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Significant Scots
Henry Home

Henry HomeHOME, HENRY (LORD KAMES,) a lawyer and metaphysican, son of George Home of Kames, was born at his father’s house in the county of Berwick, in the year 1696. The paternal estate of the family, which had once been considerable, was, at the period of the birth of the subject of this memoir, considerably burdened and reduced by the extravagance of his father, who appears to have pursued an easy hospitable system of living, unfortunately not compatible with a small income and a large family. With the means of acquiring a liberal education, good connexions, and the expectation of no permanent provision but the fruit of his own labours, the son was thrown upon the world, and the history of all ages has taught us, that among individuals so circumstanced, science has chosen her brightest ornaments, and nations have found their most industrious and powerful benefactors. In the earlier part of the last century, few of the country gentlemen of Scotland could afford to bestow on their children the expensive education of an English university, and an intuitive horror at a contact with the lower ranks, frequently induced them to reject the more simple system of education provided by the universities of Scotland. Whether from this or some other cause, young Home was denied a public education, and received instructions from a private tutor of the name of Wingate, of whose talents and temper he appears to have retained no happy recollection. The classical education which he received from this man appears to have been of a very imperfect description, and although on entering the study of his profession, he turned his attention for some length of time to that branch of study, he never acquired a knowledge of ancient languages sufficiently minute to balance his other varied and extensive acquirements. Mr Home was destined by his family to follow the profession of the law, the branch first assigned him being that of an agent. He was in consequence apprenticed to a writer to the signet in the year 1712, and he continued for several years to perform the usual routine of drudgery, unpleasant to a cultivated and thinking mind, but one of the best introductions to the accurate practice of the more formal part of the duties of the bar. The ample biographer of Home has detailed in very pleasing terms the accident to which he dates his ambition to pursue a higher branch of the profession than that to which he was originally destined. The scene of action is represented as being the drawing room of Sir Hew Dalrymple, lord president of the court of session, where Home, on a message from his master, finds the veteran judge in the full enjoyment of elegant ease, with his daughter, a young beauty, performing some favourite tunes on the harpsichord. "Happy the man," the sentimental youth is made to say to himself, "whose old age, crowned with honour and dignity, can thus repose itself after the useful labours of the day, in the bosom of his family, amidst all the elegant enjoyments which affluence, justly earned, can command! such are the fruits of eminence in the profession of the law!" If Home ever dated his final choice of a profession from the occurrence of this incident, certain praises which the president chose to bestow on his acuteness and knowledge of Scottish law, may have been the part of the interview which chiefly influenced his determination.

Having settled the important matter of his future profession, Mr Home applied himself to the study of the laws, not through the lectureship which had just been established in Edinburgh for that purpose, but by means of private reading, and attendance at the courts. He seems indeed to have entertained an early objection to the discipline of a class-room, and to have shown an independence of thought, and repugnance to direction in his mental pursuits, which have been by some of his admirers laid down as the germs of that originality which his works have exhibited. Perhaps the same feeling of self-assurance prompted him in the year 1723, to address a long epistle to Dr Samuel Clarke, "from a young philosopher," debating some of that learned divine’s opinions on the necessity, omnipotence, and omniscience of the Deity. A very concise and polite answer was returned, for the brevity of which the writer excuses himself, "as it is according to his custom, and the time allowed him for such matters." No encouragement was given to continue the correspondence, and the application was not repeated. He appears at the same time to have maintained a conference with Mr Andrew Baxter, on certain points of natural philosophy; but that gentleman finding it impossible to bend the young philosopher’s mind to the conviction, that motion was not the effect of repeated impulses, but of one impulse, the effect of which continues till counteracted, (the doctrine generally received by the learned world,) seems to have lost all proper philosophical patience, and given up the controversy in a fit of anger.

