Front Page Titles (by Subject) CHAPTER X.: OF THE REGISTRATION OF GENEALOGICAL FACTS, VIZ. DEATHS, BIRTHS, AND MARRIAGES. - The Works of Jeremy Bentham, vol. 6
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CHAPTER X.: OF THE REGISTRATION OF GENEALOGICAL FACTS, VIZ. DEATHS, BIRTHS, AND MARRIAGES. - 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 THE REGISTRATION OF GENEALOGICAL FACTS, VIZ. DEATHS, BIRTHS, AND MARRIAGES.
Uses of registration, as applied to genealogical facts.
Taken together, these three intimately-connected species of legally-operative events have already been characterized by the appellation of genealogical events. Taken together, the uses derivable from the registration of this class of legally-operative events, make a distinguishing figure when viewed in comparison with legally-operative events at large. Taken separately, the uses of each in some points coincide with, but in others are prominently distinct from, the uses of the other two.
I. Uses of registration as applied to deaths.
(1.) Uses having relation to the non penal (called civil) branch of law; and for which evidence of the naked fact suffices:—
1. To afford evidence of title by succession, in favour of natural or specially-appointed representatives.
2. To afford evidence of cessation of title, in the case of persons entitled to money or money’s-worth during the life of the deceased.
3. The deceased being under the tie of a matrimonial contract,—to afford evidence of the dissolution of such contract, in behalf of the surviving spouse.
4. The deceased leaving children under age,—to afford in their favour evidence of title to the services of some one in quality of guardian.
5. The deceased leaving a widow or descendants destitute of the means of subsistence,—to afford in their favour evidence of title to relief, at the charge of this or that individual, or of any public fund.
6. In any instance in which the testimony of the deceased would have been exigible, but on condition of its being delivered in the best shape,—to afford to the party who stands in need of it, the opportunity, if allowed by law, of producing it in any inferior shape in which it happens to be obtainable; such as hearsay, extrajudicially and casually-written, &c.
(2.) Uses having relation to the penal branch of law; and for which information concerning causes and circumstances is necessary.
These uses consist in the discovering or detecting, and, by fear of discovery and consequent punishment, preventing, death, in so far as it is liable to have for its cause human delinquency, whether malâ fide (i. e. accompanied with criminative consciousness,) or simply culpable, as being the result of temerity or negligence. Instance, among others, the case where a person not dead is interred on the supposition of his being dead.
The facts or circumstances necessary or proper to be taken for the subjects of registration will vary, according to the nature of the uses, as above distinguished, considered in the character of objects or ends to be aimed at.
Are the civil objects the only ones thought fit to be provided for? The fact of the extinction of life, and the sufficient description of the person, the identity of the deceased, may be the sole objects of attestation, and subjects of registration.
If the prevention or detection of delinquency in this line be also worth providing for, many other circumstances will be to be comprised in the inquiry, and in the declarations made in consequence.
1. Supposed manner of the death, whether gradual or sudden.
2. Supposed cause,—natural decay, or any external application, violent or otherwise: and in either case, whether human agency appeared to be in any way concerned in it.
3. The body, where, and how, and by whom, found.
4. Medical assistant, whether any, and who, called in; and if not, why not.*
II. Uses of registration as applied to births.
1. To ascertain and put out of dispute the fact of legitimacy or illegitimacy.
2. In either case, to establish, in favour of the child, title to maintenance at the charge of the proper person or persons.
3. In case of legitimacy, to establish, in favour of the child, its eventual title by succession to property left vacant by the death of its parents and other natural relatives.
4. In the meantime, to establish its title to the rights, and subject it to the obligations, attached to the condition in life into which it is introduced by its birth.
5. To establish the point of time at which it will have arrived at full age.
6. In the meantime, to establish its right to the services of the proper person in the character of guardian, and its correspondent obligation of submitting to the authority of that same person in that same character.
