Session to try civil causes by juries, and from time to time to make the requisite regulations, it is certain that, long ere now, the institution would have become popular, convenient, and useful, or it would have been abandoned. But in Britain nothing can be done without a job. In 1806 the Whigs wished to job it, and, to do them justice, their plan was, in a considerable degree, of the reasonable kind now suggested, adding, no doubt, the benefit of various new lucrative posts. But they went suddenly out of office, and their opponents had gone too far in opposing their scheme, to find it easy at once to announce a change of opinion, and to turn round and adopt the job; for in those days political men had some narrow-minded scruples about such matters. After the lapse of a few years, Lord Chancellor Eldon found out that he might avoid some trouble by introducing Jury Trial into Scotland. It was convenient at the time to provide an office for an English barrister connected with Scotland; so the jury job, on a more narrow scale than formerly, was renewed. The whole plan was spoiled by this single circumstance of sending down an English barrister. If it had been possible for any man of that description to surmount all difficulties, the Right Hon. William Adam was that man: His high urbanity-his experience-learninglove of business-knowledge of the country, of which he was a native its manners-its dialect-its institutions in general, seeing he had even in his youth been enrolled as an advocate-all advantages were on his side. But he undertook an impossibility, that of rendering acceptable to us English forms, which in themselves were truly erroneous, of which the errors were palpable to Scotsmen, in consequence of their novelty, and to which, without renouncing their native sagacity, they could not be reconciled. He struggled on with wonderful vigour, surmounted difficulties which would have repelled any other man, and conducted trials in a manner that highly recommended himself, although not the system which he was endeavouring to introduce; for this plain reason, that his forms were all English-his prece dents in the management of these

forms were English-his juries were to play at Englishmen-the litigants were to do the same. Hence, in nine out of ten cases, litigants submitted to what they accounted injustice, rather than proceed before the new Jury Court.

It is now proposed to do at last what should have been done at first, that is, intrust Jury Trial to the judges of the Court of Session. But here, again, we are threatened with a new job, which threatens to make Trial by Jury in civil causes permanently defective and useless. Mr Adam was sent down to the Jury Court, Mr Abercromby has been sent down to the Court of Exchequer. Scotland is now regarded as a province-a colony, or something more subordinate, in which, however, there are some snug situations to which broken down statesmen may retire. Mr Brougham is also a Scotch advocate, although his practice in the law has been in the character of an English barrister. If he cannot get to the wool-sack, to the rolls, or something good in England, he seems to look to Scotland, and is represented as having suggested in Parliament, that it would be right always to send an English barrister to conduct the Scotch Jury Court. Mr Brougham is undoubtedly a man of whom Scotland, the place of his nativity, has cause to boast. But his suggestion and his plan (if it be his plan) is most pernicious. The effect of it must infallibly be, to prevent Trial by Jury from taking root in Scotland, because for ever fettered and discredited by the encumbrance of English forms. What Mr Adam could not perform, will never be accomplished by any talents, however brilliant, that have had the same preparation.

"Si Pergama dextra Defendi possent, etiam hac defensa fuis

sent."

We have, no doubt, got down English newspapers, containing an unaccountable libel on the Lord Advocate, so far as they represent him as stating in Parliament, that the Scots had been unwilling to receive Jury Trial, being wedded to old formsthat it was nevertheless introduced in 1815, but with caution, in a separate court-that, in 1819, it was found that Scotland was not so averse

It is extremely necessary that the community should seriously attend to the change now proposed to be inflicted on Scotland by the bill brought before Parliament relative to the Courts of Law. During the last twenty years one experiment after another has been made on the administration of justice here. Practitioners have no sooner learned the forms of court, than a new set of forms is introduced. Every alteration is styled, in its turn, a reform, and a high improvement; but still we are never made right, or see an established system. Alterations at the end of a century might be tolerable, but occurring as they now do every two or three years, a demonstration is afforded of ignorance of sound principles, and of folly or fidgety restlessness, on the part of go

vernment.

The principles of the new bill first reached us through the public press, in reports of the speeches of Mr Peel and the Lord Advocate, and the bill has at last reached us, after being withheld to the last moment. The object in view is said to be twofold, -to produce a saving to the national revenue, and to improve the administration of the law. For that purpose the offices of three judges of the Consistorial or Commissary Court, two Barons of Exchequer, two Lords of Session of the Outer House, and of the Judge Admiral, are to be abolished. Also clerks of court, to the effect of sweeping away eighteen public law offices. The Jury Court is also to be absorbed into the Court of Session, and the sittings of this last Court to be prolonged.

