Front Page Titles (by Subject) CHAPTER IV.: FORMALITIES, WHAT PROPER, AND IN WHAT CASES? - The Works of Jeremy Bentham, vol. 6
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CHAPTER IV.: FORMALITIES, WHAT PROPER, AND IN WHAT CASES? - 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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FORMALITIES, WHAT PROPER, AND IN WHAT CASES?
In what contracts ought scription to be required?
In the instance of what contracts shall scription be made requisite?
In the adjustment of the answer, divers circumstances will require to be considered:
I. The importance of the contract;—viz. taking for the measure of the importance, generally speaking, the amount of the damage (estimated in money) that might result from the non-fulfilment of it.
Some sorts, however, there are, to which this measure could not apply. Such are those by which domestic condition in life is made to begin or cease: such are, for example,—
1. The marriage-contract;
2. Contract by which an apprentice is bound to a master or mistress;
3. Contract by which a guardian is appointed to a minor.
II. The natural complexity of the contract, as estimated by the variety of the obligations and rights of which it is productive,—whether absolutely and in the first instance, or eventually on the happening of such and such events.
The above may serve as examples of contracts to which a considerable degree of complication naturally attaches.
III. The state of the place in question, in respect of the proportional number of the inhabitants skilled in the art of writing, and the facility of obtaining the materials necessary for writing: in particular, the promulgation paper, if any such paper, appointed by authority for the species of contract in question, exists.
Suppose a number of persons out upon a long journey by land or water, and either none of them able to write, or none of them provided with materials for writing. It would be an unnecessary and improper hardship to say, that, amongst a number of persons so circumstanced, let the journey last for ever so great a length of time, no binding contract of any kind should take place.*
Use of attesting witnesses.—A notary should be one.
Three distinguishable advantages seem to result from the practice of having recourse to the assistance of attesting witnesses:—
One is, the additional security thus afforded for the fairness of the contract.
But for this security, persons whose mental frame is weak, whether rendered so by age or bodily infirmity, would remain exposed in no inconsiderable degree to the danger of being brought to enter into contracts to any degree disadvantageous, by physical force or intimidation.
2. So, again, for the genuineness of the instrument of contract—at any rate as against fabrication in toto. But the chief use of it in this respect is confined to the case where the instrument is not in the handwriting of him who is bound by the obligation constituted by it: the security afforded by that circumstance being of itself so very considerable.
The uses of authentication ab extrà (viz. by attesting witnesses) being to support the contract,—while the witnesses are alive and producible, by direct testimony—when they are dead, or otherwise unproducible, by the circumstantial evidence of their handwriting in these uses may be seen the objects by which the choice of witnesses ought to be guided.
If it be required that witnesses more than one be employed in the character of attesting (i. e. percipient and signing) witnesses,—one of them at least ought to be that sort of person, who, as long as he lives, is likely to be forthcoming, and whose handwriting is likely to be extensively known. And, be he who he may, care should be taken on the face of the instrument to give a description of him, so formed, that, so long as he is in being, there may be no difficulty in finding him out—that, when deceased, his decease may be notorious, or easily ascertainable—and that, for both purposes, the individual may be easily and certainly distinguishable from every other.
These circumstances either concur of themselves, or might easily be made to concur, in the person of a notary: which, in England (where, except in the limited case of the notary-public, no persons but attorneys act in the character of notaries,) is as much to say, in the person of an attorney.*
For reasons already given, it were too much for the law to say, that, by non-attestation by a notary, a contract shall be invalidated; since, in some contracts more especially, cases may happen, in which the assistance of any person in the character of a notary may not be to be had in time, or not without preponderant inconvenience in the shape of delay, vexation, and expense.†
But, what the legislator may very well do, is (at any rate in the case of all contracts that have any intricacy in their nature) to recommend that the assistance of a notary be called in;—directing, moreover, that the absence of such assistance be regarded as a ground of suspicion by the judge.
