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 XXVIII.

APPEAL AND QUASI-APPEAL.

§ 1.

Appeal and Quasi-appeal, what?

Appeal is where, a definitive imperative decree having been pronounced by a judge-immediate, application is made by a party to a judge-appellate, requesting him to reverse or modify it.

Quasi-appeal is where, by the judge-immediate no definitive imperative decree has been as yet made; but by something which has been done, or omitted to be done by the judge-immediate, such effects have been produced as that, in disfavour of the quasi-appellant, the same effect has been, or is about to be produced, as would have been produced by a correspondent imperative decree.

A quasi-appeal is therefore a petition praying for relief, in a case in which by relative inaction, that is to say, for the want of some appropriate decree, and execution and effect thereto given, the quasi-appellant has suffered, and is suffering, a wrong to the same effect as if an imperative decree in his disfavour had been issued and executed.

If by relative inaction, the effect of a positive decree in disfavour of a party is produced, it will be by means of the want of forthcomingness on the part of some thing or things, person or persons, either to the purpose of justiciability, or to the purpose of evidence.

If it be for want of forthcomingness for the purpose of evidence, the justificative cause of complaint will be because, had the piece of evidence in question been forthcoming, it would either of itself or in conjunction with some other piece or pieces of evidence, have been at once sufficient to form an adequate ground for the definitive decree, which, on the side of the party in question, it is the object of the suit, or the defence, to obtain from the judge.

If it be for the want of forthcomingness for the purpose of justiciability, it will be because, had the thing or the person in question been forthcoming, execution and effect might in a certain shape have been given to a decree in favour of the party by whom it was prayed for in the course of his pursuit, or his defence, as the case may be; whereas for want of it, neither in that same shape nor in any other adequate to it, could such execution and effect be given to such decree, if issued.

Of forthcomingness on the part of persons and things, for the purpose of justiciability, examples are as follows:—

1. Production of a person within the physical power of the judge for the purpose of his being eventually placed within the physical power of a party: of the person of a wife, for the purpose of her being placed under the physical power of her husband: of a child, under the physical power of his or her father, or other guardian.

2. Production of a thing claimed by a pursuer for the purpose of its being placed under the physical power of such pursuer: production of a mass of property belonging to a defendant, for the purpose of its being sold in the way of auction, by an appropriate functionary of justice, to the end that the produce of the sale may be delivered by him to the pursuer, in satisfaction for a debt due to him from the defendant.

If for want of such dispatch as could have been and ought to have been given by the judge immediate, irreparable injury, by want of forthcomingness of some person or some thing (whether for the purpose of evidence or for the purpose of justiciability,) is produced, such judge is responsible, non-penally, or even penally, or in both ways, as the case may be.

Of incidents whereby forthcomingness, which in regard to a thing necessary as a means of satisfaction or of punishment, or of evidence, might within the proper time have been effected, but which by the lapse of that same time has been rendered impossible, examples are as follows:—

1. Expatriation—the thing carried out of the power of the whole judicial establishment, as well as of the particular judicatory in question.

2. Latentey—the place in which the thing is, unknown; namely, to those whose knowledge of the place where it is, is necessary to the forthcomingness of it.

3. Deperition.

4. Relative deterioration.

Of occurrences whereby as a means with relation to the like effect relative forthcomingness in the instance of a person may have been rendered impossible, examples are as follows:—

1. Expatriation.

2. Latentcy.

3. Insolvency.

4. Death.

5. Relative deperition or deterioration of appropriate faculties.

In so far as it is in the character of a source of evidence that the thing or the person might and would have been made to minister to the purposes of justice—to rectitude of decision, in the case in question, the causation of non-forthcomingness has the effect of suppression of evidence; suppression, of which on one side the effect may have been the same as forgery of evidence—namely, as forgery of evidence having with the same force the opposite tendency.

§ 2.

Grounds for quasi-appeal.

Necessary to the actual execution of any ordinance of the law, in conjunction with the means of proof, the means of execution, and the means of appropriate communication on the part of all pursuers, on whom the result depends,—are the disposition and the power to employ them to that purpose with effect. Suppose these requisites, all of them to have place—you suppose the effect to have place: suppose any one of them not to have place—you suppose the effect not to have place.

