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Between these two lendings, this diversity intercedes. In the first, the lender disposes only of the use, of what he lends, not to be consumed. In the second, use being inseparable from consumption, the lender grants both use and consumption of the thing. The first grounds an action to the thing lent. The second grounds an action to as much, and as good in the same kind. As to the first, what may be lent, may be lett: whether mony, or goods, which perish in the use may be lett? shall be discussed. Plautus applies locare, to lett, to mony; and to place one's mony, is the common expression.

But before I proceed to examine this point, I shall lay down some truths, very matterial to the main, truths I think not to be shaken, as being rooted in the very definition of Usury.

CHAP. IV.

Positions drawn from the definition of Usury.

First. Gain, upon any account but lending, is no Usury. The proof. Usury is a gain, for a thing lent as lent. But gain. upon any account, but that of lending, is no gain for a thing lent as lent, therefore no Usury.

Thus

Secondly. Usury is a sin against the law of nature. S. Thomas, with the rest of divines. The proof. A lender by giving the use of what he lends, makes the said use no more his own; but to exact payment, for what is no more one's own, is an injustice, visible by the law of nature; therefore to receive payment for what is lent as lent, in which Usury consists, is against the law of nature; and therefore, as such, it is reduced to stealth, forbidden in the seventh commandment.

Thirdly. Not only extortion or exaction upon the poor, is Usury. The proof. Increase for money lent as lent, may be required of the rich, and this is Usury; but in this no oppression of the poor; therefore, Usury consists not only in exacting upon the poor, as our two knights hold, and the author of the letter impugned by Du Tertre seems to affirm.

Fourthly. Whatever is not reducible to stealth, and against the law of nature, can be no Usury. This is but a sequel to the second assertion. The proof. If all Usury be reducible to stealth, and against the law of nature, nothing can be Usury, which is not against the same law; otherwise this contradiction would ensue, that all Usury is against the law of nature, and that some Usury is not. Now to make nearer our case,

Fifthly. A joint-agreement in a body politic, for the putting out

of mony at use, cannot be against the law of nature. Proof. Such an agreement would render it no more stealth, or injurious to any. Volenti non fit injuria, It would accord with the first rule of equity; do as you would be done by. It cannot therefore oppose the law of nature, being so conformable to it.

Conclusion. The said agreement passed into custom, or law, for the taking interest for mony put out, makes it to be no Usury. The proof. It makes it neither to be stealth, nor against the law of nature; but what is not against the law of nature, or stealth, is no Usury; therefore, it makes it no Usury.

If in the proof of any of these truths, fallacy imposes upon me, I shall be grateful to the discoverer. I am no stranger to the vertue of law, as to temporal concerns; it is not only lawful, but conscience, to submit one's private judgment to the public. Law regulates all contracts as to meum and tuum, in so much as property or domaine, by divines, as well as lawyers, is defined with deference to law. Property, they say, is a right in a thing, extending itself to all uses and dispositions of the said thing, not forbidden by law.

One may object, it is not in the power of any legislative authority, to make Úsury, no Usury, or stealth no more stealth; and to take interest for mony put out, is both stealth and Usury.

Answ. Though it be not within the verge of human jurisdiction to make Usury no Usury, or stealth no more stealth; yet it lies in the compass of that power, and even of a particular's power, to prevent from being Usury, or stealth, what otherwise would be so; not by altering the law of God and nature against stealing and Usury, but by a voluntary change or abatement of property and right. For example: One bestows a parcel of ground to be a Common, for the poor. Had the poor turned in their goods, before its being made Common, they had been guilty of trespass, and stealth, which they incurr not, after the right of Common granted them. The case, if I mistake not, is ours. If a person will freely give 5 per cent. and security for the principal, you may take it, as his gift, standing good in law, without Usury. This is what the nation agrees to, including each particular's consent; perhaps, in recompence of the good, accruing to the general ease and public profit; and perchance, by way of penalty, for prodigals and spendals; so that what, excluding this general consent and accord, might have been Usury, in virtue of the said agreement, ceases to be such, for he that takes 5 per cent. takes it as granted by law and custom. for mony put out; and not as covenanted by himself, for mony as lent; custom being previous to the putting out of mony, and including a general concurrence, which makes the interest allowed spontaneous, and freely given.

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Nor doth this procedure intrench upon any, but equally provides for all, since as a person putting out mony must receive, so taking up, he pays as much. And it often happens, that the same person who has mony out, is forced to take up. Suppose then he pay as much as he receives, where is the gain? This discourse, not managed, as I find by others, I think fit to promote by the following inquiry.

CHAP. V.

Whether the Law of the Land render the taking 5 per cent. safe in conscience ?

Exception may be made against the question, as grounded on a false supposition, and that we have no positive law for the putting out mony at use, but that it is purely premissive. That law may even permit Usury to avoid greater evils, as divines affirm, yet not justifie it as to conscience.

Answ. That we have no positive statute law, which as Sir Robert Filmer, page 92. informs us, varies as to the case, it matters not; for it is enough we have law. But we have even statute law; for the statutes against interest for loan, may be understood of interest for pure lending; and not only may, but must be so interpreted; all gain not purely for lending, being no Usury, as has been made out from its definition. Much more since the constant practice, as the same Sir Robert tells us, of the common law of this land, and also chancery in point of equity, doth not only allow interest, where there is a contract for it, but also gives it where there is none. What better interpreter of statute law, than common law and equity?

