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