Usury Stated Overthrown, Treatise · Part 2 · Section 28 – Section 31
NUM. XXVIII.
As for Rivet, I ſhall be very civil towards him, becauſe he was my very good Friend in the Univerſity of Leyden in Holland; and ſo we parted friendly, as his own Hand, wherewith he wrote his Motto in my Book of Friends, (which I have to ſhew for it) as a perpetual teſtimony of his Favour and our Friendſhip, witneſſeth: So that I will only ſet down ſome Authorities of ſome of the wifeſt men that ever lived in the world, to ſhew how they differ from him in that which is aſſerted by him, though in other things they may be good Friends enough. That which he holds, is much like that of Ames; only he tells of Wine in particular, that ſome ſay of it, (meaning Aquinas, whom I quote for it), That it and the uſe of it cannot be ſeverally ſold. Whereunto he anſwers generally, by a diſtinction of an ambiguity in the Word Uſus, (as Ames alſo doth) which, ſaith he, denotes either the diſtinction of Money, (watily leaving out other things, which are abſolutely and utterly waſted and conſumed, ſo as that nothing remains), or the commodity or benefit thereby gotten. Now though the benefit of Money and the right of diſtraction, or the uſe, cannot be ſeparated; yet is the diſtraction it ſelf one thing, and the commodity or gain, ariſing from that diſtraction, another: the diſtraction is but once made and computed, not twice; and gain is reckoned but once, the Principal is rendred for the diſtraction of the Money, but for an undue Office of lending, and for the time of the Money retained, and that the Creditor could not benefit himſelf by it, a recompenſation is not immerito poſtulated; mark, poſtulated or required. If my Friend had ſaid, That a recompenſation may be lawfully taken, provided it be not expected, againſt Chriſt's ſaying, Luke 6.35. it had been worthily ſpoken. He concludes thus. Therefore the Reaſon that the Principal is not twice ſold, but a real utility by the Creditor relinquiſhed, and the Debtor received; which is but ſeldom: even as in the ſetting of an Houſe, the uſe thereof is ſeparated from the Houſe. Thus he.
Now to anſwer what my Friend aſſerts, and that much more fully than Ames, for which I commend him, I will ſet down the Sayings of thoſe Worthies, which I ſhall quote, in anſwer to his, that the World may ſee how they differ, and judge accordingly.
1. And firſt, I will begin with the aforeſaid moſt wiſe and famous (a)Tho. Aquin 2.2. l. 78. a 1.Aquinas, whoſe words I will ſet down more fully than yet I have done; they are theſe, concerning Wine, thus Engliſhed. If a man would ſell Wine ſeverally and by it ſelf, and withal the uſe of that Wine ſeverally and by it ſelf, he ſhould ſell the ſame thing twice, or ſhould ſell that which is not; and ſo he ſhould manifeſtly offend Juſtice: And by the like reaſon he committeth Injuſtice, which lendeth Wine or Wheat to another, and demands two Recompences for the ſame; one for the thing it ſelf, another for the conſideration of the uſe.
2. To anſwer Rivet more fully, I ſhall quote (b)Chem. Loc Commun. to. 2. l de Paup. c 8.Chemnitius, who obſerveth, how (c)As alſo their Defendants do.Uſurers object, (d)Becauſe he can do with his Money what he pleaſeth, and buy what he pleaſeth.That they do not (e)Mark, Sold, not lent.ſell twice over the Goods or Principal it ſelf, but a real Commodity, which is abſent from the Creditor, and preſent with the Debtor, for the time he borroweth.
Which is anſwered thus: Grant that to be ſo, (for who will borrow any thing, but in reſpect of the real commodity which is ſuppoſed it will carry with it?) yet by that reaſon a man may take two Prices for many things that are fold: As for example, I ſell a man Bullion Gold: Now Gold, beſides the Metal it ſelf, which is precious, yea, and beſides the benefit which ariſeth from it, being coined, in Buying and Selling, it has alſo this real commodity, that it's profitable many ways to Phyſick and Health, as a ſovereign and cordial thing. Shall I therefore take one price for the Gold it ſelf, and another for the real commodity of Gold? What's now this, but to ſell one thing twice, and to take two Prices for one Commodity, and ſo to commit a monſtrous Injuſtice, as the Uſurer doth?
3. The moſt wiſe Senate of ancient Rome neither would nor did make (a)Uſum fructum, as they word it.Uſe and Fruit of thoſe things which are conſumed in the uſe thereof: for it could not do it, as it is declared in the Pandects.
4. And what ſaith (b)Cajus in Pandect. de Uſu fructu, l. 2.Cajus? It is not effected by the Decree of the Senate, that there be a proper uſe and fruit of Money; for Natural Reaſon could not be changed by the Authority of the Senate.
