Front Page Titles (by Subject) CHAPTER V.: CONSTITUTIVE AUTHORITY. * - The Works of Jeremy Bentham, vol. 9 (Constitutional Code)
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CHAPTER V.: CONSTITUTIVE AUTHORITY. * - 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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Constitutive what—in whom.
Art. 1. The constitutive authority is that, by which at all times the holders of the several other authorities in this state, are what they are: by it, immediately or interventionally, they have been in such their situations located, and therefrom are eventually dislocable.
Art. 2. The Constitutive authority is in the whole body of Electors belonging to this state: that is to say, in the whole body of the inhabitants, who, on the several days respectively appointed for the several Elections, and the operations thereunto preparatory, are resident on the territory of the state, deduction made of certain classes. Mode of exercise, as per Election Code: as to which, see Ch. vi. Legislature. Section 4 to 13.
Art. 3. Classes thus deducted, are—1. Females; 2. Males, non-adult: that is to say, who have not attained the age of  years. 3. Non-readers: that is to say, those who have not, as per Ch. vi. Legislature, section 5, Electors who, by reading, given proof of appropriate aptitude. 4. Passengers.
Art. 1. Subordinate to the Constitutive authority, as per section 1, are all other authorities, and thereby all other public functionaries belonging to the state.
Those whom it cannot dislocate in an immediate, it can in an unimmediate or say interventional way; to wit, by dislocating those who, having the power, have failed to dislocate them, in conformity to its sufficiently understood desire.
Art. 2. Exercisible by the Constitutive, in relation to them respectively, are the several functions following, with the power therein essentially included. These are—
I. Locative function: exercised by locating, in the official situation in question, the individual in question.
II. Dislocative function: exercised by dislocating, out of the situation in question, the functionary therein located.
III. Punifactive function: exercised by putting, at the time of dislocation, in a way to be punished, but by a different authority, the functionary so dislocated.
Art. 3. I. Locative function. Functionaries, in relation to whom this function is exercised by the members of the Constitutive authority, are as follows—
I. Their Deputies, deputed by them to the legislature, to act as Members of the Supreme Legislature, styled collectively the Legislature. In relation to all these, this power is exercised by the members of the whole Constitutive body, as divided into the bodies belonging to the several Election Districts; in each District, the Members of the Constitutive electing for that District a member of the Legislature.*
Art. 4. II. The members of the several Sub-Legislatures. In relation to each sub-legislative body, this power is exercised by the members of the Constitutive body, belonging to its District, as divided into the bodies belonging to the several Subdistricts therein contained; the body belonging to each such Subdistrict electing a member of the Sub-legislature.
Art. 5. II. Dislocative function. Functionaries, in relation to whom this function may upon occasion be exercised, are the following:
1. The several Members of the Legislature.
2. The Prime Minister.
3. The several Ministers belonging to the Administrative Department: as per Ch. ix. Section 2.
4. The Justice Minister.
5. In each Judicatory, Appellate as well as Immediate, the Judge and the several other Magisterial functionaries, as per Ch. xii. Judiciary collectively. Section 3, Judiciary functionaries.
6. In every such situation, as above, every Depute.
7. The several Local Headmen and Local Registrars.
8. The several Members of the several Sub-legislative bodies.
Art. 6. Exercisible, upon occasion, in like manner, by the Constitutive authority belonging to each District, is the dislocative function, in relation to the several functionaries following—
1. The several Members of the Legislative body belonging to that same District.
2. The several District Prime Ministers, or say Premiers, serving under the several Sub-legislatures.
3. The several District Ministers, serving under the several Sub-legislatures and their several District Prime Ministers.
Powers exercised, how.
Art. 1. I. Locative function. Exercised, in relation to the several members of the Legislative body, is the locative function of the Constitutive, in the several Election Districts and Subdistricts, in the Election Code, as per Ch. vi. Legislature, Section 4 to 13.
Art. 2. Exercised is this same function, in relation to the several members of the several Sub-legislative bodies,—in the same manner as there delineated, with reference to the several members of the Legislature.
Art. 3. In each Subdistrict, immediately after he has voted for a Deputy to act as a member of the Legislature for the District, each member of the Constitutive body will, at the same place, and in the same manner, vote for another Deputy to act as a member of the Sub-legislature of that same District. The arrangements of detail,—necessary to adapt, upon the same principles, the mode of ascertaining the election of a member of the Legislature, to the case of a member of a Sub-legislature,—are, upon the face of the Election Code, obvious: they will be settled in terminis by the Legislature.
