Usury Stated Overthrown, Treatise · Part 2 · Section 9 – Section 16
NUM. IX.
But here the Uſurer will inſiſt upon his uncertain Gain thus. You tell of Sureties, Bills, Bonds and Pawns: but what if the Borrower himſelf and his Sureties break, or he and they for ſome Crime may have their Goods confiſcated: again, he or they may flee the Country, or keep the Houſe; Evidence may be ſtollen, or loſt by Fire, or Wars, or otherwiſe caught out of my hands, as ſome have been; and Lands may be mortgaged or engaged to others before me, I not knowing it, and ſo I may loſe all, as ſome lately, both Miniſters and others, have loſt Hundreds by other Men's Breaking: and therefore how can you ſay that the Uſurer adventureth not, but is certain of his Gain.
Whereunto I anſwer,
1. That ſo every body adventureth all that he has; for he may loſe all, as Job; either by Fire, by Thieves, by Enemies in a time of War, as I did in the German Wars: which notwithſtanding, it cannot be ſaid that he is ſuch an Adventurer as the Ship Adventurer is, who taketh for it ſufficient Pawns, or who keeps it by himſelf, under Lock and Key in a Tower, or ſtrong Houſe, Moated, and having a Draw-Bridge to it, as ſome have.
To make this more plain, I will illuſtrate it by this Example.
We have in England two ſorts of Merchants, Merchant-Adventurers, and Merchant Retailers. The Retailers cannot but hazard much, becauſe he muſt truſt often; ſometimes for round Sums, ſometimes for a great while, ſometimes upon the Borrower's bare Word, or Hand to his Book: which Aſſurance no Uſurer will take: and yet no Man calleth him a Merchant-Adventurer, neither is he aſſumed into their Hall and Company. How much leſs then can an Uſurer be called an Adventurer of his Goods, who will neither truſt to a Man's bare Word, nor for any long time; but only from half Year to half Year, and then not without very ſufficient and Landed Men, bound with the Borrower, and ſuch like Securements.
2. I anſwer to the Uſurers pretended Adventuring thus.
There is a twofold Adventuring.
1. Quoad Eventum, In reſpect of the Event.
2. Quoad Media, In reſpect of the Means.
1. In reſpect of the Iſſue: So the Uſurer adventureth, and no thanks to him for it: for he can do no otherwiſe, becauſe none can ſee the end of things when he begins them, becauſe the All-ſeeing God, by his over-ruling Providence, will work as he pleaſeth, ſometimes beyond Means, ſometimes without Means, ſometimes contrary to Means; ſo that none can tell certainly what will be the End and Iſſue of things, and ſo the Uſurer alſo cannot be altogether ſure.
2. In reſpect of Humane Means: So the Uſurer maketh his Uſury as ſure and certain as it can be made, and is no Adventurer, nor can be, in Humane Reaſon. I will inſtance for the Dilucidation of this, in that which is written, Act. 12.1, 3, 5. where Herod is ſaid to have apprehended Peter, and caſt into Priſon, and delivered to four Quaternions of Soldiers to be kept, and bound with two Iron Chains; and laſtly, that he cauſed a Watch to be kept before the Priſon Door, and about Peter's Lodging, that he ſhould not eſcape: which notwithſtanding, by the extraordinary Providence of God, he eſcaped. In which caſe, who will ſay, that Herod, having uſed all ſuch means for Peter's ſafe keeping, did adventure Peter's eſcape. Even ſo, when the Uſurer hath bound the Borrower with Bonds and Pawns, as it were with Fetters (as (a)Plutarch de non foeneraudo.Plutarch ſpeaketh;) and when he hath tied him as faſt, and made him as ſure as his own Head can deviſe, or Laws will permit; it may be, that one way or other, not fore-thought or fore-ſeen by him, God, by his Providence, may defeat him, as ſome have been defeated by the unexpected Breaking of ſome great Men, thought to be as ſufficient as any, and being accounted very honeſt Men too. But can or will any wiſe Man ſay, that the Uſurer adventureth as Adventurers do, or means to adventure the Principal? No, no, For, becauſe he will not adventure, he will not lend but to the (b)Pleading for ſuch lending to the Rich ſo much as he doth for that very cauſe.Rich, and ſuch as can give him ſufficient Security; and not to the Poor, who cannot. Nemo foenerator pauperi, None will lend to Uſury to a poor Man, ſaith the fore-mentioned (c)Plutarch, ibid.Plutarch. Nay, therefore the Uſurer will not lend two Years together to a rich Man, but with new Sureties, for fear that he or they ſhould be undone in few Years by Uſury; and ſo, not being able to pay, he ſhould loſe his advantage.
