Principles of the Civil Code

Jeremy Bentham

Part 2

Chapter 6

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.

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