views: praise, glory, and virtue, influence the one; while the other is only to be engaged by a prospect of gain and pleasure. Besides, it is plain, that the generality of mankind are much more inclined to avoid evils than to pursue what is good, and to keep clear of scandal and disgrace than to practise what is truly generous and noble. Persons likewise of a different age act from different principles; young men for the most part view things in another light from those who are older and have had more experience, and consequently are not to be influenced from the same motives. Every nation also has its particular customs, manners, and polity, which give a different turn to the genius of the inhabitants. The speech of Alexander, made to his soldiers before he engaged the Persians, as we have it in Curtius, is finely wrought up in this respect. For, as his army was composed of different nations, the parts of his discourse are admirably well suited to their several views in prosecuting the war. He reminds his countrymen, the Macedonians, of their former victories in Europe; and tells them, that Persia is not to be the boundary of their conquests, but they are to extend them further than either Hercules or Bacchus had done: that Bactra and the Indies would be theirs, and that what they saw was but a small part of what they were to possess: that neither the rocks of Illyrium, nor the mountains of Thrace, but the spoils of the whole East were now before them that the conquest would be so easy they would scarce have occasion to draw their swords, but they might push the enemy with their bucklers. Then he reminds them of their subduing the Athenians under his father Philip, and the late conquest of Boötia, the victory at the river Granicus, and the many

cities and countries now behind them and under their subjection. When he addresses the Greeks, he tells them, they are now going to engage with those that had been the enemies of their country, first by the insolence of Darius, and afterwards of Xerxes, who would have deprived them even of the necessaries of life, who destroyed their temples, demolished their towns, and violated both their sacred and civil rights. And then directing his discourse to the Illyrians and Thracians, who were accustomed to live by plunder, he encouraged them with the prospect of booty from the rich armour and furniture of the Persians, which they might be masters of with the greatest ease; and tells them, they would now exchange their barren mountains and snowy hills for the fertile country and fields of Persia.

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 rigour 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 be→ fore. 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 frequent, ly occur, and from which examples may easily be accommodated to other subjects. And this is what I am now particularly to treat of.

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

Power, 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 thence infers that he was the aggressor in 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 Antony 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 easily thought capable of committing any wickedness. Hence Sallust argues from the evil disposition and vicious 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 an.