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sition, laugh at him, whereupon he takes his arms, and beats them terribly. Now the inhabitants of the castle come out of its walls, receive him with the highest honours and triumph, conducting him to the castle. Great festivities are given, and the virgin tells how the knights of the table
round have been all vanquished by the old man, who takes next morning leave of the castle, refusing all its treasures offered to him, only praying the virgin to carry a letter he is giving her to King Arthur. The fragment concludes with these words:
Ὁμολογει τὰς κάριτας, δεσποίνη, καὶ τοῖς οὖσι,
The late Mr Henry Weber gave already a short, but very elegant, account of the German Poems on the History of Sir Tristrem, in an Appendix to Sir Tristrem, by Thomas of Erceldoune, edited by Sir Walter Scott. Some very slight errors only have crept into this account, that we shall here amend.
There are known four widely different German poems on the history of Sir Tristrem.
1. A German Translation of the French Poem of Chrestien de Troyes, not yet discovered, but mentioned in other German contemporary writers and poets.
2. A German original Poem on Sir Tristrem, by Eilhart von Hobergin, whereof a manuscript is found at the Royal Library of Dresden, consisting of 7727 verses, (not 7699, as Mr Weber says.)
3. The third German Poem is by Segehart von Babenberg, (or Bamberg, in Franconia,) now at the library of the University of Heidelberg, among the manuscripts restored by the Pope from the Vatican Library, where they were brought in the war of 30 years.
4. The fourth is by Gotfrit von Strasburgh, with two Continuations, one by Heinrick von Vriberg, the other
by Ulrick von Turheim. This poem, with the Continuation of Heinrick von Vriberg, has been printed after a copy of the manuscript in the Magliabecchian Library at Florence, in Müller's Collection of German Poems of the Twelfth, Thirteenth, and Fourteenth Centuries, (Berlin, 1785, 4.) This edition, made in a shameful, hasty, and incomplete manner, has been now superseded by Mr Von Groote, who, after having consulted different manuscripts, has now published the poem of Gotfrit von Strasburg, with the continuation of Ulrick von Turheim. The value of this continuation, more poetical and beautiful than that of Heinrick von Vriberg, is more adequate to the value of the poem of Gotfrit von Strassburg, of whom Ulrick von Turheim is not an unhappy imitator. This new edition has been made by comparing six different manuscripts, quite as we do with the classical writers, filling up all the incoherencies, and adorned by a very well elaborated Glossary of the old German language, so that we may say Sir Tristrem is now making his appearance in Germany, in the same dignified and beautiful shape, as Britain admired him already so long ago.
MR T. F. KENNEDY AND THE EDINBURGH REVIEW.
To the Editor of Blackwood's Magazine.
I WAS hopeful that Mr Kennedy's bill might have escaped remembrance, and that the author of it might in due time have emerged from the abyss of unpopularity and ridicule into which he had fallen, in his rash endeavour to innovate on a system of criminal law, perhaps the purest, most efficacious, and most humane, that any people, ancient or modern, could boast of. But his friends of the Edinburgh Review have imprudently revived the recollection of Mr Kennedy's misadventure, and have held him up again to public observation, ere the feeling excited by his last appearance could have subsided. They have unwisely resumed the very subject of his misfortune, and have professed to vindicate those attempts which he had been forced to abandon, by a prevailing sense of their hopelessness and their folly. The reviewers have even endeavoured to pave the way for a renewal of the same attempts; and if I understand them right, Mr Kennedy is to become a second time the martyr of untempered zeal, mistaken ambition, or boundless presumption.*
Every attentive reader will however perceive, that the Edinburgh reviewers do not in fact defend Mr Kennedy's bill. They in reality expose and blast that bill, while they profess, and perhaps endeavour to shield and support it. The reviewers revel in speculation and fancy; they reject experience-disdain the limits which practical utility would prescribe and vent their unreasonable discontent on the unoffending law of their country. No doubt, this, to a certain extent, is the vice, likewise, of Mr Kennedy's bill; but the reviewers go a great deal farther-they find fault with many things which Mr Kennedy was content to leave, for the present, in the excellent state in which they had been bequeathed to him by his ancestors. I intend, with your per
mission, by and bye, to make a few remarks on the original notions of the reviewers; but in the meantime, I wish to discuss the merits of MR KENNEDY'S BILL, with which we are again threatened.
