XV.

Corinthian, in a dispute with the inhabitants of CHAP. Sigeum, concerning their common boundaries; and Solon, the contemporary of Periander, was adduced as a witness by Cleophon, in the impeachment of Critias, the chief of the Thirty Tyrants, to prove that his family had long been notorious for profligacy: for Solon would not otherwise have said,

Bid Critias his father's blushes spare,

And curb the ringlets of his yellow hair.

These bear evidence of the past; for the future, men hearken to oracles, and their expounders; as the Athenians to Themistocles, when he said that "to betake themselves to their wooden walls," was to have recourse to their fleet, and combat the enemy by sea. Proverbs, the sure deductions of time and experience, have also much weight: thus, would we dissuade from courting the friendship of an old man, —

Cold is the gratitude of age 79 —

and would we exhort to the destruction of those whose resentment has been provoked,

'Tis mad to stab the sire, yet save the son.

Sentiments, recently expressed by venerated characters, have much influence in all parallel cases. Thus Eubulus, in the impeachment of Chares, employed with much effect the words of Plato against Archibios, "that through his example, villany dared to walk the city, in broad day, unmasked."

79 The Greek proverb having here the same sense, has too savage a sound, "Never do good to an old man."

so See Hist. of Ancient Greece, P. i. vol. iii. p. 479, &c.

BOOK

I.

more ex

Witnesses, liable to punishment in case of false testimony, and who thereby share in danThese ger with the contending parties, are examined empt from only to learn from them whether a position is, suspicion or is not, true; whether an event has, or has not, temporary, happened. Their business is simply to declare witnesses. the things said or done; but, concerning the

than con

quality of those things, their justice or their utility, they are not deemed impartial enough, or intelligent enough, to be consulted. It is quite otherwise with witnesses remote from the cause; their judgment is of avail precisely in those particulars, especially the judgments given in preceding ages of the world, and, therefore, totally exempt from the suspicion of corruption How testi- or partiality. The arguments relative to witmony is to be assailed nesses, are, in the first place, when not suffi or upheld. `ciently provided with them, that decisions ought

to be guided by probability and reason; that evidence of this kind is not to be bought, deceived, or intimidated; a judge will best evince his discretion in listening to proofs beyond exception, and which cannot, as often happens to witnesses, be convicted of falsehood and perjury. The party best provided with witnesses must view the matter under another aspect. He will allege that probabilities and conjectures may deceive as well as witnesses; and when they do so, are not, like witnesses, obnoxious to punishment: that if arguments drawn from signs and likelihoods were alone sufficient to substantiate the truth of facts, the wisdom of all ages would not, for this purpose, have had recourse

XV.

to testimony. The declarations of witnesses CHA P. may relate either to our client, or to his adversary; either to the transaction itself, or to the manners and character of the agents. Under allthese variations, the evidence of witnesses may generally be turned to account: they may be made to explain the business in the way most favourable to our own views, or most prejudicial to those of our opponent; and to indicate dispositions fair and good on our side, iniquitous and mischievous on the part of our adversary. As to the other distinctions concerning witnesses, whether they be friends, enemies, or altogether impartial; whether persons respectable, contemptible, or of an intermediate character, the argumentation regarding these and other differences, with a view that the evidence given may be either fortified or invalidated s1, must be entirely drawn from the topics above produced, concerning virtue and utility, and those that will immediately be exhibited, concerning the affections and passions.

tracts how

defended.

In contracts, the third kind of inartificial 3. Conproofs, the pleader's address may be employed to be atto enforce or weaken the obligation of them; to tacked or show that they have, or have not, been entered into. When they make in our favour, our endeavour must be to show the reality of their existence, and the expediency of maintaining them; when against us, they must by all means be discredited, which is done in the same way in

81 Aristotle says, "the topics from which enthymemes are taken;" meaning those specified in the text.

I.

BOOK which we discredit the testimony of witnesses: for faith in a contract depends solely on our confidence in those who have signed it, and those who have been its depositaries. The contract being sufficiently substantiated, and its conditions being favourable, the necessity of maintaining it may be clearly evinced, since contracts are nothing but particular and private laws, binding those who enter into them. These partial engagements, indeed, do not give authority to public and general laws; but the latter fully sanction the former, when made in the spirit of them; and the written law of states is itself a species of contract, so that to destroy the power of contracts, would be to abrogate and abolish law. Of human transactions, almost all those that are voluntary depend on stipulation and mutual engagement, so that were the authority of compacts to be easily invalidated, all those reciprocal aids would be taken away and destroyed, which men render to each other in the endless variety of their complicated exigencies. These and similar arguments may employed, when the covenant is in our favour: but when it ranks on the side of the adversary, we may combat it by the same weapons that are used against an iniquitous law. Strange, indeed, that even laws should be set aside when they appear to militate against justice and utility, and that contracts, equally reprehensible, should still be sustained! As in the Olympic games there are umpires to decide the prize of strength and velocity, so the judge is an umpire to decide

be

XV.

the prize of justice: superiority in this virtue CHAP. ought to be the sole object of his regard; this alone ought to command his decision, especially since the clear dictates of justice are neither to be warped by fraud, nor broken through by force, being indelibly impressed by nature on the human heart: whereas contracts are the work, sometimes of fraud, and sometimes of compulsion. We must also consider whether the contract in question be not in opposition to some written law or custom, or to some rule of equity; and whether it be not invalidated by some other contract, prior or posterior to it; for as both cannot be supported, we should thus have an opportunity of urging the arguments against either of them which we desire to invalidate. It is essential, also, to examine whether the contract we resist be not at variance with the public conveniency and interest, or with the interest and credit of the judges before whom we plead; which, and other topics of a similar kind, the nature of the subject will readily suggest.

nation by

concern

As to the question, or examinations by torture, 4. Examithe fourth kind of inartificial proofs, the whole torture, reasoning concerning them may be included with- arguments in a narrow compass. They are seemingly entitled ing it. to much weight, because, in them, the truth appears to be extorted by force: whoever would avail himself of such evidence must dwell, therefore, on this circumstance, and amplify confession by torture, as the surest and most irrefragable of all convictions. The adverse party, again, will maintain, and maintain with truth, that the qua