Mr Home put on the gown of an advocate in the year 1723, when there were, as there ever will be in such institutions, many eminent men at the Scottish bar; but although many were respectable both for their talents and integrity, it could not be said that more than one revered individual, Forbes of Culloden, was justly illustrious, for a distinguished display of the former, or an uncompromising and undeviating maintenance of the latter quality. The baneful corruptions of family and ministerial influence, which had long affected the court, ceased to characterize it: but their shadows still hovered around their former dwelling-place, and many curious little private documents on which the world has accidentally stumbled, have shown that the most respectable guardians of justice, have not administered the law uninfluenced by some of those little worldly motives which affect a man in the management of his own affairs. From the period when Mr Home commenced his practice at the bar, he seems to have for a time forgot his metaphysics, and turned the whole of his discriminating and naturally vigorous intellect to the study of the law; in 1728 he published the first of his numerous works, a collection of the "Remarkable Decisions of the Court of Session," from 1716 to 1728, a work purely professional, which from the species of technical study being seldom embodied by an author so comparatively youthful, seems to have attracted much attention from the court and the leading lawyers of the time. It is probable that the hue and arrangement given to the pleadings, now the chief defect of that compilation, may have rendered it at the time it was published attractive from the originality of the method. A small volume of essays "upon several subjects in Scots Law," which he published four years afterwards, afforded more scope for ingenuity and refinement of reasoning than could possibly be infused into other men’s arguments; and in the choice of the subjects, and the method of treating them, full advantage has been taken of the license. Such of the arguments and observations as stood the test of more mature consideration, were afterwards embodied by the author in one of his more extensive popular law books. Mr Home seems to have been one of those gifted individuals who could enjoy hilarity without dissipation, and gayety without frivolity. In early life he gathered round him a knot of familiar and congenial spirits, with whom he enjoyed the fashionable and literary society of Edinburgh, then by no means despicable as a school of politeness, and just dawning into a high literary celebrity. Hamilton of Bangour, Oswald, and lord Binning, were among his early and familiar friends, and though he soon extended to more gifted minds the circle of his philosophical correspondence, an early intercourse with men so refined and learned must have left a lasting impression on his susceptible intellect.

In 1741, at the prudent age of forty-seven, Mr Home married Miss Agatha Drummond, a younger daughter of Mr Drummond of Blair, in Perthshire, a lady of whom we hear little, except that he had a turn for quiet humour, and that she perplexed her husband’s economical principles by an inordinate affection for old china, being in other respects generally reported to have been a prudent and docile wife. In 1741, Mr Home published the well known Dictionary of the Decisions of the Court of Session, afterwards continued and perfected by his friend and biographer, lord Woodhouselee; a very laborious work, and of great practical utility, though now superseded by the gigantic compilation of Morison, and the elaborate digest of the late Mr Brown. During the rebellion of 1745, the business of the court of session was suspended for eleven months, and those lawyers whose minds were not engaged in the feverish struggles of the times, had to seek some occupation in their retirement. Mr Home seems at no time to have busied himself in active politics, excepting such as came within the range of his judicial duties -- and the early predilection of his family to the support of the Stuart dynasty, may have been an additional motive for his preserving a strict neutrality during that disorderly period. In the midst of his retirement, he gathered into a few short treatises, which, in 1747, he published under the title of "Essays upon several subjects concerning British Antiquities," some facts and observations intended to allay the unhappy differences of the period, although it is rather doubtful whether the Highlanders or their intelligent chiefs found any solace for their defeat and subjection to the laws, in discussions on the authority of the Regiam Majestatem, or nice theories of descent. The subjects discussed are of a highly useful and curious nature; and had the author brought to the work an extensive collection of facts, and a disposition to launch into no theories but such as his own good sense dictated to be applicable and sound, the country might have had to thank him for a just and satisfactory account of her ancient laws and customs, and the rise of the constitution, which the talent of her bar has not yet produced. But these essays are brief and desultory, the facts are few and paltry, and the reasoning fanciful and unsatisfactory. The arguments against "the Hereditary and Indefeasible Right of Kings," if they ever produced any good effect, would certainly constitute a proof that the human mind, as exhibited in any arguments which might be used by his opponents, was then more perverted by prejudice, than it is generally believed to have been in any civilized country. To the truisms contained in that essay, the refinements on hereditary descent form a curious converse; where the feudal system has its origin from the tendency of bodies in motion to continue in a straight line, and the consequent tendency of the mind to pursue its objects in a course equally direct, which proves that, "as in tracing out a family, the mind descends by degrees from the father first to the eldest son, and so downwards in the order of age, the eldest son, where but one can take, is the first who presents himself."

