Front Page Titles (by Subject) CHAPTER XVIII.: OF DERIVATIVE, INCLUDING TRANSCRIPTIOUS, RECORDATION, WHEREIN OF REGISTRATION. - The Works of Jeremy Bentham, vol. 6
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CHAPTER XVIII.: OF DERIVATIVE, INCLUDING TRANSCRIPTIOUS, RECORDATION, WHEREIN OF REGISTRATION. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF DERIVATIVE, INCLUDING TRANSCRIPTIOUS, RECORDATION, WHEREIN OF REGISTRATION.
Derivative Recordation or Registration, its uses.
A contract (suppose) is entered into,—an agreement—a conveyance—a last will made,—the dispositions of which it is to consist settled,—the words expressive of those dispositions committed to writing:—the operation of writing finished, the paper, parchment, or other substratum, on which the written characters stand expressed, becomes thereby an instrument of contract. This done, by this same operation, a sort ofrecordation, which may be termed original recordation, is performed. Grounded on this, deduced from this, any act of recordation or registration (for the terms are synonymous, or nearly so) may, with reference to it, be termed derivative;—and, in so far as the words of the original are copied without variation, transcriptious: as to the uses of this operation, considered in a general point of view, it will be seen that they bear a necessary reference to the different descriptions of persons, in favour of whom, or at the charge of whom, the operation, and its product, may be attended with effect.
1. To parties and their representatives, it may be of use, for security against any of those accidents to which, in private hands, it is the destiny of such originals to be exposed.
2. To third persons, the principal use is as against parties and their representatives; the third persons in question standing, or having it in contemplation to stand, in the relation of creditors or purchasers to one or more of the parties.
To an extent more or less considerable, the ground of pecuniary credit being necessarily composed of the style and mode of living, and apparent habitual expenditure of the party to whom credit is given, the use here is—to preserve creditors from those frauds and disappointments which have place when the property to which they trusted is clandestinely dissipated, or without equivalent transferred to other hands.
Not to speak of those financial uses, which, in so copious a stream, have under all governments been derived from this source,—in the character of collateral uses, those above mentioned, under the appellation of statistic, are too obvious to require in this place any further notice.
To what Instruments applicable.
To what instruments is this process applicable? Understand always with preponderant advantage. Answer: To all in general, saving exceptions grounded on special reasons.
And those reasons,—what are they?—Answer: Delay, vexation, and expense. On this, as on so many other occasions, by these instructive words the instrument is presented, by which, and by which alone, the line can ever with propriety be drawn between what is useful, considered with reference to a particular purpose, and what is useful upon the whole.
On the one hand, the services capable of being rendered to justice by this operation being understood;—on the other hand, the mass of collateral inconvenience, of which delay, vexation, and expense, are the component elements, being also understood:—which of the two quantities is to be deemed preponderant? Under the head of delay may be considered, either the mere consumption and loss of time (which, however, in the case of a person depending, as do the bulk of mankind, for subsistence on some profit-seeking occupation, is equivalent to expense,) or inconvenience in the same shape, with the addition of any such losses and disadvantageous incidents (including loss of opportunities of positive gain,) as may be liable to take place within the compass of that same portion of time.
To the head of vexation, inconvenience in those same shapes may, with still more direct and obvious propriety, be referred, if the effect alone being considered, the circumstance of time, considered in the character of the cause, be laid out of the account. So far as it comes under this description, the vexation liable to be found included among the results of the operation in question, may be termed vexation at large.
Vexation, in a shape in which it may be distinguished by the appellation of special vexation, is that which, in the sort of case in question, is liable to be produced by disclosure: disclosure of the pecuniary and other domestic and private concerns of the parties interested.
As affording an instance, in which, partly in respect of delay, partly in respect of vexation at large, the inconvenience resulting from the operation in question seems to be in a pre-eminent degree likely to be found preponderant, three species of contracts may here be brought to view:—draughts on bankers, bills of exchange, and circulating promissory-notes.
As affording an instance in which, in the shape of special vexation, the sort of disclosure inseparable from the operation is liable to be productive of inconvenience, and that inconvenience to be, or at least to be thought to be, preponderant, the case of last wills may, in like manner, be brought to view.
The obligation of Registering, how enforceable?
Where the performance of this operation is thought fit to be rendered obligatory—as, saving exceptions such as the above, in all cases where, for want of it, creditors or purchasers are liable to be defrauded, it surely ought to be;—by what means shall the fulfilment of the obligation be provided for?—and, in particular, shall nullification be of the number of these means?
Here, as elsewhere, the answer will depend partly upon the facility given to the operation, partly upon the certainty of the obligation being present to the mind—to the minds of those on whom, in case of non-fulfilment, the burthen of the suffering which results or is made to result as a consequence from such failure, comes to be imposed.
Sometimes improbity, more frequently indolence, perhaps indolence or negligence, are the obstacles which the obligation will have to contend with.
Employing punishment to surmount the obstacle, common honesty, under the guidance of common sense, naturally would apply the remedy to the person of that individual, and that individual alone, in whose transgression the mischief found its cause. Different, far different, has been the course taken by English lawyers. The transgression (it is manifest) is the transgression of the professional agent, manager, and adviser, leaving him untouched, nullification, instead of that, casts the punishment in every case upon some individual or other in the character of a client—upon him in whose instance ignorance and guiltlessness are always natural, ignorance, generally invincible and unavoidable—upon him, or his still more helpless representatives.
