It must be remembered, however, that the confinement of a debtor in a goal is a punishment; and that every punishment supposes a crime. To pursue, therefore, with the extremity of legal rigour, a sufferer, whom the fraud or failure of others, his own want of capacity, or the disappointments and miscarriage to which all human affairs are subject, have reduced to ruin, merely because we are provoked by our loss, and seek to relieve the pain we feel by that which we inflict, is repugnant not only to humanity, but to justice; for it is to prevent a provision of law, designed for a different and salutary purpose, to the gratification of private spleen and resentment. Any alteration in these laws, which could distinguish the degrees of guilt, or convert the service of the insolvent debtor to some public profit, might be an improvement; but any considerable mitigation of their rigour, under colour of relieving the poor, would increase their hardships. For whatever deprives the creditor of his power of coercion, deprives him of his security; and as this must add greatly to the difficulty of obtaining credit, the poor especially the lower sort of tradesmen, are the first who would suffer by such a regulation. As tradesmen must buy before they sell, you would exclude from trade two thirds of those who now carry it on, if none were enabled to enter into it without a capital sufficient for prompt payments. An advocate, therefore, for the interests of this important class of the community, will deem it more eligible, that one out of a thousand should be sent to gaol by his creditor, than that the nine hundred and ninety-nine should be straitened and embarrassed, and many of them lie idle, by the want of credit.

CHAPTER XI.

CONTRACTS OF LABOUR.

SERVICE.

SERVICE in this country is, as it ought to be, voluntary, and by contract; and the master's authority extends no further than the terms or equitable construction of the contract will justify.

The treatment of servants, as to diet, discipline, and accommodation, the kind and quantity of work to be required of them, the intermission, liberty, and indulgence to be allowed them, must be determined in a great measure by custom; for where the contract involves so many particulars, the contracting parties express a few perhaps of the principal, and by mutual understanding, refer the rest to the known custom of the country in like cases.

A servant is not bound to obey the unlawful commands of his

master; to minister, for instance, to his unlawful pleasures; or to assist him in unlawful practices in his profession; as in smuggling or adulterating the articles which he deals in. For the servant is bound in nothing but his own promise; and the obligation of a promise extends not to things unlawful.

For the same reason, the master's authority is no justification of the servant in doing wrong; for the servant's own promise upon which that authority is founded, would be none.

Clerks and apprentices ought to be employed entirely in the profession or trade they are intended to learn. Instruction is then wages; and to deprive them of the opportunities of instruction, by taking up their time with occupations foreign to their business, is to defraud them of their wages.

The master is responsible for what a servant does in the ordinary course of his employment; for it is done under a general authority committed to him, which is in justice equivalent to a specific direction. Thus, if I pay money to a banker's clerk, the banker is accountable; but not if I had paid it to his butler or his footman, whose business is not to receive money. Upon the same principle, if I once send a servant to take up goods upon a credit, whatever goods he afterwards takes up at the same shop, so long as he continues in my service, are justly chargeable to my account.

The law of this country goes great lengths in intending a kind of concurrence in the master, so as to charge him with the consequences of his servant's conduct. If an inkeeper's servant rob his guests, the innkeeper must make restitution; if a farrier's servant Tame your horse, the farrier must answer for the damage: and still further, if your coachman or carter drive over a passenger in the road, the passenger may recover from you a satisfaction for the hurt he suffers. But these determinations stand, I think, rather upon the authority of the law, than any principle of natural justice. There is a carelessness and facility in "giving characters," as it is called, of servants, especially when given in writing, or according to some established form, which, to speak plainly of it, is a cheat upon those who accept them. They are given with so little reserve and veracity, that “I should as soon depend," says the author of the Rambler, " upon an acquittal at the Old Bailey, by way of "recommendation of a servant's honesty, as upon one of these "characters." It is sometimes carelessness; and sometimes also to get rid of a bad servant without the uneasiness of a dispute; fo which nothing can he pleaded but the most ungenerous of all cuses, that the person we deceive is a stranger.

There is a conduct the reverse of this, but more injurious

cause the injury falls where there is no remedy; I mean the obstructing of a servant's advancement, because you are unwilling to spare his service. To stand in the way of your servant's interest, is a poor return for his fidelity; and affords slender encouragement for good behaviour in this numerous and therefore important part of community. It is a piece of injustice which, if practised towards an equal, the law of honour would lay hold of; as it is, it is neither uncommon nor disreputable.

A master of a family is culpable, if he permit any vices among his domestics, which he might restrain by due discipline, and a proper interference. This results from the general obligation to prevent misery when in our power; and the assurance which we have, that vice and misery at the long run go together. Care to maintain in his family a sense of virtue and religion, received the Divine approbation in the person of ABRAHAM, Gen. xviii. 19.—“I know "him, that he will command his children, and his household after "him; and they shall keep the ways of the LORD, to do justice "and judgment." And indeed no authority seems so well adapted to this purpose, as that of masters of families; because none operates upon the subjects of it with an influence so immediate and constant.

