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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 correctivo 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, Ist, 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 be 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 Chimæras dire !
that they have been pierced by a thousand arrows--some of them poisoned. Parliamentary Reports, Resolutions of Public Bodies, Statutes, Pamphlets, Acts of Court-have been hurtling in the air. No mortal institution can stand such an ordeal. Nothing remains to be done but that, in the appointment of judges, Government should act on the principles which have lately done it so much honour ;-and that time should be given to the system to work itself pure. The new Court of Appeal excepted, we know no other judicial reform that we look for. In a few years, the fog will be cleared away, and we shall be able to see where we are. Those who fret at every form that touches their particular case, will be taught that there are some things in courts that are fixed ; and that a rule may be quite right, though it happens neither to suit the interest nor the theory which they may be advocating at the moment. The Supreme Court and its members, freed from the fever of constant change, will be enabled to do their work firmly, and to bring the excellent law which they practise to still greater maturity.
Of the success of their career, when thus liberated, and acting in the view of a public of increasing intelligence, and now thoroughly instructed on judicial subjects, we can entertain no doubt. For the Bench of Scotland contains bright names ;-men under whom the duty of carrying judicial reformation into practice has as favourable a prospect as devotion to the cause, and great legal accomplishment, can ever give it. The Bar, besides professional learning and talent, is as splendidly adorned by general literature and by public virtue as any Bar upon earth. Criticisms have been made on the manner of both. We cannot venture to say how far either the censure or the praise of these critieisms is just. Probably both, at times. They must not be judged of merely by a standard taken from the accidental fashion or custom of any other place; but by their approximation to, or recession from, the things that form the universal excellences of the judicial manner. In a well-regulated place of justice, the courtroom is orderly and noiseless. The bench attends ;---or appears to do so. When it does not, the failure neither proceeds from indifference nor from impatience. There is much consultation before judgment;- little conversation during debate. The judges recollect, that the vices of counsel must always be generated by themselves ; because they are only practised from their supposed influence with the bench, and from seeing that the opposite virtues fail. The bar venerates good taste,-the only corrective of the defects naturally connected with the exercise of that profession. It therefore grudges the laurels that are sometimes be
stowed by the ignorant on certain vnlgar qualities, such as pertinacity or vehemence, which, though they may accompany success, can never, in a right court, be the cause of it. On ordinary occasions, when there is no call for a higher Alight, it appreciates brevity, calmness, and sense; virtues so essential amidst the bustle and distraction of legal war, that their presence renders even honesty more powerful, while their absence makes learning useless. To both bench and bar, in Scotland and everywhere else, we strongly recommend the attentive and repeated study of Bacon's little Essay (scarcely three pages) on • Judicature. It is a discourse which ought not merely to be suspended over the gate, but engraven on the heart, of every court of justice.
Art. VI.--Cloudesley; a Tale. By the Author of Caleb
Williams. 3 vols. 8vo. London. 1830.
W e find little of the author of Caleb Williams in the present
work, except the name in the title-page. Either we are changed, or Mr Godwin is changed, since he wrote that masterly performance. We remember the first time of reading it well, though now long ago. In addition to the singularity and surprise occasioned by seeing a romance written by a philosopher and politician, what a quickening of the pulse,—what an interest in the progress of the story,—what an eager curiosity in divining the future,—what an individuality and contrast in the characters,—what an elevation and what a fall was that of Falke land ;-how we felt for his blighted hopes, his remorse, and despair, and took part with Caleb Williams as his ordinary and unformed sentiments are brought out, and rendered more and more acute by the force of circumstances, till hurried on by an increasing and incontrollable impulse, he turns upon his proud benefactor and unrelenting persecutor, and in a mortal struggle, overthrows him on the vantage-ground of humanity and justice ! There is not a moment's pause in the action or sentiments: the breath is suspended, the faculties wound up to the highest pitch, as we read. Page after page is greedily devoured. There is no laying down the book till we come to the end; and even then the words still ring in our ears, nor do the mental apparitions ever pass away from the eye of memory. Few books have made a greater impression than Caleb Williams on its first appearance.