If Aquilius’s definition is correct, our lives ought to be completely purged of any misrepresentation or suppression of facts. The application of his ruling will mean that no decent person engaged in buying or selling can ever resort to invention or concealment for his own profit. Indeed, even before Aquilius’s time, there were legal penalties against criminal fraud of this kind. For instance the Twelve Tables2 apply them to wardship cases, and the Plaetorian Law to the defrauding of minors. In certain equity cases, too, the same purpose is served by the formula as good faith requires. Likewise, all other civil suits give prominence to phrases like this: in arbitrations about a wife’s property the fairer is the better, in trust cases honest dealing as between honest people. Well, if we apply the formula the fairer is the better, how can there be any question of dishonesty? And the ruling honest dealing as between honest people again leaves not the slightest room for any fraudulent or unscrupulous action.
Moreover, as Aquilius points out, misrepresentation is the equivalent of criminal fraud. In other words deception must be wholly eliminated from business transactions. For example, no seller must employ a sham bidder to raise prices; nor must the purchaser employ an agent to keep them down – and both of them, when they come to naming a sum, must state their price once and for all.
Quintus Mucius Scaevola,1 son of Publius, wanted to buy a farm; and he requested that the seller should indicate his final price. When this had been done, Scaevola replied that he considered the farm to be worth more than the proposed sum; and he paid a hundred thousand sesterces over and above what had been asked. By so doing, as no one can deny, he proved the goodness of his character. However, his action has also been criticized as showing a lack of wisdom – just as much as if he had been selling the farm, and had accepted less than might have been offered. But what a pernicious doctrine! – implying, as it does, a denial that good men and wise men are identical. As Ennius relevantly says, ‘if the wise man cannot benefit himself, his wisdom is vain.’2 That is entirely true – if Ennius and I mean the same thing by ‘benefit’!
Panaetius’s pupil Hecato of Rhodes, in his work On Duty dedicated to Quintus Aelius Tubero,3 makes a noteworthy remark on this subject. ‘A wise man’, says Hecaton, ‘is justified in caring for his private interests, provided that this involves no action contrary to morality, law, or established institutions. For when we want to become rich, egotism is not all that prompts us: we feel this ambition for the sake of our children, our relations, and our friends – and most of all for our country, seeing that the nation’s wealth is made up of the resources and fortunes of individuals.’ So Scaevola’s action, of which I am speaking, would not have met with the approval of Hecato, who regarded all profit-making as permissible unless it is of a kind specifically forbidden by law. But for a man who holds views like his we need not spare much commendation or gratitude.
Nevertheless, if criminal fraud includes concealment of the facts as well as positive misrepresentation, there are very few human dealings in which such fraud does not occur. Conversely, a good man will be far from easy to find – if, as I have said, we mean by this the person who helps all and hurts none. Yet, as I tried to show, bad actions can never be of advantage, because they are always morally wrong; goodness, being morally right, is invariably advantageous.
The laws in our civil code relating to real property stipulate that in a sale any defects known to the seller have to be declared. The Twelve Tables were content to require that defects explicitly indicated should be made good by the seller, and that a seller who denied them under questioning should pay twice their cost. Nowadays, however, our legislators have added suppression of the facts to the indictable offences, ruling that even if the seller has not declared all the defects he must make them good.
Once the augurs were proposing to take celestial observations from the Citadel. Tiberius Claudius Centumalus, who owned a house on the Caelian Hill, received instructions from them to pull down certain parts of the building which owing to their height obstructed the augurs’ view. But Claudius responded by advertising the block for sale. Its purchaser was Public Calpurnius Lanarius, on whom the augurs then served the same notice; and he undertook the necessary demolition. At that juncture, however, Calpurnius learnt that Claudius had only offered the building for sale after the augurs had ordered its partial destruction. So he compelled Claudius to appear before an arbitrator, who was to decide what indemnity he was obliged, in good faith, to deliver and make over to the other party. The verdict was pronounced by Marcus Porcius Cato, father of our Cato (other men take their fathers’ names, but he almost seems to take his from his glorious son!). His decision was as follows: ’since the seller knew this fact at the time and did not divulge it, he must make good the purchaser’s loss.’
