are respectively wrongful. 4. Usurpation of filiation. This coincides with wrongful imposition of parentality; to wit, either of paternity, or of maternity, or of both: and necessarily involves in it divestment of parentality, which, if the paren- tality thus divested were, in the eyes of him or her who are thus divested of it, a desirable thing, is wrongful. 5. Wrongful investment of filiation: (the filiation being considered as a beneficial thing.) This coincides with imposition of paren- tality, which, if in the eyes of the pretended father or mother the parentality should be an undesirable thing, will be wrongful. 6. Wrongful abdication of filiation. This necessarily coincides with wrong- ful divestment of parentality; it also is apt to in- volve in it wrongful imposition of parentality; though not necessarily either to the advantage or to the prejudice of any certain person. For if a man, supposed at first to be your son, appears afterwards not to be your's, it is certain indeed that he is the son of some other man, but it may not appear who that other man is. 7- Wrongful detrectation of filiation. This coincides with wrongful non-investment or wrongful interception of parentality. 8. Wrongful imposition of filia- tion. This, if it be the offence of the pretended parent, coincides necessarily with usurpation of parentality: if it be the offence of a third person, it necessarily involves imposition of parentality; as also divestment of parentality: either or both 182 DIVISION OF OFFENCES.
of which, according to the circumstance above- mentioned, may or may not be wrongful. 9- Mis- management of parental guardianship. 10. De- sertion of parental guardianship. 1 1. Dissipation in prejudice of filial wardship. 12. Peculation in prejudice of filial wardship. 1 3. Abuse of paren- tal power. 14. Disturbance of parental guardi- anship. 15. Breach of duty to parents. 16' Elopement from parents. 17. Child-stealing. 18. Bribery in prejudice of parental guardianship.
LI.
Condition of We shall now be able to apply ourselves with a husband.
— Poweis. some advantage to the examination of the several rights, that ofFeuces to which the marital condition, or con- nexed to it. ditiou of a husbaud, stands exposed. A husband is a man, between whom and a certain woman, who in this case is called his wife, there subsists a legal obligation for the purpose of their living together, and in particular for the purpose of a sexual intercourse to be carried on between them. This obligation will naturally be considered in four points of view: 1. In respect of its com- mencement. 2. In respect of the placing it. 3. In respect of the nature of it. 4. In respect of its duration. First then, it is evident, that in point of possibility, one method of commencement is as conceivable as another: the time of its commencement might have been marked by one sort of event (by one sort of signal, as it may here be called) as well as by another. But in DIVISION OF OFFENCES.
practice the signal has usually been, as in point ^^^'t^- of utility it ought constantly to be, a contract ' — ^ — entered into by the parties: that is, a set of signs, pitched upon by the law, as expressive of their viutual consent, to take upon them this condition. Second, and third, with regard to the placing of the obligations which are the result of the con- tract, it is evident that they must rest solely on one side, or mutually on both. On the first sup- position, the condition is not to be distinguished from pure slavery. In this case, either the wife must be the slave of the husband, or the husband of the wife. The first of these suppositions has perhaps never been exemplified; the opposing influence of physical causes being too universal to have ever been surmounted: the latter seems to have been exemplified but too often; perhaps among the first Romans; at any rate, in many barbarous nations. Thirdly, With regard to the nature of the obligations. If they are not suf- fered to rest all on one side, certain rights are thereby given to the other. There must, there- fore, be rights on both sides. Now, where there are mutual rights possessed by two persons, as against each other, either there are powers an- nexed to those rights, or not. But the persons in question are, by the supposition, to live together: in which case we have shewn *, that it is not only expedient, but in a manner necessary, that on * Supra.
