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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 a crime that everyone considers capital, and we want him executed, be the deed proven or not, and be there or not an express law that condemns him.

Well, now, is there a single man, not yet liberal, humane, and enlightened, but one who preserves in his soul some love, some respect for justice, who is not embarrassed by such a claim and by giving a response that one would not even find in the mouths of those who make up the most savage tribe? For this is, in sum, the behavior of those who demand the head of an accused person without knowing whether he is guilty because they have not studied his case, and the response they tacitly give when they are told that, because the constitution did not give them the right to apply the laws but rather gave it to the judges named by the government, they must leave those judges in full freedom so they might judge according to the circumstances of the trial and what their consciences tell them, and that to intimidate a judge with threats so that he

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would pronounce a verdict dictated to him is the greatest crime that can be committed against the constitution, for it tears down and destroys at a single blow the distribution, division, balance, and independence of the powers that have been established in it for the benefit of all.

But still they reply: And if the judge has been bribed to acquit a criminal or impose on him a more gentle punishment than the one he strictly deserves? The assumption, generally, is false and slanderous and almost always unfounded, but conceding that it might not be, the solution is very simple and delimited in the same laws: denounce such a scandalous and criminal breach of trust, judicially pursue that one or those who have sold justice, and ensure by legal means that a sensational example is made of them in order to dissuade all others who are in that situation from imitating their iniquity. But to threaten with taking justice into their own hands and killing the accused on the pretext that the judge has treated him with too much kindness, and to intimidate the tribunal that has not ruled to their satisfaction, more than being the greatest affront, the greatest insult that can be made to humanity, to reason, and to justice, is the surest way to put an end to the constitutional regime and the most infallible means of making even the name of liberty hateful.

In the first place, if such crimes are repeated, there would not be a single good man who would want to be a judge in a country in which he is threatened and the verdicts he is to pronounce are dictated to him, for no man of any probity wants to see himself reduced to the difficult choice of committing an injustice or being ridiculed and insulted. In the second place, what sensible man would want to live under a government which, were he to have the misfortune to be accused justly or unjustly of certain crimes, could not prevent his conviction, even when the tribunals recognized his innocence? Who would not hasten to flee from such a country of iniquity? Who would not blaspheme free institutions if they saw that, with this name, the upheaval of society, the subversion of all principles, and the violation of the most sacred rights were justified?

Among all injustices, the most odious, the least bearable, is that which is committed with judicial forms in the name of justice and by the very magistrates who were supposed to administer it. And if this is so, when the injustice is the result of the error or maliciousness of the judge, how much more horrific and terrible will the atrocity be when it is born of violence? Against the errors or personal arbitrariness of the judges, the

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Constitution and the laws have provided us with a solution, authorizing appeals, and if these are not sufficient, means for annulment; but against the violence of threats or at gunpoint, what means will the unfortunate person have over whom this storm bursts? None, of course. Those who applaud, praise, or excuse at least the first crimes of this kind can now count on the most bitter fruits, for they serve as the text for the disrepute and slanders with which our enemies seek to discredit us in cultured, powerful, and civilized Europe.

It is time now that those who heretofore have proceeded in this way retrace their steps and consider that violating justice, trampling on the authority, so respectable, of the tribunals, and intimidating and threatening individuals is not a good way to guarantee and make amiable the present order of things. It will have served nothing to have removed and eliminated the power and favor that resurrected the notable extraordinary authorities, the weak influence they could have on tribunals and their decisions, if an influence much more direct, powerful, and terrible in criminal sentences is now usurped by a fraction of the people.

No good intention, no motive, however noble one might suppose it to be, can justify the threats that, in private conversations and gatherings and in some public papers, are poured on the judges and other constituted authorities because they do not venture to violate the forms, upset the order of trials, or apply capital punishment to those who, in their judgment, do not deserve it; on this point reason is in agreement with the Constitution and the laws. We sincerely desire to make those who are thus deluded know the truth, and for this, without insisting more on the incontrovertible truths that we have just urged, we will conclude our discourse with one single observation.

They say that they are lovers of justice and of the present order of things, that they see it perishing through the apathy and delay of the judges in accelerating cases and for their kindness in the application of punishments; arrange, then, the judges and tribunals in the desired way and, once this is done, let us ask what will happen when these judges acquit, as will happen many times, one or more persons accused of political crimes? Will they seek them out to take their lives because they have not ruled as they wanted? And who, after all this, would accept the honorable post of judge? And what would become of the liberty and independence that the law assures them in their deliberations and judgments if they do not have to perform according to their conscience, but

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rather at the whim of those who want everyone executed whom they suppose deserving of the ultimate punishment? We say that many of those accused of political crimes would be fully acquitted because, in the moment men see themselves invested with the august character of the judgeship, they become other than what they were before, and they see themselves placed under an obligation to follow the precise letter of the law. From this results that, not being able to get out of the case material anticipated in the law that serves as the basis for the accusation of guilt, and this many times not being the same as the law designates, they have to declare him not guilty of the crime of which he is accused; and as it is very difficult for the law to anticipate or precisely define all crimes, for some crimes it will inevitably come about, because of not being specified in the code, that it will be necessary to acquit the accused. We have many examples of this even in those tribunals disposed absolutely to condemn and universally recognized as barbarous and inhumane.

These detestable qualities cannot be denied in the revolutionary tribunal established in the very sad days of the French Convention and under the immediate influence of Robespierre; nonetheless, this tribunal, although in reality it was not a tribunal nor did it merit such a name simply because it had the appearance of one, sometimes did not satisfy the revolutionaries and absolved from the pain of death various persons accused of political crimes through the fury of the revolutionaries. One must, then, be convinced that it will not be possible to find a judge, even though deliberately sought, who would be sufficient to quench that rabid thirst for blood that rises in those moments immediately following the triumph of political factions, and that generally is due more to ignoble revenge than to impartial justice.

And will it be a great misfortune for society if the executioner has fewer occasions to exercise his odious and terrible ministry? If sound philosophy would like the bloody spectacle of an execution to be abolished, even for common atrocious crimes, will this show itself with more profusion and fewer formalities in political crimes that are only crimes in specific places? If those actions that generally depend on opinion going astray, on erroneous concepts and wrong ideas must be punished with the loss of life, what punishment, then, will be imposed on murderers, thieves, and the other vicious people whose crimes have their source in the heart’s perversity? Yes, we insist that it be kept in mind that political crimes are among those in which some leniency is appropriate,

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because ordinarily they are born of an error in understanding and not of that malignancy of an incorrigible heart which, when a man has committed a series of atrocious crimes, makes it almost necessary to exterminate him like a wild animal from which society can expect nothing but injury.

Such a man is today the enemy of the present order of things, and he works to destroy it, and, corrected by an imprisonment or exile more or less extensive, will never return to take up the business of counterrevolution, because he does not contract the habit of plotting like the one who kills or robs. He who has been accustomed to being a thief does not easily let go of this vicious habit, but he who comes out badly in an attempted revolution generally remains forever taught by punishment. This rule can have exceptions, but it is fairly general.

If we did not observe in many of our fellow citizens that tendency to accelerate cases, trials of conspiracy, and to force and prejudice in a certain way the verdicts of judges, while, on the other hand, they do not show great insistence on the persecution of other crimes; if we do not recognize all this, we repeat, we would have exempted ourselves from fighting this inclination, which, if it begins to grow larger, can make itself excessively harmful to the system of tribunals and put social guarantees in great danger. We have suffered too much in the periods of our revolution, and it is now time for us to reestablish the reign of harmony, moderation, and justice in a shaking up that has taken as its motto the constitution and the laws.¹