A DISCOURSE Whether it may be Lawful to take USE FOR MONEY Written by Sir ROBERT FILMER And published by Sir Roger Twisden with his PREFACE to it LONDON Printed for Will. Crook at the Green Dragon without Temple-Bar 1678. TO THE Reader AS soon as I had understanding in the affairs of this World I became sensible how grievous it was to lie under the heavy disease of paying Interest Consideration or Use term it how you will for Money And finding it generally condâ—mned by those Judgments and Learning I did most esteem I began to question with my self whether the sin were not of that rature that I my self in â—aying did concur in the sâ—me offece with the taker according to that of St. Paul in the vulgar Latine qui talia agunt digni sunt morte non solùm qui faciunt sed etiam qui consentiunt facientibus Which doubt I found after propounded by Aquinas 2 a 2 ae q. 78. a. 4. but neither so resolved by him or his learned Commentator Cajetan as that I received satisfaction in the point Upon which occasion I began to search farther and as for the Scripture I confess the prohibitions in it seemed to me to have much of the Lawsframed for no other than the Commonwealth of the Jews And to be of the same nature the Jubile the Cities for Refuge The Release to be made every seventh year were for it is no way probable God who commanded them neither to vex nor oppress a stranger which it is apparent was of such an one to them as they were to the Egyptians would have permitted the free exercise of Use towards him could it not have been without either oppression or vexing And prohibited the Jews who either in respect of their often Releases and Jubilees could not give the assurances might be required in such contracts or for some other reasons alone known to the Divine Wisdom As for the other places in the Psalms Ezekiel c. they ever seemed to me no more prohibitions but were to be referred to the first limitations of it Besides what was me thought very considerable no one Writer I met with condemned the taking Increase upon lone of Money if offered with willingness and not contracted for be the party never so poor that payed it yet I observed that to be against Levit. 25. 36. as all oppression in buying and selling verse 14. Touching the practice of the Primitive Christians there is nothing more plain than that it was not onely common amongst them but allowed by Laws for proof of which there needs no more than the Title De Vsuris found in both the Codex of Theodosius and Justinian and that in so high a manner as the Emperour Constantine at the very time the Council of Nice sate seems to have moderated the excess yet so as he that lent two Bushels was to receive a third usurae nomine quae lex ad solas pertinet fruges Nam pro pecunia ultra singulas Centesimas creditor vetatur accipere I know it is not without question what is the meaning of Centesima Accursius sayes it was as much as the principal in a year Est Centesima quae sorti in anno aequiparatur And elsewhere gives this example Sors est duodecim usura fit in anno qualuor sed et si octo tunc est bessis si aequiparatur sorti tunc est centesima And so understands it he that made the Gloss upon Gratian Centesima dicitur usura quae sorti aequiparatur in anno So that by Constantine's allowance no man was to receive of Fruits above a third but for money by the year the whole sum which was intolerable Others are of opinion that the Roman manner of paying for the lone of money being by the month which Horace shews Haec ubi locutus foenerator Alphius Jam jam futurus Rusticus Omnem relegit Idibus pecuniam Quaerit Kalendis ponere And of a Debtor to pay use Tristes misero venêre Kalendae They therefore think no man should pay more than the hundredth part of the principal by the month called therefore Centesima which was 12 per Cent. in the year a large increase enough to ruine any Borrower But be it which it will it clearly shews as the Emperour Valentinian and Theodosius say Usury or increase for money was jure permissum Neither the Laity alone but Bishops themselves not so careful of their pastoral function as was fit did per alienas provincias oberrantes negotiationis quaestuosae nundinas aucupari esurientibus in ecclesia fratribus non subvenire habere argentum largiter velle fundos insidiosis fraudibus rapere usuris multiplicantibus foenus augere so that not content with what the Law allowed they did increase their stock by use upon use which how unconscionable it might be and how performed I will not here dispute he that would understand how it past may read Accursius his Gloss ad Leg. 28. Cod. Vsuris These exorbitances in the Clergy procured the 17 Canon in the Council of Nice which yet reached none but those that were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 within the rule of the Church And is undoubtedly there set down not as a thing in its own nature bad