Forensic Eloquence.

THE Forensic pleader is a controversialist. A lawsuit is a dispute brought before the national umpires for effective decision. It implies, therefore, a point of controversy on which issue may be taken or tendered. The whole phraseology of pleadings at law or in equity involve this controversial element. To the narration or complaint there follows the defence (if the case goes on). Whether this takes the shape of abatement, demurrer, or pleading in the action, there may ensue replication, rejoinder, surrejoinder, rebutter, surrebutter, &c., until the precise point or points in dispute between the parties in a suit are so developed as to present them in the form which is most convenient for decision, i. e., as free as possible from extraneous matter, thoroughly sifted from ambiquity or avoidable complication. Here is wide scope for possible altercation. Of course every allegation made by the plaintiff against any defendant ought to be true. This true matter ought to be stated in plain and exact terms; and with all requisite particularity regarding person, place, time, manner, circumstance, accidents, &c. In form and sufficiency, too, the cause should be perfectly laid. The adequacy of any particular court to deal with the given cause-forms a topic for serious deliberation; and the method in which matters of law are separated from matters of fact, in each step of the process requires minute and painstaking attention. Any defect in these preliminary considerations, therefore, affords field for disputation, and supplies the advocate with topics in the controversy. The general or the special issues tendered or taken, are also, of course, liable to prevailing or countervailing arguments; and hence, as we said, legal pleading is in reality controversy, in presence of and under the umpireship or arbitration of a judge, with or without (as the case may be) reference to a jury. The laws of forensic eloquence are consequently, in a great measure, only the laws of controversy specially adapted to discussions carried on in the national courts for the determination of right or the repression of wrong.

It is not necessary (even though the writer were competent) to enter into precise technical details regarding the various processes and stages through which any given sort of lawsuit may be put or dragged. The substantial rules of pleading do not depend upon legal forms of procedure (which only afford opportunity for observing or temptations to neglect them) but upon concise and explicit logic, on defined and philosophical rhetoric,-in short, upon the well understood principles of the intellect, the will and the emotions of man. Legal technicalities issue from the mind. They constitu e safeguards, boundaries and waymarks in the course of a controversy. They are often the concrete results of age-long experience, 1864.

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-built, like the Dutch dikes, by the industry and skill of our forefathers, to prevent the inflow of novelty and the overturning of known and fixed limits and usages. Sometimes they embody the possible abbreviations which may be employed in public business or in private transactions; and often they are serviceable, by their demand for uniformity, as helps in carrying a cause forward to the point where issue may be most advantageously joined. All routine is not evil. Forms and technicalities are merely the grooves which the habits of the mind have worn in the frequent passage hither and thither which business necessitates, and, like the channel of a river, the bed of a canal, the level of a footpath, or the course of a railway, if rightly used, must be advantageous so far as they go, To forms of pleading, as forms, we do not object; with forms of pleading, as forms, we intend to concern ourselves as little as possible. We shall admit and accept of the forms as they are, and within these forms shall endeavour to bring together so much of the teaching of logic and rhetoric as may supply to some extent hints or helps towards a practical art of controversial pleading, or an exposition of "Forensic Eloquence as affecting opposing Pleaders," as laid down in our "Outline of the Elements of Forensic Eloquence," ante page 13.

There is a very prevalent notion abroad that rhetoric is chicane and logic trickery. This is a mistake. Both are sciences having specific objects, and result in arts which, like all other arts, are intended to promote success in the attainments of the objects aimed at by their use. They have no essential immoral tendency. Like weights in a balance, they may be put in either scale; but the morality of their employment lies in the hand and conscience of the possessor. They are merely the means of perfecting the two great special powers of man,-discourse and reason. The passions can be moved, and the soul may be touched, even to transport, by fitly collocated words; the intellect can be swayed by properly arranged ideas. Rhetoric and logic constitute the sciences, by the study of which the mind acquires the ability to employ these with the greatest effect, in the circumstances, so far as regards the accomplishment of the thinker and speaker's design. The pleader wishes to succeed; in fact, he is employed in the hope that he will succeed. He must therefore study and use the means of success so far as they lie within his reach and power. He does what every other person does in his own walk in life,-endeavours to please his customers, and to give satisfactory proof of his devotion to any business intrusted to his care. It looks clever-like to say

"For fees, to any form he moulds a cause;

The worst has merits and the best has flaws;
Five guineas make a criminal to-day,

And ten to-morrow wipes the stain away."

