CHAPTER XVI.



DIVISION OF OFFENSES.



§ 2. Divisions and sub-divisions.



XI. Let us see by what method these classes may be farther subdivided. 

First, then, with regard to offences against individuals. 



In the present period of existence, a man's being and wellbeing, his 

happiness and his security; in a word, his pleasures and his immunity from 

pains, are all dependent, more or less, in the first place, upon his own 

person; in the next place, upon the exterior objects that surround him. 

These objects are either things, or other persons. Under one or other of 

these classes must evidently be comprised every sort of exterior object, by 

means of which his interest can be affected. If then, by means of any 

offence, a man should on any occasion become a sufferer, it must be in one 

or other of two ways: 1. absolutely, to wit, immediately in his own person; 

in which case the offence may be said to be an offence against his person: 

or, 2. relatively, by reason of some material relation[7] which the before 

mentioned exterior objects may happen to bear, in the way of causality (see 

ch. vii. Actions, par. 24) to his happiness. Now in as far as a man is in a 

way to derive either happiness or security from any object which belongs to 

the class of things, such thing is said to be his property, or at least he 

is said to have a property or an interest therein: an offence, therefore, 

which tends to lessen the facility he might otherwise have of deriving 

happiness or security from an object which belongs to the class of things 

may be styled an offence against his property. With regard to persons, in as 

far as, from objects of this class, a man is in a way to derive happiness or 

security, it is in virtue of their services: in virtue of some services, 

which, by one sort of inducement or another, they may be disposed to render 

him.[8] Now, then, take any man, by way of example, and the disposition, 

whatever it may be, which he may be in to render you service, either has no 

other connection to give birth or support to it, than the general one which 

binds him to the whole species, or it has some other connection more 

particular. In the latter case, such a connection may be spoken of as 

constituting, in your favour, a kind of fictitious or incorporeal object of 

property, which is styled your condition. An offence, therefore, the 

tendency of which is to lessen the facility you might otherwise have of 

deriving happiness from the services of a person thus specially connected 

with you, may be styled an offence against your condition in life, or simply 

against your condition. Conditions in life must evidently be as various as 

the relations by which they are constituted. This will be seen more 

particularly farther on. In the mean time those of husband, wife, parent, 

child, master, servant, citizen of such or such a city, natural-born subject 

of such or such a country, may answer the purpose of examples.



Where there is no such particular connection, or (what comes to the same 

thing) where the disposition, whatever it may be, which a man is in to 

render you service, is not considered as depending upon such connection, but 

simply upon the good-will he bears to you; in such case, in order to express 

what chance you have of deriving a benefit from his services, a kind of 

fictitious object of property is spoken of, as being constituted in your 

favour, and is called your reputation. An offence, therefore, the tendency 

of which is to lessen the facility you might otherwise have had of deriving 

happiness or security from the services of persons at large, whether 

connected with you or not by any special tie, may be styled an offence 

against your reputation. It appears, therefore, that if by any offence an 

individual becomes a sufferer, it must be in one or other of the four points 

above mentioned; viz. his person, his property, his condition in life, or 

his reputation. These sources of distinction, then, may serve to form so 

many subordinate divisions. If any offences should be found to affect a 

person in more than one of these points at the same time, such offences may 

respectively be put under so many separate divisions; and such compound 

divisions may be subjoined to the preceding simple ones The several 

divisions (simple and compound together) which are hereinafter established, 

stand as follows: 1. Offenses against person. 2. Offenses against 

reputation. 3. Offenses against property. 4. Offenses against condition. 5. 

