tenance, or giving wages, to the servant, or pay- Chap. ing money to any body else, it is evident, tliat in ^ — ^ virtue of such obligation the condition may become a burthen. In this case, however, the condition possessed by the master will not, properly speaking, be the pure and simple condition of a master: it will be a kind of complex object, resolvable into the beneficial condition of a master, and the burthensome obligation which is annexed to it-Still however, if the nature of the obligation lies within a narrow compass, and does not, in the manner of that which constitutes a trust, interfere with the exercise of those powers by which the condition of the superior is constituted, the latter, notwithstanding this foreign mixture, will still retain the name of mastership *. In this case, therefore, but not otherwise, the condition of a master may stand exposed to the offences of wrongful abdication, wrongful detrectation, and wrongful imposition. Next as to the behaviour of persons, with reference to this condition, while considered as subsisting. In virtue of its being a * In most civilized nations there is a sort of domestic condition, in which the superior is termed a master, while the inferior is termed sometimes indeed a servant, but more particularly and more frequently an apprentice. In this case, though the superior is, in point of usage, known by no other name than that of a master, the relationship is in point of fact a mixt one, compounded of that of master and that of guardian.
^"^^^- benefit, it is exposed to disturbance. This disturb-"^ ' ance will either be the offence of a stranger, or the offence of the servant himself Where it is the offence of a stranger, and is committed by taking the person of the servant, in circumstances in which the taking of an object belonging to the class of things would be an act of theft, or (what is scarcely worth distinguishing from theft) an act of embezzlement, it may be termed servant -stealing. Where it is the offence of the servant himself, it is stiled breach of duty. Now the most flagrant species of breach of duty, and that which includes indeed every other, is that which consists in the servant's withdrawing himself from the place in which the duty should be performed. This species of breach of duty is termed elopement. Again, in \artue of the power belonging to this condition, it is liable, on the part of the master, to abuse. But this power is not coupled with a trust. The condition of a master is therefore not exposed to any offence which is analogous to breach of trust.
Lastly, on account of its being exposed to abuse, it may be conceived to stand, in point of possibility, exposed to bribery. But considering how few, and how insignificant, the persons are who are liable to be subject to the power here in question, this is an offence which, on account of the want of temptation, there will seldom be any example of in practice. We may therefore reckon thirteen sorts of offences to which the condition of a master is exposed; viz. 1. Wrongful non-investment of Chap. mastership. 2. Wrongful interception of master- ' — v — ' ship. 3. Wrongful divestment of mastership. 4. Usurpation of mastership. 5. Wrongful investment of mastership. 6. Wrongful abdication of mastership. 7- Wrongful detrectation of mastership. 8. Wrongful imposition of mastership. 9. Abuse of mastership. 10. Disturbance of mastership. 1 ]. Breach of duty in servants. 12. Elopement of servants. 13. Servant-stealing.
XLII.
As to the power by which the condition of a Various master is constituted, this may be either limited or servitude. unlimited. When it is altogether unlimited, the condition of the servant is stiled pure slavery. But as the rules of language are as ffir as can be conceived from being steady on this head, the term slavery is commonly made use of wherever the limitations prescribed to the power of the master are looked upon as inconsiderable. Whenever any such limitation is prescribed, a kind of fictitious entity is thereby created, and, in quality of an incorporeal object of possession, is bestowed upon the servant: this object is of the class of those which are called rights: and in the present case is termed, in a more particular manner, a liberty: and sometimes a privilege, an immunity or an e:vemption. Now those limitations on the one hand, and these liberties on the other, may, it is evident, be as various as the acts (positive or negative) Chap, which the master may or may not have the power *■ — V — ' of obliging the servant to submit to or to perform. Correspondent then to the infinitude of these liberties, is the infinitude of the modifications which the condition of mastership (or, as it is more common to say in such a case, that of servitude) admits of. These modifications, it is evident, may, in different countries, be infinitely diversified. In different countries, therefore, the offences characterised by the above names will, if specifically considered, admit of very different descriptions. If there be a spot upon the earth so wretched as to exhibit the spectacle of pure and absolutely unlimited slavery, on that spot there will be no such thing as any abuse of mastership; which means neither more nor less than that no abuse of mastership will there be treated on the footing of an offence. As to the question. Whether any, and what, modes of servitude ought to be established or kept on foot? this is a question, the solution of which belongs to the civil branch of the art of legislation.
