163

venience must ensue of its thus becoming independent, but also that worst of evils, the suppression of the sole circumstance that can well identify this part of the nation with the whole, which is, a common subjection to the rules which they themselves prescribe. The legislative body, which could not, without ruin to itself, establish, openly and by direct laws, distinctions in favour of its members, would introduce them by its judgments: and the people, in electing representatives, would give themselves masters.

The judicial power ought therefore absolutely to reside in a subordinate and dependent body,-dependent, not in its particular acts, with regard to which it ought to be a sanctuary, but in its rules and in its forms, which the legislative authority must prescribe. How is this body to be composed? In this respect farther precautions must be taken.

In a state where the prince is absolute master, numerous bodies of judges are most convenient; inasmuch as they restrain, in a considerable degree, that respect of persons which is one inevitable attendant on that mode of government. Besides, those bodies, whatever their outward privileges may be, being at bottom in a state of great weakness, have no other means of acquiring the respect of the people than their integrity, and their constancy in observing certain rules and forms: nay, these circumstances united, in some degree overawe the sovereign himself, and discourage the thoughts he might entertain of making them the tools of his caprices (c).

(c) The above observations are in a great measure meant to allude to the old French Parlemens, and particularly that of Paris,

But in an effectually limited monarchy, that is, where the prince is understood to be, and in fact is, subject to the laws, numerous bodies of judicature would be re- 164 pugnant to the spirit of the constitution, which requires that all powers in the state should be as much confined as the end of their institution can allow; not to add, that, in the vicissitudes incident to such a state, they might exert a very dangerous influence.

Besides, that awe which is naturally inspired by such bodies, and is so useful when it is necessary to strengthen the feebleness of the laws, would not only be superfluous in a state where the whole power of the nation is on their side, but would moreover have the mischievous tendency to introduce another sort of fear than that which men must be taught to entertain. Those mighty tribunals, I am willing to suppose, would preserve, in all situations of affairs, that integrity which distinguishes them in states of a different constitution; they would

which formed such a considerable body as to have been once summoned as a fourth order to the general estates of the kingdom The weight of that body, increased by the circumstance of the members holding their places for life, was in general attended with the advantage of placing them above being overawed by private individuals in the administration either of civil or criminal justice; it even rendered them so difficult to be managed by the court, that the ministers were at times obliged to appoint particular judges, or commissaries, to try such men as they resolved to ruin.

These, however, were only local advantages, connected with the nature of the French government in those times, which was an uncontrolled monarchy, with considerable remains of aristocracy. But, in a free state, such a powerful body of men, invested with the power of deciding on the life, honour, and property of the citizens, would be productive of very dangerous political consequences; and the more so, if such judges had the power of deciding upon the matter of law and the matter of fact.

never inquire after the influence, still less the political 165 sentiments, of those whose fate they were called to decide; but these advantages not being founded in the necessity of things, and the power of such judges seeming to exempt them from being so very virtuous, men would be in danger of taking up the fatal opinion, that the simple exact observance of the laws is not the only task of prudence: the citizen called upon to defend, in the sphere where fortune has placed him, his own rights, and those of the nation itself, would dread the consequence of even a lawful conduct, and, though encouraged by the law, might desert himself when he came to behold its ministers.

In the assembly of those who sit as his judges, the citizen might possibly descry no enemies; but neither would he see any man whom a similarity of circumstances might engage to take a concern in his fate and their rank, especially when joined with their numbers, would appear to him to lift them above that which overawes injustice, where the law has been unable to secure any other check,-I mean, the reproaches of the public.

The security of the individual, and the consciousness of that security, being then equally essential to the enjoyment of liberty, and necessary for the preservation of it, these two points must never be left out of sight in the establishment of a judicial power; and I conceive that they necessarily lead to the following maxims.

168 In the first place, I shall remind the reader of what has been laid down above (1), that the judicial authority ought never to reside in an independent body; still less

(1) See P. 196.

in him who is already the trustee of the executive

power.

Secondly, the party accused ought to be provided with every possible means of defence. Above all things, the whole proceedings ought to be public. The courts, and their different forms, must be such as to inspire respect, but never terror; and the cases ought to be so accurately ascertained, the limits so clearly marked, as that neither the executive power, nor the judges, may ever hope to transgress them with impunity.

In fine, since we must absolutely pay a price for the advantage of living in society, not only by relinquishing some share of our natural liberty, (a surrender which, in a wisely-framed government, a wise man will make without reluctance), but also by resigning part of even our personal security: in a word, since all judicial power is an evil, though a necessary one, no care should be omitted to reduce, as far as possible, the dangers of it.

As there is, however, a period at which the prudence of man must stop, at which the safety of the individual must be given up, and the law is to resign him to the judgment of a few persons, that is, (to speak plainly), to 169 a decision in some sense arbitrary, it is necessary that this law should narrow, as far as possible, this sphere of peril, and so order matters, that when the subject shall happen to be summoned to the decision of his fate by the fallible conscience of a few of his fellow-creatures, he may always find in them advocates, and never adversaries.

CHAPTER XIII.

The Subject continued.

EVERY one now will admit that our criminal law has been administered with unnecessary severity, and that society may be equally well protected under its present more merciful administration. Eight new acts of the legislature have recently come into operation. The punishment of death has been abolished in all cases, except murder; treason; piracy, when murder is attempted; setting fire to a dwelling-house, any person being therein; destroying ships, with intent to murder, or whereby life may be endangered; exhibiting false lights to bring ships into danger; robbery, attended with cutting and wounding; burglary, attended with violence; rape; administering poison; or stabbing, cutting, or wounding, with intent to murder.

The end of punishment is to deter men from offending (1). This was practically illustrated by the late Mr. Justice Buller, who, on sentencing a man to death for horse-stealing, and the criminal complained of the severity of the law, observed to him-"You are to be hanged, not because you have stolen a horse, but that horses may not be stolen." The punishment was too severe for the purpose to be attained. Mankind, says

(1) Blackstone.