both those who have usurped the most majestic power and the perfidious agents who, betraying their duties, have not given less thought to anything than maintaining the public liberties despicably sacrificed to the interests of a contemptible and criminal favorite, but also the honorable men, their faithful representatives, who have learned to sacrifice everything, including their existence and political reputation, to the public good, to the national good. The canopied throne of
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the king and the armchair of the president who cannot or do not wish to sustain the civil liberty of the citizen, or who attack his individual security, see them collapse, splattered all over with the blood spilled through hatred and national vengeance. The murderers who set themselves up in tribunals against the express will of the constitutive law, converting themselves into instruments of tyranny and oppressors of helpless innocence, expel their last breath in the hands of the furor, and their dreadful cadavers, covered with blood and wounds, are exhibited through the streets and placed in the public plazas, unless, to prevent this catastrophe, as unfortunate as it is horrible, the promises and assurances that their masters gave to those despicable and contemptible slaves had been effective. If only the criminals who instigated such excesses suffered, but, in the net’s dangerous haul, innocents and even meritorious citizens are unfortunate victims of the power of anarchy.
Take warning, then, oh you who preside over the destinies of peoples. There is a moment in which their exhausted suffering makes them break up like an avalanche that tears to pieces, destroys, and drags along behind it everything that before contained its strength and reigned in its spirit. If you open some gap in the legal barriers, this immense mass will rush headlong through it and you will not be sufficient to resist it. The French Revolution is a practical and recent example that you should always keep in your sights. It teaches you that the public authority has never attempted a crime against the rights of free men with impunity, and the first step taken against individual security is the unfailing harbinger of the destruction of the nation and the government.
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| 6 | Discourse on Laws That Attack Individual Security * |
In popular governments, laws of proscription have never saved a people.
— Montesquieu, Considerations concerning the Greatness and Decline of the Romans
If one carefully seeks the causes of anger and discontent that one observes among peoples who have tried various systems of government, passing from the most absolute despotism to the most unrestrained democracy, one will find that always or almost always it is due to the obvious opposition and the continual conflict between the principles of the constitutive law and the character of secondary laws. When the first is given to them or they initiate it themselves, they receive and proclaim it with enthusiasm; they imagine the most agreeable prospects and they consider themselves free simply from the fact of having declared themselves so. But when experience makes them see that such declarations have been futile, that despite them the oppressor regime continues and what is most sacred and independent in man comes to be the patrimony of the authority, they are annoyed at the form of government they have adopted and tear apart the governing constitution to seek in another what they have failed to find in it. From here they sometimes remove those who hold power, substituting for them others with the same or a different denomination and at other times make elective what was hereditary. When it is a matter of shaking off the yoke of a king, all social bonds are loosened successively and gradually until ending in anarchy, but when one tries to get out of this anarchy, one runs the scale in an inverse order, and power proceeds to concentrate without interruption until it settles entirely and fully in the hands of a single person.
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At the extremes, as in the center, the same thing is always sought, that is to say, liberty, but always to no avail, for the set of declarations we call the Constitution is not what provides it, but rather the agreement secondary laws have with the Constitution. When this agreement is not sought, it will continually and without interruption rise and fall in the fathomless sea of political systems without being able to attach itself to any of them, but once obtained, public tranquility will acquire an unshakable firmness and solidity.
All constitutions, not excepting even those that have been calculated in support of the interests of the government, contain the sum of the essential principles of civil liberty, which serve as the base of the entire social order; but they are without doubt continually and frequently violated by secondary laws, which, far from being a consequence of their principles, are in open opposition to them, by virtue of which is destroyed with one hand what has been built with the other. Thus, then, freedom of the press, individual security, inviolability of property, and the division of powers are sanctioned in the Constitution. The legislative body will be prohibited from changing the constitutive law, the government will be prohibited from imposing any punishment for its own sake or usurping the functions of judges by having the citizen, directly or indirectly at their disposal, prescribing to the tribunals the rigorous observance of the formulas. All this and much more will be in the constitutive law. Afterward, however, will come other secondary laws through which the government remains invested with extraordinary powers to move, from one point to another in the nation, anyone who seems to it suspicious; military commissions, war councils, and advisers will be created that judge and prescribe as it appears to them and suits their interest; it will try to make them independent of the supreme judicial authorities, exempting them from responsibility and their verdicts from review. The greatest concern, however, will be that they are completely and absolutely under the influence of the government so that, through them and protecting itself with this phantom of judicial power, it can dispose of the persons who inconvenience it and whom it would outlaw with the show of a trial. It will authorize these tribunals of murderers, as a celebrated French legal expert calls them,1 to hear exclusively the crimes of high treason, and it will exempt them from observing the formulas. They will serve the
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power, lending themselves as instruments of all the power’s iniquities, and this power in its turn will support all their evil acts, rewarding them sometimes with promotions, pensions, and posts and exempting them other times from the responsibility and punishment with which they are threatened.
By this horrific picture the regime of the terror in France under the committees of public health and public safety will be recognized, influenced by the faction of sans culottes,2 at whose head were Danton and Robespierre. It paints a portrait also of the empire of Napoleon and the state of other nations that, by paths as tortuous and misguided, move rapidly and with gigantic steps to their destruction and extermination.
When it is a matter, then, of preventing these evils, or solving them if they have already begun, one must seek their origin and cut their root, which in representative systems will always be found in the laws of exception through which civil liberty is made illusory, attacking individual security. The legislative bodies, a constitution assumed, lack powers to decree such laws and are truly aggressors when they lend themselves to doing it. Their method is unjust in itself because it tends to absolutism, it is illegal because it infringes on the constitution, and it is imprudent because it alarms the people, destroys confidence, and perpetuates the barbarous state of a disastrous revolution.
Despotism does not consist, as the majority of men who reflect little persuade themselves, in the rule of one only, or in the consolidation of powers, but rather in what is unlimited in each one or in all of them together. The laws of exception assume in one aspect the existence of such a power, and in another aspect they tend to strengthen it. In effect, as a constitution is nothing other than the declaration of the rights of man in society and the distribution of political powers with a view to the preservation of these very rights, the laws of exception, which consist in the total or partial suspension of this code, can do no less than deprive man of some right or of some of the