And what in this same view the legislator may do without difficulty, is, to ordain, and that under a penalty, that wherever a notary is employed in any way in the preparation of an instrument of contract, he shall write his name and description, according to a preappointed form, in some appointed part of it.
By an arrangement thus simple, various and important advantages would be derived:—
1. Here would be an attesting witness, always producible during his lifetime in the character of a deposing witness; his decease always easily ascertainable; his handwriting generally cognizable; his identity easily and certainly determinable.
2. Here would be a person of a responsible condition in life, answerable for any circumstance of improbity apparent on the face of the contract itself, or otherwise known to, or discoverable by him.
3. So likewise for any improbity in his own conduct in relation to the business.
4. So likewise for any injury that might befal either parties or third persons, by reason of unskilfulness or negligence on his part.
Use of a notary for securing the propriety of the contract.
Be the contract what it may, four things are desirable in respect to it:—
1. That no such contract be entered into by any individual by whom in the judgment of the legislator it is not fit that such contract should be entered into, and whom the law has accordingly declared incapable of entering into it.
2. That it be not entered into by any person to whose interests it is to be presumed injurious:—fraud or undue coercion having been employed to engage him to enter into it.
3. That,—lest, to his disappointment, it should prove injurious to his interest,—before he enters into it, he should be sufficiently apprized, not only of the rights which he will acquire by it, but of the several obligations, certain or contingent, to which he will, or eventually may, be subjected by it.
4. That the contract be not of the number of those which are coutrary to law.—i. e. in the opinion of the legislator productive of preponderant mischief to third persons, and, in contemplation of such mischief, the fulfilment of, and consequently the entrance into, a contract to any such effect, prohibited.
Wheresoever the assistance of a notary is called in, it depends upon the legislator to render it subservient to all these desirable purposes.
The operations by which it may be rendered so, may be comprised under three heads, viz.—
1. Reception and attestation of declarations (uninterrogated declarations) made by the party or parties, according to preappointed forms prescribed and provided by the law,—viz. in such cases in which such spontaneous declarations are of themselves, and without the assistance of interrogation, regarded as sufficient.
2. Interrogation of the party or parties, when deemed necessary for the more correct and complete extraction of the facts marked out for the subjects of declaration.
3. Notification of the state and disposition of the law;—viz. of the law by which the several rights and obligations, resulting or liable to result from the contract in question, have been determined.
1. & 2. As between requisition and receipt of uninterrogated declarations on the one hand, and interrogation on the other,—which shall be the species of security employed, will depend upon the nature of the contract, and other circumstances in the case. Either, or both, may be prescribed absolutely; or, declaration, as to certain points being required of course, power, discretionary power, of interrogation, may be given to the notary, without imposing on him the obligation of exercising it.
Interrogation requiring on the part of the proposed interrogator (here, the notary) the union of intelligence and skill with probity, to render it productive of its intended effect, and being never wholly unattended with vexation,—whatsoever can be done without it (i. e. by means of declarations alone) ought therefore to be done: and accordingly, whatsoever security can be afforded by declarations alone, ought to be carried to the utmost length that can be given to it. But, as in all other cases, so in this,—wheresoever mala fides, self-conscious improbity, has place, the utmost security that can be afforded by naked declarations, exempt from the scrutiny of interrogation, will frequently prove insufficient.
Where, for instance, either fraud or undue coercion have been employed by any party, to engage any other to enter into the proposed contract;—so various are the facts which, for detection of the projected iniquity, will require to be brought to light—so incapable of being comprehended by any of those general expressions, to the use of which preappointed forms are necessarily confined, that the necessity of providing powers of interrogation for supplying the deficiency seems to be out of doubt.
But fraud and undue coercion are extraordinary incidents—not having place, perhaps in one out of many hundred instances. Here, then, we see an instance in which, for the prevention of the possible mischief, power for applying the remedy (viz. interrogation) is sufficient, without the obligation of applying it.*
3. For the notification of the state of the law, provision has already been proposed to be made by the proposed requisition of promulqation paper.
