the different parts of the government; and as fome of the places are near 300 miles apart, their neceffary travel may be estimated at about 1300 miles annually. From the laft Tuesday of Auguft 1783, till the laft Tuesday in December following inclufively, this Court is faid to have fat every week, except about three, notwithfanding which,theprincipal part of the business in Effexcounty for November term, was thrown into the year 1784. In Fé bruary and March laft, this Court fat FOUR weeks fucceffively in Suffolk county, and put over many caufes till the next term. And the bufinefs,on the western circuit, will probably when that circuit is over, be much in arrears. A divifion of the government into two Circuits, with three judges in each,carrying on both circuits at the fame time,might perhaps remedy the inconvenience. But the prefent eftablish ment is fo fmall, that the fupreme executive, have not been able, fince the Conflitution has been adopted, to have five judges at any one time. And gentlemen that have been nominated to that department have declined by reafon of the fmallness of the allowance.

To remedy these inconveniences the following plan is fubmitted to the confideration of the public.

Let the government be divided into three diflricts or circuits.

Let the juftices of the fupreme judicial court be increafed to Nine, and three ride a circuit together, for the trying of iffues, any two of whom to be a quorum.

That there be two law terms annually, at which all the juftices fhould attend, but any five of them to make a quorum: At these terms special verdifts and mere matters of law to be decided; and alfo rules and methods of practice to be fettled, that should be nbferved on all the circuits, that a uniformity of procedure may be eftablished in all parts of the govern

ment.

The

It may be objected, that this plan, if adopted, willin effect, difcontinue the feveral courts of common pleas thro' the ftate. To this it may be asked, what real fervice are the courts of common pleas in deciding caufes in the method they are ufually conducted? Not one caufe in ten that is difputed is finally iffued there, nor one in five perhaps bas a trial there of any kind. parties have ufually fince the paffing the a&t called the Rubber A, brought the caufes forward by agreement, in order to have two trials at the fupreme court. The time and expence ufually attending a fuit in the common pleas is only preparatory to a trial; and very frequently the preparation is inThe Complete in the firft inftance.

defendant's anfwer that he means to rifque his defence upon, is many times not put in, till he comes before the fuFreme court. The expence of every k nd therefore attending a fuit in the common pleas will be faved to the par ties, and they at the fame time will be nearer a final decifion. It may be faid, the number of fuits will be fuch in fome large counties, as will unavoidably protract the term to a great length, and the fuitors, whofe caufes are to be litigated, will be greatly delayed by the courts determining on fuch as are ufually filed default actions; and that the time debtors obtain by an appeal will be taken away. For if fuits are originally bro't to the fupreme court, there will be no appealing in order to delay payment. To remedy in fome measure thefe inconveniencies, let all writs be ferved Twenty one days, but returnable into the Clerk's office feven days before the fitting of the Court; where eftate is attached and a fum. mons left, let a copy of the declaration, or fuch an abstract of it be an. nexed to the fummons, that the de fendant may with certainty be ac quainted with the foundation of the plaintiff's complaint, let all actions be

entered

entered with the clerk feven days before the fitting of the Court, and the defendant file with the clerk the answer he intends to abide by, four days before the fitting of the Court, and for want of such aufwer, judgment to be entered up against him, upon NIHIL DICIT. Let two days, at the beginning of each term, be affigned to this bufinefs, and motions for continuances. The jury of trials to attend the third day; but these and other rules of practice to be varied as the circumstances of the counties and the business appear to require.

But fome may ask, if the prefent Supreme Judicial Court, which can confift of but five, and have been but four at any one time, are scarcely fupported, how can nine in the embarraffed fituation of our finances be fupported?

