MAKING OF THE MERCHANT COMPANY OF EDINBURGH., N. A. J. (Feb, 1895), pp.78-84.

“(NOTES FROM THE FOUNTAINHALL FOLIO.)

LORD FOUNTAINHALL, writing apparently between 1670 and 1680, took extensive notes of the progress of the movement for the erection of the Edinburgh Merchants into a Chartered Incorporation. The volume containing, amidst a great deal of other matter, his observations on that subject, with copies of many relative documents, escaped the attention of the editors of his works. It remained anonymous, and practically unused and unknown amongst the manuscript possessions of Stirling’s Library,1 Glasgow, until a few years ago, when a series of internal and decisive evidences led to the definitive establishment of its authorship.2 The existence of so valuable a contemporary memoir being undisclosed, it is not surprising that in an official account3 of the Merchant Company there is no allusion to the events and discussions dealt with in the succinct but vivid narrative, given in the Fountainhall Folio, of the long and angry contention which arose in 1661 between the merchants and the trades of Edinburgh out of the proposal by the former to constitute themselves into an incorporated society. The scheme as soon as propounded evoked the bitter hostility of the Crafts, causing a recrudescence of the old jealousies which the “Sett or Decreitt Arbitrall” of James VI. as “Odsman and Oversman” in 1583 had vainly essayed to compose forever. Lord Fountainhall, however, may be left to tell the story as far as possible himself:4

Ane accompt of the debate betwixt the merchand and 
trades of Edenborough and of the acts and other
papers that passed theirupon in 1661 and their-
after.

“In anno 1661 (the Parliament being restored to its ancient luster and then sitting) their happened great animosities between the Merchands and Crafts of Edenburgh; for their being a Committee for trade established consisting of members of Parliament, the merchands, judging this ane oppurtunitie not to be neglected for reviving their much decayed trade and the remeiding the manie insolent incroachments of the trades upon their priviledges and rights gave in the following Overtures (which yet are verie tender in relation to the saids trades) to the said Comissioners:-

“1. That for Improving of Fisching and manufactories both at home and abroad and for restraining of unfrie traders and for releiffe of the poor the merchants of Edenbrugh may be incorporat in one Society and company and may have frie meetings amongs themselfes at their oune hall for contriving and promoving the saids particulars; which Society shall consist of as many gild brether (whither merchands or others) as shall be pleased to enter and being entred shall subiect themselfes to the laws and ordors of the Companie; alwayes providing that such gild brether as be craftsmen at their entrie quit their trades and become adventorers.

“2. That all the commodities of this kingdome as can be made use of by the crafts be ather reallie or wirtuallie restrained from being caried abroad by a great Imposition.

“3. That all commodities now brought from abroad that can be made at home by our oune craftsmen; providing alwayes they make them as sufficient for the service of the liedges as they can be brought home and at as easie rates.

“Thir overtures would seime wery just and verie modest; yet such was the fatalitie of that tyme and the hotspurrednesse of James Borthwick the crafts deacon conveiner and John Milne ther old Deacon that it was firmly believed by the wholle crafts that this was nothing but a designe to overturne their priviledges and seals of cause and it was clamored to be a breach of the Sett. The toune Counsell conceaving it was incumbent for them to extinguish in tyme thir Sparks of division before they should break out in a flame and to compose the differences of their oune toune rather than to give the Parliament or its subcommittie the trouble or honor of it (call it whither of them you please) they by ane act of the Toune Counsell bearing date the 18 of January 1661 nominats John Jossie Baillie Edward Edgar dean of Gild James Borthwick chirurgian and William Carmichall glover (the provest Sir Rot Murray and Sir Wm Thomsone Clerk being alwayes Supernumerarie) with some others to meit with the merchands and hear their proposalls as to the matter of trade and to endevor a agriement and report.

“This was so far fra taking anie desirable effect that it made the differences wider, so that theirs a new act of Counsell made dated 7 febr: 1661 narrating the former and when it had tane no successe and that the Comissioners of Parliament for commerce ware pressing the matter to be heard before them theirfor recommends yet to persones to be nominat by each syde to studie to compose differences amongs themselfes without hearing and in case they could not then that the magistrats should do the same.

