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effort, and industry, as well as sedulous, severe, and solitary study, are required. Of the genuine forensic mind it may be truly said :
* All things within it Are so digested, fitted, and composed,
As it shows Wit had married Order." Forensic skill is not forensic eloquence. These often exist apart. A natural ingenuity of mind, assiduously subjected to careful culture, when employed in the conducting of a case involving great principles, or possessed of intrinsic elements of interest, may often display forensic skill, and even simulate, or-let us say-achieve, forensic eloquence. But this depends much more upon the case than upon the pleader. Less interesting contests as to property or rights, though they might be carried on with as profound an insight into the principles of jurisprudence, and elicit as masterly a statement of the applicability of the statutes or precedents implied in the trial, would yet fall flat and unimpressively upon the minds addressed, compared to the manner in which they would affect them, if the advocate could add the arts of persuasion to those of conviction, and could reinforce the issues of his skill with the products of his eloquence. Eloquence adds beauty to strength, grace to merit, infuence to truth, effectiveness to force, attractiveness to good sense, interest to solid thought, and fits skill to achieve pleasantly what it has prepared to accomplish by dint of persistent and operose endeavour.
To think decidedly and to speak clearly; to know the requirements of courts and the forms of process; to possess as much selfconfidence as to plead without embarrassment, yet to be so free from self-conceit as to avoid offence; to have read with diligence & multitude of acts of parliament, the digests of legists, the decisions of judges, abstracts of cases, and specifications of styles; to have matured a habit of distinct definition; and to have settled into categories the various possibilities of civil, criminal, or other law important as these are-will not succeed in eliciting the compliment due to distinguished forensic ability :
" Persuasion tips his tongue whene'er be talks.” There is another set of studies to be mastered before the thrill of oratory can be employed to animate emotion, give effect to deft argument, and invincibility to intellectual force. To artistic precision of style, to perspicuity of thinking, to emphatic pertinence of argument, to thorough knowledge of law and acquiescence in its forms, there must be added the power of touching truth with the colours of imagination, of applying inducements to the will, and of stirring the sensitive feelings of the hearer. Thus alone is it possible
“ To rule, like a wizard, the world of the heart,
To call up its sunshine, or draw down its showers.” We do not depreciate skill in comparison with eloquence. We
appreciate it as essential and indispensable. We do not suggest the lessening of skill; we only advocate the addition of another element of skill to that already impliedly attained. Forensic eloquence is confessedly not always a concomitant of forensic ability, and our best
pleaders in law are not unfrequently our worst pleaders in speech. This does not result from any incompatibility between the possession of sound legal knowledge and ready facility in expression. It arises, more generally, from contempt for eloquence, as a subsidiary art, as a showy and fantastic acquisition, a simulating trickery, and an adventitious element in legal advocacy. This, we apprehend, is a misconception. Pleading is speech. Speech has its laws and forms, its graces and peculiarities, its processes and technicalities. If the instrument must be employed, the art of using it should be learned ; and to trust to mere chance management, when the right and true way may be readily acquired, is as absurd as it would be for one to act as he thought proper, and beliere it to be lawful and right-without attempting to distinguish between right and wrong;
Speech, as we have said, has been the subject of scientific culture. Its principles have been discovered, and their applicability has been tested. Speech as an instrument of persuasion has been much studied. The observations of many thinkers have been reduced to system, and formed into a science. There is a great likelihood that these deductions, arrived at by eminent minds, are in the main correct, and that conformity to the laws which they have laid down will lead to the right employment of language as a means of producing certain effects upon the mind, while disagreement with or neglect of them may conduce to the defeating of the ends in view in using speech.
