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 XVIII.

Immediate Government Advocates.

Section I.

Fields of Service.

Enactive.

Art. 1. The same as that of the Judge is the Immediate Government Advocate’s local field of service.

Enactive.

Art. 2. Logical Field of Service. In all judicial cases, in so far as Government is a party, he officiates as substitute to the Government.

Enactive.

Art. 3. Except it be in a case in which Government is on one side of the suit, and the Sublegislature on the other,—the Government Advocate, by acting on behalf of any Sublegislature, acts on behalf of Government.

Expositive.

Art. 4. Cases, in which Government is a party, are either,

• 1. Non-penal cases.
• 2. Penal cases purely public.
• 3. Penal cases, publico-private.

Expositive.

Art. 5. I. Non-Penal cases in which Government is a party. These are, those in which, in respect of the aggregate mass of property belonging to the Government, as Trustee for the public, or this or that portion of that same aggregate,—judicial contestation has place, between the Government on the one part, and some individual or subordinate body on the other part; no crime in any shape being imputed, on the occasion, to the individual, on the Defendant’s side.

Expositive.

Art. 6. II. Penal cases purely public. These are, those in which no assignable individual having received special wrong, or say injury in any assignable shape, the sole party injured is the Government, as Trustee for the State.

Expositive.

Art. 7. Examples are or may be the following:—

1. Treason: participation with a foreign power, in acts or designs of hostility against the State.

2. Rebellion.

3. Evasion of Taxes.

4. Peculation: by undue means, producing, for gain to the individual, loss to Government.

5. False Testimony and other Offences against Justice: namely, in so far as no such special injury as above has place.

For the complete list, together with the expository matter, including correct definitions, and the Ratiocinative matter, see the Penal Code.

Expositive. Ratiocinative.

Art. 8. III. Penal cases, publico-private. These are those in which some assignable person having received special wrong in some assignable shape—the wrong, consideration had of the alarm or the ulterior danger, or both, to others, is considered as applying to persons in general, and as on that account presenting a demand, for suffering to be inflicted in the name of punishment.

Expositive.

Art. 9. Examples are the following:—

1. Homicide, except where justifiable.

2. Mutilation.

3. Disfigurement.

4. Disablement.

5. Highway Robbery—extortion by threats of immediate wrong by violence.

6. Robbery by Housebreaking.

7. Mendacious defamation.

8. Bigamy.

9. Forcible, or clandestine, or fraudulent abduction of a child from its parents.

10. Forgery, in relation to money, or transferable securities for money.

For a complete list, and expository matter, see the Penal Code.

Enactive.

Art. 10. In the exercise of his functions, the Government Advocate will be bound to officiate in the cases above-mentioned, on receipt of an appropriate mandate from the Judge, or an appropriate requisition from any Minister, in respect of demands produced by the business of such Minister’s Subdepartment; such requisition being countersigned by the Prime Minister. Names of the instruments, 1. Judges’ Government Advocate’s Service-requiring Mandate. 2. Ministers’ Government Advocate’s Service-requiring Mandate.

Enactive.

Art. 11. In any one of those classes of cases, as per Art. 4, of his own motion he may, and if in his opinion, the public service requires it, he will, make application to the Judge to be admitted to give commencement to a suit, or continuance to a suit, already commenced by other hands. Name of the instrument, Government Advocate’s admittance Requisition.

Section II.

Relation to Judge.

Enactive.

Art. 1. To the power of the Judge, as exercised by his several functions,—imperative, as per Ch. xii. Section 9, Elementary Functions, sedative, as per Ch. xii. Section 11, and aid-compelling, as per Ch. xii. Section 12,—the Government Advocate, in the same manner as any other actor on the Judicial theatre, or any private person, is subject.

Enactive. Expositive.

Art. 2. But, in case of misconduct in any shape on the part of the Judge, in a more especial manner than to any other such actor, to the Government Advocate does it belong to give information thereof to the several superordinate authorities: namely, to the Appellate Judicatory, by special and appropriate application, followed, if need be, by regular suit; and at the same time, through the medium of the Public-Opinion Tribunal, to the Legislative and Constitutive authorities, by any such means of publicity as the circumstances of the case afford.

Enactive. Ratiocinative.

