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 diplomatic 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 supremacy 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 jurybox. 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. 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 to others who might be similarly placed, from the operation of the vindictive sanctions of civil life. The 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 has 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 it supplies. In fact, it leaves completely unnoticed some of the most specific points in which the modern art of advocacy differs from that of Greece, Rome, and the middle ages, and is so far defective as an expository science. If the theory here proposed were adopted, we should be able to include, as component elements of the eloquence of the bar, all needful arts of assuaging anger, tempering severity, producing leniency of judgment, and governing the passions by persuasion and forensic eloquence, and would require disquisitions in explanation of several matters not now included amongst the studies of professional pleaders during the course of their education. These might take various arrangements, but, perhaps, that suggested in the following table would afford the simplest and readiest practical form of exposition, viz.,— as affecting Forensic Eloquence Outline of the Elements of Forensic Eloquence. 1. The Client 2. The Judge 3. The Jury (if any) 4. Opposing pleaders 5. Public opinion 1. Clear statement of the case. 2. Plain exposition of the law. 1. Categorical definition. 2. Careful induction of precedents. 3. Concise statement of statutes, &c., relied on. 4. Logical consistency of argument. 5. Explanation of the tendencies and issues of judgments sought. 6. Appeal on the majesty and morality of law. 1. Effective narration. 2. Popular statement of the worth of evidence. 3. Cogency of application. 4. Appeal on the expediency of the law. 1. Lucid exposition. 2. Rapid conception in debate. 3. Able cross-questioning. 4. Ready retaliativeness and retort. 1. Careful and honest details. 2. Morality of the theory of law. 3. Effects on social life. 4. Quotation of popular maxims. 5. Personal considerations. 6. Claim to amendment of law, or revision of decision. From this mere tabular view our readers may perceive the richness and interest of the field opened up to the forensic orator, and may infer that the future consideration of this topic may not be destitute of sufficient attractions for the intelligent and thoughtful, even though unprofessional reader. S. N. Religion. CAN MEMBERS OF CHRISTIAN CHURCHES CONSIST- SHAKSPERE TER AFFIRMATIVE ARTICLE.-I. "Heaven doth with us as we with torches do; As if we had them not. Spirits are not finely touched But to fine issues; nor nature never lends The smallest scruple of her excellence, But, like a thrifty goddess, she determines Both thanks and use."-Measure for Measure. THE belief in the genius and excellence of Shakspere is inherent in Englishmen. It has become a part of their creed to declare his superiority to any other poet or dramatist, ancient or modern. Much of this belief is, no doubt, but assent to general opinion, and an unhesitating reception of all the traditions of their fathers respecting the greatness of Shakspere, and not a conclusion arrived at after a thorough perusal of his works. But setting aside this voice of the multitude, who praise Shakspere because others do so, and it is the fashion, we think there will still be left a large, a very large, number of the great and mighty, intellectually and relatively, of our land who have critically examined the legacy bequeathed to them; and, having done so, have recorded a verdict that the poet is entitled to the love and reverence of posterity. This being so, and we think few will deny that it is, it may not be out of place to inquire what qualities in the poet have led to this decision. We think the chief is-and it is one which we adduce in support of the assertion that members of christian churches can consistently take part in the proposed demonstration-that Shakspere is a faithful and minute delineator of human nature. He has violated, in numerous instances, every rule of dramatic art. Unities of time and place are thrown aside or forgotten. He often violates good taste; and though we may not endorse the sweeping assertion of Voltaire, that "he does not possess a spark of good taste, must allow some of this writer's remarks to be just. In Othello,' he observes," a most tender piece, a man strangles his wife upon the stage; and though the poor woman is strangling, she cries out that she dies very unjustly. In Hamlet' the two gravediggers are drunk, singing ballads, and making humorous reflections on the skulls we 932 |