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68 sumed it to be possessed of perfectly arbitrary powers, (something resembling those at one time enjoyed by the court of session,) enabling it to do justice according to the merits, in every case which the common law courts did not reach; and with great consideration laid down rules for the regulation of its decisions, forgetting that, if such rules could be applied to any court so purely arguing from circumstances and conscience, the rules of an act of parliament might have been as well chosen, and rather more strictly followed, than those of the Scottish judge. But it appears that lord Kames had formed erroneous ideas of the powers of the English equity courts; and in a portion of Sir William Blackstone's Commentary, attributed to the pen of lord Mansfield, he is thus corrected: "on the contrary, the system of our courts of equity is a laboured, connected system, governed by established rules, and bound down by precedents, from which they do not depart, although the reason of some of them may perhaps be liable to objection." Tytler, on all occasions the vindicator of his friend, has attempted to support the theory of lord Kames, by making Blackstone contradict himself: he has discovered the following passage in the Introduction to that author's works,—"Equity depending essentially upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equityjaid down, without destroying its very essence, and reducing it to a positive law." But in this passage, be it recollected, the author speaks of courts of pure equity like the Praetorian tribunals of the Romans, untrammelled by act or precedent, and left entirely to judicial discretion, a species of institution of which he does not admit the existence in England. But let us not relinquish this subject, without bestowing our meed of approbation on the noble efforts which the learned author has made in this, and more effectually in others of his works, to reconcile the two countries to an assimilation in laws. There is no more common prejudice, than the feeling, that the approach of one country to the laws and customs of another, is not an act of expediency, but an acknowledgment of inferiority, and it generally requires a harsher struggle on the part of the weaker, than on that of the stronger people. It is frequently maintained that a love for ancient institutions, and a wish to continue them, however cumbersome, is the characteristic safeguard of freedom; but might it not be said, that the firmness of a nation consists in the obedience it pays to the laws while they exist, paying them not the less respect in their execution, that they look upon them as systems which should be altered by the legislative authority. "Our law," says lord Kames, "will admit of many improvements from that of England; and if the author be not in a mistake, through partiality to his native country, we are rich enough to repay with interest all we have occasion to borrow;" a reflection which might produce good seed, if it would teach some narrow intellects to examine the merits of some petty deformities of Scottish law, for which antiquity has given them an affection. And if the proud legislators of a neighbouring country would desert for a moment the stale jest which forced itself into the words "nolumus leges Angliae mutari," and admit the possibility that the mighty engine of English jurisprudence might admit some improvement from the working of a more simple and in many things very efficacious machine, the high benefits of a participation in the excellencies of their own system, which they show so much anxiety to extend across the border, would be received with less jealousy and suspicion.

Passing over the introduction to the Art of Thinking, published in 1761, we turn with much pleasure to the contemplation of another of the philosophical productions of this eminent writer, the work on which his reputation chiefly depends. In 1762 was published, in three octavo volumes, "The Elements of Criticism." The correspondence and previous