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p303 8 35 Now when we meet with expediency in some specious form or other, we cannot help being influenced by it. But if upon closer inspection one sees that there is some immorality connected with what presents the appearance of expediency, then one is not necessarily to sacrifice expediency but to recognize that there can be no expediency where there is immorality. But if there is nothing so repugnant to Nature as immorality (for Nature demands right and harmony and consistency and abhors their opposites), and if nothing is so thoroughly in accord with Nature as expediency, then surely expediency and immorality cannot coexist in one and the same object.
Again: if we are born for moral rectitude and if that is either the only thing worth seeking, as Zeno thought, or at least to be esteemed as infinitely outweighing everything else, as Aristotle holds, then it necessarily follows that the morally right is either the sole good or the supreme good. Now, that which is good is certainly expedient; consequently, that which is morally right is also expedient.
36 Thus it is the error of men who are not strictly upright to seize upon something that seems to be expedient and straightway to dissociate that from the question of moral right. To this error the assassin's dagger, the poisoned cup, the forged wills owe their origin; this gives rise to theft, embezzlement of public funds, exploitation and plundering of provincials and citizens; this engenders also the lust for excessive wealth, for despotic power, and finally for making oneself king even in the midst of a free people; and anything more atrocious or repulsive than such a passion cannot be conceived. For p305 with a false perspective they see the material rewards but not the punishment — I do not mean the penalty of the law, which they often escape, but the heaviest penalty of all, their own demoralization.
37 Away, then, with questioners of this sort (for their whole tribe is wicked and ungodly), who stop to consider whether to pursue the course which they see is morally right or to stain their hands with what they know is crime. For there is guilt in their very deliberation, even though they never reach the performance of the deed itself. Those actions, therefore, should not be considered at all, the mere consideration of which is itself morally wrong. Furthermore, in any such consideration we must banish any vain hope and thought that our action may be covered up and kept secret. For if we have only made some real progress in the study of philosophy, we ought to be quite convinced that, even though we may escape the eyes of gods and men, we must still do nothing that savours of greed or of injustice, of lust or of intemperance.
9 38 By way of illustrating this truth Plato introduces the familiar story of Gyges: Once upon a time the earth opened in consequence of heavy rains; Gyges went down into the chasm and saw, so the story goes, a horse of bronze; in its side was a door. On opening this door he saw the body of a dead man of enormous size with a gold ring upon his finger. He removed this and put it on his own hand and then repaired to an assembly of the shepherds, for he was a shepherd of the king. As often as he turned the bezel of the ring inwards toward the palm of his hand, he became invisible to everyone, while he himself saw everything; but as often as he turned p307 it back to its proper position, he became visible again. And so, with the advantage which the ring gave him, he debauched the queen, and with her assistance he murdered his royal master and removed all those who he thought stood in his way, without anyone's being able to detect him in his crimes. Thus, by virtue of the ring, he shortly rose to be king of Lydia.
Now, suppose a wise man had just such a ring, he would not imagine that he was free to do wrongly any more than if he did not have it; for good men aim to secure not secrecy but the right.
39 And yet on this point certain philosophers, who are not at all vicious but who are not very discerning, declare that the story related by Plato is fictitious and imaginary. As if he affirmed that it was actually true or even possible! But the force of the illustration of the ring is this: if nobody were to know or even to suspect the truth, when you do anything to gain riches or power or sovereignty or sensual gratification — if your act should be hidden for ever from the knowledge of gods and men, would you do it? The condition, they say, is impossible. Of course it is. But my question is, if that were possible which they declare to be impossible, what, pray, would one do? They press their point with right boorish obstinacy, they assert that it is impossible and insist upon it; they refuse to see the meaning of my words, "if possible." For when we ask what they would do, if they could escape detection, we are not asking whether they can escape detection; but we put them as it were upon the rack: should they answer that, if impunity were assured, they would do what was most to their selfish interest, p309 that would be a confession that they are criminally minded; should they say that they would not do so they would be granting that all things in and of themselves immoral should be avoided.
But let us now return to our theme.
10 40 Many cases oftentimes arise to perplex our minds with a specious appearance of expediency: the question raised in these cases is not whether moral rectitude is to be sacrificed to some considerable advantage (for that would of course be wrong), but whether the apparent advantage can be secured without moral wrong. When Brutus deposed his colleague Collatinus from the consular office, his treatment of him might have been thought unjust; for Collatinus had been his associate, and had helped him with word and deed in driving out the royal family. But when the leading men of the state had determined that all the kindred of Superbus and the very name of the Tarquins and every reminder of the monarchy should be obliterated, then the course that was expedient — namely, to serve the country's interests — was so pre-eminently right, that it was even Collatinus's own duty to acquiesce in its justice. And so expediency gained the day because of its moral rightness; for without moral rectitude there could have been no possible expediency.
Not so in the case of the king1 who founded the city: 41 it was the specious appearance of expediency that actuated him; and when he decided that it was more expedient for him to reign alone than to share the throne with another, he slew his brother.2 He threw to the winds his brotherly affection and his human feelings, to secure what seemed to him — but was not — expedient; and yet in defence of his deed p311 he offered the excuse about his wall — a specious show of moral rectitude, neither reasonable nor adequate at all. He committed a crime, therefore, with due respect to him let me say so, be he Quirinus or Romulus.3
42 And yet we are not required to sacrifice our own interest and surrender to others what we need for ourselves, but each one should consider his own interests, as far as he may without injury to his neighbour's. "When a man enters the foot-race," says Chrysippus with his usual aptness, "it is his duty to put forth all his strength and strive with all his might to win; but he ought never with his foot to trip, or with his hand to foul a competitor. Thus in the stadium of life, it is not unfair for anyone to seek to obtain what is needful for his own advantage, but he has no right to wrest it from his neighbour."
