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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 means to make it actual. How is it possible to proceed in this way without sanctioning or supposing the omnipotence of deliberative bodies? What limits can be placed upon the action of a body that does not recognize these limits in individual

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rights and believes itself authorized to deprive anyone of the means of maintaining them? If there are injustices in the world, without doubt this is the greatest of all.

The general will must not be a reason that justifies such ravaging; it cannot be unlimited, and its action must cease where the right of another begins. Where would we end up by asserting the principle that the general will can do everything and is sufficient by itself to legitimate doing so? The most repressive and tyrannical acts, the most barbarous proscriptions, and the most enormous crimes would need nothing to convert themselves into rights except a certain number of votes, which could not even be fixed, given that nations cannot consist of a precise and determinate number of persons. The death of Socrates and Phocian, the exile of Aristides and Miltiades, and a thousand other loathsome acts through the entire human lineage would remain fully justified by such an absurd and antisocial doctrine. In a word, the ignominious execution of Jesus of Nazareth, the most innocent, the most beneficent, the most virtuous, and to say it now, the greatest of the whole line among the children of men, would be nothing other than a lawful act and the exercise of a right essential to all society.

Nonetheless, there is no one who does not know and detest such injustices, and this is the most decisive proof that there does not exist on earth any unlimited power or authority, and even were the votes and opinions of the entire human race gathered, they would not be sufficient to justify what by itself and by its nature is necessarily unjust.

Well, now, if the gathering of all rational beings cannot bestow this character on certain acts, can some fractions of it, much less the very few called representatives, be invested with such power? It would be nonsense and the height of absurdity to maintain it.

But what rights are violated, it will be asked of us, by changing, through laws of exception in certain and determinate cases, the tribunals and forms of trials, omitting some proceedings when public safety is in danger? We do not have difficulty in asserting that many and almost all rights are violated, because either those tribunals and forms have been considered absolute and indispensably necessary to guarantee individual security and distinguish the innocent from the guilty, or not. If they are necessary, in no case can the tribunals be changed or the forms omitted without attacking the most sacred right of man, which consists of the independence

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of his person and in the free use of the indispensable means to make clear his innocence. If they are not necessary, the tribunals must not be established, nor the forms agreed to.

To clarify. When the ordinary tribunals were established they had to be constituted on such foundations that, at the same time they threatened crime they protected innocence, inspiring in this way confidence in the individuals and the government. They had to be, under one aspect, a bulwark of individual security and, under another, the maintainer of public tranquility. To attempt, then, to keep them from exercising their functions in certain cases is to expose the one or the other, and sometimes both, to being trampled and destroyed. There will be a reason, perhaps, to change their program and method of proceeding if experience proves in them some imperfections inseparable from human institutions, but it will be impossible, at any given time, to detect these imperfections in order to deny these tribunals jurisdiction over some crimes.

We say the same about judicial forms. They have been established as an essential means to make clear the innocence or guilt of an accused person. Thus it is that the achievement of this most important goal depends on their exact and faithful observance, and to abandon the goal is to be rendered absolutely and totally powerless to rule with certainty and obtain a happy outcome in so delicate a matter. There is no halfway. If the forms do not lead to making clear the truth of an accusation and the certainty of a crime, they should be dropped altogether; but if on the contrary they are considered necessary to the purpose, they must never be set aside.

Nor can the risk of threatened public security be given as an excuse sufficient to justify such provisions because, besides the fact that public security cannot be distinguished from individual security and he who attacks the interests of the first can hardly look after the second, we have already demonstrated that the tribunals and procedures in which one can have confidence in the punishment of some crimes should inspire confidence that the tribunals and procedures can curb them all.

Nothing, then, can exonerate laws of exception from the mark of injustice and the tendency to despotism; not the authority of the legislative bodies that receive that authority from the people, nor the authority of the people, because by its nature and essence that authority is necessarily limited by individual rights; nor public security, because

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public security can be provided through ordinary means; generally, public security is not at risk except when the civil liberty of the citizen is attacked, and fear of this ceases with the renunciation of extraconstitutional methods. A procedure of that kind remains, then, nothing more than an act of arbitrariness and despotism by legislative bodies, by means of which they overstep, without reason, the boundaries imposed by principles of natural justice, engraved with indelible characters in the hearts of all men. But it is not the only error from which these agreements that are incorrectly called laws suffer; illegality, disloyalty, and inconsistency are what constitute their distinctive character and make them more odious to all men in general because they grasp more clearly the contrast noted between promises set out in fundamental laws and the violations of these promises by laws of exception.

