Front Page Titles (by Subject) OUTLINE OF A PLAN OF A GENERAL REGISTER OF REAL PROPERTY: CONTAINED IN A Communication to the Commissioners appointed under Letters Patent, of date the 6 th June 1828, to inquire into the Law of England respecting Real Property, and first printed i - The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions)
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OUTLINE OF A PLAN OF A GENERAL REGISTER OF REAL PROPERTY: CONTAINED IN A Communication to the Commissioners appointed under Letters Patent, of date the 6 th June 1828, to inquire into the Law of England respecting Real Property, and first printed i - Jeremy Bentham, The Works of Jeremy Bentham, vol. 5 (Scotch Reform, Real Property, Codification Petitions) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 5.
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OUTLINE OF A PLAN OF A GENERAL REGISTER OF REAL PROPERTY:
Gentlemen,—1. By your circular, dated the 6th and 8th of August 1829, and addressed to various persons, of whom 1 then was, and now continue to be, one, you were pleased to call for suggestions on the subject of registration, as applied to men’s titles to the subject-matters of the sort of property termed in English law real property. The present paper is written and presented to you in obedience to that call.
2. By your letter of the 18th of August 1829, addressed to myself alone, in answer to mine to you of the 15th of that same month, you were pleased to honour me with an assurance in these words: “They” (meaning you the said commissioners) “have no hesitation in saying, that they should think it their duty to include whatever may proceed from him” (meaning myself) “in any appendix to the report which they may hereafter make to his Majesty.” On this assurance the present communication places its reliance.
3. The observations here submitted have for their immediate, appropriate, and by you expressly authorized subject-matter, the plan proposed for the institution in question by yourselves. But, by this as by any other proposal which is transmitted to any person for examination, reference, if not expressed at any rate implied, is made, or authorized to be made, to some determinate set of notions considered as constituting a standard of propriety,—in a word, to some principle or set of principles. I shall therefore, in so far as my own conception of my competence extends, take the preliminary liberty of submitting to you the leading features of the sort of plan which, to myself, presents itself as most eligible, prefaced by a short exposition of the principles from which they emanated, and to which they look for their support.
4. Superior utility and novelty. In these I behold two qualities, the union of which is indispensably necessary to constitute a sufficient warrant for any such communication as that in question. Yes, novelty: for in the idea of absence of novelty is included absence of usefulness, presence of uselessness. So far is novelty, when taken by itself, and not alleged to have inaptitude for its accompaniment—so far, I say, is it from constituting any reasonable ground of objection to a plan for this or any other purpose.
5. If this be true, what shall we say—what shall we think—of those by whom, without controverting the utility of a proposed plan, be it what it may, the alleged novelty is held up to view in the character of a ground for the rejection of it—of those, in a word, by whom the word innovation is employed as a token of disapprobation and an instrument of censure?
6. As to my own competence, I consider it, and accordingly speak of it, as having certain defined and precise limits, and on the outside of those limits lies all information as to all such matters of fact the knowledge of which is not capable of being possessed by an individual not actually engaged in the practice of the profession, which has for the subject-matter of its exercise the subject-matter of the commission in virtue of which you have been pleased to make this call upon me; whatsoever, therefore, I shall venture to propose, you will understand as calling upon you for amendment, as far as requisite; amendment, in every one of its three shapes—subtraction, addition, and substitution.
7. On this occasion, the part which I take in the business will be seen to confine itself to the giving a comparatively small number of suggestions, by the adoption of which, if, and in so far as, my view of the matter is correct, it would be put into a new, and that the most appropriate conceivable form.
8. In and by various parts of my publications, I stand pledged to the public never to propose or advocate—never to oppose and combat—any law or institution actually established, or proposed to be established, without attaching to it an accompaniment, composed of reasons; meaning by reasons, considerations having for their object the showing in what manner, immediately, or through the medium of a chain of any length, of causes and effects, the arrangement proposed presents itself as likely to give a net increase to the happiness of the person or persons in question; that is to say, to the balance on the side of pleasure, after deduction made of the quantity of pain experienced during the period in question. As on all other occasions, so on this, by this engagement I regard myself as bound.
9. In one of those same publications, in particular, the subject-matter of consideration comprehends the entire aggregate of all the several sorts of functionaries of which the official establishment of any country is, or in the nature of things can be, composed; those here in question are consequently comprised; and throughout that work may be seen a specimen of the above-mentioned accompaniment, namely, in the instance of every article which has for a heading the word ratiocinative. The work I am alluding to is that which has for its title “Constitutional Code; for the use of all Nations and all Governments professing Liberal Opinions.”
10. So much as to my plan. Now, gentlemen, as to yours, considered in like manner with reference to reasons. Your plan is before the public; with all due deference, what I have to propose is a somewhat different one. Your reports on the subject lie before me. I look in them for reasons: I find in them no such thing. A bill, moved for in pursuance of those same reports, has been before the public. I look in it for reasons: neither in that same proposed law do I find any such thing. As in the one instrument, so in the other, stat pro ratione voluntas. As for me,—my will not having any chance for the being clothed and armed with legal power,—the power of reason, if I can find any on my side, is my sole resource: stat pro voluntate ratio.
11. Is it even unprecedented, this same accompaniment? Look to Westminster Hall. In Westminster Hall, when in a judicatory, a judge, and in particular a Chief-Justice, bears his part in the making of the sort of decision called a judgment, and, for a ground of that same judgment, delivers his opinion; in this case, if the importance of the matter presents itself to him as calling for any further support, he fails not to deliver his reasons.
12. Again. When, from the judgment of one judicatory, a party makes his appeal to another judicatory; in this case, also, a man submits to the superior authority in question his reasons.
13. Now then, gentlemen,—in your quality of learned gentlemen, let me ask you—if in the business of judicature a support of this kind is needful, how much stronger is not the need of it that has place in the business of legislation?—that business, to the importance of which, the extent of the consequences considered, the importance of the business of judicature is but as number one to infinity.
14. Not altogether insensible to this demand has the Legislature of this country been even in its hitherto corrupted state. At the commencement of a statute, something in the guise of reason has been customarily and regularly served out. Served out! Yes; but of what sort? Of a sort such as a Bridoison in the drama of Figaro, or the Old Woman in the history of Little Red-Riding-hood, or a legislator in the land of Gotham, might have been proud of.
15. “Whereas it is expedient”—With these four words commences the train of surplusage, of which, under Matchless Constitution, the greatest part of an act of Parliament is so regularly composed: of these words is composed the whole of that portion of matter in which the draughtsman places his trust, in the character of a justification for the exercise made by him of that authority of which he is the organ, when laying about him and scattering broad-cast the seeds of good and evil, with so little expense in the shape of thought.
16. Now then as to the particular bill above alluded to. In that same bill, on looking into it for reasons, though I cannot find any such thing, yet what I do find is the just-named something which seems intended to serve instead of reasons. It is composed of those same four words—“Whereas it is expedient:” it is that same Vox et præterea nihil. I speak thus freely; because, if in that same dictum there be anything of fatuity, or if you please, of silliness (and in my view of the matter, that there is, in abundance,) you, gentlemen, are not, any of you, chargeable with it. How little soever in accordance with reason, this phrase, it cannot be denied, is most perfectly in accordance with precedent: without it, this or that high functionary, whose name, official and personal, sooner or later shall and will be made publicly known,—inasmuch as his remuneration has been made to rise, in proportion as the rule of action has, by its immensity, and obscurity, and richness in surplusage, been made to increase in inaptitude for its professed purpose,—this self-authorized and self-paid comptroller of the authority of the King in Parliament, this secret imposer of taxes for his own benefit, might find the bill incomplete, and as such find himself obliged to throw it overboard.
17. Houses, honourable and right honourable, have each of them its standing orders. They have in common this one standing reason. It is as good for one thing as another: for one proposed enactment as for another. In this its aptitude, however, there is nothing of peculiarity: nothing but what might be shared with it by any other four words, drawn, in the way of lottery, out of a dictionary.
18. Such is the sort of embellishment belonging to a bill—meaning a future contingent statute. Of a piece with it—in exact keeping with it—are, in a speech, the two locutions—“contrary to every principle of justice,” and “contrary to the first principles of justice,” bearing upon the face of them the marks of the above-mentioned country of Gotham, as the country from which these commodities were, all of them, imported.
19. But, of this last-mentioned embellishment, the ground to which it is suited, and on which it is commonly embroidered, being, not a bill, but a speech, I find not any exemplification in the authoritative article of piece-goods I have been speaking of. Only, therefore, for elucidation,—or, if you please, for illustration,—not for justification, is the mention made which I have ventured thus to make of it.
20. Happily, a new order of things is at length born. Nonsense will not, for ever, sit on the throne of common sense.
21.Reasons, principles, ends, means, rules, maxims, axioms, positions, propositions. On the present occasion, had I to do that which, on some future occasion I may not impossibly have to do,—namely, in my address to you, to take for the subject-matter of it the whole of the field of real property,—in that case, in the character of principles, I might have to submit to your consideration no fewer than seven-and-twenty words, or sets of words, which, in the form of a tree, composed of a trunk with branches and sub-branches, called by logicians in former days the arbor porphyrum, lie at this moment before my view; and with them would come the whole cortége (as the French say) of the genera generalissima above-mentioned: for, wheresoever I tread, my wish and endeavour is to find, and if I do not find to make, my foundation sure. Happily for us all, on the present occasion, not more than two of these principles will it be necessary for me to trouble you with; with the addition of a small quantity of matter, under the head of reasons and that of ends and means: and a few preparatory propositions, which present themselves to my view, as being relevant, conclusive, and incontestable.
