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them to a
peachd. Now, of the multitude, some do this at rancan reduce dom; others, by reason of practice, from habit; but as it is possible either way, it is plain that the case will admit of our reducing these things to a system. For we are at liberty to speculate on the causes of the success, as well of those who from practice, as of those who on the spur of the moment, [attempt either to convince or to persuade]. And every one will be antecedently prepared to acknowledge that an undertaking of this description is the business of art.
on previous systems.
Hitherto, however, such as have compiled systems of oratory have executed a very trifling part of it; for the means of making credible alone come pro
d ̓Εξετάζειν καὶ ὑπέχειν, quà Logicians ; ἀπολογεῖσθαι καὶ κατηγορεῖν, quà Rhetoricians: so that the faculties which form the basis of each of these arts appear to be natural to every man. Zeno elegantly illustrated the distinction between the two by a simile taken from the hand. The close power of Logic he compared to the fist, or hand compressed; the diffuse power of Rhetoric to the palm, or hand open. Cicero, Orator.
• The vulgar can give reasons to a certain degree, and can examine, after a manner, the reasons given them by others. And what is this but NATURAL LOGIC? If therefore these efforts of theirs have an effect, and nothing happen without a cause, this effect must of necessity be derived from certain principles. The question then is, What these principles are; for if these can once be investigated, and then knowingly applied, we shall be enabled to do by rule what others do by hazard; and in what we do, as much to excel the uninstructed reasoner, as a disciplined boxer surpasses an untaught rustic. Harris's Philosophical Arrang, ch. i.
An effect is produced; sometimes indeed accidentally, and sometimes from the person's having been habituated to that which he attempts. Now if we can ascertain and methodise the causes of this his success, so as to ensure the success of subsequent attempts, we shall have constructed something similar to an art: for, in some points, chance and art are not unlike; whence the verse of Agatho;—
Τέχνη τύχην ἔστερξε, καὶ τύχην τέχνην.
See Eth. Nich. vi. 4. Ilioric.-If the translation of this word shall appear frequently to be vague and indeterminate, the reader is requested to observe that we have no equivalent expression in English; for it is conceived that "proof" (the usual translation) always implies something qualified to convince the understanding; whereas Aristotle designates by the word ioric, every thing which has a tendency to persuade the will. It is not, however, meant to be denied that proof (properly such) frequently has, and always ought
peals to the
perly within the sphere of the art, but other points are merely adscititious. On the subject of enthymems, Neglect of the πίστις. however, which in point of fact is the very body of proof, these men say not a word; while on points foreign to the subject they busy themselves most mightily. Now the feeling of ill-will", pity, and anger, 4. Hence and the like emotions of the mind, appertain not to the case, but refer to the judge; so that if, in regard to all passions. judicial processes, matters were regulated as they now are in some states, (and more particularly in such as are well constituted,) these spokesmen would not have a word to say. And every one [approves the regula- 5. tion], whether they think that the law should hold this language, or whether they avail themselves of the rule, and positively forbid to speak irrelevantly to the case; just as they do in the Areopagus, observing this usage properly enough. For it is not right that an orator should bias the judge by winning him on to anger, or pity, or jealousy; since it is equally absurd as though one were to make a ruler crooked which he is about to use. It is further evident that the pleader's business 6. is nothing more than to prove the matter of fact, either that it is, or is not the case; that it has, or has not happened. But as to the question whether it be important or trifling, just or unjust, whatever questions of
to have, a tendency to persuade; but, at the same time, it would be too much to say that it is the only thing which is qualified to do so. Vide Mitchell's Aristoph. vol. i; Pal. Diss. p. 72; ibid. p. 75.
h For a similar use of the word daßoλn, cf. Thucyd. lib. i, c. 127.-ov μέντοι τοσοῦτον ἤλπιζον παθεῖν ἂν αὐτὸν τοῦτο, ὅσον διαβολὴν οἴσειν αὐτῷ πρὸς τὴν πόλιν.
· Κριτὴς τοῦ νόμου κάνων. Aristotle employs the same metaphor in his Ethics :-τοῦ γὰρ αὐρίστου, αὔριστος καὶ ὁ κακών ἐστιν, ὥσπερ καὶ τῆς Λεσβίας οἰκοδομῆς, ὁ μολύβδινος κανών· πρὸς γὰρ τὸ σχῆμα τοῦ λίθου μετακινεῖται, καὶ οὐ μένει ὁ κανών. Lib. v, c. 10. See Lucretius, iv, 516.
Denique ut in fabrica, si prava est regula prima,
Omnia mendose fieri atque obstipa necesse est, etc.