XLIII.
Offences Ncxt, with regard to the offences that may 2hkfn'^Jf^ ^^'^^^^'^ the condition of a servant. It might a servant, gggj^i ^t first sight, that a condition of this kind could not have a spark of benefit belonging to it: that it could not be attended with any other consequences than such as rendered it a mere burthen. But a burthen itself may be a benefit, in comparisen of a greater burthen. Conceive a man's Chap. situation then to be such^ that he must, at any ' — v — ' rate, be in a state of pure slavery. Still may it be material to him, and highly material, who the person is whom he has for his master. A state of slavery then, under one master, may be a beneficial state to him, in comparison with a state of slavery under another master. The condition of a servant then is exposed to the several offences to which a condition, in virtue of its being a beneficial one, is exposed *. More than this, where the power of the master is limited, and the limitations annexed to it, and thence the liberties of the servant, are considerable, the servitude may even be positively eligible. For amongst those limitations may be such as are sufficient to enable the servant to possess property of his own: being capable then of possessing property of his * It may seem at first, that a person who is in the condition of a slave, could not have it in his power to engage in such course of proceeding as would be necessary, in order to give him an apparent title to be reckoned among the slaves of another master. But though a slave in point of right, it may happen that he has eloped for instance, and is not a slave in point fact: or, suppose him a slave in point of fact, and ever so vigilantly guarded, still a person connected with him by the ties of sympathy, might do that for him which, though willing and assenting, he might not be able to do for himself: might forge a deed of donation, for example, from the one master to the other.
Chap. Qwii, he may be capable of receiving it from his ^^ — V — ' master: in short, he may receive xvages, or other emolmiients, from his master; and the benefit resulting from these wages may be so considerable as to outweigh the burthen of the servitude, and, by that means, render that condition more beneficial upon the whole, and more eligible, than that of one who is not in any respect under the controul of any such person as a master. Accordingly, by these means the condition of the servant may be so eligible, that his entrance into it, and his continuance in it, may have been altogether the result of his own choice. That the nature of the two conditions may be the more clearly understood, it may be of use to shew the sort of correspondency there is between the offences which affect the existence of the one, and those which affect the existence of the other. That this correspondency cannot but be very intimate is obvious at first sight. It is not, however, that a given offence in the former catalogue coincides with an offence of the same name in the latter catalogue: usurpation of servantship with usurpation of mastership, for example. But the case is, that an offence of one denomination in the one catalogue coincides with an offence of a different denomination in the other catalogue. Nor is the coincidence constant and certain: but liable to contingencies, as we shall see. First, then, wrongful non-investment of the condition of a servant, if it be the offence of one who should have been the CuaJ". master, coincides with. wrongful detrectation of ^ — srmastership: if it be the offence of a third person, it involves in it non-investment of mastership, which, pro\'ided the mastership be in the eyes of him who should have been master a beneficial thing, but not otherwise is wrongful. 2. Wrongful interception of the condition of a servant, if it be the offence of him who should have been master, coincides with wrongful detrectation of mastership: if it be the offence of a third person, and the mastership be a beneficial thing, it involves in it wrongful interception of mastership. 3. Wrongful divestment of servantship, if it be the offence of the master, but not otherwise, coincides with wrongful abdication of mastership: if it be the offence of a stranger, it involves in it divestment of mastership, which, in as far as the mastership is a beneficial thing, is wrongful. 4. Usurpation of servantship coincides necessarily with wrongful imposition of mastership: it will be apt to involve in it wrongful divestment of mastership: but this only in the case where the usurper, previously to the usurpation, was in a state of servitude under some other master. 5. Wrongful investment of servantship (the servantship being considered as a beneficial thing) coincides with imposition of mastership; which, if in the eyes of the pretended master the mastership should chance to be a burthen, will be wrongful. 6. Wrongful VOL. II. M Chap, abdication of servantship coincides with wrongful ' — V — ' divestment of mastership. 7. Wrongful detrectation of servantship, with wrongful non-investment of mastership. 8. Wrongful imposition of servantship, if it be the offence of the pretended master, coincides with usurpation of mastership: if it be the offence of a stranger, it involves in it imposition of mastership, which, if in the eyes of the pretended master the mastership should be a burthen, will be wrongful. As to abuse of mastership, disturbance of mastership, breach of duty in servants, elopement of servants, and servantstealing, these are offences which, without any change of denomination, bear equal relation to both conditions. And thus we may reckon thirteen sorts of offences to which the condition of a servant stands exposed: viz. 1. Wrongful noninvestment of servantship. Q. Wrongful interception of servantship. 3. Wrongful divestment of servantship. 4. Usurpation of servantship. 5. Wrongful investment of servantship. 6. Wrongful abdication of servantship. 7. Wrongful detrectation of servantship. 8. Wrongful imposition of servantship. 9- Abuse of mastership. 10. Disturbance of mastership. 11. Breach of duty in servants. 12. Elopement of servants. 13. Servant-stealing.
