Part 2

Yet, though these ordinances have been provided in all good faith, by the legislators, it is evident to every person who observes closely, and compares causes and effects, that oftentimes their operation is inefficient for the end aimed at; and often directly the reverse in effect from the original intention of their makers. Especially, it seems to me, is this the case in the matter of those laws relating to Usury.

There exists almost universally, a sort of hereditary prejudice against the very name of Usury. Almost every one will plead guilty to such feelings as these: “Usury is a bad thing, and as such ought to be prevented; Usurers are a bad sort of men, a very bad sort of men, and as such ought to be punished and suppressed.” Now, it is not wonderful that men fall into such opinions, and become firmly grounded in them, when they hear them handed down and repeated by those to whom they are in the habit of looking with confidence for correct ideas.

For it cannot be expected that the mass of mankind should find leisure, even had they the ability, to examine into the grounds of a hundredth part of the rules and maxims which they find themselves compelled to follow and observe. The fact is, that wherever it has been attempted to limit the rate of Interest, or to abolish it altogether by law, there the practice of Usury has uniformly revived. And, as might naturally be expected, the more severe the penalties, and the more rigid their execution, the higher the rate of interest was sure to rise. Because the risk being so much greater, the lender must needs have a larger premium of insurance to tempt him to incur it. It is a matter of history, that at Rome, during the continuance of the republican form of government the rates of interest were enormous. The simple and plain reason of this was, that the debtors who were always plebeians, were continually threatening their patrician creditors.

So also, in those Christian countries where Interest on loans has been forbidden, or what is equivalent, where it has been placed by law at so low a point as would not suffice to pay the risk of loss to a lender, the practice has been made over almost entirely to the Jews; while at the same time so great has been the extortion, oppression, and humiliation to which this people were exposed that nothing short of a very heavy rate of Interest could indemnify them for such risks and repeated losses.

Thus in any case the ratio of the Premium of insurance, which frequently forms the greater portion of what is called Interest, will depend upon the degree of security presented to the lender. The greater the risk, the higher will be the rate of Interest. When we detach from the rate of interest all that is paid as a security to the lender against the risk of partial or total loss of his capital, it remains to consider that part which is purely and simply Interest: that is to say, rent paid for the use of capital.

This is the point upon which many wise legislators have endeavored to lay down laws as infallible guides, and many learned economists have advocated such restrictive enactments, as even to this day obtain in most civilized countries. The Romans seem, according to Cato, to have considered an Usurer, as worse than a thief. For, says he, “Our Ancestors, enacted in their laws, that a thief should be condemned to pay double, but an Usurer, quadruple.”

Even that most learned commentator on law, Sir Henry Blackstone, pronounces that a legal limit ought to be placed to this branch of trade.

I will quote from Blackstone, on this subject. He says, when speaking of the general points in the contract of hiring and borrowing: [2 Com., p. 454,] “There is one species of this price or reward, the most usual of any, but concerning which many good and learned men have in former times very much perplexed themselves, and other people, by raising doubts about its legality in foro conscientie.

“That is, when money is lent on a contract, to receive not only the principal sum again, but also an increase by way of compensation for the use; which is generally called Interest by those who think it lawful, and Usury by those who do not so; for those enemies to Interest, in general, make no distinction between that and Usury, holding any increase of money to be indefensibly usurious. And this they ground, as well on the prohibition of it by the law of Moses among the Jews, as also upon what is said to be laid down by Aristotle, that money is naturally barren, and to make it breed money is preposterous and a perversion of the end of its institution, which was only to serve the purposes of Exchange, and not of increase. Hence the school divines have branded the practice of taking Interest as being contrary to the divine law, both natural and revealed: and the canon law has proscribed the taking any, the least, increase for the loan of money, as a mortal sin.

“But in answer to this it hath been observed, that the Mosaical precept was clearly a political, and not a moral precept. It only prohibited the Jews from taking Usury from their brethren, the Jews: but in express words, permitted them to take it of a stranger; which proves that the taking of moderate Usury, or a reward for the use, for so the word signifies, is not malum in se, (a sin in itself considered,) since it was allowed where any but an Israelite was concerned. And as to the reason given by Aristotle, and deduced from the natural barrenness of money, the same may with equal force be alleged of houses, which never breed houses; and twenty other things, which nobody doubts it is lawful to make profit of, by letting them to hire.

