pact; and this, politically speaking, was the first kind of government.

These Rules or Laws, it is probable, were made with the joint confent, either tacit or exprest, of the whole body; and in all likelihood comprized every case which could arife in the narrow and circumfcribed intercourse then fubfifting among the members of the community.

But as the connections among mankind became more various and dilated, new cafes daily evolved and multiplied, for which no provisions were made by the scanty code of Laws then in being. In all fuch cafes therefore of a new impreffion, the magiftrate must of neceffity exercise a difcretionary power, or there must be a failure of juftice.

The

The exercife of fuch difcretion, in these instances, would of course be productive of those evils which were experienced before the inftitution of the Laws in being, and which thofe Laws were intended to prevent. The return of this inconvenience, would fuggeft a farther improvement in government.

Men would now perceive the neceffity of a chofen legislative body, who might be always at hand, to enact new Laws, with refpect to fresh contingencies, fo as to avoid a difcretionary power in the magiftrate, and at the fame time expedite the demands of juftice.

The legislative body were, no doubt, compofed of fuch, among the bulk of the people, as were moft eminent for their knowledge and virtue; and, in all probability, the magiftrates vefted with the judicial

VOL. I.

L

judicial and executive powers, made a part of the legislature.

:

It is likely, however, that the judicial and executive powers ftill remained united. No human institutions are completed on a fudden. We may conclude therefore that the feparation was made by degrees; and this was a farther advance towards improvement.

The magiftrates being under an obligation of judging according to known prefcribed Laws, and the legislative body being attentive to provide for all new cafes, they were in a great degree reftrained from deciding according to caprice or partiality. But being likewise intrufted with the executive power, they might fhew favour to, or indulge a prejudice against criminals or fuitors, by delaying execution, and other methods of undue procedure.

This inconvenience fuggefted the expedient of keeping the three powers of government separate and distinct. The firft branch had the power of making the Laws; the fecond expounded them, when made, by applying them to particular facts, and the third ordered the judgments of the fecond to be carried into execution. But the fupreme power naturally refided in the first.

Government now began to draw fomewhat nearer the perfection it has fince happily attained. But the works of human invention are progreffive, and are not completed but by degrees. At the laft improvement we are apt to fit down fatisfied, and vainly imagine that we have accomplished the end we propofed; but time soon unravels the fine-spun fyftem, and we find ourselves obliged to interweave fresh materials to repair the difordered texture.

Thus after the three powers were divided, and vested in different hands, inconveniences were ftill felt; which, while the concerns of mankind lay in a narrow compafs, were feldom experienced or attended to, and were confequently not provided for.

The judicial power being entrusted with the expofition of the Law, and as it depended on their judgment whether the cafe or fact fub lite, was or was not within the defcription of the Law, here was evidently a great latitude still left for the exercise of partiality or oppreffion.

Men of the most confummate knowledge and unbiaffed probity are still men. Be their judgment ever fo acute, their hearts ever fo uncorrupt, yet even too exquifite a fenfibility of nature may in some cases misguide the one and pervert the other. Affection and pre