Chapter XVI (Sections 1-2)

DIVISION OF OFFENCES^*1

§1. Classes of Offences.

I. It is necessary, at the outset, to make a distinction between such acts as are or may be, and such as ought to be offences.

Any act may be an offence, which they whom the community are in the habit of obeying shall be pleased to make one: that is, any act which they shall be pleased to prohibit or to punish. But, upon the principle of utility, such acts alone ought to be made offences, as the good of the community requires should be made so.

II. The good of the community cannot require, that any act should be made an offence, which is not liable. in some way or other, to be detrimental to the community. For in the case of such an act, all punishment is groundless.^*2

III. But if the whole assemblage of any number of individuals be considered as constituting an imaginary compound body, a community or political state; any act that is detrimental to any one or more of those members is, as to so much of its effects, detrimental to the state.

IV. An act cannot be detrimental to a state, but by being detrimental to some one or more of the individuals that compose it. But these individuals may either be assignable^*3 or unassignable.

V. When there is any assignable individual to whom an offence is detrimental, that person may either be a person other than the offender, or the offender himself.

VI. Offences that are detrimental, in the first instance, to assignable persons other than the offender, may be termed by one common name, offences against individuals. And of these may be composed the 1st class of offences. To contrast them with offences of the 2nd and 4th classes, it may also sometimes be convenient to style them private offences. To contrast them at the same time with offences of the 3rd class, they may be styled private extra-regarding offences.

VII. When it appears, in general, that there are persons to whom the act in question may be detrimental, but such persons cannot be individually assigned, the circle within which it appears that they may be found, is either of less extent than that which comprises the whole community, or not. If of less, the persons comprised within this lesser circle may be considered for this purpose as composing a body of themselves; comprised within, but distinguishable from, the greater body of the whole community. The circumstance that constitutes the union between the members of this lesser body, may be either their residence within a particular place, or, in short, any other less explicit principle of union, which may serve to distinguish them from the remaining members of the community. In the first case, the act may be styled an offence against a neighbourhood: in the second, an offence against a particular class of persons in the community. Offenses, then, against a class or neighbourhood, may, together, constitute the 2nd class of offences.^*4 To contrast them with private offences on the one hand, and public on the other, they may also be styled semi-public offences.

VIII. Offences, which in the first instance are detrimental to the offender himself, and to no one else, unless it be by their being detrimental to himself, may serve to compose a third class. To contrast them the better with offences of the first, second, and fourth classes, all which are of a transitive nature, they might be styled intransitive^*5 offences; but still better, self-regarding.

IX. The fourth class may be composed of such acts as ought to be made offences, on account of the distant mischief which they threaten to bring upon an unassignable indefinite multitude of the whole number of individuals, of which the community is composed: although no particular individual should appear more likely to be a sufferer by them than another. These may be called public offences, or offences against the state.

X. A fifth class, or appendix, may be composed of such acts as, according to the circumstances in which they are committed, or and more particularly according to the purposes to which they are applied, may be detrimental in any one of the ways in which the act of one man can be detrimental to another. These may to be termed multiform, or heterogeneous^*6 offences. Offences that are in this case may be reduced to two great heads: 1. Offences by falsehood: and 2. Offenses against trust.

§ 2. Divisions and sub-divisions.

XI. Let us see by what method these classes may be farther subdivided. First, then, with regard to offences against individuals.

In the present period of existence, a man's being and wellbeing, his happiness and his security; in a word, his pleasures and his immunity from pains, are all dependent, more or less, in the first place, upon his own person; in the next place, upon the exterior objects that surround him. These objects are either things, or other persons. Under one or other of these classes must evidently be comprised every sort of exterior object, by means of which his interest can be affected. If then, by means of any offence, a man should on any occasion become a sufferer, it must be in one or other of two ways: 1. absolutely, to wit, immediately in his own person; in which case the offence may be said to be an offence against his person: or, 2. relatively, by reason of some material relation^*7 which the before mentioned exterior objects may happen to bear, in the way of causality (see ch. vii. Actions, par. 24) to his happiness. Now in as far as a man is in a way to derive either happiness or security from any object which belongs to the class of things, such thing is said to be his property, or at least he is said to have a property or an interest therein: an offence, therefore, which tends to lessen the facility he might otherwise have of deriving happiness or security from an object which belongs to the class of things may be styled an offence against his property. With regard to persons, in as far as, from objects of this class, a man is in a way to derive happiness or security, it is in virtue of their services: in virtue of some services, which, by one sort of inducement or another, they may be disposed to render him.^*8 Now, then, take any man, by way of example, and the disposition, whatever it may be, which he may be in to render you service, either has no other connection to give birth or support to it, than the general one which binds him to the whole species, or it has some other connection more particular. In the latter case, such a connection may be spoken of as constituting, in your favour, a kind of fictitious or incorporeal object of property, which is styled your condition. An offence, therefore, the tendency of which is to lessen the facility you might otherwise have of deriving happiness from the services of a person thus specially connected with you, may be styled an offence against your condition in life, or simply against your condition. Conditions in life must evidently be as various as the relations by which they are constituted. This will be seen more particularly farther on. In the mean time those of husband, wife, parent, child, master, servant, citizen of such or such a city, natural-born subject of such or such a country, may answer the purpose of examples.

