THERE are two very distinct senses, applied by Quinctilian to the term confutation. In one of which it has reference only to judicial trials, and in the other it is adapted to every form of public speaking. By confutation it appears, that in the Roman courts of his age was understood what in ours we call the defence [sic] of a cause. And in this sense the confutation was exclusively confined to one of the parties, the defendant. The other signification was that, which the word now bears; and generally meant the answer to an adversary’s allegations. There is indeed a natural coincidence between the two meanings of the word, since the whole task of a defendant before the tribunals of justice must be to resist some charge brought against him, and since the altercation of contested points in every other mode of oratory must in its principles be managed, as in the conflicts of jurisprudence. All the topics of argument, which may be used for the purpose of confirmation, are equally suited to confutation; and here lies the most difficult part of every cause. So long as your antagonist is out of sight and out of hearing, the field of controversy must be your own. But here is the “tug of war.” Here is the touchstone of your powers. Here it is that you have only the alternative of victory or defeat. And there are some particulars, in which a defendant cannot enjoy advantages equal to those of the plaintiff. He is more restricted in his resources, and requires a greater versatility of talents. Accusation isn't simple; the mode of advancing the charge is uniform, and its truth alone is to be established. But the defendant, as occasion offers, may deny, or justify, or excuse, or extenuate. He may sometimes assume the defiance of scorn, and sometimes humble himself to intreaty [sic]. The plaintiff has the time for premeditation at his own command. The defendant must often meet and repel the charge without any indulgence or preparation. The plaintiff knows the extent of what he is to prove, and may know how far his witnesses will support him. The defendant must always adapt his refutation to the case, often without knowing what the testimony will be, until the moment, when it is brought to bear against him. It has therefore been remarked, that very moderate abilities are sufficient to qualify an accuser, but that eminence in defensive practice could be obtained only by the brightest endowments of eloquence; and Quinctilian gives it as his deliberative opinion, that accusation is as much easier than defence [sic], as it is easier to inflict, than to heal a wound.
Let us then consider confutation successively under both its meaning; first as applicable to the practice of the bar alone; and secondly as the function of repelling arguments.
It is impossible to prescribe and useful rules of eloquence for an orator at the bar in our country, without directing his first attention to that system of pleadings, which I have so often mentioned in these lectures. You remember I have heretofore told you, that every judicial cause with us undergoes in substance a double trial; the one in writing by the means of pleading, the other oral by testimony and argument. That the forms of pleading are constructed upon the principles of the profoundest logic, and are intended to bring the controversy between the parties into the narrowest possible compass. Now that part of the pleadings, by means of which the plaintiff or accuser is authorised [sic] to summon the defendant before the judge, is called the declaration; which, as I have told you, contains the plaintiff’s narration of his case, and his charge against the defendant. And when he, in obedience to the summons, comes in the court, he may place his confutation or defence [sic] upon one of four distinct grounds. First he may take exception to the forms of the plaintiff’s proceeding, or to the jurisdiction of the court, by a plea of abatement. Secondly he may dispute the right of the plaintiff dispute the right of the plaintiff to prosecute his action at all, by a plea in bar. Thirdly he may take issue upon the facts, and put them upon trial by jury. And fourthly he may admit the facts, the jurisdiction of the court, and the plaintiff’s right to sue; but deny that he has shown by his own story any breach of the law, for which the defendant [sic] ought to answer. This is done by a demurrer to the declaration. In all these cases, excepting that of the issue upon the facts, the pleadings being closed, the argument of the cause is held before the judges and decided by them.
