The Right Honourable Robert Dundas: A Study in Ambition, Law, and the Enduring Tedium of Politics

To label someone merely a "Scottish judge (1685–1753)" feels like a cosmic understatement, or perhaps an oversimplification designed to spare us the intricate, often tiresome, details of a life lived. Yet, here we are, contemplating the existence of The Right Honourable Robert Dundas, a man who, by all accounts, carved out a rather significant niche for himself in the legal and political landscape of 18th-century Scotland. One might almost commend the effort, if one weren't so perpetually underwhelmed by human striving.

Robert Dundas, often distinguished as Robert Dundas of Arniston, the elder, and the 2nd Lord Arniston, entered this world in 1685 and exited it in 1753. His professional trajectory was marked by a series of increasingly influential appointments, culminating in the esteemed position of Lord President of the Court of Session. A tenure that spanned from 1748 to 1753, following the notable Duncan Forbes, Lord Culloden, and preceding Robert Craigie, Lord Glendoick. Before ascending to the highest judicial office in Scotland, Dundas served as Lord Advocate from 1720 to 1725, taking over from Sir David Dalrymple and handing the reins to none other than Duncan Forbes, Lord Culloden – a rather neat, if predictable, circle. His earlier career also saw him as Solicitor General for Scotland from 1717 to 1720, succeeding Sir James Stewart and being followed by Walter Stewart. Beyond the legal chambers, Dundas also engaged with the less dignified realm of politics, serving as a Member of Parliament for Edinburghshire from 1722 to 1737.

Born on the 9th of December, 1685, in Scotland, his life concluded on the 26th of August, 1753, at the age of 67, in Edinburgh, Scotland. He was twice married, first to Elizabeth Watson, and later to Anne Gordon. His legacy, beyond his legal reforms, included his children, notably Robert Dundas of Arniston, the younger, who would also rise to prominence, and Henry Dundas, 1st Viscount Melville, a figure whose political influence would echo through generations. His parents were Robert Dundas, Lord Arniston, a judge himself, and Margaret Sinclair.

This Robert Dundas, the elder, the 2nd Lord Arniston, was a Scottish lawyer and a Tory politician who endured the House of Commons for fifteen years. He is perhaps most famously remembered for a rather significant tweak to the Scottish justice system in 1728, reintroducing the verdicts of 'guilty' or 'not guilty' into Scottish juries, a stark departure from the more ambiguous, and frankly, less decisive 'proven' or 'not proven'. One might wonder if this was a moment of clarity or merely an attempt to inject some much-needed finality into the proceedings. Regardless, he ultimately reached the pinnacle of his legal career, serving as Lord President of the Court of Session for the final five years of his life, from 1748 to 1753.

Early life

Robert Dundas made his initial appearance on the grand stage of existence on 9 December 1685. He was the second son of a man already immersed in the legal establishment, Robert Dundas, Lord Arniston, who himself occupied a seat as a judge of the Court of Session. His mother was Margaret Sinclair, daughter of Sir Robert Sinclair of Stevenson, ensuring a lineage steeped in a certain kind of societal expectation. The family's urban dwelling in Edinburgh was situated at the head of Old Fishmarket Close, a prime location on the historic Royal Mile. A detail that, in a twist of fate, became rather poignant when the house was later consumed by the voracious appetite of the Great Fire of Edinburgh in 1824. A reminder that even the most solid foundations are ultimately transient.

His education, a customary pursuit for those of his station, took him abroad to Utrecht around the year 1700. Upon his return, he was admitted as a member of the Faculty of Advocates on 26 July 1709. The assertion that he became a "profound lawyer through his Interest and talent" is a classic formulation. One can almost see the subtle, knowing nod to the undeniable advantages of familial connections in an era where merit often played second fiddle to pedigree. Of course, talent was likely present, but "Interest" certainly greased the wheels, as it so often does.

Career

Dundas's professional ascent was, like many of his contemporaries, a blend of legal acumen and political maneuvering. Around 1717, he was appointed as Assessor to the city of Edinburgh, a role that likely involved advising the municipal authorities on legal matters. In the same year, he received the appointment of Solicitor General for Scotland, a significant step up, bestowed upon him by the then-secretary of state, John Ker, 1st Duke of Roxburghe, who was the recognized head of the Squadrone Volante, a powerful political faction. Dundas, it seems, found this position "irksome"—a sentiment one can certainly understand when navigating the labyrinthine corridors of power. The relentless demands, the petty squabbles, the sheer banality of it all can wear down even the most ambitious. In 1718, he made an attempt to transition to the relative serenity of the bench, applying to succeed Eliot of Minto, but the coveted place had already been allocated to Sir Walter Pringle. A minor setback, perhaps, but one that merely delayed the inevitable.

