First, then, let me speak of Laws, in what way an orator, in exhorting or dissuading, and in accus- ing or defending, is to turn them to his purpose. Because it is plain, that if the written law be op- posed to his case, he must avail himself of the uni- versal law, and of topics of equity, as more absolutely just: and he must argue that, really “‘to act to the best of his judgment?,” is to decline an implicit adher- ence to written prescript: he must insist, moreover, - that. equity remains for ever, and varies not at any * time, neither does the universal law, for this is in conformity to nature; but that the written law does frequently vary; whence it was said in the Antigone 1 He here apologizes for his violation of the proposed ar- rangement, in treating of the ἀτέχναι πίστεις, before he has fully despatched the ἐντέχναι. In fact, the former class of πίστεις are so nearly confined to judicial, that their introduc- tion, though a little out of place, as an appendix to the subject of judicial rhetoric, is very appropriate. Not, however, but that πίστεις of this class may be available in deliberative oratory; and indeed Aristotle himself seems to hint as much in using the words προτρέποντα καὶ ἀποτρέποντα (expressions peculiar to deliberation), as well as κατηγοροῦντα καὶ ἀπολογούμενον, 2 The judges were bound by oath, first, to an adherence to the laws, and in cases unrecognised by law, to exercise their best judgment, (γνώμη ἡ apiorn:) this, as Aristotle here ob serves, left grounds for the appeal of an orator.
"CHAP χυ RHE1ORIC. 95 of Sophocles; for she is defending herself because she acted in opposition to the law of Creon, but not in opposition to the universal law’, “for these are not of this or of the next day merely, but ever exist; their prescript would I, not for the sake of any one, ——.” He must insist, also, that justice is some- thing substantially true and expedient, but not so that mere seeming of justice, so that neither is the written law, for it does not the duty of law. And that the judge is, as it were, an assay-master, that he may distinguish between counterfeit and real ideas of justice. And that it is the part of a better man to employ and abide by the unwritten law than the written. He should also observe, if the law which stands in his way be at variance with any ap- proved law, or be itself at variance with itself; thus sometimes one law directs that whatever men shall have covenanted should be valid; another forbids that they should covenant any thing contrary to the law. Observe, also, whether it be equivocal, so that you may wrest it to your purpose, and discover to which construction either justice or expediency will best adjust itself; then let him avail himself of that law. And if the circumstances under which the law was enacted be no longer remaining‘, but the law itself is remaining, he should endeavour to make this clear, and battle against it on this ground. But should the written law be in favour of his case, the orator then must state that “the best of one’s judgment” is inserted, not for the sake of a judge’s deciding contrary © to the law, but in order that, if he be ignerant of what the law directs, he may not forswear himself. He should insist also, that no one chooses good in the abstract, but what is so to himself; and that there is no difference between a law not enacted and one not put in force. And he should observe that, in other arts, it advantages not for one to indulge himself in such over-wisdom; as, for example, in respect of a + Already quoted in chap. 13, ᾧ 2. * Vide the arguments adduced in favour of Catholic emane ipation.
8.
On wit- nesses, which are two- fold.
i. παλαι- οἱ.
ii. πρό- σφατοι.
nesses of. the future are sooth- sayers. Proverbs are wit- nesses.
96 ARISTOTLE’S [BooK κα physician; for there the errors of his physician do not so greatly hurt a man, as the habituating himself to disobey him who has the direction of his health. And that the seeking to be wiser than the law, is the very thing which in well-approved laws is prohi- bited. And on the subject of laws let such be our distinctions.
But to the subject of Witnesses: witnesses are twofold, some ancient, others modern ὅ, and of these some are partners in the risk, others are uninvolved in it. I mean by ancient witnesses, both poets and all other illustrious persons whose decisions are open to the world; as, for example, the Athenians em- ployed Homer as their witness in the matter of Salamis; and the people of Tenedos but recently employed Periander the Corinthian, against the people of Sigeum; Cleophon, also, employed the Elegies of Solon against Critias, saying, that the family of old time was a dissolute one, for Solon would never otherwise have said, “ Go, bid my Critias, with his yellow locks, to listen to his father.” Such, then, are the witnesses on the subject of the past. But, respecting the future, we have also soothsayers; thus Themistocles insisted that they were to engage by sea, alleging the expression the wooden wall®. Moreover, proverbs also are testi- monies, according to what has been stated above’; as, if one were going to advise another not to make an old man his friend, the proverb testifies to that point, “Never benefit an old man;” also as to the taking off the children whose parents one has slain, “Foolish is he who having slain the father shall 5 IIpdcparor seems to imply viva voce witnesses, those from whom oral testimony may be gained, and perhaps for that reason applied to signify modern in general.
