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 show-