7. To prevent the wrongs that have sometimes been done to third persons by usurpation of sex. Example, the case of a female taking or giving possession of property intended by legal disposition to be confined to males.
8. In case of illegitimacy on the part of the child,—to prevent the wrong that would be done to legitimate children born of the same parents, or either of them, or to other more distant relatives, by an usurped participation of their rights.
9. By indication of its genealogy, to establish its incapacity of marrying within the prohibited degrees.
Measures subservient to the uses derivable from registration in the case of births:—
In ordinary cases—
1. Presentation of the infant to some public officer, by or on the part of the mother, within a certain time after the birth. Penalty, in case of omission. Ex. gr. as, in England, among members of the established church, presentation of the child by the sponsors to the minister, for the purpose of baptism.
2. Account thereupon given of the parents.
3. Mention and description thereupon of the midwife or midwifes, male included. If no professional midwife, mention accordingly: mention of any other person or persons assisting or present at the birth, or that there was no such assistant.
4. Register book to be kept by every professional midwife, according to a preappointed form: form for description of the parents included. Penalty on every person acting for hire without a licence.
In extraordinary cases—
1. Case of foundlings. Indication of some public officer, by whom the infant shall be taken care of, that maintenance may be afforded to it at the expense of some public fund, unless and until discovery shall have been made of some individual on whom the obligation have been imposed by law. Ex. gr. in English law, an overseer of the poor, by whom the infant is to be provided for at the expense of the parish.
2. Case of bastards born out of marriage. Provision for the examination of the mother, before or after the delivery, for the discovery of the putative father, to the end that the obligation of maintenance may be imposed on him according to law; or, in case of his inability, as well as that of the mother, on some subsidiary fund.
3. Case of bastards begotten in adultery. Provision for the examination of the mother, before the delivery, for the discovery of the putative father (as above,) in cases where the impossibility that the infant should have had the husband for its father is notorious; for example, by absence or impotence. In case of doubt, provision for establishing the fact by other evidence.
III. Uses of registration as applied to marriages.
1. In favour of each spouse, to establish his or her rights at the charge of the other: the husband’s title to authority over the wife; the wife’s title to charge the husband with debts contracted by her for her subsistence, and so forth.
2. In favour of the wife, to establish her title to the condition in life in which she is placed by her alliance with the husband.
3. In case of adultery on the part of either of them,—to establish the fact of marriage, for the purpose of any satisfaction which the law may have thought fit to afford to the other, and of any punishment which it may have thought fit to inflict upon the transgressing parties or either of them.
4. In case of misbehaviour in any other shape on the part of either to the prejudice of the other,—to establish, in favour of the party wronged, his or her title to whatever satisfaction may have been ordained by law, according to the nature of the case.
5. In case of a second marraige contracted or meditated on the part of either spouse, before any legal dissolution of the existing contract,—to contribute to establish, in favour of any party injured by such second marriage, his or her title to satisfaction for the injury; and likewise the obligation of the delinquent to undergo any punishment that may in that case have been provided by law.
6. At the death of either spouse, to establish, in favour of the survivor, his or her title, by succession or testament, to whatsoever portion of the property of the deceased may have been destined for him or her by law or legalized contract.
7. To establish, in favour and at the charge of children born under the marriage, their respective titles to the condition in life correspondent to that of the parents, together with such other rights and obligations as are above brought to view in the case of births.
8. In favour of third persons,—to prevent their being subjected to loss by purchase of immoveable or other property unalienably secured, by the marriage-contract, to either spouse, or to the issue of the marriage.
9. In a word,—in favour of third persons, to prevent their being subjected to loss in consequence of contracts entered into by either, on the supposition of his or her being single, or wedded to another.*
IV. Statistic uses derivable by the legislator from the conjunct registration of deaths, births, and marriages.
In general, the collateral uses, derivable in this shape from the registration of these genealogical events, are pretty well understood. In English practice, in particular, the discovery and publication of political facts finds men much less averse to it, than to the making a proper and consistent use of them. Many agree in making the ground, who would not agree about the superstructure.
