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 XXI.

Immediate and Appellate Judiciary Registrars.

Section I.

Fields of Service.

Enactive.

Art. 1. Coextensive with that of the Judge, is the Judiciary Registrar’s local field of service.

Enactive.

Art. 2. So that of his logical field of service.

Section II.

Relation to Judge.

Enactive. Instructional.

Art. 1. For the verity, correctness, clearness, all-comprehensiveness, conciseness, compactness, and symmetry, of the aggregate of the several minutes taken by him or under his direction, the Registrar is responsible. As to the original minutes, separately taken, of discourses, uttered in the Justice Chamber, whether by a testifier, litigant or extraneous, or by any other actors on the Judicial theatre, correctness and all-comprehensiveness are, of course, of all those qualities the only ones for which, in the nature of the case, he can be responsible.

Enactive. Instructional.

Art. 2. The Registrar is bound to make entry of every portion of discourse of which the Judge requires him to make entry: but, in such case, if to make entry thereof, would not, in his opinion, otherwise belong to his office,—as to everything thus entered, he notes, upon the face of the entry, all the several words thus set down, in compliance with the requisition so made by the Judge, calling upon the Judge, by his signature, to attest, or contest, the correctness of such note.

Expositive.

Art. 3. To cause obliterate any word, entry of which has been made, by, or by direction of, the Registrar would exceed the power of the Judge.

Enactive.

Art. 4. If, when a Judge Depute permanent sits, the Registrar does not either sit with him, or provide a Registrar Depute to sit with him, the Judge, Principal or Depute, appoints a Registrar Depute to sit for that day’s sitting: entry is made of the deficiency, and the Registrar is compensationally and punitionally responsible for it.

Enactive.

Art. 5. So, when a suit is allotted to a Judge Depute occasional.

Section III.

Effective Functions.

Enactive.

Art. 1. To the Registrar, in each Immediate Judicatory, belong three distinguishable classes of effective functions,—the Subjudiciary, or say Litiscontestational, the Providentiary, and the Financial.

Expositive.

Art. 2. By the Subjudiciary, or say Litiscontestational functions, understand those functions, need for the exercise of which does not take place till after the commencement, or in contemplation of an individual suit, or of an application which, being made to a Judge, may terminate in a suit. See Procedure Code, Ch. viii. Judicial Application.

Expositive.

Art. 3. By the Providentiary functions, understand those which are exercised—not on the sole occasion of any individual suit commenced, or intended to be commenced, but in contemplation of some future contingent suit, individually contemplated or not, on the occasion of which, it may happen that the matter in question, if recorded, may be of use. It is by the exercise of these functions that existence is given to the species of evidence styled pre-appointed evidence.*

Expositive.

Art. 4. By pre-appointed evidence, understand evidence by which information is preserved concerning any fact, which, as to a right of any kind, is of a nature to produce, or to contribute to produce, either a collative or an ablative effect.

Expositive. Instructional.

Art. 5. Of this species of evidence, the effect and object is the preventing well-grounded rights from being frustrated,—thence well-grounded expectations from being disappointed, and pain of disappointment from being produced,—for want of the creation or preservation of the appropriate grounds, on and by which they would and should respectively be established. Hence the appellation providentiary, applied to distinguish the functions, by the exercise whereof, existence and duration are given to this species of evidence.

Enactive.

Art. 6. Exceptions excepted, such pre-appointed evidence having its birth—not in the Judicatory, but in the office of the Local Registrar, as to whom see Ch. xxvi. Local Registrars, the effective functions relative to documents thus brought into existence, are no others than those which arise out of the communication made thereof from the Local Registrars to the Judiciary Registrar’s office.

Enactive.

Art. 7. Exception 1. Minutation, by which existence is given to extrajudicial narational pre-appointed evidence, in compliance with an appropriate application made for that purpose in the Judicatory: forasmuch as the minutative elementary function thus applied, belongs in common to the Judiciary Registrar of the subdistrict, and the local Registrar of the Bis-subdistrict: the applicant having his choice. But of a mass of this sort, when brought into existence by the Local Registrar, an exemplar will be transmitted by him to, and kept by, the Judiciary Registrar.

Enactive.

Art. 8. Exception 2. Minutation, as applied to the several discourses, held in consequence of application, made in any of the several modes in which it may be made, to a Judge, as such, without giving commencement to a suit. Instance the sort of application by which, as per Ch. xii. Judiciary collectively, Section 22, the exercise of the Judge’s pre-interpretative function is requested. As to this and the other modes of judicial application, see Procedure Code, Ch. viii.

Expositive.

