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CHAP. IV.: THE SECURITIES IN DETAIL. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 8 (Chrestomathia, Essays on Logic and Grammar, Tracts on Poor Laws, Tracts on Spanish Affairs) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). In 11 vols. Volume 8.
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THE SECURITIES IN DETAIL.
SECURITIES IN FAVOUR OF THE NATION CONSIDERED IN THE AGGREGATE.
Securities against Vexation on Account of Religion.
Art. 1. Provided that it be in a chamber enclosed and covered, and that the eyes of the true believer be not annoyed by public ceremonies or processions, with religion for their cause or pretext, or his ears by the sound of bells or other noises: provided also, that by no religion shall any justifying cause be made for causing suffering in any shape to any individual in respect of person, property, reputation, or condition in life:—Every person is at liberty to perform divine service after his own manner. For this purpose any persons without exception may assemble together in private or in public.
Art. 2. Every person is at liberty to write and publish whatever he pleases on the subject of religion, even although the truth and the goodness of the only true religion be impugned thereby: by the true believer, that which is adverse to the only true religion, will either not be read at all, or read with the merited contempt.
Counter-Security. Provided that no writing or imitative figure, containing matter thus odious to the only true religion, be exposed anywhere to view in such manner as to be offensive to the eye of the true believer as he passes. For any such exposure, any person is responsible to the purposes of punishment.
Art. 3. Every person is at liberty to speak what he pleases on the subject of religion, even although the truth or the goodness of the only true religion be impugned thereby: by the true believer, that which is adverse to the only true religion will either not be heard at all, or heard with the merited contempt.
Counter-Security. Provided that no discourse whereby either the truth or the goodness of the only true religion is impeached, be uttered in any public place in such manner as to be offensive to the ear of the true believer as he passes: or in the presence and to the displeasure of any true believer in any private place. The utterance of any such discourse in the hearing of a true believer is an injury to him, and as such may be punished according to law.
Securities against National Gagging: or security for Appeal to Public Opinion and the Power of the Law, on the subject of the conduct of all persons whatsoever, functionaries as well as non-functionaries.
Art. 1. Every man is at liberty to express as well by visible as by audible signs, and in any way and to any extent to make public, whatsoever in his judgment it will be contributory to the greatest happiness of the greatest number to be informed of: and this although disapprobation be thereby expressed towards persons in authority, or any of them, whether on account of the general tenor of their conduct, or on account of their conduct on this or that occasion in particular.
Counter-Security. Provided always, that for any injury thereby done to the reputation of any individual by false imputations, every person concerned in the doing of such injury is responsible to the purpose of reparation and punishment at the suit and for the benefit of any individual or individuals injured: and that, for anything which being so expressed, has for its object the exciting men to the commission of this or that particular offence, any man shall be responsible as above, according to the nature of such offence.
Art. 2. If, on account of any indication given of supposed delinquency in any shape on the part of any person, non-functionary or functionary, a party be proceeded against at law as for injury to reputation, proof of the delinquency so indicated shall be received as a cause of justification; and for the making of such proof, the testimony of that same individual on whom the delinquency is charged, may be extracted in the same manner as that of any other person.
Art. 3. All persons are at liberty at all times and in any number, to hold converse with one another on all subjects in general, and on the subject of the conduct of persons in authority in particular: and on the means of rectifying whatever may be amiss either in the conduct of rulers or in the form of the government, to hold converse, namely, as well in the way of correspondence at a distance, as in presence: and if at a distance, and thence through the intervention of others, as well by written as by oral discourse.
Counter-Security. Provided always, that if for the prevention of evil to person or property, it shall at any time be thought good by the proper authority, for limited time, to prevent or inhibit persons at large from coming together in numbers greater than are capable of hearing from beginning to end, the discourse of the same speaker at the same time,—especially in the night-time, and with arms about their persons: in any such case, that which shall be so done to this purpose, shall not be considered as done in breach of this article.
Art. 4. Every act having for its object the production of the effect thus denounced, under the term National Gagging, is placed as above in the list of injurious acts. Every person who has knowingly any part in the production of it is accordingly punishable by the obligation of making reparation, with or without punishment in another shape, according to the shape in which the injurious act has shown itself.
The right of which the offence thus denominated is the infringement, is the right of exercising influence in the choice of the whole number of those members of the community by whom a public function in any shape is exercised, and of declaring an opinion on their conduct, as well as that of every other individual in whose good conduct all members without exception have an interest; the right of censorship, including the right of receiving and writing communication relating to the information which, to be just, the exercise of this function requires a man to be possessed of: in short, the possessing on each occasion in a manner sufficiently correct and extensive, the proper grounds of censorship.