Offenses against person and property together. 6. Offenses against person 

and reputation together.[9]



XII. Next with regard to semi-public offences. Pain, considered with 

reference to the time of the act from which it is liable to issue, must, it 

is evident, be either present, past, or future. In as far as it is either 

present or past, it cannot be the result of any act which comes under the 

description of a semi-public offence: for if it be present or past, the 

individuals who experience, or who have experienced, it are assignable.[10] 

There remains that sort of mischief, which, if it ever come to exist at all, 

is as yet but future: mischief, thus circumstanced, takes the name of 

danger.[11] Now, then, when by means of the act of any person a whole 

neighbourhood, or other class of persons, are exposed to danger, this danger 

must either be intentional on his part, or unintentional.[12] If 

unintentional, such danger, when it is converted into actual mischief, takes 

the name of a calamity: offences, productive of such danger, may be styled 

semi-public offences operating through calamity; or, more briefly, offences 

through calamity. If the danger be intentional, insomuch that it might be 

produced, and might convert itself into actual mischief, without the 

concurrence of any calamity, it may be said to originate in mere 

delinquency: offences, then, which, without the concurrence of any calamity, 

tend to produce such danger as disturbs the security of a local, or other 

subordinate class of persons, may be styled semi-public offences operating 

merely by delinquency, or more briefly, offences of mere delinquency.



XIII. With regard to any farther sub-divisions, offences through calamity 

will depend upon the nature of the several calamities to which man, and the 

several things that are of use to him, stand exposed. These will be 

considered in another place.[13]



XIV. Semi-public offences of mere delinquency will follow the method of 

division applied to offences against individuals. It will easily be 

conceived, that whatever pain or inconvenience any given individual may be 

made to suffer, to the danger of that pain or inconvenience may any number 

of individuals, assignable or not assignable, be exposed. Now there are four 

points or articles, as we have seen, in respect to which an individual may 

be made to suffer pain or inconvenience. If then, with respect to any one of 

them, the connection of causes and effects is such, that to the danger of 

suffering in that article a number of persons, who individually are not 

assignable, may, by the delinquency of one person, be exposed, such article 

will form a ground of distinction on which a particular sub-division of 

semi-public offences may be established: if, with respect to any such 

article, no such effect can take place, that ground of distinction will lie 

for the present unoccupied: ready, however, upon any change of 

circumstances, or in the manner of viewing the subject, to receive a 

correspondent subdivision of offences, if ever it should seem necessary that 

any such offences should be created.



XV. We come next to self-regarding offences; or, more properly, to acts 

productive in the first instance of no other than a self-regarding mischief: 

acts which, if in any instance it be thought fit to constitute them 

offences, will come under the 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 

while[14] to treat upon the footing 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 

arrangement. Properties for this purpose ought to be such as show themselves 

at first glance, and appear to belong to the subject beyond dispute.



XVI. Public offences may be distributed under eleven divisions.[15] 1. 

Offences against external security. 2. Offences against justice. 3. Offences 

against the preventive branch of the police. 4. Offences against the public 

force. 5. Offences against the positive increase of the national felicity. 

6. Offences against the public wealth. 7. Offences against population. 8. 

Offences against the national wealth. 9. Offences against the sovereignty. 

10. Offences against religion. 11. 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 individuals of which that body is composed, may be thus 

conceived.



XVII. Mischief by which the interest of the public as above defined may be 

affected, must, if produced at all, be produced either by means of an 

influence exerted on the operations of government, or by other means, 

without the exertion of such influence.[16] 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 

instrumentality of some other agents. In the latter case, these agents will 

be either persons or things. Persons again must be either not members of the 

community in question, or members. Mischief produced by the instrumentality 

of persons, may accordingly be produced by the instrumentality either of 

external or of internal adversaries. Now when it is produced by the agent's 

own unassisted powers, or by the instrumentality of internal adversaries, or 

only by the instrumentality of things, it is seldom that it can show itself 

in any other shape (setting aside any influence it may exert on the 

operations of government) than either that of an offence against assignable 

individuals, or that of an offence against a local or other subordinate 

class of persons. If there should be a way in which mischief can be 

produced, by any of these means, to individuals 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 national interest in general.[17] 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 invasion. 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 without taking a part in any of the injuries which came in 

consequence to be offered to particular individuals.



