ELoquence is that Art , by which the Orator at once convinces , and pleases his hearers ; and by which he gains same , and obedience . Monarchs govern our Estates , but the Orator governs our Wills , and Inclinations ; the Souldier may conquer our Lands , but the Orator our Reason ; and whilst these owe their empire to multitudes of men , and accidents , he do's alone share in the glory of his conquest . Amongst all such who stand Rivals for this great honour , the Advocat seems to have the fairest pretentions ; for a Courtiour may by Eloquence , charm a Lady , he may raily , and say nothing with a Bon grace : a Preacher may in his retirement , sorm a Discourse , which after much premeditation , meets with no opposition ; but the Advocat must upon Subjects infinitely various , make present replyes to what he did not expect . We come to Church convinc'd of every thing our Preacher is to say , we are the converts of his Theme , and not of his Discourse : but at the Barr , Justice do's oftimes side so equally , that a thousand times the hearers do confess themselves still convinc'd by the last speaker . What can the world bestow above what it allowes the Advocat , as the reward of his noble pains ? What is so desireable , as to be a Sanctuary to such as are afflicted , to pull the innocent from the clawes of his accuser , to gain bread for the hungry , and to bring the guilty to a scaffold ? What is so noble as to be depended upon by such as are in prosperity ( for Client and Depender , are the same in all Languages ) to be complemented by such as are beautifull , and admir'd by such as are learned ? And if he design to flatter his vanity , would it not charm him to see a crouded audience , stand in a profound silence , with countenances which do mark longing , and reverence , to see every man look with amazement upon his neighbour , and all upon the speaker ; whilst he makes his learned Judges , bow under the weight of his well exprest Arguments ; and when the Discourse is ended , to have all who see him salute him with respect as he passes by , and the City choose him for the subject of their kind discourses ?

Some Divines and Philosophers have oftimes prov'd so injust to the Law it self , as to think it too dull and flat a Science to affoord such subtile reflections , as could be the foundation of an accurat Debate : To whom I design modestly to return no other answer , then that men cannot judge well what they do not throughly understand . Thus common eyes discover no difference betwixt the starrs , though to judicious and learn'd persons , they appear in their distinct classes : I wish they would consider , how much the actions of men differ , how many circumstances attend every one of these , and how they are varied by these circumstances ; if 24 Letters can by their several conjunctions , make up such a swarm of words , certainly thousands of Statutes , Customs , and Cases , must affoord much room for new and subtile conclusions ; especially since these have been subtiliz'd and cultivat for many ages , by the finest Spirits of the world , who have been drawn to prefer this to all other employments , and to refine themselves to all imaginable hight in it , by the joynt hopes of glory , applause , preferment , money and emulation : — Stimulos dedit aemulavirtus .

I doubt not but there are many , who will think that Eloquence is not allowable at the Barr , since those who are to be convinced there , are old and reverend Judges , whose severe Judgments are not to be moved by a pleasing discourse , but by solid reason , old Age being little taken with those flourishes , which it cannot practise : and that though where passions are to be excited , as they are by the Pulpit , and Theater , or where States-men endeavour to reclaim a mutinous multitude , There , Eloquence is not only allowable , but necessary ( Eloquence being the true key of the passions ) yet , since no passions are allowed in judging , and the object of that excellent Science , being truth , and not humor , Eloquence should not be allowed in discourses there : And I imagine it will be objected to me , that at the first institution of our Senat , It was appointed by an Act of Sederunt , That all Argunning ( which term was us'd in that Age for arguing ) should be Silogisticé , and not Rhetoricé .

