The Art of Rhetoric, Book 1 · Part · Section 44 – Section 56
An example of an Oration Iudiciall, to proue by Contectures the knowledge of a notable and mooste haynous offence, committed by a Souldiour
AS Nature hath euer abhorred murder, and God in all ages most terriblye hath plagued bloudsheading: so I truste your wisedomes (mooste worthye Iudges) will spedelye seke the execution of this mooste hatefull synne. And where as God reuealeth to the syght of menne the knowledge of such offences by diuers likelihodes, and probable coniectures: I doubte not but you beyng called of God to heare suche causes, wyll doe herein as reason shall require, and as this detestable offence shall moue you v…on rehearsall of the matter. The Manne that is well knowen to be slayne, was a worthye Farmar, a good housekeper, a welthye husbandemanne, one that traueyled muche in this worlde, me…nynge vprightlye in all hys doinges, and therfore beloued emonge all men, and lamented of manye when his deathe was knowen. This Souldioure beynge desperate in his doynges, and liuyng by spoyle all his lyfe tyme, came newlie from the warres, whose hand…s hath bene latelye bathed in bloude, and nowe he kepeth this countrey (where this farmar was slaine) and hath ben here for the space of one whole monethmonth together, and by all likelihodes he hath slaine this honest farmer. For, such menflesht vilaynes, make small accompte for kyllinge anye one, and do it they will withoute anye mercye, when they m…ye see their time. Yea, this wretch is bruted for his beastly demeanoure, and knowen of longe time to be a stronge thiefe. Nether had he escaped the daunger of the law, if the kinges free pardon had not preuented the execution. His name declares his noughtye nature, and his wycked liuynge hathe made him famous. For, who is he that hearynge of N. (the notable offenders name myght here be rehearsed) doth not thynke by and by, that he were lyke to do suche a dede? Neither is he onelye knowen vniuersallye to be nought, but his soyle also (where he was borne) geueth him to be an euill man: consideringe he was bredde and brought vp emong a denne of theues, emonge the men of Tindale and Ryddesdale, where pillage is good purchase, and murderynge is counted manhode. Occupation hath he none, nor yet any other honeste meanes, whereby to maintayne him selfe: & yet he liueth mooste sumptuouslye. No greater gamester in a whole countrey, no such riotour, a notable whoremonger, a lewderoister emong Ruffiās, an vnreasonable waister, to day ful of money, wtin a seuēnight after not worth a grote. There is no man that seethe him, but will take him for his apparell to be a gentilman. He hath his chaunge of sutes, yea, he spareth not to go in his silkes and veluet. A greate quareller, and fraie maker, glad when he may be at d…fiaūce with one or other, he hath made such shyftes for money ere now, that I maruaile how he hath liued till this daye. And now beyng at a low ebbe, & lothe to seme base in his estate, thought to aduenture vponupon this farmar, and either to winne the saddle, or els to lose the horse. And thus beynge so farre forwarde, wantinge no will to attempte this wicked deede, he sought by all meanes possible, conuenient oportunitye to compasse his desire. And waytinge vnderunder a woode side, nighe vntounto the hyghe waye, aboute sixe of the clocke at night, he sette vponupon this farmer, at what time he was comming homewarde. For, it appeareth not onelye by his owne confession, that he was there aboute the selfe same time, where this man was slayne: but also there be men that saw him ride in greate haste aboute the selfe same time. And because GOD would hauehave thys murder to be knowen, loke I praye you what bloude he carieth aboute hym, to beare witnesse agaynste hym of hys moost wicked deede. Againe, hys owne confession dothe playnelye goe againste hym, for he is in so manye tales, that he can not tell what to saye.
