to public opinion its enlightenment, its liberty, and its power.
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| 7 | Discourse on the Independence of Judicial Power * |
Ne quid nimis. Nothing in excess.
— Fedro
The inflamed frenzy that has been observed against the defeated dissenters and the excessive and sometimes immoderate determination with which their punishment is urged, seems to us to belong to the number of those excesses that, in general, are not subject to a noble principle, nor do they have favorable outcomes, especially when the judges are liable to lose an independence on which social order rests. The most august honor, the most noble privilege, and the most difficult assignment there can be among men in any government is being the arbiter among their equals, ending their differences, and being able to deprive them with a single word of their goods, honor, and even life. For this reason, in the first periods of the civilization of nations and in the infancy of societies, it was the supreme leader of the state who fulfilled such important functions, administering justice to the people. Once the machine of government became complicated and the attention of the rulers was distracted by many goals, it was necessary to dismember this branch of the sovereign authority and to entrust the judiciary to a particular class of magistrates. The government still reserved for itself their selection, the charge of overseeing them, the power to punish their breaches of trust, and the beneficent right of mitigating the severity of judicial verdicts.
Nonetheless, it was observed that the government, as the one that selected the judges and the one that rewarded their zeal or punished their negligence and intervened directly in judicial affairs to undo errors or mitigate the severity of sentences, exercised too much influence over
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the judges and could abuse that influence to oppress innocence or make judgment tip from the side of passion. Since then it was sought in every good system of government to surround the judicial order with such guarantees that it should be assumed fundamentally that the judges, free of all dependence, would not listen to another voice than that of their conscience or have another regulator of their transactions than the law of which they are the instruments and ministers. In the nations, then, that are governed by the representative system, although the power to choose and name all the judges is left to the government, and it is charged with overseeing their conduct, it is not permitted to remove them from office at its will. Even for the selection itself, qualities and circumstances that persons must have in order to be named are set; and with these or similar precautions, what the writers in public law call the independence of judicial power is ensured in every country that might not be Constantinople or Morocco.
This independence is one of the primary and most important guarantees the fundamental law can and must accord the citizen so that his person and property might always be respected, because it serves a mere individual little to have a well-organized legislative body and very good laws or an executive power whose authority has been greatly curtailed if he has good reason to fear that, when one needs to defend his financial interests before civil tribunals or his innocence before criminal judges, it is not the law but the will, caprice, or passion of men that decides his fate and acquits or condemns him in his lawsuits. What do all the doctrines of the writers in public law on the division of powers and the balance of political forces matter to the individual of the society if, despite all of them, he is unjustly deprived of his goods or his life?
Life and the means of preserving and passing it in an agreeable manner; here is every man; here is everything that he requires and the only thing that interests him; and here is why the greatest benefit society can give him is that he never be deprived of existence or the things that can make it pleasant except when he has made himself unworthy, through his crimes, of life or things that make it desirable. But this benefit cannot exist if the constitution, the laws, and, above all, the vigor of the supreme government do not make impossible, insofar as it is given to human discretion, partiality in judgments or verdicts of the courts and tribunals. The constitution ensures honesty and impartiality in judges when, through the qualities that it requires to become one and the
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method of their selection, it can be hoped that this selection will fall equally to persons of education and probity, and when, through the unremovability that it bestows on them, it shelters them from arbitrary dismissal, the fear of which could make them instruments of the self-interested aims of the government. The laws augment these guarantees, assuring them appointments with which they can live without having to sell justice to silence the voice of poverty, a temptation so powerful that few resist it; threatening them with very serious penalties should they prostitute their august ministry; and specifying with great clarity the circumstances and ways of demanding responsibility from them in the event of breach of duty. The government, finally, completes this system of guarantees and independence, creating respect for the persons of judges, which are sacred during the time in which they exercise their judgeship, protecting them from any violence, insult, or threat that is intended to extract from them an unjust verdict or one contrary to their opinion in whatever the matter might be.
Here are the general and common doctrines on which all writers in public law agree, without a single one having expressed up to now a contrary opinion or having expressed the least doubt in even one of these protective principles; and what is more, here are some ideas that, in some way, can be called innate in the heart of man because, in effect, in it the instinct for his own preservation has written them with indelible characters. Who is the man who, led into the presence of the judge for his crimes, or perhaps only for the appearance of them, would wish a tumultuous multitude to be present in the audience and, with raised knife, shout out the interpretation of the law: condemn that wretch you are looking at, and if not, both of you will die by our hands? Well now, if no one, whether defendant or accused, would want the one who was to pronounce the terrifying verdict on which his life might depend threatened in this way, will it be just if someone dared to threaten judges to the same effect when they are about to pronounce in the trial of another? And will they be lovers of the constitution, friends of the laws, and adherents of liberty, those who, in a free government, threaten the judges to prejudice their verdict and do what would not be tolerated, not permitted, nor has ever been seen under an arbitrary regime? If such threats are overlooked, they will end in open violence, and if these go unpunished, they will be repeated, and then what will become of order and the rule of law? For what is it to speak of liberty, of enlightenment, or of
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philosophy? Has it not repeatedly been the case, and is it without doubt very certain that the aim of political constitutions and the effect of enlightenment and philosophy is that citizens live subject only to law and not to the whims or passions of men? For how can those who endeavor to substitute their will for what is predetermined in the laws and who command with threats the prophecies that have to be pronounced in the sanctuary of Themis be constitutionalists, philosophers, or lovers of liberty or the laws? We are fully persuaded that those who permit such sacrilegious crimes do so carried away by a zeal very laudable in itself but very unfortunate in its consequences, very foolish, and reprehensible, and for this very reason we advise them with confidence that once they know the error, they would be the first to detest it, to repent, and to be horrified.
Are those who request of the judges in this way that an accused be condemned to death sure that he is guilty of a capital offense? Have they fully examined the act of which he is accused? Is it legally proven that he is the perpetrator of that crime? Have they considered and weighed carefully all the circumstances of that deed? Are they fully convinced that no circumstance extenuates its maliciousness or excuses it in some manner? Is it as clear as the light of day that the law condemns him to death? Is his particular case decisively foreseen and defined in the penal code? We, they say, neither know nor care to know anything about these quibbles of a lawyer; the public voice says that the accused has committed