The next production of Mr Home’s pen, was one of a nature more congenial to his habits of thought:—in 1751, he published "Essays on the Principles of Morality and Natural Religion." One of the grand leading aims of this work, is the maintenance of innate ideas, or principles of right and wrong, in opposition to the opinions of Locke and Hume. After the clear logical deductions of these great men, the duty of an opponent was a task of difficulty; while it is at the same time generally allowed by both parties in this grand question, that the view adopted by lord Kames, while it agrees more happily with the general feelings of the world, cannot bear the application of the same chain of clear and subtle reasoning which distinguishes the position of his antagonists. Like too many of the best works on metaphysics, the Essays on Morality give more instruction from the ingenuity of the arguments, and the aspects of the human mind brought before the reader in the course of deducing them, than in the abstract truths presumed to be demonstrated. It has been frequently noticed, to the prejudice of most of the works of the same author, that, instead of arranging his arguments for the support of some general principles, he has subdivided his principles, and so failed to bring his arguments to a common point. The failing, if characteristic of lord Kames, was not unusual at the period, and is one which time, and the advantage of the labours of previous thinkers, tend to modify;—in the work we are just considering, the line of argument maintained bids defiance to the adoption of any one general principle, while much confusion is prevented, by the author having given a definition of what he understands those laws of nature to which he refers our consciousness of good and evil to consist of. Although the author in the advertisement avows the purpose of his work to be "to prepare the way for a proof of the existence of the Deity," and terminates the whole with a very pious and orthodox prayer, he had the fortune to bring the church of Scotland like a hornet’s nest about him, on the ground of certain principles tending to infidelity, which some of its active adherents had scented out in his arguments. A zealous clergyman of the name of Anderson published, in 1753, "An Estimate of the Profit and Loss of Religion, personally and publicly stated; illustrated with references to Essays on Morality and Natural Religion;" in which the unfortunate philosopher is treated with no more politeness than the opponent of any given polemical disputant deserves. This blast of the trumpet was followed up by an "Analysis" of the same subject, "addressed to the consideration of the church of Scotland;" and the parties rousing themselves for battle, the hand of the respected Dr Blair, stretched forth in moderation of party rancour, and defence of his esteemed friend, protracted but did not prevent the issue. A motion was made in the committee for overtures of the General Assembly, "How far it was proper for them to call before them, and censure the authors of infidel books." After a stormy debate the motion was lost, but the indefatigable Mr Anderson presented in name of himself and those who adhered to his opinions, a petition and complaint to the presbytery of Edinburgh, praying that the author of the Essays on Morality, &c. might be censured "according to the law of the gospel, and the practice of this and all other well governed churches." Defences were given in, and the petitioner obtained leave to reply, but before the matter came to a conclusion he had breathed his last, and the soul of the controversy perishing along with him, lord Kames was left to pursue his philosophical studies unmolested. The chief subject of this controversy, may be discovered in the curious and original views maintained by the author of the essays, on the subject of liberty and necessity. Full freedom to the will of mankind he maintains to be in opposition to the existence and operation of a Deity, who prejudges all his actions, and has given him certain motives which he cannot avoid following; while, to preserve common uniformity with the doctrine of an innate sense of right and wrong previously maintained, the author is obliged to admit that man must have a consciousness of free-will, to enable him to act according to that innate sense: he therefore arrives at a sort of intermediate doctrine, which may be said to maintain, that while the will is not in reality free, it is the essence of our nature that it should appear to us to be so. "Let us fairly own," says the author, "that the truth of things is on the side of necessity; but that it was necessary for man to be formed with such feelings and notions of contingency, as would fit him for the part he has to act." "It is true that a man of this belief, when he is seeking to make his mind easy after some bad action, may reason upon the principles of necessity, that, according to the constitution of his nature, it was impossible for him to have acted any other part. But this will give him little relief. In spite of all reasonings his remorse will subsist. Nature never intended us to act upon this plan: and our natural principles are too deeply rooted to give way to philosophy." * * "‘These discoveries are also of excellent use, as they furnish us with one of the strongest arguments for the existence of the Deity, and, they set the wisdom and goodness of his providence in the most striking lights. Nothing carries in it more express charactors of design; nothing can be conceived more opposite to chance, than a plan so artfully contrived for adjusting our impressions and feelings to the purposes of life." The doctrine may appear at first sight