By delay, by what cause soever produced, whether by purely physical agency, or human agency; if by human agency, whether avoidable or unavoidable; and if unavoidable, whether with or without blame,—the effect of misdecision may in any one of these cases alike be capable of being produced. In so far as it is unavoidable, there is nothing to be done—in so far as it is avoidable, thereupon devolves upon the legislator the care of preventing it: of preventing it, and in so far as blame is attached to the existence of it, punishing it in an effectual manner.

By precipitation, the shapes in which the effect of misdecision, ultimate or antecedent, is also produced, are as follows:—

All the several modes in which, as above, it is producible by delay. For suppose, for example, an ultimate decision pronounced at a time when either the requisite means of proof or disproof that could have been employed, have not been employed, or some necessary means of execution, which, but for this promptitude of the decision, might have been employed, have failed to be employed: in this case likewise; the decision pronounced will either be misdecision, or be productive of the same effect as if misdecision had had place: an effect opposite to that which would have had place, had due execution been given to the law, may in consequence have had place.

In comparison with delay, promptitude has the advantage of not being, as delay essentially is, productive of vexation and expense, in addition to misdecision or the evil effect of it.

On the other hand, instances occur, in which by precipitation, misdecision, actual or more or less probable, is capable of being produced, in cases in which delay is scarcely of itself capable of being productive of the like effect.

Cases may on any sort of occasion have place, in which, to the rendering of a right decision, and consequently to the avoidance of misdecision, one or both of two things for the guidance of decision are necessary. These are—

1. Argumentation; hearing or reading from the lips or pens of others, such observations, whether on the question of law, or on the question of fact, as may be necessary to the placing the matter of fact or the matter of law in a clear light.

2. Consideration; which is, in effect, an operation of the same sort as that of argumentation, with only this difference, that the mind of the judge is the only seat of it.

A ground for a quasi-appeal, is any act affirmative or negative, on the part of the judge below,—any act affirmative or negative, the effect of which is or would be to place the quasi-appellant in the same situation as if an undue definitive decree in his disfavour had been issued and executed, or but for the remedy demanded by the quasi-appellant, would be.

Referable to one or other of the heads following, is every judicial act having the effect of misdecision:—

1. Denial, declared or virtual, of means of proof; to wit, either in the aggregate, or in the instance of some one understood, and assignable means or article of evidence.

2. Denial, declared or virtual, of some means of execution actual or eventual, in possession or in expectancy.

3. Denial, declared or virtual, of some means of communication necessary to the obtainment of some means of proof, or of some means of execution or acquittal in time for the purpose.

4. Denial, declared or virtual, of means of defence, actual or eventual, in possession or expectancy.

5. Undue delay, whereby the obtainment of some means of proof in appropriate time, or of some means of execution, actual or eventual, in a direct way, or by withholding of some means of communication, is prevented or unduly retarded.

6. Undue precipitation, whereby the obtainment or use of some means of proof, execution, or communication as above, or of some means of elucidation in the way of argument, is prevented.

Wrong, in these its several shapes, has its correspondent remedy, which, if the quasi-appeal be well grounded, it belongs to the appellate judicatory to apply: as also to each such remedy, its correspondent petition or demand.

1. For denial of means of proof: remedy, imperative decree, ordering supply of means of proof, in the shape belonging to the nature of the case, and determined by the appellate judge, either in exact compliance with the terms of the demand made by the quasi-appellant, or in conformity to his own more or less different views of what the case requires, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of proof.

2. For denial of means of execution: remedy, imperative decree, ordering supply of means of execution, in the shape belonging to the nature of the case, and determined by the appellate judge, either in exact conformity with the terms of the demand made by the quasi-appellant, or in conformity to his own more or less different views of what the case requires, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of execution.

3. For denial of means of communication; remedy, imperative decree, ordering supply of the means of communication, in the shape belonging to the nature of the case, and determined by the appellate judge, either in exact compliance with the terms of the demand made by the quasi-appellant, or in conformity to his own more or less different views of what the case requires, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of communication.

4. For denial of means of defence: remedy, imperative decree, ordering supply of means of proof, or means of judicial assistance, for the purpose of information, advice, or argument, in the shape belonging to the nature of the case, and determined by the judge-appellate, either in exact compliance with the terms of the demand made by the quasi-appellant, or in conformity with his own more or less different views of the case, as expressed in his correspondent opinative decree. Name of the correspondent demand,—Petition for supply of means of defence.