To which my answer is , that Eloquence do's not only consist in trops , figures , and such extrinsick ornaments , whereby our fancy is more gratified , then our judgement , and our discourse is rather painted then strengthned ; but when I mean that an Advocat should be eloquent , I design thereby , that he should know how to enliven his Discourse with expressions suitable to the Subject he treats ; that he should choose terms that are significant , and which seem full of the thing which they are to express , and so lodge his reasons handsomly ; though when his Subject looses him from the strict terms of a Statute , or Authority , and that he is to debate upon probable Theams , to enquire into publick utility , or to enforce or answer presumptive Arguments , he may use a more florid and elegant Stile : his great design is to conciliat favour to his Clients Cause ; and sure , caeteris paribus , even the learnedst and most severe Judges , love to be handsomly informed , and he must be very just , who is not somewhat bribed by charming expressions . But that the greatest part , of Judges are taken with that bait , is most undenyable ; and as in Mariages we find , that even those who desire rich Portions , are yet pleased to have a beautiful Mistris , and the severest man alive will be content to abate somewhat of the Portion to gratifie his fancy ; So , I am sure that a Papinian or Ulpian , would , when the scales seem to stand even , encline to that side upon which Eloquence stands . Eloquence raises the attention of a Judge , and makes him follow the speaker closely , so that nothing which he sayes in favour of his Client passeth unregarded ; whereas another may say what is very reasonable , and which if it were notic'd , might weigh much ; and yet the Judge who is not allured to hear attentively , may easily miss it .

I may likewayes add , that Eloquence thaws ( like the Sun ) the speaker himself , who when he is warm and pleas'd , will thereby have his invention stirr'd up , and his memory and all his faculties opened ; by which many excellent and apposite reasons may be suggested to him ; as we see the Earth ( when warm'd ) casts up many new and profitable fruits and herbs , as well as flowers ; whereas , we may dayly observe , that a stiff and cold pleader do's omit oftimes , even what he knowes . By the same Eloquence also , the hearers being warm'd and thaw'd have their Judgements thereby open'd , and doe receive more easily impressions of what is spoke ; and I conceive Eloquence the fitter for Advocats , that others think it should be banish'd as that which may bryb and corrupt Judges : and methinks it should be pardon'd some little dangerousness that way , since it pleases so much another ; nor can I think but that Providence has ordain'd it for the Barr , to soften , and sweeten humours , which would els by constant sticking at meer Law , become too rigid and severe ; and to divert and ease the Spirits both of Judges , and Advocats , which are too much upon the rack , and bended for the service of their Countrey .

As to our Act of Sederunt , which appointed , that all pleading should be sylogisticè , I need not reflect upon the ignorance of those times , which was very excuseable amongst us , since it did at that time blind even Italy and France , who do now smile with pity upon the customs and productions of their countrey-men in that Age : but I conceive , that our Session having been at first constitute of an equal number of Church-men and Laicks , and the President being an Ecclesiastick , these Church-men having the advantage of Learning and Authority , did form that Act of Sederunt according to their own breeding , by which they were tyed in their Theology-schools to debate by Syllogismes ; but after-ages having found this upon experience to be very unfit and pedantick , they did not only suffer that Act to run in desuetude , but allow'd of this auguster and more splendid manner of debating , which is now used . And therefore I conclude , that not only is that way not warranted by the Authority of that Act , but that it has the less preference because of that Act ; for , if that Act had not been made , we might have been induc'd to believe that such a way might take ; but now since experience has reform'd us from it , and since even the Authority of a Statute could not maintain it , we must think it was not fit nor suitable , as indeed it is not , if we consider these few remarks .

All Sciences have an expression which is suitable to them ; the Mathematicks require demonstration , and discover themselves to the eye : Medicine , and natural Philosophy require experiments ; Logick , Metaphysick ( and alas now Theology ) must wrestle by syllogismes ; but the Law argues by a discourse , free , and unconfined , like those who debate from its principles . It is the nature of a syllogisme to have the subsumption in the second proposition ; but in pleading , the matter of fact must come first , for it stands in the state of the case , and therefore though it be proper for Lybells ( which are but a Sylogisme ) yet it suits not with a Defence : and it were very ridiculous , and impossible , to wrap up a long story , many circumstances , presumptions and probabilities in a syllogisme ; and oftimes there are many defences propon'd and joyned together . The most ordinar and most allow'd way of arguing in Law is by similies , instances and parallels , and it is improper to drive those into syllogismes : but he will best confute this way of arguing by Syllogismes , who will sit down and plead any of the causes I have set down in a Syllogistick way , which if any man do , I shall renounce pleading , except he take syllogistick debating in a very large sense ; As for instance , in Kenedies case , the pursuer behov'd to say , He who is guilty of forging Writes , should be hang'd ; but so it is , Kennedy has done so ; ergo , The Defender behoved to deny the minor , and then the pursuer behov'd to say , he who is burden'd with such and such presumptions , is guilty of falshood ; but Kennedy is guilty of these ; and there he behov'd to insist upon all the indirect Articles or Presumptions : but how should the Defender answer all these by a distinguo ? or if this way were introduced , how little would this shorten Debates ? and are any creatures alive so litigious as some Divines , and Philosophers , who debate only by Syllogismes ? and so little do Syllogismes contribute to clear a Debate , that both in their Schools , and Books , such as use Syllogismes must leave that way , and enlarge themselves by discourses , when the debate growes warm , and intricat .