anomalous; but it displays equal ingenuity in its discovery, and acuteness in its support, and is well worthy of the deepest attention. A certain clergyman of the church of Scotland is said to have seen in this theory an admirable exposition of the doctrine of predestination, and to have hailed the author as a brother; and certainly a little comparison will show no slight analogy betwixt the two systems; but other persons thought differently, and the reverend gentleman was superseded. These fiery controversies have carried us beyond an event which served to mitigate their rancour—the elevation of Mr Home to the bench of the court of session, where he took his seat in February, 1752, by the title of lord Kames; an appointment which, as it could not be but agreeable and satisfactory to the learned and ingenious, seems to have met the general concurrence and approbation of the common people of the country. Arguing from the productions of his pen, no one would hesitate to attribute to lord Kames those qualities of acuteness, ingenuity, and plausible interpretation, necessary for the acquirement of distinction and success at the bar—but that he was characterized by the unprejudiced and unwavering uprightness of the judge, whose conclusions are formed less on finely spun theories and sophisms than on those firm doctrines of right and wrong which can form a guide alike to the ignorant and the learned, would seem questionable, had we not the best authority to believe, that his strong good sense, and knowledge of justice, taught him as a judge to desert, on most occasions, the pleasing speculations which occupied his mind as a lawyer. "He rarely," says Tytler, "entered into any elaborate argument in support of his opinions; it was enough that he had formed them with deliberation, and that they were the result of a conscientious persuasion of their being founded on justice, and on a fair interpretation of the laws." Unfortunately there are some exceptions to this general characteristic; refined speculation seldom entirely deserts its favourite abode, and in some few instances lord Kames was a special pleader on the bench.

In 1755, lord Kames was appointed a member of the board of trustees, for the encouragement of the fisheries, arts, and manufactures of Scotland, and likewise one of the commissioners for the management of the annexed estates, on both of which important duties it would appear he bestowed the attention his ever active mind enabled him to direct to many different subjects. In the midst of his varied judicial and ministerial labours, two legal works appeared from the pen of lord Kames. "The Statute Law of Scotland abridged, with Historical Notes," published in 1759, was never known beyond the library of the Scots lawyer, and has now almost fallen into disuse even there. "Historical Law Tracts," published in 1757, was of a more ambitious sort, and acquired something beyond professional celebrity. The matters discussed in this volume are exceedingly miscellaneous, and present a singular mixture of "first principles" of morality, metaphysics, &c., and Scots law. The author has here displayed, in the strongest light, his usual propensity for hunting all principles so far back into the misty periods of their origin, that, attempting to find the lost traces of the peculiar idea he is following, he pursues some fanciful train of thought, which has just as much chance of being wrong as of being right. "I have often amused myself," says the author, "with a fanciful resemblance of law to the river Nile. When we enter upon the municipal law of any country in its present state, we resemble a traveller, who, crossing the Delta, loses his way among the numberless branches of the Egyptian river. But when we begin at the source, and follow the current of law, it is in that case no less easy and agreeable; and all its relations and dependencies are traced with no greater difficulty than are the many streams into which that magnificent river is divided before it is lost in the sea." If the philosopher meant to compare his searches after first principles to the investigation of the source of the Nile, the simile was rather unfortunate, and tempts one by a parody to compare his speculations to those of one who will discover the navigability or fertilizing power of a river, by a confused and endless range among its various sources, when he has the grand main body of the river open to his investigations, from which he may find his way, by a sure and undoubted course, to its principal sources, should he deem it worth his while to penetrate them. This work exhibits in singularly strong colours the merits and defects of its author. While his ingenuity has led him into fanciful theories, and prompted him to attribute to the actions of barbarous governments subtle intentions of policy, of which the actors never dreamed, it has enabled him to point out connexions in the history of our law, and to explain the natural causes of anomalies, for which the practical jurisconsult might have long looked in vain. The history of criminal jurisprudence is a prominent part of this work. The author attempts to confute the well founded theories of Voltaire, Montesquieu, and many others, tracing the origin of punishment, and consequently the true principles of criminal jurisprudence, from the feelings of vindictiveness and indignation inherent in human nature when injured,—a principle we fear too often followed to require a particular vindication or approval. We cannot pass from this subject without attracting attention to the enlightened views thrown out by lord Kames on the subject of entails, views which he has seen the importance of frequently repeating and