* See infra; and eh. xviii. [Indirect Legislation.] t See ch. xi. [Dispositions] xxix.
DIVISION OF OFFENCES.
you eventually do or do not commit the breach or Ci^r- the abuse which it is the bribe-givers intention you ' — ■^^ — should commit, you at any rate commit an offence which is also termed bribery: and which, for dis- tinction sake may be termed passive bribery, or bribe-taking*. As to any farther distinctions, they will depend upon the nature of the par- ticular sort of trust in question, and therefore belong not to the present place. And thus we have thirteen sub-divisions of offences against trust:. viz. 1. Wrongful non-investment of trust 2. Wrongful interception of trust. 3. Wrongful divestment of trust. 4. Usurpation of trust- 5. Wrongful investment or attribution of trust- 6. Wrongful abdication of trust. 7- Wrongful detrectation of trust. 8. Wrongful imposition of trust. 9. Negative breach of trust. 10. Posi- tive breach of trust. 1 ]. Abuse of trust. 12. Dis- turbance of trust. 1 3. Bribery.
* To bribe a trustee, as such, is in fact neither more nor less than to suborn him to be ^ilty of a breach or an abuse of trust. Now subornation is of the number of those accessory offences which every principal offence, one as well as another, is liable to be attended with. See infra, and B. 1. tit. [Ac- cessory offences.] This particular species of subornation however, being one that, besides its having a specific name framed to express it, is apt to engage a particular share of attention, and to present itself to view in company with other offences against trust, it would have seemed an omission not to have included it in that catalogue.
120 DIVISION OF OFFENCES.
Chap. XXVIII.
XVI.
' — V — ' From what has been said, it appears that there ProdifHiity i /v.
in trustees cannot be any other offences, on the part of a Class 3. trustee, by which a beneficiary can receive on any particular occasion any assignable specific preju- dice. One sort of acts, however, there are by which a trustee may be put in some danger of re- ceiving- a prejudice, although neither the nature of the prejudice, nor the occasion on w^hich he is in danger of receiving it, should be assignable. These can be no other than such acts, whatever they may be, as dispose the trustee to be acted upon by a given bribe with greater effect than any with which he could otherwise be acted upon: or in other words, which place him in such circum- stances as have a tendency to encrease the quan- tum of his sensibility to the action of any motive of the sort in question*. Of these acts, there seem to be no others, that will admit of.a descrip- tion applicable to all places and times alike, than acts o^ prodigality on the part of the trustee. But in acts of this nature the prejudice to the beneficiary is contingent only and unliquidated; w^hile the prejudice to the trustee himself is certain and liquidated. If therefore on any occasion it should be found adviseable to treat it on the footing of an offence, it will find its place more naturally in the class of self-regarding ones.
* See ch. vi. [Sensibility] ii.
DIVISION OF OFFENCES. 121 XXIX. Chap.
XVI.
As to the sub-divisions of offences against trust,..^^ — v — ' these are perfectly analogous to those of offences divisions of ^ '' '^ offences by falsehood. The trust may be private, semi-pub- against trust are also delic, or public: it may concern property, person, temiined by , the divisions reputation, or condition; or any two or more oi ot tiie pre- those articles at a time: as will be more particu- classes. larly explained in another place. Here too the offence, in running over the ground occupied by the three prior classes, will in some instances change its name, while in others it will not.
XXX.
XXX.
Lastly, If it be asked. What sort of relation there Connection subsists between falsehoods on one hand, and fences by ' offences concerning trust on the other hand; the an?offences answer is, they are altogether disparate. False- ''^^"'^'^™*^' hood is a circumstance that may enter into the composion of any sort of offence, those concerning trust, as well as any other: in some as an acci- dental, in others as an essential instrument. Breach or abuse of trust are circumstances which, in the character of accidental concomitants, may enter into the composition of any other offences (those against falsehood included) besides those to which they respectively give name.
^^^ DIVISION OF OFFENCES.
Genera of Class I.
XXXI.
