DIVISION OF OFFENCES. 103 to create, as it were, on every occasion, an ideal being-, and to assign to a man this ideal being for the object of his property: and these are the sort of objects to which men of science, in taking a view of the operations of the law in this behalf, came, in process of time, to give the name of incorporeal. Now of these incorporeal objects of property the variety is prodigious. Fictitious entities of this kind have been fabricated almost out of every thing: not conditions only (that of a trustee included) but even reputation have been of the number. Even liberty has been considered in this same point of view: and though on so many occasions it is contrasted with property, yet on other occasions, being reckoned into the caproperty of another is what would shock the ear every where but where slavery, is established, and even there, when ap- plied to persons in any other condition than that of slaves. Among the first Romans, indeed, the wife herself was the property of her husband; the child, of his father; the servant, of his master. In the civilized nations of modern times, the two first kinds of property are altogether at an end: and the last, unhappily not yet at an end, but however verging, it is to be hoped, towards extinction- The hus- band's property, is now the company * of his wife; the father's the guardianship and service of his child; the master's, the service of bis servant: * The consortium, sajs the English Law.
DIVISION OF OFFENCES.
^^j"- talogue of possessions, it seems to have been con- """"^'^ — ' sidered as a branch of property. Some of these apphcations of the words property, object of pro- perty, (the last, for instance) are looked upon, indeed, as more figurative, and less proper than the rest: but since the truth is, that where the immediate object is incorporeal, they are all of them improper, it is scarce practicable any where to draw the line.
Notwithstanding all this latitude, yet, among the relations in virtue of which you are said to be possessed of a condition, there is one at least which can scarcely, by the most forced construc- tion, be said to render any other man, or any other thing, the object of your property. This is the right of persevering in a certain course of action; for instance, in the exercising of a certain trade. Now to confer on you this right, in a certain de- gree at least, the law has nothing more to do than barely to abstain from forbidding you to exercise it. Were it to go farther, and, for the sake of enabling you to exercise your trade to the greater advantage, prohibit others from exercising the like, then, indeed, persons might be found, who in a certain sense, and by a construction rather forced than otherwise, might be spoken of as being the objects of your property: viz. by being made to render you that sort of negative service which consists in the forbearing to do those acts which DIVISION OF OFFENCES.
would lessen the profits of your trade. But the ordinary right of exercising any such trade or pro- fession, as is not the object of a monopoly, imports no such thing; and yet, by possessing this right, a man is said to possess a condition: and by for- feiting it, to forfeit his condition.
After all, it will be seen, that there must be cases in which, according to the usage of lan- guage, the same offence may, with more or less appearance of propriety, be referred to the head of offences against condition, or that of offences against property indifferently. In such cases the following rule may serve for drawing the line. Wherever, in virtue of your possessing a pro- perty, or being the object of a property possessed by another, you are characterised, according to the usage of language, by a particular name, such as master, servant, husband, wife, steward, agent, attorney, or the like, there the word condition may be employed in exclusion of the word property: and an offence in which, in virtue of your bear- ing such relation, you are concerned, either in the capacity of an offender, or in that of a party injured, may be referred to the head of offences against condition, and not to that of offences against property. To give an example: Being bound, in the capacity of land steward to a certain person, to oversee the repairing of a certain bridge, you forbear to do so: in this case, as the services 106 DIVISION OP OFFENCES.
you are bound to render are of the number of those which give occasion to the party, from whom they are due, to be spoken of under a certain generical name, viz. that of land steward, the offence of withholding them may be referred to the class of offences against condition. But sup- pose that, without being engaged in that general and miscellaneous course of service, which with reference to a particular person would deno- minate you his land steward, you were bound, whether by usage or by contract, to render him that single sort of service which consists in the providing, by yourself or by others, for the re- pairing of that bridge: in this case, as there is not any such current denomination to which, in virtue of your being bound to render this service^ you stand aggregated (for that of architect, ma- son, or the like, is not here in question) the of- fence you commit by withholding such service can not with propriety be referred to the class of offences against condition: it can only therefore be referred to the class of offences against pro- perty.
By way of further distinction, it may be re- marked, that where a man, in virtue of his being bound to render, or of others being bound to render him, certain services, is spoken of as pos- sessing a condition, the assemblage of services is generally so considerable, in point of duration, as DIVISION OF OFFENCES. 107 to constitute a course of considerable length, so Cuap.
. XVI, as on a variety of occasions to come to be varied ' — v — ' and repeated: and in most cases, when the con- dition is not of a domestic nature, sometimes for the benefit of one person, sometimes for that of another. Services which come to be rendered to a particular person on a particular occasion, especially if they be of short duration, have sel- dom the effect of occasioning either party to be spoken of as being invested with a condition. The particular occasional services which one man may come; by contract or otherwise, to be bound to render to another, are innumerably various: but the number of conditions which have names may be counted, and are, comparatively, but few.
