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 II.

IMPOSTOR TERMS—(ad judicium.)

Exposition.—The fallacy which consists in the employment of impostor terms, in some respects resembles that which has been exposed in the preceding chapter; but it is applied chiefly to the defence of things, which under their proper name are manifestly indefensible. Instead, therefore, of speaking of such things under their proper name, the sophist has recourse to some appellative, which, along with the indefensible object, includes some other—generally an object of favour; or at once substitutes an object of approbation for an object of censure. For instance, persecutors in matters of religion have no such word as persecution in their vocabulary: zeal is the word by which they characterize all their actions.

In the employment of this fallacy, two things are requisite:—

1. A fact or circumstance, which, under its proper name, and seen in its true colours, would be an object of censure, and which, therefore, it is necessary to disguise:—(res tegenda.)

2. The appellative which the sophist employs to conceal what would be deemed offensive, or even to bespeak a degree of favour for it by the aid of some happier accessary:—(tegumen.)†

Exposure.—Example: Influence of the Crown.—The sinister influence of the crown is an object which, if expressed by any peculiar and distinctive appellation, would, comparatively speaking, find perhaps but few defenders; but which, so long as no other denomination is employed for the designation of it than the generic term influence, will rarety meet with indiscriminating reprobation.

Corruption,—the term which, in the eyes of those to whom this species of influence is an object of disapprobation, is the appropriate and only single-worded term capable of being employed for the expression of it—is a term of the dyslogistic cast. This, then, by any person whose meaning it is not to join in the condemnation passed on the practice or state of things which is designated, is one that cannot possibly be employed. In speaking of this practice and state of things, he is therefore obliged to go upon the look-out, and find some term, which, at the same time that its claim to the capacity of presenting to view the object in question cannot be contested, shall be of the eulogistic or at least of the neutral cast; and to one or other of these classes belongs the term influence.

Under the term influence, when the crown is considered as the possessor of it, are included two species of influence: the one of them such, that the removal of it could not, without an utter reprobation of the monarchical form of government, be by any person considered as desirable, nor, without the utter destruction of monarchical government, be considered as possible;—the other such—that in the opinion of many persons, the complete destruction or removal of it would, if possible, be desirable,—and that, though consistently with the continuance of the monarchical government, the complete removal of it would not be practicable, yet the diminution of it to such a degree as that the remainder should not be productive of any practically pernicious effects would not be impracticable.

Influence of will on will—influence of understanding on understanding: in this may be seen the distinction on which the utility or noxiousness of the sort of influence in question depends.

In the influence of understanding on understanding, may be seen that influence to which, by whomsoever exercised, on whomsoever exercised, and on what occasion soever exercised, the freest range ought to be left—left, although, as for instance, exercised by the crown, and on the representatives of the people. Not that to this influence it may not happen to be productive of mischief to any amount; but that because without this influence scarce any good could be accomplished, and because, when it is left free, disorder cannot present itself without leaving the door open at least for the entrance of the remedy.

The influence of understanding on understanding is, in a word, no other than the influence of human reason—a guide which, like other guides, is liable to miss its way, or dishonestly to recommend a wrong course, but which is the only guide of which the nature of the case is susceptible.

Under the British constitution, to the crown belongs either the sole management, or a principal and leading part of the management of the public business: and it is only by the influence of understanding on understanding, or by the influence of will on will, that by any person or persons, except by physical force immediately applied, anything can be done.

To the execution of the ordinary mass of duties belonging to the crown, the influence of will on will, so long as the persons on whom it is exercised are the proper persons, is necessary. On all persons to whom it belongs to the crown to give orders, this species of influence is necessary; for it is only in virtue of this species of influence that orders, considered as delivered from a superordinate to a subordinate—considered in a word as orders, in contradistinction to mere suggestions, or arguments operating by the influence of understanding on understanding,—can be productive of any effect.

Thus far, then, in the case of influence of will on will, as well as in the case of influence of understanding on understanding, no rational and consistent objection can be made to the use of influence. In either case, its title to the epithet legitimate influence is above dispute.

The case, among others, in which the title of the influence of the crown is open to dispute—the case in which the epithet sinister, or any other mark of disapprobation, may be bestowed upon it (bestowed upon the bare possession, and without need of reference to the particular use and application which on any particular occasion may happen to be made of it,)—is that where, being of that sort which is exercised by will on will, the person on whom on the occasion in question it is exercised, is either a member of parliament, or a person possessed of an electoral vote with reference to a seat in parliament.

The ground on which this species of influence thus exercised is, by those by whom it is spoken of with disapprobation, represented as sinister, and deserving of that disapprobation, is simply this:—viz. that in so far as this influence is efficient, the will professed to be pronounced is not in truth the will of him whose will it professes to be, but the will of him in whom the influence originates, and from whom it proceeds: in so much, that if, for example, every member of parliament without exception were in each house under the dominion of the influence of the crown, and in every individual instance that influence were effectual,—the monarchy, instead of being the limited sort of monarchy it professes to be, would be in effect an absolute one—in form alone a limited one; nor so much as in form a limited one any longer than it happened to be the pleasure of the monarch that it should continue to be so.

