THE eloquence of advocates of the past must largely be taken on trust. There is no evidence of it that is not hearsay. For, though we have the accounts of ear-witnesses of the eloquence of Erskine, Scarlett, Choate, or Lincoln, and can ourselves read their speeches, the effect of their eloquence does not remain. We are told about it by those who experienced it, and can believe or not as we choose. It is the same with actors. It requires genius to describe acting, so that the reader captures some of the experience of the witness. Fielding did it for Garrick when he took Partridge to see Hamlet; Charles Lamb can feature the old actors for us on the screen of the written page; but how few real records remain of the eloquence of the advocates of old!
Perhaps the best way to realise their powers is to read their speeches aloud; but even then they seem diffuse and out of proportion to the present interest in the litigation. The most eloquent advocacy that is reported in print is to be found not in law reports, but in fiction—in the speeches of Portia and Serjeant Buzfuz, for instance, where for all time the world continues hanging on the lips of the advocate in excited sympathy with the client.
There are some who think that rhetoric at the Bar has fallen in esteem. The modern world has certainly lost its taste for sweet and honeyed sentences, and sets a truer value on fine phrases and the fopperies of the tongue; but there will always be a high place in the profession for the man who speaks good English with smooth elocution, and whose speeches fall within Pope’s description:
Fit words attended on his weighty sense,
And mild persuasion flow’d in eloquence.
The test of eloquence in advocacy is necessarily its effect upon those to whom it is addressed. The aim of eloquence is persuasion. The one absolute essential is sincerity, or, perhaps one should say, the appearance of sincerity. As Garrick reminded a clerical friend: “We actors portray fiction as if it were truth, and you clergymen preach truth as if it were fiction.” It is no use preaching to a jury, but the eloquence of persuasion will work miracles; and there is a well-authenticated story on every circuit of the criminal who, listening with rapt attention to his counsel’s pathetic details of his wrongs, burst into sobs after his peroration, crying out, “I never knew I was such an ill-used man until now—s’help me, I never did!”
It would appear from the history of advocacy that the flame of the lamp of eloquence may vary from time to time in heat and colour. One cannot say that the style of one advocate is correct and another incorrect, since the style is the attribute of the man and the generation he is trying to persuade. Yet, however different the style may be, the essential power of persuasion must be present. He must, as Hamlet says, be able to play upon his jury, knowing the stops, and sounding them from the lowest note to the top of the compass.
Brougham’s tribute to Erskine’s eloquence is perhaps the best pen-picture of an English advocate we possess, and it is noticeable how he emphasises this power of persuasion and endeavours to solve the psychology of it. He places in the foreground the physical appearance of the man, a great factor in each style of advocacy.
“Nor let it be deemed trivial,” he says, “or beneath the historian’s province, to mark that noble figure, every look of whose countenance is expressive, every motion of whose form graceful, an eye that sparkles and pierces, and almost assures victory, while it ‘speaks audience ere the tongue.’ Juries have declared that they felt it impossible to remove their looks from him when he had riveted and, as it were, fascinated them by his first glance; and it used to be a common remark among men who observed his motions that they resembled those of a blood-horse, as light, as limber, as much betokening strength and speed, as free from all gross superfluity or encumbrance. Then hear his voice of surpassing sweetness, clear, flexible, strong, exquisitely fitted to strains of serious earnestness, deficient in compass indeed, and much less fitted to express indignation, or even scorn, than pathos, but wholly free from harshness or monotony. All these, however, and even his chaste, dignified, and appropriate action, were very small parts of this wonderful advocate’s excellence. He had a thorough knowledge of men, of their passions, and their feelings—he knew every avenue to the heart, and could at will make all its chords vibrate to his touch. His fancy, though never playful in public, where he had his whole faculties under the most severe control, was lively and brilliant; when he gave it vent and scope it was eminently sportive, but while representing his client it was wholly subservient to that in which his whole soul was wrapped up, and to which each faculty of body and of mind was subdued—the success of the cause.”
And if one reads the speeches of our greatest advocates and the records of those who heard them, one finds that each had some peculiar condiment of eloquence, so that if one could beg a flavour from each one might hope to produce an olio of super-eloquence.
Bethell, for instance, was a master of deliberation, remembering Bacon’s maxim that “a slow speech confirmeth the memory, addeth a conceit of wisdom to the hearers.” Shorthand-writers listened eagerly to his speeches, fearing to miss a sentence that would ruin their report. Repetitions and unnecessary phrases were banned, and useless words he looked upon as matter in the wrong place. His voice was clear and musical, and he had a telling wit. Students from the first thronged the court to learn his magic, and judges listened to him with respect. When he was a junior it is said that Sir John Leach, the Master of the Rolls, succumbing to his arguments, said, “Mr. Beethell, you understand the matter as you understand everything else.” And that was the real secret of Mr. Bethell’s eloquence.
Serjeant Copley, better known as Lord Lyndhurst, was not a brilliant or showy advocate, but, as a friend said, “had no rubbish in his head.” He won many of his triumphs by dexterous and successful sophistry and his extreme plausibility of manner. Mr. James Grant tells us that “a perpetual smile played on his countenance while he gazed at the faces of the court and the jury; and there was something so winning in the tones of his voice that he must have been a man possessing a remarkably lively perception of the real facts of a case, of a vigorous intellect, and of great energy of character who was not carried away by Mr. Copley’s address.” The mere wording of the description might suggest to an unsympathetic reader that Serjeant Copley was the Fascination Fledgeby of the Bar, but the intention of the writer was probably to portray something of that charm of manner which is often a form of eloquence leading to the highest success in advocacy. Gully, in our own day, possessed it in a high degree. It is easy to fall under the spell of it in court, but it would require the pen of a genius to recall it to life on the printed page.