22. These principles are—1. The greatest happiness principle, or say, the happiness-maximizing principle; and, 2. The disappointment-minimizing, or say disappointment-preventing, or say non-disappointment-principle. Yes, verily, the disappointment-minimizing principle. Nay, good gentlemen, do not be horrified by it; for here, not only on sure ground do I tread, but, as you will see, on authoritative ground; on ground, which you will find yourselves estopped from denying to be authoritative.
23. As to my reasons, what I cannot but apprehend is, that by the mention thus and here made of them, may be called to the minds of some of you the image of the old steward in Addison’s drama of the Haunted House, who, after speaking of reasons and of many reasons, goes on to say, “at present I shall mention only seven:” but for this I must take my chance.
24. Now for my authority. Truly gratifying it is to me on this occasion, to find in accordance with this notion of mine about disappointment, the opinion, as proved by the practice, of a distinguished member of your own body. It preserves, in the completest manner, from the reproach cast by the word theoretical, this same disappointment-minimizing principle.
25. In the so admirably instructive and useful work of Mr. Tyrrell, intituled “Suggestions sent to the Commissioners appointed to inquire into the Laws of Real Property,” I have the satisfaction of seeing this same principle three several times referred to as the ground of the arrangements which he recommends.
I. In page 121—“The expense, uncertainty, and disappointment, which usually attend suits for long-forgotten claims, render them,” says he, “a source of more injury than benefit to the church.”
26. II. In page 239—“Tithes, under a descent,” says he, “can never be considered secure, until the right of the devisee has been barred; and a few cases of hardship to disappointed devisees are not,” continues he, “of so much importance as the advantage—the safe alienation of property.” Thus far Mr. Tyrrell.
27. And if such is the inferiority of the importance of these few cases of hardship to disappointed devisees, whence comes this same inferiority?—whence comes it (I ask) but from this, namely, that, in the cases in which by the result the alienation has been shown to be unsafe, disappointment has been produced by that same result, and that these cases having been more numerous than those others, the sum of the pain that has thereby been produced in these last-mentioned cases, is greater than that which has been produced in the first-mentioned cases?
28. III. Lastly, in page 312—speaking of of the wording of a certain devise (the particulars of which are not material to this purpose,) he gives as the reason of the construction (or, as a non-lawyer might say, the interpretation,) he recommends, this—namely, that “if no gift had been made to the owner of the property, the person to whom it was devised must” (he says) “have been disappointed;” meaning evidently that, on the supposition, that, if in the sort of case in question, the disposition made of the property in question by the judge, is that which he (Mr. Tyrrell) recommends,—on that supposition in the breast of the party in whose disfavour that same disposition operated either no such pain at all would be produced, or if any (pecuniary circumstances being supposed to be on both sides equal,) the pain would not be so great as in the contrary case.
29. I come now to speak of ends and means: ends, the attainment of which ought to be kept in view and aimed at, on the occasion of whatever arrangements come to be taken for the establishment of the proposed institution, and are accordingly aimed at, in the suggestions which here follow. These ends are distinguishable into two—namely, the primary and the secondary.
30. First, as to the primary end. The evil, against which a remedy is hereby endeavoured to be applied, consists in the unexpected loss of money or money’s worth: the primary end aimed at is—the prevention of this loss.
31. Then, as to the secondary end. On the occasion, and for the purpose, of the application of this remedy, a certain series of operations, or (as among lawyers the phrase is) a certain course of procedure is necessary: on which occasion, evil to a greater or less amount in the several shapes of delay, expense, and vexation, cannot but have place. In the remedy we behold a benefit; in this last-mentioned evil we behold a burthen, attached to that same benefit; and what remains, after subtraction of the amount of the burthen, will be the amount, or say clear value, of the benefit; and the institution having for its primary end the conferring on the individuals interested that same benefit; the minimization of this same burthen is that which it has for its secondary end.
32. Just so is it in the case where, instead of a register-office, the scene lies in a court of justice; the benefit sought is a remedy against wrong; and this is what that institution has for its primary end; the attached burthen consists here also of evil in these same several shapes of delay, expense, and vexation: and the minimization of the evil, in these its several shapes, has been considered and spoken of as that which the institution of a court of justice, with its course of procedure, has for its secondary end.
33. On examination made into the manner in which these two ends—the primary and the secondary—may most effectually be attained, namely, by the maximization of aptitude on the part of the matériel as well as the personnel (to borrow a phrase from the war department)—that is to say, the building or buildings, and its or their official inhabitants,—together with the minimization of the expense—my eyes have fixed upon seven distinguishable objects in the character of means, each of them, for the attainment of one or both of these two ends; and, within the field of each of these seven objects, means of a more particular nature, which, with reference to them, may be styled means of effectuation; and which I shall accordingly designate by such their proper name.
34.Objects and means of effectuation taken together, thinking that to this or that one of you, gentlemen, it may perhaps be matter of convenience to have them upon occasion visible, all of them, at one and the same glance, I have given expression to the tout ensemble of them on the same side of a leaf of paper, in and by a table, which will almost immediately present itself to your view.
35. Of the evil, the prevention of which constitutes the primary end, five different modifications may be distinguished, each liable to fall on a correspondent description or class of persons: the diversity in the description of these same modifications of the evil will be seen to have for its cause a correspondent diversity in the relative situations of the classes of persons who stand opposed to it.
36. In all five cases, the loss, with the suffering consequent upon it, has for its efficient cause the badness of the title to the subject-matter of property in question. In some one of these same cases, the suffering has for its immediate cause the actual loss of an immovable subject-matter of property or some interest therein; in others, loss in the shape of money; in others, again, that which the suffering has for its immediate cause, is that which may with more propriety be considered as non-acquisition of profit or say benefit, than positive loss or say burthen.
37. Here, then, in the aggregate, are so many cases of suffering, which, when regarded separately, may be thus described:
I. Case the first.—Sufferer, a person who is in possession or in fixt expectancy of a subject-matter of real property, or of an interest therein, the title to which, for want of some piece of evidence, some saving knowledge, which a registration office would have taken charge of and rendered accessible to all persons interested, turns out to be bad.
38. II. Case the second.—Sufferer, a person who, having paid money for the purchase of a subject-matter of real property, or of an interest therein, fails of receiving it; he who, in return for the money, has undertaken to cause him to receive it, finding himself rendered, by the badness of his title to it, unable so to do; say, in six words, a purchaser on a bad title.
39. III. Case the third.—Sufferer, a person who, having paid money on the security of a subject-matter of real property, or interest therein, in such sort that if the money, with the interest due upon it, fails of being put into his hands on or before a certain point of time, the thing itself, or money to be raised by the sale of it, as above, will be put into those same hands, is by that same cause prevented from so receiving it; say, in six words, a lender on a bad title.
40. IV. Case the fourth.—Sufferer, a would-be seller with a bad title; prevented from becoming actual seller of it by the badness of his title to it.
41. V. Case the fifth.—Sufferer, a would-be purchaser, if prevented from becoming actual purchaser by the badness of the would-be seller’s title.
In these two last cases, as well as in the three first, suffering has place; and that suffering has disappointment for its cause. But, in these same cases, the nature and the immediate cause of the evil are too diversified, miscellaneous, and uncertain, to admit of any more particular description here.
42. Now for the above-mentioned string of preparatory propositions.
I. The institution for the existence and organization of which you are occupied in making preparation, consists of a building, or set of buildings, to be employed in the character of a register-office, or set of register-offices, together with an official establishment for the carrying on the business by the performance of which the benefit contemplated is designed to be conferred on the several persons interested.
43. II. This benefit consists in the preserving from deperition, and keeping in a state of accessibility to all persons lawfully interested, a certain class of written instruments, or say documents, which have been framed for the purpose of affording, upon occasion, sufficient evidence of men’s right and title to property of a certain description, distinguished by the name of real property.
44. III. Of this benefit, the principal, if not the only intrinsically valuable, but at any rate abundantly sufficient, use, consists in the preserving the several proprietors and other persons respectively interested, from the pain of disappointment; namely, that pain, or say that uneasiness, which a man experiences when, without his consent, any thing valuable which he has been in the habit of looking to as his own, ceases so to be looked upon by him; which said uneasiness has not place in the mind of any person who has not been in that same habit or state of mind in relation to that same thing. “Blessed is he that expecteth not, for he shall not be disappointed,” says an addition proposed to be made to the beatitudes, if I misrecollect not, by Dean Swift.
45. IV. Of these two parts of the institution, neither can be brought into or kept in existence and applied to use, without a quantity, more or less considerable of expense in the shape of money.
46. V. This money is not obtainable but by means of taxes.
47. VI. In so far as taxes are imposed, money is taken from persons without their consent; and thereby, in their minds, a quantity, more or less considerable, of pain produced.
48. VII. As to aptitude. The more complete the relative aptitude of the several persons so employed, relation had to their respective official operations, the better. So likewise of the dead stock.
49. VIII. To come back to the expense, that that and aptitude may be considered in conjunction. The less the expense employed in the purchase of their respective services, so long as that aptitude is not thereby diminished, as well as in the provision made of the dead stock, the better.
