Another collection of philosophical conferences of the French virtuosi upon questions of all sorts for the improving of natural knowledg made in the assembly of the Beaux Esprits at Paris by the most ingenious persons of that nation / render'd into English by G. Havers, Gent. & J. Davies ..., Gent.

CONFERENCE CLXXIX. What are the most common Causes of Law-suits; and why they are more now than heretofore. (Book 179)

PLato designing a Common-wealth, whose Citizens might live in good intelligence, justly excludes out of it the words of Mine and Thine; conceiving, that so long as there was any thing to be divided, there would ever be Male-contents; because Self-love (the root from whence the too great desire of keeping and acquiring arises) acts variously in Men; by main force and strong hand in time of War, and in Peace by Law-suits. Now the desire of Getting, having never been so great as at this day, nor so much countenanc'd and rewarded, (since in conside∣ration of wealth most Offices are dispos'd of) 'tis no won∣der if Law-suits be more numerous at this day than in times past.

The Second said, That Community of Goods, feign'd by the Poets, and exemplifi'd in the Primitive Church, (bating the Charity which produc'd it) would cause as many mischiefs, and, consequently, Law-suits, as there are at present. For every one would endeavour to appropriate what should be common, and despise it if not able to compass it; as we see common Causes are neglected, and commonly lost, for private interest. Whence appears the impertinence of some Legislators, and of the Nicolaitans, who, that the Children might be lov'd the more, would have Wives common; for common Wives and Children would be own'd by no Body; and if such Women as belong but to two or three, keep them alwayes in jealousie, and many times ingage them in a Law-suit, what would those do that belong'd to all the world? Wherefore, I conceive, that if contrary Effects have contrary Causes, 'tis Plenty, and its Daughter, Pride, that causeth Law-suits; and Poverty and Hu∣mility makes Peace and Agreements. Which the French De∣mocritus intimates, where he introduces an old man reconciling two Adversaries, but 'tis after they are both undone. Thus also the Circle of Humane Life represents Labour holding Wealth by the Hand, Wealth holding Pride, Pride holding Contention, which causeth Poverty; this, Humility; which again produces Labour; that, Wealth; and so round again. For of fifty Law-suits, not one would begin between the par∣ties, (or at least it would soon be determin'd) if either would humble themselves as much one to the other, as they do to their Judges; yea, oftentimes to their Council. Wherefore Vanity being greater in this Age than ever it was, (although with less reason in most) 'tis no wonder if our times abound more with Law-suits than the former.

The Third said, That such as are at their ease have no mind to Law-suits; and therefore 'tis not Plenty that begets them, but Necessity, yet not an absolute one; for he that hath no∣thing cannot go to Law; but such, that the one cannot pay what he owes, and the other cannot be without it: In every other Case, Accommodements are possible. 'Tis from this Source that so many Seisures and Sentences proceed, which the indebted would never suffer, had they wherewithall to pay, considering that the whole charges must fall upon themselves. Now as there were never so many rich, so there were never so many poor, as there are at this day in France; because every body labours out of the vanity above-mention'd, to disable themselves every day more and more, laughing at the Constitutions which are made to reduce us to frugality, and ascribing all inconveniences both publick and private to any other Cause but themselves.

The Fourth said, That though the Ages past having had the same vicissitudes of Peace and War, and of Poverty and Riches, yet had they not so many Law-suits as there are at present; and therefore some other Cause thereof must be sought, which possibly is this; That the Spirits of Men are become more refin'd and subtle in the several Ages of the world, and consequently, advanc'd to a higher pitch of maliciousness, whence many difficulties and contest arise in such matters, wherein the goodness and simplici∣ty of our Ancestors found none at all. Nor hath the multitude and diversity of Laws been a small occasion of this bad event. For (besides the Roman Laws which lay long in oblivion, and were restor'd to light by Veruher, in the year 1127. and the Canons compil'd by Gratian, (whence came the judicial forma∣lities) our Customs and our Ordinances; and amongst others, those made since Charls VIII. with long preambles and reason∣ings in imitation of Justinian, have stirr'd up more Law-suits, than there were in a thousand years before. So that hath been good work for such as were minded to draw profit thereby, to make so confus'd and intricate an Art of the Law, that there is almost no Case wherein they cannot find some trick to multiply a Suit, and render it immortal) Moral Reason (the founda∣tion of the Law) admits a thousand different faces, not only in circumstances of Fact, but also in matter of Law; whence there are few Laws but have their contraries.

