concerning the arbitrary office of those courts, to be countenanced by the apparent authority of lawyers, and of men of abilities, at the same time that I have not seen in any book any attempt made professedly to confute the same, nor indeed to point out the nature and true office of the courts of equity.

CHAP. XII.

OF CRIMINAL JUSTICE.

WE are now to treat of an article, which, though it does not in England, and indeed should not in any state, make part of the powers which are properly constitutional, that is, of the reciprocal rights by means of which the powers that concur to form the government constantly balance each other, yet essentially interests the security of individuals, and, in the issue, the constitution itself; I mean to speak of criminal justice. But, previous to an exposition of the laws of England on this head, it is necessary to desire the reader's attention to certain considerations.

When a nation entrusts the power of the state to a certain number of persons, or to one, it is with a view to two points: the one, to repel more effectually foreign attacks; the other, to maintain domestic tranquillity.

To accomplish the former point, each individual surrenders a share of his property, and sometimes, to a certain degree, even of his liberty. But, though the power of those who are the heads of the state may thereby be rendered very considerable, yet it cannot be said, that liberty is, after all, in any high degree endangered, because, should ever the executive power turn against the nation a strength which ought to be employed solely for its defence, this nation, if it were really free, by which I mean, unrestrained by political prejudices, would be at no loss for providing the means of its security.

In regard to the latter object, that is, the maintenance of domestic tranquillity, every individual must, exclusive of new renunciations of his natural liberty, moreover sur

render, which is a matter of far more dangerous consequence, a part of his personal security.

The legislative power, being, from the nature of human affairs, placed in the alternative, either of exposing individuals to dangers which it is at the same time able extremely to diminish, or of delivering up the state to the boundless calamities of violence and anarchy, finds itself compelled to reduce all its members within reach of the arm of the public power, and, by withdrawing in such cases the benefit of the social strength, to leave them exposed, bare, and defenceless, to the exertion of the comparatively immense power of the executors of the laws.

Nor is this all; for, instead of that powerful re-action which the public authority ought in the former case to experience, here it must find none; and the law is obliged to proscribe even the attempt of resistance. It is therefore in regulating so dangerous a power, and in guarding, lest it should deviate from the real end of its institution, that legislation ought to exhaust all its efforts.

But here it is of great importance to observe, that the more powers a nation has reserved to itself, and the more it limits the authority of the executors of the laws, the more industriously ought its precautions to be multiplied.

In a state where, from a series of events, the will of the prince has at length attained to hold the place of law, he spreads an universal oppression, arbitrary and unresisted; even complaint is dumb; and the individual, undistinguishable by him, finds a kind of safety in his own insignificance. With respect to the few who surround him, as they are at the same time the instruments of his greatness, they have nothing to dread but his momentary caprices; a danger against which, if there prevails a certain general mildness of manners, they are in a great measure secured.

But in a state where the ministers of the laws meet with obstacles at every step, even their strongest passions are continually put in motion; and that portion of public authority, deposited with them to be the instrument of national tranquillity, easily becomes a most formidable

weapon.

Let us begin with the most favourable supposition, and imagine a prince whose intentions are in every case thoroughly upright; let us even suppose, that he never

lends an ear to the suggestions of those whose interest it is to deceive him; nevertheless, he will be subject to error: and this error, which, I will farther allow, solely proceeds from his attachment to the public welfare, yet may very possibly happen to prompt him to act as if his views were directly opposite.

When opportunities shall offer, and many such will occur, of procuring a public advantage by overleaping restraints, confident in the uprightness of his intentions, and being naturally not very earnest to discover the distant evil consequences of actions in which, from his very virtue, he feels a kind of complacency, he will not perceive, that, in aiming at a momentary advantage, he strikes at the laws themselves on which the safety of the nation rests, and that those acts, so laudable when we only consider the motive of them, make a breach at which tyranny will one day enter.

Yet farther, he will not even understand the complaints that will be made against him. To insist upon them will appear to him to the last degree injurious: pride, when perhaps he is least aware of it, will enter the lists; what he began with calmness, he will prosecute with warmth; and if the laws shall not have taken every possible precaution, he may think he is acting a very honest part, while he treats as enemies of the state, men whose only crime will be that of being more sagacious than himself, or of being in a better situation for judging of the results of

measures.

