gling or adulterating the articles in which he deals. For the servant is bound by nothing but his own promise; and the obligation of a promise extends not to things unlawful.

for, to say the truth, the first absurdity is in the law itself, which leaves it in a debtor's power to withhold any part of his property from the claim of his creditors. The only question is, whether the punishment be properly placed in the hands For the same reason, the master's authority is of an exasperated creditor: for which it may be no justification of the servant in doing wrong; said, that these frauds are so subtile and versatile, for the servant's own promise, upon which that that nothing but a discretionary power can over-authority is founded, would be none. take them; and that no discretion is likely to be so well informed, so vigilant, or so active, as that of the creditor.

Clerks and apprentices ought to be employed entirely in the profession or trade which they are intended to learn. Instruction is their hire; 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 it is not to receive money. Upon the same principle, if I once send a servant to take up goods upon 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.

It must be remembered, however, that the confinement of a debtor in a jail 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 miscarriages 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 pervert a provision of law, designed for a different and a 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, The law of this country goes great lengths in under colour of relieving the poor, would increase intending a kind of concurrence in the master, so their hardships. For whatever deprives the cre- as to charge him with the consequences of his ditor of his power of coercion, deprives him of his servant's conduct. If an inn-keeper's servant rob security; and as this must add greatly to the dif- his guests, the inn-keeper must make restitution; ficulty of obtaining credit, the poor, especially the if a farrier's servant lame a horse, the farrier must lower sort of tradesmen, are the first who would answer for the damage; and still further, if your suffer by such a regulation. As tradesmen must coachman or carter drive over a passenger in the buy before they sell, you would exclude from trade road, the passenger may recover from you a satistwo thirds of those who now carry it on, if none faction for the hurt he suffers. But these deterwere enabled to enter into it without a capital suf-minations stand, I think, rather upon the authority ficient 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 jail by his creditors, than that the nine hundred and ninetynine 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.

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; for which nothing can be pleaded but the most ungenerous of all excuses, that the person whom we deceive is a stranger.

There is a conduct the reverse of this, but more injurious, because 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 the community. It is a piece of injustice which, if practiced 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 A servant is not bound to obey the unlawful any vices among his domestics, which he might commands of his master; to minister, for instance, restrain by due discipline, and a proper interto his unlawful pleasures; or to assist him by un- ference. This results from the general obligation lawful practices in his profession; as in smug-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 way 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.

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

One of the chief difficulties of an agent's situation is, to know how far he may depart from his instructions, when, from some change or discovery in the circumstances of his commission, he sees reason to believe 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 What the Christian Scriptures have delivered prompt and precise obedience to orders, or not. concerning the relation and reciprocal duties of An attorney, sent to treat for an estate, if he masters and servants, breathes a spirit of liberality, found out a flaw in the title, would desist from very little known in ages when servitude was proposing the price he was directed to propose; slavery; and which flowed from a habit of con- and very properly. On the other hand, if the templating mankind under the common relation commander-in-chief of an army detach an officer in which they stand to their Creator, and with under him upon a particular service, which serrespect to their interest in another existence;*vice turns out more difficult, or less expedient, "Servants, be obedient to them that are your than was supposed; insomuch that the officer is masters, according to the flesh, with fear and trem- convinced, that his commander, if he were acbling; in singleness of your heart, as unto Christ; quainted with the true state in which the affair is not with eye-service, as men-pleasers, but as the found, would recall his orders; yet must this servants of Christ, doing the will of God from the officer, if he cannot wait for fresh directions withheart; with good will, doing service as to the out prejudice to the expedition he is sent upon, Lord, and not to men; knowing that whatsoever pursue at all hazards, those which he brought out good thing any man doeth, the same shall he re- with him. 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 persons with him." The idea of referring their service to God, of considering him as having appointed them their task, that they were 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 principle, because it tends to produce a steady and cordial obedience, 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 accountable-ters, where the loss is not imputed to any fault or ness, was no less seasonable.

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 nothing
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
benefiting 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 dis-
charged his duty, although it should afterwards
turn out, that by more activity, and longer perse-
verance,
he might have concluded the business
with greater advantage.

Eph. vi. 5-9.

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 his 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 let

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 a premium for insurance. On the other hand, any caution on the part of the owner to guard risk to be his: as cutting a bank-bill in two, to against danger, is evidence that he considers the send by the 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, or is hurt himself by a fall upon the road; 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: still less where it is foreseen: for whoever knowingly undertakes a dangerous

OFFICES.

employment, in common construction, takes upon himself the danger and the consequences; as where a fireman undertakes for a reward to rescue a box of writing from the flames; or a sailor to bring off a passenger from a ship in a storm.

CHAPTER XIII.

Contracts of Labour.

PARTNERSHIP.

I KNOW nothing upon the subject of partnership that requires explanation, but in what manner the profits are to be divided, where one partner contributes money, and the other labour; which is a

common case.