When the defendant [sic] has chosen his ground of defence [sic], the other party must reply. If the issue is joined upon the facts, the argument to the jury commences immediately. The plaintiff is bound first to make good his charge, for which he produced his testimony and his reasoning. The defence [sic] must be adapted to the form of proceeding. The plaintiff often produces evidence, against which the other party objects as not legally admissible. There are a great variety of causes, which disqualify a witness from being received to testify in particular cases; and there are many others, which are considered as weakening the force of testimony, without altogether destroying it. Hence the distinction between the competency and the credibility of a witness. A husband and wife for example are not competent witnesses either for or against each other. Their testimony cannot be received. But a father and child are competent witnesses. Their evidence when offered cannot be rejected; but it is in the sober and honest discretion of the jury to determine how far they will give credit to testimony, which in the ordinary course of nature is so likely to be under bias of partiality. The objections against testimony, with the variety of forms under which those objections may be urged, to the judges upon questions of competency, and to the jury upon points of credibility, together with the art of examining and cross-questioning witnesses to elicit from them every truth favorable to his cause, constitute unquestionably the most arduous task, and the most difficult duty of a practical lawyer. But I can here only signify its importance to you. To pursue the subject into that detail, which is indispensable to the professional advocate, would be to anticipate your future studies.
If the issue of the cause be taken upon a point of law, the defence [sic] must be conducted upon principles entirely different. In such cases there is no examination of witnesses, The controversy turns upon the law and its construction; and the reasoning is restricted to inquiries, what the law is, and what is its application to the cause upon trial. The determination is variously governed by those principles of natural justice and those immemorial usages, which constitute the body of the common law, by the statutes of the legislative authority, or by the precedents of previous adjudications. If neither of these should bear with direct and literal proof upon the cause (for when they do the scales of justice are immediately turned, and the suit is decided), the reasoning must be from analogy; and the defendant [sic], as well as the plaintiff, must recur to all those resources of ratiocination and of induction, upon which I so largely dwelt in my two preceding lectures.
Here we return again to the second and more generally received sense of the term confutation; the sense in which it is understood, when arranged as the fourth in order of the parts, composing a regular discourse, the reply to an adversary’s arguments. In this sense it is equally used by both the parties to a suit at law; by all, who take a part in public deliberations; and even by the demonstrative and pulpit orators, although they have no antagonist immediately before them. Some of the ancient rhetoricians indeed excluded this part from their model of demonstrative orations on that account. But, if it is to be distinguished from the confirmation in any case, it may be as necessary to a panegyric, as to an issue at the bar. Confutation is not limited to what the antagonist has actually said. It must often be extended to what he will and even to what he may say. Argument is not always necessary in a laudatory discourse; but wherever it can be required at all, it unavoidably supposes an obstacle express or implied to be overcome. Panegyric, wherever it is deserved, will certainly require vindication, as well as celebration. The great and heroic characters of every age and nation have generally lived in a continual struggle with a great proportion of mankind. Their principle merit often consists in the firmness, perseverance, and fortitude, with which they bear up against the torrent of opposition from their fellow mortals. The tempest of obloquy rages against them not only throughout their lives, but often redoubles its fury for centuries after their earthly career is closed.
Sure fate of all, beneath whose rising ray
Each star of meaner merit fades away!
Oppress’d we feel the beam directly beat;
Those suns of glory please not till they set
POPE, EP. TO AUG.
Nor are the malignant passions of mankind, which are always arrayed in such formidable strength against talents and virtue, more destitute of cunning than of violence. They have plausible pretexts, as well as deadly weapons. The most dangerous of all errors are those, which are clothed in reason’s garb. The best of men are not only often exposed to the worst of imputations, but, from the artifices with which they are propagated, to be robbed of that greatest of all earthly blessings, the good opinion of the virtuous and the wise. A panegyrical orator may often be called, in the discharge of his duty, to defend the character of his hero against prevailing prejudices; and may sometimes find it necessary to palliate and concede. Argument then will find its place in the course even of a demonstrative oration, and that argument will most commonly be of confutation.
