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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 s be responsible in his separate and particular repu-p tation 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 elec tions 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 T 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 responsi bility, 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 not less than this. If the court be equally divided, nothing is done; things remain as they were; with some inconveniency, indeed, to the parties, but without the danger to the public of a hasty precedent.
A fourth requisite in the constitution of a court of justice, and equivalent to many checks upon the discretion of judges, is, that its proceedings be car. ried on in public apertis foribus; not only before a promiscuous concourse of by-standers, but in the audience of the whole profession of the law. The opinion of the Bar concerning what passes, will be t impartial; and will commonly guide that of the public. The most corrupt judge will fear to indulge his dishonest wishes in the presence of such an assembly: he must encounter, what few can support, the censure of his equale and companions, together with the indignation and reproaches of his country.
Something is also gained to the public by appointing two or three courts of concurrent jurisdiction, that it may remain in the option of the suitor to
which he will resort. By this means a tribunal which may happen to be occupied by ignorant or suspected judges, will be deserted for others that possess more of the confidence of the nation.
But, lastly, if several courts, co-ordinate to and independent of each other, subsist together in the country, it seems necessary that the appeals from all of them should meet and terminate in the same judicature; in order that one supreme tribunal, by whose final sentence all others are bound and concluded, may superintend and preside over the rest. This constitution is necessary for two purposes;to preserve a uniformity in the decisions of inferior courts, and to maintain to each the proper limits of its jurisdiction. Without a common superior, different courts might establish contradictory rules of adjudication, and the contradiction be final and without remedy; the same question might receive opposite determinations, according as it was brought before one court or another, and the deter mination in each be ultimate and irreversible. A common appellant jurisdiction prevents or puts an end to this confusion. For when the judgments upon appeals are consistent (which may be expected, whilst it is the same court which is at last resorted to,) the different courts, from which the appeals are brought will be reduced to a like oonsistency with one another. Moreover, if questions arise between courts independent of each other, concerning the extent and boundaries of their respective jurisdiction, as feach will be desirous of enlarging its own, an authority which both acknowledge can alone adjust the controversy. Such a power, therefore, must reside somewhere, lest the endless opposition and mutual encroachments of its courts of justice.
There are two kinds of judicature; the one where the office of the judge is permanent in the same person, and consequently where the judge appointed and known long before the trial; the other, where the judge is determined by lot at the time of the trial, and for that turn only. The one may be called a fixed, the other a casual judicature. From the former may be expected those qualifica tions which are preferred and sought for in the
choice of judges, and that knowledge and readines which result from experience in the office. Bu then, as the judge is known beforehand, he is ac cessible to the parties; there exists a possibility o secret management and undue practices; or, in contests between the crown and the subject, the judge appointed by the crown may be suspected of par tiality to his patron, or of entertaining inclinations favourable to the authority from which he derives his own. The advantage attending this second kind of judicature, is indifferency; the defect, the want of that legal science which produces uniformity and justice in legal decisions. The construction of English courts of law, in which causes are tried by a jury, with the assistance of a judge, combines the two species with peculiar success. This admirable contrivance unites the wisdom of a fixed with the integrity of a casual judicature; and avoids, in a great measure, the inconveniences of both. The judges imparts to the jury the benefit of his erudition and experience; the jury, by their disinterestedness, check any corrupt partialities which previous application may have produced in the judge. If the determination were left to the judge, the party might suffer under the superior interest of his adversary if it were left to an unin structed jury, his rights would be in still greater danger, from the ignorance of those who were to decide upon them. The present wise admixture of chance and choice in the constitution of the court in which his cause is tried, guards him equally against the fear of injury from either of these
In proportion to the acknowledged excellency of this mode of trial, every deviation from it ought to be watched with vigilance, and admitted by the legislature with caution and reluctance. Summary convictions before justices of the peace, especially for offences against the game-laws; courts of conscience; extending the jurisdiction of courts of equity; urging too far the distinction between questions of law and matters of fact;-are all so many infringements upon this great charter of pub lic safety.
Nevertheless, the trial by jury is sometimes
ind inadequate to the administration of equal stice. This imperfection takes place chiefly in putes in which some popular passion or prejue intervenes; as where a particular order of in advance claims upon the rest of the communiwhich is the case of the clergy contending for les; or where an order of men are obnoxious by ir profession, as are officers of the revenue, bail, bailiffs' followers, and other low ministers of law; or where one of the parties has an interest common with the general interest of the jurors, d that of the other is opposed to it, as in contests tween landlords and tenants, between lords of nors and the holders of estates under them; or, tly, where the minds of men are inflamed by pocal dissensions or religious hatred. These prelices act most powerfully upon the common ople; of which order, juries are made up. The ce and danger of them are also increased by the y circumstance of taking juries out of the county which the subject of dispute arises. In the ghbourhood of the parties, the cause is often judged and these secret decisions of the mind ceed commonly more upon sentiments of favour hatred,-upon some opinion concerning the sect, aily, profession, character, connexions, or cirnstances, of the parties, than upon any knowge or discussion of the proper merits of the estion. More exact justice would, in many innces, be rendered to the suitors, if the determiion were left entirely to the judges; provided could depend upon the same purity of conduct, en the power of these magistrates was enlarged, ich they have long manifested in the exercise of ixed and restrained authority. But this is an eriment too big with public danger to be hazard
The effects, however, of some local prejudices, ght be safely obviated by a law empowering the rt in which the action is brought, to send the se to trial in a distant county; the expenses atding the change of place always falling upon party who applied for it.
There is a second division of courts of justice, ich presents a new alternative of difficulties. her one, two, or a few, sovereign courts may be
erected in the metropolis, for the whole kingdof to resort to; or courts of local jurisdiction may be par fixed in various provinces and districts of the em pire. Great, though opposite, inconveniences atte tend each arrangement. If the court be remote cas and solemn, it becomes, by these very qualities, E expensive and dilatory; the expense is unavoida bly increased when witnesses, parties, and agents, det must be bronght to attend from distant parts of the country: and, where the whole judicial business of a large nation is collected into a few superior tribunals, it will be found impossible, even if the prolixity of forms which retards the progress of causes were removed, to give a prompt hearing to every complaint, or an immediate answer to any. On the other hand, if, to remedy these evils, and to render the administration of justice cheap and speedy, domestic and summary tribunals be erect ed in each neighbourhood, the advantage of such courts will be accompanied with all the dangers of ignorance and partiality, and with the certain mis chief of confusion and contrariety in their decisions.& The law of England, by its circuit, or itinerary courts, contains a provision for the distribution of private justice, in a great measure relieved from both these objections. As the presiding magistrate comes into the country a stranger to its prejudices, rivalships, and connexions, he brings with him none of those attachments and regards which are so apt to pervert the course of justice when the parties and the judges inhabit the same neighbourhood.t Again; as this magistrate is usually one of the judges of the supreme tribunals of the kingdom, and has passed his life in the study and admini stration of the laws, he possesses, it may be pret sumed, those professional qualifications which bea fit the dignity and importance of his station. Last t ly, as both he, and the advocates who accompany E him in his circuit, are employed in the business of those superior courts, (to which also their proceed ings are amenable,) they will naturally conduct n themselves by the rules of adjudication which they sihave applied or learned there; and by this means le maintain, what constitutes a principal perfection