MACKENZIE, SIR GEORGE

MACKENZIE, SIR GEORGE, a learned writer and eminent lawyer of Scotland, was the grandson of Kenneth, first Lord Mackenzie of Kintail, and the nephew of Colin and George, first and second Earls of Seaford. He was born at Dundee in 1636; and after passing through the usual course of education in his own country, he was sent to the university of Bourges, at that time denominated the Athens of lawyers, where he remained three years. Young Scotchmen intended for the bar, having no sufficient means of instruction in the Roman law at home, were then accustomed to frequent the university of Bourges, as in later times they repaired to those of Utrecht and Leyden. He was called to the bar in the year 1656, and had risen into considerable practice before the Restoration. In a sketch of an eminent advocate of that day, he has recorded his contempt for the

canting tone which then prevailed in the courts of law, and to which even the most learned advocates, whatever their own inclinations might have been, were obliged to conform.¹ Immediately after the Restoration he was appointed one of the justices-depute, criminal judges who exercised that jurisdiction which was soon afterwards vested in five lords of sessions, under the denomination of commissioners of justice; and, in 1661, he and his colleagues were ordained by the parliament "to repair, once in the week at least, to Musselburgh and Dalkeith, and to try and judge such persons as are ther or therabouts delate of witchcraft;" so much more urgent did they deem the punishment of that imaginary offence than of any other crime, however aggravated.

Mackenzie's name appears in the parliamentary proceedings as counsel in almost every cause of importance; and his connection in that character with the Marquis of Argyll gives no small weight to a passage in his Memoirs, respecting a circumstance in the trial of that nobleman, which has been the subject of much historical controversy. Between the years 1663 and 1667 he was knighted. He represented the county of Ross during the four sessions of the parliament which was called in 1669. In 1667, he had been appointed lord advocate in the room of Sir John Nisbet, whom he describes, in one place, as "a person of deep and universal learning," and of whom, in another, he says, that "in the conduct of causes he displayed the greatest learning and consummate eloquence."² By that preterit he was, unhappily for his character, implicated in all the worst acts of the Scotch administration of Charles II.; a system of misgovernment which has only had one parallel in the European portion of the British dominions. Having betrayed some repugnance, however, to concur in those measures which openly and directly led to the re-establishment of popery, he was removed from his office in 1686, and (which is not a little remarkable) reinstated in 1688, when such measures were still more avowedly pursued.

At the Revolution he adhered to the fortunes of his royal master. Being elected a member of the convention, he supported the pretensions of King James with courage and ability, against Sir John Dalrymple and Sir James Montgomery, who were the most considerable speakers of the Revolution party; and remaining in his place even after the imprisonment of Balcarras and the escape of Dundee, he was one of the minority of five in the memorable division respecting the forfeiture of the crown.³ King William had been solicited, by some eager partisans, to declare Mackenzie and a few others incapable of holding any public office; but he refused to accede to the proposal, in conformity to the maxims of that wise policy, which uniformly induced him not to concur in those measures, even of just retribution, which, at moments of violent internal change, are so apt to degenerate into proscription and revenge. At this critical juncture, when the crown, which one king was declared to have forfeited, was placed on the head of another, and when his own fortunes were in jeopardy, Sir George Mackenzie composed and delivered his inaugural address on the foundation of the library of the Faculty of Advocates; a circumstance evincing no inconsiderable degree of firmness and intrepidity. When the death of Dundee destroyed the hopes of his party in Scotland, he took refuge in Oxford, the natural asylum of so learned and inveterate a Tory. But, under the tolerant

government of King William, he appears to have enjoyed, Mackenzie in perfect security, his ample fortune, the fruit of his professional labours. In Evelyn's Diary (9th March 1690), we have an account of the freedom which he indulged in conversation at the table of a prelate who was a zealous supporter of the new government. "I dined," says he, "at the Bishop of St Asaph's, almoner to the new queen, with the famous lawyer Sir G. Mackenzie (late lord advocate of Scotland), against whom both the bishop and myself had written and published books, both now most friendly reconciled. He related to us many particulars of Scotland, the present sad condition of it, the inveterate hatred which the presbyterians show to the family of the Stewarts, and the exceeding tyranny of those bigots, who acknowledge no superior on earth in civil or divine matters, maintaining that the people only have the right of government, their implacable hatred to the Episcopal order and the Church of England. He observed, that the first presbyter dissents from our discipline were introduced by the Jesuits about the twentieth of Elizabeth; a famous Jesuit among them feigning himself a Protestant, and who was the first who began to pray extempore, and brought in that which they since called, and are still so fond of, praying by the Spirit."⁴

In the spring of 1691, Sir George Mackenzie went to London, where he contracted a disorder which carried him off. He died in St James's Street, on the 2d of May 1691; and his death is mentioned as that of an extraordinary person, by several of those who recorded the events of their time. His body was conveyed by land to Scotland, and interred with great pomp and splendour in Edinburgh; a circumstance which shows how little the administration of William was disposed to discourage the funeral honours paid to its most inflexible opponents. It may also be mentioned, to the honour of the government, that, whilst the censorship of the press still subsisted, he was allowed to publish his Vindication of the Government of Scotland under Charles II.; a very inadequate defence, it must be owned, but one, nevertheless, which a new prince, opposed by a powerful party in the state, had some reason to dread.

