will uphold and maintain them all, and that, too, in such plain, simple, and straightforward terms as to render misconstruction impossible. No man can believe in opposites at the same moment of time; how then can he swear to maintain them?' The opinions of the legal gentlemen may be well summed up in that of the learned Sheriff of Renfrewshire :-"The oath of allegiance simply requires the taker of it "to be faithful, and bear true allegiance," which imposes no higher or greater obligation than exists at common law, independently altogether of the oath. The oath binds no one but the taker of it, and no obligation lies upon him to recognise the oaths which may have been taken by the person to whom fealty or allegiance has been sworn.' One of the resolutions carried in the Synod, founded on the legal opinions so collected, was in the following very accurate and judicious terms: On inquiry, it has been found that the construction of the oath (hitherto maintained by the Church) is questioned and denied on such grounds as these: 1st, The oath (of allegiance), on the face of it, and in the terms employed, does not necessarily bear the construction put upon it, as pledging the person to any objectionable element in the constitution. 2d, Multitudes in all other Christian denominations do not take it in any such sense. 3d, The British Constitution leaves every man at perfect liberty to propose and advocate any changes in itself and in its administration, provided he adopt a constitutional course of procedure, and abstain from all rebellious violence. And, lastly, it is inconceivable that a Christian legislature should invite Dissenters to accept civil privileges on the condition of taking an oath which would be virtual perjury, the compromise and abandonment, in their civil capacity, of principles which they conscientiously maintained as dissenters from the Established Church.' The question to many may appear to be a splitting of hairs as fine as that of the gossamer; but it has excited no considerable portion of public attention, not confined to the Church in which the controversy has been principally agitated. Many good and talented men have been kept back from entering our civic councils, or joining 'the noble army of Volunteers,' or even exercising their right of franchise either for parliamentary or burgh honours. Anything which can help to disabuse this conscientious scruple, and restore confidence in any section of the public, is to be encouraged; and it is for this reason, as well as the legal disquisition involved in the matter, that we have devoted so much of our space to what may at first sight not appear to be a theme strictly within the sphere of jurisprudence, although we stand up for every matter which concerns the well-being of the State and of all the subjects of the realm, as being legitimately within the wide-spread reach of that, the most divine of the sciences. BIOGRAPHICAL SKETCHES OF THE SENATORS OF THE COLLEGE HEW DALRYMPLE of North Berwick, the third son of Lord President Stair, came to the bar in 1677, and was soon appointed one of the Commissaries of Edinburgh. Whilst he held that office he committed an indiscretion which would have gone far to ruin the professional prospects of any one not belonging to the then dominant family of the Darumples.' He was presiding at a proof in a process of divorce, when the counsel for the defender, Mr Æneas Macpherson, advocate, accused him of partiality to the pursuer, a wellknown nobleman. Dalrymple, instead of punishing Macpherson for contempt of court, took the charge as a personal insult, and instantly sent him a challenge, which was as readily accepted. The matter coming to the knowledge of the Privy Council, they at once took steps to prevent bloodshed, and punish both intending combatants. Fountainhall (i. 270) thus describes the course the Council took with regard to them: 'Some thought one sitting in judgment might have sent any reviling him to prison; but he challenged Mr Æneas to a combat; and the Council found him as guilty in accepting it, and ordained him to crave the Commissar's pardon, and confined them both some time, and then laid Mr Æneas in the Tolbooth for a short time.' The way in which their Lordships distinguished between the holder of the office who had been insulted, and the individual who had taken a wrong method of obtaining redress, is very noticeable; for while they made Macpherson apologize to Commissary Dalrymple, they subjected both Mr Macpherson and Mr Dalrymple to punishment. In 1684, when his brother Sir John's (the Master) papers were seized, Dalrymple was obliged to find bail for his appearance, in case proceedings should be directed against VOL. VII.-NO. LXXVI. APRIL 1863. 2 A him also. He was not, however, subjected to any further inconvenience, and continued to practise with much success till after the Revolution, when he was chosen Dean of the Faculty of Advocates, an office which he held till his elevation to the bench. Since the death of Lord Stair in 1695, no permanent appointment had been made to the chair of the President of the Court. For upwards of two years the other judges had been obliged to elect one of their own number to preside; but these elections were quite temporary, the sole right of appointment being vested in the Crown. During this long interregnum, it is not to be wondered at that several aspirants to the chair used every means in their power to gain the coveted post. Prominent among these was Hamilton of Whytlaw, whom we noticed in last paper, and who was very sanguine that he would obtain the appointment through the interest of Lord Tullibardine. But with the others he was greatly disappointed when a letter came down from the King, in March 1695, nominating the Dean of Faculty. The Court met on the 29th to take the Royal letter into consideration, but ultimately adjourned 'the admission till June, the ordinary time of Session, that then it may be the more solemn, and that they would acquaint his Majesty that the nomination was very acceptable to them.' In June the Court met in terms of the adjournment; and on proceeding to consider the King's letter, a question arose as to the mode of admitting a President. Some of the judges maintained that he should be admitted at once without undergoing the trials prescribed by the Act of Sederunt, 31st July 1674, because it never fell to the President's duty to sit in the Outer House, and because the commission in his favour, unlike that of the other judges, bore no reference to his being 'tried' before admission. 