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BOOK IX: On Legal Safeguards - Benjamin Constant, Principles of Politics Applicable to All Governments 
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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On Legal Safeguards
On the Independence of the Courts
We have placed among individual rights the certainty that one will not be treated arbitrarily, as though one had exceeded the limits of these rights, that is to say, the guarantee that one will not be arrested, nor detained, nor tried, except according to law and following due process. We are obliged consequently to speak here of judicial power. So far from such discussion going beyond the limits of this work, we believe, on the contrary, that the indispensable conditions for making judicial power the safeguard of citizens are the same under all forms of government.
The first condition is that the judiciary must be independent. This assertion does not need proof. A people whose government can affect the judgments and direct or force the opinion of judges; employ against those it wishes to destroy the appearances of justice; hide behind the veil of the laws to strike its victims with their own sword: such a country is in a situation more unhappy, more contrary to the purpose and principles of the social State, than the savage horde on the banks of the Ohio or the Arab of the desert. There is only one way to make the judiciary independent: its members must be irremovable. Periodic election by the people, appointment for a time by the executive power, the possibility of removal without process, equally undermine the independence of the judiciary.
People protested strongly against the sale of offices. This was an abuse; but this abuse had an advantage which the legal dispensation which existed during the Revolution has often made us regret: the independence and irremovability of the judges.
 For sixteen years nothing was free, not the courts, nor the judges, nor the judgments. The various groups seized in their turn the instruments and the processes of law. The courage of the most intrepid warriors would scarcely have sufficed for our magistrates to pronounce their judgments according to their consciences, and such is the frightful weight of civil harassment that the courage which faces death in battle is easier than the public profession of a free opinion, in the midst of menacing factionists. A removable or revocable judge is much more dangerous than one who has bought his job. To have bought one’s place is a much less corrupting thing than having always to be scared of losing it.
It is a mistake to be scared of esprit de corps in the judiciary. It is to be dreaded only when the jury system does not exist and when laws which have proliferated, and some by that very fact have necessarily fallen into disuse, supply the judges with means for circumscribing and proscribing all the citizens.
In all other cases, esprit de corps is one of the best safeguards against judges allowing themselves to be dominated by the other powers of the State.
The old Parlements of France have bequeathed us, I agree, some unfortunate memories. The fault lay much less in their organization, however, than in a host of causes which no longer exist. The Parlements deserved far less public hatred for prevaricating in their functions than as the organs of execrable laws.
The eternally infamous sentences on the Calas, Sirven, and La Barre families were a product of the spirit of intolerance with which our laws and our whole political organization were impregnated. If there had been no dominant religion at all, cruel judges would not have sacrificed Calas, nor banished Sirven; and the unfortunate La Barre would not have perished  on the wheel, aged seventeen, for insulting the symbols of the privileged religion.1
The Parlements [high judicial courts] persecuted courageous writers because oppressive laws hugely increased the number of death sentences on the exercise of our most legitimate rights. Until the end of the eighteenth century, there were edicts (passed in 1767) which condemned to death authors of writings calculated to stir up people’s minds2 [Constant’s emphasis]. If there had been no vague law violating press freedom, our Parlements would not have been able to pursue men who could not have been open to accusation.
With all their vices, by the single fact of their irremovability, the Parlements were constantly led to struggle against the government, to protest against the increase in taxation and against illegal arrests and lettres de cachet.
I presuppose, moreover, the existence of severe procedures against judges who exceed their powers or deviate from the laws. I presuppose that no judgment is without appeal, because man must always have assured recourse against injustice and error.
Once these precautions have wisely been taken, though, then let judicial independence be complete. The executive power should exert no influence on it, even indirectly. It should never in its acts nor its public proclamations allow itself a  murmur against the very basis of political society, the citizens’ safeguard, the freedom of the courts. Nothing is more calculated to deprave public opinion than these perpetual declamations, repeated among us on all sides and in all periods, against men who deserved respect if they judged according to their consciences, and punishment if they prevaricated in their judgments.
