Usury Stated Overthrown, Treatise · Part 2 · Section 7 – Section 8
NUM. VII.
But Reaſon perſuadeth me to make a full end of that great matter of Intereſt and Damage, becauſe I have been ſo long about it, if not too long: And to haſten forward, becauſe there remaineth for me another ſharp Encounter, which I muſt enter into about the Definition of Uſury, which is Foundation-matter. So that I muſt, before I enter, implore Heaven's Aid, looking up to the great God of Heaven for his Support in this great Combat.
My fierce Adverſary in this, begins his Combat thus.
His Definition of Uſury runs thus; Uſury is a certain and abſolute Gain, compacted for, or expected, and taken for the Loan of things, which may be conſumed in the uſe thereof; or whatſoeve… is, more than the Principal compacted for, or taken for the Loan of things, which may be conſumed in the uſe thereof.
From this laſt Definition, I ſhall ſay, Gain upon Adventure, which he holds Lawful, is Uſury, it being more than the Principal. Thus he goeth ro work, even very confuſedly, mingling the firſt with the laſt Definition: So that I ſhall be forced to anſwer him accordingly. And to cut ſhort, I ſhall,
1. Inſiſt upon adventuring moſt, which he mentioneth firſt, and moſt; ſaying, Whatſoever Gain ſo received or expected, is not abſolute and certain, but uncertain and conditional. Beſides, [a]And. to diſtinguiſh ours, I ſay, from common Uſury, as alſo learned Danaeus therein agreeth with me, ſaying, that This Ship Loan is juſt…y diſtinguiſhed from common Uſury, p. 208.this Limitation of Abſolute and Certain is not Scriptural, but added (it's like) to ſalve adventuring from Uſury, for all the other parts of the Definition agree thereunto; So doth Ambroſe.
Whereunto I reply,
1. That I am for the whole firſt Definition, becauſe the other is added for Brevities ſake, as the like is done by others; and ſo I ſhall,
1. Maintain abſolute and certain Gain: which he denies.
2. Adventuring.
[b]As alſo Uſher, that great and learned Arch-Biſhop of Armagh, doth; calling Uſury a certain Gain.1. Abſolute and certain Gain: which, to make it Scriptural, and to anſwer his Negative, I bring that notable place, [c]Pagnin… and Tremel. tranſlate it.Exod. 22.25. Thou ſhalt not lay upon him Uſury, the Hebrew is, and ſignifieth thus much, Thou ſhalt not impoſe; in Greek, foreign. And [d]Vatabi. in Ex…d. 22.28.Vatabl. obſerveth that it is verbatim from the Hebrew, Thou ſhalt not impoſe. Now Impoſitions are abſolute and certain. As for example, Impoſitions impoſed by Law are abſolute and certain. As when a Tax or Impoſition is granted by the King and Parliament, it is abſolute and certain, and muſt be paid: and ſo muſt Uſury impoſed be paid, and cannot be called uncertain, as the Champion is pleaſed to ſay.
But he thinks to make good his Saying by Gain expected, or becauſe it is not impoſed or compacted for.
Whereunto I anſwer, that though it be not impoſed or expreſly compacted for, yet tacitly, and ſo as that it is ſure and certain enough. Where, to make this evident, let it be noted,
1. That by the Lawyers a Compact is called a Covenant, and made [a]Lege 1. F. de pactis.both one and the ſame thing.
2. That there is a twofold Compacting.
1. Expreſſed.
2. Tacit.
1. Expreſſed, Which is alſo twofold.
1. Nudum, or Naked.
2. Veſtitum, or Clothed.
1. Naked, or Bare, by a ſole promiſe. As thus, I will lend you forty Pounds, but you ſhall pay me ſo much for the Loan of it. I will, ſaith the Borrower, and thank you too. So they compact by a bare promiſe.
2. [c]1 Pet, 3.21.Cloathed, And that is done three ways.
1. By Deeds, as by a Pledge or Pawn.
2. By Words, as in Stipulations and Fidejuſſions.
3. By Writings, as Bill or Bond.
All which Compactings make Uſury certain enough, as the World well knows; that is to ſay, humanitus. And hereof more hereafter.
