The Online Library of Liberty

A project of Liberty Fund, Inc.

• Principles of Judicial Procedure, With the Outlines of a Procedure Code.
• Note By the Editor.
• Preface.
• Introduction.
• Chapter I.: General View—ends of Judicature.
• Chapter II.: Ends Apt and Unapt.
• Chapter III.: Procedure—its Relation to the Rest of the Law.
• Chapter IV.: Judiciary Establishment.
• Chapter V.: Procedure—its Subject-matters.
• Chapter VI.: All-comprehensive Arrangements.
• Chapter VII.: Practical General Rules.
• Chapter VIII.: Judicial Application.
• Chapter IX.: Proxies.
• Chapter X.: Judicial Communication.
• Chapter XI.: Evidence.
• Chapter XII.: Initiatory Hearing.
• Chapter XIII.: Defence, How Elicited.
• Chapter XIV.: Suits, Their Sorts.
• Chapter XV.: Suits, Continuance Of.
• Chapter XVI.: Suits—termination.
• Chapter XVII.: Suits, Their Stages.
• Chapter XVIII.: Means of Execution.
• Chapter XIX.: Counter-security.
• Chapter XX.: Remedies,—compensation.
• Chapter XXI.: Judicial Transfer.
• Chapter XXII.: Prehension.
• Chapter XXIII.: Jury-trial.
• Chapter XXIV.: Special Juries.
• Chapter XXV.: Grand Juries.
• Chapter XXVI.: Quasi-jury.
• Chapter XXVII.: Recapitulatory Examination, Or Quasi-trial.
• Chapter XXVIII.: Appeal and Quasi-appeal.
• Chapter XXIX.: Natural and Technical Systems Compared.
• Appendix A.: Initial Sketch of the Procedure Code.
• Appendix B.: Account-taking Judicatories.
• Appendix C.: British India—jury System.
• From the Right Honourable Sir Alexander Johnston, to the Right Honourable Charles W. Williams Wynn, President of the Board of Controul.
• The Rationale of Reward.
• Advertisement By the Editor.
• Remarks By Mr. Bentham.
• Preliminary Observations.
• Book I.—: Of Rewards In General.
• Chapter I.: Definitions.
• Chapter II.: Matter of Reward—sources.
• Chapter III.: Of Reward and Punishment Combined.
• Chapter IV.: Of the Union of Interest With Duty, and of Self-executing Laws.
• Chapter V.: Matter of Reward—reasons For Husbanding.
• Chapter VI.: Remuneration Ex Post Facto.
• Chapter VII.: Punition and Remuneration—their Relations.
• Chapter VIII.: Remuneration—where Hurtful.
• Chapter IX.: Remuneration—where Needless.
• Chapter X.: Proportion As to Rewards.
• Chapter XI.: Choice As to Rewards.
• Chapter XII.: Procedure As to Rewards.
• Chapter XIII.: Rewards to Informers.
• Chapter XIV.: Rewards to Accomplices.
• Chapter XV.: Competition As to Rewards.
• Chapter XVI.: Rewards For Virtue.
• Chapter XVII.: Accompaniments to Remuneration.
• Book II.—: Rewards Applied to Offices.
• Chapter I.: Salary—how a Reward.
• Chapter II.: Rules As to Emoluments.
• Chapter III.: Fees and Perquisites—none.
• Chapter IV.: Minimize Emolument.
• Chapter V.: No More Nominal Than Real.
• Chapter VI.: Couple Burthen With Benefit.
• Chapter VII.: By Emoluments Exclude Corruption.
• Chapter VIII.: Give Pensions of Retreat.
• Chapter IX.: Of the Sale of Offices.
• Chapter X.: Of Qualifications.
• Chapter XI.: Of Trust and Contract Management.
• Chapter XII.: Of Reforms.
• Book III.—: Reward Applied to Art and Science.
• Chapter I.: Art and Science—divisions.
• Chapter II.: Art and Science—advancement.
• Chapter III.: Art and Science—diffusion.
• Appendix.
• Leading Principles of a Constitutional Code, For Any State.
• Section I.: Ends Aimed At.
• Section II.: Principal Means Employed For the Attainment of the Above Ends.
• Liberty of the Press, and Public Discussion.
• Advertisement.
• Jeremy Bentham to the Spanish People.
• Letter I.: On the Liberty of the Press—the Approaching Eight Months’ Sleep of the Cortes—and the Exclusion of Experience From the Succeeding Cortes.
• Letter II.: On the Liberty of Public Discussion In Free Meetings.
• Letter III.: On the Liberty of Public Discussion In Free Meetings—continuation From Letter II.
• Letter IV.: On the Liberty of Public Discussion In Free Meetings—continuation of the Subject From Letter III.
• An Essay On Political Tactics, Or Inquiries Concerning the Discipline and Mode of Proceeding Proper to Be Observed In Political Assemblies: Principally Applied to the Practice of the British Parliament, and to the Constitution and Situation of the Nati
• Chapter I.: General Considerations.
• Chapter II.: Of Publicity.
• Chapter III.: Of the Place of Meeting and Its Dependencies.
• Chapter IV.: Of What Concerns the Members Present At a Legislative Assembly.
• Chapter V.: Of the Presidents and Vice-presidents Belonging to Political Assemblies.
• Chapter VI. *: of the Mode of Proceeding In a Political Assembly In the Formation of Its Decisions.
• Chapter VII.: Of the Proposal of Measures For Adoption.
• Chapter VIII.: Of the Different Acts Which Enter Into the Formation of a Decree.
• Chapter IX.: Of the Promulgation of Motions—of Bills—of Amendments, and Their Withdrawment.
• Chapter X.: Of the Drawing Up of Laws.
• Chapter XI.: Of Debates.
• Chapter XII.: Of Amendments.
• Chapter XIII.: Of Dilatory Motions, Or Motions of Adjournment.
• Chapter XIV.: Of Voting.
• Chapter XV.: Of Committees.
• Chapter XVI.: Of Formulas.
• The Book of Fallacies: From Unfinished Papers of Jeremy Bentham. Edited By a Friend.
• Preface By the Editor of the Original Edition.
• The Book of Fallacies.: Introduction.
• Section I.: A Fallacy, What.
