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 II.

§ 1.

The Hobgoblin Argument, or, No Innovation!—(ad metum.)

Exposition.—The hobgoblin, the eventual appearance of which is denounced by this argument, is anarchy; which tremendous spectre has for its forerunner the monster innovation. The forms in which this monster may be denounced are as numerous and various as the sentences in which the word innovation can be placed.

“Here it comes!” exclaims the barbarous or unthinking servant in the hearing of the affrighted child, when, to rid herself of the burthen of attendance, such servant scruples not to employ an instrument of terror, the effects of which may continue during life. “Here it comes!” is the cry; and the hobgoblin is rendered but the more terrific by the suppression of its name.

Of a similar nature, and productive of similar effects, is the political device here exposed to view. As an instrument of deception, the device is generally accompanied by personalities of the vituperative kind:—imputation of bad motives, bad designs, bad conduct and character, &c. are ordinarily cast on the authors and advocates of the obnoxious measure; whilst the term employed is such as to beg the question in dispute. Thus, in the present instance, innovation means a bad change; presenting to the mind, besides the idea of a change, the proposition, either that change in general is a bad thing, or at least that the sort of change in question is a bad change.

Exposure.—All-comprehensiveness of the condemnation passed by this fallacy.

This is one of the many cases in which it is difficult to render the absurdity of the argument more glaring than it is upon the face of the argument itself.

Whatever reason it affords for looking upon the proposed measure, be it what it may, as about to be mischievous, it affords the same reason for entertaining the same opinion of everything that exists at present. To say all new things are bad, is as much as to say all things are bad—or, at any event, at their commencement: for of all the old things ever seen or heard of, there is not one that was not once new. Whatever is now establishment, was once innovation.

He who on this ground condemns a proposed measure, condemns, in the same breath, whatsoever he would be most averse to be thought to disapprove:—he condemns the Revolution, the Reformation, the assumption made by the House of Commons of a part in the penning of the laws in the reign of Henry VI., the institution of the House of Commons itself in the reign of Henry III.:—all these he bids us regard as sure forerunners of the monster anarchy, but particularly the birth and first efficient agency of the House of Commons—an innovation, in comparison of which all others, past or future, are for efficiency, and consequently mischievousness, but as grains of dust in the balance.

§ 2.

Apprehension of mischief from change—what foundation it has in truth.

A circumstance that gives a sort of colour to the use of this fallacy is, that it can scarcely ever be found without a certain degree of truth adhering to it. Supposing the change to be one which cannot be effected without the interposition of the legislature, even this circumstance is sufficient to attach to it a certain quantity of mischief. The words necessary to commit the change even to writing, cannot be put into that form without labour, importing a proportional quantity of vexation to the head employed in it; which labour and vexation, if paid for, is compensated by and productive of expense. When disseminated by the operation of the press, as it always must be before it can be productive of whatever effect is aimed at, it becomes productive of ulterior vexation and expense. Here, then, is so much unavoidable mischief, of which the most salutary and indispensable change cannot fail to be productive: to this natural and unavoidable portion of mischief, the additions that have been made, in the shape of factitious and avoidable mischief of the same kind, are such as have sufficient claim to notice, but to a notice not proper for this place.

Here, then, we have the minimum of mischief which accompanies every change; and in this minimum of mischief we have the minimum of truth with which this fallacy is accompanied, and which is sufficient to protect it against exposure, from a flat and undiscriminating demal.

It is seldom, however, that the whole of the mischief, with the corresponding portion of truth, is confined within such narrow bounds.

Wheresoever any portion, however great or small, of the aggregate mass of the objects of desire in any shape—matter of wealth, power, dignity, or even reputation—and whether in possession, or only in prospect, and that ever so remote and contingent—must, in consequence of the change, pass out of any hand or hands that are not willing to part with it, viz. either without compensation, or with no other than what, in their estimation, is insufficient;—here we have, in some shape or other, a quantity of vexation uncompensated—so much vexation, so much mischief beyond dispute.

