Cockburn's Memorials. November, gene thrown away upon schemes vain, purpose-by a greater number of persons than could less, and frantic, were gathered up and turn- be found in any other street in Europe. Of ed into pursuits which have covered the bar- course this contiguity produced an easy famiren heath with verdure, and exhibited to the iarity and a homely friendliness among neigh world the spectacle of a people enjoying the bours. To read sketches of that old society, is utmost freedom, with the most profound now to read of things as strange to this submission to the law. practical improvement, material wealth and Much of it came from our intercourse with In the course of ration as the customs of a foreign people. substantial freedom, Scotland has far out- France, from which Scotland derived a great stripped nations who could boast of a more portion of her laws. Much of it was native congenial sun, and more fertile territory,and she has the more reason to pursue her it had a local origin. Huddled together, onward progress, when she sees the pros- within such a narrow space, the inhabitants -the growth of public events; and much of trate condition of other peoples, who, with of Edinburgh were acquaintances and friends; less of liberty, were once more formidable and thus the cultivation of the higher society rivals; and, with less experience, were bet- inter-penetrated and influenced even the lowter versed in the art of government. Edinburgh, of course, as the capital, felt tion of a people are far beyond the mass who most prominently the successive changes are doomed to labour, or, as middlemen, are est. In the ordinary case, the educated porwhich have swept over the country. The engaged in reselling the products of the craftsseat of government-the great focus of the men's industry. They appear frequently to law, and engrossing generally the best edu- be, not merely persons of a different nation cational talent by her university chairs, she but of a different race. long held a pre-eminence-sadly diminished retired to the Mons Sacer at Rome from the in our time. Before the building of the oppressions of the Patricians, and the AtheThe Plebeians who New Town, Edinburgh consisted of but one nian cobbler who listened to Demosthenes, principal street, running along the ridge of spoke Latin and Greek no doubt very badthe hill, leading from the Castle rock, under ly. To Cicero and Demosthenes they might which the houses cowered for protection. with difficulty be intelligible. And so it has From this street diverged others of inferior mark, covering an area, the smallest upon which the capital of a nation, settled for many centuries, had ever been built. Now, when Edinburgh has sunk down into the character of a provincial town, outstripped in population daily by towns that yesterday were hamlets, inhabited by no wealthy class, and deserted by her native nobility, she yet retains in the magnificent panorama of natu- every people, the history of one is the hisral scenery around her-a source of attrac- tory of the rest. Thus it is that up to a certain stage of tion that no change of manners, fluctuations characteristic of the Scottish Highlanders, of trade, or imperial legislation can ever was observed by Bruce, as a peculiar cusWhat Macaulay states as destroy. The architecture of the New Town tom among the savages of Abyssinia. The may be, as Mr. Ruskin tells us, monotonous characteristics ascribed to a nation, are up and in the worst taste; but he has only to that stage peculiar and personal to a class, to recover from the shock-to lift his eyes and not general and applicable to the whole and view one of the most magnificent pic- community. The best-known men of a tures of landscape scenery with which the country, the most prominent spirits of the lover of nature was ever gladdened;-hills age in which they live, are erroneously and sea all around, followed by rich and selected as the types of a whole people; from cultivated plains, terminated in the far hori- the mass of whom they differ in the degree zon by the dark, abrupt, and barren moun- in which Sir Isaac Newton differed from one tains of the Highlands. of Lovat's gillies. But there are times when, been with people of the same epoch at particular periods of their history. The difference was the same and of the same character between Macaulay's Highlander, who made his savage breakfast from the uncooked blood he had drawn from his cows, and the contemporary philosophers and literati who have made their names immortal. In Cockburn's younger days, the popula- although French history reads liké Scotch, tion of the capital was congregated within the epoch or the event inevitably comes, the Old Town, crowded in the lofty tene- which sends the nation away upon its own ments which now give an air of picturesque peculiar track, and leavens the whole mass and medieval grandeur to the deserted quar- of the people with an impress which gives ter; not one, but oftener twenty or thirty them a character of their own. families of the higher classes of society bur- ing event that has stirred up society from