Art. 3. On every such occasion, in virtue of his office, and in consideration of the special and appropriate means of information which, by reason of the situation and habits belonging to his office, he possesses,—it is matter not only of right, but of duty, for him to officiate: and, in case of any such misconduct, if it be sufficiently manifest, that neither the actuality nor the criminality thereof, were unknown to him, he may be sued, and made to suffer as an accomplice.

Enactive.

Art. 4. At sittings not constituted secret, the Government Advocate, in suits in which Government is not a party, has, like any other person, a right to be present. But, even in sittings so constituted, he has this right, exercisable in person or by depute.

Section III.

Functions in Non-Penal Cases.

Enactive.

Art. 1. In a non-penal case, a Government Advocate, acting as substitute to the Government in behalf of the State, performs the same service as a Law assistant, gratuitous or professional, to any private individual.

Enactive.

Art. 2. Exceptions excepted, in relation to any property, which, as belonging to the District, the Sublegislature thereof has at its special disposal, the Government Advocate acts as substitute for that same Local Government, in the same manner as for the General Government.

Enactive.

Art. 3. Exceptions are—

I. Where the General Government being on one side of the suit, the Local Government is on the opposite side.

Enactive.

Art. 4. II. Where, for the support of its interest in the suit, a special substitute is employed by the local Government. But in this case, unless in case of opposition of interests, as per Art. 3, the Government Advocate has concurrent authority with the Advocate of the local Government, in like manner as he has with a person in a purely public case, as per Section 4, and in a publico-private case, as per Section 5.

Section IV.

Functions in purely Public Penal Cases.

Enactive.

Art. 1. Exceptions excepted, in a penal case purely public, the Government Advocate is the established, and, in the ordinary course of things, sole pursuer.

Enactive.

Art. 2. Exceptions to his being sole pursuer are—

1. Where, on his own view of an offence committed in the Justice Chamber, the Judge has taken upon himself to convict and sentence, issuing the correspondent decrees opinative and imperative. This case will naturally be a rare one.

2. Where, on receiving an informative application from any other person, the Judge authorizes such person, and on his consent, orders him to continue it.

3. Where, by not regarding himself as having need of assistance from the Government Advocate, the person in question has, in the first instance, applied to be admitted as pursuer, and has been admitted accordingly.

4. Where, for the special purpose of the suit in question, the Government Advocate-General has deputed to serve as Government Advocate in any Judicatory, a person other than the Government Advocate of that same Judicatory.

Instructional. Ratiocinative.

Art. 3. If, in the case of any such offence, it depended on the Government Advocate alone, whether suit should be commenced, or when commenced, whether, or in what manner, it should be continued,—the power thus possessed by him being thus arbitrary would be much more efficient than the limited power of remission given, as per Ch. xxiv. Section 5. Dispunitive function, to the Justice Minister. To apply to it the above, together with all other apt checks, will accordingly belong to the Procedure Code: see Ch. viii. Judicial Application.

Enactive. Instructional.

Art. 4. In every purely public penal case in which a person at large has been admitted pursuer, it is the right of the Government Advocate, and if, in his opinion, the public service requires it, his duty, to act in that capacity in conjunction with such person: so likewise to the exclusion of every such person, if, on application for reason assigned, he has been thereto authorized by the Judge.

Enactive. Instructional.

Art. 5. Of the purely public cases in which it may be of use to the public service that a person at large should be admitted to act as pursuer, in lieu of, or in conjunction with, the Government Advocate, examples are as follows:—

1. If, and where, on condition of his bearing the expense of pursuit, the law has given to a person at large, on condition of the conviction of the defendant, remuneration in any shape, at the charge of the convicted person, or from any other source.

2. Where, from any motive, public or private, a person at large, for better assurance, without any such reward, is willing to defray the expense: and in this case, where no preponderant objection has place, regard for the public purse will dictate such admission.

Instructional.

Art. 6. On every such occasion, as well the Government Advocate as the Judge, will be upon their guard, lest, at the commencement or in the course of the suit, the pursuer, with or without concert with the defendant, should be purposely acting in any manner, in the view of frustrating or obstructing the effect, or any part of the effect, professed to be aimed at by the suit.

Section V.

Functions in publico-private Penal Cases.

Enactive.

