IN the two last lectures, which I delivered from this place, I considered the two classes of public orations, usually denominated the demonstrative and the deliberative; pointed out their peculiar characteristics; the ends, to which they are severally directed; and the arguments, especially suited to them. Demonstrative oratory, I informed you, was that species of public speaking, which consists of discourses, formally prepared, and delivered in celebration of some person or public event. I observed that, whether in the form of such public orations, or introduced incidentally into discourses of business deliberative or judicial, it included all panegyric and invective. That praise or censure was its ultimate object; honor and shame the hinges, upon which it revolved. That demonstration in rhetoric bears a meaning very different from demonstration in mathematics. That the demonstration of a panegyric is by no means the demonstration of a theorem. The one is incontrovertible proof; the other is the breath of fame. Thus, originating from the same source, the signification of the word is modified by the science, to which it applies, until in Euclid it conveys the idea of irrefragable proof; in Quinctilian, that of oratorical display. Here a solid substance; there an insubstantial pageant.
Of deliberative oratory I remarked, that the final purpose was utility. That its relation was always to future time; its issue a measure to be adopted or rejected; and the subjects within its competency, under our forms of government, the most important and extensive of any, in which oratory can be concerned. The difference between deliberative and judicial oratory, of which I am now particularly to speak, is, in relation to the objects of which it treats, the difference between time future and time past. Judicial oratory manages the litigation of causes public or private, civil or criminal, in the courts of justice. In other words it is the eloquence of the bar.
In delivering the precepts of demonstrative and deliberative oratory, little more was necessary than to form a selection, and arrange into a system the rules, prescribed by the great rhetoricians of antiquity. The nature, the character, the purpose of discourses, belonging to these classes, are precisely the same in the present, as in former ages; in our own country, as at Athens and Rome. Not so of judicial oratory. The fundamental principles, upon which a judicial cause must be managed at this time, are as different, as the institutions and the forms of proceeding, under which it arises; and, in order safely to apply any part of the doctrines of the ancient rhetoricians to our own usages and practices, it will first be necessary to indicate the difference between their judicial institutions and modes. of process and ours.
Now the common standard of all judicial arguments, according to Aristotle, Cicero, and Quinctilian, is justice, or equity; which was to be measured sometimes by the written laws, and sometimes by natural reason, independent of positive prescription; and sometimes even in contradiction to it. The tribunals of the Greeks and Romans consisted of persons, who were judges both of the fact and of the law. They also exercised a sort of dispensing power, and could exempt a party from the operation of the written law in cases, when that was deemed to act too rigorously, and to interfere with the dictates of natural equity. Something of a similar nature is still customary among us in the courts of chancery; institutions originally borrowed from the Roman law, and still governed in a great measure by the principles, established in the code of Justinian. But the powers of our chancery courts are confined within very narrow limits. In this commonwealth they are admitted only within the extent of jurisdiction, allotted to the courts of the union, and are excluded from the cognizance of all criminal cases whatsoever. The courts of common law, before which almost all our judicial controversies are tried, consist not of a single, but of a double tribunal; the judge or judges, who are authorized to decide all questions of law, and the jury, who pronounce upon every question of fact. Hence arises a division of the subject altogether different from that of the ancient rhetors. Instead of inquiring whether his cause rests upon a state of of conjecture, of definition, of quantity, or of quality, the American lawyer must ascertain whether he is to by an issue in fact, or an issue in law; a distinction not only much more clear, but much more important, since the issue in fact is to be argued before a jury, and the issue in law before the judges; tribunals differently constituted; consisting of persons different in station, in character, in powers; accessible to arguments of different descriptions; and swayed only by one inviolable common control, the written law. The whole management of the cause and the nature of all the testimonies vary according to the course, which it assumes, of requiring the determination by the verdict of the jury, or by the opinion of the court.
Let it however be remarked, because it is a consideration of material importance to the judicial orator, that this division of powers between the judges and the jury was made by the common law, not so clearly, nor with a definition of boundaries so precise, as to leave these authorities uncontroverted. In England, the country where the common law, together with this system of judicial proceedings, originated, and even in our own country, there have been very sharp disputes how far the authority of the court and jury respectively extend, and where is the line of separation between them. The ancient maxim of the common law was explicit; ad questionem juris respondent judices; ad questionem facti juratores. But in the administration of criminal justice especially it was not so easy to separate the question of law from that of fact, as to say, that they should be tried by different persons. In all trials for crimes the guilt or innocence of the party depends upon the application of the law to the fact; and, when a jury by their verdict pronounce a man guilty, they not only determine the fact, which he has committed, but also the law, by which that fact is made to constitute guilt.