Where there is no such particular connection, or (what comes to the same thing) where the disposition, whatever it may be, which a man is in to render you service, is not considered as depending upon such connection, but simply upon the good-will he bears to you; in such case, in order to express what chance you have of deriving a benefit from his services, a kind of fictitious object of property is spoken of, as being constituted in your favour, and is called your reputation. An offence, therefore, the tendency of which is to lessen the facility you might otherwise have had of deriving happiness or security from the services of persons at large, whether connected with you or not by any special tie, may be styled an offence against your reputation. It appears, therefore, that if by any offence an individual becomes a sufferer, it must be in one or other of the four points above mentioned; viz. his person, his property, his condition in life, or his reputation. These sources of distinction, then, may serve to form so many subordinate divisions. If any offences should be found to affect a person in more than one of these points at the same time, such offences may respectively be put under so many separate divisions; and such compound divisions may be subjoined to the preceding simple ones. The several divisions (simple and compound together) which are hereinafter established, stand as follows: 1. Offenses against person. 2. Offenses against reputation. 3. Offenses against property. 4. Offenses against condition. 5. Offenses against person and property together. 6. Offenses against person and reputation together.^*9

XII. Next with regard to semi-public offences. Pain, considered with reference to the time of the act from which it is liable to issue, must, it is evident, be either present, past, or future. In as far as it is either present or past, it cannot be the result of any act which comes under the description of a semi-public offence: for if it be present or past, the individuals who experience, or who have experienced, it are assignable.^*10 There remains that sort of mischief, which, if it ever come to exist at all, is as yet but future: mischief, thus circumstanced, takes the name of danger.^*11 Now, then, when by means of the act of any person a whole neighbourhood, or other class of persons, are exposed to danger, this danger must either be intentional on his part, or unintentional.^*12 If unintentional, such danger, when it is converted into actual mischief, takes the name of a calamity: offences, productive of such danger, may be styled semi-public offences operating through calamity; or, more briefly, offences through calamity. If the danger be intentional, insomuch that it might be produced, and might convert itself into actual mischief, without the concurrence of any calamity, it may be said to originate in mere delinquency: offences, then, which, without the concurrence of any calamity, tend to produce such danger as disturbs the security of a local, or other subordinate class of persons, may be styled semi-public offences operating merely by delinquency, or more briefly, offences of mere delinquency.

XIII. With regard to any farther sub-divisions, offences through calamity will depend upon the nature of the several calamities to which man, and the several things that are of use to him, stand exposed. These will be considered in another place.^*13

XIV. Semi-public offences of mere delinquency will follow the method of division applied to offences against individuals. It will easily be conceived, that whatever pain or inconvenience any given individual may be made to suffer, to the danger of that pain or inconvenience may any number of individuals, assignable or not assignable, be exposed. Now there are four points or articles, as we have seen, in respect to which an individual may be made to suffer pain or inconvenience. If then, with respect to any one of them, the connection of causes and effects is such, that to the danger of suffering in that article a number of persons, who individually are not assignable, may, by the delinquency of one person, be exposed, such article will form a ground of distinction on which a particular sub-division of semi-public offences may be established: if, with respect to any such article, no such effect can take place, that ground of distinction will lie for the present unoccupied: ready, however, upon any change of circumstances, or in the manner of viewing the subject, to receive a correspondent subdivision of offences, if ever it should seem necessary that any such offences should be created.

XV. We come next to self-regarding offences; or, more properly, to acts productive in the first instance of no other than a self-regarding mischief: acts which, if in any instance it be thought fit to constitute them offences, will come under the denomination of offences against one's self. This class will not for the present give us much trouble. For it is evident, that in whatever points a man is vulnerable by the hand of another, in the same points may he be conceived to be vulnerable by his own. Whatever divisions therefore will serve for the first class, the same will serve for this. As to the questions, What acts are productive of a mischief of this stamp? and, among such as are, which it may, and which it may not, be worth while^*14 to treat upon the footing of offences? these are points, the latter of which at least is too unsettled, and too open to controversy, to be laid down with that degree of confidence which is implied in the exhibition of properties which are made use of as the groundwork of an arrangement. Properties for this purpose ought to be such as show themselves at first glance, and appear to belong to the subject beyond dispute.

XVI. Public offences may be distributed under eleven divisions.^*15 1. Offences against external security. 2. Offences against justice. 3. Offences against the preventive branch of the police. 4. Offences against the public force. 5. Offences against the positive increase of the national felicity. 6. Offences against the public wealth. 7. Offences against population. 8. Offences against the national wealth. 9. Offences against the sovereignty. 10. Offences against religion. 11. Offences against the national interest in general. The way in which these several sorts of offences connect with one another, and with the interest of the public, that is, of an unassignable multitude of the individuals of which that body is composed, may be thus conceived.

