corresponding mixture of characters and profes-ed, or even much diminished, without danger to sions. It has been long observed that conspicuous abilities are most frequently found with the representatives of small boroughs. And this is nothing more than what the laws of human conduct might teach us to expect: when such boroughs are set to sale, those men are likely to become purchasers, who are enabled by their talents to make the best of their bargain: when a seat is not sold, but given by the opulent proprietor of a burgage tenure, the patron finds his own interest consulted, by the reputation and abilities of the member whom he nominates. If certain of the nobility hold the appointment of some part of the House of Commons, it serves to maintain that alliance between the two branches of the legislature which no good citizen would wish to see dissevered: it helps to keep the government of the country in the House of Commons, in which it would not perhaps long continue to reside, if so powerful and wealthy a part of the nation as the peerage compose, were excluded from all share and interest in its constitution. If there be a few boroughs so circumstanced as to lie at the disposal of the crown, whilst the number of such is known and small, they may be tolerated with little danger. For where would be the impropriety or the inconveniency, if the king at once should nominate a limited number of his servants to seats in parliament; or, what is the same thing, if seats in parliament were annexed to the possession of certain of the most efficient and responsible offices in the state? The present representation, after all these deductions, and under the confusion in which it confessedly lies, is still in such a degree popular, or rather the representatives are so connected with the mass of the community by a society of interests and passions, that the will of the people, when it is determined, permanent and general, almost always at length prevails.

Upon the whole, in the several plans which have been suggested, of an equal or a reformed representation, it will be difficult to discover any proposal that has a tendency to throw more of the business of the nation into the House of Commons, or to collect a set of men more fit to transact that business, or in general more interested in the national happiness and prosperity. One consequence, however, may be expected from these projects, namely, "less flexibility to the infiuence of the crown." And since the diminution of this influence is the declared and perhaps the sole design of the various schemes that have been produced, whether for regulating the elections, contracting the duration, or for purifying the constitution of parliament by the exclusion of placemen and pensioners; it is obvious to remark, that the more apt and natural, as well as the more safe and quiet way of attaining the same end, would be by a direct reduction of the patronage of the crown, which might be effected to a certain extent without hazarding further consequences. Superfluous and exorbitant emoluments of office may not only be suppressed for the present; but provisions of law 'be devised, which should for the future restrain within certain limits the number and value of the offices in the donation of the king. But whilst we dispute concerning different schemes of reformation, all directed to the same end, a previous doubt occurs in the debate, whether the end itself be good or safe: whether the influence so loudly complained of, can be destroy

the state. Whilst the zeal of some men beholds this influence with a jealousy which nothing but its entire abolition can appease, many wise and virtuous politicians deem a considerable portion of it to be as necessary a part of the British constitution, as any other ingredient in the composition; to be that, indeed, which gives cohesion and solidity to the whole. Were the measures of government, say they, opposed from nothing but principle, government ought to have nothing but the rectitude of its measures to support them: but since opposition springs from other motives, government must possess an influence to counteract these motives; to produce, not a bias of the passions, but a neutrality;-it must have some weight to cast into the scale, to set the balance even. It is the nature of power, always to press upon the boundaries which confine it. Licentiousness, faction, envy, impatience of control or inferiority; the secret pleasure of mortifying the great, or the hope of dispossessing them, a constant willingness to question and thwart whatever is dictated or even proposed by another; a disposition common to all bodies of men, to extend the claims and authority of their orders; above all, that love of power, and of showing it, which resides more or less in every human breast, and which, in popular assemblies, is inflamed, like every other passion, by communication and encouragement: these motives, added to private designs and resentments, cherished also by popular acclamation, and operating upon the great share of power already possessed by the House of Commons, might induce a majority, or, at least a large party of men in that assembly, to unite in endeavouring to draw to themselves the whole government of the state: or, at least, so to obstruct the conduct of public affairs, by a wanton and perverse opposition, as to render it impossible for the wisest statesman to carry forwards the business of the nation with success or satisfaction.