I have assumed, moreover, the ongoing presence of the institution of the jury system. I know no judicial safeguard without this. Woe to the nation which lets itself be deceived by cunning objections. Juries, people say, enjoy absolving the guilty. But they have an interest as citizens and owners in punishing criminals. They are scared of becoming victims of their severity. The fault then lies with the government, with the lack of order, with the agents charged with pursuing the enemies of public security. If you once agree that despotism is a convenient tool for arresting the rise in heinous crimes, you give the government an interest in heinous crimes increasing. It will be careless in its surveillance in order to force you to give it unlimited powers.
On the Abridgment of Due Process
This leads me to examine a line of argument used as a pretext for most of the undermining of due process, argument all the more dangerous in that in the eyes of superficial men it clothes this undermining with a semblance of proper order and the appearances of legitimacy.
When crimes multiply or perils menace the State, people tell us we should abridge due process, the slowness of whose details compromises public security. Procedures are abolished and judgments accelerated, special courts are established, and judicial safeguards are totally or partly cut back.3
 This way of proceeding has always struck me as resting on a singular petitio principii. It is to declare men convicted in advance when so far they are only accused. Due process is a safeguard. Its abridgment is the diminution or loss of that safeguard. It is therefore a penalty. To submit an accused person to that penalty is to punish him before his trial. And if you punish him, it follows that his crime is proved in advance. If his crime is proved, what good is a court, of whatever kind, to decide his fate? If his crime is not proved, by what right do you place this accused in a special proscribed class and deprive him, on mere suspicion, of the benefit common to all members of civil society? This absurdity is not the only one. Due process is either necessary or useless in regard to conviction, conviction being, as I see it, the sole purpose of legal proceedings. If due process is useless, why do we retain it for ordinary trials? If it is necessary, why do we cut it out in the most important ones? What, when it comes to a slight offense, when neither the accused’s life nor his honor is in danger, the case is investigated with the greatest solemnity! All due process shall be observed. Safeguards are built up to make sure of the facts and to prevent innocence being punished! But when the question concerns some frightful crime and consequently total disgrace and death, in a single move, all the tutelary safeguards are to be suppressed, the legal code is closed, and formalities are cut short! It is as if one thought that the more serious the charge, the more superfluous its examination.
You will say that it is only from brigands, murderers, and conspirators that you are taking away the benefit of due process. But before we identify them as such, the facts must be determined. Now, what  is due process but the best means of determining the facts? If better, swifter means exist, let them be used, but for all cases. For why should there be one class of them in regard to which the unnecessary delays are observed and, on the other hand, another dealt with in dangerous haste? The dilemma is clear: if haste is not dangerous, delays are superfluous; if delays are not superfluous, haste is dangerous. Some would say, would they not, that we can distinguish by means of external and infallible signs, before the judgment or the inquiry, the innocent from the guilty, those who must enjoy the prerogative of due process and those who must be deprived of it? But in this case judicial authority, whatever type it might be, would be pointless. It is because there are no such signs that due process is necessary;4 it is because due process has seemed the sole means of distinguishing the innocent from the guilty that all the free and humane peoples have demanded its institutionalization. However imperfect due process, it has a protective faculty which cannot be removed without destroying it. It is the natural enemy and the unyielding foe of tyranny, whether popular or otherwise. As long as due process subsists, courts will put in despotism’s path a resistance, more or less generous, but which always serves to contain it. Under Charles I, the English courts acquitted several friends of liberty, despite threats from the Court. Under Cromwell, although dominated by the Protector, they often set free citizens accused of royalism. Under James II, Jefferies was obliged to trample on due process and to violate the independence even of judges he had himself appointed, to be sure of obtaining the numerous executions of victims of his fury.5 In Prussia we saw the courts defending the tradition of intellectual and religious freedom against the suspicions of Frederick II’s successor.6 There is in due process something lofty and unambiguous which forces judges to act respectably  and follow a just and orderly course. The dreadful law which under Robespierre declared proofs redundant and abolished defense counsels is an homage made to due process.7 It shows that a modified due process, mutilated and perverted in every way by the spirit of faction, still put a brake on men carefully chosen from the whole of France as those most devoid of scruples of conscience or any respect for public opinion.