Right Recognised. Giving expression and publicity to all facts and observations which, in the judgment of the individual in question, promises to be contributory to the greatest happiness of the greatest number: whether the tendency of the correspondent information be to raise or depress this or that person in the scale of public estimation.
Correspondent acts of power prohibited, as being violations of these rights, and thereby put upon the footing of punishable offences—punishable in the same manner as they would be if exercised by persons not invested with any such power.
1. Punishing, or endeavouring to contribute to the punishing of, any person for having given utterance to any discourse to the effect in question, expressed by audible signs.
2. Punishing any person for giving expression to such discourse by visible signs: that is to say, in characters written or printed.
3. Punishing any person for transferring to another for a time, or in perpetuity, either gratis or for a price, any paper in which such signs stand visible.
4. Seizing, detaining, destroying, or damaging any paper or other substance, on which signs expressive of the sort of discourse in question are marked. Issuing or contributing to the issuing of any order for such seizure, detention, destruction, or deterioration—giving or contributing to give execution to such order.
5. Obstructing by force, intimidation, or deceit, the meeting of persons in any number, in any place in which they have individually any right to station themselves,—obstructing them while in the act of making communication of such their observations, and the opinions and wishes suggested by them. In a case where physical force is thus employed, the act of applying it is a corporal injury: where the same effect is attempted to be produced by deceit, it is a fraud.
6. Seizing the body of any person so occupied, thereby infringing his liberty of locomotion. Corresponding offence—injurious confinement.
7. Seizing any paper, writing, printed book, or other visible instrument of discourse, having for its object the making two or more persons assemble for any such purpose as above. Corresponding offence—violation of private writings—of visible instruments of communication between man and man.
8. Consequences in respect of eventual acts of corporal injuriation, (homicide included,) in prosecution of the above forbidden designs:—
Art. 5. In case of any bodily contest between persons occupied in the exercise of any of the above rights, and other persons, functionaries or non-functionaries, occupied in the endeavour to give disturbance to such exercise, any wound or other suffering unavoidably produced by the exercisers or any supporters of theirs in the way of self-defence, is lawful and unpunishable: but if produced by the disturbers on the persons of the exercisers, unlawful and punishable: punishable in the same manner and degree as if no such pretence had been set up.
Art. 6. On the occasion of any such contest, all persons are warranted in giving assistance to the exercisers: no person is warranted in giving assistance to the obstructors.
Art. 7. So in regard to damage done to property in any such bodily contest: damage unavoidably done by the exercisers or their assistants to property of the obstructors is lawful and unpunishable: damage done by the obstructors or their assistants is unlawful and punishable.
Securities against National Disarmament and Debilitation.
Art. 1. All persons are at liberty to keep arms of all sorts, to wit, either in their own habitations or elsewhere, at their choice: also to exercise themselves, and cause themselves to be trained, in the use of arms, whether it be separately or in any numbers.
Art. 2. Also, singly or in companies of any number, to carry arms about them for their own defence.
Counter Security. Provided always that if for guarding against temporary oppression of the greater number by sudden insurrection of the smaller number under favour of surprise, it shall at any time be thought good for the proper authority to inhibit such assemblies from having place otherwise than after due notice, neither shall any such inhibition, nor any necessary measures taken for giving effect to it, be considered as amounting to a breach of this article.
So if to prevent slaughter, spoliation, or oppression of individuals by individuals, it shall seem good to the proper authority to prohibit the carrying of offensive arms in this or that particular place, or by this or that particular person or set of persons, or on this or that particular occasion, or during this or that particular time; or to prohibit all persons from carrying any offensive arms in a concealed manner at any time.
Otherwise than as above, every act having for its object the production of the effect of national disarmament and debilitation, is placed in the catalogue of injurious acts.
The rights of which, the offence thus denominated is a violation, are:—
1. The right of putting and keeping one’s self in a state of aptitude, in the character of a member of the armed force of the community.
2. The right of exercising one’s self, and being exercised in the use of arms.
Correspondent acts of power prohibited, rendered unlawful, and as such punishable as being acts of violation with reference to the above rights: punishable as if exercised by persons not invested with power.
1. Punishing any person for having been occupied in training himself, or being so trained, or in training any other person.
2. Punishing any person for repairing, for the purpose of being trained, to any place in which for any other purpose he had a right to station himself.
3. Punishing any person for giving invitation to others in any shape, either oral or graphical, to engage in any such exercise, or to meet others for the purpose of such exercise.
4. Obstructing, or endeavouring to obstruct, by force, intimidation, or deceit, the meeting of persons in any number for this purpose.
