How far theze conclusions are supported by the foregoing authorities and arguments, every reeder will judge for himself. I hav ventured my opinions with my usual frankness, in opposition to thoze of the sages of the law, which hav been receeved for centuries. The vast weight of authority, and long established prepossessions of men in favor of a different theory, make me diffident of my own opinions on this subject; but there are many passages in ancient law writings, and many customs and laws still existing in the English constitution and government, which I cannot explain and reconcile on any other hypothesis.
The excellence of trial by peers, in ancient times, appeers to me to hav consisted in this; that twelv indifferent men of the naborhood, with the power of judges, were the guardians of life and property against the rapacity of the lord of the manor or hiz deputy. It iz a fact well known thatsheriffs, the deputies of the erls, were in several counties hereditary officers; but whenthey were not, they had almost-unlimitted powers in the shire, which they often abused to oppress the peeple. Under the feudal system they appeer to hav been almost absolute tyrants; and the undue exercise of their powers, probably gave rise to thoze articles of Magna Charta, which declare, that "no freeman shall be taken, imprisoned, or diseized of hiz freehold, liberties, or free customs, but by the lawful judgement of hiz peers, or by legal process; that sheriffs should not hold county courts above once a month; that sheriffs, castellans, coroners, and kings bailiffs, should be restrained from holding pleas of the crown; that sheriffs, who had the management of the crown revenues, within their several districts, should not raize the farms of counties, hundreds and tythes, according to their plezure." Theze provisions were evidently designed to remedy actual evils; the violence and usurpations of the executiv officers, who acted under the king, or the great lords, with powers almost uncontrolled.[126]Against such petty tyrants, the revival or confirmation of the right of trial by twelv freeholders of the vicinage, must hav been a capital security: But freeholders alone could be impannelled on a jury;freeholdersalone could be diseized offreeholds; consequently the privilege of being tried byequals, could extend to freeholders only. With respect to all others, the excellence of the institution could not consist in theequality of conditionin the jurors; but in having twelv substantial freemen, impartial, independent men, unaccustomed to oppression, to check and control the ministers of justice.
Since the separation of court and jury, law and fact, juries, in civil cases, hav become of less consequence.Judges are appointed by the representativs of the peeple, ether in legislature or some other form, and are removeable for misbehavior. They are usually az good judges of fact as a jury, and better judges of law. One state[127]haz a statute empowering the parties to submit fact az well az law to the court. This places the court on its Saxon institution, except az to the number of judges. It iz also a common practice for the parties to agree on the facts, and submit the law to the court. The practice supersedes a jury. On commercial questions an ordinary jury are altogether unfit to decide; they are incompetent judges, because commerce iz regulated by peculiar laws, best known by merchants. Hence the institution of chambers of commerce, and the practice of referring causes to arbitrators of the mercantile profession.
But the principal valu and excellence of juries are preserved in criminal causes. Judges, by long custom, become hardened in the business of condemning, and may sometimes pronounce sentence, which, even when legal, may be unnecessary. Jurors, less accustomed to the cruel task, retain thoze feelings which sometimes pleed against evidence, in favor of humanity, and soften the rigor of penal laws.
I shall cloze theze remarks with two quotations from very respectable authors.
What Camden haz collected concerning the wordbaron, serves to illustrate and confirm my opinions on this subject; and the reeder will be pleezed with the following passage from his Britannia, Vol. I, page 238.
"Among the greater nobility, the barons hav next place. And here, tho I am not ignorant what the lerned write concerning the signification of this word in Cicero; yet I am willing to cloze with the opinion of Isidore, and of an ancient grammarian, who will havbaronsto be mercenary soldiers. This seems to be pretty plain from that known place of Hirtius in the Alexandrian war; "they run to the assistance of Cassius; for he always used to havbarons, and a goodnumber of soldiers for sudden occasions, with their weapons reddy, about him, and separate from the rest." Nor iz the old Latin and Greek Glossary against us, when it translatesbaroby ανηρ a man; az always in the laws of the Longobards,baroiz used for a man.
The etymologies of this name which some hav fancied, do not by any meens please me. The French heralds will hav barons to be so called frompar-hommesin French; that iz, of equal dignity; the English lawyers say it iz fromrobora belli, the sinews of war; some Germans think it a contraction of banner-heirs, i. e. standard bearers; and Isidore derives it from bareis, i. e. grave or weighty. Alciatus thinks the name comes from theberones, an ancient peeple of Spain, which he says were formerly stipendiaries; but that other, from the Germanbar, i. e.a free man, pleezes me better.
The precise time when this name came into our island, I hav not yet discovered: The Britons disown it; and there iz not the leest mention made of it in the Saxon laws, nor iz it reckoned in Alfrick's Glossary among the titles of honor; for there,dominusiz translatedlaford, which we hav contracted intolord. And among the Danes, the free lords, such az our barons are at this day, were called thanes, and (and az Andreas Velleius tells us) are termed so still. In Burgundy, the use of this name iz very ancient;[128]for Gregory of Tours says thus, "the barons of Burgundy, az well bishops az others of the laity, &c." The first mention of a baron in England, that I hav met with, iz in a fragment of the laws of Canutus, king of England and Denmark, and even there, according to different copies, it iz read vironus, baronus, and thani. But that the barons are there ment, iz plain from the laws of William the conqueror; in which that word in the laws of Canutus iz translated bybaro. Take the whole passage. "Let the exercitals[129]be so moderated, az to be tolerable. An erl shall provide such things az are fitting, eight horses, four saddled and four unsaddled;four steel caps, and four coats of mail; eight javelins,[130]and az many shields; four swords, and two hundred mancae[131]of gold. But a kingsvironorbaron, who iz next to him, shall hav four horses, two saddled and two unsaddled; two swords, four javelins, and az many shields, one steel cap, and fifty mancae of gold."
