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 pos- session of the physical? in this way, few transgressions, and few calls for punishment: in the other way, perpetual trans- gressions, and perpetual calls for punishment. Solon is said to have transferred the same idea to the distribution of state Chat. XVI.
152 DIVISION OF OFFENCES.
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.
DIVISION OF OFFENCES. 153 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 su- perintendant 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 super- intendant, 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 na- ture can the obligations be, to which the superin- tendant 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 condi- tions will coincide with the offences relative to the two latter.
XLI.
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 condi- tion 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 wrong- ful non-investment, wrongful interception, usurpa- tion, 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 it- self; 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.
DIVISION OF OFFENCES. 155 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 speak- ing, 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 con- dition, in which the superior is termed a master, while the inferior is termed sometimes indeed a servant, but more par- ticularly 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.
DIVISION OF OFFENCES.
^"^^^- 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 -steal- ing. Where it is the offence of the servant him- self, 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 DIVISION OF OFFENCES. 157 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 invest- ment of mastership. 6. Wrongful abdication of mastership. 7- Wrongful detrectation of master- ship. 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.
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:v- emption. 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) 158 DIVISION OF OFFENCES.
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 charac- terised by the above names will, if specifically con- sidered, admit of very different descriptions. If there be a spot upon the earth so wretched as to exhibit the spectacle of pure and absolutely un- limited 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 mas- tership 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 con- sequences than such as rendered it a mere burthen. But a burthen itself may be a benefit, in compa- DIVISION OF OFFENCES. 1^9 risen 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 bene- ficial 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 be- neficial one, is exposed *. More than this, where the power of the master is limited, and the limi- tations 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 condi- tion 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 con- nected 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.
160 DIVISION OF OFFENCES.
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 be- neficial 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. Accord- ingly, 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 under- stood, it may be of use to shew the sort of cor- respondency there is between the offences which affect the existence of the one, and those which affect the existence of the other. That this cor- respondency cannot but be very intimate is ob- vious 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 usur- pation 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, wrong- ful non-investment of the condition of a servant, if DIVISION OF OFFENCES.
it be the offence of one who should have been the CuaJ". master, coincides with. wrongful detrectation of ^ — sr- mastership: 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. Wrong- ful interception of the condition of a servant, if it be the offence of him who should have been master, coincides with wrongful detrectation of master- ship: 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. Wrong- ful 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, pre- viously to the usurpation, was in a state of servi- tude 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 162 DIVISION OF OFFENCES.
Chap, abdication of servantship coincides with wrongful ' — V — ' divestment of mastership. 7. Wrongful detrecta- tion of servantship, with wrongful non-investment of mastership. 8. Wrongful imposition of servant- ship, 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 impo- sition of mastership, which, if in the eyes of the pretended master the mastership should be a burthen, will be wrongful. As to abuse of mas- tership, disturbance of mastership, breach of duty in servants, elopement of servants, and servant- stealing, these are offences which, without any change of denomination, bear equal relation to both conditions. And thus we may reckon thir- teen sorts of offences to which the condition of a servant stands exposed: viz. 1. Wrongful non- investment of servantship. Q. Wrongful inter- ception of servantship. 3. Wrongful divestment of servantship. 4. Usurpation of servantship. 5. Wrongful investment of servantship. 6. Wrong- ful abdication of servantship. 7. Wrongful de- trectation of servantship. 8. Wrongful imposi- tion 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 condi- s 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 ne- cessary should concur: knowledge, inclination, and physical power. Now as there is no man who is so sure of being inclined, on all occasions, to pro- mote 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 pur- pose. 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.
164 DIVISION OF OFFENCES.
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 inclina- tion 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.
DIVISION OF OFFENCES.
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.
166 DIVISION OF OFFENCES.
Chap- which, such as it is, whatever persons are con- * — V — ' cerned may be certain of agreeing: the cir- cumstance 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 determina- tion 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 ques- tion 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