DIVISION OF OFFENSES.
§ 1. Classes of Offences.
I. It is necessary, at the outset, to make a distinction between such acts as are or may be, and such as ought to be offences.
Any act may be an offence, which they whom the community of are in the habit of obeying shall be pleased to make one: that to is, any act which they shall be pleased to prohibit or to punish. But, upon the principle of utility, such acts alone ought to be made offences, as the good of the community requires should be made so.
II. The good of the community cannot require, that any act should be made an offence, which is not liable. in some way or other, to be detrimental to the community. For in the case of such an act, all punishment is groundless.
III. But if the whole assemblage of any number of individuals be considered as constituting an imaginary compound body, a community or political state; any act that is detrimental to any one or more of those members is, as to so much of its effects, detrimental to the state.
IV. An act cannot be detrimental to a state, but by being detrimental to some one or more of the individuals that compose it. But these individuals may either be assignable or unassignable.
V. When there is any assignable individual to whom an offence is detrimental, that person may either be a person other than the offender, or the offender himself.
VI. Offences that are detrimental, in the first instance, to assignable persons other than the offender, may be termed by one common name, offences against individuals. And of these may be composed the 1st class of offences. To contrast them with offences of the 2nd and 4th classes, it may also sometimes be convenient to style them private offences. To contrast them at the same time with offences of the 3rd class, they may be styled private extra-regarding offences.
VII. When it appears, in general, that there are persons to whom the act in question may be detrimental, but such persons cannot be individually assigned, the circle within which it appears that they may be found, is either of less extent than that which comprises the whole community, or not. If of less, the persons comprised within this lesser circle may be considered for this purpose as composing a body of themselves; comprised within, but distinguishable from, the greater body of the whole community. The circumstance that constitutes the union between the members of this lesser body, may be either their residence within a particular place, or, in short, any other less explicit principle of union, which may serve to distinguish them from the remaining members of the community. In the first case, the act may be styled an offence against a neighbourhood: in the second, an offence against a particular class of persons in the community. Offenses, then, against a class or neighbourhood, may, together, constitute the 2nd class of offences. To contrast them with private offences on the one hand, and public on the other, they may also be styled semi-public offences.
VIII. Offences, which in the first instance are detrimental to the offender himself, and to no one else, unless it be by their being detrimental to himself, may serve to compose a third class. To contrast them the better with offences of the first, second, and fourth classes, all which are of a transitive nature, they might be styled intransitive offences; but still better, self-regarding.
IX. The fourth class may be composed of such acts as ought to be made offences, on account of the distant mischief which they threaten to bring upon an unassignable indefinite multitude of the whole number of individuals, of which the community is composed: although no particular individual should appear more likely to be a sufferer by them than another. These may be called public offences, or offences against the state.
X. A fifth class, or appendix, may be composed of such acts as, according to the circumstances in which they are committed, or and more particularly according to the purposes to which they are applied, may be detrimental in any one of the ways in which the act of one man can be detrimental to another. These may to be termed multiform, or heterogeneous offences. Offences that are in this case may be reduced to two great heads: 1. Offences by falsehood: and 2. Offenses against trust.
1. This chapter is an attempt to put our ideas of offences into an exact method. The particular uses of method are various: but the general one is, to enable men to understand the things that are the subjects of it. To understand a thing, is to be acquainted with its qualities or properties. Of these properties, some are common to it with other things; the rest, peculiar. But the qualities which are peculiar to any one sort of thing are few indeed, in comparison with those which are common to it with other things. To make it known in respect of its difference, would therefore be doing little, unless it were made known also by its genus. To understand it perfectly, a man must therefore be informed of the points in which it agrees as well as of those in which it disagrees, with all other things. When a number of objects, composing a logical whole, are to be considered together all of these possessing with respect to one another a certain congruency or agreement denoted by a certain name, there is but one way of giving a perfect knowledge of their nature; and that is, by distributing them into a system of parcels, each of them a part, either of some other parcel, or, at any rate, of the common whole. This can only be done in the way of bipartition, dividing each superior branch into two, and but two, immediately subordinate ones; beginning with the logical whole, dividing that into two parts, then each of those parts into two others; and so on. These first-distinguished parts agree in respect of those properties which belong to the whole: they differ in respect of those properties which are peculiar to each. To divide the whole into more than two parcels at once, for example into three, would not answer the purpose; for, in fact, it is but two objects that the mind can compare together exactly at the same time. Thus then, let us endeavour to deal with offences; or rather, strictly speaking, with acts which possess such properties as seem to indicate them fit to be constituted offences. The task is arduous, and as yet at least, perhaps for ever, above our force. There is no speaking of objects but by their names: but the business of giving them names has always been prior to the true and perfect knowledge of their natures. Objects the most dissimilar have been spoken of and treated as if their properties were the same. Objects the most similar have been spoken of and treated as if they had scarce anything in common. Whatever discoveries may be made concerning them, how different soever their congruencies and disagreements maybe found to be from those which are indicated by their names, it is not without the utmost difficulty that any means can be found out of expressing those discoveries by a conformable set of names. Change the import of the old names, and you are in perpetual danger of being misunderstood: introduce an entire new set of names, and you are sure not to be understood at all. Complete success then, is, as yet at least, unattainable. But an attempt, though imperfect, may have its use: and, at the worst, it may accelerate the arrival of that perfect system, the possession of which will be the happiness of some maturer age. Gross ignorance descries no difficulties; imperfect knowledge finds them out, and struggles with them: it must be perfect knowledge that overcomes them.
