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Significant Scots
Sir George MacKenzie

Sir George MacKenzieMACKENZIE, (SIR) GEORGE, a celebrated lawyer and state officer, and perhaps the first Scotsman who wrote the English language in a style approaching to purity, was born at Dundee, in 1636. His father was Simon Mackenzie of Lochslin, brother of the earl of Seaforth, and his mother Elizabeth Bruce, daughter of Dr Peter Bruce, principal of St Leonard’s college, St Andrews. His progress at school was so rapid, that in his tenth year he was master of all the classical authors usually taught in schools. He afterwards studied Greek and philosophy in the universities of St Andrews and Aberdeen, and civil law in that of Bourges in France; and, in January, 1659, before the termination of his twenty-third year, entered as an advocate at the Scottish bar.

In 1660, he published his Aretina, or Serious Romance, in which, according to his kind biographer, Ruddiman, he gives "a very bright specimen of his gay and exuberant genius." His talents must have been early observed and appreciated, for in 1661, his third year at the bar, he was selected as one of the counsel of the marquis of Argyle, then tried by a commission of parliament for high treason. On this occasion, he acted with so much firmness, and even boldness, as at once established his character. As the counsel for Argyle were appointed by parliament, they presented a petition under form of protest, that in the defence of their client, they might not be made responsible for every expression they might utter, but that a latitude and freedom of expression, suitable to the extent and difficulty of the charges they were called upon to canvass, might be allowed them. This being peremptorily refused, Sir George and his associates took such steps, in consequence, as subjected them to the imminent risk of a charge of treason: "it is impossible to plead for a traitor," said the young lawyer, "without speaking treason!" an antithesis certainly more bold than true, but calculated to make a considerable impression upon the multitude. The counsel only escaped from the consequences of their rashness by the special mercy of the court.

The purely literary labours of this eminent person, appear to have been chiefly executed during his earlier years. His "Religio Stoici, or a short Discourse upon several divine and moral subjects," appeared in 1663. Two years afterwards, he published his Moral Essay upon Solitude, preferring it to public employment, with all its appendages, such as fame, command, riches, pleasures, conversation, &c. This production was answered by the celebrated Evelyn, in a Panegyric on Active Life. "It seems singular," says the Edinburgh Review, "that Mackenzie, plunged in the harshest labours of ambition, should be the advocate of retirement, and that Evelyn, comparatively a recluse, should have commended that mode of life which he did not choose." But it is probable that each could write most freshly on circumstances disconnected with the daily events of his life, while speculative ingenuity was all they cared to reach in their arguments. "You had reason to be astonished," says Evelyn, writing to Cowley, "that I, who had so much celebrated recess, should become an advocate for the enemy. I conjure you to believe that I am still of the same mind, and there is no person who can do more honour, and breathe more after the life and repose you so happily cultivate and advance by your example; but as those who praised dirt, a flea, or the gout, so have I public employment, and that in so weak a style compared with my antagonists, as by that alone it would appear, that I neither was nor could be serious." In 1667, Mackenzie published his Moral Gallantry, one of the reflective treatises of the period, intending to prove the gentlemanliness of virtue, and the possibility of establishing all moral duties on principles of honour--a theory supported by arguments which, had any of the nicer metaphysical minds of the succeeding age thought fit to drive to their ultimate principles, they might have found to be somewhat inimical to the author’s hearty church of England feelings, or even the principles of Christianity. But Mr Mackenzie was not a metaphysician, and religion required to be plainly spoken, in terms of presbyterianism or papistry, before it attracted his legal attention. To this production he added a Consolation against Calumnies. The