In the beginning of the Norman times, the valvasors and thanes were reckoned in order and dignity, next to the erls and barons, and the greater valvasors (if we may beleev thoze who hav written concerning feudal tenures) were the same that barons are now. So that baro may seem to hav come from that name; which time haz, by little and little, made somewhat smoother. But even then it was waz not a title of any great honor; for in thoze times there were erls who had their barons under them: And I remember, I hav red in the ancient constitutions of France, that there were ten barons under one erl, and az many cheeftans[132]under a baron. It iz likewise certain, that there are charters since the Norman conquest, wherein the erls write thus: "To all my barons, az well French az English, greeting, &c." Nay, even citizens of the better rank were calledbarons; so in domesday book the citizens of Warwick are stiledbarons; and the citizens of London, with the inhabitants of the cinque ports, had the same title given them. But a few years after, az senators of Rome were chosen according to their estates, so they were accountedbaronswith us, who held their lands by an entire barony, or thirteen knights fees, and one third of a knights fee, every fee (az we hav had it in ancient book) being computed at twenty pounds, which in all make four hundred marks; for that waz the value of one entire barony; and they who had land and revenues to this value, were wont to be summoned to parliament. It seems tohav been a dignity, with jurisdiction, which our court-barons in some mezure show.[133]And the great number of barons iz an argument that they were such lords who couldhold pleez within their own jurisdiction, (like thoze whom the Germans call free-heirs) especially if they had their castles; for then they answered the definition of Baldus, the famous lawyer, who calls him a baron, that had a mere and mixt government in some castle, by the grant of the prince. And (az some would hav it) all who held baronies, seem to hav claimed that honor; so that some of our lawyers think, that baron and barony, erl and erldom, duke and dukedom, king and kingdom, were in the nature of conjugates. It iz certain, that in that age, king Henry III, reckoned one hundred and fifty baronies in England. From hence it iz, that in the charters and histories of that age, almost all noblemen are stiled barons; a name, which in thoze times waz exceeding honorable; the baronage of England including in a manner all the prime orders of the kingdom, dukes, marquisses, erls and barons.
But that name haz been much more honorable since king Henry III, out of such a multitude, which waz seditious and turbulent, summoned to parliament by writ, some of the best[134]only; "for he," (the words are taken out of an author of considerable antiquity) "after thoze great disturbances and heart-burnings between himself, Simon de Montefort, and other barons, were laid; appointed and ordained, that all such erls and barons of the kingdom of England, to whom the king should vouchsafe to direct hiz writs of summons, should come to hiz parliament, and no others, unless their lord the king should pleeze to direct other writs to them also." And what he began a little before hiz deth, waz strictly observed by Edward the I, and hiz successors. From that time they were only looked on as barons of the kingdom, whom the king by such writs of summons had called to parliament; until Richard the II, in the eleventh year of hiz reign, created John de Beauchamp of Holt, baron of Herderminster, by the delivery of a diploma, bearing date the tenth of October. From which time, the kings hav often conferredthat honor by diploma, (or rather honorary letters) and the putting on of an honorary long robe. And that way of creating barons by diploma, and the other of writs of summons, are in use at this day; tho they are mentioned therein not by the name ofbaron, but ofchevalier. They who are thus created, are called barons of parliament, barons of the kingdom, and barons honorary, to distinguish them from thoze who are commonly called barons according to the ancient constitution; az thoze of Burford and Walton, and such az were barons to the counts Palatine of Chester, and of Penbroch, who were feudal, and barons by tenure only."
This account of Camden's, iz alone sufficient to convince me, that my opinions are right respecting the origin and signification of the wordbaron. But this author cleerly mistakes the meening in the passage quoted from Hirtius. "Cassius used to havbarons, and a good number ofsoldiers, for sudden occasions." Insted of mercenary soldiers,baronshere meens thecomites, retainers, who were chosen men, and who served their cheef voluntarily. Theze attached themselves to the person of the cheef, az a military guard; at the same time, they served to gratify the pride of the hero: Hæc dignitas, hæ vires, says Tacitus.
I hav before remarked that it iz probablebarandvirare the same word. Camden tells us, the Greek Glossary translatesbaroby ανηρ, and in the laws of William, the Norman, thevironus,baronusandthanus, found in the laws of Canute, are translated bybaronorviron.Bandvare convertible letters, and theze facts amount to a convincing proof thatbarandvirare the same word, or from the same root. The progress of the word iz this. First it denoted a man or husband,vir; afterwards a freeman or proprietor of land,bar,baron,viron; in proportion az the valu of lands encreesed in Europe, the proprietors acquired welth and influence; they claimed exclusiv judicial powers on their manors, and thus the wordsbaronandpeercame to signifyjudge. Under the feudal system, theze baronsbecame princes on their territories, subordinate only to the king or lord paramount. Power attends property, and theze barons finally assumed the right of controlling kings, and trampling on their tenants. Where the barons and princes combined, they established despotic authority over the peeple; when they quarrelled, one party or the other had recourse to the commons for assistance, and waz compelled to grant them considerable privileges.
The foregoing explanation ofbaroniz confirmed by another fact now existing. In law, ahusbandiz calledbaronto this day,baronandfemme, husband and wife. Agreeable to this idea, the terms used in ancient infeudations by the tenant or vassal, were,devenio vester homo; I become yourman; that iz, yourbaron, in the feudal sense of the word. And a jury, in conformity with the same idea, were anciently calledhomagium, thehomage, or manhood; that iz, a court ofbarons, landholders or free tenants.
I would only remark further, that Camden iz probably mistaken in saying the Britons disown the wordbaron. In Welsh,barnsignifies a judge, and there can be little dout that the word iz from the same original; being written without the vowelo, agreeable to the Hebrew manner.
