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 XXII.

Appellate Judicatories.

Section I.

Appellate Judges, who.

Expositive.

Art. 1. By an Appellate Judge, understand a Judge having cognizance of Appeals.

Expositive.

Art. 2. By an appeal, understand an application made to a Judge, superior in grade and power, by a suitor in an Immediate Judicatory subject to his authority, alleging error, in a specified shape, as having had place in the conduct of a Judge Immediate, in relation to a particular suit, and thereupon claiming relief, in some form specified, according to the nature of the case, at the hands of the Judge so appealed to.

Enactive. Expositive.

Art. 3. A ground for appeal may be constituted by inaction, as well as by action: of the one as well as of the other, on the part of a Judge, injustice may alike be the result. As to this, see Section 3.

Section II.

Fields of Service.

Enactive.

Art. 1. Of the service of an Appellate Judicatory, the local field includes in it the local fields of service of a certain number of Immediate Judicatories.

Enactive.

Art. 2. So, the logical field: except in so far as modified by the provisions contained in this, and the ensuing sections.

Enactive.

Art. 3. Exceptions excepted, to no Appellate Judicatory belongs any immediate jurisdiction.

Enactive.

Art. 4. Exceptions are—

1. Complaints of misconduct, in any of the shapes mentioned in Ch. xii. Section 18, Incidental Complaint Book.

2. Non-transmission of the Record, or vicious state thereof, as per Section 4, Art. 2, here ensuing.

Section III.

Subject Matters of Appeal.

Enactive. Expositive.

Art. 1. Of an Appeal, and thence of the service of a Judge Appellate, the subject matter is either ordinary or incidental.

Enactive. Expositive.

Art. 2. By the incidental subject matter of an Appeal, understand misconduct in any shape mentioned in the provisions relative to the Incidental Complaint Book, as per Ch. xii. Section 18.

Enactive. Expositive.

Art. 3. The ordinary subject matter of an Appeal is either alleged misdecision or alleged Quasi-misdecision, on the part of the Judge Immediate.

Expositive.

Art. 4. By Quasi-misdecision, understand any act of the Judge, negative acts as well as positive included, whereby, otherwise than by definitive decision, wrong the same in effect, as might have been produced by definitive misdecision, is produced.

Enactive. Expositive.

Art. 5. Of the ways in which, without definitive misdecision, the wrongful effects producible by it are capable of being produced, examples are as follows:—

1. Denial, direct or virtual, by act positive or negative, of necessary or material means of proof or disproof. By virtual denial, understand non-feasance, in any instance in which feasance is prescribed by justice.

2. Or, of any such eventually necessary means of execution, for the execution of such judicial orders as the nature of the case calls for: provisional prehension of the person or goods of a defendant, for example.

3. Or, of the judicial service, necessary to the enforcing of compliance with any such judicial orders: compliance, whether at the hands of parties, witnesses, judicial functionaries, or persons at large.

4. In particular, of any means of mutual communication, necessary to such compliance, on the part of any such persons, as above, as between one another, or between any of them and the Judge.

5. Or, of due execution of definitive decrees actually pronounced, supposing them such as the nature of the case demanded.

Note that in every instance, necessary to communication, whatsoever be the objects between which it is to have place, is the appropriate quantity of time requisite.

Enactive. Expositive.

Art. 6. Of the means whereby, in an indirect way, ultimate misdecision is producible as above, examples are as follows:—

1. Undue delay, vexation, and expense: 1. delay practised or permitted, in consequence of which, means of probation or execution perish, are deteriorated, or become unobtainable; 2. vexation inflicted or permitted to be inflicted; 3. expense imposed or permitted to be imposed, on persons destitute of the means of defraying it, and of thereby keeping themselves in the way of obtaining justice.

2. Precipitation: namely, by this or that judicial operation, the performance of which has for its effect, the preventing the performance of this or that other operation, the performance of which was necessary to right decision: for example, the obtainment of the necessary means of probation.

Enactive.

Art. 7. For explanations and provision in detail, as to these several matters, see the Procedure Code.

Section IV.

Grounds of Decision.

Enactive.

Art. 1. Exceptions excepted, in an Appellate Judicatory, the sole grounds of decision receivable are as follows:—

1. The matter of the record, as transmitted from the Immediate Judicatory: in which matter is contained the whole of the evidence belonging to the case.

