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BOOK lity of the evidence, true or fallacious, has

nothing to do with the force by which it is obtained ; that men of firm minds will resolutely conceal what is true, and that men of an opposite character will weakly confess what is false, the sooner to get rid of their immediate sufferings. Of this the pleader may easily furnish himself with examples, many of which cannot

fail to occur to the judges. 5. Oaths; Evidence on oath, the fifth and last of inarthe simple tificial proofs, comprehends the four following cerning them, and

cases : a man may be ready alike to take his their com- own oath, and to refer the matter to his adverplications. sary's; he may refuse to do either ; he may

be willing to refer to his adversary's oath, but unwilling to take his own; or, the reverse of this, he may be willing to take his own, but unwilling to refer to that of his adversary. Besides these, the only possible distinctions, the pleader has also to consider, whether either of the parties has already made oath in the cause, and which of them has done so. To justify the refusal of an appeal to the conscience of our adversary, we may maintain that the voice of this internal monitor is but too often stifled through passion or interest ; that our opponent wishes nothing better than to be allowed to give his oath, in order to withhold from us our right; that confiding in the goodness of our cause, we trust, that without the formality of swearing him, the judges will see abundant reason to condemn him ; and that, if we were reduced to the necessity of trusting to such proofs as oaths, we should far rather confide in those officially taken by our


judges : they are men to be believed; not so, CHAP. our adversary Again, a man may decline taking his oath, on the ground that he disapproves of making appeals to heaven in matters of mere pecuniary interest; that if he had less reverence for the gods, he would swear most readily, since by this he would obtain the object in view ; and a villany with gain is better than one altogether unproductive. This reluctance to swear will thus appear to proceed from virtue, and not from any apprehension of being convicted of perjury: he will seem, not to fear the oath, but to disdain it through honest scorn; and his refusal will seem to illustrate the saying of Xenophanes, that, in a dispute between honest men and knaves, a reference to oaths is no better than a judicial combat between address and awkwardness. Of the third case, that in which a man is ready to make oath in his own cause, the propriety may be enforced by saying, that, however distrustful of his adversary, he is sure of himself, and sure that the judges may perfectly rely on his integrity; and then converting the proposition of Xenophanes, maintain that litigant parties can never be put more on a foot of equality, than when a man, fearless of the gods, is obliged to defer to the oath taken by a man of piety: and why should the latter feel reluctance to swear, since the judges, how respectable soever their characters, must themselves be sworn, before they can exercise their honourable functions? If it suits our purpose to defer to the adversary's oath, we may then allege, that nothing can bet


BOOK ter become persons of religion and virtue than

to submit their interests to the gods; that we desire no other judges, nor ought our opponent to desire them, the whole matter being referred to his own religion and oath ; that it would be absurd in him to decline this attestation, which even his judges must make, before they can pass sentence in his cause. Having shown what is to be said in these simple cases, it is plain how we must proceed when any two of them are coupled; as when a man is willing to make oath himself, but unwilling to defer to that of his adversary; or when he is willing to abide by his adversary's oath, but unwilling to take his own; or when he is alike willing to give and take, or absolutely refuses to do either; all these are merely combinations of the cases treated above, so that the arguments must be precisely

the same, only expressed conjunctively. Arguments When, upon the discovery of some error in our against

evidence, we wish to alter the affidavit before correcting made, we may repel the reproach of perjury, on oath. by maintaing that all perjury is injustice, and

that all injustice is voluntary; but nothing can be more involuntary than the result of compulsion and deception : perjury, therefore, is in the mind and intention, not in the mere words that are uttered. But should our adversary wish to correct his former declaration, it is then that we must magnify the sanctity of oaths, to tamper with which is to dissolve all those ties which hold society together. From oaths, the laws them

for and



selves derive their validity, and oaths are indis- CHAP. pensable in all who administer them; and “can it be endured while you, who are judges, must abide by your decisions, because of the oath which


have taken, that oaths, made in your presence, should be set at nought by the contending parties ?" These and other amplifications will be here in their proper place: such are the general doctrines concerning inartificial proofs.82

82 Conf. Cicero de Partit. Orator. & Quintilian, Instit, l. v. cap. 4, 5, 6, 7.




Deliberative and Judicial Eloquence' ; on what their respect

ive success depends. -The three requisiles to Persuasion, independently of Argument. Transition to the Doctrine of the Passions. Anger ; - Its Definition - Causes - Its natural Subjects and Objects.--Love and Hatred.

Fear. - Shame. - Pity. - Indignation. -Envy. Emulation. Passions and Characters, as modified by Age Birth Riches - Power; and their contraries. The Sources of Argument respectively appropriate to the three kinds of Oratory. The Topics common to all the three kinds :- 1. The Topic derived from the nature of contraries; 2. From that of conjugate terms ; 3. From relatives ;-4. A fortiori ;-5. Parity of reason; -6. From consistency in will and conduct ; 7. Ad hominem ; -8. From definition ; -- 9. From diversity of signification. — 10. From division. -- 11. From accumulation of instances ; -- 12. From precedent ; — 13. From resolution of the genus into its several species ; 14. From consequences; - 15. From the consequents of contraries.- 16. From variance in the opinions of men, expressed and secret ; 17. From analogy; 18. From identifying things with their consequences ;-19. From inconsistency with previous resolutions ; — 20. From substituting a probable motive for the real cause; -21. From the general causes impelling all human action ; — 22. From improbability itself;- 23. From incongruity ;


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