So far as economy or saving of money is concerned, there can be none immediately, because the dismissed judges are entitled to their full salaries for life. They are not legally removable, and therefore cannot be deprived of their emoluments. The Clerks of Court have similar claims. Nay, a greater expense must immediately be incurred, because it is unreasonable to require thirteen Judges of the Court of Session to do the duty of fifteen; and also of the Consistorial, Admiralty, and Jury Courts, and to reside

longer in Edinburgh than formerly, without granting to them an increase of salary. In regard to saving, the bill, therefore, is a gross, and even a very pitiful attempt at delusion, liable to instant and disgraceful exposure and confutation.

But it is said, that when the present men die out, there will be a saving to the nation of L.23,600. In this estimate, however, no account is taken of the addition which the remaining Judges expect.

Well, two courts of law are to be abolished, and we are to have eight fewer judges. This is avowedly done with a view to economy. It is said to be possible to dispense with their services, and therefore, to save expense, they ought to be dispensed with. Let it be supposed that this statement is correct, and consider its tendency and effect.

It has hitherto been the practice of every liberal prince, and of every enlightened government, to give encouragement and rewards to learning and learned men. In a civilized country especially, it is of high importance that the laws by which industry is protected, and our lives and liberties rendered safe, shall be studied and understood by a numerous class of persons. Judicial offices, liberally rewarded, have an effect upon the community totally independent of the services which the holders of them perform in their official functions as judges. They are prizes, to be gained by men of learning who devote themselves to the study of the laws of their country. Every situation of judge produces a considerable number of students-competitors for the prize which only one, however, can obtain. The establishment of Sheriffs and their substitutes, taken from the body of practitioners of the law, has diffused great intelligence among the provincial towns of Scotland. The number of judges in the capital has in like manner produced the competition of a numerous and learned body of professional men. Diminish the prizes to be gained in this department, and you diminish the number of competitors, and involve the community in consequent ignorance and inactivity.

In like manner, the Established Church of Scotland and the system of parish schoolmasters have effects totally different from the mere performance of divine service, or the instruction of children. Multitudes of parents of poor station, ambitious for their offspring, endeavour to procure for them the elements of literature, in the hope that they may attain to what they think eminence, or at least subsistence, by pressing forward to these offices, or to professorships in the universities. The greater number of young persons never follow out their original destination, or obtain the prizes, but the community is thereby rendered intelligent. These young men are enabled to struggle upward at home and abroad in the successful pursuit of fortune; and those who remain at home, display in the improvement of their native land, and in the conduct of its affairs, the effect of the encouragement given to every branch of literature.

The knowledge of the law ought, at all times, to be kept up in a free country, and diffused over the community. A small body of engineers, and other military men, may suffice, in the event of war, to train land forces-and so the army may, to some extent, be let down with safety in time of peace. But in peace and in war the constitution needs vigilant defenders, and the progress of a people in learning and intelligence ought never to be relaxed.

It is greatly to be feared that we have fallen into evil days. Like greedy and wretched usurers, we value every object by the pence that it costs. With boundless presumption and self-conceit we boast of our wisdom-the march of mind-the progress of intellect, and much other vain-glorious phraseology, expressive only of immeasurable vanity. When a man acts with blindness to his best - interests, or self-conceit and rashness, the common people of Scotland say, "he is left to himself,"-meaning thereby, that Divine Providence, to chastise his presumption, has withdrawn from him its protecting care. In the present times it may justly be said of Britain, that a judicial blindness seems to have descended upon the land-the Divine wisdom has left us to become our own scourge. We

VO!. XXVII, NO, CLXVI.

have forgotten what renders a nation truly great and powerful, and that man exists on this earth not to save money, but to attain to superiority, intellectual and moral. Every prize, that is, every judicial appointment, withdrawn from the law and learning of the kingdom, is, in so far, a discouragement to the liberal ambition of its youth, and a step towards the diffusion of darkness over the kingdom.

