Usury and the judicial regulation of financial transactions in seventeenth- and eighteenth-century England

doi:10.1017/CBO9780511760938.009

8 - Usury and the judicial regulation of financial transactions in seventeenth- and eighteenth-century England

from PART II - Conceptualising unconscionability in financial transactions

Published online by Cambridge University Press: 06 August 2010

Warren Swain and

Karen Fairweather

Edited by

Mel Kenny ,

James Devenney and

Lorna Fox O'Mahony

Show author details

Mel Kenny: Affiliation:
University of Leicester
James Devenney: Affiliation:
University of Durham
Lorna Fox O'Mahony: Affiliation:
University of Essex

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Summary

The true spirit of usury lies in taking an unjust and unreasonable advantage of their fellow creatures.

The extent to which similar principles applied to loan transactions which fell outside the ambit of the usury laws, under the guise of unconscionability and related doctrines, was a question of great importance from the late seventeenth century.

The usury laws: the changing face of statutory regulation

John Baxton described usury as ‘lending for gaine’, the ‘gaine’ meaning the additional sum paid to the lender above the amount of the loan. His definition pre-dated the seventeenth century. It was derived from the canon law applied by the ecclesiastical courts, which had largely policed these transactions in the Middle Ages. In canon law, usury, any usury, was totally prohibited. Money lending continued unabated but those who wanted to avoid the risk of religious sanction were required to go to the trouble of disguising the true nature of the transaction.

By the late sixteenth century the old consensus was starting to collapse. In Thomas Wilson's A Discourse Upon Usury, published in 1572, a preacher, a lawyer, a merchant and a doctor of civil law debate the merits of usury. In the eyes of the preacher, usurers were little better than common criminals:

I will wyshe some penall lawe of death be made against those usurers, as well as agaynste theeves or murtherers, because their offence hurtheth more universallye and toucheth a greater number.

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Type: Chapter
Information: Unconscionability in European Private Financial Transactions
Protecting the Vulnerable
, pp. 147 - 165

DOI: https://doi.org/10.1017/CBO9780511760938.009 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2010

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