Full text of "An Introduction to the Principles of Morals and Legislation"

See other formats

Google

This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project

to make the world's books discoverable online.

It has survived long enough for the copyright to expire and the book to enter the public domain. A public domain book is one that was never subject

to copyright or whose legal copyright term has expired. Whether a book is in the public domain may vary country to country. Public domain books

are our gateways to the past, representing a wealth of history, culture and knowledge that's often difficult to discover.

Marks, notations and other maiginalia present in the original volume will appear in this file - a reminder of this book's long journey from the

publisher to a library and finally to you.

Usage guidelines

Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. Public domain books belong to the
public and we are merely their custodians. Nevertheless, this work is expensive, so in order to keep providing tliis resource, we liave taken steps to
prevent abuse by commercial parties, including placing technical restrictions on automated querying.
We also ask that you:

+ Make non-commercial use of the files We designed Google Book Search for use by individuals, and we request that you use these files for
personal, non-commercial purposes.

+ Refrain fivm automated querying Do not send automated queries of any sort to Google's system: If you are conducting research on machine
translation, optical character recognition or other areas where access to a large amount of text is helpful, please contact us. We encourage the
use of public domain materials for these purposes and may be able to help.

+ Maintain attributionTht GoogXt "watermark" you see on each file is essential for in forming people about this project and helping them find
additional materials through Google Book Search. Please do not remove it.

+ Keep it legal Whatever your use, remember that you are responsible for ensuring that what you are doing is legal. Do not assume that just
because we believe a book is in the public domain for users in the United States, that the work is also in the public domain for users in other
countries. Whether a book is still in copyright varies from country to country, and we can't offer guidance on whether any specific use of
any specific book is allowed. Please do not assume that a book's appearance in Google Book Search means it can be used in any manner
anywhere in the world. Copyright infringement liabili^ can be quite severe.

About Google Book Search

Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers
discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web

at |http: //books .google .com/I

■

. I

i^vl

X/^'^-'Iilc*'

->* *'

300150518N

%•;■•♦

/) 1^^ 4'^- Vh.. /:''.

BENTHAM'S
INTRODUCTION TO THE PRINCIPLES

MORALS AND LEGISLATION.

INTRODUCTION

TO THE

PRINCIPLES

MORALS AND LEGISLATION.

JEREMY BENTHAM, ESQ,

BBUCHB^ OF UNCOUi'S INN ; AKB LATE OF
QUBBN's C0LLE6E, OXFORD, M.A.

IN TWO VOLUMES.

A NEW EDITION, CORRECTED BY THE AUTHOR.

VOL, II.

LONDON:

PRINTED FOR W. PICKERING,

UNCOLN'b-INN FIBLDt;

AKD

B. WILSON^ ROYAL EXCHANGE.

1828.

THB BIB^ BDimON OF TH1!» WORIt WAS rUlNTED

IK THB TBAB 17*80;

AND FIRST PUBLISHED IN 1789.

B. Bensley, Bol^ e««r^ Fleet Street.

CONTENTS.

chap; xiiL

Cases unmeet /or punishment.

§ 1. General view of cases unmeet for punishment

Page

1 HB end of law is, to augment happiness I

But punishment is an evil .; ; ib.

.What concerns .the end, and several other topics, relative'
to punishment, dismissed to another work ib.

Concise view of the ends of punishment 2

ThertCure. ought not to be admitted ib.

. 1. Wher« .gnamdUtt i ; . , 3

2. Ineffieadotu ,...».... ib.

3. .Unprofitable *. . . * # ib.

4. Or needless ib.

§ 2. Cases in which puniskment is groundless.

1. Where, there has never been aiii/ mischief : as in the case of coRsent ib.

2. Where the. mischief was outuw^hed: as in prsoMrtion against

caJUawd'^y and the exercise of ^^ofvaers 4

3. —or will, for a certainty, be ruroi -by compeMotiim ib.

Hence the favours shown to the offences of responsible
offenders : such as umple mercantile frauds 5

§ 8. Cases in which punishment must be inefficacious.

1. Where the penal provision comes too late: as in l.An ex-post-facto

law. — 2. An uUra-l^al sentence ib.

2. Or is not made knoum : as in a law not sufficiently promulgated .... 6

3. Where the wiU cannot be deterred from any act, as in, [a] Infamcy ib.

[b] Insanity ib.

. • • • • '

[c] Iv^miattion ib.

In infancy and intoxication the case con. hardly be proved to
come under the rule * 7

The reason for not punishing in these $hree cases is com-
monly put upon a wrong footing ib.

VOL. II. c

• •

n ' CONTENTS.

Page

4. Or not from the individual act in question^ as in, 7

[a] UfunUntumality 8

[h] Ufwotucioumess .......••'.. •....««.... ib.

[c] MusupfNMoZ • ib.

5. Or is acted on by an opposite superior Jvree: as by, ib.

[a] Pkytical danger •*.....•••. « 9

[b] Threatened mischief ib.

Why the influence at the motal and reUgiims sanctions is not

mentioned in the same viaw •• • . • I * . . ib.

6.— or the bodily organs caxmotfeUow its detenninatum : as under p^ysi-
ad eommM^n or res^rmM ..•«.« »....•......•.•••«.. ib.

§ 4. Cases where punishment is unprofitable.

1. Where^ in the sort of case in question* the puaisbment would pro-
duce more evil than the offesce would .«* » 10

Bvil producible by a jwrnsfeflMnfr— its four brandies— vis. [a] Restraint ib.

\b]. Apprehmdon •...••».•»»•«.•..••••»•••*•••»• ib.

[c] sufferance «...•« ...•••k^...... 11

[d} Dmvatioe evils. •••«•• « t. ib.

The cfU of the offence, being different according to the nature of the
ofGence, cannot be represented here Ib.

3v»-Or, in. the individual case ia question: by reason of 12

[a] The multitude of delinquents ib.

[b] The mfoe of a dtKn^fumf^ service •.....•• ib.

[c] The dupisasurs of the p40pk ••«...•• ->.. ib*

[d] The dfapteaiwre of fareigii pown • ..«•... ib*

I 5. Cases where punishment is needless.

1. Whare the miachief is to be prevented at a cheaper rate : at by in« *
Struction « • ».••••.. 13

CHAP. XIV.

Of the Proportion between punishments and offences.

Hecapitulatiott ..•••.. • 14

Four o^'ectt of punishment ib.

1st Object— to prevent all offences • . • ib.

2d Object-^to prevent the vxrrst ib.

3d Object— to keep down the ndsdu^ 15

4th Object— to act at the least expense ib.

mim

t^m^mi

mmmmmmmtmf'ifmmHm^fmiii'iffiifmmt

mtmtmm

COl^TENTB. ill

Page

Rules otproportum betweea p^niikmaiiU and offences • . • 15

The sames rules applicable to motives in general ib.

Rule I. •—OhAm^ the piv^t of the offence • ib.

Prcfit may be of any other kdnd, as well as pecuniary .... 16
Iippippriety of the notion that the prntuhmaU tmghl n^ <9 mh

creoie wfth the temptation .,•, .,,..•••• ib.

The. propriety of taking the strength of the temptation for a ground of

abatement, no objection to this rule «••• •••«. 19

Rule 2.— Venture more against a great offence than a email one • • % • 19

£i|unple.----ifiom<2tairim and c(W!iMy .••..»..••..• ib.

Rule 3.— Cause the least of two offences to be preferred .....••.•«••> 20

Rule 4.— Punish for each particle of the mischief ., , ,. ib.

£san^e,<-»In blows given» and money stolen » .••,••.. . ib.

Rule 5.— Punish in no degree without special reason ....••»» 21

Rule 6.^— Attend to circumstances tuftuencing-eenribiUty • . . . « ibu

Coqupanftiv^ v4ew of the above rules * ••.*,. 28

Into the account of the value of a punishment^ niust be taken its 4e-

fiden.cy in point of eertamty and proximity . . ^ ib.

Also, into the account of the nwcAi^, and prgfft of the offmee, the mis-
chief and profit of ^tfterolfences of the same ^^iNt 23

Rule 7.*-Want of certainty must be made up in wigidtudt .«.«..•• 24

Rule 8. — So also want of proximity .*.. » , .^....25

Rule 9. — For acts indicative of a habit, punish as for Use habit .... ib.

The remaiwng rales are of less importance • . . . . ib.

Rul^ 10«— For the sake of ^ftto^'ty, increase in quantity ib.

Rule 11.— rP^rticularly for a monii ietum ..•• 26

K punishment appUed by Mtyef moral leuonfifhttt ••••••..•• ib.

Example. — ^In ample corporal i i yuriai ib.

Sample. — ^Jn mUUory laws ib.

Rule 12.-*>Attend to circuidstances which may render punl^ment

uttprcfitaJble ' J' P * * ••...».. ....»...* ib.^

Rule 13/— For ««pttcitj^V sake, small disproportions may be neglected 137
Proportionality carried very for in the present work^-wfay 28
Auxiliary force of the fhftieal, moral, and reUgioue mmctionSf not here

allowed for-r:;why .«•« • ib.

Recaj^tulatioii 29

The nicety here observed vindicated from the charge of hkutiUty . . 30

iv CONTENTS.

CHAP. XV.

Of the Properties fo he givewr to a lot ofpunMment.

Page

Properties are to be governed by proportum .....*..* 33

Property- l.-FtfrkWiey- 4**4....*..; :......*.« ib.

Property 2. EquabUity * ; 34

PunishmentowbiehaFe apt -to be deficient in this respect 36

Property 3. CommennirdbiUty to other putkisbments - ib.

How two lots of punishment may be rendered perfectly commcn-

surable ■.....•• « ....*• 37

Property 4. Charaetervticalnesa .......... 38

The mode of punishment the most eminently characteristic, is that

of 'retaUatim '. • 39

Property 5. — Exenq^lairity « • 40

The most effectual way of rendering a punishment exemplary is

by means of amdogy .> ', 41

Property 6.- Frugtdity % ..; ; ib.

Frugality belongs in perfection to pecuniary pumtkment ^ . . . . 42

Exemplarity tokdjhigality in What they differ and agree ib.

Other-properties of inferior importance 43

Property 7, Subserviency to reformation ib.

—applied to offences originating in iU-mll 44

— ^to offences originating in indolence joined to pecuniary inUrett .... 45

Property 8. Efficacy with respect to disablement ; ib.

— ^is most conspicuous in capital punishment 46

Other punishments in which it is to be found ib.

Property 9. Subserviency, to compensation 47

Property 10. Popularity , ib.

Characteristicalness renders a punishment, 1. memorable:

2, esBcn^lary: 3. papular 48

Miscki^s resulting from the unpopularity of a punishment<^*diseon(Mt

among the people, and weakneb in the law 49

This property supposes a pre/udies which the legislature ought to cure ib.

Property 11. Uemissibility 50

To obtain all these properties, punishments must be mixed . . . .^ . . . 53

The foregoing properties recapitulated ..« 54

Connexion of this with the ensuing chapter • . • . , 55

CONTENTS. V

CHAP. XVI.

Division of offences,

§ 1. Classes of offences.

Page

Method pursued in the foUowini^ division 56

Bisiinction between what are ofFences and what ought to be ib.

No act aught iobe an offence but what is detrimental to the eommunity 58
To be so, it must be detrimental to some one or more of its members ib.

These may be astignable ornot ib.

Persons assignable, how , ib.

If assi^able, the o/fender himself, or othert 59

Class 1. Private offences .i ib.

Class 2. Semi-puhlie offences ib.

Limits between private, semi-public, and public offences,

are, strictly speakings, undistinguishable «... 60

Class 3. Se^-regarding offences 61

Cl^s'4. PMie offences ' ib.

Class 5. "MuUiform offences, viz. 1. Offences by falsehood. 2. Offences

ogainMt trust ib.

The imperfections of languag^e an obstacle to arrangen^ent ib.

Irregularity of this class 63

. —-which could not be avoided on ajoy other plan ib.

§ 2. Divisions and sub'divisions.

Divisions of Clous 1. 1. Ofllences against person, 2 — Property.
3 — Reputation, 4 — ConditUm, 5 -^Person and reputation, 6 — Person

and property 53

In what manner pleasure and pain depend upon the reilation

. . a man bears to exterior objects s, . , 64

Divisions of Class 2. 1. Offences through calamty 68

Sub-divisions of offences through calamity, dismissed .*. . . 70

3. Offences of mere deUhquency, how they correspond with the divi-
sions of private offence ib.

Divisions of Class 3. coincide with those of Class 1 71

Divlaions of C/ao4 72

Exhaui^ve method departed'from . . • ib.

Connexion af the nine first diviaons one with another 73

Connexion of offences against reUgion with the foregoing ones .... 83
Connexion of offences against the national interest in general with the
rest 4 , , 85

VI COVTeNTfl.

Page

Sub'divisions of Oais 5. enumerated • 85

1. Di?ision8 of offences by fabehood 86

Offences by falsehood, in what they agree with one another 87

— in what they differ ,, ib«

Sub'divisions oi offences by falsehood wt determined by the dirisions

of the preceding classes • ,...•••...» 88

Offences of this class, in some instances, change their names ; in

others, not *•• •« 89

Ktrmty what 99

Power and right, why no complete definition is here given

of them .••• ••..«.••• ib.

Offences against trwU condUum% and proferiff, why ranked under

separate diyisions .«.....«..« .^...^«^.« ...•,. ,\* 9«ft

Offences against trttsi — their connexion with each other 10#

Pro^a&by tXL tr%»UM dismissed to Class 3. ..« 120

The sub^divisions of offences eigmiinsi trust are also determined by

the divisions of the preceding classes • . • • , • 121

Connexion between offences bjf fabehood and offencea ^gemai trust ib.

Generaqfciassl,

Analysis into genera pursued no further ^an Class 1 122

Offences against an individual may be simple in iheir eflbcts or

complex • • 123

Offences against personr-^their genera «....• • . ib.

Offences against repuiatUm ^ • . • 127

Offences against /wt^per^ • 130

Payment, what 132

Offences against /i«rMn and reputation 140

Offences higjsxosX person and property 142

Offences against con^i#toii.«-Conditions domestic or cMi 144

2>Miie«tic conditions grounded on natwred relationships 145

BelationS'-'-two result from every two objects 146

Domestic relations which are purely of legal isutituiian 1^

Offences touchingthe condtUonci a master 154

Various modes of servitude 157

Offences touching the condition of a servant • 158

Guardianship^ what-«-Neccssity of the institution « . • 162

Dtcraliofi to be given to it ^ 1^6

Powers that may, and dn^iss that ou^t to be, annezed to it .... 167

O^excei touching the rmdiifim of a giiflrliuifi 169

Offences touching the condition of a ward • . . , 172

CONTENTS. VU

P«B«i

OfltoceB tOQcbinf the coDdiiien of apaml 179

Offencct touchiDg tlie,^Ual cm^iim 176

Oondition of a huAand. — Paeen, dutia, aud r^lkti, that na; be an*

neied to it 183

<}^nc«itoucbiag tbe cooditioa of a hiubanil IM

Ofiencei touching the coodition of a inf« 189

Gvit condition* igj

( 4. Advantage* of the praent method.

General idea of the mahai here punned 212

Itaadamtaga 21G

— 1. It is conveiiient fur the app/thta»/m and Um ■umry . . ...... ib.

— 2. It gives room for (tMni propositions 217

— 3. It points out the nuiDfi of thelms 319

—4. It ii alike applicable to the law* of all tuluH 220

% 5. Charactert of the ctattes.

GiaraeUrt of the claEMB, how deduciUe from the above method , . 331

Charactere otctaa 1 ib.

Characters of daa 3. 234

Characters of dui 3 22fi

Characters of eliut 4 238

CbanictersofeliuiS 330

CHAP. XVII.

Of the limits of the penal hranch ofjurUprvdmce-

( I. JUmili between private ethict and the art of legulatwn.

Use of this chapter 332

EtUciin general, what 334

Prioofa ethics ib.

The art of gavtrmiBU ! that is, of ItgMUvm and nrimwu'tfratiim ib.

JutercBta of the infeni/r aninuii improperij neglected in

legislation ■ 235

Art of edueotioA , 236

Etbicteshibittherulesof, l.Pnidenes. 2.Pnii%. 3. BtH^catct 237

Pmbi^ and beneficence bow (hey connect with pradence 333

Every act which is a pruper ottject of ethics is uotof legislation .. 239
The IwuU between the provinces of privau ethia and li^iilolian,
marked ODt by the cases unmeet lor punisbnunt 210

• »•

Vm CONTENTS.

Page

1. Neither ought to apply where punishment is groundleu 241

2. How far private ethics can apply in the cases where punishment
would be inefficacious • ib.

How far, where it would be wtprqfUable ....'. 243

Which it may be, 1 . Although confined to the guilty 244

2. By enveloping the innocent . . , , 247

Legislation how far necessary for the enforcement of the dictates

of prudence 248

—Apt to go too far in this respect .••• 251

— Particularly in matters of religion ib.

— How far necessary for the enforcement of the dictates of probity 253

—of the dictates of beneficence . . , . , » , 254

Difference between private ethics and the art of legislation re-

eapiiulated 25S

§ 2. JuruprtufencCj its branches.

Jurisprudence, expository — censorial ^ 256^

Expository jurisprudence, authoritative — unauthoritative 257

Sources of the distinctions yet remaining ib.

Jurisprudence, local — universal , 258

—4ntemal and international 260

Internal jurisprudence, national and provincial^ local or particular . . 262

Jurisprudence, ancient — living 263

Jurisprudence, statutory — customary Tt 265

Jurisprudence, civil — penal — criminal ib.

ijucstion, concerning the distinction between the civil branch and

the penal, stated . . , ib.

I. Occasion and purpose of this concluding note 266

II. By a law here is not meant a statute 267

III. Every law is either a command, or a revocation of one .... ib.

IV. A declaratory law is not, properly speaking, a law ib.

V. Every coercive law creates an offence 268

VI. A law creating an offence, and one appointing punishment

are distinct laws ib.

VII. A discoercive law can have no punitory one appertaining to

it but through the intervention of a coercive one ib.

VIII. But a punitory law involves the simply imperative one it

belongs to , , . , 269

IX. The simply imperative one might therefore be spared,

but for its expository matter ib.

X. Nature of such expository matter ib.

•

CONTENTS. IX

Page
XI. The rastness of its comparative bulk is not peculiar to

legislative Kfommands , 270

XII. The same mass of ei^pository matter may serve in com-
mon for many law6 ib«

XIII. The imperative character essential to law, is apt to be con-

cealed in and by expository matter 271

XIV. The concealment is favoured by the multitude of indireet

forms in which imperative matter is capable of being

couched •..••»• ib.

XV. Number and nature of the Unu in a code, how determined . . 272
XVI. General idea of the UmUs between a civil apd a penal code ib.

XVII. Contents ofactvi/code 273

XVIII. Contents of a penal code ib.

XIX. In the Code Frederic the imperative character is almost lost

in the expository matter ••.*..•••..« ib.

XX. So in the Boman law 274

XXI. In the barbarian codes it stands conspicuous ib.

XXII. Constitutional code, its connexion with the two others .... ib.
XXIII. Thus the matter of one law may be divided among aU

three codes ^ 275

XXIV. Expository matter a great quantity of it exists everywhere,

in no other form than that of common or jfidieiary law . • ib.
XXV. Hence the deplorable state of the science of legislation,

considered in respect of its form 276

XXVI. Occasions aflfording an exemplification of the difficulty as
well as importance of this branch of science ;— attempts
to Umit the powers of supreme representative UgiUatures . . ib.
XXVII. Example : American declaratiau of rights .,.•... 277

VOL. II.

INTRODUCTION

TO TUB

PRINCIPLES OF MORALS AND LEGISLATION.

CHAP. XIII.

§ I. GENERAL VIEW OF CASES UNMEET FOR PUNISHMENT.

The general objfect which all laws have, or The end <rf
ought to have, in common, is to augment the augment
total happiness of the community ; and therefore,
in the first place, to exclude, as far as may be,
every thing that tends to subtract from that hap-
piness : in other words, to exclude mischief.

II.
But all punishment is mischief : all punishment Bat ponisii.
in itself is evil. Upon the principle of utility, if evij.
it ought at all to be admitted, it ought only to
be admitted in as far as it promises to exclude
some greater evil *

* What follows, relative to the subject of punishment what ood-

ought regularly to be preceded by a distinct chapter on the ^"g^^^g^.

ends of punishment. But having little to say on that par- veral other

ticular branch of the subject, which has not been said before, ti^ to pu-

it seemed better, in a work, which will at any rate be but 'ji**»«?«n^

' ' ^ ^ / dismiased lo

too voluminous, to omit this title, reserving it for another, another
hereafter to be published, intituled The Theory of Punish- ^^ '

VOL. II. B

^ CASES UNMEET FOR PUNISHMENT.

Chap, fw-w

xni. ^"*

r^^^^^ It is plain^ therefore, that in the following

beadnStted^ cases punishmcnt ought not to be inflicted.

■ I I - ^■■ ■■ ■ ■ I ■ ■ ■ ■ ■ — ^. I ■ ■ » ■■ ■■■■■■.■■■.■■■■ -■--■,■■■■»_ — ■* ■ M ■ —

men^ *. To the same work I must refer the analysis of the
several possible modes 6f punishment^ a particular and mi-
nute examination of the nature of each, and of its advantages
and disadvantages, and various other disquisitions, which
did not seem absolutely necessary to be inserted here. A
very few words, however, concerning the ends of punishment,
can ^scarcely be dispensed with.
Concise q^Q immediate principal end of punishment is to controul

ends of po- action. This action is either that of the offender, or of
nishment. ^^^j.g . ^^^^ ^^ ^^^ offender it controiuls by Sts inftnence,

either on his Hvill, in which case it is said to operate in th^
. way oi reformation } or on his physical power, in which case
it is said to operate by disablement : that of others it can in-
fluence no otherwise than by its ini^uence over their wills ;
in which ca^e it is said to operate in th^ way of example, A
kind of collateral end, which it has a natural tendency to
answer, is that of affording a pleasure or satisfaction to the
party injured, where there is one, and, in general, to parties
whose ill-will, whether on a self-regarding account, or on the
account of sympathy or antipathy, has been excited by the
offence. This purpose, as far as it can be answered gratis^
is a beneficial one. But no punishment ought to be allotted
merely to this purpose, because (setting aside its efiects-in
the way of controul) no such pleasure is ever produced by
punishment as can be equivalent to the pain. The punish-

* This is tbe Svork which^ from the Author's papers, has since been ^h-
tished by Mr. Domont in 'French, in company with The Theory rf Reward
added to it, for the purpose of mutual illustration. It is in contemplation to
publish them both in English, from the Author's manuscripts, with the benefit
of any amendments that have been made by Mr. Dumout.

CASES UHHEET fob PUNISHBfENT. 3

1. Where it b groundkaa ; vhere there is no <^'^'-
miscluef for it to preve»t ; the oat not bang mis- >^ — '
■eUevoaa upon the whole. groondieM.

■S. Where it must be m^cacious : where it ». ineffie*
caBDOt act so as to prevent lAie mischief.

3. Where it is ta^ro^abU, or too erpearioe; '■ ""p'*-
where the misciaef it would produce would he
greater than what it prevented.

4. Where it is needless : where the mischief may 4. or need-
be prevented, or cease of itself, without it : that

is, St a. cheaper rate.

§. 2. Cases in which punishment is groundless.
These are.

1. Where thece has never been any mischief: i.wiien
.where no misclueaf has been produced to any body ^e',^
by the act in question. . Of this number are those ^T^
in which the act was such as might, on somej^^^^'

ment, Iiowever, which is allotted to the other purpose, ougb^
as far as it can be done without expence, to be acconnno-
dated to this. Satisfaction thus administered to a party in-
jured, in the shape of a dissocial pleasure *, may be stiled a
vindictive satisfaction or compensation t as a compensation,
administered in tbe shape of a self-regarding profit, ot stock
of [Measure, may be stiled a lucrative one. See B. 1. tit. vi.
[CompenaalionJ .Example is the most important end of all,
in proportion as the number of the persons under temptation
to offend is to one.

* St»ct). I. [Motires.]

4 CASES UNMEET FOR PUNISHMENT.

Chap. occEsions, be mischievous or disagreeable, but the
^— ^^ person whose interest it concerns gave his consent
to the performance of it *. This consent^ pro-
vided it be free, and fairly obtained *, is the best
proof that can be produced, that, to the person
who gives it, no mischief, at least no immediate
mischief, aipon the whole, is done. For no man
can be so good a judge as the man himself, what
it is gives him pleasure or displeasure.

ft. Where 2. Where the mischief was outweighed : al-
wM ou^ *^ though a mischief was produced by that act, yet
iTprecau-" ^^ Same act was necessary to the production of a
^£mC* benefit which was of greater value f than the
Mercbeof ^^schicf. This may be the case with €«iy thing
powers. j^Q^ j^ ^Qjjg jj^ tljg ^a^y Qf precaution against

instant calamity, as also with any thing that is
done in the exercise of the several sorts of powers
necessary to be established in every community, to
wit, domestic, judicial, military, and supreme J:

VI.

3. —or wUi, 3. Where there is a certainty of an adequate
taintybe compeusatiou : and that in all cases where the
wmpenai- offeucc cau be committed. This supposes two
*^"* thiiigs : 1 . That the offence is such as admits

of an adequate compensation: 2. That such a
compensation is sure to be forthcoming. Of

* See B. L tit. [Justifications.] t See supra^ eh. iv. [Value.]

I See Book I. tit. [Justifications.]

CASES UNMEET FOR PUNISHMENT . <

these suppositions, the latter will be found to be a ^"■
merely ideal one : a supposition that cannot, in ' — « — '
the universality here given to it, be verified by
fact. It cannot, therefore, in practice, be num-
bered amongst the grounds of absolute impunity.
It may, however, be admitted as a ground for
an abatement of that punishmeDt> which other
conaderations, standing by themselves, would
seem to dictate*.

§ 3. Cases inwhich punishment must be inefficacious.
These are,

1. Where the penal provision is not established i- Whe™
until after the act is done. Such are the cases, praArion
1. Of an ex-post-facto law; where the legislator late: uiu,
himself appoints not a punishment till after the p^./^
act is done. 3. Of a sentence beyond the law ; ui!^.ii^ "
where the judge, of his own authority, appoints. a '*°^'*^

* This, for example, seems to have been one ^und, at Hence ihe
least, of the favour shewn by peihaps all Byatems of laws, to *^^'
such offenders as stand upon a fbotjag of responsibility: the oSbtcei
shewn, not directly indeed to the persons themselves ; but to i,]/^^'
such offences as none but responsible persons are likely to '." = ■'^'> *>
have the opportunity of enga^ng in. In particulai, this cuiiile
seems to be the reason why embezzlement, in certain cases, """''•
has not commonly been punished upon the footing of theft :
nor mercantile frauds upon that of common aharptngt-

t See tit. [Simple c

^ CASES UNMEET FOR FUNISHMENT.

CHAPrf punishment which the legislator had not ap-
^ V * pointed,

VIII.

2. Oris 2. Where the penal provision, though esta-

not made , ,

known: as bushed, is fwt convcyed to the notice of the person
sufficiently ou whoui it seexus intended that it should operate.
gated. Such is the case where the law has omitted to
employ any of the expedients which are necessary^
to make sure that every person whatsoever, wha
is within the reach of the law, be apprized of all
the cases whatsoever, in which (being in the
station of life he is in) he can be subjected to the
penalties of the law *.

IX.

3. Where 3. Where the penal provision, though it were
not be de- couveyed to a man's notice, could produce no ef-

terred fipom ' . t •

anyacv M jcct ou hitti. With rcspcct to the prcveutmg mm
' from engaging in any act of the sort in ques-

[a] Infancy, tion. Such is the case, 1 . In extreme infancy ;
where a man has not yet attained that state or
disposition of mmd in which the prospect of evils
so distant as those which are held forth by the

[b]insanity. law, has the effect of influencing his conduct. 2.
In insanity ; where the person, if he has attained
to that disposition, has since been deprived of it
through the influence of some permanent though

[c]iutoxi. unseen cause. 3. In intoaication ; where he has

cation.

been deprived of it by the transient influence of a
* See B. II. Appendix, tit. iii. [Proniulgation.]

GAiffiS UNMEET FOR PUNISHMENT.

visible cause : such as the use of wine^ or opium^
or other drugs, that act in this manner on the ner-
vous system : which condition is indeed neither
more nor less than a temporary insanity produced
by an assignable cause *.

4. Where the penal provision (although, being 4. or not

fronk the in-

conveyed to the party's notice, it might very well dividual act
prevent his engaging in acts of the sort in ques- as in.

* Notwithstanding vrhat is here said^ the cases of infancy In infancy
and intoxication (as we shall see hereafter) cannot be looked cation the*
upon in practice as afTprding sufficient grounds for absolute f*^f*?
impunity. But this exception in point of practice is no ob- proved to
jection to the propriety of the rule in point of theory. The S^J^g
ground of the exception is neither more nor less than the
difficulty there is of ascertaining the matter of fact: viz.
whether at the requisite point of time the party was actually
in the state in question ; that is, whether a given case comes
really under the rule. Suppose the matter of fact capable of
being perfectly ascertained, without danger or mistake^ the
impropriety of punishment would be as indubitable in these
cases as in any other f.

The reason that is commonly assigned for the establishing The reason
an exemption from punishment in favour of infants, insane n^^ugS?"
persons, and persons under intoxication, is either false in tl»ese three

- . cases is com*

fact, or confusedly expressed. The phrase is, that the will monly put
of these persons concurs not with the act ; that they have ^ron/foot-
no vicious will ; or, that they have not the free use of their >ng«
will. But suppose all this to be true ? What is it to the
purpose ? Not^ijdg : except in as far as it implies the reason
given in the text.

t See B. I. tit. iv. [ExempticHis] and tit. vii« [£xtenaation8.]

S CASES UNMEET FOR PUNISHMENT.

tion, provided he knew that it related to those
acts) could not have this effect, with regard to the
individual act he is about to engage in : to wit,
because he knows not that it is of the number of
those to which the penal provision relates. This

W^»"*«°-may happen, !• In the case of unintentionality ;
where he intends not to engage, and thereby
knows not that he is about to engage, in the act
in which eventually he is about to engage *.

[b] Uncon. g. In the case of unconsciousness ; where, although

sciousnc8s»

he may know that he is about to engage in the act
itself, yet, from not knowing all the material cir-
cumstances attending it, he knows not of the
tendency it has to produce that mischief, in con-
templation of which it has been made penal in

[c]Mi». most instances. 3. In the case of mis-supposal ;

•"P^ • where, although he may know of the tendency the
act has to produce that degree of mischief, he
supposes it, though mistakenly, to be attended
with some circumstance, or set of circumstances,
which, if it iiad been attended with, it would
either not have been productive of that mischief,
or have been productive of such a greater degree
of good, as has determined the legislator in such
a case not to make it penal f.

5. Or is act- 5. Where, though the penal clause might ex-
opposite su- ercise a full and prevailing influence, were it to

perior force*

« by, ., ^ !

■^ pi^

* See ch. viii. [Intentionality.] f See ch. ix. [Consciousness.}

CASES UNMEET FOR PUNISHMENT. ^

act alone, yet by the predominant influence of some ^haf.
opposite cause upon the will, it must necessarily ' — '^ — '
be ineffectual; because the evil which he sets
himself about to undergo, in the case of his not
engaging in the act, is so great, that the evil
denouiiced by ^he penal clause, in case of his
engaging in it, cannot appear greater. This may
happen, 1. In the CBse oi physical danger ; where W Phjaicai
the evil is such as appears likely to be brought
about by the unassisted powers of nature* 2. In [b] ihreat-
the case of a threatened mischief ; where it is such chief.
as appears likely to be brought about through the
intentional and conscious agency of man *.

XII.

6. Where (though the penal clause may exert a «- -7<>r the

bodily or-

full and prevailing influence over the a;/// of the gans caDnot
party) yet his physical faculties (owing to the pre- termination :

as under

* The influences of the moral and religious sanctions^ or, in Why the

other words, of the motives of love of reputation and reZigion, Jhe moral

are other causes^ the force of which may, upon particular oc- &"<^ T^y\g\'

casions, come to be greater than that of any punishment tions is not

which the legislator is able, or at least which he will think "^^tioned
'^ ^ ^ m the same

proper , to apply. These, therefore, it will be proper for him view,
to have his eye upon. But the force of these influences is
variable and different in different times and places : the force
of the foregoing influences is constant and the same, at all
times and every where. These, therefore, it can never be
^proper to look upon as safe grounds for establishing absolute
impunity : owing (as in the above-mentioned cases of infancy
and intoxication) to the impracticability of ascertaining the
matter of fact.

^^ CASES UNlifBET FOR PUNISHMENT.

^HAP. dominant influence of some physical cause) are not

^— ^/ — ' in a condition to follow the determination of the

will : insomuch that the act is absolutely inoohmr

Physical toTy. Such is the case of physical oampulsum or

compulsion • i i ^ i -a ^

or restraint, rcstrawt, by Whatever means brought about ;
where the man's hand, for instance, is pushed
against some object which his will disposes him
not to touch ; or tied down from touching some
object which his will disposes him to touch.

§ 4. Cas^ where punishment is unprofitable.

These are,

xin.
1. where^ 1. Where, on the one hand, the nature of the
o" cate'i^ ottesnce, on the other hand, that •f the punishment,
?he pinuh- ^"^^y i^ the Ordinary state of things, such, that when
producT"^^ compared together, the evil of the latter will turn
SJ^^g^ out ±0 be greater than that of the former,

ofience -v-tv

woold. ^ ^^^*

Eviiprodu- Now the evil of the punishment divides itself

S^sh^i^t into four branches, by which so many diiferent

branch^ sets of pcrsous are affected. 1 . The evil of cotr-

siraim. ^^ c^^ ^^ restraint : or the pain which it gives a man

wot to be able to do the act, whatever it be, which

by the apprehiension of the punishment he is

deterxed from doing. This is felt by those by

[b] Appre- whom the law is observed. 2. The evil of appre-

*°*"^°' hension: or the pain which a man, who has exposed

himself to punishment, feels at the thoughts of

undergoing it. This is felt by those by whom

^i^f^^^mmmmmmmmmmmmmmmmmmmmmmmmmmmmmmmKm

CASES UNMBET FOR PUHISHMSNT. 11

the law has been broken, and who feel themselves cth***-

xm.

m danger of its being executed upon them. 3. The r^TT^^
evil o{ sufferance^ : or the pain which a man feels^ «««».
in virtue of the punishment itself^ from the time
when he begins to undergo it. This is felt by
those by whom the law is broken^ and upon whom
it comes actually to be executed. 4. The pain of M Denva-
sympathy^ and the other dervoatwe evils resulting
to the persons who are in connection with the
Beveral classes of original suflferers jmt men-
tionedf. Now of these four lots of evil, the first
will be greater or less, according to the nature
of the act from which the party is restrained : the
second and third according to the nature of the
punishment which stands annexed to that ofl&nce.

XV.

On the other hand^ as to the evil of the o&nce, (The evo ot

j-i." 'n 1 x» i_ J- 1 J the offence

this wul also, of course, be greater or less, accord- beug dif-
ing to the nature of each offence. The proportion c"^^
between the one evil and the other will therefore onhc^S*
be different in the case of each particular offence, ^t^^
The cases, therefore, where punishment is unpro- p*^"***
fitable on this ground, can by no other meand be
discovered, than by an examination of each parti-
cular offence ; which is what will be the business
of the body of the work.

* See ch. v. [Pleasures and Pains.]
t See ch. xii. [Conseqnenees] iv.

^^ CASES UNMEET FOR PUNISHMENT*

Chap. yvt '

XIII. ^ ^y'

^^Z^^ 2. Where, although in the ordinary state of

^d^i*^' things, the evil resulting from the punishment is
question : by not OTeater than the benefit which is likely to

reason of " ' "^

result from the force with which it operates,
during the same space of time, towards the ex-
eluding the evil of the oflfence, yet it may hav.e
been rendered so by the influence of some occa-
sional circumstances. In the number of these

[a] The circUmstauccs may be, ] . The multitude of delin-

multitode of . . x* i • ^ t_ • -i

delinquents, qucuts at a particular juncture ; being such as
would increase, beyond the ordinary measure, the
quantum of the second and third lots, and thereby
also of a part of the fourth lot, in the evil of the

[b] The pimishment. 2. The extraordinary value of the
delinquent's scrviccs of somc ouc delinquent ; in the case where

the effect of the punishment would be to deprive
the community of. the benefit of those services.

[c] The dig- 3. The displeasure of the people ; that is, of an

pleasure of ^ ^ ■* *

tbe people, indefinite number of the members of the same
community, in cases where (owing to the influence
of some occasional incident) they happen to con-
ceive, that the offence or the. offender ought not
to be punished at. all, or at least ought not to be

[d] The dis- punishcd in the way in question. 4. The dis-
fordgn^ ° pleasure 6f foreign powers ; that is, of the govern-
powers. .^^ body, or a considerable number of the members

of some foreign community or communities, with
which the community in question, is connected.

CASES UNMEET FOR PUNISHMENT. ^^

§ 5. Cases zvhere punishment is needless.

These are,
xvii:
1 . Where the purpose of puttinff an end to the i. Where

.1 Z *^*^ miachirf

practice may be attained as effectually at a is to be pre-

vcotcd *t^ &

cheaper rate : by instruction, for instance, as well cheaper

as by terror : by informing the understanding,

as well as by exercising an immediate influence

on the will. This seems to be the case with By instmc-

twn.

respect to all those offences which consist in the
disseminating pel-nicious principles in matters of
duty; of whatever kind the duty be ; whether
political, or moral, or religious. And this, whether
such principles be disseminated under, or even
tcithout, a sincere persuasion of their being bene-
ficial. I say, even xvithout : for though in such a
case it is not mstruction that can prevent the
writer from endeavouring to inculcate his prin-
ciples, yet it may the readers from adopting
them : without which, his endeavouring to incul-
cate them will do no harm. In such a case, the
sovereign will commonly have little need to take
an active part : if it be the interest oi one indivi-
dual to inculcate princiiples that are pernicious, it
will as surely be the interest of other individuals
to expose them. But if the sovereign must needs
take a part in the controversy, the pen is the pro-
pejr weapon to combat error with, not the sword.

[ w ]

CHAP. XIV.

OF THE PROPORTION BETWEEN PUNISHMENTS AND OFFENCES.

Recapituia- Wfi have Seen that the general object of all laws
is to prevent mischief ; that is to say^ when it is
worth while ; but that, where there are no other
means of doing this than punishment, there are
four eases in which it is not worth while.

Four objects Whou it %s worth while, there are four subor-

of punish-

menn dinatc designs or olgects, which, in the course of
\i& endeaviduEs to compass, as far as may be, that
one general object, a legislator, whose ^ews are
governed by the principle of utility, comes natu-
rally to prxipose >to himself.

III.

ist Object L His 'jBrst, most extensive, and most eligible

— topreveot ^, . , ^ • • -i i

«ii offences. ob|ect, IS to |Hrevent, :m as far as it is possible,
and worth while,all sorts of offences whatsoever*:
in other werds, so to manage, that no offence
whatsoevsenr may be ^committed.

IV.

sd Object— Q. Bift if a man 'must needs commit an offence
HZZ of some kind or other. IJxe next objectis to induce

* By offences I mean^ at present, acts which appear to him
to have a tendency to produce mischief.

PUNISHMENTS AND OFFSNCEfiv 1&

him to commit an offence less mischievous^ rather
than one more mischievous: m other words> to
choose always the ka&f mischievous, of two of-
fences that will either of them suit his purpose.

3. Wh6n a man has resolved upon a particular 3d object
offence, the next object is to dispose him to do ;i^ down the

• ■■•/».« • ji* • mischief*

mare mischief than is necessary to his purpose : m
other words, to do as little mischief as is con-
sistent with the benefit he has in view.

Vf.

4. The last obted; is, whatever the mischief be, ^^ ^y^^J

«l ' . ' —to act at

which it is proposed to prevent, to prevent it at ^^« ^^^

^ *■ ^ ^ * expencQ*

as cheap a rate as possible.

* VII.

Subservient to these four objects^ or p'urposes, Roies of
must be the rules or canons by which the pto- b^S^^^
portion of punishmettts* to oSbtiCes is to be^a^^ca.
governed.

VIII.
^^^^ 1- . • Rule 1.

3 . The first obje<?t, it hais been se^», is to p(re- 9"^''^|*'

_^ . the ofieoce.

* [Punishments.] The same rules (it is to be observed) The same
may be applied, with little variation, to rewards as well as ^51^^**'
punishment: in short, to motives in general, which, accord- tives m
ing as they are of the pleasurable or painful kind, are of
the nature of reward or punishment : and, according as the
act they are applied to produce is of the positive or nega-
tive kind, are stiled impelling or restraining. See ch. x.
[Motives] xliii.

l^ OF THE PROPORTION BETWEEN

c»AF. vent, in as far as it is worth while, all sorts of

XIV.

offences ; therefore.

The value of the punishment must not be less in
aw/ case than what is sufficient to outweigh that of
the profit* of the offence^.

If it be, the offence (unless some other consi-
derations, independent of the puiiishmAit, should
intervene and operate efficaciously in the cha-

Profit may * [Profit.] By the profit of an ofTence, is to be understood,
other kind, iiot merely the pecuniary profit, but the pleasure or advan-
ss well as tage, of whatever kind it be, which a man reaps, or expects

to reap, from the gratification of the desire which prompted

him to engage in the ofience %,
Impropriety It is the profit (that is, the expectation of the profit) of the
that the pu- ofience that constitutes the impeUing motive, or, where there
mshmeot ^^^ several, the sum of the impelling: motives, by which a

ought not to ' r & » j

increase man is promted to engage in the offence. It is the punish-
temptation, ™®°*^ that is, the expectation of the punishment, that consti-
tutes the restraining motive, which, either by itself, or in
conjunction with others, is to act upon him in a contrary
direction, so as to induce him to abstain from engaging in
t£e offence. Accidental circumstances apart, the strength
of the temptation is as the force of the seducing, that is, of
the impelling motive or motives. To say then, as authors
of great merit and great name have said that the punishment
ought not to increase with the strengtli of the temptation, is
as much as lo say in mechanics, that the moving force or
momentum of the power need not increase in proportion to
the momentum of the burthen,

t Beccaria, dei diletti, § 6. id. trad. par. Morellet, § 23.

X See ch. x. [Motires] § 1.

PUNISHMENTS AND OFFENCES.

racter of tutelary motives*) will be sure to bei
committed notwithstanding f: the whole lot of

* See ch. xi. [Dispositions] xxix.

t It is a well-known adage, though it is to be hoped not a
true one, that every man has his price. It is commonly
meant of a van's virtue. This saying, though in a very
different sense, was strictly verified by some of the Anglo-
saxon laws : by which a fixed price was set, not upon a man's
virtue indeed, but upon his life: that of the sovereign him-
self among the rest. For 200 shillings you might have killed
a peasant : for six times as much, a nobleman : for six-and-
thirty times as much you might have killed the king|. A
king in those days was worth exactly 7>20O shillings. If
then the heir to the throne, for example^ grew weary of
waiting for it, he had a secure and legal way of gratifying
his impatience : he had but to kill the king with one hand,-
and pay himself with the other, and all was right. An earl
Godwin^ or a duke Streon, could have bought the lives of a
whole dynasty. It is plain, that if ever a king in those days
died in his bed, he must have had something else, besides
this law, to thank for it. This being the production of a
remote and barbarous age, the absurdity of it is presently
recognized : but, upon examination, it would be found, that
the freshest laws of the most civilized nations are continally
falling into the same error §. This, in short, is the case
wheresoever the punishment is fixed while the profit of de-
linquency is indefinite : or, to speak more precisely, where
the punishment is limited to such a mark, that the profit of
delinquency may reach beyond it.

X Wilkin's Leg. Anglo-sax. p. 71, 73. See Hume, Vol. I. App. I. p. 219.
$ See in particular the EngUth Statute iaios throughout, Bonapart^s Penal
Code, and the recently enacted or not enacted Spanuk Penal Code.

Note by the AtUhcr, July, 18Sf .

VOL. 11. C

19 OF THE PROPORTION B£TW£SN

punii^hinant will be thirown away: it will be
altogether ineffkUHnoiis*.

' IX.