Every man in pleading , gratifies his own genious , and some of all kind find equall success , and applause ; but it has been oft debated , whether pointed and short pleading , wherein the Speaker singles out a point , and presses it , or full and opulent pleading , wherein the Speaker omitts nothing which may prove advantagious , be preferable : each side has its examples , and patrons .

The full and copious way pleases me ; for I not only find that to have been used by Demosthenes , and Cicero , but Plinius assures us , that it was used by Caesar and Pompey . At first no man was stinted amongst the Romans in his pleading , and when they were confined by Pompey , qui primus fraena imposuit Eloquentiae , the pursuer was allow'd two hours , and the defender three ; but this being found thereafter too narrow ; Celicius did allow the pursuer six houres , and the defender nine : Nor can a Pleader be interrupted in France ( where pleading is in its greatest perfection ) though he speak three full dayes ; and if it be a fault , it is peccatum felicis ingenij , the error of great Witts , whereas short pleading is common to such as pretend to be great Spirits , and to such as really are meer dunses . Such as use to say much can contract their discourses , but few who are used to say little , could say much , though they were willing ; and copious pleading is called ordinarily a fault , by such as have not the wit to commit that crime themselves . We see that in nature , the largest bodies are ordinarily strongest , the largest fruits most desired ; and many stroaks do best drive in the wedge . Nature has produc'd many things for meer ornaments ; and God has in his Scriptures , us'd Eloquence and Rhetorick on many occasions . But there are two Arguments which have determined me to this choice , the first is , that a short Pleader may leave things unclear , and so wrong his Client ; whereas a full Pleader can only burden too much his hearers , and so wrong only himself . A narrow , and starved discourse , is like those slender and small costed bodies , which allow not sufficient room for the noble parts to exercise their functions , Non enim amputata oratio , & abscissa , Sedlata , magnifica , excelsa , tonat , fulgurat et omnia evertit . The next is , that even where there is but one Judge , it is uncertain which of all the Arguments will convince him , but where there are many , as with us , it is very well known to such as discourse in privat with them , upon what has been pleaded , that some fix upon one argument , some upon another : the best Lawyers differ oft in opinion upon debatable points , and it is great vanity for any Pleader to think , that he can certainly know what will take , and what not ; this was really not an Appologie for my error , but the motive of my choice , and I find it to have been formerly used by Plinius the younger , ( the greatest Pleader of his Age , and whose Epistles do of all other books best inform us how to plead ) this great man in his 20 Epistle tells us , that Regulus said to him , Tu omnia quae in causa putas exequenda , ego jugulum statim video , hunc premo , respondi , posse fieri , ut genu esset , aut tibia , ubi ille jugulum putaret , at ego qui jugulum perspicere non possum omnia pertento . But I will not with him adde , Neque enim minus imperspicua , interta fallaciaque sunt judicum ingenia ; Quam tempestatum , terrarumque adjiciam quod me docuit usus , Magister Egregius , aliud alios movet , varia sunt hominum Judicia , variae voluntates , inde qui eandem causam simul audierunt , interdum idem , saepe diversum , sed ex diversis animi motibus sentiunt , Our Colledge of Justice is but one body , in which the Senators are the judicative faculty , and the Advocats the inventive ; and as the judgement is too rash , when it concludes before the invention has represented to it all that can be said pro , and con , even so Judges should not decide till the Advocat ( who is animated by gain , applause , and custom to find out , all can be said ) do first lay open all the reasons , and inconveniences which he has in his retirements prepar'd : from which also I conclude , that seing the Advocats are in place of the invention , that those Advocats who have the fertilest nvention , are most fitted for that excellent employment .

