which both acknowledge can alone adjust the controversy. Such a power, therefore, must reside somewhere, lest the rights and repose of the country be distracted by the endless opposition and mutual encroachments of its courts of justice.

There are two kinds of judicature; the one where the office of the judge is permanent in the same person, and consequently where the judge is appointed and known long before the trial; the other, where the judge is determined by lot at the time of the trial, and for that turn only. The one may be called a fixed, the other a casual judicature. From the former may be expected those qualifications which are preferred and sought for in the choice of judges, and that knowledge and readiness which result from experience in the office. But then, as the judge is known beforehand, he is accessible to the parties; there exists a possibility of secret management and undue practices: or, in contests between the crown and the subject, the judge appointed by the crown may be suspected of partiality to his patron, or of entertaining inclinations favourable to the authority from which he derives his own. The advantage attending the second kind of judicature, is indifferency; the defect, the want of that legal science which produces uniformity and justice in legal decisions. The construction of English courts of law, in which causes are tried by a jury, with the assistance of a judge, combines the two species with peculiar success. This admirable contrivance unites the wisdom of a fixed with the integrity of a casual judicature; and avoids, in a great measure, the inconveniences of both. The judge imparts to the jury the benefit of his erudition and experience; the jury, by their disinterestedness, check any corrupt partialities which previous application may have produced in the judge. If the determination were left to the judge, the party might suffer under the superior interest of his adversary: if it were left to an uninstructed jury, his rights would be in still greater danger, from the ignorance of those who were to decide upon them. The present wise admixture of chance and choice in the constitution of the court in which his cause is tried, guards him equally against the fear of injury from either of these

causes.

In proportion to the acknowledged excellency of this mode of trial, every deviation from it ought to be watched with vigilance, and admitted by the legislature with caution and reluctance. Summary convictions be

fore justices of the peace, especially for offences against the game-laws; courts of conscience; extending the jurisdiction of courts of equity; urging too far the distinction between questions of law and matters of fact;-are all so many infringements upon this great charter of public safety.

Nevertheless, the trial by jury is sometimes found inadequate to the administration of equal justice. This imperfection takes place chiefly in disputes in which some popular passion or prejudice intervenes; as where a particular order of men advance claims upon the rest of the community, which is the case of the clergy contending for tithes; or where an order of men are obnoxious by their profession, as are officers of the revenue, bailiffs, bailiffs' followers, and other low ministers of the law; or where one of the parties has an interest in common with the general interest of the jurors, and that of the other is opposed to it, as in contests between landlords and tenants, between lords of manors and the holders of estates under them; or, lastly, where the minds of men are inflamed by political dissensions or religious hatred. These prejudices act most powerfully upon the common people; of which order, juries are made up. The force and danger of them are also increased by the very circumstance of taking juries out of the county in which the subject of dispute arises. In the neighbourhood of the parties, the cause is often prejudged: and these secret decisions of the mind proceed commonly more upon sentiments of favour or hatred,-upon some opinion concerning the sects, family, profession, character, connections, or circumstances, of the parties,— than upon any knowledge or discussion of the proper merits of the question. More exact justice would, in many instances, be rendered to the suitors, if the determination were left entirely to the judges; provided we could depend upon the same purity of conduct, when the power of these magistrates was enlarged, which they have long manifested in the exercise of a mixed and restrained authority. But this is an experiment too big with public danger to be hazarded. The effects, however, of some local prejudices, might be safely obviated by a law empowering the court in which the action is brought, to send the cause to trial in a distant county; the expenses attending the change of place always falling upon the party who applied for it.

There is a second division of courts of justice, which presents a new alternative of

difficulties. Either one, two, or a few, sovereign courts may be erected in the metropolis, for the whole kingdom to resort to; or courts of local jurisdiction may be fixed in various provinces and districts of the empire. Great, though opposite, inconveniences attend each arrangement. If the court be remote and solemn, it becomes, by these very qualities, expensive and dilatory: the expense is unavoidably increased when witnesses, parties, and agents, must be brought to attend from distant parts of the country: and, where the whole judicial business of a large nation is collected into a few superior tribunals, it will be found impossible, even if the prolixity of forms which retards the progress of causes were removed, to give a prompt hearing to every complaint, or an immediate answer to any. On the other hand, if, to remedy these evils, and to render the administration of justice cheap and speedy, domestic and summary tribunals be erected in each neighbourhood, the advantage of such courts will be accompanied with all the dangers of ignorance and partiality, and with the certain mischief of confusion and contrariety in their decisions. The law of England, by its circuit, or itinerary courts, contains a provision for the distribution of private justice in a great measure relieved from both these objections. As the presiding magistrate comes into the county a stranger to its prejudices, rivalships, and connections, he brings with him none of those attachments and regards which are so apt to pervert the course of justice when the parties and the judges inhabit the same neighbourhood. Again; as this magistrate is usually one of the judges of the supreme tribunals of the kingdom, and has passed his life in the study and administration of the laws, he possesses, it may be presumed, those professional qualifications which befit the dignity and importance of his station. Lastly, as both he, and the advocates who accompany him in his circuit, are employed in the business of those superior courts (to which also their proceedings are amenable), they will naturally conduct themselves by the rules of adjudication which they have applied or learned there; and by this means maintain, what constitutes a principal perfection of civil government, one law of the land in every part and district of the empire.

