pg 207OBSERVATIONS BY AN ENGLISHMAN ON A PASSAGE IN RAFFANEL'S HISTOIRE DES ÉVÉNEMENS DE LA GRÈCE, PARIS, 1822: CHEZ DONDEY-DUPRÉ IMP. LIB., EDITEURS, P. 429 ETC.1
Art, 1er, La religion de l'état est la religion orthodoxe de l'église d'Orient (grecque).
Cependant toutes les religions sont tolérées, et leurs cérémonies sont librement exercées.
Chapitre ii. — Droit public des Grecs.
2. Tous les indigènes de la Grèce, professant la religion chrétienne, sont Grecs, et jouissent de tous les droits politiques.
3. Les Grecs sont égaux devant la loi, sans distinction de rang ni de dignité.
4. Tout étranger établi ou habitant momentanément la Grèce, y jouit des mêmes droits civils que les Grecs.
5. Une loi sur la naturalisation sera prochainement publiée par le gouvernement.
6. Tous les Grecs peuvent être appelés à tous emplois. Le mérite seul détermine la préférence.
7. La propriété, l'honneur et la sûreté de chaque citoyen sont placés sous la sauvegarde de la loi.
8. Les contributions aux charges de l'état sont réparties dans la proportion de la fortune de chacun. Aucun impôt ne peut être exigé qu'en vertu d'une loi.
Chapitre iii.— Forme du gouvernement.
9. Le gouvernement est composé de deux corps: le sénat législatif et le conseil exécutif.
10. Les deux corps concourent à la formation des lois. Le conseil peut refuser sa sanction aux lois adoptées par le sénat, de même que celui-ci peut rejeter les projets de loi proposés par le conseil.
11. Le sénat législatif est composé des députés élus par les diverses provinces.
12. Le nombre des députés au sénat sera déterminé par la loi des élections.
13. La loi des élections, qui sera publiée par le gouvernement, contiendra les deux dispositions suivantes:
1o. Les représentans doivent être Grecs;
2o. Ils doivent avoir trente ans accomplis.
14. Les députés de toutes les provinces et îles libres de la Grèce sont admis, dès que leurs pouvoirs sont reconnus valables par le sénat.
16. Il nomme, de la même manière et pour le même temps, un premier et un second secrétaires, et des sous-secrétaires.
17. Le sénat est renouvelé chaque année.
18. Le conseil exécutif est composé de cinq membres, choisis hors du sein du sénat législatif, et d'après les règles établies par la loi spéciale concernant la formation de ce conseil.
19. Chaque année, le conseil nomme son président et son vice-président à la majorité des voix.
20. Il nomme huit ministres, savoir: l'archi-chancelier de l'état, chargé des relations extérieures; les ministres de l'intérieur, des finances, de la justice, de la guerre, de la marine, des cultes et de la police.
21. Il nomme aussi à tous les emplois du gouvernement.
22. Les fonctions du conseil ne durent qu'un an.
Chapitre iv .— Du sénat législatif.
Section Ier.—Pouvoir législatif du sénat.
23. Attendu l'urgence et l'importance des besoins de l'état, le sénat législatif doit continuer cette année ses travaux sans interruption.
24. Le président fixe l'ouverture des séances et en détermine la durée.
25. Il peut convoquer, en cas de besoin, le sénat à des séances extraordinaires.
26. En cas d'absence du président, le vice-président en remplit les fonctions.
27. Les deux tiers des memb[r]es suffisent pour constituer le sénat.
28. Les résolutions du sénat sont prises à la majorité des voix.
29. En cas de partage, la voix du président détermine la majorité.
30. Tous les actes du sénat sont signés par le président et contre-signés par le premier secrétaire.
31. Le président transmet les résolutions du sénat au conseil, et les soumet à son approbation.
32. Si le conseil refuse sa sanction ou propose des amendemens, le projet est renvoyé au sénat, avec les motifs de son refus, ou les amendemens proposés, pour y être de nouveau discuté. Après ce nouvel examen, le projet est encore porté au conseil, qui l'adopte ou le rejette définitivement.
33. Le sénat reçoit et examine toutes les pétitions qui lui sont adressées, quel qu'en soit l'objet.
34. Tous les trois mois, le sénat forme dans son sein autant de comités qu'il y a de ministères.
35. Sur la désignation du président, chacun de ces comités est attaché à une branche du service public, et prépare les projets de loi qui sont relatifs à cette branche.
37. Le sénat reçoit les projets de loi que le conseil exécutif lui envoie, et les approuve, les modifie ou les rejette.
38. Toute déclaration de guerre et tout traité de paix seront soumis à l'approbation du sénat; et en général, tous traités que le conseil exécutif ferait avec une puissance étrangère, sur quelque matière que ce soit, ne seront obligatoires qu'autant qu'ils seront approuvés par le sénat.
Les trèves et les armistices de peu de jours ne sont pas compris dans cette disposition.
39. Au commencement de chaque année, le conseil soumet à l'approbation du sénat l'état approximatif des dépenses de l'année et des moyens de les couvrir; à la fin de chaque année, il présente aussi à l'approbation du sénat le compte exact des recettes et des dépenses.
Cependant, les circonstances rendant impossible la présentation d'un état approximatif pour cette première année, le sénat fournira aux besoins de la guerre et des autres dépenses publiques, sauf l'approbation du compte exact qui lui sera soumis à la fin de l'année, conformément à la seconde disposition de cet article.
40. Le sénat approuve ou rejette les propositions d'avancement dans les grades militaires faites par le conseil.
41. Il approuve ou rejette aussi les propositions faites par le conseil, pour récompenser les grands services, civils ou militaires.
42. Le sénat réglera le nouveau système monétaire, et le conseil fera battre les monnaies au nom de la nation.
43. Il est expressément défendu au sénat d'approuver aucun traité qui pourrait porter atteinte à l'indépendance politique de la nation; et s'il venait à sa connaissance que le conseil se fût engagé dans quelque négociation criminelle de cette nature, il devra mettre le président en accusation, et, en cas de culpabilité reconnue, le décheoir de ses fonctions.
44. Les journalistes ont le droit d'entrée dans toutes les séances du sénat, excepté les comités secrets qui pourront avoir lieu toutes les fois que cinq membres les demanderont.
Section II—Des secrétaires du sénat.
45. Le premier secrétaire du sénat est chargé de la rédaction de tous les actes de ce corps, et en tient un recueil exact.
46. Il reçoit du président les résolutions du sénat, et les transmet au conseil.
47. En cas d'absence du premier secrétaire, le second secrétaire le remplace.
48. Si un ou plusieurs des membres du sénat étaient accusés d'un délit politique, une commission de sept membres, nommée à cet effet par le sénat, prendra connaissance de cette accusation, et en fera un rapport par écrit. Si la commission juge l'accusation admissible, le sénat s'emparera de l'affaire. Si l'accusé est condamné à la majorité des deux tiers des voix, il sera déclaré déchu de sa dignité, et renvoyé devant le tribunal suprême de la Grèce pour y être jugé comme simple citoyen.
49. Aucun sénateur ne peut être arrêté qu'après avoir été condamné pour un délit ou pour un crime.
50. Lorsqu'un membre du conseil exécutif sera accusé d'un délit ou d'un crime politique, le sénat nommera dans son sein une commission composée de neuf membres, qui fera un rapport conformément à l'article 48. Si la commission est d'avis d'admettre l'accusation, et si le sénat, qui, dans ce cas, reste saisi de l'affaire, condamne l'accusé à la majorité des quatre cinquièmes des voix, le président déclarera le condamné déchu de sa dignité, et le renverra devant le tribunal suprême de la Grèce, qui le jugera comme il est dit à l'article 48.
51. Lorsqu'un ou plusieurs ministres seront accusés d'un crime ou d'un délit politique, ils seront jugés dans les formes et de la manière prescrite par l'article 48.
Chapitre V.— Du conseil exécutif.
Section Ier.—Pouvoir exécutif du conseil.
52. Le conseil exécutif, pris en corps, est inviolable.
53. Si le corps entier du conseil exécutif venait à se rendre coupable d'un crime ou d'un délit politique, le président serait jugé et puni, conformément à l'article 43; et, après la nomination d'un nouveau président, les autres membres seraient séparément poursuivis, jugés et punis, conformément à ce qui est établi dans l'article 50.
54. Le conseil fait exécuter les lois par les ministres.
55. Il sanctionne ou rejette les projets de loi adoptés par le sénat législatif.
56. Il propose des projets de loi au sénat qui les discute. Les ministres ont le droit d'assister à cette discussion; et le ministre aux attributions duquel est relatif le projet discuté, doit toujours y être présent.
57. Tous les actes et décrets du conseil sont signés par le président, contre-signés par le premier secrétaire, et scellés du sceau de l'état.
58. Le conseil dispose des forces de terre et de mer.
59. Il pourra publier les instructions qu'il juge convenables, et faire appliquer les lois qui concernent l'ordre public.
61. Il pourra, avec le consentement du sénat, faire des emprunts tant dans l'intérieur que hors de l'état, et donner en garantie des fonds du domaine public.
62. Il pourra également, avec le consentement du sénat, aliéner une partie desdits fonds du domaine public.
63. Il nomme les ministres et en fixe les attributions.
64. Les ministres sont responsables de tous les actes de leur département; par conséquent, ils ne doivent exécuter aucun acte ni décret contraire aux droits et aux devoirs proclamés par le présent acte.
65. Le conseil nomme tous les employés du gouvernement auprès des puissances étrangères.
66. Il doit instruire le sénat de ses relations avec les états étrangers, et de l'état intérieur de la Grèce.
67. Il a le droit de changer les ministres, et tout employé dont il a la nomination.
68. En cas d'urgence, il convoque le sénat en session extraordinaire.
69. Lorsqu'il aura été commis un crime de haute-trahison, le conseil pourra prendre les mesures extraordinaires qu'il jugera nécessaires, quel que soit le rang des personnes accusées.
70. Le conseil pourra encore, dans ce même cas, faire, si les circonstances l'exigent, des promotions et des nominations provisoires dans les grades militaires, lesquelles seront soumises à l'approbation du sénat, lorsque la tranquillité sera rétablie.
71. Dans ce cas, le conseil présentera au sénat, dans le délai de deux jours, un rapport exact et par écrit des motifs qui font mis dans la nécessité de prendre des mesures extraordinaires.
72. Comme il dispose des forces de terre et de mer, le conseil peut, en tems de guerre, prendre encore des mesures extraordinaires pour se procurer des logemens, des vivres, des habillemens, des munitions, et tout ce qui est nécessaire aux armemens de terre et de mer.
73. Il présentera au sénat un projet de loi sur les décorations à donner, en récompense des services rendus à la patrie.
74. Le conseil exécutif est chargé d'entretenir les relations avec les puissances étrangères, et peut entreprendre et suivre toute espèce de négociation. Mais les déclarations de guerre et les traités de paix ou autres doivent être soumis à l'approbation du sénat.
75. Cependant il peut faire toutes conventions de trèves de courte durée, conformément à l'article 38, sauf la communication qu'il en doit au sénat.
76. Au commencement de chaque année, il présentera au sénat un état approximatif; et à la fin de chaque année, un compte exact et détaillé des revenus et des dépenses de l'année courante. Ces deux comptes sont dressés par le ministre des finances, et accompagnés de toutes les pièces justificatives.
