denomination of offences against one's self. This class will not for the present give us much trouble.
For it is evident, that in whatever points a man is vulnerable by the hand of another, in the same points may he be conceived to be vulnerable by his own. Whatever divisions therefore will serve for the first class, the same will serve for this.
As to the questions. What acts are productive of a mischief of this stamp? and, among such as are, which it may, and which it may not, be worth tvhile* to treat upon the footing of offences?
* See ch. xiii. [Cases unmeet] § iv.
7'^ CLASSES OF OFFENCES.
these are points, the latter of which at least is, too unsettled, and too open to controversy, to be laid down with that degree of confidence which is implied in the exhibition of properties which are made use of as the groundwork of an arrange- ment. Properties for this purpose ought to be sucli as shew themselves at first glance, and appear to belong to the subject beyond dispute.
Div;,o-,<^of Public offences may be distributed under eleven division*. 1. Offences against external security- Exhaustive ♦ ]n this part of the analysis, I have found it necessary parted ffoiu. to deviate in some degree from the rigid rules of the exhaus- 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 unrelaxed observance of it, seemed io precarious, that I could not help doubting whether it would pay for the delay aud trouble. Doubtless such a method is eminently instructive: but the fatigue of following it out is 80 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. 7^ 2. Offences against justice. 3. Offences against ^«^*p- the preventive branch of the police. 4. Offences ^ ^ — ' against the public /brce. 5. Offences against the positive encrease of the national felicity. 6. Of- fences against the public wealth. 7. Offences against population. 8. Offences against the national wealth. 9' Offences against the sovereignty. 10. Offences against religion. 1 1. Offences against the national interest in general. The way in which these several sorts of offences connect with one another, and with the interest of the public, that is, of an unassignable multitude of the indi- viduals of which that body is composed, may be thus conceived.
XVII.
Mischief by which the interest of the public as Connection above denned may be affected, must, if produced first divi- at all, be produced either by means of an influence with an- exerted 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 will, therefore, be no great wonder if I should not be able to quit it without reluctance. On the other hand, the marks of stiffness which will doubtless be perceived in a multitude of places, are chiefly owing to a solicitous, and not perfectly successful, pursuit of this same method. New instruments are seldom handled at first with perfect ease.
74 DIVISION OF OFFENCES.
fluence *. To begin with the latter case: mischief, be it what it will, and let it happen to whom it will, must be produced either by the unassisted powers of the agent in question, or by the in- strumentality of some 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 instrumentality of per- sons, may accordingly be produced by the in- strumentality either of e.vternal or of internal adver- saries. Now when it is produced by the agent's own unassisted powers, or by the instrumentality of internal adversaries, or only by the instru- mentality of things, it is seldom that it can show itself in any other shape (setting aside any in- fluence it may exert on the operations of govern- ment) than either that of an offence against assignable individuals, or that of an offence against a local or other subordinate class of persons. If * The idea of government, it may be observed, is intro- duced here without any preparation. The fact of its being established, I assume as notorious, and the necessity of it as alike obvious and incontestible. Observations indicating that necessity, if any such should be thought wortli 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 eh. xii. [Consequences] § xvii.
DIVISION OF OFFENCES. 7& there should be a way in which mischief can be Chap.
produced, by any of these means, to individuals ' — v — ' altogether unassignable, it will scarcely be found conspicuous or important enough to occupy a title by itself: it may accordingly be referred to the miscellaneous head of offences against the na- tional inierest in general.*. The only mischief, of any considerable account, which can be made to impend indiscriminately over the whole number of members in the community, is that complex kind of mischief which results from a state of war, and is produced by the instrumentality of external adversaries; by their being provoked* for instance, or invited, or encouraged to inva- sion. In this way may a man very well bring down a mischief, and that a very heavy one, upon the whole community in general, and that 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 vague as it may seem to be, will not, when examined by the principle of utility, serve, any more than another, to secrete any offence which has no title to be placed there- To show the pain or loss of pleasure which is likely to ensue, is a problem, which before a legislator can justify himself in adding the act to the catalogue of offences, he may in this case, as in every other, be called upon to solve.
76 DIVISION OF OFFENCES.
Next with regard to the mischief which an offence may bring upon the public by its influence on the operations of the government. This it may occasion either, 1. In a more immediate way, by its influence on those ope?^ations 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 community, or to make an addition to the sum of positive good*. Now mischief we * 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 OFFENCES. ' have seen, must come either from external ad- ^^^j'- versaries, from internal adversaries, 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 policy: the latter to that of justice*. Second, good, no peculiar name, however inadequate, seems yet to have been devised.
* The functions of justice, and those of the police, must be apt in many points to run one into another: especially as the business would be very badly managed if the same 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: and I see not where the line of separation can be drawn, unless it be as above.
