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LOCKHART, (SIR) GEORGE, a
distinguished constitutional lawyer, and lord president of the court of
session, was the second son of Sir James Lockhart of Lee, a judge of the
court of session. The period of his birth is unknown, and the earliest
circumstance of his life which has been recorded is, that he studied for the
bar, to which he was admitted on the 8th of January, 1656, by the
commissioners appointed for the administration of justice in Scotland, under
the government of Cromwell.[Brunton and Haig’s Hist. Of Col. Of Just., 419.]
The well-known personal interest of his brother, Sir William Lockhart, with
the protector, was probably the means of introducing his talents to early
notice; and on the 14th May, 1658, he was appointed "sole attorney," or lord
advocate of Scotland. On the restoration of the monarchy, his family
influence procured him favour at court; and after taking the oath of
allegiance, along with the performance of other somewhat humiliating
ceremonies, expressive of regret for his support to the fallen government,
he was permitted the exercise of his profession, and received the honour of
knighthood in 1663. Sir George distinguished himself as an able barrister,
and became a man of power and influence. Notwithstanding favours extended
towards him, such as monarchs too often find sufficient to secure
unhesitating tools, he used the privileges of his profession frequently
against the court; and through the progress of the dark deeds perpetrated by
Tweeddale and Lauderdale, his name frequently occurs in the books of
Adjournal (the criminal record of Scotland), as using his professional
abilities in favour of the covenanters. One of the most prominent features
of his life, is the struggle which he headed in 1674, for procuring by
indirect means, and partly through the influence of the bar, an appeal from
the courts of law to the legislature, unauthorized by the theory of the
constitution of Scotland, and directly against the wishes of the court, to
which a body of paid judges, removeable at pleasure, seemed a more pliable
engine, than an assembly of men, partly elected, partly holding by
hereditary right. He was the person who, in the suit between the earl of
Dunfermline, and the earl of Callender and lord Almond, advised the last
mentioned to present an appeal to parliament. [Those readers who are not
acquainted with the details of this event, may find such circumstances
connected with it as are here omitted, in the life of Sir John Lauder of
Fountainhall.] The earl being cited before the privy council to answer for
this act, applied to Sir George Lockhart, Sir Robert Sinclair, Sir George
Cunningham, and Sir George Mackenzie, for information how to act in the
matter; and a paper was drawn up for him by these eminent men, declaring
"that he desired nothing thereby, but to protest for remeid of law;" in
other words, that he did not wish the decree of the court of session to be
reduced on the ground of injustice or oppression, but a revisal by the
parliament, declaratory or statutory, as to the law on the point. "In all
which," says Sir George Mackenzie, with the bitterness of disappointment,
"Sir George Lockhart’s design was to bring in this trial before the
parliament, hoping thereby that they would lay aside the president, and
leave the chair vacant for him." Lauderdale immediately proceeded to court,
accompanied by the president of the court of session and one of the judges;
and on their report of the proceedings, Charles found the matter of
sufficient importance to demand personal interference, and wrote a letter to
the privy council, in which, expressing his conviction of the
necessity of preserving the supreme power of the college of justice, and his
"abhorrence" of appeals, he was graciously pleased that no proceeding should
be instituted against those who had maintained the political heresy, in case
they disavowed it; but that if they did not, they should be debarred the
exercise of their professions. The consequence of this letter, was the
banishment of Lockhart and Cunningham, and the voluntary exile of fifty
advocates, who chose to resent the insult: but the manner in which the act
is detailed by Sir George Mackenzie, and the curious views which he casts on
the motives and conduct of his great rival, prompt us to extract the
passage:—"His majesty having ordained by his letters such as would adhere to
that appeal to be debarred from pleading, and Sir George Lockhart and Sir
John Cunningham being thereupon called in before the lords, they owned that
though formal appeals might be said to be contrary to the 62 act. par. 14
James II., yet a protestation for remeid of law might be allowed; whereupon
they were debarred from their employments, till the king should declare his
farther pleasure. And albeit it might have been reasonably concluded, that
this exclusion should have pleased the younger advocates, whom those seniors
overshaded, interrupting the chief advantage and honour that was to be
expected in that society; yet most fearing to offend so eminent men, who
they knew would soon return to their stations, and being pushed on by the
lords of the party, and the discontented persons to whom they owed their
employments, went tumultuarily out of the session house with those who were
debarred; and thus, as Sir George Lockhart broke that society at first by
his avarice, in the matter of the regulations, he broke them now again by
his pride, in the matter of the appeals; and by raising a clamour against
the president, and joining in the popular dissatisfaction, he diverted early
from himself that great hatred which was so justly conceived against his
insolence and his avarice; two crimes which were more eminent in him than
his learning."
