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5	Discourse on the Civil Liberties of the Citizen *

Political liberty consists of security,

Or at least in the opinion one has of one’s own security . . .

When the innocence of the citizens is not secure, neither is liberty.

— Montesquieu, The Spirit of Laws, book XII, chapter 4

In a society that is well constituted and intends to destroy all the abuses that have perpetuated the existence of an arbitrary regime, it is necessary to accustom its members not to be enamored of insignificant voices and rather to concern themselves with the reality of things. The abuse of unspecified words, especially in political matters, has been, since the extinction of feudalism, the source of all the woes of peoples who emerge from the control of lords only to become slaves of governments. The word “liberty,” which has been used so often for the destruction of its own meaning, has been the usual pretext for all the world’s political revolutions. People have been moved just by hearing it pronounced and have reached out their hands to embrace the tutelary spirit of societies, which its leaders have made disappear like a phantom at the very moment it ceased being necessary for the attainment and successful outcome of their ambitious aims. Philosophical lovers of humanity have raised their voice in vain against such conduct. The people have been and will be frequently deceived if they are satisfied with forms of government and neglect to ensure the most important point of all free government, the civil liberty of the citizen, or, what is the same, the power to do without fear of being reprimanded or punished everything that the law does not expressly prohibit.

The precious right to do what does not harm another cannot, unfortunately,

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be put into effect in the state of nature in which man, reduced to his individual strengths, would inevitably be despot or slave, depending on whether these strengths are adequate to suppress the rest or insufficient to resist their aggressions. Men, then, have regarded themselves as compelled to create societies and to organize a public force that, being superior to that of each individual, might check and contain the perpetrators of high-handed crime against helpless innocents. But before long, governments and the force put at their disposal, forgetting their origin and feigning ignorance of the purpose and ends for which they have been instituted, themselves commit those crimes that they were supposed to avoid or curb in individuals. It was necessary, therefore, to place limits on their power, to request and seek assurances that these limits would never be violated, that the authority could be exercised only in certain and specified cases and under fixed rules or conditions, which, when they have been well and religiously observed, have created in men such confidence that they can act as they please within legal boundaries without fear of being injured or disturbed and which we know by the name of individual security. Unfortunately, this open and honest conduct among the agents of power has been very rare, and its lack has led to a thousand disturbances because of the prolonged struggle between governments and the people, a struggle that depends on the diverse interests that drive different groups and are the reason for their different and contrary ways of acting.

It is in the nature of those who dominate, whatever might be their number and the name given to them, to seek to make the exercise of power as advantageous as possible for themselves, and it is equally in the nature of those who become subordinated to make domination a heavy burden for those who exercise it and the lightest it can be for those who endure it. Whatever may be the name of those who govern, the question for them is always the same. Whether they be called presidents, directors, emperors, or kings; be they five or be they three, whether there are two or only one; whether they be elected or hereditary, usurpers or legitimate, their interest is always the same: to have persons at their disposal in the most absolute way, to have no obstacle to the exercise of their authority, to shake off the grip of all responsibility or censure. To the contrary, those who are subject to power, whatever may be its form or name, are concerned to make themselves safe from all arbitrariness so that no one might make use of their persons without rule or measure.

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They are equally concerned to become free and to remain so with respect to everything that does not infringe upon the right and security of another. From those two opposing tendencies results a conflict that must have as its ultimate end either the establishment of despotism, no matter what might be the form of government, or the destruction of all arbitrary power. There will be no rest among the people except when one of those outcomes has come to be so essential and inalterable that every hope of alteration or change has been extinguished in the heart of men.

There is no doubt that people will be free under any form of government if those who rule them, even if they are called kings and are perpetual, are truly powerless to make use of the person of the citizen at their whim and without subjection to any rule; and republican forms will be useless, even if the head of the nation is called president and serves for a fixed time, if the fate of the citizen depends on his omnipotent will.

