The Online Library of Liberty

A project of Liberty Fund, Inc.

• A Dialogue Between a Philosopher & a Student of the Common Laws of England.
• A Dialogue of the Common Law.
• Behemoth: the History of the Causes of the Civil Wars of England, and of the Counsels and Artifices By Which They Were Carried On From the Year 1640 to the Year 1660.
• The Bookseller to the Reader.
• Part I. Behemoth, Or the Epitome of the Civil Wars of England.
• Part II.
• Part III.
• Part IV.
• The Art of Rhetoric.
• To the Reader.
• The Whole Art of Rhetoric.
• Book I.
• Book II.
• Book III.
• The Art of Rhetoric Plainly Set Forth. With Pertinent Examples For the More Easy Understanding and Practice of the Same. By Thomas Hobbes of Malmsbury.
• The Art of Sophistry.

BOOK I.

CHAPTER I.

that rhetoric is an art consisting not only in moving the passions of the judge, but chiefly in proofs: and that this art is profitable.

We see that all men naturally are able in some sort to accuse and exsuse: some by chance; but some by method. This method may be discovered; and to discover method is all one with teaching an art. If this art consisted in criminations only, and the skill to stir up the judge’s anger, envy, fear, pity, or other affections; a rhetorician in well ordered commonwealths and states, where it is forbidden to digress from the cause in hearing, could have nothing at all to say. For all these perversions of the judge are beside the question. And that which the pleader is to shew, and the judge to give sentence on, is this only: It is so, or not so. The rest hath been decided already by the law-maker; who judging of universals and future things, could not be corrupted. Besides, it is an absurd thing for a man to make crooked the ruler he means to use.

It consisteth therefore chiefly in proofs, which are inferences: and all inferences being syllogisms, a logician, if he would observe the difference between a plain syllogism and an enthymeme, which is a rhetorical syllogism, would make the best rhetorician. For all syllogisms and inferences belong properly to logic, whether they infer truth or probability. And because without this art it would often come to pass that evil men, by the advantage of natural abilities, would carry an evil cause against a good; it brings with it at least this profit, that making the pleaders even in skill, it leaves the odds only in the merit of the cause. Besides, ordinarily those that are judges, are neither patient, nor capable of long scientifical proofs drawn from the principles through many syllogisms; and therefore had need to be instructed by the rhetorical and shorter way. Lastly, it were ridiculous to be ashamed of being vanquished in exercises of the body, and not to be ashamed of being inferior in the virtue of well expressing the mind.

CHAPTER II.

the definition of rhetoric.

Rhetoric is that faculty, by which we understand what will serve our turn concerning any subject to win belief in the hearer.

Of those things that beget belief, some require not the help of art, as witnesses, evidences, and the like, which we invent not, but make use of; and some require art, and are invented by us.

The belief that proceeds from our invention, comes partly from the behaviour of the speaker, partly from the passions of the hearer; but especially from the proofs of what we allege.

Proofs are, in rhetoric, either examples or enthymemes; as in logic, inductions or syllogisms. For an example is a short induction, and an enthymeme a short syllogism; out of which are left, as superfluous, that which is supposed to be necessarily understood by the hearer; to avoid prolixity, and not to consume the time of public business needlessly.

CHAPTER III.

of the several kinds of orations: and of the principles of rhetoric.

In all orations, the hearer does either hear only, or judge also.

If he hear only, that is one kind of oration, and is called demonstrative.

If he judge, he must judge either of that which is to come, or of that which is past.

If of that which is to come, there is another kind of oration, and is called deliberative.

If of that which is past, then it is a third kind of oration, called judicial.

So there are three kinds of orations; demonstrative, judicial, and deliberative.

To which belong their proper times. To the demonstrative, the present; to the judicial, the past; and to the deliberative, the time to come.

And their proper offices. To the deliberative, exhortation and dehortation. To the judicial, accusation and defence. And to the demonstrative, praising and dispraising.