These last observations apply with double force to those jurisdictions whose very names have become odious and terrible, to those Councils or Military Commissions which—a strange thing—during the whole course of a revolution undertaken for freedom, made all the citizens tremble.8 But the storms of this revolution had thrown all ideas upside down. A long and bitter war had driven the military outlook deep into our political institutions and our legal sanctuaries alike. Our leaders were rather inclined to believe that for freedom just as for victory, nothing was more appropriate than passive obedience and swiftly taken decisions. They looked on opinions as so many army corps to be enrolled or battled against, on representative assemblies as agencies of government and their opposition as acts of indiscipline, on courts as camps and judges as warriors, on accused persons as enemies and on trials as battles.
Hence this substitution of military force for the peaceful and tutelary safeguards of justice. Our descendants, if they have any sense of freedom, will not believe there was a time in which men reared under canvas and ignorant of civil life interrogated accused persons they were incapable of understanding and condemned  without appeal citizens they had no right to judge. Our descendants will not believe, if they are not the most degraded of peoples, that legislators, writers, and those accused of political crimes could be made to appear before military courts. Thus—in ferocious derision—opinion and thought were given as their judge unenlightened courage and uncritical obedience. They will not believe that warriors, returning from victory, covered with laurels that nothing had been able to wilt, should have had imposed on them the horrible duty of turning themselves into myrmidons9 to pursue, seize, and shoot fellow citizens, people who were perhaps guilty, but whose names, like their crimes, were as yet unknown to them. No, it was never thus, they will exclaim, the reward for valor, the triumphal ceremony. No, this is not how the liberators of France made their reappearance in their fatherland and saluted their native soil.
The pretext for this subversion of justice is that the nature of the court is determined by the nature of the crime. Thus crimping, spying, provocation to indiscipline, shelter or help given to desertion, and by a natural extension the conspiracies one presumes to have some collusion with or support in the army, are often regarded as coming under military jurisdiction. This pretext is absurd, however, as we have said, because, once again, it misrepresents accusation as crime, treats the accused as condemned, assumes conviction before the hearing, and imposes a punishment before the sentence.
The guilty do not lose all their rights. Society is not invested with unlimited authority even over them. Its obligation to them involves inflicting punishments on them only proportionately to their misdeeds. It must not make them undergo sufferings other than those  which have been laid down by prior laws. It has yet a further duty, namely to institute against the guilty only such chastisement as cannot stir up or corrupt the innocents who witness it.
This last duty rules out all experimentation with torture. Toward the end of the last century people seemed to have sensed this truth. Human skill no longer sought how to extend as far as possible, in the presence of several thousands of witnesses, the convulsive agony of one of their fellow creatures. We no longer savored premeditated cruelty. It had been discovered that this barbarity, ineffectual as regards the victim, perverted the witnesses of his torment and that to punish a single criminal a whole nation was being depraved.
A few years ago it was suddenly proposed by men of no authority that we revert to these frightful usages. All the sound section of the public shuddered with horror. The government balked at this ferocious blandishment; and if no one deigned to reply to these men, they owed it just to the contempt they inspired that they were repulsed only by silence.
The death penalty, even reduced to the simple deprivation of life, has been the target of objections by several estimable philosophers.10 Their reasonings have not at all convinced me that this punishment is never just, and I did not need their reasonings to be convinced that it should be extended only to a very small number of crimes.
The death penalty has the great advantage that few men devote themselves to odious and degrading functions. It is better that these deplorable agents of harsh necessity, rejected with horror by society, should devote themselves to the horrible work of executing  some criminals, than that a mob should condemn itself to looking after the culprits and to turning itself into the perpetual instrument of their prolonged misfortune. Cold-bloodedly to cause the suffering of one’s fellows is always a corrupting action, however rightly that punishment may be imposed by the laws.
This consideration leads me to reject life sentences. These corrupt jailers as much as prisoners. They get the former used to a capricious savagery. They are inseparable from a great deal of arbitrariness. They can veil a host of cruelties.
