Author Archives: Marc O. DeGirolami

Neutrality Partiality

I have a short essay on the Library of Law and Liberty site involving the idea of religious neutrality when it comes to American public and private education. It was occasioned in part by the Colorado Supreme Court’s recent decision invalidating, pursuant to its state Blaine Amendment, a local program that would have made tuition scholarships available to certain students, which the students could then use to pay to attend private religious and nonreligious schools. I criticize the decision but use it to talk about certain broader issues. Here’s a bit from the conclusion:

Focusing on these details of Colorado law, however, obscures certain larger questions. If “sectarian” truly does mean “Catholic,” and even if it means, as Black’s Law Dictionary says, “of, relating to, or involving a particular religious sect,” then any state Blaine Amendment with this language would be subject to constitutional challenge under the Supreme Court’s free exercise law. “Sectarian” does not sound particularly neutral; or, to the extent it does, it sounds in the rather counterintuitive neutrality of state-endorsed religious hostility. Yet even this perspective on the question of neutrality passes over the colossal non-neutrality of the government’s systematic and exclusive funding of its own putatively religion-neutral schools, to the detriment of able students—many of them from poor and educationally underserved communities—who would greatly benefit from private religious schooling. Neutrality between religion and non-religion seems to demand a plainly partial allocation of resources. Or, one variety of government neutrality—no funding of religious schools—obstructs the achievement of another—educational opportunity.

The question of the place of religion in American educational life—whether in the nation’s public schools or in its position on private religious schools—will not be answered by neutrality talk, for the fundamental reason that nothing in the projects of American education is or ever has been neutral toward religion. From the very first, it was precisely the non-neutrality of the state toward religion that has been one of the prime catalysts of cultural and legal development in American education policy, public and private. There is an understandable tendency among some opponents of state Blaine Amendments such as Colorado’s to reduce them to simple expressions of non-neutral anti-Catholicism. Often they were that, but they were more.

To understand them merely in these terms—as lamentable examples of “discrimination”—domesticates them. It consigns them to a history from which we have happily progressed now that we have entered an epoch in which the making of discriminations of any kind is taboo. It puffs us up with the Whiggish certitude that to repudiate the Blaine Amendments is to rid ourselves decisively of the very real problem they addressed. That problem—how to foster through education the common civic culture upon which the American polity, even still, depends—does not vanish by easy, self-congratulatory resort to the voguish platitudes of antidiscrimination. The Blaine Amendments were woefully inadequate responses to that problem, but responses nonetheless. The empty bromide of religious neutrality is no response at all.

Goodman, “American Philosophy Before Pragmatism”

Pragmatism has been called America’s most distinctive contribution to American Philosophy Before Pragmatismphilosophy. And pragmatism has certainly influenced American law–see, for example, the contributions of Richard Posner to jurisprudence. Here is a new book that explores American philosophical thought before the 20th century pragmatist explosion, American Philosophy Before Pragmatism, by Russell B. Goodman (University of New Mexico), to be released in September by Oxford University Press. The publisher’s description follows.

Russell B. Goodman tells the story of the development of philosophy in America from the mid-18th century to the late 19th century. The key figures in this story, Jonathan Edwards, Benjamin Franklin, Thomas Jefferson, the writers of The Federalist, and the romantics (or ‘transcendentalists’) Emerson and Thoreau, were not professors but men of the world, whose deep formative influence on American thought brought philosophy together with religion, politics, and literature. Goodman considers their work in relation to the philosophers and other thinkers they found important: the deism of John Toland and Matthew Tindal, the moral sense theories of Francis Hutcheson, Adam Smith, and David Hume, the political and religious philosophy of John Locke, the romanticism of William Wordsworth and Samuel Taylor Coleridge, and the transcendental idealism of Immanuel Kant. Goodman discusses Edwards’s condemnation and Franklin’s acceptance of deism, argues that Jefferson was an Epicurean in his metaphysical views and a Christian, Stoic, and Epicurean in his moral outlook, traces Emerson’s debts to writers from Madame de Stael to William Ellery Channing, and considers Thoreau’s orientation to the universe through sitting and walking.

The morality of American slavery is a major theme in American Philosophy before Pragmatism, introduced not to excuse or condemn, but to study how five formidably intelligent people thought about the question when it was–as it no longer is for us–open. Edwards, Franklin and Jefferson owned slaves, though Franklin and Jefferson played important roles in disturbing the uneasy American moral equilibrium that included slavery, even as they approved an American constitution that included it. Emerson and Thoreau were prominent public opponents of slavery in the eighteen forties and fifties. The book contains an Interlude on the concept of a republic and concludes with an Epilogue documenting some continuities in American philosophy, particularly between Emerson and the pragmatists.

