or what is less unlikely, a liberal profession, with- out having profit in his view, the offence will still be reducible to the head of simple injin'tous re- stra'mment, or simple injurious compulsion.
§ 4. Advantages of the present method.
LVI.
Geneial idea of llie A few words, for the purpose of giving a general method here yjg^ of the uiethod of divisiou here pursued, and pursued ^ ' of the advantages which it possesses, may have their use. The whole system of offences, 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 offences, 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.
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 off in the chain of causes and effects. 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 misap- 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-.
DIVISION OF OFFENCES.
poses in view: the one, to exhibit, upon a scale more or less minute, a systematical enumeration of the several possible modifications of delinquen- cy, denominated or undenominated; the other, to find places in the list for such names of offences as were in current use: for the first purpose, nature was to set the law; for the other, custom. Had the nature of the things themselves been the only guide, every such difference in the manner of perpetration, and such only, should have served as a ground for a different denomination, as was at- tended with a difference in point of effect. This however of itself would never have been suffi- cient; for as on one hand the new language, which it would have been necessary to invent, would have been uncouth, and in a manner unintelligible: so on the other hand the names, which were before in current use, and which, in spite of all systems, good or bad, must have remained in current use, would have continued unexplained. To have ad- hered exclusively to the current language, would have been as bad on the other side; for in that case the catalogue of offences, when compared to that of the mischiefs that are capable of being produced, would have been altogether broken 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 whole, constituted by the sum total of possible offences.
DIVISION OF OFFENCES.
has been bisected in as many different directions as were necessary, and the process in each direc- tion carried down to that stage at which 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 work, 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, under all laws, in the character of an offence, had hitherto 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. I have frequently ventured so far as to fabricate a new name for it, such an 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 those univocal appellatives which make part of the established stock.
In the choice of names in current use, care has been taken to avoid all such as have been grounded on local distinctions, ill founded, perhaps, in the '^^^ Division of offences.
Chap.
XVI.
nation in which they received their birth^, 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 another: 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 class of offences against individuals, than in any of the other classes. One use then of this arrangement, if it should be found to have 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 different ages and countries have nothing in common, and they have every thing, are suppositions equally distant from the truth *.
LVII.
lis advun- \ natural method, such as it hath been here tag<s.
*— ^- i' i' attempted to exhibit, seems to possess four capital coiiveiiicTit loi tiic i.p- 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. ^17 note. In the first place, it affords such assistance <^^kap. to the apprehension and to the memor}', as those ^""v— ^ i A •' prehension faculties would in vain look for in any technical a"'^ ''•« "'^• 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 local or other particular causes, accustomed to attend to: such, in a word, as uaturaUi), 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. ii gives a general intimation of the nature of each division m-vlx pro-^^ positions.
* See Fragment on Government, pref. p. xlv. edit. 1776. — pref. p. xlvii. edit. IS'23.
218 DIVISION OF OFFENCES.
^yy^- of offences, in as far as that nature is determined ' — V — ' by some one characteristic property, but it gives room for a number of general propositions to be formed concerning the particular offences that come under that division, in such manner as to exhibit a variety of other properties that may belong to them in common. It gives room, there- fore, for the framing of a number of propo- sitions concerning them, which, though very gene- ral, because predicated of a great number of ar- ticles, shall be as generally true *.
* Imagine what a condition a science must be in> when as yet there shall be no such thing as forming any extensive proposition relative to it, that shall be at the same time a true one: where, if the proposition shall be true of some of the particulars contained under it, it shall be false with re- gard to others. What a state would botany, for example, be in, if the classes were so contrived, that no common cha- racters could be found for them? Yet in this state, and no better, seems every system of penal law to be, authoritative or unauthoritative that has ever yet appeared. Try if it be otherwise, for instance, with the delicta privata et publico, and with the publica ord'maria, and publica extra-ordinaria of the Roman law f- AH this for want of method: and hence the necessity of endeavouring to strike out a new one.
Nor is this want of method to be wondered at. A science so new as that of penal legislation, could hardly have been in any better state. Till objects are distinguished, they cannot be arranged. It is thus that truth and order go on DIVISION OF OFFENCES. 219 LIX. Chap.
XVI.
In the third place, it is so contrived, that the "^ — v — ' very place which any offence is made to occupy, P"'"ts out suggests the reason of its being put there. It of the law. serves to indicate not only that such and such acts are made offences, but why they ought to be. By this means, while it addresses itself to the understanding, it recommends itself, in some measure, to the affections. By the intimation it gives of the nature and tendency of each ob- noxious act, it accounts for, and in some measure vindicates, the treatment which it may be thought proper to bestow upon that act in the way of punishment. To the subject then it is a kind of perpetual apology: shewing the necessity of every defalcation, which, for. the security and prosperity of each individual, it is requisite to make from the liberty of every other. To the legislator it is a kind of perpetual lesson: serving at once as a corrective to his prejudices, and as a check upon his passions. Is there a mischief hand in hand. It is only in proportion as the former is dis- covered, that the latter can be improved. Before a certain order is established, truth can be but imperfectly announced: but until a certain proportion of truth has been developed and brought to light, that order cannot be established. The discovery of truth leads to the establishment of order: and the establishment of order fixes and propagates the dis- covery of truth.
