date

1823. Oct n 6. Constitutional Code
1823. Oct n 6.

Constitutional Code

1. Enactive Part

Ch. XII. Judiciary Collectively §. 29. Located here.

1. Located by Justice Minister are 1. Judges Immediate and

Appellate.

2. 2. So government Advocate.

3. 3. So eleemosynary Advocate.

4. 4. So Registrars

1. Question-Location of Judges, why not in Constitutive, nor

Legis lative, nor Executive, but in Justice Minister.

2. Answer. Reasons 1. Why not in Constitutive 1. Want of time,

as in case of Executive chief.

3. 2 Want of moral aptitude. For locating members of Legislative,

aptitude sufficient: for by location of one member, no

Constitutive's sinister interest c d be served, without concurrence of a majority:

which, as above, is not probable Not so for locating singly

acting Judges By league with a Candidate for a Judgeship, a

single might, in the event of his success, acquire means of

gratifications for sinister interest to an indefinite extent.

4. Connected thus with and dependent on the head of a party,

the undue favour of the Judge might thus be all along shown to

every Member of that party, his unjust disfavor to the opposite

party.

5. That in these hands the dislocative with regard to the

situation in question, sh o be as here

proposed. But with the two exceptions here noticed, (viz.

Legislative and Ministerial), it is essential that the locative

and dislocative functions be

not in the same hands: at any rate, not the

exclusive dislocation in the same hands with the locative. For, if

yes, whatever particular and sinister

interest places the functionary in the situation will, have had

soever his conduct, be disposed to keep him there.
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    Description: 1823. May 26

    Constitut. Code

    Ch. Judges

    S. Location

    1. Question- Location of Judges- why not in con stitutive, nor Legislative, nor Executive, but in Justice Minister?

    2. Answer. Reasons. I Why not in Constitutive. 1. Want of time: as in case of Executive Chief

    3. 2. Want of moral aptitude. For locating members of Legislative, aptitude sufficient: for by location of one member, no Constitutive's sinister interest could be served without concurrence of a majority: which, as above, is not probable. Not so for locating singly acting Judges. By league with a candidate for the Judgeship, a single leader might in the event of his success, acquire means of gratification for sinister interest to an indefinite extent.

    4. Connected thus with and dependent on, the head of a party, the undue favor of the Judge might thus be all along shown to every member of that party, his unjust disfavor to the opposite party.

    Ch. Judges

    S. Location

    5. That in these hands the dislocative with regard to the situations in question should is proposed. But, with the two exceptions here noticed (namely Legislative and Ministerial) it is essential that the locative and dislocative function be not in the same hands: at any rate, not exclusive dislocative in the same hands with the locative. For if yes, what ever particular and sinister interest, places tho functionary in the situation will, how bad so ever his conduct, be disposed to keep him there

    6. True, under a Government arranged in other respects, sooner or later, mischief from this, as from every source would find remedy: viz from Public opin. Tribunal. But to the application of the remedy in this case, a constant party struggle would be necessary The locating party successful, redress none: d o successful, then one party Judge would succeed to another d o, oppression and depredation might be in part extinguished, but also in part they would only change sides.

    Ch. Judges

    S. Location

    7. Against such evil, insufficient would be the remedy by Appeal: for

    1. By the inseparable expence vexation & delay, the application of the remedy would be limited

    8. 2. The from party influence, applies also to the Appellate Judicatories.

    9. 3. Want of intellectual aptitude. On this point, constitutive in altogether debarred from corrugating with Justice Minister. See the list of his functions.

    10. art. II Why not in Legislative? Reasons same in kind as those applying to Constitutive: only not so strong: yet sufficient [vs Quere if not stronger?]

    11. art. III. Why not in Executive Chief? Answer. Reason see d o applying to situation of Justice Minister. For the functions Executive Chief would have to look to the exercise of, in addition to his own and those of his subordinates the Minister, see Justice Minister's functions.

    12. or 2. Amongst functionaries of the administrative department, as to what regards official duty, contestation is neither desired nor expected: for im

    impartiality there is therefore no demand. Not so in the situation of Judge: this contestation is certain: and only for the termination of it, is the office instituted. Here there is the demand for impartiality: and for independence as towards
  • Title: [1823. May Constitut. Code Location]
    Description: 1823. May

    Constitut. Code Location F

    Ch XXV Justice Minister III. Rationale

    §. II Located by whom.

    1. Why in Legislature.

    Ch. Justice Minister

    §. Locality whom

    1. Question — Of Justice Minister, location why in Legislature — not in Constitutive, nor in Ex- -ecutive Chief?

    2. Answer. Reasons. I. Why in Legislature — 1. Use of this office, giving execution and effect in the surest manner to Legislative will in the case in question: viz. that of contestati- -on between party and party concerned: i.e. where, instead of ob- -sequiousness, it experi- -ences contestation.

    3. In each individual instance, suppose that will ascertained, obse- -quiousness can not be too sure, nor too prompt.

    4. Thence, the dependence of this functionary on legislative can not be too immediate.

    5. On any particular occasion, suppose the will of the legislative adverse to the interest of the greatest num- -ber, the sole proper appeal is — not to the will of any one func- tionary, such as the Ex- -ecutive Chief, but to the whole Constitutive.

    Ch. Justice Minister §. Located by whom

    6. Sole reason for not giving to Legislative this function, in addi- -tion to the Legislative, want of adequate time in their case, as in that of the Constitutive.

    7. Of that reason, no good imagined to re- sult from the lessening of their power, forms any part. The only mode of lessening their power without lessening the beneficial exercise of it, is the placing over them the power of the su- -preme constitutive

    Ch. Justice Minister §. Located by whom

    8. or 1. II. Why not in Constitutive? Answer. Reasons. 1. Want of time for this, in addition to constitutive

    9 or 2. 2. Note, by want of time, is here meant want of time - not for the mere exercise of this function, but for acquiring intellec- -tual aptitude: i.e. appro- -priate knowledge, and d o judgment.

    10. or 3. 3. In people at large, interest exerted by the disposal of power in this case will not be so great as in that of a Member of the Legislative: thence, the information brought before them in their Public Opinion Tri- -bunal by the leading Mem- -bers will not be so great in this case as in that.

    11. or 4. 4. In the giving effect to Legislative's will, more interest will be taken by Legislative itself, than by constitutive.

    12. or 5. Except in regard to mem- -bers of the Legislature, it is essential that locative and dislocative power with relation to the same situation, be not in the hands of the same bo- - dy. See as to this, the case of the Justice Mi- -nister.

    [ . Note two situations, in relation to which, they are proposed to be in the same hands: 1. Legislature - Members of- 2. Ministers.]
  • Title: [1823. May 26. Constitut. Code]
    Description: 1823. May 26.

    Constitut. Code

    III Rationale Ch. Justice Ministers S.2. Location 3. Why not in

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    13. or 1.

    Answer. Reasons. 1. See d o. as to

    Constitutive. Not so intense and constant will be a man's

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    14. or 2.

    2. By such union, a needless addition would be made to Executive

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    15. or 3.

    3. Having Justice Minister for his instrument, Executive Chief

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    impunity, in great degree, for malversations committed by the

    Ministers who, as above, it is necessary should be his perfectly

    dependent instruments: impunity to a considerable degree

    notwithstanding dislocative power in legislative and

    constitutive, these powers not being easily exercised.