can retain it. If he were to restore it to the borrower, the latter would be guilty of usury in making profits from the labor of another.'

This was a mere exercise of dialectic ingenuity, and had no influence in practice. The confessor was instructed that the test of usury was intention. If the object in making the loan was gain, even though no conditions were imposed, anything that the borrower might spontaneously give was usurious, whether money or money's worth, in things or service; the most that was conceded was that if the chief motive in making the loan was kindness, belief that some benefit might follow did not render it sinful, and a man might assist a neighbor, believing that the latter might in turn be naturally prompted to do him the same favor. If one lent an article for consumption, and received in return by agreement, tacit or expressed, something else of greater value, whether money or otherwise, the transaction was usurious, and he was bound to make restitution.' Tacit compacts were rigidly construed to mean any word or sign by which the borrower was given to understand that something was expected. If there was such an understanding that the borrower would return the favor, it was usurious. The theory of superabundantia required that if a pledge were a house, or a coat, or a bed, an agreement that the lender could use it while in his possession, was usurious, and of course a house could not be occupied. The principle that no countervailing service was to be rendered required that there should be no condition, even by implication, that the borrower should have his corn ground at the lender's mill, or bread baked in his oven, or make purchases at his shop, or attend his school; if just prices were received for these things, the lender's profits must be given to the poor; if undue charges were made, he was bound in addition to make restitution of the excess. The admission by Gregory IX that selling on credit at a higher price, or buying for future

1 Jo. Scotus in IV. Sententt. Dist. XV. Q. ii. de Quarto.

2 Summa Pisanella s. v. Usura I, § 1.

3 Ibid, § 2.

4 Summa Pacifica, cap. 10.

delivery at a lower, might perhaps not be usurious had become obsolete, and both were strictly prohibited. Intricate questions arose as to a wife's dower derived from an usurious father, but the received conclusion was that after his death it must be restored to his victims, as otherwise both husband and wife would live in a state of damnation, though there were some laxists who argued that if at the time of the receipt of the dower the father was rich enough to make restitution himself, they could retain it even though he had become impoverished at death.' It was a disputed question whether, in making a loan to a merchant about to sail, the lender could insure the goods at the current rate of premium,' but it was generally admitted that the testament of a usurer was invalid, unless before death he had made provision for the restitution of his unlawful gains.'

Details such as these might be multiplied almost indefinitely, for the ingenuity which devised means of evasion was inexhaustible, and, with the growth of commerce, the questions which arose out of the dealings in exchange were in themselves intricate and numerous enough to tax to the utmost the keenness of the canonists. The space devoted to the subject in the manuals compiled towards the end of the fifteenth century, such as the Summa Angelica of Angelo da Chivasso, and the Summa Rosella of Baptista Tornamala, show how important and arduous a portion of the duties of the confessional consisted in the adjudication of matters connected with usury, direct or indirect, for these. were not mere closet speculations of the theologian, but practical instructions for the priest in his dealings with his penitents. How strictly the canons were construed in practice, may be gathered from some cases submitted to the Papal Penitentiary in the thirteenth century. The abbot of S. Michel au peril de la Mer had lent to a crusader, named Foulques Paganel, a sum of money under a contract by which the borrower agreed to indemnify the abbey for losses and expenses. The abbot pleads ignorance of the illegality of this

1 Bart. de Chaimis Interrogatorium, Venet. 1486, fol. 35a, 37b. 2 Summa Pisanella s. v. Usura I, § xxiv.

Ibid. s. v. Confessor II, in corp.

transaction as an extenuation of his continuing to perform his functions, in spite of the ipso facto excommunication incurred, and he is ordered to be absolved with salutary penance and temporary suspension. So the abbot of S. Josaphat of Chartres confesses that he had lent money to some nobles on their promising to protect the abbey, and, in ignorance of the censure incurred, had continued to act as abbot; in his case the decision was the same as in the previous one.'

It is scarce necessary to point out how deplorable was the influence exercised by all this on the development of commerce and peaceful industry, and it largely explains the success of those communities, like Florence, Venice and Genoa, in which the necessities of trade established a custom overruling the prescriptions of the Church. Freed from these shackles, they easily outstripped competitors less independent of ecclesiastical guidance. Moreover, the greatest sufferers were of course those whom the precepts were designed to favor. When throughout Christendom usury was heresy and its gains were robbery, to be rigidly restored under penalty of eternal perdition, the only lenders were those whose greed overcame all scruple, or Jews who were not subject to ecclesiastical law. Under such conditions, there could be little competition of capital, and the risk and odium had to be paid for in exaggerated profits. There could be no credit when credit could not be charged for. Under such a system, productive industries and the interchange of commodities were hampered in every way, and while borrowers and lenders both suffered, the borrower as the weaker party suffered the most. It is thus easy to understand the scarcity of money in the middle ages and the fearful rates of interest current.

