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 DIVISION OF OFFENCES.
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 be- longing 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 dis- sertation. 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 him- self, 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 cal- culated 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 hap- DIVISION OF OFFENCES.
piness; 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 main- tain 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 parti- cular business of private ethics: to instruct in- dividuals in what manner to govern the conduct of those whose happiness, during non-age, is com- mitted 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 com- mitted 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 in- deed 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 in- finite diversity of civil conditions which a man See ch. xvii. [Limits] § i.
DIVISION OF OFFENCES.
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.
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 spe- cial 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 con- dition, 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 ques- tion, 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 pro- cured 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 him- self, had he been capable of governing his own conduct. Now, in order to procure this happi- ness, 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 pos- sess 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 pecula- DIVISION OF OFFENCES. 171 tion*. 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 guardian- ship that corresponds to abuse of trust: I mean in the sense to which the last-mentioned denomina- tion 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 pro- perty 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.
172 DIVISION OF OFFENCES.
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. Usur- pation of guardianship. 5. Wrongful investment of guardianship. 6. Wrongful abdication of guar- dianship. 7- Detrectation of guardianship. 8. Wrongful imposition of guardianship. Q. Mis- management 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 guar- dians. 16. War4-stealing. 17. Bribery in pre- judice of wardship.
XLVIII.
XLVIII.
OfFences Ncxt, with regard to offences to which the con- condition 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 guardian- ship, which, provided the guardianship is, in the eyes of him who should have been guardian, a desirable thing, is wrongful. 3. Wrongful divest- ment 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 divest- ment 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 com- mitted. 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 pre- tended guardian the guardianship should be a burthen, will be wrongful. 6. Wrongful abdica- tion of wardship. This coincides with wrongful divestment of guardianship. 7- Wrongful detrec- tation of wardship. This coincides with wrong- ful interception of guardianship. 8. Wrongful imposition of wardship. This, if the offender be the pretended guardian, coincides with usur- pation 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 con- dition 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 inter- ception of wardship. 3. Wrongful divestment of wardship. 4. Usurpation of wardship. 5. Wrong- ful investment of wardship. 6. Wrongful abdica- tion 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- Bri- bery 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 rela- tionship, 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 al- though 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 relation- ship, will be the same thing as if he did not. In 176 DIVISION OF OFFENCES.
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 ex- posed 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 what- ever 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 DIVISION OF OFFENCES. 177 condition, compounded of that of a guardian, and Chap. that of a master. To the parent then, in quality ' — v — ' of guardian, results a set of duties, involving, as necessary to the discharge of them, certain pow- ers: to the child, in the character of a ward, a set of rights corresponding to the parent's duties, and a set of duties corresponding to his powers. To the parent again, in quality of master, a set of beneficiary powers, without any other necessary limitation (so long as they last) than what is annexed to them by the duties incumbent on him in quality of a guardian: to the child, in the cha- racter of a servant, a set of duties corresponding to the parent's beneficiary powers, and without any other necessary limitation (so long as they last) than what is annexed to them by the rights which belong to the child in his capacity of ward. The condition of a parent will therefore be exposed to all the offences to which either that of a guardian or that of a master are exposed: and, as each of the parents will partake, more or less, of both those characters, the offences to which the two conditions are exposed may be nominally, as they will be substantially, the same. Taking them then all together, the offences to which the condition of a parent is exposed will stand as follows: 1. Wrongful non-investment of paren- tality *. 2. Wrongful interception of parentality.
* At first view it may seem a solecism to speak of the con- dition of parentality as one which a man can have need to VOL. II. N 178 DIVISION OF OFFENCES.
3. Wrongful divestment of parentality. 4. Usur- pation of parentality. 5. Wrongful investment of parentality. 6. Wrongful abdication of paren- tality. 7- Wrongful detrectation of parentality. 8. Wrongful imposition of parentality. 9- Mis- management of parental guardianship. 10. De- sertion of parental guardianship. ] 1. Dissipation in prejudice of filial wardship. ] 2. Peculation in prejudice of filial wardship. 13. Abuse of paren- tal powers. 14. Disturbance of parental guardi- anship. 15. Breach of duty to parents. l6. Elope- ment from parents. 17. Child-stealing. 18. Bri- bery in prejudice of filial wardship.
L.
Offences Ncxt with regard to the offences to which the toucliing the filial condition.
be invested with. The reason is, that it is not common for any ceremony to be required as necessary to a man's being deemed in law the father of such or such a child. But the institution of such a ceremony, whether advisable or not, is at least perfectly conceivable. Nor are there wanting cases in which it has actually been exemplified. By an article in the Roman law, adopted by many modern nations, an illegi- timate child is rendered legilimate by the subsequent mar- riage of his parents. If then a priest, or other person whose office it was, were to refuse to join a man and woman in matrimony, such refusal, besides beitig a wrongful non-in- vestment with respect to the two matrimonial conditions, would be a wrongful non-investment of parentality and filiation, to the prejudice of any children who should have been legitimated.
DIVISION OF OFFENCES. 179 Jilial condition *, the condition of a son or daugh- ter stands exposed. The principles to be pursued in the investigation of offences of this description, have already been sufficiently developed. It will be sufficient, therefore, to enumerate them with- out further discussion. The only peculiarities by which offences relative to the condition in question stand distinguished from the offences relative to all the preceding conditions, depend upon this one circumstance; viz. that it is certain every one must have had a father and a mother: at the same time that it is not certain that every one must have had a master, a servant, a guardian, or a ward. It will be observed all along, that where a person, from whom, if alive, the benefit would be taken, or on whom the burthen would be imposed, be dead, so much of the mischief is extinct along with the object of the offence. There still, how- * In English we have no word that will serve to express with propriety the person who bears the relation opposed to that of parent. The word child is ambiguous, being em- ployed in another sense, perhaps more frequently than in this: more frequently in opposition to a person of full age, an adult, than in correlation to a parent. For the condition itself we have no other word than Jiliation: an ill-contrived term, not analogous to paternity and maternity: the proper term would have been Jiliality: the word filiation is as fre- quently, perhaps, and more consistently, put for the act of establishing a person in the possession of the condition of filiality.
DIVISION OF OFFENCES.
Chi p. ever, remains so much of the mischief as depends — ■^ — ' upon the advantage or disadvantage which might accrue to persons related, or supposed to be re- lated, in the several remoter degrees, to him in question. The catalogue then of these offences stand as follows: ]. Wrongful non-investment of filiation. This, if it be the offence of him or her who should have been recognized as the parent, coincides with wrongful detrectation of parenta- lity: if it be the offence of a third person, it in- volves in it non-investment of parentality, which, provided the parentality is, in the eyes of him or her who should have been recognized as the pa- rent, a desirable thing, is wrongful. 2. Wrongful interception of filiation. This, if it be the offence of him or her who should have been recognized as the parent, coincides with wrongful detrecta- tion of parentality: if it be the offence of a third person, it involves in it interception of parentality, which, provided the parentality is, in the eyes of him or her who should have been recognized as parent, a desirable thing, is wrongful. 3. Wrong- ful divestment of filiation. This, if it be the offence of him or her who should be recognized as parent, coincides with wrongful abdication of parentality: if it be the offence of a third person, it involves in it divestment of parentality: to wit, of paternity, or of maternity, or of both: which, if the parentality is, in the eyes of him or her who should be recognised as parent, a desirable thing.
DIVISION OF OFFENCES.