5. For undue delay, whereby timely obtainment of means of proof or execution, or means of acquittal or defence, may have been prevented; and on the pursuer’s side execution, and on the defendant’s side acquittal, are at any rate retarded:—remedy, imperative decree, ordering dispatch, either in exact compliance with the terms of the demand, or in conformity with the more or less different views of what the case requires, as expressed in the correspondent opinative decree. Name of the correspondent demand,—Petition for dispatch.

6. For undue precipitation, whereby obtainment of means of proof, means of execution, means of communication, means of elucidation by argument, or means of acquittal or defence, have or may have been definitively or temporarily prevented,—Petition for reversal, with such particular remedy as the case may require.

In a certain case, over and above vexation and expense by delay, the effect of misdecision may be produced. This is when the period within which a means needful, and of itself, in conjunction with other means, sufficient to give execution and effect to the portion of law in question, might have been obtained, has been suffered to elapse: rectitude of decision is thereby rendered impossible, and misdecision is made to take its place. Say for shortness,—through delay, misdecision necessitated; or, through delay, right decision impossibilitated.

Of other competent grounds for a quasi-appeal, examples are as follows:—

1. Non-allowance of the faculty of taking a transcript of the record, or of so much as to constitute a sufficient ground for his petition.

2. Out of the record, omission of some particular which ought to have been inserted.

3. In the record, insertion of some portion of discourse not conformable to the truth.

4. In the record, substitution of some portion of discourse not conformable to truth, to some portion of discourse conformable to truth which ought to have been contained in it.

5. Insertion given in the record to matter irrelevant, or otherwise immaterial, whereby to the labour or expense of transcription a needless addition has been made.

In each of the above cases, the mischief from the wrong will of course depend upon its effect on the issue of the suit. In so far as things can be placed in the same state as they would have been in had the wrong not been done,—to place them in that state will be the appropriate remedy: in so far as this cannot be done, compensation at the expense of the wrong-doer, and of all concerned in the doing of the wrong, will be the remedy required.

The provision here made supposes, that the relief here allowed to be prayed for at the hands of the appellate judge, has in substance been denied by the immediate judge.

The hearing before the quasi-jury is the stage at which, if at any, arguments in form, with or without professional advocates, are heard.

If on any occasion the decision of the judge fails of being acceptable to a party on either side, that is the stage at which he prefers to the appellate judicatory an appeal, or a quasi-appeal.

The quasi-appeal is, as has been seen, a petition in any one of the six forms just mentioned. It is called a quasi-appeal, because though not in any one of those instances what has been commonly understood by the word appeal, yet in every one of them, the effect which it seeks to produce is the same as that which (in the case of success) is produced by it;—the remedy producing in favour of the complainant an effect which is the opposite of that which would have been produced by the alleged grievance complained of.

Of everything that passed, as well on the original examination as on the recapitulative examination (if being granted, it take place), minutes will be to be taken on this occasion, as on the others, by the registrar: so likewise may they by any and every person so disposed.

In this case, they may eventually form a ground of accusation against the judge, either before the justice-minister, or before the public-opinion tribunal, with a view to eventual dislocation, as per Chap. XXII.—Appellate Judicatories, Constitutional Code.

If by reason of non-compliance with a petition for a supply either of means of proof or means of execution,—misdecision or non-decision, misexecution or non-execution, shall have taken place, the judge by whose default misdecision or the equivalent of it shall have taken place, is responsible compensationally, or even punitionally, by decision of the justice-minister, if such failure has had evil consciousness or rashness for its accompaniment.

§ 3.

Uses of Appeal.

What is the use of appeal? If judges who act in the first instance are subject to error—are liable to be deficient in appropriate aptitude—so are those who act in the second instance: and from the mere circumstance of their being set to work after the first, what ground can you have for the expectation of a higher degree of aptitude on the part of the second?

Answer: The use is, that one set of judges may have another to stand in awe of—a set in whose instance, if on any occasion it happens to him who acts in the first instance to be actuated by sinister interest, in whatever shape (love of ease included,) there will be another who, by the love of power as well as the sense of obligation, will be naturally disposed to correct his errors.

The purpose might therefore be in a main degree answered, if the functions were reversed: the immediate judges made appellate only, and the appellate judges made immediate only.

