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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A70290 Usury explain'd, or, Conscience quieted in the case of putting out mony at interest by Philopenes. J. D. (John Dormer), 1636-1700. 1695 (1695) Wing H3249; ESTC R12079 43,383 127

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when more is Required than was given as for example if you give 10s and require more Back or a Bushet of Corn and Exact somewhat above Ansu Giving is taken there for Lending and that to the Poor as may be gather'd from the Smallness of the Summs Besides in Reality in our Case one receives no more than he gives for a yearly Improvement being worth at least Five per Cent. of this he 's made Master who receives the Principal So that even in Compliance with the Decision as it lies no more is taken than given This is all the Author could Pick out of Ancient Councils against which he Apprehending length of Custom had Prescrib'd he passes to later Decisions A Transition which betrays either Shallowness or Prevarication as to the Cause he undertakes since Custom is the best Interpreter of Law Lib. 37. ff de Legibus Optima Legum Interpres est Consuetudo Now Usury being against the Law of God no Custom can prescribe against the said Law but it has Prescrib'd in favour of the Common Practice as he Apprehends Therefore the Common Practice can be no Usury and if Custom of time Pass'd could Prescribe against the Ancient why may not present Custom Prescribe against what he Quotes of Fresher Date For that both Clergy and Regulars take up and put out Mony as Occasion requires 't is too well Known now a days to be denied Little or nothing therefore to his Purpose being to be gathered out of General Councils DuTertre passes to Provincial Synods In that of Milan under Pius Quartus it is forbid to take Interest upon any Account whatsoever Yearly for Mony offer'd to be Paid in In that of Mecklin in the time of Pius Quintut 1566. Du Tertre seems to Triumph tho' of no General Obliging Authority It s Decree is Synodus Statuit ordinat ne quis Tutor c. The Synod Decrees and Ordains that no Trustee or Guardian under Pretence of Increasing the Patrimony of their Pupils Lend the said Pupills Mony to receive Yearly a certain Lucre above the Principal with Power of calling in the said Principal Declaring such Bargain to be Vsurious and that against such Lenders as Vsurers to be Proceeded to Punishment as Prescribed by Canons Answ The Synod of Milan Determining only as far as Cited by Du Tertre in the Case Mony be offer'd to be Paid in rather Allows than Disallows Interest for it when not offer'd to be Pay'd in or when it is Put out according to the Rule Exceptio firmat Regulum in alijs but the Synod in express Terms agrees unto it when Granted by Law closing its Prohibition Nisi quatenus jure nominatim permittatur In so much that Bonac tho' a Milanese thought it not worth his while to take notice of what no ways opposes his and our Opinion Bail therefore the Learned compiler of Councils Tom. 2 do Pag. 492. judges the Council to be no ways in force against the Common Tenents for were it he Rightly Instances Cur ergo Bonacina alij Scriptores hujus Provencia Plures exhujasmodi Casibus licitos tutati sunt sine cujusqam offensione Why then has Bonacina and other Writers of this Province defended many of the Cases Mentioned in the Council without offence to any The Synod of Mecklin in the sense D● Tertre wrings it to is not excepted of in the very Province which only it could Oblige as appears from constant Practice For my Part I Guess the Decree strikes at deceitful Trustees and Guardians the word under Pretext Denotes as much They commit Usury in taking Mony for Lending express'd twice in the Decree they Cloak it under a Specious Pretext of the Orphan's Prosit and it is no wonder if such Practices be Condemn'd by the Synod Setting aside this or a like Gloss The Synod would pass for Extravagantly Uncharitable in forcing Orphans to live from their Infancy upon the Principal to the Beggaring them when come to Age Wherefore even our Statute Laws tho' Judg'd by some Dubious in the Point of Loan allows the Putting out Orphan's Mony On the other Part with what Conscience can a Guardian expose his Pupil's Mony without securing the Principal and Power of calling it in Trustees therefore may put out their Pupil's Stock so it be effectually for their Profit as it is done without reclaim either of Church