Although the causes of the
enmity entertained by Mackenzie towards Lockhart are not fully explained,
the allusions of the former make it quite clear that it arose from
professional and political rivalry. The king had written to the burghs,
advising them to renew their old acts, against the choosing of
representatives. "The king’s design in this was," says Sir George, " to
exclude such as had been factious in the former parliament, and to engage
the burghs to an immediate dependence on the crown." The disaffected
advocates endeavoured to inspire the burghs with a wish to oppose the
designs of the court; in the mean time, however, it was necessary that the
king’s letter should be answered, and a draught of such a document was
prepared for the committee by Sir George Mackenzie. This letter was sent for
the perusal of Lockhart, who altered it "so as of a discreet and dutiful
letter, it became, by adding what was humorous, and striking out what was
discreet, a most unpolisht and indiscreet paper. And when Sir George
Lockhart was askt why he had deformed it so, his answer to James Stewart
was, that it was fit to make Sir George Mackenzie unpardonable." Sir George
Mackenzie alleges that Lockhart had induced him to join the body in favour
of appeals, on the ground that the union of so many members of the bar would
form a formidable opposition to Lauderdale; and it is to his enmity against
that minister at the period, that, without a better reason, we must date
Mackenzie’s accession to the cause. But when the king, on the 12th of
December, issued a proclamation, declaring, on the word of a prince, that
such of the advocates as should not petition for re-admission before the
28th of January following, should never be permitted to return to their
profession, Sir George Mackenzie "did so much tender the reputation of his
king, that he, having been bedrid of a broken leg when the rest were
debarr’d, shunn’d to have himself debarr’d, or publicly to own the appeal;
though to secure such as had, he declared that he would not return to his
employment without them. Which not satisfying Sir George Lockhart, who
pressed still that Sir George Mackenzie should be debarr’d, he was content,
in a letter under his hand, to oblige himself in these terms; but this
letter not having satisfied, and he being prest, merely to satisfy Sir
George Lockhart’s private humour, he called for his former letter, and wrote
in a postscript these words: ‘But if I enter, and put myself in the same
condition with the rest, I do declare this letter, and all the obligations
therein, to be void and not obligatory.’ And having owned the appeal with a
very undaunted courage, did from that hour despise that party which had
jealous’d him, after so many proofs of his courage and fidelity, to please a
little creature, who had never follow’d them, but his own passion, to which
he and they were become such slaves, that they had thereby lost the glory
and reputation of impartial reformers, which had so much recommended them at
first, while they followed Sir George Mackenzie’s disinterested
advices." Mackenzie then adds a circumstance, which will hardly diminish the
suspicion of his tortuous conduct in the business, although it may shed a
ray of additional light on the causes of his rancour towards Lockhart. This
is the letter from which the party concluded Sir George Mackenzie to be
guilty of perjury, in having entered before the rest; dispersing copies of
the letter, without the postscript, because they knew the postscript
destroyed their malicious pretences. Before the day which the court had
named as the last for receiving the submission of the recusant advocates, a
document, couched in the form of a petition, but steadily vindicating the
right of appeal for remeid of law, was presented to the privy council. This
very valuable paper, which has been preserved at full length by Mackenzie,
is full of legal knowledge, and clear concise reasoning; it had, however, to
strive, not only against power, but also against precedent; no clear
established law could be found on which to rest the right of appeal, and a
course of ingenious special pleading had to be derived from implication, and
the plea that the court of session was a distinct body from the daily
session of old, which, being a committee of parliament set apart for the
purpose of saving the time and trouble of the main body, would have defeated
its end by the admission of appeals. The grand constitutional argument of a
check on the venality of judges, could only be hinted at under the cloak of
deference and submission to the royal authority; and the petitioners thought
it prudent to terminate their certainly firm and manly statement of their
rights, with the concession, that "as the petitioners acknowledge there are
eminent lawyers upon the session, of deserved reputation; so if the lords of
session, by an act of sederunt, or otherwise, will plainly and clearly
declare that protestations for remeid of law, to his majesty and estates of
parliament, were and are in themselves unlawful, and that the parliament
cannot thereupon review and rescind their decreets, if they find just cause;
the petitioners will so far defer to their authority, as to be concluded
thereby, and satisfy what was prescribed and required by the lords of
session as to that point." Mackenzie was induced to sign this petition: he
says, "Sir George Lockhart’s love of money making him weary of that love to
revenge, he persuaded the appealers (for so all the adherers were called) to
give in an address to the privy council; but so bitter and humorous, that
Sir George Mackenzie though he had concur’d in furnishing materials and