184 DIVISION OF OFFENCES.
Chap, one slde there should be powers. Now it is only ^ — V — ' on one side that powers can be: for suppose them on both sides, and they destroy one another. The question is then, In which of the parties these powers shall be lodged? we have shewn, that on the principle of utility they ought to be lodged in the husband. The powers then which subsist being lodged in the husband, the next question is. Shall the interest of one party only, or of both, be consulted in the exercise of them? it is evident, that on the principle of utility the inte- rests of both ought alike to be consulted: since in two persons, taken together, more happiness is producible than in one. This being the case, it is manifest, that the legal relation which the husband will bear to the wife will be a complex one: compounded of that of master and that of guardian.
LIT.
Offences The offcuccs thcu to which the condition of a touching the condition of husband will be exposed, will be the sum of those to which the two conditions oi master and guar- dian are exposed. Thus far the condition of a husband, with respect to the general outlines of it, stands upon the same footing as that of a parent. But there are certain reciprocal services, which being the main subject of the matrimonial contract, constitute the essence of the two matri- monial relations, and which neither a master nor guardian, as such, nor a parent, at any rate, have XVI.
DIVISION OF OFFENCES. 185 usually been permitted to receive. These must Chai of course have been distinguished from the indis- criminate train of services at large which the husband in his character of master is impowered to exact, and of those which in his character of guardian he is bound to render. Being thus distinguished, the offences relative to the two conditions have, in many instances, in as far as they have reference to these peculiar services, acquired particular denominations. In the first place, with regard to the contract, from the cele- bration of which the legal condition dates its existence. It is obvious that in point of possi- bility, this contract might, on the part of either sex, subsist with respect to several persons of the other sex at the same time: the husband might have any number of wives: the wife might have any number of husbands: the husband might enter into the contract with a number of wives at the same time: or, if with only one at a time, he might reserve to himself a right of engaging in a similar contract with any number, or with only such or such a number of other women after- wards, during the continuance of each former contract. This latter accordingly is the footing upon which, as is well known, marriage is and has been established in many extensive countries: particularly in all those which profess the Maho- metan religion. In point of possibihty, it is evident that the like liberty might be reserved on 186 DIVISION OF OFFENCES.
Cr-^i"- the part of the wife: though in point of practice ' — ^/ — ' no examples of such an arrangement seem ever to have occurred. Which of all these arrange- ments is, in point of utility, the most expedient, is a question v^^hich would require too much dis- cussion to answer in the course of an analytical process like the present, and which belongs indeed to the civil branch of legislation, rather than to the penal*. In Christian countries, the solemni- zation of any such contract is made to exclude the solemnization of any subsequent one during the continuance of a former: and the solemnization of any such subsequent contract is accordingly treated as an offence, under the name of Polygamy. Polygamy then is at any rate, on the part of the man, a particular modification of that offence which may be stiled usurpation of the condition of a husband. As to its other effects, they will be different, according as it was the man only, or the woman only, or both, that were in a state of matrimony at the time of the commission of the offence. If the man only, then his offence in- volves in it pro tanto that of wrongful divestment of the condition of a wife, in prejudice of his prior wifef. If the woman only, then it involves * See ch. xvii. [Limits] § iv.
t In this case also, if the woman knew not of the prior marriage, it is besides a species of seduction; and, in as far as it affects her, belongs to another division of the offences of this class. Vide supra, xxxvi.
DIVISION OF OFFENCES. 187 in it pro tanto that of wrongful divestment of the ^hap. condition of a husband, in prejudice of her prior ' — v — ' husband. If both were ah"eady married, it of course involves both the wrongful divestments which have just been mentioned. And on the other hand also, the converse of all this may be observed with regard to polygamy on the part of the woman. Second, As the engaging not to enter into any subsequent engagement of the like kind during the continuance of the first, is one of the conditions on which the law lends its sanction to the first; so another is, the inserting as one of the articles of this engagement, an undertaking not to render to, or accept from, any other person the services which form the characteristic object of it: the rendering or acceptance of any such services is accordingly treated as an offence, under the name of adultery: under which name is also comprised the offence of the stranger, who, in the commission of the above offence, is the necessary accomplice. Third, Disturbing either of the parties to this engagement, in the possession of these characteristic services, may, in like manner, be distinguished fi'om the offence of disturbing them in the enjoyment of the miscellaneous ad- vantages derivable from the same condition; and on whichever side the blame rests, whether that of the party, or that of a third person, may be termed wrongful withholding of connubial ser^vices. And thus we have one-and-twenty sorts of of- 188 DIVISION OF OFFENCES.
