Page:Decline and Fall of the Roman Empire vol 4 (1897).djvu/519

Rh pledge has been refined into the invisible rights of a mortgage or hypotheca; and the agreement of sale, for a certain price, imputes, from that moment, the chances of gain or loss to the account of the purchaser. It may be fairly supposed that every man will obey the dictates of his interest; and, if he accepts the benefit, he is obliged to sustain the expense, of the transaction. In this boundless subject, the historian will observe the location of land and money, the rent of the one and the interest of the other, as they materially affect the prosperity of agriculture and commerce. The landlord was often obliged to advance the stock and instruments of husbandry, and to content himself with a partition of the fruits. If the feeble tenant was oppressed by accident, contagion, or hostile violence, he claimed a proportionable relief from the equity of the laws; five years were the customary term, and no solid or costly improvements could be expected from a farmer who, at each moment, might be ejected by the sale of the estate. Usury, the inveterate grievance of the city, had been discouraged by the Twelve Tables, and abolished by the clamours of the people. It was revived by their wants and idleness, tolerated by the discretion of the prætors, and finally determined by the Code of Justinian. Persons of illustrious rank were confined to the moderate profit

167 The covenants of rent are defined in the Pandects (l. xix.) and the Code (l. iv. tit. lxv.). The quinquennium, or term of five years, appears to have been a custom rather than a law; but in France all leases of land were determined in nine years. This limitation was removed only in the year 1775 (Encyclopédie Méthodique, tom. i. de la Jurisprudence, p. 668, 669); and I am sorry to observe that it yet prevails in the beauteous and happy country where I am permitted to reside.

168 I might implicitly acquiesce in the sense and learning of the three books of G. Noodt, de fœnore et usuris (Opp. tom. i. p. 175-268). The interpretation of the asses or centesimae usurae at twelve, the unciariae at one per cent, is maintained by the best critics and civilians: Noodt (l. ii. c. 2, p. 207), Gravina (Opp. p. 205, &c. 210), Heineccius (Antiquitat. ad Institut. l. iii. tit. xv.), Montesquieu (Esprit des Loix, l. xxii. c. 22, tom. ii. p. 36. Défense de l'Esprit des Loix, tom. iii. p. 478, &c.), and above all John Frederic Gronovius (de Pecuniâ Veteri, l. iii. c. 13, p. 213-227 and his three Antexegeses, p. 455-655), the founder, or at least the champion, of this probable opinion; which is however perplexed with some difficulties. [The centesima usura which subsisted from the later republic to Justinian was 12 per cent, (one hundredth of the capital per month). It is still a question whether the foenus unciarium of the xii. Tables was the same (12 per cent.), or 1/12 of the capital.]

169 Primo xii. tabulis sanctitum est nequis unciario fœnore amplius exerceret (Tacit. Annal. vi. 16). Pour peu (says Montesquieu, Esprit des Loix, l. xxii. c. 22) qu'on soil versé dans l'histoire de Rome, on verra qu'une pareille loi ne devoit pas être l'ouvrage des decemvirs. Was Tacitus ignorant — or stupid? But the wiser and more virtuous patricians might sacrifice their avarice to their ambition, and might attempt to check the odious practice by such interest as no lender would accept, and such penalties as no debtor would incur.