As to the word police, though of Greek extraction, it seems to be of French growth: it is from France, at least,that it has been imported into Great Britain, where it still retains its foreign garb: in Germany, if it did not originate there, it has at least been naturalized. Taken all together, the idea be- longing 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.
As to the imtriXments which government, whether in the averting of evil or in the producing of posi- tive good, can have to work with, these must be either persons or things. Those which are destined to the particular function of guarding against mischief from adversaries in general, but more particularly from external adversaries*.
duce the two branches here specified into one. Who would have endured in this place to have seen two such words as the phthano'paranoinic or crime-preventing, and the phthano- symphoric or calamity-preventing, branches of tlie 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 which employs itself in the management of the public wealth. See infra, liv. note.
* It is from abroad that those pernicious enterprises are most apt to originate, which come backed with a greater quantity of physical force than the persons who are in a more particular sense the officers of justice are wont to have at their command. Mischief the perpetration of which is 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, they loosen themselves from their original denomination in proportion as they encrease in force, till at length they are DIVISION OF OFFENCES. 7^ may be distinguished from the rest under the collective appellation of the public militarij force, and, for conciseness sake, the military force. The rest may be characterised by the collective ap- pellation of the public wealth. Thirdly, with re- gard to the sources or funds from whence these instruments, howsoever applied, must be derived, such of them as come under the denomination of persons must be taken out of the whole number of persons that are in the community, that is, out of the total population of the state: so that the greater the population, the greater may ceteris paribus be this branch of the public wealth; and the less the less. In like manner, such as come under the denomination of things may be, and most of them commonly are, taken out of the sum total of those things which are the separate properties of the several members of the com- munity: the sum of which properties may be termed the national wealth*: so that the greater looked upon as being no longer members of the state, but as standing altogether upon a footing with external adversaries. Give force enough to robbery, and it swells into rebellion: give permanence enough to rebellion, and it settles into hos- tility.
* It must be confessed, that in common speech the dis- tinction 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 Chai'. XVI.
80 DIVISION OF OFFENCES.
Chap, the national wealth, the greater ceteris paribus, ^ — V — ' may be this remaining branch of the public wealth; and the less, the less. It is here to be observed, that if the influence exerted on any occasion by any individual over the operations of the government be pernicious, it must be in one or other of two ways: 1. By causing, or tending to cause, operations 7iot to be performed which ought to be performed; in other words, by im- pedi?ig 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-mentioned come to be performed, we set out with applying the collective appellation of the government. Among these persons there commonly * is some one person, or body of peram mistaken if the language will furnish any other two words that would express the distinction better. These 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 said necessarily. In the United Provinces, in the Helvetic, or even in the Ger- manic body, where is that one assembly in which an absolute power over the whole resides? where was there in the Roman Commonwealth? I would not undertake for certain to find an answer to all these questions.
DIVISION OF OFFENCES.
81 sons, whose office it is to assign and distribute to ^^y^' the rest their 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 function in his stead. Where there is any such person, or body of persons, he or it may, according as the turn of the phrase requires, be termed the sovereign, or the savereigtity. 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 offoiccs against ex- ternal security, we may understand such offences whereof the tendency is to bring upon the public a mischief resulting from the hostilities of foreign adversaries. By offences against 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 92 DIV^ION OF OFFENCES.
are calculated to prevent. By offences against the prerenth'e branch of the police, such offences where- of the tendency is to impede or misdirect the operations of that power which is employed in guarding against mischiefs resulting from the delinquency of internal adversaries, by expedients that come to be applied before-hand; or of that which is employed in guarding against the mis- chiefs that might be occasioned by physical cala- mities. By offences against the public force, such offences whereof the tendency is to impede or misdirect the operations of that power which is destined to guard the public from the mischiefs which may result from the hostility of foreign adversaries, and, in case of necessity, in the ca- pacity of ministers of justice, from mischiefs of the number of those which result from the delin- quency of internal adversaries.
By offences against the increase of the iiational felicity, such offences whereof the tendency is to impede or misapply the operations of those powers that are employed in the conducting of various establisments, which are calculated to make, in so many different ways, a positive ad- dition to the stock of pubhc happiness. By of- fences against the public wealth, such offences whereof the tendency is to diminish the amount or misdirect the application of the money, and other articles of wealth, which the government reserves as a fund, out of which the stock of in- DIVISION OF OFFENCES. 83 struments employed in the service above-men- tioned may be kept up. By offences against po- pulation, such offences whereof the tendency is to diminish the numbers or impair the political value of the sum total of the members of the com- munity. By offences against the national wealth such offences whereof the tendency is to diminish the quantity, or impair the value, of the things which compose the separate properties or estates of the several members of the community.
XVIII.
