a public speaker, yet eloquence has never been so powerful an instrument there as it was in the popular assemblies of Greece and Rome. Under some former reigns the high hand of arbitrary power bore a violent sway; and in latter times ministerial influence has generally prevailed. The power of speaking, though always considerable, yet has been often found too feeble to counterbalance either of these; and, of course, has not been studied with so much zeal and fervor as where its effect on business was irresistible and certain.

At the bar our disadvantage, in comparison with the Ancients, is great. Among them the judges were generally numerous; the laws were few and simple; the decision of causes was left, in a great measure, to equity and the sense of mankind. Here was an ample field for what they termed judicial eloquence. But among the Moderns the case is quite altered. The system of law is become much more complicated. The knowledge of it is thereby rendered so laborious an attainment as to be the chief object of a lawyer's education, and, in a manner, the study of his life. The art of speaking is but a secondary accomplishment, to which he can afford to devote much less of his time and labor. The bounds of eloquence, besides, are now much circumscribed at the bar; and, except in a few cases, reduced to arguing from strict law, statute, or precedent, by which means knowledge, much more than oratory, is become the principal requisite.

With regard to the pulpit, it has certainly been a great disadvantage that the practice of reading sermons, instead of repeating them from memory, has prevailed in England. This may, indeed, have introduced accuracy; but it has done great prejudice to eloquence; for a discourse read is far inferior to an oration spoken. It leads to a different sort of composition, as well as of delivery; and can never have an equal effect upon any audience. Another circumstance, too, has been unfortunate. The sectaries and fanatics, before the Restoration, adopted a warm, zealous, and popular manner of preaching; and those who adhered to them, in aftertimes, continued to distinguish themselves by somewhat of the same manner. The odium of these sects drove the established church from that warmth, which they were judged to have carried too far, into the opposite extreme of studied coolness and composure of manner. Hence, from the art of persuasion, which preaching ought always to be, it has passed, in England, into mere reasoning and instruction, which not only has brought down the eloquence of the pulpit to a lower tone than it might justly assume, but has produced this further effect, that by accustoming the public ear to such cool and dispassionate discourses, it has tended to fashion other kinds of public speaking upon the same model.

Thus I have given some view of the state of eloquence in modern times, and endeavored to account for it. It has, as we have seen, fallen below that splendor which it maintained in ancient ages; and from being sublime and vehement, has come down to be temperate and cool. Yet, still, in that region which it occupies it admits great scope; and, to the defect of zeal and application, more than to the want of capacity and genius, we may ascribe its not having hitherto attained higher distinction. It is a field where there is much honor yet to be reaped; it is an instrument which may be employed for purposes of the highest importance. The ancient models may still, with much advantage, be set before us for imitation; though, in that imitation, we must doubtless have some regard to what modern taste and modern manners will bear,- of which I shall afterwards have occasion to say more.

THE

THE BAR AND PUBLIC ASSEMBLIES

HE ends of speaking at the bar, and in popular assemblies, are commonly different. In popular assemblies, the great object is persuasion; the orator aims at determining the hearers to some choice or conduct, as good, fit, or useful. For accomplishing this end, it is incumbent on him to apply himself to all the principles of action in our nature; to the passions and to the heart, as well as to the understanding. But, at the bar, conviction is the great object. There, it is not the speaker's business to persuade the judges to what is good or useful, but to show them what is just and true; and, of course, it is chiefly, or solely, to the understanding that his eloquence is addressed. This is a characteristical difference which ought ever to be kept in view.

ter.

In the next place, speakers at the bar address themselves to one or to a few judges, and these, too, persons generally of age, gravity, and authority of characThere they have not those advantages which a mixed and numerous assembly affords for employing all the arts of speech, even supposing their subject to admit them. Passion does not rise so easily; the speaker is heard more coolly; he is watched over more severely; and would expose himself to ridicule by attempting that high vehement tone which is only proper in speaking to a multitude.

In the last place, the nature and management of the subjects which belong to the bar require a very different species of oratory from that of popular assemblies. In the latter, the speaker has a much wider range. He is seldom confined to any precise rule; he can fetch his topics from a great variety of quarters, and employ every illustration which his fancy or imagination suggests. But, at the bar, the field of speaking is limited to precise law and statute. Imagination is not allowed to take its scope. The advocate has always lying before him the line, the square, and the compass. These, it is his principal business to be continually applying to the subjects under debate.

