An Introduction to the Principles of Morals and Legislation
1. This chapter is an attempt to put our ideas of offences into an exact method. The particular uses of method are various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; beginning with the logical whole, dividing that into two parts, then each of those parts into two others; and so on. These first-distinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus then, let us endeavour to deal with offences; or rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous, and as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce anything in common. Whatever discoveries may be made concerning them, how different soever their congruencies and disagreements may be found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by a conformable set of names. Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an entire new set of names, and you are sure not to be understood at all. Complete success then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imperfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them.
3. That is, either by name, or at least by description, in such manner as to be sufficiently distinguished from all others; for instance, by the circumstance of being the owner or occupier of such and such goods. See B. I. tit. [Personation], supra, ch. xii. [Consequences], xv.
4. With regard to offences against a class or neighbourhood, it is evident, that the fewer the individuals are, of which such class is composed, and the narrower that neighbourhood is, the more likely are the persons, to whom the offense is detrimental, to become assignable, insomuch that, in some cases, it may be difficult to determine concerning a given offense, whether it be an offense against individuals, or against a class or neighbourhood. It is evident also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable to a certain degree, to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments under which men are wont to distribute objects for the convenience of discourse.
6. 1. Offences by falsehood: 2. Offenses against trust. See also par. xx. to xxx. and par. lxvi. Maturer views have suggested the feasibility, and the means, of ridding the system of this anomalous excrescence. Instead of considering these as so many divisions of offences, divided into genera a correspondent and collateral to the several genera distinguished by other appellations, they may be considered as so many specific differences, respectively applicable to those genera. Thus, in the case of a simple personal injury, in the operation of which a plan of falsehood has been employed: it seems more simple and more natural, to consider the offense thus committed as a particular species or modification of the genus of offence termed a simple personal injury, than to consider the simple personal injury, when effected by such means, as a modification of the division of offences entitled Offences through falsehood. By this means the circumstances of the intervention of falsehood as an instrument, and of the existence of a particular obligation of the nature of a trust, will be reduced to a par with various other classes of circumstances capable of affording grounds of modification commonly of aggravation or extenuation, to various genera of offences: instance, Premeditation, and conspiracy, on the one hand; Provocation received, and intoxication, on the other. This class will appear, but too plainly, as a kind of botch in comparison of the rest. But such is the fate of science and more particularly of the moral branch; the distribution of things must in a great measure be dependent on their names: arrangement, the work of mature rejection, must be ruled by nomenclature, the work of popular caprice.
In the book of the laws, offences must therefore be treated of as much as possible under their accustomed names. Generical terms, which are in continual use, and which express ideas for which there are no other terms in use, cannot safely be discarded. When any such occur, which cannot be brought to quadrate with such a plan of classification as appears to be most convenient upon the whole, what then is to be done? There seems to be but one thing, which is, to retain them, and annex them to the regular part of the system in the form of an appendix. Though they cannot, when entire, be made to rank under any of the classes established in the rest of the system, the divisions to which they give title may be broken down into lesser divisions, which may not be alike intractable. By this means, how discordant soever with the rest of the system they may appear to be at first sight, on a closer inspection they may be found conformable.
This must inevitably be the case with the names of offences, which are so various and universal in their nature, as to be capable, each of them of doing whatever mischief can be done by any other kind or kinds of offences whatsoever. Offences of this description may well be called anomalous.
Such offences, it is plain, cannot but show themselves equally intractable under every kind of system. Upon whatever principle the system be constructed, they cannot, any of them, with any degree of propriety, be confined to any one division. If, therefore, they constitute a blemish in the present system, it is such a blemish as could not be avoided but at the expense of a greater. The class they are here thrown into will traverse, in its subordinate ramifications, the other classes and divisions of the present system: true, but so would they of any other. An irregularity, and that but a superficial one, is a less evil than continual error and contradiction. But even this slight deviation, which the fashion of language seemed to render unavoidable at the outset, we shall soon find occasion to correct as we advance. For though the first great parcels into which the offences of this class are divided are not referable, any of them, to any of the former classes, yet the subsequent lesser subdivisions are.
If, by reason of the word relation, this part of the division should appear obscure, the unknown term may be got rid of in the following manner. Our ideas are derived, all of them, from the senses; pleasurable and painful ones, therefore, among the rest: consequently, from the operation of sensible objects upon our senses. A man's happiness, then, may be said to depend more or less upon the relation he bears to any sensible object, when such object is in a way that stands a chance, greater or less, of producing to him, or averting from him, pain or pleasure. Now this, if at all, it must do in one or other of two ways; 1. In an active way, properly so called; viz. by motion: or, 2. In a passive or quiescent way, by being moved to, or acted upon: and in either case, either, 1. in an immediate way, by acting upon, or being acted on by, the organs of sense, without the intervention of any other external object: or, 2. in a more or less remote way, by acting upon, or being acted on by, some other external object, which (with the intervention of a greater or less number of such objects, and at the end of more or less considerable intervals of time) will come at length to act upon, or be acted upon by, those organs. And this is equally true, whether the external objects in question be things or persons. It is also equally true of pains and pleasures of the mind, as of those of the body: all the difference is, that in the production of these, the pleasure or pain may result immediately from the perception which it accompanies: in the production of those of the mind, it cannot result from the action of an object of sense any otherwise than by association; to wit, by means of some connection which the perception has contracted with certain prior ones, lodged already in the memory.*
* See ch. v. [Pleasures and Pains], xv, xxxi. Ch. x. [Motives], xxxviii, note.
9. Subsequent consideration has here suggested several alterations. The necessity of adding to property, power, in the character of a distinguishable as well as valuable object or subject-matter of possession, has presented itself to view: and in regard to the fictitious entity here termed condition (for shortness instead of saying condition in life), it has been observed to be a sort of composite object, compounded of property, reputation, power and right to services. For this composite object the more proper place was therefore at the tail of the several simple ones.—Note by the Editor, July, 1822.
13. See B. I. tit. [Semi-public offences]. In the mean time that of pestilence may serve as an example. A man, without any intention of giving birth to such a calamity, may expose a neighbourhood to the danger of it, by breaking quarantine or violating any of those other preventive regulations which governments, at certain conjunctures, may find it expedient to have recourse to, for the purpose of guarding against such danger.
15. In this part of the analysis, I have found it necessary to deviate in some degree from the rigid rules of the exhaustive method I set out with. By me, or by some one else, this method may, perhaps, be more strictly pursued at some maturer period of the science. At present, the benefit that might result from the unrelaxed observance of it, seemed so precarious that I could not help doubting whether it would pay for the delay and trouble. Doubtless such a method is eminently instructive: but the fatigue of following it out is so great, not only to the author, but probably also to the reader, that carried to its utmost length at the first attempt, it might perhaps do more disservice in the way of disgust, than service in the way of information. For knowledge, like physic, how salutary soever in itself, becomes no longer of any use, when made too unpalatable to be swallowed. Mean time, it cannot but be a mortifying circumstance to a writer, who is sensible of the importance of his subject, and anxious to do it justice, to find himself obliged to exhibit what he perceives to be faulty, with any view, how indistinct soever, of something more perfect before his eyes. If there be any thing new and original in this work, it is to the exhaustive method so often aimed at that I am indebted for it. It will, therefore, be no great wonder if I should not be able to quit it without reluctance. On the other hand, the marks of stiffness which will doubtless be perceived in a multitude of places, are chiefly owing to a solicitous, and not perfectly successful, pursuit of this same method. New instruments are seldom handled at first with perfect ease.
16. The idea of government, it may be observed, is introduced here without any preparation. The fact of its being established, I assume as notorious, and the necessity of it as alike obvious and incontestable. Observations indicating that necessity, if any such should be thought worth looking at in this view, may be found by turning to a passage in a former chapter, where they were incidentally adduced for the purpose of illustration. See. Ch. xii. [Consequences], § xvii.
17. See infra, liv. note. Even this head, ample as it is, and vague as it may seem to be, will not, when examined by the principle of utility, serve, any more than another, to secrete any offence which has no title to be placed there. To show the pain or loss of pleasure which is likely to ensue, is a problem, which before a legislator can justify himself in adding the act to the catalogue of offences, he may in this case, as in every other, be called upon to solve.
18. For examples, see infra, liv. note. This branch of the business of government, a sort of work of supererogation, as it may be called, in the calendar of political duty, is comparatively but of recent date. It is not for this that the untutored many could have originally submitted themselves to the dominion of the few. It was the dread of evil, not the hope of good that first cemented societies together. Necessaries come always before luxuries. The state of language marks the progress of ideas. Time out of mind the military department has had a name: so has that of justice: the power which occupies itself in preventing mischief, not till lately, and that but a loose one, the police: for the power which takes for its object the introduction of positive good, no peculiar name, however inadequate, seems yet to have been devised.
