would procure the confent 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 itfelf? 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 legislature; or to put to death the conftitution by a refusal of the annual grants of money to the fupport of the neceffary functions of government-when we reflect also what motives there are which, in the viciffitudes of political interefts and paffions, may one day arm and point this power against the executive magiftratewhen we attend to these confiderations, 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."

CHA P. VIII.

OF THE ADMINISTRATION OF JUSTICE,

HE firft maxim of a free ftate is, that the

TH

laws be made by one fet of men, and administered by another: in other words, that the legislative and judicial characters be kept feparate. When thefe 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, muft be applied by the other, let them affect whom they will.

For the fake of illuftration, let it be fuppofed, in this country, either that, parliaments being laid afide, 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 caufes at their bar: it is evident, in the

first place, that the decifions of fuch a judicature would be fo many laws; and, in the fecond place, that, when the parties and the interefts 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 were neither any fixed rules to regulate their determinations, nor any fuperior power to control their proceedings, these inclinations would interfere with the integrity of public juftice. The confequence of which muft be, that the fubjects 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 persons, and partaking of the contradictions and iniquity of the motives to which they owed their origin.

Which dangers, by the divifion of the legiflative and judicial functions, are in this country effectually provided against. Parliament knows not the individuals upon whom its acts will operate; it has no cafes or parties before it; no private designs to ferve: consequently its resolutions will be fuggefted by the confideration of universal effects and tendencies, which always produces impartial, and commonly advantageous regula

tions. When laws are made, courts of justice, whatever be the difpofition of the judges, muft abide by them; for the legislative being necessarily 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 difpenfing and legislative powers by any others.

This fundamental rule of civil jurisprudence is violated in the cafe of facts of attainder or confifcation, 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 inftances in which it has been invaded, will be induced, I believe, to acknowledge, that it had been wiser and fafer never to have de

parted from it. He will confefs, 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 commiffion of future crimes of the fame fort. The escape of one delinquent can never produce fo much harm to the community, as may arise from the infraction of a rule, upon which the purity of public juftice, and the existence of civil liberty, effentially depend.

The next fecurity for the impartial administration of justice, especially in decifions 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 fervants of the crown is to be fought 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 fame thing, equally dependent upon both; that is, if they be appointed by the one they fhould be removable only by the other. This was the policy which dictated that memorable improvement in our conftitution, 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, folemn, and authentic way, by which the diffa

tisfaction