CHAPTER II. THE RELATION OF PRINCIPAL AND AGENT. THE kinds of agents most worthy of the notice of a moral philosopher are attorneys, brokers, factors, and other mercantile, manufacturing, and agricultural agents. I proceed to explain the nature of their duties. of slaves. Indeed, reasons exist why it should be here extended to acts done wilfully in the course of a public employment, and to which the master's assent, from its nature, may be fairly implied." In this decision, sound policy, law, reason, and morals, as they always ought, fully coincide. In truth these terms in their best sense, always mean the same thing. Besides this, we have two earlier decisions in this State, on the same subject, which may be seen in 2 Bay, p. 345, and 3 McCord, p. 400. By our laws, too, the lives and limbs of servants (slaves) are protected against their masters and all others; their masters are required by law to furnish them with sufficient food and clothing; — excessive and cruel chastisement is also punishable by law. The reason for enacting these provisions is declared by our legislature, to be, because "cruelty is not only highly unbecoming those who profess themselves Christians, but is odious in the eyes of all men who have any sense of virtue and humanity." Servants are further declared "to be under the protection of the masters and managers of plantations, as well as un. der their government; and, to prevent the provisions of the act from being evaded in their "true intent and meaning," it is enacted, that, under circumstances calculated to favor evasion, "the master shall be adjudged guilty of the offence, unless he can make the contrary appear by good and sufficient evidence, or shall, by his own oath, clear and exculpate himself." (2 Brevard, pp. 240 – 242.) Moreover, any person who shall wilfully murder any servant (slave), must, by the laws of this State, answer for such servant's life by forfeiting his own. (Acts of 1821, p. 12.) I do not find any law, which requires the master to give his servants moral and religious instruction; but the Act of 7th June, 1712, secures baptism to all servants who may wish to receive that sacrament, and also the profession of the Christian faith; and the practice is nearly universal for masters, not only to permit, but to encourage their servants to attend divine worship on Sunday. Provision is made, too, for their accommodation, in almost, if not quite, all our churches. The Spanish laws, on this subject, may well be commended, which require masters to have their servants prepared for baptism by suitable instruction, and to pay a priest to explain to them the Christian doctrine, and to administer to them the holy sacraments of the Church. (See Royal Spanish Order, contained in Report of 11th of August, 1832, made to the House of Commons on the Extinction of Slavery throughout the British Dominions, folio, p. 241.) Whoever undertakes another man's business, thereby makes it his own; for he knows that the business was committed to him with that expectation. If, therefore, he has used such a degree of activity, and practised such caution, as the importance of the business, in his judgment, deserved; that is, as much as he would have used, if the same interest of his own had been at stake, he has discharged the full measure of his duty, although it should afterwards be found, that, by greater activity, diligence, and perseverance, he might have transacted the business with greater advantage. This is the general principle of the morals of principal and agent ; - but still some expansion and application of the principle cannot fail to be useful. This is the more manifest, because the relation of principal and agent is but one branch of the more comprehensive relation of employer and the person employed; and, as all persons are either employers of others, or are employed by them, and often both, the rights and duties growing out of this relation belong, in substance, to all the modifications of the more comprehensive one, and ought, therefore, to be accurately as well as universally understood. The authority of the agent may be created by writing, or verbally without writing; and, for the ordinary purposes of business, the latter is sufficient. Or the agency may be inferred from the relation of the parties and the nature of the employment, without proof of any express appointment. It is sufficient, that there be satisfactory evidence of the fact, that the principal employed the agent, and that the agent undertook the trust. And the extent of the authority of an agent will sometimes be extended or varied on the ground of implied authority, according to the pressure of circumstances connected with the business with which he is intrusted. Even an acquiescence in the assumed agency of another, when the acts of the agent are brought to the knowledge of the principal, is equivalent to an express authority. By permitting another to hold himself out to the world as his agent, the principal adopts his acts, and will be held bound to the person who gives credit thereafter to the other in the capacity of his agent. There is a very important distinction, on the subject of the powers of an agent, between a general agent and one appointed for a specific purpose. An agent, who is intrusted with general powers, must exercise a sound discretion. If his powers are special and limited, he must strictly follow them. The acts of a general agent will bind his principal so long as he keeps within the general scope of his authority, even though he may act contrary to his private instructions; and this rule is necessary to prevent fraud, and encourage confidence in dealing. It is, in fact, indispensable to safety in dealing. A general agency is always in a considerable degree confidential. A general agent must exercise a sound discretion in the business of his principal, and, even if he has his instructions, he may depart from them, when, from some change in the circumstances, he is fully