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 secret bribes: which liberality will answer alfo the farther purpose of preserving their jurifdiction from contempt, and their characters from suspicion; as well as of rendering the office worthy of the ambition of men of eminence in their profeffion. A third precaution to be obferved in the formation of courts of justice, is, that the number of the judges be fmall. For, beside 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 shelter themselves under one another's example; each man thinks his own character hid in the crowd: for which reason the judges ought always to be fo few, as that the conduct of each may be confpicuous to public obfervation; that each may be responsible fponfible in his feparate and particular reputation for the decifions in which he concurs. The truth of the above remark has been exemplified in this country, in the effects of that wise regu lation which transferred the trial of parliamentary elections from the house of commons at large, to a felect committee of that house composed of thirteen members. This alteration, fimply by reducing the number of the judges, and, in confequence of that reduction, expofing the judicial conduct of each to public animadverfion, has given to a judicature, which had been long fwayed by intereft and folicitation, the folemnity 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, befide that it fufficiently confults the idea of separate responsibility, nothing can be decided but by a majority of three to one. And when we confider that every decision establishes a perpetual precedent, we shall allow that it ought to proceed from an authority not lefs 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 A fourth requifite in the conftitution of a court of juftice, 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 promifcuous concourse of byftanders, but in the audience of the whole profeffion of the law. The opinion of the Bar concerning what paffes will be impartial; and will commonly guide that of the public. The moft corrupt judge will fear to indulge his difhoneft wishes in the presence of fuch an affembly: he must encounter what few can support, the cenfure of his equals and companions, together with the indignation and reproaches of his country. Something is alfo gained to the public by appointing two or three courts of concurrent jurifdiction, that it may remain in the option of the fuitor to which he will refort. By this means a tribunal which may happen to be occupied by ignorant or fufpected judges, will be deferted for others, that poffefs more of the confidence of the nation. But, laftly, if feveral courts co-ordinate to, and independent of each other, fubfift together in the country, it seems neceffary that the appeals from all of them should meet and termi nate nate in the fame judicature; in order that one supreme tribunal, by whofe final fentence all others are bound and concluded, may fuperintend and prefide over the reft. This conftitution is neceffary for two purpofes-to preferve an uniformity in the decifions of inferior courts, and to maintain to each the proper limits of its jurifdiction. Without a common fuperior, different courts might establish contradictory rules of adjudication, and the contradiction be final and without remedy; the fame queftion might receive oppofite determinations, according as it was brought before one court or another, and the determination in each be ultimate and irreverfible. A common appellant jurisdiction prevents or puts an end to this confufion. For when the judgments upon appeals are consistent, which may be expected, whilft it is the fame court which is at laft reforted to, the different courts, from which the appeals are brought, will be reduced to a like confiftency with one another. Moreover, if queftions arife between courts independent of each other, concerning the extent and boundaries of their refpective jurifdiction, as each will be defirous of enlarging its own, an authority which both acknowledge can alone adjust the controverfy. Such a power, therefore, therefore, muft refide fomewhere, left the rights and repofe of the country be diftracted, by the endless oppofition and mutual encroachments of its courts of justice. There are two kinds of judicature; the one, where the office of the judge is permanent in the fame person, and confequently where the judge is appointed and known long before the trial; the other, where the judge is determined by lot at the time of the trial, and for that turn only. The one may be called a fixed, the other a cafual judicature. From the former may be expected those qualifications, which are preferred and fought for in the choice of judges, and that knowledge and readiness which refult from experience in the office. But then, as the judge is known before-hand, he is acceffible to the parties; there exists a poffibility of fecret management and undue practices: or, in contefts between the crown and the fubject, the judge appointed by the crown may be fufpected of partiality to his patron; or of entertaining inclinations favourable to the authority from which he derives his own. The advantage attending the fecond kind of judicature is indifferency; the defect, the want of that legal fcience, which produces uniformity and juftice. in |