The Elements of Moral Science (1835, 1856 ed.)

Francis Wayland

BOOK 2, DIVISION 1, CLASS 1, CHAPTER 2, SECTION 2

Modes in Which the Right of Property May Be Violated by the Individual

I have already remarked, that the right of property, so far as it extends, is exclusive both of the individual and of society. This is true in respect to both parties. Thus, whatever I own, I own exclusively both of society and of individuals; and whatever either individuals or society own, they own exclusively of me. Hence, the right of property is equally violated by taking viciously either public or private property; and it is equally violated by taking viciously, whether the aggressor be the public or an individual. And, moreover, it is exclusive to the full amount of what is owned. It is, therefore, as truly a violation of the right of property, to take a little as to take much; to purloin a book or a penknife as to steal money; to steal fruit as to steal a horse; to defraud the revenue as to rob my neighbor; to overcharge the public as to overcharge my brother; to cheat the post-office as to cheat my friend.

It has already been observed, that a right to the property of another can be acquired only by his own voluntary choice. This follows, immediately from the definition of the right of property. But, in order to render this choice of right available, it must be Influenced by no motives presented wrongfully by the receiver Thus if I demand a man’s purse on the alternative that I will shoot him if he deny me, he may surrender it rather than be shot; but I have no right to present such an alternative, and the consent of the owner renders it no less a violation of the right of property. If I inflame a man’s vanity in order to induce lim to buy of me a coach which he does not want, the transaction is dishonest; because I have gained his will by a motive which I had no right to use. So, if I represent an article in exchange to be different from what it is, I present a false motive, and gain his consent by a lie. And thus, in general, as I have said, a transfer of property is morally wrong, where the consent of the owner is obtained by means of a vicious act on the part of the receiver.

The right of property may be violated, I. By taking property without the knowledge of the owner, or theft. It is here to be remembered, that the consent of the owner is necessary to any transfer of property. We do not vary the nature of the act by persuading ourselves that the owner will not care about it, or that he would have no objection, or that he will not know it, or that it will never injure him to lose it. All this may or may not be; but none of it varies the moral character of the transaction. The simple question is, Has the owner consented to the transfer? If he have not, so long as this circumstance, essential to a righteous transfer, is wanting, whatever other circumstances exist, it matters not, the taking of another’s property is theft.

2. By taking the property of another, by consent violently obtained.

Such, is the case in highway robbery. Here, we wickedly obtain control over a man’s life, and then offer him the alternative of death, or delivery of his property. Inasmuch as the consent is no more voluntary than if we tied his hands, and took the money out of his pocket, the violation of property is as great. And, besides this, we assume the power of life and death over an individual, over whom we have no just right whatever. In this case, in fact, we assume the unlimited control over the life and possessions of another, and, on pain of death, oblige him to surrender his property to our will. As, in this case, there is a double and aggravated violation of right, it is, in all countries, considered deserving of condign punishment, and is generally rendered a capital offence.

3. By consent fraudulently obtained, or cheating.

This may be of two kinds:

1. Where no equivalent is offered, as when a beggar obtains money on false pretenses.

2. Where the equivalent is different from what it purports to be; or where the consent is obtained by an immoral act on the part of him who obtains it. As this includes by far the greatest number of violations of the law of property, it will occupy the remainder of this section, and will require to be treated of somewhat at length.

We shall divide it into two parts —

1. Where the equivalent is material; 2. Where the equivalent is immaterial.

I. WHERE THE EQUIVALENT IS MATERIAL. This is of two kinds: 1. Where the transfer is perpetual; 2. Where the transfer is temporary.

FIRST. Where the transfer of property on both sides is perpetual. This includes the law of buyer and seller.

The principal laws of buyer and seller will be seen from a consideration of the relation in which they stand to each other. The seller, or merchant, is supposed to devote his time and capital to the business of supplying his neighbors with articles of use. For his time, risk, interest of money, and skill, he is entitled to an advance on his goods; and the buyer is under a correspondent obligation to allow that advance, except in the case of a change in the market price, to be noticed subsequently.

