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capacity as a member of parliament in my case.
this very person, insensible to the rank he maintains,
or should maintain, in this country, abandoning the
gravity of his character as a member of the senate,
and losing sight of the sanctity of his station, both in
this house and out of it, even in the very act of deliv-
ering a judicial sentence, descends to minute and
mean allusions to former politics, comes here stored
with the intrigues of past times, and instead of the
venerable language of a good judge and a great law-
yer, attempts to entertain the house by quoting, or by
misquoting, words supposed to have been spoken by
me in the heat of former debates, and the violence of
contending parties, when my noble friend and I op-
posed each other. This demure gentleman, sir; this |
great lawyer; this judge of law and equity and the
constitution, enlightens this subject, delights and
instructs his hearers, by reviving the interesting in-
telligence that when I had the honor of first sitting in
this house for Midhurst, I was not full twenty-one
years of age, and all this he does for the honorable
purpose of sanctifying the high bailiff of Westminster,
and defrauding the electors of their representation in
this house." Fox's followers satirized Kenyon in the
"Criticisms on the Rolliad," which, named after
Rolle, the obnoxious member from Devon, they dedi-
cated to Kenyon, with a caricatured half-length por-
trait of him on the title page, representing him like a
lion demi-rampant, with a roll of parchment between
his paws.
After praising him for voting at the
Westminster election as the delegate of his coach-
horses (he lived in Lincoln's Inn Fields, but voted in
right of some stables), the wits of that wicked mis-
cellany sum up his parliamentary misdeeds in the
following caustic satire:

'How shall the neighing kind thy deeds requite,
Great Yahoo champion of the Hounhuhm's sight?
O, may they gentle pacing o'er the stones,
With no rude shock annoy thy battered bones;
But when a statesman in St. Stephen's walls,
Thy country claims thee, and the treasury calls,
To pour thy splendid bile in bitter tide

On hardened sinners who with Fox divide, Then may they, rattling on in jumbling trot, With rage and jolting, make thee doubly hot, Fire thy Welsh blood, inflamed with zeal and leeks, And kindle the red terrors of thy cheeks, Till all thy gathered wrath in furious fit On Rigby bursts-unless he votes with Pitt.' Kenyon's decrees as master of the rolls were sometimes overruled, from his pedantic adherence to precedents and a rigid construction, but his fidelity and industry were without parallel.

In 1788 he was ennobled, and on Mansfield's retirement created chief justice of England. In this position his treatment of his associates was cynical, overbearing and contemptuous. Impatient of contradiction, he regarded any dissent from his opinion (which rarely occurred) as a personal affront. He spoke unreservedly of his predecessors; wondered that Holt should descend to petty quibbles to overturn law and justice, and accused Mansfield of talking loosely. In one case, where there was a difference of opinion in the court, he thus went on: "If the present action could not be supported, he had now for twelve years been deceiving the people of his country. Was he now, when from years, perhaps, the progress of his intellect had been retrograde, to unsay it? Where could he go to hide his head, if this should now be recorded otherwise? What could he say to

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the people of his country?" And when his associates overruled him: "Good God! what injustice have I hitherto been doing!"

His treatment of the bar was even worse. To all, save Erskine, his manner seems to have been very offensive. To Law, who had unsuccessfully moved for a new trial, he sneered, "Well, sir, you have aired your brief once more." To Baldwin, who begged him, on the trial of a disputed account, to observe the distinction between two bills, he replied: "If you will give me leave, I think I have just sense enough to comprehend this bill." Complaint being made against Lawless, an honorable attorney, of some imputed misconduct, Kenyon, on the ex parte application, after granting the rule to show cause, added, "And let Mr. Lawless be suspended from practicing until the rule is disposed of," "My lord," exclaimed the attorney, in deep agitation, “I entreat you to recall that judgment; the charge is wholly unfounded; suspension will lead to my ruin; I have eighty causes now in my office." "So much the worse for your clients who have employed such a man!” was the reply of this ermined brute. The rule was eventually discharged, but the attorney died of a broken heart. To abolish sham pleas, Kenyon directed attorneys to attend the court, and disclose the reasons for their instructions.