Any system in which one acts contrary to a compulsory law and through which a previously made commitment is ignored is called illegal and deceitful. These ideas are clear, precise, and widely accepted. The wise and the ignorant, the concerned and the impartial cannot help but know their truth. We come, then, to the application that can be made of them in the subject with which we are dealing.

If there is any universal and preferentially compulsory law in society, it is the fundamental code. A constitution is clearly nothing if it is not the law of all the others and if it does not obligate all the powers of a nation in the same way as those individuals who make it up. As soon as the subsidiary laws can withdraw from the rule of constitutive law, restrict it, violate it, or suspend it, it becomes reduced to a magnificent façade and an illusory monument behind which the chains of despotism are devised and forged. If the constitution is the only ineffective one among all the laws, and if it can do nothing against the other laws which can do anything against it; if it exists only to receive insults, what kind of obligation does one have to observe it, and how is one to understand that immutability that one ventures to grant it? An obligatory and immutable law is one that binds everyone and from whose observance no one is exempt. Its destruction begins from the moment any one of its literal provisions is disobeyed or thwarted, even by acts that are called legislative, and it remains without authority if, in any of its questions that have been resolved positively, any text other than it is consulted.

When legislators enter into the exercise of their august functions, they renew by a public and authentic act the commitment that, in the

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role of individuals, they contracted to observe it, and at the same time they assume another new commitment not to oppose it by acts that might destroy it. This solemn affirmation establishes a right in each one of the citizens to object not only to their nonobservance but also to their positive infraction. Those who dare to offer this proof of respect and obedience for the fundamental law, simply by confirming it, agree that they will consider null and illegal all acts that in any way might oppose it, and because among them must be counted the laws of exception, it is as clear as the light of midday that its provisions share in these judgments.

In effect, if the constitutional law of a nation is the statement of the rights that the entirety of citizens should enjoy and the exercise of these should be specified by the secondary laws, and if the first should proclaim the principles and the second ensure their being carried out, no people who obtain a fundamental code and a representative government could consider legal provisions that oppose these important ends. On the contrary, the social guarantees demanded in the name of the principles would be constantly violated or evaded, thanks to its exceptions; and this continual battle would make the fate of a nation more unfortunate than if it had remained subject to the arbitrariness of the absolute power, which, deprived of all the appearances of philanthropy in its principles and regularity in its action, would present a thousand flanks and weak points that could be attacked with success.

The endeavor, then, to legalize these acts, although quite natural to their perpetrators, can never be carried out or have a lasting and durable effect. The fraud in the long run cannot be hidden from anybody, and the contradiction and opposition that exist between the fundamental law and those that have as their goal undermining it, making it illusory, reveal naturally, and make clear even to the least sharp-eyed view, this fraudulent system. We cannot give another name to declarations, always repeated, of respect for individual rights, accompanied by the most insidious attacks that reduce these rights to absolute nothingness. This behavior would not be believable if it were not so well known in public officials, entrusted in a special way with the depository of public liberties. They proclaim and talk constantly about the most liberal principles, but in the excessive use of their powers they sometimes maintain, and other times prescribe and issue, decrees so barbarous that they could not pass even in governments branded as absolute. The inquisitorial system

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reestablishes itself from the moment when it suits their ambitious goals to outlaw a faction. Through acts they call laws, all those who make up the faction are delivered to military commissions; it compels them to be judged by people who have already irrevocably decided their sentence; and it subjects them to a barbaric and absolute code that permits prolonging arrests and solitary confinement indefinitely and delaying carrying out the verdict. It is true that all this is always in opposition to the fundamental law, but as it emanates from the legislative body, it is called law, and as the circumstances demand, it cannot be other than legal.

In this way the people and the laws are mocked by those whose position it is to sustain the laws and protect the people. This is how, through acts that they call circumstantial laws, they perpetuate the arbitrary regime and with it the germ of disturbances and riots, and thus they overpower social guarantees, seeking to deceive the people with a language that is fraudulent.

And will it be said of this behavior that it is wise? Inasmuch as it is not legal, does it offer security to the freedoms of the patria? Will it calm public disorders? Not in the least. It places institutions in danger, the spirit of persecution is perpetuated and takes root in nations, it destroys confidence in one’s own security and provokes revolutions.

