“1. If the one borrowing consents to pay the price, it is that this service done him does not appear to him too dear. One may borrow at 20 and even 30 per cent., if one foresees a gain of 40. 2. Why not look at the thing from the lender’s standpoint? If the return of the funds appears more or less doubtful, why should he not have the right to protect himself?” (Dictionary of Politics, by Maurice Block.)
“1. If the one borrowing consents to pay the price, it is that this service done him does not appear to him too dear. One may borrow at 20 and even 30 per cent., if one foresees a gain of 40. 2. Why not look at the thing from the lender’s standpoint? If the return of the funds appears more or less doubtful, why should he not have the right to protect himself?” (Dictionary of Politics, by Maurice Block.)
These arguments prove, in fact, that it is impossible to determine beforehand and absolutely the rate at which it may be permitted to lend, and there are many cases where a very high interest may be legitimate: for instance, in what is calledbottomry-loan, which consists in advances made to shipping merchants on their ships; the law here sanctions very high interest, because of the exceptional risks this kind of enterprise runs.
Does it, however, follow, as some economists seem to think, that there is no occasion to speak ofusury, properly so called, that the termusureris an insult, invented by ignorance, which has no real basis? This we cannot admit. Political economy and morality are two different things.
Even if one should admit that there is no reason for legally fixing the rate of interest, because money is a merchandise like all others which should be left to free circulation, to the free appreciation of the parties, it would not follow that there could be no abuse made of the required interest. Experience proves the contrary. It is not so much the rate of the interest which constitutes the injustice thereof, as the reasons and circumstances of the loan. If, taking advantage of the passions of youth, one loans to a prodigal, knowing him unable to refuse the conditions, because he only listens to pleasure; or if, seducing the ignorant, one dazzles him with magnificent bargains; or, lastly, if profiting by the common desire among peasants to enlarge their grounds, we advance them money, knowing they cannot return it, and secure thereby the property they think they are buying, in all such cases, or similar ones, there is alwaysusury, and morality must condemn such hateful practices.
The hatefulness of usury is brought into strong relief in Molière’s celebrated scene inThe Miser(Act ii., Sc. i.):
La Flèche: Suppose that the lender sees all the securities, and that the borrower be of age and of a family of large property, substantial, secure, clear and free from any incumbrances, there will then be drawn up a regular bond before a notary, as honest a man as may be found, who to this effect shall be chosen by the lender, to whom it is of particular importance that the bond be properly drawn up.Cleante: That’s all right.La Flèche: The lender not to burden his conscience with any scruples, means to give his money at the low rate of denier eighteen[25](5, 9 per cent.) only.Cleante: Denier eighteen? Jolly! That’s honest indeed! No fault to find there!La Flèche: No. But as the said lender has not with him the sum in question, and, to oblige the borrower, he will himself be obliged to borrow from another at the rate of denier five (20 per cent.), it will be but just that the abovesaid first borrower should pay that interest without prejudice to the other, for it is only to oblige him that the said lender resorts to this loan.Cleante: The devil! What a Jew! What an Arab is that! That would be at a greater rate than denier four (25 per cent.).La Flèche: That’s so: it is just what I said.Cleante: Is there anything more?La Flèche: But just a small item. Of the fifteen thousand francs that are asked, the lender can give in cash only twelve thousand, and for the thousand crowns remaining, it will be necessary that the borrower take the clothes, stock, jewelry, etc., of which here is the list.Cleante: The plague on him!
La Flèche: Suppose that the lender sees all the securities, and that the borrower be of age and of a family of large property, substantial, secure, clear and free from any incumbrances, there will then be drawn up a regular bond before a notary, as honest a man as may be found, who to this effect shall be chosen by the lender, to whom it is of particular importance that the bond be properly drawn up.
Cleante: That’s all right.
La Flèche: The lender not to burden his conscience with any scruples, means to give his money at the low rate of denier eighteen[25](5, 9 per cent.) only.
Cleante: Denier eighteen? Jolly! That’s honest indeed! No fault to find there!
La Flèche: No. But as the said lender has not with him the sum in question, and, to oblige the borrower, he will himself be obliged to borrow from another at the rate of denier five (20 per cent.), it will be but just that the abovesaid first borrower should pay that interest without prejudice to the other, for it is only to oblige him that the said lender resorts to this loan.
Cleante: The devil! What a Jew! What an Arab is that! That would be at a greater rate than denier four (25 per cent.).
La Flèche: That’s so: it is just what I said.
Cleante: Is there anything more?
La Flèche: But just a small item. Of the fifteen thousand francs that are asked, the lender can give in cash only twelve thousand, and for the thousand crowns remaining, it will be necessary that the borrower take the clothes, stock, jewelry, etc., of which here is the list.
Cleante: The plague on him!
The next scene shows with remarkable energy thespendthriftand theusurerin conflict with each other.[26]
39. Duties of the debtor.—After the duties of the lender and the creditor, let us point out those of the borrower or the debtor. The only duty for him here is to return what he has borrowed: it is the duty ofpaying one’s debts.
For a long time, the duty of paying one’s debts appeared to be one of those vulgar and commonplace duties intended forthe generality of men, but from which the great lords freed themselves easily. The poor creditors have been the laughing stock in comedies.[27]But it is not doubted nowadays that to refuse to pay what one owes, is really taking from the property of others, and appropriating what does not belong to us.
This duty, besides, is so simple and stringent that it is necessary only to mention it without further development. The same principles apply to the various ways in which one may make use of property, and particularly to the three kinds indicated in the Civil Code—theusufruct, theusage, and theright of action. The common obligation in these three cases, mentioned by the Code, is to use the thing belonging to others as aprudent fatherwould, which is to say, to use it as the proprietor himself would use it, without injuring the object, and even improving it as much as possible. It is especially in commerce that the act of paying one’s debts, is not only more obligatory morally, but socially more necessary than anywhere else. The reason of it is that commerce is impossible without credit. By exacting of every merchant the payment of cash, the springs of exchange would dry up; besides, most of the time it would be useless; for in commerce merchandise is constantly bought against merchandise. It would be loss of time, loss of writing, limitation of the market. In commerce one cannot say of him who owes that he is a borrower; for the next day, according to the fluctuations of demand and supply, he may be the lender. But it is just because credit is indispensable in commerce, that the obligations of the debtors are in some respect more stringent; for the greater the confidence, the more stringent the duty. So thatcommercial honoris likemilitary honor—it does not admit of breaking promises.
