questions, it would appear, can only be settled by borrowing, as usual, to a very large extent from our Scotch practice. On the whole, the most satisfactory view which can be taken of the meeting, is the evidence it affords of the importance that is attached by our leading public men to the amendment of the law as a branch of social progress, now that all the great political questions are dead, and party strife has been buried with them in their grave.

The Circuits, this autumn, had no feature calling for remark, save the continued falling off in this branch of business. At Glasgow, a novel difficulty occurred, which caused considerable dissatisfaction. The Court was to have met on Tuesday, the 29th September; but on that day an unusually protracted inquiry (the Falkirk Bank case) was still in progress at Stirling before Lord Handyside, his colleague, Lord Cowan, having left the day before, with the view of opening the Court at Glasgow. Notwithstanding, however, the attendance of jurors, witnesses, counsel, and officials, his Lordship discovered that, till the case at Stirling was over, this could not be done, in consequence of the terms of the Act of Adjournal making the appointments for the Circuit. We believe the Act appoints the Court to meet at Inverary, thereafter at Stirling, and thereafter at Glasgow; and his Lordship held that the use of this word "thereafter," implied that the Court was not to be opened at Glasgow until the conclusion of the business at Stirling. But it must be remembered, that although this word was used, the Act also named a day, viz., the 29th September, on which the Court was to meet at Glasgow; from which, we think, the fair inference is, that the true meaning of the word "thereafter" is, after the day last named, that is, the 23d September, when the Court was to meet at Stirling. And we are strengthened in this supposition by the Act of Adjournal of 3d September 1708, which seems to have been enacted to meet just such a case as here occurred. It declares "that either of the two Judges, sent on any of the two Circuits, may proceed to business in the necessary absence of his colleague." This clause was repeated in the subsequent Act of 20 Geo. II., c. 43. Was Lord Handyside's absence at Stirling on this occasion not necessary?

But even admitting that Lord Cowan was right in his construction of the Act of Adjournal (and in what we have said we wish to be understood as speaking with all deference to his Lordship), it may be observed, that it must have been known that the case at Stirling, to which we have referred, would occupy a very considerable time, and, if so, why was the day for the Glasgow Circuit fixed so early as the 29th September?

At all events, there can be no use of inserting in the Act of Adjournal this word "thereafter," which seems to have caused all the inconvenience on this occasion. It is sufficient under the Acts to name a day on which the Court is to be held at each place; and if Lord Cowan's construction of the Act of Adjournal in this instance

be sustained, we submit that the word might in future be omitted with propriety.

While on this subject, we may take the opportunity of submitting the propriety of instituting in Scotland some kind of Criminal Review, whereby, as in England, the judges on Circuit would have an opportunity of reserving questions of law for after consideration. This is one of the points discussed by Lord Cockburn in his wellknown article on Scotch Criminal Jurisprudence and Procedure," in the Edinburgh Review for January 1846 (Vol. 83, p. 207); and it cannot be better stated than in his Lordship's words:

"No judgment pronounced by the Supreme Criminal Judges, whether sitting collectively as the High Court of Justiciary, or singly, at Circuits, is liable to any process of legal review, even before that Court itself. Every judgment is final and irreversible. This may be right; or it may be wrong. But this at least is certain, that wherever judgments are irreversible, Courts should have ample time to consider them before they are delivered. The Scotch Court has ample time for this, where the point to be disposed of occurs before the jury are sworn, or after they are discharged-that is, before or after trial. But if it occurs during trial, then, as there is no power of reserving it, it must be finally settled on the spot. It may be argued; but this must be done at the moment.

