Stair was born James Dalrymple in 1619 but converted to the British-style peerage surname of Stair.

While still in University, he enlisted in the Scottish Army.

On February 17, 1648, a year before Charles I was beheaded in London, Dalrymple was called to the bar in Edinburgh even though there is no record of any law school education.

On July 24, 1657, the British Lord Protector, Oliver Cromwell appointed him to the bench, with a hefty annual salary of 300 pounds sterling silver. At the time, Scotland was in the midst of a 9-year military occupation by the British.

In 1661, when Cromwell died and monarchy restored, Charles II knighted Dalrymple who then became Viscount Stair.

Always reluctant to take the overbearing oaths of allegiance to the British Crown, which included a statement that the church was inferior to the King and that Presbyterians were "fanatics", his recalcitrance eventually cost him his judgeship, from which he resigned briefly in 1663, and again in 1681.

James Dalrymple aka Lord StairsHe retired to his wife's estate in Galloway and there, he finished and published his greatest legacy, the The Institutions of the Law of Scotland deduced from its Originals, and collated with the Civil, Canon and Feudal Laws and with the Customs of Neighbouring Nations which he dedicated to the British king.

This represented a first, complete codification of the Scottish law.

Regardless, the British pursued him for his refusal to take the oath of allegiance. His wife Margaret was charged with attending an illegal meeting and his son fined 500£.

Fearing incarceration, he exiled himself to Holland until 1689, where he published Scotland's first written law reports, The Decisions of the Lords of Council and Session and in the most important cases debated before them: with the Acts of Sederunt.

While he was gone, he was convicted in abstentia for treason.

When James II became king, Stairs fell into his favour and was again appointed a judge in Scotland.

In 1690, his son, Master Stair helped the British King James II massacre of the MacDonalds of Glencoe, which again roused public outcry on the old judge.

An anonymous pamphlet, dated 1689, but believed to have been written by Robert Ferguson, charged:

"Nor is there a man in the whole kingdom of Scotland who hath been more accessory to the robberies and spoils, and who is more stained and died with the bloody measures of the time than this Lord Stair."

Stair took the high road and in about April, 1690, he issued a long apology, which was published as An Apology for Sir James Dalrymple of Stair, President of the Session.

That same year, he was made Lord Stair.

He died on November 25, 1695 in Edinburgh, at the age of 77,  and was buried at St. Giles Cathedral.

His contemporary Gilbert Burnet wrote that Stair was:

"... a man of great temper and of a very mild deportment,  but a false and cunning man and a great perverter of justice in which he had a particular dexterity of getting some plausible colors to the greatest injustice."

While it is true that there appears to have been nothing remarkable about his career as a judge, Stair lived in a volatile time in Scotland where allegiances changed frequently and suddenly, often with fatal results. Dalrymple fell into the trap of mixing judgeship with politics, long a modus operandi of the wealthy Scot family but in his case, in his time, a toxic mix. This, excited by forced religion, martial law and civil war within their mighty neighbours to the south.

But his 1681 Institutions became the foundation of modern Scottish law, albeit now heavily influenced by English law, especially as to commercial law. Even today, it is fondly known by Scottish law students as Stairs Institutes.

Irving writes:

"He was the first writer who reduced to the law of Scotland to the form of a system. (He) found it a rude and undigested mass ... extracting order out of confusion.

"Nor would it perhaps be easy to mention an instance of another individual having effective to signal an improvement in the jurisprudence of any modern nation."

REFERENCES:

  • Burnet, G., History Of My Own Times, Volume 2, page 45.
  • Duhaime, Lloyd, Johnston, Archibald 1611-1663
  • Duhaime, Lloyd, The Law's Hall of Fame
  • Houston, R. and Know, W., eds., The New Penguin History of Scotland (London: Penguin Group, 2001).
  • Irving, D., Lives of Scottish Writers (Oxford: Oxford University, 1839), pages 152-176.
  • The Stair Society

Duhaime.org acknowledges with gratitude the suggestion of Lord Stair for inclusion in the Law's Hall of Fame, by professor Donald Galloway of the University of Victoria (Canada) School of Law.