In the account-books of the legislator, the number of the people is entered on both sides: on the side of profit, and on the side of loss: on the plus side, by the resources it affords; on the minus side, by the resources it stands in need of: on the side of profit, by what it produces and supplies; on the side of loss, by what it consumes. It produces food, and it produces mouths that are to be fed: it produces men for defenders, and women and children that require to be defended: it produces arms and men that ward off the depredator, and it produces the precious matter that invites him.
The quantities ascertained,—by comparisons made of them, various other indications, pregnant with inferences and regulations, are obtained.
1. By comparison of deaths with births, due allowance being at the same time made for immigration and emigration, the healthiness of each spot, as compared with every other at any given period, and as compared with itself at different periods, is ascertained.
2. Hence, in case of measures taken by the legislator for the increase of salubrity, the degree of success (if any) with which they are attended, may become discernible.
3. Hence, the individual whose situation admits of choice, and in whose eyes health and longevity obtain the preference to rival blessings, sees how and where to choose.
4. Here, too, the forecast of individuals finds a basis for its calculations, and the transactions grounded on them. Provision for a man’s self during his life, or for persons dear to him, to take place after his death, is thus secured against uncertainty and disappointment.
But, unless due allowance be made for the difference in point of longevity between different modes of life, severe deception and disappointment will be apt to ensue.
Aberrations of English law in regard to the registration of genealogical facts.
In most civilized states, and in England among the rest, religious policy has interposed; and, in the pursuit of its own objects, has, as well in respect of correctness as of completeness, deteriorated the whole mass of genealogical preappointed evidence.
In the instance of each species of genealogical event, it has substituted to the fact or event intrinsically material, a fact extraneous to it, and, though most commonly, yet not in its nature necessarily, nor in practice invariably, connected with it.
1. To registration of the fact of death, it has substituted registration of the ceremony of interment, and that only in the case where accompanied with certain formalities; one of which is, the presence and operation of an ecclesiastical functionary of a certain order: so that, if the body is disposed of in any other manner, or by a priest of another order, or without the assistance of a priest, no registration is to take place.
2. To registration of birth, it has substituted registration of baptism:† a ceremony which consists in the sprinkling the new-born child with water; on the occasion of which operation, certain words are to be pronounced, viz. in the form of a dialogue, in which one of the interlocutors must have been a priest, of the same order, as above: so that, if the child remains unsprinkled, or the sprinkling be performed without the accompaniment of the recently invented dialogue, or with the intervention of a priest of a different order, or without the intervention of any priest, no registration is to take place.
3. To registration of an instrument of marriage-contract, or of the fact of its having been executed, it has substituted the registration of the performance of a certain ceremony; on the occasion of which ceremony, certain other words are to be pronounced, viz. in the form of a dialogue, in which one of the interlocutors must again have been a priest, of the same order, as above: so that, if the ceremony be performed without the accompaniment of this recently-invented dialogue, or with the intervention of a priest of a wrong order, or without the intervention of any priest, no registration is to take place; or, if any registration happens anywhere to be made of the transaction, no care is taken on the part of government to preserve it, or put it to use.
