Front Page Titles (by Subject) CHAPTER X.: PROBLEM VII. To facilitate the Discovery of Offences committed. - The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law)
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CHAPTER X.: PROBLEM VII. To facilitate the Discovery of Offences committed. - 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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In penal matters, the judge must be acquainted with two things before he can exercise his office: the fact of the offence, and the person of the offender. These two things being known, his knowledge is complete. According to the difference of cases, obscurity spreads itself over these two points in different proportions. Sometimes it is greatest upon the first, sometimes upon the second. We shall treat, in the following articles, of what relates to the fact of the offence, and of the means by which its discovery may be facilitated.
Require written Title-Deeds.
It is only by writing, that evidence can be rendered permanent and authentic. Verbal transactions, at least when not of the simplest kind, are subject to interminable disputes. Litera scripta manet. Mahomet himself has recommended his followers to observe this precaution. It is almost the only passage of the Koran which has a grain of common sense. (Chapter of the Cow.)
Cause the Names of the Witnesses to be attested upon the head of Title-Deeds.
It is one thing to require that there should be witnesses to the execution of a deed: it is another point to require that their presence be notified, attested, enregistered at the head of the deed. A third circumstance is, to add to it those circumstances by which the witnesses, if necessary, may be easily found.
In the attestation of deeds, it would be useful to observe the following precautions:—
1. Prefer a great number of witnesses to a small number. This diminishes the danger of prevarication, and increases the chance of finding them, if necessary. 2. Prefer married to single persons; heads of families to servants; persons of public character to individuals less distinguished; young men in the flower of their age to old and infirm persons; persons who are known, to those who are unknown. 3. When a deed is composed of many sheets or pieces, each piece ought to be signed by the witnesses. If there be corrections or erasures, a list of these should be made and attested; the lines ought to be counted, and the number in each page indicated. 4. Each witness should add to his Christian and surname, if it be required, his quality, his residence, his age, his condition, whether single or married. 5. The time and place of the execution of the deed should be minutely specified; the time not only by the day, the month, the year, but also by the hour; the place by the district, the parish, even by the house, and by the name of him who occupies it at the time. This circumstance is an excellent preservative against forgery. A man will fear to embark in such an enterprise, when it is necessary to be acquainted with so many details before he affixes a supposititious date to a deed; and if he do attempt it, it will be more easily discovered. 6. Numbers ought to be written in words at length, especially dates and sums; except in matters of account, in which case it is sufficient to state the total in words at length; except also when the same date or the same sum frequently recurs in the same deed. The reason of this precaution is, that figures, if they are not very carefully written, are liable to be taken the one for the other; and besides that, they are easily altered, and the slightest alteration may have considerable effects: 100 is easily converted into 1000. 7. The forms to be observed in the execution of a deed ought to be printed upon the margin of the sheets of paper or parchment on which it is written.
Ought these forms to be left to the discretion of individuals as a means of security required by prudence, or ought they to be rendered obligatory? Some ought to be made obligatory; others ought not. As to those which ought to be made obligatory, it will be proper to allow the judges latitude, that they may distinguish the cases in which it was not possible to attend to them. It may be that a deed has been executed in a place where the prescribed paper could not be obtained; where a sufficient number of witnesses could not be found, &c. The deed might be provisionally declared valid, until it had been possible to attend to the forms required.
Greater latitude ought to be allowed in wills, than in deeds between living parties. Death waits neither for lawyers nor witnesses, and men are accustomed to defer making them to a time when they have neither leisure nor time to correct and review. On the other hand, these sorts of deeds are those which require the most precaution, because they are most subject to imposture. In the case of a deed between living parties, the party to whom it may be wished to attribute an engagement may chance to be living to contradict it. In the case of a will, this chance no longer exists.
It would require many details to point out the points to be established and the exceptions to be made. I only observe, that great latitude must be left; that no formality can be found so simple, that its omission ought to render a deed absolutely invalid.
When such instructions as these shall have been published by government, even without being rendered necessary, every body will seek to observe them, because each one will seek, in a deed honestly executed, to obtain for himself all possible security. The omission of these forms, therefore, would form a strong ground of suspicion of fraud, unless such omission could clearly be attributed to the ignorance of the parties, or to circumstances which rendered such omission unavoidable.