19. The functions of justice, and those of the police, must be apt in many points to run one into another: especially as the business would be very badly managed if the same persons, whose more particular duty it is to act as officers of the police, were not upon occasion to act in the capacity of officers of justice. The ideas, however, of the two functions may still be kept distinct: and I see not where the line of separation can be drawn, unless it be as above.
As to the word police, though of Greek extraction, it seems to be of French growth: it is from France, at least, that it has been imported into Great Britain, where it still retains its foreign garb: in Germany, if it did not originate there, it has at least been naturalized. Taken all together, the idea belonging to it seems to be too multifarious to be susceptible of any single definition. Want of words obliged me to reduce the two branches here specified into one. Who would have endured in this place to have seen two such words as the phthano-paranomic or crime-preventing, and the phthano-symphoric or calamity-preventing, branches of the police? the inconveniences of uniting the two branches under the same denomination, are, however, the less, inasmuch as the operations requisite to be performed for the two purposes will in many cases be the same. Other functions, commonly referred to the head of police, may be referred either to the head of that power which occupies itself in promoting in a positive way the increase of the national felicity, or of that which employs itself in the management of the public wealth. See infra, liv. note.
20. It is from abroad that those pernicious enterprises are most apt to originate, which come backed with a greater quantity of physical force than the persons who are in a more particular sense the officers of justice are wont to have at their command. Mischief the perpetration of which is ensured by a force of such magnitude, may therefore be looked upon in general as the work of external adversaries. Accordingly, when the persons by whom it is perpetrated are in such force as to bid defiance to the ordinary efforts of justice, they loosen themselves from their original denomination in proportion as they increase in force, till at length they are looked upon as being no longer members of the state, but as standing altogether upon a footing with external adversaries. Give force enough to robbery, and it swells into rebellion: give permanence enough to rebellion, and it settles into hostility.
21. It must be confessed, that in common speech the distinction here established between the public wealth and the national wealth is but indifferently settled: nor is this to be wondered at; the ideas themselves, though here necessary to be distinguished, being so frequently convertible. But I am mistaken if the language will furnish any other two words that would express the distinction better. Those in question will, I imagine, be allowed to be thus far well chosen, that if they were made to change their places, the import given to them would not appear to be quite so proper as that which is given to them as they stand at present.
22. I should have been afraid to have said necessarily. In the United Provinces, in the Helvetic, or even in the Germanic body, where is that one assembly in which an absolute power over the whole resides? where was there in the Roman Commonwealth? I would not undertake for certain to find an answer to all these questions.
24. It may be observed, that upon this occasion I consider religion in no other light, than in respect of the influence it may have on the happiness of the present life. As to the effects it may have in assuring us of and preparing us for a better life to come, this is a matter which comes not within the cognizanoe of the legislator. See tit. [Offences against religion].
I say offences against religion, the fictitious entity: not offences against God, the real being. For, what sort of pain should the act of a feeble mortal occasion to a being unsusceptible of pain? How should an offence affect him? Should it be an offence against his person, his property, his reputation, or his condition?
It has commonly been the way to put offences against religion foremost. The idea of precedence is naturally enough connected with that of reverence. . But for expressing reverence, there are other methods enough that are less equivocal. And in point of method and perspicuity it is evident, that with regard to offences against religion, neither the nature of the mischief which it is their tendency to produce, nor the reason there may be for punishing them, can be understood, but from the consideration of the several mischiefs which result from the several other sorts of offences. In a political view, it is only because those others are mischievous, that offences against religion are so too.
25. This division of falsehoods, it is to be observed, is not regularly drawn out: that being what the nature of the case will not here admit of. Falsehood may be infinitely diversified in other ways than these. In a particular case, for instance, simple falsehood when uttered by writing, is distinguished from the same falsehood when uttered by word of mouth, and has had a particular name given to it accordingly. I mean, where it strikes against reputation, in which case, the instrument it has been uttered by has been called a libel. Now it is obvious, that in the same manner it might have received a distinct name in all other cases where it is uttered by writing. But there has not happened to be any thing in particular that has disposed mankind in those cases to give it such a name. The case is, that among the infinity of circumstances by which it might have been diversified, those which constitute it a libel, happen to have engaged a peculiar share of attention on the part of the institutors of language; either in virtue of the influence which these circumstances have on the tendency of the act, or in virtue of any particular degree of force with which on any other account they may have disposed it to strike upon the imagination.
27. There are two other circumstances still more material; viz. 1. The parties whose interest is affected by the falsehood: 2. The point or article in which that interest is affected. These circumstances, however, enter not into the composition of the generical character. Their use is, as we shall see, to characterize the several species of each genus. See B. I. tit. [Falsehoods].
29. Powers, though not a species of rights (for the two sorts of fictitious entities, termed a power and a right, are altogether disparate) are yet so far included under rights, that wherever the word power may be employed, the word right may also be employed: The reason is, that wherever you may speak of a person as having a power, you may also speak of him as having a right to such power: but the converse of this proposition does not hold good: there are cases in which, though you may speak of a man as having a right, you cannot speak of him as having a power or in any other way make any mention of that word. On various occasions you have a right for instance, to the services of the magistrate: but if you are a private person, you have no power over him: all the power is on his side. This being the case, as the word right was employed, the word power might perhaps, without any deficiency in the sense, have been omitted. On the present occasion however, as in speaking of trusts this word is commonly made more use of than the word right, it seemed most eligible, for the sake of perspicuity, to insert them both.
It may be expected that, since the word trust has been here expounded, the words power and right, upon the meaning of which the exposition of the word trust is made to depend, should be expounded also: and certain it is, that no two words can stand more in need of it than these do. Such exposition I accordingly set about to give, and indeed have actually drawn up: but the details into which I found it necessary to enter for this purpose, were of such length as to take up more room than could consistently be allotted to them in this place. With respect to these words, therefore, and a number of others, such as possession, title, and the like, which in point of import are inseparably connected with them, instead of exhibiting the exposition itself, I must content myself with giving a general idea of the plan which I have pursued in framing it: and as to every thing else, I must leave the import of them to rest upon whatever footing it may happen to stand upon in the apprehension of each reader. Power and right, and the whole tribe of fictitious entities of this stamp, are all of them, in the sense which belongs to them in a book of jurisprudence, the results of some manifestation or other of the legislator's will with respect to such or such an act. Now every such manifestation is either a prohibition, a command, or their respective negations; viz. a permission, and the declaration which the legislator makes of his will when on any occasion he leaves an act uncommanded. Now, to render the expression of the rule more concise, the commanding of a positive act may be represented by the prohibition of the negative act which is opposed to it. To know then how to expound a right, carry your eye to the act which in the circumstances in question would be a violation of that right: the law creates the right by prohibiting that act. Power, whether over a man's own person, or over other persons or over things, is constituted in the first instance by permission: but in as far as the law takes an active part in corroborating it, it is created by prohibition, and by command: by prohibition of such acts (on the part of other persons) as are judged incompatible with the exercise of it; and upon occasion, by command of such acts as are judged to be necessary for the removal of such or such obstacles of the number of those which may occur to impede the exercise of it. For every right which the law confers on one party, whether that party be an individual, a subordinate class of individuals, or the public, it thereby imposes on some other party a duty or obligation. But there may be laws which command or prohibit acts, that is, impose duties, without any other view than the benefit of the agent: these generate no rights: duties, therefore, may be either extra-regarding or self-regarding: extra-regarding have rights to correspond to them: self-regarding, none.
That the exposition of the words power and right must, in order to be correct, enter into a great variety of details, may be presently made appear. One branch of the system of rights and powers, and but one, are those of which property is composed: to be correct, then, it must, among other things, be applicable to the whole tribe of modifications of which property, is susceptible. But the commands and prohibitions, by which the powers and rights that compose those several modifications are created, are so many different forms: to comprise the exposition in question within the compass of a single paragraph, would therefore be impossible: to take as many paragraphs for it as would be necessary, in order to exhibit these different forms, would be to engage in a detail so ample, that the analysis of the several possible species of property would compose only a part of it. This labour, uninviting as it was, I have accordingly undergone: but the result of it, as may well be imagined, seemed too voluminous and minute to be exhibited in an outline like the present. Happily it is not necessary except only for the scientific purpose of arrangement, to the understanding of any thing that need be said on the penal branch of the art of legislation. In a work which should treat of the civil branch of that art, it would find its proper place: and in such a work, if conducted upon the plan of the present one, it would be indispensable. Of the limits which seem to separate the one of these branches from the other, a pretty ample description will be found in the next chapter: from which some further lights respecting the course to be taken for developing the notions to be annexed to the words right and power, may incidentally be collected. See in particular § 3 and 4. See also par. lv. of the present chapter.
