the British colonies of North America, the late af femblies poffeffed much of the power and conftitution of our houfe of commons. The king and government of Great Britain held no patronage in the country, which could create attachment and influence, fufficient to counteract that reftlefs, arrogating fpirit, which in popular affemblies, when left to itfelf, will never brook an authority, that checks and interferes with its own. To this cause, excited perhaps by fome unfeasonable provocations, we may attribute, as to their true and proper original, we will not fay the misfortunes, but the changes that have taken place in the British empire. The admonition, which fuch examples fuggeft, will have its weight with thofe, who are content with the general frame of the English conftitution; and who confider ftability amongst the first perfections of any govern

ment.

We protest however against any conftruction, by which what is here faid fhall be attempted to be applied to the juftification of bribery, or of any clan. deftine reward or folicitation whatever. The very fecrecy of fuch negociations confeffes or begets a confcioufnefs of guilt; which, when the mind is once taught to endure without uneafinefs, the cha racter is prepared for every compliance. And there is the greater danger in thefe corrupt practices, as the extent of their operation is unlimited and unknown. Our apology relates folely to that influence, which refults from the acceptance or expectation of public preferments. Nor does the influence, which we defend, require any facrifice of perfonal probity. In political, above all other fubjects, the arguments, or rather the conjectures on each fide of a queftion, are often fo equally poized, that the wifeft judgments may be held in fufpenfe. Thefe I call fubjects of indifference. But again, when the fubject is not indifferent in itself, it will appear fuch to a great

part

part of those to whom it is propofed, for want of information, or reflection, or experience, or of capacity to collect and weigh the reafons by which either fide is fupported: Thefe are fubjects of apparent indifference. This indifference occurs ftill more frequently in perfonal contefts; in which, we do not often difcover any reafon of public utility, for the preference of one competitor to another. Thefe cafes compofe the province of influence; that is, the decifion in thefe cafes will inevitably be determined by influence of fome fort 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 fucceed in their place, acting probably in an oppofite direction, but equally irrelative and external to the proper merits of the question. 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 go vernment. According as the difpofition of parliament is friendly or adverfe to the recommendation of the crown in matters which are really or appa rently indifferent, as indifference hath been now explained, the bufinefs of empire will be tranfacted with ease and convenience, or embarraffed with endless contention and difficulty. Nor is it a coaclufion founded in juftice or warranted by experience, that, becaufe men are induced by views of intereft to yield their confent 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 measures of administration, about which the best inftructed judgment might not

have doubted at the time; but of which he may affirm with certainty, that they were indifferent to the greateft 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 meafures like thefe, ought we conclude, that a fimilar application of honours and emoluments would procure the confent of parliament to councils evidently detrimental to the common welfare? Is there not, on the contrary, more reafon to fear, that the prerogative, if deprived of influeuce, would not be long able to fupport itfelf? For when we reflect upon the power of the houfe 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 refufal of the annual of money, to the fupport of the neceffary functions of government-when we reflect alfo, what motives there are, which, in the viciffitudes of political interefts 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 truth, in that important, but much decried apophthegm, "that an independent parliament is incompatible with the exiftence of the monar chy.'

*

grants

CHAP

CHA P. VIII.

TH

OF THE ADMINISTRATION OF JUSTICE.

HE firft maxim of a free ftate is, that the laws be made by one fet of men, and administered by another; in other words, that the legiflative 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 feparate, 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 illuftration, let it be fuppofed, in this country, either that, parliaments being laid afide, the courts of Weftminster-Hall made their own laws; or that the two houfes of parliament, with the king at their head, tried, and decided caufes at their bar: it is evident, in the firft 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 was neither any fixed rule to regulate their determinations, nor any fuperior power to control their proceedings, thefe inclinatiE e 2

Ons

ons would interfere with the integrity of public juf tice. 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 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 in this country effectually provided againft. Parliament knows not the individu als 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 tendencies, 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 prefcribe, and fufficiently jealous of the affumption of difpenfing and legiflative powers by any others.

This fundamental rule of civil jurifprudence is violated in the cafe of acts of attainder or confifcation, in bills of pains and penalties, and in all ex poft facto laws whatever, in which parliament exer cifes the double office of legislature and judge. And whoever either understands the value of the rule itfelf, or collects the hiftory of thofe inftances, in which it has been invaded, will be induced, I believe, to acknowledge, that it had been wiser and fafer never to have departed from it. He will con

fels