It seems smart to talk of legal processes as a set of captious formalities, equivocations, quiddities, quibbles, false glosses, so

phistries, misrepresentations, needless refinements, garbled or onesided statements, browbeating and defamation, perplexing confusion and tedious logomachy; but, except in rare cases, they do not merit either the personal or the professional sarcasm expended upon their practitioners and them. A lawyer is not necessarily all "tongue with a garnish of brains;" nor are his speeches always a continuous uncoiling of cunningly spun subtilties, like a spider's web, at once a protection to himself and a snare to others. Professional life of all kinds is as much beset with possible immoralities as that of the lawyer. It might as justly be said of the most beneficent of all human studies-medicine-that it is at absolute variance with the Divine will, whose laws require that disease and pain should be endured by all who violate his settled determinations in nature, to mitigate the penalties inflicted or assuage the pangs brought on mankind by sinful conduct; as to say that truth and justice are one and eternal, and hence any man who takes part in a lawsuit by duty, through affection or for hire, must do so with a determination to pervert truth, and cause a miscarriage of justice, if he use his best endeavours to win the cause in defence of which he has or has been engaged. There is nothing contrary to the best interests of mankind in the appointment in our courts of law, of that duel of skill, that controversy upon rights, duties, and responsibilities, to which we give the name of pleading. Nor is there anything essentially base or dishonourable in the advocate's employment of the best available means for securing the success of his client. Justice requires that the fairest possible statement of each party's case should be laid before the judge and jury who are to determine respectively upon the matters of law and the matters of fact involved in a cause, and that the ripest thoughts should be exerted to bring every case to the readiest and easiest issue. Without this no cause would be safe: least of all would any cause be safe if the habit of the legal profession was to decide in the pleader's chambers upon the merits of the cases offered to him. These considerations justify the existence of the pleader's art, and the pleader's art necessitates forensic eloquence.

It is often supposed that the whole aim and intent of a legal pleader is to

"Make the worse appear

The better reason, to perplex and dash
Maturest counsels."

The idea of a matched controversy puts this idea out of place. The well-trained and athletic sinews of a pleader's mind are not wasted in gratuitous sophistries. He knows too well that the watchful eye of a lynx is on his track as he describes the course and circuit of his argument, and that any discoverable flaw in his reasoning or rhetoric will tell against him when his opponent exposes the deception. For every such deception discovered is held to prove that there was need for it; and hence, that the side on which it has been employed has got the worst of it. The

conditions, therefore, of a legal contestation-held, as it is before a judge, at least, often before a jury, frequently in presence of other practitioners of the law, always with opposing counsel, and, in theory, in open court-are highly favourable for inducing those engaged in officially conducting it, to reason well, and to speak effectively, with the minimum of sophistry and chicane of which the case will admit. Upon this feature in our courts of law we are inclined to lay great stress. The weighing and considering of a question which the certainty of a controversy compels; the necessity it creates for careful statement and explicit reasoning; the formal accuracy which it suggests and begets; and the painstaking moderation of tone it makes advisable, especially in the early stages of a suit, are all advantages in the long run, to "the man who hath his quarrel just," even although these several processes may cause him "in suing long to bide." If we regard a legalpleading as a pitched controversy we shall all the better comprehend the benefits to be derived from a study of the "Elements of Forensic Eloquence."

These teachings we have traced in our two previous papers on this subject through the three headings referrable-I. To the Client; II. To the Judge; III. To the Jury (if any); and it now falls to us to treat of forensic eloquence as effecting

IV. Opposing Pleaders.-The objects of law are the adjustment of disputed rights, the prevention of wrong, the determination of guilt or innocence. It therefore requires the weighing and sifting of evidence, the arrangement of facts and arguments, the fixing of points to be proved or disproved. Facts are its main concernment; then the interpretation of facts, and then the applicability of the positive statutes, or common law of the realm to the facts as interpreted. Right and wrong are the great questions always placed before the administrative judge. The duty of a pleader is to present his case in the best possible light in relation to his client, his opponent, the law, and the public of whose interests the law is the supreme guardian. To accomplish this properly, not only the cause, but the law in relation to that cause, require to be studied; this will supply the pleader with what to say. The laws of logic ought next to be brought into exercise to assign the best method of presenting the cause to the judgment of the hearers; this will furnish the order in which the matter should be delivered. forms of expression vary in their effectiveness, and a proper choice of these must be looked to; this will show the embellishment of which the advocacy of the cause is capable. Thorough accuracy in facts, and perfect mastery of the lines of attack and defence possible in certain probable circumstances--these will result in the imprinting of the elements of the case firmly and surely in the memory. Self-possession is no less requisite than the possession of a good cause (or what is thought or represented to be so), and hence grace and dignity of expression will be attended to by the pleader in the delivery of any address he may make to the court or the jury.

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