I might have cut this matter very short, by proceeding in the usual strain, and saying, that a power was a faculty, and that a right was a privilege, and so on, following the beaten track of definition. But the inanity of such a method, in cases like the present, has been already pointed out:* a power is not a—any thing: neither is a right a—any thing: the case is they have neither of them any superior genus: these, together with duty, obligation, and a multitude of others of the same stamp, being of the number of those fictitious entities, of which the import can by no other means be illustrated than by showing the relation which they bear to real ones.
* See Fragment of Government, ch. v. § 6. note.
30. The first of these parties is styled in the law language, as well as in common speech, by the name here given to him. The other is styled, in the technical language of the English law, a cestuy que trust: in common speech, as we have observed, there is, unfortunately, no name for him. As to the law phrase, it is antiquated French, and though complex, it is still elliptical, and to the highest degree obscure. The phrase in full length would run in some such manner as this: cestuy al use de qui le trust est créé: he to whose use the trust or benefit is created. In a particular case a cestuy que trust is called by the Roman law, fidei-commissarius. In imitation of this, I have seen him somewhere or other called in English a fide-committee. This term, however, seems not very expressive. A fide-committee, or, as it should have been, fidei-committee, seems, literally speaking, to mean one who is committed to the good faith of another. Good faith seems to consist in the keeping of a promise. But a trust may be created without any promise in the case. It is indeed common enough to exact a promise, in order the more effectually to oblige a man to do that which he is made to promise he will do. But this is merely an accidental circumstance. A trust may be created without any such thing. What is it that constitutes a legal obligation in any case? A command, express or virtual, together with punishment appointed for the breach of it. By the same means may an obligation be constituted in this case as well as any other. Instead of the word beneficiary, which I found it necessary to adopt, the sense would be better expressed by some such word as beneficiendary (a word analogous in its formation to referendary), were it such an one as the ear could bring itself to endure. This would put it more effectually out of doubt, that the party meant was the party who ought to receive the benefit, whether he actually receives it or no: whereas the word beneficiary might be understood to intimate, that the benefit was actually received: while in offences against trust the mischief commonly is, that such benefit is reaped not by the person it was designed for, but by some other: for instance, the trustee.
31. It is for shortness' sake that the proposition is stated as it stands in the text. If critically examined, it might be found, perhaps, to be scarcely justifiable by the laws of language. For the fictitious entities, characterised by the two abstract terms, trust and condition, are not subalternate but disparate. To speak with perfect precision, we should say that he who is invested with a trust is, on that account, spoken of as being invested with a condition: viz. the condition of a trustee. We speak of the condition of a trustee as we speak of the condition of a husband or a father.
33. It is to be observed, that in common speech, in the phrase the object of a man's property, the words the object of are commonly left out; and by an ellipsis, which, violent as it is, is now become more familiar than the phrase at length, they have made that part of it which consists of the words a man's property perform the office of the whole. In some cases then it was only on a part of the object that the acts in question might be performed: and to say, on this account, that the object was a man's property, was as much as to intimate that they might be performed on any part. In other cases it was only certain particular acts that might be exercised on the object: and to say of the object that it was his property, was as much as to intimate that any acts whatever might be exercised on it. Sometimes the acts in question were not to be exercised but at a future time nor then, perhaps, but in the case of the happening of a particular event of which the happening was uncertain: and to say of an object that it was his property, was as much as to intimate that the acts in question might be exercised on it at any time. Sometimes the object on which the acts in question were to have their termination, or their commencement, was a human creature: and to speak of one human creature as being the property of another is what would shock the ear every where but where slavery is established, and even there, when applied to persons in any other condition than that of slaves. Among the first Romans, indeed, the wife herself was the property of her husband; the child, of his father; the servant, of his master. In the civilised nations of modern times, the two first kinds of property are altogether at an end: and the last, unhappily not yet at an end, but however verging, it is to be hoped, towards extinction. The husband's property is now the company* of his wife; the father's the guardianship and service of his child; the master's, the service of his servant.
* The consortium, says the English law.
34. We shall have occasion, a little farther on, to speak of the person in whose hands the trust exists, under the description of the person who possesses, or is in possession of it and thence of the possession of the trust abstracted from the consideration of the possessor. However different the expression, the import is in both cases the same. So irregular and imperfect is the structure of language on this head, that no one phrase can be made to suit the idea on all the occasions on which it is requisite it should be brought to view: the phrase must be continually shifted, or new modified: so likewise in regard to conditions, and in regard to property. The being invested with, or possessing a condition; the being in possession of an article of property, that is if the object of the property be corporeal; the having a legal title (defeasible or indefeasible) to the physical possession of it, answers to the being in possession of a trust, or the being the person in whose hands a trust exists. In like manner, to the exercise of the functions belonging to a trust, or to a condition, corresponds the enjoyment of an article of property; that is, if the object of it be corporeal, the occupation. These verbal discussions are equally tedious and indispensable. Striving to cut a new road through the wilds of jurisprudence, I find myself continually distressed, for want of tools that are fit to work with. To frame a complete set of new ones is impossible. All that can be done is, to make here and there a new one in cases of absolute necessity, and for the rest, to patch up from time to time the imperfections of the old.
As to the bipartition which this paragraph sets out with, it must be acknowledged not to be of the nature of those which to a first glance afford a sort of intuitive proof of their being exhaustive. There is not that marked connection and opposition between the terms of it, which subsists between contradictory terms and between terms that have the same common genus. I imagine, however, that upon examination it would be found to be exhaustive notwithstanding: and that it might even be demonstrated so to be. But the demonstration would lead us too far out of the ordinary track of language.
37. It may seem a sort of anachronism to speak on the present occasion of a trust, condition, or other possession, as one of which it may happen that a man ought or ought not to have had possession given him by the law, for, the plan here set out upon is to give such a view all along of the laws that are proposed, as shall be taken from the reasons which there are for making them: the reason then it would seem should subsist before the law: not the law before the reason. Nor is this to be denied: for, unquestionably, upon the principle of utility, it may be said with equal truth of those operations by which a trust, or any other article of property, is instituted, as of any other operations of the law, that it never can be expedient they should be performed, unless some reason for performing them, deduced from that principle, can be assigned. To give property to one man, you must impose obligation on another: you must oblige him to do something which he may have a mind not to do, or to abstain from doing something which he may have a mind to do: in a word, you must in some way or other expose him to inconvenience. Every such law, therefore, must at any rate be mischievous in the first instance, and if no good effects can be produced to set against the bad, it must be mischievous upon the whole. Some reasons, therefore, in this case, as in every other, there ought to be. The truth is, that in the case before us, the reasons are of too various and complicated a nature to be brought to view in an analytical outline like the present. Where the offence is of the number of those by which person or reputation are affected, the reasons for prohibiting it lie on the surface, and apply to every man alike. But property, before it can be offended against, must be created, and at the instant of its creation distributed, as it were, into parcels of different sorts and sizes, which require to be assigned, some to one man and some to another, for reasons, of which many lie a little out of sight, and which being different in different cases, would take up more room than could consistently be allotted to them here. For the present purpose, it is sufficient if it appear, that for the carrying on of the several purposes of life, there are trusts, and conditions, and other articles of property, which must be possessed by somebody: and that it is not every article that can, nor every article that ought, to be possessed by every body. What articles ought to be created, and to what persons, and in what cases they ought to be respectively assigned, are questions which cannot be settled here. Nor is there any reason for wishing that they could, since the settling them one way or another is what would make no difference in the nature of any offence whereby any party may be exposed, on the occasion of any such institution, to sustain a detriment.
As to the expression non-investment of trust, I am sensible that it is not perfectly consonant to the idiom of the language: the usage is to speak of a person as being invested (that is clothed) with a trust, not of a trust as of a thing that is itself invested or put on. The phrase at length would be, the non-investment of a person with a trust: but this phrase is by much too long-winded to answer the purpose of an appellative. I saw therefore, no other resource than to venture upon the ellipsis here employed. The ancient lawyers, in the construction of their appellatives, have indulged themselves in much harsher ellipses without scruple. See above, xxv. note. It is already the usage to speak of a trust as a thing that vests, and as a thing that may be divested.
39. I do not find that this word has yet been received into the English language. In the Latin, however, it is very expressive, and is used in a sense exactly suitable to the sense here given to it. Militiam detrectare, to endeavour to avoid serving in the army, is a phrase not unfrequently met with in the Roman writers.
