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PART II. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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OF TITLES WHICH CONFER A RIGHT TO PROPERTY.*
Thus far we have shown the reasons which should lead the legislator to sanction the existence of property. But we have only considered wealth in the mass: it is, however, necessary to descend to details; to take the individual objects which compose it, and seek out the principles which ought to govern the distribution of property at the periods when it presents itself to the law for appropriation to such or such an individual. These principles are the same that we have already laid down: Subsistence, abundance, equality, security. When they accord, the decision is easy: when they separate, it is necessary to learn to distinguish which ought to be preferred.
Actual possession is a title to property, which may precede and supply the place of all others: it will be always good against every man who has no other title to oppose to it. Arbitrarily to take away from him who possesses, in order to give to him who possesses not, would be to create a loss upon one side and a gain upon the other. But the amount of the pleasure would not be equal to the amount of the pain. First reason:—One such act of violence would spread alarm among all proprietors, by attacking their security. Second reason:—Actual possession, therefore, is a title founded upon the good of the first order and the good of the second order.
What is called the right of the first occupant, or the original discoverer, amounts to the same thing. When the right of property is granted to the first occupant—1st, He is spared the pain of disappointment; that pain which he would feel at finding himself deprived of the thing which he had occupied before all others. 2dly, It prevents contests; the combats which might take place between him and successive competitors. 3dly, It gives birth to enjoyments which, without it, would not exist for any one: the first occupier, trembling lest he should lose what he had found, would not dare openly to enjoy it, for fear of betraying himself; hence, all that he could not immediately consume would be of no value to him. 4thly, The good that is secured to him, acting in the character of reward, becomes a spur to the industry of others, who are led to seek to procure for themselves similar advantages; and the increase of the general wealth is the result of these individual acquisitions. 5thly, If every unappropriated thing did not belong to the first occupier, it would always be the prey of the strongest: the weak would be subject to continual oppression.
All these reasons do not present themselves distinctly to the minds of men: but they perceive them confusedly, and feel them as by instinct. Hence they say reason, equity, justice, direct it. These words, repeated by every body, without being explained by any one, express only a sentiment of approbation; but this approbation, founded upon solid reasons, can but acquire new force from the support of the principle of utility.
The title of original occupation has been the primitive foundation of property. It may be employed again, with regard to newly-formed islands, or lands newly discovered, reservation being made of the right of governing—the superior right of the sovereign.
Ancient bonâ fide Possession.
Possession of a certain standing, fixed by the law, ought to be superior to all other titles. If you have allowed so long a time to elapse without claiming your right, it is a proof that you have not known of its existence, or that you did not intend to make use of it. In these two cases, there has not been any attempt on your part—any desire to obtain possession of the thing; but on mine there has been the attempt and the desire to preserve it. To leave me in possession, is not to oppose security: to transfer it to you, is to attack it, and is to make all possessors uneasy, who know of no other title to their property than ancient bonâ fide possession.
But what time should be requisite to produce this displacement of hope? or, in other words, what time is requisite to legalize property in the hands of its possessors, and to extinguish all opposing titles? Nothing can be precisely determined: the lines of demarcation must be drawn at hazard, according to the value of the goods to which they refer. If this line of demarcation does not always prevent disappointment among those interested, it will prevent at least all evils of the second order. The law warns me, that if, during one year, ten years, or thirty years, I neglect to claim my right, the loss of this right itself will be the result of my negligence. This threat, the effects of which I can prevent, does not injure my security.
I have supposed that the possession is honestly obtained: in the contrary case, to confirm it would be, not to favour security, but to reward crime. The age of Nestor ought not to be sufficient to secure to an usurper the wages and the price of his iniquity. For why should there be a period when the male-factor should become tranquil? why should he enjoy the fruits of his crimes under the protection of the laws which he has violated?
With respect to his heirs, it is necessary to make distinctions. Are they honest? There may be alleged in their favour the same reason as for the ancient proprietor, and they have possession, besides, to incline the balance in their favour. Are they dishonest, as their predecessors were? They are his accomplices, and impunity ought never to be the privilege of fraud.
Second Title—Ancient bonâ fide Possession, notwithstanding opposite title.
This is what is commonly called prescription.—Reasons upon which it is founded: Prevention of disappointment—General security of proprietors.
Possession of the Contents, and of the Produce of Land.
Property in land includes all that this land contains, and all that it produces. Can its value be any thing but its contents and its produce? By its contents, are understood every thing which is below the surface, as mines and quarries; by its produce, every thing which belongs to the vegetable kingdom. All possible reasons unite for the giving this extent to the right of property in land—security, subsistence, the increase of the general wealth, the blessing of peace.
Possession of what the Land nourishes, and of what it receives.
If my land nourish animals, it is to me they owe their birth and their nourishment; their existence would have been a loss to me, if the possession of them did not secure me an indemnity. If the law give them to any one but me, there will be all the loss on one side, and all the gain on another—an arrangement opposed as well to equality as to security. It would then be my interest to diminish their number, and to prevent their increase, to the detriment of the general wealth.
If chance have thrown upon the earth things which have not yet received the seal of property, or which have lost the impression; as a whale cast on shore by a tempest, the scattered remains of a shipwreck, or uprooted trees; these things ought to belong to the possessor of the land. The reason of this preference:—He is so situated as to derive a profit from them, without loss to any individual: they cannot be refused to him, without occasioning a pain of disappointment; and indeed no one can take possession of them without occupying his land, or without encroaching upon his rights. He has in his favour all the reasons of the first occupant.
Possession of neighbouring Lands.
The waters which have covered unappropriated lands leave them:—To whom shall the property in these new lands be granted? There are many reasons for giving them to the proprietors of the neighbouring lands: 1st, They only can occupy them without encroaching upon the property of others. 2d, They only can have formed any hope respecting these lands, and previously considered them as belonging to themselves. 3d, The chance of gaining by the retreat of the waters is only an indemnity for the chance of losing by their invasion. 4th, The property in lands acquired from the waters will operate as a reward exciting to the labours necessary for this kind of conquest.*
Amelioration of one’s own things.
If I apply my labour to one of those things which are already considered as belonging to me, my title acquires new force. These vegetables which my land produces—I have sown and gathered them. I have tended these cattle, I have dug up these roots, I have felled these trees, and I have hewn them. If I should have suffered on having these things taken from me in a rough state, how much more shall I not suffer now, since each effort of my industry has given to these objects a new value, has strengthened my attachment to them, and the wish I have to keep them? These sources of future enjoyments, continually augmented by labour, would not exist without security.
Mutual Possession and bonâ fide Amelioration.
But if I apply my labour to a thing which belongs to another, treating it as if it were my own; for example, if I have made cloth with your wool; to which of us ought the thing produced to belong? Before answering this question, the question of fact must be cleared up: Was it honestly or dishonestly that I treated the thing as my property? If I have acted dishonestly, to leave me possessed of the thing produced, would be to reward the crime: if I have acted honestly, it remains to be examined, which of the two values is the greater—the original value of the thing, or the value added to it by the labour? How long has the first possessor lost it? how long have I possessed it? To whom does the place belong, in which it is found situated, at the moment it is reclaimed—to me, to the ancient possessor, or to another?
The principle of caprice having no regard to the measure of pains and pleasures, gives all to one of the parties, without caring for the other. The principle of utility, desirous of reducing to the lowest term, an inevitable inconvenience, weighs the two interests, seeks a method of reconciling them, and prescribes indemnities. It awards the article to that one of the two claimants, who would lose the most if his claim were rejected, but subject to the charge of giving to the other a sufficient indemnity.
