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law, or any benefit that they can derive from it, so as to gain their hearty assent and countenance to it. The sole appeal being to force, tends to beget in their minds suspicions that the law is not for their benefit, but for the interest of the legislators themselves, at their expense; and unhappily, legislators have often given their people too good ground for such suspicions. And so a disposition is generated in them to evade the law, or to trample it under foot if they dare. We do not say that laws should be unsupported by the threatenings of pains and penalties on the violators of them. But the chief reliance of legislators for obtaining obedience to their laws, should be the justice and beneficial tendency of their enactments, and the intelligence of the people to discern these attributes of the law, and the good dispositions of the people to maintain the peace and good order of their community. And the pains and penalties should be rather kept in reserve in case of necessity, than paraded in front and rear of the law, as the only ground on which it is expected to be obeyed.

One great advantage of the introduction of juries drawn from the mass of the nation into the execution of the law is, that it tends to make the people generally acquainted with the law and with the reasons for its requirements. Barristers are thereby obliged to make their pleadings intelligible to juries, that is to the mass of the population. Judges are laid under the same necessity in their charges and explanations of the law. The necessity goes back to the legislature, which must render its laws capable of being explained by judges and barristers, and of being understood by the people. And all that is further wanting is the bringing up the minds of the people to such intellectual culture, as shall enable them to understand the charges of the judges, and the pleadings of the barristers.

In the criminal law, the advantage of juries is shared

alike by England and Scotland; but we conceive that England has a high advantage over Scotland in the administration of the civil law not criminal, by the introduction of juries into its law courts, to pronounce upon the merits of the question brought under litigation. In Scotland, no civil case is decided by a jury. Juries have of late years been introduced to ascertain certain points in connection with civil suits, analogous to those points which are referred to Masters in Chancery, in England, by the Lord Chancellor. But they are never permitted to pronounce upon the merits of the whole case under litigation; that being left for the decision of the Lords of Session, as judges. The immediate result of this arrangement is, that the pleadings of the advocates being addressed exclusively to the judges, are couched in technical language, utterly unintelligible to the public; and the decisions of the judges are given forth in a style more like the response of a pagan oracle than the declaration addressed, as it ought to be, to the whole nation, of a law in which all are interested. They are couched in a language which is neither Scotch, nor English, nor Latin, but a barbarous mixture of all three, intelligible to no class of human beings under the whole heaven, but the legal corporation of Scotland. The next result is, that while the educated people of England are well acquainted with the general principles of English law, and value them, and evince deep interest in the decisions of their judges, the educated people of Scotland know little or nothing of their law, and have no further interest in it than so far as it regulates their own private concerns. The judges of England are prominent public functionaries, nearly allied to the highest statesmen of the realm, whose names and characters are familiar to all educated Englishmen. The Scotch judges are seldom heard of, and seem to possess little distinction of character beyond the limited circle of the profession. Some, indeed, have proved themselves to be

able men by their extra-official writings, and by their popular pleadings as barristers in criminal cases; but have instantly, on their elevation to the bench, sunk into obscurity. It is in vain that we look for such names as Hale, Mansfield, or Kenyon, in the history of Scotland. So utterly devoid of general interest has Scottish law become, that scarcely a passing notice of it is to be found in the popular cyclopædias of the day.

A much greater evil, however, arises out of its being shut up within the legal profession, than its being deprived of all public interest, namely, its uncertainty, and liability to abuse. The tendency of the decisions of the English judges is to merge minute distinctions, and to bring the law under broad principles, intelligible to the whole kingdom. This tendency is indicated by Blackstone in his expression, "The law loves uniformity.' The tendency of the decisions of the Scotch judges is to give weight to minute distinctions, so as to render the whole law unintelligible to the people. Attorneys, or writers, as they are called in Scotland, and lawyers of great practice are accustomed to say that they never can conjecture how a case will be decided, however clear it may appear to them; because they never can foresee what insignificant point may be swelled into importance, when it comes before the judges. An incident is said to have occurred in the law courts of Edinburgh of such a nature that if it had occurred in England, it would have been felt to the extremity of the kingdom. When causes are brought before the chief court, called the Court of Session, in Edinburgh, they are, in the first instance, heard and decided upon by one of the judges sitting as lord in ordinary, as the phrase is, from whose decision there is an appeal to the inner house, where a certain portion of the whole bench sit in judgment upon it, and from whose decision there lies no appeal, but to the House of Lords. One of these lords in ordinary, after hearing a