It is difficult to find a means less suitable for strengthening the institutions of a nation than that of violating them, and it would seem impossible that it might have occurred to anyone to use this means for the attainment of this end, if experience did not prove that the delusions of men can reach even this point. The simple explanation of the expressions will be sufficient to convince us that laws of exception are directed to this and nothing else. If one asks what is sought with them, it will be said that it is the salvation of the patria. As this is not distinct from the salvation of the fundamental laws, in the end we will come to deduce that putting these laws out of danger is what is intended. But if one asks again what a law of exception is, the only response can be that it is the deprivation of either a right or a means of sustaining it, both set out in the constitutional charter, and from this can be deduced, as in the last analysis, that what is sought is to save this charter by its own destruction. Once one constitutional article is violated, the rest are not safe. The guarantee of one is the guarantee of all the others, and no matter how pressing one might assume the reasons presented to demolish the first article, there will be no lack of other reasons that, in their turn, are considered

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pressing enough to attack the others. If the legislative body manages to provide this pernicious example, the government, the tribunals, and even individuals themselves will not be long in imitating it, and as everyone is prohibited from doing so, no one will have the right to reprimand the rest.

A constitution violated by the legislative body offers no security whatsoever, for as the transgressor is the supreme authority, it cannot be legally reprimanded, nor are there means to stop this aggression by punishing the guilty. The alarm, then, which lack of confidence follows is more lasting and permanent. As if individual security can have protection when the attack comes from the laws themselves. Men become inflamed in such cases upon seeing that they do not gain in society the equivalent of what they lose, for if one counts the value of the sacrifices, on the one hand, and the persecution that the laws cause them or the protection they do not provide them, on the other hand, the sum of woes comes out greater than that of the goods, or, better said, the latter disappear completely, and the former remain entirely.

But the effects of these abusive laws in the judicial order are worth closer scrutiny. When one wants to reduce to words empty of meaning the rights set down in a constitution, before corrupting ordinary judges put in place to defend those rights, one attempts to create special tribunals, whose very name is enough to imagine what must be expected from them. No one is unaware that such manner of administering justice does not have as its purpose the protection of innocence. Those who requested or dictated such laws hasten to make use of them to get rid of their enemies through the verdict of judges who are all at the disposal of whoever appointed them. Their decisions will be repeated and confirmed as if by an echo wherever they are brought. But public opinion censures them with a firm and unanimous voice that only their authors will have the misfortune not to hear, because lending an ear only to the voice of the man on whom they depend or of those he has at his service, they are concerned only with supporting a faction that might have disappeared much earlier from the heart of society. This regime, whatever might be the guise under which it attempts to present itself, is at its heart one of deception, shamelessness, and cruelty. In it, without any exception, all questions are decided, not by examining the facts, but rather on the basis of the views that they have regarding the political opinions of the accused. And when the most atrocious and entirely established

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abuses of authority remain unpunished, if the perpetrators belong to the faction classified as sound, the opinions contrary to it are considered unpardonable crimes. But the least of all the ills that laws of circumstance cause is the obstinacy that their authors show toward leaving the tortuous path down which they have begun, giving dangerous circumstances as their pretext, without wishing to understand that these dangerous circumstances become critical only when a constitution struggles with an arbitrary regime and when the securities promised by fundamental laws are evaded and remain without effect because of special laws. This is how the very principle of the ill that foments and perpetuates the sickness is applied as remedy.

Any moderately reflective man will be able to anticipate the conclusion of this fraudulent regime. It must end either in the total loss of individual security or in political fluctuations that do not offer individual security until too late. What is astonishing, says a celebrated publicist³ in public law, is that such laws can reestablish themselves and that people enlightened enough to reclaim individual rights and strong enough to gain recognition for them take thoughtlessness and negligence to the point of allowing these rights to be reduced to puerile illusions. But who does not recognize the sway that words, formulas, and appearances exercise at the outset? Constitutional articles in which these rights are proclaimed, bodies constituted to defend them, representatives, voters, the apparatus, finally, of a representative system appear visible to everyone, calm the spirits, and discredit the first alarms of the small number of citizens it has not been able to seduce. The time required for public opinion to develop is used to employ all the means of usurpation and imposture in corrupting public agents, in depriving those who resist them of all influence, and in forming those habits and customs advantageous to a system of this kind among the various classes, until indiscretions and, what is worse, excesses bring setbacks that upset this system and storms that tear it from its moorings. Then its fall is as rapid as certain, because the first symptoms that announce it dissipate the illusions and return to public opinion its enlightenment, its liberty, and its power.