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.
Let us now introduce our readers to a legislative protection against
frauds of a more dire and mysterious character, in the shape of an act
passed in the sixth year of Edward VI., 'for stuffing of feather-beds,
bolsters, mattresses, and cushions.' Our readers, we hope, will not
suppose--as the words might lead them to infer--that these articles
are to be stuffed with the act; on the contrary, it would be highly
penal so to do. The chief provisions are: 'For the avoiding of the
great deceipt used and practised in stuffing of feather-beds,
bolsters, pillows, mattresses, cushions, and quilts--be it enacted,
that no person or persons whatsoever shall make (to the intent to
sell, or offer to be sold) any feather-bed, bolster, or pillow, except
the same be stuffed with dry-pulled feathers, or clean down only,
without mixing of scalded feathers, fen-down, thistle-down; sand,
lime, gravel, unlawful or corrupt stuff, hair, or any other, upon pain
of forfeiture,' &c. One would like to know what 'unlawful or corrupt
stuff' is, and whether the corruptness be physical through putridity,
or merely metaphysical and created, like the unlawfulness by statute.
The act provides further, that after a certain day no person 'shall
make (to the intent to sell, or offer, or put to sale) any quilt,
mattress, or cushions, which shall be stuffed with any other stuff
than feathers, wool, or flocks alone,' on pain of forfeiture.
But the most stringent enactments for the protection of the public
against such wholesale deceptions appear to have been in the article
of fustian; and perhaps the hidden adulterations that suggested the
enactments, may be the reason why unsound reasonings and hollow
speeches are called fustian. There is something mysteriously awful in
the act of the eleventh year of Henry VII., called 'A remedy to avoid
deceitful slights used upon fustians.' It begins thus:
'That whereas fustians brought from the parts beyond the sea unshorn
into this realm, have been and should be the most profitable cloth for
doublets and other wearing clothes greatly used among the common
people of this realm, and longest have endured of anything that have
come into the same realm from the said parts to that intent--for that
the cause hath been that such fustians afore this time hath been truly
wrought and shorn with the broad sheare, and with no other instruments
or deceitful mean used upon the same. Now so it is, that divers
persons, by subtlety and undue slights and means, have deceivably
imagined and contrived instruments of iron, with which irons, in the
most highest and secret places of their houses, they strike and draw
the said irons on the said fustians unshorn--by means whereof they
pluck off both the nap and cotton of the said fustians, and break
commonly both the ground and threads in sunder; and after, by crafty
sleeking, they make the same fustians to appear to the common people
fine, whole, and sound; and also they raise up the cotton of such
fustians, and then take a light candle, and set it on the fustian
burning, which singeth and burneth away the cotton of the same fustian
from the one end to the other down to the hard threads, instead of
shearing; and after that put them in colour, and so subtlely dress
them, that their false work cannot be espied, without it be workmen
shearers of such fustian, or the wearers of the same.'
Many penalties and forfeitures are laid on the persons who so
treacherously corrupt honest fustian. But one is apt to fear, that the
accurate account given of the process may have induced some people to
follow it, who would not have thought of doing so but for the
instruction contained in the act for abolishing it.
Our manufacturing operatives have been justly censured for their
occasional--and, to do them justice, it is but occasional--enmity to
machinery. Sometimes it may be palliated, though not justified, by the
hardship which is often, without doubt, suffered by those who have to
seek a new occupation. We suspect, however, that the legislature is
not entirely free from this kind of barbarous enmity. We are led to
this supposition by finding, in the sixth year of Edward VI., an act
'for the putting down of gig-mills.' It sets out with the principle,
that everything that deteriorates manufactured articles does evil,
continuing: 'And forasmuch as in many parts of this realm is newly and
lately devised, erected, builded, and used, certain mills called
gig-mills, for the perching and burling of cloth, by reason whereof
the true drapery of this realm is wonderfully impaired, and the cloth
thereof deceitfully made by reason of the using of the said
gig-mills'--and so provisions follow for their suppression. It is a
general effect of machinery to fabricate goods less lasting than those
which are handwrought, but with an accompanying reduction of price,
which makes the machine produce by far the cheaper. We fear the
legislature saw only the deterioration, and was not alive to the more
than compensating facility of production.