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argument on a special case, in the Court of King's Bench; but few will hear and fewer listen to him; and he will see the proceedings of the day shortly characterized in the newspapers of the morrow " as totally destitute of public interest," while the opposite column will be filled with an elaborate report of a case of assault at Clerkenwell, or a picturesque account of a squabble between a pawnbroker and an alderman!
To address a jury, even in cases of minor importance, seems at first to require talents and requirements of a superior kind. It really requires a certain degree of nerve, a readiness of utterance, and a sufficient acquaintance with the ordinary line of illustration used and approved on similar occasions. A power of stating facts, indeed, distinctly and concisely is often important to the real issue of the cause; but it is not one which the audience are likely to appreciate. The man who would please them best should omit all the facts of his case, and luxuriate in the common places which he can connect with it, unless he is able to embellish his statement, and invest the circumstances he relates with adventitious importance and dignity. An advocate of accurate perceptions, accustomed to rate things according to their true value, will find great difficulty in doing either. Most of the subject matter of flourish, which is quite as real to the superficial orator as any thing in the world, is thrown far back from his habitual thoughts, and hardly retains a place among the lumber of his memory. Grant him time for preparation, and a disposition to do violence to his own tastes, in order to acquire popularity, and he may approach a genuine artist in the factitious; but, after all, he will run great risk of being detected as a pretender. A single touch of real feeling, a single piece of concise logical reasoning, will ruin the effect of the whole, and disturb the well-attuned minds of an enlightened jury. Even the topics which must be dilated on are often such as would not weigh a feather with an intelligent man, out of court, and still oftener give occasion to watery amplifications of ideas, which may be fairly and fully expressed in a few words. It is obvious, therefore, that the more an advocate's mind is furnished with topics rather than with opinions or thoughts, the more easy will he find the task of addressing a jury. A sense of truth is ever in his way. It breaks the fine, flimsy, gossamer tissue of his eloquence, whichr but for this sturdy obstacle, might hang suspended on slender props to glitter in the view of fascinated juries. If he has been accustomed to recognise a proportion between words and things, he will, with difficulty, screw himself up to describe a petty affray in the style of Gibbon, though to his client the battle of Holywell-lane may seem more important than the fall of the Roman Empire. If he would enrapture the audience when entrusted to open a criminal case of importance, he should begin with the first murder; pass a well-rounded eulogy on the social system; quote Blackstone, and the Precepts of Noah; and dilate on crime, conscience, and the trial by jury; before he begins to state the particular facts which he expects to prove. He disdains to do this—or the favourite topics never occur to his mind even to be rejected; and, instead of winning the admiration of a county, he only obtains a conviction! In addition to an inward repugnance to solemn fooling, men of sterling sense have also to overcome the dread of the criticism of others whose opinion they value, before they can descend to the blandishments of popular eloquence. It is seldom, therefore, that a young barrister can employ the most efficacious mode of delighting his audience, unless he is nearly on a par with them, and thinks, in honest stupidity, that he is pouring forth pathos and wisdom. There is, indeed, an excessive proneness to adopt the tone of the moment, an easiness of temperament, which sometimes may enable him to make a display in a trifling matter without conscious degradation; but he is ashamed of his own success when he grows cool, and was reduced by excessive sympathy to the level of his hearers only for the hour. Let no one, therefore, hastily conclude that the failure of a youth, to whom early opportunities are given, is a proof of essential inferiority to successful rivals. It may be, indeed, that he is below his business; for want of words does not necessarily imply plenitude of ideas, nor is abstinence from lofty prosings and stale jests conclusive evidence of wit and knowledge; but he is more probably superior to his vocation—too clear in his own perceptions to perplex others; too much accustomed to think to make a show without thought; and too deeply impressed with admiration of the venerable and the affecting readily to apply their attributes to the miserable facts he is retained to embellish.
Let us now take a glance at that higher sphere in which a barrister moves when he has overcome the difficulties of his profession, and has obtained a share of leading business in the superior courts. Here it must at once be conceded that considerable powers are necessary, and that the deficiencies which aided the aspiring junior will no longer prevail. The learning and authority of the judge, and the acuteness of established rivals, not only prevent the success of those experiments, which ignorance only can hazard, but generally stifle them in the birth. The number and variety of causes, and the business-like manner in which they are conducted, restrain the use of fine spun rhetoric to a few special occasions. A man who would keep any large portion of general practice must have industry and retentive memory; clearness of mind enough to state facts with distinctness, and to arrange them in lucid order; a knowledge of law sufficient for the discovery of any point in his own favour, and for the supply of a ready evasion of any suggested by his opponent; quickness and comprehension of intellect to see the whole case on both sides at one view; and complete self-possession and coolness, without which all other capacities will be useless. These are essentials for Nisi Prius practice; but does it give scope to no higher faculties 1 Is there nothing in human intellect which may be allowed to adorn, to lighten, and to inspire the dull mass of facts and reasonings 1 Was Erskine no more than a distinct narrator, a tolerable lawyer, and a powerful reasoner on opposing facts'1 Can no higher praise be given to Scarlett, who sways the Court of King's Bench like a monarch, and to Brougham* whose eloquence sheds terror into the enemies of freedom throughout the world 1 We will answer these questions as well as we Eire able.
