by Professor Revilo P. Oliver

September 1986

Professor R. H. Helmholz has published in "Speculum," LXI (1986), pp. 365-380, what is, I believe, the first study of the enforcement of the laws against usury in England that is based on the records of the ecclesiastical courts that have survived from the Fourteenth, Fifteenth, and early Sixteenth Centuries in some dioceses.

It will be recalled that one of the great Kings of England, Edward I, tried to rid his country of international parasites in 1290, but was prevented from succeeding by Christianity, the Jews' great safeguard. He did run some 16,000 of the bloodsuckers out of his realm, but any Jew who wished to stay, with the exception of the wealthiest Jews, who had made themselves infamous by notorious practice of extortion and fraud, had only to dodge into the nearest church, have himself sprinkled with holy water, and tell a credulous or venal clergyman that he believed all the tales about a Jew-boy named Jesus. No one knows how many Marranos remained to prey on the English, since they covered their tracks by assuming English names and pretending to be White men. (Some of their descendants popped out of the woodwork in the time of Cromwell and boasted of their success in deceiving the simple-minded Anglo-Saxons; others doubtless thought it expedient to continue their masquerade.) Thus, during the period covered by Professor Helmholz's study, the Jews in England, with the exception of some who were tolerated in London and a few port cities under various pretexts, were all disguised as Englishmen, and we cannot tell from the records whether any given usurer was a native of Britain or an alien invader. And conversely, guilt of usury is not a proof of race.

With certain exceptions, usury was prosecuted only in the ecclesiastical courts, since the laws of the kingdom took no cognizance of usury during the lifetime of the usurer, but did provide that at the death of a convicted usurer, his lands, if any, would escheat to the lord of the territory, and his personal property (including money) would belong to the King. Unfortunately, extant records do not show how often the provisions of secular law were applied and enforced.

Strictly speaking, usury was the taking of interest in any amount on a loan, and the church courts prosecuted persons who tried to evade the canon law by such devices as charging a commission or making the borrower purchase some article for more than its normal value. Prosecution could be initiated by the debtor, but was more often begun by the court itself, presumably acting in many cases on information obtained through the confessional. In practice, the courts seem to have disregarded the lending of money at very low rates of interest, since there was no record of prosecution for interest at less than 5.5% and only one instance of prosecution for less than 7.5%. Most of the prosecutions were for 10% or more.

The prosecutions on record affected what we should call the lower and middle classes. If one tries to compute the difference in purchasing power of currency, one can say that in our terms the cases of usury involved loans of less than $15,000. There seems to be no evidence of what was done when large sums were lent. (I think it likely that maritime and other commercial loans were made under terms by which the risk was shared by the lender and thus properly escaped the definition of usury, while loans involving land came under the administrative jurisdiction of the royal government.)

The ecclesiastical courts could enforce their decrees only by excommunication and other religious penalties, including denial of burial in consecrated ground. The court records examined by Professor Helmholz record prosecutions but commonly omit the termination of the case, so we often do not know whether the accused was convicted. The courts did encourage settlement of the case "out of court" by agreement between the parties, e.g., by the lender's refunding of the interest he received, but the terms of such agreements are not recorded.

So far as we can tell from the study, there is no evidence to show how effective were the penalties that the church could impose. In theory, all Christians were obliged to have nothing to do with an excommunicated man, but it is hard to believe that the obligation was very strictly observed in the practice of daily life. And, by the way, as for burial in consecrated ground, it may be noted that a Marrano would prefer secret burial by his confederates.

When the civil courts took concurrent jurisdiction with the ecclesiastical courts over the crime of usury in 1571, English civil law distinguished between the taking of interest at more than 10%, which was subject to quite severe penalties, and of interest at less than 10%, which was punished only by ordering repayment of the interest collected and thus in practice permitted lenders to charge lower rates of interest with impunity if the debtor made no complaint. The ecclesiastical courts continued to have jurisdiction, but seem to have gradually relaxed exercise of it.

I need not remind you that all loans were made in real money, i.e., silver or gold, not intrinsically worthless pieces of paper.

I have tried to summarize for you the essentials of the article in "Speculum," q.v., if you want a fuller account.