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, 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 euch 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.
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 furfil. 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: 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.
XXVI. n the first place, as there are, or at least may be (as we shall see) conditions which are not trusts, 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 baneficial. 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. 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 innumerablyvarious: butthe 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.