ner we have a controversy with those writers of the small boroughs, especially the burgage who insist upon representation as a natural tenure, contributes, though undesignedly, to right: we consider it so far only as a right the same effect: for the appointment of the at all, as it conduces to public utility; that is, representatives we find commonly annexed to as it contributes to the establishment of good certain great inheritances. Elections purely laws, or as it secures to the people the just ad- popular are in this respect uncertain: in times ministration of these laws. These effects de- of tranquillity, the natural ascendancy of wealth pend upon the disposition and abilities of the will prevail; but when the minds of men are national counsellors. Wherefore, if men the inflamed by political dissensions, this influence most likely by their qualifications to know and often yields to more impetuous motives.-The to promote the public interest, be actually re-variety of tenures and qualifications, upon turned to parliament, it signifies little who re- which the right of voting is founded, appears turn them. If the properest persons be elected, to me a recommendation of the mode which what matters it by whom they are elected? now subsists, as it tends to introduce into parAt least, no prudent statesman would subvert liament a corresponding mixture of characters long-established or even settled rules of repre- and professions. It has been long observed sentation, without a prospect of procuring that conspicuous abilities are most frequently wiser or better representatives. This then be found with the representatives of small boing well observed, let us, before we seek to roughs. And this is nothing more than what obtain any thing more, consider duly what we the laws of human conduct might teach us to already have. We have a House of Commons expect: when such boroughs are set to sale, composed of five hundred and fifty-eight mem- those men are likely to become purchasers, bers, in which number are found the most who are enabled by their talents to make the considerable landholders and merchants of the best of their bargain: when a seat is not sold, kingdom; the heads of the army, the navy, but given by the opulent proprietor of a burand the law; the occupiers of great offices in gage tenure, the patron finds his own interest the state; together with many private indi- consulted, by the reputation and abilities of viduals, eminent by their knowledge, elo- the member whom he nominates. If certain quence, or activity. Now if the country be not of the nobility hold the appointment of some safe in such hands, in whose may it confide part of the House of Commons, it serves to its interests? If such a number of such men maintain that alliance between the two branches be liable to the influence of corrupt motives, of the legislature which no good citizen would what assembly of men will be secure from the wish to see dissevered: it helps to keep the same danger? Does any new scheme of re- government of the country in the House of presentation promise to collect together more Commons, in which it would not perhaps long wisdom, or to produce firmer integrity? In continue to reside, if so powerful and wealthy this view of the subject, and attending not to a part of the nation as the peerage compose, ideas of order and proportion (of which many were excluded from all share and interest in minds are much enamoured,) but to effects its constitution. If there be a few boroughs alone, we may discover just excuses for those so circumstanced as to lie at the disposal of parts of the present representation which ap- the crown, whilst the number of such is known pear to a hasty observer most exceptionable and and small, they may be tolerated with litt.e absurd. It should be remembered, as a maxim danger. For where would be the impropriety extremely applicable to this subject, that no or the inconveniency, if the king at once order or assembly of men whatever can long should nominate a limited number of his sermaintain their place and authority in a mixed vants to seats in parliament; or, what is the government, of which the members do not in- same thing, if seats in parliament were annexed dividually possess a respectable share of per- to the possession of certain of the most efficient sonal importance. Now whatever may be the and responsible offices in the state? The predefects of the present arrangement, it infalli- sent representation, after all these deductions, bly secures a great weight of property to the and under the confusion in which it confessHouse of Commons, by rendering many seats edly lies, is still in such a degree popular, or in that house accessible to men of large for- rather the representatives are so connected tunes, and to such men alone. By which with the mass of the community by a society means those characters are engaged in the de- of interests and passions, that the will of the fence of the separate rights and interests of this people, when it is determined, permanent, and branch of the legislature, that are best able to general, almost always at length prevails. support its claims. The constitution of most

If this right be natural, no doubt it must be equal; and the right, we may add, of one sex, as well as of the other. Whereas every plan of representation that we have heard of, begins by excluding the votes of women; thus cutting off, at a single stroke, one half of the public from a right which is asserted to be inherent in all; a right too, as some represent it, not only universal, but unalienable, and indefeasible, and imprescriptible.

