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A00671 A treatise of vsurie diuided into three bookes: the first defineth what is vsurie. The second determineth that to be vnlawfull. The third remoueth such motiues as perswade men in this age that it may be lawfull. By Robert Fenton Bachelar of Diuinitie. Fenton, Roger, 1565-1616. 1611 (1611) STC 10806; ESTC S101958 118,517 170

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hundred pound when the lease shall expire This is vsury vnder the colour of letting 4 Sometime it passeth vnder the colour of free loane or mutuation A poore man desireth a Goldsmith to lend him such a summe but he is not able to pay him Interest If such as I can spare saith the Goldsmith will pleasure you you shall haue it for three or foure moneths Now hee hath a number of light clipt crackt peeces for such hee vseth to take in change with consideration for their defects this summe of money is repaid by the poore man at the time appointed in good and lawfull money This is vsurie that is gaine for loane vnder colour of free loane Or thus A yong Gallant would borrow an hundred pound for a yeere the Vsurer in kindnesse will lend him so much freelie for three moneths The Gentleman glad to finger the money accepteth his kinde offer The Vsurer takes sure bonds knowing that he who is so hungrie for a yeere will not be in case to pay at three moneths then shall the forfeiture of the bond pay the Interest of the money with aduantage only forsooth because the Creditour is exceedingly damnified in being disappointed at the time This were vsurie if the craftie purpose of the Vsurer were discouered Or thus One lendeth tenne pound vpon a pawne of bedding or linnen and hee lendeth it freely but as the other vseth his money so hee likewise vseth his pawne This is vsurie for the bedding or linnen is sensibly worse for the wearing so is not the money 5 Sometime vnder the colour of Merchants exchange deliuering money vpon bils at home to be paid in other countries A practise which some would vtterly condemne but considering the great vse of it I would not rashly condemne it but will imagine rather how it may haue his grounds in equitie and iustice 1 Either because the office of transportation is therein implied For hee who deliuereth money here to be repaid beyond the Sea performeth the same office and doth the borrower no lesse benefit then if he conueyed his money for him out of another countrey home and somwhat more because this is done instantly that could not be done but in longer time 2 Or else because money present is more worth then absent not in any vsurious respect but in a lawfull estimate for there is no present vse of that which is absent And besides that which is in another countrey cannot be made present without some cost labour or perill 3 Or in respect of the value of money in the place where it is paid vpon bill for though the value of coynes remaine one and the same yet summes of money may rise and fall in exchange woe be to thē who conspire to raise them yet scarsitie of money at some times may make great summes more pretious and harder to come by and then euery man drawing as much as he can home it maketh the transportation from forraine places to be of greater difficultie This Reall Exchange though it may stand iustifiable vpon his owne grounds yet vnder it is cloaked a mysterie of iniquitie that is of vsurie either by that vsance and double vsance vsed only to an vsurious intent or specially by that counterfeit Exchange termed by the name of Cambium siccum or drie Exchange because it hath no more iuyce or sap then a painted tree either in charitie or equitie but being a griping vsurie vnder the title of Exchange it drieth vp the fountaine of both 6 Sometime it masketh vnder the habit of hazard and aduenture For because in that which is mutuum hee that lendeth passeth away together with the propertie all hazard and aduenture of the principall A man therefore to preuent this will deliuer thirtie pound the sixt of December to receiue 33. pound for it the second of Iune next following if the sonne of the said lender be then aliue If hee die before the day that then the debtor should pay but 27. pound of the principall This was Claytons case adiudged to be vsurie For that this hazard or vncertaintie of life is not to be accounted of because by the same reason that he may adde one life hee may adde many If it be not sensible and proportionable it is but a mockerie But put the case of a mans owne life and make the aduenture more sensible and proportionable As thus A man hauing no charge to leaue behinde him or little care of them vseth to lend out his money for ten in the hundred if he shall liue vntill the daies of paiment prouided alwaies that if he the said Creditor die then his executors shall receiue but foure score pound for the hundred pound His case then standeth thus First he hopeth to liue many yeers and when he dieth he is sure to die but once then shall his executors who those shall be God knowes and not he his executors I say shall pay twentie in the hundred of such summes only as then shall be abroad at vse Vnder colour of this aduenture which selfeloue in many maketh no aduenture hee would lend his money and liue vpon the loane while he liueth But tell me in good sooth wilt thou take ten in the hundred if thou liue then by this couenant thou wilt be an Vsurer if thou liue No condition shall barre thee from it but only death Then verely of necessitie thou must die an Vsurer by vertue of the same couenant And tell me in thy conscience doest thou thinke thy Executors after thy death can redeeme thy soule from that sinne wherein thou diedst by paying so much in the hundred of thy wealth which then shall be none of thine Filij huius seculi how wittie and subtill are the children of this world in twisting snares to intangle their owne consciences at the houre of death Qui volunt esse diuites They that will be rich saith the Apostle not they that would by lawfull and direct meanes but they that will be rich fall into temptations and snares such snares as the more they struggle to get foorth the faster doe they intangle themselues CHAP. V. Of the second terme of the definition Pactum Couenant ALbeit an ouerplus or increase bee giuen and receiued for the meere loane either of money or of any thing which passeth by Number Weight or Measure yet it is no vsurie except it be by some couenant or contract before This also is essentiall and expressed in the very letter of the law of God Thou shalt not impose vsurie c. So doe Vatablus Pagnin and Tremellius reade it Non impones So likewise the Greek Interpreters 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Now there can be no exaction or imposition vpon a free person but by way of couenant A couenant is a mutuall agreement vpon a certaintie First it must be an agreement that is a voluntary consent presupposing both libertie of will to giue assent and abilitie of vnderstanding to know the thing agreed vpon
