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[xxxviii. 22]
1822 July 13
Constitut. Code Rationale
Securities
5 Moral Counterforce
Public Opinion Tribunal
A few Articles
Exposition and Rationale
1. Securities for Moral aptitude.
4. Moral responsibility
5. Legal responsibility
2. Moral responsibility what? Subjection to power of popular or moral sanction as applied by (Democratical Section of) Public Opinion Tribunal.
3. Legal responsibility, subjection to power of political (including legal) sanction, as applied by legal judicatories under the Government.
4. Public Opinion Tribunal, feigned for discourse sake, by analogy as applying the rewards and punishmts. of the popular or moral sanction.
5. Anglice Petty Common Jury a Committee of Public Opinion Tribunal organized.
6. Import from which this requires to be distinguished: belonging to him possessions whereby, for the purpose of punishment, Government may, if so disposed, take hold.
7. Real and important the distinction. Anglice┌ - in many a man responsibility by possession, without do. by effective subjection
8. Example. King: possession peculiarly ample: subjection by punibility none either in fact or by law.
9. Other situations responsible by law, not in fact. Witness
1. Chancellor and his Vices
2. Twelve superior Judges.
10. 1. Legal responsibility comes first to be explained: moral not clearly intelligible but by means of it. By punibility responsible: by law, conduct to any possessor of, or sharer in supreme operative power in a Monarchy absolute or limited.
(Note case of Spanish and Portugueze Kings under the Constitutions.
11. I. Monarchy absolute. Under absolute Monarch no functionary unless Monarch pleases, whatsoever the evil of his misdeeds to the universal interest.
12. Thus far by no such responsibility of a subordinate is counterforce opposed to superordinate's power: self contradictory the supposition.
13. Not so Monarch giving consent, which by casual circumstances may be brought about. Supposed case - Finance Minister defending King, and prosecuted before a Judicatory.
14. II. Monarchy limited. Case here not materially different. Here too direct impunity may be given by law: but indirect is found commonly more convenient. Of limited Monarch, and his instruments, the proceedings are more exposed to observation: in public's eyes direct course suppose palpably opposite to received notion of justice, resistance might at length be produced, and by resistance trouble. If so, case requires that some indirect course be taken by vengeance. Slaughterers, for example, sent off or rendered undistinguishable: failing, sent physical means, legal are at hand so numerous and intricate that by explanation of them a volume might be filled.
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Title: [[xxxviii. 23] 1822 July 15]Description: [xxxviii. 23] 1822 July 15 Constitut. Code Rationale Securities 5 Moral Counterforce Public Opinion Tribunal A few articles Exposition and Rationale 15. II. Representative Democracy. Here, without difficulty legal responsibility, universal, may have place. During office, no: not the whole nor a majority: to say yes would be self contradictory. But during office the minority: after office all may be punishable: just as every one else is: for misdeeds there as elsewhere. See accordingly articles,│ │ 16. Moral responsibility. This is to the purpose of eventual exposure to punishment by the │ │ of the popular or moral sanction at the hands of Public opinion Tribunal: (viz. the democratical section of it. Quere this here) like the │ │ invisible, but not the less operative. 17. To punishment such as is inflictible by this Tribunal, not only in a Representative Democracy, but even in an absolute Monarchy, may the possessors of the supreme operative stand excluded/posed/. 18. In this sense and shape even in an absolute Monarchy, even the Monarch feels himself responsible: though to the purpose of mitigation, of Monarch's oppression and depredation subject's sufferings, the effect is hardly perceptible. 19. Counterforce beneficial the less the legal, the greater the need of moral. In Monarchy, legal none, thence of the moral, need a maximum: actual quantity a minimum. Cause, the security afforded by the moral against the sinister sacrifice. (Insert note on the toleration in Tuscany and Russia.) 20. Contrast. In Representative Democracy, legal counterforce compleatly effective: need of the moral, for this purpose, a minimum: actual quantity a maximum. 21 Ao. 1803. In a season of insufficient experience, partly on account of the annoyance to individuals, supreme operatives deprived the community of this security. But greatest happiness etc. being the end, and by all seen to be so, it was restored by lapse of time, and is now fixt for as long as the democracy lasts.
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Title: [[clx. 344] 1822 July 11 Constitut]Description: [clx. 344] 1822 July 11 Constitut. Code Rationale Securities Counterforce 4 Legal responsibility 5. Moral responsibility Moral Responsibility Thus stands the matter in regard to legal responsibility responsibility to punishment at the hands of the possessors /administrators/ of the power of the legal sanction. Look now to moral responsibility - responsibility to the purpose of eventual exposure to the punitive power of the Public Opinion Tribunal, administrators /possessors/ of the force and influence of the popular or say moral sanction: the power that is to say /and in particular the power/ of the democratical sanction of that same invisible yet not the less efficiently /effectively/ operative tribunal: a tribunal like the Vehmic invisible; but, like that not the less operative. To responsibility /punishment/ to not altogether ineffective responsibility in this shape /punishment in a certain shape/, not only in representative democracy the possessors but even in an absolute Monarchy, the possessor of the supreme operative power are capable of being responsible /standing exposed/. In fact In this shape in this sense is /are/ the most compleatly absolute Monarchy the Monarch is always to a certain degree responsible, and feels himself so to be: though in some Monarchies at some times so faint /feeble/ has /such has been the feebleness of/ this responsibility been in the character of a counterforce to the powers of government in the highest grade, that the effect of it in respect of a cause of mitigation to the evils of misrule - of depredation and oppression - in experience has hardly been perceptible. has seldom in any determinate degree or shape been perceptible.
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Title: [[clx. 339] 1822 July 11 Constit]Description: [clx. 339] 1822 July 11 Constit. Code Rationale Securities 5. Moral Counterforce Public Opinion Tribunal ?. Expository Matter Fourth Security for Appropriate Moral Aptitude in Official Situations and in particular the all-commanding ones, the counterforce applied to the operation /force/ of sinister interest in those same situations, viz. Moral responsibility. Fifth Security, as above, Legal responsibility. The counterforces, thus distinguished - responsibility in its two modes require in the first place a joint coinsideration By moral responsibility understand here the result of subjection - effectual /effective/ subjection to the power of the popular or say moral sanction, as applied by the Democratical Section of the Public Opinion Tribunal By legal responsibility understand subjection - effectual /effective/ subjection to the power of the political including the legal sanction, as applied by the several legal Judicatories that have place under the Government in question By the term Public Opinion Tribunal understand a fictitious entity - a fictitious tribunal the existence of which is for the purpose of discourse, feigned by the help of analogy, feigned by /under the pressure of/ inevitable necessity for the purpose of discourse, to designate the imaginary tribunal or judiciary by which the punishments and rewards are applied of which the popular or moral sanction is composed. A Jury, supposing the members of it placed /located/ by chance a Jury exercising its functions in the manner of a Common Petty Jury under English Judicial Procedure may be considered /regarded/ as being a Committee of the Democratical Section of the Public Tribunal organized
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