Chapter 4

¶ The fyrst is called coniecturall. The se- conde / legitime. The thirde / iudiciale / and euery of these hathe his owne proper pla- ces to fet out argumentes of them / where- fore they shall be spoken of seuerally. And fyrste we wyll treate of state coniecturall / whiche is vsed whan we be certayne that the dede is done / but we be ignorant who dyd it / and yet by certayne coniectures we haue one suspecte / that of very lykelyhode it shulde be he that hathe commytted the cryme. And therfore this state is called con[-] iecturall / bicause we haue no manifest p[ro]fe / but all onely great lykelyhodes / or as the Rhetoriciens call them / coniectures.

¶ Example.

THere was a great contencion in the Grekes army afore Troye betwene Ulisses and Aiax / after the dethe of Achil- les / which of them shulde haue his armour as nexte to the sayd Achilles in valiaunt- [D.vii.v] nes. In whiche controuersye whan the Grekes had Iuged the sayd armour vnto Ulisses / Aiax for very great disdayne fell out of his mynde / & shortly after in a wode nygh to the hooste / after he had knowen (whan he cam agayne to hym selfe) what folyssh prankes he had played in the tyme of his phrenesy / for sorow & shame he slewe hym selfe. Sone vpon this dede cam Ulis- ses by / whiche seynge Aiax thrust thrughe with a swerde: cam to hym / and as he was about to pull out the swerd / the frendes of Aiax chau[n]ced to com the same way / which seynge theyr frende deed / and his olde ene- my pullyng out a swerde of his body / they accused hym of murder.

¶ In very dede here was no profe. For of truthe Ulisses was nat gylty in the cause. Neuer theles the enuye that was betwene Aiax and hym: made the mater to be nat a lytle suspect / specially for y^t he was fou[n]de there with the sayd Aiax alone / wherefore the state of the plee was coniecturall / whe[-] ther Ulisses slew Aiax or nat.

¶ The preface.

THe preface is here euyn as it is in other oracions. For we begyn accor[-] dyng to the nature of the cause y^t we haue on ha[n]de / either in blamyng our aduersary / [D.viii.r] or els mouynge the herers to haue pity on our client. Or els we begyn at our owne p[er]- sone / or at the prayse of the Iuge. &c[etera].

¶ The narracion.

THe narracio[n] or tale is the shewynge of the dede in maner of an historye / wherin y^e accuser must craftly enterme[n]gle many suspicions which shall seme to make his mater p[ro]uable. As Tulli in his oracion for Milo / where in his narracion he inten- deth by certayn co[n]iectures to shew y^t Clo[-] dius laye in waite for Milo / he in his sayd narracion handeleth that place thus.

¶ In the meane season wha[n] Clodius had knowlege that Milo had a lawfull & neces[-] ry iourney to the city of Lauine y^e .xiii. day afore the kalendes of Marche / to poynte who shuld be hed preest there / which thing longed to Milo because he was dictatour of that towne: Clodius sodaynely the day afore departed out of Rome to set vppon Milo in a lordeshyp of his owne / as after was well perceyued. And suche haste he made to be goyng that were as the people were gadered y^e same day for mat[er]s wher- in also he had great adoo hym selfe / & very necessarye it had ben for hym to haue ben there / yet this nat withstandyng / all other thynges aparte: he went his way / whiche [D.viii.v] you may be sure he wold neuer haue done / saue onely that he had fully determined to preuent a tyme and place conuenient for his malicius ente[n]t afore Miloes comyng.