XVII. Mischief by which the interest of the public as above defined may be affected, must, if produced at all, be produced either by means of an influence exerted on the operations of government, or by other means, without the exertion of such influence.^*16 To begin with the latter case: mischief, be it what it will, and let it happen to whom it will, must be produced either by the unassisted powers of the agent in question, or by the instrumentality of some other agents. In the latter case, these agents will be either persons or things. Persons again must be either not members of the community in question, or members. Mischief produced by the instrumentality of persons, may accordingly be produced by the instrumentality either of external or of internal adversaries. Now when it is produced by the agent's own unassisted powers, or by the instrumentality of internal adversaries, or only by the instrumentality of things, it is seldom that it can show itself in any other shape (setting aside any influence it may exert on the operations of government) than either that of an offence against assignable individuals, or that of an offence against a local or other subordinate class of persons. If there should be a way in which mischief can be produced, by any of these means, to individuals altogether unassignable, it will scarcely be found conspicuous or important enough to occupy a title by itself: it may accordingly be referred to the miscellaneous head of offences against the national interest in general.^*17 The only mischief, of any considerable account, which can be made to impend indiscriminately over the whole number of members in the community, is that complex kind of mischief which results from a state of war, and is produced by the instrumentality of external adversaries; by their being provoked, for instance, or invited, or encouraged to invasion. In this way may a man very well bring down a mischief, and that a very heavy one, upon the whole community in general, and that without taking a part in any of the injuries which came in consequence to be offered to particular individuals.

Next with regard to the mischief which an offence may bring upon the public by its influence on the operations of the government. This it may occasion either, 1. In a more immediate way, by its influence on those operations themselves: 2. In a more remote way, by its influence on the instruments by or by the help of which those operations should be performed: or 3. In a more remote way still, by its influence on the sources from whence such instruments are to be derived. First then, as to the operations of government, the tendency of these, in as far as it is conformable to what on the principle of utility it ought to be, is in every case either to avert mischief from the community, or to make an addition to the sum of positive good.^*18 Now mischief, we have seen, must come either from external adversaries, from internal adversaries, or from calamities. With regard to mischief from external adversaries, there requires no further division. As to mischief from internal adversaries, the expedients employed for averting it may be distinguished into such as may be applied before the discovery of any mischievous design in particular, and such as cannot be employed but in consequence of the discovery of some such design: the former of these are commonly referred to a branch which may be styled the preventive branch of the police: the latter to that of justice.^*19 Secondly, As to the instruments which government, whether in the averting of evil or in the producing of positive good, can have to work with, these must be either persons or things. Those which are destined to the particular function of guarding against mischief from adversaries in general, but more particularly from external adversaries,^*20 may be distinguished from the rest under the collective appellation of the public military force, and, for conciseness' sake, the military force. The rest may be characterised by the collective appellation of the public wealth. Thirdly, with regard to the sources or funds from whence these instruments, howsoever applied, must be derived, such of them as come under the denomination of persons must be taken out of the whole number of persons that are in the community, that is, out of the total population of the state: so that the greater the population, the greater may cęteris paribus be this branch of the public wealth; and the less, the less. In like manner, such as come under the denomination of things may be, and most of them commonly are, taken out of the sum total of those things which are the separate properties of the several members of the community: the sum of which properties may be termed the national wealth:^*21 so that the greater the national wealth, the greater cęteris paribus may be this remaining branch of the public wealth; and the less, the less. It is here to be observed, that if the influence exerted on any occasion by any individual over the operations of the government be pernicious, it must be in one or other of two ways: 1. By causing, or tending to cause, operations not to be performed which ought to be performed; in other words, by impeding the operations of government. Or, 2. By causing operations to be performed which ought not to be performed; in other words, by misdirecting them. Lastly, to the total assemblage of the persons by whom the several political operations above mentioned come to be performed, we set out with applying the collective appellation of the government. Among these persons there commonly^*22 is some one person, or body of persons whose office it is to assign and distribute to the rest their several departments, to determine the conduct to be pursued by each in the performance of the particular set of operations that belongs to him, and even upon occasion to exercise his function in his stead. Where there is any such person, or body of persons, he or it may, according as the turn of the phrase requires, be termed the sovereign, or the sovereignty. Now it is evident, that to impede or misdirect the operations of the sovereign, as here described, may be to impede or misdirect the operations of the several departments of government as described above.

From this analysis, by which the connection between the several above-mentioned heads of offences is exhibited, we may now collect a definition for each article. By offences against external security, we may understand such offences whereof the tendency is to bring upon the public a mischief resulting from the hostilities of foreign adversaries. By offences against justice, such offences whereof the tendency is to impede or misdirect the operations of that power which is employed in the business of guarding the public against the mischiefs resulting from the delinquency of internal adversaries, as far as it is to be done by expedients, which do not come to be applied in any case till after the discovery of some particular design of the sort of those which they are calculated to prevent. By offences against the preventive branch of the police, such offences whereof the tendency is to impede or misdirect the operations of that power which is employed in guarding against mischiefs resulting from the delinquency of internal adversaries, by expedients that come to be applied beforehand; or of that which is employed in guarding against the mischiefs that might be occasioned by physical calamities. By offences against the public force, such offences whereof the tendency is to impede or misdirect the operations of that power which is destined to guard the public from the mischiefs which may result from the hostility of foreign adversaries, and, in case of necessity, in the capacity of ministers of justice, from mischiefs of the number of those which result from the delinquency of internal adversaries.

By offences against the increase of the national felicity, such offences whereof the tendency is to impede or misapply the operations of those powers that are employed in the conducting of various establishments, which are calculated to make, in so many different ways, a positive addition to the stock of public happiness. By offences against the public wealth, such offences whereof the tendency is to diminish the amount or misdirect the application of the money, and other articles of wealth, which the government reserves as a fund, out of which the stock of instruments employed in the service above mentioned may be kept up. By offences against population, such offences whereof the tendency is to diminish the numbers or impair the political value of the sum total of the members of the community. By offences against the national wealth, such offences whereof the tendency is to diminish the quantity, or impair the value, of the things which compose the separate properties or estates of the several members of the community.

