Law is the deliberate expression of the highest conception of duty to which a nation has attained. It prescribes the limits of individual activity, and sets bounds to the need of personal endurance. It marks and enforces the distinction between just and unjust; and, accepting the ethical ideas of right and wrong as silent, but tangible powers among men, it establishes an order in their relationships which shall be at once availing and prevailing; for the enforcement and preservation of which it decrees an order of sequence between any transgression of the requirements of civil life, and the exaction or infliction of the penalties attached to each infringement.

Religion educates and exercises the conscience, morality regulates the will, and law governs the conduct or actions of men. Man, says Montesquieu, "is left to his own direction, though he is a limited being, subject, as all finite intelligences are, to ignorance and error; even the imperfect knowledge he possesses is blinded by his animal nature, and he is hurried along to evil by a thousand impetuous passions. Such a being might at any instant forget his Creator; God has, therefore, reminded him of his duty by the laws of religion. Such a creature is liable every moment to forget himself; philosophy has provided against this by the laws of morality. Formed to live in society, he might forget his fellow-creatures legislators have, therefore, by political and civil laws, constrained him to his duty."* "Political society was formed," according to Aristotle," that men might live, and it continues to exist that men may live happily." In the spirit of this precept Bacon also affirms that "the purpose and scope of laws, whereto their decrees and sanctions ought to tend, is the happiness of the people,"-to effect which they "must be clear and certain in their sense; just in their requirements; capable of accomplishment; in harmony with the form of government; and productive of virtue in the subject." Law is the word in which we sum up and name the whole of those dictates, to which communities consentingly submit, regarding right and wrong as these are expressed in the statutes and ordinances of the Government, interpreted in harmony with the history, manners, life, and religion of the people, the rules of right reason, and the current of public opinion. All decrees having the force of law must, of course, be fixed in accordance with the usual forms of legislation, be promulgated in a fair and open manner, be expressed in an explicit style, and have a clearly defined purpose. If they are enforceable by pains or penalties, these should be inflicted or exacted only on due proof of violation made before competent and properly constituted tribunals, sitting in formal official activity, and exercising their prescribed functions in the usual manner, and for their assigned purpose, i.e., in "fair and open court."

Law, in this sense, is not a mere mass of technical verbiage, or a tortuous complexity of details, a solemn juggle, or a state hypocrisy, a grotesque, deceptive mummery, or a licensed tyranny,

"Spirit of Laws," book I., Chap. i.

a stiff and crabbed huckstering of power, or a stereotyped "delusion and snare," but is " a terror to evil doers, and a praise and protection to those who do well."

Law has now become so pervasive as to affect all civil society, and to exert an influence upon each individual. The pertinence, applicability, and incidence of law interests all men, and few cases arise in which the question can be found so isolated as to affect no other matter than that involved in its own settlement. Society has a direct practical stake in almost every law suit, in the issues it raises, the arguments by which it is enforced or opposed, as well as in the decision, to which it furnishes the occasion. To have every question thoroughly pondered and duly discussed, to have the light of many minds thrown on it, to have it subjected to specific analysis, to have its "bearings on men's duties and desires" considered, and the nature and necessity of the claim advanced criticised, are advantageous to society; and hence it finds it useful to arrange the activities of its members, so that some may engage themselves as middle men between the law and the individuals of whom it is composed. To these the culture of forensic eloquence is left, and the critical consideration of the incidence of law on life is wisely mapped out as a province of human endeavour.