¶ In this pece of Tullies narracion are entermengled fyrst that Clodius knew of Miloes goynge / whiche maketh the ma- ter suspecte y^t Clodius went afore to mete with him / for this was well knowen afore that Clodi[us] bare Milo great grudge and malice. Next is shewed the place where as Clodius met Milo / whiche also gyueth a great suspicion / for it was nygh Clodius place / where he myght sone take socour / & the tother was in leest assurau[n]ce. Thyrdly that he departed out of the city / what tyme it had ben most expedient / ye / & also great- ly requisite for hym to haue ben at home. And that again maketh the mater suspect / for surely he wold nat (as Tully hym selfe saieth) in no wise haue ben absent at suche a busy tyme / onles it had ben for som great purpose / and what other shulde it seme tha[n] to slee Milo. As surely euident it was that they buckled to gyther / and this was well knowen that Milo had a necessary cause to go furth of Rome at that tyme. Contra[-] ryly in Clodius coulde be perceyued non other occasion to departe than oute of the [E.i.r] citie: but of lykelyhood to lye in wayte for Milo.

¶ The proposicion.

OUt of the narracion must be ga- deryd a briefe sentence / wherein shall stande the hole pithe of the cause / for Rhetoriciens put incontinent af[-] ter the narracion diuision / which is a part of contencion / & dothe bryefly shew wherin the controuersy doth stande / or what thin- ges shall be spoken of in the oracion. This diuision is deuyded into seiunction and di- stribucion.

¶ Seiunction is whan we shew wherein our aduersaries and we agree / and what it is / whereupon we stryue. As they that ple- dyd Clodius cause agaynst Milo / myght on this maner haue vsed seiunction. That Milo slew Clodius: our aduersaries can nat denaye / but whether he myght so do lawfully or nat / is our controuersy. Distri- bucion is the proposicion wherein we de- clare of what thynges we wyll speke / of whiche yf we propose how many they be / it is called enumeracion / but yf we do nat expresse the nombre / it is called exposicion.

¶ Example of bothe is had in the oracion [E.i.v] that Tully made to the people that Pom- peyus myght be made chiefe capitayne of the warres agaynst Mithridates and Ti- granes / where after the preface and narra[-] cion he maketh his proposicion by exposi- cion thus.

Fyrste, I thynke it expedyent to speke of the nature & kynde of this warre / and after that of the greatnes thereof / and than to shewe how an hede or chiefe capy- tayne of any army shulde be chosen.

Whiche last membre of his exposicion he a- gayne distributeth into foure partes thus as foloweth.

TRuely this is myne opinion / that he whiche shall be a gouernour of an hoost / ought to haue these foure property- es in hym. The fyrste is / that he haue per- fyte knowlege of all suche thynges as lon- geth to warre. The seconde is that he be a man of his handes. The thyrde that he be a man of suche auctority: that his dignity may cause his souldiers to haue hym in re- uerence and awe. The fourth is that he be fortunate and lucky in all thynges that he goeth about.

¶ Tully in the oracion for Milo / propo- seth all onely shewynge wherin the contro[-] uersy of the plee dyd stande on this maner [E.ii.r] as foloweth.

IS there than any thynge els y^t must e tryed and iudged in this cause saue this: whether of them bothe beganne the fraye and entended to murder the tother? No surely. So that yf it can be founden that Milo went about to distroye Clodi- us / than he be punysshed therefore accor- dyngly. But yf it can be proued that Clo- dius was the begynner and layed wayte for to slee Milo / and so was the sercher of his owne dethe / and that what Milo dyd it was but to defende hym selfe frome the treason of his enemy and the sauegarde of his lyfe: that than he may be delyuered and quyt.

¶ Of confirmacion.

THe confirmacion of the accu- ser is fetched out of these pla- ces / wyll / and power. For these two thynges wyll cause the persone that is accused to be greatly suspect that he had wyll to do the thyng that he is accused of / and that he myght well ynoughe brynge it to passe.