This is a queftion that ought to be attended to, and to which the following is propofed as an anfwer, viz. That fated fees on all fuits brought before the Court, be encreased about one fourth part, beyond what are now taken in the Supreme Court. Thefe fees thus increafed, will probably amount to a larger fum than what government have as yet thought proper to allow as falaries to all the Juftices of the Supreme Judicial Court, put together, in cafe there were five in number. And as the fuitors will be eafed of all expence at the common pleas, this increase of fees may well be made without being thought burthenfome. Whether the amount of the fees be over rated or not, may easily be afcertained, by calling on the feveral clerks of Common Pleas for the amount of fees by them annually paid over to the Juftices of the Common Pleas through the government. Let therefore certain fees of about one fourth more than those now taken, be paid to the clerk on every fuit, petition, or memorial preferred, for the ufe of the Court, and the fums that thefe fees amount to be deduЯed from the annual falaries, that fhall be fixed by the Legislature for the judges, agreeable to the conAitution.

Perhaps it will be faid, that the number of terms the Judges will have to go into each county, will take up more time than the feafon will admit of. To form an eftimate of this matter, suppose the terms to be as follows, viz.

Suffolk, 3 terms at 3 weeks each, g
Middlefex,3 do. at 2,5 weeks each, 7,5
Effex, 3 do. at 2 weeks each, 6
Worcester, 3do. at 2,5 weeks each, 7:5
Hampshire, 3 do. at 2 weeks each, 6
Berkshire, a do, at 2,5 weeks each, 5
Plymouth, 2 do. at 2 weeks each, 4
Bristol, 2 do. at 2 weeks each,
4
Barnstable, 2 do. at 1,5 week each, 3
York, 2 do. at 2 weeks each,
Cumberland, & do. at 2 weeks each, 4
Lincoln, 2 do. at 2,5 week each,
Dukes, I do. at 1 week each,
Nantucket, I do. at 1 week each, r

Ι

5

I

29

Perhaps the fmall number of fuits that originate between the inhabitants of the two iflands may render it unneceffary for the Supreme Court to go thither for fome time to come, unless for determining on fuch criminal of fences as have not been cognizeable in a Court of Seflions. They might therefore, for the purpofe of determining civil fuits, be annexed to fome other counties,or remain in the ftate that they have heretofore been in, and should it be needful for a Supreme Court to be held there for determining criminal matters, the Governor and Council might appoint a fpecial term for that purpose.

We fall perhaps not be very far from truth if we take for granted, the proportion of mankind who die in the ftate of infancy, or who never reach the fecond flage, to be one third of the whole human race; whether it be greater or lefs is not neceffary here precifely to determine, it is fufficient for us to prove that a very large pro portion of those that are born into the world, are certainly upon the whole lofers by their exiftence in the prefent flate, or in other words, that the pres ponderancy is on the fide of evil. I hall be excufed then in dwelling a little longer upon this part of my argument than the trifling age of infancy might feem to demand. I will not affert that a fingle inftance of the excess of natural evil in the period of human existence implies the neceffity of a future ftate, though perhaps even this might be rendered extremely probable; for a fingle infance of injuftice to an individual, is as inconfiftent with the equity of the Deity, as to the whole fpecies; both are equally repugnant to our ideas of infinite goodnels; but if it can be proved that this is the cafe with even a very confiderable part of the whole fpecies, it is advancing a confiderable way to the fapport of our hypothefis. No one will deny that the tenderness and ex. treme delicacy of the infant frame is fuch as to render it incident to a thoufand evils from which the more advanced periods are comparatively exempt; whether the fenfations are as acute in this ftate of the animal organs, as when the fibres have acquired a greater degree of confiftency and firmnefs, I will not prefume to determine; the greater flexibility of parts would lead us to infer a greater irritability, in conféquence of which they must be more fufceptible of mechanical impreffions; but as it is impoffible to arrive to a demonßrative folution of this question, we appeal to fuch facts as fall under the cognizance of our fenfes. That many of the inconveniences which we foffer in the years of infancy, are the effects of the abfurd method which custom has introduced in the treatment of children, I will not deny, but I will

nevertheless ventu, to give it as my opinion, that, setting afide these, we fhall find a fufficient number of evils infeparable from this ftate, and which have their origin in the nature and conftitution of our frame, to convince any reasonable man that they far outweigh all the poffible enjoyments of this feeble period.