6 See Herodotus, Polymnia, 143.
7 That is, according to his declaration that any known de- cisions of illustrious persons might be of service in proof. Now proverbs have the advantage of being universally knows, and are acquiesced in by all as the decisions of mien of prudence at least. Vater explains the passage differently. vid. Animady.
CHAP. Xv.| RHETORIC. 97 ieave the son behind*’.” Modern witnesses are 15. Mo- all those people of note who have passed an opi- ee nion on any point; for these their opinions are partake of useful to those who are debating on the same ques- the risk, tions; as Eubulus, for instance, in the trial against Chares, availed himself of that saying of Plato, in reference to Archibius, that ‘the avowal of being wicked has gained ground in the city.” Also those who participate the risk, should they appear to falsify. Witnesses, however, of this class, prove merely such 16. and points as these; whether the fact has or has not pags μίας taken place; whether it be in existence or not; but g¢4.
as to the further question of its character, they are not at all witnesses; on the questions, for instance, whether a thing be just or unjust, expedient or prejudicial. But witnesses who are at a distance? are 17. very credible, even touching questions of this nature.
But ancient witnesses are of supreme credibility!°, Mest an- because they are beyond the reach of corruption. 6" ei But in reference to testimony the following may be dible. adduced as confirmations of proof, by the orator, Argu- namely, who has no witnesses: it should be insisted ee that the judge ought to decide from probabilities, μας no and that this is the spirit of his oath, “to the best witnesses: of his judgment.” Let him also say that it is im- possible to lead probability astray on the score of money; and that probability never is detected bearing false testimony. But it must be urged by him and for who has witnesses, against him who has them not, Rise who that neither is probability amenable to trial; and το that there would be no need at all of offering testimony, if it were enough to consider matters on the ground of reasonings only. And testimony is partly 18. Testi 8 Vid. Herodot. i. 155. Cyrus is apprehensive of constant ee annoyance if he should not enslave the Lydians:---ὁμοίως γάρ μοι νῦν ye φαίνομαι πεποιηκέναι, ὡς εἴ τις πατέρα ἀποκτείνας, τῶν παίδων αὐτοῦ aot ® By the oi ἄπωθεν he should seem to imply both οἱ παλαιοὶ, and οἱ ἐκτὸς πρόσφατοι" the first removed by time, the last by their being unconcerned in the present question, which may be considered in one sense as a distance in puint of interest at least.
© TO ἐκ ποδῶν οὔτ᾽ αντιπίπτει Kai τετίμηται ἀφθόνων, Gregor. Naz. ἐν Στιχ. Hooker, vol. ii. p. 26. H vither for one’s self or the ad- versary.
19 .
ord. Deeds.
21. To be treated as witnesses. Argu- ments for him who has them on his side.
in reference to one’s self, partly in reference to the adversary; partly to fact, partly to moral character. Insomuch that it is plain that we can never be at a loss for testimony to suit our purpose; for if there be not at hand any such testimony, bearing on the case itself, as is either admitted on our own part, or opposed to our adversary, we still may have enough, bearing on the subject of moral character, with a view either to our own excellence of character, or our adversary’s depravity. Whatever else we allege on the subject of witnesses, as to their being friendly, inimical, or indifferent, of good character, or bad, or neither particularly, and whatever other distinctions of this kind there happen to be, must be alleged from the same places out of which we adduce enthymems.
But on the subject of Deeds, pleading is useful so ~ far as regards enhancing or depreciating their authority, or showing them to be valid, or void; in show- ing, if they exist on your own side, that they are de- serving credit and valid; if, however, they be on your adversary’s side, in showing the contrary. Now in order to set them out as deserving credit or undeserv- ing it, there is no difference from the process respect- ing witnesses. For of whatever characters those who have subscribed, or had the custody" of the deeds, happen to be, of the same authority will the deeds themselves also be. When, however, the deeds are acknowledged to have been made, we must, in case they be on our side, aggrandize their authority; for a deed is law, private and particular!*, And deeds ‘! Thus it is one of the arguments in favour of the validity of the prophecies of our Saviour’s coming, that they are con- tained in books of which the Jews, who are the enemies of Christianity, had the custody. See Horne’s Sermon on “ The case of the Jews.’’