And their proper ends. To the deliberative, to prove a thing profitable or unprofitable. To the judicial, just or unjust. To the demonstrative, honourable or dishonourable.

The principles of rhetoric out of which enthymemes are to be drawn, are the common opinions that men have concerning profitable and unprofitable; just and unjust; honourable and dishonourable; which are the points in the several kinds of orations questionable. For as in logic, where certain and infallible knowledge is the scope of our proof, the principles must be all infallible truths: so in rhetoric the principles must be common opinions, such as the judge is already possessed with. Because the end of rhetoric is victory; which consists in having gotten belief.

And because nothing is profitable, unprofitable, just, unjust, honourable or dishonourable, but what has been done, or is to be done; and nothing is to be done, that is not possible; and because there be degrees of profitable, unprofitable, just, unjust, honourable and dishonourable; an orator must be ready in other principles, namely, of what is done and not done, possible and not possible, to come and not to come, and what is greater and what is lesser, both in general, and particularly applied to the thing in question; as what is more and less, generally; and what is more profitable and less profitable, &c. particularly.

CHAPTER IV.

of the subject of deliberatives; and the abilities that are required of him that will deliberate of business of state.

Indeliberatives there are to be considered the subject wherein, and the ends whereto, the orator exhorteth, or from which he dehorteth.

The subject is always something in our own power, the knowledge whereof belongs not to rhetoric, but for the most part to the politics; and may be referred in a manner to these five heads.

1. Of levying of money. To which point he that will speak as he ought to do, ought to know beforehand the revenue of the state, how much it is, and wherein it consisteth, and also how great are the necessary charges and expenses of the same. This knowledge is gotten partly by a man’s own experience, partly by relations and accounts in writing.

2. Of peace and war. Concerning which the counsellor or deliberator ought to know the strength of the commonwealth, how much it both now is, and hereafter may be, and wherein that power consisteth. Which knowledge is gotten, partly by experience and relations at home, and partly by the sight of wars and of their events abroad.

3. Of the safeguard of the country. Wherein he only is able to give counsel, that knows the forms, and number, and places of the garrisons.

4. Of provision. Wherein to speak well, it is necessary for a man to know what is sufficient to maintain the state, what commodities they have at home growing, what they must fetch in through need, and what they may carry out through abundance.

5. Of making laws. To which is necessary so much political or civil philosophy, as to know what are the several kinds of governments, and by what means, either from without or from within, each of those kinds is preserved or destroyed. And this knowledge is gotten, partly by observing the several governments in times past by history, and partly by observing the government of the times present in several nations, by travel.

So that to him that will speak in a council of state, there is necessary this; history, sight of wars, travel, knowledge of the revenue, expenses, forces, havens, garrisons, wares, and provisions in the state he lives in, and what is needful for that state either to export or import.

CHAPTER V.

of the ends which the orator in deliberatives propoundeth, whereby to exhort or dehort.

An orator, in exhorting, always propoundeth felicity, or some part of felicity, to be attained by the actions he exhorteth unto: and in dehortation, the contrary.

By felicity is meant commonly prosperity with virtue, or a continual content of the life with surety.

And the parts of it are such things as we call good in body, mind, or fortune; such as these that follow.

1. Nobility, which to a state or nation is to have been ancient inhabitants; and to have had most anciently, and in most number, famous generals in the wars, or men famous for such things as fall under emulation. And to a private man, to have been descended lawfully of a family, which hath yielded most anciently, and in most number, men known to the world for virtue, riches, or any thing in general estimation.

2. Many and good children. Which is also public and private. Public, when there is much youth in the state endued with virtue; namely, of the body, stature, beauty, strength, and dexterity; of the mind, valour and temperance: private, when a man hath many such children, both male and female. The virtues commonly respected in women, are of the body, beauty and stature; of the mind, temperance and housewifery without sordidness.

3. Riches. Which is money, cattle, lands, house-hold-stuff, with the power to dispose of them.

4. Glory. Which is the reputation of virtue, or of the possession of such things as all, or most men, or wise men desire.

