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 XXIX ^a

Febry. 14^th.

Monday

In the last lecture I gave ye an account of the severall things which may be the Subject of a Judiciall oration and also of the severall topicks from which arguments for the proof of those severall questions ^b may be drawn. The next thing which writers on this Subject generally treat of is the method of a Judiciall oration.

They tell us that every regular oration should consist of 5 parts. 1 There are it is true two chief parts, the Laying down | 206 the proposition and the Proof. But in the Connecting these two properly together and [and] setting them out in the ^c brightest light, the Oration they say naturally divides itself into 5 parts. The 1^st of these is the Exordium, in which the orator [explains] briefly explains the purpose of his discourse and what he intends ^d to accuse the adversary of, or to acquit his Client of. 2^d Part is, according to them, the Narration. The orator in this Relates not only those facts which he is afterwards to prove but puts the whole Story into a connected narration, supplying those parts of himself, in the manner mos<t> suitable <to his> design, which he can not prove. The reason they give for this is that the severall parts being thus connected gain a considerable strength by the appearance of probability and connection so that it is difficult afterwards to wrest our belief from them. And by this means tho we can prove but a very small part of the facts yet those which we have proved give the others by the close connection they have with ^e them a great appearance of | 207 truth and the whole Story has the appearance, at least, of considerable probability. In the practise of the modern courts of Judicature the Narration is never introduced; The pleader barely relates the things he is to prove, without giving us a detail of the whole transaction; and it is only where there is very little attention and great ignorance that this can have much weight. The Innatention and confusion which prevailed in the ancient courts is such as we have no conception of, and the ignorance and folly of the Judges as great as can well be imagined. By this means a well told story would have a great influence upon them. The Courts were then in very little better order than the mob in the pit of an ill regulated play house and easily turned to either side. We see in one of Demosthenes 2 orations ^f viz. that upon ^g when his adversary Æschines had accused him of calling him the friend of Philip and Alexander, he said he did no such thing, he called him, indeed, the Slave of Philip who had been bribed by his gold, but | 208 had never given him the name of his friend. And this, he says, was the name he undoubtedly best deserved. We shall appeal, says he, to these Judges, What think ye my Countrymen: Is this man to be called the friend or the Slave of Philip? The judges we find called out, The Slave, The Slave; for he goes on, ‘ye see what is their opinion.’ Some pe<r>sons which he had place[e]d among them and hired or encouraged to that purpose, called out as he wanted them and the rest seconded them without hesitation. The orators then managed the courts of Judicature in the same manner as these Managers of a play house do the Pit. They place some of their friends in different parts of the pit and as they Clap or hiss the performers the rest join them; And so the orators then got some persons who began the Cry which the rest for the most part accompanied. This was the case at Athens. The Courts at Rome were much more Regular and in better order and to this in a great measure we may attribute the stability of their Commonwealth. The | 209 Athenian State did not continue in its Glory for above 70 years; viz. from the Battle of Platea from which we may date the commencement of the democracy till the Taking ^h of the City and the Settling of the Tyrants under Lysander. 3 The Roman State again continued in its grandeur for above 500 years 4 viz. from the Expulsion of the Tarquins till the Ruin of the Republick under Julius Caesar.

But even in these Courts the Orators made a very great use of those narrations, and in cases where the facts they could prove were but very few and often little tending to the main point. Thus in the Oration for Milo 5 Cicero gives us a very particular and minute detail of the whole transaction, how they met, fought, etc. etc. He would have us to believe that not Milo but Clodius had lain in wait for his adversary, tho it ⁱ was well known at Rome at time that their meeting was intirely accidentall. He proves indeed pretty plainly that Milo ^j had not lain in | 210 wait for Clodius, as he staid in the Senate till the ordinary time, that he went home, changed his shoes and put of his cloak etc., but he proves no more; the rest ^k depends intirely on its connection with these circumstances.—In the same manner in his oration for Cluentius, which I believe is ^l the finest as well as it is the longest of all his orations, he endeavours to prove that it was not Cluentius but his accuser ^m <Oppianicus> who had bribed the Judges. He does not pretend to deny that they had been bribed, as there had been severall[s] banished on that account by a court in which severall[s] of the judges then sitting had been present, but he gives the bribery to a different person. Cluentius had been acquitted and <Oppianicus> condemned; the most probable account of the Bribery in this case was that they had been bribed by the person acquitted. But he endeavours to prove in a very pretty manner that the Bribe had been given by the other. The only fact he proves in support of | 211 this is that <Oppianicus> had given one <Staienus>^m 640000 6 Sesterii, perhaps for a very different cause than the Bribing of the Judges. This he says must have certainly been to bribe the Judges as it made 40000 to each of them, else what would have been the design of the odd 40000. The whole story is told in a very pleasant and entertaining manner and had such an effect on the Judges that Cluentius was acquitted, in all appearance conterary to Justice. And we[e] see that Cicero glories more on this occasion of his Address in ⁿ fooling the Judges than on any other. {We may observe also with regard to this Oration that Cicero gains the favour of his Judges in the Exordium or Preface to his Client and prejudices them against his opponent, by telling before them the great and uncontrovertible crimes he had been guilty of.}