12 Law is essentially distinguished from deeds or private compacts, in that it is a rule; “for a compact is a promise rreceeding from us, law is a command directed fo us. The language of a compact is, ‘I will, or will not, do this;’ that of a iaw is, ‘ Thou shalt, or shalt not, do it.” It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts we ourselves determine OMAP. στ ἢ RHETORIC. 99 do not make valid the law, but the law makes valid those deeds which are conformable to law. And, in short, the law is itself a sort of deed; so that who- ever casts discredit on, or does away deeds, does away, in fact, with law. Moreover the greater part of the bargains of men, and their voluntary transactions, are carried on by means of deeds: so that if these become invalid, the intercourse of mankind with each other is subverted. And it is easy enough to discover what other topics are adapted to the purpose. But should the deeds be opposed to you, and on the side of your adversary, these arguments will be to your purpose: —first, those with which one would contend against a law which made against him; for it is absurd if we think we are not bound to obey the laws, unless well enacted, and if the legislators have been guilty of mis- taking their point, but yet hold it necessary to abide by mere deeds. Next to argue that the judge is an arbiter of what is just, that he ought therefore to re- gard, not the matter of the deed, but something par- taking more of justice. And that it is not possible to alter what is just, either by fraud or force; for it has an existence in the nature of things!*: deeds, how- ever, are made both by persons who are imposed on, and those who are compelled to make them. Observe, moreover, whether it be in opposition to any written law, or any universal principle of right, and to the principles of justice and honour; whether again it be opposed to other later or earlier deeds; for either the later are valid, and the earlier invalid; or the earlier are correct, and the later have been obtained - by stratagem; urging whichever of these cases may happen to suit the purpose. Have an eye moreover to the matter of expediency, whether the deed stand in any respect in the way of the judges, and every other such consideration, for these may also be easily discovered.
and promise what shall be done, before we are obliged to do it; in laws we are obliged to act without ourselves determining or promising any thing at all.”” Blackstone, Comment. Introd- 23, Argu ments for him who has them not on his side.
4th. Tor- ture a kind of evidence.
When on our side.
When against us, u li. lil.
iv.
i. When the orator refuses to tender tke oath.
Torture is a xind of evidence, and appears to carry with it absolute credibility, because a kind of constraint is applied. Now, it is not at all difficult re- specting this to discern those considerations which the cause admits of, and to set them forth; out of which, should the torture be on our side, it is possi- ble to enhance its value, by insisting that of all evi dence this alone is true. Should it be, however, op posed to us, and on the side of our adversary, one may do away with the very truth, by declaiming against every sort of torture; for that men, when constrained, speak falsehood no less than truth, and will persist in not speaking the truth; and will easily falsify, as being likely the sooner to get off:'4 and one ought to have it in his power to allege, over and above all these considerations, some actual instances, which the judges are acquainted with, besides topics such as I have described,, On the subject of oaths we may make a four-fold division; for a party either tenders an oath, and ac- cepts it; or he does neither; or he does the one, and not the other; that is, he either tenders, but does not accept it; or accepts, but does not tender it.!9 Moreover, it may happen in a different way from this still, supposing the oath to have been previously taken by this or that party.
1. Now, an advocate does not tender an oath on the ground that men easily forswear themselves; and because the other party will take it, and never repay; but that he is of opinion that the judges, if his ad- 4 The Pandects (lib. xlviii. tit. xviii.) contain the senta- ments of the most eminent civilians on the subject of torture They confine it to slaves; and Ulpian acknowledges, ti’ ** Res est fragilis, et periculosa, et que veritatem fallet.’’
1° However strangely this wrangling for the administration of oaths may sound, at the present day, when they are uni- formly 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. Ixxxix. Art. 3, p. 79, 80. It was not till so late as the reign of Anne, that the English courts were authorized to ad- minister an oath to persons called by a prisoner on his defence.