This practice becomes law, according to the decision. L. de quibus 32. ff. de legibus. Inveterata consuetudo, pro lege non immerito custoditur. An ancient custom is deservedly held for law, and lege 35. de legibus sed et ea quæ longa consuetudine approbata sunt, et per annos plurimos observata, velut tacita civium conventio, non minus, quam ea quæ scripta sunt servantur. But also those things which are approved by long custom, and have been observed for many years as a tacit convention of the people, are not less to be observed than written laws. Quid enim interest, (1. 72. ff. de legibus) an suffragiis populus suam voluntatem declaret, an rebus ipsis, et factis. For what imports it, whether the people declare their wills by suffrages or deeds?

True it is, where the legislative power lodges not in the people alone, as it doth not with us, the king's tacit consent is a requisit, and in our case we have it more than tacit, since the courts which

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all act in his name, adjudge interest to be payed. Now, if practice is not only the best interpreter of written law, but kept up for the space of some years, even prescribes against law, and itself often becomes law, who can except justly against the question made as being upon a false supposal?

Neither can our law be said to be meerly permissive, for a permissive law grants no action to an Usurer against the borrower. But our Judges positively uphold the creditor as to a right he has by law to receive interest; the law then must allow of that right, Judges being obliged to decide according to law; whence the law appears to be positive, and not purely permissive; for were it meerly permissive, it could give no right, as is clear, to take interest, but only wink at it; whereas our law grants procuration mony, to such who make it their business to find and put out mony for others. And is not this positively to co-operate by the encouragement of reward? The law of the nation then is clearly positive, for the putting out mony at use.

This positive law, I hold to be a plain justification of the practice, even as to conscience; it being to be presumed in favor of the law, that it would not positively concur to what were unjust, where Usury were against the law of nature and God. This presumption ought to stand good, until such time as the iniquity of the law be evidenced, which has not yet been done.

To question its justice, betrays an ignorance of what force law is. It even overrules and debars natural right of particulars, as in the cases of prescriptions, last wills, and minors, who, though true masters of their estates according to the apostles cum sit dominus omnium, are hindred by law to dispose of them. What more sacred and binding than an oath ? Yet by the law both of Castileand Portugal, all obligations, contracts, and conventions, appertain ing to the temporal court, if sworn to, are made void in law, to the end causes appertaining to the temporal, in vertue of an oath, may not devolve to the spiritual court, to the prejudice and limitation of the temporal jurisdiction; so the council of Trent, to say nothing of clandestine marriages, (Sess. 25. c. 16 de Reg.) annuls even an oath of renunciation made two months before profession. Evidence of what force law is, in cases much harder than ours, in which, all parties making up the legislative power agree, as to a certain rate for mony to be put out, as profitable to the public, and a fit means to prevent those strifes and debates, which might arise from the titles; divines generally allow of, for the taking interest, viz. emergent damage, lucre ceasing, and danger of principal, which often vary, and are now more, now less.

Our law then, stands upon good grounds, and makes good the ground it stands on; it being a tenet amongst divines, that

law takes away doubt, it being in possession of command, and though probable reason, but not evident, appear against its uprightness, it still keeps its post. (Suares de legibus, lib. 1.) Otherwise there being few laws, against which some objection might not be started, too much license in questioning them, would encourage to non-compliance.

So that in answer to the question, my opinion is, ever vailing to better reason, that more conscience ought to be made of condemning the putting out mony as authorized by law, than of practising it. For were its lawfulness doubtful, and not in so high a degree probable, if not evident, as both reason and authority renders it, still possession stands for law. Wherefore, divines hold it no wise requisit, that he that puts out mony either know the grounds of the law, or express the ways or titles justifying it. But it suffices, he intend to do what is just, and no ways offensive to God; as in prudence he may judge to be what law and constant practice stand for.

1

This is the decision of Bartolus. L. Quis fugitivus §. apud Leonem de Edil. Edict. of Navarrus, Binsfield, and Tiraquellius, viz. that a contract in use with learned men of known integrity, though in law somewhat dubious, obscure, and moving some apprehension of Usury, is not to be judged usurious. What would they have said to the case manifestly upheld by law and practice? I close this paragraph with this syllogism of S. Tho. quod 1. 9. art. 15. which may serve as a rule in this, and the like cases. Illud quod vergit in commune periculum, non est ab ecclesia sustinendum, sed ecclesia sustinet, ergo non est periculum peccati mortalis. That which inclines to a common danger, is not to be born with by the church, but the church bears with it, therefore no danger of mortal sin. Therefore no Usury.

CHAP. VI.

Whether Mony be capable of being Lett.

The decision of this question alone might put an end to the present controversy; for if mony can be lett as other moveables or immoveables are, like interest may be received, it being for letting, and not for lending.

That mony is not capable of letting, is commonly discoursed thus: location or letting, is a contract by which a person's goods, or tenements are granted for wages or rent; so that what belongs to the hirer, is the bare use of what he pays for, the thing lett still ap

NO. XXI.

Pam.

VOL. XI.

M

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