Laws may be either declaratory, directory, remedial, or prohibitive. The first class is expository, and its object is to instruct the subject regarding the requirements of the State in respect to specific actions or kinds of actions. The second class is prescriptive. It limits or extends the boundaries by which civil society encircles the free activity of the individuals who form its constituents. The third class provides against injuries, inconveniences, or wrongs, so far as they are preventible, by withdrawing restrictions on, or removing obstacles to, the free course and operation of justice and order. The fourth class forbids the omission of the duties of men as members of a civic union, or the commission of any (avoidable) injury to the persons composing the social confederation. This restrictive, evil hindering species of law is generally accompanied by some privitive or vindicatory provision, by the application of which observance of it is enforced. Indeed to all laws, more or less, the sanction of pains and penalties is attached, so that either by the deprivation of right, or by the infliction_of_retributory or reformatory suffering, on purse or person, obedience may be secured. Laws may be otherwise regarded as civil or criminal. Civil law provides for the defence of right and the redress of wrong, by the enforcement of restitution or compensation in actions or transactions between subject and subject. Criminal law brings under the punitive power of the State all persons charged with breach of duty, or violation of right, in matters which are regarded as public injuries; that, on due inquisition being made, if the guilt charged on the alleged offender is proved, he may be proceeded against in accordance with the provisions of the statutes infringed. Many other subdivisions of law are also commonly spoken of; e. g., ecclesias

tical, military, commercial, marine, &c., &c., all of which are reducible to the general definition, that they constitute a body of fixed rules for the procuring and securing of the rights and privileges of the obedient and deserving, and for the arrestment and suppression of offences, by the degradation or punishment of transgressors. All of them suppose and imply a generally acquiesced in standard of right, to which submission is proper, and insubordination wrong.

Seeing that human life is so embraced and permeated by law and that the complex relationships of men demand the continued arbitrement of judicial decisions on so many points of practical activity, the expediency of the institution of forensic pleading has been, as we have said, generally acquiesced in as an advisable, if not an essential, subdivision of civic activity; and hence, of course, has arisen the need for a specific sort of eloquence-an oratory in which law, logic, and life should obtain united representation, be harmonized together, and be shewn to be mutually effective in the maintenance of the right, the good, and the true. This is the eloquence which in addresses to juries, in arguments before judges, in speeches to parliamentary commissions, or the loftiest courts of human appeal-such as the House of Lords-vindicates at once the majesty of justice and the rights of man; invokes the retribution, or supplicates the leniency of society; or brings under the protection of the State the innocent and unoffending, or tears from the pride of place and power the transgressor against the interests, the policy, or the institutions of civil society.

The foregoing remarks on law and its processes are made by a person unskilled in professional knowledge. They embody the results at which he has arrived after the perusal of a considerably extensive quantity of jurisprudential and legal literature-not expressly technical. In their general effect he believes they may be regarded as conformable to the teachings on the same points found in juristic writers. This, however, as it seems to him, is a matter of minor importance. In this series of papers law is regarded as a system of means for the attainment of certain ends; and forensic eloquence forms only one of the means by which the law is brought to bear upon the personal interests of men in the enforcement or modification of enactments, duties, or sanctions. The observations to be made are to be understood, as in some sort, those of a rhetorician, and not of a legist. We do not attempt to offer a philosophy of law; but only an exposition of the principles which lie at the foundation of the oratory employed in forensic disputation, or in the course of the actual administration of law as it is.

Forensic oratory has laws and principles of its own. Of these we must form correct estimates before we can thoroughly comprehend the necessity for constructing a special rhetoric for use at the bar, or appreciate the peculiar requirements of judicial oratory. Popular parliamentary or pulpit eloquence is either presentative or representative, either enlarges upon and explains some thought which

stirs the speaker's mind, or states and demonstrates the ideas entertained by large bodies of people. The pleader does not appear in court to express his own independently formed convictions, nor does he even appear as the mouthpiece and retailer of the wishes of his client. He is neither entirely a representative, nor wholly a substitute. He takes his professional place as a sort of compound personality. He attends, it is true, to say, do, quirk, and tack about, with every faculty of his mind, as his client would be entitled to do if able; but he also appears as counsel for his client, with responsibilities, as such, to the court, his profession, the law, and public opinion, as well as to the person in whose behalf he appears as advocate. He is not a mere trader in legal learning, or vendor of technical casuistries, but a gentleman whose professional status is regarded as a guarantee for the due and proper conduct of any given case for the interests of his client as far as the law allows. The conditions, therefore, under which he acts, constitute so many overruling elements influencing eloquence in such a way as to make forensic oratory often a very intricate and embarrassing procedure.

