Discourse on Laws That Attack Individual Security
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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