43 It is in the case of friendships, however, that men's conceptions of duty are most confused; for it is a breach of duty either to fail to do for a friend what one rightly can do, or to do for him what is not right. But for our guidance in all such cases we have a rule that is short and easy to master: apparent advantages — political preferment, riches, sensual pleasures, and the like — should never be preferred to the obligations of friendship. But an upright man will never for a friend's sake do anything in violation of his country's interests or his oath or his sacred honour, not even if he sits as judge in a friend's case; for he lays aside the rôle of friend when he assumes that of judge. Only so far will he make concessions to friendship, that he will prefer his friend's side to be the juster one and that he will set the time for presenting his case, as far as the p313 laws will allow, to suit his friend's convenience. 44 But when he comes to pronounce the verdict under oath, he should remember that he has God as his witness — that is, as I understand it, his own conscience, than which God himself has bestowed upon man nothing more divine. From this point of view it is a fine custom that we have inherited from our forefathers (if we were only true to it now), to appeal to the juror with this formula — "to do what he can consistently with his sacred honour." This form of appeal is in keeping with what I said a moment ago would be morally right for a judge to concede to a friend. For supposing that we were bound to everything that our friends desired, such relations would have to be accounted not friendships but conspiracies. 45 But I am speaking here of ordinary friendships; for among men who are ideally wise and perfect such situations cannot arise.
They say that Damon and Phintias, of the Pythagorean school, enjoyed such ideally perfect friendship, that when the tyrant Dionysius had appointed a day for the executing of one of them, and the one who had been condemned to death requested a few days' respite for the purpose of putting his loved ones in the care of friends, the other became surety for his appearance, with the understanding that his friend did not return, he himself should be put to death. And when the friend returned on the day appointed, the tyrant in admiration for their faithfulness begged that they would enrol him as a third partner in their friendship.
46 Well then, when we are weighing what seems to be expedient in friendship against what is morally right, let apparent expediency be disregarded and p315 moral rectitude prevail; and when in friendship requests are submitted that are not morally right, let conscience and scrupulous regard for the right take precedence of the obligations of friendship. In this way we shall arrive at a proper choice between conflicting duties — the subject of this part of our investigation.
11 Through a specious appearance of expediency wrong is very often committed in transactions between state and state, as by our own country in the destruction of Corinth. A more cruel wrong was perpetrated by the Athenians in decreeing that the Aeginetans, whose strength lay in their navy, should have their thumbs cut off. This seemed to be expedient; for Aegina was too grave a menace, as it was close to the Piraeus. But no cruelty can be expedient; for cruelty is most abhorrent to human nature, whose lead we ought to follow. 47 They, too, do wrong who would debar foreigners from enjoying the advantages of their city and would exclude them from its borders, as was done by Pennus in the time of our fathers, and in recent times by Papius.a It may not be right, of course, for one who is not a citizen to exercise the rights and privileges of citizenship; and the law on this point was secured by two of our wisest consuls, Crassus and Scaevola. Still, to debar foreigners from enjoying the advantages of the city is altogether contrary to the laws of humanity.
There are splendid examples in history where the apparent expediency of the state has been set at naught out of regard for moral rectitude. Our own country has many instances to offer throughout her history, and especially in the Second Punic War, p317 when news came of the disaster at Cannae, Rome displayed a loftier courage than ever she did in success; never a trace of faint-heartedness, never a mention of making terms. The influence of moral right is so potent, at it eclipses the specious appearance of expediency.
48 When the Athenians could in no way stem the tide of the Persian invasion and determined to abandon their city, bestow their wives and children in safety at Troezen, embark upon their ships, and fight on the sea for the freedom of Greece, a man named Cyrsilus proposed that they should stay at home and open the gates of their city to Xerxes. They stoned him to death for it. And yet he was working for what he thought was expediency; but it was not — not at all, for it clashed with moral rectitude.
49 After the victorious close of that war with Persia, Themistocles announced in the Assembly that he had a plan for the welfare of the state, but that it was not politic to let it be generally known. He requested the people to appoint someone with whom he might discuss it. They appointed Aristides. Themistocles confided to him that the Spartan fleet, which had been hauled up on shore at Gytheum, could be secretly set on fire; this done, the Spartan power would inevitably be crushed. When Aristides heard the plan, he came into the Assembly amid the eager expectation of all and reported that the plan proposed by Themistocles was in the highest degree expedient, but anything but morally right. The result was that the Athenians concluded that what was not morally right was likewise not expedient, and at the instance of Aristides they rejected the p319 whole proposition without even listening to it. Their attitude was better than ours; for we let pirates go scot free, while we make our allies pay tribute.4
12 Let it be set down as an established principle, then, that what is morally wrong can never be expedient — not even when one secures by means of it that which one thinks expedient; for the mere act of thinking a course expedient, when it is morally wrong, is demoralizing. 50 But, as I said above, cases often arise in which expediency may seem to clash with moral rectitude; and so we should examine carefully and see whether their conflict is inevitable or whether they may be reconciled. The following are problems of this sort: suppose, for example, a time of dearth and famine at Rhodes, with provisions at fabulous prices; and suppose that an honest man has imported a large cargo of grain from Alexandria and that to his certain knowledge also several other importers have set sail from Alexandria, and that on the voyage he has sighted their vessels laden with grain and bound for Rhodes; is he to report the fact to the Rhodians or is he to keep his own counsel and sell his own stock at the highest market price? I am assuming the case of a virtuous, upright man, and I am raising the question how a man would think and reason who would not conceal the facts from the Rhodians if he thought that it was immoral to do so, but who might be in doubt whether such silence would really be immoral.
51 In deciding cases of this kind Diogenes of Babylonia, a great and highly esteemed Stoic, consistently holds one view; his pupil Antipater, a most profound scholar, holds another. According to Antipater all the facts should be disclosed, that the buyer may p321 not be uninformed of any detail that the seller knows; according to Diogenes the seller should declare any defects in his wares, in so far as such a course is prescribed by the common law of the land; but for the rest, since he has goods to sell, he may try to sell them to the best possible advantage, provided he is guilty of no misrepresentation.
