The Online Library of Liberty

A project of Liberty Fund, Inc.

• Book I.
• Preface.
• Introduction.
• Chapter I.: General Division of the Aggregate Body of the Law.
• Chapter II.: Constitutional Law.
• Chapter III.: Civil Or Distributive Law. *
• Chapter IV.: Penal Law.
• Chapter V.: Procedure Law. †
• Chapter VI.: Financial Law.
• Chapter VII.: Prescriptions Or Bearings of the Other Codes Or Branches of Law, to the Constitutional Code.
• Chapter VIII.: Public-opinion Tribunal.
• Chapter IX.: Good Rule and Bad Rule.
• Chapter X.: Corruption.
• Chapter XI.: Delusion.
• Chapter XII.: Fiction.
• Chapter XIII.: Factitious Honour.
• Chapter XIV.: Established Religion—none.
• Chapter XV.: Supreme Constitutive.
• Chapter XVI.: Supreme Legislative.
• Chapter XVII.: Supreme Operative.
• Book II.
• Preface to the Original Edition of Book II.
• Chapter I.: Territory of This State, Name, Situation, Boundaries, Divisions.
• Chapter II.: Ends and Means.
• Chapter III.: Sovereignty, In Whom. *
• Chapter IV.: Authorities.
• Chapter V.: Constitutive Authority. *
• Chapter VI.: Legislature.
• Chapter VII.: Legislator’s Inaugural Declaration. *
• Chapter VIII.: Prime Minister.
• Chapter IX.: Ministers Collectively.
• Chapter X.: Defensive Force.
• Chapter XI.: Ministers Severally.
• Chapter XII.
• Chapter XIII.
• Chapter XV.
• Chapter XVI.: Quasi-jury.
• Chapter XVII.
• Chapter XVIII.
• Chapter XIX.: Government Advocate General.
• Chapter XX.: Eleemosynary Advocates.
• Chapter XXI.
• Chapter XXII.
• Chapter XXIII.
• Chapter XXIV.
• Chapter XXV.
• Chapter XXVI. *
• Chapter XXVII.
• Chapter XXVIII.
• Chapter XXIX.
• Chapter XXX.
• Chapter XXXI.
• Appendix.
• No. I.
• No. II.
• No. III.
• No. IV.
• No. V.
• No. VI.
• No. VII.
• No. VIII.

CHAPTER XV.

Judge Immediate Deputes Occasional.

Section I.

Fields of Service.

Enactive.

Art. 1. The fields of service, or jurisdiction of an Immediate Judge Depute occasional, are, on the occasion of each suit, marked out and determined by the act by which he is located: and thence by the suit or suits for the hearing and determination of which he is located.

Instructional.

Art. 2. Of Judge Deputes permanent, the institution has but one final cause—namely, the prevention of delay, by whichsoever of its two causes produced: delay in respect of the progress made in such suits to which commencement has been already given: and delay in respect of the commencement of such suits to which commencement has not been given.

Of Judge Deputes occasional, the institution has two final causes: namely, the minimization of delay as above; and the giving the judicial cognizance of the suit in question to a person, other than the persons occupying in the Judgeshire in question, the several situations of Judge Principal, and Judge Depute permanent. A desire to this effect may have had for its cause, either of two opinions: 1, an opinion of the inaptitude of those official Judges in the aggregate, or of that one, by whom it is foreknown or conjectured that the suit would be taken in hand: or 2, an opinion of extraordinary and comparatively superior relative aptitude, as having place, in the instance of this or that individual at large, of whom, for the purpose in question, proposition is accordingly made.

Section II.

Term of Service.

Enactive. Instructional.

Art. 1. Of an Immediate Judge Depute occasional, the term of service is, on each occasion, marked out by the act by which he is located. He may be located, either for the suit, or for the day: if for the day, it will be for the hearing and determining such suits as shall come before him in the course of that same day: or any such suit as, after having been commenced on a former day shall, contrary to expectation, at the close of it, remain undetermined.

Instructional.

Art. 2. Exceptions excepted, a Judge Principal will avoid giving, unless in case of necessity, to a proposed Depute, cognizance of a suit which does not present a promise of its termination in the course of that same day.

Enactive. Instructional.

Art. 3. An exception is, where it is on application, or by free consent, of the parties on both sides, that a Depute occasional receives his deputation. For in that case, whatsoever be the number of days that the suit requires, following or not immediately following one another, sittings may be continued by him, till the suit has received its termination.

Instructional.

Art. 4. Exceptions excepted, as per Art. 3, only in case of an extraordinary influx of suits, so great that the time of the Deputes permanent, if more than one, will not suffice to prevent accumulation, with the consequent delay,—will the Judge Principal, in addition to such Deputes permanent, locate any occasional Depute. Thus is provision made against superfluous and sinecurist Judge Deputes permanent.

Instructional. Expositive. Exemplificational.