rowed tier upon tier, so that the High Street its depths, some great crisis that has evoked Some strikof Edinburgh in those days was inhabited the passions or aroused the torpid attention of the most miserable serf whose fate con- | at home and alone. It is always some signed him to a life of isolated labour, gives scene of domestic conviviality either in my a direction and a bias which, of course, in- own house or in a friend's." And this is dividual minds had begun, but which it re- the man who can envy the bibulous capacity quires little of individual interference to of ancient Hermand, and that older school. retain. Here is a solution of Cockburn's scanty law. But the peculiarities of Edinburgh society" When," said Sydney Smith, writing from were such, that the broad line which marks his Yorkshire parsonage many long years off one order of minds from another, was after he had bidden Edinburgh farewellmuch obliterated. The professor found in" when shall I see Scotland again! Never the humble caddie of the street corner an in- shall I forget the happy days I passed there telligent and rational being, for whom edu- amidst odious smells, barbarous sounds, bad cation did something, but for whom local suppers, excellent hearts, and most enlightpeculiarities did more. Bartoline Saddle- ened and cultivated understandings." tree, with his scraps of Latin and of legal (Smith's Life, vol. ii. p. 115.) And they wisdom, was a type of not a few of the were the most hospitable of men. They Edinburgh shopkeepers. People lived hud- judged a man over his meals. "Here's dled together in such a way that it was im- a new man of genius arrived; put on the possible to preserve that absence of famili- stewpan; fry away; we'll soon get it all arity which separates so widely class from out of him." Such was Sydney's pithy class, in feelings and mode of thought. The view of it, as Moore records in his Memoirs. lady of fashion in those days had her house We have fallen upon an iron age since in the third story of the tenement in which Saddletree had his shop; and it was difficult to inspire the mercantile mind with awe of the ancestral greatness or lofty position in life of his customer,-all whose vulgar wants and necessities were satisfied at his own door, and whom he familiarly met upon the common stair which took him, when his shop was shut, to his own dwelling in the thirteenth story. then. We have, at least,-if we have not weaker heads,-undoubtedly more imperfect digestions, and contrive now to crush into one feast, over which dulness and formality preside, as much of eating and drinking, as would have procured for Cockburn and his merry set those delightful suppers for a twelvemonth. We have got rid, however, of filth. A man may pass through the Edinburgh Sydney Smith and Cockburn dwell with wynds, even in the lowest quarter, without rapture upon the joyous entertainments of fear, as Doctor Johnson found it, of seeing Edinburgh suppers; and Cockburn mourns his full flowing periwig moistened into flacover the revolution that has chased from cidity. It is an event now to hear of that civilized society what "has immemoriably which half a century ago was common. It been a favourite Edinburgh repast.' He is not the rule now for a gentleman to get sadly says, "that it is now falling into pal- drunk, even though he does not mean to retry wine and water in many houses. Sup- join the ladies; and if he does go to a tav per is cheaper than dinner; shorter, less ern, he preserves his fame for manliness even ceremonious and more poetical. The busi- when he maintains his sobriety. Yet, says ness of the day is over, and its still fresh Cockburn, "To get drunk in a tavern seemed events interest; it is chiefly intimate asso- to be considered as a natural, if not an inciates that are drawn together at that fami- tended, consequence of going to one. Swearliar hour of which night deepens the social-ing was thought the right, and the mark of ity. If there be any fun, or heart and spirit in a man at all, it is then, if ever, it will appear. So far as I have seen social life, its brightest sunshine has been in the last repast of the day." But what of the morning headache! and what of the morrow's work! and what of the unprepared counsel who, with hot and shaking hands and glaring eyes, unties for the first time in Court the strings of the case when he is called upon to open it. Judges and clients, and the professional conscience must have been easily satisfied in those old days when a counsel in full practice could state this fact: "I doubt if from the year 1811, when I married, I have closed above one day in the month of my town life And a gentleman. And tried by this test, no- sive, as another Scotch Court, with a Chancellor at its head, was not inaugurated here. It would not have prevented a single appeal, while it undoubtedly would have been productive of irritation and public clamour, that would have reacted upon the law itself. Lord Cockburn had little opportunity, till | bour of Scotch Appeals. Three, four, and he himself became Solicitor-General, of ren- five years did