Imatges de pÓgina

the defect of the laws, provide against the commission of future crimes of the same fort. 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 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 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 libcral as to secure their integrity from the temptation of secret bribcs : which liberality will answer also the farther purpoie 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 few, as that the cenduct of each may be conspicuous to public observation ; that cach may be re


sponsible in his feparate 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, fimply 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—I 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 done; things remain as they were ; with some inconveniency, indeed, to the parties, but without the danger to the public of a hafty precedent.

A fourth

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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 byftanders, but in the audience of the whole fession 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 difhonest 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.

Something is also gained to the public by appointing two or three courts of concurrent jurisdiction, that it may remain in the option of the fuitor to which he will resort. By this means a tribunal which may happen to be occupied by ignorant or suspected judges, will be deserted for others that possess more of the confidence of the nation.

But, lastly, if several courts co-ordinate to, and independent of each other, subsist together in the country, it seems necessary that the

appeals from all of them should meet and termi


nate in the same judicature; in order that one supreme tribunal, by whose final sentence all others are bound and 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 irreversible. A common appellant jurisdiction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent, which

may be expected, whilst it is the same court which is at last resorted to, the different courts, from which the appeals are brought, will be reduced to a like consistency with one another. Moreover, if questions arise between courts, independent of each other, concerning the extent and boundaries of their respective jurisdigion, as each will be desirous of enlarging its own, an authority which both acknowledge can alone adjust the contraversy. Such a power,



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