Aristotle, Rhetoric
J. H. Freese, Ed.

15. Following on what we have just spoken of, we have now briefly to run over what are called the inartificial proofs, for these properly belong to forensic oratory. [2] These proofs are five in number: laws, witnesses, contracts, torture, oaths. [3] Let us first then speak of the laws, and state what use should be made of them when exhorting or dissuading,¹ accusing or defending. [4] For it is evident that, if the written law is counter to our case, we must have recourse to the general law and equity, as more in accordance with justice; [5] and we must argue that, when the dicast takes an oath to decide to the best of his judgement, he means that he will not abide rigorously by the written laws; [6] that equity is ever constant and never changes, even as the general law, which is based on nature, whereas the written laws often vary （this is why Antigone in Sophocles justifies herself for having buried Polynices contrary to the law of Creon, but not contrary to the unwritten law:
“ For this law is not of now or yesterday, but is eternal . . . this I was not likely [to infringe through fear of the pride] of any man）;²

” [7] and further, that justice is real and expedient, but not that which only appears just; nor the written law either, because it does not do the work of the law³; that the judge is like an assayer of silver, whose duty is to distinguish spurious from genuine justice; [8] that it is the part of a better man to make use of and abide by the unwritten rather than the written law.⁴ [9] Again, it is necessary to see whether the law is contradictory to another approved law or to itself; for instance, one law enacts that all contracts should be binding, while another forbids making contracts contrary to the law. [10] If the meaning of the law is equivocal, we must turn it about, and see in which way it is to be interpreted so as to suit the application of justice or expediency, and have recourse to that. [11] If the conditions which led to the enactment of the law are now obsolete, while the law itself remains, one must endeavor to make this clear and to combat the law by this argument. [12] But if the written law favors our case, we must say that the oath of the dicast “to decide to the best of his judgement” does not justify him in deciding contrary to the law, but is only intended to relieve him from the charge of perjury, if he is ignorant of the meaning of the law; that no one chooses that which is good absolutely, but that which is good for himself;
that there is no difference between not using the laws and their not being enacted; that in the other arts there is no advantage in trying to be wiser than the physician, for an error on his part does not do so much harm as the habit of disobeying the authority; that to seek to be wiser than the laws is just what is forbidden in the most approved laws. Thus much for the laws.

[13] Witnesses are of two kinds, ancient and recent; of the latter some share the risk of the trial, others are outside it. By ancient I mean the poets and men of repute whose judgements are known to all; for instance, the Athenians, in the matter of Salamis, appealed to Homer⁵ as a witness, and recently the inhabitants of Tenedos to Periander of Corinth⁶ against the Sigeans. Cleophon also made use of the elegiacs of Solon against Critias, to prove that his family had long been notorious for licentiousness, otherwise Solon would never have written: “ Bid me the fair-haired Critias listen to his father.⁷

” [14] One should appeal to such witnesses for the past,
but also to interpreters of oracles for the future; thus, for instance, Themistocles interpreted the wooden wall to mean that they must fight at sea.⁸ Further, proverbs, as stated,⁹ are evidence; for instance, if one man advises another not to make a friend of an old man, he can appeal to the proverb, “Never do good to an old man.” And if he advises another to kill the children, after having killed the fathers, he can say, “ Foolish is he who, having killed the father, suffers the children to live.¹⁰

”

[15] By recent witnesses I mean all well-known persons who have given a decision on any point, for their decisions are useful to those who are arguing about similar cases. Thus for instance, Eubulus,¹¹ when attacking Chares in the law courts, made use of what Plato said against Archibius, namely, “that the open confession of wickedness had increased in the city.” [16] And those who share the risk of the trial, if they are thought to be perjurers. Such witnesses only serve to establish whether an act has taken place or not, whether it is or is not the case; but if it is a question of the quality of the act, for instance, whether it is just or unjust, expedient or inexpedient, [17] they are not competent witnesses; but witnesses from a distance¹² are very trustworthy even in regard to this. But ancient witnesses are the most trustworthy of all, for they cannot be corrupted. In regard to the confirmation of evidence, when a man has no witnesses, he can say that the decision should be given in accordance with probabilities, and that this is the meaning of the oath “according to the best of one's judgement”; that probabilities cannot
be bribed to deceive, and that they cannot be convicted of bearing false witness. But if a man has witnesses and his adversary has none, he can say that probabilities incur no responsibility, and that there would have been no need of evidence, if an investigation according to the arguments were sufficient. [18] Evidence partly concerns ourselves, partly our adversary, as to the fact itself or moral character; so that it is evident that one never need lack useful evidence. For, if we have no evidence as to the fact itself, neither in confirmation of our own case nor against our opponent, it will always be possible to obtain some evidence as to character that will establish either our own respectability or the worthlessness of our opponent. [19] As for all the other questions relative to a witness, whether he is a friend, an enemy, or neutral, of good or bad or middling reputation, and for all other differences of this kind, we must have recourse to the same topics as those from which we derive our enthymemes.