The Regularity and order of the Procedure of the Courts, however, made the lives and property of the subjects pretty safe in most cases, whereas at Athens ^o the disorder (as we said) was such that it was just heads or tails whether the sentence was given for or against one ^p . We see from the accounts we have of the Condemnation of Socrates 7 that it was not any crime he was convicted of, for all the Judges inclined to acquit him, but his | 212 behaving ^q somewhat haughtily and not making the acknowledgements he required, which brought him under a Capitall punishment. This Uncertainty and Variableness of the Courts at Athens ^r was so great that none allmost cared to stand their trial. When Alcibiades 8 had performed the most Gallant exploits at Syracuse and heard that he was accused at home of impiety he would not stand his trial, but fled to Lacedemon (which was in effect the cause of the Ruin of that State). When they asked why he would not trust his life in the hands of his countrymen he told them that he would trust them with any thing but that, and with it he would not trust his own mother, least she should put in the black bean instead of the white one. This however is not now in use as the Courts of Judicature are brought into a different form; So that I shall not insist on the proper manner of executing it.

| 213 The other 3 parts are the Confirmation ^s the Refutation and the Perroration. The Confirmation consists in the proving of all or certain of the facts alledged, and this is done by going thro the Arguments drawn from the severall Topicks I mention’d in the last Lecture; and the Refutation or the Confuting of the adversaries arguments is to be gone thro in the same manner. The later ^t Orators adhered most strictly to the Rules laid down by the Rhetoricians. We see that even Cicero himself was scrupulously exact in this point, so that in many indeed most of his Orations he goes thro all of these topicks. It would probably have been rekoned a defect to have ommitted any one, and not to have lead an argument from the topic de Causa, Effectu, Tempore etc. This may serve to shew us the low state of philosophy at that time. Whatever branch of Philosophy had been most Cultivated and has made the greatest progress will necessarily be most agreable | 214 in the prosecution. This therefore will be the fashionable science and a knowledge in it will give a man the Character of a Deep philosopher and a man of great knowled<ge>. If Naturall Phil<osophy> or Ethicks or Rhetor<ick> be the most perfect Science at that time then it will be the fashionable one. Rhetorick and Logic or Dialectick were those undoubtedly which had made the greatest progress amongst the Ancients, and indeed if we except a little of moralls were the only ones which had been tollerably cultivated. These therefore were the fashionable sciences and every fashionable man would be desirous of being thought well skilled in them. Cicero therefore attempted and has succeeded in the attempt to display in all his writings a compleat knowledge of these Sciences. He adheres however so strictly to these Rules that had it not been ^u looked on as mark of ignorance not to be acquainted with every particular, nothing else could have induced him to it. In his Oration in defence of Milo | 215 he has arguments drawn from all the 3 topicks with regard to the Cause: That is that he had no motive to kill Clodius, that it was unsuitable to his character, and that he had no opportunity. These one would have thought could not take place in this case, and yet he goes thro them all. He endeavours to shew that he had no motive, tho they had been squabling and fighting every day and <he> had even declared his intention to kill him; That it was unsuitable to his character altho he had killed 20 men before; and that he had no opportunity altho we know he did kill him.

Altho however a science that is come to a considerable perfection be generally the fashionable one yet it takes some time to establish it in that character. Antiquity is necessary to give any thing a very high reputation as a matter of Deep knowledge. One who reads a number of modern books altho they be very excellent will not get thereby the Character of a Learned man; The acquaintance of the ancients will alone procure him that name. We see accordingly that tho Cicero when Dialectick | 216 and Rhetorick were come to be sciences of considerable standing is at great pains to display his knowledge in all their Rules, Demosthenes, who lived at a time when they had no long standing in Greece, has no such affectation but proceeds in the way which seemed most suitable to his subject.