Art. 1. In a publico-private penal case, the Government Advocate has concurrent authority with the person or persons specially injured.

Enactive.

Art. 2. In a publico-private penal case, from and after hearing the evidence, as it comes out in the course of the original inquiry, it will belong to the Judge to determine whether the continuance and termination of it shall be allotted to the individual or individuals in question alone, or to the Government Advocate alone, or to the one and the other in conjunction.

Enactive.

Art. 3. If, on the occasion of any such suit, an individual, alleging special injury to have been received by him, or one for whom he applies, demands, at the charge of a defendant, money or money’s worth, in compensation for such injury, his application for leave to act as joint pursuer will not be refused.

Instructional.

Art. 4. In this case, if he be able to defray the unavoidable costs of pursuit, the Judge will prefer allotting to him the conduct of the suit, unless, for prevention of undue favour towards a defendant, he deems it necessary to transfer it to the Government Advocate.

Section VI.

Functions as to Offences against Justice.

Enactive.

Art. 1. Whether the case be non-penal, or penal, to the Government Advocate it belongs, in a more especial manner, to watch over the interests of justice, by demanding, at the hands of the Judge, in the case of an offence against justice, committed by an individual on either side of the suit, a pecuniary mulct, the magnitude of which shall be in the joint ratio of the magnitude of the evil of the offence, of the profit reaped or aimed at by the offence, and of the pecuniary sufficiency of the offender. See Ch. xii. Judiciary collectively, Section 13, Justice for the Helpless.

Expositive.

Art. 2. By an offence against justice, understand an offence by which the attainment of any one of the ends, direct or collateral, of justice, is prevented or impeded.

Expositive.

Art. 3. To the attainment of the direct end of justice, impediment is opposed by falsehood, accompanied with evil consciousness, insincerity, or temerity of assertion. For expository matter, correct definitions included, see Penal Code and Procedure Code.

Expositive.

Art. 4. To the attainment of the collateral ends of justice, impediment is opposed by needless delay, and by all endeavours to obtain it.

So, by needless expense, imposed or endeavoured to be imposed, by any one party upon any other.

So, by needless vexation in any shape.

See Penal Code and Procedure Code, as above.

Section VII.

Money-requisitive Function.

Enactive. Expositive.

Art. 1. For engaging, at the hands of individuals, service necessary to the giving execution and effect to the law, in this or that shape, and in particular in the shape of evidence, the matter of reward, at the disposal of Government, will, in various cases, be found necessary; and, in divers of these cases, either the quality or the quantity of that same matter will necessarily remain unfixed by law.

For this purpose, a fund having been provided by the Legislature, and placed at the disposal of the Finance Minister, (such portions excepted, as under Ch. xii. Judiciary collectively, Section 13, Justice for the Helpless, are provided for the service therein mentioned,) to the Government Advocate of the Immediate Judicatory, in which the need arises, it belongs, so far as is needed for the occasion in question, to make application to the Judge, requesting his Money-requisitive mandate—requiring at the hands of the several persons exercising the custoditive function, in respect of the appropriate part of the above-mentioned fund, payment of the sums deemed proper, to the use of the person or persons for whom it is needed.

Enactive. Instructional.

Art. 2. In the instrument of requisition, according as, at the time of issuing it, the service in question has or has not been performed, entries will be made under appropriate heads.

Case I. The service needed, as yet unperformed: object of the reward, procuring performance: heads in this case will be the following:—

1. Nature of the service needed.

2. Occasion of the need.

3. Reward proposed, its quality.

4. Reward proposed, its quantity.

Enactive.

Art. 3. On receipt of any such petition, the Judge forthwith delivers it into the hands of the party or parties on the other side, calling upon them for an appropriate instrument, styled their Paper of Observation on the Government Advocate’s Money-requisitive petition.

Enactive. Instructional.

Art. 4. In this Observation paper, the heads will be the following:—

1. Simple approbation or acquiescence.

2. Simple disapprobation—or

3. Modified approbation.

4. In case of disapprobation, or modified approbation, appropriate reasons.

From silence, at the end of a time appointed, acquiescence is inferred.

Enactive.

Art. 5. The Judge thereupon will either refuse the reward simply, or issue an appropriate instrument containing such description of the service and the reward as the occasion shall appear to him to require. Name of the instrument, a Reward-offering mandate.