Art. 5. Of the subject matter of the sorts of suits, the individuals of which are most likely to be apt for being committed to the cognizance of a Depute occasional, in the expectation that on one and the same day, suits in considerable numbers may be made to receive their termination, examples are the following:—

1. Simple corporal vexation, in any of its ordinary shapes.

2. Simple vituperation, as distinguished from specific defamation.

3. Small Debts, on any of the ordinary accounts.

For definition of Nos. 1 and 2, see Penal Code.

Section III.

Locable, who.

Instructional.

Art. 1. In the choice of a Judge Depute occasional, for the purpose of this or that individual suit, the Judge Principal, it is expected, will locate by preference, a person proposed or freely approved by the parties on both sides, if any such person, not manifestly unapt, can be found willing thus to serve.

Ratiocinative.

Art. 2. If not approved by all parties, the approbation of one or more will be a reason rather for rejection than for choice: since, by such partial approbation, on the part of those who choose, ground will be afforded for suspicion of a correspondent partiality on the part of the object of their choice.

Section IV.

Powers.

Enactive. Instructional.

Art. 1. Coercive powers, whether for means of execution, or for means of probation, the Judge will, in the deputation instrument, either communicate or not, to a Depute occasional, as to such Judge shall seem most meet. Powers for means of probation may be communicated without powers for means of execution, or powers for means of execution, without powers for means of probation.

Expositive.

Art. 2. Of coercive means of probation, examples are—

1. Accersition, or say hither-calling mandates, transmitted to proposed witnesses, and other supposed evidence-holders.

2. Prehension mandates, whether applied to supposed evidence-holders, (including proposed witnesses,) or to things in quality of sources of oral or written evidence.

3. Scrutative, or say search-commanding mandates, whether applied to persons or things.

Expositive.

Art. 3. Of coercive means of execution, examples are—

1. Prehension mandates, having for their subjects, whether persons, or things corporeal, or say real, immoveable or moveable; or things incorporeal, or say fictitious, such as detached rights.

Instructional.

Art. 4. Of the diversification of which these same prehension mandates are susceptible; see for examples those mentioned in Ch. xii. Section 8, Functions common to Judges.

Enactive.

Art. 5. If it be by consent of parties that the individual in question is located, the Judge is by such consent exonerated from compensational responsibility, as towards any such consenting party, for any mis-use or non-use of any power so communicated.

Enactive. Instructional.

Art. 6. In cases in which such coercive powers, whether for means of probation or for means of execution, are conferred,—they will be conferred by mention made of them respectively in the deputation instrument by which the Depute is located.

Enactive. Instructional. Ratiocinative.

Art. 7. That no needless delay be caused, either by his death, sickness, or absence from the principal Justice Chamber, on out-door duty, (as per Ch. xiii.,) the Judge Principal will take care that there shall be always one Depute permanent at least, furnished by him with appropriate powers for location of Deputes occasional, with requisite powers as above.

Enactive.

Art. 8. Of his own authority, neither on the body nor on the property of any individual, other than the parties joining in the request or consent for his appointment, can a Judge Depute occasional exercise any act of power for the purpose either of evidence or of eventual execution. For any such purpose he will make application to the Judge Principal; and of the fact of such application, as also, of the result, entry will be made on the Record.

Section V.

Referees deputable.

Enactive. Expositive. Ratiocinative.

Art. 1. If on any occasion, the parties should agree to constitute on each side an arbitrator; the two arbitrators, to secure a majority choosing an umpire,—the arbitrators and the umpire together, are termed referees. These three referees, the Judge, if he thinks fit, may constitute, for that occasion only, so many Judge Deputes occasional: and to the decrees, opinative and imperative, of the occasional Judicatory thus formed, his sanction may be given by his signature.

Without the addition of an umpire, the referee of a defendant in the wrong, might, by mere inaction, produce the effect of a decision in his favour.

Enactive. Ratiocinative.

Art. 2. Neither of a purely public penal, nor of a publico-private penal, case, (as to which see the Penal Code,) can the cognizance be committed to Referees. The security of the public against malefactors must not be placed at the mercy of those to whom it may happen to be of the number of those same malefactors.

Enactive. Instructional.

Art. 3. The proceeding before referees will stand in the place of the original inquiry, before a Judge Principal. It may accordingly, if the Judge thinks fit, at the instance of any party or a majority of the referees, be followed by the recapitulatory inquiry before the Judge, with a Quasi-Jury, as per Ch. xvi. Section 1.

Enactive. Ratiocinative.

Art. 4. Attendance not being, without preponderant inconvenience, compellable on the part of the referees or any of them, the proceedings, but for effectual provision to the contrary, might at any time, by the inaction of any two of them, be, for an indefinite length of time, or for ever, stayed. For remedy, the Judge, at the instance of a party on either side, may proceed either in the way of original inquiry; or in the way of recapitulatory inquiry as above: or a substitute may be appointed in the same manner as the original functionary was appointed.

Enactive.

Art. 5. So likewise in case of death, or continued incapacity, by reason of sickness, on the part of a referee.

Enactive.

Art. 6. In a suit before referees, the Umpire will officiate as Registrar.

Enactive. Ratiocinative.

Art. 7. But, to obviate deperition, through negligence or sinister design, the record will, from first to last, be subjected to the inspection, and for every purpose, to the power, of the ordinary Registrar.