Chap, fenccs to whicli, as the law stands at present in ' — V — ' Christian countries, the condition of a hnsband stands exposed: viz. 1. Wrongful non-investment of the condition of a husband. 2. Wrongful interception of the condition of a husband. 3. Wrongful divestment of the condition of a husband. 4. Usurpation of the condition of a husband. 5. Polygamy. 6. Wrongful invest- ment of the condition of a husband. 7- Wrong- ful abdication of the condition of a husband. 8. Wrongful detrectation of the condition of a husband. 9. Wrongful imposition of the condi- tion of a husband. 10. Mismanagement of ma- rital guardianship. 1 1. Desertion of marital guardianship. 12. Dissipation in prejudice of matrimonial wardship. 13. Peculation in preju- dice of matrimonial wardship. 14. Abuse of marital power. 1 5. Disturbance of marital guar- dianship. l6. Wrongful withholding of connu- bial services. 17. Adultery. 18. Breach of duty to husbands. 19- Elopement from husbands. 20. Wife-stealing. 21. Bribery in prejudice of marital guardianship *.
* I. Semi-public offences. — Falsehoods contesting, or of- fences against justice destroying, the validity of the mar- riages of people of certain descriptions: such as Jews, Quakers, Hugonots, &c. &c.
II. Self-regarding oft'ences. — Improvident marriage on the part of minors.
DIVISION OF OFFENCES. 189 LIII. Chap.
XVI.
Next with regard to the offences to which the >--v — ' *-' Uiiences condition of a wife stands exposed. From the touching the -"• condition of patterns that have been exhibited already, the a ^'fe, coincidences and associations that take place be- tween the offences that concern the existence of this condition and those which concern the exis- tence of the condition of a husband, may easily enough be apprehended without farther repeti- tions. The catalogue of those now under con- sideration will be precisely the same in every article as the catalogue last exhibited.
LIV.
LIV.
Thus much for the several sorts of offences relative to the several sorts of domestic conditions: those which are constituted by such natural rela- tions as are contiguous being included. There remain those which are uncontiguous: of which, after so much as has been said of the others, it will naturally be expected that some notice should be taken. These, however, do not afford any of that matter which is necessary to constitute a condition. In point of fact, no power seems ever to be annexed to any of them. A grand- father, perhaps, may be called by the law to take upon him the guardianship of his orphan grand- son: but then the power he has belongs to him not as grandfather, but as guardian. In point of possibility, indeed, power might be annexed to these relations, just as it might to any other.
190 DIVISION OF OFFENCES.
Chap. But still HO ncw sort of domestic condition would ^^ — N/ — ' result from it: since it has been shewn that there can be no others, that, being constituted by power, shall be distinct from those which have been already mentioned. Such as they are, how- ever, they have this in common with the before- mentioned relations, that they are capable of importing either benefit or burthen: they there- fore stand exposed to the several ofiFences whereby those or any other relations are liable to be affected in point of existence. It might be expected, therefore, that in virtue of these offences, they should be added to the list of the relations which are liable to be objects of delinquency. But the fact is, that they already stand included in it: and although not expressly named, yet as effectually as if they were. On the one hand, it is only by affecting such or such a contiguous relation that any offence, affecting uncontiguous relations can take place. On the other hand, neither can any offence, affecting the existence of the contiguous relations, be committed, without affecting the existence of an indefinite multitude of such as are uncontiguous. A false witness comes, and causes it to be believed that you are the son of a woman, who, in truth, is not your mother. What follows? An endless tribe of other false persua- sions— that you are the grandson of the father and of the mother of this supposed mother: that you are the son of some husband of her's, or, at DIVISION OF OFFENCES. 191 least, of some man with whom she has cohabited: Chap. the grandson of his father and his mother; and "■ — v — ' so on: the brother of their other children, if they have any: the brother-in-law of the husbands and wives of those children, if married: the uncle of the children of those children: and so on. — On the other hand, that you are not the son of your real mother, nor of your real father: that you are not the grandson of either of your real grand- fathers or grandmothers; and so on without end: all which persuasions result from, and are included in, the one original false persuasion of your being the son of this your pretended mother.