Néanmoins, pour cette année, les comptes seront faits comme il est dit à l'article 39.
78. Dans aucun cas, et sous aucun prétexte, le conseil ne pourra entrer dans aucune négociation, ni conclure aucun traité capable de porter atteinte à l'indépendance politique de la nation. Au cas d'un pareil crime, le président du consel est poursuivi, déchu et puni, comme il est dit à l'article 53.
79. Le conseil proposera un projet de loi sur l'uniforme des troupes de terre et de mer.
80. Il présentera encore un projet de loi pour régler la solde des troupes de terre et de mer, et pour fixer les appointemens de tous les employés du gouvernement.
Section II—Mode de poursuite contre les membres du conseil.
81. Dès que l'accusation d'un délit politique, portée contre un membre du conseil, a été admise par le sénat, l'accusé est déchu de ses fonctions; l'instruction et le jugement sont poursuivis d'après les dispositions de l'art. 50.
82. Aucun des membres du conseil ne peut être arrèté qu'en vertu d'une condamnation; en cas de destitution ou d'absence d'un conseiller, si les voix sont partagées dans une délibération, la voix du président détermine la majorité.
83. L'accusation contre un ou plusieurs ministres, admise par le sénat, entraîne leur destitution, et l'instruction de leur procès sera poursuivie, conformément à l'art. 51.
84. En cas de crimes de haute-trahison, le conseil pourra former, dans le lieu où siégera le gouvernement, une commission centrale et extraordinaire, chargée de connaître de ces crimes, jusqu'à la formation du tribunal suprême de la Grèce.
Chapitre vi.— Du Pouvoir judiciaire.
85. Le pouvoir judiciaire est indépendant des pouvoirs législatif et exécutif.
86. Il est composé de onze membres élus par le gouvernement, et qui choisissent leur président.
87. Une loi sur l'organisation des tribunaux sera prochainement publiée.
88. Cette loi fixera l'étendue de leur ressort, et les formes générales de procèdure qu'ils doivent suivre dans l'instruction des procès.
89. Cette loi sera basée sur les cinq dispositions suivantes:
1o. Un tribunal suprême sera formé et établi dans la ville où siégera le gouvernement. Ce tribunal connaîtra, sans appel, des crimes de haute-trahison et des attentats contre la sûreté de l'état.
2o. Des tribunaux généraux seront établis dans tous les chefs-lieux des gouvernemens locaux. On pourra appeler des jugemens de ces tribunaux au tribunal suprême.
pg 2153o. Il sera établi un tribunal inférieur dans chaque arrondissement. On pourra appeler de leurs jugemens au tribunal général du chef-lieu. Les tribunaux inférieurs ne peuvent point connaître des délits politiques.
4o. Il sera établi, dans chaque commune ou village, un juge de paix qui connaîtra de toute affaire n'excédant pas la somme de cent piastres, et de tous les différends de famille.
5o. Les juges de paix peuvent être accusés devant les tribunaux d'arrondissement; ceux d'arrondissement devant le tribunal du chef-lieu, et ceux du chef-lieu devant le tribunal suprême.
90. Le conseil exécutif est chargé de former une commission qui sera composée d'hommes recommandables tant par leurs lumières que par leurs vertus. Cette commission sera chargée de la rédaction des lois qui formeront les Codes civil, criminel, commercial, etc. Ces lois seront soumises aux discussions et à l'approbation du sénat et du conseil.
91. En attendant la publication de ces lois, les jugemens seront rendus d'après les lois de nos ancêtres, promulguées par les empereurs grecs de Byzance, et d'après les lois publiées par le gouvernement actuel.
Quant aux affaires commerciales, le Code de commerce français aura force de loi en Grèce.
92. La torture est abolie.
La confiscation est également abolie pour tous les citoyens.
93. Après l'organisation entière du corps judiciaire, aucun citoyen ne peut être arrêté sans l'ordre spécial du tribunal compétent, excepté en cas de flagrant délit.
Chapitre VII.— Articles supplémentaires.
94. Les go[u]vernemens locaux, établis avant la convocation du congrès national, sont soumis à l'autorité du gouvernement suprême.
95. Corinthe est déclaré le siége du gouvernement provisoire. En cas d'un changement exigé par des circonstances particulières, ce changement est arrêté par le sénat et le conseil.
96. Le sceau de l'état porte pour signe distinctif Minerve, ornée des symboles de la sagesse.
97. Les couleurs nationales, tant pour les drapeaux de terre que pour les pavillons de mer, sont le blanc et le bleu.
98. L'arrangement des couleurs dans la formation des drapeaux et des pavillons sera déterminé par le conseil.
99. Le gouvernement doit prendre toutes les mesures pour donner des soins paternels aux veuves et aux orphelins des hommes morts pour la patrie.
100. Il doit aussi des honneurs et des récompenses à toutes les actions éclatantes et à tous les services marquans rendus à la patrie.
101. A la fin de la guerre, il devra encore accorder des récompenses à ceux pg 216qui auront contribué à la régénération de la Grèce par des sacrifices pécuniaires, et accorder des gratifications à ceux que des efforts généreux pour ce noble objet auront plongés dans l'infortune.
102. La présente loi organique sera imprimée et distribuée dans toute l'étendue de la Grèce, L'original sera déposé aux archives du sénat législatif.
Donné à Epidaure, le 1er. (13) janvier, l'an 1822, et le 1er. de l'indépendance.
The Spanish Constitution is in possession of the honor of being taken for a model on all those occasions on which, with a view to the bettering the condition of the whole people in the aggregate, a new system of Constitutional law has been endeavoured to be introduced and established, to the exclusion of the several forms of government under which discontent has in such sort had place as to engage a portion of the people to join in encountering the hazards of the enterprise.1
For this honor this same body of law has been indebted, partly to its goodness, relation being had to the greatest happiness of the greatest number; partly to the urgency of the occasion, which rendered it matter of indispensable necessity to set up in the room of the form of government which it was thought necessary to pull down, some other form to which expression had already been given by a determinate assemblage of words. It was necessary men should have settled from the first what they were to fight for, as well as under direction of what individuals they were to continue to fight, or the commencement given to the fighting carried on against those whom the war found in the possession and exercise of the powers of government could not have any beneficial result.
This Spanish Constitution had its good points. According to the projet in question, the framers of the Grecian Constitution have already put themselves in possession of some of those good points, or for aught appears, may without difficulty do so in regard to all the others. The Greek Constitution (so I will call it for shortness) has in it other good points which the Spanish Constitution perhaps could not have had, certainly can not be seen to have.
The Spanish Constitution has several very bad points from which the Greek Constitution has the happiness of being free.
pg 217Upon the whole, reference had to the greatest happiness of the greatest number, the Greek Constitution seems greatly preferable to the Spanish. It is even greatly preferable to the Portugueze, though by the Portugueze considerable improvements have been made upon the Spanish.
On the other hand, relation always had to the abovementioned exclusively and uncontrovertibly right and proper end of government, considerable imperfections, or say points of inaptitude, (such they have appeared) have been found in it. Of some of the most important of these, in so far as time admitts, for the pressure is extreme, indication will on the present occasion be made. By some other occasion the design may perhaps be compleated. To those by whom alone any amendment can be applied to any such imperfections, no indication made of them can, in the nature of the case, be other than unpleasant: they can no more escape being so than bitter physic can escape being so to a child. But it is only on such terms that any attempt to afford relief to any disorder of the body politic can ever be made.
By aptitude and inaptitude, what is here, on each occasion, meant—is aptitude or inaptitude with reference to the purpose of producing such greatest happiness, or say maximum of felicity, as above.
When against this or that arrangement a charge of inaptitude is made, the source of the proof by which the charge is considered as supported is referable either to the head of general experience; or to that of particular experience: general experience, viz. of those points in human conduct and disposition which have been perceptible in all places at all times; particular experience, namely the experience afforded, either by well-organized States in which the Constitution is eminently conducive to the above all-comprehensive and exclusively justifiable end, and the people, in so far as depends on the state of the government, prosperous, happy, contented, and in the most enthusiastic degree attached to that universally understood source of all their happiness; or in this or that ill-organized State by the sufferings therein produced by this or that bad arrangement, by which a sacrifice has been made of the interest and happiness of the greatest number to the interest, real or supposed, and happiness, enjoyed or expected, of the ruling and otherwise influential few. If time permitts, I may perhaps suggest this or that additional article having for its object the making addition to such features of aptitude as the body of law in question appears to be already in possession of.
pg 218I. Apt arrangements inserted in the Spanish Constitution, as likewise in the Grecian1
1. Virtual declaration of the exclusively right and proper end of government—the greatest happiness of all the members of the community: namely, without exception in so far as possible, and in so far as by a conflict of interests it is rendered impossible, the greatest happiness of the greatest number.
In the Spanish, the recognition is made by Articles 4 and 13.2 In the Grecian it is made not quite so expressly as could have been wished. It seems however contained in it by implication: namely in Article 2, and Article 3, and Article 6, and Article 8. In agreement with this last is Art. 8 in the Spanish.3
2. By Articles 35, 18, 21, 25, etc., the Spanish Constitution gives the right of suffrage on the occasion of the Election of the Representatives of the people sitting in the Assembly of the Cortes, as also certain other Representative bodies of subordinate authority, to all Citizens.4 The definitional matter, having for its object the ascertaining what individuals shall to this purpose be regarded as Citizens, is not quite so clear and satisfactory as could be wished.
That given by the Grecian Constitution, namely in Article 2, seems rather more so. 'Of all natives of Greece' (indigènes) 'professing the Christian religion, it is declared that they are Greeks, and that they are in the enjoyment of all pol[it]ical rights.' Among these political pg 219rights, I can not but conclude it was intended to comprize the right of contributing by their respective suffrages to the election of representatives to sit in the body stiled the legislative Senate. To the Election? but by what individuals in the character of Electors? According to the inference I have drawn as above, all natives of Greece. But after looking for some direct expression as to this point, I have the mortification of not finding any. Nothing do I find that bears on it in any more particular manner than does Article 11th. in which it is said, 'The legislative Senate is composed of the deputies elected by the different provinces.'1
[II.]2 In the Grecian Constitution, Articles in which features of supposed inaptitude have been observed3
First come Articles 9 and 10, concerning the so-declared two component parts of the government: namely the body termed the Legislative Senate,4 and the body termed the Executive Council.5 In the pg 220appellations respectively given to these two bodies, there seems to be an inconsistency: and, on considering them in themselves, one of them, namely the one stiled the Executive Council, seems to be useless: and forasmuch as in regard to political power, there can not be any portion which if useless is not also mischievous, hence it will be seen to follow, that, in the instance of the body here in question, if it be useless it is worse, indeed much worse, than useless.
First as to the inconsistency of the denominations. To the body intended, as it should seem, to be chosen immediately by the people is attached the appellation of Legislative Senate. But no sooner are the functions of the body termed Executive Council brought to view, than it appears that to the Senate stiled Legislative no more than one out of two equal shares in the power of legislation in the highest grade is given, the other share being given to the body stiled the Executive Council. The consequence is—that to the whole of that power which, by the appellation of Executive given to it, one should be disposed to regard as designed subordinate (the business of the Executive power being to give execution and effect to the will entertained and declared by the legislative) is added a share in that same superior power. So that here is a body of functionaries which is at the same time placed in subordination to and in coordination with another body to which, by its appellation, it is indicated as being purely subordinate. Moreover thus it is that so far from being in effect subordinate, this declared subordinate is in effect greatly superior in power to its so-declared superordinate, which effective superiority will appear to have place most incontestably when the powers given to the so-stiled Executive Council are brought to view in detail, as they will be presently.
