Imatges de pàgina






HE 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 sepa

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 foreleeing whom they may affect ; and, when made, must be applied by the other, let them affect whom

they will.

For the sake of illustration, let it be supposed, in this country, either that, parliaments being laid aside, the courts of Westminster-Hall made their own laws; or that the two houses of parliament, with the king at their head, tried and decided causes at their bar: it is evident, in the

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first place, that the decisions of such a judicature would be so many laws; and, in the second place, that, when the parties and the interests to be affected by the law were known, the inclinations of the law-makers would inevitably attach on 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-estublished rules of adjudication whatever; or under laws made for particular cases and 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 effe&tually provided against. Parliament knows not the individuals upon whom its acts will operate; it has no cases or parties before it; no private designs to serve: consequently its resolutions will be suggested by the confideration of universal effects and tendencies, which always produces impaitial, and commonly advantageous regula7


tions. When laws are made, courts of justice, whatever be the disposition of the judges, must abide by them; for the legislative being nécessarily the supreme power of the state, the judicial and every other power

is accountable to that; and it cannot be doubted but that the persons, who possess the sovereign authority of government, will be tenacious of the laws which they themselves prescribe, and fufficiently 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 comamiflion of future crimes of the same fort. The escape of one delinquent can never produce fo 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, effentially depend.

The next security for the impartial administration of justice, especially in decisions to which government is a party, is the independency of the judges. As protection against every illegal attack upon the rights of the subject by the servants of the crown is to be fought 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 only be deprived of them by an address from both houses of parliament; as the most regular, Lolemn, and authentic way, by which the diffatisfaction 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 fo libcrul as to secure their integrity from the temptation of secret bribes: which liberality will answer also the farther purpose of preserving their jurisdiction from contempt, and their characters from suspicion; as well as of rendering the office worthy of the ambition of men of eminence in their profession,


A third precaution to be observed in the formation of courts of justice, is, that the number of the judges be small. For, beside that the violence and tumult inseparable from large afsemblies are inconsistent with the patience, method, and attention requisite in judicial investigations ; beside that all passions and prejudices act with augmented force upon a collected multitude : belide these objections, judges when they are numerous divide the shame of an unjust determination; they shelter themselves under one another's esample; cach man thinks his own character hid in the crowd: for which reason the judges ought always to be so sew, as that the cenduct of cach may be conspicuous to public obfervation; that cach may be re


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