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THIS work is designed as a supplement, not a substitute, to the works of Powell, Comyn and Ord. The numerous decisions since the publication of these books have rendered something of this kind convenient if not necessary; and the total neglect of those competent to such an undertaking, would seem to have left the field fairly open to "another adventurer." There is no American work on usury. Comyn on usury, first appeared in 1817; and, from its systematic arrangement and critical accuracy, has ever been regarded of standard authority. But the ingenuity of lenders in devising new schemes for obtaining exorbitant profits, without incurring any risk of loss, has called forth repeated adjudications upon new distinctions, and the ever-varying tone of popular prejudice has influenced not only legislators and juries, but even judges, until the usury laws of the different states and the decisions thereon have become curiously checkered and whimsically dovetailed. In collecting the American cases, it was intended to adopt Comyn's work as a model, but in all the practical details it was found utterly impossible, from the want of uniformity in the respective states. With the exception of the different rates of interest, however, what is usury in one state is usury in another; the difference is in the consequence of it. Such general principles, therefore, as could be traced
to any common source, have been arranged upon Comyn's plan. The punishment of usury by informations qui tam, has been taken entirely from his work, and the few sub-sequent decisions on such actions added to that chapter. After which the statutes of the several states now in force have been copied, and the decisions under them from the respective State Reporters follow the statutes.
Mr. Kelly, of London, in 1836 published a work on usury; but the design of that gentleman appeared to be rather an essay on the policy of the law, than an attempt to illustrate and explain it; as he added nothing to the works of his predecessors. It might therefore be expected that something should be said in reply to the continued attempts of essayists to show the inutility of statutes against usury. But this volume emanates from no politician. The best argument in favor of usury laws is perhaps the gigantic efforts of usurers to repeal them. The more numerous class of borrowers do not feel their inconvenience; and the experience of the last half century, to say nothing of antiquity, conclusively shows, that however they may be varied by temporary excitement, they can never be permanently repealed. It will be seen that there is no state in the union, with perhaps the exception of the Plymouth colony of Massachusetts, that has not attempted to do without them, and signally failed. Some do indeed question their moral tendency, and to such, no argument will be so effective as the payment by themselves of exorbitant interest. It was this that brought the legislators of Alabama to their better judgment in 1819. It was this that introduced Poindexter's code in Mississippi in 1822, and aroused the interior of New York in 1837. And it will be this that will cause to be re-enacted severer penalties after any future abolition of the laws against usury. But there is still another class of men, who, however much they may believe in the necessity of such laws, feel unwilling to plead the statute after
having promised to pay the extra interest. Are they not under a prior engagement to vindicate the law? Do they feel as much repugnance in a beggarly resort to the bankrupt or insolvent acts to be discharged from legal creditors after having wasted their substance in the payment of illegal demands? The position cannot be too broadly laid down, that he who successively pays usury must eventually fail. And the pretended honesty of those moralists who would refuse to plead usury because they have promised to pay it, is a fit conduit for the unauthorized transfer of honest men's property to the payment of other men's illegal claims. There can be no more money to loan at one rate of interest than another. Capital is always avaricious, and those who possess it, can be compelled to employ it, if others without it would but let them alone. Like the capitalists of Europe, they will lend at legal interest, in preference to consuming their substance in idle expenditure.
In the following sheets I have obtruded but few observations of my own, and those, if not always correct, are at least supported by authority which is in most cases cited. I do not aspire to have shown what the law is, but where it may be found. And if an inquirer shall by this volume find his labor lessened-if, for any particular here touched upon, he have to examine a dozen volumes instead of a hundred, he may consistently excuse the faults, and forbear to condemn the undertaking.