40. What is here meant by abuse of trust, is the exercise of a power usurped over strangers, under favour of the powers properly belonging to the trust. The distinction between what is here meant by breach of trust and what is here meant by abuse of trust, is not very steadily observed in common speech: and in regard to public trusts, it will even in many cases be imperceptible. The two offences are, however, in themselves perfectly distinct: since the persons, by whom the prejudice is suffered, are in many cases altogether different. It may be observed, perhaps, that with regard to abuse of trust, there is but one species here mentioned; viz. that which corresponds to positive breach of trust: none being mentioned as corresponding to negative breach of trust. The reason of this distinction will presently appear. In favour of the parties, for whose benefit the trust was created, the trustee is bound to act, and therefore merely by his doing nothing they may receive a prejudice: but in favour of other persons at large he is not bound to act: and therefore it is only from some positive act on his part that any prejudice can ensue to them.
43. To bribe a trustee, as such, is in fact neither more nor less than to suborn him to be guilty of a breach or an abuse of trust. Now subornation is of the number of those accessory offences which every principal offence, one as well as another, is liable to be attended with. See infra, xxxi. note, and B. I. tit. [Accessory offences]. This particular species of subornation however being one that, besides its having a specific name framed to express it, is apt to engage a peculiar share of attention, and to present itself to view in company with other offences against trust, it would have seemed an omission not to have included it in that catalogue.
45. In the enumeration of these genera, it is all along to be observed, that offences of an accessory nature are not mentioned; unless it be here and there where they have obtained current names which seemed too much in vogue to be omitted. Accessory offences are those which, without being the very acts from which the mischief in question takes its immediate rise, are, in the way of causality, connected with those acts. See ch. vii. [Actions] xxiv. and B. I. tit. [Accessory offences].
47. Of these, and the several other leading expressions which there is occasion to bring to view in the remaining part of this analysis, ample definitions will be found in the body of the work conceived in terminis legis. To give particular references to these definitions, would be encumbering the page to little purpose.
48. Injurious restrainment at large, and injurious compulsion at large, are here styled simple, in order to distinguish them from confinement, banishment, robbery, and extortion, all which are, in many cases, but so many modifications of one or other of the two first-mentioned offences
To constitute an offence an act of simple injurious restrainment, or simple injurious compulsion, it is sufficient if the influence it exerts be, in the first place, pernicious; in the next place, exerted on the person by the medium of the will: it is not necessary that that part of the person on which it is exerted be the part to which it is pernicious: it is not even necessary that it should immediately be pernicious to either of these parts, though to one or other of them it must be pernicious in the long-run, if it be pernicious at all. An act in which the body, for example, is concerned, may be very disagreeable, and thereby pernicious to him who performs it, though neither disagreeable nor pernicious to his body: for instance, to stand or sit in public with a label on his back, or under any other circumstances of ignominy.
49. It may be observed, that wrongful menacement is included as well in simple injurious restrainment as in simple injurious compulsion, except in the rare case where the motives by which one man is prevented by another from doing a thing that would have been materially to his advantage, or induced to do a thing that is materially to his prejudice, are of the alluring kind.
50. Although, for reasons that have been already given (supra xxxi), no complete catalogue, nor therefore any exhaustive view, of either semi-public or self-regarding offences, can be exhibited in this chapter, it may be a satisfaction, however, to the reader, to see some sort of list of them, if it were only for the sake of having examples before his eyes. Such lists cannot any where be placed to more advantage than under the heads of the several divisions of private extra-regarding offences, to which the semi-public and self-regarding offences in question respectively correspond. Concerning the two latter, however, and the last more particularly, it must be understood that all I mean by inserting them here, is to exhibit the mischief, if any, which it is of the nature of them respectively to produce, without deciding upon the question, whether it would be worth while [see ch. xiii. Cases unmeet] in every instance, for the sake of combating that mischief, to introduce the evil of punishment. In the course of this detail it will be observed, that there are several heads of extra-regarding private offences, to which the correspondent heads, either of semi-public or self-regarding offences, or of both, are wanting. The reasons of these deficiencies will probably, in most instances, be evident enough upon the face of them. Lest they should not, they are however specified in the body of the work. They would take up too much room were they to be inserted here.
I. SEMI-PUBLIC OFFENCES through calamity. Calamities, by which the persons or properties of men, or both, are liable to be affected, seem to be as follows: 1. Pestilence or contagion. 2. Famine, and other kinds of scarcity. 3. Mischiefs producible by persons deficient in point of understanding, such as infants, idiots, and maniacs, for want of their being properly taken care of. 4. Mischief producible by the ravages of noxious animals, such as beasts of prey, locusts, &c. &c. 5. Collapsion, or fall of large masses of solid matter, such as decayed buildings, or rocks, or masses of snow. 6. Inundation or submersion. 7. Tempest. 8. Blight. 9. Conflagration. 10. Explosion. In as far as a man may contribute, by any imprudent act of his, to give birth to any of the above calamities, such act may be an offence. In as far as a man may fail to do what is incumbent on him to do towards preventing them, such failure may be an offence.
II. SEMI-PUBLIC OFFENCES of mere delinquency. A whole neighbourhood may be made to suffer, 1. Simple corporal injuries: in other words they may be made to suffer in point of health, by offensive or dangerous trades or manufactures: by selling or falsely puffing off unwholesome medicines or provisions: by poisoning or drying up of springs, destroying of aqueducts, destroying woods, walls, or other fences against wind and rain: by any kinds of artificial scarcity; or by any other calamities intentionally produced. 2. and 3. Simple injurious restrainment, and simple injurious compulsion: for instance, by obliging a whole neighbourhood, by dint of threatening hand-bills or threatening discourses, publicly delivered, to join, or forbear to join, in illuminations, acclamations, outcries, invectives, subscriptions, undertakings, processions, or any other mode of expressing joy or grief, displeasure or approbation, or, in short, in any other course of conduct whatsoever. 4. and 5. Confinement and banishment: by the spoiling of roads, bridges, or ferry-boats: by destroying or unwarrantably pre-occupying public carriages, or houses of accommodation. 6. By menacement: as by incendiary letters, and tumultuous assemblies: by newspapers or hand-bills, denouncing vengeance against persons of particular denominations: for example, against Jews, Catholics, Protestants, Scotchmen, Gascons, Catalonians, &c. 7. Simple mental injuries: as by distressful, terrifying, obscene, or irreligious exhibitions; such as exposure of sores by beggars, exposure of dead bodies, exhibitions or reports of counterfeit witchcrafts or apparitions, exhibition of obscene or blasphemous prints: obscene or blasphemous discourses held in public: spreading false news of public defeats in battle, or of other misfortunes.
III. Self-regarding offences against person. 1. Fasting. Abstinence from venery, self-flagellation, self-mutilation, and other self-denying and self-tormenting practices. 2. Gluttony, drunkenness, excessive venery, and other species of intemperance. 3. Suicide.
II. SELF-REGARDING OFFENCES. 1. Incontinence in females. 2. Incest.
55. The light in which the offense of insolvency is here exhibited, may perhaps at first consideration be apt to appear not only novel but improper. It may naturally enough appear, that when a man owes you a sum of money, for instance, the right to the money is yours already, and that what he withholds from you by not paying you, is not the legal title to it, possession of it, or power over it, but the physical possession of it, or power over it, only. But upon a more accurate examination this will be found not to be the case. What is meant by payment, is always an act of investitive power, as above explained; an expression of an act of the will, and not a physical act: it is an act exercised with relation indeed to the thing said to be paid, but not in a physical sense exercised upon it. A man who owes you ten pounds, takes up a handful of silver to that amount, and lays it down on a table at which you are sitting. If then by words, or gestures, or any means whatever, addressing himself to you, he intimates it to be his will that you should take up the money, and do with it as you please, he is said to have paid you: but if the case was, that he laid it down not for that purpose, but for some other, for instance, to count it and examine it, meaning to take it up again himself, or leave it for somebody else, he has not paid you: yet the physical acts, exercised upon the pieces of money in question, are in both cases the same. Till he does express a will to that purport, what you have is not, properly speaking, the legal possession of the money, or a right to the money, but only a right to have him, or in his default perhaps a minister of justice, compelled to render you that sort of service, by the rendering of which he is said to pay you: that is, to express such will as above-mentioned, with regard to some corporeal article, or other of a certain species, and of value equal to the amount of what he owes you: or, in other words, to exercise in your favour an act of investitive power with relation to some such article
True it is, that in certain cases a man may perhaps not be deemed according to common acceptation, to have paid you, without rendering you a further set of services, and those of another sort: a set of services, which are rendered by the exercising of certain acts of a physical nature upon the very thing with which he is said to pay you: to wit, by transferring the thing to a certain place where you may be sure to find it, and where it may be convenient for you to receive it. But these services, although the obligation of rendering them should be annexed by law to the obligation of rendering those other services in the performance of which the operation of payment properly consists, are plainly acts of a distinct nature: nor are they essential to the operation: by themselves they do not constitute it, and it may be performed without them. It must be performed without them wherever the thing to be transferred happens to be already as much within the reach, physically speaking, of the creditor, as by any act of the debtor it can be made to be.
