to those of the public, as to justify a departure a right at all, as it conduces to public utility; that from that wholesome policy, by which the laws of is, as it contributes to the establishment of good a commercial state punish and stigmatize insol- laws, or as it secures to the people the just advency. But, whatever reason may be pleaded for ministration of these laws. These effects depend their personal immunity, when this privilege of upon the disposition and abilities of the national parliament is extended to domestics and retainers, counsellors. Wherefore, if men the most likely or when it is permitted to impede or delay the by their qualifications to know and to promote the course of judicial proceedings, it becomes an ab- public interest, be actually returned to parliament, surd sacrifice of equal justice to imaginary dignity. it signifies little who return them. If the properThere is nothing in the British constitution so est persons be elected, what matters it by whom remarkable, as the irregularity of the popular re- they are elected? At least, no prudent statesman presentation. The House of Commons consists would subvert long-established or even settled of five hundred and fifty-eight members, of whom rules of representation, without a prospect of protwo hundred are elected by seven thousand con- curing wiser or better representatives. This then stituents; so that a majority of these seven thou- | being well observed, let us, before we seek to obsand, without any reasonable title to superior tain any thing more, consider duly what we alweight or influence in the state, may, under cer- ready have. We have a House of Commons tain circumstances, decide a question against the composed of five hundred and fifty-eight memopinion of as many millions. Or, to place the bers, in which number are found the most same object in another point of view: If my estate considerable landholders and merchants of the be situated in one county of the kingdom, I pos- kingdom; the heads of the army, the navy, and sess the ten-thousandth part of a single represen- the law; the occupiers of great offices in the state; tative; if in another, the thousandth; if in a par- together with many private individuals, eminent ticular district, I may be one in twenty who choose by their knowledge, eloquence, or activity. Now two representatives; if in a still more favoured if the country be not safe in such hands, in whose spot, I may enjoy the right of appointing two may it confide its interests? If such a number of myself. If I have been born, or dwell, or have such men be liable to the influence of corrupt moserved an apprenticeship, in one town, I am re- tives, what assembly of men will be secure from presented in the national assembly by two depu- the same danger? Does any new scheme of reties, in the choice of whom I exercise an actual presentation promise to collect together more and sensible share of power; if accident has wisdom, or to produce firmer integrity? In this thrown my birth, or habitation, or service, into view of the subject, and attending not to ideas of another town, I have no representative at all, nor order and proportion (of which many minds are more power or concern in the election of those much enamoured,) but to effects alone, we may who make the laws by which I am governed, than discover just excuses for those parts of the present if I was a subject of the Grand Signior: and this representation which appear to a hasty observer partiality subsists without any pretence whatever most exceptionable and absurd. It should be reof merit or of propriety, to justify the preference membered, as a maxim extremely applicable to of one place to another. Or, thirdly, to describe this subject, that no order or assembly of men the state of national representation as it exists in whatever can long maintain their place and aureality, it may be affirmed, I believe, with truth, thority in a mixed government, of which the mem that about one half of the House of Commons bers do not individually possess a respectable share obtain their seats in that assembly by the election of personal importance. Now whatever may be of the people, the other half by purchase, or by the the defects of the present arrangement, it infallinomination of single proprietors of great estates. bly secures a great weight of property to the This is a flagrant incongruity in the constitu- House of Commons, by rendering many seats in tion; but it is one of those objections which strike that house accessible to men of large fortunes, and most forcibly at first sight. The effect of all rea- to such men alone. By which means those chasoning upon the subject is, to diminish the first racters are engaged in the defence of the separate impression; on which account it deserves the rights and interests of this branch of the legisla more attentive examination, that we may be as- ture, that are best able to support its claims. The sured, before we adventure upon a reformation, constitution of most of the small boroughs, espethat the magnitude of the evil justifies the danger cially the burgage tenure, contributes, though unof the experiment. In a few remarks that follow, designedly, to the same effect: for the appointwe would be understood, in the first place, to ment of the representatives we find commonly decline all conference with those who wish to al- annexed to certain great inheritances. Elections ter the form of government of these kingdoms. purely popular are in this respect uncertain: in The reformers with whom we have to do, are times of tranquillity, the natural ascendancy of they who, whilst they change this part of the sys-wealth will prevail; but when the minds of men tem, would retain the rest. If any Englishman expect more happiness to his country under a republic, he may very consistently recommend a new-modelling of elections to parliament; because, if the King and House of Lords were laid aside, the present disproportionate representation would produce nothing but a confused and ill-digested ohgarchy. In like manner we have a controversy with those writers who insist upon representation as a natural right:* we consider it so far only as

