There are also the so-called "non-technical" means of persuasion; and we must now take a cursory view of these, since they are specially characteristic of forensic oratory. They are five in number: laws, witnesses, contracts, tortures, oaths.
First, then, let us take laws and see how they are to be used in persuasion and dissuasion, in accusation and defence. If the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice. We must argue that the juror's oath "I will give my verdict according to honest opinion" means that one will not simply follow the letter of the written law. We must urge that the principles of equity are permanent and changeless, and that the universal law does not change either, for it is the law of nature, whereas written laws often do change. This is the bearing the lines in Sophocles' Antigone, where Antigone pleads that in burying her brother she had broken Creon's law, but not the unwritten law:
We shall argue that justice indeed is true and profitable, but that sham justice is not, and that consequently the written law is not, because it does not fulfil the true purpose of law. Or that justice is like silver, and must be assayed by the judges, if the genuine is to be distinguished from the counterfeit. Or that the better a man is, the more he will follow and abide by the unwritten law in preference to the written. Or perhaps that the law in question contradicts some other highly-esteemed law, or even contradicts itself. Thus it may be that one law will enact that all contracts must be held binding, while another forbids us ever to make illegal contracts. Or if a law is ambiguous, we shall turn it about and consider which construction best fits the interests of justice or utility, and then follow that way of looking at it. Or if, though the law still exists, the situation to meet which it was passed exists no longer, we must do our best to prove this and to combat the law thereby. If however the written law supports our case, we must urge that the oath "to give my verdict according to my honest opinion" not meant to make the judges give a verdict that is contrary to the law, but to save them from the guilt of perjury if they misunderstand what the law really means. Or that no one chooses what is absolutely good, but every one what is good for himself. Or that not to use the laws is as ahas to have no laws at all. Or that, as in the other arts, it does not pay to try to be cleverer than the doctor: for less harm comes from the doctor's mistakes than from the growing habit of disobeying authority. Or that trying to be cleverer than the laws is just what is forbidden by those codes of law that are accounted best. -- So far as the laws are concerned, the above discussion is probably sufficient.
As to witnesses, they are of two kinds, the ancient and the recent; and these latter, again, either do or do not share in the risks of the trial. By "ancient" witnesses I mean the poets and all other notable persons whose judgements are known to all. Thus the Athenians appealed to Homer as a witness about Salamis; and the men of Tenedos not long ago appealed to Periander of Corinth in their dispute with the people of Sigeum; and Cleophon supported his accusation of Critias by quoting the elegiac verse of Solon, maintaining that discipline had long been slack in the family of Critias, or Solon would never have written,
These witnesses are concerned with past events. [1376a] As to future events we shall also appeal to soothsayers: thus Themistocles quoted the oracle about "the wooden wall" as a reason for engaging the enemy's fleet. Further, proverbs are, as has been said, one form of evidence. Thus if you are urging somebody not to make a friend of an old man, you will appeal to the proverb,
Or if you are urging that he who has made away with fathers should also make away with their sons, quote,
"Recent" witnesses are well-known people who have expressed their opinions about some disputed matter: such opinions will be useful support for subsequent disputants on the same oints: thus Eubulus used in the law-courts against the reply Plato had made to Archibius, "It has become the regular custom in this country to admit that one is a scoundrel." There are also those witnesses who share the risk of punishment if their evidence is pronounced false. These are valid witnesses to the fact that an action was or was not done, that something is or is not the case; they are not valid witnesses to the quality of an action, to its being just or unjust, useful or harmful. On such questions of quality the opinion of detached persons is highly trustworthy. Most trustworthy of all are the "ancient" witnesses, since they cannot be corrupted.
In dealing with the evidence of witnesses, the following are useful arguments. If you have no witnesses on your side, you will argue that the judges must decide from what is probable; that this is meant by "giving a verdict in accordance with one's honest opinion"; that probabilities cannot be bribed to mislead the court; and that probabilities are never convicted of perjury. If you have witnesses, and the other man has not, you will argue that probabilities cannot be put on their trial, and that we could do without the evidence of witnesses altogether if we need do no more than balance the pleas advanced on either side.
The evidence of witnesses may refer either to ourselves or to our opponent; and either to questions of fact or to questions of personal character: so, clearly, we need never be at a loss for useful evidence. For if we have no evidence of fact supporting our own case or telling against that of our opponent, at least we can always find evidence to prove our own worth or our opponent's worthlessness. Other arguments about a witness -- that he is a friend or an enemy or neutral, or has a good, bad, or indifferent reputation, and any other such distinctions -- we must construct upon the same general lines as we use for the regular rhetorical proofs.