Institute Registers for the Preservation of Titles.
Why ought deeds to be registered? What deeds ought to be registered? Ought the registers to be secret or public? Ought registration to be optional, or ought its omission to be liable to punishment?
Registers would be useful as guards—1st, against the fabrication of forged deeds; 2d, against forgery by falsification; 3d, against accidents—the loss or destruction of the original; 4th, against double alienation of the same property to different persons.
For the first and last of these objects, a simple memorial would be sufficient; for the second, an exact copy would be required; for the third, an extract would be sufficient, but a copy would be better.
Against forgery by fabrication, registration would only be useful if it were obligatory; nullity in cases of omission, with latitude for accidental cases. The advantage which would result is, that after the period for registration was expired, the fabrication of a deed which, according to its apparent date, ought to be registered, would fail of itself. The period in which a fraud of this kind could be committed with probability of success would be limited to a short space, and that so near a time to that of the supposed deed, that the proofs of fraud could scarcely be wanting.
It would also be necessary that registration should be obligatory under pain of nullity, if it be designed to prevent double alienations, such as mortgages or marriage contracts. Without this obligatory clause, registration would scarcely take place, because neither party would have any interest in it. He who alienates, has even a contrary interest: an honest man may dislike to have it known that he has sold or mortgaged his property; a rogue would desire the power of receiving its value twice over.
Wills are the kind of deeds most liable to be fabricated. The most certain protection against a fraud of this nature is to require their registration, under pain of nullity, during the life of the testator. It may be objected, that this would make him dependent on the mercy of those who surround him in his last moments, since he would no longer be able to reward or punish them; but this inconvenience might be obviated by allowing a testator to dispose of a tenth of his property by a codicil.
What deeds ought to be registered? All those in which a third person is interested, and whose importance is sufficiently great to justify this precaution.
Of what deeds ought the registration to be secret? and of what public?
Deeds between living persons, in which third persons are interested—mortgages, marriage-contracts, ought to be public. Wills, during the life of the testator, ought to be inviolably secret. Promissory deeds, apprentice indentures, marriage-contracts which do not bind landed property, might be kept secret, reserving the right of communicating them to persons who could present a special title to examine them.
The office ought then to be divided into secret and public departments, free or obligatory. Free registrations would be frequent, if the charge were moderate. Prudence directs the preservation of copies against accidents; but where could copies be better preserved than in a depot of this kind?
The necessity of registering deeds by which territorial property is charged, by way of mortgage, would be a species of restraint upon prodigality. A man could hardly, without some degree of shame, borrow upon his possessions to spend in pleasure. This consideration, which ought to operate in favour of this measure, has been urged as an objection against it, and has prevented its establishment.
The jurisprudence of many countries has adopted more or less of this mode of registration. That of France appears to have hit the happy medium.
In England, the law varies. In Middlesex and the county of York, register-offices were established in the reign of Queen Anne, whose principal object has been to prevent double alienations; and the good effects have been such, that the value of land is higher in these two counties than elsewhere.
Ireland enjoys this benefit, but registration is left to the free choice of individuals. It has been established in Scotland: wills ought there to be registered before the death. In the county of Middlesex, registration is only obligatory after the death of the testator.
Method of preventing Forged Deeds.
There is one expedient which might have place as a species of registration. A particular kind of paper or parchment should be required for the deed in question: those who sold it by retail should be prohibited from selling it without indorsing the day and year of the sale, and the names of the seller and buyer. The distribution of this kind of paper might be limited to a certain number of persons, of whom a list should be kept. Their books being required to be correct registers, should, after their death, be deposited in an office. This precaution would hinder the fabrication of all kinds of deeds pretending to a distant date.
It would be a further restraint if the paper ought to be of the same date with the deed itself. The date of the paper might be marked in the paper itself, in the same manner as the maker’s name. In this case, no forged deed could be made without the concurrence of a paper-maker.
Institute Registers for Events which serve to establish Titles.
Much need not be said upon the evident necessity of proving births and burials. Prohibition to inter the dead, without the previous inspection of some officer of police, is a general precaution against assassination. It is singular, that, in England, marriages, instead of being by writing, were for a long time left to the simple notoriety of a transitory ceremony. The only reason which can be given for it, is the simplicity of this contract, which is the same for all, except in particular arrangements relative to fortunes.
