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.

SECTION III.

ADVANTAGES.

The advantageous properties of the proposed resource may be stated under the following heads, viz.—

1. Its unburthensomeness.

2. Its tendency to cut off a great source of litigation.

3. Its favourableness to marriage.

4. Its probable popularity on that score.

Its unburthensomeness, which is the great and transcendent advantage, is not matter of surmise: it is testified by experience: it is confirmed, as we shall see, by the most indisputable principles of human nature—by the fundamental constitution of the human feelings.

1. It is testified by experience. On the decease of my uncle, who had children before I was born, the law gives everything to his children, nothing to me. What do I suffer from finding myself thus debarred? Just nothing—no more than at the thoughts of not succeeding to the stranger whose hearse is passing by.

What more should I suffer, if my uncle’s property, instead of going to his children, were known beforehand to go to the public? In point of personal feeling, at least, nothing: sympathy for my cousins, in the case of their being left destitute, is a different concern.

Living under the law of England, I find myself debarred from a succession, in which I should have shared had I lived under the law of Spain. What do I suffer at hearing this? Just nothing: no more than I suffer at the thoughts of not being king of Spain. But if the law of England were to be changed in this behalf, in conformity to the measure proposed, what is now the existing law would be to me no more than the law of Spain.

My father gets an office: upon his decease, the office goes to the nominee of the king, from whom he got it, not to me. Do I regard the successor as an intruder?—do I feel his taking possession of the office as a hardship upon me? No more than I do his Majesty’s having succeeded to the crown instead of me.

Under the existing law of escheat, real property, on the absolute failure of all heirs, lapses to the crown already. Is there anything of hardship felt by any body? If there were, it would be a cruel hardship, for it would be felt by every body.* Give to this branch of law the extent proposed, confining it always within the bounds above traced out, and it will be even then as unburthensome as it is now.

Thus stands the resource in point of unburthensomeness, as demonstrated by experience. What does so singular a property turn upon? Upon a most simple and indisputable principle in human nature—the feeling of expectation. In the case of acquiring or not acquiring—of retaining or not retaining—no hardship without previous expectation. Disappointment is expectation thwarted: in the distribution of property, no sense of hardship but in proportion to disappointment. But expectation, as far as the law can be kept present to men’s minds, follows with undeviating obsequiousness the finger of the law. Why should I suffer (bodily distress from want out of the question)—why should I suffer, if the property I call mine, and have been used to regard as mine, were to be taken from me? For this reason, and no other: because I expected it to continue with me. If the law had predetermined that the property I am now using as mine, should, at the arrival of the present period, cease to be mine, and this determination of the law had been known to me before I began to treat it as mine, I should no longer have expected to be permitted to treat it as mine: the ceasing to possess it, the ceasing to treat it as mine, would be no disappointment, no hardship, no loss to me. Why is it that I do not suffer at the reflection that my neighbour enjoys his own property, and not I? Because I never expected to call it mine. In a word, in matters of property in general, and succession in particular, thus then stands the case: hardship depends upon disappointment; disappointment upon expectation; expectation upon the dispensations, meaning the known dispensations of the law.

The riddle begins to solve itself: a part taken, and a sense of burthen left; the whole taken, and no such effect produced: the effect of a part greater than the effect of a whole: the old Greek paradox verified, a part greater than the whole† Suffer a mass of property in which a man has an interest to get into his hands, his expectation, his imagination, his attention at least, fastens upon the whole. Take from him afterwards a part; let it be such a part and no other, as at the time of his beginning to know that the whole was to come into his hands, he knew that he would have to quit: still, when the time comes for giving it up, the parting with it cannot but excite something of the sensation of a loss—a sensation which will of course be more or less pungent according to the tenacity of the individual. Ah! why was not this mine too? Ah! why must I part with it? Is there no possible means of keeping it? Well, I will keep it as long as I can, however; and, perhaps, the chapter of acculents may serve me. Take from him now (I should not say take,) but keep from him the whole; so keeping it from him that there shall never have been a time when he expected to receive it. All hardship, all suffering, is out of the case: if he were a sufferer, he would be a sufferer indeed; he would be a sufferer for every atom of property in the world possessed by anybody else; he would be as miserable as the world is wide.*