5. Honour. Which is the glory of benefiting, or being able to benefit others. To benefit others, is to contribute somewhat, not easily had, to another man’s safety or riches. The parts of honour are sacrifices, monuments, rewards, dedication of places, precedence, sepulchres, statues, public pensions, adorations, presents.

6. Health. Which is the being free from diseases, with strength to use the body.

7. Beauty. Which is to different ages different. To youth, strength of body and sweetness of aspect. To full men, strength of body fit for the wars, and countenance sweet with a mixture of terror. To old men, strength enough for necessary labours, with a countenance not displeasing.

8. Strength. Which is the ability to move any thing at pleasure of the mover. To move, is to pull, to put off, to lift, to thrust down, to press together.

9. Stature. Which is then just, when a man in height, breadth, and thickness of body doth so exceed the most, as nevertheless it be no hindrance to the quickness of his motion.

10. Good old age. Which is that which comes late, and with the least trouble.

11. Many and good friends. Which is to have many that will do for his sake that which they think will be for his good.

12. Prosperity. Which is to have all, or the most, or the greatest of those goods which we attribute to fortune.

13. Virtue. Which is then to be defined, when we speak of praise.

These are the grounds from whence we exhort.

Dehortation is from the contraries of these.

CHAPTER VI.

of the colours or common opinions concerning good and evil.

Indeliberatives, the principles or elements from whence we draw our proofs, are common opinions concerning good and evil. And these principles are either absolute or comparative. And those that are absolute, are either disputable or indisputable.

The indisputable principles are such as these: Good, is that which we love for itself. And that for which we love somewhat else. And that which all things desire. And that to every man which his reason dictates. And that which when we have, we are well or satisfied. And that which satisfies. And the cause or effect of any of these. And that which preserves any of these. And that which keeps off or destroys the contrary of any of these.

Also to take the good and reject the evil, is good. And to take the greater good, rather than the less; and the lesser evil rather than the greater. Further, all virtues are good. And pleasure. And all things beautiful. And justice, valour, temperance, magnanimity, magnificence, and other like habits. And health, beauty, strength, &c. And riches. And friends. And honour and glory. And ability to say or do: also towardliness, will, and the like. And whatsoever art or science. And life. And whatsoever is just.

The disputable principles are such as follow:

That is good, whose contrary is evil. And whose contrary is good for our enemies. And whose contrary our enemies are glad of. And of which there cannot be too much. And upon which much labour and cost hath been bestowed. And that which many desire. And that which is praised. And that which even our enemies and evil men praise. And what good we prefer. And what we do advise. And that which is possible, is good to undertake. And that which is easy. And that which depends on our own will. And that which is proper for us to do. And what no man else can do. And whatsoever is extraordinary. And what is suitable. And that which wants a little of being at an end. And what we hope to master. And what we are fit for. And what evil men do not. And what we love to do.

CHAPTER VII.

of the colours or common opinions concerning good and evil, comparatively.

Thecolours of good comparatively depend, partly, upon the following definitions of comparatives.

1. More, is so much and somewhat besides.

2. Less, is that, which and somewhat else is so much.

3. Greater and more in number are said only comparatively to less and fewer in number.

4. Great and little, many and few, are taken comparatively to the most of the same kind. So that great and many, is that which exceeds; little and few, is that which is exceeded by, the most of the same kind.

Partly, from the precedent definitions of good absolutely.

Common opinions concerning good comparatively, then are these.

Greater good is many than fewer, or one of those many.

And greater is the kind, in which the greatest is greater than the greatest of another kind. And greater is that good than another good, whose kind is greater than another’s kind. And greater is that from which another good follows, than the good which follows. And of two which exceed a third, greater is that which exceeds it most. And that which causes the greater good. And that which proceeds from a greater good. And greater is that which is chosen for itself, than that which is chosen for somewhat else. And the end greater than that which is not the end. And that which less needs other things, than that which more. And that which is independent, than that which is dependent of another. And the beginning, than not the beginning.