A Few Notes on the Libertas Conference on Religious Freedom

Mark and I are just back from the Libertas Conference at Villanova Law School. It was an extremely edifying period of thought, reflection, and fellowship with a wonderful group of lawyers, political theorists, philosophers, historians, and journalists, including Steve Smith, Damon Linker, Christopher Tollefsen, Elizabeth and David Corey, Tuan Samahon, and Gerald Russello, among many others. Rick Garnett, Zak Calo, and I were fortunate enough to moderate the sessions over a period of three days.

The sessions really broke down into four general categories: (1) genealogical accounts of church and state in modernity (including readings by Brad Gregory and Mark Lilla, as well as by Steve Smith); (2) historical studies of the specifically English and American experience of church and state (including readings by Stuart Banner and Michael McConnell), (3) comments on the projects of cultural Christianity and secularism (John Courtney Murray, Robert Louis Wilken, and Pope Benedict XVI were on the agenda); and (4) diagnoses of and prognoses for religious freedom in the United States (here some of the readings were decidedly inferior as they included some of my recent work, but also much better material by Rick Garnett and Paul Horwitz).

The conference was organized by Michael Moreland with his usual grace, generosity, and aplomb. The participants’ comments and insights will influence my own thinking and writing for a while, in ways I hope to note by and by. But here’s one initial thought having to do with scholarly method. There are of course many different ways to make scholarly contributions in law: argument in the service of changing doctrine, synthesis of a body of law to arrive at a new insight, normative pleas for turns or returns to various positions having assertedly desirable political ramifications, studies of empirical states of affairs, and so on. But my own view–helped along and shaped by the participants at the conference (as well as by posts like this one)–is that we are at the beginning of the flowering of an interesting period of long-view, retrospective, critical diagnostic scholarship in law and religion and constitutional law more broadly. Not everybody will be interested in this sort of approach, of course. Others in the field have different projects and different objectives. But at least for me, this is an invigorating thought.

Center Faculty Participate in Libertas Project Sponsored by Templeton Foundation and Hosted by Villanova Law School

Mark and I are at lovely Villanova University School of Law for the next few Libertasdays, participating in the religious freedom component of the Libertas Project, sponsored by the Templeton Foundation and organized by our old friend, Professor Michael Moreland. We’ll have more to report as the discussion gets underway.

Summer Fridays With Pascal: On the Nature of Law

Many law students know the rough outlines of the distinction between naturalLaw law and legal positivism. Both are theories about the nature of law–about what is distinctive about law as a concept. There are many difficulties and nuances here, but as a rough and ready statement, one could say that legal positivism holds that in order for something to be “law,” we must look to its provenance or pedigree in this social world, and only in this social world. It follows that for legal positivists, there is an unbridgeable conceptual gap between what the law is and what the law ought to be–between something’s being law and something’s being a just or moral law. The natural law conception of law is quite different. It holds that “law” includes as its fundamental or “core” example just law–morally correct law. This does not mean that the natural lawyer refuses to believe that there can be unjust laws. Surely there can be. What the natural lawyer believes is that a law’s justice, or its morality, is an integral part of what makes law truly, or fully, or in its core case, law.

It is interesting to see Pascal weighing very much in on the side of legal positivism. He is coming, of course, not from the perspective of what one typically associates with contemporary legal positivism (a late nineteenth/twentieth century phenomenon) but from the Jansenist perspective of the fallenness of postlapsarian humanity. His view is that though natural justice exists (i.e., Pascal is not a relativist), humanity simply cannot know what it is in its depraved state. Whatever laws exist are law simply because bodies vested with proper authority have issued them. Note also that this view of law and justice greatly reduces the issue of compliance against conscience with what one deems an unjust law. What do you expect in this world, with these fallen creatures, after all, but unjust law? Here is Pascal:

On what shall man found the order of the world which he would govern? Shall it be on the caprice of each individual? What confusion! Shall it be on justice? Man is ignorant of it.

