¶ We may also begyn at the nature of thetyme that we speke in / or at the nature ofthe place / or at any other circumstaunce orthynge incident. As Liuius in the .ix. bokeof his fourthe decade agaynste the feestesthat the Romaynes kept in the honour ofthe ydolyssh god Bacchus / begynneth hisoracion at prayenge on this wyse.THe solempne makynge of prayersvnto the goddes was neuer so aptenor yet so necessary in any oracion as it isin this / whiche shall shew and admonyssheyou that they be very and ryght goddes /whom our elders haue ordeyned to be wor[-]shypped / adoured / and prayed vnto.¶ Briefly in all prefaces belongynge tooracions deliberatiues the office of the per[-]sone: and the necessytye or commodytyeof the matter that we treate of are consy-dered.¶ The narracion.IN oraciōs deliberatiues we vse veryseldome narracions / but for the moreparte in stede of them we make a brief pro[-]posicion cōteinyng the sūme of our entent.As now adayes nothing is so necessary asto labour to brynge these dissencions thatbe in the chyrche to a perfecte vnity & con-corde / that accordyng to Christes sayng[e]s /there be but one shepeherde and one folde.Neuertheles we vse somtyme briefenarra[-]ciions/ whā ytsom thyng hath ben don allredy of ytthat we giue our coūcell vpō / asin the abouesayd oracion ytTuli made forPōpey / where he maketh this narracion.GReat & very perillous warre is madebothe agaynst your tributours / andalso thē that bothe cōfederate with you: &by you called your felowes / whiche warreis moued by two ryght myghty kynges /Mithridates & Tigranes. &c. ¶ After thismaner is a narracion in the oraciō ytHa-niball made to Scipio / & is cōteined in thex. boke of ye.iii. decade of Liui[us] / right pro-per & elegant / without any preface begyn-nyng his narracion thus.hand¶ If it hathben ordeyned by my fortune and destenythat I whiche first of all yeCarthaginorsbegan warre with the Romayns / & whichhaue almoost had the victory so often inmyne hādes / shuld now com of myne ownemynde to aske peace. I am glad that for-tune hathe prepared that I shulde aske itof you specially. And amonge all your no-blelandesthis shall nat be one of the leestthat Haniball gaue ouer to you / to whomthe goddes had gyuen afore the vyctoryeouer so many capitains of the Romayns /& that it was your lucke to make an endeof this warre / in the which the Romaynshaue had farre mo euyll chaunces thā weof Carthagene. And whether it were mydesteny or chaūce ytought me this skorn-full shame. I which began the warre whāyour father was Consull / and after ioynedbataile with hym whan he was made Ca-pitayne of the Romayns army / must nowcome vnarmed to his son to aske peace ofhym. It had ben best for bothe parties yfit had pleased the goddes to haue sent ourfore faders that mynde / that you of Romewolde haue ben content with the Empyreof Italy / and we Carthaginoys with Af-frike. For neither Sicil nor Sardinia canbe any sufficēt amendes to either of vs forso many naueis / so many armies / so manyand so excellent capitaines lost in our war-res betwene vs / but thynges passed / maysoner be blamed than mended. We of Car-thagene (as touchynge our parte) haue socouetyd other dominions / that at lengthewe had busines ynough to defende our pos[-]sessions. Nor the warre hath nat ben onlywith you in Italy or with vs onely in Af-fryke: but at the pleasure of fortune / som-tyme here and som there / in so moche thatyou my maisters of Rome haue sene yestā[-]derdes and armes of your enemies hardeat your walles and gates of the citie. Andwe on the other syde haue herde the noyseout of your campe into our citie.¶ After the narracion ought to foloweimmediately the proposicion of our coun-cell or aduise. As after the narraciō of Ha-niball afore reherced / foloweth the propo-sicion of his purpose thus.THat thynge is now entreated whilefortune is fauourable vnto you / thatwe ought moost to abhorre / and you sure-ly ought aboue all thynges to desyre / thatis to haue peace. And it is most for the pro[-]fyte of vs two / whiche haue the mater inhandelyng that peace be had. And sure webe / that what so euer we agree vppon / ourcities wyll ratifie the same.¶ Next foloweth the confirmacion of thothynges ytwe entende to persuade / whichmust be fet out of the places of honesty / pro[-]fite / easines / or difficulty. As if we will per[-]suade any thynge to be done / we shall shewthat it is nat only honest & laudable: but al[-]so profytable & easy ynough to perfourme.Or if we can nat chose but graūt that it isharde / yet we shall shew that it is so honesta dede / so worthy praise / & besydes so greatcōmodity wyll come therof / that the hard-nes ought in no wise to fere vs: but ratherbe as an instigacion to take the thynge onhande / remembrynge the greke prouerbe.Scisnola ta nala/ that is to say / all excellent& cōmēdable thyng[e]s be hard & of difficulty.¶ In honesty are cōprehēded all vertues /as wysdō / iustice / due loue to god / & to ourparentes / liberality / pity / constāce / tempe-rance. And therfore he that wyll for the cō[-]fyrmyng of his purpose declare & proue ytit is honest & cōmendable ythe entēdeth topersuade hym: behoueth to haue perfyteknowlege of yenatures of vertues. And al[-]so to haue in redy remembraūce sentencesbothe of scripture & of philosophy / as ora-tours & poetes / & besyde these / examples ofhistoryes / forgarnyssshyngof his maters.¶ As cōcernynge the place of vtilitie / wemust in all causes loke if we may haue anyargumētes wherby we may p[ro]ue that ourcoūcell is of suche necessity / that it can natbe chosen but they must nedes folow it / fortho argumētes be of farre greater strēgththan they ytdo but onely proue the vtilityof yemater. But if we cā haue no suche ne-cessary reasōs / thā we must serche out ar-gumētes to p[ro]ue our mynde to be p[ro]fitableby circūstances of the cause. In like manerto persuade a thyng by the easines therof /or dissuade it by the difficulty of the thing /we must haue respect to possibility or īpossi[-]bilite / for these p[ro]ues are of strenger naturethā the other / & he ytwyll shew yta thyngmay be done easely: must presuppose yepos[-]sibilite therof. As he on the other side thatwyll p[er]suade a thyng nat to be done / yf heshew & manifest ytit is impossible / arguethmore strōgely thā if he could but only p[ro]uedifficulty in it / for as I sayd / many thyng[e]sof difficulty yet may be the rather to be ta-ken on hande / that they may get thē thatacheue them the greater fame and prayse.And these argumentes be fet out of the cir[-]cūstances of yecause / ytis to say / the time /the place / the doers / the thynge it selfe / themeanes whereby it shulde be done / the cau[-]ses wherefore it shulde be done or nat / thehelpes or impedimētes that may be ther-in. In this purpose examples of historiesare of great efficacy.¶ The confutacion is the soilynge and re-fellyng of other mēnes sayeng[e]s that haueor might be brought against our purpose /wherefore it consisteth in places contraryto the places of confirmaciō / as in p[ro]uyngthe sayenges of the contrary part / neitherto be honest nor profitable / nor easy to per-forme / or els vtterly impossible.¶ The conclusion standeth in two thyn-ges / thatis isto say / a briefe and compen-diouse repetyng of all our reasons that wehauebronghtfor vs afore / and in mouyngof affections. And so dothe Ulysses con-clude his oracion in the .xiii. boke of Oui-des metamorphosy.¶ Of the thyrde kynde of ora-cions / called Iudiciall.ORacions iudiciall be that longeto controuersies in the lawe andplees / which kynde of oracion inolde tyme longed onely to Iudges & menof law / but now for the more parte it is ne-glecte of them / though there be nothyngemore necessarye to quicken them in craftyand wyse handelynge of theyr maters.¶ In these oracions the fyrste is to fyndeout the state of the cause / whiche is a shortproposicion / conteynynge the hole effect ofall the controuersies. As in the oracion ofTulli / made for Milo / of yewhich I mademencion in the begynnynge of my boke.The state of the cause is this. Milo sleweClodius lawfully / whiche thynge his ad-uersaries denyed / and yf Tully can proueit / the plee is wonne.¶ Here must be borne away that there bethre maner of states in suche oracions.¶ The fyrst is called coniecturall. The se-conde / legitime. The thirde / iudiciale / andeuery of these hathe his owne proper pla-ces to fet out argumentes of them / where-fore they shall be spoken of seuerally. Andfyrste we wyll treate of state coniecturall /whiche is vsed whan we be certayne thatthe dede is done / but we be ignorant whodyd it / and yet by certayne coniectures wehaue one suspecte / that of very lykelyhodeit shulde be he that hathe commytted thecryme. And therfore this state is called con[-]iecturall / bicause we haue no manifest p[ro]fe /but all onely great lykelyhodes / or as theRhetoriciens call them / coniectures.¶ Example.THere was a great contencion in theGrekes army afore Troye betweneUlisses and Aiax / after the dethe of Achil-les / which of them shulde haue his armouras nexte to the sayd Achilles in valiaunt-nes. In whiche controuersye whan theGrekes had Iuged the sayd armour vntoUlisses / Aiax for very great disdayne fellout of his mynde / & shortly after in a wodenygh to the hooste / after he had knowen(whan he cam agayne to hym selfe) whatfolyssh prankes he had played in the tymeof his phrenesy / for sorow & shame he slewehym selfe. Sone vpon this dede cam Ulis-ses by / whiche seynge Aiax thrust thrughewith a swerde: cam to hym / and as he wasabout to pull out the swerd / the frendes ofAiax chaūced to com the same way / whichseynge theyr frende deed / and his olde ene-my pullyng out a swerde of his body / theyaccused hym of murder.¶ In very dede here was no profe. For oftruthe Ulisses was nat gylty in the cause.Neuer theles the enuye that was betweneAiax and hym: made the mater to be nat alytle suspect / specially for ythe was foūdethere with the sayd Aiax alone / whereforethe state of the plee was coniecturall / whe[-]ther Ulisses slew Aiax or nat.¶ The preface.THe preface is here euyn as it is inother oracions. For we begyn accor[-]dyng to the nature of the cause ytwe haueon hāde / either in blamyng our aduersary /or els mouynge the herers to haue pity onour client. Or els we begyn at our owne p[er]-sone / or at the prayse of the Iuge. &c[etera].¶ The narracion.THe narraciō or tale is the shewyngeof the dede in maner of an historye /wherin yeaccuser must craftly entermēglemany suspicions which shall seme to makehis mater p[ro]uable. As Tulli in his oracionfor Milo / where in his narracion he inten-deth by certayn cōiectures to shew ytClo[-]dius laye in waite for Milo / he in his saydnarracion handeleth that place thus.