“Notwithstanding of all this paines their appearing no hopes of a reconcilment their was a petition given in by the merchands on the 13 of Febr: 1661 narrating all the former storie with the overtours and intreating the counsell to interpose for setling their debates conforme to the tenor of the last act: which being red on the 14 of Feb: in counsell James Borthwick showed their were some neibhours at the door that had some thing to say; which being called in compeired a promiscuous crue of merchands and crafts, amongs whom Jo: Milne presented a bill desiring to have up the merchands bill to sie and answer: who being all removed the Counsell fell in agitation if the crafts should have up the merchands bill to see or no, or if they should presently fall on the consideration of the merchands bill and their overtures and give ane answer theirto or if they sould refer it to a committee of their oune number (as before) or if whether they should not medle in it seeing its already tabled before the Parliament: upon all such quæries when the Counsell was ready to voice James Borthwick not being able to disuade them from it he rose up with the rest of the crafts in counsell and protested in name of the haill trades that their might be no voicing in that businesse being a thing that so nearlie concerned the liberties of the trades and theiron asked instruments: Immediately also Baillie Jossie protested in name of the Counsell that the major part of the Counsell might proceid in that busines as verie competent to them to voit in and give their answer: Then James Borthwick with the remanent Deacons and Counsellers of crafts removed out of doors and the Counsell being the major part went to voycing and fand it fit to leive it to the Parliament. Upon all which the premises their was ane act of Counsell made dated the 14 of Februar 1661.

“Nixt day being the 15, Counsell being met, it was moved by the Provest what could be the reason of the crafts their retiring out of counsell the day before and if they had a negative voice in Counsell yea or no, or if the remanent major part of the Counsell might not voyce in their absence which questions be such as could not be decided by the Counsell themselfes if theirfor they thought it not meit that a bill should be drawen in name of the Counsell to the Parliament that the Counsell may be clear as to thesse questions in all tymes coming: Then it was voyced whither to give in the bill that afternoon or to leave it till Monday (this 15 being friday) yet at the desire of the crafts and on hopes of aggriement it was delayed till Monday being the 18.”

But we must now condense. When Monday the 18th came parties were as far as ever from agreeing. A Supplication was lodged by the minority against the merchants’ bill as “dipping on the liberties of their crafts.” They were only 8, the merchants were 17; it was unfair to vote in such a matter of “fundamentall rights” especially when sub judice in Parliament. Therefore following the lead of James Borthwick who was deacon of the “chirurgians,” the crafts protested “in a most tumultuarie and disorderly way.” Bailie John Boyd, on the other hand, “protested against all their protestations” for the liberty of the Council, the majority of which ultimately referred the controversy for the decision of Parliament. Accordingly the case was stated to the Legislature by the Council, and 30 closely written pages of the Folio are filled with copies of Supplications, Answers, Observations and Reasons, all more or less vehement, acrimonious pleadings.

In their initial Supplication to Parliament the Council incidentally complain that although such meetings of craftsmen have been declared hurtful to the country as savouring of sedition yet the Crafts habitually convocate at the Magdalen Chapel5 and hold seditious conventicles contrary to law. In answer to this the Crafts deny the illegality. Their meetings, which have the sanction of reason, necessity, and continual custom are not illegal, because not tumultuous. No disorder or mutiny has ever arisen from them “unles ther ryseing upon the 17 day of authoritie can be construed to be ane mutinie though recordit in historie as ane signall testimonie of the loyaltie of the crafts of Edinburgh.”6

On the main proposition – the proposal to establish a Company of the Merchants of Edinburgh – the argument to be gleaned from the voluminous documents is full, vigorous, and instructive. Curiously enough our author, whilst apparently in sympathy with the case for the Merchants, yet (reversing the stout old reporter’s rule never to give the Whig dogs the best of the argument) quotes only the pleadings for the other side. Luckily they recapitulate the statements which they answer, and thus give a good idea of the course of the debate. From the moment of the presentation of the initial Supplication to Parliament Lord Fountainhall’s comments on the controversy cease, except for a single marginal note. He contents himself with copying the pleadings for the Crafts. These have no dates.

