26. ture a kind of Torture is a kind of evidence, and appears to carry 4th. Tor- with it absolute credibility, because a kind of constraint is applied. Now, it is not at all difficult reevidence. specting this to discern those considerations which When on the cause admits of, and to set them forth; out of our side. which, should the torture be on our side, it is possi When against us. 27. Oaths; a ble to enhance its value, by insisting that of all evi- On the subject of oaths we may make a four-fold 5th. division; for a party either tenders an oath, and acfour-fold cepts it; or he does neither; or he does the one, and division not the other; that is, he either tenders, but does i. not accept it; or accepts, but does not tender it.15 ii. Moreover, it may happen in a different way from this iii. still, supposing the oath to have been previously taken by this or that party. made. iv. 28. 1. Now, an advocate does not tender an oath on 1. When the ground that men easily forswear themselves; and refuses to because the other party will take it, and never repay; tender but that he is of opinion that the judges, if his ad the orator the oath. 14 The Pandects (lib. xlviii. tit. xviii.) contain the sentiments of the most eminent civilians on the subject of torture. They confine it to slaves; and Ulpian acknowledges, that "Res est fragilis, et periculosa, et quæ veritatem fallet." 15 However strangely this wrangling for the administration of oaths may sound, at the present day, when they are uniformly insisted on, yet in the early periods of our own history the evidence for accused persons against the king could not be examined on oath,- -nor till the reign of Anne could any one accused of felony produce witnesses on oath. Edin. Review, No. lxxxix. Art. 3, p. 79, 80. It was not till so late as the reign of Anne, that the English courts were authorized to administer an oath to persons called by a prisoner on his defence. versary does not take the oath, will give a verdict against him: that he estecas the risk which depends on the judges the preferable one, for in them he reposes confidence, but in his adversary, none. ii. When 2. But an advocate declines accepting it on the 29. ground of its being an oath for a pecuniary object; he refuses and because, if he were a worthless fellow, he would to accept forswear himself without more ado; since it were it. better surely to be a villain for some object, rather than for none; for if he but take the oath, he will gain his cause, if he decline taking it, he will not. Thus, then, his not taking it will be from virtuous motives, not from fear of forswearing himself; here, too, the saying of Xenophanes is in point, viz. that this sort of appeal, made by an impious man to a pious, is not fair, but is just such an one, as if a robust fellow were to challenge an infirm man, either to strike him, or to get beaten himself. 3. If, however, he accepts it, the advocate alleges 30. that he feels confidence in himself, but none in his iii. When he accepts adversary. Let him also declare, inverting the saying it. of Xenophanes, that it is fair enough if the impious man tenders the oath, and the pious man takes it; also, that it is surely a strange thing that a man should be unwilling himself to take an oath, in a question about which he calls on the judges to give their verdict on oath. he tenders 4. If, however, he tenders the oath, let him insist 31. that a willingness to intrust the question to the gods iv. When is a matter of piety; and that his adversary need it. call on no other judges, since he throws the decision of the case into his own hands; and that an unwillingness to take an oath, in a question about which he calls upon other people to swear, is absurd. ments for taken con jointly. the same Now, as it is thus plain how we are to speak in 32. Argureference to each [of the four simple cases], it will also be plain how we are to speak when taking them conjointly; supposing, for instance, either that your self are willing to take the oath, but not to tender it ; or, if you tender it, but are not willing to take it; or if you are inclined both to take it and to tender it; Argu .ments if any pre vious oath has been taken. 33. Per jury. or to do neither; for these cases must be made up of those above mentioned, so that our reasonings must also be made up of those above stated. But if a former oath, and that contradictory of your present, has been taken by yourself, you have to make out that it is not perjury; for injustice is essentially voluntary, and perjury is injustice; but that which is done under constraint, or deceit, is involuntary, [and therefore not unjust.] Here then we may introduce the saying about perjury, viz. "that it is a thing not of the tongue, but of the mind." If, however, an oath of this description shall have been taken by your adversary, declare, "that he who abides not by what he has sworn to, subverts every thing which is established; for this is the reason that judges administer the law only on oath:" exclaim, too, "that these men are calling on you, judges, to abide by those oaths, by virtue of taking which you give your verdict ; and do they not themselves abide by them?" And whatever else one may allege in way of amplification. So much, then, for the subject of proof not originated by art. BOOK II. CHAP. I. The necessity of investing the Judge with a favourable feeling. πίστις ἐν THE materials, then, from which we must exhort 1. Discusand dissuade, praise and blame, accuse and defend, sion of the the notions also and propositions, useful in order to re render these points credible, are those [which we TOũ Xéhave discussed]: for respecting these questions, and YOUTOS. out of these sources, are enthymems deduced, so that an orator, thus provided, may speak on each separate department of questions. But as rhetoric has in 2. view the coming to a decision (for in deliberative oratory, the assembly arrive at decisions; and the sentence of a court of justice is ipso facto a decision); it is necessary to look not only to your speech, in what way that will be of a character to convince and persuade, but also to invest yourself with a certain kind of character, and the judge with a certain kind of feeling. For it is a point of great consequence, 3. particularly in deliberative1 cases; and, next to these, in judicial; as well that the speaker seem to be a man of a certain character, as that his audience conceive him to be of a certain disposition toward themselves; moreover it is of consequence if your audience chance to be themselves also disposed in a certain way. Those subjects about which deliberative oratory is concerned, least of all admit any thing like absolute certainty, for we can only form conjectures of what will be from what has been; and Aristotle has already told us, "that men lend a readier and more implicit belief to the good on all questions whatsoever; but on those whose nature precludes our arriving at certainty, but compels us to remain in doubt, we rely entirely on them." Book i. chap. ii. § 4. 5. Three for the orator's belief. 4. Now, as to a speaker's appearing to be himself of a i. φρόνη σις. ii. dperń. iii. εὔνοια. who is eager and sanguine, the proposed object, if pleasant, takes the appearance, as well of being likely to accrue, as of being likely to prove really a good; while by one who is indifferent and reluctant, the opposite view is taken. Now, there are three causes of a speaker's deservrequisites ing belief; for so many in number are the qualities on account of which we lend our credit, independentgaining ly of proof adduced; and these are prudence, moral excellence, and the having our interests at heart2; (for men are fallacious in what they allege or advise by reason, either of all, or some, of these causes; for either, from want of ability, they do not rightly apprehend the question; or, rightly apprehending it, from their depravity, they do not tell you what they think; or, being men both of ability and moral excellence, they have not your interests at heart, on which account it is possible they should not give you the best advice, though fully known what is best ;) and besides these there is no other: it follows therefore, of course, that the speaker who appears to possess all these qualities, is considered by his audience as deserving credit 3. Now the means by which men 1. The 2 See Pericles's defence of himself, Thucyd. ii. 60; and above, book i. chap. viii. § 6. 3 A celebrated scholar of the present day, after having de scribed the eloquence of Mr. Fox, as remarkably characterized |