The Online Library of Liberty

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• Errata—vol. III.
• Defence of Usury; Showing the Impolicy of the Present Legal Restraints On the Terms of Pecuniary Bargains; In Letters to a Friend.
• Letter I.: Introduction.
• Letter II.: Reasons For Restraint—prevention of Usury.
• Letter III.: Reasons For Restraint—prevention of Prodigality.
• Letter IV.: Reasons For Restraint—protection of Indigence.
• Letter V.: Reasons For Restraint—protection of Simplicity.
• Letter VI.: Mischiefs of the Anti-usurious Laws.
• Letter VII.: Efficacy of Anti-usurious Laws.
• Letter VIII.: Virtual Usury Allowed.
• Letter IX.: Blackstone Considered.
• Letter X.: Grounds of the Prejudices Against Usury.
• Letter XI.: Compound Interest.
• Letter XII.: Maintenance and Champerty.
• Letter XIII.: To Dr. Smith, On Projects In Arts, &c.
• A Manual of Political Economy: Now First Edited From the Mss. of Jeremy Bentham.
• Chapter I.: Introduction. *
• Chapter II.: Analytical Survey of the Field of Political Economy.
• Chapter III.: Of Wealth.
• Chapter IV.: Of Population.
• Chapter V.: Of Finance.
• Chapter VI.: Operation of a Sinking Fund On the Production of Wealth.
• Chapter VII.: Noscenda.
• Observations On the Restrictive and Prohibitory Commercial System; Especially With a Reference to the Decree of the Spanish Cortes of July 1820.
• Preface.: Observations, &c.
• Section I.: Nature of the Prohibitory System.
• Section II.: Mischiefs of the Prohibitory System.
• Section III.: Causes of the Prohibitory System.
• A Plan For Saving All Trouble and Expense In the Transfer of Stock, and For Enabling the Proprietors to Receive Their Dividends Without Powers of Attorney, Or Attendance At the Bank of England, By the Conversion of Stock Into Note Annuities.
• Introduction.
• Chapter I.: Plan For the Creation, Emission, Payment, and Eventual Extension, of a Proposed New Species of Government Paper, Under the Name of Annuity Notes.
• Chapter II.: Form of an Annuity Note. (see Table II.)
• Chapter III.: Comparison of the Proposed, With the Existing Government Securities, &c.
• Chapter IV.: Grounds of Expectation, In Regard to the Proposed Measure.
• Chapter V.: Financial Advantages.
• Chapter VI.: Advantage By Addition to National Capital.
• Chapter VII.: Advantage By Addition to Commercial Security.
• Chapter VIII.: Particular Interests Concerned.
• Chapter IX.: Rise of Prices—how to Obviate.
• Chapter X.: Reduction of Interest—proposed Mode Compared With Mr. Pelham’s.
• Chapter XI.: Moral Advantages.
• Chapter XII.: Constitutional Advantages.
• Chapter XIII.: Recapitulation and Conclusion.
• Appendix A.: Government Ought to Have the Monopoly of Paper Money, As Well As of Metallic Money.
• Appendix B.: Paper Money—causes Why Not Circulated By Government Without Interest, As Well As By Individuals.
• General View of a Complete Code of Laws.
• Chapter I.: General Division.
• Chapter II.: Relations Between the Laws Concerning Offences, Rights, Obligations, and Services.
• Chapter III.: Relation Between the Penal and Civil Code.
• Chapter IV.: Of Method.
• Chapter V.: Plan of the Penal Code.
• Chapter VI.: Of the Division of Offences.
• Chapter VIII. Titles of the Penal Code.
• Chapter IX.: First General Title of the Civil Code, * of Things.
• Chapter X.: Second General Title of the Civil Code. of Places.
• Chapter XI.: Third General Title of the Civil Code. of Times.
• Chapter XII.: Fourth General Title of the Civil Code. of Services.
• Chapter XIII.: Fifth General Title of the Civil Code. of Obligations.
• Chapter XIV.: Sixth General Title of the Civil Code. of Rights.
• Chapter XV.: Seventh General Title of the Civil Code. of Collative and Ablative Events.
• Chapter XVI.: Eighth General Title of the Civil Code. of Contracts.
• Chapter XVII.: Ninth General Title of the Civil Code. of the Domestic and Civil States.
• Chapter XVIII.: Tenth General Title of the Civil Code. of Persons Capable of Acquiring and of Contracting.
• Chapter XIX.: Of the Particular Titles of the Civil Code.
• Chapter XX.: Of Elementary Political Powers.
• Chapter XXI.: Of Elementary Political Powers— Subject Continued.
• Chapter XXII.: Plan of the Political Code.
• Chapter XXIII.: Plan of the International Code.
• Chapter XXIV.: Plan of the Maritime Code.
• Chapter XXV.: Plan of the Military Code.