Enactive.

Art. 8. The proceedings will, in ordinary, be private. But, at the will of any two of the three referees, they will at any time be carried on in public.

Instructional. Ratiocinative.

Art. 9. To obviate the keeping the public Registration establishment encumbered with useless matter, the Legislature will make the requisite arrangements for the elimination of these records, as well as others, so soon as all demand for them, for the eventual proof of falsehood, or of wrong in any other shape, or right in any shape, shall have been at an end: saving any such memorandums as may be of use towards an all-comprehensive statistic history of the Judicial Establishment.

Enactive. Ratiocinative.

Art. 10. Coercive powers for means of execution, (as to which see Section 4, Powers, Art. 3,) the Judge may confer on the Referee Judicatory; for means of probation, not: for, if yes, parties might, by a collusive suit, instituted for the purpose, or on the occasion, of a really contested suit, elicit from persons at large, under the name of evidence, information productive of wrong, in all manner of shapes, to the proposed Evidence-holders or others.

Instructional. Ratiocinative.

Art. 11. Arbitration is thus a species of arrangement which cannot under any Code, without very pernicious deficiency, be left unprovided for.

In a Code framed upon the principle of this present one, true it is—that the frequency of the demand for the application of it to practice, will not, naturally speaking, be near so great as under any as yet existing established system of law. Still the demand for it cannot altogether be superseded, particularly in cases of complicated accounts between commercial men, or of distribution of large masses of property among claimants, by different titles.

Instructional. Ratiocinative.

Art. 12. Under arbitration, unless the requisite support be given to it by law, two deficiencies unavoidably have place: want of power to secure the attendance of witnesses; and want of power to give execution and effect to the award. Of these two defects, the first will not be productive of any evil consequences in those cases where there are no extraneous witnesses, or none but what can be made forthcoming, without the aid of the compulsory power of the Judge. But the other may have place in any case.

Against this latter defect, the English law provides a remedy, such as it is, by adding (to use the phraseology of the present Code) the imperative decree of the Judge, to the opinative decree pronounced by the arbitrator. But this mode of escaping from the clutches of the law-learned brotherhood, could not but be in no small degree unacceptable to them. It was the work of Statute law, and not till the reign of William the Third was it forced upon them. They have accordingly embraced every occasion for clogging it with technicalities, diminishing the efficiency of it by factitious expense and delay, and thus bringing it into disrepute.

Section VI.

Remuneration.

Enactive.

Art. 1. If proposed, or freely agreed to, by the parties on both sides, a Depute occasional, located by consent of parties, does not stand inhibited from the acceptance of remuneration, to any such amount and in any such lawful shape, as shall have been agreed on.

Enactive.

Art. 2. So, neither a Referee.

Instructional. Ratiocinative.

Art. 3. On this occasion, it will belong to the Judge Principal, to be upon the watch, and to take whatsoever measures may be necessary, to prevent all prolongation of time, for augmentation of reward.*

Enactive. Ratiocinative.

Art. 4. Lest more reward be secretly received from the one side, than from the other, the amount of what is given on each side will, on this occasion, be judicially ascertained. Receipt of remuneration, in any shape or quantity, other than what has been judicially declared, will be corruption.

Section VII.

Partiality obviated.

Enactive.

Art. 1. In relation to any supposed interest, self-regarding or sympathetic, a Judge Depute occasional is subjectible to interrogation, and, in consequence, liable to be divested of the cognizance of the suit, in like manner as a Judge Depute permanent, as per Ch. xiv. Section 8.

Instructional. Ratiocinative.

Art. 2. But for the restriction thus imposed, with or even without confederacy with a Judge Depute occasional, appointed at their instance for the purpose, ill-disposed persons might, in this way, by a fictitious suit, obtain undue advantage, in any one of a variety of shapes, to the injury of third persons. Against any such mischievous enterprise, the Judge Principal will accordingly be on his guard.

For other matters, see Chapter xii.

[* ]Let England here again be a warning to the world. In the Judicatories calling themselves Courts of Equity, the factitious length to which the examinations are drawn out by this sinister profit, is not the least efficient of the causes of that delay by which those judicatories stand distinguished above all others. In the Court of Chancery in particular, abuse in this shape is matter of such notoriety, as would long ago have driven out of their situations, overwhelmed with just reproach, all concerned in the practice, if power, impunity, and rapacity, did not so effectually steel men against shame. A sort of under judges, called Masters, pay themselves thus by the hour, whether they sit or do not sit, themselves or their clerks, the whole or some small part of the time. Of three appointments made and paid for, for three distinct days, it would not only be a loss to the practisers on both sides, but an injury to the master, and the master’s master, if the two first were kept. If, in such a state of things, complaint of abuse could ever be made by any one of the thousands who are ruined by it, the only man to whom it could be made, is the man who derives the greatest profit by it,—the Chancellor; who gives to any man he pleases this faculty of irresistible and unpunishable pillage: the man by whom all these masters, twelve in number, are appointed: all with enormous salaries, over and above what is thus pocketed.