USURY. 



to be buried amongft. the bodies of other Chriftian men, in any 

 church or churchyard, until there be reftitution or caution 

 tendered, according to the value of fuch goods. Swinb. 



102. 



Mod of the early fathers of the church have condemned 

 ufury in the ftrifteft fenfe, i. e. any profit made of the loan 

 of money, as contrary to the divine law. Alexander III. 

 in the council of Lateran, prohibited the taking of all inte- 

 reft for money ; and it has been obferved, that Gregory IX. 

 places the chapter of ufury after that of theft. But the Mo- 

 faic law, though it forbade the Jews to take intereft from 

 their brethren, allowed them to take intereft from ftrangers, 

 or to borrow from them on the fame terms ; and that this 

 law has not condemned the lending of money on intereft as 

 malum in fe, and contrary to the law of nature and of nations, 

 ■which many have tliought, but merely prohibited it amongft 

 the Jews, as dangerous in a political view, confidering thtir 

 itinerant and agricultural life, has been ably demonllrated 

 by Noodt in his Treatife de Foenore et Ufuris, c. lo. and 

 II. (See Interest.) Nearly the fame regulations ob- 

 tained amongft the Romans in the infancy of the republic; 

 but when commerce was introduced amongft them, the con- 

 tract of lending money at a certain profit became frequent. 

 The higheft rate of legal intereft among the Romans, from 

 the time of Cicero and Juftinian, was the cmtejima or twelfth 

 part paid every month, amounting to 12 per cent, per annum; 

 but the fatirifts inform us that fome ufurers exafted three, 

 four, or even live times that profit. Juftinian in his code 

 fixed the legal rate of intereft at 4, 6, 8, or 12 per cent, ac- 

 cording to the ftation of the lender and the nature of the 

 contraft. {Cod. 4. 32. 26.) Various evafions of the laws, 

 however, were praftifed at Rome, and fome of thefe were 

 not unknown to the canonifts ; for ufurious profit might be 

 fecured under the contraft of a fale and repurchafe, or let- 

 ting to hire, or might be ftipulated for in confideration of 

 the gain of the borrower, or of the lofs which the lender 

 fuffered by the detention of his money. To thefe, modern 

 money lenders have added the purchafe of annuities, in which, 

 as the purchafer rifles his capital, he is allowed to take a 

 greater fhare of intereft, though this muft be within equitable 

 bounds. (Vaughan v. Thomas, I Bro. 556. Heathcote v. 

 Paignon, 2 Bro. 167. ) But if any of thefe tranfaftions ap- 

 pear from circumftantial evidence to be merely the covering 

 of an ufurious contraft, they are held to be within the fta- 

 tuteof Ann. See Chefterfield v. Janften, 2 Vefey, 125. 



By the laws of king Alfred, it was ordained, that the 

 chattels of ufurers fhould be forfeited to the king, their 

 lands and inheritances fhould efcheat to the lords of the fee, 

 and they fhould not be buried in the fanftuary. Swinb. 

 102. 1 Haw. 245. 



Alfo it feems to have been the opinion of the makers of 

 divers afts of parliament fince the Reformation, that all 

 kinds of ufury are contrary to good confcience. i Haw. 



^45- . . . ' 



However, cuftom has now diftinguifhed betwixt ufury 



and legal intereft ; and appropriated the term ufury to that 

 which exceeds the intereft determined by ftatute. The 

 legal intereft is five per cent, by 12 Anne, ft. 2. cap. 16. 

 commonly called the ftatute againft ufury, which ordains 

 not only that all contrafts for taking more than 5/. per cent. 

 and proportionably for a greater or lefs fum, are in them- 

 felves totally void, but alfo that the lender thall forfeit treble 

 the value of the money borrowed. And farther, if any fcri- 

 vener or foUcitor takes more than Jj-. per cent, procuration 

 money, or more than i2el. above the tlamp duties for mak- 

 ing a bond or bill for loan or forbearing thereof, or for 

 any counter-bond or bill concerning the fame, he fhall for- 



feit 20/. with cofts, and fhall fuffer imprifonment for half 

 a year. 



