Front Page Titles (by Subject) CHAPTER XV.: SEVENTH GENERAL TITLE OF THE CIVIL CODE. Of Collative and Ablative Events. - The Works of Jeremy Bentham, vol. 3
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER XV.: SEVENTH GENERAL TITLE OF THE CIVIL CODE. Of Collative and Ablative Events. - 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.
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
SEVENTH GENERAL TITLE OF THE CIVIL CODE.
All the rights which I possess have had a commencement—all will have an end. To give to a certain event the quality of epoch from which to date the commencement of a right, is to render that event collative with respect to that right: to give to a certain event the quality of epoch from which to date the cessation of a right, is to render this event ablative with respect to this right.*
Has the sovereign established a code of laws? He has, then, given to certain events the quality of collative events, and to others the quality of ablative events. These are two important catalogues. Do you at the present moment possess a certain right? It is because with reference to this right there has happened in your favour an event which belongs to the first catalogue, and none has happened which belongs to the second. How many assertions are comprised in that assertion apparently so simple—“You possess a certain right!”
To establish what events shall belong to these catalogues, is to establish the laws.
To have formed complete catalogues of them is to have completed the code of laws. To distinguish all these events—to give them their specific denominations, is a labour of the first necessity, and yet it is altogether a new task.
I shall here confine myself to a sketch of an analytical table of the principal events, in order to show what they resemble, and from what they are distinguished. These events are very nearly the same as the usual catalogue of titles; for common wants have given a certain uniformity, a certain correspondence to the laws of all people, at least in their essential features.
1. A right begins to belong to me—this right previously belonged to some other person, or it belonged to no person. Have I found a desert island? have I gathered fruits, cut down wood, collected minerals, caught animals upon this land? If the laws of my country permit it, I shall have become a proprietor without any person having ceased to be so.
Original discovery,—first collative event with regard to things newly subjected to the dominion of man. In this manner everything was originally acquired, but in our days such acquisitions are more rare: in proportion as the world is peopled, fortunes of this kind, as well as of every other, are obtained with greater difficulty.
2. The seeds which I have gathered and sown, have produced others: the birds, the animals that I have taken, have multiplied. Here is new wealth. Second collative event,—possession of productive things.
3. Uprooted trees, large fishes driven out of their course, have been thrown upon my island. Third collative event,—possession of a receiving thing, or thing serving as a receptacle.
4. Have I employed my labour upon my own things?—have I cut the wood or the stone?—have I polished the metal or spun the flax?—have I improved the inert matter by my industry? these are new sources of enjoyment. Fourth collative event,—amelioration of one’s own things.
Let us go on to things which are already under the hands of a master. Before a new possessor can be invested with them, it is necessary that an ablative event in relation to the ancient possessor should take place. This event may be either physical or moral: physical, if it happen without human intervention, moral, if it take place through the will of an individual, or the legislature. First physical ablative event, death of the proprietor; second, fortuitous obliteration of the distinctive character of the thing, as in the cases spoken of by the Romanists under the heads confusion, commixtion, &c.† In these two cases the loss is of necessity: the individual can no longer possess the thing, or the thing can no longer be possessed by him, without his possessing at the same time other things to which he has no right.
4 and 5. These two ablative events may be both expressed by a collative event. Instead of speaking of the death of the proprietor, we may say, succession in consequence of death; instead of saying, fortuitous obliteration of the distinctive character of the thing, we may say, as above, possession of the receiving thing.
Does the intervention of man enter into the ablative act,—it is then the law alone which operates to give this effect to the event, or it is some individual who acts in concert with it; this individual can only be the original proprietor, or the new proprietor, or a third party acting for them.
6. Sixth collative event,—private disposition.
7. Seventh,—disposition on the part of the magistrate, or adjudication.
8. Other collative events,—occupation by way of seizure made at the charge of a delinquent, or judicial seizure—occupation by way of capture by a foreign enemy, or hostile seizure (booty in war.)
In governments as civilized as are those of Europe, the quality of collative events has not been accorded to these two acts without the concurrence of adjudication.
9. Occupation of a thing abandoned.—To abandon anything is one method of disposing of it. It is to divest one’s self of it, without investing any particular person with it. This amounts to giving it to the first comer.
10. Is the disposition so regulated as only to take effect when the disposer is dead, and upon condition that he has not made any contrary disposition? There is here, on the one part, donation by testament;—on the other, testamentary succession.
