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Νέος, παιδίσκας, σὺν αὐτοῖς μετέρες εκτεινοῦσαι,
Καὶ ῥήγες ὑποκείμενοι, ῥήγι τῷ Βρητανίας,
Εώρων εκπληττόμενοι τὸ θάρσος τοῦ πρεσβύτου,
Τὸ κάλλος δ ̓ ἐπεθαύμαζον, τῆς ἐπελθούσης κόρης της
Ο Παλαμήδης συν βοή, βαρβαρική και σθένει
Ωθεῖ τὸν ἵππον κατ' αὐτον βάλλει τῷ δορατίῳ.
Ατρέμας δ' ὁ πρεσβύτατος, ἵστατο ρωμαλέος,
Ὥσπερ τις λίθος ἀκλινής, σκοπὸς τοῖς βαλλομένοις.
Ἐν τῇ χειρὶ συνέτριψε, τὸ δόρυ Παλαμήδης,
Καξ ἐφεστρίδος κατὰ γῆς, ἐκπετασθεὶς ἐῤῥίφθη,
"Ωσπερ τις λίθος αφεθείς, ἐκ πετροβόλου σκίνους,
Πρὸς πέτραν δὲ παραβαλών, αὖθις παλινδρομεῖται,
Τὸ πλῆττον ἀσθενεστερον, φαγὲν τοῦ πληττομένου.

After this ignominious defeat, Pala medes is going shameful to his lodgings, putting himself on his bed. After him Gaoulbanus (Gawyn,) nephew of King Arthur, is asking his permis

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with the old man, who is putting them down one after the other, still refusing to declare his name. Lanselot of the Lake (Δαντελῶτος ἐκ Λιμενης,) asks Tristan to let himself fight

sion to fight with the old man, which Tristan gives him with the old man.

is granted to him. The old man tries to dissuade the knight, alleging the gratitude he is bearing for the mother of the knight, Morgaine, and for his ancestor, Uterpendragon, foretelling him that he will be put down like his friend Palamedes. But Galwyn, anxious to fight, begins the trial, and is vanquished as it was predicted to him. On the same manner, Galawtos, and many knights of the table, (οἱ δαιτυμόνες,) excepting only Tristenos and Lanselotos, are fighting

to fight; but Lanselot, though highly prized by the old man splittering his lance on Lanselot's breast, is put down like the other knights. After him comes Tristan, but he shares the lot of the other champions. Now Arthur becomes angry, and though Tzenebra (Genièvre) prays him on her knees not to fight, puts on his armour, and runs down to the field of battle, whereof the poet makes this beautiful description, . 149, 150.

Αλλ ̓ ἦν ῥηγὶ προς παίγνοιν, τῶν θεραπόντων θρῆνος,
Καὶ κατελθὼν τοῦ δώματος, παρίσταται σταδίῳ,
Οὐκ αὐτῷ χαῖρε προσειπών, οὐ δεξιὰν ἐκτείνας,
̓Αλλ' ἔστη βλοσυρόμματος, ὥσπερ σκύμνος,
Τοῦτον δὲ ἰδὼν ἱστάμενον, ἱππότης ὁ πρεσβύτης
Εγνω τὸν ῥῆγα ἀλεθῶς, συγκάνειν τὸν ἐλθόντα

The old man now begs him not to
fight, acknowledging to be ready to
become likewise knight of the table,
whereupon the king embraces him,
and asks that he may go with him to
dine at the hall. But the old man re-
fuses to follow his invitation, and to
disclose his name...

In this moment, a damsel, unjustly spoiled of her castles and lands, arrives to implore the aid of King Arthur, or one of his knights of the table-round. The king relates to her how all the knights have been vanquished by the old man, and that she may solicit his help, who, though he refuses in the beginning to lend her his arm, already weakened by the many duels fought with the knights, at last cedes to her solicitations, and goes with the virgin to her castle, where they arrive

the same evening. But deposing there his armour, the ladies of the castle see how old and grey-headed he is, and are blaming the virgin on the choice she has made of so weak a defender, having wanted a young and valiant knight of the table-round. They go to rest, and the next morning, when they are apprised that the enemy is approaching, the old man asks to eat and to drink. Having finished his breakfast, he puts on his armour, and looks quietly on the issue of the battle between the people of the castle and the enemy. Then, after the first are put to flight, he inquires about the cause of the war, and being informed of it, he asks, that the enemies may restore the flocks they have driven away, and the prisoners they have made. But these scorning his propo

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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

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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,
Γέρας τ' αἰτεῖται παρασκεῖν, αὐτῶ τῶν πονημάτων,
Ὅτι την κόρην ἀπελθεῖν, πρὸς ῥηγικοὺς τοὺς δόμους
Καὶ δοῦναι τὸ γραμμάτιον, ῥηγὶ τῷ βρετανίας.
Καὶ ταῦτ ̓ εἰπὼν ἀπηλλάγη, ἔκων γέρας ἄξιον.

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.

EREMITA HAMBURGENSIS.

MR T. F. KENNEDY AND THE EDINBURGH REVIEW.

To the Editor of Blackwood's Magazine.

SIR,

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, Remember thou art not Romilly!"

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 sertion, 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.

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

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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

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* 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 juryinan, quently 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 cir cuits, 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.

taining the names and designations,
and places of abode, of all the wit
nesses to be examined against the ac-
eused, and of the 45 jurymen, from
among whom 15 are to be selected
to try his case. He has thus an op-
portunity of knowing precisely what
is to be proved against him-of learn-
ing 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 witness
es he may wish to examine. But
further, he is allowed the aid of coun-
sel, and if he is poor, counsel are as-
signed 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 indict
ment 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 pro-
ceedings he has the last word. Fi-
nally, 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 li-
berty 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.

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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.

VOL. XI.

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