Under a tax on successions, a man is led, in the first place, to look upon the whole in a general view as his own: he is then called upon to give up a part. His share amounts to so much—this share he is to have; only out of it he is to pay so much per cent. His imagination thus begins with embracing the whole; his expectation fastens upon the whole: then comes the law putting in for its part, and forcing him to quit his hold. This he cannot do without pain: if he could, no tax at all, not even a tax on property, would be a burthen; neither land-tax nor poor’s-rate could be too high.†

The utility of that part of the proposal which gives to the public officer possession of the whole, whether the public, in conclusion, is admitted to the whole, or only to a part, may now be seen in full force. It is a provision not more of prudence with a view to the public, than of tenderness with a view to the individual. Had he been suffered to lay his hands upon the whole, being afterwards or even at the time called upon to give up a part, his attention would unavoidably have grasped the whole: the giving up the part would have produced a sensation, fainter perhaps, but similar to that produced by an unexpected loss: on the other hand, as according to the proposal he takes nothing that he does not keep, no such unpleasant sensation is produced.

The case where the individual sees a share go from him for the benefit of the public, in the way of partition, stands in this respect between the case where the public is let into the whole, and that where a part is taken from him in the way of a tax. Whether, on this plan of partition, the individual shall feel in any degree the sensation of a loss, will depend partly upon the mode of carving out the share—partly upon the proportion taken by the law—partly after all upon the temper and disposition of the individual. As to the mode of carving, the whole secret lies in taking the public officer and not the individual for the carver, for the reasons that have been seen. As to the proportion,—to come back to the paradox, the larger the share of the public the better, even with reference to his feelings; for the larger it is, the more plainly it will show as a civil regulation in matters of succession: the smaller, the more palpably it will have the air of a fiscal imposition—the more it will feel, in short, like a tax. The more is taken under the name of a tax, the more burthensome the measure, as everybody knows: at the same time, the more is taken for the public under the name of partition, so long as an equal or not much more than equal share is left to the individual, the farther the measure from being burthensome, because the farther from being considered as a tax. The Roman tax of five per cent. on collateral successions was considered as a heavy burthen: a tax of fifty per cent. imposed under the name of a tax, would have been intolerable: at the same time, pass, instead of the tax, a law of inheritance, giving the public fifty per cent. upon certain successions, the burthen may be next to nothing: pass a law of inheritance, giving the public the whole, the burthen vanishes altogether. The dominion of the imagination upon the feelings is unbounded: the influence of names upon the imagination is well known. Things are submitted to without observation under one name, that would drive men mad under another. Justice is denied to the great bulk of the people by law-taxes, and the blind multitude suffer without a murmur. Were the distribution of justice to be prohibited in name, under a penalty to the amount of a tenth part of the tax, parliament would be blown into the air, or thrown into a mad-house.

Would it be better, then, upon the whole, for the public to take all, and let no relation in for a share? Certainly not in every case: the law is powerful here; but even here, the law is not absolutely omnipotent. It can govern expectation absolutely, meaning always in as far as it makes itself present to the mind: it can govern expectation absolutely; but governing expectation is not everything. It may prevent me from being disappointed at not having bread to eat; but if, by preventing my having bread to eat, it starves me, it will not prevent me from suffering by being starved. It can save me, in this way, from ideal hardship, but not from corporal sufferance. It can save me from disappointment at not beginning to enjoy, but it cannot save me from disappointment at not continuing to enjoy, after the habit of enjoyment has grown upon me. Hence the necessity of consulting the rules of precautionary tenderness that have been exhibited above.

Unburthensomeness is a praise that belongs to this mode of supply in another point of view: with reference to the business of collection. In many instances, so great is the incidental burthen accruing from this source, as almost to rival in real magnitude, and even eclipse in apparent magnitude, the principal burthen which is the more immediate fruit of the fiscal measure. This is more eminently the case in the instances of the customs and the excise—of those branches of taxation by which by far the largest portion of the revenue is supplied. The officer of excise goes nowhere where he is not a guest; and of all guests the most unwelcome. The escheator will have nowhere to go where he is not at home—into no habitation, into no edifice, not so much as upon a foot of land, which is not to this purpose—which is not, as against all individuals, his own. No jealousies—no collision of rights—no partial occupations extorted at the expense of the comfort and independence of proprietors. The excise is not only the most productive branch of the revenue, but the most capable of extension, and therefore the most liable to be extended. It can surely be no small merit in the proposed supply, in addition to its other merits, that in proportion as it extends, in the same proportion it puts a stop to the extensions of the excise.