XLIV.
Gardian- Wc now comc to thc offcnccs to which the condis ip,w a — tJQjjQf jjgy^j.^jjjjj jg exposed. A guardian is one who DIVISION OF OFFENCES. 1<S3 is invested with power over another, living within ^^^' the compass of the same family, and called a ward; ^^~^^^f the power being to be exercised for the benefit of '.^^^'^s^*"' the ward. Now then, what are the cases in which it can be for the benefit of one man, that another, living within the compass of the same family, should exercise power over him? Consider either of the parties by himself, and suppose him, in point of understanding, to be on a level with the other, it seems evident enough that no such cases can ever exist*. To the production of happiness on the part of any given person (in like manner as to the production of any other effect which is the result of human agency) three things it is necessary should concur: knowledge, inclination, and physical power. Now as there is no man who is so sure of being inclined, on all occasions, to promote your happiness as you yourself are, so neither is there any man who upon the whole can have had so good opportunities as you must have had of knowing what is most conducive to that purpose. For who should know so well as you * Consider them together indeed, take the sum of the two interests, and the case, as we have seen (supra, xl.) is then the reverse. That case, it is to be remembered, proceeds only upon the supposition that the two parties are obliged to live together; for suppose it to be at their option to part, the necessity of establishing the power ceases.
CuAv. do what it is that gives you pain or pleasure*? ' — V — ' Moreover, as to power, it is manifest that no superiority in this respect, on the part of a stranger, could, for a constancy, make up for so great a deficiency as he must lie under in respect of two such material points as knowledge and inclination. If then there be a case where it can be for the advantage of one man to be under the power of another, it must be on account of some palpable and very considerable deficiency, on the part of the former, in point of intellects, or (which is the same thing in other words) in point of knowledge or understanding. Now there are two cases in which such palpable deficiency is known to take place. These are, ]. Where a man's intellect is not yet arrived at that state in which it is capable of directing his own inclination in the pursuit of happiness: this is the case of infancy \. 2. Where by some particular known or unknown circumstance his intellect has either never arrived at that state, or having arrived at it has fallen from it: which is the case of insanity.
By what means then is it to be ascertained whether a man's intellect is in that state or no? For exhibiting the quantity of sensible heat in a human body we have a very tolerable sort of instrument, the thermometer; but for exhibiting * Ch. xvii. [Limits] § i. f See oh. xiii. [Cases unmeet] § iii.
the quantity of intelligence, we have no such instrument. It is evident, therefore, that the line which separates the quantity of intelligence which is sufficient for the purposes of self-government from that which is not sufficient, must be, in a great measure, arbitrary. Where the insufficiency is the result of want of age, the sufficient quantity of intelligence, be it what it may, does not accrue to all at the same period of their lives. It becomes therefore necessary for legislators to cut the gordian knot, and fix upon a particular period, at which and not before, truly or not, every person whatever shall be deemed, as far as depends upon age, to be in possession of this sufficient quantity *. In this case then a line is drawn which may be the same for every man, and in the description of * In certain nations, women, whether married or not, have been placed in a state of perpetual wardship: this has been evidently founded on the notion of a decided inferiority in point of intellects on the part of the female sex, analogous to that which is the result of infancy or insanity on the part of the male. This is not the only instance in which tyranny has taken advantage of its own wrong, alleging as a reason for the domination it exercises, an imbecillity, which, as far as it has been real, has been produced by the abuse of that very power which it is brought to justify. Aristotle, fascinated by the prejudice of the times, divides mankind into two distinct species, that of freemen, and that of slaves. Certain men were borne to be slaves, and ought to be slaves. — Why? Because they are so.