Certainly had he known it, he would not have established this maxim, the most general of all that obtain among men, that each should follow the custom of his own country. The glory of true equity would have brought all nations under subjection, and legislators would not have taken as their model the fancies and caprice of Persians and Germans instead of this unchanging justice. We would have seen it set up in all the States on earth and in all times; whereas we see neither justice nor injustice which does not change its nature with change in climate. Three degrees of latitude reverse all jurisprudence; a meridian decides the truth. Fundamental laws change after a few years of possession; right has its epochs; the entry of Saturn into the Lion marks to us the origin of such and such a crime. A strange justice that is bounded by a river! Truth on this side of the Pyrenees, error on the other side.

Men admit that justice does not consist in these customs, but that it resides in natural laws, common to every country. They would certainly maintain it obstinately, if reckless chance which has distributed human laws had encountered even one which was universal; but the farce is that the caprice of men has so many vagaries that there is no such law.

Theft, incest, infanticide, parricide, have all had a place among virtuous actions. Can anything be more ridiculous that a man should have the right to kill me because he lives on the other side of the water, and because his ruler has a quarrel with mine, though I have none with him?

Doubtless there are natural laws; but good reason once corrupted has corrupted all. Nihil amplius nostrum est; quod nostrum dicimus, artis est. Ex senatus–consultis et plebiscitis crimina exercentur. Ut olim vitiis, sic nunc legibus laboramus. [My translation: Nothing more than this is ours; what is ours is what we say, our art. Crimes are mandated to us by the senate, the consuls, and the people. Once we suffered from our vices, now we suffer from our laws.]

The result of this confusion is that one affirms the essence of justice to be the authority of the legislator; another, the interest of the sovereign; another, present custom, and this is the most sure. Nothing, according to reason alone, is just in itself; all changes with time. Custom creates the whole of equity, for the simple reason that it is accepted. It is the mystical foundation of its authority; whoever carries it back to first principles destroys it. Nothing is so faulty as those laws which correct faults. He who obeys them because they are just, obeys a justice which is imaginary, and not the essence of law; it is quite self-contained, it is law and nothing more….

From Fragment 294 of Pensées.

Summer Fridays With Pascal (Birthday Edition): The Wager

On the occasion of Pascal’s birthday, what more appropriate way to celebrate Pascalthan to read his famous wager? Many people know vaguely that there is something called “Pascal’s Wager” as well as its general thrust. But here is some of the text in which Pascal elaborates it, collected in Pensées. 

The problem confronted by Pascal is that of doubt–doubt about the existence of God. Pascal’s Wager has been criticized extensively by later philosophers (no surprise) but it is a true classic. Note the distinctively Jansenist separation of faith and reason. From Fragment 233:

Let us now speak according to natural lights.

If there is a God, He is infinitely incomprehensible, since, having neither parts nor limits, He has no affinity to us. We are then incapable of knowing either what He is or if He is. This being so, who will dare to undertake the decision of the question? Not we, who have no affinity to Him.

Who then will blame Christians for not being able to give a reason for their belief, since they profess a religion for which they can give no reason? They declare, in expounding it to the world, that it is a foolishness, stultitiam; and then you complain that they do not prove it! If they proved it, they would not keep their word; it is in lacking proofs, that they are not lacking in sense. “Yes, but although this excuses those who offer it as such, and takes away from them the blame of putting it forward without reason, it does not excuse those who receive it.” Let us examine this point and say, “God is, or He is not.” But to which side shall we incline? Reason can decide nothing here. There is an infinite chaos which separates us. A game is being played at the extremity of this infinite distance where heads or tails will turn up. What will you wager? According to reason, you can do neither the one thing nor the other; according to reason, you can defend neither of the propositions.

Do not then reprove for error those who have made a choice for you know nothing about it. “No, but I blame them for having made, not this choice, but a choice; for again both he who chooses heads and he who chooses tails are equally at fault, they are both in the wrong. The true course is not to wager at all.”

Yes; but you must wager. It is not optional. You are embarked. Which will you choose then? Let us see. Since you must choose, let us see which interests you least? You have two things to lose, the true and the good; and two things to stake, your reason and your will, your knowledge and your happiness; and your nature has two things to shun, error and misery. Your reason is no more shocked in choosing one rather than the other, since you must of necessity choose. This is one point settled. But your happiness? Let us weigh the gain and the loss in wagering that God is. Let us estimate these two chances. If you gain, you gain all; if you lose, you lose nothing. Wager, then, without hesitation that He is.