The fignal of distress is the first herald that announces the arrival of the helpless franger into a new mode of existence; how foon do the wants of nature begin to demand the kind offices of hofpitality and relief? How many pains do they feel because they are incapable of pointing them out? Does the hand of difeafe arreft them in the early days of their infancy,they have no language in which to convey an idea of their diftrefs but that of cries and tears; many of those tortures to which they are fo frequently a prey, might doubtless be remedied were they capable of defcribing the feat of them, and the particular form of their complaints. Is there a more deftreffing spectacle than an innocent BABE in the convulfive pangs of an unknown difeafe? What a relief might it be, could it only defcribe its own fenfations? Perhaps even in cafes, where the cafe admitted not of a remedy, were it confcious of the fympathy of its friends, and that anxiety which exifts in the breafts of the doating parents, or of their exertions to afford it relief, it might in fome degree mitigate the violence of its diftrefs. Does it not appear fo far from entertaining this folacing reflection, as to view every one in the light of an enemy, who attempts to adminifter relief? Of how little avail is the medical art in cafes of this kind! It is a great advantage in the application of remedies, that the effects they produce on the feelings of the patient should be accurately defcribed, but here no errors can be corrected, no changes in the procefs from any circumstances of peculiarity in conflitution can be made, for better adapting the remedies to it. If any one fhould anfwer, that from the fimplicity of diet their difeafes are few, I appeal to the large proportion

of

of their time whilft awake, which. they pafs in expreffing their diftreffes in cries, and fhall advert to that fingle fource of pain which is infeparable from the fate of infancy, and which conftitutes a clafs of diftafes to which the other periods of life are little expofed. The earlieft months are ufually attended with a long train of complaints, the natural confequence of the formation of the inflruments by which the infant is to prepare the food prefented, it for nourishment and fupport, the months of teething-- which even continue during a confiderable part of childhood, are ever confidered as the most dangerous flage of life; the pain always attendant on this process of nature is very pungent, and fatal fymptoms are often the confequence. This operation is a neceffary confequence of its existence, admits of very little mitigation from the hand of art, and carries many an infant from its cradle to the grave! Where are the pleafures and enjoyments to ballance the account at this period! What a lift of miferies have we enumerated, all of them real pofitive evils! and is there not a fingiè pofitive pleasure to compenfate therefor?

If there are any they are apparently but few, and exceflively fmall; even its pleasures are nothing else than a removal of pain, and the existence of them is totally dependant upon, and arifes from its wants. How miferable is the state of infancy, and yet one. third of the human race are born into the world for this ftate alone! one third of mankind are certainly in this ftate no gainers by their exiftence! life is no boon, but on the contrary an evil, much to be deprecated, and nonexiftence itfelf is to be preferred to it.

The thoughtless age of childhood feems to have fome claim to a fhare of pofitive happiness; but the fenfibility being keen and the fource of corporeal enjoyments perhaps no greater than in the period of infancy, painful impreffions, though lefs permanent, are more easily and more frequently made; he leaft difappointments have deeper effects upon their tender minds, than the most important difafters of riper age. But what appears to me in general to diminish the fum of enjoyment in this ftage, is that natural restraint

which is neceffarily implied in the dependant ftate of childhood. The aws with which the prefence and government of a parent or inftructor, affects the mind of a child, has doubtless a foundation in nature, and that it is generally irkfome and tedious to thofe i fubordination, no one who ftudies the operations of the human mind will deny there are a thoufand foolish gratifications which a wife parent will think it proper to deny, and many real wants which it will not be in his power to fupply; a ftate of perpetual indulgences will be productive of much evil in a future period, or a prudent refraint will produce prefent uneaGnefs.

(To be continued.)

An Effay on the Right to a free Exercife of Confcience in Religious matters.

(Concluded from page 179.)