220 DIVISION OF OFFENCES.
CirAP. which has escaped him? in a natural arrange- ^ — >" — ' ment, if at the same time an exhaustive one, he cannot fail to 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 upon 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.
~^- ^' '*,. In the fourth place, a natural arrangement, alike appli- r ' o cable to the governed as it is by a principle which is recog- nations. nizcd by all 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. ^^1 attained, the labour of this analysis, severe as it ^xvf. has been, will not have been thrown away. ' ^ §5. Characters of the Jive classes.
LXI.
It has been mentioned as an advantage pos- ciiaracters sessed by this method, and not possessed by any classes, how other, that the objects comprized under it are fro.n rte^ cast into groupes, to which a variety of proposi- ^ho^cT "* 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 attributed 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 them 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- Characters fences, or offences against assignable individuals. 1. When arrived at their last stage (the stage 222 DIVISION OF OFFENCES.
of consummation*) they produce, all of them, a primary mischief as well as a secondary f.
2. The indivduals whom they affect in the first instance J, are constantly assignable. This extends to all; to attempts and preparations, 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 oi retaliation**', in which also they differ from the offences 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. xii- [Consequences] iii- X [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 capable of being applied in the cases in question; not that it ought always to be employed. Nor is it capable of being applied in every individual instance of each offence, but only in some indi- vidual instance of each species of offence.
** See ch. xv, [Properties] viii.
DIVISION OF OFFENCES. 22S 6. The mischief they produce is obvious: more Chap.
so than that of semi-public offences: and still ' — v — ' more so than that of self-regarding ones, or even public.
7. They are every where, and 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 more constantly obnoxious to the censure of the world than self-regarding offences: and would be so universally, were it not for the »- influence of the two false principles; the principle of asceticism, and the principle of antipathy *.
9. 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.
1 1. 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. ii. [Principles adverse.]. ' ''2'24 DIVISION OF OFFENCES.
sioned, or to be about to occasion, some particular 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 alarm, 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 class 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. 225 5. Nor of retaliation. <^"^p- 6. As such, there is never any one particular ' — v^ — ' 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 offences to require different descriptions in different countries: but less so than public ones.
10. There may be ground for punishing them before they have been proved to have occasioned, 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 226 DIVISION OF OFFENCES.
such satisfaction it is but a part of the mischief of them that is cured. In this they differ from private offences; but agree with public.
LXIV.
Characters Characters of Class 3; consisting of self-regardof Class S. ' O - ING offences: offences against ones aelf.
1. In individual instances it will often be ques- tionable, whether they 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 affect 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 compensation.
4. Nor of retaliation.
5. No person has naturally any peculiar inte- 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;|; may happen to devolve upon him§.
* Because the person, who in general is most 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. '^^7' 6. The mischief they produce is apt to be un- ^J'^^''- obvious, and in general more questionable than ' ^^ ' that of 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 of 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.
10. The best plea for punishing them is founded on a faint probability there may be of their being class, there are some which in certain countries it is not uncommon for persons to be disposed to prosecute -without any artificial inducement, and merely on account of an an- tipathy, which such acts are apt to excite. See ch. ii. [Prin- ciples adverse] xi.
* 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.
228 DIVISION OF OFFENCES.
Chap, productivc of a mischief, which, if real, will place ' — V — ' 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'ciafsT Characters of Class 4; consisting of public of- fences, or offences against the state 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 has 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. 229 7. They are, as such, much less obnoxious to Chap.
I. XVI.
the censure of the world, than private offences; ' — v — ' 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 affect.
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, in these cases, involve the mischief, and exhibit the other cha- racters 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 extent of the mischief makes up for the uncei^tainty of it.
230 DIVISION OF OFFENCES.
^« Y' ^ ^ • I^^ ^^^ ^^^^ ^^"^ satisfaction, given to any "^ — V — ' particular individual affected by them, be a suffi- cient ground for remitting punishment. In this they differ from private offences; but agree with semi-public.
LXVI.
ci.aiact<rrs Characters of Class 5, or appendix: composed of MULTIFORM or ANOMALOUS oltences; 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, grounded 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 some 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 DIVISION OF OFFENCES. 231 circumstance, no offence at all, of that denomina- tion, can be committed*. In other instances, the oflPence 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.
CHAP. XVII.
§ I. LIMITS BETWEEN PRIVATE ETHICS AND THE ART OF LEGISLATION.
Use of tiiis So much for the division of offences in general.
chapter.