(Seeing the beginning is a greater good or evil, than that which is not the beginning; and the end, than that which is not the end; one may argue from this colour both ways: as Leodamas against Chabrias, would have the actor more to blame than the adviser; and against Callistratus, the adviser more than the actor.)

And the cause, than not the cause. And that which hath a greater beginning or cause. And the beginning or cause of a greater good or evil. And that which is scarce, greater than that which is plentiful; because harder to get. And that which is plentiful, than that which is scarce; because oftener in use. And that which is easy, than that which is hard. And that whose contrary is greater. And that whose want is greater. And virtue than not virtue, a greater good. Vice than not vice, a greater evil. And greater good or evil is that, the effects whereof are more honourable or more shameful. And the effects of greater virtues or vices. And the excess whereof is more tolerable, a greater good. And those things which may with more honour be desired. And the desire of better things. And those things whereof the knowledge is better. And the knowledge of better things. And that which wise men prefer. And that which is in better men. And that which better men choose. And that which is more, than that which is less delightful. And that which is more, than that which is less honourable. And that which we would have for ourselves and friends, a greater good; and the contrary, a greater evil. And that which is lasting, than that which is not lasting. And that which is firm, than that which is not firm. And what many desire, than what few. And what the adversary or judge confesseth to be greater, is greater. And common than not common. And not common than common. And what is more laudable. And that which is more honoured, a greater good. And that which is more punished, a greater evil. And both good and evil divided than undivided, appear greater. And compounded than simple, appear greater. And that which is done with opportunity, age, place, time, means disadvantageous, greater than otherwise. And that which is natural, than that which is attained unto. And the same part of that which is great, than of that which is less. And that which is nearest to the end designed. And that which is good or evil to one’s self, than that which is simply so. And possible, than not possible. And that which comes toward the end of our life. And that which we do really, than that which we do for show. And that which we would be, rather than what we would seem to be. And that which is good for more purposes, is the greater good. And that which serves us in great necessity. And that which is joined with less trouble. And that which is joined with more delight. And of the two, that which added to a third makes the whole the greater. And that which having, we are more sensible of. And in every thing, that which we most esteem.

CHAPTER VIII.

of the several kinds of governments.

Becausehortation and dehortation concern the commonwealth, and are drawn from the elements of good and evil; as we have spoken of them already in the abstract, so we must speak of them also in the concrete, that is, of what is good or evil to each sort of commonwealth in special.

The government of a commonwealth is either democracy, or aristocracy, or oligarchy, or monarchy.

Democracy is that, wherein all men with equal right are preferred to the highest magistracy by lot.

Aristocracy is that, wherein the highest magistrate is chosen out of those that have had the best education, according to what the laws prescribe for best.

Oligarchy is that, where the highest magistrate is chosen for wealth.

Monarchy is that, wherein one man hath the government of all; which government, if he limit it by law, is called kingdom; if by his own will, tyranny.

The end of democracy, or the people’s government, is liberty.

The end of oligarchy, is the riches of those that govern.

The end of aristocracy, is good laws and good ordering of the city.

The end of monarchy or kings, is the safety of the people and conservation of his own authority.

Good therefore in each sort of government, is that which conduceth to these their ends.

And because belief is not gotten only by proofs, but also from manners; the manners of each sort of commonwealth ought to be well understood by him that undertaketh to persuade or dissuade in matter of state. Their manners may be known by their designs; and their designs by their ends; and their ends by what we see them take pleasure in. But of this more accurately in the politics.

CHAPTER IX.

of the colours of honourable and dishonourable.

In a demonstrative oration, the subject whereof is praise or dispraise, the proofs are to be drawn from the elements of honourable and dishonourable.

In this place we anticipate the second way of getting belief; which is from the manners of the speaker. For praise, whether it come in as the principal business, or upon the by, depends still upon the same principles; which are these:

Honourable, is that which we love for itself, and is withal laudable; and that good, which pleaseth us only because it is good; and virtue.

