第29章 15(1)

There are also the so-called 'non-technical' means of persuasion; and we must now take a cursory view of these, since they are specially characteristic of forensic oratory. They are five in number: laws, witnesses, contracts, tortures, oaths.

First, then, let us take laws and see how they are to be used in persuasion and dissuasion, in accusation and defence. If the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice. We must argue that the juror's oath 'I will give my verdict according to honest opinion' means that one will not simply follow the letter of the written law. We must urge that the principles of equity are permanent and changeless, and that the universal law does not change either, for it is the law of nature, whereas written laws often do change. This is the bearing the lines in Sophocles' Antigone, where Antigone pleads that in burying her brother she had broken Creon's law, but not the unwritten law:

Not of to-day or yesterday they are, But live eternal: (none can date their birth.)

Not I would fear the wrath of any man (And brave God's vengeance) for defying these.

We shall argue that justice indeed is true and profitable, but that sham justice is not, and that consequently the written law is not, because it does not fulfil the true purpose of law. Or that justice is like silver, and must be assayed by the judges, if the genuine is to be distinguished from the counterfeit. Or that the better a man is, the more he will follow and abide by the unwritten law in preference to the written. Or perhaps that the law in question contradicts some other highly-esteemed law, or even contradicts itself. Thus it may be that one law will enact that all contracts must be held binding, while another forbids us ever to make illegal contracts. Or if a law is ambiguous, we shall turn it about and consider which construction best fits the interests of justice or utility, and then follow that way of looking at it. Or if, though the law still exists, the situation to meet which it was passed exists no longer, we must do our best to prove this and to combat the law thereby. If however the written law supports our case, we must urge that the oath 'to give my verdict according to my honest opinion' not meant to make the judges give a verdict that is contrary to the law, but to save them from the guilt of perjury if they misunderstand what the law really means. Or that no one chooses what is absolutely good, but every one what is good for himself. Or that not to use the laws is as ahas to have no laws at all. Or that, as in the other arts, it does not pay to try to be cleverer than the doctor: for less harm comes from the doctor's mistakes than from the growing habit of disobeying authority. Or that trying to be cleverer than the laws is just what is forbidden by those codes of law that are accounted best.-So far as the laws are concerned, the above discussion is probably sufficient.

As to witnesses, they are of two kinds, the ancient and the recent; and these latter, again, either do or do not share in the risks of the trial. By 'ancient' witnesses I mean the poets and all other notable persons whose judgements are known to all. Thus the Athenians appealed to Homer as a witness about Salamis; and the men of Tenedos not long ago appealed to Periander of Corinth in their dispute with the people of Sigeum; and Cleophon supported his accusation of Critias by quoting the elegiac verse of Solon, maintaining that discipline had long been slack in the family of Critias, or Solon would never have written, Pray thee, bid the red-haired Critias do what his father commands him.

These witnesses are concerned with past events. As to future events we shall also appeal to soothsayers: thus Themistocles quoted the oracle about 'the wooden wall' as a reason for engaging the enemy's fleet. Further, proverbs are, as has been said, one form of evidence. Thus if you are urging somebody not to make a friend of an old man, you will appeal to the proverb, Never show an old man kindness.

Or if you are urging that he who has made away with fathers should also make away with their sons, quote, Fool, who slayeth the father and leaveth his sons to avenge him.

'Recent' witnesses are well-known people who have expressed their opinions about some disputed matter: such opinions will be useful support for subsequent disputants on the same oints: thus Eubulus used in the law-courts against the reply Plato had made to Archibius, 'It has become the regular custom in this country to admit that one is a scoundrel'. There are also those witnesses who share the risk of punishment if their evidence is pronounced false. These are valid witnesses to the fact that an action was or was not done, that something is or is not the case; they are not valid witnesses to the quality of an action, to its being just or unjust, useful or harmful. On such questions of quality the opinion of detached persons is highly trustworthy. Most trustworthy of all are the 'ancient' witnesses, since they cannot be corrupted.

In dealing with the evidence of witnesses, the following are useful arguments. If you have no witnesses on your side, you will argue that the judges must decide from what is probable; that this is meant by 'giving a verdict in accordance with one's honest opinion'; that probabilities cannot be bribed to mislead the court; and that probabilities are never convicted of perjury. If you have witnesses, and the other man has not, you will argue that probabilities cannot be put on their trial, and that we could do without the evidence of witnesses altogether if we need do no more than balance the pleas advanced on either side.