From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia
DISQUISITIONS respecting the origin of property appear to be of little use; partly because the origin can scarcely be determined, and partly because, if it could be determined, the discovery would be little applicable to the present condition of human affairs. In whatever manner an estate was acquired two thousand years ago, it is of no consequence in inquiring who ought to possess it now.
The foundation of the right to property in a more important point. Ordinarily, the foundation is the law of the land. Of civil government—which institution is sanctioned by the Divine will—one of the great offices is, to regulate the distribution of property; to give it, if it has the power of giving; or to decide, between opposing claimants, to whom it shall be assigned.
The proposition therefore, as a general rule, is sound,—He possesses a right to property to whom the law of the land assigns it. This however is only a general rule. It has been sufficiently seen that some legal possessions are not permitted by the moral law. The occasional opposition between the moral and the legal right to property is inseparable from the principle on which law is founded,—that of acting upon general rules. It is impossible to frame any rule the application of which shall, in every variety of circumstances, effect the requisitions of Christian morality. A rule which in nine cases proves equitable may proves utterly unjust in the tenth. A rule which in nine cases promotes the welfare of the citizen may in the tenth outrage reason and humanity.
It is evident that in the present state of legal institutions, the evils which result from laws respecting property must be prevented, if they are prevented at all, by the exercise of virtue in individuals. If the law assigns a hundred pounds to me, which every upright man perceives ought in equity to have been assigned to another, that other has no means of enforcing his claim. Either therefore the claim of equity must be disregarded, or I must voluntarily satisfy it.
There are many cases connected with the acquisition or retention of property, with which the decisions of law are not immediately connected, but respecting which it is needful to exercise a careful discrimination, in order to conform to the requisitions of Christian rectitude. The whole subject is of great interest, and of extensive practical application in the intercourse of life. The reader will therefore be presented with several miscellaneous examples, in which the moral law appears to require greater purity of rectitude than is required by statutes, or than is ordinarily practised by mankind.
INSOLVENCY.—Why is a man obliged to pay his debts? It is to be hoped that the morality of few persons is lax enough to reply—Because the law compels him. But why then is he obliged to pay them? Because the moral law requires it. That this is the primary ground of the obligation is evident; otherwise the payment of any debt which a vicious or corrupt legislature resolved to cancel, would cease to be obligatory upon the debtor. The Virginian statute which we noticed in the last Essay would have been a sufficient justification to the planters to defraud their creditors.
A man becomes insolvent and is made a bankrupt: he pays his credit on ten shillings instead of twenty, and obtains his certificate. The law therefore discharges him from the obligation to pay more. The bankrupt receives a large legacy, or he engages in business and acquires property. Being then able to pay the remainder of his debts, does the legal discharge exempt him from the obligation to pay them? No: and for this reason, that the legal discharge is not a moral discharge; that as the duty to pay at all was not founded primarily on the law, the law cannot warrant him in withholding a part.
It is however said, that the creditors have relinquished their right to the remainder by signing the certificate. But why did they accept half their demands instead of the whole? Because they were obliged to do it; they could get no more. As to granting the certificate, they do it because to withhold it would be only an act of gratuitous unkindness. It would be preposterous to say that creditors relinquish their claims voluntarily; for no one would give up his claim to twenty shillings on the receipt of ten, if he could get the other ten by refusing. It might as reasonably be said that a man parts with a limb voluntarily, because, having incurably lacerated it, he submits to an amputation. It is to be remembered too, that the necessary relinquishment of half the demand is occasioned by the debtor himself: and it seems very manifest that when a man, by his own act, deprives another of his property, he cannot allege the consequences of that act as a justification of withholding it after restoration is in his power.
The mode in which an insolvent man obtains a discharge, does not appear to affect his subsequent duties. Compositions, and bankruptcies, and discharges by an insolvent act are in this respect alike. The acceptance of a part instead of the whole is not voluntary in either case; and neither case exempts the debtor from the obligation to pay in full if he can.
If it should be urged that when a person intrusts property to another, he knowingly undertakes the risk of that other’s insolvency, and that if the contingent loss happens, he has no claims to justice on the other, the answer is this: that whatever may be thought of these claims, they are not the grounds upon which the debtor is obliged to pay. The debtor always engages to pay, and the engagement is enforced by morality: the engagement therefore is binding, whatever risk another man may incur by relying upon it. The causes which have occasioned a person’s insolvency, although they greatly affect his character, do not affect his obligations: the duty to repay when he has the power is the same whether the insolvency were occasioned by his fault or his misfortune. In all cases, the reasoning that applies to the debt applies also to the interest that accrues upon it; although, with respect to the acceptance of both, and especially of interest, a creditor should exercise a considerate discretion.—A man who has failed of paying his debts ought always to live with frugality, and carefully to economize such money as he gains. He should reflect that he is a trustee for his creditors, and that all the needless money which he expends is not his, but theirs.
The amount of property which the trading part of a commercial nation loses by insolvency is great enough to constitute a considerable national evil. The fraud too that is practised under cover of insolvency in doubtless the most extensive of all species of private robbery. The profligacy of some of these cases is well known to be extreme. He who is a bankrupt to-day riots in the luxuries of affluence to-morrow; bows to the creditors whose money he is spending, and exults in the success and the impunity of his wickedness. Of such conduct we should not speak or think but with detestation. We should no more sit at the table, or take the hand, of such a man, than if we knew he had got his money last night on the highway. There is a wickedness in some bankruptcies to which the guilt of ordinary robbers approaches but at a distance. Happy, if such wickedness could not be practised with legal impunity!1 Happy, if public opinion supplied the deficiency of the law, and held the iniquity in rightful abhorrence!2
Perhaps nothing would tend so efficaciously to diminish the general evils of insolvency as a sound state of public opinion respecting the obligation to pay our debts. The insolvent who, with the means of paying, retains the money in his own pocket, is, and he should be regarded as being, a dishonest man. If public opinion held such conduct to be of the same character as theft, probably a more powerful motive to avoid insolvency would be established than any which now exists. Who would not anxiously (and therefore in almost all cases successfully) struggle against insolvency, when he knew that it would be followed, if not by permanent poverty, by permanent disgrace! If it should be said that to act upon such a system would overwhelm an insolvent’s energies, keep him in perpetual inactivity, and deprive his family of the benefit of his exertions,—I answer, that the evil, supposing it to impend, would be much less extensive than may be imagined. The calamity being foreseen would prevent men from becoming insolvent; and it is certain that the majority might have avoided insolvency by sufficient care. Besides, if a man’s principles are such that he would rather sink into inactivity than exert himself in order to be just, it is not necessary to mould public opinion to his character. The question too is, not whether some men would not prefer indolence to the calls of justice, but whether the public should judge accurately respecting what those calls are. The state, and especially a family, might lose occasionally by this reform of opinion,—and so they do by sending a man to New South Wales; but who would think this a good reason for setting criminals at large? And, after all, much more would be gained by preventing insolvency than lost by the ill consequences upon the few who failed to pay their debts.
