§1.15.1περὶ δὲ τῶν ἀτέχνων καλουμένων πίστεων ἐχόμενόν ἐστι τῶν εἰρημένων ἐπιδραμεῖν·
Next, in connection with what has been said, we must run through what are called the inartificial proofs; for these are peculiar to forensic oratory.
ἴδιαι γὰρ αὗται τῶν δικανικῶν. §1.15.2εἰσὶν δὲ πέντε τὸν ἀριθμόν, νόμοι, μάρτυρες, συνθῆκαι, βάσανοι, ὅρκοι.
They are five in number: laws, witnesses, contracts, tortures, and oaths.
§1.15.3πρῶτον μὲν οὖν περὶ νόμων εἴπωμεν, πῶς χρηστέον καὶ προτρέποντα καὶ ἀποτρέποντα καὶ κατηγοροῦντα καὶ ἀπολογούμενον.
First, then, let us speak about laws, and how one should use them both when exhorting and dissuading, and when accusing and defending.
§1.15.4φανερὸν γὰρ ὅτι, ἐὰν μὲν ἐναντίος ᾖ ὁ γεγραμμένος τῷ πράγματι, τῷ κοινῷ χρηστέον καὶ τοῖς ἐπιεικεστέροις καὶ δικαιοτέροις.
For it is clear that, if the written law is contrary to our case, we must use the common law, and more equitable and more just arguments.
§1.15.5καὶ ὅτι τὸ
γνώμῃ τῇ ἀρίστῃ
τοῦτʼ ἐστίν, τὸ μὴ παντελῶς χρῆσθαι τοῖς γεγραμμένοις.
And that the oath "according to the best judgment" means this: not to rely entirely on written laws.
§1.15.6καὶ ὅτι τὸ μὲν ἐπιεικὲς ἀεὶ μένει καὶ οὐδέποτε μεταβάλλει, οὐδʼ ὁ κοινός (κατὰ φύσιν γάρ ἐστιν), οἱ δὲ γεγραμμένοι πολλάκις, ὅθεν εἴρηται τὰ ἐν τῇ Σοφοκλέους Ἀντιγόνῃ· ἀπολογεῖται γὰρ ὅτι ἔθαψε παρὰ τὸν τοῦ Κρέοντος νόμον, ἀλλʼ οὐ παρὰ τὸν ἄγραφον,
"
οὐ γάρ τι νῦν γε κἀχθές, ἀλλʼ ἀεί ποτε
ταῦτʼ οὖν ἐγὼ οὐκ ἔμελλον ἀνδρὸς οὐδενός.
And that equity always remains and never changes, nor does the common law (for it is according to nature), whereas written laws often change; whence the words in Sophocles' Antigone are spoken, where she defends herself for burying her brother contrary to Creon's law, but not contrary to the unwritten law: "For not now nor yesterday, but always and forever does this live.
"
For these I did not intend, through fear of any man's pride, to suffer punishment from the gods.
§1.15.7καὶ ὅτι τὸ δίκαιόν ἐστιν ἀληθές τε καὶ συμφέρον, ἀλλʼ οὐ τὸ δοκοῦν, ὥστʼ οὐ νόμος ὁ γεγραμμένος· οὐ γὰρ ποιεῖ τὸ ἔργον τὸ τοῦ νόμου.
"And that what is just is true and useful, but not that which only seems to be so; wherefore the written law is not a law, for it does not perform the function of a law.
καὶ ὅτι ὥσπερ ἀργυρογνώμων ὁ κριτής ἐστιν, ὅπως διακρίνῃ τὸ κίβδηλον δίκαιον καὶ τὸ ἀληθές.
And that the judge is like a money-changer, so that he may distinguish counterfeit justice from the true.
§1.15.8καὶ ὅτι βελτίονος ἀνδρὸς τὸ τοῖς ἀγράφοις ἢ τοῖς γεγραμμένοις χρῆσθαι καὶ ἐμμένειν.
And that it belongs to a better man to use and abide by the unwritten laws rather than the written.
§1.15.9καὶ εἴ που ἐναντίος νόμῳ εὐδοκιμοῦντι ἢ καὶ αὐτὸς αὑτῷ, οἷον ἐνίοτε ὁ μὲν κελεύει κύρια εἶναι ἅττʼ ἂν συνθῶνται, ὁ δʼ ἀπαγορεύει μὴ συντίθεσθαι παρὰ τὸν νόμον.
And if a law is contrary to a well-reputed law or even to itself; as sometimes one law commands that whatever agreements men make shall be valid, while another forbids making agreements contrary to the law.
§1.15.10καὶ εἰ ἀμφίβολος, ὥστε στρέφειν καὶ ὁρᾶν ἐπὶ ποτέραν ἀγωγὴν ἢ τὸ δίκαιον ἐφαρμόσει ἢ τὸ συμφέρον, εἶτα τούτῳ χρῆσθαι.
And if a law is ambiguous, so that one can turn it and see to which interpretation either justice or utility will apply, and then use it.
§1.15.11καὶ εἰ τὰ μὲν πράγματα ἐφʼ οἷς ἐτέθη ὁ νόμος μηκέτι μένει, ὁ δὲ νόμος, πειρατέον τοῦτο δηλοῦν καὶ μάχεσθαι ταύτῃ πρὸς τὸν νόμον.