Art. 4. II. Dislocative function, 1.—How exercised by the entire Constitutive.
On the receipt of a requisition, signed by (one fourth?) of the whole number of the Electors of any Election District, requiring the dislocation of any functionary in section 2, Powers, Art. 5, the hereinafter-mentioned Election Minister will appoint a day or days, as near as may be,—on which, in the several Districts, the Electors shall meet at the several Voting Offices of the several Subdistricts therein respectively contained, in the same manner as on the occasion of an Election. The Voting Cards of those who are for the proposed dislocation, will, on the concealed surface, as per Ch. vi. Legislature, Section 8, Election apparatus, Art. 4, bear the words “Dislocate him:” of those who are against the proposed dislocation, the words “Retain him.” In each District, the votation finished, the Voting-box will, by the Vote Clerk, be forthwith transmitted to the Election Minister’s Office. By the Election Minister, as soon as all are received, or the time for receiving them is elapsed, they will, in concert with the Legislation Minister, be opened in the Legislation Chamber, at the next sitting of the Legislature. The numbers will thereupon be immediately cast up, and the result declared. In case of dislocation, the vacancy produced on this extraordinary occasion will thereupon be forthwith filled up, in the same manner as on any ordinary one.
Art. 5. 2.—How by the Constitutive of a District.
Proportion, of the requisitionists, the same in this case as in that of the entire Constitutive, as above. Voting Boxes transmitted to the Election Clerk of the District. As soon as all have been received, or the time for receiving them has elapsed, he, at the next sitting of the Sub-legislature, opens them, in concert with the Legislation Minister of the District, in the Sub-legislation Chamber; casts them up, and declares the result, as above. The vacancy, if any, is thereupon filled up, as above.
Art. 6. By such requisitionists, as per Art. 4, 5, will be seen the propriety of making the ground of the requisition as particular and determinate, as well as concise, as the nature of the case will admit: that is to say, the description of the alleged misconduct, with the intimation of the manner in which it has diminished, or tended to diminish, the aggregate happiness of the greatest number; referring to written evidence, if any such there be, but not repeating it or commenting on it, much less employing appellatives dyslogistic or eulogistic, or addresses to the passions in any other shape, or fallacies in any shape. As to which, see The Book of Fallacies. The less their regard for these cautions, the less (they will understand) will be the probability, that their requisition will be productive of the effect desired by it.
Art. 7. III. Punifactive function—how exercised. If, in addition to dislocation, in the case mentioned in Art. 4, punification be required,—in this case, together with the pair of Voting Cards, bearing respectively the words Dislocate him and Retain him, will be delivered by the Vote Clerk, another pair, bearing in like manner the words Accuse him, and Absolve him. Thereupon, in regard to accusation and absolution, the result will be ascertained and declared, in the same manner, as in regard to dislocation and retention, as above.
Art. 8. If the majority be, as above, in favour of accusation, the Election Minister will, as per Art. 4., make declaration to that effect: in which case, by that same declaration, the function and duty of conducting legal pursuit to that effect, devolves at the instant upon the hereinafter-mentioned Government Advocate-General, as to whom, see Ch. xix. Government Advocate-General.
Art. 9. The judicatory, in which such pursuit will be carried on, will be the Legislation Penal Judicatory, as per Ch. vi. Legislature, Section 28, Legislation Penal Judicatory.
Art. 10. But should it ever happen that the functionary in whose instance, in addition to dislocation, punishment is required, is at that same time a member of the Legislature,—in such case, for avoidance of partiality, and the imputation of partiality, on the part of the Legislature, the requisitioners may take their choice as between that year and the [three] several years next ensuing.
Public-Opinion Tribunal:* —Composition.
Enactive. Expositive. Ratiocinative.
Art. 1. This constitution recognises the Public-Opinion Tribunal as an authority essentially belonging to it. Its power is judicial. A functionary belonging to the Judiciary, exercises his functions by express location—by commission. A member of the Public-Opinion Tribunal exercises his functions without commission; he needs none. Dislocability and puniability of members excepted, the Public-Opinion Tribunal is to the Supreme Constitutive what the Judiciary is to the Supreme Legislative.
Art. 2. Of the following members may this Judicatory be considered as being composed.
1. All individuals of whom the Constitutive body of this state is composed.
2. All those classes which, under Section 1. Art. 3., stand excluded from all participation in such supreme power.
3. Of all other political communities, all such members, to whom it happens to take cognizance of the question, whatever it may be.
