Images de page

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, 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 jail by his creditors, than that the nine-hundredand-ninety-nine should be straitened and embarrassed, and many of them lie idle, by the want of credit.

[The following passage on Insolvency occurs in Mr J. S. Mill's work already quoted:

The law is bound to take care that insolvency shall not be a good pecuniary speculation; that men shall not have the privilege of hazarding other people's property without their knowledge or consent-taking the profits of the enterprise if it is successful, and if it fails, throwing the loss upon the lawful owners; that they shall not find it answer to make themselves unable to pay their just debts, by spending the money of their creditors in personal indulgence. The humanitarians do not deny that what is technically called fraudulent bankruptcy, the false pretence of inability to pay, may reasonably, when detected, be subject to punishment. But does it follow that insolvency is not the consequence of misconduct because the inability to pay may be real? If a man has been a spendthrift, or a gambler, with property on which his creditors had a prior claim, shall he pass scotfree because the mischief is consummated and the money gone? Is there any very material difference between this conduct and those other kinds of dishonesty which go by the names of fraud and embezzlement ?

“ By

Such cases are not a minority, but a large majority among insolvencies. The statistics of bankruptcy prove the fact. far the greater part of all insolvencies arise from notorious misconduct ; the proceedings of the Insolvent Debtors Court and of the Bankruptcy Court will prove it. Excessive and unjustifiable overtrading, or most absurd speculation in commodities, merely because the poor speculator 'thought they would get up,' but why he thought so he cannot tell; speculations in hops, in tea, in silk, in corn-things with which he is altogether unacquainted; wild and absurd investments in foreign funds, or in joint-stocks: these are among the most innocent causes of bankruptcy.” The experienced and intelligent writer from whom I quote, corroborates his assertion by the testimony of several of the official assignees of the Bankruptcy Court. One of them says: “As far as I can collect from the books and documents furnished by the bankrupts, it seems to me that,” in the whole number of cases which occurred during a given time in the court to which he was attached, "fourteen have been ruined by speculations in things with which they were unacquainted; three, by neglected book-keeping; ten, by trading beyond their capital and means, and the consequent loss and expense of accommodation-bills; forty-nine, by expending more than they could reasonably hope their profits would be, though their business yielded a fair return; none by any general distress, or the falling off of any particular branch of trade.” Another of these officers says: The new court has been open upwards of eighteen months, during which period fifty-two cases of bankruptcy have come under my care. It is my opinion, that thirty-two of these have arisen from an imprudent expenditure, and five partly from that cause and partly from a pressure on the business in which the bankrupts were employed. Fifteen I attribute to improvident speculations, combined in many instances with an extravagant mode of life.”

"To these citations, the author adds the following statements from his personal means of knowledge, which are considerable :“ Many insolvencies are produced by tradesmen's indolence; they keep no books, or at least imperfect ones, which they never balance; they never take stock; they employ servants, if their trade be extensive, whom they are too indolent even to supervise, and then become insolvent. It is not too much to say, that onehalf of all the persons engaged in trade, even in London, never take stock at all: they go on year after year without knowing how their affairs stand, and at last, like the child at school, they find to their surprise but one half-penny left in their pocket. I will venture to say, that not one-fourth of all the persons in the provinces, either manufacturers, tradesmen, or farmers, ever take stock; nor, in fact, does one-half of them ever keep account-books deserving any other name than memorandum-books. I know sufficient of the concerns of five hundred small tradesmen in the provinces, to be enabled to say, that not one-fifth of them ever take stock, or keep even the most ordinary accounts. I am prepared to say of such tradesmen, from carefully prepared tables, giving every advantage where there has been any doubt as to the causes of their insolvency, that where nine happen from extravagance or dishonesty, one at most “may be referred to misfortune alone."

• Is it rational to expect among the trading classes any high sense of justice, honour, or integrity, when the law enables men who act in this manner to shuffle off the consequences of their misconduct upon those who have been so unfortunate as to trust them; and practically proclaims that it looks upon insolvency thus produced as a “misfortune,” not an offence ?']

[ocr errors]



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 by 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 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 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

[ocr errors]


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 eyeservice, as menpleasers; 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 receive of the LORD, whether he be bond or free. And, ye masters, do the same things 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.


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

Eph. vi. 5-9.

« PrécédentContinuer »