Once in a while Kenyon met his match, and quailed. On the famous trial of Fox against his former companion Horne Tooke, the defendant, pleading his own case, started off "with informing the jury that there were only three efficient and necessary parties — the plaintiff, himself, and you, gentlemen of the jury. The judge and the crier of the court attend alike in their respective situations, and they are paid by us for their attendance; we pay them well; they are hired to be assistants and reporters, but they are not, and they never were, intended to be controllers of our conduct." On being interrupted by the judge, Tooke said: "Sir, if you please, we will settle this question between us now in the outset, that I may not be liable to any more interruptions from you." He then defended himself in his course, concluding, "At my peril I shall proceed, and expect to meet with no further interruption from your lordship." He was not interrupted again.

In the same speech Tooke made some observations on the source of the judicial tenure, which I commend to the attention of those who are favorable to the selection of judges by appointment: "I do not believe the dependence of the judges on the crown was so great formerly as at present. I believe the judges then were less dependent on the crown and more dependent on the people than they are at this hour. The judges then sat on the bench, knowing that they might be turned down again to plead as common advocates at the bar; and indeed it was no unusual thing in those days to see a counsel at the bar brow-beaten and bullied by a chief justice on the bench, who in a short time after was to change places with the counsel, and to receive himself the same treatment in his turn; and character and reputation were of more consequence to the judges then than they are now. They are now completely and forever

independent of the people, and have every thing to hope for for themselves and their families from the crown." I do not see how any republican, after reading the lives of such men as Eldon and Ellenborough, can advocate the choice of judges by appointment. A perusal of such biographies must convince one that even the wisest and purest men are safely intrusted with only a measured degree of irresponsible power.

As an example of Kenyon's intemperance toward suitors, I may cite General Gunning's case, in which he told the jury that the defendant Gunning was an abominable, hoary, degraded creature."

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Kenyon's morality was of the loftiest but narrowest kind. He encouraged actions of crim. con., and under his rule verdicts of £5,000 and £10,000 were not unusual. He resolutely set his face against gambling, and threatened to prosecute those of the nobility who indulged in it. "They think they are too great for the law," said this amiable judge; "though they should be the first ladies in the land, they shall certainly exhibit themselves on the pillory." Gillray published a caricature, entitled the "Exaltation of Faro's Daughters," in which Ladies Buckinghamshire and Archer are represented side by side in the pillory, upon which is a placard, inscribed "Cure for Gambling, published by Lord Kenyon in the Court of King's Bench, on May 9th, 1796." An imitation of this print appeared shortly after, entitled "Cocking the Greeks," in which the same ladies were similarly exposed, the short and plump Lady Buckinghamshire being depicted as obliged to stand tip-toe on her own faro-bank box to raise her neck to her taller companion's level. Lord Kenyon, in the character of public crier, ringing his bell, proclaims, "Oh yes! oh yes! this is to give notice that several silly women, in the parishes of St. Giles, St. James, and St. George, have caused much uneasiness and distress in families, by keeping bad houses, late hours, and by shuffling and cutting have obtained divers valuable articles; whoever will bring before me," etc. His efforts to abolish the crime of duelling were more dignified and commendable. He also punished the libelers with a vigorous lash. His utter want of humor was amusingly evinced in the libel case of Lord Lonsdale. The libel complained of was as follows: "The printers are much perplexed about the likeness of the devil. To obviate this difficulty concerning his infernal majesty, the humorous Peter Pindar has recommended to his friend Opie the countenance of Lord Lonsdale." Erskine prefaced his argument for the defense by remarking that the writer made no malicious insinuation, for he did not recommend his lordship to be painted with horns. Kenyon hastily interrupted him: "The tongue of malice has never said that." It is unnecessary to follow him in his oppressive rulings of the law in these cases, to aid the cause of tyranny and the suppression of free speech.

