Mackenzie, George (1636-1691) (DNB00)

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MACKENZIE, Sir GEORGE (1636–1691), of Rosehaugh, king's advocate during the period of the covenanting persecution, and known in Scottish covenanting tradition as the 'Bloody Mackenzie,' eldest son of Simon Mackenzie of Lochslin, Ross-shire, brother of George Mackenzie, second earl of Seaforth [q. v.], by Elizabeth, daughter of Peter Bruce, D.D., principal of St. Leonard's College, St. Andrews, was born at Dundee in 1636. Having completed his studies in Greek and philosophy at the universities of St. Andrews and Aberdeen, he went abroad before reaching his sixteenth year, and studied civil law at the university of Bourges in France. Returning to Scotland he was called to the bar at Edinburgh in January 1659, and after the Restoration he was readmitted in April 1661. All through life he manifested a continuous devotion to literary pursuits, but these were not permitted to interfere with his professional duties. His rise to eminence at the bar was exceptionally rapid. If in solid legal accomplishments he had several superiors, few excelled him in ready eloquence, or the adroit use of legal technicalities. In the earlier part of his career his sympathies were with the popular party rather than with the government; and in his 'Religious Stoic,' 1663, he declared that in contemplating the history of Christianity his heart bled when he considered 'how scaffolds were dyed with Christian blood, and the fields covered with the carcases of mutilated Christians.' In 1661 Mackenzie distinguished himself by the boldness of his defence of the Marquis of Argyll in his trial before the commission of the estates. Shortly afterwards he was appointed a justice-depute, or judge of the criminal court. Entering parliament in 1669, as member for the county of Ross, he made himself conspicuous by his persistent opposition to the policy of Lauderdale. When, in reply to the letter of the king at the opening of parliament, a proposal was brought forward for an incorporating union with England, Mackenzie moved the adjournment of the debate, and he afterwards moved that the house agree to a commission on union 'under such reservations as the Parliament should think necessary.' He denied, however, that his object was to defeat the union: what he wished to defeat was a too hasty decision. But his politic attitude irritated rather than mollified Lauderdale, who carried bis resentment so far as to meditate unseating him on the plea of his not being a freeholder. Lauderdale was only restrained from carrying out his purpose by the urgent persuasion of Sir Archibald Primrose (Mackenzie, Memoirs, p. 173). Mackenzie's principal rival at the bar was Sir George Lockhart [q. v.], and their personal relations gradually became very bitter. Originally Mackenzie — probably from ternart when he and others were in 1674 debarred from pleading, on account of their appealing from the court of law to parliament; but he gradually changed his attitude towards the dispute, and it was chiefly through his influence and persuasion that the members of the bar were ultimately induced to give in their submission to the government (ib. pp. 267-810). His opinion was that they had stood out long enough to save their self-respect; but the terms of the surrender entirely dispose of such a plea. The incident is, however, chiefly notable as marking a turning-point in the career of Mackenzie. The service he had rendered to the government met with special appreciation; he received the honour of knighthood; and henceforth he became the strenuous supporter of Lauderdale and the king. On 23 Aug. 1677 he was, on the dismissal of Sir John Nisbet [q. v.], appointed king's advocate, and on 4 Sept. he was admitted a privy councillor.

On his accession to office Mackenzie found the gaols full of prisoners who had been left untried by Nisbet, chiefly because he had' not been bribed either to prosecute or release them. These he set at liberty; and while under his direction the prosecution of the covenanters was more ruthlessly pursued, strict legal formalities were much more scrupulously observed, one of his first cares being to frame certain rules by which greater precision was required both as to time and place in drawing indictments. Still his acts did not differ materially from those of his predecessor in office; and when in 1679 William Douglas, third duke of Hamilton [q. v.], headed a deputation to complain of the illegal character of Lauderdale's administration, Mackenzie defended it, if not successfully, at least to the satisfaction of the king.