Some passages of our national history afford grounds for these apprehensions.--Before the accession of James the First, or, at least, during the reigns of his three immediate predecessors, the government of England was a government by force; that is, the king carried his measures in parliament by intimidation. A sense of personal danger kept the members of the House of Commons in subjection. A conjunction of fortunate causes delivered, at last, the parliament and nation from slavery. That overbearing system which had declined in the hands of James, expired early in the reign of his son. After the Restoration, there succeeded in its place, and, since the Revolution, has been methodically pursued, the more successful expedient of influence. Now we remember what passed between the loss of terror, and the establishment of influence. The transactions of that interval, whatever we may think of their occasion or effect, no friend of regal government would wish to see revived.-But the affairs of this kingdom afford a more recent attestation to the same doctrine. In the British colonies of North America, the late assemblies possessed much of the power and constitution of our House of Commons. The king and government of Great Britain held no patronage in the country, which could create attachment and influence sufficient to counteract that restless arrogating spirit, which, in popular assemblies, when left to itself,

will never brook an authority that checks and in- we may affirm with certainty, they were indifferterferes with its own. To this cause, excited per-ent to the greatest part of those who concurred haps by some unseasonable provocations, we may in them. From the success, or the facility, with as to their true and proper original, (we which they who dealt out the patronage of the attribute, will not say the misfortunes, but) the changes that crown carried measures like these, ought we to have taken place in the British empire. The ad- conclude, that a similar application of honours monition which such examples suggest, will have and emoluments would procure the consent of its weight with those who are content with the parliaments to counsels evidently detrimental to Leral frame of the English constitution; and the common welfare? Is there not, on the cono consider stability amongst the first perfections of any government.

gits a Brad is on

once

trary, more reason to fear, that the prerogative, if deprived of influence, would not be long able to supWe protest, however, against any construction port itself? For when we reflect upon the power by which what is here said shall be attempted to of the House of Commons to extort a compliance be applied to the justification of bribery, or of any with its resolution from the other parts of the leclandestine reward or solicitation whatever. The gislature; or to put to death the constitution by a very secrecy of such negotiations confesses or be- refusal of the annual grants of money to the supconsciousness of guilt; which when the port of the necessary functions of government;taught to endure without uneasiness, when we reflect also what motives there are, the greater danger in these corrupt passions, may one day arm and point this power as the extent of their operation is un-against the executive magistrate; when we attend unknown. Our apology relates solely to these considerations, we shall be led perhaps to than of truth in that important, but much decried apothegm, "that an independent parliament is incompatible with the existence of the monarchy."

18

the cher is prepared for every compliance: which, in the vicissitudes of political interests and

and there

practices, limited and

ance or

to that influence, which results from the accept- acknowledge, that there is not more of paradox

be admitted.

CHAPTER VIII.

Of the Administration of Justice. THE first maxim of a free state is, that the laws be made by one set of men, and administered by another; in other words, that the legislative and judicial characters be kept separate. When these offices are united in the same person or assembly, particular laws are made for particular cases, springing oftentimes from partial motives, and directed to private ends: whilst they are kept separate, general laws are made by one body of men, without foreseeing whom they may affect; and, when made, must be applied by the other, let them