It is cause of satisfaction that, respecting this rectified state of opinion, and respecting integrity of private virtue, some examples are offered. There is one community of, Christians which holds its members obliged to pay their debts whenever they possess the ability, without regard to the legal discharge.3 By this means there is thrown over the character of every bankrupt who possesses property a shade which nothing but payment can dispel. The effect (in conjunction we may hope with private integrity of principle) is good—good, both in instituting a new motive to avoid insolvency, and in inducing some of those who do become insolvent subsequently to pay all their debts.
Of this latter effect many honourable instances might be given: two which have fallen under my observation I would briefly mention.—A man had become insolvent, I believe, in early life; his creditors divided his property among them, and gave him a legal discharge. He appears to have formed the resolution to pay the remainder, if his own exertions should enable him to do it. He procured employment, by which however he never gained more than twenty shillings a week; and worked industriously and lived frugally for eighteen years. At the expiration of this time, he found he had accumulated enough to pay the remainder, and he sent the money to his creditors. Such a man, I think, might hope to derive, during the remainder of his life, greater satisfaction from the consciousness of integrity than he would have derived from expending the money on himself. It should be told that many of his creditors, when they heard the circumstances, declined to receive the money or voluntarily presented it to him again. One of these was my neighbour: he had been little accustomed to exemplary virtue, and the proffered money astonished him: he talked in loud commendation of what to him was unheard-of integrity; signed a receipt for the amount, and sent it back as a present to the debtor. The other instance may furnish hints of a useful kind. It was the case of a female who had endeavoured to support herself by the profits of a shop. She however became insolvent, paid some dividend, and received a discharge. She again entered into business, and in the course of years had accumulated enough to pay the remainder of her debts. But the infirmities of age were now coming on, and the annual income from her savings was just sufficient for the wants of declining years. Being thus at present unable to discharge her obligations without subjecting herself to the necessity of obtaining relief from others; she executed a will, directing that at her death the creditors should be paid the remainder of their demands: and when she died, they were paid accordingly.
WILLS, LEGATEES, AND HEIRS. The right of a petition to order the distribution of his property after death is recommended by its utility; and were this less manifest than it is, it would be sufficient for us that the right in established by civil government.
It however happens in practice, that persons sometimes distribute their property in a manner that is both unreasonable and unjust. This evil the law cannot easily remedy; and consequently the duty of remedying it devolves upon those to whom the property is bequeathed. If they do not prevent the injustice, it cannot be prevented. This indicates the propriety, on the part of a legatee or an heir, of considering, when property devolves to him in a manner or in a proportion that appears improper, how he may exercise upright integrity lest he should be the practical agent of injustice or oppression. Another cause for the exercise of this integrity consists in this circumstance:—When the right of a person to bequeath his property is admitted, it is evident that his intention ought in general to be the standard of his successor’s conduct: and accordingly the law, in making enactments upon the subject, directs much of its solicitude to the means of ascertaining and of fulfilling the testator’s intentions. These intentions must, according to the existing systems of jurisprudence be ascertained by some general rules,—by a written declaration perhaps, or a declaration of a specified kind, or made in a prescribed form, or attested in a particular manner. But in consequence of this it happens, that as through accident or inadvertency a testator does not always comply with these forms, the law, which adheres to its rules, frustrates his intentions, and therefore, in effect, defeats its own object in prescribing the forms. Here again the intentions of the deceased and the demands of equity cannot be fulfilled, except by the virtuous integrity of heirs and legatees.
I. If my father, who had one son besides myself, left nine-tenths of his property to me, and only the remaining tenth to my brother, I should not think the will, however authentic, justified me in taking so large a proportion, unless I could discover some reasonable motive which influenced my father’s mind. If my brother already possessed a fortune, and I had none; if I were married and had a numerous family, and he were single and unlikely to marry; if he was incurably extravagant, and would probably in a few weeks or months squander his patrimony; in these or in such circumstances, I should think myself at liberty to appropriate my father’s bequest: otherwise I should not. Thus, if the disproportionate division was the effect of some unreasonable prejudice against my brother or fondness for me; or if it was made at the unfair instigation of another person, or in a temporary fit of passion or disgust; I could not, virtuously, enforce the will. The reason is plain. The will being unjust or extremely unreasonable, I should be guilty of injustice or extreme unreasonableness in enforcing it.
By the English law, the real estates of deceased persona are not available for the payment of debts of simple contract, unless they are made so by the will. The rule is, to be sure, sufficiently barbarous; and he who intentionally forbears to make the estates available dies, as has been properly observed, with a deliberate fraud in his heart. But this fraud cannot be completed without the concurrence of a second person, the heir. He therefore is under a moral obligation to pay such debts out of the real estate, notwithstanding the deficiency of the will: for if the father was fraudulent in making such a will, the son is fraudulent in taking advantage of his parent’s wickedness. He may act with strict legality in keeping the property, but he is condemned as dishonest by the moral law.
II. A person bequeaths five hundred pounds to some charity,—for example, to the Foundling,—and directs that the money shall be laid out in land. His intention is indisputably plain: but the law, with certain motives, says that the direction to lay out the money in land makes the bequest void; and it will not enforce the bequest. But, because the testator forgot this, can the residuary legatee honestly put the five hundred pounds into his own pocket? Assuredly he cannot. The money is as truly the property of the Foundling as if the will had been accurately framed. The circumstance that the law will not compel him to give it up, although it may exempt him from an action, cannot exempt him from guilt.
