Commentary on Genesis and Exodus, Theological treatise · Chapter 22 · Questions · Question 46 – Question 49
QUEST. XLVI. Whether all increase by the loane of money be unlawfull.
FVrther, as these kinds of contracts are of the nature of usury, though commonly they are not so taken: so likewise there may grow some increase and advantage in the use of money, and yet no usury committed. Here, then it must be considered, whether it be unlawfull to receive any gaine at all by the use and occupation of money. Where I find there are three opinions: 1. The Civill and Imperiall lawes doe generally allow or tolerate all kinde of usury, as is before shewed, quest. 43. But the unlawfulnesse of usury is likewise declared before, quest. 44. 2. Contrariwise,Concil. Viennens. Concil. Tarroconens. c. 3. Concil. Lateranens. part. 16. c. 1. the Canonists and Canon law doe condemne all usury and interest whatsoever: Si quis affirmare praesumat exercere usuras non esse peccatum ▪ &c. If any man presume to affirme that it is no sinne to practise usury, wee decree him worthy to bee punished as an Heretike. And herein the Canons consent, Vt ipsum quod dedit sine ullo augmento acciptat, &c. That what one hath given or lent, he should receive without any advantage or increase. Yea the Canons are so strict, that they allow not any advantage to be made of money by usury, to redeeme the Christians therewith, that were in captivity among the Saracens. 3. But the meane betweene both may bee most safely held: for as there may be certaine contracts of usury, where there is no gaine, or any increase above the principall, as before is manifested, qu. 45. 1. So, Non omne mutuum, quod accedit super sortem est usura, &c. Not every loane, which bringeth some gaine above the stocke, is to be counted usury. As it may appeare in these particular cases.
1. Concil. Lateranens. sub Leon. 10. sess. 10. This case was put, Demontibus pietatis, Certaine cases rehearsed, wherein a moderate gaine above the principall, is not unlawfull.&c. Of the bankes of money, which were erected by Christian Magistrates, only for the benefit of the poore, that they might there have money at their need; it was there decreed, that for the maintenance of the officers and Ministers of the banke, which attended that businesse, aliquid moderatum supra sortem salvatur, &c. that some small thing above the stocke might be paied by those which made profit of the money there borrowed, to that end onelyonly for the maintenance of the officers. And all the whole Sinode consented, excepting onelyonly one Bishop, who alleaged, that he had learned by experience▪ praefatos montes plus damnosos esse quam miles; that the foresaid bankes were more discommodious, than profitable. But notwithstanding his dissenting, the foresaid decree was confirmed.
2. Certaine orphans have a stocke left them, which will soone be spent, if they should live onelyonly of the stocke: may not their tutor or guardian put out their money to them which may make some profit by the use thereof, Ad res necessarias pupillo subministrandas, to minister things necessary to the pupill and orphan? Gallas. Simler.
3. Eadem ratio exulum & peregrinorum est, &c. There is the like reason of exuls and strangers, which are not permitted to use any traffique in forraine parts, where they sojourne, and so can have no maintenance but by the use of their stocks, Simler.
4. A man borroweth money for a certaine time, hee maketh profit of the money, and payeth it not unto the Creditor at the time appointed, whereby he is much damnified: Nemo certe (ut arbitror) negabit usur accreditori solvendacorater sortem, vt p…rsetur ejus jactura, &c. I thinke surely no man will deny, but that some gaine should come unto the Creditor above his principall, to recompence his losse, by not having his money in due time, Calvin. Hereunto the Civill lawes give consent: Vsur… solvendae ex mora depositi;Cod. lib. 4 tit. 34▪ leg. 2. Gard …. Vsury is to bee paid for delay in matters committed to one of trust. Vsurae debentur ex pensione non solum; Vsury is due for a pension not paid. Vsura debent… pro d…te ad diem non prastita, &c. Vsury is due for a dowrie not paid at the day.
Ibid. tit. 65. leg 17. …letian. Cod. lib. 5. ti… 11. leg. …. Gardian.5. Si quis diviti mercatori pec…lam suam utendam dedit, &c. If one put forth his money to use to a rich Merchant, may hee not receive part of the gaine, which the Merchant maketh by the use of his money? Gallasius.
6. A rich man is about a purchase, and borroweth a peece of money to goe thorow with his bargaine: he that lendeth the mony, Au non poterit ex fundi reditu fructum aliquem percipere, &c. may he not receive some profit by the ground, untill his principall be restored? Calvin.