expectation of public preferments. Nor does the minence, which we defend, require any sacrifice of personal probity. In political, above all other subjects, the arguments or rather the each side of the question, are conjectures on often so equally poised, that the wisest judgments may be held in- suspense: these I call subjects of But again; when the subject is indifference. not indiffererat in itself, it will appear such to a great part of those to whom it is proposed, for want et information, or reflection, or experience, or of capacity to collect and weigh the reasons by which These are subjects of either side is supported. apparent in ifference. This indifference occurs frequently in personal contests; in still more which we do not often discover any reason of public utility for the preference of one competitor to another. These cases compose the province of intiuence: that is, the decision in these cases will inevitably be determined by influence of some sort or other. The only doubt is, what influence shall affect whom they will." For the sake of illustration, let it be supposed, If you remove the influence of the crown, it is only to make way for influence from in this country, either that, parliaments being laid a different quarter. If motives of expectation and aside, the courts of Westminster-Hall made their own laws; or that the two houses of parliament, gratitude be withdrawn, other motives will succeed in their place, acting probably in an opposite with the King at their head, tried and decided causes at their bar: it is evident, in the first place, direction, but equally irrelative and external to the proper merits of the question. There exist, that the decisions of such a judicature would be so as we have seen, passions in the human heart, many laws; and in the second place, that, when which will always make a strong party against the parties and the interests to be affected by the the executive power of a mixed government. Ac-law were known, the inclinations of the law-macording as the disposition of parliament is friendly kers would inevitably attach to one side or the or adverse to the recommendation of the crown in other; and that where there were neither any fixmatters which really or apparently indifferent, ed rules to regulate their determinations, nor any indifference hath been now explained, the bu-superior power to control their proceedings, these siness of the empire will be transacted with ease inclinations would interfere with the integrity of and convenience, or embarrassed with endless public justice. The consequence of which must contention and difficulty. Nor is it a conclusion be, that the subjects of such a constitution would founded in justice, or warranted by experience, live either without any constant laws, that is, withthat because men are induced by views of interest out any known pre-established rules of adjudicato yield their consent to measures concerning tion whatever; or under laws made for particular which their judgment decides nothing, they may persons, and partaking of the contradictions and be brought by the same influence to act in deli- iniquity of the motives to which they owed their berate opposition to knowledge and duty. Who- origin. Which dangers, by the division of the legisla ever reviews the operations of government in this Country since the Revolution, will find few even tive and judicial functions, are in this country efof the most questionable measures of administra- fectually provided against. Parliament knows not tion about which the best-instructed judgment the individuals upon whom its acts will operate; might not have doubted at the time; but of which it has no cases or parties before it; no private de

are

Ꭱ

signs to serve consequently, its resolutions will all passions and prejudices act with augmented be suggested by the consideration of universal ef- force upon a collected multitude; beside these obfects and tendencies, which always produces im-jections, judges, when they are numerous, divide partial, and commonly advantageous regulations. When laws are made, courts of justice, whatever be the disposition of the judges, must abide by them for the legislative being necessarily the supreme power of the state, the judicial and every other power is accountable to that; and it cannot be doubted that the persons who possess the sovereign authority of government, will be tenacious of the laws which they themselves prescribe, and sufficiently jealous of the assumption of dispensing and legislative power by any others.

The

the shame of an unjust determination; they shelter themselves under one another's example; each man thinks his own character hid in the crowd: for which reason, the judges ought always to be so few, as that the conduct of each may be conspicuous to public observation; that each may be responsible in his separate and particular reputation for the decisions in which he concurs. truth of the above remark has been exemplified in this country, in the effects of that wise regulation which transferred the trial of parliamentary elecThis fundamental rule of civil jurisprudence is tions from the House of Commons at large to a violated in the case of acts of attainder or confis- select committee of that House, composed of thircation, in bills of pains and penalties, and in all teen members. This alteration, simply by reex post facto laws whatever, in which parliament ducing the number of the judges, and, in conseexercises the double office of legislature and judge. quence of that reduction, exposing the judicial And whoever either understands the value of the conduct of each to public animadversion, has given rule itself, or collects the history of those instances to a judicature, which had been long swayed by in which it has been invaded, will be induced, I interest and solicitation, the solemnity and virtue believe, to acknowledge, that it had been wiser and of the most upright tribunals.-1 should prefer an safer never to have departed from it. He will con- even to an odd number of judges, and four to alfess, at least, that nothing but the most manifest most any other number; for in this number, beside and immediate peril of the commonwealth will that it sufficiently consults the idea of separate rejustify a repetition of these dangerous examples. sponsibility, nothing can be decided but by a maIf the laws in being do not punish an offender, let jority of three to one: and when we consider that him go unpunished; let the legislature, admonish-every decision establishes a perpetual precedent, ed of the defect of the laws, provide against the commission of future crimes of the same sort. The escape of one delinquent can never produce so much harm to the community as may arise from the infraction of a rule upon which the purity of public justice, and the existence of civil liberty, essentially depend.