5. Obstructing them as above in the commencement, or continuance, of the set of operations here in question.
SECURITIES IN FAVOUR OF INDIVIDUALS.
General Declaratory View.
Art. 1. No person shall, against his will, or against the will of those under whose guardianship he is placed, as the case may be, be arrested, imprisoned, or otherwise confined, except for the purposes, and on the occasions, and in the manner, determined and declared by law.
Art. 2. No person shall, against his will, or against the will of those under whose guardianship he is placed, as the case may be, be sent or kept out of the dominion of the State, or any part thereof, except for the purposes, and on the occasions, &c. (as above.)
Art. 3. No person shall be put to death, but for the purposes and on the occasions, &c. (as above.)
Art. 4. No person shall be mutilated, disabled, bruised, wounded, or otherwise made to suffer in any part of his body, except for the purposes, and on the occasions, &c. (as above.)
Art. 5. Of no man shall any personal service in any shape be exacted, except for the purposes, and on the occasions, &c. (as above.)
Art. 6. On the security of no man’s property shall any infringement be made, except for the purposes and on the occasions, &c. (as above.)
Art. 7. On the security of no man’s private writings shall any infringement be made, except for the purposes and on the occasions, &c. (as above.)
Of the security of a man’s private writings it may be an infringement, if, against his will declared or justly presumable, they be placed or kept out of his custody, within or without the dominions of the State, or destroyed, or inspected, or seized, for whichsoever of these or any other purposes it be.
Art. 8. When, for giving execution and effect to the law, it becomes necessary, in virtue of the exceptions mentioned in the above articles, to make infringement on the security of body or goods, no such infringement shall be made beyond what the necessity of the case requires. For any farther injury to body or goods, all persons therein concerned, functionaries or non-functionaries, shall be deemed trespassers, and as such responsible in respect of burthen of compensation and punishment, in the same manner as wrong-doers at large.
Securities against secret confinement: for protection of the persons of individuals against oppression by persons in authority, without, or even with the knowledge of the sovereign.
Art. 1. Wherever, on the alleged ground of its being in furtherance of the purposes of justice, the person of any man is put under confinement, information thereof shall be given in the most public manner, to the end that all persons taking an interest in his welfare, may have it in their power to take lawful measures for securing him against injustice.
Art. 2. To this end the name and situation of every habitation, designed by authority to be used as a place of confinement, whether on the score of delinquency or of insanity, shall be entered in an appropriate register, an exemplar of which shall be kept in the metropolis in the office of the chief Judicatory: and of this exemplar a copy shall be kept in the office of every other Judicatory.
Art. 3. On the commitment of an individual to any such place of confinement, entry of such commitment shall be made in a register to be therein kept for that purpose, mentioning the name by which, on his own declaration or memoir, such individual is distinguished: the person or persons by whose hand he has been brought to prison: the person or persons by whose authority he has been brought to prison: the cause for which he is so committed: the time for which he is so committed: and the evidence on which such commitment has been grounded,—a sufficient description by name and memoir of every person on whose testimony the commitment has had place being added, as also the cause for which the individual has been committed.
Art. 4. Within [NA] hours after the commitment of the prisoner, a copy of such entry shall be pasted up over the door of the Judicatory, in such characters and situation that it shall be legible to all passengers.
Art. 5. If at any time, by any special necessity, the commitment of the prisoner to the appropriate prison be rendered impracticable or improper, any other building, public or private, may, for the time, be employed for the purpose, care being taken that the vexation thereby occasioned, as well to the occupant of such building, as to the prisoner, be as little as possible; and that at the expense of the prisoner, if found guilty, or otherwise at the public expense, (if there be funds sufficient,) compensation be made to the occupant for the vexation: for which reason also, that building which for this purpose may be employed with least vexation—compensated or uncompensated, to the occupant, must be in each case preferred.
Art. 6. Cases for which, instead of the ordinary appropriate prison, an extraordinary prison as above may be employed, are as follows:—
1. The ordinary prison being rendered incapable of holding the prisoners without danger to health or safe custody, by reason of its fulness.
2. — — or by want of repair.
3. — — or by unhealthiness,—produced, for example, by contagious disease.
4. The ordinary prison rendered by distance inaccessible without halting for repose.
5. — — or rendered inaccessible by hostility on the part of enemies, foreign or domestic.
6. — — or by danger of forcible rescue.
Art. 7. If in any such occasional prison a person be detained more than (24) hours, over the door there shall be posted up a paper, such as that described by Article 4 in the case of an ordinary prison, and for the framing or attestation thereof, the assistance of some Iman be invited: that of the Iman of the nearest mosque in preference.