2. But beſides this expreſſed, … there is a Tacit Compacting. As when an Agreement or Conſent is by neceſſary or probable Conſequence intended, although it be not expreſſed unto others. As for Example, [e]Summa Angelica. Tit. Matrimon.one uſeth this Inſtance; The Parents of two Children do, in their preſence and hearing, conclude a Marriage to be contracted and ſolemnized between their Children: the Children ſtanding by, hear the Conference and Concluſion of their Parents; but neither demand any thing, nor anſwer any thing, nor object any thing, nor reply any thing, nor affirm any thing, nor deny any thing that is ſpoken. In this caſe is intended the Conſent of the Children to the Concluſion of the Parents; And why? Reaſon preſuppoſeth, that if either Party had been diſcontented with the Match, they would by one means or other have ſignified their diſlike. Which I apply thus; So I come to a Man to borrow an hundred Pounds: You ſhall [b]Quod eſt contractus, quo res ita creditori obligatur, ut is in credito eo nomine ſecurior ſit. Doctor Fregius, p. 333.[d]Unde fidej…ſſor is added to a Stipulation; in novatione res, as Civilians term it. Doctor Fregius Inſtit. p. 335.have it (ſaith he] as others uſe to have it, though I do not mention it. Here the Borrower, and others, know that he looketh for ſo much Uſury; that is, Six in the Hundred: and ſo taketh the Money, and goeth away with it, ſaying nothing to it. Which, what elſe is it but a ſilent Compact? So that we have a common Proverb for ſuch Caſes, Silence is Conſent. And [a]Plutarch. l. de Immod. Verecund.Plutarch hath a Saying to the ſame effect, Silence is an Anſwer to a wiſe Man. And ſuch a Compact, though not expreſſed, yet maketh the Uſurer's Gain uſually certain too. You will ſay, How? I anſwer thus; The Uſurer knoweth by experience, that Men which ſtand upon their Credit will not be worſe than their ſilent conſent, and that they uſe to pay their Uſurer punctually; becauſe elſe they know they ſhall have no more Money of the Uſurer, what need ſoever they have, if they falter: and they know alſo the Uſurer's mind and practice, that he uſeth ſo to lend, becauſe he will not be reputed to be an Uſurer, who lendeth upon Uſury, and putteth down the Sum with the Principal: but only expects it, and takes it when it is brought to him. And ſo accordingly brings his Six in the Hundred as punctually and unfailingly as others which compact expreſly to pay ſo much Uſury as is impoſed by the Uſurer.
NUM. VIII.
2. As for Adventuring, or Foenus nauticum, Nautical Fenory, to make way for his cavelling about that, he ſaith, This Limitation of Abſolute and certain is added (it's like) to ſalve Adventuring from Uſury.
Whereunto I reply, 1. I grant that it is added to ſalve it from Uſury properly ſo called, not from Uſury generally ſo called, and in a large ſenfe accepted; as Gabriel Biel ſpeaks, [b]Gabriel Biel in 4. Sent. diſt. 15. q. 11. a. 1. Bulling. Decaa. 3. Serm. 1.Uſury is taken ſometimes very largely, for any thing which is taken in lending, above the Principal. Wherewith Bullinger [c] alſo ſympothizeth, as I ſhall ſhew when I come to my Antagoniſt's Authors, and to that Saying of ſome, that All Uſury is not unlawful. Upon which account it is called Foenus nauticum, Ship Uſury, though it be not Uſury properly ſo called, becauſe all the parts of my larger Definition, which I have ſet down, and am now proving, do not agree thereto; and by name, Abſolute and Certain Gain, even now aſſerted. So that his catching at St. Ambroſe, and other Men's ſhorter definitions (which will admit an Explanation and Amplification) will not ſtand him in any ſtead, becauſe I ſtand not chiefly, or only upon them, though I name them as generally moſt received.
2. I anſwer, That whereas he replieth to my Saying, But the Gain thereof (viz. of Adventuring) depends upon the Ship's ſafe coming and going. &c. And ſo doth the Gain of Loan, and the Principal too, depend upon many Men's ſingle Honeſty. Whereunto my Anſwer is, that Uſury-gain depends not upon Uncertainties and Caſualties which Navigation is ſubject unto, by reaſon of Tempeſts, Ice and Pirats: whereas moſt Uſurers will be ſure to ſecure themſelves by ſufficient Sureties to be bound with the Borrower, and by Pledges, Pawns, Mortgages, and Lands bound, and Judgments to make ſure both Principal and Uſe. So that by a great [a]Concil. Later. Sect. 10.Council Uſury is interpreted and ſet out thus: This is the proper Interpretation of Uſury, when men labour to get Gain and Encreaſe from the Uſe of a thing which groweth or increaſeth not; and that with no Labour or Coſt, no Danger or Adventuring. Which hath cauſed a great [b]The Author of Uſuries Arraignment.Divine to define Uſury thus; Uſury is, when a Man, not adventuring the Goods which he lendeth, covenants to receive again more than he lends; even upon this Conſideration, becauſe he lent them.
Which Definition is held to be the beſt.