But it were mightily to exalt human nature to think that this case of a prince, who never aims at augmenting his power, may in any shape be expected frequently to occur. Experience, on the contrary, evinces that the happiest dispositions are not proof against the allurements of power, which has no charms but as it leads on to new advances: authority endures not the very idea of restraint; nor does it cease to struggle till it has beaten down every boundary.

Openly to level every barrier, at once to assume the absolute master, are, as we said before, fruitless tasks. But it is here to be remembered, that those powers of the people which are reserved as a check upon the sovereign, can only be effectual so far as they are brought into action by private individuals. Sometimes a citizen, by

the force and perseverance of his complaints, opens the eyes of the nation; at other times, some member of the legislature proposes a law for the removal of some public abuse: these, therefore, will be the persons against whom the prince will direct all his efforts.

And he will the more assuredly do so, as from the error so usual among men in power, he will think that the opposition he meets with, however general, wholly depends on the activity of but one or two leaders; and amidst the calculations he will make, both of the supposed smallness of the obstacle which offers to his view, and of the decisive nature of the single blow he thinks he needs to strike, he will be urged on by the despair of ambition on the point of being baffled, and by the most violent of all hatreds, that which was preceded by contempt.

In that case which I am still considering, of a really free nation, the sovereign must be very careful that military violence do not make the smallest part of his plan: a breach of the social compact like this, added to the horror of the expedient, would infallibly endanger his whole authority. But on the other hand, as he has resolved to succeed, he will, in defect of other resources, try the utmost extent of the legal powers which the constitution has intrusted with him; and if the laws have not in a manner provided for every possible case, he will avail himself of the imperfect precautions themselves that have been taken, as a cover to his tyrannical proceedings; he will pursue steadily his particular object, while his professions breathe nothing but the general welfare, and destroy the assertors of the laws, under the very shelter of the forms contrived for their security."

This is not all; independently of the immediate mischief he may do, if the legislature do not interpose in time, the blows will reach the constitution itself; and the consternation becoming general amongst the people,

a By the word prince, I mean those who, under whatever appellation and in whatever government it may be, are at the head of public affairs.

b If there were any person who charged me with calumniating human nature, for it is her alone I am accusing here, I would desire him to cast his eyes on the history of a Louis XI.—of a Richelieu, and above all, on that of England before the revolution: he would see the arts and activity of government increase, in proportion as it gradually lost its means of oppression.

each individual will find himself enslaved in a state which yet may still exhibit all the common appearances of liberty.

Not only, therefore, the safety of the individual, but that of the nation itself, requires the utmost precautions in the establishment of that necessary, but formidable, prerogative of dispensing punishments. The first to be taken, even without which it is impossible to avoid the dangers above suggested, is, that it never be left at the disposal, nor, if it be possible, exposed to the influence, of the man who is the depositary of the public power.

The next indispensable precaution is, that neither shall this power be vested in the legislative body; and this precaution, so necessary alike under every mode of government, becomes doubly so, when only a small part of the nation has a share in the legislative power.

If the judicial authority were lodged in the legislative part of the people, not only the great inconvenience must ensue of its thus becoming independent, but also that worst of evils, the suppression of the sole circumstance that can well identify this part of the nation with the whole, which is, a common subjection to the rules which they themselves prescribe. The legislative body, which could not, without ruin to itself, establish, openly and by direct laws, distinctions in favour of its members, would introduce them by its judgments; and the people, in electing representatives, would give themselves masters.

The judicial power ought therefore absolutely to reside in a subordinate and dependent body; dependent, not in its particular acts, with regard to which it ought to be a sanctuary, but in its rules and in its forms, which the legislative authority must prescribe. How is this body to be composed? In this respect farther precautions must

be taken.

In a state where the prince is absolute master, numerous bodies of judges are most convenient, inasmuch as they restrain, in a considerable degree, that respect of persons which is one inevitable attendant on that mode of government. Besides, those bodies, whatever their outward privileges may be, being at bottom in a state of great weakness, have no other means of acquiring the respect of the people than their integrity, and their constancy in observing certain rules and forms: nay, these circum