[xxxvi. 150]

1822 July 1

Constitut. Code Rationale

Supreme Operative

1 Morals

2 Intellectuals

Conclusion

Revolution producing change in the individual its insufficiency

After Intellectual as well as Moral Inaptitude as applied to a limited Monarchy - Conclusion.

Every Mixt Monarchy contains in its essence the principle /[...?]/ of suicide.

The result is - that in all branches - the inaptitude is on all occasions has been in all instances - not in the individual not in the particular individual in question but in the situation:- not in the particular nature of the individual in question in the general nature of the situation: and that the situation being what it is the inaptitude is absolutely irremediable: and that therefore whatsoever be the political state the existence of any such situation in the Official Establishment is utterly incompatible with the greatest happiness of the greatest number utterly incompatible with every thing to which the appellative of good government can with any propriety be applied.

That if by a good King is meant a King by whose existence more happiness would have place in the community than would have place if neither he nor any other individual possessing the same power were in existence - there never has been nor ever can be any such person as a good King: and that every man who is a King is by the mere circumstance of his being a King rendered of necessity a bad one.

In conjunction with external circumstances, idiosyncracy may have and in fact to a certain degree always does render this or that King less bad than this or that other But to the purpose of the enquiry /practical conclusion/, every such enquiry into the character of this or that individual in that same situation is needless and useless: indeed worse than useless the tendency of it being to lead men to suppose that by /from/ a substitution of one individual to another in that situation the evil may be not incapable /capable/ of receiving a remedy: which as already shewn is not true.

[xxxvi. 151]

1822 July 1

Constitut. Code Rationale

Supreme Operative

1. Moral

2. Intellectuals

Conclusion

What in this /such/ case is the measure of the quality of badness or say depravity in the human mind? Is it the quantity of human misery produced? Is it the degree of steadiness with which the probability of its being produced is contemplated, and the fixedness of the determination to persevere in the endeavour to give it existence /to it/? Is it the absence of that indigence /distress/ which in some cases is by universal /general/ acknowledgment sufficient to render depredation and even intentional homicide justifiable? With these criterions /considerations/ in mind compare the best of Monarchs with the worst of /most/ private and punishable malefactors - see whether as in the scale of political power so in the scale of moral depravity, the place of the ever unpunishable malefactor is not above that of the punishable malefactor /evildoer/.

As it is in regard to /in the case of/ that situation by which the largest mass of political power is conferred so is it in every inferior one The probable quantity of virtue in a man is not in the direct but in the inverse ratio of his altitude in the composite scale composed of power opulence, and factitious dignity

That which goes /is known/ commonly by the name of robbery is robbery without established /unestablished for want of/ power. Every Government other than a Democracy is robbery /established/ by means of established power.

[036-156v]

1821 May 18

Codification Offer

'.4. Draughtsman single

Now then as to Case 2. Functionary on whose will the ultimate effect of the Draught alias the Code - an all-comprehensive one - has received the force of Law, the Monarch: acting in subjection to that will, Draughtsman one.

So far as by the Monarch his interest - meaning on this occasion his self-regarding interest - is understood by him - and interest, laying out of the account prejudice and original weakness, operates, (a) and the indolence, so natural to that situation, admitts of his paying attention to it, the arrangements inserted will of course, from first to last be those which the view taken by him of that same particular and hence sinister interest as applied to the several parts of the field of legislation shall have pointed out: of that one interest, including of course as many other particular and thence sinister interests as it may have pleased him to admitt into participation of the benefit. (b)

(a)

Interest

prejudice

relative ignorance and original or inbred weakness - to one or more of these efficient causes may every aberration, from the line of conduct most aptly conducive to the greatest happiness of the greatest number, be referred: prejudice is either interest-begotten, authority-begotten, or habit-begotten: by prejudice being meant prepossession , in so far as it is regarded as delusive.

(b) Examples. Under James I st. of England Carr and Villiers recommended by their beauty: under Charles 1 st of d o, Laud recommended by piety; Wentworth by loyalty and dereliction of principle. Had Bacons codification proposal been accepted, such are the men to whose will he would have had to accommodate his draught. Whoever casts a glance on that proposal, and from thence on his Natural History may see that in Bacons days the times were no more ripe for an all-comprehensive and rationalized Code than for a system of Chemistry.