Art. 9. By the Registrar’s Financial functions, understand those exercised in relation to the monies intrusted to his custody, for furnishing the pay of the several other functionaries belonging to the Judicatory, and defraying the several other expenses thereof.

Enactive. Expositive.

Art. 10. Included in the fund composed of the aggregate of these monies, will be the elementary masses following.

1. Produce of the mulcts imposed by the Judge.

2. Monies transmitted to the Judicatory by the Finance Minister, for the filling up of such deficiencies as have place in the supply afforded from the several other sources.

Section IV.

Elementary Functions.

Expositive.

Art. 1. By the Registrar’s Elementary functions, understand those, the conjunct exercise of which is, in the ordinary course of his business, necessary to the discharge of his effective functions, as per Section 3.

Expositive.

Art. 2. I. Elementary functions included in the Subjudiciary, or say Litiscontestational effective functions, are—

1. Auditive, as applied to oral discourse, for the purpose of minutation.

2. Inspective, as applied to written discourse, or to any other visible document, for the same and other purposes: or incidentally, to any visible occurrence that happens to have place.

3. Lective, as occasionally applied to written discourse.

4. Interrogative, on the occasion, and for the purpose, of minutation.

5. Minutative, whereby the result of the exercise of the above functions is committed to writing: to wit, either in the manifold way at once, as per Ch. viii. Prime Minister, Section 10, Registration System, or preparatorily thereto, in the ordinary way, by pen and ink.

6. Commentative, for the incidental purpose of giving elucidation to the result of the exercise of the minutative function: or to the percontative, argumentative, or opinative matter of the discourses of any other of the actors on the Judicial theatre: or to the similar matter, together with the imperative matter, of the discourses of the Judge.

7. Attestative or recognition-exacting. By this function, when minutation has been made of a portion of discourse uttered by a testifier, litigant or extraneous, his signature in acknowledgment of the correctness of the minute is elicited: to wit, after such discussion and modification as may happen to be necessary to preserve him from the insincerity of giving, as and for his discourse, anything which, in truth, is not so. See below, 11, Authenticative. For the mode of attestation, see Section 5, Minutation how.

8. Receptive: to wit, as to the several matters, communication of which comes to be made to the Judicatory from any other quarter.

9. Accersitive: to wit, in so far as any matters which, requiring to be communicated to the Registrar, require to be called for, in order to their being communicated.

10. Communicational: to wit, as to the several matters, of which communication comes or requires to be made from the Judicatory to any other quarter.

11. Authenticative: to wit as to indigenous portions of written discourse: indigenous with reference to the Judicatory. This function is in itself the same with the attestative.

12. Authenticative, as to portions of written discourse and other tangible objects extragenous: to wit, brought into existence in any other quarter than that just mentioned, and from thence brought thither.

13. Custoditive: to wit, as to portions of written discourse and other tangible objects, indigenous, as above.

14. Custoditive, as to portions of written discourse, and other tangible objects extragenous, as above.

15. Sub-directive: to wit, as to the official conduct of all ministerial judicial functionaries, by or through whose instrumentality the above functions minutative, receptive, communicational, and custoditive, are exercised: sub-directive, to wit, under the Judge.

16. Access-affording. In the exercise of this function, the functionary will afford access to all the several documents in his custody, whether for the purpose of simple inspection, of lection, or of transcription, as need may require: maximizing, in the instance of each person, the facility of access for these several purposes: always in so far as shall be consistent with the like facility to every other person, as also with the exclusion of preponderant evil, whether from the consumption of the keeper’s official time, or from obstruction to the exercise of his several other functions as above.

Enactive. Expositive.

Art. 3. II. Elementary functions included in the Providentiary effective functions, as applied to the documents emaning from the Local Registrars Office, are—

1. The Receptive: exercised by the receipt of those same documents.

2. The Acceptational: exercised in each instance by the minutation, with or without the delivery, of a document, testificative of the fact of such receipt. Name of this document, the word receipt, preceded by the name of the species of document received.

3. The Custoditive: exercised by the keeping of these same documents.

4. The Requisitive: exercised by requiring the delivery of them when not spontaneously delivered.

Enactive. Expositive.

Art. 4. III. Elementary functions included in the Financial effective functions, are—

1. The Receptive: exercised by the receipt of the money in question.

2. The Acceptational: exercised in each instance by the minutation, with or without the delivery, of a document, testificative of the fact of such receipt. Name of this document, a Money receipt.

3. The Custoditive: exercised by the keeping of those same monies.

4. The Requisitive: exercised by requiring the delivery of them, when not spontaneously delivered.

5. The Transmissive: exercised by the transference of them to other hands, in proportion as they are applied to their respective uses.