It is after these same principles, that the same question ought to be resolved, with regard to an article which has been mixed and confounded with another; as metal belonging to you, which has been mingled in the crucible with metal belonging to me; liquor belonging to me, which has been poured into the same vessel with liquor belonging to you. There have been grand debates among the Roman lawyers, to determine to whom to give the whole. The one party, under the name of Sabinians, would give the whole to me; the other party, under the name of Proculians, would give all to you. Which was right? Neither of them: their decision always left one suffering party. One simple question would have prevented all these debates: Which of the two, by losing what had been his, would lose most?
The English lawyers have cut the gordian knot. They have not taken the trouble to examine where would be the greatest injury: they have neither considered honesty nor dishonesty, nor the greatest real value, nor the greatest desire to keep. They have decided that moveable property shall always be awarded to the possessor at the time, subject to the charge of indemnifying the original proprietor.
Exploring of Mines in the Lands of another.
Your land incloses in its bosom treasures; but, either from want of knowledge, or want of means, or want of confidence in your success, you will not seek for them, and the treasures remain hidden. If I, a stranger to your property, have all that you want for their exploring, and I ask to do it, ought the right to do so to be awarded to me without your consent? Why not? Under your land, the buried wealth does good to no one: in mine it will acquire great value; thrown into circulation, it will animate industry. What injury is done to you? You lose nothing: the surface, the only thing from which you derive any thing, remains always in the same state. But what the law, attentive to your interests, ought to do for you, is to award you a greater or less considerable part of the product; for though this treasure was nothing in your hands, it left you a certain expectation of profiting by it some day, and this chance ought not to be taken from you without indemnity.
Such is the law of England. In certain districts, it permits, upon certain conditions, the pursuit of a vein of metal discovered in the field of another, to whosoever wishes to try the adventure.
Liberty of Fishing in Great Waters.
Great lakes, great rivers, great bays, and especially the ocean, are not occupied as exclusive property. They are considered as belonging to no person, or, to speak more correctly as belonging to all.
There is no reason for limiting the right of fishing in the ocean. The multiplication of most kinds of fishes appears inexhaustible. The prodigality, the munificence of nature in this respect, surpasses every thing which can be conceived. The indefatigable Lewenhoek has estimated the number of eggs in the roe of a single cod at above six millions. What we can take and consume in this immense magazine of food is absolutely nothing, compared with the destruction produced by physical causes, which we neither know, nor can prevent, nor weaken. Man in the open sea, with his nets and lines, is only a feeble rival to the great tyrants of the ocean; whilst as to the fishes of rivers, lakes, and little gulfs, the laws take efficacious and necessary precautions for their preservation.
There is no reason for jealousy, no danger of diminishing the sources of wealth, by the number of competitors: the right of the first occupant may be left for each, and every species of labour encouraged, which tends to increase the general abundance.
Liberty of Hunting upon Unappropriated Lands.
It is the same with uncultivated and unappropriated lands, wild forests. In those vast countries which are not peopled in proportion to their extent, these tracts form considerable spaces, in which the right of hunting may be exercised without restraint. Man is there as yet only the rival of the carnivorous animals, and the chase extends the sources of subsistence without injury to any one.
But in civilized societies, in which agriculture has made great progress, where the unappropriated lands bear only a small proportion to those which have received the seal of property, there are many reasons which plead against the right of chase granted to the first occupier.
First Inconvenience.—In those countries where the population is numerous, the destruction of wild animals may proceed faster than their reproduction. Render the chase free, the kinds of animals which are its objects may be sensibly diminished, and even annihilated. The sportsman would then have as much trouble to procure a single partridge, as he has now to procure a hundred; and this would make them a hundred-fold dearer. He would not himself lose, but he would only furnish to society one hundredth part of the value he now furnishes. In other and more simple terms, the pleasure of eating partridges would be reduced to a hundredth part of what it is.
Second Inconvenience.—The chase, without being more productive than other labours, has unhappily more attractions: play is there combined with labour, idleness with exercise, glory with danger. The charm of a profession, so well suited to all the natural tastes of man, draws into this career a great number of competitors: by their rivalry they reduce the price of the labour employed upon it to the most simple subsistence; and in general this class of adventurers will be poor.
Third Inconvenience.—The chase having particular seasons, there will be intervals in which the activity of the hunter will be chained up. He will not easily return from a wandering to a sedentary life—from independence to subjection—and from a habit of idleness to a habit of labour. Accustomed, like the gamester, to live upon chances and hopes, a small fixed salary will have few attractions for him. His is a state which leads a man to crime, from its misery and idleness.
Fourth Inconvenience.—The exercise even of this profession is naturally fruitful in crimes. The multitude of quarrels, of lawsuits, prosecutions, convictions, imprisonments, and other punishments to which it gives rise, are more than sufficient to counterbalance its pleasures. The hunter, tired of vainly waiting for his prey in the high-roads, spies out in secret the game of the neighbouring proprietors. Does he think himself observed? he turns aside, he hides himself, he uses patience and cunning. Does he think there are no witnesses? he no longer respects any bounds; he passes the ditches, he leaps the hedges, he lays waste the inclosures, and his cupidity, betraying his prudence, throws him into situations from which he often cannot escape without misfortune or crime.
If the right of chase were permitted on the high-roads, an army of guards would be requisite to prevent the wanderings of the hunters.
Fifth Inconvenience.—If this right of chase be allowed to exist, though so little advantageous when exercised in such narrow limits, an assortment of laws is requisite in the civil and penal code, to determine its exercise and to punish its violations. This multiplication of laws is an evil, because they cannot be multiplied without being weakened. Besides, the severity necessary to prevent such easy and attractive crimes, gives an odious character to property, and places the rich man in a state of war with his indigent neighbours. The means of cutting short this inconvenience is not to regulate, but to suppress this right.
The prohibitory law once known, no expectation will be formed of enjoying this privilege: partridges will be no more coveted than fowls, and in the minds of the multitude, poaching will not be distinguished from theft.
It is true, that at present popular ideas are in favour of this right of chase; but if it be sometimes necessary to yield to popular ideas, it is only upon those occasions in which they have great strength, and in which there is no hope of changing their course. When pains shall be taken to enlighten the people, to discuss the motives of the law, to make them consider it as a means of peace and security, by showing that the exercise of this right is reduced almost to nothing—that the life of a hunter is miserable—that this ungrateful profession incessantly exposes him to criminality, and his family to indigence and shame, I dare affirm that popular opinion, pressed by the continual and gentle force of reason, will in a short time take a new direction.
There are some animals whose value after death does not compensate for the damages they do: such are foxes, wolves, bears, all carnivorous beasts, the enemies of the species subjected to man. Far from preserving them, it is only desirable that they should be destroyed. One method is to give the property in them to the first occupant, without regard to the territorial proprietor. Every hunter who attacks hurtful animals ought to be considered as employed by the police. But this exception should only be admitted with regard to animals capable of causing great waste.
ANOTHER MODE OF ACQUISITION—CONSENT.
*It may, however, happen, that after any thing has been possessed (by a legal title), the individuals may wish to give it up, by abandoning its enjoyment to another. Shall this arrangement be confirmed by the law? Without doubt it ought to be: all the reasons which plead in favour of the ancient proprietor are no longer on his side, but plead in favour of the new. Besides, the former proprietor must have had some motive for abandoning his property. He who speaks of a motive, speaks of a pleasure or its equivalent: pleasure of friendship, or of benevolence, if the thing be given for nothing; pleasure of acquisition, if it be made an object of exchange; benefit of security, if it have been given to save him from some evil; pleasure of reputation, if he propose by it to acquire the esteem of his fellows. The sum of enjoyment, as to these two interested parties, is necessarily augmented by the transaction. The acquirer puts himself in the place of the collater as to the ancient advantages, and the collater acquires a new advantage. We may therefore establish it as a general maxim, that every alienation implies advantage. Some good always results from it.
If there be an exchange, there are two alienations, each of which has its separate advantages. This advantage for each of the contracting parties is the difference between the value which they put upon what they give up, and the value of what they acquire. In each transaction of this kind, there are two new masses of enjoyment. In this consists the advantage of commerce.
