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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 influence from a different quarter. If motives of expectation and gratitude be withdrawn, other motives will succeed in their place, acting probably in an opposite direction, but equally irrelative and external to the proper merits of the question.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 a 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 judgment 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 instructed 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 patronage of the crown carried measures like these, ought we to conclude that a similar application of honours and emoluments would procure the consent of parliaments 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 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 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.”
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 legislature 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 laws 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 preestablished rules of adjudication whatever; or under laws made for 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 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 and 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 ea 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 commission of future crimes of the same sort. 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 ought 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 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 certain 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 further purpose of preserving their jurisdiction from contempt, and their characters from suspicion; as well as of rendering the office worthy of the ambition of men of eminence in their profession. 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 attention 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 crowd: for which reason the judges ought always to be so few as that the conduct of each may be conspicuous to public observation; that each may be responsible in his separate and particular reputation for the decisions in which he concurs. The truth of the above remark has been exemplified in this country, in the effects of that wise regulation which transferred the trial of parliamentary elections from the House of Commons at large to a select Committee of that house, composed of thirteen members. This alteration, simply by reducing the number of the judges, and, in consequence of that reduction, exposing the judicial conduct of each to public animadversion, has given to a judicature, which had been long swayed by interest and solicitation, the solemnity 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, beside that it sufficiently consults the idea of separate responsibility, nothing can be decided but by a majority of three to one: and when we consider that every decision establishes a perpetual precedent, we shall allow that it ought to proceed from an authority