1821 May 2
First Lines
/Supreme Constitution
Election
3 Equality
3. Equality.
By equality of suffrage, is meant equality of effect as between a suffrage given in this or that one election district, and a suffrage givn in this or that other, election district.
Understand here by equality, nothing more than the absence of such degrees of inequality, that /as/ would be productive of some one or more evils of the following description, to a sensible amount:-
Evil the first. In this or that election district, the number of electors so small that by intimidation, or corruption, freedom of suffrage might be destroyed. By secresy of suffrage, intimidation might be excluded. But unless by a mistake of the electors, as compared with the value of of the situation filled, and the quantity of the means of corruption in the hands of candidates, to exclude corruption is impossible.
Evil the second. 2. In this or that election district, the number of Electors so great, that in comparison of a vote in this or that other election district, a vote is in a sensible degree inferior in value. This being the case all men /voters/ in such overpeopled district, feel a sensation of injury, from the comparison of their situation with that of the electors in an under peopled, or even in an adequately peopled district:
3 Proportioned to the smallness thus produced in the effect and value of a vote, will be the probability of its being outweighed by the loss of time necessary to the delivery of it. In the instance of all. Upon all in whoseinstance the advantage of voting is thus outweighed by the inconvenience, a virtual exclusion is thus put.
4. The greater the distance between the spot /place/ at which the votes are delivered, and the place of his /an/ election abode, the greater is the inconvenience in respect of time lost, with or without concomitant expense. Evil 3, is common to Town and Country Districts: this evil is peculiar to Country districts.
1821 May 5
First Lines
Divisions
General division of the aggregate body of the Law.
Taking in the aggregate /On viewing/ the aggregate of that which in any century has the force of law, it will be found divisible in the first place, the whole of it, into two portions or branches: viz in the first place, that in which the rule of action is laid down, simply and absolutely, without reference to the functions of any such members of the community, as those whose business it is, under some such name as that of Judges, or ministers of justice, to service the observance of: in the next place that in which a description is given of the course to be taken by those same official persons for securing the observance of, and giving execution and effect to, that same the several arrangements continued in that same main or substantial branch. This branch may be distinguished by the name of the adjective branch of law of judiciary procedure.
Taken in the aggregate t/T/he main or substantive portion or branch of the law, may again be distinguished into two portions or branches: in the first place that in which individuals are considered separately only and in their private capacity. This may be distinguished by the name of pivate law - in the next place, that by /in/ which men /individuals/ are regarded collectively and in some collective capacity, with a view to the powers necessary to be exercised by some of them over others, for the good of the whole: this branch may be distinguished be the name of public or constitutional law.
1821 May 5
First Lines
Divisions
The law cannot in any part of it operate without doing more or less towards the making distribution of benefits and burthens.
It may Burthens /it may/ distribute /attribute/ or impose without distributing /attributing/ or conferring benefit, in any shape: benefit in any shape that /is/ cannot confer without at the same time imposing burthen, in a correspondent shape either on the individual benefited or intended to be benefited, or on some other or others: most commonly on some other or others: most commonly even on all others with little or no exception.
Taken in the aggregate, t/T/he whole body of the law may again by another division, derived from the source just mentioned, be distinguished in the /into/ two branches: viz. 1. that which is occupied in the distribution /description/ of the distribution intended to be made of benefits and burthens respectively as above, This branch may be styled the distributive branch of law. 2. That which is occupied in the description of the arrangements for giving effect to such distribution by furnishing individuals with inducements adequate to the purpose of securing /rendering/ their conduct conformable to the plan of distribution so marked out.
Of the inducements thus employed some will be of as disagreable nature and thus come under the notion of burthens: others of an agreable nature; and thus come under the notion of benefits.
That branch of Law, the arrangements of which are occupied in the application of burthens to the purpose of securing conformity to the arrangements made by the distributive branch of law is distinguished by the name of penal law.
That branch of law the arrangements of which are occupied in the application of benefits to the purpose of securing conformity to the arrangements made by the distributive branch of law, may be distinguished by the name of remuneratory or remunerative branch of Law
1821. May 5th.
First Lines
Divisions.