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 operations 

themselves: 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 

government, 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 

mischief from the community, or to make an addition to the sum of positive 

good.[18] Now mischief, we have seen, must come either from external 

adversaries, from internal adversaries, or from calamities. With regard to 

mischief from external adversaries, there requires no further division. As 

to mischief from internal adversaries, the expedients employed for averting 

it may be distinguished into such as may be applied before the discovery of 

any mischievous design in particular, and such as cannot be employed but in 

consequence of the discovery of some such design: the former of these are 

commonly referred to a branch which may be styled the preventive branch of 

the police: the latter to that of justice.[19] Secondly, As to the 

instruments which government, whether in the averting of evil or in the 

producing of positive 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,[20] may be distinguished from the rest under the 

collective appellation of the public military force, and, for conciseness' 

sake, the military force. The rest may be characterized by the collective 

appellation of the public wealth. Thirdly, with regard 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 cæteris 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 

community: the sum of which properties may be termed the the national 

wealth[21] so that the greater the national wealth, the greater cæteris 

paribus 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 not to be performed which ought to be 

performed; in other words, by impeding the operations of government. Or, 2. 

By causing operations to be performed which ought not to be performed; in 

other words, by misdirecting them. Lastly, to the total assemblage of the 

persons by whom the several political operations above mentioned come to be 

performed, we set out with applying the collective appellation of the 

government. Among these persons there commonly[22] is some one person, or 

body of persons whose office it is to assign and distribute to the rest 

their several departments, to determine the conduct to be pursued by each in 

the performance of the particular set of operations that belongs to him, and 

even upon occasion to exercise 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 sovereignty. Now it is 

evident, that to impede or misdirect the operations of the sovereign, as 

here described, may be to impede or misdirect the operations of the several 

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 

definition for each article. By offences against external 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 justice, such offences whereof the tendency is to impede or 

misdirect the operations of that power which is employed in the business of 

guarding the public against the mischiefs resulting from the delinquency of 

internal adversaries, as far as it is to be done by expedients, which do not 

come to be applied in any case till after the discovery of some particular 

design of the sort of those which they are calculated to prevent. By 

offences against the preventive branch of the police, such offences whereof 

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 beforehand; or 

of that which is employed in guarding against the mischiefs that might be 

occasioned by physical calamities. By offences against the public force, 

such offences whereof the tendency is to impede or misdirect the operations 

of that power which. destined to guard the public from the mischiefs which 

may result from the hostility of foreign adversaries, and, in case of 

necessity, in the capacity of ministers of justice, from mischiefs of the 

number of those which result from the delinquency of internal adversaries.



By offences against the increase of the national felicity, such offences 

whereof the tendency is to impede or misapply the operations of those powers 

that are employed in the conducting of various establishments, which are 

calculated to make, in so many different ways, a positive addition to the 

stock of public happiness. By offences 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 instruments employed in the 

service above mentioned may be kept up. By offences against population, such 

offences whereof the tendency is to diminish the numbers or impair the 

political value of the sum total of the members of the community. 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 is left for religion. 

This we shall see presently. For combating the various kinds of offences 

above 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 

commit, 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 

management 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 useful (without which the truth of the doctrine would 

be nothing to the purpose), to inculcate into the minds of the people the 

belief of the existence of a power applicable to the same purposes, 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 

purpose 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,[23] for 

convenience of discourse, and styled religion. To diminish, then, or 

misapply the influence of religion, 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 offences against 

religion. Of these then may be composed the tenth division of the class of 

offences against the state.[24]



XIX. If there be any acts which appear liable to affect the state in any one 

or more of the above ways, by operating in prejudice of the external 

security of the state, or of its internal security; of the public force; of 

the increase of the national felicity; of the public wealth; of the rational 

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 they will 

affect it most, nor but that, according 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 national interest in general. Of these then may be composed the eleventh 

and last division of the class of offences against the state.



XX. We come now to class the fifth: consisting of multiform offences. These, 

as has been already intimated, are either. offences by falsehood, or 

offences concerning trust. Under the head of offences by falsehood, may be 

comprehended, 1. Simple falsehoods. 2. Forgery. 3. Personation. 4. 

