In England, the whole tranfaction is in open court, where the conduct of the judge is liable to be examined with a jealous eye, and his character to be either honored, or stained with ignominy. In countries fubject to a defpot, the whole tranfaction is often carried on in fecret : this is univerfally the cafe, where the court of inquifition is eftablished.-In fuch dark courts, the darkeft proceedings must be expected, and the most horrid oppreffions exercifed on the unhappy victims of a minifter's or inquifitor's difpleasure.

§4. The judges of England are upon a better establishment than in defpotic governments; they are men of the greatest learning and abilities, who have spent their whole lives in the ftudy of those laws by which they are to judge the people. Having been accustomed themfelves to plead at the bar, the laws must be familiar to them; the fubtle arts of pleaders can not entangle them; the brilliancy of rhetorick can not dazzlę them; the low chicanery of attornies can

not

hot puzzle them; the artifices and falfe reprefentations of the evidence can not mislead them; the mental refervations of

effes can not elude their penetration. When the hounds are at fault, the old sportsman can generally guess which way the game is gone.-Being advanced in life, they are difpaffionate; not living among thofe on whom they are to fit in judgment, they are free from perfonal and local party prejudices.-How different is the reprefentation given us of the judges in arbitrary governments! How different the judicial courts in France! There, any man who knows nothing either of the theory or practice of the laws, may purchase a feat on the tribunal, and dispose of the lives and property of all who appear before him. It matters not what his degree of knowledge or integrity may be, if he have only money enough to make the purchase. If he has no money, he may borrow, and with tolerable fuccefs may be able foon to pay the debt; because, whatever causes he determines, he may charge the party, E for

for whom in any civil fuit he gives a verdict, with a fum in proportion to the value of that property which is in litigation *. In the hiftory of Dauphiny, there is a charter granting one fifth of the property in litigation, as a recompence for hearing and determining the cause; and thus certainly it was in England, till, by the struggles of our barons, John was obliged to grant the great charter of our liberties, and to promise " nulli ven"demus, nulli negabimus, ant differe"mus rectum vel jufticiam."-In Eng-. land, the judges are rendered perfectly independent; their falaries are fuch, as to place them above the reach of those temptations which affault the indigent; and their commiffion being quamdiu fe bene gefferint, they have nothing to fear by acting uprightly, and judging according to their confciences.

In defpotic governments, where their commiffion runs durante bene placito, the judges must be altogether dependent

* Boulainvilliar's Parliaments of France, Let

ter 12.

on

on the defpot, or his minion, for the bread they eat, for their personal liberty, nay, for their lives.

What fecurity then, what confidence, can the fubject have, who ftands at their tribunal ?—If the judge fhould dare to give a sentence contrary to the inclination of the minion, the least he could expect would be difmiffion, moft likely banishment, and perhaps death. All then must be managed by intrigue, and the judge must be careful to obey the dictates, not of reason and justice, but of the defpot and his favorites.

In England the judge indeed prefides, but it is the law which judges. He regulates the whole proceedings; examines witneffes, or fuperintends their examination; defends the prifoner, while at his tribunal, from any unfair proceeding; fums up the evidence; and finally declares the fentence of the law.-In defpotic governments, the prifoner is altogether at the mercy of the judge, as the judge himself is at the mercy of the minifter.

§. 5. We come now to the palladium E 2

of

tunes.

of English liberty; to that which dif tinguishes us from all other nations of the earth; to that which, together with the habeas corpus, fecures to us, and muft fecure to us, as long as Englishmen retain their virtue, the quiet poffeffion of our perfonal liberty, our lives and forI need not inform an Englishman, that I mean our trial by juries.The judges are to declare the law, the jury is to determine upon the agreement between the law and the fact. It is the happinefs of an Englishman, that he can not now be convicted at the fuit of the Crown, of any capital offence, but by the prefentment of twelve of the grand jury, and the unanimous verdict of twelve of his peers, all of the vicinage, and all on oath.-The grand jury, being gentlemen of the beft figure in the county, returned by the sheriff to the court, are bound to enquire upon their oaths, whether there be fufficient caufe to call upon the party to answer the indictment. When they have heard the evidence for the prosecution, if they think it a ground

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