2. The advantages that follow are of minor importance. The advantage of checking litigation in this way, by the diminution of its aliment, is, however, not to be despised. The fishing in the troubled waters of litigation, for the whole or a part of the property of a distant relation, or supposed relation, is one of the most alluring, and at the same time most dangerous pursuits, by which adventurers are enticed into the lottery of the law. It is like the search after a gold mine—a search by which the property of the adventurer is too often sunk before the precious ore is raised. Causes of this nature are by no means unfrequent in Westminster Hall; the famous. Selby cause was a bequest nominally to relations, really to the profession. This source of litigation would be effectually dried up by the measure here proposed.

An item which may naturally enough be added to the account of advantage, is the favour shown to marriage, and in particular to prolific marriages—the sort of marriages of which the title to legislative favour stands in the most plausible point of view.

That the influence of the system in question would be favourable to marriage, and in particular to prolific marriage, will hardly be disputed. Of fathers and mothers of families, it leaves the powers untouched:—it places them, in comparison with single persons of both sexes, in a situation of privilege and preeminence. Within the threshold of him whose marriage has fulfilled the ends of marriage, the foot of the officer of the revenue has no place. His will is executed in all points; whatever he bequeathes—to whomsoever he bequeathes it—offspring, relation, or stranger—passes without deduction. Whatever restriction it imposes, is all at the expense of the celibatary and unmarried. If with propriety it could be styled a tax, it would be a tax on celibacy.*

An advantage of a less questionable nature is the popularity which seems the natural effect of any measure wearing the complexion above mentioned; for popularity, it must be confessed—popularity, how hollow soever be the ground it stands upon—can never be refused a place among the advantages of a measure. Satisfaction on the part of a people—satisfaction, so long as it subsists, is a real good—so long as it subsists, its title to that appellation is altogether independent of the source from which it flows. If, indeed, the utility of the measure be illusory, then, indeed, when the illusion is dispelled, there is an end of the advantage; but the advantage, so long as it continued, was not the less real. Happily, in the present instance, the advantage is not only real, but pure. Though in the way of affording encouragement to marriage, the proposed measure should in truth be of little service, any farther than as it happened to be thought to be so, the pleasure of seeing it popular on this score may be indulged with the less reserve, as the delusion, if it be one, is not in this instance attended with any pernicious consequences.

[* ]I leave out of the supposition the case when there is a father left, a grandfather, or a relation of the half blood, and the estate escheats to the prejudice. These are but too real hardships; but they belong to the law in its present state, were ingrafted into it by accident, and would not continue in it in its proposed extended state if the choice depended upon me. Thus much must be acknowledged: the removal of them is a separate question, bearing no necessary relation to the present measure. [The law of England in this respect was altered by 3 and 4 W. IV. c. 106.—Ed.]

[† ]—πλεον ημισυ παντος.

[* ]Better to have nothing than to have a share, (says an objector.) How can that be? Is not the man himself the best judge? Ask him, then, which is best for him—share or no share? My answer is—the question does not meet the case. You suppose his attention previously drawn to the subject:—you have raised his expectation; you have given him his option between some and none:—that being the case, his answer, it is true, cannot but be as you suppose. Not to come in for anything, would now be a disappointment. It will even be a disappointment should the share he gets prove smaller than what he hoped to get, and the disappointment will be not less, but greater, if he gets no share at all. True; but all this depends upon the option: accordingly, in the case you suppose, there is an option given; whereas in the case I suppose, here is none. When an estate in England has been limited away from a man altogether, he never looks at it:—what should lead him? he has no more option in it than in the kingdom of Spain.

[† ]Try the experiment upon a hungry child: give him a small cake, telling him, after he has got it, or even before, that he is to give back part of it. Another time, give him a whole cake, equal to what was left to him of the other, and no more, and let him enjoy it undiminished:—will there be a doubt which cake afforded him the purest pleasure?

[* ]In my own estimation, the good that can be done by any encouragements of a positive nature given to marriage, shows itself, I must confess, in a very questionable point of view; but the reasons in support of this opinion not being to the present purpose, will be better spared than given. I say positive; for as to the negative kind of encouragement that, in the instance where any obstacles of a political nature can be shown to subsist, may be afforded by the removal of those obstacles, the utility of this species of encouragement stands upon a footing altogether different.