[E.ii.v]

¶ To proue that he had wyll therto: you must go to .ii. places. The one is y^e qualite of the persone / & the other is the cause that meuyd him to the dede. The qualitie of the person is thus handled. First to loke what is his name or surname / and if it be nough[-] ty to saye that he had it nat for nothynge: but that nature had suche pryue power in men to make them gyue names according to the maners of euery person. Than next to behold his contrey. So Tulli in his ora[-] cion made for Lucius Flaccus / to unproue the witnes that was brought against him by Grekes / layeth vnto them the lightnes of theyr contrey. This (sayeth Tulli) do I say of the hole nacion of Grekes. I grau[n]t to them that they haue good lernyng / and the knowlege of many sciences. Nor I de- nye nat but that they haue a pleasant and marueylouse swete speche. They are also people of high and excellent quicke wyt / & thereto they be very facundiouse. These & suche other qualities wherein they booste the[m] selfe greatly: I wyll nat repyne agai[n]st it that they bere the maistry therein. But as concernyng equitie and good conscie[n]ce / requisite / in berynge of recorde / or gyuyng of any wytnes / & also as touchynge faith- fulnes of worde and promyse: truely this [E.iii.r] nacion neuer obserued this property / nei- ther they knewe nat what is the strength / auctoritye / and weight therof.

¶ So to Englysshmen is attributed su[m]p- tuousnes in meates & drinkes. To French men / pryde / & delyte in new fantasyes. To Flemmynges and Almaynes / great dryn- kyng / & yet inue[n]tife wittes. To Britayns / Gascoignes / and Polones / larrecine. To Spanierdes / agilitye. To ytaliens / hygh wyt and moche subtilty. To Scottes / bold[-] nes / to Irissh men / hastines. To Boemes valiauntnes and tenacite of opinions. &c.

¶ After that to loke on his kynred / as yf his father or mother or other kynne were of yll disposicion / for as the tree is: suche fruite it bereth.

¶ On this wyse dothe Phillis entwyte Demophon / that his father Theseus vn- curteysly and trayterously lefte his loue Ariadna alone in the desert yle of Naxus / & contrary to his promise stale from her by nyght / addynge _Heredem patria perfide frau- dis agis_. That is to saye / vntrew and false forsworne man / thou playest kyndely the fathers heyre / in deceytable begylynge of thy true louer.

¶ After that we must loke vppon the sex / whether it be man or woman that we ac- [E.iii.v] cuse / to se yf any argume[n]t ca[n] be deduct out of it to our purpose. As in men is noted au[-] dacity / women be comonly tymerouse.

Than nexte / the age of the persone. As in Therence Simo speketh of his son Pam- philus / sayeth vnto his man called Sosia / how couldest thou know his condicions or nature afore / whyle his age and feare / and his maister dyd let it to be knowen.

¶ Hipermestra in Ouides epistels ioineth these .ii. places of sex & age to gyther thus.

¶ I am a woman & a yong maiden / milde & gentyll / both by nature & yeres. My soft handes are nat apte to fiers batayles.

¶ After these folow stre[n]gth of body / or agi[-] lity / & quicknes of wyt / out of whiche may be broght many reaso[n]s to affyrme our pur[-] pose. So Tulli in his oracion for Milo / wyllynge to proue y[at] Clodius was the be- gynner of the fraye / sheweth that Milo (whiche was neuer wont but to haue men about hym) by chaunce at that tyme had in his company certayne Musiciens and maydens that wayted on his wyfe / whom he had syttynge with hym in his wagen. Contraryly Clodius that was neuer wo[n]t afore but to ryde in a wagen & to haue his wyfe with him: at that tyme rode furth on horsebacke. And where as afore he was al- wayes accustomed to haue knaues & que- [E.iiii.r] nes in his company: he had than non but tall men with hym / & (as who shulde say) men piked out for the nones. ¶ To this is added forme / as to assay yf we can haue a- ny argument to our purpose out of the per[-] sones face or countenance / & so doth Tully argue in his oracio[n] agaynst Piso / sayeng.

