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1821. April 8th.
Constitutional Law has for its object security against
misrule: security against those adversaries of the community
to whom in whose instance while their situation bestows on them the denomination
of rulers, the use they made of it adds the adjunct evil
and thus denominates them evil rulers.
In a Code of Constitutional Law, it may fear arrangements of two
different complexions may be distinguished must have place: one set of the
nature of those belonging to the distributive or civil branch of law,
having for their occupation the distribution of the powers of
Government with the opposite and correspondent burthens:
the other set presenting a penal aspect: having for their
subject occupation the giving a description of a particular class of
crimes and of the arrangements employed against them
in the character of remedies. But that the thread may not
be interrupted, convenience recommends the placing those what belongs
to those corners, in company with what belongs to others, in the penal code.⊞
⊞ In the drawing up of
the penal code, is On
the occasion of ordinary
offences, the persons against
whose mischievous enterprizes,
the security is to
be afforded are individuals
at large. On the
occasion of this particular
class of crimes, to
individuals at large are considered in
added the character of
subjects, are added, or
substituted, individuals
considered in the character
of rulers. This delineation
the draughtsman
will occupied in drawing up the penal code
will at all times keep
in view. He will do the
like when occupied on
the Constitutional Code.
But for this purpose
it is not necessary that
of what belongs to these
matters should have its the place should
be in the Constitutional
Code. That between these
two branches parts of the Constitutional
scheme plan the
Civil and the Penal, the closest harmony should have place, is altogether necessary. But as the nature of design will necessitate the harmony, in the⊞1
⊞1 mind of the penman, cross references will evidence indicate
to the mind of the reader the existence of it. As to
reasons, such reasons as have for their object the explanation
and justification of the differences in the treatment course
given to evildoers taken with relation to evildoers of the two⊞2
⊞2 different descriptions, the Code in which they
may most naturally and conveniently find their place
is perhaps the Constitutional Code.
In the situation of a ruler, as such, no act that he
can committ, be it in ever so high a degree mischievous,
wears the denomination of a crime: King, or by what other
denomination designated, a ruler can do no wrong. For
the same evil act which, if committed by a subject, would be
wrong, becomes, by the mere circumstances of its being committed
by a ruler, – becomes not wrong, but right.
So far as it wears the complexion of penal law, constitutional
law has these two for its distinguishable and contrasted
objects: first, the ordering matters so that those who, to some
purposes and on some occasions, occupy the situation of rulers,
shall, in respect of their conduct in that and other situations,
be liable to be dealt with in the character of offenders
delinquents, criminals: 2. the ordering matters so that for to the acts done
necess in resistance to, or for prevention of, misrule, and thence productive
of more good than evil – to such acts, of whatever penal denomination they
may appear susceptible, no such punishment, if any, shall be allotted as
might, with propriety, be allotted to them, if the application of them to the prevention of misrule had place.
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john flowerdew colls |
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