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CHAPTER XXIV. - 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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Fields of Service.
Art. 1. Co-extensive with the territory of the State, is the Justice Minister’s local field of service.
Art. 2. As to his logical field of service, see Section 2, Functions in general.
Functions in general.
Art. 1. As to the Judges, and the several other magisterial functionaries belonging to the Judiciary department, (as per Ch. xii., Section 3, Judiciary functionaries,) the Justice Minister exercises the locative function: from among what persons, see Ch. xii. Section 28, Locable who.
Art. 2. So, eventually, the suspensive: as per Ch. ix. Ministers collectively, Section 4, Functions in all, Art. 44.
Art. 3. So, eventually, the dislocative: as per Ch. ix., Section 4, Art. 44.
Art. 4. So, in certain cases, the translative, or say, transferential, as per Ch. ix., Section 4, Art. 44.
Art. 5. With relation to his own office, the Justice Minister exercises the self-suppletive function: that is to say, by the location of a Depute, as in the case of the Prime Minister, as per Ch. viii., Section 4, Self-suppletive function. Failing such location, the functions of the Justice Minister are exercised by the Legislation Minister; as to whom see Ch. xi. Ministers severally, Section 2, Legislation Minister.
Art. 6. As to the several things belonging to the Judiciary department, he exercises in chief the several functions procurative, custoditive, applicative, reparative, transformative, and eliminative; as to which see Ch. ix. Ministers collectively, Section 4, Functions in all, Arts. from 45 to 53. The functions procurative, reparative, and eliminative, he exercises in concert with the Finance Minister.
Art. 7. Of things belonging to this department, examples are the following:—
I. Things immoveable—Justice Chambers. II. Things moveable—the Stock thereto belonging. III. Things immoveable—Prisons. IV. Things moveable—the Stock thereto belonging. See Ch. xii. Judiciary collectively. Section 33, Judiciary Apparatus; Section 34, Justice Chambers; Section 35, Judiciary Habiliments; and also the Author’s work, intituled Panopticon (in vol. iv. of this Collection.)
Art. 8. As to the several other offices belonging to the Judiciary department, he exercises the Visitative function, as per Section 3, Visitative function.
Art. 9. So, as to Prisons, employed in the army service, or navy service, or both. See Ch. x. Defensive Force, Section 13, Military Judicatories: and Section 17, Ship-board Oppression obviated.
Art. 10. As to the business of his own office, he exercises, in chief, the Inspective, Statistic, and Recordative functions: as to which, see Ch. ix. Ministers collectively, Section 4, Functions in all, Arts. from 54 to 57. So, likewise, in the several Judicatories he causes to be exercised those same functions: enforcing, upon occasion, so far as regards this his department, the application of the Universal Registration system, as per Ch. viii. Prime Minister, Section 10, Registration System.
Art. 11. In relation to the exercise given, by the several Judges, Immediate and Appellate, to the Contested-interpretation-reporting, Eventually-emendative, and Preinterpretative functions, as per Ch. xii. Judiciary collectively, Sections 19, 20, 22, he exercises a superintending control: as to which see those several Sections.
Art. 12. So, in relation to the several above-mentioned subject matters, the melioration-suggestive function—the exercise of which, his paramount means of observation and information considered, is, in a more particular manner, expected at his hands.
Art. 13. So, likewise, in relation to the whole system of Judicial Procedure, and the practice of the several Judges, and other functionaries under it.
Art. 14. So, the conservative function, in relation to the state of the law considered in respect of form: that is to say in respect of the words by which the matters of it, or say the ideas meant to be conveyed by it, are designated and expressed; and the method, including the grouping, and the order, in which, in each group, those same words are arranged. As to the mode in which exercise is given by him to this same function,—it is by representation, made by him, to the Legislature, in case of any deterioration, which the introduction of a new law, howsoever apt in respect of matter, might, for want of symmetry with the existing mass, be productive of, in respect of form.
As to form considered with reference to law, see Nomography (vol. iii. p. 233.) This function he exercises in concert with the Legislation Minister, as to whom see Ch. xi. Ministers severally, Section 2, Legislation Minister.
Art. 15. For giving execution and effect to the exercise given by him to these his several effective functions, he exercises within the field of service confided to him, the several elementary functions belonging to the several Judicatories, Immediate and Appellate, as per Ch. xii. Judiciary collectively, Section 9.
Art. 1. As often as occasion calls and time permits, so far as possible in person, as to the rest by Depute, permanent or occasional, the Justice Minister will perform in the Immediate Judicatories Inspection visits.
Art. 2. Objects and businesses of such visits, these,—
1. Seeing that by those several Judicatories, in so far as in them lies, execution and effect is given to the several ordinances of the Legislature.
2. Preservation of mutual conformity and symmetry, as between each Judicatory and every other, in respect of the mode of giving execution and effect to the substantive branch of the law, through the adjective branch, that is to say, the system of Judicial procedure.
3. Taking cognizance of appropriate aptitude, on the part of the several functionaries, with a view to continuance, dislocation, suspension, or translation, as per Ch. ix. Ministers collectively, Section 4, Functions in all, Art. 44.
4. So, with a view to the promotion of them in their several situations, to the like in Appellate Judicatories.
5. Settling any such differences as may have place between a functionary in one line, and a functionary in another line; as per Ch. xii. Judiciary collectively, Section 3, Judiciary functionaries: for example, Judge, Government Advocate, Eleemosynary Advocate, and Registrar; and so, as to the several ministerial functionaries.
Art. 3. As to the time of visitation, diversifications it admits of, are these. It may be periodical, or occasional; if occasional, the occasions may be determined either by choice, or by chance.
1. Of its being periodical, the use is this:—To persons at large, to all to whom it may happen to have complaints to make, information to communicate, or meliorative arrangements to suggest, time will thus be given, and that in so far as may be, adequate, for arranging their respective affairs, in such sort as to minimize the inconvenience produced by attendance at the Justice Chamber.
2. In the case where the time, though not periodical and accordingly fixed, is determined by choice, the like convenience has place. Not, however, in so great a degree; for on the part of the several individuals in question, the degree of convenience will be diversified: depending on the quantity of time, between the moment at which the notification of the intended visit takes place, and the moment at which the termination of that same visit actually takes place.
Art. 4. Such is naturally the good effect of choice. Now for the bad effects:—
1. In so far as the time is placed under the command of choice, a danger, which has place, is,—lest, through the influence of some particular and sinister interest, whether in the shape of self-regard, sympathy, or antipathy, in the mind of the thus visiting functionary, wrong should be done; wrong, either to the public service or to this or that individual interest.
2. Whether any such sinister interest having had place, the correspondent bad effect has or has not been produced,—a suspicion to that effect to an extent more or less considerable may have place in the public mind.
Art. 5. Remains the case where the time, not being fixed but occasional, is determined by chance.
Of this mode of determination the good effect and use, is as follows:—The time not being foreseeable, the consequence is,—that at every moment of time, as much as at any one such moment, it concerns all those whose conduct is to be inspected, to maintain that conduct in a state in which it will abide this trial.
Art. 6. The practical conclusion seems to be as follows:—
1. Periodical visitation at fixed times—that is to say, once a-year; or in the course of the year, at two, three, or any greater number of times,—equally, or not very unequally, distant from one another, according to circumstances.