• Section II.: Fallacies, By Whom Treated of Heretofore.
• Section III.: Relation of Fallacies to Vulgar Errors.
• Section IV.: Political Fallacies the Subject of This Work.
• Section V.: Division Or Classification of Fallacies
• Section VI.: Nomenclature of Political Fallacies.
• Section VII.: Contrast Between the Present Work and Hamilton’s “parliamentary Logic.”
• Part I.: Fallacies of Authority, the Subject of Which Is Authority In Various Shapes, and the Object to Repress All Exercise of the Reasoning Faculty.
• Chapter I.
• Chapter II.: The Wisdom of Our Ancestors; Or Chinese Argument—( Ad Verecundiam. )
• Chapter III.: Fallacy of Irrevocable Laws.
• Chapter IV.: No-precedent Argument—( Ad Verecundiam. )
• Chapter V.
• Chapter VI.: Laudatory Personalities— (ad Amicitiam.)
• Part II.: Fallacies of Danger, the Subject-matter of Which Is Danger In Various Shapes, and the Object to Repress Discussion Altogether, By Exciting Alarm.
• Chapter I.: Vituperative Personalities— (ad Odium.)
• Chapter II.
• Chapter III.: Fallacy of Distrust, Or, What’s At the Bottom?—( Ad Metum. )
• Chapter IV.: Official Malefactor’s Screen—( Ad Metum. )
• Chapter V.: Accusation-scarer’s Device—( Ad Metum. )
• Part III.: Fallacies of Delay, the Subject-matter of Which Is Delay In Various Shapes—and the Object, to Postpone Discussion, With a View of Eluding It.
• Chapter I.: The Quietist, Or “no Complaint”—( Ad Quietem )
• Chapter II.: Fallacy of False Consolation— (ad Quietem.)
• Chapter III.: Procrastinator’s Argument ( Ad Socordiam. )
• Chapter IV.: Snail’s-pace Argument.—( Ad Socordiam. )
• Chapter V.: Fallacy of Artful Diversion—( Ad Verecundiam. )
• Part IV.: Fallacies of Confusion, the Object of Which Is, to Perplex, When Discussion Can No Longer Be Avoided.
• Chapter I.: Question-begging Appellatives—( Ad Judicium. )
• Chapter II.: Impostor Terms—( Ad Judicium. )
• Chapter III.: Vague Generalities—( Ad Judicium. )
• Chapter IV.: Allegorical Idols—( Ad Imaginationem. )
• Chapter V.: Sweeping Classifications—( Ad Judicium. )
• Chapter VI.: Sham Distinctions—( Ad Judicium. )
• Chapter VII.: Popular Corruption—( Ad Superbiam. )
• Chapter VIII.: Observations On the Seven Preceding Fallacies.
• Chapter IX.: Anti-rational Fallacies—( Ad Verecundiam. )
• Chapter X.: Paradoxical Assertion—( Ad Judicium. )
• Chapter XI. :non-causa Pro Causa: Or, Cause and Obstacle Confounded—( Ad Judicium. )
• Chapter XII.: Partiality-preacher’s Argument—( Ad Judicium. )
• Chapter XIII.: The End Justifies the Means—( Ad Judicium. )
• Chapter XIV.: Opposer-general’s Justification:—not Measures But Men; Or, Not Men But Measures—( Ad Invidiam. )
• Chapter XV.: Rejection Instead of Amendment—( Ad Judicium. )
• Part V
• Chapter I.: Characters Common to All These Fallacies.
• Chapter II.: Of the Mischief Producible By Fallacies.
• Chapter III.: Causes of the Utterance of These Fallacies.
• Chapter IV.: Second Cause—interest Begotten-prejudice.
• Chapter V.: Third Cause—authority-begotten Prejudice.
• Chapter VI.: Fourth Cause—self-defence Against Counter-fallacies.
• Chapter VII.: Use of These Fallacies to the Utterers and Acceptors of Them.
• Chapter VIII.: Particular Demand For Fallacies Under the English Constitution.
• Chapter IX.: The Demand For Political Fallacies:—how Created By the State of Interests.
• Chapter X.: Different Parts Which May Be Borne In Relation to Fallacies.
• Chapter XI.: Uses of the Preceding Exposure.
• Anarchical Fallacies; Being an Examination of the Declarations of Rights Issued During the French Revolution.
• Advertisement.
• An Examination of the Declaration of the Rights of the Man and the Citizen Decreed By the Constituent Assembly In France.
• Preamble.
• A Critical Examination of the Declaration of Rights.
• Declaration of the Rights and Duties of the Man and the Citizen, Anno 1795.
• Observations On Parts of the Declaration of Rights, As Proposed By Citizen Sieyes.
• Principles of International Law.
• Essay I.: Objects of International Law.
• Essay II.: Of Subjects, Or of the Personal Extent of the Dominion of the Laws.
• Essay III.: Of War, Considered In Respect of Its Causes and Consequences.
• Essay IV.: A Plan For an Universal and Perpetual Peace.
• Appendix. * —junctiana Proposal.
• A Protest Against Law-taxes, Showing the Peculiar Mischievousness of All Such Impositions As Add to the Expense of Appeal to Justice.
• Supply Without Burden; Or Escheat Vice Taxation: Being a Proposal For a Saving of Taxes By an Extension of the Law of Escheat, Including Strictures On the Taxes On Collateral Succession Comprised In the Budget of 7 Th December 1795.
• Preface.
• Section I.: General Idea.
• Section II.: Order of the Details.
• Section III.: Advantages.
• Section IV.: Originality.
• Section V.: Produce.
• Section VI.: Application.
• Section VII.: Heads of Objection, With Answers. †
• Section VIII.: Existing Law.
• Section IX.: Ancient Law.
• Section X.: Blackstone.
• Tax With Monopoly; Or Hints of Certain Cases In Which, In Alleviation of the Burden of Taxation, Exclusive Privileges May Be Given As Against Future Competitors, Without Producing Any of the Ill Effects, Which In Most Cases Are Inseparable From Everyth
• I.: Stock-brokers.
• II.: Bankers.