• Chapter XXVI.: Plan of the Ecclesiastical Code.
• Chapter XXVII.: Plan of Remuneratory Laws.
• Chapter XXVIII.: Of Political Economy.
• Chapter XXIX.: Plan of the Financial Code.
• Chapter XXX.: Plan of Procedure Code.
• Chapter XXXI.: Of the Integrality of the Code of Laws.
• Chapter XXXII.: Of Purity In the Composition of a Code of Laws.
• Chapter XXXIII.: Of the Style of the Laws.
• Chapter XXXIV.: Of the Interpretation, Conservation, and Improvement of a Code.
• Pannomial Fragments.
• Chapter I.: General Observations.
• Chapter II.: Consideranda.
• Chapter III.: Expositions.
• Chapter IV.: Axioms.
• Nomography; Or the Art of Inditing Laws: Now First Published From the Mss. of Jeremy Bentham.
• Chapter I.: The Subject Stated.
• Chapter II.: Relations.
• Chapter III.: Proper End In View.
• Chapter IV.: Imperfections Primary.
• Chapter V.: Explanations Relative to the Imperfections of the Second Order.
• Chapter VI.: Of Remedies. *
• Chapter VII.: Of Language.
• Chapter VIII.: Of the Perfections of Which the Legislative Style Is Susceptible.
• Chapter IX.: Of Forms of Enactment.
• Appendix. Logical Arrangements, Or Instruments of Invention and Discovery
• Equity Dispatch Court Proposal; Containing a Plan For the Speedy and Unexpensive Termination of the Suits Now Depending In Equity Courts. With the Form of a Petition, and Some Account of a Proposed Bill For That Purpose
• Section I.: Purpose Explained. Jeremy Bentham to the Honest and Afflicted Among Equity Suitors.
• Section II.: Equity Suitors’ Petition For Dispatch Court. to the King’s Most Excellent Majesty, —
• Section III.: Dispatch Court Bill—some Account of It.
• Section IV.: Information Requisite From Petitioning Suitors.
• Equity Dispatch Court Bill: Being a Bill For the Institution of an Experimental Judicatory Under the Name of the Court of Dispatch, For Exemplifying In Practice the Manner In Which the Proposed Summary May Be Substituted to the So Called Regular Sy
• Editor’s Note.
• Preface.
• Preamble.
• Part I.—: Judiciary.
• Section I.: Judge Located, How.
• Section II.: Remuneration.
• Section III.: Registrar, &c.
• Section IV.: Eleemosynary Advocate.
• Section V.: Judges’, &c. Deputes.
• Section VI.: Judge’s Powers—exemptions—checks.
• Section VII.: Prehensors and Messengers.
• Section VIII.: Consignees; * Or Say, In-trust-holders.
• Section IX.: Grounds of Decision For the Dispatch Court Judge.
• Section X. ‡: Suits’ Comparative Suitableness; and Order of Cognizance.
• Section XI.: Auxiliary Judges and Accountants.
• Section XII.: Sittings, Times Of.
• Part II.—: Procedure.
• Section XIII.: Definitions. *
• Section XIV.: Examination of Solicitors.
• Section XV.: Initiatory Examination of Parties, &c.
• Section XVI.: Appropriate Intercourse, Constant and Universal, Secured.
• Section XVII.: Mutual Security For Forthcomingness of Persons and Things. ‡
• Section XVIII.: Evidence-procuring Money, How Provided.
• Section XIX.: Subsequential Evidence, How Elicited.
• Section XX.: Execution, How Performed.
• Section XXI.: Equity Court Costs, How Disposed Of.
• Section XXII.: Dispatch Court Costs, How Disposed Of.
• Section XXIII.: Eventual Retrotransference of a Suit to the Equity Court.
• Section XXIV.: Expense of the Court, How Provided For.
• Supplemental Sections:—
• Section I. Or XXV.: Bankruptcy and Insolvency.
• Section II. Or XXVI.: Henceforward Dispatch Court.
• Schedules to the Bill.
• Plan of Parliamentary Reform, In the Form of a Catechism, With Reasons For Each Article: With an Introduction, Showing the Necessity of Radical, and the Inadequacy of Moderate, Reform.
• Introduction.
• Section I.: History of the Ensuing Tract—alarming State of the Country and the Constitution.
• Section II.: Most Prominent Present Grievance, Gareisoning France.
• Section III.: Causes of the Above and All Other Mischiefs:—particular Interests Monarchical and Aristocratical, Adverse to the Universal—their Ascendency.
• Section IV.: Sole Remedy In Principle—democratic Ascendency.
• Section V.: Remedy In Detail: Radical Parliamentary Reform: Elementary Arrangements In This Edition of It—their Necessity.
• Section VI.: Differences Between This and the Original Editions of Radical Reform.
• Section VII.: Virtual Universality of Suffrage Further Considered.
• Section VIII.: Virtual Universality of Suffrage—its Undangerousness.