The law, either with reason or without it, prefers that an estate should descend to a brother’s son rather than a sister’s. Still it permits a man to leave it to his sister’s son if he pleases; and only requires, that when he wishes to do this, he shall have three witnesses to his will instead of two. The reader will remark that the object of this legal provision is, that the intention of the party shall be indisputably known. The legislature does not wish to control him in the disposition of his property, but only to ascertain distinctly what his intention is. A will then is made, leaving an estate to a sister’s son, and is attested by two witnesses only. The omission of the third is a matter of mere inadvertence: no doubt exists as to the person’s intention or its reasonableness. Is it then consistent with integrity for the brother’s son to take advantage of the omission, and to withhold the estate from his cousin? I think the conscience of every man will answer, No: and if this be the fact, we need inquire no further. Upon such a subject, the concurrent dictates in the minds of men can scarcely be otherwise than true and just. But even critically, the same conclusion appears to follow. The law required three witnesses in order that the person’s intention should be known. Now it is known: and therefore the very object of the law is attained. To take advantage of the omission is, in reality, to misapply the law. It is insisting upon its letter in opposition to its motives and design. Dr. Paley has decided this question otherwise, by a process of reasoning of which the basis does not appear very sound. He says that such a person has no “right” to dispose of the property, because the law conferred the right upon condition that he should have three witnesses, with which condition he has not complied. But surely the “right” of disposing property is recognised generally by the law; the requisition of three witnesses is not designed to confer a right, but to adjust the mode of exercising it. Indeed, Paley himself virtually gives up his own doctrine; for he says he should hesitate in applying it, if “considerations of pity to distress, of duty to a parent, or of gratitude to a benefactor,”4 would be disregarded by the application; why should these considerations suspend the applicability of his doctrine! Because Christianity requires us to attend to them,—which is the very truth we are urging: we say the permission of the law is not a sufficient warrant to disregard the obligations of Christianity.
A man who possesses five thousand pounds has two sons, of whom John is well provided for, and Thomas is not. With the privity of his sons he makes a will, leaving four thousand pounds to Thomas and one to John, explaining to both the reason of this division. A fire happens in the house, and the will is burnt; and the father, before he has the opportunity of making another, is carried off by a fever. Now the English law would assign a half of the money to each brother. If John demands his half, is he a just man? Every one, I think, will perceive that he is not, and that if he demanded it, he would violate the duties of benevolence. The law is not his sufficient rule.
A person whose near relations do not stand in need of his money adopts the children of distant relatives, with the declared intention or manifest design of providing for them at his death. If, under such circumstances, he dies without a will, the heir-at-law could not morally avail himself of his legal privilege, to the injury of these expectant parties. They need the money, and he does not; which is one good reason for not seizing it: but the intention of the deceased invested them with a right; and so that the intention is known, it matters little to the moral obligation whether it is expressed on paper or not.
Possibly some reader may say, that if an heir or legatee must always institute inquiries into the uncertain claims of others before he accepts the property of the deceased, and if he is obliged to give up his own claims whenever theirs seem to preponderate, he will be involved in endless doubts and scruples, and testators will never know whether their wills will be executed or not: the answer is, that no such scrupulousness is demanded. Hard-heartedness, and extreme unreasonableness, and injustice are one class of considerations; critical scruples and uncertain claims are another.
It may be worth a paragraph to remark, that it is to be feared some persons think too complacently of their charitable bequests, or, what is worse, hope that it is a species of good works which will counterbalance the offence of some present irregularities of conduct. Such bequests ought not to be discouraged; and yet it should be remembered that he who gives money after his death parts with nothing of his own. He gives it only when he cannot retain it. The man who leaves his money for the single purpose of doing good does right; but he who hopes that it is a work of merit should remember that the money is given, that the privation is endured, not by himself but by his heirs. A man who has more than he needs should dispense it while it is his own.
MINORS’ DEBTS. A young man under twenty-one years of age purchases articles of a tradesman, of which some are necessary and some are not. Payment for unnecessary articles cannot be enforced by the English law,—the reason with the legislature being this, that thoughtless youths might be practised upon by designing persons, and induced to make needless and extravagant purchases. But is the youth who purchases unnecessary articles with the promise to pay when he becomes of age exempted from the obligation? Now it is to be remembered, generally, that this obligation is not founded upon the law of the land, and therefore that the law cannot dispense with it. But if the tradesman has actually taken advantage of the inexperience of a youth, to cajole him into debts of which he was not conscious of the amount or the impropriety, it does not appear that he is obliged to pay them; and for this reason, that he did not, in any proper sense of the term, come under an obligation to pay them. In other cases, the obligation remains. The circumstance that the law will not assist the creditor to recover the money does not dispense with it. It is fit, no doubt, that these dishonourable tradesmen should be punished, though the mode of punishing them is exceptionable indeed. It operates as a powerful temptation to fraud in young men, and it is a bad system to discourage dishonesty in one person by tempting the probity of another. The youth too is of all persons the last who should profit by the punishment of the trader. He is reprehensible himself: young men who contract such debts are seldom so young or so ignorant as not to know that they are doing wrong.
A man’s wife “runs him into debt” by extravagant purchases which he is alike unable to prevent or to afford. Many persons sell goods to such a woman who are conscious of her habits and of the husband’s situation, yet continue to supply her extravagance, because they know the law will enable them to enforce payment from the husband. These persons act legally, but they are legally wicked. Do they act as they would desire others to act towards them? Would one of these men wish another tradesman so to supply his own wife if she was notoriously a spendthrift? If not, morality condemns his conduct: and the laws, in effect, condemn it too; for the legislature would not have made husbands responsible for their wives’ debts any more than for their children’s, but for the presumption that the wife generally buys what the husband approves. Debts of unprincipled extravagance are not debts which the law intended to provide that the husband should pay. If all women contracted such debts, the legislature would instantly alter the law. If the legislature could have made the distinction, perhaps it would have made it; since it did not or could not, the deficiency must be supplied by private integrity.