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, | selves the whole government of the state: or may be expected from these projects, namely, at least, so to obstruct the conduct of public "less flexibility to the influence of the crown. "affairs, by a wanton and perverse opposition, And since the diminution of this influence is as to render it impossible for the wisest statesthe declared and perhaps the sole design of the man to carry forwards the business of the navarious schemes that have been produced, whe- tion with success or satisfaction. ther 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 dona tion of the king.

Some passages of our national history afford grounds for these apprehensions.--Before the accession of James the First, or, at least, dur. ing 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 success ful expedient of influence. Now we remember what passed between the loss of terror, and the

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 go. vernment 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 interferes with its own. To this cause, excited perhaps by some unseasonable provocations, we may attribute, as to their true and proper original, (we will not say the misfortunes, but) the changes that have taken place in the British empire. The admonition which such examples suggest, will have its weight with those who are content with the general frame of the English constitution; and who consider stability amongst the first perfections of any government.

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: whe-establishment of influence. The transactions ther the influence so loudly complained of, can be destroyed, or even much diminished, without danger to 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 willing- We protest, however, against any construcness to question and thwart whatever is dictat tion by which what is here said shall be ated or even proposed by another; a disposition tempted to be applied to the justification of common to all bodies of men, to extend the bribery, or of any clandestine reward or solicitclaims and authority of their orders; above all, ation whatever. The very secrecy of such nethat love of power, and of showing it, whichgotiations confesses or begets a consciousness resides more or less in every human breast, and of guilt; which when the mind is once taught which, in popular assemblies, is inflamed, like to endure without uneasiness, the character is every other passion, by communication and en- prepared for every compliance: and there is couragement: these motives, added to private the greater danger in these corrupt practices, designs and resentments, cherished also by po- as the extent of their operation is unlimited pular acclamation, and operating upon the and unknown. Our apology relates solely to great share of power already possessed by the that influence, which results from the acceptHouse of Commons, might induce a majority, ance or expectation of public preferments. Nor or, at least a large party of men in that assem- does the influence, which we defend, require bly, to unite in endeavouring to draw to them-i any sacrifice of personal probity. In political,

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 affect whom they will.

