LEGISLATIVE PROTECTION AGAINST FRAUDS.
There is a proverb full of wisdom—as these brief embodiments of experience often are—to the effect that in commerce 'the buyer's eye is his merchant.' It has found its way into our legal text-books, to express a principle which modern law has had much in view—that people should look to their own skill and knowledge in making their purchases, and should not trust to the legislature to protect them, by interference and penalties, from purchasing unworthy commodities. Undoubtedly, fraud, when it occurs, must be punished. If a merchant sell by sample, and intentionally give a different article—if a dog-dealer clothe a cur in the skin of a departed lap-dog, and sell him warranted an undoubted Blenheim spaniel—there should be some punishment for the fraud. It will not be found expedient, however, to go far, even in such clear cases. In too entirely superseding the buyer's eye, and substituting the judge's, we remove a very vigilant check on fraud. If people never bought Blenheim spaniels without an ample knowledge of the animal's character and appearance, followed by minute observation, it would do more to prevent fraud in this small by-article of commerce than a host of penal statutes.
And when we come to less palpable imperfections in goods, it will be seen that legislation is quite incapable of coping with them. If every thrifty housewife, whose last bought bushel of potatoes is more waxy than they ought to be—if every shabby dandy, who has bought a glossy satin hat, 'warranted superfine, price only 5s.,' and who finds it washed into a kind of dingy serge by the next shower—had his action for the infliction of penalties, it would be a more litigious world even than it is. With thimble-riggers, chain-droppers, fortune-telling gipsies, and the like, the law wages a most unproductive war. Penal statutes and the police do little to put them down, while there are fools whose silly selfishness or vanity makes them ready dupes: if these fools would become wise and prudent, all the penalties might be at once dispensed with. But only imagine the state of litigational confusion in which this country would be plunged, if every tradesman who sold 'an inferior article,' which had a fair and attractive appearance, could be subject to penal proceedings!
Yet our ancestors made this attempt; and under the early monarchs of England there were passed a number of statutes, which vainly endeavoured to compel every manufacturer and dealer to be honest. The wool-trade was an especial favourite of this kind of legislation. Indeed, if any one be in search of violent legislative attempts to force trade into artificial channels, he will be very sure to find them if he turn up the acts on the wool and woollen trade. They would fill some volumes by themselves. One great object of the government, was to prohibit the exportation of wool, to export it only in the manufactured article, and to sell that only for gold. A tissue of legislation of the most complicated kind was passed to establish these objects. Costly arrangements were made, by which not only in this country, but also in others, the sale of the woollens was conducted only by Englishmen. This, however, is not our immediate subject—it relates rather to the curious efforts to make the manufacturers produce a sound article.
An act of the 13th of Richard II. (1389), gives this melancholy account of the dishonesty of certain cloth-makers, and provides a penal remedy: 'Forasmuch as divers plain clothes, that be wrought in the counties of Somerset, Dorset, Bristol, and Gloucester, be tacked and folded together, and set to sale, of the which clothes a great part be broken, brused, and not agreeing in the colour, neither be according to breadth, nor in no manner to the part of the same clothes showed outwards, but be falsely wrought with divers wools, to the great deceit, loss, and damage, of the people, in so much, that the merchants who buy the same clothes, and carry them out of the realm to sell to strangers, be many times in danger to be slain, and sometimes imprisoned, and put to fine and ransom by the same strangers, and their said clothes burnt or forfeit, because of the great deceit and falsehood that is found in the said clothes when they be untacked and opened, to the great slander of the realm of England. It is ordained and assented, that no plain cloth, tacked nor folded, shall be set to sale within the said counties; but that they be opened, upon pain to forfeit them, so that the buyers may see them and know them, as it is used in the county of Essex.' One would think, that if the buyers found themselves habitually cheated by made-up goods, they would find the remedy themselves, by insisting on seeing them, and declining, according to a Scottish saying, to buy 'a pig in a poke.' Another clause of the same act seems equally gratuitous: 'Provided always, that after the merchants have bought the same clothes to carry, and do carry them out of the realm, they may tack them and fold them at their pleasure, for the more easy carriage of them.' What a very accommodating statute!
And it really is reasonable, in comparison with other enactments on the same subject. In the ninth year of Henry VIII., for instance, an act was passed for 'avoiding deceits in making of woollen clothes,' containing a whole series of troublesome regulations, such as the following: 'That the wool which shall be delivered for or by the clothier to any person or persons, for breaking, combing, carding, or spinning of the same, the delivery therefore shall be by even just poise and weight of averdupois, sealed by authority, not exceeding in weight after the rate of xii pound seemed wool, above one quarter of a pound for the waste of the same wool, and in none other manner; and that the breaker or comber do deliver again to the same clothier the same wool so broken and combed, and the carder and spinner to deliver again to the said clothier yarn of the same wool, by the same even just and true poise and weight (the waste thereof excepted), without any part thereof concealing, or any more oil-water, or other thing put thereunto deceivable.
'Item, that the weaver which shall have the weaving of any woollen yarn to be webbed into cloth, shall weave, work, and put into the web, for cloth to be made thereof, as much and all the same yarn as the clothier, or any person for him, shall deliver to the same weaver, with his used mark put to the same, without changing, or any parcel thereof leaving out of the said web; or that he restore to the same clothier the surplus of the same yarn, if any shall be left not put in the same web, and without any more oil brine, moisture, dust, sand, or other thing deceivably putting or casting to the same web, upon pain to forfeit for every default three shillings and four pence.
'Item, that no manner of person buy any coloured wool, or coloured woollen yarn, of any carder, spinner, or weaver, but only in open market, upon pain of forfeiture of such wool and yarn so bought.' And so on: these, in fact, are but the beginning of a series of regulations, which it would tire the reader to peruse throughout.
One would think, that shoes and other leather manufactures are among the last things that require to be made sufficient by legislation. The ill-made shoes wear out, and the purchaser, if he be wise, will not go again to the same shop. Parliament, however, did not leave him in the matter to the resources of his own wisdom. By a statute of the 13th of Richard II., it is provided: 'Forasmuch as divers shoemakers and cordwainers use to tan their leather, and sell the same falsely tanned—also make shoes and boots of such leather not well tanned, and sell them as dear as they will, to the great deceipt of the poor commons—it is accorded and assented, that no shoemaker nor cordwainer shall use the craft of tanning, nor tanner the craft of shoemaking; and he that doth contrary to this act, shall forfeit to the king all his leather so tanned, and all his boots and shoes.'
Fifty-two years later—in the year 1485, it was found that the people were still cheated with bad boots and shoes—especially, we doubt not, when they bought them cheap—and the legislature, pondering on a possible remedy, thought they might find it in further subdivision, and prohibiting tanners from currying their leather; and so it is enacted, 'that where tanners in divers parts of this realm usen within themselves the mystery of currying and blacking of leather insufficiently, and also leather insufficiently tanned, and the same leather so insufficiently wrought, as well in tanning as in currying and blacking, they put to sale in divers fairs and markets, and other places, to the great deceipt and hurt of liege people'—so no tanner is to 'use the mystery of a currier, nor black no leather to be put to sale, under the forfeiture of every hyde,' &c.