The writings of Sir George Mackenzie are literary, legal, and political. His Miscellaneous Essays, both in prose and verse, may now be dispensed with, or laid aside, without difficulty. They have not vigour enough for long life; but, considered as the elegant amusements of a statesman and lawyer, they afford evidence of the refinement of his taste and the variety of his accomplishments. In several of his moral essays, both the subject and the manner betray an imitation of Cowley, who was at that moment commencing the reformation of English style. Like his master, he wrote in praise of solitude; and Evelyn, in a confidential letter to Cowley, highly commends his merits as a writer. Nor would it be just to the memory of Mackenzie to refrain from mentioning the extraordinary praise bestowed on him by Dryden, the successor, but scarcely the superior, of Cowley, in English prose.

Sir George Mackenzie is one of the few British advocates who have published their speeches delivered at the bar. In Scotland these are often called "pleadings," and in England "arguments," when addressed to the judges on matters of law; but they retain the general name of "speeches" when addressed to a jury, or to any other popular body.

Mackenzie. Mackenzie's speeches evince considerable knowledge, ingenuity, and address, and are never very defective except in those passages which aim at eloquence. In the speech before the parliament for the Marquis of Argyll, the question, whether passive compliance in public rebellion be punishable as treason, is treated with no small ability.

His work on the Laws and Customs of Scotland in Matters Criminal was published in 1678, and is dedicated to the Duke of Lauderdale, to whom the author says, "You are yourself the greatest statesman in Europe who is a scholar, and the greatest scholar who is a statesman. You are the man who spends the one half of the day studying what is just, and the other half in practising what is so!" At that time the government of Scotland had no reason to complain of the want of base compliance in juries, not one of which, during the eighteen years that had elapsed since the Restoration, had ventured to rescue a single victim, however innocent, from the clutches of power. But, even in the midst of this apparent security, the acuteness of the Lord Advocate discovered the possibility that independent juries might one day arise; he augured integrity at a distance, scenting the approach of liberty in every refreshing gale; and hence, in the work just named, he openly proposes the abolition of juries in criminal causes.¹ His reasonings are ingenious and plausible. He tells us, that "now, when law is formed into a science, and that judges are presumed to be learned and assizers not, it seems reasonable they should be suppressed, as well in criminal cases as they already are in civil." The great and paramount benefit of juries in criminal cases, namely, their power of shielding innocent and virtuous men against the vengeance of power, is kept entirely out of view, though doubtless it formed the sole motive for the project.

The works of Sir George Mackenzie were published at Edinburgh in two volumes folio, in 1716 and 1722. In the second volume there appears the following advertisement: "Whereas in the list of the author's manuscripts there is mention made of an History of the Affairs of Scotland from the Restauration of King Charles II. 1660, to the [year] 1691, which subscribers might have readily looked for in this second volume; but that manuscript being in the hands of some of the author's relations, who think it not ready for the press until it be carefully revised, they have reckoned it more proper to have it printed by way of Appendix to this second volume, how soon they have it revised and transcribed by a good hand." For many years the History thus announced was supposed either to have perished or to have been intentionally destroyed. The second Earl of Bute, who supported the government of the House of Hanover, and had married the sister of John duke of Argyll, the leader of the Whig party in Scotland, enjoyed, in the year 1722, and probably possessed, his papers. It was not unnatural, therefore, that he should be suspected, at that juncture, of suppressing such a manuscript, more especially as his family, by conforming to the Revolution, and accepting a title from Queen Anne, had rendered themselves peculiarly obnoxious to the adherents of the House of Stuart. But, however plausible these conjectures may have appeared, they have, in part at least, been proved to be groundless. In the year 1817, a large mass of papers was sold to a shopkeeper in Edinburgh. From these his curiosity led him to select a manuscript volume which appeared to him to be something of an historical nature; and, by another fortunate accident, he communicated it to the late Dr. McCrie, who, on examination, discovered that it was the composition of Sir George Mackenzie, and formed part of that history of his

own times which had so long been a desideratum in Scottish literature. Of this the evidence was both obvious and complete; for the manuscript, though written by one of the ordinary transcribers of that age, was decisively identified by numerous corrections and additions in the well-known handwriting of Sir George Mackenzie himself. The curious fragment of Scottish history, thus happily recovered, was published at Edinburgh in 1821, 4to, under the editorial superintendence of Mr. Thomas Thomson, who, in an able and well-written preface, has related the singular circumstances in which the manuscript was rescued from destruction. It is to be regretted, however, that the portion thus published ends at the very time when the author's means of information became more ample. For many reasons, it would be highly desirable to possess the sequel of these Memoirs.² (A.)