Now then as to the inaptitude of the body itself, and of the arrangements by which existence is given to it.
Of all the arrangements that have application to it, the only one that in my eyes wears the character of aptitude is Article 22 in which the pg 221functions of this body are declared not to endure beyond the term of a year. Here then, should it be found unapt, is a door left open for the exclusion of it.
First as to the person or persons by whom members of this body have been, or are to be, chosen: this is more than I can find any mean of determining.
In Article 18, after saying that the number of its members is five, it is said that they are chosen hors du sein du sénat législatif. Here is a fault somewhere: namely either in my acquaintance with the French language, or else in the translation made into that language from the Greek original. Is it that the members of this Council must be or that they must not be members of the Legislative Senate at the time when the choice is made? This is a doubt to which I must confess myself unable to find the solution. But in either case the objections I see applying to it apply with not much less than equal force.
From the remainder of this same Article, I see that the manner in which the Council is to be formed is a matter which remained to be settled according to a set of rules to be established by a special law as yet not made.
Be these rules what they may, I proceed to shew why in the first place this body is in my view of the matter useless.
It is itself composed of five Members. By these five (per Article 20) are to be appointed eight other functionaries, under the name of Ministers. Number of functionaries thus belonging to the Executive Department, adding the two grades together, 13. To these same five belongs moreover (per Article 21) the power of placing functionaries in all the other employments of government. Note that by whom they shall respectively be liable to be displaced is not mentioned.1
Now of these thirteen, eight at least are I say altogether useless. For proof I appeal as above to particular experience: the experience afforded by the only Constitution that ever really had for its object or end in view the greatest happiness of the greatest number: I mean the Constitution of the Anglo-American United States. Here at the head of the Executive Department you have a single person, the President of the United States. To him alone belongs the direction of the whole business of that Department. To him belongs the direction to be given to, the command over, the whole Military force of the Country by Sea and Land.2 To him belongs the placing and at his pleasure the pg 222displacing of the four Ministers stiled Secretaries by whom, in subordination to the President and the Legislative Assembly stiled the Congress, the whole civil power of the confederacy is exercised: namely 1. Secretary of State, 2. Secretary of War, 3. Secretary of Navy, 4. Secretary of Finance.1 If the business of the Greek Nation is but carried on with a degree of aptitude and success not very much below that with which it is carried on in that confederated Commonwealth, the Grecian will be a happy people. Nothing approaching to it has yet been seen any where else; no: nor ever will be on any other condition than that of imitating it. Now then, supposing my advice on the subject asked for, it would be this. Take some one individual—for example the President of that same Executive Council—give him the power possessed in the Anglo-American Commonwealth by the functionary whose title is President of the United States. This done, take four other individuals, say for example the four other Members of the so-stiled Executive Council, and give to them respectively the functions and powers possessed respectively by the abovementioned Secretaries. Call them Secretaries or Ministers as you please: but on account of the collateral ideas associated with the two denominations respectively, my recommendation would be to call them Secretaries and not Ministers. Under the appellation of Secretaries they present to my imagination the images of so many responsible instruments of good government, under a free and happy people: under the name of Ministers, the ever mischievous and profligate tools of a Monarch, leagued or not leagued with a set of sub-despots in the condition of Aristocrats, having for their sole business the exercise of depredation and oppression in all their forms over, and at the expence of, all the other members of the community who are not sharers with them in the spoil.
Be this as it may, having these five functionaries thus equipped with power, no need have you either of the Executive Council with its five Members or of your eight Ministers of State.
Note that seeing that four2 Secretaries are sufficient for conducting, under the President, the whole of the business of the Executive Department in the Anglo-American United States, not merely four, but even fewer than four, should be sufficient in Greece.3 For whether it be population or territory that is considered, but more especially if it pg 223be territory, think how small the scale is upon which every thing that has place, has place in Greece, when compared with the vast scale upon which population, but more particularly territory, has place in that only as yet known seat of Good Government!
In holding up to view the state of government in that federative democracy as a model for imitation, I mean not that the imitation should be undiscriminating. In that hitherto matchless seat of practical wisdom and experienced felicity, the machinery of government has not however as yet all that simplicity of which it appears to me susceptible. The President is placed in his situation—not by those to whose declared will it is designed that on every occasion he should as far as in his power give execution and effect, but by the suffrages of a set of appropriate Electors nominated by the legislatures of the several confederated Commonwealths: and the time of his continuance in Office is four years. For my part, I see not any evil that would be likely to arise, if, in your case at the beginning of each year, this Chief of the Executive Department were elected by the Members of the legislative body, meaning your so-stiled Legislative Senate, the negative on their proceedings being supposed taken away by the abolition of the so-stiled Executive Council as above. True it is that, with the exception of the time and labour bestowed as it seems to me without equivalent profit, I know of no evil as having actually been produced by the interposition of these two bodies of Electors. But so admirably well-adapted to its object in its essential points is the machinery of that Constitution, and in particular such is the tutelary force of that grand corrective of all political evil, the power of public opinion, supported by the all-comprehensive body of appropriate and ungarbled information, continually poured in upon it by the vast multitude of the public journals, that in the excellency of the whole taken together any little imperfections that may have place in this or that particular part find in practice an effectual corrective. But when a newly formed, or rather about to be formed, state is the subject of consideration, principles should be looked out for: and to all such arrangements as are seen employed in any other political State, the manifest prosperity of which holds it out as an object of imitation, a careful scrutiny should be applied, lest, in regard to such good effects as are produced by the whole machinery taken together, this or that part, of which when considered by itself it will be plain that nothing but obstruction can be afforded, be numbered among those efficient causes by which every good effect discernible in the aggregate result has in reality been produced.
Looking out for a ruling principle, on this occasion then, what I ask is—What is the design and use, in so far as it has any, of the pg 224Executive department? Answer, I know of but one: and that is—to give execution and effect to the will declared by a superior department, namely that to which is generally given the name of the Legislative.
As to the Greek government, under the Constitution in question it is out of all question a Representative Democracy, Now in every such Commonwealth I behold three authorities one under another, meaning in the case of each that which is supreme in its own grade. So many of these authorities as there are thus standing in a line one to another, so many situations may be spoken of as existing, or so many Departments. In the first and highest situation stand the members of that department which I stile the Constitutive: next below them, the members of that which I stile the Operative. Constitutive is a term of relation: the department to which it bears relation and reference is that same Operative. To the members of the Constitutive department it belongs then to choose and place in their situation, and at certain intervals, if such be their pleasure, to displace, the several members of the Operative department. Under the business which I consider as belonging to this same Operative department I consider as included the whole of the business of government: one part alone excepted, namely that which consists in determining who the individuals are by whom all the rest of the business shall be done: this being understood, that in the business of the Operative department are included that of the legislative and that of the Executive.
Here a sort of paradox—a sort of apparent inconsistency—presents itself: in the scale of power, those, over whom all power is exercised, superior to those, by whom all power is exercised. The inconsistency is however only in the expression: for in fact the like has place in every political state to which the name of a Representative democracy is applied or applicable. On all days in the year but one, and on that one day to all effects but one, the members of the Constitutive department are subject to those of the Operative: but to that one effect on that one day the subordination is reversed, and the members of the Operative department are subject to those of the Constitutive. It were hard indeed, if possibility were not sufficiently proved by fact.
Now then as to the Operative department, it is by the necessity of the case that it stands divided, as above, into the two departments stiled the legislative and the Executive, Not that of these two departments the Executive is to be understood as being coordinate with the legislative any more than the legislative alone or the legislative and the Executive taken together are to be regarded as coordinate with the Constitutive. No, it is matter of absolute necessity that, with refer-pg 225ence to one of them, namely the legislative, the other, namely the Executive, should be subordinate. For the legislative department being established, why is it that any part of the1 business of the Operative department is committed to any functionary or set of functionaries other than those by which that of the legislative department is to be done? Is it that the functionaries employed in the legislative department may find in another department a man or set of men by whom controul or obstruction in any shape may in any event be opposed to their power? a man or set of men by whom the giving execution and effect to any will, which they have concurred in the formation of, may be subjected to frustration or even to delay? No such thing. The reason why that which is taken out of their hands, is accordingly taken out of their hands is—or at any rate the only reason on which its being so can be justified, is—simply this: namely that when the business turned over, and as it were turned down, to the Executive department has, the whole of it, been taken out of their hands, as much is left in their hands as it is physically speaking, supposing due attention paid to it, possible for them to go through: indeed, as in the American United States experience has amply shewn, more than they do or can go through without continually subjecting large portions of it to a delay by which serious inconvenience, in particular and assignable shapes, is continually produced, as also the ultimate frustration of many a useful design, for want of the faculty of applying to it that portion of time [before that period] at the expiration of which its original feasibility deserted it. In the Executive department of that same Government, look to the four Secretaries of State acting immediately under the President. See them staggering, each of them, under the load of the business which is continually pouring in upon their shoulders. This done, conceive the aggregate mass of their respective businesses added to the mass of business at present executed by the legislative assembly stiled the Congress. Say then whether the mere division of the load of business, without any such design as that of dividing power between two sets of conflicting functionaries with opposite interests and consequently opposite wills, has not been the true and only beneficial effect which has been experienced from these arrangements, at least by which the business of the Executive department has been placed in hands different from those which stand charged with the business of the legislative.
The will of the greatest number being supposed to be under the guidance of the true interest of the greatest number, constantly, and by sufficiently apt means, aiming at the production of the greatest pg 226happiness of the greatest number (and on no other supposition can the existence of a representative democracy be justified), behold then, in respect of subordination and dependence as between authority and authority, department and department, the only state of things the production of which, in so far as possible, can be justified. It is that by which the conduct of every subordinate functionary is placed in a state of as strict and absolute dependence as is possible on the aggregate will of those among whom the supreme power of the state is shared: and these are the members of the Constitutive body—the individuals contributing by their respective suffrages to the constituting and placing in their respective places the several functionaries among whom the power of the principal, called the legislative, branch of the Operative department is shared. Now, of the conduct of the several members of the Supreme legislative body, the dependence on the aggregate will of their immediate and only superiors—the possessors of shares in the supreme Constitutive power, can not, it will readily be admitted, be too strict. Why? e'en because it is to no other end than that of giving execution and effect to that which, on each occasion, it is supposed, could the details of the case have been before them, with sufficient time for consideration and discussion, would have been their will with relation to the subject in question—it is no other end than this, that this department with its subordinate power is created, the functionaries belonging to the superior and supreme department, namely the Constitutive, being by other and still more indispensable occupations—namely that of providing for all classes taken together the means of continuing their existence, prevented from, taking direct and particular cognizance of that which requires to be done.