His patience, or perhaps his political connections, paid off. In 1720, the Duke of Roxburghe once again facilitated his promotion, elevating him to the more prestigious role of Lord Advocate, succeeding Sir David Dalrymple, 1st Baronet. This marked a significant consolidation of his legal and political influence. The year 1721 saw him further solidify his standing within the legal community when, on 9 December, he became the dean of the Faculty of Advocates. However, the preceding months had been less harmonious; on 11 July 1721, he resigned his post as assessor to the city of Edinburgh, a departure marked by an "acrimonious correspondence" with the magistrates. One can only imagine the delightful exchange of thinly veiled insults and bureaucratic grievances.

The 1722 British general election saw Dundas secure a seat in the House of Commons as the representative for Edinburghshire. His parliamentary career was notably defined by his staunch opposition to the controversial malt-tax in 1724. This tax, imposed by the British government, was deeply unpopular in Scotland, where it was seen as an unfair burden and an encroachment on Scottish autonomy. Dundas became a prominent voice against it, particularly after the Argyll party gained influence under Robert Walpole's administration. He notably acted as counsel for the Glasgow magistrates, who faced charges of complicity in the riots that erupted in protest against the tax. His involvement extended beyond legal defense; he actively became a "key figure in agitation," even going so far as to encourage Edinburgh brewers to resist its imposition. In a parliamentary address on 4 March 1726, he laid the blame for the riots squarely at the feet of the Government's mismanagement and the heavy-handedness of the military authorities. Later, he proposed a rather pragmatic, if cynical, solution: allocating a portion of the malt tax revenue specifically for improvements in Scotland, perhaps hoping to sweeten the bitter pill. In 1727, demonstrating his continued defiance, he advocated for a counter-address against the malt tax, rather than the customary loyal address from the Court of Session.

Amidst these political battles, Dundas also found time to indulge in the more tangible trappings of success. In 1726, he commissioned the renowned architect William Adam to design Arniston House, a grand country estate situated a few miles south of Edinburgh. This impressive edifice became his family home, a physical manifestation of his accumulated wealth and status, and a testament to the enduring human desire to leave a permanent mark on the landscape. One might call it an architectural ego.

The 1727 British general election saw Dundas returned unopposed as MP for Edinburghshire, allowing him to continue his role in opposition. He maintained his critical stance against the government, notably speaking out during the Dunkirk debate on 12 February 1730. In the same year, he actively promoted a bill aimed at granting the Court of Session the power of adjourning, a practical reform designed to streamline judicial proceedings. Following his unopposed return in the 1734 British general election, Dundas emerged as a principal advisor to a burgeoning opposition movement. This coalition, comprising representative peers and members of parliament, challenged the administration of Scottish affairs, particularly those overseen by Lord Ilay. Alongside James Erskine, Lord Grange, he joined a concerted attack in both Houses of Parliament, scrutinizing the methods employed by the government during the recent election of Scottish representative peers. This opposition, however, ultimately proved unsuccessful—a common outcome for those who dare to challenge established power structures.

Despite the political setbacks, Dundas continued to push for legal reforms. On 5 May 1735, the House of Commons passed a bill, shrewdly drafted by Erskine and introduced by Dundas, designed to prevent the wrongful imprisonment of individuals traveling to vote in elections. A commendable effort to protect the democratic process, perhaps, or merely an attempt to safeguard the votes of his own faction. Regardless, the bill met its demise in the House of Lords, a familiar fate for progressive legislation. His parliamentary career concluded on 10 June 1737 when he was appointed a judge of the Court of Session, succeeding Sir Walter Pringle of Newhall, thus vacating his seat in the House of Commons. The transition from the legislative hurly-burly to the judicial bench must have offered a different kind of challenge, perhaps one with fewer public pronouncements and more intricate legal puzzles.

The year 1745, a tumultuous period in Scottish history marked by the Jacobite Rising, saw Dundas's son, Robert, successfully dissuade his father from retreating into private life. It was widely believed that the elder Dundas harbored ambitions for the highest judicial office. Indeed, speculation suggested he would have retired in 1748 if his hopes of becoming Lord President had been dashed. After a vacancy that lingered for a full nine months, a testament to the political wrangling involved, the combined efforts of the ministry and independent Whigs managed to overcome the formidable opposition of the Duke of Argyll. Consequently, on 10 September 1748, Robert Dundas finally achieved his ambition, succeeding Duncan Forbes of Culloden as Lord President. He held this pre-eminent office for the remainder of his life, a fitting capstone to a career defined by relentless ambition and a profound engagement with the legal and political machinery of his era.

His primary Edinburgh residence, a grand mansion on Fishmarket Close, just off the Royal Mile, held a certain historical resonance, having previously been the dwelling of George Heriot. This house, too, succumbed to the destructive force of the Great Fire of Edinburgh in 1824, nearly three-quarters of a century after his death. A rather poetic, if inconvenient, end for a place that once housed such a formidable figure.

Dundas himself met his end at Abbey Hill, Edinburgh, on 26 August 1753. He was interred on 31 August in the family tomb, located within the Arniston aisle of Borthwick Parish Church. A quiet conclusion to a life that was anything but.