We may observe, that in all the arts there are many things which can only be produced by the concurrence of a great number of workmen. In all these cases, the labour of one would possess no value, either for himself or others, if he could not exchange it.
Causes of Invalidity in Exchanges.
There are some cases in which the law ought not to sanction exchanges, and in which the interests of the parties ought to be regulated as if the bargain did not exist; because, instead of being advantageous, the exchange would be found hurtful either to one of the parties or to the public. All the causes which invalidate exchanges, may be ranged under the nine following heads:—
1. Undue Concealment.—If the object acquired be found to be of an inferior value to that which has served as the motive for its acquisition, the new proprietor experiences regret, and feels the pain of disappointment. If this value be below that which he has given in exchange, instead of a gain, he has made a loss. It is true that the other party has made a profit, but the pleasure of gaining is not equal to the evil of losing. I have paid ten pounds for a horse, which is worth them, if he were sound; but since he is pursy, he is not worth two: the seller has gained eight pounds, and I have lost the same sum. When the interests of these two parties are weighed together, the bargain is not advantageous, but contrariwise.
However, if at the time of the bargain, this degradation in value was not known to the former proprietor, why should the bargain be void?—why should he be constrained to make a disadvantageous exchange? The loss must fall upon some one: why should it be made to fall upon him, rather than the other?
Suppose even that he knew of this circumstance which depreciated the value of the article: was it his place to make it known, rather than that of the buyer to inquire respecting it?
These two questions ought always to be asked in connexion with invalidity, resulting from undue concealment:—Did the seller know of the existence of the defect? Was the case one of those in which he was obliged to reveal it? The solution of these questions requires too many details and researches to have place here; besides, it is not possible to frame an answer which would embrace all cases, and different modifications would be requisite, according to the different kinds of things.
2. Fraud.—This case is more simple than the preceding. A fraudulent acquisition ought never to be permitted, if it can be hindered: it is an offence which approaches to theft. You have asked of the seiler if the horse be pursy; he has replied in the negative, knowing the contrary. To sanction the bargain, would be to reward a crime. The reason given in the preceding case may be added, namely, the evil for the buyer is greater than that for the seller, and it is clear that this cause of invalidity is well founded.
3. It is the same with undue Coercion.—The seller, whose horse is only worth two pounds, constrains you by violence and threats to buy it for ten pounds: suppose that you would have been willing to pay him two pounds, the surplus is so much gained by a crime. It is true, that this loss was an advantage to you in comparison with the evil with which you were threatened in case of refusal; but neither this comparative advantage, nor that of the delinquent, ought to counterbalance the evil of the crime.
4. It is the same with Subornation.—I understand, by subornation, the price of a service which consists in the commission of a crime; as money offered to engage a man to take a false oath. There are two advantages in the bargain—that of the suborned, and that of the suborner; but these two advantages are nothing equal to the evil of the crime.
I remark in passing, that in cases of fraud, undue coercion, and subornation, the law should not content itself with annulling the act: it ought to oppose a stronger counterpoise by means of punishments.
5. Erroneous Supposition of Legal Obligation.—You have delivered your horse to a man, believing that your steward had sold him; and this had not happened: you have delivered your horse to a man, believing that he was authorized by the government to make you give him up for the service of the state; but he had no such commission: in a word, you have believed yourself under a legal obligation to sell, and this obligation did not exist. If the alienation should be confirmed after the error is discovered, the buyer would find that he had made an unexpected gain, the seller an unexpected loss. But we have seen that the advantage of gaining, cannot be compared with the evil of losing; besides, this case may be referred back to the head of undue cœrcion.
6. Erroneous Supposition of Value.—If, in alienating any thing, I am ignorant of a circumstance which tends to increase its value, when I discover my error, I experience regret for the loss. But is this a proper cause of invalidity? On the one hand, if such causes of nullity are admitted without restriction, there is great risk of throwing discouragement upon exchanges; for where is the security for my acquisitions, if the former proprietor could break the bargain by saying, “I did not understand what I did?” On the other hand, there would be a lively pain of regret, if, after having sold a diamond as a piece of crystal, there were no method of recovering it. To maintain an even balance between the parties, the diversity of circumstances and things must be regarded. It is necessary always to examine whether the ignorance of the seller were not the result of negligence; and even in cancelling the bargain, if the case demand it, it is proper, before every thing else, to provide for the security of the buyer interested in its confirmation.
However, it may happen, that a bargain free from all these defects may at last be found disadvantageous. You have bought this horse only for one journey; and the journey is not made. You were ready to set out; the horse fell ill and died. You set out; the horse throws you, and you break your leg. You mount the horse; but it is that you may go to rob upon the highway. The fancy which led you to purchase it being passed, you resell it at a loss. Cases might be multiplied to infinity, where a thing, whatever it may be, acquired on account of its value, may become useless, or burthensome, or dangerous, either to its acquirer, or to another. Are not these exceptions to the axiom, that every alienation implies advantage?—are not these as reasonable grounds of invalidity as the others?
No: all these unfavourable events are only accidents, and subsequent to the conclusion of the bargain: the ordinary case is, that the article is worth what it sells for. The total advantage of advantageous exchanges is more than equivalent to the total disadvantage of unfavourable bargains. The gains of commerce are greater than its losses, since the world is richer at present than in its savage state. Alienations ought, therefore, in general, to be maintained. But to annul alienations for accidental losses, would be to interdict alienations in general; for no person would buy—no person would sell—if the bargain might at any moment be made void in consequence of some subsequent event, which could neither be foreseen nor prevented.
7. There are some cases in which, foreseeing the evil of contracts, the legislature has prohibited them beforehand. Thus, in many countries, prodigals are interdicted; that is to say, all bargains made with them are declared invalid. But they begin by stating the danger, that is to say, the disposition which renders the prodigal unable to guide his affairs: every body is, or at least may be, informed of the imbecility with which he is struck, by the tutelary hand of justice.
Interdiction exists every where with regard to the two analogous cases of infancy and mental imbecility. I say analogous; for what an infant is for a time, which can be tolerably well determined, though by a demarcation always more or less arbitrary, a madman is for an indeterminate time, or for ever. The reasons are the same as in the preceding case. Minors and madmen are, by their condition, either ignorant, rash, or prodigal. They are presumed to be so, by a general indication, which does not require to be supported by particular proofs.
It will be easily seen, that in these three cases, the interdiction can only extend to things of a certain importance: to apply it to the trifling objects of daily consumption, would be to condemn these three classes to die by hunger.
8. The law also renders bargains invalid, on account of some probable inconvenience which may result from them.
I have an estate situated upon the confines of the state: acquired by a neighbouring power, it might become the focus of certain hostile intrigues, or favour dangerous preparations against my country: whether I think of this effect or not, the law ought to think of it for the public; it ought to prevent the evil, by refusing beforehand the guarantee of its seal to such bargains.*
The restraints which it has been thought necessary to put upon the sale of drugs capable of being employed as poisons, belong to this same head. It is the same with the prohibition of the sale of murderous weapons, such as stilettoes, of which such frequent use is made in Italy, in the most ordinary quarrels.
It is to the same motive, well or ill founded, that all prohibitions relative to the introduction or sale of certain kinds of merchandise must be referred.
In the greater number of cases, the custom is to say, that the bargain is null in itself. It is only to open the books of law to see how much nonsense has been written upon this erroneous notion, and into how much embarrassment lawyers have fallen, from not having seized the only cause of nullity, as respects bargains made under these circumstances, which is, that more evil than good results from them.
After saying that these conventions are null in themselves, to be consistent, it is necessary to conclude, that they ought not to have any effect—that they ought to be destroyed—that no trace should be left of them. In many cases, however, it is enough to modify them, to correct their inequalities by compensations, without altering the foundation of the primitive contract.