Perjury.[25] Let us observe in what particulars these four kinds of 

falsehood agree, and in what they differ. 



XXI. Offences by falsehood, however diversified in other particulars, have 

this in common, that they consist in some abuse of the faculty of discourse, 

or rather, as we shall see hereafter, of the faculty of influencing the 

sentiment of belief in other men,[26] 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 of them distinguished from 

other modes of uttering falsehood by certain special circumstances. When a 

falsehood is not accompanied by any of those circumstances, it maybe styled 

simple falsehood. These circumstances are, 1. The form in which the 

falsehood is uttered. 2. The circumstance of its relating or not to the 

identity of the person of him who utters it. 3. The solemnity of the 

occasion on which it is uttered.[27] The particular application of these 

distinctive characters may more commodiously be reserved for another 

place.[28]



XXIII. We come now to the sub-divisions of offences by falsehood. These will 

bring us back into the regular track of analysis, pursued, without 

deviation, through the four preceding classes.



By whatever means 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 conditions in life. The case 

is the same, if, though unassignable, they are comprisable in any class 

subordinate to that which is composed of the whole number of members of the 

state. If the falsehood tend to the detriment of the whole state, 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 increase of the national 

felicity, against the public wealth, against the national population, 

against the national wealth, against the sovereignty of the state, or 

against its religion.



XXIV. It is the common property, then, of the offences that belong to this 

division, to run over the same ground that is occupied by those of the 

preceding classes. But some of them, as we shall see, are apt, on various 

occasions, to drop or change the names which bring them under this division: 

this is chiefly the ease with regard to simple falsehoods. 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 indicates the expedient or 

instrument as it were by the help of which the offence is committed. 

Falsehood, 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 circumstances, there is scarce any sort of 

pernicious effect which it may not be instrumental in producing. 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 cannot be done, consistently 

with any principle of order or convenience, until the inferior divisions of 

those other classes shall have been previously exhibited.



XXV. 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,[29] which is conferred on him, is bound to perform for the benefit of 

another. Or, more fully, thus: A party is said to be invested with a trust, 

when, being invested with a power, or with a right, there is a certain 

behaviour which, in the exercise of that power, or of that right, he is 

bound to maintain for the benefit of some other 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 beneficiary, or to 

say at length the party to be benefited.[30] 



The trustee is also said to have a trust conferred or imposed upon him, to 

be invested with a trust, to have had a trust given him to execute, to 

perform, to discharge, or to fulfil. The party to be benefited, is said to 

have a trust established or created in his favour: and so on through a 

variety of other phrases.



XXVI. Now it may occur, that a trust is oftentimes spoken of as a species of 

condition:[31] that a trust is also spoken of as a species of property: and 

that a condition itself is also spoken of same light. It may be thought, 

therefore, that 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 divisions of the first class. But upon examination it 

will appear, that no one of these divisions could with convenience, nor even 

perhaps with propriety, 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 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 offences against 

trust will, upon their application to particular conditions, receive 

different particular denominations. It will appear also, that of the two 

groups 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 treatment, 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,[32] 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 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 material, the most important of the offences against 

these kinds of trust would not seem to be included under the denomination of 

offences against condition. The offences which by this latter appellation 

would be brought to view, would be such only as seemed to affect the 

interests of an individual: of him, for example, who is considered as being 

invested with that condition. But in offences against public trust, it is 

the influence 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 addition of the epithet public, 

is immediately understood to be the body composed of the whole assemblage, 

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 ambiguous garb that that idea could be 

expressed in by the words public condition. It appears, 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.



XXVI. 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 against condition, which 

perhaps with equal propriety, and without any change in their nature, might 

be considered in the light of offences against property: so extensive and so 

vague are the ideas that are wont to be annexed to both these objects. But 

there are other offences which though with unquestionable propriety they 

might be referred to the head of offences against condition, could not, 

without the utmost violence done to language, be forced under the 

appellation of offences against property. Property, considered with respect 

to the proprietor, 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 commands 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 instance laid upon other people. On the other hand, 

as to conditions, there are several which are of a mixed nature, importing 

as well a burthen to him who stands invested with them as a benefit: which 

indeed is the case with those conditions which we hear most of under that 

name, and which make the greatest figure.