Anaij^sisinto Retummff now to class the first, let us pursue genera pur-...sued no far- the distribution a step farther, and branch out the Class 1. several divisions of that class, as above exhibited, into their respective genera, that is, into such mi- nuter divisions as are capable of being charac- terised by denominations of which a great part are already current among the people *. In this place the analysis must stop. To apply it in the same regular form to any of the other classes seems scarcely practicable: to semi-public, as also to public offences, on account of the interference of local circumstances: to self-regarding ones, on account of the necessity it would create of de- ciding prematurely upon points which may appear liable to controversy: to offences by falsehood, and offences against trust, on account of the de- pendence there is between this class and the three former. What remains to be done in this way, * In the enumeration of these genera, it is all along to be observed, that offences of an accessory nature are not men- tioned; except unless it be here and there where they have obtained current names which seemed too much in vogue to be omitted. Accessory offences are those which, without being the very acts from which the mischief in question takes its immediate rise, are, in the way of causality, connected with those acts. See ch. vii. [Actions] xxiv. and B. I. tit. [Accessory offences.]
DIVISION OF OFFENCES. l*^ with reference to these four classes, will require Chap. discussion, and will therefore be introduced with ' — v — ' more propriety in the body of the work, than in a preliminary part, of which the business is only to draw outlines.
XXXII.
An act, by which the happiness of an individual Offences is disturbed, is either simple in its effects or comple.v. individual may be sim- It may be stiled simple in its effects, when it pie in tiieir cficcls or affects him in one only of the articles or points in complex. which his interest, as we have seen, is liable to be affected: complex, when it affects him in several of those points at once. Such as are simple in ther effects must of course be first considered.
XXXIII.
XXXIII.
In a simple way, that is in one way at a time, a Offences man's happiness is liable to be disturbed either son— the^r ]. By actions referring to his own person itself; ^^°^'^^* or 2. By actions referring to such external objects on which his happiness is more or less dependent. As to his own person, it is composed of two dif- ferent parts, or reputed parts, his body and his mind. Acts which exert a pernicious influence on his person, whether it be on the corporeal or on the mental part of it, will operate thereon either immediately, and without affecting his will, or me- diately, through the intervention of that faculty: viz. by means of the influence which they cause his will to exercise over his body. If with the inter- vention of his will, it must be by mental coercion: DIVISION OF OFFENCES.
that is, by causing him to will to maintain, and thence actually to maintain, a certain conduct which it is disagreeable, or in any other way per- nicious, to him to maintain. This conduct may either be positive or negative *: when positive, the coercion is stiled compulsion or constraint: when negative, restraint. Now the way in which the coercion is diagreeable to him, may be by pro- ducing either pain of body, or only pain of mind. If pain of body is produced by it, the offence will come as well under this as under other denomina- tions, which we shall come to presently. More- over, the conduct which a man, by means of the coercion, is forced to maintain, will be determined either specifically, and originally by the determina- tion of the particular acts themselves, which he is forced to perform or to abstain from, or generally and incidentally, by means of his being forced to be or not to be in such or such a place. But if he is prevented from being in one place, he is con- fined thereby to another. For the whole surface of the earth, like the surface of any greater or lesser body, may be conceived to be divided into two, as well as into any otlier number of parts or spots. If the spot then, which he is confined to, be smaller than the spot which he is excluded from, his condition may be called confinement: if larger, * Ch. vii. [Actions] viii.
DIVISION OF OFFENCES. ^25 banishment*. Whether an act, the effect of which is to exert a pernicious influence on the person of him who suffers by it, operates with or without the intervention of an act of his will, the mischief it produces will either be mortal or jiot mortal. If not mortal, it will either be reparable, that is tem- porary; or irreparable, that is perpetual. If re- parable, the mischievous act may be termed a simple corporal injuty; if irreparable, an irreparable corporal injury. Lastly, a pain that a man expe- riences in his mind will either be a pain of actual sufferance, or a pain of apprehension. If a pain of apprehension, either the offender himself is repre- sented as intending to bear a part in the produc- tion of it, or he is not. In the former case the offence may be stiled menacement: in the latter case, as also where the pain is a pain of actual sufferance, a simple mental injury. And thus we have nine genera or kinds of personal injuries; which, when ranged in the order most commo- dious for examination, will stand as follows; viz. 1. Simple corporal injuries. 2. Irreparable cor- poral injuries. 3. Simple injurious restrainment.