11. Has the disposition had for its object the fictitious thing called charge, office, right of office? it is called nomination or election. The last word is most commonly used when the right of disposition is found divided between many proprietors. The collation by which I assume an office of my own accord for my own profit, may be called assumption of office; the act by which I am divested by another, dismission; the act by which I divest myself, demission.
12. Has the disposition for its object, a right over services to be rendered by the dispositor himself? it is what is sometimes understood by the words convention, treaty, contract, &c. I wish that we could exclusively employ to this effect some new appellation, such as obligatory promise.*
Adjudication, an act of the magistrate, naturally leads to the search for some other event which has served as a motive for this act. To what purpose does the law intend that the judge shall exercise his rights? It is not for his own advantage: it is only to accomplish other legal dispositions—to give effect to other events, collative and ablative.
To make a disposition, is to apply to such an effect the power of the laws,—is to command the services of the sovereign, or the magistrates. Is the disposition a lawful one? it possesses the qualities of those to which the sovereign is ready to lend his assistance. Is it unlawful? it is of the number of those to which he refuses it.
Thus explained, a disposition may be considered under two aspects, either as serving to modify a general law, or as making by itself, under the authority of the sovereign, a particular law. In the first point of view, the sovereign is represented as making a general law, and leaving certain words blank, that they may be supplied by the individual to whom he grants the right so to do. In the second point of view, the individual makes the law, and causes it to be sanctioned by the public force. The prince becomes literally the servant of the humblest of his subjects. To make a contract, is not to implore the services of the magistrate; it is to command these same services.
For marking the commencement of a right, I have hitherto only assigned a single event; but many may concur in it. It is therefore necessary to distinguish dispositive events into simple and complex. Among the elements of a complex event we may distinguish some by the title of principals, the others by that of accessaries. With regard to a testamentary succession, for example: To give it effect, at least two different events must happen: 1. The death of the first proprietor; 2. The birth of the new proprietor: add to these the steps that the heir must take in order to furnish proofs of his character as such, and those which are necessary on the part of the magistrate, to put him into possession; you may, in this complex event, give to the two first the name of principal events, and to the acts required from the heir and the magistrate, that of accessory events.
If any of those acts, to which the quality of collative or accessory events has been given, are omitted, there are so many grounds of nullity. To grant to an act a certain collative quality, is to prescribe a formality to be attended to, under the penalty of making void the disposition to which it refers, if it be omitted.
Analyze the kind of disposition, called election, with regard to a place either in the House of Commons in England, or in the Council of State at Venice, where aristocratic jealousy has exhausted all the art of combination. How many accessory collative events!—how many grounds of nullity to be avoided!—how many formalities to be regarded!—what a series of steps to be passed over before arriving at the last term, the establishment of the right!
13. Adjudication, as we have seen, is a collative event which supposes others, without which this would not take place. It is the same with regard to possession, an event which serves to prove the anterior existence of these other collative events, and to render them useless.
Possession may be actual or ancient. That possession may be called simply actual, when the party has only provisional security, so long as no collative event is found which operates in favour of his adversary, or, what amounts to the same thing, so long as no ablative event is found which operates to his prejudice.
That may be called ancient possession, which, in consideration of its duration, it is determined shall have not only the effect of provisional investment, but also the effect of destroying every collative event which might operate to the prejudice of the party, and in favour of his adversary; such is the case which has been characterized by the word prescription.
But what is it to possess? This appears a very simple question:—there is none more difficult of resolution, and it is in vain that its solution is sought for in books of law: the difficulty has not even been perceived. It is not, however, a vain speculation of metaphysics. Everything which is most precious to a man may depend upon this question;—his property, his liberty, his honour, and even his life. Indeed, in defence of my possession, I may lawfully strike, wound, and even kill, if necessary. But was the thing in my possession? If the law trace no line of demarcation, if it decide not what is possession, and what is not, I may, whilst acting with the best intentions, find myself guilty of the greatest crime, and what I thought was legitimate defence, may in the opinion of the judge be robbery and murder.
This, then, is a matter which ought to be investigated in every code, but it has not been done in any.