BILLS OF EXCHANGE. The law of England provides, that if the possessor of a bill of exchange fails to demand payment on the day on which it becomes due, he takes the responsibility, in case of its eventual nonpayment, from the previous endorsers, and incurs it himself. This as a general rule may be just. A party may be able to pay to-day and unable a week hence; and if in such a case a loss arises by one man’s negligence, it were manifestly unreasonable that it should be sustained by others. But if the accepter becomes unable to pay a week or a month before the bill is due, the previous endorsers cannot in justice throw the loss upon the last possessor, even though he fails to present it on the appointed day. For why did the law make its provision? In order to secure persons from the loss of their property by the negligence of others over whom they had no control. But, in the supposed case, the loss is not occasioned by any such cause, and therefore the spirit of the law does not apply to it. You are insisting upon its literal, in opposition to its just, interpretation. Whether the bill was presented on the right day or the wrong makes no difference to the previous endorsers, and for such a case the law was not made.
A similar rule of virtue applies to the case of giving notice of refusal to accept or to pay. If, in consequence of the want of this notice, the party is subjected to loss, he may avail himself of the legal exemption from the last possessor’s claim. If the want of notice made no difference in this situation, he may not.
SHIPMENTS. The same principles apply to a circumstance which not frequently occurs among men of business, and in which integrity is, I think, very commonly sacrificed to interest. A tradesman in Falmouth is in the habit of purchasing goods of merchants in London, by whom the goods are forwarded in vessels to Falmouth. Now it is a rule of law, founded upon established custom, that goods when shipped are at the risk of the buyer. The law however requires that an account of the shipment shall be sent to the buyer by post, in order that if he thinks proper he may ensure his goods; and in order to effect this object, the law directs, that if the account be not sent and the vessel is wrecked, it will not enforce payment from the buyer. All this as a general rule is just. But in the actual transactions of business, goods are very frequently sent by sea by an express or tacit agreement between the parties without notice by the post. The Falmouth tradesman then is in the habit of thus conducting the matter for a series of years. He habitually orders his goods to be sent by ship, and the merchant, as habitually, with the buyer’s knowledge, sends the invoice with them. Of course the buyer is not in the habit of ensuring. At length a vessel is wrecked and a package is lost. When the merchant applies for payment, the tradesman says, “No: you sent no invoice by post: I shall not pay you, and I know you cannot compel me by law.” Now this conduct, I think, is condemned by morality. The man in Falmouth does not suffer any loss in consequence of the want of notice. He would not have ensured if he had received it; and therefore the intention of the legislature in withholding its assistance from the merchant was not to provide for such a case. This to take advantage of the law without regard to its intention is unjust. Besides, the custom of sending the invoice with the goods rather than by post is for the advantage of the buyer only: it saves him a shilling in postage. The understanding among men of business that the risk of loss at sea impends on buyers is so complete, that they habitually take that risk into account in the profits which they demand on their goods: sellers do not; and this again indicates the injustice of throwing the loss upon the seller when an accident happens at sea. Yet tradesmen I believe rarely practise any other justice than that which the law will enforce; as if not to be compelled by law were to be exempt from all moral obligation. It is hardly necessary to observe, that if the man in Falmouth was actually prevented from ensuring by the want of an invoice by post, he has a claim of justice as well as of law upon the merchant in London.
DISTRAINTS. It is well known that in distraints for rent, the law allows the landlord to seize whatever goods he finds upon the premises, without inquiring to whom they belong. And this rule, like many others, is good as a general rule can be; since an unprincipled tenant might easily contrive to make it appear that none of the property was his own, and thus the landlord might be irremediably defrauded. Yet the landlord cannot always virtuously act upon the rule of law. A tenant who expects a distraint to-morrow, and of whose profligacy a lodger in the house has no suspicion, secretly removes his own goods in the night, and leaves the lodger’s to be seized by the bailiff. The landlord ought not, as a matter of course, to take these goods, and to leave a family perhaps without a table or a bed.—The law indeed allows it, but benevolence, but probity, does not.
A man came to a friend of mine and proposed to take a number of his sheep to graze. My friend agreed with him, and sent the sheep. The next day these sheep were seized by the man’s landlord for rent. It was an artifice, preconcerted between the landlord and the warrant, in order that the rent might be paid out of my friend’s pocket! Did this landlord act justly? The reader says, “No, he deserved a prison.” And yet the seizure was permitted by the law; and if morality did not possess an authority superior.to law, the seizure would have been just. Now, in less flagitious instances, the same regard to the dictates of morality is to be maintained, notwithstanding the permissions of law. The contrivers of this abandoned iniquity possessed the effrontery to come afterward to the gentleman whom they had defrauded, to offer to compound the matter; to send back the sheep, which were of the value perhaps of fifty pounds, if he would give them thirty pounds in money. He refused to countenance such wickedness by the remotest implication, and sent them away to enjoy all their plunder.
Theoretically, perhaps no seizures are unjust when no fraud is practised by the landlord, because persons who intrust their property on the premises of another are supposed to know the risk, and voluntarily to undertake it. But in practice, this risk is often not thought of, and not known. Besides, mere justice is not the only thing which a landlord has to take into account. The authority which requires us to be just requires us to be compassionate and kind. And here, as in many other cases, it may be remarked, that the object of the law in allowing landlords to seize whatever they find was to protect them from fraud, and not to facilitate the oppression of under-tenants and others. If the first tenant has practised no fraud, it seems a violation of the intention of the law to enforce it against those who happen to have intrusted their property in his hands.