No bargain is void in itself—no bargain is valid of itself: it is the law which in each case gives or refuses validity. But for permitting or refusing, there ought to be reasons. Equivocal generation is banished from sound philosophy: some day, perhaps, it will be banished from jurisprudence. This null in itself is precisely an equivocal generation.
Of Obstacles to the Alienation of Land.
To say that the power of alienation is useful, is as much as to say that the arrangements which tend to destroy it are in general pernicious.
It is only with regard to immoveables that this inconsistency has been exercised, both by entails and unalienable foundations; and yet, besides the general reasons in favour of the power of alienation, there are particular reasons in favour of the power of alienating lands.
1. He who seeks to get rid of his lands, shows plainly that it does not suit him to keep them: he cannot or he will not employ any thing in improving them; often, indeed, he cannot restrain himself from lowering their future value, in order to satisfy a present want. On the contrary, he who seeks to acquire them has certainly not the intention of deteriorating them; and it is probable that he purposes to increase their value.
It is true, that the same capital which would be employed in the amelioration of land might be employed in trade; but though the benefit of these two employments might be the same for the individuals, it is not the same for the state. The portion of wealth applied to agriculture is more fixed;—that which is applied to trade is more fugitive. The first is immoveable; the second may be carried away at the will of the proprietor.
2. By pledging an immoveable, a productive capital may be procured: thus one part of the value of an estate may be employed in ameliorating another, which, without this resource, could not be done. To hinder the alienation of lands is, therefore, to diminish productive capital nearly to the amount of their selling value; since, in order that an article may serve as a pledge, it is necessary that it be capable of alienation.
It is true, that a loan only has been here contemplated: there is no new capital created by the transaction. This same capital might have received a destination not less useful in the hands in which it was first found; but it ought to be observed, that the greater the means of employing capital, the more it will flow towards the country: that which is derived from abroad, forms a clear addition to that which is derived from home.
These restraints upon alienation, though condemned by the soundest notions of political economy, subsist almost every where. It is true that they have gradually diminished, as governments have better understood the interests of agriculture and trade; but there are still three causes which operate for their maintenance:—
The first is the desire of preventing prodigality. But it is not necessary, for obviating this evil, to hinder the sale of lands: it is sufficient to protect their value by not leaving it at the disposal of the individual. In a word, the specific method against this inconvenience is interdiction.
The second is pride of family, connected with the agreeable illusion, which represents the successive existence of our descendants as a prolongation of our own. To leave them the same amount of wealth is not enough to satisfy the imagination: we wish to secure them the same lands, the same houses, the same natural objects. This continuity of possession appears as a continuity of enjoyment, and presents a point of support to a fanciful feeling.
The third cause is the love of power—the desire of governing after death. The preceding motive supposes posterity: this does not suppose it. It is to this cause must be referred, as well those foundations which have in view an object of utility, well or ill understood, as those which repose only upon fancies.
If the foundation consist only in the distribution of benefits, without imposing any condition—without exacting any service, it seems sufficiently innocent, and its continuance is not an evil. It is proper to except foundations for the distribution of alms, applied without discernment, and adapted only to the encouragement of mendicity and idleness. The best of these establishments are those of charity for the poor of a rank already a little elevated—a means which offers to these unfortunate persons a more liberal relief than the general rule would allow; whilst, as to the benefices which are only granted upon the discharge of certain duties, as in colleges, convents, churches, their tendency is useful, indifferent, or hurtful, according to the nature of the duties required.
One singularity which deserves to be observed is, that in general these foundations, these particular laws that individuals have established by the indulgence of the sovereign, have experienced more respect than the public laws which originate directly with the sovereign. When a legislator has desired to tie the hands of his successor, this pretension has appeared either inconsistent or futile. The most obscure individuals have arrogated this privilege, and none have dared to disappoint them.
It would seem, that lands left to corporations, to convents, churches, would be liable to be deteriorated. Indifferent as to his successors, each passing proprietor would seek to squeeze as much as possible out of the transitory possession, and neglect the care of them, especially in old age. This may sometimes have happened: justice ought, however, to be rendered to the religious communities. They have more often been distinguished for a good, than a bad economy. If their situation inflame their cupidity and avarice, it also represses pomp and prodigality: if there be causes which excite their selfishness, there are others which combat it, by what is called esprit de corps.
There is no necessity for expatiating with regard to public property; that is, with regard to things used by the public, such as roads, churches, markets. To fulfil their design, they ought to possess an indefinite duration, with the exception of their admitting those successive changes which circumstances may require.
ANOTHER MEANS OF ACQUISITION—SUCCESSION.
After the death of an individual, how ought his property to be disposed of?
The legislature should have three objects in view:—1st, To provide for the subsistence of the rising generation; 2dly, To prevent the pain of disappointment; 3dly, To promote the equalization of fortunes.
Man is not a solitary being. With few exceptions, every man is surrounded by a larger or smaller circle of companions, united to him by the ties of relationship, marriage, friendship, or services—who in fact share with him the enjoyment of the property which by right belongs exclusively to him. His fortune is commonly, with regard to many of them, the sole source of their subsistence. To prevent the calamities of which they would become the victims, if death, which deprives them of their friend, should also deprive them of the succour which they derive from his fortune, would require a knowledge of what they habitually enjoy, and in what proportion they participate in it. But as these are facts which it would be impossible to establish but by direct proofs—without entering upon embarrassing procedures and infinite disputes, it has been found necessary to refer to general presumptions, as the only base upon which a decision can be established. The habitual part of each survivor, in the possessions of the deceased, may be presumed from the degree of affection which ought to subsist between them; and this degree of affection may be presumed from the proximity of relationship.
If this proximity were the sole consideration, the law of successions would be very simple. In the first degree, with respect to you, are all those who are connected with you, without any intermediate person—your wife, your husband, your father, your mother, and your children. In the second degree, all those whose connexion with you requires the intervention of a single person, or a single couple of intermediate persons—your grandfathers and grandmothers, your brothers or sisters, and your grandchildren. In the third degree come those whose connexion supposes two intermediate generations—your great-grandfathers, your great-grandmothers, your great-grandchildren, your uncles and aunts, nephews and nieces.
But though this arrangement may possess every possible perfection on the side of simplicity and regularity, it would not well answer the political and moral object. It does not answer better to the degree of affection of which it might be thought to furnish a presumptive proof; and would not accomplish the principal object, which is to provide for the wants of the rising generations. Let us therefore leave this genealogical arrangement for the adoption of one founded upon utility. It consists in constantly giving to the descending line, however long, the preference to the ascending or collateral line—in giving the preference infinitely to the descendants of each parent, over all those who cannot be reached without taking another step in the ascending line.
It will happen, however, that the presumptions of affection or of necessity, which serve as the foundation of these rules, will often be defective in practice; and that consequently the rules themselvse will diverge from their object. But the power of making a will, as we shall see, offers an efficacious remedy to the imperfection of the general law; and this is the principal reason for preserving it.
Thus much for general principles. But how can they be applied in detail, when it is necessary to decide among a crowd of competitors?
The model of a law upon this subject, will supply the place of a multitude of discussions:
Article I. Let there be no distinction between the sexes. Let what is said with regard to the one, be understood with regard to the other. The portion of the one shall always be equal to the portion of the other.
Reason—Good of equality. If there be any difference, it ought to be in favour of the weakest—in favour of the females, who have more wants, fewer means of acquisition, and are less able to make use of the means they have. But the strongest have had all the preference. Why? Because the strongest have made the laws.
Article II. After the death of the husband, the widow shall keep a moiety of the common property, unless otherwise provided for by the marriage-contract.
Article III. The other moiety shall be distributed in equal portions among the children.
Reasons: 1. Equality of affection on the part of the father. 2. Equality of co-occupation on the part of the children. 3. Equality of wants. 4. Equality of all imaginable reasons on the one side and on the other.
