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though the present conjuncture undoubtedly demands the most exemplary punishment; yet there are so many difficulties that lie in the way of making that punishment effectual, that I most humbly submit it to their Excellences, whether it is not more 'expedient to carry on a prosecution, which will be attended • with abundance of terror, and probably may end in a severe punishment, than to attempt a trial which, as matters presently stand, would certainly be fruitless.' The reasons why it would be fruitless are, that in the disposition in which the country now is, it would be utterly impossible to pick up a grand jury; for example, that would find bills against these rioters,' &c. Another difficulty is, that supposing bills were found, yet the liberty of peremptory challenges is such, that we could not possibly promise, out of the county where Glasgow lies, to find a jury that would bring the offenders in guilty. Whereas a prosecution for felony, or any less crime, is not, by the law of Scotland, liable to either of these inconveniences. For there is no occasion for finding of bills or presentments. Ilis Majesty's Advocate, by his single act, virtute officii, gives "the indictment; and, in the next place, by the law of Scotland, no such thing is known as a peremptor challenge; so that if we can find fifteen honest men for the jury, which is the number of Jurors in criminal trials in Scotland, we may have just hopes of 'success.' He therefore proposes a trial for mobbing.

'

Duncan Forbes was the greatest and the purest man, in the management of her civil affairs, that Scotland ever produced. He lived in distracted times, and when the influence of public opinion was low, with almost universal power; yet the most confidential correspondence of his whole life has lately been given to the public; and it is impossible to detect a single line of it that is not beaming with patriotism, humanity, and honour. He was right even upon this occasion; for, if the law allowed him to deprive these culprits of a Grand Jury, it was his duty, in existing circumstances, to do so. But who does not see the importance which he attaches, as a protection to the people, to these Grand Jurors? The public and the Lord Advocate were at variance; and he fairly reveals, that, in such cases, the latter is not omnipotent, so long as a Grand Jury must be consulted. The omnipotence of Forbes, on this occasion, was not dangerous. But what may be the case where a prosecutor, of a different character, is at variance with the public because he is wrong, and is disposed to turn his power against the liberties of his country, or cannot resist the temptation of distressing an adversary, or forego the opportunity of giving a momentary triumph to his provincial adherents?

It is no answer to all this to refer, as is commonly done, to the public spirit of the age, or to the responsibility of all the servants of the Crown. These checks are not to be depended upon with perfect safety, even in good times, and in bad times they cannot be depended upon at all. There are some who will never allow themselves to imagine that bad times can return. But this is a delusion which, though it be always encouraged by the immediate possessors of power, ought to be systematically resisted by every one who does not wish the blood and the groans of past ages to prove useless. Experience is lost, if it be not turned to the purposes of futurity. It is a lamentable proof of the blindness and insensibility of men, that merely because we happen to be living agreeably in our own day, we should forget that it is not much beyond a single century since the whole of Scotland was suffering under the most frightful persecutions, judicially performed. If such a King as the last of the Stuarts were ever again to be upon the throne, we have no idea that he would be long without a Minister like Lauderdale, or that such a minister would be much obstructed in his operations for want of an Advocate like Mackenzie. Before such persons could subvert the government, they would, no doubt, require to alter the manners of the age, and to change many other things which have since been made to stand in the way of arbitrary power. But how many things would they require to change, in the principles of that particular part of our system, which recognises a discretionary right of prosecution in a dependent of the Crown, uncontrolled by any legal obstacle interposed between him and those whom he chooses to spare or to accuse,-his prosecutions being accompanied by great power of imprisonment before trial,-and conducted at last before a Court which names the Jury,-has a right to declare acts to be criminal, for the first time, without a statute,and whose decisions can neither be assisted nor questioned by any other Judges? And let no one lean too securely on the boasted humanity of modern times. We shudder, for example, at the idea of torture, and wonder what sort of people they must have been with whom it anciently prevailed. Alas! how few years of faction would it take to restore even this enormity in Great Britain, if it were not checked by positive law? It subsists, we believe, at this moment, though this be the nineteenth century, in almost every part of the Continent of Europe; it is not very long since something like it was said to have been restored for a season in Ireland; and it was only legally abolished in Scotland in the reign of Queen Anne.

Since, therefore, it is true, that in an arbitrary government, ⚫ where the whole frame and order of things tends to make the 'favour of the sovereign the chief object of regard, and the sole ⚫ means of preferment, such an institution might be made an engine of injustice,' we are wasting time if we do not prepare for the evil day. We are bound to supply those constitutional barriers, which, though they may not absolutely prevent the recurrence of arbitrary power, always render its approaches more difficult and palpable. It is common to hear people talk of their determination to transmit the constitution unimpaired to their descendants. A meritorious boast. But we are afraid that, in Scotland, a good patriot must go somewhat further. If he merely transmits the constitution as he got it, he will give his posterity an inheritance for which they may not long have to thank him; for if there be no foreign or domestic calamity which shall extinguish all our liberties together, it may be considered as certain that the political system of Scotland must undergo complete revision. It is the duty, therefore, as it ought to be the glory, of each generation that is blessed with peace in its day for the task, to correct gradually what was neglected at the last great settlement; to look forward to the probable demands of an age not far off, and that will not demand in vain; to accelerate the era which, unless the progress of intelligence be stopped, is coming; and to send down the system not merely unimpaired, but greatly improved.

