IN my list lecture I informed you, that the whole science of rhetoric was divided into five constituent parts; invention, disposition, elocution, memory, and pronunciation or action. All which terms I endeavoured [sic] to explain in such a manner, that your ideas of their import might be clear and precise. Proceeding then to the consideration of the facilities which it is the object or the science to furnish the orator’s invention, I indicated the three great classes, into which all oratorical performances were divided by the ancient rhetoricians, and by them denominated the demonstrative, the deliberative, and the judicial. It will now be proper to say something more, with a view to exhibit the reasons for this division. In undertaking to reduce the most important principles of eloquence to a system of rules, it was obvious that there were certain points, the observance of which applied equally to every occasion, upon which a man should speak in public; and certain others, which could operate only when the object of the speaker was directed to some specific purpose. The scenes, upon which orators were accustomed to exercise their talents, were different. In the popular assemblies, general or particular, the subjects discussed were concerning laws to be enacted, taxes to be levied, distributions of the public force and revenue to be made, accounts to be settled, and all other things of a similar nature. Deliberation upon something to be done was the common character of a1l such meetings; and the whole drift of the orator in such debates must be to persuade his hearers, that the measure in question is useful, or the contrary. Before the public tribunals, where the litigation of conflicting rights was conducted, the question must necessarily concern some action past; and the common standard, to which the orator must exert himself to bring the cause, which he supported, was justice. But orations, written before-hand, for delivery on some public solemnity, whether in honor of individuals, of communities, or of events, neither having nor intended to have any direct bearing upon the will of other men; neither destined to influence deliberation of the future, nor decision upon the past; the luxury, not the necessity of social intercourse; the pride, pomp, and circumstance, not the broils and battle of oratorical warfare; these, from their showy character, were called demonstrative discourses; and honor was the subject.of their story. It will be obvious to you that, in regard to the character of the composition, arrangement, and delivery, there must be a great difference in the style and manner, suited to these several theatres [sic] of eloquence. That the same mode of proceeding, which would be proper for an anniversary oration, would be ridiculous upon an argument at the bar; and that neither would befit a debate upon the passage of a law in the legislature. There are some of you, who, in the course of a very few years, may be called to exhibit your talents on each of these different stages; and you will then be fully sensible of the advantage there is in forming, during the process of early education, a distinct idea of the style of eloquence, adapted to each.
A legislature then deliberates whether a law shall be past; a court of justice decides whether a wrong, public or private, has been committed; and a holiday audience is delighted or wearied, instructed or disgusted. I shall in future treat of the arguments, peculiarly proper for each of these occasions, separately; but I am first to notice essential particulars, belonging to them all.
The first and most important of these is what the ancient rhetoricians term the state of the controversy. The passages in the treatises of Cicero and Quinctilian, relating to this subject are some of the most tedious and unprofitable parts of their works, because they have continual reference to the institutions and forms of proceeding, prevalent in their times; which were very different from those, to which we are accustomed. Some of the translators, and even some editors of Quinctilian, with a freedom highly to be censured, have struck out almost the whole of his chapter on this article. Yet a full and clear understanding of it, properly applied to the usages and manners of our own times, is one of the most important points in the whole science.
The state of a controversy, or, as it is oftentimes denominated, the state of the cause, and yet more frequently by the single word, the state, has probably suggested to your minds either a confused and indistinct idea, or an idea very different from that, which it imports. When I speak of the state of a controversy, you would naturally conclude, that there must be a controversy or disputed point to be settled, and that its state meant its situation in point of time; indicating the progress, made by the parties, and discovering the ground still to be gone over. Such, in the ordinary signification of the words, would be the idea, which the s1ate of the controversy would convey. The state of the controversy among rhetoricians means quite another thing. It is the quod erat demonstrandum of the mathematicians. It is the mark, at which all the speaker’s discourse aims; the focus, towards which all the rays of his eloquence should converge; and of course varies according to the nature and subject of the speech. In every public oration the speaker ought to have some specific point, to which, as to the goal of his career, all his discourse should be directed. In legislative or deliberative assemblies this is now usually called the question. In the courts of common law it is known by the name of the issue. In polemical writings it is sometimes called the point. In demonstrative discourses it is dilated into the general name of the subject; and in the pulpit the proper state is always contained in the preacher’s text. It belongs therefore to every class of public speaking, and is not confined to judicial or deliberative oratory, where alone you would at first blush suppose the term controversy could properly be applied. It is indeed probable, that it first originated in judicial contests where it always remained of most frequent use. To the other classes it was transferred by analogy. Whoever speaks in public must have something to prove or to illustrate. Whatever the occasion or the subject may be, the purpose of the orator must be to convince, or to move. Every speech is thus supposed to be founded upon some controversy, actual or implied. Conviction is the great purpose of eloquence, and this necessarily presupposes some resistance of feeling or of intellect, upon which conviction is to operate.