and forbid jure divino but as we say jure positivo upon the Churches command For first it did not extend to the Laity which had it been a sin in it self could not have been exempted out of the command Secondly At the same time the Emperor so renowned to all posterity for piety and equity in making Laws establish't the thing it self by an Edict as did divers godly Princes who succeeded Thirdly It only provides for the future 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that should after that time take Vsury not with any reference to the past which had been most inconsiderately omitted had the thing been in its own nature bad As the Heathens observed Laws looked not at offences past if the thing were not in its own nature faulty So when it provides only for the future without any censure of the past there is a great probability it was tolerable before Fourthly the other particulars provided for with the like severity are cleerly juris positivi as that none should use any manual occupation for fo I interpret 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 there Which however it may be very indecently exercised in any of the Clergy yet certainly hath no other ground for being unlawful than the command of the Church for St. Paul doubtless did it Act. 5. 18. 3. 1 Cor. 4 12 c. Lastly the offence seems to be much in the quantity for they exacted not less than 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is the whole and half Conformable to this decree of so famous a Council divers provincial ones held at Carthage Arles and elsewhere did prohibit Usury but everwith the restriction to the Clergy
only indeed the Council of Carthage being put in mind by one that in his parts it was condemned in Church-men Gratus the Bishop of that Sea replies quod in laicis reprehenditur id multo magis in clericis oportet praedamnari which plainly shews it not to be condemned as in its own nature a sin for then the Laity as well as the Priest had been in all times culpable but as of that which however in some it might be tolerable yet was not fitting for them to exercise And truly the excesses then taken did so much pass all proportion of Charity as it well deserved reprehension and cause the Fathers to speak with more earnestness against it than other sins to which men were by nature less addicted than that of Covetousness And for proof of it there needs no other testimony than that of Justinian whose care was veterem duram gravissimam usurarum molem ad mediocritatem ducere c. and doth therefore establish what should be taken too long to be here inserted he that would know more particularly may have recourse to the law it self It sufficeth me that the Emperour having there proportioned what people of several conditions should take he concludes Caeteros autem omnes homines dimidiam tantummodo Centesimae usurarum nomine posse stipulari eam quantitatem usurarum etiam in aliis omnibus cafibus nullo modo ampliari in quibus citra stipulationem usurae exigi solent what dimidium Centesimae was I must refer you to that I have said before though Acursius explains it to be half the principal by this verse quaerere semisses possunt communiter omnes It seems by Novel 121. 138. and other Laws Use in those times however thus moderated by the Emperour who likewise took away Use upon use was very high If any shall question how these Laws were censured by the holy Fathers of those times I confess my self to have read nothing in particular of those concern Vsury yet in general Eusebius observes Constantine reduced old Laws to more equity and indeed so we find him to have done even those did pertain to debts which are of near Relation And of Justinian we find this testimony in the sixth general Council 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Which I translate thus Justinian a King of happy memory above all things jealous of the true and Apostolique Faith the truth of whose belief as much as it did please God by his sincere confession so much did he raise the most Christian policy the Godly memory of whose devotion is to this day famous and the truth of his Faith dispers'd throughout all the World by his Imperial Edicts is praised And somewhat after 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is The great Justinian the last but most worthy of all whose vertue and godliness reduced all things to a better order How can we then imagine Princes so pious so careful to correct all they found amiss should permit what was so full of sin as some now take it to be And thus for ought I know stands it amongst the Eastern Christians to this day unless the Mahumetan have made in some parts an alteration But in Europe after the year 800 that Charles the Great divided the Empire it received some change For in his Capitulars we find a clear determination that it ought not to be Vsuram non solùm clerici sed nec laici