Rule. From the stock of the partnership deduct the sum advanced, and divide the remainder between the monied partner and the labouring partner, in the proportion of the interest of the money to the wages of the labourer, allowing such a rate of interest as money might be borrowed for upon the same security, and such wages as a journeyman would require for the same labour

and trust.

Example. A. advances a thousand pounds, but knows nothing of the business; B. produces no money, but has been brought up to the business. and undertakes to conduct it. At the end of the year, the stock and the effects of the partnership amount to twelve hundred pounds; consequently there are two hundred pounds to be divided.Now, nobody would lend money upon the event of the business succeeding, which is A's security, under six per cent.;-therefore A. must be allowed B, sixty pounds for the interest of his money. before he engaged in the partnership, earned thirty pounds a year in the same employment; his labour, therefore, ought to be valued at thirty pounds: and the two hundred pounds must be divided between the partners in the proportion of sixty to thirty; that is, A. must receive one hundred and thirty-three pounds six shillings and eight pence, and B. sixty-six pounds thirteen shillings and four pence.

If there be nothing gained, A. loses his interest, and B. his labour; which is right. If the original stock be diminished, by this rule B. loses only his labour, as before; whereas A. loses his interest, and part of the principal; for which eventual disadvantage A. is compensated, by having the interest of his money computed at six per cent. in the division of the profits, when there are any.

there is a two-fold contract; one with the founder,
the other with the electors.

The contract with the founder obliges the in-
cumbent of the office to discharge every duty
appointed by the charter, statutes, deed of gift, or
will of the founder; because the endowment was
given, and consequently accepted, for that purpose,
and upon those conditions.

The contract with the electors extends this obligation to all duties that have been customarily connected with and reckoned a part of the office, though not prescribed by the founder; for the electors expect from the person they choose, all the duties which his predecessors have discharged; and as the person elected cannot be ignorant of their expectation, if he meant to have refused this condition, he ought to have apprised them of his objection.

And here let it be observed, that the electors can excuse the conscience of the person elected, from this last class of duties alone; because this class results from a contract to which the electors and the person elected are the only parties.— The other class of duties results from a different contract.

It is a question of some magnitude and difficulty, what offices may be conscientiously supplied by a deputy.

We will state the several objections to the substitution of a deputy; and then it will be understood, that a deputy may be allowed in all cases to which these objections do not apply.

An office may not be discharged by deputy,

1. Where a particular confidence is reposed in the judgment and conduct of the person appointed to it; as the office of a steward, guardian, judge, commander-in-chief by land or sea.

2. Where the custom hinders; as in the case of schoolmasters, tutors, and of commissions in the army or navy.

3. Where the duty cannot, from its nature, be so well performed by a deputy; as the deputygovernor of a province may not possess the legal authority, or the actual influence, of his principal.

4. When some inconveniency would result to the service in general from the permission of deputies in such cases: for example, it is probable that military merit would be much discouraged, if the duties belonging to commissions in the army were generally allowed to be executed by substitutes.

The non-residence of the parochial clergy, who supply the duty of their benefices by curates, is worthy of a more distinct consideration. And in It is true that the division of the profit is seldom order to draw the question upon this case to a forgotten in the constitution of the partnership, point, we will suppose the officiating curate to and is therefore commonly settled by express discharge every duty which his principal, were he agreements: but these agreements, to be equit-present, would be bound to discharge, and in a able, should pursue the principle of the rule here laid down.

All the partners are bound to what any one of them does in the course of the business; for, quoad hoc, each partner is considered as an authorised agent for the rest.

CHAPTER XIV.
Contracts of Labour.

OFFICES.

In many offices, as schools, fellowships of colleges, professorships of nniversities, and the like,

H

manner equally beneficial to the parish: under which circumstances, the only objection to the absence of the principal, at least the only one of the foregoing objections, is the last.

And, in my judgment, the force of this objection will be much diminished, if the absent rector or vicar be, in the meantime, engaged in any function or employment of equal, or of greater, importance to the general interest of religion. For the whole revenue of the national church may properly enough be considered as a common fund for the support of the national religion; and if a clergyman be serving the cause of christianity and protestantism, it can make little difference, out of

what particular portion of this fund, that is, by a letter, a servant's denying his master, a prisonthe tithes and glebe of what particular parish, his er's pleading not guilty, an advocate asserting the service be requited; any more than it can pre- justice, or his belief of the justice of his client's judice the king's service that an officer who has cause. In such instances, no confidence is designalised his merit in America, should be re-stroyed, because none was reposed; no promise warded with the government of a fort or castle in Ireland, which he never saw; but for the custody of which, proper provision is made, and care taken.

Pious frauds, as they are improperly enough called, pretended inspirations, forged books, counterfeit miracles, are impositions of a more serious nature. It is possible that they may sometimes, though seldom, have been set up and encouraged, with a design to do good: but the good they aim at, requires that the belief of them should be perpetual, which is hardly possible; and the detec-occasions, was the custom to slay a victim; and tion of the fraud is sure to disparage the credit of all pretensions of the same nature. Christianity has suffered more injury from this cause, than from all other causes put together.