then misgoverned Scotland. The States of Holland were asked but refused to expel him from their dominions. Spies were sent to watch his movements, but he eluded them, shifting from one town to another, but still keeping Leyden as his headquarters. On 2 Dec. 1684 Mackenzie as lord advocate was ordered to charge Stair, Lord Melville, Sir John Cochrane of Ochiltree, and several other persons with treason, for accession to the rebellion in 1679, the Rye House plot, and the expedition of Argyll. Sentence was pronounced against several persons involved in the same charges; but the proceedings against Stair were continued by successive adjournments till 1687, when they were dropped. The cause of their abandonment was the appointment in January of that year of his son, the Master of Stair, who had made peace with James II, to the office of lord advocate, of which Mackenzie had been deprived for refusing to relax the penal laws against Roman catholics. On 28 March a remission was recorded in favour of Stair and his family, to which was oddly tacked a pardon to the young son of the master, afterwards Field-marshal Stair, for accidentally killing his brother. The master only held the office of lord advocate for a single year, when he was, according to the anonymous author of the ‘Impartial Narrative,’ printed in ‘Somers Tracts,’ ‘degraded to the office of justice clerk,’ James II and his advisers finding him not a fit tool for their purposes. Stair refused to accept the remission, and remained in Holland until the following year, 1688, when he accompanied William of Orange in his own ship, the Brill, in the memorable voyage from Helvoetsluys to Torbay. He had made the acquaintance of William through the pensionary Fagel, and according to a reliable tradition, his horse having been lost on the voyage, William supplied him with one from his own stud. When they left Holland, Stair is said to have taken off his wig, and, pointing to his bare head, said: ‘Though I be now in the seventieth year of my age, I am willing to venture that my own and my children's fortunes in such an undertaking.’ William, who was as constant in his friendship as the Stuarts were fickle, was ever afterwards a steadfast supporter of the Dalrymple family. The Master of Stair was reappointed lord advocate, and on the murder of President Lockhart by Chiesly of Dalry, Stair himself was again placed at the head of the court of session.
An unscrupulous opposition called the Club, which sprang up in the Scottish parliament, led by Montgomery of Skelmorlie, who coveted the office of secretary for Scotland, and Lord Ross,who aimed at the presidency of the court of session, now attacked the courtiers or king's party, of which the Master of Stair was the representative, with a virulence worthy of the worst days of party. An anonymous pamphlet, variously attributed to Montgomery and to Fergusson the plotter, appeared in Glasgow towards the end of 1689, entitled ‘The late Proceedings of the Parliament of Scotland stated and vindicated,’ which contained a fierce personal invective against Stair. It charged him with illegally assuming the office of president in the nomination of Charles II, without the choice of the judges, contrary to the act of 1579, c. 93, and asserted that he had been ‘the principal minister in all Lauderdale's arbitrariness and all Charles I's usurpations. Nor was there a rapine or murder in the kingdom under the countenance of the royal authority of which he was not either the author or the assister in, or ready to justify.’ It was not a time when libels could be safely left unanswered, and Stair published a small quarto pamphlet, styled ‘An Apology for Sir James Dalrymple of Stair, President of the Session, by himself.’ To refute the charge of being a time-server, he appeals to his refusal of Cromwell's tender in 1657, the declaration of 1663, and the test of 1681. ‘Let my enemies,’ he urges, ‘show how many they can instance in this nation that did thrice forsake their station, though both honourable and lucrative, rather than comply with the corruption of the time.’ The charge of subserviency to Lauderdale he met with the reply that he joined in the representations which led Lauderdale to make several acts of council correcting abuses. The alleged obscurity of his decisions with which he had been reproached was due to the libeller's ignorance of law, and he appeals with just confidence to the publication of the ‘Institutions’ as a proof ‘that no man did so much to make the law known and constant as I have done.’ He closes with a technical argument against the accusation of accepting the presidency from Charles without a vote of the judges. Shortly after the issue of the apology Stair was created, on 1 May 1690, Viscount of Stair, Lord Glenluce and Stranraer. He had now reached the summit of his prosperity. His closing years were clouded with private and public cares. In 1692 he lost his wife, the faithful partner of the vicissitudes of his life during all but fifty years. The part she played in the advancement of her family from comparative obscurity to the highest offices in the state turned against her the jealousy of the vulgar, which resents the sudden rise of others as a personal injury. Her support of the presbyterian preachers made her odious to the Roman catholics and Jacobites, and she shared with her husband the enmity of the bitter partisans of the Club. In the satires of the time she was described as ‘the witch of Endor,’ ‘Aunty,’ and ‘Dame Maggie Ross,’ and charged with making a paction with the evil one, who enabled her to assume various shapes at will. The misfortunes as well as the fortune of her family were laid at her door:
It's not Staire's bairnes alone Nick doth infest;
His children's children likewise are possest.
One daughter had been the victim or the cause of the tragedy of the ‘Bride of Lammermoor,’ another was a witch like herself; her grandson had killed his brother. Her own ‘long wished for and tymely death’ was celebrated in a coarse epitaph which prophesied the fall of her husband and family. This prophecy was not fulfilled, and her true character appears to have been that of a woman of strong purpose and much spirit, well able to bear either good or evil fortune.