[036-157v]

1822 Feb. 21

Codification Offer

'.5. Admission Universal

III Reasons

Legislation School

Inserendum

By the votaries of that spurious and barbarous substitute to law which ought never to be mentioned without reproach, nor can ever be mentioned with reproach adequate to its mischievousness - institutions have been set on foot for everlasting augmentation of it, on pretence of everlasting elucidation, institution rendering darkness thicker and thicker, under the notion of augmenting light. To institutions of this sort, the appellation of a School of Jurisprudence may without improbability be, and probably has been, applied. But how opposite in their nature are any such Schools of Jurisprudence, and the here proposed School of Legislation! In that case, money expended, and the result a nuisance: a finite added to an already infinite nuisance in this case, no money expended, and the result pure good. In that case, explanations are heaped upon explanations - explanations of that which, though not being in existence - not having any determinate words belonging to it - is essentially and for ever incapable of being explained. In that case, the object of each founder and of each lecturer, is - that with a view to judicial decision, his new matter thus poured in, should, by as many more as possible, be read and studied in addition to the old: as if the greater the mass, the easier it would be for the Citizen to take it into his memory, and hold it there for use. How different is the case with the expected produce of the proposed Legislation School! Having no pretence to be taken for law - having no pretence to be taken for a guide to judicial decision - no memory is endeavoured to be loaded with it: to him who feels disposed to apply his mind to the consideration of new matter destined for the field of law - to him and him alone is it addressed.

[036-158v]

1821 Nov. 26

Codification Proposal

'.5 Draughtsman single

Codification in so far as comprehensive will exclude some of these evils, nullify the bad effects of the sinister interest: still however more or less opportunity of obtaining its ends will remain

One sinister interest there is which is common to all countries, and which can scarce fail to have place and operation and more or less influence in a body of this sort /thus circumstanced/ This is the interest of the lawyer class as such

On this occasion in speaking of the lawyer class it will be necessary to speak of them /consider them/ /can not be otherwise spoken of than/ as constituting one and the same /compact/ body having in all points one common interest, and that as will be seen a sinister one. Such in every country which a proposal such as this can look for acceptance is as yet the case: no man being a Judge who has not been an Advocate. In the hitherto existing state of the law this connection has been unavoidable: it is not in itself a necessary one. It will not be so in any country in which an all comprehensive and rationalized body of law executed as it is capable of being /might be/ is[?] constituted Of the direction /course/ in and of the force with which this sinister interest acts some intimation must be given, or the proof of the inaptitude of the ordinary authorities with reference to a work such as that in question would rest very incompleat would want much of the force which the nature of the case has given to it.

It is the interest of the greatest number that the state /purport/ of the law being as highly contributory as possible to the happiness of the greatest number the decision of the Judge should in each instance be as closely conformable as possible to the direction given by the text of the law, that so the power of the Judge be in as small a degree arbitrary as possible: that so the power possessed by the Judge of giving to each suit a result different from that intended by the legislature be as small as possible. in a word that the aggregate quantity of misdecision and undue refusal of decision be as small as possible It is the interest of the Judge that the power he has in his hands be as arbitrary as possible: that the fate of the suit /each cause/ be as compleatly dependent upon his particular will as possible. In a word it is the interest of the Judge that the aggregate amount of indecision and undue decision on his part at the suggestion of /in conformity/a sinister interest or prejudice of his own be as great as possible.

As this is the interest of the Judge as such that the fate of each cause or suit be as compleatly dependent upon his particular will as possible, so is /the like is/ it the interest of the lawyer of every other class

But in case of collision it is only by accident that the lawyer of any other denomination can cause his will to have effect in contrariety /opposition/ to that of the Judge.

[036-159v]

1822 Feb. 19 Employ or Not?

Codification Offer

'.5. Admission Universal

VI.

2

The usefulness of the open mode and at the same time its undangerousness being thus

manifest, a natural question is how happens it never to have been any where in use?

Natural enough this question: nor is the answer a difficult one. In the prevalence of

the interest of rulers in the breast of rulers over the interest of subjects /the people

subject to their rule/ may be seen the solution of this as of so many other problems.

The smaller the number is of those who are admitted to the exercise of the initiative

function, the greater /more efficient/ is the power of those by whom the consummative

function /power/ is exclusively exercised. If a law or a measure be unacceptable to you,

prevent it from coming in you get rid of it with much less trouble than if after

suffering to come in you had had to apply your strength to throw it out: and the smaller

the number is of those to /by/ whom the faculty of bringing in any such law or measure

is possessed open/, the less the greatest difficulty you can experience in your

endeavours to keep it from being brought in. The most obvious and simple course is

manifestly the confining the faculty of introducing a law or measure to those on /by/

/to whom/ /all/ or on a majority of whom appertains the faculty of giving binding force

to it Give the initiative function to a single person, excluding from it at the same

time all those by a /to whom or a/ majority of whom the consummative power appertains,

you put it in his power to reduce theirs to absolute nothing. Give that same initiative

function to a single person without the addition of any such exclusion, their power is

not destroyed indeed: but still it is to a certain degree weakened.