Thus necessary is the strictest and most absolute dependence of the conduct of subordinates on the will of superiors as between the members of the legislative department on the one part and those of the Constitutive on the other part. But for this same reason not less so is it as between the conduct of the members of the Executive department and the declared will of the members of the Legislative department. Why? because exactly proportioned to the strictness of the dependence of the conduct of this department which stands third in rank on the declared will of the members of its immediate superordinate—the department second in rank—will be the strictness of its dependence on the necessarily presumed will of the members of the superior department of all—of that department so constituted that the interest of all its members is the same thing with the universal interest. In the Executive Department let the number of grades one [under] another be ever so great, the demand for the strictest depend-pg 227ence possible, and the reason for it, will remain unchanged. Suppose for example, a single Functionary at the head of it, and under an appropriate name, say in the language of the Anglo-American Union the President, occupying to himself the highest grade. Immediately under him, in the next grade, [four]1 functionaries by the name of Secretaries or Ministers, placed at the head of so many sub-departments: Landed branch of the Military force, Naval branch of the Military force, Foreign affairs, and Finance:2 each with others under him in so many different grades, forming a chain of indefinite length composed of so many links as there are grades.
As to the mischief resulting from any deficiency in the strictness of dependence, the civil, the Non-military, department stands in principle on the same footing as the Military. The only difference is that which regards time. To what purpose is the Lieutenant General added to the General, the Major General to the Lieutenant General, the Brigadier General to the Major General, and so on down to the lowest grade? Is it that, by the occupant of each inferior grade, obstruction and delay may be opposed to the will manifested by his immediate superior, and so on up to the will of those who have no superior? No: but that with greater certainty, and if possible even with greater promptitude, the superior will, and at length the supreme will of all, may in each instance receive execution and effect.
To return to the Operative department taken in the aggregate. If by the possessors of the power of the Constitutive department, the power detached from their own and given by them to the members of the Operative department, and in the first instance to the legislative branch of it, were not thus detached and parted with, no power at all would they be able to exercise. As to the remnant which after the detachment thus made remains to them, there is nothing of splendor in it; but such as it is, it is found to answer to perfection the great and universal purpose—the purpose of all who share in it: they are therefore not losers but gainers, even in the article of power, by the sacrifice, if such it can be called, which they thus make.
The case of agency on this largest scale, compare it, in this respect, with the case of agency on an individual scale. By whom would any such supposition be entertained, as that the interest of an individual would be the better served, if, after appointment made by him of an agent for the management of a certain portion of his affairs, such agent should have it in his power to appoint, and should appoint accordingly, sub-agents who should have the power of opposing pg 228obstruction, delay, and eventual frustration, to any operation which he might deem it for his interest to have performed? and this without its being ever in his power to remove any such obstruction so created? By whom would any such supposition be for a moment entertained, as that a proposition for the interposition of any such irremovable instrument of irremovable obstruction could ever have had a regard for the interest of the individual in question for its efficient cause? Assuredly by no one whatsoever.
Thus then, for a principle of incontestable utility, in the most extensively public as in the most private management, we have the principle of absolute and all-pervading dependence: dependence, namely of all agents upon their common principal.
If this explanation has been rather of the longest, and perhaps rather longer than was necessary, and even than it would have been had there been time for shortening it, the practical importance of it will be found proportionable. It will operate as a source of simplicity carried to its maximum: it will operate as a sponge upon immense masses of the most mischievous complication in an endless diversity of forms. It will rid the Greek Constitution of its Executive Council, of one half of the number of its Ministers of State. It will rid it of its eleven Members of the Judiciary power, established by Articles 85 and 86.
It will suffice of itself to prove the impossibility, that in the English form of government the power exercised by the King, or the power exercised by the House of Lords, should ever have1 had for the end of its creation the greatest happiness of the greatest number, or so much as the happiness of any individual other than the several sorts of person by whom those powers have been and are exercised and their several connections. It will rid the country of both these sources of misrule and misery, so soon as the eyes of the greatest number are sufficiently open to the only sound principles of the art and science of government; that is to say if the supreme Constitutive power be lodged in the hands of all who are capable of bearing a part in the exercise of it, instead of being engrossed by a minute fraction of that number almost all of them listed in the service of misrule by a community of corrupt and sinister interest.
It will render similar service to France, in the eyes of all Frenchmen who can endure to look at it.
It will rid the Spanish constitution of its King: and of that vast reservoir and fountain of the matter of corruption, the Council of State with its forty members, all of them creatures of the Monarch.
It will render similar service to Portugal.
pg 229It will render service even to the Constitution of the Anglo-American United States, matchless as it is as yet, and little short of the summit of absolute perfection as it is. It will clear it of its Senate: a mass of useless, and thence worse than useless, complication: introduced by a natural and not illaudable timidity, at a time when principles were as yet unsettled, and no sufficient stock of experience as yet obtained: established in imitation of that parent government, which, not without reason, was universally regarded as the best, or to speak more properly the least bad, government that, till the Anglo-American Government had had time to manifest itself, had ever been exemplified.
In this same Senate, set down by the side of the Assembly composed of the immediate Delegates of the people, I see a source of factitious delay, of waste of time on the part of the Members and their Electors, of waste of money given in the name of pay. In various shapes I see more evil done by it than I can here find time to bring to view. Applied to the power of the President, I see his responsibility diminished by it. I see him choosing subordinates under a secret necessity of letting the Members of this body into a share of the patronage. I thereby see in it a natural source of corruption applied to the power of the Assembly of Representatives. I see it opposing, to an indefinite amount, obstruction to the will of the Members of the Constitutive body as manifested by their Delegates. In its Members, continuing in that situation as they do for six whole years, I see a source and seat of aristocratical feeling and prejudice. A set of men, not placed immediately by the people, but by another set of men who have been placed by the people—this set of men, paid at the expence of the people, may, every one of them, in spite of the people, continue for six years together in the practice of delaying or defeating arrangements proposed by the people's immediately deputed delegates, whose faculty of running counter to the will of the people lasts not, in the instance of any one of them, more than two years. Nor would these two years have been more than one, had it not been for the vast quantity of time necessary to be consumed in travelling between the seat of election and the seat of government. Accordingly in Spain, that authority lasts but for one year. And so in Portugal.1 From an authority thus constituted, the best that can be hoped for is inefficiency: the more efficient, the more maleficent. I see not a single good effect produced with it that would not be better produced without it. The Spanish Constitution has no such Second Chamber, as the phrase is, to throw obstruction in the way of all the proceedings of the first: and pg 230from the omission none but good effects have ever been found. To the Portugueze Constitution the same observation applies with at least equal force. I see nothing but its existence that seems capable of being alledged in support of its existence. But of any utility that may be supposed to belong to it, a most simple and convincing test is that which the Citizens of that only seat of good government have at all times in their hands: a test which even any one such Citizen has it in his power at any time to make application of. Let him look over the history of the proceedings of Congress since the first introduction of this part into the machinery of its Constitution. Let him note in the first place what in his eyes are the apt arrangements to which it has applied its obstruction, and which notwithstanding such obstruction have been established. Let him note down in the second place the apt arrangements which have as yet remained excluded by it. Let him note in the third place the unapt arrangements which have as yet been kept excluded by it, and which would have been established if it had not been in existence. My expectation would be to find in each of the two first lists some articles, and in the last either none or next to none.
True it is that only to a representative democracy having for its end in view the greatest happiness of the greatest number, and to that end to the giving advancement to the interest, and execution and effect to the will declared as far as it can be declared, of the greatest number, can application be made of this principle of absolute and universal dependence with any advantage. Applied to any such form of government as the English, it would be the consummation of despotism and misrule: it would give to the laws, were they ever so much worse than they are, a strength altogether irresistible. But whatsoever remains useful in the English government has its source not in the strength but in the weakness of the laws. So inexorably hostile to the interests of the greatest number are those laws and judicial practices which belong to the constitutional branch of the field of law, that rather than that those parts should not be weak, it is desirable that the whole should be weak together, and so intensely mischievous are they, that the weakness of the whole can not be too great. Accordingly in the general texture of the laws such a degree of weakness and comparative inefficiency has place as is scarcely to be found in any of the purely despotic Monarchies. This salutary weakness has for its cause partly the anxiety of the Aristocracy to give to themselves security against arbitrary power in the hands of the Monarch, partly the arrangements made by the Members of the Judiciary for the purpose of keeping screwed up to its utmost pitch that uncertainty on which their sinister emolument and no less sinister power depend.
pg 231To keep on foot the delusion by which the whole system, taken in the aggregate, is represented as being not only comparatively but positively good—good, not only when compared with despotism under its various modifications, but with the best form of government imaginable—to keep on foot this delusion, a substitute to the only true principle above-mentioned has been invented and held up to view. It is that which holds out the division of power among rulers as the most efficient if not the only security for good government: meaning in this case by power the supreme power in its highest grade: the division of it, namely among divers authorities, two or more: any such power as an universally applying Constitutive power in the hands of the greatest number, as above, not being recognized as that which either has or ought to have place any where in the machinery of government.
This principle has this much of good in it, that, though incompatible with the only good form of government, it has at times operated as a palliative, how feeble soever, to the mischief produced by a bad one.
True it is, that where, between one functionary or set of functionaries and another, a power which is independent of that of the people is shared out, a case there is in which such division, in so far as it has place, has a tendency to be productive of effects beneficial to the interest of the people. This is—where the power so divided is the Supreme power in the State, say the power of legislation in the highest grade, and the mode of division such that no valid act can be performed by the one of these authorities without the concurrence of the other. In this case the power is fractionized: the whole power is the integer, and each of them has a fractional part of it. Thus in the English Government the whole of this power is divided into three fractions: to the King belongs one, to the House of Lords another, to the House of Commons another. In the case of each of those two Houses, the fraction is moreover further fractionized: to each Member belongs a fraction of that of the House he sits in: which fraction is thus a sub-fraction of the whole. In a case of this sort, this same good tendency what does it depend upon? It depends upon those disagreements and those contests which in such a case are so natural, and have been so universally exemplified. Every such contest having for its subject-matter the obedience of the people, each party has found itself under a necessity more or less urgent of courting the good will of the people. The consequence has been that when between the parties so contending a cessation of hostility and a compromise in some shape or other has had place, they have both of them found themselves under the necessity of concurring in the establishment of some arrangement from which the interest and condition of the people has received some more or less beneficial service.
pg 232Under the sense of this necessity it was that on the occasion of their contest with King John the Members of the great Aristocratical body of the time, the Barons, in the termination they put to that contest by the Charter which they succeeded in exacting from him, admitted the great body of the freemen into the benefit of some portion of the security, such as it was, which it professed to establish. But, what seems probable, is—that the portion of the population to which this security was on that occasion extended, formed in those days by far the smallest portion of the whole.1
Thus again on the occasion of that conflict which in the year 1688 substituted one race of Monarchs to another, when the Aristocracy of the country obtained for itself not only security against arbitrary power in the hands of the Monarch, but a share coordinate with his own in the power belonging to the legislative and judicial departments, they could not altogether avoid admitting the great body of the people to the benefit of some share of the security obtained for themselves in respect of person and property. For their own share they gave themselves that security which was afforded by the undisturbed possession of their till then disputed and precarious share in the Supreme power as above: to the people, they knew better than to give to them any such security: in place of it what they gave them was—that tissue of vague, unobligatory and ineffective generalities called the Bill of Rights.2 From men so situated how could any thing better have reasonably been expected? By a genuine representation of the people, the power of the people would have been encreased, whereby that of these their rulers would immediately have been diminished, and peradventure ultimately abolished. The system of sham representation, as if it had been the people's only safeguard, was therefore most carefully, and in all its plentitude, preserved.