argument, did with some others dissent from it; till they were again
conjur’d, by some of their comrades, not to make a rupture, at a time
wherein their fixt adherence to on another was their only security." The
petition was viewed by the privy council and the king, as a daring and
seditious piece of pleading; and Sir John Cunningham proceeding to London to
endeavour by his personal influence to alleviate the threatened effects, was
quickly followed by Sir George Lockhart and Sir Robert Sinclair; "but upon
express promise," says Mackenzie, "that if Sir George Mackenzie and those
who had signed the address, should be pursu’d for it, they should return and
concur with him in the defence. Notwithstanding whereof," he continues,
"they having been pursu’d in a process before the privy council, Sir George
Lockhart and Sir Robert Sinclair retir’d, and lurk’t near to North Allerton,
without acquainting even their wives of their residence, lest thereby they
might have been advertis’d. Whereupon Sir George Mackenzie gave in his
defence," &c. The defence deserted the constitutional origin of the
struggle, and assumed the aspect of a mere vindication of the motives of
presenting the petition. Mackenzie at length yielded: as a motive for so
doing, he says—but we are aware of no document that confirms the
assertion—that he "intercepted at last a letter, wherein they (Lockhart and
Sinclair) told their confidents that they had resolved to wait the event of
that process; in which, if Sir George Mackenzie was absolved, they would be
secure by the preparative; but if he was found guilty, the malice of the
pursuers would be blunted before it reacht them." Accordingly, on the
plausible ground that "it was no dishonour to submit to their prince, ceding
being only dishonourable amongst equals, and never being so, when the
contest was rais’d by such as design’d to make them knaves and fools,"
prevailed on the greater number of his brethren to submit. Sir George
Lockhart, left to maintain the struggle almost alone, fully aware that
unanimity and number only can give effect to political resistance, presented
a tardy submission in December, 1675, and was re-admitted to the privileges
of his profession on the 28th of January, 1676. [Mackenzie’s Memoirs, 267 to
310.] We have dwelt thus long on this incident, because it is one of the
very few constitutional struggles connected with the history of Scotland,
and the curious details lately brought to light in the Memoirs of Sir
George Mackenzie, are not very generally perused.
The next political
transaction in which we find Lockhart professionally engaged, is the trial
of Mitchell in 1678, for having four years previously attempted the murder
of archbishop Sharpe. He was tried on his own confession, and there is no
point of history more surely ascertained, or less liable to doubt, than that
the confession was obtained on a promise of pardon. " But," as Burnet
expressively says, "Sharpe would have his life." For the purpose of
facilitating the prosecution, Nisbet, the lord advocate, was superseded by
Mackenzie; and Primrose, from being clerk register, was appointed justice
general "He fancied," says Burnet, "orders had been given to raze the act
that the council had made (the act offering the conditional pardon), so he
turned the books, and he found the act still on record. He took a copy of it
and sent it to Mitchell’s counsel." Thus armed, Lockhart appeared, to meet
the confession. Burnet, who says, "he was the most learned lawyer and the
best pleader I have ever yet known in any nation," states that "he did plead
to the admiration of all, to show that no extrajudicial confession could be
allowed in a court. The
hardships of a prison, the
hopes of life, with other practices, might draw confessions from men, when
they were perhaps drunk, or out of their senses. He brought upon this a
measure of learning that amazed the audience, out of the lawyers of all
civilized nations. And when it was opposed to this, that the council was a
court of judicature, he showed that it was not the proper court for crimes
of this nature, and that it had not proceeded in this as at a court of
judicature. And he brought out likewise a great deal of learning upon those
heads. But this was overruled by the court, and the confession was found to
be judicial. The next thing pleaded for him was, that it was drawn from him
upon the hope and promise of life: and on this Sharpe was examined. The
person he had sent to Mitchell gave a full evidence of the promises he had
made him; but Sharpe denied them all. He also denied he ever heard any
promise of life made him by the council; so did the lords Lauderdale, Rothes,
and Halton, to the astonishment of all that were present. Lockhart upon that
produced a copy of the act of council, that made express mention of the
promise given, and of his having confessed upon that. And the prisoner
prayed that the books of council, which lay in a room over that in which the
court sat, might be sent for. Lockhart pleaded, that since the court had
judged that the council was a judicature, all people had a right to search
into their registers; and the prisoner, who was like to suffer by a
confession made there, ought to have the benefit of those books. Duke
Lauderdale, who was in the court only as a witness, and so had no right to
speak, stood up, and said he and those other noble persons were not brought
thither to be accused of perjury; and added, that the books of council were
the king’s secrets, and that no court should have the perusing of them. The
court was terrified with this, and the judges were divided in opinion.