Differences of age, temperament, talent, strength, &c. may produce some difference with respect to wants in point of fact; but it is not possible for the law to appreciate them: it is for the father to provide for them by means of his right of making a will.
Article IV. If a child die before its father, leaving children, his portion shall be distributed among them in equal portions; and so on for all their descendants to infinity.
Remarks.—The distribution by roots, instead of by branches, is preferred for two reasons:—1. In order to prevent the pain of disappointment. That the portion of the elder should be diminished by the birth of each younger child, is a natural event, by which expectation ought to regulate itself. However, in general, when one of the children begins to exercise its reproductive power, that of the father is generally nearly exhausted. At this period, the children ought to believe themselves arrived at the boundary of the diminutions that their respective portions ought to experience. But if each little grandson or little granddaughter produce a diminution equal to that produced by a son or daughter, the diminution would have no limits; there would be no certain grounds upon which to form a plan of life. 2. Grandchildren have for their immediate resource the property of their deceased father. Their custom of co-occupation detached from their grandfather has been exercised by preference, if not exclusively, upon the funds of paternal industry. It may be added, that they have, in the goods of their mother and of her parents, a resource in which the other children of their grandfather have no share.
Article V. If there be no descendants, the property shall go in common to the father and mother.
Remarks.—Why to the descendants before others?—1. Superiority of affection. Every other arrangement would be contrary to the paternal feelings. We love those better who depend upon us, than those upon whom we depend. It is more pleasant to govern than to obey. 2. Superiority of wants. It is certain that our children could not exist without us, or some one who should take our place. It is probable that our parents might exist without us, because they have existed before us.
Why should the succession pass to the father and mother, rather than to the brothers and sisters?—1. The relationship being more immediate, a superior affection is presumed. 2. It is a recompense for services rendered, or rather an indemnity for the pains and expenses of education. What forms the relationship between my brother and myself? Our common relation to the same father and the same mother. What renders him more dear to me than any other companion with whom I have passed an equal portion of my life? It is because he is more dear to those who have my first affections. It is not certain that I am indebted to him for any thing, but it is certain that I owe every thing to them. Hence, upon all occasions in which the stronger titles of my children do not intervene, I owe them those indemnities to which a brother cannot pretend.
Article VI. If either of the two be dead, the portion of the deceased shall go to his descendants, in the same manner as it would have gone to the proprietor’s own relations.
Remarks.—In poor families which only possess household furniture, it is more desirable that the whole should pass to the surviving father or mother, with the charge of providing for the support of the children. The expenses of the sale, and the dispersion of the property, would ruin the survivor, whilst the portions, too small to serve as a capital, would soon be dissipated.
Article VII. In default of such descendants, the property shall go entirely to the survivor.
Article VIII. If both be dead, the property shall be divided, as before directed, among their descendants.
Article IX. But in such manner, that theportion of the half blood shall only be the half of the portion of the whole blood, when there is any such.
Reason—Superiority of affection. Of the two bonds which attach me to my brother, there is only one which attaches me to my half brother.
Article X. In default of relations in the foregoing degrees, the property shall be applied to the revenue.
Article XI. But on condition of distributing the interest as an annuity among all the relations in the ascending line, in whatever degree, in equal portions.
Remarks.—This part of the law may either be established or not, according to the condition of the country with regard to taxes; but I have been unable to discover any solid objection against this fiscal resource.
The collateral relation who would be excluded, it may be said, may be in want; but this want is an incident too casual for the foundation of a general rule. They have for their natural resource the property of their respective ancestors; and they cannot have fixed their expectations or their plan of life upon this foundation.
On the side even of the uncle, the expectation of inheriting from a nephew can be but feeble, and a positive law would suffice to prevent its existence, or to extinguish it without violence. The uncle has not the titles of the father or grandfather. It is true, that in case of the death of these, the uncle may have taken their place, and filled the place of a father to his nephew. This is a circumstance which deserves the attention of the legislator. The power of leaving legacies may answer the end; but this means of obviating the inconveniences of the general law would be null in case the nephew should die before he became of age—before he had the faculty of making a will. If, therefore, it be desirable to soften this fiscal regulation, the first departure from the rule ought to be in favour of the uncle, either in relation to the principal or the interest.
Article XII. In making division among many heirs, the mass ought to be put up for public sale, saving the right to make any other arrangement, if they are agreed.
Remark.—This is the only method of preventing community of goods—an arrangement of which we have elsewhere shown the pernicious consequences. The goods of inheritance, which may possess a value in affection, will find their true price from the competition of the heirs, and will turn to the common advantage, without occasioning those disputes which produce durable animosities in families.
Article XIII. In arranging the sale and division, every thing shall be referred to the oldest male of full age, saving to the law to make other arrangements, for fear of misconduct, upon cause stated.
Remark.—Women in general are less apt in affairs of interest and embarrassment, than men. But a certain woman, in particular, may possess a superior aptitude, indicated by the general wish of the relations: she ought to obtain the preference.
Article XIV. In default of a male of full age, every thing should be referred to the guardian of the oldest male, saving the discretionary power given in the preceding article.
Article XV. The succession which falls to the revenue for want of natural heirs, shall in like manner be sold by public auction.
Remark.—Government is incapable of managing the greater portion of specific goods; their management costs too much; they yield little, and are liable to be destroyed. This is a truth which has been established almost to demonstration by Adam Smith.
It appears to me that this project of a law is simple, concise, easy to be understood; that it is little favourable to fraud, to diversity of interpretations; in short, that it is analogous to the affections of the human heart, to the habitual inclinations which arise from the social relations, and that consequently it is calculated to conciliate the approbation of those who judge from feeling, and the esteem of those who can appreciate reason.
Those who reproach this plan with being too simple, and discover, that at this price the law would no longer be a science, may find wherewith to satisfy, and even to astonish themselves, in the labyrinth of the English common law upon successions.
To give to foreigners an idea of these difficulties, it would be necessary to begin by a dictionary altogether new to them; since, when they should see the absurdities, the subtleties, the cruelties, the frauds, which abound in this system, they would imagine that they were reading a satire, and that it was intended to insult a nation, on other accounts so justly renowned for its wisdom.
On the other hand, it would be proper to show what has reduced this evil within sufficiently narrow limits: this is the right of making a will. It is only in successions upon intestacy, that it is necessary to pass through the tortuous routes of the common law. These wills may therefore be compared to the arbitrary pardons which correct the harshness of the penal laws.
1. The law cannot know individuals, nor accommodate itself to the diversity of their wants. All that can be required of it is, that it shall offer the best chance of supplying these wants. It remains for each proprietor, who may, and who ought to know the circumstances in which those who depend upon him will be placed after his death, to correct the imperfections of the law in those cases which it could not foresee. The power of making a will, is an instrument placed in the hands of individuals for the prevention of private calamity.
2. This same power may also be considered as an instrument of authority, confided to individuals, for the encouragement of virtue and the repression of vice in the bosom of families. The power of this instrument, it is true, may be turned in an opposite direction: happily these cases would always form the exceptions to the rule. The interest of each member of the family is, that the conduct of each should be conformable to virtue, that is to say, to general utility. Passion may produce accidental wanderings, but the law ought to regulate itself by the ordinary course of affairs. Virtue is the prevailing foundation of society: even vicious parents are found as jealous as others, of the honesty and reputation of their children. The man least scrupulous in his business would be in despair, if his secret conduct were known to his family: among these he never ceases to be the apostle of that honesty, of which he stands in need from those who serve him. In this respect, every proprietor may obtain the confidence of the law. Clothed with the power of making a will, which is a branch of penal and remuneratory legislation, he may be considered as a magistrate set over the little kingdom which is called a family, to preserve it in good order. This magistrate may do wrong, and it would even seem, that as he is not restrained in the exercise of his power, either by responsibility or publicity, he would be more liable to abuse it than any other magistrate: but this danger is more than counterbalanced by the bonds of interest and affection, which place his inclinations in accordance with his duties. His natural attachment to his children or his relations, is a pledge of his good conduct, which gives as much security as can be obtained for that of the political magistrate; so that, every thing considered, the authority of this non-commissioned magistrate, besides that it is absolutely necessary for minor children, will be more often found salutary than hurtful for adults themselves.
