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stirs the speaker's mind, or states and demonstrates the ideas entertained by large bodies of people. The pleader does not appear in court to express his own independently formed convictions, nor does he even appear as the mouthpiece and retailer of the wishes of his client. He is neither entirely a representative, nor wholly a substitute. He takes his professional place as a sort of compound personality. He attends, it is true, to say, do, quirk, and tack about, with every faculty of his mind, as his client would be entitled to do if able; but he also appears as counsel for his client, with responsibilities, as such, to the court, his profession, the law, and public opinion, as well as to the person in whose behalf he appears as advocate. He is not a mere trader in legal learning, or vendor of technical casuistries, but a gentleman whose professional status is regarded as a guarantee for the due and proper conduct of any given case for the interests of his client as far as the law allows. The conditions, therefore, under which he acts, constitute so many overruling elements influencing eloquence in such a way as to make forensic oratory often a very intricate and embarrassing procedure.
In ordinary eloquence thought is mistress of herself, and acts and manifests herself in a spontaneous manner.
In forensic eloquence a fixed and definite purpose, external to, and compulsory upon, the thinker, at once excites and subordinates the exertion of the mind, superintends its development, and in a considerable degree necessitates its form. The currents of reflection are not allowed to flow in self-made channels, but must be turned into such artificial courses as are requisite to bring its forces and freight to the required points. The living energy of thinking is constrained, and the pressure of an outward and imposed influence affects its activity, and modifies its direct, forthworking impartiality, as well as its natural inductiveness.
In the common exercises of oratory the pathway of thought is free. However the buoyancy, sprightliness, and animation of the intellectual powers see fit, they may exert themselves. Logic may restrict, and rhetoric may advise, but beyond these usual rulers of thought few impediments lie in the forward course of the thinker. In law it is far otherwise ; statutes, customs, judiciary rules, precedents, and technicalities, oppose or hinder progress, cause divergencies, or make a circuit advisable or requisite. The disputatious form, too, in which the whole thought must be cast, and the need for leaving as few loopholes of vantage to an opponent as possible, give rise to other peculiar characteristics of forensic thought.
If to these we add that forensic oratory is for the most part engaged in under the consciousness of a multiplex criticism,
from the sedate and stern occupant of the judgment-seat, often from the practical, common-sense gentlemen of the jury, always from the opposing agent, and nearly always from a multitude of professional brethren, we shall have made out clearly that considerable differences exist between forensic and popular oratory.
These specialities must have made themselves apparent to anyone who has watched the process of a trial in any of the courts of law or justice. They have seen the presiding judge or judges with moreless equanimity listening to the statements and harangues of tbe costumed pleaders, who seemed with all the dexterity of perfect adepts to unravel the mysteries of a case, and to the subsequent contest of points of law or fact between the antagonist counsellors ; they have noticed the impannelled jury watching the turning of the topics, and the enforcement of the pleas of the respective advocates, and seen their countenances change, and their attent eyes waver when the close quibbling of the expositors of the respective cases was going on; they have seen the members of the bar in. geniously examining the various “moves” of the engaged pleaders, and observed the effects which each exertion of skill had
upon those men themselves accustomed to the active play of mind against mind. While doing this, the spectator cannot but have reflected on the hazards to which eloquence is exposed in passing through an ordeal of criticism such as we have here merely hinted at.
Hedged in by statute and precedent, prescription and form; by positive morality and professional etiquette; by clients' clamour and critics' inquisitions ; by public policy and personal status ; by legal process, and by social requirements, forensic oratory is no mere juggle of shuffling trickery or grotesque parade of lacquered hypocrisy as it is often thought to be (and sometimes, let it be confessed, becomes), but a needful and requisite agency for the proper oncarrying of human affairs, demanding specific preparation, and necessitating a style of speech suitable to the fashions and exigen. cies under which it is practised.
It has been often debated whether the art of advocacy is permissible by the severe code of morals professedly adopted as the "top of judgment" on questions of morals,-the gospel. This is not the place to enter into a consideration of the affirmations and negations possible on the subject. But we are not precluded here from mentioning that the ground suggested, a few pages before, sweeps away, as it appears to us, the common arguments employed, eren by lawyers themselves, either in the attack or defence of the morality of legal pleading.
