confined as the end of their inftitution can

allow; not to add, that in the viciffitudes incident to fuch a State, they might exert a very dangerous influence.

Befides, that awe which is naturally inspired by fuch Bodies, and is fo useful when it is neceffary to ftrengthen the feebleness of the laws, would not only be fuperfluous in a State where the whole power of the Nation is on their fide, but would moreover have the mischievous tendency to introduce another fort of fear than that which men must be taught to entertain. Those mighty Tribunals, I am willing to fuppofe, would preferve, in all fituations of affairs, that integrity which distinguishes them in States of a different Conftitution; they never

Judges, or Commissaires, to try fuch Men as they had refolved

to ruin.

Thefe, however, are only local advantages, and relative to the nature of the French Government, which is an uncontrouled Monarchy, with confiderable remains of Aristocracy. But in a free State, fuch a powerful Body of Men, vefted with the power of deciding on the life, honour, and property, of the Citizens, would, as will be prefently shown, be productive of very dangerous political confequences; and the more fo, if fuch Judges had, as is the cafe all over the world except in the British dominions, the power of deciding both upon the matter of law, and the matter of fact.

would inquire after the influence, ftill lefs the political fentiments, of those whose fate they were called to decide; but thefe 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 observance of the laws is not the only task of prudence: the Citizen called upon to defend, in the sphere where fortune has placed him, his own rights, and thofe of the Nation itself, would dread the confequences 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 circumstances 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 overawes injustice, where the law has been unable to fecure any other check, I mean the reproaches of the Public.

And these his fears would be confiderably heightened, if, by an admiffion of the Jurifprudence received among certain Nations, he beheld those Tribunals, already fo formidable, wrap themselves up in mystery, and be made, as it were, inacceffible. (a)

He could not think, without dismay, of those vaft prisons within which he is one day perhaps to be immured;—of those proceedings, unknown to him, which he must go through;-of that total feclufion from the society

(a) An allufion is made here to the fecrecy with which the proceedings in the administration 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 soon 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 appointed to examine him, with a Clerk to take his answers in writing, and he ftands alone before them in fome private room in the prifon. The witnesses are to be examined apart, and he is not admitted to see them till their evidence is clofed: they are then confronted together before all the Judges, to the end that the witnesses may see if the prifoner is really the Man they meant in giving their respective evidences; and that the prisoner may object to fuch of them as he shall think proper: this done, the depositions of such witnesses as 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 T

of other Men;-or 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 fhall at least fufpect, and in which his spirit, broken down by folitude, fhall receive no fupport, either from the counfels of his friends, or from the looks of thofe who fhall offer vows for his deliverance.

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The fecurity of the individual, and the consciousness of that fecurity, fecurity, being then.

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 affistance of a Counsel which is now granted him, prepare for his juftification. The Judges are, as has been said 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 courfe of the proceedings, fuch as admitting witneffes to be heard in behalf of the prifoner, &c.

This mode of criminal Judicature may be useful. as to the bare difcovering of truth, a thing which I do not propose to discuss here; but, at the fame time, a prifoner is so compleatly delivered up into the hands of the Judges, who even can detain him almost at pleasure by multiplying or delaying his examinations, that, wherever it is adopted, Men are as much afraid of being accufed, as of being guilty, and 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.

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,

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 independant Body; ftill lefs in him who is already the truftee 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 all their different forms, must be fuch as to infpire refpect, but never terror; and the cafes ought to be so accurately ascertained, the limits fo clearly marked, as that neither the Executive power, nor the Judges, may ever hope to transgress them with impunity.

Lastly, fince we must abfolutely pay a price for the advantage of living in fociety, not only by relinquishing a part of our natural liberty, which, in a wifely framed Government,