of that power as depends upon the intrinsic phy- sical condition of your person, to be subject to that power; this cessation is either owing to change in the intrinsic condition of the thing itself, or in its exterior situation with respect to you, that is, to its being situated out of your reach. In the former case, the nature of the change is either such as to put it out of your power to make any use of it at all, in which case the thing is said to be destroyed, and the offence whereby it is so treated may be termed wrongful destruction: or such only as to render the uses it is capable of being put to of less value than before, in which case it is said to be damaged, or to have sustained damage, and the offence may be termed wrongful endamagement. Moreover, in as far as the value which a thing is of to you is considered as being liable to be in some degree impaired, by any act on the part of any other person exercised upon that thing, al. though on a given occasion no perceptible damage should ensue, the exercise of any such act is com- monly treated on the footing of an offence, which may be termed wrongful using or occupation.
If the cause of the thing's failing in its capa- city of being of use to you, lies in the exterior situation of it with relation to you, the offence may be stiled xvrongful detainme?it*. Wrongful * In the English law, detinue and detainer: detinue ap- plied chiefly to moveables; detainer, to immoveables. Under 136 DIVISION OF OFFENCES.
detainment, or detention, during any given period of time, may either be accompanied with the in- tention of detaining the thing for ever, (that is for an indifferent time) or not: if it be, and if it be accompanied at the same time with the inten- tion of not being amenable to law for what is done, it seems to answer to the idea commonly annexed to the word embezzlement, an offence which is commonly accompanied with breach of trust*. In the case of wrongful occupation, the physical faculty of occupying may have been obtained with detinue and detainer cases are also comprised, in which the offence consists in forbearing to transfer the legal possession of the thing • such cases may be considered as coming under the head of wrongful non-investment. The distinction be- tween mere physical possession and legal possession, where the latter is short-lived and defeasible, seems scarcely hitherto to have been attended to. In a multitude of in- stances they are confounded under the same expressions. The cause is, that probably under all laws, and frequently for very good reasons, the legal possession, with whatever certainty defeasible upon the event of a trial, is, down to the time of that event, in many cases annexed to the appearance of the physical.
* In attempting to exhibit the import belonging to this and other names of offences in common use, I must be un- derstood to speak all along with the utmost diffidence. The truth is, the import given to them is commonly neither de- terminate nor uniform: so that in the nature of things, no definition that can be given of them by a private person can be altogether an exact one. To fix the sense of them be- longs only to the legislator.
DIVISION OF OFFENCES. 137 or without the assistance or consent of the pro- prietor, or other person appearing to have a right to afford such assistance or consent. If without such assistance or consent, and the occupation be accompanied with the intention of detaining the thing for ever, together with the intention of not being amenable to law for what is done, the offence seems to answer to the idea com- monly annexed to the word theft or stealing. If in the same circumstances a force M put upon the body of any person who uses, or appears to be disposed to use, any endeavours to prevent the act, this seems to be one of the cases in which the offence is generally understood to come under the name of robbery.
If the physical faculty in question was obtained with the assistance or consent of a proprietor, or other person above spoken of, and still the occu- pation of the thing is an offence, it may have been either because the assistance or consent was not fairly, or because it was not freely obtained. If not fairly obtained, it was obtained by falsehood, which, if advised, is in such a case termed fraud: and the offence, if accompanied with the intention of not being amenable to law, may be termed fraudulent obtainment or defraudmcnt *. If not * The remaining cases come under the head of usurpation, or wrongful investment of property. The distinction seems hardly hitherto to have been attended to: it turns like an- *38 DIVISION OF OFFENCES.
^**- freely obtained, it was obtained by force: to wit, ' — V — ' either by a force put upon tlie body, which has been already mentioned, or by a force put upon the mind. If by a force put upon the mind, or in other words, by the application of coercive motives *, it must be by producing the apprehen- sion of some evil: which evil, if the act is an offence, must be some evil to which on the occasion in question the one person has no right to expose the other. This is one case, in which, if the of- fence be accompanied with the intention of detain- ing the thing for ever, whether it be or be not accompanied with the intention of not being amenable to law, it seems to agree with the idea of what is commonly meant by extortmi. Now the part a man takes in exposing another to the evil in question, must be either a positive or a negative part. In the former case, again, the evil must either be present or distant. In the case then where the assistance or consent is obtained by a force put upon the body, or where, if by a force put upon the mind, the part taken in the exposing a man to the apprehension of the evil is positive, the evil present, and the object of it his person, and if at any rate the extortion, thus applied, be accompanied with the intention of not being amenother, mentioned above, upon the distinction between legal possession and physical. The same observation may be ap- phed to the case of extortion hereafter following. * Vide supra, xxvii.
DIVISION OF OFFENCES. 139 able to law, it seems to agree with the remaining case of what goes under the name of robbery.
