THE ECCLESIASTICAL TREATMENT OF USURY.

IN

N considering the history of usury, it is necessary to bear in mind that the word in its ecclesiastical sense does not mean exorbitant usance for the forbearance of money, but any charge or profit whatsoever arising from the loan of money or other article of value, however moderate may be such charge or profit.

There is ample scriptural warrant for the prohibition of all such gains. The Hebrew lawgivers strictly commanded that all loans should be made without the exaction of increase. In the New Law there is less insistance on this, evidently because it was accepted as a matter of course in the precepts which inculcated the brotherhood of mankind and the principles of universal kindliness. Naturally the early Fathers condemned it with a unanimity which renders special reference superfluous, while it is significant as showing how ineradicable was the practice, and how fruitless the efforts of repression. The earliest codes of discipline tell the same story. The so-called Apostolic Canons decree deposition for bishop, priest or deacon who will not abandon it. The council of Elvira permits a single warning to a layman, when, if he repeats the offence, he is to be expelled from the Church. The council of Nicæa deplores the fact that many clerics lend money at one per cent. a month, and corn to be returned with fifty per cent. increase, wherefore all who seek such gains are to be deposed from their grades.* Of course the usurer was deemed ineligible to ordination, but Basil the Great tells us that if he will abandon his avarice, and give all his gains to the poor, he may be admitted to the priesthood. Successive popes and councils of the follow

1 Exod. XXII, 25.-Levit. xxv, 35-7.-Deut. XXIII, 19-20.-Ps. XIV, 5.-Prov. XXVIII, 8.-II. Esdras v, 11.-Matt. v, 42.-Luke VI, 35.

Canon. Apostolor. xliij.

Concil. Eliberitan. ann. 313, c. xx.

Concil. Nicæn. I, ann. 325, c. xvij. Cf. C. Laodicens. c. ann. 350 c. iv; C. Carthag. III, ann. 397 c. xvj.

'S. Basil. Epist. Canon. I. can. xiv.

ing centuries repeat these and similar injunctions with an iteration which shows how steadfastly the Church carried on the endless and fruitless struggle. Their utterances were embodied in the collections of disciplinary canons and in the penitentials, and furnished ample material to guide the priest in dealing with his penitents.'

When in the twelfth century canon law began to take a definite shape, Gratian collected a store of extracts from the Fathers and councils to show how impious is usury, that the profits of usurers are not to be accepted as alms, and that usurers are not to be received to penance without making restitution of their gains. Alexander III was unremitting in his efforts to suppress the evil, and in 1179, under his impulsion, the third council of Lateran deplored that it was increasing everywhere, and that men devoted themselves to it exclusively, as though it were lawful; wherefore all such offenders are to be deprived of communion and of Christian burial, and their money is not to be accepted in oblations, while priests not enforcing these rules are to be suspended until they repay what they may have received, and render satisfaction at the discretion of the bishop.' As this council

1 Reginon. de Discipl. Eccles. Lib. I, c. 221-5; Lib. II. c. 435.-Burchardi Decret. Lib. II, c. 119-27.-Ivon. Decret. P. VI, c. 65-6. The penance for usury was of three years' duration, the first of which comprised fasting on bread and water.-Pœnitentiale Pseudo-Bedæ c. xxxix, § 2. Poenit. Pseudo-Roman.

c. vij, § 3.

2 Gratian. Decret. Caus. XIV, Q. 3-6.

8 Concil. Lateran. III, ann. 1179, c. xxv.

However ineffective may have been the efforts to suppress usury, the prohibition of sepulture was at least sometimes enforced. A case referred to the Papal Penitentiary in the first half of the thirteenth century shows that the Archbishop of Genoa forbade burial to the corpse of a usurer. The Benedictines of the Abbey of St. Syrus, however, secretly interred it, and then, becoming frightened, removed it from their cemetery. Disregarding the suspension thus incurred under the Lateran canon, they continued to perform divine service until the abbot applied to the Penitentiary for relief, and was told in reply that, if the matter was public, it should be referred to the archbishop to inflict the punishment due to the offence. If it was secret, the Dominican prior of Genoa was ordered to prescribe for them a salutary penance, and, when they should restore to the victims of the usurer whatever money they might have received for the burial, the suspension could be removed. In another case, the Abbot of St. Alban's applied for permission to bury the body of a usurer who on his death

was œcumenic, its utterances were accepted as the direct inspiration of the Holy Ghost, but they accomplished little. Towards the close of the century Bernard of Pavia, in his commentary on Gratian, affords us a view of the current legal state of the questions involved. Usury was purely an ecclesiastical offence; the secular laws had no provisions prohibiting usurious contracts; if the borrower had sworn, as was customary, to pay interest, he must do so, and then bring suit to recover in a spiritual court, for the lay courts had no jurisdiction.' If the borrower chose freely to give something over and above the principal, it could be accepted without sin; if no interest was specified in the contract, and yet the lender exacted or extorted something, this was not usury legally, but it was spiritually a sin for which he must answer in the confessional and be subjected to penance— which of course would imply restitution as a condition precedent. Superabundantia—a term borrowed from St. Jerome -was usury; it meant obtaining some profit in addition to the principal, as when a field was hypothecated as security, and the lender enjoyed its fruits during the existence of the loan; all such fruits were to be computed as partial payments, though already there had commenced exceptions in favor of the Church, for, if a layman held a piece of Church property, clerics lending money on it could enjoy the fruits, which Bernard says seems strange, but that it is not for gain, but to enable them to redeem the property from the layman.' Usury could lawfully be exacted from an enemy, one whom you might slay, like a Saracen, nor was it usurious to obtain hire for a horse or rent for a house. A penalty for default in payment at the appointed time was not usury if it was