The pm- The above rule has been often objected to, on

priety of , , ,

taking the account of its Seeming harshness : but this can
the tempta. onlv have happened fot want of its beint^ properly
^Je, understood. The strength of the ^temptation,
w) ob^ction catcris paribus^ is as the profit of the offence : the
tot 8 roe. q^^mtmjj Qf ^jjg punishment must rise with the

prpfit of the offence: c<j^t^is paribus, it must
therefore rise with, the strength of. the temptatioiu

^ This there is no disputing. True it is, that the
stronger the temptation, the less conclusive is the
indication which the act of delinquency affords of
the depravity of the offender's dispo^itipnf. So
&r then as the absence of any aggrayiatiqii, arising
from extraordinary depravity of disposition, may
operate, or at the utmost, so far as the presence
of a ground of extenuation, resulting from the
innocence or beneficence of the offender's disposi-
tion, can operate, the strength of the temptation

, may operate in abatement .of the, demand for
punishment^ But it can never operate so £aras
to indicate the propriety of making the punish-
ment ineffectual, which it is sure to be when
brought below the -level of the apparent. profit of
the offence.

* See ch. xiii. [Cases unmeet] § 1.
t See ch. xi. [Disposidons] xlii.

PUNISHMENTS AND OFFENCES. 19

The partial benevolence which should prevail Chap.
for the reduction of it below this level, would ' — v — '
counteract as well, those purposes which such a
motive would actually have in view, as those more
extensive purposes which benevolence ought to
have in view : it would be cruelty not only to the
public, bi3(t\o the very persons in whose behalf
it pleads : in its effects, I mean, however opposite
in its intention. Cruelty to the public, that is
cruelty to the innocent, by suffering them, for
want of an adequate protection, to lie exposed to
th6 mischief of the offence : cruelty even to the
oflfender himself, by punishing him to no purpose,
and without the chance of compassing that bene-
ficial end, by which alone the introduction of the
evil of punishment is to be justified.

X* '

Rule 2.
But whether a given offence shall be prevented Rale 9.

If dif UTS

in a given degree by a given quantity of punish- more against
ment, is never any thing better than a chance ; ©^we than
for the purchasing of which, whatever punishment * '™* ^"^
is employed, is so much expended in advance.
However, for the sake of giving it the better
chirice of outweighing the profit of the offence,

TTie greater the mischief of the offence, the greater
is the expence, which it may be worth while to be at,
in the way of punishment *.

* For example, if it can ever be worth while to be at the inM^di- "~
expence of so horrible a punishment as that of burning alive, *'™ *"^

20 OF THE PROPORTION BETWEEN

Rule 3.
Rule 3. The next object is, to induce a man to choose

Cause the , ,

least of two always the least mischievous of two offences;

offences to _ ^

be pre- thcreiore

Where two offences come in competition j the punish--
ment for the greater offence must be sufficient to
induce a man to prefer the less*.

XII.

Rule 4.
Role 4. When a man has resolved upon a particular

Punish for • • i -i • t

each particle offeucc, the ucxt objcct IS, to luducc him to do no
chief. more mischief than what is necessary for his pur-
pose : therefore

The punishment should be a^usted in such manner
to each particular offence ^ that for eoery part of the
mischief there may be a motive to restrain the of-
fender from giving birth to iVf .

it will be more so in the view of preventing such a crime as
that of murder or incendiarism, than in the view of prevent-
ing the uttering of a piece of bad money. See B. I. tit.
([Defraudment touching the Coin] and [Incendiarism.]
^ Espr. des Loix, L. vi. c. 16.
Example.— f ^^ ^°y one have any doubt of this, let him conceive the
dren^ and ^^^^^^ ^^ ^^ divided into as many separate offences as there
money are distinguishable parcels of mischief that result from it.

stolen. . .

Let it consist, for example, in a man's giving you ten blows,
or stealing from you ten shillings. If then, for giving you
ten blows, he is punished no more than for giving you five,
the giving you five of these ten blows is an offence for which

PUNISHMENTS AND OFFENCES. . 21

XIII. .

Rule 5.

The last object is, whatever mischief is guarded R?J« ?-
against, to guard ^against it at as cheap a rate as «> degree
possible : therefore ciai reason.

The punishment ought in no case to be more than
what is necessary to bring it into conformity with the
ruks here given.

XIV.

Rule 6.
It is fuifther to be observed, that owing to the Rule 6.
different manners and degrees in which persons circum-
under different circumstances are affected by the Lendng"
same exciting causey a punishment which is the "^ **^'
same in name will not always either really pro-
duce, or even so much as appear to others to

there is no punishment at all : . which being understood, as
often as a man gives you five blows, he will be sure to give
you five more, since he may have the pleasure of giving you
these five for nothing. In like manner, if for stealing from
you ten shillings, he is punished no more than for stealing
five, the stealing of the remaining five of those ten shillings
is an offence for which there is no punishment at all. This
rule is violated in almost every page of every body of laws I
have ever seen.

The profit, it is to be observed, though frequently, is not
constantly, proportioned to the mischief : for example^ where
a thief, along with the things he covets, steals' others which
are of no use to him. This may happen through wantonness,
indolence, precipitation, &c. &c.

OF THE PROPORTION .BETWEEN

XIV. produce, in two different persons the same degree

Chap. * ^ o '

'— v--^ of pain : therefore.

That, the qu(mtity actually inflkti^d on m:h indi-
vidual offender may eorre^nd tot he quantity intended
for similar offenders in general ^ the seo^aL circum-
stances^ influencing sensibility ought always to be taken
into account*,

XV.

Commpara- Of the abovc rulcs of proportion, the four first,

tive view of • . i j^ j^i_ t -^

the above wc uiay pcrceive, serve to mark out the limits on
'"^^*' the side of diminution ; the limits beltgo) which a
punishment ought not to be diminished: the iifth,
the limits on the side of increase.; the limits above
which it ought not to be increased. The five first
are calculated to serve as guides to the legislator:
the sixth is calculated,, in some measure, indeed,
for the same purpose ; but principally for guiding
the judge in his endeavours to conform, on both
sides, to the intentions of the legislajtor.

XVI.

Into the ac- Let US look back a little. The first rule, in

count of the

twZiMjofa order to render it more conveniently applicable

punisbmenty , i' x x

must be to practice, may need perhaps to be a little more
deficiency particularly unfolded. It is to be observed, then,
<^rtainty that for the sake of accuracy, it was necessary,
imity."^*' instead of the word quantity to make use of the
less perspicuous term value. For the word quan-
tity will not properly include the circumstances

* See ch, vi; [Seinaibility/]

PUNISHMENTS AND OFFENCES. 88

eitlier of certainty er . proximity : circumstances ^^af.

which> in estimating the value of a lot of pain or' '■^-%/*-^ \

{Measure, most iJways be taken into the account*. \

Now^ on the one hand^ a lot of pimishment is a

lot ^f pain; on the other hbnd^ the profit of an-

offence is a lot of pleaMre^ or what is equivalent

to it. But the profit of the offisnce is commonly

more tertain than the punishment) or^ what comes

to the saute thing"^ appears so at Idtot to the of-

fender* It is at any rd,te commonly more immer

diatt. It follows, therefore, that, in order to

maintain its superiority over the profit of the \

offence, the punishment must have its value made \

up in some other way, in proportion to that j

wherehy it falls short in the two points of certainty

and proanmity. Now there is no other way in

which it can receive any addition to its value, but

by receiving an addition in point of tm^iiude. \

Wherever then the value of the punishment falls j

short, either in point of certainty, or of proximity,

of that of the profit of the offence, it mwt receive

a proportionable addition in point of magnitude f .

XVII.

Yet farther. To make sure of giving the value aiw. into

, , _ PI ^® account

of the punishment the supenonty over that of the of the mis-

• See cK. iv. [Value.]

+It is for this reason, for example, that simple compensa-
tion is never looked upon as sufficient punishment for theft
or robbery.

24 OF THE PROPORTION BETWEEN

Chap, offcnce, it may be necessary^ in some cases^ to take
chfeTS' ^^*^ *^^ account the profit not only of the indm-
profit of the ^^^/ offence to which the punishment is to be

offeace, the *

mischief annexed, but also of such other offences of the

and profit of

other of. game sort as the offender is likely to have already
the same Committed without detection. This randon^ .mode
of calculation, severe as it is,, it will be impossible
to avoid having recourse to, in certain cases : in
such, to wit, in which the profit is pecuniary, the
chance of detection very small, and the obnoxious
act of such a nature as indicates a habit: for
example, in the qase of frauds against the coin. If
it be not recurred to, the practice of committing
the offence will be sure to be, upon the balance
of the account, a gainful practice. That being
the case, the legislator will be absolutely sure of
not being able to suppress it, and the whole
punishment that is bestowed uppn it will be
thrown away. In a word (to keep to the same
expressions we set out with) that whole quantity
of punishment will be inefficacious.

XVIII.

Rule 7.
^Euie 7. These things being considered, the three fol-
««*«nty lowing rules may be laid down by way of supple-
made up in ment and explanation to Rule 1. *

magnitude. m 1 1 i

To enable the value of the punishment to outweigh
that oj the profit of the offence^ it must be encreased,
, in point ofmagnitude, in proportion as it falls short
in point of certainty.

PUNISHBIBNTS AND OliTBNCES. S^

. XIX.

Rule 8.
Punishment must be further encreasedin paint of Rai<s s.

, . . • /• 71 7 • • ^So also want

magnttudey in proportum as it falls short %n point ofofytox'

^ . .^ imity.

projnjmty.

Rule 9.
Where the act is concbmody indicative of a habit j y^^{^
such an encrease must be gi*(ym to the pumshment as ^!^^^^^
may enable it to outweigh the profit not only of the ^^^
individual offence^ but of such other like offences as
are likely to haoe been commuted with impunity by
the same offender.

XXI.

There may be a few other circumstances orJ^^'T""^

^ mg rules are

considerations which may influence, in some smaU °f >^ !">-

•^ portauce.

degree^ the demand for pumshment : but as the
propriety of these is either not so demonstrable,
or not so constiant, or the application of them not
so determinate, as that of the foregoing, it may
be doubted whether they be worth putting on a
level with the others.

XXII.

Rule 10.
When a punishment y which in point of quality is ^^^ ^^
particularly well calculated to answer its intentiqpf of qaaiity,

increase in

cannot exist in less than a certain quantity f. it may ^mn^j.
sometimes be of use, for the sake of employing it, to
stretch a little beyond that quantity which^ on other .
accounts, xvould be strictly necessary.

Farticalarlj
for an
leisoD.

^ OF THQ f ROPORTIQN WTWUff

Rule )1.
wi^nii^^. ^^ particular y this fwjf smi^mes be the case,
where the pumhment proposed is of such atiature
as to be particularly well calculated to anmer the
purpose of a moral lesson*.

XXIV.

Rule Ifi.

R«de 19. Xhe teadeney of the above considerations is to

^ dictate an a,.gmmtation in <^ punishment; ^

majr render foUowiAg Tule opeitktes in the ivay of diminution.

Snprofiu^e. There are. certain cases (it ha^ been seenf) in

which, by the influence of accidental ckcum-,

stances, punishment may be rendered unprofit-

-(— ^

A punish- * A puMskment may be said to be calculated to answer

ment ap- . ^

plied by tbo puTpose of a jttoral ksson, when» by reason of the ig«
roorai^iesaoD ^^^Y ^^ Stamps upon the offenoe, it is calculated to inspire
what the public with sentiments of aversion towards those per*

nicious habits and dispositions with which the offence

appears to be connected; and thereby to inculcate the

opposite' beneficial habits and dispositions.
Example.— It is this, for example, if any thing, that must justify the
corporS * application of so severe a punishment as the infamy of a
injuriet. public exhibition, hereinafter proposed, for him who lifts up

his hand against a woman, or against his father. See B. I«

tit. [Simp, corporal injuries.]
£xan4>]e— Ft is partly on this principle, I suppose, that military
lawfc*'*^'^ legislators have justified to themselves the hiflictbg death

OD.the soldier who lifts up his hand against his superior

offieer.
t See ch. xiii. [Cases unmeet.] § 4.

PUNISHMENTS AHB 0FF£N€B8. V

ablein the whole : in the same cases it may chance . ^V.*
to be rendered unprofitable as to a part only. ^
Accordingly,

In a^mting the quantum of fmdskment^ Ike cir-
cumstances^ by which aU punishment muy be rendered
un^r^ubky aught to he attended to.

XXV.

Rule 13.
Itisto be observed, that the more vamus a»d ^^ ^3.

For simpli*

minute any set of provisions are, the greater the aty'« wk^

• • • small di»-

chance is that imy given article « in th^n will not proportions
be borne in mind : ^without which, no benefit can uegiected.
ensue from it. Distinetions, which are more earn-
plex than iwhat the conceptions of those "whose
conduct it is* designed to influence can take in^
will even be worse than aseless. The ' whole
system will present a; oonfused. a|>peaTance: 4aid
thus the effect, not only of the proportions estab*
Hsfaed by the articles in question, but of whatever
is connected with them, wUl be destroyed*. To
draw a precise line of djueciacm in such ease seems
impossible. However, by way ef memeBte,4t
may be of some use to subjmn the following
rule.

Among prffoisiom designed to perfect the propor-
tion between punishments and offences, if any occur,
which, by their awn particular good effects, would

* See B. II. tit. [PurposeB.] Append, tit. [Compositioii.]

28 OF THE PROPORTION pETWEEN

cbaf. not make up for the harm they would do by addit^ to

^X V • _

^—v — ' the intricacy, of the Code, they should be omitted*.

XXVI.

Aluiiiiry It mav be remembered, that the political sane-

fence of the , , _

phyaau, tioii, being that to which the sort of pumshment
reii^oof belongs, which in this chapter is all along in view,
itereaiicmed is but onc of four sanctions, which may all of them
''*^' contribute their share towards producing the
same effects. It may be expected, therefore, that
in adjusting the quantity of political punishment,
allowance sjhould be made for the assistance it may
meet with from those other coiitrouling powers.
True it is, that from each of these several sources
a . very powerful assistance may sometimes be
derived. But the case is, that (setting aside the
moral sanction, in the case where the force of it is
expressly adopted into and modified by the poli-
ticalf ) the force of those other powers is never
determinate enough to be depended upon. It can
never be reduced, Jike political punishment, into
exact lots, nor meted out in niimber, quantky.

PropordoQ* * Notwithstanding this rule, my fear is, that in the

▼cry fttr ^Q ensiling model, I may be thought to have carried my en-

the present deavours at proportionality too far. Hitherto scarce any

* attention has been paid to it. Montesquieu seems to have

beeh almost the first who has had the least idea of any such

thing. In such a matter, therefore, excess seemed more

eUgible than defect. The difficulty is to invent : that done»

if any thing seems superfluous, it is easy to retrench.

.^t See B. I. tit. [Punishments.]

PUNISHMENTS AND OFFENCES.

and value. The legislator is therefore obliged to ^h^».
provide the fidl complement of pmiishment, as if ^ — ^''"^
he were sure of not receiving any assistance what-,
ever from any of those quarters. If he does> so
much the better : but least he should not^ it is
necessary he should^ at all events^ make that pro-
vision which depends upon himselfi'

XXVII.

It may be of use, in this place, to recapitulate B«»pinii».
the several circumstances, which, in establishing
the proportion betwixt punishments and offences,
are to be attended to. These seem to be as
follows :

L On the part of the offence :

1 . The profit of the dffence ;

2. The mischief of the offence ;

3. The profit and mischief of other greater

or lesser offences, of different sorts, which
the offender may have to choose out of;

4. The profit and mischief of other offences,

of the same sort, which the same of-
fender may probably have been guUty
of already.
n. On the part of the punishment :

5. The magnitude of the punishment : com-

posed of its intensity and duration ;

6. The deficiency of the punishment in point

of certainty ;

7. The deficiency of the punishment in point

of proximity ;

so' OP THE FROPOllTION BETWX:S1i(

8. The quality of ik& 'puni»htnent ;

9. The accidental advanti^e in point of qua-

lity of a punishment^ not strictly needed
in point of quantity ;

10. The use^of a punisbment of a particular
' qualiiy^ in * tha character of a moral'

lesson.

III. On the part of the offender:

11. The responsibility of the clasd of persons

ina way to ofi^d;

1 2^ The sensibility of each particular o£^der ;

] 3. The particular merits or useful qualities
of any particular offender^, in case of a
punishment which might deprive the
community of the benefit of them ;

14. The* multitude of offenders on any parti-

cular occasion*^

IV. On the part of the pMk^ at any particular

conjt«ncture ;

15. The inclmatioiis of the people/ tot or

against any quantity or mode of punish-
ment ;

16. The inclinations of foreign powers. *

V. On the part of theUmt that is, of the public

for a continuance :

17. The necesfflty of making small sacrifices,

in pt»nt of proportionality, for the «ake
of simplicity.

xxvm.
h^^^ There are somfe, perhaps, who, at first sight.

PUl^ISHWiaBNTS AND 0FFENCE8. 'S i

may look upon the nicety emj^oyed in the ^wi- ^■^'^
ment of such rules, as so much lahoilr lost : for ^ y /

served wn-

grosa ignorance^ they will say, neveir tr©uhle» ^'^^^^f^^^™
itself about laws, and paction does not calculate, of inutmtjr.
But the evil of ignorance admits of cure * : and as
to the proposition that passion does not calculate,
this like most of these very general and oracular
propositions, is not true. When matters of such
importance as pun and pleasure are at stake, and
these in the highest degree (the only matters, in
short, that can be of importance) who is there
that does not calculate? Men calculate, some
with less exactness, indeed, some with more : but
all men calculate. I would not say, that even a
madman does not calculate f. Passion calculates,
more or less, in every man: in different men,
according to the warmth or coolness of their dis-
positions : according to the firmness or irritability
of their minds : according to the nature of the
motives by which they are acted upon. Happily,
of all passions, that is the most given to calcula-
tion, from the excesses of which, by reason of its
strength, constancy, and universality, society has
most to apprehend I : I mean that which corres-

* See Append, tit. [Promulgation.]
t There are few madmen but what are observed to be
afi*aid of the strait waistcoat.

X See ch. xii. [Consequences.] xxxiil.

OF TH£ PaOPORTION BETWEEN^ kc

x"v'' P^^^s *^ *^^ motive of pecuniary interest : so that
these niceties^ if such they are to be called^ have
the best chance of being efficacious^ where efficacy
is of the most importance.

• [ S3 ]

CHAP. XV.

OF THE PROPERTIES TO BE GIVEN TO A LOT OF PUNISHMENT.

It has been shewn what the rules are, which Properties

are' to be go-
ought to be observed in adjusting the proportion vcm«i by

between the punishment and the offence. The
properties to be given to a lot of punishment, in
every instance, will of course be such as it stands
in nefed of, in order to be capable of being ap-
plied, in conformity to those rules : the quality
will be regulated by the quantity.

n.
The first of those rules, we may remember Property i.

^ ^ ^ » Variability.

was, that the quantity of punishment must not be
less, in any case, than what is sufficient to out-
weigh the profit of the offence : since, as often as
it is less, the whole lot (unless by accident the
deficiency should be supplied from some of the
other sanctions) is thrown away : it is ineffka"
cious. The fifth was, that the punishment ought
in no case to be more than what is required by
the several other rules : since, if it be, all that is
above that quantity is needkss. The fourth was,
that the punishment should be adjusted in such
manner to each individual offence, that every part
of the mischief of that offence may have a penalty
(that is, a tutelary motive) to encounter it ; other-

VOL. II. D

34 OF THE PROPERTIES TO BE GIVEN TO

^xv'* ^'^^^f with respect to so much of the offence as
^ — ^^^^ has not a penalty to correspond to it, it is as if
there were no punishment in the case. Now to
none of those rules can a lot of punishment be
conformable, unless, for every variation in point
of quantity, in the mischief of the species of
offence to which it is annexed, such lot of punish-
ment admits of a correspondent variation. To
prove this, let the profit of the offence admit of a
multitude of degrees. Suppose it, then, at any
one of these degrees : if the punishment be less
than what is suitable to that degree, it will be
inefficacious ; it will be so much thrown away : if
it be more, as far as the difference extends, it will
be needless ; it will therefore be thrown away also
in that case.

The first property, therefore, that ought to be
given to a lot of punishment, is that of being va-
riable in point of quantity, in ^conformity to every
variation which can take place in either the profit
or mischief of the offence. This property might,
perhaps, be termed, in a single word, variability.

III. I

Propcrtj 2. A sccoud property, intimately connected with I

Equability. , « '

the former, may be stiled equability. It will avail
but little, that a mode of punishment (proper in
all other respects) has been established by the
legislator ; and that capable of being screwed up
or let down to any degree that can be required ;
if, after all, whatever degree of it be pitched upon.

A LOT OF PUNISHMENT. ^^

that same degree shall be liable, according to cir-
cumstances, to produce a very heavy degree of
pain, or a very slight one, or even none at all. In
this case, as in the former, if circumstances happen
one way, there will be a great deal of pain pro-
duced which will be needless : if the other way,
there will be no pain at all applied, or none that
will be efficacious. A punishment, when liable to
this irregularity, may be stiled an unequable
one: when free from it, an equable one. The
quantity of pain produced by the punishment
will, it is true, depend in a considerable degree
upon circumstances distinct from the nature of
the punishment itself : upon the condition which
the offender is in, with respect to the circum-
stances by which a man's sensibility is liable to be
influenced. But the influence of these very cir-
cumstances will in many cases be reciprocally in-
fluenced by the nature of the punishment : in
other words, the pain which is produced by any
mode of punishment, will be the joint effect of
the punishment which is applied to him, and the
circumstances in which he is exposed to it. Now
there are some punishments, of which the effect
may be liable to undergo a greater alteration by
the influence of such foreign circumstances, than
the effect of other punishments is liable to un-
dergo. So far, then, as this is the case, equability
or unequability may be regarded as properties
belonging to the punishment itself.

36 OF THE PROPERTIES TO BE GIVEN TO

IV.

p^^ .^^ An example of a mode of punishment which is

ments wiiicii ^pt to be uneouable, is that of banishment, when

are apt to * ■*•

be deficit-lit the locus u QUO {ox place the party is banished

m this re- ^ . .

specu from) is some determinate place appointed by the
law, which perhaps the offender cares not whether
he ever see or no. This is also the case with
pecuniary y or quasi-pecuniary punishment, when it
respects some particular species of property,
which the offender may have been possessed of,
or not, as it may happen. All these punishments
may be split down into parcels, and measured out
with the utmost nicety : being divisible by time,
at' least, if by nothing else. They are not, there-
fore, any of them defective in point of variability :
and yet, in many cases, this defect in point of
equability may make them as unfit for use as if
they were *.

Property 3. The third rule of proportion was, that where

Commensa* ...

rabiiitj to two offcuccs comc in Competition, the punishment

other pu- , ,

nishments. for thc- greater offence must be sufficient to m-

* By the English law, there are several ofiences which are
punished by a total forfeiture of moveables, not extending to
immoveables. This is the case with suicide, and with certain
species of theft and homicide. In some cases, this is the
principal punishment: in others, even the only one. The
consequence is, that if a man*s fortune happens to consist
in moveables, he is ruined; if in immoveables, he suffers
nothing.

iiiui^i nm^i^mmi^m^^mm^^^mmmmm^l^'vmf'^mm'mfmmmmimmmmmmmmmmmmmmm

A LOT OF PUNISHMENT. ^7

duce a man to prefer the less. Now, to be suffi- ^"f' •
cient for this purpose, it must be evidently and ' — '^ — '
uniformly greater : greater, not in the eyes of
some men only, but of all men who are liable to
be in a situation to take their choice between the
two offences ; that is, in effect, of all mankind. In
other words, the two punishments must be per-
fectly commemurable. Hence arises a third pro-
perty, which may be termed commensurability : to
wit, with reference to other punishments*.

VI.

But punishments of different kinds are in very How two
few instances uniformly greater one than another ; nUhmcSt'
especially when the lowest degrees of that which ™ed p^"'
is ordinarily the greater, are compared with the m^fuSSie.
highest degrees of that which is ordinarily the
less: in other words, punishments of different
kinds are in few instances uniformly commensu-
rable. The only certain and universal means of
making two lots of punishment perfectly com-
mensurable, is by making the lesser an ingredient

■■'•■■'■'■■'■ ' ' ' ' ' ■ ■ ■ II I I I II III II ^^M«»

* See Fieu) of the Hard- Labour BilL Lond. 1778.
p. 100.

For the idea of this property, I must acknowledge myseU*
indebted to an anonymous letter in the St. James's Chro-
nicle, of the 37th of September 1777; the author of which is
totally unknown to me. If any one should be disposed to
think lightly of the instruction, on account of the channel
by which it was first communicated, let him tell me where I
can find an idea more ingenious or originaU

38 OF THE PROPERTIES TO BE GIVEN TO

in the composition of the greater. This may be
done in either of two ways. 1 . By adding to the
lesser punishment another quantity of punishment
of the same kind. £. By adding to it another
quantity of a different kind. The latter mode is
not less certain than the former : for though one
cannot always be absolutely sure^ that to the
same person a siven punishment will appear
greaJthan another gil p™i.hment, yeVone
may be always absolutely sure, that any given
punishment, so as it does but come into contem-
plation, will appear greater than none at all.

VII.

Cfcrnra"^^^ ^ Again : Punishment cannot act any farther
isticainess. than in as far as the idea of it, and of its connec-
tion with the offence, is present in the mind. The
idea of it, if not present, cannot act at all ; and
then the punishment itself must be inefficacious.
Now, to be present, it must be remembered, and
to be remembered it must have been learnt. But
of aU punishments that can be imagined, there
are none of which the connection with the offence
is either so easily learnt, or so efficaciously re-
membered, as those of which the idea is already
in part associated with some part of the idea of
the offence : which is the case when the one and
the other have some circumstance that belongs to
them m common. When this is the ease with a
punishment and an offence, the punishment is said
to bear an analogy to, or to be characteristic of.

■ i\M^^^^^^^^^K^K^m^m^mnmti^mmmmm^mmimmmmfmmmmmmmmmPfK99tf^fifW9Kt^

A LOT OF PUNISHMENT. 39

the oflFence*. Churacteristkalness is, therefore, a Chap.

A V •

fourth property, which op this account ought to ^ — v — '
be given, whenever it can conveniently be given,
to a lot of punishment.

VIII.

It is obvious, that the effect of this contrivance iiie mode ot
wUl be the greater, as the analogy is the closerX!^'"
The analogy will be the closer, the more tnaterialf Ih^^d
that cu-cumstance is, which is in common. Now ^^^y^^""'
the most material circumstance that can belong ****"*
to an offence and a punishment in common, is the
hurt or damage which they produce. The closest
analogy, therefore, that can subsist between an
offence and the punishment annexed to it, is that
which subsists between them when the hurt or ^
damage they produce is of the same nature : in
other words, that which is constituted by the cir-
cumstance of identity in point of damage J. Ac-
cordingly, the mode of punishment, which of all
others bears the closest analogy to the offence, is
that which in the proper and exact sense of the

* See MoBtesq. £sp. des Loix. L. xii. cb. iv. He seems
to have the property of characteristicalness in view ; but that
the idea he had of it was very indistinct, appears from the
extravagant advantages he attributes to it.

t See ch. vii. [Actions.] iii.

t Besides this, there are a variety of other ways in which
the punishment may bear an analogy to the offence. This
will be seen by looking over the table of punishments.

40 OF THE PROPERTIES TO BE GIVEN TO

word is termed retaliation. Retaliation, therefore,
in the few cases in which it is practicable, and not
too expensive, will have one great advantage over
every other mode of punishment.

, IX.

Property 5, Again : It is the idea only of the punishment
rity. (or, in other words, the apparent punishment)

that really acts upon the mind ; the punishment
itself (the real punishment) acts not any farther
than as giving rise to that idea. It is the apparent
punishment, therefore, that does all the service, I
mean in the way of example, which is the prin-
cipal object*. It is the real punishment that does
all the mischieff. Now the ordinary and obvious
way of increasing the magnitude of the apparent
punishment, is by increasing the magnitude of
the real. The apparent magnitude, however,
may to a certain degree be increased by other less
expensive means : whenever, therefore, at the
same time that these less expensive means would
have answered that purpose, an additional real
punishment is employed, this additional real pu-
nishment is needless. As to these less expensive
means, they consist, 1. In the choice of a parti-
cular mode of punishment, a punishment of a
particular quality, independent of the quantity J.
3. In a particular set of solem?iities distinct from

* See ch. xiii. [Cases unmeet] § 1, 2. note,
t lb. § 4. par. iii. t See B. I. tit. [Punishments.]

^i^«lliiPiPpi««iPOTiii"««B««PiHIHHiVHHaHBIVPV««VHMMVnM«POTl^i^^M|a««iai^Pl^ipii«l^MM^Vil^^

A LOT OF PUNISHMENT. 41

the punishment itself, and accompanying the ^hap.

, A V •

execution of it *. ^— v — '

A mode of punishment, according as the ap- The most ef-

lectii&l WAV

pearance of it bears a greater proportion to the of rendering
reahty, may be said to be the more drewip/^ry. men" exem-
Now as to what concerns the choice of themcawof^
punishment itself, there is not any means by*^**^'
which a given quantity of punishment can be
rendered more exemplary, than by choosing it of
such a sort as shall bear an analogy to the offence.
Hence another reason for rendering the punish-
ment analogous to, or in other words character-
istic of, the offence.

XI.

Punishment, it is stiU to be remembered, is in P„,perty 6.
itself an expence : it is in itself an evilf . Accord- ™^ '*^'
ingly the' fifth rule of proportion is, not to pro-
duce more of it than what is demanded by the
other rules. But this is the case as often as any
particle of pain is produced, \^hich contributes
nothing to the effect proposed. Now if any mode
of punishment is more apt than another to pro-
duce any such superfluous and needless pain, it
may be styled unfrugal ; if less, it may be styled
frugal. Frugality^ therefore, is a sixth property
to be wished for in a mode of punishment.

* See B. II, tit. [Execution.]
t Ch. xiii. [Cases unmeet] par. ii.

42 OF THE PROPERTIES TO BE GIVEN TO

Chap. XII-

XV. , -^"^

^^^■"^JJp^ The perfection of frugality, in a mode of

belongs in punishment, is where not only no superfluous

perfection * i •' ^

to pecuniary pain is produced on the part of the person pu-

puiushment ■■• * •* ^ * *^

nished, hut even that same operation, hy which
he is subjected to pain, is made to answer the
purpose of producing pleasure on the part of
some other person. Understand a profit or stock
of pleasure of the self-regarding kind : for a
pleasure of the dissocial kind is produced almost
of course, on the part of all persons in whose
breasts the offence has excited the sentiment of
ill-will. Now this is the case with pecuniary
punishment, as also with such punishments of the
quasi-pecuniary kind as consist in the substraction
of such a species of possession as is transferable
from one party to another. The pleasure, indeed,
produced by such an operation, is not in general
equal to the pain* : it may, however, be so in
particular circumstances, as where he, from whom
the thing is taken, is very rich, and he, to whom
it is given, very poor : and, be it what it will, it
is always so much more than can be produced by
any other mode of punishment

XIII.

Ewmpiarity Xhc propcrtics of exemplarity and frugality
lity in what sccm to pursuc thc same immediate end, thou&fh

thev differ , * . ....

and agree* by different courses. Both are occupied in dimi-

* lb. note.

A LOT OF PUNISHMENT. 45

nishing the ratio of the real suffering to the Cbap.
apparent : but exemplarity tends to increase the ^ v ^
apparent ; frugality to reduce the real.

XIV.

Thus much concerning the properties to be Other pro-
given to punishments in general^ to whatsoever «»fcrior im-
offences they are to be applied. Those which
follow are of less importance^ either as referring
only to certain offences in particular^ or depend-
ing upon the influence of transitory and local
circumstances.

In the first place^ the four distinct ends into
which the main and general end of punishment is
divisible*, may give rise to so many distinct
properties, according as any particular mode
of punishment appears to be more particularly
adapted to the compassing of one or of another
of those ends. To that of example^ as being the
principal one, a particular property has already
been adapted. There remain the three inferior
ones of reformation, disablement^ and compensation.

XV.

A seventh property, therefore, to be wished for Property r.

n • • 1 n Subservi-

in a mode of punishment, is that of subserviency to ency to re-

formation.

reformation, or reforming tendency. Now any
punishment is subservient to reformation in pro-
portion to its quantity : since the greater the
punishment a man has experienced, the stronger

* See ch. xiii. [Cases unmeet] par. ii. note.

4* OF THE PROPERTIES TO BE GIVEN TO

Chap. 13 the tendency it has to create in him ati aversion
' — "^^^ towards the offence which was the cause of . it :
and that with respect to all offences alike. But
there are certain punishments which, with regard
to certain offences, have a particular tendency to
produce that effect by reason of their quality :
and where this is the case, the punishments in
question, as applied to the offences in question,
will pro tanto have the advantage over all others.
This influence will depend upon the nature of the
motive which is the cause of the offence : the
punishment most subservient to reformation will
be the sort of punishment that is best calculated
to invalidate the force of that motive.

XVI.

—applied Thus, in offcuccs originating from the motive
originating of iU-will*, that puuishmeut has the strongest
reforming tendency, which is best calculated to
weaken the force of the irascible affections. And
more particularly, in that sort of offence which
consists in an obstinate refusal, on the part of the
offender, to do something which is lawfully
required of him f, and in which the obstinacy is
in great measure kept up by his resentment
against those who have an interest in forcing him
to compliance, the most efficacious punishment
seems to be that of confinement to spare diet..

* See ch. x. [Motives.]
t See B. I. tit. [OflPences against Justice^

A LOT OF PUNISHMENT, 45

XVII.

Thus, also, in offences which owe their birth to , ^

' -to onences

the loint influence of indolence and pecuniary ?"ginating

•* ' ■■• •' in indolenGe

interest, that punishment seems to possess thej«n«*to
strongest reforming' tendency, which is best cal- interest.
culated to weaken the force of the former of
those dispositions. Aiid more particularly, in the
cases of theft, embezzlement, and every species of
defraudment, the mode of punishment best adapted
to this purpose seems, in most cases, to be that of
penal labour.

XVIII.

An eighth property to be given to a lot of Property 8.
punishment in certain cases, is that of efficacu ^i^^ respect

... todisable-

with respect to disablement, or, as it might be stiled ment.
more briefly, disabling efficacy. This is a property
which may be given in perfection to a lot of
punishment ; and that with much greater cer-
tainty than the property of subserviency to re-
formation. The inconvenience is, that this property
is apt, in general, to run counter to that of fru-
gality : there being, in most cases, no certain
way of disabling a man from doing mischief,
without, at the same time, disabling him, in a
great measure, from doing good, either to himself
or others. The mischief therefore of the offence
must be so great as to demand a very considerable
lot of punishment, for the purpose of example,
before it can warrant the application of a punish-

*^ OF THE PROPERTIES TO OE GIVEN TO

^■^'» ment equal to that which is necessary for the
purpose of disablement.

XIX.

«<»* The punishment^ of which the efficacy in this
in capital wav is the ffreatest, is evidently that of death.

puuiahment. . ...

In this case the efficacy of it is certain. This
accordingly is the punishment peculiarly adapted
to those cases in which the name of the offender,
so long as he lives^ may be sufficient to keep a
whole nation in a flame. This will now and then
be the case with competitors for the sovereignty,
and leaders of the factions in civil wars : though,
when applied to offences of so questionable a
nature, in which the question concerning crimi-
nality turns more upon success than any thing
else ; an infliction of this sort may seem more to
savour of hostility than punishment. At the same
time this punishment, it is evident, is in an
eminent degree unfrugal ; which forms one among
the many objections there are against the use of
it, in any but very extraordinary cases*.

XX.

niabmcoto ^^ Ordinary cases the purpose may be suffi-

jn which ciently answered by one or other of the various

^^^."^ kinds of confinement and banishment : of which,

imprisonment is the most strict and efficacious.

For when an offence is so circumstanced that it

cannot be committed but in a certain place, as is

* See B. I. tit. [Punishments.]

A LOT OF PUNISHMENT. 4?

the case, for the most part, with oflFences against 9j^'-
the person, all the' law has to do, in order to ' "^^"^
disable the offender from committing it, is to
prevent his being in that place. In any of the
offences which consist in the breach or the abuse
of any kind of trust, the purpose may be com-
passed at a still cheaper rate, merely by forfeiture
of the trust : and in general, in any of those
offences which can only be committed under
favour of some relation in which the offender
stands with reference to any person, or sets of
persons, merely by forfeiture of that relation :
that is, of the right of continuing to reap the
advantages belonging to it. This is the case, for
instance, with any of those offences which consist
in an abuse of the privileges of marriage, or of
the liberty of carrying on any lucrative or other
occupation.

XXI.

The mnth property is that of mbseroiency /o property 9.
compensation. This property of punishment, if it t^^^Z^a.
be vindktvoe compensation that is in view, will, ^°****^
with little variation, be in proportion to the quan-
tity : if lucratioe, it is the peculiar and character-
istic property of pecuniary punishment.

XXII.

In the rear of all these properties may be Pw-

. . r r .^ pcrtylO.

mtroduced that of popularity ; a very fleeting and Popularity.
indeterminate kind of property, which may belong
to a lot of punishment one moment, and be lost

48 A LOT OF PUNISHMENT.

by it the next. By popularity is meant the pro^
perty of being acceptable, or rather not unac-
ceptable, to the bulk of the people, among whom
it is proposed to be established. In strictness of
speech, it should rather be called absence of unpo-
pularity : for it cannot be expected, in regard to
such a matter as punishment, that any species or
lot of it should be positively acceptable and
grateful to the people : it is suflScient, for the
most part, if they have no decided aversion to the
thoughts of it. Now the property of character-
isticalness, above noticed, seems to go as far
towards conciliating the approbation of the people
to a mode of punishment, as aiiy ; insomuch that
popularity may be regarded as a kind of secondary
quality, depending upon that of characteristical-
ness *. The use of inserting this property in the
catalogue, is chiefly to make it serve by way of
memento to the legislator not to introduce, with-
out a cogent necessity, any mode or lot of punish-
ment, towards which he happens to perceive any

Character- * '^® property of characteristicalness, therefore, is useful
isticalness in a mode of punishment in three different ways : l« It

renders a * ''

panishiDent, renders a mode of punishment, before infliction, more easy
bleT^«."c»^ to be borne in mind : 2. It enables it, especially after inflic-

emplaiy : tion, to make the stronger impression, when it is there ; that
flfc popular. . J . 1 , , •. » •

IS, renders it the more exemplary : 3. It tends to render it

more acceptable to the people, that is, it renders it the more

popular*

A LOT OF PUNISHMENT. ^^

violent aversion entertained by the body of the Ch^'-
people. ' — ^ — '

XXIII.

The effects of unpopularity in a mode of pu- Mischiefs
nishment are analogous to 'those of unfrugality . frtm th? un-
The unnecessary pain which denominates a pu- J? a"pmiwh-
nishment unfrugal^ is most apt to be that which intent *"
is produced on the part of the oflfender. A portion ^**pif /and
of superfluous pain is in like manner produced ^^\^^ '"
when the punishment is unpopular : but in this
case it is produced on the part of persons alto-
gether innocent^ the people at large. This is .
already one mischief; and another is^ the weak-
ness which it is apt to introduce into the law.
When the people are satisfied with the lew, they
voluntarily lend their assistance in the execution :
when they are dissatisfied, they will naturally
withhold that assistance ; it is well if they do not
take a positive part in raising impediments. This'
contributes greatly to the uncertainty of the
punishment; by whict, in the first instance, the
frequency of the offence receives an increase. In
process of time that deficiency, as usual, is apt to
draw on an encrease in magnitude : an addition
of a certain quantity which otherwise would be
needless*.

XXIV.

This property, it is to be observed, necessarily Thu pro-

peity^sup-

* See ch. xiii. [Cases unmeet] § v.
VOL. II. E

^ OF TB* HlOPERfnBS TO BE GIVEN TO

c*^'- 'supposes, on tihe part of the people, some preju-
^^^^^ dice or. other, which it is the business of the legis-
judice which lator to endeavour to correct For if the aversion

the legislatcNT <

ought to n-Q the punii^hmeiA in question were grounded on

cure.

the principle of utility, the punishment would be
such as, on other a<icounts, ought not to be
employed : in Which case its popularity br unpo-
pularity wouid never be worth drawing into ques-
tion. It is p^poperiy therefore a property not so
much of the pumslitiient as of the people : a
disposition to ehterit^n m unrei^on^bie disl&e
against an dl^^ct wMdi merits their approbatioa.
It is the sign Abo ^f attother property, to wit,
indolence or We^Kwess, on the part of the legis-
lator : in 's'ttflfel'iiig the people, 4bT the want of
some instruction, which ought to %e and might be
given thetn, to quarrel wiife thefr own interest.
• Be this as it may, so Ictog ^s any such dissatis-
faction sitbi^sfts, % behoves •the Ifegffelator to hove
att eye to it, as ttudi as if it ^em ever so well
grounded. Every nation 4s liable to have its
^' prejudices and its caprices, wfftch it is the business
of the legislator to look out for, to study, and to
cure*.

XXV.*

Propertyii. The elevcuth and last of all the properties that
lity. seem to be requisite in a lot of punishment, is

See ch. xiii. [Cases unmeet] ^ iv. par. iv.

A lOT OF PUNISHMENT*

that of remissibility* . The general presumption Chap.
is^ that when punishment is applied^ punishment
is needfiil : that it ought to be applied^ and there-
fore cannot want to be remitted. But in very
particular^ and those always very deplorable eases^
it may by accident happen otherwise. It may
happen that punishment shall have been inflicted^
where^ according to the intention of the law itself^
it ou^t not to have been inflicted : that is, where
the sufferer is innocent of the offence. At the
time of the sentence passed he appeared guilty :
but since then, accident has brought his inno-
cence to light. This being the case, so much of
the destined puiuslnnent « he has suffered akeady,
there is no help for. The business is then to free
him from as mudi as is yet to come. But i$
there any yet to come ? There is very little
diance of their being any, unless it be so much as
consists of chronical punishment: such as iot'-
prisonment, banishment, penal labour, and the
like. So much as consists in acute punishment,
to wit where the penal process itself is over pre-
s^itly, however permanent the punishment may
be in its effects, may be considered as frremissible.
This is the case, for example, with whipping,
branding, mutilation, and capital punishment.
The most perfecily irremissible of any is <:a{»tal
punishment. For though other punishments can-

'■ " ■ " Ilia i| ^~— — I 1 M il III II ■■II. I 1.1 I I Ml

* See View of the Hard Labour BUI, p. 109.

^^ OF THE PROPERTIES TO BE GIVEN TO

not, when they are over,, be remitted, they may
be compensated for ; and although the * unfor-
tunate victim cannot be put into the same con-
dition, yet possibly means may be found of putting
him into as good a condition, as he would have
been in if he had never suffered. This may in
general be done very effectually where the pu-
nishment has been no other than pecuniary.

There is another case in which the property of
remissibility may appear to be of use : this is,
where, although the offender has been justly
punished, yet on account of some good behaviour
of his, displayed at a time subsequent to that of
the commencement of the punishment, it may
seem expedient to remit a part of it. But this it
can scarcely be, if the proportion of the punish-
ment is, in other respects, what it ought to be.
The purpose of example is the more important
object, in comparison of that of reformatian *. It
is not very likely,- that less punishment should be
required for the former purpose than for the
latter. For it must be rather an extraordinary
case, if a punishment, which is suflScient to deter
a inan who has only thought of it for a few
moinents, should not be sufficient to deter a irian
who has been feeling it all the time. Whatever,
then, is required for the purpose of example,
must abide at all events : it is not any reformation

■ ' ■■■■.- ^ . .1 . „ M

* See ch. xiii. [Cases unmeet] ii. note.

L ii^i^iv-mmmmmmmmmmmmmmmmm^mmmmmmmmmmtKm^mmmmmmmimmmKf/ifitmm

A LOT OF PUNISHMENT. f»3

on the part of the offender, that can warrant the
remitting of any part of it: if it could, a man
would have nothing to do but to reform imme-
diately, and so free himself from the greatest part
of that punishment which was deemed necessary.
In order, then, to warrant the remitting of any
part of a punishment upon this ground, it must
first be supposed that the punishment at first
appointed was more than was necessary for the
purpose of example, and consequently that a part
of it was needless upon the whole. Tliis, indeed,
is apt enough to be the case, under the imperfect
systems that are as yet on foot : and therefore,
during the continuance of those systems, the pro-
perty of remissibility may, on this second ground
likewise, as well as on the former, be deemed a
useful one. But this would not be the case in
any new-constructed system, in which the rules
of proportion above laid down should be observed. ,
In such a system, therefore, the utility of this
property would rest solely on the former ground.

