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LECTURE XII.

JUDICIAL ORATORY.

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.

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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 ariscs; 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 conjecture, of definition, of quantity, or of qual

ity, the American lawyer must ascertain whether he is to try 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 separa

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