An Essay on the History of Civil Society, Eighth Edition

by Adam Ferguson

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. For this purpose, the ephori, we are told, were established at Sparta, the council of a hundred at Carthage, and the tribunes at Rome. So prepared, the popular party has, in many instances, been able to cope with its adversaries, and has even trampled on the powers, whether aristocratical or monarchical, with which it would have been otherwise unable to contend. The state, in such cases, commonly suffered by the delays, interruptions, and confusions, which popular leaders, from private envy, or a prevailing jealousy of the great, seldom failed to create in the proceedings of government.

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 a 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 that 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 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.

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 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.