In France an ordinance of Philip Augustus in 1206, regulating the usury of the Jews, forbids a charge of more than two deniers per livre per week, thus authorizing interest at the rate of 43 per cent. per annum. In England the Caourcins, Italian merchants protected by the Holy See, and popularly believed to share with it their gains, claimed even

1 Formulary of the Papal Penitentiary, pp. 102, 103. ? Isambert, Anciennes Loix Françaises, I. 200.

larger profits. In 1235 Matthew Paris gives the form of bond used by them in lending money to abbeys, under which, if the debt was not paid at maturity, it carried interest at the rate of ten per cent. per month, besides all expenses of collection, including a per diem for a merchant with a horse and servant. In 1253 Bishop Robert Grosseteste states that a bond for a year would be drawn in pounds, when only marcs (half-pounds) were advanced.' In Spain the Jews were more numerous and wealthy, and their business was protected by the law, so that the rates were lower. In Aragon they were permitted to charge twenty per cent. per annum, in Castile, 33%. Yet sometimes even this was exceeded, for we read that in 1326 the Aljama, or Jewish community of Cuenca, declared the legal rate of 33% per cent. too low, and refused to lend either money or corn, causing great distress till the town-council persuaded them to accept forty per cent.' In Italy the bankers of Florence had no hesitation in exacting forty per cent. between interest and penalties.*

With all its rigidity, the Holy See could wink at infractions of the canons, when its own interests were involved. The income of the curia was largely derived from the sums levied upon those who came to Rome for favors-to procure benefices or the confirmation of elections to abbacies or bishoprics, or favorable judgments in litigation. The prices charged for these, together with the enormous attendant expenses, were commonly far beyond the ability of the applicants to settle on the spot; they were compelled to borrow largely of the Roman bankers, and there was a popular belief that in many cases the ostensible bankers were in reality only the secret agents of the popes.' It is self

1 Matt. Paris Hist. Angl. ann. 1235, 1253.

Marca Hispanica, pp. 1415, 1426, 1431.-Constitutions de Cathalunya superfluas, Lib. I, Tit. v. c. 2: (Barcelona, 1589, p. 7).-Villanueva, Viage Literario, XXII. 301.-El Fuero Real Lib. IV. Tit. ii, ley 6.

Amador de los Rios, Judíos de España, II, 139.

4 Villari, I primi due Secoli della Storia di Firenze, 1, 288.

5 De Recuperatione Terræ Sanctæ c.xvii, (Bongars Gesta Dei per Francos, II, 325). For the enormous sums which applicants for papal favors had to borrow in Rome, see Faucon et Thomas, Registres de Boniface VIII, n. 2451, 2506-7,

evident that these loans to strangers were not made out of pure Christian charity, and the popes, who enforced on distant abbots the minute provisions respecting indirect usury, and the refusal of sepulture to usurers, were ever ready with their censures to compel the payment of principal and interest to the bankers, on whose business the gains of the curia so largely depended. The chancellor of the Archbishop of Canterbury, when attending the council of Lateran in 1179, thus was obliged to contract debts with Bolognese money lenders. On his return home there was delay in payment, so Lucius III wrote to the archbishop to employ censures to enforce a settlement of the debt and its accretions-the accretions being evidently interest, probably disguised in the form of penalties and the embodiment of this letter in the canon law shows that it was to serve as a precedent in a settled policy. In the course of time all reserve was thrown off. In the fifteenth century the agents of the Teutonic Order in Rome report that the interest charged by the Roman bankers ranged from ten to sixteen per cent.'

As the Church gradually acquired a disproportionate share of the wealth of Europe, not only in lands but in money, it became much oftener a lender than a borrower and it had little difficulty in evading the prohibition of usury in the profitable employment of its spare capital. It would make loans to a needy noble on the security of his lands, taking a so-called census or ground-rent of one mark for every ten or twelve or fourteen paid down, the borrower being at any time entitled to pay off the debt, while the lender renounced the right to call it in. These arrangements were especially common in Germany, whence they acquired the name of contractus Germanici. They were plainly usurious according to all the definitions of usury, but when, about 1425, some

2520, 2533, 2598-99, 2802, 2805-6, etc. In 1430 the agent of the Teutonic Order in Rome reports that, in a suit between the Order and the clergy of Riga, the latter had spent 14,000 ducats, and that it would still cost the Order 6,000 ducats more to bring it to a conclusion.-Johannes Voight (v. Raumer's Historisches Taschenbuch, 1833, p. 150).

'C. 3 Extra Lib. III. Tit. xxii.-Cf. Innocent PP. III, Regest. VII, 215. Johannes Voight (v. Raumer's Historisches Taschenbuch, 1833, p. 168.)