Section V.

Minutation, how.

Enactive. Expositive.

Art. 1. In the exercise of his litiscontestational functions, the Registrar commits to paper, not only the relevant discourses, which, while sitting in the Justice Chamber, have been heard by him, but also statements of all the several relatively influential occurrences, information of which has reached him: setting them down at the times at which they have respectively reached him.

Expositive.

Art. 2. By relatively influential, understand all such occurrences, by which the commencement or termination of a suit may come to be produced, or the course taken by it during its continuance, or the effect produced by it after its termination, modified.

Expositive.

Art. 3. Relatively influential occurrences include,—

1. All relatively influential acts, performed in the Judicial theatre, by parties, witnesses, or any other actors; or elsewhere, by any of the ministerial judiciary functionaries, stationary or missionary, or any other persons at large.

2. All relatively influential physical occurrences, to which it may happen to have had place, whether in the Justice Chamber or elsewhere.

Expositive.

Art. 4. By acts, understand not only positive, but negative acts: not only acts of compliance, for example, but also acts of non-compliance: for instance, an act of non-compliance in relation to a decree or order of a Judge.

Expositive. Instructional.

Art. 5. Subjects of concomitantly statistic minutation, are those occurrences which, as per Art. 3, have place at the moment in the Judicial theatre; subjects of subsequentially statistic minutation, are those which, having come into existence at some other time and place, have no otherwise been brought under the cognizance of the Registrar, than by means of information furnished to him at times respectively subsequent to those at which they respectively took place: the entries made of them respectively will be made either in different books, or of the one species of occurrence, on the left hand page, of the other, on the right hand page of the same book.

Expositive.

Art. 6. Certain acts there are, whereby existence is given to so many masses of written discourse, by the aggregate of which the business of judicature is in great part carried on. These acts are judicial operations, and the writings judicial instruments. For the diversifications of which they may be susceptible, see the Procedure Code, Ch. vi. All-comprehensive Arrangements.

Expositive.

Art. 7. Considered in respect of any influential information which it may be in the nature of them respectively to afford, these, amongst others, are moreover styled documents.

Expositive.

Art. 8. Unminuted Suits. Consideration had of the simplicity of the inquiry, and the comparative unimportance of the matter in dispute, the Legislature will determine whether suits of any and what description, may be heard and determined, without minutes taken of the evidence, as above: always remembering, that in so far as money is concerned, importance is not absolute—depending solely on the magnitude of the sum—but relative; relation had conjointly to the magnitude of the sum, and the pecuniary circumstances of the parties. Such suits style unminuted suits.

Expositive.

Art. 9. Of demands to which it may happen to be regarded as fit to be heard and determined on, as unminuted suits, examples are as follows:—

1. Demands on the ground of simple corporal vexation: vexation not accompanied with permanent bodily harm, inflicted or intended.

2. Demands on the ground of ordinary debt. Demands, claiming money on the ground of service rendered in the most frequently exemplified shape. Examples are as follows:—

1. Goods sold and delivered.

2. Serviceable labour, whether of body or mind, or both; performed for a price, whether determined or undetermined.

3. Lodging, with or without board, afforded.

Enactive.

Art. 10. But, forasmuch as, by reason of the situation of a party concerned, or other circumstances, it may happen that a case belonging to a sort not commonly worth recording, may present an adequate demand for recordation,—care will be taken that to any individual case ranked in the class of unminuted suits, minutation shall be applied, at the instance of any party, on payment of a price to the Equal Justice fund, as per Ch. xii. Section 13, Justice for the Helpless; or, if on account of the pecuniary circumstances of the party requiring it, or on any other ground the Judge sees reason, without payment of a price.

Enactive.

Art. 11. In an unminuted case, the evidence alone will be omitted: but of all other relatively influential circumstances and occurrences, such as the name of the Judge, the Registrar, the day, the names of the parties, the subject matter of the demand, the ground of the defence, if any, and the decree,—entry will be made: and moreover, an Incidental Complaint Book, as per Ch. xii. Section 18, ready for the eventual reception of complaints, will be at hand.

Section VI.

Attestation how.

Enactive. Expositive.

Art. 1. Necessary is this operation and the exercise of the corresponding elementary function, as per Section 4, to the securing of full and sufficient credence to the genuineness of a portion of discourse, delivered by any person other than the Registrar himself. The mode of exercising it is as follows:—

Whensoever, by word of mouth, a portion of discourse has been uttered, which is deemed to be of a nature to require that it be expressed in writing, and that entry be thus made of it, in some book belonging to the office, the Registrar, for the better assurance of the correctness and completeness of such entry, will present to the person whose discourse it was, or is supposed to have been, the minute, in which expression is thus given to it, calling upon him either to admit or deny the correctness and completeness of it.

