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public we would say that it is a discreditable thing to Scotland that its scholars should have no efficient public library to supply their wants, and that, considering the vast difficulty and expense of establishing one upon a new basis, the best and cheapest thing they could do would be to enable the Faculty of Advocates to continue the privileges they have long afforded them over a fuller and better selected collection. If, by good fortune, the public and the Faculty should happen to agree on these points, we may modestly hope that there may be a few Scotch members who have still sufficient interest in Scotland and in Scotch students to press the matter upon the attention of the Government.
Lord Cockburn's Works. 2 vols.
Life of Jeffrey and Memorials of his Time. Edinburgh: A & C. Black. 1872.
WE thank the Messrs. Black for this fine edition of these interesting works. The type is clear, the paper excellent, and the general get-up of the work is in unexceptionable good taste. Jeffrey's "Life" has been compressed into one volume, which makes it more handy and convenient than the former two-volume edition. The "Memorials" is a book that Charles Lamb would have loved-gossiping, humorous, quaint, and original,-one of the kind of books to be read, not over a winter's fire, but out in the open air, at Bonaly or on the Pentlands, in sight of the scenery and city which Jeffrey and Cockburn loved so well. Though both of these men were lawyers, it is not as lawyers that the public now remembers them, or takes an interest in their career. As advocates and judges they did their daily legal task-work faithfully and well, but they did much more than merely accumulate briefs and hoard up fees. Both took an active part in public political life, and by their voice and pen gave their fellow-citizens their help and counsel at a critical period of our country's history. It is impossible to read Cockburn's account of the state of political parties and feeling in Scotland prior to the passing of the Catholic Emancipation Act, and the Reform Bill of 1832, without feeling ashamed of one's country. Bench and Bar were equally corrupt, and so influenced by political prejudice, that a Whig in politics was then as much shunned and shut out of society as Sir Charles Dilke and his followers are now. Brougham, Horner, and others holding Whig, or what were then called Jacobin or revolutionary opinions, felt their position at the Scotch bar so uncomfortable that they betook themselves to the wider and serener atmosphere of London and the English bar. Jeffrey and Cockburn, being less daring and adventurous, stayed behind, and for a long
time suffered, as all do who struggle for the truth, a sort of political and professional martyrdom. Numberless passages could be quoted from these volumes to show how politically, intellectually, and morally dead Scotland was in those days, which some people still delight to call the good old times. One is at a loss to know how people lived through them; how the sight of so much corruption, severity, and distress, did not goad men into open rebellion. Perhaps it may be accounted for by the fact that men's hearts were harder at that time, when "a hanging" for theft was an every-day occurrence, and human slavery was recognised as a divine and almost Christian institution.
Those (says Cockburn in his Life of Jeffrey) who remember the vear 1810 can scarcely have forgotten the political spite that assailed the rise of the Commercial Bank, because it was proposed, by knowing no distinction of party in its mercantile dealings, to liberate the public, but especially the citizens of Edinburgh. Thus, politically, Scot'and was dead. It was not unlike a village at a great man's gate. Without a single free institution or habit, opposition was rebellion, submission probable success." And again, when describing the effect of this political intolerance, he says: "There was no place where it operated so severely as at the bar. Clients and agents shrunk from counsel on whom judges frowned. Those who had already established themselves, and had evinced irresistible powers, kept their hold; but the unestablished and the ordinary. had little chance. Everywhere, but especially at the bar, a youth of a Tory family who was discovered to have imbibed the Whig poison was considered as a lost son.". This was no mere figure of speech, but a stern reality, which Jeffrey felt in 1801, when he was a candidate for the humble post of reporter of the decisions of the Court. At that time there were only two reporters, and they were elected by the Faculty of Advocates. Jeffrey was proposed as a candidate by Henry Erskine, but he was rejected on account of his politics, and a younger and less fit man chosen. Lord Glenlee had no vote in the