5. I cite Ulpian concerning a Recompenſation, which Rivet ſaith, a man may take for the diſtraction or lending, though a meer Heathen; to ſhame and to convince our Uſurers, who call themſelves Chriſtians; and to ſhew how Rivet and them differ: If I deliver Ten, for this end, to make thee Debtor of Eleven, ſaith Ulpian (c)U…pian & Proculus in Pandect. l. …. de rebus creditis.; Proculus thinketh, that no more can be certainly demanded or poſtulated (to uſe Rivet's own word) but Ten. Mark how theſe wiſe Heathens ſpeak againſt Uſury.
I ſhall deſire that great and godly Emperour (d)Juſtinian▪ in ſuis Inſtitur. de U…u fruct. I am the larger in all this, becauſe I cannot otherwiſe chu…, taking great delight therein, as having extracted the whole Corpus Juris, or Body of the Law, wherein all theſe Expreſſions are extant.Juſ…inian to ſpeak his mind, becauſe ſome haply will reject thoſe Heathens, though never ſo wiſe. His words are,
Uſe and Fruit is aſſigned in Lands, Houſes, and other things, ſaving thoſe which are waſted with the very uſe. For thoſe things receive no Uſe and Fruit, neither by Natural no… by Civil means; of the which ſort Wine, Oyl, Corn, and Garments are; to whoſe Nature numbred or ready Money approacheth next, becauſe it is in a manner worn out in the very uſing of it, by continual Exchange.
Thus this great and pious Monarch delivers his mind concerning that great Debate about things conſumed by and in the uſe thereof, That they cannot receive any Uſe and Fruit. Unto which words of his, I might add more, whereby he confirmeth what he ſaith by the Roman Senates example, ſaying. That it alſo did not make Uſe and Fruit of ſuch things, (as I alſo did even now:) So that by this his ſaying it appeareth alſo, how he and Dr. Rivet differ in this thing, and how he alſo is on my ſide.
7. There is alſo (a)Doctor Sanders.one who writeth thus: Uſury has its name from uſing, whereby is meant the Price of the Uſe of a thing: And becauſe we may uſe certain things, the ſubſtance of them remaining ſafe, as when we hire another Man's Ground, or dwell in another Man's Houſe, in that caſe it is lawful to take or pay Rent for the ſaid Houſe or Land; and he ſaith it again, and goeth a little farther, thus: Thoſe things that may be uſed and remain ſafe, may alſo render yearly Rents or Fruits, and the Lord of them may give or bequeath the Property and Ownerſhip of them to one, and the Uſe and Fruit to another: I add, Becauſe they may be ſevered, which thing cannot be done in thoſe Goods which are waſted, becauſe the Uſe doth diminiſh the Subſtance it ſelf; which may ſerve to anſwer Dr. Rivet's laſt words. As in the Location or Setting of an Houſe, the Uſe is ſeparated from the Houſe it ſelf; which is true in part, that in the Location of an Houſe the Uſe of an Houſe may be ſeparated from the Houſe: Whereupon it doth not follow, that even ſo in the lending of Money or Victuals, the uſe thereof and the things themſelves may be ſeparated, becauſe the uſe of ſuch things as Money and Victuals is the extinction thereof, as the Lawyers uſe to ſay.
NUM. XXIX.
8. But I muſt not omit the moſt reverend and learned (a)B. Downam, p. 246.Biſhop Downam, who ſaith, The uſe of Money is the ſpending thereof, as the uſe of Victuals is the eating of it; and in all things ſpent, thou canſt not, without great inequality, require one allowance for the thing, and another for the uſe, which cannot be reckoned apart from the thing, or ſevered from the property. If thou lend me Ten Loaves, thou ſhouldſt do very unequally with me, if thou ſhouldſt require Eleven; or if having taken the price of the Loaves themſelves, thou ſhouldſt alſo ask a price for the uſe, which is the eating of them: And in like ſort, if having lent me Ten pounds, thou ſhouldſt require Eleven, that is, Ten for the Principal, and One for the Uſe, which was nothing but the ſpending of the Money. Which alſo, together with the former Citation, anſwers, as one ſhould think, Dr. Rivet fully.
NUM. XXX.
9. But the Champion will reply, That his Diſtinction of the Ambiguity in the word Uſe, which denotes either the diſtraction of the Money lent, or the commodity and profit thereby acquired, is not fully anſwered; and therefore I will alledge a few Authors more, as he doth his two, to anſwer his Reply, and apply them.
And firſt, again, I will alledge the words of that pious Emperour (b)Juſtinian. Inſtit. de L…r.Juſtinian, ſaying, The Senate of Rome made not Uſe and Fruit of thoſe things which are conſumed in the uſe thereof, but by a caution did, as it were, conſtitute Uſe and Fruit.
