of the ftake, if he please, and the other party may juftly accept it if it be given him; much more therefore may one give to the other a part of the stake; or, what is exactly the fame thing, an advantage in the chance of winning the whole.

The proper reftriction is, that neither fide have an advantage, by means of which the other is not aware: for this is an advantage taken, without being given. Although the event be still an uncertainty, your advantage in the chance has a certain value; and fo much of the stake, as that value amounts to, is taken from your adverfary without his knowledge, and therefore without his confent. If I fit down to a game at whift, and have an advantage over the adverfary, by means of a better memory, clofer atten-. tion, or fuperior knowledge of the rules and chances of the game, the advantage is fair; because it is obtained by means of which the adverfary is aware; for he is aware, when he fits down with me, that I fhall exert the fkill that I poffefs, to the utmoft. But if I gain an advantage by packing the cards, glancing my eye into the adverfary's hands, or by concerted fignals with my partner, it is a dishoneft advantage; because it depends upon means, which the adversary never fufpects that I make ufe of.

The fame diftinction holds of all contracts, into which chance enters. If I lay a wager at a horfe race, founded upon the conjecture I form from the appearance, and character, and breed of the horse, I am juftly entitled to any advantage which my judg ment gives me; but, if I carry on a clandeftine correfpondence with the jockies, and find out from them, that a trial has been actually made, or that it is fettled beforehand which horfe fhall win the race; all fuch information is fo much fraud, because derived from fources, which the other did not suspect, when he propofed or accepted the wager.

In fpeculations in trade, or in the ftocks, if I exercife my judgment upon the general afpect and pofture of public affairs, and deal with a person who conducts

himself by the fame fort of judgment; the contract has all the equality in it which is neceffary; but if I have access to fecrets of state at home, or private advice of fome decifive measure or event abroad, I cannot avail myself of these advantages with juftice, because they are excluded by the contract, which proceeded upon the fuppofition, that I had no fuch advantage.

In infurances, in which the underwriter computes his rifk entirely from the account given by the perfon insured, it is abfolutely neceflary to the juftice and validity of the contract, that this account be exact and complete.

Chapter IX.

CONTRACTS OF LENDING OF INCONSUMABLE PROPERTY.

WHEN the identical loan is to be returned, as a book, a horse, a harpfichord, it is called incon fumable, in oppofition to corn, wine, money, and thofe things which perish, or are parted with in the ufe, and can therefore only be reftored in kind.

The questions under this head are few and fimple. The first is, if the thing lent be loft or damaged, who ought to bear the lofs or damage? If it be damaged by the use, or by accident, in the use for which it was lent, the lender ought to bear it; as if I hire a job coach, the wear, tear, and foiling of the coach, muft belong to the lender; or a horfe to go a particular journey, and in going the propofed journey, the horse die, or be lamed, the lofs must be the lender's on the contrary, if the damage be occafioned by the fault of the borrower, or by accident in fome ufe for which it was not lent, then the borrower must make it good; as if the coach be overturned or broken to pieces by the carelessness of your coachman; or the horse be hired to take a morning's

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 ftrained, or staked, or galled, or accidentally hurt, or drop down dead, whilst you are thus ufing him; you must make fatisfaction to the

owner.

The two cafes are diftinguished by this circumftance, that in one cafe, the owner forefees the damage or risk, and therefore confents to undertake it; in the other cafe he does not.

It is poffible 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 lefs, than the rent agreed to be paid for it. In fome of which cafes, it may be doubted, to whom, of natural right, the advantage or difadvantage belongs. The rule of juftice feems to be this: if the alteration might be expected by the parties, the hirer muft take the confequence; 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 fhall pay his rent; and if the next year produce tenfold the ufual profit, no more fhall be demanded; because the produce is in its nature precarious, and this variation might be expect. ed. If an estate in the fens of Lincolnshire, or the ifle of Ely, be overflowed with water, fo as to be incapable of occupation, the tenant, notwithstanding, is bound by his leafe; because he entered into it with a knowledge and forefight of this danger. On the other hand, if by the irruption of the fea into a country where it was never known to have come before, by the change of the courfe of a river, the fall of a rock, the breaking out of a volcano, the bursting of a mofs, the incurfions of an enemy, or by a mortal contagion amongst the cattle; if by means like thefe, an eftate change, or lofe its value, the lofs fhall fall upon the owner; that is, the tenant fhall either be discharged from his agreement, or be entitled to an abatement of rent. A houfe 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 caufes, may be as much reduced in value: here alfo, as before, the owner, not the hirer, shall be affected by the alteration. The reafon upon which our determination proceeds, is this; that changes fuch 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 fame effect as if no contract at all had been made (for none was made with refpect to them) that is, ought to fall upon the owner.

Chapter X.

CONTRACTS CONCERNING THE LENDING OF MONEY.

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

The fcruples that have been entertained upon this head, and upon the foundation of which, the receiving of intereft or ufury (for they formerly meant the fame thing) was once prohibited in almoft all Christian countries,* arofe from a paffage in the law of Moses, Deuteronomy, xxiii. 19, 20. "Thou fhalt MOSES, not lend upon ufury to thy brother; ufury of moncy, ufury of victuals, ufury of any thing that is lent upon ufury: unto a ftranger thou mayeft lend upon ufury, but unto thy brother thou shalt not lend upon ufury."

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

By a ftatute of JAMES the First, interest above eight pounds per cent. was prohibited (and confequently under that rate allowed) with this fage provifion: That this ftatute fhall not be conftrued or expounded to allow the practice of ufury in point of religion or confcience.

the civil or political law of that nation, and calculated to preserve amongst themselves that distribution of property, to which many of their inftitutions were fubfervient; as the marriage of an heirefs with her own tribe; of a widow, who was left childless, to her husband's brother; the year of jubilee, when alienated eftates reverted to the family of the original proprietor-regulations, which were never thought to be binding upon any but the commonwealth of Ifrael.

This interpretation is confirmed, I think, beyond all controverfy, by the diftinction made in the law, between a Jew and a foreigner, "unto a ftranger thou mayeft lend upon ufury, but unto thy brother thou mayeft not lend upon ufury;" a diftinction which could hardly have been admitted into a law which the divine Author intended to be of moral and of univerfal obligation.

The rate of intereft has in moft countries been regulated by law. The Roman law allowed of twelve pounds per cent. which Juftinian reduced at one ftroke to four pounds. A ftatute of the thirteenth year of Queen Elizabeth, which was the first that tolerated the receiving of intereft in England at all, reftrained it to ten pounds per cent. ; a ftatute of James the First, to eight pounds; of Charles the Second, to fix 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 ftands. The policy of thefe 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 ftate to borrow the fubjects' money itself.

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