exist, nevertheless, in every system of municipal | than the rest, as to recompense the inconveniency laws, and in the actual administration of relative of an alteration. In all such cases, the law of justice numerous uncertainties and acknowledged nature sends us to the law of the land. She didifficulty? Whence, it may be asked, so much rects that either some fixed rule be introduced by room for litigation, and so many subsisting dis- an act of the legislature, or that the rule which putes, if the rules of human duty be neither ob- accident, or custom, or common consent, hath alsure nor dubious? If a system of morality con- ready established, be steadily maintained. Thus, taining both the precepts of revelation and the in the descent of lands, or the inheritance of perdeductions of reason, may be comprised within sonals from intestate proprietors, whether the tæ compass of one moderate volume; and the kindred of the grandmother, or of the great-grandmoralist be able, as he pretends, to describe the mother, shall be preferred in the succession; nights and obligations of mankind, in all the dif- whether the degrees of consanguinity shall be comferent relations they may hold to one another; puted through the common ancestor, or from him; what need of those codes of positive and particu- whether the widow shall take a third or a moiety lar institutions, of those tomes of statutes and re- of her husband's fortune; whether sons shall be ports, which require the employment of a long preferred to daughters, or the elder to the younger ; life even to peruse? And this question is immedi- whether the distinction of age shall be regarded ately connected with the argument which has amongst sisters, as well as between brothers; in been discussed in the preceding paragraph: for, these, and in a great variety of questions which unless there be found some greater uncertainty in the same subject supplies, the law of nature deterthe law of nature, or what may be called natural mines nothing. The only answer she returns to equity, when it comes to be applied to real cases our inquiries is, that some certain and geneand to actual adjudication, than what appears in ral rule be laid down by public authority; be the rules and principles of the science, as delivered obeyed when laid down; and that the quiet of the in the writings of those who treat of the subject, country be not disturbed, nor the expectation of it were better that the determination of every cause heirs frustrated, by capricious innovations. This should be left to the conscience of the judge, silence or neutrality of the law of nature, which we unfettered by precedents and authorities; since have exemplified in the case of intestacy, holds conthe very purpose for which these are introduced, cerning a great part of the questions that relate to s to give a certainty to judicial proceedings, the right or acquisition of property. Recourse then which such proceedings would want without must necessarily be had to statutes, or precedents, them. or usage, to fix what the law of nature has left Now to account for the existence of so many loose. The interpretation of these statutes, the sources of litigation, notwithstanding the clearness search after precedents, the investigation of cusand perfection of natural justice, it should be ob-toms, compose therefore an unavoidable, and at served, in the first place, that treatises of morality the same time a large and intricate, portion of foalways suppose facts to be ascertained; and not rensic business. Positive constitutions or judicial only so, but the intention likewise of the parties authorities are, in like manner, wanted to give to be known and laid bare. For example: when precision to many things which are in their nature we pronounce that promises ought to be fulfilled indeterminate. The age of legal discretion; at in that sense in which the promiser apprehended, what time of life a person shall be deemed comat the time of making the promise, the other partypetent to the performance of any act which may received and understood it: the apprehension of bind his property; whether at twenty, or twentyone side, and the expectation of the other, must one, or earlier or later, or at some point of time be discovered, before this rule can be reduced to between these years; can only be ascertained by a practice, or applied to the determination of any positive rule of the society to which the party beactual dispute. Wherefore the discussion of facts longs. The line has not been drawn by nature; which the moralist supposes to be settled, the the human understanding advancing to maturity discovery of intentions which he presumes to be by insensible degrees, and its progress varying in known, still remain to exercise the inquiry of different individuals. Yet it is necessary, for the courts of justice. And as these facts and inten- sake of mutual security, that a precise age be fixed, tions are often to be inferred, or rather conjectured, and that what is fixed be known to all. It is on from obscure indications, from suspicious testimo- these occasions that the intervention of law supny, or from a comparison of opposite and contend-plies the inconstancy of nature. Again, there in probabilities, they afford a never-failing supply of doubt and litigation. For which reason, as hath been observed in a former part of this work, the cince of morality is to be considered rather as a direction to the parties, 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 exists a multitude of cases, in which the law of nature, that is, the law of public experiency, prescribes nothing, except that some ertain rule he adhered to, and that the rule actally established, be preserved; it either being inherent what rule obtains, or, out of many ruks, no one being so much more advantageous

are other things which are perfectly 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 mas- | ters 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, or to the acceptance of credit or security: the original 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.

nature commands, that reparation be made; and adds to her command, that, when the aggressor and the sufferer disagree, the damage be assessed by authorised and indifferent arbitrators. Here then recourse must be had to courts of law, not only with the permission, but in some measure by the direction, of natural justice.

