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Isæus, who "carried to a high perfection the combination of luminous recital with perspicuous reasoning.”* But I believe that on the whole Hamilton is (rhetorically) right in recommending that “when the merits are with you, you should separate the fact from the argument ; when against you, blend them.” The same cynical critic of the Senate-house advises you, when you are in the wrong, to use comprehensive and general, because they are equivocal, expressions ; and "to multiply divisions and distinctions without end." He also tells you that “Circumlocution is useful if you wish to deceive, and not otherwise."
Supposing your case not to be an inordinately bad one, and supposing the usual course of Rhetorical disposition of materials to be followed, the next branch of the speech is the “ Confirmation,” the building up of arguments to establish and strengthen your position. This is closely and sometimes inseparately connected with the next branch, which is called the “Refutation, and is specially applied to the demolition or weakening of the proofs which support the case on the other side.
I must, however, in dealing with these topics, carefully remember that I am not addressing myself to Barristers in actual practice, but to students in training for the Bar. And I therefore pass over here much that usually makes up the largest, and that is justly considered the most important, part of both “Confirmation ” and “ Refutation.” I mean the subject of the examination, cross-examination, and re-examination of witnesses, and of the subjection of their testimonies, of their claim to credit, and of their probative values to such comparative Anatomy, and to such more or less comprehensive survey, as will be most favourable to the Advocate's purpose. Quintilian, when he comes in his fifth book to speak of “ Confirmatio” and “Refutatio," says correctly that “Maximus Patronis circa Testimonia sudor
* Jebb's Attic Orators, vol. 2, p. 287.
est.” His own admirable maxims on how to deal with witnesses are well-known; and by far the best part of Whately's Rhetoric consists of the chapters in which he discusses Testimony, the character and demeanour of witnesses, credulity, probability, and similar topics. I would refer also (if I ought to advert to these matters at all) to the excellent practical advice about witnesses, which is contained in Mr. Bliss' Lectures.* Much of course as to the mode and the spirit in which an Advocate should introduce, should marshal, and review his own proofs, and should confront those of his adversary, depends on the form of procedure and on the period of the trial, at which each address is made; whether before or after his own witnesses have been called; whether before or after his adversary's case has been heard ; and on whether he has the last word or not. But while limited in the kind of remarks, which it is proper for me to introduce here as to the actual management of a case at the trial, I am free to observe that the value of skill in making the most of favourable proofs, and in depreciating those which are hostile to you, is not limited to Forensic Rhetoric, but is almost equally effective in the Deliberative Branch, which an English Advocate should never lose sight of; inasmuch as political eminence may always be hoped for by a successful counsel in a free country, where public opinion, formed and expressed in free assemblies, has powerful influence, and where "Eor' év lòyous Ý IIodutéla. A similar remark may be made as to the advantage which the orator often has in addressing a Deliberative assembly, if he can lay before them a clear, graphic, well-ordered narrative of facts, which is “Simplex munditiis," and irresistible in its charms. I will refer, for example, to the renowned description by Demosthenes in the “De Coronâ ” of Philip's advance on Elatea, of the panic at Athens, of the next day's assembly, and of the subsequent proceedings and preparations.
* Lectures on Practice at Nisi Prius, by H. Bliss, Esq., Q.C., London:
Rodworth and Sons,
I can here only give some general hints as to Confirmation and Refutation, drawn chiefly from the same writers, whom I have already been using. Hamilton is unscrupulous and clever as usual. He tells you, “Either overrate and aggravate what is asserted against you, and then you will be able to show that it is not true; or, underrate it, and then admit it in a degree and with an apology.” He repeats this maxim in substance more than once, and it is impossible not to feel that he goes the detestable length of training his young Debater to garble his adversary's words, but to do it discreetly. He says in one place, “In order to attack what others have said, or to defend what you have said, either omit a word, or add one ; or else change one word for another, a little softer, or a little stronger, as may suit your purpose."
