in legal decifions. The conftruction of English courts of law, in which caufes are tried by a jury, with the affiftance of a judge, combines the two fpecies together with peculiar fuccefs. This admirable contrivance unites the wisdom of a fixed with the integrity of a cafual judicature; and avoids, in a great measure, the inconveniencies of both. The judge imparts to the jury the benefit of his erudition and experience; the jury, by their difinterestedness, check any corrupt partialities which previous application may have produced in the judge. If the determination was left to the judge, the party might suffer under the fuperior interest of his adverfary: if it was left to an uninftructed jury, his rights would be in ftill greater danger from the ignorance of those who were to decide upon them. The prefent wife admixture of chance and choice in the conftitution of the court in which his caufe 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

VOL. II.

R

the

the peace, especially for offences against the game laws; courts of confcience; extending the jurifdiction of courts of equity; urging too far the diftinction between queftions of law and matters of fact-are all fo many infringements upon this great charter of public fafety.

Nevertheless, the trial by jury is fometimes found inadequate to the administration of equal juftice. This imperfection takes place chiefly in difputes in which fome popular paffion or prejudice intervenes; as where a particular order of men advance claims upon the rest of the community, which is the cafe of the clergy contending for tythes; or where an order of men are obnoxious by their profeffion, as are officers of the revenue, bailiffs, bailiffs followers, and other low minifters of the law; or where one of the parties has an intereft in common with the general intereft of the jurors, and that of the other is opposed to it, as in contests between landlords and tenants, between lords of manors and the holders of eftates under them; or, laftly, where the minds of men are inflamed by political diffenfions or religious hatred. These prejudices act most powerfully upon the common people, of which order juries are made up. The force and danger of them are also increased

by

by the very circumftance of taking juries out of the county in which the fubject of dispute arifes. In the neighbourhood of the parties the cause is often prejudged: and thefe fecret decifions of the mind proceed commonly more upon fentiments of favour or hatred-upon fome opinion concerning the fect, family, profeffion, character, connections, or circumstances of the parties-than upon any knowledge or difcuffion of the proper merits of the question.. More exact juftice would, in many instances, be rendered to the fuitors, if the determination were left entirely to the judges; provided we could depend upon the fame purity of conduct, when the power of these magiftrates was enlarged, which they have long manifested in the exercise of a mixed and reftrained authority. But this is an experiment too big with public danger to be hazarded. The effects, however, of fome local prejudices might be fafely obviated, by a law empowering the court, in which the action is brought, to fend the cause to trial in a diftant county: the expences at ending the change of place always falling upon the party 'who applied for it.

There is a fecond division of courts of justice, which presents a new alternative of difficulties.

Either one, two, or a few fovereign courts may be erected in the metropolis, for the whole kingdom to refort to; or courts of local jurifdiction may be fixed in various provinces and districts of the empire. Great, though opposite inconveniencies attend each arrangement. If the court be remote and folemn, it becomes, by thefe very qualities, expenfive and dilatory: the expence is unavoidably increafed when witnesses, parties, and agents must be brought to attend from diftant parts of the country: and, where the whole judicial bufinefs of a large nation is collected into a few fuperior tribunals, it will be found impoffible, even if the prolixity of forms which retards the progrefs of caufes were removed, to give a prompt hearing to every complaint, or an immediate answer to any. On the other hand, if to remedy these evils, and to render the administration of justice cheap and speedy, domeftic and fummary tribunals be erected in each neighbourhood, the advantage of fuch courts will be accompanied with all the dangers of ignorance and partiality, and with a certain mifchief of confufion and contrariety in their decifions. The law of England, by its circuit, or itinerary courts, contains a provifion for the diftribution of private justice, in a

great

great measure relieved from both thefe objections. As the prefiding magiftrate comes into the country a stranger to its prejudices, rivalfhips, and connections, he brings with him none of those attachments and regards, which are so apt to pervert the course of justice, when the parties and the judges inhabit the same neighbourhood. Again, as this magiftrate is ufually one of the judges of the fupreme tribunals of the kingdom, and has paffed his life in the study and administration of the laws, he poffeffes, it may be prefumed, thofe profeffional qualifications, which befit the dignity and importance of his ftation. Laftly, as both he, and the advocates who accompany him in his circuit, are employed in the bufinefs of those fuperior courts (to which alfo their proceedings are amenable), they will naturally conduct themselves by the rules of adjudication which they have applied or learnt there: and by this means maintain, what conftitutes a principal perfection of civil government, one law of the land in every part and diftrict of the empire.

Next to the confiitution of courts of juftice, we are naturally led to confider the maxims which ought to guide their proceedings: and, upon this fubject, the chief enquiry will be,