There are even conditions which import nothing 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 with 

respect to the other; the word 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 property; but both of them are alike 

spoken of as being possessed of or being invested with a condition: it is 

the 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 property, 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 putting 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 other, it has in 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 absolutely requisite.[33] The expedient then has 

been 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 catalogue of 

possessions, it seems to have been considered as a branch of property. Some 

of these applications of the words property, object of property (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 construction, 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 

degree 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 would lessen the profits of your trade. But the 

ordinary right of exercising any such trade or profession, 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 forfeiting it, to 

forfeit his condition.



After all, it will be seen, that there must be cases in which, according to 

the usage of language, 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 

property, 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 bearing 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 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 suppose that, without being engaged in that general and miscellaneous 

course of service, which with reference to a particular person would 

denominate 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 repairing 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, mason, or the like, is not here in question), the offence you 

commit by withholding such service cannot with propriety be referred to the 

class of offences against condition: it can only therefore be referred to 

the class of offences against property.



By way of further distinction, it may be remarked, 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 possessing a condition, the assemblage of 

services is generally so considerable, in point of duration, as to 

constitute a course of considerable length, so as on a variety of occasions 

to come to be varied and repeated: and in most cases, when the condition 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 seldom 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.



XXVI. 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 propriety, 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 several possible offences against trust.



XXVII. Offences against trust may be distinguished, in the first place, into 

such as concern the existence of the trust in the hands of such or such a 

person, and such as concern the exercise of the functions that belong to 

it.[34] First then, with regard to such as relate to its existence. An 

offence of this description, like one of any other description, if an 

offence it ought to be, must to some person or other import a prejudice. 

This prejudice maybe distinguished into two branches: 1. That which may fall 

on such persons as are or should be invested with the trust: 2. That which 

may fall on the persons for whose sake it is or should be instituted, 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 possessor, must, in as far as they are material,[35] 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: in 

as far as they are disadvantageous, it may be considered as a burthen.[35] 

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;[37] that is, which the 

legislator meant should be established; or is not. If it is, the possession 

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 maybe 

regarded either as certain or as contingent), the investitive event, or 

event from whence your possession of it should have taken its commencement, 

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-investment of trust: in the 

latter case, wrongful interception of trust.[38] If at the time of the 

offence whereby you are deprived of it, you were already in possession of 

it, the offence may be styled 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 wrong-doer himself, in which case it may be styled 

usurpation of trust; or some other person, in which case it may be styled 

wrongful investment, or attribution, 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 deprives another of it, whether such deprivation 

shall or shall not be an offence, and, accordingly, whether non-investment, 

interception, or divestment, 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 divestment, 

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 usurpation, 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 styled 

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 usurpation 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 

detrectation[39] 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 styled wrongful exemption from trust.



XXVII. Lastly, with regard to the prejudice which the persons for whose 

benefit the trust is instituted, or any other persons whose interests may 

come to be affected by its existing or not existing in 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 question 

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 persons whose interests are at stake upon the exercise 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 prejudice 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 circumstance 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 usurpation of trust, wrongful attribution of trust, and wrongful 

imposition of trust: in the latter, wrongful non-investment of trust, 

wrongful interception of trust, wrongful divestment of trust, wrongful 

abdication of trust, and wrongful detrectation of trust.



