chapter one: On the Independence of the Courts - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]
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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 one
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.
[182] 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 [183] on the wheel, aged seventeen, for insulting the symbols of the privileged religion.
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 minds [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 [184] 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.
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