1821. April 27.
First Lines
Constitutional
In a Representative Democracy, the exercise of this designative power is perfrmed by human judgment: under a Monarchy it is performed by fortune or providence. The cause being the same, and that cause out of the reach of our knowledge, each man may, on each particular occasion, do as he is accustomed to do, employ that one of the two which, on that occasion, is regarded by him as best suited to his purpose. Under the exercise made of this power by fortune, the supremem operative power finds itself, at the death of the last possessor, in the hands of the only child, or, in case of children more than one living at that moment, of the first born of the children of a certain woman: the power of removal is, under the direction of fortune or providence, or by accident, human judgment exercised by death.
In so far as the power of appointment is thus exercised by fortune or providence, no degree of relative inaptitude short of universally manifest and compleat insanity of mind has the effect of preventing the exercise of the operative power from finding itself lodged in the hands thus designated and appointed: no degree of inaptitude short of that produced by insanity, as above, takes the power of removal out of the hands of death
The
1821. April 27.
First Lines
Constitutional
The constitutional branch of law has, for its proper end, the greatest happiness of the greatest number. The propriety of this end will not easily be disputed. Under a Representative Democracy, the Constitutional branch of law has, for its actual end, that same exclusively proper end - the greatest happiness of the greatest number.
Accordingly, so far as it exists in the utmost degree of perfection in which it is capable of existing /the nature of the case admitts of./, the right of indicating, by the respective suffrages among what individuals the supreme operative power shall be shared is exercised by all: the concurrence of all in the effective designation of the individual by whom the share in question in the operative power shall be possessed, not being possible, were the wishes of one part of those by whom the suffrages are given point to one person while the wishes of another part point to another, the next most desirable result, with reference to the greatest happiness of the greatest number is that instead of being exercised by the whole number, the power shall be exercised by the greater part of it: such being the most desirable result, such accordingly is the actual result.
1821. April 27.
First Lines
Constitutional
Under an absolute Monarchy, the Constitutional branch of the law, has for its sole actual end, the greatest happiness of the one individual by whom /in whose hands/, without division, the whole of the supreme operative power is lodged.
For decency sake the end, thus actually and exclusively pursued, is not the end professed and declared to be pursued. For the designation of the end actually pursued, /a mixt/ regard for decency and conciseness as substituted /substitutes/, on each occasion, one or another of a small assortment of phrases: preservation of order, preservation of legitimacy, for example.
Under a limited monarchy, the Constitutional branch of law has, for its actual object a more complex article /objevt/: viz. the greatest happiness of the Monarch, coupled with, and limited by, the greatest happiness of the conjunctly or subordinately ruling few, by whose respective powers the limitations, such as they are, that are applied to the power of the Monarch, are applied.
1821. April 27.
First Lines
Constitutional
The persons in whose hands is lodged the supremem operative power, as also those in which whose hands the supremem designative power, (appointment and removal included,) is lodged be it /being/ determined, what remains for the matter of the Constitutional Code is the declaring in what manner the power and functions of the person in whose hands the designated power is lodged shall be exercised: as likewise the marking out, into a number of distinct branches, the whole mass of subordinate power,
1821. April 27.
First Lines
Constitutional
A Constitutional Code might in a certain sense be said to compleat if neither any distribution of operative power among subordinate authorities nor any mode of appointment or removal for the exercise in relation to the possessors of any such subordinate power were prescribed /contained/ in it. For by the description given, as above, of the supreme power, and the provision made as above for the exercise of the designative power with relation to the possessors of that same supreme operative power, provision would be made for all such subordinate arranements, as above, as it might be the pleasure of the possessors of those two branches of the supreme power to concurr in te making of.
Remains /Come/ now to be given a few leading principles relative to the matters belonging to the several departments or branches of law abovementioned, considered in so far as the nature and effect of the Constitution intended to be given by the Constitutional Code is liable to be affected and modified by any arrangements which have presented themselves in the first instance as appertaining respectively to those several antecedently /already/ considered branches.
1821. April 7th.
First Lines.
Explanations.
Civil Law
Subsistence, abundance, security and equality: by these then will be presented to view the several subordinate or particular ends most immediately in contact with, and branching out from, the only legitimate and universal end of Government - the greatest happiness of the greatest number.
By subsistence, understand the means of subsistence: by abundance the elements of subsistence and all other external and /tangible/ transferable instruments of gratification, and thence objects of desire, in quantity exceeding by an indefinite amount the quantity necessary to subsistence.
Neither subsistence nor abundance neither in /by/ the import of the word subsistence, nor in the import of the word abundance is any relation to futurity necessarily involved. In the import of the word security, that relation is constantly and necessarily involved: the present being at all times but a point, the word security can never present itself without presenting to view one point at least which is neither the present nor the past.
Security may be considered with reference to the objects which ae secured, and with reference to the objects against which they are secured.
Taking human beings individually considered, these are the only real entities considered as being secured. But when a particular and practical application comes to be made of the word security, certain names of fictitious entities in common use must be employed to designate so many objects to and for which the security is afforded. By the words person, reputation, property, condition in life - by these four names of fictitious entities all the objects to which, in the case of an individual, the security afforded by Government can apply itself may be designated. Reputation, property, condition in life - these are obviously names of fictitious entities: person as here employed ministers to the same purpose. For, to the present purpose, person means an object divisible into body and mind. For, security is against injury, and the body being exposed to one set of injuries, the mind is exposed to another, and an altogether different set
1821. April 7.
First Lines
Explanations
Civil Law.