As to dissipation in breach of trust, this, when productive of a pecuniary profit to the trustee, seems to be one species of what is commonly meant by peculation. Another, and the only re- maining one, seems to consist in acts of occupation exercised by the trustee upon the things which are the objects of the fiduciary property, for his own benefit, and to the damage of the beneficiary. As to robbery, tliis offence, by the manner in which the assistance or consent is obtained, be- comes an offence against property and person at the same time. Dissipation in breach of trust, and peculation, may perhaps be more commo- diously treated of under the head of offences against trust *. After these exceptions, we have thirteen genera or principal kinds of offences against property, which, when ranged in the order most commodious for examination, may stand as follows, viz. 1. Wrongful non-investment of pro- perty. 2. Wrongful interception of property. 3. Wrongful divestment of property. 4. Usurpation * Usury, which, if it must be an offence, is an offence committed with consent, that is, with the consent of the party supposed to be injured, cannot merit a place in the catalogue of offences, unless the consent were either unfairly obtained or unfreely • in the first case, it coincides with de- fraudment; in the other, with extortion.
HO DIVISION OF OFFENCES.
Chap, of property. 5. Wrongful investment of property.
^ — V — ' 6. Wrongful withholding of services. 7- Wrong- ful destruction or endamagement. 8. Wrongful occupation. 9' Wrongful detainment. 10. Em- bezzlement. 11. Theft. 12. Defraudment. 13. Extortion *.
We proceed now to consider offences which are complex in their effects. Regularly, indeed, we should come to offences against condition; but it will be more convenient to speak first of offences by which a man's interest is affected in two of the preceeding points at once.
XXXVI.
Offences First then, with regard to offences which affect son and re- pcrsou and reputation together. When any man, pu a ion. ^^ ^ mode of treatment which affects the person.
* I. Semi-public offences. 1. Wrongful divestment, interception, usurpation, &c. of valuables, which are the pro- perty of a corporate body; or which are in the indiscriminate occupation of a neighbourhood; such as parish churches, altars, relicks, and other articles appropriated to the pur- poses of religion: or things which are in the indiscrimi- nate occupation of the public at large; such as mile-stones, market-houses, exchanges, public gardens, and cathedrals. 2. Setting on foot what have been called bubbles, or fraudu- lent partnership, or gaming adventures; propagating false news, to raise or sink the value of stocks, or of any other denomination of property.
II. Self-regarding offences. 1. Idleness. 2. Ga- ming. 3. Other species of prodigality.
DIVISION OF OFFENCES. 141 injures the reputation of another, his end and Chap. purpose must have been either his own immediate ' — v — ' pleasure, or that sort of reflected pleasure, which in certain circumstances may be reaped from the suffering of another. Now the only immediate pleasure worth regarding-, which any one can reap fi'om the person of another, and which at the same time is capable of affecting the reputation of the latter, is the pleasure of the sexual appetite *. This pleasure, then, if reaped at all, must have been reaped either against the consent of the party, or with consent. If with consent, the con- sent must have been obtained either freely and fairly both, or freely but not fairly, or else not even freely; in which case the fairness is out of the question. If the consent be altogether want- ing, the oflPence is called rape: if not fairly ob- tained, seduction simply: if not freely, it may be called forcible seduction. In any case, either the offence has gone the length of consummation, or has stopt short of that period; if it has gone that length, it takes one or other of the names just mentioned: if not, it may be included alike in all cases under the denomination of a simple lascivious injury. Lastly, to take the case where a man injuring you in your reputation, by proceedings that regard your person, does it for the sake of that See ch. v. [Pleasures and Pains.]
142 DIVISION OF OFFENCES.
^yj' sort of pleasure which will sometimes result from *■ "^ ' the contemplation of another's pain. Under these circumstances either the offence has actually gone the length of a corporal injury, or it has rested in menacement: in the first case it may be stiled a corporal insult; in the other, it may come under the name of insulting menacement. And thus we have six genera, or kinds of offences, against person and reputation together; which, when ranged in the order most commodious for consi- deration, will stand thus: 1. Corporal insults. 2. Insulting menacement. 3. Seduction. 4. Rape. 5. Forcible seduction. 6. Simple lascivious injuries *.
XXXVII.
Offences Sccoudly, with respect to those which afiPect against per-" son and pcrsoH Eud property together. That a force put upon the person of a man may be among the means by which the title to property may be un- lawfully taken away or acquired, has been already stated f. A force of this sort then is a circum- stance which may accompany the offences of wrongful interception, wrongful divestment, usur- pation, and wrongful investment. But in these cases the intervention of this circumstance does * I. Semi-public offences — none, II. Self-regarding offences. 1. Sacrifice of virgi- nity. 2, Indecencies not public. t Supra.