Enactive. Expositive.

Art. 2. This being done by the Registrar, now as to the person whose discourse it purports to be. Relation had either to the whole of the minute so tendered, or to this or that part of it, one or another of the three following courses, he cannot fail to take. The alleged correctness and completeness of it, he will either admit, refuse, or evade the admission of: evade by silence, for example, or irrelevant or insignificant discourse.

Enactive. Expositive.

Art. 3. In case of admission, the Registrar will call upon him to give thereto in writing, the appropriate expression: to wit, at the end of the portion of discourse in question, writing his name in all its parts: if unable to write, making, instead of his name, the mark of a cross, as thus .|., or any other simple mark, such as no person, who has the use either of hand or mouth, can be at a loss to make: and to this mark the Registrar will, in his own hand, add the name of the person in question, as recognised by him, followed by the words, “his mark.”

Enactive.

Art. 4. So, likewise, if it be a portion of written discourse delivered in by him as his: in this case, to his name he will prefix the words, This discourse is mine, or simply my discourse.

Enactive.

Art. 5. So, likewise, if it be a portion of discourse, delivered in by him, as and for the discourse of some other person or persons, known or unknown: and if known, instead of the word mine, inserting respectively the name or names, description or descriptions, of these same persons.

Enactive.

Art. 6. In case of refusal or evasion, as per Art. 2., the Registrar will inform him, that, unless the faculty of amending it be desired by him, and afforded to him, as per Section 7, Minutation—Amendment how, the correctness and completeness of the minute will be considered as having been nevertheless inwardly and virtually recognised by him.

Enactive.

Art. 7. The Judge will thereupon either concur in testifying the recognition,—for example, by his signature to the words virtually recognised,—or, after hearing any such declaration on the subject, as any of the persons present shall have been desirous to make, he will take such course as the circumstances of the individual case shall have suggested, for establishing the existence of the matter of fact, the acknowledgment of which was thus evaded.

Enactive.

Art. 8. In so far as the individual denies either the correctness or the completeness of the minute in relation to the discourse actually uttered by him, by word of mouth, the Registrar, if, nevertheless, assured of its correctness and completeness, will make entry of such his assurance, and call upon any of the persons present to express, by his signature, each of them, his assent to, dissent from, or ignorance in relation to, its possession of those qualities, respectively.

Section VII.

Minutation—Amendment how.

Expositive. Instructional.

Art. 1. Of this operation, the eventual need grows out of the minutative and attestative functions. On the occasion of any discourse uttered, as per Section 6, what may happen is, that though by the utterer the correctness or completeness of the account given of it in the minute, is not questioned, he himself on recollection, for the purpose, real or pretended, of giving additional correctness or completeness to the statement made by himself, or, at the suggestion of some other person,—the Judge or the Registrar, for example,—may be desirous to make therein, in the way of addition, subtraction, or substitution, to wit, in any one or more of these ways, a more or less considerable change.

Enactive.

Art. 2. Exceptions excepted, in any such case the Registrar will afford the requisite facilities. But, for a standard of comparison, he will in every case keep, in the Registry, an exemplar of the minute in its original state: and of this original minute, he will add an exemplar, to every exemplar which he any-whither transmits, of the minute by which the amendment is exhibited.

Enactive.

Art. 3. On any such occasion, the mode of proceeding will be in manner following:—Antecedently to his departure from the Justice Chamber, if time and the quantity of the written discourse will allow, (if not, as soon afterwards as may be,) the Registrar, at the requisition of the individual, delivers to him an exemplar of such part of the matter of the record as purports to be composed of his statement, as above.

Enactive.

Art. 4. To this minute, within a time allotted on the delivery thereof by the Judge, of which time entry is made, the witness is at liberty to make amendments, in any one of three ways, to wit—

1. By giving, in the exemplar itself, expression to the several intended alterations, whether by addition, subtraction or substitution.

2. By delivering a separate paper, giving instructions for the making thereof.

3. By delivering another paper, with his desire as expressed on the face of it, that it may be accepted instead of the paper delivered to him, or instead of such sheet or sheets of it as he points out.*

Enactive.

Art. 5. On receipt of such amendments or instructions, the Registrar causes make a fresh set of manifold exemplars of the matter of the amendments, retaining for confrontation the minute in its original state: to the individual he delivers, to be retained by him, a manifold exemplar of the evidence in each of its states.