exigere debent Which is the first prohibition I have at all met layd upon the Lay. The Council of Nice and the Canons attributed to the Apostles did condemn it in the Clergy and so likewise did some particular Synods And that of Carthage did not approve it them and Leo the first who went farthest did grieve condolere the exercise of it did cadere in Laicos qui Christianos se dici cupiunt intimating it had been a greater perfection of Charity had they abstained from it but none extended to a command or to determine it a thing they ought not to do before this Decree of the Emperor which no doubt wanted not Pens to defend it for about two hundred years after certain learned men collecting out of Councils and Fathers such Rules as were most apt for the Government of the Church and direction of a Christian called therefore Canonists as those who were the beginners of the Canon-Law such were Burchardus Bishop of Wormes Ivo of Chartres and Gratian a Benedictine Monk who writ the last of them yet began his Work 1151 and finished it ten years after neither of them omitted sundry Chapters in condemnation of Vsury and were therein followed by Canonists Casuists and Schoolmen insomuch as there is hardly any collection of the Canon-Law since without one title de usuris it turning infinitely to the advantage of the Ecclesiastick who by that was made judge of almost all Agreements between man and man as who shall read the Title in the Canon-Law and what the Doctors have writ of Vsury restitution upon it and participation with the Vsurer c. may plainly discern And not content with what hath past in foro animae in private they have gone so far as a Temporal Judge being sometimes ready to give sentence upon a Contract hath been stopt by the Ecclesiastick on a pretence the Bargain was Usurious Yet the necessity of humane commerce hath caused divers so great enemies to the name of Vse with their Mountains of Piety their distinctions of lucrum cessans and damnum emergens to palliate so the thing it self as to call that no Usury which hath the same effect at least to my understanding After the year 1200 much of the Ecclesiastick power especially what concerned Heresie was delegated by the Pope to certain Inquisitors called since the Court of Inquisition whom Alexander the fourth about the year 1255 did expresly charge not to meddle with any Question of Vsury though there wanted not some who in that Age affirmed Vsuram non esse peccatum mortale as appears by History and that resolution of Clement the fifth in the Council of Vienna 1311. Si quis in illum errorem inciderit ut pertinaciter affirmare praesumat exercere Usuras non esse peccatum Decernimus eum velut haereticum puniendum Upon which the Inquisitors grew very busie in many parts At Florence in the year 1345 upon a great disorder that then fell out they were forced by Laws conformable to those of Perugia Spain c to regulate their power though in Arragon by a Bull of Leo the tenth it seems they now proceed in such causes In Venice that wise State would never admit the Inquisition Che si trattino causa di usura di qual si voglia sorte to meddle with any kind of Vsury nor the Trade of any Artisan c. Touching the Church of England farther than that the Council of Nice was received both by the
Britans and Saxons even at the very first I know no particular prohibition of Vsury if we omit that imperfâ—ct clause in the Council of Calcuith about 787 till Edward the Confessor who having lived long in France and seasoned with the Principles of that Kingdom did First banish all Usurers out of his Kingdom Secondly if any after that prohibition should be found to exercise it he then confiscated all he had Thirdly he barr'd them of the Protection the Law afforded and gives this reason that having lived in the French Court he had learnt quod usura radix omnium malorum esset But as a learned Gentleman wisely observes Too severe Laws are never duely executed so hapned it with this which certainly was not all put in practice in England for in the year 1126 in a Council held at Westminster by Cardinal de Crema the Popes Legate and the Clergy of England we find it only prohibitory to those of the Church Vsuram turpe lucrum clericis omnimodis prohibemus qui vero super crimine tali confessus fuerit aut convictus à proprio gradu dejiciatur And again in another held at the same place by Albericus Bishop of Hostia the Popes Legat 1138 thus Foenoratores Clericos turpia lucra sectantes publica secularium negotia procurantes ab officio Ecclesiastico nihilomnius removendos censemus Which is indeed no more than a renewing the Niiene Canon of which before After this I do not remember any one made directly against it in England Neither hath Lynwood any Title of it though there be so many in the Common Law nor at all that I know doth he touch upon it unless in one place and that very lightly which