Hence, 1. The seller is under obligation to furnish goods of the same quality as that ordinarily furnished at the same prices. He is paid for his skill in purchasing, and of course he ought to possess that skill, or to suffer the consequences. If he furnish goods of this quality, and they are, so far as his knowledge extends, free from any defect, he is under obligation to do nothing more than to offer them. He is under no obligations to explain their adaptation, and direct the judgment of the buyer, unless by the law of benevolence. Having furnished goods to the best of his skill, and of the ordinary quality, his responsibility ceases, and it is the business of the buyer to decide whether the article is adapted to his wants. If, however, the seller have purchased a bad article, and have been deceived, he has no right to sell it at the regular price, on the ground that he gave as much for it as for what should have been good. The error of judgment was his, and in his own profession; and he must bear the loss by selling the article for what it is worth. That this is the rule, is evident from the contrary case. If he had, by superior skill, purchased an article at much less than its value, he would consider himself entitled to the advantage, and justly. Where he is entitled, however, to the benefit of his skill, he must, under correspondent circumstances, suffer from the want of it. Hence we say, that a seller is under obligation to furnish goods at the market price, and of the market quality, but is under no obligation to assist the judgment of the buyer, unless the article for sale is defective, and then he is under obligation to reveal it.

The only exception to this rule is, when, from the conditions of the sale, it is known that no guaranty is offered; as when a horse is sold at auction, without any recommendation. Here, every man knows that he buys at his own risk, and bids accordingly.

2. Every one who makes it his business to sell, is not oily bound to sell, but is also at liberty to sell, at the market price. That he is bound to sell thus, is evident from the fact that he takes every means to persuade the public that he sells thus; he would consider it a slander were any one to assert the contrary; and, were the contrary to be believed, his custom would soon be ruined. Where a belief is so widely circulated, and so earnestly inculcated by the seller, he is manifestly under obligation to fulfil an expectation which he has been so anxious to create.

He is also at liberty to sell at the market price; that is, as he is obliged to sell without remuneration, or even with loss, if the article fall in price while in his possession, so he is at liberty to sell it at above a fair remuneration, if the price of the article advances. As he must suffer in case of the fall of merchandise, he is entitled to the correspondent gain, if merchandise rises; and thus his chance on both sides is equalized. Besides, by allowing the price of an. article to rise with its scarcity, the rise itself is in the end checked; since, by attracting an unusual amount of products to the place of scarcity, the price is speedily reduced again to the ordinary and natural equilibrium of supply and demand.

It should, however, be remarked, that this rule applies mainly to those, whose occupation it is to traffic in the article bought and sold. A dealer in china-ware is bound to sell china-ware at the market price; but if a man insist upon buying his coat, he is under no such obligation, for this is not his business. Should he put himself to inconvenience by selling his apparel to gratify the whim of his neighbor, he may, if he will, charge an extra price for this inconvenience. The rule applies in any other similar case. It would, however, become an honest man fairly to state that he did not sell at the market price, but that he charged what he chose, as a remuneration for his trouble.

3. While the seller is under no obligation to set forth the quality of his merchandise, yet he is at liberty to do so, confining himself to truth. He has, however, no right to influence the will of the buyer, by any motives aside from those derived from the real value of the article in question.

Thus, he has no right to appeal to the fears, or hopes, or avarice, of the buyer. This rule is violated, when, in dealings on the exchange, false information is circulated, for the purpose of raising or depressing the price of stocks. It is violated by speculators, who monopolize an article to create an artificial scarcity, and thus raise the price, while the supply is abundant. The case is the same, when a salesman looks upon a stranger who enters his store, and deliberately calculates how he shall best influence, and excite, and mislead his mind, so as to sell the greatest amount of goods at the most exorbitant profit. And, in general, any attempt to influence the mind of the purchaser, by motives aside from those derived from the true character of the article for sale, are always doubtful, and generally vicious.

It is in vain to reply to this, that if this were not done, men could not support their families. We are not inquiring about the support of families, but about a question of right. And it is obvious that, were this plea allowed, it would put an end to all questions of morals; for there never was an iniquity so infamous as not to find multitudes who were ready to justify it on this plea. But we altogether deny the validity of the plea. Were men to qualify themselves properly for their business, and to acquire and exert a suitable skill in the management of it, that skill being beneficially exerted for the community at large, men would find it for their interest to employ it. He who understood his own profession well, and industriously and honestly put his talents into requisition, never stood in need of chicanery, in order to support either himself or his family.