As this aft declares all ufurious contrafts void, the in- 

 dorfee of a bill of exchange give nupon an ufurious confi- 

 deration cannot recover, although he had no notice of the 

 ufury, and had given a valuable confideration for the bill. 

 (Low v. Waller, Doug. 736.) And if more than the princi- 

 pal and legal intereft be paid, an aftion will lie to recover the 

 furplus : per Ld. Mansfield, in Smith v. Bromley, lb. 696. 



In thefe days, a diftinftion feemeth to be made betwixt 

 ufury and legal intereft : for what exceedeth the legal inte- 

 reft is properly ufury ; and he who exafteth it feemeth ftill 

 to be punifhable as an ufurer. i Dom. 126. 



And, upon the whole, it feemeth now to be generally 

 agreed, that the taking of reafonable intereft for the ufe of 

 money is in itfelf lawful, and confequently that a covenant 

 or promife to pay it, in confideration of the forbearance of 

 a debt, will maintain an aftion. See Interest. 



The ufury laws have lately become a fubjeft of parliamen- 

 tary and public difcuffion ; and an excellent treatife of Mr. 

 Jeremy Bentham, of which a new edition was publifhed in 

 18 16, has claimed peculiar attention. The prejudices in 

 which thefe laws had their foundation maintained their 

 ground, notwithftanding the ruins of the mercantile fyftem 

 to which they naturally belong ; and they foon derived fup- 

 port from an opinion in their favour, delivered by Dr. Smith, 

 in a work which powerfully operated towards difpelling the 

 other errors of the mercantile theory. Mr. Bentham was 

 tlie firft writer who openly and fyftematically attacked them, 

 and this he did with fuch fuccefs, as to produce a general 

 conviftion of their injuftice and impolicy. He afcribes, per- 

 haps, too much importance to rehgious bigotry : to this 

 purpofe, he obferves that the praftice of felf-denial was 

 fubilituted at a very early period for aftive virtue ; and as 

 the greater the temptation the greater the merit, much vir- 

 tue was arrogated to themfelves by thofe who declined the 

 ufe of means for making money, which was generally re- 

 garded as a favourite purfuit. Hence, he fays, the obvious 

 method of making wealth produftive, by lending it for a 

 profit, was profcribed as an illegal gratification ; and befides, 

 as the Jews were much addiftcd to this praftice, and had 

 the money-trade principally in their own hands, the Chrif- 

 tians, very anxious to avoid their cuftoms, deemed it pecu- 

 liarly finful. The authority of Ariftotle had aifo great 

 weight in determining the judgment and conduft. (See 

 Interest. ) Our author alfo remarks, that the natural 

 antipathy of the fpendthrift towards the faving man, arifiiig 

 from the envy with which he regards him, had no inconfi- 

 derable influence. To which it may be added, the feehng 

 excited againjl a rich man, as the trader mufl always be com- 

 pared with the borrower, and in favour of a poor one, by 

 the very circumftance of the former making the latter pay 

 for half, according to his necefTities, and reaping a profit 

 without any labour or even trouble on his own part. The 

 rcafons commonly alleged in juftification of the laws againft 

 ufury have been fuch as follows ; the firft is the prevention 

 of prodigalitv. Mr. Bentham replies, that if this be a good 

 work at all, it is at leaft a work of fupererogation, but in 

 reality, the reftraints under confideration do not operate in 

 this way. Would any man of found mind think of giving 

 fix per cent, for the ufe of money, howfoever preffing his 

 wants, if he could get it for five ! Or, can a man, how- 

 ever prodigal, be prevented from felling all he can get rid 

 of by fale, and pledging all which he cannot fell ? Thofe 

 who have fecurity of any kind to offer the lender are not 

 protefted by the law ; for the lender never makes his bar- 

 gain upon a view of the borrower's cbaraftcr and habits, 



but 