'On the other hand,' writes Fountainhall (ii. 1), it was argued that the Act was made for the admission of the Ordinary Lords, whereof the President could not be denied to be one, and made no distinction or exception of the President more than another Lord, and so must be followed; and notoriously if qualifications must not dispense with the preparative. That if an unfit person should be named by the king per obreptionem? The Lords might try and reject. And though the Lords Newton and Carnwath were admitted Presidents without undergoing trial, yet Newton had been a Lord for some years, and had then given in his trial, and Sir George Lockhart's case fell in dispensing times, and not to be drawn into example; for then the Test and other Acts of Parliament were by the Government at that time laid aside; so it was no wonder to see a lesser formality neglected. Then the vote was stated, admit presently or try, and it was carried to try by the plurality, in the terms of the Act of Sederunt.' There then occurred another difficulty. It was Whytlaw's turn to sit in the Outer House, and Dalrymple should have sat with him as Lord Probationer. But so far did the former carry his ill-humour, that he 'shunned to sit with him.' The Court did not insist upon his doing so; and accordingly, Fountainhall sat in the Outer House in his stead, and Dalrymple sat as Lord Probationer with him. Ultimately he took his seat as Lord President on 7th June 1698. Here we may pause for a little to inquire what the powers of the Court are in regard to the trial of those who have been nominated by the Crown to the office of Judge in the Court of Session. A question upon this subject was asked by the Lord Chancellor very recently in an appeal to the House of Lords, when, reference having been made to an opinion of a Lord Probationer, his Lordship inquired, more suo, 'Do they ever pluck a Probationer?' The counsel in the appeal (Mr Anderson, Q.C.) replied correctly, that there was only one recorded instance of a 'pluck,' in the case, namely, of Mr Patrick Haldane, in 1721. The circumstances are sufficiently interesting to justify us in stating them very shortly here. On Fountainhall's resignation in December 1721, the Crown nominated as his successor Mr P. Haldane, advocate. The Faculty and the Clerks of Court represented that Haldane was not qualified in terms of the 19th Article of the Treaty of Union, in respect he had not 'served' five years as an advocate in the College of Justice. It was not denied that he had passed as advocate so far back as January 1715; but it was said that since then he had been very seldom in attendance upon the Court, being partly absent in London attending Parliament, of which he was a member, and even when in Edinburgh being engaged in his duties as a Commissioner of Enquiry, his office hours as such being the same as those of the Court. Haldane admitted his frequent absence from Edinburgh, but maintained that, having been nearly seven years passed as an advocate, the Court had no right to inquire how much of that time he had spent in actual attendance on their sittings; and even if they did inquire, his absence, being rei publicæ causa, could not be stated against him to the effect of disqualifying him for the office of a judge. The Court sustained their own jurisdiction to decide on the objection which had been stated, and on consideration gave effect to it, and declined to examine Mr Haldane as to his legal qualifications. The Lord Advocate (R. Dundas) insisted upon the Court's proceeding to try the presentee, whereupon their Lordships presented an address to the King, containing a very temperate but very firm assertion of their right to judge of all objections to the qualifications of a person nominated to the office of Judge. The King wrote to the Court by one of his Secretaries of State, waiving all objections to their jurisdiction. They then reconsidered the case, and adhered to their former decision, resting their judgment chiefly on this, that even on Haldane's own admissions it was clear that he had been so often and so long absent from Edinburgh since he passed as advocate, that it was impossible to say that he had 'served' for five years in the College of Justice, and that, while absence rei publica causa would not have the effect of destroying a qualification once acquired, the time of such absence could not be reckoned as a part of the period necessary to constitute a qualification under the Treaty of Union. Haldane then appealed to the House of Lords, who, more subservient to the Crown than the Court of Session had been, reversed the interlocutor of the Court below, and remitted to take the appellant on trial (4 Feb. 1722-3, Robertson's Appeals, 422). A motion having been made to apply the judgment, this was met by objection being taken to Haldane's moral character. The Court allowed a proof, and it appeared that the charges against him were, first, drinking the Pretender's health; second, using bribery to secure his election as member of Parliament and as Provost of St Andrews; and third, concussion and oppression at the election of Magistrates at St Andrews in 1716, in respect he procured the apprehension, on a false charge of treason, of five deacons of trades, electors of the burgh, who were adverse to his election as Provost. The evidence, as it is given in a curious pamphlet called 'The Case of Mr Patrick Haldane, advocate,' would appear to have been strong against him; but the Court were so equally divided upon its import that, if the Extraordinary Lords had been allowed to vote, the majority would have been against the objections. An objection, however, was stated to the Extraordinary Lords voting on such a question; and the point having been referred to the King, no further steps were taken to carry out the presentation, which was accordingly allowed to fall. An Act of Parliament (10 Geo. I., c. 19) was, however, immediately passed abolishing the office of Extraordinary Lords, but limiting the |