* Of these, and the several other leading expressions which there is occasion to bring to view in the remaining part of this analysis, ample definitions will be found in the body of the work, conceived in terminis legis. To give parti- cular references to these difinitions, v/oiild be incumbering the page to little purpose.
126 DIVISION OF OFFENCES.
* Injurious restrainment at large, and injurious compulsion at large, are here stiled simple, in order to distinguish them from confinement, banishment, robbery, and extortion; all which are, in many cases, but so many modifications of one or other of the two first-mentioned offences.
To constitute an offence an act of simple injurious restrain- ment, or simple injurious compulsion, it is sufficient if the in- fluence it exerts be, in the first place, pernicious; in the next place, exerted on the person by the medium of the will: it is not necessary that that part of the person on which it is ex- erted be the part to which it is pernicious: it is not even ne- cessary that it should immediately be pernicious to either of these parts, though to one or other of them it must be perni- cious in the long-run, if it be pernicious at all. An act in which the body, for example, is concerned, may be very disa- greeable, and thereby pernicious to him who performs it, though neither disagreeable nor pernicious to his body: for instance, to stand or sit in public with a label on his back? or under any other circumstances of ignominy.
t It may be observed, that wrongful menacement is in- cluded as well in simple injurious restrainment, and simple injurious compulsion, except in the rare case where the mo- tives by which one man is prevented by another from doing a thing that would have been materially to his advantage, or induced to do a thing that is materially to his prejudice, are of the alluring kind.
t Although, for reasons that have been already given, (supra xxxi.) no complete catalogue, nor therefore any ex- DIVISION OF OFFENCES. 123 XXXIV. %^l- We come now to offences against reputation oi^Il^^ haustive view, of either semi-public or self-regarding of- fences, can be exhibited in this chapter, it may be a satisfaction, however, to the reader, to see some sort of list of them, if it were only for the sake of having examples before his eyes. Such lists cannot any where be placed to more advantage than under the heads of the several divisions of private extra-regarding offences, to which the semi-public and self- regarding offences in question respectively corres- pond. Concerning the two latter, however, and the last more particularly, it must be understood that all I mean by insert- ing them here, is to exhibit the mischief, if any, which it is of the nature of them respectively to produce, without deciding upon the question, whether it would be worth while [See ch. xiii. Cases unmeet] in every instance, for the sake of com- bating that mischief, to introduce the evil of punishment. In the course of this detail, it will be observed, that there are several heads of extra-regarding private offences, to which the correspondent heads, either of semi-public or self-re- garding offences, or of both, are wanting. The reasons of these deficiencies will probably, in most instances, be evident enough upon the face of them. Lest they should not, they are however specified in the body of the work. They would take up too much room were they to be inserted here.
I. Semi-public offences through calamity. Calamities, by which the persons or properties of men, or both, are lia- ble to be affected, seem to be as follows: 1. Pestilence or contagion. 2. Famine, and other kinds of scarcity. 3. Mis- chiefs producible by persons deficient in point of under- standing, such as infants, idiots, and maniacs, for want of their being properly taken care of. 4. Mischief producible by the ravages of noxious animals, such as beasts of prey.
128 DIVISION OF OFFENCES.
Chap, merely. These require but few distinctions. In "■ — V — ' point of reputation there is but one way of sufferlocusts, &c. &c. 5. Collapsion, or fall of large masses of solid matter, such as decayed buildings, or rocks, or masses of snow, 6. Inundation or submersion. 7. Tempest^ 8. Blight. 9. Conflagration. 10. Explosion. In as far as a man may contribute, by any imprudent act of his, to give birth to any of the above calamities, such act may be an offence. In as far as a man may fail to do what is incumbent on him to do towards preventing them, such failure may be an offence.