Art. 3. Of this Judicatory, different classes or assemblages of persons may be considered as constituting so many Committees or Subcommittees. Examples are as follows—
1. The auditory, at the several sittings of the Supreme Legislature.
2. The auditory, at the several sittings of the several Sub-legislatures.
3. The auditory, at the several sittings of the several Judicatories. See Ch. xii. Judiciary Collectively, Section 2, Actors in the judicial theatre.
4. Persons having business with the several functionaries belonging to the Administrative department; such business excepted as, for special reasons, shall by law have been consigned to temporary secrecy.
5. At meetings, publicly held for the consideration of any political question, the several individuals present.
6. The auditory, at any dramatic entertainment, at which objects of a political or moral nature are brought upon the stage.
7. All persons taking for the subject of their speeches, writings, or reflections, any act or discourse of any public functionary, or body of public functionaries, belonging to this state.
Art. 4. Public Opinion may be considered as a system of law, emanating from the body of the people. If there be no individually assignable form of words in and by which it stands expressed, it is but upon a par in this particular with that rule of action which, emanating as it does from lawyers, official and professional, and not sanctioned by the Legislative authority, otherwise than by tacit sufferance, is in England designated by the appellation of Common Law. To the pernicious exercise of the power of government, it is the only check; to the beneficial, an indispensable supplement. Able rulers lead it; prudent rulers lead or follow it; foolish rulers disregard it. Even at the present stage in the career of civilisation, its dictates coincide, on most points, with those of the greatest-happiness principle; on some, however, it still deviates from them: but, as its deviations have all along been less and less numerous, and less wide, sooner or later they will cease to be discernible; aberration will vanish, coincidence will be complete.
Art. 1. To the several members of the Public-Opinion Tribunal, as such, belong the distinguishable functions following; namely—
1. Statistic, or say Evidence-furnishing function. Exercise is given to it, in so far as indication is afforded of facts, of a nature to operate as grounds for judgment, of approbation or disapprobation, in relation to any public institution, ordinance, arrangement, proceeding, or measure, past, present, or supposed future contingent, or to any mode of conduct on the part of any person, functionary or non-functionary, by which the interests of the public at large may be affected.
Art. 2. Censorial function.—Exercise is given to it in so far as expression is given to any judgment of approbation or disapprobation, in relation to any such object as above.
Art. 3. Executive function.—Exercise is given to it in so far as, by the performing or withholding of good offices, such as a man is by law warranted in withholding, or by the performing of evil offices, such as a man is by law allowed to perform, addition—whether in consequence of such indication, as above, or otherwise—is made to, or defalcation made from, the happiness of the person in question, as above; and as by the thus withholding of good offices the effect of punishment, so by the rendering of them may the effect of reward, be produced.
Art. 4. Melioration-suggestive function.—Exercise is given to it in so far as, from the observation of what is amiss or wanting, a conception of something better having been formed, has, as such, been held up to the view of those whom it may concern, to the end, that if approved, it may be brought into practice.
Art. 5. On functionaries, the exercise of the statistic function is not only morally but legally obligatory: for the rendering of this service, the mass of benefit which, in whatever shape, pay included, stands attached to their respective offices, is their reward. On non-functionaries, morally only: factitious reward, none is provided for them, none is needed for them; natural, appropriate, and exactly proportionate reward, in proportion as his service is known, and the nature of it understood, each man will receive, in and by means of the esteem, produced by the contemplation of it.
Art. 6. Of the heads, to which imperfections, ascribed to the law, by amendments, may be referrible, examples are as follows:—
I. As to matter. Want of conduciveness to the general end. The arrangement, as supposed, not so conformable to the greatest happiness principle as it might be.
II. For examples of want of completeness as to matter, see any of the lists of exceptions in this Code, and suppose any one of those same exceptions omitted.
III. For examples of want of completeness as to form, in any one of the lists of examples, suppose this or that example not inserted.
IV. As to form. Want of clearness: to wit, in such or such a clause or assemblage of clauses; as to the effect, obscurity or ambiguity: as to the cause, that is to say the words,—redundancy, deficiency, inappositeness, or miscollocation.
V. As to matter or form, want of completeness: this or that case, as supposed, not being provided for: because, as supposed, not contemplated.
VI. In the Adjective Code in particular,—or say the Procedure Code; on the part of this or that arrangement, want of conduciveness to the general end: to wit, by reason of want of conduciveness to this or that one of the ends of justice, direct and collateral: the direct end, being the giving execution and effect to the correspondent portion of the Substantive Code; the collateral end, the keeping the practice clear of needless delay, vexation and expense—evils correspondent and opposite to so many specific collateral ends of justice.