40. Failures and bankruptcies.—However strict one should be in commerce in regard to keeping promises, there is nevertheless in the Code cause for distinguishing two differentcases of promise-breaking—failure and bankruptcy; and in this second case, there issimplebankruptcy andfraudulentbankruptcy.
Failure is purely and simply the suspension of payments resulting from circumstances independent of the will of him who fails. Bankruptcy, on the contrary, is suspension of payments resulting either from imprudence or from mistakes of the bankrupt.
Simple bankruptcy occurs in the following cases: 1. If the personal expenses of the merchant or the expenses of his house are judged excessive; 2. If he has spent large sums of money in operations of pure chance either in fictitious operations or extravagant purchases; 3. If with the intention of putting off his failure, he has made purchases to sell again below par; 4. If after cessation of payment, he has paid a creditor to the prejudice of all others. (Code of Commerce.)
Bankruptcy is calledfraudulent, when the bankrupt has abstracted his books, misrepresented a portion of his assets, or declared himself debtor for sums he does not owe.
It is useless to say that this third case is but another case of theft and deserves the severest denunciation. Simple bankruptcy is already very culpable; and failure itself should be regarded by all merchants as a very great misfortune, which they must avoid at any cost.
41. The commodate or gratuitous loan.—The gratuitous loan or commodate is a contract by which one of the parties gives to the other a thing to be made use of, on the condition that it be returned after having served its purpose. (Code Civ., Art. 1875.)
As a fundamental principle, the receiver must return to the lender the very thing he has loaned him. But in case of loss or deterioration of the thing loaned, resulting from the use made of it, on whom is to fall the loss?
“It cannot be presumed, says Kant (Doctrine of the Law, French translation, p. 146), that the lender should take upon himself all the chances of loss or deterioration of the thing loaned; for itstands to reason that the proprietor, besides granting to the borrower the use of the thing he loans him, would not agree toinsurehim also against all risks. If, for instance, during a shower, I enter a house, where I borrow a cloak, and this cloak gets to be forever spoiled from coloring matters thrown upon me by mischance, from a window, or if it be stolen from me in a house where I laid it down, it would be considered generally absurd, to say that I had nothing else to do than to send back the cloak, such as it is, or report the theft that has taken place. The case would be very different if, after having asked permission to use a thing, I should insure myself against the loss in case it should suffer any damage at my hands, by begging not to be held responsible for it. No one would think this precaution superfluous and ridiculous, except perhaps the lender, supposing he was a rich and generous man; for it would then be almost an offense not to expect from his generosity the remission of my debt.”
“It cannot be presumed, says Kant (Doctrine of the Law, French translation, p. 146), that the lender should take upon himself all the chances of loss or deterioration of the thing loaned; for itstands to reason that the proprietor, besides granting to the borrower the use of the thing he loans him, would not agree toinsurehim also against all risks. If, for instance, during a shower, I enter a house, where I borrow a cloak, and this cloak gets to be forever spoiled from coloring matters thrown upon me by mischance, from a window, or if it be stolen from me in a house where I laid it down, it would be considered generally absurd, to say that I had nothing else to do than to send back the cloak, such as it is, or report the theft that has taken place. The case would be very different if, after having asked permission to use a thing, I should insure myself against the loss in case it should suffer any damage at my hands, by begging not to be held responsible for it. No one would think this precaution superfluous and ridiculous, except perhaps the lender, supposing he was a rich and generous man; for it would then be almost an offense not to expect from his generosity the remission of my debt.”
42. The trust.—Trust, in general, is an act by which one receives the thing of another on condition to keep it and restore it in kind. (Code Civ., Art. 1915.)
He who deposits is called deponent (or bailor in England); he who receives the trust is called depositary (in England bailee).
The obligations of the depositary are morally the same as those found in positive law. We have then nothing better to do here than to reproduce the precepts of the Code on this matter.
1. The depositary, in keeping the thing deposited with him, must exercise the same care as with the things belonging to himself (Art. 1927).
2. This obligation becomes still more stringent in the following cases: (a), when the depositary offers himself to receive the thing in trust; (b), when he stipulates for a compensation for the keeping of the thing deposited; (c), when the trust is to the interest of the depositary; (d), when it has been expressly agreed upon that the depositary be answerable for all kinds of mistakes (Art. 1928).
3. The depositary cannot make use of the trust without the express or presumed consent of the deponent (Art 1929).—Forexample, if a library has been left in my trust, it may be presumed that the deponent would not object to my using it; but if the trust consists in valuable jewelry, it can be only by the express wish of the deponent that I could wear it. The difference is simple and easily understood.
4. The depositary should not seek to know what the things deposited with him are, if they have been left with him in a closed trunk or a sealed envelope (Art. 1931).
5. The depositary must return the identical thing he has received. Thus the trust consisting in specie, must be returned in the same specie.
The obligation to restore the thing deposited in kind, and such as it was when delivered, is evident, and constitutes the very essence of the trust.
However, we should take into account the following circumstances:
1. The depositary is not held responsible in cases of insuperable accidents (Art. 1929).
2. The depositary is only held to return the things deposited with him, in the state wherein they are at the moment of restitution. Deteriorations, through no fault of his, are at the expense of the deponent (Art. 1935).
Such are the obligations of the depositary; as to those of the deponent, they resolve themselves into the following rule:
The deponent is held to reimburse the depositary for any expense he may have incurred in the keeping of the trust, and to indemnify him for any loss the trust may have occasioned him (Art. 1947).
