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Subject Area: Economics
Subject Area: Political Theory
Subject Area: Law

SUPPLEMENTAL SECTIONS:— - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 [1843]

Edition used:

The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.

Part of: The Works of Jeremy Bentham, 11 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SUPPLEMENTAL SECTIONS:—

  • I. BANKRUPTCY AND INSOLVENCY.
  • II. HENCEFORWARD DISPATCH COURT.

SECTION I. or XXV.

BANKRUPTCY AND INSOLVENCY.

By the arrangements hereinbefore provided (see Section XI. Auxiliary Judges,) would be effectively made that due distribution of the assets of an insolvent, which by the two existing systems—namely, the Bankruptcy system and the Insolvency system, is so vainly endeavoured to be made; and the enormous waste made by the machinery of the Bankruptcy Court, and the still more enormous waste which has place in the case of insolvency, would thus be saved.

The first person to whom it happened to suspect the solvency of his debtor would repair to the Judicatory, and obtain from the Judge an attendance-commanding, or a prehension-and-adduction mandate, whichsoever the case presented itself to the Judge as requiring. The defendant on his appearance would be asked whether he admitted the demand or contested it. If he admitted it, or on contestation judgment for it were pronounced against him, he would be asked whether he is ready to pay, or prays a respite. If he prays a respite, he will then be required to produce an account of his debts, his credits, and other means of payment; and on failure of assets, notice will be given to his other creditors, as well as this one, to come in. By being brought into Court, and therein into the presence of the Judge, a man’s suffering is not greater than, nor so great, as by being consigned to a gaol, or under the notion of a mitigation, to a spunging house, where, instead of being divided amongst all his creditors, or made over to any one of them, his property is divided, so large a portion of it, among the lawyers, official and professional, the keepers of those ill-famed houses being a species of gaoler, and as such an official lawyer. By being laid under the obligation of giving a list of his debts and his assets on this occasion, and in this way without expense, his suffering is not greater than it would be under the Bankrupt laws; for under the Bankrupt laws this same disclosure he would be obliged to make.

Instead of one alone, to the detriment of all the rest, all persons to whom money from him is due will receive the same proportion of their due; no part of it would go into the pockets of a set of men to whom no part of it is due—namely, the aforesaid lawyers.

Of that part of the aggregate mass of the property of bankrupts and insolvents which now fails of being paid to their creditors, a large proportion would be saved for them: not, it is true, the whole; for before the debtor has been caused to appear before the Judge, it will have been in his power to any amount—1. To give undue favour to a creditor or creditors of his own choice; 2. To do so in appearance for his own benefit, by making over to them his property, in trust for himself; 3. To dissipate it by giving it away; 4. To lay it out in the purchase of services yielding no permanent equivalent transferable to creditors; or 5. In the purchase of consumable goods, consumed accordingly. But in the two first cases, the transfer in so far as proved might be declared void, and the transferree, if solvent, made to refund, and in the case of evil consciousness or temerity punished: and in the three other cases the then maleficent debtor might be punished. And by the apprehension of the punishment in these cases, the maleficent act would be prevented in a large proportion of the number of the instances in which in the present state of things it has place; and that delay would be saved which at present is created for the sake of the sinister profit, and thereby a loss by the interest added to the loss by the principal.

But whatsoever be the amount of it, no otherwise can this good effect be produced than on condition of substituting the hereby-proposed system of procedure, with the contemplated judicial establishment, to those which are at present in existence: the judicial establishment; because indispensable requisites are a multitude of Judges (though each acting singly,) and these sitting without intermission,—sitting with as little intermission as the keeper of the gaol and the keeper of the spunging-house:—the procedure system; for necessary are, on the part of the pursuer, initiatory examination,—on the part of the defendant, obligation of answer, viz. vivâ voce by questions arising out of answers, and under a sanction equivalent to that of an oath.

Now as to proceedings in case of insolvency incidentally discovered.

1. Relative, or say particular; 2. Absolute, or say general:—into these two cases, taken together all-comprehensive, the case of Insolvency requires to be distinguished.

In the most ordinary case, the sort of insolvency which by the demandant is supposed to have place on the part of the supposed defendant, is no other than relative, or say particular: by some cause or other, compliance on the part of the proposed defendant with the demand made by the demandant is prevented; but what that cause is, is not by the demandant matter of knowledge or belief: in particular, it is not known that inability to comply with the demands of other demandants, actual or probable, or say future contingent, is the cause or among the causes of non-compliance with relation to this same demand of his.