But it is one thing to possess a faculty or possible means of doing a thing, and another to have actually exercised it. The state of the law relative to the species of contract in question being (either at large, or in the way of abridgment and reference) presented by the promulgation paper,—i. e. by the species of contract paper applying to the species of contract in question,—there it is for each party to read, if he be at the same time able and willing to go through the task: but an illiterate man will not be able, and an idle or careless man may not be willing, so much as to engage in it.
Shall the notary himself be bound to read over to his client the contents of the margin of the contract paper? or shall it be sufficient for him to receive from the client, among the list of declarations (properly sanctioned declarations,) a declaration of having read it, or heard it read over by an individual (naming him,) as the case may be?
The option proper to be made between the two courses will depend partly upon the importance of the contract, partly upon the quantity of matter to be read. The time of the notary must not be occupied in reading that, or anything else, without his receiving, at the expense of the client, an adequate remuneration for it.
In English practice, it is pretty much in course for the client, in the presence of the notary, to read over, or bear read over, the instrument of contract, before he signs it. To what end receive this information of the contents of it? That he may be assured that no other obligation will on the occasion in question be imposed upon him, than what he is willing to take upon himself.
But, under English jurisprudence, as instruments of contract are penned on the one hand, and as the rule of action in relation to them stands, or rather wavers, on the other,—the obligations which, by reading the instrument of contract, the party is apprized of, are never any more than a part (it is impossible to say what part, frequently the least considerable part) of the obligations which, on his joining in the contract, are imposed upon him.
The proposed contents of the proposed printed margin of the proposed promulgation contract paper, will therefore consist of that sort of matter which there will be no less reason for the party’s reading or having read, than for the reading or hearing the contents of the manuscript in the body of it.
Of the contents of an instrument of contract, as prepared by an English lawyer, by far the greater part is regularly composed of a quantity of excrementitious matter, having for its object and effect, partly the exaction of a correspondently superfluous quantity of the matter of remuneration in the shape of fees—partly the production of uncertainty, with the litigation which is the expected fruit of it—partly the impressing the non-lawyer with the persuasion of his inability to give expression, in a case of this sort, to his own will, without calling in the assistance and submitting himself to the guidance of an adviser, whose interest is thus opposite to his own. If this surplusage—this noxious matter—were left out, a vacancy would be left, such as might in general fall little, if at all, short of being sufficient to contain as large a portion of the text of the law (supposing the law to have a text) as would be sufficient to furnish the parties with the information requisite for their guidance.
Not unfrequently, among the rights and obligations which the parties suppose themselves to have established by their contract, are many, and those to any amount in respect of importance, which, by the disposition of the law in that behalf (law distilled by writers from decisions pronounced by judges,) have been changed or omitted. So far as this plan of treachery has been carried into effect, the text of the contract, instead of affording the information, the true information, which it pretends to afford, produces the deception which is intended.
If the reading or hearing the proposed instrument of contract be deferred till the time appointed for authentication, time sufficient for reflection will, in many instances, not have been allowed: and, in case of any change of intention produced by the information thus conveyed, time, which must be paid for, will have been unnecessarily consumed.
An operation which ought therefore to be considered as part of the duty of the notary, is, the putting into the hands of the client a blank instrument of promulgation paper, according to the nature of the proposed contract: and the acceptance of such blank instrument will serve as a proof of the act of engaging the assistance of the notary, and will fix the point of time from which the service is to be computed.
Then will be the time and the occasion for the notary to point out to his client the declarations which it is incumbent on him to make, and the interrogations, if any, to which it is, or may be, incumbent on him to make answer.
Here, then, will be no surprise, no hurry, no dearly-paid time unnecessarily consumed.
