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If such power was in the least degree dangerous there, it must be utterly destructive to liberty here. For the people there have two securities against the undue exercise of this power by the crown, which are wanting with us, if the late act takes place. In the first place, if any injustice is done there, the person injured may bring his action against the offender, and have it tried before independent judges, who are [1]no parties in committing the injury. Here he must have it tried before dependent judges, being the men who granted the writ.
To say, that the cause is to be tried by a jury, can never reconcile men who have any idea of freedom, to such a power. For we know that sheriffs in almost every colony on this continent, are totally dependent on the crown; and packing of juries has been frequently practised even in the capital of the British empire. Even if juries are well inclined, we have too many instances of the influence of over-bearing unjust judges upon them. The brave and wise men who accomplished the revolution, thought the independency of judges essential to freedom.
The other security which the people have at home, but which we shall want here, is this.
If this power is abused there, the parliament, the grand resource of the oppressed people, is ready to afford relief. Redress of grievances must precede grants of money. But what regard can we expect to have paid to our assemblies, when they will not hold even the puny privilege of French parliaments---that of registering, before they are put in execution, the edicts that take away our money.
The second consideration above hinted at, is this. There is a confusion in our laws, that is quite unknown in Great-Britain. As this cannot be described in a more clear or exact manner, than has been done by the ingenious author of the history of New-York, I beg leave to use his words. “The state of our laws opens a door to much controversy. The uncertainty, with respect to them, renders property precarious, and greatly exposes us to the arbitrary decision of bad judges. The common law of England is generally received, together with such statutes as were enacted before we had a legislature of our own; but our courts exercise a sovereign authority, in determining what parts of the common and statute law ought to be extended: For it must be admitted, that the difference of circumstances necessarily requires us, in some cases, to reject the determination of both. In many instances, they have also extended even acts of parliament, passed since we had a distinct legislature, which is greatly
- ↑ The writs for searching houses in England, are to be granted “under the seal of the court of exchequer,” according to the statute---and that seal is kept by the chancellor of the exchequer. 4th Inst. p. 104.