XVIII. In this deduction, it may be asked, what place is left for religion? This we shall see presently. For combating the various kinds of offences above enumerated, that is, for combating all the offences (those not excepted which we are now about considering) which it is in man's nature to commit, the state has two great engines, punishment and reward: punishment, to be applied to all, and upon all ordinary occasions: reward, to be applied to a few, for particular purposes, and upon extraordinary occasions. But whether or no a man has done the act which renders him an object meet for punishment or reward, the eyes of those, whosoever they be, to whom the management of these engines is entrusted cannot always see, nor, where it is punishment that is to be administered, can their hands be always sure to reach him. To supply these deficiencies in point of power, it is thought necessary, or at least useful (without which the truth of the doctrine would be nothing to the purpose), to inculcate into the minds of the people the belief of the existence of a power applicable to the same purposes, and not liable to the same deficiencies: the power of a supreme invisible being, to whom a disposition of contributing to the same ends to which the several institutions already mentioned are calculated to contribute, must for this purpose be ascribed. It is of course expected that this power will, at one time or other, be employed in the promoting of those ends: and to keep up and strengthen this expectation among men, is spoken of as being the employment of a kind of allegorical personage, feigned, as before,^*23 for convenience of discourse, and styled religion. To diminish, then, or misapply the influence of religion, is pro tanto to diminish or misapply what power the state has of combating with effect any of the before-enumerated kinds of offences; that is, all kinds of offences whatsoever. Acts that appear to have this tendency may be styled offences against religion. Of these then may be composed the tenth division of the class of offences against the state.^*24

XIX. If there be any acts which appear liable to affect the state in any one or more of the above ways, by operating in prejudice of the external security of the state, or of its internal security; of the public force; of the increase of the national felicity; of the public wealth; of the national population; of the national wealth; of the sovereignty; or of religion; at the same time that it is not clear in which of all these ways they will affect it most, nor but that, according to contingencies, they may affect it in one of these ways only or in another; such acts may be collected together under a miscellaneous division by themselves, and styled offences against the national interest in general. Of these then may be composed the eleventh and last division of the class of offences against the state.

XX. We come now to class the fifth: consisting of multiform offences. These, as has been already intimated, are either offences by falsehood, or offences concerning trust. Under the head of offences by falsehood, may be comprehended, 1. Simple falsehoods. 2. Forgery. 3. Personation. 4. Perjury.^*25 Let us observe in what particulars these four kinds of falsehood agree, and in what they differ.

XXI. Offences by falsehood, however diversified in other particulars, have this in common, that they consist in some abuse of the faculty of discourse, or rather, as we shall see hereafter, of the faculty of influencing the sentiment of belief in other men,^*26 whether by discourse or otherwise. The use of discourse is to influence belief, and that in such manner as to give other men to understand that things are as they are really. Falsehoods, of whatever kind they be, agree in this: that they give men to understand that things are otherwise than as in reality they are.

XXII. Personation, forgery, and perjury, are each of them distinguished from other modes of uttering falsehood by certain special circumstances. When a falsehood is not accompanied by any of those circumstanees, it may be styled simple falsehood. These circumstances are, 1. The form in which the falsehood is uttered. 2. The circumstance of its relating or not to the identity of the person of him who utters it. 3. The solemnity of the occasion on which it is uttered.^*27 The particular application of these distinctive characters may more commodiously be reserved for another place.^*28

XXIII. We come now to the sub-divisions of offences by falsehood. These will bring us back into the regular track of analysis, pursued, without deviation, through the four preceding classes.

By whatever means a mischief is brought about, whether falsehood be or be not of the number, the individuals liable to be affected by it must either be assignable or unassignable. If assignable, there are but four material articles in respect to which they can be affected: to wit, their persons, their properties, their reputations, and their conditions in life. The case is the same, if, though unassignable, they are comprisable in any class subordinate to that which is composed of the whole number of members of the state. If the falsehood tend to the detriment of the whole state, it can only be by operating in one or other of the characters, which every act that is an offence against the state must assume; viz. that of an offence against external security, against justice, against the preventive branch of the police, against the public force, against the increase of the national felicity, against the public wealth, against the national population, against the national wealth, against the sovereignty of the state, or against its religion.

XXIV. It is the common property, then, of the offences that belong to this division, to run over the same ground that is occupied by those of the preceding classes. But some of them, as we shall see, are apt, on various occasions, to drop or change the names which bring them under this division: this is chiefly the case with regard to simple falsehoods. Others retain their names unchanged; and even thereby supersede the names which would otherwise belong to the offences which they denominate: this is chiefly the case with regard to personation, forgery, and perjury. When this circumstance then, the circumstance of falsehood, intervenes, in some cases the name which takes the lead is that which indicates the offence by its effect; in other cases, it is that which indicates the expedient or instrument as it were by the help of which the offence is committed. Falsehood, take it by itself, consider it as not being accompanied by any other material circumstances, nor therefore productive of any material effects, can never, upon the principle of utility, constitute any offence at all. Combined with other circumstances, there is scarce any sort of pernicious effect which it may not be instrumental in producing. It is therefore rather in compliance with the laws of language, than in consideration of the nature of the things themselves, that falsehoods are made separate mention of under the name and in the character of distinct offences. All this would appear plain enough, if it were now a time for entering into particulars: but that is what cannot be done, consistently with any principle of order or convenience, until the inferior divisions of those other classes shall have been previously exhibited.

