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I will make one other remark bearing upon the general value of Mr Bentham's scheme of classification.
Mr Bentham puts it forward ( 59) as one of the advantages of his method, that by it “the very place which any offense is made to occupy suggests the reason of its being put there.” And he observes (" 35, note) that “Usury which, if it must be an offense, is an offense committed with consent, that is, with the consent of the party supposed to be injured, cannot merit a place in the catalogue of offenses, unless the consent were either unfairly obtained or unfreely; in the first case it coincides with defraudment, in the second with extortion.” Mr Bentham afterwards wrote a work strongly condemning Usury Laws; and his disciples are in the habit of appealing to the indication of the absurdity of Usury Law afforded by the remark I have just quoted, (that they have no place in the systematic catalogue) as a triumphant evidence of the value of Bentham's system. But it is plain that the account which he has given of them is altogether different from that which has been entertained by the legislators who have enacted such laws. It is not as the remedy of wrong on the borrower, but as a part of the general guardianship of the State, that they are introduced. The State will not enforce contracts which are, on the whole, means of encouraging prodigality and gambling. There may or may not be, on such grounds, reason for Usury Laws. But there is no more difficulty in finding a place in a coherent system, for laws in protection of needy persons with precarious expectations, than in finding a place for laws in protection of minors or persons of imbecile understanding.
In order to assign the ground of my system, in a point in which it differs from his, I observe also, that Reputation, one of the heads of Mr Bentham's primary classes of Rights, is excluded from our primary division, as too factitious a right. We are led then to the persuasion, by this examination of Mr Bentham's system, that our general arrangement of Rights, as Rights of the Person, of Property, of Contract, of JFamily, and of Government, with an Appendix for Rights of Reputation, is more symmetrical and complete than Bentham's arrangement of Offenses, into Offenses against Person, Property, Reputation, and Condition, with an Appendix for Offenses of Falsehood, and Offenses against Trust.
BENTHAM–CLASSIFICATION OF OFFENSES
HAVE been considering Mr Bentham's classification of
offenses: the primary classes of that arrangement, Private Offenses, Semi-Public, Public, and Self-regarding Offenses, with an Appendix for Offenses of Falsehood and Offenses against Trust: and I have considered the Divisions of the First Class, according to his Heads, of Person, Property, Reputation and Condition. As I have already said, it appears to me that the Head of Condition, introduced by him, is not really very useful; being included in other relations, especially those of Family and Government; and that the Head of Contract, which he omits, is really necessary; and thus we were led to prefer, to this arrangement of Offenses, the one which we have given, of Offenses against Person, Property, Contract, Rights of Family, and Rights of Government.
This disposes of Bentham's First Class, Private Offenses, or Offenses against Individuals. I have already said that his leading division, Private Offenses, Semi-Public, Public, and Self-regarding, is a good and convenient one. Each of these classes will undergo subdivision, according to the Heads already noted for Private Offenses; namely, Person, Property, &c. But not any very large number of these genera require separate treatment, or indeed are really exact. A few examples only need be noted. The scheme is given below”.
- * SEMI-PUBLIC OFFENSEs. I. Against Person.
a. Through Calamity produced by imprudence or omission. 1 Pestilence or Contagion.
(Value of Classification of Offenses.) Of the value of a complete systematic arrangement of Offenses in a natural
b. Through mere Delinquency.
2 Simple Injurious as by threats for joining or forcing restraint to join in illuminations, acclama
3 Simple Injurious tions, undertakings, processions, compulsion &c.
Confinement by spoiling roads, bridges, ferries, pre-ocBanishment J cupying carriages or inns, &c. 6 Menacement against particular denominations, as Jews, Catholics, Protestants. 7 Distressful, horrifying, obscene, blasphemous exposures.
II. Against Property.
IV. Person and Property.
W. Condition in Marriage.
III. Person and Property.
order, there can be no doubt. As Bentham himself says on this point, “The particular uses of method are various, but
IV. Person and Reputation.
Improvident marriage. With regard to Public Offenses, Mr Bentham takes a wider range, and makes an independent arrangement (in a note to Par. Liv.)
I. Offenses against the external security of the State.
II. Offenses against Justice.
1 Against Judicial Trust, non-investment, interception, &c. (as before).
Breach of Judicial Trust. But “the offences are too
multifarious and too ill-provided with names to be
III. Offenses against the Preventive Branch of the Police.
V. Offenses against the Positive Increase of the National Felicity
Against Noso-comial trust.
Against Moro-comial trust.
Against Antembletic trust.
VI. Offenses against the Public Wealth.