MACKENZIE,
(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.
|