However, the long persistence of the prohibition of the canon law in relation to interest, even with the refuge afforded by the introduction of the rent-purchase system, and of dormant partnerships (Commanditen) etc., so common in the sixteenth century,[191-11] would be unintelligible, if, contemporaneously, the Jews did not carry on an important and somewhat free trade in capital,[191-12] precisely as the Armenians, Hindoos and Jews do in the Mohammedan world of to-day.
[191-1] The apostolic canons and several decrees of councils of the fourth century prohibit the taking of interest by the clergy. A Spanish provincial council dared, in 313, to extend the prohibition to the laity. Pope Leo I. condemned the taking of interest by the laity also, but only in the form of a moral law. (443.) The synod of Constantinople (814) punished the violation of the prohibition with excommunication. See Thomas Aquin. (ob. 1274.) De Usuris, in the Quæstiones disputatae et quod libetales. The canon law, however, always permitted delay-interest (Verzugszinsen), and Gregory IX, allowed justa et moderata expensa et congruam satisfactionem damnorum to be taken into account, (c. 17, X.) De Fora Comp. II, 2. A tacit recognition of the productiveness of capital is to be found in c. 7, X. De Donatt. inter. Virum. cett. IV, 20; and the later schoolmen, Antonin and Bernhardin, (ob. 1459 and 144) are pretty clear on the point. But Albertus Magnus had already recognized the damnum emergens and Thomas Aquinas the lucrum cessans as causes of interest. (Tübinger Zeitschr., 1869, 151, 159, 161.) The essentially modern character of Roman law, which, in the form it has finally assumed, is in harmony with a high development of national economy, accounts for the fact that the glosse of Accursius relying on Irnerius and Bulgarus entirely ignores the prohibition of interest. For a similar reason, in the 16th century, Donellus and Cujacius stand entirely on Roman ground. In the interval, indeed, men like Bartolus and Baldus were not disquieted by the canon law. (Endemann, Studien in der Römisch-Canonischen Wirtchaftsund Rechtslehre, I, 18, 27 seq. 61.) Compare the rich historical material in Salmasius, De Usuris, 1638; De Modo Usurarum, 1639, and De Mutuo, 1640.
[191-2] A. Thierry, Lettres sur l'Histoire de France, éd. 2., 248 ff.
[191-3] Thus the emperor Basil, in the year 867, as Justinian had before him, forbade the further payment of interest, once the amount already paid equaled the principal. (L. 29 seq.; Cod. IV, 32, Nov., 121, 2.) Compare Sachsenspiegel, I, 54. Edward the Confessor is said to have issued the first prohibition of interest. (Anderson, Origin of Commerce, a. 1045.) Edward III. forbade all interest as the ruin of commerce. (Idem a., 1341.) About 1391, the lower House had its zeal aroused against the "shameful vice of usury;" and again, in 1488, all interest on money and all rent-purchases stipulated for on unlawful conditions, were threatened with a fine of £20, the pillory, and six months imprisonment. (Anderson, a., 1488.) In France, the edict of Philip IV. of 1312. Compare Beaumanoir, Coûtumes, ch. 67, des Usures, No. 2.