If after all, notwithstanding the rule here given for separating conditions from articles of property, any object should present itself which should appear to be referable, with equal pro- priety, to either head, the inconvenience would not be material; since in such cases, as will be seen a little farther on, whichever appellation were adopted, the list of the offences, to which the object stands exposed, would be substantially the same.
These difficulties being cleared up, we now proceed to exhibit an analytical view of the se- veral possible offences against trust.
108 DIVISION OF OFFENCES.
XXVII.
Offences Offciices against trust may be distinguished, in against trust the first place, into such as concern the existence — their con- ^ nection with of the trust in the hands of such or such a person, each other. ^ and such as concern the exercise of the functions that belong to it*. First then, with regard to * We shall have occasion, a little farther on, to speak of the person in whose hands the trust exists, under the de- scription of the person who possesses, or is in possession of it, and thence of the possession of the trust abstracted from the consideration of the possessor. However different the expression, the import is in both cases the same. So irre- gular and imperfect is the structure of language on this head, that no one phrase can be made to suit the idea on all the occasions on which it is requisite it should be brought to view: the phrase must be continually shifted, or new modi- fied: so likewise in regard to conditions, and in regard to property. The being invested with, or possessing a condi- tion: the being in possession of an article of pjoperty, that is, if the object of the property be corporeal; the having a legal title (defeasible or indefeasible) to the physical possession of it, answers to the being in possession of a trust, or the being the person in whose hands a trust exists. In like manner, to the exercise of the functions belonging to a trust, or to a condition, corresponds the enjoyment of an article of pro- perty; that is, if the object of it be corporeal, the occupation.
These verbal discussions are equally tedious and indis- pensable. Striving to cut a new road through the wilds of jurisprudence, I find myself continually distressed, for. want of tools that are fit to work with. To frame a com- plete set of new ones is impossible. All that can be done is, to make here and there a new one in cases of absolute DIVISION OF OFFENCES. 109 such as relate to its existence. An offence of Chap.
XVJ.
this description, like one of any other description, ^ — v — ' if an offence it ought to be, must to some person or other import a prejudice. This prejudice may be distinguished into two branches: 1. That which may fall on such persons as are or should be in- vested with the trust: 2. That which may fall on the persons for whose sake it is or should be in- stituted, or on other persons at large. To begin with the former of these branches. Let any trust be conceived. The consequences which it is in the nature of it to be productive of to the pos- sessor, must, in as far as they are material*, be either of an advantageous or of a disadvantageous nature: in as far as they are advantageous, the trust may be considered as a benefit or privilege: necessity, and for the rest, to patch up from time to time the imperfections of the old.
As to the bipartition which this paragraph sets out with, it must be acknowledged not to be of the nature of those which to a first glance afford a sort of intuitive proof of their being exhaustive. There is not that marked connection and opposition between the terras of it, which subsists between contradictory terms and between terms that have the same common genus. I imagine, however, that upon examination it would be found to be exhaustive notwithstanding: and that it might even be demonstrated so to be. But the de- monstration would lead us too far out of the ordinary track of language.
* See Cap. vii. [Actions.] 111.
110 CLASSES OF OFFENCES.
in as far as they are disadvantageous, it may be considered as a burthen *. To consider it then upon the footing of a benefit. The trust either is of the number of those which ought by law to subsist f; * If advantageous, it will naturally be on account of the powers or rights that are annexed to the trust: if disadvan- tageous, on account of the duties.
t It may seem a sort of anachronism to speak on the present occasion of a trust, condition, or other possession, as one of which it may happen that a man ought or ought not to have had possession given him by the law, for the plan here set out upon is to give such a view all along of the laws that are proposed, as shall be taken from the reasons which there are for making them: the reason then it would seem should subsist before the law: not the law before the reason. Nor is this to be denied: for, unques- tionably, upon the principle of utility, it may be said with equal truth of those operations by which a trust, or any other article of property, is instituted, as of any other operations of the law, that it never can be expedient they should be performed, unless some reason for performing them, deduced from that principle, can be assigned. To give property to one man, you must impose obligation on another: you must oblige him to do something which he may have a mind not to do, or to abstain from doing some- thing which he may have a mind to do: in a word, you must in some way or other expose him to inconvenience. Every such law, therefore, must at any rate be mischievous in the first instance; and if no good effects can be produced to set against the bad, it must be mischievous upon the whole.
