and produce the same effects; it is making a dis- | the particular construction of the contract. If the tinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but not to conceal its faults. There is one exception, however, to this rule; namely, where the silence of the seller implies some fault in the thing to be sold, and where the buyer has a compensation in the price for the risk which he runs: as where a horse, in a London repository, is sold by public auction, without warranty; the want of warranty is notice of some unsoundness, and produces a proportionable abatement in the price. To this of concealing the faults of what we want to put off, may be referred the practice of passing bad money. This practice we sometimes hear defended by a vulgar excuse, that we have taken the money for good, and must therefore get rid of it. Which excuse is much the same as if one, who had been robbed upon the highway, should allege that he had a right to reimburse himself out of the pocket of the first traveller he met; the justice of which reasoning, the traveller possibly may not comprehend. seller, either expressly, or by implication, or by custom, engage to deliver the goods; as if I buy a set of china, and the china-man ask me to what place he shall bring or send them, and they be broken in the conveyance, the seller must abide by the loss. If the thing sold, remain with the seller, at the instance, or for the conveniency of the buyer, then the buyer undertakes the risk; as if I buy a horse, and mention, that I will send for it on such a day (which is in effect desiring that it may continue with the seller till I do send for it,) then, whatever misfortune befalls the horse in the meantime, must be at my cost. And here, once for all, I would observe, that innumerable questions of this sort are determined solely by custom; not that custom possesses any proper authority to alter or ascertain the nature of right or wrong; but because the contracting parties are presumed to include in their stipulation, all the conditions which custom has annexed to contracts of the same sort: and when the usage is notorious, and no exception made to it, this presumption is generally agreeable to the fact.* If I order a pipe of port from a wine-merchant abroad; at what period the property passes from the merchant to me; whether upon delivery of the wine at the merchant's warehouse; upon its being put on shipboard at Oporto; upon the arrival of the ship in England at its destined port; Where there exists no monopoly or combination, or not till the wine be committed to my servants, the market-price is always a fair price; because or deposited in my cellar; are all questions it will always be proportionable to the use and which admit of no decision, but what custom scarcity of the article. Hence, there need be no points out. Whence, in justice, as well as law, scruple about demanding or taking the market-what is called the custom of merchants, regulates price; and all those expressions, "provisions are the construction of mercantile concerns. extravagantly dear," corn bears an unreasonable price," and the like, import no unfairness or unreasonableness in the seller. If your tailor or your draper charge, or even ask of you, more for a suit of clothes, than the marketprice, you complain that you are imposed upon; you pronounce the tradesman who makes such a charge, dishonest; although, as the man's goods were his own, and he had a right to prescribe the terms upon which he would consent to part with them, it may be questioned what dishonesty there can be in the case, or wherein the imposition consists. Whoever opens a shop, or in any manner exposes goods to public sale, virtually engages to deal with his customers at a market-price; because it is upon the faith and opinion of such an engagement, that any one comes within his shop doors, or offers to treat with him. This is expected by the buyer; is known to be so expected by the seller; which is enough, according to the rule delivered above, to make it a part of the contract between them, though not a syllable be said about it. The breach of this implied contract constitutes the fraud inquired after. Hence, if you disclaim any such engagement, you may set what value you please upon your property. If, upon being asked to sell a house, you answer that the house suits your fancy or conveniency, and that you will not turn yourself out of it, under such a price; the price fixed may be double of what the house cost, or would fetch at a public sale. without any imputation of injustice or extortion upon you. If the thing sold, be damaged, or perish, between the sale and the delivery, ought the buyer to bear the loss, or the seller? This will depend upon CHAPTER VIII. Contracts of Hazard. insurance. By Contracts of Hazard, I mean gaming and What some say of this kind of contracts, "that the other," is neither practicable nor true. It is one side ought not to have any advantage over and judgment, which this rule requires, is seldom not practicable; for that perfect equality of skill to be met with. I might not have it in my power, tennis; lay a wager at a horse-race; or underto play with fairness game at