To prevent perpetual equivocation, it is necessary carefully to distinguish between physical and legal possession. We here refer to the former: it does not suppose any law, it existed before there were laws; it is the possession of the subject itself, whether a thing or the service of man. Legal possession is altogether the work of the law; it is the possession of the right over a thing, or over the services of man. To have physical possession of a thing, is to have a certain relation with that thing, of which, if it please the legislator, the existence may hold the place of an investive event, for the purpose of giving commencement to certain rights over that thing. To have legal possession of a thing, is already to have certain rights over that thing, whether by reason of physical possession, or otherwise.
I have said, that to have physical possession of a thing, is to have a certain relation with that thing. This was all that I have said—this is all that I could say at first. What is that relation? It is here that the difficulty begins.
To define possession, is to recall the image which presents itself to the mind when it is necessary to decide between two parties, which is in possession of a thing, and which is not. But if this image be different with different men—if many do not form any such image, or if they form a different one on different occasions, how shall a definition be found to fix an image so uncertain and variable.
The idea of possession will be different, according to the nature of the subject—according as it respects things, or the services of man, or fictitious entities—as parentage, privilege, exemption from services, &c.
The idea will be different, according as it refers to things moveable, or immoveable. How many questions are necessary for determining what constitutes a building a lodging! Must it be factitious? But a natural cavern may serve for a dwelling,—must it be immoveable? But a coach, in which one dwells in journeying, a ship, are not immoveables. But this land, this building,—what is to be done that it may be possessed? Is it actual occupation?—is it the habit of possessing it?—is it facility of possessing without opposition, and in spite of opposition itself?
Other difficulties: In reference to exclusive possession, or possession in common—in reference to possession by an individual, or by everybody.
Ulterior difficulties: In reference to possession by one’s self, or possession by another. You are in the habit of occupying this manufactory, you alone occupy it at this hour. I say you are only my manager—you pretend to be my lessee. A creditor contends that you are my partner. This being the case, are you, or I, or are both, in possession of the manufactory?
A street porter enters an inn, puts down his bundle upon the table, and goes out. One person puts his hand upon the bundle to examine it; another puts his to carry it away, saying it is mine. The innkeeper runs to claim it, in opposition to them both; the porter returns or does not return. Of these four men, which is in possession of the bundle?
In the house in which I dwell with my family is an escritoire, usually occupied by my clerk and by what belongs to him. In this escritoire there is placed a locked box belonging to my son; in this box he has deposited a purse entrusted to him by a friend. In whose possession is the bag—in mine, in my clerk’s, in my son’s, or his friend’s? It is possible to double or triple the number of these degrees; the question may be complicated at pleasure.
How shall these difficulties be resolved? Consult first primitive utility, and if it be found neuter, indifferent, then follow the popular ideas; collect them when they have decided—fix them when they are wavering—supply them when they are wanting; but by one method or another resolve these subtilties; or, what is better, prevent the necessity of recurring to them. Instead of the thorny question of possession, substitute that of honest intention, which is more simple. In the last case which I have supposed, the Roman lawyers would have recognised only one of the four as being in possession, yet all may be honest; and the possessor may have been dishonest as well as any one of the others. In this last case, make the decision depend upon possession,—you would have a culpable person unpunished, and three persons punished unjustly;—make it depend upon honest intention,—there will neither be impunity nor unjust punishment.
Observations upon Nomenclature.
What I call a dispositive event is what is called, in the writings of jurisprudence, title. I have been fully sensible that the terms collative and ablative events have the double inconvenience of length and novelty; and I have tried to make use of the word title. I have found it equivocal, obscure, defective—spreading a mist over the whole field of jurisprudence; whilst the two other terms are clear, sufficient, and yielding instruction in themselves.
In order to exhibit every point in which the word title is defective, it would be necessary to examine a great number of phrases in which it very imperfectly expresses the idea which the term collative or ablative expresses clearly. To say to a man, you have a title, is to assert with sufficient clearness that a collative event has happened in his favour; but if I say to him, you have no longer a title, this method of speaking is very little satisfactory: it does not express why, or how, this title no longer exists; it is necessary to understand that after a collative event had occurred, it has been succeeded by another of an opposite nature.
The word title is especially defective when obligations are spoken of. Using this word, how shall it be made to appear that a collative event has happened which has subjected you to a certain obligation, or that a certain ablative event has happened which has freed you from it? The result is, that in these four cases in which it would be necessary to use the word title, it would only express the meaning in one. In the three other cases it is improper or inapplicable. It is only necessary to try it in order to discover its insufficiency.