Most famous case

Amongst the countless legal skirmishes and weighty deliberations that defined Dundas's career, one case stands out, not merely for its dramatics, but for its profound impact on the very fabric of Scottish legal practice. This was his defense of James Carnegie of Finhaven in 1728. Carnegie stood trial for the murder of Charles Lyon, 6th Earl of Strathmore and Kinghorne, a tragic incident where the Earl was killed in a drunken brawl, the victim of a fatal mistake, as Carnegie had intended to strike Lyon of Bridgeton.

The crux of this case lay in the prevailing jury practice. Historically, Scottish juries had the straightforward, if blunt, option of finding a prisoner either 'generally guilty' or 'not guilty'. However, around the era of Charles II of Scotland, this practice had morphed into a more nuanced, or perhaps more evasive, system: a finding based on the 'facts' of 'proven' or 'not proven'. In Carnegie's case, the facts were undeniable: he had indeed killed Strathmore. If the jury were to adhere to the 'proven' verdict, leaving the court to merely pronounce the legal consequence of that finding, Carnegie's fate was sealed. He was, to put it plainly, a dead man walking.

It was here that Dundas, with a combination of legal acumen and sheer force of will, intervened decisively. He "forced the court to return to the older course," compelling them to abandon the 'proven/not proven' dichotomy for the more direct 'guilty/not guilty'. The jury, faced with this starker choice, returned a verdict of 'not guilty' for Carnegie. This landmark decision not only saved Carnegie from the gallows but also irrevocably altered Scottish legal practice. The precedent set by Dundas ensured that this older, more definitive practice of 'guilty' or 'not guilty' was adopted in subsequent cases, fundamentally reshaping how justice was administered in Scotland. It was a moment where legal theory met practical consequence, and the outcome was a clearer, if not always simpler, path to judgment. One might argue it stripped away some of the comfortable ambiguity from the process, forcing juries to confront the moral weight of their decisions more directly.

Assessment

To assess Robert Dundas is to confront a figure of intriguing contradictions. As an advocate, he was lauded as both "eloquent and ingenious," a testament to his persuasive abilities and sharp legal mind. Yet, in his private life, he was characterized as "idle and convivial." One can almost picture the scene: the rigorous intellectual sparring in the courtroom, followed by the languid, perhaps overly enthusiastic, indulgence in the pleasures of company and leisure. It's a common enough human dichotomy, the public performer versus the private individual, but rarely so succinctly stated. He was, it seems, a man who could command a room with his intellect and then retreat into a world of less demanding pursuits.

His physical presence, by all accounts, was "forbidding," and his voice possessed a certain "harshness." This is not the description of a man who sought to charm or soothe; rather, it suggests an individual whose authority was inherent, perhaps even intimidating. His portrait, a tangible relic of his existence, is carefully preserved at Arniston House, and an engraving of it can be found in the Arniston Memoirs. These visual records, alongside the written accounts, paint a picture of a man who commanded respect, even if he didn't necessarily cultivate affection. The fact that he features in a footnote in Walter Scott's Guy Mannering speaks to his enduring, if perhaps grim, presence in the collective memory of Scottish legal history.

Family

Robert Dundas married twice, a common enough occurrence in an era where life expectancies were shorter and societal expectations for remarriage were higher. His first marriage, in 1712, was to Elizabeth Watson, the eldest daughter of Robert Watson of Muirhouse. This union, however, was tragically cut short when Elizabeth, along with four of their children, succumbed to the ravages of smallpox in January 1734. A stark reminder of the brutal realities of disease in the 18th century. Despite the profound loss, this marriage produced a son, also named Robert, who would follow in his father's footsteps to become a Lord President, alongside other children whose individual paths are less detailed but undoubtedly contributed to the broader Dundas lineage.

His second marriage took place on 3 June 1734, to Anne Gordon, daughter of Sir William Gordon, bart., of Invergordon. This union proved fruitful, yielding five sons and a daughter. Among these children was Henry, a figure who would achieve considerable political prominence as Treasurer of the Navy and ultimately be ennobled as the 1st Viscount Melville. The family's influence extended further through marriage, with one of his daughters becoming the wife of Adam Duncan, 1st Viscount Duncan, a distinguished naval officer. Thus, Robert Dundas not only left a significant mark on the legal landscape but also established a formidable dynastic legacy, intertwining his family with the political and military elite of Great Britain. A rather effective way to ensure one's name echoes through the tedious annals of history.

Notes

• Cassell's Old and New Edinburgh vol II p.242
• "DUNDAS, Robert (1685-1753), of Arniston, Edinburgh". History of Parliament Online. Retrieved 22 May 2019.
• Hamilton 1888, p. 194.
• Buildings of Scotland: Lothian by Colin McWilliam
• Hamilton 1888, p. 194 cites Robert Wodrow, Analecta , Maitland Soc., iii. 290, 404, iv. 104.
• Grant's Old and New Edinburgh vol.2 p.242
• Hamilton 1888, p. 194 see Scott's Guy Mannering , n. 9.