The wise Montesquieu, who analyzed political powers and, making clear their driving and conserving principles placed the first stone of the edifice consecrated to civil liberty, does not hesitate to assert that, although the form of government has some influence on civil liberty’s existence, it is not its true and essential component. In the judgment of this great man, the liberty of the citizen exists uniquely and exclusively in individual security and in the stillness, repose, and tranquility that the conviction of its existence produces in each of the members. In effect, all these words contain everything that a peaceful man, free of ambition, can desire and ask of society, and when one acts in good faith and with the spirit of doing the right thing, it is easy and simple enough to grant such assurances.

On what, then, are contingent the continuous and bitter complaints that are heard with such frequency against the agents of the power? Why are the terms “indifference,” “indolence,” “arbitrariness,” “despotism,” and “tyranny” applied with such frequency to the acts that emanate from the depositaries of the authority? How is it that they are accused by the very ones who have an extremely lively interest in the repression of crimes that are being committed or can be committed against the individual and public security? To resolve these questions with certainty, it is necessary to assert that all the depositaries of the authority, no matter what the political power may be, have the strictest obligation to prevent

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unjust aggressions among individuals and themselves refrain from committing them. Whenever the citizen suffers or endures any external violence without having infringed any law, or, what is the same, is innocent, the government must be responsible and know to make public amends, for, as nothing more than an agent of the nation, established precisely with the sole and unique objective of ensuring the exercise of public and private rights, to fail by aggression or omission in such duties, as sacred as they are important, is to commit a crime of lèse-nation. Thus it is when highwaymen and murderers have the support of the authority or, at the least, guilty tolerance; when libelers damage the reputation of the honorable citizen with impunity and lack the propriety due to public morality, feeding on and encouraging malicious defamation through publication of private defects, true or supposed, without the authority exercising any restraining methods whatsoever; finally, when the abuse with impunity of men who have no other crime than their birth or the opinions they profess is permitted or tolerated, it is evident that individual security does not exist and that a government that is indifferent to or colludes with such attackers is, at best, a useless burden for the nation that created it and onerous for the people that maintain it, without serving them at all. In effect, from the moment one or several members of society have just and well-founded reasons to fear that they cannot count on the protection of the government, and, so as not to provide that protection, the government shields itself with a lack of energy or with the ridiculous excuse that public opinion is against the persecuted ones and defying that opinion is imprudent, from this point, we repeat, individual security is at an end and the bases of authority are undermined.

This indolent inertia, or this partisan conduct, is not only destructive to those wretched who endure it, it is so for the persecutors themselves and, above all, the government. Nor will those who today attack the rights of others with impunity, riding roughshod over the reputation and persons of their opponents based on the fact that the authority, from complicity or fear that these opponents have instilled in it, cannot or will not curb their excesses, should their fortune be adverse tomorrow and should their misfortune make them a target of persecution, be able to expect, from the agents of power, that they will enjoy security and stability. For the same reasons that it has been a cold spectator to the crimes committed by a faction, it will simultaneously be a cold spectator to all crimes of other factions; and in its shadow the reign of

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force and anarchy will be forming, which sooner or later will topple the social edifice, enmeshing in its ruins the depositaries of the authority. France, in its revolution, provides us with conclusive evidence of this truth. From the installation of the Estates General, the spirit of persecution broke loose, which did not end even with the Restoration. In that nation, the destruction of a previously victorious party firmly dragged the government along with it. The constitutionalists banned the royalists; the republicans, the constitutionalists; the Girondists were banned by the committees of public health and public safety; those who made up these bodies went in succession to the guillotine by the orders of Danton and Robespierre. These famous cannibals fell at the stroke of the Thermadorians, and in all these convulsions France was flooded with blood, anarchy devastated everything, and the government, which did not know or did not want to make effective the guarantees protective of personal security, was always the victim of the rush of the factions.