For these reasons, it is clear, that the eloquence of the bar is of a much more limited, more sober and chastened kind than that of popular assemblies; and for similar reasons, we must beware of considering even the judicial orations of Cicero or Demosthenes as exact models of the manner of speaking which is adapted to the present state of the bar. It is necessary to warn young lawyers of this; because, though these were pleadings spoken in civil or criminal causes, yet, in fact, the nature of the bar anciently, both in Greece and Rome, allowed a much nearer approach to popular eloquence than what it now does. This was owing chiefly

to two causes:

First, because in the ancient judicial orations, strict law was much less an object of attention than it is become among us. In the days of Demosthenes and Cicero, the municipal statutes were few, simple, and general; and the decision of causes was trusted, in a great measure, to the equity and common sense of the judges. Eloquence, much more than jurisprudence, was the study of those who were to plead causes. Cicero somewhere says, that three months' study was sufficient to make any man a complete civilian; nay, it was thought that one might be a good pleader at the bar, who had never studied law at all. For there were among the Romans a set of men called pragmatici, whose office it was to give the orator all the law knowledge which the cause he was to plead required, and which he put into that popular form, and dressed up with those colors of eloquence, that were best fitted for influencing the judges before whom he spoke.

We may observe next, that the civil and criminal judges, both in Greece and

Rome, were commonly much more numerous than they are with us, and formed a sort of popular assembly. The renowned tribunal of the Areopagus at Athens consisted of fifty judges at the least. Some make it to consist of a great many more. When Socrates was condemned, by what court it is uncertain, we are informed that no fewer than two hundred and eighty voted against him. In Rome, the pretor, who was the proper judge both in civil and criminal causes, named, for every cause of moment, the judices selecti, as they were called, who were always numerous, and had the office and power of both judge and jury. In the famous cause of Milo, Cicero spoke to fifty-one judices selecti, and so had the advantage of addressing his whole pleading, not to one or a few learned judges of the point of law, as is the case with us, but to an assembly of Roman citizens. Hence all those arts of popular eloquence, which we find the Roman orator so frequently employing, and probably with much success. Hence tears and commiseration are so often made use of as the instruments of gaining a cause. Hence certain practices, which would be reckoned theatrical among us, were common at the Roman bar; such as introducing not only the accused person dressed in deep mourning, but presenting to the judges his family, and his young children, endeavoring to move them by their cries and tears.

For these reasons, on account of the wide difference between the ancient and modern state of the bar, to which we may add also the difference in the turn of ancient and modern eloquence, which I formerly took notice of, too strict an imitation of Cicero's manner of pleading would now be extremely injudicious. To great advantage he may still be studied by every speaker at the bar. In the address with which he opens his subject, and the insinuation he employs for gaining the favor of the judges; in the distinct arrangement of his facts; in the gracefulness of his narration; in the conduct and exposition of his arguments, he may and he ought to be imitated. A higher pattern cannot be set before us; but one who should imitate him also in his exaggeration and amplifications, in his diffuse and pompous declamation, and in his attempts to raise passion, would now make himself almost as ridiculous at the bar, as if he should appear there in the toga of a Roman lawyer.

Before I descend to more particular directions concerning the eloquence of the bar, I must be allowed to take notice, that the foundation of a lawyer's reputation and success must always be laid in a profound knowledge of his own profession. Nothing is of such consequence to him, or deserves more his deep and serious study. For whatever his abilities as a speaker may be, if his knowledge of the law be reckoned superficial, few will choose to commit their cause to him. Besides previous study, and a proper stock of knowledge attained, another thing, highly material to the success of every pleader, is a diligent and painful attention to every cause with which he is intrusted, so as to be thoroughly master of all the facts and circumstances relating to it. On this, the ancient rhetoricians insist with great earnestness, and justly represent it as a necessary basis to all the eloquence that can be exerted in pleading. Cicero tells us (under the character of Antonius, in the second book "De Oratore ») that he always conversed at full length with every client who came to consult him; that he took care there should be no witness to their conversation, in order that his client might explain himself more freely; that he was wont to start every objection, and to plead the cause of the adverse party with him, that he might come at the whole truth, and be fully prepared on every point of the business; and that after the client had retired, he used to balance all the facts with himself, under three different characters; his own, that of the judge, and that of the advocate on the opposite side. He censures very severely those of the profession who decline taking so much trouble; taxing them not only with shameful negligence,

out with dishonesty and breach of trust. To the same purpose Quintilian, in the eighth chapter of his last book, delivers a great many excellent rules concerning all the methods which a lawyer should employ for attaining the most thorough knowledge of the cause he is to plead; again and again recommending patience and attention in conversation with clients, and observing very sensibly: "Non tam obest audire supervacua, quam ignorare necessaria. Frequenter enim et vulnus, et remedium, in iis orator inveniet quæ litigatorie in neutram partem, habere momentum videbantur.»

Supposing an advocate to be thus prepared, with all the knowledge which the study of the law in general, and of that cause which he is to plead in particular, can furnish him, I must next observe, that eloquence in pleading is of the highest moment for giving support to a cause. It were altogether wrong to infer, that because the ancient popular and vehement manner is now in a great measure superseded, there is, therefore, no room for eloquence at the bar, and that the study of it is become superfluous. Though the manner of speaking be changed, yet still there is a right and proper manner, which deserves to be studied as much as ever. Perhaps there is no scene of public speaking where eloquence is more necessary. For, on other occasions, the subject on which men speak in public is frequently sufficient by itself to interest the hearers. But the dryness and subtilty of the subjects generally agitated at the bar, require, more than any other, a certain kind of eloquence in order to command attention; in order to give proper weight to the arguments that are employed, and to prevent anything which the pleader advances from passing unregarded. The effect of good speaking is always very great. There is as much difference in the impression made upon the hearers by a cold, dry, and confused speaker, and that made by one who pleads the same cause with elegance, order, and strength, as there is between our conception of an object when it is presented to us in a dim light, and when we behold it in a full and clear one.