The modes of confutation should be adapted to those of the reasoning, against which they are opposed. In the syllogistic form the confutation consists in the direct denial either of the major or minor propositions, or of the accuracy of the conclusion, drawn from them. If either of the propositions be denied, it must be disproved also by a syllogism; but if the conclusion do [sic] not follow from the premises, it is sufficient barely to state the deficiency by a denial. An error in the premises does not necessarily prove bad reasoning. There may be a mistake in either of them, without any fault of the speaker. But whether the premises be true or false, an erroneous conclusion must arise from a fault in the process. It must be the fault of the speaker. From a major and minor proposition, correctly stated, only one conclusion can be drawn; and every other must be defective. This principle extends also to every species of oratorical ratiocination. But whether the validity of the foundation or the firmness of the superstructure be questioned, the orator must confute by reasoning. The epichirema may be attacked in either of its propositions, or in the reasons by which either of them is supported, or in the conclusion inferred from them. And the conclusion may be shown either to be not accurately drawn, or not to bear upon the real question in debate. The same latitude must be allowed to the refutation of the enthymem. Enumeration is refuted by pointing out the part, which is necessary to make it complete; a sign, by contesting a conexion [sic] with the thing, alledged [sic] to be signified. And as all inductive reasoning proceeds on the basis of similitude, the most effectual mean of opposition against it is the exposure of unlikeness. In all oratorical controversy, reason is the common auxiliary to both parties; and the general direction to him, whose cause is defensive, must be to turn to his own advantage every defect, that he can discover in the argument of his adversary.
To qualify him for this purpose, one of his most indispensable faculties must be a readiness to perceive by a rapid glance the strength and the weakness of his opponent's ground. I have repeatedly urged upon you the importance of this to every public speaker, as well as to the hearers of public discourses. But to no one is it so directly and vitally necessary, as to him, who is charged with the task of confutation; since this can never be accomplished until he has distinctly ascertained what he is to confute.
The poet, Juvenal, who was himself a teacher of rhetoric, seems, in a passage of his seventh satire, where he speaks of his profession, to consider the whole science as included in this.
Quis color, et quod sit causae genus, atque ubi summa
Quaestio, quae veniant diversâ parte sagittae,
Nosse velint omnes.
No dunce of all his pupils but would learn
The various forms of causes to discern,
The issue’s point with piercing ken to pry,
And whence th’ opponent’s keenest shafts will fly.
The difficulties, which in all controversy beset this inquiry, are aggravated at the bar by the suddenness, in which the question often presents itself, and the rapidity, with which the judgment must be formed. To acquire this talent in its highest perfection the most laborious industry of the student must be aided by experience of long practice in the profession. There are however three very common errors in the management of controversy, against which I think it proper here to guard you, and from which I hope you will hereafter very sedulously guard yourselves. The first may be termed answering too much; the second answering too little; and the third answering yourself, and not your opponent. You answer too much, when you make it an invariable principle to reply to every thing, which has been or could be said by your antagonist on the other side. This is as if at the eve of a battle a general should send for a re-enforcement of women and children, to increase his numbers. If you contend against a diffuse speaker, who has wasted hour after hour in a lingering lapse of words, which had little or no bearing upon the proper question between you, it is incumbent upon you to discriminate between that part of his discourse which was pertinent, and that which was superfluous. Nor is it less necessary to detect the artifice of an adversary, who purposely mingles a flood of extraneous matter with the controversy, for the sake of disguising the weakness of his cause. In the former of these two cases, if you undertake to answer every thing that has been said, you charge yourself with all the tediousness of your adversary, and double the measure by an equal burden of your own. In the latter you promote the cause of your antagonist, by making yourself the dupe of his stratagem. If then you have an opponent, whose redundancies arise only from his weakness, whose standard of oratory is time, and whose measure of eloquence is in arithmetical proportion tot he multitude of his words, your general rule should be to pass over all his general, unappropriated declamation in silence; to take no more notice of it, than if it had never been spoken. But if you see that the external matter is obtruded upon the subject with design, to mislead your attention, and fix it upon objects different from that, which is really at issue, you should so far take notice of it, as to point out the artifice, and derive from it an argument of the most powerful efficacy to your own side. This species of management is not always discovered, though it is one of the most ordinary resources of sophistry. One of the surest tests, by which you can distinguish it from the dropsical expansions of debility, is by its livid spots of malignity. It flies from the thing to the person. It applies rather to your passions, than to those of your audience. Knowing that anger is rash and undiscerning, it stings you, that it may take off" your feelings, your reason, and your active powers from the post you are defending to your own person. To a speaker, who has not acquired a perfect control over himself, it is a dangerous snare; but it is almost infallibly the characteristic of a bad cause. The defence [sic] against it is to make its design manifest, and expose it as a deception, practised [sic] upon the judgment of the audience; which, when performed with coolness and address, powerfully conciliates their favor to you, and instigates their resentment against your opponent. In accomplishing this you may at your option reply to such adventitious matter, or dismiss it with contempt or disdain.