Forensic eloquence is an adaptation of the principles and laws of persuasive utterance to the production, or at least the furtherance, of effective and successful advocacy in courts of law, in so far as such advocacy is regarded as having persuasion as its given purpose, and speech as the instrument employed in persuasion. The details of this secondary art depend upon certain subsidiary elements : as, for example, the nature of law and the constitution of its courts, in so far as they allow and provide for the exercise and employment of persuasion, the protection afforded to pleaders in the conducting of suits, the publicity or privacy in which the advocate conducts his case, &c. But the chief fundamental principles, maxims, and rules of the art are drawn from the purpose had in view in the institution of professional pleaders in the courts of law, and the duties which may be considered as incumbent upon such pleaders in their conjoint relationship to the law, and to the actual or possible clients in whose behalf they may appear in court.
Law is the guardian of civil society. It defines the rights, and determines the obligations of men. The safety and good order of every community depend on the majesty and magistracy of the law, which is, in the language of Burke, “beneficence acting by rule."
Law is the deliberate expression of the highest conception of duty to which a nation has attained. It prescribes the limits of individual activity, and sets bounds to the need of personal endurance. It marks and enforces the distinction between just and unjust; and, aecepting the ethical ideas of right and wrong as silent, but tangible powers among men, it establishes an order in their relationships which shall be at once availing and prevailing; for the enforcement and preservation of which it decrees an order of sequence between any transgression of the requirements of civil life, and the exaction or infliction of the penalties attached to each infringement.
Religion educates and exercises the conscience, morality regulates the will, and law governs the conduct or actions of men. Man, says Montesquieu, “is left to his own direction, though he is a limited being, subject, as all finite intelligences are, to ignorance and error; even the imperfect knowledge he possesses is blinded by his animal nature, and he is hurried along to evil by a thousand impetuous passions. Such a being might at any instant forget his Creator; God has, therefore, reminded him of his duty by the laws of religion. Such a creature is liable every moment to forget him. self; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures ; legislators have, therefore, by political and civil laws, constrained him to his duty;"* "Political society was formed,” according to Aristotle, “ that men might live, and it continues to exist that men may live happily.” In the spirit of this precept Bacon also affirms that “the purpose and scope of laws, whereto their decrees and sanctions ought to tend, is the happiness of the people,”-to effect which they must be clear and certain in their sense; just in their requirements; capable of accomplishment; in harmony with the form of government; and productive of virtue in the subject.”
Law is the word in which we sum up and name the whole of those dictates, to which communities consentingly submit, regarding right and wrong as these are expressed in the statutes and ordinances of the Government, interpreted in harmony with the history, manners, life, and religion of the people, the rules of right reason, and the current of public opinion. "All decrees having the force of law must, of course, be fixed in accordance with the usual forms of legislation, be promulgated in a fair and open manner, be ex. pressed in an explicit style, and have a clearly defined purpose. If they are enforceable by pains or penalties, these should be inflicted or exacted only on due proof of violation made before competent and properly constituted tribunals, sitting in formal oficial activity, and exercising their prescribed functions in the usual manner, and for their assigned purpose, i.e., in "fair and open court."
Law, in this sense, is not a mere mass of technical verbiage, or a tortuous complexity of details, a solemn juggle, or a state hypocrisy, a grotesque, deceptive mummery, or a licensed tyranny,
• " Spirit of Laws," book I., Chap. i.
a stiff and crabbed huckstering of power, or a stereotyped " delusion and snare,” but is “ a terror to eril doers, and a praise and protection to those who do well.”
Law has now become so pervasive as to affect all civil society, and to exert an influence upon each individual. The pertinence, applicability, and incidence of law interests all men, and few cases arise in which the question can be found so isolated as to affect no other matter than that involved in its own settlement. Society has a direct practical stake in almost every law suit, in the issues it raises, the arguments by which it is enforced or opposed, as well as in the decision, to which it furnishes the occasion. To have every question thoroughly pondered and duly discussed, to have the light of many minds thrown on it, to have it subjected to specific analysis, to have its “ bearings on men's duties and desires” con. sidered, and the nature and necessity of the claim advanced criticised, are advantageous to society; and hence it finds it useful to arrange the activities of its members, so that some may engage themselves as middle men between the law and the individuals of whom it is composed. To these the culture of forensic eloquence is left, and the critical consideration of the incidence of law on life is wisely mapped out as a province of human endeavour.