I cloſe up therefore this matter with great (d)Luther de Taxand. Uſura, Tom. 7.Luther's words. And yet will not the Uſurer take upon him any Adventure or Hazard, either in his Body or Goods: And with pious Bolton's, Uſurers love not to be Adventurers.
NUM. X.
The Champion adds to his Reply, That there is a proportionable Gain (in Ship-Loan) that anſwereth the Hazard, ſeeing that he that adventureth taketh three times the Gain, or more, it may be, than he that lends upon Uſe.
Whereunto I anſwer, And yet I have heard diſcreet Men ſay in diſcourſing with me about this thing, that it is obſerved that Men, and Uſurers eſpecially will rather lend for Six in the Hundred, than adventure their Money at Sea, becauſe of hazard. And I do obſerve it my ſelf, that our great Men, which are great Uſurers, do generally and uſually lend for Six in the Hundred upon the Land, rather than for Twenty upon Ships for the ſame cauſe; not fearing that the Debtor will break (which the Champion adds) becauſe Uſurers have ſo many Strings to their Bow beſides, if he ſhould break.
But ſome will ſay, Who, beſides you, is for this Ship-Loan?
I anſwer, both Civilians, and many pious, learned and able Divines.
1. Civilians, By whom it is called Foenus nauticum, Nautical Fenory, and defined thus: (a)De Naut. Fen. 22. D. 2. c. 33. vult. Juriſp. l. c. 34.A Creditor's Gain which he gets by his Money lent to one which navigateth, and goeth over Sea, taking the hazard upon himſelf: where note,
1. That Juſtinian has ſtinted this kind of Uſury at Twelve in the Hundred, that none may be oppreſſed by its Exceſs.
2. That that great and Godly Lawyer (b)Hottoman. l. de Uſuris.Hottomannus doth not alſo approve of it; but alſo refels and confuteth thoſe which held (c)Decr. Greg. l. 5. tit. de Uſuris.that the Canon Law is againſt it: ſhewing, that either the Text in that Law is corrupted, the word (Not) being omitted; becauſe Gregory, who is the Author quoted, as being againſt it, doth expreſly exempt Ship-loan from Uſury, by him condemned, together with two Caſes more: or elſe, that their Law muſt needs be very unreaſonable, ſeeing where is Hazard, there may be Gain required, as the due price thereof.
NUM. XI.
2. I ſubjoyn Divines. And,
1. Renowned and moſt learned (d)Danaeus de Uſuris.Danaeus; whoſe words are, It is a Queſtion put forth by ſome concerning Nautical Fenory, whether it may be lawful? And my Anſwer is, That this kind of Uſury is juſtly diſtinguiſhed by the Doctors of the Civil Law, becauſe in it the hazard of the Money and Principal is by the Creditor taken upon himſelf.
2. Pious and erudite (a)Bullinger.Bullinger, whom Danaeus nominates, as an A prover of it; quoting his firſt Book written of that Subject.
3. Aretius; who ſaith, The Nautick Fenory was granted to Merchants and Sea Negotiators; and that either for their Navigation or for their Return too.
4. That great and famous Biſhop (c)Biſhop Downam upon Pſal. 15.5.Downam writeth thus, Uſury is diſtinguiſhed from three other things, to which the name of Uſury eſpecially in the Latin Tongue is aſſigned, but are not this gainful Uſury whereof we ſpeak. The firſt of theſe is Adventurers Uſury, improperly ſo called; which in Latin is called Nanticum Foenus, and is Gain, or Allowance made for Money, which is tranſported beyond the Seas at the peril and hazard of the Creditor, contrary to the Contract either of gainful Uſury or free Loan, and ſeemeth to draw near to Partnerſhip. The manner whereof is thus, I deliver to a Merchant, who is to travel beyond Seas, a ſum of Money for him to uſe in Negotiation, as he thinks beſt for his advantage; conditioning with him, that if his Ship miſcarry, I will loſe, not only my hope of Gain, but alſo the Principal it ſelf: But if his Ship ſhall come ſafe to Land, by the Arrival whereof he is ſure of good Gain, I look for an Allowance proportionable to that Hazard which I ſuſteined. And this Hazard Men were wont to undertake, either for the whole Voyage, covenanting for a certain Gain if the Ship arrived ſafe at the ſame Point from whence it firſt ſet forth. Which kind the Grecians call foreign. Or elſe, for the one part of the Voyage, as from one Port to another, as from London to Venice; which they called foreign, &c.
