practical pursuit of his profession with vigour, after having previously, as his early proficiency as a lawyer shows us, prepared his mind by intense and accurate study. "From my admission as an advocate," he says, "in June, 1668, I began to mark the decisions of the court of session;" and it is to his uninterrupted industry in this occupation that we owe that valuable mass of precedents, known by the name of "Fountainhall's Decisions," published in two volumes folio, and lately more fully re-edited from the original manuscripts. In a case which he reports during his earlier years at the bar, strong internal evidence, arising from the use of the first person singular the unusual prolixity of the speech,[1] and the absence of the name of the counsel, shows himself to have acted in that capacity. This action was at the instance of the town of Stirling, against the unfreemen in Falkirk and Kilsyth, bearing date January 18, and June 25, 1672. Lauder's speech is a curious specimen of the mixed logical and rhetorical eloquence of the forensic pleading of the age, when the judges acted more as a deliberative assembly, than as a body of lawyers bound to the letter of certain enactments; and the person who addressed them, if he could not sway their passions as those of a modern jury are affected, had a wide field of influence in their reason or prejudices. Contrasted with the restricted legal pleadings of the present day, the following commencement on the part of "the learned gentleman for the prosecution," would appear very singular: "My lord commissioner, may it please your grace, what happiness and cheerfulness the eminent and most eloquent of all the apostles, St Paul, expresses, when he is put to plead his cause before Festus and Agrippa, because the one had long been a judge in his nation, and the other was expert in all the manners and customs of the Jews, the same gladness possesses the town of Stirling, and with them the whole royal burghs, that they are to plead in behalf of their privileges this day, before your grace, the great patron and conservator of them." It is to be remarked, that, in this case, Lauder is pleading for the exclusive privileges of burghs, and in favour of monopolies. He opens his speech with a sketch of the arguments of his adversary, on which, probably with a wish to caricature them, he has bestowed an amiable liberality of doctrine, which Adam Smith could not have excelled, and told many politico-economical truths, which few had then imagined. His own answers to the principles he thus beautifully lays down, sound harsh and jarring in comparison, although they were far more accordant to the principles of the time. "Do not," he says with considerable tact, "think it a light matter to rob the royal burghs of their privileges, which are become their property by as good a title as any of you bruik your lands and estate. By what hand ye shall communicate these liberties (now called in question,) to the defenders, by that same shall ye lop off the royal burghs from being the third estate in the kingdom. Remember that a threefold cord ought not to be easily broken. Consider that lamentable confusion may follow on loosing one pin of the government; that the touching such a fundamental sacred constitution may unhinge the whole; that government is like a sheaf of arrows fast bound, pull out one, all will follow and fall to the ground; and how terribly dangerous such an innovation may be." It will be held in mind, however, that each counsel was feed for the principles he maintained, and that the genuine opinions of both may have almost united in "a happy medium." The speech, on the whole, is full of classical learning, and statistical information, and cannot fail to convey a pleasing idea of the intelligence and talent of a forensic orator of the seventeenth century.
- ↑ Extending from p. 642, to 679, of Brown's Supplement, where it is styled "Fountainhall's Speech for the Pursuers."
