LETTER VIII

P. SI, \. 2. qui nous sommes. iVbus is editorial plural. Pascal always asserts that he is fighting siugle-handed.

P. 81, 1. 5. à quatre oti cinq personnes. Among others, Amauld himself was suggested, and his nephew, Antoine Le Maître, who was not in orders.

P. 81, 1. 24. See critical note. Pascal's original phrase •• la bourse," etc., was apparently thought undignified. So with *' Valets " 12 Unes later.

P. 82, 1. 15. Castro Palao. Pascal quotes correctly this opinion of Castro Palao (which was condemned by Innocent XI. in 1679), but he omits the important qualification " provided that the probability be concerning légal interprétation (jus) and not matter of fact {factum), for in the latter case the more probable opinion must be foUowed ".

P. 82, 1. 36. Les juges peuvent recevoir, etc. Molina in his De Justitia

28o LES LETTRES PROVINCIALES

et Jure does not setfcle the question at issue as concisely and definitely as Pascal's summary, which is not, however, unfair to him, would lead one to suppose. In the course of the long Disputatio 88 (" Quae contra leges a ministris publicis accipiuntur, quousque et cui in conscientiae fore sint restituenda "), from which Pascal sélects one passage, he distinguishes between bribes and gifts offered out of mère liberality or gratitude. His opinion is that the former must be returned. The latter he proceeds to consider according to certain principles. They need not be returned when there is no positive law forbidding them, nor even when there is such prohibition, until the court has pronounced judgment in the suit at issue. They are not null in themselves, and to retain them is no violation of justice, but only of the law, if it exists, which forbids them. Kestitution in this case would satisfy a breach of law, but not repair an injustice. It must be remembered that Molina's object is to give practical advice to conf essors how to deal with diflficult cases, and not to outline an idéal morality. (See Introduction, p. xxxii.) It is not difïicult to imagine circumstances, especially in the seventeenth century, when gifts might be innocently offered and accepted. For instance Bacon, when charged with bribery, claimed clean hands and a clean heart, and only admitted carelessness in not observing that the suit, in respect of which he had received money, was still pending. But it is évident that any passage of money between suitor and judge tends to corrupt the purity of the Bench and deserves to be pilloried.

P. 83, 1. 3. Non certainement, selon Layman. Nothing can be said in defence of this proposition of Layman's, endorsed by Escobar, which was condemned by Alexander VII. in 1659.

P. 83, 1. 14. Monsieur le Premier, Président. Nicolas Pomponne de Bellièvre, one of a famous family of magistrates, succeeded Matthieu Mole as " Premier Président " in 1653. He had served as ambassador at St. James's, and displayed his powers of diplomacy in keeping the balance between prince and people after the Fronde. He was always favourable to the Jansenists, and when the printing press of Petit and Desprez was shut down after the First Letter, he permitted it to be reopened. He died ten months after this praise of him was sung by Pascal.

P. 83, 1. 33. r usure. The médiéval Church, under the influence of Scripture (cf. Deut. xxiii. 19, 20 ; Luke vi. 34, 35) and Aristolle (cf. Pol., i., 10, 5: "Money is barren by nature: therefore to extract ofispring from it is a crime against nature ") ; (cf. Shakespeare, Merchant of Venice, Act L, se. 3 —

" when did friendship take A breed of barren métal of his friend ? ")

was extremely severe against usury, or indeed any taking of interest on money lent. It continued in its position long after loans of money had ceased to be confined to the relief of destitution and had become necessary for the development of industry. In this latter case it is obviously right and proper that reasonable payment should be made for accommodation.

Instoad of fraukly rocognizing this and reforming the canon law which forbade the taking of iuterest, recourse was had to ail sorts of légal fictions in order to modify its strictness, and meet a growing and quite legitimate practice. Bauny and Escobar, in the devices which they recommeuded and which Pascal ridicules, were only carrying on what Canonists had beeu doing ever since Christians began to borrow from Christians for commercial purposes. Their ingénions suggestions are in no sensé fraudaient. Yet they are immoral because they are subterfuges invented for the purpose of evading the law which they prétend to keep.

P. 84, 1. 14. en français. Pascal takes évident delight in poking fun at Bauny's clumsy French.

P. 84, 1. 15. Celuy à qui on demande, etc. Bauny's " method " is the well-knowu Triple Contract (Trinus Cotitractus) which was brought into vogue by Navarrus, but which can be traced back to the eleventh century. A entors into partnership with B, and the expectation of both is a profit of, say, 30 por cent, (first contract). A insures his principal by relinquishing to B 10 per cent, of his expectation (second contract). He then insures his resulting expectation of 20 per cent, by relinquishing a further 10 per cent, (third contract), and is left with an immédiate profit of 10 per cent.

What is blameworthy hère is not the transaction itself, but the motive with which it may be undertaken, viz. the évasion of a plain law.