And a little after he ſaith farther; And therefore Adventurers Money may be allowed, not only in trajectatia pecunia, in Money ſent over Sea at the Creditor's Peril; but alſo in other caſes, wherein the Creditor ſuſteineth the like hazard.
Provided always, that there be an Adventure, or Hazard, in truth, and not in pretence only. Thus this great Prelate.
(b)Aretius de Uſuris: with whom Rudaeus and Demoſthenes, do ſymphonize and agree.NUM. XII.
But is not the Scripture againſt this Adventuring? ſome will ſay.
I anſwer, No; becauſe no ſuch Prohibition: but it is againſt that Uſury only, which is not only more than the Principal, but bites too, (a)Uſura generaliter Serpentis inſtar mordet, Arias Mont. Malvend. Beſa.as all common Uſury doth; either the Borrower, or Commonwealth, or Poor, as has been formerly at large ſhewed; and that wherein is no adventuring of the Principal, as Divines take that to be the ſenſe of that place, Luk. 6.35. at leaſt in part, that a Man in ſome caſes muſt not expect the Principal it ſelf. So that the beſt definition of Uſury, which is going, taketh in Hazard and Adventuring, which the Uſurer will not be at; as in the ſaid definition by me ſet down above it is to be ſeen.
I add, that the Scripture is ſo far from being againſt it, as that it commends rather the vertuous Woman for being like a Merchant's Ship, bringing her Food from afar, which maketh her an Adventurer, adventuring in Ships at Sea, becauſe a Merchant's Ship is expreſly named, and ſhe is ſaid to bring her Food which ſhe adventureth for from afar, viz. far from her home. I add, that her adventuring muſt needs be by others too, becauſe Women married to Husbands (as ſhe was) do not uſe to go in Ships (though ſhe be compared to a Ship) but adventure by others in their Ships, as it is well known how uſual a thing it is. So that we need not ſcruple this Adventuring upon this Account, and alſo becauſe it is a kind of Society, (b)His words are, Which (Nautical Fenory) ſeemeth to draw near to Society, Biſhop Downam upon Pſal. 15.5.as learned Downam, in his fore-quoted place, declareth it, provided,
1. That we do not (c)Which to prevent, the Emperor Juſtinian, as I ſaid, ſtinted it.exceed in the Gain we agree for.
2. That we do conſider the Employer of our Money, if he be a Loſer, and cannot, when the Ship returns, pay ſo much as we expected. This I mention, becauſe I will not make my ſelf guilty of other Men's Sins, nor juſtifie any Iniquity in Traffick, and in Adventuring eſpecially, becauſe I know that much Oppreſſion is committed by it, if theſe Cautions be not obſerved.
NUM. XIII.
But I muſt anſwer a ſecond Queſtion more fully.
And why may I not take Six in the Hundred, when the Adventurer takes Twenty, or more?
I anſwer, No.
1. Becauſe he may loſe Principal and all, which is very uſual, the Seas being dangerous: whereas Uſurers very ſeldom loſe both.
2. Becauſe Uſury is expreſly forbidden by the Word of God, and condemned, Deut. 23.19. Ezek. 18.12, 13. and Adventuring is not, as but now it was ſhewn.
NUM. XIV.
A third Queſtion remaineth yet to be reſolved.
And why may not I take Six in the Hundred, when the Merchant or Shop-keeper gets I know not how much by my Money, which he borrows for ſo ſmall a matter as Six in the Hundred is?
I anſwer,
1. Becauſe he is at a great coſt, if he be an Owner of Ships, to build, repair, and ſet forth his Ships.
2. His pains are great: but thou takeſt no pains at all, Uſury being a gainful idleneſs, as (a)Bolton in his Diſcourſe of Uſury.one calls it, whereby men do eat of the ſweat of other mens brows. For whether they eat or drink, ſleep or wake, work or play, be ſick or whole, their gain cometh in by Uſury alike; when the borrower muſt wake and work, and has ſcarce time to eat his Meat many times when he is an hungred, and to drink with a Friend when he is a-thirſt.