In the letters of Junius there are two remarkable examples of this disingenuous artifice, which were not both attended with the same success. They are apparent in the controversies with Sir William Draper, and with Mr. Horne. In his first letter, among the public characters, whom Junius attacked, was that of the Marquis of Granby. Sir William Draper undertook the defence [sic] of that nobleman by a letter, which he published in the newspapers, and signed with his name. The defence [sic] was not so good in execution, as in design. The Marquis of Granby was a character generally respected and beloved. The extreme violence, with which he was attacked for some abuses in the army, not fairly imputable to him, had disgusted many of those, who most admired every other part of Junius’ first letter. But Sir William Draper defended him upon questionable grounds. Junius in his reply takes every possible advantage of his adversary’s weakness; but conscious that after all he was wrong on the contested point, he turns with his own inimitable fury of invective upon Sir William Draper himself. Draper, with all the ardent feeling and all the unwary simplicity of a soldier, fell into the snare, thus cunningly laid to entrap him; abandoned in a great measure the post, in support of which he had first taken arms, and wasted all the remnant of his strength in an equally fruitless defence [sic] of himself.
The same system of assault was pursued against Horne; but Horne was more upon his guard, and had higher controversial powers at command. The attack of Junius was against Horne himself. It was a feeble ebullition of passion; charging Horne with having sold himself to the ministry, without the shadow of a proof to support the charge. Horne immediately came out with a precise and flat denial, put the question at issue, and called upon Junius for his proof or his apology. Junius, well knowing that he had no proof to produce, and deterred either by a false shame or by the same passion, which had first instigated the charge, from making the apology, endeavours [sic] to intimidate Horne by an insulting and abusive private letter, which he tells him is not intended for the public, but which he at the same time defies him to publish. Here we see an awkward attempt by the same act to cover a retreat and to claim the victory. In this letter the charge of corruption was renewed; but it was coupled with a wavering hesitation, an anxious and elaborate attempt to substitute another charge in its stead, and a real reluctance at continuing the controversy before the public, disguised under an affected contempt for Horne’s situation and abilities.
Horne published the letter and his reply to it at the same time. He exposed its inconsistencies and absurdities. His defence [sic] of himself was complete. But he made his letter too long. He entered too much into the discussion of points, which Junius had endeavoured [sic] to crowd into the dispute for the very purpose of drowning the real issue. Junius rejoined in one of his most highly polished productions; exhausted all the powers of his mind upon the extrinsic matter alone, and said not one word about his charge of corruption, upon which alone the whole controversy had arisen. Horne’s concluding letter triumphantly remarks this, and exults rather more than was wise, though not more than was natural, at the event of the trial.
In both these cases I refer you to Junius for examples of the artifice, which flies from the point in controversy to external or collateral matter; and to his two antagonists for instances of disputants, who answer too much; on the part of Sir William Draper to the utter ruin of his cause; on that of Horne to the loss of some foliage in his laurels. If you would judge for yourselves of the accuracy of my remarks, you must attentively peruse the whole of the two correspondences, without reference to the style, or to any beauties or deformities of detail. In these respects unquestionably neither Horne nor Sir WIlliam Draper can bear a comparison with Junius.