Art. 8. On the commitment of a person to any such extraordinary prison, the bringer shall give the earliest possible notice to the keeper of the ordinary prison, and to the President of the Judicatory in whose district the extraordinary prison is,—of the fact of the detention, together with the cause by which it was rendered necessary, and whether such notice as should have been fixed up, as above, is or is not fixed up, and if not, why not.
Art. 9. The bringer shall make known to such keeper of the ordinary prison, and such judge, the fact of such detention at the extraordinary prison, together with the causes and circumstances of it: if he omit so to do, the detention shall, during the omission, be deemed unlawful.
Art. 10. Every person who knowingly and wilfully has been contributory to the injurious imprisonment of any person, shall himself suffer imprisonment for a length of time equal to that during which the party so injured was imprisoned; and shall, moreover, to the extent of his means, be compelled to furnish compensation, in a pecuniary shape, for the injury.
Art. 11. Any person by whom it shall be known or suspected that, in a certain building, or other receptacle, a certain person is kept in confinement, may repair to the keeper, and require to be informed by him whether such person is actually under his custody. If, being so interrogated, the keeper refuse or forbear to make answer, or make a false answer, he shall suffer condign punishment, and if, at the time of the interrogation, the person in question was actually in his custody, shall be punished as having been guilty of injurious imprisonment.
Art. 12. To the interrogation, whether the person in question be at that very time in the custody of such keeper, may be added the interrogation, whether, at any, and what time, he had been in such custody: and if yes, in what manner, and by what means, he ceased to be so.
Art. 13. For prevention of vexation and impertinent inquiry, the keeper, before he makes reply to any such interrogatory, as above, may require the applicant to make himself known, to the purpose of eventual responsibility.
Art. 14. Any person to whom, by any such keeper, any such acknowledgment has been made, may repair to the judicatory of the district in which such place of confinement is situated, and there require of the judge that the person so under confinement may be produced before him, and that, at a public audience, inquiry be made into the cause of such confinement: which inquiry made, the person shall be remanded or set at liberty, or otherwise dealt with as the case may require.
Art. 15. What is here said of a prison shall be understood of any other place in which, whether according, or not according to law the person in question is under confinement.
Art. 16. If, to avoid his being produced to the judicatory, as above, a prisoner is shifted from place to place, all persons concerned in such shifting, and conscious of its having that for its purpose, shall be responsible as for injurious imprisonment.
Securities against injurious banishment.
Definitions. Injurious banishment is where, without, or otherwise than according to lawful sentence of a judicatory, a subject of the state is, to his vexation, by force, unlawful intimidation, or fraud, sent or kept out of the state, or any part thereof.
If out of the whole territory of the state, the banishment is external: if out of this or that particular part, internal.
The intimidation is unlawful, if the means employed be a threat of vexation by unlawful means, or even of lawful prosecution, for other cause than injury done to the individual by whom the comminatory intimation is conveyed, or to some individual on whose behalf he is entitled to prosecute.
Art. 1. Of any sentence of banishment, external or internal, pronounced by a subordinate judicatory, notice shall, by the earliest opportunity, be sent to the office of the head judge; nor shall the sentence be executed until confirmed by his signature; nor then, until thirty days after the sentence has been read in the Chamber of Audience.
Art. 2. Every person who knowingly and wilfully has been contributory to the injurious external banishment of any person, shall suffer imprisonment for a length of time equal to that during which such banishment shall have had place; and shall, moreover, to the extent of his means, be compelled to contribute to the furnishing compensation, in a pecuniary shape, for the injury.
Observations on the subject of preventive measures against injurious and secret banishment.
For security against secret and injurious banishment, two obvious measures of the preventive class present themselves: one is, prohibiting egress, without passports; the other is prohibiting egress without entry of the fact in the Official Register Book.
It may, perhaps, be too much to say that, in no state of things, either of these means ought to be employed; but what may be said, and with truth, is, that generally speaking, the evil of the remedy will be found to preponderate over the good. The state of things will be an extraordinary one, if, for one instance in which the egress is involuntary on the part of the individual, there will not be hundreds, not to say thousands, in which it is voluntary—say, for argument’s sake, one thousand. Here, then, in the hope of saving, from the greater vexation, a single person, a thousand are subjected to the lesser. But, in the case where a passport is rendered necessary, neither in its length, nor therefore in its aggregate amount, has the vexation any certain limit. Power without limit, over every one who has need of the passport, is thus given to the functionary or functionaries, whoever they be, whose signature or signatures are necessary to the giving validity to it; and thus, for the sake of saving one from injurious banishment, a thousand are exposed to arbitrary confinement—confinement not the less vexatious for not being against law. In the case where simple registration is all that is required, the power of granting or refusing the passport not being given in a direct way, the danger of abuse may seem as if materially lessened, if not removed. It is not, however, by a great deal, so effectually lessened in reality as in appearance: for still, so long as the minute in question remains unmade, the confinement is as effectual as if the case had been that of a passport that had been delayed.
