The Pamphlet Collection of Sir Robert Stout: Volume 4
Lecture XV. Duties of Guardians, Sureties, Jurors, and Arbitrators
Lecture XV. Duties of Guardians, Sureties, Jurors, and Arbitrators.
Guardianship—A duty not to be declined, though its performance is sometimes repaid with ingratitude—The misconduct is often on the part of the Guardians—Examples of both cases—Particular circumstances in which page 85 guardianship may be declined—Duties of Guardians—I They should study and sedulously perform the obligations incumbent on them—Property of Wards not to be misapplied to guardians' own purposes—Coguardians to be vigilantly watched, and checked when acting improperly—Care for the maintenance, education, and setting out in life of the Wards—Duty of Suretyship—Dangers incurred by its performance—These may be lessened by Phrenology—Selfishness of those who decline to become sureties in any case whatever—Precautions under which suretyship should be undertaken—No man ought to bind himself to such an extent as to expose himself to suffer severely, or to become surety for a sanguine and prosperous individual who merely wishes to increase his prosperity—Suretyship for good conduct—Precautions applicable to this—Duties of Jurors—Few men capable of their satisfactory performance—Suggestions for the improvement of Juries—Duties of Arbitrators—Erroneous notions prevalent on this subject—Decisions of "honest men judging according to equity"—Principles of law ought not to be disregarded.
Having discussed the social duties which we owe to the poor and to criminals, I proceed to notice several duties of a more private nature, but which still are strictly social and very important. I refer to the duties of guardianship and surety.
As human life is liable to be cut short at any stage of its progress, there are always existing a considerable number of children who have been deprived, by death, of one or both of their parents; and an obligation devolves on some one or more of the members of society to discharge the duties of guardians towards them. When the children are left totally destitute, the parish is bound to maintain them; and that duty has already been considered under the head of the treatment of the poor. It is, therefore, only children who stand in need of personal guidance, or who inherit property that requires to be protected, whose case we are now to consider. We may be called on to discharge these duties, either by the ties of nature, as being the next of kin, or by being nominated guardians or trustees in a deed of settlement executed by a parent who has committed his property and family to our care.
Many persons do not regard these as moral duties, but merely as discretionary calls, which every one may discharge or decline without blame, according to his own inclination; and there are individuals who recount some half dozen of instances in which trustees and guardians, after having undergone much labour and anxiety, have been rewarded with loss, obloquy, and ingratitude; and who, on the exculpatory strength of these cases, wrap themselves up in impenetrable selfishness, and, during their whole lives, decline to undertake such duties for any human being.
It is impossible to deny, that instances of flagrant ingratitude to guardians have occurred on the part of wards; but these are exceptions to a general rule; and if the practice of declinature were to become general, young orphans would be left as aliens in society, the prey of every designing knave, or be cast on the cold affections of public officers appointed by the state to manage their affairs.
While there are examples of misconduct and ingratitude on the part of wards, there are also, unfortunately, numerous instances of malversation on the part of guardians; and those who are chargeable with this offence are too apt, when called to account, to complain of hardship, and want of just feeling on the part of their wards, as a screen to their own delinquencies. I have known some instances, indeed, but very few, in which children, whose affairs had been managed with integrity, and whose education had been superintended with kindness and discretion, have proved ungrateful; but I have known several flagrant examples of cruel mismanagement by guardians. In one instance, a common soldier who had enlisted and gone to the Peninsular war, left two children, and property yielding about L.70 a-year, under charge of a friend. He was not heard of for a considerable time, and the report became current that he had been killed. The friend put the children into the charity work-house as paupers, and appropriated the rents to his own use. A relative of the soldier, who lived at a distance, at last got tidings of the circumstance, obtained a legal appointment of himself as guardian to the children, took them out of the work-house, prosecuted the false friend, and compelled him to refund the spoils of his treachery.
