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BOOK V: On Arbitrary Measures - 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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BOOK V

On Arbitrary Measures

  • Ch. 1. On arbitrary measures and why people have always protested less about them than about attacks on property. 73
  • Ch. 2. On the grounds for arbitrary measures and the prerogative of preventing crimes. 74
  • Ch. 3. Specious argument in support of arbitrary government. 77
  • Ch. 4. On the effect of arbitrary measures in terms of moral life, industry, and the duration of governments. 78
  • Ch. 5. On the influence of arbitrary rule on the governors themselves. 80

chapter one

On Arbitrary Measures and Why People Have Always Protested Less About Them Than about Attacks on Property

Governments which make no claim to be free escape some of the disadvantages of the proliferation of laws, by recourse to arbitrary measures. One by one these measures press only on isolated individuals, and though they threaten all citizens, the majority of those so threatened delude themselves about the danger that hangs over their heads unnoticed. Hence it happens that under governments which make only a moderate use of arbitrary measures, life seems at first more pleasant than in republics which harass their citizens with proliferating and irritating laws. Moreover it takes a degree of reflection, it takes accurate understanding and farsighted reason, such as develops only out of habituation to freedom itself, to perceive, right from the start, and in a single arbitrary act, all the consequences of this terrible expedient.

One of the characteristics of our nation is that it has never attached enough importance to individual security. To imprison a citizen arbitrarily, to hold him indefinitely in jail, to separate him from his wife and children, to shatter his social life, to upset his economic plans: all this has always seemed to us quite a simple set of measures, at the least excusable. When these measures hurt us or things dear to us, we complain, but about the mistake rather than the injustice. Indeed, rather few men in the long history of our various oppressions have earned for themselves the easily gained credit of protesting on behalf of those in different situations from themselves.

It has been pointed out that M. de Montesquieu, who vigorously defends the rights of individual property even against the State’s own interests, is much cooler in his treatment of individual freedoms,1 as if people were less sacred than [94] goods. There is a straightforward reason in the case of a preoccupied and egotistical people for the fact that the rights of individual freedom are less well protected than those of property. The man whose liberty is removed is disarmed by this very fact, while the man who is stripped of his property retains his freedom to demand it back. Thus freedom is never defended except by the friends of an oppressed person, while property is defended by the oppressed person himself. One can see that the intensity of the claims is likely to differ as between the two cases.

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]

chapter three

Specious Argument in Support of Arbitrary Government

The actions of government, we are told, bear down only on imprudent souls who provoke them. The man who resigns himself and keeps silent is always safe. Reassured by this worthless and specious argument, we do not protest against the oppressors. Instead we find fault with the victims. Nobody knows how to be brave even prudentially. Everyone stays silent, keeping his head low in the self-deceiving hope of disarming the powers that be by his silence. People give despotism free access, flattering themselves they will be treated with consideration. Eyes to the ground, each person walks in silence the narrow path leading him safely to the tomb. But when arbitrary government is tolerated, bit by bit it spreads out between so many participants that the least known of citizens may find his enemy in a position of power. Whatever cowardly hearts may hope for, fortunately for the morality of humankind, our safety calls for more than mere standing to one side and letting the blows fall on others. A thousand links bind us to our peers and even the most frantic egoism cannot break all of them. You think you are safe in your deliberate obscurity and your shameful apathy. But you have a son and youth gets the better of him, a brother less cautious than you permits himself a murmur, an old enemy you once wounded who has got himself a bit of power, and in his fantasies some corrupt military leader is coveting your house in Alba. What will you do then? Having bitterly condemned all struggles against the powers that be, will you struggle in your turn? You are condemned in advance both by your own conscience and by that degraded public opinion you yourself helped to create. Will you give in without resistance? But will they let you give in? Will they not exile or persecute this annoying case, this monument to injustice? Innocent people disappeared. You saw them as guilty. You prepared the road you now walk along in your turn. [99]

chapter four

On the Effect of Arbitrary Measures in Terms of Moral Life, Industry, and the Duration of Governments

If we look at the effects of arbitrary measures in terms of moral life, industry, or even the duration of governments, we will find them equally disastrous.