I told you that the state of the controversy was one of the most important points of consideration in the whole science of rhetoric. As I have explained it to you in its broadest acceptation, it is to the orator what the polar star is to the mariner. It is the end, to which every word he utters ought directly or·indirectly to be aimed; and the whole art of speech consists in the perfect understanding of this end, and the just adaptation of means to effect its accomplishment. This may perhaps appear to you to be so obvious and so trivial a truth, as to require no illustration. And yet you will find throughout your lives, in the courts of law, in the legislature, in the pulpit, nothing is so common,·as to see it forgotten. Our laws have found it necessary to provide, that in town-meetings nothing shall be acted upon by the inhabitants, unless the subject, or state of the controversy, has been inserted in the warrant, which calls them together. In all our legislative bodies rules of order are established for the purpose of confining the speakers to the subject before them; and certain forms even or phraseology are adopted, into which every question must be reduced. Yet even this is not sufficient to restrain the wandering propensities of debate. There is a formal rule in the British house of commons, that “no member shall speak impertinently, or beside the question.” A rule, which I believe none of the legislative assemblies in our country has thought proper to adopt; and whoever has been present at a debate in the parliament of Great Britain has perceived at least with as strong demonstration the inefficacy, as the necessity of such a regulation. In the courts of law so essential and so difficult is it to bring parties or their counsel to a point in litigation, that no cause can be given to a jury, or come to the judges for decision, by the practice of the common law, until the written pleadings have brought the case to an issue, and until that issue has been joined. Now this issue, in judicial trials, as I have already observed to you, is what the ancient lawyers and rhetoricians denominated the state of the controversy. But so loose and so various are the acceptations, in which terms of science are often received in their popular usage, that I find it necessary to explain to you the real meaning even of these two words, issue and pleadings; one of which is liable to be misunderstood by a very vulgar, though not uncommon misapplication; and the other, because in common discourse it is used to signify a different idea. I have heard a divine in the pulpit say, that we might join issue in such or such a remark of some celebrated writer; meaning that we might assent to the remark, and agree with the writer. But to join issue does not mean to agree; it means precisely the contrary. To join issue with a writer is directly to deny what he affirms, or affirm what he denies, and to put the question upon trial. A divine therefore should be cautious not only how, but upon what he joins issue; lest he should find himself unawares denying exactly what he intends to affirm, or affirming what he means to deny.
The case is different with pleas and pleadings. By these words almost every person, excepting professional lawyers, understands the speeches of the counsel to a judge or a jury; and you familiarly say, I heard such a lawyer plead such a cause, and he spoke well or ill; he made a good or a bad plea. The expressions in this sense are not incorrect, because the universality of their usage has forced them into lawful currency. But to a member of the bar pleas and pleadings mean the part of a law-suit, which is written; not that, which is spoken. They mean the allegations and counter allegations of the parties to a suit; the charge and the answer; the reply and rejoinder; the conflict or opposing assertions, which must all be in writing, and by the means of which the parties must come to tome specific point of fact, or of law, affirmed on one side, and denied on the other, before the cause can be tried, or the lawyers argue the issue. The pleadings must all be finished, before the speeches of the lawyers commence. So you see pleading in the popular sense never begins, until pleading in the professional sense is over. A very material distinction! For although there may be instances in the courts, where even the lawyers’ speeches do little more than end where they began; yet the generality of suitors, as well as witnesses, would not be very willing to hear them begin where they end.
