The man who refuses to accept his opponent's offer to take an oath, will allege that the inequality of their respective conditions are not the same for both parties and will point out that many persons are not in the least afraid of committing perjury, even philosophers having been found to deny that the gods intervene in human affairs; and further that he who is ready to take an oath without being asked to do so, is really proposing to pass sentence on his own case and to show what an easy and trivial thing he thinks the oath which he offers to take.

On the other hand the man who proposes to put his opponent on oath appears to act with moderation, since he is making his adversary a judge in his own case, while he frees the actual judge from the burden of coming to a decision, since the latter would assuredly prefer to rest on another man's oath than on his own.

This fact makes the refusal to take an oath all the more difficult, unless indeed the affair in question be of such a nature that it cannot be supposed that the facts are known to the person asked to take the oath. Failing this excuse, there is only one course open to him: he must say that his opponent is trying to excite a prejudice against him and is endeavouring to give the impression that he has real ground for complaint though he is not in a position to win his case; consequently, though a dishonest man would eagerly have availed himself of the proposal, he prefers to prove the truth of his statements rather than leave a doubt in anyone's mind as to whether he has committed perjury or no.

But in my young days advocates grown old in pleading used to lay it down as a rule that we should never be in a hurry to propose that our opponent should take an oath, just as we should never allow him the choice of a judge The choice of the single iudex in civil cases rested with the plaintiff, though the defendant had the right to refuse the person proposed. nor select our judge from among the supporters of the opposite side: for if it is regarded as a disgrace to such a supporter Not an actual advocate, but a supporter and adviser on points of law. to say anything against his client, it is surely a still worse disgrace that he should do anything that will harm his client's case.

It is, however, the evidence that gives the greatest trouble to advocates. Evidence may be given either in writing or orally by witnesses present in court. Documentary evidence is easier to dispose of. For it is likely that the deponent was less ashamed of himself in the presence of a small number of witnesses, and his absence from court is attacked as indicating a lack of confidence. If we cannot call the character of the deponent in question, we may attack the witnesses to his signature.

Further there is always a certain tacit prejudice against documentary evidence, since no one can be forced to give such evidence save of his own free will, whereby he shows that he harbours unfriendly feelings towards the person against whom he bears witness. On the other hand an advocate should be chary of denying that a friend may give true evidence against a friend or an enemy against an enemy, provided they are persons of unimpeachable credit. But the subject admits of copious discussion, from whichever side it be regarded.

The task of dealing with the evidence of witnesses present in court is, however, one of great difficulty, and consequently whether defending or impugning them the orator employs a twofold armoury in the shape of a set speech and examination. Interrogatio includes both the examination in chief and cross-examination. In set speeches it is usual to begin with observations either on behalf of or against witnesses in general.

In so doing we introduce a commonplace, since one side will contend that there can be no stronger proof than that which rests on human knowledge, while the other, in order to detract from their credibility, will enumerate all the methods by which false evidence is usually given.

The next procedure is the common practice of making a special attack, which all the same involves impugning the validity of evidence given by large numbers of persons. We know, for instance, that the evidence of entire nations e.g. in cases of extortion, where a whole province might give evidence against the accused. and whole classes of evidence have been disposed of by advocates. For example, in the case of hearsay evidence, it will be urged that those who produce such evidence are not really witnesses, but are merely reporting the words of unsworn persons, while in cases of extortion, those who swear that they paid certain sums to the accused are to be regarded not as witnesses, but as parties to the suit.

Sometimes however the advocate will direct his speech against single individuals. Such a form of attack may be found in many speeches, sometimes embedded in the speech for the defence and sometimes published separately like the speech against the evidence of Vatinius. Vatinius had appeared as a witness against Sestius, who was defended by Cicero.

The whole subject, therefore, demands a thorough investigation, as the task which we have in hand is the complete education of an orator. Otherwise the two books written on this subject by Domitius Afer would suffice. I attended his lectures when he was old and I was young, and consequently have the advantage not merely of having read his book, but of having heard most of his views from his own lips. He very justly lays down the rule that in this connexion it is the first duty of an orator to make himself thoroughly acquainted with the case, a remark which of course applies to all portions of a speech.

How such knowledge may be acquired I shall explain when I come to the appropriate portion of this work. XII. viii. This knowledge will suggest material for the examination and will supply weapons ready to the speaker's hand: it will also indicate to him the points for which the judge's mind must be prepared in the set speech. For it is by the set speech that the credit of witnesses should be established or demolished, since the effect of evidence on the individual judge depends on the extent to which he has been previously influenced in the direction of believing the witness or the reverse. And since there are two classes of witnesses In civil cases evidence was as a rule voluntary; in criminal cases the accuser might subpoena witnesses, while the defence was restricted to voluntary testimony.

those who testify of their own free will and those who are summoned to attend in the public courts of whom the former are available to either party, the latter solely to the accusers, we must distinguish between the duties of the advocate who produces witnesses and the advocate who refutes them.

He who produces a voluntary witness is in a position to know what he is likely to say: consequently the task of examining him would seem to be rendered easier. But even here such cases make a great demand on the acumen and watchfulness of the advocate, who must see that his witness is neither timid, inconsistent nor imprudent.

For the opposing counsel have a way of making a witness lose his head or of leading him into some trap; and once a witness trips, he does more harm to his own side than he would have done good, had he retained his composure and presence of mind. The advocate must therefore put his witnesses through their paces thoroughly in private before they appear in court and must test them by a variety of questions such as may well be put to them by his opponent. The result will be that they will not contradict themselves or, if they do make some slip, can be set upon their feet again by a timely question from the advocate who produces them.

Still, even in the case of witnesses whose evidence is consistent, we must be on our guard against treachery. For such witnesses are often put up by one's opponent and, after promising to say everything that will help our case, give answers of exactly the opposite character and carry more weight by the admission of facts which tell against us than they would have done had they disproved them.