DIVISION OF OFFENCES. 143 not happen to have given any new denomination Chap. to the offence *. In all or any of these cases, "" — v — ' however, by prefixing the epithet /orciZ'/e, we may have so many names of offences, which may either be considered as constituting so many species of the genera belonging to the division of offences against property, or as so many genera belonging to the division now before us. Among the offen- ces that concern the enjoyment of the thing, the case is the same with wrongful destruction and wrongful endamagement; as also with wrongful occupation and wrongful detainment. As to the offence of wrongful occupation, it is only in the case where the thing occupied belongs to the class of immoveables, that, when accompanied by the kind of force in question, has obtained a par- ticular name which is in common use: in this case it is called /orci^/e entry: forcible detainment, as applied also to immoveables, but only to im- moveables, has obtained, among lawyers at least, the name oi forcible detainer f. And thus we may * In the technical language of the English law, property so acquired is said to be acquired by duress.
t Applied to moveables, the circumstance of force has never, at least by the technical part of the language, been taljen into account: no such combination of terms as forcible occupation is in current use. The word detinue is applied to moveables only: and (in the language of the law) the word forcible has never been combined with it. The word applied 144 DIVISION OF OFFENCES.
distinguish 1 0 genera, or kinds of offences, against person and property together, which, omitting for conciseness sake the epithet wrongful, will stand thus: 1. Forcible interception of property. 2. Forcible divestment of property. 3. Forcible usurpation. 4. Forcible investment. 5. Forcible destruction or endamagement. 6. Forcible occu- pation of moveables. 7. Forcible entry. 8. For- cible detainment of moveables. 9. Forcible de- tainment of immoveables. ] 0. Robbery *.
XXXVIII.
Offences We comc now to offences against condition, A dmon.— °"' man's condition or station in life is constituted by domesticor the legal relation he bears to the persons who are about him; that is, as we have already had occa- sion to shew f, by duties, which, by being imposed on one side, give birth to rights or powers on the other. These relations, it is evident, may be almost infinitely diversified. Some means, how- ever, may be found of circumscribing the field to immoveables is detainer: this is combined with the word forcible: and what is singular, it is scarcely in use without that word. It was impossible to steer altogether clear of this technical nomenclature, on account of the influence which it has on the body of the language.
II. Self-regarding offences — none.
t Supra. XXV. note.
DIVISION OF OFFENCES. 145 within which the varieties of them are displayed. In the first place, they must either be such as are capable of displaying themselves within the circle of a private family, or such as require a larger space. The conditions constituted by the former sort of relations may be stiled domestic: those constituted by the latter, civil.
XXXIX.
XXXIX.
As to domestic conditions, the legal relations by Domestic which they are constituted may be distinguished grounded^oi into 1. Such as are superadded to relations purely ia^tJ"nsi,fps. natural: and 2. Such as, without any such na- tural basis, subsist purely by institution. By re- lations purely natural, i mean those which may be said to subsist between certain persons in virtue of the concern which they themselves, or cer- tain other persons, have had in the process which is necessary to the continuance of the species. These relations may be distinguished, in the first place, into contiguous and uncontiguous. The uncontiguous subsist through tiie intervention of such as are contiguous. The contiguous may be distinguished, in the first place, into corpiubial, and post-coimubial*. Those which may be termed * By the terms connubial and post-connubial, all I mean at present to bring- to view is, the mere physical union, apart from the ceremonies and legal engagements that will after- wards be considered as accompanying it.
VOL. II. L 146 DIVISION OF OFFENCES.
Chap, connubial are two: 1. That which the male bears ' — V — ' towards the female: 2. That which the female bears to the male*. The post-connubial are either productive or deri'Cative. The productive is that which the male and female above-mentioned bear each of them towards the children who are Relations— * The vague and undetermined nature of the fictitious from every entity, Called a relation, is, on accasions like the present, apt two objects, to be productive of a good deal of confusion. A relation is either said to be borne by one of the objects which are parties to it, to the other, or to subsist between them. The latter mode of phraseology is, perhaps, rather the more common. In such case the idea seems to be, that from the consideration of the two objects there results but one relation, which belongs as it were in common to them both. In some cases, this perhaps may answer the purpose very well: it will not, however, in the present case. For the present purpose it will be necessary we should conceive two relations as re- sulting from the two objects, and borne, since such is the phrase, by the one of them to or towards the other: one relation borne by the first object to the second: another relation borne by the second object to the first. This is ne- cessary on two accounts: 1. Because for the relations them- selves there are in many instances separate names: for example, the relations of guardianship and wardship: in which case, the speaking of them as if they were but one, may be productive of much confusion. 2. Because the two different relationships give birth to so many conditions: which conditions are so far different, that what is predicated and will hold good of the one, will, in various particulars, as we shall see, not hold good of the other.
