depends greatly on the latter. The latter is the precedent matter, which it is the business of the Criminal Law to enforce by its responsibilities. Yet we are willing that the two works should be intrusted to different hands, working at the same time, and in communication with each other, under the direction of the same presiding authority.

Mr. Amos puts well, too, the difference between the work of Consolidation and the work of Revision.

"In remodelling the Statute Book, it is to be observed that there are two very distinct operations to be performed: one, the consolidating of dispersed enactments in force, and making way for it by repealing what is to be more methodically reenacted; the other, the eliminating of whatever has been, or is, obsolete or expired."

Upon this matter "Earnest" has some good remarks, which we would quote, if our limits had not been already reached. Again we call upon him to publish his pamphlet in regular fashion, that all may have access to it.

We have dwelt at large on this subject, for it is the very topic of the day, cabined, cribbed, confined by those who have charge of it, and wanting but an imperial will and resolute pertinacity to be realized. But in this country we have no will nor united purpose; the rulers wait on the people, the people on their rulers: by propagating common notions on the subject, we may come to a common action.

POSTSCRIPT.-We regret to find that the vote to be taken for the present year is to be only 1,9111.; being 1,000l. for Mr. Bellenden Ker, the paid Commissioner; 600l. for Mr. Brickdale, the secretary; 100l. for a clerk; 807. for a messenger; 311. for a laundress; and 1007. for contingencies.

For draftsmen and other aid-nil. A sum extravagantly inadequate for the work: no good honest work can be done with such means so employed.

ART. XI.-LAW OF EVIDENCE IN SCOTLAND.

A Treatise on the Law of Evidence in Scotland. By WILLIAM GILLESPIE DICKSON, Esq., Advocate. In two volumes. Edinburgh Bell and Bradfute. London: William Maxwell. 1855.

WE

:

E mean it no disparagement to the learning of what is called the Law of Evidence when we say that we know of no department of practical jurisprudence which is more intelligible, or more easily or plainly resolvable by obvious and rational principles of analysis. Not only without, but in its nature and office opposed to, artifice and chicane, evidence is the one broad field of the domain of law, where truth, its security and protection, constitutes the whole system. As an instrument of justice, it has no technicality: it is incapable of subtlety, and cannot be refined; and if it has acquired any distinctive learning of its own, that has been owing rather to experience of the obscurity and fraud of testimony, than to the studious elaboration of lawyers. And in its improvement it has advanced so rapidly and liberally, that the distance between admissibility and credibility has all but disappeared, if, indeed, the latter has not altogether taken the place of the former. There is more evidence now,-nay, let us ask what is not evidence now, whether conclusively, or relevantly, or quantum valeat? So that if we have not yet fully realized it, we may hope ere long unrestrainedly to put in practice the very satisfactory conclusion with which Jeremy Bentham consummates a great deal of deep thinking, obscure metaphysics, and difficult reasoning, on what, with improvised verbiage and the pertinacious iteration of sustained contempt, he denounces as "the incongruities" of our system; namely, that—" 1. There is but one perfectly good and fit mode of collecting evidence;" and, "2. That this is no other than what common sense suggests; and as far as power and opportunity admit, and the importance of the occasion appears to demand, is naturally and commonly

practised in the bosom of every private family;" that is to say, if we may be allowed the application, Courts of Justice in their examination of facts ought to be guided by the same common and natural instincts which regulate the communications and intercourse of society, or (hinting delicately in the direction of nisi prius controversy) of one gentleman with another! Such, after all, is the climax of our subject-such the triumph of "common sense"! Yet, despite this simple reduction of its great dialectician, evidence, in presence of his own labyrinthic subtlety, was a deep and anxious matter, and it has continued to tempt the wanderings of the juridical student-it has had its philosophers and its legal speculators; nor has it been unvisited by the dreams of its nebulous thinkers,-nay, it has hardly had an author who has not deemed it necessary to introduce his exposition of its very practical qualities, by a certain amount of metaphysical lore and fine writing. Of this tendency to learned surplusage we could give numerous illustrations, and demonstrate how clear and strong-headed authors of excellent books may be tempted into reflections and inquiries, either not relevant to the matter in hand, or unsuitable and unnecessary to its consideration. Mr. Best's treatise is perhaps less open to objection on this score than any similar one, although it is professedly and characteristically a theoretical treatise. It is a work on the analytical qualities of evidence; and he has certainly shown great ability and ingenuity in turning the principles of examination, which he applies to his subject, to practical account. But almost all writers on evidence, since at least the days of Jeremy Bentham (whose troublesome fire they have either imagined they have caught, or felt it their duty to appear to catch!), have been more or less addicted to redundant philosophizing. In regard to Scotland, and foremost among these contemplative literati, stands Mr. Glassford, a learned and worthy gentleman of the Scotch Bar, who, in the attempt, some forty years ago, to turn an intended article for the Encyclopædia Britannica into a book, produced a treatise distinguished more by the elegance of its style and its scholarly diction, than by its forensic utility. Mr. Glass1 Bentham's Judicial Evidence, chap. xx.