The argument from the security thus afforded has hitherto been supposed entire. This, however, it cannot be in any case: and the more uncertain the effect of it is, the less the utility absolutely considered, and thence comparatively, with reference to the vexation produced by it. The efficacy will depend upon the nature of the communication with other countries, and the efficacy of the means actually employed for keeping persons and things in a state of confinement;—true it is that exportation of another person against his will is not, in general, so easy to a man as the exportation of his own person, or of an equal mass of inanimate things.
Securities against secret and unlawful Homicide.
Art. 1. On the death of every person, except as excepted, notice thereof shall be given to the Iman of the parish within which the death took place; if in any dwelling-house, by the occupier thereof, or some other person in whose presence the death took place: if not in any dwelling-house, or the ground belonging to a house, and occupied therewith—as, for example, on a journey, if at the time any person or persons were present, then by some one or any of the persons present—if the person be found dead, then by some person by whom the body was found.
Art. 2. In every case in which it appears that in the production of the death of any individual human agency has in any shape borne a part, every person to whose mind or senses appearances tending to give probability to such an incident have presented themselves, is expected and required to give to his conception in relation thereto whatsoever publicity it may be in his power to produce.
Art. 3. To this end, after making inspection of the dead body, if it be in his power, with his own eyes, let him repair to the nearest mosque with all possible despatch, and communicate to the Iman such observations as he has made: to the end that this servant of God may take cognizance of the facts, and in case of immoral agency on the part of any individual, do whatsoever may be in his power towards the discovering and punishing of every criminal so concerned.
Art. 4. Having received such communication, the Iman shall, with all practical diligence, repair to the spot on which the body lies, and there make examination of the state of the body, and make inquiry in relation to the matter at the hands of all persons by whom appropriate information is offered, or at whose hands it seems capable of being obtained.
Art. 5. In taking such examination, let the servant of God proceed as follows:
1. Except as excepted, let everything done by him on this occasion be done as publicly as possible.
2. If, in regard to this or that person, he sees reason to suspect that on seeing what passes he may give information thereof to some person or persons contributory to the death, for the purpose of enabling them to escape, he may keep secret from such person anything that tends to point suspicion upon the person so suspected, until means have been taken for his arrestation.
3. Let him, in the name of God and his Prophet, adjure all persons so interrogated, to declare the truth, the whole truth, and nothing but the truth, in relation to the matter in hand, and that as well spontaneously, as in answer to all such questions as he shall have to put to them.
4. In case of refusal to give information, or to make answer to this or that question, let him take note thereof; but if any allegation in justification of such refusal be made, let him make mention also of such allegation.
5. So if any means be used to evade giving such information.
6. So, if after promise to give it, such promise be not fulfilled.
7. Of the demeanour as well as discourse of every individual at whose hands testimony is required, as above, let him take account in writing, noting as correctly as possible the very words of everything that is said.
8. In the case of each individual so interrogated, let him read over to him what has been written: in every instance where it has been signified by the witness that the account so given by him was in this or that particular incorrect, and that it ought to have been so and so, let him make addition accordingly. But let him not on this account obliterate anything that has been written; for any contradiction that has place between any subsequent part of the testimony, and any antecedent part, may help to make known the truth.
9. At the end of the account thus given of each person’s testimony, let him cause the witness, if able, to write his own name in confirmation thereof: if unable, let the servant of God write the name, and cause the witness, in confirmation thereof, to take the pen in hand and make a mark: and to this mark let him add in his own hand, or the hands of the respective persons, the names of the persons who saw the mark made: or of a competent number of them, choosing such whose attestive testimony may upon occasion be resorted to with least inconvenience in every shape.
10. If by any person present a desire be expressed that a question to this or that purport be put to any other person, in relation to this same business, let the servant of God, if in his judgment such question be not irrelevant, or on any other account improper, put the same accordingly on the number of the questions. If regarding the same as improper he decline putting it to the witness, still, if by him by whom it is propounded, or by any other person present, it be desired that entry be made of such request and refusal, so be it.
11. Of the names of all persons present during the examination of such witness, let entry in like manner be made, unless the number be so great that such entry would occupy too much time: in such case the number may be limited to twelve, unless the persons themselves desire entry to be made of their names: in which case, after those by whom no such desire has been expressed, have been entered to the number of twelve, entry may be made of those by whom the desire is expressed till the whole number amount to twenty-four. If by any person complaint be made of partiality in the choice, let note be made of such complaint, the servant of God following his own judgment notwithstanding.