Next to the constitution of courts of justice, we are naturally led to consider the maxims which ought to guide their proceedings; and, upon this subject, the chief inquiry will be, how far, and for what reasons, it is expedi

ent to adhere to former determinations; of whether it be necessary for judges to attend to any other consideration than the apparent and particular equity of the case before them. Now, although to assert that precedents established by one set of judges ought to be incontrovertible by their successors in the same jurisdiction, or by those who exercise a higher, would be to attribute to the sentence of those judges all the authority we ascribe to the most solemn acts of the legislature; yet the general security of private rights, and of civil life, requires that such precedents, especially if they have been confirmed by repeated adjudications, should not be overthrown, without a detection of manifest error, or without some imputation of dishonesty upon the court by whose judgment the question was first decided. And this deference to prior decisions is founded upon two reasons; first, that the discretion of judges may be bound down by positive rules; and secondly, that the subject, upon every occasion in which his legal interest is concerned, may know beforehand how to act, and what to expect. To set judges free from any obligation to conform themselves to the decisions of their predecessors, would be to lay open a latitude of judging with which no description of men can safely be intrusted; it would be to allow space for the exercise of those concealed partialities, which, since they cannot by any human policy be excluded, ought to be confined by boundaries and landmarks. It is in vain to allege, that the superintendency of parliament is always at hand to control and punish abuses of judicial discretion. By what rules can parliament proceed? How shall they pronounce a decision to be wrong, where there exists no acknowledged measure or standard of what is right; which, in a multitude of instances, would be the case, if prior determinations were no longer to be appealed to?

Diminishing the danger of partiality, is one thing gained by adhering to precedents; but not the principal thing. The subject of every system of laws must expect that decision in his own case, which he knows that others have received in cases similar to his. If he expect not this, he can expect nothing. There exists no other rule or principle of reasoning, by which he can foretell, or even conjecture, the event of a judicial contest. To remove therefore the grounds of this expectation, by rejecting the force and authority of precedents, is to entail upon the subject the worst property of slavery, to have no assurance of his rights, or knowledge of his

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duty. The quiet also of the country, as well as the confidence and satisfaction of each man's mind, requires uniformity in judicial proceedings. Nothing quells a spirit of litigation, like despair of success: therefore nothing so completely puts an end to law suits, as a rigid adherence to known rules of adjudication. Whilst the event is uncertain, which it ever must be whilst it is uncertain whether former determinations upon the same subject will be followed or not, lawsuits will be endless and innumerable: men will commonly engage in them, either from the hope of prevailing in their claims, which the smallest chance is sufficient to encourage; or with the design of intimidating their adversary by the terrors of a dubious litigation. When justice is rendered to the parties, only half the business of a court of justice is done the more important part of its office remains ;—to put an end, for the future, to every fear, and quarrel, and expense, upon the same point; and so to regulate its proceedings, that not only a doubt once decided may be stirred no more, but that the whole train of law-suits, which issue from one uncertainty, may die with the parent-question. Now, this advantage can be attained only by considering each decision as a direction to succeeding judges. And it should be observed, that every departure from former determinations, especially if they have been often repeated or long submitted to, shakes the stability of all legal title. It is not fixing a point anew; it is leaving every thing unfixed. For by the same stretch of power by which the present race of judges take upon them to contradict the judgment of their predecessors, those who try the question next may set aside theirs.

From an adherence however to precedents, by which so much is gained to the public, two consequences arise which are often lamented; the hardship of particular determinations, and the intricacy of the law as a science. To the first of these complaints, we must apply this reflection:-" That uniformity is of more importance than equity, in proportion as a general uncertainty would be a greater evil than particular injustice." The second is attended with no greater inconveniency than that of erecting the practice of the law into a separate profession which this reason, we allow, makes necessary; for if we attribute so much authority to precedents, it is expedient that they be known, in every cause, both to the advocates and to the judge: this knowledge cannot be general, since it is the fruit often

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times of laborious research, or demands a memory stored with long-collected erudition.