Hence one reason why immediate jurisdiction should not be given to appellate judges; for if it were, there would be none of whom they would stand in awe.

From immediate judges, arbitrary power is taken away, by the setting of appellate judges over their heads.

From appellate judges, arbitrary power is taken away by their not having the initiative; and because, if they make any undue alteration in the decrees pronounced by the immediate judges, there stand already those same decrees, with their respective reasons, constituting a standard by which the operations of the appellate judges will be tried by the public-opinion tribunal, as the operations of the immediate judicatory have been by the appellate.

When once it is established that there ought to be two sets of judicatories, one above another, it is better that those who have had most experience should sit in judgment over those who have had the least, than those who have had the least, over those who have had the most. But rather than there should not be two different sets, those of one set sitting in judgment over the acts of those who have acted in the first instance, it were better that appeal should in particular cases go from the appellate to the immediate judicatories, than that there should be no appeal from the appellate—than that there should be any judge whose proceedings there should be no other judge to take cognizance of, with a power of eventual correction.

Not having had the advantage of hearing the orally extracted evidence, while the immediate judge has had that faculty, the appellate judge is empowered, it may be observed, to reverse the decree of the immediate judge in respect of the matter of fact, although his means of coming at the truth are so much less efficient: and as the public-opinion tribunal at large is so circumstanced as not to have the possibility of availing itself of those superior means, any more than the appellate, to whom those means are denied, why not leave the power of determining the fate of the cause in the hands of those whose means for forming a right judgment are so much superior to any that can be employed either by the judge above, or by the ultimate superiors of the highest grade—the possessors of the constitutive authority, in their character of members of the public-opinion tribunal?

Answer: The least important advantage must yield to the most important. A check applied by superordinate authority to a power which would otherwise be arbitrary (placing everything dear to man in the hands of an unchecked functionary or set of functionaries,) is a security too indispensable to be foregone on any account whatever. The advantage, from vesting the power of deciding on the question of fact in the hands of the same individual by whom the evidence in relation to it has been received and collected, would be indeed a very considerable advantage; but in point of importance, this cannot enter into competition with the other. In all probability, this advantageous union will have had place in the great majority of the whole number of instances; only comparatively in a small proportion, will appeal have place; and of those cases in which it has place, only in a very small proportion will the appellate judge think fit to substitute his opinion to that of a judge whose means of judging the whole matter have been to such a degree more instructive than his. In this case, it is not for what he is likely to do,—it is only for what it will be seen that in case of necessity he has it in his power to do,—that the faculty of undoing what the immediate judge has done, is put into his hands.

By the public-opinion tribunal the exercise of a power thus extraordinary, is not likely to be left unwatched. The party in whose disfavour it is exercised, is not likely to be backward in complaining of any abuse, with which in his opinion it can be made chargeable.

In all the cases in which power is given to the appellate judge, of reversing the decrees of the immediate judge, on the ground of the evidence as it stands upon the record, power is also given to him to send the question of fact to be tried over again in a neighbouring judicatory: the orally extracted evidence, (which is the only sort of evidence to which the question applies) to be there extracted anew—such of it as remains still obtainable. This option, in case of his disapproving of the decrees below, it will be naturally expected that he should embrace, where the importance of the suit is such as to warrant the additional expense; and it is manifest how considerable the reduction is which will require to be made from this source, from the number of instances in which the decrees of the original judicatory are likely to undergo material change.

Number of cases in which appeal may be made, say 100; of these, the number in which the decree below undergoes alteration in consideration of the opinion formed on the question of fact, 10: of these ten, the number of those in which, without sending the question to another trial, reversal or other material alteration takes place, two. What is the consequence? Answer: That notwithstanding the power of reversal lodged in the appellate judicatory, the fate of the suit is decided, in 24 instances out of 25, by the immediate judge.

If the union in question is to such a degree beneficial as above supposed, the more beneficial it is, and is seen to be, the greater will be the degree of confidence reposed by the public-opinion tribunal in a decree passed by a judge by whom this advantage has been possessed, as compared with that reposed in the decree of a judge by whom this same advantage has not been possessed. Thus, then, the strength of the check rises in proportion to the demand for the application of it.

The greater the extent to which the public-opinion tribunal keeps itself in accordance with the opinion expressed by the decrees of the judiciary establishment, the more perfectly will the system of procedure fulfil the ends of its institution.