CHAP. XV.4 RHETORIC. 101 versary does not take the oath, will give a verdict against him: that he esteems the risk which depends on the judges the preferable one, for in them he re- poses confidence, but in his adversary, none.
2. But an advocate declines accepting it on the ground of its being an oath for a pecuniary object; and because, if he were a worthless fellow, he would forswear himself without more ado; since it were 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 ro- bust 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 that he feels confidence in himself, but none in his adversary. Let him also declare, inverting the saying 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 Aimself to take an oath, in a question about which he calls on the Judges to give their verdict on oath.
4. If, however, he fenders the oath, let him insist that a willingness to intrust the question to the gods is a matter of piety; and that his adversary need; call on no other judges, since he throws the decision of the case into his own hands; and that an unwill- ingness to take an oath, in a question about which he calls upon other people to swear, is absurd.
Now, as it is thus plain how we are to speak in reference 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: £3 li. When he refuses to accept it.
iii. When he accepts it.
iv. When he tenders it.
32. Argu- ments for the same taken con jointly.
Argu- ments if any pre- vious oath has been taken, 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 rea- son 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 them- selves 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 If.
CHAP. Ff.
The necessity of investing the Judge with a favourable feeling.
THe materials, then, from which we must exhort and dissuade, praise and blame, accuse and defend, the notions also and propositions, useful in order to render these points credible, are those [which we have discussed]: for respecting these questions, and 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 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 isa point of great consequence, particularly in deliberative! 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.
1 Those subjects about which deliberative oratory is con- cerned, 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 reiy en- Grely on them.” Book i. chap. ii. § 4.
1. Diseussion of the πίστις ἐν τῷ ἤθει τοῦ λέγοντον.
δ. Three requisites for the orator’s gaining belief.
i. φρόνη- σις.
il. ἀρετή. ili, εὔνοια.
1. The . Now, as to a speaker’s appearing to be himself of a certain character, this point is more available in de- liberations: but the disposing the auditor in a certain way, in judicial cases; for things do not show them- selves in the same light to persons affected by love and by hatred, nor to those under emotions of anger, as to those who are disposed to placability; but they appear either utterly different in character, or at least different in degree. or to a judge who is affected by love toward the party respecting whom he pro- nounces his decision, that party appears either not at all to be unjust, or to be so in a very trivial degree. To a judge, however, who is affected by hatred, the case has a contrary appearance. So also to a person 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 deserv- ing belief; for so many in number are the qualities on account of which we lend our credit, independent- ly of proof adduced; and these are prudence, moral excellence, and the having our interests at heart?; (for men are fallacious in what they allege or advise by reason, either of all, or some, of these causes; for 6. 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 ex- cellence, 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 there- fore, of course, that the speaker who appears to pos- sess all these qualities, is considered by his audience as deserving credit®. Now the means by which men 2 See Pericles’s defence of himself, Thucyd. ii. 60; and above, book i. chap. vili. § 6.
3 A celebrated scholar of the present day, after having de~ scribed the eloquence of Mr. Fox, as remarkably characterized CHAP. 1.] RHETORIC, 105 may appear virtuous and prudent, are to be derived from what has been laid down on the subject of the virtues; for it is by help of the very same things, that an orator may invest himself, and any one else, in a certain character. The subject of feeling an in- terest, and of friendliness, must be discussed in my treatise of the passions, commencing henceforth. Passions‘ however are, all emotions whatsoever, on which pain and pleasure are consequent, by whose operation, undergoing a change, men differ in respect to their decisions: for instance, anger, pity, fear, and whatever other emotions are of such a nature, and those opposed to them. But it will be fitting to divide what I have to say, respecting each, into three considerations; to consider, respecting anger, for ex- ample, how those who are susceptible of anger are affected; with whom they usually are angry; and on what occasions. For, granted that we be in pos- session of one, or even two of these points, and not of them all, it will be impossible for us to kindle anger in the breast; and in the case of the rest of the passions in a similar way. In the same way, then, as on the subjects treated of above I have separately drawn up the several propositions, so let me do in re- spect of these also, and make my distinctions ac- cording to the manner specified.
CHAP. II. Persons agamst whom Anger is felt, and by whom, and why.