That bill is constructed so as to introduce just two changes on our system of criminal law. These changes are, 1st, That out of the list of 45 jurymen returned for the trial of any case, the fifteen, or smaller assize, who actually try the case, shall be chosen by ballot, instead of being named by the judge, as at present. 2d, That each of the parties shall be allowed to challenge and set aside a certain number of jurymen, without assigning any reason. The number of the challenges is not filled up in the bill; but I understand that Mr Kennedy mentioned, in the course of his speech in the House of Commons, that three was the number he intended to propose. The reviewers say, four-I care not which. The bill contains no other provisions of any kind; and accordingly, the reviewers beseech all who are interested in the matter, to view the bill as a detached measure. "The reference (say they) which is made to all other parts of our criminal jurisprudence, is misplaced and absurd; for this, if people will only take it so, is a simple and detached measure, one of the great recommendations of which is, that while it must virtually improve the rest of the system, it leaves the whole of its forms and principles unchanged." This is very like nonsense; but I suppose it is intended to represent the measure as totally insulated: for in another passage the reviewers say, that they "admire the cautious wisdom with which the plan has been conceived, and perceive. in the singleness, simplicity, importance, and obviousness of the improvement to which the honourable member has limited his attention, a proof
There is strong reason to believe that Mr Kennedy is apt to fancy himself a much greater personage than he really is. It is related of a distinguished character of antiquity, that he caused an attendant daily to remind him of his frailty, by proclaiming in his ear, "Remember thou art not immortal!" Some kind friend should recommend to Mr Kennedy, to hire a trusty clerk, part of whose daily duty should be, to whisper in his master's ear, as he set out for the House of Commons, this salutary information, 66 Remember thou art not Romilly!"
that he is actuated by a desire to accomplish some attainable good, instead of yielding to the usual ambition of introducing changes that are comprehensive, and for that very reason, are almost certainly impracticable."
I intend to comply, as far as possible, with this wish of the reviewers, to consider the merits of Mr Kennedy's bill, as a 66 detached," "single" measure. To discharge this duty strictly, it would be necessary for me to throw out of view about four-fifths of what the reviewers have said upon the subject; for that much of their dissertation relates to alleged imperfections in various parts of our system of criminal law, which Mr Kennedy's bill is neither calculated nor intended to remedy. I shall, however, before I stop, take occasion to expose the ignorance of the reviewers on almost every topic which they handle; and this may be done perfectly in place, because a very few observations indeed will be sufficient to convince any one who knows or thinks on the subject, that Mr Kennedy's bill cannot exist to any effect at all, as a detached," "single" measure; and, if attempted to be operated upon as such, must produce an infinitude of mischief, without the possibility of doing good.
In reasoning on this subject, it is necessary to keep in view the following simple and familiar principles:Ist, The object of every system of criminal law is to detect and punish guilt; and consequently, the system which most surely and speedily accomplishes that object, is the most perfect; and every thing in the system which has a tendency to impede er defeat that object, is a defect. This principle is subject to necessary modifications, for the protection of innocence; but the general principle holds good, and without it no system of criminal law can exist. The safeguards for innocence differ in almost every system, and may with equal effect be placed at different stages of the proceedings; but in general it may be held, that those safeguards for innocence are the best, which interfere the
least with the detection and punishment of guilt. 2d, When a system of criminal law has existed for a long course of years, and has become matured, all its parts acquire an aptitude for each other, and it is nearly impossible to remove or alter any of them, without affecting others, and endangering the whole fabric. 3d, When a system of criminal law is found by experience to accomplish the great object, the detection and punishment of guilt, with a due regard to the protection of innocence, and to be free from any practical evil, that system ought not to be rashly innovated upon, and ought not to be touched at all, for the mere purpose of removing alleged theoretical defects, unless the received maxims of philosophy are inverted, and experience made to give way to theory.