These remarks have been made with respect to the seller. But it is manifest that they are just as applicable to the buyer. Both parties are under equal y imperative and correspondent obligations. If the seller be bound to furnish an article of ordinary quality, and to sell it at the market price, that is, if he be obliged to exert his skill for the benefit of the buyer, and to charge for that skill and capital no more than a fair remuneration, then the buyer is under the same obligation freely and willingly to pay that remuneration. It is disgraceful to him, to wish the seller to labor for him for nothing, or for less than a fair compensation. I f the seller has no right by extraneous considerations to influence the motives of the buyer, the buyer has no right, by any such considerations, to influence the motives of the seller. The buyer is guilty of fraud, if he underrate the seller’s goods, or by any of the artifices of traffic induces him to sell at less than a fair rate of profit. “‘Tis naught,’tis naught, saith the buyer; but when he goeth his way, then he boasteth.” Such conduct is as dishonest and dishonorable now, as it was in the days of Solomon.

It has also been observed above, that when the seller snows of any defect in his product, he is bound to declare it. The same rule, of course, applies to the buyer. If he know that the value of the article has risen; without the possibility of the owner’s knowledge, he is bound to inform him of this change in its value. The sale is, otherwise, fraudulent. Hence, all purchases and sales affected in consequence of secret information, procured in advance of our neighbor, are dishonest. If property rise in value by the providence of God, while in my neighbor’s possession, that rise of value is as much his, as the property itself; and I may as honestly deprive him of the one, without an equivalent, as of the other.

The ordinary pleas, by which men excuse themselves for violation of the moral law of property, are weak and wicked. Thus, when men sell articles of a different quality from that which their name imports — as when wines or liquors are diluted or compounded; when the ordinary weight or measure is curtailed; or where employers defraud ignorant persons of their wages, as I am told is sometimes the case with those who employ certain classes of laborers — it is common to hear it remarked, “The competition is so great, that we could sell nothing, unless we adopted these methods;” or else, “The practice is universal, and if we did not do thus, other persons would, and so the evil would not be diminished.” To all this, it is sufficient to reply: The law of God is explicit on this subject.” Thou shalt love thy neighbor as thyself;” and God allows of no excuses for the violation of his commands; “He hath showed it unto them; therefore they are without excuse.” These pleas are either true or false. If false, they ought to be abandoned. If true, then the traffic itself must be given up; for no man has any right to be engaged in any pursuit, in violation of the laws of God.

A bargain is concluded, when both parties have signified to each other, their will to make the transfer; that is, that each chooses to part with his own property, and to receive the property of the other in exchange. Henceforth, all the risk of loss, and all the chances of gain, are, of course, mutually transferred; although the articles themselves remain precisely as they were before. If a merchant buy a cargo of tea; after the sale, no matter where the tea is, the chances of loss or gain are his, and they are as much his in one place as in another.

So, if the article, after the sale, have become injured, before I take actual possession of it, I bear the lose; because, the right of ownership being vested in me, I could have removed it if I chose, and no one had a right, without my direction, to remove it.

The only exception to this, exists in the case where, by custom or contract, the obligation to deliver, is one of the conditions of the sale. Here the seller, of course, charges more for assuming the responsibility to deliver, and he is to bear the risk, for which he is fairly paid. It is frequently a question, When is the act of delivery completed? This must be settled by precedent; and can rarely be known in any country, until a decision is had in the courts of law. As soon as such a case is adjudicated, the respective parties govern themselves accordingly.

SECONDLY, when the transfer of property is temporary. In this case, the borrower pays a stipulated equivalent for the use of it.

That he should do so is manifestly just, because the property in the hands of the owner is capable of producing an increase, and the owner, if he held it, would derive the benefit of that increase. If he part with this benefit for the advantage of another, it is just that the other should allow him a fair remuneration. If the borrower could not, after paying this remuneration, grow richer than he would be without the use of his neighbor’s capital, he would not borrow. But, inasmuch as he, by the use of it, can be benefitted, after paying for the use, no reason can be conceived why he should not pay for it.

