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 IX.

OF THE PROMULGATION OF MOTIONS—OF BILLS—OF AMENDMENTS, AND THEIR WITHDRAWMENT.

It is proper that the assembly should previously have before its eyes a statement of the business with which it is to be engaged, that nothing may be left to chance, and that it may not be exposed to surprises. It ought to impose on all who wish to present any motions to it, the obligation of duly preparing them, and making them known. A discussion, the object of which has been previously made known, will be the result of more deliberation, and consequently shorter: the reasons for and against, having been the subjects of ineditation, the debaters will have ascertained their strength, and taken up their positions accordingly.

This object may be accomplished by a single regulation. Let the secretary open three distinct registers—for Motions, Bills or projects of laws, and Amendments; every member being allowed to present to him a motion to be registered; and all motions, after having been printed in a journal which should only have this object, should come before the assembly in the order in which they are registered, subject to the reservation of which we shall presently speak.

The journal of motions being published daily, those who wish to propose any amendments should be bound to make them known beforehand, by presenting them to the secretary, who should transcribe them in his register, and cause them to be printed in the journal of amendments.

The same steps should be followed with respect to bills: they should be inserted in a separate register, in the order of their presentation; but they ought not to be introduced into the assembly until three months after their inscription, unless upon special application this period should be shortened.

Such ought to be the foundation of the arrangement for the table of occupations, which might be called, as in the British houses of parliament, The order of the day.

But this inflexible order for motions and bills, this arrangement founded only upon the circumstance of anterior registration of accidental priority, would be liable to the most weighty inconveniences; it might prove destructive of real order, of that order which belongs to the train and connexion of matters, and thus prove incompatible with the liberty of the assembly. Because one motion has been placed upon the list before another, it does not follow that it deserves the preference: the last in date may be the first in importance.

It would even be impracticable to subject all motions to an absolute rule requiring previous registration. Unexpected incidents demand sudden measures; and in the course of its discussion, a subject may assume altogether a different appearance; a change made in one part of a project, may require an alteration in another—an unexpcted breach must be repaired by sudden expedients.

The influence of a list of motions is therefore reduced to this:—it would serve as a guide for the ordinary progress of the debates—it would present a general picture of the labours; but it would not restrain the liberty of the assembly, which ought to be able at any time to accelerate certain motions, or to receive new ones which have not been registered.

What has been said respecting motions is equally applicable to bills: but a bill admits of greater delay than a motion; and an interval of three months would not in general be too great between the presentation of a bill to the assembly, and its passing into a law. If it have been possible to do without a given law during the course of past ages, it is possible to do without it at least three months longer. Besides, as soon as a law is proposed, the whole of the nation is more or less interested: the object is permanent; it ought therefore to be known to the public, and all the information possessed by the different parties in the kingdom ought to be collected concerning it; unless it be pretended that the deputies, by a miraculous concentration, not only possess all the judgment and knowledge of the whole nation, but even of the world itself. Laws ought to be founded upon facts; but inasmuch as the facts are particular, they cannot be collected, unless the necessary time be allowed to the parties interested to present them to the legislators.

But in respect of bills as well as motions, an inflexible rule is not required: latitude must be left for unforeseen cases, and especially in favour of the government, which is charged to provide for urgent circumstances. If after an insurrection, or on the eve of an invasion, an interval of three months were required after introducing a bill before it were passed into a law, the evil might have been consummated before it was possible to consider of the remedy. This would be to play the engines when the fire was extinguished.

It may be remarked, that the plan here proposed differs from that of the English parliament, every member having here the right to introduce a bill; whereas in the English parliament a bill cannot be introduced without leave given by the House—a practice well calculated for preventing the consumption of time upon frivolous or dangerous projects of laws: but when a member moves for leave to introduce a bill, the House must consider whether it will admit or reject it. This power which it now exercises upon the motion, I propose that it should exercise over the bill at the moment in which it will be presented; that is to say, that the assembly should then decide whether it will entertain it or not; because it will then decide upon better grounds, as the bill will then have been published.

It is sometimes the custom that bills should be printed before the debate; but this is not the case except upon special motion, which motion is sometimes rejected;—and, when printed, they are only distributed to members of parliament. In this respect there is a fundamental error: the printing ought to be the rule, and also the public sale of such bills. Before the invention of printing, and when the art of reading was unknown to three-fourths of the deputies of the nation, to supply this deficiency, it was directed that every bill should be read three times in the House. At the present day, these three readings are purely nominal: the clerk confines himself to reading the title and the first words. But a most important effect has resulted from this antique regulation. These three readings have served to mark three distinct degrees—three epochs—in the passing of a bill, at each of which the debate upon it may be recommenced at pleasure.