But of that summary mode of procedure which under the proposed system is the only mode employable in every instance in which on the part of a defendant absolute insolvency has place, one effect will in every case be this:—If with the demand made by the demandant, compliance at the hands of the defendant is desired, compliance on the spot, if the subject-matter of the demand be money, will be ordered: for this he will by the original hither-come mandate have been prepared. If then, if at that same sitting the money is not produced by him, he will be provisionally consigned to some person for custody, for the purpose of compulsory compliance. Such will be the result unless on his part relative inability, or say insolvency, is alleged.

Then will the defendant have to say to the Judge,—This is what you have ordered me to do—to pay to the demandant this sum of money; but to do this, is what I am not able.

Thereupon comes of course a dialogue to the effect following:—

Judge to Defendant.—You see how the matter stands. Before you quit this justice chamber, you must pay this money, or state to me that you labour under an inability so to do, and what are the circumstances which this inability has for its cause.

Defendant to the Judge.—Sir, I am not able to pay this money.

Judge.—How happens this?

Defendant.—Sir, at the moment your attendance-requiring mandate reached my hands, I had due to me divers debts from so many different debtors, and in this interval I have not been able to obtain from them money in sufficient amount to satisfy this demand.

Judge.—On what day, if on any, do you expect to be able to obtain from them or otherwise the requisite and sufficient sum? Are there any, and what persons besides this demandant, to whom you owe money? If yes, if on that day you have money sufficient to satisfy the demand of this demandant, shall you also have money sufficient to satisfy the demands of all such your other creditors?

Such are the questions by which, in the case in question, it will be the duty of the Judge to elicit satisfactory answers. For if by law he is bound to obtain satisfaction for this one just demand, not less is he to obtain equal satisfaction for all others.

Into the state of the defendant’s affairs the Judge will accordingly at this same hearing proceed to examine; and by questions arising out of answers, he obtains an insight into that same state, which if not particular in a degree sufficient to afford a warrant for proceeding definitively in relation to any other debt, is at any rate as particular as the circumstances of the case admit of its being made.

To supply the deficiency, then, at this same time comes the order, requiring the examinee, on a day appointed, to reappear with a written list of debts and effects,—debts due to him included;—in a word, with what, in Insolvency Court language, is called a Schedule.

In this way, at the earliest moment possible, the bloody flux is stopt. The Judge proceeds convening, as far as needful, all the defendant’s other creditors and debtors.

In amount proportioned to each one’s need, if he sees reason, he respites payment: payment from the defendant to his creditor; from the defendant’s debtors, to their creditor the defendant.

On this same occasion, if he sees need, he puts questions, having for their object the ascertaining whether, in contemplation of insolvency, undue favour has not been shown by the defendant to this or that creditor, to the detriment of the rest. If yes, he causes the excess to be refunded.

Great will be the efficiency of this arrangement; and this not merely in making reparation for the wrong, but in the prevention of it.

True it is, that for this arrangement machinery will be necessary; but to how prodigiously less an amount than that of the Bankruptcy and the Insolvency system put together!

All this over and above the diminution produced by the substitution of this same summary mode to the procedure before the Master in a case of accounts, between parties who on all sides are in a state of solvency.

What now does the existing system? The provision made in the case of insolvency, it splits into two branches: two branches, vying with each other in inaptitude—in inefficiency for all purposes but those of the lawyer brotherhood. Now for a result: Average amount of the dividend under the Bankruptcy system [NA] in the pound; under the Insolvency system, not so much as a shilling in the pound.

As for the causes of this waste, the development of them requires too much of detail, thence too much of time and letter-press, to be performed now and here.

SECTION II. or XXVI.

HENCEFORWARD DISPATCH COURT.

Enactive.

Art. 1. At the end of a service-year, reckoning from the day on which the Dispatch Court Judge took his seat, or any time sooner, the aptitude of the institution with reference to its intended purposes, having been deemed sufficiently demonstrated and made manifest by appropriate experience, power to his Majesty to institute an additional Dispatch Court for cognizance to be taken of such suits of the nature of Equity suits, as would otherwise have to be instituted in an Equity Court. Name of such additional Court, the Henceforward Dispatch Court:—name of the mandate for the purpose, the Henceforward-Dispatch-Court-instituting Mandate: form, as per Schedule No. XXX.

Enactive.

Art. 2. At the same time at which, and on the same day on which (as per art. 1,) the Henceforward Dispatch Court is instituted, the existing Equity Court will, by an accompanying mandate of his Majesty, be dissolved. Name of the mandate by which such dissolution is effected, the Equity Court-dissolving Mandate. Form thereof, as per Schedule No. XXXI.

Ratiocinative.

Art. 2*. Why not leave open to suitors the option of making application either to the thus newly-instituted Judicatory, or to the at present and then existing Equity Court?