Sixthly; when controversies arise in the interpretation of written laws, they for the most part arise upon some contingency which the composer of the law did not foresee or think of. In the adjudication of such cases, this dilemma presents itself; if the laws be permitted to operate only upon the cases which actually were contemplated by the law-makers, they will always be found defective: if they be extended to every case to which the reasoning, and spirit, and expediency, of the provision seem to belong, without any farther evidence of the intention of the legislature, we shall allow to the judges a liberty of applying the law, which will fall very little short of the power of making it. If a literal construction be adhered to, the law will often fail of its end; if a loose and vague exposition be admitted, the law might as well have never been enacted; for this license will bring back into the subject all the discretion and uncertainty which it was the design of the le

always must be, embarrassed by these opposite difficulties; and, as it never can be known beforehand, in what degree either consideration may prevail in the mind of the judge, there remains an unavoidable cause of doubt, and a place for contention.

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 suc-gislature to take away. Courts of justice are, and ceeded. 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 com- Seventhly; the deliberations of courts of jusposition is pleaded, depends upon the agreement tice upon every new question, are encumbered which took place between the predecessor of the with additional difficulties, in consequence of the claimant and the ancient owner of the land. The authority which the judgment of the court posappeal to these grants and agreements is dictated sesses, as a precedent to future judicatures; which by natural equity, as well as by the municipal authority appertains not only to the conclusions the law; but concerning the existence, or the condi- court delivers, but to the principles and arguments tions, of such old covenants, doubts will perpetu- upon which they are built. The view of this efally occur, to which the law of nature affords no fect makes it necessary for a judge to look beyond solution. The loss or decay of records, the pe- the case before him; and, beside the attention he rishableness of living memory, the corruption and owes to the truth and justice of the cause between carelessness of tradition, all conspire to multiply the parties, to reflect whether the principles, and uncertainties upon this head; what cannot be maxims, and reasoning, which he adopts and auproduced or proved, must be left to loose and fal- thorises, can be applied with safety to all cases fible presumption. Under the same head may which admit of a comparison with the present. The be included another topic of altercation;-the decision of the cause, were the effects of the detracing out of boundaries, which time, or neglect,cision to stop there, might be easy: but the conor unity of possession, or mixture of occupation, has confounded or obliterated. To which should be added, a difficulty which often presents itself in disputes concerning rights of way, both public and private, and of those easements which one man claims in another man's property, namely, that of distinguishing, after a lapse of years, the use of an indulgence from the exercise of a right.

sequence of establishing the principle which such a decision assumes, may be difficult, though of the utmost importance, to be foreseen and regulated.

Finally; after all the certainty and rest that can be given to points of law, either by the interposition of the legislature or the authority of precedents, one principal source of disputation, and into which indeed the greater part of legal controversies Fifthly; the quantity or extent of an injury, may be resolved, will remain still, namely, "the even when the cause and author of it are known, competition of opposite analogies." When a is often dubious and undefined. If the injury, point of law has been once adjudged, neither that consists in the loss of some specific right, the va- question, nor any which completely, and in all its lue of the right measures the amount of the in-circumstances, corresponds with that, can be jury but what a man may have suffered in his person, from an assault; in his reputation, by slander; or in the comfort of his life, by the seduction of a wife or daughter; or what sum of money shall be deemed a reparation for damages such as these; cannot be ascertained by any rules which the law of nature supplies. The law of

brought a second time into dispute: but questions arise which resemble this only indirectly and in part, in certain views and circumstances, and which may seem to hear an equal or a greater affinity to other adjudged cases; questions which can be brought within any fixed rule only by analogy, and which hold a relation by analogy to different

rule are not so detrimental, as the rule itself is unreasonable;-in criminal prosecutions, it operates considerably in favour of the prisoner: for if a juror find it necessary to surrender to the obstinacy of others, he will much more readily resign his opinion on the side of mercy than of condemnation: in civil suits, it adds weight to the direction of the judge; for when a conference with one another does not seem likely to produce, in the jury, the agreement that is necessary, they will naturally close their disputes by a common submission to the opinion delivered from the bench. However, there seems to be less of the concurrence of separate judgments in the same conclusion, consequently less assurance that the conclusion is founded in reasons of apparent truth and justice, than if the decision were left to a plurality, or to some certain majority of voices.

