The Security And The Spirit Of Justice

“But there is no peace in the absence of justice.  It may subsist with divisions, disputes, and contrary opinions; but not with the commission of wrongs.  The injurious, and the injured, are, as implied in the very meaning of the terms, in a state of hostility.  Where men enjoy peace, they owe it either to their mutual regards and affections, or to the restraints of law.  Those are the happiest states which procure peace to their members by the first of these methods: but it is sufficiently uncommon to procure it even by the second.”

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“From whatever motive wrongs are committed, there are different particulars in which the injured may suffer.  He may suffer in his goods, in his person, or in the freedom of his conduct.  Nature has made him master of every action which is not injurious to others.  The laws of his particular society entitle him perhaps to a determinate station, and bestow on, him a certain share in the government of his country.  An injury, therefore, which in this respect puts him under any unjust restraint, may be called an infringement of his political rights.  Where the citizen is supposed to have rights of property and of station, and is protected in the exercise of them, he is said to be free; and the very restraints by which he is hindered from the commission of crimes, are a part of his liberty.

“No person is free, where any person is suffered to do wrong with impunity.  Even the despotic prince on his throne, is not an exception to this general rule.  He himself is a slave, the moment he pretends that force should decide any contest.  The disregard he throws on the rights of his people recoils on himself; and in the general uncertainty of all conditions, there is no tenure more precarious than his own.”

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“We must be contented to derive our freedom from a different source: to expect justice from the limits which are set to the powers of the magistrate, and to rely for protection on the laws which are made to secure the estate and the person of the subject. ... Without any establishments to preserve their manners, besides penal laws, and the restraints of police, they derive, from instinctive feelings, a love of integrity and candour, and from the very contagion of society itself, an esteem for what is honourable and praiseworthy.  They derive, from their union and joint opposition to foreign enemies, a zeal for their own community, and courage to maintain its rights.  If the frequent neglect of virtue, as a political object, tend to discredit the understandings of men, its lustre, and its frequency, as a spontaneous offspring of the heart, will restore the honours of our nature.”

- Adam Ferguson, from An Essay on the History of Civil Society

Vulnerability In Numbers -- Or The Danger Of It

“Where the sovereign power is reserved by the collected body, it appears unnecessary to think of additional establishments for securing the rights of the citizen. But it is difficult, if not impossible, for the collective body to exercise this power in a manner that supersedes the necessity of every other political caution.  If popular assemblies assume every function of government; and if, in the same tumultuous manner in which they can, with great propriety, express their feelings, the sense of their rights, and their animosity to foreign or domestic enemies, they pretend to deliberate on points of national conduct, or to decide questions of equity and justice; the public is exposed to manifold inconveniencies; and popular governments would, of all others, be the most subject to errors in administration, and to weakness in the execution of public measures.

“To avoid these disadvantages, the people are always contented to delegate part of their power.  They establish a senate to debate, and to prepare, if not to determine, questions that are brought to the collective body for a final resolution.  They commit the executive power to some council of this sort, or to a magistrate who presides in their meetings.  Under the use of this necessary and common expedient, even while democratical forms are most carefully guarded, there is one party of the few, another of the many.  One attacks, the other defends; and they are both ready to assume in their turns.  But though, in reality, a great danger to liberty arises on the part of the people themselves, who, in times of corruption, are easily made the instruments of usurpation and tyranny; yet, in the ordinary aspect of government, the executive carries an air of superiority, and the rights of the people seem always exposed to encroachment.

“Though, on the day that the Roman people were assembled, the senators mixed with the crowd, and the consul was no more than the servant of the multitude; yet, when this awful meeting was dissolved, the senators met to prescribe business for their sovereign, and the consul went armed with the axe and the rods, to teach every Roman, in his separate capacity, the submission which he owed to the state.  Thus, even where the collective body is sovereign, they are assembled only occasionally; and though, on such occasions, they determine every question relative to their rights and their interests as a people, and can assert their freedom with irresistible force; yet they do not think themselves, nor are they in reality, safe, without a more constant and more uniform power operating in their favour. The multitude is every where strong; but requires, for the safety of its members, when separate as well as when assembled, a head to direct and to employ its strength....”

