LV. We come now to civil conditions: these, it may well be imagined, may be infinitely various: as various as the acts which a man may be either commanded or allowed, whether for his own benefit, or that of others, to abstain from or to perform. As many different denominations as there are of persons distinguished with a view to such commands and allowances (those denominations only excepted which relate to the conditions above spoken of under the name of domestic ones) so many civil conditions one might enumerate. Means however, more or less explicit, may be found out of circumscribing their infinitude.
What the materials are, if so they may be called, of which conditions, or any other kind of legal possession, can be made up, we have already seen: beneficial powers, fiduciary powers, beneficial rights, fiduciary rights, relative duties, absolute duties. But as many conditions as import a power or right of the fiduciary kind, as possessed by the person whose condition is in question, belong to the head of trusts. The catalogue of the offences to which these conditions are exposed, coincides therefore exactly with the catalogue of offences against trust: under which head they have been considered in a general point of view under the head of offences against trust: and such of them as are of a domestic nature, in a more particular manner in the character of offences against the several domestic conditions. Conditions constituted by such duties of the relative kind, as have for their counterparts trusts constituted by fiduciary powers, as well as rights on the side of the correlative party, and those of a private nature, have also been already discussed under the appellation of domestic conditions. The same observation maybe applied to the conditions constituted by such powers of the beneficial kind over persons as are of a private nature: as also to the subordinate correlative conditions constituted by the duties corresponding to those rights and powers. As to absolute duties, there is no instance of a condition thus created, of which the institution is upon the principle of utility to be justified; unless the several religious conditions of the monastic kind should be allowed of as examples. There remain, as the only materials out of which the conditions which yet remain to be considered can be composed, conditions constituted by beneficial powers over things; conditions constituted by beneficial rights to things (that is, rights to powers over things) or by rights to those rights, and so on; conditions constituted by rights to services; and conditions constituted by the duties corresponding to those respective rights. Out of these are to be taken those of which the materials are the ingredients of the several modifications of property,the several conditions of proprietorship. These are the conditions, if such for a moment they may be styled, which having but here and there any specific names, are not commonly considered on the footing of conditions: so that the acts which, if such conditions were recognised might be considered as offences against those conditions, are not wont to be considered in any other light than that of offences against property.
Now the case is, as hath been already intimated, that of these civil conditions, those which are wont to be considered under that name, are not distinguished by any uniform and explicit line from those of which the materials are wont to be carried to the head of property: a set of rights shall, in one instance, be considered as constituting an article of property rather than a condition: while, in another instance, a set of rights of the same stamp is considered as constituting rather a condition than an article of property. This will probably be found to be the case in all languages: and toe usage is different again in one language from what it is in another. From these causes it seems to be impracticable to subject the class of civil conditions to any exhaustive method: so that for making a complete collection of them there seems to be no other expedient than that of searching the language through for them, and taking them as they come. To exemplify this observation, it may be of use to lay open the structure as it were of two or three of the principal sorts or classes of conditions, comparing them with two or three articles of property which appear to be nearly of the same complexion: by this means the nature and generation, if one may so call it, of both these classes of ideal objects may be the more clearly understood.
The several sorts of civil conditions that are not fiduciary may all, or at least the greater part of them, be comprehended under the head of rank, or that of profession; the latter word being taken in its most extensive sense, so as to include not only what are called the liberal professions, but those also which are exercised by the several sorts of traders, artists, manufacturers, and other persons of whatsoever station, who are in the way of making a profit by their labour. Among ranks then, as well as professions, let us, for the sake of perspicuity, take for examples such articles as stand the clearest from any mixture of either fiduciary or beneficial power. The rank of knighthood is constituted, how? by prohibiting all other persons from performing certain acts, the performance of which is the symbol of the order, at the same time that the knight in question, and his companions, are permitted: for instance, to wear a ribbon of a certain colour in a certain manner: to call himself by a certain title: to use an armorial seal with a certain mark on it. By laying all persons but the knight under this prohibition, the law subjects them to a set of duties: and since from the discharge of these duties a benefit results to the person in whose favour they are created, to wit, the benefit of enjoying such a share of extraordinary reputation and respect as men are wont to yield to a person thus distinguished, to discharge them is to render him a service: and the duty being a duty of the negative class, a duty consisting in the performance of certain acts of the negative kind, the service is what may be called a service of forbearance. It appears then, that to generate this condition there must be two sorts of services: that which is the immediate cause of it, a service of the negative kind, to be rendered by the community at large: that which is the cause again of this service, a service of the positive kind, to be rendered by the law.
The condition of a professional man stands upon a narrower footing. To constitute this condition there needs nothing more than a permission given him on the part of the legislator to perform those acts, in the performance of which consists the exercise of his profession: to give or sell his advice or assistance in matters of law or physic: to give or sell his services as employed in the executing or overseeing of a manufacture or piece of work of such or such a kind: to sell a commodity of such or such a sort. Here then we see there is but one sort of service requisite; a service which may be merely of the negative kind, to be rendered by the law: the service of permitting him to exercise his profession: a service which, if there has been no prohibition laid on before, is rendered by simply forbearing to prohibit him.
