The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Key to Abbreviations and References
• Introduction
• 1.: The Manuscript
• 2.: The Lectures
• 3.: Considerations Concerning the First Formation of Languages
• 4.: Rhetoric and Literary Criticism
• 5.: System and Aesthetics
• Bibliographical Note
• Lectures On Rhetoric and Belles Lettres: Lecture 2D.
• Lecture 3D.: Of the Origin and Progress of Language 1
• Lecture 4tha
• Lecture 5. A
• Lecture 6.THA: Of What Is Called the Tropes and Figures of Speech. B
• Lecture. 7. A
• Lecture. 8. A
• Lecture. 9tha
• Lecture. 10tha
• Lecture. 11 a
• Lecture. 12.THA: Of Composition
• Lecture. 13 a
• | Lecture. 14 a
• Lecture 15tha
• Lecture. 16th. a
• Lecture XVII. A
• Lecture Xviii a
• Lecture. Xixth. a
• Lecture. XX.THA
• Lecture Xxist. a
• Lecture Xxiida
• Lecture Xxiiida
• Lecture Xxivtha
• Lecture XXV. A
• Lecture Xxvitha
• Lecture Xxvii a
• Lecture Xxviiitha
• Lecture Xxix a
• Lecture. Xxx a
• Considerations Concerning the First Formation of Languages,&c. &c.1
• Appendix 1 (see P. 32) the Bee, Or Literary Weekly Intelligencer, For Wednesday, May 11, 1791.
• Appendix 2 Table of Corresponding Passages

Lecture XXVIII^tha

Monday Feb.^ry 7. 1763.

Having now said all I think necessary to observe concerning Demonstrative and Deliberative Eloquence, I come to the 3^d and last Species of Eloquence viz. the Judicial; which is employed either in the Defense of some particular person, or the Support of some particular right or claim as vested in some certain person, or in the contrary of these. That is, it is either Judicial or Civil. In treating of this I shall consider, 1^st What matters may be the Subject of a Judicial oration; 2^dly What arguments may be used in these discourses; 3^dly In what order they are to be placed; 4^thly How they are to be expressed; and 5^thly What writers have chiefly excelled in this manner of Writing with some observations on the distinguishing marks and characteristicks of each.

I^st We are to consider what may be the Subject of a Judicial Oration. This may be either a matter of fact which is affirmed by the one party and denied by the other, | 190 or the Question may respect a certain point of law. This latter again divides into two. For the question may be either whether such a point be law or not; or whether the circumstances of the fact are such as that they bring it within the Verge of that Law. So that all Judiciall questions may be comprehended under some or other of these three heads: either 1^st The question may be concerning the reality of a fact which is alledged by one party and denied by the other; or 2^dly concerning the Existence of a certain Point of Law; or 3^dly concerning the Extent of that law, that is, Whether the circumstances of the fact are such as that they bring it within the Verge of the Law. These 3 heads we will find exactly corresponding to the division given by the ancient writers on this Subject. They said all questions were either De Re, which corresponds to the 1^st of our division; or concerning the circumstances and particularities of the fact, which they said was De Re finita; or after the affair was fixed ^b | 191 it might be disputed whether or not it was agreable to law or not.

Thus much concerning the Subject of Judicial orations; we come now to the 2^d thing proposed viz. ^c what arguments may be used on these heads, in a judicial oration. We shall consider this 1^st with regard to the case where the question is concerning a matter of fact.