XXV. We come now to offences against trust. A trust is, where there is any particular act which one party, in the exercise of some power, or some right,^*29 which is conferred on him, is bound to perform for the benefit of another. Or, more fully, thus: A party is said to be invested with a trust, when, being invested with a power, or with a right, there is a certain behaviour which, in the exercise of that power, or of that right, he is bound to maintain for the benefit of some other party. In such case, the party first mentioned is styled a trustee: for the other party, no name has ever yet been found: for want of a name, there seems to be no other resource than to give a new and more extensive sense to the word beneficiary, or to say at length the party to be benefited.^*30

The trustee is also said to have a trust conferred or imposed upon him, to be invested with a trust, to have had a trust given him to execute, to perform, to discharge, or to fulfil. The party to be benefited, is said to have a trust established or created in his favour: and so on through a variety of other phrases.

XXVI. Now it may occur, that a trust is oftentimes spoken of as a species of condition:^*31 that a trust is also spoken of as a species of property: and that a condition itself is also spoken of same light. It may be thought, therefore, that in the first class, the division of offences against condition should have been included under that of the offences against property: and that at any rate, so much of the fifth class now before us as contains offences against trust, should have been included under one or other of those two divisions of the first class. But upon examination it will appear, that no one of these divisions could with convenience, nor even perhaps with propriety, have been included under either of the other two. It will appear at the same time, that there is an intimate connection subsisting amongst them all: insomuch that of the lists of the offences to which they are respectively exposed, any one may serve in great measure as a model for any other. There are certain offences to which all trusts as such are exposed: to all these offences every sort of condition will be found exposed: at the same time that particular species of the offences against trust will, upon their application to particular conditions, receive different particular denominations. It will appear also, that of the two groups of offences into which the list of those against trust will be found naturally to divide itself, there is one, and but one, to which property, taken in its proper and more confined sense, stands exposed: and that these, in their application to the subject of property, will be found susceptible of distinct modifications, to which the usage of language, and the occasion there is for distinguishing them in point of treatment, make it necessary to find names.

In the first place, as there are, or at least may be (as we shall see) conditions which are not trusts,^*32 so there are trusts of which the idea would not be readily and naturally understood to be included under the word condition: add to which, that of those conditions which do include a trust, the greater number include other ingredients along with it: so that the idea of a condition, if on the one hand it stretches beyond the idea of a trust, does on the other hand fall short of it. Of the several sorts of trusts, by far the most important are those in which it is the public that stands in the relation of beneficiary. Now these trusts, it should seem, would hardly present themselves at first view upon the mention of the word condition. At any rate, what is more material, the most important of the offences against these kinds of trust would not seem to be included under the denomination of offences against condition. The offences which by this latter appellation would be brought to view, would be such only as seemed to affect the interests of an individual: of him, for example, who is considered as being invested with that condition. But in offences against public trust, it is the influence they have on the interests of the public that constitutes by much the most material part of their pernicious tendency: the influence they have on the interests of any individual, the only part of their influence which would be readily brought to view by the appellation of offences against condition, is comparatively as nothing. The word trust directs the attention at once to the interests of that party for whom the person in question is trustee: which party, upon the addition of the epithet public, is immediately understood to be the body composed of the whole assemblage, or an indefinite portion of the whole assemblage of the members of the state. The idea presented by the words public trust is clear and unambiguous: it is but an obscure and ambiguous garb that that idea could be expressed in by the words public condition. It appears, therefore, that the principal part of the offences, included under the denomination of offences against trust, could not, commodiously at least, have been included under the head of offences against condition.

It is evident enough, that for the same reasons neither could they have been included under the head of offences against property. It would have appeared preposterous, and would have argued a total inattention to the leading principle of the whole work, the principle of utility, to have taken the most mischievous and alarming part of the offences to which the public stands exposed, and forced them into the list of offences against the property of an individual: of that individual, to wit, who in that case would be considered as having in him the property of that public trust, which by the offences in question is affected.

Nor would it have been less improper to have included conditions, all of them, under the head of property: and thereby the whole catalogue of offences against condition, under the catalogue of offences against property. True it is, that there are offences against condition, which perhaps with equal propriety, and without any change in their nature, might be considered in the light of offences against property: so extensive and so vague are the ideas that are wont to be annexed to both these objects. But there are other offences which though with unquestionable propriety they might be referred to the head of offences against condition, could not, without the utmost violence done to language, be forced under the appellation of offences against property. Property, considered with respect to the proprietor, implies invariably a benefit, and nothing else: whatever obligations or burthens may, by accident, stand annexed to it, yet in itself it can never be otherwise than beneficial. On the part of the proprietor, it is created not by any commands that are laid on him, but by his being left free to do with such or such an article as he likes. The obligations it is created by, are in every instance laid upon other people. On the other hand, as to conditions, there are several which are of a mixed nature, importing as well a burthen to him who stands invested with them as a benefit: which indeed is the case with those conditions which we hear most of under that name, and which make the greatest figure.