or Magistrate taking always such Methods as may exclude not only the Intention but all appearance of Usury Hence Lessius not long aster this Synod writing in that same Diocess makes no mention of this Decree but justifies the way of Putting out Orphan's Mony and tho' he thinks fit it should be forbid for the future I conceive he added that Clause for fear Ignorance might be an Occasion to some of committing Usury by taking Interest purely for Lending which without Usury might have been bargain'd for on other Accounts and in due forms The Assemblies of Melun Bordeaux and Rheimes are fully Answer'd by what has been said and the Practice of all France in Case of real Opposition Oversways in Authority those few Particular Synods The Assembly of Melun Du Tertre tells us repeats the words of that of Milan concluding with the Saying of Christ Lend hoping nothing thereby the like doth that of Bourdeaux The Council of Rheimes of greater Authority as being approv'd by the Pope clearly allows the Doctrin delivered hitherto of Usury In these Terms Tit. de Faenore cum sacra litterae excludant eum a Divino Tabernaculo qui Pecuniam dederit ad Vsuram aperteque nuntient ut mutuum Demus nihil inde sperantes Quisquis praeter sortem Praecipuam ex mutuo aliquid amplius exegerit vel acceperit cujuscunque generis illud sit modo Pecunia estimari possit Vsurarius esse censeatur Since the Holy Scripture excludes him from the Tabernacle who gives his Mony to Usury and manifestly declares That we lend hoping nothing thereby whoever shall Exact or receive above the Principal of what was Lent of whatsoever kind it be so it be worth Mony let him be judg'd an Usurer Remark well the Expression For what was Lent there lies the Stress But what Council or Assembly ever say That Mony Put out as in our Case is Mony Lent CHAP. XV The AVTHORITIES of Popes ALexander the III. having condemn'd Usurers in the Councils of Tours and Lateran To the Case of the Arch-Bishop of Genoa proposing the Dealings of some Merchants who Sold dearer for retardment of Pay writes thus Licet contractus hujusmodi ex tali forma non possit censeri nomine Vsurarum nihilo minus tamen venditores Peccatum incurrunt cum cogitationes hominum omnipotenti Deo nequeant occultari Answ What could be alledg'd less favourable to Du Tertre's Purpose For the Pope seems to excuse from Usury what Divines condemns for such Tho' such Contracts says the Pope as to their forms be not to be held Vsurious yet those that Sell after that Manner sin whereas
't is Lent neither Diminishes nor Deteriorates Answ Authority grounded upon Reason go's no farther than the Ground it builds upon Wherefore answering Reason I satisfy Authority To the first 't is granted That the Use of Mony and a Field much differ Mony of it self produces nothing a Field of its own Nature is fruitful The Use of Mony is to be the Price of things the Use of a Field is not yet in this they agree That as a Field gives Grass or Corn by Tillage so Mony employed in Buying or Selling yields Profit and of the Right to this he that Puts out Mony deprives himself I further wish the Opposers would acquaint me with the Products of a House and other Artificial things or even of Mony when Lett out only for Show or to be a Pledge as on those Accounts S. Tho. allows it may be 2da 2dae Qu. 78. To the 2d He that Hires Mony has the Profit or at least the Right to Profit by it and so makes an Exchange of Gain for Gain But Mony by Keeping affords nothing What then But it would by Spending And before Spending doth it not enable the Owner to profit by it as Occasion serves And is this Nothing Hath it not more of Hardship that another should have the whole Gain by Laying out ones Mony than the Onwner should take part with him To the 3d. That House and Land decay with use 't is answer'd they decay more without it and tho' Mony as to it self do not deteriorate yet a Principal may perish wholly to the Creditor but Land cannot Besides he that Puts out his Mony is at least depriv'd of its Use in order to Gain which is equivalent to a Decay in House or Land And what doth a Horse or House yield by Keeping unlett Greg. of Nyssa in his 4th Hom. upon Ecclesiasticus Elegantly delivers himself in these Terms Faenus qui aliud Latrocinium Parricidium nominaverit c. Whoever shall stile Vsury a second Robbery or Murthering of a Parent will say no more than becomes For what matters it whether you break a House as a Thief to seize another's Goods or