In so far as burthens are distributed /attributed/ and imposed, it is or ought to be to no other purpose than that of conferring the corespondent benefits. In so far as the individuals on whom the benefits are intended to be conferred are individuals considered separately and in their private capacity, the portion of the law by which the benefit is distributed, attributed and conferred will naturally present itself to view as occupied in the distribution, attributing and conferring of benefits. This branch of law, in so far as it is susceptible of a separate consideration, may be distinguished by the name of the beneficially distributive branch of distributive law: in so far as the individuals on whom the benefits are intended to be conferred are the whole number of the individuals of which the community in question is composed, or some large and extensively comprehended portion of that same whole number - so large as that the individuals comprehended in it are not individually assignable, the portion of law by which the benefit is distributed, attributed and conferred will naturally and almost unavoidably present itself as occupied in the distribution attribution and imposition of burthens. Thus it is, for example, in the case of those laws which are occupied in the imposition of taxes, or other forced contributions: with whatever degree of subserviency to the greatest happiness of the greatest number those taxes are imposed, and the produce of them employed, that is to say, the /quantity of/ the matter of applicable to the immediate purpose of conferring benefit to individuals, applied to the ultimate purpose of conferring benefit on the community, as above, taken at large. This branch of law, in so far as it is susceptible of a separate consideration, may be distinguished by the name of the onerously or burthensomely or rather the onerously distributive branch of distributive law.
Of
1821. May 5th.
First Lines
Divisions
Of the whole body of the law or rule of action capable of having force in any country, one preeminently remarkable division, derived from a correspondently remarkable source and pervading the whole mass, still remains. It is that by which it is distinguished into two branches - the arrangements of one of which are arrangements that have really been made - made by the hands universally acknowledged as duly authorized and competent to the making of such arrangements, viz. the hands of the Legislator General or set of Legislators General, or their respective subordinates. This branch of law may be /stand/ distinguished from that which is correspondent and opposite to it by the name of real law, really-existing law, legislator-made law: it stands in English under the English government it stands already distinguished by the name of statute law, as also by the unchacteristic undiscriminate and in so far improper appellation of written law: the arrangements supposed to be made by the other of them, being in so far as they are arrangements of a general nature applying not only to individuals assignable but to the community at lareg, or to individuals not individually assignable, being /may be /stand// distinguished by the appelations of unreal, not really-existing, imaginary, fictitious, spurious, judge-made law, in /In/ English under the English government it stands already /actually/ distinguished by the unexpressive uncharacteristic and unappropriate names of common law and unwritten law.
of
1821. May 5.
First Lines
Divisions.
Of the manner in which this wretched substitute to real and genuine law is framed /formed/, take this description. In the course of a suit in which application is made of the rule of action thus composed, the judge, on each occasion, pretends to find ready made, and by competent authority en[...?] with the force of law, and at the same time universally known to be so in existence, and so in force, a proposition of a general aspect adapted to the purpose of affording sufficient authority and warrant for the particular decision or order which, on that individual occasion, he accordingly pronounces and delivers.
Partly from the consideration of the general propsitions fo framed, as above, by this or that judge or set of judges, partly from the consideration of the individual instruments or documents expressive of such individual decision or order as above, or framed in consequence of and in alledged conformity thereto, partly from the consideration of such arguments /discourses/ as have been, or are supposed to have been, suffered whether by the judge or by /the/ advocates on /one or/ both sides on that same occasion, a set /class/ of men /lawyers/ have, under the general names of general treatises or reports of particular cases, concurred in the composition of an immense and continually encreasing chaos - the whole of it written, and a vast portion of it printed and published, constituting an ever encreasing body of that which, having law for its subject, may, in so far with propriety be termed being not only written but printed be termed with propriety written though in actual usage it forms a part of the whole of the matter which passes under the denomination of unwritten law.
1822 July 4
Constitut Code Rationale
I Supreme Constitutive
Why in all
I. Monarch
1 Moral Aptitude
Self preference
Art. The Supreme Constitutive power is in the great body of the People
? Self-preference - how while /why/ in a Monarchy /Monarch/ its effects are preponderantly detrimental: in a representative Democracy preponderantly contributory, to the greatest happiness of the greatest number.
Whatever be the form of government, a man will prefer his own happiness /felicity/ to that of all others put together: his wish and upon occasion his endeavour will be get into his own hands all the several external instruments of felicity in the greatest quantity possible. For this purpose his wish and upon occasion his endeavour will be at the expence of all others to committ depredation to the greatest extent possible But upon every occasion that presents itself as favorable, this depredation will at the hands of all those at whose expence it is exercised produce the endeavour to escape from it - in a word self-preservation from it, and to that end, in so far as it seems consistent with personal safety, resistance. But even by such endeavour at evasion much more by resistance, on the one part, anger will be produced on the other thereupon partly for securing the faculty of exercising the depredation, partly for the gratification of the passion of anger, oppression will be added and by whatever causes it is produced in any the slightest degree the disposition and the habit of exercising it in the greatest degree which circumstances admitt of will be continually on the encrease Thus it is that by the innate propensities of mans nature propensities necessary to the very existence of the species, every man is rendered at least in desire and wish and upon occasion in endeavour, a depredator and an oppressor In the situation of Monarch the joint powers of force, intimidation, corruption and delusion /his incorporeal instruments of misrule/ supply a man with corporeal instruments, sufficient to enable him to afford the /grant[?] to these desires the requisite correspondent/ gratification sought by him: and thus it is that the power being added to the desire the correspondent effect - /is produced: the correspondent effect/ in this /the present/ case the unquestionable sacrifice of the real felicity of the greatest number of a million to the questionable felicity of this one.
