FROM the tenor of my preceding lectures you must have collected, that, while the principles of demonstrative and deliberative oratory are the same in every age and country, where the art is practised [sic], those of judicial eloquence must be varied and modified by the laws and judicial institutions of the time and place. The importance of this idea must plead my apology for dwelling with earnestness upon its developement [sic], for recurring again to it at this time, and for presenting it, with the hope of giving it additional illustration, under another point of view to your reflections.
Observe then, that demonstrative and deliberative oratory are not of necessity connected with any particular social institutions. The subjects of panegyric, of invective, or of deliberation, are indeed diversified under different forms of government, but do not necessarily result from them. An eulogy or a philippic may be pronounced by an individual of one nation upon the subject of another. Deliberation may occur between persons, bound by no social compact together. Civil or political institutions may incidentally be the subjects, but are not of the essence of such discourses. Praise, censure, exhortation, and advice are dispensed and bestowed by man, as a rational being, to his fellow creature, endowed with the same faculty. The Greeks and Romans, as we have seen, allowed much of the same latitude to their municipal tribunals. But under our improved theories of natural and social rights positive institution is the indispensable ingredient of all judicial discourse. The whole amount of every trial can be neither more nor less, than a conflict between law and transgression. To try a man by the laws of one nation for an offence against the laws of another would be at once the extreme of oppression and the height of absurdity. The common standard then, by which all judicial argument must be measured, is law; the whole drift of an advocate’s eloquence, to display the conformity between the cause, of his client and the law; the whole purpose of a prosecutor, to vindicate its violation; the whole defence [sic] of innocence, to disprove its infringement.
Now the particulars in our judicial institutions of the most material importance to the forensic speaker are three.
1. The division of all offences against the laws into public and private wrongs; with the consequent distinction between courts of criminal and civil jurisdiction.
2. The division of public wrongs into two classes; personal wrongs, which may be committed by every man, as an individual; and official crimes or misdemeanors, committed by public officers, and triable by impeachment. And
3. The division of powers, mentioned in my last lecture, between the judges and jury, in the course of ordinary jurisdiction; and the separation of the power of pardoning offences from both.
1. Under our state of society every individual is entitled to certain rights, recognised [sic] and defined by the original social compact, or by the laws, enacted under it. It is the primary object of civil society and of government to protect every individual in the enjoyment of these rights. Some of them are of such magnitude, that their support and vindication are exclusively retained in the hands of the body politic itself, while others are secured to the individual only by a pledge of assistance from the public authority, whenever its aid may be found necessary. Such is the distinction, so well known to all lawyers, between private and public wrongs; the private wrong consisting of the violation only of the right of individuals; the public wrong, in an outrage upon the rights of the whole political society. Thus a breach of promise, a non-payment of debt, or a disputed title to land, is barely a private wrong, for the redress of which the injured party is autherised [sic] to call upon the powers of government; but which he must first prove by suit in his own name, and at his own risk, before the competent tribunals. But treason, robbery, murder, theft, and all those offences [sic], which are included under the denomination of crimes and misdemeanors, are of so much importance to the whole society, that, although the direct injury, committed by them, often affects only an individual, the cause is adopted, as that of the nation; and the punishment of the offender is prosecuted in the name of the sovereign. Hence the distinction between the civil and criminal jurisdiction of our courts; a distinction sedulously to be remembered by the judicial orator, because, although these jurisdictions are among us united in our highest courts, yet there are different rules of evidence, different maxims of law, and different modes of practice, established in them. Under the civil jurisdiction the cause is brought forward by the party, and is called an action; under the criminal jurisdiction it is prosecuted by the government. In civil causes the controversy is only between two or more individuals, the plaintiff and the defendant. In criminal causes it is between the public on the one side, and the person accused on the other. The right of action must be pursued by the individual himself, or by his agents. The public wrong is not entrusted to the pursuit of any individual. Select bodies of men are from time to time appointed, whose task it is to inquire into all such offences [sic], committed in their vicinity, and to present them to the competent courts for trial. The accusation is drawn up under the name of an indictment, and is managed by a permanent public officer. The person accused is then arraigned, and usually pleads, that he is not guilty of the of the offence [sic], charged against him; and by this answer he makes it necessary for the attorney general, or person conducting the prosecution, to prove both the law and the facts. If the accusation fail in the proof of either, the accused must be discharged.
