In fpeculations in trade, or in the ftocks, if I exercise my judgment upon the general afpect and pofture of public affairs, and deal with a perfon 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 secrets of state at home, or private advice of fome decifive measure or event abroad, I cannot avail myfelf 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 risk entirely from the account given by the perfon infured, it is abfolutely neceffary to the justice and validity of the contract, that this account be exact and complete,

CHAP,

WH

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

The queftions 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 ufe 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 horse 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 muft make it good, as if the coach be overturned or broken to pieces by the careleffness 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 into your cart, or carriage, and he be ftrained, or staked, or galled, or accidentally hurt, or drop down dead, whilft you are thus ufing him; you must make fatisfaction to the owner.

The two cafes are diftinguished by this circumstance, that in one cafe, the owner forefees the damage

mage or risk, and therefore confents to undertake it, in the other case, he does not.

It is poffible that an estate or a house may, during the term of a leafe, be fo 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 disadvantage 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 they next year produce ten-fold the utual profit, no more fhall be demanded; becaufe the produce is in its nature precarious, and this variation might be expected If an eftate 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 course of a river, the fall of a rock, the breaking out of a volcano, the bursting of a mound, 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 difcharged from his agreement, or be entitled to an abatement of rent. A houfe in London, by the building of a bridge, the opening of a new road or ftreet, 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, fhall be affected by the alteration. The reafon upon which our determination proceeds is this, that changes fuch as thefe, being neither foreseen, nor provided for by the contracting

parties,

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 respect to them) that is, ought to fall upon the

TH

HERE exifts no reafon 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 fcruples that have been entertained upon this head, and upon the foundation of which, the receiving of intereit or ufury (for they formerly meant the fame thing) was once prohibited in almost all Chrif tian countries,* arose from a paffage in the law of MOSES, Deuteronomy xxiii, 19, 20, "Thou shalt not "lend upon ufury to thy brother; ufury of money, "ufury of victuals, ufury of any thing, that is lent upon ufury unto a ftranger thou mayeft lend up“on ufury; but unto thy brother thou shalt not lend upon ufury."

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 shall not be conftrued or expounded to allow the practice of ufury in point of religion or confcience.

This prohibition is now generally understood to have been intended for the Jews alone, as part of the civil or political law of that nation, and calculated to preferve amongst themselves that diftribution of pro. perty, to which many of their inftitutions were fubfervient, 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 Ifrael.

This interpretation is confirmed, I think, beyond all controversy, by the diftinction made in the law, between a Jew and a foreigner, "unto a stranger "thou mayeft lend upon ufury, but unto thy bro"ther, 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 most 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 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 induftry; 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 fubject's money itself.

Compound intereft, though forbidden by the law of England, is agreeable enough to natural equity;

for