With the conflict between the King on the one part and the two branches of the Aristocracy on the other ceased all chance of ulterior benefit to the interest and condition of the people. Whatsoever real benefit had ever resulted to the people from that same division of power became purely nominal as soon as the contention between the parties sharing in it ceased. No sooner did that contention cease by the establishment of a new succession of Monarchs, than a partnership between the formerly contending parties took its place: a partnership, the stock of which was at all times composed of such part of the property of the people as could be extracted from the owners on pretence of making provision for the expences of government. True itpg 233 is that notwithstanding this bond of strength a sort of comparative weakness remained, in which the people have found a source of comparative advantage. To the single-headed despot by whom, as in the Continent, all the powers of government would have been exercised succeeded in these islands a many-headed despot: and in the constitution of this beast of prey there is a sort of weakness which prevents him from driving on in the career of depredation and oppression at a pace quite so rapid as that which has every where been kept up by a single-headed one. In this retardation consists the only real benefit derived from the supposed sole and sufficient security for good government: for, sooner or later, the arrival of the vehicle at the bottom of the abyss is not less certain in the one case than in the other, unless in the mean time a government in the hands of the people should by some means or other be made to take [the] place of a government in the hands of their natural and for ever implacable enemies.
Any division which it might be proposed to make of the supreme power in the State, has it or has it not a tendency to lodge any part of that same power in the hands of the great body of the people? If not, in what way is it possible that by that same great body any benefit should be reaped from it? If yes, suppose such tendency ripened into act: the consequence is—a portion of the power, but no more than a portion, becomes lodged in the hands of the people. But from this portion, be it ever so considerable, how is it possible [that]1 any benefit can be reaped by them greater than or even so great as that which would be reaped by them from the whole? In a word how can a chance of a part be equal in value to the possession of the whole? Yet on this chance of a part, and it has been seen how feeble an one, depends the utmost benefit which can ever have been supposed derivable by them from any division made of the supreme power in question, they by the supposition not having any share in it.
Take now the converse of the above case. Suppose the whole of the supreme power already in the hands of the people: and then let it be seen whether any benefit could be produced to them by any scheme of division by which this or that portion of it were lodged in other hands. Take for example the Anglo-American United States. In that seat of good government and consequent felicity, the whole of the Supreme power is in the hands of the people: the supreme Constitutive in the hands of the greatest number: the supreme Operative, supreme Legislative and Executive included, in the hands of agents of theirs, placed by them, some in an immediate, others in an unimmediatepg 234way, sooner or later all displaceable, and those who have most power regularly displaced by them. Add now a King, with a veto upon every act of the legislative body, and the power of placing and displacing all subordinate functionaries belonging to the Executive department. Here then would be division of power: a division, so far as it went, agreeing with that which has place in England. To the people in question what would be the benefit of it? By the most anxious scrutiny could any the smallest possible particle of benefit be found derivable from it?
At the very commencement of his reign the least you could do for Mm (it is the least that has any where been done for him1) is—to take from the producers, and pour into his lap, a mass of property equal to that which suffices for the subsistence of several thousands of them in the same time. But if instead of thousands they were, as in England and France, myriads, never would the allowance thus made to him be, for never has it any where been found, sufficient. No sooner were he installed than he would begin to do as George the third did all his life, and as George the fourth is doing now: George the third who, in the course of his reign, forced the people at nine different times to pay his debts: George the fourth who in the same career is outstripping his father.2 The offices placed at his disposal would not be numerous enough, nor rich enough. To fill up the deficiency, he would talk of honour and dignity, and plunge the country into war: he would talk of trade and commerce, and build nests of lucrative offices in distant dependencies: he would conquer colonies for the sake of wars: and wage wars for the sake of colonies.
If, for the conferring the supposed benefit of the people, by taking power out of their hands and lodging it in the hands of men with interests unchangeably opposite to theirs, what is as yet supposed to be done is not yet sufficient, to the defalcation thus already made from their power, add another. For the necessary support of so necessary an ingredient in good government as a Monarchy, establish an hereditary aristocracy, establish a House of Lords. But, not being exclusively dedicated to the service of God by vows of celibacy, the men thus made into great men will to the customary extent be blessed with sons and daughters. The fathers will all of them have dignity to pg 235support: their Honourable and Right Honorable children will all of them remain honoured with the corresponding burthen. Here then is a demand for more lucrative offices, and as the indispensable sources of new offices, more wars and more distant dependencies.
Nor is this all. For these and so many other honourable men, factitious honor and dignity in all its innumerable shapes must be provided, or merit in all its shapes must go unrewarded. By the sole and infallible judge of merit in all its shapes, titles of honor must be scattered around, and with or without garters, stars and ribbons.
In company with the correspondent merit, this honor and dignity you have in whatsoever quantity you deem requisite. For its support, unfortunately, each title and each ornament requires money: but you know already where and how to get it.
Still though you have your House of Lords, you have not as yet any such quality in it as holiness. No holiness without Bishops. Over a competent number of them, place a competent number of Archbishops; you may thus condense any additional quantity of holiness into one and the same receptacle. In every desirable degree of plenitude every one of these receptacles may be and will have been made full of the Holy Ghost: but to accomplish this plenitude a proportionable quantity of the1 manna of unrighteousness must have been forced into their unwilling pockets: and to be forced into those sacred pockets it must have been forced out of the profane pockets of the people.
The most important arrangement in this system of the division of power remains yet behind. It consists in the depriving the vast majority of the people of those votes which constituted their share in that supreme Constitutive power, which on the supposition we set out with was divided among them all in equal portions. By the minute remnant, the greater part of it in the hands of the Members of the so-called House of Lords, will thereupon be chosen another House of Lords who for distinction sake you may call a House of Commons. This fundamental defalcation accomplished, accomplishment is given to that form of Government which in England, where no such document as a Constitutional Code is in existence, is known by the name of the matchless Constitution: and sure enough its match is not any where to be found. In regard to money matters, would you see by the light of experience the effects of the change? Look to England and behold annual expence of government, exclusive of interest of national debt, £St.18,577,636: annual interest of national debt, £St.30,921,494: the debt in the shape of a perpetual annuity to that pg 236amount: an annuity, the whole of it indeed redeemable, but redeemable at a time that never can come.1
By any warning given against open negatives upon the power of the people, the service rendered would be very incomplete without the addition of a like warning against latent ones. With or without design, a negative of this latent sort may be seen given in and by several of the Articles of the Greek Constitution: namely Articles 24, 25, 30, 31, 36, 46, 54, 57. In regard to any such negative, such veto as it has been called, mark in the first place one general effect of it. This is—the investing the possessor with the faculty of obtaining in the way of compromise a share in every power to which it is applicable: which share he applies of course to his own purposes, whatever they may happen to be.2
In this latent form, be the proposed arrangement or measure what it may, a negative upon it is given to every functionary by whom, on pain of its being of no effect, this or that act must have been done in relation to it. Now then if so it be that the functionary on whom this power of controul has been conferred is in a state of perfect official dependence—a mere copying Clerk or Scribe, suppose, whose continuance in his situation is altogether and at all times dependent upon the will of some higher functionary, the possible negative thus given may perhaps be in little or no danger of becoming an efficient one. But, if so it be that the functionary thus gifted is a person in a situation of declared or virtual independence, in this case it is not rendered the less efficient but rather the more efficient a negative by its not being an openly declared one.
Now then for the instances.
First as to all operations together, taken in the lump.
1 . By Article 24: 'To the President, namely of the so-stiled Legislative Senate, it belongs to determine the day on which each Session pg 237of that Assembly shall commence; as also the day on which it shall terminate.' If then he determines no such day, no such Session can have place: moreover if, such having been his pleasure, so it be that a Session having commenced and for a certain time continued, his pleasure in this behalf has changed, he declares such his pleasure accordingly, and from that time a negative is put by him in the lump upon all such proceedings of the Assembly as would otherwise have succeeded. True it is that by Article 1 to that same Senate itself it belongs to choose this same high-seated functionary. But, when the choice has been made, such, as above, is the state of dependence in which that body has been placed under this its own offspring: dependence for its very existence. Now then, an act of this sort of parricide suppose it to have been committed: the consequence is—that what is left of the powers of government falls of itself into the lap of the so-stiled Executive Council with its five Members, acting as they are to do in a perpetually secret conclave.
Supposing him to have (under Article 24) put an end to the existence of these his creators, by Article 25 he is empowered to bestow upon them at any time a new existence. 'In case of need' (says this 25th. Article) 'he may convoke the Senate to enter upon an extraordinary Session.' Thus it rests at all times at his choice whether to sell existence to them at his own price, or to leave them in a state of annihilation. If and so long as they are sufficiently obsequious, he suffers them to act accordingly: if refractory, he lays them asleep: and so toties quoties. Thus far as to the latent negative or veto in the hands of the President on the operations of the so-stiled Legislative Senate taken in the aggregate.
Now as to the several operations taken in detail.
1. By Article 30th., 'Every Act of the Senate is signed by the President and countersigned by the principal Secretary.' Suppose then an Act the tenor of which does not suit his views: what is the consequence? He withholds his signature, and no such Act can come into existence.
Moreover in this same power he has a sharer, it has been seen, in the principal Secretary.
2. A second means of applying the President's particular Veto is put into his hands by the next Article, Article 31. 'The President' (it says) 'transmitts the Resolutions of the Senate to the Council' (meaning the Executive Council) 'and submitts them to its approbation.' Good. But in the mean time though inexplicitly they have not the less effectually been thus submitted in the first place to the approbation of this same pg 238all-powerful functionary. Do they suit his views, he transmitts them accordingly: do they thwart his views, he keeps them where they are. President of so-stiled Legislative Senate to President or other most influential member of the so-stiled Executive Council—'You see this Resolution: what will you give me if I transmitt it to you?—what will you give me if I keep it back?' The language will naturally be the very quintessence of decorum: and so it may be, while this and nothing else is at the bottom of it.
3. Article 36, after saying that 'Every Member of the Senate may propose a project of law in writing', goes on and says, 'which the President refers to the examination of a Committee'. Suppose then introduced in this manner a project of law which has the misfortune not to suit the views of this great functionary, what becomes of it? He receives it, omitts to forward it to any Committee, and there is an end of it. It is thus stifled in embryo.
4. So much for the President of the so-stiled Legislative Senate. Now again for the Principal Secretary of that same body. In and by Art. 46 he is once more let in for an equal share with the President as above in the negative which we have seen the President put in possession of by Article 31 with regard to all Resolutions of that same Senate. 'He', (the principal Secretary) says the Article, 'receives from the President the Resolutions of the Senate and transmitts them to the Council'—namely the so-stiled Executive Council. Thus then, if it be the pleasure of the President not to deliver them to the Principal Secretary, or of the Principal Secretary not to transmitt them to that same Council, there is an end of these same Resolutions.
Mark now the secret perils which every offspring of the wisdom of the so-stiled Legislative Senate has to encounter and surmount before it can come into existence. Instead of birth comes abortion, if either to the so-stiled Executive Council, that is to say to three out of its five Members, or to the President of the so-stiled Legislative Senate, or to the Principal Secretary of that same Legislative Senate, it has the misfortune to be an object of displeasure, or even of indifference.