Now arguments may be drawn to prove a matter of fact ^d in two ways, either 1^st from its causes, or 2^dly from its effects.—Now as it is the actions of men which ^e commonly are to be examined into, the causes that must be advanced for the proof of any events of this sort are those which generally tend to bring about human actions. Now the proof of any event from the causes that are imagined to have produced it is generally not very satisfactory as there seldom can be causes shewn which infallibly will produce such or such an event. But in no case is the proof of facts from the causes more uncertain than in that of Human actions. The causes | 192 of Human actions are motives; And so far is Certain that no one ever acts without a motive. But then it is no Sufficient proof that one committed any action, that he had a motive to do so. There are many things which may occasion the conterary. If the action be not suitable to the character of the person the motive will not influence him to commit the action it prompts him to. Besides tho one had a motive to such or such an action and tho it was altogether suitable to his character it is still requisite that he should have an opportunity, otherwise the action could not have been committed. In proving therefore ^f an action to have happend by proving that its causes subsisted, we must not only prove that one had a motive to commit such an action, but also that it was one that suited his character, and that he had an opportunity also. But even when all this is done it does by no means amount to a proof of the action. The character of man is a thing so fluctuating that no proof which depends on it can be altogether conclusive. | 193 There may many circumstances interfere which will entirely alter the designs and disposition of the person for that time, and prevent the execution of an action even when there is a strong motive for it, the disposition and character of the person agreable to the action and the fairest opportunity offers. In Blank in MS.oration 1 to prove that Blank in MS. murdered Blank in MS.^g it is said Haereditatem sperabat et magnam Haereditatem etc. etc., each of which arguments taken singly have a considerable weight, but when considered in the gross, the shewing that he had a motive, and that the action was suitable to his character, may serve to shew that he ^h might possibly have had an intention to have comitted the action; and where the motive, character and opportunity all coincide there is a proof that the person may [have] possibly have committed it; but can not amount to a proof that the fact was actually committed. But altho these can not make out cl<e>arly an affirmative proof yet they will be very suffi<cient> | 194 to prove that an action was not committed. The want of opportunity alone is sufficient to prove that the action was not committed. The want of a motive is also a very strong proof, but not so conclusive as the other, since sometimes men act altogether unreasonably and without any strong motive. The actions being conterary to the character of the person is a great proof of the conterary, but neither is it altogether certain as there are many occasions on which one will deviate from the ordinary tenor of his conduct. Cicero in his defense of Roscius 2 endeavours to shew that he had no motive to kill his father, that it was altogether unsuitable to his character etc . . . ⁱ It is this sort of arguments which the Rhetoricians chiefly insist upon and are at greatest pains to divide and subdivide. Thus with regard to the motive they say we do an action either to increase, or procure, or preserve something good, or to diminish, divide, shun, or get free from something evill etc. They insist in the same manner on the character | 195 and consider the Age, the Sex, the Family etc. and even the very name of the person. In the same manner they divide the consideration of the Opportunity into that of ^j Time and place, and so <on>. This may serve to account why the later Orators have insisted almost solely on this sort of arguments, as they alone are fully treated of by the Rhetoricians, on whose directions they seem to have moddelled their orations. This may suffice concerning those arguments which are used to prove a fact from its causes. {Even Cicero himself insists greatly on these arguments, and seems sometimes to strain them rather too far as in the Case of Milo, in which he would shew that he had no reason to kill Clodius, tho this man was continually seeking his life.}

The proof of an event from its effects is sometimes altogether Certain. Thus if one has been seen committing the fact and the witnesses testify it there is no other proof necessary. But there are many cases where the effects either of the action ^k itself or of the intention to do it are not altogether conclusive at first sight, tho they may be very strong presumptions. Thus in the old cause 3 which is commonly quoted the man who had been seen some days before | 196 the murder of a certain person walking about very pensive and melancholy as if he was meditating some horrid or dreadfull action, and was amissing all that night that the murder was committed and could give no account of himself, might very probably be presumed from these effects of the intention of killing one to have had some hand in it but could not be absolutely concluded to have been guilty of it. But when these effects of the intention are joined with those of the action itself the proof is still stronger, as in the case where one who bore an other an ill will was found near his dead body, with his hands bloody, and a great appearance of terror ^l , he would appear to be very probably the murderer; Especially if the arguments from the cause of the action are joind with them. But tho these arguments give a great probability of the commission of the action by the person in whom they are found, yet the want of them does by no means prove the Innocence of the person. | 197 If one should be found whose hands were altogether clean of blood and no appearance of concern after the murther nor anxiety before it, we could not conclude from this that he was innocent. For there are some people such consummate Dissemblers that the<y> can go about the most horrid actions without the least emotion or anxiety either before or after the perpetration.

The Rhetoricians divide all these topicks into many orders and Classes (these will be found in Quinctilian 4 by those who incline to read them; for my part Ill be at no farther trouble about them at present.) ^m

{It is in the proper ordering and disposal of this sort of arguments that the great art of an orator often consists. These when placed seperately have often no great impression, but if they be placed in a naturall order on<e> leading to the other their effect is greatly increased. The best method to answer this is to throw them into a sort of a narration, filling up in the manner most suitable to the design of the Speaker what intervalls there may otherwise be. By this means tho he can bring proof but of very few particulars, yet the connection there is makes them easily comprehended and consequently agreable, so that when the adversary tries to contradict any of these particulars it is pulling down a fabric with which we are greatly pleased and are very unwilling to give up — —}