If, instead of committing the second trial to another judicatory, the appellate judge had the power of receiving and extracting the orally delivered evidence in his own person, and to decide in dernier resort on the ground of the evidence so collected and extracted, his power would thereby be unchecked and arbitrary as above; there being no other authorized to reverse or modify it. But suppose the second trial to be by another judge immediate, the decree of the second judge immediate would, in the same manner as that of the first, be subjected to reversal or modification at the hands of another judge, namely, the judge appellate, and thus saved from the charge of arbitrariness.

Stages of appeal, why not more than one? Answer: Because by a single one, the beneficial effects above mentioned are secured: and by every additional stage, the evil opposite to the collateral ends of justice would receive vast increase, while to the obtainment of the direct ends of justice no additional probability would be given.

Question: Why allow modification or reversal of the decree of the judge-appellate in case of his being actually punished, and not otherwise?

Answer: Because if the decree might be reversed or modified without the judge’s being actually punished, criminality would be imputed by the appellant as a matter of course, for the mere purpose of obtaining the right of appeal; and by wrongdoers in possession, frequently for no other purpose than that of increase of delay, vexation, and expense.

Question: Why not allow the appellate judicatory to have for its decrees any other ground than what has been afforded by the record of the proceedings of the immediate judicatory?—why not allow it to examine fresh evidence?

Answer:—1. The proper point of view for the appellate judicatory to contemplate the evidence and other proceedings in, is that in which alone the public-opinion tribunal can contemplate them.

2. Only from such evidence and grounds as he had before him, can the appellate form any just conception of the conduct of the immediate judge.

3. If the case be such, that subsequently to the decrees of the immediate judicatory, fresh evidence impugning the decree has come to light, it is to the immediate judicatory that it ought to be presented, and not to the appellate. If presented to the appellate, without passing through the immediate, the evidence would not have the benefit of an examination before a quasi-jury.

If it is for want of evidence that might and should have been contributed to and received by the immediate judicatory, that a supposed misdecision has taken place, the remedy that should be applied is a petition to the immediate judicatory—a petition for supply of evidence; of which petition, the denial forms a ground for quasi-appeal.

§ 4.

Proceedings before the Appellant Judge.

On the occasion of a petition for a supply of evidence, the party gives indication of the source from whence the evidence is desired, and states the terms in which it is his desire that the appropriate imperative decree should be expressed; adding, in case of non-compliance, a petition for the hearing of the former petition before a quasi-jury.

On the occasion of a petition for securing eventual forthcomingness of means of execution, the party gives indication of—1. The existence of the objects; or, 2. The articles in question, with their general description; 3. The necessity of apt arrangements for securing their eventual forthcomingness; and, 4. The terms in which it is his desire that the appropriate imperative decree shall be expressed; adding, in case of non-compliance, a petition for hearing as above, before a quasi-jury.

On the occasion of a petition for a recapitulatory hearing before a quasi-jury, appointment is prayed of a day and time on which the hearing shall have place.

On the occasion of a petition for dispatch, the party gives indication of each particular operation or set of operations which it is his desire to see performed, and states the terms in which it is his desire that the imperative decree for the performance of it shall stand expressed; adding, in case of non-compliance, a petition for hearing as above, before a quasi-jury.

On the occasion of a petition for right execution, he states the particulars in which the execution given to the imperative decree in question has failed of being conformable to it; adding, in case of non-compliance, petition for hearing before a quasi-jury.

On the occasion of a petition for execution, he states the time and manner in which it is his desire the execution should be performed; adding, in case of non-compliance, petition for a hearing before a quasi-jury.

At the time appointed for argumentation, the official respondent on the appellant’s side declares whether he does or does not see any objection to the decision appealed from: if he does not, the decision is confirmed, unless the appellate judge of himself sees any sufficient specific ground, which he declares accordingly, for reversal or modification: if the declaration of the official respondent be in the affirmative, he thereupon states his objections, and argues in support of them; and upon hearing the argumentation on both sides, the judge appellate decides.

If on either side the party, or any substitute, professional or non-professional, deputed by him, appears and argues, the duty of the official respondent does not take place on that side.

In a penal suit, if the appellant, being the defendant, is not in a state of incarceration, he is at liberty to repair to the appellate judicatory, and make representation in his own person, as well as in the person of a substitute, professional or non-professional.