There are even conditions which import nothing but burthen, without any spark of benefit. Accordingly, when between two parties there is such a relation, that one of them stands in the place of an object of property with respect to the other; the word property is applied only on one side; but the word condition is applied alike to both: it is but one of them that is said on that account to be possessed of property; but both of them are alike spoken of as being possessed of or being invested with a condition: it is the master alone that is considered as possessing a property, of which the servant, in virtue of the services he is bound to render, is the object: but the servant, not less than the master, is spoken of as possessing or being invested with a condition.

The case is, that if a man's condition is ever spoken of as constituting an article of his property, it is in the same loose and indefinite sense of the word in which almost every other offence that could be imagined might be reckoned into the list of offences against property. If the language indeed were in every instance, in which it made use of the phrase, object of property, perspicuous enough to point out under that appellation the material and really existent body, the person or the thing in which those acts terminate, by the performance of which the property is said to be enjoyed; if, in short, in the import given to the phrase object of property, it made no other use of it than the putting it to signify what is now called a corporeal object, this difficulty and this confusion would not have occurred. But the import of the phrase object of property, and in consequence the import of the word property, has been made to take a much wider range. In almost every case in which the law does any thing for a man's benefit or advantage, men are apt to speak of it, on some occasion or other, as conferring on him a sort of property. At the same time, for one reason or other, it has in several cases been not practicable, or not agreeable, to bring to view, under the appellation of the object of his property, the thing in which the acts, by the performance of which the property is said to be enjoyed, have their termination, or the person in whom they have their commencement. Yet something which could be spoken of under that appellation was absolutely requisite.^*33 The expedient then has been to create, as it were, on every occasion, an ideal being, and to assign to a man this ideal being for the object of his property: and these are the sort of objects to which men of science, in taking a view of the operations of the law in this behalf, came, in process of time, to give the name of incorporeal. Now of these incorporeal objects of property the variety is prodigious. Fictitious entities of this kind have been fabricated almost out of every thing: not conditions only (that of a trustee included), but even reputation have been of the number. Even liberty has been considered in this same point of view: and though on so many occasions it is contrasted with property, yet on other occasions, being reckoned into the catalogue of possessions, it seems to have been considered as a branch of property. Some of these applications of the words property, object of property (the last, for instance), are looked upon, indeed, as more figurative, and less proper than the rest: but since the truth is, that where the immediate object is incorporeal, they are all of them improper, it is scarce practicable any where to draw the line.

Notwithstanding all this latitude, yet, among the relations in virtue of which you are said to be possessed of a condition, there is one at least which can scarcely, by the most forced construction, be said to render any other man, or any other thing, the object of your property. This is the right of persevering in a certain course of action; for instance, in the exercising of a certain trade. Now to confer on you this right, in a certain degree at least, the law has nothing more to do than barely to abstain from forbidding you to exercise it. Were it to go farther, and, for the sake of enabling you to exercise your trade to the greater advantage, prohibit others from exercising the like, then, indeed, persons might be found, who in a certain sense, and by a construction rather forced than otherwise, might be spoken of as being the objects of your property: viz. by being made to render you that sort of negative service which consists in the forbearing to do those acts which would lessen the profits of your trade. But the ordinary right of exercising any such trade or profession, as is not the object of a monopoly, imports no such thing; and yet, by possessing this right, a man is said to possess a condition: and by forfeiting it, to forfeit his condition.

After all, it will be seen, that there must be cases in which, according to the usage of language, the same offence may, with more or less appearance of propriety, be referred to the head of offences against condition, or that of offences against property, indifferently. In such cases the following rule may serve for drawing the line. Wherever, in virtue of your possessing a property, or being the object of a property possessed by another, you are characterised, according to the usage of language, by a particular name, such as master, servant, husband, wife, steward, agent, attorney, or the like, there the word condition may be employed in exclusion of the word property: and an offence in which, in virtue of your bearing such relation, you are concerned, either in the capacity of an offender, or in that of a party injured, may be referred to the head of offences against condition, and not to that of offences against property. To give an example: Being bound, in the capacity of land steward to a certain person, to oversee the repairing of a certain bridge, you forbear to do so: in this case, as the services you are bound to render are of the number of those which give occasion to the party, from whom they are due, to be spoken of under a certain generical name, viz. that of land steward, the offence of withholding them may be referred to the class of offences against condition. But suppose that, without being engaged in that general and miscellaneous course of service, which with reference to a particular person would denominate you his land steward, you were bound, whether by usage or by contract, to render him that single sort of service which consists in the providing, by yourself or by others, for the repairing of that bridge: in this case, as there is not any such current denomination to which, in virtue of your being bound to render this service, you stand aggregated (for that of architect, mason, or the like, is not here in question), the offence you commit by withholding such service cannot with propriety be referred to the class of offences against condition: it can only therefore be referred to the class of offences against property.

