whole number of members of the state. If the Chap. 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 against 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.
XXIV.
It is the common property, then, of the offences offences of that belong to this division, to run over the same some h> '" ground that is occupied by those of the preced- change their ing classes. But some of them, as we shall see, "J^^gl^JJ 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 this 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 90 DIVISION OF OFFENCES.
Chap, the help of which the offence is committed. False- <—.,,^ hood, take it by itself, consider it as not being accompanied by any other material circumstances, nor therefore productive of any material effects, can never, upon the principle of utility, constitute any offence at all. Combined with other cir- cumstances, there is scarce any sort of pernicious effect which it may not be instrumental in pro'- ducing. It is therefore rather in compliance with the laws of language, than in consideration of the nature of the things themselves, that falsehoods are made separate mention of under the name and in the character of distinct offences. All this would appear plain enough, if it were now a time for entering into particulars: but that is what can not be done, consistently with any prin- ciple of order or convenience, until the inferior divisions of those other classes shall have been previously exhibited.
XXV.
A trust— We come now to offences against trust. A trust is, where there is any particular act which one party, in the exercise of some power, or some right*, which is conferred on him, is bound to Power and * Powers, though not a species of rights (for the two sorts n(f coruDlete °^ fictitious entities, termed a power and a right, are altoge- definition ther disparate) are yet so far included under rights, that of them. wherever the word poller may be employed, the word right may also be employed: The reason is, that wherever you may speak of a person as having a power, you may also speak of what.
DIVISION OF OFFENCES. 91 perform for the benefit of another. Or, more Chap. fully, thus: A party is said to be invested with a ' — v — ' him as having a right to such power: but the converse of this proposition does not hold good: there are cases in Avhich, though you may speak of a man as having a right, you can not speak of him as having a power, or in any other way make any mention of that word. On various occasions you have a right for instance, to the services of the magis- trate: but if you are a private person, you have no power over him: all the power is on his side. This being the case, as the word right was employed, the word power might, per- haps, without any deficiency in the sense, have been omitted On the present occasion however, as in speaking of trusts this word is commonly made more use of than the word right, it seemed most eligible, for the sake of perspicuity, to insert them both.
It may be expected that, since the word trust has been here expounded, the words power and right, upon the mean- ing of which the exposition of the word trust is made to depend, should be expounded also: and certain it is, that no two words can stand more in need of it than these do. Such exposition I accordingly set about to- give, and indeed have actually drawn up: but the details into which I found it ne- cessary to enter for this purpose, were of such length as to take up more room than could consistently be allotted to them in this place. With respect to these words, therefore, and a number of others, such as possession, title, and the like, which in point of import are inseparably connected with them, instead of exhibiting the exposition itself, I must content myself with giving a general idea of the plan which I have pursued in framing it: and as to every thing else, I must leave the import of them to rest upon whatever footing it may happen to stand upon in the apprehension of each reader. Power and right, and the whole tribe of fictitious en- 92 DIVISION OF OFFENCES.
Chap, trust, vvlieii, being invested with a power, or with — ^ — ' a right, there is a certain behaviour which, in the tities 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 opposed to it. To know then how to expound a right, carry your eye to the act which, in the circumstances in question, would be a violation of that right: the law creates the right by prohibiting that act. Power, whether over a man's own person, or over other persons, or over things, is constituted in the first instance by permission: but in as far as the law takes an active part in corroborating it, it is created by pro- hibition, and by command: by prohibition of such acts (on the part of other persons) as are judged incompatible with the exercise of it; and upon occasion, by command of such acts as are judged to be necessary for the removal of such or such obstacles of the number of those which may occur to impede the exercise of it. For every right which the law confers on one party, whether that party be an indi- vidual, a subordinate class of individuals, or the public, it thereby imposes on some other party a duty or obligation But there may be laws which command or prohibit acts, that is, impose duties, without any other view than the benefit of the agent: these generate no rights: duties, therefore, may be either extra-regarding or self-regarding: extra-regarding have rights to correspond to them: self-regarding, none. That the exposition of the words power and right must, in DIVISION OF OFFENCES. 93 XVI.
exercise of that power, or of that right, he is Ch^^- bound to maintain for the benefit of some 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 different 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 pre^nt 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 some further lights respecting the course to be taken for developing the notions to be annexed to the words right and power, may incidentally be collected. See in particular, § 3. and 4. See also par. 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 94 DIVISION OF OFFENCES.
party. In such case, the party first mentioned is styled a trustee: for the other party, no name has ever yet been found: for want of a name, there seems to be no other resource than to give a new and more extensive sense to the word benefi- 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, obligation, 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 illustrated 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 ^ still eUiptical, and to the 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 cree: he to whose use the trust or benefit is created. In a particular case, a cestuy que trust is called by the Roman law, Jidei- commissarius. In imitation of this, I have seen him some- where or other called in English di fide-committee. This term however, seems not very expressive. A fide-committee, or, as it should have been, a ^dei-committee, seems, literally t See Fragment of Governineiit, ch. v. $ 6, note.