2. Argumentation heard from the mouth of the parties or their assistants, gratuitous or professional, on both sides of the suit, or parties and assistants likewise: which argumentation has for its sole basis, as above, the matter of the record, or any portion of it.

Enactive.

Art. 2. Exceptions are:—

1. If no record at all has been transmitted from the Immediate Judicatory.

2. If, by an Appellant, the matter so transmitted is objected to, as being in a material degree incomplete or incorrect.

In these two cases, also, Appeal may be received.

Enactive.

Art. 3. For supply of evidence, the existence of which has not been discovered till subsequently to the definitive decree pronounced in the Immediate Judicatory, the Judicatory to be applied to is—not the Appellate, but the Immediate Judicatory.

Enactive.

Art. 4. So, if not till subsequently to the delivery of the definitive decree of the Appellate Judicatory, or even subsequently to execution given to it.

Enactive.

Art. 5. At the Immediate Judicatory itself must have been delivered all evidence, on which Appeal therefrom, complaining of alleged Quasi-misdecision, is grounded: unless the receipt, recordation, or transmission of such evidence, or any material part thereof, be directly or virtually refused.

Section V.

Quasi-Jury necessary.

Enactive.

Art. 1. As on the occasion of a recapitulatory examination in an Immediate Judicatory, so on the occasion of the examination in an Appellate Judicatory, necessary to the validity of what is done, is the presence of a Quasi-Jury, as well as of such Judicial Inspectors as the place and time afford.

Enactive.

Art. 2. Exceptions excepted, from no definitive decree, pronounced otherwise than on a recapitulatory examination, as per Ch. xvi. Quasi-Jury, Section 1, can any Appeal be received. From a definitive decree pronounced at the close of an original inquiry, the only appeal being the appeal from the Judge, without a Quasi-Jury, to another or the same Judge, with a Quasi-Jury, as per Ch. xvi. Section 1.

Enactive.

Art. 3. Exceptions are:—

1. If by the Immediate Judicatory, procedure with a Quasi-Jury be expressly or virtually refused.

2. If, on the original inquiry, Quasi-misdecision has had place, as per Section 3.

In both these cases, Appeal may be received.

Section VI.

Optional Functions as to Decrees.

Enactive.

Art. 1. Functions, of the exercise of which, in the delivery of his definitive decrees, an Appellate Judge has the option, are these which follow:—

1. The Confirmative: by the exercise of which, the decrees of the Immediate Judicatory are confirmed, and order for execution thereof sent down to that same Judicatory.

2. The Reversive: by the exercise of which, an order is given prescribing an arrangement, the direct reverse of that which was decreed by the imperative decree of the Immediate Judicatory.

3. The Modificative: by the exercise of which, the arrangement decreed as above by the Immediate Judicatory, is confirmed as to part, reversed, or changed as to other part.

4. The Substitutive: by the exercise of which, an arrangement is prescribed different from that prescribed by the Immediate Judicatory, the substance of the order bearing no reference to the decrees of the Immediate Judicatory.

Enactive.

Art. 2. For the several diversifications which the exercise of these several functions may require, according to the nature of the suit in question, see Procedure Code.

Enactive.

Art. 3. Of functions exercised by the issuing of incidental orders, such as those, the need of which may be called forth by Quasi-Appeals, examples are as follows:—

1. The mandative: when the alleged cause of complaint is non-commencement or non-continuance.

2. The inhibitive: when it consists in doing something which ought not to be done at all.

3. The sistitive: when it consists in doing something which perhaps may require to be done, but ought not to be done so soon.

Section VII.

Vexation by Appeal obviated.

Enactive.

Art. 1. Exceptions excepted, in case of an insincere or rash appeal, that the blame may more effectually fall upon the Appellant, the Judge appealed from may, at the instance of any party, take order for the attendance of the Appellant at the Appellate Judicatory, on the hearing, who thereupon may be, in case of need, subjected to fresh vivâ vocé interrogatories: in case of non-compliance, the appeal may be dismissed.

For cases of exception see Procedure Code, Ch. xxviii. Appeal and Quasi-Appeal.

Enactive. Instructional.

Art. 2. If the pecuniary and other faculties of a proposed Respondent, be not adequate to the support of his cause at the Appellate Judicatory, and no adequate assistance, gratuitous or professional, will, it appears, be there obtainable, the Immediate Judge appealed from may, of his own motion, or on the application of the Respondent himself, or of the Eleemosynary Advocate, or even of the Government Advocate of his Judicatory, transmit, along with the record, a certificate to the above effect, addressed to the Eleemosynary Advocate at the Appellate Judicatory; whereupon the Eleemosynary Advocate will, in virtue of his office, make argumentation on the Respondent’s side.

