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chapter two: On the Abridgment of Due Process - 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 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

[185] 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 [186] 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 [187] 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 [188] 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.

[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]