fiery course of politics which he had afterwards to run, made a hiatus of considerable extent, in the elegant literary pursuits of Mackenzie; but after his retirement from public life, he wrote another work which may be classified with those just mentioned —The Moral History of Frugality;" nor in this classification must we omit his Essay on Reason. Mackenzie had associated himself with the elegant wits of England, and his opportunities enabled him, if he was inferior in the actual bullion of genius to many of his countrymen who had gone before him, to give it a more elegant, or, at least, fashionable form. It is probable that any direct imitation, on the part of Mackenzie, may have been from the writings of Cowley, who, in the youth of the ambitious Scottish author, was the acknowledged leader of refinement in English composition. From his opponent Evelyn, he may also have derived facilities in composition; but it is probable that the best tone he assumed was imparted by the colloquial influence of Dryden. Of Mackenzie, that great man has left an interesting memorial:—"Had I time, I could enlarge on the beautiful turns of words and thoughts, which are as requisite in this, as in heroic poetry itself. With these beautiful turns I confess myself to have been unacquainted, till about twenty years ago, in a conversation which I had with that noble wit of Scotland, Sir George Mackenzie. He asked me why I did not imitate, in my verse, the turns of Mr Waller and Sir John Denham, of whom he repeated many to me. I had often read with pleasure, and with some profit, these two fathers of our English poetry, but had not seriously enough considered their beauties, which give the last perfection to their works. Some sprinkling of this sort I had also formerly in my plays, but they were casual and not designed. But this hint, thus seasonably given me, first made me sensible of my own wants, and brought me afterwards to seek for the supply of them in other English authors." This is given by Dryden in his Discourse on the Origin and Progress of Satire, prefixed to his Juvenal, published two years after Mackenzie’s death. Mackenzie is characterized by the Edinburgh Review, as having been in his style not exempt from Scotticisms: "but he is perfectly free from those, perhaps, more disagreeable vices, into which more celebrated Scottish writers have been betrayed, by a constant fear of Scotticism. He composes easily and freely, and his style is that of a man who writes his native language." Meanwhile, along with his elegant prose, he found time and inclination to dabble in poetry. Sometime during his early years, at the bar, he wrote "Celias’ Country House and Closet," a poem in English epics, and written in a manner more nearly akin to the style of Pope and his contemporaries, than that which flourished in the author’s own time. Such a passage as the following will enable the reader to comprehend at once the merit of the work, and, taking into consideration the political life of the author, its artificial feeling:--

"O happy country life, pure as its air;
Free from the rage of pride, the pangs of care;
Here happy souls lie bathed in soft content,
And are at once secure and innocent.
No passion here but love: here is no wound,
But that by which lovers their names confoun!
On barks of trees, whilst with a smiling face,
They see those letters as themselves embrace."

Country life, and love in the midst of it, were standing characteristics of the fashionable poetry of the period, and the stormy politician, anxious, like Richelieu, to distinguish himself in song, must submit to them, as absolutely as the love-sick swain, to whom they are a natural habit. The author seems to have been apprehensive that the fruit of his more elegant studies would not give the world a favourable opinion of his professional attainments. "The multitude," he says in the conclusion to his Religious Stoic, "(which, albeit, it hath ever been allowed many heads, yet hath never been allowed any brains,) will doubtless accuse my studies of adultery, for hugging contemplations so eccentric to my employment. To these my return is, that these papers are but the parings of my other studies, and because they were but parings, I have flung them out into the streets. I wrote them in my retirements, when I wanted both books and employment; and I resolve, that this shall be the last inroad I shall ever make into foreign contemplations."