The remuneration paid for the use of capital, in the form of money, is called interest; when in the form of land or houses, it is called rent.

The principles on which the rate of this remuneration is justly fixed, are these: The borrower pays, first, for the use; and, secondly, for the risk.

1. For the use.

Capital is more useful, that is, it is capable of producing a greater remuneration at some times than at others Thus, a flour-mill, in some seasons, is more productive than in others. Land, in some places, is capable of yielding a greater harvest than in others. And thus, at different times, the same property may be capable of bringing in a very different income. And, in general, where the amount of capital to be loaned is great, and the number of those who want to borrow, small, the interest will be low; and where the number of borrowers is great, and the amount of capital small, the rate of interest will be high. The reasons of all this are too obvious to need illustration.

2. For the risk.

When an owner parts with his property, it is put under the control of the borrower, and passes, of course, beyond the control of the owner. Here, there arises a risk over which he has no control. It varies with the character of the borrower for prudence and skill, and with the kind of business in which he is engaged. Property in ships is exposed to greater risk than property in land. A man would consider the chance of having his property returned much better, if employed in the building of dwelling-houses, than in the manufacture of gun-powder. Now, as all these circumstances of risk may enter more or less into every loan, it is evident that they must, in justice, vary the rate at which a loan may be procured.

Hence, I think that the rate of interest, of every sort, being liable to so many circumstances of variation, should not, in any case, be fixed by law; but should be left, in all cases, to the discretion of the parties concerned.

This remark applies as well to loans of money as to loans of other property, because the reasons apply just as much to these as to any other. If it be said, men may charge exorbitant interest, I reply, so they may charge exorbitant rent for houses, and exorbitant hire for horses. And, I ask, how is this evil of exorbitant charges in other cases remedied? The answer is plain. We allow a perfectly free competition, and then the man who will not loan his property, unless at an exorbitant price, is underbidden, and his own rapacity defeats and punishes itself.

And, on the contrary, by fixing a legal rate of interest, we throw the whole community into the power of those who are willing to violate the law. For, as soon as the actual value of money is more than the legal value, those who consider themselves under obligation to obey the laws of the land, will not loan; for they can employ their property to better advantage. Hence, if all were obedient to the law, as soon as property arrived at this point of value, loans would instantly and universally cease. But as some persons are willing to evade the law, they will loan at illegal interest; and, as the capital of those who are conscientious, is withdrawn from the market, and an artificial scarcity is thus produced, those who are not conscientious have it in their power to charge whatever they choose.

Again, when we pay for money loaned, we pay, first, for the use, and, second, for the risk; that is, we pay literally a premium of insurance. As both of these vary with difference of time, and with different individuals, there is a double reason for variation in the rate of interest. When we have a house insured, we pay only for the risk; and, hence, there is here only a single cause of variation. But while all governments have fixed the rate of interest by law, they have never fixed the rate of insurance; which, being less variable, is more properly subject to a fixed rule. This is surely inconsistent; is it not also unjust?

Nevertheless, for the sake of avoiding disputes, and errors of ignorance, it might be wise for society to enact, by law, what shall be the rate of interest, in cases where no rate is otherwise specified. This is the extent of its proper jurisdiction; and doing any thing further is, I think, not only injurious to the interests of the community, but also a violation of the right of property. While, however, I hold this to be true, I by no means hold that, the laws remaining as they are, any individual is justified in taking or giving more than the legal rate of interest. When conscience does not forbid, it is the business of a good citizen to obey the laws; and the faithful obedience to an unwise law, is generally the surest way of working its overthrow.

We shall now proceed to consider the laws which govern this mode of transfer of property.

The loan of money.

1. The lender is bound to demand no more than a fair remuneration for the use of his capital, and for the risk to which it is exposed.

2. He is bound to make use of no unlawful means to influence the decision of the borrower. The principles here are the same as those which should govern the permanent exchange of property. All rumors and false alarms, and all combinations of capitalists to raise by a monopoly the price of money, are manifestly dishonest; nor are they the less so, because many persons may enter into them, or because they have the skill or the power to evade the laws of the land.

3. The borrower is bound to pay a just equivalent, as I have stated above; and he is equally forbidden to use any dishonest motives to influence the decision of the lender.

