XXXI. Returning now to class the first, let us pursue the distribution a step farther, and branch out the several divisions of that class, as above exhibited, into their respective genera, that is, into such minuter divisions as are capable of being characterised by denominations of which a great part are already current among the people. In this place the analysis must stop. To apply it in the same regular form to any of the other classes seems scarcely practicable: to semi-public, as also to public offences, on account of the interference of local circumstances: to self-regarding ones, on account of the necessity it would create of deciding prematurely upon points which may appear liable to controversy: to offences by falsehood, and offences against trust, on account of the dependence there is between this class and the three former. What remains to be done in this way, with reference to these four classes, will require discussion, and will therefore be introduced with more propriety in the body of the work, than in a preliminary part, of which the business is only to draw outlines.
XXXII. An act, by which the happiness of an individual is disturbed, is either simple in its effects or complex. It may be styled simple in its effects, when it affects him in one only of the articles or points in which his interest, as we have seen, is liable to be affected: complex, when it affects him in several of those points at once. Such as are simple in their effects must of course be first considered.
XXXIII. In a simple way, that is in one way at a time, a man's happiness is liable to be disturbed either 1. By actions referring to his own person itself; or 2. By actions referring to such external objects on which his happiness is more or less dependent. As to his own person, it is composed of two different parts, or reputed parts, his body and his mind. Acts which exert a pernicious influence on his person, whether it be on the corporeal or on the mental part of it, will operate thereon either immediately, and without affecting his will, or mediately, through the intervention of that faculty: viz. by means of the influence which they cause his will to exercise over his body. If with the intervention of his will, it must be by mental coercion: that is, by causing him to will to maintain, and thence actually to maintain, a certain conduct which it is disagreeable, or in any other way pernicious, to him to maintain. This conduct may either be positive or negative: when positive, the coercion is styled compulsion or constraint: when negative, restraint. Now the way in which the coercion is disagreeable to him, may be by producing either pain of body, or only pain of mind. If pain of body is produced by it, the offence will come as well under this as under other denominations, which we shall come to presently. Moreover, the conduct which a man, by means of the coercion, is forced to maintain, will be determined either specifically and originally, by the determination of the particular acts themselves which he is forced to perform or to abstain from, or generally and incidentally, by means of his being forced to be or not to be in such or such a place. But if he is prevented from being in one place, he is confined thereby to another. For the whole surface of the earth, like the surface of any greater or lesser body, may be conceived to be divided into two, as well as into any other number of parts or spots. If the spot then, which he is confined to, be smaller than the spot which he is excluded from, his condition may be called confinement: if larger, banishment.[*] Whether an act, the effect of which is to exert a pernicious influence on the person of him who suffers by it operates with or without the intervention of an act of his will, the mischief it produces will either be mortal or not mortal. If not mortal, it will either be reparable, that is temporary, or irreparable, that is perpetual. If reparable, the mischievous act may be termed a simple corporal injury; if irreparable, an irreparable corporal injury. Lastly, a pain that a man experiences in his mind will either be a pain of actual sufferance, or a pain of apprehension. If a pain of apprehension, either the offender himself is represented as intending to bear a part in the production of it, or he is not. In the former case the offence may be styled menacement: in the latter case, as also where the pain is a pain of actual sufferance, a simple mental injury. And thus we have nine genera or kinds of personal injuries; which, when ranged in the order most commodious for examination, will stand as follows; viz. 1. Simple corporal injuries. 2. Irreparable corporal injuries. 3. Simple injurious restrainment. 4. Simple injurious compulsion. 5. Wrongful confinement. 6. Wrongful banishment. 7. Wrongful homicide. 8. Wrongful menacement. 9. Simple mental injuries. {Corresponding semi-public and self-regarding offences.}
XXXIV. We come now to offences against reputation merely. These require but few distinctions. In point of reputation there is but one way of suffering, which is by losing a portion of the good-will of others. Now, in respect of the good-will which others bear you, you may be a loser in either of two ways: 1. By the manner in which you are thought to behave yourself; and 2. By the manner in which others behave, or are thought to behave, towards you. To cause people to think that you yourself have so behaved, as to have been guilty of any of those acts which cause a man to possess less than he did before of the good-will of the community, is what may be styled defamation. But such is the constitution of human nature, and such the force of prejudice, that a man merely by manifesting his own want of good-will towards you, though ever so unjust in itself, and ever so unlawfully expressed, may in a manner force others to withdraw from you a part of theirs. When he does this by words, or by such actions as have no other effect than in as far as they stand in the place of words, the offence may be styled vilification. When it is done by such actions as, besides their having this effect, are injuries to the person, the offence may be styled a personal insult: if it has got the length of reaching the body, a corporal insult: if it stopped short before it reached that length, it may be styled insulting menacement. And thus we have two genera or kinds of offences against reputation merely; to wit, 1. Defamation: and, 2. Vilification, or Revilement. {Corresponding semi-public and self-regarding offences.} As to corporal insults, and insulting menacement, they belong to the compound title of offences against person and reputation both together.
