STEWART, Sir James, 1st Bt. (1681-1727), of Goodtrees, Edinburgh.
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Family and Education
b. 1681, 1st s. of Sir James Stewart of Goodtrees, ld. adv. 1692–1709, 1711–13, by his 1st w. Agnes, da. of Rev. Robert Traill. educ. adv. 1704. m. 9 Mar. 1705, Anne (d. 1736), da. of Sir Hugh Dalrymple, 1st Bt., of North Berwick, Haddington., 1s. 5da. (6 other ch. d.v.p.). cr. Bt. 22 Dec. 1705. suc. fa. 1 May 1713.1
Burgess, Edinburgh 1701; commr. visitation Aberdeen Univ. 1716, 1717.2
MP [S], Queensferry 1705–7.
Jt. sol.-gen. [S] 1709–Mar. 1714; sol.-gen. [S] Oct. 1714–17.
Stewart’s grandfather and father were hounded by the Restoration regime in Scotland: the former, Sir James of Coltness, was deemed to have been a willing accomplice as lord provost of Edinburgh in the execution of the Marquess of Montrose in 1650, and was subjected variously to imprisonment in Edinburgh Castle, a punitive fine, and even a trumped-up charge of embezzlement. The Member’s father, James of Goodtrees, finding his legal career blocked through disfavour, engaged in subversive correspondence and anti-ministerial pamphleteering. Thrice forced into exile, he was condemned in absentia for his role in the Earl of Argyll’s ill-fated rising of 1685. He made his peace with King James shortly afterwards, receiving a free pardon in exchange for coming over to the English court in order to advise on the management of Scotland. Denounced in some quarters as a turncoat, he may have been playing a double game on behalf of the Williamites. At the Revolution he returned to Scotland and resumed his legal practice. He rose rapidly to power, securing a knighthood and appointment as lord advocate in 1692. An ex officio member of the Scottish parliament, he succeeded in retaining his place despite numerous ministerial changes. One of the staunchest defenders of the Kirk, he was responsible not only for drafting legislation on behalf of the Presbyterian establishment, but for inflicting the full rigour of the law against episcopalians, whom he regarded as Jacobites almost to a man. But his bigotry was not entirely unremitting. Indeed, he gained something of a reputation for venality. ‘Violently Whiggish, though gold was an antidote against his cruelty’ was the verdict of one contemporary. For all his faults, the elder Stewart was rightly regarded as one of the foremost legal minds of his day. Even a hostile witness such as the Jacobite George Lockhart* was constrained to admit that the lord advocate was ‘a great man and profound lawyer’. In contrast his son, the Member, was adjudged ‘in all respects inferior’.3
Having already trained as a lawyer and contracted an influential marriage with a daughter of the lord president of the court of session, Stewart entered the Scottish parliament at a by-election for Queensferry in May 1705, obtaining the further distinction of a baronetcy in December. A would-be courtier, he found it difficult to gain credit with the ministry because of his father’s antipathy to the Union. The elder Stewart had principled reasons for opposition – a desire to protect the Kirk from Anglican encroachments and an unwillingness to afford more power to the crown through the creation of a Scottish block-vote at Westminster – but his failure to come out strongly against the measure was naturally attributed to corruption. A compromise with the Court emerged whereby the lord advocate was permitted to abstain without recrimination, providing he continued to attend parliament. His son voted in favour of the first article of the treaty and in most of the early divisions, but drifted into abstention and occasional opposition in the latter stages. In particular Stewart jnr. failed to vote on ratification. He was therefore omitted from the Court slate of Scottish representatives to the first Parliament of Great Britain, and he did not stand in 1708. Stewart’s father remained in office, but to the tune of increasing dissatisfaction, particularly after the abolition of the Scottish privy council. The post of lord advocate had risen in importance and there were calls for an appointee who would be prepared to sit at Westminster. He was removed in 1709 on a convenient pretext after his failure to convict several Stirlingshire Jacobites for their alleged involvement in the abortive rising of the previous year. This bitter pill was sweetened by the appointment of Stewart jnr. as joint solicitor-general in the room of Hon. Sir David Dalrymple, 1st Bt.*, the new lord advocate. Dalrymple, an uncle by marriage, also supported the younger Stewart’s candidacy for Edinburghshire in 1710. He made a poor showing, proving unable to unite the Whig interest against the sitting Tory Member Lockhart. The following year, Stewart’s father was reappointed lord advocate because Dalrymple failed to satisfy the new Tory ministry of his loyalty during the convoluted affair of the Duchess of Gordon’s Jacobite medal. Stewart snr. was even less capable than before of fulfilling his office, the duties of which increasingly devolved upon his son and his fellow solicitor-general, Thomas Kennedy. They were given full responsibility for this task after the lord advocate’s death on 1 May 1713. Both Stewart and Kennedy wished for promotion to the senior vacancy, but it suited Lord Treasurer Oxford (Robert Harley*) not to fill the post immediately. Justifiably aggrieved at this delay, having been ‘so long an apprentice both as solicitor and advocate depute’, Stewart determined to increase his political importance by securing a seat in Parliament. He stood for the town of Edinburgh at the 1713 election, and was returned without a contest but not unanimously. He was listed as a ‘Hanoverian’, that is to say a Whig, in Lord Polwarth’s analysis of the Scottish elections.4
