were called to decide; but these advantages not being founded in the neceffity of things, and the power of fuch Judges feeming to exempt them from being fo very virtuous, Men would be in danger of taking up the fatal opinion, that the fimple exact obfervance of the laws is not the only task of prudence: the Citizen called upon to defend, in the fphere where fortune has placed him, his own rights, and those of the Nation itself, would dread the confequence of even a lawful conduct, and though encouraged by the law, might defert himself when he came to behold its Minifters.

In the affembly of those who fit as his Judges, the Citizen might poffibly defcry no enemies: but neither would he fee any Man whom a fimilarity of circumftances might engage to take a concern in his fate and their rank, especially when joined with their numbers, would appear to him, to lift them above that which over-awes injuftice, where the law has been unable to secure any other check, I mean the reproaches of the Public.

And these his fears would be confiderably heightened, if, by the admiffion of the Jurif prudence received among certain Nations, he beheld thofe Tribunals, already fo formidable,

wrap themselves up in mystery, and be made, as it were, inacceffible (a).

He could not think, without difmay, of thofe vaft prifons within which he is one day perhaps to be immured- of those proceedings, unknown to him, through which he is to pafs of that total feclufion from the fociety of other Men-nor of thofe long and fecret examinations, in which, abandoned wholly to himself, he will have nothing but a paffive defence to oppofe to the artfully varied queftions of Men, whofe intentions he shall at least

(a) An allufion is made here to the fecrecy with which the proceedings, in the adminiftration of criminal Juftice, are to be carried on, according to the rules of the civil law, which in that respect are adopted over all Europe. As foon as the prisoner is committed, he is debarred of the fight of every body, till he has gone through his feveral examinations. One or two Judges are ap. pointed to examine him, with a Clerk to take his anfwers in writing and he ftands alone before them in fome private room in the prifon. The witneffes are to admitted to fee them

be examined apart, and he is not till their evidence is closed: they are then confronted together before all the Judges, to the end that the witnef fes may fee if the prifoner is really the Man they meant in giving their refpective evidences, and that the prifoner may object to fuch of them as he fhall think proper. This done, the depofitions of thofe witneffes who are adjudged upon trial to be exceptionable, are fet afide: the depofitions of the others are to be laid before the Judges, as well as the answers of the prifoner, who has

mistrust, and in which his fpirits, broken down. by folitude, fhall receive no fupport, either from the counfels of his friends, or the looks of those who fhall offer up vows for his deliverance.

The fecurity of the individual, and the consciousness of that fecurity, being then equally effential to the enjoyment of liberty, and neceffary for the preservation of it, these two points must never be left out of fight, in the establishment of a judicial power; and I conceive that they neceffarily lead to the following maxims.

been previously called upon to confirm or deny them in their prefence; and a copy of the whole is delivered to him, that he may, with the affiftance of a Counsel, which is now granted him, prepare for his juftification. The judges are, as has been faid before, to decide both upon the matter of law and the matter of fact, as well as upon all incidents that may arife during the course of the proceedings, fuch as admitting witneffes to be heard in behalf of the prisoner, &c.

This mode of criminal Judicature may be useful as to the bare discovering of truth, a thing which I do not propose to discuss here; but, at the fame time, a prifoner is fo completely delivered up into the hands of the Judges, who even can detain him almost at pleasure by multiplying or delaying his examinations, that, whenever it is adopted, Men are almoft as much afraid of being accused, as of being guilty, and especially grow very cautious how they interfere in public matters. We fhall fee presently how the Trial by Jury, peculiar to the English Nation, is admirably adapted to the nature of a free State.

In the first place I fhall remind the reader of what has been laid down above, that the judicial authority ought never to refide in an independent Body; ftill lefs in him who is already the trustee of the executive power.

Secondly, the party accufed ought to be provided with every poffible means of defence. Above all things, the whole proceedings ought to be public. The Courts, and their different forms, must be fuch as to infpire refpect, but never terror; and the cafes ought to be fo accurately afcertained, the limits fo clearly marked, as that neither the executive power, nor the Judges, may ever hope to tranfgrefs them with impunity.

In fine, fince we muft abfolutely pay a price for the advantage of living in fociety, not only by relinquishing fome fhare of our natural li berty (a furrender which, in a wifely framed Government, a wife Man will make without reluctance) but even alfo by refigning part of even our perfonal fecurity, in a word, fince all judicial power is an evil, though a neceffary one, no care fhould be omitted to reduce as far as poffible the dangers of it.

And as there is however a period at which the prudence of Man muft ftop, at which the fafety of the individual must be given up, and

the law is to refign him over to the judgment of a few perfons, that is, to speak plainly, to a decifion in fome fenfe arbitrary, it is neceffary that this law fhould narrow as far as poffible this fphere of peril, and so order matters, that when the subject fhall happen to be fummoned to the decifion of his fate by the fallible confcience of a few of his fellow-creatures, he may always find in them advocates, and never adverfaries.

A

CHAP. XIII.

The Subject continued.

FTER having offered to the reader, in the preceding Chapter, fuch general confiderations as I thought neceffary, in order to convey a juster idea of the fpirit of the criminal Judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particulars.

When a perfon is charged with a crime, the Magiftrate, who is called in England a Justice of the Peace, iffues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him: he muft then hear him, and take down in writ