The consequences are, that the trial is obstructed; legal questions may be ill discussed, and ill decided; and even when well decided, the judgment loses the authority imparted by thought and consultation. The impossibility of having these, often reduces Courts to the greatest pain and alarm. No counsel can have his loins always girt up. They are all liable to be taken short. And no judge's head is always clear, or his memory always loaded with a full and accessible cargo of authorities. Both are necessarily impatient; for the trial is stopped. The hour of liberation is deferred. Brevity is the only tolerated virtue. His Lordship attempts to quash the bar by a sudden show of apparent knowledge; and the bar strains itself to paralyse him by precedents which, on the instant, he cannot appreciate, or sophistry which he cannot at once detect. Ammunition is rushed for into the arsenal of the adjoining library; and should a learned pundit chance to appear, he is like to be torn to pieces for an opinion, by both sides. All this only thickens the caldron. The poor distressed judge perspires, and tries to look wise and easy. But he can do nothing, and groans inwardly, when the bar at last stops. Compelled then to do something, he first makes a struggle to evade deciding; which failing, he endeavours to escape behind some general maxim; which all failing, he relieves himself by a desperate plunge, and decides;-conscious, however, that he would perhaps have been as right if he decided exactly the opposite way. Nor are the throes of a Court, consisting of several judges, less severe. The wisdom that is in the multitude of councillors, only exists when they have time to consult. Without this, multitude only multiplies doubts or confirms rashness. And during this irritating parenthesis, what are the jury doing? Yawning and forgetting; and joining the audience in its surprise at the curious niceties on which men's lives depend.

"The remedy for all this is, to empower the Court to reserve points of law, and to receive verdicts, and to pronounce sentences, subject to this reservation. We have heard of objections to this; but none that any man would state,none that any child could not refute."

VOL. I.—NO. XI. NOVEMBER 1857.

ZZZ

New Books.

Political Progress not necessarily Democratic or Relative Equality the true Foundation of Liberty. By JAMES LORIMER, Esq., Advocate. London and Edinburgh: Williams and Norgate.

THIS is a thoughtful and learned book. To these qualities in point of substance, it unites the advantage in point of form, of an easy and elegant style, the fittest exponent of so much thoughtfulness and learning. Let no one take fright at its title, which, after the academic fashion of older times, sets forth the author's thesis in two pithy alternatives. If you begin to read at all, you will assuredly read through with pleasure and profit, the three hundred wideprinted pages of which this small volume consists.

We make no sort of apology for introducing it to the notice of our readers. The mutual relations of the citizen and the state lie within the domain of public law, which this Journal, consistently with its title, can scarcely pass by as a foreign region; for we claim as ours the philosophy of Jurisprudence, as well as its points of law and its forms of process. We have appropriately chosen for this short excursus a quiet season of the year, when the roar of litigation [thanks to a recent statute] is yet unheard in our superior courts of law, and when the Lord Advocate and Mr Dunlop still rest from their legislative labours.

Let us briefly state the aims of Mr Lorimer's book.

There is a force in modern societies, which, in the opinion of men who observe and think, tends more and more to absorb all other social influences, and to reign exclusively in their stead. That force is Democracy. Its ultimate and complete form is universal suffrage, together with the substitution of pledged delegates in the room of representatives intrusted with freedom of speech and vote. Demos being too numerous for our modern Agora, is to be present there by mandatories having no other mission than to declare and enforce his sovereign will. This is the state of things of which Mr Lorimer

says:

"That the rule of the numerical majority is the degenerate form to which not only popular governments are prone, but that it is the final form of degeneracy of all governments whatsoever. In every case, the change by which it is introduced, is the last act of social organic existence, and its troubled sway the death-bed sickness of the body politic."

From Monarchy, and its corrupt form Tyranny (in specie), to Aristocracy, and its corrupt form Oligarchy; and thence lower still ⚫ to Commonwealth, and its corrupt form Democracy; beyond which lie Anarchy, and the necessity of constructing society anew out of

its ruins, such is the fatal cycle to which nations are prone. To escape from it was the leading thought of ancient political philosophers, and ought to be the chief care of their modern successors. Mr Lorimer takes no gloomy or fatalist view of the matter, as the following eloquent passage sufficiently proves :—

