Of Arguments suited to judicial Discourses.

IN judicial controversies there are two parties, the plaintiff or prosecutor, and the defendant or person charged. The subject of them is always something past. And the end proposed by them Cicero calls equity, or right and equity; the former of which arises from the laws of the country, and the latter from reason and the nature of things. For at Rome the prætors had a court of equity, and were empowered, in many cases relating to property, to relax the rigor of the written laws. But as this subject is very copious, and causes may arise from a great variety of things, writers have reduced them to three heads, which they call states, to some one of which all judicial proceedings may be referred; namely, whether a thing is, what it is, or how it is. By the state of a cause therefore is meant the principal question in dispute, upon which the whole affair depends; which, if it stops in the first inquiry, and the defendant denies the fact, the state is called conjectural; but if the fact be acknowledged, and yet denied to be what the adversary calls it, it is termed definitive; but if there is no dispute either about the fact or its name, but only the justice of it, it is called the state of quality: as was shown more largely before. But I then considered these states only in a general view, and deferred the particular heads of argument proper for each of them to this judicial kind of discourses; where they most fre quently occur, and from which examples may easily be accommodated to other subjects. And this is what I am now particularly to treat of.

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All judicial causes are either private or public. They are called private, which relate to the right of particular persons; and they are likewise called civil causes, as they are conversant about matters of property. Public causes are those which relate to public justice and the government of the state; which are also called criminal, because by them crimes are prosecuted, whether capital or those of a less heinous nature. I shall take the heads of the arguments only from this latter kind, because they are more copious and easy to be illustrated by examples; from which such as agree to the former, namely, civil causes, will sufficiently appear.

And I shall begin with the conjectural state, which comes first in the order of inquiry. When therefore the accused person denies the fact, there are three things which the prosecutor has to consider: Whether he would have done it, whether he could, and whether he did it. And hence arise three topics; from the Will, the Porver, and the Signs or circumstances which attended the action. The affections of the mind discover the Will; as, passion, an old grudge, a desire of revenge, a resentment of an injury, and the like. Therefore Cicero argues from Clodius's hatred of Milo, that he designed his death, and from thence infers that he was the aggressorin the combat between them, wherein Clodius was killed. This is what he principally endeavours to prove, and comes properly under this state: for Milo owned that he killed him, but alleged that he did it in his own defence. So that in regard to this point, which of them assaulted the other, the charge was mutual. The prospect of advantage may also be alleged to the same purpose. Hence it is said of L. Cassius, that whenever he sat as judge in a case of murder, he used to advise and move the court to examine to whom the advantage arose from the death of the deceased. And Cicero puts this to Anthony concerning the death of Cæsar. If any one, says he, should bring you upon trial, and use that saying of Cassius, cui bono? who got by it? look to it, I beseech you, that you are not confounded. To these arguments may be added, hope of impunity, taken either from the circumstances of the accused person, or of him who suffered the injury. For persons who have the advantage of interest, friends, power, or money, are apt to think they may easily escape; as likewise such who have formerly committed other crimes with impunity. Thus Cicero represents Clodius as hardened in vice, and above all the restraint of laws, from having so often escaped punishment upon committing the highest crimes. On the contrary, such a confidence is sometimes raised from the condition of the injured party, if he is indigent, obscure, timorous, or destitute of friends; much more if he has an ill reputation, or is loaded with popular hatred and resentment. It was this presumption of the obscurity of Roscius, who lived in the country, and of his want of interest at Rome, which encouraged his accusers to charge him with killing his father, as Cicero shows in his defence of him. Lastly, the temper of a person, his views, and manner of life, are considerations of great moment in this matter. For persons of bad morals, and such who are addicted to vice, are easi- " ly thought capable of committing any wickedness. Hence Sallust argues from the evil dispo

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sition and vitious life of Catiline, that he affected to raise himself upon the ruins of his country. The second head is the power of doing a thing; and there are three things which relate to this, the place, the time, and opportunity. As, if a crime is said to have been committed in a private place where no other person was present; or in the night; or when the injured person was unable to provide for his defence. Under this head may likewise be brought in the circumstances of the persons; as if the accused person was stronger, and so able to overpower the other; or more active, and so could easily make his escape. Cicero makes great use of this topic in the case of Milo, and shows that Clodius had all the advantages of place, time, and opportunity, to execute his design of killing him. The third head are the signs and circumstances which either preceded, accompanied, or followed the commission of the fact. So threats, or the accused person being seen at or near the place before the fact was committed, are circumstances that may probably precede murder; fighting, crying out, bloodshed, are such as accompany it; paleness, trembling, inconsistent answers, hesitation or faltering of speech, something found upon the person accused which belonged to the deceased, are such as follow. Thus Cicero proves that Clodius had threatened the death of Milo, and given out that he should not live above three days at the furthest. These arguments, taken from conjectures, are called presumptions, which, though they do not directly prove that the accused person committed the fact with which he is charged, yet when being laid together they appeared very strong, sentence by the Roman law might sometimes be given upon them to convict him.

These are the topics from which the prosecutor takes his arguments. Now the business of the defendant is to invalidate these. Therefore such as are brought from the will, he either endeavours to show are not true, or so weak as to merit very little regard. And he refutes those taken from the power, by proving that he wanted either opportunity or ability: as, if he can show that neither the place nor time insisted on was at all proper, or that he was then in another place. In like manner he will endeavour to confute the circumstances, if they cannot directly be denied, by showing that they are not such as do necessarily accompany the fact, but might have proceeded from other causes, though nothing of what is alleged had been committed; and it will be of great service to assign some other probable cause. But sometimes the defendant does not only deny that he did the fact, but charges it upon another. Thus Cicero, in his oration for Roscius, not only defends him from each of these three heads, but likewise charges the fact upon his accusers.

I come now to the definitive state, which is principally concerned in defining and fixing the name proper to the fact. Though orators seldom make use of exact definitions, but commonly choose larger descriptions, taken from various properties of the subject or thing described.

The heads of argument in this state are much the same to both parties. For each of them defines the fact his own way, and endeavours to refute the other's definition. We may illustrate