of the wealthier Romans with the Commonalty as is to be seen in History to the no small Disturbance of that only then Infant Commonwealth let one Example suffice The horrid sight of a stout old Soldier scourg'd and gor'd with his own Blood for failure of Paying Interest at the Time prefix'd enrag'd the People to a furious Sedition The like perhaps may have passed among the Jews We have a kind of Precedent 4 King Chap. 4. Where the Widow to Elisha says Ecce creditor venit ut collat duos filios ad serviendum sibi Behold the Creditor is come to take away my two Sons to serve him Exorbitant Rigour for a Debt which considering the Condition of the Widow of a Poor Prophet was not probably very great Usages so cruel could not but excite a horror of Usurers even in such as by the Law of Nature govern'd themselves Use-Mony therefore was by the Romans in the 12 Tables stinted to 12 per Cent. then to 6 after to 3 and finally in the time of Gemutius Tribune to remove all occasions of like Encroachments a Prohibition of Use-Mony was Published in favour of the People No less was put in Execution by Agis the Spartan and not the Athenian General as some have it and ordering all the Accompt-Books of Usurers to be burnt in the Market-place Agesilaus applauding he had never seen a nobler Fire But the Prohibition among the Romans soon grew out of Date and tho' renewed by Caesar to ingratiate himself with the Commonalty yet putting out Mony at Use by Necessity was reviv'd in his Successor's Times growing to the extravagant Heighth of Cent. per Cent. if you may believe Accursius a Famous Civilian Cited by Sir Roger Twisden in his Preface As for my Part I question not but all Oppressions Exactions and Frauds exercised in the putting out Mony were included in Usury which may have been the Cause why in the Days of Old witness Cato Thieves were Condemn'd to the Double Usurers to the Quadruple To which Custom Peradventure the Saying of Zacheus might relate Luke 19. Reddo quadruplum you may see more in Covarruvias lib. 3. Variarum c. 1. n. 5. of the aversion even Heathens had to Usury This to have been the true and sole Notion of Usury as Prohibited was Calvin's Opinion with his Followers amongst which our two Knights allowing all Usury not render'd sinful by oppressing the Poor but against Reason It being no less Usury to take beyond what is due from any for the Use of Mony since Persons of Fortune tho' never so wealthy have Right to what is just I only infer That a commodious Rate in the common Judgment of all Parties can be no Usury taking Usury as hitherto describ'd from its Origin and express'd by its Names I come now to its strict Definition CHAP. III. The Definition of VSVRY SIr Robert Filmer sportsin his first Paragraph teazing Dr. Fenton and in him some others of the Church of England for their Definition of Vsury I cannot excuse the Dr. of some Confuseness For where a word may signify differently to take away Equivocation one should first distinguish and then define This Method I shall observe with the antient Divines These make a three-fold Division of Usury First it may be taken for a Gain which is Usurious 2dly For a Bargain upon such Gain 3dly For the Intention or Will of such a Bargain or Gain The First is term'd Actual Vsury The Second is Vsury express'd by Covenant The Third is Vsury purely Mental The two Latter derive their Malice from the First as being the Object of both all Promises or Intentions taking their Qualification from the Action Promised or Intended Wherefore refixing the Word Covenant or Will to the Definition of Actual Vsury all three will be Defin'd Thus. Vsury in the first Acceptance is a Gain immediately for Lending or for Mony Lent as Lent Divines generally Agree in it It 's said immediately for Lending or as Lent To exclude all other Titles of Lucre as Gratitude Friendship in the Borrower or other Considerations hereafter to be specified Gain therefore is the Genus by the Rest Vsury is differenced from other Acquisitions Hence of course follow the two other Definitions viz. The Second is a Covenant the Third is a Will or Purpose of Gain purely for Lending Sir Robert opposes thus Gain undoubtedly is a false Genus for certainly Vsury is a sin of Commission and therefore an Action of Opperation So that Lucre or Gain which is only a Passion or Product of Lending cannot be the Genus of it Answ How far Sir Robert's Skill exceeded in Law I know not His Logick certainly proves somewhat unfaithful to him It 's granted then that Vsury is a Sin of Commission and an Action of Operation if it so please him And so is Gain for Lending Neither is Gain formally and strictly speaking the immediate Product of Lending but of taking and it includes Active and Passive Active naming the Person Gaining Passive by naming the Interest Gain'd Gain then is an Acceptance of Interest exclude the Acceptance neither Lending nor Mony nor both together will