And often his coloure chaungeth, his bodye shaketh, and hys tongue foultereth wythin hys mouthe. And suche men as he bryngeth in to beare witnesse wyth hym, that he was at suche a place at the selfe same houre, when the Farmar was slayne: they wyll not be sworne for the verye houre, but they saye, he was at suche a place, wythin two houres after. Now Lord, dothe not this matter seeme most playne vntounto al mē, especially seing this dede was done such a time, and in suche a place, that if the deuyl had not bene his good Lorde, thys matter hadde neuer come to lyghte. And who wyll not saye that this Caytife hadde little cause to feare, but rather power inoughe to doe his wycked feacte, seynge he is so sturdye and so stronge, and the other so weake and vnweldy: yea, seyng this vilaine was armed, and the other man naked. Doubte yon not (worthye Iudges) seynge such notes of his former lyfe to declare his inwarde nature, and perceiuing suche coniectures lawfully gathered vponupon iuste suspicion: but that this wretched Souldioure hath slayne thys worthye Farmar. And therfore I appeale for iustice vntounto your wisdomes for the deathe of thys innocente man, whose bloude before God asketh iuste auengement. I doubt not but you remember the wordes of Salomon, who saith. It is as greate a synne to forgeue the wicked, as it is euill to condempne the innocente: and as I call vnfaynedlye for ryghtfull Iudgemente, so I hope assuredlye for iuste execucion.
The Person accused beynge innocente of the cryme that is layed to his charge, may vse the selfe same places for his owne defence, the whyche hys accuse… vsed to proue hym …yltye.
The interpretation of a lawe, otherwise called the State legall.
IN boultynge out the true meaninge of a lawe, we must vse to search out the nature of the same, by de fining sone one worde, or comparing one law wyth an other, iudging vponupon good triall, what is right, and what is wronge.
The partes.
i. Definition.
ii. Contrarye lawes.
iii. Lawes made, & thende of the law maker
iiii. Ambiguitye, or doubtfulnes.
v. Probation by thinges like.
vi. Chalengynge or refusinge.
Definition what it is.
THen we vse to define a matter, when wee can not agree vponupon the nature of some word, the which we learne to know by askyng the question what it is. As for example. Where one is apprehended for killing a man, we laye murder to his charge: wherupon the accused person when he graūteth the killing, and yet denieth it to be murder: we must straight after hauehave recourse to the definition, and aske, what is murder, by defininge whereof, and comparing the nature of the word, with his dede done: we shall sone know whether he committed murder or manslaughter.
Contrarye lawes.
IT often happeneth that lawes seme to hauehave a certaine repugnancie, wherof emōg many riseth much cōtenciō, wher as if both ye lawes wer wel weied & cōsidered according to their circūstances, thei wold appeare nothing contrari in matter, though in wordes they seme to dissent. Christ geueth warning, & chargeth his disciples in the .x. of Math. that they preach not the glad tidinges of his cōming into the world to the Gentils, but to the Iewes only, vntounto whom he was sent by his father. And yet after his resurrection we do read in the last of Mat. that he commaunded his disciples to go into all the whole world, and preach the glad tidinges of his passion, & raunsome, paied for al creatures liuing. Now though these .ii lawes seme contrary, yet it is nothing so. For if the Iewes would hauehave receiued Christ, & acknowleged him their sauioure, vndoutedly they had bene the onelye children of God, vntounto whom the promise and couenaunt was made from the beginninge. But bicause they refused their Sauiour, and crucified the Lord of glory: Christ made the lawe generall, and called all men to life that woulde repent, promisinge saluation to all suche as beleued and were baptised. So that the particuler law, beyng nowe abrogated, muste …ades geue place to the superioure.
Foure lessons to be obserued, where contrarye lawes are called in question.
i. The inferioure law must geue place to the superiour.
ii. The lawe generall muste yelde to the speciall.
iii. Mans lawe, to Gods lawe.
iiii. An olde lawe, to a newe lawe.