But in one way or other, whether from the total omission of this or that item, or from the supposed inadequacy of the compensation given for it, or from its incapacity of being included in any estimate, as in case of remote and but weakly probable as well as contingent profits, it will not unfrequently happen that the compensation allotted in this case shall be inadequate, not only to the desires, but to the imagined rights of the party from whom the sacrifice is exacted. In so far as such insufficiency appears to himself to exist, he will feel himself urged by a motive, the force of which will be in proportion to the amount of such deficiency, to oppose the measure; and in so far as in his eyes such motive is fit to be displayed, it will constitute what in his language will be reason, and what will be received in that character by all other persons in whose estimate any such deficiency shall appear to exist. So far as any such deficiency is specifically alleged in the character of a reason, it forms a relevant and specific argument, and belongs not to the account of fallacies; and, if well founded, constitutes a just reason, if not for quashing the measure, at any rate for adding to the compensation thus shown to be deficient. And in this shape, viz. in that of a specific argument, will a man of course present his motive to view, if it be susceptible of it. But when the alleged damage and eventual injury will not, even in his own view of it, bear the test of inquiry, then, this specific argument failing him, he will betake himself to the general fallacy in lieu of it. He will set up the cry of Innovation! Innovation! hoping by this watchword to bring to his aid all whose sinister interest is connected with his own; and to engage them to say, and the unreflecting multitude to believe, that the change in question is of the number of those in which the mischief attached to it is not accompanied by a preponderant mass of advantage.

§ 3.

Time the innovator-general, a counter-fallacy.

Among the stories current in the profession of the law, is that of an attorney, who, when his client applied to him for relief against a forged bond, advised him, as the shortest and surest course, to forge a release.

Thus, as a shorter and surer course than that of attempting to make men sensible of the imposture, this fallacy has been every now and then met by what may be termed its counter-fallacy: Time itself is the archinnovator. The inference is, the proposed change, branded as it has thus been by the odious appellative of innovation, is in fact no change: its sole effect being either to prevent a change, or to bring the matter back to the good state in which it formerly was. This counter-fallacy, if such it may be termed, has not, however, any such pernicious properties or consequences attached to it as may be seen to be indicated by that name. Two circumstances, however, concur in giving it a just title to the appellation of a fallacy: one is, that it has no specific application to the particular measure in hand, and on that score may be set down as irrelevant; the other, that by a sort of implied concession and virtual admission, it gives colour and countenance to the fallacy to which it is opposed,—admitting by implication, that if the appellation of a change belonged with propriety to the proposed measure, it might on that single account with propriety be opposed.

A few words, then, are now sufficient to strip the mask from this fallacy. No specific mischief, as likely to result from the specific measure, is alleged; if it were, the argument would not belong to this head. What is alleged, is nothing more than that mischief, without regard to the amount, would be among the results of this measure. But this is no more than can be said of every legislative measure that ever did pass, or ever can pass. If, then, it be to be ranked with arguments, it is an argument that involves in one common condemnation all political measures whatsoever, past, present, and to come; it passes condemnation on whatsoever, in this way, ever has been, or ever can be done, in all places as well as in all times. Delivered from an humble station, from the mouth of an old woman beguiling by her gossip the labours of the spinning-wheel in her cottage, it might pass for simple and ordinary ignorance:—delivered from any such exalted station as that of a legislative house or judicial bench,—from such a quarter, if it can be regarded as sincere, it is a mark of drivelling rather than ignorance.

But it may be said—“My meaning is not to condemn all change—not to condemn all new institutions, all new laws, all new measures,—only violent and dangerous ones, such as that is which is now proposed.” The answer is: Neither drawing or attempting to draw any line, you do by this indiscriminating appellative pass condemnation on all change—on everything to which any such epithet as new can with propriety be applied. Draw any such line, and the reproach of insincerity or imbecility shall be withholden: draw your line; but remember, that whenever you do draw it, or so much as begin to draw it, you give up this your argument.