Condemnation to public works, so promoted by most of our modern politicians, has always seemed to me to entail drawbacks of all kinds.
In the first place, it is by no means proven to me that society has any other right over those who trouble public order than that of removing them from any possibility of doing harm. Death is part of this right, but work not at all. A man may merit losing the use or possession of his faculties, but he can alienate them only voluntarily. If you allow that he can be forced to alienate them, you fall again wholly into the system of slavery.
Moreover, to impose work as a punishment is a form of dangerous example. In modern societies the great majority of the human race is obliged to do excessive work. What could be more imprudent, impolitic, and insulting than to present work to it as the punishment for crime?
If convicts’ work is indeed a punishment, if it is different from that to which the innocent laboring classes of society are subjected, if, in a word, it is above ordinary human exertions, it becomes a death penalty more extended and painful than any other. Between the Austrian prisoner who, half-naked and his body half in the water, drags ships on the Danube, and the wretch who perishes on the scaffold, I see only a difference of time which favors the latter. Joseph II and Catherine II11 spoke always of the abolition of the death penalty in the name of humanity, while they inflicted punishments no less fatal and rather longer and harsher.
 If, on the contrary, condemnation to public works is not a refined form of death, it is the cause of revolting and contagious depravity. In some countries of Germany, people condemned to this punishment, treated gently, get used to their fate, take pleasure in their opprobrium and, not working in their servitude any more than they would in freedom, they offer the onlooker a picture of gaiety in degradation, happiness in debasement, security in shame. This must produce in the mind of the poor man, whose innocence serves only to impose on him an existence no less laborious and more precarious, notions which by way of comparison make him despondent or lead him astray.
In sum, the sound of chains, these galley slave clothes, all these insignia of crime and chastisement constantly and publicly exposed to our sight, are, for men bearing within them any feeling for human dignity, a punishment longer lasting and more painful than for the guilty. Society does not have the right to surround us with an eternal commemoration of perversity and ignominy.
The setting up of colonies, where criminals are transported, is perhaps of all harsh measures the closest to justice as well as to the interests of society and those of individuals society finds itself obliged to place at a distance.
Most of our faults are occasioned by a kind of clash between us and social institutions. We reach youth often before knowing and almost always before understanding these complicated institutions. They surround us with barriers we sometimes cross without our noticing them. Then there is established between us and our surroundings an opposition which grows larger because of the very impression it produces. This opposition makes itself felt among almost all social classes. In the upper classes from the self-isolating misanthropist to the man of ambition and the conqueror, in the lower classes from the man who addles himself with drink to the one who commits outrages: all these are men in opposition to social institutions. This opposition develops with most violence where the least enlightenment is found. It weakens proportionately with old age, as the force of the passions collapses,  as one reckons life only for what it is worth, and as the need for independence becomes less commanding than the need for peace of mind. But when, before reaching this period of resignation, one has committed some irreparable fault, the memory of this fault, the regret and remorse, the sense that one has been judged too harshly, and that this judgment is nevertheless final—all these impressions keep whomever they are pursuing in anxious irritation, a source of new and even more irreparable mistakes.
If the men in this fatal situation, under pressure from transgressed institutions, and slighted by social relationships they have forever vitiated, were now suddenly snatched out of it, if nothing remained with them from their earlier life other than the memory of what they suffered and the experience they acquired, how many would not follow an opposite road? How readily, being returned suddenly, as by a miracle, to safety, harmony, and to the possession of order and morality, they would prefer these joys to the fleeting temptations which had led them astray! Experience has proved what I say. Men deported to Botany Bay for criminal actions have started their social life again, and, believing themselves no longer at war with society, have become peaceful and estimable members of it.12
If it is just and useful, however, to separate culprits thus from environments which can only hurt and corrupt them, we render the establishment of colonies of this nature absurd and barbarous when we pursue men who ought no longer to exist for us, with implacable hate, in another hemisphere, prolonging their punishments and shame, keeping them still in a regime of ill will and ignominy, seeming to demand a metropolitan right to surround them in their far-off refuge with things which will cause them suffering, degradation, and corruption.