Thereby Cato established the principle that good faith requires any defect known to the seller to be notified to the purchaser. If Cato’s verdict was correct, then our grain-merchant and the seller of the in-sanitary house acted wrongly when they concealed the facts. Our civil laws naturally cannot handle suppression of the facts in all its forms. But with those aspects which come within their scope they deal severely.
Once my relative Marcus Marius Gratidianus1 sold back to Gaius Sergius Orata a house he had purchased from the same man a few years earlier. In the terms of sale Gratidianus said nothing about the existence of a legal encumbrance to which any purchaser of the building would have to succeed. A dispute followed, and the matter came into court. Lucius Licinius Crassus2 appeared for Orata, and Marcus Antonius2 for Gratidianus. Crassus laid emphasis on the law requiring that the seller must make good the defects – which he had known but not disclosed. Antonius, on the other hand, appealed to equity. His argument was that Orata was already aware of the defect, seeing that the latter had himself sold the house to Gratidianus previously. Antonius therefore maintained that there had been no need to mention the liability involved in the purchase: since Orata knew of this already, he had not been the victim of any deception.
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Why am I telling these stories? To show you that our ancestors would not countenance sharp practice!
Now law and philosophy have their different methods of combating sharp practice. The law attempts its conquest by forcible coercion, the philosophers by reasoning and logic, which, they argue, make any employment of deception, pretence, or trickery out of the question. Well, surely setting traps comes under the heading of deception! – even if one does not intend to start the game or drive it into the traps; for whether someone is after the animals or not they often get caught in the traps all the same. Advertising a house for sale raises just the same point. Clearly you ought not to make your advertisement into a trap which you hope will catch some victim unawares.
Nevertheless, the standards demanded by public opinion are not so high as they were, and I find that nowadays actions of this sort are not normally regarded as wrong, or penalized by statute or civil law. But what forbids them is the moral law which nature itself has ordained. As I have said before – and it needs constant repetition! – there is a bond of community that links every man in the world with every other. Though this bond is universal in application, it is particularly strong as a unifying link between people of the same race: between actual compatriots the link is closer still.
The existence of this natural bond of community between all human beings explains why our ancestors chose to make a distinction between the civil law of the land and the universal law. The law of the land, it is true, ought to be capable of inclusion within the universal law, but they are not synonymous since the latter is more comprehensive.
Not that we possess any clear-cut, tangible images to show us what true, authentic Law and Justice really look like! We only have outline sketches. And the extent to which we allow ourselves to be guided even by these leaves a great deal to be desired. For at least they have the merit of derivation from the finest models – those which have been vouchsafed to us by nature and by truth. Think of the nobility of that formula: that I be not deceived and defrauded because of you and because of trust in you. And that other golden phrase: between honest men there must be honest dealing and no deception.
But that still leaves big questions unanswered: who are the honest men? and what is honest dealing?
The chief priest Quintus Mucius Scaevola attributed special importance to all arbitration cases involving the expression in good faith. He attributed the widest possible validity to this formula, applying as it does to wardships, associations, trusts, commissions, buying and selling, hiring and letting: in fact, to all the transactions which make up our daily human relationships. According to Scaevola’s view the assessment of one man’s obligation to another in these spheres, with all the counter-claims that are frequently involved, demands a judge of outstanding calibre.
Sharp practice, then, must go. And so must every kind of trickery masquerading as intelligence, seeing that the two things are entirely different and remote from one another. The function of intelligence is to distinguish between good and bad; whereas trickery takes sides between them, actually preferring what is bad and wrong.
Real estate is not the only field in which our civil law, basing itself on the dictates of nature, penalizes trickery and deception. In the sale of slaves, for example, all deception on the part of the seller is again forbidden. For the aediles have ruled that if a man knows that a slave he is selling is unhealthy, or a runaway, or a thief, he must (unless the slave is one he has inherited) report accordingly.
This then is the conclusion to which we come. Nature is the source of law: and it is contrary to nature for one man to prey upon another’s ignorance. So trickery disguised as intelligence is life’s greatest scourge, being the cause of innumerable illusions of conflict between advantage and right. For extremely few people will refrain from doing a wrong action if they have the assurance that this will be both undiscovered and unpunished!