¶ Seest thou nat now thou beest? doest y[o]u nat now p[er]ceyue what is mennes co[m]playnt on thy visage? there is no[n] that co[m]plaineth that I wote nat what Surrien & of theyr flocke whiche be but newly crepte vp to ho[-] nour out of the donghyll is now made con[-] sull of the city. For this seruile colour hath nat deceiued vs nor hery cheke balles / nor rotten & fylthy tethe / thyne iyes / thy bro- wes / forhed / & hole cou[n]tenau[n]ce / which in a maner doth manifest me[n]nes co[n]dicio[n]s & na[-] ture it hath deceiued vs. ¶ This done / we must consyder how he hath be[n] brought vp y[at] we accuse / among whom he hath lyued / & whereby / how he gouerneth his houshold / & assay if we ca[n] pyke out of these ought for our purpose. Also of what state he is of / fre or bond / riche or pore / beryng office or nat / a man of good name / or otherwise / wherin he deliteth moost / which places do expresse ma[n]nes lyuyng / & by his lyuyng: his will & mynde / as I wold declare more fully / saue [E.iiii.v] that in introductions men must labour to be short / and agayne they are suche that he that hath any perceyuyng may sone know what shall make for his purpose / & how to set it furthe. And therfore this shall suffyse as touchynge the qualitie of the person.

¶ If we bere away this for a generall rule (that what maketh for the accuser euer- more the contrary) is sure staye for the de- fender / yf he can proue it / or make it of the more lykelyhood. As Tully in defendynge Milo / layeth to Clodius frendes charges that he had non about hym but chose[n] me[n]. And for to clere Milo he sheweth the con- trary / that he had with hym syngyng lad- des and women seruantes that wayted on his wyfe / whiche maketh it of more likely- hood y^t Clodius went about to slee Milo: than Mylo hym.

¶ The cause that moueth to the mischiefe lyeth in two thynges. In naturall impul- sion / and racionacion.

¶ Natural impulsion is angre / hatred / co[-] uetyse / loue / or suche other affections.

So Simo in Therence / whan he had sayd that Dauus (who[m] he had poynted to wayt vppon his sone Pamphilus) wolde do all that myght lye in hym bothe with hande and fote / rather to dysplease hym: than to [E.v.r] please Pamphilus mynde. And Sosia de- maunded why he wolde do so. Simo made aunswere by raciocinacion / sayenge / doest thou aske that? mary his vngracious and vnhappy mynde is the cause therof.

Oenon in Ouides epistles ioyneth to gy- ther qualitie and naturall impulsion / say- enge. _A iuuene et Cupido credatur reddita vir- go?_ whiche is in Englysshe. Thynke you that she that was caried awaye of a yonge man / and hote in loue / was restored agayn a mayde?

¶ Tulli in the oracion for Milo / amonge other argume[n]tes bryngeth in one against Clodius by naturall impulsion of hatred / shewynge that Clodius had cause to hate Milo fyrst / for he was one of them that la[-] boured for the same Tullyes reuocacyon from exyle / whiche Tulli Clodius malici- ously hated. Agayne that Milo oppressyd many of his furiouse purposes. And final- ly by cause the sayd Milo accused hym and cast hym afore the Senate and people of Rome.

¶ Raciocinacio[n] is that cometh of hope of any commodity / or to eschew any discom- modity. As Tully argueth in his oracion for Milo agaynst Clodius by raciocinaci- on to proue that it was he that layde wayt [E.v.v] for Milo on this maner.

IT is sufficient to proue that this cru- ell and wicked beest had a great cause to slee Milo / yf he wolde brynge his ma- ters that he we[n]t about to passe / and great hope if he were ones gone / nat to be letted in his pretenced malyce.

¶ After raciocinacion foloweth compro- bacion / to shewe that no man els had any cause to go there about / saue he whome we accuse / nor no profite could com to no man thereof: saue to hym.

¶ These are the wayes whereby an oratour shall proue that the persone accused had wyll to the thynge that is layd to his charge.