But the list of its perils is not yet at an end. When it has passed through these, and (under Article 32) received existence from the hands of the so-stiled Executive Council, if as affairs turn out so it happens that to three of the five Members of which the so-stiled Executive Council is composed it afterwards ceases to be agreable, it is consigned to a sleep, to which there is no assignable termination. For, says Article 54, 'The Council causes the laws to be executed by the Ministers.' Suppose then a law which, to the Minister by whom execution and effect should be given it, happens to be disagreable or an object of indifference: if so it be likewise to three out of the fivepg 239Members of the so-stiled Executive Council, they have but to let the law pass unnoticed, and so long as this is the case with it, it sleeps. Suppose it even to be agreable to the Minister, still if it fails or ceases to be so to any three of these five great functionaries, I would not give much for any benefit that rested upon it.
One concluding peril is yet behind. Be the arrangement what it may, in vain might it suit the views of a majority of the so-stiled Legislative Senate; in vain might it moreover suit the views of four-fifths of the five Members of the so-stiled Executive Council. If the President of this same Council is not one of them, he has but to with[h]old from the Act his signature and there is an end of it. For, by Article 57, 'Every Act and decree of the Council is signed by the President, countersigned by the Principal Secretary and sealed by Seal of the State.'
Here we see moreover given another latent veto with this additional hand for the reception of it. This same Secretary of this same Council of five, is he or is he not of the number of its Members? To that question no answer have I found.
But now a word as to this same Seal of the State. This seal is either in the hands of some one person, or in the joint hands of divers persons. Who is that one person? or who are these divers persons? For in him or them resides another latent negative. In the English Government different seals are in the custody each of them of some one individual functionary. Of these several functionaries, each one, so long as the seal is in his keeping, has not only an effective but an acknowledged Veto upon all acts which for their validity require upon the face of them an impression of the appropriate seal.1 True it is, that to the King it belongs to take each seal out of any one pair of hands and place it in any other. But, so long as it remains in the hands of any person other than the King, that person has an effective veto upon all such acts as require an impression of that same seal to make them valid: and so long as it remains in the hands of the King alone, no binding force will be attributed to any act bearing an impression made with it: to render the act valid, in addition to such impression, the counter-signature of a subordinate functionary in whose custody the seal is will be deemed requisite.
On the occasion of the warnings herein above given, the governments chosen for examples have been the only good one, and among the bad ones the least bad that could be found. Against those which have place in Russia, Austria and Prussia all warning would on the pg 240present occasion have been needless and therefore useless. The only forms of government against which any such warning presented a chance of being useful are those bad forms that have some good in them, and that one good form which has some bad in it. Among the bad forms which have some good in them have been mentioned the Spanish, the Portugueze and the English: the one good form that has a small sprinkling of bad in it is that of the Anglo-American United States.
So far as concerns the English Government (for Constitutional Code and therefore Constitution it has none) the books against which it may be of use that the Greeks should have warning are Montesquieu, Blackstone, and De l'Olme:1 of that pretended Constitution, the sort of colouring given to it considered, the several descriptions given in these several works may be termed the romance. Tacitly or expressly, one supposition pervades them all, namely that in the formation of the government in question the greatest happiness of the greatest number was the end really in view: the greatest happiness of those over whom and not the greatest happiness of those by whom the power is exercised: a sort of fact by the assumption of which they assumed that which neither ever has been, nor, consistently with the existence of the species, ever could have been, true. One only state of things is there in which it ever has been or ever can be true: and that is the state of things in which without material difference the persons by whom and the persons over whom the power is exercised are the same.2
To return to this same so-styled Executive Council and the positive mischiefs with which I see it pregnant. In it I see lodged, as per article 21, the power of location with relation to all the offices in the State: all the offices of course included to which either power or emolument in any shape jointly or separately are attached, as also the power of dislocation with relation to those same offices. To this same so-styled Executive Council is moreover given an uncontrolled negative upon every Legislative act proposed by the so-styled Legislative Senate. On the several Members of the Legislative Senate, a measure of confidence more or less considerable may not without just ground attach itself. For the several Members will have each of them his constituents, his patrons and superiors to whom as such, with a degree of effect proportioned to the value he sets upon their good opinion, good pg 241will, and good offices in all shapes, with or without such prospect as he may have or not have of continuance in such a situation as the case may be, he will feel himself responsible: for, the contrary not being said, what I take for granted, is—that to every thing that passes in this same Legislative Senate, with the exception of such temporary and partial concealment as it may be deemed necessary to give now and then to such parts of the business as shall on that account be assigned to Sittings denominated accordingly secret, whatever degree of publicity can be given, will be. On the other hand, in the situation of the so-styled Executive Council, with its number of Members no greater than 5, I see no such responsibility, consequently no such ground for confidence: on the contrary, but too strong a ground for complete distrust—a complete withholding of confidence. In them I see the Members of an everlastingly secret Conclave: a set of men engrossing in their own hands the whole of that power which is conferred by the uncontrolled disposal of the matter of good in all its shapes applicable in the character of matter of reward to the remuneration, which is as much as to say to the purchase, of service in all imaginable shapes to the aggregate of their several particular and sinister interests, at the expence and by the sacrifice of the universal interest. With the whole of this power in their hands, with the addition of a share in Legislative power equal to that of the body to which the appellation of Legislative Senate is exclusively attributed, I see them at work upon the appropriate moral aptitude—the political probity, of the several Members of the so-styled Legislative Senate: and, in the first place, upon the comparatively few to whom their preeminence in the faculty of public speaking will secure the leading share in the conduct of every part of the public business. For some time perhaps in the case of the majority, the value of his share in the universal interest may in the breast of each man outweigh the value of any particular and sinister interest by which he may be solicited to seek to gratify it1 at the expence of the universal interest. I mention this state of things that it may be seen not to have been overlooked: but it is not in the nature of man, especially of man in any such situation, that it should have place to any considerable extent for any long continuance. These halcyon days being at an end, what then is the state of things that follows them? It is one that gives birth to a league between the 5 Members of the so-styled Executive Council on the one part and the leading Members of the so-styled Legislative Senate on the other: a league for the conjunct advancement of their joint and several particular and sinister interests. Now then as to offices with emolument pg 242attached, what are the dictates of this same conjunct sinister interest? That which the sinister interest of the Members of the so-styled Executive Council dictates is, with respect to the offices with emolument attached, that the number of them and the quantity of emolument attached to each be as great, and on the other hand the quantity of time and labour necessary to be bestowed on each be as small, as possible. This, were it only that in this way they might each of them have in his hands in the most ample quantity the means of providing for his own favorites and dependents, especially for those for whom, had it not been for this means, he would have had to provide at his own expence. Exposed exactly to the same temptation is the probity of the Members, especially of the leading Members, of the so-styled Legislative Senate. But by no means can any one of them thus give advancement to his own share in the conjunct sinister interest otherwise than by giving to his suffrage and discourse the direction which will contribute, as above, to the advancement of the conjunct sinister interest of the Members of the so-styled Executive Council, and thus it is that by the conjunct influence of these confederated sinister interests, the Members of the community at large, and in particular those by whose labour the whole mass of the good things thus disposed of is produced, will be loaded with burden after burden, so long as their physical faculty of producing and giving up, or at least, so long as their faculty of enduring depredation and oppression with patience, remains unexhausted.
Such being the present evil, now then as to the applicable remedy. It is a very simple one. Take any single man—for example him whom you would otherwise have made President of this same so-styled Executive Council, give to him the whole of the patronage, with the exception of such parts of it as may, without preponderate inconvenience, be detached from his office on special grounds; place under him 4 other persons, for example the 4 other Members of that same Executive Council: giving to each his separate Department as above,a with more or less of the patronage belonging to it; you thus break down the phalanx: to every purpose legal as well as moral each one of them is now fully responsible for his own acts: the eye of the public bears fully and separately on the conduct of each.
Now then as to the 11 functionaries to whom, by article 86, I see given the whole of that power which, by article 85, is styled the Judicial power.1 If the power thus given to them, whatever it be, is pg 243exercised by them no otherwise than in conjunction, what has been said, as above, on the subject of the 5 Members composing the so-styled Executive Council will, so far as regards responsibility, be found applicable to them. By what means they are to come into such their situation—I mean in whose will or wills they are to behold the efficient cause of their possession of it, is more than I can see. By article 86, they are to be elected by the Government. But this word Government, what individual, what Body or what Bodies, were meant to be indicated by it? Not the Legislative Senate: to this Body no such appellation do I see any where attributed: not the so-styled Executive Council: for neither to this Body do I see that same appellation any where attributed. True it is that in article 21, of this Body it is said that it nominates to all the offices (emplois) of the Government. If therefore to the question, by whom are these 11 fractions of a Judge or of a Minister of Justice to be placed in such their situation? it were made necessary to find an answer, mine would be, by the Members of this same so-styled Executive Council.
But now comes to mind one of the 8 functionaries styled in Article 20th. Ministers, namely the Minister of Justice. As towards the functions committed to the joint exercise of these 11, what is the relation which the function this so-called Minister of Justice is intended to exercise bears?
As to the Minister of Justice, him I have work for, him I should be glad to keep, but as for these 11, unless it be for one of them somewhere in the character of Judge in a single-seated Judicatory, no one of these have I any work for: much rather would I give to each of them for doing nothing the whole of the emoluments intended for him, than for bearing his part in the business, whatever it may be, that was intended for the whole. As to the arrangement made in Article 1 in which the Judiciary power is designed and declared to be in a state of independence as well with relation to the Legislative power as with relation to the Executive power, such independence is in direct contrariety with my principle of absolute and universal dependence on the supreme power of the whole, as above.
But hereupon it becomes necessary I should proceed to state what the sort of arrangement is which I should propose to make with relation to the business of this department.
Now as to the plan I would propose for a Judiciary.
The whole territory of the state, say on the present occasion Greece, I would divide into Judicial Districts: the number, of course, not at present determinable: each such Judicial District into Judicial pg 244sub-districts, for the demarcation of which extent of territory and of population should conjunctly be taken into account.
For the sake of simplicity and uniformity, and for a further reason that will soon be visible, the limits of these several Judicial Districts should be the same as those of the several Election Districts, by each of which a Member is sent to the Legislative Senate. The limits of the several Judicial sub-districts may perhaps be the same with those of the several Election sub-districts into which it may be convenient that the Election districts be divided, for the purpose of collecting, at so many voting offices, the several parcels of votes, which are from thence to be transferred altogether to the Election district voting office, at which the aggregate number of the votes given in that district are collected, sorted, and counted. Whether, of any of these judicial sub-districts, there shall be any ulterior division into sub-subdistricts must remain to be determined by particular local considerations. For these Judicial districts, the only source of division I should employ is—the territorial; no such source as that which has so generally been employed, and which may be termed the logical or metaphysical; a source taken from the nature of the Judicial business done; no such division, for example, as that between civil and penal suits or causes, or that between civil and ecclesiastical suits or causes, between commercial and non-commercial suits or causes: no such division as that under English Law, and thence under the English-bred Law of some of the Anglo-American United States, between Law cases and Equity cases. Reason. From any such principle of division spring two great evils: one is, needless and useless addition to the number of Judicatories: the other is, in the case of this or that suit or cause, doubt and contestation [as] to the cognizance of which of two or more Judicatories it appertains. To this general rule, a few exceptions, but to no very considerable extent in the aggregate, will be of necessity suggested by the peculiar circumstances in which some classes of public functionaries find themselves placed. For example, in the land branch of the Military service, there will be certain classes of offences to which the power of the ordinary local Judicatories will not be found applicable; and so in the case of the Maritime branch of that same service. But it follows not that because, in these particular cases, it is necessary that offences belonging to these particular classes be withdrawn from the cognizance of the ordinary Judicatories, they should be so in any cases to which the necessity does not extend.