2. For particular reasons on each occasion assigned,—the day of the Justice Minister’s occasional visitation determined in each instance by choice; preceded by notice, having for its object the attendance of all persons desirous of attending.
3. In addition to these announced and foreknown days, days of visitation determined by chance: that is to say, by lot:—the lots so drawn, as to minimize the interval between the moment at which the lot is drawn, and the moment at which the visit of the Justice Minister is made known to the functionary, of whose conduct he comes to take cognizance. To this purpose,—in so far as it can be effected, without losing time by travelling backwards and forwards, the lots may be drawn, not only at the moment next before that of his setting out for the Justice Chamber, first visited by him, but then and there also for the determination of the Justice Chamber next to be visited: and so on.
Art. 7. To the intent that, in the breasts of the several functionaries, the expectation of being eventually subjected to such inspection may be kept effectually alive,—the Legislature will perhaps see sufficient reason for appointing a certain number of judicatories, to be in the course of each year subjected to these same inspection visits, leaving the individual judicatories to be determined by lot.
Art. 8. So, likewise, as to the offices of the several Local Headmen and their respective Registrars: as per Ch. xxv. and xxvi. To these offices apply the several preceding Articles of this present Section.
Art. 9. For the mode of taking by lot, the decision of chance,—see Ch. ix. Ministers collectively, Section 16, Locable who, Supplement.
Art. 10. As to the Appellate Judicatories,—whether they shall be subject to these visitations of the Justice Minister, will depend upon their local situation: if it be in the metropolis, yes: if elsewhere than in the metropolis, no.
Art. 1. In the exercise of this function, the Justice Minister takes cognizance of petitions, complaining of oppression or denial of justice, in an Appellate Judicatory: of the like complaints in relation to an Immediate Judicatory, cognizance, in the first instance, belongs to Appellate Judicatories.
Art. 2. In consequence of any such complaint, or spontaneously, he may deliver to any Judge, or other officer belonging to his department, in public, a sentence or order of dislocation; or a recommendation or permission to resign: in case of such recommendation or permission, he grants a public hearing, if, for clearance of character, required: if, in due time resignation fails to have place, order of dislocation follows.
Art. 3. For any such sentence or order, the most apt cause will generally be—deficiency in respect of appropriate moral aptitude; for any such recommendation or permission, deficiency in respect of appropriate intellectual or active aptitude.
Art. 4. For ulterior exercise of this same judicative function by the Justice Minister, see Section 5, Dispunitive function, and Section 6, Jurisdiction-adjustive function.
Art. 1. By the Justice Minister’s dispunitive function understand—the function to which exercise is given by the remission of punishment, in a case, in which it stands annexed by the law, to the commission of an offence, in this or that one of the several shapes, marked out in the Penal Code: as to which see the Table of Offences, as attached to the Penal Code.
Art. 2. Principal and all-comprehensive subjects of consideration, on this occasion, are these:—
I. Quantity of the effect producible, in each instance, by the remission. Modifications of which, on this ground, it is susceptible, are these, namely:
1. Remission of the whole of the punishment appointed by law; say total remission.
2. Remission of a part thereof, more or less considerable; say partial remission.
3. Substitution of a less afflictive to the more afflictive punishment, appointed by the law.
4. Suspension made of the application of the punishment, (whether total, partial, or substitutive,) for and during a time, more or less considerable.
By less afflictive, understand that which—in the conception of the party about to suffer, is, according to his declaration, less afflictive.
Art. 3. II. Relative time, at which the remission, whether total, partial, substitutive, or suspensive, is made to take place, or say to take effect.
Distinctions, which on this ground may require, or be thought to require, to be established, are these:
1. Time of the remission, anterior to that of the commission of the offence: say, time antepeccational.
2. Time of the remission, posterior to that of the commission of the offence, but anterior to that of the commencement of judicial pursuit, on the ground of it: say, time ante-prosecutional.
3. Time of the remission, posterior to that of the commencement of pursuit, but anterior to that of conviction: say, time ante-convictional.
4. Time of the remission, posterior to that of the conviction, but anterior to that of the sentence, whereby the quality and quantity of the punishment has been pronounced: say, time ante-sentential.
5. Time of the remission, posterior to that of the pronunciation of the sentence, but anterior to the commencement of the execution thereof: say, time ante-executional.
6. Time of the remission, posterior to the time at which, in consequence of the sentence, the actual application of the punishment has taken its commencement: say, time post-initial, or terminative.
Art. 4. III. Grounds, on which it may be thought that at one, or more, or all, of the several relative times above-mentioned, remission, total, partial, substitutive, or suspensive, may, with propriety, be made, are these which follow:—
1. Of exculpative evidence, discovery made at a time subsequent to conviction.
2. Service expected to be rendered by the convicted delinquent, or say convict, by information having for its effect the prevention of otherwise future acts of delinquency.
3. Service expected to be rendered by the convict, by the prevention, frustration, or timely repression of acts of hostility, or diminution of their maleficent effects: of hostility, namely, at the hands of a foreign power.
4. Service expected to be rendered by the convict, by the prevention of physical calamity, or the diminution of its maleficent effects.
5. Service expected to be rendered by the convict, by the communication of some useful invention or discovery.
6. Service actually rendered by the convict in any one of the above-mentioned four shapes.
7. Regard for the amity of foreign powers, one or more.
8. Regard for the amity of the people of the State to which the individual in question belongs.
9. Multitude of the individuals, who, having been co-operating with the delinquent in question, are liable to be punished for the same cause: say, multitude of co-delinquents.
10. Service rendered, or about to be rendered, by the delinquent in question, by information contributory to the conviction of some co-delinquent or co-delinquents.
Art. 5. As to remission at the hands of the Justice Minister, it will be subject to the restrictions, cautions, and instructions in relation to the various grounds, respectively hereinafter particularized:—
I. Ground the first.—Of exculpative evidence, discovery made at a time subsequent to the conviction of the delinquent in question.
Care may, in this case, require to be taken, lest the convict, being in time apprized of the existence of the evidence in question, should purposely postpone, till after conviction, the elicitation of it: for example, for the purpose of averting the elicitation of some counter-evidence, the elicitation of which may, by the expected death or expatriation of the evidence-holder, be accordingly averted.
Art. 6. II. Ground the second.—Service, expected to be rendered by the convict, by information having for its effect the prevention of otherwise future acts of delinquency.
Adequate assurance will, on this occasion, require to be obtained, not only that by means of the information thus afforded by the convict, the offences in question will have been prevented: but also, that without it, they would not have been prevented: and, accordingly, that the delinquent not having himself been able to communicate the information, was not, by some other person who had become possessed of it, made the channel of communication for the purpose of his obtaining the remission of the punishment.
Art. 7. III. Ground the third.—Service expected to be rendered by the convict, by the prevention, frustration, or repression of acts of hostility, or the diminution of the maleficent effects of hostility at the hands of a foreign power.
In this case also, in like manner, will care require to be taken, to prevent the impunity-conferring transference of merit, as per No. II.
Art. 8. IV. Ground the fourth.—Service expected to be rendered by the convict, by the prevention, or the diminution of the effects, of some physical calamity.
