The Oceana of James Harrington and his other works, som [sic] wherof are now first publish'd from his own manuscripts : the whole collected, methodiz'd, and review'd, with an exact account of his life prefix'd / by John Toland.

CHAP. IX.

Of Form in the Judicial part.

1. MULTIPLICITY of Laws, being a multiplicity of Snares for the People, causes Corruption of Government.

2. PAUCITY of Laws requires arbitrary Power in Courts, or Judicatorys.

3. ARBITRARY Power (in reference to Laws) is of three kinds. (1) In making, altering, abrogating, or interpreting of Laws, which belong to the Soverain Power. (2) In applying Laws to Cases which are never any one like another. (3) In reconciling the Laws among themselves.

4. THERE is no difficulty at all in judging of any case what∣soever according to natural Equity.

5. ARBITRARY Power makes any man a competent Judg for his Knowlege; but leaving him to his own Interest, which often∣times is contrary to Justice, makes him also an incompetent Judg, in regard that he may be partial.

6. PARTIALITY is the cause why Laws pretend to abhor Arbitrary Power; nevertheless, seeing that not one case is altogether like another, there must in every Judicatory be som arbitrary Power.

7. PAUCITY of Laws causes arbitrary Power in applying them; and Multiplicity of Laws causes arbitrary Power in reconci∣ling and applying them too.

8. ARBITRARY Power where it can do no wrong, dos the greatest right; because no Law can ever be so fram'd, but that without arbitrary Power it may do wrong.

9. ARBITRARY Power, going upon the Interest of One or of a Few, makes not a just Judicatory.

10. ARBITRARY Power, going upon the Interest of the whole People, makes a just Judicatory.

11. ALL Judicatorys and Laws, which have bin made by Arbi∣trary Power, allow of the Interpretation of Arbitrary Power, and acknowlege an appeal from themselves to it.

12. THAT Law which leaves the least arbitrary Power to the [Chap. IX] Judg or Judicatory, is the most perfect Law.

13. LAWS that are the fewest, plainest, and briefest, leave the least arbitrary Power to the Judg or Judicatory; and being a Light to the People, make the most incorrupt Government.

14. LAWS that are perplext, intricat, tedious, and voluminous, leave the greatest arbitrary Power to the Judg or Judicatory; and raining snares on the People, make the most corrupt Government.

15. SEEING no Law can be so perfect as not to leave arbitrary Power to the Judicatory, that is the best Constitution of a Judicatory where arbitrary Power can do the least hurt, and the worst Constitution of a Judicatory is where arbitrary Power can do the most ill.

16. ARBITRARY Power in one Judg dos the most, in a few Judges dos less, and in a multitude of Judges dos the least hurt.

17. THE ultimat Appeal from all inferior Judicatorys is to som soverain Judg or Judicatory.

18. THE ultimat Result in every Government (as in absolute Mo∣narchy, the Monarch; in Aristocracy, or Aristocratical Monarchy, the Peers; in Democracy, the Popular Assembly) is a soverain Judg or Judicatory that is arbitrary.

19. ARBITRARY Power in Judicatorys is not such as makes no use of the Law, but such by which there is a right use to be made of the Laws.

20. THAT Judicatory where the Judg or Judges are not obnoxi∣ous to Partiality or privat Interest, cannot make a wrong use of Power.

21. THAT Judicatory that cannot make a wrong use of Power, must make a right use of Law.

22. EVERY Judicatory consist•• of a Judg or som Judges without a Jury, or of a Jury on the Bench without any other Judg or Judges, or of a Judg or Judges on the Bench with a Jury at the Bar.

FORM of Government (as to the Judicial part) being thus completed, is sum'd up in the three following Aphorisms.

23. ABSOLUTE Monarchy (for the Judicial part of the Form) admits not of any Jury, but is of som such kind as a Cadee or Judg in a City, or as we say in a Hundred, with an Appeal to a Cadaliskar or a Judg in a Province, from whom also there lys an Appeal to the M••ph∣ti, who is at the devotion of the Grand Signor or of the Monarch.

24. ARISTOCRACY or Aristocratical Monarchy (for the Judicial part of the Form) may admit of a Jury, so it be at the Bar on∣ly, and consists of som such kind as Delegats or ordinary Judges, with an Appeal to a House of Peers; or som such Court, as the Parla∣ment at Paris, which was at the institution in the Reign of HUGH CAPET, a Parlament of soverain Princes.

25. DEMOCRACY (for the Judicial part of the Form) is of som such kind as a Jury on the Bench in every Tribe, consisting of thirty persons or more annually eligible in one third part by the People of that Tribe, with an Appeal from thence to a Judicatory residing in the Ca∣pital City of the like Constitution, annually eligible in one third part out of the Senat or the popular Assembly, or out of both; from which also there lys an Appeal to the People, that is to the Popular Assembly.