This matter would have appeared in a clearer light had it been practicable to enter here into a full examination of the nature of property, and the several modifications of which it is susceptible: but every thing cannot be done at once.
57. Under wrongful withholding of services is included breach of contract: for the obligation to render services may be grounded either on contract, or upon other titles: in other words, the event of a man's engaging in a contract is one out of many other investitive events from which the right of receiving them may take its commencement. See ch. xvii. [Limits], § iv.
Were the word services to be taken in its utmost latitude (negative included as well as positive) this one head would cover the whole law. To this place then are to be referred such services only, the withholding of which does not coincide with any of the other offenses, for which separate denominations have been provided.
58. In the English law, detinue and detainer: detinue applied chiefly to movables; detainer, to immovables. Under detinue and detainer cases are also comprised, in which the offense consists in forbearing to transfer the legal possession of the thing: such oases may be considered as coming under the head of wrongful non-investment. The distinction between mere physical possession and legal possession, where the latter is short-lived and defeasible, seems scarcely hitherto to have been attended to. In a multitude of instances they are confounded under the same expressions. The cause is, that probably under all laws, and frequently for very good reasons, the legal possession, with whatever certainty defeasible upon the event of a trial, is, down to the time of that event, in many cases annexed to the appearance of the physical.
59. In attempting to exhibit the import belonging to this and other names of offenses in common use, I must be understood to speak all along with the utmost diffidence. The truth is, the import given to them is commonly neither determinate nor uniform: so that in the nature of things, no definition that can be given of them by a private person can be altogether an exact one. To fix the sense of them belongs only to the legislator.
60. The remaining cases come under the head of usurpation, or wrongful investment of property. The distinction seems hardly hitherto to have been attended to: it turns like another, mentioned above, upon the distinction between legal possession and physical. The same observation may be applied to the case of extortion hereafter following.
62. Usury, which, if it must be an offense, is an offense committed with consent, that is, with the consent of the party supposed to be injured, cannot merit a place in the catalogue of offenses, unless the consent were either unfairly obtained or unfreely: in the first case, it coincides with defraudment; in the other, with extortion.
63. I. SEMI-PUBLIC OFFENCES. 1. Wrongful divestment, interception, usurpation, &c. of valuables, which are the property of a corporate body; or which are in the indiscriminate occupation of a neighbourhood; such as parish churches, altars, relics, and other articles appropriated to the purposes of religion: or things which are in the indiscriminate occupation of the public at large; such as mile-stones, market-houses, exchanges, public gardens, and cathedrals. 2. Setting on foot what have been called bubbles or fraudulent partnership, or gaming adventures; propagating false news to raise or sink the value of stocks, or of any other denomination of property.
II. SELF-REGARDING OFFENCES. 1. Idleness. 2. Gaming. 3. Other species of prodigality.
II. SELF-REGARDING OFFENCES. 1. Sacrifice of virginity. 2. Indecencies not public.
68. Applied to movables, the circumstance of force has never, at least by the technical part of the language, been taken into account: no such combination of terms as forcible occupation is in current use. The word detinue is applied to movables only: and (in the language of the law) the word forcible has never been combined with it. The word applied to immovables is detainer: this is combined with the word forcible: and what is singular, it is scarcely in use without that word. It was impossible to steer altogether clear of this technical nomenclature, on account of the influence which it has on the body of the language.
II. SELF-REGARDING OFFENSES—none.
71. By the terms connubial and post-connubial, all I mean at present to bring to view is, the mere physical union, apart from the ceremonies and legal engagements that will afterwards be considered as accompanying it.
72. The vague and undetermined nature of the fictitious entity, called a relation, is, on occasions like the present, apt to be productive of a good deal of confusion. A relation is either said to be borne by one of the objects which are parties to it, to the other, or to subsist between them. The latter mode of phraseology is, perhaps, rather the more common. In such case the idea seems to be, that from the consideration of the two objects there results but one relation, which belongs as it were in common to them both. In some cases, this perhaps may answer the purpose very well: it will not, however, in the present case. For the present purpose it will be necessary we should conceive two relations as resulting from the two objects, and borne, since such is the phrase, by the one of them to or towards the other: one relation borne by the first object to the second: another relation borne by the second object to the first. This is necessary on two accounts: 1. Because for the relations themselves there are in many instances separate names: for example, the relations of guardianship and wardship: in which case, the speaking of them as if they were but one, may be productive of much confusion. 2. Because the two different relationships give birth to so many conditions: which conditions are so far different, that what is predicated and will hold good of the one, will, in various particulars, as we shall see, not hold good of the other.
74. Two persons, who by any means stand engaged to live together, can never live together long, but one of them will choose that some act or other should be done which the other will choose should not be done. When this is the case, how is the competition to be decided? Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certain means of deciding it but physical power: which indeed is the very means by which family as well as other competitions must have been decided, long before any such office as that of legislator had existence. This then being the order of things which the legislator finds established by nature, how should he do better than to acquiesce in it? The persons who by the influence of causes that prevail every where, stand engaged to live together, are, 1. Parent and child, during the infancy of the latter: 2. Man and wife: 3. Children of the same parents. Parent and child, by necessity: since, if the child did not live with the parent (or with somebody standing in the place of the parent) it could not live at all: husband and wife, by a choice approaching to necessity: children of the same parents, by the necessity of their living each of them with the parents. As between parent and child, the necessity there is of a power on the part of the parent for the preservation of the child supersedes all farther reasoning. As between man and wife, that necessity does not subsist. The only reason that applies to this case is the necessity of putting an end to competition. The man would have the meat roasted, the woman boiled: shall they both fast till the judge comes in to dress it for them? The woman would have the child dressed in green; the man, in blue: shall the child be naked till the judge comes in to clothe it? This affords a reason for giving a power to one or other of the parties: but it affords none for giving the power to the one rather than to the other. How then shall the legislator determine? Supposing it equally easy to give it to either, let him look ever so long for a reason why he should give it to the one rather than to the other, and he may look in vain. But how does the matter stand already? for there were men and wives (or, what comes to the same thing, male and female living together as man and wife) before there were legislators. Looking round him then, he finds almost every where the male the stronger of the two; and therefore possessing already, by purely physical means, that power which he is thinking of bestowing on one of them by means of law. How then can he do so well as by placing the legal power in the same hands which are beyond comparison the more likely to be in possession of the physical? in this way, few transgressions, and few calls for punishment: in the other way, perpetual transgressions, and perpetual calls for punishment. Solon is said to have transferred the same idea to the distribution of state powers. Here then was generalization: here was the work of genius. But in the disposal of domestic power, every legislator, without any effort of genius, has been a Solon. So much for reasons:* add to which, in point of motives,** that legislators seem all to have been of the male sex, down to the days of Catherine. I speak here of those who frame laws, not of those who touch them with a sceptre.
* Social motives: sympathy for the public: love of reputation, &c.
** Self-regarding motives: or social motives, which are social in a less extent: sympathy for persons of a particular description: persons of the same sex.
75. Supra, note, page 259.
77. In most civilized nations there is a sort of domestic condition, in which the superior is termed a master, while the inferior is termed sometimes indeed a servant, but more particularly and more frequently an apprentice. In this case, though the superior is, in point of usage, known by no other name than that of a master, the relationship is in point of fact a mixed one, compounded of that of master and that of guardian.
78. It may seem at first, that a person who is in the condition of a slave, could not have it in his power to engage in such course of proceeding as would be necessary, in order to give him an apparent title to be reckoned among the slaves of another master. But though a slave in point of right, it may happen that he has eloped for instance, and is not a slave in point of fact: or, suppose him a slave in point of fact, and ever so vigilantly guarded, still a person connected with him by the ties of sympathy, might do that for him which, though willing and assenting, he might not be able to do for himself: might forge a deed of donation, for example, from the one master to the other.