The pleadings are the provision, made by the common law to bring litigating parties to an issue, or a state of the controversy. And so anxious has the law been to obtain this desirable object, that a perfect knowledge of the doctrine of pleas and pleadings is equivalent to a knowledge of the whole science. Pleas and pleadings are the logic of the law, as the speeches of lawyers are its rhetoric; and yet, notwithstanding all these pains, those, who have been habituated to attend the trial of causes, know full well how much time is wasted, of judges and jurors, of suitors and witnesses; how much weariness is inflicted upon them, and to how much delay the public justice of a nation is subjected from the forgetfulness of lawyers to observe the state of the controversy.
In demonstrative orations and discourses from the pulpit the orator is controled [sic] only by his own judgment. Here is no formal controversy, as in the other scene of public speaking. The state, in this department of oratory, is but another word for the subject. Take up then any collection of orations, delivered on public occasions, and examine them barely upon these two questions, what is the subject; and what is the bearing of the discourse upon it; and you will soon discover, that the state of the controversy is a part of rhetoric, of which demonstrative orators are as ignorant, or as heedless, as those of the senate or the bar. The same observation does not apply with so much force to the sermons, which we are accustomed to hear from the desk, and occasionally to read in print. In this, as in every other respect, the modern eloquence of the pulpit approaches nearer to the excellence of antiquity, than that, which is heard in either of the fields of oratory, which are common both to ancient and modern times. The practice of delivering written discourses, and the frequency, with which every clergyman is required to perform this service, have naturally produced in that profession a clearer perception, and a stronger impression of the utility of methodical arrangement, and of adherence to the subject, than can ever be acquired by the practice of occasional and extemporaneous speaking. The connexion [sic] between the sermon and its text is generally better preserved, than that of any other class of discourses, with their state of controversy; yet even in the compositions of the divine, his method is often more formal than substantial, and as often marked by the breach, as by the observance.
Upon this subject however, as well as upon the topics, which are very intimately connected with it, the subtlety of the ancient rhetoricians was ever on the rack to analyze and classify all the kinds of states, which could possibly be devised. Quinctilian devotes a very long chapter to the discussion of this article. According to his usual custom he recapitulates the opinions of preceding rhetoricians, and concludes with giving his own. He apologizes for having changed this opinion since the time, when he had taught rhetoric professionally, and his ideas on the subject still appear to be indistinct or confused. He does not very clearly distinguish between the state or the controversy, as applied generally to every kind of public discourse, and the state of the controversy as confined to the practice of the bar. Nor does he seem to have settled to his own satisfaction, or to that of his reader very precisely, in what particular stage of judicial controversy the state is to be found. The difficulties of ascertaining.the true state are indeed in all practical oratory much greater, than a slight consideration would imagine. They arise principally from three sources, which in the language of the science are called co-ordinate, subordinate, and contingent states.
1. Co-ordinate states occur, when there are more questions than one, which, separately taken, and independent of all the rest, involve all the merits of the case. Such as the several charges of Cicero against Verres. Such are the impeachments of modern times, both in England and in our own country. Every article contains a coordinate state with all the rest; and they may be met with distinct and separate answers to each charge, or by one general answer to all.
Co-ordinate states are most frequent in the practice of the bar. They seldom occur in deliberative assemblies; though sometimes they may arise upon different sections of one law. In the pulpit also they are rare ; the subject being at the preacher’s election, and unity being generally a point, which he is ambitious to observe. Yet a sermon may occasionally consist of co-ordinate states. Suppose, for example, you were to take for illustration the following text; “he that justifieth [sic] the wicked, and he that condemneth [sic] the just, even they both are abomination to the Lord.” You would have two co-ordinate states, under one of which you would enlarge upon the guilt of condemning the just, and under the other upon that of justifying the wicked.