“That is very fine. Yes, I must wager; but I may perhaps wager too much.” Let us see. Since there is an equal risk of gain and of loss, if you had only to gain two lives, instead of one, you might still wager. But if there were three lives to gain, you would have to play (since you are under the necessity of playing), and you would be imprudent, when you are forced to play, not to chance your life to gain three at a game where there is an equal risk of loss and gain. But there is an eternity of life and happiness. And this being so, were there an infinity of chances, of which one only would be for you, you would still be right in wagering one to win two, and you would act stupidly, being obliged to play, by refusing to stake one life against three out at a game in which out of an infinity of chances there is one for you, if there were an infinity of an infinitely happy life to gain. But there is here an infinity of an infinitely happy life to gain, a chance of gain against a finite number of chances of loss, and what you stake is finite. It is all divided; wherever the infinite is and there is not an infinity of chances of loss against that of gain, there is no time to hesitate, you must give all. And thus, when one is forced to play, he must renounce reason to preserve his life, rather than risk it for infinite gain, as likely to happen as the loss of nothingness….

Now, what harm will befall you in taking this side? You will be faithful, honest, humble, grateful, generous, a sincere friend, truthful. Certainly you will not have those poisonous pleasures, glory and luxury; but will you not have others? I will tell you that you will thereby gain in this life, and that, at each step you take on this road, you will see so great certainty of gain, so much nothingness in what you risk, that you will at last recognize that you have wagered for something certain and infinite, for which you have given nothing.

Supreme Court Unanimously Strikes Down Arizona Municipality’s Sign Code as Violating Speech Clause

A busy First Amendment day at the Court today. In Reed v. Town of Gilbert, the Court unanimously strikes down the town’s byzantine sign ordinance as violating the Speech Clause, and in particular as being content-based regulations that do not survive strict scrutiny. Justice Thomas writes the opinion for the Court in which everybody joins except Justice Breyer (who concurs in the judgment only) and Justice Kagan (who concurs in the judgment only and is joined by Justices Ginsburg and Breyer).

The majority holds that the town’s sign code was content-based on its face, permitting larger signs for political and ideological messages than for other sorts of messages, such as the plaintiff’s desired sign concerning its church services. The Court had some rather pointed words for the Ninth Circuit, whose justifications for the restriction the Court rejected emphatically. I previously discussed the case here.

Perhaps of interest only to Supreme Court watchers, but note that this is yet another law and religion case decided 9-0 by the Roberts Court. True, there were a few concurrences in the judgment only, but it’s still an interesting feature of the case. As I discuss at greater length in this paper, the Roberts Court’s uniform pattern is 9-0 or 5-4 in this context. I speculate about why in the article.

Specialty License Plate Case Decided by the Supreme Court on Government Speech Grounds

The Supreme Court today decided Walker v. Sons of Confederate Victims, which dealt with a state’s capacity to deny a specialty license plate to a group that wanted to feature a Confederate flag and the words “Sons of Confederate Veterans.” In an opinion by Justice Breyer (and joined by Justice Thomas), the Court holds 5-4 that speech on license plates is “government speech,” and therefore that the First Amendment does not stop the state of Texas from choosing what sort of message it will endorse. It would be one thing, said the Court, if the state were demanding that individuals “convey the government’s speech”–in essence acting as the government’s mouthpiece. But “as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.” The Court relied extensively on Pleasant Grove City v. Summum, another government speech case concerning a municipality’s rejection of a religious organization’s proposed monument in a public park that contained a Ten Commandments monument as well as several others. In Summum, the Court held that the municipality had not made the park available for private speech; all of the displays were government speech. The majority opinion here held that such was the case with the speciality license plates as well (oddly enough, since Texas had accepted applications from other organizations for specialty plates). Justice Alito dissented on the ground that Texas in fact does authorize specialty plates with distinctive messages that are obviously not government-endorsed speech (do see the Appendix beginning at page 18 of his opinion).

“Patents on Life” Conference at Cambridge

Apropos of Mark’s excellent post below, our friend Tom Berg has the details here of a very interesting conference at Cambridge University this fall concerning patent law and religion. Looks fascinating. I’ve reproduced the conference description below.

With the explosion of genetic technology and the drive to access and make use of genetic resources, the issues surrounding the patenting of living things and living material–human, animal, and plant–have become tremendously complex and important.  What is the line between patentable scientific creations and unpatentable features of nature? What effects do patents on human genes, or on genetically modified crops, have on people in poverty or in developing countries? What is a fair allocation of indigenous genetic resources among traditional peoples and multinational corporations? What role should moral objections to particular technologies play in determining whether they can be patented? And what do religious insights have to offer on these legal, moral, and social questions?