In ordinary eloquence thought is mistress of herself, and acts and manifests herself in a spontaneous manner. In forensic eloquence a fixed and definite purpose, external to, and compulsory upon, the thinker, at once excites and subordinates the exertion of the mind, superintends its development, and in a considerable degree necessitates its form. The currents of reflection are not allowed to flow in self-made channels, but must be turned into such artificial courses as are requisite to bring its forces and freight to the required points. The living energy of thinking is constrained, and the pressure of an outward and imposed influence affects its activity, and modifies its direct, forthworking impartiality, as well as its natural inductiveness. In the common exercises of oratory the pathway of thought is free. However the buoyancy, sprightliness, and animation of the intellectual powers see fit, they may exert themselves. Logic may restrict, and rhetoric may advise, but beyond these usual rulers of thought few impediments lie in the forward course of the thinker. In law it is far otherwise; statutes, customs, judiciary rules, precedents, and technicalities, oppose or hinder progress, cause divergencies, or make a circuit advisable or requisite. The disputatious form, too, in which the whole thought must be cast, and the need for leaving as few loopholes of vantage to an opponent as possible, give rise to other peculiar characteristics of forensic thought.

If to these we add that forensic oratory is for the most part engaged in under the consciousness of a multiplex criticism, from the sedate and stern occupant of the judgment-seat, often from the practical, common-sense gentlemen of the jury, always from the opposing agent, and nearly always from a multitude of professional brethren, we shall have made out clearly that considerable differences exist between forensic and popular oratory.

These specialities must have made themselves apparent to anyone who has watched the process of a trial in any of the courts of law

or justice. They have seen the presiding judge or judges with moveless equanimity listening to the statements and harangues of the costumed pleaders, who seemed with all the dexterity of perfect adepts to unravel the mysteries of a case, and to the subsequent contest of points of law or fact between the antagonist counsellors; they have noticed the impannelled jury watching the turning of the topics, and the enforcement of the pleas of the respective advocates, and seen their countenances change, and their attent eyes waver when the close quibbling of the expositors of the respective cases was going on; they have seen the members of the bar ingeniously examining the various "moves" of the engaged pleaders, and observed the effects which each exertion of skill had upon those men themselves accustomed to the active play of mind against mind. While doing this, the spectator cannot but have reflected on the hazards to which eloquence is exposed in passing through an ordeal of criticism such as we have here merely hinted at.

Hedged in by statute and precedent, prescription and form; by positive morality and professional etiquette; by clients' clamour and critics' inquisitions; by public policy and personal status; by legal process, and by social requirements, forensic oratory is no mere juggle of shuffling trickery or grotesque parade of lacquered hypocrisy as it is often thought to be (and sometimes, let it be confessed, becomes), but a needful and requisite agency for the proper oncarrying of human affairs, demanding specific preparation, and necessitating a style of speech suitable to the fashions and exigencies under which it is practised.

It has been often debated whether the art of advocacy is permissible by the severe code of morals professedly adopted as the " top of judgment" on questions of morals, the gospel. This is not the place to enter into a consideration of the affirmations and negations possible on the subject. But we are not precluded here from mentioning that the ground suggested, a few pages before, sweeps away, as it appears to us, the common arguments employed, even by lawyers themselves, either in the attack or defence of the morality of legal pleading.

Unwilling as we are to moot, still more to prejudge, any debateable point in the pages allotted to these articles, we can scarcely hold ourselves free from a statement of the reasons for the necessity-if not the justifiability—of forensic eloquence. For if it be absolutely immoral and reprehensible, we should be ill able to escape blame if we become expositors of a scheme for its efficacious culture; and if it be a useless and nugatory formality, if we solemnly philosophize upon the principles underlying such a stereotyped folly, we should at least become chargeable with being the aiders and abettors of that folly. Either way, we should be scantly wise or "indifferently honest." We might, of course, appeal to it as an actuality, and claim the privilege of interpreting it, mummery though it were. But that would merely change the field, not alter the question. Without prejudice, therefore, to any possible debate on the positive