Let us now turn from his literature to the political and professional advancement, which interfered with its progress, or at least changed its course. Soon after the Restoration, he was appointed a justice-depute, or assistant to the justiciar or chief justice; a situation, the duties of which were almost equivalent to that of an English puisne judge of the present day, in criminal matters. He must have received the appointment very early in life, as in 1661, he and his colleagues were appointed to repair "once in the week at least to Musselburgh and Dalkeith, and to try and judge such persons as are ther or therabout delated of witchcraft;" and the experience in the dark sciences, obtained by him in this occupation, provided him with much grave and learned matter for his work on the criminal law of Scotland. Within a few years after this period, (the time is not particularly ascertained,) he was knighted. In 1669, he represented the county of Ross, where the influence of his family was extensive in parliament. During that year, the letter of Charles, proposing the immediate consideration of a plan for an incorporating union of the two kingdoms, was read in parliament. Sir George, an enemy to every thing which struck at the individual consequence and hereditary greatness of the country, in which he held a stake, opposed the proposition. He tells us, in his amusing memoirs of the period, that when the commissioner proposed an answer, closing with the king’s proposals, and entitling him to the election of the commissioner, he moved that the parliament should have a day for the consideration of so serious a matter, as there might be questions about succession to be discussed, "whereupon the commissioner rose in a great passion, and told that he consented that the parliament should deliberate upon the letter now read till to-morrow; but that he understood not, how any member of parliament could be so bold as to inquire into the succession, upon a supposition that his majesty, and all the present royal line, should fail." Next day, Sir George came prepared with a speech on the subject. Of this somewhat interesting effort, he has given us a transcript, which is generally understood to be the earliest authentically reported specimen of legislative eloquence in Scotland. It is compact, clear, accurate, well composed, without flights of ardour, and, therefore, destitute of the burning impetuosity which afterwards distinguished Fletcher and Beihaven. On the whole, it appears, in its present form at least, to have been composed in the closet. His reasoning, when the aim is considered, was prudent and cautious--he considered and doubted "whether it was suitable to our honour, to advance in this union those steps, before England met us in one: and that we have done so in this letter, appears from this, that to treat of an union is one step; the second is to name commissioners; the third is to appoint their quorum, time, and place of their meeting: all which are several steps because they behoved, if they had been concluded in parliament, to have had several votes and conclusions." He also doubted, "whether it were fitter for his majesty’s service, and the intended treaty, that the nomination of the commissioners should be referred to his majesty, or rather that they should be nominated in parliament." His speech gave great offence to those who had peculiar grounds for objecting to long harangues. "About the close of his discourse, he was interrupted by the earl of Tweeddale, who said, that such long discourses were intolerable, especially where they intended to persuade the parliament not to comply with his majesty’s desires—which interruption was generally looked upon as a breach of privilege—and it was desired by duke Hamiltoun, that the earl of Tweeddale should go to the bar; but the gentleman who was interrupted declared, that he had not been interrupted, but had finished his discourse; and, thereupon, that motion took no further effect." Sir George sought distinction in his course through parliament by popular measures. In 1669, an act had been passed, compelling merchants to make oath as to their having paid duties on their merchandise. " The commissioner had that day said, that the stealing of the king’s customs was a crime, which was to be provided against: whereupon, Sir George Mackenzie replied, that if it was a crime, no man could be forced to swear for it; for by no law under heaven was it ever ordained that a man should swear in what was criminal. This, and all other passages of that day, joined with Sir George owning the burghs, in which it was alleged he had no proper interest, made his grace swear, in his return from the parliament, that he would have that factious young man removed from the parliament: to effectuate which, he called a council of his favourites, and it was there contrived, that his election should be quarrelled, because he held only lands of the bishop of Ross, but not of his majesty, and so was not a free baron. But they were at last diverted from this resolution by the register, who assured them, that this would make the people jealous of some close design to overturn their liberties, which, as they believed, that gentleman defended upon all occasions; and that he would glory in his exclusion, because it would be believed that they could not effectuate their intentions, if he were allowed to keep his place in parliament." Such