Chap.
XVI.
Chap.
XVI.
Chap- which, such as it is, whatever persons are con-* — V — ' cerned may be certain of agreeing: the circumstance of time affording a mark by which the line in question may be traced with the utmost degree of nicety. On the other hand, where the insufficiency is the result of insanity, there is not even this resource: so that here the legislator has no other expedient than to appoint some particular person or persons to give a particular determination of the question, in every instance in winch it occurs, according to his or their particular and arbitrary discretion. Arbitrary enough it must be at any rate, since the only way in which it can be exercised is by considering whether the share of intelligence possessed by the individual in question does or does not come up to the loose and indeterminate idea which persons so appointed may chance to entertain with respect to the quantity which is deemed sufficient.
XLV.
Duration to The liuc thcu being drawn, or supposed to be to it. SO, it IS expedient to a man who cannot, with safety to himself, be left in his own power, that he should be placed in the power of another. How long then should he remain so? Just so long as his inability is supposed to continue: that is, in the case of infancy, till he. arrives at that period at which the law deems him to be of full age: in the case of insanity, till he be of sound mind and understanding. Now it is evident, that this period, in the case of infancy, may not arrive for a considerable time: and in the case of insanity, perhaps never. The duration of the power belonging to this trust must therefore, in the one case, be very considerable; in the other case, indefinite.
XLVI.
The next point to consider, is what mail be the P""'^'^* ^}^^ ^ ^ may, aim extent of it? for as to what ous,ht to be, that is a ^i^^ks that ^ ought to be matter to be settled, not in a general analytical annexed to sketch, but in a particular and circumstantial dissertation. By possibility, then, this power may possess any extent that can be imagined: it may extend to any acts which, physically speaking, it may be in the power of the ward to perform himself, or be the object of if exercised by the guardian. Conceive the power, for a moment, to stand upon this footing: the condition of the ward stands now exactly upon a footing with pure slavery. Add the obligation by which the power is turned into a trust: the limits of the power are now very considerably narrowed. What then is the purport of this obligation? Of what nature is the course of conduct it prescribes? It is such a course of conduct as shall be best calculated for procuring to the ward the greatest, quantity of happiness which his faculties, and the circumstances he is in, will admit of: saving always, in the first place, the regard which the guardian is permitted to shew to liis own happiness; and, in the second place, that which he is obliged, as well as permitted, to shew to that of other men. This is, in fact, no other than that course of conduct which the ward, did he but know how, ought, in point of prudence, to maintain of himself: so that the business of the former is to govern the latter precisely in the manner in which this latter ought to govern himself Now to instruct each individual in what manner to govern his own conduct in the details of life, is the particular business of private ethics: to instruct individuals in what manner to govern the conduct of those whose happiness, during non-age, is committed to their charge, is the business of the art of private education. The details, therefore, of the rules to be given for that purpose, any more than the acts which are capable of being committed in violation of those rules, belong not to the art of legislation: since, as will be seen more particularly hereafter*, such details could not, with any chance of advantage, be provided for by the legislator. Some general outlines might indeed be drawn by his authority: and, in point of fact, some are in every civilized state. But such regulations, it is evident, must be liable to great variation: in the first place, according to the infinite diversity of civil conditions which a man See ch. xvii. [Limits] § i.
may stand invested with in any given state: in the next place, according to the diversity of local circumstances that may influence the nature of the conditions which may chance to be established in different states. On this account, the offences which would be constituted by such regulations could not be comprised under any concise and settled denominations, capable of a permanent and extensive application. No place, therefore, can be allotted to them here.
XLVII.
By what has been said, we are the better pre- ^IfcEthe pared for taking an account of the offences to a°?uardbil*^ which the condition in question stands exposed. Guardianship being a private trust, is of course exposed to those offences, and no others, by which a private trust is liable to be affected. Some of them, however, on account of the special quality of the trust, will admit of some further particularity of description. In the first place, breach of this species of trust may be termed mismanagement of guardianship: in the second place, of whatever nature the duties are, which are capable of being annexed to this condition, it must often happen, that in order to fulfil them, it is necessary the guardian should be at a certain particular place. Mismanagement of guardianship, when it consists in the not being, on the occasion in question, at the place in question, may be termed desertion of guardianship.