cases drag their slow length dering assistance to the cause of legal reform. along; and even then they failed sometimes There was, however, one subject in which he to have execution done upon them, but seems to have been greatly interested, and were returned to the Court of Session, to which is now deserving of particular attention begin upon a better tack. He ingeniously -the Court of Appeal. Among the many rid himself of appeals upon questions of fact, things of which our favoured age has been by getting the judgment of the Court of Sesable to pluck prolific fruit, there must be sion declared final. It was also proposed, included the improvement of the law. On with the view of preventing appeals, that an all sides we are surrounded with "earnest" intermediate Court should be established in men, who have a mission to accomplish, and Scotland-a course which received the sancwho are ever ready to set theories against tion of the Faculty of Advocates, which was results. Indeed, there are few things in taken up by the Whig Government of 1806, which there is so little thrift as in the zeal and which would have been inevitably carfor law reform. It flows on unchecked by ried had that Government lived. It received obstacles, though twisted into devious wind- the support of Cockburn, although in his ings, to end, for want of good engineering, Memorials he condemns it; and it is fortuin a marsh. When its force becomes over-nate for the country at the present day, that whelming, and obtains an occasional tri- a scheme so absurd, ponderous, and expenumph, the result is the laying up in store for those who have to extract clearness from chaos, a burden that only use renders endurable. Each session now holds out its vernal promise, and ends with its autumnal fulfilment of it in the shape of new laws, which tear up by the root the old familiar The House of Lords, as a Supreme Court landmarks, a knowledge of the bearing of of Appeal, is the most singular institution which was the attainment of the slow labour now existing in a country prolific of instituof many years. In old age, the lawyer has tions which have outlived their usefulness. every year to go to school. It is not mere- The great British community is but imperly the acquisition of new knowledge, but the fectly described by any of the terms that more difficult effort to forget the old, that refer it to the constructive industry and wisannually weighs him to the earth. When dom of man. There are few things in this Cockburn and Jeffrey had read Erskine, they country which have been the product of a had acquired all the necessary law of their peremptory decree like that which an autoprofession. When they shut the volume crat, having to consider no will but his own, and laid it on the shelf, their legal studies daily issues on the introduction of new rewere at an end. They had not an annual forms. The institutions of this country recurring volume of statutes, a volume of have grown velut arbor avo; and their reports of civil cases, another of criminal growth has been spontaneous and irregular. cases, another of cases in the House of Lords, They have come down to us from an antiand finally, the decisions in the English quity more or less remote; and fulfilling Courts, which seem to be quoted as frequent- their purpose well on the aggregate, they ly in Scotland as our own. After all these are seldom troubled by that audacious spirit have been read, digested, and noted up, there of organization which has given to other is little time either for the suppers that countries a civil code, clear cut, to meet Cockburn delighted in, or for labour other every exigency of human life, and to render than that bought with vulgar hire. It was legislation unnecessary for ever. It is only a proposal of his, that all the books in law when public attention is aroused by a public which we now possess, and particularly the scandal or in some other startling way, that infinite volumes of decisions, should be an abuse becomes the subject of a popular heaped together in one vast holocaust, and outery which will have its victim. reduced to dust and ashes, so that we might all start the race afresh, jus facere, which is so much easier than jus dicere. The crisis of the House of Lords recently seemed to be at hand. It did seem incongruous that the supreme tribunal of apIn Lord Eldon's days, the litigiousness of peal of a great nation should be one in which our ancestors was not less than that of their not one of the proceedings, however fitted descendants. A master like that great for a deliberative assembly, was suited for the Judge of the virtue of procrastination, with- administration of positive law,-a place out which Courts of justice would cease where the Judges give their opinions as if to be, he did much to save himself the la- they were upon the platform, and use towards each other and to the Courts which justice. A dog peaceful and artless in its they are reviewing the impassioned language usual demeanour, suddenly gets into bad with which, three hours later, they vilify the company, or falls mad, and worries a neighpolitical conduct of each other, where the bour's sheep. The law of Scotland says, whole atmosphere is charged with party that the dog's owner shall make reparation; spirit and party associations, and in which the law of England, that the madness of the there has often been exhibited a fierceness dog was an accident, for which its owner of temper from the collision simply of op- was not responsible; and the House of posing opinion, such as to take away all Lords reversed the Scotch Judgment, and that respect that one would otherwise feel gave us a better rule.