cards, billiards, or write a policy of insurance, once in a twelvemonth, if I must wait till I meet with a person, whose art, skill, and judgment in these matters, is neither requisite to the justice of the contract. One party greater nor less than my own. Nor is this equality may give to the other the whole of the stake, if he please, and the other party may justly accept it, if it be given him; much more therefore may is exactly the same thing, an advantage in the one give to the other a part of the stake; or, what chance of winning the whole. parties ought to do, and what a judge or arbitrator It happens here, as in many cases, that what the would award to be done, may be very different. What the parties ought to do by virtue of their contract, depends upon their consciousness at the time of making it; whereas a third person finds it necessary to found his be false, although the most probable that he could pro judgment upon presumptions, which presumptions may [ceed by. The proper restriction is, that neither side have | contrary, if the damage be occasioned by the an advantage by means of which the other is not fault of the borrower, or by accident in some use aware; for this is an advantage taken, without for which it was not lent, then the borrower must being given. Although the event be still an make it good; as if the coach be overturned or uncertainty, your advantage in the chance has a broken to pieces by the carelessness of your coachcertain value; and so much of the stake, as that man; or the horse be hired to take a morning's value amounts to, is taken from your adversary ride upon, and you go a-hunting with him, or without his knowledge, and therefore without his leap him over hedges, or put him into your cart consent. If I sit down to a game at whist, and or carriage, and he be strained, or staked, or galled, have an advantage over the adversary, by means or accidentally hurt, or drop down dead, whilst of a better memory, closer attention, or a superior you are thus using him; you must make satisknowledge of the rules and chances of the game, faction to the owner. the advantage is fair; because it is obtained by means of which the adversary is aware: for he is aware, when he sits down with me, that I shall exert the skill that I possess to the utmost. But if I gain an advantage by packing the cards, glancing my eye into the adversaries' hands, or by concerted signals with my partner, it is a dishonest advantage; because it depends upon means which the adversary never suspects that I make use of. The same distinction holds of all contracts into which chance enters. If I lay a wager at a horserace, founded upon the conjecture I form from the appearance, and character, and breed, of the hoses. I am justly entitled to any advantage which my judgment gives me: but, if I carry on a clandestine correspondence with the jockeys, and find out from them, that a trial has been actually made, or that it is settled beforehand which horse shall win the race; all such information is so much fraud, because derived from sources which the other did not suspect, when he proposed or accepted the wager. In speculations in trade, or in the stocks, if 1 exercise my judgment upon the general aspect and prospect of public affairs, and deal with a person who conducts himself by the same sort of judgment; the contract has all the equality in it which is necessary: but if I have access to secrets of state at home, or private advice of some decisive measure or event abroad, I cannot avail myself of these advantages with justice, because they are excluded by the contract, which proceeded upon the supposition that I had no such advantage." In insurances, in which the underwriter computes his risk entirely from the account given by the person insured, it is absolutely necessary to the justice and validity of the contract, that this account be exact and complete. CHAPTER IX. Contracts of Lending of Inconsumable Property. WHEN the identical loan is to be returned, as a book, a horse, a harpsichord, it is called inconsumable; in opposition to corn, wine, money, and those things which perish, or are parted with, in the use, and can therefore only be restored in kind. The questions under this head are few and simple. The first is, if the thing lent be lost or damaged, who ought to bear the loss or damage? If it be damaged by the use, or by accident in the use, for which it was lent, the lender ought to bear it; as if I hire a job-coach, the wear, tear, and soiling of the coach, must belong to the lender; or a horse, to go a particular journey, and in going the proposed journey, the horse die or be lamed, the loss must be the lender's: on the The two cases are distinguished by this circumstance: that in one case, the owner foresees the damage or risk, and therefore consents to undertake it; in the other case he does not. It is possible that an estate or a house may, during the term of a lease, be so increased or diminished in its value, as to become worth much more or much less, than the rent agreed to be paid for it. In some of which cases it may be doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this: If the alteration might be