The Perroration contains a short summary ^v of the whole arguments advanced in the preceding part of the discourse, placed in such a way as naturally to lead to the conclusion proposed. To this the Roman Orators generally add some arguments which might move the Judge to decide in one way rather than in another; By either shewing the enormity of the crime if the person accused be his opponen[en]t, and setting it out in the most shocking manner; or if he is a defendant by mitigating the action and shewing the severity of the punishment etc. This latter the Greeks never admitted of; the other is the naturall conclusion of every discourse.

We have a great number of Greek orations still remaining. We have severall[s] of | 217 Lysias, 9 a good number of Isaeus, some of Antiphon, one of ^w Lycurgus, of ^x and also severall[s] of Æschines, besides about 45 of Demosthenes. We need not take examples of the peculiar manner of each of these, as they are now but obscurely understood, at least the more ancient ones.

The Judiciall orations of the Greeks may be considered as of two sorts: 1^st those which they called Publick, and 2^dly the private ones. In the causes which regarded only the private affairs of an individuall it was not allowed for any one to plead the cause but the party concerned. The Patrons and Clients of Rome were never established in Greece in any shape. The only cases wherein any one but the person concerned was allowed to plead was where the party could not thro sickness or other incapacity appear at the Judgement of the Cause and when he who undertook it was a near relation of the | 218 persons whose cause he plead; bothe these circumstances were necessary. The orator in this case therefore did not pronounce the oration himself, but composed one to be delivered by the party concern’d and adapted to his character and station. In the Publick ones in which the community was someway concerned the Orator spoke in his own person. I shall give you examples of both of these manners from Isaeus ^y and Demosthenes, betwixt whom and Cicero I shall make a comparison. 10

Lysias is the most ancient of all the Orators whose works have come to our hands. He wrote ^z private Orations to be delivered by the persons concerned; and in these he studied to adapt them to the Character of a simple good natured man not at all versed in the Subtility and Chicane of the Law. Isaeus <was> the Disciple of Lysias and the master of Demosthenes. He seems to have had neither the Fire of the latter nor the Simplicity of the former ^a . The character he studied in his orations which were on private | 219 causes as well as those of Lysias, was that of a plain sensible honest man, 11 and to this his orations are very well adapted. He is said however to have resembled Lysias so much that many could not distinguish betwixt the stile of the one and the other. Dionysius of Halicarnassus has however shewn us severall differences, 12 and by what we can now judge of their Stile and Language it seems to have been still greater than he makes it. The Exordium of their orations is much the same. They in it barely give us an account of the thing they are to prove, without any incentive arguments to either side; But their narrations are very different. There is so far alike in both that they do not wrest or torture any matter of fact to make it suit their purpose but deliver it as it realy happened. But as Lysias studied the Character of a Simple man, so his narration is altogether suitable to that Character. He introduces it barely by telling the Judges that they would understand it better on hearing the whole story. In the course of the narration he observes no order but delivers | 220 the severall facts in the same order as they occurred and seems to tell the story as much to refresh his own memory as to inform his Judges; And for the same reason he relates not only those which are necessary to the cause but those which are noway connected with it. And as they are delivered in this dissorderly method, so it would be unnaturall for him to Recapitulate them, and therefore in the Conclusion he only draws an inference from the whole. Isaeus on the other hand in the Character of a plain and sensible man, appears to have considered and weighed maturely his subject before he ventures to speak on it, and for this reason they are all classed in proper order and are excellently adapted to the Subject he has in hand. He introduces his narration not only by telling ^b that ^c they will understand the cause the better if they hea<r>d the story, but specifies the particular points he intends it should illustrate, and introduces such facts only as tend to this end. And as they are delivered in this orderly manner, so he summs them up exactly ^d and in order at the end. We may take as an example of his method his oration concerning the succession of Appollodorus. 13 N.B. Regard to Dead and keeping up house. Pub. Off. ^e

[a]MS XXVIII

[b]replaces subjects

[1 ]See ii.213 below.

[c]most deleted

[d]either deleted

[e]those that inserted above, then deleted

[2 ]The scorn expressed by Demosthenes (De Corona 51–2) for anyone who calls him a friend of Philip shows the blank (note g above) to represent ‘the Crown’.

[f]last four words replace Diogenes Phillipoppicks;

[g]blank of eight letters in MS (cf. note 2)

[h]replaces Conquest

[3 ]497 bc; cf. ii.143 n.4 above. The Spartan general Lysander supported the setting up of the Thirty Tyrants after the surrender of Athens in spring 404 bc (cf. ii.144 n.5 above); i.e. seventy–five years later.