When I prefer copious pleading , I design not to commend such as are full , but of Tautologies , and Repetitions , who moe Periods , then Arguments , and who , providing they find many words , care not much how to choose them . I love a discourse which is beautiful , but not painted ; rich but not luxurious ; harmonious but not canting . I am not for many Replyes , Duplyes , and Triplyes , but for one , or two strong , full and clear discourses , and to lengthen those , by streaching out those unnecessar plyes into one just measure . Nor do I love long pleading in the Utter-house , where new decisions are not to be made , but where the old should be follow'd ; and where the multitude of attenders do require a speedy dispatch , and in the Inner-house it is only to be practised where the cause is new , and fertile , and when the Judges desire a full information ; for it is most unfit to vex an unwilling Judge , who will think all that he loves not to hear , meer effectation , and vanity : but envy must not want its objections , and where it finds not a fault , it makes one out of the next vertue ; when a man pleads fully , it terms that luxuriency , and when he pleads shortly , it will have that pass for ignorance , or lazinesse : and so inconsistent are backbite●s not only with the truth , but in what themselves invent , that I have heard one and the same Pleader , blam'd for a too luxurient Pleader by some , and for a lazie Pleader by others , because in the Inner-house he used the full allowance , and in the Utter-house he thought it impertinent to make speeches , where a short Defence is only necessary ; for either the point there is clear , as ordinarily it is , and then it is absurd to enforce a principle ; or it is dubious , and then he gets the Lords answer , and may be full in his information ; and why should pains be taken to vex a Lord with debate who is not to decide ?

Far be it from me to prescribe magisterially , a form of pleading to others , but I love to tell freely my own opinion , and if others did so too , we should shortly , from comparing Notes , come to know what method were most allowable .

In pleading amongst the Ancients , and yet amongst the French , there was still a Preface , and Epilogue . Amongst them , he who spoke first , endeavoured to establish his own opinion , and to anticipat what he thought might be urg'd by his Adversars ; but with us the Pursuer relates only the cause , which he is only allow'd to adorn with a pertinent representation of such circumstances , as may best , either astruct the justice of his own pursute , or obviat unnecessary objections in his Opponent , but without mentioning any thing pro , or con , in jure . Andyet I have heard the case so prudently stated , as that thereby the Defender was precluded from many Defences he design'd to propone ; for amongst able Pleaders , most of what is debated , arises from a difference rather in fact , then Law ; and it is a great affront for one to plead , in Law , a long discourse , which the other will grant to be all true , when the discourse is ended : And yet I have heard some concede all was said , and seem to difference the present case from the case pleaded , when indeed there was none , but when this was done meerly to evite a discourse which could not be answered . After the pursuer has stated his pursute , and enlarg'd himself upon all the favourable circumstances which we call the merits of the cause , the defender propones his defence , but urges it little , till he know if it be contraverted ; but if the relevancy of the Defence be contraverted by the Replyer , in a full discourse , then the Duplyer makes a sull answer , and ordinarily these terminat the debate , and after that the discourses become too thin and subtile , and the Judges weary , albeit some causes because of their intricacy , or of new emergents , require moe returns .

In these Replyes , or Duplyes , our custom allowes a short Preface upon solemn occasions , in which the rule seems to be , that these Prefaces should not be too general and such as are applicable to any Debate ; as when the speaker excuses his own weaknesse or recommends justice to the Judges , or such common places ; but it should run upon some general principle , which though it be not a concluding Argument , yet tends much to clear that which is the subject of the Debate : as in the French pleading I have translated , the Pleader being to inforce that a civil death purifies the condition , Si sine liberis decesserit , he begins with a Preface , which shewes , that the Law has a great empire over nature , and plyes its events to its civil designes ; whereas I being to plead the contrair , I do insist to clear in generall , that matters of fact , escape the regulation of Law , and that Law is ty'd to observe nature .