50. IX. For giving, in the most concise and easily-remembered form, in the compass of seven words, expression to both these so intimately-connected positions, existence has been given to this one rule—Let official aptitude be maximized, expense minimized.
Now comes the promised Table of Objects, and means of effectuation.
I. Object the First—Expense minimized:—Proposed means of effectuation, these—
1. Building, for reception of the stock, one and no more than one.
2. Assistant registrars, or say registrar deputes, superfluous none.
3. Of assistant registrars, or say registrars depute, the salaries minimized by competition. And see Object III.
4. Of registrar deputes during the probationary year, the service gratuitous.
5. For an object of reference, map of the whole territory: and see Object V.
6. For exemplars of the documents, the manifold mode of writing employed: and see Object VI.
II. Object the Second—Delay minimized—delay of the service rendered to the suitors:—Means of effectuation, these—
1. Attendance uninterrupted—adequate to all demands.
2. Profit to functionaries from delay, none in any shape.
III. Object the Third—Aptitude of the several Functionaries Maximized:—Means of effectuation, these—
1. Sinister interest excluded, by the complete substitution of salary to fees: branch of appropriate aptitude thereby secured, the moral.
2. Probationership, antecedently to definitive location: branches of aptitude thereby secured, the intellectual and active.
3. Securities for appropriate aptitude, in all its branches, numerous; and effectual (as will be seen) beyond all example.
IV. Object the Fourth—Aptitude of the Machinery maximized:—Means of effectuation, these—
1. The arrangements regarded by anticipation as being best adapted having been appointed by parliament, head registrar (he being divested of all sinister interest) empowered to make eventually effective amendments, by the light of experience, subject to disallowance by King or either House.
V. Object the Fifth—Security for the efficiency of this same process of registration maximized:—Means of effectuation, these—
1. Object of reference, in the description given of the parcels, an all-comprehensive map of the whole territory, as per Object I., exclusive of maps of districts.
VI. Object the Sixth—Extent of the application made of this same remedy maximized:—Means of effectuation, these—
1. Subject-matters of property (moveable excepted) all admitted; copyholds, leaseholds and incorporeal; thence, in correspondent number, the proprietors.
2. Fees exacted or permitted, none; thence the relatively unopulent not excluded from the benefit of the remedy.
3. The manifold mode of writing employed, as per Object I.; thence, expense in remuneration of skilled labour saved to suitors, and the number of exemplars furnished rendered correspondent to the demand.
VII. Object the Seventh—Minimization of the burthen with which the benefit is clogged:—Means of effectuation, these—
1. Fees (as above) none. See Objects I. and VI.
2. Means of communication for documents and other writings, the letter-post; thence, expense of separate communication through skilled labour, saved.
In relation to these several means of effectuation, now follow the promised explanatory and justificative matters in detail.
Now then for these several Objects and means of effectuation in detail.
I.First Object to be accomplished—the Expense minimized:—Means of effectuation, these—
1. Means the first:—Building, for the lodgment of the whole stock—materiel and personnel (as the phrase is in French) together,—one and no more than one.
Already, if I do not misunderstand the matter, your leaning, gentlemen, is strongly in favour of this maximum of simplicity. Lest, however, after all, the determination should not otherwise be on that side, I will take the liberty of submitting to your consideration, an experiment which, in days of yore it fell into my way to make.
In the year 1796 or thereabouts (the year is not material,) Pitt the second formed a plan, and brought in a bill accordingly, for making provision for the whole pauper population of England, by means of a workhouse, under particular management, in every parish or small union of parishes. I took this plan in hand, and demonstrated that it would not do; for that, besides other objections, the difference in respect of the quantity of capital necessary between that plan and one that I pointed out, would not be less than fifteen unillions. With all his faults,—such was the candour and magnanimity of that god of so many idolatries,—he gave up his own plan, took to mine, and a day was appointed for settling the details of it, when it was crushed by a veto from on high, the details of which belong not to the present purpose. The demonstration in question may be seen in four successive articles of Arthur Young’s Annals of Agriculture. Put together, the sheets, some copies of which he presented to me, constituted a moderate-sized 8vo volume, which I propose ere long to reprint, under the title of Pauper Management, prefaced by a history of the above-alluded-to catastrophe.
It will form part and parcel of the history of the war carried on for not less than three-and-twenty years, between George the Third, of blessed memory, and one of his rebellious subjects. I mention thus much, gentlemen, lest, when you read of the capital of fifteen millions left out of his calculation by the heaven-born minister, you should suspect that while speaking of it I was in a dream.
I present to view this incident the rather because in the calculation of the expenses, projectors, however talented, are but too apt to overlook this or that item, which, when brought to light, appears to such a degree obvious, that the omission of it becomes a source of no small surprise.
Thus again: when the late Mr. James Humphreys came out with his plan for an inquiry into the subject of real property, the expense of that part of it which had for its object the obtaining no more than one portion of the information requisite, would have amounted to between four and five hundred thousand pounds. In a paper of mine in the Westminster Review, is shown how the like information might be, because it had been, obtained for next to no expense. So again, when Mr. Windsor, projector of the gas light system, came out with his proposal, an expense, the mention of which was not to be found in them, was that of the pipes by which this so useful species of air is conducted to its several destinations.
2. Means of minimization of expense the second—minimization of the number of the paid functionaries employed.
Minimization of the number of the functionaries employed? methinks I hear the draughtsman and the supporters of the existing bill exclaiming—Minimization of this part of the expense? Is that then the utmost that your plan does, or so much as professes to do? Ours exonerates the public of it altogether: it lays the burthen on the shoulders of individuals; and these, the only ones on whom it ought to press; that is to say, those by whom the accompanying benefit is enjoyed.
Answer 1. Applied to the institution in question, this measure of economy has for its ground the assumption, that the institution is of no use; for, in no inconsiderable proportion, those persons in whose instance the demand for the benefit has place, are those who have not wherewithal to pay for it; and if, for the good of the whole community taken in the aggregate, it be desirable, that for the sake of this species of saving, the benefit should be denied to this part of the whole population, so likewise is it desirable that that same denial should have place in the case of all the rest.
2. Then, as to those in whose instance no such complete inability has place, the less a man’s ability to bear the burthen is, the more severely is the pressure of it felt by him. Be the price that will be thus set upon the benefit what it may, some there will be by whom it will no more be felt, than by the man by whom a halfpenny is given to a beggar is the loss of the halfpenny; while others there will be on whom it will press with all degrees of pressure, up to that which would be produced by his being deprived of the whole of what he has to live upon.
3. In a word, this assumes the shape given to the remuneration of the functionary to be that of payment by fees; and from that mode of payment results an increase given to the expense in another way, which will be brought to view hereinafter under another head; namely, by giving increase to the number of the occasions on which the money will have to be paid. Assessed upon the public fund, the burthen presses upon each man’s shoulders in exact proportion to his ability to bear it; that is to say, in so far as the system of taxation is what it ought to be.
In another work of mine,* for the accomplishment of the desideratum here in question,—that is to say, the minimization of the number of paid functionaries and thereby of the aggregate expense of that pay—may be seen means applicable to functionaries in general, and accordingly to those here in question,—namely, power and obligation to the principal functionary to locate unpaid deputies in sufficient numbers. What may there be seen is—how the matter may be so managed as that there shall always be functionary power enough, and never more than enough: such being made, at all times, the interest of the principal, by whom these auxiliaries are located. As to this matter see below.
3.Third instrument of minimization applicable to the expense of the institution, competition applied to the remuneration of the functionaries.
If the security for appropriate aptitude on the part of the competitors were in any degree deficient, from this same deficiency an objection might be opposed to the use of this instrument of frugality; but the security which will here be proposed will be seen to be entire, and completely satisfactory; and this being the case, the objection vanishes.
As to any other objection to the application of the competition-applying principle, on those who object to the application of it in this case—on those, if any such persons there be, who approve of it in any other instance—is it incumbent to declare why it is that they disapprove of the application of it in the present instance. He who disapproves of monopoly in any one other instance, let him say on what ground it is that he approves of monopoly in this instance. To be consistent, he must approve of monopoly on the part of dealers, applied to everything in relation to which he here accords it to purchasers: the food he keeps himself from death with, the clothes he covers himself with, the labour by which he makes provision for his several other wants, whatever it may happen to them to be.
Whence then came the banishment of this instrument of frugality from this part of the labour market? Whence but from the sinister interest, to the action of which those on whose will the settlement of the matter has depended, stood exposed: to them belonging the power of location, applied to the official situation to which, on each occasion, the remuneration was to be attached, the higher the remuneration the greater the benefit to themselves: their attachment is to that part of the benefit which was reaped exclusively by themselves: not to speak of the benefit produced by the emolument, in its quality of part and parcel of the aggregate stock of the matter of corruption—a benefit in which they were but sharers.
But (says a common place argument, which, on every such occasion, may be heard from the lips and even from the pens of corruptionists,) screw down a man’s remuneration in this way, he will raise it up again by whatever instruments lie within his reach. Answer, that has been given over and over again—True, that’s what he will do if it be reduced thus low; but so will he, be it ever so high: and the higher it is, the more effective the power—the greater the facility—it gives him for screwing it still higher and higher, till he screw it up to the height of that of a king; and to crown all, to that of an emperor. Look to France—look to Louis Philippe with his Civil List of £360,000 for five months—£864,000 for twelve months. Look to the United States; compare the £864,000 with President Jackson’s £5000 or £6000 a-year.
