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William Paley.

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they who, whilst they change this part of the sys-
tem, would retain the rest. If any Englishman
expect more happiness to his country under a re-
public, he may very consistently recommend a
new-modelling of elections to parliament; because,
if the King and House of Lords were laid aside,
the present disproportionate representation would
produce nothing but a confused and ill-digested
oligarchy. In like manner we have a controversy
%vith those writers who insist upon representation
as a natural right :* we consider it so far only as



* If this right be natural, no doubt it must be equal ;
and the right, we may add, of one sex, as well as of the



a right at all, as it conduces to public utihty ; that
is, as it contributes to the establishment of good
laws, or as it secures to the people the just ad-
ministration of these laws. These efl'ects depend
upon the disposition and abilities of the national
counsellors. Wherefore, if men the most likely
by their qualifications to know and to promote the
pubUc interest, be actually returned to parliament,
it signifies httle who return them. If the proper-
est persons be elected, what matters it by whom
they are elected 1 At least, no prudent statesman
would subvert long-estabhshed or even settled
rules of representation, without a prospect of pro-
curing wiser or better representatives. This then
being well observed, let us, before we seek to ob-
tain any thing more, consider duly what we al-
ready have. We have a House of Commons
composed of five hundred and fifty-eight mem-
bers, in which number are found the most
considerable landholders and merchants of the
kingdom ; the heads of the army, the navy, and
the law ; the occupiers of great offices in the state ;
together with many private individuals, eminent
by their knowledge, eloquence, or activity. Now
if the country be not sate in such hands, in whose
may it confide its interests "? If such a number of
such men be liable to the influence of corrupt mo-
tives, what assembly of men will be secure from
the same danger '? Does any new scheme of re-
presentation promise to coUect together more
wisdom, or to produce finner integrity 1 In this
view of the subject, and attending not to ideas of
order and proportion (of which many minds are
much entmioured,) but to efiects alone, we may
discover just excuses for those parts of the present
representation which appear to a hasty observer
most exceptionable and absurd. It should be re-
membered, as a maxim extremely applicable to
this subject, that no order or assembly of men
whatever can long maintain their place and au-
thority in a mixed government, of which the mem-
bers do not individually possess a respectable share
of personal importance. Now whatever may be
the defects of the present arrangement, it infalli-
bly secures a great weight of property to the
House of Commons, by rendering many seats in
that house accessible to men of large fortunes, and
to such men alone. By which means those cha-
racters are engaged in the defence of the separate
rights and interests of this branch of the legisla-
ture, that are best able to support its claims. The
constitution of most of the small boroughs, espe-
cially the burgage tenure, contributes, though un-
designedly, to the same effect : for the appoint-
ment of the representatives we find commonly
annexed to certain great inheritances. Elections
purely popular are in this respect uncertain : in
times of tranquillity, the natural ascendancy of
wealth will prevail ; but when the minds of men
are inflamed by pohtical dissensions., this in-
fluence often yields to more impetuous motives. —
The variety of tenures and qualifications, upon
which the right of voting is founded, appears to
me a recormnendation of the mode which now
subsists, as it tends to introduce into parliament a



other. Whereas every plan of representation that we
have heard of, begins by excluding the votes of women ;
thus cutting off, at a single stroke, one half of the pub-
lic from a risht which is asserted to be inherent in all ;
a right too, as some represent it, not only universal, but
unalienable, and indefeasible, and imprescriptible.



1.-28



MORAL AND POLITICAL PHILOSOPHY.



corresponding mixture of characters and profes-
sions. It has been long observed that conspicuous
abilities are most frequently found wjth the re-
presentatives of small boroughs. And this is no-
thing more than what the laws of human conduct
might teach us to expect : when such boroughs
are set to sale, those men are likely to become pur-
chasers, who are enabled by their talents to make
the best of their bargain : when aseat is not sold, but
given by the opulent proprietor of a burgage tenure,
the patron finds his own interest consulted, by
the reputation and abilities of the member whom
he noniinatcs. If certain of the nobility hold the
appointment of some part of the House of Com-
mons, it serves to maintain that alliance between
the two branches of the legislature wliich no good
citizen would wish to see dissevered : it helps to
keep the government of the country in the House
of Commons, in which it would not perhaps long
contitme to reside, if so powerful and wealthy a
part of the nation as the peerage compose, were
excluded from all share and interest in its con-
stitution. If there be a few boroughs so circum-
stanced as to he at the disposal of the crown,
whilst the number of such is known and small,
they may be tolerated with little danger. For
where would be the impropriety or the inconve-
niency, if the king at once should nominate a
limited number of his servants to seats in parlia-
ment ; or, what is the same thing, if seats in par-
liament were annexed to the possession of certain
of the most efficient and responsible offices in the
state 1 The present representation, after all these
deductions, and under the confusion in which it
confessedly lies, is still in such a degree popular,
or rather the representatives are so connected
with the mass of the community by a society of
interests and passions, tiiat the will of the people,
when it is determined, permanent and general,
almost always at length prevails.