UNJUST DEFENDANTS. It does not present a very favourable view of the state of private principle, that there are so many who refuse justice to plaintiffs unless they are compelled to be just by the law. It is indisputable, that a multitude of suits are undertaken in order to obtain property or rights which the defendant knows he ought voluntarily to give up. Such a person is certainly a dishonest man. When the verdict is given against him, I regard him in the light of a convicted robber,—differing from other robbers in the circumstance that he is tried at nisi prius instead of the crown bar. For what is the difference between him who takes what is another’s and him who withholds it? This severity of censure applies to some who are sued for damages. A man who, whether by design or inadvertency, has injured another, and will not compensate him unless he is legally compelled to do it, is surely unjust. Yet many of these persons seem to think that injury to property, or person, or character, entails no duty to make reparation except it be enforced. Why, the law does not create this duty, it only compels us to fulfil it. If the minds of such persons were under the influence of integrity, they would pay such debts without compulsion. This subject is one among the many upon which public opinion needs to be aroused and to be rectified. When our estimates of moral character are adjusted to individual probity of principle, some of those who now pass in society as creditable persons will be placed at the same point on the scale of morality as many of those who are consigned to a jail.
EXTORTION. It is a very common thing for a creditor who cannot obtain payment from the person who owes him money, to practise a species of extortion upon his relations or friends. The man perhaps is insolvent and unable to pay, and the creditor threatens to imprison him in order to induce his friends to pay the money rather than allow him to be immured in a jail. This is not honest. Why should a person be deprived of his property because he has a regard for the reputation and comfort of another man? It will be said that the debtor’s friends pay voluntarily; but it in only with that sort of willingness with which a traveller gives his purse to a footpad, rather than be violently assaulted or perhaps killed. Both the footpad and the creditor are extortioners,—one obtains money by threatening mischief to the person, and the other by threatening pain to the mind. We do not say that their actions are equal in flagitiousness, but we say that both are criminal. It is said, that after the death of Sheridan, and when a number of men of rank were assembled to attend his funeral, a person elegantly dressed, and stating himself to be a relation of the deceased, entered the chamber of death. He urgently entreated to be allowed to view the face of his departed friend, and the coffin-lid was unscrewed. The stranger pulled a warrant out of his pocket, and arrested the body. It was probably a concerted scheme to obtain a sum (which it is supposed was five hundred pounds) that had been owing by the deceased. The creditor doubtless expected that a number of men of fortune would be present, who would prefer losing five hundred pounds to suffering the remains of their friend to be consigned to the police. The extortioner was successful: it is said that Lord Sidmouth and another gentleman paid the money. Was this creditor an honest man? If courts of equity had existed adapted to such cases, and the man were prosecuted, the consciences of a jury would surely have impelled them to send him to Newgate.
SLAVES. If a person left, me an estate in Virginia or the West Indies, with a hundred slaves, the law of the land allows me to keep possession of both; the moral law does not. I should therefore hold myself imperatively obliged to give these persons their liberty. I do not say that I would manumit them all the next day; but if I deferred their liberation, it ought to be for their sakes, not my own; just as if I had a thousand pounds for a minor, my motive in withholding it from him would be exclusively his own advantage. Some persons who perceive the flagitiousness of slavery retain slaves. Much forbearance of thought and language should be observed towards the man in whose mind perhaps there is a strong conflict between conscience and the difficulty or loss which might attend a regard to its dictates. I have met with a feeling and benevolent person who owned several hundred slaves, and who, I believe, secretly lamented his own situation. I would be slow in censuring such a man, and yet it ought not to be concealed, that if he complied with the requisitions of the moral law, he would at least hasten to prepare them for emancipation. To endeavour to extricate one’s self from the difficulty by selling the slaves were self-imposition. A man may as well keep them in bondage himself as sell them to another who would keep them in it. A narrative has appeared in print of the conduct of a gentleman to whom a number of slaves had been bequeathed, and who acted towards them upon the principles which rectitude requires. He conveyed them to some other country, educated some, procured employment for others, and acted as a Christian towards all.
Upon similar grounds, an upright man should not accept a present of a hundred pounds from a person who had not paid his debts, nor become his legatee. If his money were not rightfully his, he cannot give it; if it be rightfully his creditors’, it cannot be mine.
PRIVATEERS. Although familiarity with war occasions many obliquities in the moral nations of a people, yet the silent verdict of public opinion is, I think, against the rectitude of privateering. It is not regarded as creditable and virtuous; and this public disapprobation appears to be on the increase. Considerable exertion at least has been made on the part of the American government to abolish it. To this private plunderer himself I do not talk of the obligations of morality; he has many lessons of virtue to learn before he will be likely to listen to such virtue as it is the object of these pages to recommend: but to him who perceives the flagitiousness of the practice, I would urge the consideration that he ought not to receive the plunder of a privateer even at second hand. If a man ought not to be the legatee of a bankrupt, he ought not to be the legatee of him who gained his money by privateering. Yet it is to be feared that many who would not fit out a privateer would accept the money which the owners had stolen. If it be stolen it is not theirs to give; and what one has no right to give another has no right to accept.
During one of our wars with France, a gentleman who entertained such views of integrity as these was partner in a merchant vessel, and in spite of his representations the other owners resolved to fit her out as a privateer. They did so, and she happened to capture several vessels. This gentleman received from time to time his share of the prizes, and laid it by; till at the conclusion of the war it had amounted to a considerable sum. What was to be done with the money? He felt that as an upright man he could not retain the money; and he accordingly went to France, advertised for the owners of the captured vessels, and returned to them the amount. Such conduct, instead of being a matter for good men to admire, and for men of loose morality to regard as needless scrupulosity, ought, when such circumstances arise, to be an ordinary occurrence. I do not relate the fact because. I think it entitles the party to any extraordinary praise. He was honest; and honesty was his duty. The praise, if praise be due, consists in this,—that he was upright where most men would have been unjust. Similar integrity upon parallel subjects may often be exhibited again: upon privateering it cannot often be repeated; for when the virtue of the public is great enough to make such integrity frequent, it will be great enough to frown privateering from the world.
At the time of war with the Dutch, about forty years ago, an English merchant vessel captured a Dutch Indiaman. It happened that one of the owners of the merchantman was one of the society of Friends or Quakers, This society, as it objects to war, does not permit its members to share in such a manner in the profits of war. However, this person, when he heard of the capture, ensured his share of the prize. The vessel could not be brought into port, and he received of the underwriters eighteen hundred pounds. To have retained this money would have been equivalent to quitting the society; so be gave it to his friends to dispose of it as justice might appear to prescribe. The state of public affairs on the Continent did not allow the trustees immediately to take any active measures to discover the owners of the captured vessel. The money therefore was allowed to accumulate. At the termination of the war with France the circumstances of the case were repeatedly published in the Dutch journals, and the full amount of every claim that has been clearly made out has been paid by the trustees.