Applying these familiar principles to Mr Kennedy's bill, I would ask two questions:-1st, Is there any system of criminal law in the world, which is found in practice to approach nearer to the standard of perfection than that of Scotland? 2d, Admitting that the Scotch system does not come up to the standard of perfection, (and what human system can boast of perfection?) is it certain that Mr Kennedy's bill will bring it any nearer to that standard?
To the first of these questions I give a decided answer in the negative, and I challenge comparison. I do so with especial confidence on the point of furnishing the accused with every means for a just defence, which is the point on which Mr Kennedy's bill is avowedly intended to bear. To go no further than the sister kingdom, from which Mr Kennedy proposes to borrow, I observe, that the accused there wants many advantages which in Scotland he possesses. In Scotland the accused is served with an indictment 15 days at least before the day of trial. That indictment must specify distinctly and truly the particular criminal act which the accused is to be tried for; and likewise the precise place and time when that act was committed. To this indictment must be appended lists, con
*An eminent Whig counsel once a crown lawyer, and perhaps still an aspirant-had lately occasion, while pleading a case in the Court of Session, to draw a parallel between a summons in a civil case and a criminal libel. In doing so, (it is said,) he asserted that a criminal libel must not only specify the time, and place, and mode of committing the offence, but must likewise set forth all the circumstances by which the prosecutor intends to bring home guilt to the accused." Notwithstanding this high authority, I
taining the names and designations, and places of abode, of all the witnesses to be examined against the accused, and of the 45 jurymen, from among whom 15 are to be selected to try his case. He has thus an opportunity of knowing precisely what is to be proved against him-of learning the character of every witness to be examined against him, and of every juryman who is to sit upon his case; he has ample time to prepare a proof of any facts he may wish to establish, and he is furnished with authority to compel the attendance of any witnesses he may wish to examine. But further, he is allowed the aid of counsel, and if he is poor, counsel are assigned him by the court. When brought to the bar he is allowed to object to the indictment if it is not sufficiently specific, or if the facts set forth do not amount to the crime charged, and it is his right to have a judgment of the court upon any of these points before the prosecutor is allowed to ask a verdict from the jury, and if the court is of opinion that the indictment is not sufficiently specific, or that the facts do not, in point of law, amount to the crime charged, the proceedings are cut short, the indictment never goes to a jury, and the accused is not exposed to the conse quences which might result from the operation of the prosecutor's influence and talent on the minds of docile jurymen. If, however, the case is sent to a jury, the accused may object to any number of the jurymen, if he has sufficient ground in law for doing so; he may, in like manner, object to any witness, even on the ground of a slight error in designation. After the proof is concluded, and the prosecutor has addressed the jury, the prisoner is allowed to reply by his counsel; and indeed in every stage of the proceedings he has the last word. Finally, the jury must conduct their de liberations, and commit their verdict to writing in perfect seclusion. When once written, the verdict, however faulty, cannot be altered or amended in the smallest particular; and the slightest flaw, even in point of form, entitles the accused to be set at liberty for ever.
Here is a combination of advantages to the accused, unknown in any other country, and to every one of which, the law even of England is a stranger. Indeed, one of the greatest and most popular lawyers of that country, a strenuous advocate for freedom,* has recorded his opinion, that some of these provisions are so favourable to the accused, as to be almost incompatible with the efficacious administration of justice. The law of Scotland, therefore, does afford sufficient advantages to the accused, and it matters little in what shape, or in what stage of the proceedings this is accomplished. Excess may, however, be committed on this, as well as on the opposite side, and such advantages may be given to the accused in different stages of the proceedings, as will, when combined, defeat in a great and pernicious degree, the grand object of detecting and punishing guilt. Some think that our system already errs in this respect, but Mr Kennedy thinks otherways, and proposes to leave to the accused all the advantages he already possesses, and to join to them all those which in England are considered to be of themselves sufficient, thus condemning both systems as unjust. For if the Scotch system is to be properly balanced, when the advantages (real or imaginary) secured to the accused in England are superadded to those already secured to him in Scotland, surely the English system, which wants the greater share of these combined advantages, must be woefully bad, and must in its turn be amended.