Until now these have been and will always be the deplorable outcomes of the criminal indifference and abandonment with which those who are charged with curbing attacks on individual security view them. A government that deserves that name should shake off fear and not permit itself to be banished; it must remain firm and impassive among the factions. To abandon the principles of justice in order to seek the support of the dominant faction is to be lost, is to commit a crime that is more than atrocious, ineffective, and not conducive to the end it is endeavoring to attain. In effect, when the government does not think about governing, but rather about existing through criminal tolerance, it unfailingly reconciles the hatred of those who suffer with the scorn of those who persecute. The first cannot avoid becoming exceedingly irritated, especially on seeing that they are sacrificed to the existence of an authority that they created to protect their security. The second, inwardly convinced that they owe toleration only to the real or apparent strength of their faction and that tomorrow the same toleration will be owed by another, which at the very moment it replaces them, oppresses them, look with disdainful scorn on a power so debased that it loses the value of a just severity without escaping the odiousness of criminal toleration. Unhappy people entrusted to such a government! Public interests will be meanly sacrificed to the interests of the agents of the power, peaceful citizens will not have a moment of tranquility or rest, becoming obliged to seek in themselves and by preventive measures

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owing to their individual strengths, the security that cannot or will not be accorded to them by an authority that does not think about them except to deliver them defenseless to the voracity of their enemies. In vain will they invoke the principles of justice, the natural feelings of compassion for them and for their families, or the just compensation owed for their services. No other recourse remains to them but to endure their suffering and redouble their efforts to place at the proper time the sacred deposit of public liberties in more faithful hands and to entrust the reins of government to expert persons of known probity.

The people have another, much greater, woe to fear from governments, and it is that when these governments, emerging from their indifference, enter into such activity that they themselves commit the crimes they should prevent; to clarify, transforming themselves from protectors to aggressors, they attack individual security and turn against the citizens the same weapons they accepted for their defense. This abuse is the more terrible the more the very nature of the political powers gives way to frequent errors in such a delicate matter. The authority of the government, says the wise Bentham, is nothing but the exception to the general rule that individuals must observe. You will not kill, you will not deprive anyone of his liberty: this is the obligation of an individual. The judge will condemn the murderer to death; he will imprison the criminal; the government will have the sentence executed: here we have the powers of the authority. Although the primary benefit of society is providing individual security for us by curbing the aggressions of others, it is clearly possible to attain this only when the person of each citizen remains subject to the action of the public authority in the event of an attempt against the security of another. This act of submission is precisely where the risk is run. Here is where the government feigns acting as protector when it is actually turning into an aggressor; and as the dividing line between these two acts is so fine as, in general, to be scarcely perceptible to the majority of citizens, it is not strange that it continues to confuse them. So we strive to explain so important a subject through its effects and outcomes.

From the moment in which the government is empowered to arrange the fate of citizens without submission to any rule, all of them are its slaves. The citizen’s state is that of governed, the slave’s that of possessed, and the distance that separates such different conditions is immense. What is it, then, to be possessed? It is to be entirely and absolutely at the disposition of another and dependent on his will. And what is it to

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be governed? It is to be protected against all forms of aggression, reprimanded oneself when one commits them, and obliged to concur on the means of preventing them. Any other sacrifice that might be called for on the part of the citizen, and any other influence the government claims to have over his person, is an act of oppression and tyranny. A citizen, then, has no reason to complain when his imprisonment has been provoked by an act committed by him, an act declared criminal by an existing law that assigns a fixed penalty and when the trial directly follows the arrest. These methods can in no way be called undermining of individual security; on the contrary, they contribute to maintaining this precious right and are indispensably necessary to secure it. Such a procedure does not cause alarm or lack of confidence except for malefactors, and this, far from being an evil against which one should guard, is for a society a good for which legislators should always strive.

Those acts of the authority of which citizens complain, and with such justice call oppressive and tyrannical, are not of this class. They are those that spread mourning and consternation in the family of the peaceful citizen, of whose innocence the authority pretends ignorance; t hey are judicial persecutions without regular judgments, when the public power arrests and imprisons anyone it pleases, prolongs detentions indefinitely, exiles, and, finally, disposes of persons according to its whim, like a master over slaves he possesses and not like a leader over citizens he governs; they are, finally, those acts by which the authority itself commits an outrage against the security it has promised and is obliged to maintain, and by which it perpetrates the disorders it was supposed to curb.

