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Scotland systematically; and perhaps the looseness and confusion which are imputed to this part of his writings, belong rather to the state of the subject, than to the fault of the writer. He introduced into the criminal law of his country one great reformation. Our law,' he says, allows the party accused a liberty to call in witnesses, who may depone for him upon oath against the King, which the law of England does not. And ⚫ this kind of exculpation was never allowed in Scotland till the reign of King Charles II.; the first act, which was the warrant thereof, having been made by Sir John Cunningham and Sir George Mackenzie, when they were criminal Judges. (Macken. Vind. of Cha. II. Gov. Works, II. 347.) It is obvious that, till witnesses could be examined on oath for a prisoner, they could not, and ought not to be believed; and that it was a mere mockery of justice to allow parties accused the pretended privilege of producing discredited witnesses. Some of those undistinguishing panegyrists of the law of England, who are its worst enemies, may perhaps be so ignorant as not to know, that this deviation from the first and most sacred principles of criminal justice continued to be a part of the English law (which they would have praised as warmly then as they do now) till forty years after the reformation effected by Mackenzie in Scotland. It can hardly be doubted, that if this abuse, which was thought intolerable by the Crown lawyers of Charles II. in. Scotland, were still part of the law of England, we should find as much zeal shown, and as much ingenuity exerted in its defence, as we have the mortification to see inlisted in the service of other iniquities equally flagrant.

Sir George Mackenzie's 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 in study

+ This privilege was granted to prisoners in cases of Treason, by the excellent statute 7 W. III. c. 3, and in Felony by 1 Anne, stat. 2. c. 9. s. 3. ;--a clause foreign to the general object of the Bill, and which probably stole its way into our legislation, so as to elude the watchful hostility of the friends of ancient injustice, and the advocates of established abuse. It was an ancient and commonly received practice,' says Blackstone, that as counsel was not allowed to any prisoner accused of a capital crime, so, neither should he be suffered to exculpate himself by the testimony of any witnesses.' --Comm. Book iv. c. 27.

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ing 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 any want of the most base compliance in Juries. It does not appear that, during the eighteen years which had passed since the Restoration, a single Jury had ventured to rescue any one victim, however spotless, from the fangs of power. But the acuteness of the Lord Advocate, even in the midst of this apparent security, discovered the possibility that independent Juries might one day arise. Applying the words of Mr Burke with a small variation to Sir George, it may be said, that he augured integrity at a distance, and snuffed the approach of liberty in every refreshing gale. In this work on Criminal Law, he openly proposes the abolition of Juries in criminal cases. (Part II. Title 23. Of Assizes.) 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 • supprest, as well in criminal cases as they are already in civil.' The grand and paramount benefit of Juries in criminal cases, their power of shielding innocent and virtuous men against the vengeance of power, is kept entirely out of view, though doubtless the sole motive for the project, and the quality which will always render the independence of Juries odious to those Crown lawyers who have the misfortune to be raised to high office under Governments which are maintained by force and fear.

The political conduct of Sir G. Mackenzie, and his political writings, which are a part of that conduct, are closely and inseparably connected with the consideration of the history now before us. We extract the important passage which relates to the trial of the Marquis of Argyll.

After the Marquess of Argyll had remained some time a prisoner in the tower of London, he was sent down by sea under the keeping of Major Grant, who had likewayes the Laird of Swintoun entrusted to him. Being arriv'd at Leith, they were conducted by a guard through the street of Edinburgh a foot: Argyll was cover'd; but Swintoun was discover'd, because he had been formerly found guilty of treason at Perth in anno 1651, for having join'd with the Usurper.

Upon the thirty first day of January, Argyll had a summons of Treason execute against him, by a herald in his coat; whereupon he petitioned the Parliament, that they would command Sir John Nisbet to undertake his defence; but he having refused, the Parliament did at last command Mr Robert Sinclair, Mr John Cunninghame, and Mr George M'Kenzie, to plead for him.

