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chapter two: On the Grounds for Arbitrary Measures and the Prerogative of Preventing Crimes - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]

Edition used:

Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003).

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chapter two

On the Grounds for Arbitrary Measures and the Prerogative of Preventing Crimes

Arbitrary measures are often justified in terms of their alleged utility. They aim to preserve order and prevent crime. It has been said countless times that it is better to prevent crimes than to punish them, and since this vague proposition is consistent with a number of interpretations, no one has so far taken into his head to put the question in doubt.

If we mean by the prerogative of crime prevention the right to distribute a mounted constabulary around the highways or break up gatherings before they have caused disorder, government has this right, and it is more appropriately called one of its duties. The right to stop crimes, however, is all too often the freedom to treat innocent people harshly for fear they might become criminal. Are certain individuals thought likely to conspire? They are arrested and kept apart, not because they are criminal but to prevent them from becoming so. Is a particular group considered criminally disposed? It is marked off in a humiliating way from other citizens and subjected to legal formalities and precautionary measures from which other people are exempt.

We will long remember the various innovations signaling what we call the Reign of Terror, the law of suspects, the banishment of the nobles, and the proscription [95] of priests.2 The interests of these groups, it was asserted, being contrary to public order, it had to be feared they might upset it, and one would rather prevent their crimes than punish them—proof of what we observed above, that a republic dominated by a faction, adds to the disorders of anarchy all the harassment of despotism. On the other hand, some tyrant or other of a small Italian principality arrogated to himself the right to deport people at will, on the pretext that it was part of his clemency to prevent men inclined to crime from giving in to this fatal tendency.3 Proof again of what we have said: the improperly constituted or ratified government of a single man adds to constant and unspoken abuses, the noisy and scandalous practices of factions.

The pretext of crime prevention has the most immense and incalculable consequences. Potential criminality inheres in everybody’s freedom, in the lives of all classes, in the growth of all human faculties. Those in authority endlessly affecting to fear that a crime may be committed, may weave a vast web that envelops all the innocent. The imprisonment of suspects, the endless confinement of those whom due process would acquit, but who instead may find themselves subjected to the indignity of prolonged detention, the arbitrary exile of those believed dangerous, though there is nothing they can be reproached with, the enslavement of thought, and then that vast silence so pleasing to the ear of government: this pretext explains all these. Every event offers a justification. If the crime the government claimed it feared does not occur, the credit goes to its watchfulness. If one or two unjustified actions provoke opposition, this resistance to which injustice alone led is itself quoted in support of such injustice. Nothing is simpler than passing off the effect for the cause. The more a government measure offends against freedom and reason, the more it drags in its wake disorder and violence. Then government attributes the need for the measure to the disorder and violence themselves. Thus we have seen the agents [96] of the Terror among us forcing priests to resistance by refusing them any security when they submit and then justifying clerical persecution by their resistance.4 Similarly the Romans saw Tiberius, when his victims disappeared in silence, glorying in the peace he was maintaining in the empire, and then when complaints made themselves heard, finding justification for tyranny in what his flatterers called attempted sedition.

The pretext that crime is being prevented can be shifted from domestic politics to foreign affairs. This results in the same abuses just as the same sophisms justify it. Are those in power provoking our most peaceful neighbors and faithful allies? All they are doing, they say, is punishing hostile intentions and forestalling attacks now being considered. How can we show the nonexistence of these intentions, the impossibility of these attacks? If the unfortunate nation they calumniate is easily intimidated, our governing group has forestalled it, since it is submitting. If it has time to resist these hypocritical aggressors, it wanted war because it is defending itself. To show that this picture is in no way exaggerated, one need only recall the war in Switzerland.5

“What?” someone will say, “when the government knows a conspiracy is being hatched in the shadows, or that thieves are plotting to murder a citizen and plunder his home, it will have resources to punish the guilty persons only once the crime has happened!” Two very different things are confounded here: crimes actually begun, and the alleged will to commit crimes. The government has the duty and therefore the right to keep an eye on trends which look dangerous to it. When it has evidence of the conspiracy being hatched or the murder being pondered, it can make sure of the men this evidence points to. In this case, however, this is not an arbitrary measure but a legal action. This is precisely when these men must be brought before independent courts. This is the very time when the detention of the accused must not be prolonged if proof is not forthcoming. As long as government has only [97] suspicions about people’s intentions, it must keep guard passively, and the object of its worries must not feel their effect. It would be an intolerable condition for men to be constantly at the mercy of government suspicions.

To render the prerogative of prevention admissible, we must distinguish again between the jurisdiction of authority over actions and its jurisdiction over individuals. Our safeguard against arbitrary government lies in this distinction. The government sometimes has the right to direct its powers against harmless or innocent actions, when they seem to it to lead on to dangerous results. It never has the right, however, to make this same power weigh on individuals who are not clearly guilty, even when their intentions are suspect to it, and their resources seem such as to be feared. If, for example, a country were infested with armed gatherings, it would not be unjust for a brief period to put obstacles in the way of all meetings, obstacles which would hurt innocent and guilty alike. If, as happened in parts of Germany, arson was becoming widespread, one could attach a punishment to the mere transport or mere possession of certain combustible materials. If there were a high murder rate as in Italy, the bearing of arms could be forbidden to all individuals, without distinction. The exemplary nuances here are infinite. The most innocent of actions in intention may in certain contexts cause as much harm as the most criminal ones. Of course this principle must be applied with great caution, since the prohibition of any noncriminal act is always harmful to the moral life as well as the freedom of the governed. Nevertheless, government cannot be denied this latitude. Interdictions of the kind we have been considering have to be regarded as legitimate, as long as they are general. But these same interdictions, were they to be directed exclusively against certain individuals or classes, as happened so often during our Revolution, would become unjust. They would be nothing else than punishments which had got ahead of the crime. For it is a punishment that there should be an unseemly distinction between equally innocent men. The unwarranted deprivation of freedom which others enjoy is a punishment. Now, all punishment which does not stem from legally proven crime is itself a governmental crime. [98]

[2. ]On these numerous revolutionary laws, see Jacques Godechot, Les institutions de la France sous la Révolution et l’Empire, Paris, PUF, 1951, Ch. V, La justice révolutionnaire, pp. 316–328.

[3. ]Constant’s information, which Hofmann has not been able to trace, probably came from Sismondi, who was a specialist in the history of the Italian republics.

[4. ]On refractory priests and their persecution, see Jacques Godechot, Les institutions..., op. cit., passim, using the index references.

[5. ]On 28 January 1789, General Ménard occupied the Pays de Vaud, which had just emancipated itself from the control of Berne four days earlier. At the beginning of February 1798, Generals Brune and Schauenbourg began military operations against Berne. See Johannès Dierauer, Histoire de la Confédération suisse, Lausanne, Payot, 1929, t. IV, Ch. IV and V, pp. 465–573. Constant and Mme. de Staël had tried to oppose the policy of the Directory and of Napoleon against the Swiss. See Hofmann’s thesis, Première Partie, Ch. 2, p. 167, n. 215.