The boundaries, and thence the contents, of the several fields of Jurisdiction being thus settled, now as to the efficient causes of placement and displacement—of location and dislocation—as well as the pg 245number of the functionaries by whom the Judicial situations in those several fields of Jurisdiction shall be occupied.
As to number. In each Judicatory, one Judge and no more. Reason 1st. Responsibility thus alone entire: not fractionalized and thus dissipated, appropriate moral aptitude thus maximized. Reason 2d. Expence minimized. In England, there are single-seated Judicatories, there are four-seated Judicatories, and there are many-seated Judicatories. Those in which, all circumstances taken together, the business is regarded as being of the highest importance are of the single-seated class. Where there have been and are two Judicatories of concurrent jurisdiction, one a single-seated Judicatory, the Chancery—the other a four-seated Judicatory, the Court of Exchequer—the single-seated Judicatory, notwithstanding the two or three stages of appeal crowded into it, has at all times received much more business than the four-seated one, the Court of Exchequer. The Judicatory in which, at all times, the greatest liberties have been taken with the most obvious and indisputable rules of Justice, is that of the twelve great Judges, composed of the population of the three great Westminster Hall Courts.1 Not one of these functionaries would, in any single-seated Judicatory, have dared to deliver any such decisions as are so many of those in which all have joined, screened from the public eye by concealment, silence, and the delusive trappings with which he and his associates are bedecked. In Scotland, when there were fifteen of them sitting together in the highest Judicatory, it was still worse.2 In a word, the probability of good Judicature is everywhere not directly, but inversely, as the number of the Judges. Few moral rules have ever received so full a proof from experience.
In each Judicatory, efficient cause of location, the choice made, and will declared, by the Minister of Justice. Efficient cause of dislocation, votes to that effect by the majority of the Electors appertaining to the Judicial district or sub-district as above, as the case may be. This, without cause necessarily assigned. The Electors being, on each day after giving their votes on the occasion of the election of a representative in the Legislative Assembly, called upon to give their votes for or against the existing Judge, but not in favour of any other person in the character of a Candidate for that same situation. In case of a majority for displacement, obligation on the Minister of Justice to place another individual in that same Judicatory, but with power to place in any other Judicatory the so-displaced Judge. On the part of pg 246the Electors, no specific assigned cause for such displacement need be made necessary, but in the nature of the case no proposition to that effect could ever be made with any prospect of success without assigned causes in abundance. Power to the Minister of Justice to propose to any Judge at any time, and accept, his resignation, and upon refusal or silence to displace him, assigning or not assigning a specific cause or causes. Power to the so-displaced Judge to stand forth in public for the vindication of his character, and to contest the existence or the sufficiency, or both, of any causes so assigned. On this head some provisions of detail would be found requisite.
Reasons why the power of location should, in regard to all these Judicatories, be in the hand of a single person, the Minister of Justice:1 1. the object of the judicial system taken in the aggregate being to give and secure execution and effect to the whole body of the Law all over the territory of the state taken in the aggregate, one main business of the Minister of Justice will be, according to the measure of his ability, to secure consistency and symmetry in the plan and mode according to which such execution and effect is given or professed to be given in every such field of Jurisdiction throughout the state.
The power of displacement with reference to each such Judicatory being, as above, given to the majority of the Electors, why not, in preference to the Minister of Justice, give to that same body the power of placing likewise? Answer—1. after experience, in case of inaptitude, a body of that description may without difficulty be duly qualified for a decision declaring, in general terms, the existence of such inaptitude. Antecedently to such experience, no sufficient grounds for pronouncing a decision in affirmance of such aptitude can they have had. 2. In the case of an unapt choice, no sufficient responsibility would attach upon any individual in the character of a promoter of it. 3. For the sake of a chance of placing in so desirable a situation a confederate of his own, a leader having influence over the people might be apt to raise ungrounded clamour against a sufficiently apt Judge.
Question. Why when a Judge has thus been displaced by his justiciables—the electors—give the Minister of Justice the power of placing him in another district?
Answer. Because what may naturally enough happen is, that the conduct by which such displacement by a majority of the electors in the district in question has been produced has, though contrary to the particular interest or supposed interest of those same persons, been necessary to the support of the universal interest: for example the pg 247giving execution and effect to laws calling for sacrifices, by contributions in the shape of money, money's worth, or personal services, for the maintenance of the Government against its adversaries of all classes.
As the only effectual preventive of delay, power to every Judge to appoint Deputies in any number to sit at the same time with himself for the dispatch of business in different causes, but let no emolument be receivable by any such Deputy at the expence either of the public or of individuals. No doubt can be entertained of willingness on the part of a sufficient number of sufficiently apt individuals to undertake so honorable an office. The having served in such office might and should be made a necessary qualification for the being placed in the office of Judge. The choice thus proposed to be made of a Deputy should be declared to the parties and objections received. The principal Judge should not be sitting at home unoccupied while any such Deputy of his was sitting, for if such inaction were allowed two evils might follow: 1. to save his own reputation, a partial Judge might assign the function in this or that particular case to some connexion of one of the parties who for the sake of the profit, from partiality, would be content to submit to the disrepute: 2. the office of principal Judge might moreover be converted into a sinecure. In case of sickness such power of deputation is matter of absolute necessity.
To exclude partiality and all suspicion of it, it should be a declared object of endeavour to keep the Judge clear of all local connection in the way of interest or sympathy, hence it should be a general rule that no Judge should continue such in any one district for any long time, say for more [than] 3 years, nor be appointed Judge in any district in which he already has connexions of a certain description, to be specified; and his being known or suspected to have subsequently formed any such connexions may be stated as warrantable grounds for a proposition for his displacement as above, but no such connexion should be stated as a necessary efficient cause for his displacement, and provision might be made by means of which, in pursuance of a desire not much short of universal expressed by his justiciables, his continuance in that district might be prolonged.
As to the composition of the Jury, the exclusion of two evils, viz. partiality to the prejudice of the party in the right, vexation by attendance to the injury of the Jurors themselves, will be the leading ends in view. To secure a majority, the number should in every case be odd: less therefore than three it can not be. The greater the number more than three, the more extended the vexation. For securing impartiality, and thus far appropriate moral aptitude, not indeed to a certainty, that being impossible, but the best possible chance in favour of it, pg 248appointment by lot (provided the numbers of those included in the Lottery be sufficiently ample and indiscriminately taken) will suffice: for augmenting the chance of appropriate intellectual aptitude, viz. knowledge and judgment, the following course may be taken. The whole number of individuals in the district liable to serve as Jurors, divide into two classes—viz. the more erudite and the less erudite: for a Jury of three, take one from the more erudite class: to the influence of understanding on understanding, where moral inaptitude is not suspected, trust for his opinions being taken as a guide by his less erudite colleagues.
The class of persons in which it is desirable that Judges be chosen is that of Judge-deputes, as above—viz. such by which, in the discharge of that function, the highest degree of appropriate aptitude, in its several branches, has been manifested: the class of persons in which it is desirable that Judges should not be chosen is that of hireling advocates. In the breast of the hireling advocate, the chance of inaptitude, in that shape in which it is opposed to appropriate moral aptitude, is at its maximum: it amounts to a moral certainty. He lets himself out to hire indiscriminately to the party injured, or the injurer, to the guiltless man unjustly accused, or the malefactor, according as he happens to be retained: but it is uniformly on the side of the party in the wrong that his predilection ranges itself. In the party who, being in the wrong, is conscious of his being so, he looks for his best Customer; and, in case of success, the more flagrantly his client is in the wrong, the more illustrious the triumph of his advocate: the more conspicuous the proof afforded of the union of appropriate active with appropriate intellectual aptitude, with reference to the function of defeating the ends of Justice. Whatsoever falshood or insincerity in any other shape the advocate has occasion to defile himself with, the deluded public suffers him to scrape off from his own shoulders, and lay upon those of his client: his whole life is thereby a life of falshood and insincerity. Exclusions applied to the faculty of giving testimony, on the ground of moral inaptitude, are, if ever sincerely intended, a very foolishly devised instrument for avoidance of mendacity and thence of deception and injustice.
But if there were a sort of man on whom a note of eminent untrustworthiness should be put for the instruction and guidance of a Jury, it should be the hireling advocate. When the man, impregnated to the very marrow with the practice of mendacity and the love of injustice, is raised to the Judicial Bench, an appropriate masquerade dress is put upon him, and the silly and deluded multitude behold in him justice personified. Oftener has the black mare been rendered white by dipping, than the hireling advocate converted, by a seat on the Judicial pg 249Bench, into a lover of Justice. Every now and then in England passes the following scene. Advocate or Judge to witness—'Do you believe in the existence of a God?' Witness to Judge—'Yes'—Judge, thereupon, to Advocate—'Proceed with him, he is a good witness'—Advocate or Judge to Witness—'Do you believe in the existence of a God?'—Witness—'No': Judge—'Out with him: his testimony is not receivable'. Thus, then, if the Atheist will, to so indefensible a question, give a false answer, he is admitted: but if his regard for truth be such that he will not give a false answer, he is held out as an object of reproach—a man to whose testimony no regard can safely be given, and, as such, rejected. But to the man of habitual mendacity, any such man of conspicuously and painfully manifested veracity is an object of the deepest hatred and vengeance; and, to gratify this malignant passion, he scruples not to make sacrifice of the injured party whose misfortune it has been to have need of the testimony of this too veracious witness.
In a country in which a sort of imaginary law, called unwritten, and which has so much more writing belonging to it than that which is called written, has place, the choice made of Judges from the order of Advocates has an unhappily existing reason, adequate or inadequate, as well as a pretence. There being no rule of action really in existence, the hireling advocate is the only sort of man who can be regarded as an adept in the art of speaking of the case, whatever it be, in a manner that supposes the existence of a rule of action, and in the use of that jargon which has been employed in palming upon the public that fiction in the character of a truth. To him alone is sufficiently familiar that branch of the thieve's cant. The care of keeping on foot this disastrous reason, this unhappy necessity, is one cause of the care taken by the fraternity of Lawyers to keep the rule of action from ever receiving real existence. By the impossibility of defending himself, by his own powers, against those injuries which the fraternity are in league to inflict on him, a man is thus under the deplorable necessity of purchasing, at the ruinous price set upon it, their essentially treacherous assistance. Bonaparte, being a Despot, was, by the vigor of his mind, enabled to add to his vulgar triumphs two transcendental ones: triumphs over the two bitterest and most mischievous enemies of the human race—established priests and lawyers. Over the lawyer tribe, the main cause and token of his triumph was the establishment of a really-existing body of law, having for it's object not indeed the greatest happiness of the greatest number, but of the one, Napoleon Bonaparte: it sacrificed, wheresoever competition appeared to show itself, the interest of all to the interest of that one. But, had it been several times worse than it is, France would still have beheld and felt pg 250in it a matchless benefit.1 The Citizens of the Anglo-American United States have thrown off the yoke of a Monarchy, have thrown off the yoke of an Aristocracy, have many of them thrown off the yoke of an established priesthood. But the yoke of the hireling advocate still presses upon their necks: their courage has been sufficient to free them from the yoke of the English Monarch: but their wisdom has not yet been sufficient to liberate them from the yoke imposed upon them by the most corrupt and profligate of his tools.