TO proue that he might do it: ye must go to the circumstance of the cause / as that he had leyser ynough thereto / and place conuenient and strength withall. ¶ Also you shall proue it by signes / whiche are of mer- uaylouse efficacye in this behalfe / where- fore here must be noted that sygnes be ey- ther wordes or dedes that either did go be- fore or els folow the dede. As Tully in his oracion now often alleged argueth against Clodius by signes goynge afore the dede / as that Clodius sayd thre dayes afore Mi- [E.vi.r] lo was slayne: that he shulde nat lyue thre dayes to an ende. And that he went out of the city a lytle afore Milo rode furth with a great companye of stronge and mysche- uous knaues.

¶ Signes folowynge are as yf after the dede was done he fled / or els whan it was layed to his charge: he blusshed or waxed pale / or stutted & coulde nat well speke.

¶ The contrary places (as I sayd afore) long to the defender / saue that in signes he must vse .ii. thinges / absolucion & inuercio[n].

¶ Absolucio[n] is wherby the defendour she- weth that it is laufull for hym to do that what the aduersary bringeth in for a signe of his malice.

¶ Example.

¶ A man is founde couerynge of a dede bo[-] dy / & therupon accused of murder / he may answere that it is laufull to do so for y^e pre- seruacion of his body from rauons & other that wolde deuoure hym / tyll tyme he had warned people to fetche and bury hym.

¶ Inuercion is wherby we shew that the signe whiche is brought agai[n]st vs: maketh for vs. As I wolde nat haue taryed to co- uer hym yf I had done the dede my selfe: but haue fled and shronke a syde into some other way for feare of takynge.

[E.vi.v]

¶ Of the conclusion.

THe co[n]clusion is as I haue said afore in briefe repetynge of the effecte of our reasons / & in mo- uynge the Iudges to our purpose. The ac[-] cuser to punysshe the persone accused. The defender / to moue hym to pity.

¶ Of the state iuridiciall / and the handelynge thereof.

AS state coniectural cometh out of this questyon (who dyd the dede) so whan there is no doubt but that the dede is done / and who dyd it / many tymes controuersy is had / whether it hath ben done laufully or nat. And this state is negociall or iuridiciall / whiche con[-] teyneth the right or wronge of the dede. As in the oracyon of Tully for Milo / the state is iuridiciall / for ope[n] it was that Clo[-] dius was slayn / and that Milo slew hym / but whether he kylled hym laufully or nat: is the controuersy and state of the cause / as I haue afore declared.

¶ The preamble and nar- racion as afore.

[E.vii.r]

THe confirmacion hath certayn places appropred thereto / but here must be marked that state negociall is double / absolute / & assu[m]ptyue.

¶ State negociall absolute is whan the thynge that is in controuersy is absolute- ly defended to be laufully done. As in the oracio[n] of Tulli for Milo / the dede is styfly affirmed to be lawfully done in sleyng Clo[-] dius / seynge that Milo dyd it in his owne defence / for the law permitteth to repell vi- olence violently.

¶ The places of confirmacion in state ab[-] solute are these / nature / law / custome / equi[-] ty or reason / iugeme[n]t / necessity / bargayne or couenant. ¶ Of the whiche places Tul[-] ly in his oracion for Milo bryngeth in the more parte to gyther in a cluster on this maner.

IF reason hath prescrybed this to ler- ned and wise men / and necessity hath dryuen it into barbarous and rude folke / & custome kepeth it among all nacions / and nature hathe planted it in bruite beestes / that euery creature shuld defende hym selfe and saue his lyfe and his body from all vi- olence by any maner of socour / what mea- nes or way so euer it were. you ca[n] nat iuge this dede euyll done / except you wyll iudge [E.vii.v] that whan men mete with theuys or mur- derers / they must either be slayne by the wepons of suche vnthryfty and malicious persones: either els perysshe by your sen- tence gyuen in iugement vpon them.

