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similar application of honours and emoluments 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 upon the power of the house of commons to extort a compliance with its resolutions from the other parts of the legislature; or to put to death the constitution by a refusal of the annual grants of money, to the support of the necessary functions of government-when we reflect also, what motives there are, which, in the viciffitudes of political interests and passions, may one day arm and point this power against the executive magistrate when 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 in“ dependent parliament is incompatible with the “ existence of the monarchy.".
°C H A P. VIII.
OF THE ADMINISTRATION OF JUSTICE..
THE first maxim of a free state is, that the
1 laws be made by one set of men, and administered by another ; in other words, that the legislative and judicial characters be kept separate. 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 foreseeing whom they may affect ; and when made, must be applied by the other, let them affect whom they will.
For the fake 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 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 was 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 consideration of universal effe&s and tendencies, which always produces impartial, and commonly advantageous regula
tions. When laws are made, courts of justice, whatever be the disposition of the judges, must abide by them; for the legislative being necessarily 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 sufficiently jealous of the assumption of dispensing and legislative powers 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 poft 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 the defect of the laws, provide against the commission of future crimes of the fame 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 pught 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, solemn, and authentic way, by which the dissa