Let us now see how Mr Kennedy's bill would operate. I must here observe, that the bill is not so framed as to apply to the circuit courts at all: therefore, there is to be one law at Edinburgh, and another at Glasgow. The reviewers say, that "it has been publicly explained that the bill is meant to apply to circuits, as well as to the court at Edinburgh." But they admit that "as it now stands it would only apply to the latter." Passing over this egregious blunder, which only shews Mr Kennedy's ignorance of the practical operations and details of that system which he proposes to amend-let us proceed.
cannot find that such has in any instance been the practice of our crown lawyers-indeed, I do not see that the thing is practicable, or that it would be either useful or convenient, though it could be attained.
Sir Michael Foster.
I have already remarked, that any error in the formation of a written verdict, entitles the accused, though found guilty, to be set at liberty. It is therefore proper, that in every jury there should be at least one person whose education and habits qualify him for the duty of committing the verdict to paper in proper form. And when the judge names the 15, he takes care that there shall be one such person in every jury. If, on the other hand, the jury were to be chosen by ballot, it might frequently happen that none of the 15 could perform this duty correctly; for with us there are no persons (as there are in England) who make a trade and livelihood of being jurymen; and the guilty prisoner would always challenge the best and most intelligent jurymen. To this the reviewers answer, that "it is notorious, that it has been often proposed to put an end to them (written verdicts) altogether; so that it would be a recommendation of this bill, if it hastened the period of their total abolition." Now, I confess that I never before heard of this notorious proposal. I should like to know by whom it was made. At all events, the mere fact of a thing having beeu proposed, is no reason why it should be adopted or encouraged. It is notorious, that it has been often proposed to put an end to the British Constitution altogether, and to introduce annual parliaments and universal suffrage; but it does not thence follow, that it would be a recommendation of any measure, that it would has ten the period of the total abolition of the British Constitution. But, further, it will be observed, that this argument of the reviewers is quite hostile to the notion that Mr Kennedy's bill is a "simple detached measure," which is not to interfere with the rest of our present system, but, on the contrary, to leave the whole of its forms and principles unchanged." Another remedy proposed for the evil now alluded to, is to give the Judge power to remand the jury. I must take the
liberty to say, that theoretically, this power seems much more objectionable than the power against which Mr Kennedy's bill is directed. The judges in England no doubt have the power to remand juries, and long practice has now placed this matter on a proper footing in that country; but if we look back to the records of their State prosecutions, we will find innumerable complaints founded on the abuse of the power to remand juries; and so jealous were our ancestors of any interference of the court with the verdict of the jury, that they required the verdict to be written in perfect seclusion, and declared that when once written it should be unalterable. But in the present view of the case, it is sufficient to observe, that the very proposal of these remedies is an admission, that Mr Kennedy's bill is to bring along with it new evils, for which fresh remedies must be provided by other hands; and this just confirms my assertion, that the bill cannot exist as a simple detached measure,-that it cannot operate along with the other parts of our present system,-and that we must therefore be prepared to launch into a boundless sea of changes, or we must resist the bill in toto.
The system of chusing a jury by ballot would bring along with it many other evils besides the one already mentioned, and not the least of these would be the great inconvenience it would occasion to jurymen. The persons on whom the duty of jurymen devolves in Scotland, perform that arduous and important duty with promptitude and fidelity. Their gratuitous exertions deserve the highest applause, and I fear the best days of Scotland's independence will have passed, when the country gentlemen and yeomen cease to perform gratuitously* and cheerfully those services to the community which, as magistrates, as jurymen, as constables, as soldiers, and in a thousand other capacities, they now perform. It should therefore be an object of the utmost care of the legislature
* In England there are persons who make a livelihood by being called to act as ju. rors. In Scotland the duty is performed rather at an expense to the juryuan, consequently the Juries must be more independent,-for it is the interest of the paid juryman to make himself useful and agreeable to those who have the power to give him his livelihood, or deprive him of it. I say that the duty is performed in Scotland at an expence to the jurymen, because they have to travel a great distance to attend the circuits, and have to maintain themselves for several days, and they receive nothing.—In Edinburgh, they receive half-a-guinea, which is quite insufficient to indemnify them for loss of time, and which, in fact, they almost always bestow on charitable objects or institutions.