Dictionary of National Biography, 1885-1900/Dundas, Robert (1685-1753)

DUNDAS, ROBERT, of Arniston, the elder (1685–1753), judge, second son of Robert Dundas, second lord Arniston [q. v.], a judge of the court of session, who died in 1726, by Margaret, daughter of Sir Robert Sinclair of Stevenson, was born on 9 Dec. 1685. He was admitted a member of the Faculty of Advocates on 26 July 1709, and without any great application soon became a profound lawyer. Interest and talent secured his advancement, and in 1717 he was appointed solicitor-general. Though more highly trusted than Sir David Dalrymple, the lord advocate, by the Duke of Roxburghe, he felt this an irksome position, and in 1718 applied to succeed Eliot of Minto on the bench; but the place was already given to Sir Walter Pringle. However, he was made, in 1720, lord advocate, in succession to Dalrymple. On 9 Dec. 1721 he became dean of the Faculty of Advocates. On 11 July 1721 he resigned the post of assessor to the city of Edinburgh, which he had held previously to his advancement, and an acrimonious correspondence took place between him and the magistrates of Edinburgh. He sat in the parliaments of 1722–7, 1727–34, and 1734–7 as M.P. for the county of Midlothian. He opposed the malt-tax in 1724, when the Argyll party came with Walpole into power. He held himself somewhat aloof at first from politics, and on the advice of the Duke of Roxburghe forbore next year to join the party forming against the Duke of Argyll, but soon engaged in a violent and even factious opposition to government. In 1727 he opposed the address of the lords of session to the king with a counter address complaining of the malt-tax, and in 1730 promoted a bill to give the court of session the power of adjourning (Wodrow, Analecta, Maitland Soc., iii. 290, 404, iv. 104). With Erskine of Grange Dundas was the chief adviser of the opposition formed of representative peers and members of parliament against the administration of Scotch affairs adopted by Lord Ilay, and in 1734 he brought before the House of Commons the proceedings at the recent election of Scotch peers. This opposition movement was, however, unsuccessful. On 10 June 1737, in succession to Sir Walter Pringle of Newhall, he was appointed a judge of the court of session, but in 1745 he was only dissuaded by his son Robert from retiring into private life. This resolution, it was believed, he would have carried out in 1748 had his hopes of the lord presidency been disappointed; the ministry and independent whigs, however, after a vacancy of nine months, overbore the resistance of the Duke of Argyll, and on 10 Sept. 1748 he succeeded Duncan Forbes of Culloden as lord president, which office he worthily filled till his death at Abbey Hill, Edinburgh, on 26 Aug. 1753. He was buried on 31 Aug. in the family tomb at Borthwick. As an advocate he was both eloquent and ingenious; in private life idle and convivial (see Scott's Guy Mannering, n. 9). He was the author of an eloquent eulogium on Lord Newhall, enrolled in the books of the Faculty of Advocates. His most famous case was his defence of Carnegie of Finhaven in 1728 on his trial for the murder of Charles, earl of Strathmore, whom he killed in a drunken brawl by mistake for Lyon of Bridgeton. The original practice was to allow the jury to find the prisoner generally ‘guilty’ or ‘not guilty;’ about the time of Charles II this was altered to a finding upon the facts of ‘proven’ or ‘not proven.’ In this case it was clear that Carnegie killed Strathmore. If the jury were to find the fact ‘proven,’ leaving the court to pronounce the legal effect of that finding, Carnegie was a dead man. Dundas forced the court to return to the older course, and the jury found Carnegie ‘not guilty,’ and this practice was adopted in subsequent cases. Dundas married, first, in 1712, Elizabeth, eldest daughter of Robert Watson of Muirhouse, who, with four of his children, died in January 1734 of small-pox, and by her he had a son, Robert, afterwards lord president [see Dundas, Robert, of Arniston, the younger], and other children; and, secondly, on 3 June 1734, Anne, daughter of Sir William Gordon, bart., of Invergordon, by whom he had five sons and a daughter. One of these sons, Henry, treasurer of the navy and first viscount Melville, is separately noticed. Dundas's appearance was forbidding and his voice harsh; his portrait is preserved at Arniston, and is engraved in the ‘Arniston Memoirs.’

[Omond's Arniston Memoirs, 1887; Omond's Lord Advocates of Scotl.; State Trials, xvii. 73; Lockhart Papers, ii. 88; Brunton and Haig's Senators; Trans. of Roy. Soc. Edinb. ii. 37; Scots Mag. 1753 and 1757; Douglas's Baronage of Scotl.; Drummond's Hist. of Noble British Families; Tytler's Life of Lord Kames, i. 50.]

J. A. H.