Enactive.

Art. 6. Case II. The service already and without any such invitation performed. In this case the Government Advocate proposes in terminis, the mandate, by execution of which the proposed reward, according to the nature of it, will be conferred. Name of the instrument, a Reward-conferring mandate. Heads, and proceedings thereupon, will be, mutatis mutandis, as in Case I. as per Arts. 3, 4, 5.

Enactive. Instructional.

Art. 7. Exceptions excepted, proceedings are in this, as in all other cases, open, as per Ch. xii. Judiciary collectively, Section 14, Publicity, &c. Cause for exception by temporary secrecy may in this case be—danger, lest, from publicity, a delinquent derive means of evasion.

Enactive. Instructional.

Art. 8. This function, a Government Advocate is bound to exercise, wheresoever, in his opinion, preponderant evil, in the shape of failure of justice, would otherwise have place; or, with an adequate degree of probability, be likely to have place.

So, if directions to that effect have been received by him from the Government Advocate General.

Enactive. Instructional.

Art. 9. In every case, to prevent abuse in all shapes from the exercise of this function, will be among the Judge’s, as also the Government Advocate’s and the Eleemosynary Advocate’s especial cares: in particular, abuse, in respect of undue advantage, openly or secretly, reaped by individuals, from needless reward, thus paid, at public expense, as for public service: especially in publico-private cases.

Enactive. Instructional.

Art. 10. On this as on other parts of the field of government, it may be that reward, as per Ch. ix. Ministers collectively, Section 15, Remuneration, may, on occasion, consistently with justice and economy, be conferred for extraordinary service, even though not invited, but already and spontaneously rendered. If, on the field of justice,—to the Immediate Government Advocate, the Eleemosynary Advocate, or the Government Advocate General, as the case may be, it will belong, for reason assigned, to make requisition for such retroactive reward.

Ratiocinative. Instructional.

Art. 11. In regard to the matter of reward considered as employed in this branch of the public service, there are several dangers that require to be guarded against.

One is, the giving reward where the service might be obtained without reward: obtained consequently without expense in that shape, or to a greater amount in any other shape. Say reward needless.

Another is, where reward to a certain amount is necessary, and in a preponderant degree beneficial, the giving it in an amount greater than that same necessary and beneficial amount.

A third is, the giving it in such sort, as to give birth to offences of the very same species as those which the reward is employed in the endeavour to suppress.

Another point to be considered is, to what species of service the reward shall be attached.

On this occasion these species of service present themselves: namely, 1. Information, i. e. original evidence. 2. Subsequential evidence. 3. Prehension. 4. Information of means of prehension. 5. Information of means of securing execution. 6. Prosecution, meaning legal pursuit.

Instructional.

Art. 12. As to information or original evidence.

By the practice of attaching reward to service in this shape two effects of an opposite nature, maleficial and beneficial, are liable to be produced.

1. The maleficial is, the giving birth to the offence, by inducing one person to draw another into the commission of it, for the purpose of obtaining the reward, by information given of the offence when committed.

2. The beneficial effect is, the throwing difficulty in the way of criminal confederacies, by preventing men who otherwise might become confederates in criminality, from reposing in one another the confidence necessary for that purpose.

An object of endeavour will here be,—how to exclude the maleficial, retaining at the same time, with as little loss as may be, the beneficial effect.

Much will depend upon the class of offences to which the offence in each case belongs.

Instructional. Ratiocinative.

Art. 13. In regard to a publico-private offence, the injury will naturally of itself furnish an informer, and in his person, in so far as it has happened to him, to have been with relation to it, a witness,—an agent contributing to the prehension of the offender, or of anything capable of serving as a source of conviction-promoting real evidence.

It will, at the same time, have a tendency to furnish in the person of that same individual, a prosecutor—a pursuer.

But to this tendency there will always be a check, more or less efficient, according to the condition in life and pecuniary circumstances of this same injured party: namely, the delay, vexation, and expense attached to the exercise of this function—attached whether by natural only, or by artificial, superadded to natural causes.

