he assigned to euery of them the boundes that they them selfes had appointed. And all that lande, whiche was lefte in the middes, he adiuged it to the senate and people of Rome. That maner of dealinge (saieth Tulli) is to disceiue and nat to gyue iugement. And verely euery good man will thinke that this lacke of iustice in Fabius, beinge a noble man and well lerned, was a great reproche to his honour. b racies. It was a notable rebuke unto the Israhelites that whan they besieged the Gabaonites (a people of Chanani) Fraudein they in conclusion receyued them in to a perpetuall confede leage. But after that the Gabaonites had yelded them, the Jewes perceyuinge that they were restrayned by their. othe to slee them or cruelly entreate them, they made of the Gabaonites, beinge their confederates, their skullions and drudges; wherwith all mighty god was no thinge con and perfecting of this Reformation? For these appear unto us like unto the Batable ground lying betwixt England and Scotland (whilest as yet two distinct kingdomes) in so dubious a posture, it is hard to say to which side they do belong.' -Worthies of England, p. 40, ed. 1662. * 'Ne noster quidem probandus, si verum est, Q. Fabium Labeonem, seu quem alium, (nihil enim præter auditum habeo) arbitrum Nolanis et Neapolitanis de finibus à senatu datum, cum ad locum venisset, cum utrisque separatim locutum, ut ne cupidè quid agerent, ne appetenter, atque ut regredi quàm progredi mallent. Id cum utrique fecissent, aliquantum agri in medio relictum est. Itaque illorum fines, sicut ipsi dixerant, terminavit in medio relictum quod erat, populo Romano adjudicavit. Decipere hoc quidem est, non judicare.'-Cic. de Off. lib. i. cap. 10. See Joshua ix. 15. : • See Joshua ix. 27. The first of these words seems to be merely an Anglicised form of the French word souillon. M. Lacombe in his Dictionnaire du vieux langage François mentions the word sculier, which he explains as officier qui a soin de la vaisselle et des plats.' The word is used by Shakspeare in Hamlet 'And fall a cursing, like a very drab ! A scullion! fye upon 't.'-Act ii. sc. 2. In Huloet's Dictionary, published in 1572, we find, Drudge, or drugge, or vile seruaunt in a house, whiche doth all the vyle seruice,' and souillon given as the French equivalent. Brende, in his translation of Quintus Curtius, lib. x. cap. 1, says, 'They added besydes that suche mariners as caried the merchauntes, and the drudges of tharmye, through couetousnes of the gold which had bene reported unto them, landed in the Iland and were neuer seene after.'-Fo. 207, ed. 1561. Simplicitie tented. For the leage or truce wherein frendship and libertie was intended (whiche caused the Gabaonites to be yolden1) was nat duely obserued, whiche was clerely agayne Justice. Trewely in euery couenaunt, bargayne, or promise aught to be a simplicitie, that is to saye, one playne understandinge or meaning betwene the parties. And that simplicitie is properly iustice. And where any man of a couaytous or malicious minde will digressed purChaucer has the phrase 'To drugge and drawe,' which seems to be closely allied with the substantive. in couenant or promise. There seems to be some confusion of thought here, and probably the author had in his mind the account of the famine given in 2 Sam. xxi., which is there stated to have been sent as a judgment on the land for Saul's cruelty to the Gibeonites, but, as Mr. Scott says, in his notes on the chapter referred to, the history of Saul gives no account of the transaction which was declared to be the cause of this calamity. This participial form of the verb to yield is not uncommon with early English writers. Thus Chaucer in The Knighte's Tale says And glader ought his freend ben of his deth, And again in The Romaunt of the Rose Poet. Works, vol. ii. p. 94, ed. 1866. 'Curtesie certeyn dide he me, So mych that may not yolden be.' Ubi supra, vol. vi. p. 139. And Fabyan in his account of Britain says, 'In this while the hunger encreased, and the people were so ouersette with their enemies, that manye of them were as yelden, and tooke partie againe their owne neighboures.'— Chronicle, vol. i. p. 62, ed. 1559. c It is a rule in Equity that all the material facts must be known to both parties to render the agreement fair and just in all its parts. And it is against all the principles of Equity that one party knowing a material ingredient in an agreement should be permitted to suppress it and still call for a specific performance.'Kent's Comment. p. 490, 4th ed. Dr. Whewell says, 'The Mutual Understanding of the two parties, at the time of making the promise, is the sense in which it is the Promiser's Duty to fulfil it. This is the right Interpretation of the promise, because the promise expressed and established this Mutual Understanding. If the Promiser, intending deceit to the Promisee, or to other persons, has used expressions with a view to their being misunderstood, he has already violated the Duty of Truth.'-El. of Mor. p. 155. d 'Where the party intentionally or by design misrepresents a material fact, 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. b 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. • 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. cap. 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. ་ dEx 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, as to 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. a Timochares Ambraciensis Fabricio consuli pollicitus est, "se Pyrrhum |