But many reasons occur to me why this crime should not come under the law. First of all, the best part of a benefit is lost if it can become actionable, as is possible in the case of a fixed loan or of something rented or leased. For the most beautiful part of a benefit is that we gave it even when we were likely to lose it, that we left it wholly to the discretion of the one who received it. If I arrest him, if I summon him before a judge, it gets to be, not a benefit, but a loan.
In the second place, although to repay gratitude is a most praiseworthy act, it ceases to be praiseworthy if it is made obligatory; for in that case no one will any more praise a man for being grateful than he will praise one who has returned a deposit of money, or paid a debt without being summoned before a judge. So we spoil the two most beautiful things in human life — a man’s gratitude and a man’s benefit. For what nobility does either one show — the one if, instead of giving, he lends a benefit, the other if he makes return, not because he wishes, but because he is forced? There is no glory in being grateful unless it would have been safe to be ungrateful.
Add, too, the fact that for the application of this one law all the law-courts in the world would scarcely be enough! Where is the man who will not bring action? Where is the man against whom action will not be brought? For all exalt their own merits, all magnify the smallest services they have rendered to others.
Again, in all matters that become the basis of legal action it is possible to define3 the procedure and to prohibit the judge from unlimited liberty; it is clear, accordingly, that a just case is in a better position if it is brought before a judge than if it is brought before an “arbiter,” because the judge is restricted by the formula of instructions, which sets definite bounds that he cannot exceed, whereas the other has entire liberty of conscience and is hampered by no bonds; he can lessen the value of some fact or augment it, and can regulate his opinion, not according to the dictates of law or justice, but according to the promptings of humanity or pity. But an action for ingratitude would not place any restriction on the judge, but would set him in a position of absolutely untrammeled authority. For it is not clearly determined what a benefit is, nor, too, how great it is; that depends upon how generously the judge may interpret it. No law shows what an ungrateful person is; often one who has returned what he received is ungrateful, and one who has not returned it is grateful. On certain matters even an inexperienced judge is able to give a verdict; for instance, when an opinion must be delivered on whether something has, or has not, been done, when the dispute is terminated by the giving of bonds, when common sense pronounces judgment between the litigants. When, however, a conjecture of motive has to be made, when a point concerning which wisdom alone can decide happens to be in dispute, it cannot be that for such purposes a judge is to be taken from the general crowd of jurors4 — a man whom income and the inheritance of equestrian fortune have placed upon the roll.