4. Inasmuch as the risk of the property is one part of the consideration for which the owner receives remuneration, and as this is in every case supposed to be a specified quantity, the borrower has no right to expose the property of another to any risk not contemplated in the contract. Hence, he has no right to invest it in a more hazardous trade, or to employ it in a more hazardous speculation, than that for which he borrowed it; and if he do, he is using it in a manner for which he has paid no equivalent. He is also under obligation to take all the care to avoid losses which he would take if the property were his own; and to use the same skill to conduct his affairs successfully.

5. He is also bound to repay the loan exactly according to the terms specified in the contract. This requires that he pay the full sum promised, and that he pay it precisely at the time promised. A failure, in either case, is a breach of the contract.

The question is often asked, whether a debtor is morally liberated by an act of insolvency. I think not, if he ever afterwards have the means of repayment. It may be said, this is oppressive to debtors; but, we ask, is not the contrary principle oppressive to creditors; and are not the rights of one party just as valuable, and just as much rights, as those of the other? It may also be remarked, that, were this principle acted upon, there would be fewer debtors, and vastly fewer insolvents. The amount of money actually lost by insolvency, is absolutely enormous; and it is generally lost by causeless, reckless speculation. by childish and inexcusable extravagance, or by gambling and profligacy, which are all stimulated into activity by the facility of credit, and the facility with which debts may be cancelled by acts of insolvency. The more rigidly contracts are observed, the more rapidly will the capital of a country increase, the greater will be the inducements to industry, and the stronger will be the barriers against extravagance and vice.

Of the loan of other property.

The principles which apply in this case are very similar to those which have been already stated.

1. The lender is bound to furnish an article, which, so far as he knows, is adapted to the purposes of the bor. rower. That is, if the thing borrowed has any internal defect, he is bound to reveal it. If I loan a horse to a man who wishes to ride forty miles today, which I know is able to go but thirty, it is a fraud. If I let to a man a house which I know to be in the neighborhood of a nuisance, or to be, in part, uninhabitable from smoky chimneys, and do not inform him, it is fraud. The loss in the value of the property is mine, and I have no right to transfer it to another.

2. So the lender has a right to charge the market price arising from the considerations of use, risk, and variation in supply and demand. This depends upon the same principles as those already explained.

3. The borrower is bound to take the same care of the property of another, as he would of his own; to put it to no risk different from that specified or understood in the contract; and to pay the price, upon the principle stated above. Neither party has any right to influence the other by any motives extraneous to the simple business of the transfer.

4. The borrower is bound to return the property loaned, precisely according to the contract. This includes both time and condition. He must return it at the time specified, and in the condition in which he received it, ordinary wear and tear only excepted. If I hire a house for a year, and so damage its paper and paint, that, before it can be let again, it will cost half the price of the rent to put it in repair, it is a gross fraud. I have, by negligence, or other cause, defrauded the owner of half his rent. It is just as immoral as to pay him the whole, and then pick his pocket of the half of what he had received.

The important question arises here, if a loss happen while the property is in the hands of the borrower, on whom shall it fall? The principle I suppose to be this:

1. If it happen while the property is subject to the use specified in the contract, the owner bears it; because it is to be supposed that he foresaw the risk, and received remuneration for it. As he was paid for the risk, he, of course, has assumed it, and justly suffers it.

2. If the loss happen in consequence of any use not contemplated in the contract, then the borrower suffers it. He having paid nothing for insurance against this risk, there is nobody but himself to sustain it, and he sustains it accordingly. Besides, were any other principle adopted, it must put an end to the whole business of loaning; for no one would part with his property temporarily, to be used in any manner the borrower pleased, and be himself responsible for all the loss. If a horse. die while I am using it well, and for the purpose specified, the owner suffers. If it die by careless driving, I suffer the loss. He is bound to furnish a good horse, and I a competent driver.

3. So, on the contrary, if a gain arise unexpectedly. If this gain was one which was contemplated in the contract, it belongs to the borrower. If not, he has no equitable claim to it. If I hire a farm, I am entitled, without any additional charge for rent, to all the advantages arising from the rise in the price of wheat, or from my own skill in agriculture. But if a mine of coal be discovered on the farm, I have no right to the benefit of working it; for I did not hire the farm for this purpose.