[20] As for contracts, argument may be used to the extent of magnifying or minimizing their importance, of proving that they do or do not deserve credit.
If we have them on our side, we must try to prove them worthy of credit and authoritative; but if they are on the side of our opponent, we must do the opposite. [21] In view of rendering them worthy or unworthy of credit, the method of procedure is exactly the same as in the case of witnesses; for contracts are trustworthy according to the character of their signatories or depositaries. When the existence of the contract is admitted, if it is in our favor, we must strengthen it by asserting that the contract is a law, special and partial; and it is not the contracts that make the law authoritative, but it is the laws that give force to legal contracts. And in a general sense the law itself is a kind of contract, so that whoever disobeys or subverts a contract, subverts the laws. [22] Further, most ordinary and all voluntary transactions are carried out according to contract; so that if you destroy the authority of contracts, the mutual intercourse of men is destroyed. All other arguments suitable to the occasion are easy to see. [23] But if the contract is against us and in favor of our opponents, in the first place those arguments are suitable which we should oppose to the law if it were against us; that it would be strange if, while we consider ourselves entitled to refuse to obey ill-made laws, whose authors have erred, we should be obliged to consider ourselves always bound by contracts. [24] Or, that the judge
is the dispenser of justice; so that it is not the contents of the contract that he has to consider, but what is juster. [25] Further, that one cannot alter justice either by fraud or compulsion, for it is based upon nature, whereas contracts may be entered into under both conditions. In addition to this, we must examine whether the contract is contrary to any written law of our own or foreign countries, or to any general law, or to other previous or subsequent contracts. For either the latter are valid and the former not, or the former are right and the latter fraudulent; we may put it in whichever way it seems fit. We must also consider the question of expediency—whether the contract is in any way opposed to the interest of the judges. There are a number of other arguments of the same kind, which are equally easy to discern.

[26] Torture is a kind of evidence, which appears trustworthy, because a sort of compulsion is attached to it. Nor is it difficult to see what may be said concerning it, and by what arguments, if it is in our favor, we can exaggerate its importance by asserting that it is the only true kind of evidence;
but if it is against us and in favor of our opponent, we can destroy its value by telling the truth about all kinds of torture generally; for those under compulsion are as likely to give false evidence as true, some being ready to endure everything rather than tell the truth, while others are equally ready to make false charges against others, in the hope of being sooner released from torture. It is also necessary to be able to quote actual examples of the kind with which the judges are acquainted. It may also be said that evidence given under torture is not true; for many thick-witted and thick-skinned persons, and those who are stout-hearted heroically hold out under sufferings, while the cowardly and cautious, before they see the sufferings before them, are bold enough; wherefore evidence from torture may be considered utterly untrustworthy.

[27] As to oaths¹³ four divisions may be made; for either we tender an oath and accept it, or we do neither, or one without the other, and in the last case we either tender but do not accept, or accept but do not tender. Besides this, one may consider whether the oath has already been taken by us or by the other party. [28] If you do not tender the oath to the adversary, it is because men readily perjure themselves, and because, after he has taken the oath, he will refuse to repay the money, while, if he does not take the oath, you think that the dicasts will condemn him; and also because the risk incurred in leaving the decision to the dicasts is preferable, for you have confidence in them, but not in your adversary.¹⁴ [29] If you refuse to take the oath yourself, you may argue that the oath is only taken with a view to money; that, if you had been a scoundrel, you would have taken it at once, for it is better to be a scoundrel for something than for nothing; that, if you take it, you will win your case, if not, you will probably lose it; consequently, your refusal to take it is due to moral excellence, not to fear of committing perjury. And the apophthegm of Xenophanes¹⁵ is apposite— that “it is unfair
for an impious man to challenge a pious one,” for it is the same as a strong man challenging a weak one to hit or be hit. [30] If you accept the oath, you may say that you have confidence in yourself, but not in your opponent, and, reversing the apophthegm of Xenophanes, that the only fair way is that the impious man should tender the oath and the pious man take it; and that it would be monstrous to refuse to take the oath yourself, while demanding that the judges should take it before giving their verdict. [31] But if you tender the oath, you may say that it is an act of piety to be willing to leave the matter to the gods; that your opponent has no need to look for other judges, for you allow him to make the decision himself; [32] and that it would be ridiculous that he should be unwilling to take an oath in cases where he demands that the dicasts should take one.

Now, since we have shown how we must deal with each case individually, it is clear how we must deal with them when taken two and two; for instance, if we wish to take the oath but not to tender it, to tender it but not to take it, to accept and tender it, or to do neither the one nor the other.
For such cases, and similarly the arguments, must be a combination of those already mentioned. And if we have already taken an oath which contradicts the present one, we may argue that it is not perjury; for whereas wrongdoing is voluntary, and perjury is wrongdoing, what is done in error or under compulsion is involuntary. [33] Here we must draw the conclusion that perjury consists in the intention, not in what is said.¹⁶ But if the opponent has taken such an oath, we may say that one who does not abide by what be has sworn subverts everything, for this is the reason why the dicasts take an oath before applying the laws; and [we may make this appeal]: “They demand that you abide by your oath as judges, while they themselves do not abide by theirs.” Further, we should employ all means of amplification. Let this suffice for the inartificial proofs.