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