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they were disappointed in that " the right to leave their money as they please -"the great and main pursuit of men in society was disappointed." "Why do you mention his spit," said Jekyll, "when you know nothing turns upon that!" In relation to his want of hospitality, the same bitter wag said: "It is Lent all the year round in his kitchen, and passion week in his parlor." His penuriousness and his bad Latin were hit off by Ellenborough. After Kenyon's death, a hatchment was put on his house, with the motto painted by mistake, Mors janua vita. Eldon insisted that Kenyon so ordered it to save the extra expense of the final dipthong. In the house of lords he talked about flagrante bello, for pendente bello. He was continually lugging in classical quotations without regard to their appositeness, or care or knowledge of their correctness. When he wished to express the idea stare decisis, he would say stare super antiquas vias. Another favorite was melius est petere fontes quam sectari rivos. He would inform the bar that "the court will take time to consider this case 'propter difficultatem.'” "Go to chancery," said he to an importunate suitor, "abi in malem rem.” "Taffy," said Thurlow (he always called him Taffy), "when did you first think the court of chancery was such a mala res?' I remember that you made a very good thing of it." To illustrate the conclusiveness of some fact, he said: "It is as plain as the noses on your faces — 'latet anguis in herba.'” In "Westminster Hall," a miscellany of legal anecdote, he is scarcely caricatured when represented as saying to a jury: "Having thus discharged your consciences, gentlemen, you may retire to your homes in. peace, with the delightful consciousness of having performed your duties well, and may lay your heads upon your pillows and say, ' aut Cæsar aut nullus.'"

His choice of English was hardly more judicious, and mixed metaphors disfigured his speech. For instance: "The allegation is as far from the truth as old Bolerium from the Northern Main,' a line I have heard or met with Gods know wheer" -(his mode of pronouncing where). "This is the last hair in the tail of procrastination." "If a individual can break down any of those safeguards, which the constitution has so wisely and so cautiously erected, by poisoning the mind of the jury when they are called upon to decide, he will stab the administration of justice in its most vital parts." The estimate which his contemporaries put on his learning is evidenced by Coleridge's apochryphal story that he referred to the emperor Julian as "so celebrated for every christian virtue that he was called Julian the Apostle!" Add to this that his elocution was extremely ungraceful and indistinct, and his attire slovenly and mean, and we think he must have been a pretty figure for chief justice of England!

What, then, was the secret of the success of this man, set to succeed the learned, the courtly, the persuasive Mansfield? In a word, it was this; he knew the law, and honestly and fearlessly administered it. When Erskine and Mingay were in high debate, he settled the controversy in his own rough way: "This is a contest, gentlemen, for victory, and not for justice; but I have made up my mind and will not be moved from it, though assailed by rudeness on the

one hand and flattery on the other." This was the key-note of his entire course, He never missed attending church in twenty-six years. He was an uxorious husband and a fond father. He revered the jury system almost to adulation. These last three traits were sufficient to endear him to the British public, even if he had not been an accomplished lawyer. I have dwelt on his foibles and short comings because they are not found in the books. His learning adorns every page of the reports, and has left the marks of its forming hand on a vast quantity of our law.

ON USURY.

(Concluded from page 431.)

As to usury, in parties procuring loans, it may be said that, whether a bonus or premium is in the nature of a gift or promise at the time of the transaction, is a question of fact; if the undertaking assumes distinctness enough to become a contract for additional interest, the penalties of the usury law would attach. In New York city a very large business is done by brokers in procuring loans of money, and the question often arises, what transactions are usurious? It is clear that if the borrower pays a broker, or any other person, a commission for his services, in effecting a loan, in addition to paying lawful interest, it does not render the loan usurious: provided, the broker or the persons acts as agent merely, and is not in fact the person making the loan, and the lender receives no part of the commission. Condit v. Baldwin, 21 N. Y. 219. On the other hand, if the loan was in fact made by the person pretending to act as broker, his receiving a commission beyond simple interest would constitute usury.

It is abundantly sustained by Prof. Parsons, in his work on Contracts, and by decisions of this state and others, that the lender, whether banker or broker, may charge, in addition to the discount, a reasonable sum for his trouble and services in procuring the loan. And this principle or rule is not confined to bankers and brokers, but is extended to all cases in which there may be such services as are fairly entitled to compensation, although the lender be neither banker or broker, nor engaged in trade, and lends his own money. Nor, if it be in words and form usurious, will it be held so, if in substance and in fact it is entirely legal. And all these questions are for the jury to determine, who must judge of the intention of the parties, which lies at the foundation of the inquiry, from all the evidence and circumstances. The ordinary discount of a bank, although it take in fact something more than lawful interest, is held not usurious.

