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 III.

CAUSES OF THE UTTERANCE OF THESE FALLACIES.

The causes of the utterance of these fallacies may, it should seem, be thus denominated and enumerated:—

1. Sinister interest—self-conscious sinister interest.

2. Interest-begotten prejudice.

3. Authority-begotten prejudice.

4. Self-defence, i. e. sense of the need of self-defence against counter-fallacies.

First cause,—Sinister Interest, of the operation of which the party affected by it is conscious.

The mind of every public man is subject at all times to the operation of two distinct interests—a public and a private one. His public interest is that which is constituted of the share he has in the happiness and well-being of the whole community, or of the major part of it: his private interest is constituted of, or by, the share he has in the well-being of some portion of the community less than the major part; of which private interest, the smallest possible portion is that which is composed of his own individual—his own personal—interest.

In the greater number of instances, these two interests are not only distinct, but opposite: and that to such a degree, that if either be exclusively pursued, the other must be sacrificed to it.

Take, for example, pecuniary interest. It is the personal interest of every public man at whose disposal public money extracted by taxes from the whole community is placed, that as large a share as possible, and if possible the whole of it, should remain there for his own use: it is at the same time the interest of the public, including his own portion of the public interest, that as small a share as possible, and if possible no part at all, remain in these same hands for his personal or any other private use.

Taking the whole of life together, there exists not, nor ever can exist, that human being in whose instance any public interest he can have had, will not, in so far as depends upon himself, have been sacrificed to his own personal interest. Towards the advancement of the public interest, all that the most public-spirited, which is as much as to say the most virtuous of men, can do, is to do what depends upon himself towards bringing the public interest—that is, his own personal share in the public interest, to a state as nearly approaching to coincidence, and on as few occasions amounting to a state of repugnance, as possible with his private interests.

Were there ever so much reason for regretting it, the sort of relation which is thus seen to have place between public and private interest would not be the less true: nor would it be the less incumbent on the legislator—nor would the legislator, in so far as he finds it reconcilable to his personal interest to pursue the public interest, be the less disposed and determined—to act and shape his measures accordingly.

But the more correct and complete a man’s conception of the subject is, the more clearly will he understand, that in this natural and general predominance of personal over every more extensive interest, there is no just cause for regret. Why? Because upon this predominance depends the existence of the species, and the existence of every individual belonging to it. Suppose for a moment the opposite state of things—a state in which every one should prefer the public to himself: and the consequences—the necessary consequences, would be no less ridiculous in idea, than disastrous and destructive in reality.

In the ordinary course and strain of legislation, no supposition inconsistent with this only true and rational one is acted upon. On this supposition is built whatsoever is done in the application made either of the matter of reward, or of the matter of punishment, to the purposes of government. The supposition is—that on the part of every individual whose conduct it is thus endeavoured to shape and regulate, interest, and that private interest, will be the cause by the operation of which his conduct will be determined: not only so, but that in case of competition as between such public and such private interest, it is the private interest that will predominate.

If the contrary supposition were acted upon, what would be the consequence? That neither in the shape of reward, nor in the shape of eventual punishment, would the precious matter of good and evil be wasted or exposed to waste, but (in lieu of requisition, with reward or punishment, or both, for its sanction, for securing compliance) advice and recommendation would be employed throughout the system of law, penal as well as remuneratory.

Thence it is, that in so far as in the instance of any class of men the state of the law is such as to make it the interest of men belonging to that body to give rise or continuance to any system of abuse however flagrant, a prediction that may be made with full assurance is, that the conduct of that body—that is, of its several members with few or no exceptions—will be such as to give rise or continuance to that system of abuse: and if there be any means which have been found to be, or promise to be, conducive to any such end, such means will accordingly, how inconsistent soever with probity in any shape, and in particular in the shape of sincerity, be employed.

A common bond of connexion, says Cicero somewhere, has place among all the virtues. To the word virtue, substitute the word abuse, meaning abuse in government, and the observation will be no less true. Among abuses in government, besides the logical commune vinculum composed of the common denomination abuse, there exists a moral commune vinculum composed of the particular and sinister interest in which all men who are members of a government so circumstanced have a share.

So long, then, as any man has any the smallest particle of this sinister interest belonging to him—so long has he an interest, and consequently a fellow-feeling with every other man who in the same situation has an interest of the like kind. Attack one of them, you attack all; and in proportion as each of them feels his share in this common concern dear to him, and finds himself in a condition to defend it, he is prepared to defend every other confederate’s share with no less alacrity than if it were his own. But it is one of the characteristics of abuse, that it can only be defended by fallacy. It is therefore the interest of all the confederates of abuse to give the most extensive currency to fallacies,—not only to such as may be serviceable to each individual, but also to such as may be generally useful. It is of the utmost importance to them to keep the human mind in such a state of imbecility, as shall render it incapable of distinguishing truth from error.