So, if he is in a state of incarceration, on paying the expense of conveyance in custody, unless his case be of the number of those in which, to warrant appeal, the fiat of the quasi-jury is necessary: neither in this case is he transferred to the appellate judicatory, unless for such transference a separate fiat from the quasi-jury be granted.

In a penal suit, if the decision of the immediate judicatory be simply confirmed without modification, to prevent undue delay, and on the part of the pursuer groundless vexation and expense, the defendant will be liable to additional punishment as of course; but with power to the judge-appellate to remit it in the whole or in part, for specific cause assigned. In regard to the quantum of such punishment in the several cases, provision will be made elsewhere. On this occasion, the minimum of that which will suffice for the prevention of insincere appeals is all that will be appointed.

In every case alike, where the quasi-appeal is regarded as groundless, or not sufficiently grounded, the appellate judge issues his opinative decree, Quasi-appeal (naming it;) to wit, Petition for supply of means of proof, for means of execution, &c., groundless, or not sufficiently grounded. Terms of the imperative decree addressed to the judge below. Proceed to execution, or proceed to acquittal; as the case may be.

If, from what appears on the face of the record, the nature of the case is such, that wrong in one or more of the above shapes having been committed, the appellate judge can see what is the proper issue of the suit, he declares as much, and decrees accordingly; giving such definitive decree as might have been given had the definitive decree been pronounced by the immediate judicatory in disfavour of the party wronged, and an appeal made against it in consequence.

If no such conception can be obtained, he declares so much by his opinative decree, and by an imperative decree orders a new quasi-trial, if that can afford a remedy, in the same judicatory or another, as seems to him most apt.

In any case, for injury in whatever shape produced by the wrong, he orders compensation.

§ 5.

Checks.

Except as to the differences resulting from difference of situation, the checks applied to conduct, and thence the several securities established against misconduct, in the case of the immediate, have place in the case of the appellate judge.

These differences are as follows:—

In the case of the judge-appellate, to the security afforded by the obligation on the part of the judge-immediate principal to have served in the capacity of judge-immediate depute, is added that of having served in the capacity of judge-immediate principal.

Modified in the case of the judge-appellate, is the check applied in the case of the judge-immediate, by the attendance of law students in the visitors’ gallery. Antecedently to the admission to practise in the appellate judicatory, to the five years of attendance requisite to admission to practise in the immediate judicatory, are added [NA] months and no more, of attendance in the appellate judicatory.

In the case of a judge-appellate, the check which, in the case of a judge-immediate, as applied to the virtual appeal from a judge without a jury, to a judge in the name judicatory with a jury, cannot have place a judge-appellate not hearing anything without a jury.

In the case of an appellate judicatory, the check applied by appeal to a superior judicatory has no place: except in the case in which the part allotted in ordinary cases to an immediate, is performed by the appellate judicatory, such as that of a complaint, of the number of those registered in the incidental complaint-book. In this case, from the decrees of the appellate judicatory, appeal lies to the justice-minister.*

To the situation of judge-appellate, the check applied to the situation of judge immediate, by his dislocability by the judge-appellate, is obviously excluded by the nature of the case.

As to dislocation: dislocable is an appellate judge, not by the electors of any subdistrict, but by those of the district or assemblage of districts over which his local field of service extends.

There follows, as to undue delay, a check not applicable to the case of an immediate judicatory. If within a certain length of time after receipt of the record, no decree has by the appellate judicatory been pronounced, the decrees of the immediate judicatory are thereupon understood to be confirmed: and if, after receipt of notice given of the lapse of the interval to the registrar of the appellate judicatory, and due time, to wit [NA] days, allowed for inhibition therefrom, no such inhibition has been received, execution is forthwith given by the immediate judge to his decree.

So, if in the mean time application for argumentation has been publicly made to the judge-appellate by a party on either side, and the faculty of argumentation has been refused, namely, directly or virtually, by non-appointment of day and hour, or by omitting to hear argumentation after appointment,—to the registrar it belongs to make entry thereof on the record, antecedently to re-transmission made as above.

So, if to application publicly begun to be made, the judge-appellate should refuse ulterior audience. Such refusal would moreover be a punishable offence, and might be denounced as such to the justice-minister, and thereby to the public-opinion tribunal, to pave the way for eventual dislocation.