The influence of these particulars in our judicial institutions upon the eloquence of the bar will be most readily discerned, by recurring to the instructions of the ancient rhetoricians for the management of judicial argument, and observing what would now be their application.
They make no distinction between causes of civil and of criminal jurisdiction. Their rules and precepts are all calculated for the management of criminal prosecution or defence [sic]; and they tell us that all the necessary variations upon the conduct of civil causes will be so obvious to the practitioner, that they need not to be specially indicated. In our courts so great is the difference between these two descriptions of cases, that the same rules, which would be prescribed for the one, must be proscribed for the other; and the same practice would appear on one side in the form of injunction, on the other in that of prohibition.
Thus for example Quinctilian lays it down that, in discussing the state of conjecture upon. a question, whether the party accused is guilty of the crime, charged against him, the course of inquiry will be directed to three distinct points; the will, the power, and the fact; that is, that the natural division of the prosecutor’s argument must be to prove, first, that the accused had the will to commit the offence [sic]; secondly, that he had the power; and thirdly, that he actually did commit it. The means of investigating the first of these points, the will, are largely discanted upon by Quinctilian. The object was to scrutinize the motives of the inculpated party; to pry into his general impulses to action, resulting either from personal character or from special inducement. Thus, if a man was accused of murder, his prosecutor was to labor in the first instance to establish the belief, that his personal character was bold, rash, violent, cruel; that he was addicted to turbulent and angry passions; or that his interest was liable to be promoted by the result of the act. The argument, derived from interest, was indeed deemed so forcible, that we learn from Cicero, it was a general salvo for all deficiencies of other evidence in the practice of a celebrated Roman judge, whose only question to ascertain the criminal in all doubtful cases was, cui bono; who was to be the gainer by the deed. A great proportion of argument, in all the judicial orations of Cicero himself, is devoted to this investigation of motives, or research into the will. His address in handling the subject will always command our admiration; and the inquiry naturally leads an ingenious and reflecting mind into a profound and acute perception of the operations of the human heart. But the principles of our criminal jurisprudence by no means admit so great a latitude of inquiry, nor open such a range for eloquence upon presumptions, drawn from the will. The humane maxim of the common law considers every man as innocent, until he is proved guilty. The general reputation, the personal disposition, or even the incitements of passion or interest to the commission of a criminal act, may indeed occasionally have an involuntary weight upon the mind of a juror; but they are scarcely ever topics, upon which a prosecutor can enlarge. The sound and merciful logic of our laws always infers the motive from the action, and not the action from the motive. The mercies of the common law are not entrusted to the discretion, nor to the passions of individual judges; they are converted into fixed and uniform principles. In our criminal jurisprudence justice herself holds an uneven balance. She never lifts her scales without throwing the weight of mercy into that of the accused. She lays no claim to impartiality. She avows freely her preference, that ten guilty should escape, rather than that one innocent should suffer. She not only permits, but commands her judges to be of counsel for the prisoners. She directs juries, even though the balance of the testimony should preponderate against the accused, yet if a reasonable doubt can be raised in his favor, to dismiss him unpunished. She catches with eagerness at every gleam of probability, which leads to acquittal. She admits with reluctance even a certainty, which compels conviction.
Hence you will readily perceive, that the principles for the management of a criminal prosecution are toto coelo different from those for conducting its defence [sic]. The inquiry into the will, the motives, or the interest of the party can seldom afford any assistance to the prosecutor; but it may be of material service to the defendant. The attorney general is rarely indulged with an opportunity of arguing the guilt of a culprit from his personal character, or common fame. Still less can he urge, as a proof against him, that his interest was promoted by the event. But these topics may be employed with success in favor of the accused. An irreproachable character, a fair reputation, are presumptions in favor of innocence, of which a skilful advocate never fails to avail himself. Still more confidently may he rely upon the efficacy of arguments to show, that there was no temptation of interest, that could operate upon his client to stimulate his commission of the act; and if his interest can be shown to have suffered detriment from the issue, it furnishes an argument of the most conclusive nature in his behalf.