Of the several calamities to which human nature stands exposed, see a list in Ch. xi. Ministers severally, Section 5, Preventive Service Minister, and Section 10, Health Minister.
Care will, in this case also, require to be taken, in like manner, to prevent the impunity-conferring transference of merit, as per No. II.
Art. 9. V. Ground the fifth.—Service expected to be rendered by the convict, by the communication of some useful invention or discovery.
Care will, in this case also, require to be taken, in like manner, to prevent the impunity-conferring transference of merit, as per No. II.
So, likewise, that the good reasonably to be expected, from the invention or discovery, be of sufficient magnitude to overbalance whatsoever evil may reasonably be apprehended from the impunity thus conferred.
And in this view the Public-Opinion Tribunal will have its eye on the line of conduct on this occasion pursued by the Justice Minister.
Enactive. Instructional. Ratiocinative.
Art. 10. VI. Ground the sixth.—Service actually rendered by the convict in any one of the four shapes above specified.
Care will, in this case also, require to be taken in like manner, that there be a reasonable ground for the persuasion, that the good produced by the service in question was, or was about to be, of sufficient magnitude to overbalance whatsoever evil may reasonably be apprehended from the impunity thus conferred.
On the other hand, it will be borne in mind, that a reward bestowed for a past service operates as a reward offered for all similar future services; and that thereby service may in countless shapes be purchased.
On the other hand, again, if a man has in contemplation a favourite crime, from the commission of which he looks for inordinate gratification, the contemplation of reward, in this shape, may lead him to add to the service in question the maleficent act so contemplated.
Enactive. Instructional. Ratiocinative.
Art. 11. Grounds on which, to whatsoever other functionary it may, it will not belong to the Justice Minister to exercise, at any one of the above-mentioned points of relative time, as per Art. 3, the dispunitive function in every one of the above modes, as per Art. 2. They are these which follow:—
I. Ground the first.—Regard for the amity of a foreign power or foreign powers. It may be that, under the particular circumstances of the case, from ill-will, with or without acts of hostility, on the part of a foreign power, evil would result, of such magnitude, as to overbalance whatsoever evil may reasonably be apprehended from the impunity thus conferred.
But, in the situation of the Justice Minister, for the forming a correct estimate of a service in this shape, means will not, in general, be possessed so adequate as those which are accessible to a functionary occupying the situation of Prime Minister: to him, therefore, in this case, the function is committed.
Enactive. Instructional. Ratiocinative.
Art. 12. II. Ground the second.—Regard for the amity of the people of the state to which the individual in question belongs.
In no place, at no time, under no form of government,—not even under the form congenial to this Code,—can the people at large be reasonably regarded as likely to be so nearly upon a level with the Members of their Legislature, in the scale of appropriate intellectual aptitude, but that in consequence of some delusion, a portion, more or less considerable, of the community, may not be to such a degree averse to the execution of this or that penal law, or attached to the particular delinquent, that whatsoever evil may reasonably be apprehended from the remission of the punishment, on the individual occasion in question, may be overbalanced by the joy in the event of the remission, and the chagrin in the event of the execution. But, in this case, for the same reason as in the case No. I., the exercise of the dispunitive function belongs—not to the Justice Minister, but to the Prime Minister.
Enactive. Instructional. Ratiocinative.
Art. 13. III. Ground the third.—Multitude of co-delinquents. In this case, for the same reason as in the case No. I., the exercise of the dispunitive power belongs—not to the Justice Minister, but to the Prime Minister.
Various offences there are in which, with or without mutual consent, it may happen to individuals, in numbers altogether unlimited, to embark: in particular, such as are distinguished by the appellation of political, consisting, as they do, in acts of hostility to the ruling powers. In the course of a civil war, it may happen to the minority, in any proportion, to have the upper hand, and, by that means, to be in possession of all the powers of government. In such a state of things, the whole number of the members of the community, with the exception of those members of the minority, may be in the condition of co-delinquents: and, to avoid giving exercise to the dispunitive power—and that at a time antecedent to judicial pursuit, or say prosecution—would be not merely inexpedient, but physically impossible.
Enactive. Instructional. Ratiocinative.
Art. 14. IV. Ground the fourth.—Service rendered or about to be rendered by the delinquent in question, by information contributory to the conviction of some co-delinquent or co-delinquents.
In this case, to give exercise to this power of remission will belong—not to the Justice Minister, but to a Government Advocate: that is to say, to the Government Advocate of the Judicatory, by which cognizance was originally taken of the offence. By the Justice Minister it will not be to be exercised, for the same reason for which the power of a Judge Immediate will not, except in cases of rare necessity, be exercised. By the supposition, by the Judge Immediate it will not be to be exercised, because the exercise of it has for its effect, the preserving the delinquent from being, in the character of a delinquent, brought before any Judge Immediate.
On the three points following, adequate assurance will on this occasion require to be entertained.
1. That with the information, for which so great a price will have been paid, the whole of the evidence necessary to warrant the conviction of the whole number of the defendants in question, whatsoever it be, will be obtained.
2. That without it, no sufficient evidence against any one.
3. That with it, will be obtained the evidence applying to as many as may be, of the whole number of co-delinquents, of which it is desirable to obtain the conviction.
Proportioned to the magnitude of the evil of the offence, is the magnitude of the price thus offered, for the hope of contributing to the prevention of it in future. To confer impunity on one delinquent with no other effect, and for no other purpose, than the faculty of applying punishment to another, is, if by supposition that same faculty can be obtained gratis, a bargain palpably absurd.
Art. 15. Mind now the practical consequence. Where such is the practice, the existence of it constitutes a sort of apparent and virtual law, which makes itself known to the fraternity of criminals of all sorts. It thus operates as a premium, as an encouragement, to all crimes to which it applies itself. A man says to himself—“I will get men to join with me in the commission of this crime: I will reap myself all the benefit of it, and by information given to the judicial authority, I will impose upon them the whole burthen of the punishment.”
What, if to the encouragement in this shape, be added, under the express name of a reward, a pecuniary donation: the payment of it, having for a condition, the conviction of the co-delinquent in question? Here, then, is encouragement offered by authority,—offered according to law,—for two atrocious and distinct, though so intimately connected, crimes: in the first place, the principal crime in question; in the next place, the utterance of mendacious evidence, whatsoever it may be, that may have presented itself as necessary, or conducive to the obtainment of the reward.
Under English law, thanks to the sinister industry of the Judges, the wretched succedaneum to law, by which so large a portion of the field of legislation is covered, being of their formation, this practice is still in vigour. To the defendant himself, an interrogatory, the effect of which might, by means of his confessorial evidence, his evasions, or his silence, be to afford demonstration of his guilt, is not suffered to be put. Why? because, forsooth, the talking of any one of those crimes would not be pleasant: a reason which, if admitted to give determination to the conduct of the legislator, would have the effect of giving impunity to every malefactor, and complete license to every crime. Pleasing to him? No, assuredly it will not be, if he is guilty: but not less assuredly it would be, if he is innocent.