The first contention of the Merchants or Town Council for the establishment of the Company is that the want of Societies occasions low prices of commodities abroad, for merchants without foreign correspondence, fearing to be undersold, lower their prices. Witness, say they, “the Salmond trade, now decayed, though once the goldin myne in the Kingdome.” The Crafts reply: – Persons who wish may form voluntary Societies, but a Society on the lines proposed, destructive of other people’s liberties, is against all reason, and without a parallel. The governors of such a Company would be masters of the town. Besides, the flourishing and decay of trade depend not on Companies, and the merchants’ own instance shews that, when there was no Company, the Salmond trade “wes one of the goldin mynes of the nation.”

The second argument and the reply to it are remarkable as a forestalling in the seventeenth century of one of the aims of a certain Imperial Institute in the nineteenth, and they remind one of certain criticisms current during its inception also. “The great misterie of trade” (say these merchants of the Scottish capital when Charles II. was King) “consistes in correspondence abroad and information how pryces reules, which cannot be maintained bot at a grater expenss then any privat stock can furnish.” The reply is decidedly pithy: – “The said reasone does not evince the necessitie of Societies to be erected be authority, and the Gentlemen if they think fitt upon that and ther own pretences May Joyne in voluntar companies and societies… to that or any other end.”… “The trade of this Kingdome being not to remote countryes bot to france and spaine and others within Europe. It is notour that the information as [to] the price and rates of Comodities may and is daylie given be factors und correspondents without great expenss.”

Another contention of the Company was the desirability of some such body of judicious merchants to promote useful public measures. To this the neat rejoinder is made that the convention of royal burghs was instituted for that very purpose.

Lastly, the merchants argue that the Company will maintain the honour of the nation, and serve as an excellent seminary for the breeding of youth. This (sarcastically retort the Crafts) is an averment so general that it neither needs nor admits of answer, and they allege that, on the contrary, the Company would prove the destruction of trade and a seminary of monopolies.

It appears from a note on the margin of the Folio7 that Parliament conceded the claim of the Council to decide by the vote of a majority. This, says Lord Fountainhall in that note, “in my opinion was a very considerable stroak to the Trades.” How matters progressed further before Parliament or its Committee he does not say, but we know that ultimately the Merchant Company of Edinburgh, though with a constitution differing from that originally proposed, was incorporated by Royal Charter8 in 1681, and the records of Parliament shew that when the Charter was confirmed in 1693 the Trades9 were still protesting.

N. A. J.”

1 It is catalogued as “No. M20628. Manuscripts: Historical Papers relating to Scottish affairs in the sixteenth and seventeenth centuries.”
2 See article in the Scotsman, 3rd November, 1888. *
3 Historical Notes as to the Merchant Company of Edinburgh, by A. K. Mackie, Edinburgh: Private press of Peter Lawson & Son, 1862.
4 The passages cited in this article occur on ff. 37 et seq. Of the third part (“Number 3”) of the Fountainhall Folio MS. referred to supra.
5 A building still well known, situated in the Cowgate.
6 A famous tumult (“ane uproar,” Pitscottie, p. 577, calls it, “betwixt the King and the Kirk”), described vigorously in Birrel’s Diary; also in most histories. See Spotswood, Hist. Of Church of Scot. (ed. 1655), p. 428. Tytler iv. 253.
7 “Number 3,” fo. 40.
8 The text of the Charter is quoted in Mr. Mackie’s Historical Notes before referred to; pp. 8-11.
9 Acts Parl. Scot. ix. 334.
* The Scotsman, Saturday, 3rd November, 1888
“MARGARET, LADY YESTER, AND HER 
17TH CENTURY BIOGRAPHER 

