« PreviousContinue »
form. And such a lawyer is as naturally inclined to improve the law where he perceives the need and the opportunity as a mechanic is to improve the tools of his trade, or the farmer to introduce better methods of agriculture. Nor is it true that the able lawyer finds it to his interest to have the law doubtful and uncertain ; his interest on the other hand is to have the value and usefulness of his profession recognized and appreciated, and to this end it is of the highest importance that he should be able to give to those who seek his advice safe and trustworthy counsel. He can do this only when the law itself is trustworthy, and his interest, therefore, as certainly as his pride in his pro. fession and in the law itself will naturally incline him towards a reform in the law whenever the need of reform shall be manifest.
To defend the profession against the reproaches that are heaped upon it, either because of misunderstandings or ill will, or because of the conduct of unworthy members, has not been among the purposes of our gathering on this occasion. But I take satisfaction in believing, and therefore in affirming on all suitable occasions, that the profession as a whole rccognizes the unquestionable fact that it exists under the law only because it is supposed to constitute a valuable aid to remedial justice, and that it best promotes justice by making the law plain to the common apprehension, and by relieving it from technical and abstruse constructions, as well as from applications the equity of which is not apparent to the common mind. There is not a State in the Union whose roll of attorneys does not contain many names of men whose reputations are cherished for such distinguished services at the bar or on the bench as are very well calculated to remind us that in the domain of peace and in the quiet of every day life there may be achievements as deserving of renown as any that may be won in the shock of armies. The noble Commonwealth at whose capital we meet may justly take pride in a long list of such men, whose memories are cherished for many public and private virtues; men who, in aspiration and attainments, have risen above sordid aims into
To-day let'us recall with profound respect their unostentatious labor in making the law which holds together and preserves society mor plain and certain, not in the abstract merely, but in its ordinary appli cation as a regulator in the domestic, the industrial and the commercia relations of the people.
Brethren of the legal profession, we cherish a noble ambition if, above all mere personal views and desires, we aim to make the world better and our country the greater and nobler for our having lived in it. The aim will be in a large degree accomplished if our labors shall tend to simplify and elevate the law. Without good and trustworthy laws there can be no great and noble State, no settled order, no happy people. And far beyond all other influences, the labors of the legal profession are capable of lifting the State to that enviable condition of a State whose laws give content to the people because they are just, and because the people know and understand and approve, and therefore abide by them.
USURYAS AFFECTING SECURITIES
THE GEORGIA BAR ASSOCIATION,
AUGUST 4TH, 1887,
BY R. S. LANIER.
Modern thought, earnest and free as it is, is a foe to prejudice. It investigates all things, -art, science, politics, law, ancient faiths, precedents, -seeking to value each of them at the worth of each.
It is as the hammer of Thor, to strike down abuses, and remove obstacles to needed reforms. So the spirit of reform gets abroad in the land. Informed by modern intelligence, stimulated by modern activities, it investigates in order to understand; it questions in order to improve.
Reform, in the sense of securing betterments, is simply a phase of evolution. The improvements which succeeding generations of men make over former ones illustrate the law of moral evolution.
The spirit of modern reform is aggressive, as it should be, for it encounters inveterate enemies. These ancient faiths, precedents and prejudices also are as lions in the path of reform. They are found all along the ages, from the fetishism of the barbarian to the liberalism of the modern free thinker. Even now, in the highways of this boasted age and nation, as well as in the by-ways, they may be observed opposing progress.
There is hardly a matter affecting human transactions that has passed through more phases, excited more prejudice, or been the subject of more unreasoning discussion and legislation, than that of usury. Like the red flag shaken at the “ torro," usury was only to be named to stir the average law maker, and sometimes the law expounder, 10 intemperate action. In the light of modern experience, there ought 10 be no misconceptions about it. In the light of the intelligent commerce of the age, there ought to be no superstitions to exaggerate it. The gulf between eight per cent interest and eight and a quarter per cent. interest ought not to be so deep as to bury, not only the excess, but the whole principal and lawful interest of the lender. Regard for justice and right ought to save something from the clutches of the “insatiate" debtor. Whatever may have been the extortions or abuses under rude laws of ancient peoples, or in mediæval times, or under ecclesiastical or other laws in England, or elsewhere, there ought to be no excuse now for laws which work a forfeiture of the whole debt. Such laws are not in consonance with the spirit of the age. They are opposed to its needs—to a modern sense of what is just between man and man.
