corresponding mixture of characters and profes- | ed, or even much diminished, without danger to sions. It has been long observed that conspicuous the state. Whilst the zeal of some men beholds abilities are most frequently found with the re- this influence with a jealousy which nothing but presentatives of small boroughs. And this is no- its entire abolition can appease, many wise and thing more than what the laws of human conduct virtuous politicians deem a considerable portion of might teach us to expect: when such boroughs it to be as necessary a part of the British constiare set to sale, those men are likely to become pur-tution, as any other ingredient in the composition; chasers, who are enabled by their talents to make to be that, indeed, which gives cohesion and sothe best of their bargain: when a seat is not sold, but lidity to the whole. Were the measures of gogiven by the opulent proprietor of a burgage tenure, vernment, say they, opposed from nothing but the patron finds his own interest consulted, by principle, government ought to have nothing but the reputation and abilities of the member whom the rectitude of its measures to support them: he nominates. If certain of the nobility hold the but since opposition springs from other motives, appointment of some part of the House of Com-government must possess an influence to countermons, it serves to maintain that alliance between act these motives; to produce, not a bias of the the two branches of the legislature which no good passions, but a neutrality;-it must have some citizen would wish to see dissevered: it helps to weight to cast into the scale, to set the balance keep the government of the country in the House even. It is the nature of power, always to press of Commons, in which it would not perhaps long upon the boundaries which confine it. Licencontinue to reside, if so powerful and wealthy a tiousness, faction, envy, impatience of control or part of the nation as the peerage compose, were inferiority; the secret pleasure of mortifying the excluded from all share and interest in its con- great, or the hope of dispossessing them, a constitution. If there be a few boroughs so circum-stant willingness to question and thwart whatever stanced 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 influence 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 he 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

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 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.

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.

This fundamental rule of civil jurisprudence is violated in the case of acts of attainder or confiscation, in bills of pains and penalties, and in all ex post facto laws whatever, in which parliament exercises the double office of legislature and judge. And whoever either understands the value of the rule itself, or collects the history 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.

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. 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.-1 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 responsibility, nothing can be decided but by a majority 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 lone; 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 he 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.

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 Something is also gained to the public by apwhich the judges, who before the Revolution held pointing two or three courts of concurrent jurisdictheir offices during the pleasure of the king, can tion, that it may remain in the option of the suitor now be deprived of them only by an address from to which he will resort. By this means a tribuboth houses of parliament; as the most regular, nal which may happen to be occupied by ignorant solemn, and authentic way, by which the dissatis-or suspected judges, will be deserted for others faction of the people can be expressed. To make this independency of the judges complete, the But, lastly, if several courts co-ordinate to and public salaries of their office ought not only to be independent of each other, subsist together in the certain both in amount and continuance, but so country, it seems necessary that the appeals from liberal as to secure their integrity from the tempta- all of them should meet and terminate in the same tion of secret bribes; which liberality will answer judicature; in order that one supreme tribunal, by also the further purpose of preserving their juris-whose final sentence all others are bound and diction 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

that possess more of the confidence of the nation.

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

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 tice. act most powerfully upon the common 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 which they have long manifested in the exercise of inclinations favourable to the authority from which a mixed and restrained authority. But this is an he derives his own. The advantage attending experiment too big with public danger to be hazthe second kind of judicature, is indifferency; the arded. The effects, however, of some local prejudefect, the want of that legal science which pro- dices, might be safely obviated by a law empowduces uniformity and justice in legal decisions.ering the court in which the action is brought, to 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.

In proportion to the acknowledged excellency of this mode of trial, every deviation from it ought to be watched with vigilance, and admitted by the legislature with caution and reluctance. Summary convictions before justices of the peace, especially 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 many infringements upon this great charter of public safety.

Nevertheless, the trial by jury is sometimes

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 to every complaint, or an immediate answer to any. On the other hand, if, to remedy these evils, and to render the administration of justice cheap and speedy, domestic and summary tribunals be erected in cach neighbourhood, the advantage of 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

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 district of the empire.

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 smallest chance is sufficient to encourage; or with 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 incontrovertible 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 resolemn 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 that such precedents, especially if they have been confirmed by repeated adjudications, should not be overthrown, without a detection of manifest error, or without some imputation of dishonesty upon the court by whose judgment the question was first decided. And this deference to prior From an adherence however to precedents, by decisions is founded upon two reasons: first, that which so much is gained to the public, two conthe discretion of judges may be bound down by sequences arise which are often lamented; the positive rules; and secondly, that the subject, up- hardship of particular determinations, and the inon every occasion in which his legal interest is tricacy of the law as a science. To the first of concerned, may know beforehand how to act, and these complaints, we must apply this reflection :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 inconvesafely 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

of all legal title. It is not fixing a point anew, it is leaving every thing unfixed. For by the same stretch of power by which the present race of judges take upon them to contradict the judgment of their predecessors, those who try the question next may set aside theirs.

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