In all general verdicts therefore the jury pronounce both upon the fact and the law. On the other hand, after the cause has been argued by the parties or their counsel to the jury, the judges are in the constant practice of addressing the jury, and stating to them·the law, with its application to the facts upon trial. In this part of the judge’s duty it is as difficult for him to confine himself exclusively to the consideration of the law, as it is for a jury, without implicating a decision of the law, to pronounce a party guilty. The judge explains to the jury the injunctions of the law upon a given state of facts; and to make his discourse pertinent it must be that identical state of facts, upon which they are to decide. How then can he speak the dictate of the law, without intimating his opinion of the fact? The obstacle is inherent in the nature of the thing; and the division of powers between judge and jury, professed by the common law, is not always practicable. Thus far however the lawyer has an unequivocal rule for the management of his cause. If any question of fact is involved in the controversy, the cause must go to the jury. But if the parties have no dispute upon the facts, and their contest is merely upon the operation of the law, it is within the exclusive province of the judge. Hence the parties often have it at their option, whether they will take a trial by the court, or by the jury; and there are certain forms of pleading, suited to produce an issue in law; and others, which are adapted to an issue in fact.
This system of pleas and pleadings, of which in a former lecture I have taken some notice, embraces in substance the whole code of the common law. Of its importance to those of you, who are destined hereafter to the profession of the law, it were needless for me to speak here at large, as it will occupy a great portion of your time and studies, after you shall take your leave of the university, as pupils. But it is strictly within the province of these lectures to mark its operation upon the eloquence of the bar, and to consider it, as one of the causes, which contribute to render all the precepts of ancient rhetoric so inapplicable to the practice of our judicial courts.
The forms of process, both civil and criminal, among the ancients were very simple and very general. In the accusation against Verres Cicero makes an apology to the judges for passing over the licentious debaucheries of that offender’s youth; intimating, that their turpitude was so shocking, that he could not describe them without violating his own modesty. Then, addressing himself to the culprit, he says, “fourteen years have elapsed, since you, Verres, held the office of quaestor. From that day to this I put in judgment every thing you have done. Not an hour of your life through that whole period will be found unpolluted by some theft; some baseness; some cruelty; some villany [sic]. During those years you successively disgraced the offices of quaestor, of delegate in Asia, of praetor in the city, of praetor in Sicily. From the functions of these several public stations will arise the fourfold distribution of my whole accusation.” From this passage it is apparent, that under a general impeachment the whole life, public and private , of the party charged was open to scrutiny. So that the accuser might prove against him whatever he pleased to consider as an offence [sic], civil, political, or moral. From the oration for Muraena the inference may with equal certainty be drawn, that the forms of pleading in civil causes were substantially not more difficult nor complicated. Cicero speaks of them with contempt; derides them as a compilation of verbose and unmeaning pedantry; and affirms, that amidst the multiplicity of business, with which every hour of his life was loaded, he would undertake to make himself, in three days, a perfect master of the whole science. And from some specimens, which he introduces in his argument, it is apparent, that the same identical forms were susceptible of adaptation to every case, and that the whole compass of legal controversy was reducible to one common rubric.
This looseness in the system of pleadings still continues to characterize the proceedings in the courts, founded upon the principles and governed by the doctrines of the civil law. It was diametrically opposite to the whole spirit and tenor of the common law. By the original genius of the common law a great proportion of every trial, civil or criminal, consisted of the pleadings. Every charge must be precise, specific, single. The violation of law must be alledged [sic] in terms as concise and unequivocal, as human wit could devise. Every fact must be narrated with the minutest accuracy of time, place, and circumstance. The answer must be drawn up with the same logical acuteness. Every fact, charged in violation of law, must be met by a direct denial, in terms expressly adapted to the nature of the charge. Every accusation in vague or general terms, unsupported by positive law, must be repelled by an appeal to the judge, whether the party was bound to answer. The issue consisted of a single question, either of fact for the decision of the jury, or of law for the determination of the judge.