It should seem, therefore, at first sight, that none of the offences against these uncontiguous relations could ever come expressly into question: for by the same rule that one ought, so it might seem ought a thousand others: the offences against the uncontiguous being merged as it were in those which affect the contiguous gelations. So far, however, is this from being the case, that in speaking of an offence of this stamp, it is not uncommon to hear a great deal said of this or that uncontiguous relationship which it affects, at the same time that no notice at all shall be taken of any of those which are contiguous. How happens this? Because, to the uncontiguous rela- tion are annexed perhaps certain remarkable ad- vantages or disadvantages, while to all the inter- mediate relations none shall be annexed which are 192 DIVISION OF OFFENCES.
Chap, in comparison worth noticing. Suppose Antony ^ — V — ' or Lepidus to have contested the relationship of Octavius (afterwards Augustus) to Caius Juhus Caesar. How could it have been done? It could only have been by contesting, either Octavius's being the son of Atia, or Atia's being the daughter of Julia, or Julia's being the daughter of Lucius Julius Caesar, or Lucius Julius Csesar's being the father of Caius. But to have been the son of Atia, or the grandson of Julia, or the great grandson of Lucius Julius Caesar, was, in com- parison, of small importance. Those intervening relationships were, comparatively speaking, of no other use to him than in virtue of their being so many necessary links in the genealogical chain which connected him with the sovereign of the empire.
As to the advantages and disadvantages which may happen to be annexed to any of those uncon- tiguous relationships, we have seen already that no powers over the correlative person, nor any corresponding obligations, are of the number. Of what nature then can they be? They are, in truth, no other than what are the result either of local and accidental institutions, or of some spon- taneous bias that has been taken by the moral sanction. It would, therefore, be to little purpose to attempt tracing them out a priori by any ex- haustive process: all that can be done is, to pick up and lay together some of the principal articles DIVISION OF OFFENCES.
in each catalogue by way of specimen. The ad- ^"*'* vantages which a given relationship is apt to ^ — v — impart, seem to be referable chiefly to the follow- ing heads: J. Chance of succession to the pro- perty, or a part of the property, of the correlative person. 2. Chance of pecuniary support, to be yielded by the correlative person, either by ap- pointment of law, or by spontaneous donation. 3. Accession of legal rank; including any legal privileges which may happen to be annexed to it: such as capacity of holding such and such bene- ficial offices; exemption from such and such bur- thensome obligations; for instance, paying taxes, serving burthensome offices, &c. &c. 4. Accession of rank by courtesy; including the sort of repu- tation which is customarily and spontaneously annexed to distinguished birth and family alliance: whereon may depend the chance of advancement in the way of marriage, or in a thousand other ways less obvious. The disadvantages which a given relation is liable to impart, seem to be re- ferable chiefly to the following heads: 1. Chance of being obliged, either by law, or by force of the moral sanction, to yield pecuniary support to the correlative party. 2. Loss of legal rank: in- cluding the legal disabiUties, as well as the burthensome obligations, which the law is apt to annex, sometimes with injustice enough, to the lower stations. 3. Loss of rank by courtesy: VOL. II. o 194 DIVISION OF OFFENCES.
including the loss of the advantages annexed by custom to such rank. 4. Incapacity of contract- ing matrimony with the correlative person, where the supposed consanguinity or affinity lies within the prohibited degrees*.