• Section IX.: Freedom of Suffrage Further Explained—seductive Influence—its Forms, Instruments, &c.
• Section X.: Bribery and Terrorism Compared.
• Section XI.: Purchase of Seats—in What Cases Mischievous—in What Beneficial.
• Section XII.: Secresy of Suffrage—its Importance Further Developed.
• Section XIII.: Exclusion of Placemen, &c. From the Right of Voting—mischievousness and Profligacy of the Opposite Arrangement.
• Section XIV.: Universal Constancy of Attendance—its Importance.
• Section XV.: Representatives—impermanence of Their Situation—its Importance:—objections—their Groundlessness.
• Section XVI.: Moderate Reform—its Arrangements—their Inadequacy.
• Section XVII.: Trienniality Inadequate;—annuality Necessary.
• Section XVIII.: Interests Adverse to Adequate Reform—support Given By Them to Moderate, to the Exclusion of Radical: Tories—whigs—people’s Men.
• Catechism of Parliamentary Reform; Or, Outline of a Plan of Parliamentary Reform; In the Form of Question and Answer; With Reasons to Each Article.
• Section I.: Ends to Be Aimed At On the Occasion of Parliamentary Reform.
• Section II.: Means, Conducive Towards These Ends.
• Section III.: Means—their Uses, With Reference to Their Respective Ends.
• Section IV.: Means Conducive to Aptitude In Members: I. Placemen Not to Vote, Nor to Be Seated By Election.
• Section V.: Means, &c. Continued.—ii. Placemen Seated By the King, With Speech and Motion, Without Vote.
• Section VI.: Means, &c. Continued.—iii. Elections Frequent—annual.
• Section VII.: Means, &c. Continued.—iv. Speeches Authentically and Promptly Published.
• Section VIII.: Means, &c. Continued.—v. Attendance, Punctual and General, Secured.
• Section IX.: Inconveniences Incident to Elections, and Election Judicature.
• Section X.: Election Inconveniences—means For Their Removal.
• Section XI.: Collateral Advantages, Referable to the Situations of Electors, Placemen, Lords, &c.
• A Sketch of the Various Proposals For a Constitutional Reform In the Representation of the People, Introduced Into the Parliament of Great Britain, From 1770 to 1812.
• Radical Reform Bill, With Extracts From the Reasons.
• Preliminary Explanations.
• Title of the Proposed Act.
• Preamble.
• Section 1.—: Seats and Districts.
• Section 2.—: Electors, Who.
• Section 3.—: Eligible, Who.
• Section 4.—: Election Offices.
• Section 5.: Election Apparatus.
• Section 6.—: Promulgation of Recommendations In Favour of Proposed Members.
• Section 7.—: Voters’ Titles Pre-established.
• Section 8.—: Election, How.
• Section 9.: Election Districts and Polling Districts, How Marked Out.
• Section 10.—: Vote-making Habitations, How Defined.
• Section 11.—: Members’ Continuance.
• Section 12.—: Vacancies Supplied.
• Section 13.—: Security For the House Against Disturbance By Members. †
• Section 14.—: Indisposition of Speakers Obviated.
• Appendix, Including General Explanations.
• Radicalism Not Dangerous. Extracted From the Mss. of Jeremy Bentham. *
• Part I.—: Introduction.
• Section I.: Radical Reform Bill Recapitulated.
• Section II.: Persuasion of the Dangerousness of Radicalism—cause of It, and of the Vituperative Expression Given to It.
• Section III.: Terms of the Accusation,—speeches From the Throne, 16 Th July and 21 St November 1819.
• Section IV.: The Accusation In General Terms—counter-averment.
• Section V.: Plan of This Defence.
• Part II.—: Deference From the General Nature of the Case.
• Section I.: Conditions Necessary to a Man’s Embarking In Such a Design.
• Section VII.: Concurrence In Any Other Extensive Plan of Spoliation Impossible.
• Section VIII.: Concurrence of Any Constituted Authorities Impossible.
• Section IX.: Accomplishment Impossible—design Impossible.
• Section X.: The Talked-of Spunge No Proof of the Design.
• Part III.—: Defence From Experience In the Case of the United States.
• Part IV.: Defence From Particular Experience In the Case of Ireland: Years 1777 Or 1778, to 1783.
• Section I.: Analogy Between This and the Previous Case.
• Section II.: Democratic Ascendency, How Produced.
• Section III.: Fruit of Democratic Ascendency a Golden Age.
• Section IV.: Coincidence of Its Characters With Those of Radicalism.
• Section VI.: Extinction of Democratic Ascendency and Reform—restoration of Monarchico-aristocratical Ascendency, and Its Consequences.
• Conclusion.