The second error in controversy, against which I am anxious of warning you, is that of answering too0 little. It is not unfrequently [sic] found united with that, against which I have last admonished you. When too much of our strength is lavished upon the outworks, the citadel is left proportionally defenceless [sic]. If we say too much upon points extrinsic to the cause, we shall seldom say enough upon those, on which it hinges. To avoid this fault therefore it is as essential to ascertain which are the strong parts of your adversary’s argument, as it is to escape the opposite error of excess. To this effect it is also a duty of the first impression to obtain a control over your own prejudices and feelings. Nothing is so sure to blind us to the real validity of the reasons alledged [sic] against us, as our passions. It is so much easier to despise, than to answer an opponent’s argument, that wherever we can indulge our contempt, we are apt to forget that it is not refutation. There is little danger of this at the bar, because, having there seldom any security other than the strength of our cause, we can never mistake the power of a reason, adduced against us, but at our own peril. If we substitute petulance or scorn for logic, the verdict of the jury or the sentence of the court will soon correct our misapprehensions. It is in deliberative assemblies, when party spirit has acquired an overruling ascendancy, that this species of perverseness most frequently makes its appearance. When operating in its utmost extent upon majorities, it ends in what are termed silent votes; when upon minorities, it produces secessions; both of which destroy the deliberative character of the assembly. It has sometimes happened in the parliamentary history of other nations, and is not unexampled in our own, that majorities, in the exultation and abuse of their power, have affected to carry their measures in defiance of all discussion; and, without attempting to refute any objection, reply to their antagonists only by a vote. On the other hand minorities have sometimes been so certain that they could not prevent the adoption of a measure, by any reasoning or eloquence, that they have withdrawn in bodies from the assembly, and renounced all pretence of discussion. In the expedients of party management these extremes may possibly sometimes be justifiable; but they are much more symptomatic of violent faction, than of prevailing reason. But the same disposition, which leads to these extremes, perpetually urges deliberative orators to underrate the power of their opponents; and misguides the judgment in the estimate of their arguments. A speaker, sure of being in the majority when the vote comes to be taken, has a constant stimulus to subdue argument by arrogance, and to shield his inability to answer with disdain. An orator, certain of appearing in the minority upon the question, is discouraged from exerting that energy, which he knows must be ineffectual; and leaves the apparent triumph of reason, to follow the real victory of suffrage. In both there cases they answer too little; a fault, into which I hope none of you will ever suffer yourselves to be betrayed by the insolence of conscious strength, or the despair of conscious weakness. But the most inexcusable of all the errors in confutation is that of answering yourself, instead of your adversary; which is done whenever you suppress, or mutilate, or obscure, or misstate, his reasoning, and then reply not to his positions, but to those, which you have substituted in their stead. This practice is often the result of misapprehension, when a disputant mistakes the point of the argument, urged by his adversary; but it often arises also from design; in which case it should be clearly detected and indignantly exposed. The duty of a disputant is fairly to take and fully to repel the idea of his opponent, and not his own. To misrepresent the meaning of your antagonist evinces a want of candor, which the auditory seldom fail to perceive, and which engages their feelings in his favor. When involved in controversy then, never start against yourself frivolous objections for the sake of showing how easily you can answer them. Quinctilian relates an anecdote of the poet Accius, which every controversial writer or speaker will do well to remember. Accius was a writer of tragedies, and being once asked why he, whose dialogue was celebrated for its energy, did not engage in the practice of the bar, answered, because in his tragedies he could make his characters say what he pleased; but that at the bar he should have to contend with persons, who would say any thing but what he pleased. There can be no possible advantage in supposing our antagonist a fool. The most probable effect of such an imagination is to prove ourselves so.
We have now gone through the consideration of that most important of all the parts of a discourse, the proof. We have investigated its nature in both its branches; of confirmation and of confutation. With respect to the order, in which they are to be adduced, the ancient precepts and the modern practice make it follow the natural order of accusation and defence [sic]. The plaintiff first brings forth his confirmation, and canvasses objections afterwards. The defendant pursues an inverted order. In the arrangement of our proofs we are directed to imitate the principles, upon which armies are arrayed for battle; to place our strongest arguments in the front and the rear, and inclose those of untested courage and doubtful fidelity in the centre [sic]. But for the purposes of conviction the station, in which your arguments are posted, is far less important, than their quality. They are to be estimated by their weight, and not by their numbers. Their efficacy may depend upon the manner, in which they are presented. They are never averse, and seldom inaccessible to ornament. But strength is the touchstone of their existence; and there is perhaps no question so intricate, but that for its decision we may say in the familiar language of the poet, that
Where one’s proofs are aptly chosen
Four are as valid, as four dozen.