LECTURE XIII. JUDICIAL ORATORY. FROM the tenor of my preceding lectures you must have collected, that, while the principles of demonstrative and deliberative oratory are the same in every age and country, where the art is practised, those of judicial eloquence must be varied and modified by the laws and judicial institutions of the time and place. The importance of this idea must plead my apology for dwelling with earnestness upon its developement, for recurring again to it at this time, and for presenting it, with the hope of giving it additional illustration, under another point of view to your reflections. Observe then, that demonstrative and deliberative oratory are not of necessity connected with any courses. . The subjects of particular social institutions. panegyric, of invective, or of deliberation, are indeed diversified under different forms of government, but do not necessarily result from them. An eulogy or a philippic may be pronounced by an individual of one nation upon the subject of another. Deliberation may occur between persons, bound by no social compact together. Civil or political institutions may incidentally be the subjects, but are not of the essence of such disPraise, censure, exhortation, and advice, are dispensed and bestowed by man, as a rational being, to his fellow creature, endowed with the same faculty. The Greeks and Romans, as we have seen, allowed much of the same latitude to their municipal tribunals. But under our improved theories of natural and social rights positive institution is the indispensable ingredient of all The whole amount of every judicial discourse. trial can be neither more nor less, than a conflict between law and transgression. To try a man by the laws of one nation for an offence against the laws of another would be at once the extreme of oppression and the height of absurdity. common standard then, by which all judicial argument must be measured, is law; the whole drift of The an advocate's eloquence, to display the conformity between the cause of his client and the law; the whole purpose of a prosecutor, to vindicate its violation; the whole defence of innocence, to disprove its infringement. Now the particulars in our judicial institutions of the most material importance to the forensic speaker are three. 1. The division of all offences against the laws into public and private wrongs; with the consequent distinction between courts of criminal and civil jurisdiction. 2. The division of public wrongs into two classes; personal wrongs, which may be committed by every man, as an individual; and official crimes or misdemeanors, committed by public officers, and triable by impeachment. And 3. The division of powers, mentioned in my last lecture, between the judges and jury, in the course of ordinary jurisdiction; and the separation of the power of pardoning offences from both. 1. Under our state of society every individual is entitled to certain rights, recognised and defined by the original social compact, or by the laws, enacted under it. It is the primary object of civil society and of government to protect every individual in the enjoyment of these rights. Some of them are of such magnitude, that their support and vindication are exclusively retained in the hands of the body politic itself, while others are secured to the individual only by a pledge of assistance from the public authority, whenever its aid may be found necessary. Such is the distinction, sa well known to all lawyers, between private and public wrongs; the private wrong consisting of the violation only of the right of individuals; the public wrong, in an outrage upon the rights of the whole political society. Thus a breach of promise, a non-payment of debt, or a disputed title to land, is barely a private wrong, for the redress of which the injured party is authorized to call upon the powers of government; but which he must first prove by suit in his own name, and at his own risk, before the competent tribunals. But treason, robbery, murder, theft, and all those offences, which are included under the denomina. tion of crimes and misdemeanors, are of so much importance to the whole society, that, although the direct injury, committed by them, often affects only an individual, the cause is adopted, as that of the nation; and the punishment of the offender is prosecuted in the name of the sovereign. Hence the distinction between the civil and criminal jurisdiction of our courts; a distinction sedulously to be remembered by the judicial orator, because, although these jurisdictions are among us united in our highest courts, yet there are different rules of evidence, different maxims of law, and different modes of practice, established in them. Under the civil jurisdiction the cause is brought forward by the party, and is called an action; under the criminal jurisdiction it is prosecuted by the government. In civil causes the controversy is only between two or more individuals, the plaintiff and the defendant. In criminal causes it is between the public on one side, and the person accused on the other. The right of action must be pursued by the individual himself, or by his agents. The public wrong is not entrusted to the pursuit of any individual. Select bodies of men are from time to time appointed, whose task it is to inquire into all such offences, committed in their vicinity, and to present them to the competent courts for trial. The accusation is drawn up under the name of an indictment, and is managed by a permanent public officer. The person accused is then arraigned, and usually pleads, that he is not guilty of the of |