Front Page Titles (by Subject) CHAPTER XIII. - The Works of Jeremy Bentham, vol. 9 (Constitutional Code)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XIII. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 9 (Constitutional Code) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 9.
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.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
Art. 1. Of cases presenting a demand for night attendance, examples are the following:—
1. A person—charged with, or suspected of, some crime, to the judicial pursuit of which, provisional confinement of the person is deemed necessary,—is apprehended and brought before the Judge: need thereupon has place for lodging him or her, until the hour arrives for day attendance, in some place and manner, suitable to what, from appearances, may be supposed to be his or her condition in life, and accustomed habits: and that in such sort, that no avoidable annoyance from incongruous association may ensue.
2. A course of criminality injurious to person, or property, or both, is going on at the time: for giving termination to it, the presence of the Judge on the spot is deemed necessary.
3. So, any calamity, for the prevention or termination of which, the ministry of the Judge is capable of being employed more speedily or more effectually than that of the Preventive Service Minister.
Art. 2. Of the Registrar, the functions are, on this occasion, exercised by the Judge. Under appropriate heads, he makes a minute of what passes: in the course of the next day, exemplars of it, for distribution, are made of it, under the care of the Registrar: name of the book in which the operations performed in the performance of night duty are entered, together with such instruments as are the result of those same operations, the Night Register.
Art. 3. Out of the matter entered in the Night Register, Night Attendance Registers, weekly, monthly, and annual, corresponding to the Day Attendance Registers, (as per Ch. xii. Judiciary collectively, Section 25, Attendance,) will be made out by the Registrar, and his signature thereto attached. Of the presence of the Judge in the Night Justice Chamber, as per Art. 4, attestation will be made by his signature, as per Ch. xii. Judiciary collectively, Section 25, Attendance, and by the co-attesting signature of the doorkeeper written in the Night Chamber, in the presence of the Judge, at the conclusion of the Night duty attendance.
Art. 4. Night Justice Chamber. For the performance of the Night duty, lest, in the time generally allotted to repose, exercise of judicial functions for cases of urgency be wanting, attached to every Immediate Judicatory is a Night Justice Chamber, in which the Judge, or some Depute of his, passes the night. What is expected is, not that he shall, throughout the night, keep himself awake: only that, for the purposes of his duty, he shall be liable to be awakened.
Art. 5. With or without the intervention of a court, the door of this night chamber opens into the street. Attached to it on the outside, is a watch-box, in which a ministerial officer, or succession of ministerial officers—to wit, a doorkeeper or doorkeepers—relieving one another, whose duty it is to keep awake, are stationed for the night. Over the door is an inscription, in conspicuous characters—The Judge’s Night Chamber, illuminated during the whole of the requisite time by a lamp. On one side of the door, in a tabular form, in like characters, and in like manner, illuminated, is a placard containing and intituled—Rules concerning admission on night business.
Art. 6. Of the manner in which night duty may be performed with least inconvenience to the functionary, an example is as follows:—
By a partition glazed and grated, and a curtain attached, that part of the chamber in which the bed is stationed, is separated from the entrance part. Of the glazed frame, the upper part is made to slide down, and the curtain is undrawn, when any person makes his appearance before the Judge. To persons coming in a peaceable manner, and, without annoying clamour, desiring to be heard on business that would suffer by delay till day time, admittance will be given to one, or, upon occasion, two at a time, by the Doorkeeping Watchman, as far as to the partition: if armed, into his custody their arms must first have been delivered. So, to persons, after lawful prehension thus adduced, to the end that they may be disposed of as per Art. 1.*
Art. 1. On whatever occasion, for giving execution and effect, in the most apt manner to the law, it is become necessary or desirable that at a distance from the Justice Chamber the Judge Immediate, in person, or by some apt Depute, should exercise any of his functions,—he is bound to do so. The duty which, on such occasions, he performs, is styled the Judge’s Out-Door Duty.
Ratiocinative. Expositive. Instructional.
Art. 2. Of the purposes for which it may be necessary or desirable that out-door duty should be performed, examples are as follows:—
1. Maximizing the instructiveness of evidence.
2. Preservation of evidence from deperition.
3. Prevention or termination of damage by delinquency or calamity.
Art. 3. Purpose I. Maximizing the instructiveness of evidence. The instructiveness of evidence is at its maximum, when the perceptible objects which enter into the composition of the grounds of the Judge’s decision, have come under the cognizance of his senses. As in the case of any other person, so in the case of the Judge,—only in default of the faculty of taking such cognizance, or for the purpose of making known to the superordinate authorities the grounds on which he acts, can the decision, consistently with the due regard to the ends of justice, direct and collateral together, be placed on the comparatively inferior ground constituted by reports, made by other persons in the character of witnesses.