79. Consider them together indeed, take the sum of the two interests, and the case, as we have seen (supra, xl), is then the reverse. That case, it is to be remembered, proceeds only upon the supposition that the two parties are obliged to live together; for suppose it to be at their option to part, the necessity of establishing the power ceases.
82. In certain nations, women, whether married or not, have been placed in a state of perpetual wardship: this has been evidently founded on the notion of a decided inferiority in point of intellects on the part of the female sex, analogous to that which is the result of infancy or insanity on the part of the male. This is not the only instance in which tyranny has taken advantage of its own wrong, alleging as a reason for the domination it exercises, an imbecility, which, as far as it has been real, has been produced by the abuse of that very power which it is brought to justify. Aristotle, fascinated by the prejudice of the times, divides mankind into two distinct species, that of freemen, and that of slaves. Certain men were born to be slaves, and ought to be slaves.—Why? Because they are so.
87. This effect it may be thought will not necessarily take place: since a ward may have two guardians. One man then is guardian by right: another man comes and makes himself so by usurpation. This may very well be, and yet the former may continue guardian notwithstanding. How then (it may be asked) is he divested of his guardianship?—The answer is—Certainly not of the whole of it: but, however, of a part of it: of such part as is occupied, if one may so say, that is, of such part of the powers and rights belonging to it as are exercised, by the usurper.
88. At first view it may seem a solecism to speak of the condition of parentality as one which a man can have need to be invested with. The reason is, that it is not common for any ceremony to be required as necessary to man's being deemed in law the father of such or such a child. But the institution of such ceremony, whether advisable or not, is at least perfectly conceivable. Nor are there wanting cases in which it has actually been exemplified. By an article in the Roman law, adopted by many modern nations, an illegitimate child is rendered legitimate by the subsequent marriage of his parents. If then a priest, or other person whose office it was were to refuse to join a man and woman in matrimony, such refusal, besides being a wrongful non-investment with respect to the two matrimonial conditions, would be a wrongful non-investment of parentality and filiation, to the prejudice of any children who should have been legitimated.
89. In English we have no word that will serve to express with propriety the person who bears the relation opposed to that of parent. The word child is ambiguous being employed in another sense, perhaps more frequently than in this: more frequently in opposition to a person of full age, an adult, than in correlation to a parent. For the condition itself we have no other word than filiation: an ill-contrived term, not analogous to paternity and maternity: the proper term would have been filiality: the word filiation is as frequently, perhaps, and more consistently, put for the act of establishing a person in the possession of the condition of filiality.
92. In this case also, if the woman knew not of the prior marriage, it is besides a species of seduction; and, in as far as it affects her, belongs to another division of the offences of this class. Vide supra, xxxvi.
II. SELF-REGARDING offenses.—Improvident marriage on the part of minors.
94. In pursuance of the plan adopted with relation to semi-public and self-regarding offences, it may here be proper to exhibit such a catalogue as the nature of the design will admit, of the several genera or inferior divisions of public offences.
I. OFFENCES against the EXTERNAL SECURITY of the state. 1. Treason (in favour of foreign enemies). It may be positive or negative (negative consisting, for example, in the not opposing the commission of positive). 2. Espionage (in favour of foreign rivals not yet enemies). 3. Injuries to foreigners at large (including piracy). 4. Injuries to privileged foreigners (such as ambassadors).
II. OFFENCES AGAINST JUSTICE. Offences against judicial trust: viz. Wrongful non-investment of judicial trust, wrongful interception of judicial trust, wrongful divestment of judicial trust, usurpation of judicial trust, wrongful investment of judicial trust, wrongful abdication of judicial trust, wrongful detrectation of judicial trust, wrongful imposition of judicial trust, breach of judicial trust, abuse of judicial trust, disturbance of judicial trust, and bribery in prejudice of judicial trust.
Breach and abuse of judicial trust may be either intentional or unintentional. Intentional is culpable at any rate. Unintentional will proceed either from inadvertence, or from mis-supposal: if the inadvertence be coupled with heedlessness, or the mis-supposal with rashness, it is culpable: if not, blameless. For the particular acts by which the exercise of judicial trust may be disturbed see B. i. tit. [Offences against justice]. They are too multifarious, and too ill provided with names, to be exhibited here.
If a man fails in fulfilling the duties of this trust, and thereby comes either to break or to abuse it, it must be through some deficiency in the three requisite and only requisite endowments, of knowledge, inclination, and power. [See supra, xxvii.] A deficiency in any of those points, if any person be in fault, may proceed either from his own fault, or from the fault of those who should act with or under him. If persons who are in fault are persons invested with judicial trust, the offence comes under the head of breach or abuse of trust: if other persons, under that of disturbance of trust.
The ill effects of any breach, abuse, or disturbance of judicial trust, will consist in the production of some article or articles in the list of the mischiefs which it ought to be the original purpose of judicial procedure to remedy or avert, and of those which it ought to be the incidental purpose of it to avoid producing. These are either primary (that is immediate) or remote: remote are of the 2nd, 3rd, or 4th order, and so on. The primary are those which import actual pain to persons assignable, and are therefore mischievous in themselves: the secondary are mischievous on account of the tendency they have to produce some article or articles in the catalogue of those of the first order; and are therefore mischievous in their effects. Those of the 3rd order are mischievous only on account of the connection they have in the way of productive tendency, as before, with those of the 2nd order: and so on.
Primary inconveniences, which it ought to be the object of procedure to provide against, are, 1. The continuance of the individual offence itself, and thereby the increase as well as continuance of the mischief of it. 2 The continuance of the whole mischief of the individual offence. 3. The continuance of a part of the mischief of the individual offence. 4. Total want of amends on the part of persons injured by the offence. 5. Partial want of amends on the part of persons injured by the offence. 6. Superfluous punishment of delinquents. 7. Unjust punishment of persons accused. 8. Unnecessary labour, expense, or other suffering or danger, on the part of superior judicial officers. 9. Unnecessary labour, expense, or other suffering or danger, on the part of ministerial or other subordinate judicial officers. 10. Unnecessary labour, expense, or other suffering or danger, on the part of persons whose co-operation is requisite pro re natâ, in order to make up the necessary complement of knowledge and power on the part of judicial officers, who are such by profession. 11. Unnecessary labour, expense, or other suffering or danger, on the part of persons at large, coming under the sphere of the operations of the persons above mentioned.
Secondary inconveniences are, in the consultative, pre-interpretative (or purely civil) branch of procedure, 1. Misinterpretation or adjudication. In the executive (including the penal) branch. 2. Total impunity of delinquents: (as favouring the production of other offences of the like nature). 3. Partial impunity of delinquents. 4. Application of punishment improper in specie, though perhaps not in degree (this lessening the beneficial efficacy of the quantity employed). 5. Uneconomical application of punishment, though proper, perhaps, as well in specie as in degree. 6. Unnecessary pecuniary expense on the part of the state.
Inconveniences of the 3rd order are, 1. Unnecessary delay. 2. Unnecessary intricacy.
Inconveniences of the 4th order are, 1. Breach, 2. Abuse, 3. Disturbance, of judicial trust, as above: viz. in as far as these offences are preliminary to and distinct from those of the 2nd and 3rd orders.
Inconveniences of the 5th order are, Breach of the several regulations of procedure, or other regulations, made in the view of obviating the inconveniences above enumerated: viz. if preliminary and distinct, as before.
III. OFFENCES against the PREVENTIVE branch of the POLICE. I. Offences against phthano-paranomic trust: (, to prevent; , an offence). 2. Offences against phthano-symphoric trust: (, a calamity). The two trusts may be termed by the common appellation of prophylactic: (, beforehand, and , to guard against).
IV. OFFENCES against the PUBLIC FORCE. 1. Offences against military trust, corresponding to those against judicial trust. Military desertion is a breach of military duty, or of military trust. Favouring desertion is a disturbance of it. 2. Offences against that branch of public trust which consists in the management of the several sorts of things appropriated to the purposes of war: such as arsenals, fortifications, dock-yards, ships of war, artillery, ammunition, military magazines, and so forth. It might be termed polemo-tamieutic: from , war; and , a steward.*
V. OFFENCES against the POSITIVE increase of the NATIONAL FELICITY. 1. Offences against epistemo-threptic trust: , knowledge; and , to nourish or promote). 2. Offences against eupædagogic trust: (, well; and , to educate). 3. Offences against noso-comial trust: (, a disease; and , to take care of). 4. Offences against moro-comial trust: (, an insane person). 5. Offences against ptocho-comial trust: (, the poor). 6. Offences against antembletic trust: (, to bestow in reparation of a loss). 7. Offences against hedonarchic trust: (, pleasures; and , to preside over). The above are examples of the principal establishments which should or might be set on foot for the purpose of making, in so many different ways, a positive addition to the stock of national felicity. To exhibit an exhaustive analysis of the possible total of these establishments would not be a very easy task: nor on the present occasion is it a necessary one: for be they of what nature and in what number they may, the offences to which they stand exposed will, in as far as they are offences against trust, be in point of denomination the same: and as to what turns upon the particular nature of each trust, they will be of too local a nature to come within the present plan.
