XIV. address of the ac aggravation of the orator is also of mighty CHAP. effect; as when he arraigns complicated turpitude, and shows the crime committed to sap the From the foundations of justice, good faith, oaths, marriages, and all those principles and institutions, cuser. by which the edifice of society has been reared, and through which only it can be upheld. Crimes are aggravated by their commission in the very place appointed for their punishment: in this consists the enormity of false witnesses; for where will men respect truth and justice, if not in the places destined to elicit the one, and to administer the other? Crimes may be measured by the degree of shame accompanying. them those are the basest of which the bulk of mankind would be most ashamed. He who injures a benefactor is doubly guilty; because he has done ill, where it was his duty to do good. A man may be represented as more unworthy and odious for having violated the unwritten, than the written law; because it is more honourable to obey the former, which, as we have seen, is not armed with the same coercive authority: under another aspect, the violation of written laws may be regarded as the greater crime of the two; for he who has not been deterred from injustice through fear of punishment, can scarcely, in the absence of such fear, be expected to maintain his integrity. Thus much on the comparison of crimes, and the estimation of their relative magnitudes. art. XV. 1. Laws, particular and universal; how their CHAP. Ir follows to speak of proofs; I mean those independent of the art and skill of the orator, Of proofs for these are peculiar to judicial pleadings. independent of the They may be all referred to five heads; laws, rhetorical witnesses, contracts, examination by torture, and oaths. Let us begin with the first, and see how, according to circumstances, laws may be employed with a view to persuade or dissuade, to accuse or to defend. If the written law be respective unfavourable to our cause, it is plain that recourse must be had to general principles, and to the rules of natural equity. That a judge should use his discretion, is a maxim, we may observe, established for the purpose of setting aside written law, in cases where the application of it would be a grievance. This may be the effect of written laws, which are variable, depending on the will or caprice of particular legislators; but can never take place with regard to those universal and natural laws, which Antigoné pleads in justifying her disobedience to Creon's edict. authorities are to be enforced or invalidated. Nor could I ever think A mortal's law of power or strength sufficient Shall man persuade me, then, to violate Heaven's great commands, and make the Gods my foes? 76 Justice, it may be further said, must rest on the solid basis of reality: it is not mere show and appearance; so that what is not useful and 76 Antigone, act ii. scene 4. as the XV. just deserves not to be regarded as a law; since CHAP. it performs not the functions of law office of assayer is established to separate true gold from the false, so judges are appointed to detect counterfeit laws, and to maintain against their authority the rules of substantial justice : by these a good man will be guided, and to these he will invariably adhere. It must also be examined, whether the written laws be not at variance among themselves. Some of these declare all contracts to be binding; others prohibit all contracts of an odious or immoral nature." We must also consider whether the law be ambiguous, and explain it in that sense which suits the purpose of our client. Further, if the law be against us, we must inquire whether the circumstances still subsist which occasioned its enactment; for laws often remain after the causes of them have long ceased, in which case it is not difficult to combat their authority. When, on the contrary, the written law operates in our favour, we must then allege that the permission granted to the judge of using his discretion, by no means implies that he may set aside the laws of his country, when they speak plainly and decisively, but only that he may use his best judgment in the interpretation of them, when they are obscure or ambiguous; by which means he will maintain the sanctity of his oath of office, and decide according to law. In legislating for particular communities, the consideration is not what may appear just and right generally and Τι Παρα τον νομον. R 1. BOOK abstractedly, but what is just and right for a certain people, particularly circumstanced. To set aside the laws of such a people, on views of abstract fitness, is entirely to deprive them of the benefits of law and government, and virtually to dissolve society. In the other arts and sciences, for instance, in the art of medicine, the pretensions of being more skilful than your physician will generally be convicted of folly those are not less extravagant of being more wise than the legislator, whose very errors are to be respected, since laws operate as practical principles of morality, and occasional inconveniences in them are nothing, compared with the dreadful evils that would result from teaching men to disregard and disobey them. The tendency to this disposition is what all political experience, and the collected wisdom of ages, most pointedly 2. Witnes- condemn.79 Witnesses, constituting the second ses ancient class of inartificial proofs, are either ancient or and con tempo. rary. The former consist of poets, modern, that is, contemporary; and the latter may be again divided into those exempt from danger, and those who run the same risk with the parties in whose cause they give evidence. Ancient witnesses consist of the poets and other celebrated writers, whose authority for certain historians, facts or opinions are embodied in their immortal and philosophers. works. Thus the Athenians produced the testimony of Homer for their right of dominion over the isle of Salamis, in opposition to the pretensions of the commonwealth of Megara: and, in a recent transaction, the citizens of Tenedos pleaded the authority of Periander, the wise 78 See "Politics," Translation, p. 117. 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, — 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." 0 Sec Hist. of Ancient Greece, P. i. vol. iii. p. 479, &c. |