Art. 16. Three several modes there are in which, in an indirect and unobserved way, impunity may, in practice, be given to acts marked out for punishment by the direct declaration of the law. In two of these instances, the authority by which the effect is produced is the legislative: in the third, it is the judiciary. In the first two, the relative time at which the remission applies itself, is anterior to prosecution: the remission is, in a word, ante-prosecutional: in the third case, it is post-prosecutional, and commonly post-convictional. The effect, in some cases, is completely remissive; in others, no other than suspensive.
Art. 17. The impunity in one of these three cases has commonly for its cause, want of perspicacity, and thence, presence of inadvertency in the mind of the legislator: he sees not that, to an extent more or less considerable, the effect produced by his enactment will be—not the effect declared by him to be intended to be produced, but the reverse of it. Such, for example, and to a prodigious extent, is the result, in the case in which, to the act, which is taken for the subject matter of prohibition, stands attached punishment in no other shape than that of a pecuniary penalty. Where, to an extent more or less considerable, a profit from the offence rises to an amount exceeding the loss by the payment of the penalty,—to the amount of the difference between the loss and the profit, the effect of the law is, in this case, not merely that of a license, but that of a premium, or say, a bounty on the commission of the offence. As to this, see the work intituled Nomography, Ch. ix. (in vol. iii. p. 280, of this collection.)
Art. 18. In the second of these cases, the result has commonly for its cause, the perspicacity, foresight, and prudence on the part of the legislator. This state of things is exemplified in the case, where, having by the Substantive branch of his Code, interdicted the act in question, and attached a punishment to the commission of it, by the Adjective branch, or say the Procedure Code, he excludes from the right or prosecuting for it, every person other than a Government functionary, acting under the direction of the Prime Minister under a Democracy, such as the present one: a functionary—namely, the Government Advocate of the Immediate Judgeshire or the Government Advocate-General: under a Monarchy, the functionary acts under the direction of the monarch: in which state of things a virtual dispunitive function is reposed in the hands of the Monarch in one case, of the Prime Minister in the other case.
Art. 19. In this case, on the subject of acts of any particular description, supposing the legislator to act under the guidance of the greatest-happiness principle, suppose it should be his opinion that, in regard to the sort of acts in question, from the attaching punishment to them, the happiness of the community would experience diminution: at the same time that towards persons by whom those acts are practised, or supposed to be practised, ill-will, or say antipathy in the breasts of a portion more or less considerable of the community has place, in such sort, as that it is their desire to see punishment of the sort and to the amount in question, inflicted on persons by whom those acts are, or are supposed to be practised; and that such is the intensity of this desire, and such the extent to which it has place, that were it contravened, the evil, consisting of their disaffection towards the Government, would be greater than the evil produced by the attaching to the acts in question, punishment in a sort and quantity, by which the mass of ill-will in question would be saturated.
Art. 20. On this, or some other (no matter what) consideration, by a Legislature of former times, to acts of the description in question, punishment has been attached. By the actual application of punishment to those same acts, at the institution of the present Pannomion, in the opinion of the Legislature (suppose) the happiness of the community would experience, not increase, but diminution. At the same time it apprehends, that after the habit, which the community has been in, of seeing punishment attached to the acts in question, were no punishment to be attached to them by the new law, the consequence would be that from the observation of the change, a portion more or less considerable of the people, would not only experience dissatisfaction, but dissatisfaction to such an amount, that the evil composed of it, would be greater than the evil composed of the application made of the punishment in question to the delinquents in question. In this case, what course shall be taken? A course, which in a case of this sort has been taken, is, such as that indicated in Art. 18. In this way, the dissatisfaction in question is left unproduced,—the tranquillity of the public mind is undisturbed.
Art. 21. Bad opinions—acts consisting in the giving expression and publicity to bad opinions. By legislators of most, if not of all nations, to acts of this description, punishment has been attached. To inquire what the relation is, which has place between legislation to this effect, and the happiness of the community, belongs not to the present purpose. What does belong to the present purpose is—the observation, that supposing this policy advisable, here is a case in which the purpose requires, that, with reference to acts of the description in question, the power of remission, with regard to whatsoever punishment stands attached to them, should in this indirect and silent way, be committed to the Government Advocate, and through him to the Prime Minister.
Art. 22. In the third of these cases, the remission of the punishment, and the virtual though indirect exercise of legislative authority, is exercised by the Judiciary.
In this way, the evil capable of being produced, and which in certain countries, in England more particularly, actually continues to be produced by it, is such as cannot but excite the astonishment of succeeding generations. The simple word void, or its synonym, the compound word null-and-void, is the instrument by which the effect is produced—the impunity conferred. For the pronunciation of this word, some pretext is always made, but no pretext is too frivolous to be employed and serve. In the original writing, or copying of a written instrument, for example, in one of the words, a letter which ought to have been inserted, is not inserted; or a letter which ought not to have been inserted, is inserted. On this ground, without any other—without any the least regard to innocence and guilt, be the crime ever so atrocious, the criminal, after the most undoubted proof of his guilt, receives in this way, impunity from the hands of the Judge, and is turned by him, loose into society, to go on, and add crime to crime.
Art. 23. As often as, in this way, remission of punishment takes place, legislative power is usurped: and the usurpers are—the draughtsman, on whom the instrument depends for its aptitude, and the Judge who on so frivolous a pretext, sets himself above the Legislature, overrules its declared will, and frustrates its design.
Art. 24. Such is the efficiency of habit and custom, in expunging all sense of shame, that the practice of conferring impunity on known criminals, and thus violating the authority of the Legislature, is on the part of all Judges (of the rank in question) an avowed practice: this being one of the modes in which decisions are pronounced on grounds foreign to the merits: a mode of proceeding which no such Judge ever scruples, or hesitates to speak of himself as practising.
Art. 25. A few years hence, when corruption has put on incorruption, and the eyes of the great body of the people have opened themselves, what will men think and say of the probity or the intelligence of the Judges by whom the practice could be persevered in,—of the legislators who could leave such Judges unpunished,—and of the people who could continue their submission to such legislators?
Enactive. Expositive. Instructional.
Art. 26. Of all the several cases in which, as above, the dispunitive function is intrusted to the Justice Minister, in no one will the remission be justified, otherwise than on the ground of an individual matter of fact, the existence of which has been made known by appropriate and adequate evidence, elicited in the same manner, as the evidence, on the ground of which convictions are pronounced.
Instructional. Expositive. Ratiocinative.
Art. 27. On no other supposition, than that thereby the aggregate of the happiness of all persons interested, will in that case be greater than in the opposite case, can the application of evil in the shape of punishment be justified: on no other ground than this, can the remission of punishment be justified: and if in the one case, the existence of the matter of fact, of which the justification for the exercise made of the power of punishment, ought to be established by appropriate and adequate evidence, suited to the nature of the case, so ought it in the other. In the one case, not more than the other, should the happiness of the person interested be dependent upon the arbitrary will and pleasure of any person, whose interest it may be, or may appear to him to be, to make sacrifice of it.
Art. 28. When, in consequence of such ex parte evidence as hath been delivered in to him, the Justice Minister determines to make complete inquiry into the truth of an alleged ground for the exercise of this his dispunitive function, he will either himself complete the elicitation of the evidence, or for the completion, issue his mandates to the Judge, or Judges Immediate, of one or more Judgeshires, (the Judgeshire in which the conviction took place, included,) according to the place or places, in which the Evidence-holder or Evidence-holders have his or their residence.