shews clearly it was not much prosecuted here By these steps that which at the first was exercised by Bishops and others afterwards forbid the Clergy as what might intangle them in the affairs of this world and shew minds too greedy of filthy lucre allowed by so many Imperial Edicts of the most pious Emperours first became disliked in the Lay after that prohibited and then they proceeded so far as to determine to affirm it no sin was Heretical Upon the whole matter I could not conclude either by express words or necessary inference out of Scripture or the practice of the Primitive Church either giving or taking use for money lent to be in its own nature amongst Christians sinful so as no other circumstance made it so as either the exacting the height the Law permitted or upon the borrowers poverty not accepting what he is willing and able to pay but with rigour forcing from him the uttermost penalty or using some other way against Charity not so fit for me to explicate In short I saw no reason not to submit to that of Alstedius Vsura non est intrinsciè sive suo genere mala sed est res indifferens nor to deny that of Calvin Nullo testimonio Scripturae mihi constat usuras omnino damnatas esse Yet I do not take upon me to determine it to be absolutely lawful I leave that to some learned Divine only I have here historically related what I met with in the inquiry I know many of Conscience and Learning are of a contrary opinion and I take this to be of that nature St. Augustine in one place held Purgatory utrum ita sit quaeri potest et aut inveniri aut latere that every man ought to satisfie himself and do accordingly Men of great Sincerity and Judgment may differ in Theological tenets Cardinal Cajetan of that integrity Chamier hath left this testimony of him Vir meo judicio quamvis Papista tamen candidus plurimumque distans ab ea pertinacia quam in reliquis deplorare cogimur is fully of opinion the paying mony for loan to those Banks are called Mountains of Piety is unlawful and usurious Cardinal Tolet in whose Writings to use Casaubon's words cum excellente rerum Philosopharum et Theologicarum notitia par certat modestia is clearly contrary and against him holding them very lawful In these disputes I cannot but think of that of Aquinas Quando quaestio qua quaeritur de aliquo actu utrum sit peccatum mortale vel non nisi ad hoc habeatur auctoritas expressa Scripturae sacrae aut Canonis seu determinationis ecclesiae vel evidens ratio non nisi periculosissimè determinatur and indeed if he mean by the determination of the Church the four nay that of Faith that was resolved in the six first general Councils I know nothing to oppose against it but of this too much Whilst I was thus in search this piece I now give thee w ch was written almost thirty years since by Sir Robert Filmer a very learned Gentleman for satisfaction of a person of worth and relation unto him fell into my hands fromwhence some friends were importunate for copies of it I fearing the thing it self might receive injury by ill Transcribers as those of some famous writers have done I have put it to the Press If thou beest a Lender and it shall not satisfie thee in the receiving profit for loan of money I can assure thee it hath me fully in the paying of it Farewel East-Peckham Roger Twisden The Author's PREFACE IF Exceptions be taken either to the Argument or Author of these Notes The Answer must be This question of Usury concerns no Article of Faith But is a point of Morality and case of Conscience and in that regard it admits of a disputation without Scandal the rather for that the Church of England hath not Defined or Described Usury The Divines of the reformed Churches are divided in this Controversie The greatest part of them oppose or mislike the rigid assertion of such as condemn all Contracts for gain by lending Namely Bishop Babington Mr. Perkins Dr. Willet Dr. Mayer Mr. Brinsley and others here at home and abroad Calvin Martyr Bucer Bullinger Danaeus Hemingius Zanchius Ursinus Bucanus Junius Polanus Molineus Scultetus Alstedius Amesius Grotius Salmasius The Author though he be neither Divine by calling nor by profession a Scholar yet as he is a rational man he may and as he is a Christian he ought for the direction of his own practice to examine what may be done with a safe Conscience and what not The Civilians and Canonists frequently dispute of the nature of Usury he knowes not but that any other Laique may do the like The Arment was first undertaken for the satisfaction of the tenderness of the conscience of others and not to justifie any practice of the Authors who hath always given but not taken Usury This point of Usury as it is at this day controverted is a meer popish question first broached by the Schoolemen and Canonists no ancient Father or Writer that I know of ever defined or disputed it Since the Reformation Melancthon