In the case of Stores v. Coe, Judge WOODRUFF says: "The lender, when he claims for extra trouble, must show the trouble and expense particularly, and then he may recover. If there has been a bona fide sacrifice of time, money or property, for the benefit of the borrower, or for his accommodation, he may recover an extra premium, and it will not be usury; and as to what is a reasonable commission or compensation cannot be gathered from reported cases, but must, of course, be a matter of proof, 11 Barb, 80.

The most recent and controlling case, perhaps, on this question is the case of Thurston v. Cornell, 38 N. Y. 281; therein it was held that, where a party is solicited to make a loan, and, to procure the means of doing so, spends time and incurs trouble and expense in collecting the same from others, and does this at the request of the borrower, and upon his agreement to pay for such services and expenses, the transaction is not usurions.

And the amount of the commission is of no importance, except so far as it may bear upon the question of fact, whether there was an usurious intent. So, also, held in the case of Smith v. Marvin, 27 N. Y. 137.

In a case which we tried at the January circuit, 1870 (Lange v. Hempstead), where our client sued to recover a large sum, being the amount of several loans, the defendant set up usury. The case turned principally upon the questions whether the amounts received by the plaintiff, or agreed to be paid by the defendant, over the sums loaned, were agreed to be paid as extra interest, or for trouble and expense in getting the money to loan.

The court charged the jury that they were to judge of those facts, and decide from all the circumstances in the case, and that if the sums agreed to be paid were intended as for the trouble and expense in getting the moneys, there could be no usury; and the jury returned a verdict for the plaintiff.

In determining the question of usury each particular loan must stand distinct and separate, and must be sustained or fall by itself, and cannot ordinarily be varied or modified by extrinsic circumstances. Thus, no evidence of prior loans is admissible to prove usury against the loans in suit, unless they be connected, and in some way be a part of the same transaction. This view is well established in the court of appeals case of Catlin v. Gunter, 11 N. Y., 368; also, it is so laid down in the case of Eagle Bank of Rochester v. Rigney, 33 N. Y., 613,

If a party guarantee or indorse paper for two months at two and one-half per cent, it is not usurious (where there is no loan), for a man may lend or sell his credit as well as goods and lands, dealing fairly, at any price he can get. This principle is fully sustained in the cases of Reed v. Smith, 9 Cowen R., 647, and 4 Denio, 264.

If A loan money to B on simple interest, and on paying the same B expresses gratitude by a gift to A, either of money or goods, this would not be usurious. But, if it be given in accordance with a previous promise, usury would attach.

The best authorities recognize the principle that none but parties or privies to an usurious contract can take advantage of it: and to avoid a security it must be shown that the agreement was usurious from its origin or inception. Nichols v. Fearson, 7 Peters R., 103; 8 Mass., 101. Usury, though commonly considered an unconscionable defense, is still a legal one, and if proved clearly, the courts are bound to sustain it; if impolitic (as we shall endeavor to show), the legislature alone can annul or repeal it.

It is a defense which is not encouraged by the courts in New York state; and by the laws of 1850

neither a corporation nor a receiver of one can maintain an action to recover back usurious premiums paid by it.

As I have already indicated, the courts of New York do not encourage the defense of usury; in fact they are prone to look upon it with disfavor, and to hold the party who sets it up to strictest proof.

The technical, honorable and astute Judge LOTT, in delivering the opinion of the court in the case of Valentine v. Conner, 40 N. Y., 249, says: "It must be considered the settled rule of law in this state that the onus is upon the party seeking to avoid an agreement as usurious, not merely to establish an usurious intent, but to prove the facts from which that intent is to be deduced." Also see 32 N. Y., 605.

And the able Judge BROWN, in commenting upon the statute of usury (passed 1837), in the renowned case of Curtis v Leavitt, 15 N. Y., 151, observes: "It is in fact a barbarous act, unworthy of the age and country where it is found, for it abrogates the just and equitable maxim that a plaintiff, to entitle himself to equity, must do equity, and required the chancery courts to lend their aid to enforce a penalty or forfeiture."

Although the sentiment expressed by Judge BROWN is positive and strong, and may seem to go rather far, yet the judges of our state, we are led to believe, are prone to view the law in a similar aspect.

As to the mode of pleading usury, we may observe that, where usury is set up as a defense, the usurious contract should be so pleaded that it may appear what rate or amount of interest was taken or secured, and on what sum or sums, and for what time; and the answer should show a corrupt intent.