Unwilling as we are to moot, still more to prejudge, any debateable point in the pages allotted to these articles, we can scarcely hold ourselves free from a statement of the reasons for the necessity—if not the justifiability-of forensic eloquence. For if it be absolutely immoral and reprehensible, we should be ill able to escape blame if we become expositors of a scheme for its efficacious culture; and if it be a useless and nugatory formality, if we solemnly philosophize upon the principles underlying such a stereotyped folly, we should at least become chargeable with being the aiders and abettors of that folly. Either way, we should be scantly wise or " indifferently honest." We might, of course, appeal to it as an actuality, and claim the privilege of interpreting it,--mummery though it were. But that would merely change the field, not alter the question. Without prejudice, therefore, to any possible debate on the positive morality of the pleader's profession, we hope we may venture to state the distinct form which, in our mind, the principle and theory of forensic disputation takes as an existent activity in human affairs.
The forensic orator does not, in our opinion, appear in courts of law as the proxy or personator of the client for whom he acts ; nor does he, as we think, come entitled to speak out quite as fully and freely as his client would have done had he been permitted and able to plead his own cause. This we conceive is a mistake, and one which, if taken up and fully acted upon, would totally subvert the policy of our courts of justice. Many acute minds, having adopted this fallacious view, have set themselves resolutely to reconcile the lawyer's professional right to deceive and to strive after the success of his client, whether contrary to his sense of justice and truth, or not, with the usual canons of morality, by showing that were he to act otherwise, it would be tantamount to a prejudgment of his client's case, and would constitute the practising barrister in reality judge of causes, and shut up entry to the courts of law. There is just so much truth in this as to make it serviceable as a popular fallacy, but little more; for the pleader never really can become a representative man in the sense intended; nor can he denude himself of his own personality and responsibilities as is implied by the theory. On both these accounts, therefore, this theory fails; and, consequently, any system of forensic eloquence, constructed upon it as a ground-principle, would be, must be misleading.
Our theory is, that the art of pleading is mediatorial and interpretative,--not substitutionary or representative. Two clients, in a civil case, have cause of disagreement, and the law, desirous of securing impartiality, insists on impersonality. It therefore provides that those labouring under the animosities, excitements, and interests of a suit, shall not appear with all the disturbing tendencies of passion in its sedate tribunals, but shall send diplomatie deputies before her to state the case; not as it shows itself in the distorting mirror of the impassioned litigants, but as it manifestly exhibits itself in the presence of the statute book and its interpreter. These representatives of the opposing interests come into court as men accreditedly conversant with the state of the law on the given matter; as men who have considered the case in the points of view on which a decision on either side is demanded ; as having formed in their minds a positive idea of the relationship, existing between the claims of their respective clients and the provisions of statutory justice in the matter under dispute or in debate.
The merely personal interests of the clients, however impassioning to themselves, are here nominally laid aside in deference to the supremaey of the Law, which is acknowledged by the institution of the suit and the commissioning of ambassadors in their respective interests. These intermediaries—the pleaders--accept the law as umpire, and bring their interpretation of the doctrines of justice before her ministers; their character, reputation, and respectability, as prac
titioners of the law, are staked on the applicability of their statements of the case to the requirements of the law, and on the placing of the case before the court in an adjudicable point of view. They are accepted by the clients, on the one hand, as sufficiently competent to "state their case," and by the court as sufficiently competent to “state the law," and their work is to convince and persuade the representative of the law that the conclusions drawn from or regarding these two statements are legitimate. Differences may arise between the advocates, either on the statements of the case,-in fact, or form, or dependence; or the statement of the law,-in definition, category, or applicability; or in the consilience of each to the conclusion sought to be deduced, and debate ensues, -each labouring to secure the admission of his claim or objection by the supreme functionary in the court where the cause is laid.