Never were trade and commerce so multiform and extensive as now. Never was there a better reason than exists now for encouraging the sentiment of fair dealing in all transactions. The spirit of the times invokes it. Moral principle, the surest basis of all success, demands it. All appeal for some reformatory legislation.
Modern law writers on usury refer to the change in public sentiment concerning usury. It is losing its bad character. The prejudices which perverted it to wrongful ends are yielding to a juster appreciation of the subject.
Mr. Tyler, in his work on Usury, after a graphic tracing of its vicissitudes among the nations, remarks, in the closing chapter on England: “It will be observed that the laws of Great Britain relating to usury gradually became less and less stringent; and some dozen years ago, public opinion had reached a crisis which called for free trade in interest, and accordingly Parliament passed an act repealing all laws then in force upon usury.” That seems to have been a great awakening in Great Britain. It was emancipation from servile prepossessions. But no such repeal of our interest law is intended to be asked for here. The rate of interest as now fixed by law is satisfactory.
Under the head of“ Usury," in the American Encyclopædia, we find this: “Originally it (usury) meant any taking of money for the use of money; and he was therefore a usurer who, lending money, required in payment anything more than the amount which he lent. This was once considered a great moral wrong; but it is no longer deemed more to take pay for the use of money than for the use of a house, or a horse, or any other property. If compensation be taken within the limitation of the law, it is called interest; but if more be taken than the law allows, this is the present meaning of usury. The opinion that money should be borrowed and repaid, or bought and sold, upon whatever terms the parties should agree to, like any other property, has, of late years, gained ground almost everywhere, and where usury laws are in force, this opinion has perhaps exerted influence in adjudications."
Such relaxation of the stringency of public opinion on the subject is believed to be true as stated ; but this fact does not seem to have exerted much influence on adjudications in Georgia. The argument against the then existing usury laws in Massachusetts, in a memorial which went up from citizens of Boston, in 1834, to the Legislature of that State, procured a material modification of those laws, and has ilever been fully answered since. No doubt that argument (which can. not be reproduced here) effected ameliorations of the laws elsewhere. In Massachusetts the rate of interest, without contract, is six per cent., but any rate may be agreed on.
As nature, it is said, abhors a vacuum, so the law, in matters of contract, ought to abhor forfeitures. Forfeitures make undeserved vacuums in nien's pockets. They are traps of the law which enable one set of men to rob another set-to get something for nothing-and are demoralizing to all parties concerned.
The policy of the law which limits the rate of interest and makes any excess agreed on forfeitable, is not questioned. It is the effect of the law, as applied by the court to securities for payment of the debt, that is deemed to call for correction. For example:
In Broach vs. Smith, executor of Kelly, 75 Ga. Ri, 159, the court decided : “A conveyance made under section 1969 of the Code to secure a debt, and which is voici as title, on account of usury, cannot be foreclosed as an equitable mortgage.” Broach had borrowed money of Kelly to buy a tract of land, and given his note for something over legal interest, and a deed absolute to the land to secure its payment to the lender-Broach retaining possession. A bill was filed by Kelly to foreclose the deed as an equitable mortgage. That suit was brought on the faith of the former one of Bullard vs. Long, 68 Ga. R., 821, involving a similar deed taken as security, and similar facts, including usury.
In the Broach-Kelly case, the court refused to accept the Bullard - Long case as authority-stating that the point made in the Broach case was not made in the Bullard Long case, and that therefore the decision of the latter was obiter dictum. (Whether the point was ma le or not in the Bullard-Long case, is now useless to discuss. This