Different nations are more or less inclined to uze the vocal sounds and aspirates, according to the different genius of their languages. So in Irish the word waz pronounced with an aspirate,barhon, orbrehon; for there iz little room to dout this old Irish word iz from the same root. At the time of the conquest of Ireland by Henry II, the Irish were governed by thebrehon law, so stiled frombrehon, the Irish name of judges.[135]We are also told that the ancient Irish had a custom of deciding causes bytwelvmen[136]; and authors testify that the same practice existed in ancient Britain.[137]Their decision iz called by the erly writers,duodecem virale judicium. In short the universality ofthis word and the trial by twelv, iz a strong proof, that all the nations of Europe sprang from a common stock.[138]
Sir William Temple derivesbaronsfrom the Russianboiarons, and supposes the word to be of Gothic original. Hiz only inaccuracy iz, that he takes a modern derivativ for the primitiv root; whereas the Russianboiaronsitself iz derived frombar, az wel azbaron. The authority of this judicious and lerned writer wil however confirm what I hav advanced in the foregoing pages; I shal therefore cloze my remarks with a passage from hiz works, vol. III. 363.
"I know very well how much critic haz been employed by the most lerned, az Erasmus, Selden, Spelman, az well az many others, about the two wordsbaroandfeudum; and how much pains hav been taken to deduce them from the Latin and Greek, and even the Hebrew and Egyptian tungs; but I find no reezon, after all they hav said, to make any doubt of their having been both the original of the Gothic or northern language; or of barons having been a term of dignity, of command, or of honor, among them, and feudum of a soldier's share of land. I find the first used abuv eight hundred years ago, in the verses mentioned of king Lodbrog, when one of hiz exploits waz to hav conquered eightbarons. And tho fees or feuda were in use under later Roman emperors, yet they were derived from the Gothic customs, after so great numbers of thoze nations were introduced into the Roman armies. Az to the wordbaro, it iz not, that I find, at all agreed among the lerned, from whence to derive it; but what that term imports, it iz easy to collect from their several accounts, and confirm by what stil remains in all the constitutions of the Gothic government. For tho bybaronsare now ment in England such az are created by patent, and thereby called to the house of lords; andbaronin Spanish signifies only a man of worth or note, and the quality denoted by that title be different in the several countries of Christendom; yetthere iz no question, but they were originally such persons az, upon the conquest of any country, were, by the conquering prince, invested in the possession of certain tracts or proportions of free lands, or at leest az they held by no other tenure but that of military service, or attendance upon their prince in war with a certain number of armed men. Theze in Germany, France, Scotland, seem to hav had, and some stil to retain, a sovereign power in their territories, by the exercise of what iz called high and low justice, or the power of judging criminal az well az civil causes, and inflicting capital punishments. But I hav not found any thing of this kind recorded in England, tho the great barons had not only great number of knights, but even petty barons holding under them.
I think the whole relm of England waz, by William the conqueror, divided into baronies,[139]however the distinctions may hav been long since worn out; but in Ireland they still remain, and every county there iz divided into so many baronies, which seem to hav been the shares of the first barons. And such as theze great proprietors of land, composed, in all the north west regions (of Europe) one part of the states (estates general) of the country or kingdom."
Sir William Temple proceeds then to giv hiz conjectures respecting the origin of the wordbaron. He remarks that Guagini, in hiz description of Sarmatia, printed in 1581, calls all thoze persons who were cheef possessors of lands and dignities, next to the prince, duke or palatine, in the vast empire of Muscovy, by the common appellation ofboiarons, now contracted intoboiars. From this he supposesbaronto be derived. It iz however much more probable thatbaronandboiaronhad a common root in some period of remote antiquity; which afterwards spread into all parts of Europe.
With respect to trial by jury, Sir William remarks, Vol. III. 130, that this waz undoutedly of Saxon institution, and continued thro all the revolutions in England. He says there are some traces of it in the first institutions of Odin, the first great leeder of the Asiatic Goths or Getæ into Europe. He mentions the council of twelv, established by Odin, and thinks it probable theze twelv men were at first bothjudgesandjurors; that iz, they were a court of arbitrators or referees, az we should now style them, empowered to decide all causes according to equitable principles and the circumstances of each case; and their determinations afterwards grew into precedent for their successors. In process of time and multiplicity of business, the matter of fact continued to be tried by twelv men of the naborhood; but the adjudgement of punishment and the sentence waz committed to one or two persons of lerning or knowlege in the ancient customs, records and traditions. Thus, he observes, in the Saxon reigns, causes were adjudged by the aldermen and bishop of the several shires, with the assistance of twelv men of the same county, who are said to hav been judges or assistants. He allows, the termsjuryandverdictwere introduced by the Normans; but asserts very justly that trials by twelv men, with that circumstance of their unanimous agreement, were used not only among the Saxons and Normans, but are known to hav been az ancient in Sweden, az any records or traditions in the kingdom; and the practice remained in some provinces of that country, til the late revolution.
POSTSCRIPT.
On further examination of this subject, I am led to subjoin the following remarks, which are supported by the indisputable authority of Glanville and Bracton.
I hav before suggested that the Saxons, prior to the conquest, conducted most of their important affairs in the county or sheriffs court, where all the free tenantswere bound to attend. Theze free tenants consisted of the lesser barons, the knights and fokemen, or foccage tenants who had freehold estates. Theze freeholders, were, by the nature of their estates, thepares curtis; they were the proper and solejudgesof all causes triable at the county court, which included almost all civil actions, and they were denominated in Saxon,lahmen, lawmen. The county court, thus composed of all the freeholders in the shire, waz a tribunal of great consequence, and inferior only to the witena-gemote, or national assembly. The Latin riters called theze freemenpares curtisandsectatores,peers of courtandsuitors.Curtisiz a Saxon word latinized,[140]likewarrantizo murdrum, and hundreds of other law terms; and there iz little dout thatparesiz a word of similar origin.