The objects secured against are all of them comprisable under the name of a single fictitious entity - evil: but for every practical purpose one or other of the several sources from whence evil is considered as apt to flow require to be brought to view by apposite denominations. These may be afforded by one or other of two epithets annexed to the word evil: viz. the words purely physical and the word moral. By purely physical evil may be /is meant to be/ designated evil which has /having/ its /resulting from every/ source in operations cause in the operation of which human design /mind/ is not considered as taking any active part: by moral evil, evil in the production of which the human mind takes a part more or less active. In the different situations in which the persons in whose operations moral evil has its source, are capable of occupying with relation to those to whom the security is afforded, we have another /an ulterior/ source of division, and that a perfectly manifest and practical one. Be they who they may, considered as being persons from whose operations evil is liable to flow, and thence as persons against whose aggression the /security for the several/ members of the community is required, they may, with indisputable propriety, be designated by the term adversaries.
As to such internal adversaries
Evils considered in particular, and as being so many results of operations performed by /the operations of/ Adversaries, are termed injuries.
Internal Adversaries, when so far as the security afforded against injuries of which their agency is the immediate source is afforded by the operations of penal law are termed offenders, delinquents, criminals, malefactors: in so far as no such security is afforded by those same operations they are comprisable under the appellation of evil rulers.
1821 April 15
First Lines
Means
Ch
1. Distributive
3. Security
\PS\.3. Security -
Third on the list of the benefits which the Civil branch of the Law is occupied in distributing is security.
Security considered as applied to individuals has for its objects, four distinguishable possessions: person, reputation, property, and condition in life.
Security has for its adversaries, against whose enterprises it is to be afforded, three classes of persons differently situated and denominated viz. foreign adversaries considered as such, - foreigners considered in s far as they are, or are liable to become adversaries; fellow citizens or fellow-subjects, considered in that same light; rulers viz. of the country in question considered in that same light.
Of /As to/ the acts against which, security is to be afforded and by which in so far as they are committed /performed/, security is broken in upon and lessened, /they are/ in themselves and their immediate effects are the same, by which soever of the three species of adversaries they are exercised. Taken however in the aggregate, they are wont to be designated by a different denomination according to the situation of the class, to which the person or persons by whom they are exercised, is considered as belonging: if to that of foreign adversaries, they are denominated acts of hostility: if, to that of domestic adversaries, considered in the character of subjects, acts of delinquency; if to that of domestic adversaries, considered in the character of rulers, acts of oppression, or if the oppression be considered as to a certain degree flagrant, acts of tyranny: if
The mode /operation/ in which
1821 April 15.
First Lines
Means
1. Distributive
3. Security.
For the case in which the persons against whose enterprises the security is to be granted are foreigners /foreign adversaries/. see \PS\ Constitutional Law.
For the case in which the person or persons against whose enterprises the security is to be afforded occupy in relation to the persons to whom it is to be afforded, the situation of Rulers, see again \PS\ Constitutional Law. Remains the case in which the persons against whose enterprises security is to be afforded, are considered in the character of subjects.
In this instance, the principal and leading operation by which the security is afforded, consists in giving to the several acts distinguishable and accordingly distinguished acts by which the security considered as applied to the several abovementioned sorts of possessions, is considered as being broken in upon and lessened, the denomination, and character and in the case of the persons considered as engaged in the exercise of those acts, the effects of so many different offences considered with reference to the persons engaged in the exercise of those acts. But so nice and difficult of apprehension is in many cases the distinction - on the one hand between one mode of delinquency and another - on the other hand between the /each/ several modes of delinquency and innocence: - and so inadequate to the purpose of conveying in this case, a clear, correct and complete conception of the object denominated, is the denomination itself - any single word of which a denomination can be composed, - that to each such denomination, it is altogether necessary that a distinction /be subjoined/ - or to speak more extensively a exposition - be subjoined, as also on the occasion of each such exposition a portion of explanatory matter, applied to the several distinguishable terms of which, it is composed.
1821 April 15.
First Lines
Means
1 Distributive
3 Security
Where /Were/ nothing further necessary to the purpose, the list of these several definitions, (considered as being so many instruments employed in the process of affording, security, against these several /so many/ acts, by the exercise of which, in so far as they are exercised /security/ is broken in upon and lessened,) might without any apparent incongruity /impropriety/ be allotted to the branch of Law here in question. - viz the Civil or Distributive Branch. But such are the temptations by which, in the instance of each such /exciting /stimulating/ / offence, men are liable to be invited to the exercise of it, that unless, for the purpose of restraining them from the commission of those acts respectively, inducements of the nature of punishment were employed and announced, every such definition so sent abroad wothout support would be a dead letter and as such be without effect. Penal Law is the name given to that /therefore the/ branch of Law which occupies itself in the distribution of burthens to the intent of their having the effect of punishments: to each act to which a place is given in the list of offences as designated by their several denominations and definitions, its appropriate punishments or assortments of punishments. Thus it is that so much of the matter of Law as is occupied in the affording of security in these its several modes is universally and with indisputable propriety considered as belonging to the branch of Law denominated Penal Law.