43. Possession in good faith.—Possession in good faith is analogous to trust. In fact, he who possesses in good faith a thing that is not his, is in reality but a depositary, but he is so without knowing it. Hence analogies and differences between these two cases, which it is well to point out.
The following are some rules proposed on this subject by Grotius (De la paix et de la guerre, B. 11, ch. xii., § 3); and Puffendorf (Droit de la Nature et des Gens, B. iv., ch. xiii.,§ 12). But as these rules appeared excessive to other jurisconsults, we give them here rather asproblemsthansolutions:
1. A possessor in good faith is not obliged to restore a thing which, against his wish, has come to be destroyed or lost, for his good faith stood to him in lieu of property.
2. A possessor in good faith is held to return not only the thing itself, but also its fruits still existing in kind.
3. A possessor in good faith is held to return the thing itself, and the value of the fruit thereof which he has consumed, if there is reason to believe that he would have otherwise consumed as many similar ones.
4. A possessor in good faith is not held to return in kind the value of the fruit he has neglected to gather or to grow.
5. If a possessor in good faith, having received the thing as a present, should afterwards give it to another, he is not obliged to return it, unless he would otherwise have given one of the same value.
6. If a possessor in good faith, having acquired a thing by an onerous title, should afterwards dispose of it in some way or other, he need return but the gain it procured him.
It is necessary to remark here that in this matter morality should be more severe than the strict law; for if morality demands that a possessor be above all mindful of the rights of others, the law should also consider the rights of him who in good faith and ignorance enjoys what belongs to others. Hence, an essential difference between this case and that of the trust.
44. Things lost.—The question of things lost is related to that of possession in good faith. If the thing lost should fall into my hands by a regular acquisition, by purchase, contract, etc. (as, for instance, buying a horse in the market), it is evident that this case comes under possession in good faith, and that it is the business of the law to decide between proprietor and possessor. But if I appropriate to myself the thing lost, knowing it to be lost, and consequently not mine, there is fraud and converting to my own use the property of others.Public opinion was for a long time indulgent towards this kind of appropriation. It seemed that luck gave a certain title to property. The difficulty, moreover, of finding the true owner, seemed to give to him who had found the object a certain right to it. But to-day society plays the part of intermediary, and assumes the duty of restoring the thing lost to its owner. It is, therefore, to the authorities the object must be returned.[28]
For a long time a misjudgment of the same kind allowed wreckers a pretended right to the objects thrown on the strand by the tempest following a wreck.
45. Sale.—Sale is a contract by which one of the parties engages to deliver a thing, and the other to pay for it (Civ. Code, Art. 1982). There are, then, two contracting parties—thesellerand thebuyer. They are subject to different obligations.
Obligations of the seller.—The seller is held clearly to explain what he engages to do. An obscure and ambiguous agreement is interpreted against the seller (Civ. Code, Art. 1602). Such is the general and fundamental obligation of a sale. It implies, moreover, two others, more particular: 1, that ofdelivering; 2, that ofguaranteeingthe thing sold.
The first is very simple, and raises only questions of fact, as in regard to delays, expenses of removal, etc.; it is the business of the law to regulate these details.
The guaranty, in a moral point of view, is of greater importance. The two essential principles in this matter are expressed by the Code in the following terms:
1. The seller is held to his guaranty in proportion to the concealed defects of the thing sold, rendering it improper for the use for which it was destined, or so diminishing this use, that the buyer would not have bought it, or would not have given so much for it, had he known of these defects.
2. The seller is not held to the obvious defects which the buyer may have been able to see himself.
It is to this question of guaranteeing the thing sold, that the conscience-case mentioned by Cicero, in his treatise onDuties, is applicable:
An honest man puts up for sale a house, for defects only known to him; this house is unhealthy and passes for healthy; it is not known that there is not a room in it where there are no serpents; the timber is bad and threatens ruin; but the master alone knows it. I ask if the seller who should not say anything about it to the buyers, and should get for it much more than he has a right to expect, would do a just or unjust thing. “Certainly he would do wrong,” says Antipater; “is it not, in fact, leading a man into error knowingly?” Diogenes, on the contrary, replies: “Were you obliged to buy? You were not even invited to do so. This man put up for sale a house that no longer suited him, and you bought it because it suited you. If any one should advertise:Fine country-house well built, he is not charged with deceit, even though it was neither the one nor the other. And whilst one is not responsible for what he says, you would make one responsible for what he does not say! What would be more ridiculous than a seller who would make known the defects of the thing he puts up for sale? What more absurd than a public crier who, by order of his master, should cry: “Unhealthy house for sale!”
An honest man puts up for sale a house, for defects only known to him; this house is unhealthy and passes for healthy; it is not known that there is not a room in it where there are no serpents; the timber is bad and threatens ruin; but the master alone knows it. I ask if the seller who should not say anything about it to the buyers, and should get for it much more than he has a right to expect, would do a just or unjust thing. “Certainly he would do wrong,” says Antipater; “is it not, in fact, leading a man into error knowingly?” Diogenes, on the contrary, replies: “Were you obliged to buy? You were not even invited to do so. This man put up for sale a house that no longer suited him, and you bought it because it suited you. If any one should advertise:Fine country-house well built, he is not charged with deceit, even though it was neither the one nor the other. And whilst one is not responsible for what he says, you would make one responsible for what he does not say! What would be more ridiculous than a seller who would make known the defects of the thing he puts up for sale? What more absurd than a public crier who, by order of his master, should cry: “Unhealthy house for sale!”
Despite Diogenes’ railleries, Cicero decides in favor of Antipater and the more rigorous solution. The truly honest man, he says, is he who conceals nothing.
If it is a fault not to reveal the defects of the thing sold, it is a still graver one, and one which becomes a fraud, to ascribe to it qualities or advantages it has not. Cicero cites on this subject a charming and well-known anecdote.