DIVISION OF OFFENCES. 147 the immediate fruit of their union; this is termed the relation of pareutaUtij. Now as the parents must be, so the children may be, of different sexes^ Accordingly the relation of parentality may be distinguished into four species: 1. That which a father bears to his son: this is termed paternity. 2. That which a father bears to his daughter: this also is termed paternity. 3. That which a mother bears to her son: this is called maternity. 4. That which a mother bears to her daughter: this also is termed maternity. Uncontiguous natural relations may be distinguished into imme- diate and remote. Such as are immediate, are what one person bears to another in consequence of their bearing each of them one simple relation to some third person. Thus the paternal grand- father is related to the paternal grandson by means of the two different relations, of different kinds, which together they bear to the father: the brother on the father's side, to the brother by means of the two relations of the same kind, which together they bear to the father. In the same manner we might proceed to find places in the system for the infinitely-diversified relations which result from the combinations that may be formed by mixing together the several sorts of relationships by ascent, relationships by decent, col- lateral relationships, and relationships by affinity: which latter, when the union between the two parties through whom the affinity takes place is DIVISION OF OFFENCES.
Chap, sanctioned by matrimonial solemnities, are termed — V — ' relationsliips by marriage. But this, as it would be a most intricate and tedious task, so happily is it, for the present purpose, an unnecessary one. The only natural relations to which it will be necessary to pay any particular attention, are those which, when sanctioned bylaw, give birth to the conditions of husband and wife, the two re- lations comprized under the head of parentality, and the corresponding relations comprized under the head filiality or filiation.
What then are the relations of a legal kind which can be superinduced upon the above-men- tioned natural relations? They must be such as it is the nature of law to give birth to and establish. But the relations which subsist purely by institu- tion exhaust, as we shall see, the whole stock of re- lationships which it is in the nature of the law to give birth to and establish. The relations then which can be superinduced upon those which are purely natural, cannot be in themselves any other than what are of the number of those which subsist purely by institution: so that all the difference there can be between a legal relation of the one sort, and a legal relation of the other sort, is, that in the former case the circumstance which gave birth to the natural relation serves as a mark to indicate where the legal relation is to fix: in the latter case, the place where the legal relation is to attach is determined not by that circumstance but DIVISION OF OFFENCES. ^^^ by some other. From these considerations it will ^«^^- appear manifestly enough, that for treating of the ' — v — ' several sorts of conditions, as well natural as purely conventional, in the most commodious order, it will be necessary to give the precedence to the latter. Proceeding throughout upon the same principle, we shall all along give the priority, not to those which are first by nature, but to those which are most simple in point of description. There is no other way of avoiding perpetual an- ticipations and repetitions.
XL.
XL.
We come now to consider the domestic or Domestic family relations, which are purely of legal insti- which are tution. It is to these in effect, that both kinds leg'ai mstitu- of domestic conditions, considered as the work of "'"' law, are indebted for their origin. When the law? no matter for what purpose, takes upon itself to operate, in a matter in which it has not operated before, it can only be by imposing obligation*. Now when a legal obligation is imposed on any man, there are but two ways in which it can in the first instance be enforced. The one is by giving the power of enforcing it to the party in whose favour it is imposed: the other is by reserving that power to certain third persons, who, in virtue of their possessing it, are stiled ministers of justice. In the first case, the party favoured is said to * See ch. xvii. [Limits] ^ iii.
DIVISION OF OFFENCES.
^^^^- possess not only a light as against the party "^ ' obliged, but also a power over him: in the second case, a right only, uncorroborated by power. In the first case, the party favoured may be stiled a superior, and as they are both members of the same family, a domestic superior, with reference to the party obliged: who, in the same case, may be stiled a domestic inferior, with reference to the party favoured. Now in point of possibility, it is evident, that domestic conditions, or a kind of ficti- tious possession analogous to domestic conditions, might have been looked upon as constituted, as well by rights alone, without powers on either side, as by powers. But in point of utility* it * Two persons, who by any means stand engaged to live together, can never live together long, but one of them will choose that some act or other should be done, which the other will choose should not be done. When this is the case, how is the competition to be decided? Laying aside generosity and good-breeding, which are the tardy and uncertain fruits of long-established laws, it is evident that there can be no certain means of deciding it but physical power: which indeed is the very means by which family, as well as other competitions, must have been decided long before any such office as that of legislator had existence. This then being the order of things which the legislator finds established by nature, how should he do better than to acquiesce in it? The persons who by the influence of causes that prevail every where, stand engaged to live together, are, 1. Parent and child, during the infancy of the latter: 2. Man and wife: 3. Children of the same parents. Parent and child, by necessity: since, if the child did not live with the parent (or DIVISION OF OFFENCES.
does not seem expedient: and in point of fact, pro- bably owing to the invariable perception which