3. His hazard is great; becauſe if he be a Sea-faring man, he may loſe his Ship, Goods, life and all by Tempel…s, Ice, Pyrats, and Enemies: And if his Dealings be upon the I and, he may be undone by bad Debts and Pay-maſters, whom he muſt truſt: for his Debtors may break and run away; and then how ſhall he recover his Money to pay thee thy Uſury, or the Money which he hath borrowed of thee, and for which being arreſted, he may be carried to Priſon by Bailiffs, not being able to pay thee? Whereas thou haſt Securities and Sureties and Leaſes bound to thee for thy Uſury-money, and therefore art in no ſuch danger, and in no ſuch hazard as he is, unleſs God by an unexpected Providence croſs thee, which but ſeldom happeneth. I have read in S. Ambroſe, that ſome poor borrowers Corps have been arreſted for Debt by Uſurers, and their Children carried into Captivity: but never did I read (to my beſt remembrance) that Uſurers have been ſo uſed, becauſe they uſe to make themſelves as ſure of their Principal and Uſe as the wit of man can poſſibly do it.
NUM. XV.
Thus much concerning hazard and adventuring by Ships, &c. in the next place I muſt come to Compacting: For the Champion proceeds, thus he goeth on, it is Gain compacted for; ſo much thou ſhalt pay me.
Reply. Let it be remembred that the Law ſtints and limits the ſum, and ordinarily to take what the Law alloweth, I ſee no injuſtice, &c.
For anſwer whereunto I ſay, That I do utterly deny his ſaying, that the Law alloweth to take what Uſurers take; and leſt it ſhould be ſaid I deny this out of mine own head and preſumption, let that be remembred which the Law it ſelf ſaith, in the Statute of Jacobus 21. intituled an Act againſt Uſury, Provided, That no words in this Law contained ſhall be conſtrued or expounded to allow the practice of Uſury, &c. Which Anſwer is given by (b)Downam in Pſal. 15.5.Downam alſo, who as a Biſhop was one who was at the making of Laws in Parliament, and therefore underſtood the Law better doubtleſs than this Novice: His words are, by the Law it ſelf it evidently appears, that it doth not allow Uſury as good, but permit as evil.
NUM. XVI.
As for his telling again of Intereſt, and bringing in again of Spanhemius, and repeating of his words ad nauſeam uſ que I wonder why he will do ſo: But ſeeing he doth, I refer him to that which even now in this Tract I have ſo largely handled, to anſwer him in that which he hath formerly objected againſt it. He addeth (ſaith he farther) or expects or intended, and then tells me (I think a good definition ſhould not be disjunctive) whereunto I anſwer. This ſheweth what a poor Logician he is, and how little his skill is in his judging of a good Definition, bringing againſt him ſuch like Definitions, which have been made by wiſer heads then his is. And
1. That of (a)Dr. Sanders of Uſury.Dr. Sanders, Uſury is all manner of gains, which is either bargained or hoped for, (juſt as I ſay in my Definition) by the force of the Contract of giving to Loan, whether Money be lent, or Oyl, Corn, Wine or any like thing that is ſpent, with the firſt Natural or proper uſe thereof; even as I ſay likewiſe: where note, that no leſs than three Ors are in this great Doctors Definition; ſo that if this great Doctor were now alive, I would deſire this Champion to go to Lovanium where he lived beyond the Seas, to learn of him to make Definitions.
2. So the (b)Wittemb. in Theſſ. 2.Wittemborgs in their Definition, have their two Vels, or ORS.
3. And Gabriel Powel, that great OXFORD Scholar, has his OR in his Definition alſo, as thus. All gain that contrary to the word of God is expected or exacted (juſt as I ſay) above the Principal for the very auty of lending, is unlawful and Damnable; and then Uſury is ſuch: and for this he was never taxed or confuted by any of that Famous Univerſity that ever I heard of. So that if that great Scholar were living at Oxford now, I ſhould adviſe my Adverſary to go to Oxford and to tarry there a little longer then he did, when he was there, to learn of him how to frame Definitions, ſo as that they may paſs for currant and not be cenſured as he cenſureth mine.