covenant, however, that the borrower might buy back the annuity for the same sum on giving six months' notice and an extra payment of £75.

In 1715 we meet for once with a real Welsh mortgage.1 One Davids made a mortgage of lands in Wales by way of lease and release in consideration of £300, with proviso that if he, his heirs or assigns, should on Michaelmas Day, 1702, or any Michaelmas Day following, pay to mortgagee, his heirs or assigns, £300, and all arrears of rent and interest, the conveyance should cease. It was said to be a common practice in Wales to make mortgages in this manner, with design, "from their pride," to keep the estate for ever in their own family. In this case apparently the interest or rent was paid, and the point at issue was the application of dower money, etc., to pay off the mortgage.

Courts of Equity tended to bring mortgages with right of redemption under the Statute of Limitations, and refused relief after twenty years, unless under special circumstances. But a special contract, in which an agreement "like a Welsh mortgage" had been made,2 was allowed to stand because in a Welsh mortgage there "is a perpetual power of redemption subsisting for ever, and the mortgagee cannot compel redemption or foreclosure." In this case there was a grant of annuities in discharge of a debt reserving a power to re-purchase and redeem the annuities. It was held part of the personal estate of the grantee, and similar to the case of Welsh mortgages, Lord Cowper holding that there is no power in mortgagee to compel mortgagor to redeem or foreclose, "the contract being of a different nature."

5

The most interesting contribution to the history of the institution within the United Kingdom no doubt lies concealed among the Irish Law Tracts concerning" the Law of Loans, Pledges, Accommodations and Securities," which still remain unpublished, though their interesting nature was insisted on as long ago as 1857.3 I have not been able to obtain any information as to the provisions of these laws, though the above description of them is sufficiently significant. In Hartpole v. Walsh, it was said that the Welsh mortgage was formerly a common form of mortgage in Ireland, and the case reported of a lease granted as security for a loan shows clearly that the possibilities of the institution had been fully realized in that country. Morony owed O'Dea £200, and in 1784, wishing for a further loan, as a security for both interest and principal, he executed a lease of lands (38 acres) for twenty-one years at 125. an acre. O'Dea entered into possession, and set off the rent against the interest, down to Midsummer, 1797, when the accounts were settled. Upon a further advance of money by way of loan at that time (just as in Malabar), an additional term of twenty years was granted at the same rent as in 1784, but there was an en

1 Howell v. Price. Chancery Precedents (1689–1722), 423, 477.

2 Longuet v. Scawen, per Ld. Hardwicke. I. Vesey Senr., 405.

3 Ancient Laws of Ireland, ii. p. 28.

4 The reference in Fisher, which I have been unable to verify, is 5 Bro., P.C. 275. 5 Morony v. O'Dea. 1. Ball and Beatty (Ir.), 109.

dorsement on the lease saying it should be null and void when the sum of £400 was paid.

O'Dea admitted that the original lease was granted merely to secure the repayment of the money advanced by him, and stated that he entered into possession as mortgagee, the stipulated rent representing the full value of the lands. Morony claimed that he should account, as mortgagee in possession, for profits in excess of rent paid, " which was at undervalue, and ought not to be binding on him." Evidence was offered that in 1784, 125. was a fair value, and the Lord Chancellor held any way that the mortgagor, having acquiesced in the payment for nineteen years, could not now raise the point of undervalue. "This in substance is like a Welsh mortgage wanting Form, and a party complaining (between 1803 and 1809) of transactions in 1784 ought to have come here much sooner."

Lord Redesdale had held in a previous suit that "if the under leases were made bona fide, the account must be taken at the rent reserved; but if they were at undervalue, which he considered fraudulent, "the account must be at the full value of the lands." Morony's counsel argue that the transaction being called a mortgage makes no difference, and that the agreement is usurious if the rent is at less than the full value of the lands. "Considering this Transaction either as a Lease granted in consideration of a Loan of money, or as an agreement in the nature of a mortgage, the Account ought to be taken at the full value of the Lands, otherwise it would be a great Inlet to Fraud, and make a most dangerous Precedent, that a Mortgagee should be suffered to avail himself of any Agreement to avoid accounting at the full value." Finally, the Lord Chancellor feels himself bound by previous decisions of the Court to declare "that a Lease granted in Consideration of a Loan of money cannot, on principles of Public Policy, be supported."