is his own account of his parliamentary conduct,—it may be correct in point of fact, and he has abstained from any mention of the motives. He opposed the act of forfeiture against the western rebels, insisting that no man ought to be found or proved guilty in absence. His account of the opposition of the advocates on the subject of appeals, along with his somewhat suspicious conduct towards his rival Lockhart, have been already detailed. [In the Life of Sir George Lockhart.] Sir George Mackenzie would have gone to the grave with the character of a patriot, had he not been placed in a position where serving a king was more beneficial than serving the people. On the 23d of August, 1677, he was named king’s advocate, on the dismission of Sir John Nisbet. The object of the change was a subject of deep and well founded suspicion. Sir George states that his precursor, "a person of deep and universal learning, having disobliged my lord Hatton, he procured a letter to the lords of session, ordaining them to make inquiry into his having consulted pro et con in the case of the lord chancellor and lord Melville, concerning the tailzie of the estate of Leven," and Sir George amiably represents himself as having persuaded Nisbet to stand to his defence. Wodrow observes that he was appointed, "some say upon a very sordid reason;"and Burnet distinctly states, that it was for the purpose of prosecuting Mitchell, who had been pardoned four years before for the attempted murder of Sharpe: at all events this was his first duty in his high office—it was one which on the whole required some address. Mackenzie had prepared himself, by having been counsel for Mitchell when he was previously tried. "He was a very great instrument," says Wodrow, "in the hands of the presbyterians, and was scarce ever guilty of moderating any harsh proceedings against them, in the eyes of the prelates themselves." As the trial of the earl of Argyle in 1661, was the first important political case in which he had tried his powers as a defender, so was that of his son in 1681, the first which exercised his abilities as a state prosecutor. In the father’s case he had to resist the oppressive fictions of the crown lawyers, but all he suffered was amply repaid on the son. After this celebrated trial, he appears to have obtained, as part of the spoil, a gift of the barony of Bute, ratified by the parliament of 168l. [Acts, viii. 679.] On the recapture of the earl after his escape, Mackenzie was one of those who objected to a new trial, and he accordingly recommended his suffering on his former sentence; he is alleged to have done so from the probability, that, owing to the extreme injustice of the sentence, his heirs might probably be restored to their heritage. If such was indeed his motive, no man was ever more improvident of his own fame, or disinterested in sacrificing it for others; but Mr Laing has shrewdly observed, "no doubt Sir George at the Revolution would assume that merit with Argyle’s son, when they sat together in the convention parliament. But he was the man who procured, when king’s advocate, that illegal sentence, on which he moved for Argyle’s execution." [History, ii. 154.] Meanwhile his professional ingenuity had been employed in the case of the lawburrows, by which a legal form, useful in the defence of the subject against lawless aggression, was, by adding to its natural power the weight of the royal influence, made an engine of oppression. It would be a vain task to enumerate the minor state prosecutions, which, in this eventful period, gave full employment to this active servant of government—most of them are well known, and they were at any rate numerous enough to stamp him in the minds of his opponents with a character which must live with his name—"The blood-thirsty advocate." In the year 1680, he tried the celebrated Cargill, who, among other acts of inefficacious spiritual authority, had pronounced sentence of excommunication on the lord advocate. When the indictment was read, bearing, in the ordinary terms, that the accused "having cast off all fear of God," &c., the clerk was interrupted by Cargill, who said, "The man who hath caused this paper to be drawn up, hath done it contrary to the light of his own conscience, for he knoweth that I have been a fearer of God from my infancy; but that man, I say, who took the holy Bible in his hand, and said it would never be well with the land till that book was destroyed, I say, he is the man who hath cast off all fear of God." In 1684, after the escape of Sir Hugh Campbell, it being felt necessary that Baillie of Jerviswood should suffer, Mackenzie’s energies were exercised on the occasion; and he gained the gratitude of the court, by doing what was wanted. Fountainhall has a characteristic note about his proceedings at this period. "Sir William Scott, of Harden, fined in 1500 lb. sterling, for his ladie’s being at a conventicle, and being at one himself. It was said the king’s advocate, Sir George Mackenzie, got a previous gift of this fine, for journeys to London." [Fountainhall’s Notes, 70.] Sir George found it necessary to attempt a vindication of his acts, under the title of "A Vindication of the Government of Charles II.," which, lord Woodhouselee calmly observes, "will fully justify his conduct in the breast of every man whose judgment is not perverted by the same prejudices, hostile to all government, which led those