make up Gain But not to be so scrupulous in Philosophy Grant Gain to be a Product of Lending it may be as well a Product of Selling or Letting why may not Gain then be drawn into a Genus in respect of the several ways of Gaining of which Gain by Lending is Usury He presses Lending for Gain is not Lending but Letting Besides the Gain is not for the Bare Act of Lending but Vsing the thing Lent that Men give Vsury Answ The instance being made in Dr. Fentons Words If I may believe the Knight brings him in guilty not only of Contradiction which Sir Robert urges upon him but of a very gross Error in Morality For if according to the Dr's Definition Vsury is a Covenant of Lucre for Lending and Lending for Lucre be Letting a Covenant for Letting by consequence is Usury A Position unheard of To the Difficulty Lending for Gain is no Letting but Lending and Lending and Letting essentially differ as will appear more hereafter Lending admits of no Recompence by way of Justice Letting do's I willingly yield to the Addition that Gain is not for the bare act of Lending but the Lending we speak of includes both Act and thing as affected by the Act of Lending For who Lends and lends nothing By Lending a thing the Use of it is given as it is not in Letting and for what is given to require Gain is Usury Towards the full Intelligence of the Definition it will not be amiss to open the two-fold Sense of the Word Lending express'd in Latin by two Verbs Mutuare and Commodare to Lend things not to be consum'd in the Use as a Horse or House with an Obligation that the same individually be restored is what corresponds to the Latin Commodare to lend things which are Spent in the Use as Corn Wine and Mony with a
to Spending By reason he supposes that Property of things consum'd in the Use is not distinct from the Use of them so that who has the Use has Property of them too The Hirer then having the Use has both and therefore is no more a Hirer but a Proprietor for the Time he has the Use so that Paying Consideration for it He 'll Pay for what is his own and the Lender receive Interest for what belongs to the Borrower and in this he places the Sin of Vsury What the Holy Doctor supposes of the indistinction of Property and Use in things consumptible since his time has not only been question'd but the opposit goes for the more current among Divines approv'd by no less then five Popes witness Lessius De Just lib. 2. c. 3. Dub 8. n. 38. in this the now more probable opinion I see no greater difficulty in letting Mony than Letting a Horse for the Hirer pays only for the Use the Property still remaining to the Letter But the Property of what Since Mony in the use Perishes to him that lays it out Ans That is to say Mony is in the time 't is us'd and no longer and for that time the Owner letts it But that 's almost Momentary Ans Be it never so short 't is preferable or at least equivalent to the longer use of a Horse or House This holds speaking of the same Physical and Individual Mony which in its uses Perishes not in it self but to its Hirer Yet Morally it still remains in the right the Creditor has to as much it remains in the Security for its Reimbursment it may also remain in the effects of using it redounding to the Hirers Profit So that the Letter retains the Property tho' not the Possession of as much as the Hirer ows and according to Law may dispose of it by Gift or Sale To the confirming what has been said upon due Reflection you 'l discover little or no difference between the Letting Mony or a Horse A Horse is let to be restor'd the same not absolutely but conditionally for if by the Hirers fault it dies he 's only oblig'd to make amends to its full Worth And tho' the same be not return'd yet it cannot be deny'd that it was Lett. The like happens in Putting out Mony the Letter retains a Right either to the same or as much for the Nature and Intention of Hirage is to have a Horse proper for the Turn the being This or that is wholly indifferent by reason it is the Species or Quality which render things Valuable and Serviceable for Hirage and not the individuality In like manner the Letter being insured of having back a Horse in all respects as good as his own ought to content himself as well as with the Right he has to his own And what if one should Lett a Horse Conditioning to have as good if not his own back I inquire whether this would not be a true Letting Certainly it would Why may not one ther in the same manner Put out Mony For the Letter keeps a Right to have his Summ back and one 20 l. in Moral estimation is the same with another 20. So that the Summ remains still the Creditor's to be restored as a Horse to the Lettor This seems to have been acknowledged by the Learned Cajetan Verbo Vsura exterior § Nov. fol. 578. Nota 2 do quodquia Lucrum Vsurarium est ex mutuo ideo siquis non mutuat sed accommodat seu locat aut Vendit Pecuniam cum pacto recipendi aliquid