above all other subjects, the arguments, or ra- nual grants of money to the support of the nether the conjectures on each side of the ques-cessary functions of government ;-when we tion, are often so equally poised, that the wisest reflect also what motives there are, which, in judgments may be held in suspense: these I the vicissitudes of political interests and pascall subjects of indifference. But again; when sions, may one day arm and point this power the subject is not indifferent in itself, it will ap-against the executive magistrate; when we atpear such to a great part of those to whom it is tend to these considerations, we shall be led proposed, for want of information, or reflection, perhaps to acknowledge, that there is not more or experience, or of capacity to collect and of paradox than of truth in that important, weigh the reasons by which either side is sup-but much-decried apopthegm, "that an inported. These are subjects of apparent indif-dependent parliament is incompatible with the ference. This indifference occurs still more existence of the monarchy." frequently in personal contests; in 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 influence: 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 be admitted. If you remove the influence of the crown, it is only to make way for influence from a different quarter. If motives of expectation and gratitude be withdrawn, other motives will succeed in their place, acting probably in an opposite direction, but equally irrelative and external to the proper merits of the question. There exist, as we have seen, passions in the human heart, which will always make a strong party against the executive power of a mixed government. According as the disposition of parliament is friendly or adverse to the recommendation of the crown in matters which are really or apparently indifferFor the sake of illustration, let it be supposent, as indifference hath been now explained, ed, in this country, either that, parliaments the business of the empire will be transacted being laid aside, the courts of Westminsterwith ease and convenience, or embarrassed with Hall made their own laws; or that the two endless contention and difficulty. Nor is it a houses of parliament, with the King at their conclusion founded in justice, or warranted by head, tried and decided causes at their bar: it experience, that because men are induced by is evident, in the first place, that the decisions views of interest to yield their consent to of such a judicature would be so many laws; measures concerning which their judgment de- and in the second place, that, when the parcides nothing, they may be brought by the ties and the interests to be affected by the law same influence to act in deliberate opposition to were known, the inclinations of the law-maknowledge and duty. Whoever reviews the kers would inevitably attach to one side or the operations of government in this country since other; and that where there were neither any the Revolution, will find few even of the most fixed rules to regulate their determinations, questionable measures of administration, about nor any superior power to control their prowhich the best-instructed judgment might not ceedings, these inclinations would interfere nave doubted at the time; but of which we with the integrity of public justice. The conmay affirm with certainty, they were indiffer-sequence of which must be, that the subjects ent to the greatest part of those who concurred of such a constitution would live either with. in them. From the success, or the facility, out any constant laws, that is, without any with which they who dealt out the patronage known pre-established rules of adjudication of the crown carried measures like these, ought whatever; or under laws made for particular we to conclude, that a similar application of hon- persons, and partaking of the contradictions ours and emoluments would procure the consent and iniquity of the motives to which they owof parliaments to counsels evidently detrimen-ed their origin. tal to the common welfare? Is there not, on Which dangers, by the division of the legis the contrary, more reason to fear, that the pre- lative and judicial functions, are in this counrogative, if deprived of influence, would not be try effectually provided against. Parliament long able to support itself? For when we re- knows not the individuals upon whom its acts flect upon the power of the House of Commons will operate; it has no cases or parties before to extort a compliance with its resolutions from it; no private designs to serve; consequently, the other parts of the legislature; or to put to its resolutions will be suggested by the consi death the constitution by a refusal of the an-deration of universal effects and tendencies,

which always produces impartial, and common- | and their characters from suspicion ; as well as ly advantageous regulations. When laws are of rendering the office worthy of the ambition made, courts of justice, whatever be the dispo- of men of eminence in their profession. sition of the judges, must abide by them: for A third precaution to be observed in the forthe legislative being necessarily the supreme mation of courts of justice is, that the number power of the state, the judicial and every other of the judges be small. For, beside that the power is accountable to that: and it cannot be violence and tumult inseparable from large asdoubted that the persons who possess the sove-semblies are inconsistent with the patience, mereign authority of government, will be tena- thod, and attention requisite in judicial inves cious of the laws which they themselves pre-tigations; beside that all passions and prejudiscribe, and sufficiently jealous of the assump-ces act with augmented force upon a collected tion of dispensing and legislative power by any multitude; beside these objections, judges, when others. they are numerous, divide the shame of an unThis fundamental rule of civil jurisprudence just determination; they shelter themselves unis violated in the case of acts of attainder order one another's example; each man thinks confiscation, in bills of pains and penalties, and his own character hid in the crowd: for which in all ex post facto laws whatever, in which par- reason, the judges ought always to be so few, liament exercises the double office of legislature as that the conduct of each may be conspicuous and judge. And whoever either understands to public observation; that each may be responthe value of the rule itself, or collects the his-sible in his separate and particular reputation tory of those instances in which it has been invaded, will be induced, I believe, to acknowledge, that it had been wiser and safer never to have departed from it. He will confess, at least, that nothing but the most manifest and immediate peril of the commonwealth will justify a repetition of these dangerous examples. If the laws in being do not punish an offender, let him go unpunished; let the legislature, admonished 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.

for the decisions in which he concurs. The truth of the above remark has been exemplified in this country, in the effects of that wise regulation which transferred the trial of parliamentary elections from the House of Commons at large to a select committee of that House, composed of thirteen members. This alteration, simply by reducing the number of the judges, and, in consequence of that reduction, exposing the judicial conduct of each to public animadversion, has given to a judicature, which had been long swayed by interest and solicitation, the solemnity and virtue of the most upright tribunals.—I should prefer an even to an odd number of judges, and four to almost any other number: for in this number, beside that it sufficiently consults the idea of separate respon

rity of three to one: and when we consider that every decision establishes a perpetual precedent, 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.

