[xxxvi. 172]

1822 July 24

Constitut. Code Rationale

Supreme Operative?

Supreme Constitutive

in people

Enmity between high and

low is not reciprocal

The worst that could happen to the ruling and influential few from power if vested in the hands of the many that is to say /say rather/ of all themselves the ruling few included - is to see themselves, brought down to the level of /an equality/ the many in all things wealth excepted: in respect of power, to the having no more than an equal chance for power in respect of factitious honor to be without it /divested/, the many being at the same time unpossessed of it

While the triumvirate of the wealthy the powerful and the factitiously dignified reigns injustice to the prejudice of the greatest number reigns in every part of the field of government: injustice to /for/ the benefit of the /these/ few at the expence and to the burthening of the many. Suppose that portion of the aggregate mass of power which they are capable of holding - suppose the Constitutive power - in the hands of the many /greatest number/, what in respect of justice and injustice would be the consequence? Not the reverse of the present state of things: not injustice to the benefit of the many at the expence of the few, but justice to all alike

Take England for example. By the factitous expence imposed /purposed/ on justice /judicial proceedings/ nine tenths of the population to say the least are excluded from the benefit of justice as well in the character /situation/ of defendants as in that of plaintiffs. a line is thus drawn between the wealthy and the non-wealthy: wealthy all those who are capable of demanding the assistance of the judicial office; or resisting the demand when made at their charge by others: the non-wealthy all those who are incapable all those whose situation is below the line of separation are /lie/ at the mercy of all those whose situation is above it. Now suppose this factitious burthen compleatly removed, what would be the consequence? that the wealthy would be at the mercy of the non-wealthy? No: only that they /these few/ would cease to see the many lying absolutely at their mercy: and that both /in so much that the two/ parties would have to contend upon terms less unequal than at present. I say less unequal - for as to absolute equality this is what the very nature of the case absolutely forbids. For it is upon evidence that the fate of every cause depends, and evidence is not in every case to be had altogether without expence: and to the necessary amount of this expence, even when all factitious expence is struck off, no determinate limits can be assigned.