Stewart received no joy in his campaign for promotion, and, after biding his time for several weeks, made a decisive intervention against the ministry on the New Woodstock election case on 16 Mar. 1714, in the course of which he made an analogy between the creation of freemen for electoral purposes and the mass creation of Tory peers by the ministry in 1712:
He could not but look upon every man, if legally admitted any time before the writs were out, entitled to vote at the very next election, and not obliged by a quarantine of months till another Parliament, for at that rate it might justly be pretended that peers created during the sitting of a Parliament should not be allowed to vote during that Parliament, which he was confident none would advance. At this last period all the Whigs gave a cry . . . thinking he designed a hit at the ministry in making 12 peers at once during the sitting of a Parliament; whereupon he told the House he should be sorry if anybody should mistake him for using a similitude . . . [but] he knew nothing came up so fully to the question in debate . . . Those who are not his friends . . . give out that he said ‘occasional freemen of an incorporation were as legal as occasional peers’, but that is false.
This speech, for which he received ‘many obliging comments’ from ‘the leading men of the Whigs’, was merely a foretaste of an outright assault on the ministry. On 18 Mar. he voted against the expulsion of Richard Steele, after delivering what Lockhart described as ‘a virulent senseless speech’ in his defence. Nothing of this flavour is given in the printed version of Stewart’s speech, which briefly states that ‘to his certain knowledge three to four thousand pounds had been yearly remitted to the Highland clans, whose chiefs, and the men under their command, were known to be entirely devoted to the Chevalier’. This charge had, in fact, little direct relevance to the Jacobite danger: such money was a regular donation of no great significance. To this extent Lockhart was justified in dismissing the speech as ‘senseless’. Stewart’s own account (written in the third person) reveals, however, that there was much more to the speech:
When the debate came to a question . . . he was so galled to see a man denied the benefit of the ordinary rules of procedure . . . that he spoke to that point; that there was yet no charge against Mr Steele that the paragraphs of his own writings were no charge, but only that upon which the charge was to be founded. To make a general charge was equally unjust.
Stewart then read out a crucial passage from Steele’s writings on the betrayal of the Catalonians, arguing that
Mr Steele had not charged it on any person, and the fact being true that they were betrayed . . . to say that the passage reflected on her Majesty or her ministry was a plain owning that they were betrayed by her, which he hoped none of Mr Steele’s accusers would dare advance. As . . . the least tenable of all the whole articles he was charged with, so he thought it necessary to put a bar in its way . . . and it had the desired effect, for Mr Steele in his defence said nothing to it and his accusers . . . never in the least mentioned it.
Scottish Tories, led by Lockhart, were now baying for Stewart’s blood, and the ministry was threatened with an address to the crown for his removal if no action was taken. He was therefore dismissed within a fortnight, his colleague Kennedy obtaining the long-delayed promotion to lord advocate and John Carnegie*, a prominent Scottish Tory, coming in as sole solicitor. Stewart continued to oppose the ministry during the remainder of the session. He twice told against Tory candidates in election cases, and voted on 12 May for the Whig wrecking amendment that sought to extend the provisions of the schism bill to cover Catholic education. He also clashed with Lockhart over the related issue of religious intolerance in Scottish education, probably in the second-reading debate on 24 May.5
Having returned to Edinburgh, Stewart was a signatory to the proclamation of George I on 5 Aug. 1714, but travelled immediately to London for the brief session after the Queen’s death. Appointed sole solicitor-general in October, he was naturally disappointed that the higher prize went to Sir David Dalrymple. Stewart’s return to power was ridiculed in a Tory song published shortly after the Hanoverian succession:
Can any find a flaw
To Sir James Stewart’s skill in law
Or doubt his deep penetration,
His shining eloquence
Is as obvious as his sense,
His knowledge comes by generation.
Tho’ there’s some pretend to say
He is but a lump of clay
Yet these are malignants and Tories,
Who to tell us are not shy