Summer Fridays with Pascal: On Intention

Today’s post on Pascal reproduces a fragment from his “Letters to a Provincial”

The Jesuit Scholar Antonio Escobar y Mendoza

The Jesuit Scholar Antonio Escobar y Mendoza

(sometimes called “Provincial Letters”), a wonderful work of political and religious polemic in the defense of Jansenism and against a particular kind of casuistry in Jesuit thinking (the letters’ more immediate aim was to defend Antoine Arnauld, Pascal’s fellow Jansenist, who was threatened with censure by the theological faculty at the Sorbonne for certain writings). The complete letters may be found here.

Many of the letters are in the form of a dialogue between Pascal and a “monk,” a Jesuit priest whose verbal artifice and rhetorical obfuscation is made the object of ridicule. In the 6th and 7th letters, Pascal takes aim at what is sometimes called the “doctrine of double effect”–the general idea that one may be morally permitted to perform a wicked or evil action if one does not have a culpable state of mind in performing that action. The doctrine is, of course, the root of many of our contemporary ideas of mens rea in criminal law (particularly the sort of mens rea governing inchoate crimes like conspiracy and complicity). It should come as little surprise that the Jansenist position on original sin would stand in some tension with the doctrine of double effect. Here is a portion of the dialogue in the 7th Letter (the monk begins the exchange):

“Know then, that this marvellous principle is our grand method of directing the intention- the importance of which, in our moral system, is such that I might almost venture to compare it with the doctrine of probability. You have had some glimpses of it in passing, from certain maxims which I mentioned to you. For example, when I was showing you how servants might execute certain troublesome jobs with a safe conscience, did you not remark that it was simply by diverting their intention from the evil to which they were accessary to the profit which they might reap from the transaction? Now that is what we call directing the intention. You saw, too, that, were it not for a similar divergence of the mind, those who give money for benefices might be downright simoniacs. But I will now show you this grand method in all its glory, as it applies to the subject of homicide- a crime which it justifies in a thousand instances; in order that, from this startling result, you may form an idea of all that it is calculated to effect.”

“I foresee already,” said I, “that, according to this mode, everything will be permitted; it will stick at nothing.”

“You always fly from the one extreme to the other,” replied the monk: “prithee avoid that habit. For, just to show you that we are far from permitting everything, let me tell you that we never suffer such a thing as a formal intention to sin, with the sole design of sinning; and if any person whatever should persist in having no other end but evil in the evil that he does, we break with him at once: such conduct is diabolical. This holds true, without exception of age, sex, or rank. But when the person is not of such a wretched disposition as this, we try to put in practice our method of directing the intention, which simply consists in his proposing to himself, as the end of his actions, some allowable object. Not that we do not endeavour, as far as we can, to dissuade men from doing things forbidden; but when we cannot prevent the action, we at least purify the motive, and thus correct the viciousness of the means by the goodness of the end. Such is the way in which our fathers have contrived to permit those acts of violence to which men usually resort in vindication of their honour. They have no more to do than to turn off their intention from the desire of vengeance, which is criminal, and direct it to a desire to defend their honour, which, according to us, is quite warrantable. And in this way our doctors discharge all their duty towards God and towards man. By permitting the action, they gratify the world; and by purifying the intention, they give satisfaction to the Gospel. This is a secret, sir, which was entirely unknown to the ancients; the world is indebted for the discovery entirely to our doctors. You understand it now, I hope?”

“Perfectly well,” was my reply. “To men you grant the outward material effect of the action; and to God you give the inward and spiritual movement of the intention; and by this equitable partition, you form an alliance between the laws of God and the laws of men. But, my dear sir, to be frank with you, I can hardly trust your premisses, and I suspect that your authors will tell another tale.”

“You do me injustice, rejoined the monk; “I advance nothing but what I am ready to prove, and that by such a rich array of passages that altogether their number, their authority, and their reasonings, will fill you with admiration. To show you, for example, the alliance which our fathers have formed between the maxims of the Gospel and those of the world, by thus regulating the intention, let me refer you to Reginald: ‘Private persons are forbidden to avenge themselves; for St. Paul says to the Romans (12), “Recompense to no man evil for evil”; and Ecclesiasticus says (28), “He that taketh vengeance shall draw on himself the vengeance of God, and his sins will not be forgotten.” Besides all that is said in the Gospel about forgiving offences, as in chapters 6 and 18 of St. Matthew.'”

“Well, father, if after that he says anything contrary to the Scripture, it will not be from lack of scriptural knowledge, at any rate. Pray, how does he conclude?”