"I have imported my stock," Diogenes's merchant will say; "I have offered it for sale; I sell at a price no higher than my competitors — perhaps even lower, when the market is overstocked. Who is wronged?"
52 "What say you?" comes Antipater's argument on the other side; "it is your duty to consider the interests of your fellow-men and to serve society; you were brought into the world under these conditions and have these inborn principles which you are in duty bound to obey and follow, that your interest shall be the interest of the community and conversely that the interest of the community shall be your interest as well; will you, in view of all these facts, conceal from your fellow-men what relief in plenteous supplies is close at hand for them?"
"It is one thing to conceal," Diogenes will perhaps reply; not to reveal is quite a different thing. At this present moment I am not concealing from you, even if I am not revealing to you, the nature of gods or the highest good; and to know these secrets would be of more advantage to you than to know that the price of wheat was down. But I am under no obligation to tell you everything that it may be to your interest to be told."
53 "Yea," Antipater will say, "but you are, as you must admit, if you will only bethink you of the p323 bonds of fellowship forged by Nature and existing between man and man."
"I do not forget them," the other will reply: but do you mean to say that those bonds of fellowship are such that there is no such thing as private property? If that is the case, we should not sell anything at all, but freely give everything away."
13 In this whole discussion, you see, no one says, "However wrong morally this or that may be, still, since it is expedient, I will do it"; but the one side asserts that a given act is expedient, without being morally wrong, while the other insists that the act should not be done, because it is morally wrong.
54 Suppose again that an honest man is offering a house for sale on account of certain undesirable features of which he himself is aware but which nobody else knows; suppose it is unsanitary, but has the reputation of being healthful; suppose it is not generally known that vermin are to be found in all the bedrooms; suppose, finally, that it is built of unsound timber and likely to collapse, but that no one knows about it except the owner; if the vendor does not tell the purchaser these facts but sells him the house for far more than he could reasonably have expected to get for it, I ask whether his transaction is unjust or dishonourable.
55 "Yes," says Antipater, "it is; for to allow a purchaser to be hasty in closing a deal and through mistaken judgment to incur a very serious loss, if this is not refusing 'to set a man right when he has lost his way' (a crime which at Athens is prohibited on pain of public execration), what is? It is even p325 worse than refusing to set a man on his way: it is deliberately leading a man astray."
"Can you say," answers Diogenes, "that he compelled you to purchase, when he did not even advise it? He advertised for sale what he did not like; you bought what you did like. If people are not considered guilty of swindling when they place upon their placards For Sale: A Fine Villa, Well Built, even when it is neither good nor properly built, still less guilty are they who say nothing in praise of their house. For there the purchaser may exercise his own judgment, what fraud can there be on the part of the vendor? But if, again, not all that is expressly stated has to be made good, do you think a man is bound to make good what has not been said? What, pray, would be more stupid than for a vendor to recount all the faults in the article he is offering for sale? And what would be so absurd as for an auctioneer to cry, at the owner's bidding, 'Here is an unsanitary house for sale'?"
56 In this way, then, in certain doubtful cases moral rectitude is defended on the one side, while on the other side the case of expediency is so presented as to make it appear not only morally right to do what seems expedient, but even morally wrong not to do it. This is the contradiction that seems often to arise between the expedient and the morally right. But I must give my decision in these two cases; for I did not propound them merely to raise the questions, but to offer a solution. 57 I think, then, that it was the duty of that grain-dealer not to keep back the facts from the Rhodians, and of this vendor of the house to deal in the same way with his purchaser. The fact is that merely holding one's peace about a p327 thing does not constitute concealment, but concealment consists in trying for your own profit to keep others from finding out something that you know, when it is for their interest to know it. And who fails to discern what manner of concealment that is and what sort of person would be guilty of it? At all events he would be no candid or sincere or straightforward or upright or honest man, but rather one who is shifty, sly, artful, shrewd, underhand, cunning, one grown old in fraud and subtlety. Is it not inexpedient to subject oneself to all these terms of reproach and many more besides?
14 58 If, then, they are to be blamed who suppress the truth, what are we to think of those who actually state what is false? Gaius Canius, a Roman knight, a man of considerable wit and literary culture, once went to Syracuse for a vacation, as he himself used to say, and not for business. He gave out that he had a mind to purchase a little country seat, where he could invite his friends and enjoy himself, uninterrupted by troublesome visitors. When this fact was spread abroad, one Pythius, a banker of Syracuse, informed him that he had such an estate; that it was not for sale, however, but Canius might make himself at home there, if he pleased; and at the same time he invited him to the estate to dinner next day. Canius accepted. Then Pythius, who, as might be expected of a moneylender, could command favours of all classes, called the fishermen together and asked them to do their fishing the next day out in front of his villa, and told them what he wished them to do. Canius came to dinner at the appointed hour; Pythius had a sumptuous banquet prepared; there was a whole p329 fleet of boats before their eyes; each fisherman brought in in turn the catch that he had made; and the fishes were deposited at the feet of Pythius.
59 "Pray, Pythius," said Canius thereupon, "what does this mean? — all these fish? — all these boats?"
"No wonder," answered Pythius; "this is where all the fish in Syracuse are; here is where the fresh water comes from; the fishermen cannot get along without this estate."
Inflamed with desire for it, Canius insisted upon Pythius's selling it to him. At first he demurred. To make a long story short, Canius gained his point. The man was rich, and, in his desire to own the country seat, he paid for it all that Pythius asked; and he bought the entire equipment, too. Pythius entered the amount upon his ledger and completed the transfer. The next day Canius invited his friends; he came early himself. Not so much as a thole-pin was in sight. He asked his next-door neighbour whether it was a fishermen's holiday, for not a sign of them did he see.
"Not so far as I know," said he; "but none are in the habit of fishing here. And so I could not make out what was the matter yesterday."