In another instance, both the father and mother of two female children died, when the eldest of the children was only about three years of age. The father was survived by a brother, and also by a friend, both of whom he named as guardians. He left about L.3000 of property. The brother was just starting in business, and had the world before him. He put L.1500 of the trustemoney into his own pocket, without giving any security to the children; and, during the whole of their minority, he used it as his own, and paid them neither capital nor interest. His co-trustee, who was no relation in blood, was an example of generosity as strikingly as this individual was of selfishness. He lent out the other L.1500, took the children into his house, educated them along with his own family, applied the interest of the half of their fortune which he had rescued, faithfully, for their benefit, and finally accounted to them honestly for every shilling. When the children became of age, they prosecuted their disinterested uncle for the portion of their funds which he had mistaken for his own; and after a considerable litigation they succeeded in recovering principal, interest, and compound interest, which the court awarded against him, in consequence of the flagrancy of the case; but they were loudly taxed by him and his family with ingratitude and want of affection, for calling to a court of law so near and dear a relative!
As a contrast to this case, I am acquainted with an instance in which a body of trustees named in a deed of settlement by a mere acquaintance, a person who had no claim on their services through relationship, managed, for many years, the funds of a young family,—superintended the education of the children,—and accounted faithfully for every, farthing that came into their own possession; but who, at the close of their trust, owing to their having employed a law-agent who did not attend to his duty, and and to the children having turned out immoral, were sued personally for L.1000 each, and were involved in very troublesome and expensive litigation.
I mention these facts to convey to the younger part of my audience, who may not have had experience in such matters, an idea at once of the trouble and risks which often accompany the duty of guardianship. At the same time, I have no hesitation i saying, that I consider every man bound to under take that duty, with all its discomforts and dangers where the dictates of the higher sentiments urge his to do so. If one of our own relatives have been laid in a premature grave, nature calls aloud on us to assist and guide his children with our experience and advice. If we have passed our lives in habits of sincere friendship, and interchange of kindness, with one not connected with us by blood, but who has been called, before the ordinary period of human life, to part from his family for ever, we are bound by all the higher and purer feelings of our nature to lend our aid in protecting and assisting his surviving partner and children, if requested by him to do so.
There are instances, however, in which men, from vanity or more selfish motives, do not appeal, page 86 in their deeds of settlement, to their own respectable relatives and friends for assistance; but name men of eminent rank as the guardians of their children, under the double expectation of adding a posthumous lustre to their own names, and securing a distinguished patronage to their family. This practice is disowned by conscience, and by just feelings of independence; and trustees called on, in such circumstances, to act, are clearly entitled to decline.
Suppose, then, that a case presents itself, in which one of us feels himself justly required to accept the office of a trustee or guardian, under a deed of settlement—what is it his duty to do? Certain rules of law are laid down for the guidance of persons acting in these capacities, with which he should, at the very first, make himself acquainted. They are framed for the direction of average men, and, on the whole, prescribe a line of duty which tends essentially to protect the ward, but which also, when observed, affords an equal protection to the guardian. It has often appeared to me, from seeing the loss and suffering to which individuals are exposed from ignorance of the fundamental rules of law on this subject, that instruction in them, and in other principles of law applicable to duties which the ordinary members of society are called on to discharge, should form a branch of general education.
After having become acquainted with our duties as trustees or guardians, we should bend our minds sedulously to the upright discharge of them. We should lay down a positive resolution not to convert our wards, or their property and affairs, into sources of gain to ourselves, and not to suffer any of our cotrustees to do such an act. However tempting it may be to employ their capital in our own business, and however confident we may feel that we shall, in the end, honestly account to them for every shilling of their property,—still, I say, we ought not to yield to the temptation. The moment we do so, we commit their fortunes to all the hazards of our own; and this is a breach of trust. We place ourselves in circumstances in which, by the failure of our own schemes, we may become the instruments of robbing and ruining helpless and destitute children, committed, as the most sacred charges, to our honesty and honour. If this grand cause of malversation be avoided, there is scarcely another that may not be easily resisted.