rules. It is by the urging of the different analogies that the contention of the bar is carried on: and it is in the comparison, adjustment, and reconciliation of them with one another; in the discerning of such distinctions; and in the framing of such a determination, as may either save the various rules alleged in the cause, or if that be impossible, may give up the weaker analogy to the stronger; that the sagacity and wisdom of the court are seen and exercised. Amongst a thou sand instances of this, we may cite one of general notoriety, in the contest that has lately been agitated concerning literary property.-The personal industry which an author expends upon the composition of his work, bears so near a resemblance to that by which every other kind of property is earned, or deserved, or acquired; or rather there exists such a correspondency between what is The second circumstance in our constitution created by the study of man's mind, and the production of his labour in any other way of applying which, however it may succeed in practice, does it, that he seems entitled to the same exclusive, not seem to have been suggested by any intelliassignable, and perpetual, right in both; and that gible fitness in the nature of the thing, is the right to the same protection of law. This was choice that is made of the House of Lords as a the analogy contended for on one side. On the court of appeal from every civil court of judicature other hand, a book, as to the author's right in it, in the kingdom; and the last also and highest apappears similar to an invention of art, as a ma-peal to which the subject can resort. There apchine, an engine, a medicine: and since the law permits these to be copied, or imitated, except where an exclusive use or sale is reserved to the inventor by patent, the same liberty should be allowed in the publication and sale of books. This was the analogy maintained by the advocates of an open trade. And the competition of these opposite analogies constituted the difficulty of the case, as far as the same was argued, or adjudged, upon principles of common law-One example may serve to illustrate our meaning: but whoever takes up a volume of Reports, will find most of the arguments it contains, capable of the same analysis: although the analogies, must be confessed, are sometimes so entangled as not to be easily unravelled, or even perceived.

pears to be nothing in the constitution of that assembly; in the education, habits, character, or professions, of the members who compose it; in the mode of their appointment, or the right by which they succeed to their places in it; that should qualify them for this arduous office; except perhaps, that the elevation of their rank and fortune affords a security against the offer and influence of small bribes. Officers of the army and navy, courtiers, ecclesiastics; young men who have just attained the age of twenty-one, and who have passed their youth in the dissipation and pursuits which commonly accompany the possession or inheritance of great fortunes; country-gentlemen, occupied in the management of their estates, or in the care of their domestic conDoubtful and obscure points of law are not cerns and family interests; the greater part of the however nearly so numerous as they are appre-assembly born to their station, that is, placed in it hended to be. Out of the multitude of causes which, in the course of each year, are brought to trial in the metropolis, or upon the circuits, there are few in which any point is reserved for the judgment of superior courts. Yet these few contain all the doubts with which the law is chargeable: for as to the rest, the uncertainty, as hath been shown above, is not in the law, but in the means of human information.

by chance; most of the rest advanced to the peerage for services, and from motives, utterly unconnected with legal erudition :-these men compose the tribunal, to which the constitution entrusts the interpretation of her laws, and the ultimate decision of every dispute between her subjects. These are the men assigned to review judgments of law, pronounced by sages of the profession, who have spent their lives in the study and prac tice of the jurisprudence of their country. Such is the order which our ancestors have established. There are two peculiarities in the judicial con- The effect only proves the truth of this maxim;— stitution of this country, which do not carry with "That when a single institution is extremely disthem that evidence of their propriety which recom-sonant from other parts of the system to which it mends almost every other part of the system. The first of these is the rule which requires that juries be unanimous in their verdicts. To expect that twelve men, taken by lot out of a promiscuous multitude, should agree in their opinion upon points confessedly dubious, and upon which of tentimes the wisest judgments might be holden in suspense; or to suppose that any real unanimity or change of opinion, in the dissenting jurors, could be procured by confining them until they all consented to the same verdict, bespeaks more of the conceit of a barbarous age, than of the policy which could dictate such an institution as that of juries. Nevertheless, the effects of this

belongs, it will always find some way of reconciling itself to the analogy which governs and pervades the rest." By constantly placing in the House of Lords some of the most eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abstract question of law awaits their determination; by the almost implicit and undisputed deference, which the uninformed part of the house find it necessary to pay to the learning of their colleagues; the appeal to the House of Lords becomes in fact an appeal to the collected wisdom of our supreme courts of justice; receiving indeed solemnity, but little perhaps of direction, from

the presence of the assembly in which it is heard fended from the effects of the crime, by any other and determined. expedient. The sanguinary laws which have been These, however, even if real, are minute imper-made against counterfeiting or diminishing the fections. A politician who should sit down to delineate a plan for the dispensation of public justice, guarded against all access to influence and corruption, and bringing together the separate advantages of knowledge and impartiality, would find, when he had done, that he had been transcribing the judicial constitution of England. And it may teach the most discontented amongst us to acquiesce in the government of his country, to reflect, that the pure, and wise, and equal administration of the laws, forms the first end and blessing of social union; and that this blessing is enjoyed by him in a perfection, which he will seek in vain in any other nation of the world.