this nature the legislator has not determined; on these the judge must somehow or other make up his mind of himself, and not take instructions on them from the 7. Reasons parties at issue. It would then be most admirably why as litadapted to the purposes of justice, if laws properly sible should enacted were, as far as circumstances admitted, of themselves to mark out all cases, and to abandon as few as 1st. possible to the discretion of the judge. And this because, in the first place, it is easier to get one or a few
tle as pos
be left to
of good sense, and of ability to legislate and adjudge, 2nd. than to get many1: and next to this, legislative enactments proceed from men carrying their views a long time back; [or, from men who have reflected on the subject for a long time;] while judicial decisions are made off hand; so that it is difficult for persons deciding under these circumstances to assign what is just and 3rd. expedient: and, what is most of all to the point, is this, that the award of the legislator is not particular nor about present circumstances, but about what is future and general; whereas the member of a popular assembly and the judge decide on points actually present and definite; and under their circumstances, feelings of partiality, and dislike, and personal expediency, will, in many instances, antecedently have been interwoven with the case; and to such a degree, that one is no longer able, adequately, to contemplate the truth, and that personal pleasure or pain throws a shade over the judgment. In regard, then, to other particulars, as I
As the young man can learn consequences (örɩ) ere he discovers principles (tórt, Eth. lib. i.) so can most men better judge of individual cases by δικαστικὴ φρόνησις, than frame laws by νομοθετικὴ φρόνησις (Eth. lib. vi). And this is proved by the universal bias of orators to individual cases founded on law. To borrow an illustration from the arts, we may say that as a person placed in the centre of a landscape has a fuller view of any individual object in it than the painter himself, but loses proportionately the general effect; so the judge can discern all the particulars of a given case, but cannot, as the legislator who contemplates at a distance, view so well the general bearings and effects of any law when united or contrasted with others. Cf. also the Ethics, lib. v, c. i.—ópowe̟ μèv vóμoc ὁ κείμενος ὀρθῶς· χεῖρον δὲ ὁ ἀπεσχεδιασμένος.
must be left
observed, it is right to leave the judge a discretion in questions of as few as possiblem: but questions of fact, whether it fact, etc. has or has not taken place, will or will not happen, to him. does or does not exist; all such it is necessary1 to abandon to the discretion of the judges; since it is not possible that the legislator ever should foresee them.
If these things be so, it is plain that they embrace in 9. their systems matters foreign to the subject, who give us explanations of the other points, as for instancewhat the proem, and the narration, and the other divisions, ought severally to embrace: for in these treatises they busy themselves about nothing else, except how to render the judge of a certain disposition; while on the subject of those means of persuasion, recognised by art, they discover nothing; and yet this is the source whence an orator may become a good reasoner. And it is for this reason that, notwithstanding the 10. Reasons why same system is conversant about deliberative and judi- men prefer cial cases, and although the business of the senate is judicial to more honourable, and embraces higher social interests, oratory. than that whose subject is merely the transactions of individuals; yet about the former they say not one word, while all undertake to frame systems of judicial pleading. And they are not without a reason for this,
m Cf. Hooker, v, § 9, p. 36.
" It is not in the nature of things that any human legislator should determine on the infinite number of possible cases; or that he should not, with regard to some, be an unsafe guide to our decisions for the last of these inconveniences we have a remedy in Tuikɛia; since equity is, as he subsequently describes it, τὸ τοῦ ἰδίου νόμου καὶ γεγραμμένου ἔλλειμμα, and τὸ παρὰ τὸν γεγραμμένον νόμον δίκαιον.-lib. i, c. xiii, f 13. And again in the Ethics, ἐπανόρθωμα νόμου, ᾧ ἐλλείπει διὰ τὸ καθόλου, v, 10. • This error is a consequence on the one mentioned before, § 3: from the disregard there noticed of the enthymem and wiσriç, orators are naturally led to attach themselves to that branch of public speaking which requires enthymem least; and such is judicial pleading, inasmuch as the cause there rests mainly on evidence, properly so called, on the ȧrixvai iGT. Aristotle himself gives as another reason for this preference, the greater ease of judicial oratory (vide lib. iii, c. xvii, § 10). And this he proves, first, because that which has been is plain to all, even to diviners; secondly, the orator having law for a premiss, the demonstration
since in deliberative speeches it is less worth while to state matters foreign to the subject, and a deliberative speech admits less of malicious sophistry than judicial pleading, but is more widely interesting; for here the judge [i. e. the senator] decides on questions which nearly interest himself, so that no more is necessary than to prove that the question stands just as he, the adviser, asserts. In judicial questions, however, this is not sufficient, but it is worth while to engage the hearer; for the decision is about a case which does not affect himself: so that the judges looking to their own gratification, and listening with a view to amusement, surrender themselves up to the pleaders; and, strictly speaking, do not fulfil the character of judges P. On which very account the law, in many places, as I before remarked, forbids the saying any thing irrelevant; but there [in deliberative assemblies] the judges are, of themselves, careful enough of this.
is easier. To these reasons may be added one which the master of Alexander would not willingly have allowed, namely, the loss of liberty to Greece, and the consequent loss of all interest in deliberative questions, to men whose future fates were totally out of their own power.
PA writer in the Quarterly Review, No. 26, after contrasting the perplexity of English law with the simplicity of Athenian jurisprudence, says, "This simplicity in the law made it the orator's business less to hunt for cases and precedents than to discriminate character; less to search for errors in a bill than for flaws or errors in a witness's life or testimony. And the prevalence of this practice may be inferred from a subsequent passage in this book (c. ix, § 38), where Isocrates is mentioned as an adept in the comparison of characters, "which," says Aristotle, "he used to do to further his familiarity with judicial pleading." To this we may subjoin the following remarks of Mitford on a speech of Alcibiades: "The multitude ordinarily composing an Athenian court of justice was so great, that the pleaders always addressed it as under the impulse of the same interests, and subject to the same feelings as the general assembly, and equally without responsibility. Impartiality was never supposed; the passions were always applied to; and it never failed to be contended between the parties, which could most persuade the jurors that their interest was implicated with his, and that by deciding in his favour they would be gainers." Hist. of Greece, vol. v, p. 94. So also Xenophon, in his Athenian Republic, c. i, § 13.—ἔν τε τοῖς δικαστηρίοις οὐ τοῦ δικαίου αὐτοῖς μέλει μᾶλλον ἢ τοῦ αὐτοῖς ξυμφέροντος.