expected by the parties, the hirer must take the consequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this year yield nothing, or next to nothing, yet the tenant shall pay his rent; and if they next year produce tenfold the usual profit, no more shall be demanded; because the produce is in its nature precarious, and this variation might be expected. If an estate in the fens of Lincolnshire, or the isle of Ely, be overflowed with water, so as to be incapable of occupation, the tenant, notwithstanding, is bound by his lease; because he entered into it with a knowledge and foresight of the danger. On the other hand, if, by the irruption of the sea into a country where it was never known to have come before, by the change of the course of a river, the fall of a rock, the breaking out of a volcano, the bursting of a moss, the incursions of an enemy, or by a mortal contagion amongst the cattle; if, by means like these, an estate change or lose its value, the loss shall fall upon the owner; that is, the tenant shall either be discharged from his agreement, or be entitled to an abatement of rent. A house in London, by the building of a bridge, the opening of a new road or street, may become of ten times its former value; and, by contrary causes, may be as much reduced in value: here also, as before, the owner, not the hirer, shall be affected by the alteration. The reason upon which our determination proceeds is this; that changes such as the contracting parties, form no part or condition these, being neither foreseen, nor provided for, by of the contract; and therefore ought to have the same effect as if no contract at all had been made, (for none was made with respect to them,) that is, ought to fall upon the owner. CHAPTER X. Contracts concerning the Lending of Money. THERE exists no reason in the law of nature, why a man should not be paid for the lending of his money, as well as of any other property into which the money might be converted. The scruples that have been entertained upon this head, and upon the foundation of which, the | receiving of interest or usury (for they formerly meant the same thing) was once prohibited in almost all Christian countries, arose from a pas sage in the law of MOSES, Deuteronomy, xxiii. 19, 20: "Thou shalt not lend upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury; unto a stranger thou mayest lend upon usury; but unto thy brother thou shalt not lend upon usury." now had, in the place of them, so many one-andtwenty shillings; and the question supposes that he neither intended, nor ought to be a sufferer, by parting with the possession of his money to me. When the relative value of coin is altered by an act of the state, if the alteration would have extended to the identical pieces which were lent, it is enough to return an equal number of pieces of the same denomination, or their present value in any other. As, if guineas were reduced by act of parliament to twenty shillings, so many twenty shillings, as I borrowed guineas, would be a just tion was owing to a debasement of the coin; for then respect ought to be had to the comparative value of the old guinea and the new. This prohibition is now generally understood to have been intended for the Jews alone, as part of the civil or political law of that nation, and cal-repayment. It would be otherwise, if the reducculated to preserve amongst themselves that distribution of property, to which many of their institutions were subservient; as the marriage of an heiress within her own tribe; of a widow who was left childless, to her husband's brother; the year of jubilee, when alienated estates reverted to the family of the original proprietor:-regulations which were never thought to be binding upon any but the commonwealth of Israel. This interpretation is confirmed, I think, beyond all controversy, by the distinction made in the law, between a Jew and a foreigner:-"unto a stranger thou mayest lend upon usury, but unto thy brother thou mayest not lend upon usury;" a distinction which could hardly have been admitted into a law, which the Divine Author intended to be of moral and of universal obligation. The rate of interest has in most countries been regulated by law. The Roman law allowed of twelve pounds per cent. which Justinian reduced at one stroke to four pounds. A statute of the thirteenth year of Queen Elizabeth, which was the first that tolerated the receiving of interest in England at all, restrained it to ten pounds per cent.; a statute of James the first, to eight pounds; of Charles the Second, to six pounds; of Queen Anne, to five pounds, on pain of forfeiture of treble the value of the money lent: at which rate and penalty the matter now stands. The policy of these regulations is, to check the power of accumulating wealth without industry; to give encouragement to trade, by enabling adventurers in it to borrow money at a moderate price; and of late years to enable the state to borrow the subject's money itself. Whoever borrows money, is bound in conscience to repay it. This, every man can see; but every man cannot see, or does not however reflect, that he is, in consequence, also bound to to use the means necessary