Religion and the Rise of Capitalism

a clergy three-quarters of whom, as a result of the enormous transference of ecclesiastical property, were henceforward presented by lay patrons, were not likely to display any excessive independence. But the canon law was nationalized, not abolished; the assumption of most churchmen throughout the sixteenth century was that it was to be administered; and the canon law included the whole body of legislation as to equity in contracts which had been inherited from the Middle Ages. True, it was administered no longer by the clergy acting as the agents of Rome, but by civilians acting under the authority of the Crown. True, after the prohibition of the study of canon law⁠—after the estimable Dr. Layton had “set Dunce in Bocardo” at Oxford⁠—it languished at the universities. True, for the seven years from 1545 to 1552, and again, and on this occasion for good, after 1571, parliamentary legislation expressly sanctioned loans at interest, provided that it did not exceed a statutory maximum. But the convulsion which changed the source of canon law did not, as far as these matters are concerned, alter its scope. Its validity was not the less because it was now enforced in the name, not of the Pope, but of the King.

As Maitland has pointed out,237 there was a moment towards the middle of the century when the civil law was pressing the common law hard. The civil law, as Sir Thomas Smith assured the yet briefless barrister, offered a promising career, since it was practiced in the ecclesiastical courts.238 Though it did not itself forbid usury, it had much to say about it; it was a doctor of the civil law under Elizabeth by whom the most elaborate treatise on the subject was compiled.239 By an argument made familiar by a modern controversy on which lay and ecclesiastical opinion have diverged, it is argued that the laxity of the State does not excuse the consciences of men who are the subjects, not only of the State, but of the Church. “The permission of the Prince,” it was urged, “is no absolution from the authority of the Church. Supposing usury to be unlawfull⁠ ⁠… yet the civil laws permit it, and the Church forbids it. In this case the Canons are to be preferred.⁠ ⁠… By the laws no man is compelled to be an usurer; and therefore he must pay that reverence and obedience which is otherwise due to them that have the rule over them in the conduct of their souls.”240

It was this theory which was held by almost all the ecclesiastical writers who dealt with economic ethics in the sixteenth century. Their view was that, in the words of a pamphleteer, “by the laws of the Church of England⁠ ⁠… usury is simply and generally prohibited.”241 When the lower House of Convocation petitioned the bishops in 1554 for a restoration of their privileges, they urged, among other matters, that “usurers may be punished by the canon lawes as in tymes past has been used.”242 In the abortive scheme for the reorganization of the ecclesiastical jurisdiction drawn up by Cranmer and Foxe, usury was included in the list of offenses with which the ecclesiastical courts were to deal, and, for the guidance of judges in what must often have been somewhat knotty cases, a note was added, explaining that it was not to be taken as including the profits derived from objects which yielded increase by the natural process of growth.243 Archbishop Grindal’s injunctions to the laity of the Province of York (1571) expressly emphasized the duty of presenting to the Ordinary those who lend and demand back more than the principal, whatever the guise under which the transaction may be concealed.244 Bishops’ articles of visitation down to the Civil War required the presentation of uncharitable persons and usurers, together with drunkards, ribalds, swearers and sorcerers.245 The rules to be observed in excommunicating the impenitent promulgated in 1585, the Canons of the Province of Canterbury in 1604, and of the Irish Church in 1634, all included a provision that the usurer should be subjected to ecclesiastical discipline.246

The activity of the ecclesiastical courts had not ceased with the Reformation, and they continued throughout the last half of the century to play an important, if increasingly unpopular, part in the machinery of local government. In addition to enforcing the elementary social obligation of charity, by punishing the man who refused to “pay to the poor men’s box,” or who was “detected for being an uncharitable person and for not giving to the poor and impotent,”247 they dealt also, at least in theory, with those who offended against Christian morality by acts of extortion. The jurisdiction of the Church in these matters was expressly reserved by legislation, and ecclesiastical lawyers, while lamenting the encroachments of the common law courts, continued to claim certain economic misdemeanors as their province. That, in spite of the rising tide of opposition, the references to questions of this kind in articles of visitation were not wholly an affair of common form, is suggested by the protests against the interference of the clergy in matters of business, and by the occasional cases which show that commercial transactions continued to be brought before the ecclesiastical courts. The typical usurer was apt, indeed, to outrage not one, but all, of the decencies of social intercourse. “Thomas Wilkoxe,” complained his fellow burgesses, “is excommunicated, and disquieteth the parish in the time of divine service. He is a horrible usurer, taking 1d. and sometimes 2d. for a shilling by the week. He has been cursed by his own father and mother. For the space of two years he hath not received the Holy Communion, but every Sunday, when the priest is ready to go to the Communion, then he departeth the church for the receiving of his