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 offences of the like nature.) S. 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. 197 that of others, to abstain from or to perform. As many different denominations as there are of per- Inconveniences of the 3d order are, 1. Unnecessary delay.
2. Unnecessary intricacy. Inconveniences of the 4th order are, 1. Breach, 2. Abuse, 3. Disturbance, of judicial trust, as above: viz. in as far as these offences are preliminary to and distinct from those of the 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 phthano-paranomic trust: ((pdavu, to prevent; itapayoixia, an offence.) 2. Offences against phthano-symphoric trust: a-v/Mpopa, a calamity. The two trusts may be termed by the common appellation of prophylactic: (■npo, before-hand, and (pvXarru, 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 iroXe/Ao?, war; and ra/xievi;, a steward *.
• A number of different branches of public trust, none of which have yet been provided with appellatives, have here been brought to view: which then were best? to coin new names for them out of the Greek, or, instead of a word, to make use of a whole sentence? In English, and in French, there is no other alternative; no more than in any of the other southern languages. It rests with the reader to determine.
^98 DIVISION OF OFFENCES.
Chap, soiis distinguished with a view to such commands ' — V — ' and allowances (those denominations only except- V. Offences against the positive encrease of the NATIONAL FELICITY. 1. OfFences against episturo-threptic trust: {eitKrrfifA.ri, knowledge; and r/je^w, to nourish or pro- mote.) 2. OfFences against eupcedagogue trust: fu, well; and Tia.t^iz'Y'jr/eu, to educate. 3. Offences against noso-comial trust: vo(7o?, a disease; and v.ojji.i%!c, to take care of. 4. Of- fences against moro-comial trust: {jMpoi, an insane person.)
5. OfFences against ptocho-comial trust: (ttt&'xo'j the poor.)
6. OfFences against aniemfcZeiic trust: (avre/x^aXXw, to bestow in reparation of a loss.) 7- OfFences against hedonarchic trust: {vj^ovai, pleasures; and apxo[Acx,i, to preside over.) The above are examples of the principal establishments which should or might be set on foot for the purpose of making, in so many different ways, a positive addition to the stock of national felicity. To exhibit an exhaustive analysis of the possible total of these establishments would not be a very easy task: nor on the present occasion is it a necessary one; for be they of what nature and in what number they may, the offences to which they stand exposed will, in as far as they are offences against trust, be in point of denomina- tion the same: and as to what turns upon the particular nature of each trust, they will be of too local a nature to come within the present plan.
All these trusts might be comprized under some such general name as that of agatho-poieutic trust: (aya^o-srotecc, to do good to any one.)
VI. Offences against the public wealth. 1. Non- payment of forfeitures. 2. Non-payment of taxes, including smuggling. 3. Breach of the several regulations made to prevent the evasion of taxes. 4. Offences against fiscal trust: the same as offences against judicial and military DIVISION OF OFFENCES. ^99 ed which relate to the conditions above spoken of under the name of domestic ones) so many civil trusts. Offences against the original revenue, not accruing either from taxes or forfeitures, such as that arising from the public demesnes, stand upon the same footing as offences against private property. 5. Offences against demosio-tami- entic trust: (Svj/*oo-ja, things belonging to the public: and raii.iev<;, 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-offices, and packet boats, and the stock belonging to them; market-places, and other such public buildings; race-grounds, public walks, and so forth. Offences of this description will be apt to coincide with offences against agatho-poieutictxn^t as above, or with offences against ethno-plutistic trust hereafter mentioned, according as the benefit in question is considered in itself, or as resulting from the application of such or such a branch or portion of the public wealth.
VII. Offences against population. 1. Emigration. 2. Suicide. 3. Procurement of impotence or barrenness. 4. Abortion- 5. Unprolific coition. 6. Celibacy, VIII. Offences against the national avealth. I. Idleness. 2. 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 trust; (Xao?, the nation at large; icXovrti^u, to enrich.
IX. Offences against the sovereignty. 1. Offences against sovereign trust: corresponding to those against judi- cial, prophylactic, military, and fiscal trusts. Offensive rebel- lion includes wrongful interception, wrongful divestment, Chap, XVI.
^00 DIVISION OF OFFENCES.
conditions one might enumerate. Means how- ever, more or less explicit, may be 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, Avrongful 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 fiduciary) is exercised either by rule or without rule: in the latter case it may be termed autocratic: in the former case it is divided into two branches, the legis- lative &Tid 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 an 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 cli. xvii, [Limits] § iii.