Concerning contracts argument can be so far employed as to increase or diminish their importance and their credibility; [1376b] we shall try to increase both if they tell in our favour, and to diminish both if they tell in favour of our opponent. Now for confirming or upsetting the credibility of contracts the procedure is just the same as for dealing with witnesses, for the credit to be attached to contracts depends upon the character of those who have signed them or have the custody of them. The contract being once admitted genuine, we must insist on its importance, if it supports our case. We may argue that a contract is a law, though of a special and limited kind; and that, while contracts do not of course make the law binding, the law does make any lawful contract binding, and that the law itself as a whole is a of contract, so that any one who disregards or repudiates any contract is repudiating the law itself. Further, most business relations -- those, namely, that are voluntary -- are regulated by contracts, and if these lose their binding force, human intercourse ceases to exist. We need not go very deep to discover the other appropriate arguments of this kind. If, however, the contract tells against us and for our opponents, in the first place those arguments are suitable which we can use to fight a law that tells against us. We do not regard ourselves as bound to observe a bad law which it was a mistake ever to pass: and it is ridiculous to suppose that we are bound to observe a bad and mistaken contract. Again, we may argue that the duty of the judge as umpire is to decide what is just, and therefore he must ask where justice lies, and not what this or that document means. And that it is impossible to pervert justice by fraud or by force, since it is founded on nature, but a party to a contract may be the victim of either fraud or force. Moreover, we must see if the contract contravenes either universal law or any written law of our own or another country; and also if it contradicts any other previous or subsequent contract; arguing that the subsequent is the binding contract, or else that the previous one was right and the subsequent one fraudulent -- whichever way suits us. Further, we must consider the question of utility, noting whether the contract is against the interest of the judges or not; and so on -- these arguments are as obvious as the others.
Examination by torture is one form of evidence, to which great weight is often attached because it is in a sense compulsory. Here again it is not hard to point out the available grounds for magnifying its value, if it happens to tell in our favour, and arguing that it is the only form of evidence that is infallible; [1377a] or, on the other hand, for refuting it if it tells against us and for our opponent, when we may say what is true of torture of every kind alike, that people under its compulsion tell lies quite as often as they tell the truth, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner. We ought to be able to quote cases, familiar to the judges, in which this sort of thing has actually happened. [We must say that evidence under torture is not trustworthy, the fact being that many men whether thick-witted, tough-skinned, or stout of heart endure their ordeal nobly, while cowards and timid men are full of boldness till they see the ordeal of these others: so that no trust can be placed in evidence under torture.]
In regard to oaths, a fourfold division can be made. A man may either both offer and accept an oath, or neither, or one without the other -- that is, he may offer an oath but not accept one, or accept an oath but not offer one. There is also the situation that arises when an oath has already been sworn either by himself or by his opponent.
If you refuse to offer an oath, you may argue that men do not hesitate to perjure themselves; and that if your opponent does swear, you lose your money, whereas, if he does not, you think the judges will decide against him; and that the risk of an unfavourable verdict is prefer, able, since you trust the judges and do not trust him.
If you refuse to accept an oath, you may argue that an oath is always paid for; that you would of course have taken it if you had been a rascal, since if you are a rascal you had better make something by it, and you would in that case have to swear in order to succeed. Thus your refusal, you argue, must be due to high principle, not to fear of perjury: and you may aptly quote the saying of Xenophanes,
It is as if a strong man were to challenge a weakling to strike, or be struck by, him.
If you agree to accept an oath, you may argue that you trust yourself but not your opponent; and that (to invert the remark of Xenophanes) the fair thing is for the impious man to offer the oath and for the pious man to accept it; and that it would be monstrous if you yourself were unwilling to accept an oath in a case where you demand that the judges should do so before giving their verdict. If you wish to offer an oath, you may argue that piety disposes you to commit the issue to the gods; and that your opponent ought not to want other judges than himself, since you leave the decision with him; and that it is outrageous for your opponents to refuse to swear about this question, when they insist that others should do so.
Now that we see how we are to argue in each case separately, we see also how we are to argue when they occur in pairs, namely, when you are willing to accept the oath but not to offer it; to offer it but not to accept it; both to accept and to offer it; or to do neither. [1377b] These are of course combinations of the cases already mentioned, and so your arguments also must be combinations of the arguments already mentioned.
If you have already sworn an oath that contradicts your present one, you must argue that it is not perjury, since perjury is a crime, and a crime must be a voluntary action, whereas actions due to the force or fraud of others are involuntary. You must further reason from this that perjury depends on the intention and not on the spoken words. But if it is your opponent who has already sworn an oath that contradicts his present one, you must say that if he does not abide by his oaths he is the enemy of society, and that this is the reason why men take an oath before administering the laws. "My opponents insist that you, the judges, must abide by the oath you have sworn, and yet they are not abiding by their own oaths." And there are other arguments which may be used to magnify the importance of the oath. -- [So much, then, for the "non-technical" modes of persuasion.]