XXXVIII. We come now to offences against condition. A man's condition or station in life is constituted by the legal relation he bears to the persons who are about him; that is, as we have already had occasion to show, 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, however, may be found of circumscribing the field 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 styled domestic: those constituted by the latter, civil.
XXXIX. As to domestic conditions, the legal relations by which they are constituted may be distinguished into 1. Such as are superadded to relations purely natural: and 2. Such as, without any such natural basis, subsist purely by institution. By relations purely natural, I mean those which may be said to subsist between certain persons in virtue of the concern which they themselves, or certain 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 the intervention of such as are contiguous. The contiguous may be distinguished, in the first place, into connubial, and post-connubial. Those which may be termed connubial are two: 1. That which the male bears towards the female: 2. That which the female bears to the male. [*] The post-connubial are either productive or derivative. The productive is that which the male and female above-mentioned bear each of them towards the children who are the immediate fruit of their union; this is termed the relation of parentality. 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 immediate 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 grandfather is related to the paternal grandson by means of the two 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 descent, collateral relationships, and relationships by affinity: which latter, when the union between the two parties through whom the affinity takes place is sanctioned by matrimonial solemnities, are termed relationships 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 by law, give birth to the conditions of husband and wife, the two relations comprised under the head of parentality, and the corresponding relations comprised under the head of filiality or filiation.
What then are the relations of a legal kind which can be superinduced upon the above-mentioned 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 institution exhaust, as we shall see, the whole stock of relationships 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 by some other. From these considerations it will appear manifestly enough, that for treating of the 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 anticipations and repetitions.
XL. We come now to consider the domestic or family relations, which are purely of legal institution. It is to these in effect, that both kinds 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 styled ministers of justice. In the first case, the party favoured is said to possess not only a right 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 styled 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 styled a domestic inferior, with reference to the party favoured. Now in point of possibility. it is evident, that domestic conditions, or a kind of fictitious 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 does not seem expedient: and in point of fact, probably owing to the invariable perception which men must have had of the inexpediency, no such 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 beneficial one. If it be for the sake of the inferior that the power is established, the superior is termed a guardian; and the inferior his ward: and the power, being thereby coupled with a trust, may be termed a fiduciary one. If for the sake of a third party, the superior may be termed a superintendent; and the inferior his subordinate. 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 superintendent, or he has not: if he has, the superintendent is his servant, and consequently so also is the subordinate: if not, the superintendent is the master of the subordinate; and all the advantage which the principal has over his superintendent, it 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 nature can the obligations be, to which the superintendent 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 a principal and his superintendent coincide with those of a master and his servant; and consequently that the offences relative to the two former conditions will coincide with the offences relative to the two latter.
XLI. Offences to which the condition of a master, like any other kind of condition, is exposed, may, as hath been already intimated be distinguished into such as concern the existence a of the condition 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 wrongful non-investment, wrongful interception, usurpation, 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 itself; 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 maintenance, or giving wages, to the servant, or paying money to anybody else; it is evident that in virtue of such obligation the condition may become a burthen. In this case, however, the condition possessed by the master will not properly speaking, be the pure and simple condition of a master: it will be a kind of complex object, resolvable into the beneficial condition of a master, and the burthensome obligation which is annexed to it. Still however, if the nature of the obligation lies within a narrow compass, and does not, in the manner of that which constitutes a trust, interfere with the exercise of those powers by which the condition of thesuperior 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 benefit, it is exposed to disturbance. This disturbance will either be the offence of a stranger, or the offence of the servant himself. Where it is the offence of a stranger, and is committed by taking the person of the servant, in circumstances in which the taking of an object belonging to the class of things would be an act of theft, or (what is scarcely worth distinguishing from theft) an act of embezzlement: it may be termed servant-stealing. Where it is the offence of the servant himself, it is styled 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 virtue of the power belonging to this condition, it is liable, on the part of the master to abuse. But this power is not coupled with a trust. The condition of a master is therefore not exposed to any offence which is analogous to breach of trust. Lastly, on account of its being exposed to abuse, it may be conceived to stand, in point of possibility, exposed to bribery. But considering how few, and how insignificant, the persons are who are liable to be subject to the power here in question, this is an offence which, on account of the want of temptation, there will seldom be any example of in practice. We may therefore reckon thirteen sorts of offences to which the condition of a master is exposed; viz. 1. Wrongful non-investment of mastership. 2. Wrongful interception of mastership. 3. Wrongful divestment of mastership. 4. Usurpation of mastership. 5. Wrongful investment of mastership. 6. Wrongful abdication of mastership. 7. Wrongful detrectation of mastership. 8. Wrongful imposition of mastership. 9. Abuse of mastership. 10. Disturbance of mastership. 11. Breach of duty in servants. 12. Elopement of servants. 13. Servant-stealing.