With the battle of Bothwell Bridge, in June 1679, the covenanters were treated with a great increase of severity, and Mackenzie soon earned among them the epithet of 'Bloody.' He was perhaps primarily responsible for the policy pursued. It was to him the government looked both for the legislative enactments appropriate to the special circumstances and for the relentless and ingenious application of the law to the cases of individual offenders. While Graham of Claverhouse was the main agent in the discovery and apprehension of suspected 'malignants,' Mackenzie made sure that none whom there was good reason to believe guilty should escape the prescribed penalties. 'No king's advocate,' he himself declared, 'has ever screwed the prerogative higher than I have. I deserve to have my statue placed riding behind Charles II in the parliament close.' In February 1680 he also boasted to the Duke of Lauderdale that he had 'never lost a case for the king' (Lauderdale Papers, iii. 192). As he had the principal charge of the government prosecutions, he must be held chiefly responsible for the introduction of torture to extort the truth from suspected persons, and in his 'Vindication' he specially defended its use, while he displayed an almost savage gusto in wielding its terrors. His overmastering temper could not brook opposition, and frequently tempted him to unseemly violence. On one occasion he threatened a specially taciturn prisoner that if he did not speak he would 'tear out his tongue with a pair of pincers.' Nor was the high rank of a prisoner any guarantee of the observance of the outward forms of civility. Even at the death of John Campbell, first earl of Loudoun (1598-1663) [q. v.], his wrath led him to exclaim, 'Has the villain played me this trick ' (to die before being forfeited); and when Lady Loudoun presented a petition praying for mercy for herself and children, he snatched it out of her hands, tore it to pieces, and threw it out of the window (Hist. MSS. Comm. 4th Rep. p. 682). In the persecution of 'fanatics' he strained every legal device to secure a conviction. One of the most scandalous cases connected with his name was that of James Mitchell [q. v.], at his second trial for an attempt on the life of Archbishop Sharp; and it was the more indefensible, because Mackenzie, having been his counsel at the first trial, was fully aware of the circumstances which had induced him to make confession. But a still more flagrant instance of straining the law to secure conviction was the prosecution of the Earl of Argyll in December 1681 for lease making, on account of a reservation he had made in taking the test [see Campbell, Archibald, ninth Earl of Argyll]. On this charge Argyll was sentenced to death and forfeited; and when afterwards he was apprehended in 1685, after an abortive attempt to promote a rising in Scotland, Mackenzie advised that he should not be tried for rebellion, but that, 'to do him a favour,' the sentence of 1681 should be enforced.

In September 1680 Donald Cargill [q. v.] the covenanter took it upon him to pronounce solemn sentence of excommunication against the king, Mackenzie, and others; and as a consequence a large reward was offered for his apprehension, with the result that he was executed on 25 July 1681. In 1682-8 Mackenzie assisted Claverhouse in bringing about the legal overthrow of the Dalrymples. In 1684 the covenanting prosecution underwent a new phase owing to the published threat of Renwick and others to retaliate on their prosecutors 'according to our power and the degree of their offence.' Mackenzie replied with the enactment 'that any person who owns, or will not disown the late treasonable declaration on oath, whether they have arms or not, be immediately put to death, this being done in the presence of two witnesses, and the person or persons having commission to this effect.' The enactment inaugurated the period known as the 'killing time.' After the passing of the act, 17 Aug. 1686, abrogating the penal laws against the catholics, Mackenzie resigned his office of king's advocate, and for a short time acted as counsel for covenanting prisoners, whom his own enactments had helped to bring within the grasp of the law. In February 1688 he was, however, again restored to his office, and he held it till the revolution.

Mackenzie attended the meetings of the Convention parliament at Edinburgh in March 1689. Along with Claverhouse he made a special complaint to the convention that a plot had been made to assassinate him, but no definite proof of this was forth- coming. He was employed in addressing the convention, 'pathetically lamenting the hard conditions of the estates at once commanded by the guns of a fortress and menaced by a fanatical rabble' (Macaulay, History of England), when worn was brought that Graham of Claverhouse was marching out of Edinburgh by the Stirling road; and Mackenzie and other prominent Jacobite members were detained in custody until it was seen that Claverhouse had left the city. He spoke against the resolution depriving James II of the crown, holding that his acts were protected by the declaration of parliament that he was an absolute monarch. With four others he also remained to vote against the resolution (Balcarres, Memoirs, p. 35). Shortly afterwards he went to England, and in May wrote a letter to George Melville, first earl Melville [q . v.], from Knaresborough, in which he stated that 'hearing surmises of what was designed against us I left the place, but openly;' and affirmed that all he sought was 'a pass for my health, and a delay till matters settle' (Leven and Melville Papers, p. 32). Some attempt was made to secure punishment for absenting himself (ib. pp. 63, 58), but by definitely withdrawing from Scotland and from public life he partly disarmed his enemies, and no proceedings were taken against him. By a grace passed in June 1690 he was admitted a student of Oxford University. He died at Westminster 8 May 1691, and was buried in Old Greyfriars churchyard, Edinburgh. A portrait of Mackenzie, by Kneller, is in the Advocates' Library, Edinburgh. It has been engraved by Bengo, Vanderbanck, and Richardson. There are two copies, one by Bengo, in the National Portrait Gallery, Edinburgh.