But what places the point I would establish, beyond controversy, iz, thepares curtiswere in fact of different ranks. The knights or lesser barons, az well az the common foccage tenants, were included in the termpares curtis; for they were bound to do suit and service in the court of the lord paramount. Another fact, iz of equal weight in the argument: Thezepares, in the county court, tried all real actions between the nobility. In the cause of Odo, Bishop of Bayeux, and archbishop Lanfranc, in the reign of William the conqueror, the king directedtotum Comitatum considere. Many similar instances might be cited, were it necessary. Theze noblemen were tried by thepares curtis, the peers of the county court; but who ever said they were tried by theirequals?
The Norman princes attempted to discountenance theze shire motes of the Saxons, and substitute the trial of facts by twelvjuratores, men sworn to speek the truth. In the reign of Henry II, the trial by jurors had become common, if not general. Questions ofseisinwere tried by twelv common freeholders; but questions ofrightwere tried by twelv knights; the sheriff summoningfourknights who elected thetwelv.
I would here remark that the principal original reezon for summoning freeholdersof the vicinage, waz that of their supposed personal knowlege of the fact in dispute. Thejurorswere properly thewitnesses. This iz evident from circumstances and from the positiv testimony of the erly law-riters. The first mention of a proper jury, in any public act, iz in the constitutions of Clarendon, 1164, where the sheriff iz directed,quòd faciat jurare duodecim legales homines de vicineto, seu de villa, quòd inde veritatem secundum conscientiam suam manifestabunt. It iz said in old writers that the jurymust speek the truth, if they know it. If the twelv men first summoned knew the truth, they were compelled to declare it, under the penalty of perjury. If some knew the facts and others did not, the latter were dismissed and others summoned, till twelv were found who knew the facts, ether by what they had seen and heerd themselves, or from such testimony of their fathers and others, az gained full credit.
Without attending to juries in this light, the laws respecting them appeer beyond measure absurd and tyrannical. Their beingsworn to speek the truth, would be absurd on any other ground; for had they judged of facts ontestimony, they would hav been sworn to declaretheir opinion, and not thetruth. Theirverdict, vere dictum, derives its name and propriety from the same circumstance; and the present practice of swearing them to "a tru verdict giv," when they judge of facts only by the perhaps contradictory testimony of several witnesses, iz, strictly speeking, absurd.
The keeping juries, without meet, drink or fire, can be accounted for only on the same idea; it waz a method to compel an agreement among men, who wereacquainted with facts, some of whom might at times be obstinate, and not willing to disclose them. But how ridiculous would it be to punish men for not agreeingin opinion, about what others testified!
All this iz still more evident from the manner in which many questions respecting real estates were ascertained and determined. It waz customary for thejurors, after they were chosen, to go upon the land to find the tru state of the fact in question, and then deliver their verdict. Hence the propriety of the expression inclosingissues;and this he prays may be enquired of by the country.
I would observe further, that the reezon, why appeels from the verdict of a jury were not allowed, iz simply this, that the jurors were supposed to hav decided from theirown knowlege. It waz certainly a wise provision that the solemn declaration of men under oath, living in the naborhood, and eye or eer witnesses of the recent transactions between the parties, should not be overthrown by other testimony; for all other evidence must hav necessarily been of an inferior nature. But the reezon haz ceesed, and there iz now nothing more sacred in the verdict of a jury, given on the testimony of others, than there iz in the opinions of arbitrators, referees or auditors under oath. The laws respecting juries are all founded on the idea that the men were acquainted with the facts in dispute. Their verdict waz formerly adeclaration of facts; it iz now a merematter of opinion. In short, the original design of the institution iz totally changed, and mostly superseded. Since juries rely on testimony, they need not be collected from thevicinage; it iz even safer to hav men who are strangers to both plaintiff and defendant. Jurors cannot be punished forperjury, for how can a manperjurehimself in giving hizopinion? They cannot be starved to deth, nor carted about town for disagreement; for how iz it possible for twelv men always tothink alike, when they hav to form their opinions on clashing testimonies? In short, juries do not now answer one of the purposes for which they were at first instituted; and however necessary they may be deemed to the preservation of civil liberty, it appeers to me they are, in a great measure, useless.
I cannot leev this subject without remarking the influence of habit, in maintainingforms, when thesubstanceno longer exists. This iz neerly the case with the whole institution of juries; but particularly in themanner of administering the oath to them. The practice of swearing the foreman and the other jurors separately, still exists in some of theze states, altho the reezon no longer remains. It originated in the manner of delivering the verdict, which waz, for every juror separately to answer the interrogatories of the judge. While this practice remained, it waz very proper that eech juror should take a separate oath; altho this formality iz dispensed with, in administering the oath to witnesses, in modern courts; the words, "youandeech of youswear," being substituted for a separate administration of the oath.
HARTFORD, SEPTEMBER, 1789.
TheINJUSTICE, ABSURDITY,andBAD POLICYofLAWSagainstUSURY.
Usury, in the primitiv sense of the word, signifies any compensation given for the use of money; but in modern legal acceptation, it iz the taking an exorbitant sum for the use of money; or a sum beyond what iz permitted by law. The municipal laws of different states and kingdoms hav fixed different rates of interest; so that what iz usury in one country or state, iz legal interest in another. The propriety of such laws iz here called in question.