What the Christian Scriptures have delivered concerning the relation and reciprocal duties of masters and servants, breathes a spirit of liberality, very little known in ages when servitude was slavery; and which flowed from a habit of contemplating mankind under the common relation in which they stand to their Creator, and with respect to their interest in another existence.* "Ser"vants, be obedient to them that are your masters according to the "flesh, with fear and trembling; in singleness of your heart, as "unto Christ; not with eye-service, as men-pleasers, but as the servants of Christ, doing the will of God from the heart; with good will, doing service as to the Lord, and not to men: knowing “that whatsoever good thing any man doeth, the same shall he re"ceive of the LORD, whether he be bond or free. And ye masters, "do the same thing unto them, forbearing threatening; knowing That your Master also is in heaven; neither is there respect of ersons with him." The idea or referring their service to God, considering him as having appointed them their task, that they ere doing his will, and were to look to him for their reward, was new; and affords a greater security to the master than any inferior rinciple, because it tends to produce a steady and cordial obedi

* Eph. vi. 5-9

ence, in the place of that constrained service, which can never be trusted out of sight, and which is justly enough called eye-service. The exhortation to masters, to keep in view their own subjection and accountableness, was no less reasonable.

CHAPTER XII.

CONTRACTS OF LABOUR.
COMMISSIONS.

WHOEVER undertakes another man's business, makes it his own, that is, promises to employ upon it the same care, attention, and diligence, that he would do if it were actually his own; for he knows that the business was committed to him with that expectation. And he promises no more than this. Therefore an agent is not obliged to wait, inquire, solicit, ride about the country, toil, or study, whilst there remains a possibility of benefitting his employer. If he exert so much of his activity, and use such caution, as the value of the business, in his judgment, deserves; that is, as he would have thought sufficient if the same interest of his own had been at stake, he has discharged his duty, although it should afterwards turn out, that by more activity, and longer perseverance, he might have concluded the business with greater advantage.

This rule defines the duty of factors, stewards, attornies, and advocates.

One of the chief difficulties of an agent's situation is, to know how far he may depart from his instructions, when he sees reason to believe, from some change or discovery in the circumstances of his commission, that his employer, if he were present, would alter his intention. The latitude allowed to agents in this respect, will be different, according as the commission was confidential or ministerial; and according as the general rule and nature of the service require a prompt and precise obedience to orders, or not. An attorney sent to treat for an estate, if he found out a flaw in the title, would desist from proposing the price he was directed to propose ; and very properly. On the other hand, if the commander-in-chief of an army detach an officer under him upon a particular service, which service turns out more difficult, or less expedient, than was supposed, insomuch that the officer is convinced that his commander, if he were acquainted with the true state in which the affair is found, would recall his orders; yet, if he cannot wait for fresh directions

without prejudice to the expedition he is sent upon, he must, at all hazards, pursue those which he brought out with him.

What is trusted to an agent, may be lost or damaged in his hands by misfortune. An agent who acts without pay is clearly not answerable for the loss; for if he give his labour for nothing, it cannot be presumed that he gave also security for the success of it. If the agent be hired to the business, the question will depend upon the apprehension of the parties at the time of making the contract; which apprehension of theirs must be collected chiefly from custom, by which probably it was guided. Whether a public carrier ought to account for goods sent by him; the owner or master of a ship for the cargo; the post-office for letters, or bills enclosed in letters, where the loss is not imputed to any fault or neglect of theirs, are questions of this sort. Any expression, which by implication amounts to a promise, will be binding upon the agent, without custom; as where the proprietors of a stage-coach advertise that they will not be accountable for money, plate, or jewels, this makes them accountable for every thing else; or where the price is too much for the labour, part of it may be considered as premium for insurance. On the other hand, any caution on the part of the owner to guard against danger, is evidence that he considers the risk to be his; as cutting a bank-bill in two, to send by post at different times.

Universally, unless a promise, either express or tacit, can be proved against the agent, the loss must fall upon the owner.

The agent may be a sufferer in his own person or property by the business which he undertakes; as where one goes a journey for another, and lames his horse by a fall upon the road, or is hurt himself, can the agent in such a case claim a compensation for the misfortune? Unless the same be provided for by express stipulation, the agent is not entitled to any compensation from his employer on that account; for where the danger is not foreseen, there can be no reason to believe that the employer engaged to indemnify the agent against it, much less where it is foreseen; for whoever knowingly undertakes a dangerous employment, in common construction, takes upon himself the danger and consequences; as where a fireman undertakes for a reward to rescue a box of writings from the flames, or a sailor to bring off a passenger from a ship in a storm,