¶ In the meane season whā Clodius hadknowlege that Milo had a lawfull &neces[-]ryiourney to the city of Lauine ye.xiii. dayafore the kalendes of Marche / to poyntewho shuld be hed preest there / which thinglonged to Milo because he was dictatourof that towne: Clodius sodaynely the dayafore departed out of Rome to set vpponMilo in a lordeshyp of his owne / as afterwas well perceyued. And suche haste hemade to be goyng that were as the peoplewere gadered yesame day for mat[er]s wher-in also he had great adoo hym selfe / & verynecessarye it had ben for hym to haue benthere / yet this nat withstandyng / all otherthynges aparte: he went his way / whicheyou may be sure he wold neuer haue done /saue onely that he had fully determined topreuent a tyme and place conuenient forhis malicius entēt afore Miloes comyng.¶ In this pece of Tullies narracion areentermengled fyrst that Clodius knew ofMiloes goynge / whiche maketh the ma-ter suspecte ytClodius went afore to metewith him / for this was well knowen aforethat Clodi[us] bare Milo great grudge andmalice. Next is shewed the place where asClodius met Milo / whiche also gyueth agreat suspicion / for it was nygh Clodiusplace / where he myght sone take socour / &the tother was in leest assuraūce. Thyrdlythat he departed out of the city / what tymeit 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 selfesaieth) in no wise haue ben absent at suchea busy tyme / onles it had ben for som greatpurpose / and what other shulde it seme thāto slee Milo. As surely euident it was thatthey buckled to gyther / and this was wellknowen that Milo had a necessary causeto go furth of Rome at that tyme. Contra[-]ryly in Clodius coulde be perceyued nonother occasion to departe than oute of thecitie: but of lykelyhood to lye in waytefor Milo.¶ The proposicion.OUt of the narracion must be ga-deryd a briefe sentence / whereinshall stande the hole pithe of thecause / for Rhetoriciens put incontinent af[-]ter the narracion diuision / which is a partof contencion / & dothe bryefly shew wherinthe controuersy doth stande / or what thin-ges shall be spoken of in the oracion. Thisdiuision is deuyded into seiunction and di-stribucion.¶ Seiunction is whan we shew whereinour aduersaries and we agree / and what itis / whereupon we stryue. As they that ple-dyd Clodius cause agaynst Milo / myghton this maner haue vsed seiunction. ThatMilo slew Clodius: our aduersaries cannat denaye / but whether he myght so dolawfully or nat / is our controuersy. Distri-bucion is the proposicion wherein we de-clare of what thynges we wyll speke / ofwhiche yf we propose how many they be /it is called enumeracion / but yf we do natexpresse the nombre / it is called exposicion.¶ Example of bothe is had in the oracionthat Tully made to the people that Pom-peyus myght be made chiefe capitayne ofthe 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 spekeof the nature & kynde of this warre /and after that of the greatnes thereof / andthan 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 thusas foloweth.TRuely this is myne opinion / that hewhiche shall be a gouernour of anhoost / 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 aman of his handes. The thyrde that he bea man of suche auctority: that his dignitymay cause his souldiers to haue hym in re-uerence and awe. The fourth is that he befortunate and lucky in all thynges that hegoeth about.¶ Tully in the oracion for Milo / propo-seth all onely shewynge wherin the contro[-]uersy of the plee dyd stande on this maneras foloweth.IS there than any thynge els ytmuste tryedand iudged in this cause sauethis: whether of them bothe beganne thefraye and entended to murder the tother?No surely. So that yf it can be foundenthat 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 waytefor to slee Milo / and so was the sercher ofhis owne dethe / and that what Milo dydit was but to defende hym selfe frome thetreason of his enemy and the sauegarde ofhis lyfe: that than he may be delyueredand quyt.¶ Of confirmacion.THe confirmacion of the accu-ser is fetched out of these pla-ces / wyll / and power. For thesetwo thynges wyll cause the persone thatis accused to be greatly suspect that he hadwyll to do the thyng that he is accused of /and that he myght well ynoughe bryngeit to passe.¶ To proue that he had wyll therto: youmust go to .ii. places. The one is yequaliteof the persone / & the other is the cause thatmeuyd him to the dede. The qualitie of theperson is thus handled. First to loke whatis 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 inmen to make them gyue names accordingto the maners of euery person. Than nextto behold his contrey. So Tulli in his ora[-]cion made for Lucius Flaccus / to unprouethe witnes that was brought against himby Grekes / layeth vnto them the lightnesof theyr contrey. This (sayeth Tulli) do Isay of the hole nacion of Grekes. I graūtto them that they haue good lernyng / andthe knowlege of many sciences. Nor I de-nye nat but that they haue a pleasant andmarueylouse swete speche. They are alsopeople of high and excellent quicke wyt / &thereto they be very facundiouse. These &suche other qualities wherein they boostethē selfe greatly: I wyll nat repyne agaīstit that they bere the maistry therein. Butas concernyng equitie and good consciēce /requisite / in berynge of recorde / or gyuyngof any wytnes / & also as touchynge faith-fulnes of worde and promyse: truely thisnacion neuer obserued this property / nei-ther they knewe nat what is the strength /auctoritye / and weight therof.¶ So to Englysshmen is attributed sūp-tuousnes in meates & drinkes. To Frenchmen / pryde / & delyte in new fantasyes. ToFlemmynges and Almaynes / great dryn-kyng / & yet inuētife wittes. To Britayns /Gascoignes / and Polones / larrecine. ToSpanierdes / agilitye. To ytaliens / hyghwyt and moche subtilty. To Scottes / bold[-]nes / to Irissh men / hastines. To Boemesvaliauntnes and tenacite of opinions. &c.¶ After that to loke on his kynred / as yfhis father or mother or other kynne wereof yll disposicion / for as the tree is: suchefruite it bereth.¶ On this wyse dothe Phillis entwyteDemophon / that his father Theseus vn-curteysly and trayterously lefte his loueAriadna alone in the desert yle of Naxus /& contrary to his promise stale from her bynyght / addyngeHeredempatriaperfide frau-dis agis. That is to saye / vntrew and falseforsworne man / thou playest kyndely thefathers heyre / in deceytable begylynge ofthy true louer.¶ After that we must loke vppon the sex /whether it be man or woman that we ac-cuse / to se yf any argumēt cā be deduct outof it to our purpose. As in men is noted au[-]dacity / women be comonly tymerouse.Than nexte / the age of the persone. As inTherence Simo speketh of his son Pam-philus / sayeth vnto his man called Sosia /how couldest thou know his condicions ornature afore / whyle his age and feare / andhis maister dyd let it to be knowen.¶ Hipermestra in Ouides epistels ioineththese .ii. places of sex & age to gyther thus.¶ I am a woman & a yong maiden / milde& gentyll / both by nature & yeres. My softhandes are nat apte to fiers batayles.¶ After these folow strēgth of body / or agi[-]lity / & quicknes of wyt / out of whiche maybe broght many reasōs 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 menabout hym) by chaunce at that tyme hadin his company certayne Musiciens andmaydens that wayted on his wyfe / whomhe had syttynge with hym in his wagen.Contraryly Clodius that was neuer wōtafore but to ryde in a wagen & to haue hiswyfe with him: at that tyme rode furth onhorsebacke. And where as afore he was al-wayes accustomed to haue knaues & que-nes in his company: he had than non buttall men with hym / & (as who shulde say)men piked out for the nones. ¶ To this isadded forme / as to assay yf we can haue a-ny argument to our purpose out of the per[-]sones face or countenance / & so doth Tullyargue in his oraciō agaynst Piso / sayeng.¶ Seest thou nat now thou beest? doest y[o]unat now p[er]ceyue what is mennes cōplaynton thy visage? there is nō that cōplaineththat I wote nat what Surrien & of theyrflocke 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 hathnat deceiued vs nor hery cheke balles / norrotten & fylthy tethe / thyne iyes / thy bro-wes / forhed / & hole coūtenaūce / which in amaner doth manifest mēnes cōdiciōs & na[-]ture it hath deceiued vs. ¶ This done / wemust consyder how he hath bē brought vpy[at] we accuse / among whom he hath lyued / &whereby / how he gouerneth his houshold /& assay if we cā pyke out of these ought forour purpose. Also of what state he is of / freor bond / riche or pore / beryng office or nat /a man of good name / or otherwise / wherinhe deliteth moost / which places do expressemānes lyuyng / & by his lyuyng: his will &mynde / as I wold declare more fully / sauethat in introductions men must labour tobe short / and agayne they are suche that hethat hath any perceyuyng may sone knowwhat shall make for his purpose / & how toset it furthe. And therfore this shall suffyseas 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 themore lykelyhood. As Tully in defendyngeMilo / layeth to Clodius frendes chargesthat he had non about hym but chosē mē.And for to clere Milo he sheweth the con-trary / that he had with hym syngyng lad-des and women seruantes that wayted onhis wyfe / whiche maketh it of more likely-hood ytClodius went about to slee Milo:than Mylo hym.¶ The cause that moueth to the mischiefelyeth 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 saydthat Dauus (whō he had poynted to waytvppon his sone Pamphilus) wolde do allthat myght lye in hym bothe with handeand fote / rather to dysplease hym: than toplease Pamphilus mynde. And Sosia de-maunded why he wolde do so. Simo madeaunswere by raciocinacion / sayenge / doestthou aske that? mary his vngracious andvnhappy 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 youthat she that was caried awaye of a yongeman / and hote in loue / was restored agayna mayde?¶ Tulli in the oracion for Milo / amongeother argumētes bryngeth in one againstClodius by naturall impulsion of hatred /shewynge that Clodius had cause to hateMilo fyrst / for he was one of them that la[-]boured for the same Tullyes reuocacyonfrom exyle / whiche Tulli Clodius malici-ously hated. Agayne that Milo oppressydmany of his furiouse purposes. And final-ly by cause the sayd Milo accused hym andcast hym afore the Senate and people ofRome.¶ Raciocinaciō is that cometh of hope ofany commodity / or to eschew any discom-modity. As Tully argueth in his oracionfor Milo agaynst Clodius by raciocinaci-on to proue that it was he that layde waytfor Milo on this maner.IT is sufficient to proue that this cru-ell and wicked beest had a great causeto slee Milo / yf he wolde brynge his ma-ters that he wēt about to passe / and greathope if he were ones gone / nat to be lettedin his pretenced malyce.