Secondly it must be mutuall For though one partie agree vnto it yet it is no couenant vnlesse both giue consent mutually Thirdly that mutuall agreement must be reduced vnto a certaintie else it is void If both parties doe not vnderstand one certaine thing it is no couenant and therefore we see that a conditionall couenant because it dependeth vpon some future vncertaintie is no couenant at all but vpon this condition that that vncertaine thing doe proue certaine If a mans money freely lent for a time be by force retained past that time to the sensible detriment of the lender we haue before concluded that a recompence is due But in case a couenant bee made of free loane for such a time and if it be not repaied at such a time then so much to be allowed for Interest this couenant maketh vsurie which before was none A man lendeth his neighbour a summe of money to trade withall and that freely This borrower becommeth a gainer out of his thankfull minde he doth gratifie the lender with some part of his gaine This is no vsurie but a thankfull gratuitie termed by the name of foenus liberale and it is lawfull to giue and take where it is not lawfull to couenant or contract before For as to gratifie a Patrone for preferment a Iudge for iustice vpon any precedent stipulation promise or demaund is Simonie in the Church Briberie in the Common-wealth so is it vsurie in any fashion to contract before the time of the loane The reason of all this is because neither iustice which God and nature haue made free for all nor sacred things sanctified and set apart for the seruice of God nor workes of mercie bountie or fauour as giuing and lending are in their owne natures any waies capable of bargaine and sale Couenant therefore is that which poysoneth the nature of them and turneth them into sinne the sinne of Simonie Briberie Vsurie let them goe together But that men deceiue not themselues in mistaking this terme of Couenant vnderstand briefly the latitude of it It is either reall by pawne laid in both for principall and Interest Or literall by writing without pawne as by bill booke or bond Or personall without writing in taking another man for suretie befides the borrower Or verball either by promise without suretie before witnesse or by secret stipulation betweene themselues without witnesse Or silent without word witnesse writing or pawne and this silence either of one partie or both Of one thus An Vsurer saith I will lend you thus much money but so much Interest you shall pay me The borrower takes it in filence this silence is a promise and that promise a couenant Nay where there is silence on both sides there may be an vsurious couenant A common borrower commeth to a common Vsurer to take vp an hundred pound for three moneths there is neither bill bond promise nor demaund for any Interest only this the borrower knoweth how that Vsurer neuer lendeth his money but for tenne in the hundred Likewise the Vsurer knoweth how that borrower neuer taketh vp but vpon Interest The very act of borrowing and lending in these two parties by common intendment is a couenant for Vsurie and euery couenant whatsoeuer whether it be silent or expresse whether it be bare and naked in promise or inuested by further securitie if it be a couenant for loane it is Vsurie CHAP. VI. Of the third terme Lucrum gaine ALbeit there be a couenant meerely for loane yet if there be no lucre it is no vsurie I vse the word Lucre rather then Gaine because it is more proper for this purpose in the English Godlinesse is great gaine but godlinesse is no lucre Lucre is cleere gaine in money or money worth That which is couenanted or agreed vpon for meere loane must also be cleere gaine For where equalitie is there can bee no vsurie Cleere gaine either in money which is a certaine price or else in money worth which is valuable and to be rated at a certaine price for as S. Ambrose saith Et esca vsura est vest is vsura est quodcunque sorti accedit vsura est quod velis ei nomen imponas vsura est Be it meate or apparell or any ouerplus aboue the principall what euer you call it it is Vsurie A man lendeth money to his neighbour freelie in his need for though hee be a rich neighbour yet vpon occasion he may want a summe of money for lawfull and necessarie imployments promise passeth to requite his kindnes another time in lending him as much againe for his occasion Here is a couenant for loane yet no vsurie because no couenant for cleere gaine but one good turne for another And where there is equalitie there is no vsurie Christ alloweth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in this kinde A man oweth me ten pound I wot not how to come by it He commeth to me for tenne pound more I condition with him that he shall put in good securitie for the whole debt of twentie pound which if hee doe willingly yeeld this is to me as the case now stands a profitable couenant for the loane of money yet it is no vsurie because no cleere gaine but only a recouerie of mine owne due debt with out wrong offered to any A man lendeth money to get the friendship of such a person as may stand him in stead A friend in Court is worth a penny in the purse But because his friendship cannot be valued or set at a certaine price therefore it is no lucre and consequently no vsurie A shopkeeper lendeth money freely to a Chapman couenanting with him that hee will not bauke his shop but that he may take his money before another This is gaine to the shopkeeper but it is not valuable at any certaintie so long as hee may be serued in that place for his money as well as elsewhere But in case he make him pay dearer for his ware because he lent him money that is vsurie I lend a poore labouring man money freely but conditioning that he shall worke so many daies with me in haruest freely this is vsurie for a daies worke is valuable at a certaine price therefore is it lucre and money worth There is an Office or Lease fallen void of such a yeerely value I lend my Courtly friend a summe of money for such a time freely without vsurie onely couenanting that he will procure the said Lease or Office This is vsurie for though his friendship at large was not valuable as is aforesaid yet now being reduced vnto a certaintie in this particular it may be valued at a price Therefore is it lucre and so consequently direct vsurie CHAP. VII Abriefe recapitulation of that which hath been said BY that which briefly hath been deliuered it may in some sort appeare how vsurie hath been called and what it is The Gentiles both Romanes and Grecians led by the light of nature termed it the