infatuated offenders to the doom they merited." [Life of Kames, i. Ap. 12.] Sir George was a calm and thinking man, and his vindication bears the aspect of candour; but it is deficient in conclusiveness. "No age," he says, "did see so many thousands pardoned, nor so many indemnities granted, as was in his time: which, as it must be principally ascribed to the extraordinary clemency of the kings he served, so it may be in some measure imputed, to the bias which Sir George had to the merciful hand." Sir George leaves out of view, that it is possible for one lord advocate so far to exceed another in the number of his prosecutions, as both to acquit and sacrifice more than the whole number accused by his brethren. It was not those who were forgiven, but those who were not forgiven, that fix upon the reign of Charles II., and also upon his Scottish advocate, the indelible character of oppression and blood-thirstiness. It must, at the same time, be allowed, that the acute mind of Sir George Mackenzie was never asleep to practical improvements in jurisprudence, although the lust of power was sufficient to subdue his efforts, or turn them into another course. While he wielded the sword of persecution himself, he did much to unfit it for the use of others. He countenanced and cherished a principle, which called for the examination of all witnesses in criminal cases, in presence of the accused, instead of the secret chamber of the privy council. A frightful fiction of the law of both countries, by which no evidence could be led by a prisoner in opposition to the assertions of the libel made by the prosecutor, as representing the king, was removed by Sir George, forty years before it ceased to exist in England; and he put a stop to the system of permitting the clerk of court to be enclosed with the king, for the purpose of assisting him. This was done with a view to preserve the independence of jurymen; but let it be remarked, that in his work on criminal law, he advises the total abolition of trial by jury. In 1686, Mackenzie showed that he had a feeling of conscience, and that his religion, if entirely political, was not accurately squared to personal aggrandizement, by suffering himself to be dismissed for not agreeing to the catholic projects of James II. In 1688, however, he was restored, on the advancement of his successor, Dalrymple, to the presidency of the court of session. [Fountainhall, 267.] The Revolution terminated his political career. At this feverish moment of struggle and disappointment, he could so far abstract his mind from politics, as to perform the greatest public service which is even now connected with his name, by founding the Advocates’ Library. The inaugural speech which was pronounced on the occasion, is preserved in his works. The institution has flourished, and redeems Scotland from the imputation of not possessing an extensive public library. After the Revolution, Sir George threw himself into the arms of the university of Oxford, the fittest receptacle for so excellent a vindicator of the old laws of divine right. He was admitted a student on the 2nd of June, 1690; but he did not long live to feel the blessings of the retirement he had praised, and for the first time experienced. He died at St James’s on the 2nd May, 1691. He was still remembered in the national feeling as a great man, and his funeral was one of unusual pomp. He lay several days in state in the abbey of Holyrood House, whence his body was conveyed to the Grey Friars’ churchyard, attended by a procession, consisting of the council, the nobility, the college of justice, the college of physicians, the university, the clergy, and many others.

Sir George wrote several works of a more laborious cast than those to which we have referred. His Institute of the Law of Scotland is well arranged, but, in comparison with the profoundness of Dalrymple, is meagre, and its brevity make it of little use. His Laws and Customs in Matters Criminal, is full of useful information, and is the earliest arrangement (though not a very clear one) of our criminal code. His "Observations on the Laws and Customs of Nations as to Precedency, with the Science of Heraldry as part of the Law of Nations," is esteemed by heralds. When Stillingfleet and Lloyd made their critical attacks on the fabulous history of Scotland, Sir George, who seemed to consider it a very serious matter to deprive his majesty of forty ancestors, wrote in 1680 "A Defence of the Royal Line of Scotland," in which he comes forward as his majesty’s advocate, and distinctly hints to the contemners of the royal line, that, had they written in Scotland, he might have had occasion to put his authority in force against them. These works, along with the observations on the acts of parliament, and some other minor productions, were edited by Ruddiman, in two handsome folio volumes, in 1722. His "Memoirs," or account of his own times, certainly the most interesting of all his works, though promised at that time, was withheld through the timidity of his friends. When long lost sight of, the greater part of it has of late years been recovered to the world. It is full of graphic pictures of the state of the times; and if not so descriptive in character as Clarendon or Burnet, is often more lively in the detail of incident, and more acute in perceiving the selfish motives of the actors.

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