general question-ought the party to account-was submitted for its determination. But the adjustment of the accounts was submitted to auditors, instead of being tried by a jury. If, upon any article in account, the auditors cannot agree; or, if agreeing, the parties are not satisfied; then, upon each point, so litigated, a separate and distinct issue may be taken, and that issue must be tried by a jury. In this manner, a hundred issues may be joined in the same cause, and tried separately by as many juries; but the general statement of the disputed accounts still remains before the auditors, and by them the general result from the whole must be formed and ascertained. This mode of liquidating accounts judicially at common law, is obviously exposed to many disadvantages and delays; and, for this reason, the action of account has, in a great measure, fallen into disuse. In England, the parties in unsettled and litigated accounts have recourse to chancery; in Pennsylvania, to arbitrators, or to jurors acting in the character of arbitrators.

The numerous embarrassments, which arise from the want of a proper commercial forum, are well known and severely felt both by the gentlemen of the bar, and by the gentlemen of the exchange.

ment.

Impressed with these truths, the committee who were appointed to report a draught of a constitution for the consideration of the late convention of Pennsylvania, in,cluded, in their report, the plan of a chancery establishThe convention thought it improper to fix that establishment as a part of the constitution, but have given ample powers to the legislature to adopt that or any similar one, and to model and alter it as the sage instructions of time may direct.

Impressed with these truths, which I have both witnessed and experienced, I have thought it my duty to bring this 'important subject fully into your view. Viewed in a commercial light, Pennsylvania, and particularly her metropolis, attracts solicitous attention both on this and on the other side of the Atlantick. Every friend to Pennsylvania, every friend to her metropolis, every enlightened friend to the interests of commerce, must wish ardently to see her commercial establishments complete. These observations apply to the United States on a scale still more extensive; and, as applied to them, therefore, acquire still an additional degree of importance.

With these observations I conclude, at last, my minute delineation-if drawn in a more masterly manner, it would be interesting as well as minute-of the juridical establishments of the United States and of Pennsylva

nia.

CHAPTER IV.

OF THE NATURE OF COURTS.

THE next subjects of my remarks are, the nature,

and the constituent parts of courts.

That the judicial department should be independent, is a principle, which, in a former part of my lectures, 'I had an opportunity of stating, explaining, and enforcing at large. In the review which we have now made of that department, as established in the United States and in this commonwealth, we see what a strict and uniform regard has been paid to the practical observance of this very important principle. To neither of the constitutions is a judicial magistrate known, who holds his office by a tenure less secure or less respectable than that of his own good behaviour.

All courts should be open. This is one of the rules, which, by the constitution of Pennsylvania, is rendered

inviolable by the legislature itself. It is a rule of the highest moment.

The place of administering justice was originally at the gates of the cities-in other words, in the presence of all the people. Such was the practice in the days of Job. By Moses also, of legislators the first and wisest, the same ancient custom is mentioned. Homer speaks of it as subsisting in the heroick ages. In some countries, this simple and undisguised mode is still observed. f

с

d

e

Among the Saxons, as we are informed by Selden, their courts, like the heliastick court at Athens, were, for the most part, kept in the open air.

g

By the ancient Romans, trials were held in publick, in the presence of the accused, and of all who wished to hear them. This procedure was open and noble; says the writer who mentions it; it breathed Roman magnanimity.

h

In France, too, as appears, we are told, from some old manuscript law books, criminal processes were anciently carried on in publick, and in a form not very different from the publick judgments of the Romans. "The witnesses," says Beaumanoir, one of the oldest writers on the laws of France, " ought to give their testimony in open court." i

d Gen. xxiii. 18.

e Il. 1. 18. v.

c Job xxix. 7. f 1. Gog. Or. L. 28. g Bac. on Gov. 10.

i Mont. Sp. L. b. 28. c. 34.

497.

h Com. on Bec, c. 22.

All trials, says Beccaria, should be publick; that opinion, which is the best, or, perhaps, the only cement of society, may curb the authority of the powerful, and the passions of the judge; and that the people, inspired with courage, may say, "We are not slaves; we are protected by the laws."

"Let not," says my Lord Bacon, k in the same spirit of sound sense, "decrees issue in silence: let judges give the reasons of their judgments: let them do this openly; that what is unrestrained in point of authority, may be circumscribed by a regard to character and fame."

But why, it may be asked, are examples produced in such numbers-why do we cite authorities of so much weight, in order to establish a principle, in itself so extremely plain? Is it not selfevident, that, in a court of justice, every one is entitled to a publick trial? Why, then, refer us to instances, in Asia, in Greece, in Rome, in France, of the enjoyment of a selfevident right?

Because, in Asia, in Greece, in Rome, in France, too, till very lately, the enjoyment of this selfevident right has been lost. Liberty, indeed, says it is selfevident: but tyranny holds a contrary language; and unfortunately for the human race, the voice of tyranny has been more loud and more powerful than the voice of freedom.

To

states as well as to individuals, the lesson is salutary-let those, who stand, take heed lest they fall.

j C. 14.

k

1. Ld. Bac. 252. Aph. 38.

VOL. II.

P P