13^ DIVISION OF OFFENCES.
xlY' ^^^^^ ^^' ^^^<^^g^ t^^ delinquency of the offender, ' — V' — ' 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 insohency; 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*.
Pa)iment, * The light in which the offence of insolvency is here exhibited, may perhaps at first consideration be apt to appear not only novel but improper. It may naturally enough appear, that when a man owes you a sum of money, for instance, the right to the money is your's already, and that what he v?ithholds from you by not paying you, is not the legal title to it, possession of it, or power over it, but the physical possession of it, or power over it, only. But upon a more accurate examination this will be found not to be the case. What is meant by payment, is always an act of investitive power, as above explained, an expression of an act of the will, and not a piiysical act: it is an act exercised with relation indeed to the thing said to be paid, but not in a physical sense exercised tipon it. A man who owes you ten pounds, takes up a handful of silver to that amount, and lays it down on a table at which you are sitting. If then by words, or gestures, or any means whatever, addressing himself to you^ he intimates it to be his will that you should take up the money, and do with it as you please, he is said to Next, with regard to such of the offences ^■"^^^ ° • XVI.
against property as concern, only the enjoyment ' — v — ' have paid you: but if the Case was, that he laid it down not for that purpose, but for some other, for instance, to count it and examine it, meaning to take it up again himself, or leave it for somebody else, he has not paid you: yet the physical acts, exercised upon the pieces of money in question, are in both cases the same. Till he does express a will to that purport, what you have is not, properly speaking, the legal possession of the money, or a right to the money, but only a right to have him, or in his default perhaps a minister of justice, compelled to render you that sort of service, by the rendering of which he is said to pay you: that is, to express such will as above-mentioned, with regard to some corporeal article, or other of a certain species, and of value equal to the amount of what he owes you: or, in other words, to exercise in your favour an act of investitive power with relation to some such article.
True it is, that in certain cases a man may perhaps not be deemed, according to common acceptation, to havepaH you, without rendering you a further set of services, and those of another sort: a set of services, which are rendered by the exercising of certain acts of a physical nature upon the very thing with which he is said to pay you: to wit, by transferring the thing to a certain place where you may be sure to find it, and where it may be convenient for you to receive it. But these services, although the obligation of rendering them should be annexed by law to the obligation of rendering those other services, in the performance of which the operation of payment properly consists, are plainly acts of a distinct nature • nor are they essential to the operation: by themselves they do not constitute it, and it may be performed without them. It must be performed without them wherever Ch^Y' o^ t^^ 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 case, the offence may be stiled wrongful zvithkolcling of services f. 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 the thing to be transferred happens to be already as much within the reach, physically speaking, of the creditor, as by any act of the debtor it can be made to be.
This matter would have appeared in a clearer light had it been practicable to enter here into a full examination of the nature of property, and the several modifications of which it is susceptible: but every thing cannot be done at once. * Supra xxvi.
t Under wrongful withholding of services is included breach of contract: the obligation to render services may be grounded either on contract, or upon other titles: in other words, the event of a man's engaging in a contract is one out of many other investitive events from which the right of receiving them may take its commencement. See ch. xvii. [Limits] Were the word services to be taken in its utmost latitude (negative included as well as positive) this one head would cover the whole law. To this place then are to be referred such services only, the withholding of which does not coincide with any of the other offences, for which seperate denominations have been provided.
DIVISION OF OFFENCES. 13' 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, al. though 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 stiled xvrongful detainme?it*. Wrongful * In the English law, detinue and detainer: detinue applied chiefly to moveables; detainer, to immoveables. Under 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 indifferent 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 detinue and detainer cases are also comprised, in which the offence consists in forbearing to transfer the legal possession of the thing • such cases may be considered as coming under the head of wrongful non-investment. The distinction between mere physical possession and legal possession, where the latter is short-lived and defeasible, seems scarcely hitherto to have been attended to. In a multitude of instances they are confounded under the same expressions. The cause is, that probably under all laws, and frequently for very good reasons, the legal possession, with whatever certainty defeasible upon the event of a trial, is, down to the time of that event, in many cases annexed to the appearance of the physical.
