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have a difficult conflict to maintain. Under such circumstances, it must be denominated absolute folly or frenzy to exasperate men's minds, by fears and jealousies respecting the accustomed indulgences of toleration: when toleration itself is become a thing hardly acquiesced in, and its restrictions are more felt than its allowances. A few words on this last topic will conclude the present paper.
The word toleration properly signifies endurance of what is disapproved, and also implies that it is endured by the power which has a right to restrain or abolish it. Thus a government tolerates some evils which it is competent to correct, because more mischief might ensue from its interference for that purpose; and thus we may suppose the Supreme Being tolerating wickedness on carth, because it promotes the great ends of his providence. But upon what ground can any human authority grant religious toleration in this sense? Were a consistent Protestant asked, in what body does the right reside, of pronouncing what is true Christianity? no one can suppose him to answer so absurdly as that it resides in an English Parliament: as little would he choose to assert, that the Parliament has a right to establish what is not true Christianity. All, therefore, that can be reasonably conceded to a state in this matter, is the authority of making a public provision for the maintenance of that form of religion which is approved by the majority of its members: but this by no means authorizes the conclusion that all others are erroneous, and only allowable as matter of favour or connivance. If religion be, as is universally admitted, a thing of the highest importance to individuals as well as to the public, a prohibition of adopting any mode of it, not injurious to the public peace, which private conscience inculcates, is not less impious than tyrannical,
The Archbishop of Canterbury, in a speech upon the Bill before us, which has been praised for its tolerant spirit, began with assuming that, to be sure, the separatists from the establishment were in an error, though it was one to which due indulgence ought to be extended. Perhaps the head of the national church thought it a duty of his station to hold this language with respect to sectaries and schismatics; otherwise, I should wonder that a Protestant divine, possessing learning aswell as candour,should dogmatically ascribe error to all differing from himself upon points which he must know to have been the subject of voluminous controversies among men distinguished for their profound researches into, ecclesiastical antiquity. The principal article of variance between the English and other Protestant churches relates to the episcopal function. Now his Grace could scarcely be ignorant, that within the pale of the church of England itself very different notions have prevailed as to the authority of bishops, and the necessity of episcopal ordination
ordination to confer validity on the administration of the sacraments. Even in the time of James and Charles I., the very learned and excellent primate, Usher, held, that bishops were su perior to presbyters in degree only, not in order, and that a true Christian church might be constituted by the latter alone. The extravagant and superstitious notions attached to the episcopal office by some high-churchmen were not of that indifferent nature as to be acquiesced in without opposition; and it is rather presumptuous to anathematize as erroneous all non-conformity founded on this difference of judgment.
The other diversities chiefly turn upon the forms of public worship, the use of liturgies in general, or of this or that particular liturgy, and the like; in which men may surely indulge their own peculiar tastes, without meriting an injurious appellation. To give the preference to that mode which habit and association have rendered most agreeable and edifying to the individual is not error, for it is no assertion of opinion, but merely following a law of our nature. A person was once asked, by a prelate, "What was the objection of Dissenters to the church service?" He re plied, that "doctrines are brought forward in it in which they do not concur." This was a sufficient answer as far as it went'; for the ever-memorable John Hales has justly said, “Whensoever false or suspected opinions are made a piece of the church litur gy, he that separates is not the schismatic." But as some sécts' do not object to the Common-prayer on this account, it would have been a better and more comprehensive reply, to have said, that they preferred their own form of worship, and saw no reason why they should change it for that of another. The full right of choice in religion, without either reason required or penalty incurred, is the only principle that a consistent Protestant can admit; and a gross defect will always be chargeable on the system of British liberty, till toleration be superseded by equality.
ART. III.-On the Independence of the Judges.
THE independence of the legal bench in England is always spoken of as one of the greatest boasts of our constitution, and the most substantial security for the rights and privileges of the subject; and it cannot be denied, that when the present condition of the Judges is compared with that when the crown had a power of dismissing them at pleasure, a great step appears to be gained to
wards the upright administration of justice. Their places and salaries are now secured for life, except upon an address from both Houses of Parliament, which nothing but flagrant misconduct on their parts can be supposed to produce; and they may pronounce sentence without any fear of the loss of dignity or emolument. While a due value is placed upon this improvement of our juridi cal system, it cannot be improper to bestow some consideration on its actual extent, and to enquire what that independence is, which in general terms the judges are said to possess: for it is often found that words of lax meaning convey in popular opinion a larger import than justly belong to them.
If by independence be signified such a state of feeling as renders a man indifferent to the favour of those in respect to whom he is called independent, we certainly should not expect to find it in a relation, in which one person is not only attached to another by the ties of gratitude for benefits already conferred, but looks up to him for future advancement. Although the situation which he holds be secured to him so that he cannot forfeit it through any subsequent displeasure of his benefactor; yet obligation for the past, and expectation for the future, cannot fail of exerting an influence over his mind incompatible with the indifference above supposed. No one will assert that a tenant who had received a beneficial lease for life from his landlord, and at the same time entertains hopes of being put by him in a better farm, is free from a bias in his landlord's favour. However independent in respect to his present tenure, he is scarcely less shackled by the bands of gratitude and interest, than the tenant at will by present necessity.