The Roman patrician, C. Canius, a man lacking neither in personal attractions nor learning, having gone to Syracuse,not on business, but to do nothing,[29]as he expressed it, said everywhere that he wished to buy a pleasure-house, to which he might invite his friends, and amuse himself with them away from intruders. Upon this report, a certain Pythius, a Syracuse banker, came to tell him that he had a pleasure-house which was not for sale, but which he offered him and begged himto use as his own, inviting him at the same time to supper for the next day. Canius having accepted, Pythius, who in his quality of banker had much influence among people of all professions, assembled some fishermen, requesting them to go fishing the next day in front of his pleasure-house, giving them his orders. Canius did not fail to present himself at the supper hour. He found prepared a splendid banquet, and a multitude of boats before the grounds of his host. Each of the fishermen brought the fish he had caught, and threw them at Pythius’ feet. Canius wondered: “What means this, Pythius? How! so many fish here, and so many boats!” “Nothing to wonder at,” says Pythius; “all the fish of Syracuse come up here. It is here the fishermen come for water. They could not do without this house.” Canius then becomes excited; he presses, solicits Pythius to sell him the house. Pythius first holds back, but at last gives in. The Roman patrician gives him all he asks for it, and buys it all furnished. The contract is drawn up, and the bargain concluded. The next day, Canius invites his friends, and comes himself early in the morning; but not a boat is in sight. He inquires of the first neighbor if it was a holiday with the fishermen, that he did not see any about. “Not that I know of,” replied the neighbor; “but they never come this way, and I did not know, seeing them yesterday, what it all meant.” Canius was no less indignant than surprised. But what remedy? Aquillius, my colleague and friend, had not yet established his formulas on fraudulent acts.[30]
The Roman patrician, C. Canius, a man lacking neither in personal attractions nor learning, having gone to Syracuse,not on business, but to do nothing,[29]as he expressed it, said everywhere that he wished to buy a pleasure-house, to which he might invite his friends, and amuse himself with them away from intruders. Upon this report, a certain Pythius, a Syracuse banker, came to tell him that he had a pleasure-house which was not for sale, but which he offered him and begged himto use as his own, inviting him at the same time to supper for the next day. Canius having accepted, Pythius, who in his quality of banker had much influence among people of all professions, assembled some fishermen, requesting them to go fishing the next day in front of his pleasure-house, giving them his orders. Canius did not fail to present himself at the supper hour. He found prepared a splendid banquet, and a multitude of boats before the grounds of his host. Each of the fishermen brought the fish he had caught, and threw them at Pythius’ feet. Canius wondered: “What means this, Pythius? How! so many fish here, and so many boats!” “Nothing to wonder at,” says Pythius; “all the fish of Syracuse come up here. It is here the fishermen come for water. They could not do without this house.” Canius then becomes excited; he presses, solicits Pythius to sell him the house. Pythius first holds back, but at last gives in. The Roman patrician gives him all he asks for it, and buys it all furnished. The contract is drawn up, and the bargain concluded. The next day, Canius invites his friends, and comes himself early in the morning; but not a boat is in sight. He inquires of the first neighbor if it was a holiday with the fishermen, that he did not see any about. “Not that I know of,” replied the neighbor; “but they never come this way, and I did not know, seeing them yesterday, what it all meant.” Canius was no less indignant than surprised. But what remedy? Aquillius, my colleague and friend, had not yet established his formulas on fraudulent acts.[30]
46. The price in selling.—If we adhere to the principles of political economy, the price in selling is entirely free: it depends exclusively upon the agreement between the vender and the buyer, and as it is said, on the relation between the supply and demand. Nothing more unjust than the intervention of the law in commercial relations. If the buyer buys at such or such a price, however high, it is that he still finds it to his interest to buy even at that rate. If the vender sells at such or such a price, however low, it is that he cannot get more, and that it suits him rather to sell at that price than keep the thing.
It is then certain that the value of things being wholly relative, it is impossible to determine in an absolute manner what may be called the just price; for that depends on the frequency and rarity of the thing, on the market, onthe wishes of the buyer, and the thousand continually varying circumstances. In short, the sale taking place when one wishing to sell and one wishing to buy, meet each other, it seems that their accord is a proof that the two interested parties have come to an understanding. There would, according to that, never be any unjust sale or purchase. We must consequently consider the definition of commerce given by the socialist, Ch. Fourier: “Commerce is the art of buying for three cents what is worth six, and selling for six what is worth three,” not only as satirical and hyperbolical, but also as unjust and anti-scientific; for we cannot say whether a thing is in itself absolutely worth six cents or three cents.
Does it follow, however, that there can never be any injustice in sale or purchase? If there is noabsoluteprice, there is amediumprice resulting from the state of the market. Now, the buyer may not know this medium price; and it is an injustice on the part of the seller to take advantage of this ignorance to sell above that. The same in the case of the vender’s not knowing the price of the thing he has for sale, which the buyer appropriates, paying for it below its real value.
Besides, whilst admitting that the prices are free, and that the law cannot intervene between vender and buyer, it is, however, necessary to admit that there is a certainmoderationbeyond which injustice begins, if not in alegal, at least in amoralpoint of view. But it is for particular circumstances to determine this limit; and there is no general rule for it. It is a case where not strict justice, butequityis just.
47. Violation of the property of others.—Theft.—In general, every kind of violation of property under one form or another, is calledtheft, and this action is condemned by morality. It is expressed by that ancient commandment:Thou shalt not steal.
The following are the various definitions of theft given by the jurists: “By theft is meant every illegal usurpation of the property of others.”[31]—“By theft is meant every fraudulentcarrying off for gain a thing belonging to others.”[32]Finally our Code declares that, “whosoever has fraudulently carried off anything that does not belong to him, is guilty of theft.” (Penal Code, Art. 379.)
It takes, then, three elements to constitute theft: 1,carrying off; 2,fraud; 3,the thing of another.
Two kinds of theft are distinguished: thesimplethefts and thequalifiedthefts.
The first are those in which are met the three preceding elements, but without any further aggravating circumstance. The second (qualified thefts) are those which to the three preceding elements add some aggravating circumstances. These circumstances are: 1, the quality of the agents (servants, inn-keepers, drivers or boatmen).