Note, that in speaking of ends, instead of one, the number of direct ends may be stated as being two: in which case the opposite evils will be misdecision and non-decision: for by non-decision may be produced the effect of misdecision: to wit, in disfavour of the pursuer’s side.
Art. 7. When a supposed amendment, as above, is suggested, the two forms, in either of which, for the preservation of symmetry, it may be expressed, may be seen in Ch. vi. Legislature, Section 29, Members’ Motions: Of the non-preservation of symmetry, the consequences may be seen in Ch. xi. Section 2, Legislation Minister.
Art. 8. In support of his amendment, the proposer will do well to subjoin, under the following heads, concise indications of the reasons, by the consideration of which, he was induced to propose it. These will be—
I. Evil effects, regarded as flowing from the law as it stands: or,
II. Good effects expected to result from the proposed amendment, if adopted.
The more condensed and compact his reasons, the greater will be their chance of being attended to: by every attempt to move the passions it will be lessened.
Art. 9. On the tutelary influence of the Public-Opinion Tribunal, this Constitution relies, in a more especial manner, for the efficiency of the securities which it provides, for good conduct, on the part of the several functionaries, belonging to the Judiciary Department. See in the several Chapters the several Sections headed by the words Securities for apropriate aptitude.
Securities against Legislative, and Judiciary.
Art. 1. To every person, elector, inhabitant, or foreigner,—to every individual of the human species, belongs the right of exercising, in relation to the condition of every department of this government, and the conduct of every functionary thereto belonging, the statistic, executive, and melioration-suggestive functions above-mentioned.
Art. 2. So likewise the Censorial: how strong soever the terms, in which the approbation or disapprobation stands expressed. Vituperation, if indecorous, will receive its proportionate punishment at the hands of the Public-Opinion Tribunal: defamation, if mendacious or temeracious, at the hands of the Penal Code. Defamation there is none, without intimation given of some illegal or immoral act;—intimation individually, or at least specifically, determinate. If, being false, the intimation is temeracious only, and not mendacious, the official situation, of the party defamed, is a ground—not of aggravation, but of extenuation. The military functionary is paid for being shot at. The civil functionary is paid for being spoken and written at. The soldier, who will not face musquetry, is one sort of coward. The civilian, who will not endure obloquy, is another. Better he be defamed, though it be ever so unjustly, than that, by a breach of official duty, any sinister profit sought should be reaped. To him who has power, opulence, or reputation, self-defence is, in proportion to his power, opulence, or reputation, more easy than if he had none: defenders cannot be wanting to him, so long as he has patrons, colleagues, or dependents.
Art. 3. By prohibition, restriction or taxation, to throw obstruction in the way of production or diffusion of political tracts, especially newspapers and other periodical ones, would, on the part of the Legislature, be a breach of trust, a violation of its duty to the Constitutive; an act of insubordination, obstructing their constitutional superordinates in the exercise of their authority, by depriving them of the means of forming correct judgments: an act of partiality and oppression, withholding from one class of men, documents not withholden from another: withholding, from the many, benefits, not withholden from the more wealthy few: withholding instruction from those, by whom it is most needed. It would be an anti-constitutional act: as such, it would call for marks of disapprobation, at the hands of the members of the Supreme Constitutive; namely, as well in their character of Electors, as in their character of Members of the Public-Opinion Tribunal.
Art. 4. No such act of insubordination is committed, by punishment judicially inflicted, or demanded, for defamation, when effected or endeavoured at by falsehood, accompanied by criminal evil-consciousness, or culpable temerity of assertion, as to which see the Penal Code.
Art. 5. Every act, whereby, in the above or any other way, a man seeks to weaken the effective power of the Public-Opinion Tribunal, or by falsehood, or (what comes to the same thing) by suppression of truth, to misdirect it, is evidence, of hostility on his part to the greatest happiness of the greatest number: evidence of the worst intentions, generated by the worst motives: evidence which, though but tacit and circumstantial, and though it be ever so unwilling, is not the less conclusive. Every act, whereby a man seeks to diminish the circulation of opinions opposite to those which he professes, is evidence of his consciousness of the rectitude of those which he is combating, and thereby of the insincerity, hypocrisy, tyrannicalness, and selfishness which have taken possession of his mind. Sincere or insincere, he may, without fear of injustice, be numbered among the enemies of the human species.
[* ]See p. 95, et seq.
[* ]Ratiocinative, or say Rationale.
[* ]See p. 41, et seq.