-The law of Scotland for a Court guided by exact habits of thought, says, that where a number of children born and moving to its purpose in harmonious in different parishes become proper objects action. With regard to Scotland, a still of parochial relief on the death of their pamore extraordinary spectacle is exhibited in rents, each shall be sent to his own parish, the circumstance that this High Court of ap- -one to Galloway, one to Shetland, one to peal is as ignorant of our laws as of the laws Lanarkshire; and thus in their misfortune of Otaheite. The Bar of the House of Lords, the sacred tie of brotherhood is severed, in when a Scotch appeal is on, is, to a Scotch all probability never again to be united. lawyer, the most amusing place in London. This may be law, but certainly it is not huThe counsel who plead, the judges who hear, manity. The House of Lords reversed it, make such havoc not merely of the law but-kept all the children together, and sent of the legal nomenclature, (which being of them to the parish of their father.-Sir Roman origin ought to be intelligible to George Mackenzie, in the last days of the every person acquainted with general juris- Stuart dynasty, introduced into the Scottish prudence,) that in the hearing of it a Scottish Parliament that statute which has locked up lawyer can find such an amount of sober the land of Scotland under the fetters of enamusement, as renders it unnecessary for that tails, under the operation of which vast tracts day to search out farther diversion in the of country have been accumulated, and are metropolis. The Scotch forms of process, yearly accumulating, in the hands of a few the Scotch judges, their opinions, are treated individuals, bringing in its train many great in a fashion not complimentary to the na-national and social evils. It was impossible tional vanity or to our judicial dignity. for the Courts of law to repeal a legislative Still, while overwhelming us with contempt, enactment, but they could modify its evils; the House of Lords are found asking the and so the House of Lords introduced that meaning of ordinary Scotch legal terms, and principle of strict construction of these deeds, rules and forms of process, of any counsel which treats the intention of the entailer as at the Bar acquainted with Scottish law. of no moment, and which has so often done Of course the result is, that amid the chaos justice by opening up an estate to creditors of unintelligible sounds which ring around or a female line.-A master employs a hunthe head of the devoted Chancellor, he takes dred workmen, selected with care and judgrefuge in that which he understands; and if ment; they are all put at their various posts, the English law is applicable, he applies it. The battle of Bannockburn has been fought in vain! The Treaty of Union which provides that there shall be no appeal to the Courts of Westminster Hall, has been cunningly evaded! Scotia has become the bond-maid of her old enemy; and a conquest far more effectual has been achieved, not by legal astuteness but by legal ignorance, than was effected by all the arms of Edward. -one to dig, another to carry, another to build, another to work the steam-engine; and at a particular moment, through the carelessness of one, his neighbour's life is lost. Shall the master, 100 miles away, be answerable pecuniarily to the dead man's widow, or shall it be the wrongdoer? The law of Scotland rejects the master's plea, that if he is made responsible for a thing he did not authorize, and which, if not contrary And what is the result? What else could to his express order, was inconsistent with be expected than judgments directly at va- the regulations of his mill, it would be imriance with the law of the country from possible, in the face of such responsibilities, which the case was brought? And yet take to carry on with safety any of these manuit with all its faults, with all its presumption, facturing establishments, in which, from the ignorance, and error,-it has proved one of carelessness of the workmen, there is an the greatest blessings that was given to Scot-ever-recurring loss of life. The master is, land by the Union. Its very errors have leant | according to the law of Scotland, liable. It to virtue's side. In many cases where it is otherwise in England; and the case now has thrust upon Scotland the English law, waits reversal in the House of Lords. its decision has leant to common sense and Such are a specimen of these decisions D-10 VOL. XXVI. in which the supreme tribunal assumes