110 LENDING OF INCONSUMABLE PROPERTY. 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 the 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, the 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 building 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 forseen 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 receiving 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 shalt "not lend upon usury.” This prohibition is now generally understood to have been intended for the Jews alone, as part of the civil or political law of their nation, and calculated to preserve that distribution of property to which many of their institutions were subservient; as the marriage of an heiress within her own tribe of a widow who was left childless, to her husband's brother; the year of jubilee, 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. ; * 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 19 allow the practice of usury in point of religion or conscience. This interpretation is confirmed, 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 fent 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 his money to me. When the relative value of coin is altered by an act of the state, if the alteration would have extended to the identical pieces which were lent, it is enough to return an equal number of the same denomination, or their present value in any other. As, if guineas were reduced by act of parliament to twenty shillings, so many twenty shillings, as I borrowed guineas, would be a just re-payment. 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 neces sary to furnish him with the 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 contributes 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 gaol, 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 puts it out of his power, by profuse living; or conceals his effects, or transfers them by collusion to another not to mention the obstinacy of some debtors, who had rather rot in a gac', 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 discretionary power can overtake them; and that no discretion is likely to be so well informed, so vigilant, and so active, as that of the creditor. : It must be remembered, however, that the confinement of a debtor in a gaol 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 miscarriage to which all human affairs are subject, have reduced to ruin, mere |