Enactive. Instructional.

Art. 6. The expense, occasioned by such amendments, will, according to the determination of the Judge, be borne either by the individual or by the public: regularly by the testifier by whom it was occasioned: but in consideration of his pecuniary circumstances, or of the exigencies of the case, it may, by the Judge, be placed to the account of the public.

Enactive. Instructional.

Art. 7. If it be not by the Registrar, or a Depute of his, that such scription is performed, the expense will, in either case, consist in the remuneration given to some appointed scribe, who will be paid at the rate of such or such a sum, for such or such a number of words: to the Judge it will in this case belong to take care, lest, for the undue augmentation of the profit to the scribe, or by wantonness or sinister design on the part of the individual in question, the quantity of the matter, receive undue increase.

Enactive. Instructional.

Art. 8. If, and in proportion as, through carelessness, wantonness, or sinister design,—obstruction, and thence evil to a preponderant amount, to the proceedings of the Judicatory, is produced or endeavoured to be produced, by any such individual, as above—to wit, either on the occasion of authentication performed by attestation, as per Section 6, or on the occasion of amendment, as per this Section—the Judge, for the repression of such abuse, will apply such punishment as in his judgment is necessary and sufficient, subject to any ordinance made in relation to this matter, in the Penal Code. For the mode of proceeding, see Ch. xii. Judiciary collectively, Section 18, Incidental Complaint Book.

Enactive. Instructional.

Art. 9. For a more precise, particular, and complete enumeration, description, and particularization of matters destined, on this occasion, to be entered in the Register, see the Procedure Code.

See also Ch. ix. Ministers collectively, Section 7, Statistic function.

Section VIII.

Securities for appropriate Aptitude.

Enactive.

Art. 1. When once, by or by direction of the Registrar, a word has been entered on the Register, to obliterate it, or allow it to be obliterated, in such sort as to be no longer legible, or to alter it, or allow it to be altered into any other word, would be an act of falsification, and as such punishable: so likewise the making addition of any word, at any succeeding time. By drawing a line of a different colour across, correction may, however, at all times be in so far applied to error in any shape, when discovered. But, in every such case, entry must be made of the fact of the correction, with the year, month, day of the month, and hour when made, and at length or by initials, the name of him by whom the correction is made.

Enactive.

Art. 2. Whatsoever entry is made by the hand of a Registrar Depute, is signed by him, with a sufficient designation of the person, in the same hand, at the same time.

Enactive.

Art. 3. To cause make on the Register any portion of written discourse, without the consent of the Registrar, belongs not to any other actor on the Judicial theatre. But, to any such actor it belongs, to frame or cause frame a minute of his own, and to tender it to the Registrar for his assent or dissent, as to its relevancy and correctness: and such assent or dissent, the Registrar is bound to signify, namely, with his family name, and name of office, at length, or by initials in the margin.

Enactive.

Art. 4. On the ground of alleged irrelevancy, injuriousness, or even criminality, in any shape, it belongs not to the Registrar to refuse or omit making entry of such assent or dissent: if the discourse be injurious or criminal, it will stand as evidence of the impropriety of him by whom it was made.

Enactive. Ratiocinative.

Art. 5. Designed to act as mutual checks upon each other, are the several official situations of the Judge and the Registrar. If, on the occasion of any suit, by negligence or collusion, the Registrar were to omit providing a Depute of his own to act with the Judge, the Judge, by the location of any person of his choice to officiate in the character of Registrar Depute, might on every such occasion deprive the interests of justice of the benefit of this check. To this reason it is, that while by Section 2, to prevent denial or delay of Justice, provision is made against any such deficiency, the Registrar who, by acceptance of his office, undertook for the prevention of it, is, by Section 2, Art. 4, made responsible.

Section IX.

Migration, none.

Enactive. Ratiocinative.

Art. 1. A Registrar does not migrate.

To prevent the formation of sinister connexion between two parties, it is not necessary that both should change place. The more intimate his acquaintance with the matter exhibitive of the proceedings of anterior times, in the same place, the greater will be a man’s aptitude as to the functions of this office.

For other matters, see Ch. xii.

[* ]As to this and other matters relating to evidence, see the author’s work on Evidence, in vol. vi. and vii.

[* ]Such as delineated in Arts. 3, 4, is the mode commonly employed, on the receipt and extraction of evidence, in the select committees of the English House of Commons. Witness, in the situation of testifier, the author’s own experience. Where the occasion warrants by its importance, the delay, vexation, and expense,—this mode might and should be practised in all Judicial, or other government inquiries: scarcely is it in any other.