530
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 minis-
ter 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 pro-
clamation, 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 reputa-
tion 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 de-
barr'd, he was content, in a letter under his hand, to
oblige himself in those terms; but this letter not hav-
ing 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 cour-
age 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 cir-
cumstance, 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 Mac-
kenzie to be guilty of perjury, in having entered
before the rest; dispersing copies of the letter with-
out 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 vin-
dicating 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 con-
cise 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 com-
mittee 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 ven-
ality 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 acknow-
ledge 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 adher-
ence to one another was their only security. "1 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 en-
deavour 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. Notwithstand-
ing whereof," he continues, "they having been pur-
su'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 con-
fidants 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 pur-
suers would be blunted before it reacht them." Ac-
cordingly, 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," he 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 sub-
mission in December, 1675, and was re-admitted to
the privileges of his profession on the 28th of Janu-
ary, 1676.2 We have dwelt thus long on this inci-
dent, because it is one of the very few constitutional
1 With the petulant remarks on Lockhart, so plentifully
scattered through the above quotations, compare the following
published character of the professional abilities of his great
rival by Sir George Mackenzie, in his Eloquence of the Bar—
it would be difficult to conceive a more perfect picture of a
great forensic orator:—"Lockartius corpus alterum juris civilis,
alterque Cicero dici poterat. Illi etiam peculiare erat argu-
menta sua eo ordine disponere, ut tanquam lapides in fornice
alter alterum sustineret; quć ex improvise, dum oraret, ei
suggerebantur, prompta solertia indicabat, aptisque locis dis-
porrebat. Nihil ab eo abscondit j urisprudentia, et quamprimum
casus illi a cliente aperiretur, sua omnia, omniaque adversarii
argumenta retexebat. Iracundia, quć alios oratores turbabat,
eum tantum excitare solebat; vocem tamen latratu, vultumque
rugis deformabat."
2 Mackenzie's Memoirs, 267-310.