All these trusts might be comprised under some such general name as that of agatho-poieutic trust: (, to do good to any one).
VI. OFFENCES against the PUBLIC WEALTH. 1. Non-payment of forfeitures. 2. Non-payment of taxes, including smuggling. 3. Breach of the several regulations made to prevent the evasion of taxes. 4. Offences against fiscal trust: the same as offences against judicial and military trusts. Offences against the original revenue, not accruing either from taxes or forfeitures, such as that arising from the public demesnes, stand upon the same footing as offences against private property. 5. Offences against demosio-tamieutic trust: (, things belonging to the public; and , a steward) viz. against that trust, of which the object is to apply to their several destinations such articles of the public wealth as are provided for the indiscriminate accommodation of individuals: such as public roads and waters, public harbours, post-offices, and packet boats, and the stock belonging to them; market-places, and other such public buildings; race-grounds, public walks, and so forth. Offences of this description will be apt to coincide with offences against agatho-poieutic trust as above, or with offences against ethno-plutistic trust hereafter mentioned, according as the benefit in question is considered in itself, or as resulting from the application of such or such a branch or portion of the public wealth.
VII. OFFENCES against POPULATION. 1. Emigration. 2. Suicide. 3. Procurement of impotence or barrenness. 4. Abortion. 5. Unprolific coition. 6. Celibacy.
VIII. OFFENCES against the NATIONAL WEALTH. 1. Idleness. 2. Breach of the regulations made in the view of preventing the application of industry to purposes less profitable, in prejudice of purposes more profitable. 3. Offences against ethno-plutistic trust: (, the nation at large; , to enrich).
IX. OFFENCES against the SOVEREIGNTY. 1. Offences against sovereign trust: corresponding to those against judicial, prophylactic, military, and fiscal trusts. Offensive rebellion includes wrongful interception, wrongful divestment, usurpation, and wrongful investment, of sovereign trust, with the offences accessory thereto. Where the trust is in a single person, wrongful interception, wrongful divestment, usurpation, and wrongful investment cannot, any of them, be committed without rebellion: abdication and detrectation can never be deemed wrongful: breach and abuse of sovereign trust can scarce be punished: no more can bribe-taking: wrongful imposition of it is scarce practicable. When the sovereignty is shared among a number, wrongful interception, wrongful divestment, usurpation, and wrongful investment, may be committed without rebellion: none of the offences against this trust are impracticable: nor is there any of them but might be punished. Defensive rebellion is disturbance of this trust. Political tumults, political defamation, and political vilification, are offences accessory to such disturbance.
Sovereign power (which, upon the principle of utility, can never be other than fiduciary) is exercised either by rule or without rule: in the latter case it may be termed autocratic: in the former case it is divided into two branches, the legislative and the executive.** In either case, where the designation of the person by whom the power is to be possessed, depends not solely upon mere physical events, such as that of natural succession but in any sort upon the will of another person, the latter possesses an investitive power, or right of investiture, with regard to the power in question: in like manner may any person also possess a divestitive power. The powers above enumerated, such as judicial power, military power, and so forth, may therefore be exercisable by a man, either directly, propriâ manu; or indirectly, manu alienâ.*** Power to be exercised manu alienâ is investitive, which may or may not be accompanied by divestitive. Of sovereign power, whether autocratic, legislative, or executive, the several public trusts above mentioned form so many subordinate branches. Any of these powers may be placed, either, 1. in an individual; or, 2. in a body politic: who may be either supreme or subordinate. Subordination on the part of a magistrate may be established, 1. By the person's being punishable: 2. By his being removable: 3. By the orders being reversible.
X. OFFENCES against RELIGION. 1. Offences tending to weaken the force of the religious sanction: including blasphemy and profaneness. 2. Offences tending to misapply the force of the religious sanction: including false prophecies, and other pretended revelations; also heresy, where the doctrine broached is pernicious to the temporal interests of the community. 3. Offences against religious trust, where any such is thought fit to be established.
XI. OFFENCES against the NATIONAL INTEREST in general. 1. Immoral publications. 2. Offences against the trust of an ambassador; or, as it might be termed, presbeutic trust. 3. Offences against the trust of a privy-counsellor; or, as it might be termed, symbouleutic trust. 4. In pure or mixed monarchies, prodigality on the part of persons who are about the person of the sovereign, though without being invested with any specific trust. 5. Excessive gaming on the part of the same persons. 6. Taking presents from rival powers without leave.
* A number of different branches of public trust, none of which have yet been provided with appellatives, have here been brought to view: which then were best? to coin new names for them out of the Greek; or, instead of a word to make use of a whole sentence? In English, and in French, there is no other alternative; no more than in any of the other southern languages. It rests with the reader to determine.
** See ch. xvii. [Limits], § iii.
*** In the former case, the power might be termed in one word, autochirous: in the latter heterochirous. (, a man's own; , a hand; , another's).
97. The reason probably why an object of the sort here in question is referred to the head of property, is, that the chief value of it arises from its being capable of being made a source of property in the more ordinary acceptations of the word; that is, of money, consumable commodities, and so forth.
99. The above hints are offered to the consideration of the few who may be disposed to bend their minds to disquisitions of this uninviting nature: to sift the matter to the bottom, and engage in the details of illustration, would require more room than could in this place be consistently allowed.
101. Imagine what a condition a science must be in, when as yet there shall be no such thing as forming any extensive proposition relative to it, that shall be at the same time a true one: where, if the proposition shall be true of some of the particulars contained under it, it shall be false with regard to others. What a state would botany, for example, be in, if the classes were so contrived, that no common characters could be found for them? Yet in this state, and no better, seems every system of penal law to be, authoritative or unauthoritative, that has ever yet appeared. Try if it be otherwise, for instance, with the delicta privata et publica, and with the publica ordinaria, and publica extra-ordinaria of the Roman law.* All this for want of method: and hence the necessity of endeavouring to strike out a new one.
Nor is this want of method to be wondered at. A science so new as that of penal legislation, could hardly have been in any better state. Till objects are distinguished, they cannot be arranged. It is thus that truth and order go on hand in hand. It is only in proportion as the former is discovered, that the latter can be improved. Before a certain order is established, truth can be but imperfectly announced: but until a certain proportion of truth has been developed and brought to light, that order cannot be established. The discovery of truth leads to the establishment of order: and the establishment of order fixes and propagates the discovery of truth.
* See Heinecc, Elem. p. vii, § 79, 80.
108. I mean, that retaliation is capable of being applied in the cases in question, not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only in some individual instance of each species of offence.
111. It seems to be from their possessing these three last properties, that the custom has arisen of speaking of them, or at least of many of them, under the name of offences against the law of nature: a vague expression, and productive of a multitude of inconveniences. See ch. ii. [Principles adverse] xiv. note.
112. Because the person, who in general is most likely to be sensible to the mischief (if there is any) of the offence, viz. the person whom it most affects, shows by his conduct that he is not sensible of it.
115. Among the offences, however, which belong to this class there are some which in certain countries it is not uncommon for persons to be disposed to prosecute without any artificial inducement, and merely on account of an antipathy, which such acts are apt to excite. See ch. ii. [Principles adverse] xi.
116. See note 1. in the preceding page. [In this edition, note 112.—Econlib Editor.]
121. And the constitutional branch, what is become of it? Such is the question which many a reader will be apt to put. An answer that might be given is—that the matter of it might without much violence be distributed under the two other heads. But, as far as recollection serves, that branch notwithstanding its importance, and its capacity of being lodged separately from the other matter, had at that time scarcely presented itself to my view in the character of a distinct one: the thread of my enquiries had not as yet reached it. But in the concluding note of this same chapter, in paragraphs xxii. to the end, the omission may be seen in some measure supplied.