The second source of argument, mentioned by Quinctilian, is the power; a track of reasoning more exclusively confined to the defence [sic] of causes in our criminal courts, than even that of the will. A public prosecutor, who should at this day attempt to raise the conclusion, that a prisoner at the bar was guilty of the crime charged against him, upon so frail a basis, as that he had the power to commit it, would be suspected of having lost his senses. But nothing is more natural and more usual in a course of defence [sic], than for the party to alledge [sic], that the act imputed to him had not been in his power. The most usual form, in which this defence [sic] appears, is in undertaking to prove, that the accused was at the time, when the crime was committed, in another place;. a defence [sic] perfectly decisive of the cause, when clearly made out; but which has been so often resorted to by desperate offenders, who depend only upon the testimony of their accomplices to accredit the fact, that to set up an alibi is proverbial among those, who are conversant in the practice of our criminal courts, as the last, desperate refuge of an all but convicted felon. In ordinary cases therefore this defence [sic] terminates in a question upon the credibility of the witnesses; for however desirous all juries are to find the person upon trial innocent, they understand too well the common refuges of guilt, lightly to credit the pretence of an alibi.
There remains then only the third of the points, recommended by Quinctilian to the consideration of the judicial orator, which in our courts of justice affords materials for argument both upon the prosecution and the defence [sic]; that is, the discussion of the fact. Upon our principles the fact, once proved, renders all investigations of the will or the power useless; and without proof of the fact no indication of the will, no demonstration of the power is admissible.
The general result, which the judicial orator must draw from the division of offences [sic] into public and· private wrongs, and the consequent distinction between the civil and criminal jurisdictions are, that a speaker at the bar must conduct the prosecution and the defence [sic] of a criminal cause upon principles altogether different, and in some respects opposite; and that those for the management of a civil action again essentially differ from both. On a civil suit, a mere controversy between party and party, the rule of perfect impartiality returns to govern our courts and juries. No bias in favor of a defendant is allowed; no destruction; no permission even to the judges to be of counsel for him; no direction to the jury to grasp at every rational doubt, as conclusive in his favor. Justice again becomes even-handed; she balances probabilities; she admits on both sides inquiries into the will and the power, as well as into the fact; she receives the testimony of written depositions, which on all criminal trials she rejects. The parties stand in court on equal ground, and their advocates possess precisely the same latitude of discussion. This difference is peculiarly remarkable in those cases, which are included both among the public and private wrongs; such as assault and battery, defamation, and libels. For these acts a man is liable to a double prosecution; one by the party injured, for·the damage specially sustained by him; the other by the public, for the violation of the peace. But so different are the maxims, upon which these two trials of the same act are conducted, that on one of them the testimony of the complainant himself is received, while on the other it is rejected; nor is it unusual to see a man acquitted and convicted of the same act by these two forms of process.
2. The division of public wrongs into two classes, personal offences [sic], triable, as I have above described, by jury, and official offences [sic], triable by impeachment, forms the second of those circumstances upon which every modern American system of rhetoric ought to be constructed.
By the constitution of the United States, and by that of this commonwealth, the senate of the Union and of the state are respectively constituted courts for the trial of offences [sic], committed by public officers in their official capacity. The power of impeaching such offenders is in both cases exclusively given to the house of representatives; and the power of the senate extends no further, than to remove the person impeached from office, and declare him disqualified from holding any other office of honor, trust, or profit. The operation of this trial is only upon a man’s official capacity; for he may individually be tried again by indictment for the same act, upon which he has been tried by impeachment.
Impeachments are events of so rare occurrence, and a judicial orator will so rarely be called to take a part in them, that it can scarcely be necessary to spend much time in prescribing a formal system of rules for his observance. As the power of accusation is entrusted only to a branch of the legislature, its exercise is assimilated as much to deliberative, as to judicial functions. The question in every individual case, whether the house will impeach, is purely deliberative; and is decided like all others of a similar nature. When the impeachment is resolved upon, the house usually appoint a small number of their own members, as managers for its prosecution. The senate sit as judges both of the law and of the fact; but a concurrence of two thirds of the members is essential to the conviction of the person impeached.