*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

are inflamed by political dissensions, this influence often yields to more impetuous motives.The variety of tenures and qualifications, upon which the right of voting is founded, appears to me a recommendation of the mode which now subsists, as it tends to introduce into parliament a

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 pub lic 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.

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 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.

act 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 dispo sition 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 privato designs and resentments, cherished also by popu lar 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.

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 Some passages of our national history afford proposal that has a tendency to throw more of the grounds for these apprehensions.-Before the acbusiness of the nation into the House of Com- cession of James the First, or, at least, during the mons, or to collect a set of men more fit to trans- reigns of his three immediate predecessors, the act that business, or in general more interested in government of England was a government by the national happiness and prosperity. One con- force; that is, the king carried his measures in sequence, however, may be expected from these parliament by intimidation. A sense of personal projects, namely, "less flexibility to the influ- danger kept the members of the House of Comence of the crown." And since the diminution mons in subjection. A conjunction of fortunate of this influence is the declared and perhaps the causes delivered, at last, the parliament and nation sole design of the various schemes that have been from slavery. That overbearing system which produced, whether for regulating the elections, had declined in the hands of James, expired early contracting the duration, or for purifying the in the reign of his son. After the Restoration, constitution of parliament by the exclusion of there succeeded in its place, and, since the Revoplacemen and pensioners; it is obvious to remark, lution, has been methodically pursued, the more that the more apt and natural, as well as the more successful expedient of influence. Now we resafe and quiet way of attaining the same end, member what passed between the loss of terror, would be by a direct reduction of the patronage of and the establishment of influence. The transthe crown, which might be effected to a certain actions of that interval, whatever we may think of extent without hazarding further consequences. their occasion or effect, no friend of regal governSuperfluous and exorbitant emoluments of office ment would wish to see revived.-But the affairs may not only be suppressed for the present; but of this kingdom afford a more recent attestation provisions of law be devised, which should for the to the same doctrine. In the British colonies of future restrain within certain limits the number North America, the late assemblies possessed and value of the offices in the donation of the king. much of the power and constitution of our House But whilst we dispute concerning different of Commons. The king and government of schemes of reformation, all directed to the same Great Britain held no patronage in the country, end, a previous doubt occurs in the debate, whe-which could create attachment and influence sufther the end itself be good or safe: whether the influence so loudly complained of, can be destroy

ficient 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.

in them. From the success, or the facility, with which they who dealt out the patronage of the crown carried measures like these, ought we to conclude, that a similar application of honours and emoluments would procure the consent of parliaments to counsels evidently detrimental to the common welfare? Is there not, on the contrary, more reason to fear, that the prerogative, if deprived of influence, would not be long able to support itself? For when we reflect upon the power of the House of Commons to extort a compliance with its resolution from the other parts of the legislature; or to put to death the constitution by a refusal of the annual grants of money to the support of the necessary functions of government ;when we reflect also what motives there are, which, in the vicissitudes of political interests and passions, may one day arm and point this power against the executive magistrate; when we attend to these considerations, we shall be led perhaps to acknowledge, that there is not more of paradox than of truth in that important, but much decried apothegm, "that an independent parliament is incompatible with the existence of the monarchy."

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."