So, if what is proposed is that the situation, with the remuneration attached to it, be made a subject-matter of purchase, he that purchases (say they) will make the most of what he purchases: just as high as the profit can be screwed up by him, just so high will it be.
Such then is the policy of these same enemies of the community and lovers of themselves: what they refuse to make application of, consists of all the several instruments by the application of which the evil is capable of being reduced: what they do make application of, is the sort of instrument by the application of which the evil is maximized.
Thus it is in the case of the most profusely remunerated of all functionaries, and (such in his situation is the nature of man,) naturally most unapt in point of intellectual and active appropriate aptitude of all functionaries: by the half million which is openly and avowedly given to him—by this it is that he is enabled to obtain in the shape of patronage—patronage of needless, and to us, useless offices, so many millions, which are not openly and avowedly, but at a vast ulterior expense covertly, given to him.
To the application made of this rule, principle, and source of economy, one exception, and one alone, there must be. On the occasion of application made of the securities in question, the existence of antecedent experience of the conduct of the functionaries in question in that same situation is supposed and is necessary. But, at the outset of the institution, by the supposition, no such experience can have had place. This exception then is a necessary one. Such at any rate will it be pronounced by those to whom it belongs to determine; and advantageous indeed will be the compromise, if with no other than this exception, they can prevail upon themselves, or be prevailed upon, to give their concurrence to this rule.
To the functionaries first located in the several situations in question, let them then assign such remuneration as on the score of as being in accordance with the masses of the matter of remuneration attached to the general run of the existing stock of official situations they would attach, were no such measure of economy as this brought to view: much good may it do them: molerate is the boon that can be claimed for them on the score of assured competence, self-denial and disinterestedness.
4. Fourth instrument of minimization applicable—gratuitousness of the service of deputes during the probationary time—say a twelvemonth.
Refuse to see who can, escape from seeing who can, deny who can venture, the efficiency of this test of aptitude. Of those by whom, in any tolerable degree, appropriate aptitude is possessed, who is there that will decline submitting to it? What danger can there be that by his submission to this test, any diminution of the requisite or desirable share of appropriate aptitude will, in the instance of the functionaries located on these terms, be produced?
Nor less favourable to the interests and feelings of the individuals in question will these arrangements be, than to the interest of the public in respect of the aptitude of its functionaries. By no individual, who in his own eyes is not able to abide this test—by no individual who is not desirous of its being so—will application of this test be made. Made then, to the satisfaction of all persons concerned, this same application of this same test will be. And on the part of each and every one of those who do not abide it, how small, in comparison will consequent suffering be? “The plan does not suit me,” says the man:—or, “I do not choose to serve in it on such terms:” and, of either of these assertions, in what way and by whom, can the verity be contested?
But under Matchless Constitution, of those on whom it depends it is the interest that throughout this as well as every other part of the official establishment, the quantity of appropriate aptitude rendered necessary on the part of the several functionaries, should be not the greatest possible, but the least possible, consistently with the keeping the government, and with it their sinister profit in all shapes, from falling to pieces: for, the greater the degree of aptitude exacted and rendered necessary, the greater will be the odds against their several relatives and other protégés,—the greater the chance that by their being found not to be possessed of it in so high a degree as their several competitors, they will stand excluded.
II.Second Object to be accomplished, minimization of delay in the service rendered to each several suitor.
1. Means of effectuation the first—Assistant Registrars, or say Registrars Depute, superfluous, none.
The number of the functionaries employed being given, the degree in which the object now in question is accomplished, will be proportioned to the quantity of attendance exacted of each such functionary: that is to say, as the number of the days on which attendance is paid by him in each year, and the number of the hours during which such attendance is paid by him on each such day.
As to the number of each man’s days of attendance in the year, deductions from the whole number of days in the year are called for, not only by the need of attendance on his private business, but by what is due to health and comfort, as well as by what is understood to be due to religion.
On the score of religion, allowed to each functionary days of non-attendance—say the fifty-two Sabbath days, with the addition of Christmas Day and Good Friday.
Hours of attendance exacted, all those on which suitors in general are inclined to repair to the spot for the purpose of receiving the appropriate service. A precise standard of reference is presented to view by the greatest number of hours habitually exacted at the hands of any functionary in any of the existing public offices.
For the number of vacation days to be allotted for the purpose, this same standard of reference may serve: say as many consecutive days as there are in [four] weeks; subject to the being, in the instance of each individual, dispersed, and placed in different parts of the year, by agreement amongst the several individuals concerned.
In addition to these ascertainable times of absentation, the accidental occurrence of sickness suffices to demonstrate, to any rational mind, the unreasonableness of any reliance on altogether uninterrupted attendance. To Matchless Constitution alone does it belong to expose the most important part of the business, as in the case of Honourable House, to be put to a stand by sickness on the part of one of its members.
Note here that, in this case as in all others, if for any part of the service rendered by the functionary, instead of or in addition to salary, remuneration were appointed or left to take the shape of fees, the purpose here in question will be but too largely frustrated. For multiplication of the fees, maximization will be made of the number of the times, and thence of the aggregate of the times, of attendance: with intervals between the several times,—and thence of the quantity of delay which each business will experience. This will already (it is hoped) be found sufficiently evident; if not, it may be seen enlarged upon in the work intituled, Petitions for Justice, &c.
Note also, that if to the number of the functionaries adequacy be secured as above, a correspondent relaxation in the severity of the obligation of attendance, may be effected without any material addition to the expense. And then it is that, through the medium of the deputation system, the quality of elasticity (so to speak) may throughout the whole field of operation be given to the provision made for the service of public functionaries; always close fitting; always enough, never too much.
III.Third Object to be accomplished—on the part of the several functionaries, aptitude maximized.
Means of effectuation, this one.
In my Constitutional Code, in relation to each of the several official situations belonging to the several departments—legislative, executive (administrational included,) and judiciary,—under the head of Securities for appropriate aptitude, provision is made for the possession of that same so highly desirable quality by the several functionaries therein respectively located. Of these same securities, some there are which, being applicable to no other species of constitution than that of a representative democracy, are foreign to the present purpose. On looking over the list of those same securities, and more particularly the list of those applicable to the judiciary department, selection has been made of these; and, after the necessary modifications made of them, to fit them for being applied to the sort of office here in question, the list of them is as follows:
1. After the first and original appointment, or say location, exclusion put upon all candidates for the situation but such as, in that of registrar depute, have given proof of appropriate aptitude in all shapes, by the exercise of the same functions under the superintendence of a registrar principal.
2. The obligation contracted by the utterance of an inaugural declaration, to be pronounced antecedently to entrance into office; and the sense of responsibility increased in proportion to the publicity of it. As to this, see Constitutional Code, ch. xii. Judiciary, § 29, Judge’s Inaugural Declaration, when published; and, as a model, in the already-published volume, Vol. I. ch. vii. Legislator’s Inaugural Declaration.
3. The interdiction put upon all emolument other than that which in the eyes of all men stands attached to the office by law. See above, Object I. Expense minimized—Means of Effectuation, 3. Remuneration superfluous, none: Object VI. Means of effectuation, 2. Fees, none—and Object VII. Burthen minimized: means of effectuation, 1. Fees (as above) none.
4. In particular, interdiction of all emoluments increasing in amount with the increase in length and number of instruments deposited and searched for, and searches made, at the expense of suitors.
5. Single-seatedness of the office: thence, integrality and undividedness of whatever responsibility, legal or moral, stands attached to the conduct of the functionary in the exercise of the duties of this his office. As to this, see Constitutional Code, Vol. I. ch. ix. Ministers Collectively, § 3, Number in an office.
6. In the eyes of all persons present in the registration-office in quality of actors (as they may be called) on the registration theatre, exposure of the tenor of the inaugural engagement, as above.
7. Of his attendance at the seat of duty, the constancy secured by the connexion established (if found or deemed necessary) between attendance and the receipt of official pay. As to this, see Constitutional Code, Vol. I. ch. vi. Legislature, § 20, Attendance and Remuneration how connected.
8. Dislocability of the registrar principal by the king or either house of parliament: by the king, to wit, by an order countersigned by the Lord Privy Seal, with special reasons assigned; by either house of parliament, without any such reasons.
Question 1. Why countersigned by a single high functionary, instead of being made an order in council?—Answer. For responsibility; for when, instead of an individual, the so-called burthen of responsibility is laid on a multitude, the pretended burthen is an air-balloon, and the ceremony a farce.
Question 2. Why give this power to the Lord Privy Seal?—Answer. On the presumption that the functionary to whom the duty of countersigning the instrument of location is allotted, is the Home Secretary. The essential point is, that the effective power of location and that of dislocation should not be in the same hand. Why? Because the inducement, whatever it were, by which the location had been effected, would, generally speaking, be sufficient to prevent the dislocation, howsoever merited, from taking place; for, by every consideration by which human conduct is commonly on such occasions most powerfully influenced and determined, the patron would stand engaged to continue his protection to his protégé.