Virtue is the faculty of getting and preserving that which is good; and the faculty of doing many and great things well.

The kinds of it are these:

1. Justice, which is a virtue whereby every man obtains what by law is his.

2. Fortitude, which is a virtue by which a man carries himself honourably and according to the laws, in time of danger.

3. Temperance, which is a virtue whereby a man governs himself in matter of pleasure according to the law.

4. Liberality, which is a virtue by which we benefit others in matter of money.

5. Magnanimity, which is a virtue by which a man is apt to do great benefits.

6. Magnificence, which is a virtue by which a man is apt to be at great cost.

7. Prudence, which is an intellectual virtue, by which a man is able to deliberate well concerning any good leading to felicity.

And honourable are the causes and effects of things honourable. And the works of virtue. And the signs of virtue. And those actions the reward whereof is honour. And the reward whereof is rather honour than money. And that which we do not for our sakes. And what we do for our country’s good, neglecting our own. And those things are honourable which, good of themselves, are not so to the owner. And those things which happen to the dead, rather than to the living. And what we do for other men, especially for benefactors. And bestowing of benefits. And the contrary of those things we are ashamed of. And those things which men strive for earnestly, but without fear of adversary.

And of the more honourable and better men, the virtues are more honourable. And more honourable are the virtues that tend to other men’s benefit, than those which tend to one’s own.

And honourable are those things which are just. And revenge is honourable. And victory. And honour. And monuments. And those things which happen not to the living. And things that excel. And what none can do but we. And possessions we reap no profit by. And those things which are had in honour, particularly in several places. And the signs of praise. And to have nothing of the servile, mercenary, or mechanic.

And that which seems honourable; namely, such as follow: Vices confining upon virtue. And the extremes of virtues. And what the auditors think honourable. And that which is in estimation. And that which is done according to custom.

Besides, in a demonstrative oration, the orator must show that he whom he praiseth, did what he praiseth unconstrainedly and willingly. And he does so, who does the same often.

Praise is speech, declaring the magnitude of a virtue, action, or work. But to praise the work from the virtue of the worker, is a circular proof.

To magnify and to praise, differ in themselves as felicity and virtue. For praise declares a man’s virtue; and magnifying declares his felicity.

Praise is a kind of inverted precept. For to say, “Do it because it is good,” is a precept; but to say, “He is good because he did it,” is praise. An orator in praising, must also use the forms of amplification; such as these: He was the first that did it. The only man that did it. The special man that did it. He did it with disadvantage of time. He did it with little help. He was the cause that the law ordained rewards and honours for such actions.

Further, he that will praise a man, must compare him with others, and his actions with the actions of others, especially with such as are renowned.

And amplification is more proper to a demonstrative oration, than to any other. For here the actions are confessed; and the orator’s part is only this, to contribute unto them magnitude and lustre.

CHAPTER X.

of accusation and defence, with the definition of injury.

In a judicial oration, which consists in accusation and defence, the thing to be proved is, that injury has been done: and the heads from whence the proofs are to be drawn are these three:—

• 1. The causes that move to injury.
• 2. The persons apt to do injury.
• 3. The persons obnoxious or apt to suffer injury.

An injury is a voluntary offending of another man contrary to the law.

Voluntary is that which a man does with knowledge, and without compulsion.

The causes of voluntary actions are intemperance, and a vicious disposition concerning things desirable. As the covetous man does against the law out of an intemperate desire of money.

All actions proceed either from the doer’s disposition, or not. Those that proceed not from the doer’s disposition, are such as he does by chance, by compulsion, or by natural necessity. Those that proceed from the doer’s disposition, are such as he does by custom, or upon premeditation, or in anger, or out of intemperance.

By chance are said to be done those things, whereof neither the cause nor the scope is evident; and which are done neither orderly, nor always, nor most commonly after the same manner.

By nature are said to be done those things, the causes whereof are in the doer; and are done orderly, and always or for the most part after the same manner.

By compulsion are done those things, which are against the appetite and ordination of the doer.