The Judges are both first appointed, and afterwards promoted, at the sole pleasure of the crown. The situation of all is rendered highly respectable, and decently lucrative; but difference enough, in rank and emolument, subsists among them to keep expectation alive in the majority, and prevent forgetfulness of the source whence advancement is to spring. Their condition, in this respect, is exactly similar to that of the bishops; they cannot be deprived, but they may be kept where they are; and an inferior on the juridical bench is no more certain of rising from his standing or professional merit alone, than a bishop of Landaff or Carlisle on the episcopal bench. It is true, eminent legal abilities have a better chance for reward than distinguished theological learning, because they are more necessary in those concerns on which men chiefly set their hearts; but the otium cum dignitate, which is the final object of almost all men of business, is to be obtained only by some of those appointments which are exclusively at the disposal of the crown or its ministers.
A Judge, then, comes to his office with a sense of obligation on his mind, and, not improbably, with a political character which
has recommended him to the notice of the court. He is enrolled in the list of crown-officers, and naturally looks up to the crown as the origin of his dignity and authority. He also, while occupying a lower seat on his bench, looks to the same point as an expectant of future promotion. Can it then with truth be affirm. ed, that because the court is void of the power to remove him, from the place he now holds, he lies under no temptation to favour it; when his career is but begun, and the great prize of his professional life is still in his view? Is not hope as certain in its operation on the human mind as fear? and may not the term dependence be as fitly applied to the influence exerted by one of these passions, as by that of the other?
Further-suppose this person to have reached the summit of his wishes, and to be secured in his station for life; still it is to be considered what is the process through which he has gone in attaining it, and with what impressions already made he receives it. If, during the course of his advancement (I put the case hypothetically) every step has been gained by an habitual attention to shape his language and conduct after the known inclinations of the men in power, and the last step of all has left him under a debt of gratitude to them, may not the existence of such a bias be inferred, as shall as effectually destroy his mental independence as the ulterior influence of hope and fear would do? Moreover, in a philosophical, though still in a practical sense, it may be affirmed, that the dominion of prejudice is in direct opposition to true independence, and we may enquire whether a vein of peculiar prejudices may not be traced in characters formed by long attend. ance on the courts of law. The common law of this realm is known to consist chiefly of strings of precedents and regulations made upon occasional suggestions, and to pay little respect to conclusions drawn from principles. Hence our great lawyers are usually found to be decided enemies to all general reasonings, to hold use and custom as synonymous with right and justice, and to regard what has been determined, as the same with what has been proved. Possibly this, upon the whole, is the safest line of con. duct in one who is not a legislator but an administrator of the laws. But there are cases in which a more enlarged way of thinking would be more conformable to what we have been taught to believe the spirit of the times,—a spirit of good sense and libe.. rality. Precedents may be brought from periods of tyranny and corruption which will justify acts of power the most inconsistent with the principles of a free state. If these are only to be numbered, and not weighed,-if arguments drawn from the plainest analogies of the constitution are to be refuted merely by pro- : ducing records and decisions,-we may live under the Brunswicks, subject to the maxims of the Tudors and Stuarts. Lawyers, there:
fore, who are incapable of extending their views to principles, and of taking part in the silent operation of reason to substitute unifor mity and consistency to contradiction and confusion, may be pronounced enslaved to professional prejudices, and destitute of true! independence of mind, however free from the bias of personal in terest.
How far Judges, even to a late period, have shown themselves influenced by a disposition to favour the crown in cases where its claims stand in opposition to the rights of the people, I shall leave to be determined by those who have taken an impartial survey of our domestic history during the present reign. It is perhaps enough to refer to the charges delivered, and the sentences pronounced, in cases of prosecution for public libels, to decide this question. These, in reality, afford the nicest test of a Judge's independence of spirit. In trials between the King and individuals respecting matters of property, the issue is of little consequence, since, if the result deprives the crown of a sum of money claimed, the deficiency in the revenue must be made up some other way. But an attack upon the measures of Government involves the credit of the ministers, and perhaps of the constitution itself; and to determine whether such an exercise of private censure in a public matter comes within the allowable limits of free discussion, or merits the appellation of a wicked and seditious libel, demands a judgment unbiassed by party and professional prejudices, and a soul superior to the allurements of avarice and ambition. A decision by mere precedents in these cases may be almost any thing that the Judge chooses to make it. Who can doubt that when the present Attorney-General instituted a prosecution against a newspaper for saying that the King's Successor would have the best possible opportunity of becoming popular, it would have been easy for the Judge who tried the cause to adduce authority for regarding such an inuendo as a scandalous libel on his Majesty's' person and Government? In Elizabeth's time there is little doubt but it would have cost the writer his ears. Lord Ellenboreugh, however, was too enlightened to apply such a doctrine to the present period, and justly gained applause for his charge on the occasion; but who will affirm that even in the reign of George III. some Lord Chief Justices would not have given a different judgment?
No factitious independence conferred on judges will therefore secure that impartiality of which we are in quest, for it is the result of character, not of station. A man who has obtained a high' office by a series of servile compliances, will continue servile and compliant through habit, though arrived at the summit of his expectations. One whose great object is building up a family, will under no circumstances lose sight of that object; and the higher