Government are said to act liberally in renouncing the patronage of judicial offices. The true description of the conduct of government is, that it lays hold of an excuse for withdrawing its patronage from learning and learned men. We have got a most illiberal government: if not illiberal, it is a most grossly ignorant government. Tell it not in Paris, in Berlin, or even at St Petersburg! What would Frenchmen, Prussians, nay, Muscovites or Turks, say of such policy? Why, that our prime minister Wellington may be a hero, fit to encounter hard blows, but must be utterly incompetent to rule a civilized community-that the subordinate manager of our civil affairs, Mr Peel, may have ordinary knowledge, but is surely destitute of wisdom as a statesman; and that our whole Cabinet must be an ignoramus -a disgrace to the great nation, which they are adopting means to degrade into barbarism. In such terms as these will the present project infallibly be described by enlightened strangers, and by the future historian.

When Scotland was a poor country, it could afford to support its present judicial establishment, because that establishment tended to promote the intelligence of the people, and thereby ultimately the prosperity and glory of the kingdom. Now that we are united to rich England, we are industriously hastening backward into the days of darkness and ignorance. A miserable sum, forming a drop or a grain of sand in the vast mass of revenue derived from Scotland, is made a pretext for letting down our national institutions, originally created, and successfully created, for the encouragement and patronage of learning. We may next expect to find government pulling down the Church,

3 c

and appropriating its revenues, on pretence of a saving of some pounds sterling.

The principle of this new bill, then, is in the highest degree worthless and contemptible, and founded on the most illiberal ignorance and narrow views. Nothing so utterly barbarous and unstatesmanlike has been proposed in Europe during the last two centuries. Scotland deserved better things of the British empire-but if such principles are to rule over Britain, it will speedily be no vain prediction or declaration, that the sun of its glory has set for ever. The sum to be ultimately saved, after eighteen healthy men have died, is said to be L.23,600; but has not the British Government, since the Union with Ireland, paid the police establishment of Dublin? The sum voted by Parliament for that purpose in 1828, was L.24,300. The miscellaneous estimates, as they are called, for Ireland, for charities, schools, &c., were for that year, L.238,546. For the internal improvement of Ireland, the sum was L.173,866. These were ordinary allowances; and here Edinburgh supports its own police, and there is to be squeezed and pared off from its judicial establishment, or its prízes for literary and scientific eminence, a sum less than is paid for the police of Dublin.

In the name of wonder, what good is to result to Scotland from a diminution of the number of its judges and courts of justice? By what political or rational principle is such a measure sanctioned? The suggestions said to have been made in Parliament will presently be attended to. In the meanwhile, let the details of the measure be considered. The Consistorial or Commissary Court performs two offices; the one ministerial, in granting confirmation (administration) of the effects of deceased persons: the other judicial, in trying consistorial causes. For the first of these duties, one of the four Commissaries is to be retained. Why this should be done, no mortal can tell. In all the counties in Scotland, except the Lothians, the duty in question has been devolved on the Sheriffs; and why the Sheriff should not perform the duty in Edinburgh, it is impossible to discover. So if the other three

Commissaries are to be dismissed, the retention of the fourth Commissary is an absurdity, so far as this matter is concerned. What other function he is to fulfil, is not very clear, for the judicial duty, we are told, is to pass to the Court of Session. If he is to act merely in taking proofs, which seems to be intended, nothing more absurd can be devised. A judge may with some success take proofs to be written down, but any other officer not paid by the litigants, would be a saucy, unmanageable, and intolerable nuisance.

But I decidedly object to the plan of transferring to the ordinary civil court, the duties of the Consistorial Court, more especially if the number of the judges is to be diminished. Consistorial causes (i. e. relative to marriage, legitimacy, and divorce) require more delicacy and deliberation in the preparation of them, than any others. The honour of individuals and of families is often involved in the discussion; and the succession to great estates frequently depends on the procedure. They are utterly unfit for the publicity and hurry of a jury trial. They are still more unfit in regard to public decency. In that respect, they are even unfit to enter the routine of the great civil court. They are governed by principles totally different from what occur in other judicial proceedings. We (in Scotland) hold that the absence of a defendant is in them of no importance. The party insisting in the action, must prove his case to the satisfaction of the court; and even the Bill admits this. The proof is at present conducted before one of the judges of the Consistorial Court, who, in cases of difficulty, may call in his brethren, and does frequently consult them. The peculiar nature of the law of Scotland, which allows the absolute dissolution of marriage for certain reasons, renders it necessary that such an establishment shall exist, separate from others, that nothing hasty, ill-concocted, or rash, may be done. The Court of Session, performing all the duties of the English courts of Chancery and Common Law, and much of what is done by the legislature, cannot safely be intrusted with the preparation of such cases. The plan now