Abuses—that is to say, institutions beneficial to the few at the expense of the many—cannot openly, directly, and in their own character, be defended: if at all, it must be in company with, and under the cover of other institutions, to which this character either does not in fact appertain, or is not seen to appertain.

For the few who are in possession of power, the principle the best adapted, if it were capable of being set to work, would be that which should be applicable to the purpose of giving to the stock of abuses established at each given period, an unlimited increase.

No longer than about a century ago, a principle of this cast actually was in force, and that to an extent that threatened the whole frame of society with ruin; viz. under the name of the principle of passive obedience and non-resistance.

This principle was a primum mobile, by the due application of which, abuses in all shapes might be manufactured for use, to an amount absolutely unlimited.

But this principle has now nearly, if not altogether, lost its force. The creation of abuses has therefore of necessity been given up; the preservation of them is all that remains feasible: it is to this work that all exertions in favour of abuse have for a considerable time past, and must henceforward be confined.

Institutions—some good, some bad—some favourable to both the few and the many—some favourable to the few alone, and at the expense of the many—are the ingredients of which the existing system is composed. He who protects all together, and without discrimination, protects the bad. To this object the exertions of industry are still capable of being directed with a prospect of success: and to this object they actually do continue to be directed, and with a degree of success disgraceful to the probity of the few by whom such breach of trust is practised, and to the intellect of the many by whom it is endured.

If the fundamental principle of all good government—viz. that which states as being on every occasion the proper, and the only proper end in view and object of pursuit, the greatest happiness of the greatest number—were on every occasion set up as the mark; on each occasion the particular question would be, by what particular means can this general object be pursued with the greatest probability of success?

But by the habit of recurring to and making application of this one principle, the eye of the inquirer, the tongue of the speaker, and the pen of the writer, would, on every part of the field of legislation, be brought to some conclusion—passing condemnation on some or other of those abuses, the continuance of which has this common interest for its support.

In a word, so long as any one of these relatively profitable abuses continues unremedied,—so long must there be one such person, or more, to whose interest the use of reason is prejudicial, and to whom not only the particular beneficial measure from which that particular abuse would receive its correction, but every other beneficial measure, in so far as it is supported by reason, will also be prejudicial in the same way.

It is under the past and still existing state of things—in other words, under the dominion of usage, custom, precedent, acting without any such recurrence to this only true principle—that the abuses in question have sprung up. Custom, therefore, blind custom, in contradiction and opposition to reason, is the standard which he will on every occasion endeavour to set up as the only proper, safe, and definable standard of reference. Whatever is, is right: everything is as it should be. These are his favourite maxims—maxims which he will let slip no opportunity of inculcating to the best advantage possible.

Having, besides his share in the sinister interest, his share in the universal and legitimate interest, there must, to a corresponding extent, be laws and institutions, which, although good and beneficial, are no less beneficial to and necessary to his interest, than to that of the whole community of which he makes a part. Of these, then, in so far as they are necessary to his interest, he will be as sincere and strenuous a defender, as of those by which any part of the abuses which are subservient to his sinister interest is maintained.

It is conducive, for instance, to his interest, that the country should be effectually defended against the assault of the common enemy; that the persons and properties of the members of the community in general, his own included, should be as effectually as possible protected against the assaults of internal enemies—of common malefactors.

But it is under the dominion of custom—blind, or at best purblind custom—that such protection has been provided. Custom, therefore, being sufficient for his purpose—reason always adverse to it—custom is the ground on which it will be his endeavour to place every institution, the good as well as the bad. Referred to general utility as their standard, shown to be conformable to it by the application of reason to the case, they would be established and supported, indeed, on firmer ground than at present. But by placing them on the ground of utility, by the application of reason he has nothing to gain, while, as hath been seen above, he has every thing to lose and fear from it.

The principle of general utility, he will accordingly be disposed to represent in the character of “a dangerous principle:” for so long as blind custom continues to serve his purpose, such, with reference to him and his sinister interest, the principle of general utility really is.

Against the recognition of the principle of general utility, and the habit of employing reason as an instrument for the application of it, the leading members of the government, in so far as corruption has pervaded the frame of government, and in particular the members of all ranks of the profession of the law, have the same interest as in the eyes of Protestants and other non-catholics, the Pope and his subordinates had at the time and on the occasion of the change known in England by the name of the Reformation.

At the time of the Reformation, the opposition to general utility and human reason was conducted by fire and sword. At present, the war against these powers cannot be completely carried on by the same engines.

Fallacies, therefore, applied principally to the purpose of devoting to contempt and hatred those who apply the principle of general utility on this ground, remain the only instruments in universal use and request for defending the strongholds of abuse against hostile powers.

These engines we accordingly see applied to this purpose in prodigious variety, and with more or less artifice and reserve.