XXXV. If the property of one man suffers by the delinquency of another, such property either was in trust with the offender, or it was not: if it was in trust, the offence is a breach of trust, and of whatever nature it may be in other respects, may be styled dissipation in breach of trust, or dissipation of property in trust. This is a particular case: the opposite one is the more common: in such case the several ways in which property may, by possibility, become the object of an offence, may be thus conceived. Offences against property, of whatever kind it be, may be distinguished, as hath been already intimated, into such as concern the legal possession of it, or right to it, and such as concern only the enjoyment of it, or, what is the same thing, the exercise of that right. Under the former of these heads come, as hath been already intimated, the several offences of wrongful non-investment, wrongful interception, wrongful divestment, usurpation, and wrongful attribution. When in the commission of any of these offences a falsehood has served as an instrument, and that, as it is commonly called, a wilful, or as it might more properly be termed, an advised one, the epithet fraudulent may be prefixed to the name of the offence, or substituted in the room of the word wrongful. The circumstance of fraudulency then may serve to characterise a particular species, comprisable under each of those generic heads: in like manner the circumstance of force, of which more a little farther on, may serve to characterize another. With respect to wrongful interception in particular, the investitive event by which the title to the thing in question should have accrued to you, and for want of which such title is, through the delinquency of the offender, as it were, intercepted, is either an act of his own, expressing it as his will, that you should be considered by the law as the person who is legally in possession of it, or it is any other event at large: in the former case, if the thing, of which you should have been put into possession, is a sum of money to a certain amount, the offence is that which has received the name of insolvency; which branch of delinquency, in consideration of the importance and extent of it, may be treated on the footing of a distinct genus of itself.
Next, with regard to such of the offences against property as concern only the enjoyment of the object in question. This object must be either a service, or set of services, which should have been rendered by some person, or else an article belonging to the class of things. In the former ease, the offence may be styled wrongful withholding of services. In the latter case it may admit of farther modifications, which may be thus conceived: When any object which you have had the physical occupation or enjoyment of, ceases, in any degree, in consequence of the act of another man, and without any change made in so much of that power as depends upon the intrinsic physical condition of your person, to be subject to that power; this cessation is either owing to change in the intrinsic condition of the thing itself, or in its exterior situation with respect to you, that is, to its being situated out of your reach. In the former case, the nature of the change is either such as to put it out of your power to make any use of it at all, in which case the thing is said to be destroyed, and the offence whereby it is so treated may be termed wrongful destruction: or such only as to render the uses it is capable of being put to of less value than before, in which case it is said to be damaged, or to have sustained damage, and the offence may be termed wrongful endamagement. Moreover, in as far as the value which a thing is of to you is considered as being liable to be in some degree impaired, by any act on the part of any other person exercised upon that thing, although on a given occasion no perceptible damage should ensue, the exercise of any such act is commonly treated on the footing of an offence, which may be termed wrongful using or occupation.
If the cause of the thing's failing in its capacity of being of use to you, lies in the exterior situation of it with relation to you, the offence may be styled wrongful detainment. Wrongful detainment, or detention, during any given period of time, may either be accompanied with the intention of detaining the thing for ever (that is for an indefinite time), or not: if it be, and if it be accompanied at the same time with the intention of not being amenable to law for what is done, it seems to answer to the idea commonly annexed to the word embezzlement, an offence which is commonly accompanied with breach of trust. In the case of wrongful occupation, the physical faculty of occupying may have been obtained with or without the assistance or consent of the proprietor, or other person appearing to have a right to afford such assistance or consent. If without such assistance or consent, and the occupation be accompanied with the intention of detaining the thing for ever, together with the intention of not being amenable to law for what is done, the offence seems to answer to the idea commonly annexed to the word theft or stealing. If in the same circumstances a force is put upon the body of any person who uses, or appears to be disposed to use, any endeavours to prevent the act, this seems to be one of the cases in which the offence is generally understood to come under the name of robbery.
If the physical faculty in question was obtained with the assistance or consent of a proprietor or other person above spoken of, and still the occupation of the thing is an offence, it may have been either because the assistance or consent was not fairly or because it was not freely obtained. If not fairly obtained, it was obtained by falsehood, which, if advised, is in such a case termed fraud: and the offence, if accompanied with the intention of not being amenable to law, may be termed fraudulent obtainment or defraudment. [*] If not freely obtained, it was obtained by force: to wit, either by a force put upon the body, which has been already mentioned, or by a force put upon the mind. If by a force put upon the mind, or in other words, by the application of coercive motives, it must be by producing the apprehension of some evil: which evil, if the act is an offence, must be some evil to which on the occasion in question the one person has no right to expose the other. This is one case in which, if the offence be accompanied with the intention of detaining the thing for ever, whether it be or be not accompanied with the intention of not being amenable to law, it seems to agree with the idea of what is commonly meant by extortion. Now the part a man takes in exposing another to the evil in question, must be either a positive or a negative part. In the former case, again, the evil must either be present or distant. In the case then where the assistance or consent is obtained by a force put upon the body, or where, if by a force put upon the mind, the part taken in the exposing a man to the apprehension of the evil is positive, the evil present, and the object of it his person, and if at any rate the extortion, thus applied, be accompanied with the intention of not being amenable to law, it seems to agree with the remaining case of what goes under the name of robbery.