When a government ruthlessly strikes out against men it suspects, it is not just an individual it persecutes; rather it is the whole nation it slights and degrades. People always try to shake off their sorrow. When what they love is threatened, they either detach themselves from it or defend it. When there is no security, there is no moral life. There are no gentle affections unless we know that the objects of such affection are safe, their innocence a safeguard in itself. Habits become corrupted suddenly in towns attacked by the plague. The dying steal from each other.6 Arbitrary government is to moral life what plague is to the body. It reduces citizens to the choice between forgetting all finer feelings and hatred of the government. When a people coldly contemplates a succession of tyrannical acts, when, without a word of protest, it watches the prisons fill up and banishments multiply, when every man keeps silent and isolated, and, fearful for himself, tries to disarm the government by dissimulation or by the even worse device of assent, can anyone believe, with this despicable example on all sides, that a few banal sentences will suffice to reinvigorate feelings of honesty and generosity? People speak of the need for paternal authority. But the first duty of a son is to defend his father from ill-treatment; and when a father is taken away from his children and the latter are forced to maintain a cowardly silence, what then is the effect of your maxims and codes, your declarations and your laws? People pay homage to the sanctity of marriage; but on the basis of a shadowy denunciation, on a mere suspicion, [100] by measures called precaution, security, and law and order, a man is separated from his wife or a wife from her husband! Do they think conjugal love is by turns born again and vanishes at the government’s pleasure? Family ties are much praised. But what upholds these ties is individual freedom, the hope founded on living together, living free in the shelter which justice guarantees the citizen. If family ties persisted, would fathers, children, husbands, wives, and friends—all those close to the people despotism oppresses—submit themselves to such despotism? They talk of credit, commerce, and industry; but the man they arrest has creditors, whose fortunes depend on his, and business partners. The result of his detention is not only the short-term loss of his freedom, but the interruption of his business, perhaps his ruin. This ruin embraces all who share his business activities. It goes further; it strikes against all thought and all personal safety is shaken. When an individual suffers without having been proven in any way guilty, anyone not deprived of intelligence rightly feels menaced by this destruction of constitutionality. People shut up because they are frightened; but all human exchange is affected. The very earth shakes and people walk fearfully.7 Everything in our complex and extensive social life becomes static. The injustices thought of as individual are unfailingly sources of public ill too. It is not within our powers to restrict them to some fixed category.

Despotism aims at the very core of morality in order to degrade it. The brief respite it brings is precarious and gloomy, the precursor of terrible storms. We must make no mistake about this. However degraded a nation may seem from the outside, generous sentiments will always find shelter in a few solitary hearts, where, scandalized, they will seethe in silence. Parliamentary debating chambers may ring with furious ranting, and palaces echo with expressions of contempt for the human race. The flatterers of the people may stir us against pity itself; the flatterers of kings denounce courage to them. But no era will ever be so abandoned by providence that it will deliver up the whole human race in the shape despotism requires. [101] Hatred of oppression, whether in the name of one man or the name of all, has been handed down from age to age, under all forms of despotism. The future will not betray this most just of causes. There will always be men for whom justice is a passion and the defense of the weak something they must do. Nature has willed it so. No one has ever been able to stop it, nor ever will be able to. These men will always give way to this magnanimous instinct. Many will suffer, many perhaps will perish, but the earth with which their ashes will mingle will be stirred thereby and sooner or later will reawaken.

chapter five

On the Influence of Arbitrary Rule on the Governors Themselves

Once they have employed arbitrary measures, those in government find them so swift, so simple, so convenient, that they no longer want to use any other kind. In this way, introduced at first as a last resort in extraordinarily rare circumstances, despotic rule becomes the solution to all problems and an everyday practice. This treacherous mode of governance, however, a torment to those over whom it is exercised, also bears very heavily on the hand which uses it. A gnawing anxiety seizes governments once they enter this pathway. Their uncertainty is a sort of sense of responsibility mingled with remorse which weighs heavily on them. Since they no longer have proper procedure, they move forward and then back, and they get into a most anxious state, never knowing whether they are doing enough or too much. The rule of law would bring them peace of mind.

CONSTANT’S NOTES

[1. ]A reference to Livre XXVI, Ch. 15 of De l’esprit des lois, in which Montesquieu says: “It is false reasoning to say that the individual good must yield to the public good: that holds only when what is at issue is the authority of the state, that is to say, the liberty of the citizen. This is not what happens in those cases when the issue is the ownership of goods, because the public good is always that everyone shall invariably keep possession of the property which the civil laws allow.” Ed. cit., p. 716.

[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.

[6. ]Cornelius de Pauw, Recherches philosophiques sur les Grecs, op. cit., t. I, pp. 174–175, speaks of a plague at Athens under Pericles, but does not speak of the moral consequences of this illness.

[7. ]See Constant’s Note A at the end of Book V.

[A. [Refers to page 79.]]The banks, says Montesquieu, are incompatible with [102] pure monarchy.8 This is another way of saying that credit is incompatible with despotism.

[A. [Refers to page 79.]]The banks, says Montesquieu, are incompatible with [102] pure monarchy.8 This is another way of saying that credit is incompatible with despotism.

[8]Constant is probably interpreting this passage from De l’esprit des lois, Livre XX, Ch. 10 (éd. cit., p. 653): “In the States with commercial economies, banks have fortunately been established, which by means of credit have created new indices of value. But it would be a mistake to set them up in States which have only luxury commerce. To put them in countries governed by single individuals is to suppose money on the one hand and power on the other; that is, on the one hand the option to have everything without power, and on the other power and no option to have anything. Under such governments only the ruler has ever had or ever could have had accumulated wealth. Everywhere there is any such, once it becomes sizeable, it becomes first of all the prince’s wealth.” Constant has come back to this thought about Montesquieu and the banks in the Additions, p. 532, lines 10–11. See Annexe III in Hofmann, Les “Principes de politique” de Benjamin Constant, Droz, 1980, Tome II. [Hereafter referred to as Principes de politique (Hofmann’s edition).]