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self concludes his biography with two extracts from this Journal, which in his opinion condense the essence of just criticism on his favourite. He has been enabled to give the names of the two distinguished associates from whom the articles he cites proceeded, and certainly they will lose none of their weight by being thus affiliated. In our 8th Number, commenting on some ridiculous comparisons instituted between Goldsmith and a then living rhymer, Sir Walter Scott expressed himself in these words :

In a subsequent poem Mr. Pratt is informed (for he probably never dreamt of it) that he inherits the lyre of Goldsmith. If this be true, the lyre is much the worse for wear; and for our parts, we should as soon take the bequest of a Jew's-harp as the reversion of so worthless an instrument.

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This is the third instance we remember of living poets being complimented at the expense of poor Goldsmith. A literary journal has thought proper to extol Mr. Crabbe as far above him; and Mr. Richards (a man of genius also, we readily admit) has been said, in a note to a late sermon, famous for its length, to unite "the nervousness of Dryden with the ease of Goldsmith." This is all very easily asserted. The native ease and grace of Goldsmith's versification have probably led to the deception; but it would be difficult to point out one among the English poets less likely to be excelled in his own style than the author of the "Deserted Village." Possessing much of the compactness of Pope's versification, without the monotonous structure of his lines; rising sometimes to the swell and fulness of Dryden, without his inflations; delicate and masterly in his descriptions; graceful in one of the greatest graces of poetry, its transitions; alike successful in his sportive or grave, his playful or melancholy mood; he may long bid defiance to the numerous competitors whom the friendship or flattery of the present age is so hastily arraying against him.'

And again, in the 11th Number of this Journal, the late Earl of Dudley, reviewing the Life of Lord Charlemont, found occasion to allude to Goldsmith's exquisite prose style, the perfect purity and grace of which must ever, as Judge Day observes, be considered with wonder by those acquainted with the personal tastes and habits of the man; and the hints which our noble friend then administered to Irish writers in general would certainly not have been less pointed had he discharged the function of a reviewer in 1836.

The Irish are much beyond most other nations in natural endowments, and they are daily advancing in education and knowledge. Their great defect is bad taste. This is the rock upon which the best talents among them are wrecked; and this will continue to be the case as long as they insist upon decoration and sublimity in works which properly belong to the "middle style." As a first step towards improvement we would heartily recommend them to choose some safer and less brilliant object of imitation. If they seek it among their own

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countrymen,

countrymen, the name of Swift will at once occur; and in more recent times, they will find in the prose of Goldsmith as perfect a model as any that exists in our language of purity, facility, and grace; of clear lively narration, of the most exhilarating gaiety, of the most touching pathos; in short, of almost every merit that style can possess, except in those comparatively few instances in which the subject calls for a display of higher and impassioned eloquence.'

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On the whole, we expect that the effect of Mr. Prior's exertions will be to rescue Goldsmith from the comparative obscurity into which so many of our best old writers are falling among the readers to whom they would be of most use. We seldom find ourselves in a company of young gentlemen of the present day without being confounded and grieved to observe how ignorant they are, even those of them who betray a real love of letters, concerning the lives and works of the English classics even of the last century; and are often tempted to hazard a sermon on a certain pithy text of their own chief favourite about Horace then, and Claudian now.' Nor is there the slightest excuse in this case, as there is in many others, from anything like indelicacy of thought or word. Goldsmith's happy taste anticipated the coming age; there is no classic of any time whose opera omnia may be placed with more confidence in the hands of that sex for whom every author that now aspires to general and lasting success must on all occasions consider himself as writing. In his prose and in his verse Virginibus puerisque was always the motto of this benevolent and gentle-hearted man. His humour was without coarseness-his merriment without extravagance-his wit without spleen; and the volumes which we now close will ever constitute one of the most precious 'wells of English undefiled.'

ART. II-A Practical Treatise and Observations on Trial by Jury in Civil Causes, as now Incorporated with the Jurisdiction of the Court of Session. By the Right Hon. Wm. Adam, Lord Chief Commissioner. 8vo. Edinburgh. 1836.

WHEN

HEN a volume (however meritorious) is compiled upon a mere technical subject, connected with the practice of the law, we generally consider it as lying without our jurisdiction. But when a work appears from authority on the introduction of a great alteration in the form and the substance of a national judicature, we feel ourselves bound to take a different view of the Such a treatise must equally deserve the attention of the philosopher and the statesman; and can be without interest for no one who comprehends the importance of legislative changes affecting

case.

affecting the long-rooted habits and feelings of an intelligent community.