It is no small encouragement to eloquence at the bar, that of all the liberal professions, none gives fairer play to genius and abilities than that of the advocate. He is less exposed than some others to suffer by the arts of rivalry, by popular prejudices, or secret intrigues. He is sure of coming forward according to his merit; for he stands forth every day to view; he enters the list boldly with his competitors; every appearance which he makes is an appeal to the public, whose decision seldom fails of being just, because it is impartial. Interest and friends may set forward a young pleader with peculiar advantages beyond others at the beginning; but they can do no more than open the field to him. A reputation resting on these assistances will soon fall. Spectators remark, judges decide, parties watch; and to him will the multitude of clients never fail to resort, who gives the most approved specimens of his knowledge, eloquence, and industry.

It must be laid down for a first principle, that the eloquence suited to the bar, whether in speaking or in writing law papers, is of the calm and temperate kind, and connected with close reasoning. Sometimes a little play may be allowed to the imagination, in order to enliven a dry subject and to give relief to the fatigue of attention; but this liberty must be taken with a sparing hand; for a florid style, and a sparkling manner, never fail to make the speaker be heard with a jealous ear by the judge. They detract from his weight, and always produce a suspicion of his failing in soundness and strength of argument. It is purity and neatness of expression which is chiefly to be studied; a style perspicuous and proper, which shall not be needlessly overcharged with the pedantry of law terms, and where, at the same time, no affectation shall appear of avoiding these, when they are suitable and necessary.

Verbosity is a common fault, of which the gentlemen of this profession are accused, and into which the habit of speaking and writing so hastily, and with so little preparation, as they are often obliged to do, almost unavoidably betrays them. It cannot, therefore, be too much recommended to those who are beginning to practice at the bar, that they should early study to guard against this while as yet they have full leisure for preparation. Let them form themselves, especially in the papers which they write, to the habit of a strong and a correct style, which expresses the same thing much better in a few words than is done by the accumulation of intricate and endless periods. If this habit be once acquired, it will become natural to them afterwards when the multiplicity of business shall force them to compose in a more precipitate manner. Whereas, if the practice of a loose and negligent style has been suffered to become familiar, it will not be in their power, even upon occasions when they wish to make an unusual effort, to express themselves with energy and grace.

Distinctness is a capital property in speaking at the bar. This should be shown chiefly in two things: first, in stating the question; in showing clearly what is the point in debate; what we admit, what we deny; and where the line of division begins between us and the adverse party. Next, it should be shown in the order and arrangement of all the parts of the pleading. In every sort of oration a clear method is of the utmost consequence; but in those embroiled and difficult cases which belong to the bar, it is almost all in all. Too much pains, therefore, cannot be taken in previously studying the plan and method. If there be indistinctness and disorder there, we can have no success in convincing; we leave the whole cause in darkness.

With respect to the conduct of narration and argumentation, I shall hereafter make several remarks when I come to treat of the component parts of a regular oration. I shall at present only observe that the narration of facts at the bar should always be as concise as the nature of them will admit. Facts are always of the greatest consequence to be remembered during the course of the pleading; but, if the pleader be tedious in his manner of relating them, and needlessly circumstantial, he lays too great a load upon the memory. Whereas,

by cutting off all superfluous circumstances in his recital, he adds strength to the material facts; he both gives a clearer view of what he relates, and makes the impression of it more lasting. In argumentation, again, I would incline to give scope to a more diffuse manner at the bar, than on some other occasions. For, in popular assemblies, where the subject of debate is often a plain question, arguments, taken from known topics, gain strength by their conciseness. But the obscurity of law points frequently requires the arguments to be spread out, and placed in different lights, in order to be fully apprehended.

When the pleader comes to refute the arguments employed by his adversary, he should be on his guard not to do them injustice by disguising, or placing them in a false light. The deceit is soon discovered; it will not fail of being exposed; and tends to impress the judge and the hearers with distrust of the speaker, as one who either wants discernment to perceive, or wants fairness to admit the strength of the reasoning on the other side. Whereas, when they see that he states, with accuracy and candor, the arguments which have been used against him before he proceeds to combat them, a strong prejudice is created in his favor. They are naturally led to think that he has a clear and full conception of all that can be said on both sides of the argument; that he has entire confidence in the goodness of his own cause, and does not attempt to support it by any artifice or concealment. The judge is thereby inclined to receive much more readily the impressions which are given him by a speaker who