Front Page Titles (by Subject) CHAPTER IX.: FIRST GENERAL TITLE OF THE CIVIL CODE, * Of Things. - The Works of Jeremy Bentham, vol. 3
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CHAPTER IX.: FIRST GENERAL TITLE OF THE CIVIL CODE, * Of Things. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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FIRST GENERAL TITLE OF THE CIVIL CODE,*
We begin with things. Robinson Crusoe is represented as living many years, without exercising his power over persons. He could not have been so long without exercising his power over things.
The species into which things may be divided are innumerable, and there is not one of them which may not fall under the cognizance of the law; since all the productions of art, all the objects in nature, are comprised within its domain. If it were necessary to mention each separately, the Encyclopædia itself would only form one chapter of legislation. But in this immensity, we have occasion only to notice those things respecting which the law has established differences in the manner of acting with regard to them—those things which have served it as a foundation upon which to build obligations and rights. By means of certain general divisions, we shall be able easily to govern this vast subject. We shall arrange them according to their source, their employment, and their nature.
Division I. Things are either natural or artificial.—To the first head may be referred those things to which their respective names may be applied when in the condition in which they come from the hands of nature, before they have been modified by the labour of man; that is to say, the earth, its different parts, and the productions to which it gives birth. Under the name of artificial or factitious, those may be comprehended which only acquire their respective names in virtue of qualities given them by human labour. Hence, a field, though cultivated—a vine, though planted—even a live hedge, would be natural things. A house, a wine-press, a dead hedge, would be artificial things. These two classes will meet in an infinity of points, and there is no fixed line of demarcation by which to separate them. Still, a line of demarcation will be absolutely necessary in a code of laws. It is necessary to have one among those objects with which the law intermeddles for the sake of peace; without it, disputes would be interminable. The line will be more or less arbitrary, but this is of no consequence, provided that it exist.
Division II. Things moveable and things immoveable.—Another positive line of demarcation. Houses are generally immoveable. But they have been made of wood, and of iron, and have traversed along the roads.† Like the Scythians of old, the Tartars of our days are only lodged in this manner. Ships are houses. Some ships are little floating towns. Mountains and hills sometimes slip down. Large tracts of land have changed their sites. Such events are common in volcanic countries. To these ravages of nature the scourge of chicanery too often succeeds, and sits down among the ruins to dispute their possession.
Division III. Things employable and things consumable.—The first may be used without changing their form;—the second cannot be used without being destroyed. To the first head may be referred houses, vessels, &c.;—to the second, eatables and drinkables, &c. The latter are the things fungible of the Roman law. Take another step, and we shall find ourselves stopt short for want of a line of demarcation. This wood, which may serve either for building a house, or warming an oven; this ox, which may draw a plough, or which may be driven to the butchers: are these things, or are they not things fungible? All nature is one continual round of revolutions: everything which she employs, she consumes; everything which she destroys under one form, she reproduces under another. The distinction between these two conditions, though sufficiently clear in certain objects, is too slight in the general system of things to be of great utility.
Division IV. Things which are individually valuable and things which are valuable in mass.—To the first head may without difficulty be referred houses, furniture, clothes; to the latter, metal in the rough state, seeds, &c. This distinction is still very uncertain, and does not proceed far before it produces confusion. Useful in some cases, it would be useless in a multitude of others. Many things may be valued indifferently in both manners. The legislator, in tracing these divisions, would require a logician at his side; but surveyors are required for land, the surveying of ideas is an operation not less necessary, and more difficult.
Division V. This is one which the Roman lawyers have not dreamed of, and which is worth all the others. Since they have classed animals among things, they ought to have distinguished things into two classes,—sensible and insensible. The brazen cow of Myron was, in their eyes, of the same class as the living cow which he employed as his model. But how should they have distinguished the inferior animals from things—they among whom man himself, when he had the misfortune to fall into a state of slavery, was no more than a thing? And who shall say how much the condition of animals and slaves was aggravated by this cold and cruel classification? The law which ought to have protected them, began by giving an idea of them which degraded them. It spoke of them as if it would extinguish in every heart every feeling of tenderness for them—as if it would make us forget that there was any point of community between us. Error for error,—I would rather love the folly which adored the brutes, than the cruelty which ill treated them. Yes, I would rather pardon the hideous caprices which fable paints of Pasiphae, than those frightful bull fights of which the art consists in carrying the suffering and the rage of the expiring animal to the highest point, for the amusement of the barbarous spectators.