Upon the whole, in the several plans which
have been suggested, of an equal or a reformed
representation, it will be difficult to discover any
proposal that has a tendency to throw more of the
business of the nation into the House of Com-
mons, or to collect a set of men more fit to trans-
act that business, or in general more interested in
the national happiness and prosperity. One con-
sequence, however, may be expected from these
projects, namely, " less flexibility to the influ-
ence of the crown." And since the diminution
of this influence is the declared and perhaps the
sole design of the various schemes that have been
produced, whether for regulating the elections,
contracting the duration, or for purifying the
constitution of parliament by the exclusion of
placemen and pensioners ; it is obvious to remark,
that the more apt and natural, as well as the more
safe and quiet way of attaining the same end,
would be by a direct reduction of the patronage of
the crown, which might be eflected to a certain
extent without hazarding further consequences.
Superfluous and exorbitant emoluments of office
may not only be su]ii)ress(^d for the present ; but
provisions of law be di'\iseil, which should for the
future restrain within certain limits the numlier
and value of the offices in the donation of the king.
But wliilst we dispute concerning different
schemes of reformation, all directed to the same
end, a previous tloubt occurs in the debate, whe-
ther the end itself be good or safe : whether the
influence so loudly complained ofj can be destroy-



ed, or even much diminished, without danger to
the state. Whilst the zeal of some men beholds
this influence with a jealousy wliich nothing but
its entire abolition can appease, many wise and
virtuous politicians deem a considerable portion of
it to be as necessary a part of the British consti-
tution, as any other ingredient in the composition ;
to be that, indeed, which gives cohesion and so-
lidity to the whole. Were the measures of go-
vernment, say they, opposed from nothing but
jirinciple, government ought to have nothing but
the rectitude of its measures to support them:
but since opposition springs from other motives,
government must possess an influence to counter-
act these motives ; to produce, not a bias of the
passions, but a neutrality ; — it must have some
weight to cast into the scale, to set the balance
even. It is the nature of power, always to press
upon the boundaries wliich confine it. Licen-
tiousness, faction, envy, mipatience of control or
inferiority ; the secret pleasure of mortifying the
great, or the hope of dispossessing thejii, a con-
stant willingness to question and thwart whatever
is dictated or even proposed by another ; a dispo-
sition common to all bodies of men, to extend the
claims and authority of their orders ; above all,
that love of power, and of showing it, which
resides more or less in every human breast, and
wliich, in popular assemblies, is inflamed, like
every other passion, by communication and en-
couragement : these motives, added to private
designs and resentments, clierished also by popu-
lar acclamation, and operatuig upon the great
share of power already possessed by the House of
Commons, might induce a majority, or, at least a
large party of men in that assembly, to unite in
endeavouring to draw to themselves the whole go-
vernment oi'the state : or, at least, so to obstruct
the conduct of public affairs, by a wanton and
perverse opposition, as to render it impossible for
the wisest statesman to carry forwards the business
of the nation with success or satisfaction.

Some passages of our national history afford
grounds for these apprehensions. — Before the ac-
cession of James the First, or, at least, during the
reigns of his three immediate predecessors, the
government of England was a government by
force ; that is, the king carried his measures in
parliament by iniimidation. A sense of jiersonal
danger kept the meml)ers of the House of Com-
mons in subjection. A conjunction of fortunate
causes delivered, at last, the parliament and nation
from slavery. That overbearing system wluch
had declined in the hands of James, expired early
in the reign of his son. After the Restoration,
there succeeded in its place, and, since the Revo-
lution, has been methodically pursued, the more
successful expedient of influence. Now we re-
member what passed between the loss of terror,
and the establishment of influence. The trans-
actions of that interval, whatever we may think of
their occasion or effect, no friend of regal govern-
ment would wish to see revived. — But tlie aflairs
of this kingdom afford a more recent attestation
to the same doctrine. In the British colonics of
North America, the late assemblies possessed
much of the power and constitution of our House
of Commons. The khig and government of
Great Britain held no patronage in the country,
which could create attachment and influence .suf-
ficient to counteract that restless arrogating spirit,
which, in popular assemblies, when left to itself.



OF THE ADMINISTRATION OF JUSTICE.



129



will never brook an authority that checks and in-
tertcrcs with its own. 'I'o tliis cause, cxciteil per-
haps bv some unseasonable provocations, we may
attribute, as to their true and proper original, (we
will not say the misfortunes, but) the changes that
have taken place in the British empire. 'I'he ad-
monition which such examples suggest, will have
its weight with those who are content with the
general frame of the English constitution; and
who consider stability amongst the first perfections
of any government.

