others. In light of these drawbacks, the men, united as described, determined to clarify the established pacts by common agreement, making use of categorical and decisive phrases, and here is the origin of the laws. But despite the clarity of these laws, the insistence on exempting oneself from them, sustained by the spirit of caviling, rendered them empty and ineffectual, those who acknowledged their existence claiming that some individual cases were not comprehended by those laws, cases believed useful to some and prejudicial to others, so it was necessary to create a neutral power invested by the common authority to resolve definitively disagreements that arose, and this is the origin of the judicial power. Finally, men refused to carry out the intent of the laws and the declarations of the judges, and it was necessary for everyone to combine their physical forces to compel each one to fulfill the obligations entered into through the original pact, and what resulted was what we call the executive power. By this, we do not claim that those distinct powers were divided from the outset, conferring them on distinct persons or bodies, for it is clear that this was the work of time and reflective meditation. But we certainly want it to be understood that these powers, distinct in reality, and for that very reason separable, were acknowledged from the time societies were founded, although they were vested in a single person or body. For this very reason, the doctrine that informs this division is not a pure theory totally unrealizable in practice, as a writer of our day claims. But let us continue reflecting on this society that moves toward its perfection. When members of the society created these powers, it
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was necessary that they entrust the exercise of the functions typical of these powers to some individuals of the association who would dedicate themselves exclusively to their fulfillment. For this it was necessary to assist them with everything that their personal work was supposed to produce, and here is the origin of the posts of judges and executors of the laws. As for the legislators, who were themselves members of the association, they exercised the legislative power for themselves so long as society consisted of a small number of individuals; but the number of individuals later grew to such a degree that the personal attendance of all and each one of them at the national assembly was not possible, and he who could not [attend] entrusted his vote to someone who was ready to assist. But as these difficulties constantly increased, many began to entrust their votes to a small number of individuals, and sometimes to only one, so that, reflectively and maturely considering the interests of each, they might prescribe those measures that would be most advantageous to the maintenance of all, and this is the origin of national representation and legislative congresses. But it happened that, in exercising legislative functions, those empowered by the people did not express the will of their constituents but rather their individual wish or opinion, seeking to limit the natural liberty of the citizens more than was necessary to sustain the union. Then the individuals of the society declared that the representatives had violated the boundaries of the authority that had been entrusted to them, and the individuals of society wrote down in a solemn and positive way, in laws put before the entire public, the imprescriptible rights of man and citizen, working out the three acknowledged powers that seemed most useful for the preservation of the liberty, property, security, and equality of citizens, and here is the origin of these codes and collections of fundamental laws known by the name of constitutions.
By what has been expressed here so far, one sees clearly the origin, development, and present state of human institutions, the goal men have proposed in establishing them, and the primary reason for all their transactions, that is to say, the preservation of their rights to the extent that allows for the preservation of society. From this follows a general consequence, and it is that all authority, of whatever kind it may be, has limits to the exercise of its functions, within which it must be contained, and it is not lawful for either the people or their representatives to trample on
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the rights of individuals on the pretext of preserving society, given that men, in instituting society, had no other intent nor proposed any other goal than the preservation of their liberty, security, equality, and property, and not to relinquish those rights to a moral body that might fully and legally exercise the most despotic tyranny over those from whom it had received this immense and formidable power.
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| 3 | Discourse on the Freedom of Thought, Speech, and Writing * |
Rara temporum felicitate ubi sentire Quoe veils, equoe sentias dicere licet.
An exceptionally happy time when
it is lawful to think as one wants
and to say what one thinks.
— Tacitus, Histories, book I
If, in the time of Tacitus, the ability to think as one wanted and to speak as one thought was an uncommon happiness, in our times it would be a consummate misfortune and a quite unfavorable mark on our nation and institutions should one try to place limits on freedom of thought, speech, and written expression. Tacitus and his fellow citizens were under the rule of a master, after all, whereas we are under the leadership of a government that owes its existence to such freedom, which can last only because of this freedom, and whose laws and institutions have given this freedom all possible expanse and breadth, sparing no means to guarantee citizens this precious and inestimable right.
In the same way that we have tried to demonstrate in our first issue the importance and necessity of the scrupulous, faithful, and prompt observance of the laws, let us make an effort in this issue to settle the entire and absolute freedom in opinions, for although those laws must be fulfilled completely, opinions must be free of all censure that precedes or follows publication of the laws, because one cannot justly demand that the laws be faithfully observed if the freedom of exposing their problems is not perfectly and totally guaranteed.
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It is not possible to place limits on the faculty of thought; it is not reasonable, just, or advisable to prevent one from expressing by word or in writing what one thinks.
Precisely because in the metaphysical order acts of understanding are necessary, they must be free of all force and coercion in the political order. Human understanding is a power as necessary as is sight; it does not actually have an ability to decide for this or for that doctrine, to keep from inferring legitimate or erroneous conclusions, or to adopt evident or false principles. It will be able, happily, to apply itself to examining objects with care and maturity, or with carelessness and negligence; to explore questions more or less and to consider them completely or only under one of their aspects; but the outcome of all these preliminaries must always be an action as necessary as is that of seeing clearly or vaguely, or with more or less perfection, the object held at a suitable distance. In effect, the analysis of the word “know” and that of the complete idea it indicates cannot do less than yield this result.
Knowledge in the soul is like sight in the body, and thus as each individual of the human species has, according to the different construction of his visual organs, a necessary manner of seeing things and does so without choice, so also, depending on the differences among intellectual faculties, he has a necessary manner of knowing to know them. It is true that both powers are subject to perfection and augmentation; it is true that their errors can be corrected or prevented, the sphere within which they operate can be extended, and the acts proper to them can be made more active or intense; not just one, but many and infinitely varied are the means of attaining them; one, many, or all can be put into action; they will, in their turn, give perfect, average, and sometimes no results, but it will always be