By custom those actions are said to be done, the cause whereof is this, that the doer has done them often.

Upon premeditation are said to be done those things, which are done for profit, as the end or the way to the end.

In anger are said to be done those things, which are done with a purpose of revenge.

Out of intemperance are said to be done those things, which are delightful.

In sum, every voluntary action tends either to profit or pleasure.

The colours of profitable, are already set down. The colours of that which is pleasing, follow next.

CHAPTER XI.

of the colours or common opinions concerning pleasure.

Pleasure is a sudden and sensible motion of the soul, towards that which is natural. Grief is the contrary.

Pleasant therefore is that, which is the cause of such motion. And to return to one’s own nature. And customs. And those things that are not violent.

Unpleasant are those things which proceed from necessity, as cares, study, contentions. The contrary whereof, ease, remission from labour and care, also play, rest, sleep; are pleasant.

Pleasant also is that to which we have an appetite. Also the appetites themselves, if they be sensual; as thirst, hunger, and lust. Also those things to which we have an appetite upon persuasion and reason. And those things we remember, whether they pleased or displeased then when they were present. And the things we hope for. And anger. And to be in love. And revenge. And victory: therefore also contentious games; as tables, chess, dice, tennis, &c.; and hunting; and suits in law. And honour and reputation amongst men in honour and reputation. And to love. And to be beloved and respected. And to be admired. And to be flattered. And a flatterer: for he seems both to love and admire. And the same thing often. And change or variety. And what we return to afresh. And to learn. And to admire. And to do good. And to receive good. And to help up again one that is fallen. And to finish that which is unperfect. And imitation; and therefore the art of painting; and the art of carving images; and the art of poetry; and pictures and statues. And other men’s dangers, so they be near. And to have escaped hardly.

And things of a kind please one another. And every one himself. And one’s own pleases him. And to bear sway. And to be thought wise. And to dwell upon that which he is good at. And ridiculous actions, sayings, and persons.

CHAPTER XII.

presumptions of injury drawn from the persons that do it: or common opinions concerning the aptitude of persons to do injury.

Of the causes which move to injury, namely, profit and pleasure, has been already spoken (chap. vi, vii, xi). It follows next, to speak of the persons that are apt to do injury.

The doers of injury are: such as think they can do it. And such as think to be undiscovered, when they have done it. And such as think, though they be discovered, they shall not be called in question for it. And such as think, though they be called in question for it, that their mulct will be less than their gain, which either themselves or their friends receive by the injury.

Able to do injury are: such as are eloquent. And such as are practised in business. And such as have skill in process. And such as have many friends. And rich men. And such as have rich friends, or rich servants, or rich partners.

Undiscovered when they have done it, are such as are not apt to commit the crimes whereof they are accused: as feeble men, slaughter; poor and not beautiful men, adultery. And such as one would think could not chuse but be discovered. And such as do injuries, whereof there hath been no example. And such as have none or many enemies. And such as can easily conceal what they do. And such as have somebody to transfer the fault upon.

They that do injury openly are: such, whose friends have been injured. And such as have the judges for friends. And such as can escape their trial at law. And such as can put off their trial. And such as can corrupt the judges. And such as can avoid the payment of their fine. And such as can defer the payment. And such as cannot pay at all. And such as by the injury get manifestly much, and presently; when the fine is uncertain, little, and to come. And such as get by the injury money, by the penalty shame only. And such on the contrary as get honour by the injury, and suffer the mulct of money only, or banishment, or the like. And such as have often escaped or been undiscovered. And such as have often attempted in vain. And such as consider present pleasure more than pain to come, and so intemperate men are apt to do injury. And such as consider pleasure to come more than present pain, and so temperate men are apt to do injury. And such as may seem to have done it by fortune, nature, necessity, or custom; and by error, rather than by injustice. And such as have means to get pardon. And such as want necessaries, as poor men; or unnecessaries, as rich men. And such as are of very good or very bad reputation.

