which he will resort. By this means a tribunal which may happen to be occupied by ignorant_or suspected judges, will be deserted for others that possess more of the confidence of the nation.

But, lastly, if several courts, co-ordinate to and independent of each other, subsist together in the country, it seems necessary that the appeals from all of them should meet and terminate in the same judicature; in order that one supreme tribunal, by whose final sentence all others are bound and concluded, may superintend and preside over the rest. This constitution is necessary for two purposes;to preserve a uniformity in the decisions of inferior courts, and to maintain to each the proper limits of its jurisdiction. Without a common superior, different courts might establish contradictory rules of adjudication, and the contradiction be final and without remedy; the same question might receive opposite determinations, according as it was brought before one court or another, and the deter. mination in each be ultimate and irreversible. common appellant jurisdiction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent (which may be expected, whilst it is the same court which is at last resorted to;) the different courts, from which the appeals are brought will be reduced to a like consistency with one another. Moreover, if questions arise between courts independent of each other, concerning the extent and boundaries of their respective jurisdiction, as each will be desirous of enlarging its own, an authority which both acknowledge can alone adjust the controversy. Such a power, therefore, must reside somewhere, lest the endless opposition and mutual encroachments of its courts of justice.

A

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 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 this 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 judges 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 unin structed 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 before 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 pub lic safety.

Nevertheless, the trial by jury is sometimes

ties, 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 indiffeent what rule obtains, or, out of may rules, no one being so much more advantageous than the rest, as o recompense the inconveniency of an alteration. In all such cases, the law of nature sends us to the aw of the land. She directs that either some fixed ule be introduced by an act of the legislature, or hat the rule which accident, or custom, or common consent, hath already established, be steadily maintained. Thus, in the descent of lands, or the ineritance of personals from intestate proprietors, whether the kindred of the grandmother, or of the great-grandmother, shall be preferred in the sucession; whether the degrees of consanguinity hall be computed through the common ancestor, or rom him; whether the widow shall take a third or moiety of her husband's fortune; whether sons hall be preferred to daughters, or the elder to the Younger; whether the distinction of age shall be egarded amongst sisters, as well as between brohers; in these, and in a great variety of questions vhich the same subject supplies, the law of nature letermines nothing. The only answer she returns o our inquiries is, that some certain and genera! ule be laid down by public authority; be obeyed vhen laid down; and that the quiet of the country e not disturbed, nor the expectation of heirs frusrated, by capricious innovations. This silence or eutrality of the law of nature, which we have exmplified in the case of intestacy, holds concerning great part of the questions that relate to the right r acquisition of property. Recourse then must ecessarily be had to statutes, or precedents, or sage, to fix what the law of nature has left loose

The interpretation of these statutes, the searcit 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 indetermi nate. 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 varying 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 per. fectly 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, ar to the acceptance of credit or security; the ori ginal 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. In 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