CHAPTER XVI.

EIGHTH GENERAL TITLE OF THE CIVIL CODE.

Of Contracts.

Section 1.

Contracts are acts of collation or investment—conventions—laws more or less ephemeral, proposed by individuals, and adopted by the sovereign, provided they are valid. To what ought he to grant the seal of his authority? I answer, to all. For no private contracts would be made, except with a view to reciprocal advantage, and they cannot be restrained, without in the same proportion injuring the happiness of individuals. Entire liberty for contracts,—such would be the general rule. If there be any to which this sanction should be refused, it will always be for some particular reason. The reasons for declaring certain contracts invalid or unlawful, ought to be drawn from the nature of the contracts themselves, inasmuch as they are contrary to the public interest;—or to the interest of a third party, or to that of the contracting parties.

The exceptions should be indicated under a separate head. It would be proper that a catalogue of the contracts to which the law either absolutely or conditionally refuses its sanction, should be found in the code itself.

The law ought to act with openness: when it grants its sanction to a contract, it ought not to withdraw it secretly on account of conditions not avowed as such.

To enhance the cost of procedure, is to violate the promise it has made to sanction contracts. It is to render justice inaccessible to the poor, that is, to those who have most need of it. This is a truth none can deny, but which few have had the courage to avow.

I have employed the word contract or transaction, to express indistinctly an act of investment—an agreement or a collection—a mixture of agreements founded upon a single occasion.

This being understood, obligations may be distinguished into original and adjective. I call those original, of which express mention is made in the contract itself: I call those adjective, which the law thinks proper to add to the first. The first turn upon events which the contracting parties have foreseen; the others upon events which they could not foresee.*

It is thus that in every country the law has supplied the short-sightedness of individuals, by doing for them what they would have done for themselves, if their imagination had anticipated the march of nature.

The enlightened legislator, recognising these factitious obligations as being the work of his hands, will give them his support upon true and simple reasons, drawn from the principle of utility. Lawyers have founded these obligations upon fictions; that is to say, upon facts which never existed. Where there has been no convention, there they suppose that there have been one, two, a thousand; they have the effrontery or the folly to ascribe wishes to you which they avow you never had: and this what is called reasoning among them.

To decompose a certain contract—to show one by one all the pieces of which it is formed—to exhibit the collection of obligations included in this contract,—this is a species of mechanism hitherto unknown.

It is not only upon the author of the fundamental convention that the law imposes these adjective obligations; it imposes them also upon other persons, in consequence of certain connexions which they have with the principal person. It is thus that obligations pass to heirs, and sometimes to creditors. Why? Because their respective rights only extend to the net value of the goods of their principal.

An article which is in my custody is lost: ought I to be responsible? It is a case which divides itself into an infinity of others. It may have been of an abstract value, a sum of money, a wild animal. Ought it to be considered or not as in my custody? Did it possess the character of a loan, a deposit, or a pledge? And so on of the rest. Observe, that though in these cases mention is made of contract, there are many cases in which I may have a thing without convention, without promise, without any act of will in reference to it.

The legislator has two shoals to avoid, that of restraining services, and that of favouring negligence. If you give too great an extent to responsibility, you incur the first of these dangers—if you give too little, you incur the second.

I am not about to enter here into a critical examination of the Roman contracts: it would be a work of deadly ennui. If we were to imagine all possible defects—in their division, in their nomenclature—it would be difficult to exaggerate them. The idea of reciprocal promises, of mutual dispositions, so familiar to all the world, finds itself so obscured in this mischievous and absurd system of jurisprudence, that the lawyers, who have not ceased to explain it, always feel the necessity of new explanations. In vain they heap volumes upon volumes, light never breaks in upon the chaos.