The field of argument, opened upon a trial of this description, is obviously very different from that presented by an ordinary jury trial. The subject in controversy is the discharge of official functions; the questions at issue are upon the nature and extent of public duties; and the interests implicated are those of the nation at large. The principles of the ordinary criminal jurisprudence are partially, but not entirely applicable to the proceedings of this extraordinary tribunal. The judges are less rigorously bound to consult alone the prescriptions of positive law. Moral and even political considerations may contribute in some degree to the formation of their judgment. They may therefore be urged both upon the attack and the defence [sic] of these charges. But if it should ever hereafter be the lot of any of you, as probably it may, to be called to act in cases of this nature, whether as prosecutors or as judges, the most important precept I can give you, and that, which I most earnestly wish you from this day to remember, is never to make impeachment, nor, as far as may depend on you, never to suffer it to be made an engine of party.
3. The division of the judiciary powers between the judges and the jury, and the separation of the dispensing or pardoning power from both, have already been largely considered in my preceding lecture. You have there seen that in general questions of law are to be argued to the judges and questions of fact to the jury. The materials of argument are therefore as different, as the characteristics of the persons, to whom they are addressed. To the bench their common centre [sic] of reference is the law; to the jury they hinge almost entirely upon the evidence.
The judges are always few in number; often there is but one. They are usually men of profound legal learning, trained to their office by a long course of study. and a career of full practice in the profession. The tenure, by which they hold their offices, is permanent during good behavior [sic]; which in ordinary cases is equivalent to a tenure for life. The rule of their duty is uniform and invariable; having nothing to consult but the law. With minds so highly cultivated, and with a line of duty so clearly marked out, they are generally inaccessible to any influence of passion. They are not to be swayed by the artifices, which are sometimes successful in deliberative assemblies. It is vain to address any application to their hopes or their fears. They are not allowed even to indulge the most amiable weakness of compassion. As ministers of the law, they are bound indeed to dispense the mercies of the law; but these, as I have shown you, are not left to their discretion. The benefits, provided for the party upon a trial, are secured to him as a right. They are not discretionary in the breast of the judge. These are all intended for the protection of innocence. Mercy should sometimes also be extended to the guilty. But this power the laws have chosen to vest elsewhere. A compassionate would therefore be a guilty judge. When the judge ascends the tribunal, he must leave his heart behind him. There he must be all head; all intellect; impassive and impenetrable to the sensibilities, the most endearing to the human character. Whatever conviction can be carried to his mind must be accomplished by the means of cool, solid reasoning and lucid developement [sic].
Our juries consist of a very different description of men. They are occasional and not permanent bodies; selected for a single cause, and consisting of the same men, only during one session of a court. They are appointed from among the respectable citizens of various employments; but the members of all the learned professions are either exempted or excluded from service upon them. There are of course no regularly bred lawyers, and few men of refined mental cultivation among them. Their principle, and in most cases their only functions are to ascertain controverted [sic] facts. For even when they decide upon the law, as by a general verdict they always may, they usually receive it from the bench, and pronounce conformably to the opinion of the judge.
Thus then it follows as a corollary from our judicial institutions, that an argument to the court is essentially a disquisition of law; an argument to the jury, a comment upon evidence. In both the ultimate object of the orator is not to persuade but to convince; the triumph of the art to operate not upon the will, but upon the understanding. To accomplish this an able advocate must vary the style and substance of his discourse to suit the diversities of situation and characteristics of the two auditories [sic]. To the bench his most powerful instrument of conviction is profound and accurate deduction. To the jury his most effectual weapon is copious elucidation. His address to the judge should be concise without obscurity; to the jury, copious without confusion. He must incessantly bear in mind, that the court is not an ignorant, nor the jury a learned body of men. The consummation of eloquence is in the adaptation of the ideas in the speech to the ideas already in the minds of the hearers. To the judge it will suffice to present results. To the jury you must often unfold principles.