* In pursuance of the plan adopted with relation to semi- public and self-regarding offences, it may here be proper to exhibit such a catalogue as the nature of the design will admit, of the several genera or inferior divisions of public offences.
I, Offences against the external security of the state. 1, Treason (in favour of foreign enemies.) It may be positive or negative (negative consisting, for example, in the not opposing the commission of positive.) 2, Espionage (in favour of foreign rivals not yet enemies.) 3. Injuries to foreigners at large (including piracy.) 4. Injuries to privi- leged foreigners such as ambassadors.)
II. Offences against justice. 1. Offences against judi- cial trust: viz. Wrongful non-investment of judicial trust, wrongful interception of judicial trust, wrongful divestment of judicial trust, usurpation of judicial trust, wrongful invest- ment of judicial trust, wrongful abdication of judicial trust, wrongful detrectation of judicial trust, wrongful imposition of judicial trust, breach of judicial trust, abuse of judicial trust, disturbance of judicial trust, and bribery in prejudice of judicial trust.
Breach and abuse of judicial trust may be either inten- tional or unintentional. Intentional is culpable at any rate. Unintentional will proceed either from inadvertence, or from mis-supposal: if the inadvertence be coupled with heed- lessness, or the missupposal with rashness, it is culpable: if not, blameless. For the particular acts by which the exercise of judicial trust may be disturbed see B. i. tit. [offences DIVISION OF OFFENCES. 195 LV.
We come now to civil conditions: these, it may „.., -,.
•' Liv:l condiwell be imagined, may be infinitely various: as *'°"*- against justice.] They are too multifarious, and too ill pro- vided with names, to be examined here.
If a man fails in fulfilling the duties of this trust, and thereby comes either to break or to abuse it, it must be through some deficiency in the three requisite and only re- quisite endowments, of knowledge, inclination, and power. [See supra, xxvii,] A deficiency in any of those points, if any person be in fault, may proceed either from his own fault, or from the fault of those who should act with or under him. If persons who are in fault are persons invested with judical trust, the oflfence comes under the head of breach or abuse of trust: if other persons, under that of disturbance of trust.
The ill effects of any breach, abuse, or disturbance of judicial trust, will consist in the production of some article or articles in the list of the mischiefs which it ought to be the original purpose of judicial procedure to remedy or avert, and of those which it ought to be the incidental pur- pose of it to avoid producing. These are either primary (that is immediate) or remote: remote are of the 2d, 3d, or 4th order, and so on. The primary are those which import actual pain to persons assignable, and are therefore mis- chievous in themselves: the secondary are mischievous on account of the tendency they have to produce some article or articles in the catalogue of those of the first order; and are therefore mischievous in their effects. Those of the 3d order are mischievous only on account of the connection they have in the way of productive tendency, as before, with those of the 2d order: and so on.
Primary inconveniences, which it ought to be the object of procedure to provide against, are, 1, The continuance of DIVISION OF OFFENCES.
Chap, various as the acts which a man may be either com- — V — ' manded or allowed, whether for his own benefit, or the individual offence itself, and thereby the encrease as well as continuance of the mischief of it. 2. The continuance of the whole mischief of the individual offence. 3. The continuance of a part of the mischief of the individual offence. 4. Total want of amends on the part of persons injured by the offence. 5. Partial want of amends on the part of persons injured by the offence. 6. Superfluous punishment of delinquents. 7- Unjust punishment of per- sons accused. 8. Unnecessary labour, expence, or other suffering or danger, on the part of superior judicial officers. 9. Unnecessary labour, espence, or other suffering or danger, on the part of ministerial or other subordinate judicial officers. 10. Unnecessary labour, expence, or other suffering or danger, on the part of persons whose co-operation is requisite pro re natd, in order to make up the necessary com- plement of knowledge and power on the part of judicial officers, who are such by profession. 11. Unnecessary la- bour, expence, or other suffering or danger, on the part of persons at large, coming under the sphere of the operations of the persons above-mentioned.