60 Canius was furious; but what could he do? For not yet had my colleague and friend, Gaius Aquilius, introduced the established form to apply to criminal fraud. When asked what he meant by "criminal fraud," as specified in these forms, he could reply: "Pretending one thing and practising another" — a very felicitous definition, as one might expect from an expert in making them. Pythius, therefore, and all others who do one thing while they pretend another are faithless, dishonest, and unprincipled p331 scoundrels. No act of theirs can be expedient, when what they do is tainted with so many vices.
15 61 But if Aquilius's definition is correct, pretence and concealment should be done away with in all departments of our daily life. Then an honest man will not be guilty of either pretence or concealment in order to buy or to sell to better advantage. Besides, your "criminal fraud" had previously been prohibited by the statutes: the penalty in the matter of trusteeships, for example, is fixed by the Twelve Tables; for the defrauding of minors, by the Plaetorian law.b The same prohibition is effective, without statutory enactment, in equity cases, in which it is added that the decision shall be "as good faith requires."5 In all other cases in equity, moreover, the following phrases are most noteworthy: in a case calling for arbitration in the matter of a wife's dowry: what is "the fairer is the better"; in a suit for the restoration of a trust: "honest dealing, as between honest parties." Pray, then, can there be any element of fraud in what is adjusted for the "better and fairer"? Or can anything fraudulent or unprincipled be done, when "honest dealing between honest parties" is stipulated? But "criminal fraud," as Aquilius says, consists in false pretence. We must, therefore, keep misrepresentation entirely out of business transactions: the seller will not engage a bogus bidder to run prices up nor the buyer one to bid low against himself to keep them down; and each, if they come to naming a price, will state once for all what he will give or take. 62 Why, when Quintus Scaevola, the son of Publius Scaevola, asked that the price of a farm that he desired to purchase be definitely named and the p333 vendor named it, he replied that he considered it worth more, and paid him 100,000 sesterces over and above what he asked. No one could say that this was not the act of an honest man; but people do say that it was not the act of a worldly-wise man, any more than if he had sold for a smaller amount than he could have commanded. Here, then, is that mischievous idea — the world accounting some men upright, others wise; and it is this fact that gives Ennius occasion to say:
"In vain is the wise man wise, who cannot benefit himself."
And Ennius is quite right, if only he and I were agreed upon the meaning of "benefit."
63 Now I observe that Hecaton of Rhodes, a pupil of Panaetius, says in his books on "Moral Duty" dedicated to Quintus Tubero that "it is a wise man's duty to take care of his private interests, at the same time doing nothing contrary to the civil customs, laws, and institutions. But that depends on our purpose in seeking prosperity; for we do not aim to be rich for ourselves alone but for our children, relatives, friends, and, above all, for our country. For the private fortunes of individuals are the wealth of the state." Hecaton could not for a moment approve of Scaevola's act, which I cited a moment ago; for he openly avows that he will abstain from doing for his own profit only what the law expressly forbids. Such a man deserves no great praise nor gratitude.
64 Be that as it may, if both pretence and concealment constitute "criminal fraud," there are very few transactions into which "criminal fraud" does p335 not enter; or, if he only is a good man who helps all he can, and harms no one, it will certainly be no easy matter for us to find the good man as thus defined.
To conclude, then, it is never expedient to do wrong, because wrong is always immoral; and it is always expedient to be good, because goodness is always moral.
16 65 In the laws pertaining to the sale of real property it is stipulated in our civil code that when a transfer of any real estate is made, all its defects shall be declared as far as they are known to the vendor. According to the laws of the Twelve Tables it used to be sufficient that such faults as had been expressly declared should be made good and that for any flaws which the vendor expressly denied, when questioned, he should be assessed double damages. A like penalty for failure to make such declaration also has now been secured by our jurisconsults: they have decided that any defect in a piece of real estate, if known to the vendor but not expressly stated, must be made good by him. 66 For example, the augurs were proposing to take observations from the citadel and they ordered Tiberius Claudius Centumalus, who owned a house upon the Caelian Hill, to pull down such parts of the building as obstructed the augurs' view by reason of their height. Claudius at once advertised his block for sale, and Publius Calpurnius Lanarius bought it. The same notice was served also upon him. And so, when Calpurnius had pulled down those parts of the building and discovered that Claudius had advertised it for sale only after the augurs had ordered them to be pulled down, he summoned the former owner before a court p337 of equity to decide "what indemnity the owner was under obligation 'in good faith' to pay and deliver to him." The verdict was pronounced by Marcus Cato, the father of our Cato (for as other men receive a distinguishing name from their fathers, so he who bestowed upon the world so bright a luminary must have his distinguishing name from his son); he, as I was saying, was presiding judge and pronounced the verdict that "since the augurs' mandate was known to the vendor at the time of making the transfer and since he had not made it known, he was bound to make good the purchaser's loss."
67 With this verdict he established the principle that it was essential to good faith that any defect known to the vendor must be made known to the purchaser. If his decision was right, our grain-dealer and the vendor of the unsanitary house did not do right to suppress the facts in those cases. But the civil code cannot be made to include all cases where facts are thus suppressed; but those cases which it does include are summarily dealt with. Marcus Marius Gratidianus, a kinsman of ours, sold back to Gaius Sergius Orata the house which he himself had bought a few years before from that same Orata. It was subject to an encumbrance, but Marius had said nothing about this fact in stating the terms of sale. The case was carried to the courts. Crassus was counsel for Orata; Antonius was retained by Gratidianus. Crassus pleaded the letter of the law that "the vendor was bound to make good the defect, for he had not declared it, although he was aware of it"; Antonius laid stress upon the equity of the case, leading that, "inasmuch as the defect in question had not been unknown to Sergius (for it was the p339 same house that he had sold to Marius), no declaration of it was needed, and in purchasing it back he had not been imposed upon, for he knew to what legal liability his purchase was subject.