convinced, that his principal, if he were present, would change his intention. This rule is designed to guide, under a change of circumstances, the judgment and consciences of those whose agencies are confidential. But an agent constituted for a particular purpose, and under a limited power, cannot bind his principal, if he exceeds his power. The special authority must be strictly pursued; and whoever deals with an agent, constituted for a special purpose, deals at his peril, when the agent passes the precise limits of his power. * It is scarcely necessary to say, that an agent, in all his intercourse and in all his transactions with his principal, is bound in conscience to act up to the confidence which is reposed in him. In the case of a general agency, the relation between the parties is highly confidential, and imports the most perfect good faith between them. Even the law of the land, whose general standard of conduct in respect to morals is imperfect,† speaks on this subject in a tone well fitted to command attention, respect, and deference. "The law, acting in aid of general morals, will not suffer one party, standing in a situation of which he can avail himself against the other, to derive advantage from that circumstance; for it is founded in a breach of confidence." Again; the general principle of law, which governs in this * Kent's Commentaries on American Law, Vol. II. pp. 477-492. ↑ See above, pp. 31, 32. case, and in many other analogous relations which subsist among men, such as lawyer and client, guardian and ward, trustee and beneficiary, (that is, the person beneficially interested,) is "that, wherever confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which he is bound to protect, he shall not be permitted to hold any such advantage." * Further, the law interposes, upon "a motive of general public policy, and in a certain degree gives protection to the parties against the effects of overweening confidence, and self-delusion, and the infirmities of hasty and precipitate judgment." And, although courts of justice "do not sit, or affect to sit, in judgment upon cases, as custodes morum, enforcing the strict rules of morality," yet they maintain, that, “if confidence is reposed, it must be faithfully acted upon, and preserved from any mixture of imposition; if influence is acquired, it must be kept free from the taint of selfish interests, and cunning and overreaching bargains; if the means of personal control are given, they must be always restrained to purposes of good faith and personal good." + "In all cases," says Mr. Justice Story, "the principal contracts for the aid and benefit of the skill and judgment of the agent; and the habitual confidence reposed in the latter makes all his acts and statements possess a commanding influence over the former. Indeed, in such cases, the agent too often so entirely misleads the judgment of his principal, that, while he is seeking his own peculiar advantage, he seems too often but consulting the advantage and interest of his principal; placing himself in the odious predicament, so strongly stigmatized by Cicero ; Totius autem injustitiæ nulla capitalior est, quam eorum, qui, cum maxime fallunt, id agunt, ut viri boni esse videantur. It is, therefore, for the common security of all mankind," continues he, "that gifts procured by agents, and purchases made by them * See Story on "Constructive Fraud," in his Commentaries on Equity Jurisprudence, Vol. I. pp. 305, 319, 320. + Idem. De Officiis, Lib I. c. 13. Translated thus; "No class of men are guilty of more flagrant injustice than those, who, in the midst of their wrong conduct, so disguise it, as, at the same time, to wear the garb and put on the appearance of upright men." from their principals, should be scrutinized with a close and vigilant suspicion. And, indeed, considering the abuses which may attend any dealings of this sort between principals and agents, a doubt has been expressed, whether it would not have been wiser for the law in all cases to have prohibited them; since there must almost always be a conflict between duty and interest on such occasions."* A special agency is chiefly ministerial, and is constituted for the purpose of having some particular act performed, of effecting some particular purpose, or of accomplishing some special service. Thus, when an attorney is employed to treat for an estate, which is a case of confidential agency, if he finds a defect in the title, he very properly desists, until he can confer with his principal. But if the commander-in-chief of an army detaches a subordinate officer upon a particular service, which service is found more hazardous, or otherwise more difficult, than was supposed; so much so, that the officer is convinced, that his superior, if he were acquainted with the true state of affairs, would recall or modify his orders; still this officer must, if he cannot wait for fresh instructions without prejudice to the service upon which he is detached, pursue at all hazards, those which he brought with him. † This, it must be admitted, is an extreme case, and it is always proper, that even a ministerial (special) agent, should keep in view the nature of the service he is to render, and of the business he is to transact, and that he should in some degree make this his guide. In every great change, especially every sudden change of circumstances, which could not have been anticipated, it is his duty, if possible, to wait for further instructions from his principal. When an agent is made responsible for the issue of any business or enterprise intrusted to him, he ought to be permitted to appoint his assistants and, to choose his own means by w ich to accomplish the object; and, whenever an agent is not allowed to appoint his assistants and to choose his own means, he cannot equitably be made responsible for the result. In one class of instances which come within this relation, the Commentaries on Equity Jurisprudence, Vol. I. pp. 310, 311. |