1/0 DIVISION OF OFFENCES. ' Third, It is manifest enough, that the object which the guardian ought to propose to himself, in the exercise of the powers to which those duties are annexed, is to procure for the ward the greatest quantity of happiness which can be procured for him, consistently with the regard which is due to the other interests that have been mentioned: for this is the object which the ward would have proposed to himself, and might and ought to have been allowed to propose to himself, had he been capable of governing his own conduct. Now, in order to procure this happiness, it is necessary that he should possess a certain power over the objects on the use of which such happiness depends. These objects are either the person of the ward himself, or other objects that are extraneous to him. These other objects are either things or persons. As to things then, objects of this class, in as far as a man's happiness depends upon the use of them, are stiled his property. The case is the same with the services of any persons over whom he may happen to possess a beneficial power, or to whose services he may happen to possess a beneficial right. Now when property of any kind, which is in trust, suffers by the delinquency of him with whom it is in trust, such offence, of whatever nature it is in other respects, may be stiled dissipation in breach of trust: and if it be attended with a profit to the trustee, it may be stiled peculation*. Fourth, For one person to exercise a power Chap.
of any kind over another, it is necessary that the ' — ^ — ' latter should either perform certain acts, upon being commanded so to do by the former, or at least should suffer certain acts to be exercised upon himself. In this respect a ward must stand upon the footing of a servant: and the condition of a ward must, in this respect, stand exposed to the same offences to which that of a servant stands exposed: that is, on the part of a stranger, to disturbance, which in particular circumstances, will amount to theft: on the part of the ward, to breach of duty: which, in particular circumstances, may be effected by elopement. Fifth, There does not seem to be any offence concerning guardianship that corresponds to abuse of trust: I mean in the sense to which the last-mentioned denomination has been here confined f. The reason is, that guardianship, being a trust of a private nature, does not, as such, confer upon the trustee any power, either over the persons or over the property of any party, other than the beneficiary himself. If by accident it confers on the trustee a power over any persons whose services constitute a part of the property of the beneficiary, the trustee becomes thereby, in certain respects, the master of such servants J. Sixth, Bribery also is a sort of offence to which, in this case, there * Supra, XXXV. t Vide supra, xxv. \ Vide supra, xl.
Chap. {§ uot commonly much temptation. It is an "■ — ■^ — ' offence, however, which by possibility is capable of taking this direction: and must therefore be aggregated to the number of the offences to which the condition of a guardian stands exposed. And thus we have in all seventeen of these offences: viz. 1. Wrongful non-investment of guardianship. 2. Wrongful interception of guardianship. 3. Wrongful divestment of guardianship. 4. Usurpation of guardianship. 5. Wrongful investment of guardianship. 6. Wrongful abdication of guardianship. 7- Detrectation of guardianship. 8. Wrongful imposition of guardianship. Q. Mismanagement of guardianship. 10. Desertion of guardianship. 11. Dissipation in prejudice of wardship. 1 2. Peculation in prejudice of wardship. 13. Disturbance of guardianship. 14. Breach of duty to guardians. ]5. Elopement from guardians. 16. War4-stealing. 17. Bribery in prejudice of wardship.
XLVIII.
OfFences Ncxt, with regard to offences to which the concondition ofdition of wardship is exposed. Those which first affect the existence of the condition itself are as follows: 1. Wrongful non-investment of the condition of a ward. This, if it be the offence of one who should have been guardian, coincides with wrongful detrectation of guardianship: if it be the offence of a third person, it involves in it non-investment of guardianship, which, provided DIVISION OF OFFENCES. IT'S the guardianship is, in the eyes of him who should Chap. have been guardian, a desirable thing, is wrongful. ' — v — i 2. Wrongful interception of wardship. This, if it be the offence of him who should have been guardian, coincides with wrongful detrectation of guardianship: if it be the offence of a third person, it involves in it interception of guardianship, which, provided the guardianship is, in the eyes of him who should have been guardian, a desirable thing, is wrongful. 3. Wrongful divestment of wardship. This, if it be the offence of the guardian, but not otherwise, coincides with wrongful abdication of guardianship: if it be the offence of a third person, it involves in it divestment of guardianship, which, if the guardianship is, in the eyes of the guardian, a desirable thing, is wrongful. 4. Usurpation of the condition of a ward: an offence not very likely to be committed. This coincides at any rate with wrongful imposition of guardianship; and if the usurper were already under the guardianship of another guardian, it will involve in it wrongful divestment of such guardianship*. 5. Wrongful investment * This effect it may be thought will not necessarily take place: since a ward may have two guardians. One man then is guardian by right: another man comes and makes himself so by usurpation. This may very well be, and yet the former may continue guardian notwithstanding. How then (it maybe asked) is he divested of his guardianship? — The answer is — Certainly not of the whole of it: but, 174 DIVISION OP OFFENCES.