P. 84, 1. 17. si ay bien, si = pourtant.

P. 84, 1. 22. quant et quant. The usual form is quand et quand, " at the same time ".

P. 84, 1. 22. mon sort principal, "my principal ".

P. 84, 1. 23. qu'il ne coure fortune, " so that it runs no risk".

P. 84, 1. 29. se provoquent, "provoke against themselves ".

P. 85, 1. 10. Mohatra. This is a Spanish word, appearing hère for the first time in French literature, derived from the Arabie " Mukhatura," •' risk," i.e. a bargain involving risk. But the thing itself is much older. It was formerly known as " barat, baratum," a word of uncertain origin, perhaps from the Celtic brad "fraud," whence comes Fr. "baraterie," Eng. "barratry," for which see Oxford Eng. Dict. A needs cash and is willing to pay for it. This is forbidden by the Church (see note on p. 83, 1. 83). So borrower and lender combine in a fictitious commercial transaction which is really a loan at interest. B sells to A for, say £110, to be repaid within the year, goods which he immediately buys back for £100, money down. Thus A secures his 10 per cent, and B gets his cash. Molinier quotes a case from the fourteenth century, where a man was fined 45 francs d'or for selling two measures of cloth for 7 florins d'or and, without delivering the goods, immediately repurchasiug them for 5. The interest in this case was 30 per cent. ; in that quoted by Pascal from the Epilogum (p. 113, 1. 8) it is 50 per cent. After the définition (p. 112, 1. 14 ff.) Escobar continues '* Rebello . . . observes that the contract is iorbidden by Castillan law under heavy penalties. Yet it is équitable if the following conditions are observed.

No bargajn, explicit or implicit, must be formed. The price at which the goods are sold must net exceed the highest market price : nor that at which they are resold the lowest : for then a fair price is secured in both, cases. But Molina requires further that the goods shall not be sold with the intention of buying back at the lowest price. Yet, on the other hand, Salis . . . asserted that this was no objection, because when nothing beyond the principal is introduced into the contract and there is no expectafcion of légal reward or obligation in the bargain there is no question of usury, even if interest be the intention of the parties." It is clear in "Mohatra" as in the " trinus contractus" everything dépends on the motive. If A, in need of cash, is ready to pay for the accommodation, he is conniving with B who supplies it in a breach of the law against usury. The selling and buying back of goods which are never delivered is a mère cover for a usurious transaction. The conditions laid down by Escobar and Molina only secure the form of a legitimate transaction, for if more than the highest market price were paid the breach of the law would be glaring. No one could pay more unless for an ulterior motive, viz. to obtain cash.

" Mohatra " was condemned, as a form of usury, by Innocent XI. in 1679. It may be noted that in modem Spanish mohatrar is to make a deceitful sale, and mohair ero is an extortioner.

P. 85, 1. 23. Epilogus Summamm. Sive compendium Theol. Moralis ex variorum praeciptoeqtie Henr. de Villalobos scriptis (Cuenca, 1650 : Paris, 1656), by Juan de Soria Buitron, Franciscan, professor at Cuenca.

P. 85, 1. 25. Fagundez. Estevan Fagundez (1557-1645), Head of the Jesuit Collège at Lisbon, author of Tractatus in quinque ecclesiae Praecepta (1626), condemned by the Spanish Inquisition, and successfully defended by the author in an apology (1630).

P. 85, 1. 83. des loix que le deffendent. Escobar's words are " Notât Eebellus, p. 2, lib. 9, q. 7, n. 7 (i.e. opus de obligationibus Justitiae, etc., Lyons, 1608), in legibus Castellae gravissimis poenis prohiber! ".

P. 86, 1. 19. avec honneur, ne indecorA vivat. Critics in chorus, including Molinier, accuse Pascal of straining, if not of mistranslating, the Latin which is asserted to mean " that he be not reduced to beggary ". But the phrase means what he says. It is beside the point to bring forward passages from other Casuists, quoted by Leys, to the effect that the object of his indulgence is lest the debtor fall into want or a disreputable state (" ut non egeat . . . ne aliquatenus indecenter vivat "). "Ut non indecore vivat " is Leys's expression, and that Pascal hits the mark is shown by the additional qualification " pro sua conditione ". In another passage Leys remarks that there are nobles who contract endless debts in order to maintain a state above their condition {De Just., 2, c. 16, d. 1, n. 28). " Avec honneur " is the exact description of the state which Leys would allow them to maintain out of monies due to their creditor.

It is true that Leys's full opinion concerning bankrupts is not given in the paragraph before us, but the fault is not Pascal's but Escobar's, who fails to chronicle the exception made by Leys in the case of fraudulent

bankrupts and spendthrift nobles. Nouet in his III' Imposture points out tlie injustice done to Leys by Escobar. And Pascal answers hina in Letter III.