¶ After raciocinacion foloweth compro-bacion / to shewe that no man els had anycause to go there about / saue he whome weaccuse / nor no profite could com to no manthereof: saue to hym.¶ These are the wayes whereby anoratour shall proue that the personeaccused had wyll to the thyngethat is layd to his charge.TO proue that he might do it: yemust go to the circumstance ofthe cause / as that he had leyserynough thereto / and place conuenient andstrength withall.¶ Also youshall 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 hisoracion now often alleged argueth againstClodius by signes goynge afore the dede /as that Clodius sayd thre dayes afore Mi-lo was slayne: that he shulde nat lyue thredayes to an ende. And that he went out ofthe city a lytle afore Milo rode furth witha great companye of stronge and mysche-uous knaues.¶ Signes folowynge are as yf after thedede was done he fled / or els whan it waslayed to his charge: he blusshed or waxedpale / or stutted & coulde nat well speke.¶ The contrary places (as I sayd afore)long to the defender / saue that in signes hemust vse .ii. thinges / absolucion & inuerciō.¶ Absoluciō is wherby the defendour she-weth that it is laufull for hym to do thatwhat the aduersary bringeth in for a signeof his malice.¶ Example.¶ A man is founde couerynge of a dede bo[-]dy / & therupon accused of murder / he mayanswere that it is laufull to do so for yepre-seruacion of his body from rauons & otherthat wolde deuoure hym / tyll tyme he hadwarned people to fetche and bury hym.¶ Inuercion is wherby we shew that thesigne whiche is brought agaīst vs: makethfor 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 someother way for feare of takynge.¶ Of the conclusion.THe cōclusion is as I haue saidafore in briefe repetynge of theeffecte of our reasons / & in mo-uynge the Iudges to our purpose. The ac[-]cuser to punysshe the persone accused. Thedefender / to moue hym to pity.¶ Of the state iuridiciall / andthe handelynge thereof.AS state coniectural cometh outof this questyon (who dyd thedede) so whan there is no doubtbut that the dede is done / and who dyd it /many tymes controuersy is had / whetherit hath ben done laufully or nat. And thisstate is negociall or iuridiciall / whiche con[-]teyneth the right or wronge of the dede.As in the oracyon of Tully for Milo / thestate is iuridiciall / for opē 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.THe confirmacion hath certaynplaces appropred thereto / buthere must be marked that statenegociall is double / absolute / & assūptyue.¶ State negociall absolute is whan thethynge that is in controuersy is absolute-ly defended to be laufully done. As in theoraciō of Tulli for Milo / the dede is styflyaffirmed to be lawfully done in sleyng Clo[-]dius / seynge that Milo dyd it in his ownedefence / 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 / iugemēt / necessity / bargayneor couenant. ¶ Of the whiche places Tul[-]ly in his oracion for Milo bryngeth in themore parte to gyther in a cluster on thismaner.IF reason hath prescrybed this to ler-ned and wise men / and necessity hathdryuen it into barbarous and rude folke / &custome kepeth it among all nacions / andnature hathe planted it in bruite beestes /that euery creature shuld defende hym selfeand 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 cā nat iugethis dede euyll done / except you wyll iudgethat whan men mete with theuys or mur-derers / they must either be slayne by thewepons of suche vnthryfty and maliciouspersones: either els perysshe by your sen-tence gyuen in iugement vpon them.¶ State assumptiue is whan the defenceis feble of it selfe / but yet it may be holpenby some other thynge added to it. And theplaces longynge to this state are graun-tynge of the faute / remouynge of the faut /or (as we say in our tongue) layeng it fromvs to an other / &tanslatyngeof the faute.¶ Grauntyng of the faut is whan the per[-]son accused denieth nat the dede / but yet hedesyreth to be forgyuen / & it hath .ii. placesmo annexyd to it / purgacion & deprecaciō.¶ Purgacion is whan he sayeth he dyd itnat maliciously: but by ignorāce or mishapwhiche place Cato vseth ironiously in Sa[-]lust / thus. My minde is that ye haue pytywith you / for they that haue don amysse bebut very yonge men / and desyre of honourdraue them to it.¶ Deprecaciō is whā we haue non excuse:but we call vpon the Iustices mercy. Thehandelynge whereof Tulli wryteth in hisboke of inuencion thus.HE that laboreth to be forgyuē of hisfaut / must reherce (yf he can) som be-nefytes of his / done afore tyme / and shewthat they be farre greater in theyr naturethan 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 merytesof his elders / yf there be any / and to openthem. That don / he must retourne to theplace of purgacion / and shewe that he dydnat the dede for any hate or malyce / but ei-ther by folysshnes / or els by the entisementof som other / or for some prouable cause.And than promise faithfully that this fautshall teche hym to beware frō thens forth /and also that theyr benefytes that forgyuehym shal bynde hym assuredly neuer to doso more / but perpetually to abhorre anysuche offence / and with that to shewe somegreat hope ones to make them a great re-cōpence & pleasure therfore agayne. Afterthis let hym (yf he can) declare som kynredbetwene thē & hym / or frendshyp of his el-ders / & amplifye the greatenes of his ser-uice & good harte towarde them / yf it shallplease them to forgiue this faut / & adde thenobility of theym that wolde fayne hauehym delyuered. And than he shall soberlydeclare his owne vertues and suche thyn[-]ges as be in hym perteynyng to honesty &prayse / that he may by these meanes semerather worthy to be auaunced in honourfor his good qualities / than to be punishedfor his fall.¶ This done / let hym reherce some otherthat haue be forgyuen greater fautes thanthis is. It shall also greatly auayle yf hecan shewe that he hathe in tyme afore benin auctoritie and bare a rule ouer other / inthe whiche he was neuer but gentyll andglad to forgyue them that had offended vn[-]derneth hym. And than let hym extenuatehis owne faute / and shew that there folo-wed nat so great damage therof / and thatbut lytle profyte or honesty wyll folowe ofhis punysshment. And finally than by co-mon places to moue the iudge to mercy &pitie vpon hym.¶ The aduersary must (as I haue shewedafore) vse for his purpose contrary places.¶ Some Rhetoriciens put no mo placesof deprecacion than only this that is herelast reherced of Tulli / that is to do our bestto moue the iustice to mercy and pity.¶ Remocion of the faute is whan we putit from vs and lay it to another.¶ Example.THe Venecians hauecommanndedcertayne to go in ambassade to En-glande / and thereuppon appointed theymwhat they shal haue to bere their charges /whiche money assigned: they can nat getof the treasourer: At the daye appoyntedthey go nat / whereupon they are accusedto the Senate. Here they must ley the fautfrom them to the treasourer / which dispat-ched them nat accordyng / as it was ordey[-]ned that he shulde.¶ Trāslacion of the faut is / whan he thatcōfesseth his faut sayeth that he dyd it: mo[-]ued by the indignacion of the maliciousedede of an other.¶ Example.KYngeAgamennon/ which was chiefcapitayne of the Grekes at the siegeof Troye / whan he cam home was slayneof Egist[us] by the treason of Clitenestra hisowne wyfe / which murder his son Orestesseynge / whan he cam to mannes state / re-uenged his fathers dethe on his mother / &slew her / whereupon he was accused. HereOrestes can nat deny but he slew his mo-ther: But he layeth for hym that his mo-thers abhominable iniury cōstrayned himthereto / bycause she slew his father.And this is the handelynge of confirmaci-on in state assumptiue.¶ The conclusions in these oracions arelyke to the conclusions of other.¶ Of state legitime / andthe handelyng therof.STate legitime is whan the con-trouersy standeth in definicion orcontrary lawes / or doutfull wry-tynges / or raciocinacion / or translacion.¶ Of definicion.DEfinicion (as Tully wryteth) iswhan in any wrytynge is someworde put / yesignificaciō wher-of requireth exposicion.¶ Example.ALawe may be made that suche asforsake a shyppe in tyme of tempestshulde lese theyr ryght ytthey haue / eitherin the shyppe or in any goodes within thesame vessell / & that they shal haue the shyp& the goodes that abyde styll in her.¶ It chaūced .ii. men to be in a lytle cray-er / of the whiche vessell the one man wasboth owner and gouernour / and the other:possessour of the goodes. And as they werein the mayne see / they espied one that wasswymmynge in the see / and as well as hecoulde holdyng vp his handes to them forsocour / wherupon they (beyng moued withpitie) made towarde hym / & toke hym vp.Within a lytle after arose a greate tempestvpon them / and put them in suche ieopar-dy that the owner of the shyp (which wasalso gouernour) lepte out of the shyp intothe shyp bote / and with the rope that tyedthe bote to the shyp: he gouerned the shypas well as he coulde. The marchant thatwas within the shyp / for greate dispayre ofthe losse of his goodes / wyllyng to slee himselfe: threst hym selfe in w[i]t[h] his owne sword /but as it chaunced the wounde was ney-ther mortall nor very greuouse / but nat-withstādyng for that tyme he was vnableto do any good in helpyng the shyp againstthe impetuousnes of yestorme. The thyrdman (whiche nat longe afore had sufferedshyp wracke) gate hym to the sterne / andholpe the vessell the best that laye in hym.At lengthe the storme seaced / and the shypcame safe into the hauen / bote & all. He ytwas hurt (by helpe of chirurgiens) recoue[-]red anon. Now euery of these thre chalēgethe shyp & good[e]s as his owne. Here eueryman layeth for hym the lawe aboue reher-ced / and all theyr controuersy lyeth in theexpoundynge of thre wordes / abydynge inthe shyp / and forsakynge the shyp / & whatwe shal in suche case call the shyp / whetherthe bote as part of the shyp: or els the shypit selfe alone.¶ The handelynge hereof is. Fyrst in fewwordes and playne to declare the significa[-]cion of the worde to our purpose / and aftersuche maner as may seme resonable to theaudience. Nexte / after suche exposicion todeclare and proue the sayd exposicion true /with as many argumentes as we can.Thyrdely to ioyne our dede with the expo-sicion / & to shew that we onely dyd obseruethe very entent of the lawe. Than to refellthe exposicion of our aduersaries / & to shewthat their exposicion is contrary to reasonand equitie / and that no wyse man wyll sotake the law as they expounde it / and thatthe exposicion is neither honest nor profy-table / and to conster theyr exposicion withoures / and to shew that oures conteyneththe veritie / and theyrs is falce. Oures ho-nest / reasonable / & profitable: Theyrs clenecontrarye. And than serche out lyke exam-ples / either of greater maters or of lesse / orels of egall maters / and to manifest by thēthat our mynde is the very truthe.