"The response thus pronounced by the oracle of experience in the ancient world, as read by its most cunning interpreters, is a solemn, and, at first sight, a very sorrowful one for human progress. The last, and, as it appeared, the invariable result of political development, was a form of government which rendered progress impossible; and, there being no standing still, decline consequently became inevitable. According to this theory, when the last stage had been reached, there was nothing further to be done but to permit society to resolve itself into its elements, and again to recommence the dreary cycle which was again to terminate in a similar dissolution. That an organization which had attained its completion should fall to pieces and crumble away, till in the end it served no other purpose than to fertilize, by its traditions, the soil from which a fresh and vigorous political life is to spring, seems so much in harmony with the general scheme of the world's government, that mankind have made up their minds to it pretty much as they have done to their own dissolution. And, perhaps, they have been right in doing so; at all events, the world's previous history furnishes us with no secure ground for asserting that they have been wrong. But the analogy between the physical and the social world in this respect, though a striking, is not in reality a close one. As regards the dissolution of animals and plants, our induction is sufficiently extensive to warrant an universal conclusion; and even if it had been far less extensive than it is, the similarity between the animal and vegetable organizations which now exist, and those which have ceased to exist, is so great, and the surrounding circumstances so nearly identical, as to give to the conclusion a very high probability. In politics all this is reversed. The instances are so few as scarcely to warrant any conclusion at all; and if they were far more numerous than they are, their character is so dissimilar, and the circumstances in which they are placed so wholly unlike, as almost to defy the application of induction altogether. The question, however, whether any society can be rendered absolutely permanent [permanent, i.e., whilst human affairs remain as they have hitherto been-for the world, too, has its day], is a question which is, and is likely to continue to be, insoluble by mankind. But, like most insoluble questions, it is one which happily does not bear on our present conduct. Whether there be absolute limits to the perfectibility and endurance of social organization or not, is a matter of no practical moment, so long as it is clear that these limits, if they exist. are separated from our present position by a vast untrodden region which is as open to human endeavour as any over which mankind have hitherto passed."

Let us

Shall the democratic tendency which, in various degrees, is found everywhere alive and energetic, be met by direct opposition; or shall it, on the contrary, be dealt with as a power too strong to yield up its claims either to suasion or to force, but capable, nevertheless, of salutary regulation? The latter alternative is Mr Lorimer's answer to this question, and it is ours also. accept the democratic tendency so far as to bestow, by degrees, on every citizen of the state some voice in public affairs, provided due security be taken that the wealth and traditions of the nation, its intelligence and its morality, shall have their due weight in the national councils. For, as Mr Lorimer well remarks,—

"If the nobler influences of society are impeded in their action, if the voices of the prudent and the virtuous are unheard, the loss to the community is the same, whether they be drowned in the shouts of an infuriated rabble, or silenced by the constitutional action of misdirected, though in the last instance, perhaps, inevitable legislation."

To save modern civilization from this fatal result, we conceive to be the true political problem of our times. Mr Lorimer does not definitely state and defend certain positive and specific modes of solution. He hints at a graduated suffrage, as, for example, a double vote to all who pay income-tax; the parliamentary representation of learned bodies, as such; the electoral franchise to be bestowed on men whose position, whether wealthy or not, is socially important; the endowment of a learned class for the purpose of what he terms the higher instruction as distinguished from school teaching. These proposals, we repeat, are not made in that definite shape which either invites or admits of discussion. Our author rather confines himself to the more general considerations which should guide political reformers. His endeavour is not so much to solve the problem, as to fix its conditions; not so much to answer, as to state that prudens questio, which in the opinion of Lord Bacon, is dimidium scientia. And he rightly generalizes that problem in the reconciliation of those two doctrines-the doctrine of conservatism, and the doctrine of progress of which the perpetual claims and conflicts make up the whole of political history. The passage containing this statement will serve as an excellent example of the eclectic, and generally impartial spirit, in which the whole book is written:

"The true problem of politics, as it seems to us, consists in the reconciliation of these two generic political doctrines, and of the attendant specific doctrines which they have respectively assembled round them, wherever these are legitimately deduced. If this can be accomplished, or even demonstrated to be theoretically possible, the applicability of both these doctrines in their fullest acceptation, will be vindicated, and the way will be found for building up, out of the scattered results of human experience, a system of harmonious political doctrine.

"In using the word reconciliation, however, we must at once distinguish between the sense we mean to convey, and that mechanical mode of disposing of a difference, which consists in mutual concessions. Such concessions, for the most part, imply a giving up, on both sides indiscriminately, of truth and error, the single object being to produce a point of meeting. By this means it is obvious that though a course of conduct, generally moderate and frequently prudent, may be determined on, no higher or more complete truth, and consequently no more consistent principle of action, can possibly be attained. By a reconciliation between conflicting doctrines, on the contrary, we understand an elimination from each of the elements of falsehood by which the conflict is occasioned, leaving as a residuum the essential truths between which conflict is, of course, impossible.

We have felt strongly tempted to quote some well-written lines the political condition and prospects of France (p. 62); but lack pace compels us to refrain. It is right, however, to correct an