them until they all confented to the fame verdict; befpeaks more of the conceit of a barbarous age, than of the policy which could dictate fuch an inftitution as that of júries. Nevertheless, the effects of this rule are not fo detrimental, as the rule itself is unreasonable; in criminal profecutions it operates confiderably in favour of the prisoner; for if a juror find it neceffary to furrender to the obftinacy of others, he will much more readily refign his opinion on the fide of mercy, than of condemnation: in civil furts it adds weight to the direction of the judge; for when a conference with one another does not feem likely to produce, in the jury, the agreement that is neceffary, they will naturally close their difputes by a common fubmiffion to the opinion delivered from the bench. However, there feems to be lefs of the concurrence of feparate judgments in the fame conclufion, confequently lefs affurance that the conclufion is founded in reasons of apparent truth and justice, than if the decifion were left to a plurality, or to fome certain majority of voices.

The fecond circumftance in our conftitution, which however it may fucceed in practice, does not seem to have been fuggefted by any intelligible fitness in the nature of the thing, is the

choice that is made of the house of lords as a court of appeal from every civil court of judicature in the kingdom; and the laft alfo and highest appeal to which the fubject can refort. There appears to be nothing in the conftitution of that affembly; in the education, habits, cháracter or profeffions of the members who compofe it; in the mode of their appointment, or the right by which they fucceed to their places in it, that should qualify them for this arduous office except, perhaps, that the elevation of their rank and fortune affords a fecurity against the offer and influence of fmall bribes. Officers of the army and navy, courtiers, ecclefiaftics; young men who have juft attained the age of twentyone, and who have paffed their youth in the diffipation and purfuits which commonly accompany the poffeffion or inheritance of great fortunes; country gentlemen, occupied in the management of their eftates, or in the care of their domestic concerns and family interests; the greater part of the affembly born to their station, that is, placed in it by chance; most of the rest advanced to the peerage for fervices, and from motives, utterly unconnected with legal eruditionthese men compofe the tribunal, to which the conftitution entrufts the interpretation of her

laws,

laws, and the ultimate decifion of every dispute between her fubjects. These are the men affigned to review judgments of law, pronounced by fages of the profeffion, who have spent their lives in the study and practice of the jurisprudence of their country. Such is the order which our ancestors have established. The effect only proves the truth of this maxim-" That when a single "inftitution is extremely diffonant from other parts of the fyftem to which it belongs, it will always find fome way of reconciling itfelf to "the analogy which governs and pervades the "rest." By conftantly placing in the house of lords fome of the most eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abstract question of law awaits their determination; by the almoft implicit and undifputed deference, which the uninformed part of the houfe find it neceflary to pay to the learning of their colleagues, the appeal to the houfe of lords becomes in fact an appeal to the collected wisdom of our fupreme courts of juftice; receiving indeed folemnity, but little perhaps of direction, from the prefence of the affembly in which it is heard and determined.

Thefe, however, even if real, are minute imperfections.

7

perfections. A politician, who fhould fit down" to delineate a plan for the dispensation of public juftice, guarded againft all access to influence and corruption, and bringing together the feparate advantages of knowledge and impartiality, would find, when he had done, that he had been transcribing the judicial conftitution of England. And it may teach the most discontented amongst us to acquiefce in the government of his country, to reflect, that the pure, and wife, and equal adminiftration of the laws, forms the first end and bleffing of focial union; and that this bleffing is enjoyed by him in a perfection, which he will feek in vain in any other nation of the world.

CHAP.

CHAP. IX.

OF CRIMES AND PUNISHMENTS.

HE proper end of human punishment is,

TH

not the fatisfaction of juftice, but the prevention of crimes. By the fatisfaction of juftice, I mean the retribution of fo much pain for fo much guilt; which is the difpenfation we expect at the hand of God, and which we are accuftomed to confider as the order of things that perfect juftice dictates and requires. In what fenfe, or whether with truth in any fenfe, juftice may be faid to demand the punishment of offenders, I do not now enquire; but I affert that this demand is not the motive or occafion of human punishment. What would it be to the magistrate that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear left the efcape of the criminal should encourage him, or others by his example, to repeat the fame crime, or to commit