Assassinate a Man upon the Road to take what he has or whether by Necessity of Paying Vse-Mony you get what appertains not to you God said to the living Creatures be fruitful and multiply But the Brood of Gold of what Matrimony do's it come What Mother gave it Conception c. Answ Who sees not how enormous the Usury must be against which S. Gregory declares with this Eloquent Flourish But if no Murther of Parent no Robbery no Assassination be incident to the Putting out of Mony this cannot be the Usury at which he aims A just Contract is the Matrimony from which the Brood of lawful Interest comes publick Conveniency is its first Parent whereas the Usury against which he inveighs was they are his Words Conceiv'd by Avarice brought forth by Iniquity Cruelty being the Midwife S. Chrysostom Hom. 57. upon S. Matth. appears much of the same mind Quid irrationabilius quam ut sine Agro Pluvia Aratro seminare contendas c. What more irrational than to Sow without Land Rain or Plow I give and grant says the Usurer Not to have and to Hold but to have more Return'd Answ Granting it were a madness to Plow without Land Rain or Plow as it were to Sow in the Air yet I am of Opininon that neither the Saint nor any other would deny there are other ways of Just Gain without Land Rain or Tillage whereof one is the Putting out of Mony at Use In the words of the Usurer I give and grant not to have and hold but to have more Restor'd Usury is both expos'd and condemn'd for in the Terms Giving and Granting is expressed an Usurer's Lending in order to Receive more thereby and that more was at the immoderate heighth of that Age. I close this Chapter Entreating only the Reader to consider whether these and like Allegations are not equally against all Princes Exchequers and Banks in Christendom beginning from that at Rome which ought to be a President as to Conscience For tho' such as place their Mony in the Bank of Rome to take away even the Shadow of meer Lending cannot call it in at Pleasure yet they may Sell the Pension or Interest they duly Receive and so Reimburse themselves of their Principal and there never being scarcity of Buyers it comes to be equivalent to the Power of Calling it in Which being so I hope Du Tertre and his Adherents will grant Rome to be no less Vers'd in Scripture and the obliging Authority of Holy Fathers than themselves and yet not so Presumptuous as to run and Act in opposition to the said Authority It remains now to discuss whether it succeeds better with him in his Pretensions to Popes and Councils CHAP. XV. Of the AVTHORITIES of Councils THE Quotations taken out of the Decretals and some Synods make me suspect that either Du Tertre understood them not or mistook the Question The cause of this my Apprehension will appear in the Examination of what he Produces I say not says he That the Council of Nice Chap. 17. Forbad Vsury to the Clergy each one Interpreting the Place in his own Sense But the Council of Carthage hath Prohibited the Clergy to Exact Interest of any Kind c. 16. Nullus Clericorum amplius recipiat quam cuiquam commodaverit Let none of the Clergy receive from any one more than he Lent Answ Much to the Purpose to receive more than is Lent and on the Score of Lending is Usury so that the Difinition of Usury has the Councils Liking Yet what if the Council should have forbid the Clergy to Putt out Mony at Use as improper to their Calling It nothing concerns the Layety nor questions its Justice but now it is in Practice with Clergy as well as Layety Wherefore Doctor Gage's President of the English College at Doway being Demanded by a Person of Quality of the Opinion of his Community as to the Case with great Ingenuity Answer'd they were Divided for such as had Mony to put out thought it Lawful such as had none were against it What he brings out of an Epist of St. Leo to the Bishops of Campania is much of the same Strain the Pope orders punishment for those who Practice Vsury and Strive to grow Rich by it Qui usurariam exercent Pecuniam faenore volunt ditescere Ans Had Du Tertre prov'd the Common Practice Usury This and the Rest might have been Serviceable to him But to suppose it to be Usury without Proof and then to Condemn it as Prov'd is not fair but a sort of Juggle to amuse the unlearned with Quotations Gratian is Cited in the 2d Part of his Decretals Cause the 14. q. the 3. c. 4. who out of an Ancient Council of Agde held the 6th Century An. 506 Defines Usury Vsura est c. Vsury is