It follows in the next place that we should discuss what are called inartificial credibilities; for these are peculiar to forensic orations. But they are few in number, viz. the laws, witnesses, compacts, examinations, and an oath. In the first place, therefore, let us speak about laws, how they are to be used, both by him that exhorts, and him who dissuades, by him who accuses, and him who defends. For it is evident, that if the written law indeed is contrary to the affair, the common law must be used, and equity, as being more just. And it is also evident that the best decision will then be given, when the written laws are not entirely used. The equitable, likewise, always remains and never changes, and this too is the case with common law; for it is according to nature; but written laws are frequently changed. Hence, also, it is said in the Antigone of Sophocles, (for Antigone says as an apology, that she had acted contrary to the law of Creon, but not contrary to the unwritten law.) Nor could I ever think, A mortal’s law, of power or strength sufficient, To abrogate th’ unwritten law divine, Immutable, eternal, not like these, Of yesterday, but made ere time began. Shall man persuade me, then, to violate, Heaven’s great commands, and make the gods my foes? It is likewise evident that the just is something true and advantageous, but not that which seems to be so; so that what is written is not law; for it does not perform the work of law. It may likewise be said that a judge is like an assayer of silver and gold; for it is his province to distinguish what is truly just from what is adulterate. And, also, that it is the business of a better man rather to use unwritten than written laws, and to abide by their decision. It must likewise be considered whether the law in force is contrary to a law which is approved, or is itself contrary to itself; as when the one law commands all contracts to be firmly observed; and the other forbids any contracts to be made contrary to law. It must also be considered, whether the law is ambiguous, so that it may be distorted, and then it must be seen to what part the just is to be adapted, or the advantageous, and afterwards the law is to be used. If, also, the things for which the law was established no longer remain, but the law itself remains, this we must endeavour to render manifest, and thus the law must be opposed by showing that things being changed, the law also is to be changed and abrogated. But if the written law is adapted to the occasion or the fact, then it must be said as the result of the best decision, that the law was established not for the sake of judging contrary to law, but in order that he may not be perjured who may happen to be ignorant what the law says. It must likewise be asserted, that no one chooses that which is simply good, but that which is good to himself. And that it makes no difference whether laws are not established, or are not used. Likewise, that in other acts it is of no advantage to dispute against the masters of them. Thus for instance, it is not expedient for one who is sick to dispute against the prescriptions of the physician; for the error of the physician is not so injurious, as it is to be accustomed to disobey a ruler. To endeavour likewise to become wiser than the laws, is that which is forbidden in celebrated laws. And thus much concerning laws. With respect to witnesses, however, there are two kinds; for some are ancient; but others modern. And of the latter, some are partakers of danger, but others are exempt from it. But I call ancient witnesses the poets, and other illustrious persons whose judgements and opinions are manifest. Thus the Athenians made use of Homer as a witness about Salamis; the Tenedians of Periander the Corinthian, against the Sigœans; and Cleophon made use of the elegies of Solon against Critias, in order that he might show that the family of Critias was formerly contumacious. For otherwise Solon would never have said, “Bid Critias with his yellow locks, His father’s will obey.” Such, therefore, are the witnesses about things that are past. But with respect to future events those who interpret oracles are witnesses; as for instance, Themistocles, when he said that the wooden wall mentioned by the oracle signified that the Athenians must betake themselves to their ships. Proverbs also are witnesses. Thus, if some one should deliberate whether he should form a friendship with an old man, the proverb testifies what he is to do, which says, Never confer a benefit on an old man. Thus, also, for him who deliberates whether he shall slay the children, whose parents he has likewise slain, there is this proverb, He is a fool who having slain the father leaves the children. Modern or recent witnesses, however, who have no share in the danger, are such as being illustrious have given a decision in a court of justice. For the judgements of these men are useful in the confirmation of what is doubtful. Thus, Eubulus in a court of justice, employed against Chares, what Plato had said against Archibius, That it was common in the city for men to acknowledge themselves to be depraved. Those also are recent witnesses, who partake of the danger of being punished if they appear to have given false evidence. Persons, therefore, of this description are alone witnesses in things of this kind; viz. whether the thing has been done or not; and whether it is, or not. But they are not witnesses concerning the quality of the thing; as, whether it is just or unjust, advantageous, or disadvantageous. Remote witnesses, however, are most worthy of belief in things of this kind; but the ancients are most worthy of belief; for they cannot be corrupted. The credibility, however, derived from witnesses is to be employed as follows. When, indeed, there are no witnesses, it is necessary to judge from probabilities; and this it is to employ the best decision. Probabilities, also, cannot be corrupted by money; and they are not condemned for giving a false testimony. But he who has witnesses ought to say to him that has not, that witnesses may be tried and punished, but probabilities cannot. It may also be added, that there would be no occasion for witnesses, if arguments from probabilities were sufficient. Testimonies, however, are either concerning ourselves, or concerning our opponents; and some, indeed, are concerning the thing itself; but others concerning the manners of persons. Hence, it is manifest that we can never be in want of useful testimony; for if the testimony does not relate to the thing, it will either be favourable to the defendant, or adverse to the plaintiff. But the testimony respecting manners, will either evince our probity, or the depravity of our opponent. Other particulars, however, respecting a witness, whether he be a friend, or an enemy, or neither, whether he be a man of reputation, or an infamous character, or neither, and whatever other differences there may be of the like kind, must be derived from the same places from which enthymemes are derived. With respect to compacts, an oration is so far useful as it increases or diminishes their authority; or so far as it renders them credible, or unworthy of belief. For it is favourable to the speaker to show that the compacts possess credibility