XXVI.

Upon taking a survey of the various possible To obtain^

All Tncsd

modes of punishment, it will appear evidently, properties,

... oil punishments

that there is not any one oi them that possesses must be
all the abova properties in perfection. To do the
best that can be done in the way of punishment,
it will therefore be necessary, upon most occasions,
to compound them, and make them into complex
lots, each consisting of a number of different
modes of punishment put together: the nature

54 OF THE PROTE&TIES TO BE GIVEN TO

•

Cbap. and proportions of the constifaetit parts of eac^
' — V — ' lot being different, according to the nature of the
offence which it is designed to coml^t.

XXVII.

Theffvego- It may not be amiss to bring togethi^^ and
^^ exhibit in one view, the eleven properties ^Am^
established. They are as follows :

Two of them are concerned in establishing a
proper proportion between a single offence and
its punishment ; viz.
1. VariabiKty.
S. Equability.
One, in establishing a proportion^ between
more offences than one, and more punishments
than one ; viz.

3. CommensurabiKty.
A fourth contributes to place the punishment
in that situation in which alone it can be effica-
cious ; and at the same time to be bestowing on
it the two farther properties of exemplarity and
popidarity ; viz.

4* Characteristicalness.
Two others are concerned in excluding all use-
less punishment ; the one indirectly, by heighten-
ing the efficacy of what is useful ; the other in a
direct way ; viz.

5. Exemplarity.

6. Frugality.

Three others contribute severally to the three
inferior ends of punishment ; viz.

7* Subserviency to reformation.

A LOT OF PUNISHMENT. ^^

8. Efflc«=,> disabling.

9. Subserviency to compensation..
Another property tends to exclude a collateral

mischief^ which a particular mode of punishment
is liable accidentally to produee ; viz.

10. Popularity.

The remaining, property tends to palliate a
mischief^ which all punishment^ as such^ is liable
accidentally to produce ; viz.

11. Remissibility.

The properties of commensurability, charac-
teristicalness^ exemplarity, subserviency to re-
formation^ and efficacy in disabling, are njore
particularly calculated to augment the pr(0
which is to be made by punishment : frugality,'
subserviency to compensation, popularity, and re-
missibility, to diminish the ej^pence: variabiBty
and equability are alike subservient to both l^ose
purposes.

x?:viii.

We now come to take i^ gepjera} survey of ^,J^^
the system of aftncar : that is, of such acts to ^^ «w«>d«
which, on account of the mischievous cdnstquences
they have a natural tendency to produce, and
in the view of putting a §top to those conse-
qAiences, i]t may be prjoper to annex a certain
aHifkial consequence, consisting of punishment,^
to be inflicted on the authors of such acts,
according to the principles just established'.

[ 56 ]

CHAP. XVI.

§ I. CLASSES OF 0FFBNCB8.
I.

Distiiictioii ♦ It is necessary, at the outset, to make a distinc-

between • ^ ^

what are tioii between such acts as are or may be, and

offences and

what OQght _____«____—

to be. " -^ —

Method * This chapter is an attempt to put our ideas of offences

thefoUowing ^^^^ ^^ exact method. The particular uses of method are
divisions, various : but the general one is, to enable men to under-
stand 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 pe-
culiar 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 ppssessing yrith 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 hipartitton^ dividing each superior branch
into two, and but two, immediately subordinate ones ; be^n-
^ ing with the logical whole, dividing that into two parts, then

CLASSES OF OFFENCES. 57

siich as ought to be offences. Any act may be an
offence, which they whom the conununity are in

each of those piarts 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 proper-
ties 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 ; o^
rather, strictly speaking, with acts which possess such pro-
perties 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 any thing in common. Whatever discoveries may be
made concerning them, how different soever their con-
gTuencies 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 ex-
pressing those discoveries by a conformable set of names.
Change the import of the old names, and you are in perpe-
tual danger of being misunderstood: introduce an intire 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 ma-
turer age. Gross ignorance descries no difficulties; im-

^d CLASSES OF OFFENCES.

the habit of obeying shall be pleased to make
one : that is, any act which they shall be pleased
• to prohibit or to punish. But, upon the prin-
ciple of utility, such acts alone ought to be made
offences, as the good of the community requires
should be made so.

No act Xhe ffood of the community cannot requirdji

ought to be ^ I fo t_-i_-

an offence that duy act should be made an offence, which is

but what is t A • i v j •

detrimental not liable, m somc way or other, to be detn*-

to the com- • i-i • i ^

mumty. mental to the commumty. For in the case of
such an act, all' punishment is gromdkss*.

III-
To be 80, it But if the whole assemblage of any number of

must be de- • n^'-iii •! ■% m»m ,•

trimentai to moividuals be considcred as constituting an ima^

some one or . -i i » •, i*j* i

more of its gmary compound body, a community or political
mem rs. ^^^^ . ^^y g^^^ ^j^g^^. jg detrimental to any one or

more of those members is, as to so much of its
effects, detrimental to the state.

IV,

These may Au act caunot be detrimiental to a state, but

be assign-
able or not. by being detrimental to sortie one or more of the

individuals that compose it. But these indivi-
duals may either be assigmbk^ or unassignable.

perfect knowledge finds them out> mi- str ug^ea with them :
it must be perfect knowledge that OYercomies them.
* See ch.' xiii. [Cases unm^t] ^ ii> 1.
Persons t [AsslgTiaUe J .1%at is» either by nfeune, or .at least by

assignable, description, in «uch manner as to be sufficiently distinguished

m^^^^^mmmmi^^^^^^mmmmmm'^

CLA8S£S OF OFFENCES* ^^

When there is any assignable individual tOj^^^^
whom an offence is detrimratal, that person may *^' ^^-
either be a person taker than the ofSdnAex, or the "^!^' ^

*■ others.

offender himself.

Offences that are detrimental, in the first in-- class i.

Private of-

stance, to assignable persons other than the of- fences,
fender, may be termed by one common name>
offences against individuals. And of these may be
composed the 1st class of o£fences. To contrast
them with offences of the Sd and 4th classes,
it may also sometimes be eonyenient to stile them
pr{V(7/e offences. To contrast them at the same
time with oflfences of the Sd class, they may be
stiled private extror^^ardi^ offences.

VII.

When it appears^ in general, that there are Class t.

. . • _ , Semi-public

persons to whom the act m question may be de- offeiices.
trimental, but such persons cannot be indi?i^
dually assigned, the circle within which it appeatrs
that they may be found, is either of less extent
than that which comprizes the whole community,
or not. If of less, the persons comprized within
this lesser circle may be considered for this
purpose as composing » body of themselves ;

from all*others ; for instanoe, by the circumfttance of being
the owner or occupier of such and such goods. See B« I, tit.
[Personation.] Supra, ch. xii. [Consequenceis] xv.

<50 CLASSES OF OFFENCES.

comprized within, but distinguishable from, the
greater body of the whole community. The
circumstance that constitutes the union between
the members of this lesser body, may be either
their residence within a particular place, or, in
short, any other less explicit principle of union,
which may serve to distinguish them from the
remaining members of the community. In the
first case, the act may be stiled an offence against
a neighbourhood : in the second, an oflPence against
a particular class of persons in the community.
Offences, then, against a class or neighbourhood,
may, together, constitute the 2d class of offences *.
To contrast them with private offences on the one
hand, and public on the other, they may also be
stiled semi-public offences.

Limits be- * With .regard to offences against a class or neighbour-
vatT"semV- ^00(3, it is evident, that the fewer the individuals are, of

public, and ^hich such class is composed, and the narrower that neigh-
public of' . ' , ,

fences, are, bourhood is, the more likely are the persons, to whom the

speakuje, offence is detrimental, to become assignable ; insomuch that,
iindis- in some cases, it may be difficult to determine concerning a
' given offence, whether it be an offence against individuals,
- or against a class or neighbourhood. It is evident also, that
the larger the class or neighbourhood is, the more it ap-
proaches 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.

^p^w^

^^^■9

^PPV

^^^^^^^^mgrnm^'^mmm^mmmmmmmmmmmmmmmmmf^

CLASSES OF OFFENCES.

VIII.

Offences, which in the first instance are detri- ^^^^ ^
mental to the offender himself, and to no one else, Seif-regard-

ing offences.

unless it be by their being detrimental to himself,
may serve to compose a third class. To contrast
them the better with offences of the first, second,
and fourth classes, all which are of a transitive
nature, they might be stiled intransitive* offences ;
but still better, self-regarding.

IX.

The fourth class may be composed of such acts ciaas 4.

Public of-

as ought to be .made offences, on account of the fences,
distant mischief which they threaten to bring
upon an unassignable indefinite multitude of the
whole number of individuals, of which the com-
munity is composed : although no particular indi-
vidual should appear more likely to be a sufferer
by them than another. These may be called
public offetices, or oflfences against the state.

A fifth class, or appendix, may be composed of Class 5.

1 T 1 • • MuUiform,

such acts as, according to the circumstances in offences, vie

1 Offences

which they are committed, and more particularly bj falsehood
according to the purposes to which they are a^ainsmust.
applied, may be detrimental in any one of the
ways in which the act of one man can be detri-
mental to another. These may be termed fnulti--
form, or heterogeneous offences^. Offences that

* See ch. vii. [Actions] xiii.

t 1. Offences by falsehood: 2. Offences against trust, ^^^^^^^^i'

69 CLASSES W OFFENCES.

^^' are in this case may be reduced to two great
heads: 1. Offences hy falsehood: and, 2. Offences
against trust.

language an also par. XX. to XXX. and par. LXVI. Maturer views
imise^-^ have suggested the feasibility, and the means, of ridding
ment the system 'of this anomalous excrescence. Instead of
considering these as so many dwmons of offaices, divided
into genera, correspondent and collateral to the several
genera distinguished by other appellations, they may be
considered as so many specific di£terences, respectively
applicable to those genera, Thus» in tlie case of a simple
personal injury , in the operation of which a plan of falsehood
has been employed : it seems more simple and more naiaral,
to consider the offence thus committed as a particular
species or modification of the genjis of offemce termed a simple
personal injury, than to consider the simple personal injury,
when effected by such means, as a modification of the di-
vision of offences entitled Offences through falsehood. By
this means the circumstsmces of the intervention of false-

•

hopd as an instrument i and of the existence of a par-
ticular 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, PremeditaHon, and conspiracy, on the one hand;
Provocation reomed, and inUmcaHony on the other. This
class will appear, but too. plainly, as a kind of botch m
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 reflection, must be ruled
by nomenclature, the work of popular caprice.

In the book of the laws, offences must therefore be treated

CLASSES OF OFFENCES. ^

^ S. Dmsums 4md mb-^^msiom.
Let us see by what method these classes may imvisIods of

C1&8S 1

be farther sub^vided. First, then, with regard i. offetica
offences against individuals. 8on.2— Pio.

of as much^as possible untler tiieir accustomed names. Oe-
nericalierms, v4ich are in cootinual use, and wbich express
ideas for iidiidb t¥ere are no' pther 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 ^e regular patt •of the
system in the form of an appendix* Though liiey cfwuiot,
wben eatire,'be made to rank under any of the ic^sfbes ^estt^-
blished in the rest of the system, the divisions to which they
give title may be broken down into lesser divisions, whicli
may not be alike intractable. By this means, bow discordant
soever with the rest of tiie system Aey may appcarix) be at
^st si^, on a okser inspection they may be foiid 4mhi»
foimable.

This ttust inevitably bje the case ivith the names of ^flfoooes, irregularity
^w4ftich are -so various and universal m their nature, as to be ^'^ ***" ®*****
capable, each of lliem, of dosng whatever mischief <oan be
done by any other kind or kinds of oflMAces Whatsoever.
Oilmces of this description may weU be called anomalous.

^uoh offences, it is plain, cannot b»t sh^W themselves —which
equally intractable under every kind of system. Up^i "wiiat- *^"!^ "°* ^

* •' J J r avoided on

ever principle the system be constructed, they otsnnot, any atiy other
of them, with any degree of propriety, be confined to any ^
one division. If, thei^efbre, they constitute a blemish in the
present system, it is sudi a bleiiiish as could not be avoided
but at the expence* of a greater. The class they are here

64 CLASSES OF OFFENCES.

^HAP. In the present period of existence, a man's

' — v^ being and well-being, his happiness and his se-

^c^id^"* curity ; in a word, his pleasures and his immunity

tion. 6-Per- from pains, are all dependant, more or less, in

son and pro- /» i • • i

pertj.— 6. the first place, upon his awn person ; m the next
reputation. . placc, upou the tjLterior objects that surround him.
These objects are either things, or other persons.
Under one or other of these classes must evidently
be comprised every sort of exterior object, by
means of which his interest can be affected. If
then, by means of any offence, a man should on
any occasion become a sufferer, it must be in one
or other of two ways : 1. absolutely, to wit, imme-
diately in his own person; in which case the
offence may be said to be an offence against his
person : or, 2. relatively by reason of some mate-
rial'*^ relation which he bears to the before-
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.

* See ch. vii. [Actions] iii. and xxiv.
In what t If> by reason of the word relaHon, this part of the divi-

°j^°®' sion should appear obscure, the unknown term may be got

CLASSES OF OFFENCES.

mentioned exterior objects may happen to bear, in ^'^^•
the way of causality (See ch. vii. Actions, par. 24.) ' — "^ — '
to his happiness. Now in as far as a man is in a

rid of in the following manner. Our ideas are derived, all and painde-
of them, from the senses; pleasurable and painful ones, Uf^reiaticoa
therefore, among the rest : consequently, from the operation ™«° J>®*" ^9
of sensible objects upon our senses. A man's happiness, jects.
then, may be said to depend more or less upon the relation
he bears to any sensible object, when such subject 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
pamve 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, % in a more or
less remote way, by acting upon, or being acted on by, soipe
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 dif-
ference is, that in the production of these, the pleasure or
pain may result immediately from the perception which it
accompanies: in the production of tfiose of the mind, it can-
not result from the action of an object of sense, any other-
wise 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. ▼. [Pleasures and Pains] xv. xxxi. Ch. x. [Motives] xxxix. note.
VOL. 11. p

^ CLASSES OF OFFENCES.

way to derive either happiness or security from
any object which belongs to the class of things,
such thing is said to be his property, or at least he
is said to have a property or an interest therein :
an offence^ therefore, which tends to lessen the
facility he might otherwise have of deriving
happiness or security from an object which be-
longs to the class of things, may be stiled an
offence against his property. With reg^d to
persons, in as far as, from objects of this class, a
man is in a way to derive happiness or security,
it is in virtue of their services: in virtue of some
services, whicji, by one sort of inducement or
another, they may be disposed to render him*.
Now, then, take any man, by way of example,
and the disposition, whatever it may be, which be
may be in to render you service, either has no
other connection to give birth or support to it,
than the general, one which binds him to the
whole species, or it has some other connection
more particular. In the latter case, such a con*-
nection may be spoken of as constituting, in your
favour, a kind of fictitious or incorporeal object
of property, which is stiled your condition. An
offence, therefore, the tendency of which is to
lessen the facility you might> otherwise have of
deriving happiness from the services of a person
thus specially connected with you, may be stiled

See ch. x. [Motives.]

mmmmmmmmmmmmmmmmmmmmmmmmmm^

CLASSES OF OFFENCES. ^

an offence i^inst your condition in life, or simply ^^y-
against your condition. Conditions in life must
evidently be as various as the relations by which

•

they are constituted. This will be seen more
particularly farther on. In the mean time, those

of husband, wife, parent, child, master, servant,

citizen of such or such a city, natural-born subject
of such or such a country, may answer the pur-
pose of examples.

Where there is no such particular connection,
or (what comes to the same thing) where the
disposition, whatever it may be, which a man is
in to render you service, is Hot considered as de-
pending upon such connection, but simply upon
the good-will he bears to you ; in such case, in
order to express what chance you have of de-
riving a benefit from his services, a kind of
fictitious object of property is spoken of, as being
constituted in your favour, and is called your
reputation. An offence, therefore, the tendency
of which is to lessen the facility you might other-
wise have had of deriving happiness or security
from the services of persons at large, whether
connected with you or not by any special tie,
may be stiled an offence against your reputation.
It app^rs, therefore, that if by any offence an
individual becomes a sufferer, it must be in one
or other of the four points above-mentioned ; viz.
his person, his property, his condition in life, or
his reputation. These soures of distinction, then.

^® CLASSES OF OFFENCES.

^»Y' may serve to form so many subordinate divisions,
' — v*"^ If any offences should be found to affect a person
in more than one of these points at the same
time, such offences may respectively be put under
so many separate divisions ; and such compound
divisions may be subjoined to the preceding
simple ones. The several divisions (simple and
compound together) which are hereinafter esta-
blished, stand as follows : 1. Offences against
person. 2. Offences against reputation. 3. Of-
fences against property. 4. Ofiences against
condition. 5. Offences against person and pro*
per ty together. 6. * Offences against person and
reputation together*.

XII.

Divisions of Ncxt with regard to ^emi-public offences. Pain,

- 1. Offences cousidcrcd with reference to the time of the act

lamitj^ ^ from which it is liable to issue, must, it is evident,

be either present, past, or future. In as far as it

* Subsequent consideration has here suggested several
alterations. The necessity of adding, to property, power,
in the character of a distinguishable as well as valuable ob-
ject or subject-matter of possession, .has presented itself to
view : and in regard to the fictitious entity here termed con-
dition (for shortness instead of saying conditum 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.

i|P9^9ippMippaHmi^Mi[^^iVHiiMM^^^^pr< mmt -iLPi.Miui^i lihsi ■

CLASSES OF OFFENCES. ^^

is either present or past, it canqtot be the result ^'•
of any act which comes under the description of a ' — v — '
semi-public oflFence : for if it be present or past,
the individuals who experience, or who have
experienced, it are assignable*. There remains
that sort of mischief, which, if it ever come to
exist at all, is as yet but future : mischief, thus
circumstanced, takes the name of danger^. Now,
then, when by means of .the act of any person a
whole neighbourhood, or other class of persons,
are exposed to danger, this danger must either
be intentional on his part, or unintentionalX* If
unintentional, such danger, when it is converted
into actual mischief, takes the name of a calamity:
offences, productive of such danger, may be stiled
semi-public offences operating through calamity; or,
more briefly, offences through calamity. If the
danger be intentional, insomuch that it might be
produced, and might convert itself into actual
mischief, without the eoncurrence of any calamity,
it may be said to originate in jnere delinquency :
offences, then, which, without the concurrence of
any calamity, tend to produce such danger as
disturbs the security of a local, or other subor-
dinate class of persons, may be stiled semi-pubUc
offences operating* merely by delinquency^ or more
briefly, offences of mere delinquency.

* Supra, iv. note. f See eh, xii. [Consequences.]

X See Ch. viii. [Intentionality.]

7® CLASSES OF OFFENCES.

XIII.

Sub-dwi- With regard to any farther sub-divisions, of-
^nces fences against calamity will depend upon the
through <». nature of the several calamities to which man.

lamitj, dU-

"MMcd. and the several things that are of use to him,
stand exposed. These will be considered in
another place *. •

xiv!

Offences of Scmi-public offcuccs of mere delinquency, will

mere delin- ^ . • • .

quencj, foUow the mcthod of division applied to offences

how thev

correspond agaiust individuals. It will easily be conceived,

with the di- ■, ^ , ,

visions of that whatever pain or inconvenience any given
Uiaxs. individual may be made to suffer, to the danger
.• of that pain or inconvenience may any number of

individuals, assignable or not assignable, be ex-
posed. Now there are four points or articles, as
we have seen, in respect to which an individual
may be made to suffer pain or inconvenience. If
then, with respect to any one of them, the con-
nection of causes and effects is such, that to the
' danger of suffering in that article a number of
persons, who individually are not assignable, may,

■ ft i

* See B. I. tit. [Semi-public offences.] In the mean time
' that oipeitUence may serve as an example. A man, without
any intention of giving birth to such a calamity, may expose
a neighbourhood to the clanger of it, by breaking quarantme
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.

■>^v^pm^iP'n*^"«wpi''<>wi^««i^«^^i^^paiv«*«M««HHMPi[aBim^p^^m

CLASSES OF OFFENCES. * 7 i

by the delinquency of one person^ be exposed^ ^^'»
such article will form a ground of distinction on ^
which a particular sub-division of semi-public
offences may be established : if» with respect to
any such article^ no such effect can take pface^
that ground of distinction will lie for the present
unoccupied : ready, however, upon any change of
circumstances, or in the manner of viewing the
subject, to receive a correspondent subdivision of
offences, if ever it should seem necessary that any
such offences should be created.

XV.

We come iiext to self-regardinff offences ; or. Divisions of

, , . Class 3. co-

more properly, to acts productive in the first in- incide with

stance of no other than a self-regardmg mischief: ciaasi.

acts which, if in any instance it be thought fit to

constitute them offences, will come under the

denomination of offences against one's self. This

class will not for the present give us much trouble.

For it is evident, that in whatever points a man is

vulnerable by the hand of another^ in the same

points may he be conceived to be vulnerable by

his own. Whatever divisions therefore will serve

for the first class, the same will serve for this.

As to the q^e81ions, What acts are productive of

a mischief of this stamp ? and, among such as are,

which it may, and which it may not, be worth

while* to treat upon the footing of offences?

■ ■' I ll I ■■ I 1 - > I ' '

* See cb. xiii. [Cases unmeet] § iv.

[

72 CLASSES OF OFFENCES.

^jj^* these are points^ the latter of which at least is,
"""•"v— ' too unsettled, and too open to controversy, to be
laid down with that degree of confidence which
is implied in the exhibition of properties which are
made use of as the groundwork of an' arrange-
ment. . Properties for this purpose ought to be
such as shew themselves at first glance, and appear
to belong to the subject beyond dispute.

. XVI.

Divisions of Public offcuccs mav be distributed under eleven

Class 4. ..." / .

divisions *. 1 . Offences against external security.

Exhaustive * ^^ ^^^ V^^ ^^ ^^ analysis, I have found it necessary

method de- to deviate in some degree from the rigid rules of the exhaus-
partedfrom« . .

tive method I set out with. By me, or by some one else, this
method may, perhaps, be more strictly pursued at some ma-
turer period of the science. At present, the benefit that
might result from the unr^laxed observance of it, seemed so
precarious, that I could not help doubting whether it would
pay for the delay and troubled 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 if carried to its utmost length at the first at-
tempt^ it might perhaps do more disservice in the way of
disgust, than service in the way of information. For know-
ledge, like physic, how salutary soever in itself, becomes no
longer of any use, when made too unpalatable to be swal-
lowed. Mean time, it cannot but be a mortifying circum-
stance 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.

DIVISION OF OFFENCES. , 73

2. Offences against justice. 3. Offences agahiat
the preoentvoe branch of the polkei 4. Offences
agamst the public yorcr. 5. Offences against the
po5t/n7e encrease of the national yeficzV^. 6. Of-
fences against the public wealth. 1. Offences
against population. 8. Offences against the juttional
wealth. 9* Offences against the sctoere^nty. \0.
Offences' against religion. 11. Offences against
the national interest in. general. The way in
which these several sorts of offences connect with
one another^ and with the interest of thepubUc^
that is^ of an unassignable multitude of the indir
viduals . of which that body is composed^ may be
thus conceived.

XVII.

Mischief by which the interest of the public as ^ .

^ , "^ of the nine

above defined may be affected^ must^ if produced fint divi-

aont one

at dl^ be produced either by means of an influence with an-
exeirted on the operations of government, or by
other means, without the exertion of such in-

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 willy therefore, be no great wonder if I should not
be able to quit it without reluctance. On the other handy
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.

-..."<

74 DIVISION OF 0FFENCC3*

Chap, fluence*. To begin with the latter case ; mischief^
"--v-^ be it what it will, and let it happen to whom it
wiU, must be produced either by the unaswted
powers of the agent in question, or by the in-
strumentality of soine other agents. In the lat-
ter case, these agents will be either persons or
things. Persons again must be either not mem-
bers of the community in question, or members.
Mischief produced by the i^stnrmentaUty of per-
sons, may accordingly be produced by the in-
strumentality either oies^emalox of internal adyer--
/ saries. Now when it is produced by the agent's

own unassisted powers, or by the instrumentaUty
of internal adversaries, or only by the mstru-
mentality of things, it is seldom that it can show
itself in any other shape (setting nside any in-
' fluence it may exert on the operations of govem*-
ment) than either that of an offisnce against
assignable individuals, or that of an ofibnee against
a local or other subordinate class of persons. If

* The idea o( goyeranent, it may be observed^ is intro-
duced here without any preparation. The fact of its being
establithed, I assiu&e as notorious, and the necessity of it as
alike obvious and 'incontestible. Observations indicating
that necessity^ if any sudii should be thou^t wotik 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 illustration. See ch. xii. [Consequences] ^ xvii.

DIVISION OF 0FFENCB8. 7^

there should be a way in which misdkief can be
produced^ by any of these means^ to indiTiduals
altogether unassignable^ it will scarcely be found
conspicuous or important enough to occupy a
titie by itself: it may accordingly be referred to
the miscellaneous head of offences ij^ainst the na-
tional interest in general.*. The only mischief^
of any considerable account^ which can be VDjsAe
to hnpend indismminately over the whole number
of members in the community^ is that complex
kind of mischief which results from a state of
war^ and is produced by the instrumentality of
external adversaries ; by their being provoked,
for instance, or invited^ or encouraged to inva-
sion. In this way may a man very well bring
down a miscliief^ and that a very heavy one^ upon
the whole community in general^ and that with-
out taking a part in any of the injuries which
came in consequence to be offered to particular
individuals.

* See infra, liv.' note. Even this head, ample as it is, and,
yague 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.

DIVISION OF OFFBNCES.

Next with regard to the mischief which an
<rfrence may bring upon the pubKc by its influence
oh the operations of the goverpment. This it
may occasion either^ 1. In a more immediate
way, by its influence on those operations them-
selves : 2. In a more remote way, by its influence
on the instruments by or by the help of which
those operations should be performed: or 3. In
a more remote way still, by its influence on the
sources from whence such instruments are to be
derived. First then, as to the operations of go-
vernment, the tendency of these, in as far as it is
conformable to what on the principle of utility it
ought to be, is in every case either to avert mis-
chief from the commiinity, or to make an addition
to the sum of positive good*. Now mischiefwe

* 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 com-
paratively 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 lan-
guage 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

DIVISION OF OFFBNCES. ' '

have seen, must come either from external ad-
versaries^ from internal adversairies/ or from ca^
lamities; With regard to mischief from external
adversaries, there requires no further division.
As to mischief from internal adversaries, the ex-
pedients employed for averting it may be dis-
tinguished into such as may be applied before the
discovery of any mischievous design in particular,
and such as can not be employed but in conse-
quence of the discovery of some such design : the
former of these are commonly referred to a branch
which may be stiled the preventive branch of the
police: the latter to that of justice*. Second,

goody no peculiar name, however inadequate, seems yet to
have been devised.

* 1lie 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 per-
sons, 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 t 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 naturalised. Taken all together, the idea be-
Ibnging to it seems to be too multifarious to be susceptible
of any single definition. Want of words obliged me to re-

78 DIVISION OF OFFENCES.

c«AF. As to the instruments which governsient^ whellier
in the averting of evil or in tlie producing of posi-
tive good^ can have to work with^ these must
be either persons or thirds. Those which are
destined to the particular function of guarding
against mischief from adversaries in general^ but
more particularly from external adversaries ^

dace the two branches here specified into one. Who would
haye endured in this place to have seen two such words as
the phthano-paranomic or crvme-preventing, and the phthano'
symphoric or ealamtty-preveniingt branches of the police?
the inconvenience 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 encrease of the national felicity, or of that
whicl^ employs itself in the management of the public
wealth. S^ infra, liv. note.

* It is from abroad that those pernicious enterprises are
most apt to originate, which come backed with a greater
(piantity of physical force than the persons who are in a more
particular sense die officers of justice are wont to have at
their command. Mischief the perpetration of which is en-
sured by a force of such magnitude, may therefore be looked
upon in, general as the work of external adversaries. Ac-
cordingly, when the persons by whom it is perpetrated, are in
such force as to bid defiance to the ordinary efforts of justice,
thifey loosen themselves from their original denomination in
proportion as they encrease in force, till at length they are

DIVISION OF OFFENCES. ^^

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 jpermanence enough to rebellion, and it settles into hos-
tility.

* It must be confessed, that in common speech the dis-*
linction 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

may be distiiiguisliad from the rest Under the ^^£*
coUe^tivo appellation of the public military force,
and^ for conciseness sake^ the military force. The
rest may be characterised by the collectiye ap-
pellation of the public wealth. Thirdly^ with re-
gard to the sources or fiinds from whence these
instruments^ howsoever applied^ must be derived^
such of them as come under the denomination of
persons must be taken out of the whole number
of persons that are in the community^ that is^ out
of the total population of the state : so that the
greater the population^ the greater may cateris
paribus be this branch of the public wealth ; and
the less the less. In like manner^ such as come
under the denomination of things may be^ and
most of them commonly are^ taken out of the
sum total of those things which are the separate
pr<^erties of the several members of the com-
munity : the sum of which properties may be
termed the national weaith * : so that the greater

80 DIVISION OF OFFENCES.

the national wealth, the greater ceteris paribus,
may be this remaining branch of the public
wealth ; and the less, the less. It is here to be
observed, that if the influence exerted •on any
occasion by aiiy individual over the operations of
the government be pernicious, it must be in one
or other of two ways : 1 . By causing, or tending
to c^iise, operations not to be performed which
ought to be performed ; in other words, by int-
peding the operations of government. Or, 2. By
causing operations to be performed which ought
not to be performed ; in other words, by misdi-
recting them. Last, to the total assemblage of
the persons by whom the several political opera-
tions above-mentionecj come to be performed, we
set out with applying the collective appellation
of the gaoernment. Among these persons there
commonly* is some one person, or body of per-

am mistaken if the language will furnish any other two words
that would express the distinction better. Those in ques-
tion 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.

* I should have been, afraid to have siaid necessarihf. In
the United Provinces, in the Helvetic, or even in the Ger-
manic body, where is that 6ne assembly in which an' absolute
power over the whole resides ? where was there in the Roman
Commonwealth ? J would not undertake for certain to find
an answer to all these questions.

DIVISION OF OFFENCES.

sons^ whose office it is to assign and distribute to ^^j';
the rest tiiieir several departments^ to determine
the conduct to be pursued by each in the perform-
ance of the particular set of operations that
belongs to him^ and even upon occasion to ex-
ercise his fiinction in his stead. Where there is
any such person, or body of persons, he or it may,
according as the turn of the phrase requires, be
termed the sacereign, or the saoereignty. Now it
is evident, that to impede or misdirect the opera-
tions of the sovereign, as here described, may be
to impede or misdirect the operations of the se-
veral departments of government as described
above.

From this analysis, by which the connection
between the several above-mentioned heads of
offences is exhibited, we may now collect a de-
finition for each article. By offences against ex^
temal security, we may understand such offences
whereof the tendency i» to bring upon the public
a mischief resulting from the hostilities of foreign
adversaries. By offences against justices, such of-
fences -whereof the tendency is to impede or mis-
direct the operations of that power which is em-
ployed in the business of guarding the public
against the mischiefs resulting from the delin-
quency of internal adversaries, as far as it is to be
done by expedients, which do not come to be ap-
plied in any case till after the discovery of some
particular design of the sort of those which they

VOL. II. G

83 mvlttOM OF OFFBNCB8.

Chap, ^e c^lciilated to prevent. By (^erices t^imist the
preoentm branch of thepoUce, mxh offibnises whei^
of tiie t^idency b to impede or ntusdirect tibe
Ulcerations of that pdwer which is eAiployed in
gi^rding against niiscye& resulting from the
deUnquency of internal adyersaries, by expedients
jdiAt cdme td be applied btfare-hand; or of that
whidi ii^ employed in^guarding agamst tfafe nmh
chiefs that might be occasioned by physical cala-
mities. By cffences against the public force, sndh
offences whereof the tendency is to impede or
misdireet the operations of that power which is
destined to guard the public from the mis(^^
which may result from the hostility of foreign
adyersaci^s, atld> m ease of necessity^ in the ca-
p^ity of ministers of justice, from miscfaie&'of
the mmiher of those which result flrom the delin-^
quency of internal adversaries.

By x^ffhwes agmmt the increase of the national
feU^Ug, such offences whereof the tendency is
to impede or misapply the op^ations of those
powers that, are employed in the conducting of
vajcions dstafaiisments, which are calculated to
make^ in so many different ways^ a p6^ye ad^
dition to the stock of public happiness. - fiy of-
fences against the public ztealth^ .i^ch ofifences
whereof the tendency is to diminish the amount
or misdirect the application of the mondy, and
other artides of wealth, which the government
reserves as a fand, out of whidi the stock of in-

^IB^VHH

9nai

DlTIfiSON OF OFPfiNCES. 83

strtoMfRto employed in the service above-*moii. ^«j^*'
tkmed may bfe kept up* By fences againit po- ^— %r-
piMia&hy 6uch offences whereof the tendency is to
^iminiBh the tiuraibers or inrpair the politicdi^raiiie
of liie suoi total of the meittbierls of tbe^ cooai-
manity. By oJ[inoes dgaimt the naiionai wea&h
snch (fences whereof the tendency is to dinuhidi
the quantity, or impair the yalu«, of the things
which compose tte separate properties or estates'
<lf the several members of thc^ coikmiumty .

xviii-
In this deebiction, it may be tisked, what place Connectioii
is left for reHgianf This we shall see presently, against i«-
For combating the various kmds of o&nces above |r^.
enumerated, that % iot combating^ a11 the oflfenoes ^^ ^"^
(those not exce^iited which we are now about
considering) which it is in nmn'^s nature to com-
mit, the stiiie hns two great engines^ puni^ibxsettf
and ^reward: ponidmient, to be. applied t^ aU,
Imd upon all ordinary lOCcasiQns/, rewiksd, to be
apfilied to a few, fbr parti^mlar puiposesl, and
iq>on .extraordinary occasions. , fiut whether or
no a man hais done the act which renders him tUsi
object meet for punishment w rewaid, the ^es
of those, whosoever they be, to whotn the ma-
nagement of these engines is entrusted cannot
always see, nor, where it is punishment that is to
be administered, can their hands be always sure
to reach him. To supply these deficiencies in
point of power, it is thought necessary, or at least

8* DIVISION OF OFFENCES.

useful, (without which the truth of the doctrine
would be nothing to the purpose) to inculcate
into the minds of the people the belief of the ex-
istence of a power applicable to the same pur-
poses, and not liable to the same deficiencies '
the power of a supreme invisible being, to whom
a disposition of contributing to the same ends to
which the several institutions already mentioned
' are calculated to contribute, must for this pur-
pose be ascribed. It is of course expected that
this power will, at one time or other, be employed
in the promoting of those ends : and to keep up
and strengthen this expectation among men, is
spoken of as being the employment of a kind of
allegorical personage, feigned, as before*, for
^convenience of discourse, and styled religion. To
diminish, then, or misapply the influence of re-
ligion, is pro tanto to diminish or misapply what
power the state has of combating with effect any
of the before enuifaerated kinds of offences ; thai
is, all kinds of offences whatsoever. Acts that
appear to have this tendency may be styled (rfl
fences against religion. Of these then may be
composed the tenth division of the class of of-
fences against the state f.

' . I i ■ ! 1

• See par. xvii. with regard to justice,

t It may be observed, that upon this occasion I copsider
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

..HU - ■■■ .^.^r - ..^--^«_>-.^>..^-.

-^ppiPimBHP«iiipgi«iP^iM«i!npHin9PiP«^WH^*«p«a^^M \wm n vmdp"«-> i ■■ m* <v

DIVISION OF OFFENCES. 65

XIX. c.-

If there be any acts which appear liable to ^I^JJJJcttei
affect the state in any one or more of the above oitfeocn

•^ , against die

ways, by operating in prejudice of the external n^^onai in-
security of the state, or of its internal security; general wUh
of the public force ; ' of the encrease of the na-
tional felicity ; of the public wealth ; of the na- ,
tional population, of the national wealth ; of ihe
sovereignty ; or of religion ; at the same time
that it is not clear in which of all these ways

better life to come, this is a matter which monies not within
the cognizance 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 unsus-
ceptible of pain ? How should an offence affect him? Should

' it be an offence against his person, his property^ his reputa-
tion, or his condition ?

It has commonly been the way to put offences against re-
ligion foremost. The idea of precedence is naturally enough
connected with that of reverence. Ex Am^ apx»/A€ad'a. But
for expressing reverence, there are other methods enough
that are less equivocal. And in point of method and per-
spicuity, 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 pu-
nishing them, can be understood, but from the consideration
of the several mischiefs which result from the several other
sorts of offences. In a politicsd view, it is only because
those others are mksthievous, that offences against religioa
are so too.

^ DIVISION OF OFFENCES.

f^'- they win aflPect it most, nor but that, according
\ to contingmcies, they ma; affect if is one of
these ways only or in another ; sudi acts may be
collected together imder a misceUaneous ^vision
by tli6mselves> and styled offem^ agairut tic mt-
iwnal interest in gmeml. Of these then nmy be
composed the eteventh and last diinsion of the
class of o&nces against the state.

Sab-dWi. \ye come now to class the fifth : consisting of
ciaM5enu. muttiform offences. These, as has been already

mer&ted. • -^ ^ ''

1. DiTisioDs intimated, are either offences by falsehood, or of-

of offeoces

byfaUe- fences concerning trust. Under the head of
offences by' falsehood, may be comprehended, 1 •
Simple falsehoods. Q. Forgery. 3. Personation.
4* Perjury *. Let us observe in what particulars

* This diTision 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 fakehood when uttered by writing, is distinguished
from the same falsehood when uttered by wcHid of mouth ;
and has had a particular name given to it tccordingty. I
mean, where it strikes against reputation ; in whtch'case, the
instrument it has been uttered by has be^n called a Ubel.
Now it is obvious, that in die same manner it might have re-
ceived a distinct name in all other cases where it is littered
by writing. But there has not haj^ened to be any thing in
particular that has disposed mankind in those cases to give
it sttch a name. The case is, that among the infinity of cir-

mmmmmmmmmmmmmmmmm

rnvmcrn or ofvences. 97

these &iir lands of faLseliood agree, and in wliat ^_^'-
they diffi^. ^ w ^

XXL

O&aces hy falsdioed^ howev^ diversified in oiEenoes by
otlier particulars^ have this in common, tiiiat they mwbattbey
odnsist in some abuse of the hcvity of discourse^oiM another,
or rather as we shall see hereafter, of the faculty
of influencing the sentiment of belief in other
men*, whether by discourse or otherwise. The
use of discourse is to influence belief, and that in
such manner as to give other men to understand
that things are as they are really. Falsehoods, of
whatever kind they be, agree in this : that they
give men to understand that tlungs are otherwise
than as in reality they arie.

xxn.

Personsrtion, fOTgery, and perjury, are each <^f J^^ J^J^
them distinguished from other modes of uttering
ffiilsehood by certain special circumstances. When
a falsehood is not accompanied by any of those
circumstances^ it may be styled simple Mseheod.
These drcumstances are, 1 . The form in which

' ~_ — > f

cumstances by which it might have been diyersifiedy those
which constitute it a libel, h^f^pien to hftVe engaged a pecu-
liar share of attention on the part of the institutors of 1«&-
guage; either in virtue of the influence which these carctMb-
stances have on the tendency of the aet, or m virtue of any
partieular degree of forlee with which on any otiier e^douat
they may have disposed it to strike upon the imagination.
* See B. I. tit. [Falsehoods.] ,

88 DIVISION OF OFFENCES.

the falsehood is uttered. 2. The circumstance of
its relating or not to the identity of the person of
him who utters it. 3. The solemnity of the oo-
casion on which it is uttered*. The particular
application of these distinctive characters may
more dommodiously be reserved &r another
place f.

XXIII.

soWivi- Yf^ come now to the suh-divisions of offences

8IOD8 of Of-

feh^r *d ^y falsehood. These will bring us back into the
•re deter* regular track of analysis^ pursued, without de-
tbe divi- viation, through the four preceding classes.
preceding By whatcvcr means a mischief is brought about,
whether fabehood be or be not of the number, the
individuals liable to be affected by it must either
be assignable or unassignable. If assignable,
there are but four material articles in respect to
which thjey can be affected : to wit, their persons
their properties, their reputations, and their con-
ditions in life. The case is the same, if, though
unassignable, they are comprisable in any class
subordinate to that which is composed of the

* There are two other cirpumstances still more material ;
viz. 1. The parties whose interest is affected : by the false-
hood. 2. The point or article in which that interest is. af-
fected. These circumstances, however, enter not into the
composition of the generical character. Their use is, as we
shall isee, to characterize the several species of each genus.
See 6. 1, tit. [Falsehoods.]

t Ibid.

I " ■- 1 ^m^^wm^mtm^f^^^^^mm^i^m'f^i'i'mmmmmmmfmmmmmmfmmtmiammum^

DIVISION OF OFFENCES. » * 89

whole number of members of the state. If the C"^'-
falsehood tend to the detriment of the whole state^ ^ v ^
it can only be by operating in one or other of the
characters^ which every act that is an offence
agsdnst the state must assume ; viz. that of an
offence against external security^ against justice,
against the preventive branch of the police, against
the public force, against the encrease of the na-
tional felicity, against the public weath, against
the national/ population, against the national
wealth, against the sovereignty of the state, or
against its religion.

XXIV. ^

It is the common property, then, of the offences offences d
that belong to this division, to run over the same lomeilT"
ground that is occupied by those of the preced- :S!^\j^r
ing classes. But some of them, as we shall see, ^[^i^^
are apt, on various occasions, to drop or change
the names which bring them under this division :
this is chiefly the case with regard to simple false-
hoods. Others retain their names unchanged;
and even thereby supersede the names which
would otherwise belong to the offences which they
denominate : this is chiefly the case with regard
to personation, forgery, and perjury. When thi.
circumstance then, the circumstance of falsehood,
intervenes, in some cases the name which takes
the lead^ is that which indicates the offence by
its effect ; in other cases, it is that which indi?-
cates the expedient or instrument as it were, by

eo BurisHiN or obrnoesl

the help of which the offence is coxaaj^ted. Fajl^^r
hood^ take it by itself^ consider it as npt heii^
accompanied by any othef n^^terial cif c^un^jtfviice^
nor therefore productive of any material effects,
can never, upon the principle of utility, epnstit^t^
any offence at all* Copibined with other cir<-
cumstances, there is scare? apy spr^ of p^rAidoa*?
effect which it may not be instrumental in pri>-
ducing. It is therefore rather in compliance yfii^
the laws of language, than in consideratipn of ^f
nature of the things themselves, that falsehoo4ff
are made separate mention of under the namiQ
and in the character of distinct offences. All this
would appear pla^ ei^ough, if it were isyow a
time for entering into particulars ; but t)^at ig
what can not be done, eo|xsistei>tJy lyith V^ P™^"*
ciple of order or convemence, until the i^iferior
divisions of those other classes i^)\aU l^av§ be^n
previously exhibited.

jg^v.

A trust— Wj^ comp now to offences against ^us^, ^

trust is^ wl^ere there is any partiqular act wl^h

one party, in the exercise of some power, or soqfie

right ^, which is conferred on him, i^ bound to

Powir and * Powers, tbongb not 9 9pecies of rig^ (foi the two sorts
D^complete ^ ficlitiQUB entities, tertned a power and a right, are $4tpge-
definidoQ - ther disparate) are yet so far included under rights, th^^t

u here ffiTeo *

of them. wherever the word power may be employed, the word right

may also be employed : The reason is, that wherever you may

apeak of a person as having a power, you may also speak of

mii^^^^''^mm^'^^mmmmmmmm^Km^mmmmmmmfmfm^mmKm^mmi9^mmmm^r^mmi^mmc^'

PIYUIION OF OFfSNGSS. ^ 91

perform ht the benefit of another. Or, more
fiilly, thus : A party 'ia smd to be invested with a

him 9A haying a right to such pQ^r : but the conterse of
this propoBitipn do^s xkot bold gpod: there are cases io
ifhichy though you may speak of a man as haying a fights
you can not speak of him as having a power, or in any oth^
way make any mention of that word. On various occasiQiui
you have a right for instance/ to the services of the magis'*
trate : but if you are a private person, yoi^ have no |V)t0er
over him : all the power is on his side. This being the csse»
as the word right was employed^ the word power might,, pei-?
haps» without aiiy deficiency in the sense, have been omiU^d,
On the prei^ent opcasion howey^r^ as i^ speaking of trusts this
word is commonly made more use of than the word rights U
a«emcd most eligibly, for the sake of perspicuity, to iiiseft
|}ie,mbQth.