CHAPTER XVII.

SUITS, THEIR STAGES.

Stages of inquiry, three:—

I. Original inquiry.

II. Reiterated, recapitulatory, or quasi-jury inquiry.

III. Appellate inquiry.

These are the same in all cases. On each inquiry sittings and hearings in any number.

I. Original inquiry, its business. Judge, after hearings, pronounces his definitive decrees, opinative and imperative, and gives execution and effect, if there be no reiterated inquiry.

II. Reiterated inquiry, its efficient causes:

1. Judge’s spontaneous order.

2. On demand by pursuer.

3. On demand by defendant. Spontaneously he may order it; on demand, he must.

III. Appellate inquiry, its efficient cause, demand from either side.

1. Ordinary time, after definitive judication and before execution.

2. Extraordinary time, after interlocutory decree and before execution thereof: where, but for appeal, interlocutory might have the effect of definitive. Examples:—1. Undue delay; 2. Precipitation; 3. Exclusion of evidence.

I. Original inquiry. Initiatory application, if contentious, as on the occasion of a suit, commences by a public application to the judge, by some person as pursuer, or pursuer’s substitute; exceptions excepted, by pursuer.

If upon applicant’s own showing, no probable just cause of demand appearing, the suit is dismissed: vexation thus to none but applicant.

Causes for party’s non-attendance:—

1. His attendance is impracticable.

2. Preponderantly inconvenient.

3. Plainly useless or needless.

In case of falsehood, coupled with insincerity or temerity, applicant is responsible, as effectually as an extraneous witness. So every other actor on the judicial theatre.

Also for purposed insincerity or temerity, in respect of vexation to party, witness, judge, or any other actor.

Application if causeless, wanton, or malicious, a fine to helpless litigants, or say equal-justice fund.

Applicant may bring all or any witnesses, who may all be counter-interrogated.