The massacre of Glencoe in 1692 has left an indelible stain on the memory of William of Orange and the Master of Stair, his principal adviser in the affairs of the Scottish highlands. The commission reluctantly granted in 1695 to avoid a parliamentary inquiry directly implicated the master by finding ‘that it appears to have been known at London, and particularly to the Master of Stair, in the month of January 1692, that Glencoe had taken the oath of allegiance, though after the day prefixed, and that there was nothing in the king's instructions to warrant the committing of the foresaid slaughter, even as to the thing itself, and far less as to the manner of it.’ His own letters contain damning proof of the merciless spirit with which he regarded the Macdonalds. The only extenuating circumstances which can be pleaded on his behalf are that he was personally ignorant of the peculiar treachery which accompanied the execution of the massacre, and that the feelings with which he regarded the Celtic clans were in part due to the recollection of the conduct of the highland host in the western shires, and the view which a law-abiding lowlander of those days took of their freebooting habits. Stair himself is not mentioned in the report of the commission, and the only charge that bears directly against him is that he was a member of the privy council which advised that Glencoe's oath should not be taken after the time fixed for its reception had passed. But some share of the odium which attached to his son could not fail to be reflected, and the opportunity was too good a one to be lost by his bitter opponents, who renewed their charges against the president for his judicial conduct. In the parliament of 1693 the first public attack was made upon him by a disappointed suitor, who brought in a bill complaining of injustice done to him in a suit before the court. It was remitted by a narrow majority to a committee, which after full inquiry exculpated Stair. Two retrospective bills were also introduced, one declaring that no peer should enjoy the office of lord of session, and the other that the crown might appoint one of the lords for a time president, any law or custom to the contrary notwithstanding. These bills were so evidently aimed at Stair that he printed an information, addressed to the commission and parliament, which contained a convincing argument against their passage as unconstitutional in respect of their interfering with the independence of the judges who hold office for life under the Claim of Right as contrary to the act of institution of the court, and as an infringement under the pretence of being an enlargement of the royal prerogative. His argument succeeded, and neither of the bills became law. Other charges made against him, of using undue influence in obtaining the nomination of judges subservient to him, and favouring his sons, three of whom were advocates, had no foundation, though his defence of the latter charge—‘When my sons came to the house, I did most strictly prohibit them to solicit me in any case, which they did exactly observe’—is a proof of the prevalence of an evil custom. His zeal for the administration of justice was shown by a series of acts of sederunt of the court, passed during his presidency, to correct this as well as other abuses, and by the report, issued shortly after his death, of a parliamentary commission on which he served, appointed ‘to take a full and exact tryall of all abuses and exorbitancies or exactions practised in prejudice of their majesties lieges in any offices of judicature.’ This report formed a basis of the Act for the Regulation of the Judicatures, which received the royal sanction on 29 April 1695. On 25 Nov. 1695, Stair, who had been for some time in failing health, died in Edinburgh, and was buried in the church of St. Giles. In the same year there was published in London a small octavo entitled ‘A Vindication of the Divine Perfections, illustrating the Glory of God in them by Reason and Revelation, methodically digested into several heads. By a Person of Honour, with a preface by William Bates and John Howe,’ two nonconformist ministers. This work has always been ascribed to Stair, who had probably made the acquaintance of Howe when an exile like himself in Holland. It bears evidence of his authorship in the admirable distinctness of conception and lucid order of treatment, and it had probably been a portion of the inquiry concerning natural theology which he contemplated when he made his contract with the printer in 1681. But though interesting as showing the serious bent of his thoughts and the piety of his character, which his implacable adversaries deemed hypocrisy, it has no other value. Stair was not a theologian any more than he was a natural philosopher, yet one thought from this forgotten treatise deserves to be preserved. ‘The discovery of the Natures of the Creatures and all experimental knowledge hath proceeded from the beginning, and shall to the end increase, that there might never be wanting a suitable exercise, diversion, and delight, to the more ingenious and inquiring men,’ and he cites this as one of the proofs of the goodness of God.
Stair left four sons, of whom John, first earl Stair, Sir Hew, his successor as president in the court of session, and Sir James Dalrymple of Borthwick, antiquary, are the subjects of separate articles. His fourth son, Thomas, became physician to Queen Anne. He was survived by three daughters, Elizabeth, wife of Lord Cathcart, Sarah, who married Lord Crichton, eldest son of the Earl of Dumfries, and Margaret, wife of Sir David Cunningham of Milncraig. The best and perhaps only authentic portrait of him, by Sir John Medina, in the house of New Hailes, the property of his descendant, Mr. Charles Dalrymple, has been frequently engraved. Another, which Mr. D. Laing conjectured to be the work of Paton, a Scottish painter, is in Walpole's ‘Royal and Noble Authors,’ Park's ed. v. 126. A third lately sold in London, and bought by the present Earl of Stair, is probably a copy of Medina's somewhat altered by a later artist, or possibly by Medina himself.[For fuller details see Mackay's Memoir of Sir James Dalrymple, first Viscount Stair, Edinburgh, 1873.]