LI. We shall now be able to apply ourselves with some advantage to the examination of the several offences to which the marital condition, or condition of a husband, 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 commencement. 2. In respect of the placing of 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 practice the signal has usually been, as in point 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 mutual consent, to take upon them this condition. Secondly, and thirdly, with regard to the placing of the obligations which are the result of the contract, it is evident that they must rest either solely on one side, or mutually on both. On the first supposition, 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 suffered to rest all on one side, certain rights are thereby given to the other. There must, therefore, be rights on both sides. Now, where there are mutual rights possessed by two persons, as against each other, either there are powers annexed to those rights, or not. But the persons in question are, by the supposition, to live together: in which case we have shown, that it is not only expedient, but in a manner necessary, that on one side there should be powers. Now it is only 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 shown, 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 interests 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.
LII. The offences then to which the condition of a husband of will be exposed, will be the sum of those to which the two conditions of master and guardian 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 matrimonial relations, and which neither a master nor guardian, as such, nor a parent, at any rate, have usually been permitted to receive. These must of course have been distinguished from the indiscriminate train of services at large which the husband in his character of master is empowered 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 celebration of which the legal condition dates its existence. It is obvious that in point of possibility, 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 afterwards, 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 Mahometan religion. In point of possibility, it is evident that the like liberty might be reserved on 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 arrangements is in point of utility the most expedient, is a question which would require too much discussion 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 solemnization 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 styled 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 involves in it pro tanto that of wrongful divestment of the condition of a wife, in prejudice of his prior wife. If the woman only, then it involves in it pro tanto that of wrongful divestment of the condition of a husband, in prejudice of her prior husband. If both were already 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. Secondly, 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. Thirdly, Disturbing either of the parties to this engagement, in the possession of these characteristic services, may, in like manner, be distinguished from the offence of disturbing them in the enjoyment of the miscellaneous advantages 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 services. And thus we have one-and-twenty sorts of offences to which, as the law stands at present in Christian countries, the condition of a husband 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 investment of the condition of a husband. 7. Wrongful abdication of the condition of a husband. 8. Wrongful detrectation of the condition of a husband. 9. Wrongful imposition of the condition of a husband. 10. Mismanagement of marital guardianship. 11. Desertion of marital guardianship. 12. Dissipation in prejudice of matrimonial wardship. 13. Peculation in prejudice of matrimonial wardship. 14. Abuse of marital power. 15. Disturbance of marital guardianship. 16. Wrongful withholding of connubial services. 17. Adultery. 18. Breach of duty to husbands. 19. Elopement from husbands. 20. Wife-stealing. 21. Bribery in prejudice of marital guardianship. {Corresponding semi-public and self-regarding offences.}
LIII. Next with regard to the offences to which the condition of a wife stands exposed. From the patterns that have been exhibited already, the coincidences and associations that take place between the offences that concern the existence of this condition and those which concern the existence of the condition of a husband, may easily enough be apprehended without farther repetitions. The catalogue of those now under consideration will be precisely the same in every article as the catalogue last exhibited.
LIV. Thus much for the several sorts of offences relative to the several sorts of domestic conditions: those which are constituted by such natural relations 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 grandfather, perhaps, may be called by the law to take upon him the guardianship of his orphan grandson: 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. But still no new sort of domestic condition would result from it: since it has been shown 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, however, they have this in common with the before-mentioned relations, that they are capable of importing either benefit or burthen: they therefore stand exposed to the several offences 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 persuasions—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 hers, or, at least, of some man with whom she has cohabited: the grandson of his father and his mother; and 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 grandfathers 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 relations. 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 relation are annexed perhaps certain remarkable advantages or disadvantages, while to all the intermediate relations none shall be annexed which are in comparison worth noticing. Suppose Antony or Lepidus to have contested the relationship of Octavius (afterwards Augustus) to Caius Julius Cæsar. 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 Cæsar, or Lucius Julius Cæsar'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 Cæsar, was, in comparison, 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 uncontiguous 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 spontaneous 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 exhaustive process: all that can be done is, to pick up and lay together some of the principal articles in each catalogue by way of specimen. The advantages which a given relationship is apt to impart, seem to be referable chiefly to the following heads: 1. Chance of succession to the property, or a part of the property, of the correlative person. 2. Chance of pecuniary support, to be yielded by the correlative person, either by appointment 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 beneficial offices; exemption from such and such burthensome obligations; for instance, paying taxes, serving burthensome offices, &c. &c. 4. Accession of rank by courtesy; including the sort of reputation 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 referable 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: including the legal disabilities, 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: including the loss of the advantages annexed by custom to such rank. 4. Incapacity of contracting matrimony with the correlative person, where the supposed consanguinity or affinity lies within the prohibited degrees. {Public offences}