A short summary of the state of things which immediately preceded the passing of that act of parliament which first introduced the trial by jury in civil causes into Scotland, will enable our readers to appreciate the difficulties which impeded the undertaking. The accumulation of appeals from Scotland to the House of Lords had long been a subject of general complaint; and the evil was rapidly on the increase. The vast expense which attended this tedious procrastination, and the advantages which the certainty of delay afforded to a wealthy and litigious appellant, had been for years lamented by those who possessed the best means of observation. As the arrear of cases increased, their frivolity also advanced in proportion; and questions of the merest and simplest fact, which could have been at once disposed of by a jury on the spot, in a perfectly satisfactory manner, were brought at a great cost before a distant tribunal but ill calculated minutely to sift their merits, and still less able to dedicate a sufficient portion of time to such a task. A grievance thus generally felt and acknowledged-the subject of common complaint amongst the advocates both of the English and Scotch bar, and which had called forth the just animadversions of the chancellor himself— attracted the notice of the prime minister, Lord Grenville, in the year 1806. He foresaw the impossibility of checking the accumulation, without providing an adequate tribunal which, by some expeditious system, should at once dispose of all questions of fact, to the satisfaction of the Scottish people. He brought into parliament a bill for this purpose, which was printed and circulated throughout the country; but he left office shortly afterwards, and no further steps were taken till 1808-when a commission of lawyers was appointed; who reported very cautiously indeed, but still in favour of some remedial measure similar to that of Lord Grenville's bill. The evil, meanwhile, had gone on increasing to an alarming extent; and at length, in 1816, the act of parliament which first established a jury court in Scotland received the Royal assent with the approbation of all parties. It was experimental at first for seven years; but was made permanent by an act passed in 1819. After the system had received a fair trial of ten years, the powers of the tribunal were transferred by another act to the Court of Session. In 1830 the jury court was abolished as a separate court, the lord chief commissioner being made a judge of the Court of Session, to have voice in all matters relating to trial by jury. In 1819, when the experiment was to be begun, the selection of some presiding judge, combining knowledge with judgment, tact, and weight of character, was a matter of primary importance;

and

and fortunately in Lord Commissioner Adam was found a person peculiarly well calculated, from his personal accomplishments and position in the world, to undertake these arduous duties. He had been long in the possession of the Scotch appeal business in the House of Lords; and occupied a situation of high rank in this country. He had the advantage also of having been called in his early life to the Scotch bar, which enabled him to carry on a more free and confidential intercourse with the distinguished individuals of his native kingdom; and he brought to the new task a mind replete with professional information, and already in that state of active preparation which a long course of reflection and meditation had engendered.

He appears to have been strongly impressed with the policy of introducing the new measures in their most captivating garb, and of placing their many advantages in the most prominent point of view; being justly apprehensive that the exposition of improvements, which at the same time brought with them their correspondent difficulties, might tend to alienate the friendship of those whom it was his first point to conciliate. The application of the English law of evidence, in regulating the proceedings before the jury, seemed to be called for as a matter of necessity; but the imperious imposition of a foreign code, and coming from a powerful neighbour, was but too likely to call forth feelings of jealousy and ill-will. The first obstacle appears to have presented itself from the most influential quarter, and at this we are not at all surprised; indeed, without presuming to impugn the knowledge and attainments of the lords of session at this period, we see not well how it could have been otherwise. That they should have anticipated much difficulty about drawing a clear line of demarkation between the duties of the jury and those of the bench, was, in fact, inevitable; for even in England it would be no easy matter to explain, exclusively on scientific principles and grounds of sound logic, those various rules of arbitrary practice which have contributed from time to time to keep the machine in a regular and convenient course. To the consideration of this matter the Chief Commissioner forthwith applied all the powers of his mind. He felt that from England alone could the details of the new method be borrowed-that the main rules, and the largest portion of the machinery, must be acquired from the same source; but he saw also that, as the judicial institutions of Scotland partook far more largely of the models of the civil code, it must happen that no art of arrangement could apply some of the more technical English forms in an apt or satisfactory manner; and we must confess that we as frequently trace the master-mind in the departure from, as we do in the skilful adaptation of these forms.

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The framing of the different issues, so as properly to raise the questions submitted to the consideration of the jury, became of course the first object of attention. That this great and leading difficulty has been successfully overcome, will be triumphantly proved by the perusal of Mr. Murray's reports; and as the settlement of it brings to view the striking difference between the two systems, we think it may not be unacceptable to the reader to explain to him in a summary manner the grounds of these peculiarities.

It had been in the first instance suggested to Lord Grenville that the mode of pleading in the Court of Session by summons and defence would at once have afforded sufficient means of placing a fit and proper issue before the court. But on this point it is truly observed— That the summons is almost always a work of haste. It is not framed with the precision of an English declaration. The defences (in England, the plea), which are loose argumentative papers, do not offer a precise issue on which to join and try.' Next, it was open to the learned lord to have adopted the method of the English court of chancery, and have tried all the questions of fact through the medium of a feigned issue. Our readers are aware that the disputed facts are in this case placed before the jury in the shape of a wager between the contending parties; and although, practically speaking, it sufficiently answers its purpose, yet no candid person can deny that it is but a clumsy and unscientific expedient. If I had suggested a feigned issue,' says the Lord Commissioner, it would have excited irremediable alarm in the profession here. The making a fictitious wager the ground of a formal legal proceeding would not have been understood; nor was the profession familiar with the most simple English declaration, or pleading to it, so as to join an issue in the cause.'-Preface, p. vii.

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It remained then to adopt but one other course; and that was, to embody in simple questions, framed under the authority and superintendence of the judge, the matter to be tried. The whole of the scheme may be comprised in the following short statement. The summons, in the first place, sets forth the injury or ground of complaint. The defender next puts in his defence; and possibly in some instances of the simplest description, these documents may of themselves afford a sufficient issue. This, however, can but rarely happen. Next comes the condescendence-being a specification of the facts on which the complaint rests, arranged in a more precise and particular form; and this is met by a more special answer. From these premises the issue is finally framed. This method appears to have received the sanction of the most eminent men amongst the English bench and bar; indeed it had

been

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