To a mind revolving upon the subject of human jurisprudence, there frequently occurs this question:-Why, since the maxims of natural justice are few and evident, do there arise so many doubts and controversies in their application? Or, in other words, how comes it to pass, that although the principles of the law of nature be simple, and for the most part sufficiently obvious, there should exist nevertheless, in every system of municipal laws, and in the actual administration of relative justice, numerous uncertainties and acknowledged difficulty? Whence, it may be asked, so much room for litigation, and so many subsisting disputes, if the rules of human duty be neither obscure nor dubious? Ifa system of morality, containing both the precepts of revelation and the deductions of reason, may be comprised within the compass of one moderate volume; and the moralist be able, as he pretends, to describe the rights and obligations of mankind, in all the different relations they may hold to one another; what need of those codes of positive and particular institutions, of those tomes of statutes and reports, which require the employment of a long life even to peruse? And this question is immediately connected with the argument which has been discussed in the preceding paragraph: for, unless there be found some greater uncertainty in the law of nature, or what may be called natural equity, when it comes to be applied to real cases and to actual adjudication, than what appears in the rules and principles of the science, as delivered in the writings of those who treat of the subject, it were better that the determination of every cause should be left to the conscience of the judge, unfettered by precedents and authorities; since the very purpose for which these are introduced, is to give a certainty to judicial proceedings, which such proceedings would want without them.

Now, to account for the existence of so many sources of litigation, notwithstanding the clearness and perfection of natural justice, it should be observed, in the first place, that treatises of morality always suppose facts to be ascertained; and not only so, but the intention likewise of the parties to be known and laid bare. For example: when we pronounce that promises ought to be fulfilled in that sense in which the promiser apprehended, at the time of making the promise,

the other party received and understood it; the apprehension of one side, and the expect ation of the other, must be discovered, before this rule can be reduced to practice, or applied to the determination of any actual dispute. Wherefore the discussion of facts which the moralist supposes to be settled, the discovery of intentions which he presumes to be known, still remain to exercise the inquiry of courts of justice. And as these facts and intentions are often to be inferred, or rather conjectured, from obscure indications, from suspicious testimony, or from a comparison of opposite and contending probabilities, they afford a never-failing supply of doubt and litigation. For which reason, as hath been observed in a former part of this work, the science of morality is to be considered rather as a direction to the parties, who are conscious of their own thoughts, and motives, and designs, to which consciousness the teacher of morality constantly appeals; than as a guide to the judge, or to any third person, whose arbitration must proceed upon rules of evidence, and maxims of credibility, with which the moralist has no concern.

Secondly; there exist a multitude of cases, in which the law of nature, that is, the law of public expediency, prescribes nothing, except that some certain rule be adhered to, and that the rule actually established, be preserved; it either being indifferent what rule obtains, or, out of many rules, no one being so much more advantageous than the rest, as to recompense the inconveniency of an alteration. In all such cases, the law of nature sends us to the law of the land. She directs that either some fixed rule be introduced by an act of the legislature, or that the rule which accident, or custom, or common consent, hath already established, be steadily maintained. Thus, in the descent of lands, or the inheritance of personals from intestate proprietors, whether the kindred of the grandmother, or of the great-grandmother, shall be preferred in the succession; whether the degrees of consanguinity shall be computed through the common ancestor, or from him; whether the widow shall take a third or a moiety of her husband's fortune; whether sons shall be preferred to daughters, or the elder to the younger; whether the distinction of age shall be regarded amongst sisters, as well as between brothers; in these, and in a great variety of questions which the same subject supplies, the law of nature determines nothing. The only answer sne returns to our inquiries is, that some certain and general rule be laid down by