The next security for the impartial admi-sibility, nothing can be decided but by a majonistration 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 removable 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,

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 bystanders, 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 ju risdiction, 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.

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.

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 integriBut, lastly, if several courts co-ordinate to ty of a casual judicature; and avoids, in a and independent of each other, subsist together great measure, the inconveniencies of both. in the country, it seems necessary that the ap- The judge imparts to the jury the benefit of peals from all of them should meet and termi- his erudition and experience; the jury, by nate in the same judicature; in order that one their disinterestedness, check any corrupt parsupreme tribunal, by whose final sentence all tialities which previous application may have others are bound and concluded, may superin-produced in the judge. If the determination tend and preside over the rest. This consti- were left to the judge, the party might suffer tution is necessary for two purposes :-to pre- under the superior interest of his adversary: serve an uniformity in the decisions of inferi- if it were left to an uninstructed jury, his or 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 the determination in In proportion to the acknowledged exceleach be ultimate and irreversible. A common lency of this mode of trial, every deviation appellant jurisdiction, prevents or puts an end from it ought to be watched with vigilance, to this confusion. For when the judgments and admitted by the legislature with caution upon appeals are consistent (which may be ex- and reluctance. Summary convictions before pected, whilst it is the same court which is at justices of the peace, especially for offences last resorted to,) the different courts, from against the game laws; courts of conscience; which the appeals are brought, will be redu-extending the jurisdiction of courts of equity; ced to a like consistency with one another. urging too far the distinction between quesMoreover, if questions arise between courts in- tions of law and matters of fact ;-are all so dependent of each other, concerning the ex- many infringements upon this great charter of tent and boundaries of their respective juris-public safety. diction, as each will be desirous of enlarging Nevertheless, the trial by jury is sometimes its own, an authority which both acknowledge found inadequate to the administration of can alone adjust the controversy. Such a pow- equal justice. This imperfection takes place er, therefore, must reside somewhere, lest the chiefly in disputes in which some popular pasrights and repose of the country be distracted sion or prejudice intervenes; as where a par by the endless opposition and mutual encroach- ticular order of men advance claims upon the ments of its courts of justice. rest of the community, which is the case of There are two kinds of judicature; the one the clergy contending for tithes ; or where an where the office of the judge is permanent in order of men are obnoxious by their profesthe same person, and consequently where the sion, as are officers of the revenue, bailiffs, judge is appointed and known long before the bailiffs' followers, and other low ministers of trial; the other, where the judge is determin- the law; or where one of the parties has an ed by lot at the time of the trial, and for that interest in common with the general interest turn only. The one may be called a fixed, the of the jurors, and that of the other is opposed other a casual judicature. From the former to it, as in contests between landlords and may be expected those qualifications which are tenants, between lords of manors and the preferred and sought for in the choice of judges, holders of estates under them; or, lastly, and that knowledge and readiness which re- where the minds of men are inflamed by posult from experience in the office. But then, litical dissensions or religious hatred. These as the judge is known beforehand, he is ac- prejudices act most powerfully upon the comcessible to the parties; there exists a possibi- mon people; of which order juries are made lity of secret management and undue prac up. The force and danger of them are also tices; or, in contests between the crown and increased by the very circumstance of taking the subject, the judge appointed by the crown juries out of the county in which the subject may be suspected of partiality to his patron, of dispute arises. In the neighbourhood of or of entertaining inclinations favourable to the parties, the cause is often prejudged: and the authority from which he derives his own. these secret decisions of the mind proceed comThe advantage attending the second kind of monly more upon sentiments of favour or 'udicature, is indifferency; the defect, the hatred,-upon some opinion concerning the want of that legal science which produces uni- sect, family, profession, character, connexions, formity and justice in legal decisions. The or circumstances of the parties,than upon construction of English courts of law, in which any knowledge or discussion of the proper