SIR, OF USURY.* THE servant's hasty departure will not suffer me to write so fully to the Question you propose as I desire, and would be requisite to give just satisfaction in an argument so much controverted and of so nice a consideration. I confess the name of Usury is odious; and the contract itself, in the strict acception of it, in its own nature hardly to be justified. But if it be taken, as usually it is amongst us, so as to include the contracts which by the Casuists are expressly called Interest, I dare not define it to be de toto genere unlawful; but the distinction between Usury and Interest is sometimes so little, that the intention of the Lender and conjunction of circumstances, especially of persons and times, can only make the difference, and so must wholly regulate the judgment and conscience of the Parties concerned in it. Interest is therefore so called because interest Mutuantis, either in respect of Lucrum cessans or Damnum emergens, to have his money in his own hand or at his own command, that so he might expend or employ it, some way or other, for his own benefit, by buying Land, or Leasing, or trading in some other Commodity, or the like; of the opportunity whereof if he deprive himself by lending his money to a neighbour or stranger to serve his occasions, or do him a courtesy at his request or in his need, it is all the reason in the world that he should have some proportionable consideration for so doing, which is called Interest. And if the compensation be moderate, and within, or rather below, that which the Laws allow, and that the Lender bona fide intends as well to do the Borrower a real kindness as to provide for his own increase, I take it to be so far from being unlawful, that it is rather to be * From P. 18. of the MSS. in the Library of Queen's College, beginning at p. 69 of a portion of the Volume inscribed by Bp. Barlow with this Title: 'Opuscula quaedam ȧvéκdora Domini Doctoris Roberti Sanderson Lincolniensis Episcopi τοῦ μακαρίτου.” commended as an act of Charity than condemned under the notion of Usury. But Usury is when a man intendeth merely to live upon his money, and to contract precisely for the loan, and looketh at nothing but only to have so much coming in; which how far it may be justified I am yet to learn, unless it be in such persons as by reason of blindness, lameness, or other impotency, want of years, or the like, are no ways able to follow any employment; or in such times as persons otherwise able to manage their own, could not with freedom, safety, or conscience use such ways of purchasing, trading, &c, as were fit for them. Yet to avoid the name of Usury, which is male coloratum howsoever, and of ill sound, I should advise any man rather to lend out his monies to be repaid by Annuities, gainful enough for a charitable Lender, and much easier withal for the Borrower (as to pay £20 for six years, or £25 for five years, for every hundred) than to take Use, although it were but six or seven per Cent.; and the principal still remain entire; and this way is in truth no more really than purchasing an Annuity; which, if not violated with circumstances, no man hath yet, for aught I know, held to be unlawful. If it be said, that in effect it is all one with Usury, because the gain is the same at five or six years' end as that of Usury would be, though that be yielded, yet may the one be lawful, and the other not both because the contract is of another kind, and the way of payment ordinarily more easy for the Borrower, and biteth not so insensibly in the mean time and so keenly in the close as the other doth. As also because the rate of Usury allowed by the Laws is the standard whereby men measure all other contracts, and account all bargains in purchasing, taking of farms, &c.,—better, or harder, as they come nearer or further from the rate. As for point of restitution in orphans or others, supposing Usury de toto genere unlawful, yet should not the Lender be therefore absolutely bound to restitution; for the obligation to restore ariseth not from the unlawfulness of the act done, but from the damage that the Borrower hath received therefrom: so that if A. hath made a contract with B., which contract was sinful in A. at the making, yet if a primo ad ultimum B. have received no loss or damage thereby, but rather a benefit, A. is not bound to restitution. SIR, July the 2nd. FOR putting money to Use, the first branch of your Letter, I cannot but well approve, as well of your resolution not to practise it at all, as of the reasons whereupon you grounded that resolution, viz. the bordering so near the confines of unlawful, the danger of self-indulgence, and the famous rule of pars tutior. You mention a book of Dr. Fenton's which you have lately read:* the man I knew about forty years ago, Preacher at Gray's Inn, and of reverent esteem among them, as being a man of excellent and equal parts, not only learned and eloquent, but withal pious, judicious, moderate, and modest. The book I also read over long since at the first coming out, whilst I lived in Oxon, and was much satisfied with it, for the generality: yet in two things I was not fully satisfied: viz. why, in á Contract of mere Commutative Justice, (I mean where neither necessitas, nor necessitudo personae doth intervene to require otherwise; for in such cases, according to the exigence of due circumstances, I am bound to lend freely) between two that are in regard of any nearer relation but as it were strangers, it should