The next security for the impartial administration of justice, especially in decisions to which government is a party, is the independency of the judges. As protection against every illegal attack upon the rights of the subject by the servants of the crown is to be sought for from these tribunals, the judges of the land become not unfrequently the arbitrators between the king and the people, on which account they ought to be independent of either; or, what is the same thing, equally dependent upon both; that is, if they be appointed by the one, they should be removeable only by the other. This was the policy which dictated that memorable improvement in our constitution, by which the judges, who before the Revolution held their offices during the pleasure of the king, can now be deprived of them only by an address from both houses of parliament; as the most regular, solemn, and authentic way, by which the dissatisfaction of the people can be expressed. To make this independency of the judges complete, the public salaries of their office ought not only to be certain both in amount and continuance, but so liberal as to secure their integrity from the temptation of secret bribes; which liberality will answer also the further purpose of preserving their jurisdiction from contempt, and their characters from suspicion; as well as of rendering the office worthy of the ambition of men of eminence in their profession.

A third precaution to be observed in the formation of courts of justice is, that the number of the judges be small. For, beside that the violence and tumult inseparable from large assemblies are inconsistent with the patience, method, and attention requisite in judicial investigations; beside that

we shall allow that it ought to proceed from an authority, not less than this. If the court be equally divided, nothing is done; things remain as they were; with some inconveniency, indeed, to the parties, but without the danger to the public of a hasty precedent.

A fourth requisite in the constitution of a court of justice, and equivalent to many checks upon the discretion of judges, is, that its proceedings be carried on in public, apertis foribus; not only before a promiscuous concourse of by-standers, but in the audience of the whole profession of the law. The opinion of the bar concerning what passes, will be impartial; and will commonly guide that of the public. The most corrupt judge will fear to indulge his dishonest wishes in the presence of such an assembly: he must encounter, what few can support, the censure of his equals and companions, together with the indignation and reproaches of his country.

Something is also gained to the public by appointing two or three courts of concurrent jurisdiction, that it may remain in the option of the suitor to which he will resort. By this means a tribunal which may happen to be occupied by ignorant or suspected judges, will be deserted for others that possess more of the confidence of the nation.

But, lastly, if several courts co-ordinate to and independent of each other, subsist together in the country, it seems necessary that the appeals from all of them should meet and terminate in the same judicature; in order that one supreme tribunal, by whose final sentence all others are bound and concluded, may superintend and preside over the rest. This constitution is necessary for two purposes :-to preserve an uniformity in the decisions of inferior courts, and to maintain to each the proper limits of its jurisdiction. Without a common superior, different courts might establish contradictory rules of adjudication, and the contradiction be final and without remedy; the same question might receive opposite determinations, according as it was brought before one court or another, and

tice.

the determination in each be ultimate and irreversi- | found inadequate to the administration of equal ble. A common appellant jurisdiction, prevents justice. This imperfection takes place chiefly in or puts an end to this confusion. For when the disputes in which some popular passion or prejujudgments upon appeals are consistent (which dice intervenes; as where a particular order of may be expected, whilst it is the same court men advance claims upon the rest of the commuwhich is at last resorted to,) the different courts, nity, which is the case of the clergy contending from which the appeals are brought, will be re- for tithes; or where an order of men are obnoxduced to a like consistency with one another.ious by their professions, as are officers of the Moreover, if questions arise between courts inde- revenue, bailiffs, baliffs' followers, and other low pendent of each other, concerning the extent and ministers of the law; or where one of the parties boundaries of their respective jurisdiction, as each has an interest in common with the general will be desirous of enlarging its own, an authority interest of the jurors, and that of the other is which both acknowledge can alone adjust the opposed to it, as in contests between landlords controversy. Such a power, therefore, must re- and tenants, between lords of manors and the side somewhere, lest the rights and repose of the holders of estates under them; or, lastly, where country be distracted by the endless opposition the minds of men are inflamed by political disand mutual encroachments of its courts of jus- sensions or religious hatred. These prejudices act most powerfully upon the cominon people; There are two kinds of judicature; the one of which order juries are made up. The force where the office of the judge is permanent in the and danger of them are also increased by the very same person, and consequently where the judge circumstance of taking juries out of the county is appointed and known long before the trial; in which the subject of dispute arises. In the the other, where the judge is determined by lot at neighbourhood of the parties, the cause is often the time of the trial, and for that turn only. The prejudged: and these secret decisions of the mind one may be called a fired, the other a casual judica- proceed commonly more upon sentiments of fature. From the former may be expected those vour or hatred,-upon some opinion concerning the qualifications which are preferred and sought for sect, family, profession, character, connexions, or in the choice of judges, and that knowledge and circumstances of the parties,-than upon any readiness which result from experience in the of knowledge or discussion of the proper merits of fice. But then, as the judge is known beforehand, the question. More exact justice would, in many he is accessible to the parties; there exists a pos- instances, be rendered to the suitors, if the detersibility of secret management and undue practices; mination were left entirely to the judges; provided or, in contests between the crown and the subject, we could depend upon the same purity of conduct, the judge appointed by the crown may be sus-when the power of these magistrates was enlarged, pected of partiality to his patron, or of entertaining inclinations favourable to the authority from which he derives his own. The advantage attending the second kind of judicature, is indifferency; the defect, the want of that legal science which produces uniformity and justice in legal decisions. The construction of English courts of law, in which causes are tried by a jury, with the assistance of a judge, combines the two species with peculiar success. This admirable contrivance unites the wisdom of a fixed with the integrity of a casual judicature; and avoids, in a great measure, the inconveniences of both. The judge imparts to the jury the benefit of his erudition and experience; the jury, by their disinterestedness, check any corrupt partialities which previous application may have produced in the judge. If the determination were left to the judge, the party might suffer under the superior interest of his adversary: if it were left to an uninstructed jury, his rights would be in still greater danger, from the ignorance of those who were to decide upon them. The present wise admixture of chance and choice in the constitution of the court in which his cause is tried, guards him equally against the fear of injury from either of these causes.