Some reasons, therefore, in this case, as in every other, there ought to be. The truth is, that in the case before us, the CLASSES OF OFFENCES. ^ that is, wliich the legislator meant should be Cha^. established; or is not. If it is, the possession ' — v — ' which at any time you may be deprived of, with respect to it, must at that time be either present or to come: if to come (in which case it may be regarded either as certain or as contingent) the investitive event, or event from whence your reasons are of too various and complicated a nature to be brought to view in an analytical outline like the present. Where the offence is of the number of those by which person or reputation are affected, the reasons for prohibiting it lie on the surface, and apply to every man alike, ^ui property ^ before it can be offended against, must be created, and at the instant of its creation distributed, as it were, into parcels of different sorts and sizes, which require to be assigned, some to one man and some to another, for reasons, of which many lie a little out of sight, and which being different in different cases, would take up more room than could con- sistently be allotted to them here. For the present purpose, it is sufficient if it appear, that for the carrying on of the several purposes of life, there are trusts, and conditions, and other articles of property, which must be possessed by somebody: and that it is not every article that can, nor every article that ought, to be possessed by every body. What articles ought to be created, and to what persons, and in what cases they ought to be respectively assigned, are questions which cannot be settled here. Nor is there any reason for wishing that they could, since the settling them one way or another is what would make no difference in the nature of any offence whereby any party may be ex- posed, on the occasion of any such institution to sustain a detriment.
CLASSES OF OFFENCES.
^xvh possession of it should have taken its commence- ^' ' ment, was either an event in the production of which the will of the offender should have been instrumental, or any other event at large: in the former case, the offence may be termed wrongful non-itivestment of trust: in the latter case, wrongful interception of trust*. If at the time of the of- fence whereby you are deprived of it, you were already in possession of it, the offence may be stiled wrongful divestment of trust. In any of these cases, the effect of the offence is either to put somebody else into the trust, or not: if not, it is wrongful divestment, wrongful interception, or wrongful divestment, and nothing more: if it be, the person put in possession is either the * In the former case it may be observed, the act is of the negative kind: in the latter, it will commonly be of the positive kind.
As to the expression non-investment of trust, I am sensible that it is not perfectly consonant to the idiom of the lan- guage: the usage is to speak of a person as being invested (that is clothed) with a trust, not of a trust as of a thing, that is li&eM invested, or put on. The phrase at length would be, the non-investment of a person with a trust: but this phrase is by much too long-winded to answer the purpose of an appellative. I saw, therefore, no other resource than to venture upon the ellipsis here employed. The antient law- yers, in the construction of their appellatives, have indulged themselves in much harsher ellipsises without scruple. See above, xxv. note. It is already the usage to speak of a trust as a thing that vests^ and as a thing that may be divested.
DIVISION OF OFFENCES.
wrong doer himself, in wliich case it may be stiled ^^"^^'•• usurpation of trust; or some other person, in which ' ^ case it may be stiled zororigful investment, or attri- bution, of trust. If the trust in question is not of the number of those which ought to subsist, it depends upon the manner in which one man de- prives another of it, whether such deprivation shall or shall not be an offence, and, accordingly, whether non-investment, interception, or divest- ment, shall or shall not be wrongful. But the putting any body into it must at any rate be an offence: and this offence may be either usurpation or wrongful investment, as before.
In the next place, to consider it upon the footing of a burthen. In this point of view, if no other interest than that of the persons liable to be invested with it were considered, it is what ought not, upon the principle of utility, to subsist: if it ought, it can only be for the sake of the persons in whose favour it is established. If then it ought not on any account to subsist, neither non-investment, interception, nor divest- ment, can be wrongful with relation to the persons first-mentioned, whatever they may be on any other account, in respect of the manner in which they happen to be performed: for usurpa- tion, though not likely to be committed, there is the same room as before: so likewise is there for wrongful investment; which, in as far as the trust is considered as a burthen, may be stiled VOL. II. I 114 DIVISION OF OFFENCES.
wrongful imposition of trust. If the trust, being still of the burthensome kind, is of the number of those which ought to subsist, any offence that can be committed, with relation to the existence of it, must consist either in causing a person to be in possession of it, who ought not to be, or in causing a person not to be in possession of it who ought to be: in the former case, it must be either usurp- ation or wrongful divestment, as before: in the latter case, the person who is caused to be not in possession, is either the wrong doer himself, or some other: if the wrong doer himself, either at the time of the offence he was in possession of it, or he was not: if he was, it may be termed wrongful abdication of trust; if not, wrongful de- trectation* or non-assumption: if the person, whom the offence causes not to be in the trust, is any other person, the offence must be either wrongful divestment, wrongful non-investment, or wrongful interception, as before: in any of which cases, to consider the trust in the light of a burthen, it might also be stiled wrongful eiernption from i7^ust.
Lastly, with regard to the prejudice which the persons for whose benefit the trust is instituted, * [Detrectation.] I do not find that this word has yet been received into the English language. In the Latin, however, it is very expressive, and is used in a sense exactly suitable to the sense here given to it. Militiam detrectare, to endeavour to avoid serving in the army, is a phrase not unfrequently met with in the Roman writers.