* In attempting to exhibit the import belonging to this and other names of offences in common use, I must be understood to speak all along with the utmost diffidence. The truth is, the import given to them is commonly neither determinate nor uniform: so that in the nature of things, no definition that can be given of them by a private person can be altogether an exact one. To fix the sense of them belongs only to the legislator.
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 M 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 defraudmcnt *. If not * The remaining cases come under the head of usurpation, or wrongful investment of property. The distinction seems hardly hitherto to have been attended to: it turns like an- *38 DIVISION OF OFFENCES.
^**- freely obtained, it was obtained by force: to wit, ' — V — ' either by a force put upon tlie 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 extortmi. 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 amenother, mentioned above, upon the distinction between legal possession and physical. The same observation may be apphed to the case of extortion hereafter following. * Vide supra, xxvii.
able 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, tliis 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 *. 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. 1. Wrongful non-investment of property. 2. Wrongful interception of property. 3. Wrongful divestment of property. 4. Usurpation * Usury, which, if it must be an offence, is an offence committed with consent, that is, with the consent of the party supposed to be injured, cannot merit a place in the catalogue of offences, unless the consent were either unfairly obtained or unfreely • in the first case, it coincides with defraudment; in the other, with extortion.
HO DIVISION OF OFFENCES.
Chap, of property. 5. Wrongful investment of property.
^ — V — ' 6. Wrongful withholding of services. 7- Wrongful destruction or endamagement. 8. Wrongful occupation. 9' Wrongful detainment. 10. Embezzlement. 11. Theft. 12. Defraudment. 13. Extortion *.
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 preceeding points at once.
XXXVI.
Offences First then, with regard to offences which affect son and re- pcrsou and reputation together. When any man, pu a ion. ^^ ^ mode of treatment which affects the person.
* I. Semi-public offences. 1. Wrongful divestment, interception, usurpation, &c. of valuables, which are the property of a corporate body; or which are in the indiscriminate occupation of a neighbourhood; such as parish churches, altars, relicks, and other articles appropriated to the purposes of religion: or things which are in the indiscriminate occupation of the public at large; such as mile-stones, market-houses, exchanges, public gardens, and cathedrals. 2. Setting on foot what have been called bubbles, or fraudulent partnership, or gaming adventures; propagating false news, to raise or sink the value of stocks, or of any other denomination of property.
II. Self-regarding offences. 1. Idleness. 2. Gaming. 3. Other species of prodigality.
injures the reputation of another, his end and Chap. purpose must have been either his own immediate ' — v — ' 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 fi'om 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 appetite *. 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 oflPence 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 stopt 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 See ch. v. [Pleasures and Pains.]
^yj' 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 stiled a corporal insult; in the other, it may come under the name of insulting menacement. And thus we have six genera, or kinds 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 *.
XXXVII.
Offences Sccoudly, with respect to those which afiPect against per-" son and pcrsoH Eud 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 f. 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 * I. Semi-public offences — none, II. Self-regarding offences. 1. Sacrifice of virginity. 2, Indecencies not public. t Supra.
not happen to have given any new denomination Chap. to the offence *. In all or any of these cases, "" — v — ' however, by prefixing the epithet /orciZ'/e, 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 immoveables, 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 /orci^/e entry: forcible detainment, as applied also to immoveables, but only to immoveables, has obtained, among lawyers at least, the name oi forcible detainer f. And thus we may * In the technical language of the English law, property so acquired is said to be acquired by duress.
t Applied to moveables, the circumstance of force has never, at least by the technical part of the language, been taljen into account: no such combination of terms as forcible occupation is in current use. The word detinue is applied to moveables only: and (in the language of the law) the word forcible has never been combined with it. The word applied distinguish 1 0 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 moveables. 7. Forcible entry. 8. Forcible detainment of moveables. 9. Forcible detainment of immoveables. ] 0. Robbery *.
XXXVIII.