So much for the offences which concern the existence or possession of a 

trust: those which concern the exercise of the functions that belong to it 

may be thus conceived. You are in possession 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 conformable to the purposes 

for which the trust was instituted, or unconformable: if conformable, there 

has been no mischief in the 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 styled 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 

styled positive breach of trust; in the other, abuse of trust.[40] In as far 

as the fault lies in another person, the offence on his part may be styled 

disturbance of 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 mentioned. 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 person, the acts whereby he may tend to 

render your conduct unconformable, must be exercised either on yourself, or 

on other objects at large. If exercised on yourself, the influence they 

possess must either be such as operates immediately on your 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 knowledge, or of the power, or 

of the inclination,[41] 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.[42] Lastly, This motive must be either of the coercive, 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 afterwards 

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 you 

eventually do or do not commit the breach or the abuse which it is the 

bribe-giver's intention you should commit, you at any rate commit an offence 

which is also termed bribery: and which, for distinction sake, may be termed 

passive bribery, or bribe-taking.[43] As to any farther distinctions, they 

will depend upon the nature of the particular 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. Positive breach of 

trust. 11. Abuse of trust. 12. Disturbance of trust. 13. Bribery.



XXVIII. From what has been said, it appears that there cannot be any other 

offences, on the part of a trustee, by which a beneficiary can receive on 

any particular occasion any assignable specific prejudice. One sort of acts, 

however, there are by which a trustee may be put in some danger of receiving 

a prejudice, although neither the nature of the prejudice, nor the occasion 

on which 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 

circumstances as have a tendency to increase the quantum of his sensibility 

to the action of any motive of the sort in question.[44] Of these acts, 

there seem to be no others, that will admit of a description applicable to 

all places and times alike, than acts of prodigality on the part of the 

trustee. But in acts of this nature the prejudice to the beneficiary is 

contingent only and unliquidated; while the prejudice to the trustee himself 

is certain and liquidated. If therefore on any occasion it should be found 

advisable to treat it on the footing of an offence, it will find its place 

more naturally in the class of self-regarding ones.



XXIX. As to the subdivisions of offences against trust, these are perfectly 

analogous to those of offences by falsehood. The trust may be private, 

semi-public, or public: it may concern property, person, reputation, or 

condition; or any two or more of those articles at a time: as will be more 

particularly 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. Lastly, if it be asked, What sort of relation there subsists between 

falsehoods on one hand, and offences concerning trust on the other hand; the 

answer is, they are altogether disparate. Falsehood is a circumstance that 

may enter into the composition of any sort of offence, those concerning 

trust, as well as any other: in some as an accidental, 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.







7. See ch. vii. [Actions], iii. and xxiii. 



If, by reason of the word relation, this part of the division should appear 

obscure, the unknown term may be got rid of in the following manner. Our 

ideas are derived, all of them, from the senses; pleasurable and painful 

ones, therefore, among the rest: consequently, from the operation of 

sensible objects upon our senses. A man's happiness, then, may be said to 

depend more or less upon the relation he bears to any sensible object, when 

such object is in a way that stands a chance, greater or less, of producing 

to him, or averting from him, pain or pleasure. Now this, if at all, it must 

do in one or other of two ways; 1. In an active way, properly so called; 

viz. by motion: or, 2. In a passive or quiescent way, by being moved to, or 

acted upon: and in either case, either, 1. in an immediate way, by acting 

upon, or being acted on by, the organs of sense, without the intervention of 

any other external object: or, 2. in a more or less remote way, by acting 

upon, or being acted on by, some other external object, which (with the 

intervention of a greater or less number of such objects, and at the end of 

more or less considerable intervals of time) will come at length to act 

upon, or be acted upon by, those organs. And this is equally true, whether 

the external objects in question be things or persons. It is also equally 

true of pains and pleasures of the mind, as of those of the body: all the 

difference is, that in the production of these, the pleasure or pain may 

result immediately from the perception which it accompanies: in the 

production of those of the mind, it cannot result from the action of an 

object of sense any otherwise than by association; to wit, by means of some 

connection which the perception has contracted with certain prior ones, 

lodged already in the memory.[45]



8. See ch. x. [Motives].



9. Subsequent consideration has here suggested several alterations. The 

necessity of adding to property, power, in the character of a 

distinguishable as well as valuable object or subject-matter of possession, 

has presented itself to view: and in regard to the fictitious entity here 

termed condition (for shortness instead of saying condition in life), it has 

been observed to be a sort of composite object, compounded of property, 

reputation, power and right to services. For this composite object the more 

proper place was therefore at the tail of the several simple ones. -- Note 

by the Editor, July, 1822.