ford wrote in the days when Scotch lawyers were animated by a literary ambition, which was not considered to be beyond their profession; and it cannot be denied that the work has great literary, and even considerable didactical merit, although, for the purposes of instruction in the rules and practice of evidence, we would hardly put into the hands of students, and much less into those of gentlemen engaged in legal business, a book which, notwithstanding the deference it evinces for "testimony" and the aforesaid "common sense," delights in the racy discussion of such topics as "sense," "consciousness," "memory," "the moral faculty," "testimony," "judgment and reasoning," "demonstrative reasoning," "probable reasoning," &c.! We hope we do not scandalize our sentimental readers, if we declare that we would leave such erudition to keep company with the German pundit and his pipe, while for our part we would proceed to business.

And to those of the same humour Mr. Dickson's work will commend itself at once. There is about it a lawyer-like tone and purpose, very much to our liking; and it is with the feelings of kindly critics that we regard its well-filled pages. Mr. Dickson, as a writer on the Scotch Law of Evidence, was preceded by Mr. Tait, of the Scotch Bar, a gentleman who contributed a very excellent and useful volume, which was long held in great esteem by the Courts; for, while Mr. Glassford was rounding his periods, Mr. Tait was busily occupied with the composition of a work very much more to the purpose. In the preface to the first edition he thus alludes to the circumstance :

"The author had this work nearly ready for the press, and had written this preface, when Mr. Glassford's work on evidence was published. But, although that work contains enlarged and interesting views on the general sources and principles of evidence, it did not appear to him to supersede the occasion for a work of more detail and reference to authorities for practical use."

The same preface begins thus:-

"In every country in which jurisprudence has been cultivated, the rules of evidence have been considered as one of the most interesting and important branches of the law; and in most countries they have been suitably attended to, collected, and arranged by

institutional writers. In Scotland, however, they appear to have been in a great measure overlooked. They are not to be found in any one place in a systematic form, and must be collected from a few brief notices by Lord Stair and Mr. Erskine, and from a great multitude of decisions, ancient and modern, sometimes not very easily reconciled with each other, dispersed through a very voluminous series of promiscuous reports, and even through many different heads of the dictionaries (of decisions)."

Such was the state of things as to the Law of Evidence in Scotland little more than thirty years ago! Mr. Tait's preface is dated the 12th November, 1823, or nearly nine years after the institution of trial by jury in civil causes!

Further in the same preface Mr. Tait says:

Perhaps some persons may think an apology necessary for so little reference being made to the law of England. But, although the English system of evidence, taken as a whole, with the mutual dependency of the various parts upon each other, may, in practice, be found to be a very equitable system, perhaps LITTLE INFERIOR to that of Scotland; (!) yet the author has not been able to discover, notwithstanding a pretty extensive consideration which he has felt it to be his duty to bestow upon that system, that it would be at all suitable or expedient, except in certain rare cases, and with extreme caution, to introduce detached fragments from so different a system, in order to supply any blanks that may be supposed to exist in the law of Scotland, and still in any case in order to displace any of its ancient homogeneous doctrines."

Indeed, after declaring, as he at least plainly leaves us to infer, that "the English system of evidence" is inferior-" perhaps little inferior"-to the system in Scotland, where, however, the rules of evidence, as he informs us, "appear to have been in a great measure overlooked" (what a sad plight must we then have been in!), we need not be surprised that Mr. Tait should not have discovered, by his "pretty extensive consideration," anything particularly good in that department of practice on which, of all others, the English lawyer piques himself.

Accordingly, Mr. Tait's work-if we may except a few references to Peake and Phillips on evidence by Acts of Parliament, Gazettes, and other public documents-is almost exclusively founded on the Scotch Municipal Law. It is indeed all Scotch but the name of its subject; for the term "evidence" is purely English, and in Scotch law is an English importation. The old Scotch term is "probation," under which will be found, in the respec