inculcating, though with many others he spoke to the deaf adder, who heeded not the wisdom of his words. He proposed the entire repeal of the statute of 1685, which, by an invention of the celebrated Sir Thomas Hope, had been prepared for the purpose of clenching the fetters of Scots entails, in a manner which might put at defiance such efforts as had enabled the lawyers of England to release property from its chains. But the equity of the plan was shown in the manner in which the author proposed to settle the nice point of the adjustment of the claims on estates previously entailed. The regulations enforced by these he proposed should continue in force in as far as respected the interests of persons existing, but should neither benefit nor bind persons unborn at the time of the passing of the act proposed. Such an adjustment, though perhaps the best that could possibly be supposed, can only be put in practice with great difficulty; the circumstance of an heir being expected to be born, nearer than any heir alive, and numberless others of a similar nature, would render the application of the principle a series of difficulties. Lord Kames communicated his views on this subject to lord Hardwick and lord Mansfield, and these great judges admitted their propriety; it had been well had the warning voice been heeded—but at that period the allegiance of Scotland might have been endangered by such a measure. The duke of Argyle was then the only Scotsman not a lawyer, who could look without horror on an attempt to infringe on the divine right of the lairds.

In 1760, appeared another philosophically legal work from our author’s prolific pen, entitled "Principles of Equity," composed with the ambitious view of reconciling the distinct systems of jurisprudence of the two nations -- a book which might be of great use in a country where there is no law, and which, though it may now be applied to but little practical advantage in Scotland, it is rather humiliating to think, should have ever been considered requisite as a guide to our civil judges. But the opinions of this volume, which referred to the equity courts of England, received a kindly correction from a masterly hand. In tracing the jurisdiction of the court of chancery, lord Kames presumed it to be possessed of perfectly arbitrary powers, (something resembling. those at one time enjoyed by the court of session,) enabling it to do justice according to the merits, in every case which the common law courts did not reach; and with great consideration laid down rules for the regulation of its decisions, forgetting that, if such rules could be applied to any court so purely arguing from circumstances and conscience, the rules of an act of parliament might have been as well chosen, and rather more strictly followed, than those of the Scottish judge. But it appears that lord Kames had formed erroneous ideas of the powers of the English equity courts; and in a portion of Sir William Blackstone’s Commentary, attributed to the pen of lord Mansfield, he is thus corrected: "on the contrary, the system of our courts of equity is a laboured, connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection." Tytler, on all occasions the vindicator of his friend, has attempted to support the theory of lord Kames, by making Blackstone contradict himself: he has discovered the following passage in the Introduction to that author’s works,—"Equity depending essentially upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law." But in this passage, be it recollected, the author speaks of courts of pure equity like the Praetorian tribunals of the Romans, untrammelled by act or precedent, and left entirely to judicial discretion, a species of institution of which he does not admit the existence in England. But let us not relinquish this subject, without bestowing our meed of approbation on the noble efforts which the learned author has made in this, and more effectually in others of his works, to reconcile the two countries to an assimilation in laws. There is no more common prejudice, than the feeling, that the approach of one country to the laws and customs of another, is not an act of expediency, but an acknowledgment of inferiority, and it generally requires a harsher struggle on the part of the weaker, than on that of the stronger people. It is frequently maintained that a love for ancient institutions, and a wish to continue them, however cumbersome, is the characteristic safeguard of freedom; but might it not be said, that the firmness of a nation consists in the obedience it pays to the laws while they exist, paying them not the less respect in their execution, that they look upon them as systems which should be altered by the legislative authority. "Our law," says lord Kames, "will admit of many improvements from that of England; and if the author be not in a mistake, through partiality to his native country, we are rich enough to repay with interest all we have occasion to borrow;" a reflection which might produce good seed, if it would teach some narrow intellects to examine the merits of some petty deformities of Scottish law, for which antiquity has given them an affection. And if the proud legislators of a neighbouring country would desert for a moment the stale jest which forced itself into the words "nolumus leges Angliae mutari," and admit the possibility that the mighty engine of English jurisprudence might admit some improvement from the working of a more simple and in many things very efficacious machine, the high benefits of a participation in the excellencies of their own system, which they show so much anxiety to extend across the border, would be received with less jealousy and suspicion.

