posely from that simplicitie, takinge aduauntage of a sentence or worde, whiche mought be ambiguous or doubtefull, or in some thinge either superfluous or lackinge in the bargaine or promise, where he certainly knoweth the trouthe to be otherwise, this in myne opinion is damnable fraude, beinge as playne agayne Justice as if it were enforced by violence. Finally all disceyte and dissimulation, in the opinion of them whiche exactely honoure iustyce, is nerre to dispraise than commendation, all though that therof mought ensue some thinge that were good. For in vertue may be nothing fucated or counter

or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him; in every such case there is a positive fraud in the truest sense of the terms. There is an evil act with an evil intent : dolum malum ad circumveniendum. And the misrepresentation may be as well by deeds or acts, as by words; by artifices to mislead, as well as by positive assertions. The civil law has well expressed this, when it says, "Dolo malo pactum fit, quotiens circumscribendi alterius causâ, aliud agitur, et aliud agi simulatur." And again, "Dolum malum à se abesse præstare venditor debet, qui non tantum in eo est, qui fallendi causâ obscurè loquitur, sed etiam qui insidiosè obscurè dissimulat."-Story's Eq. Jurisp. vol. i. p. 194, ed. 1870.

• 'Whether the party, thus misrepresenting a material fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false.'- Ibid. p. 195.

The general theory of the law, in regard to acts done and contracts made by parties, affecting their rights and interests is, that in all such cases there must be a free and full consent to bind the parties. Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side. . . And hence it is, that, if consent is obtained by meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.'-Ibid. p. 223.

с

Paley says, 'Pious frauds, as they are improperly enough called, pretended inspirations, forged books, counterfeit miracles, are impositions of a more serious nature. It is possible that they may sometimes, though seldom, have been set up and encouraged, with a design to do good; but the good they aim at, requires that the belief of them should be perpetual, which is hardly possible; and the detertion of the fraud is sure to disparage the credit of all pretensions of the same nature. Christianity has suffered more injury from this cause, than from all other causes put together.'-Mor. Phil. p. 119, ed. 1825.

The dictionaries give no other examples of the use of this word by English writers, but it is constantly found in the best classical authors, and is quite Cice

fayte. But therein is onely the image of veritie, called simplicitie. Wherefore Tulli beinge of the opinion of Antipater the Philosopher saieth, To councell any thynge whiche thou knowest, to the intent that for thyne owne profite thou woldest that another who shall take any damage or benefite therby shulde nat knowe it, is nat the acte of a persone playne or simple, or of a man honest, iuste, or good; but rather of a persone crafty, ungentill, subtille, deceytefull, malicious, and wilie. And after he saieth, That reason requireth that nothing be done by treason, nothing by dissimulation, nothing by disceite. Which he excellently (as he dothe all thinge) afterwarde in a briefe conclusion proueth, sayenge, Nature is the fountayne wherof the lawe springeth, and it is accordinge to nature no man to do that wherby he shulde take (as it were) a praye of a nother mannes ignoraunce. Of this matter Tulli writeth many propre examples and quicke solutions.

But nowe here I make an ende to wrytte any more at this tyme of fraude, whiche by no meanes may be ioyned to the vertue named iustyce.

ronian.

The following is a good instance of the way in which it was employed by the latter Secerni autem blandus amicus à vero, et internosci tam potest, adhibitâ diligentiâ, quàm omnia fucata et simulata à sinceris atque veris.'-De Amicit. сар. 25.

▲ Bacon says, 'Truth, which only doth judge itself, teacheth that the inquiry of truth, which is the love-making, or wooing of it-the knowledge of truth, which is the presence of it—and the belief of truth, which is the enjoying of it—is the sovereign good of human nature.'-Essays, p. 2, ed. 1857.

Neque enim id est celare, quicquid reticeas: sed cum, quod tu scias, id ignorare emolumenti tui causâ velis eos, quorum intersit id scire. Hoc autem celandi genus quale sit, et cujus hominis, quis non videt? Certe non aperti, non simplicis, non ingenui, non justi, non viri boni; versuti potiùs, obscuri, astuti, fallacis, malitiosi, callidi, veteratoris, vafri.'-Cic. de Off. lib. iii, cap. 13.

'Ratio igitur postulat, ne quid insidiosè, ne quid simulatè, ne quid fallaciter.' -De Off. lib. iii. cap. 17.

a Ex quo intelligitur, quoniam juris natura fons sit, hoc secundum naturam esse, neminem id agere, ut ex alterius prædetur inscientiâ.'-De Off. lib. iii. cap. 17.

• Paley adopts Cicero's doctrine in its full extent, as a duty of moral and religious obligation. He says, 'The rule of justice, which wants with most anxiety to

CHAPTER V.

That iustyce aught to be betwene enemyes.

SUCHE is the excellencie of this vertue iustice, that the practise therof hathe nat onely optayned digne commendation of such persones as betwene whome hathe ben mortall hostilitie, but also it hath extincte often tymes the same hostilitie. And fierce hartes of mutuall enemyes hathe ben therby rather subdued than by armure or strength of people. As it shall appere by examples ensuynge.