yet the mitigation of punishment, the exercise of lenity, may without danger be intrusted to the executive magistrate, whose discretion will operate upon those numerous, unforeseen, mutable, and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. Without the power of relaxation lodged in a living authority, either some

the public safety required to suffer; or some would undergo this punishment, where it was neither deserved nor necessary. For if judgment of death were reserved for one or two species of crimes only (which would probably be the case if that judg ment was intended to be executed without exception,) crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation, which did not fall within any description of offences that the laws had made capital, and which consequently could not receive the punishment their own malignity and the public safety required.-What is worse, it would be known before-hand, that such crimes might be committed without danger to the offender's life. On the other hand, if to reach these possible cases, the whole class of offences to which they belong be subjected to pains of death, and no power of remitting this severity remain any where, the execution of the laws will become more sanguinary than the public compassion would endure, or than is necessary to the general security.

From the justice of God, we are taught to look, for a gradation of punishment exactly proportioned to the guilt of the offender: when therefore, in assigning the degrees of human punishment, we introduce considerations distinct from that guilt, and a proportion so varied by external circumstances, that equal crimes frequently undergo unequal punishments, or the less crime the greater: it is natural to demand the reason why a different mea-offenders would escape capital punishment, whom sure of punishment should be expected from God, and observed by man; why that rule, which befits the absolute and perfect justice of the Deity, should not be the rule which ought to be pursued and imitated by human laws.-The solution of this difficulty must be sought for in those peculiar attributes of the Divine nature, which distinguish the dispensations of Supreme Wisdom from the proceedings of human judicature. A being whose knowledge penetrates every concealment, from the operation of whose will no art or flight can escape, and in whose hands punishment is sure; such a Being may conduct the moral government of Eis creation, in the best and wisest manner, by pronouncing a law that every crime shall finally receive a punishment proportioned to the guilt which it contains, abstracted from any foreign consideration whatever; and may testify his veracity to the spectators of his judgments, by carrying this law into strict execution. But when the care of the public safety is intrusted to men, whose authority over their fellow-creatures is limited by defects of power and knowledge; from whose utmost vigilance and sagacity the greatest offenders often lie hid; whose wisest precautions and speediest pursuit may be eluded by artifice or concealment; a different necessity, a new rule of proceeding, results from the very imperfection of their faculties. In their hands, the uncertainty of punishment Est be compensated by the severity. The ease with which crimes are committed or concealed, must be counteracted by additional penalties and increased terrors. The very end for which human government is established, requires that its regulations be adapted to the suppression of crimes. This end, whatever it may do in the plans of Infinite Wisdom, does not, in the designation of temporal penalties, always coincide with the proportionate punishment of guilt.

There are two methods of administering penal justice.

The first method assigns capital punishment to few offences, and inflicts it invariably.

The second method assigns capital punishment to many kinds of offences, but inflicts it only upon a few examples of each kind.

The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime which, under any possible circumstances, may merit the punishment of death: but when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes, render them fit examples of public justice. By this expedient, few actually suffer death, whilst the dread and danger of it hang over the crimes of many. The tenderness of the law cannot be taken advantage of. The life of the subject is spared as far as the necessity of restraint and intimidation permits; yet no one will adventure upon the commission of any enormous crime, from a knowledge that the laws have not provided for its punishment. The wisdom and humanity of this design furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries. The charge of cruelty is answered by observing, that these laws were never meant to be carried into indiscriminate execution; that the legislature, when it establishes its last and highest

relax their severity as often as circumstances appear to palliate the offence, or even as often as those circumstances of aggravation are wanting which rendered this rigorous interposition necessary. Upon this plan, it is enough to vindicate the lenity of the laws, that some instances are to be found in each class of capital crimes, which require the restraint of capital punishment, and that this restraint could not be applied without subjecting the whole class to the same condemnation.

The latter of which two methods has been long adopted in this country, where, of those who receive sentence of death, scarcely one in ten is exe-sanctions, trusts to the benignity of the crown to cuted. And the preference of this to the former method seems to be founded in the consideration, that the selection of proper objects for capital punishment principally depends upon circumstances, which, however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define beforehand; or to ascertain however with that exactness which is requisite in kg descriptions. Hence, although it be necessary to fix by precise rules of law the boundary on one sde, that is, the limit to which the punishment may be extended; and also that nothing less than the authority of the whole legislature be suffered to determine that boundary, and assign these rules;

There is however one species of crimes, the making of which capital, can hardly, I think, be defended even upon the comprehensive principle just now stated:-I mean that of privately steal