Motions and bills being thus printed and published in journals destined to these objects alone, a regulation should be made, that amendments should be printed and published in the same manner. Why should they not be? If I wish to oppose a motion, ought my intention to come upon the assembly by surprise?—ought its author to be deprived of the knowledge of my objections, and of leisure to prepare an answer to them?—ought I to be allowed to take advantage of him by an unforeseen attack? If I am only anxious for the success of my own schemes, the unforeseen amendment will best suit my purpose; but if I only desire the success of reason, I ought to make it known before the debate.

If all the amendments are previously published, and presented all together, the assembly will have before its eyes a complete picture of the subject of discussion—a picture which will itself be a safeguard against the inconsistencies and contradictions which are so likely to be introduced into a composition of which all the parts are only considered successively. The more completely it is possible to present them simultaneously, the less is the exposure to this danger. This is the grand advantage of synoptic tables: the reciprocal dependence and union of all the parts is at once perceived: any incoherence strikes the eyes.

But the rule ought not to extend to the exclusion of amendments arising at the moment; for new ideas may spring out of the debate itself, and to reject a salutary amendment because its author had not foreseen it, would be an absurdity. All that can, and all that ought to be required of him, is to declare that the delay in the announcement of this amendment was not intentional—is not insidious; that he did not intend to take the assembly by surprise. The nature even of the amendment will indicate the motive which gave rise to it.*

When a member has caused a motion, a bill, an amendment, to be inscribed in the register, he should not be allowed to withdraw or abandon it, without leave from the assembly. A simple prohibition alone is not sufficient in this respect: it ought to be an inflexible law. If the author of the act in question be not present on the day fixed, to support it—unless there be lawful reason for absence, he ought to incur the censure of the assembly, and his name should be inscribed in a separate book, having for its title, List of the deserters of motions, &c.

This rigorous law is requisite—1. In order to prevent thoughtless motions, and the confusion which would be produced by the false appearance of a great mass of business which would vanish at the moment in which it was touched.

2. To prevent the destruction of public confidence by accustoming the people to see that the motions which are announced are dropped by neglect.

3. To prevent the abuse which might be made of this instrument by announcing motions which there is no intention to support, either for the purpose of spreading alarm, or to affect the public funds; or for the purpose of preventing other parties from registering their motions or their bills, by an apparent monopoly of business; and because the evil which an individual could effect in this respect would be susceptible of the most alarming extension by means of combination among the members of a party.

[* ]If it be necessary that motions should be composed beforehand, in order that they may be presented to the legislature, which is composed of the élite of the nation,—for a much stronger reason is this precaution indispensable with regard to popular assemblies, which are formed and dissolved in a day, and which can have little or no practice in the art of debate.

Such assemblies often take place in towns or counties in England, for the purpose of presenting petitions or addresses, either to the King or the Houses of Parliament.

If in these assemblies an individual propose a petition or address previously prepared, his antagonists seldom fail to draw from this circumstance an argument in its disfavour. There is indeed a term of ridicule for the designation of such previously prepared motions; they are called pocket motions and pocket petitions. By these terms an intention is imputed to their author of surprising and deceiving the assembly, by causing his own personal ideas to be received as a public act.

There is in this suspicion a mixture of reason and error—of inadvertence and reflection.

The inadvertence consists in not considering that a motion, which is to be the act of all, must begin by being the act of one individual,—and that a writing of this kind, as well as every other writing, ought to be the better, precisely because it is the work of time and reflection.

But, on the other hand, it is an instinct of reason to distrust the ascendency which one individual may obtain over an assembly by proposing a measure which he had prepared at leisure, but upon which the assembly is called to decide at once, without having had time to examine its foundations and consequences.

What follows? Ought no one in a popular assembly to propose any motion previously prepared? This certainly ought not to be the rule,—but the rather, that before the day of assembly, the motions intended to be made ought to be published.

There exist, in some assemblies of this kind, regulations which prohibit their convocation without a public declaration of the object of the meeting. This regulation ought to be universal; and there ought to be added to it, as a necessary condition, that the principal motion in its totality should be annexed to the act of convocation; that there should be a sufficient interval to allow of the publication of rival propositions, and that no motion should be presented to such assemblies, which had not been previously made known to the public. Will it be said, these are fetters and stumbling-stones for freedom. This would be a mistake: they are parapets upon the edge of precipices. Everything which renders reflection and order necessary in the proceedings of a free people is the assured safeguard of their rights.