CONFISCATIONS. I do not know whether the history of confiscations affords any examples of persons who refused to accept the confiscated property. Yet, when it is considered under what circumstances these seizures are frequently made—of revolution, and civil war, and the like, when the vindictive passions overpower the claims of justice and humanity, it cannot be doubted that the acceptance of confiscated property has sometimes been an act irreconcilable with integrity. Look, for example, at the confiscations of the French Revolution. The government which at the moment held the reins doubtless sanctioned the appropriation of the property which they seized;’ and in so far the acceptance was legal. But that surely is not sufficient. Let an upright man suppose himself to be the neighbour of another, who, with his family, enjoys the comforts of a paternal estate. In the distractions of political turbulence this neighbour is carried off and banished, and the estate is seized by order of the government. Would such a man accept this estate when the government offered it, without inquiry or consideration? Would he sit down in the warm comforts of plenty, while his neighbour was wandering destitute perhaps in another land, and while his family were in sorrow and in want? Would he not consider whether the confiscation was consistent with justice and rectitude,—and whether if it were right with respect to the man, it was right with respect to his children and his wife, who perhaps did not participate in his offences. It may serve to give clearness to our perceptions to consider, that if Louis XVII., had been restored to the throne soon after his father’s death, it is probable that many of the emigrants would have been reinstated in their possessions. Louis’s restoration, might have been the result of some intrigue, or of a battle. Do, then, the obligations of mankind as to enjoying the property of another depend on such circumstances as battles and intrigues? If the returning emigrant would have rightfully repossessed his estate if the battle was successful, can the present occupier rightfully possess it if the battle is not successful? Is the result of a political manœuvre a proper rule to guide a man’s conscience in retaining or giving up the houses and lands of his neighbours? Politicians and those who profit by confiscations may be little influenced by considerations like these; but there are other men who, I think, will perceive that they are important, and why though confiscated property may never be offered to them, will be able to apply the principles which these considerations illustrate to their own conduct in other affairs.
It is worthy of observation, that in our own country, “of all the persons who were enriched by the spoils of the religious houses, there was not one who suffered for his opinions during the persecution.” How can this be accounted for, except upon the presumption that those who were so willing to accept these spoils were not remarkable for their fidelity to religion?
PUBLIC MONEY. Some writers on political affairs declaim much against sinecures and “places;” not always remembering that these things may be only modes of paying, and of justly paying, the servants or the public. It would no doubt be preferable that he who is rewarded for serving the public, should be rewarded avowedly as such, and not by the salary of a nominal office which is always filled, whether the receiver deserves the money or not. Such a mode of remuneration would be more reasonable in itself, and more satisfactory to the people. However, if public men deserve the money they receive, the name by which the salary is designated is not of much concern. The great point is the desert. That this ought to be a great point with a government there can be no doubt, and it in indeed upon governments that writers are wont to urge the obligation.
But our business is with the receivers. May a person morally appropriate to his own use any amount of money which a government chooses to give him? No. Then, when the public money is offered to any man, he is bound in conscience to consider whether he is in equity entitled to it or not. If, not being entitled, he accepts it, he is not an upright man. For who gives it to him? The government: that is, the trustee for the public. A government is in a situation not dissimilar to that of a trustee for a minor. It has no right to dispose of the public property according to its own will whatever it expends, except with a view to the public advantage, is to be regarded as so much fraud; and it is quite manifest that if the government has no right to give, the private person can have no right to receive. I know of no exception to the application of these remarks, except where the public have expressly delivered up a certain amount of revenue to be applied according to the inclination of the governing power.
Now the equity of an individual’s claims upon the public property must be founded upon his services to the public: not upon his services to a minister, not upon the partiality of a prince, but upon services actually performed or performing for the public.6 The degree in which familiarity with an ill custom diminishes our estimate of its viciousness is wonderful. If you propose to a man to come to some understanding with a guardian, by which he shall get a hundred pounds out of a ward’s estate, he starts from you with abhorrence. Yet that same man, if a minister should offer him ten times as much of the public property, puts it complacently and thankfully into his pocket. Is this consistency? Is it uprightness?
In estimating the recompense to which public men are entitled, let the principles by all means be liberal. Let them be well paid: but let the money be paid, not given; let it be the discharge of a debt, not the making of a present. And were I a servant of the public, I should not assume, as of course, that whatever remuneration the government was disposed to give, it would be right for me to receive. I should think myself obliged to consider for myself and without affecting a trifling scrupulousness, I could not with integrity receive two thousand a year, if I knew that I was handsomely remunerated by one. These principles of conduct do not appear to lose their application in respect of fixed salaries or perquisites that are attached to offices. If a man cannot uprightly take two thousand pounds when he knows he is entitled to but one, it cannot be made right by the circumstance that others have taken it before him, or that all take it who accept the office. The income may be exorbitantly disproportioned, not merely to the labour of the office, but to the total services of the individual. Nor, I think, do these principles lose their application, even when, as in this country, a sum is voted by the legislature for the civil list, and when it is out of this voted sum that the salaries are paid. You say—the representatives of the people give the individual the money. Very well,—yet even this may be true in theory rather than in fact. But who pretends that, when the votes for the civil list are made in the House of Commons, its members actually consider whether the individuals to whom the money will be distributed are in equity entitled to it or not?—The question is very simple at last,—whether a person may virtuously accept the money of the public, without having rendered proportionate services to the public? There have been examples of persons who have voluntarily declined to receive the whole of the sums allotted to them by the government; and when these sums were manifestly disproportionate to the claims of the parties, or unreasonable when compared with the privations of the people, such sacrifices approve themselves to the feelings and consciences of the public. We feel that they are just and right; and this feeling outweighs in authority a hundred arguments by which men may attempt to defend themselves in the contrary practice.