Let anger be defined! to be “a desire accompanied by pain of a revenge which presents itself, on acby πέστις ἠθικὴ, proceeds thus—*‘ Hac de causa, quos audienti mihi motus adhibere voluit, illi semper in animo oratoris imtwo first discussed before.
8. The latter to be known by the emotions, which must therefore be con- sidered.
9. The discussion is divided. into three heads in every in- stance, i.
ii, 1. Anger defin pressi et inusti esse videbantur.”” Parr’s Pref. to Bellenden,.
4 The definition, given more briefly in the Ethics, is “ ols ἕπεται ἡδονὴ ἢ λύπη." Eth. Nich. ii. 5.
1 Ὄρεξις ἀντιλυπήσεως. Eth, Nich.
2. Anger is felt ainst tie indi- vidual, not the species, Is attend- ed with pleasure, 3. We feel anger on ac- count of a supposed slight.
Three species of ὀλιγωρία. i, κατα- φρόνησις, ii, ἐπηρε- aoucs. iii. ἕβρις. 4 106 ARISTOTLE’S [Book It.
count of an apparent slight from persons acting to- ward one’s self, or some of one’s friends, unbecom- ingly.” Now, if anger be this, it must be that he who is affected by anger, is so affected invariably to- wards some individual (for instance, towards Cleon), but not towards mankind, generally: and this, be- cause the individual has already wrought some indig- nity, either on himself or some of his friends, or in- tends doing so. It must be also that there is a sort of pleasure consequent on all anger, arising out of the hope of avenging one’s self*; for the idea of at- taining what one desires is pleasant; and no one is desirous of objects which appear impracticable to him; and he who is under the affection of anger is desirous of objects which appear practicable to him. Where- fore it has been happily remarked of anger, that it is, “Far, far too dear to every mortal breast, Sweet to the soul, as honey to the taste*.”’ Because a sort of pleasure is consequent on it, as well on this account, as because men linger in thought on compassing revenge. Now the phantasy which then arises excites a pleasure within us, as do the phanta- sies of dreams. But as a slight is the operation of an opinion conceived of an object which appears not worth consideration (for we esteem things absolutely bad, and those which are good, and what conduces to them, to be worth some consideration; that however which is mere nothing, or absolutely trivial, we conceive worth none). There are three species of slight, contempt, vexatiousness, and contumely: for he who manifests contempt is guilty of a slight, since men contemn whatever they think worth nothing, and. what is worth nothing, they slight. Again, he who is vexatious appears to contemn, for vexatiousness is . a thwarting another’s wishes, not that any thing may accrue to the person himself who so impedes, but in 2 Compare lib. i. c. xi. § 9, οὐδεὶς yap ὀργίζεται τῷ ἀδὺυ- νάτῳ, K.T.
: Compare. book i. chap. xi. § 13; and also book i. chap. x §17. This is expressed in the Ethics, lib. iii. c. viii. Kai οἱ ἄνθρωποι δὴ ὀργιζόμενοι μὲν ἀλγοῖϊσι, esas poco δ᾽ ἥδονται, 4 Pope’s translation of Homer.
CHA?, τι.} RHETORIC. 107 order that something may not accrue to that other. Since, then, he slights not with a view to any ad- vantage to himself, it is plain that he conceives you can neither hurt him, (for, if he did, he would be afraid, and would not be guilty of slight,) nor can benefit him in any respect worth mentioning, since he would otherwise hold you in consideration, in order to become your friend.® He, too, who acts contume- liously manifests slight; for contumely is the doing and saying those things about which the person who is the subject of this treatment, has feelings of deli- cacy, not with a view that any thing should accrue to himself, other than what arises to him in the act, but in order that he may be gratified; for they who requite an injury, do not act contumeliously, but take revenge. Now the cause of the pleasure felt by those who act contumeliously, is that, by injuring, they conceive themselves to be more decidedly superior: on which account young men and the rich are given to contumely, for in manifesting the contumely, they conceive themselves superior. To contumely belongs the withholding of respect; but he who withholds respect, manifests slight; for that which is of no value, is held in no consideration, either good or bad. On which principle Achilles, in his anger, says, “ He hath withheld from me respect, for he hath seized and possesses my prize himself, having taken it from me.” And again, “ Like some unregarded vaga-