Where the people, as in some larger communities, have only a share in the legislature, they cannot overwhelm the collateral powers, who having likewise a share, are in condition to defend themselves: where they act only by their representatives, their force may be uniformly employed. And they may make part in a constitution of government more lasting than any of those in which the people possessing or pretending to the entire legislature, are, when assembled, the tyrants, and, when dispersed, the slaves, of a distempered state. In governments properly mixed, the popular interest, finding a counterpoise in that of the prince or of the nobles, a balance is actually established between them, in which the public freedom and the public order are made to consist.
From some such casual arrangement of different interests, all the varieties of mixed government proceed; and on the degree of consideration which every separate interest can procure to itself, depends the equity of the laws they enact, and the necessity they are able to impose, of adhering strictly to the terms of law in its execution. States are accordingly unequally qualified to conduct the business of legislation, and unequally fortunate in the completeness, and regular observance, of their civil code.
In democratical establishments, citizens, feeling themselves possessed of the sovereignty, are not equally anxious, with the subject 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 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.
But under the simplest governments of a different sort, whether aristocracy or monarchy, there is a necessity for law, and there are a variety of interests to be adjusted in framing every statute. The sovereign wishes to give stability and order to administration, by express and promulgated rules. The subject wishes to know the conditions and limits of his duty. He acquiesces, or he revolts, according as the terms on which he is made to live with the sovereign, or with his fellow-subjects, are, or are not, consistent with the sense of his rights.
Neither the monarch, nor the council of nobles, where either is possessed of the sovereignty, can pretend to govern, or to judge at discretion. 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 patties 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 stature, 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, 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 judgement 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 those 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 a 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.