3. The power of making a will is advantageous under another aspect: it is a means of governing, under the character of master, not for the good of those who obey, as in the preceding article, but for the good of those who command. The power of the present generation is thus extended over a portion of the future, and the wealth of each proprietor is in some respect doubled. By means of an assignment upon a time when he shall be no more, he procures a multitude of advantages beyond what he actually possesses. By continuing beyond the term of their minority, the submission of children, the indemnity for parental cares is increased; an assurance is given to the parent against ingratitude; and though it would be more pleasant to think that such precautions were superfluous, yet, if we reflect upon the infirmities of old age, it will be perceived, that it is necessary to leave all these factitious attractions to serve as their counterpoise. In the rapid decline of life, it is proper to husband every resource; and it is not without advantage, that interest is made to act as the monitor of duty.
Ingratitude on the part of children, and contempt for old age, are not common vices in civilized societies; but it ought to be recollected, that, more or less, the power of making a will exists every where. Do these vices exist more frequently where this power is most limited? To decide this question, it would be necessary to observe what passes in the families of the poor, where there is little to leave: but still this ground of judgment would be defective, since the influence of this power, established in society by the laws, tends to form the general manners; and the general manners afterwards determine the sentiments of individuals. This power given to parents, renders parental authority more respectable, and the parent who, from his indigence, cannot exercise it, unwittingly profits by it, from the general habit of submission to which it has given birth.
However, in making the father a magistrate, it is proper to guard against making him a tyrant. If the children may do wrong, he may do wrong also; and though the power of punishing them may be given to him, it does not follow that he ought to be authorized to make them die of hunger. Thus the institution of what is called in France a legitime, is a suitable medium between domestic anarchy and tyranny. Even this legitime, parents ought to be allowed to take from their children, for causes determined by the law and judicially proved.
Another question presents itself: Shall a proprietor be allowed to leave his property to whom he pleases, whether distant relations or strangers, in default of natural heirs? In this case, the fiscal resource of which we spoke under the head of successions, would be much diminished; it would only exist in the case of intestates. Here the reasons of utility divide themselves: there is a medium to be taken.
On the one side, in default of relations, the services of strangers are necessary to a man, and his attachment to them is almost the same. It is necessary that he should be able to cultivate the hopes, and recompense the cares, of a faithful servant—to soften the regrets of the friend who has grown old by his side; without speaking of the female who has wanted only a ceremony in order to be called his widow, and of orphans who are his children in the eyes of every body except the legislator.
On the other hand, if to increase the inheritance of the public treasury you take from him the power of leaving to his friends, do you not force him to spend all upon himself? If his capital will be no longer at his disposal the moment he is dead, will he not be tempted to convert it into annuities upon his own life? will it not encourage his being a spendthrift, and almost operate as a law against economy?
These reasons are without doubt to be preferred to the interest of the revenue. It is necessary at least to leave to the proprietor who has no near relations, the right of disposing of the half of his property after his death, keeping the other half for the public. To be content in this case with the smaller share, would probably be a means of obtaining more. But it would be still better not to attack the principle which permits every one to dispose of his property after his death, and not to create a class of proprietors who should regard themselves as inferior to others, on account of this legal impotence which should have struck the half of their fortune.
All that has been said respecting alienations among the living may be properly applied to wills. Upon the greater number of points, we shall be instructed by their conformity, and in the others by the contrast.
The same causes of nullity which apply to alienations among the living, apply to wills; except that, in the case of undue concealment on the part of the receiver, there must be substituted erroneous supposition on the part of the testator. The following is an example:—I leave a certain property to Titius, who is married to my daughter, supposing this marriage legal, and ignorant of the dishonesty of Titius, who, before espousing my daughter, had contracted another marriage, which was still subsisting.
Wills are exposed to a sufficiently unfortunate dilemma. Shall their validity be permitted, when made upon the bed of death? They are then exposed to undue coercion and fraud. Shall formalities incompatible with this indulgence be required? Testators will then be liable to be deprived of assistance at the moment of their greatest need. Barbarous heirs may torment them, in order to hasten their death, or secure the advantage of a will passed in these forms. A dying person who has nothing to give or to take away is no longer to be feared. In order to reduce these opposite dangers to the lowest term, a multitude of details would be required.
OF RIGHTS RESPECTING SERVICES—MEANS OF ACQUIRING THEM.
Afterthings, it remains to distribute services: a kind of property sometimes confounded with things—sometimes presenting itself under a distinct form.
How many kinds of services are there? As many as there are ways in which man may be useful to man, either by procuring good for him, or by preserving him from evil.
In the exchange of services which constitutes social intercourse, some are free, some are forced. Those which are required by the law, constitute rights and obligations. I have a right to the services of another; he is in a state of obligation with regard to me: these two terms are correlative.
In their origin, all services must have been free: it is only by degrees that the laws have intervened to convert the more important into positive rights. It is thus that the institution of marriage has converted into legal obligations the connexion which formerly was voluntary between the husband and wife, between the father and the children. The law in the same manner has converted into an obligation, in certain states, the support of the poor, a duty which still remains amongst most nations in undefined liberty. These political duties are, with respect to duties purely social, the same as particular inclosures in a vast common, in which a certain kind of cultivation is tended with precautions which insure its success. The same plant might grow in the common, and even be protected by certain conventions; but it would always be subject to more hazards than in this particular boundary traced by the law, and guaranteed by the public force.
Still, whatever the legislator may do, there are a great number of services upon which he has no hold: he cannot direct them, because it is not possible to define them, and even because constraint would change their nature, and convert them into evils. For the punishment of their violation, such an apparatus of research and of punishments would be required, as would spread terror through society. Besides, the law does not know the real obstacles which prevent their being rendered: it cannot put into activity hidden forces; it cannot create that energy, that superabundance of zeal, which surmounts difficulties, and goes a thousand times farther than commands.
The imperfection of the law upon this point is corrected by a species of supplemental law; that is to say, by the moral or social code—a code which is not written—which consists altogether in opinion, in manners, customs—and which begins where the legislative code ends. The duties which it prescribes—the services it imposes, under the names of equity, patriotism, courage, humanity, generosity, honour, disinterestedness, do not directly borrow the assistance of the laws, but derive their strength from other sanctions which lend their punishments and rewards. As the duties of this secondary code do not bear the impress of the law, their discharge has more eclât—is more meritorious; and this surplus in honour happily compensates for their deficiency in real strength. After this digression respecting morals, let us return to legislation.
The kind of services which occupy the most prominent place consists in the disposal of property in favour of another.
The kind of property which acts the greatest part in civilized society is money, the almost universal representative standard. It is thus that the consideration of services often leads back into that of things.
There are some cases in which it is necessary to require the service for the advantage of him who commands it: such is the case of the master with relation to the servant.
There are some cases in which it is necessary to require the service for the advantage of him who obeys: such is the case of the guardian and ward. These two correlative states are the foundation of all others. The rights which belong to them are the elements of which all the other states are composed.
The father ought to be, in certain respects, the guardian—in others, the master of the child. The husband ought to be, in certain respects, the guardian—in others, the master of the wife.
These conditions are capable of a definite and indefinite duration, and form domestic society. The rights which it is proper should belong to them will be treated of separately. The public services of the magistrate and the citizen constitute other classes of obligations, the establishment of which belong to the constitutional code. But besides these constant relations, there are some transitory and occasional relations in which the law may require the services of an individual in favour of another.