It may be expec^d that, sin(!e thieword tr%st has be^
bjsre expoundedi th^ word^ ppto^ and right, upon the mean-
ing of which the exposition of the lypcd trmt is made to
4^>end, should be expounded also : and certain it is, that m>
two words can stand more in need of it than these do. Such
exposition I accordingly set about to giv», and indeed have
actually drawn up : but the details into which I found it- ni^
cessary to enter for this fttrpose^ Were of such length as to
take up more room than could consistently be allotted t^
tben^ in this place. With respect to these words^ therefoiret
and a number of others, i^uph s$ ppssefisiau^ titles and the Ul^,
which in point of import are inseparably connected witb
them, instead of exhibiting tl^ exposition itself, I must
content myself with giving % general i4^i» of the pl^ which
'I have pursued in framing it : and ^A to every thing elser I
must leave the import of them to rest upon whf^tevei* fopting
it may happen to stand upon in the apprehension of e9ck
reader. Power and right, and the whol^ tribe of fictitious en-

^ DIVISION OP OFrtNdSS.

vvr^* trust, when, being invested with a power, or with
a rigfU, there is a certain behaviour which, in me

titles of this stamp^are all of them in the sense which belongs
to them in a book of jurisprudence, the results of some mani-
festation 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 uncom-
manded. Now, to render the expression of the rule more
concise^ the commanding of a positive act may be repre-
sented by the prohibition of. the negative act which is
* dpposed to it. To know then how to expound a right, carry

your eye to the act which, in the circumstances m 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 pro-
hibition, and by command : by prohibition of such acts
(on the part of other persons) as ace 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 6r 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 indi-
vidual, a subordinate class of individuals, or the public, it
thereby imposes on some other party a duty or obUgaHon
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
ha^ve rights to correspond to them : self-regarding, none.
That the exposition of the words power and right must, in

?"«WWIPW»iPBWr^!^iPi^nF^»l"""»W^'""*^^^

DIVISION OF OFFENCES. 53

exercise of that, power, or of that right, he is Chaf..
bound to maintain for the benefit of dome other

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 pro-
perty 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 pro-
hibitions, by which the powers and rights that compose those
several modifications are created, are of many di£ferent forms:
to comprize 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 sepa-
rate the one of these branches from the other, a pretty ample
description will be found in the next chapter : from which
soine 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. Iv. 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

9* DIVISION CW OFFENCBS.

Cbav. party. In such case^ the party first mentioned ki
styled a trustee : for the o&er party, no name
has ever yet been found : for w^it of a name,
thtere seems to be no other resource than to give
a new and more extensive sense to the word iewe/?-
ciary, or to say at length the party to be benefitted**

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 : t 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^ obUgaHorif and a multitude of
others of the same stamp being of the number of those fic-
titious entities, of which the import can by nO other means
be fllustrated than by showing the relation which they bear
to real ones.

* 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 this highest degree ob-
scure. The phrase in full length would run in some such
manner as this : cestuy al use de qui le trust est cr66; he to
whose use the trust or benefit is created. In a particular
case, a cestuy que trust is called by the Roman law, Jldei--
commissarius. In imitation of this, I have seen him some-
where or other called in English dLjide-committee. This term
however, seems not very expressive. A fide-committee, or»
as it should have been, a ,/f{2«i-committee, seems, literally

t See FragniJeot <^f OoTemmeut, cfa. ▼. $ 6, note.

^mpm

BITlfllOH OF OWEKCfiSr. ^

The trustee }s ^Iso said to luave a Irust inx7»«
/erred ox in^ed upon him, ta. be mcMed with a
triist> tQ have had 9 tru«t ^iveh him to exec^t^;,
to perform, to disehargfe^ oif to fulfil. The paarty
to be- benefitted^ is said to have a trubt estaUished
or created in his favour: and so oil through a
variety of other phrases.. Oflfences

againat
XXVI.

Now it may occur, that a trust is oftentimes

speakings 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, itf
order the more effectusilly 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 constitues u legal obliga-
tion in any case? A command, express or virtual, together
with punishment appoiiited foir the breiach of it. By th^
same means may an obligation be constituted in tUis case a»
well as any other. Instead of the word beneficiary, which I
found it necessary* to adopt, the sense would be better ex-
pressed by soMe such word as benejmendary, (a word anala-
gous in its formation to referendary) were it such an one as the
eat could bring itself to indure. This would put it more
dfectually out of doubt, that the party meant was the party
wKo ought to rebieive the benefit, whether he actually receives
iter no: whereas the word beneficiary might be undetstood to
intimate, that the benefit, was actually received : while in
offences against trust the mischiefs commonly is, ihat such
benefit is reaped not by the person it was designed for, but
by some other : for instance; the trustee.

W DIVISION OF OFFENCES.

CaA V. spoken of as a species of catuUtion * ; that a trust
>pr^ is also spoken of as a species of property : and
dition, imd that a Condition itself is also spoken of in the

property, ^

why ranked same liffht. It mav be thouffht, therefore, that

under sepa- . ...

rate din- in the first class, the division of offences against
condition . should have been included under that
of the offences against property : and that at any
rate, so much of the fifth class now before us as
t*ontains offences against trust, should have been
included under one or other of those two divi-
sions of the first class. But upon examination it
will appear, that no one of these divisions could
with convenience, nor even perhaps with pro-
priety, have been included under either of the
other two. It will appear at the same time, that
there is an intimate connection subsisting amongst
them all : insomuch that of the lists of the offences
to which they are respectively exposed, any one
may serve in great measure as a model for any
other. There are certain offences to which all

■* It is for shortness' sake that the proposition is stated as
it stands in the text. If critioally examined^ it might be
found, perhaps, to be scarcely justifiable by the laws of lan-
guage. For the fictitious entities, characterized 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. fhe con-
dition of a trustee. We s^peak of the cokidition of a trustee
as we speak of the condition of a husband or a father.

DIVISION OF offences: ""^7

trusts as such are expose^ : to all these offences Chi».
every sort of condition will be found exposed : at
the same time thJit particular species of the of-
fences against trust will, Apon their application
to particular conditions, receive diflPerent parti-
cular denominations. It wiU appear also, that of
the two groupes of offences into which the list of
those against trust wiU be found naturally to
divide itself, there is one, and but one, to which
property, taken in its proper and more confined
sense, stands exposed: and that these, in their
application to the subject of property, will be
found susceptible of distinct modifications, to
which the usage of language, and the occasion
there is for distinguishing them in point of treat-
ment, make it necessary to find names.
* In the first place, as there are, or at least may
be (as we shall see) conditions which are not
trusts*, so there are trusts of which the idea Would
not be readily and naturally understood to be
included under the word condition : add to which,
that of those conditions which do include a trust,
the greater number include other ingredients
along with it : so that the idea of a condition, if
on the one hand it stretches beyond the idea of
a triist, does on the other hand fall short of it.
Of the several sorts of trusts, by far the most
important are those in which it is the public that

* Infra; Iv.
VOL. II. H

99 DIVISION OF OFFENCES.

x^r stands in the relation of beneficiary. Now these
trusts^ it should seem^ would hardly present
themselves at first view upon the mention of the
word condition. At any rate, what is more ma-
terial, the most important of the offences against
these kinds of trust would not seem to he included
under the denomination of offences against con-
dition. The offences which hy this ktter ap-
pellation would he hrought to view, would he
such only as seemed to affect the interests of an
individual: of him, for example, who is con-
sidered as being invested with that condition*
But in offences against public trust, it is the in-
fluence they have on the interests of the public
that constitutes by much the most material part
of their pernicious teadency: the influence they
have on the interests of any individual, the only
part of their influence which would be readily
brought to view by the appellation of offences
against condition, is comparatively as nothing.
The word trust directs the attention at once to
the interests of that party for whom the person
in question is trustee : which party, upon the ad-
dition of the epithet public^ is immediately under*
stood to be the body composed of the whole as-
semblage, or an indefinite portion of the whole
assemblage of the members of the state. The idea
presented by the words public trust is clear and
unambiguous : it is but an obscure and am-
biguous garb that that idea could be expressed

DIVISION OF OFFENCES.

in by the words public condition. It appears, ^"^J-
therefore, that the priiicipal part of the offences,
included under the denomination of offences
against trust, could not, commodiously at least,
have been Included under the head of offences
against condition.

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

Nor would it have been less improper to have
included conditions, all of them, under the head
of property : and thereby the whole catalogue of
offences against condition, under the catalogue of
offences against property. True it is> that there
are offences againt condition, which perhaps with
equal propriety, and without any change in their
nature, might be considered in the light of of-
fences against property: so extensive and so
vague are the ideas that are wont to be annexed
to both these objects. But there are other of-

100 DIVISION OF OFFENCES.

c«AP. fences which though with unquestionable pro*
priety they might be referred to the head of of-
fences against condition, could not, without the
utmost violence done to language, be forced un-
der the appellation of offences against property.
Property, considered with respect to the pro-
prietor, implies invariably a benefit, and nothing
eke: whatever obligations or burthens may, by
accident, stand annexed to it, yet in itself it can
never be otherwise than beneficial. On the pa}rt
of the proprietor, it is created not by any com-
mands that are laid on hiin, but by his being left
free to do with such or such an article as he likes.
The obligations it is created by, are in every in-
stance laid upon other people. On the other
hand, as to conditions, there are several which
are of a mixt nature, importing as well a burthen
to him who stands invested with them as a be-
nefit: which indeed is the case with those con-
ditions which we hear most of under that name,
and which make the greatest figure.

There are even conditions which import no-
thing but burthen, without any spark of benefit.
Accordingly, when between two parties there is
such a relation, that one of them stands in the
place of an object of property is applied only on
one side ; but the word condition is applied alike
to both : it is but one of them that is said on that
account to be possessed of a property ; but both
of them are alike spoken of as being possessed of

mmmmmmmmm^^mmmmm

DIVISION' OF OFFENCES. ^^1

Or being invested with a condition: it is the ^^j'-
master alone that is considered as possessing a
property, of which the servant, in virtue of the
services he is bound to render, is the object : but the
servant, not less than the master, is spoken of as
possessing or being invested with a condition.

The case is, that if a man's condition is ever
spoken of as constituting an article of his pro-
perty, it is in the same loose and indefinite sense
of the word in which almost every other offence
that could be imagined might be reckoned into the
list of offences against property. If the language
indeed were in every instance, in which it made use
of the phrase, object of property, perspicuous enough
to point out under that appellation the material
and really existent body, the person or the thing in
which those acts terminate, by the performance
of which the property is said to be enjoyed; if, in
short, in the import given to the phrase object of
property, it made no other use of it than the put-
ting it to signify what is now 'called a corporeal
d^ect, this difficulty, and this confusion would
not have occurred. But the import of the phrase
ol^ect of prope?^ty, and in consequence the import
of the word property, has been made to take a
much wider range. In almost every case in
which the law does any thing for a man's benefit
or advantage^ men are apt to speak of it, on some
occasion or other, as conferring on him a sort of
property. At the same time, for one reason or

^Oi PIVISION OF OFFENCES.

c«^p. other, it has in several cases been not practicable,
or not agreeable, to bring to view, under the
appdlation of the object of his property, the thing
in which the acts, by the performance of which
the property is said to be enjoyed, have their
termination, or the person m whom they have
their commencement. Yet something whichcould
be spoken of under that appellation, was ab-
solutely requisite *• The expedient then has been

* 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
hav0 made that part of it which consists of the words aman^s
property, perform the office of the whole. In some cases
then it was only on a part or the object that the acts in
question might be performed : and to say, on this account,
that the object was a man's picoperty, ws^s 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 pro-
perty, was as much as to intimate that any acts whatever
might be exercised on it. Sometimes the actsii^ quectioA w^e
not to he exercised but at a future time, fior then, perhaps, biit
in the case of the happening of a particular event, of i^di
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. Some-
times the object on which the acts in question were to have
their termination, or their commencement, was a humai^
creature : i^nd, to speak of one human creature as being the

^•^■^"^^"WIlMi^^^^MHiMVP^iVii^WVV^VVSIVnHHVHiViPiiPPi^HHaPBiaMMBWniaHPVHViVSWrapaVHiiVIHI

DIVISION OF OFFENCES. 10^

to create, as it were, on every occasion, an ideal Ch^p*
being, and to assign to a man this ideal being for
the object of his property : and these are the sort
of objects to which men of science, in taking a
view of the operations of the law in this behalf,
came, in process of time, to give the name of
incorporeal Now of these incorporeal objects of
property the variety is prodigious. Fictitious
entities of this kind have been fabricated almost
out of every thing : not conditions only (that of a
trustee included) but even reputation have been of
the number. Even liberty has been considered
in this same point of view: and though on so
many occasions it is contrasted with property 9 yet
on other occasions, being reckoned into the ca-

property of another is what would shock the ear every where
but whe#e slavery, is established, and even there, when ap-
plied 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 civilized 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* like hus-
band's pn^erty, 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;

..A.

The contortium, says the Englith Law.

104 DIVISION OF OFFENCES.

^^»' talogue of possessions^ it seems to have been con-
sidered as a branch of property. Some of these
applications of the vrords property, object of pro-
perty, (the last, for instance) are looked upon«
indeed^ as more figurative^ and less proper than
the rest : but since the truth is, that where the
immediate object is incorporeal, they, are all of
them improper, it is scarce practicable any where
to draw the line.

Notwithstanding all this latitude, yet, among
the relations in virtue of which you are said to be
possessed of a condition, there is one at least
which can scarcely, by the most forced construc-
tion, be said to render any other man, or any other
thing, the object of your property. This is the
right of persevering in a certain course of action ;
for instance, in the exercising of a certain trade.
Now to confer on you this right, in a certain de-
gree at least, the law has nothing more to do than
barely to abstain from forbidding you to exercise
it. Were it to go farther, and, for the sake of
enabling you to exercise your trade to the greater
advantage, prohibit others from exercising the
like, then, indeed, persons might be found, who in
' a certain sense, and by a construction rather
forced than otherwise, might be spoken of as being
the objects of your property : viz. by being made
to render you that sort of negative service which
consists in the forbearing to do those acts which

^qnpp^^aq|Bg9«HpqpB9P^iM^^HiMmwnMWSii«^^»«ii n im •« ' •■« ■•f^^»»W^WIm j i iv ii . i i p i ■■ma" >ji > ww * w i i

■«« I ■ • I ■ ■•• V

DIVISION OF OFFENCES. ^^ \

would lessen the profits of your trade. But the Cha».
ordinary right of exercising any such trade or pro-
fession^ as is not the object of a monopoly^ imports
no such thing ; and yet, by possessing this right,
a man is said to possess a condition : and by for-
feiting it, to forfeit his condition.

After all, it will be seen, that there must be
cases in whkh, according to the usage of Ian-
j^uage, the same offence may, with more or less
appearance of propriety, be referred to the head
of offences against condition, or that of offences
against property indifferently. In such cases the
following rule may serve for drawing the line.
Wherever, in virtue of your possessing a pro-
perty,' or being the object of a property possessed
by another, you are characterised, according to
the usage of language, by a particular name, such
as master, servant, husband, wife, steward, agent,
attorney, or the like, there the word condition may
be employed in exclusion of the word property :
and an offence in which, in virtue of your bear-
ing such relation, you are concerned, either in
the capacity of an offender, or in that of a party
injured, may be referred to the head of offences
against condition, and not to that of offences
against property. To give an example: Being
bound, in the capacity of land steward to a certain
person, to oversee the repairing of a certain bridge,
you forbear to do so : in this case, as the services

IM DIVISION OF OFFENCES.

Ohaf. you are bound to render are of the number of

XVI. ^

those which give occasion to the party^ from whom
they are due^ to be spoken of under a certain
generical name^ viz. that of land steward^ the
offence of withholding them may be referred to
the class of offences against condition. But sup*
pose that, without being engaged in that general
and misceUaneous course of service, which with
reference to a particular person would deno-
minate you his land steward, you were bound,
whether by usage or by contract, to render him
that single sort of service whiph consists in the
providing, by yourself or by others, for the re-
pairing of that bridge : in this case, as there is
not any such current denomination to which, in
virtue of your being bound to render this service,
you stand aggregated (for that of architect, ma-
son, or the like, is not here in question) the of-
fence you commit by withholding such service
can not with propriety be referred to the class of
offences against condition: it can only therefore
be referred to the class of offences against pro-
perty.

By way of further distinction, it may be re-
marked, that where a man, in virtue of his being
bound to render, or of others being bound to
render him, certain services, is spoken of as pos-
sessmg a condition, the assemblage of services is
generally so considerable, in point of duration, as

DIVISION OF OJPFENeBS.

107

to constitute a course of considerable length, so Cm,
as on a variety of occasions to come to be varied
and repeated : and in most cases, when the con-
dition is not of a domestic nature, sometimes for
the benefit of one person, sometimes for that of
another. Services which come to be rendered to
a particular person on a particular occasion,
especiaUy if they be of short duration, have sel-
dom the effect of occasioning either party to be
spoken of as being invested with a condition.
The particular occasional services which one man ,
may come, by contract or otherwise,' to be bound
to render to another, are innumerably various :
but the number of conditions which have names
may be counted, and are, comparatively, but few.

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

These di£Siculties being cleared up, we now
proceed to exhibit an analytical view of the se-
veral possible offences against trust.

108 DIVISION OF OFF£NC£!S.

XXVII,

^^j^ OflFences against trust may be distinguished^ in
against trust the first place> into such as concern the existence

— -their ooD- ^

nectkn with of the trust in the hands of such or such a person^

eadi other.

and such as concern the exercise of the functions
that belong to it*. First then^ with regard to

* We shall have occasion, a little farther on, to speak of
the person in whose hands the trust exists, under the de-
scription of the person who possesses, or is in posi^essioii 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 irre-
gular 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 modi-
fied : so likewise in regard to conditions, and in regard to
property. The being invested with, or possessing a condi-
tion : 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 6f pro-
perty ; that is, if the object of it be corporeal, the occupation.
These verbal discussions are equally tedious and indis-
pensable. 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 com-
plete set of new ones is impossible. Alt that can be done
is, to make here and there -a new one in cases of absolute

DIVISION OF OFFENCES. 109

such as relate to its existence. An offence of c«af.
this description^ Uke one of any other description^
if an offence it ought to be^ ibust to some person
or other import a prejudice. This prejudice may
be distinguished into two branches : 1 . That which
may fall on such persons as are or should be in-
vested with the trust : 2. That which may fall on
the persons for whose sake it is or should be in-
stituted^ or on other persons at large. To begin
with the former of these branches. Let any trust
be conceived. The consequences which it is in
the nature of it to be productive of to the pos-
sessor^ must^ in as far as they are material^, be
either of an advantageous or of a disadvantageous
nature : in as far as they are advantageous^ the
trust may be considered as a benefit or privilege :

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 de-
monstration would lead us too far out of the ordinary track
of language.
1* SeeCap.vii. [Actions.] HI.

110

CLASSES OF OFFENCE!^.

o-- i. « ftr « Aey „e di««lv«.tagaou., it may U
considered as a burthen ♦. To consider it then upon
the footing of a benefit. ^ The trust either is of the
number of those which ought by law to subsist f;

* If advantageous, it will naturally be on account of the
powers or rights that are annexed to the trust : if disadvan-
tageous, on account of the duties,
^ t 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 m^ 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 aU 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, unques-
tionably, upon the principle of utility, it may be said with
equal truth of those operations by which a trdst, 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, yon 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 some-
thing 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 ^e
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

v^^^lw^qp^l^'^^

CLASSES OF OFFENCES.

Ill

that is, which the legislator meant should be Cha*;
established ; or is not. If it is, the possession
which at any time you may be deprived of, with
respect to it, mUst at that time be either present
or to come : if to come (in which case it may be
regarded either as certain or as contingent) the
investitive event, or event from whence your

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 w^ich 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, mui$t 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 Qases, would take up more room than could con-
sistently 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 x>ne way or another is what would make no difference
in the nature of any offence whereby any party may be ex-
posed, on the occasion of any such ^putitution to sustain
a detriment.

11^ CLASSES OF OFFENCES.

^^'* possession of it should have taken its commence^
ment> was either an event in the production of
which the will of the offender should have been
instrumental, or any other event at large : in the
former case, the offence may be termed wrongful
nonrirwestment of trust: in the latter case, wrongful
interception of trust *. If at the time of the of-
fence whereby you are deprived of it, you were
already in possession of it, the offence may be
stiled wrongful dvoestment of trust. In any of
these cases, the effect of the offence is either to
put somebody dse into the trust, or not : if not,
it is wrongful divestment, wrongful interception,
or wrongful divestment, and nothing more : if it
be, the person put in possession is either the

* In the former case it may be observed, the act is of the
negative kind: in the latter, it will commonly be of the
positive kind.

As to the expression noU'investment of trust, I am sensible
that it is not perfectly consonant to the idiom of the lan-
guage : 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 ;ivith 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 antient law- •
yers, in the construction of their appellatives, have indulged
themselves in much harsher ellipsises 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. *

DIVISION OF OFFENCES-

wrong doer himself^ in which case it may be stiled ^'^^•
usurpation of trust; or some other person, in which
case it may be stiled wrongful investment y or attri-
bution, of trust. If the trust in question is not of
the number of those which ought to subsist, it
depends upon the • manner in which one man de-
prives another of it, whether such deprivation
shall or shall not be an offence, and, accordingly,
whether non-investment, interception, or divest-
ment, shall or shall not be wrongful. But the
putting any body into it must at any rate be an
offence : and this offence may be either usurpation
or wrongful investment, as before.

In the next place, to consider it upon the
jfooting of a burthen. In this point of view, if no
other interest than that of the persons liable to
be invested with it were considered, it is what
ought not, upon the principle of utility, to
subsist : if it ought, it can only be for the sake of
the persons in whose favour it is established. If
then it ought not on any account to subsist,
neither non-investment, interception, nor divest-
ment, can be wrongful with relation to the
persons first-mentioned, whatever they may be
on any qther account, in respect of the manner in
which they happen to be performed : for usurpa-
tion, though not likely to be committed, there is
the same room as before : so likewise is there for
wrongful investment ; which, in as far as the
trust is considered as a burthen, may be stiled

VOL. II.

114 . DIVISION OF OFFENCES.

xvl' ^^^^gf^l' imposition of trust. If the trusty hdng
still of the burthensome kind^ is of the number of
those which ought to subsist^ any offence that can
be committed^ with relation to the existence of it,
must consist either in causing a person to be in
* possession of it, who ought not to be, or in causing
a person not to be in possession of it who ought to
be : in the former case, it must be dther usurp-
ation or wrongful divestment, as before : in the
l^ter case, the person who is caused to be not in
possession, is either the wrong doer himself, or
some other : if the wrong doer himself, either at
the time of the offence he was in possession of it,
or he was not: if he was, it may be termed
wrongful abdication of trust ; if not, wrmgful de-
trectation* or nqn-assumption : if the person, whom
the offence causes not to be in the trust, is any
other person, the oflfence must be either wrongful
divestment, wrongful non-investment, or wrongftil
interception, as before : in any of which causes,
to consider the trust in the light of a burthen,
it might also be stiled wrongful ea^emption from
trust.

Lastly, with regard to the prejudice whidk the
persons for whose benefit the trust is instituted,

* [Detrectation.] 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 detrectarej
to endeavour to avoid serving in the army, is a phrase not
unfrequently met with in the Roman writers.

DIVISION OF OFFENCES. 115

fnt any other persons whose interests may come
(to be affected by its existing or not existing in
Bttdb or such haiiids, are liable to sustain. Upon
€Xamina^on it will appear, that by every sort of
offence whereby the persons who are or should
be in possession of it are liable, in that respect,
to sustain a prejudice, the persons now in ques-
tion are also liable to sustain a prejudice. The
prejudice, in this case, is evidently of a very
different nature from what it was of in the other :
but the same general names will be applicable in
diis case as in that. If the benej&ciaries, or per-
sons whose interests are at stake upon the exer-
cise of the trust, or any of them, are liable to
sustain a prejudice, resulting from the quality of
the person by whom it may be filled, such preju-
dice must result from the one or the other of two
causes : 1. From a person's having the possession
of it who ought not to have it : or 2. Fjrom a
person's not having it who ought : whether it be
a benefit or burthen to the possessor, is a circum-
stance ihat to this purpose makes no difference.
In the first of these cases the oflfences from which
the prejudice takes its rise are those of usurpa-
tion of trust, wrongful attribution of trust, and
wrongful imposition of trust : in the latter, wrong-
ful non-investment of trust, wrongful interception
of trust, wrongftd divestment of trust, wrongful
abdication of trust, and wrongful detrectation of
trust.

116 DIVISION OF OFFENCES.

So much for the offences which concern the
existence or possession of a trust: those which
concern the exercise of the functions that belong
to it may be thus conceived. You are in posses^
sion of a trust : the time then for your acting in it
must; on any given occasion, (neglecting, for
simplicity's sake, the then present instaiit) be
either past or yet to come. If past, your conduct
on that occasion must have been either conforma-
ble to the purposes for which the trust was insti-
tuted, or unconformable: if conformable, there
has been no mischief in case : if unconformable,
the fault has been either in yourself alone, or in
some other person, or in both : in as far as it has
lain in yourself, it has consisted either in your mt
doing something which you ought to do, in which
case it may be stiled negative breach of trust ; or
in your doing something which you ought not to
do : if in the doing something which you ought
not to do, the party to whom the prejudice has
accrued is either the same for whose benefit the
trust was instituted, or some other party at large : in
the former of these cases, the offence may be stiled
positive breach of trust ; in the other abuse of trust*.

* 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 her« meant by breach of trust, and what is here
meant by abuse of trust, is not very steadily observed in com-
mon speech : and in regard to public trusts, it will even in

DIVISION OF OFFENCES. 1 IT

In as far as the fault lies in another person, the C"^'*

, f . XVL

offence on his part may be stiled disturbance of
trust. Supposing the time for your acting in the
trust to be yet to come, the effect of any act which
tends to render your conduct unconformable to
the purposes of the trust, may be either to render
it actually and eventually unconformable, or to
produce a chance of its being so. In the former
of these cases, it can do no otherwise than take
one or other of the shapes that have just been men-
tioned. In the latter case, the blame must lie
either in yourself alone, or in some other person,
or in both together, as before. If in another per-
son, the acts whereby he may tend to render your
conduct unconformable, must be exercised either
on yourself, or on other objects at large. If ex-
ercised on yourself, the influence they possess must

— ^— ^i^^—^ ■»■■■»»» ■■■ II ■^■■■■. ^.M^l ■■■ ■■■ ■■■ ■■! I ■■■■■ I , ,

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 dif-
ferent. 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 fa-
vour 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 pre-
judice can ensue to them.

118 DIVISION OF OFFENCES.

c»AF. either be such as operates immediately on your
'''''• body, or such as operates immediately on yonr
mind. In the latter case, agam, the tendency of
them must be to deprive you either of the know-
ledge, or of the power, or of the inclination*,
which would be necessary to yout maintdnihg
such a conduct as shall be conformable to the
purposes in question. If they be such, of which
the tendency is to deprive you of the inclination in
question, it must be by applying to your will the
force of some seducing motive f. Lastly, This mo-
tive' must be either of the coercive, or of the
alluring kind ; in other words, it must present
itself either in the shape of a mischief or of an
advantage. Now in none of all the cases that
. have been mentioned, except the last, does the
offence receive any new denomination ; according
to the event it is either a disturbance of trust, or
an abortive attempt to be guilty of l!hat ofifence*
In this last it is termed bribery ; and it is that
particular species of it which may be termed active
bribery, or bribe-giving. In this case, to consider
the matter on your part, either you accept of the
bribe, or you do not : if not, and you do not after-
wards commit, or go about to' commit, either a
breach or an abuse of trust, there is no offence, on
your part, in the case : if you do accept it, whether

* See iniVa; and ch. xviii. [Indirect Legislation.]
t See ch. xi. [Dispositions] xxix.^

DIVISION OF OFFENCES, H^

you eventually do or do not commit the breach or Chap.
the abtoe which it is the bribe-givers intention you
should eomsnit^ you at any rate commit ah offence
which is also termed bribery : and which, foi* dis-
tinction sake may be termed passive bribery, or
brtbe-taking*. As to any farther distinctions,
they will depend upon the nature of the par-
ticular sort of trust in question, and therefore
belotig not to the present place. And thus we
have thirteen sub-divisions of offences against
tirust: viz. !• Wrongful non4nvestment of trust
S. Wrorigfdl interception of trust. ,3. Wrongful
divestment of trust. 4. Usurpation of. trust*

5. Wrongful investment or attribution of trust*

6. Wrongful abdication of trust. 7* Wrongful
detrectation of trust. 8. Wrongfiil imposition of
trust. 9. Negative breach of trust. ] 0. Posi-
tive breach of trust. 1 1 . Abuse of trust. 1 2. Dis-
turbance of trust. 13. Bribery.

■e •

^^^^^^^— -■■■■■■ 11 M^^^. ■■■.■■■ »■-■■■■■ ■ ■ ■ ■■— ■■■■ iiiM mm -i-^. I ■ ■ ■■ ■ ^. ■ MM ■ ^

* 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, and B. 1. tit. [Ac-
cessory 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 particular share of
attention, and to present itself to view in company with other
offences agamst trust, it would have seemed an omission not
to have included it in that catalogue.

itr.

1^ DIVISION OF OFFENCES.

XXVIII.

From what has been said^ it appears that there
in trustees cannot be any other offences^ on the part of a

dismissed to,. •, i*i i/** •

Class s. trustee, by which a beneficiary can receive on any
particular occasion any assignable specific preju-
dice. One sort of acts, however, there are by
which a trustee may be put in some danger of re-
ceiving a prejudice, although neither the nature
of the prejudice, nor the occasion on which he is
in danger of receiving it, should be assignable.
These can be no other than such acts, whatever
they may be, as dispose the trustee to be acted
upon by a given bribe with greater effect than any
with which he could otherwise be acted upon : or
in other words, which place him in such circum-
stances as have a tendency to encrease the quan-
tum of his sensibility to the action of any motive
of the sort in question*. Of these acts, there
seem to be no others, that will admit of a descrip-
tion applicable to all places and times alike, than
acts of prodigality on the part of the trustee. But
in acts of this nature the prejudice to the beneficiary
is contingent only and unliquidated ; while the
prejudice to the trustee himself is certain and
liquidated. If therefore on any occasion it should
be found adviseable to treat it on the footing of an
offence, it will find its place more naturally in the
class of self-regarding ones.

* See ch. vi. [Sensibility] ii.

mmmmamafm^^^^i^^^^'^^^m^imm^^immmm

DIVISION OF OFFENCES. 151

XXIX. Chap.

XVI,

As to the sub-divisions of oflfences against trusty i^hPClT^
these are perfectly analos^ous to those of offences dijiaoM of
by falsehood. The trust may be private, semi-pub- «ga»n»t tniit

are alio de*

lienor public: it may concern property, person, termined by

, , the diviaioiis

reputation, or condition; or any two or more of of the pre-
those articles at a time : as will be more particu* dassel
larly explained in another place. Here too the
offence, in running over the ground occupied by
the three prior classes, will in some instances
change its name, while in others it will not.

XXX.

Lastly, If it be asked. What sort of relation there Connection
subsists between falsehoods on one hand, and fen^rbv '
offences concerning trust on the other hand ; the and'ofiences
answer is, they are altogether disparate. False- "^"""^ *'"'**
hood is a circumstance that may enter into the
Gomposion of any sort of offence, those concerning
trust, as well as any other : in some as an acci-
dental, in others as an essential instrument. Breach
or abuse of trust are circumstances which,, in the
character of accidental concomitants, may enter
into the composition of any other offences (those
against falsehood included) besides those to which
they respectively give name.

19^ DIVMION OF OFFENCES.

Genera of Class I.

xxxl.

Anaiysisinto Returning now to ckss the fii*s€, let us pursue

gencrtt pur* • , .

sued no far- the distribution a step farther^ and branch out the
Class 1. several divisions of that class^ as above exhibited,
into their respective genera, that is, into such mi-
nuter divisions as aire capable of being charac-'
tensed by denominations of which a great part
are already current among the people ^. lA thid
place tfaift analysis must stop. To apply it in the
same regular form to any of the other classes
seeifiB scarcely pi^actieable : to sem^public^ as also
to public offences^ on account of the interference
of local circunttstanoes : to ddf-r^^diiig onei$, on
account of the nece^ity it would c^ate of de-
ciding prematuf^ly upon^p^iitif which' m6y aj^ar
UaMe to controversy : to oiSbnc^ by falsehood,
and offaQces a^^nst trust^^ on account of the de-
pendence there ^ between' &i» claiss and the' three
former. What remains to be db«we in this way,

• fo' tht eoottieratidn of thes6 genera, it fe all along to be
obsetyed, thatoffetkces of an aci^essbry fixture are notmeo'-
tioned ; except unless it be here and there whei^e they haye
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 6. 1, tit.
[Accessory offences.]

mVISlON OP ©PFENCBS: *W

witii refereiMie to these four classes^ will require Chap.
discussion, and will therefore he introduced with ^-*v-==^
more propriety in the hody of the work, than in a
preliminary part, of which the business is only to
drawoutKnes.

XXXII.

An act, by which the happiness of an individual offence*

, against an

is disturbed, is either simple in its eflfects or compkcV. indiyiduai
It may be stiled simple in its effects, when it pie in their
affects him in one only of the articles or points in complex.
which his interest, as we have seen, is liable to be
affected : complex, when it affects him in several
of those points at oiice. Such as are simple in
ther ejects must of course be first considered.

xxxra.
In a simple way, that is in one way at a time, a Offencei
man's happiness is liable to be disturbed either l^!!!!thetf'^
1. By actions referring to his own person itself ; «''^'"-
or 2. By actions referring to such external objects
on which his happiness is more or less dependent*
As to his own person, it is (Composed of two dif-
feteht parts, or reputed parts, his body and hiar
mind. Acts which exert a pernicious influence on
his person, whether it be on the corporeal or on
the mental part of it, will operate thereon either
immediately, and without aflfecting his will, or me-
diately, through the intervention of that faculty :
viz. by means of the influence which they cause his
will to exercise over his body. If with the inter-
vention of his will, it must be by mental coercion :

^^^ DIVISION OF OFFENCES.

that is^ by causing him to mil to maintain, and
thence actually to maintain, a certain conduct
which it is disagreeable, or in any other way per-
nicious, to him to maintain. This conduct may
either be positive or negative * ; when positive, the
coercion is stiled compulsion or constrsint: when
negative, restraint. Now the way in which the
coercion is diagreeable to him, may be by pro-
ducing either pain of body, or only pain of mind.
If pain of body is produced by it, the offence will
come as well under this as under other denomina-
tions, which we shall come to presently. More-
over, the conduct which a man, by means of the
coercion, is forced to maintain, will be determined
either specifically, and originally by the determina-
tion of. the particular acts themselves, which he is
forced to perform or to abstain from, or generally
and incidentally, by means of his being forced to
be or not to be in such or such a place. But if he
is prevented from being in one place, he is con-
fined thereby to another. For the whole surface
of the earth, like , the surface of any greater or
lesser body, may be conceived to be divided into
two, as well as into any other number of parts or
spots. If the spot then, which he is confined to,
be smaller than the spot which he is excluded from,
his condition may be called confinement: if larger.

* Ch. vii. [Actions] viii.

■■

DIVISION OF OFFENCES. 195

banishment*. Whether an act, the effect of which ^^J-
is to exert a pernicious influence on the person of
him who suffers by it, operates with or without
the intervention of an act of his will, the mischief
it produces will either be mortal or not mortal. If
not mortal, it will either be reparable, that is tem-
porary ; or irreparable, that is perpetual. If re-
parable, the mischievous act may be termed a
simple corporal injury ; if irreparable, an irreparable
corporal injury. Lastly, a pain that a man expe-
riences^ in his mind will either be a pain of actual
sufferance, or a pain of apprehension. If a pain of
apprehension, either the offender himself is repre^
sented as intending to bear a part in the produc-
tion of it, or he is not. In the former case the
offence may be ^tWeA menacement : in the latter
ease, as also where tiie pain is a pain of actual
sufferance, a simple mental injury. And thus we
have nine genera or kinds of personal injuries ;
which, when ranged in the order most commo-
dious for examination, will stand as follows ; viz.
1. Simple corporal injuries. 2. Irreparable cor-
poral injuries. 3. Simple injurious restrainment.

* 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 temdnii legis. To give parti-
cular references to these difinitions, would be incumbering the
page to little purpose.

•V

IW mVISlOH OF OFFENCES.

CwAP. 4. Simple injuriotts compulsion*. 5. Wrongful con-
finement 6. Wrongful banishment. 7. Wrong-
ful homicide^ 8. Wrongful menacementf . 9. Sim*
pie mental injuries X* .

* Injurious restrainmeut at large, and injurious compulsion
at large, are here stiled 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 actof simple injurious restrain-
iuent, or simple injurious compulsion, it is sufficient if the in-
fluence 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 ex-
erted be the part to which it is pernicious : it is not even ne-
cessary that it should immediately be pernicious to either of
these parts, though to one or other of them it must be perni-
cious in the lo^g^nin, if it be pernicious at HI. An act in
whicji the body, for example, is concerned^ may be very disar
greeable^ 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.

t It may be observed, that wrongful menacement is in-
cluded as well in simple injurious restrainment, and simple
injurious compulsion, except in the rare case where the mo-
tives 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.

t Altiiough, for reasons that have been already given,
(supra xxxi.) no complete catalogue, nor therefore any ex-

^mmmmmmmm'immmmmm^f^mmmKmmmmm^m'^^^'mm^m^^mm^^^mmmmmmm

DIVISION OP OFFENCfiS. >27

XXXIV. ^yl*

We come now to. offences against reputation offences

against
— ■ ■ ' — repatation.

haustive view, of either semi-public or self-regarding of-
fences, 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 corres-
pond. Concerning the two latter, however, and the last more
particularly, it must be understood that all i mean by insert-
ing 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 com-
bating 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-re-
gaarding 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 t^ey should not, they
are however specified in the body of the work. They would
ti^e up too much room were they to be inserted here.

I. '^EMi-FUBLic OFFENCES through Calamity. Calamities,
by which the persons or properties of men, or both, are lia-
ble to be affected, seem to be as follows : 1. Pestilence or
contagion. 2.. Famine, and other kinds of scarcity. 3. Mis-
chiefs producible by persons deficient in point of under- .
standing, 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.

2^8 DIVISION OF OFFENCES.

Chap, merely. These require but few distinctions. In
^■^v — ' point of reputation there is but one way of sufFer-

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 cor-
poral injuries : in other words, they may be made to suffer in
point of health, by offensive or dangerous trades or manufac-
tures : by selling, or falsely puffing off unwholesome medicines
or provisions : by poisoning or drying up of springs, destroy-
ing of aqueducts, destroying woods, walls, or other fences
against wind and rain : by any kinds of artificial scarcity ; or hj
any other calamities intentionally produced. 3 and 3. Simple
injurious restrainnient, 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, ac-
clamations, outcries, invectives, subscriptions, undertakings,
processions, or any other mode of expressing joy or grief,
displeasure or approbation ; or, in shorty in any other course
of conduct whatsoever. 4. and 5. Confinement and banish-
ment : by the spoiling of roads, bridges, or ferry-boats : by
destroying or unwarrantably pre-occupying public carriaees,
or houses of accommodation. 6. By menacement : as by in-
cendiary letters, and tumultuous assemblies : by newspapers
or hands-bills, denouncing vengeance against persons of

II - ii m 'WF'mmmmmmmm^m^m^^^^^mmmmmm^mmwmmmmmmmmmmmmm

DIVISION OP OFFENCES. ^39

ing, which is hy losing a portion of the good-will ^"*'-

A. V M

of others. Now, in respect of the good-will
which others bear you, you may be a loser . in
either of two ways : 1. By the manner in which
you are thought to behave yourself; and g. By
the manner in which others behave, or are thought
to behave, towards you. To cause people to
think that you yourself have so behaved, as to
have been guilty of any of those acts which cause
a man to possess less than he did before of the
good-will of the community, is what may be stiled
defamation. But such is the constitution of
human nature, and such the force of prejudice,
that a man merely by manifesting his own want
of good-will towards you, though ever so unjust
in itself, and ever so unlawfuUy expressed, may
in a manner force others to withdraw from you a

particular denominations : for example, against Jews , Catho-
lics, Protestants, Scotchmen, Gascons, Catalonians, Sec.
7. Simple mental injuries : as by distressful, terrifying, ob-
scene, or irreligious exhibitions ; such as exposure of sores
by beggars, exposure of dead bodies, exhibitions or reports
of counterfeit witchcrafts or apparitions, exhibition of ob-
scene or blasphemous prints : obscene or blasphemous dis-
courses 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. Glut-
tony, drunkenness, excessive venery, and other species of
intemperance. S. Suicide.

VOL. II. K

ISO DIVISION OF OFFENCES.

part of theirs. When he does this by words, or
by such actions as have no other e£Pect than in as
far as they stand in the place of words, the
oflPence may be stiled vilification. When it is
done by such actions as, besides their having this
effect, are injuries to the person, the offence may
be stiled a personal insult : if it has got the length
of reaching the hoAy y b. corporal ihsult : if it stopt
short before it reached that length, it may be
stiled insulting menacement. ' And thus we have
two genera ox kinds of offences against reputation
merely ; to wit, I. Defamation : and, 2. ViKfica-
tion, or Revileriient*. As t6 Corporal insults,
and insulting menacement, they bejong to the
compound title of offences against person and
reputation both together.

XXXV. •

Offences If the property of one man suffers by the de-
prt)pertj. linquency of another, such property either was in
trust with the offender, or it was not : if it was
in trust, the offence is a breach of trust, and of
whatever nature it may be in other respects, may
be stiled dissipation in breach of trusty or dissipation
of property in trust. This is a particular case ; the

* I. Semi- PUB Lie offences. 1. Calumniation and vili-
fication of particular denominations of persons; such as
Jews, Catholics, &c.

II. Self-regarding offences, t* Incontinence in
females. 2. Incest.

DIVISION OP OFFENCES. 131 '

opposite one is the more common : in such case c.- |

the several ways in which property may, by possi- ^-^r-^ .

bihty, become the object of an offence, may be '

thus conceived. . Offences against property, of ^

whatever kind it be^ may be distinguished, as hath

been ahready intimated *, into such as concern the

legal possession of it, or right to it, and such as

concern only the enjoyment of it, or, what is the

same thmg, the exercise of that right. Under

the former of these heads come, as hath been

already intimated f , the several offences of wrong-^

ful non-irwestmenty wrongful intercepttony wrongful

divesiment, usurpation, and wrongful attribution.

When in the commission of any of these offences

a fabehood has served as an instrument, and that,

as it is commonly called, a wilful, or as it might

more properly be termed, an adoisedX one, the

epithet fraudulent may be prefixed to the name of

the offence, or substituted in the room of the

word wrongful. The circumstance of fraudulency

then may serve to characterise a particular ;

species, comprisable under each of those generic

heads : in like manner the circumstance of force,

of which more a little farther on, may serve to

characterise another. With respect to wrongful

interception in particular, the inoestitvoe event by

which the title to the thing in question should

have accrued to you, and for want of which such

* Supra xxvii. -f Ih. t Sec ch. ix. [Consciousness] ii.

r *
t

■

189 DIVISION OF OFFENCES.

Chap, title is, through the delinquency of the offender,
'— V — ' as it were, intercepted, is either an act of his own,
expressing it as his will, that you should be con-
sidered by the law as the person who is legally
in possession of it, or it is any other event at\
large : in the former case, if the thing, of which
you should have been put into possession, is a
sum of money to a certain amount, the offence is
that which has received the name of insotoency;,
which branch of delinquency, in consideratioii of
the importance and extent of it, may be treated
on the footing of a distinct genus of itself*.

