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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 should 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 ob tained in our courts of juftice, to inquire a little wherein this uncertainty, fo frequently complained of, confifts; 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 legislatures and judges have happened to vary. The fact, of multiplicity, is allowed; and that thereby the refearches of the ftudent are rendered more. difficult and laborious: but that, with proper induftry, the refult of those inquiries will be doubt and indecifion, 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.

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They bring us the examples of arbitrary governments, of Denmark, Mufcovy, and Prufia; of wild and uncultivated nations, the favages of Africa and America; or of narrow domeftic republics, in antient Greece and modern Switzer. land; and unreasonably require the fame paucity of laws, the fame concifenefs 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 difpofal of the prince, the rules of fucceffion, or the mode of enjoyment, must depend upon his will and pleasure. Hence there can be but few legal determinations relating to the property, the defcent, or the conveyance of real estates; and the fame holds in a ftronger degree with regard to goods and chattels, and the contracts relating thereto. Under a tyran nical 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 flaves; or at least women are treated as fuch: no laws can be there fore 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 vil leins and bondmen. Those are therefore left to the private coercion of their lords, are esteemed,(in the contemplation of thefe boafted legislators) incapable of either right or injury, and of confequence are entitled to no redrefs. We may fee, in these arbitrary ftates, how large a field of legal contefts is already rooted up and destroyed.

AGAIN; were we a poor and naked people, as the favages of America are, strangers 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 fhort end

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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 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, politenefs, and dominion increased, the civil law increafed in the fame proportion; and fwelled to that amazing bulk which it now occupies, though fucceffively pruned and retrenched by the emperors Theodofius and Juftinian.

In like manner we may lastly observe, 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 fhort and well-known; thofe of a prince's houshold are neceffarily more various and diffuse.

THE causes 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 difputes, 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 state. 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 feldom 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 rarely) 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; or because the fame arguments did not occur formerly as at pre

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