Art. 4. In relation to one of the two direct ends of justice, to wit, avoidance of misdecision,—the advantage gained by performance of out-door duty,—that is to say by migration to the spot in question, for the purpose of inspection,—consists in the difference in point of instructiveness, between the ground on which the decision rests in the two opposite cases: to wit, 1. where the conception formed by the Judge, in relation to the object in question, has for its sole ground a report or reports made to him by some other person or persons, to whose senses, in so far as their declaration is correct and complete, the object did, at the time and place in question, present itself;—2. where his conception has for its ground the impression made by that same object on his own senses.
Art. 5. Of the case in which performance of out-door duty may be necessary to the accomplishment of this purpose, the subject matter of inspection being, in all three cases, a thing immoveable, examples are as follows:—
1. Where the boundaries between the property of one person, and that of another, are to be ascertained or adjusted.
2. For the purpose of compensation, where the amount of damage produced on a certain spot by physical or human agency, is to be ascertained.
3. Where the question, whether a contract, of which a certain spot has been the subject, has or has not been duly performed, is to be determined.
Art. 6. The Judge by whom the decision is framed, must be the same Judge by whom the visit to the spot has been made, or the advantage in question will not have been reaped: if it be by the Judge Principal that the decision is to be framed, by the Judge Principal must the visit have been made: if it be by a Judge Depute, by that same Judge Depute. A case may indeed be, in which it may be of advantage, upon the whole, that the visiting and inspecting Judge, be a person other than the deciding Judge; but in this case the advantage, if any, will consist in the superiority in respect of trustworthiness on the part of the report made by the visiting to the deciding Judge, in comparison of the report that would have been made by other alleged percipient witnesses, or in the addition made by the report of that same visiting Judge to the reports made by other alleged percipient witnesses.
Expositive. Ratiocinative. Exemplificational.
Art. 7. Purpose II. Preservation of evidence from deperition. Of the cases in which performance of out-door duty may be necessary to the accomplishment of this purpose, examples are as follows:—
1. Of the proposed witness the testimony being necessary to rectitude of decision, he is not capable of coming of himself on accersition, or of being adduced to the Justice Chamber, without danger of death, or serious and lasting detriment to health: as where, for conviction of a murderer or intended murderer, necessity has place for the elicitation of testimony from the lips of the person wounded by him: and so, for whatsoever purpose the testimony happens to be needed: whether for proof of a wrong in a penal case, or for proof of a right in a non-penal case.
Expositive. Ratiocinative. Exemplificational.
Art. 8. 2. A ship on the point of sailing. The testimony of certain proposed witnesses, on the occasion of a suit, penal or non-penal, being indispensable, they cannot, in the requisite number, during the time necessary for the journey to and fro, with the intervening demurrage, quit the ship, without danger of destruction, or of preponderant damage thereto, or to the value of the cargo to the freighters. By the journey of the Judge to the ship, the time of the journey, and more or less of the demurrage, as well as all danger to ship and cargo, will be saved.
Art. 9. Purpose III. Prevention or termination, or say suppression, of damage, by delinquency or calamity. For examples of such damage, see Ch. xi. Ministers severally, Section 5, Preventive Service Minister. Of the Judge’s out-door attendance, so far as regards delinquency, the exercise will be no other than that exercise of his sedative function, as per Ch. xii. Judiciary collectively, Section 11, extended to out-door cases. The reasons for the imparting to the judicial department this branch of power are—that, in a case of such emergency, it may happen that the ministry of a Judge may be capable of being employed more promptly than that of a Preventive Service Minister, or of any subordinate of his: and that, by the superior authority of the Judge, the requisite physical co-operation of persons at large may be more effectually obtained, than by the authority of any inferior functionary in the Preventive Service subdepartment.
Art. 10. Where the subject matter of inspection, be it a person or a thing is not physically, or as per Art. 7, prudentially incapable of being adduced to the Justice Chamber, the question will arise—Object to Judge, or Judge to object? Object to Judge, will of course be the general rule: Judge to object, a case of exception. To give a detailed description of the exceptions proper to be made belongs to the penal and non-penal codes, with the Procedure Codes thereto respectively attached.
Art. 11. To the same Codes, will belong the task of framing arrangements, having for their object, in cases where, for the making of such visitation, expense is necessary, the making provision for such expense: taking at the same time the requisite precautions for preventing, on these occasions, the undue consumption of the public time and money, by application made thereof to private purposes.