After abstaining ourselves from misapplying the funds of our wards, our next duty is to watch over our co-trustees or guardians, in order to prevent them from falling into a similar temptation. Men of sensitive, delicate, and upright minds, who are not in the least prone to commit this offence themselves, often feel extraordinary hesitation in checking a less scrupulous co-trustee in his malpractices. They view the act as so dishonourable that they shrink from taxing another with it; and try to shut their eyes as long as possible to mismanagement, solely from aversion to give pain by bringing it to a close. But this is a weakness which is not founded in reason, but on a most erroneous view both of duty and of human nature. I can testify, from experience and observation, that a man who is thoroughly honest, never objects to have his transactions examined with the utmost strictness: He is conscious of virtue, and is pleased that his virtue should be discovered; which can never be done so effectually as by a close scrutiny of his conduct. We shall, therefore, never offend a really good and trustworthy man, by inquiring habitually how he is discharging his duty. On the contrary, he will invite us to do so; and esteem us the more, the more attentively we watch over the affairs of our pupils.
That steward whose account is clear,
Demands his honour may appear:
His actions never shun the light;
He is, and would be proved, upright.
Gay's Fables, Part II., Fab, 6.
On the other hand, if the organs of Conscientiousness be so defective in any individual, that he is tempted to misapply the funds committed to his care, he stands the more in need of being closely watched, and of having his virtue supported by checks and counsel; and in such circumstances no false delicacy should be allowed to seal our lips and tie up our hands. We cannot give just offence by the discharge of our duty in stopping peculation. If our co-guardian be upright, he will thank us for our scrupulosity; whereas, if he be dishonest, his feeling of offence will resemble that of a rogue at the officer who detects him and brings him to justice, which is unworthy of consideration.
But even in this case, we shall give much less offence than we imagine. It is a fact, of which I am convinced by extensive observation, that men in whom the organs of Conscientiousness are deficient, and who are thereby more prone to yield to temptations to infringe justice, have very little of that sensibility to the disgrace of dishonesty, which better constituted minds feel so acutely; and hence we may speak to them very plainly about their departures from duty, without their feeling debased. But whether they be offended or not, it is the duty of their co-trustees to prevent them from doing wrong.
If the funds of our pupils be properly preserved and profitably invested, there will generally be little risk of great failures in the remaining duties of trustees and guardians. These consist generally in seeing that the children are properly maintained, educated, and set out in life. Every trustee will be more able to discharge these duties well, in proportion to the range and value of his own information.
The next social duty to which I advert, is that of suretyship, or cautionry, as it is called in Scotland. A surety may either engage to pay a certain sum of money, if the principal obligant fail; or become bound for his good behaviour and proper discharge of duty, in any office to which he has been appointed. Great losses and much misery often arise from suretyship; and in consequence, many persons lay down the rule never to become surety for any human being; while others, of a more generous and confiding nature, are ready to bind themselves for almost every one who gives them a solemn assurance that they will never be called on to pay. I shall attempt to expound the philosophy of the subject, and we shall then be better able to judge of our duty.
Suretyship is a lame substitute for a knowledge of human character. There are men whose prudence and integrity are proof against every temptation; and if we were certain that any particular individual whom we designed to trust, or to employ in our affairs, was one of these, we should desire no other security for his solvency or good conduct, than that afforded by his own noble nature. But we know that there are also plausible persons who are only ostensibly honest; and we are never certain that an individual whom we are disposed to trust or employ may not, in an unlucky hour, be found to belong to this class. We, therefore, require that some one, who knows his qualities, should certify his possession of prudence and integrity, in the only way which can convince us of the entire sincerity of the recommendation, namely, by engaging to pay the debt in case of default,—or to indemnify us, if, through negligence or dishonesty, we shall suffer loss.
