CHAP. VIII.

OF THE ADMINISTRATION OF JUSTICE.

HE first maxim of a free ftate is, that the

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laws be made by one set of men, and administered by another in other words, that the

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legislative and judicial characters be kept separate. When thefe offices are united in the fame perfon or affembly, particular laws are made. for particular cafes, fpringing oftentimes from partial motives, and directed to private ends: whilft they are kept feparate, 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.

For the fake of illuftration, let it be fuppofed, in this country, either that, parliaments being laid afide, the courts of Weftminster-Hall made their own laws; or that the two houfes of parliament, with the king at their head, tried and decided caufes at their bar: it is evident, in the

first place, that the decifions of fuch a judicature would be fo many laws; and, in the fecond 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 fide or the other; and that, where there were neither any fixed rules to regulate their determinations, nor any fuperior power to control their proceedings, thefe inclinations would interfere with the integrity of public juftice. The confequence of which muft be, that the fubjects of fuch a conftitution would live either without any conftant laws, that is, without any known pre-established rules of adjudication whatever; or under laws made for particular cafes and particular perfons, and partaking of the contradictions and iniquity of the motives to which they owed their origin.

Which dangers, by the divifion of the legislative and judicial functions, are in this country effectually provided againft. Parliament knows not the individuals upon whom its acts will operate; it has no cafes or parties before it; no private defigns to ferve: confequently its refolutions will be fuggefted by the confideration of univerfal effects and tendencies, which always produces impartial, and commonly advantageous regulations.

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tions. When laws are made, courts of juftice, whatever be the difpofition of the judges, muft abide by them; for the legislative being neceffarily the fupreme power of the ftate, the judicial and every other power is accountable to that; and it cannot be doubted but that the persons, who poffefs the fovereign authority of government, will be tenacious of the laws which they themselves prefcribe, and fufficiently jealous of the affumption of difpenfing and legislative power by any others.

This fundamental rule of civil jurisprudence is violated in the cafe of acts of attainder or confifcation, in bills of pains and penalties, and in all ex poft facto laws whatever, in which parliament exercifes the double office of legislature and judge. And whoever either understands the value of the rule itself, or collects the hiftory of those inftances in which it has been invaded, will be induced, I believe, to acknowledge, that it had been wifer and fafer never to have departed from it. He will confefs, at least, that nothing but the moft manifeft 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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the defect of the laws, provide against the commiffion of future crimes of the fame fort. The escape of one delinquent can never produce fo much harm to the community, as may arife from the infraction of a rule, upon which the purity of public juftice, and the existence of civil liberty, effentially depend.

The next fecurity for the impartial adminiftration of juftice, efpecially in decifions 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 fervants of the crown is to be fought for from thefe 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 fame thing, equally dependent upon both; that is, if they be appointed by the one, they fhould be removable only by the other. This was the policy which dictated that memorable improvement in our conftitution, 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 addrefs from both houfes of parliament; as the most regular, folemn, and authentic way, by which the diffa

tisfaction

tisfaction of the people can be expreffed. To make this independency of the judges complete, the public falaries of their office ought not only to be certain both in amount and continuance, but fo liberal as to fecure their integrity from the temptation of fecret bribes: which liberality will answer alfo the farther purpoíe of preferving their jurisdiction from contempt, and their characters from fufpicion; as well as of rendering the office worthy of the ambition of men of eminence in their profeffion.

A third precaution to be observed in the formation of courts of justice, is, that the number of the judges be fmall. For, befide that the violence and tumult infeparable from large affemblies are inconfiftent with the patience, method, and attention requifite in judicial investigations; befide that all paffions and prejudices act with augmented force upon a collected multitude befide thefe objections, judges when they are numerous divide the fhame of an unjuft determination; they fhelter themfelves under one another's example; cach man thinks his own character hid in the crowd: for which reafon the judges ought always to be fo few, as that the conduct of each may be confpicuous to public obfervation; that each may be re

sponsible