“And though money was originally used only for the purposes of exchange, yet the laws of any State may be well justified in permitting it to be turned to the purposes of profit, if the convenience of society, (the great end for which money was invented,) shall require it. And that the allowance of moderate Interest tends greatly to the benefit of the public, especially in a trading country, will appear from that generally acknowledged principle, that commerce cannot subsist without mutual and extensive credit. Unless money, therefore, can be borrowed, trade cannot be carried on: and if no Premium were allowed for the hire of money, few persons would care to lend it; or, at least, the ease of borrowing at a short warning, (which is the life of commerce,) would be entirely at an end.

“And as to any scruples of conscience, since all other conveniences of life may be either bought or hired, there seems to be no greater oppression in taking a recompense or price for the hire of this, than of any other convenience.”

For the taking of such recompense we have moreover, the very highest authority in the words of our Saviour, who, in the parable of the talents, censures the slothful servant in these words: “Thou wicked and slothful servant, thou knewest that I reap where I sowed not, and gather where I have not strewed. Thou oughtest therefore to have put my money at the exchangers, and then at my coming I should have received mine own with Usury.”

Dr. Adam Smith, in his work entitled “Wealth of Nations,” [Vol. 1, p. 429,] published in 1776, and which has been long a text book for political economists, says: “A capital lent at Interest may, in this manner, be considered as an assignment from the lender to the borrower of a certain considerable portion of the annual produce; upon condition that the borrower in return shall, during the continuance of the loan, annually assign to the lender a smaller portion, called the Interest; and at the end of it a portion equally considerable with that which had originally been assigned to him, called the repayment. Though money, either coin, or paper, serves generally as the deed of assignment, both to the smaller and to the more considerable portion, it is of itself altogether different from what is assigned by it.” And again: “As such capitals are commonly lent out, and paid back in money, they constitute what is called the monied interest.” “In some countries the Interest of money has been prohibited by law. But as something can everywhere be made by the use of money, something ought everywhere to be paid for the use of it. This regulation instead of preventing, has been found from experience, to increase the evil of Usury; the debtor being obliged to pay, not only for the use of the money, but for the risk which his creditor runs by accepting a compensation for that use. He is obliged, if one may say so, to insure his creditor from the penalties of Usury.”

“In countries where Interest is permitted, the law, in order to prevent the extortion of Usury, generally fixes the highest rate which can be taken without incurring a penalty. This rate ought always to be somewhat above the lowest market price, or the price which is commonly paid for the use of money by those who can give the most undoubted security.”

“If this legal rate should be fixed below the lowest market rate, the effects of this fixation must be nearly the same as those of a total prohibition of Interest.”

“The creditor will not lend his money for less than the use of it is worth, and the debtor must pay him for the risk which he runs by accepting the full value of that use. If it is fixed precisely at the lowest market price, it ruins, with honest people, who respect the laws of their country, the credit of all those who cannot give the very best security, and obliges them to have recourse to exorbitant usurers.”

“The legal rate, it is to be observed, though it ought to be somewhat above, ought not to be much above the lowest market rate. If the legal rate of interest in Great Britain, for example, were fixed so high as eight or ten per cent. the greater part of the money which was to be lent, would be lent to prodigals and projectors, who alone would be willing to give this high rate of Interest. Sober people, who will give for the use of money no more than a part of what they are likely to make by the use of it, would not venture into the competition. A great part of the capital of the country, would thus be kept out of the hands most likely to make a profitable and advantageous use of it, and thrown into those most likely to waste and destroy it. Where the legal rate of Interest, on the contrary, is fixed but a very little above the lowest market rate, sober people are universally preferred as borrowers to prodigals and projectors. The person who lends money gets nearly as much Interest from the former, as he dare take from the latter, and his money is much safer in the hands of the one set of people, than in those of the other. A great part of the capital of the country is thus thrown into the hands in which it is most likely to be employed with advantage. “No law can reduce the common rate of Interest below the lowest ordinary market rate at the time when that law is made. Notwithstanding the edict of 1766, by which the French king attempted to reduce the rate of Interest from five to four per cent., money continued to be lent in France at five per cent.: the law being evaded in several different ways.”