As to dissipation in breach of trust, this, when productive of a pecuniary profit to the trustee, seems to be one species of what is commonly meant by peculation. Another, and the only remaining one, seems to consist in acts of occupation exercised by the trustee upon the things which are the objects of the fiduciary property, for his own benefit, and to the damage of the beneficiary. As to robbery, this offence, by the manner in which the assistance or consent is obtained, becomes an offence against property and person at the same time. Dissipation in breach of trust, and peculation, may perhaps be more commodiously treated of under the head of offences against trust. {Usury.} After these exceptions, we have thirteen genera or principal kinds of offences against property, which, when ranged in the order most commodious for examination, may stand as follows, viz. I. Wrongful non-investment of property. 2. Wrongful interception of property. 3. Wrongful divestment of property. 4. Usurpation of property. 5. Wrongful investment of property. 6. Wrongful withholding of services. 7. Wrongful destruction or endamagement. 8. Wrongful occupation. 9. Wrongful detainment. 10. Embezzlement. 11. Theft. 12. Defraudment. 13. Extortion. {Corresponding semi-public and self-regarding offences.}
We proceed now to consider offences which are complex in their effects. Regularly, indeed, we should come to offences against condition; but it will be more convenient to speak first of offences by which a man's interest is affected in two of the preceding points at once.
XXXVI. First, then, with regard to offences which affects person and reputation together. When any man, by a mode of treatment which affects the person, injures the reputation of another, his end and purpose must have been either his own immediate pleasure, or that sort of reflected pleasure, which in certain circumstances may be reaped from the suffering of another. Now the only immediate pleasure worth regarding, which any one can reap from the person of another, and which at the same time is capable of affecting the reputation of the latter, is the pleasure of the sexual appetites. This pleasure, then, if reaped at all, must have been reaped either against the consent of the party, or with consent. If with consent, the consent must have been obtained either freely and fairly both, or freely but not fairly, or else not even freely; in which case the fairness is out of the question. If the consent be altogether wanting, the offence is called rape: if not fairly obtained, seduction simply: if not freely, it may be called forcible seduction. In any case, either the offence has gone the length of consummation, or has stopped short of that period; if it has gone that length, it takes one or other of the names just mentioned: if not, it may be included alike in all cases under the denomination of a simple lascivious injury. Lastly, to take the case where a man injuring you in your reputation, by proceedings that regard your person, does it for the sake of that sort of pleasure which will sometimes result from the contemplation of another's pain. Under these circumstances either the offence has actually gone the length of a corporal injury, or it has rested in menacement: in the first case it may be styled a corporal insult; in the other, it may come under the name of insulting menacement. And thus we have six genera, or kind of offences, against person and reputation together; which, when ranged in the order most commodious for consideration, will stand thus: 1. Corporal insults. 2. Insulting menacement. 3. Seduction. 4. Rape. 5. Forcible seduction. 6. Simple lascivious injuries. {Corresponding semi-public and self-regarding offences.}
XXXVII. Secondly, with respect to those which affect person and property together. That a force put upon the person of a man may be among the means by which the title to property may be unlawfully taken away or acquired, has been already stated. A force of this sort then is a circumstance which may accompany the offences of wrongful interception, wrongful divestment, usurpation, and wrongful investment. But in these cases the intervention of this circumstance does not happen to have given any new denomination to the offence. In all or any of these cases, however, by prefixing the epithet forcible, we may have so many names of offences, which may either be considered as constituting so many species of the genera belonging to the division of offences against property, or as so many genera belonging to the division now before us. Among the offences that concern the enjoyment of the thing, the case is the same with wrongful destruction and wrongful endamagement; as also with wrongful occupation and wrongful detainment. As to the offence of wrongful occupation, it is only in the case where the thing occupied belongs to the class of immovables, that, when accompanied by the kind of force in question, has obtained a particular name which is in common use: in this case it is called forcible entry: forcible detainment, as applied also to immovables, but only to immovables, has obtained, among lawyers at least, the name of forcible detainer. And thus we may distinguish ten genera, or kinds of offences, against person and property together, which, omitting for conciseness' sake the epithet wrongful, will stand thus: 1. Forcible interception of property. 2. Forcible divestment of property. 3. Forcible usurpation. 4. Forcible investment. 5. Forcible destruction or endamagement. 6. Forcible occupation of movables. 7. Forcible entry. 8. Forcible detainment of movables. 9. Forcible detainment of immovables. 10. Robbery. {Corresponding semi-public and self-regarding offences.}