CHAPTER THE TWENTY-SECOND. SPECIES OF OF THE SEVERAL TRIAL. THE HE uncertainty of legal proceedings is a notion fo generally adopted, and has fo long been the ftanding theme of wit and good humour, that he who fhould attempt to refute it would be looked upon as a man, who was either incapable of difcernment himself, or elfe meant to impofe upon others. Yet it may not be amifs, before we enter upon the feveral modes whereby certainty is meant to be obtained in our courts of justice, to inquire a little wherein this uncertainty, fo frequently complained of, confists; and to what causes it owes it's original. IT hath fometimes been faid to owe it's original to the number of our municipal conftitutions, and the multitude of our judicial decifions; which occafion, it is alleged, abundance of rules that militate and thwart with each other, as the fentiments or caprice of fucceffive legiflatures and judges have happened to vary. The fact, of multiplicity, is allowed; and that thereby the researches of the ftudent are rendered more difficult and laborious: but that, with proper industry, the refult of thofe inquiries will be doubt and indecision, is a confequence that cannot be admitted. People are apt to be angry at the want of fimplicity in our laws: they mistake variety for confufion, and complicated cafes for contradictory. a See the preface to fir John Davies's reports: wherein many of the following topics are difcuffed more at large. They bring us the examples of arbitrary governments, of Denmark, Mufcovy, and Pruffia; of wild and uncultivated nations, the favages of Africa and America; or of narrow domeftic republics, in antient Greece and modern Switzerland; and unreasonably require the fame paucity of laws, the fame conciseness of practice, in a nation of freemen, a polite and commercial people, and a populous extent of territory. In an arbitrary, defpotic government, where the lands are at the disposal of the prince, the rules of fucceffion, or the mode of enjoyment, muft depend upon his will and pleasure. Hence there can be but few legal determinations relating to the property, the descent, or the conveyance of real estates; and the fame holds in a stronger degree with regard to goods and chattels, and the contracts relating thereto. Under a tyrannical sway trade must be continually in jeopardy, and of confequence can never be extensive: this therefore puts an end to the neceffity of an infinite number of rules, which the English merchant daily recurs to for adjusting commercial differences. Marriages are there ufually contracted with slaves; or at least women are treated as fuch: no laws can be therefore expected to regulate the rights of dower, jointures, and marriage fettlements. Few alfo are the perfons who can claim the privileges of any laws; the bulk of those nations, viz. the commonalty, boors, or peasants, being merely villeins and bondmen. Those are therefore left to the private coercion of their lords, are esteemed (in the contemplation of thefe boafted legiflators) incapable of either right or injury, and of confequence are entitled to no redress. We may fee, in these arbitrary ftates, how large a field of legal contests is already rooted up and destroyed. AGAIN; were we a poor and naked people, as the favages of America are, ftrangers to science, to commerce, and the arts as well of convenience as of luxury, we might perhaps be content, as fome of them are faid to be, to refer all difputes to the next man we meet upon the road, and fo put a short end to to every controversy. For in a state of nature there is no room for municipal laws; and the nearer any nation approaches to that ftate, the fewer they will have occafion for. When the people of Rome were little better than sturdy fhepherds or herdsmen, all their laws were contained in ten or twelve tables: but as luxury, politeness, and dominion increased, the civil law increased in the fame proportion; and fwelled to that amazing bulk which it now occupies, though successively pruned and retrenched by the emperors Theodofius and Juftinian. In like manner we may laftly obferve, that, in petty states and narrow territories, much fewer laws will fuffice than in large ones, because there are fewer objects upon which the laws can operate. The regulations of a private family are. short and well-known; those of a prince's houshold are neceffarily more various and diffuse. THE caufes therefore of the multiplicity of the English laws are, the extent of the country which they govern; the commerce and refinement of it's inhabitants; but, above all, the liberty and property of the subject. These will naturally produce an infinite fund of disputes, which must be terminated in a judicial way: and it is effential to a free people, that these determinations be published and adhered to; that their property may be as certain and fixed as the very conftitution of their ftate. For though in many other countries every thing is left in the breast of the judge to determine, yet with us he is only to declare and pronounce, not to make or new-model, the law. Hence a multitude of decifions, or cafes adjudged, will arife: for seldom will it happen that any one rule will exactly fuit with many cafes. And in proportion as the decifions of courts of judicature are multiplied, the law will be loaded with decrees, that may fometimes (though Tarely) interfere with each other: either because fucceeding judges may not be apprized of the prior adjudication; or because they may think differently from their predeceffors; of because the fame arguments did not occur formerly as at pre A a 4 sent fent; or, in fine, because of the natural imbecility and imperfection that attends all human proceedings. But whereever this happens to be the cafe in any material point, the legislature is ready, and from time to time both may, and frequently does, intervene to remove the doubt; and, upon due deliberation had, determines by a declaratory ftatute how the law fhall be held for the future. WHATEVER inftances, therefore of contradiction or uncertainty may have been gleaned from our records, or reports, must be imputed to the defects of human laws in general, and are not owing to any particular ill conftruction of the English fyftem. Indeed the reverfe is moft ftrictly true. The English law is lefs embarraffed with inconfiftent refolutions and doubtful questions, than any other known fyftem of the fame extent and the fame duration. I may inftance in the civil law: the text whereof, as collected by Juftinian and his agents, is extremely voluminous and diffufe; but the idle comments, obfcure gloffes, and jarring interpretations grafted thereupon by the learned jurifts, are literally without number. And these gloffes, which are mere private opinions of fcholaftic doctors (and not like our books of reports, judicial determinations of the court) are all of authority fufficient to he vouched and relied on: which muft needs breed great diftraction and confufion in their tribunals. The fame may faid of the canon law; though the text thereof is not of half the antiquity with the common law of England; and though the more antient any fyftem of laws is, the more it is liable to be perplexed with the multitude of judicial decrees. When therefore a body of laws of fo high antiquity as the English, is in general fo clear and perfpicuous, it argues deep wifdom and forefight in fuch as laid the foundations, and great care and circumfpection in fuch as have built the fuperftructure. be BUT is not (it will be afked) the multitude of law-fuits, which we daily fee and experience, an argument against the clearness and certainty of the law itfelf? By no means: for |