Mackenzie's career as public prosecutor can only be defended on the supposition that in law, as well as in love and war, 'all things are fair,' His eager interest in constitutional history, and his overbearing temper, are partly accountable for his misuse of legal forms to obtain convictions; and his hatred of religious fanaticism seems also to have itself verged on fanaticism. The one redeeming feature of his character was his devotion to literature and learning. He was practically the founder of the library of the Faculty of Advocates. In 1680 he drew attention to the heavy arrears of entry money due by advocates; and he proposed to recover and spend the money in the purchase of books on law. The proposal, however, remained in abeyance until 1682, when he was chosen dean of the Faculty of Advocates. At his suggestion the judges passed an act of sederunt by which any advocate failing to pay the arrears of his entry-money might be expelled from the profession. A house was then taken on lease, and the treasurer of the faculty was directed to buy 'all the Scottish Practicks as also the Scottish historians,' One of Mackenzie's last acts before he left Edinburgh; was on 15 March 1689 to deliver an inaugural Latin oration at the opening of the library. The poet Dryden, who had several conversations with Mackenzie, refers to him, in his 'Discourse on the Origin and Progress of Satire,'as the 'noble wit of Scotland, Sir George Mackenzie' (Works, ed. Scott, xiii. 111). He was celebrated for his social gifts at the parties at Holyrood House; and in the catalogue of the ghastly revellers in Redgauntlet Castle he is described as the 'Bloody Advocate Mackenzie, who for his worldly wit and wisdom had been to the rest as a god, Burnet, admitting that he was 'a man of much life and wit,' affirms that he was neither 'equal nor correct in' Nisbet's place as lord advocate (Own Time, ed. 1838, p. 275). 'He has,' he adds, 'published many books, some of law, and all full of faults; for he was a slight and superficial man.' Burnet's criticism leans towards severity, but undoubtedly Mackenzie's gifts were more specious than solid. His reflections are commonplace, and his style, though ornate and rhetorical, is cold and tame. His intellectual outlook was narrow, and in dealing with historical facts he was the slave of prejudice.