bed promised to make restitution. His widow and heirs have now engaged to do so, and the Penitentiary permits the rites to be performed, provided he had given security before he died, and the survivors have fulfilled their promises.Formulary of the Papal Penitentiary, Philadelphia, 1892, pp. 172, 174.

1 Cum hoc crimen sit ecclesiasticum semper est in hujusmodi ad ecclesiasticum judicem recurrendum.- Bernardi Papiensis Summæ, Lib. v. Tit. xv. §

13, 14.

* Ibid. 2, 8.

3 Bernard. loc. cit. $ 3, 5, 12.

Ibid., 4, 5.

appraised by a judge, or if it was a definite sum named in the contract to enforce the obligation, but it was usury if otherwise exacted; such contracts, he tells us, were customarily required at Bologna of students from beyond the Alps, and bore the penalty of an ounce in every mark (ten per cent.) if settlements were not made at the customary periods of fairtime or the vintage. Usurers were to be deprived of communion while living, and of Christian sepulture when dead, nor was their money to be accepted in oblations, though some greedy priests were accustomed to say that the coin had committed no sin; clerics were to be suspended and, if persistent, to be deposed. Restitution of usurious gains could be enforced, even from the heirs of the usurer. Already the device was known and prohibited of accompanying a loan with the sale of some object at a price above its value. Selling on credit at a higher rate than for cash was usury; whether this was the case in buying for future delivery at less than the market rate-as in purchasing and paying for grain in advance of the harvest-depended on whether the price paid was too low.' We can see from all this what fatal restrictions were laid on trade and credit, and what abundant material the subject afforded for nice distinctions and obscure cases of conscience.

When, at the command of Gregory IX, S. Ramon de Peñafort in 1234 codified the new canon law in the official compilation known as the Decretals of Gregory IX, the collection of decrees on the subject of usury which he embodied shows how earnestly the popes had been endeavoring to suppress it, and how ineradicable it proved. Clerics and

'Ibid. § 9. A later authority, of the date of 1338, declares that it is not decent to exact the penalty and not lawful when the debtor, without fault of his own, is unable to make payment at the designated term.-Summa Pisanella s. v. Usura I, § xxij.

2 Bernard. Papiens. Lib. V, Tit. xv. §§ 10, 11.

3 Ibid. § 7. The Summa of Master Roland (afterwards Alexander III.) is much less in detail, but in the same spirit (Caus. XIV, Q. 4,5). Stephen of Tournay (Summa Caus. XIV, Q. 4, 5) copies Roland. The form of contract known as Mohatra, in which the lender sold some article at a high price and immediately repurchased it at a lower continued to be in vogue until the eighteenth century in spite of perpetual condemnation by the Church.

laymen were alike engaged in it, monasteries and pious organizations had to be reproved and forbidden to seek its unhallowed gains, and the various ingenious subterfuges of what came to be known in the schools as indirect or covert usury were largely practiced in the endeavor to escape the unreasoning prohibition. Even the secular power was required to lend its aid in enforcing restitution. At the same time an exception as to enjoying the fruits of hypothecated lands was made in favor of a husband, who took them as security for a deferred dowry, in view of the expense of maintaining his wife. Gregory IX, moreover, gave a further illustration of the impossibility of determining the questions involved on logical principles when he forbade the lender to charge for the risk of a loan made to a merchant about to start on a journey or a voyage, while he admitted that selling higher on credit or buying lower for future delivery, might be justified by uncertainty as to the value of the goods at the time of settlement.' With the constantly increasing strictness of practice the first portion of this decree was enforced, while the second was subsequently argued away.

So the interminable contest with human nature was carried on, the Church constantly endeavoring to redeem its failure by ever exaggerated severity. Under Gregory X. the œcumenic council of Lyons in 1273, in order, as it declares, to repress the whirlpool of usury which devours souls and exhausts property, ordered the Lateran canon to be inviolably observed, and added to it that no college or community or person should permit strangers publicly engaged in usury to rent or occupy houses, but should expel them from their lands and never allow them entrance. Obedience to this was to be enforced on laymen and clerics with excommun. ication by their bishops, on prelates with suspension, on colleges and communities with interdict. Even if dying usurers should order restitution, Christian sepulture was to be withheld until the restitution was made to those to whom it was due, or if the latter were absent, until security was

1 C. 16, 18, 19. Extra Lib. V. Tit. xix; C. 4 Extra Lib. III. Tit. xxj.