against the law of Scotland! Whatever dissatisfaction has been evinced in Scotland, has arisen from two causes. First, from judges not being always appointed on purely judicial grounds. Perhaps more than one-half of all the corrections we have been obliged to undergo, has been owing to this one cause; and if this error be not corrected, all other remedies must prove vain. Secondly, from the reform of abuses or defects being too long resisted. But though reform became at last indispensable, its being called for was no proof that the country was dissatisfied with its great judicial landmarks, but exactly the reverse. Deducting a few ingenious persons, who have proceeded as if the only way in which they could evince their elevation above prejudice, was by showing how many changes they could make, the great mass of the intelligence of Scotland has adhered to the general fabric of our civil laws and institutions, with a confidence which is the best proof of their merit. Amidst all the speculations that have been invited or provoked, about legal forms, we cannot discover one, and certainly no respectable one, in which any thing has been proposed inconsistent with the preservation of the body of our law.

The only thing that disturbs us is some results that are produced by, and we are afraid are inseparable from, the appeal to the House of Lords. This appeal is in itself not merely expedient, but absolutely necessary. It corrects error; it excites attention; it checks carelessness; it exposes extravagance. Probably no part of the empire could do without it, and certainly Scotland could not. Accordingly, among all the persons who were examined by the Commission of 1823, and amidst all the host of opinions that were then given, there was no dissentient voice upon the subject. But nothing is perfect. The House of Lords, instead of being a scene for the review of great and difficult legal questions, which is its proper judicial purpose, has become, and will probably become still more so, a mere branch of the Court of Session, into which every case, however clear or trifling, is drawn. If this merely wasted the time of that House, or the money of unreasonable litigants, we should care less for it. But there are some misfortunes connected with this privilege, which have sometimes staggered even our strong faith in its being indispensable.

1. It is necessarily attended with great delay and expense. There are many cases in which the necessity of submitting to error is not a greater evil than that of getting it corrected by an appeal to a distant Court. As things are, no final judicial error committed in Scotland can be reviewed, except by an applica

tion to the justice, and an intolerable consumption of the time, of the House of Lords.

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2. Although Scotch causes be considered in the House of Lords with a degree of profound and anxious attention, which is of itself, by its example, a great blessing, how often has it happened that judgments have been pronounced plainly repugnant to the law of Scotland? This question (for we put it merely as such) could only be answered by a careful examination of a long train of cases. Nothing could be more useful than such a candid surof what the law of Scotland has gained, or has lost, by judgments in the House of Lords. Notwithstanding what we owe to that House indirectly, we are afraid that the result of such a retrospect is extremely problematical. And it is little or no detraction from the merits of any such Court, that it should occasionally err in its review of foreign law. The influence of feelings native to the judge, is nearly irresistible. Even though this only led to a few bad judgments, whether of reversal or of affirmance, it would be a misfortune, especially as judicial errors are always pernicious in proportion to the height of the place they proceed from. But,

3. The very subjection to review before foreign lawyers, has a strong tendency to lower the Court appealed from in the eyes of the country. Where this arises from bad decision in the Court below, it is right that it should suffer all that the correction of the decision implies. But where the affirmance is wrong, the rashness of the inferior Court is encouraged; and where the reversal is wrong, the weight of that Court is unjustly diminished. Lawyers may be able to appreciate judgments;-but the world at large is not. The world, therefore, looks merely to the result; and it gets that result, accompanied by any remarks which may have been used on the bench, or at the bar; which remarks must always be more efficacious when they are the last that the public hears. If a right of appeal were to be introduced from the King's Bench to the Court of Session, the confidence which even the English public has in the former, would not only be diminished in point of fact, but justly; because, all that it would know, would be, that so many of its judgments were reversed by the Court which the state had set up for their revision. They might get a deal of bad English law; but this bad law might be supported by plausible reasons enough; and, although their Court might growl, still so long as it was obliged to submit, and we had the last word, we would ultimately carry the public along with us. No one who has observed the effect of the appeal to the House of Lords, can have failed to perceive what a trial foreign review must always

expose any Court to, even when the Court appealed from is unquestionably right. The intervention of judges, who are strangers to the law they are reviewing, must always tend to shake the confidence of the people in their own tribunals; and, accordingly, it is notorious that appeals are habitually taken, even when there is no specific or sincere objection to the original judgment, merely for the sake of the chance. This, indeed, is the true source of at least one half of all the appeals that are taken.

