Imatges de pÓgina

make a strong party against the executive power
of a mixed government. According as the dif-
position 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 busi-
ness of empire will be transacted with ease and
convenience, or embarrassed with endless con-
tention and difficulty. Nor is it a conclufion
founded in justice, or warranted by experience,
that, because men are induced by views of in-
terest to yield their consent to measures, con-
cerning which their judgment decides nothing,
they may be brought by the fame influence to
act in deliberate opposition to knowledge and
duty. Whoever reviews the operations of go-
vernment 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 he may affirm with cer-
tainty, that they were indifferent to the greatest
part of those who concurred in them. From
the success, or the facility, with which they who
dealt out the patronage of the crown carried
measures like these, ought weto conclude, that a
similar application of honours and emoluments




power of

would procure the consent of parliament to councils 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


the the house of commons to extort a compliance with its resolutions from the other parts of the legidature; or to put to death the constitution by a refusal of the annual grants of money to the fupport 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 magistratewhen 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 apophthegm, “ that

an independent parliament is incompatible with " the existence of the monarchy.”

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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-established 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 effectually 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 univertal effects and tendencies, which always produces impaitial, and commonly advantageous regula

tions. When laws are made, courts of justice, whatever be the disposition of the judges, muit 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 poffess 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


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