DIVISION OF OFFENCES. 201 What the materials are, if so they may be <^ called, of which conditions, or any other kind of man, either directly, proprid manu; or indirectly, manu aliend *. Power to be exercised manu aliend 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, 2. in a body politic: who may be either supreme or subordinate. Subordination on the part of a magistrate may be established, 1. By the person's being punishable: 2. By his being removeable: 3. By the orders being reversible.
X. Offences against religion. 1. Offences tending to weaken the force of the religious sanction: 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. 1. Immoral publications. 2. Offences against the trust of an ambassador; or, as it might be termed, presbeutic trust. 3. Offences against the trust of a privy-counsellor; or, as it might be termed, smybouleutic trust. 4. In pure or mixed monarchies, prodigality on the part of persons who are about the person of the sovereign, though without being invested with any specific trust. 5. Excessive gaming on the part of the same persons. 6. Taking presents from rival powers without leave.
* In tlie former case, the power might be termed in oii^' word, autochirous: in the latter, heterochirons: (kuto;, a man's own; x^'P> ^ ''^"'^ ' '^epof ano- ther's.)
HAP.
XVI.
202 DIVISION OF OFFENCES.
Chap, legal possessioii, can be made up, we have already ' — V — ' seen: beneficial powers, fiduciary powers, bene- 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 offences to which these conditions are exposed, coincides therefore exactly with the catalogue of offences against trust: under which head they have been considered in a general point of view under the head of offences against trust: and such of them as are of a domestic nature, in a more particular manner in the character of offences against the several domestic conditions. Conditions constituted by such duties of the rela- tive kind, as have for their counterparts 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 persons as are of a private nature: as also to the subordinate correlative conditions constituted by the duties corresponding to those rights and powers. iVs 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 DIVISION OF OFFENCES.
conditions of the monastic kind should be allowed C"^^^- of as examples. There remain, as the only ma- ' v — 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 of 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 considered under that name, are not distinguished by any uniform and explicit line from those of which the materials are wont Supra, xvii.
204 DIVISION OF OFFENCES.
Chap, to be Carried to the head of property: a set of '■ — V — ' 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 be 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. 205 sorts of traders, artists, manufacturers, and other Chap. persons of whatsoever station, who are in the way ' — ^r- 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 knight- hood is constituted, how? by prohibiting all other persons from performing certain acts, the perform- ance 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 ser^dce 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 OF OFFENCES.
sorts of services: that which is the immediate cause of it, a service of the negative 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 footing. 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 of 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 profession: a service which, if there has been no prohibition laid on before, is rendered by simply forbearing to prohibit him.
Now the ideal objects, which in the cases above 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 may be made to forfeit them: and what he is then said to forfeit DIVISION OF OFFENCES. 207 is in neither case his property; but in one case? Chai.. his rank or dignity: in the other case, his trade ^ — v — ' or his profession: and in both cases, his condition. Other cases there are again in which the law, by a process of the same sort with that by which it constituted the former of the two above-men- tioned conditions, confers on him an ideal object, which the laws of language have placed under the head of property. The law permits a man to sell books: that is, all sorts of books in general. Thus far all that it has done is to invest him with a condition: and this condition 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 his favour, and prohibit all other persons from selling books of a certain de- scription, he remaining at liberty to sell them as before. It thereby confers on him a sort of exclusive privilege or monopoly, which is called a copy-right. But by investing him with this right, it is not said to invest him with any new sort of condition; and what it invests him with is spoken of as an article of property; to wit, of that sort of property which is termed incorporeal *: 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 on in the case of an 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 you 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 roturkr, the law confers on you the condition of a gcutilhomme; by forbearing to confer on him those privileges, it imposes on him the condition of a roturier *. The rights, out of which the two advantageous conditions here exemplified are both of them 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 the 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. ' '^<^^ It may be observed, with regard to the greater Chap. part of the conditions here comprised under the ' — v — ' general appellation of civil, 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 over 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 man, 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, invests 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 tlie DIVISION OF OFFENCES.
^"^^- man this sort of negative service, acquire for — ^ — ' 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 you, obliges other persons to render you 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, acquire 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, therefore, 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 the offences to which, as hath been seen, every thing that partakes of the nature of a burthen stands exposed. As to any offences which may concern DIVISION OF OFFENCES. ^H the exercise of the functions belonging to it, if it Ch_»p. happens to have any duties annexed to it, such as ' — v — ' those, for instance, which 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- ance.
In the forming however of the catalogue of these 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 any respect of a pernicious nature, will be sure to be found in some other division of the system of offences: if a baker 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 home, 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 will probably be a wrongful intercep- tion of the projit he might be presumed to have been in a way to make by it: and were it even to appear in any case that a man exercised a trade.
■^^'^ DIVISION OF OFFENCES.
Chap. XVI.