XLII. As to the power by which the condition of a master is constituted, this may be either limited or unlimited. When it is altogether unlimited, the condition of the servant is styled pure slavery. But as the rules of language are as far 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 exemption. 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) which the master may or may not have the power 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. Indifferent countries, therefore, the offences characterised by the above names will, if specifically considered, admit of very different descriptions. If there be a spot upon the earth so wretched as to exhibit the spectacle of pure and absolutely unlimited slavery, on that spot there will be no such thing as any abuse of mastership; which means neither more nor less than that no abuse of mastership will there be treated on the footing of an offence. As to the question, Whether any, and what, modes of servitude ought to be established or kept on foot? this is a question, the solution of which belongs to the civil branch of the art of legislation.
XLIII. Next, with regard to the offences that may concern the condition of a servant. It might seem at first sight, that a condition of this kind could not have a spark of benefit belonging to it: that it could not be attended with any other consequences than such as rendered it a mere burthen. But a burthen itself may be a benefit, in comparison of a greater burthen. Conceive a man's situation then to be such, that he must, at any rate, be in a state of pure slavery. Still may it be material to him, and highly material, who the person is whom he has for his master. A state of slavery then, under one master, may be a beneficial state to him, in comparison with a state of slavery under another master. The condition of a servant then is exposed to the several offences to which a condition, in virtue of its being a beneficial one, is exposed. [*] More than this, where the power of the master is limited, and the limitations annexed to it, and thence the liberties of the servant, are considerable, the servitude may even be positively eligible. For amongst those limitations may be such as are sufficient to enable the servant to possess property of his own: being capable then of possessing property of his own, he may be capable of receiving it from his master: in short, he may receive wages, or other emoluments, from his master; and the benefit resulting from these wages may be so considerable as to outweigh the burthen of the servitude, and, by that means, render that condition more beneficial upon the whole, and more eligible, than that of one who is not in any respect under the control of any such person as a master. Accordingly, by these means the condition of the servant may be so eligible, that his entrance into it, and his continuance in it, may have been altogether the result of his own choice. That the nature of the two conditions may be the more clearly understood, it may be of use to show the sort of correspondency there is between the offences which affect the existence of the one, and those which affect the existence of the other. That this correspondency cannot but be very intimate is obvious at first sight. It is not, however, that a given offence in the former catalogue coincides with an offence of the same name in the latter catalogue: usurpation of servantship with usurpation of mastership, for example. But the case is, that an offence of one denomination in the one catalogue coincides with an offence of a different denomination in the other catalogue. Nor is the coincidence constant and certain: but liable to contingencies, as we shall see. First, then, wrongful non-investment of the condition of a servant, if it be the offence of one who should have been the master, coincides with wrongful detrectation of mastership: if it be the offence of a third person, it involves in it non-investment of mastership, which, provided the mastership be in the eyes of him who should have been master a beneficial thing, but not otherwise, is wrongful. 2. Wrongful interception of the condition of a servant, if it be the offence of him who should have been master, coincides with wrongful detrectation of mastership: if it be the offence of a third person, and the mastership be a beneficial thing, it involves in it wrongful interception of mastership. 3. Wrongful divestment of servantship, if it be the offence of the master, but not otherwise, coincides with wrongful abdication of mastership: if it be the offence of a stranger, it involves in it divestment of mastership, which, in as far as the mastership is a beneficial thing, is wrongful. 4. Usurpation of servantship coincides necessarily with wrongful imposition of mastership: it will be apt to involve in it wrongful divestment of mastership: but this only in the case where the usurper, previously to the usurpation, was in a state of servitude under some other master. 5. Wrongful investment of servantship (the servantship being considered as a beneficial thing) coincides with imposition of mastership; which, if in the eyes of the pretended master the mastership should chance to be a burthen, will be wrongful. 6. Wrongful abdication of servantship coincides with wrongful divestment of mastership. 7. Wrongful detrectation of servantship, with wrongful non-investment of mastership. 8. Wrongful imposition of servantship, if it be the offence of the pretended master, coincides with usurpation of mastership: if it be the offence of a stranger, it involves in it imposition of mastership, which, if in the eyes of the pretended master the mastership should be a burthen, will be wrongful. As to abuse of mastership, disturbance of mastership, breach of duty in servants, elopement of servants, and servant-stealing, these are offences which, without any change of denomination, bear equal relation to both conditions. And thus we may reckon thirteen sorts of offences to which the condition of a servant stands exposed: viz. 1. Wrongful non-investment of servantship. 2. Wrongful interception of servantship. 3. Wrongful divestment of servantship. 4. Usurpation of servantship. 5. Wrongful investment of servantship. 6. Wrongful abdication of servantship. 7. Wrongful detrectation of servantship. 8. Wrongful imposition of servantship. 9. Abuse of mastership. 10. Disturbance of mastership. 11. Breach of duty in servants. 12. Elopement of servants. 13. Servant-stealing.