Art. 12. Under the care of the Registrar, on the occasion of each visit, is framed and kept the Judicatory’s Incidental Out-door Register: to wit, under the heads following, together with any such others as may come to be prescribed in the Penal and Non-Penal Codes.
1. Time—to wit, year, month, day of the month, and day of the week.
2. Purpose for which the visit was made.
3. Place to which, at each time, it was made.
4. Mode of conveyance.
5. Time of outset: hour and minute.
6. Time of arrival at the spot: hour and minute.
7. Business done there. Things in question, if any, seen.
8. Persons, if any, inspected or interrogated, or both.
9. Time of return to the Judgment Seat: day, hour, and minute.
10. Judicial functionaries occupied in the visit: attested by the initials of their respective names, in their respective hands.
11. Parties occupied in the visit, if any.
12. Professional assistants, if any, of the several parties, with their respective names and places of abode, written by them respectively at length, and mention made to what parties they were respectively assistants.
13. Extraneous witnesses, if any; adduced for example, or accersed for explanation of local appearances on the spot, with attestations in like manner.
Art. 13. Out of the several Incidental Out-door Registers, the Registrar will frame, keep, and keep hung up, weekly, monthly, and annual Out-door Attendance Registers, and employ the matter in the formation of the Individual Service Calendar, as in the case of the Home Attendance Register, as per Ch. xii. Judiciary collectively, Section 25, Attendance.
Art. 14. For other matters, see Ch. xii. Judiciary collectively, Section 25, Attendance.
Judge Immediate Deputes Permanent.
Fields of Service.
Art. 1. Exceptions excepted, coincident with both fields of service, of the Judge Principal, are those of every Judge Depute permanent.
Art. 2. Exceptions. 1. To a Judge Depute permanent, belongs not the power given by Ch. vi. Legislature, Section 2, to the Judge Principal: namely that of representing an act of the Legislature as being anticonstitutional.
2. Nor the power of locating subordinate functionaries, as per Ch. xii. Section 8, saving in case of urgent need to the senior in service, on the death of the Judge Principal, and for a time ending with the location of a successor.
3. Nor the power of dislocating such functionaries, saving in case of urgent need.
4. Nor the power of exercising the self-suppletive function as to his own office.
Art. 3. To every Depute permanent passes of course along with the instrument of deputation, the executive function, subject, so long as the suit continues in that same Judicatory, to the direction of his Principal.
Art. 4. So likewise as to all ministerial subordinates, the directive, so far as necessary to the exercise of his above-mentioned executive function: as also the suspensive.
Art. 5. So likewise as to all things, the use of which is necessary to the exercise of his other functions, the custoditive and applicative; but not the procurative or the eliminative.
Art. 6. So likewise as to all persons subject to the exercise of his directive function, the inspective.
Art. 7. So likewise as to all things subject to the exercise of his custoditive and applicative functions, the inspective.
Art. 8. So likewise as to persons, things, and judicial proceedings and occurrences, by and with the instrumentality of the Registrar or his Deputy, on the several occasions respectively located, the minutative and recordative function.
Art. 9. So likewise as to states of things, ordinances and arrangements, the melioration-suggestive.
Art. 10. The instrument of location, with the year, month, and day of the month, is signed by the Principal, and, in token of acceptance, by the Depute. Exemplars are disposed of as follows:—
1. Deposited under the care of the Registrar in the Judicatory, one.
2. In the case of an Immediate Judicatory, transmitted forthwith to the Registrar of the Appropriate Appellate Judicatory, one.
3. Transmitted forthwith to the Justice Minister, one; as to whom, see Ch. xxiv.
4. Delivered to the locatee, one.
5. Kept by the locator in his individual capacity, one.
Art. 11. The Principal and his Deputes permanent as well as occasional, in any number, are expected to act as far as occasion demands at the same time.
Relation to Principal.
Art. 1. At the requisition of the Judge Principal, a Depute permanent is at all times bound to commence his sittings at the place, day, and hour, in and by the instrument of requisition prescribed: and, in the fulfilment of such his duty, as the occasion requires, to continue any number of hours, not exceeding that prescribed in Ch. xii. Judiciary collectively, Section 25, Attendance: it being understood that the Depute is not bound to do judicial service, other or more severe than that to which the Judge Principal is himself bound.
Art. 2. If, without just excuse, after such requisition received, with time sufficient for compliance, he omits to attend and serve, or departs before the appointed time of service is expired, entry of such his default will be made by the Registrar in the Register of the day, and the defaulter will stand compensationally and punitionally responsible. As to excuses for non-compliance with judicial mandates on the part of public functionaries, see the Procedure Code.
