Front Page Titles (by Subject) CHAPTER XIX.: OF THE PARTICULAR TITLES OF THE CIVIL CODE. - The Works of Jeremy Bentham, vol. 3
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CHAPTER XIX.: OF THE PARTICULAR TITLES OF THE CIVIL CODE. - 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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OF THE PARTICULAR TITLES OF THE CIVIL CODE.
In the Penal Code, the titles are easily arranged: they correspond with the catalogue of offences. It is not the same with the Civil Code: the particular titles may equally be placed under any of the general titles, as we shall soon see.
It is not possible to complete a penal code without having determined the plan of the civil code; for to have a complete penal code, it is necessary that the whole body of the law should be found included there—at least by reference. Thus true is it that the idea of a complete penal code includes in itself the complete idea of all the subjects of the other codes. But when all the materials are collected, it remains still to assign them their places.
What is the clue to guide us in this distribution? It is still the principle of utility.
The laws being given, why has the legislator prepared them? The answer is simple, as it is incontestable: “With the intention that each disposition should be present to the minds of all those who are interested in the knowledge of it, at the moment in which this knowledge may furnish them with motives for regulating their conduct.” For this purpose it is necessary—1. That the code be prepared altogether in a style intelligible to the commonest understanding. 2. That every one may consult and find the law of which he stands in need, in the least possible time. 3. That for this purpose the subjects be detached from one another, in such manner that each condition may find that which belongs to itself, separated from that which belongs to another.
“Citizen,” says the legislator, “what is your condition? Are you a father?” Open the chapter “Of Fathers.” “Are you an agriculturist?” Consult the chapter “Of Agriculturists.”
This rule is both simple and satisfying. Once announced, it is comprehended: it cannot be forgotten. All legislators ought to follow so natural a method, says Philosophy—Not one of them has ever dreamt of it, replies the lawyer.
The catalogue of all these conditions may be found in the body of the laws, under two different orders. Under the general title of States or Conditions, it may be placed in an analytical and systematic form, for the instruction of lawyers. In the index it ought to be found in alphabetical order, for the convenience of the subjects.
There are many subjects which might be sought for indifferently, under more than one title: but in all cases in which either a concrete or an abstract name may be given to a title, the concrete name ought uniformly to be employed in the text, and the abstract name referred to the index. Thus in the text ought to be found the titles of Husbands, of Wives, and not that of Marriage; the title of Heirs, and not that of Successions.
But all these titles rejected from the text, ought to be carefully collected in the index; for it is with respect to this appendix to the book, altogether different from what it is with respect to the book itself—the more voluminous it is, the more easily it is consulted.
After the titles drawn from persons, come those drawn from material beings—from things. These are preferred to abstract titles for two reasons:—1. Because they must naturally present themselves to the least instructed minds; 2. Because the catalogue is more ample and uniform.
At last we reach the titles drawn from the different kinds of contracts. It is true that the names of contracts are abstract terms: but contracts are the acts of persons, and there is no kind of contract which does not give a particular name to the persons who engage in it. It is not necessary, therefore, to employ concrete titles, but reference may be made to the persons themselves. Thus, instead of saying purchase, sale, borrowing, lending, we may say, purchaser, seller, borrower, lender. This method will better preserve the uniformity of the plan, and the great end of the arrangement, which is to present to every one that which belongs to him, separate from what does not belong to him. Besides, all contracts have not two correlative names which correspond with those of the two contracting parties. The greater number have but one—for example, deposit, assurance. Also with regard to each contract, there may be others beside the mutual obligations—there may be particular obligations on particular parties: instead, therefore, of heaping them all under the head of assurance or deposit, it would be better to make two separate articles,—assurer, assured—depositor, depositary.
Under this point of view, the titles of things contracted for would only be a consequence—a subdivision of the personal titles.
A question to be cleared up:—There are few contracts which do not in some manner or other refer to things. Such a contract being supposed, ought the text of the laws regarding it to be found under the title of contracts, or under that of things?
If it refer to things in general, and dispositions in general, it should be placed under the title of contracts. If it refer to a particular kind of thing, and a disposition which only applies to this kind, and not to another, it should be placed under the title of things. Example, sale of a horse;—the seller bound to warrant it free from certain diseases, unless he stipulates to the contrary;—the warranty does not apply to other kinds of animals. It would be better that this obligation should be found under the title of horses, than under that of sellers, since it does not attach to any other kind of seller beside the seller of horses.
The following is an idea of the subordinate titles which would find place under a real title. I take for example, that of horses:—
It is to be observed, that regard is solely paid to the arrangement, and not the matter. The laws which are or have been cited, are cited without deciding whether they are good or bad: they are counters which I use in reckoning—it would be misapplied labour to examine their defects in this place.
1. Persons incapable of acquiring property in horses, or to whom the acquisition is interdicted. Ex. Catholics in England, with respect to horses of a certain value. Written law of England. (Offence against the sovereignty.)