The functions attached to the situation of a member of parliament may be included, most or all of them, under three denominations—the legislative, the judicial, and the inquisitorial: the legislative, in virtue of which, in each House, each member that pleases takes a part in the making of laws; the judicial, which, whether penal cases or cases non-penal be considered, is not exercised to any considerable extent but by the House of Lords; and the inquisitorial, the exercise of which is performed by an inquiry into facts, with a view to the exercise either of legislative authority, or of judicial authority, or both, whichever the case may be found to require. To the exercise of either branch may be referred what is done, when, on the ground of some defect either in point of moral or intellectual fitness, or both, application is made by either house for the removal of any member or members of the executive branch of the official establishment—any servant or servants of the crown.

But, for argument’s sake, suppose the abovementioned extreme case to be realized, all these functions are equally nugatory. Whatever law is acceptable to the crown, will be not only introduced but carried; no law that is not acceptable to the crown, will be so much as introduced: every judgment that is acceptable to the crown will be pronounced; no judgment that is not acceptable to the crown will be pronounced: every inquiry that is acceptable to the crown will be made; no inquiry that is not acceptable to the crown will be made: and in particular, let, on the part of the servants of the crown, any or all of them, misconduct in every imaginable shape be ever so enormous, no application that is not acceptable to the crown will ever be made for their removal; that is, no such application will ever be made at all: for in this state of things, supposing it, in the instance of any servant of the crown, to be the pleasure of the crown to remove him, he will be removed of course; nor can any such application be productive of anything better than needless loss of time.

Raised to the pitch supposed in this extreme case, there are not, it is supposed, many men in the country, by whom the influence of the crown, of that sort which is exercised by the will of the crown on the wills of members of parliament, would not be really regarded as coming under the denomination of sinister influence; not so much as a single one by whom its title to that denomination would be openly denied.

But among members of parliament, many there are on whom, beyond possibility of denial, this sort of influence—influence of will on will—is exerted: since no man can be in possession of any desirable situation from which he is removable, without its being exerted on him; say rather, without its exerting itself on him: for to the production of the full effect of influence, no act, no express intimation of will on the part of any person, is in any such situation necessary.

Here, then, comes the grand question in dispute. In some opinions, of that sort of influence of will on will, exercising itself from the crown on a member of parliament, or at any rate on a member of the House of Commons, composed of the elected representatives of the people, not any the least particle is necessary—not any the least particle is in any way beneficial—not any the least particle, in so far as it is operative, can be other than pernicious.

In the language of those by whom this opinion is held, every particle of such influence is sinister influence, corrupt or corruptive influence, or, in one word, corruption.

Others there are, in whose opinion, or at any rate, if not in their opinion, in whose language, of that influence thus actually exercising itself, the whole, or some part at any rate, is not only innoxious but beneficial, and not only beneficial but—to the maintenance of the constitution in a good and healthful state—absolutely necessary: and to this number must naturally be supposed to belong all those on whom this obnoxious species of influence is actually exercising itself.

[† ]The device here in question is not peculiar to politicians. By an example drawn from private life, it may to some eyes be placed, perhaps, in a clearer point of view. The word gallantry is employed to denote either of two dispositions, which, though not altogether without connexion, may either of them exist without the other. In one of these senses, it denotes, on the part of the stronger sex, the disposition to testify on all occasions towards the weaker sex those sentiments of respect and kindness by which civilized is so strikingly and happily distinguished from savage life. In the other sense, it is, in the main, synonymous to adultery: yet not so completely synonymous (as indeed words perfectly synonymous are of rare occurrence) but that, in addition to this sense, it presents an accessary and collateral one. Having, from the habit of being employed in the other sense, acquired, in addition to its direct sense, a collateral sense of the eulogistic cast, it serves to give to the act, habit, or disposition, which in this sense it is employed to present, something of an eulogistic tincture, in lieu of that dyslogystic colouring under which the object is presented by its direct and proper name. Whatever act a man regards himself as being known to have performed, or meditates the performance of, under any expectation of his being eventually known to have performed it, he will not, in speaking of it, make use of any term the tendency of which is to call forth, on the part of the hearer or reader, any sentiment of disapprobation pointed at the sort of act in question, and consequently, through the medium of the act, at the agent by whom it has been performed. To the word adultery, this effect, to every man more or less unpleasant, is attached by the usage of language. On every occasion in which it is necessary to his purpose to bring to view an act of this obnoxious description, he will naturally be on the look-out for a term in the use of which he may be supposed to have had another meaning, and which, in so far as it conveys an idea of the forbidden act in question, presents it with an accompaniment, not of reproach, but rather of approbation, which in general would not have accompanied it but for the other signification which the word is also employed to designate. This term he finds in the word gallantry.

There is a sort of man, who, whether ready or no to commit any act or acts of adultery, would gladly be thought to have been habituated to the commission of such acts: but even this sort of man would neither be found to say of himself, “I am an adulterer,” nor pleased to have it said of him, “He is an adulterer.” But to have it said of him that he is a man of gallantry,—this is what the sort of man in question would regard as a compliment, with the sound of which he would be pleased and flattered.