Plus non est Vsure sed liciti sunt hujusmodi contractusque dum modo Pacta fint moderata juxta qualitatem Temporis Since Usurious Gain is for Lending therefore if a Person doth not Lend but Lett or Sells Mony Bargaining for somewhat more it is no Usury but such Contracts are lawful so they be moderate according to the quality of Times Now our Law has struck up a Bargain for all to the easing each Particulars of that Trouble It hath also Provided against all immoderate Gain assigning a Set Interest now more and now less Proportion'd to the Condition of Times to the exclusion of all Exactions and Extortions and thus the Law renders the Putting out Mony no Lending and the Interest allow'd no Usury Whereby the way I take notice of a Construction in Common Law which Sir Robert teaches us of the Word Extortion and Exaction They are thus Distinguished says He Extortion is a Wrong in taking more than is due Exaction is the taking of what is not due at all This distinction had it come from a School Divine would scarce have escaped Sir Robert's Censure he 's so severe upon them for my part I should conceive that the more that is due is not due at all He then who takes more than is due in that more he takes takes what 's not due at all and so Extortion in Substance falls in with Exaction The Digression may serve at least for the Promiscuous use with Sir Robert's leave of the Words Extortion and Exaction whithout Cavil upon a Nicety scarce worth the Laws Notice CHAP. VII Of the Obligation of Lending ON what has been said in the Preceding Chapter an enquiry attends by Course concerning the Obligation of Lending it being Manifest that where the Obligation of giving or lending Mony ceases it may be Lett. To Assigne the bounds of this Obligation First I reduce Dealings relating to Exchange of Property either to Donation or Sale in Contracts reducible to Buying and Selling a just Profit is allow'd of Acts appertaining to Donation as such admit of no Gain by way of Justice for such a Gain were Usury in taking Interest for what Donation has made no more ones Own Now Lending is as sort of Giving as Letting is of Selling and one and the same thing may be Lett or Lent or Given Giving makes the Thing no more the Donors Lending makes a Thing or at least the use of a Thing no more the Lender's For the space of the time t is Lent so that to require Payment for what is given or Lent as being another's is Palpable Injustice and Usury as has already been declar'd In Letting one Sells the use of what he Letts I Secondly Reflect that as no man is Oblig'd to Prejudice himself so where Self-prejudice Intrudes not it self the Law of Nature Obliges one Man to help another the Preservation of each having a Reference to the Whole and in this Case arises an Obligation of Supplying our Neighbours Thirdly In extreme Necessity no place for Lending The Necessitous having a Natural Right to take what may relieve their present Want all things in that occasion becoming Common and to Refuse a Person in extreme Necessity is a sort of Theft in retaining from him what Necessity makes to be his own and no less Folly in pretending to Lend what in extreme Necessity is more another's then yours Fourthly In Cases of great tho'
less urgent Necessity than Extreme the Wealthy are bound under Mortal sin to Succour the Poor out of what they have Superfluous in ordinary Necessities they 'r Oblig'd under Venial Yet in those Cases if Letting or Lending will suffice their occasions all Obligation of giving ceases This is generally the Doctrine of Divines Hence this Conclusion follows The Obligation of Lending is Conditional Thus to be express'd If a Person will not by giving by Selling or Letting cannot relieve his poor Neighbour by the Law of Nature He 's bound to Lend out of what He abounds with And in that Case to exact Interest is Usury unjustifiable by any Law whatsoever The saying of St. Basil being most true upon the Text of the 14 Psal Qui Pecuniam suam non dedit ad Vsuram He that hath not given his Mony to Usury Enim vero inhumanitas est maxima Si is qui egestate premitur mutuum ad Vitae Subsidium qui erat Dans vero minime contentus ex Miseri calamitate Provertus opes excogitet For certainly says the Saint It is the greatest inhumanity whilst one Borrows a Subsidy for life the Lender not content with the Principal Devises Incomes and Riches out of the Calamity of one in Misery In this Passage you have in what according to the Sense of St. Basil Vsury consist In other Cases containing no Obligation of Lending Mony may be Lett or Put out as Law and Custom allows Since the Obligation of Lending generally speaking extends no farther than to small Sums sufficient to Relieve Pressing Necessity Yet in case a Person freely Lends never so great a Sum the Law cannot allow him Consideration for it for This were Usury as hath been more than once repeated and Prov'd forbidden by the Law of Nature and