It is clear that this is an aggravating circumstance by reason of the facility given by the more intimate relations in which they stand with the injured persons, and the greater confidence these are obliged to grant them.
2.Timesandplaces.—For example, thefts committed by night are more grave than those committed by day, because it is more difficult to anticipate them, to catch their perpetrators, and because they place the injured person in greater danger. The places that aggravate theft are: 1,the fields; 2,inhabited houses; 3,edificesconsecrated to divine worship; 4,highways, etc. It is easy to understand why these different places aggravate the crime by rendering it more easy.
3.Circumstances of execution, as for example: 1, theft committed byseveralpersons; 2, theft bybreaking open; 3, theft with anarmedhand, etc.
In a word, theft becomes greater in proportion to the difficulty of forestalling it, and its menacing character.
One particular form of theft isswindling. Swindling is a sort of theft, since it is a fraudulent appropriation of the thing of another. But it is characterized by the fact that it does not take place through violence, but through cunning,and in deceiving the victim by fraudulent maneuvers; for instance, in making him believe in the existence of false enterprises, in an imaginary power or credit, in calling forth the hope and fear of a chimerical event, etc.
Embezzlementis a sort of swindling, with this difference, that “if the criminal has betrayed the confidence which has been placed in him, he has not solicited this confidence by criminal maneuvers.” Among these may be classed: 1, taking improper advantage of the wants of a minor; 2, misuse of letters of confidence; 3, embezzlement of trusts; 4, the abstraction of documents produced in court.
We have to point out still several other kinds of theft: for example, theft atgamblingorcheating; theft of public moneys or peculation, etc.
In one word, under whatever form it may be concealed, misappropriation of another’s goods is always atheft. In popular opinion it often seems, as if theft really takes place only when the criminal takes violent possession of another’s property. Very often a few false appearances suffice to conceal to the eyes of easy consciences the hatefulness and shamefulness of fraudulent spoliations. One who would scruple to take a piece of money from the purse of another, may have no scruple in deceiving stockholders with fictitious advertisements, and appropriate capital by fraudulent maneuvers. Theft thus committed on a large scale is still more culpable, perhaps, than the act of him who, through want, ignorance, hereditary vices, never knew of any other means of living than by theft.
48. Restitution.—He who has taken possession of anything that belongs to another, or retains it for any cause, is held to restitution as a reparation of his fault. This restitution must be made as soon as possible; otherwise it is necessary to obtain an extension of time from the injured person. If the thing has been lost, restitution should no less be made under some form ofcompensation. Restitution is independent of the penalty attached to the damage and fault.
49. Promises and contracts.—We have seen above that it is an absolute obligation for man to use language only so as to express the truth. Hence every word given becomes essentially obligatory. But it is as yet only a duty of the man towards himself. We have to see wherein and how the word given may become a duty towards others. This is the case withpromisesandcontracts.
Promises.—A promise is the act whereby one gives his word to another either to give him something or do something for him.
According to jurists, a promise is obligatory only when accepted by him to whom it is made.
Pollicitation(promise) says Pothier,[33]produces no obligation properly so called, and he who has made such a promise may, as long as that promise has not been accepted by him to whom it was made, revoke it; for there can be no obligation without a right acquired by the person to whom it has been made and against the one under obligation. Now, as I cannot of my own free will, transfer to any one a right over my property, if his own will does not concur with mine in accepting it; so I cannot, by my promise, grant any one a right over my person, until that one’s will concurs with mine in acquiring it by the acceptance of my promise.
Pollicitation(promise) says Pothier,[33]produces no obligation properly so called, and he who has made such a promise may, as long as that promise has not been accepted by him to whom it was made, revoke it; for there can be no obligation without a right acquired by the person to whom it has been made and against the one under obligation. Now, as I cannot of my own free will, transfer to any one a right over my property, if his own will does not concur with mine in accepting it; so I cannot, by my promise, grant any one a right over my person, until that one’s will concurs with mine in acquiring it by the acceptance of my promise.
It may be true that in strict law, and from the standpoint of positive law, the promise may be obligatory only and capable of enforcement when it has been accepted, and accepted in an obvious and open way; but in natural law and in morality, the promise is obligatory in itself. Of course, it is understood that the promise bears on something advantageous to him to whom we make it; for if I promise some one a thrashing, it cannot be maintained that I am obliged to give it to him; and if he to whom I make the promise will not receive what I offer, I am by that very fact relieved from my promise; for one cannot give anything to another against his will; I am under no obligation to him who will not receive anything from me. But if the promise bears on something advantageous to any one, I am obliged to keep it without asking myself whether he to whomI made it, is disposed to accept it; presuming still that he will accept it. It is therefore not the explicit acceptance of a thing that renders the promise obligatory; it is the explicit refusal which relieves one of the promise; and together with that it would be necessary that the refusal be absolute and not contingent; for even then the promise may remain obligatory, at least in its general principles, while undergoing some modification in the execution.
Is one obliged to keep his promise when the fulfillment of it is injurious to those to whom it was made? “No,” says Cicero; for example:
Sol had promised Phaethon, his son, to fulfil all his wishes. Phaethon wished to get on the chariot of his father; he got his wish, but at the same instant he was struck with lightning. It would have been better for him had his father not kept his promise. May we not say the same of the one Theseus claimed of Neptune? This god having made him the promise to grant him three wishes, Theseus wished for the death of his son Hippolytus, whom he suspected of criminal love.[34]How bitter the tears he shed when his wish was accomplished! What shall we say of Agamemnon? He had made a vow to immolate the most beautiful object in his kingdom; this was Iphigenia; and he immolated her; this cruel action was worse than perjury.
Sol had promised Phaethon, his son, to fulfil all his wishes. Phaethon wished to get on the chariot of his father; he got his wish, but at the same instant he was struck with lightning. It would have been better for him had his father not kept his promise. May we not say the same of the one Theseus claimed of Neptune? This god having made him the promise to grant him three wishes, Theseus wished for the death of his son Hippolytus, whom he suspected of criminal love.[34]How bitter the tears he shed when his wish was accomplished! What shall we say of Agamemnon? He had made a vow to immolate the most beautiful object in his kingdom; this was Iphigenia; and he immolated her; this cruel action was worse than perjury.