Those large salaries which are given by way of “supporting the dignity of public functionaries” are not I think reconcileable with propriety nor dictated by necessity. At any rate, there must be some sorrowful want of purity in political affairs, if an ambassador or a prime minister is indebted for any part of his efficiency to these dignities and splendours. If the necessity for them is not imaginary, it ought to be; and it may be doubted whether, even now, a minister of integrity who could not afford the customary splendours of his office would not possess as much weight in his own country and among other nations as if he were surrounded with magnificence. Who feels disrespect towards the great officers of the American government? And yet their salaries are incomparably smaller than those of some of the inferior ministers in Europe.
INSURANCE. It is very possible for a man to act dishonestly every day, and yet never to defraud another of a shilling. A merchant who conducts his business partly or wholly with borrowed capital is not honest if he endangers the loss of an amount of property which, if lost, would disable him from paying his debts. He who possesses a thousand pounds of his own, and borrows a thousand of some one else, cannot virtuously speculate so extensively as that, if his prospects should be disappointed, he would lose twelve hundred, The speculation is dishonest, whether it succeeds or not: it is risking other men’s property without their consent. Under similar circumstances it is unjust not to ensure. Perhaps the majority of unensured traders, if their houses and goods were burnt, would be unable to pay their creditors. The injustice consists, not in the actual loss which may be inflicted (for whether a fire happens or not, the injustice is the same), but in endangering the infliction of the loss. There are but two ways in which, under such circumstances, the claims of rectitude can be satisfied—one is by not endangering the property, and the other by telling its actual owner that it will be endangered, and leaving him to incur the risk or not as he pleases.
“Those who hold the property of others are not warranted, on the principles of justice, in neglecting to inform themselves from time to time of the real situation of their affairs.”7 This enforces the doctrines which we have delivered. It asserts that injustice attaches to not investigating; and this injustice is often real whether creditors are injured or not.
During the seventeenth century, when religious persecution was very active, some beautiful examples of integrity were offered by its victims. It was common for officers to seize the property of conscientious and good men, and sometimes to plunder them. with such relentless barbarity as scarcely to leave them the common utensils of a kitchen. These persons sometimes had the property of others on their premises; and when they heard that the officers were likely to make a seizure, industriously removed from their premises all property but their own. At one period, a number of traders in the country who had made purchases in the London markets found that their plunderers were likely to disable them from paying for their purchases, and they requested the merchants to take back, and the merchants did take back, their goods. In passing, I would remark, that the readers of mere general history only are very imperfectly acquainted with the extent to which persecution on account of religion has been practised in these kingdoms, ages since Protestantism became the religion of the state. A competent acquaintance with this species of history is of incomparably greater value than much of the manner with which historians are wont to fill their pages.
IMPROVEMENTS ON ESTATES. There are some circumstances in which the occupier of lands or houses, who has increased their value by erections or other improvements, cannot in justice be compelled to pay for the increased value if he purchases the property. A man purchases the lease of an estate, and has reason to expect from the youth and health of “the lives,” that he may retain possession of it for thirty or forty years. In consequence of this expectation, he makes many additions to the buildings; and by other modes of improvement considerably increases the value of the estate. It however happens that in the course of two or three years all the lives drop. The land-owner, when the person applies to him for a new lease, demands payment for all the improvements. This I say is not just. It will be replied, that all parties knew and voluntarily undertook the risk: so they did, and if the event had approached to the ordinary average of such risks, the owner would act rightly in demanding the increased value. But it does not; and this is the circumstance which would make an upright man decline to avail himself of his advantages. Yet, if any one critically disputes the “justice” of the demand, I give up the word, and say that it is not considerate, and kind, and benevolent; in a word, it is not Christian. It is no light calamity upon such a tenant to be obliged to unexpectedly to repurchase a lease; and to add to this calamity a demand which the common feelings of mankind would condemn cannot be the act of a good man. Who doubts whether, within the last fourteen years, it has not been the duty of many land-owners to return a portion of their rents? The duty is the same in one case as in the other; and it is founded on the same principles in both. To say that other persons would be willing to pay the present value of the property, would not affect the question of morality: because, to sell it to another for that value when the former tenant was desirous of repurchasing would not diminish the unkindness to him.
SETTLEMENTS. It is not an infrequent occurrence, when a merchant or other person becomes insolvent, that the creditors unexpectedly find the estate is chargeable with a large settlement on the wife. There is a consideration connected with this which in a greater degree involves integrity of character than perhaps is often supposed. Men in business obtain credit from others in consequence of the opinions which others form of their character and property. The latter, if it be not the greater foundation of credit, is a great one. A person lives then at the rate of a thousand a year; he maintains a respectable establishment, and diffuses over all its parts indications of property. These appearances are relied upon by other men: they think they may safely intrust him, and they do intrust him, with goods or money; until, when his insolvency is suddenly announced, they are surprised and alarmed to find that five hundred a year is settled on his wife. Now this person has induced others to confide their property to him by holding out fallacious appearances. He has in reality deceived them; and the deception is as real, though it may not be as palpable, as if he had deluded them with verbal falsehoods. He has been acting a continued untruth. Perhaps such a man will say that he never denied that the greater part of his apparent property was settled on his wife. This may be true; but when his neighbour came to him to lodge five or six hundred pounds in his hands; when he was conscious that this neighbour’s confidence was founded upon the belief that his apparent property was really his own; when there was reason to apprehend, that if his neighbour had known his actual circumstances he would have hesitated in intrusting him with the money, then he does really and practically deceive his neighbour, and it is not a sufficient justification to say that he has uttered no untruth. The reader will observe that the case is very different from that of a person who conducts his business with borrowed money. This person must annually pay the income of the money to the lender. He does not expend it on his own establishment, and consequently does not hold out the same fallacious appearances. Some profligate spendthrifts take a house, bur, elegant furniture, and keep a handsome equipage, in order by these appearances to deceive and defraud traders. No man doubts whether these persons act criminally. How then can he be innocent who knowingly practises a deception similar in kind though varying in degree?