Mackenzie's works are: 1. 'Aretina, or the Serious Romance,' London, 1661; an Egyptian story, laborious and stilted in style and destitute of personal interest. 2. 'Religio Stoici; the Virtuoso or Stoick with a friendly Address to the Fanatics of all Sects and Sorts ' [anon.], Edinburgh, 1663. 3. 'A Moral Essay; preferring Solitude to Public Employment,' Edinburgh, 1665; London, 1685; answered by John Evelyn (1620-1706) [q. v.] in 'Public Employment and an Active Life preferred to Solitude and all its Appanages,' 1667. 4. 'Moral Gallantry; a Discourse proving that the Point of Honour obliges a Man to be Virtuous,' Edinburgh, 1667, London, 1821. 5. 'A Moral Paradox proving that it is much easier to be Virtuous than Vicious, and a Consolation against Calumnies,' Edinburgh, 1667, 1669; London, 1685. 6. 'Pleadings on some Remarkable Cases before the Supreme Courts of Scotland since the Year 1661. To which the Decisions are subjoined,' Edinburgh, 1672. 7. 'A Discourse upon the Laws and Customs of Scotland in Matters Criminal,' Edinburgh, 1674, 1678, 1699. 8. 'Observations upon the XXVIII Act, 23rd Parliament of King James VI against Bankrupts,' &c, Edin- burgh, 1675. 9. 'Observations upon the Laws and Customs of Nations as to Precedency. With the Science of Heraldry treated as part of the Civil Law of Nations,' Edinburgh, 1680. 10. 'Idea eloquentiæ forensis hodiernæ una cum actione forensi ex unaquaque juris parte,' Edinburgh, 1681; translated into English by R. Hepburn, under the title 'An Idea of the Modern Eloquence of the Bar,' Edinburgh, 1711. 11. 'Vindication of His Majesty's Government and Judicature in Scotland' [anon.], Edinburgh, n.d.; reprinted London, 1683. 12. 'Jus Regium, or the First and Solid Foundation of Monarchy in General and more particularly of the Monarchy of Scotland; against Buchanan, Naphtali, Dolman, Milton,' &c., London, 1684 and 1685. 13. 'Institutions of the Laws of Scotland,' Edinburgh, 1684; London, 1694; Edinburgh, 1706; with notes by John Spottiswoode, 1723; revised by Alexander Bayne, 1730, 8th edit. 1758. 14. 'On the Discovery of the Fanatick Plot,' Edinburgh, 1684. 15. 'A Defence of the Antiquity of the Royal Line of Scotland, in answer to William Lloyd, Bishop of St. Asaph, with a True Account when the Scots were governed by the Kings in the Isle of Britain,' London, 1685. The work defends the mythical line of Scottish monarchs, in which Mackenzie's belief was so devout, that he declared that if its attempted refutation had been perpetrated in Scotland, it would have been his duty as lord advocate to prosecute the offender. 16. 'The Antiquity of the Royal Line of Scotland further cleared and defended against the exceptions lately offered by Dr. Stillingfleet in his "Vindication of the Bishop of St. Asaph",' London, 1686. Translated into Latin under the title ' Defensio Antiquitatis Regum Scotorum prosafiæ, contra Episcopum Asaphensem et Stilingfletum, Lat. versa a P. Sinclaro,' Utrecht, 1689. 17. 'Observations on the Acts of Parliament made by King James I and his Successors to the end of the Reign of Charles II,' Edinburgh, 1686. 18. 'A Memorial to the Parliament by two Persons of Quality' (the Earl of Seaforth and Mackenzie), London, 1689. 19. 'Oratio Inauguralis habita Edinburghi, de Structure Bibliothecæ Juridicæ,' &c, London, 1689. 20. 'Reason; an Essay,' London, 1690 and 1695; translated into Latin under the title, 'De Humanæ Rationis Imbecillitate, ea unde proveniat et illi quomodo possimus mederi, liber singularis editus & Geo. Graevio,' Utrecht, 1690; Leipzig, 1700. 21. 'The Moral History of Frugality and its Opposite Vices,' London, 1691. 22. 'A Vindication of the Government of Scotland during the Reign of King Charles II; with several other Treatises referring to the Affairs of Scotland,' London, 1691. 23. 'Method of Proceeding against Criminals and Fanatical Covenanters,' 1691. 24. 'Vindication of the Presbyterians of Scotland from the Malicious Aspersions cast against them,' 1692. 25. 'Essays upon Moral Subjects,' London, 1713. 26. 'Consolations against Calumny,' n. p., n. d. 27. 'Cælia's Country-house, and Closet, a Poem,' first published in his 'Collected Works,' 28. 'Paraphrase of the 104th Psalm,' first published (ib.) To the Royal Society of London he communicated two papers, 'On a Storm and some Lakes in Scotland' (Phil. Trans. Abridgment, 1679, ii. 210), and 'Some Observations made in Scotland' (ib. p. 226 His 'Collected Works,' edited with 'Life,' by Ruddiman, appeared at Edinburgh, in 2 vols., in 1716-22. 'Aretina' and the 'Fanatick Plot' are omitted in the 'Collected Works.' His 'Memoirs of the Affairs of Scotland' appeared in 1822. They were submitted to the Duke of Lauderdale for his revision (Lauderdale Papers, iii. 219-20). A 'Collection about Families in Scotland from their own Charters, by Sir George Mackenzie,' is among the manuscripts in the Advocates' Library, Edinburgh; and in the catholic college of Blair is a 'Genealogy of Families of Scotland,' collected by him (Hist MSS. Comm. 2nd Rep. App. p. 201).

[Life prefixed to Collected Works; Mackenzie's own Memoirs; Lauder of Fountainhall's Decisions, Historical Notices, and Historical Observes, Balcarres's Memoirs, and Leven and Melville Papers (all Bannatyne Club); Burnet's Own Time; Wodrow's Sufferings of the Church of Scotland; Dalrymple's Memoirs of Great Britain; Napier's Memorials of Dundee; Omond's Lord Advocates of Scotland.]

T. F. H.