The less the quantity of evil which in this shape stands attached to the function, the less will be the need, and thence the use, of reward attached to public service in this shape. If matters can be so managed, as that from burthen in the shapes above-mentioned, the injured party shall be exonerated altogether, all such exoneration will with no small degree of efficiency, operate in the character of reward. The reward held out by the chance of compensation, will, in so far as a fund capable of affording it is in existence, and within the reach of the hand of justice, be a branch, though but a contingent one, of the natural reward: of the reward naturally attached to the service. The pleasure of vengeance will, at the same time, afford another, and that a never-failing one: a reward, valuable in proportion to the strength of the corresponding appetite in the breast of the individual injured.

The result is—that so far as can be avoided, whatever matter of reward is thought fit to be granted for conviction-promoting information should, if determinate in quality, not be fixed or limited in quantity, by any general ordinance: nor at any rate, the receipt of it, made virtually absolute, and clear from all condition, over and above the delivery of the information or testimony, and the conviction of the delinquent.

If not only the shape be determined, but the quantum fixed, as also the condition determined as above, the natural consequence is, that regular and determinately grounded calculations will be made. From the practice of such calculations, two distinct evils will take their rise.

Instructional. Ratiocinative.

Art. 14. 1. In a case in which the reward will be clearly seen to be inadequate, it will be plain to all concerned, that no information will be given: and thence, that so far as depends upon the mutual perfidy, as between confederate and confederate, no danger will attach upon confederacy from this source.

2. In a case in which the reward is clearly seen to be adequate, it will operate as a source productive of delinquency, in the shape in which it is employed under the notion of preventing it: by the more artful of two malefactors, another who but for him, might have remained in innocence, will every now and then be inveigled into the commission of the crime, for the purpose of his being informed against, and convicted, that the reward held out for information, followed by conviction, may be earned.

Instructional.

Art. 15. If the service for which the reward is proffered, is that which is rendered by judicial pursuit—pursuit carried to the length of conviction,—evil consequence in a variety of shapes is the result.

The quantity of the expenditure in this shape must be profusely large: large in itself, absolutely considered; large, when relatively considered, relation had to what would suffice for the production of information, or conviction-producing evidence, or both.

The quantity, how profuse soever, will still be insufficient in many an instance.

Instructional. Expositive.

Art. 16. Now as to the plan to be pursued for the production of the beneficial, without producing the maleficial effect.

For the production of the beneficial effect, namely, the preventing of those who would otherwise be confederates in crime, from reposing in each other the confidence that would be necessary for that purpose, it is not necessary that any one should stand absolutely assured, that at all events, any other would in case of effective information, stand assured of receiving the matter of reward in a determinate shape and quantity: without prejudice to this effect, the receipt might be left subject to a variety of contingencies, chosen for the purpose of putting an exclusion upon the maleficial effect. Let it be but understood, that in case of sufficiently assured need, the reward will be offered and given, though it be at the same time understood that if need do not have place, no reward will be given; this persuasion will be sufficient to create and preserve the salutary apprehension in minds in a certain degree disposed to calculation: while in minds to a certain degree indisposed and unused to calculation, no degree of determinateness given to the proffered reward would suffice to produce this same salutary effect.

Section VIII.

Attendance.

Enactive.

Art. 1. In a non-penal case in which Government is a party, the Government Advocate, on every occasion, in person or by Depute, attends of course.

Enactive.

Art. 2. So, in a purely public penal case, on every occasion after the initiatory application, if made by any other person, as per Procedure Code, Ch. xii.

Enactive.

Art. 3. So, in a publico-private penal case, when thereto required by the Judge.

Enactive.

Art. 4. Such attendance may be required by the Judge, either of his own motion or in compliance with a petition from a party specially interested.

Section IX.

Locable who.

Enactive.

Art. 1. Exceptions excepted, when among those who have paid attendance in the Inspector’s gallery, there are those who, being of the age of 21 years, have thus attended in the character of probationary lawyers for two years, no person shall be locable in the office of Government Advocate, until he has so attended for two years: when there are those who have attended for three years, no person who has not attended for three years: and so on to five years: after which all must have attended five years.

Enactive.

Art. 2. An exception is—the case of those who, antecedently to the existence of persons so qualified as above, have served in the situation of Government Advocate Principal for not less than one year.

For other matters, see Ch. xii. Judiciary collectively.