Securities applicable to the case of mysterious disappearance.
Art. 1. In case of unexpected disappearance of any person, if it be known or suspected that he is clandestinely kept in confinement anywhere, or has been secretly put to death, or by force or fraud sent out of the country: application being made on his behalf to the Cadi, or to any inferior judicatory, entry shall thereof be made in the Register Book of such judicatory, and means shall be employed for the recordation and notification of the fact, to the end that in the case of his being unlawfully confined, he may be liberated or otherwise dealt with; or if unlawfully transported, he may be brought back; or if unlawfully put to death, means may be taken for the punishment of all persons concerned in the commission of the injury.
Art. 2. Such application being made, the judge shall hear and make entry thereof in an appropriate Register Book of the Judicatory, and shall do whatsoever shall be in his power towards the causing notification to be made thereof throughout the dominion of the state.
Art. 3. At the request of any person so applying, the judge shall immediately deliver to him, or suffer him to take or cause to be taken, a copy thereof signed by the said judge. Copies in any number being taken of such copy, the judge shall, without delay, cause examination thereof to be made, and as soon as they have respectively been found or made correct, shall in like manner authenticate them by his signature, to the end, that, by the applicant, transmission thereof be made to all such judicatories and mosques, as the applicant shall be desirous of sending them to: whereupon, immediately upon the receipt of each such copy, the Iman of the mosque shall make publication thereof, by reading the contents to the faithful in full congregation assembled.
Art. 4. In every judicatory, in the office of which any such copy shall have been received, the presiding judge shall cause it to be kept in the archives, having, in the first place, made notification thereof in the promptest, and at the same time, in the most public manner that the circumstances of time and place admit of.
Art. 5. Attached to such record of disappearance, shall be an invitation to all persons having knowledge of any facts, tending to the discovery of the authors of the injury, or the causing it to cease if the party be alive, to repair to any judicatory, or to any mosque at their choice, there to testify what they know. Which done, the president of the judicatory, or the Iman of the mosque, shall, upon his responsibility, use such means as his situation admits of, to the forwarding to the proper judicatory the information so obtained.
Art. 6. The petition on which a record of disappearance is grounded, must be signed by some one person, namely, to the end that, in case of its being presented through malice, or otherwise without justification or sufficient excuse, the person presenting it may be responsible to the purpose of pecuniary compensation, with or without ulterior punishment for the vexation so produced. Such petition may be signed by persons in any number: and in such case, such signatures may be in lines one under another, or in lines forming the rays of a circle. The use of this radial form is, to save the individual principally concerned, from being more exposed than the rest to vindictive treatment at the hands of any functionary or other person, in whose breast the application might excite displeasure.
Art. 7. In so far as applicants are unable to defray the expense of copies and transmission, let the judicatory defray it out of any such means as it has in its power.
Securities against Extortion of Personal Service.*
Art. 1. By no person, functionary or non-functionary, shall personal service in any shape be exacted of any individual, without giving him in writing a sufficient acknowledgment thereof.
Art. 2. In such acknowledgment shall be contained the particulars following, namely—
1. The name of the individual at whose hands the service was required.
2. The proper name and official name of the functionary by whom the service was required.
3. The particular nature of the service.
4. The nature of the exigency: i. e. of the demand or need which, on the public account, there was for the performance of such service.
5. The time, that is to say the year, month, day, and hour, at which the service was first required.
6. The time during which the service was required to be continued.
7. The willingness or unwillingness of the individual to render the service so required.
8. In case of unwillingness, the reasons, if any, alleged by him, why the service ought not at all, or ought not at that time, to be exacted of him.
9. The performance, imperfect performance, or non-performance, of the service so required.
10. Collateral damage, if any, inevitably sustained by the individual, by the performance of the service.
Art. 3. Of such act of acknowledgment let two copies be taken: one to be delivered to the individual, the other kept by the functionary.
Art. 4. On each of these let the individual signify his assent or dissent to the several statements therein contained, attesting the same by his name or his mark: his name, if he be unable to write it, being written by, or by order of, the functionary.
Art. 5. The nature of the service and the fact of the exaction of it being thus recorded, it will then be to be compensated for on account of government, or left uncompensated according to the nature of the case.
Art. 6. Let the act of acknowledgment, as to all particulars antecedent to the performance of the service, be made out and signed antecedently to such performance, or not till afterwards, according to the nature of the exigence: that is to say, according as this testimony can or cannot be given beforehand without prejudice to the service.