We shall now make some observations concerning the topicks or foundations of arguments that may be brought to prove anything to be Law or not.—Now when the Law is plainly expressed in the statute there can be no question on this head ⁿ . The only two methods in which any thing can be shewn to be law, are either to shew how | 198 it follows from some Statute {by abstract Reasoning} or how it has been supported as Law by former practise and similar adjudged causes or precedents. This last which is so much in use amongst modern Lawyers was not at all used by the antients either Greeks or Romans. The Rhetoricians amongst all their topicks make not the least mention of Precedents. They have inde<e>d one order of Topicks which they title de similibus {et dissimilibus} ^o In this they mention all the different sorts of Similitude except that of precedents. They are such as the persons having done the like actions before, or other persons in similar circumstances etc., which are evidently altogether different from praecedents (or praecēdents). As therefore there is such a remarkable difference betwixt the modern and the ancient practise in this respect it may not be improper to make a digression in order to explain it.

In the early periods the same persons generally exercise the duties of Judge, | 199 Generall and Legislator, at least the two former are very commonly conjoined. The first thing which makes men submit themselves to the authority of others 5 is the difficulty they feel in accomodating their matters either by their own judgement or by that of their opponents, and find ^p it most adviseable to submit it to some impartiall person. By this means some persons of eminent worth came to be settled as judges and Umpires. When men especially in a Barbarous State are accustomed to submit themselves in some points they naturally do it in others. The same persons therefore who judged them in peace lead them also to battle. In this twofold capacity of Judge and Generall the 1^st Kings and Consulse of Rome and other magistrates would reckon the Judiciall part of their office a Burthen rather than that by which they were to obtain honour and Glory, that was only to be got by military exploits. They therefore were very bold in passing sentence. They would pay very little regard to the conduct of their predecessors as this was the least | 200 important part of their office. This part was therefore for their ease seperated from the other and given to another set of magistrates. These as the Judicial was their only office would be at much greater pains to gain honour and Reputation by it. {Having less power they would be more timid} ^q They would be at pains even to strengthen their conduct by the authority of their predecessors ^r . When therefore there were a few Judges appointed these would be at great pains to vindicate and support their conduct by all possible means. Whatever therefore had been practised by other judges would obtain authority with them and be received in time as Law. This is the case in England. The Sentences of former Cases are ^s greatly regarded and form what is called the common law, which is found to be much more equitable than that which is founded on Statute only, for the same reason as what is founded on practise and experience must be better adapted to particular cases than that which is derived from theory only.

These judges when few in number will be much more | 201 anxious to proceed according to equity than where there is a great number; the blame there is not so easily laid upon any particular person, they are in very little fear of censure and are out of danger of suffering much by wrong procee[e]dings; {besides that a great number of Judges naturally confirm each others prejudices and enflame each others Passions} ^t We see accordingly that the Sentences of the Judges in England are greatly more equitable than those of the Parliament of Paris or other Courts which are secured from censure by their number. The House of Commons when they acted in a Judicial Capacity have not always proceeded with the greatest wisdom; altho their proceedings are kept upon record as well as those of the other Courts, and without doubt in imitation of them. {In censuring any of their own members or in any other such case they have not distinguished themselves by their Justice.} ^u The House of Lords have indeed proceeded in a very equitable manner but this is not to be attributed to their number but rather to—. ^v

The case was the same with regard to the Areopagus and the Councill 6 of the 500 | 202 at Athens; there number was too great to restrict them from arbitrary and summary proceedings. They would here pay as little regard to the proceedings of former Judges as those did who at the same time possessd the Office of Generall allong with that of Judge. The Praetor at Rome indeed often borrowed from the de<c>rees, but then Nothing could be quoted as Law to him but what was found in his edict, which was put up at the beginning of each year and in which he declared in what manner he was to regulate his conduct. (This was the custom till the time of the Edictum perpetuum.) 7 He would have taken it as a great affront to his judgement to have been told that such an one before had done so or so. And no part of the former edicts could be quoted but what was transcribd into his, and in his name it was always to be quoted. There was therefore no room for præcedents in any Judiciall pleadings amongst | 203 the Greeks or Romans; tho no<t>hing can be more common than it is now. And it may be looked on as one of the most ^w happy parts of the British Constitution tho introduced merely by chance and to ease the men in power that this Office of Judging causes is committed into the hands of a few persons whose sole employment it is to determine them.

