Page images
PDF
EPUB

made; and if it appears convenient that part of the required revenues should be raised by per-centages on bequeathed property, no ethical objection can be urged.

Subject to this qualification, we see that the foregoing deductions from the law of equal freedom are justified by their correspondence with legislative provisions; and that there has been a progressive increase in the correspondence between the ethical and the legal dicta. The right of gift, not everywhere admitted in old times, has been in later times tacitly recognized by Acts which limit it to property that is equitably a man's own. The right of bequest, scarcely existing in early social stages, has been established more and more in proportion as the freedom of the individual has become greater; and has reached the fullest legislative assertion under our own free institutions and the American ones derived from them. Directions for the uses. of property left to immature children, which we have seen to be ethically warranted, have become authorized by law. And such restrictions on the power of ordering what shall be done with property otherwise bequeathed, as are embodied in laws of mortmain and the like, harmonize with ethical inferences,

CHAPTER XV.

THE RIGHTS OF FREE EXCHANGE AND FREE CONTRACT.

§ 69. What was said at the outset of the last chapter concerning the right of gift, may be said here, with change of terms, concerning the right of exchange; for exchange may not unfitly be regarded as a mutual cancelling of gifts. Probably most readers will think this a fanciful interpretation of it; but, contrariwise, it is an interpretation forced on us by inspection of the facts. For whereas barter is not universally understood among the lowest tribes, the making of presents is universally understood; and where the making of presents becomes habitual, there grows up the conception that equivalent presents should be made in return. Numerous books of travel exemplify this conception. Evidently, then, from the exchange of equivalent presents, there may readily grow up a constant practice of exchange from which the idea of presents has dropped out.

But without making the right of exchange a corollary from the right of gift, it is clear that the one like the other is included in the right of property ; since ownership of a thing is incomplete if it may not be transferred in place of another thing received.

Further, the right of exchange may be asserted as a direct deduction from the law of equal freedom. For of the two who voluntarily make an exchange, neither assumes greater liberty of action than the other, and fellow men are uninterfered with-remain possessed of just as much liberty of action as before. Though completion of the exchange may shut out sundry of them from advantageous transactions, yet as their abilities to enter into such transactions depended wholly on the assent of another man, they cannot be included in their normal spheres of action. These continue what they would have been had the two persons who have bargained never existed.

Obvious as is the right of exchange, recognition of it in law has arisen but slowly ; and, in most parts of the world, is still far from complete. Among the Polynesian races, exchange is variously interfered with by the chiefs: here, foreign trade being monopolized by them; there, prices fixed by them; and in other places the length of a day's work. Similarly in Africa. The right of pre-emption in trade is possessed by chiefs among Bechuanas and Inland Negroes; and there is no business without royal assent. In Ashanti only the king and great men can trade ; and in Shoa certain choice goods can be bought only by the king. The Congo people, Dahomans, and Fulahs, have commercial chiefs who regulate buying and selling. Kindred limitations existed among the Hebrews and Phænicians, as also among the Ancient Mexicans and Central Americans. At the present time the men of some South American tribes, as the Patagonians and Mundrucus, have to obtain authority from chiefs before they can trade. Like facts, presented by the European nations, down from the time when Diocletian fixed prices and wages, need not be detailed. All it concerns us to note is that interferences with exchange have diminished as civilization has advanced. They have decreased, and in some cases have disappeared from the transactions between members of the same society; and have partially disappeared later from the transactions between members of different societies. Moreover with this, as with other rights, the interferences have become smallest where the development

THE RIGHTS OF FREE EXCHANGE AND FREE CONTRACT.

129

of the industrial type with its concomitant free institutions, has become greatest, namely, among ourselves.

It is worthy of note, however, that the changes which established almost entire freedom of trade in England, were chiefly urged on grounds of policy and not on grounds of equity. Throughout the Anti-Corn-Law agitation little was said about the “right" of free exchange; and at the present time such reprobation as we hear of protectionists, at home and abroad, is vented exclusively against the folly of their policy and not against its inequity. Nor need we feel any surprise at this if we remember that even still the majority of men do not admit that there should be freedom of exchange in respect of work and wages. Blinded by what appear to be their interests, artizans and others tacitly deny the rights of employer and employed to decide how much money shall be given for so much labour. In this instance the law is in advance of the average opinion : it insists that each citizen shall be at liberty to make whatever bargains he pleases for his services; while the great mass of citizens insist that each shall not be at liberty to do this.

$ 70. Of course with the right of free exchange goes the right of free contract: a postponement, now understood now specified, in the completion of an exchange, serving to turn the one into the other.

It is needless to do more than name contracts for services on certain terms; contracts for the uses of houses and lands; contracts for the completion of specified works; contracts for the loan of capital. These are samples of contracts which men voluntarily enter into without aggressing on any others-contracts, therefore, which they have a right to make.

In earlier times interferences with the right of exchange were of course accompanied by interferences with the right of contract. The multitudinous regulations of wages and prices, which century after century encumbered the statute books of civilized peoples, were examples. Decreasing with the decrease of coercive rule, these have, in our days, mostly disappeared. One such gradual change may be instanced as typifying all others—that which usury laws furnish. In sundry cases where but small progress towards free institutions had been made, the taking of interest for money lent was forbidden altogether; as among the Hebrews, as among ourselves in the remote past, and as among the French at the time of the greatest monarchical power. Then, as a qualification, we have the fixing of maximum rates; as in early ages by Cicero for his Roman province; as in England by Henry VIII at 10 per cent., by James I at 8 per cent., by Charles II at 6 per cent., by Anne at 5 per cent.; and as in France by Louis XV at 4 per cent. Finally we have removal of all restrictions, and the leaving of lenders and borrowers to make their own bargains.

While we observe that law has in this case gradually come into correspondence with equity, we may also fitly observe one exceptional case in which the two agree in forbidding a contract. I refer to the moral interdict and the legal interdict against a man's sale of himself into slavery. If we go back to the biological origin of justice, as being the maintenance of that relation between efforts and the products of efforts which is needful for the continuance of life, we see that this relation is suspended by bondage; and that, therefore, the man who agrees to enslave himself on condition of receiving some immediate benefit, traverses that ultimate principle from which social morality grows. Or if we contemplate the case from an immediately ethical point of view, it becomes manifest that since a contract, as framed in conformity with the law of equal freedom, implies that the contracting parties shall severally give what are approximately equivalents, there can be no contract, properly so called, in which the terms

« PreviousContinue »