Question 3. Why not give to the Lord Chancellor either the locative power or the dislocative? Answer. Because, judging from his relative situation, and from past experience, he would abuse it. It is of the situation, of course, that I speak, not of this or that individual, to the exclusion of others. Not one of you, gentlemen, without fear of the imputation of wishing to give offence, not one is there of you, I can venture to assert, to whose conviction it has not been manifest what injury has been done by equity judges under the pretence of justice, by counteracting the intentions of the legislature, as manifested on former occasions, by the institution of register-offices, involving titles in clouds of factitious uncertainty for the sake of the litigation and the profit wrung by them and their subordinates out of the expense.
On this, as on so many other occasions, need I add, gentlemen, that it is in the fee-gathering system, the syphilis of the law, that all this corruption has its root.
A set of securities, such as the above—this, if anything, is what is meant by the word qualifications, application of which having been customarily made when a new office has been established, has of course been made in the present instance.
During the period in which, by reason of the novelty of the institution, there has not been time sufficient for bringing to view the result of the test of appropriate aptitude afforded by service performed in the very occupation in question, an idea which, since the publication of that same code,* has occurred to me is this: namely, that to keep off unapt aspirants—to keep off all those men who in such numbers regarding themselves as being secure against the being obliged to quit, are so ready, for the sake of the emolument, to take upon themselves the duties of the office, whatever it be,—the first year’s service should be performed gratuitously. On this plan, a man who felt himself unfit for the office, would be absolutely without motive for seeking it, or so much as accepting it even it offered: whereas, in the present order of things, destitution for other cause than judgment of guilty according to legal forms on conviction of a criminal offence being morally impossible, the consequence is, that in no other shape is any degree of inaptitude sufficient to keep a man out of office, and preserve the public service from the evils to which his incapacity subjects or exposes it.
So much for that which ought to be: now for that which is. In the character of securities for appropriate aptitude on the part of the class of functionaries in question, the supposed securities, customarily provided under the name of qualifications, may, without fear of refutation, be pronounced worse than useless; and the supposed securities provided in the present instance, are of the sort of those which are thus customarily provided.
Of these same securities there are two: namely, 1. Aggregation of the candidate in question to a certain class of persons who are occupied in exercising, or endeavouring to exercise a certain profit-seeking profession; 2. Bearing a part in a certain ceremony called the taking an oath.
Neither the one nor the other of these supposed securities are means in any the smallest degree, conducive to that same declared end.
1. The class of men to which the candidate for the office in question is regarded to have been aggregated, is that of barrister at law. But, with the exception of age, to the power of aggregating a man’s self to that same class, no other condition is necessary than the having eat or appeared to eat a certain number of dinners in the same large hall in which other men are, at that same time, engaged in that same occupation.
Among the writings which have for their object the contributing to the instruction of these same men, is one that has for its title, “Jocular Customs of divers Manors.” One of these same customs consists in the emission of gas from the intestines, on certain solemn occasions, for the entertainment of the company assembled. The egesta in this latter case would not, in the character of a security for appropriate aptitude, constitute a less appropriate or less efficient one, than is furnished by the ingesta in the former case.
2. Now as to the oath. As in the nature of the case, so in practice, there are two kinds of oath—the assertory and the promissory. The one here in question belongs to the promissory sort. In the case of the assertory oath, in my Petitions for Justice, the worse than uselessness of it has been held up to view, and proofs, uncontested and incontestible, may be there seen of its being so: and, with no less truth may these same proofs be seen applying to promissory oath, in the present as well as in all other cases.
A supposed security which is inefficient, is not negatively and simply useless; it is positively much worse than useless: it is a source of delusion, producing confidence where confidence has no ground to stand upon. So far as it is a security for any thing, it is a security for relative inaptitude.
On a similar occasion, to Sir Robert Peel, when home secretary, were observations to this same effect presented: presented, but without effect.
It pains me to think, and to have to say—that, on the present occasion, these same observations have been equally unavailing.
Against truths so incontestible and so important, the eyes of public opinion will not always remain shut; and, no sooner do they open, than any draughtsman, in whose draught either of these same sham securities has place, will be covered with a wrapper of ridicule, in which it would pain me to see enveloped any of the gentlemen to whom I have the honour thus to address myself.
IV.Fourth Object to be accomplished—on the part of the machinery of the system, aptitude to be maximized.
Means of effectuation, these—
In the text of the act, do whatsoever antecedently to experience, presents itself as capable of being done towards the accomplishment of this desired purpose. But in relation to the system thus formed, give to the chief registrar the power from time to time to make whatsoever amendments shall, in his eyes, have afforded a promise of being conducive to that end; subject to disallowance either by the King alone, or by either of the two Houses.
For the giving of this initiative and defeasible power of legislation, the reason is at once simple and conclusive. For their guidance, no experience whatsoever will the framers of the act have had, whoever they are. Full experience will have had this same functionary, to whom the trust is thus proposed to be confided. True it is, that if of any other of the arrangements made by the act, the effect were to give to him an interest in the deterioration of the system, together with the power of promoting, at the expense of the universal interest, that same particular and sinister interest, a well-grounded objection would thus be opposed to this same proposed arrangement. But, 1. in the first place, by what has been proposed under the last preceding head, he will be seen to stand effectually purged of all such sinister interest. 2. In the next place, an additional and as yet unexampled security against evil in that shape, is provided by the power thus given to each one of the three component sharers in the power of the supreme legislature.
In several unconnected parts of the bill, as it stands at present, power of making regulations respecting the details of the business is conferred on this same functionary; but, as to the matters in relation to which this power is given, nothing else is done, in and by the bill; nor is any power of disallowance given to any authority other than that of the whole legislature. Between the cases in which without inconvenience, power of regulation by the hands of an authority other than the legislature may, and those in which it cannot be given without preponderantly evil consequences, it would not (it is imagined) be easy to draw the line; by the expedient here proposed, all need and all use of any such line are done away.
Eminently unpalatable to the taste, because so eminently and equally detrimental to the particular interest of some of the opposers of the principle of all-comprehensive codification, would the here-proposed arrangement be: dried up by it in no inconsiderable degree, would be the source of the indefinitely lengthy train of amendments upon amendments, with the profit of the branch of amendment-making, which this branch of Matchless Constitution has contrived to put into their hands; a profit, which cannot but have had no inconsiderable share in the producing of the opposition which continues to be made to the only arrangement by which anything like complete effect can be given to any the most salutary and indispensable arrangements, or individuals be preserved from punishment, for the not doing of those things which it has thus been rendered, and continues to be rendered, impossible for them to do; for how great is the evil, which, in their eyes, would be too great for the whole community to be afflicted with, for the sake of putting any the smallest sum into one of the noble or right honourable pockets? how extensive the conflagration that would be too extensive to be made for the purpose of roasting for him a single egg? But, by a reformed parliament, let us hope, howsoever according to custom the malefactors may be left comfortably wrapt up in impunity, the maleficent practice may be put a stop to.
Of the appropriate and best adapted mode of making amendments in existing regulations, by whatsoever authority made, a description may be seen in the part already published of the proposed Constitutional Code; namely, in ch. vi. Legislature, § 29, Members’ Motions; and of the mode in which, without detriment to the supreme power of the legislature, alterations may be made by authorities subordinate to it, an exemplification is given in the as-yet-unpublished part, namely, vol. the third, ch. xii. Judiciary collectively, § 19, Judge’s contested interpretation-reporting function; § 20 Judge’s eventually emendative function; to which reference is made in ch. vi. Legislative, § 34. Securities for appropriate aptitude, art. 44.
Having, so far as depends upon me, introduced and applied to this same business the hands which, by situation, will be in the highest degree well qualified for the performance of it, I shall there leave it, and save to myself the time and labour of framing any proposed arrangements of detail for the purpose in question, and to the gentlemen I am addressing, the time and trouble necessary to the taking of any such arrangements into consideration.
V.Fifth Object to be accomplished—security for the efficiency of the process in question—namely, the process of registration,—maximized.
Means of effectuation, an appropriate all-comprehensive map.
Altogether indispensable seems to me to be this muniment; without this for an object or standard of reference—without such an anchor as this to be fastened to,—surely to a vast proportion of the landed property in the kingdom will the title remain floating in the ocean of uncertainty.
In one part of this vast aggregate, the assurances have maps of correspondent extent for their accompaniments; in another part in the vast remainder, no such means, or say instruments of identification, have place. If necessary or useful in any one instance, where is the instance in which it can be otherwise?
An all-comprehensive original being thus formed, then, of the several parts of it should be taken a copy of each of the several parishes contained in the whole territory; with correspondent provision for extra-parochial places.
But here a two-fold difficulty presents itself:—
1. Cause of the difficulty, in the first place, the irregularities in the surface of the earth. Exhibited by this surface are all imaginable diversifications of curvature; whereas, in this graphical representation of it, on the only surface which it presents to view, no one of all these diversifications is exhibited; the surface is, the whole of it, in one and the same plane.
2. In the next place comes the entire figure of the earth, considered in its character of a solid body—an oblate spheroid—the mode of curvature, the form of its divergence and aberration from a right line, not uniform throughout, as in the case of a sphere, but varying.
General consequence, in a degree more or less considerable, incorrectness in a representation given of the portion of land in question, in every map that ever has been, or ever can be, made of this same surface.
Consequences in particular, these.
Where there are maps, in the case of each division of the surface, say in the case of each mile, the quantity of the land given by the portion of the all-comprehensive map—the general map—would not agree with that given by a particular map of the same spot, taken without reference made, and regard paid, to the all-comprehensive map.