10. Supra, iv. note.



11. See ch. xii. [Consequences].



12. See ch. viii. [Intentionality].



13. See B. I. tit. [Semi-public offences]. In the mean time that of 

pestilence may serve as an example. A man, without any intention of giving 

birth to such a calamity, may expose a neighbourhood to the danger of it, by 

breaking quarantine or violating any of those other preventive regulations 

which governments, at certain conjunctures, may find it expedient to have 

recourse to, for the purpose of guarding against such danger. 



14. See ch. xiii. [Cases unmeet], § iv.



15. In this part of the analysis, I have found it necessary to deviate in 

some degree from the rigid rules of the exhaustive method I set out with. By 

me, or by some one else, this method may, perhaps, be more strictly pursued 

at some maturer period of the science. At present, the benefit that might 

result from the unrelaxed observance of it, seemed so precarious that I 

could not help doubting whether it would pay for the delay and trouble. 

Doubtless such a method is eminently instructive: but the fatigue of 

following it out is so great, not only to the author, but probably also to 

the reader, that carried to its utmost length at the first attempt, it might 

perhaps do more disservice in the way of disgust, than service in the way of 

information. For knowledge, like physic, how salutary soever in itself, 

becomes no longer of any use, when made too unpalatable to be swallowed. 

Mean time, it cannot but be a mortifying circumstance 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. 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.



16. The idea of government, it maybe observed, is introduced here without 

any preparation. The fact of its being established, I assume as notorious, 

and the necessity of it as alike obvious and incontestable. Observations 

indicating that necessity, if any such should be thought worth 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 of illustration.



17. 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.



18. 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 comparatively 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 language 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 good, no peculiar name, however inadequate, 

seems yet to have been devised.



19. 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 persons, 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 belonging to it seems to be too multifarious to be susceptible of any 

single definition. Want of words obliged me to reduce the two branches here 

specified into one. Who would have endured in this place to have seen two 

such words as the phthano-paranomic or crime-preventing, and the 

phthano-symphoric or calamity-preventing, branches of the police? the 

inconveniences 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 increase of 

the national felicity, or of that which employs itself in the management of 

the public wealth. See infra, liv. note.



20. 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 ensured 

by a force of such magnitude, may therefore be looked upon in general as the 

work of external adversaries. Accordingly, 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 increase in force, till at length they are 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 hostility.



21. It must be confessed, that in common speech the distinction 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 am mistaken if the language will furnish any other two words that 

would express the distinction better. Those in question 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.



22. I should have been afraid to have said necessarily. In the United 

Provinces, in the Helvetic, or even in the Germanic 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.



23. See par. xvii. with regard to justice.



24. 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 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 unsusceptible of pain? How should an 

offence affect him? Should it be an offence against his person, his 

property, his reputation, or his condition?



It has commonly been the way to put offences against religion foremost. The 

idea of precedence is naturally enough connected with that of reverence. Ek 

Dios archomestha. But for expressing reverence, there are other methods 

enough that are less equivocal. And in point of method and perspicuity 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 punishing 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.



25. 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 libel. Now it is obvious, that in the same manner it might 

have received 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 circumstances by which it might have been diversified, 

those which constitute it a libel, happen to have engaged a peculiar share 

of attention on the part of the institutors of language; either in virtue of 

the influence which these circumstances 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.



26. See B. I. tit. [Falsehoods].



27. There are two other circumstances still more material; viz. 1. The 

parties whose interest is affected by the falsehood: 2. The point or article 

in which that interest is affected. These circumstances, however, enter not 

into the composition of the generical character. Their use is, as we shall 

see, to characterize the several species of each genus. See B. I. tit. 

[Falsehoods].