Is it necessary to add that nothing that the reader has just read applies to deportation to the colonies except as a punishment? Any arbitrary deportation is the overturning of all principles and a violation of all rights.
 The question of extradition is much of a piece with the question of punishment. This question would be easy to resolve if there were no unjust governments. Only culpable actions would be forbidden. Punishments would be pronounced only against real offenses. Nothing then would be more natural than a coalition between all men against that which threatened them all. But as long as there exist artificial offenses, above all as long as opinions are regarded as crimes, extradition will be the weapon of tyrants along with proscription of anyone who dares to resist them. Such are the shortcomings of vicious institutions, then, that they force us to give refuge to crime in order to take away from it the power to pursue virtue. It is a misfortune that we offer the guilty the chance of impunity, but it is not nearly as bad as delivering the good man to the vengeance of the oppressor.
On the Prerogative of Exercising Mercy
All legislation which does not admit the right to show mercy or to commute sentences deprives the accused and even the guilty of a right which legitimately belongs to them.
An inseparable drawback of general laws is that these laws cannot apply with equal justice to several actions of diverse type.
The more general a law, the further it is from the particular actions on which it is nevertheless intended to pronounce. A law can be perfectly just only for one circumstance. As soon as it is applied to two circumstances only minutely different, it is more or less unjust in one of the two.
Facts are infinitely nuanced. The laws cannot follow them in their modifications. The right to exercise mercy or to soften  a punishment is necessary to make up for the inflexibility of the law. This right is in reality nothing other than the right to take into consideration an action’s circumstances in order to decide if the law is applicable to it.
The prerogative of mercy has been opposed by one of these decisive dilemmas which seem to simplify questions by misrepresenting them. If the law is just, it is said, nothing should have the power to prevent its execution. If it is unjust, it should be changed.13 Only one condition would be necessary for this reasoning not to be absurd. This would be that there was one law for each fact.
The question of intention replaces in part the prerogative of mercy. But it makes up for it only imperfectly. Moreover, when you call on a jury to pronounce on anything save the facts, you are distorting its function. When you ask judges to do anything other than read the written text of the law, you are distorting their function.
The Court of Cassation14 in our country indirectly exercises the prerogative of mercy. When a law chances to be literally but too harshly applied to a guilty party, this court searches the procedures for some formal error which allows it to overthrow the judgment. But a good born of a wrong is always bad in other respects. Moreover, if the procedures are perfectly  regular, the court finds itself forced to deliver the condemned man over to a punishment he does not deserve morally, one it would have been just to mitigate. In truth this case is rare, given the complications of the prescribed formalities; but this too is one more shortcoming.
A single difficulty stands out in relation to the prerogative of mercy. If you entrust this right to the holders of executive power, they will consider this attribution accidental and secondary. They will discharge it negligently. They will not have time to devote themselves to an examination of all the circumstances which ought to motivate their decision. Punishments then not being inflicted according to any precise rule, the principal advantage of positive laws disappears. All the guilty will live in the hope of being favored by luck or caprice. The system will become a lottery of death, in which a thousand unforeseeable incidents will arbitrarily confound all chances of salvation or destruction.
We can prevent this difficulty by attaching this law to a specific authority. The men in whom it is invested would then exercise it with the thoughtfulness and gravity it demands.
But another difficulty would arise. A specific authority or any section whatever of judicial power, invested with the prerogative of mercy, would naturally make rules for itself in order to exercise it. The exercise of the prerogative would therefore become by this very consideration a judgment. We would no longer find in it the kind of vagueness and moral latitude which essentially constitute its justice and usefulness.
It is not part of our researches to decide to which one of these drawbacks to resign ourselves. It is a question which must perhaps be resolved differently according to the circumstances of each country. What is certain is that neither one nor the other of these difficulties is great enough to prevail over the necessity of entrusting to some authority or other the prerogative of mercy.