It appears to me that the practical application of Phrenology will diminish both the necessity for demanding security and the danger of granting it. I have repeatedly shewn to you examples of the page 87 three classes of heads; first, the class very imperfectly endowed in the moral and intellectual regions; secondly, the class very favourably constituted, in which these have a decided preponderance; and, thirdly, the class in which these regions and that of the propensities stand nearly in equilibrium. No man of prudence, if he knew Phrenology, would become surety for men of the lowest class, or be accessory, in any way, to placing them in situations of trust; because this would be exposing them to temptations, which their weak moral faculties could not withstand. Men having the highest combination of organs, if well educated, might be safely trusted without security; or if we did become bound for them we should have little to fear from their misconduct. Among several thousand criminal heads which I have seen, I have never met with one possessing the highest form of combination. Only once, in a penitentiary in Dublin, I found a female whose head approached closely to this standard, and I ventured to predict that the brain was not in a healthy condition. The jailor said that he was not aware of her brain being diseased, but that she was subject to intense and long-continued headachs, during which her mental perceptions became obscure; and the physician, on hearing my remark, expressed his own matured conviction that there was diseased action in the brain. This leaves, then, only the middle class of individuals, or those in whose brains the organs of the propensities, moral sentiments, and intellect, are nearly equally balanced, as those for whose good conduct surety would be most necessary; and these are precisely the persons for whom it would be most hazardous to undertake it. The necessity and the hazard both arise from the same cause. Individuals thus constituted may be moral, as long as external temptation is withheld; but they may, at any time, lapse into dishonesty, when strong inducements to it are presented. The possession of property, committed to their charge in a confidential manner,—that is to say, in such circumstances that they may misapply it for a time without detection,—frequently operates as an irresistible temptation, and, to the consternation of their sureties, they seem to change their character, at the very moment when their good conduct was most implicitly relied on. We sometimes read in the newspapers of enormous embezzlements, or breaches of trust, or disgraceful bankruptcies, committed by persons who, during a long series of years, had enjoyed a reputable character; and the unreflecting wonder how men can change so suddenly, or how, after having known the sweets of virtue, they can be so infatuated as to part with them all, for the hollow illusions of criminal gain. But the truth is, that these men, from having the three regions of the brain nearly equally balanced, never stood at any time on a very stable basis of virtue. Their integrity, like a pyramid poised on its apex, was in danger of being overturned by every wind of temptation that might blow against it.
In judging on the subject of suretyship, it is of some importance to know the characteristic distinctions of the different classes of minds: because, in some cases, such obligations lead to no loss, while in others they are ruinous in the extreme. Our understanding is perplexed while we have no means of accounting for these differences of result; but if you will study Phrenology, and apply it practically, it will clear up many of these apparent anomalies, and enable you to judge when you are safe, and when exposed to danger.
We come now to inquire into the practical rule which we should follow, in regard to undertaking suretyship. In the present state of society, the exacting of security is in many instances indispensable; and I cannot, therefore, see any ground on which those who decline, in all circumstances, to undertake it, can be defended. It appears to me to be a necessary duty, which presents itself to many individuals; and although, when imprudently discharged, it may be hazardous, we are not, on that account, entitled entirely to shrink from it. There are several precautions, however, which we are not only entitled, but called on, to adopt, for our own protection. In the first place, no man should ever bind himself to pay money to an extent, which, if exacted, would render him bankrupt; for this would be to injure his creditors by his suretyship: nay, he should not bind himself gratuitously to pay any sum for another, which, if lost, would seriously injure his own family. In short, no man is called on to undertake gratuitous and benevolent obligations beyond the extent which he can discharge without severe and permanent suffering to himself; and in subscribing such obligations, he should invariably calculate on being called on to fulfil them by payment. In general, men, even of ordinary prudence, find, by experience, that they are compelled to pay at least one-half of all the cautionary obligations which they undertake, and the imprudent even more. Unless, therefore, they are disposed to go to ruin in the career of social kindness, they should limit their obligations in proportion to their means.