On this occasion, had it happened to these all-powerful functionaries to join in taking for their object or end in view the welfare and good behaviour of the parties to this contract, care would have been taken (as already intimated) that, on the occasion and by means of this ceremony, a correct and complete conception, and (without which it can neither be correct nor complete) a particular conception, should be formed by the parties to this most important of all contracts, of the obligations with which they are respectively about to charge themselves, and of the rights which they are about to acquire. But to the priest, whose interest centres in the obtaining of worship with the fruits of it for himself, and to whom the temporal welfare of ever-sinning mortals is an object beneath, oftentimes even avowedly beneath, his care, their good behaviour in respect of the contract is at best a matter of indifference; while to the lawyer, whose prosperity rises with the unhappiness and misconduct of mankind, it is matter of advantage, that obligations and rights of this class, as of every other, should float in perpetual uncertainty; and that, in this as in every other part of the field of action, the rule of action should remain for ever as completely unknown, and as incapable of being known, as possible. An awe-inspiring formulary—composed of vague generalities and historical allusions, and (by the careful exclusion of all specific delineation of rights and obligations) rendered as barren of useful and applicable instruction as possible—was therefore unexceptionably conformable to both their interests: and hence, on this as on so many other occasions, on the spurious and usual pretence of warming and guiding the heart, a composition is framed and employed from which the head can derive no use.
It is on pretence of fulfilling the will of Christ Jesus, that the mode of recording this most important modification of preappointed evidence has been rendered to so great an extent inapplicable to the purposes to which it has been, or ought to have been, directed; and in not so much as one of the cases is Christ Jesus so much as pretended to have ever said anything about the matter.
Religion is thus planted and kept on foot by force, under the notion of its indispensable necessity to the well-being of the present life: yet, when opportunity presents itself for rendering it so, the opportunity is, with an uniformity too constant not to be the work of design, suffered to slip by unimproved.
Under the old French law, matters were so arranged, that, with or without the assistance of the mother, it depended on any person or persons having possession of a new-born child, if not absolutely to give to it what parentage they thought fit, at any rate to render its real parentage absolutely unascertainable. The nurse (so for strictness be it said,) in producing the child to the officiating functionary, the parish priest, spoke of it as having such and such persons for its parents: no oath administered, no interrogation proposed, no means provided for subjecting the deponent to eventual punishment in case of falsity: on this naked assertion, was the fact entered upon the register as certain. To prove the falsity of a declaration of this sort, no evidence whatever, not the testimony of any number of witnesses, testifying upon oath, and upon interrogation administered in the ordinary mode, was admitted.* Hearsay evidence was thus not only admitted, but admitted to the exclusion of original evidence.
The fraud thus practiceable had its good effects as well as its bad ones. In the case of a child born in adultery, in circumstances which rendered it notoriously impossible that the husband should have been the father, the reputation of the mother, the peace and honour of the family, was saved from blemish: and so in the case of a birth without marriage.
Upon the whole, was it eligible or not eligible, that transgressions of this sort should be concealed? If eligible, the purpose might have as effectually been provided for without, as by, the falsity. In this case, the proper subject for registration would have been the fact that a declaration to such an effect was made—made by individuals styling themselves so and so; not the inference, which, as above, was surreptitiously substituted to it.
Among the advantages resulting from the substitution of the plan of honest reserve to that of connivance at fraud, would have been the information of a statistic nature which in that case it would have been in the power of the legislator to derive. The cases of concealed parentage being on this plan distinguished from the ordinary class of cases, the proportion between the one and the other at different periods would thus have been open to observation.
[* ]Over and above making provision for the extraction and recordation of answers to questions such as the above, regulations to the following effect present themselves as conducive to the end in view:—
[* ]Securing the legality of the marriage is a collateral end, that might easily be attained by appropriate arrangements, whereof interrogation would be the principal instrument. But we are now considering, not what formalities ought to be observed on the occasion of entering into the contract, but what are the advantages derivable from the registration of it when concluded.
[† ]The statute above noticed (6 & 7 W. IV. c. 86) appoints the births, and deaths, as the facts for registration.—Ed.
[* ]Causes Célèbres.
[* ]Over and above making provision for the extraction and recordation of answers to questions such as the above, regulations to the following effect present themselves as conducive to the end in view:—
[a]By the act above noticed (6 & 7 W. IV. c. 86) there is a penalty, not exceeding £10, exigible from any one who buries, or performs funeral service over a dead body, without a certificate of registry, unless he give information to the registrar within seven days (§ 27.)—Ed.