These reflections have been suggested by the perusal of the Essays which form the title of this article, and one of which is on The Powers and Importance of the Lord Advocate of ⚫ Scotland.' Having devoted so much to one of them, we can say no more on the rest. They are full of remarks and expositions on various parts and principles of our law and forms. There are some of these with which we cannot agree; but the work, which is meritoriously short, is all in a right spirit; and its general intelligence and independence is much to its author's honour. It is rare to see a professional person so free from the shackles of his trade. It is this that enables him to unfold the roots of those evils, the effects of which society long feels, without knowing where they are growing.

ART. VI. 1. Silva de Viejos Romances. Publicada por JACOBO GRIMM. Vienna, 1815.

2. Sammlung der besten Alten Spanischer, Historischen, Ritter und Maurischen Romanzen. Von. Ch. B. DEPPING. Altenburg und Leipzig, 1817.

3. Floresta de Rimas Antiguas Castellanas. Por D. J. NICHOLAS BÖHL de FABER. Hamburgo, 1821.

SPANISH poetry seems naturally to divide itself into two great

epochs, the one extending from the infancy of language and versification down to the reign of Charles V., the other commencing with the revolution then introduced by the imitation of the Italian models, and continuing to the present day. These periods are separated by broad and striking distinctions. The authors that belong to them stand opposed to each other in the whole spirit of their compositions--in the sources of their inspiration, in the end which they proposed to themselves, and the means by which it was to be obtained. In the former, we recognise that state of society when Poetry, instead of being the anxious task of a few, is the business or amusement of the nation at large; when it is characterized, not by the preeminence of some one individual, but by a general diffusion of imagination, overflowing in romance and song; when it knows and needs no foreign models, but animates its minutest productions with a spirit of intense nationality. In the latter, we perceive how naturally men are disposed, at a certain period of civilization, to abandon the poetry of impulse for that of artto prefer rules to inspiration-to adopt the literature of strangers -to translate rather than to create-and to imitate rather than to furnish models for imitation.

It is to the first, and certainly the more interesting period, that the works which we have prefixed to this article relate. The collection of M. Grimm is occupied principally with the ballads connected with the fabulous history of Charlemagne and his Twelve Peers. M. Depping's is a miscellaneous collection of Narrative Romances; and the Floresta of M. Böhl de Faber contains specimens both of the ballads and the short lyrical pieces which, under the title of Canciones, Villancicos, Chanzonetas, &c. fill so large a portion of the Cancioneros and Romanceros of Spain. In attempting to convey to our readers some idea of this great mass of popular poetry, it will be our object to sketch rather than to detail; to treat the subject only in its general features, without descending minutely into classification;

VOL. XXXIX. No. 78.

Cc

and to avoid, as much as possible, the necessity of particular criticism and long quotations. Spanish literature is, of all others, that which can be least appreciated by extracts and translations. Its excellence consists, not in insulated beauties, but in that noble national spirit, which, like a great connecting principle, pervades and harmonizes the whole.

There is something, at first sight, extremely melancholy in the decline of a great literature. The mind clings instinctively to what it has, and refuses to be comforted for its loss even in the prospect of a brighter futurity. But the history of literature tends at last to soften this feeling of regret. It teaches us to consider these national catastrophes only as the development of a great principle of succession, by which the treasures of mind are circulated and equalized-as shocks by which the stream of improvement is forcibly directed into new channels, to fertilize new soils, and awaken new capabilities. Zoroaster dies, but the lore of the Magi and the Chaldees is preserved by the Egyptians. Egypt sinks into decay, but the mantle of Hermes is bequeathed to Plato; and Rome rises into literary greatness when the world is beginning to retort, upon the fallen Greeks, the epithet of Barbarians. Even the darkness which succeeded the dissolution of the Roman empire was but temporary. The sun only set in Europe to rise in Asiapale, indeed, and obscured for a time, under the tempestuous reigns of the immediate successors of Mahomet, but regaining its brightness under Al Raschid and Al Maimoun. Knowledge had only completed its circle; and the Western world was a second time to receive from the East the seeds of improvement and the elements of greatness.

The rapid growth of Arabian literature is one of the most striking phenomena of history. Arabia seemed rather to recollect than to acquire-rather to revive a deceased literature, than to create a new. She entered on the vast field of knowledge as on a paternal inheritance, not with the hesitation of a discoverer, but with the confidence of one to whom every 'dingle and alley green of that wild wood' had been once familiar, and whose recollections were revived by the sight of her accustomed walks and familiar trees. A century had hardly elapsed from the barbarous era of the Hegira, when the court of Haroun Al Raschid was the centre of science and arts. A hundred and twenty years after the pretended burning of the Alexandrian library, public libraries were opened even in the obscurest cities of the Arabian empire. Bagdad, Balsora, Balkh, Cufa, Ispahan and Samarcand, vied with each other in the number of their colleges and learned men. Kings sat at the feet of sages to learn wisdom; and the whole empire seem