CHAPTER XIII.

presumptions of injury drawn from the persons that suffer, and from the matter of the injury.

Of those that do injury, and why they do it, it hath been already spoken. Now of the persons that suffer, and of the matter wherein they suffer, the common opinions are these.

Persons obnoxious to injury are: such as have the things that we want, either as necessary, or as delightful. And such as are far from us. And such as are at hand. And such as are unwary and credulous. And such as are lazy. And such as are modest. And such as have swallowed many injuries. And such as we have injured often before; and such as never before. And such as are in our danger. And such as are ill-beloved generally. And such as are envied. And our friends; and our enemies. And such as, wanting friends, have no great ability either in speech or action. And such as shall be losers by going to law: as strangers and workmen. And such as have done the injuries they suffer. And such as have committed a crime, or would have done, or are about to do. And such as, by doing them an injury, we shall gratify our friends or superiors. And such whose friendship we have newly left, and accuse. And such as another would do the injury to, if we should not. And such as by injuring, we get greater means of doing good.

The matters wherein men are obnoxious to injury are: those things wherein all, or most men use to deal unjustly. And those things which are easily hid, and put off into other hands, or altered. And those things which a man is ashamed to have suffered. And those things wherein prosecution of injury, may be thought a love of contention.

CHAPTER XIV.

of those things which are necessary to be known for the definition of just and unjust.

When the fact is evident, the next inquiry is, whether it be just or unjust. For the definition of just and unjust, we must know what law is; that is, what the law of nature, what the law of nations, what the law civil, what written law, and what unwritten law is: and what persons, that is, what a public person or the city is, and what a private person or citizen is.

Unjust, in the opinion of all men, is that which is contrary to the law of nature.

Unjust, in the opinion of all men of those nations which traffic and come together, is that which is contrary to the law common to those nations.

Unjust, only in one commonwealth, is that which is contrary to the law civil, or law of that commonwealth.

He that is accused to have done anything against the public, or a private person, is accused to do it either ignorantly, or unwillingly, or in anger, or upon premeditation.

And because the defendant does many times confess the fact, but deny the unjustice; as that he took, but did not steal; and did, but not adultery; it is necessary to know the definitions of theft, adultery, and all other crimes.

What facts are contrary to the written laws, may be known by the laws themselves.

Besides written laws, whatsoever is just proceeds from equity or goodness.

From goodness proceeds, that which we are praised or honoured for.

From equity proceed those actions, which though the written law command not, yet, being interpreted reasonably and supplied, seems to require at our hands.

Actions of equity are such as these:—Not too rigorously to punish errors, mischances, or injuries. To pardon the faults that adhere to mankind. And not to consider the law, so much as the law maker’s mind; and not the words, so much as the meaning of the law. And not to regard so much the fact, as the intention of the doer; nor part of the fact, but the whole; nor what the doer is, but what he has been always or for the most part. And to remember better the good received, than the ill. And to endure injuries patiently. And to submit rather to the sentence of a judge, than of the sword. And to the sentence of an arbitrator, rather than of a judge.

CHAPTER XV.

of the colours or common opinions concerning injuries, comparatively.

Common opinions concerning injuries comparatively, are such as these.

Greater is the injury, which proceedeth from greater iniquity. And from which proceedeth greater damage. And of which there is no revenge. And for which there is no remedy. And by occasion of which he that hath received the injury hath done some mischief to himself.

He does greater injury, that does it first, or alone, or with few; and he that does it often.

Greater injury is that, against which laws and penalties were first made. And that, which is more brutal or more approaching to the actions of beasts. And that, which is done upon more premeditation. And by which more laws are broken. And which is done in the place of execution. And which is of greatest shame to him that receives the injury. And which is committed against well deservers. And which is committed against the unwritten law; because good men should observe the law for justice, and not for fear of punishment. And which is committed against the written law; because he that will do injury, neglecting the penalty set down in the written law, is much more likely to transgress the unwritten law, where there is no penalty at all.

CHAPTER XVI.

of proofs inartificial.

