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1823. Feb. 27. Greece. J.B's Observations
1823. Feb. 27.

Greece. J.B's Observations on particular Articles

Judiciary

Now as to the plan I would propose for a Judiciary.

1. The whole territory of the state, say on the present occasion Greece, I would divide into Judicial Districts: the number, of course, not at present determinable: each such Judicial district into Judicial sub-districts, for the demarcation of which, extent of territory and of population should conjunctly be taken into account.

For the sake of simplicity and uniformity, and for a further reason that will soon be visible, the limits of these several Judicial Districts should be the same as those of the several Election Districts, by each of which, a Member is sent to the Legislative Senate. The limits of the several Judicial Sub-districts, may perhaps be the same with those of the several Election sub-districts, into which it may be convenient that the Election districts be divided, for the purpose of collecting, at so many voting offices, the several parcels of votes, which are from thence to be transferred altogether to the Election district voting office, at which the aggregate number of the votes given in that district are collected, sorted, and counted. Whether, of any of these Judicial Sub-districts, there shall be any ulterior division into sub-sub-districts, must remain to be determined by particular local considerations. For these Judicial districts, the only source of division I should employ, is - the territorial; no such source as that which has so generally been employed, and which may be termed the logical or metaphysical: a source taken from the nature of the Judicial business done: no such division, for example as that between civil and penal suits or causes, or that between civil and ecclesiastical suits or causes between commercial and non-commercial suits or causes: no such division as that under English Law, and thence under the English-bred Law of some of the Anglo-American United States, between Law cases and Equity cases. Reason. From any such principle of division, spring two great evils: one is, needless and useless addition to the number of Judicatories: the other is, in the case of this or that suit or cause, doubt and contestation, to the cognizance of which of two or more Judicatories it appertains. To this general rule, a few exceptions, but to no very considerable extent in the aggregate, will be of necessity suggested by the peculiar circumstances in which some classes of public functionaries find themselves placed.

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  • Title: [1823. Feb y. 27. Greece. J.B's Observations]
    Description: 1823. Feb y. 27.

    Greece. J.B's Observations on particular Articles.

    Judiciary

    In each Judicatory, efficient cause of location, the choice made, and will declared, by the Minister of Justice. Efficient cause of dislocation, votes to that effect by the majority of the Electors appertaining to the Judicial district or sub-district as above, as the case may be. This, without cause necessarily assigned. The Electors being on each day after giving their votes on the occasion of the election of a Representative in the Legislative Assembly, called upon to give their votes for or against the existing Judge, but not in favour of any other person in the character of a Candidate for that same situation. In case of a majority for displacement, obligation on the Minister of Justice to place another individual in that same Judicatory, but with power to place in any other Judicatory the so displaced Judge. On the part of the Electors, No specific assigned cause for such displacement need be made necessary, but in the nature of the case no proposition to that effect could ever be made with any prospect of success without assigned causes in abundance. Power to the Minister of Justice to propose to any Judge at any time, and accept his resignation, and upon refusal or silence to displace him, assigning or not assigning a specificcause or causes. Power to the so displaced Judge to stand forth in public for the vindication of his character, and to contest the existence or the sufficiency, or both, of any causes so assigned. On this head some provisions of detail would be found requisite.

    Reasons why the power of location should, in regard to all these Judicatories, be in the hand of a single person, the Minister of Justice: 1. the object of the judicial system taken in the aggregate being to give and secure execution and effect to the whole body of the Law all over the territory of the state taken in the aggregate, one main business of the Minister of Justice will be, according to the measure of his ability, to secure consistency and symmetry in the plan and mode according to which such execution and effect is given or professed to be given in every such field of Jurisdiction throughout the state.

    The
  • Title: [1823 Feb. 16 J.B's Articles and Reasons]
    Description: 1823 Feb. 16

    J.B's Articles and Reasons

    Judiciary

    1 To the people at large possessors of the supreme Constitutive power the function of placing the several Judges efficiently in the [...?] judicial districts ought not to be attributed.

    Reason. They can not have sufficient means of being antecedently sufficiently acquainted with the aggregate appropriate aptitude of those who would be proposed or propose themselves for the office.

    Reason 2. To find time sufficient for the exercise of such a function well or ill in addition to the operations necessary to the procurement of subsistence would be physically impossible.

    2 In each such Judicial district neither ought the same power to be attributed with reference to the Judicatory having authority in and over such their respective districts

    Reason 1. Want of adequate means of acquaintance /information/ as above

    2. Probability of partial affection: and corruptive intimacy between the Judge so appointed and those leaders of the people by whose influence he had been appointed.

    [...?] For this reason in each such district the functionary filling this office should at the time of his nomination be one of whom it is ascertained that he is as free as may be from all personal connections within the district.

    3. The power of displacing the functionary in question after experience had of him ought to be vested in the hands here in question. But /And/ if the power of placing were in the same hands, the power of displacing would be likely to remain unexercised in cases in which a well grounded demand for the exercise of it had place.

    4. The mode of exercising the power of displacing a Judge by the Electors of his district ought to be by secret suffrages openly delivered as in the case of an Election of the Members of the supreme legislative.
  • Title: [[xxxiv. 299] 1824. Feb y. 27]
    Description: [xxxiv. 299]

    1824. Feb y. 27

    Constitutional Code. for Greece

    Ch. Sub-Legislatures

    Observations

    Federative System

    In case of modification, one of the points might perhaps be in the Administrative department, giving the location of the Sub Minister of this or that department - not to the Prime Minister but to the Sub Legislature of the District, especially if that district be an island or a cluster of nearly adjacent islands.

    This provision however should not extend to the Judiciary Department. To the magnitude of The advantage in respect of impartiality resulting from the [...?] state of the Judge in respect of family and other intimate connections, few it is hoped are the persons who will not be fully sensible. In the ages called the middle ages when Italy was in great part divided into little republics it was a point of known and widely adopted policy to choose for the head of the judiciary a person who was a foreigner and a stranger with reference to the republic in which he was chosen to serve.

    In the several Districts, and in particular in those composed of islands it /the term Local Legislatures/ might perhaps be more agreable to the nation than a term corresponding to Sub-Legislatures

    A minor difficulty would probably be that which regards taxation. In relation to this subject the options seem to lie between no more than two sorts of arrangements. Fixing the quota that each District or Member of the Union shall contribute, and as to the mode of contribution - the subject matter of taxation leaving the fixation to the inhabitants /people themselves/ the other is - the locating by the General Legislature functionaries for collecting the amount in the several districts, the amount being settled by a general tax applying to all the several members without distinction

    The first mode is that according to which the difficulty presents itself as being at the highest pitch: for when the fixation comes to be made, each would regard its quota as too high, and thus it is that whatever were the most equitable system of proportions, the probability is - that it would find itself rejected by a majority of the Assembly whatsoever were the composition of it, if it were a free one.