When we were brought to our first hearing, and enter'd upon the pannel, which was a high place erected near the entry, the Commissioner, who as all Commissioners use to sit in Parliament dis

cover'd, did upon his entry put on his hat, as the custom is when criminals are try'd. The Marquess did, in a long and a serious (rather than accurate) speech, represent his own condition most advantageously; in which, after he had enumerated all the favours that the last King and this had put upon him, he desired them to consider how improbable it was, that he would have entertain'd any design which might have tended to their dishonour; and intreated those who were capable to understand when these things for which he was challeng'd were acted, what was the carriage of all the kingdom at that time; and how both themselves and others were led on in these actions without any rebellious inclination; and intreated those who were then young to be charitable to their predecessors, and to censure sparingly those actions whereof they knew not all the circumstances: For oft-times the meanest circumstance will alter the nature of the action that attends it; in all popular and universal insurrections, communis error facit jus; et consuetudo peccandi minuit et crimen et pænam; and that he had been amongst the last who entered into the confederacy, and had taken the Covenant. As to what was done before the year 1651, he clothed himself with his Majesty's Indemnity, granted in the Parliament at Perth in anno 1651. As to what was done by him since under the usurpers, they were but common compliances wherein all the kingdom did share equally; and in doing thereof many had express allowances from his Majesty, who declared that he thought it prudence and not rebellion, for honest men to preserve themselves from ruin, and thereby to reserve themselves till God should show some probable way for his return: And amongst all those who comply'd passively, none was less favoured by the usurpers than himself; so that what he did was but self-defence; and being the effect of force, could not amount to a crime.

After this speech was ended, we desired that, seeing we pleaded for the Marquess by command from the Parliament in an action of treason, wherein some things might escape us which might be interpreted to be in itself treason, that what we pleaded or spoke might be no snare to us, and that the Parliament would be pleased to consider more our design than our words; which protestation was ordinarily admitted in such cases; and for clearing of the same, we produced that part of the Criminal Register wherein Balmerinoch's process is recorded. After this we were remov'd; and being again call'd for, we were told by the Chancellor that the Parliament would not admit that protestation, lest we might allow ourselves upon that pretext the liberty of speaking things prejudicial to his Majesty's government; and therefore desir'd us to speak upon our hazard.

After this his Lordship gave in a bill wherein he desir'd to be remitted to a trial before the Justice Court, seeing his process would require learn'd judges, being so intricate; nor was it presumeable that every gentleman or burgess could understand debates in law; nor were they his peers, and a nobleman should be judged by his peers. This bill was constructed to be a declining of the Parlia ment; and the Marquess was put to own it, or else to condescend

who had writ it, that he might be proceeded against. This puzzled him very much; and at last we own'd the paper; and after much debate, wherein we endeavour'd to justify it, the bill was refused, but we were excused. Another bill after this was presented wherein we desired the benefit of exculpation, and to lead witnesses to prove the Marquess' innocency: but both the term and form was then new, though now it be ordinary, and this desire was rejected. Whereupon our defences, with the Advocate's replies, our duplies, and his triplies, in writ, were fully read before the Parliament; and after some debate, the Advocate restricted his pursuits to such acts as were done since the year 1651; which was occasion'd by a letter procur'd from his Majesty, wherein he discharged the Advocate to insist against any man, except for deeds done since his Act of Indemnity granted in that year: Against which letter many exclaim'd, because it destroyed the hopes of the old cavalier party; and it was then reported that the letter had been surreptitiously procur'd by the Earl of Lauderdale, to secure his own friends, and was shuffled in amongst other papers when his Majesty was in haste.