Of artificial proofs we have already spoken.

Inartificial proofs, which we invent not, but make use of, are of five sorts.

1. Laws. And those are civil or written law: the law or custom of nations; and the universal law of nature.

2. Witnesses. And those are such as concern matter, and such as concern manners. Also they be ancient or present.

3. Evidences or writings.

4. Question or torture.

5. Oaths. And those be either given or taken, or both, or neither.

For laws, we use them thus: when the written law makes against us, we appeal to the law of nature, alleging that to be greatest justice, which is greatest equity. That the law of nature is immutable, the written law mutable. That the written law is but seeming justice; the law of nature very justice; and justice is among those things which are, and not which seem to be. That the judge ought to discern between true and adulterate justice. That they are better men that obey unwritten than written laws. That the law against us does contradict some other law. And when the law has a double interpretation, that is the true one which makes for us. And that the cause of the law being abolished, the law is no more of validity.

But when the written law makes for us, and equity for the adversary, we must allege: That a man may use equity, not as a liberty to judge against the law; but only as a security against being forsworn, when he knows not the law. That men seek not equity because it is good simply, but because good for them. That it is the same thing not to make, and not to use the law. That as in other arts, and namely, in physic, fallacies are pernicious; so in a common-wealth it is pernicious to use pretexts against the law. And that in common-wealths well instituted, to seem wiser than the laws is prohibited.

For witnesses, we must use them thus. When we have them not, we must stand for presumptions, and say: That in equity, sentence ought to be given according to the most probability. That presumptions are the testimony of the things themselves, and cannot be bribed. That they cannot lie.

When we have witnesses against him that has them not, we must say: That presumptions, if they be false, cannot be punished. That if presumptions were enough, witnesses were superfluous.

For writings, when they favour us, we must say: That writings are private and particular laws; and he that takes away the use of evidences, abolisheth the law. That since contracts and negociations pass by writings, he that bars their use dissolves human society.

Against them, if they favour the adversary, we may say: That since laws do not bind that are fraudulently made to pass, much less writings; and that the judge being to dispense justice, ought rather to consider what is just than what is in the writing. That writings may be gotten by fraud or force, but justice by neither. That the writing is repugnant to some law, civil or natural; or to justice; or to honesty. That it is repugnant to some other writing, before or after. That it crosses some commodity of the judge; which must not be said directly, but implied cunningly.

For the torture, if the giving of it make for us, we must say: That it is the only testimony that is certain. But if it make for the adversary, we may say: That men enforced by torture, speak as well that which is false as that which is true. That they, who can endure, conceal the truth; and they who cannot, say that which is false, to be delivered from pain.

For oaths, he that will not put his adversary to his oath, may allege: That he makes no scruple to be forsworn. That by swearing he will carry the cause, which, not swearing, he must lose. That he had rather trust his cause in the hands of the judge, than of the adversary.

He that refuseth to take the oath may say: That the matter is not worth so much. That if he had been an evil man, he had sworn, and carried his cause. That to try it by swearing, for a religious man against an irreligious is as hard a match, as to set a weak man against a strong in combat.

He that is willing to take the oath, may pretend: That he had rather trust himself, than his adversary; and that it is equal dealing for an irreligious man to give, and for a religious man to take the oath. That it is his duty to take the oath, since he has required to have sworn judges.

He that offers the oath, may pretend: That he does piously commit his cause to the Gods. That he makes his adversary himself judge. That it were absurd for him not to swear, that has required the judges to be sworn.

And of these are to be compounded the forms we are to use, when we would give, and not take the oath; or take and not give; or both give and take; or neither give nor take.

But if one have sworn contrary to a former oath, he may pretend: That he was forced: that he was deceived; and that neither of these is perjury, since perjury is voluntary.

But if the adversary do so, he may say: That he that stands not to what he hath sworn, subverteth human society. And (turning to the judge): What reason have we to require, that you should be sworn that judge our cause; when we will not stand to that we swear ourselves?

And so much for proofs inartificial.