Art. 29. When it is not to the Justice Minister, but to the Prime Minister, that the exercise of this power is committed, the need of evidence is not less incontrovertible, than where it is to the Justice Minister, that this same trust is committed. But the evidence, assorted to the nature of the case, is different in the one case from what it is in the other. In the cases in which it is to the Justice Minister, that the ascertainment of the fact is committed, the appropriate evidence is not already in his possession, but is capable of being elicited, by interrogatories addressed to individuals, on that particular occasion, for that particular purpose: in the cases in which it is to the Prime Minister that the ascertainment of the fact is committed, all the facts which bear upon the case have already, in so far as they are capable of being made known, been made known to him accordingly, by evidence, such as it belongs to his situation to receive.
Art. 30. As to the relative time, generally speaking, in no other case than where conviction has already taken place, will application be made for the exercise of the dispunitive function by the Justice Minister. The alleged delinquent, does he expect to be declared Not guilty? Application for remission of the punishment would be a virtual confession of guiltiness, and correspondent loss of reputation would be the natural consequence. Does he expect to be pronounced Guilty? Still he may as well take his chance for acquittal, for example, by the death or expatriation of a necessary witness; and when the worst that can happen has happened, namely the pronunciation of the decree of conviction, it will then be time enough for application to be made for the remission.
Art. 31. The only case in which, to a man who expects to be otherwise convicted, it may happen to appear eligible to obtain remission, antecedently to conviction, is where, to preserve his reputation from the wound it would receive from the individual facts which would be divulgated by the inculpative evidence, if elicitated, he subjects himself in preference to the evil resulting from the general prevalence of the opinion of his having been guilty of an act of the sort in question, unaccompanied with any distinct conception of its particular circumstances.
Art. 32. Between the Penal Code, considered as occupied in the appointment of the several punishments for the several offences, and the part of the Constitutional Code thus occupied in declaring in what cases the application of such punishment shall be superseded, nothing of contradiction or inconsistency has place: for, the cases in which exercise may be given to the dispunitive function, constitute so many exceptions to the more general rules, by which those same punishments will respectively have been appointed.
Art. 33. At any time, if any circumstance, over and above those herein above enumerated, presents itself as fit to be constituted an efficient cause of remission, the Justice Minister will forthwith make report thereof to the Legislature: suspending execution until the will of the Legislature shall have been made known.
Art. 34. Pardon, to pardon, mercy, to show mercy—to no such words does any place belong in the vocabulary of this Code.
Art. 35. Power of pardon supposes tyranny in the same hand. Exercise of the power of pardon is occasional relaxation of the habitual tyranny, habitually exercised by the same hand. Where, without obligation to exercise it, power of punishment is exercised, tyranny is exercised. True it is—that, as on every occasion, it is better that tyranny be not exercised than exercised; so, on every occasion where no obligation to inflict punishment is imposed, it is better that it be not inflicted than that it be inflicted. But, on every occasion on which, on adequate grounds, the obligation of inflicting punishment is by law imposed, it is better that it be inflicted than that it be not inflicted; and the non-infliction of it by him by whom it should have been inflicted, so far from being a meritorious act, is, or should be made a punishable offence.
Art. 36. Such being the real effect and true character of this power, behold now the character ascribed to it by the unreflecting and deluded multitude: behold hence the support and encouragement given by this delusion to absolutism and tyranny: proportioned to the quantity of the praise bestowed upon this power is the evil produced by it.
Art. 37. The more oppressive the tyranny of which the law is thus made the instrument, the greater is the quantity of the good capable of being done by the non-exercise of it: and the greater the quantity of good capable of being thus done, the greater is the quantity of praise capable of being thus purchased. Thus it is that in a monarchy not only is praise elicited by the exercise of tyranny, but the more enormous the tyranny the greater is the quantity of praise thus undeservedly and insidiously obtained.
Art. 38. Look at the Roman emperors of old times! Look at the oriental despots of all times! Never were a Titus or a Trajan so much lauded as a Nero or a Domitian. Life and death being at his option, the monarch receives laud for every subject he abstains from putting to death. To the Almighty in heaven man is indebted for his creation; to the Almighty here on earth for his preservation.
Art. 39. Thus, combined with cruelty, with insincerity, with artifice, and with fraud, no wonder if to long-robed sycophants the power of pardon should be the subject of such ecstatic eulogy: by one class held up to admiration by some such appellative as the most valuable jewel of the Crown: by another, even to adoration, as being an attribute communicated by the one God to his express image and representative here on earth. For, true it is that, by whomsoever exercised,—in him it supposes the existence of tyranny, and of that same tyranny, he is in this respect the most valuable, as being not merely the least odious but even the beloved instrument.
Art. 40. By pretences thus false, is praise thus filched from the deluded people by the sceptred hypocrite.
Art. 41. Popularity gained by tyranny? What a paradox! Yet, where is the monarchy in which that paradox has not been endeavoured to be verified, and the endeavour crowned with a deplorably extensive success?
Art. 42. To pardon is to be an habitual tyrant: to show mercy is to have exercised tyranny.
Scarcely, if at all, less odious should the words pardon and mercy be than the word tyranny itself. Tyranny is itself without a mask: pardon and mercy are tyranny under a mask.
Instructional. Ratiocinative. Exemplificational.
Art. 43. Conceive a state of things in which the punishment, being death punishment, the numbers of the persons convicted and sentenced are hundreds, and the numbers executed are units. Of this state of things, what can have been the cause or causes? Answer—Causes, these which follow:—
1. The greater the number of those to whom this part of the punishment is remitted, the greater the number of those over whom an arbitrary power of life and death is exercised: exercised by the unknown functionaries, by whom, with or without just cause, this vast power is exercised; exercised in secret and without any the slightest responsibility or apprehension of it.
2. The gratification reaped by the pride of these same individuals—the pride of repealing, pro tanto, the enactments of the legislature, and thus exercising a power over the so-styled supreme power.
3. To absolute rulers, and their adherents, the advantage of impressing on the imaginations of the people, the idea of a sort of Godhead upon earth, as residing in the person of the man, woman, child, or madman, whichsoever it might happen to him or her to be.
4. It operates—this idea—in confirmation of the notion, that it is to the bounty of a human creature, thus situated, that every other member of the community stands indebted, for everything valuable that he or she is in possession of: and that as to him or her, when so pleased, it belongs to give, so to him or her, when so pleased, it belongs to take away.
5. In every charter received from a monarch, and referred to as a source of right, a proposition to this effect is implicitly contained: royal bounty in this shape is assumed to be the only security for good government, which the people ought to have: were it not for this concession, he or she would have had, and would continue to have, the right of doing with them whatsoever he or she pleased; and would have been in the right, had he or she done so.
6. In regard to monarchy in general, and limited monarchy in particular, a vague conception which has place in the minds of all its adherents, is, that being thus rotten, the props which, by deception and delusion in all imaginable shapes, are supplied to it, cannot be too strong or too abundant.