When these facts appear from the terms of the answer, nothing further is necessary to make it sufficiently definite.

If the answer avers that the plaintiff discounted the drafts (for example), sued on at an usurious rate of interest, contrary to the statute, and then specifies the amount of interest taken, this, though it may or may not be an insufficient averment of a corrupt intent, is not so palpably defective in this respect as to authorize a judgment for the plaintiff for frivolousness. It was thus substantially held in the recent case of The National Bank of the Metropolis v. Orenth, 48 Barb.

Having thus given a bird's-eye view, and some illustrations of the practical bearing of the usury law of the States, let us proceed to consider its incommodities, and the desirability of a reform in the law of New York.

We are told that the Mosaic law prohibited the Jews from taking interest; but this may be shown to have been more a political than a moral precept, for it only prohibited them from taking usury of their own race, expressly allowing them to exact it of strangers. As we read in Deut. xxiii, 19, 20: "Thou shalt not lend upon usury to thy brother; usury of money, usury of victuals, usury of any thing that is lent upon usury. Unto a stranger thou mayest lend upon usury, but unto thy brother thou shalt not lend upon usury."

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writers have often drawn arguments from this source, and from the fanciful theories of Aristotle, Domat, and Pothier, that, as money is naturally barren, to make it breed money is preposterous.

Against the taking of usury, some theorists have held that it were a "pity the devil should have God's part, which is the tithe;" that the usurer is the greatest Sabbath breaker, because his plow goeth every Sabbath, and that he is the drone Virgil speaketh of, Ignavum fucos pecus a prœsepibus arcent.

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The canon law likewise prohibited the taking of any interest for money loaned, pronouncing it a mortal sin." It is not surprising, that under such strenuousness, the taking of interest should have been looked upon with profound jealousy; and, as some writer has said, with "horror and contempt."

In that age, when nothing was considered honorable but the plow and the sword; when money, as such, was comparatively a secondary consideration — not a merchantable commodity as now; it may be readily imagined how thoroughly the popular mind became imbued with this sentiment. There seems to be no foundation in natural or revealed religion, inhibiting a man from realizing a profit on his money as well as on articles of merchandise; or, if A were to let his horse to B to go a journey, it is no more than just that A should receive an equivalent for such benefit; and, within the purview of the statute, a compensation in such cases greater than the rate of seven per cent, is a simple hiring. 4 Wend. 679: Ord on Usury, 28.

Before proceeding further in this inquiry, it may be proper to enumerate the arguments used by able authorities on the respective sides; and, firstly, those sustaining their policy.

It is observed by Dr. Adam Smith, in his "Wealth of Nations," "that if the legal rate of interest was fixed at a high rate, the greater portion of the money of the country would be lent to prodigals and projectors, who, alone, would give so much, and thus, instead of being employed to profit and advantage, as it might be in better hands, it would most likely be wasted and destroyed; and that such an alteration would lessen the value of land."

That these reasons are the principal ones relied upon in support of this side of the question, may be shown by the language of Lord Chief Justice BEST, who, in delivering the opinion of the twelve judges, in the house of lords, on a question of foreign interest, observed: "That the supposed policy of the usury laws, in modern times, is to protect necessity against avarice; to fix such a rate of interest as will enable industry to employ with advantage a borrowed capital, and thereby to promote labor and increase the national wealth; and to enable the state to borrow on better terms than would be made, if speculators could meet the minister in the money market on equal terms,"

With all due deference to the weight of authority, there seems much in these arguments subject to denial and exception,

First, it is asserted "that the greater portion of the money of the country would be lent to prodigals who alone would give so much." Here we remark, in the first place, that the lender- unless more simple than is characteristic of that class-would never lend his

cash to prodigals without ample security for its payment; and, on the other hand, the prodigal, however prodigal he might be, would not be likely to pay exorbitantly when it could be procured at a cheaper rate.

If the prodigal could give security, he could borrow on equal terms with others. If he can give no security, he cannot borrow at all; or, if lent to him on risk, such risk ought to justify the excess over the regular rate.

With respect to the efficacy of protecting men against themselves, however desirable such a course might be, it is, in this respect, impracticable, unless by placing such parties under the guardianship or administration of their friends. Besides this, those who require this protection against themselves are very few, and would not justify a rule which would affect the great majority alike with the others.