Section VIII.

Seats, where.

Instructional. Ratiocinative.

Art. 1. Of the several Appellate Judicaiories shall the Justice Chambers be stationed in the several districts, or all of them, in that one only which is the seat of Government, or what other shall be the plan employed in regard to their location?

I. Reasons for the distribution, in preference to the agglomeration plan, are these:—

1. Between the Immediate and the Appellate Judicatories the communication will, on the distribution plan, be, upon the whole, much more speedy than in the agglomeration plan. Of the advantage, the quantum will be directly as the extent of the territory of the State, and inversely, as the facility afforded by roads, and other instruments of communication.

2. In concurrence with the Sublegislative Assemblies, the Appellate Judicatories will compose a powerful instrument of universal information; they will contribute to the formation of so many enlightened and watchful sections of the Public-Opinion Tribunal; instead of contributing, as the agglomeration plan would, to condense all such light into one spot, thus leaving the rest of the territory in a state of comparative darkness.

3. On the distribution plan, the migration system, which forms a part of it, presents a powerful preservative against the contagion of corruptive local attachments. On the agglomeration plan, true it is that the efficiency of these same causes of evil would, in appearance, be diminished. But in reality, it would more likely be increased. Applied to functionaries in these situations, the corruption would be the more efficient the more influential the corruptor: and in the metropolis would naturally be collected the most powerful and most influential families.

4. By the agglomeration plan, all the functionaries would naturally be brought into the closest and most familiar contact with the Justice Minister:—the subordinates with their common superordinates. With this familiarity, the strictness of inspection necessary to justice would scarcely be compatible. They would indeed be more immediately under the eye of their official inspector, but, unless in so far as accidentally kept awake by casual antipathies, that eye would be in a naturally connivent state.

To inflict punishment on a man at whose table you have been sitting, or he at yours, is not, especially in any such elevated sphere, a thing endurable.

Instructional. Ratiocinative.

Art. 2. II. Reasons for agglomeration, in preference to distribution.

1. These judicatories would, every one of them, be under the eye of the most intellectual and populous section of the Public-Opinion Tribunal.

2. The advantage from the diffusion of instruction in matters of judicature would indeed be in this proportion narrowed. But what must not pass unnoticed is, that in an Appellate Judicatory, the mass of instruction is narrow in comparison of what it is in an Immediate Judicatory: it is confined to what may be afforded by the matter of the record; together with the argumentation which has for its subject matter that same matter: it includes not the oral examination of witnesses, nor the arrangements for securing execution and effect to decrees, and thence for securing the efficiency of the means employed for the necessary communications.

3. By the agglomeration plan alone can the aggregate expense of all these judicatories be minimized. On the distribution plan, while some of them will be saturated with business, others there will probably be, whose whole working-time will not be filled up. Out of every two whose time were not above half occupied, the expense of one might be saved: so, out of every three, whose time was not above a third part occupied.

Of the sum of these reasons, the comparative force may be varied more or less by the local circumstances of different States.

Instructional.

Art. 3. Supposing the distribution plan preferred, thereupon comes the consideration—what shall be the relation between the results of the division made for the purpose of subordinate legislation, and those of the division made for the purpose of superordinate judicature? Were symmetry and consequent facility of conception the only objects of regard, exact coincidence would, without hesitation, be the answer: the best public obtainable is desirable for the one purpose, and so is it for the other. But, from this maximum of simplicity, departures in indefinite numbers may come to be prescribed, by considerations of a local nature and of weightier import. Not improbably one homage to simplicity may however be found capable of being paid, without any very considerable sacrifice. Supposing, in one or more instances, divers Sublegislative portions of territory comprised in an aggregate of Immediate Judicatory territories, which have been put together for the purpose of composing the territory of an Appellate Judicatory; or conversely, divers Appellate Judicatory territories put together to form one Sublegislative territory: still, in either of these cases may the coincidence be thus far preserved, that no Sublegislative territory shall be cut into two or more pieces by the boundary lines of one or more Appellate Judicatory territories, nor any Appellate Judicatory territory, by those of one or more Sublegislative territories: the elementary parts of the one will, throughout, be in either case so many integers of the other, without any admixture of fragments.

For other matters, see Ch. xii.