By way of further distinction, it may be remarked, that where a man, in virtue of his being bound to render, or of others being bound to render him, certain services, is spoken of as possessing a condition, the assemblage of services is generally so considerable, in point of duration, as to constitute a course of considerable length, so as on a variety of occasions to come to be varied and repeated: and in most cases, when the condition is not of a domestic nature, sometimes for the benefit of one person, sometimes for that of another. Services which come to be rendered to a particular person on a particular occasion, especially if they be of short duration, have seldom the effect of occasioning either party to be spoken of as being invested with a condition. The particular occasional services which one man may come, by contract or otherwise, to be bound to render to another, are innumerably various: but the number of conditions which have names may be counted, and are, comparatively, but few.

If after all, notwithstanding the rule here given for separating conditions from articles of property, any object should present itself which should appear to be referable, with equal propriety, to either head, the inconvenience would not be material; since in such cases, as will be seen a little farther on, whichever appellation were adopted, the list of the offences, to which the object stands exposed, would be substantially the same.

These difficulties being cleared up, we now proceed to exhibit an analytical view of the several possible offences against trust.

XXVII. Offences against trust may be distinguished, in the first place, into such as concern the existence of the trust in the hands of such or such a person, and such as concern the exercise of the functions that belong to it.^*34 First then, with regard to such as relate to its existence. An offence of this description, like one of any other description, if an offence it ought to be, must to some person or other import a prejudice. This prejudice may be distinguished into two branches: 1. That which may fall on such persons as are or should be invested with the trust: 2. That which may fall on the persons for whose sake it is or should be instituted, or on other persons at large. To begin with the former of these branches. Let any trust be conceived. The consequences which it is in the nature of it to be productive of to the possessor, must, in as far as they are material,^*35 be either of an advantageous or of a disadvantageous nature: in as far as they are advantageous, the trust may be considered as a benefit or privilege: in as far as they are disadvantageous, it may be considered as a burthen.^*36 To consider it then upon the footing of a benefit. The trust either is of the number of those which ought by law to subsist;^*37 that is, which the legislator meant should be established; or is not. If it is, the possession which at any time you may be deprived of, with respect to it, must at that time be either present or to come: if to come (in which case it may be regarded either as certain or as contingent), the investitive event, or event from whence your possession of it should have taken its commencement, was either an event in the production of which the will of the offender should have been instrumental, or any other event at large: in the former case, the offence may be termed wrongful non-investment of trust: in the latter case, wrongful interception of trust.^*38 If at the time of the offence whereby you are deprived of it, you were already in possession of it, the offence may be styled wrongful divestment of trust. In any of these cases, the effect of the offence is either to put somebody else into the trust, or not: if not, it is wrongful divestment, wrongful interception, or wrongful divestment, and nothing more: if it be, the person put in possession is either the wrong-doer himself, in which case it may be styled usurpation of trust; or some other person, in which case it may be styled wrongful investment, or attribution, of trust. If the trust in question is not of the number of those which ought to subsist, it depends upon the manner in which one man deprives another of it, whether such deprivation shall or shall not be an offence, and, accordingly, whether non-investment, interception, or divestment, shall or shall not be wrongful. But the putting any body into it must at any rate be an offence: and this offence may be either usurpation or wrongful investment, as before.

In the next place, to consider it upon the footing of a burthen. In this point of view, if no other interest than that of the persons liable to be invested with it were considered, it is what ought not, upon the principle of utility, to subsist: if it ought, it can only be for the sake of the persons in whose favour it is established. If then it ought not on any account to subsist, neither non-investment, interception, nor divestment, can be wrongful with relation to the persons first mentioned, whatever they may be on any other account, in respect of the manner in which they happen to be performed: for usurpation, though not likely to be committed, there is the same room as before: so likewise is there for wrongful investment; which, in as far as the trust is considered as a burthen, may be styled wrongful imposition of trust. If the trust, being still of the burthensome kind, is of the number of those which ought to subsist, any offence that can be committed, with relation to the existence of it, must consist either in causing a person to be in possession of it, who ought not to be, or in causing a person not to be in possession of it who ought to be: in the former case, it must be either usurpation or wrongful divestment, as before: in the latter case, the person who is caused to be not in possession, is either the wrong-doer himself, or some other: if the wrong-doer himself, either at the time of the offence he was in possession of it, or he was not: if he was, it may be termed wrongful abdication of trust; if not, wrongful detrectation^*39 or non-assumption: if the person, whom the offence causes not to be in the trust, is any other person, the offence must be either wrongful divestment, wrongful non-investment, or wrongful interception, as before: in any of which cases to consider the trust in the light of a burthen, it might also be styled wrongful exemption from trust.

Lastly, with regard to the prejudice which the persons for whose benefit the trust is instituted, or any other persons whose interests may come to be affected by its existing or not existing in such or such hands, are liable to sustain. Upon examination it will appear, that by every sort of offence whereby the persons who are or should be in possession of it are liable, in that respect, to sustain a prejudice, the persons now in question are also liable to sustain a prejudice. The prejudice, in this case, is evidently of a very different nature from what it was of in the other: but the same general names will be applicable in this case as in that. If the beneficiaries, or persons whose interests are at stake upon the exercise of the trust, or any of them, are liable to sustain a prejudice, resulting from the quality of the person by whom it may be filled, such prejudice must result from the one or the other of two causes: 1. From a person's having the possession of it who ought not to have it: or 2. From a person's not having it who ought: whether it be a benefit or burthen to the possessor, is a circumstance that to this purpose makes no difference. In the first of these cases the offences from which the prejudice takes its rise are those of usurpation of trust, wrongful attribution of trust, and wrongful imposition of trust: in the latter, wrongful non-investment of trust, wrongful interception of trust, wrongful divestment of trust, wrongful abdication of trust, and wrongful detrectation of trust.