7. The Judges on whom, in so considerable a degree, the lot of the delinquent in question, in respect of the difference between life and death depends, are in their minds divided as to this matter: to some the supposed additional security, by putting out of the way so many men, by whose existence their property, and by possibility their persons, and even their lives, appear to them to be kept in jeopardy, presents itself as the most valuable benefit: to some, the exercise of arbitrary power in saving the lives of delinquents as above, presents itself as most desirable: in this exercise of a power above that of the legislature, the last behold the very thing they wish for: the others put up with the state of things in question, as well as they can; not being able to obtain anything more congenial to their taste.
8. The Judges, having reduced the value of punishment in the shape or say dimension of certainty, or say probability,—those among them, who are partisans of death punishment, feel what appears to them, the need of increase to it, in the shape or dimension of intensity.
9. Death being regarded as the natural and original punishment, due to all such offences as are regarded as criminal, punishments other than death punishment, have, when considered as applied to offences of this description, come to receive the name of secondary punishments.
10. To prevent the institution and application of those secondary punishments has from the first been the endeavour of the English Judges of the highest grade—styled the West-minster Hall Judges: Judge Blackstone being the only one who joined in the promotion of it: Blackstone, with whom, together with Howard and Eden, the Penitentiary system, according to the first conception of it, originated.
11. When they failed in this, their next endeavour was, to keep or make these secondary punishments as expensive as possible: and in this, all who joined in it, were but too effectually seconded by a secret intrigue, set on foot by George the Third.
12. A plan had been presented to, and eagerly, not to say rapturously, taken up by, the ministers of that king—by Pitt the second, and by Lord Mansfield the first—a plan by which (not to speak of collateral advantages, moral, and economical, such as conception had never till then reached to) the expense of the maintenance and employment of prisoners would have been reduced from the first to next to nothing.
13. George the Third having conceived a secret pique against the proposer, by whom the plan was to have been carried into execution, kept the business in a state of delay, by secret management, from the year 1794, to the year 1811, this delay having been preceded by two years and more of delay, between March 1792, the time of acceptance, and July 1794, the time of passing the act of parliament, his assent to which had, by means unknown, been obtained by those same ministers for that purpose.
14. At length arrived the year 1811, when the time was thought to be arrived for putting an end to this economical scheme altogether: benevolent and influential men, in considerable numbers, still prossing for the penitentiary plan, a sort of composition was entered into with them; by the Secretary of State for the Home Department, Lord Viscount Sidmouth, a Committee of the House of Commons was got up for form’s sake: the act of 1794 was formally and virtually repealed, and the still existing plan substituted.
15. Of this plan, the expense of the mere construction of the building has been computed at £1000 per prisoner: to what a degree the expense of secondary punishment in this form, upon an all-comprehensive scale was unpopularized, and represented as impracticable, may be imagined.*
Art. 1. In the exercise of this function, in case of dispute or doubt, as to which of two or more judicial functionaries, belongs the exercise of this or that power, or function, the Justice Minister, in subordination to the Legislature, issues a decree, opinative and imperative, declaring by whom, if at all, and in what manner, the power, or say function, in question, ought to have been exercised.
Art. 2. This power he exercises, whether the functionaries in question, as above, belong to the same Judicatory, or to different Judicatories.
Art. 3. Of such his decision, the subject matter may be, not only that which, under the existing law, in his opinion, had place, but also what, in such his opinion, ought in future to have place: in a word, the function on this occasion, exercised by him, may be—and in case of need, is expected to be,—not only the interpretative, (as to which, see Ch. xii. Section 22, Judges’, preinterpretative function,) but also, the eventually-emendative, (as to which, see Ch. xii. Section 20,) proceeding, mutatis mutandis, in manner as therein directed.
Art. 4. In so far as, if the order of the one Judge is executed, the execution of an order of the other Judge is thereby impossibilized, the prevalence generally belongs to the order to which execution has begun to be given, before it has begun to be given to the other.
Art. 5. Of the incompatibility thus brought to view, examples are as follows:—
1. By an accersitive mandate of one Judge, the attendance of a certain person at a certain point of time at his Judicatory is required. By another Judge, he being ignorant of such order, the attendance of that same person at that same point of time, at his Judicatory, is by an appropriate mandate required.
2. By a prehension mandate of one Judge, for the purpose of securing the means of eventual execution to a demand on the ground of debt, property situated within the territory of another Judge is required to be prehended and kept in custody: by a like order of some other Judge, for the like purpose, on occasion of a similar demand, by another demandant, that same property is required to be so dealt with, at the same point of time, for the benefit of such other demandant.
Term of Service.
Art. 1. In the case of a Justice Minister, after the expiration of the preparation period, as per Section 10, Locable who, the term of service is the term of his life: subject only to causes of dislocatedness, as per Section 12, Dislocable how.
Art. 2. During the preparation period, exceptions excepted, of no Justice Minister will the term of service be more than one solar year. For the reason, see Section 10, Locable who.
Art. 3. Exception will be, if before the ordinary election, a vacancy have place: in that case, the person elected for the remainder of the year, will continue in office during the then next year.
Enactive. Instructional. Ratiocinative.
Art. 1. The Justice Minister’s pay is [NA] per day: the same as that of every Sub-Minister. It is paid to him and him only: it is paid to him at his official residence. Of power, patronage, and dignity, is the most valuable part of his remuneration composed: dignity, natural, inseparable from, and proportionable to, appropriate aptitude.
Art. 2. Attached to his Justice Chamber, is his official residence, kept furnished by the care of the Finance Minister at the public expense.
Art. 3. To his regular pay, is added indemnification-money for the expense of Inspection Visits, as per Section 3, Visitative function, at the rate of [NA] per mile, actually travelled: with [NA] per day and night, for diet and lodging, while out. At his official residence, immediately on his return from each visitation, the amount will be paid to him by or from the Finance Minister.
Art. 1. Either at his official residence, or, as per Section 3; on some Inspection Visit, he stands bound to attendance on the same times as a Judge Immediate, as per Ch. xii. Section 25, Attendance, night duty excepted.
Art. 2. By an appropriate Registrar, whose office is attached to his, as of his several official acts, so of his attendances, is an account kept. It is kept by an appropriate Service Calendar, upon the plan of those kept in the several Judicatories, Appellate as well as Immediate; as per Ch. xii. Section 25.
Art. 1. After the expiration of the relative preparation period,—in other words, from and after the commencement of the relative consummation period, as to which two periods see Ch. xii. Judiciary collectively, Section 28, Locable who, and Ch. ix. Ministers collectively, Section 16, Locable who, no person will be locable in the situation of Justice Minister, who has not, after serving [two] service years in that of Immediate Judge Principal, served [two] service years in that of Appellate Judge Principal.
Art. 2. During the preparation period, no person who has not, after serving one service year as Judge Immediate Principal, served one service year as Judge Appellate Principal, will be locable, so soon as any apt person exists who has so served.
Art. 3. Until such presumption of appropriate aptitude, as is afforded by service, as per Art. 1, has come into existence,—the Legislature will make its election out of all such persons, to whom, in such a state of things, it has happened to have afforded such presumptive evidence of appropriate aptitude, as the nature of the case admits of.
Art. 4. During the preparation period, of no Justice Minister will the term of service be for solar years, more than one, nor will any person, who has served during one year, be eligible on any other year, of that period.
Art. 5. Why, during the preparation period, dislocate the Justice Minister without proof, or so much as imputation of blame-worthy conduct, after he has served no more than a single year?