Happily, under the reign of William III., these events, which serve as the foundation of so many titles, presented themselves as suitable objects for taxation; they were required to be registered. The tax has been suppressed, but the advantage remains.
Even at the present time, the security given to the rights which depend upon these events is neither so certain nor so universal as it ought to be. There exists only one copy: the register of each parish ought to be transcribed in a more general office. In the marriage-act under George II., the advantage of this regulation is refused to Quakers and Jews, either from intolerance or inadvertency.
Put the People on their guard against different Offences.
Give instructions with regard to the different poisonous substances, the methods of detecting them, and their antidotes. If such instructions were indiscriminately spread among the multitude, they might do more hurt than good. This is one of those cases in which knowledge is more dangerous than useful. The methods of employing poison are more certain than the means of cure. The suitable medium lies in limiting the circulation of these instructions to the class of persons who can make a good use of them, whilst their situation, their character, and their education, would be guarantees against their abuse. Such are the parochial clergy, and medical practitioners: with this view, the instructions might be in Latin, which these parties are reputed to understand.
But as to the knowledge of those poisons which present themselves without being sought, and which ignorance may innocently administer, this ought to be rendered as familiar as possible. There must be a strange deprivation in the character of a nation, if hemlock, which is so easily confounded with parsley, and verdigris, which so speedily collects in copper vessels when the tinning is worn off, were not more often administered by mistake than by design. In this case, there is more to be hoped for than feared from the communication of knowledge, how dangerous soever it may be.
Against False Weights and Measures.
Give instructions as to false weights, false measures, false standards of quality, and the methods of deception which may be used when just weights and measures are employed. To this head would be referred scales with unequal arms, measures with double bottoms, &c. Knowledge on these subjects cannot be too widely extended. Every shop should have such instructions openly exhibited, as a proof that there is no wish to deceive.
Against Frauds with respect to Money.
Give instructions showing how good may be distinguished from bad money. If a particular kind of false coin appear, government ought to give notice of this circumstance in a particular manner. At Vienna, the mint does not fail to notify the kinds of counterfeits it discovers; but the coinage is upon so good a footing, that attempts of this kind are rare.
Against Cheating at Play.
Give instructions with regard to false dice, as to methods of cheating in dealing cards, by making signs to associates, by having accomplices among the spectators, &c. These instructions might be suspended in all places of public resort, and presented in such a manner as to put youth upon its guard, and to exhibit vice as both ridiculous and hateful. It would be proper also to offer a reward to those who detect the artifices of sharpers, in proportion as they invent new schemes.
Against the Impostures of Beggars.
Some, though in perfect health, counterfeit sickness; others cause a slight wound to assume the most disgusting appearances; others relate false histories of shipwrecks and fires; others borrow or steal children, that they may employ them as instruments, of their trade. It would be proper to accompany the instructions respecting these artifices with an advertisement, for fear that the knowledge of so many impostures should harden the heart, and render it indifferent to real misery. In a country under a well regulated police, an individual who presents himself under so unfortunate an aspect ought neither to be neglected nor left to himself: the duty of the first person who meets him should be to consign him to the hands of public charity. Instructions of this kind would form homilies for the people, more amusing than controversial discourses.
6. Against Theft, Cheating, and other means of obtaining Money under false pretences.
Give instructions which should develope all the methods employed by thieves and cheats. There are many books upon this subject, of which the materials have been furnished by penitent malefactors, in the hopes of deserving pardon. These compilations are generally very bad, but useful extracts might be taken from them. One of the best is, The Discoveries and Revelations of Poulter, otherwise Baxter, which passed through sixteen editions in the space of twenty-six years. This shows how wide a circulation an authentic book of this kind, published and recommended by government, would have. The tone which might be given to these works would make them excellent lessons in morality, as well as books of amusement.*
Against Religious Impostures.
Give instructions with regard to crimes committed by means of superstitions, relating to the malice of spiritual agents. These crimes are too numerous; but they are a light matter, in comparison with the legal persecutions which have taken their rise in the same errors. There is scarcely a Christian nation which has not to reproach itself with bloody tragedies occasioned by a belief in sorcery.