Passing over the introduction to the Art of Thinking, published in 1761, we turn with much pleasure to the contemplation of another of the philosophical productions of this eminent writer, the work on which his reputation chiefly depends. In 1761 was published, in three octavo volumes, "The Elements of Criticism." The correspondence and previous studies of the author show the elaborate and diversified matter of these volumes to have been long the favourite subject of his reflections. It had in view the aim of tracing the progress of taste as it is variously exhibited and acknowledged to exist, to the organic principles of the mind on which in its various departments it is originally founded, displaying the art of what his biographer justly calls "Philosophical Criticism, in opposition to that which is merely practical, or applicable to objects of taste as they appear, without any reference to the causes why the particular feelings are exhibited. But that lord Kames was in this "the inventor of a science," as his biographer has termed him, is a statement which may admit of some doubt.

The doctrine of reflex senses propounded by Hutchinson, the father of the Scottish System of Philosophy, had many years previously laid a firm foundation for the system, afterwards so ably erected. Some years previously to the publication of the Elements of Criticism, Hume and Gerard had drawn largely from the same inexhaustible source, and, if with less variety, certainly with more correctness and logical accuracy of deduction; and Burke, though he checked the principle of the sensations he has so vividly illustrated by arbitrary feelings assigned as their source, contributed much to the advancement of that high study. Nor is it to be denied, that the ancients at least knew the existence of this untried tract, if they did not venture far within its precincts, for few can read Cicero de Oratore, Longinus, or the Institutions of Quinctilian, without perceiving that these men were well acquainted with the fundamental principles of the rules of criticism. But relinquishing the discussion of its originality, the Elements of Criticism is a book no man can read without acquiring many new ideas, and few without being acquainted with many new facts: it is full of useful information, just criticism, and ingenious reasoning, laying down rules of composition and thought, which have become classical regulations for elegant writers. The author is, however, a serious transgressor of his own excellent rules; his mind seems to have been so perpetually filled with ideas, that the obstruction occasioned by the arrangement of a sentence would cause a considerable interruption in their flow; hence he is at all times a brief, unmelodious composer, and the broken form of his sentences frequently renders their meaning doubtful. The following specimen, chosen by chance, is an example of a good rule ill observed by its maker: "In arranging a period, it is of importance to determine in what part of it a word makes the greatest figure, whether at the beginning, during the course, or at the close. The breaking silence rouses the attention, and prepares for a deep impression at the beginning; the beginning, however, must yield to the close: which, being succeeded by a pause, affords time for a word to make its deepest impression. Hence the following rule, that to give the utmost force to a period, it ought, if possible, to be closed with that word which makes the greatest figure. The opportunity of a pause should not be thrown away upon accessories, but reserved for the principal object, in order that it may make a full impression: which is an additional reason against closing a period with a circumstance. There are, however, periods that admit not such a structure, and, in that case, the capital word ought, if possible, to be placed in the front, which next to the close, is the most advantageous for making an impression" (v. ii. p. 72). But were we to scrutinize with malicious accuracy, we might find sentences like the following, bidding defiance to form and sense. "Benevolence and kindly affection are too refined for savages, unless of the simplest kind, such as the ties of blood," (Sketches of Hist. of Man, v. i. p. 270;) or, "Here it is taken for granted, that we see external objects, and that we see them with both eyes in the same place; inadvertently, it must be acknowledged, as it flatly contradicts what he had been all along inculcating, that external objects are not visible, otherwise than in imagination," (Essays on Morals, p. 276). It has been said, and not without reason, that the critical principles of lord Kames are more artificial than natural, more the produce of refined reasoning than of feeling or sentiment. The whole of his deductions are, indeed, founded on the doctrine of taste being increased and improved, and almost formed by art, and his personal character seems not to have suggested any other medium for his