Although the natural rights of all men to acquire, possess, and dispose of property—which, of course, involves the right to make all the contracts, naturally lawful, by which property may be acquired or disposed of—is so clearly announced in most of our constitutions; although, as a principle of natural law, it is too manifest to be doubted, or denied; although it is a right, in its nature vital to the well being, and even to the self-preservation of every man; and although all our statute Books abound with enactments, infringing, denying, or withholding this right, on the part of a greater or less portion of the people; it is nevertheless hardly probable that a single one of all these thousand enactments has ever yet encountered the veto of the judiciary. What a sickening proof this, of the degradation, corruption, and servility of that branch of the government which holds all our rights in its hands.
The judiciary should be made entirely independent of the executive and legislative branches of the government. They should neither receive their appointments nor salaries from them; nor be amenable to them by impeachment. We might then hope that they would act as a check upon their usurpations, instead of acting, as they generally do now, as mere pimps and panders to them, lending the covering of their sanction to hide the crimes of the legislatures from the eyes of the victims. Judges should be elected by the people; for short terms; their salaries should be fixed by the constitutions; and they should be amenable, by impeachment, to independent tribunals specially instituted for the purpose. They should also be separately chosen, at separate periods, and by separate districts of the people—that no party, however powerful in the nation, or in the state, might be able to choose the whole of the judiciary.
The judiciary is altogether the most important department of the government; or rather would be so, if it were properly constituted. Indeed, if judges were but honest and capable, there would be very little for the legislative department to do, in regard to property, except to provide the means for carrying the decisions of the judiciary into effect.
6. Jones on Bailments, p. 133.
7. A promissory note has been defined to be “a written promise to pay money absolutely, and at all events.” (Bailey on Bills, p. 1. Kent’s Commentaries, Lect. 41.) And courts now act on that theory, and on the theory that such a contract is binding. But if such were the legal meaning of the contract, it would plainly be an immoral, absurd, and, therefore, void contract—of no legal obligation whatever.
8. A bailment is where one person is temporarily intrusted with the property of another, either for safe keeping, as in the case of a special deposit; or to be used, as in the case of a horse lent for a journey; or to be sold, as in the case of goods intrusted to a commission merchant; or for some other purpose; under an agreement, express or implied, that he will comply with the conditions on which it is intrusted to him, and finally restore it to the owner, (or its equivalent, if it be sold,) or otherwise dispose of it agreeably to the owner’s directions. The owner is called the bailor—the person intrusted, the bailee. If the property be lost or injured in the hands of the bailee, without any fault, or culpable neglect on his part, the loss falls on the owner.
9. The value sold by the debtor to the creditor may often be the same “value,” which he has just “received” of the creditor. It must be the same, where the debtor has no other property. But where he has other property, the value that he sells to the creditor is merged in the value of his whole property, and continues so until it is finally separated from it to be delivered to the creditor.
10. On this point more hereafter.
11. To say that value entrusted to a debtor was lost through his incapacity for the judicious management of it, (as it often really is, instead of by accident,) makes the case no stronger in favor of the perpetual liability of the debtor; because a want of capacity is nothing for which the debtor is culpable, or for which he can rightfully be held liable. The creditor, therefore, must judge for himself, and must always be presumed to have judged for himself, and to have taken the risk of the debtor’s capacity, or incapacity, before he entrusted his property to him. All he could expect, or have a right to require of the debtor, was the faithful exercise of whatever capacity he possessed. It is neither policy, equity, nor law, that a man shall be protected against the legitimate consequences of his own negligence, or be permitted to throw them even upon another person equally negligent; much less upon an innocent person. The law requires diligence of all. This principle, therefore, forbids that a creditor, who has been so negligent as to entrust his property to an incompetent debtor, should hold the debtor responsible for its loss, when the latter has faithfully exercised his best ability for its preservation.
12. I shall hereafter have occasion to speak of the exceptions to this rule, and to show in what cases a moral obligation to pay may remain, after the legal one has expired.
13. This point will be more fully established in the next chapter.
14. That is, each debt becomes a lien in the order in which it is contracted, if the debtor practise no fraud. But if a debtor should fraudulently conceal a former debt, when contracting a succeeding one, the first creditor might thereby lose his prior lien, and the second creditor become entitled to it, in preference to him. The principle, on which the debtor’s fraud would have this effect against the rights of his first creditor is this. Possession is prima facie evidence of property. There is no exception to this rule, unless in cases of real estate, where legislation has substituted public records, for possession, as evidence of property. There being no exception to the rule as to personal property, all persons are bound to know it, and govern themselves accordingly. If, therefore, A put his personal property into the hands of B—no matter on what private agreement between themselves, whether on the bailment of debt, or any other bailment—he thereby virtually and legally asserts, to the world, that B is the owner of it; and he cannot retract that assertion to the injury of any third person, who has been deceived by it, or who has purchased, without notice of the contrary, and actually paid value for the property. The sale, will, therefore, be a valid one to the purchaser, and the original owner can look only to his bailce for the damages.
This principle makes it necessary that the owner of property should take upon himself the risk (as he evidently ought) of any dishonest sales of it by those, to whom he voluntarily intrusts it, and whom he holds out to the world as the owners, instead of enabling him to throw this risk upon innocent and ignorant purchasers, who proceed according to law in presuming, (where they are not informed, or put upon inquiry to the contrary,) that the one having the property in his possession, is the true owner of it.
On this principle, a second debt, (which involves a safe of value in the debtor’s hands,) contracted by concealing from the creditor the existence of a former debt, might be valid against the prior creditor, and operate as a prior lien on the debtor’s property.
But there would be little or no danger of such transactions; because, first, the habit of obtaining credit is so general, as to serve as reasonable notice to put creditors on inquiry; and every creditor would therefore be bound either to take the risk of any prior debts, or to make special inquiry