JB_113-023v.xml

Title: [1821 Novr 29 Codification Proposal]

Description: 1821 Novr 29

Codification Proposal

'.8. Foreigner best

If by the exercise of this initiative function power called the initiative power

were exercised, and person exercising it were a foreigner, not only on this

supposition would power be exercised by this /such/ foreigner, but a power

greater than any which the supreme ruler or rulers of the state could exercise:

the share thus exercised by him would be greater than the whole remainder left

to them /respectively to him/: conceive any mass /body/ of discourse capable of

being proposed in the character of a body of law: by the possessors of the

consummative power it could not be prevented from becoming law till after

discussion whereas by the possessor supposing here such possessor of this

initiative power it could without any discussion be prevented from becoming law:

it could be prevented from being discussed: by mere inaction, and without any

exertion on his part he could prevent any thin that he pleased to prevent from

becoming law.

JB_113_022v.xml

Title: [1821 Decr 20 Employ or not? Codification]

Description: 1821 Decr 20 Employ or not?

Codification Proposal

Factitious Remain bad /'.5. Admission Universal/

Not dangerous this open initiative: close must be the consummative not this.

As in retail so in wholesale In the work /business/ of legislation, through the

channel of the press, the initiative function may without any the slightest

inconvenience be expressed by every body to whom it is agreable to exercise it:

/as many as will/, without any the slightest inconvenience, and with the maximum

of advantage. The consummative cannot with any good effect be exercised by more

than a comparatively small number: at the utmost not by any number greater than

that of those who, on the occasion of a discussion are capable of obtaining at

the same time a distinct perception of every thing that is said.

What /That which/ the universal interest therefore /accordingly/ requires, is -

that, as above the initiative function be exercised by as many as will. But,

that which the particular and sinister interest of every /each/ member of the

ruling few requires is that it be confined to as small a number of hands as

possible, so as his be of the number: and if in his hands a corresponding share

in the exercise of the consummative function be lodged on the same time /at the

same time/ lodged in proportion as he can contrive thus to narrow the exercise

of /lessen the number of hands taking part in the exercise of/ the initiative

function he gives proportionable encrease to his share in the integral power of

legislation. Next to the having the power /function/ in their own hands alone is

the not having to share it with any but such, at whose hands, in virtue of

particular interest in this or that shape, concurrence may reasonably be

expected: the /a/ small associated knot of the ruling few engrossing in their

own hands the function of the original draught, and calling - not for rival

draughts, but simply for observations on this one draught. If the expedients

employed for this purpose in the case of the Spanish Legislation Committee may

be seen in a recently published work - Benthams Letters to the Conde de Toreno

on the Proposed Penal Code.

JB_042_477_001.xml

Title: [1824. August 25. Constitutional Code]

Description: 1824. August 25.

Constitutional Code

Ch.XII. Judiciary Collectively

Superseded by another copy.

Three objections may here be liable to present themselves.

1. "In this way, the legislative and judicial powers "are confounded: united in one and the same set of "hands; and, of the Legislative power itself, the two elementary "powers, the initiative and the consummative.

2. "The legislative power, thus given to the "members of the judiciary, extends over the whole field "of legislation: no limits are or can be set to it."

3. "By the eventually-emendative and sistitive functions "together, the preinterpretive is rendered useless."

In all these instances, an apparent, in no one of them anyreal, incongruity will be found.

1. As to the initiative function here given to judges, it is no other than that which is given, not only to those same functionaries, but to every inhabitant of the state, and every inhabitant of the state: given, and without any the smallest risk or inconvenience: for, with the exercise, given to the power by the making of the proposal, the power ceases: no further power has the man, whoever he be, for the support of it. In the case of the judge, true it is that the mere inaction of the Legislature suffices for giving to his proposal the effect of law: in appropriate language, for adding to his initiation, the consummative. But neither can the judge, and more than any foreigner, contribute any thing to the adoption of what he has thus proposed: and besides the two judiciary authorities superordinate to his own, any two members when the proposal comes before the Legislature, which is what it can not fail to do — any two members, each at the expence of no more than a few words suffice for defeating the proposal altogether.