2.—The number of the products of the next subdivision, say the acres, stated in the title-deeds as belonging to each proprietor or set of proprietors, would not agree with the number of acres represented as belonging to him or them in and by the corresponding portion of the all-comprehensive map.
3.—All round each mile exhibited by the portion of an all-comprehensive map would be a sort of fringe or border which by that map would be represented as belonging to one proprietor or set of proprietors, while by the particular and separate maps, together with the number of the acres as stated in the assurance, they would be spoken of as belonging to a different one.
In every instance in which the same mile is parcelled out between proprietors or sets of proprietors more than one, each would, in and by the number of acres stated in the assurances as belonging to him, together with the maps, if any, with which those same assurances were accompanied, be represented as having a larger part in it than he really has or could have; each would therefore be in the assurances stated, and in the accompanying map or maps represented, as possessing a quantity more or less considerable, which he could not possess but at the expense of the part possessed by the other or others; and thus in every part of the mile there would be a portion more or less considerable which would be represented as belonging to two different proprietors at the same time.
69. In relation to this, it will naturally be observed that, by this discrepancy, no actual collision, litis-contestation, or inconvenience, in any shape, is known to be produced: for that by the natural boundaries which have place upon the land itself—that is to say, the hedges, ditches, fences, palings, and the walls,—what portion it is that belongs to each such proprietor, or set of proprietors, is indicated and demonstrated beyond dispute.
True, in so far as boundaries of any sort have place, this cause of doubt and dispute is obviated and excluded. But, in every acre in which boundaries are wanting, this remedy to the deficiency has no place.
What then would be the remedy?—Answer. It would be thus expressed. Take an account of the number of feet and inches in the actual occupation of each proprietor, or set of proprietors, or their respective lessees: divide, then, in the map, the whole mile into such or such a number of parts or portions: divide the correspondent mile in the all-comprehensive map into that same number of parts or portions situated with relation to one another in the same manner. In so doing, mark their several proprietors as exhibited by each one of the correspondent portions in the all-comprehensive map, the same as those in those which are given by the number of acres; and so on in case of any ulterior or minuter division of the land among different occupiers, as in the case of towns.
From the adjustment thus made would result the demarcation proper to be made in the correspondent portions of the all-comprehensive map; and where, on the land itself, between one property and another, there is not any actually existing boundaries, the lines on which the boundaries ought to be placed.
In the country (or say in French, in the plat pays) differences of no greater an amount than that of a few feet would not, generally speaking, be very material. Not so in towns, or in the precise spots anywhere where fixed fences of any kind, more especially those composed of brick-work or cemented stone have place, a man whose fence in any direction had been too advanced, would have to pull it down, and to be charged with the correspondent quantity of expense; and so in the case of water-courses. Other cases might be brought to view; but for the particular example in proof of the importance of the general observation these may suffice.
Think of the expense which, by this course, would have to be produced in the case of a church, or any other similarly expensive public building!
On the continent of Europe, in countries more than one, the thus proposed sort of muniment has actually been brought into existence, and continues to be beneficially employed.
In this country, among the pamphlets which of late have been published on the subject of assurances, several there are in which this so essential an auxiliary to the efficiency of the main institution is recommended.
In those foreign instances, the all-comprehensive map* forms an appendage to a correspondently all-comprehensive cadastre, as it is called, containing a body of information, of which that which is exhibited in and by the sort of muniment called in English, a Terrier, forms a part.
The all-comprehensive muniment called Doomesday Book, framed so early as the eleventh century, a short time after the Norman conquest, is a sort of inchoate exemplification, though imperfect and inadequate in the degree that might be expected at so early a stage in the progress of society.
Trifling, in comparison of the usefulness of it, would be the expense of providing this same instrument of general security. For the single purpose of defence of the country, by means of fortifications, against invasion by a foreign enemy, a document of this sort, instituted at public expense, by order and under the direction of the Board of Ordnance, is in considerable advance. Of the total number of counties (in England and Scotland 52,) 18 or 19 are already on sale: among them the two largest,—namely Yorkshire and Devonshire.†
For giving facility to the recurrence made to a representation of this sort, a species of indication, applicable to any map whatsoever, has already been employed and is actually in use. A map with this improvement in it lies before me. It is a map of Paris. The whole surface is divided into parallelograms by lines composing a sort of lattice-work. In one direction, these parallelograms, as they follow one another, are distinguished and designated by the letters of the alphabet, a, b, c, &c.; in the cross direction, by numerical figures, 1, 2, 3, &c. In the margins are inserted, one under another, in alphabetic order, the names of the streets and other divisions, preceded respectively by the letter and the figure, by the conjunction of which the place or places which the reader is looking for may almost instantaneously be found.
Over and above the information, of which the several parishes and extra-parochial places in the territory in question are the subject-matter, this same document might be made to serve for supplying the like information respecting the division styled Manors.
Between parishes on the one part, and manors on the other part, various are the relations that have place:—
1. In some instances they coincide.
2. In other instances, manors more than one are contained, every one of them in an entire state, in one and the same parish.
3. In others again, parishes more than one are contained, every one of them in an entire estate, in one and the same manor.
4. In others again, in which manors one or more than one are contained in an entire state in one and the same parish; to these integers stand attached fragments more than one, which extend over parishes more than one.
5. And vice versâ, in other instances in which parishes one or more than one are contained in an entire state in manors more than one, to these integers stand attached fragments one or more than one, which extend over manors more than one.
Various are the signs and devices, by any one of which this relation between the sites of parishes on the one part, and manors on the other part, might be exhibited to the eye and held up to view.
As to the particular nature, the need of, and benefit derivable from, the ascertainment of the several manors in existence, and the mode in which the obtainment of this information may most effectually and commodiously be accomplished, it belongs not to the subject of registration; but some suggestions of mine in relation to it, may perhaps find their place on another occasion under the appropriate head.
“Give me,” said Archimedes, “give me but another place to stand upon, and I will give motion to the earth.” “Give me,” say I, “give me but a map to point to, and I will give rest and quiet to ‘all that inherit’ this our portion of the earth’s surface.”
VI.Sixth Object to be accomplished—Extent of the application made of this same security, maximized.
If the institution is productive of benefit, who are they who in respect of justice ought to be left destitute of it?—a question this, which assuredly it is incumbent on him to answer, if any such person there be, by whom opposition is made, in any shape, to the utmost possible extension that can be given to this same benefit.
Exceptions,—always excepted are all cases, if any such there be, in which by the burthen imposed in all shapes taken together (pecuniary expense included) the benefit will be outweighed. But this same burthen—on him by whom the existence of it is alleged, lies the obligation of making proof of its existence; and this obligation he will fulfil, on pain of seeing his silence in relation to it regarded as a virtual confession of the groundlessness of the opposition made by him to the proposed measure.
Means of effectuation, these—
1. Subject-matters of property (moveable excepted) all admitted: copyhold, leasehold, incorporeal; thence, in correspondent numbers, the proprietors.
Is it that the expense is such as would outweigh the benefit? On the contrary, the expense would be next to nothing. Such it was, for example, 1. In the case in which the body of information obtained for the use of Parliament had for its subject-matter the population of England, Wales included.* 2. In the case in which it had for its subject-matter the provision made throughout for the education of the people in Scotland.
Second means of effectuation—
2. Fees (as above) none; avoiding to give to any part of the remuneration the shape of fees.
Question—Why not? Answer, short and conclusive; reasons the following:—
1. To all who are unable to pay the price thus set, the service is denied: and, in every instance in which the evidence which by that service should have been preserved and rendered accessible, is for want of such service rendered unobtainable, justice itself is thereby denied.
2. To all those to whom, whether in quality of incumbents or in that of patrons, in the whole or in any part a profit is suffered to be reaped from this source, an interest is given, and that a but too efficient one, in maximizing the amount of it.
The modes in which this increase is given to it are these—1. Increasing the number of the occasions on which each fee is exigible; 2. On each occasion, increasing the quantity of the fees thus exigible; 3. In the case where the service consists in copying a written instrument, or performing any operation in relation to it, and the amount of the fee or fees increases with the length of the instrument, increasing the length accordingly; 4. If to the rendering of the service a journey is necessary, giving increase to the number of such journeys, and to the length and expensiveness of each.
Thus, upon every occasion is addition to an unlimited amount made to the expense.
3. So as to delay; where and in so far as the means employed for making addition to the profit consist in making addition to the number of the occasions on which the fee or fees are exigible, a means contributory to the effect is the minimizing the quantity of the service on each occasion performed, that the number of successive days on which it comes to be performed may be maximized: here then there are so many intervals of delay produced. Moreover, in instances to an indefinite number, so it is that by addition made to the length of the interval between occasion and occasion, addition may be made, and accordingly is made, to the number of the occacasions on which a fee or fees are exigible, and accordingly exacted.
4. When, and in so far as this is the shape in which the remuneration has place, the amount of it is in a perpetual state of uncertainty; and, whatsoever be the most proper amount, from this same proper amount it is continually divaricating; being almost always, and to an indefinite extent, either too great or not great enough: at one time the public is suffering by the excess; at another time the functionary is suffering by the delinquency.
5. When this is the mode of payment, the amount of the emolument and the sources from whence it flows, are kept concealed from the public eye; and the application of the check which by that all searching instrument would be opposed to abuse is thus averted.