The customary mode of transacting business in our judicial courts makes it seldom possible, and perhaps never advisable to address either the bench or the jury in speeches, previously written. In criminal causes the testimony must all be oral, delivered by witnesses in open court. The cause always takes its complexion [sic] from their relations, and after they have been heard the counsel are scarcely ever allowed any time for preparation. Their discourse must be immediate and extemporaneous; and when a case comes on for trial, the advocates, by whom it is managed, seldom precisely know themselves what its state will be. The examination and cross-examination of the witnesses is itself one of the severest tests of a lawyer’s talents. The testimony often assumes its color from the feelings and character of the witnesses. They are sometimes unable and sometimes unwilling to testify what they really know. They are sometimes inclined to put their own gloss upon the facts, to which they are knowing, and sometimes need reminding, that the truth and the whole truth are not always identically the same. They are often discovered to have their partialities, and to sympathize too much with one of the parties. Even with a sacred and inviolate regard for truth, different witnesses often relate the same transaction with great diversities of circumstance. One incident struck the observation or remains upon the memory of one witness; another upon that of his neighbour [sic]. To eviscerate the truth from a body of testimony is perhaps the most arduous task of a modern lawyer; but it seldom admits of previous preparation, and never of writing. Upon civil causes, although depositions of absent witnesses are admitted, the course of trial is commonly of the same kind, and alike extemporaneous. Arguments to the court are more susceptible of previous writing. As they are exclusively confined to the establishment or some doubtful point of law, they consist of a continual chain of deductions, resembling mathematical, rather than oratorical demonstration. But sometimes the opinion of the court is settled before the argument commences. The advocate often asserts positions, which the judge, deeming erroneous, immediately controls or denies. Every interruption of this kind would disconcert a written speech. So that of all public speaking judicial oratory is that, which most requires previous meditation, and least admits of previous writing.
Yet although the eloquence of the bar so materially differs from that, of which Cicero and Quinctilian were masters, in one respect it still retains the same character. The bar is beyond all question the scene of the greatest difficulty to the public speaker, and that, where the rarest combination of talents is indispensable for the attainment of eminence. The demonstrative orator stands alone. He has no antagonist before him. He has had his own time for every species of preparation. He runs for an undisputed prize, and bears away the palm, if he can but succeed to amuse his hearer. The deliberative speaker must make his way against opposition, but he stands only as one among many. His sources of argument are more abundant and more general. Deliberation relates to future time. The decision turns upon a balance of contingencies. The question of expediency is decided by a majority of votes, but leaves it still undetermined whose foresight of futurity was most accurate. The out-numbered voters may still appeal to the issue of future events. But at the bar time past, right and wrong, existing law, are the materials in contest. Property, liberty, reputation, life, are the objects at stake. The fame and fortune of the speaker himself are bound up in the issue with the dearest interests of his client. He stands under the eye of a sharp-sighted adversary, eager to snatch at every error, and to turn every unwary concession to his own advantage; of learned and able judges, jealous of their own honor and reputation, quick to detect false reasoning, fastidious to trivial declamations, and ever cautious to shelter their understanding from being taken by surprize [sic]. He is ever liable to be misled by his own client, whose self-delusion and partialities often represent his cause more favorable, than it proves upon investigation; and he must be incessantly upon the watch against the arts of a zealous opponent. In the management of an important cause, an advocate seems placed in a state of warfare against all mankind. The antagonist is an open and inveterate foe. The judge must at least be redeemed from neutrality to join his side; and the client himself, by his anxieties, his fears, and his prejudices, hangs continual and irretrievable ruin over his cause. Success is attended with little honor. It passes but for the ordinary course of justice. Failure is accumulated mortification. It consists not alone in the sentence of the court. A triumphant adversary, and a client, as prone after the issue to impute his misfortune to his counsel, as he was to prepare it by his mismanagement, are the ordinary and unavoidable aggravations of defeat. This active and incessant collision however sharpens the faculties, while it tries the temper of the mind. It brings every talent at once to the test, and to the light. Men of other occupations may have feeble capacities without exposure, or great abilities without discovery. As a speaker at the bar, a man must open to public view all the strength and all the weakness of his mind. Dulness [sic] has no refuge from detection. Envy has no shroud for the kindling radiance of genius. The first and most distinguished station in the ranks of oratory must still be assigned to the eloquence of the bar.