For, in spite of the conflict of jurisdictions, the rising resentment against the ways of ecclesiastical lawyers, and the expanding capitalism of the later Middle Ages, it is evident that commercial cases continued, on occasion at least, to come before the courts christian. Nor, after the middle of the fourteenth century, was their right to try cases of usury contested by the secular authorities. A statute of 1341 enacted that (as laid down long before) the King should have cognizance of usurers dead, and the Church of usurers living. The same reservation of ecclesiastical rights was repeated when the question was taken up a century later under Henry VII, and survived, an antiquated piece of common form, even into the age of lusty capitalism under Elizabeth and James I.86
That ecclesiastical authorities had much opportunity of enforcing the canon law in connection with money-lending is improbable. It was naturally in the commercial towns that cases of the kind most frequently arose, and the towns did not look with favor on the interference of churchmen in matters of business. In London, collisions between the courts of the Official, the Mayor and the King were frequent in the early thirteenth century. Men took proceedings before the first, it seems, when a speedy decision was desired, or when their case was of a kind which secular courts were not likely to regard with favor. Thus craftsmen, to give one curious example out of many, were evidently using the courts christian as a means of giving effect to trade union regulations, which were more likely to be punished than enforced by the mayor and aldermen, by the simple device of imposing an oath and proceeding against those who broke it for breach of faith. The smiths, for instance, made a “confederacy,” supported by an oath, with the object, as they declared, of putting down night-work, but, as was alleged in court, of preventing any but members of their organization from working at the trade, and summoned blacklegs before the ecclesiastical courts. The spurriers forbade anyone to work between sunset and sunrise, and haled an offending journeyman before the archdeacon, with the result that “the said Richard, after being three times warned by the Official, had been expelled from the Church and excommunicated, until he would swear to keep the ordinance.”87
Even at a later period the glimpses which we catch of the activities of the ecclesiastical jurisdiction are enough to show that it was not wholly a dead letter. Priests accused of usury undergo correction at the hands of their bishops.88 Petitioners appeal for redress to the Court of Chancery on the ground that they have failed to secure justice in the courts of bishops or archdeacons, where actions on cases of debts or usury have been begun before “spiritual men.”89 The records of ecclesiastical courts show that, though sometimes commercial questions were dismissed as belonging to the secular courts, cases of breach of contract and usury continued, nevertheless, to be settled by them.90 The disreputable family of Marcroft—William the father was a common usurer, Alice his daughter baked bread at Pentecost, and Edward his son made a shirt on All Saints’ Day—is punished by the ecclesiastical court of Whalley as it deserves.91 At Ripon a usurer and his victim are induced to settle the case out of court.92 The Commissary of London cites Thomas Hall super crimine usurariæ pravitatis, on the ground that, having advanced four shillings on the security of Thomas Foster’s belt, he had demanded twelve pence over and above the principal, and suspends him when he does not appear in court.93 Nor did business of this kind cease with the Reformation. Cases of usury were being heard by ecclesiastical courts under Elizabeth, and even in a great commercial center like the City of London it was still possible in the reign of James I for the Bishop’s Commissary to be trying tradesmen for “lending upon pawnes for an excessive gain.”94
It was not only by legal penalties, however, that an attempt was made to raise a defensive barrier against the exactions of the moneylender. From a very early date there was a school of opinion which held that, in view of the various stratagems by which usurious contracts could be “colored,” direct prohibition was almost necessarily impotent, and which favored the policy of providing facilities for borrowing on more reasonable terms than could be obtained from the moneylender. Ecclesiastics try, in fact, to turn the flank of the usurer by establishing institutions where the poor can raise capital cheaply. Parishes, religious fraternities, gilds, hospitals and perhaps monasteries lend corn, cattle and money.95 In England, bishops are organizing such loans with papal approval in the middle of the thirteenth century,96 and two centuries later, about 1462, the Franciscans lead the movement for the creation of Monts de Piété, which, starting in Italy, spread by the first half of the sixteenth century to France, Germany, and the Low Countries, and, though never taken up in England—for the Reformation intervened—supplied a topic of frequent comment and eulogy to English writers on economic ethics.97 The canon law on the subject of money-lending underwent a