Art. 3. By any confirmation, expressed or implied, given by the Judge Principal to the proceedings of the Judge Depute, it is not to be understood, unless so expressed, that he has taken personal cognizance of such proceedings, or any of them: all that is meant is—that, by him, nothing erroneous in them has been known, or suspected to have had place. For error, in the proceedings of the Depute, appeal to the Judge Appellate affords the same remedy, as for the like in the proceedings of the Principal.
Art. 4. For relief against oppression of a Judge Depute permanent by his Principal, appeal lies to the Appellate Judicatory.
Art. 5. Oppression in a particular shape—constituting an abuse—in which the guarding against it is attended with a particular degree of difficulty,—is this,—
To the fulfilment of Deputes’ service time, (two years, as per Ch. xii. Judiciary collectively, Section 28, Locable who,) and thence to his locability in the situation of Principal, the Principal to an unlimited extent applies undue retardation, namely, by purposed forbearance to assign to him his due proportion of the aggregate number of suits.
Art. 6. Inducements, adequate to the production of this injustice, are at all times in the nature of man and things: 1. ill-will, for example, towards the Depute in question: 2. undue partiality in favour of this or that other Depute: 3. jealousy of superior talent, or appropriate aptitude in some other shape, in the instance of this same Depute: 4. on the part of the Judge Principal, desire of recommending himself to the favour of the superordinate locating functionary, namely, the Justice Minister, or any other high functionary, under the notion of the Depute’s being to them respectively an object of disfavour, well or ill grounded, or a rival Depute, of undue favour.
Art. 7. Such being the abuse, now as to the remedy. Two obvious ones present themselves: rotation and lot. But by either of these, the public service in this shape might be left exposed to detriment in an unlimited degree: namely, by inaptitude on the part of a Depute to a corresponding degree.
Art. 8. Although against abuse in this shape, scarcely does the nature of things admit of any completely effectual remedy; yet the following palliatives will be seen to be of no inconsiderable efficacy, and quite sufficient to preserve the institution of Deputeship against rejection.
1. The Depute submits to the injustice, till the migration of the unjust Judge Principal into another judgeshire, as per Ch. xii. Judiciary collectively, Section 17, Migration, takes place: of which migration, the time cannot be later than three years, and may have place at any day.
2. The Depute himself migrates into another Judgeshire. If in the Judicatory in question his conduct has been irreproachable, no considerable objection to his aptitude in any shape having become apparent, complaints against him on the part of his Principal, will have the effect of drawing attention to his suffering, the rendering him an object of sympathy, and the engaging the Judge of this or that other Judgeshire, to make choice of him for Depute.
3. On the ground in question, the Depute makes his appeal to the Judge Appellate of the Judicatory, or to the Justice Minister; who thereupon, if he thinks fit, addresses to the Principal an admonition or recommendation, having for its object the application of the appropriate redress.
4. Through the medium of the Press, the Depute makes his Appeal to the Public-Opinion Tribunal.
Art. 9. As to the two last of these remedies, such is the natural uncertainty of their success, and such, on that and other accounts, on the part of a party injured, the natural reluctance to having recourse to them, that such recourse does not present itself as likely to be, in any considerable degree, frequent. But of the eventual recourse to one or other of these four remedies, the existence of an effective apprehension on the part of every Judge Principal, presents itself as being, in every instance, in a high degree probable: and that in such a degree of strength, as to be sufficient for confining the abuse within bounds as narrow as the nature of man, in any case, admits of.
Art. 10. Judge Principal Depute’s Service-regulating function. In the exercise of his Eventually-emendative function, subject to the control and direction of the Appellate Judicatory and the Justice Minister,—each Immediate Judge Principal, from time to time, by the light of experience, frames regulations respecting the manner in which the various portions of the business of his Judicatory, as determined by the species of suit, shall be distributed among the several Judge Deputes permanent, attached to that same Judicatory.
Art. 11. No judicial business will remain unproceeded upon, so long as there exists upon the list a Judge Depute permanent, by whom proceedings thereupon can be carried on.
Art. 12. If, at the same time, there be divers persons in waiting, each of them in the character of an applicant,* to give commencement to a suit, and at the same time divers Judge Deputes permanent, within call and unoccupied, the several applications will be distributed among them by lot, saving such choice as the Judge may see reason to make for special cause assigned.
Art. 13. When, in any Judicatory, by any cause whatsoever, a vacancy has been produced in the situation of Judge Principal,—the Judge Depute permanent, if there be but one, or if more than one, the senior in service, as per Ch. xii. Section 29, Located how, takes his place: and, until the vacancy is filled up, by the presence of a successor, occupies it, but without the pay.