¶ Contrary lawes are where the tone se-meth euidently to contrarye the other. Asyf a law were that he whō his father hathforsaken for his sōne / shall in no wyse haueany porcion of his fathers goodes. And another law / that who so euer in tyme of tem[-]pest abydeth in the shyp: shall haue yeshypand goodes. Than pose that one whichewas of his father so abiecte and denyed forhis chylde: was in a shyp of his fathers intyme of sore wether / & whan all other forfeare of lesynge them selfe forsoke the shyp& gate them into the bote: he onely abode /and by chaunce was safe brought into thehauen / wherupon he chalengeth the vessellfor his / where as the party defendant wylllay against hym that he is abdicate or for-saken of his father / and so can nat by thelaw haue any parte of his goodes.Here must he say agayn for hym that thislaw alleged doth all only priuate frō theyrfathers goodes suche as be abdicate & yetwolde chalenge a part as his children / butythe doth nat so / but requireth to haue theshyp / nat as a son to his father: but as anyother straunger myght / seyng the law gy-ueth him the shyp ytabideth in her in timeof necessity. And so the handelynge of thisstate / either to deny one of ytlawes & shewthat it hath ben afore anulled / or els to ex-pounde it after the sence that is mete toour purpose.¶ Doubtfull writynge is where either themynde of the author semeth to be contraryto that that is wryten / which som call wry[-]tynge & sentence / or els it is whan the wor[-]des may be expounded dyuers wayes.¶ Example of the fyrst.MEn say it is a law in Caleys that nostraunger may go vppon the townewalles on payne of dethe. Now than posethat in tyme of warre the towne beyngeharde besieged / an alien dwellynge in thetowne getteth hym to the walles amongethe soudiers / & doeth more good than anyone man agayn. Now after the siege endedhe is accused for transgressyng of the law /which in wordes is euidently against him.But here the defendaunt must declare thewryters mynde by circumstaunces / whatstraunger he dyd forbyd / and what tyme /and after what maner / and in what intenthe wolde nat haue any straunger to comeon the walles / & in what intent his myndemight be vnderstanden to suffre an alien togo vpon the walles. And here must the ef-fect of the straūgers wyll be declared / thathe went vp to defend yetowne to put backtheir enemies. And therto he must say thatthe maker was nat so vndiscrete & vnreaso[-]nable that he wolde haue no maner of ex-cepcion which shuld be to the welth / p[ro]fite /or preseruacion of the towne. For he thatwyll nat haue yelaw to be vnderstandē ac[-]cordyng to equitie / good maner / & nature /entendeth to proue the maker therof eitheran vniust man / or folyssh or enuiouse.¶ The accuser contraryly shall praise themaker of the law for his great wisdom / forhis playne writyng without any maner ofambiguity / ytno straūger shulde p[re]sume togo vpon the walles / & reherce yelaw wordfor worde / & thā shew som reasonable causethat mouyd the maker of the law that hewolde vtterly that no straunger shulde as-cende the walles. &c. Exāple of the secōd.AMan in his testamēt gyueth to twoyonge doughters that he hathe twohūdred shepe / to be delyuered at the day oftheyr maryage / on this maner.handI wyllthat myne executoures shall gyue to mydoughters at the tyme of theyr maryageeuery of theym an hundred shepe / suche asthey wyll. At the tyme of maryage they de[-]maunde theyr cattell / whiche the execu-tours deliuer nat of suche sort as the may-dēs wold / wherupō the cōtrouersy ariseth.For the executours say they are bounde todelyuer to euery of them an hundred shepe /suche as they that be the executours will.Now here standeth the dout / to whom weshall referre this wordethey/ to the dought-ters / or to the executours.The maydens say nay thereto / but that itwas theyr fathers mynde that they shuldehaue euery of theym an .C. shepe / suche asthey that be the doughters wyll.¶ The handelyng of doutfull wrytyng isto shew yf it be possible that it is nat wrytēdoutfully by cause it is the comon maner totake it after as we saye / & that it may sonebe knowen by suche wordes as partely gobefore that clause & p[ar]tly folow / & that therebe few wordes / but if they be considered soalone / they may anon be taken doubtfully.And first we shal shew if we can ytit is natdoubtfully wryten / for there is no reasona[-]ble mā: but he wyll take it as we say. Thāshal we declare by that that goeth afore / &foloweth / that it is clerly euin as we say / &that yf we consider the wordes of thē selfethey wyll seme to be of ambiguity / but se-ynge they may by the rest of the wrytyngebe euident ynough / they ought nat to be ta[-]ken as doubtfull. And than shew that yf ithad ben his minde that made the writyngto haue it taken as the aduersarye sayeth:he neded nat to haue wrytē any suche wor[-]des. As in the example now put / the may-dens may say that yf it had ben theyr fa-thers mynde that the executours shouldehaue delyuered suche shepe as it had plea-sed them to delyuer: he neded nat to haueadded these wordessuche as they wyll. Foryf they had nat ben put / it wolde nat haueben dought but that the executours dely-uerynge euery of them an hundred shepe(what so euer they were) had fulfylled thewyll / and coulde haue ben no further com-pelled / wherfore if his mynde was as theysay / it was a great folye to put in tho wor-des whiche made a playne mater to be vn-plaine. And than finally shew it is more ho[-]nest and conuenient to expounde it as wesay: than as our aduersaries do.¶ Raciocinacion is whan the mater is incontrouersy / wherupon no law is decreed /but yet the iugement therof may be foūdeout by lawes made vpon maters somdeleresemblynge thereunto.¶ As in Rome was this law made / thatyf any persone were distraught / his posses-sions and goodes shulde come to the han-des of his next kynne.¶ And an other law / what any househol-der doth ordeyn & make as concernyng hishouseholde and other goodes / it is appro-bate and confirmed by the law.¶ And an other law / if any housholder dyeintestate / his money & other goodes shal re[-]mayne to his next kyn. ¶ It chaūced oneto kyll his owne mother / wherupō he wastaken & cōdēpned to deth / but while he layin pryson / certayn of his familiare frendescam thyder to hym / & brought with thema clerke to wryte his testament / whiche hethere made / & made suche executours as itpleased hym. After his deth his kynnesmēchalenge his good[e]s / his executours say thēnay / wherupō ariseth cōtrouersy afore theiustice. ¶ There is no law made vpon thiscase / whether he ythath killed his mothermay make any testamēt or nat / but it maybe reasoned on bothe p[ar]ties by the lawes a-boue reherced. The kynsmen shal allege yelaw made for thē ytbe out of theyr mynd[e]s /p[re]supposyng hym nat to be in moche othercase / or els he wold nat haue don the dede.The contrary parte shall allege the otherlaw / & shew that it was none alienacion ofmynde: but som other cause ytmoued hymto it / & that he hathe had his punysshmenttherfore / whiche he shulde nat haue suffredof cōuenient if he had ben besyde him selfe.¶ Translacion is whiche the lawyers callexcepcion / as yf the person accused pleadethat it is nat lawfull for the tother to ac-cuse hym / or that the Iuge can be no iugein that cause. &c.hand¶ The conclusion of the Author.THese are my speciall andsinguler good Lorde whiche Ihaue purposed to wryte as tou-chyng the chief poynt of ye.iiii.that I sayd in the begynnyng to long to aRhetoricien / & which is more difficulty thāthe other .iii. so that it ones had / there is novery great maistry to com by the resydue.Natwithstandynge yf I se that it be fyrsteacceptable to your good lordship / in whomnext god & his holy saintes I haue put mychief cōfidence & trust / & after ytyf I fyndethat it seme to yereders a thing worthy tobe loked on / & ytyour lordshyp & they thinknat my labour takē in vayne: I wyll assaymy selfe in yeother partes / & so make & ac-cōplyssh yehole werk. But now I haue fo[-]lowed yefacion of Tulli / who made a seue[-]rall werke of inuencion. And though ma-ny thynges be left out of this treatyse thatought to be spoken of / yet I suppose thatthis shall be sufficyent for an introductionto yonge begynners / for whome all onelythis booke is made. For other that ben en-tred all redy shall haue lytle nede of my la-bour / but they may seke more meter thyn-ges for theyr purpose / either in Hermogi-nes amonge the Grekes / or els Tullie orTrapesonce / amonge the Latines. And tothem that be yonge begynners nothyngecan be to playne or to short / wherfore Ho-race ī his boke of yecraft of Poetry sayth.handQuicquid precipies esto breuis vt cito dictaPercipiant animi dociles teneantq[ue] fideles.handWhat so euer ye wyll teache (sayeth he)be briefe therin / that the myndes of the he-rers or reders may the easiyer perceyue it /and the better bere it away. And the Em-perour Iustinian sayeth in the fyrste bokeof his institucions in the paragraph of iu-stice and right / that ouer great curiosity inthe fyrst principles / make hym that is stu-diouse of the facultie either to forsake it: orels to attayne it with very great and tedy[-]ouse labour / and many tymes with greatdispayre to com to the ende of his purpose.And for this cause I haue ben farre lesse cu[-]riouse than I wolde els haue ben / and alsoa great dele the shorter. If this my labourmay please your lordeshyp / it is the thyngethat I do in it moost desyre / but yf it semebothe to you and other a thyng that is ve-ry rude and skant worthe the lokynge on:yet Aristotles wordes shal confort me / whosayeth ytmen be nat onely bounde to goodauthors: but also to bad / bicause ytby theirwrytynge they haue prouoked cunnyngermen to take the mater on hande / whichewolde els peraduenture haue helde theyrpeace. Truely there is nothynge that Iwolde be more gladder of / than yf it mightchaunce me on this maner to cause theymthat be of moche better lernynge and excer[-]cise in this arte than I / of whō I am verysure that this realme hath greate plenty /that they wold set the penne to the paper /and by their industry obscure my rude igno[-]raunce. In the meane space I beseche thereders / yf they fynde any thynge thereinthat may do them any profyte / that theygyue the thankes to god and to your lord-shyp / and that they wyll of theyr charitiepray vnto the blessyd Trinite for me / thatwhan it shall please the godhed to takeme from this transitory lyfe / I mayby his mercy be of the nombre ofhis elect to p[er]petuall saluacion.