1. It iz presumed that such laws areunjust. Money iz a species of commercial property, in which a man haz az complete ownership, az in any other chattel interest. He haz therefore the samenaturalright to exercise every act of ownership upon money, az upon any other personal estate; and it iz contended, he ought to hav the samecivilandpoliticalright. He ought to hav the same right to trade with money az with goods; to sell, to loan and exchange it to any advantage whatever, provided there iz no fraud in the business, and the minds of the parties meet in the contracts. The legislature haz no right to interfere with private contracts, and say that a man shall make no more than a certain profit per cent. on the sale of hiz goods, or limit the rent of hiz house to the annual sum of forty pounds. This position iz admitted for self evident, az it respects every thing but money; and it must extend to money also, unless it can be proved that the privilege of using money in trade or otherwise without restraint, and making what profit a man iz able by fair contract, with gold and silver, az well az with houses and lands, will produce some great public inconvenience,which will warrant the state in laying the use of such gold and silver under certain restrictions.[141]
The only reezon commonly given for limiting the interest of money by law, iz, that monied men will otherwise take advantage of the distresses of the poor and needy, to extort from them exorbitant interest. Admit the proposition in its utmost latitude, and it furnishes no argument in favor of the restraint,because the restraint iz no remedy for the evil. On the other hand, it generally increases the evil; for when the law forbids a man to take more than six per cent. for the use of hiz money, it, at the same time, leevs him the right of withholding hiz money from hiz distressed nabor, and actually lays before him the strongest motivs for withholding it. The law tuches the pride of a man, by restraining what he deems an unalienable right, and this consideration, added to a certainty of employing hiz money to greater advantage, impels the man to turn a deef eer to hiz nabors calamities, when he would be otherwise disposed to afford relief. The law therefore, so far from furnishing a remedy, actually doubles the evil.
To proov this assertion more cleerly, let me call the attention of my reeders to facts within their knowlege. Every man knows that there are persons in every state, who, thro imprudence, idleness or misfortune, become involved, and unable to pay their dets when du. Theze persons seldom make provision for discharging their dets, till they are pressed by their creditors. When they are urged by just demands or legal process,they are under a necessity of raising money immediately: But money iz scarce; it iz in a few men's hands, who will not pay the full valu of lands or personal estate. The poor detor iz then obliged to sell hiz farm or hiz cattle, or both, at private sale or at auction, for any price they will fetch, which iz commonly but a small part of the valu. Now, if the detor could hav borrowed a sum of money, at ten, fifteen, or even twenty per cent. he might hav been a gainer by the loan; for by being prohibited by law from borrowing money, at a high interest, he haz been obliged to sacrifice twenty, perhaps fifty or a hundred per cent. Laws against usury do not help such men; on the contrary they oppress them. Could such men get money even at twenty per cent. they would often be benefited by the loan; they might save their estates and avoid misery and ruin. A prohibition of high interest only compels the distressed to seek releef by sacrificing property in a way not guarded against by law. Nay, I beg leev to assert that such laws are the very meens of producing, supporting and enriching a host of oppressors in every state in America. There are a few men, in every state, who are what iz calledbeforehand; theze men will not loan money at legal interest, for this very good reezon, theycan do better with it, az they say; and no man can blame another for making the most profitable use of hiz money. Theze men therefore keep their money, till their distressed nabor iz forced by det to sell hiz farm; then iz the time to lay out their money; they get the farm at their own price, which iz generally less than half its valu. In most states, lands are sold at auction, where they are sacrificed; and the poor owner haz all the charges of a legal suit to pay, az wel az the det; and the land sold for a small part of its valu. This iz the common practice, authorized by law; so that laws against usury onlycreatean evil in one way, by endevoring toprevent itin another.
The evil and hardships of this law, of selling real estate on execution, hav been so great, az to giv rise to a different mode of satisfying executions in Connecticut.In this state, a man's person and estate are both liable for det; but if the personal estate iz insufficient, the creditor haz hiz election, ether to confine the dettor in prison, or take hiz lands. But the law, which iz so far in favor of the creditor, here steps in to prevent a sacrifice of the real property at public sale; and ordains that the creditor shall take it at a value, which shall be apprized by three indifferent freeholders. This law does injustice to the creditor; for it interferes with the contract, and obliges him to take that for pay which he did not engage to receev. But it favors the dettor, in a state where money iz scarce and cannot be eezily raized on an emergency. So far one law, by doing injustice to creditors, corrects some of the ill effects of the law against high interest in Connecticut; but the remedy iz partial, for men in distress for money, generally sell their estates at private sale, for one half their valu; and a few monied men and rich farmers are constantly taking advantage of their nabors calamities, to enrich themselves. Such men make more than fifty per cent. per ann. on their money by theze speculations, and no law can wholly prevent them. Now laws against usury create this very evil: They drive money from a country; they create a necessity for it; and then a few welthy men enrich themselves, not by loaning at fifteen or twenty per cent. but by purchasing lands at half price, which are sold to keep men from jail, who, if they could hav got money for a few months, at twenty per cent. might hav sold their estates to advantage, or otherwise paid their dets. In general then we may obzerv, when a man iz reduced to the necessity of asking money at twenty per cent., hiz situation iz such that it iz better to giv that interest, than to risk a sale of property on a sudden to raize the money. Laws against usury do not save such men; it iz idle to suppose it; on the contrary, they multiply instances of oppression, az all America can witness.
But the argument, if good, proovs too much. If legislators hav a right to fix the profit on money at interest, to prevent exorbitant demands from injuring thenecessitous, wil not the same reezon warrant a restriction on the profits of every commodity in market? If my rulers hav a right to say, my annual profit on money loaned, shal be but six per cent. hav they not a right to say the advance on my wheet shal be but six per cent.? Where iz the difference? A poor man may indeed be distressed by a demand of high interest, and so he may by the high price of flour; and I beg leev to say, that distresses from the last cause are infinitely the most numerous, and the most deserving of legislativ remedies. It wil perhaps be said that the price of bred, in all cities, iz fixed by law—tru; but if the price of wheet iz not likewise fixed, there are times of scarcity when the law must vary the price, or the baker must be ruined, and the poor be destitute of bred. In an extensiv fertile country, like America, such cases may not happen frequently; but the actual existence of the fact proovs that such laws ratherfollowthe state of the market, thanregulateit. And indeed it iz a question, whether in this country, the citizens of our large towns would not be supplied with bred at a cheeper rate, without any regulations at all.