The truth of this doctrine cannot be contested. However, it is necessary to understand this exception in the strictest sense, and not to seek in the pretended interest of the person one obliges, a pretext to change one’s mind. For example, if you have promised any one a post which he accepts and desires, you cannot be allowed to relieve yourself of it, by supposing that the post will in reality be a disadvantage to him, and that you will give him a better one another time.
Some other exceptions are pointed out by the moralists and jurists; for example:
1. Necessity relieves of all promise. If, for example, I have promised to go to a meeting and am kept in bed by a serious illness, it is impossible for me to go, and hence I am relieved of my promise.
2. One is not obliged to perform illicit acts: “for,” says Puffendorf, “it would be a contradiction, to be held by civil or moral law, to perform things which the civil or moral law interdicts. It is already doing wrong to promise illicit things, and it is doing wrong twice to perform them.”[35]
3. One cannot promise what belongs to another: for I cannot promise what I cannot dispose of.
50. Contracts.—Acontractis an agreement by which one or several persons engage to do or not to do a certain thing for one or several others. (Code Civ., Art. 1101.)
Conditions of the contract(Art. 1108).—Four conditions are necessary to constitute a valid and legitimate agreement:
1. Theconsentof the parties.2. Thecapacityof the contractors.3. A sureobjectas a basis for the contract.4. A licitcausein the obligation.
1. Theconsentof the parties.
2. Thecapacityof the contractors.
3. A sureobjectas a basis for the contract.
4. A licitcausein the obligation.
(1.) Theconsent.—The consent is the voluntary acceptance of the charges implied in the contract. It isexpressorimplied: express, when it is made manifest by words, writing, or any other kind of expressive signs. It is implied, when, without being expressed by outward signs, it may be deduced, as a manifest consequence of the very nature of the thing, and other circumstances.
All consent presupposes, 1,the use of reason: the insane cannot contract any obligation; children neither;[36]2,necessary knowledge. Therefore all real consent excludes error, at least “when it falls on the very substance of the thing which is its object.”[37]It is, besides, for the jurists to define with precision what is to be understood by error in matter of contract; 3, the liberty of the contracting parties:whence it follows that consent extorted by constraint and violence is not valid.
(2.) Thecapacity to make a contractis deduced from the foregoing principles. All those who are not supposed to be able to give an intelligent and free consent, are incapable and cannot make contracts: for instance, persons under age, persons interdicted, insane or idiots, etc.
(3.) Thematter of a contract.—“All contract has for its object something that a certain party engages to give, or do or not do.” It is evident that a contract without subject-matter and bearing on nothing, is void, and does not exist.
(4.) Thecauseof the contract must be real and legal. Contracts are subject here to the same rules as are promises.
The preceding distinctions are all borrowed from the civil law; but they express no less principles of justice and equity which may be resolved into the following rules:
1. No one should take by surprise or extort a consent through artifice or violence.
2. No one should make a contract with one whom he knows to be incapable of understanding the value of the engagement he is called upon to make: for example, with one under age, incapable before the law, but of whom it is known that the parents will pay the debts; or with one feeble-minded, though not yet an interdicted person, etc.
3. No one should contract a fictitious engagement bearing on matters non-existing, or such as have only an imaginary or illegal cause.
Interpretation of contracts.—Jurists give the following rules regarding the interpretation of obscure clauses in contracts. The rules which are to guide the judge in regard to the law are the same as those which are to enlighten the consciences of the interested parties:
“1. One should, in agreements, find out the mutual intention of the contracting parties, rather than stop at the literal sense of the words.” (Art. 1156.)
“2. When a clause is susceptible of a double meaning, oneshould understand it in the sense in which it may have some effect, rather than in the one in which it would not have any.” (Art. 1157.)
“4. That which is ambiguous is to be interpreted by what is customary in the country where the contract is made.” (Art. 1159.)
“5. One should supply in a contract its customary clauses, though they be not therein expressed.” (Art. 1160.)
“6. All the clauses of agreements are to be interpreted by one another, giving each the sense which results from the entire document.” (Art. 1161.)
“7. If doubtful, the agreement is to be interpreted against the stipulator, and in favor of him who contracted the obligation.” (Art. 1162.)
DUTIES TOWARDS THE LIBERTY AND TOWARDS THE HONOR OF OTHERS.—JUSTICE,DISTRIBUTIVE AND REMUNERATIVE; EQUITY.
SUMMARY.
Liberty in general.—Natural rights.Slavery.—Arguments of J. J. Rousseau against slavery, servitude; oppression of work under divers forms.The honor of others.—Backbitingandslander.Rash judgments.—Analysis of a treatise of Nicole.—Envy;rancor;delation.Justice, distributive and remunerative.—To each according to his merits and his works. Equity.
Liberty in general.—Natural rights.
Slavery.—Arguments of J. J. Rousseau against slavery, servitude; oppression of work under divers forms.
The honor of others.—Backbitingandslander.
Rash judgments.—Analysis of a treatise of Nicole.—Envy;rancor;delation.
Justice, distributive and remunerative.—To each according to his merits and his works. Equity.
After self-preservation, the most sacred prerogative of man isliberty—that is to say, the right of using his faculties, both physical and moral, without injury to others, at his own risks and perils, and on his own responsibility.
51. Liberty—Natural rights.—The word liberty sums up all that is understood by thenatural rights of man, namely, the right to go and come, orindividual liberty; the right to use his physical faculties to supply his wants, orliberty of work; the right to exercise his intelligence and reason, orliberty of thought; the right to honor God according to his lights, orliberty of conscience; the right to have a family, a wife and children, or thefamily right, and finally the right to keep what he has acquired, or the right of property.