1. To the end that, when the choice comes to be made of a Justice Minister whose term of service is for life, those to whom it belongs to choose may have two persons out of whom to choose: two persons, of each of whom experience in equal quantity has been had.
2. A consideration by which this experience is rendered the more needful is, that at the commencement, and throughout the whole course of the preparation period, out of no persons will the choice have to be made other than such as, in the profession of Advocate, had been inured to the indiscriminate defence of right and wrong, by the indiscriminate utterance of truth and falsehood.
Art. 1. By the Legislature, as is the Prime Minister, so is the Justice Minister located: by the Legislature, to whose will it belongs to the Justice Minister to provide in chief, for giving execution and effect in contested, as to the Prime Minister in uncontested cases.
Art. 2. Until Judicatories Immediate have for [one year] been in activity, no restrictions in the choice of the Legislature have place in this case, other than those which have place in the case of the Prime Minister.
Art. 3. Question. Why place the power of locating the Justice Minister not in the hands of the Executive Chief, by whom the other Ministers are located, but in the hands of the Legislature?
I. Why in the hands of the Legislature?
1. The use of the office of Justice Minister is to give execution and effect, in the surest manner, to the ordinances, which are the expressions of the will of the Legislature: to give execution and effect to it, namely, in the case in which, from whatever cause, instead of obsequiousness, it experiences contestation.
2. Supposing the purport of that will ascertained, obsequiousness could not be too prompt, too unreserved, or too universal.
3. Were the time of the Legislature sufficient for the despatch of this business, in addition to their own, by them, this function ought, for the above reason, to be exercised. But, by want of time, they are debarred from the exercise of this additional function, as, by want of time, the members of the Constitutive are debarred from the exercise of the Legislative, and the members of the Legislature from exercising that of the Executive Chief.
Art. 4. II. Why not in the hands of the Constitutive?
1. On the part of the Constitutive, want of time: namely, want of time for the exercise of this function, in addition to that paramount function from which their authority takes its denomination, namely, in its application to the authority of the Supreme Legislative, as also, as will be seen in its proper place, in its application to the Local Legislatures—the Sublegislatures.
2. Note here a distinction. Not in the want of time for the bare exercise of this function, does the efficient cause of inaptitude consist in this instance: only in the want of time for the acquiring the appropriate knowledge—the appropriate materials for apt judgment: in a word, for acquiring adequate intellectual aptitude.
3. On the part of the people at large, by the here proposed function of the Justice Minister, notwithstanding its importance, no attention will be attracted equal in intensity and extent to that which will of course be attracted by the functions of members of the Supreme Legislature: no such ample means of judging will, therefore, in this case, be put into the hands of the people, by the discussion carried on in the Public-Opinion Tribunal by the leading Members.
4. The object or end immediately in view being the giving execution and effect, on each occasion, to the will, whatever be the object, of the Legislature itself, the degree of interest with which the Legislature will see to the execution of its own will, will naturally be greater than any interest with which the members of the constitutive would see to the execution of a will, in the formation of which they had not any of them any immediate share.
5. As in the instance of every other head functionary, so in this, it is essential that the power of dislocation should be in the hands of the constitutive. But it is moreover essential that, in this case, the power of location should not be in the same hands as is the power of dislocation. Why it should not be so in the case of the situation of Justice Minister, by whom it is proposed that the several Judges be located, will appear from the reasons which apply to the situation of the Judges themselves.
Art. 5. III. Why not in the hands of the Executive Chief?
1. For a reason similar to the second of the reasons applying as above to the situation of the constitutive. Not with any such intensity can the attention of the Executive Chief—a person whose will is not the will to which it appertains to the functionary in question to give execution and effect—be expected to apply to the choice of the person by whom such execution and effect is to be given to the will of the Legislature, as that with which the Legislature itself may naturally be expected to apply itself to that same subject.
2. So great is the aggregate quantity of power proposed to be placed in the hands of the Executive Chief, by that which is proposed to be given to him in relation to the several other departments of the Executive, that unless some special and preponderant reasons were afforded for the attaching to the office this power,—considered in itself, the mere consideration of the danger from excess of power in the same hands, would suffice to indicate, in preference, hands any other than those of the Executive Chief.
3. In pursuit of a conjunct sinister interest, possessed by them in common, the two functionaries—the Executive Chief and his supposed nominee, the Justice Minister—might concur in the commission of depredation or oppression in other shapes, to the prejudice of the people, in an immediate way, or in an unimmediate way, by opposition and obstruction, instead of obsequiousness, to the declared will of the immediate creatures of the constitutive body—the Legislature.
Art. 6. Question. Why not render the Justice Minister dislocable by the Executive Chief, as the several other Ministers are?
1. Because, to the effectual performance of the functions belonging to the Justice Minister, no such promptitude and exactness of obedience, and complete mutuality of adjustment, is necessary, as in the case of the greater part of the whole number of the departments belonging to these other Ministers: namely, the Army Minister, the Navy Minister, the Preventive Service Minister, the Interior Communication Minister, and the Finance Minister.
2. The functions of the Justice Minister consisting in the watching over the several Judicial functionaries, to see that they do what depends upon them towards securing execution and effect to the ordinances issued, and arrangements made, by the Legislature, it will be more effectual to that purpose if, in case of inaptitude, the remedy by dislocation be immediately in the hands of the persons whose will is thwarted by it, than in the hands of another, although subordinate to, and dislocable by, themselves.
3. The functions of the Justice Minister consisting chiefly of location and eventual dislocation, no decided judgment can so easily be passed by a superordinate, without particular and minute judicial inquiry, as in the case of the functions belonging to the other Ministers.
Art. 1. In like manner as the Prime Minister, the Justice Minister is dislocable by that authority, namely, the Legislative, for the giving execution and effect to whose will, he has been located.
Art. 2. Other efficient causes of dislocatedness are the same as in the case of the Members of the Legislature, as per Ch. vi. Section 30, Dislocable, how, and in the case of the Prime Minister, as per Ch. viii. Section 9, Dislocable, how.
Securities for appropriate aptitude.
Art. 1. In the case of the Justice Minister, securities for appropriate aptitude, antecedential, down to the time of his location, as such, are, the several securities—antecedential, concomitant, and ultimate—that have been applying to him, in his anterior situation of Judge Immediate and Judge Appellate.
Art. 2. Securities concomitant, relative to connexions. In this particular case, the securities which have place in the case of Judges Immediate and Appellate have no application.
Art. 3. But in respect of the Justice Minister’s Locative Function, the securities against corruption, which apply to the several situations with reference to which he possesses the locative power, are, it is hoped, abundantly sufficient.
The only function which presents itself as being in any degree open to abuse by corruption, in any shape, is the Judicative. For the exercise of this function, the occasion will naturally be extremely rare: still more rare, accordingly, the abuse of it, having corruption for its cause.
Art. 4. Securities ultimately applying are:—
1. Dislocability by the Constitutive authority, as in the case of a Member of the Legislature, the Prime Minister, and every Minister, as per Ch. v. Constitutive, Section 2, Powers.
2. So, by the Legislature, spontaneously.
3. So, by the Legislature, on denunciation by the Prime Minister.
4. So, by the Legislature, on denunciation by any Sublegislature.
5. Punibility at the hands of the Legislature; procedure, the same as in the case of a Member of the Legislature, as per Ch. vi. Section 28, Legislation Penal Judicatory.