Laws may be either declaratory, directory, remedial, or prohibitive. The first class is expository, and its object is to instruct the subject regarding the requirements of the State in respect to specific actions or kinds of actions. The second class is prescriptive. It limits or extends the boundaries by which civil society encircles the free activity of the individuals who form its constituents. The third class provides against injuries, inconveniences, or wrongs, so far as they are preventible, by withdrawing restrictions on, or removing obstacles to, the free course and operation of justice and order. The fourth class forbids the omission of the duties of men as members of a civic union, or the commission of any (avoidable) injury to the persons composing the social confederation. This restrictive, evil hindering species of law is generally accompanied by some privitive or vindicatory provision, by the application of which observance of it is enforced. Indeed to all laws, more or less, the sanction of pains and penalties is attached, so that either by the deprivation of right, or by the infliction of retributory or reformatory suffering, on purse or person, obedience may be secured. Laws may be otherwise regarded as civil or criminal. Civil law provides for the defence of right and the redress of wrong, by the enforcement of restitution or compensation in actions or transactions between subject and subject. Criminal law brings under the punitive power of the State all persons charged with breach of duty, or violation of right, in matters which are regarded as public injuries ; that, on due inquisition being made, if the guilt charged on the alleged offender is proved, he may be proceeded against in accordance with the provisions of the statutes infringed. Many other subdivisions of law are also commonly spoken of; e.g., ecclesiastical, military, commercial, marine, &c., &c., all of which are reducible to the general definition, that they constitute a body of fixed rules for the procuring and securing of the rights and privi. leges of the obedient and deserving, and for the arrestment and suppression of offences, by the degradation or punishment of transgressors. All of them suppose and imply a generally acquiesced in standard of right, to which submission is proper, and insubordination wrong:
Seeing that human life is so embraced and permeated by law ; and that the complex relationships of men demand the continued arbitrement of judicial decisions on so many points of practical activity, the expediency of the institution of forensic pleading has been, as we have said, generally acquiesced in as an advisable, if not an essential, subdivision of civic activity; and hence, of course, bas arisen the need for a specific sort of eloquence-an oratory in which law, logic, and life should obtain united representation, be harmonized together, and be shewn to be mutually effective in the maintenance of the right, the good, and the true. This is the eloquence which in addresses to juries, in arguments before judges, in speeches to parliamentary commissions, or the loftiest courts of human appeal—such as the House of Lords-vindicates at once the majesty of justice and the rights of man ; invokes the retribution, or supplieates the leniency of society; or brings under the protection of the State the innocent and unoffending, or tears from the pride of place and power the transgressor against the interests, the poliey, or the institutions of civil society.
The foregoing remarks on law and its processes are made by a person unskilled in professional knowledge. They embody the results at which he has arrived after the perusal of a considerably extensive quantity of jurisprudential and legal literature-not expressly technical. In their general effect he believes they may be regarded as conformable to the teachings on the same points found in juristic writers. This, however, as it seems to him, is a matter of minor importance. In this series of papers law is regarded as a system of means for the attainment of certain ends; and forensic eloquence forms only one of the means by which the law is brought to bear upon the personal interests of men in the enforcement or modification of enactments, duties, or sanctions. The observations to be made are to be understood, as in some sort, those of a rhetorician, and not of a legist. We do not attempt to offer a philosophy of law; but only an exposition of the principles which lie at the foundation of the oratory employed in forensic disputation, or in the course of the actual administration of law as it is.
Forensic oratory has laws and principles of its own. Of these we must form correct estimates before we can thoroughly comprehend the necessity for constructing a special rhetorie for use at the bar, or appreciate the peculiar requirements of judicial oratory. Popular parliamentary or pulpit eloquence is either presentative or representative, either enlarges upon and explains some thought which