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lives. It may be difficult to analyze it into its elements, still it is irresistible in its conviction.
This moral feeling, in a case like the one suggested, points at once to the motive or consideration for which B. parted with his property; to the idea or theory of giving and receiving equivalents. And it is argued that if the vendor, from the fact of being better informed, by extraneous circumstances, as to the true value of the thing sold, than the purchaser — or from any other cause, should knowingly obtain more for it than it is worth -- or if, for want of equality of knowledge or accident, the buyer should get it for too little — in either case, one party has not received the equivalent which was the motive or consideration of the contract. As a matter of course, if this argument is sound - if it is sustained by reason and the dictates of morality-a contract made under circumstances of superior advantage to one or the other of the contracting parties, should be rescinded for want of equality
Now. the question naturally occurs, whether it is possible, in the nature of things, to preserve exact equality in knowledge or value in the making of contracts ?
It certainly would be a bold proposition to affirm that an individual cannot make an advantageous bargain without incurring the reproach of dishonesty. It would shock common sense to affirm that our code of morals prohibits an individual from exercising his sagacity and foresight in the making of agreements with his neighbor. While it is true that “ knowledge is power,” the experience of life teaches us that knowledge is the most useful capital employed in any business.
By common consent, the skilful and industrious are allowed the full benefit and enjoyment of that necessary superiority over their neighbors, which welldirected industry must always give. And it is fair to presume that no one will contend that it is essential to a fair bargain, or the making of a contract on principles of perfect equality, that the parties in respect to the subject matter should be required mutually to disclose their respective plans or anticipated profits.
AH will allow that the hope of gain, leads to enterprise and activity, in the various pursuits and business of men. And it may be stated as an undeniable general proposition—subject, of course, io many exceptions — that the profits of every transaction, when not dependent on fortuitous circumstances, arise from the superiority of one party to the other, in some material knowledge in respect to the subject matter of the contract. This feature becomes more apparent as we extend our inquiries, and trace the analogy in different directions, of cases of the most opposite moral character — from the arts of deliberate knavery, to the fairest gains of skill and industry. Now, it is true, that the law of contracts, as it is ontlad in England and the United States, recognizes as its leading principles, faith must be preserved by the contracting parties towards each other; fraud or art on either side, affords good ground for the interference of the of the law, to protect or relieve the injured party.
He who, in his social as well as business relations with his fellow-man, follows the golden precept — “ Whatsoever ye would that men should do to you, do ye even so to them” — has a sure guide for his conduct in every exigency of life. He will do justice and do equity. For a people following this rule, human laws would be unnecessary; they would be “a law unto themselves.” But we must take the world as it is, and deal with men as we find them. And although the reflection is a humiliating one, it is nevertheless a reality, that however men may shrink from deliberate and bare-faced knavery, they are too prone to indulge in mental sophistry; too prone to argue themselves into a compliance with their secret inclinations; and thus cheat themselves out of their own honesty.
The law is designed to protect the innocent and weak from the machinations and corrupt designs of those who disregard the great precepts of nature and morality. And our present inquiry is, to ascertain whether existing laws, in regard to contracts, are adequate to correct the mischiefs they are designed to pre- . vent. We are in search of a principle which, in the making of contracts, shall unite morality and law and make a just and invariable rule. We are in search of a principle, as the basis of all contracts, which will not admit of apparently opposite and incongruous application. We are in search of a principle which, without shocking our notions of morality, will afford a safe, and, at the same time, just rule, by which we may determine what extraneous facts, exclusively within the power and knowledge of one party, shall render a contract void. We are in search of a principle that shall afford an unerring and just rule by which our Courts, in order to prevent inequality, may determine when, and under what circumstances, one party to a contract is or is not bound in law to disclose to the other the facts or motives which led to it. In short, we are in search of a principle which will establish uniformity – which may serve to elevate temporal laws to the dignity and equality of unerring justice.