By employing the proper word event, it is possible to form a regular class of appellations.
In reference to the individual on whom it confers a right, an event may be called collative: in reference to him upon whom it imposes an obligation, it may be called onerative.
An ablative event, with respect to him from whom it takes away a right, may be called destitutive; with reference to him from whom it takes away an obligation, it may be called exonerative.
Is it wished to give to the two epithets ablative and collative a generic name, they may be called dispositive.
There is here a series of names which have a reference to each other; here is a generic name, and subordinate specific names. Take the word title, the logical ramification is stopped at the first step: there are no species of titles; it is an absolutely barren trunk.
The radical objection against the word title is, that it is obscure—it does not exhibit things as they are. To say that an event has happened, is to speak the language of simple truth—is to announce a fact which presents an image to the mind—it is to present a picture which could be painted. To say you have a title, is to speak the language of fiction: it is to utter sounds which do not present any image, unless they are translated into other words, as we shall shortly see. To possess, to have, in a physical sense,—here there is a real fact announced in a real manner; for it is to occupy the thing, or to be able to occupy it (posse, potes, to have power over it.) To possess a thing in the legal sense, to possess rights over a thing—there is an equally real fact, but announced in a fictitious manner. To have a title, to possess a title, in relation to these rights,—there is still a real fact, but announced in a manner still more fictitious—still more removed from presenting a real image.
I would not, therefore, employ the word title as a fundamental term, but once translated from the language of fiction into the language of reality, I hesitate not to employ it. It is not luminous in itself, but when it has received light, if it be properly placed, it may serve either to reflect or to transmit it.
In making a catalogue of dispositive events, care should be taken of three things:—1. To give every one of them names formed upon the same plan; 2. To give them only such names as are species formed from the genus designated by the word event; 3. Not to place, without notice, specific names in the same rank with the generic names of which they express the species.
The names of titles ought only to be names of events. Such are occupatio, accessio, traditio. But prescription is not so any more than the species into which it has pleased the lawyers to divide prescription. The same disorder may be seen amongst contracts. A contract is an assemblage of acts; the making of a contract is therefore an event: thus certain contracts have the names of acts—stipulatio, fide-jussio. But the names to the four real contracts are not the names of events; mutuum, commodatum, depositum, pignus (they have quitted the act to fix upon the thing which has been its subject.) It would have been as easy to have said mutuatio, commodatio, depositio, pignoratio: but the Romanists have not even suspected the characters of a good nomenclature. For the designation of the contracts which they call consensual (as if the others were not so,) five of the terms employed are the names of acts—emptio, venditio, locatio, conductio, emphyteusis; two are not—societas, mandatum,—they ought rather to have said societatis initio, mandatio.
With a nomenclature which at every step confounds things which it is most necessary to distinguish, how is it possible to be understood? With the Roman nomenclature, the noblest minds have not been able to escape from chaos.
Naturalists have never so far misunderstood the rules of logic. Linnæus has reformed the system of botany, but he did not find it in such a state of confusion as is jurisprudence. Before him, no botanist had been so unskilful as to arrange in the same line germination and the tulip—ramification and corn, &c.
I have no wish to enter into infinite details to show what has been among lawyers, both the classification of titles and the principles upon which they have been founded. The Romanists, Coccejius, Blackstone, only present us with the image of chaos. Those who do not know how much nonsense is found in the books of lawyers, must often imagine that I insist too much upon these clear and common things. I can fancy my readers saying to themselves, “But all this has been repeated a thousand times.”—Oh my readers, who thus reproach me, you know but little of the profound works of jurisprudence, which you esteem from their bulk as the depositories of the science of ages! When I analyze the most simple ideas, that which appears trivial to men of sense, is a paradox to the lawyers. Truth, utility, novelty,—hitherto these three objects travel together.
[* ]What is here called a collative event has been commonly called title or means of acquisition. To be the individual in whose favour a collative event has happened, is to have a title. I shall shortly show the reason of this change of denomination.
[† ]For example, if in building a house one should honestly have employed the materials of another. If, in melting some of my metal, some of your metal should be mixed with it, &c.
[* ]The word contract, invented and used by the Roman law, is applicable indifferently to many dispositions which are not promises, such as purchases, sales, loans, &c. Besides, instead of a single disposition, it always indicates many at one time,—dispositions on both sides. Promise is the most explicit word, that which best excludes every false idea.