The Fifth said, That the multiplicity of our Law-suits is to be attributed to the humor of the French Nation, which is desirous of change, and naturally subtle and eloquent. Whence a Latine Poet stills France the Nurse of Lawyers. Likewise the improve∣ment of Learning in this last Age, hath contributed much there∣unto: And the sight of great Estates gotten by the Law, hath induc'd many Parents to put their Children to that profession, as the readiest way to advancement. Such as could not be Coun∣sellors, have been made Attornies, Solliciters, Sergeants, and this great number of people employ their inventions to get a

livelyhood, which they cannot do without Law-suits. And therefore 'tis no wonder if they advise, continue, multiply, and eternise them as much as they can; egging on the Plaintiff by the motive of Profit, and the Defendant by that of Self-preservation; and refusing to the more simple their writings and other such helps as might bring them to accord.

The Sixth said, That Law-suits increase or diminish according to the diversities of proportions kept in the Administration of Justice. For some measure them by the Law of Nature, (whereby all Men are born equal) and proceed by Arithmetical Proportion. Thus the Medes turn'd Justice into Equality; whereas (as Xenophon told Cyrus, reproving him for awarding the coats to his Companions, according to their stature, and not according to the right and propriety) the Persians made Justice equal. This Arithmetical Proportion was observ'd by Draco, Solon, Lycurgus, and all popular States; where every thing was put to the balance. Such also was the Law of Retaliation among the Jews; Eye for Eye, and Tooth for Tooth. But this equality having so many inconveniences, that many times the highest Ju∣stice is the highest Injustice; Plato made Justice arbitrary with∣out any other Laws but those drawn from the proportion of the great to the small, and other circumstances, which he call'd Equity, or Geometrical Proportion. Yet this Justice being also too vagous, and left to the discretion of Magistrates, who are sub∣ject to corruption; therefore Aristotle chose a middle way be∣tween those two Extreams, regulating Commutative Justice, which judgeth of the right of private Men by Arithmetical Pro∣portion; and Distributive, which is for publick Affairs, by Geo∣metrical Proportion. And our usage hath approv'd an Harmo∣nical proportion; the Supream Magistrate using both Law and Equity, and tempering the too great strictness of the former, and the much liberty of the other; which course is observ'd in good Monarchies, where the Chief Courts being above the Law, and yet having Equity in their Power, make an agreeable Tem∣perament of Justice with Reason, being impower'd to reverse the Sentences of Subordinate Judges, who are ty'd to the Letter of the Law; as the Royal Authority is above both. Whence it results, that there are few Law-suits where Arithmetical Justice, that is, the inflexible rigor of the Law is exercis'd; somewhat more, where Geometrical Proportion hath place, because 'tis requisite to use Reasons; which being alwayes the same, cannot be alter'd, as it happens in Harmonical Proportion, in which the point of right (which is indivisible in it self) being variously balanc'd between Law and Equity, and drawn from each side according to the interest of the parties, the Decisions of some Cases cannot be wholly suted to others, by reason of the diversity of circumstances. But as Diametrical Proportions having no connexion of their quantities together, though they quiet pri∣vate Contests, yet they cause a dangerous reflux into the body

of the State, by the indignation of the Nobles against the Com∣monalty, and the People's Envy against the Nobility; so Har∣monical Proportion, such as ours, is much more prejudicial to private persons, which it entertains in Suits, than to the State, wherein it employes turbulent Spirits to discharge their Choler upon paper against their Adversaries. But in Answer to the Question, Why we have more Law-suits now-a-days than formerly, I believe the Reason is, because the common-people have got too much Knowledg of the Laws and Statutes, and Legal Pleadings; for whilst these remain'd in Latin and were not understood, Men were not so apt to commence Litigious Suits one against another.