These and divers such cases may bee brought, wherein either the gaine and usury is not unjust, or because the name of usury and interest is odious, it is indeed no usury at all; because in these contracts, frater non laditur, &c. our brother is not hurt or hindered, and so they are not against charity, Simler. And in all such transactions, where that rule is observed, Quod tibi non vis fieri, &c. That which you would not to bee done to your selfe, doe not to another, there can be no oppression or injustice, Vrsin. p. 703. So that where a man in the loane of mony offereth no other measure to his neighbour, than he would be content he should mete by unto him againe, the rule of equality being observed, no great offence or inconvenience can ensue.
Certaine considerations, which make the receiving of some gaine by the loane of money, not unlawfull.4. But that we may yet grow to a more certainty in this matter and question of the loane of money, there are foure circumstances to bee considered: 1. Who lendeth. 2. To whom. 3. For what. 4. In what manner.
1. He that lendeth his money upon usury, must not bee such an one as maketh it his trade to live by letting of money: but such an one, as whose necessity in some sort compelleth him to take some advantage by his money for his necessary maintenance: as strangers, exiles, and orphans, as in the second and third cases before propounded; who either cannot, or know not how to employ their stockes: but they which have other meanes to maintaine themselves by, as lands, rents, offices, have not the like warrant. And of all other trades, to be a professed Usurer, is most odious. And therefore the law here saith: Thou shalt not be an usurer, or exacter unto him: that is, as such an one which professeth himselfe to bee a banker and usurer.
2. They to whom money may be lent upon usury, must not be of the poorer sort: for to such is simply forbidden to lend upon usury, vers. 25. To lend then unto the rich for some profit, is not against this precept. But here three kindes of persons are to bee considered, to whom money is to bee lent; some are so poore, that they are not able to render againe that which they receive: some are rich and have no need, in regard of any necessity, to have any thing given, or lent: some are betweene both, who are able in time to repay that which they lend, but yet upon some urgent occasion are driven to borow: of these specially this law speaketh: that unto such as are constrained to take money for their necessity, as either to pay their rent, or to save the forfeiture of a bond, or to redeeme a morgage; to such wee are bound to lend freely, without any recompence. To the first we ought to give rather than lend: Deut. 15.11. Because there shall be ever some poore in the land, therefore I command thee, saying, Thou shalt open thy hand to thy brother, to thy needy, and to thy poore in the land. VntoUnto the third sort, namely the rich, wee are not bound to lend freely, as unto the poorer sort: neither is this against the rule of our blessed Saviour: Lend, looking for nothing againe, Luke 6.35. For of the poore we should not expect any thing, but lend freely: yea if their necessity be urgent, and our estate can beare it, the case may be such, as that wee ought to forgive them the principall and all, Marbach. So then, of the first we must neither looke for increase, nor principall, but give unto them of almes: of the second we may expect the principall, but not any interest: of the third wee may receive both. And yet this properly is no usury, but rather a gratuity; that hee which hath gained by anothers mony, should, to shew his thankfull minde, make him, which was the occasion thereof, a reasonable partaker of his gaine: Gratitudo animi lege naturali mandatur; This gratitude and thankfulnesse of minde is commanded even by the law of nature, Borrhaius.
3. The interest which is received must be moderate, not excessive: Yee shall not oppresse him with usury: the word is neshech, biting: it must not bee a biting, nipping, or devouring usury. The Imperiall lawes gave great liberty to take what usury soever was agreed upon, as before is shewed, quest. 43. yea they allowed hemiola or sescupla, to take halfe so much as the principall: which are called sequialtera usura, usury to the halfe part: as for ten Bushels of corne to exact fifteene, as may appeare by the law ofaCod. Theodos. lib. 2 tit. de usur. leg. 1. Constantine. But this kind of usury is directly forbidden in the bC. 17. cited distinct. 47. c. 2.Nicen Councell. So the lawes of this land doe moderate excessive usury: to take above two shillings in the pound, and ten in the hundreth, is a forfeiture both of the principall and interest.
4. This consideration given for the loane of money, must not be ex pacto, it must not be agreed upon by any certaine compact and covenant: as the words here are, lotesimur, non imponetis ei: you shall not impose, or lay upon him usury. As it is not lawfull to covenant with a man certainly to pay so much; he may lose by using the money, hee may bee in hazard also of the principall: for the lender then to receive a certaine gaine, where the borrower is a certaine loser, were not just. Such indifferency must bee used, as that the borrower be contented, as to be made partaker of the gaine, that commeth by his money, so also proportionably to beare part of the losse. These former rules observed, and circumstances considered, I see not why all receiving of increase by the use of money should bee condemned. And herein I mislike not Calvins conclusion:Calvin. Comment. in hunc locum. Vnde sequitur usuras hodie non esse illicitas, nisi quatenus cum aquitate & fraterna conjunctione pugnant; Whence it followeth, that usury now is not unlawfull, but as it impugneth equitie and brotherly conjunction and society. Likewise Gallasius: Quare non vid…, quare omne pecunia em… lumentum sive usuram sine ulla exceptione damnemus; Wherefore I see not wherefore wee should condemne all profit or usury of mony without all exception. Simlerus to the same effect: Comr…ctus, ubi fr…r non l…ditur per mutuum, charitati non repugnat; Such contract, where the brother is not hurt by lending▪ is not against charity.