Offences We comc now to offences against condition, A dmon.— °"' man's condition or station in life is constituted by domesticor the legal relation he bears to the persons who are about him; that is, as we have already had occasion to shew f, by duties, which, by being imposed on one side, give birth to rights or powers on the other. These relations, it is evident, may be almost infinitely diversified. Some means, however, may be found of circumscribing the field to immoveables is detainer: this is combined with the word forcible: and what is singular, it is scarcely in use without that word. It was impossible to steer altogether clear of this technical nomenclature, on account of the influence which it has on the body of the language.
II. Self-regarding offences — none.
t Supra. XXV. note.
within which the varieties of them are displayed. In the first place, they must either be such as are capable of displaying themselves within the circle of a private family, or such as require a larger space. The conditions constituted by the former sort of relations may be stiled domestic: those constituted by the latter, civil.
XXXIX.
XXXIX.
As to domestic conditions, the legal relations by Domestic which they are constituted may be distinguished grounded^oi into 1. Such as are superadded to relations purely ia^tJ"nsi,fps. natural: and 2. Such as, without any such natural basis, subsist purely by institution. By relations purely natural, i mean those which may be said to subsist between certain persons in virtue of the concern which they themselves, or certain other persons, have had in the process which is necessary to the continuance of the species. These relations may be distinguished, in the first place, into contiguous and uncontiguous. The uncontiguous subsist through tiie intervention of such as are contiguous. The contiguous may be distinguished, in the first place, into corpiubial, and post-coimubial*. Those which may be termed * By the terms connubial and post-connubial, all I mean at present to bring- to view is, the mere physical union, apart from the ceremonies and legal engagements that will afterwards be considered as accompanying it.
VOL. II. L Chap, connubial are two: 1. That which the male bears ' — V — ' towards the female: 2. That which the female bears to the male*. The post-connubial are either productive or deri'Cative. The productive is that which the male and female above-mentioned bear each of them towards the children who are Relations— * The vague and undetermined nature of the fictitious from every entity, Called a relation, is, on accasions like the present, apt two objects, to be productive of a good deal of confusion. A relation is either said to be borne by one of the objects which are parties to it, to the other, or to subsist between them. The latter mode of phraseology is, perhaps, rather the more common. In such case the idea seems to be, that from the consideration of the two objects there results but one relation, which belongs as it were in common to them both. In some cases, this perhaps may answer the purpose very well: it will not, however, in the present case. For the present purpose it will be necessary we should conceive two relations as resulting from the two objects, and borne, since such is the phrase, by the one of them to or towards the other: one relation borne by the first object to the second: another relation borne by the second object to the first. This is necessary on two accounts: 1. Because for the relations themselves there are in many instances separate names: for example, the relations of guardianship and wardship: in which case, the speaking of them as if they were but one, may be productive of much confusion. 2. Because the two different relationships give birth to so many conditions: which conditions are so far different, that what is predicated and will hold good of the one, will, in various particulars, as we shall see, not hold good of the other.
the immediate fruit of their union; this is termed the relation of pareutaUtij. Now as the parents must be, so the children may be, of different sexes^ Accordingly the relation of parentality may be distinguished into four species: 1. That which a father bears to his son: this is termed paternity. 2. That which a father bears to his daughter: this also is termed paternity. 3. That which a mother bears to her son: this is called maternity. 4. That which a mother bears to her daughter: this also is termed maternity. Uncontiguous natural relations may be distinguished into immediate and remote. Such as are immediate, are what one person bears to another in consequence of their bearing each of them one simple relation to some third person. Thus the paternal grandfather is related to the paternal grandson by means of the two different relations, of different kinds, which together they bear to the father: the brother on the father's side, to the brother by means of the two relations of the same kind, which together they bear to the father. In the same manner we might proceed to find places in the system for the infinitely-diversified relations which result from the combinations that may be formed by mixing together the several sorts of relationships by ascent, relationships by decent, collateral relationships, and relationships by affinity: which latter, when the union between the two parties through whom the affinity takes place is Chap, sanctioned by matrimonial solemnities, are termed — V — ' relationsliips by marriage. But this, as it would be a most intricate and tedious task, so happily is it, for the present purpose, an unnecessary one. The only natural relations to which it will be necessary to pay any particular attention, are those which, when sanctioned bylaw, give birth to the conditions of husband and wife, the two relations comprized under the head of parentality, and the corresponding relations comprized under the head filiality or filiation.