2. So (c)In Pandect. 2.Cajus: By a Remedy introduced, there began, as it were, a certain Uſe and Fruit of Money to be taken: Where note, That whereas it is impoſſible in Nature to divide the uſe of thoſe things which are lent, from the property of them, the Civil Law has deviſed a way whereby it may be done, as the wit of Man could invent it; as thus▪ That the Lord and Owner receiving a Caution for the Value, ſhould ſuffer him to whom the Profit was aſſigned to enjoy the ſame thing frankly and freely in the mean ſeaſon, which Caution did ſtand to him in ſtead of his Propriety; and this is that the Emperor Juſtinian ſpeaks of, That the Senate made not Uſe and Fruit of ſuch things as are conſumed by the uſe of it; but aſſigned it, as it were, after a ſort.
Which I apply thus: Anſwerably whereunto, it ſhould ſeem, they have found out this diſtinction (a)As ſome call the Romans device, and this Diſtinction may be called ſo too.and ſhift, to make that which (b)That is to ſay, the ſevering of the Propriety of a thing and the Uſe thereof, in things which are conſumed in the uſe thereof.cannot poſſibly be, by ſaying, That it may be done by getting Gain out of things lent, and Money eſpecially, turned into Lands, Houſes, &c. which, ſay they, may be ſeverally computed, and ſo conſequently ſeparated from the things lent. But what is to be thought of it, I'le now declare. And,
1. When the Romans deviſed ſuch a thing as even now I mentioned, they did it harmleſly, conceiving that no man would have injury by it, as Divines judge of it, and not to eſtabliſh Uſury by it; for they are bitterly bent againſt it, inſomuch as that their Lawyers and Wife men confeſſed it, as (c)D. S.one aſſerts it, That Uſury is againſt Nature; and do not allow it, but only permitted it, as they permitted Fornication and Inceſt, ſaith a worthy (d)And that Uſury, if it ſhall become due, muſt be fetch'd about another way, which way is not able to diſcharge any Mans Conſcience, who ſhall take it upon him to follow it, ſaith a Learned Doctor.Writer: but what harm may come of ſuch Diſtinctions, God knoweth.
2. Beſides, that it will not do the thing aimed at, nor demonſtrate it, that the things lent to Uſury and the Uſe thereof can be ſevered, as by Reaſons and many Authors it hath been proved.
NUM. XXXI.
Laſtly, I will, after all this, put in but one Anſwer more to the Champions Examination and Oppoſition made againſt my Definition of Uſury, viz. That ſeeing he ſo miſliketh it, I will profer him ſundry other Definitions, for him to make his choice of either of them.
And 1. That of Cato, who being asked by the Roman Senate, what it was to commit Uſury, anſwered, as (a)Cicero in Offic.Tully has it, and (b)Calv. in Pſ. 15.Calvin too, It was to kill a man. Or,
2. (c)Sen. l. 7. de Benef.Seneca's, What is Fenory, and a Calendar, and Uſury, but Humane Concupiſcences, Names fought out extra naturam, without Nature? He could find a place for it in the Calendar, but not in Nature. Or,
3. If he miſlike theſe, becauſe they were Pagans, I tender unto him Mr. Turner's, who ſaith, (d)Rog. Turner in his Uſury Sermon.That it is terreſtris Piratica, a kind of Land-Piracy.
4. If that be too harſh, let him chuſe that of (e)B. Jewel upon 1 Theſſ. 4.Biſhop Jewel, which was in his time the Honour and Ornament of our Church, as [f]Humphred. Epiſt. Nuncup. in vita Juelli, p. 4.one ſtileth him.
Uſury, ſaith he, is a kind of lending of Money, or Corn, or Oyl, or Wine, or of any thing, wherein, upon Covenant or Bargain, we receive again the whole Principal which we delivered, and ſomewhat more for the uſe and occupying of the ſame.
5. Or elſe that of great Toſtatus; We commonly call that Uſury, when any thing is taken above the Principal.
6. Or that of the [g]The Lateran Councils Definition of Uſury.Lateran Council, counted the beſt of all: This is the proper interpretation of Uſury, when men labour to get Gain and Encreaſe from the Uſe of a thing which groweth or encreaſeth not, and that without labour, coſt, or danger, or adventuring. Thus that great Council defineth Uſury.
7. Or that of famous Archbiſhop Uſher, in his Body of Divinity, pag. 300. What is that which we call Uſury? It is Lending in Expectation of Certain Gain.
8. Or God's own; ANY ENCREASE (above the Principal, expectedly taken) Ezech. 18.8. Luke 6.35.
Now, I ſay again, let the Champion chuſe either of theſe Definitions, if he will not adhere to mine, nor to that of the Council of Agatha, nor that of that great man St. Ambroſe, he ſhall have my good liking and approbation in his Choice.
[a]As Ludolphi de Vita Chriſti, part 2. c. 49. Pet. de Anchorano Conſil. 49. Glanvilli l. 7. c. 16. Viguerii Inſtit. Theol. c 5. ſect. 3. Zegedini Loc. Com. p. 457. Turnbulli Serm. 4. in Pſal. 15.Many more Definitions I could have added, but theſe may ſuffice.