For the highest powers of the mind which can be developed in eloquence even a superior court rarely affords room. Some have ascribed their absence to a chilling spirit of criticism in the legal auditors; but it is really attributable to the want of fitness in the subjects, and in the occasions.
* Now Lord Brougham.
The noble faculty of imagination may, indeed, sometimes be excited to produce sublime creations, in the fervour of a speech, as justly as in the rage or sorrow of a tragedy; but in both the passion must enkindle the imagination, not the imagination create the passion. The distinction of eloquence from other modes of prose composition is that it is primarily inspired by passion, and that it is either solely addressed to the feelings, or sways the understanding through the medium of the affections. It is only true when it is proportioned to the subject out of which it arises, because otherwise the passion is but fantastical and belongs to the mock heroic. In its course, it may edge the most subtle reasonings, point the keenest satire, and excite the imagination to embody truth in living images of grandeur and beauty; but its spring and instinct must be passion. Nor is this all; it must not only be proportioned to the feeling in its author's mind, but to the feeling and intellect of those to whom it is addressed. A man of ardent temperament may work himself into a state of excitation by contemplating things which are remote and visionary; he may learn to take an enthusiastic interest in the objects of his own solitary musings; but if he brings into court the passionate dreams of his study, he will invite scorn and make failure certain. Not only is there rarely a subject which can worthily enkindle such passion as may excite imagination, but still more rarely an audience who can justify it by receiving it into their hearts. On some few occasions, as of great political trials, a burning indignation can be felt and reflected; the thoughts which the jury themselves swell with may be imaged in shapes of fire; and the orator may, while clothing mighty principles in noble yet familiar shapes, by a felicitous compromise, bring grandeur and beauty half way to the audience, and raise the audience to a station where they can feel their influence. But he must take care that he does not deceive himself by his own emotions; and mistake the inspiration of the study for that of the court . He is safe only while he is impelled by the feeling of those whom he addresses, and while he keeps fully within their view. In ordinary causes, imagination would not only be out of place, but it cannot enter; because its own essence is truth, and because it never has part in genuine eloquence unless inspired by adequate emotion. The flowers of oratory which are withheld by fear of contempt, or regarded as mere ornaments if produced, are not those which grow out of the subject, and are streaked and coloured by the feeling of the time; but gaudy exotics, leisurely gathered and stuck in out of season, and destitute of root. These fantastical decorations do not prove the existence of fervour or of imagination, but the want of both; and it is well if they are kept back by the good sense of the speaker, or his reasonable fears. But while a man, endowed with high faculties, cautiously abstains from displaying them on inadequate occasions, he will find them too often an impediment and a burden. He is in danger of timidity from a consciousness of power yet unascertained even by himself, and from an apprehension lest he should profane his long-cherished thoughts by a needless exposure. He is liable to be posed by the recurrence of some delicate association which he feels will not be understood, and modestly hesitates on the verge of the profound. He is, therefore, less fitted for ordinary business than another who can survey his own mental resources at a glance, as a wellordered armoury, and select, without hesitation, the weapon best adapted for the struggle.
Pathos, much oftener than imagination, falls within the province of the advocate. But the art of exciting pity holds no elevated rank in the scale of intellectual power. As employed at the bar in actions for adultery, seduction, and breach of promise of marriage, ostensibly as a means of effecting a transfer of money from the purse of the culprit to that of the sufferer, it sinks yet lower than its natural place, and robs the sorrows on which it expatiates of all their dignity. The first of these actions is a disgrace to the English character; for the plaintiff, who asks for money, has sustained no pecuniary loss; and what money does he deserve who seeks it as a compensation for domestic comfort, at the price of exposing to the greedy public all the shameful particulars of his wife's crime and of his own disgrace 1 In the other cases, where the party has been injured, not only in feeling, but in property or property's value, it is right that redress should be given; and that redress, even when sought in the form of damages, may be demanded in a tone of eloquent reprobation of villany; but the moment the advocate recounts the miseries of his client, in order to show how