What then are the relations of a legal kind which can be superinduced upon the above-mentioned natural relations? They must be such as it is the nature of law to give birth to and establish. But the relations which subsist purely by institution exhaust, as we shall see, the whole stock of relationships which it is in the nature of the law to give birth to and establish. The relations then which can be superinduced upon those which are purely natural, cannot be in themselves any other than what are of the number of those which subsist purely by institution: so that all the difference there can be between a legal relation of the one sort, and a legal relation of the other sort, is, that in the former case the circumstance which gave birth to the natural relation serves as a mark to indicate where the legal relation is to fix: in the latter case, the place where the legal relation is to attach is determined not by that circumstance but DIVISION OF OFFENCES. ^^^ by some other. From these considerations it will ^«^^-appear manifestly enough, that for treating of the ' — v — ' several sorts of conditions, as well natural as purely conventional, in the most commodious order, it will be necessary to give the precedence to the latter. Proceeding throughout upon the same principle, we shall all along give the priority, not to those which are first by nature, but to those which are most simple in point of description. There is no other way of avoiding perpetual anticipations and repetitions.
XL.
We come now to consider the domestic or Domestic family relations, which are purely of legal insti- which are tution. It is to these in effect, that both kinds leg'ai mstituof domestic conditions, considered as the work of "'"' law, are indebted for their origin. When the law? no matter for what purpose, takes upon itself to operate, in a matter in which it has not operated before, it can only be by imposing obligation*. Now when a legal obligation is imposed on any man, there are but two ways in which it can in the first instance be enforced. The one is by giving the power of enforcing it to the party in whose favour it is imposed: the other is by reserving that power to certain third persons, who, in virtue of their possessing it, are stiled ministers of justice. In the first case, the party favoured is said to * See ch. xvii. [Limits] ^ iii.
^^^^- possess not only a light as against the party "^ ' obliged, but also a power over him: in the second case, a right only, uncorroborated by power. In the first case, the party favoured may be stiled a superior, and as they are both members of the same family, a domestic superior, with reference to the party obliged: who, in the same case, may be stiled a domestic inferior, with reference to the party favoured. Now in point of possibility, it is evident, that domestic conditions, or a kind of fictitious possession analogous to domestic conditions, might have been looked upon as constituted, as well by rights alone, without powers on either side, as by powers. But in point of utility* it * Two persons, who by any means stand engaged to live together, can never live together long, but one of them will choose that some act or other should be done, which the other will choose should not be done. When this is the case, how is the competition to be decided? Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certain means of deciding it but physical power: which indeed is the very means by which family, as well as other competitions, must have been decided long before any such office as that of legislator had existence. This then being the order of things which the legislator finds established by nature, how should he do better than to acquiesce in it? The persons who by the influence of causes that prevail every where, stand engaged to live together, are, 1. Parent and child, during the infancy of the latter: 2. Man and wife: 3. Children of the same parents. Parent and child, by necessity: since, if the child did not live with the parent (or does not seem expedient: and in point of fact, probably owing to the invariable perception which with somebody standing in the place of the parent) it could not live at all: husband and wife, by a choice approaching to necessity: children of the same parents, by the necessity of their living each of them with the parents. As between parent and child, the necessity there is of a power on the part of the parent for the preservation of the child supersedes all farther reasoning. As between man and wife, that necessity does not subsist. The only reason that applies to this case is, the necessity of putting an end to competition. The man would have the meat roasted, the woman boiled: shall they both fast till the judge comes in to dress it for them? The woman would have the child dressed in green; the man, in blue: shall the child be naked till the judge comes in to clothe it? This affords a reason for giving a power to one or other of the parties: but it affords none for giving the power to the one rather than to the other. How then shall the legislator determine? Supposing it equally easy to give it to either, let him look ever so long for a reason why he should give it to the one rather than to the other, and he may look in vain. But how does the matter stand already? for there were men and wives (or, what comes to the same thing, male and female living together as man and wife) before there were legislators.