_____ 

IF the underwritten transcript from a seventeenth century manuscript, which has long been in Stirling’s Library in Glasgow, now appears in print for the first time, it will command an appreciative perusal. It contains a sketch of the life, a catalogue of the charities, and a copy of the epitaph of that Lady Yester whose memory is perpetuated in the name of one of the churches in Edinburgh. Her munificence might well have warranted the bestowal upon her of the epithet “Lady Bountiful,” and it is little wonder that in the second half of the 17th century, whilst her memory was still fresh, the industrious compiler of “A Perfect Inventar of all the pious donationes since the dayes of King Ja: the first,” when at the close of his compilation he came to record Lady Yester’s charitable gifts, departed from his rule of merely cataloguing bequests, and wrote a brief but comprehensive and generous biography:- 
MORTIFIC’ONE BE DAME MARGARET KER, LATE 
LADY YESTER. 
The sd. Dame Margaret Ker wes þe oldest dauchter of Mark Comendator of Newbatle ane of þe Lords of counsall and sessione þereftir E: of Louthean, procreat betwixt him and […] Maxwell ane dauchter of John Lord Herries. […] In her young yeirs She wes ffirst married be John Lord Hay of Yester And by her wise and wertuous governmt She wes instrumentall in preserving and Improveing þe sd Estate by him She had two sones Lord Hay of Yester þereftir E: of Tweddale and Sr Wm her second sone, for qm She purchased þe barronie of Linplum Her daughter Lady Margaret Hay wes first married to Alexr E: of Dumfermling Chancellor of Scotland And eftir his death wes married to James E: of Calendar The sd Dame Margaret Ker having Lived many yeirs a widow She married Sr Andro Ker yonger of ffairniebirst and procured his father to be made Lord Jedburghe besydes þe many buildings yairds and parks made be hir in all places belonging to her husband in evry parish qr athr of her husbands had any reule She Erected and built hospitalls and Schools ffirst in Dumbar besyde þe castle of Beltoune eftir She had Repaired þe castle of Beltoune as appears by this distich wrin in great Lres wrin upone stone round about þe toure 
Mænia cuncta mihi cedat manus æmula cara 
fforma et materia est Margaris una mihi. 
[I yield to the walls of the hands of rival dear
the form and the matter is Margaris one said to me.]

 

1. Neir to þe sd place of Beltoune She builded ane ffour squaired hospitall for 8 aged men qch house since decayed þe mantaineing þerof wes not her fault.

 

2. In þe parish of Baro She Repaired þe Kirk wtout decently And in þe same parish at Duncanlaw built ane hospitall for sex aged women and gave þem mantainance. 

 

3. She Repaired Sevll hie wayes and bridges betwixt Baro and Hadingtoune. 

 

4. In the parish kirk of Lin neir Peebles She built ane Schoole and hospitall and mortified towards þe mentainance þerof 1000 lib. Scots 

 

5. To þe Schoole of Peebles She mortified 500 mks to be Imployed on al. Rent. 

 

6. She mortified to þe Schoole of Jedburt 500 mks 

 

7. She builded and Repaired þe ruinous castle of ffarnihirst belonging to her second husband. 

 

8. In Oxname parish belonging to her sd husband She built ane Schoole and hospitall and mortified to each ane of þem 500 mks. 

 

9. In þe parish of Hopkirk on þe water of Reull qr by reason of þe trubles on þe borders þer had nevir been any breeding of þe youth in Learing She built a Schoole and mortified yert 1000 mks. 

 

10. In þe toune of Haddin in þe parish of Sprowstoune in þe east border She built ane Schoole and mortified a compt sellarie for a Schoolemr. 

 

11. At Edr She bought and repaired a great Lodging upone þe South of þe high Street neir þe Netherbow And mortified out of þe same ane yeirlie al. rent of 200 mks for help to þe poor in þe hospitall besyde þe colledge kirk yr And þereft haveing Resolved to bestow þe sd Lodgeing wt þe haill furniture þerin to Jon now Erle of Tweddeall her oy by consent of þe toune counsall minister and kirk Sessione She redeemed þe sd Lodgeing and fred it by payt of 2000 mks And left þe same burdened only wt 40 mks yeirly. 