public authority; be obeyed when laid down; and that the quiet of the country be not disturbed, nor the expectation of heirs frustrated, by capricious innovations. This silence or neutrality of the law of nature, which we have exemplified in the case of intestacy, holds concerning a great part of the questions that relate to the right or acquisition of property. Recourse then must necessarily be had to statutes, or precedents, or usage, to fix what the law of nature has left loose. The interpretation of these statutes, the search after precedents, the investigation of customs, compose therefore an unavoidable, and at the same time a large and intricate, portion of forensic business. Positive constitutions or judicial authorities are, in like manner, wanted to give precision to many things which are in their nature indeterminate. The age of legal discretion; at what time of life a person shall be deemed competent to the performance of any act which may bind his property; whether at twenty, or twenty-one, or earlier or later, or at some point of time between these years; can only be ascertained by a positive rule of the society to which the party belongs. The line has not been drawn by nature, the human understanding advancing to maturity by insensible degrees, and its progress vary. ing in different individuals. Yet it is necessary, for the sake of mutual security, that a precise age be fixed, and that what is fixed be known to all. It is on these occasions that the intervention of law supplies the inconstancy of nature. Again, there are other things which are perfectly arbitrary, and capable of no certainty but what is given to them by positive regulation. It is fit that a limited time should be assigned to defendants, to plead to the complaints alleged against them; and also that the default of pleading within a certain time should be taken for a confession of the charge: but to how many days or months that term should be extended, though necessary to be known with certainty, cannot be known at all by any information which the law of nature affords. And the same remark seems applicable to almost all those rules of proceeding, which constitute what is called the practice of the court: as they cannot be traced out by reasoning, they must be settled by authority.

Thirdly; in contracts, whether express or implied, which involve a great number of conditions; as in those which are entered into between masters and servants, principals and agents; many also of merchandise.

or for works of art; in some likewise which relate to the negotiation of money or bills, or to the acceptance of credit or security; the original design and expectation of the parties was, that both sides should be guided by the course and custom of the country in transactions of the same sort. Consequently, when these contracts come to be disputed, natural justice can only refer to that custom. But as such customs are not always sufficiently uniform or notorious, but often to be collected from the production and comparison of instances and accounts repugnant to one another; and each custom being only that, after all, which amongst a variety of usages seems to predominate; we have here also ample room for doubt and

contest.

Fourthly; as the law of nature, founded in the very construction of human society, which is formed to endure through a series of perishing generations, requires that the just engagements a man enters into should continue in force beyond his own life; it follows, that the private rights of persons frequently depend upon what has been transacted, in times remote from the present, by their ancestors or predecessors, by those under whom they claim, or to whose obligations they have succeeded. Thus the questions which usually arise between lords of manors and their tenants, between the king and those who claim royal franchises, or between them and the persons affected by these franchises, depend upon the terms of the original grant. În like manner, every dispute concerning tithes, in which an exemption or composition is pleaded, depends upon the agreement which took place between the predecessor of the claimant and the ancient owner of the land. The appeal to these grants and agreements is dictated by natural equity, as well as by the municipal law but concerning the existence, or the conditions, of such old covenants, doubts will perpetually occur, to which the law of nature affords no solution. The loss or decay of records, the perishableness of living memory, the corruption and carelessness of tradition, all conspire to multiply uncertainties upon this head; what cannot be produced or proved, must be left to loose and fallible presumption. Under the same head may be included another topic of altercation;-the tracing out of boundaries, which time, or neglect, or unity of possession, or mixture of occupation, has confounded or obliterated. To which should be added, a difficulty which often presents itself in dis

putes concerning rights of way, both public and private, and of those easements which one man claims in another man's property; namely, that of distinguishing, after a lapse of years, the use of an indulgence from the exercise of a right.

Fifthly; the quantity or extent of an injury, even when the cause and author of it are known, is often dubious and undefined. If the injury consist in the loss of some specific right, the value of the right measures the amount of the injury: but what a man may have suffered in his person, from an assault; in his reputation, by slander; or in the comfort of his life, by the seduction of a wife or daughter; or what sum of money shall be deemed a reparation for damages such as these; cannot be ascertained by any rules which the law of nature supplies. The law of nature commands that reparation be made; and adds to her command, that, when the aggressor and the sufferer disagree, the damage be assessed by authorized and indifferent arbitrators. Here then recourse must be had to courts of law, not only with the permission, but in some measure by the direction, of natural justice.

Sixthly; when controversies arise in the interpretation of written laws, they for the most part arise upon some contingency which the composer of the law did not foresee or think of. In the adjudication of such cases, this dilemma presents itself: if the laws be permitted to operate only upon the cases which were actually contemplated by the law-makers, they will always be found defective; if they be extended to every case to which the reasoning, and spirit, and expediency, of the provision seem to belong, without any further evidence of the intention of the legislature, we shall allow to the judges a liberty of applying the law, which will fall very little short of the power of making it. If a literal construction be adhered to, the law will often fail of its end: if a loose and vague exposition be admitted, the law might as well have never been enacted; for this license will bring back into the subject all the discretion and uncertainty which it was the design of the legislature to take away. Courts of justice are, and always must be, embarrassed by these opposite difficulties; and as it never can be known beforehand, in what degree either consideration may prevail in the mind of the judge, there remains an unavoidable cause of doubt, and a place for contention.

Seventhly; the deliberations of courts of