“You shall hear,” he said. “From all this it appears that a military man may demand satisfaction on the spot from the person who has injured him- not, indeed, with the intention of rendering evil for evil, but with that of preserving his honour- ‘non ut malum pro malo reddat, sed ut conservet honorem.’ See you how carefully they guard against the intention of rendering evil for evil, because the Scripture condemns it? This is what they will tolerate on no account. Thus Lessius observes, that ‘if a man has received a blow on the face, he must on no account have an intention to avenge himself; but he may lawfully have an intention to avert infamy, and may, with that view, repel the insult immediately, even at the point of the sword- etiam cum gladio!’ So far are we from permitting any one to cherish the design of taking vengeance on his enemies that our fathers will not allow any even to wish their death- by a movement of hatred. ‘If your enemy is disposed to injure you,’ says Escobar, ‘you have no right to wish his death, by a movement of hatred; though you may, with a view to save yourself from harm.’ So legitimate, indeed, is this wish, with such an intention, that our great Hurtado de Mendoza says that ‘we may pray God to visit with speedy death those who are bent on persecuting us, if there is no other way of escaping from it.'”

“May it please your reverence,” said I, “the Church has forgotten to insert a petition to that effect among her prayers.”

“They have not put in everything into the prayers that one may lawfully ask of God,” answered the monk. “Besides, in the present case, the thing was impossible, for this same opinion is of more recent standing than the Breviary. You are not a good chronologist, friend. But, not to wander from the point, let me request your attention to the following passage, cited by Diana from Gaspar Hurtado, one of Escobar’s four-and-twenty fathers: ‘An incumbent may, without any mortal sin, desire the decease of a life-renter on his benefice, and a son that of his father, and rejoice when it happens; provided always it is for the sake of the profit that is to accrue from the event, and not from personal aversion.'”

“Good!” cried I. “That is certainly a very happy hit; and I can easily see that the doctrine admits of a wide application. But yet there are certain cases, the solution of which, though of great importance for gentlemen, might present still greater difficulties.”

“Propose them, if you please, that we may see,” said the monk.

“Show me, with all your directing of the intention,” returned I, “that it is allowable to fight a duel.”

“Our great Hurtado de Mendoza,” said the father, “will satisfy you on that point in a twinkling. ‘If a gentleman,’ says he, in a passage cited by Diana, ‘who is challenged to fight a duel, is well known to have no religion, and if the vices to which he is openly and unscrupulously addicted are such as would lead people to conclude, in the event of his refusing to fight, that he is actuated, not by the fear of God, but by cowardice, and induce them to say of him that he was a hen, and not a man, gallina, et non vir; in that case he may, to save his honour, appear at the appointed spot- not, indeed, with the express intention of fighting a duel, but merely with that of defending himself, should the person who challenged him come there unjustly to attack him. His action in this case, viewed by itself, will be perfectly indifferent; for what moral evil is there in one stepping into a field, taking a stroll in expectation of meeting a person, and defending one’s self in the event of being attacked? And thus the gentleman is guilty of no sin whatever; for in fact it cannot be called accepting a challenge at all, his intention being directed to other circumstances, and the acceptance of a challenge consisting in an express intention to fight, which we are supposing the gentleman never had.'”

“You have not kept your word with me, sir,” said I. “This is not, properly speaking, to permit duelling; on the contrary, the casuist is so persuaded that this practice is forbidden that, in licensing the action in question, he carefully avoids calling it a duel.”

“Ah!” cried the monk, “you begin to get knowing on my hand, I am glad to see. I might reply that the author I have quoted grants all that duellists are disposed to ask. But since you must have a categorical answer, I shall allow our Father Layman to give it for me. He permits duelling in so many words, provided that, in accepting the challenge, the person directs his intention solely to the preservation of his honour or his property: ‘If a soldier or a courtier is in such a predicament that he must lose either his honour or his fortune unless he accepts a challenge, I see nothing to hinder him from doing so in self-defence.’ The same thing is said by Peter Hurtado, as quoted by our famous Escobar; his words are: ‘One may fight a duel even to defend one’s property, should that be necessary; because every man has a right to defend his property, though at the expense of his enemy’s life!'”

I was struck, on hearing these passages, with the reflection that, while the piety of the king appears in his exerting all his power to prohibit and abolish the practice of duelling in the State, the piety of the Jesuits is shown in their employing all their ingenuity to tolerate and sanction it in the Church. But the good father was in such an excellent key for talking that it would have been cruel to have interrupted him; so he went on with his discourse.