 

12. Towardes þe building of þe trone kirk in Edr She gifted 100 mks. 

 

13. She built a kirk neer to þe hie Schole in Edr And bestowed toward þe building þerof 1000 lib wt 5000 mks for þe use of þe minister at þe sd church And a Litle befor her death She caused Joyne þerto ane Little Isle for þe use of þe minister wher she Lyes interred into ane Tomb in þe wall wt this inscrip’ne 
It is needles to erect a marball Tomb, 
The dayly bread vat for þe hungry womb. 
And bread of Lyfe thy bounty hath provydit, 
ffor hungry Soules all tymes to be divydit 
Wold Lasting monuments shall reare 
That shall Endure till Chryst himselfe appeare. 
Pos’d wes her lyfe prepared her happy end, 
Nothing in either wes wtout comend. 
Let be the Care of all vat Live heireftir 
To Live and dye like Margaret Lady Yester. 
Who departed þis Lyfe at Edr 15 March 1647 aged 75. 
Mors patet hora Latet Spes altera vitæ. 
And upone her throwgh Stone neir þerto is this Inscription following:-  
Hic Jacet Margareta Ker filia Marci comitis de Louthian maritata primo D: Jacobo Hay de Yester Eo defunto D: Andreæ Ker Juniori de Jedburgh quæ postquam in templa hospitalia Scholas et alios pios usus hic et alibi munifiventissime Expedisset ædem vicinam cultui divinis suis sumptibus Extrui Curavit et 2000 mercas pro structura ædis et Salario Ministri Ejusdem Impendit Obiit 15 Martij, ætatis 75. 
[Here lies Margaret Ker, daughter of Mark count of Louthian first married D: James Hay of Yester then D: Andrew Ker younger from Jedburgh After the temples, hospitals schools and other religious uses this and other nearby temple to worship God in their glorious provisions and costs extra [Curavit] 2000 marks for the building of the temple and  ministers salary the same charges Died 15 March, at age 75.] 
Cara homini mage Cara deo Jacet inclita Cara, 
Margaris hoc tumulo quam tegit urna brevis. 
Tu viciorum hostis Cultrix virtutis alumna, 
Pauperis et vitæ norma severa probæ 
Mensa patens cunctis, sine Luxu splendida vita, 
Ara domus miseris area benigna pijs. 
Condere templa deo quoniam tibi seria Cura 
Nunc colis Ætherij Lucida templa Poli. 
One or two clerical errors are apparent, but the transcript is literal. The mural inscription referred to as having been cut on Belton Castle has an obvious pun on Margaris – a double-barrelled word meaning both “Margaret” and “Pearl,” and thus lending itself to complimentary purposes. In the fifth line of the epitaph “Moir” might be suggested in lieu of “Wold” – which, however, is “Wold” unmistakeably in the original writing. 
The question of the authorship naturally arises simultaneously with that of the date, character, and history of the manuscript. It was part of Mr Walter Stirling’s original bequest at the foundation of the library which he gave to his native city in 1791. So I am informed by my excellent friend, Mr Thomas Mason, the librarian, to whom my warmest thanks are due for facilities and assistance in examining this book, which there is reason to think was once in the collections of Wodrow, the unwearied recorder of the struggles of the Scottish Church. It is a large volume bound in calf, and containing 756 foolscap pages of stout paper, 12½ inches long by 81/4 broad. Many leaves are impressed with water-marks, the commonest of which are variant forms of the fool’s cap – a jester’s head, with bells radiating from the neck. This stands upon a line rising from three balls disposed pyramidically. But the mark, in many instances, is the printed word “RONDE;” whilst in one or two cases it is P.C. The book is in three parts bound together, but paged separately, written in three distinct hands, two of which appear to be those of clerks or copyists. The third, a small, neat, hand is the autograph of the compiler. 
Part I. is a collection of papers on the history of the Church in the troublous time between 1637 and 1639. This is one of the copies of a compilation, supposed by some to be the work of John Earl of Rothes, as the foundation of his “True Relation.” Several other copies are known; one belongs to the Church of Scotland, other two are in the Advocates’ Library. The second part consists of the “Perfect Inventar” of pious donations. It is written by one of the clerks or copyists except a few marginal notes by the compiler himself. It could only have been put together by a man who had access to the Register of the Great Seal down to 1539. There are internal reasons for suspecting that the first part of it may be a copy from a prior writing, and that only the later entries, including that quoted above, are the original work of the writer of this manuscript. It is the third part which is of the most varied interest and value. Law, history, foreign affairs, and political economy all have their turn. It comprises a copy of the statutes of Heriot’s Hospital in 1627, the laws and “articles of warre” for Scotland in 1667, and a 60-page narrative of the great controversy which raged between the merchants and the trades of Edinburgh for a number of years after the Restoration. In this last a footnote approximately fixes its date. Appended to a copy of the “Sett or Decreitt Arbitrall” pronounced by James VI. in 1583 for the settlement of disputes between the merchants and the trades, the writer makes the following caustic comment:-