Looking round him then, he finds almost every where the male the stronger of the two; and therefore possessing already, by purely physical means, that power which he is thinking of bestowing on one of them by means of law. How then can he do so well as by placing the legal power in the same hands which are beyond comparison the more likely to be in possession of the physical? in this way, few transgressions, and few calls for punishment: in the other way, perpetual transgressions, and perpetual calls for punishment. Solon is said to have transferred the same idea to the distribution of state Chat. XVI.
Chap, m^n miist have had of the inexpediency, no such ^ — V — ' conditions seem ever to have been constituted by such feeble bands. Of the legal relationships then, which are capable of being made to subsist within the circle of a family, there remain those only in which the obligation is enforced by power. Now then, wherever any such power is conferred, the end or purpose for which it was conferred (unless the legislator can be supposed to act without a motive) must have been the producing of a benefit to somebody: in other words, it must have been conferred for the sake of somebody. The person then, for whose sake it is conferred, must either be one of the two parties just mentioned, or a third party: if one of these two, it must be either the superior or the inferior. If the superior, such superior is commonly called a master; and the inferior is termed his servant: and the power may be termed a benejicial one. If it be for the sake of the inferior that the power is established.
powers. Here then was generalization: here was the work of genius. But in the disposal of domestic power, every legislator, without any effort of genius, has been a Solon. So much for reason*: add to which, in ^oint of motives f, that legislators seem all to have been of the male sex, down to the days of Catherine. I speak here of those who frame laws, not of those who touch them with a sceptre.
• Social motives: s^-nipathy for the public '• love uf reputation, &c.
t Self-regarding motives; or social motives, which are social in a less extent: 53 mpatlij for persons of a particular description: persons of the aaiae sex.
the superior is termed a guardian; and the inferior C" Y" his ward: and the power, being thereby coupled '^ — v — ' with a trust, may be termed a fiduciary one. If for the sake of a third party, the superior may be termed a super iiit endant; and the inferior his suhordinaU. This third party will either be an assignable individual or set of individuals, or a set of unassignable individuals. In this latter case the trust is either a public or a semi-public one: and the condition which it constitutes is not of the domestic, but of the civil kind. In the former case, this third party or principal, as he may be termed, either has a beneficial power over the superintendant, or he has not: if he has, the superintendant is his servant, and consequently so also is the subordinate: if not, the superintendant is the master of the subordinate; and all the advantage which the principal has over his superintendant, is that of possessing a set of rights, uncorroborated by power; and therefore, as we have seen*, not fit to constitute a condition of the domestic kind. But be the condition what it may which is constituted by these rights, of what nature can the obligations be, to which the superintendant is capable of being subjected by means of them? They are neither more nor less than those which a man is capable of being subjected to by powers. It follows, therefore, that the functions of * Supra, note, page 150.
15* DIVISION OF OFFENCES.
a principal and his superintendant coincide with those of a master and his servant; and consequently that the offences relative to the two former conditions will coincide with the offences relative to the two latter.
XLI.
SucWngtiie Offences to which the condition of a master, rml"tw °^ ^^^^ ^^y other kind of condition, is exposed, may, as hath been already intimated*, be distinguished into such as concern the existence of the condition itself, and such as concern the performance of the functions of it, while subsisting. First then, with regard to such as affect its existence. It is obvious enough that the services of one man may be a benefit to another: the condition of a master may therefore be a beneficial one. It stands exposed, therefore, to the offences of wrongful non-investment, wrongful interception, usurpation, wrongful investment, and wrongful divestment. But how should it stand exposed to the offences of wrongful abdication, wrongful detrectation, and wrongful imposition? Certainly it cannot of itself; for services, when a man has the power of exacting them or. not, as he thinks fit, can never be a burthen. But if to the powers, by which the condition of a master is constituted, the law thinks fit to annex any obligation on the part of the master; for instance, that of affording main- * Vide supra, xxvii.