This is by no means a question of pure speculation. If a uniforin and inflexible rule can be discovered, it will afford indubitable testimony that men are capable of understanding and practising exact justice. And it will effectually relieve our Courts from the reproach, to which they are now exposed, of applying di. rectly opposite rules to the same questions, as it may chance to arise in a Court of law and equity.
In order that the inconsistency of which we complain, may be made more apparent to the general reader, it may be well to state a few of the general rules touching the matter of contracts, as they have been, settled in Great Britain and the United States — two of the greatest commercial nations in the world.
It should be remarked, in this connection, that however diversified the question may have been presented, and however varied in feature - whether it has arisen from extraneous facts not known to one of the parties — concealment in sales, or inadequacy of price — still, the question is really the same. The rule of the common law, as it has long been considered settled in England,
and as it is now fully recognized in the United States, declares, in unequivocal terms, that a buyer is not bound to communicate his knowledge to the seller, of extraneous facts, which influence the price of the commodity, and which was exclusively within the knowledge of the buyer. And the only guard against palpable fraud, or undue advantage, which is thrown around the innocent and unwary, is found in the declaration, “that each party must take care not to say or do any thing tending to impose upon the other.”
It is also true (though common law Courts have not expressly said so,) that the rule, as stated above, was undoubtedly designed to apply to cases where the means of knowledge are equally accessible to both parties. But the text of the common law is without qualification. Writers
the law of contracts, both in England and America, state the doctrine in such broad and general terms, that its application to particular cases, without modification, not unfrequently causes a shudder, and our feelings revolt at the apparent injustice and utter inequality of the law.
It is laid down as one of the fundamental precepts of the common law as a settled rule, which is beyond the reach of argument — that the knowledge by the buyer of any fact materially enhancing the value of property- and the known ignorance of it by the seller at the time of sale — will not affect the validity of the sale. While this doctrine is enunciated and enforced in this country, by a Judge * distinguished for learning, correct judgment, clear perceptions of moral duty, and great purity of character -- another, t equally distinguished, maintains that “ not only good morals, but the common law, requires good faith ; and that every man, in his contracts, should act with common honesty, without defrauding his neighbors by false allegations or fraudulent concealments.” The principle, which these apparently discordant rules are designed to establish, is the same, undoubtedly, in both cases. The end, sought to be attained, is to preserve good equality and good faith in contracts. It is to hold in check the over-reaching and dishonest. It is to afford security to the fair dealer.
lf, in reply, it is said, there is a distinction in these and other similar cases, when the law applies apparently different rules, let us inquire where shall the line of distinction be drawn? If these rules are necessary paris of a great system, and essential to its perfection, it would seem they could be made to harnonize in their application. That they are discordant in theory, cannot be successfully denied. How, then, can they be made to harmonize in their application? This cannot be done, unless it be admitted that one is the general principle and the other the exception. If this position be assumed, it leads at once to the conclusion, that the apparent contradictions to natural justice in our civil jurisprudence, is the result of policy or necessity; and that, for wise and inscrutable reasons, the law permits what does not sanction.
* Chief Justice Marshall.–2. Wheaton 195. † Chief Justice Parsons.-4. Mass. 489.
If this conclusion prevails, it becomes important to every one, whose conduct is guided by moral precepts, to know what are the limits of these opposing rules of justice and policy. It is necessary to understand this, with a view to private conduct and also to avoid infractions of the law.
(To be Continued.)
ART. IV.-AGRICULTURE, AND THE INFLUENCE OF AGRICULTURE ON
MANUFACTURES. THE EFFECTS OF COMMERCE AND MANUFACTURES UPON AGRICULTURE IN EUROPE,
JANUFACTURES IN MIDDLESEX, MASSACHUSETTS.-NUMBER OF CATTLE, HORSES, AND SHEEP, TO THE SQUARE MILE, IN ENGLAND AND WALES.-RAILROADS IN
The following address, delivered by E. H. DERBY, Esq., before the Middlesex County, (Massachusetts,) Agricultural Society, we have selected from the December number of the Merchant's Magazine.