The following maxims laid down by him are less objecttionable :- When a strong argument or a pointed answer occurs to you, do not come to it abruptly, or at once. It will have more effect to state first some reasons, which though less forcible, you may assert ought to be satisfactory, and then to bind up the whole as conclusive and irrefragable with your strongest argument." Pre-consider what you mean “should be the finest part of your speech : and, in speaking, connect it with what has incidentally fallen in debate : and, when you come to that premeditated and finest part, hesitate and appear to boggle : catch first at some expression that shall fall short of your idea, and then seem at last to hit upon the true thing. This has always an extraordinary effect, and gives the air of extempore genius to what you say.”
“ If you have no argument to object to, object to a word. Do not assent to anything on appearances, or on slight grounds. Guard every concession you make by some restriction. Let it always be an object to watch the concessions of your adversary, and improve them, and turn them to your advantage.”
“The probability of a thing is in one point of view against īts being true : for men are less likely to have examined into it."
“Men are more apt to amuse themselves by enquiring into the cause of a fact than to dispute it."
“When you cannot convince, a heap of comparisons will dazzle.”
“Do not omit totally, but only throw into the shade the capital circumstances that make against you."
This last is much more shrewd advice than the recommendation of the old Rhetorician (supposed to be Anaximenes) whose treatise is usually published together with that of Aristotle on Rhetoric. The old sophist tells you to pass over what you cannot contradict or parry; and to go at once to safer ground. Many follow this plan from inability to do better; though, as Quintilian says, “ Stultissimè præcipitur quod defendi non possit silentio dissimulandum.” Unless you have very stupid persons to decide your case (and unless in an English Court you can reckon on an unusually imperfect or feeble summing up by the judge), your reticence will be marked; and will give additional weight to the hostile topics. Refer to such topics with an air of candour and boldness; but do it briefly, baldly, and never allow them any prominence. Forensic advocates are not the only Rhetoricians who practice this device. It may often be found in Macaulay's History.
The list of Fallacies used in Debate is a very long one, as may be seen by looking at the Treatise of Aristotle called "Sophistici Elenchi ;” and there are some not mentioned by the old philosopher. I shall point out three or four of the Fallacies that are most extensively and most mischievously practised ; and I hope that it is almost superfluous for me to add that I point them out to our Propositus, not that he may adopt them, but that he may expose and baffle an adversary who has recourse to such unfair weapons.
There are two great classes of Fallacies. One consists of cases, where the same word or phrase is employed without explanation, first in one sense, and then in another. These are called “ Fallaciæ Dictionis."* We must be all painfully aware of how much blundering and misrepresentation are caused by these (often unintentionally) even in common conversation. Whately warns us truly that familiarity with a word or term is a very different thing from having a clear apprehension of its meaning ; and he cites appropriately the weighty remark of Lord Bacon, “Men imagine that their minds have the command of Language; but it often happens that Language bears rule over their minds.” The best discipline against this mischief is that scientific study of our English tongue, of its etymology and syntax, as well as of its literature; and that habit of exercising ourselves in the composition of pure, accurate, and perspicuous English, which I have so often and so earnestly recommended. Logic will, no doubt, well repay in this matter all the toil which its students devote to it.
The same remedial studies will aid us from falling unconsciously into any of the other great class of Fallacies, and in discomfiting an opponent when he can be detected in them. These are commonly called “ Fallaciæ extra Dictionem.” The first that I will notice is the “ Petitio Principii,” or, in plain English, “Begging the Question ;” sometimes also called “ Arguing in a Circle.” To designate it scientifically and fully, I should say that it occurs when an Advocate assumes from his premiss, that which is identical with the conclusion to be proved, but when he conceals the identity from his hearers. It might be supposed that Fallacies of this kind must be so transparent as to be ineffective. But this is far from being the case. Indeed, there is no other
* See Grote's Aristotle, vol. ii., p. 81. See and read carefully the chapter on Fallacies in Whately's Logic (not his Rhetoric,) Book 3, especially sectio. 10. See also John Stuart Mill's Logic, chapter on Fallacier,