We protest, however, against any construction
by which what is here said shall be attempted to
be applied to the justilication of bribery, or of any
clandestine reward or solicitation whatever. The
very secrecy of such negotiations confesses or be-
gets a consciousness of guilt ; which when the
mind is once taught to endure without uneasiness,
the character is prepared for every compliance :
and there is the greater danger in these corrupt
practices, as the extent of their operation is un-
limited and unknown. Our apology relates solely
to that inliuence, which results trom the accept-
ance or expectation of public preferments. Nor
does the intiucnce, which we defend, require any
sacrifice of personal probity. In political, above
all other subjects, the arguments or rather the
conjectures on each side of the question, are
often so equally poised, that the wisest judgments
may be held in suspense : these I call subjects of
indifference. But again; when the subject is
not indifferent in itself, it will appear such to a
great part of those to whom it is proposed, for want
of information, or reflection, or experience, or of
capacity to collect and weigh the reasons by which
either side is supported. These are subjects of
apparent indifference. This indifference occurs
still more ircqucntly in personal contests ; in
which we do not often discover any reason of public
utility for the preference of one competitor to
another. These cases compose the province of
influence : that is, the decision in these cases will
ine\itably be determined by influence of some sort
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 diflerent quarter. If motives of expectation and
gratitude be withdrawn!, other motives will suc-
ceed in their place, acting probably in an opposite
direction, but equally irrelative and external to
the proper merits of the question. There exist,
as we have seen, passions in the human heart,
which will always make a strong party against
the executive power of a mixed government. Ac-
cording as the disposition of parliament is friendly
or adverse to the recommendation of the crown in
matters which are really or apparently indiflerent,
as indiiierence hath been now explained, the bu-
siness of the empire will be transacted with ease
and convenience, or embarrassed with endless
contention and difficulty. Nor is it a conclusion
founded in justice, or wan-anted by experience,
that because men are induced by -v iews of interest
to yield their consent to measures concerning
which their judgment decides nothing, they may
be brought by the same influence to act in deU-
berate opposition to knowledge and duty. Who-
ever reviews the operations of government in this
country since the Revolution, will find few even
of the most questionable measures of administra-
tion, about which the best-instructed judgment
might not have doubted at the time ; but of which
R



we may affirm with certainty, they were indiffer-
ent to the greatest part of those who concurred
in them. Jr'rom the success, or the facility, with
which they who dealt out the patronage of the
crown carried measures like these, ought we to
conclude, that a similar application of honours
and emoluments would procure the consent of
parliaments to counsels evidently detrimental to
the common welfare ? Is there not, on the con-
trary, more reason to fear, that the prerogative, if
deprived of influence, would not be long able to sup-
port itself \ For when we reflect upon the power
of the House of Commons to extort a compliance
with its resolution from the other parts of the le-
gislature ; or to put to death the constitution by a
refusal of the annual grants of money to the sup-
port of the necessary functions of govenmient ; —
when we reflect also what moti\es there arc,
which, in the vicissitudes of political interests and
passions, may one day arm and point this power
against the executive magistrate ; when we attend
to these considerations, we shall be led jierhaps to
acknowledge, that there is not more of paradox
than of truth in that important, but much decried
apothegm, "that an independent parliament is
incompatible with the existence of the monarchy."



CHAPTER VIII.
Of the Administration of Justice.

The tirst maxim of a free state is, that the laws
be made by one set of men, and administered by
another; in other words, that the legislative and
judicial characters be kept sejiarate. vVhen (hes5
offices are united in the sam'e person or assembly,
particular laws are made for particular cases,
springing oftentimes from partial motives, and di-
rected to private ends : whilst they are kept sepa-
rate, general laws are made by one body of men,
without foreseeing whom they may alVect ; and,
when made, must be applied by the other, let them
affect whom they will.

For the sake of illustration, k t it be supposed,
in this country, either that, parliaments being laid
aside, the courts of Westminster-Hall made their
own laws; or that the tvs'o houses of parliiunent,
with the King at their head, tried and decided
causes at their bar : it is evident, in the first place,
that the decisions of such a judicature would be so
many laws; and in the second jjlace, that, when
the parties and the interests to be aticcted by the
law were known, the inclinations of the law-ma-
kers would inevitably attach to one side or the
other ; and that where there were neither any fix-
ed rules to regulate their determinations, nor any
superior power to control their proceedings, these
inclinations would interfere with the integrity of
public justice. The consequence of which must
be, that the subjects of such a constitution would
Uve either vvithout any constant laws, that is, with-
out any known pre-established rules of adjudica-
tion whatever ; or under laws made for particular
persons, and partaking of the contradictions and
iniquity of the motives to which they owed their
origin.