Secondly—We should consider the object sought to be attained by the applicant. If he be a young man who desires to obtain employment, or to commence business on a moderate scale on his own account, or if a friend, in a temporary, unexpected, and blameless emergency need our aid, good may, in these instances, result from the act. But if the suretyship is wanted merely to enable a person who is doing well, to do, as he imagines, a great deal better; to enable him to extend his business, or to get into a more lucrative situation, we may often pause, and reasonably consider whether we are about to serve our friend, or injure both him and ourselves. According to my observation, the men who have succeeded best in the pursuits of this world, and longest and most steadily enjoyed prosperity and character, are those who, from moderate beginnings, have advanced slowly and steadily along the stream of fortune, aided chiefly by their own mental resources; men who have never hastened to be rich, but who, from the first, have seen that time, economy, and prudence, are the grand elements of ultimate success. These men ask only the means of a fair commencement, and afterwards give no trouble, either to the public or to their friends. Success flows upon them, as the natural result of their own course of action, and they never attempt to force it prematurely.
There are other individuals, full of sanguine hope, inordinate ambition, or boundless love of gain, who never discover the advantages of their present possessions, but are constantly aiming at an imaginary prosperity, just at arm's length beyond their reach; and who solicit their friends to aid them, that they may seize the prize. They urge their acquaintances to become sureties for them to raise money in order to extend their business. I recommend to those to whom this appeal is made, to moderate the pace of these sanguine speculators, instead of helping to accelerate it; to advise them to practise economy and patience, and to wait till they acquire capital of their own to increase their trade. The danger of undertaking obligations for such men arises from their over-sanguine, ambitious, and grasping dispositions, which are rendered only more ardent, by encouragement. The chances are many, that they will ruin themselves, and bring serious loss on their sureties. I have seen deplorable examples of families absolutely ruined by one of their number possessing this character. By brilliant representations of approach- page 88 ing fortune, he succeeded in obtaining possession of the moderate patrimonies of his brothers and sisters, the funds provided for his mother's annuity; in short, the whole capital left by his father, as the fruit of a long and laborious life—and in a few years he dissipated every sixpence of it in enterprises and speculations of the most extravagant description.
One benefit of Phrenology, to those who make a practical use of it, is to enable them to discriminate between a man's hopes and his real capacities. When they see considerable deficiency in the organs of Intellect, or in those of Cautiousness, Conscientiousness, and Firmness, they know that whatever promises the individual may make, or however sincere may be his intentions of being prosperous, yet, that if he involve himself in a multitude of affairs, beyond the reach of his intellectual powers, failure will be inevitable: and they act accordingly. I have repeatedly urged individuals to abstain from assisting characters of this description to extend their speculations, and advised them to reserve their funds for emergencies of a different description, which were certain to arise; and at the distance of a few years, after the advice had been forgotten by me, they have returned and thanked me for the counsel. Such speculative men generally fall into great destitution in the end; and my recommendation to their relatives has uniformly been, to reserve their own means, with the view of saving them from abject poverty, when their schemes shall have reached their natural termination in ruin; and this has been found to be prudent advice.
As a general rule, therefore, I would dissuade you from undertaking suretyship merely to increase the quantity, or accelerate the march, of prosperity, if your friend, by the aid of time, prudence, and economy, have it in his power ultimately to command success by his own resources.