Art. 14. So, in case of any temporary disability of the Judge through sickness, or any unexpected prolongation of his stay upon distant out-door service.
Art. 15. At the request of a party on either side, or of his own motion, any particular point may, by a Judge Depute permanent, be referred to the cognizance of the Judge Principal: but it will be for the care of the Judge Principal and that of his Judge Appellate, that such reference be not made to have the effect of an engine of preponderant delay, vexation, or expense.
Enactive. Instructional. Ratiocinative.
Art. 16. Forasmuch as Appeal will lie, from the decisions of the Judge Depute, as well as from those of the Judge Principal, appeal to the Judge Principal is not allowed from any decision of the Judge Depute, lest such interposed stage of appeal should be employed as an engine of undue delay, vexation, and expense. But if, in a case of doubt and difficulty, request of any such reference, as in Art. 15, be made,—and, in the declared opinion of the Judge Depute, such reference may be made without preponderant delay, vexation, and expense—he will do well to comply with the request: mention thereof, and of the consequent compliance or non-compliance, will of course be entered on the record.
Enactive. Ratiocinative. Instructional.
Art. 17. As when it is before the Judge Principal, so when it is before a Judge Depute permanent, that the suit has been commenced,—after the original inquiry—a recapitulatory inquiry will have place, in any of the cases mentioned in Ch. xvi. Quasi-Jury, Section 1, Fields of Service. On this second inquiry, the Judge Depute should in general be the same as on the first: because, to any second Judge the evidence that had been elicited on the first inquiry, cannot otherwise present itself in the most apt shape, unless the percipient witnesses be examined over again, by which correspondent delay, expense, and vexation must be produced. Nevertheless, for preponderant reasons assigned, the Judge Depute permanent may, on this occasion, of his own motion, transmit the recapitulatory inquiry from himself to the Judge Principal, who, in such case, will either perform the inquiry himself, or transmit it to some other one of his Judge Deputes permanent: and, on the application of any party, with or without reason assigned, it will in like manner be transmitted to the Judge Principal. But in this case it will be for the Judge Principal to consider, whether the application had not for its cause, a hope entertained of the deception capable of being produced by the comparatively unapt shape of the first edition of the evidence; and if yes, to declare such his opinion or suspicion, and act accordingly, on the occasion of his decrees.
Art. 18. Contested-interpretation-reporting function. When the ultimate decree, on the occasion of which—the demand for a legislative interpretation presents itself, is the decree of a Judge Depute, he it is by whom, if at all, this function will have to be exercised. But, in this case, the report must, at or before the time of its being transmitted to the Judge Appellate, be transmitted to the Judge Immediate Principal, for the purpose of receiving any such observations as he may think fit to add, before his fiat is attached to it.
Art. 19. Eventually-emendative function. By a Judge Depute permanent may this function also be exercised. But in this case, likewise, the proposed amendment must, at or before the time of its being transmitted to the Judge Appellate, be transmitted to the Judge Immediate Principal, to receive his observations, as above.
Art. 20. Sistitive function. By a Judge Depute permanent may this function also be exercised. But in this case, exceptions excepted, the mandate must be countersigned by the Judge Principal, or his substitute, in case of vacancy, or in case of sickness or distance from the judgment-seat, as per Ch. xii. Judiciary collectively, Section 10, Self-suppletive function.
Exception is where, before the decision of the Judge Principal, or of such his substitute, could take effect,—irreparable damage would probably ensue: in which case, a clause giving indication of the damage, and of the evidence on which the apprehension of it is grounded, must be inserted in the appropriate mandate.
Art. 21. Preinterpretative function. By a Judge Depute permanent may this function also be exercised. But, in this case also, the proposed interpretation must, at or before the time of its being transmitted to the Judge Appellate, be transmitted to the Judge Immediate Principal, to receive his observations, as above.
Art. 22. If, by reason of the multitude of the persons, to whom, by this means, the exercise of the contested interpretation reporting, eventually-emendative, sistitive, and preinterpretative functions, is thus imparted,—the demand made upon the attention of the Legislature, or upon that of the Judges Appellate, or upon that of the Justice Minister, shall, at any time, be found to be inconveniently increased,—the Legislature will make the appropriate arrangements for lessening it.
Art. 23. Of the ways in which such demand may be lessened, examples are the following:—
1. Confining to the Judge Principal the exercise of these functions respectively.
2. Requiring, on each occasion, the concurrence of Judge Deputes permanent, more than one.
3. In the case of the preinterpretative function, interdicting applications, on the same subject, by the same person, to Judicatories more than one.
