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assemblies possessed much of the power and constitution of our House of Commons. The king and government of Great Britain held no patronage in the country, which could create attachment and influence sufficient to counteract that restless arrogating spirit, which, in popular assemblies, when left to itself, will never brook an authority that checks and interferes with its own. To this cause, excited perhaps by some unseasonable provocations, we may attribute, as to their true and proper original, (we will not say the misfortunes, but,) the changes that have taken place in the British empire. The admonition which such examples suggest, will have its weight with those who are content with the general frame of the English constitution; and who consider stability amongst the first perfections of any government.
We protest, however, against any construction, by which what is here said shall be attempted to be applied to the justification of bribery, or of any clandestine reward or solicitation whatever. The very secrecy of such negotiations confesses or be. gets a consciousness of guilt; which when the mind is once taught to endure without uneasiness, the character is prepared for every compliance : and there is the greater danger in these corrupt fractices, as the extent of their operation is unlimited and unknown, Our apology relates solely to that influence, which results from the acceptance or expectation of public preferments. Nor does the inAuence which we defend, require any sacrifice of personal probity. In polítical, above all other subjects, the arguments, or rather the conjectures, on each side of the question, are often so equally poised, that the wisest judgments may be held in suspense : these I call subjects of indifference. But again; when the subject is not indifferent in itself, it will appear such to a great part of those to whom it is proposed, for want of information, or reflection, or experience, or of capacity to collect and weigh the reasons by which either side is supported. These are subjects of apparent indifference. This indifference occurs still more frequently in personal contests; in which we do not often discover any reason of public utility for the preference of one
competitor to another. These cases compose the province of influence : that is, the decision in these cases will inevitably be determined by influence of some sort or other. The only doubt is, what influence shall be admitted. If you remove the influence of the crown, it is only to make way for influ. ence from a different quarter. If motives of expectation and gratitude be withdrawn, other motives will succeed in their place, acting probably in an op: posite direction, but equally irrelative and external to the proper merits of the question. There exist, as we have seen, passions in the human heart, which will always make a strong party against the executive power of a mixed government. According as the disposition of parliament is friendly or adverse to the recommendation of the crown in matters which are really or apparently indifferent, as indifference hath been now explained, the business of the empire will be transacted with ease and convenience, or embarrassed with endless contention and difficulty. Nor is it à conclusion founded in justice, or warranted by experience, that because men are induced by views of interest to yield their consent to measures concerning which their judg. ment decides nothing, they may be brought by the same influence to act in deliberate opposition to knowledge and duty: Whoever reviews the operations of government in this country since the Revolution, will find few even of the most questionable measures of administration, about which the best instructive judgment might not have doubted at the time; but of which we may affirm with certainty, they were indifferent to the greatest part of those who concurred in them. From the success or the facility, with which they who dealt out the patron. age of the crown carried measures like these, ought we to conclude, that a similar application of honours and emoluments would procure the consent of par liaments to counsels 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 it. self? 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 vicissitudes 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 independent parliament is incompatible with the existence of the monarchy.”
CHAP. VIII. Of the administration of justice. The first maxim of a free state is, that the 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 sake 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 were 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 persons, and partaking of the contradictions and iniquity of the Botives 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 effects and tendencies, which always produces impartial, and commonly advantageous regulations. 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 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 the legislative power 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 post 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 defect of the laws, provide against the com. mission of future crimes of the same sort. The escape of one delinquent can never produce so much harm to the cpmmunity 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, dependant 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 be deprived of them only by an address from both houses of parliament; as the most regular, solemn, and authentic way, by which the dissatisfaction 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 cer: tain both in amount and continuance, but so liberal as to secure their integrity from the temptation of secret bribes ; which liberality will answer also the farther purpose of preserving their jurisdiction from contempt, and their characters from suspipicion; as well as of rendering the office worthy of the ambition of men of eminence in their pro. fession.
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 assemblies are inconsistent with the patience, method, and atten. tion, requisite in judicial investigations ; beside that all passions and prejudices act with augmented force upon a collected multitude ; beside these objections, judges, when they are numerous, divide the shame of an unjust determination; they shelter themselves under one another's example : each man thinks his own character hid in the