In becoming bound for the good conduct of an individual in a new employment, you should be well aware that the situation into which you are about to introduce him, is suited to his natural dispositions and capacities, and not calculated to bring the weaker elements of his character into play, and be the means of ruining him, as well as injuring yourselves. Suppose, for example, that a young man has any latent seeds of intemperance in his constitution, or that he is fond of a wandering and unsettled life, and that, by becoming surety for his faithful accounting, you should obtain employment for him as a mercantile travelling agent, you might manifestly expose him to temptations which might completely upset his virtue. I have known individuals, who, in more favourable circumstances, had acquired and maintained excellent characters, ruined by this change. Again—If an individual be either extremely good-natured, so much so that he cannot resist solicitation; or if he be ambitious and fond of display and power; or very speculative; and if you aid him in obtaining an agency for a bank, by which means he will obtain an immediate command of large sums of money, you may bring him to ruin, when you intended to do him a great service; for his integrity will thereby be exposed to assaults in all these directions. It has been remarked, that more men prove unsuccessful as bank-agents, than almost in any other office of trust; and the reason appears to me to be, that the free command of money presents greater temptations to the weak points of character than almost any other external circumstance. For this reason, it is only men of the highest natural moral qualities who should be appointed to such situations: individuals whose integrity and love of justice and duty are paramount to all their other feelings; and then, with average intellectual endowments, their conduct will be irreproachable. It is clear, that until we possess an index to natural talents and dispositions which can be relied on in practice, much disappointment, loss, and misery, must inevitably be sustained, by the improper location or employment of individuals in the complicated relations of society; and if Phrenology promise to aid us in arriving at this object, it is worthy of our most serious consideration.*
Another social duty which men are occasionally called on to discharge, is that of acting privately as arbitrators between disputing parties, or publicly as jurymen. According to the present practice, no special preparation for these duties is supposed to be necessary. A young man may have obtained any kind of education, or no education; he may possess any degree of intelligence and talent; and he may be upright in his dispositions, or very much the reverse; yet none of these things are of. the least consideration, in regard to his qualification to serve as a juror. As soon as he is found inhabiting a house, or possessing a shop, or a farm, of a certain rent, his name is placed on the list of jurors; he is summoned in his turn to sit on the bench of justice, and there he disposes, by his vote, of the lives and fortunes of his fellow-men. The defence maintained for this system is, that as twelve individuals are selected in civil cases, and fifteen in criminal, the verdict will embody the average intelligence and morality of the whole; and that, as the roll of jurors includes all the higher and middle ranks, their decisions, if not absolutely perfect, will, at least, be the best that can be obtained. This apology is, to some extent, well-founded; and the superior intelligence of a few frequently guides a vast amount of ignorance and dulness in a jury. Still, the extent of this ignorance and inaptitude is a great evil; and as it is susceptible of removal, it should not be permitted to exist.
All of you who have served as jurors, must be aware of the great disadvantages under which individuals labour in that situation, from want of original education, as well as of habits of mental application. I knew an instance in which a jury, in a civil cause which embraced a long series of mercantile transactions, including purchases, sales, bills, excise entries, permits, and other technical formalities, was composed of four Edinburgh traders, and of eight men balloted from the county of Edinburgh, where it borders on Lanarkshire and Peeblesshire, men who occupied small farms, who held the plough and drove their own carts; persons of undoubted respectability and intelligence in their own sphere, but who knew nothing of mercantile affairs; whoso education and habits rendered them totally incapable of taking notes of evidence, and, of course, of forming any judgment for themselves. When the jury retired at ten o'clock at night, after a trial of twelve hours, one of the merchants was chosen foreman, and he asked the opinion of his brethren in succession. Eight of them echoed the charge of the presiding judge; but the other three announced a contrary opinion. The jurors from the country, seeing that the merchants were all on one side, and they on the other, acknowledged that the details of the case had extended far beyond their capacity of comprehension; that they really could form no judgment on the question, and therefore concluded that it was safest to follow the judge. The minority, who understood the case thoroughly, differed from the page 89 judge; they took great pains to explain, from their own notes, the leading circumstances to the majority, and succeeded in bringing them over to their opinion; and the result was, a verdict of a totally opposite description to that at first proposed. I obtained this information the day after the trial, from one of those who had stood in the minority. The verdict was right, and no attempt was made to disturb it by the party who lost his cause.
