high as twelve per cent., but the outcry against it was such, that it was reduced to the smallest allowance (one per cent. and half of one per cent.) and at last, finally abolished; but as the rate was gradually diminishing, the evils to be prevented, were found continually increasing, till at length, on its entire abolition, the most frightful usury took place. As long as the wants of the parties compel, so long they will violate the law, whether any, or a given rate be allowed, and as long as they violate the law, the evil attempted to be remedied, will be aggravated. The law is only harmless, when it is null. Now a law of this sort will be most likely to be observed by the more conscientious of the citizens. None but the most rapacious will incur the risk. The poor, therefore, must either suffer from the want of the loan, general competition being prevented by the law, as all will not loan at a loss; or else fall into the hands of the most avaricious and oppressive, where if no law existed, money would be obtained at a lower rate, and of honest men. The poor, in case the loan is withheld, or granted at an exorbitant rate, those for whose especial benefit it is made, are those who suffer from its effects most severely; and were it rightly named, it would be called a law for the oppression of the poor and the impoverishment of the country. Such are the effects of this quack mode of 'grinding the teeth of usury that it bite not too much.'

If, when the law is evaded, the borrower, taking advantage of the law, should cheat the lender out of his debt, what is this transaction better than swindling, and that too of the deepest dye? The borrower first tempts to a violation of the law; a violation at his instance and request, and for his benefit, and then punishes the lender for yielding to his solicitations. It would be hardly too much to say that such conduct partakes of all the atrocity of theft, coupled with the crimes of treachery and ingratitude, and without the palliation of want or poverty. The courts, in certain cases, say much about the hardship of the rules of the law in the particular instances before them, but in no case did it seem to occur to them that the loss of debt and cost, and the further payment of a penalty equal in amount to the debt, entitled the sufferer even to that degree of commiseration which 'hard cases' occasionally receive at their hands. So far indeed are they from even intimating that such a course would be dis

honest and unjust, that they even make it a matter of conscience to be left to the decision of some erudite doctor dubitantium, whether, under any the most favorable circumstances, it would be right for the defendant to pay.' 'If,' say they, 'we suppose a case, in which the interest exceeded by a very little the lawful rate of interest, and that the borrower was conscious the advantage to himself and the inconvenience to the lender was equal to the excess, and therefore felt himself bound in conscience to pay the debt, he certainly might, and perhaps as an honest man

1 15 Mass. 103. So says the court when the usurer is enforcing payment of his debt. But the responses of the judicial, like those of all other oracles, are sometimes contradictory. A doubtful question is it right to pay a note tainted with usury? but suppose a note paid, and the borrower repenting himself of the evil done, should wish to recall his money, to rescind his payment; what then saith the oracle? If the contract be fulfilled, the money paid, 'neither principal nor interest can be recovered, but only the excess, for where a man pays what in conscience he ought to pay, though he was not compelled, either in law or equity so to do, neither law nor equity will assist him in an attempt to retract such payment.' It seems from this, that such payment is one that, in good conscience, ought to be made. It further appears that such are our legal institutions, that neither law nor equity compel a man to do what in equity he ought to do; but that the highest praise they merit is that of not relieving a man who has been so rash and unfortunate as to comply with engagements which in conscience' he ought to fulfil. If he is unwilling, they never use compulsion.

The laws annul all contracts tainted with usury. Remembering this, it would be difficult to show why the contract should be affirmed in this case, and annulled in case the lender should attempt to enforce payment. If the contract be void, payments under it should be likewise void. By refusing their aid, the judges repeal the usury law in the only case where the illegal contract is actually carried into effect, where the evil, which the legislature wishes to prevent, is actually consummated. When the note is avoided by the plea of usury, the designs of the legislature are carried into effect; when paid, the evil dreaded is done.

Equally difficult, on any ordinary principles of construction, would it be to show, if a contract be void in toto, upon what grounds the excess above lawful interest can be recovered -a construction which renders it only partially void. No reasoning can be urged to show it void for the excess, which does not equally show it void for the whole.

In equity* they absolutely refuse to enforce the law. However plain, and however extravagant may be the usury, they afford no aid, unless after the penalties are agreed to be waived, and then they only relieve the debtor from the unlawful interest, because equity and good conscience does not permit the law to be enforced; or, according to one of their maxims, he who wants equity, must do equity; equity in this case consisting in contravening the will of the legislature. From these examples it will be perceived that the temple of Justice might well deserve the name of the tem ple of Janus.

Ord., 111-115

he ought to waive this objection.' So cautious and guarded are they, that it is at last left a questio vixata for tender consciences whether a pure and conscientious debtor would be excusable in paying what is due. That he would be right in withholding it, seems to be considered as not admitting a doubt.