Everything here must be done over again: a language which pretends to be learned has to be forgotten—a simple and familiar language to be taught; and those who know nothing, possess more than half an advantage over those who have to forget what the lawyers call among themselves by the name of science.

Section 2.

Division of Contracts.

A contract subsists between two parties when there exists between them a disposition either of goods or services, or a legal promise made by the one for the profit of the other.

A disposition or a transfer of goods is an act, in virtue of which a change is made in the legal right of two or more persons with regard to a certain object.

Contracts may be either momentary or permanent.

They may be divided into three classes:—

1. Promises.

2. Disposition or transfer of goods from one party to another.

3. Mixed contracts, containing both dispositions and promises.

Dispositions and promises may be either unilateral or bilateral, according to whether there is reciprocity in the engagement or not.

I.

UNILATERAL PROMISES.

1. Bail.

2. Simple deed of donation, &c.

3. Unilateral promise of marriage.

II.

UNILATERAL DISPOSITION.

1. Gratuitous donation.

2. Legacy.

3. Gratuitous loan.

4. Deposit to be gratuitously kept.

5. Hypothecation in futurum.

III.

BILATERAL PROMISES.

1. Agreement for sale, purchase.

2. Agreement for exchange.

3. Wager.†

4. Agreement carrying an obligation to enter into a certain contract.

5. Bilateral promises of marriage.

IV.

BILATERAL DISPOSITIONS.

1. Exchange.

2. Sale and purchase.

3. Exchange of money.

4. Purchase of bills of exchange.

5. Purchase of rent without mortgage.

6. Purchase of rent with mortgage.

V.

MIXED CONTRACTS, CONTAINING DISPOSITIONS AND PROMISES.

1. Loan of money, gratuitous or at interest.

2. Assurance, gratuitous or for a premium.

3. Renting a house, &c.

4. Letting a house, &c.

5. Pledging.

6. Marriage contract.

7. Contract of apprenticeship.

8. Hiring of a servant, of a workman, in a manufactory, or in agriculture or other productive labours; of a clerk, of a shopman.

9. Voluntary enrolment.

10. Donation in trust.

11. Legacy in trust.

12. Articles of partnership in commerce.

13. Deposit under an order of court.

14. Articles of partnership in manufactures.

15. Deposit in respect to a price to be paid in futurum by the depositor.

16. Loan of goods for a price in futurum.

17. Adoption.

SPECIES OF DEPOSITS.

These species are constituted by the different ends for which the contract is established.

(1.) On account of the depositor:—

1. Simply to keep the thing—housekeeper, innkeeper.

2. Simply to transfer from one place to another—carrier, captain of a vessel, for transport.

3. To improve—farrier, dyer, miller, tailor.

4. To employ without amelioration, but without consumption, that is to say, entire destruction—as tools, fixed capital of a manufacture, servants.

5. To be consumed—as wood for firing, drugs for dying, ink for writing.

(2.) On account of the depositary:—

6. Deposit of a thing gratuitously lent.

7. Deposit of a thing hired.

(3.) On account of the depositor and depositary:—

8. Association with regard to things acquired by a co-associate, for the profit of the society.

(4.) On account of the one or the other, according to the event:—

9. The pledger, and receiver in pledge.

[* ]A horse is lent: he falls ill: ought the lender or the borrower to pay for his cure? A room is let, without mention being made of for what time—what notice ought to be given to the occupier before he is obliged to quit? According to the variety of contracts, and of things which are the subjects of them, a corresponding variety of adjective obligations is required.

[† ]The species of contract called wagering ought to be an object of particular attention. According to the application which is made of it, it may include in itself all the force of a law, and of a law which acts with the double sanction of punishment and reward. It may be employed in the way of subornation for all imaginable crimes. Bet, for example, that a certain person does not live beyond a certain time, and trace the consequences which such a bet may have.

In the case of losses by fire and shipwreck, assurance is only a species of wager; and its effects as an instrument of subornation are only too well known.

It may have a mischievous effect by its application to adjective law—to procedure. During the time that the sex of the Chevalier D’Eon was doubtful, it became the subject of a wager. The action was brought in one of the courts of Westminster, and many persons were called to appear and depose upon this subject. This species of wager might be designated by the name of wager of vexatious inquisition.