The means of acquiring these services, or, in other words, the causes which determine the legislator to create these obligations, may be referred to three heads: 1. Superior need. 2. Former service. 3. Agreement or Contract. Let us consider these heads in detail.
That is to say, need of receiving the service, superior to the inconvenience of rendering it.
Every individual has for his constant occupation the care of his own welfare—an occupation no less legitimate than necessary: for suppose that it were possible to reverse this principle, and to give to the love of others a superiority over self-love, the results of this arrangement would be most ridiculous and disastrous. There are, however, many occasions, in which it is possible to make a considerable addition to the happiness of others, by a slight and almost imperceptible sacrifice of one’s own. To do, in certain circumstances, what depends upon us for preventing the evil ready to fall upon another, is a service which the law may require: and the omission of this service, in the cases in which the law has exacted it, would be a kind of offence which might be called a negative offence, in order to distinguish it from a positive offence, which consists in being one’s self the instrumental cause of an evil.
But to employ one’s efforts, however light they may be, may be an evil: to be constrained to employ them is certainly one, for all constraint is an evil. Hence, in order to exact from you some service in favour of me, the evil of not receiving it ought to be so great, and the evil of rendering it so small, that no one ought to fear to undergo the one, for the prevention of the other: there is no means of fixing the precise limits. Reference must be made to the circumstances of the parties interested, by leaving to the judge the care of pronouncing upon the cases of individuals as they present themselves.
The good Samaritan, by assisting the wounded traveller, saved his life. It was a noble action, a trait of virtue; we may say more, it was a moral duty. Ought it to have been made a political duty?—ought an action of this kind to be commanded by a general law? No; not, at least, unless tempered by exceptions more or less vague. It would be proper, for example, to establish a dispensation in this case in favour of a surgeon attending upon many wounded persons in extreme danger—or of an officer going to his post to repel the enemy—or of the father of a family going to the assistance of one of his children in danger.
This principle of superior need is the foundation of many obligations. The duties required of a father towards his children may be burthensome to him; but this evil is nothing, in comparison of the evil which would result from their neglect. The duty of defending the state may be still more burthensome; but if the state were not defended, it would not exist. When the taxes are not paid, the government is dissolved. When public functions are not discharged, the course is open for all kinds of misfortunes and all kinds of crimes.
It must be understood that the obligation of rendering the service falls upon a certain individual, in consequence of his particular situation, which gives him, more than any other one, the power or the inclination of discharging it. It is thus that a guardian for orphans is chosen from among their relations or friends, to whom this duty will be less burthensome than to a stranger.
Service rendered, in consideration of which there is required of him who received the benefit, an indemnity, an equivalent, in favour of him who has supported the burthen.
Here the object is more simple: it is only necessary to value a benefit already received, in order to assign an indemnification. Less latitude need be left to the discretion of the judge.
A surgeon has given his assistance to a sick person who had lost all feeling, and who was not in a condition to send for him. A depositary has employed his labour, or has made pecuniary advances necessary for the preservation of the deposit, without being required so to do. A man has exposed himself during a fire, to save valuable property, or to rescue persons in danger. The property of an individual has been thrown into the sea, to lighten the vessel and preserve the rest of the cargo. In all these cases, and in a thousand others which might be imagined, the laws ought to secure an indemnification as the price of the service.
This title is founded upon the best of reasons: Grant the indemnification; he who has supplied it will still be a gainer: refuse it, and you leave him who has rendered the service a loser.
This regulation would be less for the advantage of him who receives the indemnification, than for those who may stand in need of services: it would be a promise made beforehand, to every man who may have the opportunity of rendering a service burthensome to himself, for the purpose of preventing any opposition between his personal interest and his benevolence. Who shall say how many evils would be prevented by such a precaution? In how many cases has not prudence arrested the legitimate desires of benevolence? Would it not be wisdom on the part of the legislator, as much as possible to reconcile them? Ingratitude, it is said, was punished at Athens as a species of fraud which obstructed the communication of benefits, by weakening this kind of credit. I do not propose to punish, but to prevent it in many cases. If the man to whom you have rendered a service is ungrateful, it is of no consequence: the law, which does not reckon upon virtues, secures you an indemnity, and on essential occasions will make the indemnity rise to a reward.
Reward! this is the true means of obtaining services: in comparison with this, punishment is a feeble instrument. In order properly to punish the omission of a service, it is proper to be sure that the individual had the power of rendering it—that he had not an excuse for not rendering it. All this requires a difficult and doubtful procedure: besides, as it acts by means of the fear of punishment, that only will be done which is absolutely necessary for avoiding the punishment. But the hope of reward animates the hidden powers, triumphs over real obstacles, and gives birth to prodigies of zeal and ardour, in cases in which threats would have only produced repugnance and dejection.
In arranging the interest of the two parties, three precautions should be observed: first, to prevent a hypocritical generosity from converting itself into tyranny, and requiring the price of a service that would not have been received, if it had not been believed to be disinterested: the second is, not to allow a mercenary zeal to snatch a reward for services that might have been rendered by the party to himself, or obtained at a less expense: the third is, not to allow a man to be overwhelmed by a crowd of assistants, who can only be fully indemnified by exchanging for a loss all the advantage of the service.*
It is easily understood that former service forms a justifying base to many classes of obligations. It is upon this that the rights of parents over their children are founded: when, in the order of nature, the strength of adult age succeeds to the weakness of early years, the necessity of receiving ceases, and the duty of restitution begins. It is upon this that the rights of wives, during the period of the union, is equally founded, when time has effaced the attractions which were its first moving causes.
Establishments at the public expense for those who have served the state, repose upon the same principle. Reward for past services is an instrument for creating future services.
Agreement or Contract;
That is to say, the making a promise between two or more persons, upon the understanding that it is regarded as legally binding.
All that has been said relative to consent in the disposal of property, applies to consent in the disposal of services: The same reasons for sanctioning this disposal as for sanctioning the other—the same fundamental axiom—every alienation of service implies advantage: no one will bind himself except from a motive of utility.
The same reasons which annual consent in the one case, annul it in the other—undue concealment, fraud, coercion, subornation, erroneous supposition of legal obligation, erroneous supposition of value, interdiction, infancy, madness, pernicious tendency of the execution of the contract without fault of the contracting parties.*
We shall not dwell upon the following causes which produce the dissolution of a contract:—1. Accomplishment; 2. Compensation; 3. Express or tacit remission; 4. Lapse of time; 5. Physical impossibility; 6. Intervention of superior inconvenience. In all these cases, the reason which had sanctioned the service no longer exists; but the two last bear only upon the literal or specific accomplishment, and may leave occasion for an indemnity. If, in a reciprocal contract, one of the parties alone have performed his part, or if he have only done more than the other, compensation becomes necessary for the restoration of an equilibrium.
An exhibition of principles only, is here attempted, without attending to the details: arrangements must necessarily vary, to correspond with the diversity of circumstances. At all times, if a small number of rules are well understood, particular arrangements will not create much difficulty, and may be all directed by the same spirit. The following rules appear sufficiently simple, to allow their developments to be passed by:—
1. Avoid producing the pain of disappointment.
2. When a portion of this evil is inevitable, diminish it as much as possible, by dividing all loss among the parties interested, in proportion to their property.
3. Observe, in the distribution, to throw the greater part of the loss upon him who ought, by his attention, to have prevented the evil, in such manner as to punish his negligence.