“In democratical establishments, citizens, feeling themselves possessed of the sovereignty, are not equally anxious, with the subjects of other governments, to have their rights explained, or secured, by actual statute.  They trust to personal vigour, to the support of party, and to the sense of the public.  If the collective body perform the office of judge, as well as of legislator, they seldom think of devising rules for their own direction, and are found still more seldom to follow any determinate rule, after it is made.  They dispense, at one time, with what they enacted at another; and in their judicative, perhaps even more than in their legislative, capacity, are guided by passions and partialities that arise from circumstances of the case before them.”

- Adam Ferguson, from An Essay on the History of Civil Society

Not In Mere Laws

“No magistrate, whether temporary or hereditary, can with safety neglect that reputation for justice and equity, from which his authority, and the respect that is paid to his person, are in a great measure derived.  Nations, however, have been fortunate in the tenor, and in the execution of their laws, in proportion as they have admitted every order of the people, by representation or otherwise, to an actual share of the legislature. Under establishments of this sort, law is literally a treaty, to which the parties concerned have agreed, and have given their opinion in settling its terms.  The interests to be affected by a law, are likewise consulted in making it.  Every class propounds an objection, suggests an addition or an amendment of its own.  They proceed to adjust, by statute, every subject of controversy: and while they continue to enjoy their freedom, they continue to multiply laws, and to accumulate volumes, as if they could remove every possible ground of dispute, and were secure of their rights, merely by having put them in writing.

“Rome and England, under their mixed governments, the one inclining to democracy, and the other to monarchy, have proved the great legislators among nations.  The first has left the foundation, and great part of the superstructure of its civil code to the continent of Europe: the other, in its island, has carried the authority and government of law to a point of perfection, which they never before attained in the history of mankind.  Under such favourable establishments, known customs, the practice and decisions of courts, as well as positive statutes, acquire the authority of laws; and every proceeding is conducted by some fixed and determinate rule.

“The best and most effectual precautions are taken for the impartial application of rules to particular cases; and it is remarkable, that, in the two examples we have mentioned, a surprising coincidence is found in the singular methods of their jurisdiction. The people in both reserved in a manner the office of judgment to themselves, and brought the decision of civil rights, or of criminal questions, to the tribunal of peers, who, in judging of their fellow citizens, prescribed a condition of life for themselves.  It is not in mere laws, after all, that we are to look for the securities to justice, but in the powers by which these laws have been obtained, and without whose constant support they must fall to disuse.  Statutes serve to record the rights of a people, and speak the intention of parties to defend what the letter of the law has expressed; but without the vigour to maintain what is acknowledged as a right, the mere record, or the feeble intention, is of little avail.  A populace roused by oppression, or an order of men possessed of temporary advantage, have obtained many charters, concessions, and stipulations, in favour of their claims; but where no adequate preparation was made to preserve them, the written articles were often forgotten, together with the occasion on which they were framed.

“The history of England, and of every free country, abounds with the example of statutes enacted when the people or their representatives assembled, but never executed when the crown or the executive was left to itself.  The most equitable laws on paper are consistent with the utmost despotism in administration.  Even the form of trial by juries in England had its authority in law, while the proceedings of courts were arbitrary and oppressive.  We must admire, as the key stone of civil liberty, the statute which forces the secrets of every prison to be revealed, the cause of every commitment to be declared, and the person of the accused to be produced, that he may claim his enlargement, or his trial, within a limited time.  No wiser form was ever opposed to the abuses of power.  But it requires a fabric no less than the whole political constitution of Great Britain, a spirit no less than the refractory and turbulent zeal of this fortunate people, to secure its effects.  If even the safety of the person, and the tenure of property, which may be so well defined in the words of a statute, depend, for their preservation, on the vigour and jealousy of a free people, and on the degree of consideration which every order of the state maintains for itself; it is still more evident, that what we have called the political freedom, or the right of the individual to act in his station for himself and the public, cannot be made to rest on any other foundation.  The estate may be saved, and the person released, by the forms of a civil procedure; but the rights of the mind cannot be sustained by any other force but its own.”

- Adam Ferguson, from An Essay on the History of Civil Society