Oh weakness! Oh inconsistency! You have given yourselves a rule of action accommodated to your own interests on the Constitutional branch of the field of Law; you leave it to your natural and irreconcileable enemies to plunder you under the cloak of an imaginary rule of action, imported from a foreign and enslaved country, a system of fiction accommodated to their own particular and sinister interests to the sacrifice of your's.
In every Judicial District, there will, in the most prosperous state of human nature, be but too many who, being by the inaptitude opposite to appropriate intellectual and appropriate active aptitude laid under an incapacity of giving adequate support to their own cause, even on the supposition of the justice of it, will be at the same time lying under the inability of finding, if ever, in sufficient time an adequate gratuitous advocate. For persons thus situated, there seems an indispensable necessity of providing a pair of official advocates, one for each side of the cause. Call the one, the pursuer's advocate general: call the other, the defender's advocate general. On the part of the Judge, no degree of appropriate aptitude in all its branches that in his place can be realized, or so much as imagined, can supersede altogether the demand for assistance in those other shapes. In causes of the simplest nature, yes: but in causes of a certain degree of complexity, no: in this or that instance, a necessity will arise for such communication and such arrangement of Documents as the time of the Judge could not suffice for. Moreover, the inexorable and predetermined impartiality of the Judge would scarcely be compatible with the reception of that unrestrained confidence of which the case of a party, how compleatly soever in the right, may occasionally have need. By the single-seatedness of every Judicatory as contrasted with the many-seatedness so generally established—by this single-seatedness, combined with the gratuitousness of the service rendered by deputies, room will be left for reconciling the allotment pg 251of sufficient salaries to these two subsidiary functionaries, with a reduction in the expence of the whole of the establishment, as compared with that with which it would be charged by hitherto-established usage. To these two functionaries should also be given the power of appointing unpaid deputies: neither in these situations, any more than in that of Judge, is man exempt from sickness. To the faculty of enlarging and contracting itself as need requires may be given the appellation of elasticity: needful as is this quality, never till Bentham wrote did any such conception as that of planting it in the Judicial Establishment enter into the head of any as yet known publicist.
Proper1 and only proper model of Judicial procedure, the domestic. For, in domestic procedure, there are no hireling advocates interested in the obstruction and defeat of the ends of justice. For the collection of evidence, powers which are not to be found in the domestic Judicatory will in many instances be necessary to the public Judicatory. These powers must of course be supplied. But in this supply lies almost the only difference requisite. In domestic procedure, the only natural procedure has its model. In every father, his children and his other servants, if he has any, behold their Judge. Contradistinguished in it's name, because opposite as to the ends to which the course of it has been directed, must be the course of procedure by far the most extensively as yet in use: call it the technical—such is the name by which, even by it's inventors, it has been characterized. For technical, say on any occasion unjust—you need not fear misnaming it.
Sittings uninterrupted. No day in the year exempt. On what day is Justice less necessary than another? On what day is injury inactive? What relaxation has the medical man? But to the Judge moderate relaxation might be given by allowing the substitution of a Deputy for a limited number of days. As to Deputy, see [above].2 Doors of the Judicatory constantly open to all visitants. Structure of it, specially adapted to the giving to the greatest number possible the best accommodation possible. Let such visitants be considered as a Committee of the public opinion tribunal appointed for the purpose of securing more or less responsibility on the part of the Judge: they may at the same time be considered as a Committee of the universal body of electors in whom resides the supreme power of the State—the constitutive. Let this be the spot in which the suitors waiting their turn to be heard in the several causes have their appointed station: power to all who pg 252choose to take notes and give publicity to them through the public Journals, subject to compensation in case of injurious falsehood through negligence or rashness, and moreover in case of mendacity to punishment. Whether in any and what cases a temporary concealment should be allowed is a consideration of subordinate importance and would require appropriate details.
In addition to all such casual and unofficial Inspectors, an official Committee of that same universally inspecting Tribunal—a constantly existing body of assessors to the Judge—should, under the name of a Jury, useful ideas having become associated with that name, be provided. Of this Jury the decision might either be obligatory, as according to present practice, on the Judge, or not. One great service will be rendered by it in either case: namely the imposing on the Judge a sort of moral necessity to lay open to the public ear the grounds of every thing that he does. For this reason the Jury should be in attendance whensoever the Judge himself is in attendance, for if the intentions of a Judge are evil, a single moment in which he acts by his own uncontrolled authority may suffice to deprive the party who is in the right of the benefit looked for at the hands of a Jury.
In Judicature, where there is no publicity, there is no justice: no tolerably adequate security for the giving due execution and effect to the laws, whatsoever they may be. That justice should have been the object where the doors of a Judicatory have been kept regularly closed is not possible. The object of the arrangement has been the sacrifice of the universal interest of all men in the character of justiciables, to the particular and sinister interest—either of the Judge, or of the despot, whose creature and instrument he is, or both together. Judicature has for it's only right and proper ends, these: main and positive end, giving execution and effect to the Laws, whatsoever they may be: collateral and negative ends, avoidance of all needless delay, expence, and vexation in other shapes: all needless delay is injustice while it lasts.
[III.]1 Unapt arrangements inserted in the Spanish Constitution, and not in the Grecian
In the first place stand all those articles by which power is lodged in the hands of a single individual in the situation of Monarch. To enumerate them would here be useless. The least mass of power that was ever given to a functionary, to whom that appellation was at the same time given, has always sufficed to place him in a state of incontestable and implacable hostility with the interest and greatest pg 253happiness of the greatest number of the members of which the community is composed. Money, power, factitious honor and dignity, faculty of gratifying the appetite for vengeance, faculty of enjoying the perfection of ease—whatsoever of the external instruments of felicity in any of these shapes happen to be conferred on that one individual at the expence of the greatest number, that which in actual felicity he gains bears no sort of proportion to what they lose. So much for the article of expence in the case of that form of government: now as to relative and appropriate aptitude, say appropriate moral aptitude, appropriate intellectual aptitude (knowledge and judgment included) and appropriate active aptitude. While the exercise of all the other functions of government is made dependent on the will of that one individual, there exists not so much as a single function for the exercise of which every individual in that so mischievously elevated situation is not, by that very situation and by that vast mass of the external instruments of felicity so heaped upon it, rendered, in an eminent degree, more flagrantly and unquestionably unapt than any other individual in the whole community would be found to be: supposing him not below par in respect of original intellectual power, nor destitute of those intellectual acquirements which in Scotland are obtained by men in the situation of day labourers. Thus it is, that in every Monarchy all the rest of the people are made victims to, and the sport of, the will of the very worst man among them—of a man who in every intelligible sense of the word worst is rendered so by the mere circumstance of being situated where he is.
As, in his eyes at least, his interest is sure to be, at all times, in a state of immutable opposition to the universal interest, so having [it] on every occasion of competition in his power to make sacrifice of the universal interest to his particular interest, and these occasions spreading over the whole field of government, so it is that he has for his constant and uninterrupted occupation what may be termed the making of the sinister sacrifice. By this same appellation let it accordingly be characterized. And note that the more enormous the quantity he possesses of the aggregate of those same instruments, the more craving and insatiable is his appetite for more and more. The more extensive the sinister sacrifice is which he has made, the more extensive is the ulterior sacrifice of the same kind which it is his wish and constant endeavour to make, so long as there is any thing as yet left unsacrificed. Think on this occasion of Napoleon Bonaparte. Think of the allied despots who have succeeded to all his bad qualities without any of his good. Think of those allied despots, not forgetting the one who was the avowed partaker of their wishes and endeavours pg 254though alas! the forms of his government did not admitt of his being in form a party to their holy league.1
Mahometan and Jewish Natives, First as to Mahometans.2 In relation to this part of the population, what is the most eligible course that can be taken: the government being supposed established in the hands of the Christian part?
To put them all to death surely can not be in contemplation: as little to export them all by force. In some number or other, absolute and relative, relative in relation to that of the Christians, they will continue in the territory of the State.
Here the first object or end in view is that which is dictated by Self-regarding prudence. Against hostility on their part, when reduced to the condition of subjects, every necessary precaution must of course be taken.
The next object or end in view is that which is dictated by Effective benevolence. Treat them with as much kindness as the indispensable regard for your own safety will permitt.
The more closely the matter is looked into, the greater will be seen to be the extent to which the dictates of effective benevolence will, in this instance, be found to coincide with those of self-regarding prudence.
Provided no Mahometan be admitted to a seat in the Legislative Assembly, or even if the multitude of seats capable of being filled by Mahometans were limited to a certain small number, so small as to be considerably short of being equal to the number filled by Christians, votes in the Election of Members of the Legislative Assembly need not be refused to them. Such of these Mahometan votes as could not be given in favour of Mahometans in the situation of candidates for seats in the Representative Assembly would, of course, be given to such Christian candidates as were regarded as being in the highest degree friendly to the Mahometan part of the population of the whole.
In this or that Election District, say even in any number of Election pg 255Districts, suppose the Mahometan votes to out-number the Christian, still no real inconvenience can ensue so long as in the Representative Assembly the non-Christians did not at any time out-number the Christians. If, however, any apprehensions on this score should notwithstanding be entertained, a very simple and inoffensive remedy might be provided; namely by making the age at which a Mahometan is permitted to vote, by any number of years that might be thought fit, more advanced than that at which a Christian is admitted to vote.
Strange it were, if by such treatment, the Mahometans were not rendered good Citizens. By the faculty of voting, even supposing no Mahometans were allowed to sit as Representatives, they would be raised to a situation high in dignity, as well as security, in comparison of the highest which any of them can occupy1 at present. To no Christian could in that case any Mahometan be, as such, an object of contempt.
In the mean time and until that happy change shall have been acknowledged to have taken place, one precaution is suggested by the indispensable care of self-defence. Of the Christian portion of the population the male part will, I take for granted, be trained, without any exception, in the military stile to the use of arms: trained, in the European form of military exercise, in the use of the musquet and the bayonet in companies and batallions. The operations performed in the course of this exercise being in their nature public, men of both portions of the circumcised race might, without the hardship of domestic inquisition, be interdicted from the right of taking part in any such exercise. They might even be interdicted from having fire-arms of the length of musquets in their possession. But, as to swords and pistols, these they might, it should seem, without danger have the liberty of keeping in their houses and wearing about their persons, in the character of instruments for self-defence. Arms capable of being carried in secret, and by that means used as instruments of aggression, such as daggers and pistols, might, such of them as were small enough to be kept concealed, be comprized in the interdiction.
In regard to marriage, there seems to be no reason why a man of this persuasion should in future be allowed to keep under the bonds of that contract any more women than one. In a limitation of this kind there will be no invasion of religious liberty. In the Koran the having more than one is not made matter of obligation: in a word the sort of pluralism in question is an injustice in which, even where Mahometanism reigns, a very small number of men are partakers in comparison of the whole. The first wife should accordingly while living pg 256be the only wife. Over any other woman whom a man might engage to live and cohabit with him, no power should be allowed to him.
So in regard to succession. For simplicity sake the plan of distribution applied to property upon the death of the possessor should be the same in the case of a Mahometan as in the case of a Christian. Neither in this would there be any invasion of religious liberty, so long as the power were left to a man of this persuasion to give to his property by his last will and testament that course, whatever it be, which is given to it by the Mahometan law.
Expenditure 1822 ...
Interest on debt ...
Net Receipt 1822 ...