68 What is the purpose of these illustrations? To let you see that our forefathers did not countenance sharp practice.
17 Now the law disposes of sharp practices in one way, philosophers in another: the law deals with them as far as it can lay its strong arm upon them; philosophers, as far as they can be apprehended by reason and conscience. Now reason demands that nothing be done with unfairness, with false pretence, or with misrepresentation. Is it not deception, then, to set snares, even if one does not mean to start the game or to drive it into them? Why, wild creatures often fall into snares undriven and unpursued. Could one in the same way advertise a house for sale, post up a notice "To be sold," like a snare, and have somebody run into it unsuspecting?
69 Owing to the low ebb of public sentiment, such a method of procedure, I find, is neither by custom accounted morally wrong nor forbidden either by statute or by civil law; nevertheless it is forbidden by the moral law. For there is a bond of fellowship — although I have often made this statement, I must still repeat it again and again — which has the very widest application, uniting all men together and each to each. This bond of union is closer between those who belong to the same nation, and more intimate still between those who are citizens of the same city-state. It is for this reason that our forefathers chose to understand one thing by the universal law and another by the civil law. The p341 civil law is not necessarily also the universal law; but the universal law ought to be also the civil law. But we possess no substantial, life-like image of true Law and genuine Justice; a mere outline sketch is all that we enjoy. I only wish that we were true even to this; for, even as it is, it is drawn from the excellent models which Nature and Truth afford. 70 For how weighty are the words: "That I be not deceived and defrauded through you and my confidence in you"! How precious are these "As between honest people there ought to be honest dealing, and no deception"! But who are "honest people," and what is "honest dealing" — these are serious questions.
It was Quintus Scaevola, the pontifex maximus, who used to attach the greatest importance to all questions of arbitration to which the formula was appended "as good faith requires"; and he held that the expression "good faith" had a very extensive application, for it was employed in trusteeships and partnerships, in trusts and commissions, in buying and selling, in hiring and letting — in a word, in all the transactions on which the social relations of daily life depend; in these, he said, it required a judge of great ability to decide the extent of each individual's obligation to the other, especially when the counter-claims were admissible in most cases.
71 Away, then, with sharp practice and trickery, which desires, of course, to pass for wisdom, but is far from it and totally unlike it. For the function of wisdom is to discriminate between good and evil; whereas, inasmuch as all things morally wrong are evil, trickery prefers the evil to the good.
p343 It is not only in the case of real estate transfers that the civil law, based upon a natural feeling for the right, punishes trickery and deception, but also in the sale of slaves every form of deception on the vendor's part is disallowed. For by the aediles' ruling the vendor is answerable for any deficiency in the slave he sells, for he is supposed to know if his slave is sound, or if he is a runaway, or a thief. The case of those who have just come into the possession of slaves by inheritance is different.
72 From this we come to realize that since Nature is the source of right, it is not in accord with Nature that anyone should take advantage of his neighbour's ignorance. And no greater curse in life can be found than knavery that wears the mask of wisdom. Thence come those countless cases in which the expedient seems to conflict with the right. For how few will be found who can refrain from wrong-doing, if assured of the power to keep it an absolute secret and to run no risk of punishment!
18 73 Let us put our principle to the test, if you please, and see if it holds good in those instances in which, perhaps, the world in general finds no wrong; for in this connection we do not need to discuss cut-throats, poisoners, forgers of wills, thieves, and embezzlers of public moneys, who should be repressed not by lectures and discussions of philosophers, but by chains and prison walls; but let us study here the conduct of those who have the reputation of being honest men.
Certain individuals brought from Greece to Rome a forged will, purporting to be that of the wealthy p345 Lucius Minucius Basilus. The more easily to procure validity for it, they made joint-heirs with themselves two of the most influential men of the day, Marcus Crassus and Quintus Hortensius. Although these men suspected that the will was a forgery, still, as they were conscious of no personal guilt in the matter, they did not spurn the miserable boon procured through the crime of others. What shall we say, then? Is this excuse competent to acquit them of guilt? I cannot think so, although I loved the one while he lived, and do not hate the other now that he is dead. 74 Be that as it may, Basilus had in fact desired that his nephew Marcus Satrius should bear his name and inherit his property, (I refer to the Satrius who is the present patron of Picenum and the Sabine country — and oh, what a shameful stigma it is upon the times!)6 And therefore it was not right that two of the leading citizens of Rome should take the estate and Satrius succeed to nothing except his uncle's name. For if he does wrong who does not ward off and repel injury when he can — as I explained in the course of the First Book — what is to be thought of the man who not only does not try to prevent wrong, but actually aids and abets it? For my part, I do not believe that even genuine legacies are moral, if they are sought after by designing flatteries and by attentions hypocritical rather than sincere.
And yet in such cases there are times when one course is likely to appear expedient and another morally right. 75 The appearance is deceptive; for our standard is the same for expediency and for moral rectitude. And the man who does not accept the truth of this will be capable of any sort of dishonesty, p347 any sort of crime. For if he reasons, "That is, to be sure, the right course, but this course brings advantage," he will not hesitate in his mistaken judgment to divorce two conceptions that Nature has made one; and that spirit opens the door to all sorts of dishonesty, wrong-doing, and crime.
19 Suppose, then, that a good man had such power that at a snap of his fingers his name could steal into rich men's wills, he would not avail himself of that power — no, not even though he could be perfectly sure that no one would ever suspect it. Suppose, on the other hand, that one were to offer a Marcus Crassus the power, by the mere snapping, of his fingers, to get himself named as heir, when he was not really an heir, he would, I warrant you, dance in the forum. But the righteous man, the one whom we feel to be a good man, would never rob anyone of anything to enrich himself. If anybody is astonished at this doctrine, let him confess that he does not know what a good man is. 76 If, on the other hand, anyone should desire to unfold the idea of a good man which lies wrapped up in his own mind,7 he would then at once make it clear to himself that a good man is one who helps all whom he can and harms nobody, unless provoked by wrong. What shall we say, then? Would he not be doing harm who by a kind of magic spell should succeed in displacing the real heirs to an estate and pushing himself into their place? "Well," someone may say, "is he not to do what is expedient, what is advantageous to himself?" Nay, verily; he should rather be brought to realize that nothing that is unjust is either advantageous or expedient; if he does not p349 learn this lesson, it will never be possible for him to be a "good man."