Now the ideal objects, which in the cases above specified are said to be conferred upon a man by the services that are respectively in question, are in both cases not articles of property but conditions. By such a behaviour on the part of the law, as shall be the reverse of that whereby they were respectively produced, a man may be made to forfeit them: and what he is then said to forfeit is in neither case his property; but in one case, his rank or dignity: in the other case, his trade or his profession: and in both cases, his condition.
Other cases there are again in which the law, by a process of the same sort with that by which it constituted the former of the two above-mentioned conditions, confers on him an ideal object, which the laws of language have placed under the head of property. The law permits a man to sell books: that is, all sorts of books in general. Thus far all that it has done is to invest him with a condition: and this condition he would equally possess, although everybody else in the world were to sell books likewise. Let the law now take an active part in his favour, and prohibit all other persons from selling books of a certain description, he remaining at liberty to sell them as before. It therefore confers on him a sort of exclusive privilege or monopoly, which is called a copy-right. But by investing him with this right, it is not said to invest him with any new sort of condition: what it invests him with is spoken of as an article of property; to wit, of that sort of property which is termed incorporeal: and so on in the case of an engraving, a mechanical engine, a medicine; or, in short, of a saleable article of any other sort. Yet when it gave him an exclusive right of wearing a particular sort of ribbon, the object which it was then considered as conferring on him was not an article of property but a condition.
By forbearing to subject you to certain disadvantages, to which it subjects an alien, the law confers on you the condition of a natural-born subject: by subjecting him to them, it imposes on him the condition of an alien: by conferring on you certain privileges or rights, which it denies to a roturier, the law confers on you the condition of a gentilhomme; by forbearing to confer on him those privileges, it imposes on him the condition of a roturier. The rights, out of which the two advantageous conditions here exemplified are both of them as it were composed, have for their counterpart a sort of services of forbearance, rendered, as we have seen, not by private individuals, but by the law itself. As to the duties which it creates in rendering you these services, they are to be considered as duties imposed by the legislator on the ministers of justice.
It may be observed, with regard to the greater part of the conditions here comprised under the general appellation of civil, that the relations corresponding to those by which they are respectively constituted, are not provided with appellatives. The relation which has a name, is that which is borne by the party favoured to the party bound: that which is borne by the party bound to the party favoured has not any. This is a circumstance that may help to distinguish them from those conditions which we have termed domestic. In the domestic conditions, if on the one side the party to whom the power is given is called a master; on the other side, the party over whom that power is given, the party who is the object of that power, is termed a servant. In the civil conditions this is not the case. On the one side, a man, in virtue of certain services of forbearance, which the rest of the community are bound to render him, is denominated a knight of such or such an order: but on the other side, these services do not bestow any particular denomination on the persons from whom such services are due. Another man, in virtue of the legislator's rendering that sort of negative service which consists in the not prohibiting him from exercising a trade, invests him at his option with the condition of a trader: it accordingly denominates him a farmer, a baker, a weaver, and so on: but the ministers of the law do not, in virtue of their rendering the man this sort of negative service, acquire for themselves any particular name. Suppose even that the trade you have the right of exercising happens to be the object of a monopoly, and that the legislator, besides rendering you himself those services which you derive from the permission he bestows on you, obliges other persons to render you those farther services which you receive from their forbearing to follow the same trade; yet neither do they, in virtue of their being thus bound, acquire any particular name.
After what has been said of the nature of the several sorts of civil conditions that have names, the offences to which they are exposed may, without much difficulty, be imagined. Taken by itself, every condition which is thus constituted by a permission granted to the possessor, is of course of a beneficial nature: it is, therefore, exposed to all those offences to which the possession of a benefit is exposed. But either on account of a man's being obliged to persevere when once engaged in it, or on account of such other obligations as may stand annexed to the possession of it, or on account of the comparative degree of disrepute which may stand annexed to it by the moral sanction, it may by accident be a burthen: it is on this account liable to stand exposed to the offences to which, as hath been seen, every thing that partakes of the nature of a burthen stands exposed. As to any offences which may concern the exercise of the functions belonging to it, if it happens to have any duties annexed to it, such as those, for instance, which are constituted by regulations touching the exercise of a trade, it will stand exposed to so many breaches of duty; and lastly, whatsoever are the functions belonging to it, it will stand exposed at any rate to disturbance.
In the forming however of the catalogue of these offences, exactness is of the less consequence, inasmuch as an act, if it should happen not to be comprised in this catalogue, and yet is in any respect of a pernicious nature, will be sure to be found in some other division of the system of offences: if a baker sells bad bread for the price of good, it is a kind of fraud upon the buyer; and perhaps an injury of the simple corporal kind done to the health of an individual, or a neighbourhood: if a clothier sells bad cloth for good at home, it is a fraud; if to foreigners abroad, it may, over and above the fraud put upon the foreign purchaser, have pernicious effects perhaps in the prosperity of the trade at home, and become thereby an offence against the national wealth. So again with regard to disturbance: if a man be disturbed in the exercise of his trade, the offence will probably be a wrongful interception of the profit he might be presumed to have been in a way to make by it: and were it even to appear in any case that a man exercised a trade, or what is less unlikely, a liberal profession, without having profit in his view, the offence will still be reducible to the head of simple injurious restrainment, or simple injurious compulsion.