In process of time however, as the increase of commercial intercourse multiplied the sources of litigation, this extreme strictness in the forms of the common law became often inconvenient and troublesome. The hedges of special pleading were found sometimes to obstruct the avenues to truth. The excess of caution sometimes opened to chicanery the door, which it closed upon justice. A multitude of suitors were driven to seek redress in the chancery courts; the pliancy of whose forms was more easily accommodated to the complicated transactions of commerce. Hence arose a conflict of jurisdictions between the courts of common law and of chancery; and, although the former eventually maintained their ascendency, they gradually relaxed from the rigor of their system of pleading, and by the invention of various legal fictions assimilated their forms of process in a multitude of cues to those of the civil or Roman law. The late Lord Mansfield, who for a long series of years presided alternately in the chancery and in the highest common law court of England, went so far towards affecting a complete revolution in the doctrine of pleadings, that his successors have found it expedient to retrace many of his steps. In our own country the prejudices against chancery courts have been much stronger, than they ever were in England. They were altogether excluded from the jurisprudence of this state before the revolution, and until the judiciary system of the United States obtained for them a partial admission. But the common law doctrine of pleadings has occasionally been modified by our local statutes, and by the practice of the bar. And the enlargements, which Lord Mansfield opened to the British pleaders, have generally been imitated in our courts. But all the common law maxims of pleading still remain in full force and unimpaired in all cases of criminal prosecutions. Their operation indeed generally affects only the accuser. The defendent [sic], or prisoner at the bar, is never perplexed with any subtleties of pleading. A simple declaration, that he is not guilty, termed the general issue, reserves to him every advantage of defence [sic], which he can derive the from facts or the law. But the prosecutor cannot advance a step without a written accusation, penned with.the most scrupulous, technical accuracy. There is no possibility of putting in judgment every thing, that a man has done for fourteen years. No prosecutor would be suffered, upon a charge of malversation in office, to rake up the rankness of a dissolute youth for the purpose of heaping the measure of opprobrium upon the prisoner. Had the judges upon the trial of Verres possessed powers, circumscribed within the limits of our institutions, almost all the eloquence of Cicero would have been not merely superfluous, but inadmissible. The official misdemeanors would have been cognizable by one tribunal; the private wrongs by another; the thefts and acts of cruelty by a third; and in all, every infraction of right must have been charged in language, stripped of every blossom of oratory by an article of impeachment, a writ of trespass, or an indictment. These written accusations would have marked the limits, within which all his evidence and all his argument must have been confined. Like the stakes and floating buoys, which edge the narrow channel of an expansive but shallow river, they would have continually reminded him, that he could not proceed a foot beyond them without stranding. Not a witness could he have called to any offence, not specified in the pleadings. Not a word could he without rebuke have uttered, unconnected with his allegations and his proofs. Had he lifted his torch upon the midnight revels of his adversary’s boyish days, some learned judge would have told him, that those scenes might be left to their own darkness. Had he apostrophized the Alban groves, and lakes, and fountains, he would have been stopped by a hint from the bench, that he was traveling out of the record.
While the shackles of pleading thus restrain the excursive powers of oratory on the part of the prosecution, those of the defendant, or party accused, are scarcely less cramped by another limitation of our judicial authorities. The judges of ancient times had not only the powers of deciding both upon the law and the fact; they also exercised a sort of dispensing power; or rather the power of pardoning offences [sic] was accumulated upon that of inflicting punishment. This power of pardon has in our country been most carefully separated from the judicial functions, and vested exclusively in the executive government. Among the ancients the judges had before them not only the question, whether the accused was guilty or innocent; but the subsequent question, how far his punishment should be aggravated or mitigated; and whether it should be inflicted or remitted. This discretionary power of determining the degree of punishment was even paramount to the written and positive law; a striking example of which we have in the sentence, passed and executed upon the accomplices of Catiline. The law was clear and express, that no Roman citizen should be punished with death. Yet the associates of Catiline were executed by a decree of the senate. The question, whether they should suffer death, or only perpetual imprisonment with confiscation of their estates, was earnestly debated in senate. The fourth of what are called Cicero’s orations against Catitine is upon this question; and in Sallust you have read the speeches of Caesar and of Cato upon the same occasion. From this latitude of discretion in the powers of the court we perceive the foundation of all those appeals to the passions of the judges, so earnestly recommended by·the precepts of Cicero, and so often exemplified in his practice. Hence it was, that every man under accusation was expected to throw himself upon the compassion of his judges; to assume the garb of mourning; to apply for the countenance and solicitations of his friends; to exhibit his·family in the agonies of distress; and to count upon the tears of his infant children among his most powerful means of defence [sic].