Which dangers, by the division of the legisla-
tive and judicial functions, are in this country ef-
fectually provided against. Parhament knows not
the individuals upon whom its acts will operate ;
it has no cases or parties before it ; no private de-



130



MORAL AND POLITICAL PHILOSOPHY.



signs to serve; consequently, its resolutions will
be suggested by the consideration of universal cl-
t'ects and tendencies, which always produces im-
j)avtial, and coniinonly advantageous regulations.
When laws are made, courts of justice, whatever
be the disposition of the judges, must abide by
them : for the legislative being necessarily the su-
preme power of the state, the judicial and every
other power is accountable to that ; and it cannot
be doubted that the persons who possess the sove-
reign authority of government, will be tenacious
of'tlie laws which they themselves prescribe, and
sufliiiiutly jealous of the assumption of dispensing
and legislative power by any others.

I'his fundamental rule of civil jurisprudence is
violated in the case of acts of attainder or confis-
cation, in l)ills of pains and penalties, and in all
e.v postfaclo laws whatever, in which jjarliament
exercises the double office of legislature and judge.
And whoever either understands the value of the
rule itself, or collects the history of those instances
in which it has been invaded, will be induced, 1
believe, to acknowledge, that it had been wiser and
safer never to have departed from it. He will con-
fess, 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 ofl'ender, let
him go unpunished; let the legislature, admonish-
ed of the defect of the laws, provide against the
commission of future crimes of the same sort. The
escape of one delinquent can never produce so
much harm to the community as may arise from
the infraction of a rule upon which the purity of
public justice, and the existence of civil liberty,
essentially depend.

The next security for the impartial administra-
tion of justice, especially in decisions to which go-
vernment is a party, is the independency of the
judges. As protection against every illegal attack
upon the rights of the subject by the servants of
the crown is to be sought for from these tribunals,
the judges of the land become not unfrcquently
the arbitrators between the king and the people,
on which account they ought to be independent
of either ; or, what is the same thing, equally de-
pendent upon both ; that is, if they be appointed
by the one, they should be removeable only by the
other. This was the policy which dictated that
memorable improvement in our constitution, by
which the judges, who before the Revolution held
their offices during the pleasure of the king, can
now be deprived of them only by an address from
both houses of j)arliament ; as the most regular,
solemn, and authentic way, by which the dissatis-
faction of the people can be expressed. To make
this independency of the judges complete, the
public salaries of their office ought not only to be
certain both in amount and continuance, but so
lilieral as to secure their integrity from the tempta-
tion of secret bribes ; which liberality will answer
also the further purpose of preserving their juris-
diction from contempt, and their characters from
suspicion ; as well as of rendering the office worthy
of the ambition of men of eminence in their pro-
fession.

A third precaution to be observed in the forma-
tion of courts of justice is, that the number of the
judges be small. For, beside that the violence and
tumult inseparable from large assemblies are in-
consistent with the patience, method, and atten-
tion requisite in judicial investigations; beside that



all passions and prejudices act with augmented
force upon a collected niidtitude ; beside these ob-
jections, judges, when they are numerous, divide
the shame of an unjust determination ; they shel-
ter themselves under one another's example ; each
man thinks his own character hid in the crowd ;
for which reason, the judges ought always to be
so few, as that the conduct of each may be con-
spicuous to public observati9n ; that each may be
responsible in his separate and particular reputa-
tion for the decisions in which he concurs. The
truth of the above remark has been exemplified in
this country, in the efiects 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 thir-
teen members. This alteration, simply by re-
ducing the number of the judges, and, in conse-
quence of 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. — 1 should prefer an
even to an odd nmnber of judges, and lour to al-
most any other number : for in this number, beside
that it sufficiently consults the idea of separate re-
sponsibility, nothing can be decided but by a ma-
jority 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 au-
thority, not less than tliis. If the court be equally
divided, nothing is done ; things remain as they
were ; with some inconveniency, indeed, to the par-
tics, 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, apertisjbribus ; 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
impartial ; and will commonly guide that of the
public. The most corrupt judge will fear to in-
dulge his dishonest wishes in the presence of such
an assembly : he must encounter, what few can
support, the censure of his equals and companions,
together with the indignation and reproaches of
his country.

Something is also gained to the public by ap-
pointing two or three courts of concurrent jurisdic-
tion, that it may remain in the option of the suitor
to which he will resort. By this means a tribu-
nal 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



Online LibraryWilliam PaleyThe works of William Paley ... : Containing his life, Moral and political philosophy, Evidences of Christianity, Natural theology, Tracts, Horæ Paulinæ, Clergyman's companion, and sermons, printed verbatim from the original editions .. → online text (page 32 of 161)