Payment, ♦ The light in which the offence of insolvency is here ex-
hibitedy may perhaps at first consideration be apt to appear

not only novel but improper. It may naturally enough ap-
pear^ that when a man owes you a sum of money, for in-
stance, the right to the money is your's 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 inves-
titive 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 ^o the thing said to be pau2, 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 oil a table at which you are sitting. If then by
words, or gestures, or any means whatever, addressing him-
self 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

1" ^ ■■ ■ "" ' ' II I ^ '^^^^^^mi^mmm^mmmmmmtmmtmmmmmKm

DITISION OF OFFENCES. 1S3

Next, with regard to such of the offences ^*a'«
against property as concern only the enjoyment

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 ex-
ercise in your favour an act of investitive power with relation
to some such article.

True it is, that in certain c^ses 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 transfer-
ring 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 opera-
tion of payment properly consists, are plainly acts of a dis-
tinct nature * nor are they essential to the operation : by
themselves they do not constitute it, and it may be performed
without them. . It mutt be performed without them wherever '

134 DIVISION OF OFFENCES.

Cha*. of the object in question. This object must be
either a service, or set of services*, which i^hould
have been rendered by some person, or else an
article belonging to the class of things. In the
former case, the offence. may be stiled wrongful
withholding of services f. In the latter case it may
admit of farther modifications, which may be thus
conceived : When any object which you have had
the physical occupation or enjoyment of, ceases, in
any degree, in consequence of the act of another
man, and without any change made in so much

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.

* Supra xxvi.

t Under wrongful withholding of services is included breach
of contract : the obligation to render services may be ground-
ed 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 receiv-
ing 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 coin-
cide with any of the other offences, for which seperate deno-
minations have been provided*

mmmmmimm'mmmmmmmmimBi

mmmmf

DIVISION OF OFFENCES. - 135

of that power as depends upon the intrinsic phy- Cha
sical condition of your person^ to be subject to
that power; this cessation is either owing to
change in the intrinsic condition of the thing itself^
or in its exterior situation with respect to you,
that is, to its being situated out of your reach. In
the former case, the nature of the change is either
such as to put it out of your power to make any use
of it at all, in which case the thing is said to be
de^^troyed, and the oflfence whereby it is so treated
may be termed wrongful destruction : or such only
as to render the uses it is capable of being put to of
less valine than before, in which case it is said to be
damaged, or to have sustained damage, and the
offence may be termed wrongful endamagement.
Moreover, in as far as the value which a thing is
of to you is considered as being liable to be in
some degree impaired, by any act on the part of
any other person exercised upon that thing, aL
though on a given occasion no perceptible damage
should ensue, the exercise of any such act is com-
monly treated on the footing of an offence, which
may be termed wrongful using or occupation.

If the cause of the thing's failing in its capa-
city of being of use to you, lies in the exterior
situation of it with relation to you, the offence
may be stiled wrongful detainment*. Wrongful

* In the English law, detinue and detainer : detinue ap-
plied chiefly to moveables ; detainer, to immoveables. Under

136

DIVISION OP OFFENCES.

^^»* detainment^ or detention^ during any given period
of time, may either be accompanied with the in-
tention of detaining the thing for ever, (that is
for an indiiFerent time) or not : if it be, and if it
be accompanied at the same time with the inten-
tion of not being amenable to law for what is done,
it seems to answer to the idea commonly annexed
to the word embezzlement, an offence which is
commonly accompanied with breach of trust*.
In the case of wrongful occupation, the physical
faculty of occupying may have been obtained with

detinue and detainer cases are also comprised, in which the
offence consists in forbearing to transfer the legal possession
of the thing • such cases may be considered as coming under
the head of wrongful non-investment. The ^distinction be-
tween 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 in-
stances 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.

* In attempting to exhibit the import belonging to this
and other names of offences in common use, I must be un-
derstood to speak all along with the utmost diffidence. The
truth is, the import given to them is commonly neither de-
terminate nor uniform : so that in the nature of Jhings, no
definition that can be given of them by a private person can
be altogether an exact one. To fix the sense of them be-
longs only to the legislator.

^^^^w

DIVISION OF OFFENCES. , 1ST

or without the assistance or consent of the pro- Chap.

XVL

prieitor, or other person appearing to have a right
to afford such assistance or consent. If without
such assistance or consent, and the occupation
be accompanied with the intention of detaining
the thing for ever, together with the intention
of not being amenable to law for what is done,
the offence seems to answer to the idea com-
monly annexed to the word theft or stealing. If
in the same circumstances a force is put upon
the body of any person who uses, or appears to
be disposed to use, any endeavours to prevent the
act, this seems to be one of the cases in which the
offence is generally understood to come under the
name of robbery.

If the physical faculty in question was obtained
with the assistance or consent of a proprietor, or
other person above spoken of, and still the occu-
pation of the thing is an offence, it may have been
either because the assistance or consent was not
fairly, or because it was not freely obtained. If
not fairly obtained, it was obtained by falsehood,
which, if advised, is in such a case termed fraud :
and the offence, if accompanied with the intention
of not being amenable to law, may be termed
fraudulent obtainment or defraudment*. If not

* ,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 an-

138 DITISIOZf QF QFrJSNCBS.

Chaf. freeb) obtained^ it was obtained by fcrct : to wit,
either by a force put upon the body, which has
been abready mentioned, or by a force put upon
the mind. If by a force put upon the mind, or
in other words, by the apt>Ucation of coercive
.motives ♦, it must be by producing the apprehen»-
sion of some evil : which evil, if the act is an
offence, must be some evil to which on the occasion
in question the one person has no right to expose
the other. This is one case, in which, if the of-
fence be accompanied with the intention of detain-
ing the thing fpr ever, whether it be or be not
accompanied with the intention of not being
amenable to law, it seems to agree with the idea of
what is commonly meant by extortion* Now the
paxt a maQ takes in exposing another to the evil in
question, must be either a positive or a negative
part. In the former case, again, the evil muist
either be present or distant. In the case then
where the assistance pr consent k obt^ed by a
force put upon the body, or where, if by a fojrce
put upon the mind^ the part taken in the exposing
a man to the apprehension of the evil is positive,
the ^vil present, and the object of it his person,
and if at any rate the extortion, thus applied, be
accompanied .wijththe intention of not being amen-

other, mentioned aboye, upon the distinction between legal
possession and physical. The same observation may be ap-
plied to the case of extortion hereafter following.
* Vide supra. Scxvii.

mmmtmmmmi^

PmSIOM OF OFFENCES.

able to law> it seems to agree with the remaining
case of what goes under the name of robbery.

As to dissipation' in breach of trusty this, when
productive of a pecuniary profit to the trustee,
seems to be one species of what is commonly
meant by peculation. Another, and the only re-
maining one, seems to consist in acts of occupation
exercised by the trustee upon the things which
are the objects of the fiduciary property, for his
own benefit, and to the damage of the beneficiary.
As to robbery, this ofience, by the manner in
which the assistance or consent is obtained, be-
comes an offence against- property and person at
the same time. Dissipation in breach of trust,
and peculation, may perhaps be more commo-
diously treated of under the head of offences
against trust ♦• After these exceptions, we have
thirteen genera or principal kinds of offences
against property, which, when ranged in the order
most commodious for examination, may stand as
follows, viz. 1. Wrongful non-investment of pro*
perty. 2. Wrongful interception of property. S.
Wrongful divestment of property. 4. Usurpation

139

* Usury/ whicfay if it must be an offence, is an offence
committed with consent, that is, with the consent of the
party supposed to be injured, cannot merit a place in the
catalogue of offences, unless the consent were either unfairly
obtained or unireely * in the first case, it coincides with de-
firaudment ; in the other, with extortion.

140 DIVISION OF OFFBNCES.

Chaf. of property. 5. Wrongful investment of property.

"^ V * 6. Wrongful withholding of services. • 7- Wrong-
ful destruction or endamagement. 8. Wrongful
occupation. 9- Wrongful detainment. 10. Em-
bezzlement. 11. Theft. 12. Defraudinent. 13.
Extortion ♦.

We proceed now to consider offences which are
complex in their effects. Regularly, indeed, we
should come to offences against condition ; but it
will be more convenient to speak first of offences
by which a man's interest is affected in two of the
preceeding points at once.

XXXVI.

Offences First then, with regard to offences which affect
son and re- pcrsou and rcputatiou together. When any man,
**" ' by a mode of treatment which affects the person.

* L Semi-public offences. 1. Wrongful divestmenty
interception, usurpation, &c. of valuables, which are the pro-
perty of a corporate body ; or which are in the indiscriminate
occupation of a neighbourhood ; such as parish churches,
altars, relicks, and other articles appropriated to the pur-
poses of religion : or things which are in the indiscrimi-
nate occupation of the public at large ; such as mile-stones,
market-houses, exchanges, public gardens, and cathedrals.
S. Setting on foot what have been called bubbles, or fraudu-
lent partnership, or gaming adventures ; propagating false
news, to raise, or sink the value of stocks, or of any other
denomination of property.

II. SELF-REOARDiiro OFFENCES. 1. Idleness. .2. Ga-
ming. 3. Other species of prodigality.

mmmm^mmmmimi^^'Wf'^'^^^''^

DIVISION OF OFFENCES. 1^1

injurei^ the reputation of another, his end and Chaf.

JL V la

purpose must have been either his own immediate
pleasure, or that sort pf reflected pleasure, which
in certain circumstances may be reaped from the
suffering of another. Now the only immediate
pleasure worth regarding, which any one can reap
from the person 6f another, and which at the same
time is capable of affecting the reputation of the
latter, is the pleasure of the sexual appetite ♦.
This pleasure, then, if reaped at all,, must have
been reaped either against the consent of the
party, or with consent. If with consent, the con-
sent must have been obtained either freely and
fairly both, or freely but not fairly, or else not
even freely ; in« which case the fairness is out of
the question. If the consent be altogether want^
ing, the offence is called rape : if not fairly ob-
tained, seduction simply : if not freely, it may be
called forcible seduction. In any case, either the
offence has gone the length of consummation, or
has stopt short of that period ; if it has gone that,
length, it takes one or other of the names just
mentioned : if not, it may be included alike in all
cases under the denomination of asimpk lascivibus
injury. Lastly, to take the case where a man in-
juring you in your reputation, by proceedings that
regard your person, does it for the sake of that

* See ch. \, [Pleasures and Pains.]

149 DIVISION OF OFFENCES.

^vt ^^^ of pleasure which will sometimes result from
-^ the contemplation of another^s pain. Under these
circumstances either the offence has actually gone
the length of a corporal injury, or it has rested in
. menacement : in the first case it may be stiled a
corporal insiiU ; in the other, it may come under
the name of insulting menacement. And thus we
have six genera, or kinds of offences, against
person and reputation together; which, when
ranged in the order most commodious for consi-
deration, will stand thus : 1. Corporal insults. 2.
Insulting menacement. 3. Seduction. ^ 4. Rape.
5. Forcible seduction. 6. Simple lascivious in-
juries ♦.

XXXVII.

ofiences Sccoudly^ with respect to those which affect
aoD and persou and property together. That a force put

properlj. i #• it

upon the person of a man may be among the
means by which the title to property may be un-

1 J f

lawfully taken away or acquired, has been already
stated f . A force of this sort then is a circum-
stance which may accompany the offences of
wrongful interception, wrongftJ divestment, usur-
jpation, and wrongful investment. But in these
cases the intervention of this circumstance does

• I. Semi-public offences — ^none.
II. SsLF-REOABDiNo OFFENCES. 1. Sacrifice of.yir^-
nity. 2. Indeceneies not public.
t Supra, •

Tmmmm

DIVISION OF OFFENCES. 143

not happen to have given any liew denomination Cm^r.
to the offence ♦• In all or any of these cases^
however, by prefixing the epithet ybrciA/e,.vp^e. may
have so many names of offences, which may either
be considered as constituting so many species of
the genera belonging to the division of offences
against property, or as so many genera belonging
to the division now before us. Among the offen-
ces that concern the enjoyment of the thing, the
case is the same with wrongful destruction and
wrongful endamagement ; as also with wrongful
occupation and wrongful detainment. As to the
offence of wrongful occupation, it is only in
the case where the thing occupied belongs to the
class of immoveables, that, when accompanied by
the kind of force in question, haa obtained a par-
ticular name which is in common use: in this
case it is called/orciife tntry: fdr<;ible detainment,
as applied also to immoveables, but only to im-
moveables, has obtained, among lawyers at least,
the name of forcible detainer f . And thus we may

.Urn

* In the technical language of the English law, property
so acqaired is said to be acquired by duress.

f Applied to moveables, the circumstai^ce of force has
neyer, at least by the technical part of the language, been
taken into account : no such coQibiiiation 6f terms as forcible
occupation is m current use. The word detinue is applied to
moTcables only : and (in the language 6t the Idw) the word
forcible has never been combined with it. The word applied

144 DIVISION OF OFFENCES.

xvL distinguish 10 genera, or kinds of offences, against
. " person and property together, which, omitting for
conciseness sake the epithet wrongful, will stand
thus: 1. Forcible interception of property. 2.
Forcible divestment of property. 3. Forcible
usurpation. 4. Forcible investment. 5. Forcible
destruction or endamagement. 6. Forcible occu-
pation of moveables. 7. Forcible entry. 8. For-
cible detainment of moveables. 9- Forcible de-
tainment of immoveables. 1 0. Robbery ♦. ^

XXXVIII.

Offences We comc uow to offcuccs against condition. A
d§^!^ man's condition or station in life is constituted by
domestic or the legal relation he bears to the persons who are
about him ; that is, as we have already had occar
sion to shewf , by duties, which, by being imposed
on one side, give birth to r^hts or powers on the
other. These relations, it is evident, may be
almost infinitely diversified. Some means, how-
ever, may be found of circumscribing the field

to immoveables 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.

* I. Semi-public offencis. 1. Incendiarism. 9. Cri-
minal inundation.

II. Sblf-reoardino offences— none.

t Supra. XXV. note. .

m^^mtmmmummmmmmmmmfmmf^^^'mmmm^^^^^^^mmmmm^Hm

DIVISION OF OFFENCES. 145

within which the varieties of them are displayed. Chap.

XVI.

In the first place, they must either be such as are '^ — v-^
capable of displaying themselves within the circle
of a private family, or such as require a larger
space. The conditions constituted by the former
sort of relations may be stiled domestic: those
constituted by the latter, civil.

XXXIX.

As to domestic conditions, the legal relations by Domestic
which they are constituted may be distinguished grounded'on
into 1 . Such as are superadded to relations purely utioMhi^.
natural : and 2. Such as, without any such na-
tural basis, subsist purely by institution. By re-
lations purely natural, I mean those which may
be said to subsist between certain persons in virtue
of the concern which they themselves, or cer-
tain other persons, have had in the process which-
is necessary to the continuance of the species.
These relations may be distinguished, in the first
place, into contiguous and uncontiguous. The
uncontiguous subsist through the intervention of
such as are contiguous. The contiguous may be
distinguished, in the first jplace, into connubial, and
post-connubial*. Those which may be termed

* By the terms connubial and poat-connubialf all I mean at
present to bring to view is, the mere physical union, apart
from the ceremonies and legal engagements that will after-
wards be considered as accompanying it.

VOL. II. h

146 DIVISION OF OFFENCES.

Chap, coiinubial are two : 1. That which the male bears
towards the female : 2. That which the female
bears to the male*. The post-connubial are
either productive or dervoative. The productive is
that which the male and female above-mentioned
bear each of them towards the children who are

Belatbns— * The vague and undetermined nature of the fictitious
fiwn'every ^^^ity^ called a relation, is, on accasions like the present, apt
two objects, to be productive of a good deal of confusion. A relation is
either said to be home 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 re-
sulting 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 ne^
cessary on two accounts : 1. Because for the relations them-
selves 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.

^mt^mmmtammimmK^mmmmmmmii^^mm^^^^

DIVISIpN OF OFFENCES. ^^^

the immediate fruit of their union ; this is termed
the relation of parentality. Now as the parents
must be, so the children may be, of different sexes^
Accordingly the relation of parentality may be
distinguished into four species: 1. That which
a father bears to his son 2 this is termed paternity.
2. That which a father bears to his daughter:
this also is termed paternity. 3. That which
a mother bears to her son : this is called maternity.
4i. That which a mother bears to her daughter :
this also is termed maternity. Uncontiguous
natural relations may be distinguished into imme"
diate and remote. Such as are . immediate, are what
one person bears to another in consequence of
their bearing each of them one simple relation to
some third person. Thus the paternal grand-
father is related to the paternal grandson by
means of the two different relations, of different
kinds, which together they bear to thp father : the
brother on the father's side, to the brother by
means of the two relations of the same kind,
which together they bear to the father. In the
same manner we might proceed to find places in
the system for the infinitely-diversified relations
which result from the combinations that may be
formed by mixing together the several sorts of re-
lationships by ascent, relationships by decent, col-
lateral relationships, and relationships by affinity :
which latter, when the union between the two
parties through whom the afiinity takes place is

148 DIVISION OF OFFENCES.

Chap, sanctioned by matrimonial solemnities, are termed

A, V l»

relationships by mariiage. But this, as it would
be a most intricate and tedious task, so happily is
it, for the present purpose, an unnecessary one.
The only natural relations to which it will be
necessary to pay any particular attention, are
those which, when sanctioned bylaw, give birth to
the conditions of husband and wife, the two re-
lations comprized under the head of parentality,
and the corresponding relations comprized under
the head filiality or filiation.

What then are the relations of a legal kind
which can be superinduced upon the above-men-
tioned natural relations ? They must be such as it
is the nature of law to give birth to and establish.
But the relations which subsist purely by institu-
tion exhaust, as we shall see, the whole stock of re-
lationships which it is in the nature of the law to
give birth to. and establish. The relations then
which can be superinduced upon those which are
purely natural, cannot be in themselves any other
than what are of the number of those which
subsist purely by institution : so that all the
difference there can be between a legal relation of
the one sort, and a legal relation of the other sort,
is, that in the former case the circumstance which
gave birth to the natural relation serves as a mark
to indicate where the legal relation is to fix : in the
latter case, the place where the legal relation is to
attach is determined not by that circumstance but.

W^'f^tmmmm

DIVISION OF, OFFENCES. *49

by some other. Froiri these considerations it will
appear manifestly enough, that for treating of the
several ' sorts of conditions, as well natural as
purely conventional, in the most commodious
order, it will be necessary to give the precedence
to the latter. Proceeding throughout upon the
same principle, we shall all along give the priority,
not to those which are first, by nature, but to
those which are most simple in point of description.
There is no other way of avoiding perpetual an-
ticipations and repetitions.

XL.

We come now to consider the domestic or DoraesUc
family relations, which are purely of legal insti- which are
tution. It is to these in effect, that both kinds feg'ai mttUu-
of domestic conditions, considered as the work of *°°'
law, are indebted for their origin. When the law>
no matter for what purpose, takes upon itself to
operate, in a matter in which it has not operated
before, it can only be by imposing obligation*.
Now when a legal obligation is imposed on any
man, there are but two ways in which it can in the
first instance be enforced. The one is by-giving
the power of enforcing it to the party in whose
favour it is imposed : the other is by reserving that
power to certain third persons, who, in virtue of
their possessing it, are stiled ministers of justice.
In the first case, the party favoured is said to

See ch. xvii. [Limits] § iii.

150

DIVISION OF OFFENCES.

^vf' possess not only a right as against the party
obliged, but also a power over him : in the second
case, a right only, uncorroborated by power. In
the first case, the party favoured may be stiled a
superior^ and as they are both members of the
same fan^ily, a domestic superior, with reference to
the party obliged : who, in the same case, may be
stiled a domestic inferior, with reference t» the
party favoured. Now in point of possibility, it is
evident, that domestic conditions, or a kind of ficti-
tious possession analogous to domestic conditions,
might have been looked upon as constituted, as
well by rights alone, without powers on either
side, as by powers. But in point of utility* it

* Two persons, who by any means stand engaged to live
together, can never live together long, but on^ 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
porsons 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

V'iV

DIVISION OF OFFENCES.

151

does not seem expedient : and in point of fact, pro- ^^J[-

hably owing to the invariable perception which

' ■ II ■ ■ I . ' —

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 nakM 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 forgiving ^he 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 pos-
session of the physical ? in this way, few transgressions, and
few calls for punishment : in the other way, perpetual trans-
gressions, and perpetual calls for punishment. Solon is said
to have transferred the same idea to the distribution Qf state

1&2 DIVISION OF OFFENCES.

^*'* men must have had of the inexpediency, no such
conditions seem ever to have been constituted
by such feeble bands. Of the legal relationships
then, which are capable of being made to subsist
within the circle of a family, there remain those
only in which the obligation is enforced by power.
Now then, wherever any such power is conferred,
the end or purpose for which it was conferred
(unless the legislator can be supposed to act
without a motive) must have been the producing
of a benefit to somebody : in other words, it must
have been conferred for the sake of somebody. The
person then, for whose sake it is conferred, must
either be one of the two parties just mentioned,
or a third party : if one of these two, it must be
either the superior or the inferior. If the superior,
such superior is commonly called a master ; and
the inferior is termed his servant : and the power
may be termed a beneficial one. If it be for the
sake of the inferior that the power is established,

powers. Here thea was generalization : here was the work
of genius. But in the disposal of domestic power, every
legislator, without any cflfcrt of genius, has been a Solon. So
much for reason*: add to which, in point of7notivesf, 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 poblic : love of reputation, &c.

t Self-regardiog motives : or social motives, which are social in a le^
extent : sympathy for persons of a particular description : persons of the
same sex.

^mf^m^mmmf^^mmmmmmmmmmmmmmmmmimmmmmmmfmm

DIVISION OF OFFENCES. 153

the superior is termed a guardian ; and the inferior Ch ap.

A, V ^»

his ward: and the power, being thereby coupled
with a trust, may be termed a fiduciary one. If
for the sake of a third party, the superior may be
termed a superintendant ; and the inferior his
subordinate. This third party will either be an
assignable individual or set of individuals, or a set
of unassignable individuals. In this latter case
the trust is either a public or a semi-public one :
and the condition which it constitutes is not of the
domestic, but of the civil kind. In the former
case, this third party or principal, as he may
be termed, either has a beneficial power over the
superintendant, or he has not : if he has, the su-
perintendant is his servant, and consequently so
also is the subordinate : if not, the superintendant
is the master of the subordinate ; and all the
advantage which the principal has over his super-
intendant, is that of possessing a set of rights,
uncorroborated by power ; and therefore, as we
have seen*, not fit to constitute a condition of the
domestic kind. But be the condition what it may
which is constituted by these rights, of what na-
ture can the obligations be, to which the superin-
tendant is capable of being subjected by means of
them ? They are neither more nor less than those
which a man is capable of being subjected to by
powers. It follows, therefore, that the functions of

* Supra, note, page 150.

254

DIVISION OF OFFENCES.

^HAP. a principal and his superintendant coincide with

A V X«

those of a master and his servant ; and consequently
that the oflPences relative to the two former condi-
tions will coincide with the offences relative to the
two latter.

XLI.

tofrhwthP Offences to which the condition of a master.

touching the
ooodition
a master.

condition of Jite any other kind of condition, is exposed, may.

as hath been already intimated*, be distinguished
into such as . concern the existence of the condi-
tion itself , and such as concern the performance
of the functions of it, while subsisting. First
then, with regard to such as a£fect its existence.
It is obvious enough that the services of one man
may be a benefit to another : the condition of a
master may therefore be a beneficial one. It
stands exposed, therefore, to the offences of wrong-
Jul mn-iimestimnt i wrongful interception, v^surpOr.
timj wrongful imestment, and %vrongfui dkf^tment.
But how should it stand exposed to the offences
of tvrongfuli^dication^ wrongful detrectation, ^md
wrongful in^ition ? Certainly it canijot of it-
self; for services, when a man has the power of
exacting them or not, as he thinks fit, can never
be a burthen. But if to th6 powers, by which
the condition of a master is constituted, the law
thinks fit to annex any obligation on tb,e part of
the master; for instance, that of affording main-

* Vide supra^ xxvii.

DIVISION OP OFFENCES.

15&

t^ance^ or giving wages^ to the servant, or pay- Chap.
ing money to any body else, it is evident, that in
virtue of such obligation the condition may become
a burthen. In this case, however, the condition
possessed by the master will not, properly speak-
ing, be the pure and simple condition of a master :
it will be a kind of complex object^ resolvable
into the beneficial condition of a master, and the
burthensome obligation which is annexed to it.
Still however, if the nature of the obligation Ues
within a narrow compass, and does not, in the
manner of that which constitutes a trust, interfere
with the exercise of those powers by which the
Condition of the superior is constituted, the latter,
notwithstanding this foreign mixture, will still
retain the name of mastership ♦. In this case,
therefore, but not otherwise, the condition of a
master may stand exposed to the offences of
wrongful abdicatioriy wrongful detrectation, and
wTOfngful imposition. Next as to the behaviour of
persons, with reference to this condition, while
considered as subsisting. In virtue of its being a

* In most civilized nations there is a sort of domestic con-
dition, in which the superior is termed a master, while the
inferior is termed sometimes indeed a servant, but more par-
ticularly and more frequently an apprentice. In this case>
though the superior is j in point of usage, known by no other
name than that of a master, the relationship is in point of
fact a mixt one, compounded of that of master and that of
guardian.

150

DIVISION OP OFFENCES*

^^J- benefit, it is exposed to disturbance. This disturb-
ance will either be the offence of a stranger, or
the offence of the servant himself. Where it is
the offence of a stranger, and is committed by
taking the person of the servant, in circumstances
in which the taking of an object belonging to the
class of things would be an act of theft, or (what
is scarcely worth distinguishing from theft) an act
of embezzlement, it may be termed servant-steal'
ing. Where it is the offence of the servant him-
self, it is stiled breach of duty. Now the most
flagrant species of breach of duty, and that which
includes indeed every other, is that which consists
in the servant's withdrawing himself from the
place in Which the duty should be performed-
This species of breach of duty is termed elopement.
Again, in virtue of the power belonging to this
condition, it is liable, on the part of the master, to
abuse. But this power is not coupled with a trust.
The condition of a master is therefore not exposed
to any offence which is analogous to breach of trust.
Lastly, on account of its being exposed to abuse, it
may be conceived to stand, in point of possibility,
exposed to bribery. But considering how few,
and how insignificant, the persons are who are
liable to be subject to the power here in question,
this is an offence which, on account of the want
of temptation, there will seldom be any example
of in practice. We may therefore reckon thirteen
sorts of offences to which the condition of a master

'^■^^^^^'^^w

DIVISION OF OFFENCES. 15?

is exposed ; viz. 1 . Wrongful non-investment of Chap.
mastership. 2. Wrongful interception of master- ^ — >r-^
ship. 3. Wrongful divestment of mastership. 4.
Usurpation of mastership. 5. Wrongful invest-
ment of mastership. 6. Wrongful abdication of
mastership. 7. Wrongful detrectation of master-
ship. 8. Wrongful imposition of mastership.
9. Abuse of mastership. 10. Disturbance of
mastership. 11. Breach of duty in servants.
12. Elopement of servants. 13. Servant-stealing.

XLII.

As to the power by which the condition of a Various
master is constituted, this may ba either limited or servitude.
unlimited. When it is altogether unlimited, the
condition of the servant is stiled pure slavery/.
But as the rules of language are as far as can be
conceived from being steady on this head, the term
slavery is commonly made use of wherever the
limitations prescribed to the power of the master
are looked upon as inconsiderable. Whenever any
such limitation is prescribed, a kind of fictitious
entity is thereby created, and, in quality of an
incorporeal object of possession, is bestowed upon
the servant : this object is of the class of those
which are called rights : and in the present case
is termed, in a more particular manner, a liberty :
and sometimes a privilege, an immunity or an ea>-
emption. Now those limitations on the one hand,
and these liberties on the other, may, it is evident,
be as various as the acts (positive or negative)

158 DIVISION OF OFFENCES.

Chap, which the master may or may not have the power
^' V ^ of obliging the servant to submit to or to perform.
Correspondent then to the infinitude of these
liberties, is the infinitude of the modifications
which the condition of mastership (or, as it is more
common to . say in such a case, that of servitude)
admits of. These modifications, it is evident, may,
in difierent countries, be infinitely diversified. In
difierent countries, therefore, the ofiences charac-
terised by the above names will, if specifically con-
sidered, admit of very different descriptions. If
' there be a spot upon the earth so wretched as to
exhibit the spectacle of pure and absolutely un-
limited slavery, on that spot there will be no such
thing as any abuse of mastership ; which means
neither more nor less than that no abuse of mas-
tership will there be treated on the footing of an
offence. As to the question. Whether any, and
whatj modes of servitude ought to be established
or kept on foot ? this is a question, the solution
of which belongs to the civil branch of the art of
legislation.

XLIII.

Offences Ncxt, with regard to the offences that may
^^^^1?^^^^® concern the condition of a servant. It might
a servant, ggem at first sight, that a condition of this kind
could not have a spark of benefit belonging to it :
that it could not be attended with any other con-
sequences than such as rendered it a mere burthen.
But a burthen itself may be a benefit, in compa-

DIVISION OF OFFENCES* 1^

rison of a greater burthen. Conceive a man's Chap.

A V X*

situation then to be such^ that he must^ at any
rate, be in a state of pure slavery. Still may it
be material to him, and highly material, who the
person is whom he has for his master. A state of
slavery then, under one master, may be a bene-
ficial state to him, in comparison with a state of
slavery under another master. The condition of
a servant then is exposed to the several offences
to which a condition, in virtue of its being a be-
neficial one, is exposed *. More than this, where
the power of the master is limited, and the limi-
tations annexed to it, and thence the liberties of
the servant, are considerable, the servitude may
even be positively eligible. For amongst those
limitations may be such as are sufficient to enable
the servant to possess property of his own:
being capable then of possessing property of his

* It may seem at first, that a person who is in the condi-
tion 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 fact : or, suppose him a slave in point
of fact, and ever so vigilantly guarded, still a person con-
nected 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.

IW DIVISION OP OFFENCES*

Chap, ovm, he may be capable of receiving it from his
master: in short, he may receive wa^e*, or other
emoluments, from his master ; and the benefit
resulting from these wages may be so considerable
as to outweigh tHe burthen of the servitude, and,
by that means, render that condition more be-
neficial upon the whole, and more eligible, than
that of one who is not in any respect under the
controul of any such person as a master. Accord-
ingly, by these means the condition of the servant
may be so eligible, that his entrance into it, and
his continuance in it, may have been altogether
the result of his own choice. That the nature of
the two conditions may be the more clearly under-
stood, it may be of use to shew the sort of cor-
respondency there is between the offences which
affect the existence of the one, and those which
affect the existence of the other. That this cor-
respondency cannot but be very intimate is ob-
vious at first sight. It is not, however, that a
given offence in the former catalogue coincides
with an offence of the same name in the latter
catalogue : usurpation of servantship with usur-
pation of mastershq), for example. But the case
is, that an offence of one denomination in the one
catalogue coincides with an offence of a different
d^omination in the other catalogue. Nor is the
coincidence constant and certain: but liable to
contingencies, as we shall see. First, then, wrong-
ful non-investment of the condition of a servant, if

DIVISION OP OFFENCES* ^^^

it be the offence of one who should have been the
master^ coincides with wrongful detrectation of
inastership : if it be the offence of a third person,
it involves in it non-investment of mastership,
which, provided the mastership be in the eyes of
him who should have been master a beneficial
thing, but not otherwise is wrongful. 2. Wrong-
ful interception of the condition of a servant, if it
be the offence of him who should have been master,
coincides with wrongful detrectation of master-
ship : if it be the offence of a third person, and
the mastership be a beneficial thing, it involves in
it wrongful interception of mastership. 3. Wrong-
ful divestment of servantship, if it be the offence
of the master, but not otherwise, coincides with
wrongful abdication of mastership : if it be the
offence of a stranger, it involves in it divestment
of mastership, which, in as far as the mastership
is a beneficial thing, is wrongful. 4. Usurpation
of servantship coincides necessarily with wrongful
imposition of mastership : it will be apt to involve
in it wrongful divestment of mastership : but
this only in the case where the usurper, pre-
viously to the usurpation, was in a state of servi-
tude under some other master. 5. Wrongful in-
vestment of servantship (the servantship being
considered as a beneficial thing) coincides wi^h*
imposition of mastership ; which, if in the eyes of^
the pretended master the mastership should chance
to be a burthen, will be wrongful. 6. Wrongful

VOL. II. M .

1^ DIVISION OF OFFENCBS*

^HA'. abdication of jservantship coincides with wrongful

A. V J.*

^ — V — ' divestment of mastership. 7. Wrongftd d^tcecta-
tion of servantship^ with wrongful non-investment
of mastership. 8. Wrongful imposition of 8ervan1>-
ship, if it be the offence of the pretended master^
Coincides with usurpation of mastership : if it be
the ofi^nce of a stranger, it involves in it impo-
sition of mastership, which, if in the eyes of the
pretended master the mastership should foe a
burthen, will be wrongful. As to dbuse of mas-
tership, disturbance of mastership, l»reach of duty
in servants, elopement of servants^ and servant^
stealing, these are offences which, witho^it any
change of denomination, bear equal relation to
both conditions. And thus we may reckon thir-
teen sorts of offences to which the condition of a
servant stands exposed: viz. 1. Wrongful non-
investment of servantship. a. Wrongftil inter-
ception of servantship. 3. Wrongful divestment
of servantship. 4. Usurpation of servantship.
5.\Wrongful investment of servantship. 6. Wrong-
ful abdication of servantship. 7. Wrongful de-
trectation of servantship. 8. Wrongfiil imposi-
tion of servantship. 9. Abuse of mastership.
10. Disturbance of mastership. 11. Breach of
duty in servants. 12. Elopement of servants.
13. Servant-stealiDg.

XLIV.

Gardian- We uow come to the offences to which the condi-
tionot aguardian is exposed. A guardian is onewho

-Tv^^mmmKwmmmmmmmmm

DV^MSVm OF JOFIXNCES. ICS

is in^mted with power over anotiier^ living mthin ^« y*
ike compass bf-tite same family, and called a ward; y ^^Mit o f
the power being to be exercised for the benefit of *?«>™*>^"'
the ward. Now then, what are the cases in which
it can be for the benefit of one man, that another,
living within the compass of the same &mily,
should exerdse pow^r over him? Consider dther
€^ ihe parties by himself, and suppose him, in
point of understanding, to be on a level with the
other, it seems evident enough that no such oases
can ever exists. To the production of happiness
on the part of any given person (in like manner
as to the production of any other effiict which is
the result of hmnan agency) three things it is ne-
cessary should concur : knowledge, inclination,
and physical power. Now as there is no man who
is so sure of being inotined, on all occasions, to pro-
mote your happiness as you yourself are, so neither
is there any man who upon the whole can have
had so good opportunities as you must have had
of knowing what is most conducive to that pur-
pose. For who should know so well as you

* 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.

164 DIVISION OF OFFENCES.

Cha». do what it is that gives you paiji or pleasure* ?
Moreover^ as to power^ it is manifest that no
superiority in this respect^ on the part of a
stranger, could, for a constancy, make up for
^o great a deficiency as he must lie under iii
respect of two such material points as knowledge,
and inclination. If then there be a case where it
can be for the advantage of one man to be under
the power of another, it must be on account of
some palpable and very considerable deficiency, on
the part of the former, in point of intellects, or
(which is the same thing in other words) in point
of knowledge or understanding. Now there are
two cases in which such palpable deficiency is
known to take place. These are, 1. Where a
jnan's intellect is not yet arrived at that state
in which it is capable of directing his own inclina-
tion in the pursuit of happiness : this is the case of
infancy f. 2. Where by some particular kno^^n or
unknown circumstance his intellect has either
never arrived at that state, or having arrived at it
has fallen from it : which is the case of insanity.

By what means then is it to be ascertained
whether a man's intellect is in that state or no ?
For exhibiting the quantity of sensible heat in a
human body we have a very tolerable sort of
instrument;, the thermometer ; but for exhibiting

* Ch. xvii. [Limits] § i. f See ch. xiii. [Cases unmeet] § iii.

^mmmm

* 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 imbecillity, 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 borne to be slaves, and ought to be slaves, — Why ?
Because they are so.

165

DIVISION OF OFFENCES.

the quantity of intelligence, we have no such ^^^f
instrument. It is evident, therefore, that the line ' ^^~
which separates the quantity of. intelligence which
is sufficient for the purposes of self-government
from that which is not sufficient, must be, in a
great measure, arbitrary. Where the insufficiency
is the result of want of age, the sufficient quantity
of intelligence, be it what it may, does not accrue
to all at the same period of their lives. It becomes
therefore necessary for legislators to cut the
gordian knot, and fix upon' a particular period, at
which and not before, truly or not, every person
whatever shall be deemed, as far as depends upon
age, to be in possession of this sufficient quantity*.
In this case then a line is drawn which may be
the same for every man, and in the description of

*•

1^ DIVISION OF OFPENCBS*

^»- which, such as it is, whatever persons are con*-
^ V ^ cerned may be certain of agreeitig : the cir-
cumstance of time affording a mark by which the
line in question may be traced with the utmost
degree of nicety. On the other hand, where the
insufficiency is the result of insanity, there ii^ not
even this resoiirce : so that here the legislator has
no other expedient than to appoint some particular
person or persons to give a particular deteiai&ia-
tion of the question, in every instance in wMdi it
occurs, according, to his or their partknilar and
arbitrary discretion.. Arbitrary enoi]^h it miikt
be at any rafe, since the only *ay in which it can
be eicercised is . by < considering whether the share
pf^iiitelligence possessed by the individual in ques-
tion, does or does not come up to the loose and
indeterminate idea which persons so appomted may
chance to entertain with respect to the quantity
which is deemed sufficient.

XLV.

Duration to The lihc then being drawn, or supposed t6 be

be given , , *-^ ^^

to it. SO, it is expedient to a man who cannot, with
safety to himself, be left in his own power, that he
should be placed in the power of another. How
long then should he remain so? Ju&itso long as his
inability is supposed to continue : that is, in the
case of infancy, till he arrives at that period at
which the law deems him to be of fiiU age : in the
case of insanity, till he be of sound mind and
understanding. Now it is evident, that this

DIVISION OF OFFENCES. ^^7

period, in the case of infancy, may not arrive for ^^^J;
d considerable time : and in the case of insanity, ^
perliaps never. The duration of the power be-
longing to this trust must therefore, in the one
case, be very considerable; in the other case,
iudefinite.

XLVI.

TJie next point to consider, is what may be the Po^ewthat
^itent of it ? for as to what ought to be, that is a <*"tie8 that

^ ^ ought to ba

matter to be settled, not in a general analjrtical annexed to
sketch, but in a particular and circumstantial dis-
sertation* By possibiHty, then, this power may
possess any extent that can be imagined : it may
extend to any acts which, physically speaking, it
may be in the power of the ward to perform him-
self> or be the object of if exercised by the
guardian. .Conceive the power, for a moment, to
s^and upon this footing : the condition of the
ward stands now exactly upon a footing with
pure slavery. Add the obligation by which the
power is turned into a trust : the limits of the
power are now very considerably narrowed. What
then is the purport of this obligation ? Of what
nature is the course of conduct it prescribes ? It is
such a course of conduct as shall be best cal-
culated for procuring to the ward the greatest
quantity of happiness which his faculties, and the
circumstances he is in, will admit of: saving
always, in the first place, the regard which the
guardian is permitted to shew to his own hap-

168 DIVISION OF OFFfiNCES.

Chap, piness ; ond^ in the second place, that which he is
obliged, as well as permitted, to shew to that of
other men. This is, in fact, no other than that
course of conduct which the ward, did he but
know how, ought; in point of prudence, to maiiH -^
tain of himself : so that the business of the former
is to govern the latter precisely in the manner in
which this latter ought to govern himself. Now to
instruct each individual in what manner to govern
his own conduct in the details of life, is the parti-
cular business of private ethics : to instruct in-
dividuals in what manner to govern the conduct
of those whose happiness, during non-age, is com-
mitted to their charge, is the business of the art
of private education. The details, therefore, of
the rules to be given for that purpose, any more
than the acts which are capable of being com-
mitted in violation of those rules, belong not to the
art of legislation : since, as will be seen more
particularly hereafter *, . such details could not,
with any chance of advantage, be provided for by
the legislator. Some general outlines -might in-
deed be drawn by his authority : and, in point of
fact, some are in every civilized state. But such
regulations, it is evident, must be liable to great
variation : in the first place, according to the in-
finite diversity of civil conditions which a man

^ See ch. xvii. [Limits] § i.

m^^mmmmmmmmmmimmmmgmmmmmmmmm^mmimiimmmmmmmm^mmmmmmmmm^'m'mmmmf^ifmm

DIVISION OF OFFENCES. ^^

may stand invested with in any given state : in the
next place^ according to the diversity of local
circumstances that may influence the nature of the
conditions which may chance to be established
in different states. On this account^ the offences
which would be constituted by such regulations
could not be comprised under any concise and
settled denominations, capable of a permanent and
extensive application. No place, therefore, can be
allotted to them here.

XLVII.

By what has been said, we are the better pre- to^^the
pared for taking an account of the ofifences to(°°^|j^J[j^
which the condition in question stands exposed.
Guardianship being a private trust, is of course
exposed to those offences, and no others, by
which a private trust is liable to be affected.
Some of them, however, on account of the spe-
cial quality of the trust, will admit of some
further particularity of description. In the first
place, breach of this species of trust may be
termed mismanagement of guardianship : in the
second place, of whatever nature the duties are,
which are capable of being annexed to this con-
dition, it must often happen, that in order to
fqlfil them, it is necessary the guardian should be
at a certain particular place. Mismanagement
of guardianship, when it consists in the hot being,
on the occasion in question, at the place in ques-
tion, may be termed desertion of guardianship.

170 DIVIfilON OF OFfTKliqBf.

^vT '^^^^ I* ^ mwaifert Plio^gW that^ thp object
which Uie guourdwi Ofight to propQpe tp hiptiself^
in thie^ ex^tme of tb^ p^w^p^ ^ wMf h those dutips
are anfteKedy is to prp(()^e for the w^rd the
greatest quantity of happin^isp which can be piro-
cured for him^ consiate^ly with the regard whi^
is due to the other Interests that haye been
inentioned : for this is the object which the ward
would have proposed to hiniself^ and might and
ought tp have been allowed to pri^ose to him-
self^ had he been capable of governing his own
conduct. Now, in oi;der tp procure this happi-
ness, it » necessary that hp should pp^ess a
certain power oyer the olgeets on die use. of which
such .happiness dq>ends. These pbje9ts«a]:e either .
the person of the ward himself, or other objects
that axe es^traneou^ rtp I^^ l^he3e other .objects
are either i^hings xur personp. As to t^r^ then,
ol^cts pf th^s sdassy ^1 as far as a man'^Jbappiness
depends upon the use of th^im, are stiled hia
pTfjpertjf. %hd ease is .the same with the service^
of any^^tw.pver.whom he may happen to pos-
sess a tiepefic^al power, or to whose services he
may hi^ppen jto possess a ^beneficial right. Now
when property of any kind, «rhich is in trust,
sjuffers ,by the delj^upncy of him with whom it is
in ,trust, such offence, of whatever mature it is
in other respects^ m^> be stiled dis$^wfi in
breach of trust: and if;it be .attended with . a
profit to the trustee, it may be sailed pecula-

. i L.mm m^m*9^imKKSvmgmmgm^^9m^^B^9mmmmK^^^^^^^^^^^^^

DnriSION OF OFFENCES* 171

tian** Fourth, For one person to exercise a power CmA».

^L V X«

of any kind over another, it is necessary that the
latter should either perform certain acts, upon
being commahded isd to do by the former, or at
least should suffer certain acts to be exercised
upon himsel£ In this respect a ward must stand
upon the footing of a servant : and the condition
of a ward must, in this respect, stand exposed to
the same offences to which that of a servant
stands exposed : that is, on the part of a stranger,
to disturbance, which in particular circumstances,
will amount to theft : on th^ part of the ward, to>
breach 'Of duty: which, in particular drcumstancest,
ismy be ^<^ted by dcpement. Fifth, Tliere dots
not iseam to be any offisnce conterning guardians-
ship ihat corresponds to' abise of trust : I mean in
tiie Tsense to which Hie Taat^etittioned 'denomina-
tion has been here •confined f» The reason is, that
guardiansh^ being a trust of ^a private natota,
does not, as such, confer upon the trustee anjir
power, either over the persons or over the pro-
perty of any party, other than the befl^dary
Inmself. If by accident it confers on the trustee
a power over any persons whose services constitute
a part of the property of the beneficiary, the
trustee becomes thereby, in certain respects, the
master of sudi servants ^. -Sixth, Bribery also»
is a sort of offence to which, in this case, there

• ISupra, XXXV. t Vide supra, xxv. X Vide supra, xl.