2. Particular means of acquiring them: capture of a highway robber on horseback, and conviction of the delinquent. (Written law of England—remuneratory law.)
3. Limitations of the right of occupation. Cruelty prohibited. Prohibition as respects the using of them for riding by Christians. (Law in certain provinces of Turkey.) Prohibition of the exportation of war horses Offence against the public force.
4. Acts commanded connected with their use. Marks to be imprinted upon hired horses, that thieves who use them may be recognised, or that the individuality of the animal may be proved, for the purpose of levying a tax upon it. Reference to the personal titles of post-horse keepers, carriers, innkeepers, &c.
5. Limitations of exclusive property;—rights granted to public officers to employ them on certain conditions—to seize them for the military service—to destroy them for the purpose of stopping an epidemic, &c.
6. Limitation of the right of disposal—Example, prohibition to export, &c.
7. Adjective obligations attached to the rights of occupation. Ex. Taxes to be paid periodically. Taxes to be paid occasionally at turnpikes. Obligations imposed in consequence of borrowing, hiring, pledging, forced labour,—as of feeding, physicking, &c. Reference to the titles of contracts, borrowers, lenders, hirers, travellers, &c.
8. Adjective obligations attached to the right of disposal. Example: Presumed warranty against disease and other defects.
9. Adjective rights over services attached to the right of occupation. Right to cause the horses to be received and taken care of by innkeepers, farriers, &c. Reference to the personal title of people in trade, in which is exhibited the obligations under which they exercise their respective trades, of serving whoever requires them. (Offence, non-reddition of service.)
10. Adjective rights over services attached to the right of disposal. Example, Right of having a place assigned for one’s horse in a horse market, by the person employed in keeping the market. (Offence, non-reddition of service.)
It may be remarked, that the particular titles of the civil code are not constructed in the same manner as those of the penal code. In the latter, the point of re-union is the identity of the kind of act which is referred to: everything is referred, for example, to theft, homicide, adultery, &c. In the titles of the civil code, the point of re-union is the identity of the person or the condition:—everything is referred to fathers, husbands, masters, guardians, &c. There is, however, a more distant point of view, in which all distinctions disappear. If the distinctive principle of the personal codes are completely followed out, it will be found that the particular titles of the penal code belong to them; for to commit an offence is to become a delinquent—a thief, a seducer, an assassin, a forger, &c. The agent might receive his denomination from the act.
Doubt to be cleared up:—In most cases the same law necessarily bears upon two persons at least at one time;—he upon whom an obligation is imposed—he upon whom a right is in consequence conferred. Under each of these two titles the law ought to be mentioned; but under which of them ought it to be stated at full length? This depends upon circumstances, and the choice is not of much consequence.
The most natural procedure appears to be this. Present the entire law to that one of the parties who has most need to be instructed. Which, then, is this party? It is commonly him upon whom the duty is imposed, because of the penalties which accompany the infraction of this duty,—because the punishments which the law is forced to employ are generally stronger than the rewards or advantages which it confers.
There are also other reasons for preferring this arrangement:—
1. There are many cases in which the favoured party is the whole public, and not an individual; for example, taxes. All that it is necessary to address to the public in the general penal code, is the definition of the offence—non-payment of taxes, with suitable references. Those things which serve to indicate the different taxes imposed, and the accessary obligations added for insuring the collection of these same taxes, should be referred to the particular titles of the different classes taxed, and of the persons charged with the collection of the taxes.
2. The party upon whom it is wished to impose an obligation, is necessarily easily pointed out and distinguished. The legislator, without doubt, ought not to be ignorant what classes he intends to favour; but there may be many classes favoured by the same right, and it may be more difficult to particularize them.
3. It may also happen, that certain classes may find themselves favoured, of whom the legislator did not think. When a tax, for example, is laid upon a certain species of linen,—the object of the tax, as such, may only have been the general good of the state in respect of its wants, which have rendered contributions necessary. The public in general will have been the party intended to be favoured, without thinking of any other. There may, however, be a class of men who will derive from it a more immediate advantage: such would be found in persons engaged in a rival manufactory, manufacturing a species of cloth more or less suitable for the same purposes.
This detail would have been unnecessary, except for the light it throws upon the plan of distribution; for otherwise, it is of little consequence whether the law be placed under one title or another, provided the references are sufficiently numerous and well chosen, and that the mass be divided in such manner that each class be only charged with such matters as particularly interest it.
Such is the plan of distribution which I would propose for matters of civil law. It appears to me the clearest—that in which the atoms of the law would most easily arrange themselves around their centre, by an attraction which appears natural in proportion as it is simple. The sketch of this plan may not be in sufficient detail for those who have not attained a certain degree of legal knowledge; but those who have studied what has been honoured with the name of system—those who have penetrated into the labyrinth of the civil laws, will at once be sensible how new this plan of distribution is, and that if it have any merit, it is that of introducing a uniform principle, which presides over the whole arrangement.