But,' 'forasmuch as all usury, being forbidden by the law of God, is sin and detestable,' it may not be amiss to notice, for a moment, the penalties by which this law is attempted to be enforced, and the skill and judgment with which they are applied to effect the purposes intended. In past ages, the crime of usury was punished with exemplary severity. By the civil law, the punishment was double that of theft, theft being punished by a forfeiture of double the value of the goods stolen, but in usury the criminal was punished in a quadruple penalty. Still more severe was the French law. For the first time, the usurer was punished by a public and ignominious acknowledgment of his offence, and was banished. His second offence was capital, and he was to be hanged. By the common law, the punishment was severe, being crimen duplex; 'the criminal was disabled from making a will, his body not to be buried among the bodies of other Christian people in any church or churchyard, until restitution be tendered,' to say nothing of the terrors of excommunication; having his goods and lands forfeited to the king, and his body to remain in prison according to the king's good pleasure, and perhaps some other similar gentle remedies not worth recording. The laws apply more particularly to the crime of manifest usury, which is so called, when it is manifested; a definition of the offence so lucid and perspicuous, that the wayfaring man, though a fool, can understand it; and what is very rare, a definition in which all authorities concur in uniting. But the penalties in England and in other countries have been gradually lessened; but still, wherever they exist, to the extent of their operation, they are productive of evil. In this country, the more common case is, that all contracts are declared null and void, the usurer being subject, besides loss of the debt, to penalties varying in amount in the different states; while in all, the borrower is entirely exempt from any penalty. That the punishments are sufficiently severe, 1 13 Eliz. ch. 8, S. 5, Stat. against usury.

2 Ord. usury passim.

no one will doubt. It remains to observe with how much discretion they are applied. As the object of the law is the prevention of crime, the escape of the guilty and the punishment of the innocent, are equally to be avoided. In examining this law, it will, however, be found, that both evils are provided for with sedulous attention, and the happening rendered certain and secure, as if those results were to the highest desirable. To constitute the crime of usury, there must obviously be two individuals concerned, the borrower and lender; both, so far as knowledge and intention are concerned, knowingly and wilfully violating the law. It is by their concurrence alone that a violation takes place. Let us look at the process. By the terms of the supposition, a violation of the law supposed, the capitalist, not being authorized by law to receive what he views as an adequate remuneration for the use of his capital, is not disposed to lend; and if he violates the law, will not run the risk consequent thereupon, without an adequate and sufficient compensation. The borrower, conceiving the value of the capital to him to exceed the legal rate, offers, in addition to the legal rate, a certain premium, no matter what, but still equal to what, correctly or not, he conceives the benefit conferred by the loan to violate the law, which is acceded to on the part of the borrower, and the offence consummated. The lender is bribed by the borrower to violate the law. Could the offence have taken place without the agency of the borrower, and if not, is he not particeps criminis? But say the court, the borrower is poor, and the lender should not have taken advantage of his poverty. And suppose he should not, still how does that help the argument? The usurer is admitted to be guilty, but his guilt is no excuse for the borrower. Poverty constitutes no defence to a violation of the law. The borrower is certainly guilty in attempting to relieve his poverty, by a violation of the law, and in requesting and soliciting others to aid him by this violation. Strange is that policy which exempts a party actually guilty — nay, does more, encourages and rewards him for a violation of the law. If it be desirable to prevent usury, it would seem desirable to prevent all individuals from applying to obtain money on such forbidden terms; but instead of this, the whole current of the law is to induce as many as possible to borrow on usurious terms, by offering strong inducements to do it. But the courts say, that

the borrower is not particeps criminis, because' it is the very hardship that he is obliged to submit to, that constitutes the crime.' It should seem that the usurer cannot by force of arms compel a man to give ten or twenty per cent., the compulsion, in the case of the borrower, is ab extra, from his necessities, not from the lender, who only proposes the terms he will accept, or accedes to those offered; and if the terms offered are acceded to, it only shows that his necessities compel it. But it would be difficult, perhaps, to show, why the necessities, the compulsion ab extra, which are equally the causes of theft and robbery, as of usury, should in one case be a valid excuse, and in the other not. It seems suicidal policy in the law to encourage as many as possible to violate it in the character of borrowers, while all those who lend are severely punished. If prevention were the object, the natural and obvious course would be, to deter alike, those who apply, as well as those who yield to their applications-borrowers as well as lenders.

Still more objectionable is the provision by which all securities in which usurious interest is reserved, are made void, without the least reference to the question whether the individual, who may thus suffer, was a party to the contract or conusant of any lurking defect which might annul it. In this case the innocent endorsee is exposed to a loss neither to be foreseen or prevented. The effect of this rule is to impose the same punishment in the shape of pecuniary loss on the usurer, and on him who is perfectly ignorant and innocent of all usury, and not merely to permit this, but even to pursue, preappoint, and preordain this improper and misplaced punishment, for the individual, of whom the only knowledge the legislature has, is that neither in thought, word, nor deed, has he in any way disobeyed their commands. It enacts that he, of whose criminality there is not merely no proof, but of whose innocence there is absolute conviction, shall suffer the punishment of guilt. It does not even place the innocent and the guilty on equal grounds, but rather prefers

1 2 Powell on Contracts, 94.

2 This provision has been repealed in England within a few years. It still holds its place in Maine. Whether in Massachusetts or the other states I have not the means of knowing. I have taken for examination the statutes of Maine, in which all the abominations on the subject are concentrated. The ne plus ultra of bad and improvident legislation. The force of evil could no farther go.