2. Subordinate states are questions distinct from the principal point; controvertible in themselves, and more or less important to its decision. They are common to every mode of public speaking. Take, for instance, that very common theme of a sermon; “and now abideth [sic] faith, hope, charity, these three; but the greatest of these is charity.” The comparative excellence of faith, hope, and charity, are the subordinate states. The transcendent excellence of charity is the main state; and the preacher’s drift is to display, not only the positive beauties of this admirable virtue, but its relative merits, by comparison with the two next highest graces of christianity.
In deliberative eloquence you will find a remarkable instance of subordinate states, skilfully [sic] adapted to the main state, in Burke’s speech on his proposal for conciliation between Great Britain and her then American colonies. His main state was the necessity of conciliation. Why? Because America could not be subdued by force. This is a subordinate state. But the proof of his main position depended entirely upon its demonstration; and it was a truth so unwelcome to his audience, that it was incumbent upon him to place every part of his argument beyond the power of a cavil. The depth and extent of research, the adamantine logic, and the splendor of oratory, with which he performs this task, has in my own opinion no parallel in the records of modern deliberative eloquence. It was for wise and beneficent purposes, that providence suffered this admirable speech to fail of conviction upon the sordid and venal souls, to whom it was delivered. As a piece of eloquence, it has never been appreciated at half its value.
3. Incidental states are questions, arising occasionally, and more or less connected with the main question, without being essential to it. They are common to every species of oratory, though of rarer use in the desk, where,they generally partake of the nature of digressions. But in legislative assemblies every proposition for an amendment, offered to a bill upon its passage; and at the bar every occasional motion for the postponement of a trial, the admission of a witness, the disqualification of a juror, or the like, introduces an incidental question, having some relation to the main state of the controversy.
These are some of the causes whence it so often happens, that public speakers deviate from their proper subject; and from these you will at once perceive the difficulty and the necessity of eager attention to the state of the controversy. I shall not trouble you with the metaphysical refinements of the ancient rhetoricians, and their inexhaustible multiplication of states. It will suffice to say, that Cicero and Quinctilian reduce them to three; which they call the states of conjecture, of definition, and of quality; equivalent, as they are explained by Cicero, to the questions, whether a thing is; what it is; and how it is; to which Aristotle and some modern writers have added a state of quantity, or whether the thing be more or less. For example, the state of conjecture is what in our modern courts of justice, is termed an issue of fact. All trials by jury therefore are upon questions with the state of conjecture. The reason given for thus calling it is, that, being a question of fact, asserted by one party and denied by the other, the decision depends upon the conjecture of the judge. If this conjectural etymology be correct, it implies no very flattering compliment to the ancient practice of the law; since it insinuates, that, after all the labors of the learned counsel, the judge is left to decide the question by mere conjecture or guess. One would suspect, that the rhetorician, who first gave the name, meant more than meets the ear, and sheathed a sarcasm in a definition. Quinctilian tells us indeed, that “conjecture is a certain direction of reason towards truth; whence interpreters of dreams and omens were called conjectors [sic].” But conjecture, if a certain, is by no means a sure direction of reason towards truth. Its essence on the contrary is uncertainty. The illustration, which assimilates the decision of a question of fact to the interpretation of dreams and omens, was doubtless very seriously adduced by Quinctilian; but how far it helps the matter I leave for your judgments to determine; only adding my most earnest recommendation to every one of you, who may hereafter have occasion to address a jury of your country, that you would entertain a nobler idea of your profession and of its duties, than to leave the cause to be determined upon a state of conjecture, or by the interpretation of a dream.
