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the obstinacy of fome debtors, who had rather rot in a jail, than deliver up their estates ; 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 of an exasperated creditor ; for which it may be said, that these frauds are so subtile and versatile, that nothing but a discretionary power can overtake them; and that no discretion is likely to be so well informed, fo vigilant, or so active, as that of the creditor.
It must be remembered, however, that the confinement of a debtor in 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 inflia, is repugnant not only to humanity, but to juftice ; for it is to pervert a provision of law, designed for a different and a falutary purpose, to the gratification of private spleen and resent
ment. 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 thoufand should be sent to jail by his creditor, than that the nine hundred and ninety-nine should be ftraitened, and embarrassed, and many of them lie idle, by the want of credit.
C H A P. XI.
CONTRACTS OF LABOUR.
SERVICE in this country is, as it ought to
be, voluntary, and by contract; and the master's authority extends no farther 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 cultom of the country in like cases.
A servant is not bound to obey the unlawful commands of his master ; to minister, for in
stance, to his unlawful pleasures; or to assist him in unlawful practices in his profession; as in smuggling 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 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 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 M 4
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 inn-keeper's servant rob his guests, the inn-keeper must make restitution ; if a farrier's servant lame a horse, the farrier must answer for the damage ; and still farther, 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, 5 by way of recommendation of a servant's ho“ nesty, as upon one of these characters." It is sometimes carelessness; and sometimes also to