§ 6.

Options of Judge-appellate as to Judge-immediate.

On view of the record, after entry made of his decrees opinative and imperative, in relation to the suit brought before him, whether in the way of appeal or in that of quasi-appeal, the judge-appellate will subjoin an opinative decree on the subject of the conduct of the judge below. The options given to him on these particulars are expressed in the words which follow:—

1. Judgment supposed erroneous, as expressed,—in respect of intention, conduct blameless.

2. Judgment supposed erroneous, as expressed,—mind supposed not sufficiently attentive: follows a statement, declaring the passages in which this opinion has had its ground.

3. Decree erroneous, as expressed. Suspicion is entertained of a deficiency in respect of appropriate aptitude, stating in which branch, moral, intellectual, or active, as the case may be: follows a statement, declaring the passages in which the opinion has had its ground.

If the last of those options be embraced, the judge-appellate transmits the record, or a transcript thereof, to the justice minister, who thereupon acts as per Chap. XXII. Constitutional Code.

§ 7.

Evidence discovered after ultimate decrees, how far producible.

In relation to any matter of fact, what may sometimes happen is, that after a suit instituted and terminated, evidence transpires, by which, had it been received in time, decrees opposite to those by which the suit has been terminated would have been pronounced. In such cases, the proper judicatory to apply to is the judicatory in which the suit has been so terminated. But in such a case, exceptions excepted, the judge will not grant and appoint a fresh recapitulatory quasi trial, unless, upon examination of the party applying, he is satisfied, that of the evidence in question the party had not, antecedently to the utterance of the definitive decrees in question, any knowledge.

Exceptions are as follows:—

1. Where, though at the time in question he did not either tender or require the extraction of the evidence in question, he gave indication of the existence of it—the non-production of it having for its cause the conception of the adequacy of the mass of evidence actually adduced, coupled with the desire of avoiding the delay, vexation, and expense inseparable from the production of it, and the persuasion of the non-necessity of it as above.

2. Where, antecedently to the termination of the suit as above, the existence of a certain article of evidence material to the corroboration of an article of newly discovered evidence, was known; but the newly discovered evidence itself not being known, the materiality of it could not be then known,—the reason for giving indication of it had not place therefore at that time.

Examples of such demand for subsequently and accidentally-discovered evidence, are as follows:—

1. Field of law the non-penal branch.—Subject-matter of suit, aggregate mass of the property of a person recently deceased:—Ground of decision, testament of a certain date:—fresh evidence subsequently discovered, a testament of posterior date, in the custody of a person whose existence or chief abode was not at the termination of the suit known to the party on whose behalf the fresh examination is required.

2. Field of law the penal branch.—Defendant in a penal suit for homicide:—quasi-trial, after recapitulatory examination, and by appropriate decrees opinative and imperative, acquitted. Evidence the existence of which was neither known nor suspected, afterwards comes to light. Examples:—

1. The defendant, in contemplation of death, smitten by remorse, confesses, but recants.

2. In a fit of drunkenness, or in his sleep, defendant utters particulars which lead to the discovery of evidence, the existence of which had not been suspected.

3. Habiliments, or other goods known to have been the property of the deceased, are discovered in the possession of the defendant: or the dead body, or the skeleton, known by some peculiar marks to have belonged to the deceased.

4. An individual who, in relation to the transaction, by which the death was occasioned, had been an eye-witness; or in relation to some fact probatively operating as an article of circumstantial evidence, returns from beyond sea, and makes known what he saw.

§ 8.

Security against undue punishment of an irreparable nature.

Without express confirmation by the appellate judicatory and the justice-minister, no imperative decree, ordering, under the name of punishment or otherwise, irreparable change in bodily condition, shall be considered as intended to receive execution. Examples of such change are the following:—

1. Mortal punishment.

2. Mutilation: loss of the substance, or use of a portion or organ of the body.

3. Stigmatization: understand, when performed in such manner that the effect shall be indelible.

4. In the case of a female, defloration: as where, on the termination of a suit, antecedently to known consummation, a female is ordered to be delivered into the power of a man adjudged to be her husband.

For the completion of the list, see the non-penal and penal Codes.

[* ]Of this case, exemplifications, it is obvious, if ever they occur, will in all probability be extremely rare.