2. But theabsurdityandbad policyof laws against usury, are so obvious, that it iz surprizing scarcely an attempt haz been made to abolish them in any country. Such laws are absurd and impolitic, because they actually and always produce and multiply the distresses they are designed to remedy. It iz impossible it should be otherwise: The very laws of nature and commerce require that such restraints should necessarily counteract their own design. It iz necessary that commodities should be sometimes plenty and sometimes scarce; and it iz equally necessary that money, the representativ of all commodities, should be liable to the same fluctuations. In the commercial world, money and commodities wil always flow to that country, where they are most wanted and wil command the most profit. The consequence iz that a high price soon produces a low price, and vice versa.
Let us apply the principle to the present question. When money can bear its own profit, its profit or the interest arising on loans, wil be in proportion to the profit made in commercial transactions. If a man can maketwelv per cent.on hiz stock, in any kind of trade or speculation, he wil not convert that stock into cash, and loan it atsix per cent.While therefore commerce or speculation wil afford a man greater profits, than the law affords him on hiz loans of cash, he wil hav no money to lend. The consequence iz, while the law fixes the rate of interest lower than the annual profits of other business, a country wil be destitute of money.
This iz precisely the case in America. Our remittances to Europe and the East Indies require considerable sums in specie to be exported; and the merchant wil not import specie, except to facilitate the purchase of hiz cargoes in America. He will not import it for the purpose of loaning, because hiz stock in trade affords a better profit. The few landholders who hav a little cash abuv their annual expenditures, wil not loan it; for they can make twelv, fifteen, eighteen per cent. on their money by the purchase of certificates, and more on the purchase of lands. There are therefore no motivs, no inducements, for the welthy citizens to loan money, and consequently when a man iz distressed to make a payment, he iz compelled to sacrifice property to perhaps five times the valu of the det; because the law will not permit hiz nabor to take twelv or fifteen per cent. per ann. for the loan of money, a few months; when he haz the money, and would gladly releev hiz frend, if he could receev an adequate compensation.
Thus laws against usury drive cash from a country. They really and continually create a scarcity of an article, and then restrain men from raizing the price, in proportion to that scarcity. They create distresses of the poor, and at the same time, create an impossibility of releef. Were money left, like all kinds of commodities, to command its own price in market; whenever its price should rize abuv the usual cleer profit of otherbusiness, men would import specie, or turn their stock into cash, and loan it on good security; for no man would submit to the drudgery of business, if he could make money az fast by lying stil, with hiz money at interest. Had money been permitted to bear its own price according to the demand for it in America since the war, it would hav been kept in the country, or introduced til the rate of interest had fallen, even below the legal standard. Limit the profit on any article of life, and set the price so low that peeple can make more by deeling in other articles, and the articles so fixed wil become scarce and deer. Were the legislatures of the several states to say that our traders should make but one per cent. on salt, they would not bring cargoes of it to the country. It would be az scarce az money iz now. Let the price of wheet be fixed at half a dollar a bushel, and in two years we should not hav a bushel in market. It iz the same case with money. The low profits on the use of money, expel it from the country, and none can be obtained at the legal price. Let the interest rize to any sum which can be obtained, and in two years, it would be az eezy to borrow money at a low interest, az it iz now difficult to command it at any price. The laws of nature wil continue to opperate, in spite of the feeble opposition of human power.
Another consideration demands our notice. The laws against usury increase the distresses of the needy, by enhancing the risk, and consequently the insurance on loans.[142]It iz fruitless to attempt to prevent loans of money. When men are pressed for money, they can always find persons to supply them, uponsometerms. But az a loan of money at a higher rate of interest than iz allowed by law, exposes the lender to a loss of the money, and a fine or forfiture besides, hiz demand for the use of hiz money wil rize in proportion to that risk.This haz always been one of the most pernicious effects of such laws. So that the law, not only creates a scarcity in the first instance, but actually raizes the demand of interest much abuv the natural demand required by that scarcity. In short, insted of releeving the detter, it multiplies hiz distresses four fold.
Besides, such laws, like all national restrictions on trade, tend to make men dishonest, in particular things, and thus weeken the powers of the moral faculty. There are ten thousand ways of evading such laws, and slight evasions gradually produce a habit of violating law, and harden the mind against the feer of its penalties. Indeed, such laws tend to undermine that confidence which iz the basis of social intercourse. Laws which encourageinformations, should be enacted with caution. Such are laws against usury. A man haz often the strongest temptation to be a treecherous rascal, by inducing hiz frend to loan him money, on illegal interest, and then betraying him. This species of villany waz lately carried so far in Massachusetts, az to induce the legislature to repeel a clauze of their law against usury. And a man of morality must shudder, while he reeds the legal prosecutions and adjudications in England upon their statutes of usury.
The absurdity of attempting tofix the valu of moneyiz another objection to it of no small consequence. The valu of it depends wholly on the quantity in circulation and the demand. In this respect it resembles all other articles of trade; and who ever thought of fixing the price of goods by law?[143]It iz almost impossible for a legislature to ascertain exactly the valu of money at any one time; and utterly impossible to say that the valu when ascertained, shall continu the same for six months. Nay, two slates adjoining eech other may estimate the use of money very differently at the same period. In New York the legal interest iz seven per cent. in New England but six. A man may therefore do that legallyin one state, which in the others would expoze him to a severe penalty.
In ancient Rome, the interest waz twelv per cent. The emperor Justinian reduced it to four, but allowed higher interest to be taken of merchants, on account of the risk. In Holland, when Grotius wrote, the common interest waz eight per cent.; but twelv to merchants. In England, the statute 37th, Henry VIII, confined interest totenper cent. By the 21st James I, it waz reduced to eight; by the 12th Charles II, to six; and by 12th Ann, to five, the present legal interest in that country.[144]
Postlethwaite remarks very justly that theze laws hav not ascertained the real valu or interest of money; for when the legal interest haz been six per cent. the real interest haz sometimes been four; and when the legal interest haz been five, the real interest haz sometimes been seven. Indeed the interest of money depends on such a combination of circumstances, az the scarcity of money, the demand in market, and the hazard, that an attempt to find and fix a permanent rate, iz one of the most visionary schemes that a public body can undertake. To proov the impossibility of such a scheme, I would only mention the continual practice of violating laws against usury; which would not be the case, if the real valu of money had been ascertained and fixed.[145]If legislatures had found the tru valu of the use of money, there would hav been fewer violations of their laws: If they hav, in any case, fixed a rate of interest lower than the real valu, they hav violated the rights of their subjects. This iz a serious consideration; and perhaps in no instance are the laws of England and America more strongly marked with the traces of ancientprejudice and barbarity, than in the prohibition which prevents a man from using hizmoneyaz he pleezes, while he may demand any sum whatever for the use of hiz other property.