Puffendorf, whose treatise on the “Laws of Nature and of Nations,” was published in England in 1710, says: “The arguments which are brought against Usury are easily answered. It is urged that the loan of a consumable commodity ought to be given gratis, because the loan of all other things is so. But I answer that I have the power of granting the use of my goods that are not consumable either gratis, or for rent: whereof, the one is a loan, the other a letting. So what should hinder me from granting the use of my money also, either gratis, or for a certain recompense? When one man borrows to increase his wealth, or improve his condition, why should another lend to him for nothing? Nay, ’tis an unreasonable thing, when you vastly improve your fortune with my money, not to admit me to some share of the gain. For I, in the meantime, am debarred from making that advantage which I might have otherwise expected, by applying it to my own use. Besides, I have parted with something valuable, which ought therefore to be considered: for in lieu of my money, I have only an action against your person, which cannot be prosecuted without some trouble. It may also happen by some accident that the debt may be lost. Nay, sometimes the debtor must be courted and caressed, that it be not lost. And some borrow on purpose to make their creditors dependent on them. As, the Marechal de Rochelause, when he was taxed by Louis XIII. with taking part with the Duke of Mayenne, pleaded in excuse, that he did not follow the Duke, but his money: for his debt would be in a desperate condition if he did not stick close to his debtor.

“Besides, it is not seldom that we lend to persons who are utterly unable to pay; and therefore some are of the opinion that it would be for the advantage of the public, to allow none but merchants to take up money at use; for this would make the poor industrious, and force them to frugality, who, some of them, are not afraid to pay Interest for money to maintain their extravagancies. And monied men, rather than let their money lie dead, would either take to merchandise themselves or would put out their money to those who do: which would make trade flourish to the great benefit of the commonwealth.

Grotius is of the opinion, “that the legal interest ought to be stated, not according to the gains of the borrower, but the loss that thereby accrues to the lender: as in buying and selling, and other contracts, no regard is had to what the receiver may make of the commodity, but what goes away from the seller.”

“And in this case so much goes away as every man in his own calling might, and usually does, make of his money; allowance being made for hazards, which in some cases are more, and in others less. With this, I so far agree: that no man can complain, if his debtor makes a vast and unexpected return of his money; but yet there is no doubt but I may demand higher Interest of him that makes a very gainful trade, than I can of another who drives a poor one.”

These are the opinions of men learned in the science of political economy; and are entitled to weighty consideration; but it seems to me, they do not, any of them, reach quite far enough into the subject. All of them appeared to be fettered by the pressure of that same generally recognized opinion to which I have before adverted.

The proposition I am inclined to favor on this much mooted point is aptly expressed in the words of Jeremy Bentham. It is, “that no man of ripe years, and of sound mind, acting freely, and with his eyes open, ought to be hindered, with a view to his advantage, from making such a bargain in the way of obtaining money, as he thinks fit, nor, (what is a necessary consequence,) anybody hindered from supplying him, upon any terms he thinks proper to accede to.”

There are but two definitions which can be given to Usury. One is, taking a larger rate of Interest than the law allows; this is the legal or, political definition. The other is taking more Interest than is usual for other people to give and take; this is the moral one. And now, in order that the law may touch the point, and actually prohibit Usury, it is needful first that the law should supercede morals, or conventional custom, and fix that point.

One thing is certain, that antecedently to custom, which has grown to be established conventionally, there could not be such a thing as Usury. For what rate of interest is more right than another? In one land ten per cent. is the legal and therefore (as the advocates of limitation would say) the proper rate; in an another five per cent. is the utmost which the tender consciences of the legislators will allow. Even in the same country, from time to time, the rates are and have been varied as the wants of the community, the exigencies of the times, or the whims of the legislators prompted.

It is, then, convenience which has produced whatever there is of custom in the matter. “And what, (asks Bentham appropriately,) is there in custom, to make it so much more deserving of observance than convenience, which first gave it birth?”

It is convenient for me to give 8 per cent. for money. “No,” says the law, “you shall not.” Why? “Because it is not convenient for your neighbor to give more than 6 per cent. for it.” Can anything be more absurd?