Division VI. Simple things or individuals—complex things or collections of things.—Among complex things, those should be distinguished which are naturally complex, from those which are so from institution.
A complex thing may either be a collection of simple things equally principals, or a thing which is regarded as principal, united to others which are regarded as accessaries.
A heap of corn is a collection of things equally principal. A field with certain plants and buildings is a collection of things, where some are principals and some accessaries. The bond which unites them is natural. But an inheritance, of which the objects are scattered—a stock in trade—the respective fortunes of two persons who intermarry,—these are examples of complex things, which are connected only by a bond of institution, such as the identity of the proprietor, and the disposition of the law.
Questions to be decided:—In case of dispute, which is the principal thing?—which are the accessaries? In what cases ought the disposition made with respect to the one, to comprehend the others? This depends upon contracts. It would therefore require a reference to this title.
What shall we say of the famous division among the Romanists, of things corporeal and things incorporeal; that is to say, of things which do not exist, which are not things? It is a fiction which only serves to hide and to augment the confusion of ideas. All these incorporeal things are only rights either to the services of men, or of real things: this will be shown in treating of rights.
If a thing interest sufficiently to become the object of a law, it is only as it possesses a certain value. Now this value is susceptible of many modifications, which require to be marked out. Ought these modifications to be treated of under a general title, or should they be reserved for the particular titles of the offences which affect them—as, for example, for that of waste? This is a question which can scarcely be resolved until all parts of the code have been considered.
Everything which exists, exists in a certain quantity; and the quality being given, the value of the thing will be in proportion to that quantity. To express these quantities, measures are required. These measures express either the quantity of the matter, or the space which it occupies: they are weights, or measures of extent. Hence we see that definitions of the measures of every kind, and the regulation of their proportions, ought to form a general title, and is necessary to complete a code of laws.
There is difficulty not only in distinguishing species: there is sometimes much difficulty in distinguishing individuals.
Individuation—(if we may coin this term.) This is one of the first cases which should occupy a legislator under each particular title which demands it. A house is let: but what ought to be comprehended under this term? does it comprehend the tapestry, the locks, the brewing tubs, the cisterns? What is to be understood by a square acre? does it extend without limits into the interior of the earth, and above the surface? &c.
The Roman lawyers, who have talked so much about things, have never arrived at clear ideas upon this subject.
Things, says Justinian, are either out of the patrimony of individuals, or belonging to this patrimony. They are either by divine law, or by human law. Things by divine law are also either sacred, or religious, or holy. Things by human law are either belonging to individuals separately, or belonging to all the community indistinctly; that is to say, private or common.* Here there are distinctions in form. But there is a great show, and little accomplished.
It might be imagined that the legislator was about to give specific names to all the things which composed these classes, but we should be deceived. He has carefully avoided this labour; he has abandoned it to the disputes of the lawyers:—“I, the legislator, know not how to explain my will to you; it is your duty, who must obey me, to divine my meaning!”
What would be said to a master who should explain his orders in so confused and vague a manner to his inferiors; who should speak to them of things in general, without speaking to them of things specific and individual; and who should punish them for not having known how to comprehend what he has not known how to express?
The history of Nebuchadnezzar is a noble apologue for legislators: he ordered the wise men to be slain because they did not divine his dreams. How many makers of laws have done the same, without, like him, being turned out among the beasts.
[* ]The nine following Chapters might have been placed among the Principles of the Civil Code, but as the objects are therein considered in an abstract and scientific manner, I have thought it better to insert them in this part of the work, which is, so to speak, the skeleton of jurisprudence.
[† ]Doctor Fordyce built one which he sent to the Antilles. It was made of pasteboard and paper.
[* ]Inst. lib. ii. tit. 1.