The only power, I conceev, a legislature haz to determin what interest shall arize on the use of money, or property, iz where the parties hav not determined it by agreement. Thus when a man haz taken up goods upon credit, or where, by any other legal meens, a man becomes possessed of anothers money or estate, without a specific stipulation for interest, the law very properly steps in and ascertains the sum which the detter shall pay for the use of that money. But to make a law that a man shall not take but six per cent. for the use of money, when the borrower iz willing to giv more, and the lender cannot part with hiz money at that rate of interest, iz a daring violation of private rights, an injury often to both parties, and productiv of innumerable embarrassments to commerce.
We are told that such laws are necessary to guard men from the oppression of the rich. What an error! Waz a monied man ever compelled to assist a distressed nabor, by the forfitures incurred by such laws? Iz not hiz money hiz own? Wil he lend it all, if it should not be for hiz benefit? Besides, cannot a man in necessity alienate hiz property for one fourth of its valu? Are not such bona fide contracts made every day to raize money to answer a temporary purpose? Nay, hav not the laws of all commercial states authorizedsales by auction, where any man may part with hiz property for a fourth of its valu? Iz there any remedy in law against such a sacrifice of a man's estate? Wherein then consists the security of laws against usury? In the name of common sense and common equity, let legislators be consistent. If men are improvident, lazy and careless, a loss of property wil be their punishment, and no mezures of government wil prevent it.
To what then shall we ascribe the severe laws against high interest, which hav been and stil are existing in most commercial countries? I presume the cause maybe easily assigned. The Jewish prohibition, not to take interest, except of strangers, first gave rise to douts in the minds of our pious christian forefathers, with respect to the legality of any interest at all. This produced, in the dark ages, severe ecclesiastical laws against taking any thing for the use of money; and theze laws originated a general prejudice against it, thro the Christian world.
In the twelfth and thirteenth centuries, commerce began to revive; but az there waz but little money, and trade waz lucrativ, because in few hands, money bore a very high interest. In some parts of Europe, the interest waz forty per cent. Even with this interest, certain Italian traders could make an annual profit, and therefore it waz for their benefit to giv it. It however rendered them very unpopular.[146]
The Jews, for their infidelity, had been considered by the Christians az outcasts on earth. Severe laws were enacted against them in almost every country; depriving them of the rights of citizens, and forbidding them to hold real estates. Proscribed and insulted, the poor Jews were compelled to turn theirhand against every manin their own defence. They commenced strolling traders and bankers, and by theze meens commanded a large share of the money in every kingdom.
With this command of cash, the Jews very justly compensated themselves for the injuries they suffered from the tyrannical laws which existed against them. They loaned money at the highest rate of interest they could obtain. Hence the general karacter of the Jews, and the prejudice against them that survives to this enlightened period.
It iz very probable, that before the discovery of the American mines, money waz so scarce in Europe, that a few brokers in eech kingdom might engross such a share, az to hav it in their power to oppress peeple. This waz evidently the case in England, about the reign of Edward I, and the parliament thought proper to interfere and restrain the evil. Laws against usurywere doutless necessary and useful at that time. But since the world haz been filled with gold and silver from South America, and nations hav opened an intercourse with eech other, there never can be a want of specie, where a country can supply produce enough to exchange for it. It haz become a mere fluid in the commercial world; and in order to obtain a supply, in a country abounding with produce and manufactures, the legislature haz nothing to do, but let it bear its own price; let it command its own valu, ether at interest, or in exchange for commodities.
Laws against usury therefore I consider az originating ether in the necessity of the times, which long ago ceesed, or in a bigotted prejudice against the Jews, which waz az barbarous formerly, az it iz now infamous. Laws restraining the interest of money I now consider, in the same light, az I do laws against freedom of conscience. And were it not for the force of habit, I should az soon expect to see a modern legislature ordering a pious sectary to the stake for hiz principles, az to see them gravely passing a law, to limit the profit on the use of hiz money. And unless the legislatures of this enlightened age should repeel such laws, and place money on a footing with other property, they will be considered az accessory to a direct violation of the deerest rights of men, and will be answerable for more frauds, perjuries, treechery and expensiv litigations, than proceed from any other single cause in society. I am so firmly persuaded of the truth of theze principles, that I venture to predict, the opinions of men will be changed in less than half a century, and posterity will wonder that their forefathers could think of maintaining a position so absurd and contradictory, az that men hav no right to make more than six per cent. on theloan of money, while they hav an indefeezable right to make unlimited profit on their money in any other manner. They will vew laws against usury in the same light that we do the inquisition in Spain, the execution of gypsies and witches in the last century,or thoze laws of England which make 100l. annual income necessary to qualify a man for killing a partridge, while they allowforty shillingsonly to qualify him for electing a knight of the shire.
HARTFORD, OCTOBER, 1789.
OnALLEGIANCE.