be lawful for the Borrower apparently to look at his ówn gain and advantage in borrowing, and yet be unlawful for the Lender to provide for his own moderate gain and advantage in lending. For I conceive that of those four sorts of Borrowers you afterwards mention, the last is not to be looked upon at all as a man fit to be contracted with; nor ought a wise man to lend such a one either freely or with condition of gain, unless to redeem him from present ruin, and not without some good probability or hope of his reclaiming. The second and third sorts are for the most part to be relieved in their necessity, or served in their just occasions by free loan. But to the first sort I either make question, whether it be fit for us to lend to such a one at all, or else make no question, but we may contract for gain somewhat proportionable if we do lend. Secondly, seeing in all societies and commonwealths there must be some common received standard for the guiding of mutual Contracts, (otherwise there should be no rule whereby to judge of bargains, whether they be easy, hard, or indifferent,) and that the standard in most societies and apparently with us is, as I wrote to you in my last, the rates tolerated by Law for the loan of money; I do not see how the Republic received any damage by Usurious Contracts, though to the utmost of that the Law tolerates. As to my best remembrance, being now many years since I read it, Dr. Fenton in that book endeavoureth to prove, wherein by the way you have discovered what my opinion is concerning the last of the scruples proposed in the latter part of your Letter: whence I conceive 'twill follow in the business of restitution the strictest Usurer that hath not outgone the Statute, if he shall find that the particular Borrowers have not been bitten or endamaged by him, need not be solicitous or scrupulous about restitution to be made, as in regard to any damage to the Public. Now to the satisfying the other three scruples. As to the first, which kind of Borrowers may properly be said to have received damage by an Usurious Contract, so as in justice and conscience they ought to have restitution made? I take it that restitution is not to be made of necessity either to the first or the last of the four sorts of Borrowers by you mentioned, though they should have occasionally sustained loss or damage by the Contract. The reason is because the damage did not flow from the Contract, as the proper cause thereof, but only ensued thereupon by accident; and so ought not to be imputed to the Contract, but to the right cause, which in the one sort of Borrowers is manifestly their own profuseness or improvidence, who probably had been in no better condition had they had twice as much money lent them gratis. And in the other, many times their own greediness, or vanity in coveting to grasp more than their hands are able to contain, or desiring to be accounted great dealers in the world, &c. And sometimes some unexpected casualty which the Borrower could not foresee or prevent, as the decay of trade, falling into the hands of pirates, purchasing where the title afterwards proveth litigious, &c yet in this latter some mitigation or abatement is fit to be made, but is rather to be done in mercy as a voluntary act of Christian compassion, than to come properly within the compass of such restitution as a man is obliged unto in justice. But as for the second middle sorts of Borrowers, forasmuch as the lending to them (where their necessities or just occasions require it, and our present store and occasions may bear it) is an act of such charity and courtesy, that our own hearts could not but condemn us of some unmercifulness or unkindness to our neighbour if we should refuse to lend, there ought to be a very tender regard had of their sufferings; and if it shall appear that we have gained to their loss, that sovereign rule of Equity, Quod tibi fieri non vis &c, will infer the necessity of making some restitution. For the other two scruples the answer will be short and easy, if another rule given by the Casuists be well considered, which in matters of Commutative Justice concerning meum et tuum is of excellent use to free the conscience from being perplexed with unnecessary scruples on the one side, as that maxim formerly mentioned of pars tutior is useful to preserve it from too much liberty and looseness on the other side; and that is this: In rebus dubiis melior est conditio possidentis. Where we are actually and legally possessed of any thing bona fide, of the unjust getting or holding whereof we are not clearly convinced in our consciences, nor have any particular sufficient cause to make us reasonably suspect any injustice therein, but only some general fears or apprehensions that possibly some of that whereby we are so possessed might not be lawfully gotten or held, in such cases, I take it, we are no further obliged to make particular inquiry into the original right by which we stand so possessed, than only to have a readiness of mind, when a just particular cause of doubt or suspicion shall arise thereabouts, to use all requisite moral diligence to examine the same impartially according to the rules of Justice and Equity, and according as upon examination we shall find it to be just or unjust, to do thereafter: so as upon the whole matter it seemeth to me agreeable to Reason and Christian Prudence that a man whose monies have been disposed of by his friends during his minority into several hands and upon |