own acquisition of it. He joined the vulgar cry of the period on the barbarism of the Gothic architecture, probably because the general disrespect in which it was held prevented him from being anxious to discover any "first principles" on which to erect for it a character of propriety and elegance. In his plans for the improvement of his grounds, we find him falling into practical abortions of taste, of which, had they been presented to him as speculative questions, he might have seen the deformity. In a letter to the accomplished Mrs Montague, he says, "a rill of water runs neglected through the fields, obscured by pretty high banks. It is proposed that the water be raised in different places by stone buildings imitating natural rocks, which will make some beautiful cascades. The banks to be planted with flowering shrubs, and access to the whole by gravel paths. The group will produce a mixture of sweetness and liveliness, which makes fine harmony in gardening as well as in life;" and farther on, "But amongst my other plans, I have not forgot the spot pitched upon by you for a seat; and because every thing belonging to you should have something peculiar, the bottom, to be free from wet, is contrived to fold up, and to have for its ornament a plate of brass with this inscription, ‘rest, and contemplate the beauties of art and nature.’" The Elements of Criticism had the good fortune to call forth a little of the virulence of Warburton, who seems to have complacently presumed that lord Kames composed his three thick volumes with the sole and atrocious aim of opposing some of the theories of the learned divine; and Voltaire, certifying the author by the anomalous name of "Makaims," has bestowed on him a few sneers, sparingly sprinkled with praise, provoked by the unfortunate Scotsman having spoken of the Henriade in slighting terms, and having lauded Shakspeare to the prejudice of the French drama.

In April, 1763, lord Kames was appointed a lord of justiciary, in the criminal court of Scotland. Some have accused him of severity as a judge; but in the character of the man who can stretch the law against the criminal, there is something so repugnant, and—acting in a court where judges decide very much from discretion, and from which the accused enjoys no appeal,—something so truly abhorrent, that we would require much and strong evidence indeed, before we could attribute to a man of great benevolence, of much and tried philanthropy, and of general virtue, the characteristic of a cruel judge. Surrounded by judicial duties and immersed in professional and literary studies, he was still an active supporter of the useful institutions which he had some time previously joined, investigating along with the celebrated Dr Walker, the proper grounds for improving the cultivation and manufactures of the Western Isles, and the more remote parts of Scotland. In 1766, a new field was opened for his exertions, by his succession; through the death of his wife’s brother, to the extensive estate of Blair Drummond, which made him a richer, but not a more illustrious man. The chief circumstance which renders this accession to his fortune interesting to the world, is the commencement of a vast system of improvement, by floating into the Firth of Forth the surface of a moss, extending over portions of his own, and many contiguous estates, and shrouding what cultivation has made and is still making the finest land in Scotland. The next issue from the pen of lord Kames, were, a small pamphlet on the Progress of Flax Husbandry in Scotland, published in the year 1765, and in the ensuing year, a continuation of his Remarkable Decisions from 1730 to 1752. He now began to approach that age which has been marked out as a period reached by a small proportion of the human race, but though stricken in years, and pressed upon by official duties, he did not flinch from a new and elaborate undertaking on a subject of many diversified branches, some of which were totally disconnected with his previous literary labours. Lord Kames appears to have had his mind perpetually filled with the matter he was preparing to discuss, and to have constantly kept open to the world the engrossing matter of his thoughts; it is thus that, for some time previously to the publication of his "Sketches of the History of Man," (which appeared in 1774,) we find an ample correspondence with his literary friends,—with Dr Walker, Sir James Nasmith, Dr Reid, and Dr Black, affording some most interesting speculations on the gradations of the human race, and the analogy between plants and animal subjects—which had long been speculated upon by our author. On these branches of philosophy, he has bestowed considerable attention in the Sketches of the History of Man, to little satisfaction. In reasoning a priori from the history of man in the world, and the various aspects of his tribe, the author erects a system in opposition to that of revelation, to which