God to which Inferior Laws to be Laws must Conform Having prov'd what Occurr'd unto me not so expresly Treated of in Schools towards the making out the Lawfulness of taking Interest for Mony Put out 't is time I should produce the Common Titles Assign'd by Divines for the Justification of it CHAP. VIII The Common Title assign'd by DIVINES COnsidering the Nature of Things which may be Lett I find in none so many and so good Titles for just Gain as in the Letting of Mony A House for Instance stands Empty of no Profit or present use to the Owner apt to decay for want of Inhabiting yet it may be Lett and Rent received for it Upon what Score For the living in it But that kept it in Repair And is it Just the Inhabitant should pay for what he betters It may be said it is the Tenant's Conveniency which deserves the Rent The same with greater Reason may it not be said of Mony But besides the Hirers Convenience the inconveniencies which attend the Lettor are yet more Considerable by Reason Mony being the Price of Things Contingencies Daily Produce occasions of Lucre and the want of it unforeseen Damage The depriving oneself of the Profit which probably might be made and the Danger of undergoing Prejudices are rateable worth Recompence and may be Bargain'd for Reason dictating as Just to provide for Self indemnity For which Cause as I suppose the Mony taken upon those Accounts is named Interest as behoving each one to require it as Due One may interpose These Titles have no Place in such as Hoard and Keep Mony idle in their Coffers A. An inconsiderate Objection Whilst the Mony lies in Coffers the Difficulty may be shut up with it But every one hath Right to open his Coffers and to make Use of his Mony to his best Advantage and this Right by Putting it out he makes it over to another Besides in good Philosophy Mony being a pure Medium it is not coveted and lov'd for its own sake but for the Service it may be put to as advantageous Purchases Traffick and the like in order to Profit and in Cases of Suits Sicknesses imprisonments and other too frequent Accidents in order to prevent the harm the Want of Mony in like Misfortunes would Occasion of these Services he that puts out Mony deprives himself and that Deprivation deserves to be consider'd Upon this ground runs the Decision of S. Thomas Opusc de Vsuris where treating of such as sell dearer because upon Trust affirms 't is Usury Si tantum propter expectationem solutionis fiat That is if it be for meer forbearance but if it be to keep himself harmless that it neither may be Usury nor Injustice But grant that neither Cessation of Profit nor Emergent Damage be in the Case Still the Hazard of Principal is Constant and great What a multiplicity of false Dealers Casualties frustrate the best Intentions Securities of soundest Appearance prove often Litigeous producing much Cost Trouble and Care the exposing ones self to all this Is it not estimable and worth its Value It may be said All Lenders are expos'd to these Inconveniencies for which cause they being essentially connex'd with Lending either Use-Mony upon such Titles as being for Lending is Usury or those Titles taking away the Nature of Lending Usury will become a meer Sound and not a Word as signifying nothing Answ It is granted that all Lenders are more or less Subject to those Inconveniencies but 't is deny'd that they are Essential to Lending For Lending includes no more than the Act of Lending the Vse of what 's Lent and futurity of Repayment these possibly may consist without loss of Gain adventitious Damage or Hazard of Principal as a Lender presumes they will and ventures it So that he retains no Title for Interest This an Usurer heeds not but blinded by Avarice even in that Case will have Profit with the Principal A lender then tho' he be expos'd to Loss it is because he will lend be it for Motives of Charity so commended in Holy Writ and he is to expect his Interest from God or be it out of Friendship and he 's repaid by his own Judgment that it becomes him so to do But it were a bad illution to say he could not Bargain upon the score of those Dangers and so doing he had been no more a Lender and therefore no Usurer The Inference which was added that Usury will become a meer Sound and not so much as a significant Term ends in Air and is of no Substance Sir Roger Twisden and some others make Usury a pure Invention of Churchmen to bring more Grist to their Mills which were it true they would not study to bring it to nothing as the Objection Pretends But Divines according to Duty distinguish no Usury from Usury To exact Interest for what was freely Lent still remains Usury independently of all Churchmen and Canons To Lett where oblig'd to Lend is Usury taking above what Law allows is Usury at least Presumptive Continuation Mony too much in Practice if some new Consideration arise not I hold to be Rank Usury as receiv'd Purely for Lending all