77 When I was a boy, I used to hear my father tell that Gaius Fimbria, an ex‑consul, was judge in a case of Marcus Lutatius Pinthia, a Roman knight of irreproachable character. On that occasion Pinthia had laid a wager to be forfeited "if he did not prove in court that he was a good man." Fimbria declared that he would never render a decision in such a case, for fear that he might either rob a reputable man of his good name, if he decided against him, or be thought to have pronounced someone a good man, when such a character is, as he said, established by the performance of countless duties and the possession of praiseworthy qualities without number.
To this type of good man, then, known not only to a Socrates but even to a Fimbria, nothing can possibly seem expedient that is not morally right. Such a man, therefore, will never venture to think — to say nothing of doing — anything that he would not dare openly to proclaim. Is it not a shame that philosophers should be in doubt about moral questions on which even peasants have no doubts at all? For it is with peasants that the proverb, already trite with age, originated: when they praise a man's honour and honesty, they say, "He is a man with whom you can safely play at odd and even8 in the dark." What is the point of the proverb but this — that what is not proper brings no advantage, even if you can gain your p351 end without anyone's being able to convict you of wrong?
78 Do you not see that in the light of this proverb no excuse is available either for the Gyges of the story or for the man who I assumed a moment ago could with a snap of his fingers sweep together everybody's inheritance at once? For as the morally wrong cannot by any possibility be made morally right, however successfully it may be covered up, so what is not morally right cannot be made expedient, for Nature refuses and resists.
20 79 "But stay," someone will object, "when the prize is very great, there is excuse for doing wrong."
Gaius Marius had been left in obscurity for more than six whole years after his praetorship and had scarcely the remotest hope of gaining the consulship. It looked as if he would never even be a candidate for that office. He was now a lieutenant under Quintus Metellus, who sent him on a furlough to Rome. There before the Roman People he accused his own general, an eminent man and one of our first citizens, of purposely protracting the war and declared that if they would make him consul, he would within a short time deliver Jugurtha alive or dead into the hands of the Roman People. And so he was elected consul, it is true, but he was a traitor to his own good faith and to justice; for by a false charge he subjected to popular disfavour an exemplary and highly respected citizen, and that too, although he was his lieutenant and under leave of absence from him.
80 Even our kinsman Gratidianus failed on one occasion p353 to perform what would be a good man's duty: in his praetorship the tribunes of the people summoned the college of praetors to council, in order to adopt by joint resolution a standard of value for our currency; for at that time the value of money was so fluctuating that no one could tell how much he was worth. In joint session they drafted an ordinance, defining the penalty and the method of procedure in cases of violation of the ordinance, and agreed that they should all appear together upon the rostra in the afternoon to publish it. And while all the rest withdrew, some in one direction, some in another, Marius (Gratidianus) went straight from the council-chamber to the rostra and published individually what had been drawn up by all together. And that coup, if you care to know, brought him vast honour; in every street statues of him were erected; before these incense and candles burned. In a word, no one ever enjoyed greater popularity with the masses.
81 It is such cases as these that sometimes perplex us in our consideration, when the point in which justice is violated does not seem so very significant, but the consequences of such slight transgression seem exceedingly important. For example, it was not so very wrong morally, in the eyes of Marius,9 to over-reach his colleagues and the tribunes in turning to himself alone all the credit with the people; but to secure by that means his election to the consulship, which was then the goal of his ambition,10 seemed very greatly to his interest. But for all cases we have one rule, with which I desire you to be perfectly familiar: that which seems expedient must not be morally wrong; or, if it is morally wrong, it p355 must not seem expedient. What follows? Can we account either the great Marius or our Marius Gratidianus a good man? Work out your own ideas and sift your thoughts so as to see what conception and idea of a good man they contain. Pray, tell me, does it coincide with the character of your good man to lie for his own profit, to slander, to overreach, to deceive? Nay, verily; anything but that!
82 Is there, then, any object of such value or any advantage so worth the winning that, to gain it, one should sacrifice the name of a "good man" and the lustre of his reputation? What is there that your so‑called expediency can bring to you that will compensate for what it can take away, if it steals from you the name of a "good man" and causes you to lose your sense of honour and justice? For what difference does it make whether a man is actually transformed into a beast or whether, keeping the outward appearance of a man, he has the savage nature of a beast within?
21 Again, when people disregard everything that is morally right and true, if only they may secure power thereby, are they not pursuing the same course as he11 who wished to have as a father-in‑law the man by whose effrontery he might gain power for himself? He thought it advantageous to secure supreme power while the odium of it fell upon another; and he failed to see how unjust to his country this was, and how wrong morally. But the father-in‑law himself used to have continually upon his lips the Greek verses from the Phoenissae, which I will reproduce as well as I can — awkwardly, it may be, but still so that the meaning can be understood:
p357 "If wrong may e'er be right, for a throne's sake
Were wrong most right:— be God in all else feared!"12
Our tyrant deserved his death for having made an exception of the one thing that was the blackest crime of all. 83 Why do we gather instances of petty crime — legacies criminally obtained and fraudulent buying and selling? Behold, here you have a man who was ambitious to be king of the Roman People and master of the whole world; and he achieved it! The man who maintains that such an ambition is morally right is a madman; for he justifies the destruction of law and liberty and thinks their hideous and detestable suppression glorious. But if anyone agrees that it is not morally right to be kind in a state that once was free and that ought to be free now, and yet imagines that it is advantageous for him who can reach that position, with what remonstrance or rather with what appeal should I try to tear him away from so strange a delusion? For, oh ye immortal gods! can the most horrible and hideous of all murders — that of fatherland — bring advantage to anybody, even though he who has committed such a crime receives from his enslaved fellow-citizens the title of "Father of his Country"?13 Expediency, therefore, must be measured by the standard of moral rectitude, and in such a way, too, that these two words shall seem in sound only to be different but in real meaning to be one and the same.