As for the argument that the government would be able to borrow money on better terms if a rate of interest be fixed, it may be said that at whatever rate it be fixed, yet the capitalist would still not lend when other good investments paid a higher rate. So that, in any event, the government would be subject to competition in this respect, and would be still affected by its current price. But let us examine authorities on the other side.

Money," observes Mr. Locke, “is an universal commodity, and is as necessary to trade as food is to life; and everybody must have it at what price they can get it, and invariably pay dear when it is scarce; you may as naturally hope to set a fixed price upon the use of houses or of ships as money." "Those who will consider things," he continues, "beyond their names, will find that money, as well as all other commodities, is liable to the same change and inequality, and the rate of money is no more capable of being regulated than the price of land; because, in addition to the quick changes that happen in trade, this too must be added, that money may be carried in or out of the kingdom, which land cannot." Lord Bacon also, considering this subject, remarks, "that it is vanity to suppose there can be borrowing without profit; and as great inconveniences would arise if borrowing were cramped, in order to retain the advantages and avoid the disadvantage of usury, two rates of interest, a less and a greater, should be adopted, the one to suit the borrower who has good security, and the other to suit the merchant, whose profit being higher will bear a greater rate."

Similar views are expressed by Jeremy Bentham, in his defense of usury, where it is said that "the idea of fixing one rate of interest for every kind of security, and at every period, is as absurd as if the law were to fix the same price for all horses, as the value of horses differs not more than the value of money on different occasions."

And Lord Brougham, in a speech delivered in the house of commons in 1816, declared that the repeal or modification of the usury laws was a measure, in the present age, all mankind agreed was perfectly safe, calculated to afford the greatest measure of relief, and innoxious to the borrower, the lender, and to the state. It has always seemed to us that a valid and principal objection to these laws is that they establish

an uniform rate for all risks; and the risk being always greater or various in mercantile affairs, their operation is manifestly injurious to the trading interests.

It seems clear that no one would lend on bottomry or respondentia at the same rate as upon mortgage security; and to make a distinction on principle would be vacating the reasons upon which the usury laws rest.

In 1834 a petition was presented to the legislature of Massachusetts from certain citizens of Boston, which, after setting forth that such laws were founded on erroneous principles, and were at variance with the commercial spirit of the age, asked that they be totally repealed. In the same year the committee to whom it was referred submitted a report which indorsed the arguments of the petitioners, and admitted that, on principle, their total repeal would be justified. The committee, however, in considering that such sudden and extensive changes in the laws would be generally inexpedient, were content with recommending their repeal only so far as they affected promissory notes and bills of exchange.

Amendments of a similar import were proposed by a committee of the house of commons in England as early as 1818.

To establish a just and proper medium, so that moneyed men will be induced to lend their wealth, and thereby quicken trade, has been considered by practical thinkers as the safer and more politic principle, especially in a government whose organic law partakes either of the republican or democratic form.

In the Athenian republic, Solon is said to have permitted the people to regulate the rate of interest by contract; but De Pauw observes, that usage finally fixed the rate at twelve per cent, in certain cases, and eighteen per cent in others.

Grotius believed that a "reasonable interest" ought to be allowed upon loans; but as to what constitutes a reasonable rate must, in the nature of things, be determined and regulated by circumstances - the peculiar state of society, commerce, and country, and the manner and kind of business transacted-for what would suit the demands of the people in China would not meet with favor in England, neither will the rate of interest adapted to an inland state or city satisfy the people of a seaport city or state.

That it is desirable to inaugurate a reform in the usury law of New York seems apparent, but how, and in what particular mode, is not an easy problem to solve.

In times of great financial embarrassment - when money seems to be worth almost any price to the borrower - when men are ready to hypothecate their real estate or stock in trade, and stipulate to pay enormous rates of interest-at such times it is that a law just and equitable should limit the rate of interest. It is necessary for the security of the community that some rate, commercially just and equitable, should regulate interest, so that the rash borrower or speculator shall be properly curbed in his eagerness to raise money; and thus, while the borrower is restrained, the creditor is protected.

To establish a legal rate at, say six or seven per cent, with the privilege of allowing the parties to

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