So much for the offences which concern the existence or possession of a trust: those which concern the exercise of the functions that belong to it may be thus conceived. You are in possession of a trust: the time then for your acting in it must, on any given occasion, (neglecting, for simplicity's sake, the then present instant) be either past or yet to come. If past, your conduct on that occasion must have been either conformable to the purposes for which the trust was instituted, or unconformable: if conformable, there has been no mischief in the case: if unconformable, the fault has been either in yourself alone, or in some other person, or in both: in as far as it has lain in yourself, it has consisted either in your not doing something which you ought to do, in which case it may be styled negative breach of trust; or in your doing something which you ought not to do: if in the doing something which you ought not to do, the party to whom the prejudice has accrued is either the same for whose benefit the trust was instituted, or some other party at large: in the former of these cases, the offence may be styled positive breach of trust; in the other, abuse of trust.^*40 In as far as the fault lies in another person, the offence on his part may be styled disturbance of trust. Supposing the time for your acting in the trust to be yet to come, the effect of any act which tends to render your conduct unconformable to the purposes of the trust, may be either to render it actually and eventually unconformable, or to produce a chance of its being so. In the former of these cases, it can do no otherwise than take one or other of the shapes that have just been mentioned. In the latter case, the blame must lie either in yourself alone, or in some other person, or in both together, as before. If in another person, the acts whereby he may tend to render your conduct unconformable, must be exercised either on yourself, or on other objects at large. If exercised on yourself, the influence they possess must either be such as operates immediately on your body, or such as operates immediately on your mind. In the latter case, again, the tendency of them must be to deprive you either of the knowledge, or of the power, or of the inclination,^*41 which would be necessary to your maintaining such a conduct as shall be conformable to the purposes in question. If they be such, of which the tendency is to deprive you of the inclination in question, it must be by applying to your will the force of some seducing motive.^*42 Lastly, This motive must be either of the coercive, or of the alluring kind; in other words, it must present itself either in the shape of a mischief or of an advantage. Now in none of all the cases that have been mentioned, except the last, does the offence receive any new denomination; according to the event it is either a disturbance of trust, or an abortive attempt to be guilty of that offence. In this last it is termed bribery; and it is that particular species of it which may be termed active bribery, or bribe-giving. In this case, to consider the matter on your part, either you accept of the bribe, or you do not: if not, and you do not afterwards commit, or go about to commit, either a breach or an abuse of trust, there is no offence, on your part, in the case: if you do accept it, whether you eventually do or do not commit the breach or the abuse which it is the bribe-giver's intention you should commit, you at any rate commit an offence which is also termed bribery: and which, for distinction sake, may be termed passive bribery, or bribe-taking.^*43 As to any farther distinctions, they will depend upon the nature of the particular sort of trust in question, and therefore belong not to the present place. And thus we have thirteen sub-divisions of offences against trust: viz. 1. Wrongful non-investment of trust. 2. Wrongful interception of trust. 3. Wrongful divestment of trust. 4. Usurpation of trust. 5. Wrongful investment or attribution of trust. 6. Wrongful abdication of trust. 7. Wrongful detrectation of trust. 8. Wrongful imposition of trust. 9. Negative breach of trust. 10. Positive breach of trust. 11. Abuse of trust. 12. Disturbance of trust. 13. Bribery.

XXVIII. From what has been said, it appears that there cannot be any other offences, on the part of a trustee, by which a beneficiary can receive on any particular occasion any assignable specific prejudice. One sort of acts, however, there are by which a trustee may be put in some danger of receiving a prejudice, although neither the nature of the prejudice, nor the occasion on which he is in danger of receiving it, should be assignable. These can be no other than such acts, whatever they may be, as dispose the trustee to be acted upon by a given bribe with greater effect than any with which he could otherwise be acted upon: or in other words, which place him in such circumstances as have a tendency to increase the quantum of his sensibility to the action of any motive of the sort in question.^*44 Of these acts, there seem to be no others, that will admit of a description applicable to all places and times alike, than acts of prodigality on the part of the trustee. But in acts of this nature the prejudice to the beneficiary is contingent only and unliquidated; while the prejudice to the trustee himself is certain and liquidated. If therefore on any occasion it should be found advisable to treat it on the footing of an offence, it will find its place more naturally in the class of self-regarding ones.

XXIX. As to the subdivisions of offences against trust, these are perfectly analogous to those of offences by falsehood. The trust may be private, semi-public, or public: it may concern property, person, reputation, or condition; or any two or more of those articles at a time: as will be more particularly explained in another place. Here too the offence, in running over the ground occupied by the three prior classes, will in some instances change its name, while in others it will not.

XXX. Lastly, if it be asked, What sort of relation there subsists between falsehoods on one hand, and offences concerning trust on the other hand; the answer is, they are altogether disparate. Falsehood is a circumstance that may enter into the composition of any sort of offence, those concerning trust, as well as any other: in some as an accidental, in others as an essential instrument. Breach or abuse of trust are circumstances which, in the character of accidental concomitants, may enter into the composition of any other offences (those against falsehood included) besides those to which they respectively give name.