election, but it was thought, says Cockburn, "that he might have some influence, and as there was no avowed rupture, Jeffrey asked him to exert it in his behalf. But his Lordship took this occasion to tell him plainly that, in consequence of his politics, he could befriend him no more. They parted, and scarcely exchanged words for nearly thirty years." So much for the cordial relationship then existing between the bench and the bar. In 1796 Henry Erskine was Dean of the Faculty of Advocates, and one of the brightest ornaments of the bar. He, however, ventured to preside at a public meeting in Edinburgh to petition against the continuance of the war, and, in consequence of his having done so, he was turned out of office as Dean. Cockburn in his Memorials says, "Jeffrey, Cranstoun, and Thomas Thomson were ardent to vote for him, and never were easy in their minds for not having done so. But Thomson was obliged to yield to the wishes of George Ferguson, after
wards Lord Hermand; Jeffrey to those of his father and Lord Glenlee ; and Cranstoun to those of the Duke of Buccleuch; and none of them voted at all.” After reading this one feels a little tender compassion for those misguided men of the present day who belong to what are called trade unions, and exercise an unjust influence over their fellow-workers. Nor were things much otherwise on the judicial bench. Lord Eskgrove took an especial pleasure in sneering at Brougham, and calling him the Harangue, and the brutal Braxfield domineered over a Court which had neither the dignity to resent his insults nor the courage to resist his harsh and unjust decisions. "In those days" (1794), says Cockburn, "he was the Jeffreys of Scotland." "He, as the head of the Court, and the only very powerful man it contained, was the real director of its proceedings." "Let them bring me prisoners, and I'll find them law," used to be openly stated as his suggestion. Mr. Horner (the father of Francis), who was one of the jurors in Muir's case, told me that when he was passing, as was often done then, behind the bench to get into the box, Braxfield, who knew him, whispered,- Come awa, Maister Horner, come awa, and help us to hang ane o' these damned scoondrels.'" If a Judge now-a-days were to give utterance to such sentiments he would be forthwith removed from the judgment-seat. What has been done, however, may be done again, should the country get involved in political controversy and commotion, and the great use and benefit of " Cockburn's Memorials" is to imbue the present generation with a wholesome detestation of everything that savours of political persecution. Freedom of opinion is the only safeguard against tyranny; and the man who would punish or malign another because he happens to differ from him in opinion, is a sort of semi-barbarian, who has a greater regard for his own individual interests and conquests of opinion than a reverence for truth. For truth has been compared to a torch, that shines the brighter the oftener it is shaken, or, in other words, it is only by discussion, and a free current of all the airs of heaven blowing upon it, that the truth can be made free and known to all men. may seem trite propositions, but they require to be inculcated at the present time with all the force of novelty. Men are still persecuted for their opinions, and for conscience' sake. Society is not yet tolerant enough of what it dislikes, and there is a flippant restand-be-thankful sort of Liberalism, which would, if it durst, persecute and put down all opinions that trench beyond the narrow circle of its own selfish desires. The re-issue of these volumes will therefore do good, and, it is to be hoped, teach men to be more charitable and tolerant of their neighbours' opinions. We have left ourselves no space to speak upon Jeffrey's position in literature, and other topics which these works suggest, but one may recur to this subject in a succeeding number.
The late Judicial Appointment.—Mr. Alexander Burns Shand, Advocate (1853), Sheriff of Haddington and Berwick, has been appointed a Judge of the Court of Session, in room of the late Lord Kinloch. There is only one opinion with respect to Mr. Shand's fitness for the judicial office, for the universal expectation is that he will be a most judicious and efficient judge. His extensive experience and tried ability clearly entitle him to a seat on the Bench, even at the unusually early age of forty-three. Mr. Shand was brought into an extensive practice in his first years at the Bar; and that practice, due at first no doubt to exceptionally favourable circumstances and remarkable personal advantages, was retained and increased year after year by his great forensic ability and extraordinary tact. It must be admitted that no better Outer House judge than Lord Shand could have been selected.
