4001. INTEREST (Money), Law and custom.—
Nothing is said[in the treaty of peace] of interest on these debts; and the
sole question is, whether, where a debt is
given, interest thereon flows from the general
principles of the law? Interest is not a part
of the debt, but something added to the debt
by way of damage for the detention of it.
This is the definition of the English lawyers
themselves, who say, “Interest is recovered
by way of damages ratione detentionis debiti
”. 2 Salk. 622, 623. Formerly, all interest
was considered as unlawful, in every
country of Europe. It is still so in Roman
Catholic countries, and countries little commercial.
From this, as a general rule, a few
special cases are excepted. In France, particularly,
the exceptions are those of minors,
marriage portions, and money, the price of
lands. So thoroughly do their laws condemn
the allowance of interest, that a party
who has paid it voluntarily may recover it
back again whenever he pleases. Yet this
has never been taken up as a gross and flagrant
denial of justice, authorizing national
complaint against those governments. In
England, also, all interest was against law,
till the stat. 37, H. 8, c. 9. The growing
spirit of commerce, no longer restrained by
the principles of the Roman Church, then
first began to tolerate it. The same causes
produced the same effect in Holland, and,
perhaps, in some other commercial and Catholic
countries. But, even in England, the allowance
of interest is not given by express
law, but rests on the discretion of judges and
juries, as the arbiters of damages.—
To George Hammond. Washington ed. iii, 416.
Ford ed., vi, 57.
(Pa.,
17921792)gt;
