ride upon, and you go a hunting with him, or leap him over hedges, or put him in your cart, or carriage, and he be strained, or staked, or galled, or accidentally hurt, or drop down dead, whilst you are thus using him; you must make satisfaction to the

owner.

The two cases are distinguished by this circumstance, that in one case, the owner foresees the damage or risk, and therefore consents to undertake it; in the other case he does not.

It is possible that an estate or a house, may, during the term of a lease, be so increased or diminished in its value, as to become worth much more, or much less, than the rent agreed to be paid for it. In some of which cases, it may be doubted, to whom, of natural right, the advantage or disadvantage belongs. The rule of justice seems to be this: if the alteration might be expected by the parties, the hirer must take the consequence; if it could not, the owner. An orchard, or a vineyard, or a mine, or a fishery, or a decoy, may this year yield nothing, or next to nothing, yet the tenant shall pay his rent; and if the next year produce tenfold the usual profit, no more shall be demanded; because the produce is in its nature precarious, and this variation might be expected. If an estate in the fens of Lincolnshire, or the isle of Ely, be overflowed with water, so as to be incapable of occupation, the tenant, notwithstanding, is bound by his lease; because he entered into it with a knowledge and foresight of this danger. On the other hand, if by the irruption of the sea into a country where it was never known to have come before, by the change of the course of a river, the fall of a rock, the breaking out of a volcano, the bursting of a moss, the incursions of an enemy, or by a mortal contagion amongst the cattle; if by means like these, an estate change, or lose its value, the loss shall fall upon the owner; that is, the tenant shall either be discharged from his agreement, or be entitled to an abatement of rent. A house in London, by the build

Contracts concerning the Lending of Money. 117

ing of a bridge, the opening of a new road or street, may become of ten times its former value; and, by contrary causes, may be as much reduced in value: here also, as before, the owner, not the hirer, shall be affected by the alteration. The reason upon which our determination proceeds, is this; that changes such as these being neither foreseen nor provided for, by the contracting parties, form no part or condition of the contract; and therefore ought to have the same effect as if no contract at all had been made (for none was made with respect to them) that is, ought to fall upon the owner.

CHAPTER X.

CONTRACTS CONCERNING THE LENDING OF MONEY.

THERE exists no reason in the law of nature, why a man should not be paid for the lending of his money, as well as of any other property into which the money might be converted.

*

The scruples that have been entertained upon this head, and upon the foundation of which, the receiv ing of interest or usury (for they formerly meant the same thing) was once prohibited in almost all Christian countries, arose from a passage in the law of MOSES, Deuteronomy, xxiii. 19, 20. "Thou shalt not lend upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury unto a stranger thou mayest lend upon usury, but unto thy brother thou fhalt not lend upon

usury.

This prohibition is now generally understood to have been intended for the Jews alone, as part of

By a statute of JAMES the First, interest above eight pounds per cent. was prohibited (and consequently under that rate allowed) with this sage provision: That this statute shall not be construed or expounded to allow the practice of usury in point of religion or conscience.

the civil or political law of that nation, and calcu lated to preserve amongst themselves that distribu tion of property, to which many of their institutions were subservient; as the marriage of an heiress with her own tribe; of a widow, who was left childless, to her husband's brother; the year of ju bilee, when alienated estates reverted to the family of the original proprietor-regulations, which were never thought to be binding upon any but the commonwealth of Israel.

This interpretation is coufirmed, I think, beyond all controversy, by the distinction made in the law, between a Jew and a foreigner, "unto a stranger thou mayest lend upon usury, but unto thy brother thou mayest not lend upon usury;" a distinction which could hardly have been admitted into a law which the divine Author intended to be of moral and of universal obligation.

The rate of interest has in most countries been regulated by law. The Roman law allowed of twelve pounds per cent. which Justinian reduced at one stroke to four pounds. A statute of the thirteenth year of Queen Elizabeth, which was the first that tolerated the receiving of interest in England at all, restrained it to ten pounds per cent.; a statute of James the First, to eight pounds; of Charles the Second, to six pounds; of Queen Anne, to five pounds, on pain of forfeiture of treble the value of the money lent; at which rate and penalty the matter now stands. The policy of these regulations is, to check the power of accumulating wealth without industry; to give encouragement to trade, by enabling adventurers in it to borrow money at a moderate price; and, of late years, to enable the state to borrow the subject's money itself.

Compound interest, though forbidden by the law of England, is agreeable enough to natural equity; for interest detained after it is due, becomes, to all intents and purposes, part of the sum lent.

It is a question which sometimes occurs, how money borrowed in one country ought to be paid in another, where the relative value of the precious metals is not the same. For example, suppose I borrow a hundred guineas in London, where each guinea is worth one and twenty shillings, and meet my creditor in the East Indies, where a guinea is worth no more perhaps than nineteen, is it a satisfaction of the debt to return a hundred guineas; or must I make up so many times one and twenty shillings? I should think the latter for it must be presumed, that my creditor, had he not lent me his guineas, would have disposed of them, in such a manner, as to have now had, in the place of them, so many one and twenty shillings; and the question supposes, that he neither intended, nor ought to be a sufferer, by parting with the possession of his money to me.

When the relative value of coin is altered by an act of the state, if the alteration would have extend-. ed to the identical pieces which were lent, it is enough to return an equal number of pieces of the same denomination, or their present value in any other. As if guineas were reduced by an act of parliament to twenty shillings, so many twenty shillings as I borrowed guineas, would be a just repayment. It would be otherwise, if the reduction was owing to a debasement of the coin; for then respect ought to be had to the comparative value of the old guinea and

the new..

Whoever borrows money is bound in conscience to repay it. This every man can see: but every man cannot see, or does not, however, reflect, that he is, in consequence, also bound to use the means necessary to enable himself to repay it. "If he pay the money when he has it, or has it to spare, he does all that an honest man can do," and all, he imagines, that is required of him; whilst the previous measures, which are necessary to furnish him

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with that money, he makes no part of his care, nor observes to be as much his duty as the other; such as selling a family seat, or a family estate, contracting his plan of expense, laying down his equipage, reducing the number of his servants, or any of those humiliating sacrifices, which justice requires of a man in debt, the moment he perceives that he has no reasonable prospect of paying his debts without them. An expectation, which depends upon the continuance of his own life, will not satisfy an honest man, if a better provision be in his power: for it is a breach of faith to subject a creditor, when we can help it, to the risk of our life, be the event what it will; that not being the security to which credit was given.

I know few subjects which have been more misunderstood than the law which authorizes the imprisonment of insolvent debtors. It has been represented as a gratuitous cruelty, which contributed nothing to the reparation of the creditor's loss, or to the advantage of the community. This prejudice arises principally from considering the sending of a debtor to jail, as an act of private satisfaction to the creditor, instead of a public punishment. As an act of satisfaction or revenge, it is always wrong in the motive, and often intemperate and undistinguishing in the exercise. Consider it as a public punishment, founded upon the same reason, and subject to the same rules, as other punishments; and the justice of it, together with the degree to which it should be extended, and the objects upon whom it may be inflicted, will be apparent. There are frauds relating to insolvency, against which it is as necessary to provide punishment, as for any public crimes whatever; as where a man gets your money into his possession, and forthwith runs away with it; or what is little better, squanders it in vicious expenses; or stakes it at the gaming table; in the alley; or upon wild adventures in trade; or is conscious at the time he borrows it, that he can never repay it; or wilfully