2. See ch. xiii. [Cases unmeet], § ii. 1.
3. That is, either by name, or at least by description, in such manner as to be sufficiently distinguished from all others; for instance, by the circumstance of being the owner or occupier of such and such goods. See B. I. tit. [Personation], supra, ch. xii. [Consequences], xv.
4. With regard to offences against a class or neighbourhood, it is evident, that the fewer the individuals are, of which such class is composed, and the narrower that neighbourhood is, the more likely are the persons, to whom the offense is detrimental, to become assignable, insomuch that, in some cases, it may be difficult to determine concerning a given offense, whether it be an offense against individuals, or against a class or neighbourhood. It is evident also, that the larger the class or neighbourhood is, the more it approaches to a coincidence with the great body of the state. The three classes, therefore, are liable to a certain degree, to run into one another, and be confounded. But this is no more than what is the case, more or less, with all those ideal compartments under which men are wont to distribute objects for the convenience of discourse.
5. See ch. vii. [Actions], xiii.
6. 1. Offences by falsehood: 2. Offenses against trust. See also par. xx. to xxx. and par. lxvi. Maturer views have suggested the feasibility, and the means, of ridding the system of this anomalous excrescence. Instead of considering these as so many divisions of offences, divided into genera a correspondent and collateral to the several genera distinguished by other appellation they may be considered as so many specific differences, respectively applicable to those genera. Thus, in the case of a simple personal injury, in the operation of which a plan of falsehood has been employed: it seems more simple and more natural, to consider the offense thus committed as a particular species or modification of the genus of offence termed a simple personal injury, than to consider the simple personal injury, when effected by such means, as a modification of the division of offences entitled Offences through falsehood. By this means the circumstances of the intervention of falsehood as an instrument, and of the existence of a particular obligation of the nature of a trust, will be reduced to a par with various other classes of circumstances capable of affording grounds of modification commonly of aggravation or extenuation, to various genera of offences: instance, Premeditation, and conspiracy, on the one hand; Provocation received, and intoxication, on the other. This class will appear, but too plainly, as a kind of botch in comparison of the rest. But such is the fate of science and more particularly of the moral branch; the distribution of things must in a great measure be dependent on their names: arrangement, the work of mature rejection, must be ruled by nomenclature, the work of popular caprice.
In the book of the laws, offences must therefore be treated of as much as possible under their accustomed names. Generical terms, which are in continual use, and which express ideas for which there are no other terms in use, cannot safely be discarded. When any such occur, which cannot be brought to quadrate with such a plan of classification as appears to be most convenient upon the whole, what then is to be done? There seems to be but one thing, which is, to retain them, and annex them to the regular part of the system in the form of an appendix. Though they cannot, when entire, be made to rank under any of the classes established in the rest of the system, the divisions to which they give title may be broken down into lesser divisions, which may not be alike intractable. By this means, how discordant soever with the rest of the system they may appear to be at first sight, on a closer inspection they may be found conformable
This must inevitably be the case with the names of offences, which are so various and universal in their nature, as to be capable, each of them of doing whatever mischief can be done by any other kind or kinds of offences whatsoever. Offences of this description may well be called anomalous.
Such offences, it is plain, cannot but show themselves equally intractable under every kind of system. Upon whatever principle the system be constructed, they cannot, any of them, with any degree of propriety, be confined to any one division. If, therefore, they constitute a blemish in the present system, it is such a blemish as could not be avoided but at the expense of a greater. The class they are here thrown into will traverse, in its subordinate ramifications, the other classes and divisions of the present system: true, but so would they of any other. An irregularity, and that but a superficial one, is a less evil than continual error and contradiction But even this slight deviation, which the fashion of language seemed to render unavoidable at the outset, we shall soon find occasion to correct as we advance. For though the first great parcels into which the offences of this class are divided are not referable, any of them, to any of the former classes, yet the subsequent lesser subdivisions are.
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