IW DIVISION OP OFFENCES*

C"AF. ig not commonly much temptation. It is an
^^^ offence, however, which by possibUity is capable
of taking this direction: and must therefore he
aggregated to the numher of the offences to which
the condition of a. guardian stands exposed. And
thus we have in all seventeen of these offences :
viz. 1 . Wrongful non-investment of guardianship.
2. Wrongful interception of guardianship. 3.
Wrongful divestment of guardianship. 4. Usur-
pation of guardianship. 5. Wrongful investment
of guardianship. 6. Wrongful ahdicatioh of guar-
dianship. 7. Detrectation of guardianship. 8*
Wrongful imposition of guardianship. 9. Mis-
management of guardianship. 10. Desertion of
guardianship. 11. Dissipation in prejudice of
wardship. 1 2. Peculation in prejudice of wardship..
13. Disturhance of guardianship. 14. Breach of
duty to guardians. 15. Elopement from guar-
dians. 16. Ward-stealing. 17. Bribery iji pre-
judice of wardship.

XLVIII.

Oflfences Next, with regard to offences to which the con-
oondition of ditiou of wardsMp is exposed. Those which
first affect the existence of the condition itself are
as follows : 1 . Wrongful non-investment of the
condition of a ward. This, if it be the offence
of one who should have been guardian, coincides
with wrongfiil detrectation of guardianship : if it
be the offence of a third person, it involves in it
non-investment of guardianship, which, provided

^DIVISION OF OFFENCB9.

175

the guardianship is, in \he eyes of him who should • Cha».
have been guardian, a desirable thing, is wrongful*
2. Wrongful interception of wardship. This, if
it be the offence of him who should have been
guardian, coincides with wrongful detrectation of
guardianship: if it be the offence of a third
person, it involves in it interception of guardian-
iship, which, provided the giiardianship is, in the
eyes of him who should have been guardian, a
desirable thing, is wrongful. 3. Wrongful divest-
ment of wardship. This, if it be the offence of
the guardian, but not otherwise, coincides with
wrongful abdication of guardianship : if it be the
pffence of a third person, it involves in it divest-
ment of guardianship, which, if the guardianship
is, in the eyes of the guardian^ a desirable thing,
is wrongful. 4. Usurpation of the condition of
a ward: an offence not very likely to be com-
xnitted. This coincides at any rate with wrongful
imposition of guardianship; and if the usurper
were already under the guardianship ^f another
guardian, it wiU involve in it wrongful divestment
of such guardianship*. 5. Wrongful investment

* 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 maybe asked) is he divested of his guardianship?—
The answer is — Certainly not of the whole of it: but.

174 DIVI&IQN OFOFFSMCBS.

ihiAP. dF wardship : (the w»tdi^hip being eonsidered i6 A
beneficial thing) this cmncides witli imposition of
guardianship, which, if in the eyes of the pre-
tended guardian the guardianship should be a
burthen, wiH be wrongful. . 6. Wrongful ab^ca-
tion of wardship. This coincides with wrongful
divestment of guardianship^ 7. Wrongful detrec-
tation of wardship. This coincides with wrong-
M intercet)tion of guardianship. 8. Wrongfid
imposition of wardship. This, if the o^nder
be the pre^tended guardian, coincides with usur-
pation of guardianship: if a stranger, it involves
in it wrongftil imposition of guardianship. As to
such of the offences relative to this condition, as
concern tiie consequences of it whUe subsisting,
diey are of -sueJi ^ nature that, without any change
of denomination, they belong equally to the con-
dition of 'a guardian, and that of award. We
may therefore reckon sieventeen sorts of offences
relative to the condition of a ward : I . Wrongful
nou'^investment of wardsMp. 2. WrongfW inter-
ception of wardship. 3. Wrongftd divestment of
wardship. 4. Usurpation of wardship. 5. Wrong-
ful investment of wardship. 6. Wrongfiil abdica-
tion of wardship. 7* Wrongful detrectation of
wardship. 8. Wrongful imposition of wardship.

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.

BIVI8ION OF OFFBNCSS.

9. Mism^nBgesnent of guardiaoiship. 10. JH- ^^*-
sertion of guardianship. 11. Dissijpaticm in ptfe- ^ ^ v ^
judice €i wardship. 1 S. Peculation in prejudid^
of wardship. 13. Disttirbastee of guardiamhip.
14. Breach of duty to guardians. 15. Elopement
from guardians. 16. Ward-stealing. 17. Bri-
bery in prejudice of wardship.

XLIX.

We come now to the offences to which the eour oflences

f • i* 1 "I 1^ touching the

dition of a parent stands exposed : and firsts with condition of
regard toihose by wMch the very existence of the *'^^*^**
condition is affected. On this occasion^ in order
to see the more clearly into the (Subject^ it will be
necessary to distinguish between the natural rela-
tionship, and the legal relationship. Which is
superinduced as it were upon the natural one.
The natural one being constituted by a particular
event, which, either on account of its being already
past, or on some other account, is equally out of
the power of the law, neither is, nor can be made,
the subject of an offence. Is a man your faflier ?
It is not any offence of mine that can make you
not his son. Is he mt your father ? It is not any
offence of mine that can render him so. But al-
though he does in fact bear that relation to you,
I, !by an offence of mine, may perhaps so manage
matters, that he shall not be thought to bear it :
which, with respect to any legal advantages which
either he or you could derive from such relation-
ship, will be the same thing as if he did hot. In

^»

17^

DITISIQN OF OFFENCES.

the capacity of a witness, I may cause the judges
to helieye that he is. not your father, and to decree
accordingly : or, in the capacity of a judge, I may
myself decree him not to be your father. Leaying
then the purely natural relationship as an object
equally out of the reach of justice and injustice,
the legal condition, it is evident, will stand ex-
posed to the same offences, neither more nor less,
as every other condition, that is capable of being
either beneficial or burthensome, stands exposed
tOw Next, with regard to the exercise of the
ftmctions belonging to this condition, considered
as still subsisting. In parentality there must be
two persons concerned, the father and the mother.
The condition of a parent includes, therefore, two
conditions ; that of a father, and that of a mother,
with respect to such or such a child. Now it is"
evident, that between these two parties, whatever
beneficiary powers, and other rights, as also what-
ever obligations, are annexed to the condition oT a
parent, may be shared in any proportions that
can be imagined. But if in these several objects
of legal creation, each of these two parties have
^severally a share, and if the interests of all these
parties are in any degree provided for, it is evi-
dent that each of the parents will stand, with
relation to the child, in two several capacities :
that of a master, and that of a guardian. The
condition of a parent then, in as far as it is the
work of law, may be considered as a complex

DIVISION OP OFFENCES. 177

condition^ compounded of that of a guardian^ and Chap»

• A^ V L»

that of a master. To the parent then, in quality
of guardian, results a set of duties, involving, as
necessary to the discharge of them, certain pow-
ers : to the child, in the character of a ward, a
set of rights corresponding to the parent's duties,
and a set of duties corresponding to his powers.
To the parent again, in quality of master, a set of
beneficiary powers, without any other necessary
limitation (so long as they last) than what is
annexed to them by the duties incumbent on him
in quality of a guardian : to the child, in the cha-
racter of a servant, a set of duties corresponding
to the parent's beneficiary powers, and without
any other necessary limitation (so long as they
last) than what is annexed to them by the
rights which belong to the- child in his capacity of
ward. The condition of a parent will therefore
be exposed to all the offences to which either that
of a guardian or that of a master are exposed :
and, as each of the parents will partake, more or
less, of both those characters, the offences to which
the two conditions are exposed may be nominally,
as they will be substantially, the same. Taking
them then all together, the offences to which the
condition of a parent is exposed will stand as
follows : 1 . Wrongful non-investment of paren-
tality *. 2. Wrongful interception of paren£ality.

* At first view it may seem a solecism to speak of the con-
dition of parentality as one which a man can have need to
VOL. II. N

178 DIVISION OF OFFENCES.

^^/- 3. Wrongful divestment of parentality. 4. Usur-
^ — V — ' pation of parentality. 5. Wrongful investment
of parentality. 6. Wrongful abdication of paren-
tality. 7. Wrongful detrectation of parentality.
8. Wrongful imposition of parentality. 9. Mis-
management of parental guardianship. 10. De-
sertion of parental guardianship. 1 1 . Dissipation
in prejudice of filial wardship. 12. Peculation in
prejudice of filial wardship. 1 3. Abuse of paren-
tal powers. 1 4. Disturbance of parental guardi-
anship. 15. Breach of duty to parents. 16. Elope-
ment from parents. 1 7. Child-stealing. 1 8. Bri-
bery in prejudice of filial wardship.

Offences Ncxt with regard to the offences to which the

touchfng the

iiiial con-

dition. •

be invested with. The reason is, that it is not common for
any ceremony to be required as necessary to a man'& being
deemed in law. the father of such or such a child. But the
institution of such a 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 illegi-
timate child is rendered legitimate by the subsequent mar-
riage 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-in-
vestment 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.

^r^}^ WJi

DIVISION OF OFFBNCES. 179

Jilial condition *^ the ccmdition of a son or daugh- Cbap.

, XVi.

' ter stands exposed. The principles to be pursued
in the investigation of offences of this description^
have ahready been sufficiently developed. It will
be sufficient^ therefore, to enumerate them with-
out further discussion. , The only peculiarities by
which offences relative to the condition in question
stand distinguished from the offences relative to
all the preceding conditions, depend upon this one
circumstance; viz. that it is certain every one
must have had a father and a mother : at the same
time that it is not certain that every one must
have had a master, a servant, a guardian, or a
ward. It will be observed all along, that where a
person, from whom, if alive, the benefit would be
taken, or on whom the burthen would be imposed,
foe dead, so much of the mischief is extinct along
with the object of the offence. There still, how-

* 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 em-
ployed in another sense, perhaps more frequently than in
this : more frequently in opposition to a person of full age,
. an aduUf than in correlation to a parent. For the condition
itself we have no other word than Jiliatioti .- an ill-contrived
term, not analogous to paternity and maternity : the proper
term would have been filiality : the word filiation is as fre-
quently, perhaps, and more consistently, put for the act of
establishing a person in the possession of the condition of
filiality.

180 DIVISION OF OFFENCES.

vVr'* ^y^^f remains so much of the mischief as depends
upon the advantage or disadvantage which might
accrue to persons related, or supposed to be re-
lated, in the several remoter degrees, to him in
question. The catalogue then of these offences
stand as follows : 1 . Wrongful non-investment of
filiation. • This, if it be the offence of him or her
who should have been recognized as the parent,
coincides with wrongful detrectation of parenta-
lity : if it be the offence of a third person, it in-
volves in it non-investment of parentality, which,
provided the parentality is, in the eyes of him or
her who should have been recognized as the pa-
rent, a desirable thing, is wrongful. 2. Wrongful
interception of filiation. This, if it be the offence
of him or her who should have been recognized
as the parent, coincides with wrongful detrecta-
tion of parentality : if it be the offence of a third
person, it involves in it interception of parentality,
which, provided the parentality is, in the eyes of
him or her who should have been recognized as
parent, a desirable thing, is wrongful. 3. Wrong-
ful divestment of filiation. This, if it be the
offence of him or her who should be recognized
as parent, coincides with wrongful abdication of
parentality : if it be the offence of a third person,
it involves in it divestment of parentality : to wit,
of paternity, or of maternity, or of both : which,
if the parentality is, in the eyes of him or her who
should be recognised as parent, a desirable thing.

DIVISION OF OFFENCES.

are respectively wrongful. 4. Usurpation of
filiation. This coincides with wrongful imposition
of parentality ; to wit, either of paternity, or of
maternity, or of both : and necessarily involves in
it divestment of parentality, which, if the paren-
tality thus divested were, in the eyes of him or
her who are thus divested of it, a desirable thing,
is wrongfiil. 5. Wrongful investment of filiation :
(the filiation being considered^ as a beneficial
thing.) This coincides with imposition of paren-
tality, which, if in the eyes of the pretended father
or mother the parentality should be an undesirable
thing, will be wrongful. 6. Wrongful abdication
of filiation. This necessarily coincides with wrong-
ful divestment of parentality ; it also is apt to in-
volve in it wrongful imposition of parentality ;
though not necessarily either to the' advantage or
to the prejudice of any certain person. For if a
man, supposed at first to be your son, appears
afterwards ,not to be your's, it is certain indeed
that he \B the son of some other man, but it may
not appear who that other man is. 7. Wrongful
detrectation of filiation. This coincides with
wrongful non-investment or wrongful interception
of parentality. 8. Wrongful imposition of filia-
tion. This, if it be the offence of the pretended
parent, coincides necessarily with usurpation of
parentality : if it be the offence of a third person,
it necessarily involves imposition of parentality ;
as also divestment of parentality : either or both

181

18^ DIVISION OP OFFfiNCeS.

CnAP. of which, according to the circumstance above-
"* — >^ — ' mentioned, may or may not be wrongful. 9. Mis-
management of parental guardianship. 10. De-
sertion of parental guardianship. 1 1 . Dissipation
in prejudice of filial wardship. 12. Peculation in
prejudice of filial wardship. 1 3. Abuse of pal^n-
tal power. 14. Disturbance of parental guardi-
anship. 15. Breach of duty to parents. 16*
Elopement from parents. 1 7. Child-stealing. 1 8.
Bribery in prejudice of parental guardianship.

LI.

Condition of We shall now be able to apply ourselves with

a husband. > • n t

— Poweis. some advantage to the examination of the several

duties, and

rights, that offences to which the marital condition, or con-
nez'Litoiti dition of a husband,. stands exposed. A husband
is a man, between whom and a certain woman,
who in this cade is called his wife, there subsists a
legal obligation for the purpose of their living
together, and in particular for the purpose of a
sexual intercourse to be carried on between them;
This obligation will naturally be considered in
four points of view: 1. In respect, of its eom-
mencement. 2. In respect of the placing it. 3.
In respect of the nature of it. 4. In respect of
its duration. First then, it is evident, that in ^
point of possibility, one method of commencement
is as conceivable as another: the time of its
commencement might have been marked by one
sort of event (by one sort of signal, as it may
here be called) as well as by another. But in

DIV|${OI<r OF OFFi^MCES. 1S3

practice the signal has usually heen^ as in point
of utility it ought constantly to be, a contract
entered into by the parties : that is, a set of signs,
pitched upon by the law, as expressive of their
mutual consent f to take upon them this condition-
Second, and third, with regard to the placing
of the obligations which are the result of the con-
^ tm^t» it is eyident that diey mupt rest solely on
om side^ Qjr mi^t^Uy on both. On the first sup-
position^ tb^ condition is not to be distinguished
from pura slaypry. In this case, either the wife
must he the slave of the husbam^ or the husband
of ijie wife. The first of these suppositions has
perhaps never been exemplified ; the opposing
influence of physical causes being too universal
to have ev^er been surmounted : the latter seems
to have 3)een exemplified but too often ; perhaps
among the first Romans ; at any rate, in many
barbarous nations. Thirdly, With regard to the
nature of ,the obligations. If they are not suf-
fered to rest all on one side, certain rights are
thereby given to tlte other. There must, there-
fore, be rights on both sides. Now, where there
are mutual rights possessed by two persons, as
against each other, either there are powers an-
nexed to those rights, or not. But the persons in
question are, by the supposition, to live together :
in which case we have shewn *, that it is not only
expedient, but in a manner necessary, that on

* Supra.

18* DIVISION OF OFFENCES.

Chap, one sidc there should he powers. Now it is only
' — V — ' on one side that powers can he: for suppose
them on hoth sides^ and they destroy one another.
The question is then^ In which of the parties these
powers shall he lodged ? we have shewn, that on
the principle of utility they ought to he lodged in
the hushand. The powers then which subsist
being lodged in the husband, the next question
is. Shall the interest of one party only, or of
both, be consulted in the exercise of them ? it is
evident, that on the principle of utility the inte-
rests of both ought alike to be consulted : since in
two persons, taken together, more happiness is
producible than m one. This being the case, it
is manifest, that the legal relation which the
husband will bear to the wife will be a complex
one : compounded of that of master and that of
guardian.

LII.

Offences The offeuces then to which the condition of a

touclung the

oonditioD of husbuud will bc cxposcd, will be the sum of those

a bniband.

to which the two conditions of master and guar-
dian are exposed. Thus far the condition of a
husband, with respect to the general outlines of
it, stands upon the same footing as that of a
parent. But there are certain reciprocal services,
which being th^ main subject of the tnatrimonial
contract, constitute the essence of the two matri-
monial relations, and which neither a master nor
guardian, as such, nor a parent, at any rate, have

DIVISION OP OFFENCES. ^^

usually been permitted to receive. These must
of course have been distinguished from the indis-
criminate train of services at large which the
husband in'his character of master is impowered
to exacts and of those which in his character of
guardian he is bound to render. Being thus
distinguished^ the offences relative to the ^wo
conditions have^ in many instances^ in as far as
they have reference to these peculiar services,
acquired particular denominations. In the first
place, with regard to the contract, from the cele-
bration of which the legal condition dates its
existence. It is obvious that in point of possi-
bility, this contract might, on the part of either
sex, subsist with respect to several persons of the
other sex at the same time : the husband might
have any number of wives : the wife might have
any number of husbands : the husband might
enter into the contract with a number of wives at
the same time : or, if with only one at a time, he
might reserve to himself a right of engaging in a
similar contract with any number, or. with only
such or such a number of other ^ women after-
wards, during the continuance of each former
contract. This latter accordingly is the footing
upon which, as is well known, marriage is and
has been established in many extensive countries :
particularly in all those which profess the Maho-
metan religion. In point of possibility, it is
evident that the like liberty might be reserved on

1^ DIVISION OP OFJ?MN€m.

^^£* the paxt of the wife : though in poit^t of practice
no examples of such m arraagement seem, ever
to have occurred. Whidi of all these arrange-
ments is, in pomt of utility, the most expedient,
k a question which would require tpo much dis-
cusdioB to answer in the course of an analytical
process like the present, and which belongs indeed
to tibe civil branch of legislation, rather than to
the penal *. In Christian countries, the solemni*
zation of any sueh contract is made to exclude the
solefflfitaalion of any subsequent one during the
continuance of a former : and the solemmzation of
any such subsequent contract is accordingly treated
as an o£Penoe, under the name of Palt/gav^*
Polygamy then is .at any rate, on the part of the
man, a particular modifieation of that o£fenep
which may he stiled usurpation of the conditiop
of a husband. As to its odier effects, they will
be different, according as it was the mm only, or
the woman only, or both, that were in a state of
matrimanjr at tie time of the ccmmssum af fche
oflGanoe. If the man only, then his.oSence j^
voliT^es in it pro fanto that of wrongful divestment
of the conditicm of a wife, in prejudice of his
prior wifef . If the woman only, then it involves

* See ch. xvii. [Limits] § iv.

t 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 Qf ihe oSeoces
of this class. Vide supra, xxxvi.

DIVISION OV OPFENCOSS. ^W

in it pro tanto that of wrongful direstment of the
condition of ft husband, in prejudice of her pricnr
husband; If both were akeady married, it of
course ii^volves both the wrongful divestments
which have just been %aentioned. And on' the
other hmid also, the converse of all this may be
observed with regard to polygamy on the part of
the woman. Second, As the engaging not to
enter into any subsequent ^igagement of the like
kind during the continuance of the first, is one of
the c<mditio»s on which the law lends its sanction
to the first ; so another is, the inserting as one of
the articles of this engagement, an undertaldtig
not to render to, or accept from, any other parsoft
the services wh^ch foraa the dbaracteristic otjed;
of it : the rendermg or acceptance of any 43uck
services is accordingly treated as an (^fence, under
the name of eduUery: tmder which name is also
comprised the offence of the stranger, who, in the
commission of the above olfence, is the secessaary
accomplice. Third, Disturbing either of the
parties ' to this engagement, in the possession ci
these characteristic services, may, in like mimner,
be distinguished fi:'om the ofience of disturbing
them in the enjoyment of the miscellaneous ad-
vantages derivable from the same condition ; and
on whichever side the blame rests, whether that
of the party, or that of a third person, may be
termed wrmgful withholding of connubial services.
And thus we have one^and-twenty sorts of of-

188 DIVISION OF OFFENCES.

Cbap. fences to which^ as the law stands at present in
Christian countries^ the condition of a hnsband
stands exposed : viz* 1. Wrongful non-investment
of the condition of a husband. 2. Wrongful
interception of the condition of a husband.
3. Wrongful divestment of the^ condition of a
husband. 4. Usurpation of the condition of a
husband. 5. Polygamy. 6. Wrongful invest-
ment of the condition of a husbahd. 7. Wrong-
ful abdication of the condition of a husband.
8. Wrongful detrectation of the condition of a
husband. 9. Wrongful imposition of the condi-
tion of a husband. 10. Mismanagement of ma-
rital guardianship.. 11. Desertion of marital
guardianship. . 12.. Dissipation . in prejudice of
matrimonial wardship. IS. Peculation in preju-
dice of matrimonial wardship.. 14. Abuse of
marital power. 15. Disturbance of marital guar-
dianship. 16. Wrongful withholding of connu-
bial services. 1 7* Adultery. 18. Breach of duty
to . husbands. . 19* Elopement from husbands.
20. Wifie-stealing. 2i. Bribery in. prejudice of
marital guardianship *.

* I. SsMir PUBLIC o£fences.^— Falsehoods contesting, or of-
fences against justice destroying, the validity of the mar-
riages of people of certain descriptions : such as . Jews,
Quakers, Hugonots, &c. &c.

II. SELF-asGAKDiKO o£fences, — Improvident marriage on
the part of minors.

DIVISION OP OFFENCES. 18^

LIII.

Next with regard to the offences to which the q^.^^^
condition of a wife stands exposed. From the *o«cWng the

\ *^ oondiUoQ of

patterns that have been exhibited abeady, the«^««
' coincidences and associations that tak^ place be-
tween the offences that concern the existence of
this condition and those which concern the exis*-
tence of the condition of a husband^ may easily
enough be apprehended without farther repeti-
tions. The catalogue of those now under con-
sideration will be precisely the same in every
article as the catalogue last exhibited.

hlY.

Thus much for the several sorts of offences
relative to the several sorts of domestic conditions :
those which are constituted by such natural rela-
tions as are contiguous being included. There
remain those which are uncontiguous : of whiclb
after so much as has been said of the others^ it
will naturally be expected that some notice should
be taken. These, however, do not afford any of
that matter which is necessary to constitute a
condition. In point of &ct, no power seems
ever to be annexed to any of them. A grand-
father, perhaps, may be called by the law to take
upon him the guardianship of his orphan grand-
son : but then the power he has belongs to him
not as grandfather, but as guardian. In point of
possibility, indeed, power might be annexed to
these relations, just as it might to any other*

190 DIVISION dp OFPBNCES.

CwAP. But still no new sort of domestic condition would

XVL

result from it : since it has been shewn that there
can be no others^ that, being constituted by
power^ shall be distinct from those which hare
been already mentioned. Such as they are, how-
ever, they have' this in common with the hefote-
mentioned relations, that they are capable of
importing either benefit or burthen: they there-
fore stand exposed to the several offences whereby
those or any other relations are liable to be affected
in point of existence. It might be expected,
therefore, that in virtue of these offences, they
should be added to the list of the relations which
are liable to be objects of delinquency. But the
fact is, that they already stand included in it : and
although not expressly named, yet as efiectually
as if they were. On the one hand, « it is only by
affecting such or such a contiguous relation that
any offence, affecting uneontiguous relations can
take place. On the other hand, neither can any
offence, affecting the existence of the contiguous
relations, be committed, without affecting the
existence of an indefinite multitude of such as
are uneontiguous. A false witness comes, and
causes it to be believed that you are the son of a
woman, who, in truth, is not your mother. Whut
follows ? An endless tribe of other false persua-
sions — that you are the grandson of the father
and of the mother of this supposed mother : that
you are the son of some husband of her's, or, at

DIVISION OF OFFENCES. Wl

ledst> of sdoie man with whom she has cohabited: Om^
the grandson of his father and his mother; and
so on : the brother of their other children^ if they
have any : the brother-in-law of the husbands and
wives of those children, if married : the uncle of
the children of those children: and so on. — On
the other hand, that you are not the son of your
real mother, nor of your real father : that you are
not the grandson of either of your real grand-
fathers or grandmothers ; and so on without end :
all which persuasions result from, and are included
in, the one original false persuasion of your being
the son of this your pretended mother.

It should seem, therefore, at first sight, that
none of the ofiences against these uncontiguous
relations could ever come expressly into question :
for by the same rule that one ought, so it might
seem ought a thousand others : the ofiences against
the uncontiguous being merged as it were in
those which affect the contiguous relations. So
far, however, is this from being the case, that in
speaking of an ofifence of this stamp, it is not
uncommon to hear a great deal said of this or
that uncontiguous relationship which it affects, at
the 4&^tbe time that no notice at all shall be taken
of ^y of those which are contiguous. How
happens this ? Because, to the uncontiguous rela-
tion are annexed perhaps certain remarkable ad-
vantages or disadvantages, while to all the inter-
mediate relations none shall be annexed which are

I ^..ii^ ■ •x./VWIt^^ll —^

IM DIVISION OF OFFENCES.

Cha». in comparison worth noticing. Suppose Antony
or Lepidus to have contested the relationship of
Octavius (afterwards Augustus) to Caius Julius
Cassar. How could it have been done ? It could
only have been by contesting, either Octavius's
being the son of Atia, or Atia's being the daughter
of Julia, or Julia's being the daughter of Lucius
Julius Csesar, or Lucius Julius Ca&sar*s being the
father of Caius. But to have been the son of
Atia, or the grandson of Julia, or the great
grandson of Lucius Julius Gaesar, was, in com-
parison, of small importance. Those intervening
relationships were, comparatively speaking, of no
other use to him than in virtue of their being so
many necessary links in the genealogical chain
which connected him with the sovereign of the
empire.

As to the advantages and disadvantages which
may happen to be annexed to any of those uncon-
tiguous relationships, we have seen already that
no powers over the correlative person> nor any
corresponding obligations, are of the number.
Of what nature then can they be? They are, in
truth, no other than what are the result either of
local and accidental institutions, or of some Spon-
taneous bias that has been taken by the moral
sanction. It would, therefore, be to little purpose
to attempt tracing them out a priari by any ex-
haustive process : all that can be done is, to pick
up and lay together Some of the principal articles

DIVISION OP OFFENCES. ^^3

in each catalogue by way of specimen. The ad- c--
vantages which a given relationship is apt to
impart^ seem to be referable chiefly to the 'follow-
ing heads : 1 . Chance of succession to the pro-
perty, or a part of the property, of the correlative
person. 2. Chance of pecuniary support, to be
yielded by the correlative person, either by ap- '^
pointment of law, or by spontaneous donation.
3. Accession of legal rank ; including any legal
privileges which may happen to be annexed to it:
such as capacity of holding such and such bene-
ficial ofiices; exemption from such and such bur-
thensome obligations; for instance, paying taxes,
serving burthensome ofiices, &c. &c. 4- Accession
of rank by courtesy ; including the sort of repu-
tation which is customarily and spontaneously
annexed to distinguished birth and family alliance :
whereon may depend the chance of advancement
in the way of marriage, or in a thousand other
ways less obvious. The disadvantages which a
given relation is liable to impart; seem to be re-
ferable chiefiy to the following heads: 1. Chance
of being obliged, either by law, or by force of
the moral sanction, to yield pecuniary support to
the correlative party. 2. Loss of legal rank : in-
cluding the legal disabilities, as well as the bur-
thensome obligations, which the law is apt to
annex, sometimes with injustice enough, to the
lower stations. 3. Loss of rank by courtesy:

VOL. II. • o

IM BIYISIOM OF OFFBMCBS.

including the bss of the advantages aitnexdb by
custom to such rank. 4- Incapacity of contraot-
ing matrimony with the correlative person, whcare
the supposed consanguinity or affinity lies within
the prohibited degrees ♦.

* Ib pursuance of the plan adopted with relation to semi-
public and self-regarding offences, it nlay here be proper to
exhibit such a catalogue as the nature of the design will
admit, of the several genera or inferior divisions ot poMic
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
ihe not opposing the commission of positive.) 2. Egpumage
(in favour of foreign rivals not yet enamiecu) 3< Injuries tb
foreigners at large (including piracy.) 4» Injuries to privi-
leged foreigners such as ambassadors.)

II. Offences against justice. 1. Offences against judi-
cial trust : viz. Wrongful non-investment of judicial trust,
wrongful interception of judicial trust, wrongful divestment
of judicial trust, usurpation of judicial trust, wrongful invest- .
ment of judiei«l trusty wrongful abdication of judicial trust,
wrongful detrectation of judicial trust, vnrcmgful imposition
of judicial trust, breach of judicial trust, abuse of judicia)
trust, disturbance of judicial trust, and bribery in prejudice
of judicial trust.

Breach and abuse of judicial trust may be either inten-
tional or unintentitfnaL Intentional is culpable-ttt any rate.
Unintentional will proceed either from inadvertence, or ftmsk
mis-supposal : if the inadvertence be coupled with hee4t
lessness, or the mi$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

DITISKIN OF 0EFEMCS8* 1^

LV. Cba*.

XVI.

We eome now to civil conditions : these^ it may ^j^jpj^.
well be imagined^ may be infinitely various: as**^^-

■ ^..-■-■—1 ■■ mmmm^ , ^ — — .^ ■ -^■■i ■ »»^ >m ■^-■. - ■■■■ ■■ ■■»■.■■ .1 ,

ag^nst justice.] They foe too> multifarious^ and too ill pro-
vided with names, to be examined here.

If a man faiU 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 re-
quisite 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 judical 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 misdiiefs 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 pur-
ppse of it to avoid producing. These are either primary '
{that is immediate) or remote : remote are of the 2d, 3d, or
4th order, and so on. The primary are those which import
actual pain to persons assignable, and are therefore mis*
chievous in themselves : the secondary are mischievous on
account oi the tendency they have to produce some article
<xt articles in the catalogue of those of the first order; and
are therefore mischievous in their effects. Those of the 3d
order are mischievous only on account of the connection
they have in Uie way of productive tendency, asibefore, witib
those of the 9d order: and so on.

Primary inconveniences, which it ought to be the obje^et
of procedure to provide against, are, 1. The continuance of

■ • ■ « •«■

196

DIVISION OF OFFENCES.

Chap, varfous as the acts which a man may be either com-

XVI

' manded or allowed, whether for his own benefit, or

the individual offence itself, and thereby the encrease as well
as continuance of the mischief of it. 2. The continuance
of the whole mischief of the individual offence. 3. The
coiitinuance 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 per-
sons accused. .8. Unnecessary labour, expence, or other
suffering or danger, on the part of superior judicial officers.
9. Unnecessary labour, ex pence, or other suffering or danger,
on the part of ministerial or other subordinate judicial
officers. 10. Unnecessary labour, expence, or other suffering
or danger, on the part of persons whose co-operation is
requisite pro re natd, in order to make up the necessary com-
plement of knowledge and power on the part of judicial
officers, who are such by profession. 11. Unnecessary la-
bour, expence, 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 counsultative pre-
interpretative (or purely civil) branch of procedure. 1. Mis-
interpretation or adjudication. In the executive (including
the penal) branch. 2. Total impunity of delinquents : (as
favouring the production of other offenqes of the like nature.)
3. Partial impunity of delinquents. 4. Application of pu-
nishment improper in specie, though perhaps not in degree
(this lessening the beneficial efficacy of the quantity em-
ployed.) 5. ' Unoeconomical application of punishment,
though proper, perhaps, as well in specie as in degree. 6.
Unnecessary pecuniary expence on the part of the state.

DIVISION OF OFFENCES. i^T

that of Others, to abstain-from or to perform. As C"^'-
many different denominations as there are of per-

Inconveniences of the 3d order are, 1. Unnecessary delay.
8. Unliecessary intricacy.

Inconveniences of the 4th order are, I. Breach, 3. Abuse,
3. Disturbance, of judicial trust, as above: viz. in as far as
these offences are preliminary to and distinct from those of
the 2d and 3d 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. 1. Offences against phtJiano-paranomic trust :
(<f>6av6}, to prevent ; vapavofua, an offence.) 3. Offences against
phthano-symphoric trust : avfupopa, a calamity. The two trusts
may be termed by the common appellation of prophylactic :
(vpo, before-hand, and (l)vXarru, 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 con-
sists in the management of the several sorts of things ap-
propriated to the purposes of war: such as arsenals, fortifi-
cations, dock-yards, ships of war, artillery, ammunition,
military magazines, and so forth. It might be termed polemo-
tamientic : from itoXc/ao^, war : and rafAieyq, a steward *.

•

* A namber of different branches of public trust, none of which liave 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.

^98 DIVISION OF OFFENCEd.

XVI.

sons dhrfaiigtiisbed with a view to such commatidif
and allowances (those denominations only except-

•

v. Offences against the positive eitcrease of the
jTATioKAL felicity. 1. Ofiences against episturo-threpHc
trust: , (eicKmifAvi, knowledge; and rpefjw, 'to nourish or pro-
mote.) 2. Offences against eupadagogue trust: €v, well;
and vcu^ary6)y€a>f to educate. 3. Offences against noso-comidl
trust : voo-o^, a disease ; and xo/At^tv, to take care of. 4. Of-
fences against moro-comiar trust : (fMpoq, on insane person.)

5. Offences against ptocho-comial trust : (vre^; the poor.)

6. Offences against antembletic trust : (ayre/A^oXXa^, to bestow
in reparation of a loss.) 7* Offences against hedonarchic
trust : (vj^youf pleasures ; and apx^fAou, to preside over.) The
above are exam{>les 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 denomina-
tion the same: and as to what turns iipon 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 comprized under some such
general name as that of agatho^oieutic trust : (ayal^owoieo), to
do good to any one.)

• Vi. Offences against the public wealth. 1. 1N"on-
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
trufll: the same as offences against judicial and military

DIYISKW OF OPFBNGB8. *^

-ed whidb relate to' tbe conditions above spoken of
under the name of domestic ones) so many cml

trasts. Offences against the original revenne^ 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 demosw-tami'
entic trust: (hifMo-M, things belonging to the public: and
rafueifi, 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 accom-
modation of individuals : such as public roads and waters,
public harbours, post-pffices, 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 cigatho^poieutic trust as above, or with offences
against ethno-plutistie 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.

yil. Offences against population. 1. Emig^tion.
S. Suicide. 3. Procurement of impotence or barrenness.-
4. Abortion* 5. Unprolific coition. 6. Celibacy.

VIII. Offences against the national wealth. 1.
Idleness. 9. Breach of the regulations made in the view of
preventing the application of industry to purposes less pro-
fitable, in prejudice of purposes more profitable. 3. Offen-
ces against ethno-plutistic frust ; (Xaoq, the nation at large ;
vXovTf^y to enrich.

IX. Offences against the sovereiontt. 1. Offences
against sovereign trust : corresponding to those against judi-
cial, prophylactic, military, and fiscal trusts. Offensive rebel-
lion includes wrongful interception, wrongful divestment,

900 DIVISION OF OFFENCES.

Chap, conditions one might enumerate. Means how-
ever, more or less expKcit, may l>e found out of

circumscribing their infinitude.

usurpation, and wrongful investment, of sovereign trust, with
the offences accessary thereto. Where the trust is in a single
person, wrongful interception, wrongful divestment, usurpa- ,
tion, and wrongful investment, cannot any of them, be com-
mitted without rebellion; abdication and detrectation can
never be deemed wrongful ; breach and abuse of sovereign trust
can scarcely 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 poli-
tical vilification, are offences accessory to such disturbance.
Sovereign power (which, upon the principle of utility, can
never be other than fijluciary) is exercised either by rule or
without rule : in the latter case it may be termed autocratic :
in the forpaer case it is divided into two branches, the legis-
lative and the executive *. In either case, where the desig-
nation 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 a:n ivestitive 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, mili-
tary power, and so forth, may therefore be exerciseable by a

* See cb« xvii. [Limits] § iii.

- -- -■— ■ WW'-

DIVISION OP OFFENCES. «01

What the materials are, if so they may be ^"^p.
called^ of which conditions^ or any other kind of

man, either directly, proprid manu ; or indirectly, manu
aliend *» Power to be exercised manu aUerid is investitive,
which may or may not be accompanied by divestitive. Of
sovereign power, whether autocratic, legislative, or execu-
tive, the several public trusts above-mentioned form so many
subordinate branches. Any of these powers may be placed,
either, 1. in an individual ; or, 9. 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 removeable: 3. By the
orders being reversible.

X. OrnENCES against religion. 1. Offences tending to*
weaken the force of the religious sanctfon : including blas-
phemy and profaneness. 2. Offences tending to misapply
the force of the religious 'sanction : including false prophe-
cies, 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 gene-
ral. I. Immoral publications. 2. Offences against the
trust of an ambassador ; or, as it might be termed, presheuiic
trust. 3. Offences against the trust of a privy-counsellor ;
or, as it might be termed, smyhouleutic trust. 4. In pure or
mixed monarchies, prodigality on the part of persons who
are about the person of th^ 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.

* In the former case, the power might be termed in one word, aiaochirout :
in the latter, heterockirotu : (auro^, a man's own; ^^ifp, ahand: Irffpo; ano-
ther's,)

Ml DlVISiOK OF OPPffif CBS.

■

legal possession, can be made *up^ we have ^dbready
se^n: b^ieficial powers, fiduciary powers, bener
ficial rights^ fiduciary rights^ relative duties, ab-
solute duties. But as many conditions as import
a power or right of the fiduciary kind>^ as
possessed by the person whose condition is in
question, belong to the head of trusts. The cata-
logue of the o£Pences to which these conditions are
exposed, coincides therefore exactly with the
catalogue of o£Pences against trust: under which
head they have been considered in a general pmnt
of view under the head of ofibnces against trust:
and such of them as are of a domestic nature, in
a more particular manner in the character of
offences against the ^^veral domestic conditions.
Conditions constituted by such duties of the rela-
tive kind, as have for their connterpaiis trusts
constituted by fiduciary powers, as well as rights
on the side of the correlative party, and those of
a private nature, have also been already discussed
under the appellation of domestic conditions. The
same observation may be applied -to the condi-*
tions constituted by such powers of the beneficial
kind over p^sons as are of a private nature : as
also to the subordinate correlative conditions con-
stituted by. the duties corresponding to those
rights and powers. As to absolute duties, there
is no, instance of a condition thus created, of
which the institution is upon the principle of
utility to be justified ; unless the several religious

DlVHflOM «OF OFFENCES. ^^

conditions of the monastic kind should be allowed Caaf.
of as examples. There remain^ as the only ma-
terials out of which the conditions which yet
remain to be considered can be composed^ condi-
tions constituted by beneficial powers over things ;
conditions constituted by beneficial rights to things
(that is, rights to' powers over things) or by rights
to those rights, and so on ; conditions constituted
by rights to services ; and conditions constituted
by the duties corresponding to those respective
rights. Out of these are to be taken those of
which the materials are the ingredients of the
several modifications ^f property, the several con-
ditions of proprietorship. These are the condi-
tions, if such for a moment they may be stiled,
which having but here and there any specific
names, are not commonly considered on the foot-
ing of conditions : so that the acts which, if such
conditions were recognized, might be considered
as offences against those conditions, are not
wont to be considered in any other light than
that of offences against property.

Now the case is, as hath been already inti-
mated*,, that of these civil conditions, those
which are wont to be ccmsidered under that name,
are not distinguished by any uniform and explicit
line from those of which the materials are wont

* SuprarXvii..

H^^^— — — i^^^a^W^^I— ^— ^iw^»^pi»^^^^^^^»'Wg^^^ ■ ■' _^ ■ 'Wpm^^mffV- ^ "^ 4««» i m -rr-^mrwmm&^W

904 DIVISION OF OFFENCES.

to be carried to the head of property: a set of
rights shall^ in one instance, be considered as
constituting an article of property rather than a
condition: while, in another instance, a Set of
rights of the same stamp is considered as con-
stituting rather a condition than an article of
property. ' This will probably b6 found to be the
case in all languages : and the usage is different
again in one language from what it is in another.
From these causes it seems to be impracticable to
subject the class of civil conditions to any exhaus-
tive method : so that for making a complete collec-
tion of them there seems to be no other expedient
than that of searching the language through for
them, and taking them as they come. To exemplify
this observation, it may be of use to lay open the
structure as it were of two or three of the prin-
cipal sorts or classes of conditions, comparing
them with two or three articles of property which
appear to be nearly of the same complexion: by
this means the nature and generation, if one may
so call it, of both these classes of ideal objects
may be the more clearly understood.

The several sorts of civil conditions that are
not fiduciary may all, or at least the greater part
of them, be comprehended under the head of
rank, or that of profession ; the latter word being
taken in its most extensive sense, so as to include
not only what are called the liberal professions,
but those also which are exercised by the several

DIVISION OF OFFENCES* ^^

sorts of traders^ artists^ manufacturers, and other
persons of whatsoever station, who are in the way
of making a profit by their labour. Among ranks
then, as well as professions, let us, for the sake
of perspicuity, take for examples such articles as
stand the clearest from any mixture of either
fiduciary or beneficial power. The rank of Jknight-
hood is constituted, how ? by prohibiting all other
persons from performing certain acts, the perform-
Le of which is the symbol of the order, at the
same time that the knight in question, and his
companions, are permitted: for instance, to wear
a ribbon of a certain colour in a certain manner:
to call himself by a certain title: to use an armo-
rial seal with a certain mark on it. By laying all
persons but the knight under this prohibition, the
law subjects them to a set of duties : and since
from the discharge of these duties a benefit results
to the person in whose favour they are created, to
wit, the benefit of enjoying such a share of extra-
ordinary reputation and respect as men are wont
to yield to a person thus distinguished, to dis-
charge them is to render him a service: and the
duty being a duty of the negative class, a duty
consisting in the performance of certain acts of
the negative kind*, the service is what 'may be
called a service of forbearance. It appears then,
that to generate this condition there must be two

* See ch. [Actions] viii.

DIVISION OP OWnVCWh

^^* soffte of services: that which is the immediate
cause 'of it^ a service of ike neg^ive kind> to be
rendered by the community at large : that which
is the cause again of this service^ a service of the
positive kind, to be rendered by the law.

The condition of a professional man stands upon
a narrower fixating. To constitute, this condition
there needs nothing more than a permission given
him on the part of the legislator to perform those
acts, in the performance of which consists the
exercise of his profession: to give or sell his
advice or assistance in matters of law or physic:
to give or sell his services as employed in the exe*
cuting or overseeing of a manufacture or piece of
work of such or such a kind: to sell a commodity
^ such or such a sort. Here then we see there
is but one sort of service requisite; a service
which may be merely of the negative kind, to be
rendered by the law: the service of permitting
him to exercise his prdPesskm:: a service which, if
there has been no prohibition laid on befoce, is
rendered by simply forbearing to prohibit him.

Now the ideal objects, wU^ in the cases aibove
specified are said to be conferred upon a man by
the services that are respectively in question, are
in both cases not articles of property but condi-
tions. By such a behaviour on the part of the
law, as shall be the reverse of that whereby they
were respectively produced, a man m,ay be made
to forfeit them : and what he is then said to forfeit

minSICMff OF OFVSKCBS.

is m Bekher case his property ; but in one cflse^
his rank or dignity : in the other case^ his trade
or his pvofession: and in both caisi6S> his condition.
Other cases there zxt again in which the law^
by a process of tiie same sort with that by winch
it constituted the former of the two above-men-
tioned conditions^ confers on him an ideal object^
which the laws of language hay€ placed under
the head of property. The law permits a man to
sell books : that is, all sorts of books in general.
Thus fur all tiiat it has done is to invest him witibi
a. condition : and this con(Stion' he would equally
possess, although every body else in the world
were to sell books likewise. Let the law now
take an active part in bis fayour> and prohibit all
other persons from selling books of a certain • de-
scription^ he remaining at liberty to sell them as
before. It diereby confers oi» him a sort of
exclusive privilege or monopoly, which is called
a ca^^ght. But by investing him with this right,
it is not said to-invesrt him with any new sort of
eoBidition ; and what it invests him with is spoken
of as {HH article of property ; to wit, of that sort
of property which is termed inccnporeal ♦ : and so

• 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.