4. Avoid especially the production of an accidental injury greater than the evil of the disappointment.
We have laid the foundation of the whole theory of obligations in utility: we have supported the whole of this vast edifice upon three principles: Superior Need, Former Service, Agreement or Contract. Who would believe that, to arrive at notions so simple, and even so familiar, it has been necessary to open a new route? Consult the masters of the science—Grotius, Puffendorf, Burlamqui, Vattel, even Montesquieu himself, Locke, Rousseau, and the crowd of commentators: do they wish to ascend to the principle of obligations? They speak of a natural right, of a law anterior to man, of the divine law, of conscience, of a social contract, of a tacit contract, &c. &c. I know that these terms are not incompatible with the true principle; because there is not one of them that may not be brought, by explanations more or less long, to signify some good or some evil. But this oblique and winding method announces uncertainty and embarrassment, and does not put an end to disputes.
They have not seen that a contract, speaking rigorously, is no reason in itself, and that it requires a foundation—a first and independent reason. A contract serves to prove the existence of the mutual advantage of the parties contracting. It is this reason of utility which gives it force: it is by this that the cases may be distinguished in which it ought to be confirmed, from those in which it ought to be annulled. If a contract constituted a reason in itself, it would always have the same effect; if its pernicious tendency render it void, it is then its useful tendency which renders it valid.
COMMUNITY OF GOODS—ITS INCONVENIENCES.
There is no arrangement more contrary to the principle of utility, than community of goods, especially that kind of indeterminate community in which the whole belongs to every one.
1. It is an inexhaustible source of discord: far from being a state of satisfaction and enjoyment, for all parties interested, it is one of discontent and disappointment.
2. This undivided property always loses a great part of its value to all the co-partners. Subject, on the one hand, to dilapidations of every kind, because it is not under the protection of personal interest; on the other hand, it receives no improvement. Why should I undertake an expense of which the burthen will be certain, and will fall altogether on myself, whilst the advantage will be precarious, and necessarily divided.
3. The apparent equality of this arrangement would only serve to hide a real inequality. The strongest would abuse his strength with impunity, the richest would enrich themselves at the expense of the poorest. Community of goods always recalls the idea of that kind of monster which is sometimes found to exist; that is, of twins attached by the back to one another—the stronger necessarily draws the weaker along.
Reference is not here made to the community of goods between husbands and wives: called to live together, to cultivate their own interests and those of their children together, they ought to enjoy together a fortune often acquired, and always preserved by their common cares. Besides, if their wills cross each other, the conflict will not be eternal, the law having confided to the man the right of decision.
Reference is also not made to this community between associates in commerce. This community has acquisition for its object, and does not extend to enjoyment. Now, when it refers to acquisition, the associates have only one and the same object, one and the same interest; when it refers to enjoyment and consumption, each becomes independent of the other: besides, the associates in commerce are few in number; they are freely chosen, and they can separate from each other. It is precisely otherwise in common property.
In England, one of the greatest and best understood improvements is the division of commons. When we pass over the lands which have undergone this happy change, we are enchanted as with the appearance of a new colony: harvests, flocks, and smiling habitations, have succeeded to the sadness and sterility of the desert. Happy conquests of peaceful industry! noble aggrandisements, which inspire no alarms and provoke no enemies! But who would believe it, that in this island, where agriculture is so well understood, and so much esteemed, that millions of acres of productive land are abandoned to this sad state of commonalty. It is not long since that the Government, desirous of knowing its territorial domains, has collected in each district all the facts which have made known this interesting truth, so well adapted to become fruitful.*
The inconveniences of community are not experienced in the case of servitudes; that is to say, in the partial rights of property exercised over immovables (as a right of way, or right of water,) except by accident. These rights are in general limited; the value lost by the land serving is not equal to the value acquired by the land served; or in other words, the inconvenience to the one is not so great as the advantage to the other.
In England, freehold land which is worth thirty years purchase, would not be worth more than twenty years purchase if it were copyhold. This arises from there being in the latter case a lord of the manor possessing certain rights, which establish a kind of community between him and the principal proprietor. But it must not be thought that what is lost by the vassal is gained by the lord: the greater part falls into the hands of the lawyers, and is consumed in useless formalities or vexatious triflings. These are remains of the feudal system.
“It is a beautiful sight,” says Montesquieu, of the feudal law; and he afterwards compares it to an old and majestic oak. We may the rather compare it to that fatal tree, the manchineel tree, whose juices are poisons to man, and whose shade is destructive to vegetation. This unfortunate system has infused into the laws confusion and complexity, from which it is difficult to deliver them. As it is every where interwoven with property, it requires much management to destroy the one without injuring the other.
OF DISTRIBUTION OF LOSS.
Things form one branch of the objects of acquisition: Services form another. After having treated of the different methods of acquiring and losing (ceasing to possess) these two classes of objects, the analogy between gain and loss seems to indicate, as an ulterior labour, the different methods of distributing the losses to which these possessions are liable. This task will not be very long. An article comes to be destroyed, damaged, lost? The loss is already experienced. Is the proprietor known? upon him the weight of this loss rests. Is he not known? no one bears it: it is, as to every body, as null, and as if it had not happened. Ought the loss to be transferred to any other than the proprietor? that is to say, in other words, is there due to him a satisfaction, either from one cause or another? This is a subject which will be discussed in the Penal Code.
A single particular case will here suffice, as an indication of the principles.
When the buyer and seller of merchandise are at a distance from each other, it must necessarily pass through a number, more or less, of intermediate hands. It may be carried by land or by water: the merchandise becomes destroyed, damaged, or lost: it does not reach its destination in the condition in which it ought to be: upon whom shall the loss fall? upon the seller or the buyer? I say upon the seller, saving his recourse against the intermediate agents. He may by his care contribute to the security of the merchandise: it is for him to choose the moment and the manner of sending it, to take the necessary precautions: on him depends the proof. All this ought to be more easy to the merchant who sells, than to the particular individual who buys: whilst, as to him, it is only by accident that his cares can contribute in any manner to bring about the desired event.—Reason, Superior preventive faculty. Principle, Security.
Particular situations may indicate the necessity of departing from this general rule, by corresponding dispositions. For a much stronger reason, individuals may depart from it themselves, by agreements made among themselves. Indication can here only be made of the principles: their application would be out of place.
[* ]See this word Title, in the Essay entitled “A general view of a body of law.” This subject is only glanced at here.
[* ]Thus much for the theory: as to execution, it would require many details, otherwise this conversion would resemble the division of the new world which the Pope made between the Spaniards and Portuguese. The waters quit a bay: there are many proprietors upon its borders. Shall the distribution be regulated by the quantity of land belonging to each proprietor, or by the extent which he occupies along its sides? Lines of demarcation are necessary; but it is not necessary to wait to trace these lines till the event happens, and the value of the derelict lands is known; for all will then entertain hopes which can be realized only by some individuals. Before this period, expectation not being yet formed, easily follows the finger of the legislator.
[* ]See the chapter Of Collative and Ablative Events with regard to Property. The explanation of the word Title will be found there. I have here avoided reference to questions of method and nomenclature.
[* ]The greater number of states, without perhaps thinking of it, have obviated this danger by a general law which interdicts the acquisition of landed property by strangers. But they have gone too far. The reason of this prohibition does not extend beyond the particular case which I have mentioned. The foreigner who wishes to buy an immoveable in my country, gives the least equivocal proof of his affection for it, and the most certain pledge of his good conduct. The state can only gain in this case, even under the simple head of finance.
[* ]This may be applied to the situation of a King re-established on the throne of his ancestors, as Henry IV. or Charles II., at the expense of his faithful servants—an unfortunate situation, in which discontent is still increased, unless the kingdom itself, reconquered by their efforts, be distributed among them in detail.
[* ]It is to this head that the English law may be referred, which declares every marriage void, contracted by persons of the royal family without the consent of the king.
[* ]There may be some circumstances not included in ordinary rules: the citizens of the smaller Swiss Cantons, for example, possess in common the greater portion of their lands, that is to say, the High Alps. It is possible that this arrangement may alone be suitable for pastures which are only accessible for part of the year. It is possible that this manner of holding their lands forms the base of a purely democratic constitution, suited to a people shut up in the bosom of their mountains.