INTRODUCTION.

A recent critic has classified the productions of lawyers among the raw materials of literature.1 Judicial opinions are excluded from the domain of literature because they are writings where the registration of a fact or the conveying of information is the sole object sought, and the sole end attained. Forensic arguments are granted a somewhat higher place. "Occasionally these arguments are so perfect, in their way, as to be almost entitled to be called artistic. Such arguments are among the highest achievements of the human mind; but they are not literature, because they are addressed to the intellect solely, and not to the imagination. In the oration, the feelings are appealed to, and the imagination is aroused. The oration is a literary form; the argument is not." Such a view, which is not uncommon, misconceives the nature and scope of the subject. Science alone appeals solely to the intellect. The fine arts, on the other hand, appeal to the emotions. Selecting typical forms of each class, it may be said that algebra is the antithesis of music. The former appeals directly to the intellect; the latter directly to the emotions. Between these two extremes there is infinite variation. Words may be used to express the things with which science deals, but they are rather symbols than language; the things exist in themselves, not by virtue of our understanding of them. In all the fine arts save music, the appeal to the emotions is made in part, at least, indirectly through the medium of intellectual conceptions. The appeal, in some form, to the feelings, is the ultimate characteristic of literature as a fine art. The typical form is poetry, in which the appeal to the feelings is the chief aim. In all other forms of literature (indeed, to some extent, in the highest poetry) this emotional element is combined with other qualities; for literature, having to do with thoughts, necessarily deals with definite intellectual conceptions. When these conceptions are supplied by the imagination, we have the domain of belles lettres; when they are supplied by facts, we have either the raw materials of literature, or a product which, whatever its avowed object, is literature in so far as it is animated

1 Chas. F. Johnson, Elements of Literary Criticism, 23, 24.

by the saving literary graces of emotion, imagination, thought, and form. It may be admitted that law ceases to be literature in the same degree that it is capable of severe scientific treatment. To what extent such treatment is possible it is unnecessary in this connection to inquire. A mere manual of legal principles would ordinarily fall outside the domain of literature; but then, so, also, would a chronicle of mere facts of any kind. Yet even a legal or historical treatise may be so colored by the author's mind as to attain certain literary qualities. The mere impulse to utter a fact or an idea implies some feeling about it, and the coloring derived from this feeling distinguishes the finished product from the raw material. Such, for instance, is Blackstone's Commentaries, and, in a higher degree, the work of Sir Henry Maine. Even in pure exposition, some happy turn of phrase or flash of imagination may illuminate a whole train of thought, and so not merely adorn, but illustrate. So, in the law reports, in the midst of much that possesses clearness and unity alone of literary qualities, we may occasionally find cases in which the discussion goes to the historical or scientific foundations of legal principles, where there is an ample display of imagination at work among the dry bones of legal formulae; or, in the application of legal principles to human actions, we may be moved by the largeness of the thought, or the imposing and imaginative way in which the real proportions of the problem are displayed. The opinions of Lord Bowen may be cited as examples.2

A large proportion of the advocate's work, like all customary oratory, is inseparably mixed with practice. The development of legal principles is by no means the sole occupation of the advocate. Often he has to apply settled rules to particular facts; more often to persuade a jury to reach certain conclusions from conflicting testimony. "Trial," as Erskine said in his defense of Lord Gordon, "is nothing more than the reference of facts to a certain rule of action." And the arguments of lawyers bear about the same relation to jurisprudence that pulpit oratory bears to theology, The very art of rhetoric, in its largest sense, as the art of discourse, was regarded by the ancients as the art of persuasion. In fact, the theory or science underlying the art had its origin in the judicial and deliberative orations of the Greek rhetoricians, which appealed to the mind and emotions with a view to influencing action. These masters of the art understood the metaphysics of persuasion.

2 See C. T. Winchester, Principles of Literary Criticism, for a scholarly discussion of the subject.

Their object was to influence the will, which controls all deliberate action. But they knew that the will seldom, if ever, initiates action; it acts in connection with the intellect and the feelings. The intellect is moved by arguments and explanations and facts which furnish material for reasoning. The feelings are stimulated by means of narration, description, and occasionally by exposition. Through one or both of these faculties the will must be reached. The orator finds or excites in his audience some desire. He has then to satisfy their intellect that a certain course of action will satisfy that desire. The appeal to the feelings is, therefore, an important, and at times a vital, element in persuasion; indeed, we call emotions which tend to influence the will, motives of action.3

Now it must be borne in mind that there are two spheres of advocacy. Judge and jury alike are sworn to do justice according to the law and the evidence. Theoretically, then, their motive is the same; but in practice it is seldom so, and this difference effects a real distinction between the two spheres of advocacy, and materially enlarges the scope of forensic oratory. The trained judge may be reasonably supposed to be so uniformly influenced by motives of truth and justice that it is only necessary to prove a case in order to receive a favorable decision. The address in such cases will be directed almost entirely to the intellect, and here we may expect to find the best specimens of pure argumentation. The training and cultivation of the audience enables the advocate to employ his highest powers of expression, and the persuasive element, being intellectual, rather than emotional, does not ordinarily lose its effect when viewed, apart from its delivery, as a composition. Benjamin R. Curtis is a typical illustration of this order of mind. In jury trials, on the other hand, where the motives upon which the desired action depends cannot be relied upon to be so uniformly present, or, at least, where they are easily overbalanced by other motives, the emotional element becomes of the first importance. The scope of this form of advocacy is practically unlimited. It deals with persons, things, and acts,—the facts in issue,—and with the law applicable to such facts. Of the various methods of expression, it is obvious that the principles of narration and description are as applicable to forensic as to other discourse. Exposition and argument are limited in part to legal logic, and to rules concerning the admission of evidence. In determining the facts of a case, the advocate depends upon reasoning common to all men. In determining the rule of law by which the issue is