Art. 5. Of all persons in whose instance the power can be conjoined, with the interest, and consequent desire, to offer to the Justice Minister the matter of corruption in any attractive shape, the only one is the Prime Minister—the head of the Administrative Department, and in it of the Financial Subdepartment and Locator General, in respect of the high situations thereto belonging. In comparison of this source, corruption from all other sources seems highly improbable.
Art. 6. Between these two highest functionaries, to impossibilize all intercourse, were it desirable, would not be possible: no, nor yet to impossibilize all such corruptive intercourse. Not so, the throwing in the way of it such difficulties as to render it, if not altogether unexampled, extremely rare. For this purpose, the most promising remedy is composed of two arrangements: one is, the maximizing the distance between the two high functionaries in question: the other is, as often as between them any personal intercourse has place, the maximizing the notoriety of it.
It may be asked how, by mere notification, or though it were the complete prevention of personal and immediate intercourse, can corruptive intercourse be prevented, when intercourse by writing remains open, and through intermediate Agents’ personal intercourse? The answer is—completely prevented, certainly not: but, in case of delinquency in both of those ways, evidence having place, danger of detection and punishment is thus applied to it.
Art. 7. As to the distance—in the case of the Administrative Department, between the highest Superordinates on the one hand, and highest Subordinates on the other, it cannot be too small. On the other hand, in the case of the Administrative Department and the Judiciary Department, taken together, between the residences of the two chiefs of these two Departments, for the purpose of diminishing the frequency of intercourse, the distance cannot be too great; so as both residences are included within the limits of the metropolis—the place of common resort of all sorts of persons, for all sorts of purposes. These two remedies, in so far as they go, are both of them unexpensive and simple—simple, and free not only from preponderant evil, but from all evil in any shape.
In the case of distance, an obstacle opposed to the apprehended intercourse is of the physical class, and, as far as they go, physical obstacles are capable of being rendered altogether insurmountable; not so moral obstacles in any case.
As to expense, two residences will not cost any more, if built at the greatest, than if at the smallest distance.
Art. 8. So much as to the unfrequency of the supposed dangerous intercourse. Now as to notoriety: namely, for the purpose of drawing upon it the watchful and tutelary eye—the antiseptic influence—of the Public-Opinion Tribunal.
An institution which presents itself for the purpose is this:—Attach to each of these great functionaries, a small one—a trumpeter, with his trumpet; and let the trumpet, with its sound, accompany the great functionary to every place without the limit of his own residence: to the individual the distinction conferred will operate in compensation for the suspicion manifested: and as to the suspicion, the imputation, it being cast—not by any one, on another, but by the law, on all, on no one can it sit heavy, unless in his instance there be more or less ground for it.
Art. 9. In the case of the Administrative Department the necessity of constant, and thence, at the pleasure of the several functionaries, of familiar and confidential intercourse, has been seen: the necessity, and at the same time the innoxiousness. Widely different is the case as between the Chief of the Administrative Department and the Chief of the Judiciary. The danger here is, lest, with or without intending it, each or either should exercise on the other a corruptive influence, by the consideration of those good things, by the disposal of which each has it in his power to benefit the connexions of the other. Under the influence of such a system of securities as that which has been already seen, whatsoever may be on both parts the disposition, the particular facts necessary to the giving further effect to a sinister interest, on the part of each, could not, it is believed, be easily made known, without frequent and secret intercourse. Under a Monarchy, yes: for there, in the hands of the Monarch, at whose completely arbitrary and uncontrolled disposal, is the aggregate of all objects of general desire, what the head of the Judiciary sees is—that in the case of obsequiousness to the will of the Monarch, almost anything which it happens to him to wish for, may drop into his lap; and in case of resistance, nothing: and thus, in that case, of no explanation is there any need. But, wide is the difference in the present case.
Art. 10. The opinion and endeavour of the framers and adapters of the institution being thus declared, will afford a sufficient, if not a complete, protection against odium, to all such persons as may feel disposed, on the several occasions, to contribute to the giving execution and effect to it: acting thus as spies, (says the Constitution to them,) you act, as the greatest-happiness principle calls upon you to act: by calling you spies, a functionary whose endeavour it is to betray his trust, will neither make his own conduct the better, nor yours the worse.
True it is, that the trumpet which accompanies the one head functionary in his visits to the other, cannot accompany his intimates of all sorts, in any visits of theirs, to any intimates of the other, those of the formal sort more particularly; but by this means, though between principal and principal, sinister intercourse cannot be absolutely prevented, it may in no inconsiderable degree be obstructed and rarified: for between no two individuals, for any sinister purpose, can any intercourse, through the medium of any third person, have place, without their putting each of them, himself as well as the other, to a correspondent degree in the power of that same object of mutual and sinister confidence: and under a Constitution such as this present one, scarcely can any one sinister benefit, or any number of sinister benefits be found, for the hope or receipt of which a functionary in either of those high-situations would be likely to place himself in a situation thus perilous.
Art. 11. As, on the one hand, to the functionary, the factitious dignity may operate as compensation for the thus publicly manifested suspicion; so to the people and their constitution, the security thus afforded may operate in compensation for the evil which has for its instrument this same factitious dignity: where, as under a Monarchy, or an Aristocracy, the factitious dignity is so much pure evil—evil without a particle of benefit—every one is used to it, and therefore no one objects to it: where, as here, it is at any rate, not altogether unattended with compensation, more or less efficient, no one is used to it, and therefore many a one may condemn it.
Upon the whole, not only the probability of its being accepted, but in case of its being accepted, the balance on the side of utility will be in no small degree dependent upon the circumstances of place and time.
Art. 12. In England, when on Circuit, the pair of Judges make their entry into a County Town, they are attended by the Sheriff of the County, and one or two Trumpeters blowing their trumpets. If right there, when of no use; can it be wrong when, as here, it promises to be of special and important use?*
Art. 1. The Justice Minister will pronounce an appropriate Inaugural Declaration, in the Legislative Chamber, on his entrance into office. This Declaration will be kept in view, whenever he sits in the exercise of his Judicative function, as per Section 4.
Art. 2. For the form of an appropriate Inaugural Declaration, see Ch. xii. Judiciary collectively, Section 31, Judges’, &c., Inaugural Declaration.
[* ]Further information will be found on the subject of this article, in the correspondence as to the Panopticon, attached to the author’s Memoirs and Correspondence, as published in this collection.—Ed.
[* ]When Blackstone, the author of the Commentaries on the Laws of England, received his Oxford Professorship of English Common Law,—then as now, the ruling functionary, the Vice-Chancellor of the University, (for the Chancellor—a sort of Epicurean god—never shows himself,) never quitted the precincts of his own college, without being accompanied and preceded by a functionary styled a Beadle, wielding a sort of sub-sceptre styled a mace. A certain Dr Browne, under the name of Provost, head of Queen’s College in that University, being then Vice-Chancellor, Blackstone, on his taking possession of his office, sent a message to Browne, demanding some manifest mark of distinction: “Let him,” was the answer,—“Let him, whenever he pleases, walk before my Beadle.”