208

DIVISION OF OFFENCES

^"vT** ^^ ^^ *^^ ^^® ^^ *^ engraving, a mechanical en-
gine, a medicine; or, in short, of a saleable article
of any other sort. Yet when it gave him an exclu-
sive right of wearing a particular sort of ribbon,
the object which it was then considered as confer-
ring on him was not an article of property but a
condition.

• By forbearing to subject yoii to certain disad-
vantages, to which it subjects an alien, the law
confers on you the condition of a natural-born
subject: by subjecting him to them, it* imposes
on him the condition of an alien : by conferring on
you certain privileges or rights, which it denies to
a, fviurier, the law confers on you the condition of
2L gentilhomme ,; by forbearing to confer on him
those privileges, it imposes on him the condition
of a roturkr *. The rights, out of which the two
advantageous conditions here exemplified are both
of thei](i as it were composed, have for their coun-
terpart a sort of services of forbearance, rendered,
as we have seen, not by private individuals, but
by the law itself. As to the duties which it creates
in rendering you these services, they are to be
considered as duties imposed by the legislator on
tlie ministers of justice.

* The conditions themselves having nothing that corres-
ponds to them in England, it was necessary to make use of
foreign terms.

DIVISION OF OFFENCES. 20D,

It may be observed, with regard to the greater Chap.
part of the conditions here comprised under the
general appellation of cwil, that the relations cor-
responding to those by which they are respectively
constituted, are not provided with appellatives.
The relation which has a name, is that which is
borne by the party favoured to the party bound :
that which is borne by the party bound to the
party favoured has not any. This is a circum-
stance that may help to distinguish them from
those conditions which we have termed domestic.
In the domestic conditions, if on the one side the
party to whom the power is given is called a
master ; on the other side, the party aoer whom
that power is given, the party who is the object
of that power, is termed a servant. In the civil
conditions this is not the case. On the one side,
a n^an, in virtue of certain services of forbearance,
which the rest of the community are bound to
render him, is denominated a knight of such or
such an order : but on the other side, these ser-
vices do not bestow any particular denomination
on the persons from whom such services are due.
Another man, in virtue of the legislator's rendering
that sort of negative service which consists in the
not prohibiting him from exercising a trade, in-
vests him at his option with the condition of a
trader : it accordingly denominates him a farmer,
a baker, a weaver^ and so on : but the ministers
of the law do not, in virtue of their rendering th^

VOL* II. p

<1^ DIVISION OF OFFENCES.

^^F- man thi^ sort of negative service, acquire for
^ — V — ' themselves any particular name. Suppose even
that the trade you have the right of exercising
happens to be the object of a monopoly, and that
the legislator, besides rendering you himself those
services which you derive from the permission he
bestows on yoli, obliges other persons to render
ydu those farther services which you receive from
their forbearing to follow the same trade ; yet
neither do they, in virtue of their being thus
bound, accjuire any particular name.

After what has been said of the nature of the
several sorts of civil conditions that have names,
the offences to which they are exposed may, with-
out much difficulty, be imagined. Taken by itself,
every condition which is thus constituted by a per-
mission granted to the possessor, is of course of a
beneficial nature : it is, therfefore, exposed to all
those offences to which the possession of a benefit
is exposed. But either on account of a man's
being obliged to persevere when once engaged in
it, or on account of such other obligations as may
stand annexed to the possession of it, or on ac-
count of the comparative degree of disrepute
which may stand annexed" to it by the moral
sanction, it may by accident be a burthen: it is
on this account liable to stand exposed to tlie
oflfences to whrch, as hath been seen, ev^y thing
that partakes of the nature of a burthen stands
exposed. As to any offences which may concent

mVISION OF QF9BNCES. ^1^

■

the wercifle cdP ^e faiictions belon^g to it^ if it
haippens to have. any duties anineked to it^ such as
those^ for instance^ whidi are constituted by regu-
lations touching the exercise of a trade, it will
stand exposed to so many breaches of duty ; and
lastly, whatsoever are the functions belonging to
it, it will stand exposed at any rate to disturb"
once.

In the forming however of the catalogue of
the^e offences, exactness is of the less consequence,
inasmuch as an act, if it should happen not to be
comprised in this catalogue^ and yet is in ai^y
respect of a pernicious nature, will be sure to be
found in some other division of the syst;em of
offences : if a b^ker sells bad bread for the price
of good, it is a kind of fraud upon the buyer ;
and perhaps an injury of the simple corporal kind
done to the health of an individual, or a neigh-
bourhood : if a clothier sells bad cloth for good
at home^ it is a fraud ; if to foreigners abroad^ it
may, over and above the fraud put upon the
foreign purchaser, have pernicious effects perhaps
in the prosperity of the trade at hom^, and be-
come thereby an offence against the national
wealth. So again with regard to disturbance:
if a man be disturbed in the exercise of his trade^
the offence wjill probably be a wrongful ifit^rcefh
thn of the pr^ he might be presumed to have
been in a way to make by it : and were it even J;q
appear in any case that a man exercised a t^^ade^

^1^ DIVISION OF OFFENCES.

— r

xVr ®^ ^^** ^® ^'^^ unlikely, a liberal profession, with-
out having profit in his view, the o£fence will still
be reducible to the head of ^mp/e injurious re-
sirainment, or simpk injurious compulsion.

§ 4. Advantages of the present method.

General
idea of the

LVI. ^

A few words, for the purpose of giving a general
method here yjg^ ^f ^j^g method of division here pursued, and

panned. ^

of the advantages which it possesses, may have
their use. The whole system of oflPences, we may
observe, is branched out into five classes. In the
three first, the subordinate divisions are taken
from the same source ; viz. from the consideration
of the different points, in respect whereof the in-
terest of an individual is exposed to suffer. By
this uniformity, a considerable degree of light
seems to be thrown upon the whole system ; par-
ticularly upon the offences that come under the
third class: objects which have never hitherto
been brought into any sort of order. With regard
to the fourth class, in settling the precedence be-
tween its several subordinate divisions, it seemed
most natural and satisfactory to place those first,
the connection whereof with the welfare of indivi-
duals seemed most obvious and immediate^ The
mischievous effects of those o£fences, which tend
in an immediate way to deprive individuals of the
protection provided for them against the attacks
of one another, and of those which tend to bring

DIVISION OF OFFENCES. ^^^

XVI,

down upon them the attacks of foreign assailants^ ^^
seem alike obvious and palpable. The mischievous
quality of such as tend to weaken the force that
is provided to combat those attacks^ but particu-
larly the latter, though evident enough, is one link
farther o£Pin the chain of causes and e£Pects. The
ill effects of such offences as are of disservice only
by diminishing the particular fund from whence
that force is to be extracted, such effects, I say^
though indisputable, are still more distant and out
of sight; The same thing may be observed with
regard to such as are mischievous only by affect-
ing the universal fund. Offences against the
sovereignty in general would not be mischievous,
if offences of the several descriptions preceding
were not mischievous. Nor in a temporal view
are offences against religion mischievous, except
in as far as, by removing, or weakening, or ntiisap-
plying one of the three great incentives to virtue,
and checks to vice, they tend to open the door to
the several mischiefs, which it is the nature of all
those other offences to produce. As to the fifth
class, this, as hath already been observed, exhibits,
at first view, an irregularity, which however seems
to be unavoidable. But this irregularity is pre-
sently corrected, when the analysis returns back,
as it does after a step or two, into the path from
which the tyranny of language had forced it a
while to deviate.

It was necessary that it should have two pur-

314

DIVISION OF OFFENCES.

^VL P^®* ^^ ^^^ • *^^ ^^^* ^^ exhibit, upon a scale
more or less minute, a systematical Enumeration
6£ the several possible modificiitions of delin^en*
cy, denominated or undenominated ; the other, to
find places in the list for st^eh names of ofifences
as were in current use: for the firi^ purpiose>
nature was to set the law ; for the other, custom.
Had the nature c>f ihe thingi^ themselves been the
only guide, every such difference iii th^ idtsilineir of
perpetration, and such only, should havfe served as
a ground for a different denomination, as was at-
tended with a difference in point of efifetft. This
however of itself would never have been su£S-
cient ; for as oh one hand the new language^ which
it would have been necessary to invent, would have
been uncouth, ahd in a manner unintelligiUe : so
on the other hand the names, which were before in
ctirrent iise, iiid which, ih spite of all systems,
good or bad, must have Remained ih curr^it use.
Would have continued unexplained. To have ad-
hered (exclusively to the current language. Would
have been as bad on the other sidl3 ; fi>r iti that
case the catalogue of bffetieesi whfen cotaopiii^ed to
that of the mischiefs that are capably of bi^g
produced, would have been altogether brftft^^n and
uncomplete.

To reconcile these two objects, in as far as they
seemed to be reconcileable, the following course
has therefore been pursued: The logical whofe,
constituted by the sum total of {possible ofiences.

DIVISION OF OFFENCES.

tlB

has been bisected in as many different directions ^■^'•

as were necessary^ and the process in each direc-
tion carried down to that stage at wliich the par-
ticular ideas thus divided found names in current
use in readiness to receive them. At that period
I have stopped ; leaving any minuter distinctions
to be enumerated in the body of the w6rk> as so
many species of the genus characterized by such
or such a name. If in the course of any such
process I came to a mode of conduct which, though
it required to be taken notice of, and perhaps had
actually been taken' notice of, uiider all laws, in
the character of an offence, had hitiiertb been ex-
pressed under different laws, by different circum-
locutions, without ever having received any name
capable of occupying the place of a substantive in
a sentence. X have frequently ventured so far as
to fabricate a new naiqie for it, such all one as the
idiom of the language, and the acquaintance I
happened to have with it^ would admit of. These
names consisting in most instances, and that un-
avoidably, of two or three words brought toge-
ther, in a language too which admits not, like the
German and the Greek, of their being melted into
one, can never be upon a par, in point of commo-
diousness, with thpse univocal appellatives which
make part of the established stock.

In the choice of nanies in current use, care has
been taken to avoid all such as have been grounded
on local distinctions, ill founded, perhaps, in the

XVI.

^^^ DIVISION OF OFFENCES.

nation in which they received their births and at
any rate not applicable to the circumstances of
other countries.

The analysis^ as far as it goes^ is as applicable to
the legal concerns of one country as of anbther :
and where^ if it had descended into further details^
it would have ceased to be so^ there I have taken
care always to stop : and thence it is, that it has
come to be so much more particular in the <;lass
of offences against individuals^ than in any of the
other classes. One use then of this arrangement,
if it should be found to tiave been properly con-
ducted, will be its serving to point out in what it
is that the legal interests of all countries agree,
and in what it is that they are liable to differ : how
far a rule that is proper for one, will serve, and
how far it will not serve, for another. That the
legal interests of Cerent ages and countries have
nothing in common, and they have every thing,
are suppositions equally distant from the truth*.

LVII.

Its advan- A natural method, such as it hath been here

tag^a.

—1. It is attempted to exhibit, seems to possess four capital

convenient . , ■■■

foi the ap. advantages ; not to mention others of inferior

* The above hints are offered to the consideration of the
few who may be disposed to bend their minds to disquisi-.
tions of this uninviting nature: to sift the matter to the
bottom, and engage in the details of illustration, would re-
quire more room than could in this place be consistently
allowed.

- DIVISION OF OFFENCES. 217

note. . In the first place^ it affords such assistance ^"^f.
to the apprehension and to the memory, as those ' .v. '

i X J ' prehension

faculties would in vain look for in any technical "»<* **»« ™^
arrangement ^. That arrangement of the objects
of any science may, it should seem, be termed a ^
natural one, which takes: such properties to charac-
terize them by, as men in general are, by the com-
mon constitution of man's nature, independently
of any accidental impressions they may have re-
ceived from the influence of any Jocal or other
particular causes, accustomed to attend to : such,
in a word, as naturally y that is readily, and at first
sight, engage, and firmly fix, the attention of any
one to whom they have once been pointed out.
Now by what other means should an object en-
gage, or fix a man's attention, unless by interesting
him ? and «what circumstance belonging to any
action can be more interesting, or rather what other
circumstance belonging to it can be at all interest-
ing to him, than that of the influence it promises
to have on his own happiness, and the happiness
of those who are about him ? By what other
mark then should he more easily find the place
which any offence occupies in the system, or by
what other clue should he more readily recall it ?

LVIII.

In the next place, it not only gives at first glance —2. it gives
a general intimation of the nature of each division nerai pro-

positions.

• Sec Fragment on Government, pref. p. xlv. edit. 1776. —
pref. p. xlvii. edit. 18^3.

8W m VISION OF OFFENCES*.

which has escaped him ?' in a natural arrange-
ment^ if at the same time an exhaustive one^ he
cannot fail tb find it. Is he tempted ever to
force innocence within the pale of guilt? the
difficulty of finding a place for it advertises him
of his error. Such are the uses of a map of
universal delinquency, laid down u^on the prin-
ciple of utility : such the advantages, which the
legislator as well as the subject may derive from
it. Abide by it, and every thing that is arbitrary
in legislation, vanishes. An evil-intentioned or
prejudiced legislator durst not look it in the face.
He would proscribe it, and with reason : it would
be a satire on his laws.

LX.

«iae!i*"ii. ^^ '^^ fourth place, a natural arrangement^
^We to the governed as it is by a principle which is recog-
nations. nized by ajl men, will serve alike for the juris-
prudence of all nations. In a system of proposed
law, framed in pursuance of such a method, the
language will serve as a glossary by which all
systems of positive law might be explained, while
the matter serves as a standard by which they
might be tried. Thus illustrated, the practice of
every nation might be a lesson to every other :
and mankind might carry on a mutual inter-
change of experiences and improvements as easily
in this as in every other walk of science. If any
one of these objects should in any degree be

DIVISION OF OFFENCES. ^i

attained^ the labour of this analysis^ severe as it ^xvu
has been> will not have been thrown away.

§5. Characters of the jftve classes.

LXI.

It has been mentioned as an advantage pos- characters
sessed -by this method^ and not possessed by any ciassw, how
other, that the , objects comprized under it are from The*
cast into groupes, to which a variety of proposi- ^® "®"
tions may be applied in common. A collection
of these propositions^ as applied to the several
classes, may be considered as exhibiting the dis-
tinctive characters of each class. So many of
these propositions as can be applied to the of-
fences belonging to any given class, so many
properties are they found to have in common : so
many of these common properties as may respec-
tively be attribi^ted to them, so many properties
may be set down to serve as characters of the
class. A collection of these characters it may
here be proper to exhibit. The more of ihem
we can bring together, the more clearly and fully
will the nature of the several classes, and of the
offences they are composed of, be understood.

LXII.

Characters of Class 1 ; composed of private of- Character*

. ... ofClaMl.

fences, or offences against assignable mdvviduals.
1 . When arrived at their last stage (the stage

^9 DIVISION W OFFJ&fi^OES.

^'* of Comummatim ♦) they produce, idl pf them, a
primary mischief as well bb a secondary f.

2. The indivduals whom they affect in the first
instance %, are constantly assignable. This extends
to all ; to attends and preparations y as well as to
such as have arrived at the stage of consumma-
tion §.

3. Consequently they admit of compensation \\:
in which they differ from the offences of all the
other classes, as such.

4. They admit ^ also of retaliation** ; in which
also they differ from the oJBPences of all the other
classes.

5. There is always some person who has a
natural and peculiar interest to prosecute them.
In this they differ from self-regarding offences :
also from semi-public and public ones ; except in
as far as the two latter may chance to involve a
private mischief.

♦ Ch. vii. [Actions] xiv.

t See ch. zii. [Consequences] iii.

t [First Instance.] That is, by their primary mischief.

§ See supra, and B. I. tit. [Accessory offences.]

II See ch. xiii. [Cases unmeet] ii. note.

IF [Admit.] I mean, that retaliation is capdlile of being'
applied in the cases in question ; not that it ought always to
be employed. Nor is it capable of being a[^lied Mn every
individual instance of each offence, but only ia some indi-
vidual instance of each species of offence.

** See ch. xv^Properties] viti.

DIVISION OF OPFBNCBS. ^^^

6. Th6 mictchief they produce is obvious : more
so than that of semi-public o£fences : and stiH
more so than Ihat of self-^regarding ones, or even
public.

7. They are every where. Mid must ever be,
obnoxious to the censure of the world : more so
than semi-public offences as such ; and still more
so than public ones.

8. They are mqre comtantly obnoxious to the
censure of the world than self-regarding o£fences:
Mid would be so universally, were it not for the
influence of the two false prmciples; the principle
of asceticism, and the principle of antipathy *•

Q. They are less apt than semi-public and
public offences to require different descriptions f
in different states and countries : in which respect
they are much upon a par with self-regarding
ones.

10. By certain circumstances of aggravation,
they are liable to be transformed into semi-public
offences : and by certain others, into public.

11. There can be no ground for punishing
them, until they can be proved to have occa^

, * Ch. ii. [Principles adverse.]

t [Different descriptions.] It seems to be from their pos-
sessing 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 expres-
sion, and productive of a multitude of inconveniences. See
ch. n. [Principles adverse.]

2*4 DIVISION OF OFFENCES.

v*vr'' sioned, or to be about to occasion, some particular
^' V * mischief to some particular individual* In "this
they differ from semi-public offences, and from
public.

] 2* In slight cases, compensation given to the
individual affected by them, may be a sufficient
ground for remitting punishment : for if the
primary mischief has not been sufficient to pro-
duce any alartn, the whole of the mischief may
be cured by compensation. In this also they
differ from semi-public offences, and from public
ones.

LXIII.

Characters Characters of Class 2 ; composed of semi-public
offences, or offences affecting a whole subordi-
nate clem of persons.

1 . As such, they produce no primary mischief.
The mischief they produce consists of one or
other or both branches of the secondary mischief
produced by offences against individuals, without
the primary.

2. In as far as they are to be considered as
belonging to this class, the persons whom they
affect in the first instance are not individually
assignable.

3. They are apt, however, to involve or termi-
nate in some primary mischief of the first order,
which when they do, they advance into the first
class, and become private offences.

4. They admit not, as such, of compensation.

DIVISION OF OFFENCES. ^5

5. Nor of retaliation. Ckap.

XVI.

6. As such^ there is never any one particular
individual whose exclusive interest it is to prose-
cute them: a circle of persons may, however,
always be . marked out, within which may be
found some who have a greater interest to prose-
cute than any who are out of that circle have.

7. The mischief they produce is in general
pretty obvious.; not so much so indeed as that of
private offences, but more so upon the whole than
that of self-regarding and public ones.

8. They are rather less obnoxious to the cen-
sure of the world than private offences ; but they
are more so than public ones : they would also
be more so ' than self-regarding ones, were it not
for the influence of the two false principles, the
principle of sympathy and antipathy, and that of
asceticism.

9. They are more apt than private and self-re-
garding dffences to require different descriptions
in different countries : but less so than public
ones.

1 0. There may be ground for punishing them
before they have been proved to have occasipned,
or to be about to occasion, mischief to any parti-
cular individual; which is not the case with
private offences.

11. In no cases can satisfaction given to any
particular individual, affected by them be a suffi-
cient ground for remitting punishment : for by

VOL. II. Q

2«6 DIVISION or OFFENCES.

Cbaf. such satisfaction it is but a part of the mischief
wi^ of them that is cured. In this they difer from
private offences ; but agree with public.

LXIV.

of^^s Characters of Class 3 ; consisting of self-regard-
ing offences : offences against one^s self.

1. In individual instances it will often be ques^
tionable^ whether th^ are productive of any
primary* mischief at all: secondary, they produce
none.

2. They affect not any other individuals, as-
signable or not assignable, except in as far as
they aflfect the offender himself; unless by possi-
bility in particular cases ; and in a very slight and
distant manner the. whole state.

3. They admit not, therefore, of condensation.

4. Nor of retaliation.

5. No person has naturally any peculiar int&*
rest to prosecute them; except in as far as in
virtue of some connection he may have with the
offender, either in point of sympathy or of interest^,
a mischief of the derivative kind J may happen to
devolve upon him §.

* Because the persop, who in general is moat likely to be
sensible to the mischief (if there is any) of any offence^ viz*
the person whom it most affects, shews by his conduct that
he is not sensible of it.

t See ch. vi. [SensibilityJ xxv. xxvi.

X See ch. xii. [Consequences] iv.

§ Among the offences, however, which belong to this

DIVISION OF OFFENCES. ^^

6. The mischief they produce is apt to be un- ^^j*-
obvious, and in general more questionable than
that 6i any of the other classes*.

7. They are however apt, many of them, to be
more obnoxious to the censure of the world than
public offences ; owing to the influence pf the two
false principles ; the principle of asceticism, and
the principle of antipathy. Some of them more
even than semi-public, or even than private of-
fences.

8. They are less apt than offences of any other
class to require different descriptions in different
states and countries f.

9- Among the inducements J to punish them,
antipathy against the offender is apt to have a
greater share than sympathy for the public.

1 0. The best plea for punishing them is fo^unded
on a faint probability there may be of their being

clasSy 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 an-
tipathy, which such acts are apt to excite. See ch. ii. [Prin-
ciples adverse] zi,

• See note* in the preceding page.

t Accordingly, most of them are apt to be ranked among
offences against the law of nature.- Vide supra, Characters
of the 1st class, Ixii. note.

X [Inducements.] I mean the considerations, right or
wrong, which induce or dispose the legislator to treat them
on the footing of offences.

^8 DIVISION OF OFFENCES.

productive of a mischief, which, if real, will place
them in the class of public ones : chiefly in those
divisions of it which are composed of offences
against population, and offences against the na-
tional wealth.

LXV.

of^ciaslT Characters of Class 4 ; consisting of public of-
fences, or offences against the itate in general.
' 1 . As such, they produce not any primary mis-
chief ; and the secondary mischief they produce,
which consists frequently of danger without
alarm, though great in value, is in specie very
' • indeterminate.

2. The individuals whom they affect, in the
first instance, are constantly unassignable ; except
in as far as by accident they happen to involve or
terminate in such or such offences against indi-
viduals.

3. Consequently they admit not of compensa-
tion.

4. Nor of retaliation.

5. Nor is there any person who lias naturally
any particular interest to prosecute them ; except
in as far as they appear to affect the power, or in

, any other manner the private interest, of some
person in authority.

6. The mischief they produce, as such, is com-
paratively unobvious ; much more so than that of
private offences, and more so likewise, than that
of semi-public ones.

DIVISION OF OFFENCES.' S«0

7- They are, as such, much less obnoxious to
the censure of the world, than private oflPences;
less even than semi-public, or even than self-
regarding offences ; unless in particular cases,
through sympathy to certain persons in au-
thority, whose private interests they may appear
to afiect.

8. They are more apt than any of the other
classes to admit of different descriptions, in dif-
ferent states and countries.

9. They are constituted, in many cases, by
some circumstances of aggravation superadded to
a private offence : and therefore, un these cases,
involve the mischief, and exhibit the other cha-
racter$ belonging to both classes. They are,
however, even in such cases, properly enough
ranked in the 4th class, inasmuch as the mischief
they produce in virtue of the properties which
aggregate them to that class, eclipses and
swallows up that which they produce in virtue
of those properties which aggregate them to
the 1st.

10. There may be sufficient ground for pu-
nishing them, without their being proved to have
occasioned, or to be about to occasion, any par-
ticular mischief to any particular individual. In
this they differ from private offences, but agree
with semi-public ones. Here, as in semi-public
offences, the ea^tent of the mischief makes up for^
the uncertainty of it.

«3Q DIVISION OF OFFENCES,

11. In no case can satisfaction^ given to any
particular individual affected by them; be a sufiS-
cient ground for remitting punishment. In this
they differ from private offences ; but agree with
semi-public.

LXVI.

Cbamctcrs Characters of Class 5, or appendix : composed of

of Class 5. /¥• 1

MULTIFORM or ANOMAjiOUS offeuccs ; and con-
taining offences by falsehood^ and offences
concerning trust.

1. Taken collectively, in the parcels marked
^ out by their popular appellations, they are inca-
pable of being' aggregated to any systematical
method of distribution, groimded upon the mis-
chief of the offence.

2. They may, however, be thrown into sub-
divisions, which may be aggregated to such a
method of distribution.

3. These sub-divisions will naturally and rea-
dily rank under the divisions of the several pre-
ceding classes of this system.

4. Each of the two great divisions of this class
spreads itself in that manner over all the pre-
ceding classes.

5. In ^ome acts of this class, the distinguishing
circumstance which constitutes the essential cha-
racter of the offence, will in some instances enter
necessarily, in the character of a criminative
circumstance, into the constitution of the offence ;
insomuch that, without the intervention of this

■iikf

DIVISION OF OFFENCES.

931

circumstance^ no offence at all, of that denomina- ^"Ar- '
tion, can be committed*. In other instances, the
offence ;may subsist without it; and where it
interferes, it comes in as an accidental inde-
pendent circumstance, capable of constituting a
ground of aggravation f.

Instance, offences by falsehood^ in the case of defraud-

ment.

t Instance, offences by falsehood, in the case of simple
corporal injuries, and other offences against person.

[ 232 ]

CHAP. XVII.

§ I. LIMITS BETWEEN PRIVATE ETHICS AND THE ART OF

LEGISLATION.

Use of this So Hiuch for the division of offences in general.

chapter. , , ,

Now an offence is an act prohibited, or (what
comes to the same thing) an act of which the
contrary is commanded by the law : and what is
it that the law can be employed in doing, besides
prohibiting and commanding? It should seem then,
according to this view of the matter, that were
we to have settled what may be proper to, be done
with relation to offences, we should thereby have
settled every thing that may be proper to be done
in the way of law. Yet that branch which cwi-
cerns the method of deaUng with offences, and
which is termed sometimes the criminal, sonietimes
the penal, branch, is universally understood to be
but one out of two branches which compose the
whole subject of the art of legislation; that which
is tertned the civil being the other*. Between

* 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.

OP THE LIMIt|s of THE, &c. «^

these two branches then, it is evident enoughs Chap.
there cannot but be a very intimate^onnection ;
so inltimate is it indeed, that the limits between
Aem .re .,, no mean, easy U> mark on.. Tie
case is the same in some degree between the whole
business of legislation (civil and penal branches
taken together) and that of private ethics. Of
these several limits however it will be in a manner
necessary to iexhibit some idea: lest, on the one
hand, we should seem to leave any part of the
subject that does belong to us untouched, or, on
the other hand, to deviate on any side into a
track which does not belong to us.

In the course of this enquiry, that part of it I
mean which concerns the limits between the civil
and the penal branch of law, it will be necessary
to settle a number of points, of which the con-
nection with the main question might not at first
sight be suspected. To ascertain what sort of a
thing a law is ; what the parXs are that are to be
found in it ; what it must contain in order to be
complete; what the connection is between that part
of a body of laws which belongs to the subject of

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
ie^thed 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.

SS4 OF THE LIMITS OF Tl^

c«^'- procedure; and the rest of the law at large : — ^All
^— "V — ' these, it will be seen, are so many problems, whicn
must be solved before any satisfactory answer can
be given to the main question above mentioned*

Nor is this their Qnly use: for it is evident
enough, that the notion of a complete law must
first be fixed, before the legislator can in any case
know what it is he has to do, or when his work is
done.

II.
Ethics in ge- Ethics at large may be defined, the art of
directing men's actions to the production of the
greatest possible quantity of happiness, on the
part of those whose interest is in view.

III.

Private .What then are the actions which it can be in a

man's power to direct? They must be either his
own actions, or those of other agents. Ethics, in
as far as it is the art of directing a man's own
actions, may be stiled the art of self-gaoernment,
or private ethics.

IV.

The art of What Other agents then are there, which, at

thaTIT^" the same time that they are under the influence

and ad^ki- of mau's dircctiou, are susceptible of happiness ?

•tration. They are of two sorts: 1. Other human beings

who are stiled persons. 2. Other animals, which

on account of their interests having been neglected

by the insensibility of the ancient jurists, stand

PENAL BBANGH OF JURISPRUDENCE. ^^

degraded into the class of things*. As to other ^^•
human beings^ the art of directing their actions

* Under the Gentoo and Mahometan religions, the inte- interests of
rests of the rest of the animinal creation seem to have met J^J-^^"^.
with some attention. Why have they not, universally, with properly
as much as those of human creatures, allowance made for the legisiatkHi.
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 anticipa-
tions of future misery which we have. The death they
sufibr 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 no^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 jnay come, when the rest of the ai^imal crea-
tion may acquire those rights which never could have been
witholden 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

3M OF THE LIMITS OF THE

Chap, to the above end is what we mean, or at least the
^"-•v-^ only thing which> upon the principle of utility,
we ought to mean, by the art of government:
which, in as far as the measures it displays itself
in are of a permanent nature, is generally dis-
tinguished by the name of legislation: as it is by
that of administration y when they are of a temporary
nature, determined by the occurrences of the day.

Art of edo- Now humau creatures, considered with respect
to the maturity of their faculties, are either m an
adult y or in a non-adult state. The art of gover-
ment, in as far as it concerns the direction of the
actions of persons in a non-adult state, may be
termed the art of education. In as far as this
business is entrusted with those who, in virtue of
some private relationship, are in the main the best

without redress to the caprice of a tormentor* It may come
one day to be recognized, that the number of the legs, the
Tillosity of the skin, or the terminatipn of the os sacrum^
are reasons equally insufficient for at)andoning 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 con-
versible 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 reasmi ? nor, .
Can they talk ? but, Can they suffer ?

♦ See Lcwi« XlVthie Code Noir.

PENAL BRANCH OF JURISPRUDENCE. ^W

disposed to take upon them^ and the best able to ^^^['
discharge^ this office, it may be termed the art of ' — ^^*^
private education : in as far as it is exercised by
those whose province it is to superintend the con-
duct of the whole community, it may be termed
the art of public education,

VI.

As to ethics in general, a man's happiness will Ethics cxW-
depend, in the first, place, upon such parts of his ©f, i. Pro-
behaviour as none but himself are interested in ; ^rprobity.
in the next place, upon such parts of it as may cince"*
affect the happiness of those about him. In as far
as his happiness depends upon the first-mentioned
part of his behaviour, it is said to depend upon
his duty to himself* Ethics then, in as far as it is
the art of directing a man's actions in this respect,
may be termed the art of discharging one's duty
to one's self: and the quality which a man ma-
nifests by the discharge of this branch of duty
(if duty it is to be called) is that of prudence. In
as far as his happiness, and that of any other
person or persons whose interests are considered,
depends upon such parts of his behaviour as may
aflPect the interests of those about him, it may be
said to depend upon his duty to others; or, to use
a phrase now somewhat antiquated, his duly to his
neighbour. Ethics then, in as far as it is the art
of directing a man's actions in this respect, may
be termed the art of discharging one's duty to
one's neighbour.. Now the happiness of one^s

S88 OP THE LIMITS OP THE

Chaf. neighbour may be consulted in two ways: 1. In a
"■ V ' ^ negative way, by forbeariiig to diminish it. 2. In
a positive way, by studying to encrease it* A
man's duty to his neighbour is accordingly partly
negative and partly positive: to discharge the
negative branch of it, is probity : to discharge the
positive branch, beneficence.

VII.

PraUty and It may here be asked. How it is that upon the

beneficence' m • •* a •. ji» i*ij.* j !••_-.

how they pnuciplc 01 pnvatc ethics, legislation and religion
prodencT*** ^^t of the qucstiou, a man's happiness depends
upon such parts of his conduct as affect, immedi-
ately at least, the happiness of no one but himself:
this is as much as tp ask. What motives (inde-
pendent of such as legislation and religion may
chance to furnish) can one man have to consult the
happiness of another ? by what motives, or, which
comes to the same thing, by what obligations, can
he be bound to obey the dictates of probity and
beneficence? In answer to this, it cannot but be
admitted, that the only interests which a man at
all times and upon all occasions is ^ure to find
adequate motives for consulting, are his own. Not-
withstanding this, there Are no occasions in which
a man has not some motives for consulting the
happiness of other men. In the first place> he
has, on all occasions, the purely social motive of
sympathy or benevolence: in the next place, he
has, on most occasions, the semi-social motives of
love of amity and love of reputation. The motive

PENAL BRANCH OF JURISPRUDENCE. ^59

of sympathy will ax^t upon him with more or less Cbaf.
effect, according to the ^m of his sensibility*: '' ' v ^
the two other motives, according to a variety of
circumstances, principally according to the strength
of his intellectual powers, the firmness and steadi-
ness of his mind, the quantum of his moral sensi-
bility, and the characters of the^ people he has to
deal with.

VIII.

Now private ethics has happiness for its end : ^Tf 7 y^

f •■■•'■ which IS a

and lefrislation can have no other. Private ethics p'?p«' ,

" object of

concerns every member, that is, the happiness and ct*»w» is not

, ^ -^ of legisla-

the actions of every member of any community tfon.
that can be proposed ; and legislation can concern
no more. Thus far, then, private ethics and the
art of legislation go hand ia hand. The end they
have, or ought to have, in view, is of the same
nature. The persons whose happiness they ought
to have in view, as also the persons whose conduct
they ought to be occupied in directing, are pre-
cisely the same. The very acts they ought to be
conversant about, are even in a great measure the
same. Where then lies the difference? In that
the acts which they ought to be conversant about,
though in a great measure, are not perfectly and
throughout the same. There is no case in which
a private man ought not to direct his own conduct
to the production of his own happiness, and of

* Ch. vi. [Sensibility] iii.

940 OF THE LIMITS OF THE

Chip, that of his fellow-^eatures : ^ut there are cases

XVII.

' — >r^ in which the legislator ought not (in a direct way
at least, and hy means of punishment applied im-
mediately to particular individual acts) to attempt
to direct the conduct of the several other members
of the community. Every act which ^prombes to
be beneficial upon the whole to the community
(himself included) each individual ought to per-
form of himself: but it is not every such act that
the legislator ought to compel him to perform.
Every act which promises to be pernicious upon
the whole to the community (himself included)
each individual ought to abstain &om of himself:
but it is not every such act that the legislator
ought to compel him to abstain from.

IX.

The Umito Where then is the line to be drawn?— We shall

between the

promoes of not havc far to seek for it. The business is to
etiucsand givc au idea of the cases in which ethics ought,
mar^out and in which legislation ought not (in a direct
unme^t^^' manner at least) to interfere. If legislation inter-
puois mciit. ^jg^^g j^ ^ direct manner, it must be by punish-
ment*. Now the cases in which punishment,
meaning the punishment of the political sanction.

* I say nothing in this place of reward : because it is only

in a few extraordinary cases that u can be applied, and bc-

-jcau&e even where it is applied, it may be doubted perhaps

whether the application of it can, properly speaking, be

termed an act of legislation. See infra, §3.

PENAL BRANCH OF JURISPRUDi^NCE. ^41

ought not "to be inflicted, have been already stated .*. Cii a p.
If then there be any of these cases in which, al- ' — v — '
though legislation oiTght not, private ethics does
or ought to interfere, these cases will serve to
» point out the limits between the two arts or bran-
ches of science. These cases, it may be remem-
bered, are of four sorts: 1. Where punishment
would be groundless. 2. Where it would be
inefiicacious. 3. Where it would be unprofit-
able. 4. Where it would be needless. Let us
look over all these cases, and see whether in any
of them there is room for the interference of
private ethics, at the same time that there is none
for the direct interference of legislation.

1. First then, as to the cases where punishment i. Neither
would be groundless. .In these cases it is evident, py| wh^^'
that the restrictive interference of ethics would be ^^^^^1^
groundless too. It is because, upon the whole,

there is no evil in the act, that legislation ought
not to endeavour to prevent it. No more, for thie
same I'eason, ought private ethics.

XI.

2. As to the cases in which punishment would ^-.^^^ ^"

■■" pnvate

be inefficacious. These, we may observe, may be ethics can

, , , at)plyinthe

divided into two sets or classes. The first do not cases where

' . punishment

depend at alliipon the nature of the act: they would be,
turn only upon a defect in the timing of the

> < — «* ■ — —

* Ch. xiii. [Cases unmeet.]
VOL. II. R

**^ ^OF THE LIMITS OF THE

xvu' P^^^ishment. The punishment in question is no
more than what^ for any thing that appears^ ought
to hiive been applied to the act in question. It
oughts howeTer> to have been applied at a different
time ; viz. not till after it had been properly de-
nounced. These are the cases of an eaypost-facto
law ; of a judicial sentence beyond the law ; and
of a law not sufficiently promulgated. The acts
here in question then mighty for any thing that
appears^ come properly under the department
even of coercive legislation: of course do they
under that of private ethics. As to the other set
of cases^ in which punishment would be ineffica-
cious ; neither do these depend upon the nature
of the act^ that is^ of the sort of act: they turn
only upon some extraneous circumstances, with
which an act of any sort may chance to be
accompanied* These^ hdwever, are of such a
nature as not only to exclude the application of
legal puaislunent, but in general to leave little
room for the influence of private ethics. These
are the cases where the will could not be deterred
from any act, even by the extraordinary force of
artificial punishment: as in the cases of extreme
infancy, insanity, and perfect intoxication: of
course, therefore, it could not by such slender and
precarious force as cotdd be applied by private
ethics. The case is in this respect the same,
under the circumstances of unintentionality with
respect to the event of the action, unconscious-

5aBBW«ippW^iiP^Pi*P««»»"^^*i"*"^^^P^*^^"^"««""^^P'"~'-'''^^"iP"^W

PENAL BRANCH OP JU&ISPRUDENCE. 24S

ness witlr regard to the circumstances, arid mis- Chap.
stipposal with regard to the existence of circum- "^ — v — '
stanches which have not existed; ai^ also where
the force, even of extraordinary punishment, U
rendered inoperative by the superior force of a
physical danger or threatened mischief. It is
evident, that in these cases, if the thunders of
the law prove impotent, the whispers of simple
morality can have but little influence.

XII.

3. As to the cases where punishment would be How far,

. where it

unprofitable. These are the cases which constitute would be un-
the great field for the exclusive interference of
private ethics. When a punislmient is unprofita-
ble, or in other words too expeniSiVe, it is because
the evil of the punishment exceeds that of the
offence. Now the evil of the punishment, we may
remember*, is distinguishable into four branches:
1. The evil of coercion, including constraint or
restraint, according as the act commanded is of
the positive kind or the negative. 2. The evil of
apprehension. 3. The evil of sufferance.'' 4. The
derivative evils resulting to persons in connection
with those by whom the three abdve-metitioned
original evils are sustained. NoW with respect to
those original evils, the persons who lie exposed
to them may be two very different sets bf persons.
In the first place, persons who may have actually

* See ch. xiii. [Cases unmeet.] § iv.

"^ ■ ■ ^^P"— ^"l^w"^-^^ ■ w ■■— ■^^'^^1^'li^p^iWW^BBWBK

944

OF THE LIMITS OF THE

xvn' c^to™^**^* ^^ ^^^ prompted to commit^ the acts
' — v^ really meant. to be prohibited. In the next place^
persons who may have performed, or been prompt-
ed to perform, such other acts as they fear may
be in danger of being involved in the punishment
designed only for the former. But of these two
sets of acts, it is the former only that are perni-
cious: it is, therefore, the former only that it can
be the business of private ethics to endeavour to
prevent. The latter being by the supposition not
mischievous, to .prevent them is what it cdn no
more be the business of ethics to endeavour at,
than of legislation. It remains to shew how it
may' happen, that there should be acts really
pernicious, which, although they may very pro-
perly come under the censure of private ethics,
may yet be no fit objects for the legislator to
controul.

XIII.

WhicMt Punishment then, as applied to delinquency,
Aitboogh may be unprofitable in both or either of two

confined to . t^ »

the guiitj. ways : I. By the .expence it would amount to,
even supposing the application of it to be confined
altogether to delinquency: 2. By the danger
there niay be of its involving the innocent in the
fate designed only for the guilty. First then,
with regard to the cases in which the expence of
the punishment, as applied to the guilty, would
outweigh the profit to be made by it. These
cases, it is evident, depend upon a certain pro-

PENAL BRANCH OF JURISPRUDENCE.

245

portion between the evil of the punishment and Chap.
the evil of the offence. Now were the offence of
such a nature^ that a punishment which^ in point
of magnitude, should but just exceed the profit of
it, would be sufficient to prevent it, it might be
rather difficult perhaps to find an instance in
which such punishment would clearly appear to
be unprofitable. But the fact is, there are many
cases in which a punishment, in order to have any
chance of being efficacious, must, in point of
magnitude, be raised a great deal above that
level. Thus it is, wherever the danger of detec-
tion is, or, what comes to the same thing, is likely
to appear to be, so small, as to make the punish-
ment appear in a high degree uncertain. In this,
case it is necessary, as has been shewn*, if
punishment be at all applied, to raise it in point
of magnitude as much as it falls short in point of
certainty. It is evident, however, that all this
can be but guess-work: and that the effect of
such a proportion will be rendered precarious, by
a variety of circumstances : by the want of suffi-
cient promulgation on the part of the lawf :
by the particular circumstances of the tempta-
tion X • ^^^ l>y the circumstances influencing the

* Ch. xiv. [Proportion] xviii. Rule 7.
t Ch. xiii [Cases unmeet] § iii. Append, tit. [Promul-
gation.]
X Ch. xi. [Disposition] xxxv. &c.

246 OF THE LIMITS OF THE

Cbap. sensibility of the several individuals who are ex-
posed to it*. Let the seducing motives be strong,
the offence then will at any rate^ be frequently
committed. Now and then indeed, owing to a
coincidence of circumstances more or less extra-
ordinary, it will be detected, and by that ipeans
punished. But for the purpose of example,
which is the principal one, an act of puqishment,
considered in itself, is of no use : what use it c^eii
be of, depends altogether upon the expectation it
raises of similar punishment, in future cases of
similar delinquency. But this future punishmentjt.
it is evident, must {tlways depend upon detection.
If then the want of detection i^ such as must in
general (especially to eyes fascinated by the force
of the seducing motives) appear too improbable
to be. reckoned upon, the punishment, though it
should be inflicted, may come to be of no use.
Here then wUl be two opposite evils running on
at the same time, yet neither of them reducing
the quantum of the other : the evil of the disease
and the evil of the painful and ineffic^ious
remedy. It seems to be partly owing to sQme
such considerations, that fornication, for exampl^^
or the illicit commerce between the sexes, has
commonly either gone altogether unpunished, or
been punished in a degree inferior to that in

* Ch. Yi, [Sensibility,]

■■■*"

PENAL BRANCH OF JURISPRUDENCE. ' ^7

which^ on other accounts, legislators might have c«ap.
been disposed to punish it. ' — v — '

XIV.

Second, with regard to the cases in which «. By envc-
political punishment, as applied to delinquency, ionoceut.
may be unprofitable, in virtue of the danger there
may be of its involving the innocent in the fate
designed only for the guilty. Whence should
this danger then arise ? From the difficulty there
may be of fixing the idea of the guilty action :
that is, of subjecting it to such a definition as shall
be clear and precise enough to guard effectually
against misapplication. This difficulty may arise
from either of two sources : the one permanent, to
wit, the nature of the actions themselves: the
other occasional, I mean the qualities of the men
who may have to deal with those actions in the
way of government. In as far as it arises from
the latter of these sources, it may depend partly
upon the use which the l^islatar may be able to
make of language ; partly upon the use which,
according to the apprehension of the legislator,
the Judge may be disposed to make of it. As far
as legislation is concerned, it will depend upon
the degree of perfection to which the arts of lan-
guage may have been carried, in the first place,
in the nation in general ; in the next place, by the
legistatcr in particular. It is to a sense of this
difficulty as it should seem, that we may attribute
the caution with which most legislators have ab-

248 . OF THE LIMITS OF THE

Chap, stained from subjecting to censure, on the part of
— V — ' the law, such actions as come under the notion of
rudeness, for example, or treachery, or ingratitude.
The. attempt to bring acts of so vague and ques-
tionable a nature under the controul of law, will
argue either a very immature age, in which the
difficulties, which give birth to that danger are
not descried ; or a very enlightened age, in which
they. are overcome*.