But our courts of justice possess neither the power of aggravating nor of remitting a punishment. Guilty or not guilty is the only question for the determination of the jury upon criminal prosecutions; and this question they are solemnly sworn to decide according to the evidence. When their verdict is delivered, their functions are at an end. The punishment of the offender is not within their province. The sentence is awarded by the judges, to whom in this respect some discretionary power is entrusted, in cases less than capital, to proportion the penalty to the degree of the offence [sic]. But even this discretion is very scantily bestowed. In all cases of life and death, and in many others, the judges are merely the living voices of the law; empowered barely to pronounce the decree, which that has prepared before the commission of a crime. The administration of public justice is in substance a strict logical syllogism, of which the written law forms the major proposition, the verdict of the jury the minor, and the sentence of the court the conclusion. Every man, guilty of treason, shall be put to death, says the written law. A. B. is guilty of treason, says the verdict of the jury; therefore, says the sentence of the court, A. B. shall be put to death.
This distribution of the judicial powers between judge and jury, together with this separation of the dispensing or pardoning power from both, affords a copious and a profitable subject of reflection to the legal student, and to the philosophical inquirer into the organization and principles of our government. It is a distribution and division perhaps as important to the liberties of a nation, as the separation of the legislative and executive powers, and the division of the former between two assemblies. But in the light, in which I now consider it, I am barely to point out its necessary effect upon judicial eloquence; and you will immediately perceive, that it cuts up by the roots all the precepts of ancient rhetoric, which place the perfection of the art in the address, with which the orator assails the passions of the judge. It calls for a management of causes upon principles not merely different, but opposite to those of antiquity. The common standard of judicial arguments is no longer natural justice or equity, but positive law. The first fountains of the art are no longer the same.
It is indeed true, that this difference is much greater in criminal, than in civil jurisprudence. An estimate of damages for a breach of contract, a settlement of accounts between merchants, the mere controversies of bargain and sale, are determinable in all ages and nations upon nearly the same principles; and in the very few orations of Greece and Rome, still extant, of this description, there is little, which might not with equal propriety be said in a modern court of justice. And yet, if a modern lawyer were to open an argument to a court, as Cicero begins his oration for Quinctius, by observing, that the personal influence or the suitor and the eloquence of his counsel were the two principal sources of success, he would run a great risk of a severe reprimand from the bench. If an American barrister should undertake by an elaborate argument to prove, that the Abbé Delille was a citizen of the United States, because he was an excellent French poet, if all the muses should combine to compose his oration, not five sentences of it would he be suffered to deliver. Yet examine that inimitable, that immortal oration for Archias, and amidst that unbounded blaze of eloquence, with which it beams, observe the nucleus of argument, upon which it revolves. Archias was a Roman citizen, because he was a Greek poet. Were a counsellor in the courts of these states to start a train of reasoning like this, the judges would instantly arrest the career of his oratory, by calling for the certificate of naturalization.
Yet we are not to conclude, that judicial eloquence is to be excluded from the systems of modern rhetoric. Restricted and limited, as the orator at the bar must now be, there is yet an unmeasured difference [sic] between speaking well and ill on a judicial trial. If there is less room for powerful addresses to the passions of the judges, there is more necessity for convincing their understandings. The success of a suitor does not depend upon the eloquence of his counsel; but his failure may follow from the want of it. Oratory will not prove so often the victorious auxiliary to a bad cause; but it will be an equally necessary aid to a good one.
I have thought it necessary to lay open to your minds the primary causes, which make it necessary to vary the very principles of judicial oratory from those transmitted by our ancient teachers. Many of their precepts however, in detail, may still be used to great advantage. In a subsequent lecture I shall notice. those of their instructions, which are still susceptible of adoption or modification, and suggest some further observations respecting the course, to be pursued in judicial causes under our own institutions.