The histories of the first class would furnish an instructive subject for homilies, which might be read in the churches; but there is no need to give a sad publicity to the second. The suffrages of so many respectable and upright judges, who have been the miserable dupes of this superstition, would rather serve to confirm the populace in their error, than to cure them.
The English statutes were the first which had the honour of expressly rejecting from the penal code the pretended crime of sorcery. In the Code Theresa, though compiled in 1773, it occupies a considerable space.
Publish the price of Merchandise, in opposition to Mercantile Extortion.
If the exaction of an exorbitant price cannot properly be treated as an offence, and subjected to punishment, it may at least be looked upon as an evil, which it would be advantageous to suppress, if it could be done without causing greater evils.
Direct punishments being inadmissible, indirect methods must be employed. Happily, this is a species of offence of which the evil is diminished, rather than increased, by the number of offenders. What should the law do? increase their number as much as possible. Is an article sold too dear? is the profit gained by it exorbitant? spread this information: the dealers in it will assemble from all quarters, and by the effect of their competition alone, will lower the price.
Usury may be ranked under the head of mercantile extortion. To lend money, is to sell present money for future money: the time of payment may be either determinate or indeterminate; dependent, or not, upon certain events; the amount returnable all at once, or by instalments, &c. Prohibit usury: by rendering the transaction secret, you increase the price.
Publish an Account of Official Rights.
Almost everywhere, certain rights are annexed to the services of government offices: these rights form part of the pay of the persons employed. As an artisan sells his manufacture, a public officer sells his labour as dear as possible. Competition, the facility of going to another market, retains this disposition within due bounds as respects ordinary labour; but by the establishment of an office, all competition is taken away; the right to sell this particular kind of service becomes a monopoly in the hands of the person employed.
Leave the price to the discretion of the seller, and there will be no other limits than those prescribed by the wants of the buyer. The rights of officers ought therefore to be exactly determined by law, otherwise the extortion which may take place, ought to be imputed to the negligence of the legislator, rather than the rapacity of the person employed.
Publish all Accounts in which the Nation is interested.
When accounts are rendered in a limited time, before a limited number of auditors, and these auditors, perhaps chosen or influenced by the accountant himself, and no one is afterwards called upon to controul them, the greatest errors may be passed without being perceived, or without being noticed; but when accounts are published, there can be no want of witnesses, nor commentators, nor judges.
Each item is examined. Was this article necessary? did it arise from want, or was it suggested for the purpose of creating expense? Is not the public more dearly served than individuals? has not a preference been given to a contractor at the public expense? Has not a secret advantage been given to a favourite? has nothing been granted to him upon false pretences? Have no manœuvres been practised to prevent competition? Is there nothing concealed in the accounts? There are a hundred questions of the same kind, upon which it is impossible to secure complete explanations, if accounts are not rendered public. In a particular committee, some may want integrity, others knowledge; a mind slow in its operations will pass over what it does not understand, for fear of discovering its inaptitude; a lively spirit will not trouble itself with details; each will leave to others the fatigue of examination. But every thing which is wanting in a small body, will be found in the assembled public: in this heterogeneous and discordant mass, the worst principles will lead to the desired end, as well as the best; envy, hatred, malice, will assume the mask of public spirit; and these passions, because they are more active and persevering, will scrutinize all the parties better, and make even a more scrupulous examination. Hence those who have no other restraint than the desire of human applause, will be retained in the discharge of their duty by the pride of integrity and the fear of shame.
In seeking for exceptions, I have only found two: the first regards the expenses of this publication; the other regards the nature of those services which ought to remain secret. It might be useless to publish the accounts of a small parish, because the books are accessible to all who are interested in their examination; and the publication of the sums destined to secret service, could only be thought of, under the pain of losing all the information you might otherwise obtain respecting the designs of your enemies.
Establish Standards of Quantity, Weights, and Measures.
Weights indicate the quantity of matter; measures, the quantity of space. Their utility consists—first, in satisfying each individual as to the quantity of any thing which he wants; secondly, in terminating disputes; thirdly, in preventing frauds.
To establish uniformity in the same state has been the object of many sovereigns. To find a common and universal measure for all people, has been the object of research with many philosophers, and latterly of the French Government—a service truly honourable, since there is hardly any thing more rare and noble, than to see a government labouring upon one of the essential bases of union among mankind.
