« AnteriorContinuar »
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 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 innkeeper's servant rob his guests, the innkeeper must make restitution; if a farrier's servant lame a 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 H
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 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 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.
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 *: “Servants, 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 réceive 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 accountableness, was no less seasonable.
CONTRACTS OF LABOUR.
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 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, 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 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 must this officer, if he cannot wait for fresh directions without prejudice to the expedition he is sent upon, pursue, at all hazards, those which he brought out with him.
* 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 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 postoffice 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 a 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 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 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 indem