Chap, of Wardship: (the wardship being considered as a ^ — V — ' beneficial thing) this coincides with imposition of guardianship, which, if in the eyes of the pretended guardian the guardianship should be a burthen, will be wrongful. 6. Wrongful abdication of wardship. This coincides with wrongful divestment of guardianship. 7- Wrongful detrectation of wardship. This coincides with wrongful interception of guardianship. 8. Wrongful imposition of wardship. This, if the offender be the pretended guardian, coincides with usurpation of guardianship: if a stranger, it involves in it wrongful imposition of guardianship. As to such of the offences relative to this condition, as concern the consequences of it while subsisting, they are of such a nature that, without any change of denomination, they belong equally to the condition of a guardian, and that of a ward. We may therefore reckon seventeen sorts of offences relative to the condition of a ward: 1. Wrongful non-investment of wardship. 2. Wrongful interception of wardship. 3. Wrongful divestment of wardship. 4. Usurpation of wardship. 5. Wrongful investment of wardship. 6. Wrongful abdication of wardship. 7. Wrongful detrectation of wardship. 8. Wrongful imposition of wardship.
however, of a part of it: of such part as is occupied, if one may so say, that is, of such part of the powers and rights belonging to it as are exercised, by the usurper.
DIVISION OF OFFENCES. 3T5 9. Mismanagement of guardianship. 10. De- Chap. sertion of guardianship. 1 1. Dissipation in pre- * — ^/ — ' judice of wardship. 12. Peculation in prejudice of wardship. 13. Disturbance of guardianship. 14. Breach of duty to guardians. 15. Elopement from guardians. 16. Ward-steahng. 17- Bribery in prejudice of wardship.
XLIX.
We come now to the offences to which the con- offences touching the dition of a parent stands exposed: and first, with condition of regard to those by which the very existence of the condition is affected. On this occasion, in order to see the more clearly into the subject, it will be necessary to distinguish between the natural relationship, and the legal relationship, which is superinduced as it were upon the natural one. The natural one being constituted by a particular ' event, which, either on account of its being already past, or on some other account, is equally out of the power of the law, neither is, nor can be made, the subject of an offence. Is a man your father? It is not any offence of mine that can make you not his son. Is he not your father? It is not any offence of mine that can render him so. But although he does in fact bear that relation to you, I, by an offence of mine, may perhaps so manage matters, that he shall not be thought to bear it: which, with respect to any legal advantages which either he or you could derive from such relationship, will be the same thing as if he did not. In the capacity of a witness, I may cause the judges to believe that he is not your father, and to decree accordingly: or, in the capacity of a judge, I may myself decree him not to be your father. Leaving then the purely natural relationship as an object equally out of the reach of justice and injustice, the legal condition, it is evident, will stand exposed to the same offences, neither more nor less, as every other condition, that is capable of being either beneficial or burthensome, stands exposed to. Next, with regard to the exercise of the functions belonging to this condition, considered as still subsisting. In parentality there must be two persons concerned, the father and the mother. The condition of a parent includes, therefore, two conditions; that of a father, and that of a mother, with respect to such or such a child. Now it is evident, that between these two parties, whatever beneficiary powers, and other rights, as also whatever obligations, are annexed to the condition of a parent, may be shared in any proportions that can be imagined. But if in these several objects of legal creation, each of these two parties have severally a share, and if the interests of all these parties are in any degree provided for, it is evident that each of the parents will stand, with relation to the child, in two several capacities: that of a master, and that of a guardian. The condition of a parent then, in as far as it is the work of law, may be considered as a complex