Uniformity of weights and measures, under the same government, and among a people who, in other respects, have the same language, is a point upon which it would seem that there is no need of much reasoning to show its utility. A measure of which an individual does not know the contents, is useless. If the measures of two towns are not the same, either in name or quantity, the trade between the individuals cannot but be exposed to great mistakes or great difficulties. These two places, in this respect, are strangers one to another. If the nominal price of the goods measured be the same, and the measures are different, the real price is different: continual attention is requisite, and distrust mingles with the course of affairs; errors glide into honest transactions, and fraud hides itself under deceptive denominations.
For the introduction of uniformity, there are two methods:—The first, to make standards, which should have public authority; to send them into every district, and to forbid the use of every other: the second, to make standards, and leave to general convenience the case of their adoption. The first method has been employed in England; the second was practised with success by the Archduke Leopold, in Tuscany.
When a public standard has been provided, a punishment may be imposed upon those who make weights and measures not in conformity to the standards; and then all bargains, which have not been made according to these standards, might be declared null and void. But this last measure would hardly be necessary; the two former would be sufficient.
In different nations, the want of uniformity in this respect cannot produce so many mistakes—the difference of language alone, putting every one upon their guard. Much embarrassment, however, results from it to commerce; and fraud, favoured by mystery, may often avail itself of the ignorance of purchasers.
An inconvenience of less extent, but which is not less important, is felt in medicine. If the weights are not exactly the same, especially with regard to substances of which small quantities are important, the pharmacopœia of one country can with difficulty be employed in another, and may lead to fatal errors. It is also a considerable obstacle to the free communication of the sciences; and the same inconvenience is found in relation to those arts, in which success depends upon the most delicate proportions.
Establish Standards of Quality.
It would require many details to state all that government would have to do, in order to establish the most suitable criteria of the quality and value of a multitude of objects which are susceptible of different proofs. The touchstone is an imperfect proof of the quality and value of metallic compositions mingled with gold and silver: the hydrometer is an unfailing proof, in so far as identity of quality results from the identity of specific gravity.
The adulterations most important to be known, are those which are hurtful to health; such as the mixture of chalk and burnt bones with flour, in the making of bread; the use of lead in taking off the acidity of wine, or of arsenic in refining it. Chemistry presents the means of discovering all these adulterations; but knowledge is required for their application.
The intervention of government in this regard, may be limited to three points:—1st, The encouragement of the discovery of the means of proof, in those cases in which they are still wanting; 2d, The dissemination of this knowledge among the people; 3d, The prescription of their use by officers appointed for the purpose.
Institute Stamps or Marks, to attest the Quantity or Quality of Articles which ought to be made according to a certain Standard.
Such marks are declarations or certificates in an abridged form. There are five points to be considered in these documents: 1st, Their end; 2d, The person whose attestation they bear; 3d, The extent and the details of the information they contain; 4th, The visibility, the intelligibility of the mark; 5th, Its permanence, its indestructibility.
The utility of authentic attestations is not doubtful. They are successfully employed for the following objects:—
1. To secure the rights of property. It may be left to the prudence of individuals to use this precaution in what concerns them; but with respect to public property, and objects in deposit, the employment of such marks ought to be regulated by law. It is thus that, in England, stores for the use of the royal navy bear a particular mark, which it is unlawful to employ in the merchant service. In the royal arsenals, an arrow is marked upon the timber used in building; a white thread runs through the cordage, which private persons are forbidden to use.
2. To secure the quality or quantity of commercial articles for the benefit of purchasers. Thus, by statute law in England, marks are placed upon many articles; upon blocks of wood exposed to sale, upon leather, bread, pewter, plate, money, woollen goods, stockings, &c.
3. To secure the payment of taxes. If the article liable to the tax has not the mark in question, it is a proof that the tax has not been paid. The examples are numberless.*
4. To secure obedience to the laws which prohibit importation.
[* ]The most ancient work which I know upon this subject, is entitled Clavell’s Recantation. The second edition is dated 1628. It is in verse. Clavell was a man of family, who became a highwayman: he obtained a pardon. It is said in the title-page, that the book was published at the express order of the king (Charles I.) One of the more modern is entitled, A View of Society and Manners in High and Low Life, by Parker.
[* ]Chocolate, tea, hops, letters, newspapers, cards, almanacks, hackney-coaches, &c.