Examples of cases in which it may probably not be capable of being given without prejudice to the service:
1. Prevention, stoppage, or diminution, of damage by any physical calamity, such as that occasioned by fire or inundation.
2. Prevention, stoppage, or diminution, of damage to body or goods by delinquency in any shape—such as, killing, wounding, or beating, forcible depredation, destruction or damnification of goods, by internal rebellion.
3. Prevention, stoppage, or diminution, of damage, in the like shape by foreign enemies.
Art. 7. Where the nature of the service is such as to require that it be executed by individuals in an indeterminate number at the same time, no such act of acknowledgment need be given to each one of them.
Art. 8. But in this case let a general statement of the number be committed to writing by the proper functionary, and deposited either in the mosque or the judicatory within the district of which the matter happened, or both, as the case may require.
Art. 9. If so it be that this or that individual has, on the occasion of the performance of such service, received any material damage in body or goods, let note, with sufficient attestation be taken thereof, to the end that he may receive compensation in a pecuniary shape at the hands of government.
Art. 10. So if it be, that by the magnitude of hazard to body or goods, or by the success or energy of his exertions, it has happened to this or that individual to distinguish himself in an eminent degree, let note thereof be taken, and a duly attested copy thereof be delivered to him. In this case, if the degree of merit manifested be sufficient, let entry be made in an appropriate register to be kept in every mosque and in every judicatory. It may be styled The Register of merit, or The Register of extraordinarily meritorious public service.
Securities against Official Depredation.
Definitions.—Official depredation may have place at the expense of an individual, or at the expense of government,—that is to say, at the expense of the whole community, at whose expense the money employed in the service of government is collected. Official depredation at the expense of government belongs not to this purpose.
Official depredation has place in so far as any public functionary avails himself of the power or influence possessed by him by means of his office, to obtain from any person money, money’s worth, or beneficial service in any shape, not having a right thereto by law.
The instrument whereby this offence is committed, may be either force, intimidation, or deceit.
Intimidation may be exercised by producing either the fear of some eventual positive evil, or the fear of failing to obtain the matter of good which the functionary had no right to prevent the individual from receiving.
Art. 1. Imposition of secrecy is evidence of official depredation. If on the occasion of the valuable thing or service received, intimation is by the functionary conveyed to the individual, that it is the wish of the functionary that the transaction should be concealed from anybody, such declared wish affords presumption of official depredation. The presumption, if the fact of the having given intimation of such a wish is credited, shall be regarded as provisionally conclusive.
Art. 2. If on account of any service or supposed service, rendered or supposed to have been rendered or to be about to be rendered to an individual, by a public functionary, by means or in respect of his official power, gift or service other than what is appointed and allowed by law be received by him, or to his use, or for any person specially connected with him by any tie of interest or sympathy, intimidation or corruption shall be presumed to have been exercised by such functionary: intimidation, namely by apprehension, lest evil in some shape in which it ought not to be inflicted by him on the individual, be so inflicted, or lest good in some shape in which it ought to be rendered to the individual by the functionary without such gift or service, should not be rendered by him accordingly: corruption, in the view of obtaining of the functionary, at the expense of the public, the matter of good in some shape in which it ought not to be so rendered.
Art. 3. In case of intimidation, the gift, or the equivalent of the service, may be recovered of the functionary or his heirs at any time within (NA) years.
Art. 4. In case of corruption it may be recovered for the use of the public treasury.
Art. 5. If by any public functionary, gift or service not due to the sovereign by law, be received or required of any individual, on pretence that it is for the sovereign’s use or by command of the sovereign, the intimation by which it is asserted or supposed, that the sovereign issued any such command, or would receive any such gift of service if permitted, shall be deemed a calumny, and the functionary and every person willingly contributory to the conveying such intimation, shall be punished as the author of such calumny.
Art. 6. If on any such occasion, any writing to any such effect be produced, purporting to be authenticated by the signature of the sovereign, the same shall be regarded as a forged instrument, and the persons concerned in the exhibition thereof shall be punished as for forgery.
Art. 7. Provided always, that if the sovereign be pleased to appear in the judicatory, and in the face of the bystanders, declare that the signature was really his signature, in such case it shall be acknowledged as such, and all due obedience shall ensue.
Art. 8. Every functionary by whom, on account of any branch of the public service, money or money’s worth is required at the hands of any individual, shall, on receiving that which is required, or any part of it, deliver to the person of whom it has been received, an appropriate instrument or writing, acknowledging such receipt. This instrument may be termed an acknowledgment of receipt, or in one word a receipt.