52. Slavery.—The privation of all these rights, of all these liberties in an individual, is calledslavery. Slavery is the suppression of the human personality. It consists intransforming man into athing. It takes away from him the right of property and makes of himself a property. The slave is bought and sold as a thing. The fruits of his labor do not belong to him; he cannot come and go at will; he can neither think nor believe freely; in some countries he is interdicted the right of instructing himself; he has no family, or has one temporarily only, since his wife or children may be separately sold; and since the women belong to their masters as their property, there is no bridle against the license of passions.
Although slavery is at the present day well-nigh abolished in the world, still as it is not yet wholly so, and as this abolition is quite recent, and tends constantly to be renewed under one form or another, it is important to sum up the principal reasons that show the immorality and iniquity of this institution.
53. Refutation of slavery—Opinion of J. J. Rousseau.—J. J. Rousseau, in hisContrat Social(I., iv.), combated slavery with as much profundity as eloquence. Let us sum up his arguments with a few citations:
1. Slavery cannot arise from a contract between the master and the slave; for to consent to slavery is to renounce one’s manhood, of which no one can dispose at his will.
To renounce one’s liberty is to renounce one’s manhood, and the rights of humanity, even one’s duties. There is no reparation possible for him that renounces everything. Such a renunciation is incompatible with the nature of man, and is depriving his actions of all morality, and his will of all liberty.
To renounce one’s liberty is to renounce one’s manhood, and the rights of humanity, even one’s duties. There is no reparation possible for him that renounces everything. Such a renunciation is incompatible with the nature of man, and is depriving his actions of all morality, and his will of all liberty.
2. Such a contract is contradictory, for the slave giving himself wholly and without reserve, can receive nothing in return.
It is a vain and contradictory agreement to stipulate an absolute authority on one side, and on the other unlimited obedience. Is it not clear that one can be under no obligation towards him of whom one has a right to demand everything? and does not this single condition, without equivalent, without exchange, carry with it the nullity of the act? For what right could my slave have against me, since all he has belongsto me, and that his right being my own, this my right against myself is a word without any sense.
It is a vain and contradictory agreement to stipulate an absolute authority on one side, and on the other unlimited obedience. Is it not clear that one can be under no obligation towards him of whom one has a right to demand everything? and does not this single condition, without equivalent, without exchange, carry with it the nullity of the act? For what right could my slave have against me, since all he has belongsto me, and that his right being my own, this my right against myself is a word without any sense.
3. Even if one had the right to sell one’s self, one has not the right to sell one’s children. Slavery at least should not be hereditary.
Admitting that one could alienate himself, he could not alienate his children; they are born men and free; their liberty is their own; no one has a right to dispose of it but themselves.Before they have reached the age of reason, their father may, in their name, stipulate conditions for their welfare, but not give them irrevocably and unconditionally over to another; for such a gift is contrary to the ends of nature, and passes the rights of paternity.
Admitting that one could alienate himself, he could not alienate his children; they are born men and free; their liberty is their own; no one has a right to dispose of it but themselves.
Before they have reached the age of reason, their father may, in their name, stipulate conditions for their welfare, but not give them irrevocably and unconditionally over to another; for such a gift is contrary to the ends of nature, and passes the rights of paternity.
4. Slavery, furthermore, comes not from the right of killing in war; for this right does not exist.
The conqueror, according to Grotius, having the right to kill the conquered enemy, the latter may ransom his life at the expense of his liberty: an agreement all the more legitimate, as it turns to the profit of both.But it is clear that this pretended right to kill the conquered adversary does not result in any way from the state of war.... One has a right to kill the defenders of the enemy’s State as long as they hold to their arms; but when they lay these down and surrender, and cease to be enemies, they become simply men again, and one has no longer a right on their life.If war does not give the conqueror the right of massacring the conquered, it does not give him the right of reducing them to slavery.... The right of making of the enemy a slave, does not then follow the right of killing him; it is then an iniquitous exchange to make him buy his life at the price of his liberty, over which one has no right whatsoever.
The conqueror, according to Grotius, having the right to kill the conquered enemy, the latter may ransom his life at the expense of his liberty: an agreement all the more legitimate, as it turns to the profit of both.
But it is clear that this pretended right to kill the conquered adversary does not result in any way from the state of war.... One has a right to kill the defenders of the enemy’s State as long as they hold to their arms; but when they lay these down and surrender, and cease to be enemies, they become simply men again, and one has no longer a right on their life.
If war does not give the conqueror the right of massacring the conquered, it does not give him the right of reducing them to slavery.... The right of making of the enemy a slave, does not then follow the right of killing him; it is then an iniquitous exchange to make him buy his life at the price of his liberty, over which one has no right whatsoever.
Montesquieu has also combated slavery; but he has done it under a form of irony, which gives still greater force to his eloquence.
“If I had to defend the right we have had to make slaves of the negroes, this is what I should say:
“The peoples of Europe having exterminated those ofAmerica, they were obliged to reduce to slavery those of Africa in order to use them to clear the lands.
“Sugar would be too dear if the plant that produces it were not cultivated by slaves.
“The people in question are black from head to foot, and they have so flat a nose that it is almost impossible to pity them.
“One cannot conceive that God, who is a being most wise, could have put a soul, and above all a good soul, in so black a body.
“It is impossible for us to suppose that these people are men; because if we supposed them to be men, one might begin to think we are not Christians ourselves.
“Narrow minds exaggerate too much the injustice done to Africans. For if it were as they say, would it not have come to the minds of the princes of Europe, who make so many useless contracts among each other, to make a general one in favor of mercy and of pity?”[38]
54. Servitude—Restrictions of the liberty to work—Oppression of children under age, etc.—Absolute slavery existed in antiquity, and has particularly reappeared since the discovery of America, owing to the difference of the races: the black race being, seemingly, particularly adapted to the cultivation of the torrid zones, and endowed with great physical vitality, became the serving-racepar excellence: it has even been hunted down for purposes of procreation; hence that infamous traffic, called slave trade, and which is to-day interdicted by all civilized countries.