HOUSES OF INFAMY. If it were not that a want of virtue is so common among men, we should wonder at the coolness with which some persons of decent reputation are content to let their houses to persons of abandoned character, and to put periodically into their pockets the profits of infamy. Sophisms may easily be invented to palliate the conduct, but nothing can make it right. Such a landlord knows perfectly to what purpos.es his house will be devoted, and knows that he shall receive the wages, not perhaps of his own iniquity, but still the wages of iniquity. He is almost a partaker with them in their sins. If I were to sell a man arsenic or a pistol, knowing that the buyer wanted it to commit murder, should I not be a bad man? If I let a man a house, knowing that the renter wants it for purposes of wickedness, am I an innocent man?—Not that it is to be affirmed that no one may receive ill-gotten money. A grocer may sell a pound of sugar to a woman though he knows she is upon the town. But if we cannot specify the point at which a lawful degree of participation terminates, we can determine, respecting some degrees of participation, that they are unlawful. To the majority of such offenders against the moral law these arguments may be urged in vain; there are some of whom we may indulge greater hope. Respectable public brewers are in the habit of purchasing beer-houses in order that they may supply the publicans with their porter. Some of these houses are notoriously the resort of the most abandoned of mankind; the daily scenes of riot, and drunkenness, and of the most filthy debauchery. Yet these houses are purchased by brewers,—perhaps there in a competition among them for the premises; they put in a tenant of their own, supply him with beer, and regularly receive the profits of this excess of wickedness. Is there no such obligation as that of abstaining even from the appearance of evil? Is there no such thing as guilt without a personal participation in it? All pleas such as that, as one man did not supply such a house another would, are vain subterfuges. Upon such reasoning, you might rob a traveller on the road, if you knew that at the next turning a footpad was waiting to plunder him if you did not. Selling such houses to be occupied as before would be like selling slaves because you thought it criminal to keep them in bondage. The obligation to discountenance wickedness rests upon him who possesses the power. “To him who knoweth to do good and doeth it not, to him it is sin.” To retain our virtue may in such caries cost us something, but he who values virtue at its worth will not think that he retains it at a dear rate.
LITERARY PROPERTY. Upon similar grounds there are some of the profits of the press which a good man cannot accept. There are some periodical works and some newspapers from which, if he were offered an annual income, he would feel himself bound to reject it. Suppose there is a newspaper which is lucrative because it gratifies a vicious taste for slander or indecency,—or suppose there is a magazine of which the profits result from the attraction of irreligious or licentious articles,—I would not put into my pocket, every quarter of a year, the money which was gained by vitiating mankind. In all such cases, there is one sort of obligation which applies with great force,—the obligation not to discourage rectitude by our example. Upon this ground a man of virtue would hesitate even to contribute an article to such a publication, lest they who knew he was a contributor should think they had his example to justify improprieties of their own.
REWARDS. A person loses his pocket-book containing fifty pounds, and offers ten pounds to the finder if he will restore it. The finder ought not to demand the reward. It implies surely some imputation upon a man’s integrity, where he accepts payment for being honest. For, for why else is he paid! If he retains the property he is manifestly fraudulent. To be paid for giving it up is to be paid for not committing fraud. The loser offers the reward in order to overpower the temptation to dishonesty. To accept the reward is therefore tacitly to acknowledge that you would have been dishonest if it had not been offered. This certainly in not maintaining an integrity that is “above suspicion.” It will be said that the reward is offered voluntarily. This, in proper language, is not true. Two evils are presented to the loser, of which he is compelled to choose one. If men were honest, he would not offer the reward; he would make it known that he had lost his pocket-book, and the finder, if a finder there were, would restore it. The offered ten pounds is a tax which is imposed upon him by the want of uprightness in mankind, and he who demands the money actively promotes the imposition. The very word reward carries with it its own reprobation. As a reward, the man of integrity would receive nothing. If the loser requested it, he might, if he needed it, accept a donation; but he would let it be understood this be accepted a present, not that he received a debt.
Perhaps examples enough, or more than enough, have been accumulated to illustrate this class of obligations.—Many appeared needful, because it is a class which is deplorably neglected in practice. So strong is the temptation to think that we may rightfully possess whatever the law assigns to us,—so insinuating is the notion, upon subjects of property, that whatever the law does not punish we may rightfully do, that there is little danger of supplying too many motives to habitual discrimination of our duties, and to habitual purity of conduct. Let the reader especially remember, that the examples which are offered are not all of them selected on account of their individual importance, but rather as illustrations of the general principle. A man may meet with a hundred circumstances in life to which none of these examples are relevant; but I think he will not have much difficulty in estimating the principles which they illustrate. And this induces the observation, that although several of these examples are taken from British law or British customs, they do not, on that account, lose their applicability where these laws and customs do not obtain. If this book should ever be read in a foreign land, or if it should be read in this land when public institutions or the tenor of men’s conduct shall be changed, the principles of its morality will, nevertheless, be applicable to the affairs of life.
1 See the 3d Essay.
3 “Where any have injured others in their property, the greatest frugality should be observed by themselves and their families; and although they may have a legal discharge from their creditors, both equity and our Christian profession demand that none when they have it in their power should rest satisfied until a just restitution be made to those who have suffered by them.”
“And it is the judgment or this meeting, that monthly and other meetings ought not to receive collections or bequests for the use of the poor or any other services of the Society, of persons who have fallen short in the payment of their just debts, though legally discharged by their creditors: for until such persons have paid the deficiency, their possessions cannot in equity be considered as their own.”—Official Documents of the Yearly Meeting of the Society of Friends.
4 Mor. and Pol. Phil. b. 3. p.1, c. 23.
5 “Southey’s Book of the Church, vol. ii.
6 It is not necessary that these services should have been personal. The widow or son of a man who had been inadequately remunerated during his life may very properly accept a competent pension from the state.
7 Official Documents of the Yearly Meeting of the Society of Friends: 1826.
All Sub-Works of Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).:
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- Preface to the American Edition.
- Introductory Notices.
- Moral Obligations.
- Standard of Right and Wrong.
- Subordinate Standards of Right and Wrong.
- Standard of Right and Wrong Footnotes.
- Collateral Observations.
- Immediate Communication of the Will of God.
- Immediate Communication of the Will of God Footnotes.