The case of insurance.

Here no transfer of property is made, and, of course, nothing is paid for use. But the owner chooses to transfer the risk of use from himself to others, and to pay, for their assuming this risk, a stipulated equivalent. The loss to society, of property insured, is just the same as when it is uninsured. A town s just as much poorer when property is destroyed that is insured, provided it be insured in the town, as though no insurance were effected. The only difference is, that the loss is equalized. Ten men can more easily replace one hundred dollars apiece, who have nine hundred remaining, than the eleventh can replace his whole property of one thousand.

The rule in this case is simple. The insured is bound fully to reveal to the insurer every circumstance within his knowledge, which could in any measure affect the value of the risk; that is to say, the property must be, so far as he knows, what it purports to be, and the risks none other than such as he reveals them. If he expose the property to other risks, the insurance is void; and the underwriter. if the property be lost, refuses to remunerate him; and if it be safe, he returns the premium. If the loss occur within the terms of the policy, the insurer is bound fully and faithfully to make remuneration, precisely according to the terms of the contract.

As to the rate of insurance, very little need be said. It varies with every risk, and is made up of so many conflicting circumstances, that it must be agreed upon by the parties themselves. When the market in this species of traffic is unrestrained by monopolies, the price of insurance, like that of any other commodity, will regulate itself.

II. Next, where the equivalent is IMMATERIAL, as where one party pays remuneration for some service rendered by the other.

The principal cases here are these: That of master and servant, and that of principal and agent.

1. Of master and servant.

1. The master is bound to allow to the servant a fair remuneration. This is justly estimated by uniting the considerations of labor, skill, and fidelity, varied by the rise and fall of the price of such labor in the market. As this, however, would be liable to inconvenient fluctuation, it is generally adjusted by a rate agreed upon by the parties.

2. He is bound to allow him all the privileges to which moral law or established usage entitles him, unless something different from the latter has been stipulated in the contract; and he is at liberty to require of him service upon the same principles.

3. The servant is bound to perform the labor assigned him by usage, or by contract (matters of conscience only excepted), with all the skill which he possesses, making the interests of the employer his own. If either party fail, that is, if the master demand service for which he does not render compensation, or if the servant receive wages for which he does not render the stipulated equivalent, there is a violation of the right of property. Thus, also, there is a violation of right, if the master do not fulfil the terms of the contract, just as it was made; as, for instance, if he do not pay a servant punctually. When the service is performed, the wages belong to the servant, and the master has no more right to them than to the property of any one else. Thus saith St. James: “The hire of your laborers that have reaped your fields, that is kept back by fraud, crieth, and the cry is come into the ears of the Lord of Sabaoth.” And, on the contrary, the servant is bound to use his whole skill and economy in managing the property of his master; and if he destroy it by negligence, or fault, he ought to make restitution.

2. Of principal and agent.

It frequently happens that, in the transaction of business, duties devolve upon an individual, which are to be discharged in different places at the same time. In other cases, in consequence of the subdivision of labor, he requires something to be done for him, which another person can do better than himself. In both cases, either from necessity. or for his own convenience and interest, he employs other men as agents.

Agencies are of two kinds; first, where the principal simply employs another to fulfil his own (that is, the principal’s) will. Here, the principal’s will is the rule, both as to the object to be accomplished, and the manner in which and the means whereby, it is to be accomplished. Secondly. Where the principal only designates the objects to be accomplished, reposing special trust in the skill and fidelity of the agent as to the means by which it is to be accomplished. Such I suppose to be the case in regard to professional assistance.

The laws on this subject respect, first, the relation existing between the principal and the community; and secondly, the relation existing between the principal and agent.

I. The principal is bound by the acts of the agent, while the agent is employed in the business for which the principal has engaged him; but he is responsible no farther.

Thus, it is known that a merchant employs a clerk to receive money on his account. For his clerk’s transactions in this part of his affairs he is responsible; but he would not be responsible, if money were paid to his porter or coachman, because he does not employ them for this purpose. Hence, if the clerk be unfaithful, and secrete the money, the merchant suffers; if the coachman receive the money, and be unfaithful, the payer suffers. It is the merchant’s business to employ suitable agents; but it is the business of his customers to apply to those agents only, whom he has employed.

An important question arises here, namely, When is it to be understood that a principal has employed an agent? It is generally held that, if the principal acknowledge himself responsible for the acts of the agent, he is hereafter held to be responsible for similar acts, until he gives notice to the contrary.

II. Laws arising from the relation subsisting between the principal and the agent.

1. The laws respecting compensation are the same as those already specified, and, therefore, need not be repeated.

2. The agent is bound to give the same care to the affairs of the principal, as to his own. He is another self, and should act in that capacity. The necessity of this rule is apparent from the fact, that no other rule could be devised, either by which the one party would know what justly to demand, or the other when the demands of justice were fulfilled.

Hence, if an agent do not give all the care to the affairs of his principal that he would do to his own, and loss occur, he ought to sustain it. If a lawyer lose a cause through negligence, or palpable ignorance, he ought, in justice, to suffer the consequences. He receives fees for conducting the cause to the best of his ability, and, by undertaking to conduct it, puts it out of the power of the client to employ any one else. Thus, if he neglect it, and, by neglecting it his client is worse off than if he had not undertaken it, he accepts fees for really injuring his neighbor. He ought to bear the loss which has occurred by his own fault.

A question frequently arises here of considerable importance. It is, When is he obliged to obey the instructions of his principal; and when is he obliged to act without regard to them? Although this question does not come under the right of property, it may be as well to notice it here as any where else.

The question, I suppose, is to be answered by deciding to which of the above specified kinds of agencies the case to be considered belongs.

1. If it be simple agency, that is, where the agent undertakes merely to execute the will of the principal, and in the manner, and by the means, specified by the principal, ne must obey implicitly, (conscience only excepted,) unless some fact material to the formation of a judgment has come to light after giving the order, which, if known, would have necessarily modified the intention of the principal. This is the law of the military service. Here, even when the reason for disobedience of orders is ever so clear, and an agent disobeys, he does it at his own risk; and, hence, the modifying facts should be obvious and explicit, in order to justify a variation from the instructions.

2. When the agency is of the other kind, and the will of the principal is only supposed to direct the end, while the means and manner are to be decided upon by the professional skill of the agent, I suppose that the agent is not bound to obey the directions of his principal. He is supposed to know more on the subject, and to be better able to decide what will benefit his principal, than the principal himself; and he has no right to injure another man, even it the other man desire it; nor has he a right to lend himself as an instrument by which another man, by consequence of his ignorance, shall injure himself. Besides. every man has a professional reputation to sustain, on which his means of living depend. He has no right to injure this, for the sake of gratifying another, especially when, by so gratifying the other, he shall ruin himself also. A physician has no right to give his patient drugs which will poison him, because a patient wishes it. A lawyer has no right to bring a cause into court in such a manner as will ensure the loss of it, because his client insists upon it. The professional agent is bound to conduct the business of his profession to the best of his ability. This is the end of his responsibility. If it please his client, well; if not, the relation must cease, and the principal must find another agent.

A representative in Congress is manifestly an agent of the latter of these two classes. He is chosen on account of his supposed legislative ability. Hence, he is strictly a professional agent; and, on these principles, he is under no sort of obligation to regard the instructions of his constituents. He is merely bound to promote their best interests, but the manner of doing it is to be decided by his superior skill and ability.

But, secondly, is he bound to resign his seat, if he differ from them in opinion? This is a question to be decided by the constitution of the country under which he acts. Society, that is, the whole nation, have a right to form a government as they will; and to choose representatives during good behavior, that is, for as long a time as they and their representatives entertain the same views; or, setting aside this mode for reasons which may seem good to themselves, to elect them for a certain period of service. Now, if they have chosen the latter mode, they have bound themselves to abide by it, and have abandoned the former. If they elect him during pleasure, he is so elected. If they, on the contrary, elect him for two years, or for six years, he is so elected. And, so far as I can discover, here the question rests. It is in the power of society to alter the tenure of office, if they please; but, until it be altered, neither party can claim any thing more or different from what that tenure actually and virtually expresses.