But there existed in the Middle Ages, and has subsisted even to these days, in Russia, for example, a relative slavery, less rigorous and odious, but which, though circumscribed within certain limits, was not the less a grave outrage to liberty. The serf was allowed a family, and even a certainamount of money; but the ground which he cultivated could never belong to him; and above all he could not leave this ground, nor make of his work and services the use he wished. It was certainly less of an injustice than slavery; but it was still an injustice. However, this injustice exists to-day no longer than as an historical memory. Morality has no longer anything to do with it.
It is the same with the restrictions formerly imposed on the freedom of work under the old administration (ancien régime), the organization ofmaîtrisesandjurandes,[39]namely, and that of corporations; the work was under regulations: each trade had its corporation, which no one could enter or leave without permission. No one was allowed to encroach upon his neighbor’s trade; the barbers defended themselves against the wig-makers; the bakers against the pastry-cooks; hence much that was wrong, and which those who regret this administration have forgotten.
But here again, it is the object of history to inquire into the good or the evil of these institutions; and these questions belong rather to political economy than to morals.
It is not the same regarding the abuse made of the work of children and minors, or the work of women. Severe laws have forbidden such; but it is always to be feared that manners get the better of the laws. The work of children and women being naturally cheaper than the work of men and adults, one is tempted to make use of it; but the work of children is improper because it is taking advantage of and using up beforehand a constitution not yet established, and also because it is thus depriving children of the means of being educated. As to girls and women, in abusing their strength, one compromises their health, and contributes thereby to the impoverishment of the race.
Among the violations the liberty of work may suffer, we must not forget the threats and violences exercised by the workers themselves and inflicted upon each other. It is not rare, in fact, in times of strikes, to see the workmen who do not work try to impose, by main force, their will on those that are at work. Such violences, which have their source in false ideas of brotherhood (a mistakenesprit de corps), and in a false sense of honor, constitute, nevertheless, even when free from the coarse enmity of laziness and vice, waging war with work and honesty—a grave violation of liberty; and it may be considered a sort of slavery and servitude to suffer them.
It is the same with the attempts by which men try to forbid to women factory work, under pretext that it brings the wages down.
This reason, in the first place, is a bad one, because the woman’s earnings come in the end all back to the family, increasing by that much more the share of each. But by what right should work be prohibited to woman more than to man? Certainly it would be desirable if the woman could stay at home, and busy herself exclusively with the cares of the household; but in the present state of things such an ideal is not possible. It is then necessary that woman, who has, like man, her rights as a moral personality, should be allowed by her every-day work to make a living, under the protection of the laws, and at her own risks and perils.
55. Moral oppression—Inward liberty and responsibility.—The question is not only one of corporal liberty, the liberty to work; the laws in a certain measure provide for that, and one can appeal to their authority for self-protection. But there may exist a sort ofmoral bondage, which consists in the subordination of one will to another. It is here that the respect we owe to others calls for a more delicate and a more strict sense of justice: for this sort of slavery is not so obvious, and the love we bear to others may be the very thing to lead us into error.
56. Violation of the honor of others—Backbiting and slander.—Among the first rights of a man, there is one sometimes forgotten, although it is one of the most essential, and this is hisright to honor.
In our ignorance of most men’s actions, and in all cases of the real motives of these actions, it is a duty for us to respect in others what we wish they should respect in us: namely, our honor and our respectability. In fact, it is very difficult for men to form true judgments regarding each other. For fear of committing an injustice, it is better not to judge at all than to judge wrongly.
There are two ways of violating other people’s honor:backbitingandslander. Backbiting consists in saying evil of others, either deservedly or undeservedly; but when undeservedly, and especially when one knows it to be so, backbiting becomes slander. Backbiting may arise from ill-will or thoughtlessness, and slander is the work of baseness and perfidy.
Backbiting which consists in saying evil of others deservedly, is not in itself an injustice: there is to be recognized the right and jurisdiction of public opinion. The honest man should be held in greater esteem than the rogue, even though the latter cannot be reached by the law. Nevertheless, backbiting becomes an injustice through the abuse that is made of it. It is not a question of severe judgments touching actions deserving blame and contempt. It is a question of thoughtless and unkind judgments, and which we are all too easily and readily inclined to pronounce upon others, forgetting that we deserve ourselves as many and severer ones. How shall we conciliate, however, the just severity which vice deserves, with the spirit of kindness which charity and brotherly love demand of us? On the one hand, an excess of kindness seems to weaken the horror of evil, to put on the same level the honest man and the rogue; on the other, the habit of speaking evil weakens the bonds of human society, sets men against each other, and is always, in a certain measure, a shortcoming of sincerity; forone hardly ever tells to people’s faces the evil one says of them in their absence. It is not easy to find the just medium between these two extremes.
It may be laid down as a principle that, except the case where notorious vices, contrary to honor, comes into question, it is better absolutely to abstain from speaking evil of others. For, either the question is of persons one does not know, or knows imperfectly, and then one is never sure not to be mistaken; and most of the time one judges people on the testimony of others only, or one speaks of persons whom one knows, and with whom one stands in more or less friendly relations; and then backbiting becomes a sort of treason. Even deserved blame should not be a favorite subject of conversation: it is an unwholesome and ungenerous pleasure to lay any stress upon the weakness of others. If, at least, one accepted with it the right of others to judge us with the same severity, such reciprocal liberty might prove of some utility; but the backbiter nowise admits that he may be himself the subject of backbiting; and at the very moment when he criticises others, he would himself be very much offended if he learned that the same persons had, on their side, been doing the same in regard to him.
As to slander, it is not necessary to say much on the subject to show to what degree it is cowardly and criminal. What makes it, above all, cowardly is that it is always very difficult to combat and refute slander. Often, and for a long time, it is not known: at the moment when one hears of it, it has taken roots which nothing can destroy. One does not know who spread it, nor whom to answer. It is, besides, often impossible to prove a negative thing: namely, that one has done no harm, that one has not committed such and such an action, and said such or such a word. One always confronts the well-accredited saying: “There is no smoke without fire.”
The wrong done by slander will be better understood by the description Beaumarchais has given of it: