The Art of Rhetoric, Book 1 · Part · Section 38 – Section 43
¶Of the foundacion, or rather principall paincte in eueryevery debated matter, called of the Rhe…oricians the State, or constitucion of the Cause.
NOT onelyonly is it nedefull in causes of iudgement to considre the scope whereunto wee must leauell our reasons, & directe our inuencion: but also we ought in eueryevery cause to hauehave a respect vntounto some one especial poincte, and chief article: that the rather the whole drift of our doynges may seeme to agree with our firste deuised purpose. For, by this meanes our iudgement shalbe framed to speake with discretion, and the ignoraunt shall learne to perceiue with profite, whatsoeuer is said for his enstructiō. But they that take vponupon theim to talke in open audience, & make not their accompte before, what thei wil speake after: shal neither be well liked for their inuenciō, nor allowed for their witte, nor estemed for their learnyng. For, what other thyng do they, that boult out their wordes in suche sorte, & without al aduisement vtter out matter: but showe themselues to plaie as young boyes, or scarre crowes do, whiche showte in the open and plaine feldes at all auentures hittie missie.Definition of a thyng must first be knowē ere we speake o… mynd at large. The learned therfore and suche as louelove to beco…mpted Clerkes of vnderstandyng, and men of good circumspection and iudgement: doe warely scanne what they chefely mynd to speake, and by definition seke what that is whereunto they purpose to directe their whole doynges. For, by suche aduised warenesse, and good iye castyng: they shall alwaies be able both to knowe what to say, & to speake what they ought. As for example if I shal hauehave occasion to speake in open audience of the obediēce due to our souereigne kyng I ought first to learne what is obedience, and after knowelege attained, to direct my reasons to the onelyonly proue of this purpose, and wholly to seke confirmacion of the same, & not turne my tale to talke of Robbyn Hoode, & to showe what a goodly archer was he, or to speake wounders of the man in the Mone,Rouyng with … reason. suche as are most nedelesse & farthest from the purpose. For then, the hearer lookyng to be taught his obedience, & hearing in the meane season mad tales of archerie, and great meruailes of the man in the Mone: beyng half astonied at his so great straing wil perha…pes say to himself: Now, whether the deuill wilt thou, come in man againe for very shame, & tel me no bytailes, suche as are to no purpose but show me that whiche thou diddest promise both to t…ache & perswade at thy first entrie. Assuredly suche fonde felowes there hauehave been, yea euē emong Preachers, that talking of faith, thei hauehave fetcht their ful race from the .xij. signes in the Zodiake. An other talking of the general resurrection hath made a large matter of our blessed Lady, praisyng her to be so ientle, so courtise, & so kynd, that it were better a thousandfould to make sute to her alone thē to Christ her sonne. And what needed (I pray you) any suche rehersal beyng both vngodly, & nothyng at al to the purpose? for, what maketh the praise of our lady to the confirmaciō of the general dowme? Would not a man thinke him mad that hauyng an earnest errand from London to Douer, would take it the next way to ride first into Northfolke, next into Essex, & last into Kent? And yet assuredly many an vnlearned & wittelesse mā hath straied in his talke much farther a great deale, yea truely as farre, as hence to Rome gates. Therfore wise are thei that folow Plinies aduise,Plinies counsel for handeling of caus…. who would that al men both in writing & speakyng at large vponupon any matter, should euer hauehave an iye to the chief title & principal ground of their whole entent, neuer swaruing frō their purpose, but rather bringyng al thinges together to cōfirme their cause so much as they can possible. Yea, the wise & experte men wil aske of thēselfes, how hangeth this to the purpose? to what end do I speake it? what maketh this for cōfirmacion of my cause? & so by oft questionyng either chide their owne fol…e, if they speake amisse▪ or els be assured thei speake to good purpose.
A State therfore generally is the chief grounde of a matter,A State generally what it is. and the pryncipal poincte whereunto both he that speaketh shoulde referre his whole wit, & thei that heare should chefely marke. A Preacher taketh in hande to showe what praier is, and how nedeful for man, to cal vponupon God: Now, he shoulde euer remembre this his matter, applieng his reasons wholy and fully to this end that the hearers may both knowe the nature of praier, and the nedefulnesse of praier. The whiche when he hath doen, his promise is fulfilled, his time wel bestowed, and the hearers wel iustructed.
¶A State, or constitution what it is in matters of Iudgement.
IN al other causes the state is gathered without cō tention, and seuerally handled vponupon good aduisement as he shal thynke best that professeth to speake. But in matters criminall, where iudgement is required: there are two persons at the least, whiche must through contrarietie, stande and reste vponupon some issue. As for example: A seruyng man is apprehended by a lawyer for felonie vponupon suspicion. The lawier saith to the seruyng man: Thou hast done this robbery. Nay, (saith he) I hauehave not doen it. Upon this conflicte & matchyng together, ariseth this State, whether this seruing man hath done this robbery, or no? Upon whiche poincte the lawyer must stande, and seeke to proue it to the vttermost of his power.
A State therfore in matters of iudgement is that thyng,State in Iudgement what it is. whiche doeth arise vponupon the first demaunde and denial made betwixt men, whereof the one part is the accuser, and the other part the person, or persons accused. It is called a State because we doe stande and reste vponupon some one poincte,State, why it is so called. the whiche must wholly and onelyonly be proued of the one side, and denied of the other. I cannot better terme it in Englishe than by the name of an issue, the whiche not onelyonly ariseth vponupon muche debatyng and long trauerse vsed, whereupon all matters ar said to com to an issue: but also elswhere an issue is said to be then and so often as bothe parties stande vponupon one poinct, the whiche doth aswel happen at the first begynnyng before any probacions are vsed, as it doth at the latter endyng after the matter hath at large been discussed.
¶The diuision of States, or issues.
NOW that we knowe what an Issue is, it is nexte most nedeful to showe how many thei are in numbre. The wisest and best learned hauehave agreed vponupon thre onelyonly, and no lesse, the whiche are these folowyng.
The state.
i. Coniecturall.
ij. Legall.
iij. Iuridiciall.
AND for the more playne vnderstandynge of these darcke wordes, these three questions folowinge, expounde their meaninge altogether.
i. Whether the thinge bee, or no.
ij. What it is.
iij. What maner of thinge it is.
IN the fyrst we consider vponupon rehearsal of a matter whether anye suche thinge bee, or no. As if one shoulde be accused of Murther, good it were to knowe, whether anye murther were committed at all, or on, if it be not perfectlye knowne before: and after to go further, and examine whether suche a man that is accused, hauehave done the dede or no.
In the seconde place, we doubte not vponupon the thinge done, but we stande in doubte what to call it. Sometimes a man is accused of felo…ye, and yet he proueth his offence to be but a trespace, wherupon he escapeth the daunger of deathe. An other beynge accused for killynge a man, confesseth his faulte to be manslaughter, and denieth it vtterlye to be any murder, wherupō he maketh frendes to purchase his Pardon. Nowe the lawyers by their learninge muste iudge the doubte of this debate, and tell what name he deserueth to hauehave that hath thus offended.
In the thyrde place, not onelyonly the dede is confessed, but the maner of doynge is defended. As if one were accused for killynge a man, to confesse the deede, and also to stande in it that he myght iustely so do, because he did it in his owne defence: wherupon ariseth this Question, whether his doing be ryght or wrong. And to make these matters more plaine, I will adde an example for eueryevery state, seuerally.
Of the state Coniecturall.
The Assertion.
Thou hast killed this manne.
The Aunswere.
I hauehave not killed him.
The State or Issue.
Whether he hath killed this man or no. Thus we see vponupon the auouchinge and deniall, the matter standeth vponupon an issue.
Of the state Legall.
Assertion.
Thou hast committed treason in this facte.
Aunswere.
I denye it to be treason.
State or issue.
Whether his offence done maye be called treason or no. Here is denied that any suche thinge is in the dede done, as is by word reported, and saide to bee.
Of the state Iuridiciall.
Assertion.
Thou hast kylled this manne.
Aunswere.
I graunte it, but I hauehave doone it lawfullye, because I killed him in mine owne defence.
State or issue.
Whether a man may kill one in his owne defence, or no, and whether this man did so, or no.
The Oration coniectural, what it is.
THe Oration coniectural is, when matters be examined and tryed out by suspicions gathered, and some likelihode of thinge appearinge. A Souldiour is accused for killinge a Farmar. The Souldioure denieth it vtterly, & sayth he did not kyll him. Hereupon riseth the question, whether the Souldioure killed the Farmar or no, who is well knowen to be slayne. Nowe to proue this question, we muste hauehave suche places of confirmation, as hereafter do folowe.
☞ Places of confirmation, to proue thinges by coniecture.
i. Will, to do euill.
ij. Power, to do euil.
IN the will muste be considered the qualitye of the man, whether he were like to do suche a dede or no, and what shoulde moue him to attempte suche an enterpryse, whether he did the murther vponupon anye displeasure before conceyued, or of a sodayne anger, or els for that he loked by his death to receyue some commoditie, either lande, or office, money, or money …, or anye other gainefull thinge.
Some are knowen to want no will to kill a manne, because they hauehave bene fleshe theretofore, passing as little vpō the deathe of a man, as a Bo…her dothe passe for killinge of an Ore, beynge heretofore either accused before a Iudge of manslaughter, or els quitte by some general pardon. Now, when the names of such menne are knowen, they make wise men euer after to hauehave them in suspection.
The countrey where the man was borne declares sometime his natural inclination, as if he wer borne or brought vp emong the Tindale, and Riddesdale menne, he may the soner be suspected.
Of what trade he is, by what occupation he liueth.
Whether he be a gamester, an alchouse haunter, or a panion emong Ruffians.
Of what wealthe he is, and how he came by that whiche he hath, if he hauehave anye.
What apparell he weareth, and whether he loueth to go gaye, or no.
Of what nature he is, whether he be hastye, headye, or readye to pike quarels.
What shiftes he hath made from time to tyme.
What moued him to do suche an haynous dede.
Places of Confirmation to proue whether he had power to do suche a dede, or no.
The grounde where the man was flaine, whether it was in the hygh waye, in a woode, or betwixt two hylles, or els where, nighe to an hedge or secrete place.
The tyme, whether it was earlye in the mornynge, or late at nyght.
Whether he was there about that time or no.
Whether he ranne awaye after the deede done, or had anye bloude aboute him, or trembled, or stakerde, or was contrarie in tellyng of his tale, and how he kept his countenaunce.
Hope to kepe his dede secrete, bi reason of the place, time, and secrete maner of doynge.
Witnesses examined of his beynge, either in this or that place.
By comparinge of the stxengthe of the murtherer wyth the other mans weakenes, armoure with nakednes, & stoutnes with simplicitie.
His Confession.