* Comment., Book II., Chap. iii.

cause, is said to have addressed the advocate for one of the parties to the effect, that he was sorry that their case was so plainly and palpably right in law, that he must decide in their favour, for he knew that his decision would be reversed in the inner house. This astounding charge brought against the integrity of the supreme court of law in Scotland by one of the judges of that court, sitting and acting in his official capacity, passed in Edinburgh for a mere sarcastic joke, and was scarcely heard of beyond the legal circle.

Nor is this uncertainty the worst effect of the administration of the law being confined to the legal corporation. It is rendered by that means liable to abuse, and to be converted into an instrument of injustice and oppression. Their decision in the case of the Church of Scotland, by which 400 ministers were forced to resign their livings, or to do violence to their consciences, was one in which the Crown, the aristocracy, and the courts of law had a direct interest, as against the liberty which the Church claimed, not on its own behalf, but in behalf of the people of Scotland; * and the ministers and people

* From the technical manner in which the law courts of Scotland give forth their dicta, the English public could never be made to understand that the object which the majority of the Scottish clergy sought was not the power of their own courts, but the power of the people to reject such presentees of patrons as they disapproved of. The whole subject under litigation was so mystified by legal technicalities, that tories, whigs, and radicals were alike unanimous in trampling underfoot the rights not of the clergy, but of the Scottish people. The liberties of the clergy did not come into question till an advanced state of the conflict, when the law courts assumed authority over the church courts, which never had before been claimed; and attempted, by threatening the ministers with pains and penalties, to force them to ordain presentees whom the people had rejected; and that, for the purpose of giving to these presentees a legal right to the emoluments of the ministry. The church courts had nothing to do with the emoluments of ministers, nor did they for a moment dispute the right of the law courts to dispose of these emoluments as they might see good; and if the law courts, being dissatisfied with the church courts, had kept the emoluments in abeyance, or had obtained liberty from parliament to bestow them on the patron's presentees

of the Free Church have the testimony not only of many of the ablest lawyers in the kingdom, but of a considerable portion of the very judges of the Court of Session itself, that the decision was in direct opposition to the principles of the law, and to the practice of the court for two centuries. And when that court sent out its nominees to ordain men to the sacred ministry, on its

without ordination, there would have been no disruption. But conscientious ministers could not permit a sacred ordinance to be degraded to the rank of a mere legal ceremony, to implement a right to an income and the occupation of a house. It was this degradation of the worship and the service of God that roused the spirit of so large a portion of the ministers and people of Scotland, and determined them rather to forego the benefits of a state provision for their church than to permit themselves to be implicated in so scandalous a profanation.

We deplore the disruption, except on account of the immediate good that it has produced. The excellency of the ecclesiastical system of Scotland was manifested in the disruption itself. It was in the Established Church of Scotland that those high and noble principles were fostered, which impelled so large a body of ministers to part with all their worldly property, and to cast themselves on the providence of God and on the Christian character of their people for a provision for themselves and their families. We dread the voluntary system into which they have been thrown, chiefly because it gives too much prominence and importance to the money element in their deliberations, which we fear will tend to lower the spiritual tone both of ministers and people, especially the latter. Questions of money never came before the courts of the Established Church of Scotland. The funds of the church were under the absolute control of the law courts, and that control the church never complained of, nor disputed. The ministers were frugally supported from a fund that belonged to no one; and therefore by their support no one was injured. The advocates of the voluntary system often take credit to that system for the splendid liberality manifested by the members of the Free Church. It is true the money was contributed on the voluntary system; but the zeal and devotedness to God which called forth the contributions, were fostered under the system of the Established Church of Scotland. Again we say that we deplore the disruption, and would rejoice in any prospect of the breach being healed, by the legislature manifesting a disposition to guarantee to the church, not its emoluments, but its liberty of spiritual action. All that the church courts ever demanded of the law courts, was, "let us ordain whom we will, or abstain from ordaining whom we will, under the direction of the Word of God; and do you dispense or withhold the emoluments of the church as you will, under the direction of the law of the land."

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