84 What greater advantage one could have, according to the standard of popular opinion, than to be a king, I do not know; when, however, I begin to bring the question back to the standard of truth, then I find nothing more disadvantageous for one who has risen to p359 that height by injustice. For can occasions for worry, anxiety, fear by day and by night, and a life all beset with plots and perils be of advantage to anybody?
"Thrones have many foes and friends untrue, but few devoted friends,"
says Accius. But of what sort of throne was he speaking? Why, one that was held by right, handed down from Tantalus and Pelops. Aye, but how many more foes, think you, had that king who with the Roman People's army brought the Roman People themselves into subjection and compelled a state that not only had been free but had been mistress of the world to be his slave? 85 What stains do you think he had upon his conscience, what scars upon his heart? But whose life can be advantageous to himself, if that life is his on the condition that the man who takes it shall be held in undying gratitude and glory? But if these things which seem so very advantageous are not advantageous because they are full of shame and moral wrong, we ought to be quite convinced that nothing can be expedient that is not morally right.
22 86 And yet this very question has been decided on many occasions before and since; but in the war with Pyrrhus the decision rendered by Gaius Fabricius, in his second consulship, and by our senate was particularly striking. Without provocation King Pyrrhus had declared war upon the Roman People; the struggle was against a generous and powerful prince, and the supremacy of power was the prize; a deserter came over from him to the camp of Fabricius and promised, if Fabricius would assure him of a reward, to return to the camp of Pyrrhus as secretly as he had come, administer poison to the king, and bring p361 about his death. Fabricius saw to it that this fellow was taken back to Pyrrhus; and his action was commended by the senate. And yet, if the mere show of expediency and the popular conception of it are all we want, this one deserter would have put an end to that wasting war and to a formidable foe of our supremacy; but it would have been a lasting shame and disgrace to us to have overcome not by valour but by crime the man with whom we had a contest for glory.
87 Which course, then, was more expedient for Fabricius, who was to our city what Aristides was to Athens, or for our senate, who never divorced expediency from honour — to contend against the enemy with the sword or with poison? If supremacy is to be sought for the sake of glory, crime should be excluded, for there can be no glory in crime; but if it is power for its own sake that is sought, whatever the price, it cannot be expedient if it is linked with shame.
That well-known measure, therefore, introduced by Philippus, the son of Quintus, was not expedient. With the authority of the senate, Lucius Sulla had exempted from taxation certain states upon receipt of a lump sum of money from them. Philippus proposed that they should again be reduced to the condition of tributary states, without repayment on our part of the money that they had paid for their exemption. And the senate accepted his proposal. Shame upon our government! The pirates' sense of honour is higher than the senate's. "But," someone will say, "the revenues were increased, and therefore it was expedient." How long will people venture to say that a thing that is not morally right p363 can be expedient? 88 Furthermore, can hatred and shame be expedient for any government? For government ought to be founded upon fair fame and the loyalty of allies.
On this point I often disagreed even with my friend Cato; it seemed to me that he was too rigorous in his watchful care over the claims of the treasury and the revenues; he refused everything that the farmers of the revenue asked for and much that the allies desired; whereas, as I insisted, it was our duty to be generous to the allies and to treat the publicans as we were accustomed individually to treat our tenants — and all the more, because harmony between the orders was essential to the welfare of the republic.14 Curio, too, was wrong, when he pleaded that the demands of the people beyond the Po were just, but never failed to add, "Let expediency prevail." He ought rather to have proved that the claims were not just, because they were not expedient for the republic, than to have admitted that they were just, when, as he maintained, they were not expedient.
23 89 The sixth book of Hecaton's "Moral Duties" is full of questions like the following: "Is it consistent with a good man's duty to let his slaves go hungry when provisions are at famine price?"
Hecaton gives the argument on both sides of the question; but still in the end it is by the standard of expediency, as he conceives it, rather than by one of human feeling, that he decides the question of duty.
Then he raises this question: supposing a man had to throw part of his cargo overboard in a storm, should he prefer to sacrifice a high-priced horse or a cheap and worthless slave? In this case regard for p365 his property interest inclines him one way, human feeling the other.
"Suppose that a foolish man has seized hold of a plank from a sinking ship, shall a wise man wrest it away from him if he can?" "No," says Hecaton; "for that would be unjust." "But how about the owner of the ship? Shall he take the plank away because it belongs to him?"
"Not at all; no more than he would be willing when far out at sea to throw a passenger overboard on the ground that the ship was his. For until they reach the place for which the ship is chartered, she belongs to the passengers, not to the owner."
90 "Again; suppose there were two to be saved from the sinking ship — both of them wise men — and only one small plank, should both seize it to save themselves? Or should one give place to the other?"
"Why, of course, one should give place to the other, but that other must be the one whose life is more valuable either for his own sake or for that of his country."
"But what if these considerations are of equal weight in both?"
"Then there will be no contest, but one will give place to the other, as if the point were decided by lot or at a game of odd and even."
"Again, suppose a father were robbing temples or making underground passages to the treasury, should a son inform the officers of it?"
"Nay; that were a crime; rather should he defend his father, in case he were indicted."
"Well, then, are not the claims of country paramount to all other duties"
p367 "Aye, verily; but it is to our country's interest to have citizens who are loyal to their parents."
"But once more — if the father attempts to make himself king, or to betray his country, shall the son hold his peace?"
"Nay, verily; he will plead with his father not to do so. If that accomplishes nothing, he will take him to task; he will even threaten; and in the end, if things point to the destruction of the state, he will sacrifice his father to the safety of his country."
