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THE uncertainty of legal proceedings is a notion so generally adopted, and has so long been the standing theme of wit and good humour, that he who mould attempt to refute it would be looked upon as a man, who was either incapable of discernment himself, or else meant to impose upon others. Yet it may not be amiss, before we enter upon the several modes whereby certainty is meant to be obtained in our courts of justice, to inquire a little wherein this uncertainty, so frequently complained of, consists; and to what causes it owes it's original.
It hath sometimes been said to owe it's original to the number of our municipal constitutions, and the multitude of our judicial decisions1} which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. The fact, of multiplicity, is allowed; and that thereby the researches of the student are rendered more, difficult and laborious: but that, with proper industry, the Tcsult of those inquiries will be doubt and indecision, is a consequence that cannot be admitted. People are apt to be angry at the want os simplicity in our laws: they mistake variety for confusion, and complicated cafes for contradictory.
• See tin preface to fir John Davies's reports: wherein many of the following topics are discussed more at large.
A a 3 - They They bring us the examples of arbitrary governments, of Denmark, Muscovy, and Prussia; of wild and uncultivated nations, the savages of Africa and America; op-os narrow .domestic republics, in antient Greece and modern Switzerland ; and unreasonably require the same 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, despotic government, where the lands are at the disposal of the prince, the rules of succession, or the mode of enjoyment, must depend upon his will and pleasure. Hence there can be butfewlegal determinations relating to the property, the descent, or the conveyance of real estates; and the fame holds in a stronger degree with regard tp goods and chattels, and the contracts relating thereto- Under a tyrannical sway trade must be continually in jeopardy, and of cpnsequence can never be extensive: this therefore puts an end to the necessity of an infinite number of rules, which the English merchant daily recurs to for adjusting commercial difr ferences. Marriages are there usually contracted with slaves j .or at least women are treated as such : no Jaws can be there? fore expected to regulate the rights of dower, jointures, and marriage settlements. Few also are the persons who can claim the privileges of any laws; the bulk of those nations, yiz. the commonalty, boors, or peasants, being merely vilT leins and bpndmen. Those are therefore left so the private coercion of their lords, are esteemed.(in the contemplation of these boasted legislators) incapable of either right or injury, and of consequence are entitled to no redress. We may fee, in these arbitrary states, how large a field of legal contests is already ropted up and destroyed.
Ac.w.i; were we a poor and naked people, as the savages of America are, strangers to science, tp commerce, and the arts as well of convenience 3s of luxury, we might perhaps be Content, as some of them are said to be, to refer all dispute* jo the next "man we meet upon the road, and so put a sliort end to every controversy. For in a state of nature there is no room for municipal laws; and the nearer any nation approaches to that state, the fewer they will have occasion for. When the people of Rome were little better than sturdy shepherds 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 same proportion; and swelled to that amazing bulk which it now occupies, though successively pruned and retrenched by the emperors Theodosius and Justinian.
In like manner we may lastly observe, that, in petty states and narrow territories, much fewer laws will suffice than in lar^e ones, because there are fewer objects upon which the laws can operate. The regulations of a private family are short and well-known •, those os a prince's houlhold are necessarily more various and diffuse.
The causes therefore of the multiplicity of the Englisli 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 essential to a free people, that these determinations be published and adhered to; that their property may be as certain and fixed as the very constitution of their state. For though in many other countries every thing is left in the breast of the judge to determine, yit with us he is only to declare and pronounce, not to make or nciv-model, the law. Hence a multitude of decisions, or cafes adjudged, will arise: for seldom will it happen that any one rule will exactly suit with many cases. And in proportion as the decisions of courts of judicature arc multiplied, the law will be loaded with decrees,-that may sometimes (though rarely) interfere with each other: either because succeeding judges may not be apprized of the prior adjudication; or because they may think differently from their predecessors; or because the same arguments did not occur formerly as at pr*
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