¶ The confutacion is the soilynge and re- fellyng of other me[n]nes sayeng[e]s that haue or might be brought against our purpose / wherefore it consisteth in places contrary to the places of confirmacio[n] / as in p[ro]uyng the sayenges of the contrary part / neither to be honest nor profitable / nor easy to per- forme / or els vtterly impossible.
¶ The conclusion standeth in two thyn- ges / that is is to say / a briefe and compen- diouse repetyng of all our reasons that we haue bronght for vs afore / and in mouyng of 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 longe to controuersies in the lawe and plees / which kynde of oracion in olde tyme longed onely to Iudges & men of law / but now for the more parte it is ne- glecte of them / though there be nothynge more necessarye to quicken them in crafty and wyse handelynge of theyr maters.
¶ In these oracions the fyrste is to fynde out the state of the cause / whiche is a short proposicion / conteynynge the hole effect of all the controuersies. As in the oracion of [D.vii.r] Tulli / made for Milo / of y^e which I made mencion in the begynnynge of my boke. The state of the cause is this. Milo slewe Clodius lawfully / whiche thynge his ad- uersaries denyed / and yf Tully can proue it / the plee is wonne.
¶ Here must be borne away that there be thre maner of states in suche oracions.
¶ The fyrst is called coniecturall. The se- conde / legitime. The thirde / iudiciale / and euery of these hathe his owne proper pla- ces to fet out argumentes of them / where- fore they shall be spoken of seuerally. And fyrste we wyll treate of state coniecturall / whiche is vsed whan we be certayne that the dede is done / but we be ignorant who dyd it / and yet by certayne coniectures we haue one suspecte / that of very lykelyhode it shulde be he that hathe commytted the cryme. And therfore this state is called con[-] iecturall / bicause we haue no manifest p[ro]fe / but all onely great lykelyhodes / or as the Rhetoriciens call them / coniectures.
THere was a great contencion in the Grekes army afore Troye betwene Ulisses and Aiax / after the dethe of Achil- les / which of them shulde haue his armour as nexte to the sayd Achilles in valiaunt- [D.vii.v] nes. In whiche controuersye whan the Grekes had Iuged the sayd armour vnto Ulisses / Aiax for very great disdayne fell out of his mynde / & shortly after in a wode nygh to the hooste / after he had knowen (whan he cam agayne to hym selfe) what folyssh prankes he had played in the tyme of his phrenesy / for sorow & shame he slewe hym selfe. Sone vpon this dede cam Ulis- ses by / whiche seynge Aiax thrust thrughe with a swerde: cam to hym / and as he was about to pull out the swerd / the frendes of Aiax chau[n]ced to com the same way / which seynge theyr frende deed / and his olde ene- my pullyng out a swerde of his body / they accused hym of murder.