W

HEN the author of this Effay introduced it to the Magazine, he did not expect to have claimed the exercife of the public patience, or to have folicited the public candor fo long. But he found the fubje&t fo copious, that he might have continued it for a long time yet to come. As the Third Article of the Declaration of Rights only now remains for examination, and as that article will undergo frequent difquifitions in the tribunals of juftice, the Effay will be concluded by a few general obfervations upon it.

Art. III. As the happiness of a people, and the good order and prefervation of civil government, effentially depend upou piety, religion and morality; and as these cannot be generally diffused through a community, but by the inftitution of the public worship of God, and of public inflitutions in piety, religion and morality: Therefore, to promote their happiness, and to fecure the good order and prefervation of their government, the people of this Common. wealth have a right to inveft their. legislature with power to authorize and require, and the legislature shall, from time to time, authorize and re

quiro

quire, the feveral towns, parishes, precincts, and other bod es politic, or religious focieties, to make fuitable provifion, at their own expence, for the inftitution of the public worship of God, and for the fupport and maintenance of public proteftant teachers of piety, religion, and morality, in all cafes where fuch provifion fhall not be made voluntarily.

And the people of this Commonwealth have alfo a right to, and do, invest their legiflature with authority to enjoin upon all the fubjects an attendance upon the inftructions of the public teachers aforefaid, at ftated times and feafons, if there be any on whofe inftructions they can confcientiously and conveniently attend.

Provided notwithftanding, that the feveral towns, parishes, precincts, and other bodies-politic, or religious focietjes, fhall, at all times, have the exClufive right of electing their public teachers, and of contracting with them for their fupport and maintenance.

And all monies paid by the fubject to the fupport of public worfhip, and of the public teachers aforefaid, shall, if he require it, be uniformly applied to the fupport of the public teacher or teachers of his own religious fect or denomination, provided there be any on whofe inftru&tions he attends; otherwife, it may be paid towards the fupport of the teacher or teachers of the parish or precine, in which the faid mon.es are raifed.

And every denomination of chriftians, demeaning themfelves peaceably, and as good fubjects of the Common: wealth, fhall be equally under the protection of the law: And no fubordination of any one fect or denomination to another fhall ever be established by law.

The firft claufe in this article contains three propofitions. First, that the happiness of a people depends upon piety and morality. Secondly, that thefe cannot be generally diffused without public worship. And, thirdly, that the government has a right to take a part of the property of the citizens, and appropriate it for this purpose.

As to the firft of thefe propofitions' that the happiness of the people effentially depends upon piety and morality; I believe it will not be denied by any one, who hath feriously thought upon the matter. There may be fome who, with Hobbs and his difciples, fuppofe, that there is a natural fatality attending all the affairs and actions of this life, and that therefore, there is nothing in the universe, but what is as it ought to be, or that could be other wife than it is; and may feel themfelves fupported by a mifconfruction ofPope's fentiment, of " partial evil being univerfal good." To thefe we have nothing to fay, but to thofe, the feelings of whofe minds urge them to acts of morality, or whofe confciences point them to a future judgment, we need not urge any thing in fupport of a propofition which they cannot but approve. The Supreme Being has favoured the world with fo many motives to provoke mankind to as of focial benevolence, that one would fuppofe the divine government to be conducted with folly, unless these were neceffary to our happiness here. One only inftance fhall be mentioned. Take away from the human race the idea of their mortality, and in a very fhort space of time the ferocity and turpitude of man would burst forth in the most horrid acts of violence, hurried on by ambition and avarice, with all their dreadful concomitants, deluging the world in mifery. How wife then is it in government to inculcate the ideas of death and judgment?

The fecond propofition is full as plain; that thofe fentiments, neceffary to our fecurity as a people, cannot be generally diffufed without the inftitution of public worship, and public moral teaching; for how fhould the ideas of religion and morality be impreffed on the rifing generation, without infitutions of this nature, or where fhould the force of example arife from, if there were no fuch public inflitutions? He who attempts to prove that these inftitutions are not neceffary,oppofes himself to the opinion of the whole world, fupported by the expe

rieace