however he afterwards yields, as to the authority of the court, allowing it to be true, not by any means from the superiority of the system to his own, but because holy writ has told it. But if the work be hereafter perused, to gratify an idle hour with its amusing details, few will search in it for much information on a subject which has received so much better illustration from Blumenbach, Pritchard, and Lawrence. But the subjects of these sketches are multifarious; Ossian’s poems are ingeniously introduced as part of the history of man, constituting a sort of barbaro-civilized period, when probably the same amount of polish and of rudeness which still exists, held sway, though without neutralizing each other, and both displayed in the extreme; government is also discussed, and finances. The political economy is old and narrow, looking upon national means too much in the light of an engine to be wielded, rather than as a self-acting power, which only requires freedom and room to enable it to act; nevertheless it is sprinkled with enlightened views such as the following: "It appears to be the intention of Providence, that all nations should benefit by commerce, as by sunshine; and it is so ordered, that an unequal balance is prejudicial to the gainers, as well as to the losers: the latter are immediate sufferers; but not less so ultimately are the former."

In his latter days, the subject of our memoir produced four more extensive works, of which we shall only mention the names and dates: "The Gentleman Farmer," in 1776,—"Elucidations respecting the Common Law of Scotland," in 1777,—"Select Decisions of the Court of Session from 1752 to 1768," published in 1780,—"Loose Hints on Education." The last of his works, was published in 1781, in the 85th year of the author’s age, a period when the weakness of the body cannot fail to communicate itself to the thoughts. The green old age of lord Kames seems to have been imbittered by no disease but that of general decay. He continued his usual attention to the agricultural and manufacturing projects of the country; gratified his few leisure hours in the society of his select literary friends, attended the court of session, and even performed the arduous duty of travelling on the circuits: he was indeed a singular specimen of a mind whose activity age could not impede. His correspondence continues till within a short time of his death, and before leaving the world, he could spare some consideration for assisting in the establishment of an institution, the pleasures and profits of which could not be reaped by him, The Royal Society of Scotland. During his short and last illness, he expressed no dread except that he might outlive the faculties of his mind; to the usual solicitations, which friends can never avoid making on such occasions, that he would submit himself to the care of a physician—"Don’t talk of my disease," he answered, "I have no disease but old age. I know that Mrs Drummond and my son are of a different opinion; but why should I distress them sooner than is necessary. I know well that no physician on earth can do me the smallest service: for I feel that I am dying; and I thank God that my mind is prepared for that event. I leave this world in peace and good-will to all mankind. You know the dread I have had of outliving my faculties; of that I trust there is now no great probability, as my body decays so fast. My life has been a long one, and prosperous, on the whole, beyond my deserts: but I would fain indulge the hope that it has not been useless to my fellow creatures."

A week before he died, lord Kames took a final farewell of his old friends and professional companions, on that bench to which he had been so long an ornament. He parted from each as a private friend, and on finally retiring from the room, is said to have turned round on the sorrowful group and bid his adieu in an old favourite epithet, more expressive of jovial freedom than of refinement. He died on the 27th of December, 1782, in the 87th year of his age. We have narrated the events of his life with so much detail, that a summary of his character is unnecessary; he is said to have been parsimonious, but if the epithet be applicable, the private defect will be forgotten in the midst of his public virtues. He possessed the dangerous and powerful engine of sarcasm; but he used it to heal, not to wound. The following instance of his reluctance to give pain, to be found in a letter to Mr Creech, is so characteristic of a truly worthy man, that we cannot abstain from quoting it. "In the fifth volume of Dodsley’s collection of poems, there is one by T—— D......... at page 226, which will make a good illustration of a new Rule of Criticism that is to go into the new edition of the Elements; but, as it is unfavourable to the author of that poem, I wish to know whether he is alive; for I would not willingly give pain."

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