¶ We may also begyn at the nature of thetyme that we speke in / or at the nature ofthe place / or at any other circumstaunce orthynge incident. As Liuius in the .ix. bokeof his fourthe decade agaynste the feestesthat the Romaynes kept in the honour ofthe ydolyssh god Bacchus / begynneth hisoracion at prayenge on this wyse.
THe solempne makynge of prayersvnto the goddes was neuer so aptenor yet so necessary in any oracion as it isin this / whiche shall shew and admonyssheyou that they be very and ryght goddes /whom our elders haue ordeyned to be wor[-]shypped / adoured / and prayed vnto.
¶ Briefly in all prefaces belongynge tooracions deliberatiues the office of the per[-]sone: and the necessytye or commodytyeof the matter that we treate of are consy-dered.
¶ The narracion.
IN oraciōs deliberatiues we vse veryseldome narracions / but for the moreparte in stede of them we make a brief pro[-]posicion cōteinyng the sūme of our entent.As now adayes nothing is so necessary asto labour to brynge these dissencions thatbe in the chyrche to a perfecte vnity & con-corde / that accordyng to Christes sayng[e]s /there be but one shepeherde and one folde.Neuertheles we vse somtyme briefenarra[-]ciions/ whā ytsom thyng hath ben don allredy of ytthat we giue our coūcell vpō / asin the abouesayd oracion ytTuli made forPōpey / where he maketh this narracion.
GReat & very perillous warre is madebothe agaynst your tributours / andalso thē that bothe cōfederate with you: &by you called your felowes / whiche warreis moued by two ryght myghty kynges /Mithridates & Tigranes. &c. ¶ After thismaner is a narracion in the oraciō ytHa-niball made to Scipio / & is cōteined in thex. boke of ye.iii. decade of Liui[us] / right pro-per & elegant / without any preface begyn-nyng his narracion thus.hand¶ If it hathben ordeyned by my fortune and destenythat I whiche first of all yeCarthaginorsbegan warre with the Romayns / & whichhaue almoost had the victory so often inmyne hādes / shuld now com of myne ownemynde to aske peace. I am glad that for-tune hathe prepared that I shulde aske itof you specially. And amonge all your no-blelandesthis shall nat be one of the leestthat Haniball gaue ouer to you / to whomthe goddes had gyuen afore the vyctoryeouer so many capitains of the Romayns /& that it was your lucke to make an endeof this warre / in the which the Romaynshaue had farre mo euyll chaunces thā weof Carthagene. And whether it were mydesteny or chaūce ytought me this skorn-full shame. I which began the warre whāyour father was Consull / and after ioynedbataile with hym whan he was made Ca-pitayne of the Romayns army / must nowcome vnarmed to his son to aske peace ofhym. It had ben best for bothe parties yfit had pleased the goddes to haue sent ourfore faders that mynde / that you of Romewolde haue ben content with the Empyreof Italy / and we Carthaginoys with Af-frike. For neither Sicil nor Sardinia canbe any sufficēt amendes to either of vs forso many naueis / so many armies / so manyand so excellent capitaines lost in our war-res betwene vs / but thynges passed / maysoner be blamed than mended. We of Car-thagene (as touchynge our parte) haue socouetyd other dominions / that at lengthewe had busines ynough to defende our pos[-]sessions. Nor the warre hath nat ben onlywith you in Italy or with vs onely in Af-fryke: but at the pleasure of fortune / som-tyme here and som there / in so moche thatyou my maisters of Rome haue sene yestā[-]derdes and armes of your enemies hardeat your walles and gates of the citie. Andwe on the other syde haue herde the noyseout of your campe into our citie.
¶ After the narracion ought to foloweimmediately the proposicion of our coun-cell or aduise. As after the narraciō of Ha-niball afore reherced / foloweth the propo-sicion of his purpose thus.
THat thynge is now entreated whilefortune is fauourable vnto you / thatwe ought moost to abhorre / and you sure-ly ought aboue all thynges to desyre / thatis to haue peace. And it is most for the pro[-]fyte of vs two / whiche haue the mater inhandelyng that peace be had. And sure webe / that what so euer we agree vppon / ourcities wyll ratifie the same.
¶ Next foloweth the confirmacion of thothynges ytwe entende to persuade / whichmust be fet out of the places of honesty / pro[-]fite / easines / or difficulty. As if we will per[-]suade any thynge to be done / we shall shewthat it is nat only honest & laudable: but al[-]so profytable & easy ynough to perfourme.Or if we can nat chose but graūt that it isharde / yet we shall shew that it is so honesta dede / so worthy praise / & besydes so greatcōmodity wyll come therof / that the hard-nes ought in no wise to fere vs: but ratherbe as an instigacion to take the thynge onhande / remembrynge the greke prouerbe.Scisnola ta nala/ that is to say / all excellent& cōmēdable thyng[e]s be hard & of difficulty.
¶ In honesty are cōprehēded all vertues /as wysdō / iustice / due loue to god / & to ourparentes / liberality / pity / constāce / tempe-rance. And therfore he that wyll for the cō[-]fyrmyng of his purpose declare & proue ytit is honest & cōmendable ythe entēdeth topersuade hym: behoueth to haue perfyteknowlege of yenatures of vertues. And al[-]so to haue in redy remembraūce sentencesbothe of scripture & of philosophy / as ora-tours & poetes / & besyde these / examples ofhistoryes / forgarnyssshyngof his maters.
¶ As cōcernynge the place of vtilitie / wemust in all causes loke if we may haue anyargumētes wherby we may p[ro]ue that ourcoūcell is of suche necessity / that it can natbe chosen but they must nedes folow it / fortho argumētes be of farre greater strēgththan they ytdo but onely proue the vtilityof yemater. But if we cā haue no suche ne-cessary reasōs / thā we must serche out ar-gumētes to p[ro]ue our mynde to be p[ro]fitableby circūstances of the cause. In like manerto persuade a thyng by the easines therof /or dissuade it by the difficulty of the thing /we must haue respect to possibility or īpossi[-]bilite / for these p[ro]ues are of strenger naturethā the other / & he ytwyll shew yta thyngmay be done easely: must presuppose yepos[-]sibilite therof. As he on the other side thatwyll p[er]suade a thyng nat to be done / yf heshew & manifest ytit is impossible / arguethmore strōgely thā if he could but only p[ro]uedifficulty in it / for as I sayd / many thyng[e]sof difficulty yet may be the rather to be ta-ken on hande / that they may get thē thatacheue them the greater fame and prayse.And these argumentes be fet out of the cir[-]cūstances of yecause / ytis to say / the time /the place / the doers / the thynge it selfe / themeanes whereby it shulde be done / the cau[-]ses wherefore it shulde be done or nat / thehelpes or impedimētes that may be ther-in. In this purpose examples of historiesare of great efficacy.
¶ The confutacion is the soilynge and re-fellyng of other mēnes sayeng[e]s that haueor might be brought against our purpose /wherefore it consisteth in places contraryto the places of confirmaciō / as in p[ro]uyngthe sayenges of the contrary part / neitherto be honest nor profitable / nor easy to per-forme / or els vtterly impossible.
¶ The conclusion standeth in two thyn-ges / thatis isto say / a briefe and compen-diouse repetyng of all our reasons that wehauebronghtfor vs afore / and in mouyngof affections. And so dothe Ulysses con-clude his oracion in the .xiii. boke of Oui-des metamorphosy.
¶ Of the thyrde kynde of ora-cions / called Iudiciall.
ORacions iudiciall be that longeto controuersies in the lawe andplees / which kynde of oracion inolde tyme longed onely to Iudges & menof law / but now for the more parte it is ne-glecte of them / though there be nothyngemore necessarye to quicken them in craftyand wyse handelynge of theyr maters.
¶ In these oracions the fyrste is to fyndeout the state of the cause / whiche is a shortproposicion / conteynynge the hole effect ofall the controuersies. As in the oracion ofTulli / made for Milo / of yewhich I mademencion in the begynnynge of my boke.The state of the cause is this. Milo sleweClodius lawfully / whiche thynge his ad-uersaries denyed / and yf Tully can proueit / the plee is wonne.
¶ Here must be borne away that there bethre maner of states in suche oracions.
¶ The fyrst is called coniecturall. The se-conde / legitime. The thirde / iudiciale / andeuery of these hathe his owne proper pla-ces to fet out argumentes of them / where-fore they shall be spoken of seuerally. Andfyrste we wyll treate of state coniecturall /whiche is vsed whan we be certayne thatthe dede is done / but we be ignorant whodyd it / and yet by certayne coniectures wehaue one suspecte / that of very lykelyhodeit shulde be he that hathe commytted thecryme. And therfore this state is called con[-]iecturall / bicause we haue no manifest p[ro]fe /but all onely great lykelyhodes / or as theRhetoriciens call them / coniectures.
¶ Example.
THere was a great contencion in theGrekes army afore Troye betweneUlisses and Aiax / after the dethe of Achil-les / which of them shulde haue his armouras nexte to the sayd Achilles in valiaunt-nes. In whiche controuersye whan theGrekes had Iuged the sayd armour vntoUlisses / Aiax for very great disdayne fellout of his mynde / & shortly after in a wodenygh to the hooste / after he had knowen(whan he cam agayne to hym selfe) whatfolyssh prankes he had played in the tymeof his phrenesy / for sorow & shame he slewehym selfe. Sone vpon this dede cam Ulis-ses by / whiche seynge Aiax thrust thrughewith a swerde: cam to hym / and as he wasabout to pull out the swerd / the frendes ofAiax chaūced to com the same way / whichseynge theyr frende deed / and his olde ene-my pullyng out a swerde of his body / theyaccused hym of murder.
¶ In very dede here was no profe. For oftruthe Ulisses was nat gylty in the cause.Neuer theles the enuye that was betweneAiax and hym: made the mater to be nat alytle suspect / specially for ythe was foūdethere with the sayd Aiax alone / whereforethe state of the plee was coniecturall / whe[-]ther Ulisses slew Aiax or nat.
¶ The preface.
THe preface is here euyn as it is inother oracions. For we begyn accor[-]dyng to the nature of the cause ytwe haueon hāde / either in blamyng our aduersary /or els mouynge the herers to haue pity onour client. Or els we begyn at our owne p[er]-sone / or at the prayse of the Iuge. &c[etera].
¶ The narracion.
THe narraciō or tale is the shewyngeof the dede in maner of an historye /wherin yeaccuser must craftly entermēglemany suspicions which shall seme to makehis mater p[ro]uable. As Tulli in his oracionfor Milo / where in his narracion he inten-deth by certayn cōiectures to shew ytClo[-]dius laye in waite for Milo / he in his saydnarracion handeleth that place thus.