The Discourse it self do's consist of these Arguments , whereby the Defender maintains his Defence , or of these Answers by which the pursuer elids those Arguments ; and to range them appositly into their own places ( so that such Arguments as have contingency , may be set together ) is a mark of a clear , and distinct wit : and when Arguments are so rang'd , each of them adds strength to another , and they look like men well marshal'd into distinct troops ; whereas Arguments stragling out of that place where they ought to have been placed , seem unpleasant , and irregular , and will hardly be expected where they are ; for instance , in pleading against the Viscount of Stormont , all the Arguments which can be press'd , are either such as endeavour to prove , that the clause of Stormonts Infeftment is contrary to the nature of Dominium or Commerce , and after that the Pleader had past first Dominium , and then Commerce , to return to those Arguments , which arise from the nature of Dominium , were irregular ; for that were to return to show what he had forgot . And from this I conclude in reason , that all Arguments founded upon that same general principle , should be pleaded together , and in the ordering of these generalls , I would choose to begin with those which clear best either matter of fact , or which tend most to illuminat the subject of the discourse ; and thus the controversie in Stormonts case , being , whether the Proprietor of tailzied Lands , may alienat these Lands if he be prohibit to alienat by the first Disponer , or at least if they may be comprys'd from him ; the first classe of Arguments to be urg'd , should be these which tend to prove , that this Prohibition is inconsistent with the nature of Dominium , and Propriety , for these clear best the nature of Propriety which is the chief subject of the debate .

He who answers , uses with us , to repeat the Arguments which he is to answer all with one breath ; before he begin to make distinct answers to them ; and this proceeds as I conceive , from the Aristotelick way of arguing in the Schools , wherein he who maintains the Thesis proposed , must repeat the Argument , before he answer it : this method I love not , for it consumes unnecessarily much time , and sure it wearies Judges to hear the same Argument twice , yea thrice , repeated ; for first , the enforcer do's repeat them , then the answerer do's repeat them , both generally at the entry of his discourse ; and therafter he must repeat each Argument when he is to make a special answer ; and I should think it much more natural to repeat and answer each Argument a part , ordinarily the answerer follows in his answers the method of the proponer ; yet sometimes he chooses rather to classe the arguments as he pleases , and to answer accordingly . If the Defender design to answer the Arguments brought against his Defence , and to adde new ones to astruct the reasonableness of his pursuit , he uses first to urge his own Arguments , and then to answer what is alleadg'd for the Defender .

Whether the strongest , or weakest Arguments or Answers should be first insisted on , was much debated amongst ancient Orators ; some thought the weakest should be first urg'd , because the Judges were then freshest , and might possibly by weariness slight what was delay'd : others thought fit to leave with the Judges the strongest Arguments , that they might be fresh with them when they were to decide : this I think is arbitrary , and they are but weak Judges , who do not weigh all equally ; but I think it adviseable for a young Pleader , to urge the strongest Arguments first , that he may thereby conciliat favour to himself , and raise the attention of his Judges , and in all cases where the cause seems unfavourable the strongest Arguments are first to be used , for the same reason , and there seems little reason to leave the strongest Arguments last , if the Cause be not presently to be decided : but where many Answers are to be made to one Argument , the weakest is ordinarily first made and as it were overlye , but the strongest is reserved last , because it is most to be insisted upon : and I think it most natural to urge the weakest Arguments first , because our discourse should like our selves , and like our studies , grow from strength , to strength , and from less to more , but sometimes one Argument grows from another , and then there is no place to doubt , and alwayes the most mysterious Argument is to be left last , because it is to be presumed , that then the cause is best understood , and mysterious Arguments come to be most in season , when Judges have fully master'd the case .

The Epilogue with us is ordinarily , In respect whereof the Defence ought to be admitted , or repell'd , &c. But in some solemn cases , the Pleader may recapitulat shortly his strongest Arguments , or may urge the favour and merits of the Cause ; and I should love to press this merit rather here then in the preface ; for favour is but an accessory of Justice , and the consequent should not preceed its cause .

Action , was of old one of the chief ornaments of Speech , under which was comprehended , gesture , and voice , all which were accomodated to the Orators design , when they spoke to multitudes of ignorant people , to whom , tears or ejaculations pleaded more , then reason did ; for that they understood better , as more obvious to that sense by which they were govern'd : but now the world is become too wise to be taken by the eyes , albeit I confesse these adde grace , though not force .