122. Under the Gentoo and Mahometan religions, the interests of the rest of the animal creation seem to have met with some attention. Why have they not universally, with as much as those of human creatures, allowance made for the difference in point of sensibility? Because the laws that are have been the work of mutual fear; a sentiment which the less rational animals have not had the same means as man has of turning to account. Why ought they not? No reason can be given. If the being eaten were all, there is very good reason why we should be suffered to eat such of them as we like to eat: we are the better for it, and they are never the worse. They have none of those long-protracted anticipations of future misery which we have. The death they suffer in our hands commonly is, and always may be, a speedier, and by that means a less painful one, than that which would await them in the inevitable course of nature. If the being killed were all, there is very good reason why we should be suffered to kill such as molest us: we should be the worse for their living, and they are never the worse for being dead. But is there any reason why we should be suffered to torment them? Not any that I can see. Are there any why we should not be suffered to torment them? Yes, several. See B. I. tit. [Cruelty to animals]. The day has been, I grieve to say in many places it is not yet past, in which the greater part of the species, under the denomination of slaves, have been treated by the law exactly upon the same footing as, in England for example, the inferior races of animals are still. The day may come, when the rest of the animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor.* It may come one day to be recognized, that the number of the legs, the villosity of the skin, or the termination of the os sacrum, are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or, perhaps, the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day, or a week, or even a month, old. But suppose the case were otherwise, what would it avail? the question is not, Can they reason? nor, Can they talk? but, Can they suffer?
* See Lewis XIV's Code Noir.
124. I say nothing in this place of reward: because it is only in a few extraordinary cases that it can be applied, and because even where it is applied, it may be doubted perhaps whether the application of it can, properly speaking, be termed an act of legislation.
131. In certain countries, in which the voice of the people has a more especial control over the hand of the legislator, nothing can exceed the dread which they are under of seeing any effectual provision made against the offenses which come under the head of defamation, particularly that branch of it which may be styled the political. This dread seems to depend partly upon the apprehension they may think it prudent to entertain of a defect in point of ability or integrity on the part of the legislator, partly upon a similar apprehension of a defect in point of integrity on the part of the judge.
On occasions like this the legislator should never lose sight of the well-known story of the oculist and the sot. A countryman who had hurt his eyes by drinking, went to a celebrated oculist for advice. He found him at table, with a glass of wine before him. 'You must leave off drinking,' said the oculist. 'How so?' says the countryman. 'You don't, and yet me thinks your own eyes are none of the best.'—'That's very true friend,' replied the oculist: 'but you are to know, I love my bottle better than my eyes.'
136. I do not mean but that other motives of a less social nature might have introduced themselves, and probably, in point of fact, did introduce themselves, in the progress of the enterprise. But in point of possibility, the motive above mentioned, when accompanied with such a thread of reasoning, is sufficient, without any other, to account for all the effects above alluded to. If any others interfere, their interference, how natural soever, may be looked upon as an accidental and inessential circumstance, not necessary to the production of the effect. Sympathy, a concern for the danger they appear to be exposed to, gives birth to the wish of freeing them from it: that wish shows itself in the shape of a command: this command produces disobedience: disobedience on the one part produces disappointment on the other: the pain of disappointment produces ill-will towards those who are the authors of it. The affections will often make this progress in less time than it would take to describe it. The sentiment of wounded pride, and other modifications of the love of reputation and the love of power, add fuel to the flame. A kind of revenge exasperates the severities of coercive policy.
138. But suppose the dictates of legislation are not what they ought to be: what are then, or (what in this case comes to the same thing) what ought to be, the dictates of private ethics? Do they coincide with the dictates of legislation, or do they oppose them, or do they remain neuter? a very interesting question this, but one that belongs not to the present subject. It belongs exclusively to that of private ethics. Principles which may lead to the solution of it may be seen in A Fragment on Government, p. 150 Lond. edit. 1776—and p. 114, edit. 1823.
139. If we may believe M. Voltaire,* there was a time when the French ladies who thought themselves neglected by their husbands, used to petition pour étre embesoignèes: the technical word, which, he says, was appropriated to this purpose. This sort of law-proceedings seems not very well calculated to answer the design: accordingly we hear nothing of them now-a-days. The French ladies of the present age seem to be under no such difficulties.
* Quest. sur l'Encyclop. tom. 7. art. Impuissance.
140. A woman's head-dress catches fire: water is at hand: a man, instead of assisting to quench the fire, looks on, and laughs at it. A drunken man, falling with his face downwards into a puddle, is in danger of suffocation: lifting his head a little on one side would save him: another man sees this and lets him lie. A quantity of gunpowder lies scattered about a room: a man is going into it with a lighted candle: another, knowing this, lets him go in without warning. Who is there that in any of these cases would think punishment misapplied?
141. The word law itself which stands so much in need of a definition, must wait for it awhile (see § 3): for there is no doing every thing at once. In the mean time every reader will understand it according to the notion he has been accustomed to annex to it.
142. In most of the European languages there are two different words for distinguishing the abstract and the concrete senses of the word law: which words are so wide asunder as not even to have any etymological affinity. In Latin, for example, there is lex for the concrete sense, jus for the abstract: in Italian, legge and diritto: in French, loi and droit: in Spanish ley and derecho: in German, gesetz and recht. The English is at present destitute of this advantage.
In the Anglo-Saxon, besides lage, and several other words, for the concrete sense, there was the word right, answering to the German recht, for the abstract as may be seen in the compound folc-right, and in other instances. But the word right having long ago lost this sense, the modern English no longer possesses this advantage.
143. The word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations: an appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. The chancellor D'Aguesseau has already made, I find, a similar remark: he says that what is commonly called droit des gens, ought rather to be termed droit entre les gens.*
* Œvres, Tom. ii. p. 337, edit. 1773, 12mo.
144. In the times of James I. of England and Philip III. of Spain, certain merchants at London happened to have a claim upon Philip, which his ambassador Gondemar did not think fit to satisfy. They applied for counsel to Selden, who advised them to sue the Spanish monarch in the court of King's Bench, and prosecute him to an outlawry. They did so: and the sheriffs of London were accordingly commanded, in the usual form, to take the body of the defendant Philip, wherever it was to be found within their bailiwick. As to the sheriffs, Philip, we may believe, was in no great fear of them: but, what answered the same purpose, he happened on his part to have demands upon some other merchants, whom, so long as the outlawry remained in force, there was one proceeding against. Gondemar paid the money.* This was internal jurisprudence: if the dispute had been betwixt Philip and James himself, it would have been international.
As to the word international, from this work, or the first of the works edited in French by A. Dumont, it has taken root in the language. Witness reviews and newspapers.
* Selden's Table-Talk, tit. Law.
145. The term municipal seemed to answer the purpose very well, till it was taken by an English author of the first eminence to signify internal law in general, in contradistinction to international law, and the imaginary law of nature. It might still be used in this sense, without scruple, in any other language.
146. Of what stamp are the works of Grotius, Puffendorf, and Burlamaqui? Are they political or ethical, historical or juridical, expository or censorial?—Sometimes one thing, sometimes another: they seem hardly to have settled the matter with themselves. A defect this to which all books must almost unavoidably be liable, which take for their subject the pretended law of nature; an obscure phantom which, in the imaginations of those who go in chase of it, points sometimes to manners, sometimes to laws; sometimes to what law is, sometimes to what it ought to be.* Montesquieu sets out upon the censorial plan: but long before the conclusion, as if he had forgot his first design, he throws off the censor, and puts on the antiquarian. The Marquis Beccaria's book, the first of any account that is uniformly censorial, concludes as it sets out, with penal jurisprudence.
* See Chap. II. [Principles Adverse] xiv.
149. The Virginian Declaration of Rights, said, in the French work above quoted, to have been enacted the 1st of June, 1776, is not inserted in the publication entitled 'The Constitutions of the several independent states of America, &c.' Published by order of Congress: Philadelphia printed. Reprinted for Stockdale and Walker, London, 1782: though that publication contains the form of government enacted in the same convention, between the 6th of May and the 5th of July in the same year.
But in that same publication is contained a Declaration of Rights, of the province of Massachusetts, dated in the years 1779 and 1780, which in its first article is a little similar: also one of the province of Pennsylvania, dated between July 15th and September 28th, in which the similarity is rather more considerable.
Moreover, the famous Declaration of Independence, published by Congress July 5th, 1776, after a preambular opening, goes on in these words: 'We hold these truths to be self-evident: that all men are created equal: that they are endued by the creator with certain unalienable rights: that amongst those are life, liberty and the pursuit of happiness.'
The Virginian Declaration of Rights is that, it seems, which claims the honour of having served as a model to those of the other Provinces, and in respect of the above leading article at least, to the above-mentioned general Declaration of Independence. See Recherches, &c., i. 197.
Who can help lamenting, that so rational a cause should be rested upon reasons, so much fitter to beget objections, than to remove them?
But with men, who are unanimous and hearty about measures, nothing so weak but may pass in the character of a reason: nor is this the first instance in the world, where the conclusion has supported the premises, instead of the premises the conclusion.