Art. 24. For cause assigned, and subject to Appeal to the Judge Appellate, to a Judge Principal belongs the power of dislocating at any time any Judge Depute permanent, serving in his Judicatory: in which case the name of the Depute, is by the Registrar eliminated out of the list, formed from the Individual Service Calendar, as per Ch. xii. Section 28, Locable who.
Art. 25. Of such elimination, the effect is—to exclude the person so eliminated from the capacity of being located in the situation of Judge Principal: and from that of officiating in any other Judgeshire in the situation of Judge Depute.
Art. 26. In case of Appeal to the Judge Appellate, and thereafter to the Justice Minister, belong to them respectively the options following:—
1. To confirm the dislocation altogether.
2. To annul it altogether.
3. To confirm it as to the particular Judgeshire in question: annulling it, as to the incapacity of serving in this or that other Judgeshire, or in this or that number of Judgeshires: and so, as to the incapacity of being located in the situation of Judge Principal.
Art. 27. On the occasion, and for the purpose, of such dislocation, the Judge Principal proceeds in the same manner as in the case of any subordinate functionary.
Art. 28. If the dislocation be for ulterior punishment, or for compensation to a party wronged, or both,—the Judge Principal will proceed and decree accordingly, on the same evidence.
Art. 29. For the care to be taken by a Judge Principal as to the enabling his Depute to acquire aptitude for location as Principal, see Ch. xii. Section 27, Judges’, &c., Remuneration.
Term of Service.
Art. 1. For the purpose of his locability in the situation of Judge Principal, a Judge Depute permanent, unless dislocated, as per Section 2, Relation to Principal: or in the same mode as a Judge Principal, as per Ch. xii. Judiciary collectively, Section 30, Dislocable how, continues, in such his situation, for life, unless and until located in the situation of Judge Immediate Principal, or that of Immediate Registrar.
Art. 2. In the Judicatory in which he first received his deputation, he continues, unless dislocated, as long as he chooses, and from thence passes into any others successively, in which he finds a Judge Principal disposed to employ him as Depute.
Art. 1. In the situation of Judge Depute permanent, the attendance will, in respect of days and hours, be in general the same as in that of the Judge Principal, as per Ch. xii. Section 25; or in such other degree of assiduity, as, on the occasion of the location or afterwards, shall have been agreed on between the Principal and each Depute: yet, so as for want of some Judge Depute, permanent or occasional, no business shall remain undespatched.
Art. 2. For particulars, see Section 2, Relation to Principal.
Art. 1. Distinction, power, and in proportion to appropriate aptitude, reputation—of these elements is composed the remuneration of a Judge Depute permanent: add to these, if the situation of Judge Principal, with superior power, and remuneration in a pecuniary shape, (but charged with closer obligation,) be among the objects of desire, the prospect of being therein located, as per Ch. xii. Section 28, Locable who. From unwilling hands, receipt of other remuneration is extortion; from willing ones, corruption.
Art. 2. The eligibility of the prospect in this case is much superior to the case of the articled Clerk of an Attorney, or of a Law Student before he is called to the Bar. Five years is the term of their apprenticeship, with prospect of uncertain and variable remuneration at the end of it. The apprenticeship of the Judge Depute is no more than two years, with prospect of certain and fixed remuneration.
Art. 3. On this occasion, a question which cannot fail to be put, and to which particular and sinister interest will be eager to make answer in the negative, is this:—is there any sufficient probability that upon such terms, under obligation to so close an attendance, under such strict responsibility, and without salary or remuneration, in any other pecuniary or quasi-pecuniary shape,—apt persons will constantly be found willing to serve, in this capacity, in adequate abundance?
To this question apply the following answers:—
1. Judging from extensive and notorious custom, there seems no reason for regarding the requisite acceptance as being in any degree improbable.
2. Were pay, in any shape, to any amount attached to the Office, the whole plan would be frustrated: this will presently be made manifest.
3. In the character of an adequate cause of demand for expense, insufficiency of inducement should not be assumed. Upon the ground of such insufficiency, it will be time enough to act, after the existence of it has been demonstrated by experience.
4. Supposing it demonstrated by experience, that upon these terms an adequate number of apt persons are not procurable,—in that case, a course which, in the first instance, would be more eligible, than the attaching of pay to the situation of Depute, would be the attaching of additional pay to the situation of Judge Principal: for in that case, the amount of the expense would be determinate; whereas in the opposite case, it would be indeterminate.
