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. 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, 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. [*] 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; 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. [*] 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. Tn 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 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. 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 infiuence 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, 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. 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. 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. 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 cxplained 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.