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may deserve consideration for some allowances may be judged reasonable in case of friendship, or enmity, where there is no room for any other exception. But regard should chiefly be had to what they testify, and how far the cause is effected by it. Cicero is very large upon most of these heads in his defence of Marcus Fonteious, with a design to weaken the evidence of the Gauls against him. And where witnesses are produced on one side only, as orators sometimes attempt to lessen the credit of this kind of proof, by pleading that witnesses are liable to be corrupted or biassed by some prevailing interest or passion to which arguments taken from the nature and circumstances of things are not subject, it may be answered on the other hand, that sophistical arguments, and false colourings, are not exposed to infamy or punishment, whereas witnesses are restrained by shame and penalties, nor would the law require them if they were not
The third and last head of external arguments are Contracts, which may be either public or private. By public are meant the transactions between different states, as leagues, alliances, and the like; which depend on the laws of nations, and come more properly under deliberative discourses, to which I shall refer them. Those are called private which relate to lesser bodies or societies of men, and single persons; and may be either written or verbal. And it is not so much the true meaning and purport of them, that is here considered, as their force and obligation. And as the Roman law declares, Nothing can be more agreeable to human faith, than that persons should stand to their agreements, therefore in controversies of this
kind, the party whose interest it is that the contract should be maintained wili plead that such covenants have the force of private laws, and ought religiously to be observed, since the common affairs of mankind are transacted in that manner; and therefore to violate them is to destroy all commerce and society among men. On the other side it may be said, that justice and equity are chiefly to be regarded, which are immutable. And besides, that the public laws are the common rule to determine such differences, which are designed to redress those who are aggrieved. And, indeed, where a compact has been obtained by force or fraud, it is in itself void, and has no effect either in law or reason. But on the other hand, the Roman lawyers seem to have very rightly determined, that all such obligations as are founded in natural equity, though not binding by national laws, and are therefore called nuda pacta, ought, however, in honour and conscience, to be performed.
Thus I have gone through the common heads of invention, both internal and external, which may be of service to an orator, when his view is to inform his hearers, and prove the truth of what he asserts. But the particular application of them, to the several sorts of discourses he may have occasion to treat upon, I shall now proceed to explain.
Of the State of a Controversy.
The ancients observing, that the principal question or point of dispute, in all controversies, might be referred to some particular head, reduced those heads to a certain number; that both the nature of the ques
tion might by that means be better known, and the arguments suited to it be discovered with greater ease. And these heads they call States.
By the State of a Controversy then we are to understand the principal point in dispute between contending parties, upon the proof of which the whole cause or controversy depends. We find it expressed by several other names in ancient writers: as, The constitution of the cause, The general head, and The chief question. And as this is the principal thing to be attended to in every such discourse, so it is what first requires the consideration of the speaker, and should be well fixed and digested in his mind before he proceeds to look for arguments proper to support it. For what can be more absurd than for a person to attempt the proof of any thing before he has well settled in his own mind a clear and distinct notion what the thing is which he would endeavour to prove: Quintilian describes it to be That kind of question which arises from the first conflict of causes. In judicial cases it immediately follows upon the charge of the plaintiff, and plea of the defendant. Our common law expresses it by one word, namely, the Issue: which interpreters explain, by describing it to be, That point of matter depending in suit, whereupon the parties join, and put their cause to the trial. Examples will further help to illustrate this, and render it more evident. In the cause of Milo, the charge of the Clodian party is, Milo killed Clodius. Milo's plea or defence, I killed him, but justly. Hence arises this grand question, or state of the cause: Whether it was lawful for Milo to kill Clodius? And that Clodius was lawfully killed by Milo, is what Cicero in his defence of Milo
principally endeavours to prove. This is the main subject of that fine and beautiful oration. The whole of his discourse is to be considered as centering at last in this one point. Whatever different matters are occasionally mentioned, will, if closely attended to, be found to have been introduced some way or other, the better to support and carry on this design. Now in such cases, where the fact is not denied, but something is offered in its defence, the state of the cause is taken from the defendant's plea, who is obliged to make it good. As in the instance here given, the chief point in dispute was the lawfulness of Milo's action, which it was Cicero's business to demonstrate. But when the defendant denies the fact, the state of the cause arises from the accusation; the proof of which then lies upon the plaintiff, and not, as in the former case, up on the defendant. So in the cause of Roscius, the charge made against him is, That he killed his father. But he denies the fact. The grand question therefore to be argued is: Whether or not he killed his father? The proof of this lay upon the accusers. And Cicero's design in the defence of him is to show, that they had not made good their charge. But it sometimes happens, that the defendant neither absolutely denies the fact, nor attempts to justify it; but only endeavours to qualify it by denying that it is a crime of that nature, or deserves that name by which it is expressed in the charge. We have an example of this proposed by Cicero: A person is accused of sacrilege, for taking a thing that was sacred, out of a private house. He owns the fact, but denies it to be sacrilege: since it was committed in a private house, and not in a temple. Hence this question arises: Wheth
er to take a sacred thing out of a private house is to be deemed sacrilege, or only simple theft? It lies upon the accuser to prove, what the other denies; and, therefore, the state of the cause is here also, as well as in the preceding case, taken from the indictment. But besides the principal question, there are other subordinate questions, which follow upon it in the course of a dispute, and should be carefully distinguished from it: particularly that which arises from the reason or argument which is brought in proof of the principal question. For the principal question itself proves nothing, but is the thing to be proved, and becomes at last the conclusion of the discourse. Thus in the cause of Milo, his argument is; I killed Clodius justly, because he assassinated me. Unless the Clodian party be supposed to deny this, they give up their cause. Hence therefore this subordinate question follows: Whether Clodius assassinated Milo? Now Cicero spends much time in the proof of this, as the hinge on which the first question, and consequently the whole cause, depended. For if this was once made to appear, the lawfulness of Milo's killing Clodius, which was the grand question or thing to be proved, might be inferred, as an allowed consequence from it. This will be evident, by throwing Milo's argument, as used by Cicero, into the form of a syllogism:
An assassinator is lawfully killed:
Clodius was an assassinator :
Therefore he was lawfully killed by Milo, whom
If the minor proposition of this syllogism was granted, no one would deny the conclusion; for the Roman