been recommended to the notice of the Lord Chief Commissioner, by some precedents, or rather opinions, to be found in our reports and books of practice. His inclination, in all cases where it was practicable, was to have recourse to the general issue, or the most general form of denial, and in this also he appears in the main to have been encouraged by his English advisers. That the scheme has succeeded beyond his utmost expectation, we now have abundant proof; and we are inclined to ascribe no small portion of this success to the unwearied industry, the caution and determination of purpose, and the straightforward simplicity of mind which presided over the whole experiment.

In giving this short summary of the origin of a great national benefit, we have purposely avoided running into detail, or wearying the reader with a minute and technical examination. It may not, however, be amiss to explain very briefly, why a form of pleading, which in the opinion of those the best competent to judge has, in its extended adoption in England, proved rather mischievous than otherwise, should have been applied with so much advantage in laying the foundation of a new system for Scotland. The truth is, that the loose and argumentative nature of the Scotch pleadings has been subjected to far more powerful checks than might appear on a superficial inspection. Had the condescendence and answer of the Scotch law been framed at all according to the model of the English declaration and plea, there would have been little difficulty in at once introducing the whole system of English pleading. But we must bear in mind that the general and special demurrer of the English courts, which of themselves had the effect of compelling the admission of undisputed facts, and settling the relevancy of the plea, and its materiality, were regulated by rules which had been moulded in the crucible of rigid logic; and all these causes contributed to give a character of singleness and precision to the declaration, and to bring to a fixed point the real question in dispute. This process had the effect of introducing to the jury in a definite and distinct form the fact upon which they had to decide, and all those voluminous arguments and reasonings, which were embodied in the condescendence and answer of the Scotch method, became in the English courts the arguments merely of the advocate to the jury, and subject to the control and direction of the judge. To counteract this looseness of argument and generality of reasoning, the learned Commissioner provided two important checks. The first was the refusal to notice in the issue whatever had not been distinctly averred in the condescendence; and the second was the obliging the contending parties to admit whatever was not really a matter of dispute, preparatory to the framing of the issue. With

these

these important checks and protections, we can easily see how the general issue was calculated to become the most efficient instrument for accomplishing the object in view; for-although a jealousy or littleness of mind, or an over-cunning will, in most cases, prevent the parties themselves from agreeing to a full and voluntary set of admissions,-the case is widely different when these come recommended by the authority of the judge, who stands clear of all suspicion of bias. It is hardly to be expected that cases will not arise, in which an intricate state of facts may require a more special form, on proposing the issue to the jury. But it is equally obvious that difficulties of this description must decrease, as well-digested precedents accumulate. The complicated questions that arise will be met by a more refined instrumentality, equally satisfactory to the Scotch bench and bar, and advantageous to the body of suitors.

In fine, we cannot but express our belief that this cautious and patient method in the promulgation of the new system will prove most acceptable to the general feelings of our northern neighbours, and that its adoption argued more wisdom than that imperative spirit of rapid legislation which is so much in favour at the present time, and which, in its anxiety to force the application of some general and abstract principle, is too apt to overlook the difficulties which stand in the way of final success. We have merely to add, that the power of moving for a new trial is given to the parties, and pretty nearly on the model, and according to the principles, established in Westminster Hall; and that if the court above should think proper to refuse the application, a bill of exceptions may then be applied for;-so that an ultimate appeal to the House of Lords on every question of law that can arise is still kept open and inviolate.

This volume is an invaluable manual for the profession in the North; nor ought the fastidiousness of the English lawyer to despise the many minute rules and directions which are scattered through its pages. In such a case minuteness becomes a virtue, and a rich assemblage of elementary propositions can alone form a stable and solid groundwork for the erection of the future edifice. We, in short, fully agree in the opinion which Sir Samuel Shepherd, an authority second to none, has expressed of this book :I think it will be most beneficial to the bench and the bar in Scotland; and I also think that it would not be amiss if some of us on this side the Tweed were to give it an attentive perusal.' -p. 148. It is highly gratifying to find the venerable author exhibiting, in the written labours of his retirement, the same calm and dispassionate judgment which in his busier day balanced and blended together the opinions of his Scotch brethren

and

and the communications of the English bench. We cannot doubt that his activity of mind, and disinterestedness of purpose, are held in just estimation by the northern public at large; and the opinion of the Scotch Bar on his final retirement from the bench stands recorded in the language of one of the most brilliant of that accomplished body, the then Dean of Faculty, Mr. Jeffrey

None can be so fully aware as the members of the bar of the many and great difficulties which his lordship had to surmount in introducing trial by jury in civil causes into Scotland, or of the success with which they have been overcome. This triumph the Faculty is satisfied could only have been accomplished by the eminent qualifications of the venerable judge who has conducted so great and arduous a judicial experiment, and by the unremitting zeal and unvarying and devoted attention with which his lordship has dedicated his mind to the establishment and improvement of trial by jury.'-Appendix, p. 16.