which they have long manifested in the exercise of a mixed and restrained authority. But this is an experiment too big with public danger to be hazarded. The effects, however, of some local preju dices, might be safely obviated by a law empowering the court in which the action is brought, to send the cause to trial in a distant county; the expenses attending the change of place always falling upon the party who applied for it.

There is a second division of courts of justice, which presents a new alternative of difficulties. Either one, two, or a few sovereign courts may be erected in the metropolis, for the whole kingdom to resort to; or courts of local jurisdiction may be fixed in various provinces and districts of the empire. Great, though opposite, inconveniences attend each arrangement. If the court be remote and solemn, it becomes, by these very qualities, expensive and dilatory: the expense is unavoidably increased when witnesses, parties, and agents, must be brought to attend from distant parts of the country: and, where the whole judicial business of a large nation is collected into a few superior tribunals, it will be found impossible, even if the prolixity of forms which retards the progress of causes were removed, to give a prompt hearing In proportion to the acknowledged excellency to every complaint, or an immediate answer to of this mode of trial, every deviation from it ought any. On the other hand, if, to remedy these evils, to be watched with vigilance, and admitted by the and to render the administration of justice cheap legislature with caution and reluctance. Šum- and speedy, domestic and summary tribunals be mary convictions before justices of the peace, es-erected in each neighbourhood, the advantage of pecially for offences against the game laws; courts of conscience; extending the jurisdiction of courts of equity; urging too far the distinction between questions of law and matters of fact;-are all so any infringements upon this great charter of public safety.

Nevertheless, the trial by jury is sometimes

such courts will be accompanied with all the dangers of ignorance and partiality, and with the certain mischief of confusion and contrariety in their decisions. The law of England, by its circuit, or itinerary courts, contains a provision for the distribution of private justice, in a great measure relieved from both these objections. As

principle of reasoning, by which he can foretell, or even conjecture, the event of a judicial contest. To remove therefore the grounds of this expectation, by rejecting the force and authority of precedents, is to entail upon the subject the worst property of slavery,-to have no assurance of his rights, or knowledge of his duty. The quiet also of the country, as well as the confidence and satisfaction of each man's mind, requires uniformity in judicial proceedings. Nothing quells a spirit of litigation, like despair of success: therefore nothing so completely puts an end to law-suits, as a rigid adherence to known rules of adjudication. Whilst the event is uncertain, which it ever must be whilst it is uncertain whether former determinations upon the same subject will be followed or not, law-suits will be endless and innumerable: men will commonly engage in them, either from the hope of prevailing in their claims, which the

