on and gratitude be withdrawn, other motives will fucceed in their place, acting probably in an oppofite direction, but equally irrelative and external to the proper merits of the queftion. There exift, as we have feen, paffions in the human heart, which will always make a strong party against the executive power of a mixed government. According as the difpofition 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 empire will be transacted with ease and convenience, or embarraffed with endless. contention and difficulties. Nor is it a conclufion founded in juftice or experience, that, because men are induced by views of interest to yield their confent or support to measures, concerning which their judgment decides nothing, they may be brought by the fame influence, to act in deliberate oppofition to knowledge and duty. Whoever reviews the operations of government in this country fince the revolution, will find few even of the most questionable meafures of adminiftration, about which the beft inftructed judgment might not have doubted at the time; but of which he may affirm with certainty, that they were indif

ferent

ferent to the greatest part of those who concurred in them. From the fuccefs or the facility, with which they who dealt out the patronage of the crown carried measures like thefe, ought we conclude, that a fimilar 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 refolutions from the other parts of the legiflature; or to put to death the conftitution by a refufal of the annual grants of money, to the support of the neceffary functions of government---when we reflect alfo, what motives there are, which, in the viciffitudes of political interests and paffions, may one day arm and point this power against the executive magiftrate-when we attend to thefe confiderations, we shall be led perhaps to acknowledge, that there is not more of paradox than of probability, in that important, but much decried apothegm, that an independent parliament is incompatible with the existence of the monarchy.'

CHAP.

T

CHA P. VIII.

Of the Adminiftration of Justice.

HE firft maxim of a free state is, that

the laws be made by one fet 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 fame perfon or affembly, particular laws are made for particular cafes, fpringing oftentimes from partial motives, and directed to private ends: whilft 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 fuppofed in this country, either that, parliaments being laid afide, the courts of Weftminfter Hall made their own law; or that the two houses of parliament, with the King at their head, tried and decided caufes at their bar; it is evident, in the first place,

that

that the decisions of fuch a judicature would be fo many laws; and, in the fecond 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 fide or the other; and that, where there was neither any fixed rule to regulate their determinations, nor any superior power to control their proceedings, these inclinations would interfere with the integrity of public juftice. The confequence of which muft be, that the subjects of fuch a conftitution would live either without any conftant laws, that is, without any known pre-established rules of adjudication whatever; or under laws. made for particular cafes and particular perfons, and partaking of the contradictions and iniquity of the motives, to which they owed their origin.

·

Which dangers, by the divifion of the legislative and judicial functions, are effectually provided againft. Parliament knows not the individuals upon whom its acts will operate; it has no cafes or parties before it; no private defigns to ferve: confequently, its refolutions will be fuggefted by the confideration of univerfal effects and ten

dencies,

dencies, which always produces impartial, and commonly advantageous regulations. When laws are made, courts of justice, whatever be the difpofition of the judges, muft abide by them; for the legislative being neceffarily the fupreme power of the ftate, the judicial and every other power is accountable to that: and it cannot be doubted, but that the perfons, who poffefs the fovereign authority of government, will be tenacious of the laws which they themselves prescribe, and fufficiently jealous of the affumption of dispensing and legislative powers by any others.

This fundamental rule of civil jurifpru→ dence is violated in the cafe of acts of attainder, of confiscation, in bills of pains and penalties, and in all ex poft facto laws whatever, in which parliament exercises the double office of legiflature and judge. And whoever either understands the value of the rule itself, or collects the hiftory of those inftances in which it has been invaded, will be induced, I believe, to acknowledge, that it had been wifer and fafer never to have departed from it. He will confefs at least, that nothing but the most manifest and immediate peril of the commonwealth