{This Separation of the province of distributing Justice between man and man from that of conducting publick affairs and leading Armies is the great advantage which modern times have over antient, and the foundation of that greater Security which we now enjoy both with regard to Liberty, property and Life. It was introduced only by chance and to ease the Supreme Magistrate of this the most Laborious and least Glorious part of his Power, and has never taken place untill the increase of Refinement and the Growth of Society have multiplied ^x business immensely} ^y

It is evident that in quoting præcedents the more dire<c>tly they agree with the case in hand in all its circumstances it will be so much the better. For where it differs in many or in any [ony] important parts it will require a good deal of abstract Reasoning to shew the Similitude and bring them to the same case.

The other way to prove any thing to be Law is to shew that it follows from some statute Law by abstract Reasoning. The other is always to be preferred to this where it can be made use of, as the abstract | 204 reasoning renders it less easily comprehended ^z . To shew that any thing is or is not comprehended within any point of Law there are 2 methods. We may either shew, first, that the Law could not have its desired effect unless it was extended thus far, or 2^dly that the Law by the manner in which it is expressed must comprehend it.—The 1^st method is but very seldom applicable and in most cases not conclusive as the precise intention of the Law is not always evident[s], and besides it requires a great deal of abstract Reasoning. In the other manner we must (to shew the meaning of the Law) give a Definition of the meaning of the severall parts and shew the extent of each. (We all know how the ^a Rhetores made their definitions by Genus, Species and differentia.) This is very difficult in all things of a | 205 very generall nature and can not be applied on many occasions. The best way of defining generally is ^b to enumerate the severall qualities of the thing to be defined. But in this case it is most adviseable not to go about to define ever<y> part of the law and shew the whole extent of it but to shew by some part of it which we are to explain clearly that the thing in question is comprehended by it; and leave the rest to others, as I do the Rhetoricall divisions of these heads.

[a]MS XXVIIth

[b]some . . . deleted

[c]by deleted

[d]numbers written above change original order a matter . . . be proved

[e]are deleted

[f]a thing deleted

[1 ]Apparently a reference to the intricate and sensational story behind Cicero’s Pro Auto Cluentio, in which a Roman Blue–Beard named Statius Abbius Oppianicus had been condemned for murder. In this case, the victim may be Dinaca his first mother–in–law: Cluentia, aunt of Cicero’s client; or one of several others. See vii–xvii (19–48) of the oration. But the Latin phrase does not occur in it, though the motive is recurrent. See ii.210–11 below.

[g]three blanks in MS of seven letters each

[h]probabl deleted

[2 ]Pro Roscio Amerino: young Cicero’s first major case, 80bc.—Smith is specially fond of the Pro Milone (cf. ii.209 ff., 215), since this virtuoso defence illustrates so many aspects of Cicero’s skill at the bar— though it was never delivered. Titus Annius Milo was a political gangster and opportunist, and the killing of Clodius by his associates on the Via Appia called for a display of special pleading, and all the barrister’s techniques of suggestion, with a masterly manipulation of ‘proof, paradox, pathos’. Quintilian drew some sixty–four of his illustrations from this speech.

[i]so in MS

[j]blank of four letters in MS

[k]to deleted

[3 ]Not identified.

[l]changed from horror

[4 ]At V.x.55 Quintilian describes ‘definition’, finitio, in terms of genus, species, differens, and proprium; cf. ii.204 below. Quintilian devotes V.x.73 and V.xi to proof by similia of various orders; see also on these topics V.x.25 ff., VII.i.1 and 23 ff.; VIII.xxx ff.; IX.ii.105. He refers to Cicero, De Inventione, I.xxx ff. On Smith’s indifference cf. ii.205 below.

[m]of I.W. inserted at end of parenthesis. One blank line follows with x as key for the interpolation opposite

[n]Those that are either not justly deleted

[o]Hand B

[5 ]Cf. the tenor of this passage with Rousseau, Discours de l’inégalité, which much occupied Smith’s mind at this period; see EPS 250 ff. and Languages, §2, n.3 below; and LJ on judges and judicial power.

[p]ing deleted

[q]Hand B

[r]By deleted

[s]abo deleted

[t]Hand B

[u]Hand B

[v]one and a half blank lines follow

[6 ]See ii.142 n.3 above.

[7 ]The consolidation c.ad 130 of the praetorian edicta into a permanent corpus of law by P. Salvius Julianus Aemilianus (L. Octavius Cornelius), 100–c.169, on the order of Hadrian. Salvius Julianus was the most creative of Roman jurists, and his work was freely incorporated in Justinian’s Digesta (ad 533).

[w]replaces Great

[x]cra deleted

[y]Hand B

[z]This however when necessary may be done in deleted

[a]MS they; y deleted and Rhetores written above

[b]numbers written above reverse original is generally