An agreement that a mortgagee shall enter into possession of lands of the mortgagor at a fair rent, in discharge of the debt-to which Lord Redesdale, in another case,1 had objected-cannot (the Lord Chancellor held) be against public policy or work a private injury; and is therefore an exception to the rule that a mortgagee in possession must account for the full value of the lands. The lease of 1784 was therefore upheld, but that of 1787, "which on the face of it is an undervalue," was held to be imposed by the undue influence of the creditor, and O'Dea was therefore required from that date to account in full for rents and profits received, which were to be set against interest and principal, and the balance struck, the mortgagee being deprived of his costs on the ground of the fraudulent nature of the 1797 agreement,

The counsel arguing before Lord Redesdale say "that though the rule collected from the Statute of Usury 'that no advantage, directly or indirectly, above legal interest should be gained,' yet it might be carried too far if applied to every case of a lease granted at the same time that a loan of money was obtained." While the Lord Chancellor comments: "It 1 Browne z. O'Dea. 1. Sch. and Lef. 115.

would perhaps be a good rule to be generally observed, that a transaction of this kind (the renewal of a lease for a longer term at the same rent or with additional advantages) is not to make part of a transaction respecting the loan of money, because the person borrowing under such circumstances is not a free agent." Similarly in another case1 Lord Redesdale says: “I never can suffer the loan of money to be any inducement in a transaction of this kind: I do not mean advancing money by way of fine or the like, but when it is a distinct loan of money to a distressed man, for which security is to be taken and he is still to continue a debtor for it." "It is against public policy that those who make profit on their money without hazard, should have as large a profit as those who employ it in trade and manufactures, which are hazardous undertakings." The upshot being that the leases granted (by a spendthrift to a speculative, money-lending brotherin-law) are cancelled.

In yet another Irish case the plaintiff, who was then very much pressed for money, "declared he would not grant a lease to any person who would not accommodate him with a sum of money." The lease was set aside. But an under lessee bona fide and not concerned in the transaction of the loan remained undisturbed.

The Irish courts seem to have had a latent conviction that freedom of contract between landlord and tenant or between debtor and creditor was in the nature of things impossible. If the capitalist dictated the terms upon which he would lease the lands, the agreement was void because the power of the purse was irresistible; and even if the landowner insisted upon a money advance in consideration of the lease, it was void also, as still tending to his own impoverishment. Where such agreements stand unimpeached, we find either that the two parties are-as a matter of fact— equally matched, like the trader and the agriculturist in Babylonia, or that the political superiority of the one (like the Nair landlord) counterbalances the financial superiority of the other (e.g. the Mapilla tenant). The usurious tenant creditor of the O'Dea type only takes possession in order to sub-let at an advance, not to cultivate himself.

A lease granted at the time of a loan, containing a clause empowering the tenant to retain a portion of the yearly rent till the money was repaid, (without interest) was not upset. The precedent quoted was a case where the defendant was indicted for usury in taking more than legal interest by getting a beneficial lease. Hale (C. J.), before whom it was tried, said, "that if any other security for the payment of the money had been taken, or that by any collateral agreement it were to be repaid, and all this a contrivance to avoid the statute, it would be usury." Cases of this sort had practically ceased to come before the English courts, while still frequent in Ireland; where also we meet with an example of a loan in the form of an advance of rent. 4 The amount of two years' rent was paid down and a 1 Drew v. Power. 1. Sch. and Lef. 182.

lease granted for two years at 5s. a year, and then another lease for 41 years at the rent contemplated in the advance (i.e. £275), the interest of the first advance to be deducted from the first gale of rent under the second lease. Lord Chancellor Manners said, "The Doctrine of lease and loan appears to me to have been carried far enough." This is not a lease in consideration of a loan; it is but "an advance of rent by way of fine or foregift," and therefore to be upheld.

It is earnestly to be wished that the interrupted translation of the Irish laws may be resumed, and we should then perhaps get a clue as to the steps by which the Malabar lease in consideration of a loan developed out of the pure Babylonian antichresis. Meanwhile, the persistency of so strongly specialized an institution within narrow and definite limits certainly gives a presumption in favour of its having spread along with men of a particular stock or race. And from this point of view the Welsh mortgage and the Irish lease in consideration of a loan may be taken as an argument for the importance of an Iberian or other equally archaic element in the population of the British Isles.

I am indebted to the kindness of Sir Charles Elton for nearly all the above references.

It is perhaps a question whether the taurerec or small subsidy, called in the case of inferior tenants raith or wages, given by the superior to his dependant, had anything to do with the habit of regarding loans and leases as exchangeable values. But there is at least nothing paradoxical in the somewhat strange attempt to interpret Chinese antiquities by Irish analogies, when, in addition to minor parallels, we find the same faith in the vicarious efficacy of royal virtue in both countries. "It was the belief of the ancient Irish that when a good and just king ruled, crops were plentiful, cattle were fruitful, the water abounded with fish, and the fruit trees had to be propped owing to the weight of their produce. Under bad kings it was all the reverse. (Joyce, Short History of Ireland, p. 64.)

APPENDIX D.

Vol. I., p. 259.

BABYLONIAN DYNASTIES AND REIGNS.

THE names, dates, and order of the kings of Babylon are being constantly added to and revised, so that any chronological summary is liable to become antiquated even while it is being printed. But when only approximate accuracy is required, or attainable, a table of names and dates, which the reader will understand to be purely tentative and provisional, is the most convenient for reference, and may serve instead of an historical summary to those who are not specially interested in the history of Mesopotamia. The basis of the table is derived from the great lists, called A and B (ante, p. 258), of Babylonian kings, supplemented from other sources as they become available, and with round numbers substituted for those suggested in different detailed attempts at a chronological reconstruction.