to press) is the place which, for generations, itself the power of legislative action. In has been selected for discussing the conduct every one of these cases, and indeed in of English Judges. every one of the reversals that have been It is not, however, seemly or decorous pronounced for upwards of a century, many that the House of Lords, in the person of of which have been, and are now, submitted its grave Chancellor, should be made to to with restive and ungracious reluctance afford amusement to Scottish lawyers. It by the Scottish Courts, is there a wisdom is not decorous that the great master in and practical good sense highly complimen- Israel should, when called upon to expound tary to the English intellect. But the ben- the law, be engaged in acquiring the eleefit of the House of Lords does not consist ments of knowledge; and as Scotland has so much in its direct action as in its indi- furnished nearly three-fourths of his labour, rect influence. The Scottish Courts are it is right that she should be represented in situated remote from the seat of the legis- the Court. It is said that if a Scotch lawture, and away from the eye of Govern- yer were introduced, he would bring with ment, and administer a law unintelligible to him the contracted notions of his EdinEnglishmen. The counsel in employment burgh prejudices, and that to his judgment are outnumbered by the very Judges on the other members of the Court would the Bench. The press seldom interferes bend. This result has been arrived at with the proceedings which it does not un- without keeping in view the influence upon derstand; and thus circumstances appear to poor human nature of the change of scene. have been so adjusted as to give to the A few months in a London atmosphere, and Courts that most dangerous of all tempta- upon the dizzy height to which he had been tions, unchecked authority. On a former elevated, would be sufficient to separate a occasion, we defended the appointment of a transplanted Scottish lawyer from the parSheriff not resident in his county, on the tialities supposed to be incident to a provinground that he is not mingled with the cial position. The time would not be long strifes of the practitioners in his court, only when, on occasional journeys to London, casually acquainted with the magnates one would be startled at finding country so within his jurisdiction, and therefore bring- much forgotten, that the voice no longer ing to every case a mind more unbiassed seemed familiar, and the mode of speech than one over whom the sinister influence strange. So far from influencing the Engof social and local spirit operated, and so lish members of the Court, we rather think do we now maintain that a Court of appeal that the opposite would be the case; and in Scotland would be a death-blow to pub- that in endeavouring to acquire their accent, lic confidence in the administration of jus- he would acquire their mode of view. The tice. The observation is made irrespective benefit of his presence there, however, would of times or persons. The same influences, be to save the Court from the infliction of though slower in their operation, would still unnecessary elementary harangues; from work upon the minds of a Scotch Court, every imposition of error upon them as truth; one of whom was a Duncan Forbes, in whose from ridiculous blunders in matters which placid equity and mediating wisdom all men it is not so much a virtue to know, as a discould trust, as upon one composed of mean- grace to be ignorant of; and thus by giving er minds. The fact that there does exist a accuracy to the judgments of the House in Court of review, before which partiality, in- matters of detail, would preserve to it a temperance, or ignorance may be exposed, position of respectability. operates as an invisible but all-powerful This problem will be solved in a manner safeguard. Its main and pre-eminent re- that would have broken Cockburn's heart. commendation is not so much to correct That two nations speaking the same lanerror and supply the defects of native guage- under the Legislature and Sovelearning, as to fortify the feebleness of hu- reign-should be under the government of man resolutions. It matters not that the different laws, is a thing that will not last tribunal of review is ignorant. The fact in all probability beyond this generation. that it exists is enough; and that it will, Consolidation of the two systems on the according to the measure of its knowledge, principle of preferring neither, but of selectdeal justice to the parties irrespective of ing the better parts of both, would be worthose local sinister influences that may have thy of a century the most remarkable in clouded the judgment of the members of history for the number and magnitude of the Court below. Parliament, at a distance its reforms. Of course there will be a of 400 miles, is only a feeble check upon struggle, and many a sad regret, before the proceedings of Courts administering a Scotland surrenders her position of an unforeign law; while Parliament (with the real nationality, and the feeling of a jealous |