5. On the ground of economy, were that the only one, the non-necessity of pay would, in this instance, as in every other, be sufficient reason for withholding it.
6. But, in this instance, by every penny needlessly thus applied, a step is made towards the creation of delay, and denial of justice. For procurement of the quantity of Judge power, sufficient to shut the door against those evils, the quantity of money, capable of being applied to this object, is (suppose) sufficient, but barely sufficient: add now more pay—call in consequence for more money—by the supposition it is not as yet to be had:—it is not to be had till a law for the raising of the money has been enacted. What then is the consequence? suits present themselves, for the cognizance and termination of which, no Judge power is at hand.
Art. 4. So much for the several distinguishable reasons for which, to the situation of Judge Depute, pecuniary emolument should not, in any shape, be attached. Now for the way in which, by any such arrangement, the whole design would be completely frustrated.
From the allowing to the Judge Principal an unlimited power of locating Deputes in any number in which he can find persons willing to accept the office, no evil consequence in any shape can, under the responsibility provided, (as per Ch. xii. Judiciary collectively, Section 10, Self-suppletive-function,) in any case ensue. Attach emolument to the situation, the inlet thus given to abuse is manifest, and to the evil capable of being produced by it, no limit can be assigned. Why not? Answer: Even because no limit can be assigned to the multitude of the suits, or demands for suits, which, on this or that particular occasion, may chance to be rising up, and calling for Judge power, for taking cognizance of them; on which consideration are grounded the provisions made in the next chapter (Ch. xv.) for Judge Deputes occasional, to be located as occasion calls. If, then, to the situation of Judge Depute permanent pay were attached, say in the shape of salary, here would be so many salaries so circumstanced, that, on the part of the Judge Principal, to the interest would be added the power, of loading the community with the expense of conferring this benefit on persons in whatsoever number it were agreeable to him to confer it. What, then, would be the ulterior consequence? Answer: That, as the several particular occasions ceased to have place, here would be so many situations remaining in a state of sinecure.
Art. 5. If in this shape the bounty of Fortune were not adequate to his wishes, little difficulty would he find in the supplying the deficiency by art. How should he? The whole history of the Judicial Establishment, with its Procedure,—in England, not to speak of other countries,—is the history of art applied to this same purpose.
In the situation in question, the majority of men, not to say the totality, would, by this sinister interest, be tempted—would be induced, as above, to create Judge Depute power in excess. Nor is this all: for, among men in this situation, suppose in the Judge of this or that Judgeshire, public virtue, of so rigid a texture as to be proof against this temptation, then comes another and an opposite danger: the danger—lest of this number, a proportion more or less considerable should, for fear of the imputation, forbear to create, to a sufficient amount, the additional Judge power requisite: and thus it is—that, in every, or almost every, Judgeshire, there would be either too much of it, or not enough.
On the other hand, lay out of the question all pecuniary emolument,—all interests concur in securing the universally desirable result—providing a sufficiency of this power, and avoiding to provide it in excess: be the supply ever so great, on no man is any burthen imposed by it; no man is, in any way, a sufferer by it: be it ever so small, still no deficiency is there in the quantity of it. The supply is, in a word, elastic: it possesses one of the properties of the fabled boots: it fits itself to every leg. Add pecuniary emolument, the supply becomes rigid: the good becomes volatile, and flies off with the moment; the evil—the pecuniary burthen remains fixed.
Art. 6. Of the here proposed arrangements, one natural result seems to be, at any rate, in a judgeshire of a certain extent, and thence furnishing a certain quantity of judicial business,—the formation, though in a manner scarcely perceptible, of two classes of Deputes permanent, (already alluded to in Ch. xii.,) characterizable by the denominations of Expectant Stipendiaries, or for shortness say Stipendiaries, and Honoraries. By this distinction, considerable advantage seems to be promised, and no considerable inconvenience threatened.
Between the two, a sort of emulation seems likely to take place: emulation, and thence the competition for good repute: good repute, in the joint estimation of the fountain of promotion above, and of the Public-Opinion Tribunal all around: a sort of auction, in which the biddings would be in the shape of good desert: of good desert in the first place in the article of punctuality of attendance; that being in the power of every individual not incapacitated by sickness, and which, in the present case, may be considered as a modification of appropriate moral aptitude: in the next place, so far as in the power of each competitor, in the shape of appropriate intellectual and appropriate active aptitude.