II. Semi-public offences of mere delinquency. A whole neighbourhood may be made to suffer, 1. Simple cor- poral injuries: in other words, they may be made to suffer in point of health, by offensive or dangerous trades or manufac- tures: by selling or falsely puffing off" unwholesome medicines or provisions: by poisoning or drying up of springs, destroy- ing of aqueducts, destroying woods, walls, or other fences against wind and rain: by any kinds of artificial scarcity; or by any other calamities intentionally produced. 2 and 3. Simple injurious restrainraent, and simple injurious compulsion: for instance, by obliging a whole neighbourhood, by dint of threatening hand-bills, or threatening discourses, publicly delivered, to join, or forbear to join, in illuminations, ac- clamations, outcries, invectives, subscriptions, undertakings, processions, or any other mode of expressing joy or grief, displeasure or approbation; or, in short, in any other course of conduct whatsoever 4. and 5. Confinement and banish- ment: by the spoiling of roads, bridges, or ferry-boats: by destroying or unwarrantably pre-occupying public carriages, or houses of accommodation. 6. By menacement: as by in- cendiary letters, and tumultuous assemblies: by newspapers or hands-bills, denouncing vengeance against persons of DIVISION OF OFFENCES. 129 ing, which is by losing a portion of the good-will ^^'^^- of others. Now, in respect of the good-will ' — v — ' which others bear you, you may be a loser in either of two ways: 1. By the manner in which you are thought to behave yourself; and ^. By the manner in which others behave, or are thought to behave, towards you. To cause people to think that you yourself have so behaved, as to have been guilty of any of those acts which cause a man to possess less than he did before of the good-will of the community, is what may be stiled defamation. But such is the constitution of human nature, and such the force of prejudice, that a man merely by manifesting his own want of good-will towards you, though ever so unjust in itself, and ever so unlawfully expressed, may in a manner force others to withdraw from you a particular denominations: for example, against Jews, Catho- lics, Protestants, Scotchmen, Gascons, Catalonians, &c. 7. Simple mental injuries: as by distressful, terrifying, ob- scene, or irreligious exhibitions; such as exposure of sores by beggars, exposure of dead bodies, exhibitions or reports of counterfeit witchcrafts or apparitions, exhibition of ob- scene or blasphemous prints: obscene or blasphemous dis- courses held in public: spreading false news of public defeats in battlC; or of other misfortunes.
III. Self-regarding offences against person. 1. Fasting, Abstinence from venery, self-flagellation, self-mutilation, and other self-denying and self-tormenting practices. 2. Glut- tony, drunkenness, excessive venery, and other species of intemperance. 3. Suicide.
VOL. II. K 130 DIVISION OF OFFENCES.
part of theirs. When he does this by words, or by such actions as have no other effect than in as far as they stand in the place of words, the offence may be stiled vilification. When it is done by such actions as, besides their having this effect, are injuries to the person, the offence may be stiled a personal insult: if it has got the length of reaching the body, a corporal insult: if it stopt short before it reached that length, it may be stiled insulting menacement. And thus we have tvjo genera or kinds of offences against reputation merely; to wit, I. Defamation: and, 2. Vilifica- tion, or Revilement*. As to corporal insults, and insulting menacement, they belong to the compound title of offences against person and reputation both together.
XXXV.
Offences If the property of one man suffers by the depropertj-. linqucncy of another, such property either was m trust with the offender, or it was not: if it was in trust, the offence is a breach of trust, and of whatever nature it may be in other respects, may be stiled dissipation in breach of trust, or dissipatioii of property in trust. This is a particular case: the * I. Semi-public offences. 1. Calumniation and vili- fication of particular denominations of persons; such as Jews, Catholics, &c.
II. Self-regarding offences. 1. Incontinence in females- 2. Incest.
DIVISION OF OFFENCES. 131 opposite one is the more common: in such case the several ways in which property may, by possi- bihty, become the object of an offence, may be thus conceived. Offences against property, of whatever kind it be, may be distinguished, as hath been already intimated *, into such as concern the legal possession of it, or right to it, and such as concern only the enjoyment of it, or, what is the same thing, the exercise of that right. Under the former of these heads come, as hath been already intimated f, the several offences of wrong- ful non-irwestment ^ wrongful interception, wrongful divestment, usurpation, and wrongful attribution. When in the commission of any of these offences a falsehood has served as an instrument, and that, as it is commonly called, a wilful, or as it might more properly be termed, an advised % one, the &^\t\iei fraudulent may be prefixed to the name of the offence, or substituted in the room of the word wrongful. The circumstance of fraudulency then may serve to characterise a particular species, comprisable under each of those generic heads: in like manner the circumstance of force, of which more a little farther on, may serve to characterise another. With respect to wrongful interception in particular, the investitwe event by which the title to the thing in question should have accrued to you, and for want of which such * Supra xxvii. f lb. \ See ch. ix. [Consciousness] ii.