Writers on law divide allegiance into two kinds,naturalandlocal. "Natural allegiance iz such az iz du from all men born within the kings dominions, immediately upon their berth. For immediately upon their berth, they are under the kings protection; at a time too when (during their infancy) they are incapable of protecting themselves. Natural allegiance iz therefore a det of gratitude, which cannot be forfeited, cancelled or altered, by any change of time, place or circumstances; nor by any thing but the united concurrence of the legislature. An Englishman who remoovs to France or to China, owes the same allegiance to the king of England there az at home, and twenty years hence az wel az now. For it iz a principle of universal law, that the natural born subject of one prince cannot by any act of hiz own, no, not by swearing allegiance to another, put off or discharge hiz natural allegiance to the former; for hiz natural allegiance waz intrinsic and primitiv and antecedent to the other, and cannot be devested, without the concurrent act of that prince to whom it waz first du. Indeed the natural born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it iz hiz own act that brings him into theze straits and difficulties, of owing service to two masters; and it iz unreezonable that, by such voluntary act of hiz own, he should be able at plezure to unloose thoze bands by which he iz connected to hiz natural prince."[147]
I mistake much, however, if the natural born subject would be so muchentangled with hiz straits and difficulties,az lord Coke, Hale and Blackstone, would be, to support their assertions and obviate the absurdities of their reezoning.
It iz astonishing to observe how slowly men get rid of old prejudices and opinions. The feudal ideas of allegiance, which makefidelity in the subject an obligation or grateful return for the protection of the prince, stil prevail, and are made the basis of all modern reezoning on the subject. Such ideas in the dark ages, and in the days of feudal despotism, are not to be wondered at. Every baron waz a tyrant on hiz manor, and az hiz only safety consisted in hiz castle and hiz vassals, it waz necessary to bind hiz subjects to him by oaths and superstition, az wel az by a demand upon their gratitude. But wil our sage writers on government and law, forever think by tradition? Wil they never examin the grounds of receeved opinions? Let me enquire.
What iz the real ground ofallegiance? Iz it notprotection? Not at all. We may just az wel invert the proposition, and say, thatallegianceiz the ground ofprotection. A prince iz the representativ of a nation or state, so that allegiance to him, iz merely allegiance to a state or body politic.[148]According to our ideas, allegiance to a king, and fidelity to a state, are the same thing; for detach a king from all connection with a nation or state, and he becumes a private man, and entitled only to the rights of such. This at leest iz the opinion of anAmerican, whose mind iz not biassed by personal attachments to a sovereign.
What then iz the ground of fidelity to a state? The answer iz eezy; themoral law, which haz for its object thegood of society. This iz the basis of all obligations in a state, whether express or implied; yet writers on this subject hav hardly mentioned it. Blackstone indeed takes notice of an implied, original allegiance, antecedent to any express promis; but seems rather toconsider it az a return for the duties of the sovereign, which he owes before coronation, than az an obligation arising from the very constitution of society.
Taking the moral law or the good of society for the ground of all allegiance, we discuver two species of duties to be performed by every man; themoral duties, which exist at all times and in all places; and certainpolitical duties, required by the municipal laws of eech state. The first are the basis of natural or perpetual allegiance; the last, of local allegiance. The first or moral duties create an obligation upon every man, the moment he iz born, which cannot be cancelled or discharged by any act of an individual, or by any agreement between prince and subject; the last, or political duties, impoze an obligation upon every member of a state or body politic, the moment he steps within its jurisdiction, to submit peaceably to such positiv injunctions of that state, az hav been judged necessary for its welfare.
Now to maintain that an oath of allegiance wil bind a man to perform all the last class of duties, or the positiv duties enjoined by a particular state, and not required by the general laws of society, when the man haz perhaps become a member of another state, three thousand miles distant, iz to defend the wildest notions that can possess any man's brain. Every man iz bound always and in all places todo right, and avoid doing rong; and this with, or without taking an oath of fidelity to any state. This iz implied allegiance, universal and perpetual; and I deny that there iz any other ground of this allegiance, except the universal principles of right and rong.
Should it be said, that a man may bind himselfby oathto perform the positiv or political duties required by a state, altho he may remoov and become a citizen of another state; I answer, this wil involv him in thestraitsanddifficultiesmentioned by Blackstone; for the political duties of the two states may interfere with eech other. The truth iz, a man haz no right to take such an oath, nor haz a state any right to require it.He may swear, when he enters into any kingdom or state, that he wil be a good citizen, and submit to all the laws of the state,while he iz a member of it; and further, that he wil observe the moral law in hiz conduct towards that society, afterhe haz ceesed to be a member of it. Further than this, he haz no right to swear. Az to every duty, not required by the laws of society in general, but only by the municipal laws of a state, a man's allegiance commences when he enters that state; and ceeses the moment he leeves it.[149]The doctrin of a perpetual allegiance iz wholly a feudal idea; inculcated, when every lord waz at war with hiz nabor; and waz compelled by self preservation to attach hiz vassals to himself by oaths, the penalties of perjury and the forfeitures of treezon.
Blackstone says, in the passage already quoted, "that natural allegiance iz a det of gratitude," because the subject iz under the kings protection while an infant. He might just az wel say,protection iz a det of gratitudedu from the prince, because the subject iz born in hiz dominions. On this principle of gratitude, a child iz obliged to obey and serve hiz parent, after he haz left hiz family, and while he livs. This det, according to the same author, cannot be cancelled, butby "concurrence of the legislature."How in the name of reezon, can an act of the legislature dissolv anatural tie? How can itcancel a det of gratitude? Common sense looks with disdain on such week and futile reezoning. But if there iz such a thing az natural and perpetual allegiance, an Englishman, who remoovs to France, cannot take arms to defend France against an invasion from England. Is this agreeable to the laws of nature and society, that a man should not protect himself and hiz property? It wil be said that the man iz within the English king's liegeance, and entitled to hiz protection. But the king cannot protect him; it iz beyond hiz power, and the Englishman iz not obliged to leev France and seek protection in England. Hiz estate and hiz family may be in France, and if he chooses to reside there, it iz hiz unalienable right and duty to defendboth against any invasion whatever. Every war, except a defensiv one, iz a breech of the moral law; but when a natural born subject of England, haz become a citizen of France, he iz subject to the laws of France, and bound to assist, if required, in defending the kingdom against hiz natural prince.