[191-4] Dante, Inferno, XI, 106 ff., suggests that interest-creditors had violated the command of Moses, I, 3. Macchiavelli seems to judge otherwise: Compare Istoria Fior., VII, a, 1464; VIII, a, 1478. Very interesting discussions on the legitimateness of the taking of interest in 1353 seq., in which the Dominicans, up to the time of Savonarola, defended the strictest opinion. (M. Villan, III, 106.) Luther, Tract on Trade and Money, 1524, and Sermon on Usury, 1519. Later still, Luther became more moderate. Thus, in his letter to the Danzig counsel, 1525, in Neumann, Geschichte des Wuchers in Deutschland, 617 ff., in which, for instance, he blames the forcible carrying out of interest-prohibitions, draws a distinction between rich and poor, etc. So, too, in his letter: An die Pfarrherren, wider den Wucher zu predigen, 1540. Melanchthon, Phil. moral., 137 ff., is also more moderate. Calvin was clearer in this matter, and no longer recognized the canonical prohibition of interest. (Epistolæ et Responsa, Hanov., 1597, epist. 383.) Similarly Zwinglius, who will not praise interest, but considers it a natural consequence of property (Opp. ed. Tugur., 1530, I, 319 ff.), and even Erasmus, ad. Evang. Luc., 6, 44. Adagia v. Usuræ nautt. In Shakespeare, compare Merchant of Venice. Bodinus also rejects on principle, even Roman interest, which he held to be 1½ per cent. a year: De Republ., 1584, V. 2. Even the practical Dutch excluded the so-called "table-keepers," from the communion up to 1657. Compare the contests hereon in Laspeyres, Gesch. d. volkswirthsch. Ansich. d. Niederl., 258 ff.
[191-5] The mutual right of cancellation (Kündbarkeit) in the case of these contracts during periods poor in capital and credit, would easily have ruined the debtor. Compare J. Möser, Patr. Ph., II, No. 18. Hence municipal rights in the latter part of the middle ages, which in many other respects are so antagonistic to Rome, have seldom anything to object to its measures in this matter.
[191-6] A reason why, as A. Strüver remarks, the Church which was more a creditor than a debtor, never approved the Weddeschat above mentioned.
[191-7] The institution of rent-purchase (Rentekauf) was already developed in the Hanse cities at the beginning of the fourteenth century. (Stobbe, in the Zeitschr. f. deutsches Recht, XIX, 189 ff.) About 1420, the bishops of Silesia inquired of the Pope, whether such contracts which had been the practice in Silesia for a century were lawful. The answer was a favorable one, although he left the rate of interest free in this particular case (Extr. Com. III, 5, 1, 2); after Alexander IV., however, as early as 1258, had instructed inquisitors not to take part in litigations concerning usurious contracts. Formerly all such contracts were prohibited in express terms. (Decret. Greg., V. 19, 1, 2), although, in France, the ordinances of Louis IX. and Louis X. (1254 and 1315) had established fixed rates of interest therefor. Between pledge and rent-purchase, the right of the (virtual) loaner to expel the (virtual) borrower, which after fell into disquietude, occupies, so to speak, a middle place. (Compare Eichhorn, D. St.- und R.-Gesch., II, § 361, a III, § 450.) It was decreed, in France, in 1565, that all rent in kind should be converted into money rent. (Warnkönig, Franz., St.- und R.-Gesch., II, 585 ff.)
[191-8] Magnum Bullar. Roman., II, 295.
[191-9] A Prussian law allowing interest even without a contract of rent-purchase as far back as 1385. (Voigt, Geschich. von Preussen, V, 467.) In Marseilles, in 1406, a rate of interest of ten per cent. allowed. (Anderson, Origin of Commerce, s. a.) Likewise in England, 37 Henry VIII., c. 9. In Brandenburg, 1565, 6 per cent. (Mylius, C. C., March, II, 1, 11.) A retrograde step by 5 and 6 Edward VI., c. 20; by which all interest was again prohibited. These laws had, practically, the effect of increasing interest to 14 per cent., and were therefore repealed in 1571. How unnatural the prohibition was is apparent from the fact that by 4 and 5 Philip and Mary, c. 2, the possessor of 1,000 marks was estimated equal to a person with £200 annual income. In Denmark, the taking of interest at 5 per cent. was allowed in 1554, since "although it is contrary to God's command, yet [according to an opinion given by Melanchthon] this commerce cannot be entirely abolished." (Kolderup-Rosenvinge's Dänische R. G., in Homeyer, § 142.) Similar views of the elector Augustus, 1583. (Cod. August 1, 139 ff.)