Whan the valyaunt kynge Pyrrus warred moste asprely againe the Romanes, one Timochares, whose sonne was yoman for the mouthe with the kynge, promysed to Fabricius, thanne beinge consull, to sle kynge Pyrrus, whiche thinge beinge to the senate reported, they by their ambassade warned the kynge to be ware of suche maner of trayson, sayenge that the Romanes maintayned their warres with armes and nat with poyson. And yet nat withstandynge they discouered nat the name of Timochares, so that they embraced equitie as well in that that they slewe nat their enemye by treason, as also that they betraied nat him whiche purbe inculcated in the making of bargains, is, that the seller is bound in conscience to disclose the faults of what he offers to sale. Amongst other methods of proving this, one may be the following: I suppose it will be allowed that to advance a. direct falsehood in recommendation of our wares, by ascribing to them some quality which we know that they have not, is dishonest. Now compare with this the designed concealment of some fault, which we know that they have. The motives and the effects of actions are the only points of comparison, in which their moral quality can differ; but the motive in these two cases is the same, viz., to procure a higher price than we expect otherwise to obtain the effect, that is, the prejudice to the buyer, is also the same; for he finds himself equally out of pocket by his bargain, whether the commodity, when he gets home with it, turn out worse than he had supposed, by the want of some quality which he expected, or the discovery of some fault which he did not expect. If therefore actions be the same, asto all moral purposes, which proceed from the same motives, and produce the same effects; it is making a distinction without a difference, to esteem it a cheat to magnify beyond the truth the virtues of what we have to sell, but none to conceal its faults.'-Moral Philos. p. 95.

:

Timochares Ambraciensis Fabricio consuli pollicitus est, "se Pyrrhum

224

posed them kyndnes. In so moche was iustice of olde tyme estemed, that without it none acte was alowed were it neuer so noble or profitable.

What tyme that Xerxes, kynge of Persia, with his army, was expulsed out of Greece, all the nauye of Lacedemonia laye at rode in an hauen called Gytheum, within the dominion of the Atheniensis. Themistocles, one of the princes of Athenes, a moche noble capitayne, said unto the people that he had aduised him selfe of an excellent counsayle, where unto if fortune inclyned, nothinge mought more augment the powar of the Atheniensis, but that it aught nat to be diuulgate or publisshed: he therfore desired to haue one appointed unto him, unto whome he mought secretely discouer the enterprise. Where upon there was assigned unto him one Aristides, who for his vertue was surnamed rightwise. Themistocles declared to him that his purpose was to put fire in the nauie of the Lacedemones, whiche laye at Gytheum, to the intent that it beinge brenned, the dominion and hole powar ouer the see shulde be onely in the Atheniensis. This deuise herde and perceyued, Aristides commynge before the people sayde that the counsayle of Themistocles was very profitable, but the enThe people terprise was dishonest and agayne iustice.a

veneno per filium suum, qui potionibus ejus præerat, necaturum." Ea res cum ad senatum esset delata, missis legatis Pyrrhum monuit, "ut adversus hujus generis insidias cautius se gereret:" memor Urbem à filio Martis conditam armis bella non venenis gerere debere. Timocharis autem nomen suppressit, utroque modo æquitatem amplexus: quia nec hostem malo exemplo tollere, neque eum, qui bene mereri paratus fuerat, prodere voluit.'-Val. Max. lib. vi. cap. 5, § I. The story is told also by Aulus Gellius, lib. iii. cap. 8, and Plutarch, who however merely calls him τοῦ Πύῤῥου ἰατρὸς.

Themistocles, post victoriam ejus belli quod cum Persis fuit, dixit in concione, Postulavit, se habere consilium reipublicæ salutare, sed id sciri opus non esse.

ut aliquem populus daret, quicum communicaret : datus est Aristides. Huic ille, classem Lacedæmoniorum, quæ subducta esset ad Gytheum, clam incendi posse; Quod Aristides cum quo facto frangi Lacedæmoniorum opes necesse esset. audisset, in concionem magnâ expectatione venit; dixitque, perutile esse consi lium, quod Themistocles afferret, sed minimè honestum. Itaque Athenienses, quod honestum non esset, id ne utile quidem putaverunt : totamque eam rem,

heringe that the acte was nat honest or iuste, all cryed with. one voyce, nor yet expedient. And furthwith they commaunded Themistocles to cesse his enterprise. Wherby this noble people declared that in euery acte speciall regarde and, aboue all thinge, consideration aught to be had of iustyce and honestie.

CHAPTER VI.

Of faythe or fidelitie, called in latyne Fides whiche is the fundation of iustyce.

THAT whiche in latyne is called Fides, is a parte of iustice and may diuersely be interpreted, and yet finally it tendeth to one purpose in effecte. Some tyme it may be called faythe, some tyme credence, other whyles truste. Also in a frenche terme it is named loyaltie. And to the imitation of latyne it

quam ne audierant quidem, auctore Aristide, repudiaverunt.'-Cic. de Off. lib. iii. cap. 11. Hume, who quotes this story as illustrating the influence of the imagination, says, 'A late celebrated historian (M. Rollin) admires this passage of ancient history as one of the most singular that is anywhere to be met with. "Here," says he, "they are not philosophers, to whom 'tis easy in their schools to establish the finest maxims and most sublime rules of morality, who decide that interest ought never to prevail above justice. 'Tis a whole people interested in the proposal which is made to them, who consider it as of importance to the public good, and who, notwithstanding, reject it unanimously, and without hesitation, merely because it is contrary to justice." For my part I see nothing so extraordinary in this proceeding of the Athenians. The same reasons which render it so easy for philosophers to establish these sublime maxims, tend, in part, to diminish the merit of such a conduct in that people. Philosophers never balance betwixt profit and honesty, because their decisions are general, and neither their passions nor imaginations are interested in the objects. And though, in the present case, the advantage was immediate to the Athenians, yet as it was known only under the general notion of advantage, without being conceived by any particular idea, must have had a less considerable influence on their imaginations, and have been a less violent temptation, than if they had been acquainted with all its circumstances; otherwise 'tis difficult to conceive, that a whole people, unjust and violent as men commonly are, should so unanimously have adhered to justice, and rejected any considerable advantage.'-Philosoph. Works, vol. ii. p. 181, ed. 1826.