Front Page Titles (by Subject) CHAPTER II.: CONSTITUTIONAL LAW. - The Works of Jeremy Bentham, vol. 9 (Constitutional Code)
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CHAPTER II.: CONSTITUTIONAL LAW. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.
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In every community in which a constitutional code, generally acknowledged to be in force, is in existence, a really existing constitutional branch of law, and with it, as the offspring of it, a constitution, is so far in existence.
In no community in which no constitutional code thus generally acknowledged to be in force, is in existence, is any such branch of law as a constitutional branch, or any such thing as a constitution, really in existence.
In a community in which, as above, no such thing as a constitution is really to be found, things to each of which the name of a constitution is given, are to be found in endless multitudes. On each occasion, the thing designated by the phrase “the constitution,” is a substitute for a constitution,—a substitute framed by the imagination of the person by whom this phrase is uttered, framed by him, and, of course, adapted to that which, in his mind, is the purpose of the moment, whatsoever that purpose be; in so far as that purpose is the promoting the creation or preservation of an absolutely monarchical form of government, the constitution thus imagined and invented by him is of the absolutely monarchical cast; in so far as that purpose is the promoting the creation or preservation of a limitedly monarchical form of government, it is of the limitedly monarchical cast; in so far as the purpose is the creation or preservation of a democratical form of government, it is of the democratic cast.
The Anglo-American United States have a constitution. They have a constitutional code; the constitution is the system of arrangements delineated in that code.
It has for its object the greatest happiness of the greatest number, and in pursuit of that object, the powers of government are allotted by it to the greatest number.
The French and Spanish nations have constitutions. The English monarchy has no constitution, for it has no all-comprehensive constitutional code, nor in short, any constitutional code whatsoever generally acknowledged as such; nor by any one individual of the whole community acknowledged as such. Hence, so it is, that of the assertion contained in the phrases, “excellent constitution,”—“matchless constitution,” an assertion by which every endeavour to produce the effect of the worst constitution possible is so naturally accompanied, no disproof can be opposed otherwise than by the assertion of a plain and universally notorious matter of fact, viz.—that the English people have no constitution at all belonging to them. England, not having any constitution at all, has no excellent, no matchless constitution; for nothing has no properties. If ever it has a constitution, that constitution will most probably be a democratical one; for nothing less than an insurrection on the part of the greatest number, will suffice to surmount and subdue so vast a power as that which is composed of the conjunct action of force, intimidation, corruption, and delusion.
The constitutional branch of law, is that branch, by which designation is made of that person, or those persons, to whose power it is intended, that on each occasion, the conduct of all the other members of the community in question shall be subjected.
The power which is here conferred is the supreme power.
Of the supreme power thus designated, that is to say, of the aggregate of the operations by which the exercise of it is performed, there are, of necessity, two perfectly distinct branches, the operative and the constitutive: the operative, is exercised by the declaration made of the all-directing will above alluded to; the constitutive, is exercised by the determination made of the individual or individuals, by whom the operative power is exercised.
Constitutional law has for its object, security against misrule; security against those adversaries of the community, in whose instance, while their situation bestows on them the denomination of rulers, the use they make of it, adds the adjunct evil, and thus denominates them evil rulers.
In a code of constitutional law, as has been already observed, arrangements of two different complexions must have place; one set of the nature of those belonging to the distributive or civil branch of law, having for their occupation the distribution of the powers of government, with the opposite and correspondent burthens: the other set presenting a penal aspect, having, for their occupation, the giving a description of a particular class of crimes, and of the means employed against them, in the character of remedies. But that the thread may not be interrupted, convenience recommends the placing what belongs to these crimes, in company with what belongs to others, in the penal code. On the occasion of ordinary offences, the persons against whose mischievous enterprises, the security is to be afforded, are individuals at large. On the occasion of this particular class of crimes, to individuals considered in the character of subjects are added, or substituted, individuals considered in the character of rulers. This distinction, the draughtsman will, when occupied on the penal code, at all times keep in view.
In the situation of a ruler as such, in a monarchy, no act that he can commit, be it in ever so high a degree mischievous, wears the denomination of a crime: king, or by what other denomination designated, a ruler can do no wrong. For the same evil act which, if committed by a subject, would be wrong, becomes, by the mere circumstance of its being committed by a ruler, not wrong, but right.
So far as it wears the complexion of penal law, constitutional law has these two for its distinguishable and contrasted objects: first, the ordering matters so, that those who, to some purposes and on some occasions, occupy the situation of rulers, shall, in respect of their conduct in that and other situations, be liable to be dealt with, in the character of offenders, delinquents, criminals: could the ordering matters so, that to acts done in resistance to, or for prevention of, misrule, and thence productive of more good than evil,—to such acts, of whatever penal denomination they may appear susceptible, no such punishment, if any, shall be allotted, as might, with propriety, be allotted to them, if the application of them to the prevention of misrule had no place.
Under an absolute monarchy, the constitutional branch of the law has, for its sole actual end, the greatest happiness of the one individual, in whose hands without division, the whole of the supreme operative power is lodged.
For decency’s 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, regard for decency and conciseness, 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 object; 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 that are applied to the power of the monarch, are applied.
Under a representative democracy, the constitutional branch of law has, for its actual end, the greatest happiness of the greatest number.
Accordingly, so far as it exists in the utmost degree of perfection which the nature of the case admits 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, wherever 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.
In a representative democracy, the exercise of this designative power is performed 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 terms, which, on that occasion, is regarded by him as best suited to his purpose. Under the exercise made of this power by fortune, the supreme 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, 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 complete insanity of mind, has the effect of preventing 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 persons in whose hands is lodged the supreme operative power, as also those in whose hands the supreme designative power, (appointment and removal included,) is lodged, being determined, what remains for the matter of the constitutional code, is the declaring in what manner the power and functions of the persons, in whose hands the designative power is lodged, shall be exercised: as likewise the marking out into a number of distinct branches, the whole mass of subordinate power.
A constitutional code might, in a certain sense, be said to be complete, if neither any distribution of operative power among subordinate authorities, nor any mode of appointment or removal in relation to the possessors of any such subordinate power, were 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 arrangements, as above, as it might be the pleasure of the possessors of those two branches of the supreme power, to concur in the making of.