26

LECTURE XXVIII.

ELOQUENCE OF THE BAR....ANALYSIS OF CICERO'S ORATION FOR CLUENTIUS.

I TREATED in the last Lecture, of what is peculiar to the Eloquence of popular assemblies. Much of what was said on that head is applicable to the Eloquence of the Bar, the next great scene of public speaking, to which I now proceed, and my observations upon which, will therefore be the shorter. All, however, that was said in the former Lecture must not be applied to it; and it is of importance, that I begin with showing where the distinction lies.

In the first place, The 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.

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 character. There, 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 mul titude.

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 know

ledge which the cause he was to plead required, and which he put into that popular form, and dressed up with those colours 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 280 voted against him. In Rome, the prætor, 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, endeavouring 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

* Vide Potter. Antiq. vol. i. p. 102.

favour 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 amplification, 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 entrusted, 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 neces sary 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, but 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 nutrame 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 of pleading 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 any thing which the pleader advances

* "Equidem solce dare operam, ut de sua quisque re me ipse doceat ; et nequis alius adsit, qo liberius loquatur; et agere adversarii causam, ut ille agat suam; et quicquid de sua re cogitaret, in medium proferat. Itaque cùm ille decessit, tres personas unus sustineo, summâ animi equitate; meam, adversarii, judicis. Nonnulli dum operam suam muitam existimari volunt, ut toto foro volitare, et à causa ad causam ire videantur, causuas dicunt incognitas. In quo est illa quidem magna offensio, vel negligentiæ susceptis rebus, vel perfidiæ receptis; sed etiam illa, major opinione, quod nemo potest de ca re quam non novit, non turpissimè dicere."

"To listen to something that is superfluous can do no hurt; whereas, to be ignorant of something that is material, may be highly prejudicial. The advocate will frequently discover the weak side of a cause, and learn, at the same time, what is the proper defence, from circumstances which, to the party himself, appeared to be of little or no moment."