DIVISION OF OFFENCES. H^ or any other persons whose interests may come ^«*p- to be affected by its existing or not existing in ' — v — ' such or such hands, are liable to sustain. Upon examination it will appear, that by every sort of offence whereby the persons who are or should be in possession of it are liable, in that respect, to sustain a prejudice, the persons now in ques- tion are also liable to sustain a prejudice. The prejudice, in this case, is evidently of a very different nature from what it was of in the other: but the same general names will be applicable in this case as in that. If the beneficiaries, or per- sons whose interests are at stake upon the exer- cise of the trust, or any of them, are liable to sustain a prejudice, resulting from the quality of the person by whom it may be filled, such preju- dice must result from the one or the other of two causes: 1. From a person's having the possession of it who ought not to have it: or 2. From a person's not having it who ought: whether it be a benefit or burthen to the possessor, is a circum- stance that to this purpose makes no difference. In the first of these cases the offences from which the prejudice takes its rise are those of usurpa- tion of trust, wrongful attribution of trust, and wrongful imposition of trust: in the latter, wrong- ful non-investment of trust, wrongful interception of trust, wrongful divestment of trust, wrongful abdication of trust, and wrongful detrectation of trust.
116 DIVISION OF OFFENCES.
Chap. So iiiuch for the offences which concern the "^ — V — ' existence or possession oi a trust: those wnicn concern the exercise of the functions that belong to it may be thus conceived. You are in posses- sion of a trust: the time then for your acting in it must, on any given occasion, (neglecting, for simplicity's sake, the then present instant) be either past or yet to come. If past, your conduct on that occasion must have been either conforma- ble to the purposes for which the trust was insti- tuted, or unconformable: if conformable, there has been no mischief in case: if unconformable, the fault has been either in yourself alone, or in some other person, or in both: in as far as it has lain in yourself, it has consisted either in your not doing something which you ought to do, in which case it may be stiled negative breach of trust; or in your doing something which you ought not to do: if in the doing something which you ought not to do, the party to whom the prejudice has accrued is either the same for whose benefit the trust was instituted, or some other party at large: in the former of these cases, the offence may be stiled positive bredch of trust; in the other abuse of trust*.
* What is here meant by abuse of trust, is the exercise of a power usurped over strangers, under favour of the powers properly belonging to the trust. The distinction between what is here meant by breach of trust, and what is here meant by abuse of trust, is not very steadily observed in com- mon speech: and in regard to public trusts, it will even in DIVISION OF OFFENCES. 1 17 In as far as the fault lies in another person, the Chav.
7 XVT.
offence on his part may be stiled disturbance of ' — v — ' trust. Supposing the time for your acting in the trust to be yet to come, the effect of any act which tends to render your conduct unconformable to the purposes of the trust, may be either to render it actually and eventually unconformable, or to produce a chance of its being so. In the former of these cases, it can do no otherwise than take one or other of the shapes that have just been men- tioned. In the latter case, the blame must lie either in yourself alone, or in some other person, or in both together, as before. If in another per- son, the acts whereby he may tend to render your conduct unconformable, must be exercised either on yourself, or on other objects at large. If ex- ercised on yourself, the influence they possess must many cases be imperceptible. The two offences are, however, in themselves perfectly distinct: since the persons, by whom the prejudice is suffered, are in many cases altogether dif- ferent. It may be observed, perhaps, that with regard to abuse of trust, there is but one species here mentioned; viz. that which corresponds to positive breach of trust: none being mentioned as corresponding to negative breach of trust. The reason of this distinction will presently appear. In fa- vour of the parties, for whose benefit the trust was created, the trustee is bound to act; and therefore merely by his doing nothing they may receive a prejudice: but in favour of other persons at large he is not bound to act: and therefore it is only from some positive act on his part that any pre- judice can ensue to them.
IIB DIVISION OF OFFENCES.
Chap, either be such as operates immediately on your ^ — V — ' body, or such as operates immediately on your mind. In the latter case, again, the tendency of them must be to deprive you either of the know- ledge, or of the power, or of the inclination*, which would be necessary to your maintaining such a conduct as shall be conformable to the purposes in question. If they be such, of which the tendency is to deprive you of the inclination in question, it must be by applying to your will the force of some seducing motive f. Lastly, This mo- tive must be either of the coerc'i've, or of the alluring kind; in other words, it must present itself either in the shape of a mischief or of an advantage. Now in none of all the cases that have been mentioned, except the last, does the offence receive any new denomination; according to the event it is either a disturbance of trust, or an abortive attempt to be guilty of that offence. In this last it is termed bribery; and it is that particular species of it which may be termed active bribery, or bribe- giving. In this case, to consider the matter on your part, either you accept of the bribe, or you do not: if not, and you do not after- wards commit, or go about to commit, either a breach or an abuse of trust, there is no offence, on your part, in the case: if you do accept it, whether