CHAPTER IX. CONTRACTS OF LENDING OF INCONSUMABLE PROPERTY. WHEN the identical loan is to be returned, as a book, a horse, a harpsichord, it is called inconsumable; in opposition to corn, wine, money, and those things which perish, or are parted with, in the use, and can therefore only be restored in kind. The questions under this head are few and simple. The first is, if the thing lent be lost or damaged, who ought to bear the loss 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 soiling, of the coach, must belong to the lender; or a horse, to go a particular journey, and in going the proposed journey, the horse die, or be lamed, the loss must be the lender's: on the contrary, if the damage be occasioned by the fault of the borrower, or by accident in some use 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 into 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. 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 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 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 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 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. clusion that therefore science, or art, is uninteresting. If otherwise, chemistry, natural history, &c. must be dull studies. Perhaps no branch of our law is distinguished by more accurate reasoning, or more luminous equitable distinc tions than that of insurances; and references might be made to decisions recorded in our legal reports, equally distinguished for their beauty as literary compositions, aud for their moral accuracy.-ED. M M 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 that nation, and calculated to preserve amongst themselves 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. 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 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 subjects' 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 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. Since Paley wrote, an evident inclination has been steadily increasing in this country entirely to do away with the usury laws, and several attempts have in fact been fruitlessly made to effect this by an act of parliament. In 1834, however, a very serious blow was given to them by the 3rd & 4th William IV., c. 98, s. 7, which exempted from their operation all bills of exchange or promissory notes, not having more than three months to run; and this exemption, in 1837, by the 1st Victoria, c. 80, was still farther extended to bills, &c., not having more than twelve months to run; and by these acts even a bond given to secure the payment of such bills, is not considered by the courts as subject to the usury laws; see Connop v. Meaks, 2 Adolphus and Ellis Rep. 326; so that, provided a bill is given for the loan of money, any interest is now legally receivable by the lender, but then the bill must be his only security; for if he also receives goods as a pledge for the payment of the money thus advanced, at more than five per cent. interest, the goods are recoverable from him by an action of Trover; see Hargreaves v. Hutchinson, 2 Adolphus and Ellis Rep. p. 12. The usury laws have hitherto only been thus relaxed in favour of trade, to which the common and statute law of England very wisely leans on every practicable occasion.-ED. For ex paid in another, where the relative value of the precious metals is not the same. ample, suppose I borrowed 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 extended 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 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 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 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 jail, 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 a discretionary power can overtake them; and that no discretion is likely to be so well informed, so vigilant, or so active, as that of the creditor. It must be remembered, however, that the confinement of a debtor in jail 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 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 hundred and ninety-nine should be straitened and embarrassed, and many of them lie idle, by the want of credit *. / CHAPTER XI. CONTRACTS OF LABOUR. SERVICE. SERVICE in this country is, as it ought to be, voluntary, and by contract; and the master's authority extends no farther 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 their 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 The only possible utility of imprisonment for debt is, its acting as a check upon persons incurring debts unnecessarily and fraudulently. To imprison a debtor who has become insolvent through misfortune, is cruel and impolitic; but as a punishment to the knavish, and as a keeping Irim in pledge, as it were, until he has discovered and yielded up all his property, to satisfy the just claims of his creditors, it is scarcely objectionable. Formerly the landed property of an insolvent was not liable for the payment of his debts, but this injustice has been removed by later acts of parliament; and there needs but two great improvements in our law of insolvency, a power in the creditor, under the direction of the judge, to seize the property of the debtor, whether he consents or not; and secondly, the means to the honest debtor of obtaining his liberty the instant he can make it appear that he has made a full disclosure of all that he possesses.-ED. 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 farther, 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 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 t. "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 eye-service, as men-pleasers, 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 thing 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. The object to be attained by the law is the safety of the public; and this is certainly considered in making a imaster responsible for the acts of his servant done in pursuance of his duty. It makes a master careful to employ those who are trust-worthy. But it is to be observed, I am not responsible for the malicious acts of my servant; |