3 See W. B. Cairns, Forms of Discourse, and Geo. P. Baker, Principles of Argument

ation.

to be governed, he depends, first, upon a knowledge of rules special to a small area, and, secondly, upon the application of these rules to the facts by universal methods of reasoning. In other words, the special knowledge necessary for the advocate depends upon and is surrounded by knowledge of the universal methods of reasoning.⭑

Although, therefore, not susceptible of being ranked with the more aesthetic forms of literature, which appeal directly to the emotions through the imagination, the advocate's work may still be literature; for it is not necessary that the quality which makes a work literature should be its primary object and purpose. The power to appeal to the emotions is always combined in literature with other qualities, and sometimes the purpose and worth of the work depend upon these other qualities. For instance, we do not value a history mainly for its vivacity, picturesqueness,and pathos, essential though they may be to literary quality. We value it primarily for its accuracy, justice of view, and truth; but the excellence of the work as historical literature will depend upon the skill of the author in combining historical and literary virtues. It is so in the work of the advocate. Although the intellectual element predominates, what we call force, energy, vigor, vivacity are only names for this incidental power to stir the emotions which characterizes literature; and its rank as literature will depend upon the power to combine clearness and accuracy with this emotional interest. Although this interest is supplied by facts, rather than by the imagination, these facts are human facts, which can never be adequately comprehended by the intellect alone; for human action always involves moral quality, and that can never be understood or rightly estimated save through the sympathies. The advocate must give his facts not merely as dry memoranda; he must portray living men and action. It is his task, not merely to arrange and chronicle facts, but rather, from scattered, fragmentary, and conflicting evidence, to show the real, living persons whose acts and motives are to be made clear to us. His imagination will seize and concentrate attention upon features that give the most vivid and characteristic impression. His efforts to give adequate expression to his insight will evoke at every step associated images and emotions. When his facts and arguments are thus warmed by his sympathies and vivified by his imagination, the result is literature. Not all arguments are literature, but, whenever they

W. C. Robinson, Forensic Oratory, 60.

are literature, they will be found to possess this appeal to the feelings. Such, for instance, was the advocacy of Daniel Webster.

There are certain limitations common to oratory in generallimitations arising out of the mental and emotional temperament of the audience, its attitude towards the speaker, and his subject and the end in view-which apply in varying degrees to different occasions. If oratory be regarded as the art of persuasion, its character must obviously be adapted to the audience and the occasion. In the every-day work of the advocate before ordinary juries, it would be absurd to expect a severe standard. He seeks to accomplish a desired result, with reference only to the requirements of the occasion. The forensic orator, as Scarlett said in this connection, "comes prepared to discuss a precise question upon which the issue is joined between the parties. His duty is to make such use of his facts, and of the topics which his own imagination may suggest, as will lead to the conviction of the jury in favor of his client. His sole object ought to be to persuade these twelve men to come to a specific conclusion. He must always be working upon the concrete, and pointing to his conclusion." If an advocate has skill and insight, the substance, form, and style of his address will yield to and vary with the circumstances of different cases and the minds of different jurors. He will half guide, half follow, the moods of the jurors towards the desired end. He may believe in his conclusions, but he will not always believe in the reasons which he assigns for them. He will catch at disputable premises because the jurors seem to adopt them, and draw inferences from them which suit a momentary purpose. Such arguments serve their purpose, and are forgotten.

The emotional character of popular oratory satisfies the sense of the untrained mind for the melodramatic, and constitutes, in a vague way, its apprehension of eloquence. It is curious to observe how the same mind, called to a deliberation or judicial occasion, in which action is sought to be influenced, at once becomes suspicious of methods which, on other occasions, were entirely satisfactory. The average person resents the thought of being readily susceptible to persuasive influences. He has an instinctive feeling that eloquence, as he understands it, is largely humbug. When he is persuaded, he usually feels that he has been listening to "plain common sense." Mr. Justice Wightman gives an amusing illustration of this in an anecdote of a Yorkshire assize, where Brougham and Scarlett were opposing counsel in most of the cases. Brougham was then at the height of his reputation as an orator. Scarlett had the reputation of being the greatest verdict winner of his generation. Wightman asked a juror what he thought of the two leading counsel. "Well," was the reply, "that Lawyer Brougham be a wonderful man; he can talk, he can. But I don't think nowt of Lawyer Scarlett." "Indeed." exclaimed Wightman, "you surprise me. Why you have been giving him all the verdicts." "Oh, there's nothing in that," replied the juror. "He be so lucky, you see; he be always on the right side."

When Erskine was asked, at the close of an argument, why he so iteratively, and with such singular illustration, prolonged one part of his case, he said: "It took me two hours to make that heavy-looking foreman join the eleven. No more than one idea could stay in his thick head at a time, and I resolved that mine should be that one; so I hammered on until I saw by his eyes that he had got it." Rufus Choate' once said: "I have been so often disappointed in the sudden turn which jurors' minds take,-I have proved them false on such trivial points,-that, as I grow older, I argue every point, even at the risk of tedium."