Eloquence of manner is real eloquence, and is a gift not to be despised. There is a physical as well as a psychological side to advocacy, documentary evidence of which may be found in the old prints and portraits of those who have been called to high office from among us. They are, on the whole, a stout, well-favoured race.
Charm of voice and manner has always received due reward. Thomas Denman had a fine, musical voice, an easy manner, and the sincerity and fervour of his address made him a popular advocate. Scarlett was “the very incarnation of contentedness and good nature.” A spectator notes his “perpetual cheerfulness,” his “laughing and seductive eyes,” his “How-do-you-do style” as he used to stand before the jury, “fold up the sides of his gown on his hands, and then, placing his arms on his breast, smile in their faces from the beginning to the end of his address, talking all the while to them as if he were engaged on a mere matter of friendly conversation.”
Many an advocate has attempted a similar method with but small success, and there must have been, as Mr. Atlay says, “an exquisite dexterity” in his method of address that does not reach us through contemporary descriptions. The effect of it was undoubted. A North-Country juryman was once asked, after a long assize at Lancaster, “What do you think of the counsellors on the Northern Circuit?”
“Why,” he replied, “there’s not a man in England can touch that Mr. Brougham.”
“But you gave all the verdicts to Mr. Scarlett?”
“Why, of course; he gets all the easy cases.”
It is eloquence that persuades the jury that your case is the easy case. As Cobbett said—and Cobbett had a common jury mind—“He is an orator that can make me think as he thinks, and feel as he feels.”
Mr. Montagu Williams has pointed out that the best English eloquence of his time was founded on what he calls a solid style of advocacy. “As leading examples,” he writes, “of what I may call the solid style, I should name Serjeant Shee, Serjeant Parry, and Lord Justice Holker. When I say ‘solid,’ I do not refer to heaviness of manner, but to solidity of appearance, robustness of speech, and a general air of good English honesty. This style is very taking with the juries of this country. It was the heavy, nay, almost languid, way in which Lord Justice Holker opened his cases, taken in conjunction with his sudden awakenings and bursts of eloquence when important points were reached, that rendered his style of advocacy so telling.”
Nearly every great advocate has found it necessary to make use of the eloquence of persuasion. Charles Russell is the one exception. He did not seek to persuade, he directed the court and jury. Whether or not he was, as Lord Coleridge said, “the biggest advocate of the century,” he was undoubtedly a very great advocate. Clearness, force, and earnestness were the basic qualities of his eloquence. It was said of him that “ordinarily the judge dominates the jury, the counsel, the public,—he is the central figure of the piece. But when Russell is there the judge isn’t in it. Russell dominates every one.”
But no man can dominate a jury in a doubtful case, and though Russell was supreme in a good case, he had not that power possessed in a high degree by another great advocate—still, happily, among us—Sir Edward Clarke, who could not only insinuate doubts into the hearts of the jury, but could leave his arguments so clearly in men’s minds that he became, as it were, the thirteenth man on the jury when they retired to consider their verdict. This requires real eloquence.
The moral of the lives of the advocates seems to be that in the house of eloquence there are many mansions, and any style natural to the man who uses it is his right style, and may succeed. One besetting sin of many would-be eloquent speakers is fatal, and that is bombast. The young advocate who opened a libel case, “My client, gentlemen, is a cheesemonger; and the reputation of a cheesemonger is like the bloom upon a peach. Touch it, and it is gone for ever,” must have been immune from eloquence. Yet there are solicitors and clients who still like that kind of thing, and advocates who supply it.
Nearer to eloquence was the advocate who, in defence of a woman for child murder, said in passionate tones: “Gentlemen, it is impossible that the prisoner can have committed this crime. A mother guilty of such conduct to her own child! Why, it is repugnant to our better feelings! Gentlemen, the beasts of the field, the birds of the air, suckle their young——”
The simile might perhaps have passed with the jury had not a dry, unsympathetic voice from the bench interrupted with: “Mr. X, if you establish the latter part of your proposition, your client will be acquitted to a certainty.”
And though eloquence at its highest is a gift, the art of speaking can be learned and personal difficulties overcome. Demosthenes, with his pebbles in his mouth or running up a hill spouting an oration, has been an example to us from the schoolroom. Cicero took lessons from Roscius and Æsop. Lord Guildford, Lord Campbell, Lord Brougham, and others have impressed on students the importance of attending and practising at moots and debating societies. The mechanics of eloquence can be as certainly learned by the student as the mechanics of etching or engraving, but how far these will make an artist of him and help to bring real eloquence to the learner lies in himself.
There is no golden rule of method, but there is this golden principle to remember that the message of eloquence is addressed to the heart rather than the brain. This is well put by Lord Chesterfield, who was more human than many will allow, when he wrote to his son: “Gain the heart, or you gain nothing; the eyes and the ears are the only road to the heart. Merit and knowledge will not gain hearts, though they will secure them when gained. Pray have that truth ever in your mind. Engage the eyes by your address, air, and motions; soothe the ears by the elegancy and harmony of your diction; the heart will certainly follow; and the whole man and woman will as certainly follow the heart.”
Thus is the grammar of the matter set down by a skilled grammarian, yet it is but a bundle of dry sticks and kindles no flame. The high privilege of lighting the torch at the lamp of eloquence is a gift of the gods, for orators are born, and not made.