5. But it will be thus objected on the contrarie, against all kind of gaine and increase that commeth, by money.
1. In taking money for the use of money, one selleth that which is not in his power: for the use of money consisteth in him that receiveth it.
2. It maintaineth idlenesse, when men are suffered to live of their money without the sweat of their browes.
3. It is against nature, that money being not apt to increase, should beget money.
4. It was forbidden and prohibited to the Israelites to take usurie of their brethren, saving onelyonly of the Gentiles. And Psal. 15.5. Ezech. 18.17. all kind of usurie and increase is condemned.
5. Our blessed Saviour biddeth to lend, looking for nothing againe, Luke 6.
Answ. 1. Though another man use the money which is lent, yet the lender is the occasion thereof: and in the meane time he wanteth the use of it himselfe: therefore it is not unjust that a thankfulnesse be acknowledged for the use thereof, which the other is the cause of.
2. Such as live only of letting of money, and make a trade of it, are not to be suffered: but such rather which by that meanes are relieved, and cannot otherwise be conveniently maintained, as orphanes, strangers, exiled persons: as before is shewed.
3. Money of it selfe begetteth not money, but being employed by mans industrie, it is a fit meanes to increase ones stocke: so neither is a field fruitfull of it selfe, unlesse it be tilled. Ambrose indeed saith: Vsurae arte nequissima ex auro aurum nascitur, &c.Ambros ser. …. distinct. 47. c. …. By the wicked skill of usurie gold is begotten of gold, &c. He speaketh of vnjust and insatiable usurie: when as the usurer will extort his interest compounded for, he careth not at whose hand rich or poore: whether he gaine by it or not: for so it followeth in the same place, nec finis unquam, nec satietas aderit cupiditati, &c. there will be no satietie or end of coueting, &c.
4. That was a politike law given unto the Israelites, as it may appeare by that they were permitted to take usurie of the Gentiles; that by this meanes they might grow rich, and the other poore. And the speciall intendment of the law is, that they should not oppresse any, especially the poore, by usurie: which is also now held to be unlawful. In those places objected, the word is neshech, which signifieth biting usurie, which is indeed against the rule of charitie.
5. To the poore we are bound to lend freely, yea to give them principall and all, where their extreme need requireth: and so is that place to be understood.
Thus much I thought necessarie to adde in this place concerning this great and weightie question of usurie: wherein if the rules before prescribed were duly observed, we should have fewer Usurers, and nothing so many, or none at all eaten up and devoured of usurie. And for a finall resolution herein, this I conclude, That although all circumstances considered, some increase by money may be tolerated: yet it were better that no such urgent occasion were giuen. And as S. Paul saith concerning rich men, that that they should lay up in store a good foundation against the time to come, by being rich in good works:1 Tim. 6.18. so it were better for them which have money, that they looke for the increase thereof in the next world, at the hands of God, by using it here to the reliefe and comfort of their poore brethren, than to seeke earthly gaine and transitory commodity by it: as Leo excellently saith: Foenus hoc solum aspicere & exercere debemus, ut quod hic misericorditer tribuimus, à Domino, Leo 1. Epist. 1▪ Ca…. 4.qui multiplicitar & in perpetuum mansura retribuat, recipere valeamus; We must only looke unto and exercise this usurie, that what we here bestow mercifully we may receive of the Lord, who giveth abundantly, and such things as remaine for ever.
QUEST. XLVIII. Whether it were lawfull for the Iewes to take usurie of the Gentiles.
NOw whereas here mention is made only of the poore brother, that they should not oppresse him with usurie, but it is not determined what they shall doe herein toward the Gentiles: therefore elsewhere it is directly expressed, that they may lend to a stranger upon usurie, Deut. 23, 20. 1. Where first the opinion of R. Salomon is confuted, who as Lyranus reporteth him, thinketh that it was vnlawfull for the Hebrewes to take any usurie, yea of the Gentiles: for the words of the text are very direct, that of strangers they may take. 2. Some thinke also that this was permitted unto them for the hardnesse of their heart, to take usurie of the Gentiles, lest if they had beene restrained of that liberty, they might hauehave oppressed their brethren with usurie, Genevens. But if this had beene permitted onelyonly for the hardnesse of their heart, it had beene in it selfe unlawfull: as they were permitted to give their wives a bill of diuorce, and so send them away: it shall then appeare, that it was not only permitted, but lawfull for them to take usurie of the Gentiles: as is evident by these reasons:
1. They are forbidden to lend unto their brethren upon usurie: now the Gentiles were not counted their brethren, but the Hebrewes only.