Alive to possible-imaginable evils, dead to actual ones—eagle-eyed to future contingent evils, blind and insensible to all existing ones,—such is the character of the mind, to which a fallacy such as this can really have presented itself in the character of an argument possessing any the smallest claim to notice. To such a mind,—that by denial and sale of justice, anarchy, in so far as concerns nine-tenths of the people, is actually by force of law established, and that it is only by the force of morality—of such morality as all the punishments denounced against sincerity, and all the reward applied for the encouragement of insincerity, have not been able to banish,—that society is kept together;—that to draw into question the fitness of great characters for their high situations, is in one man a crime, while to question their fitness, so that their motives remain unquestioned, is lawful to another;—that the crime called libel remains undefined and undistinguishable, and the liberty of the press is defined to be the absence of that security which would be afforded to writers by the establishment of a licenser;—that under a show of limitation, a government shall be in fact an absolute one, while pretended guardians are real accomplices, and at the nod of a king or a minister, by a regular trained body of votes, black shall be declared white—miscarriage, success—mortality, health—disgrace, honour—and notorious experienced imbecility, consummate skill;—to such a mind, these, with other evils boundless in extent and number, are either not seen to be in existence, or not felt to be such. In such a mind, the horror of innovation is as really a disease as any to which the body in which it is seated is exposed. And in proportion as a man is afflicted with it, he is the enemy of all good, which, how urgent soever may be the demand for it, remains as yet to be done; nor can he be said to be completely cured of it, till he shall have learnt to take, on each occasion, and without repugnance, general utility for the general end, and to judge of whatever is proposed, in the character of a means conducive to that end.

§ 4.

Sinister interests in which this fallacy has its source.

Could the wand of that magician be borrowed, at whose potent touch the emissaries of his wicked antagonist threw off their several disguises, and made instant confession of their real character and designs,—could a few of those ravens by whom the word innovation is uttered with a scream of horror, and the approach of the monster anarchy denounced,—be touched with it, we should then learn their real character and have the true import of these screams translated into intelligible language.

1. I am a lawyer (would one of them be heard to say,)—a fee-fed judge—who, considering that the money I lay up, the power I exercise, and the respect and reputation I enjoy, depend on the undiminished continuance of the abuses of the law, the factitious delay, vexation, and expense with which the few who have money enough to pay for a chance of justice are loaded, and by which the many who have not, are cut off from that chance,—take this method of deterring men from attempting to alleviate those torments in which my comforts have their source.

2. I am a sinecurist (cries another,) who being in the receipt of £38,000 a-year, public money, for doing nothing, and having no more wit than honesty, have never been able to open my mouth and pronounce any articulate sound for any other purpose,—yet, hearing a cry of “No sinecures!” am come to join in the shout of “No innovation! down with the innovators!” in hopes of drowning, by these defensive sounds, the offensive ones which chill my blood and make me tremble.

3. I am a contractor (cries a third,) who having bought my seat that I may sell my votes—and in return for them, being in the habit of obtaining with the most convenient regularity a succession of good jobs, foresee, in the prevalence of innovation, the destruction and the ruin of this established branch of trade.

4. I am a country gentleman (cries a fourth,) who observing that from having a seat in a certain assembly a man enjoys more respect than he did before, on the turf, in the dog-kennel, and in the stable, and having tenants and other dependents enough to seat me against their wills for a place in which I am detested, and hearing it said that if innovation were suffered to run on unopposed, elections would come in time to be as free in reality as they are in appearance and pretence,—have left for a day or two the cry of “Tally-ho!” and “Hark forward!” to join in the cry of “No Anarchy!” “No innovation!”

5. I am a priest (says a fifth,) who having proved the pope to be antichrist to the satisfaction of all orthodox divines whose piety prays for the cure of souls, or whose health has need of exoneration from the burthen of residence; and having read, in my edition of the Gospel, that the apostles lived in palaces, which innovation and anarchy would cut down to parsonage-houses; though grown hoarse by screaming out, “No reading!” “No writing!” “No Lancaster!” and “No popery!”—for fear of coming change, am here to add what remains of my voice to the full chorus of “No Anarchy!” “No Innovation!”