Front Page Titles (by Subject) SECTION I.: GENERAL IDEA. - The Works of Jeremy Bentham, vol. 2
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SECTION I.: GENERAL IDEA. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 2 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 2.
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In a former essay* I pointed out the species of tax which, if the reasoning there given be just, is the worst of all taxes existing or possible. The object of the present essay is, to point out that mode of supply which, for one of so great a magnitude will, I flatter myself, appear to be absolutely the best.
What is that mode of supply, of which the twentieth part is a tax, and that a heavy one, while the whole would be no tax, and would not be felt by anybody?
The question has the air of a riddle; but the proposition it involves, paradoxical as it may appear, is not more strikingly paradoxical than strictly true.
The answer is, an extension of the existing law of Escheat—a law coeval with the very first elements of the constitution; to which I would add, as an aid to its operation, a correspondent limitation, not an extension of the power of bequest.
Of the extended law of escheat, according to the degree of extension here proposed, the effect would be, the appropriating to the use of the public all vacant successions, property of every denomination included, on the failure of near relations, will or no will, subject only to the power of bequest, as hereinafter limited.
By near relations, I mean, for the purpose of the present proposal, such relations as stand within the degrees termed prohibited with reference to marriage.
As a farther aid to the operation of the law, I would propose, in the instance of such relations within the pale* as are not only childless, but without prospect of children,† —whatever share they would take under the existing law, that instead of taking that share in ready money, they should take only the interest of it, in the shape of an annuity for life.
It would be a farther help to the operation of the measure, and (if confined to the cases where, from the nature of the relationship, the survivor is not likely to have grounded his plans of life upon the expectation of the succession, or otherwise to have placed any determinate dependence on it) may scarcely, if at all, be felt, if in such instances, although the relationship be within the pale, the public were to come in for a share in the succession (suppose an equal share,) though not the whole. This may be applied to the case of the uncle and aunt—to the case of the grandfather and grandmother—and perhaps, unless under particular circumstances, to the case of the nephew and niece.
With regard to family settlements, the persons whose benefit they have in view will be found provided for, with few or perhaps no exceptions, by the reservations made in this plan in favour of relations within the pale.
To make provision for the cases where, in virtue of an old settlement, an estate might devolve to a relation without the pale, I would propose to add a proviso, that whereever the deceased, had he been of full age, could by his single act have cut off the entail, it shall be as if he had actually done so for the purpose of excluding the distant relative.
This, in the instance of settlements already existing; as to future ones, there will be still less difficulty about confining their operation within the range meant to be allowed them by the spirit of the proposed law.
Regard to the principles of the constitution, not less than to the probability of carrying the measure through the Upper House, would, at the sametime, incline me to exempt the peerage from its operation, wherever the effect would be to deprive the title of any property which, under the existing law, would go to the support of it.
As to the latitude to be left to the power of bequest, I should propose it to be continued in respect of the half of whatever property would be at present subject to that power: the wills of persons in whose succession no interest is hereby given to the public, to be observed in all points as at present; as likewise those in whose succession an interest is given to the public, saving as to the amount of that interest—the plan consequently not trenching in any degree upon the rights of parents.‡
To give the plan its due effect, it will be seen to be indispensably necessary, in the first place, that the whole property in which the public shall thus have acquired an interest, shall, whatever it consists of, be converted into ready-money: property in the funds alone excepted, from which the public cannot reap so great a benefit in any other way than by the sinking of so much of its debt in the first instance; in the next place, that to prevent collusive undervaluation, and the suspicion of it, the conversion shall in every instance be performed in the way of public auction. As to the reasons for such conversion, they are tolerably apparent on the face of the proposition; and they will be detailed in their proper place.
What will also be seen to be necessary is, that wherever the public has any interest at all in any succession under the proposed law, the officer of the public, i. e. the officer of the crown, shall enter into the possession and management of the whole in the first instance, in the same manner as assignees of bankrupts do in respect of the whole property, real and personal together, or administrators or executors do in respect of the personalty: not to mention the real in some cases, as where, by a clause in the will, it is ordered to be sold.
Of the several extensions above proposed, it may be observed, that though they operate, all of them, to the augmentation of the produce, and in so far at least to the utility of the measure, yet are they not any of them, so indispensably necessary to its adoption, but that they may be struck out or modified, or even added to by further extensions, and the principle of the plan still adopted—the essence of it still preserved.