to enable himself to repay it. "If he pay the money when he has it, or has it to spare, he does all that an honest man can do," and all, he imagines, that is required of him; whilst the previous measures, which are necessary to furnish him with that money, he makes no part of his care, nor observes to be as much his duty as the other; such as selling a familyseat or a family estate, contracting his plan of expense, laying down his equipage, reducing the number of his servants, or any of those humiliating sacrifices, which justice requires of a man in debt, the moment he perceives that he has no reasonable prospect of paying his debts without them. An expectation which depends upon the continuance of his own life, will not satisfy an honest man, if a better provision be in his power; for it is a breach of faith to subject a creditor; when we can help it, to the risk of our life, be the event what it will; that not being the security to which credit was given. I know few subjects which have been more misunderstood, than the law which authorises the imprisonment of insolvent debtors. It has been represented as a gratuitous cruelty, which contributed nothing to the reparation of the creditor's loss, or to the advantage of the community. This prejudice arises principally from considering the Compound interest, though forbidden by the sending of a debtor to gaol, as an act of private law of England, is agreeable enough to natural satisfaction to the creditor, instead of a public punequity; for interest detained after it is due, be-ishment. As an act of satisfaction or revenge, it comes, to all intents and purposes, part of the sum lent. It is a question which sometimes occurs, how money borrowed in one country ought to be paid in another, where the relative value of the precious metals is not the same. For example, suppose I borrow a hundred guineas in London, where each guinea is worth one-and-twenty shillings, and meet my creditor in the East Indies where a guinea is worth no more perhaps than nineteen; is it a satisfaction of the debt to return a hundred guineas, or must I make up so many times one-and-twenty shillings? I should think the latter; for it must be presumed, that my creditor, had he not lent me his guineas, would have disposed of them in such a manner, as to have * By a statute of JAMES the First, interest above eight pounds per cent. was prohibited, (and consequently un: der that rate allowed,) with this sage provision: That this statute shall not be construed or expounded to allow the practice of usury in point of religion or conscience. is always wrong in the motive, and often intemperate and undistinguishing in the exercise. Consider it as a public punishment; founded upon the same reason, and subject to the same rules, as other punishments; and the justice of it, together with the degree to which it should be extended, and the objects upon whom it may be inflicted, will be apparent. There are frauds relating to insolvency, against which it is as necessary to provide punishment, as for any public crimes whatever: as where a man gets your money into his possession, and forthwith runs away with it; or, what is little better, squanders it in vicious expenses; or stakes it at the gaming-table; in the Alley; or upon wild adventures in trade; or is conscious at the time he borrows it, that he can never repay it; or wilfully puts it out of his power, by profuse living; or conceals his effects, or transfers them by collusion to another: not to mention the obstinacy of some debtors, who had rather rot in a gaol, than deliver up their estates; SERVICE. for, to say the truth, the first absurdity is in the | law itself, which leaves it in a debtor's power to withhold any part of his property from the claim of his creditors. The only question is, whether the punishment be properly placed in the hands of an exasperated creditor: for which it may be said, that these frauds are so subtile and versatile, that nothing but a discretionary power can overtake them; and that no discretion is likely to be so well informed, so vigilant, or so active, as that of the creditor. 55 gling or adulterating the articles in which he For the same reason, the master's authority is Clerks and apprentices ought to be employed entirely in the profession or trade which they are intended to learn. Instruction is their hire; and to deprive them of the opportunities of instruction, by taking up their time with occupations foreign to their business, is to defraud them of their wages. It must be remembered, however, that the confinement of a debtor in a jail is a punishment; and that every punishment supposes a crime. To pursue, therefore, with the extremity of legal rigour, The master is responsible for what a servant a sufferer, whom the fraud or failure of others, his own want of capacity, or the disappointments and does in the ordinary course of his employment; miscarriages to which all human affairs are sub-for it is done under a general authority committed ject, have reduced to ruin, merely because we are to him, which is in justice equivalent to a specific provoked by our loss, and seek to relieve the pain direction. Thus, if I pay