gulations 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regulation as to fees, which fixed them according to the quality of the client and probably was seldom followed, was rescinded.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
