The Online Library of Liberty

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• 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 XI.

OF TRUST AND CONTRACT MANAGEMENT.

The capacity of the individuals to discharge the duties required of them having been ascertained, and the most intimate connexion between their interest and the discharge of these duties having been established, the only desirable circumstance remaining is to reduce the amount of the emoluments to be paid for the discharge of these duties to the lowest term. Suppose the amount expended in the purchase of a given service to be a certain sum, and that an individual equally capable of rendering this service, should offer to render it at less expense: is there any good reason for refusing such an offer? I can discover none. The acceptance of such a proposition is the acceptance of a contract: the service thus agreed to be performed, is said to be contracted for, or let to farm. To this method, the mode of obtaining services by employing commissioners and managers, is opposed.

General reasonings upon this subject are insufficient to determine which of these two opposite systems will be most advantageous in any particular department: the nature of the service must be ascertained, before the question can be decided.

If we confine ourselves to general principles, contracts must be preferred to commissions. Under the system of contracts, the interests about which the individual is employed are his own; whilst, under the system of commissions, the interests about which he is employed remain the interests of the state; that is, the interests of another. In the first case, the sub-functionaries employed are the servants of an individual; in the other, they are the servants of the public—fellow-servants of those who are to watch over them. “But the servants of the most negligent master,” says Adam Smith, “are better superintended than the servants of the most vigilant sovereign.” If this cannot be admitted as an infallible rule, it is at least more frequently true than otherwise.

Public opinion is, however, but little favourable to the system of contracts. The savings which result to the state are forgotten, whilst the profits reaped by the farmers are recollected and exaggerated. Upon this subject, the ignorant and the philosopher—those who judge without thought, and those who pretend to have examined the subject—are nearly agreed. The objections which they bring forward against contractors (for they relate to individuals rather than to the system) are sufficiently specious.

I. The contractors are rich. If they are so, this is not the fault of the system, but of the conditions of the bargain made with them.

II. The contractors are ostentatious and vain. And if they burst with vanity, what then? Such inappreciable, or rather imaginary evils, cannot be brought into political calculations. Their vanity will find a sufficient counterpoise and punishment in the vanity of those whom they incommode, whilst their ostentation will distribute their wealth among those whom it employs.

III. The contractors excite envy. This is the fault of those who are envious, and not of the contractors: it is another imaginary evil, in opposition to which may be placed the pleasure of detraction. Besides, if the contracts are open to all, unless improvident bargains are made through favour, corruption, or ignorance, rapid fortunes will not often be accumulated by contractors: should they still become rich, it will be because they have deserved it.

IV. Contractors never find the laws too severe to insure the collection of the taxes for which they have contracted. They will procure severe and sanguinary laws to be enacted. If the laws are severe and sanguinary, the legislature is in fault, and not the contractors. Whether the taxes are managed by contractors or commissioners, it is equally proper that the most efficacious system of laws for their collection should be established; and certainly severe and sanguinary laws are not the most efficacious. Contractors, therefore, are not likely to seek the enactment of the most severe laws: there are many reasons for supposing the contrary will be the case. The better the law is executed, that is to say, the more certainly punishment follows the transgression of the law, the less severe need it be. But under the inspection of the contractor, who has so strong an interest in its execution, the law has a better chance of being put in execution, than when under the inspection of a commissioner who has so little, if any, interest in the matter. Upon this point it is impossible to imagine by what means two interests can be more intimately connected, than those of the contractor and the state. It is the interest of the contractor that all who illegally evade the payment of the taxes should be punished: this also is the interest of the state. But it can never be the interest of the contractor to punish the innocent: this would tend to excite the whole people against him. Of every species of injustice, this is one which is least likely to meet with tranquil and acquiescent spectators.

Adam Smith, who has adopted all these objections, little calculated as they seem to me to appear in such a work as his, also contends that “the best and most frugal way of levying a tax, can never be by farm.”* If this were true, it would be a conclusive reason against ever letting taxes to farm, and it would be useless to seek for others. When a fact is proved, it is useless to trouble one’sself with prejudices and probabilities.

It is true, that without the hope of gain, no contractor would undertake to collect the produce of a tax, and to make the advances required. But whence ought the profit of the farmer to rise? This is what Adam Smith has not examined. He supposes that the state would make the same profit, by establishing an administration under its own inspection. The truth of this supposition is altogether doubtful. The personal interest of a minister is to have as many individuals, that is to say, as many dependants, employed under him as possible—that their salaries should be as large as possible; and he will lose nothing by their negligence. The interest of the farmer, or contractor, is to have as few individuals employed under him as possible, and to pay each one no more than he deserves; and he will lose by every instance of their negligence. In these circumstances, though no greater amount should be received from the people than would have been collected by the state, a contractor might reasonably hope to find a source of profit.

Adam Smith has attacked, with as much force as reason, the popular prejudices against the dealers in corn, so odious and so much suspected under the name of forestallers. He has shown that the interest of the public is most intimately connected with the natural, and almost necessary, interests of this suspected class of merchants. He might with equal justice have extended his protection to farmers of the public revenue, a class of men nearly as little beloved.

In every branch of politics, and especially in so wide a field as his subject embraced, it was nearly impossible that he should examine everything with his own eyes: it was almost of necessity that he was sometimes guided by general opinion. This seems to me to have happened upon this occasion. He forgot in this instance to apply the principle already cited, and of which he had elsewhere made such beautiful applications. I had myself once written an essay against farmers of the revenue; I have thrown it into the fire, for which alone it was fit. I know not how long I should have retained the opinions it advocated, had I not been better instructed by Adam Smith.

Note.—In Burgoyne’s “Picture of Spain,” vol. ii. page 4, &c. it is stated, that in that country, trust was found more economical than contract management. But he does not state in what manner contracts were granted: whether favour or corruption did not preside at their disposal; whether the trust management had not superior means of enforcing the payment of the taxes; nor whether their increased produce was not, in part at least, owing to the increase of trade and wealth.

[* ]Wealth of Nations, book v. ch. ii.