^ " Those who have large landed estates have always been envious of the sudden fortunes raised by commerce, and the improve- ments and increase of personal estates. Treatise on treatise may be written to prove that these two interests mutually support and strengthen each other; the prejudice may indeed be somewhat les- sened, but cannot be radicated." — {Barr. Obs. on the Stat. o/Merton.')
- De.jur belli et pacts, 2, 1, c. 12, Sec. 22.
INCONSISTENCIES OF THE LAW. 133 of them. But it is not believed that this theory would be realized in practice. There are always capi- talists who, not being in the active pursuit of business, prefer to invest their money in the safe and simple form of mortgage, regarding it as more per- manent and fixed, less liable to contingencies, and the income derived therefrom consequently more settled, regular, and certain. Besides which, the chance urged by the land-owners may be provided against, as indeed it almost always is, by a stipulation between the parties in the deed itself, setting a term of months or years, when the principal shall become due.
But let us proceed, and see if there are any more reasons for desiring some alteration in the present system. It is competent in some States for a debtor, when sued for the principal and interest, or any part of them, on a contract tainted by usury, to set up the usury as a defence, and if he can prove it, entirely escape payment.^ Now, ask any man of sound moral principle, if he can call that honest ? or any man of common sense, if it is not a premium held out by law for rascality ? Thus a man borrows one thousand dollars, and agrees to give a thousand for the convenience of the loan, and accordingly executes a bond, conditioned to pay two thousand dollars within (say) two years ; when by the terms of the bond it becomes due, he sets up a plea of ^ 2 R. S. N. Y., c. 4, p. 3, 3d edit. Similar in Connecticut and other States. See end of 4th chapter.