True it is, that by the institution of the fee-fund already mentioned, the efficiency of the inducement to make addition to the expense is more or less diminished, and may even be extinguished altogether. But of its being extinguished altogether, there can be no adequate ground of assurance. For so long as by and from the hands of individual suitors benefit in any shape is expressly allowed or may be received without danger, so it will be; and however strong, and in appearance sufficient, the door may be which is shut against it, crevices will be found or made in this same door, and at these crevices emolument will flow or ooze in.
True it is again, that saving the above exceptions, a limit being thus put to the amount, expense in excess—in one word, depredation—is so far successfully obviated. But the eye of the public being thus excluded from the scene, abuse in other shapes is thus left without controul: for example, that oppression, which, without benefit rendered by it in any other shape to the oppressor, may be practised for the gratification of pride or enmity.
In a word, in no shape whatsoever will benefit be shown to flow from the giving this shape to the mass of official remuneration, or any part of it.
For the producing of a semblance of benefit—for the producing in the mind of the public a notion of the existence of benefit in some shape or other,—the word alacrity, or some equivalent locution, has been employed. But by no person has any attempt been made to show—by no person will any successful attempt be made to show—that benefit in any determinate shape has ever been experienced by any person from this source, nor how it is ever likely to be experienced.
In the case of the fee-fund, completely is the door shut against this supposed benefit. Emolument, none; alacrity, none. The sole assignable cause ceasing, so does the effect.
Put aside the fee-fund, thereupon comes into consideration the nature of the service in the several shapes in which remuneration in this shape is desired to be attached to it. Let any one by whom the benefit is supposed to have place, look into the service in each case, and say how it is that from the attaching to it remuneration in this shape, benefit, in the alleged shape or any other, can be seen to follow.
Let him look out for the several interesses; for the parties whose interest is any way affected: these he will find to be on the one part the several suitors, who, in person or at a distance, have need to hold intercourse with the several functionaries; on the other part, those same functionaries; and as to the suitors, they will be seen to be either—1. Persons applying to have their documents or information thereof received into the archives of the offices; or, 2. Persons having need, or being desirous of making inspection into or inquiry concerning the contents of those same archives.
True it is that under the fee-fund system, while the functionary is secured against loss, he has, in some cases, a chance and hope of profit; and in that hope a source of alacrity. But what an atom of good is this to set against the weight of the evil which has been shown to have place in the other scale!
Note that for the tutelary inspection performed by the eye of public opinion, a continual demand will be created by the danger lest, by a conspiracy between the functionaries on the one part, and solicitors or other agents of suitors on the other part, additions be made to expense, and for that purpose to delay, as above.
Shocking, in the extreme, to the delicacy of gentlemen in both these situations will, of course, be any such suspicion. But what has happened once may happen again; much more what has had place universally as well as constantly. How it is that by a conspiracy between the species of judges styled Masters in Chancery on the one part, and the solicitors of parties on the other part, may, to an enormous amount, have been habitually,—under and by virtue of the matchless corruption engendered and fostered by Matchless Constitution,—a pitiless extortion obtained from suitors on pretences knowingly false, and justice thereby to all but the very few denied, and to the few sold, has now not only been completely authenticated, but rendered universally notorious. And whether the fountain of this corruption be yet dried up, let any one who is so minded speak.
On this subject, matter may be seen in various works of mine, but more particularly that which is entitled “Justice and Codification Petitions,” &c.; for on most points close is the analogy between the sort of official service by which what is called justice is administered, or professed to be administered, by the judges and their subordinates, and that by which pre-appointed written evidence is registered. The case is, that the sort of service rendered by the functionaries belonging to a register-office of the kind in question, is, as elsewhere observed, subsidiary to the sort of service rendered by the functionaries who are considered as belonging to the judiciary establishment, and is liable accordingly to abuse in the same shapes produced by the same causes.
3. The manifold mode of writing employed: thence (besides the production of other beneficial effects to a vast amount) by reduction made in the expense, contribution made to the maximization of the number of the persons to whom the benefit of registration is imparted.
In an essay of mine on the subject of the late Mr. Humphrey’s work on Real Property, is contained a description of this invention, with a detailed explanation of the uses to which, in the field of registration, it is capable of being applied. This essay made its appearance in the form of an article in the Westminster Review, No. XII. for October 1826; and, having reserved some numbers for gratuitous distribution, I took the liberty of presenting a copy to each of the gentlemen to whom, in their quality of Commissioners of Inquiry into the Law of Real Property, this paper is addressed. Of all these copies the receipt has been acknowledged.
Of a contribution so highly important as this invention seemed to me to be to that service to the cause of justice, the conferring of which was the purpose of the commission given to them, to find no notice taken was to me a disappointment of no ordinary severity. But, at present I have in hand a security for the cognizance which they will take of it; I mean, the engagement which I set out with begging their attention to—an engagement, fruit of that public spirit by which they stand so eminently distinguished—I mean the engagement to give publication in their reports, to whatsoever suggestion I shall have submitted to them for that purpose.
Here follows, then, of that same article, such part as regards the manifold mode of writing. [Here follows the passage, from “Now as to Registration” near the end of p. 405, to “Marriage Settlement,” near the beginning of p. 408, antea.]
Gentlemen, you have read what is above. I now call upon you—I hereby call upon you—either in your report or proposed law, to give to that instrument of justice and security against fraud on one part, and ruin to countless individuals on the other part, the attention and employment so incontestibly due to it, or if not, to say why not; for, on the score of conciseness, this locution I am content to borrow even from the judicatories which by so sad a misnomer call themselves Courts of Equity.
Yes; fixed upon you already is the public eye; and under the sharpened eye of a reformed parliament, fastened upon you it will be with unprecedentedly searching energy.
Pretences, indeed, I have heard—reasons I will not call them—the name of reason I will not profane with them—pretences, then, I will call them; but such pretences—I am ashamed to think of them. I am ashamed to think from what lips it is that I have heard them. Name those lips I will not: they were such from which I should have hoped for better things. “Of any such number of copies (said the voice)—of any greater number of copies than are at present in use there is no need. The remuneration for skill in a laborious profession ought not to be cut down too low.” Then there is the paper—the paper not white enough—the ink not black enough. In a word, the thing was (I found) an innovation—the offspring of theoretical fancies—instead of conformity forming a perfect contrast to the precious fruit of ancestor-wisdom—the existing practice. As to practice, true it is it had already been in use for years. In use?—but with whom? Is it for official dignity to put itself to school?—to school?—to the school of a newspaper?
So much for the arguments against the use of this instrument of security against forgery and of reduction of expense. Now for some matters of fact, some states of things, in favour of it.
1. First, as to the notion about uselessness. I turn to the masterly and admirably-instructive work, the gratuitously-distributed volume of one of your number, Mr. Tyrrell, intituled, “Suggestions to the Commissioners appointed to inquire into the Law of Real Property.” In it I read the following passages:—
Page 263. “If it be thought improper to take the custody of wills, which may include any personal estate, from the Ecclesiastical Courts, office copies of them might be registered upon being authenticated by an affidavit made by the officers who have examined them, and heavy penalties should be imposed upon them in case of negligence in overlooking a mistake. The errors in the official copies made at Doctors’ Commons are so frequent, that few counsel will venture to advise upon an obscure will without requiring to see the original, or requesting the solicitor to ascertain the accuracy of the copy. I have met with several instances of important mistakes. In one office copy which was examined with the original by my desire in the last year, four verbal errors were found in about as many lines, every one of which altered the interest of the devisees.”
Page 264. Speaking of Judgments: “They are not binding, under the present act, upon lands in a register county until they have been registered in that county, and in like manner they should be required to be registered separately with respect to every different county in which there may be estates intended to be charged with them, and not to be effectual as against other securities or assurances of lands in such county which may have been previously registered.”
That which it seems clear to me was, on this occasion, contemplated by Mr. Tyrrell, is—an indefinitely repeated process of registration; and, if this be really what was meant by him to be proposed, the consequence is, that in relation to the demand it presents for the manifold mode of writing, it makes no difference where the scene of the operation lies: whether in one and the same edifice or in so many different edifices. I say in so many different edifices, or at least in some considerable number of different local edifices: for, as between the one plan and the other, the option is (in p. 274) stated by him as hanging nearly in equilibrio.
Page 275. “An official copy of any deed, will, or other document might be given to any person entitled to an interest in the estate, and might be signed by the two clerks, by whom it may have been examined with the original, and who should be liable to a penalty for every mistake in it.”
So says Mr. Tyrrell. Now then for a few questions to him:—
1. To the number of the persons to each of whom it may happen to have an interest in this same estate, what is the limit that can be set?
2. Accordingly, what is the limit that can be set to the number of the copies which on this plan might be needful? with a fee for each?—a fee increasing with the length of each such copy?
3. Or to the number of the fees, payable in respect of these proposed double attestations?
4. Or eventually to the number of the mistakes to which it may happen to have been made, with fees for the several persons employed in the correction of those same mistakes?
Not to speak of the quantity of time consumed in the discovery of the error, and the applying the corrective to it.
5. On the supposition, that in lieu of the ordinary mode of taking copies, exemplars—all of them equally entitled to the appellation of originals—were taken in the manifold way, what possibility would there be of any one such mistake?