¶ In the meane season whā Clodius hadknowlege that Milo had a lawfull &neces[-]ryiourney to the city of Lauine ye.xiii. dayafore the kalendes of Marche / to poyntewho shuld be hed preest there / which thinglonged to Milo because he was dictatourof that towne: Clodius sodaynely the dayafore departed out of Rome to set vpponMilo in a lordeshyp of his owne / as afterwas well perceyued. And suche haste hemade to be goyng that were as the peoplewere gadered yesame day for mat[er]s wher-in also he had great adoo hym selfe / & verynecessarye it had ben for hym to haue benthere / yet this nat withstandyng / all otherthynges aparte: he went his way / whicheyou may be sure he wold neuer haue done /saue onely that he had fully determined topreuent a tyme and place conuenient forhis malicius entēt afore Miloes comyng.
¶ In this pece of Tullies narracion areentermengled fyrst that Clodius knew ofMiloes goynge / whiche maketh the ma-ter suspecte ytClodius went afore to metewith him / for this was well knowen aforethat Clodi[us] bare Milo great grudge andmalice. Next is shewed the place where asClodius met Milo / whiche also gyueth agreat suspicion / for it was nygh Clodiusplace / where he myght sone take socour / &the tother was in leest assuraūce. Thyrdlythat he departed out of the city / what tymeit 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 selfesaieth) in no wise haue ben absent at suchea busy tyme / onles it had ben for som greatpurpose / and what other shulde it seme thāto slee Milo. As surely euident it was thatthey buckled to gyther / and this was wellknowen that Milo had a necessary causeto go furth of Rome at that tyme. Contra[-]ryly in Clodius coulde be perceyued nonother occasion to departe than oute of thecitie: but of lykelyhood to lye in waytefor Milo.
¶ The proposicion.
OUt of the narracion must be ga-deryd a briefe sentence / whereinshall stande the hole pithe of thecause / for Rhetoriciens put incontinent af[-]ter the narracion diuision / which is a partof contencion / & dothe bryefly shew wherinthe controuersy doth stande / or what thin-ges shall be spoken of in the oracion. Thisdiuision is deuyded into seiunction and di-stribucion.
¶ Seiunction is whan we shew whereinour aduersaries and we agree / and what itis / whereupon we stryue. As they that ple-dyd Clodius cause agaynst Milo / myghton this maner haue vsed seiunction. ThatMilo slew Clodius: our aduersaries cannat denaye / but whether he myght so dolawfully or nat / is our controuersy. Distri-bucion is the proposicion wherein we de-clare of what thynges we wyll speke / ofwhiche yf we propose how many they be /it is called enumeracion / but yf we do natexpresse the nombre / it is called exposicion.
¶ Example of bothe is had in the oracionthat Tully made to the people that Pom-peyus myght be made chiefe capitayne ofthe 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 spekeof the nature & kynde of this warre /and after that of the greatnes thereof / andthan 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 thusas foloweth.
TRuely this is myne opinion / that hewhiche shall be a gouernour of anhoost / 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 aman of his handes. The thyrde that he bea man of suche auctority: that his dignitymay cause his souldiers to haue hym in re-uerence and awe. The fourth is that he befortunate and lucky in all thynges that hegoeth about.
¶ Tully in the oracion for Milo / propo-seth all onely shewynge wherin the contro[-]uersy of the plee dyd stande on this maneras foloweth.
IS there than any thynge els ytmuste tryedand iudged in this cause sauethis: whether of them bothe beganne thefraye and entended to murder the tother?No surely. So that yf it can be foundenthat 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 waytefor to slee Milo / and so was the sercher ofhis owne dethe / and that what Milo dydit was but to defende hym selfe frome thetreason of his enemy and the sauegarde ofhis lyfe: that than he may be delyueredand quyt.
¶ Of confirmacion.
THe confirmacion of the accu-ser is fetched out of these pla-ces / wyll / and power. For thesetwo thynges wyll cause the persone thatis accused to be greatly suspect that he hadwyll to do the thyng that he is accused of /and that he myght well ynoughe bryngeit to passe.
¶ To proue that he had wyll therto: youmust go to .ii. places. The one is yequaliteof the persone / & the other is the cause thatmeuyd him to the dede. The qualitie of theperson is thus handled. First to loke whatis 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 inmen to make them gyue names accordingto the maners of euery person. Than nextto behold his contrey. So Tulli in his ora[-]cion made for Lucius Flaccus / to unprouethe witnes that was brought against himby Grekes / layeth vnto them the lightnesof theyr contrey. This (sayeth Tulli) do Isay of the hole nacion of Grekes. I graūtto them that they haue good lernyng / andthe knowlege of many sciences. Nor I de-nye nat but that they haue a pleasant andmarueylouse swete speche. They are alsopeople of high and excellent quicke wyt / &thereto they be very facundiouse. These &suche other qualities wherein they boostethē selfe greatly: I wyll nat repyne agaīstit that they bere the maistry therein. Butas concernyng equitie and good consciēce /requisite / in berynge of recorde / or gyuyngof any wytnes / & also as touchynge faith-fulnes of worde and promyse: truely thisnacion neuer obserued this property / nei-ther they knewe nat what is the strength /auctoritye / and weight therof.
¶ So to Englysshmen is attributed sūp-tuousnes in meates & drinkes. To Frenchmen / pryde / & delyte in new fantasyes. ToFlemmynges and Almaynes / great dryn-kyng / & yet inuētife wittes. To Britayns /Gascoignes / and Polones / larrecine. ToSpanierdes / agilitye. To ytaliens / hyghwyt and moche subtilty. To Scottes / bold[-]nes / to Irissh men / hastines. To Boemesvaliauntnes and tenacite of opinions. &c.
¶ After that to loke on his kynred / as yfhis father or mother or other kynne wereof yll disposicion / for as the tree is: suchefruite it bereth.
¶ On this wyse dothe Phillis entwyteDemophon / that his father Theseus vn-curteysly and trayterously lefte his loueAriadna alone in the desert yle of Naxus /& contrary to his promise stale from her bynyght / addyngeHeredempatriaperfide frau-dis agis. That is to saye / vntrew and falseforsworne man / thou playest kyndely thefathers heyre / in deceytable begylynge ofthy true louer.
¶ After that we must loke vppon the sex /whether it be man or woman that we ac-cuse / to se yf any argumēt cā be deduct outof it to our purpose. As in men is noted au[-]dacity / women be comonly tymerouse.
Than nexte / the age of the persone. As inTherence Simo speketh of his son Pam-philus / sayeth vnto his man called Sosia /how couldest thou know his condicions ornature afore / whyle his age and feare / andhis maister dyd let it to be knowen.
¶ Hipermestra in Ouides epistels ioineththese .ii. places of sex & age to gyther thus.
¶ I am a woman & a yong maiden / milde& gentyll / both by nature & yeres. My softhandes are nat apte to fiers batayles.
¶ After these folow strēgth of body / or agi[-]lity / & quicknes of wyt / out of whiche maybe broght many reasōs 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 menabout hym) by chaunce at that tyme hadin his company certayne Musiciens andmaydens that wayted on his wyfe / whomhe had syttynge with hym in his wagen.Contraryly Clodius that was neuer wōtafore but to ryde in a wagen & to haue hiswyfe with him: at that tyme rode furth onhorsebacke. And where as afore he was al-wayes accustomed to haue knaues & que-nes in his company: he had than non buttall men with hym / & (as who shulde say)men piked out for the nones. ¶ To this isadded forme / as to assay yf we can haue a-ny argument to our purpose out of the per[-]sones face or countenance / & so doth Tullyargue in his oraciō agaynst Piso / sayeng.
¶ Seest thou nat now thou beest? doest y[o]unat now p[er]ceyue what is mennes cōplaynton thy visage? there is nō that cōplaineththat I wote nat what Surrien & of theyrflocke 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 hathnat deceiued vs nor hery cheke balles / norrotten & fylthy tethe / thyne iyes / thy bro-wes / forhed / & hole coūtenaūce / which in amaner doth manifest mēnes cōdiciōs & na[-]ture it hath deceiued vs. ¶ This done / wemust consyder how he hath bē brought vpy[at] we accuse / among whom he hath lyued / &whereby / how he gouerneth his houshold /& assay if we cā pyke out of these ought forour purpose. Also of what state he is of / freor bond / riche or pore / beryng office or nat /a man of good name / or otherwise / wherinhe deliteth moost / which places do expressemānes lyuyng / & by his lyuyng: his will &mynde / as I wold declare more fully / sauethat in introductions men must labour tobe short / and agayne they are suche that hethat hath any perceyuyng may sone knowwhat shall make for his purpose / & how toset it furthe. And therfore this shall suffyseas 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 themore lykelyhood. As Tully in defendyngeMilo / layeth to Clodius frendes chargesthat he had non about hym but chosē mē.And for to clere Milo he sheweth the con-trary / that he had with hym syngyng lad-des and women seruantes that wayted onhis wyfe / whiche maketh it of more likely-hood ytClodius went about to slee Milo:than Mylo hym.
¶ The cause that moueth to the mischiefelyeth 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 saydthat Dauus (whō he had poynted to waytvppon his sone Pamphilus) wolde do allthat myght lye in hym bothe with handeand fote / rather to dysplease hym: than toplease Pamphilus mynde. And Sosia de-maunded why he wolde do so. Simo madeaunswere by raciocinacion / sayenge / doestthou aske that? mary his vngracious andvnhappy 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 youthat she that was caried awaye of a yongeman / and hote in loue / was restored agayna mayde?
¶ Tulli in the oracion for Milo / amongeother argumētes bryngeth in one againstClodius by naturall impulsion of hatred /shewynge that Clodius had cause to hateMilo fyrst / for he was one of them that la[-]boured for the same Tullyes reuocacyonfrom exyle / whiche Tulli Clodius malici-ously hated. Agayne that Milo oppressydmany of his furiouse purposes. And final-ly by cause the sayd Milo accused hym andcast hym afore the Senate and people ofRome.
¶ Raciocinaciō is that cometh of hope ofany commodity / or to eschew any discom-modity. As Tully argueth in his oracionfor Milo agaynst Clodius by raciocinaci-on to proue that it was he that layde waytfor Milo on this maner.
IT is sufficient to proue that this cru-ell and wicked beest had a great causeto slee Milo / yf he wolde brynge his ma-ters that he wēt about to passe / and greathope if he were ones gone / nat to be lettedin his pretenced malyce.