For illustration, the following may be mentioned as so many instances of contracts which, while by their importance they will compensate for the time and labour necessary to produce the most effectual notification, so by the nature of them they will, previously to final agreement, admit, without inconvenience, of an interval of reflection sufficient to the purpose:—
1. Instruments expressive of the rights and obligations established by the marriage-contract.
2. Instruments expressive of the contract constitutive of the correspondent relations of master and apprentice.
3. Instruments serving for the appointment of an individual to act as guardian to a given minor, who is thereby constituted his or her ward.
4. Instruments expressive of the contract constitutive of the relation of master and servant—hired servant.
N.B. Instruments with marginal laws of different tenor will here be requisite, according to the different lines of service: domestic service, under its various modifications; service in husbandry, in navigation, mining, &c. &c.
5. Instruments expressive of the contract constitutive of the relation between landlord and tenant.
Here also instruments with marginal laws of different tenor will be required, corresponding to the different modifications of which the subject-matter and the quantity of interest in it are susceptible; according as it consists of land without buildings, buildings without land, buildings used for habitation, buildings used not for habitation, but for other purposes; the whole of a dwelling-house, or only an apartment in the house, and so forth.
The object to be aimed at in the distribution is this,—viz. that no person shall, either in the shape of expense or in the shape of labour of mind, be charged with any portion of the matter of law, other than what, for the guidance either of his conduct or his expectations, he is concerned in point of interest to be acquainted with: for example, that, though both come under the general denomination of tenants, the occupiers of a weekly lodging in a house situated in a town, shall not be obliged either to buy, read, or hear read, a string of regulations which apply to the occupier of an agricultural establishment.
The cases themselves are not to such a degree distinct as to render it possible in every case to exonerate each individual from every particle of legislative matter that does not apply to his case. The only use of the principle, nor is it an inconsiderable one, is, that the separation, so far as the nature of the law and the circumstances of the individual case admit of it, shall be made.*
Honorary notaries proposed.
Some persons there will always be, who, to purposes such as the above, having occasion for the assistance of a notary, will be unable to pay the price for it. Some persons:—and, in England for example, in this predicament stand the labouring classes in general; in a word, the great majority of the people.
To almost any person in such parts of the country as have no considerable town in their near vicinity, it may on various occasions happen to have need to enter into a contract, especially to make a disposition of his property by his last will, and for this purpose to have recourse to the assistance of a notary, at a time when no such assistance is within reach.
But a neighbourhood, many a neighbourhood, which does not afford a professional notary (i. e. in England, an attorney,) or does not afford a notary who at the moment of exigence is within reach, may afford a person or persons whose education and habits of life would enable him (at least in respect of such contracts as are not embarrassed with any considerable degree of complication) to discharge the functions of a notary, if furnished with proper instructions by the legislator, in a manner no less effectual than if engaged by profession in that line of service.
Britain is fortunate enough to possess more descriptions of men than one, of whom, on an occasion of either of the above descriptions, service of this nature, if placed on a suitable footing, might, on the ground of experience, be expected: justices of the peace, for example, and ministers of religion;* to whom to some purpose might perhaps be added schoolmasters.
To accept of a pecuniary recompense would in the two first instances be to enter upon a profession which would not be generally regarded as being with propriety capable of being added to their own: and, where it is by the indigence of the client that the need of recourse to the assistance of the patron is produced, the acceptance of such recompense would be repugnant to the end in view. In the adjunct honorary, the exclusion of such recompense would be implied.
In the case of the indigent client, the fee, whatsoever it might be, that might be deemed suitable to the service, if rendered by the professional notary, would, by the honorary notary, not be received.
In the case of the client driven to request the assistance of the honorary notary, by the inability of obtaining within the necessary time the assistance of the professional notary,—the considerations of delicacy which would prevent the honorary notary from receiving the fee to his own use, would not prevent him from receiving it to the use of some charity, such as the poor of the parish, or to the use of some professional notary of his own choice.
