LECTURE XXVIII.

ELOQUENCE OF THE BAR-ANALYSIS OF CICERO'S ORATION FOR CLUENTIUS.

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I TREATED, in the last Lecture, of what is liar to the eloquence of popular assemblies. Much of what was said on that head is applicable to the eloquence of the Bar, the next great scene of public speaking to which I now proceed, and my observations upon which will therefore be the shorter. All, however, that was said in the former Lecture must not be applied to it; and it is of importance, that I begin with showing where the distinction lies.

IN the first place, the ends of speaking at the Bar, and in popular assemblies, are commonly different. In popular assemblies, the great object is persuasion; the orator aims at determining the hearers to some choice or conduct, as good, fit, or useful. For For accomplishing this end, it is incumbent on him to apply himself to all the principles of action in our nature; to the passions and

to the heart, as well as to the understanding. But, at the Bar, conviction is the great object. There, it is not the speaker's business to persuade the judges to what is good or useful, but to shew them what is just and true; and, of course, it is chiefly, or solely, to the understanding that his eloquence is addressed. This is a characteristical difference which ought ever to kept in view.

IN the next place, speakers at the Bar address themselves to one, or to a few judges, and these, too, persons generally of age, gravity, and authority of character. There they have not those advantages which a mixed and numerous assembly affords for employing all the arts of speech, even supposing their subject to admit them. Passion does not rise so easily; the speaker is heard more coolly; he is watched over more severely; and would expose himself to ridicule, by attempting that high vehement tone, which is only proper in speaking to a multitude.

IN the last place, the nature and management of the subjects which belong to the Bar, require a very different species of oratory from that of popular assemblies. In the latter, the speaker has a much wider range. He is seldom confined to any precise rule; he can fetch his topics from a great variety of quarters; and employ every illustration which his fancy or imagination suggests. But, at the Bar, the field of speaking is

limited to precise law and statute. Imagination is not allowed to take its scope. The advocate has always lying before him the line, the square, and the compass. These, it is his principal business to be continually applying to the subjects under debate.

FOR these reasons, it is clear, that the eloquence of the Bar is of a much more limited, more sober and chastened kind, than that of popular assemblies; and, for similar reasons, we must beware of considering even the judicial orations of Cicero or Demosthenes as exact models of the manner of speaking, which is adapted to the present state of the Bar. It is necessary to warn young lawyers of this; because, though these were pleadings spoken in civil or criminal causes, yet, in fact, the nature of the Bar anciently, both in Greece and Rome, allowed a much nearer approach to popular eloquence, than what it now does. This was owing chiefly to two causes.

FIRST, Because in the ancient judicial orations, strict law was much less an object of attention than it is become among us. In the days of Demosthenes and Cicero, the municipal statutes were few, simple, and general; and the decision of causes was trusted, in a great measure, to the equity and common sense of the judges. Eloquence, much more than jurisprudence, was the study of those who were to plead causes. Cicero

somewhere says, that three months study was sufficient to make any man a complete Civilian; nay, it was thought that one might be a good pleader at the Bar, who had never studied law at all. For there were among the Romans a set of men called Pragmatici, whose office it was to give the orator all the law knowledge which the cause he was to plead required, and which he put into that popular form, and dressed up with those colours of eloquence, that were best fitted for influencing the judges before whom he spoke.

WE may observe next, that the civil and criminal judges, both in Greece and Rome, were commonly much more numerous than they are with us, and formed a sort of popular assembly. The renowned tribunal of the Areopagus at Athens consisted of fifty judges at the least *. Some make it to consist of a great many more. When Socrates was condemned, by what court it is uncertain, we are informed that no fewer than 280 voted against him. In Rome, the Prætor, who was the proper judge both in civil and criminal causes, named for every cause of moment, the Judices Selecti, as they were called, who were always numerous, and had the office and power of both judge and jury. In the famous cause of Milo, Cicero spoke to fifty-one Judices Selecti, and so

* Vide Potter, Antiq. vol. i. p. 102.

had the advantage of addressing his whole pleading, not to one or a few learned judges of the point of law, as is the case with us, but to an assembly of Roman citizens. Hence all those arts of popular eloquence, which we find the Roman orator so frequently employing, and probably with much success. Hence tears and commiseration are so often made use of as the instrumenst of gaining a cause. Hence certain practices, which would be reckoned theatrical among us, were common at the Roman Bar; such as introducing not only the accused person dressed in deep mourning, but presenting to the judges his family, and his young children, endeavouring to move them by their cries and tears.

FOR these reasons, on account of the wide difference between the ancient and modern state of the Bar, to which we may add also the difference in the turn of ancient and modern eloquence, which I formerly took notice of, too strict an imitation of Cicero's manner of pleading would now be extremely injudicious. To great advantage he may still be studied by every speaker at the Bar. In the address with which he opens his subject, and the insinuation he employs for gaining the favour of the judges; in the distinct arrangement of his facts; in the gracefulness of his narration; in the conduct and exposition of his arguments, he may and he ought to be imitated. A higher pattern cannot be set before us; but one who