There be Lawes vtterde by Christes owne mouthe, the whiche if they be taken accordinge as they are spoken, seme to conteyne great absurditie in them. And therfore the mind of the lawe maker muste rather be obserued, then the bare wordes taken onelyonly, as they are spoken. Christ sayth in the v. of Mathew.Math. v. If thy right eye be an offence vntounto thee, plucke him out, and caste him awaye from thee. If one geue the a blowe of thy ryghte cheke, turne to him agayne thy lefte cheke. There be some Eunuches, that hauehave gelded thēselfes for the kyngdome of heauen.… Go, and sell all that thou hast,… and geue it to the poore. He that doeth not take vp his crosse and folowe me, is not worthy of me. In all whiche sentences there is no suche meanyng, as the bare wordes vttered seme to yelde. Pluckyng out of the iye, declares an auoydyng of all euill occasions: receiuyng a blowe vponupon the lefte cheke, cōmendes vntounto vsus, modestie and pacience in aduersitie. Geldyng, signifieth a subduyng of affeccions, & tamyng the foule luste of pleasure, vntounto the will of reason. Go and sell all: declares we should be liberal, and glad to part with our gooddes to the poore and neady. Bearyng the Crosse, be…o…eth sufferance of all sorowes, and miseries in this worlde. Now to proue that the will of the lawe maker, is none other then I hauehave saied: I maie vse the testimonies of other places in the Scripture, and compare theim with these sentences, and so, iudge by iuste examinacion, and diligent searche, the true meanyng of the lawe maker.
¶Ambiguitee.
SOmetymes a doubt is made, vponupon some woorde or sentēce, when it signifieth diuerse thynges, or maie diuersly be taken, wherupon full oft ariseth muche contencion. The lawyers lacke no cases,Lawyers. to fil this parte full of examples. For, rather then faile, thei will make doubtes oftē tymes, where no doubt should be at all. Is his Lease long enough (ꝙ one): yea sir, it is very long, saied a poore husbande man. Then (ꝙ he) let me alone with it, I wil finde a hole in it, I warrant thee. In all this talke, I excepte alwaies the good lawyers, and I maie well spare theim, for thei are but a fewe.
¶Probacion by thynges like.
WHen there is no certain lawe by expresse wordes vttered for some heinous offender, we maie iudge the offence worthy deathe, by rehersall of some other Lawe, that soundeth muche that waie. As thus. The ciuil lawe appoyncteth yt he shalbe put in a sacke, and cast in the Sea, that killeth his father: well, then he that killeth his mother, should by all reason, in like sort be ordered. It is lawfull to hauehave a Magistrate, therefore it is lawfull to plead matters before an officer. And thus, though the last cānot be proued by expresse wordes, yet thesame is foūd lawfull, by rehersall of the first.
¶Chalengyng, or refusyng.
WE vse this order, when wee remoue our sewtes, from one Courte to another, as if a manne should appele from the Common place, to the Chauncerie. Or if one should bee called by a wrong name, not to answere vntounto it. Or if one should refuse to answere in the spirituall court, and appele to the lorde Chauncellor.
¶The Oracion of right or wrong, called otherwise the state Iuridiciall.
AFter a deede is well knowen to be doen, by some out persone, we go to the next, and searche whether it be right, or wrong. And that is, when the maner of doyng is examined, and the matter tried through reasonyng, and muche debatyng, whether it be wrongfully doen or otherwise.
¶The diuision.
THis state of right or wrong, is twoo waies diuided, wherof the one is, when the matter by the awne nature, is defended to bee righte, without any further sekyng, called of the Rhetoriciās, the state absolute. The other (vsyng litle force, or strengthe to maintein the matter) is, when outward help is sought, and bywaies vsed to pur…hase fauour, called otherwise the state assumptiue.
¶Places of confirmacion for the first kynd, are seuen.
j. Nature if self.
ij. Goddes lawe, and mannes lawe.
iij. Custome.
iiij. Aequitie.
v. True dealyng.
vj. Auncient examples.
vij. Couenauntes and deedes autentique.