It is however just because we can speak so highly of Lord Shand, that it becomes an easier duty to record the fact that the announcement that he had been recommended to her Majesty for the office, was received in the Parliament House with a feeling of pain not unmingled with indignation. We stated last month that the almost undivided opinion of the legal profession, and particularly of the Bar, pointed to another gentleman as having much stronger claims than Mr. Shand. We do not at present discuss the grounds by which this opinion is justified, because we shall probably have another opportunity of doing so. We hope that that opportunity may be afforded shortly by the resignation of one or more of our aged judges, and the tardy recognition by the Lord Advocate of claims which all but himself believe to have been too long postponed.
Nominal Damages in Actions for Libel.-The action brought by Mr. Hepworth Dixon against the proprietor of the Pall Mall Gazette is of somewhat more than merely literary interest. Several of our contemporaries have found it difficult to understand what is meant by a jury when they give nominal damages in an action for defamation, and it is not easy, at first sight, to understand a verdict for the plaintiff for a farthing damages in such a case. But the principles of law applicable to the subject are about as sensible as any which we possess.
The most obvious case calling for nominal damages only is where there is no actual injury resulting from the libel. In such a case it has been held that the jury may take into their consideration the question of costs-about the only instance in which costs are allowed to influence the minds of the jury. Again, where the defendaut publishes a statement bona fide, and without malice, the jury has been held justified in giving nominal damages only. Then we come to what we conceive to have been the case under notice, namely, a true but malicious statement calculated to injure the
plaintiff. It is sufficiently plain, we think, that the jury considered the plea of justification proved, but felt that there was some animus disclosed by the way in which the alleged libel was framed, which disentitled the defendant to a verdict which would carry costs. But any verdict for the defendant would carry costs, whilst a verdict for the farthing for the plaintiff did not, and the verdict therefore was about as sensible and equitable as any verdict ever delivered by a jury. It in effect says that the libel was true, but that the defendant ought not to have expressed himself in the way he did a way which showed that the criticism was rather savage than honest and bona fide, which the law requires newspaper criticism to be.
So much for the case generally. There remain one or two points upon which some observations may be made. We have stated above that the bona fides of a writer may be a ground for inducing a jury to give nominal damages. By a singular perversion this doctrine was called in aid by Mr. Dixon, who claimed protection from the law on the ground that passages in his works, which had given rise to the libel, were written and published with a pure and lofty motives. What would Mr. Dixon say to a thief who sought to arrest judgment on the plea that he stole out of pure motives of philanthropy towards some third person? The case, therefore, of Dixon v. Smith may go in aid of Reg. v. Hicklin, as establishing the most wholesome doctrine that no motives, however pure, can excuse the publication of literature which in its nature is impure. It is well that it should be remembered what was the test of obscenity laid down by Lord Chief-Justice Cockburn in the case of Reg. v. Hicklin. "I think," said his Lordship, "the test of obscenity is this -whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” One more observation as to the defence in Dixon v. Smith. Why, the plaintiff's counsel asked, was not the writer of the alleged libel put into the box to rebut the presumption of malice? There is a rule of law, which was laid down in an action against the publisher of a magazine, that no evidence can be given of the malice of a writer who is not the defendant, and for whose motives the editor cannot be liable, though he is responsible by law for his acts (Robertson v. Wylde, 2 M. & Rob. 101). And this of course cuts. the other way, and the evidence of the writer to prove that he entertained no malice towards the plaintiff could hardly be admissible in an action against the proprietor of the paper in which the alleged libel appeared.
Lastly, it will have been observed that, notwithstanding objection, Mr. Justice Brett allowed newspaper criticisms on Mr. Dixon's book to be read. This was perfectly correct. Mayne, in his work on Damages, observes that "it has been long established that other words or writings, not the subject of the present action, might be given in evidence to explain either the meaning or motive of the