money to a banker's we feel by that which we inflict, is repugnant not clerk, the banker is accountable; but not if I had only to humanity, but to justice: for it is to per- paid it to his butler or his footman, whose busivert a provision of law, designed for a different ness it is not to receive money. Upon the same and a salutary purpose, to the gratification of pri- principle, if I once send a servant to take up vate spleen and resentment. Any alteration in goods upon credit, whatever goods he afterwards these laws, which could distinguish the degrees of takes up at the same shop, so long as he conguilt, or convert the service of the insolvent debtor tinues in my service, are justly chargeable to my to some public profit, might be an improvement; account. but any considerable mitigation of their rigour, under colour of relieving the poor, would increase their hardships. For whatever deprives the creditor of his power of coercion, deprives him of his security; and as this must add greatly to the difficulty of obtaining credit, the poor, especially the lower sort of tradesmen, are the first who would suffer by such a regulation. As tradesmen must buy before they sell, you would exclude from trade two thirds of those who now carry it on, if none were enabled to enter into it without a capital sufficient for prompt payments. An advocate, therefore, for the interests of this important class of the community, will deem it more eligible, that one out of a thousand should be sent to jail by his creditors, than that the nine hundred and ninetynine should be straitened and embarrassed, and many of them lie idle by the want of credit. CHAPTER XI. Contracts of labour. SERVICE. SERVICE in this country is, as it ought to be, voluntary, and by contract; and the master's authority extends no further than the terms or equitable construction of the contract will justify. The treatment of servants, as to diet, discipline, and accommodation, the kind and quantity of work to be required of them, the intermission, liberty, and indulgence to be allowed them, must be determined in a great measure by custom; for where the contract involves so many particulars, the contracting parties express a few perhaps of the principal, and, by mutual understanding, refer the rest to the known custom of the country in like cases. A servant is not bound to obey the unlawful commands of his master; to minister, for instance, to his unlawful pleasures; or to assist him by unwful practices in his profession; as in smug The law of this country goes great lengths in intending a kind of concurrence in the master, so as to charge him with the consequences of his servant's conduct. If an inn-keeper's servant rob his guests, the inn-keeper must make restitution; if a farrier's servant lame a horse, the farrier must answer for the damage; and still further, if your coachman or carter drive over a passenger in the road, the passenger may recover from you a satisfaction for the hurt he suffers. But these determinations stand, I think, rather upon the authority of the law, than any principle of natural justice." There is a carelessness and facility in "giving characters," as it is called, of servants, especially when given in writing, or according to some established form, which, to speak plainly of it, is a cheat upon those who accept them. They are given with so little reserve and veracity, "that I should as soon depend," says the author of the Rambler, "upon an acquittal at the Old Bailey, by way of recommendation of a servant's honesty, as upon one of these characters." It is sometimes carelessness; and sometimes also to get rid of a bad servant without the uneasiness of a dispute; for which nothing can be pleaded but the most ungenerous of all excuses, that the person whom we deceive is a stranger. There is a conduct the reverse of this, but more injurious, because the injury falls where there is no remedy; I mean the obstructing of a servant's advancement, because you are unwilling to spare his service. To stand in the way of your servant's interest, is a poor return for his fidelity; and affords slender encouragement for good behaviour, in this numerous and therefore important part of the community. It is a piece of injustice which, if practiced towards an equal, the law of honour would lay hold of; as it is, it is neither uncommon nor disreputable. A master of a family is culpable, if he permit any vices among his domestics, which he might restrain by due discipline, and a proper interference. This results from the general obligation to prevent misery when in our power; and the assurance which we have, that vice and misery at | the long run go together. Care to maintain in his family a sense of virtue and religion, received the Divine approbation in the person of ABRAHAM, Gen. xviii. 