TUllie in his moste worthy Oracion, made in behalfe of Milo, declareth that Milo slewe Clodius moste lawfully, whom Clodius sought to hauehave slain moste wickedly. For (ꝙ Tullie) if nature hauehave graffed this in man, if lawe hauehave confirmed it, if necessitie hauehave taught i… if custome hauehave kept it, if aequitie hauehave mainteined it, if true dealyng hath allowed it, if all common weales hauehave vsed it, if deedes auncient hauehave sealed this vp, that eueryevery creature liuyng should fense it self, against outward violence: no mā can thinke that Milo hath dooen wrong, in killyng of Clodius, except you thinke, that when menne mete with theues, either thei must be slain of theim, or els condempned of you.
¶Places of confirmacion for the seconde kynde, are foure.
Grauntyng of the faulte committed.
Blamyng euill companie for it.
Comparyng the fault, and declaryng that either
thei must hauehave doen that, or els … doen worse
Shiftyng it from vsus, and shewyng that wee did
it vponupon commaundement.
COnfessyng of the faulte,Confessyng, what it is. is when the accused person graunteth his crime, and craueth pardon thereupon, leauyng to aske iustice, & leanyng wholy vntounto merciemercy
¶Confession of the faulte, vsed twoo maner of waies.
The first is,The diuision. when one excuseth hymself, that he did it not willyngly, but vnwares, and by chaunce.
The second is, when he asketh pardone, for the fault doen consideryng his seruice to the common weale, and his worthy deedes heretofore dooen, promisyng amendement of his former euill deede: the whiche wordes, would not be vsed before a Indge, but before a kyng, or generall of an armie. For the Iudges muste geue sentence, accordyng to the Lawe: the Kyng maie forgeue, as beyng aucthour of the lawe, and hauyng power in his hande, maie do as he shall thinke best.
Blamyng other for the faulte doen,Blamyng other, how … is saied. is when wee saie that the accused persone, would neuer hauehave doen suche a deede, if other against whō also, this accusacion is intended, had not been euill men, and geuen iust cause, of suche a wicked dede.
Comparyng the fault is when we saie,Comparyng the faulte. that by flaiyng an euill man, we hauehave doen a good dede, cuttyng awaie the corrupte and rotten member, for preseruacion of the whole body. Or thus: some sette a whole toune on fire, because their enemies should hauehave none aduaūtage by it. The Saguntynes beeyng tributarie to the Romaines,S…guntines. slewe their awne children, burnte their goodes, and fired their bodies, because thei would not be subiecte to that cruell Haniball, and lose their allegiaunce, due to the Romaines.
Shiftyng it frō vsus,Shiftyng the fault from vsus is when we saie, that if other had not set vsus on, wee would neuer hauehave attempted suche an enterprise. As often tymes the souldiour saieth, his Capitaines biddyng, was his enforcement: the seruaunt thynketh his Maisters commaundemente, to bee a sufficient defence for his discharge.
The ende of the first Booke.
¶The seconde Booke.
NOw that I hauehave hetherto set furthe what Rhetorique is, whereunto eueryevery Orator is moste bounde, what the causes bee, bothe in their nature, and also by nomber, that comprehende eueryevery matter, & what places serue to confirme eueryevery cause: I thinke it is moste mete after the knowlege of all these, to frame an Oraciō accordingly, & to shewe at large, the partes of eueryevery Oracion, (but specially suche as are vsed in iudgement) that vntounto eueryevery cause, apte partes maie euermore bee added. For eueryevery matter hath a diuerse beginnyng, neither al cōtrouersies, or matters of weight should alwaies after one sort be rehersed nor like reasons vsed, nor one kynd of mouyng affecciōs, occupied before all men, & in eueryevery matter. And therfore, wheras I hauehave briefly spoken of thē before, I wil now largely declare them, and shewe the vse of theim in eueryevery matter, that …ometh in debate, & is nedeful, through reason to be discussed