DIVISION OF OFFENCES. 95 The trustee is also said to have a trust con- ferred or imposed upon him, to be invesied with a trust, to have had a trust given him to execute, to perform, to discharge, or to fulfil. The party to be benefitted, is said to have a trust established or created in his favour: and so on through a variety of other phrases. Offences against XXVI.
Now it may occur, that a trust is oftentimes speaking-, to mean one who is committed to the good faith of another. Good faith seems to consist in the keeping of a promise. But a trust may be created without any promise in the case. It is indeed common enough to exact a promise, in order the more effectually to oblige a man to do that which he is made to promise he will do. But this is merely an accidental circumstance. A trust may be created without any such thing. What is it that constitues a legal obliga- tion in any case? A command, express or virtual, together with punishment appointed for the breach of it. By the same means may an obligation be constituted in this case as well as any other. Instead of the word beneficiary, which 1 found it necessary to adopt, the sense would be better ex- pressed by some such word as beneficiendary, (a word anala- gous in its formation to referendary) were it such an one as the ear could bring itself to indure. This would put it more effectually out of doubt, that the party meant was the party who ought to receive the benefit, whether he actually receives it or no: whereas the word heneficiary might be understood to intimate, that the benefit, was actually received: while in offences against trust the mischiefs commonly is, that such benefit is reaped not by the person it was designed for, but by some other: for instance, the trustee.
s'ons.
96 DIVISION OF OFFENCES.
Chap, spokeii of as Q specics of condition *; that a trust ' — V — ' is also spoken of as a species of property: and dition, and that a Condition itself is also spoken of in the property, '■ why ranked same Hffht. It mav be thought, therefore, that under sepa-,...rate divi- 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 contains 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 critically 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. the con- dition of a trustee. We speak of the condition of a trustee as we speak of the condition of a husband or a father.
DIVI'SION OF OFFENCES. ^* trusts as such are exposed: to all these offences every sort of condition will be found exposed: at the same time that particular species of the of- fences against trust will, upon their application to particular conditions, receive different parti- cular denominations. It will appear also, that of the two groupes of offences into which the list of those against trust will 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 trust, 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 9S DIVISION OF OFFENCES.
CHAf- 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 be included under the denomination of offences against con- dition. The offences which by this latter ap- pellation would be brought to view, would be 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 tendency: 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, 9j^J- therefore, that the principal 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 them 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 in 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- 99 100 DIVISION OF OFFENCES.
Chap. fencGS which though with unquestionable pro- ' — V — ' 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 else: whatever obligations or burthens may, by accident, stand annexed to it, yet in itself it can never be otherwise than beneficial. On the part of the proprietor, it is created not by any com- mands that are laid on him, 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 DIVISION OF OFFENCES.
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 object, this difficulty, and this confusion would not have occurred. But the import of the phrase object of property, 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 DIVISION OF OFFENCES.
^xvi' ^*^^^» ^* ^^^ ^^ several cases been not practicable, ■ "^ — ' or not agreeable, to bring to view, under the appellation 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 in whom they have their commencement. Yet something which could be spoken of under that appellation, was ab- solutely requisite *. The expedient then has been * It is to be observed, that in Gommon 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 hav(# made that part of it which consists of the words amarCs property, perform the office of the whole. In some cases then it was only on a part of the object that the acts in question might be performed: and to say, on this account, that the object was a man's property, was as much as to intimate that they might be performed on any part. In other cases it was only certain particular acts that might be exercised on the object: and to say of the object that it was his pro- perty, was as much as to intimate that any acts whatever might be exercised on it. Sometimes the acts in question were not to be exercised but at a future time, nor then, perhaps, but in the case of the happening of a particular event, of which the happening was uncertain: and to say of an object that it was his property, was as much as to intimate that the acts in question might be exercised on it at any time. Some- times the object on which the acts in question were to have their termination, or their commencement, was a human creature: and to speak of one human creature as being the