And if the circumstances under which the law was enacted no longer remain, but the law does, one must try to make this clear and fight against the law on this ground.
§1.15.12ἐὰν δὲ ὁ γεγραμμένος ᾖ πρὸς τὸ πρᾶγμα, τό τε
γνώμῃ τῇ ἀρίστῃ
λεκτέον ὅτι οὐ τοῦ παρὰ τὸν νόμον ἕνεκα δικάζειν ἐστίν, ἀλλʼ ἵνα, ἐὰν ἀγνοήσῃ τί λέγει ὁ νόμος, μὴ ἐπιορκῇ.
But if the written law is in favor of our case, then, as to the oath "according to the best judgment," we must say that it is not meant for judging contrary to the law, but so that, if the judge does not know what the law means, he may not commit perjury.
καὶ ὅτι οὐ τὸ ἁπλῶς ἀγαθὸν αἱρεῖται οὐδείς, ἀλλὰ τὸ αὑτῷ.
And that no one chooses what is absolutely good, but what is good for oneself.
καὶ ὅτι οὐδὲν διαφέρει ἢ μὴ κεῖσθαι ἢ μὴ χρῆσθαι.
And that it makes no difference whether a law is not enacted or not used.
καὶ ὅτι ἐν ταῖς ἄλλαις τέχναις οὐ λυσιτελεῖ παρασοφίζεσθαι τὸν ἰατρόν· οὐ γὰρ τοσοῦτο βλάπτει ἡ ἁμαρτία τοῦ ἰατροῦ ὅσον τὸ ἐθίζεσθαι ἀπειθεῖν τῷ ἄρχοντι.
And that in the other arts it is not beneficial to try to be cleverer than the physician; for the error of the physician does not do so much harm as the habit of disobeying the authority.
καὶ ὅτι τὸ τῶν νόμων σοφώτερον ζητεῖν εἶναι, τοῦτʼ ἐστὶν ὃ ἐν τοῖς ἐπαινουμένοις νόμοις ἀπαγορεύεται.
And that to seek to be wiser than the laws is exactly what is forbidden in well-esteemed laws.
καὶ περὶ μὲν τῶν νόμων οὕτως διωρίσθω·
Concerning laws, then, let things be defined in this way.
§1.15.13περὶ δὲ μαρτύρων, μάρτυρές εἰσιν διττοί, οἱ μὲν παλαιοὶ οἱ δὲ πρόσφατοι, καὶ τούτων οἱ μὲν μετέχοντες τοῦ κινδύνου οἱ δʼ ἐκτός.
Concerning witnesses, there are two kinds: ancient and recent; and of the latter, some share in the danger, while others are outside of it.
λέγω δὲ παλαιοὺς μὲν τούς τε ποιητὰς καὶ ὅσων ἄλλων γνωρίμων εἰσὶν κρίσεις φανεραί, οἷον Ἀθηναῖοι Ὁμήρῳ μάρτυρι ἐχρήσαντο περὶ Σαλαμῖνος, καὶ Τενέδιοι ἔναγχος Περιάνδρῳ τῷ Κορινθίῳ πρὸς Σιγειεῖς, καὶ Κλεοφῶν κατὰ Κριτίου τοῖς Σόλωνος ἐλεγείοις ἐχρήσατο, λέγων ὅτι πάλαι ἀσελγὴς ἡ οἰκία· οὐ γὰρ ἄν ποτε ἐποίησε Σόλων
"
εἰπεῖν μοι Κριτίᾳ πυρρότριχι πατρὸς ἀκούειν. "
By ancient witnesses I mean both the poets and all other famous men whose judgments are known; as the Athenians used Homer as a witness concerning Salamis, and the Tenedians recently used Periander of Corinth against the Sigeians, and Cleophon used the elegiacs of Solon against Critias, saying that his family had long been dissolute; for otherwise Solon would never have written: "Tell red-haired Critias to listen to his father.
§1.15.14περὶ μὲν οὖν τῶν γενομένων οἱ τοιοῦτοι μάρτυρες, περὶ δὲ τῶν ἐσομένων καὶ οἱ χρησμολόγοι, οἷον Θεμιστοκλῆς ὅτι ναυμαχητέον, τὸ ξύλινον τεῖχος λέγων. ἔτι καὶ αἱ παροιμίαι, ὥσπερ εἴρηται, μαρτύριά εἰσιν, οἷον εἴ τις συμβουλεύει μὴ ποιεῖσθαι φίλον γέροντα, τούτῳ μαρτυρεῖ ἡ παροιμία,
"
μήποτʼ εὖ ἔρδειν γέροντα,
"
καὶ τὸ τοὺς υἱοὺς ἀναιρεῖν ὧν καὶ τοὺς πατέρας,
"
νήπιος ὃς πατέρα κτείνας υἱοὺς καταλείπει.
"Concerning the past, then, such are the witnesses, but concerning the future, soothsayers also are witnesses; as Themistocles said that they must fight at sea, referring to the "wooden wall." Moreover, proverbs also, as has been said, are testimonies; for example, if anyone advises not to make an old man a friend, the proverb bears witness to this: "Never do good to an old man "and as for killing the sons whose fathers one has killed: "Foolish is he who, having slain the father, leaves the sons behind.
"
"