Art. 7. Nor in this case does competition threaten to be productive of any such ill humour as in all cases is more or less liable to be the accompaniment of it. By no external mark will the distinction be characterized: on no man will either denomination be in such sort fixed, as that, if it should sit heavy upon him, it may not be in his power to withdraw himself from under it: the transition from the one class to the other, will be insensible; and as circumstances and inclination change, may have place successively in both directions.
Considerable, in this respect, will be the influence of the magnitude allotted to the minimum of the quantity of attendance (less than which, will not be consistent with continuance on the list) compared with that of the quantity of the attendance exacted at the hands of the Judge Principal. The less the quantity of attendance exacted, the greater would naturally be the number of those in whose estimate the distinction and power would outweigh the burthen of the labour: the greater the quantity exacted, the smaller the number of those in whose estimate the prospect of the still superior power, coupled with the remuneration in expectancy, would be necessary to the production of that same effect. If, by an advantageous change in his pecuniary circumstances, a functionary, to whose acceptance of the office the prospect of the pecuniary remuneration had originally been necessary, should have been led to set a lower value upon this expectancy than before, or at the same time a higher value on the labour than before, although a moderate degree of exercise might not be unpleasant to him, the result might be—his suffering himself to slide down into the honorary class. On the other hand, if, either by a disadvantageous change in respect of pecuniary circumstances, or by an increased relish for the occupation, a person whose place had originally been in the honorary class, should feel disposed to give increase to the quantity of this exercise, he might thus, if, on the part of the Judge Principal, he found no repugnance, pass without eclât, and without attracting any decided observation, out of the honorary into the expectant stipendiary class. In this way might public benefit be in perfect unison with private convenience: a union on which not only the utility but the stability of every institution so materially depends.
Art. 1. Except as here excepted, each Judge Principal, upon his responsibility, as per Ch. xii. Section 10, in addition to such as, on his entrance into office, in the judicatory in question, he finds already in existence, locates in the situation of Depute permanent, such others as he sees need to locate.
Art. 2. So soon as an all-comprehensive Code (non-penal and penal branches included, together with the system of procedure thereto belonging) shall have been established, the sole exception to locability in the situation of Judge Depute, is that which regards the profession of an Advocate. Of every person belonging to that profession, the name, ere he is permitted to practice, is set down upon the list of those who are admitted into that profession. No person whose name is, or has been upon that list, is it lawful for a Judge Principal, on pain of dislocation, to locate in the situation of Judge Depute permanent, unless his name has for [one] entire solar year, reckoning from the commencement of the then last solar year, been eliminated from that same list.
Art. 1. If in any one solar year, the service time of a Judge Depute permanent (as per Ch. xii. Section 28, Locable who) falls short of [one fourth] part of the maximum of a Judge Principal’s service time, during that same period, as per Ch. xii. Section 25, Attendance, his name is, at the first day of the ensuing solar year, eliminated from the list of Judge Deputes permanent: the conclusion being formed, either that the requisite closeness and punctuality of attendance is greater than he can endure, or that, in the eyes of the Judge Principal, he is deficient in appropriate aptitude, absolute or comparative.
Thus in an Immediate Judicatory, so also in an Appellate.
Art. 2. In other ways, a Judge Depute permanent is dislocable by the several causes of dislocation by which a Judge Principal is dislocable, as per Ch. xii. Section 30.
Thus in an Immediate Judicatory, so also in an Appellate.
Art. 1. If to the action of any cause of partiality, as per Ch. xii. Section 16, the situation of a Judge Depute permanent, to whom a suit is about to be consigned, is recognised by him as standing exposed, he will do well spontaneously to declare it, and on that account decline cognizance of it.
Art. 2. For the purpose of ascertaining the existence or non-existence of such exposure, if questions, as per Ch. xii. Section 16, be put to a Judge Depute, the Judge Principal, or some other Depute, will take his place in consequence, during the examination, and unless the cognizance of the suit be remitted to him, hear and terminate it in his stead.
For other matters, see Chapter xii.
[* ]Of the bed on which the Judge reposes, the feet are towards the entrance. On each side of the two sides and at the feet, rises a board in a vertical direction: on the two boards at the sides, slides, in an horizontal direction, another board called the bridge, performing the office-of a table. On this table lie the materials for writing, together with any books or papers of which there may be need. To exercise his function, the Judge has but to sit up in this bed.
[* ][Applicant.] In the Code of Procedure belonging to this Pannomion, no person is received in the character of a pursuer, till, on a personal application made by or for him, at the judicatory, and a statement made subject to interrogation, and under an appropriate penal sanction, in case of falsity,—he has in so far afforded security against its being groundless, or frivolous and vexatious. See Procedure Code, Ch. viii. Section 2, (vol. ii. p. 42.)