In this deduction, it may be asked, what place Connection qJ offences is left for jxUgion? This we shall see presently, against re- For combating the various kinds of offences above the forego- enumerated, that is, for combating all the offences '"^ (those not excepted which we are now about considering) which it is in man's nature to com- mit, the state has two great engines, punishment and reward: punishment, to be applied to all, and upon all ordinary occasions: reward, to be applied to a few, for particular purposes, and upon extraordinary occasions. But whether or no a man has done the act which renders him an object meet for punishment or reward, the eyes of those, whosoever they be, to whom the 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 ^'^ DIVISION OF OFFENCES.
^^^^^- useful, (without which the t?'uth 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 enumerated kinds of offences; that is, all kinds of offences whatsoever. Acts that appear to have this tendency may be styled of- fences against religion. Of these then may be composed the tenth division of the class of of- fences against the state f.
* See par. xvii. with regard to justice.
t It may be observed, that upon this occasion I consider religion in no other light, than in respect of the influence it may have on the happiness of, the present life. As to the effects it may have in assuring us of and preparing us for, a DIVISION OF OFFENCES.
85 YTY Chap.
AlA. j^^j If there be any acts which appear liable to ^^^^^^^^^j^ affect the state in any one or more of the above °f offences •' against trie ways, by operating in prejudice of the external national in- security of the state, or of its internal security; general wiih 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 the 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 comes 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 Ais? a/)%i)/A6a2ra. 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 political view, it is only because those others are mischievous, that offences against religion are so too.
86 DIVISION OF OFFENCES.
Chap, they will affect it most, nor but that, according '' — V — ' to contingencies, they may affect it in one of these ways only or in another; such acts may be collected together under a miscellaneous division by themselves, and styled offences against the na- tional ifitercst in general. Of these then may be composed the eleventh and last division of the class of offences against the state.
XX.
SHb-divi- w^e come now to class the fifth: consisting of sions of ^ Ciass5enu- multiforiu offcuccs. Thcsc, as has been already merated.
1. Divisions intimated, are either offences by falsehood, or ofof offences. ttiiiii» by false- fcnccs concemiug trust. Under the head oi offences by falsehood, may be comprehended, 1. Simple falsehoods. 9.. Forgery. 3. Personation. 4. Perjury*. Let us observe in what particulars * This division of falsehoods, it is to be observed, is not regularly drawn out: that being what the nature of the case will not here admit of. Falsehood may be infinitely diversified in other ways than these. In a particular case, for instance, simple falsehood when uttered by writing, is distinguished from the same falsehood when uttered by word of mouth; and has had a particular name given to it accordingly. I mean, where it strikes against reputation; in which case, the instrument it has been uttered by has been called a ii6e/. Now it is obvious, that in the same manner it might have re- ceived a distinct name in all other cases where it is uttered by writing. But there has not happened to be any thing in particular that has disposed mankind in those cases to give it such a name. The case is, that among the infinity of cir- DIVISION or OFFENCES. 87 these four kinds of falsehood agree, and in what ^"^p. they differ. ^ — v — ' XXI.
Offences by falsehood, however diversified in Oflfences by falsehood, other particulars, have this in common, that they inwhattiiey consist in some abuse of the faculty of discourse, one 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 things are otherwise than as in reality they are.
XXII.
Personation, forgery, and perjury, are each 0^^^"^^^^'^ them distinguished from other modes of uttering falsehood by certain special circumstances. When a falsehood is not accompanied by any of those circumstances, it may be styled simple falsehood. These circumstances are, 1. The /o?v« in which cumstances by which it might have been diversified, those which constitute it a hbel, happen to have engaged a pecu- har share of attention on the part of the institutors of lan- o-uage; either in virtue of the influence which these circum- stances have on the tendency of the act, or in virtue of any particular degree of force with which on any other account they may have disposed it to strike upon the imagination. * See B. I. tit. [Falsehoods.]
88 DIVISION OF OFFENCES.
Ch^p. the falsehood is uttered. 2. The circumstance of ^ — V — ' its relating or not to the identity of the pej^son of him who utters it. 3. The solemnity of the oc- casion on which it is uttered*. The particular application of these distinctive characters may more commodiously be reserved for another place f.
XXIII.
Sub-divi- ^'g come now to the sub-divisions of offences sions of of- fences by |3y falsehood. These will brinff us back into the lalseliooo '' <-> are deter, rcffular track of analysis, pursued, without dethe divi- viation, through the four preceding- classes.
sions of the °...
preceding By whatcvcr mcaus a mischief is brought about, whether falsehood be or be not of the number, the individuals liable to be affected by it must either be assignable or unassignable. If assignable, there are but four material articles in respect to which they can be affected: to wit, their persons their properties, their reputations, and their 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 circumstances 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 see, to characterixe the several species of each genus. See B. I. tit. [Falsehoods.]
t Ibid.
DIVISION OF OFFENCES. «^9