Here the idea of cliency is, to a great extent, laid aside, and lawyerly ability, skill, and power come into play, and the case, in some sort, ceases to be a contest of clients, and to merge into a duello of advocates, each desirous to overtop the other by superiority of legal dexterity, acquisition, or exposition. The judge lays aside from his mind the personalities involved; regards the statements and the pleas; considers the intent and applicability of the statute, or other ground of judgment; and gives a decision determined by the evidence of the case brought before him, and duly sifted by debate; by the expositions of the law founded on in the pleadings, and by their relevancy as premises and conclusions. It follows, therefore, that the pleader's place is not so much that of the substitute or representative of a client, as of mediator between the law and his client, and interpreter of his client's case in its relation to - law, and of the law in its applicability to that case.
So long as the debate depends on mere questions of law, and the facts are undisputed or indisputable ; and so long as the question concerns merely the persons contending, the Law Courts deal with the case as mere law, and determine accordingly; but if the case be one in which society is directly and specially interested, provision is made for the representation of society by a jury, whose duty it is to judge of the fact, leaving to the judge the application of the law. Here the mediatorial character of the advocate appears perhaps more palpably. The advocates on such occasions address themselves to statements calculated to show the effect on society of the matter under inquiry, and so to shape the question, as to involve some prevalent passion, or feeling, or mood. They place the case before the jury, not as the hot, exasperated client would do, but as their professional tact admonishes them, in such a way as will best conciliate to their statement the minds of the occupants of the jury. box. Their statements of law do not, then, take the pure and simple form they assume before a judge sole. The law is so expounded as to show its effects on a given (undesirable in the pleader's side of the case) verdict of the jury; and hence, to counterbalance the prejudicial form which such statements take for the biasing of the mind, the judge recals, or modifies, the expositions given by the pleaders, or re-explains the law to the jury; defines their province and their duty, and clearly marks off what is left for him to perform.
Similarly, even in criminal cases, the mediatorial character of the advocate appears ; though in such cases complicated by the provision made, in this country, for the security of the subject, -that no one is bound to criminate himself. Here, the (supposed) criminal's advocate, accepting the plea of his client, requires to become the interpreter of his case, as the ground has been laid for him by that plea, and the opposing counsel for the prosecution is bound also to start from the same platform of allowed plea. In the one statement (that made by the latter) all the elements suggestive of guilt on the part of the accused are collected, arranged, and exposed, and in this way he, as the advocate of society against the alleged criminal, gives his interpretation of the offence, and claims the protective interposition of the law for society against the criminal. The advocate for the prisoner requires to rebut the evidence brought forward, to show the inapplicability of the statement of the prosecution to interpret the case of the non-delinquent (according to his recorded plea), and to solicit the shield of the law for the accused, and protection not only to him, but others who might be similarly placed, from the operation of the rindictive sanctions of civil life.
A greater sense of personality suffuses the criminal than the civil courts, and hence the zealous advocate sometimes oversteps the mediatorial, and assumes the representative form of pleading; but, that our view is even here substantiated we deduce from the fact, that many possibilities of mediatorship are reposed in the pleader even after the jury bas determined a criminal's guilt, in motions for arrest of judgment, or delay of sentence ; in pleas for mercy, or statements of reasons why sentence should not be pronounced; on a fair exposition of which the mercy of the law" may be extended, if it do not interfere with the constitution or the interests of society.
This theory of forensic eloquence, though here explained perhaps at greater length than was absolutely necessary,-for it might have been stated and adopted without reason assigned, -has been so expounded because its adoption or rejection materially affects the nature, extent, worth, and public, as well as professional, tenability of the art of advocacy; and is, therefore, of great preliminary importance in any modern exposition of a science of the oratory of the bar.
It has been usual, heretofore, in works on rhetoric to adhere to the ancient divisions of forensic eloquence, and to regard it as confined chiefly to the affecting of the understanding, and, therefore, as concerning itself in the main with fluency and distinctness of narrative, and cogency, and logicality of argument. This scheme of rhetoric ill adapts itself to modern usages and practice, founded as it is on the practices of legal pleaders, whose courts were very differently constituted from ours. It limits far too narrowly the possible oratory of the bar, and confines too severely the teaching