It may be a satisfaction to see at this early stage of the inquiry the principles by which the extent that may with propriety be given to this resource appears to be marked out and limited. The propositions I would propose in that view are as follows:—
I. Whatever power an individual is, according to the received notions of propriety, understood to possess in this behalf, with respect to the disposal of his fortune in the way of bequest,—in other words, whatever degree of power he may exercise without being thought to have dealt hardly by those on whom what he disposes of would otherwise have devolved,—that same degree of power the law may, for the benefit of the public, exercise once for all, without being conceived to have dealt hardly by anybody,—without being conceived to have hurt anybody,—and, consequently, without scruple: and even though the money so raised would not otherwise have been to be raised in the way of taxes.*
II. Any further power which could be exercised in this way to the profit of the public purse, and of which the exercise, though not altogether clear of the imputation of producing a sense of hardship, would, at the same time, be productive of less hardship than the lightest tax that could be substituted in the soom of it, ought, if the public mind can be sufficiently reconciled to it, to be exercised in preference to the establishment of any tax.
III. A power thus exercised in favour of the public purse, would go beyond the latitude given by the first rule, and would accordingly be productive of a sense of hardship, in as far as it went the length of producing, in any degree, any of the following effects, viz.
1. If it extended to the prejudice of the joint-possession customarily enjoyed by a man’s natural and necessary dependents, such as children, and those who stand in the place of children.
2. If it went to the bereaving a man of the faculty of continuing, after his death, any support he had been in the habit of affording to relatives of any other description, whose claims to, and dependence on such support, are, by reason of the nearness of the relationship, too strongly rooted in nature and opinion, to be capable of being dissolved by the dispensations of law.
3. If, by putting it out of the power of a relation of parental age, to receive, at the death of a relation of inferior age, an adequate indemnification for requisite assistance, given in the way of nurture, it threatened, by lessening the inducements, to lessen the prevalence of so useful a branch of natural benevolence.
4. If it went to the bereaving a man of the faculty of affording an adequate reward for meritorious service, of whatsoever nature, and by whomsoever rendered, lessening thereby the general disposition among men to the rendering of such service.
5. The effect of such an extension of the proposed power would be purely mischievous, if what were gained thereby on one hand, by the augmentation of the share taken into the hands of government, at the expense of the power of bequest, were to be lost, on the other hand, by a proportionable diminution effected in the whole mass of property in the country, in consequence of the diminution of the inducements to accumulate and lay up property, instead of spending it.
6. The public mind must, in this instance, as in every other, be, at any rate, treated with due deference. In this instance, as in every other, a law, however good in itself,—however good, on the supposition of acquiescence,—may become bad, in any degree, by unpopularity: by running too suddenly and directly against opinions and affections that have got possession of mankind.
Thus much for the rules that may serve for our guidance in adjusting the extent that may be given to this resource. They may be trusted, it should seem, for the present, at least, to the strength of their own self-evidence. The application of them to practice, the application of them to the several modes and degrees of relationship, and to the several situations and exigencies of families, is matter of detail that will meet us in its proper place.
[* ]Protest against Law-taxes, printed 1793, now first published and subjoined to the present Essay, December 1795. [See the immediately preceding Tract.]
[* ]To save circumlocution, relations, whom under this, or any other definition of near relations, I should propose to exclude, I shall term relations without the pale: those whom I should propose not to exclude, relations within the pale.
[† ]Say, in the instance of females, 48;—in the instance of males, 60, if no child within 5 years past; or 55, if married to a wife above 48.
[‡ ]Many writers (Blackstone for one) have treated the right of bequest with very little ceremony: many writers, without having in view any such public benefit as is here in question, have been for abolishing it altogether [the author of the Code Frederic for instance; Cocceiji, chancellor to the late king of Prussia. See the preface to that work.] Without entering into a discussion which is not to the present purpose, it will be sufficient here to observe, that not only the regard due to old-established privileges, and long-existing usages, but the success of the very system here proposed, though established in so great a degree at the expense of the power in question, may depend upon the leaving that power in possession of a very considerable degree of force. If a man were allowed no power at all over what property he left behind him, he would, in many instances, either be indifferent about getting it, or spend it as fast as he got it, or transfer it to some happier clime, where the interests of the community were better understood, and the feelings of individuals treated with more respect; and, in fact, a great part of the value of all property would be thus destroyed.
[* ]If without provocation on the part of my children, I were to let in strangers, or mere collateral relations, for an equal share of my fortune, my children would feel themselves injured, other people would look upon them as injured, my behaviour to them would be universally regarded as cruel or unnatural. A man is considered, indeed, as having his own fortune pretty much in his power, as against one child in comparison with another, but very little so as against his children taken together, in comparison with collaterals or strangers.