19: "I know him, that he will command his children, and his household after him; and they shall keep the way of the LORD, to do justice and judgment." And indeed no authority seems so well adapted to this purpose, as that of masters of families; because none operates upon the subjects of it with an influence so immediate and constant. This rule defines the duty of factors, stewards, attorneys, and advocates. One of the chief difficulties of an agent's situation is, to know how far he may depart from his instructions, when, from some change or discovery in the circumstances of his commission, he sees reason to believe that his employer, if he were present, would alter his intention. The latitude allowed to agents in this respect, will be different, according as the commission was confidential or ministerial; and according as the general rule and nature of the service require a What the Christian Scriptures have delivered prompt and precise obedience to orders, or not. concerning the relation and reciprocal duties of An attorney, sent to treat for an estate, if he masters and servants, breathes a spirit of liberality, found out a flaw in the title, would desist from very little known in ages when servitude was proposing the price he was directed to propose; slavery; and which flowed from a habit of con- and very properly. On the other hand, if the templating mankind under the common relation commander-in-chief of an army detach an officer in which they stand to their Creator, and with under him upon a particular service, which serrespect to their interest in another existence;*vice turns out more difficult, or less expedient, "Servants, be obedient to them that are your masters, according to the flesh, with fear and trembling; in singleness of your heart, as unto Christ; not with eye-service, as men-pleasers, but as the servants of Christ, doing the will of God from the heart; with good will, doing service as to the Lord, and not to men; knowing that whatsoever good thing any man doeth, the same shall he receive of the LORD, whether he be bond or free. What is trusted to an agent, may be lost or And ye masters, do the same thing unto them, damaged in his hands by misfortune. An agent forbearing threatening; knowing that your Mas-who acts without pay, is clearly not answerable ter also is in heaven; neither is there respect of persons with him." The idea of referring their service to God, of considering him as having appointed them their task, that they were doing his will, and were to look to him for their reward, was new; and affords a greater security to the master than any inferior principle, because it tends to produce a steady and cordial obedience, in the place of that constrained service, which can never be trusted out of sight, and which is justly enough called eye-service. The exhortation to masters, to keep in view their own subjection and accountable-ters, where the loss is not imputed to any fault or ness, was no less seasonable. CHAPTER XII. Contracts of Labour. COMMISSIONS. WHOEVER undertakes another man's business, makes it his own, that is, promises to employ upon it the same care, attention, and diligence, that he would do if it were actually his own: for he knows that the business was committed to him than was supposed; insomuch that the officer is convinced, that his commander, if he were acquainted with the true state in which the affair is found, would recall his orders; yet must this officer, if he cannot wait for fresh directions without prejudice to the expedition he is sent upon, pursue at all hazards, those which he brought out with him. for the loss; for if he give his labour for nothing, it cannot be presumed that he gave also his security for the success of it. If the agent be hired to the business, the question will depend upon the apprehension of the parties at the time of making the contract; which apprehension of theirs must be collected chiefly from custom, by which probably it was guided. Whether a public carrier ought to account for goods sent by him; the owner or master of a ship for the cargo; the post-office, for letters, or bills enclosed in let neglect of theirs; are questions of this sort. Any expression which by implication amounts to a promise, will be binding upon the agent, without custom; as where the proprietors of a stage-coach advertise that they will not be accountable for money, plate or jewels, this makes them accountable for every thing else; or where the price is too much for the labour, part of it may be considered as a premium for insurance. On the other hand, any caution on the part of the owner to guard risk to be his: as cutting a bank-bill in two, to against danger, is evidence that he considers the send by the post at different times. Universally, unless a promise, either express or tacit, can be proved against the agent, the loss must fall upon the owner. with that expectation. And he promises nothing * Eph. vi. 5-9 The agent may be a sufferer in his own person property by the business which he undertakes; as where one goes a journey for another, and lames his horse, or is hurt himself by a fall upon the road; can the agent in such a case claim a compensation for the misfortune? Unless the same be provided for by express stipulation, the agent is not entitled to any compensation from his employer on that account: for where the danger is not foreseen, there can be no reason to believe that the employer engaged to indemnify the agent against it: still less where it is foreseen: for whoever knowingly undertakes a dangerous |