Answer.—Reason:—If the option were left open, all the bonâ fide suits would indeed be instituted in the Henceforward Dispatch Court. But for the benefit of the expense, delay, or vexation, or all together, malâ fide suits in the same number as at present antecedently to the institution of the Dispatch Court, would be brought before the at present and then existing Equity Conrts.

Enactive.

Art. 3. Suits cognizable in the Dispatch Court will not be cognizable in the Henceforward Dispatch Court. Suits cognizable in the Henceforward Dispatch Court will not be cognizable in the Equity Dispatch Court.

Art. 4. Power to the Henceforward Dispatch Court Judge, exceptions excepted, to take cognizance of suits belonging to the cognizance of every other Court of Justice now or then in existence.

SCHEDULES TO THE BILL.

[The Schedules are not found to have been drawn by the Author. The following is a List of such as are referred to in the various Sections of the Bill.Ed.]

  • I. Form of Commission locating a Dispatch Court Judge,—(Section I. art. 3.)
  • II. Dispatch-Court-praying Petition,—(Section I. art. 4.)
  • III. Record of Proceedings in the Election of a Judge,—(Section I. art. 13.)
  • IV. Deputes of Judge, Registrar, &c. Forms for Location,
  • V. Deputes of Judge, Registrar, &c. Forms for Dislocation,
  • VI. Deputes of Judge, Registrar, &c. Forms for Suspension, and
  • VII. Deputes of Judge, Registrar, &c. Forms for Relocation,—(Section V. art. 13.)
  • VIII. Judge’s Powers:—Sistition Mandate,—(Section VI. art. 1.)
  • IX. Judge’s Powers:—Document-transference Mandate,—(Section VI. art. 12.)
  • X. Judge’s Powers:—Incarceration Mandate,—(Section VI. art. 15.)
  • XI. Judge’s Powers:—Disincarceration Mandate,—(Section VI. art. 16.)
  • XII. Judge’s Powers:—Formula for the introduction of a Judiciary-bred Eventual Act,—(Section VI. art. 72.)
  • XIII. Prehensors, &c.:—Judges’ Location Instrument,—(Section VII. art. 2.)
  • XIV. Prehensors, &c.:—Dislocation Instrument,—(Section VII. art. 5.)
  • XV. Prehensors, &c.:—Suspension Instrument,—(Section VII. art. 6.)
  • XVI. Prehensors, &c.:—Occasional-Prehensor-locating Instrument,—(Section VII. art. 7.)
  • XVII. Prehensors, &c.:—Mulcts-transmission Instrument,—(Section VII. art. 21.)
  • XVIII. Consignees:—Judge’s Management-directing Mandate,—(Section VIII. art. 15.)
  • XIX. Consignees:—Judge’s Sale-prescribing Mandate,—(Section VIII. art. 15.)
  • XX. Suits’ Suitableness:—Petition for Transference to Dispatch Court,—(Section X. art. 19.)
  • XXI. Auxiliary Judges, &c.:—Money-reception-ordering Mandate,—(Section XI. art. 18.)
  • XXII. Auxiliary Judges, &c.:—Payment-ordering Mandate,—(Section XI. art. 19.)
  • XXIII. Auxiliary Judges, &c.:—Cognizance-transferring Mandate,—(Section XI. art. 25.)
  • XXIV. Auxiliary Judges, &c.:—Refusion-securing Mandate,—(Section XI. art. 29.)
  • XXV. Auxiliary Judges, &c.:—Form of Location,—(Section XI. art. 36.)
  • XXVI. Auxiliary Judges, &c.:—Appropriate-Aptitude Certificate,—(Section XI. art. 59.)
  • XXVII. Auxiliary Judges, &c.:—Requisition for Reasons of refusal to appoint,—(Section XI. art. 61.)
  • XXVIII. Examination of Solicitors:—Attendance-commanding Mandate,—(Section XIV. art. 7.)
  • XXIX. Judge’s Mulcting Mandate,—(Section XXIV. art 3*. iii.)
  • XXX. Henceforward-Dispatch-Court-instituting Mandate,—(Suppl. Section XXVI. art. 1.)
  • XXXI. Equity-Court-dissolving Mandate,—(Suppl. Section XXVI. art. 2.)

PLAN OF PARLIAMENTARY REFORM,

IN THE FORM OF A CATECHISM, WITH REASONS FOR EACH ARTICLE: WITH AN INTRODUCTION, SHOWING THE NECESSITY OF RADICAL, AND THE INADEQUACY OF MODERATE, REFORM.

originally published in 1817.

PARLIAMENTARY REFORM CATECHISM.