P. 86, 1. 36. Castro Palao. Cf. Opus morale de virtidibm et vitiis, i. 666. Pascal omits to say that Castro Palao does not eudorse the opinion of Vasquez, which différa from ail other doctors. But Escobar, with whom he is chiefly concemed, bas no hésitation in accepting it. Escobar adds that the rich victim could uot reasonably refuse the ruling, in considération of the confessor who offers it, supposing that the thief cannot otherwise bo prevented fiom robbing a poor man (*' qui non esset invitus respectu suadentis, posito quod fur a furto aliter non posset absterrori ").

P. 87, 1. 11. quelqu'un prie. . . . The quotation from Bauny is in ail essentials exact. The French Casuist, beforo expressing his own opinion, quotes Cajetanus and Jean do la Cruz on the opposite side.

Bauny's extravagance, which is admitted by Maynard ("décision ridicule "), is happily characterized by Pascal in a Pensée : " Ils raisonnent comme ceux qui montrent qu'il est nuit à midy. Bauny : brûleur de granges " (No. 926).

P. 87, 1. 31. Lessius, l. 2, c. 12, n. 12. The right référence is l. 2, c. 12, d. 12.

P. 87, 1. 36. une nécessité grave. Leys qualifies the grave necessity by addiug "morbi, famis, nuditatis". But even so his opinion did not escape its deserved condemnation by Innocent XI.

P. 88, 1. 12. l'ordre de la charité. A person who innocently acquires the goods of a fraudulent bankrupt may be able by Boman Law to establish right of possession (cf. Maynard, ad loc.), but it is little short of blasphemy to introduce the Ordor of Charity in such a connexion.

P. 88, 1. 26 S. See critical note. The corrections were rendered necessary by Pascal's error in attributing to Leys the opinion of Escobar. The mistake is explained, if not justified, by the form in which Escobar's statement is presented : " At Lessius, lib. 2, cap. 10, dub. 6, num. 46, contrarium probabilius, docuit : quia injuria adulterii non est pecunia compensabilis, et mulier quamvis ex fornicatioue illicite acquirat, licite retinit acquisita ". But there is no doubt that Escobar accurately sums up Leys's opinion, and if Pascal had beeu at the pains of turning up the original text of De jure et jtistiiia, and if his sensé of decency had allowed it, he would bave found rich material for his sarcasm. At the same timo it is true that the principle that money paid for a sinful act may be, in some cases, legitimately retained, is recognized by St. Thomas, and was not a Jesuit invention. Cf. 71" II"', q. 32, art. 7, where, it is said, that an act may be shameful and against God's law, but a gift after its accompli shment can be made without injustice to anyone, and may therefore be retained, and even applied in alms.

P. 8;), 1. 28. pomt . . . aucune. Cf. Haase, § 102, A.

P. 90, 1. 25. si on n'a pas fait Vactiofi, etc. We are hère concemed with what Roman Law calls " condictio ob turpem causam," i.e.

action to recover money paid for a disgracefui purpose. And Molina was right to say " Distinguendum ". There were (and are) cases when the receiver of money so bestowed is not bound to restore it. If he alone is turpis, and the gift is made in innocence or ignorance, it is recoverable. But if both parties are turpes, then the principle in pari delicto melior est conditio possidentis cornes into play, and the receiver is not bound to restore. Both being rogues, the law allows the receiver to keep vfhat he bas. Cases bave been decided according to this principle even in English law. The main authorities on "turpis causa" are Cod. Just., iv., 7 and 9 ; Digest., xii., 5.

P. 91, 1. 5. Qu'un Juge, etc. On this and the other instances of turpitudo, cf. Nicole's notes i., ii., iii., to this Letter.

P. 91, 1. 14. Un homme qui se mesle de deviner. Astrology and Magic although condemned by the Church were patronized even by kings in the seventeenth century. Henri IV. sent for the astrologer Larivière when Louis XIII. was born ; and when Anne of Austria was brought to bed of Louis XIV., the astrologer, Morin, was hidden in the room to draw the horoscope.

P. 91, 1. 16. ce qu'il vous plaira . . . ce qui me plaira. Cf. Haase, § 35, G, Rem. I.

P. 91, 1. 21, Sanchez. Tomâs Sanchez. See above, note on p. 49, 1. 18. Sanchez compares the magician who contents himself with astrology to a physician who does not bring into play ail the resources of his art. Cf. Molinier, ad loc.

P. 93, 1. 13. Conjurons . . . ceux qui blasment. Pascal generalizes a particular apostrophe to Petrus Aurelius (Saint-Cyran) against whom Cellot was writing : " Amabo te, Petre Aureli, tu qui dives es et nullius eger, ne, per Christi viscera pauperibus invide librum unum, quem ipsis aeterna Dei electio, Sanguis Christi comparavit ".

P. 93, 1. 37. oublié à. Cf. Haase, § 124, 1», B.