Although designed for farmers of Middlesex county, yet, this address is fraught with instruction to the western agriculturalist; and contains many valuable facts, which we commend to the consideration of our readers. From this, we learn, that the county of Middlesex annually produces manufactures amounting to $23,000,000. An amount more than double the average exportation of breadstuffs from the whole country; and equal in value to about one half the whole cotton crop of the United States. We are further informed, that the lines of rail road already constructed, and chartered, exceed two hundred miles; and that the population of the county live within an average distance of one mile from the iron-way.
We trust that such facts as these, will induce the people of the South and West, to inquire into the causes which conspire to concentrate the wealth of the country in New England:
“ AGRICULTURE has become essential to life. The forest, the lake, and the ocean, cannot sustain the increasing family of man. Population declines with a declining cultivation, and nations have ceased to be with the extinction of their agriculture.
“When harvests are exuberant, joy and health follow in their train; but let delusive prosperity draw industry from agriculture; let an insidious disease attack one of its important products; let an insect, or a parasite, fasten on a single esculent, and mark the effect upon commerce and human life. Upon such an event all business is deranged; the commercial marine of the world proves itself unequal to the crisis; sloops of war and frigates become carriers of grain ; warehouses, canals, railroads, and ports, prove insufficient to the exigency; masses of specie flow from the guarded treasuries of the old world to the rude cabins of the prairies; manufactures and public improvements stop in their course; famine and pestilence invade provinces and States; and the pale survivors, reckless of those ties which bind man to his birth-place, brave storms and shipwreck, sickness and death, on the route to new and untried regions.
“A glance at such events, which the present year has witnessed, must impress us with the vast importance of agriculture, both as an occupation and a science.
“ Agriculture, in ancient times, was esteemed and honored. In classic Greece and Rome it was the theme of the popular poets of the age, and was not deemed unworthy of distinguished warriors and statesmen. We read of Cicero at his Tusculan villa, of Cato at his farm, of Cincinnatus leaving his plough to command the armies of the republic; while the great naturalist, Pliny, in his beautiful letters, prides himself on his vineyards.
“ The overflow of the Nile, the fertilizer of Egypt, has been celebrated for centuries as the great festival of the country; and in that “ central flowery land,” which claims such remote antiquity, the sovereign of three hundred millions, the son of heaven, whose person is too sacred to be seen, whose imperial despatch is received amid burning incense and prostration, and in whose presence no one dares speak but in a whisper,' annually exhibits himself to his subjects, holding a plough in honor of agriculture.
“ In England, too, whose nobles shrink from all connection with trade, agriculture is highly honored. Earls, dukes, and princes, preside at agricultural festivals, compete for prizes, and do not disdain to write treatises on the culture of roots, the rotation of crops, and manufacture of composts Sir Robert Peel, the great statesman of the age, is one day bearing down by his eloquence the opposition of Parliament to his vigorous and enlightened policy, and another discussing the prospects of agriculture among the farmers of Tamworth.
“It is, too, with mingled pleasure and pride that we recur to the fact, that the hero and statesman, who led the armies of our revolution, was himself a practical farmer. Amid all the excitement, harassing duties, and embarrassments of a protracted war, he directed by letters the operations of his farm, and finally retired from the highest position to which talent and patriotism could aspire, followed by the love of his countrymen, to devote to agriculture the close of his life; and it is a little remarkable that his example has been followed by nearly all who have succeeded to the office of President.
“In view of these facts, may we not ask, has agriculture enjoyed in New England the prominence and popularity to which it may well aspire; and is the position of the farmer, lord of the soil here, and but a tenant in the old world, duly appreciated ?
“ It is obvious to the reflecting mind that the farmer has been affected by depressing influences, but is it not as apparent that they are ceasing to operate?