date

[clx. 341] 1822 July 11 Constitut
[clx. 341]

1822 July 11

Constitut. Code Rationale

Securities

4 Legal responsibility

5 Moral responsibility

First calls for explanation legal responsibility, of moral responsibility any such clear conception not being obtainable by any other means as by its analogy to responsibility with reference to the power of the law.

As to legal responsibility, to the purpose of exposure to punishment at the hands of the political including the legal sanction, in a Government the whole or any fractional share in the supreme operative power is in the hands of a single person, no such legal responsibility, it is sufficiently evident /manifest/, can in his instance and at his charge have place. The situation of an absolute Monarch is therefore one in which no such responsibility can have place. The situation of a limited Monarch, howsoever limited is therefore another - or at any rate /the least/ will want very little of being so

Spanish King under

Spanish Cortes

Under an absolute Monarch, no such responsibility can in the instance of any /no other/ functionary under him whom the overgrown /head/ /supreme/ functionary is disposed to favour can any such responsibility have place, unless such should be the masters pleasure: and it will not be the Masters pleasure unless he be an object of the Masters personal displeasure whatsoever misdeeds he may have committed to the prejudice /detriment/ of the universal interest, and whatsoever may have been the defalcation made from the sum of public happiness.

So far as this effective irresponsibility has place so far it is evident the power of the legal sanction can not be presented in the character of a counterforce to the power of government - the power of government in the hands of a supreme ruler or set of supreme rulers - to present it in this character would be a contradiction in terms.

But, a case not altogether incapable of having place is - At the charge of one set of functionaries his subordinates and instruments, say his subordinates in the department of finance suffers the punishment to be administered by another set of his subordinates and instruments - say the functionaries belonging to the judicial department: here then the force of one of those sets operates /acts/ as a counterforce to another set his equally and assuredly obsequious instruments.
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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.
  • Title: [[xxxviii. 22] 1822 July 13]
    Description: [xxxviii. 22]

    1822 July 13

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    5 Moral Counterforce

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    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. Angliceā”Œ - 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.
  • Title: [[clx. 425] 1822 July 28 Constitut]
    Description: [clx. 425]

    1822 July 28

    Constitut. Code

    So much for power taken by itself: for power and the minimzation of it considered as a means of prevention applicable to the abuse of it. Now as to the other faculty - the will. By the force of that particular interest to the action of which every human breast is /stands/ exposed, every functionary is at every moment prompted as above to make by himself or to concurr in making the sinister sacrifice. If this sinister force can by any means be prevented from being /becoming/ in that way effective it must be by the operation of some counterforce added to that opposed by his share in the universal interest: sinister force the temptation, counterforce the sanction, antagonizing with one another. Under /As to/ the head of sanctions three of them there has been frequent occasion to hold up to view: the political including the legal, the popular or say the moral, and the superhuman, or say the religious

    For a counterforce to the natural to the native indigenous sinister interest

    1. First as to the political included the legal. The force of the sanction is the whole of it at the disposal of the rulers: therefore in the very nature of the case it can not be /is incapable it may be said/ opposed to theirs : if for a moment it were so, the next moment they would rid themselves of it. True. But though two rulers taken singly can not be made punishable legally punishable at the same time and for the same cause each of them by the will of the other, yet arrangements in considerable variety are by no means wanting in which opposition may even under an absolute Monarchy be opposed for a time at least to the will of the rulers even of the supreme ruler or rulers. Wherever for example in a Monarchy, were it only to satisfy those whom it may concern, that such as is expressed in a certain document is the will of the Monarch, the countersign, the name for example of some official servant of his is regarded as necessary, this servant so long as he continues in such his office has a negative upon that branch of his Masters power, and possesses in conjunction with a share in it