CHAPTER XVI.. Of Proofs Inartificial.

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.