28. Ibid.



29. Powers, though not a species of rights (for the two sorts of fictitious 

entities, termed a power and a right, are altogether disparate) are yet so 

far included under rights, that wherever the word power maybe 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 him as having a right 

to such power: but the converse of this proposition does not hold good: 

there are cases in which, though you may speak of a man as having a right, 

you cannot 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 magistrate: 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 perhaps, 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 meaning 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 necessary 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 entities of this stamp, are all of them, in the sense which 

belongs to them in a book of jurisprudence, the results of some 

manifestation 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 

uncommanded. Now, to render the expression of the rule more concise, the 

commanding of a positive act may be represented 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 

prohibition, 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 individual, a subordinate glass 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 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 property 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 prohibitions, by which the 

powers and rights that compose those several modifications are vented, are 

so many different forms: to comprise 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 analyst 

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 present one, it would be indispensable. Of the limits which seem 

to separate 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. lv. 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 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:[46] 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 fictitious entities, of which the import can by no other mean be 

illustrated than by showing the relation which they bear to real ones.



30. 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 is still elliptical, 

and to the highest degree obscure. The phrase in full length would run in 

some such manner as this: cestuy al use de qui le trust est créé: he to 

whose use the trust or benefit is created. In a particular case a cestuy que 

trust is called by the Roman law, fidei-commissarius. In imitation of this, 

I have seen him somewhere or other called in English a fide-committee. This 

term, however, seems not very expressive. A fide-committee, or, as it should 

have been, fidei-committee, seems, literally 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 constitutes a legal obligation 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 I 

found it necessary to adopt, the sense would be better expressed by some 

such word as beneficiendary (a word analogous in its formation to 

referendary), were it such an one as the ear could bring itself to endure. 

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 beneficiary might be understood to intimate, that 

the benefit was actually received: while in offences against trust the 

mischief commonly is, that such benefit is reaped not by the person it was 

designed for, but by some other: for instance, the trustee.



31. 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 language. For the fictitious entities, 

characterised 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 condition of a trustee. We speak of the 

condition of a trustee as we speak of the condition of a husband or a 

father. 



32. Infra, lv.



33. It is to be observed, that in common 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 have made that part of it which consists of the words 

a man's 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 oases 

it was only certain particular acts that might be exercised on the object: 

and to say of the object that it was his property, 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. Sometimes 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 property of another is what would 

shock the ear every where but where slavery is established, and even there, 

when applied 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 civilised 

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 husband's property is now the 

company of his wife;[47] the father's the guardianship and service of his 

child; the master's, the service of his servant.



34. We shall have occasion, a little farther on, to speak of the person in 

whose hands the trust exists, under the description 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 oases the same. So irregular 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 

modified: so likewise in regard to conditions, and in regard to property. 

The being invested with, or possessing a condition. the being in possession 

of an article of property, 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 property, that is, if the object 

of it be corporeal, the occupation. These verbal discussions are equally 

tedious and indispensable. 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 complete set of new ones is impossible. All 

that can be done is, to make here and there a new one in cases of absolute 

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 terms 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 demonstration would lead us too far out of the ordinary track of 

language.



35. See ch. vii. [Actions], ii.



36. If advantageous, it will naturally be on account of the powers or rights 

that are annexed to the trust: if disadvantageous, on account of the duties.



37. 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, unquestionably, 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 something 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 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. But 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 consistently 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 exposed, on the occasion of 

any such institution, to sustain a detriment.



38. 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 language: 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 itself 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 ancient 

lawyers, 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.



39. 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.



40. 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 common 

speech: and in regard to public trusts, it will even in 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 different. 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 favour 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 prejudice can ensue to them.



41. See infra, liv. note; and ch. xviii. [Indirect Legislation].



42. See ch. xi. [Dispositions], xxix.



43. To bribe a trustee, as such, is in fact neither more nor less than to 

suborn him to be guilty 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, xxxi. note, 

and B. I. tit. [Accessory 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 peculiar 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.



44. See ch. vi. [Sensibility] ii.



45. See ch. v. [Pleasures and Pains], xv. xxxi. Ch. x. [Motives], xxxviii, 

note.



46. See Fragment of Government, ch. v. § 6, note. 



47. The consortium says the English Law.