Art. 9. If no such instrument be delivered, the act of receipt shall be deemed an act of official depredation, or say in one word extortion.
Art. 10. Of every such receipt two copies shall be made. One of these shall be delivered to the person in whom the requisition is made as above; in it shall be written:
1. Name of the place in or at which the requisition is made—district, town, if any, and parish.
2. Time at which the requisition is made.
3. Official name of the functionary by whom the requisition is made.
4. Personal name of the functionary by whom the requisition is made.
5. Name of the individual on whom the requisition is made.
6. The subject-matter of the requisition so made.
7. The branch of the public service for which the requisition is made—for example, the financial, the judicial, or the military.
8. The time on or before which it is required that the thing in question shall be delivered.
9. The place at which it is required that the thing in question shall be delivered.
10. If the thing in question be delivered accordingly, mention of such delivery.
Art. 11. If lawful, such requisition shall be either specially or generally manifested.
By specially manifested, understand manifested by a requisition made to the particular individual.
By generally manifested, understand manifested to all such persons as are within the description thereupon given—as, for example, all the persons in a certain district, or all the persons of a certain class whose ordinary abode is within that same district.
Securities in favour of Private Writings: or Securities for the Writings or other Documents of Individuals, against wanton or oppressive Seizure, Destruction, Damnification, or Inspection, by Non-functionaries or Functionaries.
Art. 1. No writing shall, against the will, known or reasonably presumable of the owner, be carried or kept out of his custody or power, or be seized, destroyed, damaged, or inspected, by or by order of any person in authority: unless it be in pursuance of the order of a Judicatory.
Art. 2. Such order may be either subsequently to the definitive sentence pronounced in a suit or cause, and for the purpose of giving effect to such sentence, or antecedently to such sentence, and for the purpose of furnishing due grounds for it in the shape of evidence.
Art. 3. In case of such oppressive seizure, destruction, damnification, or inspection, any person concerned in the infliction of the injury shall be responsible to the purpose of pecuniary compensation, with or without ulterior punishment, as the case may require.
Note, that the evil produced by such injurious inspection is capable of wearing any shape in which evil to any person or persons is capable of having place:—in his person, in his reputation, in his property, in his condition in life: in any of these ways an individual is liable to be made a sufferer from such a cause.
Art. 4. If, by any illegal means, writings be obtained contributing to the proof of any offence, the illegality of the means shall not have the effect of exempting the possessor from the punishment adapted to the offence: but in the adaptation of the punishment, any evil suffered by him in consequence of the inspection thus obtained of any other writing, shall be considered.
Art. 5. So, in the case where, as between two parties who are in a state of dispute with relation to a certain right, a writing having for its tendency the giving effect to the claim of one of the parties, and which, as such, the other ought to produce, or to have produced, has been obtained by illegal means: that is to say, without sufficiently and properly issued warrant. But if it be by wilful falsehood in any shape that the writing has been obtained, all persons concerned shall be punished for the falsehood: and the party, if privy to the falsehood, shall not have the benefit of the evidence so obtained. But care must be taken, lest, he not being privy to the falsehood, a false friend should, by obtaining it by means of falsehood, deprive him of the benefit of it.
Art. 6. If, by legal means employed for the purpose of obtaining evidence of this or that act of delinquency, or of the correspondent non-delinquency, or in respect of this or that particular right, writings or other documents capable of serving as evidence respecting any other supposed offence or right, be obtained, the evidence thus obtained may be employed accordingly. But if, in this way, possession or inspection has been obtained of writings or other documents, by the publicity of which evil in any shape has been produced to any person, without service rendered to justice in any shape, as above: for such evil, all parties concerned in the production of it shall be responsible to the purpose of reparation or punishment, or both, as the case may require.
Art. 7. If, for the purpose of producing serious evil by disclosure of writings or other documents, evidence not applicable to any other than a trivial offence or a trivial right be obtained, although it be by legal means, all persons knowingly concerned in such inspection or divulgation, shall be responsible to the purpose of reparation, or punishment, or both. But from the punishment, deduction may be made proportioned to any such real good as shall be deemed to have been produced by the production of such evidence.
Example. For the purpose of causing a person to be disinherited, or otherwise made to suffer by an over-severe or capricious father, husband, or master, an adversary obtains by legal means, in company with documents applicable to the purpose of a trivial offence or right, others which, by means of some exasperation, produce the evil effect intended, as above.
[* ] Extortion of personal service may be considered as depredation; viz. to the amount of the profit derived from it on the one hand, and the loss or other sufferance produced by it on the other. In so far as to the individuals labour is a source of profit, forced labour is loss to an amount equal to the profit which in the time so employed by them might have been gained.