¶ After raciocinacion foloweth compro-bacion / to shewe that no man els had anycause to go there about / saue he whome weaccuse / nor no profite could com to no manthereof: saue to hym.
¶ These are the wayes whereby anoratour shall proue that the personeaccused had wyll to the thyngethat is layd to his charge.
TO proue that he might do it: yemust go to the circumstance ofthe cause / as that he had leyserynough thereto / and place conuenient andstrength withall.¶ Also youshall 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 hisoracion now often alleged argueth againstClodius by signes goynge afore the dede /as that Clodius sayd thre dayes afore Mi-lo was slayne: that he shulde nat lyue thredayes to an ende. And that he went out ofthe city a lytle afore Milo rode furth witha great companye of stronge and mysche-uous knaues.
¶ Signes folowynge are as yf after thedede was done he fled / or els whan it waslayed to his charge: he blusshed or waxedpale / or stutted & coulde nat well speke.
¶ The contrary places (as I sayd afore)long to the defender / saue that in signes hemust vse .ii. thinges / absolucion & inuerciō.
¶ Absoluciō is wherby the defendour she-weth that it is laufull for hym to do thatwhat the aduersary bringeth in for a signeof his malice.
¶ Example.
¶ A man is founde couerynge of a dede bo[-]dy / & therupon accused of murder / he mayanswere that it is laufull to do so for yepre-seruacion of his body from rauons & otherthat wolde deuoure hym / tyll tyme he hadwarned people to fetche and bury hym.
¶ Inuercion is wherby we shew that thesigne whiche is brought agaīst vs: makethfor 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 someother way for feare of takynge.
¶ Of the conclusion.
THe cōclusion is as I haue saidafore in briefe repetynge of theeffecte of our reasons / & in mo-uynge the Iudges to our purpose. The ac[-]cuser to punysshe the persone accused. Thedefender / to moue hym to pity.
¶ Of the state iuridiciall / andthe handelynge thereof.
AS state coniectural cometh outof this questyon (who dyd thedede) so whan there is no doubtbut that the dede is done / and who dyd it /many tymes controuersy is had / whetherit hath ben done laufully or nat. And thisstate is negociall or iuridiciall / whiche con[-]teyneth the right or wronge of the dede.As in the oracyon of Tully for Milo / thestate is iuridiciall / for opē 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.
THe confirmacion hath certaynplaces appropred thereto / buthere must be marked that statenegociall is double / absolute / & assūptyue.
¶ State negociall absolute is whan thethynge that is in controuersy is absolute-ly defended to be laufully done. As in theoraciō of Tulli for Milo / the dede is styflyaffirmed to be lawfully done in sleyng Clo[-]dius / seynge that Milo dyd it in his ownedefence / 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 / iugemēt / necessity / bargayneor couenant. ¶ Of the whiche places Tul[-]ly in his oracion for Milo bryngeth in themore parte to gyther in a cluster on thismaner.
IF reason hath prescrybed this to ler-ned and wise men / and necessity hathdryuen it into barbarous and rude folke / &custome kepeth it among all nacions / andnature hathe planted it in bruite beestes /that euery creature shuld defende hym selfeand 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 cā nat iugethis dede euyll done / except you wyll iudgethat whan men mete with theuys or mur-derers / they must either be slayne by thewepons of suche vnthryfty and maliciouspersones: either els perysshe by your sen-tence gyuen in iugement vpon them.
¶ State assumptiue is whan the defenceis feble of it selfe / but yet it may be holpenby some other thynge added to it. And theplaces longynge to this state are graun-tynge of the faute / remouynge of the faut /or (as we say in our tongue) layeng it fromvs to an other / &tanslatyngeof the faute.
¶ Grauntyng of the faut is whan the per[-]son accused denieth nat the dede / but yet hedesyreth to be forgyuen / & it hath .ii. placesmo annexyd to it / purgacion & deprecaciō.
¶ Purgacion is whan he sayeth he dyd itnat maliciously: but by ignorāce or mishapwhiche place Cato vseth ironiously in Sa[-]lust / thus. My minde is that ye haue pytywith you / for they that haue don amysse bebut very yonge men / and desyre of honourdraue them to it.
¶ Deprecaciō is whā we haue non excuse:but we call vpon the Iustices mercy. Thehandelynge whereof Tulli wryteth in hisboke of inuencion thus.
HE that laboreth to be forgyuē of hisfaut / must reherce (yf he can) som be-nefytes of his / done afore tyme / and shewthat they be farre greater in theyr naturethan 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 merytesof his elders / yf there be any / and to openthem. That don / he must retourne to theplace of purgacion / and shewe that he dydnat the dede for any hate or malyce / but ei-ther by folysshnes / or els by the entisementof som other / or for some prouable cause.And than promise faithfully that this fautshall teche hym to beware frō thens forth /and also that theyr benefytes that forgyuehym shal bynde hym assuredly neuer to doso more / but perpetually to abhorre anysuche offence / and with that to shewe somegreat hope ones to make them a great re-cōpence & pleasure therfore agayne. Afterthis let hym (yf he can) declare som kynredbetwene thē & hym / or frendshyp of his el-ders / & amplifye the greatenes of his ser-uice & good harte towarde them / yf it shallplease them to forgiue this faut / & adde thenobility of theym that wolde fayne hauehym delyuered. And than he shall soberlydeclare his owne vertues and suche thyn[-]ges as be in hym perteynyng to honesty &prayse / that he may by these meanes semerather worthy to be auaunced in honourfor his good qualities / than to be punishedfor his fall.
¶ This done / let hym reherce some otherthat haue be forgyuen greater fautes thanthis is. It shall also greatly auayle yf hecan shewe that he hathe in tyme afore benin auctoritie and bare a rule ouer other / inthe whiche he was neuer but gentyll andglad to forgyue them that had offended vn[-]derneth hym. And than let hym extenuatehis owne faute / and shew that there folo-wed nat so great damage therof / and thatbut lytle profyte or honesty wyll folowe ofhis punysshment. And finally than by co-mon places to moue the iudge to mercy &pitie vpon hym.
¶ The aduersary must (as I haue shewedafore) vse for his purpose contrary places.
¶ Some Rhetoriciens put no mo placesof deprecacion than only this that is herelast reherced of Tulli / that is to do our bestto moue the iustice to mercy and pity.
¶ Remocion of the faute is whan we putit from vs and lay it to another.
¶ Example.
THe Venecians hauecommanndedcertayne to go in ambassade to En-glande / and thereuppon appointed theymwhat they shal haue to bere their charges /whiche money assigned: they can nat getof the treasourer: At the daye appoyntedthey go nat / whereupon they are accusedto the Senate. Here they must ley the fautfrom them to the treasourer / which dispat-ched them nat accordyng / as it was ordey[-]ned that he shulde.
¶ Trāslacion of the faut is / whan he thatcōfesseth his faut sayeth that he dyd it: mo[-]ued by the indignacion of the maliciousedede of an other.
¶ Example.
KYngeAgamennon/ which was chiefcapitayne of the Grekes at the siegeof Troye / whan he cam home was slayneof Egist[us] by the treason of Clitenestra hisowne wyfe / which murder his son Orestesseynge / whan he cam to mannes state / re-uenged his fathers dethe on his mother / &slew her / whereupon he was accused. HereOrestes can nat deny but he slew his mo-ther: But he layeth for hym that his mo-thers abhominable iniury cōstrayned himthereto / bycause she slew his father.
And this is the handelynge of confirmaci-on in state assumptiue.
¶ The conclusions in these oracions arelyke to the conclusions of other.
¶ Of state legitime / andthe handelyng therof.
STate legitime is whan the con-trouersy standeth in definicion orcontrary lawes / or doutfull wry-tynges / or raciocinacion / or translacion.
¶ Of definicion.
DEfinicion (as Tully wryteth) iswhan in any wrytynge is someworde put / yesignificaciō wher-of requireth exposicion.
¶ Example.
ALawe may be made that suche asforsake a shyppe in tyme of tempestshulde lese theyr ryght ytthey haue / eitherin the shyppe or in any goodes within thesame vessell / & that they shal haue the shyp& the goodes that abyde styll in her.
¶ It chaūced .ii. men to be in a lytle cray-er / of the whiche vessell the one man wasboth owner and gouernour / and the other:possessour of the goodes. And as they werein the mayne see / they espied one that wasswymmynge in the see / and as well as hecoulde holdyng vp his handes to them forsocour / wherupon they (beyng moued withpitie) made towarde hym / & toke hym vp.Within a lytle after arose a greate tempestvpon them / and put them in suche ieopar-dy that the owner of the shyp (which wasalso gouernour) lepte out of the shyp intothe shyp bote / and with the rope that tyedthe bote to the shyp: he gouerned the shypas well as he coulde. The marchant thatwas within the shyp / for greate dispayre ofthe losse of his goodes / wyllyng to slee himselfe: threst hym selfe in w[i]t[h] his owne sword /but as it chaunced the wounde was ney-ther mortall nor very greuouse / but nat-withstādyng for that tyme he was vnableto do any good in helpyng the shyp againstthe impetuousnes of yestorme. The thyrdman (whiche nat longe afore had sufferedshyp wracke) gate hym to the sterne / andholpe the vessell the best that laye in hym.At lengthe the storme seaced / and the shypcame safe into the hauen / bote & all. He ytwas hurt (by helpe of chirurgiens) recoue[-]red anon. Now euery of these thre chalēgethe shyp & good[e]s as his owne. Here eueryman layeth for hym the lawe aboue reher-ced / and all theyr controuersy lyeth in theexpoundynge of thre wordes / abydynge inthe shyp / and forsakynge the shyp / & whatwe shal in suche case call the shyp / whetherthe bote as part of the shyp: or els the shypit selfe alone.
¶ The handelynge hereof is. Fyrst in fewwordes and playne to declare the significa[-]cion of the worde to our purpose / and aftersuche maner as may seme resonable to theaudience. Nexte / after suche exposicion todeclare and proue the sayd exposicion true /with as many argumentes as we can.
Thyrdely to ioyne our dede with the expo-sicion / & to shew that we onely dyd obseruethe very entent of the lawe. Than to refellthe exposicion of our aduersaries / & to shewthat their exposicion is contrary to reasonand equitie / and that no wyse man wyll sotake the law as they expounde it / and thatthe exposicion is neither honest nor profy-table / and to conster theyr exposicion withoures / and to shew that oures conteyneththe veritie / and theyrs is falce. Oures ho-nest / reasonable / & profitable: Theyrs clenecontrarye. And than serche out lyke exam-ples / either of greater maters or of lesse / orels of egall maters / and to manifest by thēthat our mynde is the very truthe.