Primrose and one other was for calling for the books, but three were of
opinion that they were not to furnish the prisoner with evidence, but to
judge of that which he brought, and here was only a bare copy, not attested
upon oath, which ought not to have been read. So this defence being
rejected, he was cast and condemned." Perhaps the annals of crime scarcely
produce another so perfect specimen of judicial villany.
The talents and courage of
Lockhart were employed by the duke of Argyle at his memorable trial in 168l;
three times the privy council denied him the sanction of their
warrant—unfortunately often necessary at that period for the safety
of the lawyer who should defend a person accused of treason—and it was at
last granted, lest Argyle, on the ground that he was deprived of legal
assistance, might interrupt the trial by refusing to plead. In the
parliament of 1681, he was appointed one of the commissioners of the shire
of Lanark, a seat which he held till his death, and in 1685, after the fail
of his opponents in the ministry, we find him one of the committee appointed
to answer the king’s letter to the parliament, and a lord of the articles.
[Act. Parl. viii. 456,7.] In 1685, on the death of Sir David Falconer of
Newton, Lockhart was appointed president of the court of session, and was
soon afterwards made a privy councillor, and a commissioner of the
exchequer. Having in the year 1679, boldly undertaken the task of
representing before the king the grievances against Lauderdale, he was
considered one of the chief political opponents of that minister, and seems
to have been gradually led to a participation with the proceedings of the
duke of York. After having followed the actions of a high minded man through
the path of honour, and seen him use his talents and influence in the
protection of the weak, and resistance to the powerful, it is painful to
arrive at transactions, in which the presence of his accustomed firmness, or
integrity, may seem wanting. He is said to have been at first opposed to a
repeal of the penal laws against papists, but after a journey to London,
concerted for the purpose of overcoming his scruples, to have entertained a
different view [Fountainhall’s Diary, 167.]—a view which, it is to be
feared, was produced more by the benignant smile of royalty, than by a
sudden accession of liberal principles. On the question of the applicability
of the disabling laws to the duke of York, he somewhat sophistically
maintained that "a commission to represent the king’s person fell not under
the notion of an office." [Burnet, i. 408.] But, if he chose to assist the
court in obtaining its ends by legal means, his former spirit returned on an
attempted stretch of arbitrary power, and he objected to the privy council’s
sanctioning a relaxation, in favour of the Roman catholics, becoming law,
through the mere royal prerogative. [Fountainhall, 192.]
This great man, whose talents
and courage would have adorned a better period, fell a victim to the fury of
one of those savages which misgovernment produces. He was murdered by John
Chiesley of Dalry on the 31st of March, 1689.
The determination to commit
the murder on the part of this man, arose from a dispute with his wife, the
latter claiming aliment for herself and ten children, and the parties
consenting that the claim should be settled by the arbitration of Lockhart
and lord Kemnay, who gave a decree appointing an annual sum out of
Chiesley’s estate to be paid to his wife. Infuriated at not being permitted
to deprive his wife and offspring of their daily bread, he formed the
resolution of taking vengeance on the president at whatever cost. On
communicating his intention to Mr James Stewart, advocate, he was answered
that "it was a suggestion of the devil, and the very imagination of it a sin
before God;" to which he replied, "Let God and me alone; we have many things
to reckon betwixt us, and we will reckon this too." The victim, it appears,
was informed of his intention; but he disdained precautions. The murderer
confessed that, when in London, he had walked up and down Pall-mall, with a
pistol beneath his coat, lying in wait for the president. The day on which
he consummated the deed was Sunday. He charged his pistol, and went to
church, where he watched the motions of his victim, and when Lockhart was
returning to his own house through the close or lane on the south side of
the Lawn Market, now known by the name of "The Old Bank Close," following
close behind him, discharged a shot, which took effect. The president fell,
and being carried into his own house, immediately expired, the ball having
passed through his body. Chiesley did not attempt to escape, and, on being
told that the president was dead, he expressed satisfaction, and said "he
was not used to do things by halves." He was put to the torture, and made a
full confession, and having been seen committing the act, and apprehended
immediately after, or as it is technically termed, "red hand" he was
summarily tried before the provost of Edinburgh, as sheriff within the city.
He was sentenced to have his right hand cut off while alive, to be hanged
upon a gibbet with the instrument of murder suspended from his neck, and his
body to be hung in chains between Leith and Edinburgh." |