The states of definition, of quality, and quantity, are all included under the denomination of issues in law in our modern courts of justice. Indeed it is difficult to say what great point of discrimination between them could induce the ancients to place them under separate heads. The state of definition, for instance, is said to be a case, where the fact is admitted; but the question relates to its nature, or how the act should be defined. The instance alledged [sic] by Cicero is of a consecrated vessel, pilfered from a private house. The question is, whether this act were theft, or sacrilege; and the determination depends upon the definition of these two crimes. This state is yet very common in trials at the bar upon criminal prosecutions; as there are many offences [sic], which, according to the circumstances, with which they are committed, assume a lighter or a deeper dye, are known by different names, and punishable with different penalties. Thus theft, according to the value of the article stolen, is called grand or petty larceny. Attended with violence to the person, becomes robbery; and, if with breaking open a dwelling house in the night-time, blackens into burglary. These, according to the ancient rhetoricians, might all have been states of definition; that is, when the facts upon a trial concerning them were admitted, their criminality would depend upon the definitions of the crimes. But they might also have been states of quantity; that is, whether the specific act committed was more or less aggravated; whether it was burglary, or robbery, or simple theft. The state of quality is upon agreed facts; but the question is whether they were right or wrong. Not what were the gradations of guilt, but whether there was any guilt at all. But all these distinctions will be of little use to you. In modern practice they are all solved in the clear and substantial distinction of issues of fact, and issues of law. Thus, in the case of Roscius Amerinus, Cicero’s oration is upon a state of conjecture; whether Roscius committed the deed; and under our usages would have been an issue in fact. But in the case of Milo it was a state of quality. The fact, that Clodius was killed by Milo or his servants, was undisputed; but Cicero argues, that the act was justifiable self-defence [sic]. By our customs it would have been an issue in law.
Thus much for the doctrine of rhetorical states; and to sum up all. that I have said concerning them, you will observe, that the term is used in two different senses; under one of which it is only another word for the subject of the speaker’s discourse, and is applied to every species of public oration; while under the other it is limited to judicial practice, and is. equivalent to what the common lawyers call the issue. Having thus a clear idea of what the word means, to make the knowledge of use to yourselves and others, the only purpose, for which any knowledge is worth acquiring, let your reflections turn upon the importance, and upon the difficulty to every orator of fixing, and adhering in all public discourses to the state of the controversy, or cause. But it is also of high importance to the hearer of every public speaker. In that point of view it is material to you all. For although some of you may never intend to follow the practice of public speaking, yet you will all occasionally be hearers; and, with your advantages of education, all will be expected to be judges of the public orators. You have been justly told, that there is an art in silent reading. The art of collecting the kernel from the shell; of selecting the wheat from the tares. Let me add, for it is only another modification of the same truth, that there is an art in hearing. And one of its most elaborate exercises is to ascertain the state of a public speaker’s discourse. An art perhaps as rare, as that of oratory. Pope has very justly represented this contagion of judgments without reflection.
‘Tis hard to say, if greater want of skill
Appear in writing, or in judging ill;
But of the two less heinous is the offence
To tire our patience, than mislead our sense.
Some few in that, but numbers err in this;
Ten censure wrong, for one, who writes amiss.
And these observations apply to speaking, no less than to writing. A great source of erroneous judgment upon public speaking arises from the bearer’s neglect or incapacity to ascertain the state of the speaker’s cause; yet in this are involved all the essential parts of a correct judgment. From this alone can a just estimate of the merits both of the subject and of the speaker be formed. Listen to the criticisms you will hear on a divine in the pulpit, on a legislator in in [sic] the general court, on a lawyer at the bar, and nineteen times in twenty to what will they amount? To a comment upon some unusual word; to a cavil upon some grammatical anomaly; to self admiring derision at the detection of some unlucky blunder; and to profound admiration at the glitter of some flashy metaphor. These are the trappings and the suits of oratory. They can no more qualify the auditor to pronounce upon the character of a discourse, than a pearl necklace can enable you to judge of a woman’s beauty, or a diamond ring can indicate to a surgeon the soundness and vigor of a man’s constitution. The state of the cause in rhetoric is the inward man; the internus homo of the anatomists. Here is the seat of life; here all the functions of vitality are performed; and here alone the nature of the being is to be found. But this is not to be discerned by a vacant eye, roaming without direction over the surface. As speakers then or as hearers, let your first attention always be directed to the state of the controversy. Acquire the habit of this attention here, by its employment in all your exercises of composition; and it will soon need no other recommendation, than its own success. Were I required to point out any one thing, which most forcibly discovers the inventive powers of a speaker, the infallible test of oratorical ability, the stamp, which distinguishes the orator from the man of words; I should say, it is the adaptation of the speech to the state of the controversy.