We protest, however, against any construction by which what is here said shall be attempted to be applied to the justification of bribery, or of any clandestine reward or solicitation whatever. The very secrecy of such negotiations confesses or begets a consciousness of guilt; which when the mind is once taught to endure without uneasiness, the character is prepared for every compliance and there is the greater danger in these corrupt practices, as the extent of their operation is unlimited and unknown. Our apology relates solely to that influence, which results from the acceptance or expectation of public preferments. Nor does the influence, which we defend, require any sacrifice of personal probity. In political, above all other subjects, the arguments or rather the conjectures on each side of the question, are often so equally poised, that the wisest judgments may be held in suspense: these I call subjects of indifference. But again; when the subject is not indifferent in itself, it will appear such to a great part of those to whom it is proposed, for want of information, or reflection, or experience, or of capacity to collect and weigh the reasons by which either side is supported. These are subjects of apparent indifference. This indifference occurs still more 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 For the sake of illustration, let it be supposed, 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 gratitude be withdrawn, other motives will suc- own laws; or that the two houses of parliament, ceed in their place, acting probably in an opposite with the King at their head, tried and decided direction, but equally irrelative and external to causes at their bar: it is evident, in the first place, 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 or adverse to the recommendation of the crown in matters which are really or apparently indifferent, as indifference hath been now explained, the business of the empire will be transacted with ease and convenience, or embarrassed with endless contention and difficulty. Nor is it a conclusion founded in justice, or warranted by experience, that because men are induced by views of interest to yield their consent to measures concerning which their judgment decides nothing, they may be brought by the same influence to act in deliberate opposition to knowledge and duty. Whoever reviews the operations of government in this country since the Revolution, will find few even of the most questionable measures of administration, about which the best-instructed judgment might not have doubted at the time; but of which R

kers would inevitably attach to one side or the other; and that where there were neither any fixed rules to regulate their determinations, nor any superior power to control their proceedings, these inclinations would interfere with the integrity of public justice. The consequence of which must be, that the subjects of such a constitution would live either without any constant laws, that is, without any known pre-established rules of adjudication whatever; or under laws made for particular persons, and partaking of the contradictions and iniquity of the motives to which they owed their origin.

Which dangers, by the division of the legislative and judicial functions, are in this country effectually provided against. Parliament knows not the individuals upon whom its acts will operate; it has no cases or parties before it; no private de

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. the shame of an unjust determination; they shelWhen laws are made, courts of justice, whatever ter themselves under one another's example; each be the disposition of the judges, must abide by man thinks his own character hid in the crowd: them: for the legislative being necessarily the su- for which reason, the judges ought always to be preme power of the state, the judicial and every so few, as that the conduct of each may be conother power is accountable to that; and it cannot spicuous to public observation; that each may be be doubted that the persons who possess the sove- responsible in his separate and particular reputareign authority of government, will be tenacious tion for the decisions in which he concurs. The of the laws which they themselves prescribe, and truth of the above remark has been exemplified in sufficiently jealous of the assumption of dispensing this country, in the effects of that wise regulation and legislative power by any others. 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.

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.

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 preju judgments 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; of which order juries are made up. The force and danger of them are also increased by the very circumstance of taking juries out of the county in which the subject of dispute arises. In the neighbourhood of the parties, the cause is often prejudged: and these secret decisions of the mind proceed commonly more upon sentiments of favour or hatred,-upon some opinion concerning the sect, family, profession, character, connexions, or circumstances of the parties,-than upon any knowledge or discussion of the proper merits of the question. More exact justice would, in many instances, be rendered to the suitors, if the determination were left entirely to the judges; provided we could depend upon the same purity of conduct, when the power of these magistrates was enlarged, 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 prejudices, 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 are two kinds of judicature; the one where the office of the judge is permanent in the same person, and consequently where the judge is appointed and known long before the trial; the other, where the judge is determined by lot at the time of the trial, and for that turn only. The one may be called a fixed, the other a casual judicature. From the former may be expected those qualifications which are preferred and sought for in the choice of judges, and that knowledge and readiness which result from experience in the of fice. But then, as the judge is known beforehand, he is accessible to the parties; there exists a possibility of secret management and undue practices; or, in contests between the crown and the subject, the judge appointed by the crown may be suspected 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.

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

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 unavoid ably 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 each 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