Not that even upon the transgressing law-adviser the punishment would be just, unless the directions were so clear, that without improbity or culpable negligence on his part, transgression could not have place. But, if the directions be not intelligible, or not so much as communicated to the professedly learned few, how should they be known to the ignorant and helpless multitude?
The Function, by whom performable.
If in England, as before the revolution in France, the professional agent, manager, and adviser, were, under the name of the notary, considered upon the footing of a public officer, his office might of itself with great facility be rendered, to the purpose of all instruments in which he was concerned, a sort of register-office;—in that case, and for that purpose, appropriate forms of book-keeping might by law be prescribed to him, with apt penalties in case of non-observance. Transmitted from these dispersed and occasionally ambulatory offices, to a fixed central one, duplicates would at the same time serve to secure compliance to the regulations, and minister to the general statistic purposes.
In proportion as the law of contracts was rendered determinate, intelligible, and clear, parties would be enabled, and naturally disposed to exempt themselves from the expenses of calling in, as at present, the assistance of a professional notary, or the humiliation of begging that of an honorary one. But if among the instructions contained in the printed border of the promulgation-paper, on which the contract is here supposed to be written, the non-appearance of the name of a notary on the face of an instrument were set down as a cause of suspicion, the custom of taking the benefit of such assistance would scarcely, in that case, be expected to lose anything of that constancy which belongs to it at present.
And surely, if by fixation and simplification of the service, as above proposed, the quantum of the remuneration were confined within the bounds of that moderation, of which, in the nature of the case, it is not unsusceptible, the expense, considering the degree of security that might be attached to it, is such as need not be grudged.
Quantity of Matter to be entered in the Registry.
Of the matter of each such instrument, what portion shall be subjected to this process? Here again, for the answer, recourse must be had to the so often mentioned triad. But for that cluster of opposing considerations,—the whole;—these considerations taken into the account, such parts as are called for with a predominant energy by the respective uses above indicated.
Meantime, in and by this answer, on the part of an instrument of the kind in question, the supposition of the existence of distinguishable parts is involved. Unfortunately, any more than a mathematical point, a chaos has no parts. To be in respect of, and to the extent of, such and such of its parts, subjected to registration, an instrument must in its form be composed of parts capable of being distinguished, denominated, and numbered: but, in the compound of mendacity, surplusage, and misrepresented truths, in which, in an instrument of contract in the English style, the small proportion of efficient matter, to keep it from being intelligible to those whose everything depends upon its being understood, is dissolved and drowned, effectual care has been taken that there shall be no parts.
Means of securing Transcripts against Error.
To possess so much as a single transcript exempt from the possibility of error, is a blessing which not many centuries ago would have been pronounced fabulous. Means of realizing this prodigy to any extent have now, for some years, been in familiar use. In three perfectly distinct modes has modern ingenuity furnished the means of producing this desirable effect.*
If in the article of dispatch the advantage should in the instance of these ingenious inventions, any or all of them, be found to fall short in any degree of what at first view might have been expected, the advantage in respect of authenticity and security surely is of that sort from which no defalcation can be to be apprehended from any the severest scrutiny.
This is not the place for any such thing as an exposition in detail of the facilities that might thus be afforded to the business of derivative registration;—moderate is the share of reflection that would suffice, it is supposed, to render it superfluous.
Registrar’s duty in respect of Registration.
In so far as the interest of creditors is concerned, the extent given to the application of this instrument of security will depend upon, and be in proportion to, the degree of probity that has place in that governing body, on which the condition of the aggregate mass of the community, on this and so many other particulars, depends.
Unfortunately, in this country it has been found composed in no small proportion—and that (strange to think) upon trial actually a preponderant one—of men in whose eyes the faculty at least, if not the art, of carrying on the operation of swindling with effect and impunity, upon a large scale, was too valuable to be parted with.
Under the English law of property, for the joint convenience of the members of the predatory profession, and of the fraudulently disposed individuals of the higher orders, so happily are matters disposed, that, on condition of giving to his property a certain shape,—on condition of laying out the profits of dishonesty in the purchase, for example, of land,† or even keeping his property in that shape,—a man finds himself, to an unlimited amount, empowered by law to cheat his creditors:—By rich men calling themselves Christians, with the countenance and protection of men of law calling themselves Christians, jewels of gold and silver are borrowed, and Christians are legally and regularly spoiled without redress.
Not many years ago, the question was fairly put. Noble lords and honourable gentlemen—shall they, as well as trading men, continue in possession of the means of cheating their creditors? The answer was: Trading men, no:—but in the hands of noble lords and honourable gentlemen, the power of cheating—the jus fraudandi—was a privilege too valuable to be parted with.†
By any system of registration, in proportion to the extent given to it, the swindling licence thus established and confirmed would, it is manifest, be proportionally trenched upon and infringed. Under the principles, the triumph of which was on that occasion displayed, it may be imagined what sort of reception a plan of general registration would have met with.
[* ]1. Multiplication by impression from writing.
[† ]By 3 and 4 William IV. c. 104, freehold and copyhold lands are now made liable, in courts of equity, to simple contract debts, after specialty debts are paid.