The procuring of this letter, and some other accidents that had interven'd, did persuade the Commissioner and Officers of State, that the Earl of Lauderdale had now resolv'd to own the Marquess of Argyll as far as was possible: for though formerly Lauderdale, as a most zealous partizan of the Hamilton faction, had been a great enemy to Argyll whilst these two factions stood in opposition; and though Argyll and his party had decreed to have` seized upon Duke William Hamilton and him, who certainly had been executed in anno 1649, if the Lord Balmerinoch, who was upon the plot, had not sent him a secret advertisement to flee to Holland immediately [upon the receipt of his letter: with which he sent him likeways 200 pieces of gold, because they behov'd not to stay to provide themselves if they wanted: to requite which contrivance] Lauderdale had passionately oppos'd the intended marriage betwixt the King and Argyll's daughter; yet Lauderdale being now rais'd above all hazard of his opposition, and being desirous to lessen Middletoun and to oppose whatever he own'd, did many good offices to the Marquess: and some ascrib'd this assistance to the respect he had still to the good old cause, for which the Marquess mainly suffer'd, and to the intercession of the Lord Lorn, who had married the Countess of Lauderdale's neice, and who stay'd at court to manage his father's business. To balance all which, the Commissioner did send the Earls of Glencairn and Rothes commissionated, as was pretended, by the Parliament, to represent to his Majesty what they had done in his service; but the true design was, that they might oppose all applications that should be made in favours of the Marquess of Argyll and I remember that the Marquess hearing of the Commission, did immediately conclude himself destroy'd, and his conjecture was very well founded; for Glencairn did daily incense the Duke of Albemarle and the Chancellor of England, and Rothes, who was very intimate with Lauderdale and knew very well how to manage his humor, did much lessen

Lauderdale's kindness to the Marquess, by representing to him how violently Argyll had persecuted him formerly; what new trouble he might bring to his Lordship's affairs, if he escap'd; and that all his endeavours would at last prove ineffectual, and so it was not prudence to engage too far in a desperate quarrel.

The relevancy of the Articles being discussed, probation was led for proving the late compliance after the year 1651, and his accession to the King's murther, which was excepted out of the letter; and though very many witnesses were adduc'd, yet some thought the probation not full enough. But after the debate and probation was all closed, and the Parliament ready to consider the whole matter, one who came post from London knockt most rudely at the Parliament door; and upon his entry with a packet, which he presented to the Commissioner, made him conclude that he had brought a remission, or some other warrant, in favours of the Marquess, and the rather because the bearer was a Campbell. But the packet being opened, it was found to have in it a great many letters which had been directed by the Marquess to the Duke of Albemarle when he was General in Scotland, and which he reserv'd to see if they were absolutely necessary: and being by these diligent envoys advertised of the scantiness of the probation, he had sent them post by M'Naughton's servant. No sooner were these produced, but the Parliament was fully satisfied as to the proof of the compliance; and the next day he was forefaulted, and the manner of his execution was put to the vote; and being stated, " hang," or "behead," it was concluded that he should be beheaded, and that his head should be placed on the tolbooth where Montrose's head had formerly stood. The Earl of Crawfurd, being then President in the Chancellor's absence, desired him to kneel and receive his sentence, which he did; and after it was pronounced, he said that he remember'd that he had put the first crown upon the King's head, (meaning at his coronation in Scotland ;) and that he hop'd God would bestow upon him a crown of glory, for he always wish'd the King well. He cited likewise that law made by Theodosius, wherein, because he had condemn'd some persons rashly, he therefore ordained that for the future no person should be executed to the death till 30 days after it was pronounced; and therefore craved some time. This he desired because he expected his second son Lord Neill, who was lately gone to court, would procure at least some respite for him. The Parliament seem'd much affected with this great revolution of fortune, and his own carriage, which drew tears from his very enemies; yet by a vote, all delays were refused, and he sent to the tolbooth amongst the ordinary prisoners; from whence he was brought to the cross of Edinburgh upon the 27th day of May 1661. *

*We omit the dying speech, which does not substantially differ from that which has been frequently printed, and is to be found in the State Trials.