the presiding magistrate comes into the country a stranger to its prejudices, rivalships, and connexions, 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 magistrate is usually one of the judges of the supreme tribunals of the kingdom, and has passed his life in the study and administration of the laws, he possesses, it may be presumed, those professional qualifications which befit the dignity and importance of his station. Lastly, as both he, and the advocates who accompany him in his circuit, are employed in the business of those superior courts (to which also their proceedings are amenable,) they will naturally conduct themselves by the rules of adjudication which they have applied or learned there; and by this means maintain, what constitutes a principal perfection of civil government, one law of the land in every part and dis-smallest chance is sufficient to encourage; or with trict of the empire.

the design of intimidating their adversary by the Next to the constitution of courts of justice, we terror of a dubious litigation. When justice is are naturally led to consider the maxims which rendered to the parties, only half the business of a ought to guide their proceedings; and, upon this court of justice is done: the more important part subject, the chief inquiry will be, how far, and of its office remains;-to put an end, for the future, for what reasons, it is expedient to adhere to for- to every fear, and quarrel, and expense, upon the mer determinations; or whether it be necessary same point; and so to regulate its proceedings, for judges to attend to any other consideration that not only a doubt once decided may be stirred than the apparent and particular equity of the no more, but that the whole train of law-suits, case before them. Now, although to assert that which issue from one uncertainty, may die with precedents established by one set of judges ought the parent-question. Now this advantage can be to be ineontrovertible by their successors in the attained only by considering each decision as a disame jurisdiction, or by those who exercise a high-rection to succeeding judges. And it should be er, would be to attribute to the sentence of those observed, that every departure from former deterjudges all the authority we ascribe to the most minations, especially if they have been often resolenim acts of the legislature: yet the general se-peated or long submitted to, shakes the stability curity of private rights, and of civil life, requires of all legal title. It is not fixing a point anew that such precedents, especially if they have been it is leaving every thing unfixed. For by the confirmed by repeated adjudications, should not same stretch of power by which the present race be overthrown, without a detection of manifest of judges take upon them to contradict the judgerror, or without some imputation of dishonesty ment of their predecessors, those who try the upon the court by whose judgment the question question next may set aside theirs. was first decided. And this deference to prior decisions is founded upon two reasons: first, that the discretion of judges may be bound down by positive rules; and secondly, that the subject, upon every occasion in which his legal interest is concerned, may know beforehand how to act, and what to expect. To set judges free from any obli-"That uniformity is of more importance than gation to conform themselves to the decisions of equity, in proportion as a general uncertainty their predecessors, would be to lay open a latitude would be a greater evil than particular injustice." of judging with which no description of men can The second is attended with no greater inconve safely be intrusted; it would be to allow space for niency than that of erecting the practice of the the exercise of those concealed partialities, which, law into a separate profession; which this reason, since they cannot by any human policy be exclud- we allow, makes necessary: for if we attribute so ed, ought to be confined by boundaries and land- much authority to precedents, it is expedient that marks. It is in vain to allege, that the superin- they be known, in every cause, both to the advotendency of parliament is always at hand to con-cates and to the judge: this knowledge cannot be trol and punish abuses of judicial discretion. By general, since it is the fruit oftentimes of laborious what rules can parliament proceed? How shall research, or demands a memory stored with longthey pronounce a decision to be wrong, where collected erudition. there exists no acknowledged measure or standard of what is right; which, in a multitude of instances, would be the case, if prior determinations were no longer to be appealed to?

Diminishing the danger of partiality, is one thing gained by adhering to precedents; but not the principal thing. The subject of every system of laws must expect that decision in his own case, which he knows that others have received in cases similar to his. If he expect not this, he can expect nothing. There exists no other rule or

From an adherence however to precedents, by which so much is gained to the public, two consequences arise which are often lamented; the hardship of particular determinations, and the intricacy of the law as a science. To the first of these complaints, we must apply this reflection :

To a mind revolving upon the subject of human jurisprudence, there frequently occurs this question:-Why, since the maxims of natural justice are few and evident, do there arise so many doubts and controversies in their application? Or, in other words, how comes it to pass, that although the principles of the law of nature be simple, and for the most part sufficiently obvious, there should