13^ DIVISION OF OFFENCES.
xlY' ^^^^^ ^^' ^^^<^^g^ t^^ delinquency of the offender, ' — V' — ' as it were, intercepted, is either an act of his own, expressing it as his will, that you should be con- sidered by the law as the person who is legally in possession of it, or it is any other event at large: in the former case, if the thing, of which you should have been put into possession, is a sum of money to a certain amount, the offence is that which has received the name of insohency; which branch of delinquency, in consideration of the importance and extent of it, may be treated on the footing of a distinct genus of itself*.
Pa)iment, * The light in which the offence of insolvency is here ex- hibited, may perhaps at first consideration be apt to appear not only novel but improper. It may naturally enough ap- pear, that when a man owes you a sum of money, for in- stance, the right to the money is your's already, and that what he v?ithholds from you by not paying you, is not the legal title to it, possession of it, or power over it, but the physical possession of it, or power over it, only. But upon a more accurate examination this will be found not to be the case. What is meant by payment, is always an act of inves- titive power, as above explained, an expression of an act of the will, and not a piiysical act: it is an act exercised with relation indeed to the thing said to be paid, but not in a physical sense exercised tipon it. A man who owes you ten pounds, takes up a handful of silver to that amount, and lays it down on a table at which you are sitting. If then by words, or gestures, or any means whatever, addressing him- self to you^ he intimates it to be his will that you should take up the money, and do with it as you please, he is said to DIVISION OF OFFENCES. 133 Next, with regard to such of the offences ^■"^^^ ° • XVI.
against property as concern, only the enjoyment ' — v — ' have paid you: but if the Case was, that he laid it down not for that purpose, but for some other, for instance, to count it and examine it, meaning to take it up again himself, or leave it for somebody else, he has not paid you: yet the physical acts, exercised upon the pieces of money in question, are in both cases the same. Till he does express a will to that purport, what you have is not, properly speaking, the legal possession of the money, or a right to the money, but only a right to have him, or in his default perhaps a minister of justice, compelled to render you that sort of service, by the rendering of which he is said to pay you: that is, to express such will as above-mentioned, with regard to some corporeal article, or other of a certain species, and of value equal to the amount of what he owes you: or, in other words, to ex- ercise in your favour an act of investitive power with relation to some such article.
True it is, that in certain cases a man may perhaps not be deemed, according to common acceptation, to havepaH you, without rendering you a further set of services, and those of another sort: a set of services, which are rendered by the exercising of certain acts of a physical nature upon the very thing with which he is said to pay you: to wit, by transfer- ring the thing to a certain place where you may be sure to find it, and where it may be convenient for you to receive it. But these services, although the obligation of rendering them should be annexed by law to the obligation of rendering those other services, in the performance of which the opera- tion of payment properly consists, are plainly acts of a dis- tinct nature • nor are they essential to the operation: by themselves they do not constitute it, and it may be performed without them. It must be performed without them wherever DIVISION OF OFFENCES.
Ch^Y' o^ t^^ object in question. This object must be ' "^ ' either a service, or set of services*, which should have been rendered by some person, or else an article belonging to the class of things. In the former case, the offence may be stiled wrongful zvithkolcling of services f. In the latter case it may admit of farther modifications, which may be thus conceived: When any object which you have had the physical occupation or enjoyment of, ceases, in any degree, in consequence of the act of another man, and without any change made in so much the thing to be transferred happens to be already as much within the reach, physically speaking, of the creditor, as by any act of the debtor it can be made to be.
This matter would have appeared in a clearer light had it been practicable to enter here into a full examination of the nature of property, and the several modifications of which it is susceptible: but every thing cannot be done at once. * Supra xxvi.
t Under wrongful withholding of services is included breach of contract: the obligation to render services may be ground- ed either on contract, or upon other titles: in other words, the event of a man's engaging in a contract is one out of many other investitive events from which the right of receiv- ing them may take its commencement. See ch. xvii. [Limits] Were the word services to be taken in its utmost latitude (negative included as well as positive) this one head would cover the whole law. To this place then are to be referred such services only, the withholding of which does not coin- cide with any of the other offences, for which seperate deno- minations have been provided.
DIVISION OF OFFENCES. 13'