and authority; but the contrary is favourable to the opponent. The same arguments, therefore, are to be employed in showing that compacts are worthy or unworthy of belief, as we have employed in the affair of witnesses. For such as those persons are who have subscribed and signed the compacts, with respect to being worthy or unworthy of belief, such also are the compacts. When, however, it is acknowledged by the litigants that compacts were made, if this acknowledgement is appropriate, the authority of the compacts is to be increased; for a compact is a private law, and is of a partial nature. And compacts, indeed, do not give authority to the law; but the laws give authority to legal compacts. And in short, the law itself is a certain compact; so that he who disbelieves in and subverts a contract, subverts the laws. Farther still, many contracts and voluntary transactions, are effected by compacts; so that if compacts lose their authority, the intercourse of men with each other must be subverted. Other things, also, which are adapted to the confirmation of compacts, the orator will perceive by himself. But if the compacts are adverse to the cause, and favourable to the opponents, in the first place those are adapted to the purpose which some one may urge to invalidate the force of the contrary law; for it is absurd that we should think laws are not to be obeyed, which have not been established rightly but by fraud, and that we should not think it necessary to observe compacts which have been rightly made. In the next place it must be said that a judge is a dispensator of what is just; and therefore that his attention is not to be directed to the observance of the compacts, but to that which is more just. And the just indeed is not to be perverted either by fraud, or by necessity; for it has a natural subsistence; but compacts are made both by persons who are deceived, and those who are compelled. In addition to these things, also, it is requisite to consider whether the compact is contrary to any written or common law, and to things just or beautiful; and besides this, whether it is contrary to any posterior or prior contracts. For either the posterior contracts are binding, but the prior have no authority; or the prior are right, but the posterior fallacious; and thus this contrariety of compacts may be employed with advantage. Again, it will be expedient to see whether the compacts are in any way adverse to the judges, and to direct the attention to other things of the like kind; for these things may in a similar manner be easily perceived. Examinations, also, and torments are certain testimonies; and they seem to possess credibility, because a certain necessity is present with them. There is no difficulty, therefore, in perceiving what relates to these things, and in narrating what is contingent to them; as also in discussing those particulars, which if they are adapted to our purpose we may amplify by asserting that these alone are true testimonies. But if they are against us, and favourable to our opponent, then the evidence may be invalidated by speaking against the whole genus of examinations and torments. For men through compulsion no less assert what is false than what is true; since they endure in order that they may not speak the truth, and readily assert what is false, in order that they may be more swiftly liberated from pain. For collateral confirmation, also, it is requisite that examples should be adduced, with which the judges are acquainted. With respect to oaths, however, there is a fourfold consideration. For we either give and take an oath; or we do neither. Or we do the one, but not the other. And of these either an oath is given, but not taken; or it is taken, but not given. Again, either we have sworn before, and are accused by our opponent of perjury, or the opponent swears and is accused of perjury. He therefore who does not offer an oath to his opponent may say that men are easily perjured; and that his opponent if he should take an oath, would not restore the money, but if he did not take an oath, he should think the judges would condemn him. He may also add, that as the affair is dangerous, it is better to commit it to the judges; for he believes in them, but not in his opponent. He likewise who does not take the oath which is offered him, may say that he does not take it, because he is unwilling to swear for money; and that if he was a bad man he would take an oath; for it is better to be depraved for the sake of something than for the sake of nothing. For by taking an oath he will obtain money, but otherwise not. His not taking an oath therefore will be the effect of virtue, and will not be the consequence of the fear of perjury. The saying of Xenophanes, likewise, may be adapted to this affair, that the challenge is not equal of an impious against a pious man, but is just as if a strong should call upon a weak man to fight with him. He also who takes an oath may say that he takes it, because he confides in himself, but not in his opponent. And by inverting the assertion of Xenophanes he may say, that the challenge is equal, if an impious man offers, but a pious man takes an oath. And that it is a dreadful thing he should not be willing to swear respecting those things for which he thinks it right that the judges should pass sentence on those that take an oath. But if he offers an oath, he may say that it is pious to be willing to commit the affair to the gods; and that there is no occasion for his opponent to require any other judges; since the judgement of the cause is committed to him through an oath. He may, likewise, say that it is absurd that his opponent should not be willing to swear concerning those things about which he requires others i.e. the judges to swear. Since, however, the manner in which we ought to speak, according to each of these four modes, is evident, it is likewise evident how we ought to speak according to these modes when combined; as for instance, if a man is willing indeed to take, but not to give an oath; or if he gives, but is unwilling to take it; or if he is willing both to give and take it; or is willing to do neither. For a combination must necessarily be made from the above-mentioned modes; so that arguments also must necessarily be composed from them. If, however, any one has before taken an oath, and which is contrary to the present oath, it must be said that there is no perjury. For to do an injury is a voluntary thing; but things which are done by violence and fraud are involuntary. Hence, therefore, it must be inferred that injury is committed in the mind, and not in the mouth. But if the opponent has before sworn, and is now unwilling to abide by his oath, it must be said that he subverts all things who does not adhere to what he has sworn; for on this account, also, judges that have taken an oath use the laws. And it may likewise be said in the way of amplification, shall we rejoice, indeed, that you judges should abide in the decision which you have made, after taking an oath; and shall not we abide in the oaths which we have taken? And such other things as may be said for the purpose of amplification. And thus much concerning inartificial credibility.
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