XV.

i/5gbiation For the sake of obtaininir the clearer idea of

how far ne- ^ " ^ ^

cesaary for the liuiits betwecu the art of legislation and private

the enforce- , , . , • i i

ment of the cthics, it may now be time to call to imnd the
jmidetice. distinctions above established with regard to ethics
in, general. The degree in which private ethics
stands in need of the assistance of legislation, is
different in the three branches of duty above dis-
tinguished. Of the rules of moral duty, those
which ^eem to stand least in need of the assistance
of legislation, are the rules of prudence. It can

* In certain countries, in which the voice of the people has
a more especial controul orer the hand of the legislator,
nothing can exceed the dread which they are under of see-
ing any effectual provision made against the offences which
come under the head of defamatumy particularly that branch
of it which may be stiled 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.

PENAL BRANCH OF JURISPRUDENCE.

* See ch. ix. [Consciousnesg.]

t 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 methinks 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."

t Gh. xvi. [Division] Hi.

949

only be through some defect on the part of the ^^
understanding, if a man be ever deficient in point
of duty to himself. If he does wrong, there is
nothing else that it can be owing to but either
some inadvertence* or some missupposal *, with
regard to the. circumstances on which his hap-
piness depends. It is a standing topic of com-
plaint^ that a man knows too little of himself.
Be it so : but is it so certain that the legislator
must know more f J ? It is plain^ that of indivi-
duals the legislator can know nothing : concerning
those points of conduct which depend upon the
particular circumstances of each individual^ it is
plain, therefore, that he can determine nothing to
advantage. It is only with respect to those broad
lines of conduct in which all persons, or very large
and permanent descriptions of persons, may be in
a way to engage, that he can have- any pretence
for interfering ; and even here the propriety of his
interference will, in most instances, lie very open

(60 OF THE LIMITS OF THE

Chap, to dispute. At any rate, he must never expect to
produce a perfect compliance by the mere force
of the sanction of which he is himself the author.
All he can hope to do, is to encrease the efficacy
of private ethics, by giving strength and direc-
tion to the influence of the moral sanction. With
what chance of success, for example, would a
legislator go about to extirpate drunkenness;
and fornication, by dint of legal punishment?
Not all the tortures which ingenuity could invent
would compass it : and, before he had made a^y
progress worth regarding, such a mass of evil

would be produced by the punishment, as would
exceed, a thousand-fold, the utmost possible mis-
chief of the offence. The great difficulty would
be in the procuring evidence ; an object which
could not be attempted, with any probability of
success, without spreading dismay through every
family*, tearing the bonds of sympathy asunder f,
and rooting out the influence of all the social mo-
tives. All that he can do then, against offences of
this nature, with any prospect of advantage, in
the way of direct legislation, is to subject them,
in cases of notoriety, to a slight censure, so as
thereby to cover them with a slight shade of arti-
ficial disrepute.

* Ev^il of apprehension : third branch of the evil of a pu-
nishment. Ch. xiii. § iv.

t Derivative evils : fourth branch of the evil of a puaish^
ment. lb.

PENAL BRANCH OF JURISPRUDENCE. ^51

XVI. Chap.

XVII.

It may be observed, that with regard to this Jv^^ — '
branch of duty, legislators have, in general, been *«? ^^^^ J"
disposed to carry their interference full as far as
is expedient. The great difficulty here is, to per-^
suade them to confine themselves within bounds.
A thousand little passions and prejudices have led
them to narrow the liberty of the subject in this
line, in cases m which the punishment is either
attended with no profit at all, or with none that
wiU make up for the expence. ,

XVII.

The mischief of this sort of interference is more — Partico-
particularly conspicuous in the article of religion, ten of n^
The reasoning, in this case, is of the following"^'
stamp. There are certain errors, in matters of
belief, to which all inankind are prone : and for
these errors in judgment, it is the determination
of a Being of infinite benevolence, to' punish them
with an infinity of torments. But from these
errors the legislator himself is' necessarily free :
for the men, who happen to be at hand for him to
consult with, being men perfectly enlightened^
unfettered, and unbiassed, haye such advantages
over all the rest of the world, that when they sit
down to enquire out the . truth relative to points
so plain and so familiar as those in question, they,
cannot fail to find it. This being the case, when
the sovereign sees his people ready to plunge
headlong into an abyss of fire, shall he not stretch

352 OF THE LIMITS OF THE

Chap. Qut a hand to save them ? Such, for example,
seems to have been the train of reasoning, and
such the motives, which led Lewis the XlVth
into those coercive measures which he took for the
conversion of heretics, and the. confirmation of
true believers. The ground-work, pure sympathy
and loving-kindness : the superstructure, all the*
miseries which the. most /determined malevolence
could have devised*. But of this more fully in-
another place f .

* I do not mean but that other n^otives 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 reason-
ing, 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 upo(n as an accidental
' and inessential circumstance, not necessary to the produc-
tion 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 shews itself in the shape of a com-
mand : 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 fewel to the
flame. A kind of revenge exasperates the severities of coer-
cive policy.

t See.B. I, tit. [Self^regarding offences.]

PENAL BRANCH OF JURISPRUDENCE. «58

^^"^- ... xvir.

The rules oi probity are those, which inpointof 2;5v^

expediency stand most in need of assistance on ^J^|^
the part of the legislator, aiid in which, in P^^^^* [^^^^[^
of fact, his interference has heen most extensive, of probitj.
There are few cases in which it zveuld be expe-
dient to punish a man for hurting himself: but
there are few cases, if any, in which it would not
be expedient to punish a man for injuring his
neighbour. With regard to that branch of pro-
bity which is opposed to offences against property,
private ethics depends in a manner for its very
existence upon legislation. Legislation must first
determine what things are to be regarded as each
man's property, before the general rules of ethics,
on this head, can have any particular application.
The case is the same with regard to offences against
the state. Without legislation there would be no
such thing as a state : no particular persons in-
vested with powers to be exercised for the benefit
of the rest. It is plain, therefore, that in this
branch the interference of the legislator cannot
aiiy where be dispensed with. We must first
know what are the dictates of legislation, before
we can know what are the dictates of private
ethics *.

* But suppose the dictates of legislation are not what they
ought to he: 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.

S54

OF THE LIMITS OF THE

XIX.

As to the rules of beneficence, these, as far as

—of the • . .

dictates of concetiis matters of [detail, must necessarily te
abandoned in great measure to the jurisdiction of
private ethics. In many cases the beneficial qua^
lity of the act depends essentially upon the dis-
position of the agent ; that is, upon the motiyes
by which he appears to have been prompted to
perform it : upon their belonging to the head of
sympathy, IdVe of amity, or love of reputation ;
and not to any head of self-regarding motives,
brought into play by the force of political con-
straint : in a word, upon their being such as de-
nomiiiate his conduct Jret and volmtmy, accord-
ing to one of the rhs^y senses given to those am-
biguous expressions*. The limits of the law on

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.

* If we may believe M. Volttore,* there was a time when
the French ladies who thought themselves neglected by their
husbandsi used to petition pour itre emhesoign^ : the tech-
nical word, which, he says, was appropriated to this pur-
pose. The^e sort of law-proceedings seem not very well
calculated to answer the design : accordingly we hear no*
thing of them now-a-days. The French ladies of the present
age seeni to be under no such difficulties.

— "- ■ - - ■ - — ■ • - - ' ^ - - II II |-> m-- ~ - "I - I I I I _ . - r ' ' 1 -i

* Quest, sur PEncjcIop. torn. T. art. Ii^puiaMiiicc.

PENAL BRANCH OP JURISPRUDENCE. ^55

this head seem, however, to be , capable of being cb a^.
extended a good deal farther than they seem ever ^ — >^—^
to have been extended hitherto. In particular, ill
cases where the person is in danger, why should
it not be made the duty of every man to save
another from mischief, when it can be done with-
out prejudicing himself, as well as to abstam from
bringing it on him ? This accordingly is the idea
pursued in the body of the work ♦.

XX.

To conclude this sectionr, let us recapituliate Difference
and bring to a point the difference between J^Tr*"?."-

. , 1 • •11 A • and the art of

private ethics, considered as an art or science, on icgisiatbnw-
the one hand, and that branch of jurisprudence *^^"" ^
which contains the art or science of legislation,
on the other. Private ethics teaches how each
man may dispose himself to pursue the course
most conducive to his own happiness, by means
of such motives as offer of themselves: the art
of legislation (which may be considered as one
branch of the science of jurisprudence) teaches

-^ = — ' — '• '

* A woman's head-dress catches fire; water is athaad:
a man, instead of assisting to quench the fire, looks on, and
laughs at it. A drunken man, falling with his face down-
wards 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 t 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 ?

S5iS.

OF THE LIMITS OF THE

how a multitude of men^ composing a community,
may be disposed to pursue that course which
upon the whole is the most conducive to the
happiness of the whole community, by means of
motives to be applied by the legislator.

We come now to exhibit the lingiits between
penal and civil jurisprudence. For this purpose
it may be of use to give a distinct though summary
view of the principal branches into which jurispru-
dence, considered in its utmost extent, is wont to
be divided.

§ 2. Jurisprudence y its branches.

XXI.

Jurispra- Jurisprudence is a fictitious entity: nor can

i^tot^ any meaning be found for the word, but by

cenaonai. pj^^ing jj {^i compauy with some word that shall

be significative of a real entity. To know what
is meant by jurisprudence, we mi)st know, for
example, what is meant by a book of jurispru-
dence. A book of jurisprudence can have but
one or the other of two objects : 1 . To ascertain
what the kcw* is: S. ascertain what it ought to be.
In the former case it may be stiled a book of ex-
pository jurisprudence; in the latter, a book of

* 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 ac-
customed to annei^ to it.

PENAL BRANCH OF JURISPRUDENCE. ^^7

vensorial jurisprudence: or, in other words, a Chap.
book on the art of legislation.' ' — v*^

XXII.

A book of expository jurisprudence is either Expontory

. .... jurispru-

authofitative or unauthoritatvoe. It is'stiled au- dfence, an-
thoritative, when it is composed by him who, by --unaDtho.
representing the state of the law to be so and so,
causeth it so to be ; that is, of the legislator him-
self : unauthoritative, when it is the work of any
other person at large.

XXIII.

Now law, or the law, taken indefinitely, is an souroes of
abstract and collective term; which, when ittiMisyeiro.
means any thing, can mean neither more nor less ™®^^8*
than the sum total of a number of individual laws
taken together*. It follows, that of whatever
other modifications the subject of a book of juris-

' : — — — — — ^

* In most of the Earopean languages there are two diffe-
rent words for distinguishing the abstract and the concrete
senses of the word law: which words are so wide asiAider
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, Ugge and diritto: in French, Un and
droit: in Spanish, ley and derecho: in German, gesetz ^xid
recht The English is at present destitute of this advantage.

In the Anglo-Saxon, besides lage, and several other words,
^or the concrete sense, there was the word right, answering
^o the German recht, for the abstract; as may be seen in the*
compound folc-rightf and in other instances. But the word
right having long ago lost this siBnse, the modern English
no longer possesses this advantage.

VOL. 11. S

^*^ or THE LIMITS OF THE

I"''* prudence is susceptible, tiiey must all of them be
^-v-^ taken from some circumstance or other of which
such individual laws^ or the assemblages into
which they may be sorted^ are susceptible. The
. circumstances that have given rise to the principal
branches of jurisprudence we are wont to hear oi,
seem to be as follow : 1. The extent of the laws in
question in point of dominion. 2. The political
quality of the persons whose conduct they under-
take to regulate. 3. The time of their being in
force. 4. The manner in which they are expressed.
5. The concern which they have with the article
of punishment.

XXXV.

jurispra- In the first place> in point of extent^ what is
— nnivenai. delivered concermng the laws in question, may
have reference either to the laws of sudi or such
a nation or nations in particular, or to the laws
of all nations whatsoever: in the first case, the
book may be said to relate to locals in the other,
to universal, jurisprudence.

Now of the infinite variety of nations there are
upon the earth, there are no two which agree
exBxAy in their laws; certainly not in the whole;
perhaps not even in any single article; and let
them agree to-day, they would dis^igree to-morrow.
, ' This is evident enough with regard to the substance
of the laws : and it would be still more extraor-
dinary if they agreed in point oiform; that is, if
they were conceived in precisely the same strings

PENAL BRANCH OF JURISPRUDENCE. 259

of words. What is more, as the languages of
nations are commonly different, as well as their
laws, it is seldom that, strictly speaking, they hare
so much as a single word in common. However,
among the words that are appropriated to t^ie
subject of law, there are some that in all lan-
guages are pretty exactly correspondent to one
another : which comes to the same thing nearly as
if they were the same. Of this stamp, for ex-
ample, are those which correspond to the words
power, right, obligation, liberty, and many others.

It follows, that if there are any books which
can, properly speaking, be stiled books of universal
jurisprudence, they must be looked for within
very narrow limits. Among such as are exposi-
tory, there can be none that are authoritative:
nor even, as far the substance of the laws is con-
cerned, any that are unauthoritative. To be sus-
ceptible of an universal application, all that a
book of the expository kind can have to treat of,
is the import of words : to be, strictly speaking,
universal, it must confine itself to terminologyk
Accordingly the definitions which there has been
occasion here and there to intersperse in the course
of the present work, and particularly the defini-
tion hereafter given of the word law, may be
considered as matter belonging to the head of
universal jurisprudence. Thus far in strictness
of speech: though in point of usage, where a
man, in laying down what he apprehends to be

260 OF THE LIMITS OF THE

the law, extends his views to a few of the nations
with which his own is most connected, it is com-
mon enough to consider what he writes as relating
to universal jurisprudence.

It is in the censorial line that there is the
greatest room for disquisitions that apply to the
circumstances of all nations alike : and in this line
what regards the substance of the laws in question
is as susceptible of an universal application, as
what regards the words. That the laws of all
. nations, or even of any two nations, should coin-
cide in all points, would be as ineligible as it is
impossible: some leading points, however, there
seem to be, in respect of which the laws of all
civilized nations might, without inconvenience, be
the same. To mark out same of these points
will, as far as it goes, be the business of the body
of this work.

XXV.

-^internal ^^ *^® sccoud placc, with regard to the political
JtoDaT**™" 9^ity of the persons whose conduct is the object
of the law. These may, on any given occasion,
be considered either as members of the same state,
or as members of different states: in the first
case, . the law may be referred to the head of
internal^ in the second case, to that of inter-
national* jurisprudence.

* The word international, it itiust be acknowledged, is a
new one; though, it is hoped, sufficiently analogous and
intelligible. It is calculated to express, in a more significant

PENAL BRANCH OF JURISPRUDENCE. 261

Now as to any transactions which may take C""*'*
place between individuals who are subjects of
different states, these are regulated by the inter-
nal laws, and decided upon by the internal tribu-
nals, of the one or th^ other of those states : the
case is the same where the sovereign of the one
has any immediate transactions with a private
member of the other: the sovereign reducing
himself, pro re natd, to the condition of a private
person, as often as he submits his cause to either
tribunal ; whether by claiming a benefit, or de-
fending himself against a burthen. There remain
then the mutual transactions between sovereigns
as such, for the subject of that branch of jurispru-
dence which may be properly and exclusively
termed international*.

way, the branch of law which goes commonly under the
name of the law of nations : an appellation so uncharacteris-
tic, that, were it not for the force of custom^ it would seem
rather to refer to internal jurisprudence. The chancellor
D'Auguesseau 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-f.

* 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

t OcDvpes, Tom. II. p. 337, Edit. 1773, 12mo.

«65^ OF THE LIMITIS OF THB

' Chip. With what degree of propriety rules for the

^ — V— ^ conduct of persons of this description can come

under the appellation of laws, is a question that

must rest tiU the nature of the thing called a law

shall have been more particularly unfolded.

It is evident enough^ that international juris-
prudence may^ as well as internal^ be censorial as
well as expository^ unauthoritative as well as
authoritative.

XXVI,

Internal ju- Internal jurisprudence, again, may either con-
oationai and ccm all the mcmbcrs of a state indiscriminately,

proTincialy

local or par- or such of them only as are connected in the way
of residence, or otherwise, with a particular dis-
trict. Jurisprudence is accordingly sometimes
distinguished into national and pravinciaL But as
the epithet provincial is hardly applic^^ble to dis-

80 : 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 bailywick. 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
no 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 Mr. Dumont, it has taken
root in the language. Witness Reviews and Newspapers.

• Selden't Table-Talk, tit. Law.

PENAL BRANCH OF JUltlSPRUOENCE.

tiicts SO small as many of thos^ which have laws ^^
of their own are wont to be, such as towns, ^"**>^^-^
parishes, and manors ; the term local , (where uni-
versal jurisprudence is plainly out of the question)
or the term particular, though this latter is not
very characteristic, might ^ther of them be more
commodious *.

xxvn.
Third, with respect to time. In a work of jonspra-
the expository kind, the laws that are in questioh dent-liiv^
may either be such as are still in force at the time ^'
when the book is writing, or such as have ceased
to be in force. In the latter case the subject of
it might be termed ancient ; in the former, present
or living jurisprudence : that is, if the substantive
jurisprudence, and no other, must at any rate be
employed, and that with an epithet in both cases.
But the truth is, that a book of the former kind
is rather a book of history than a book of juris^
prudence ; and, if the word juri^rudence be ex-
pressive of the subject, it is only with some such
words as history or antiquities prefixed. And as
the laws which are any where in question are
supposed, if nothing appears to the contrary, to

* The term municipal seemed to answer the purpose very
well, till it was tpJien by an English author of the first
eminence, to signify internal law in general, in contradisdnc-
tioB to international law, and the imaginary law of nature.
It might still be used in this sense, without scruple, in any
other language.

964 _ OF THE LIMITS OF THE

Chap, jje thosc which are in force, no such epithet as

XVII.

that of present or lioing commonly appears.
* Where a hook is so circumstanced, that the
laws which form. the suhject of it, though in force
at the time of its being written, wre in force no
longer, that book is neither a book of living
jurisprudence, nor a book on the history of juris-
prudence : it is no longer the former, and it never
was the latter. It is evident that, owing to the
changes which from time to time iQUSt take place,
in a greater or less degree, in every body of laws,
every book of jurisprudence, which is of an ex-
pository ^nature, must, in the course oi a few
years, come to partake more or less of this
condition.

The most common and most useful object of a
history of jurisprudence, is to exhibit the circum-
stances that have attended the establishment of
laws actually in force. But the exposition of the
dead laws which have been superseded, is inse-
parably interwoven with that of the living ones
which have superseded them. The great use of
both these branches of science, is to fiimish ex-
amples for the art of legislation*.

* Of what stamp are the works of GrotiuSy Puffendorf, and
Burlamaqoi? Are they political or ethical, historical or juri-
dicaly expository or censorial?— Sometimes one thing, some-
times 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

r
I

PENAL BEANCH OF JUI^ISPRUDENCE. 965

XXVm. Chap.

XVIT.

Foivthly, in point of eapression, the laws in ^"tv — '
question may subsist. either in the fonn of statute deoce, star
or in that of customary law. cu^tumary.

As to the difference between these two bran-
ches (which respects only the article of form or
expression) it cannot properly be made appear
till some progress has been made in the definition
of a law.

XXIX.

Last^ The most intricate distinction of all^ and Jurispm-
that which comes most frequently on the carpet^ — pwii—
is that which is ma?Ie between the 4:ml branch of "*°^-
jurisprudence and the penal, which latter is wont,
in certain circumstances, to receive the name of
crimnal.

What is a penal code of laws ? What a civil Question,

__^^_ _. AT* concerning

code ? Of what nature are their contents ? Is it the dbtmc-
that there are two sorts of laws, the one penal the tbecmr
other civil, so that the laws in a penal code are all thTpemuT

^ >_________^_ stated. '

pretended law of nature ; an obscure phsintom, which, in the
imaginations of those who go in chace of it, points some-
times to manners^ sometimes to laws} sometimes to what law
is, sometimes to wliatit 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. [Priuciples adverse] xiv.

S66 OF THE LIMITS OF THE

Chai?. penal laws, whfle tli6 laws in a dvil code are all
^ — V — ' civil laws ? Or is it, that in every law there is
some matter which is of a penal nature, and whidi
therefore hdlongs to the penal code a2id at the
same time other matter which is of a dvil nature,
and which therefore belongs to the dvil code 1 Or
is it, that some laws belong tjo one code or tibe
other exclusively, while others are divided between
the two ? To answer these questions in any man-
ner that shall be tolerably satisfactory, it wiU be
necessary to ascertain what a law is ; meaning one
entire but single law : and what are the parts into
which a law, as such, is capable of being distin-
guished : or, in other words, to ascertain what
the properties are that are to be found in every
object which can with propriety receive the appel-
lation of a law. This then will be the business of
the third and fourth sections : what concerns the
import of the word criminal, as applied to law,
will be discussed separately in the fifth*.

OocasioD * Here ends the original work, in the state into which it

^thK!* ^^® brought in November, 1780. What follows is now
dadiDgoote. added in January, 1789.

Thethird, fourth, send fifth sections intended, as expressed
in the text, to have been added to this chapter, will not here,
nor now> be given ; because to give them in a manner tole-
rably complete and satisfactory, might require a considerable
volume. This volume will form a work of itself, closing the
series of works mentioned in the preface.
What follows here may serve to give a slight intimation of

PENAL BRANCH OF JURISPRUDENCE. . «W

the nature of the task, which such a work y^ill have to at-
cbieve : it will at the sapae time furnithy not any thing like a
satisfactory answer to the questions mentioned in the text^
but a slight and general indication of the course to be taken
for giving them such an answer.

What is a law? What the parts of a law ? The subject of By a km
these questions, it is to be obsenred^ is the Jo^icaZ, the ideaU n^t^"^
the inieUectual whole, not the physical one : the law and not ^^^*
the statute. An inquiry, directed to the latter sort of object,
could neither admit of difficulty nor afford instruction. In
this sense whatever is given for law by the person or persons
/recognized as possessing the power of making laws, is law.
The Metamorphoses of Ovid, if thus given, would be law.
So much as was embraced by one and the same act of
authentication, so much as received the touch of the sceptre
at one stroke^ is one law : a whole law, and nothing more. .
A statute of George II. made to substitute an or instead of an
and in a former statute is a complete law ; a statute con-
taining an entire body of laws, perfect in all its parts, would
not be more so. By the word law then, as often as it occurs
in the succeeding pages, is meant that ideal object, of which
the part, the whole/ or the multiple, or an assemblage of
parts, wholes, and multiples mixed together, is exhibited by
a statute ; not the statute which exhibits them.

Every law, when complete, is either of a coercive or uncoer^ Every law b

X either a

we nature. commander

A coercive law is a command, a revocation

An uncoercive, or rather a d»coercive, law is the revocation,
in whole, or in part, of a coercive law.

What has been termed a declaratory law, so far as it stands A declara-
distinguished from either a coercive or a discoercive law, is not ^^ pJLcr.
properly speaking a law. It is not the expression of an act ly speaking,

a laiv

of the will exercised at the time : it is a mere notification of
the existence of a law, either of the coercive or the discoercive
kind, as already subsisting : of the existence of some docur
ment expressive of some act of the will, exercised^ not at the

268 , ON THE LIMITS OF TifE

Chap, time, but at some former period. If it does any thin^ more

XVII . .

\..-i.^^^J^ than give information ^of this fact» yiz. of the prior existence

of a law of either the coercive or the discoercive kind,, it

ceases pro tanto to be what 1^ meant by a declaratory law,

and assuming either the coercive or the discoercive quality.

V. Every coercive iaw creates an offence, that is, converts an
dve kw^ act of son[ie sort or . other into an offence. It is only by so
ates an of- doing that it can impose obligation, that it can produce coer^

cum.

VI. A law confining itself to the creation of an offence, and a
tiDgan^of." ^^^ commanding a punishment to be administered in case of
fence, and the commisiiion of $uch an offence, are two distinct laws:

one appoint

ing punish- not parts (as they seem to have been generally accounted

disSnct" hitherto) of one and the same law. The acts they command

law8. are altogether different; the persons they are addressed to

are altogether different. Instance, Let no man steal; and,

Let the judge cawe whoever is convicted of stealing to be hanged.

They might be stiled ; the former, a simple imperative law ;

the other, a punitory ; but the punitory, if it commands the

punishment to be inflicted; and does not merely permit it, is

a« truly imperative as the other : only it is punitory besides,

which the other is not.

VII. A law of the discoercive kind, considered in itself, can have

ve^J^can ^^ punitory law belonging to it : to receive the assistance and

ha^e no pu^ support of a punitory law, it must first receive that of a sim-

app^tain- P^J imperative or coercive law, and it ii^ to this latter that the

'jJ8*o h th*** punitory law will attach itself, and not to the discoercive one.

iotervention Example ; discoercive law. The sheriff has power to hang all

cive otc" *"^^ ^ the judge, proceeding in due course of law, shall order

him to hang. Example of a coercive law, made in support of

the above discoercive one. Let no man hinder the sheriff from

hanging such as the judge ^ proceeding in due course of law ^ shall

order him to hang. Example of a punitory law, made in

support of the above coercive one. Let the judge cause to he

imprisoned whosoever attempts to hinder the sheriff from hangings

PENAL BRANCH OF JURISPRUDENCE. 269

ofitf, whom the judge, proceeding in due course of law, has or^ Chap.
dered him to hang, ^ ^ '*

But though a sitiiply imperative law, and the punitory Ijiw VIII.
attached to it, are so far distinct laws, that the former con- ^itory law
tains nothing: of the latter, and the latter, in its direct tenor, ^^^^J^^ the

° ^ ' siiDplj im-

contains nothing of the' former ; yet by implication, and that perative one
a necessary one, the punitory <ioes involve and include the * ^^
import of the simple imperative law to which it is appended.
To say to the judge. Cause to be hanged whoever in due form of
law is convicted of stealing, is, though not a direct, yet as
intelligible a way of intimating to men in general that they
must not steal, as to say to them directly. Do not steal : and -
one sees, how much more likely to be efficacious.

It should seem then, that, wherever a simply imperative _ ^'

'^ / '^ The simply

law is to have a punitory one appended to it, the former imperative
might be spared altogether : in which case, saying the excep- therefore be
tion, (which naturally should seem not likely to, be a fre- spared, but
quent one) of a law capable of answering its purpose without sitory ma^
such an appendage, there should be no occasion in the ^^^'
whole body of the law for any other than punitory, or in other >
words than penal, laws. And this, perhaps, would be the i

case, were it not for the necessity of a large quantity of
matter of the expository kind of which we come now to speak.

It will happen in the instance of many, probably of most, . X.
possibly of all commands endued with the force of a public ^^^^ ezposi-
law, that, in the expression given to such a command, it shall ^^J matter* •
be necessary to have recourse to terms too complex in their
signification, to exhibit the requisite ideas, without the assist-
ance of a greater or less quantity of matter of an expository
nature. Such terms, like the symbols used in algebraical
notation, are rather substitutes and indexes to the tersas
capable of themselves . of exhibiting the ideas" in question,
than the real and immediate representatives of those ideas.

Take for instance the law. Thou shalt not steal .* Such a
command, were it to rest there, could never sufficiently
answer the purpose of a law. A word of so vague and unex-i

^0 OF THE LIMITS OP THE

Chap, plicit a meaning can no otherwise perform this office, than hy
y^.^^^ giving a general intimation of a variety of propositions, each
requiring, to convey it to the apprehension, a more particular
and ample assemblage of terms. Stealing, for example,
(according to a definition not accurate enough for use, but
sufficiently so for the present purpose) is the taking of a thing
which ii another^s, by one who has no titi«£ so to do, and is
c(mseious of his having none. Even after this exposition,
supposing it a correct one» can the law be regarded as com-
pletely expressed ? Certainly not. For what is meant by a
tnan''s hating a title to take a thing ? To be complete, the
law must have exhibited^ amongst a multitude of other things,
two catalogues ; the one of events to which it has given the
' quality of conferring title in such a case ; the other of the
events to which it has given the quality of taking it away.
What follows ? That for a man to have stolen, for a man to
ham had no title to what he took, either no one of the articles
contained in the first of those lists must have happened in
, his favour, or if there has, some one of the number of those
contained in the second, must h^ve happened to his preju-
dice*
^I« Such then is the nature of a general law, that while the

of its compa- inoperative part of it, tSaepuwAum salienseA it may be termed,

rativebulkis of this artificial body, shall not take up above two or three
not peculiar . •' ...

to legislative words, its expository appendage, without which that impera-
commaD ^j^^ ^^^^ could not rightly perform its office, may occupy
a considerable volume.

But this may equally be the case with a private order

given in a family. Take for instance one from a bookseller

to his foreman. Remove^ from this shop to my new one, my

whole stock, according to this printed catalogue. — Remove,

from this shop to my new one, my whole stock, is the imperative

matter of this order ; the catalogue referred to contains the

expository appendage.

XII. The same mass of expository matter may serve in common

roass^r* ^^^* ™*y appertain in common to, many commands, many

PENAL;BRANCH OF JURISPRUDENCE. ^i

masses of imperative matter. Thus^ amongst other things the \CaAP.
catalogue of coUaHve and ablative events, with respect to titles n^..^^^.^^
above spoken of, (see No. IX. of this note) will belong in ^j^^^
common to all or most of the laws constitutive of the va- >erye in
lions offences against property. Thns« in mathematical dia* numy laws,
grams, one and the same base shall serve for a whole cluster
of triangles.

Such expository matter, being of a complexion so different XIH.
from the imperative, it would be no wonder if the connec- tiTe cham^*
tion of the former with the latter should escape the obser- *cr essential

* to law, IS apt

vation : which* indeed, is perhaps pretty generally the case, tobeoonceal-
And so long as any mass of legislative matter presents itself, Ij^^^J^J*^
which is not itself imperative or the contrary, or of which the mattec
connection with matter of one of those two descriptions is
not apprehended, so long and so far the truth of the propo-
sition. That every law i$ a ccmmand or its opposite^ may remain
unsuspected, or appear questionable ; so long also may the
incompleteness of the greater part of those masses of legis*-
lative matter, which wear the complexion of complete laws
upon the face of them, also the method to be taken for ren-
dering them really complete, remain undiscovered.
A circumstance, that will naturally contribute to increase ^ X^*

^ , _. . , . ^ Tiieconceal-

the difficulty of the discovery, is the great variety of ways m ment is fa-
which the imperation of a law may be conveyed — ^the great JJ^Tm^^
variety of forma which the imperative part of a law may in- tude of indi.
discriminately assume : some more directly, some less di- wUch^p^
rectly expressive of the imperative quality. Thou shalt not [*^!® ™**"
steal. Let no man steal. Whoso stealeth shall be punished so ble of being
4fnd so, Jf any man steal, he shall be punisJied so ond so*
Stealing is where a man does so and so; the punishment for
stealing is so and so. To judges ^ so and so named, and so and
so constijtuted, belong the cognizcmce of such and such offences f
viz. siealing'-^nd so on. These are but part of a multitude
of forms of words, in any of which the command, by which
stealing is prohibited might equally be couched : and it is

S7« OF THE LIMITS OF THE

Chap, manifest to what a degree, in some of them, the imperative '
«^ ^ ^ quality is clouded and concealed from ordinary apprehen-
sion.
XV. After this explanation, a general proposition or two, that

and nature °^^y ^ ^^^ down, may help to afford some little insight into
of the laws ^^^ structure and contents of a complete body of laws. — So

m a code, ^ ''

liowde- many different sorts of offences created, so many different
^ ' laws of the coercive kind : so many exceptions taken out of

the descriptions of those offences, so many laws of the dis^
coercive kind.

To class offences, as hath been attempted to be done in the
preceding chapter, is therefore to class laws : to exhibit a
complete catalogue of all the offences created by law, includ-
ing the whole mass of expository matter necessary for fixing
and exhibiting the import of the 'terms contained in the
several laws, by which those ofiences are respec^vely created,
would be to exhibit a complete collection of the laws in force :
in a word, a Complete body of law ; a pannomicny if so it
' might be termed.
XVL From the obscurity in which the limits of a law, and the

^ISf'rHrr* distinction betwixt a law of the civil or simply imperative
between a kind and a punitory law, are naturally involved, results the
penal code, pbscurity of the limits betwixt a civil and a pene4 code, be-
twixt the civil branch of the law and the penal.

The question, What parts of the total ma^s of legislative
matter belong to the civil branch, and what to the penal ? sup-'
poses that divers political states, or at least that some one
such state, are to be found, having as well a civil code as a
penal code, each of them complete in its kind, and marked
out by certain limits. But no one such state has ever yet
existed.

To put a question to which a true answer can be given, we
must substitute to the foregoing question some such one as
that which follows:

Suppose two masses of legislative matter to be drawn up
at this time of day, the one under the name of a civil c6de> the

PENAL BRANCH OF JURISPRUDENCE.

tri

xvn.

other of a penal code, each meant to be complete in its
kind — in what general way, is it natural to suppose, that the
difierent sorts of matter, as above distinguished, would be
distributed between them ?

To this question the following answer seems likely to come
as near as any other to the truth.

The civil code would not consist of a collection of civil
laws, each complete in itself, as well as clear of all' penal
ones.

NeiUier would the penal code (since we .have seen that it
could not) consist of a collection of punitive laws, each not
only complete in itself, but clear of all civil ones. But

The civil code would consist chiefly of mere masses of ex-
pository matter. The imperative matter, to which those ^ ^^ ^^^
masses of expository matter respectively appertained, would
be found — ^not in that same code — ^not in the civil code — nor
in a pure state, free from all admixture of punitory laws; but
in the penal code — in^ a state of combinatiouT-involved, in
manner as above explained, in so many correspondent puni-
tory laws.

The penal code then would consist principally of punitive XVm.
laws, involving the imperative matter of the whole number of a penal
civil laws : along with which would probably also be found ^*'
various masses of expository matter, appertaining, not to the.
civil, but to the punitory laws. The body of penal law»
enacted by the Empress-Queen Maria Theresa, agrees pretty '
well with this account

The mass of legislative matter published in French as well XIX«
as German, under the auspices of Frederic lid. of Prussia; p"J**'^*
by the name of Code Frederic, but never established withimpendve
force of law*, appears, for example, to be almost wholly ^,„^^j j^^J*
composed of masses of expository matter, the relation of^^^j^ee'*
which to any imperative matter appears to have been but matterf
very imperfectly apprehended.

* Mimbeaa sor la Monarchic Frasneniie, Tom. ▼• Lit. 8. p. 215.
VOL. 11. T

374

OF TtfE LIMITS dF TH£

CsAP. In that enormous mass of confusion and inccmsistency^
^' ^ * the ancient Roman, or, as it is termed by way of eminence,
So in the ^ ^^^ ^^^> ^® imperative matter, and eyen all traces of
Boroan^w, ^^ imperatiye character^ seem at last to have been smothered
in the expository. Eito had been tiie language of primaeval
simplicity : e«to had been the language of the twelve tables.
By the time of Justinian (so thick was the darkness raided
by clouds of commentators) the penal law had been crammed
into an odd comer of the civil-— the whole catalogue of
oiSences, and even of crimes, lay buried under a heap of 06-
%atu>it<— *toiU was hid in opinion— and the original esto had
transformed itself into videtury in the mouths even of the
most despotic sovereigns.
I ^h Among the barbarous nations that grew up out of the ruins

bwian codes of the Roman Empire, Law, emerging from under the moun-
•picTOwT"' ^^^ ^^ expository rublHsh, reassumed for a while the lan-
guage of command: and then she had simplicity at least, if
nothing else, to recommend her.
Constito^ Besides the civil and the penal, every complete body of
tional code, law must contain a third branch, the carutUutionaL
with the two The constitutional branch is chiefly employed in confer-
othen. ^^^^ ^^ particular classes of persons, powerg, to be exercised
for the good of the whole society, or of considerable parts of
it, and prescribing dvHei to the persons invested with those
powers.

The powers are principally constituted, in the first in-
stance, by discoercive or permissive Ikws, operating as ex-
ceptions to certain laws of the coercive or imperative kind.
Instance : A tax-gatherer, oi such, may, on meh and such tm
occasion, take such and such things, without any other title.
The duties are created by imperative laws, addressed to
the persons on whom the powers are conferred. Instance :
On such and such an occasion, such and su^h d tax-gatkertr
shall take such and such things. Such and such a judge shaU,
in such and such a case, cause persons so and so off^dlng to he
heinged.

"A ^Jt , ^

PBNAL JmANGH OF JURISPRUDENCE.

«r5

The parts which perform the function of indicating who Ch a »
the individuals are, who, in erery case, shall be considered ^— ^^^
as belonging to those classes, have neither a permissive
complexion, nor an imperative.

They are so many masses of expository matter, appertain-
ing in common to all laws, into the texture of which, the
names of those classes of persons have occasion to be insert-
ed. Instance ; imperative matter : — Let the judge cause
whoever, in due course of taw, is convicted of stealing, to be
flanged. Nature of the expository matter: — ^Who is the
person meant by the word judge ? He who has been invested
with that office in such a manner : and in respect of whom
no event has happened, of the number of those, to which the
effect is given, of reducing him to the condition of one
divested of that office.

Thus it is, that one and the same law, one and the same -,^?^

Thus the

command, will have its matter divided, not only between two matter of
great codes, or main branches of the whole body of the laws, ™ J^^j.
the civil and the penal ; but amongst three such branches, ^ded «-

inong all

the civil, the penal, and the constitutional. three codes.

In countries, where a great part of the law exists in no XXIV.
other shape, than that of what in England is called common ma^ a
law but might be more expressively i&tmsA judidaryy there «**atqn*n-
must be a great multitude of laws, the import of which can- ists every
not be sufficiently made out for practice, without referring ^ olber**
to this common law, for more or less of the expository matter ^^''^ ^^^^
belonging to them. Thus iuEngland the exposition of the word oommon or
title, that basis of the whole fabrick of the laws of property, is •J^^**^"^
no where else to be found. And, as uncertainty is the very
essence of every particle of law so denominated (for the
instant it is clothed in a certain authoritative form of words
it changes its nature, and passes over to the other denomi-
nation) hence it is that a great part of the laws in being m
such countries remain uncertain and incomplete. What are
those countries ? To this hour, every one on the surface of
thcglob^

^^ OP THE LIMITS OP THE

CkiAP. Had the science of architecture no fixed nomenclature
belonging to it — ^were there no settled names, for distin-
Hme^ gnishing the different sorts of buildingSy nor the difierent
deplorable parts of the same building from each other — what would
science of it be ? It would be what the science of legislation, considered
^^*^*^!d^ with respect to its form^ remains at present,
in respect of Were there no architects who could distinguish a dwelling-

' * house from a bam, or a side-wall from a ceiling, what
would architects be ? They would be what all legislators are
at present.

XXVX From this very slight and imperfect sketch, may be coUec-
^^^^^^ ted not an answer to the questions in the text but an i^tima-
csempli£ca^ tion, and that but an imperfect one, of the course to be
difficnlty as taken for giving such an answer ; and* at any rate, some idea
iniTOrtanc ^^ ^® difficulty, as well as of the necessity, of the task,
of tbb If it were thought necessary to recur to experience for

science ptoofs of this difficulty, and this necessity, they need not be

attempts to long wanting.

powers of Take, for instance, so many well meant endeavours on the
repreMmta- P^^ of popular bodies, and so many well meant recommend-
tive legis- ations in ingenious books, to restrain supreme representative
assemblies, from making laws in such and such cases, or to
such and such an effect. Such laws, to answer the intended
purpose, require a perfect mastery in the science of law,
consideced in respect of its form — in the sort of anatomy
spoken of in the preface to this work : but a perfect, or even
a moderate insight into that science, would prevent their
being couched in those loose and inadequate terms, in which
they may be observed so frequently to be conceived ; as a
perfect acquaintance with the dictates of utility on tha,t head
would, in many, if not in most, of those instances, discounsel
the attempt Keep to the letter, and in attempting to
prevent the making oi bad laws,^ you will find them prohibit-
ing the making of the most necessary laws, perhaps even of
all laws : quit the letter, and they express no more than if

PENAL BRANCH OF JURISPRUI^NGE. 977

e«ch man were to say, Your laws shaU became ^9 faeto Cm at,
wjfid, as often as they contain any thistg which is not to my "^^ '
mind.

Of such unhappy attempts, examples may be met irith in
the legislation of many nations : but in none more frequently
than in that newly*created nation, one of the most enlightened,
if not the most enlightened, at this day on the globe. •

Take for instance, the Declaration of Rights, enacts by XXVIT. ^

the state of North-Carolina, in convention, in or about the Example.

V /» « Ameiican

month of September, 1788, and said to be copied, with a dedantioiis

small exception, from one in like manner enacted by the state <>^"g^*^

of Virginia*. ,

The following, to go no farther, is the first and funda-
mental article.

** That there are certain natural rights, of whigh men,

when they form ^ social compact, cannot deprive or divest

their posterity, among which are the enjoyment of life and
" liberty, with the means of acquiring, possessing, and pro-
'< tectin'g property, and pursuing and obtaining happiness
** and safety.

Not to dwell on the oversight of confining to posterity the-
benefit of the rights thus declared, what follows ? That — as
against those whom the protection, thus meant to be afforded,
includes — every law, or other order, divesting a man of the
enjoyment of life or liberty, is void.

Therefore this is the case, amongst others, with every,
coercive law.

Therefore, as against 'the persons thus protected, every
order, for example, to pay money on the score of taxation,
or of debt from individual to individual, or otherwise, is void ;
for the effect of it, if complied with, is ^^ to deprive and divest
him/' pro tanto, of the enjoyment of liberty, viz. the liberty
of paying or not paying as he thinks proper : not to mention

* R«cherohes sur Les Etats Unis, 8to. 1788, Vol. I. p. 158.

tTB OP T9S UMiTP QF THE

Chap, tke spedts opposed to inq>nB0iniient9 in the eT^&t of such a

V .^ ,V mode <^ coercion's being resorted to : likewise, of prc^erty ,

which is itself, a '^ means of acquiring^ postemng, and proteo

** tmgproperiy^ mnd rf pursuif^ and ohtamng happiness asuL

« safeiff, ""

Therefore also, as against such persons, every order to

attack an armed enemy, in time of war, is also void : for, the

> necessary effect of such an order is, '' to deprive some of

»»

'^ them of ihe enjityment of life!

The above-mentioned consequences may suffice for exam-
ples» amongst an endless train of similar ones*.

* The Virig^iAn Declaration of Rights, said, in the French work above
quoted, to have been enacted the 1st of Jiin^ 1776, is^ not inserted in the
pabtication entitled '* The ComUbiOMm cf iht teoerai miependent states of
Ameriea, 4«." PuMkhed bycrder cf Coagreui Philadelphia printed, i2e-
printed for StochdaU and Walker, London, 1782 : though that poblication
contains the form of govemment enacted in the same convention, between the
6th of May and the 5th of Jaly in the same year.

But in that same publication is contained a Dedaraiion of Bights, of the
province of Massackusets, dated. in the years 1779 and 1780, which in its first
artide is a little similar: also one of the province €£ Pennsylvania, dated
between Jaly 15th and September 28th, in which the similarity is rather
more coondereble.

Moreover, the famous Declaratum of Independence, published by Congress
July 5tfa, 1776, after a preambular opening, goes on in these words : ** We heid
these truths to be self-evident ,* that sdl men are created equal •* that thof art
endued by the creator wth certain unalisnahle rights : thot amongst those are
i^e, liberty 9 and the pursuit of happiness.

The Virgiiuan 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 tiie above leading article, at least, to the above-mentioned general
Declaration of Independency. See Recherches, &c* I. 1 97.

Who can help lamenting, that so rational a cause should be rested upoD
reasons, so much fitter to beget objectbns, than to remove them?

But inth men who are unanimous and hearty about measures, nothing so
weak but may pass in the character of a reason : nor is thb the first instance
in the world, where the conclusion has supported the premises, instead of tlie
premises the cooclusioq.

PENAL BRANCH OP JURISPRUDENCE. ^7»

LeaninG: on his elbovr, in an attitude of profound and Chap,
solemn meditation, *' What a multitude of things there are,**
(exclaimed the dancing-master Marcel,) ** in a minuet ?*'—
May we now add f-^and in a law.

THE END.

ERRATUM.

Pages 57 to 73, head line, for » Clasies of offeocei/' rwd " DivMos
ofOffenoes.**

T. White & Co. Printeri,
14, Bear Alley.

Internet Archive Audio

Featured

Top

Images

Featured

Top

Software

Featured

Top

Books

Featured

Top

Video

Featured

Top

Mobile Apps

Browser Extensions

Archive-It Subscription

Save Page Now

Full text of "An Introduction to the Principles of Morals and Legislation"

See other formats