Examination by torture is one form of evidence, to which great weight is often attached because it is in a sense compulsory. Here again it is not hard to point out the available grounds for magnifying its value, if it happens to tell in our favour, and arguing that it is the only form of evidence that is infallible; or, on the other hand, for refuting it if it tells against us and for our opponent, when we may say what is true of torture of every kind alike, that people under its compulsion tell lies quite as often as they tell the truth, sometimes persistently refusing to tell the truth, sometimes recklessly making a false charge in order to be let off sooner. We ought to be able to quote cases, familiar to the judges, in which this sort of thing has actually happened. [We must say that evidence under torture is not trustworthy, the fact being that many men whether thick-witted, tough-skinned, or stout of heart endure their ordeal nobly, while cowards and timid men are full of boldness till they see the ordeal of these others: so that no trust can be placed in evidence under torture.]
In regard to oaths, a fourfold division can be made. A man may either both offer and accept an oath, or neither, or one without the other-that is, he may offer an oath but not accept one, or accept an oath but not offer one. There is also the situation that arises when an oath has already been sworn either by himself or by his opponent.
If you refuse to offer an oath, you may argue that men do not hesitate to perjure themselves; and that if your opponent does swear, you lose your money, whereas, if he does not, you think the judges will decide against him; and that the risk of an unfavourable verdict is prefer, able, since you trust the judges and do not trust him.
If you refuse to accept an oath, you may argue that an oath is always paid for; that you would of course have taken it if you had been a rascal, since if you are a rascal you had better make something by it, and you would in that case have to swear in order to succeed.
Thus your refusal, you argue, must be due to high principle, not to fear of perjury: and you may aptly quote the saying of Xenophanes, 'Tis not fair that he who fears not God should challenge him who doth.
It is as if a strong man were to challenge a weakling to strike, or be struck by, him.
If you agree to accept an oath, you may argue that you trust yourself but not your opponent; and that (to invert the remark of Xenophanes) the fair thing is for the impious man to offer the oath and for the pious man to accept it; and that it would be monstrous if you yourself were unwilling to accept an oath in a case where you demand that the judges should do so before giving their verdict. If you wish to offer an oath, you may argue that piety disposes you to commit the issue to the gods; and that your opponent ought not to want other judges than himself, since you leave the decision with him; and that it is outrageous for your opponents to refuse to swear about this question, when they insist that others should do so.
Now that we see how we are to argue in each case separately, we see also how we are to argue when they occur in pairs, namely, when you are willing to accept the oath but not to offer it; to offer it but not to accept it; both to accept and to offer it; or to do neither. These are of course combinations of the cases already mentioned, and so your arguments also must be combinations of the arguments already mentioned.
If you have already sworn an oath that contradicts your present one, you must argue that it is not perjury, since perjury is a crime, and a crime must be a voluntary action, whereas actions due to the force or fraud of others are involuntary. You must further reason from this that perjury depends on the intention and not on the spoken words. But if it is your opponent who has already sworn an oath that contradicts his present one, you must say that if he does not abide by his oaths he is the enemy of society, and that this is the reason why men take an oath before administering the laws. 'My opponents insist that you, the judges, must abide by the oath you have sworn, and yet they are not abiding by their own oaths.' And there are other arguments which may be used to magnify the importance of the oath. [So much, then, for the 'non-technical' modes of persuasion.]