On the whole, the manner in which the new system has been received reflects high honour on the candour and liberality of the people of Scotland. We may illustrate the readiness with which the nation appear to have dropped their prejudices in this matter by a personal anecdote, to the accuracy of which we can bear testimony. In the latter period of his life Mr. Dugald Stewart spent a winter in the west of England, when he seized on the opportunity which the circuit afforded him of witnessing for the first time the proceedings in an English court of justice. A long and tedious case (it concerned the obstruction of a watercourse) occupied nearly the whole of the morning, and produced a great deal of skilful cross-examination. On leaving the court, he observed to the gentleman who had been his companion throughout the day, that he had always been an enemy to the introduction of Lord Grenville's bill into Scotland, and that he was so at the very moment he entered the Assize Hall; but that he was free to confess his opinion had undergone a decisive, although rapid, alteration. I could not have believed it possible,' said he, that truth to such an extent could have been extracted from such unwilling witnesses. They would in Scotland have baffled all our efforts for a long period, if not for ever. I am now decidedly in favour of

the new measure.'

6

ART. III.-History of England from the Peace of Utrecht to the Peace of Aix-la-Chapelle. By Lord Mahon. Vol. I. 8vo. London. 1836.

WE

E cannot believe that we are misled by that natural tendency of our mental optics to magnify the relative importance of whatever is nearest to us, when we affirm that the history of this

country

country from the Revolution of 1688 to the present time is the most instructive and interesting chapter in that of the human race.

Under various circumstances, and exposed to arduous trials, it has been the most striking example of a state of society, at once prosperous and progressive, attaining the highest pitch of civilization without experiencing the slightest relaxation of its moral energy. It is not alone the history of the political changes of a nation, but of the development of mind, of the achievements of human intellect, of the invention of new arts, of the creation of new powers, of the vast extension of every science and every department of knowledge.

Every stage of this great progress must afford matter of deep interest to the political philosopher, to the historian, to the statesman; and not the least remarkable is the period which is treated of in the work before us. Amidst the keenest rivalry and the bitterest struggles of party, struggles which appeared calculated to shake the political machine into fragments, our constitution then attained that firmness of texture and stability of position which endured so long, which raised us so high, through which we attained so much of prosperity and of glory, and enjoyed so much of liberty, security, and happiness. The social changes which we have undergone since, though immense, have been gradualno violent convulsion has ushered them in ;--and it is the more necessary that, to mark the alteration, we should carry our regards back, and institute a point of comparison from which to measure their scope and extent.

Certain remarkable analogies between the party struggles of the beginning of the last century and those of our own day have recently directed the public regards to that portion of our domestic history, and re-awakened an interest in it which had been obliterated by the more exciting events of later years. And this curiosity found no very great facility or satisfaction in its gratification. The materials of history were indeed abundant; but the history itself, presenting to the mass of the reading public a succinct relation of the transactions, and a comprehensive view of the spirit and tendency of the times, was not to be found. By a sort of prescriptive title, chiefly founded upon the similar garb in which they have been attired by the printer and the bookbinder, Smollett has acquired the privilege of being considered as the legitimate successor of Hume;-yet few have waded through his annals without weariness and impatience, or without remarking upon the singular contrast between the sprightliness and invention of the novelist and the heavy tediousness of the historian. The public owe a large debt of obligation to the labours of Archdeacon Coxe, whose biographical works

have done so much to render them acquainted with the events of the early part of the last century; yet, however much of an historical character the lives of men like Marlborough and Walpole must necessarily partake of, still the distinction between biography and history will always remain a wide one. A work concentrating the whole interest round an individual, and treating events not in proportion to their actual importance, but to their connexion with that one person, can never adequately supply the place of a general history. Mr. Hallam's admirably written Constitutional History excludes, by its original design, all detail and narrative of transactions not immediately connected with his subject, and can only indeed be appreciated by those who have acquired a previous knowledge of the period. Lord John Russell's Memoirs of the History of Europe do not, when perused, serve to explain the doubt as to his plan, which his ambiguous title causes. The slight thread of his narrative, winding over so large a space, seems only intended as an accompaniment and key to the anecdotes and reflections in which the interest of his book, such as it is, consists.

In addition to the advantage of finding a field thus abundant in interest, and in a great degree unoccupied, Lord Mahon has had the command of a variety of new materials. It is curious by

what an insensible progress, the motive of curiosity and desire of investigation in the many surviving the reasons of concealment in the few, the secret springs of action, the real designs and objects of the great actors upon the stage of public life, have a tendency ultimately to reveal themselves. We may trace the gradual relaxation of the watchful guard over the private journal or confidential letter, or communication in cypher, which was once maintained by all the jealousy of intriguing ambition. Little by little these depositions of state secrets see the light, one serves to elucidate another, and a clue is obtained by which to unravel the complicated web, which had been impenetrable to the most prying contemporary. Like a picture seen from its proper point of view, the details fall into their just proportion; the lights and shadows exhibit their natural effect; and that which, at too near a distance, or in an unfavourable position, would appear to the most experienced connoisseur but as a confused medley of different tints, conveys to the eye a distinct and vivid image, accurate in its outline, harmonious in its colouring. Lord Mahon, himself the direct descendant of one of the most prominent characters of the period he treats of, possesses in the Stanhope Papers a mine of historical information, from which he has enriched his work, and thrown much light upon the intricate political intrigues of that time. The collection of Papers in the family of Hardwicke, which have been

placed