The public authority in a nation that has changed institutions for the first time, passing from absolutism to liberty, is constantly reactionary; it has no other idea of government than what it could receive from the previous regime, nor is it persuaded that curbing crimes and taking precautions against the destruction of the state are possible by any means other than those that have been learned in the school of despotism. As the principles of this latter school are openly contrary to the new institutions, the complaints are not only frequent and repeated, but also just, well founded, and incontestable. The agents of the power, not finding a way to avoid the complaints, appeal to the preservation of the Republic, to this protective god of tyrants and oppressors, by which they try to persuade of the risk the government runs if it does not disregard individual security.

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It is certain that the first necessity of a people is the existence of its government, but it is not equally so that this be incompatible with supporting such a sacred right as individual security.

It is not the interests of the authority, but rather those of the officials they are trying to secure; because what is it they understand as the interests of the government? Things not capable of feeling cannot have interests in anything. It is then clear that, when this expression is used, it signifies only the impotence of the agents of the power to give free rein to despicable and thieving passions, oppressing those who overshadow them or make evident their evil acts. Certainly, it would be as rare as it would be difficult to persuade those who neither occupy public posts nor can get any use of them that the arbitrary regime has been established precisely for their benefit, to have their persons at their disposal without submission to any rule. The truth is that it greatly pleases those who rule, whatever certain people may want to say, to constitute themselves into masters of the people who have been entrusted to its direction and to have the power to dispose of the members that make it up without the obligation of accounting to anybody or the fear of answering to anybody. All the unhappiness of which they complain is thus reduced to the fact that some do not rule everything they would like; but what is unhappiness for them is a great benefit to the other citizens who make up the society.

Let us openly confess, then, that illegal and arbitrary prisons push man down into slavery, and, at the same time, they prepare an interminable series of misfortunes for a people that, because of these acts, is in a permanent state of revolution.

The history of all times, both ancient and modern, shows with absolute certainty that the crimes of the arbitrary power inevitably end in public disorders. It will be useless to seek in these political oscillations the reestablishment of individual security; they will have had this as their aim, but it will not be achieved while they last. Sometimes ambition, other times hatred and vengeance, always the most violent passions take possession of and empower such movements, and in this violent whirlwind they are surrounded and stifled and successively become victors and vanquished. Then principles are abandoned and a throne is erected to the empire of circumstance. These necessities give the common pretext for destroying regular laws that could have stopped them, and in this way injustice and irregularity, which will be constantly demanded

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as a pledge of public security, will periodically renew themselves. See here, says a famous writer, how the generations contemporary to these catastrophes never gather anything but bitter fruit and how rare it is that the following generations inherit happier ones. Looking for security in the midst of convulsions is the grossest of errors, but an active and sensitive people is invincibly impelled toward it when oppression has drained its patience.

Any political system that allows arrest and exile without due process carries within itself the germ of disturbances that sooner or later will explode with a deafening noise.

So governments that try to argue that the means of containing the disturbances is to disregard individual security with protective methods deceive themselves and deceive others. Public indignation, which is the precursor of all disturbances, becomes stirred up in so indisputable a way that it can be hidden from no one. Among a moderately refined people, when it is suspected that an innocent person suffers, the liveliest interest is taken in this victim of arbitrariness, and the particular iniquities of the power are publicly and vigorously censured. When this happens, discontent and alarm spread rapidly through all members of society, who from this moment place themselves in open war with the government; very just war, but at the same time the most dangerous and harmful that can be undertaken, because through it the social bonds are completely destroyed and men are in the barbarian state of nature.

We never advise peoples to take such a step, but they move to adopt it, as if through instinct and without deliberation, when the crimes of the power have been multiplied to such a point that they have destroyed in the heart of men all hope of an alternative. Then hatred and revenge, driven strongly by the furor that oppression causes, inspire the most cowardly and place a dagger even in the hands of the weakest. The irresistible wrath of a rebellious people causes the most dreadful damage. It expresses itself in the sanctuary of the laws, hurling from it, as violently as ignominiously, 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.