The majority were not to blame; they had been called on to discharge a public duty for which they were totally unprepared, and they did their best to accomplish the ends of justice. But what I humbly submit to your consideration, is, that, as the ordinary members of the community are called on to exercise the very important office of jurors, and may become the instruments of taking away the life or property of their fellow-men, their education should be so conducted as to qualify them to a reasonable extent for discharging so grave a duty. If we were accustomed to look on our social duties as equally important with our private interest, instruction calculated to qualify us to comprehend questions of private right and public criminality would undoubtedly form a branch of our early instruction. It might be useful to confer certificates or civil degrees on young men, founded on an examination into their educational attainments, and to render these indispensable by law to their being placed on the roll of jurors, or even of voters, and also to their exercising any public office of trust, honour, or emolument. The effects of such a regulation would probably be, that it would be considered disgraceful to want this qualification; that parents would strain every nerve to obtain it for their children; and that all who required to be the architects of their own fortunes, would pursue such studies as would enable them to acquire it. In Scotland the standard of education is low, but in England it is still humbler. I knew an Englishman who had acquired a fortune exceeding L.70,000, whose whole educational acquirements consisted in reading and the ability to subscribe his own name. He was, as you may suppose, a man Of great natural talent. A clerk always accompanied him in his mercantile journeys, who conducted his correspondence, drew his bills, kept his books, and, as far as possible, supplied his want of original education; but he strongly felt the extent of his own defects. His affairs had required such constant active exertion, after he had entered into business, that he had found no leisure to educate himself; and he was so far advanced in life when I conversed with him, that he had then no hopes of going to school.
Analogous to the duty of jurors, is that of acting as arbitrator between individuals who have differences with each other which they cannot amicably adjust. This being altogether a voluntary duty, it may be supposed that those only who are well known to be qualified for it, will be called on to discharge it; but the reverse is too often the case. Individuals who are themselves ignorant of the nature of an arbitrator's duties, are no judges of what qualifies another person to discharge them, and often make most preposterous selections. It is indeed a very common opinion, that the referee is the advocate of the party who nominates him, and that his duty consists in getting as many advantages for his friend as possible. Hence, in anticipation of disagreement, power is generally given to the two referees, in case of difference in opinion, to choose a third person, whose award shall be final; and not unfrequently this oversman, as he is called in Scotland, halves the differences between the two discordant arbitrators, and assumes that this must be absolute justice.
It is a favourite maxim with persons not conversant with law, that all disputes are best settled by a reference to "honest men judging according to equity." I have never been blind to the imperfections of law and of legal decisions; but I must be permitted to say, that I have seen the worst of them far surpassed in absurdity and error, by the decisions of honest men judging according to equity. If any of you have ever acted as an arbitrator, he must have found that the first difficulty that presented itself to his understanding, was the wide difference between the contending parties regarding matters of fact. The law solves this difficulty, by requiring evidence, and by establishing rules for determining what evidence shall be sufficient. Honest men, in general, hold themselves to be quite capable of discovering, by the inherent sagacity of their own minds, which statement is true, and which false, without any evidence whatever, or, at least by the aid of a very lame probation. The next difficulty which an arbitrator experiences is, to discover a principle in reason, by which to regulate his judgment, so that impartial men may be capable of perceiving why he decides as he does, and that the parties themselves may be convinced that justice has been done to them. In courts of law, certain rules, which have been derived from a comprehensive survey of human affairs, and much experience, are taken as the guides of the understanding in such circumstance. These are called rules or principles of law. They do not always possess the characteristics of wisdom which I have here described, nor are they always successfully applied; but the objects aimed at, both in framing and applying them, are unquestionably truth and justice. Yet honest men, judging according to equity, too frequently treat all such rules with contempt, assume their own feelings to be better guides, and conceive that they have dispensed absolute justice, when they have followed the dictates of their own understandings, unenlightened, inexperienced, and sometimes swayed by many prejudices.