91 Again he raises the question: "If a wise man should inadvertently accept counterfeit money for good, will he offer it as genuine in payment of a debt after he discovers his mistake?" Diogenes says, "Yes"; Antipater, "No," and I agree with him.
If a man knowingly offers for sale wine that is spoiling, ought he to tell his customers? Diogenes thinks that it is not required; Antipater holds that an honest man would do so. These are like so many points of the law disputed among the Stoics. "In selling a slave, should his faults be declared — not those only which he seller is bound by the civil law to declare or have the slave returned to him, but also the fact that he is untruthful, or disposed to ramble, or steal, or get drunk?" The one thinks such faults should be declared, the other does not.
92 "If a man thinks that he is selling brass, when he is actually selling gold, should an upright man inform him that his stuff is gold, or go on buying for one shilling15 what is worth a thousand?"
It is clear enough by this time what my views are on these questions, and what are the grounds of dispute between the above-named philosophers.
p369 24 The question arises also whether agreements and promises must always be kept, "when," in the language of the praetors' edicts, "they have not been secured through force or criminal fraud."
If one man gives another a remedy for the dropsy, with the stipulation that, if he is cured by it, he shall never make use of it again; suppose the patient's health is restored by the use of it, but some years later he contracts the same disease once more; and suppose he cannot secure from the man with whom he made the agreement permission to use the remedy again, what should he do? That is the question. Since the man is unfeeling in refusing the request, and since no harm could be done to him by his friend's using the remedy, the sick man is justified in doing what he can for his own life and health.
93 Again: suppose that a millionaire is making some wise man his heir and leaving him in his will a hundred million sesterces;16 and suppose that he has asked the wise man, before he enters upon his inheritance, to dance publicly in broad daylight in the forum; and suppose that the wise man has given his promise to do so, because the rich man would not leave him his fortune on any other condition; should he keep his promise or not? I wish he had made no such promise; that, I think, would have been in keeping with his dignity. But, seeing that he has made it, it will be morally better for him, if he believes it morally wrong to dance in the forum, to break his promise and refuse to accept his inheritance rather than to keep his promise and accept it — unless, perhaps, he contributes the money to the state to meet some grave crisis. In that case, to p371 promote thereby the interests of one's country, it would not be morally wrong even to dance, if you please, in the forum.
25 94 No more binding are those promises which are inexpedient for the persons themselves to whom they have been given. To go back to the realm of story, the sun-god promised his son Phaethon to do for him whatever he should wish. His wish was to be allowed to ride in his father's chariot. It was granted. And before he came back to the ground he was consumed by a stroke of lightning. How much better had it been, if in his case the father's promise had not been kept. And what of that promise, the fulfilment of which Theseus required from Neptune? When Neptune offered him three wishes, he wished for the death of his son Hippolytus, because the father was suspicious of the son's relations with his step-mother. And when this wish was granted, Theseus was overwhelmed with grief. 95 And once more; when Agamemnon had vowed to Diana the most beautiful creature born that year within his realm, he was brought to sacrifice Iphigenia; for in that year nothing was born more beautiful than she. He ought to have broken his vow rather than commit so horrible a crime.
Promises are, therefore, sometimes not to be kept; and trusts are not always to be restored. Suppose that a person leaves his sword with you when he is in his right mind, and demands it back in a fit of insanity; it would be criminal to restore it to him; it would be your duty not to do so. Again, suppose that a man who has entrusted money to you proposes to make war upon your common country, should you restore the trust? I believe you should not; for p373 you would be acting against the state, which ought to be the dearest thing in the world to you. Thus there are many things which in and of themselves seem morally right, but which under certain circumstances prove to be not morally right: to keep a promise, to abide by an agreement, to restore a trust may, with a change of expediency, cease to be morally right.
With this I think I have said enough about those actions which masquerade as expedient under the guise of prudence, while they are really contrary to justice.
3 I.e., whether he be god or man.
4 The Cilician pirates had been crushed by Pompey and settled at Soli (Pompeiopolis). They gathered strength again during the distractions of the civil wars, and Antony is even said to have sought their aid in the war against Brutus and Cassius.
Marseilles and King Deiotarus of Armenia had supported Pompey and in consequence were made tributary by Caesar's party.
5 See § 70 below.
6 The shame was that states enjoying the rights of Roman citizenship should need a patron to protect their interests in the Roman capital.
7 The Platonic doctrine of ideas known in a previous existence and gradually developing into renewed consciousness. Learning is but a remembering of what the soul has known before.
8 Lit. 'flash with the fingers; shoot out some fingers, the number of which had to be guessed.
10 Never attained, however. For his conspicuous position as a popular leader made him an early mark for Sulla's proscriptions.
11 Pompey, who in 59 married Caesar's daughter Julia, twenty-four years his junior, and already betrothed to Caepio.
12 From A. S. Way's translation.
13 The title bestowed on Cicero for saving the republic (in 63) and on Caesar for overthrowing it (after the battle of Munda, in 45).
14 The publicans, farmers of the revenue, were the moneyed men of the times, and belonged to the equestrian order. They purchased from the senate the farming of the revenues and then sublet their contract to the collectors. Sometimes they found that they had agreed to pay too high a rate and petitioned the senate to release them from their contract or reduce their obligations, as on this occasion (B.C. 61). The opposition of Cato and others strained the relations between the senate, who had control of the business, and the equestrian order, driving many of the equites over to Caesar's side. Complete harmony between the senate and the knights, as Cicero says, was the only thing that could have saved Rome from the popular party and Caesar.
15 The denarius was worth at this time about ninepence.
16 Approximately £750,000.
Thayer's Note: i.e., the translator felt in 1913 that the amount in question was something like $250,000,000 in 2010.
a Cicero seems to be the only extant writer to mention this Lex Pennia; for both these laws, see the references in Smith's Dictionary, s. v. Lex Junia de Peregrinis.
b If, gentle reader, you're tempted to correct this to "Praetorian" law — resist the temptation. The law is the Lex Plaetoria (q.v.).
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