1822 July 4.
Constitut. Code Rationale
Supreme Constitutive
Why in all
In the breast /instance/ of each individual member of that same community, whatever it be, this same sinister desire, the desire of making to the profit of his own happiness, the sinister sacrifice, has place: but in the instance of no such individual has the power any place: to his purpose the incorporeal instruments /requisites/ are wanting: and these being wanting, the corporeal instruments are so too. In his endeavours to secure himself against depredation and oppression, each man finds all others in general disposed to become co-operators and supporters: for against depredation and oppression to /at/ his own prejudice /expence/, no man /one of them/ can find any means of security that will /but such as can not but/ afford the like security to other individuals in general. Accordingly in this case the power being added to the desire the corresponding good effect has place. But in any endeavours he might use to exercise depredation and oppression at the expence of others in large multitudes no man, who, not having the incorporeal instruments, has not at his command the corporeal ones, will find co-operators and supporters in number and force adequate to the purpose: accordingly in this case, the power not being added to the desire, the corresponding evil effect does not take place.
Though in all men /breasts/ these same propensities must be acknowledged to have place, and in all men the correspondent desires have place accordingly, and upon occasion to a greater or less extent go on into act /become productive of correspondent acts/ yet the difference between the strength of the desire in the one situation and the strength of the desire in the other situation is prodigious. In the case of those desires which have for their object corporeal gratification or exemption from corporeal suffering, the force of the desire is not taken away or lessened by the absence of hope, or say by the absence of expectation of the power of of gratifying them: witness the desires of hunger and thirst. But in the case of those desires which have for their object any such complex good as is denoted by the appellations of power, or money, in the quantities attached to political situations, the absence of the corresponding expectation is capable of keeping the desire in a state in which it is altogether void of efficiency compleatly inefficient, and even to the individual himself, for want of attention to what passes in his own mind, imperceptible.
1822 July 4
Constitut. Code Rationale
Supreme Constitutive
Why in all
Thus it is that the existence, not only of gratification, but even of desire itself, depends /may depend/ upon a union with power. In France Washington /a Franklyn[?]/ might have been no more than a Bonaparte: in the Anglo-American United States Bonaparte might have been a Washington in France, a Washington might have been no more than a Bonaparte. In the breast of Washington, he being a man, it can not have been but that the desire of depredation or oppression or both to be exercised on the large scale must every now and then /at times/ have had place, and been more or less troublesome. Why? because the power of affording to a greater or lesser extent gratification to such desire could not have been wholly unaccompanied by hope. But, of by [...?] the greater number of those by whose suffrages Washington was located in the situation which gave him the power of being what he became, take any one at random, no probability of his having ever been actuated or even troubled by any such desire will be found in his instance. Why? because in his breast there can not have been any hope of being able to gratify /gratifying/ it
1822 July 4
Constitut. Code Rationale
Supreme Constitutive
Why in all
Now then in a representative democracy, take any one member of the community, acting in the situation of a functionary of the constituent class, acting in the exercise of the supreme constitutive power - that power which is such with relation to the supreme operative. His desire is to afford to himself security against depredation and oppression: such being his ultimate desire, his intermediate desire is - to see located in the situation of his Representative, a man who, appropriate desire and power in all shapes included, appears to him likely to contribute in a degree more than any other man would to his possession of that same security: such is desire, and such accordingly is his act:- the act by which he gives his vote.
Meantime his desire is - or at least in a certain case would be to exercise and cause to be exercised for his own benefit, depredation and oppression to an indeterminate amount at the expence of all other men without distinction and in particular at the expence of his fellow-citizens. But in /towards the gratification/ this desire, he sees not among any considerable number of his fellow Citizens, and in particular among the Candidates for the seat in question, any one to whom he can look to with any expectation of finding co-operation and support. The consequence /What follows/ is - that having no expectation of promoting by his vote any /that particular and/ sinister interest which either is peculiar to himself, or can not be shared in with him but by a comparatively few, he limits /restricts/ his endeavours to the employing of it in giving support to his share in the universal interest: to that interest which finds in every other voter an interest by which he is urged to contribute his endeavours towards the accomplishment of that same all comprehensive and universally beneficial end: he gives his vote to that Candidate whom by all men[?] taken together he expects to find willing and able to contribute in a greater degree than any other to the accomplishment of it.