I recollect a decision of this kind, which astonished both parties. A trader in Edinburgh had ordered a cargo of goods from Liverpool, according to a description clearly given in a letter. They were sent, and invoiced according to the description. When they arrived, it was discovered that they were greatly inferior, and even some of the articles different in kind from those ordered; and also that they were faded, and on the point of perishing through decay. The purchaser refused to receive them; the seller insisted; and the question was referred to an "honest man." He decided that the goods were not conformable to the order given, and that the purchaser was not bound to receive them; but he nevertheless condemned the purchaser to pay the freight from Liverpool, and all the expenses of the arbitration; and assigned as his reasons for doing to, that he, the arbitrator, was not bound by rules of law, but was entitled to act according to equity; that the seller would sustain an enormous loss, by disposing of the cargo at Leith for what it would bring; that the purchaser had escaped a serious evil, in being allowed to reject it; and that, therefore, it was very equitable that the purchaser should bear a little of the seller's burden; and in his opinion the freight and costs would form a very moderate portion of the total loss which would be sustained. He added, that it would teach the purchaser not to order whole cargoes again, which he thought was going beyond the proper limits of his trade; besides, it was a very dangerous thing for any man to order a whole cargo, especially when he had not seen the goods before they were shipped.
Perhaps some persons may be found, to whom this may appear to be a just judgment; but to every one acquainted with the principles of trade, and who perceives that the seller's bad faith, or unbusiness like error, was the sole cause of the evil, it must ap page 90 pear, at best, as a well intended absurdity, if not a downright iniquity.
I know another case, in which the arbitrator found himself much puzzled, and resorted to this method of solving the difficulty: He called the two parties, Mr A and Mr B, to meet him in a tavern, and placed them in separate rooms. He went first to Mr A, and told him that he had seriously read all the papers, and considered the case, and had come to the conclusion that he, Mr A, was entirely in the wrong, and that he meant to decide against him, but had called him and Mr B to meet him, to try if it were possible to negotiate a compromise between them, to save himself from the disagreeable necessity of pronouncing such a decision. He concluded by asking Air A what was the largest sum he would voluntarily offer, to avoid the impending decision. Mr A, after expressing his surprise and disappointment, and arguing his case anew, which argument was heard patiently, and pronounced to be unsatisfactory, at last named a sum. The arbitrator proceeded to the room in which Mr B was waiting, and told him that he had studied the case, &c., and was extremely sorry that he regarded him as completely in the wrong, and meant to decide against him; but as he had a regard for him, he begged to know the smallest sum which he was willing to accept, if Mr A could be induced to offer it, as an amicable compromise, to save him the pain of pronouncing such a judgment. Mr B argued, and was listened to; his arguments were repelled, and he was again solicited to name a sum, under pain of having a decision immediately pronounced, which would deprive him of all. He at last named a sum. There was a wide difference between the sums named; but the referee was not to be defeated; he went backward and forward between them, constantly threatening each in turn with his adverse decision, till he forced the one up and beat the other down, so that they at last met; and then, keeping them still apart, he caused each of them to subscribe a binding letter of compromise. This accomplished, he introduced them to each other, and boasted of the equity of his mode of settling the dispute.
This decision was more disinterested than one of a similar kind mentioned by Cicero. An arbiter, Quintas Fabius Labeo, being appointed by the Senate of Rome to settle; a boundary between the people of Nola and those of Naples, counselled each to avoid greediness, and rather to restrict than unjustly to extend their claims. They both acted on this advice, and a space of unclaimed ground was left in the middle. He gave to each the boundary which they had claimed, and the middle space to the Roman people!
* * Several joint-stock companies have recently been formed to guarantee the intromissions and good conduct of persons employed in situations of trust, and the moderate premiums which they demand speak highly for the general integrity of the industrious classes of Great Britain. In the Phrenological Journal, vol. xiv., p. 297, some remarks will be found on the use which may be made of Phrenology by these associations.