2. In other like cases the Hebrewes were privileged before the Gentiles: as the debts of the Hebrewes were remitted in the seventh yeare; so were not the strangers, though they were Prosely…es, and converted to the Jewish faith, Deut. 15.3. Of a stranger … maist require it, but that which thou hast with thy brother, thine hand shall remit. Againe, the Hebrew servants were … goe out free if they would, … the seventh yeere, … if they would not, yet in the … yeare of Jubile they w…e for a… liberty, Levit. 25.54. But the strangers which were servants, were in their possession and inherit…ce for euer they and their children, Levit. 25.45. The like privilege was here concerning the Hebrewes, that although they might lawfully take usurie of strangers, yet of them they could not, Tostatus. quaest. 16.
3. Neither of all strangers might they take usurie, but only of the Canaanites, which were ordained to destruction: those, and against whom, they had jus belli, right to wage battel, they might then as lawfully keepe them under with usurie, as use against them the sword, Simler. Hereupon Ambrose saith, Cui j…re inferuntur arma, huic legitima judicantur usura, &c. Against whome rightfully wee may beare armour, unto him also lawfully may we set usurie, &c. ubi ju… belli, ibi jus usurae; where there was right of making warre, there was right of taking usurie.
4. But this is the blindnesse and error of the Jewes, who thinke that they are warranted by this ancient privilege to take interest of the Christians now: 1. For both the time of their privilege is expired, Christ having broken downe the wall of partition, and made of Jewes and Gentiles all one, Tostat. quaest. 16. 2. As also wee are not of those Gentiles and nations, whom they had right to invade with warre, Simler.
QUEST. XLIX. What garment must be restored before the Sun set, which was taken to pledge, and why.
Vers. 26. IF thou take thy neighbours ra…ment to pledge, &c. 1. R. Salomon thus understandeth this text, that it is meant of the poore mans day garment, which must be restored untill the Sunne set, and then it might be fetcht againe until the morning, and so restored againe for the use of the day. But the text evidently sheweth, that this law speaketh of his night garment wherein he lieth or sleepeth. 2. Some doe understand it indifferently both of the day and night garment: that if it were used in the day, it should be restored in the morning, and taken againe at night: if it served for the night, it should be restored in the evening, and fetched againe in the morning, Lyran. Simler. And they presse the literall meaning of the words, ghalbo hashemesh, usque venire solem, till the Sunne come, which may be as well understood of the rising, as setting. But it is evident, that this phrase of the comming or entring of the Sunne, is used to signifie the setting or going downe of the Sunne, as Iudg. 19.17. And in other places: and beside, the letter of the text only speaketh of the night garment wherein hee sleepeth. And if it were his day garment, it had bin a trouble to the Creditor to fetch his pledge every evening, and to carrie it againe in the morning: for the poore debtor hauing but that one garment, could not goe and carrie it, being naked without it. It had beene also an inhumane thing for the debtor to be stripped and left naked in the fight of his Creditor. 3. I therefore here rather am▪ of Tostatus judgement, that this place is only understood of the night garment: the day garment, if the poore man had but one, could not be taken to pledge at all, no more than the upper or nether mil-stone, Deut. 24.6. or any other necessarie thing which the poore man lived by: but if the debtor had two or more garments, then one of them might bee laid to pledge, and it needed not to be restored till the debt was paid. 4. Cajetanus thinketh, that this night garment was delivered every night, and restored againe in the morning: the debtor was to carrie it againe to his creditor. And R. Salomon giveth this reason, why the pledge was restored every day: to set forth the merciemercy of God, which daily forgiveth our sinnes: Iosephus addeth also, that by this meanes the debtor might better bee put in minde of his debt. But I rather subscribe to Oleaster here, that this raiment which was to be restored before the Sunne set, was not delivered againe, because the poore debtor had continually necessarie use of it. 5. This is not only meant of the covering which he wrappeth himselfe in by night, but of any other part of his bedding, as his couch, pillow, or such like: because there is the same reason of them all: they helpe to defend him from the cold of the night, Gallas. 6. And this law is made for the benefit of the poore: Hic de paupere loquitur qui non habet nisi unam vestem, &c. He speaketh here of the very poore man which hath but one garment, and cannot live without it, Hugo de S. Victor ▪ 7. Two reasons are annexed: the one taken from common humanitie; it is his only covering: the other from the judgement of God, which the Lord at their crie will exercise upon such hard hearted Creditors, Iunius. A third reason is added, Deuteronomie 24.13. That the poore man having received his covering may blesse him.