[036-160v]

1821 Dec. 19

Codification Proposal

'.10 Factit s remuneration bad

/'.5. Admission Universal/

VI

2

By the votaries of that spurious and barbarous substitute to law which ought never to be mentioned without reproach, nor can ever be mentioned with reproach adequate to its mischievousness, - institutions have been set on foot for everlasting augmentation of it, on pretence of everlasting elucidation institutions rendering darkness thicker and thicker, under the notion of augmenting light. To institutions of this sort, the appellation of a School of Jurisprudence may without impropriety be, and probably has been, applied. But how opposite in their nature are any such Schools of Jurisprudence and the here proposed School of Legislation! In that case money expended and the result a nuisance: a finite added to an already infinite nuisance: in this case, no money expended and the result pure good. In that case explanations are heaped upon explanations - explanations of that which not being in existence - not having any determinate words belonging to it - is essentially and for ever incapable of being explained. In that case the object of each founder and of each lecturer is - that with a view to judicial decision, his new matter thus poured in should, by as many men as possible, be read and studied in addition to the old: as if the greater the mass the easier it would be for the citizen to take it into his memory, and hold it there for use. How different is the case with the expected produce of the proposed legislation School! Having no pretence to be taken for law - having no pretence to be taken for a guide to judicial decision - no memory is endeavoured to be loaded with it: to him who feels disposed to apply his mind to the consideration of new matter destined for the field of law - to him and him alone is it adressed. True it is that, under a government in a nation in which the greatest happiness of the greatest number is the real end of every thing that is done in the way of government - true it is that in any such nation not an individual is there to whose situation it is incompetent to look into the body of the law in any of its parts with a legislator's eye. But this is what he may do or leave undone with equal security till he actually does so, no claim will the produce of the legislation School, or any part of it put in for his attention: and whatever part does, he will without danger of personal inconvenience be at liberty to look to or to leave unlooked to as he feels inclined.

[036-161v]

1821 May 18

Codification Offer

'.4. Draughtsman single

In this case, in so far as, in the eyes of a personage of such transcendent dignity, it may have been worth his while to bestow any attention on such a subject, it is by his individual interest as pointed out by his appetites and passions it is by that his sinister interest as in the case of any powerless individual it would be denominated, together with as many other particular and sinister interests as it may please him to admitt into a participation of the benefit by such his interests in conjunction with his prejudices and including those other interests, prejudices and weaknesses just spoken of that the substance of the several arrangements will of course be determined.

To this cluster of sinister interest, prejudices and weaknesses, will the greatest happiness of the greatest number, in so far as any competition has, or is supposed to have place, be of course mad a continual sacrifice: the only points in respect of which no such sacrifice, if any, which by the draughtsmen have been proposed to be made of the sinister interest of his employer to the greatest happiness of the greatest number have escaped his view.

As to the workman added by him to the sacrifices made of the universal interest, as above to the will, anticipated or declared, and thence to the sinister interests, prejudices and weaknesses, of his imperial or royal master, will of course be as many more as he can contrive to steal in, at the suggestion of his own sinister interests, prejudices and weaknesses, for his own benefit and accommodation, together with that of nay such individuals connected with him in the way of self-regarding interest or sympathy, as, on this occasion it may please him to take under his wing: more particularly all such as, in any apparently safe shape may to the disposition add the means, of making adequate demonstration of their gratitude.

[036-163v]

1821 Sept 21 /Dec r 22/

Codification Proposal

'.5. Draughtsman single

Taken together the several forms of sinister interest, interest-begotten prejudice and authority-begotten prejudice, constitute the seductive force the tendency of which is to draw aside the course of the workman and thence of his operation, and of the work from the line of appropriate aptitude. Any force the tendency of which is to keep the course of the workman and thence of the work steady in the right path in this same line of aptitude operates in the character of a guardian power or tutelary force. Such a force is the force of the tribunal of public opinion - otherwise termed the force of the popular or moral sanction, considered in its application/ as applying/ to this subject.

The seductive force is the temptation the inducement to take the wrong path: the tutelary force, the sanction acting in opposition to that body of temptation: the inducement to take the right path: to pursue to act in the line of appropriate aptitude.

[036-164v]

1821 June 5

Codification Offer

'.4. Draughtsman single

As to a rationale as above described, the Code in question, besides its being an all-comprehensive one, being by the supposition to be furnished with the sort of accompaniment thus denominated, not only the propriety but the possibility of its being executed in a case such as that in question is by the very supposition, excluded. It being by the very nature of man rendered impossible that in that situation the greatest happiness of the greatest number, or any other object than the greatest apparent happiness of the ruling one,- an object with the pursuit of which the pursuit of the greatest number is in the most important parts of the Code incompatible - any attempt to interweave, as above, with the obligatory part of the Code, an accompaniment of this sort could not supposing the workman known and known to be in subjection to his employer, promise itself any more acceptable effect than that of exposing Master as well as employer to ridicule.