Notwithstanding this, we do not point at any thing like an abridgement of the right of appeal. Such a measure might not be very hazardous to our law, but it might be fatal to our justice. But we are anxious about some checks which are calculated to diminish the bad incidents of this good thing. In particular, we apprehend, that the scheme of an intermediate Court of Appeal, which formed a part of the plan of the government of 1806, and would certainly have been realised, if that government had not been overturned, deserves the most serious reconsideration. The measure of that day was connected with various party views and personal objects, which are now forgotten, and was not brought forward in the shape most likely to secure either its success or popularity. But the strongest objections that were urged against it, were all founded on the constitution of the Court, and not on the principle of the plan. And no doubt, the manner in which such a court could, or should, be framed, is probably a more difficult question, than the expediency of having it; and, in considering the subject, these points ought always to be kept separate. We say nothing of the structure of the tribunal, except that, if the Lord Chief Baron be made a part of it, as he should, we see no necessity for the creation and introduction into it of a new judge, as was formerly proposed; and that, with this exception, the Court of Review might be what Lord Grenville called "an emanation" from the Court of Session. With respect to the scheme itself, it is some recommendation of it, that no less a person than Lord Grenville was decided in its favour;-that it was approved of by the Faculty of Advocates ;- and that it is agreeable to the analogy of England. The reasons for it, independently of authority, are to be found in the tendency of an interposed jurisdiction to alleviate the evils otherwise inseparable from any system of direct and immediate appeal to the House of Lords. The obvious objections to it are, the multiplication of courts,-the increase of expense to the suitors, who are obliged to go to the House of Lords at last; the tendency of any local Court of review to become a mere chamber of the Court of Session, and to require itself the corrective it is intended to administer; and the ineffi

ciency of any thing short of the very highest tribunal in the kingdom to impose due restraint on the Courts whose fallibility occasions the necessity for such means of checking it. These objections are all well founded; and, if not counterbalanced, are conclusive. But, are they not counterbalanced by the following advantages?

1. The preserving of the law, and the securing of consistency of judgment in the two divisions of the Court of Session, by having one standard, common and superior to them both. Nothing is more awkward or imperfect than the existing remedy, which consists in an occasional revival of the old Court, by a junction of its two departments. It is a remedy much resorted to by the House of Lords in its distress, because it is the only one that exists; but surely it would be better to prevent cases emerging there, unless they got up with all the law on their heads that the Court below could give them. 2. The maintaining the dignity and authority of the local institutions, by increasing the weight of their judgments, before the Court above could touch them. 3. The diminishing of appeals to the House of Lords, by rendering them more hopeless; and thus compensating, by a saving of costs upon the whole, for the additional expense laid upon those who will litigate to the last stage. These reasons are possibly insufficient; but undoubtedly a measure which has the precedent of England for checking the same evil, and was very nearly introduced here a few years ago, is at least deserving of grave consideration. If no appeal can be taken at once from the King's Bench or Common Pleas to the House of Lords, but every error committed by these courts has a chance of being corrected by an intermediate review, till at last it only reaches the Court of the last resort, with the importance implied in great interests, and the authority derived from the combined learning of all the judges;-why should it be competent to every Scotch litigant to fly to the House of Lords direct, whenever he fancies he has caught any division of the Court of Session at an advantage, or has a case in which he thinks it not hopeless to speculate on the contingencies of a foreign tribunal?

If the present system is to continue, we would suggest, 1st, That there should be a correction of those strange rules by which the necessary costs of an appeal are now given ;-the effect of which is, that groundless appeals are encouraged, and that, when they are well founded, justice cannot be obtained, except at a loss. 2dly, That causes shall be heard at such a season, and so continuously, that it is possible for Scotch counsel to attend. Nothing can exceed the talent or learning of the English bar. But law cannot be learned by instinct;

and an able man may make a clever speech, and yet leave it obvious to those familiar with the subject, that he has never come near the right feeling of it. 3dly, And above all, that due care be taken to provide an adequate judge for the court of review. The general idea has always been, that this individual shall be the Chancellor. The very fact of a person attaining that station, is a tolerable security that he must have a right judicial head. The reversals of such a man correct, while his affirmances support, the courts below. But all devices and arrangements, by which Scotch causes may be given over, as trash, to any inferior hand that can be found willing to engage with them, are dangerous. They not only injure the law, and defeat justice, but they increase the very evil of intolerable appeals, which these temporary schemes are generally intended to check. There is no device for increasing appeals, so certain of success, as that of multiplying the accidents on which their results depend.

There is one thing more which we earnestly hope. It is, that after the projected measures shall come into operation, we shall be let alone. Every thing that will be then done will have been right. But it will have been obtained at a fearful risk. For the last twenty-five years, we have scarcely ever had a breathing time of one year, and certainly never of three. The Scotch Courts have been set up as a target, at which every reformer has been invited to let fly his speculation.* No wonder

Nothing can show the effects of unsettling people's minds on such subjects more strongly than the wild projects which, even in this eleventh hour, men have been at the pains to invent and to print. One gentleman is for reuniting the courts, and for never letting the judges of the Court of Session employ juries. Yet he is fond of jury trial. Then he is for abolishing the Jury Court; which being done, he is for instantly restoring itonly calling it the Exchequer. Another thinks that it is a fit season for dispensing with the institution of counsel; whose duties he proposes shall be performed by the agent. A third is of opinion that the supreme court is scarcely necessary, as the whole law might be administered by juries, directed by resident sheriffs. A fourth recommends throwing open the Scotch bar to English counsel, who, however, are never to get up to the bench; while a fifth rather thinks that we should transplant a few fullgrown foreign judges at once. Against which it has been suggested by a sixth, (though this is certainly more deserving of attention,) that that assimilation of laws which is said to be so desirable, would be best effected by placing a few Scotch judges on the bench of England. Each of these schemes has found an honest and ardent patron. Our courts and our law have hitherto survived these Hydras, and Gorgons, and Chima'ras dire!'