True it is, that, supposing the number of such exemplars to exceed 14, there would not be a possibility of furnishing an exemplar to each of the persons in question, without the necessity of a transcript from the original set of exemplars; in which extraordinary case a possibility of mistake would have place; and perhaps it might even happen that the number in which in this case the marks were sufficiently clear, might not be quite so great as that of the copies taken. But in this case nothing could be easier nor more efficacious than the remedy: namely, a few words written on one of the leaves of the ulterior batch or batches, stating them not to belong respectively to the first.
Page 273. “The duplicates of registers of births, marriages and deaths, should be kept in the public office for the county in which they may be made.”
To this passage applies with equal propriety the observations made on the passages in p. 263 and 264; in which observation is stated the ground on which I concluded that what he assumed the existence of was, on each occasion, a not improbable demand for indefinitely large numbers of copies.
Page 276. “An official copy of any deed, will, or other document, might be given to any person entitled to an interest in the estate, and might be signed by the two clerks by whom it may have been examined with the original, and who should be liable to a penalty for every mistake in it.”
Thus far Mr. Tyrrell. Now then say I.—Where is the man that will undertake to set any and what bounds to the number of the copies which for this purpose it may happen to a will, for example, to present the need of, with the skilled labour necessary to the examination applied to each of them? that skilled labour to the inadequacy of which to the purpose of preventing evil consequences to an indefinite extent, you have just been seeing him bear such ample testimony? On the other hand, see how the case stands on the supposition of the writings being performed in the manifold mode: 8, 10, 12, or even if necessary as many as 14, written by one and the same hand, at one and the same time. I say 14: this is capable of being done; for this has been done. If of the whole number any one is correct, so are all the rest. If in any one there be any error, that same error has place in all the rest; and for the detection of it in them all, no skilled labour is necessary or of use.
Then as to the correction of these errors. With pen and ink, in the common way, correction made in the manner in which corrections are made in a proof sheet in printing having been made in any one of them, the number of words the aggregate of these corrections consisted of, would be all that would be to be copied in the others; and of these errors—one or all of them—how great soever may be the importance, not frequently can it happen that the number should be very considerable.
When the worst comes to the worst, all that would be to be done is, the copying over again such of the leaves, and such of them only, in which the errors make their appearance. And this is one advantage resulting from the moderateness and uniformity which may be given to the size of the leaves, whereas for anything that appears in the bill, the documents sent into the office for registration may be of the great and greatly diversified extent of which papers and skins of parchment are susceptible.
Page 278. “It would be convenient to require that every deed, will, or document, brought for registry, should be accompanied with a short synopsis or statement of the contents; in order that, when found to be correct, it might be copied into the register book, as a marginal index to the copy of the instrument, and also with such other description of the nature of the document as ought to be inserted in any of the indexes or books of reference.”
Supposing the sort of abridgment in question to be of use, and for facility of conception (it should seem) it would be—for so it is in the case of a bill and an act of parliament, it might be ordained to be made in the original, in which case it would have place of course in each of the several exemplars of it. But a standing and universally-applying rule should be enacted, declaring that no words employed in the abridgment shall be understood as influencing the construction to be put upon the text at large.
Will it be said that by the employing exemplars of the whole of each document instead of the proposed abridgment, the bulk of the aggregate number of the deposits would be swelled to such a degree, that the expense of the buildings necessary for the reception of them would be so great as to constitute a decisive objection against the use thus proposed to be made of the manifold mode? At any rate, this objection would not lie in the mouth of any man to whom (as in p. 275) the choice of having a building for each one of the forty-two counties, and the having but one for all the counties together, is stated as being nearly a matter of indifference.
On the plan proposed in the above extract, here would be for learned gentlemen the profit, and for unlearned parties the expense, of skilled labour to be employed in the drawing of these same synopses with the danger of errors therein occurring, and the certain expense of corrections to be applied to those same errors: in the case of the manifold exemplar of the document at large, no demand for any such synopsis, nor any possibility of any such errors.
Page 278. “The office,” he goes on to say, “might be divided into two departments, one for ascertaining the authenticity of documents proposed to be registered, and the other for preserving and affording facility of reference to them; and they might be so regulated that the one should afford a check against negligence or error in the other. The latter department might be divided into as many different offices as there are counties or ridings, including the cities and towns, which are counties of themselves in the districts in which they are locally situated: and there might be an additional office for such documents as relate to more than one county.”
Thus far Mr. Tyrrell. For my part, I do not clearly perceive the utility of this reduplication of the expense: still less the preponderance of the benefit in this case over the burthen: all that in relation to this matter I do clearly perceive is—that, by the use of the manifold, the expense, whatever it is, would be nearly, and the danger of error altogether, done away.
So much as to the notion about needlessness.
In fine, to the employment proposed to be given to the manifold mode of writing, is there now any really operative objection, other than that which is opposed by the fees, which by it would be kept out of the pockets of learned gentlemen, and kept from taking their departure out of the pockets of unlearned suitors?
While writing this, I am also employed on my plan for extinguishing the factitious delay, factitious and mis-sealed expense, with the thence-resulting sale and denial of justice. The manifold mode of writing applied to the minutation of evidence, is a means and instrument altogether indispensable, the employment of it a condition sine quâ non, to the giving to that unspeakably-important benefit the degree of perfection it is susceptible of: and of its usefulness with reference to that ulterior purpose, mention may be seen hereinabove made.
By adopting and exemplifying these my suggestions in relation to it, it depends upon you, gentlemen, to bring under the eyes of all whom it may concern, a demonstration of its practicability and usefulness, for that the most important of all purposes.
The subject-matter committed to our consideration (says somebody) is, not how justice may be administered at least expense, but how the respective owners of what is called real property may be best secured against the loss of it. True: but if the instrument in question, be it what it may, is good for the purpose in question, its being also good for another purpose, or for other purposes in any number, is most assuredly, to any intelligent mind, no reason why use should not be made of that same instrument to that same purpose.
Yes: should it (which I ardently wish that it may not, and venture to hope that it will not) be my misfortune, gentlemen, to see you wilfully suffering this grand instrument of justice and security to remain unemployed, for want of any endeavours on your part to give adoption and support to it, and the community to remain destitute of the benefit of which it affords so bright a prospect,—parliament, and through parliament, or without parliament, other nations as well as this shall hear of it; and to the latest posterity the shame of such a wilful neglect shall lie on the heads to which it belongs. No; never so long as I have a voice, or a pen, capable of giving utterance to these my wishes,—never shall cease my endeavours for the adoption of it—my incontestably just reproaches for the neglect of it.
VII.Object the Seventh.—Minimization of the burthen in the shape of expense, with which the benefit produced by registration is clogged.
Means of effectuation, these—
1. Burthen transferred from individuals to public.
The burthen thus transferred from the shoulders least able to the shoulders most able to bear it.
In the shape of fees, unless proportioned in each instance to the pecuniary ability of the individuals at whose hands respectively they were called for (which is what they could not be,) the burthen would, in so far as paid, press on each individual with a weight of affliction more and more heavy, in proportion as he was less and less able to bear it; and, in individual instances to an indefinite number, the individual not having wherewithal to pay the fee or fees, would exclude him altogether from all participation in the benefit of the institution.
For, to the smallness of the value of the subject-matter in question, no limit can be set.
In regard to feelings, what the smallness of the value in question is too apt to do—indeed, to a greater or less degree, it may be affirmed, has accordingly done,—in the breast of every public man by whom the matter has ever been taken into consideration, is, to diminish the idea of the pressure; and that in such sort as to exclude from his affections all regard for it: unhappily no such effect has it upon the feelings of the individual who is thus dealt with.
2.Fees, as above, none: remuneration of the functionaries, the whole of it, in another shape; namely, that of salary.
Of the importance of this object, considered in another point of view, namely, the minimization of the expense, whatsoever be the shoulders on which it is laid,—a view has been already given; that is to say, under the head of the first object—Expense minimized.
3.Means of communication for documents and other writings, the letter-post: thence, expense of separate communication through skilled labour, saved.
In the bill, I have the satisfaction of seeing this mode of communication ordained to be employed. How well adapted it is to this purpose, and how prodigious the saving made by it, in comparison with that mode of communication, by special messengers, which is employed where law proceedings are the subject, has been abundantly shown, and is much too abundantly felt.
In a work of mine, intituled Petitions for Justice and Codification,—namely, in p. 158 of the Petition for Justice, art. 9, of the part, which has for its subject-matter the judiciary establishment,—a proposition to this effect is contained: “That, for trustworthiness and economy,” (says the passage in question) “the business of message-carrying be, as far as may be, performed by the machinery of the letter-post.”
Gentlemen! I have now said my say. For your part, you have a choice to make: you will either break your engagement and consign these pages to oblivion, or keep to your engagement, and to this address, presumptuous as it is, give publication in your next report. Dixi.Jeremy Bentham.
Queen’s Square Place, Westminster,
4th July 1831.
[* ]Namely, the work intituled, “Constitutional Code,” &c.
[* ]See (when published) Dispatch Court Bill, § xi. Auxiliary Judges.
[* ]Cassini is the person of whom the muniment of that sort constructed in France bears the name: Charte Trigonometrique (if I am not misinformed) the name of the muniment itself.
[† ]If I am not misinformed, offer has been made, either to complete that survey or to make a new one, and construct the hereby desired map for £50,000.
[* ]See Return intituled Parish Registers; Honourable House papers, date of order for printing 25th and 30th March 1831, No. 298.