[1. ]A reference to the causes célèbres of religious intolerance against which Voltaire protested in publishing notably his Treaty on Tolerance and in interceding each time with the Parlements to have the victims and their families rehabilitated. Jean Calas was broken alive on the wheel in 1762. Jean-François Lefebvre, knight of La Barre, was decapitated (and not executed on the wheel) in 1766 at nineteen (not seventeen). He is the only one of the three whose rehabilitation Voltaire was not able to obtain. Finally, Pierre-Paul Sirven managed to escape death by fleeing to Switzerland. Calas and Sirven were accused of murder, the first of his son and the second of his daughter, La Barre of having committed sacrilegious acts in relation to religion and its symbols.
[2. ]Constant is referring to the “Declaration of 16 April 1757 [not 1767], punishing with death all those convicted of having composed, printed, sold or smuggled writings tending to attack religion, to stir up emotions, to attack royal authority, to upset public order and public peace.” Quoted from Marcel Marion, Dictionnaire des institutions de la France aux XVIIe et XVIIIe siècles, Paris, A. Picard, 1923, s.v. Censure.
[3. ]Constant in his notes indicated the following reference: “Montesquieu. VI. 2.” The second chapter of Livre VI of De l’esprit des lois is entitled indeed De la simplicité des lois criminelles dans divers gouvernements (On the simplicity of the criminal laws in divers governments). Among other things, Montesquieu says here: “One hears it said constantly that justice should be rendered everywhere as it is in Turkey. Will it therefore be only the most ignorant of all the nations which will have seen clearly into the thing in the world it matters most that men should know? [. . .] you will see that the penalties, the expenses, the delays, the very dangers of justice are the price each citizen pays for his freedom.” Ed. cit., p. 557.
[4. ]Constant had addressed Parliament a few years before on this subject. The law he had opposed in Parliament wanted to abbreviate due process in order to be able to struggle more effectively against banditry raging at the start of the Consulate, which made the roads unsafe. This explains the reference to brigands and murderers. See his oration to the Tribunat of 5 pluviôse an IX (25 January 1801).
[5. ]Hofmann was not able to pin down Constant’s references nor to find the sources he used.
[6. ]Hofmann has not uncovered the facts to which Constant is referring here.
[7. ]This is about the law of 22 prairial an II (10 June 1794). On this subject see Jacques Godechot, Les institutions . . . , op. cit., p. 323.
[8. ]These military commissions, established by the decree of 9 October 1792 to judge emigrés found with arms, comprised only three or five military judges and a public prosecutor. They pronounced one sentence only: death, which was effected immediately. These commissions were an even more terrible instrument than the revolutionary courts. See Godechot, op. cit., pp. 324–325.
[9. ][Hirelings. Translator’s note]
[10. ]In the proceedings of the National Assembly between 30 May and 1 June 1791, the deputies decided to keep the death penalty. Their speeches made reference to Montesquieu and Beccaria, among other philosophers. Among the speakers, Robespierre was against the death penalty, Brillat-Savarin in favor.
[11. ][Also called Catherine the Great in the Anglophone world. Translator’s Note]
[12. ]By the name Botany Bay, Constant means the colonial penitentiary at Sydney, in Australia.
[13. ]Constant summarizes here the critique made particularly by William Godwin. He had translated some of Godwin’s work. See Benjamin Constant, De la justice politique (unpublished translation of a work by William Godwin), edited by Burton R. Polin, Quebec, les Presses de l’Université Laval, 1972 (Droit, science politique 5), Livre VI, Ch. 7, pp. 307–309. One also finds the same critique of the prerogative of mercy in Jeremy Bentham, in his Principes du code pénal, Troisième Partie, Ch. 9, op. cit., t. II, pp. 432–434.
[14. ]The Court of Cassation, according to the terms of the laws of 27 November and 2 December 1790, had the attributions of: “annulling all procedures in which due process had been violated and invalidating any judgment which expressly contravenes the text of the law.” Cf. Edmond Seligman, La justice en France pendant la Révolution (1789–1792), Paris, Plon-Nourrit, pp. 321 and following.