[4 ]510–44 bc (the assassination of Caesar): i.e. 466 years.

[5 ]Cf. ii.194 n.2 above, and 215 below.

[i]replaces the conterary

[j]replaces Clodius

[k]must deleted

[l]one of deleted

[m–m]proper names in angled brackets supplied for four blanks in MS

[6 ]Cf. ii.193 n.1 above. The failure of the notetaker to catch the often repeated name of the notorious villain in this extraordinary case (Oppianicus) can be explained only by his bewilderment over the familial, testamentary, and judicial complexities of the melodrama—if Smith attempted to unravel them. The forensic skill of the orator is matched only by the virtuosity he attributes to the poisoner. (For Staienus see xxiv.65 ff.). No wonder this speech was used even more often than the Pro Milone by Quintilian, and that so many writers quote Quintilian’s report of Cicero’s boast of his fooling of the judges in the cause: ‘se tenebras offudisse iudicibus in causa Cluentii gloriatus est’ (II.xvii.21).

[n]the deleted

[o]replaces in Greece

[p]From this it followed deleted

[7 ]For the accusation of Socrates by Anytus and his two instruments Lycon (an orator) and Meletus (a poet), see the two Apologies by Plato (an eye–witness at the trial) and Xenophon. Plato’s Euthyphro, Crito and Phaedo present Socrates at and after the time of his trial. Xenophon cites the evidence of Hermogenes, the intimate friend of Socrates.

[q]with deleted

[r]made deleted

[8 ]Plutarch, Apophthegmata of Kings and Commanders, in Moralia, 186E 6.

[s]and deleted

[t]Rhet deleted

[u]the fashion nothing could have e ? deleted

[v]replaces state

[9 ]Of the ten Attic orators recognised as the ‘canon’ some time before Dionysius of Halicarnassus (including Lycurgus, whom he names in On Imitation, IX.v.3), Isocrates has already been dealt with at ii.121–2 above. This leaves Hyperides, Dinarchus and Andocides unaccounted for. Since Dionysius wrote a short treatise on Dinarchus (though he considered Hyperides a much better orator) he may have been in Smith’s mind here; but Quintilian omits him from his roll–call of orators at XII.x.12–26.—It is useful to distinguish a first generation (5th to early fourth century bc), Antiphon, Andocides, Lysias, Isaeus, Isocrates; and a second (latter fourth century). Aeschines, Demosthenes, Lycurgus, Hyperides, Dinarchus ‘the last of the ten’; with the minor orator Demades.

Of the sixty–one extant speeches once attributed to Demosthenes, the eighteenth–century critics accepted forty–five as genuine; later scholarship has reduced the number to under thirty.

[w]MS of one

[x]blank of about nine letters in MS

[y]De deleted, then a blank of five letters in MS (the following paragraph supplies Lysias to fill the surprising gap. See note 10 below)

[10 ]Four days before this lecture Smith referred (LJ iii.64, 10 Feb. 1763) to the oration of Lysias Against Diogeiton, ‘which I will perhaps read in the other lecture’. There is no sign here that he did so; the notetaker’s initial failure to catch the orator’s name makes it seem unlikely. At LJ iv.78 (28 Feb. 1763) he praises the way in which in his Funeral Oration Lysias uses the Athenians’ conduct at the time of the victory at Megara as an example to his hearers.

[z]as deleted

[a]MS latter (see below, ii. 219–221)

[11 ]See i.85 n.5 above, and ii.235–6 below.

[12 ]The treatises by Dionysius of Halicarnassus on Isaeus and Lysias as well as the short prologue on The Ancient Orators are in his Critical Essays i (LCL) and in his Opuscules rhétoriques i (ed. G. Aujac, Budé series, 1978).

[b]in deleted

[c]he deleted

[d]exactly, deleted, then rewritten above

[13 ]On the Estate of Apollodorus (no 7 in LCL edn): on the unjust treatment of a nephew’s inheritance by his sole surviving uncle, Eupolis, and the claim now made for the estate of the deceased nephew by Thrasyllus (his half–sister’s son) whom he was in the process of adopting at the time of his death. ‘Pub. Off.’ refers to Thrasyllus having been inscribed in the public official register as the adopted son of Apollodorus. Of the twelve surviving speeches of Isaeus all but one concern inheritances.

[e]last sentence squeezed minutely into remaining space at end of quire 105