Applicant, if, with or without other witnesses, he is unable to speak to a certain fact, but indicates one who could probably speak to it, but whom he could not bring,—judge, before dismission or retention, may convene the alleged probable witness; upon like indication of him, another, and so on, till through one or more such indicant witnesses, a percipient witness is found, whose evidence as such is employable.

In so far as the procedure takes this course, it is investigatorial.

Penal, the case in which such investigation is most in demand; but it may be in any case in which the importance will outweigh the vexation.

The first mutual attendance will be the defendant’s first attendance. Now may all parties bring all their evidences. Better so than not: for thus may matters be settled.

In this case will be the vast majority of suits. Examples:—

1. Small debts.

2. Trifling assaults.

3. Vituperative oral discourses, with or without others than the parties for witnesses.

4. Small detected thefts.

Be the case ever so complicated, here may generally be settled—

1. The law and facts in issue.

2. In relation to such evidences as have not been adduced, the persons and things to be sought, and their respective places.

By consent of all parties on the other side, on any attendance after the first, the presence of any party or parties may be dispensed with.

II. Inquiry recapitulatory, or quasi-jury inquiry. The case in which an apt judge will desire it, is where evidences which have been received separately as they could be obtained, require to be confronted. A case in which a party will desire it, is—where to the above use is added that of affording to any error of the judge the corrective applicable by the quasi-jury, with ulterior argumentation on the whole evidence. For the check applied by the quasi-jury, see Ch. XXVI. Quasi-Jury.

On this reiterated inquiry, it being recapitulatory, no evidence will be received that could have been produced during the original inquiry: to save time, by consent of parties, the re-exhibition of any lot of evidence may be omitted.

III. Inquiry appellate. Its efficient cause on either side,—dissatisfaction with judge’s decrees. Sense of exposure to it will be among his checks.

Evidence received here, none but what was received below.

Necessary costs, comparatively inconsiderable:—

1. Sole constant cost, the mere paper of the record.

2. Incidental cost, fees for argumentation by law practitioners.

Matter of the record,—statement of the whole proceedings, evidence included: of this, exemplars from 8 to 12 will have been written at the same time, by the same hand, by an invention in use. Saved thus will be,

1. Time, and expense of skilled labour in revising for correction.

2. Possibility of variances, thence of error.

Record transmitted by post. Expense imposed afterwards on the party in the wrong, if solvent.

Argumentative fees. Case requiring it, and respondent unable,—power to judge below, to defray the expense: to wit,

1. Exacting from appellant, in addition to fees for his own side, the equivalent for those on the other side: or,

2. Ordering money out of the helpless-litigants’ fund as above.

Power to judge appellate, to fine for undue appeal coupled with insincerity, temerity, or malice: fine for helpless-litigants’ fund.

On any inquiry, sittings and hearings may be in any number as above. Sittings refer to time—hearings to suit. Divers sittings may each be engrossed by one suit: divers sults may be dispatched in one sitting, each after one hearing.

Under this code, in each judicatory, in every day of the year, are two sittings: one a day, the other a night sitting.

Justice is as needful one day as another: in the dark part as in the light part. A judge can as easily officiate at night, as does a military officer, a watchman, or a man in any other night occupation. A watchman must keep awake: a judge need but be liable to be awakened.

So, out-door sittings as well as in-door. Jurymen on view are out-door. More trouble is now produced by the excursion of one judge than by that of twelve jurymen. Not but that here the judge carries a public with him; without a public, a judge is a tyrant under the name of a judge: always a tyrant; naturally a corruptionist.

A sitting is either of course, or appointed, or say by appointment:—

1. In course, the judge receives initiative application.

2. By appointment, in consequence of an order for attendance at a particular day and hour, to any person or persons after an initiatory application. Night sittings are never by appointment. Out-door-sittings mode of course.

Exceptions excepted, under this code, in all sittings and all hearings, publicity is maximized. For exceptions see Const. Code.

The stages of judicature might be thought here more numerous than expressed: an additional one is, to wit, as often as any part of a suit passes from one judge to another, particularly from a depute to the principal judge. This, however, is frequently matter of necessity in all systems.

Place does not change here as there; nor thence is the vexation of transition imposed on parties and witnesses. In general, where change has place, the original inquiry will be by a depute—the recapitulatory, i. e. the quasi-jury do, by the principal. Desirable it is, in proportion to complexity, intricacy, and importance, that by the judge who ultimately decides, all the evidence should have been heard, that the whole may have presented itself to him in the same shape, and that the best.

By the judge who extracted the viva voce evidence should the immediate decree, in as far as possible, be pronounced.

Under existing system, for avoidance of responsibility, judges several on the same bench: one of them elicits the evidence, whilst the others only pronounce the decree.

In this arrangement, profit the sole object attended to.