¶ Contrary lawes are where the tone se-meth euidently to contrarye the other. Asyf a law were that he whō his father hathforsaken for his sōne / shall in no wyse haueany porcion of his fathers goodes. And another law / that who so euer in tyme of tem[-]pest abydeth in the shyp: shall haue yeshypand goodes. Than pose that one whichewas of his father so abiecte and denyed forhis chylde: was in a shyp of his fathers intyme of sore wether / & whan all other forfeare of lesynge them selfe forsoke the shyp& gate them into the bote: he onely abode /and by chaunce was safe brought into thehauen / wherupon he chalengeth the vessellfor his / where as the party defendant wylllay against hym that he is abdicate or for-saken of his father / and so can nat by thelaw haue any parte of his goodes.
Here must he say agayn for hym that thislaw alleged doth all only priuate frō theyrfathers goodes suche as be abdicate & yetwolde chalenge a part as his children / butythe doth nat so / but requireth to haue theshyp / nat as a son to his father: but as anyother straunger myght / seyng the law gy-ueth him the shyp ytabideth in her in timeof necessity. And so the handelynge of thisstate / either to deny one of ytlawes & shewthat it hath ben afore anulled / or els to ex-pounde it after the sence that is mete toour purpose.
¶ Doubtfull writynge is where either themynde of the author semeth to be contraryto that that is wryten / which som call wry[-]tynge & sentence / or els it is whan the wor[-]des may be expounded dyuers wayes.
¶ Example of the fyrst.
MEn say it is a law in Caleys that nostraunger may go vppon the townewalles on payne of dethe. Now than posethat in tyme of warre the towne beyngeharde besieged / an alien dwellynge in thetowne getteth hym to the walles amongethe soudiers / & doeth more good than anyone man agayn. Now after the siege endedhe is accused for transgressyng of the law /which in wordes is euidently against him.But here the defendaunt must declare thewryters mynde by circumstaunces / whatstraunger he dyd forbyd / and what tyme /and after what maner / and in what intenthe wolde nat haue any straunger to comeon the walles / & in what intent his myndemight be vnderstanden to suffre an alien togo vpon the walles. And here must the ef-fect of the straūgers wyll be declared / thathe went vp to defend yetowne to put backtheir enemies. And therto he must say thatthe maker was nat so vndiscrete & vnreaso[-]nable that he wolde haue no maner of ex-cepcion which shuld be to the welth / p[ro]fite /or preseruacion of the towne. For he thatwyll nat haue yelaw to be vnderstandē ac[-]cordyng to equitie / good maner / & nature /entendeth to proue the maker therof eitheran vniust man / or folyssh or enuiouse.
¶ The accuser contraryly shall praise themaker of the law for his great wisdom / forhis playne writyng without any maner ofambiguity / ytno straūger shulde p[re]sume togo vpon the walles / & reherce yelaw wordfor worde / & thā shew som reasonable causethat mouyd the maker of the law that hewolde vtterly that no straunger shulde as-cende the walles. &c. Exāple of the secōd.
AMan in his testamēt gyueth to twoyonge doughters that he hathe twohūdred shepe / to be delyuered at the day oftheyr maryage / on this maner.handI wyllthat myne executoures shall gyue to mydoughters at the tyme of theyr maryageeuery of theym an hundred shepe / suche asthey wyll. At the tyme of maryage they de[-]maunde theyr cattell / whiche the execu-tours deliuer nat of suche sort as the may-dēs wold / wherupō the cōtrouersy ariseth.For the executours say they are bounde todelyuer to euery of them an hundred shepe /suche as they that be the executours will.Now here standeth the dout / to whom weshall referre this wordethey/ to the dought-ters / or to the executours.
The maydens say nay thereto / but that itwas theyr fathers mynde that they shuldehaue euery of theym an .C. shepe / suche asthey that be the doughters wyll.
¶ The handelyng of doutfull wrytyng isto shew yf it be possible that it is nat wrytēdoutfully by cause it is the comon maner totake it after as we saye / & that it may sonebe knowen by suche wordes as partely gobefore that clause & p[ar]tly folow / & that therebe few wordes / but if they be considered soalone / they may anon be taken doubtfully.And first we shal shew if we can ytit is natdoubtfully wryten / for there is no reasona[-]ble mā: but he wyll take it as we say. Thāshal we declare by that that goeth afore / &foloweth / that it is clerly euin as we say / &that yf we consider the wordes of thē selfethey wyll seme to be of ambiguity / but se-ynge they may by the rest of the wrytyngebe euident ynough / they ought nat to be ta[-]ken as doubtfull. And than shew that yf ithad ben his minde that made the writyngto haue it taken as the aduersarye sayeth:he neded nat to haue wrytē any suche wor[-]des. As in the example now put / the may-dens may say that yf it had ben theyr fa-thers mynde that the executours shouldehaue delyuered suche shepe as it had plea-sed them to delyuer: he neded nat to haueadded these wordessuche as they wyll. Foryf they had nat ben put / it wolde nat haueben dought but that the executours dely-uerynge euery of them an hundred shepe(what so euer they were) had fulfylled thewyll / and coulde haue ben no further com-pelled / wherfore if his mynde was as theysay / it was a great folye to put in tho wor-des whiche made a playne mater to be vn-plaine. And than finally shew it is more ho[-]nest and conuenient to expounde it as wesay: than as our aduersaries do.
¶ Raciocinacion is whan the mater is incontrouersy / wherupon no law is decreed /but yet the iugement therof may be foūdeout by lawes made vpon maters somdeleresemblynge thereunto.
¶ As in Rome was this law made / thatyf any persone were distraught / his posses-sions and goodes shulde come to the han-des of his next kynne.
¶ And an other law / what any househol-der doth ordeyn & make as concernyng hishouseholde and other goodes / it is appro-bate and confirmed by the law.
¶ And an other law / if any housholder dyeintestate / his money & other goodes shal re[-]mayne to his next kyn. ¶ It chaūced oneto kyll his owne mother / wherupō he wastaken & cōdēpned to deth / but while he layin pryson / certayn of his familiare frendescam thyder to hym / & brought with thema clerke to wryte his testament / whiche hethere made / & made suche executours as itpleased hym. After his deth his kynnesmēchalenge his good[e]s / his executours say thēnay / wherupō ariseth cōtrouersy afore theiustice. ¶ There is no law made vpon thiscase / whether he ythath killed his mothermay make any testamēt or nat / but it maybe reasoned on bothe p[ar]ties by the lawes a-boue reherced. The kynsmen shal allege yelaw made for thē ytbe out of theyr mynd[e]s /p[re]supposyng hym nat to be in moche othercase / or els he wold nat haue don the dede.The contrary parte shall allege the otherlaw / & shew that it was none alienacion ofmynde: but som other cause ytmoued hymto it / & that he hathe had his punysshmenttherfore / whiche he shulde nat haue suffredof cōuenient if he had ben besyde him selfe.
¶ Translacion is whiche the lawyers callexcepcion / as yf the person accused pleadethat it is nat lawfull for the tother to ac-cuse hym / or that the Iuge can be no iugein that cause. &c.
hand¶ The conclusion of the Author.
THese are my speciall andsinguler good Lorde whiche Ihaue purposed to wryte as tou-chyng the chief poynt of ye.iiii.that I sayd in the begynnyng to long to aRhetoricien / & which is more difficulty thāthe other .iii. so that it ones had / there is novery great maistry to com by the resydue.Natwithstandynge yf I se that it be fyrsteacceptable to your good lordship / in whomnext god & his holy saintes I haue put mychief cōfidence & trust / & after ytyf I fyndethat it seme to yereders a thing worthy tobe loked on / & ytyour lordshyp & they thinknat my labour takē in vayne: I wyll assaymy selfe in yeother partes / & so make & ac-cōplyssh yehole werk. But now I haue fo[-]lowed yefacion of Tulli / who made a seue[-]rall werke of inuencion. And though ma-ny thynges be left out of this treatyse thatought to be spoken of / yet I suppose thatthis shall be sufficyent for an introductionto yonge begynners / for whome all onelythis booke is made. For other that ben en-tred all redy shall haue lytle nede of my la-bour / but they may seke more meter thyn-ges for theyr purpose / either in Hermogi-nes amonge the Grekes / or els Tullie orTrapesonce / amonge the Latines. And tothem that be yonge begynners nothyngecan be to playne or to short / wherfore Ho-race ī his boke of yecraft of Poetry sayth.
handQuicquid precipies esto breuis vt cito dictaPercipiant animi dociles teneantq[ue] fideles.
handWhat so euer ye wyll teache (sayeth he)be briefe therin / that the myndes of the he-rers or reders may the easiyer perceyue it /and the better bere it away. And the Em-perour Iustinian sayeth in the fyrste bokeof his institucions in the paragraph of iu-stice and right / that ouer great curiosity inthe fyrst principles / make hym that is stu-diouse of the facultie either to forsake it: orels to attayne it with very great and tedy[-]ouse labour / and many tymes with greatdispayre to com to the ende of his purpose.And for this cause I haue ben farre lesse cu[-]riouse than I wolde els haue ben / and alsoa great dele the shorter. If this my labourmay please your lordeshyp / it is the thyngethat I do in it moost desyre / but yf it semebothe to you and other a thyng that is ve-ry rude and skant worthe the lokynge on:yet Aristotles wordes shal confort me / whosayeth ytmen be nat onely bounde to goodauthors: but also to bad / bicause ytby theirwrytynge they haue prouoked cunnyngermen to take the mater on hande / whichewolde els peraduenture haue helde theyrpeace. Truely there is nothynge that Iwolde be more gladder of / than yf it mightchaunce me on this maner to cause theymthat be of moche better lernynge and excer[-]cise in this arte than I / of whō I am verysure that this realme hath greate plenty /that they wold set the penne to the paper /and by their industry obscure my rude igno[-]raunce. In the meane space I beseche thereders / yf they fynde any thynge thereinthat may do them any profyte / that theygyue the thankes to god and to your lord-shyp / and that they wyll of theyr charitiepray vnto the blessyd Trinite for me / thatwhan it shall please the godhed to takeme from this transitory lyfe / I mayby his mercy be of the nombre ofhis elect to p[er]petuall saluacion.