Of a general and habitual readiness to render such service upon such terms, there seems not in either instance any room for doubt.
In the case of judicature, by far the greatest part of the business of this nature that the country affords is done by unfee’d judges. Applied to this branch of legal service, there seems no reason to apprehend that the same principle should be less efficacious than it is seen to be in its application to the other.
The abode of the patron will of course be the spot to which, as in the case of the judicial business above alluded to, whoever has need of the service will repair for the purpose of requesting it. Under these circumstances, the service rendered, the obligation conferred, will be considerable; the labour of rendering it will not be great.
As to the readiness and frequency with which service of this nature will be rendered, several circumstances may be mentioned, on the joint influence of which it will depend.
1. Upon the simplicity and clearness of the instructions given by the legislator, as proposed, on the margin of the proposed authoritative contract paper.
2. Upon the comparative lightness of the burthen attached in the shape of responsibility to assistance thus bestowed. In the case of the man of charity, whose service is bestowed without anything that is generally understood under the name of recompense, the responsibility cannot be in every point as strict as in the case of him who serves for recompense. The principle, alike recommended by justice and policy, has nothing new in it. It has received its application in the instance of the office of justice of the peace. As to schoolmasters, those of the lower order have every now and then been known to be employed, among the lower classes of clients, in the character of notaries, principally for the purpose of making wills.
With sarcastic exultation, professional lawyers have been heard to speak of men of this description as belonging to the number of their friends—more useful to them by the lawsuits thrown by these usurpers into the hands of the regular practitioners, than hurtful by the notarial business taken out of the same learned hands.
The exultation may perhaps have not been ill-grounded: but it may be accused as carrying ingratitude in its company, if due remembrance be not had of the governing members of the partnership, from whose providence the rule of action has received that well elaborated form by which it has been rendered incapable of being learnt by those whose province it is to teach others.
[* ]A regulation applicable to many useful purposes is this,—viz. that on every instrument of contract, the name, together with a sufficient description, of the writer,—the very individual by whose hand the characters are traced—be expressed.
[* ]It is in the character and by the description of notaries, that attorneys should on these occasions be spoken of. It is not in the character of attorneys, assistants in litigation, that their assistance is on these occasions required: on the contrary, to save the parties from the misfortune of being eventually obliged to have recourse to a man in the character of an attorney, is the very use and purpose of calling in his assistance in the character of a notary.
[† ]By way of an example of a sort of contract to which such professional intervention could not without great inconvenience be required, I will give the common bill of exchange, inland as well as foreign, in use among commercial hands. The delay and vexation of which an obligatory regulation to any such effect could not but be productive (not to speak of expense,) constitutes an objection so obvious and so peremptory, that the barest hint of it may suffice.
[* ]Take for instance the case of marriage. Prior marriage undissolved,—relationship too near,—age absolutely immature,—age immature for want of consent of guardians:—of all these four causes of incapacity to the contract, the non-existence may perhaps be sufficiently established by appositely worded and sufficiently sanctioned declarations. But in the case of three others—viz. undue coercion, fraud, and insanity—the insufficiency of declarations is obvious. Of any of these causes of incapacitation, should any suspicion in this or that individual instance arise, it is only by particular interrogatories adapted to the circumstances of the individual case, that such suspicion will be capable of being confirmed or done away.
[* ]The principle of distribution here proposed, in which regulation and notification are virtually included, is but an application of the more comprehensive principle,—viz. that all judicature should have previous regulation for its basis, and that regulation effectually notified: in other words, that regulation and notification should everywhere precede judicature: that no man should, on the score of punishment, or on any other score, be made to suffer for not having conformed to a regulation or rule of law, real or imaginary, of the existence of which, supposing it to exist, no means of informing himself had ever been presented to his notice.
[* ]In Scotland, a parochial clergyman may act as a notary in executing a will.—Ed.