¶ State assumptiue is whan the defence is feble of it selfe / but yet it may be holpen by some other thynge added to it. And the places longynge to this state are graun- tynge of the faute / remouynge of the faut / or (as we say in our tongue) layeng it from vs to an other / & tanslatynge of the faute.

¶ Grauntyng of the faut is whan the per[-] son accused denieth nat the dede / but yet he desyreth to be forgyuen / & it hath .ii. places mo annexyd to it / purgacion & deprecacio[n].

¶ Purgacion is whan he sayeth he dyd it nat maliciously: but by ignora[n]ce or mishap whiche place Cato vseth ironiously in Sa[-] lust / thus. My minde is that ye haue pyty with you / for they that haue don amysse be but very yonge men / and desyre of honour draue them to it.

¶ Deprecacio[n] is wha[n] we haue non excuse: but we call vpon the Iustices mercy. The handelynge whereof Tulli wryteth in his boke of inuencion thus.

HE that laboreth to be forgyue[n] of his faut / must reherce (yf he can) som be- [E.viii.r] nefytes of his / done afore tyme / and shew that they be farre greater in theyr nature than is the cryme that he hathe commyt- ted / so that (how be it he hath done great- ly amysse) yet the goodnes of his fore me- rites are farre bygger / and so may well op- presse this one faut. Nexte after that it be- houeth hym to haue refuge to the merytes of his elders / yf there be any / and to open them. That don / he must retourne to the place of purgacion / and shewe that he dyd nat the dede for any hate or malyce / but ei- ther by folysshnes / or els by the entisement of som other / or for some prouable cause. And than promise faithfully that this faut shall teche hym to beware fro[m] thens forth / and also that theyr benefytes that forgyue hym shal bynde hym assuredly neuer to do so more / but perpetually to abhorre any suche offence / and with that to shewe some great hope ones to make them a great re- co[m]pence & pleasure therfore agayne. After this let hym (yf he can) declare som kynred betwene the[m] & hym / or frendshyp of his el- ders / & amplifye the greatenes of his ser- uice & good harte towarde them / yf it shall please them to forgiue this faut / & adde the nobility of theym that wolde fayne haue hym delyuered. And than he shall soberly [E.viii.v] declare his owne vertues and suche thyn[-] ges as be in hym perteynyng to honesty & prayse / that he may by these meanes seme rather worthy to be auaunced in honour for his good qualities / than to be punished for his fall.

¶ This done / let hym reherce some other that haue be forgyuen greater fautes than this is. It shall also greatly auayle yf he can shewe that he hathe in tyme afore ben in auctoritie and bare a rule ouer other / in the whiche he was neuer but gentyll and glad to forgyue them that had offended vn[-] derneth hym. And than let hym extenuate his owne faute / and shew that there folo- wed nat so great damage therof / and that but lytle profyte or honesty wyll folowe of his punysshment. And finally than by co- mon places to moue the iudge to mercy & pitie vpon hym.

¶ The aduersary must (as I haue shewed afore) vse for his purpose contrary places.

¶ Some Rhetoriciens put no mo places of deprecacion than only this that is here last reherced of Tulli / that is to do our best to moue the iustice to mercy and pity.

¶ Remocion of the faute is whan we put it from vs and lay it to another.

¶ Example.

[F.i.r]

THe Venecians haue commannded certayne to go in ambassade to En- glande / and thereuppon appointed theym what they shal haue to bere their charges / whiche money assigned: they can nat get of the treasourer: At the daye appoynted they go nat / whereupon they are accused to the Senate. Here they must ley the faut from them to the treasourer / which dispat- ched them nat accordyng / as it was ordey[-] ned that he shulde.

¶ Tra[n]slacion of the faut is / whan he that co[n]fesseth his faut sayeth that he dyd it: mo[-] ued by the indignacion of the maliciouse dede of an other.

¶ Example.