“I have oft wondred at the confounded and unclear conception of this decreitt arbitrall unles it be, as Polano Suave observes of the decries of the Synod of Trent that they ware oft made generall and ambiguous of purpose to please both parties; but the customs and practise of 90 yeirs now elapsed since the sd Sett hes explained the doubts that naturally did arise from the same.”
This must have been written about 1673, but other documents show that the compiler was still writing in 1684. This miscellaneous third part is sufficiently curious. It casts a flood of light on the origin of the Edinburgh Merchant Company, and the narrative includes a lively account of the outbreak of the merchants’ ‘prentices in November 1664, when, after “a great garboyll for ane hower or 2,” they were only dispersed by “some castle sojers,” not without bloodshed. The soldiers attacked a few recalcitrant apprentices, and “one was killed, a poor young man, but who fought very resolutely: and 2 was taken a baxters boy and a taylors who ware both processed for their life and most vigorouslie pershued by the King’s Advocat.” It contains also a report of two remarkable speeches; one, and election oration in 1673, is duly enforced in the manner of the time by clinching arguments from Neheiah, and by a harrowing parallel between Edinburgh and Jerusalem – the other, delivered in Parliament in 1670, contends against a proposed alteration in the coinage on grounds deduced from Job and Jeremiah. Edinburgh readers would peruse with some amusement a “platforme” for sanitary reform in the city. It includes this:- “Item, Stablers wold not be permited to gather ther muck within ther closes and then  to lay it out upon the high street as they do.”
Enough of the manuscript – what of its author? The volume contains a considerable number of decisions in the Court of Session, it has some styles of writs and several brief articles on points of law, it contains elaborate disquisitions on the Commissary Court, it cites Justinian, Craig de Feudis, and “Balfour his Practiques,” and no less than ten pages are devoted to “Ane alphabeticall abridgment of the severall wryts contained in a certain stylebook.” These circumstances make it certain that the work is a lawyer’s. Whoever he was, he speaks as one who knew the contents of the Advocates’ Library, he must have had access to the papers of Heriot’s Hospital and to the records of the Town Council of Edinburgh, and his remarks display a close acquaintance with the history of the city. That he was an Edinburgh advocate seems, on these facts, all but certain, especially when his incidental mention of his other volumes is considered. Once he refers to “the other manuscript,” he cites a patent to the wine merchants as “in my folio law manuscript A 13 at 29 of August 1684;” he alludes, apparently concerning a bill of suspension, to “my collection of practiques, num: 161;” and on his fast page, in a marginal note regarding the public debt, he quotes “my extracts of the books of sederunt at the 26 of february 1656.”
This is a not insignificant body of facts towards identification of this advocate who flourished from 1673 to 1684, and of course before and after, making, like all his brethren of the bar at that time, his “practicks” and styles and decisions, but studying history the while. His date is not that of the better known writers of “practicks” and makers of historical collections. It was too late for Balfour of the “Annals,” or for Sir R. Spottiswood or Sir T. Hope of the “Practicks” and “Minor Practicks.” Stair it certainly was not; and his son Sir James Dalrymple’s published works, do not embrace the period covered byt he collections of this as yet unknown author. Doubtless others of his MSS. survive in Edinburgh. Who was he? That is the question. When the foregoing lines were penned I had not yet had an opportunity of making a comparatio literatum of certain manuscripts in the Advocates’ Library, and could only indicate my strong suspicion that the writer was Sir John Lauder, Lord Fountainhall, whose labours illustrate so much of the history and law of the latter half of the 17th century. Having now made an examination of the voluminous writings of that distinguished Judge, I conclude by simply stating that the Glasgow manuscript is unquestionably his.” 

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