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Entered according to act of Congress, in the year eighteen hundred and seventy,
BY WEED, PARSONS & Co.,
in the Clerk's office of the District Court of the United States for the Northern
District of New York.
The Albany Law Journal.
mained mute and inglorious. Never would Demosmr All communications intended for publication in
thenes have charmed an Athenian audience, nor the LAW JOURNAL should be addressed “ Editor Law
Cicero have hurled his denunciations against Cataline, Journal, Albany, N. Y.;" and the name of the writer
Lord Chatham would have remained simple William should be given, though not necessarily for publication.
Pitt, and Erskine lived an ordinary English barrister;
Curran would have been “Orator Mum” to the end of Communications on business subjects should be
his days, and Choate died “unwept, unhonored, and addressed “WEET, PARSONS & Co., Albany, N. Y.”
Men who believe that eloquence is the result of genius, and not of labor, are like the dwellers in the East, as described by Sir Joshua Reynolds in his
address to the pupils of the Royal Academy. He ALBANY, JANUARY 8, 1870.
says: “ The travelers into the East tell us, that when the
ignorant inhabitants of those countries are asked conON THE STUDY OF FORENSIC ELOQUENCE. cerning the ruins of stately edifices yet remaining There is another essential, aside from a knowledge
amongst them the melancholy monuments of their of the law, for the successful court lawyer — that is
former grandeur and long-lost science, they always eloquence; that sort of eloquence which Blair defines
answer: "They were built by magicians.' The un
taught mind finds a vast gulf between its own powers to be “the art of speaking in such a manner as to attain the end for which we speak.” Most young men,
and those works of complicated art, which it is utterly who study with a view of coming to the bar, have an
unable to fathom; and it supposes that such a void ambition, more or less strong, to become advocates —
can be passed only by supernatural powers.” What to be able to convince judges and persuade juries by
Sir Joshua says of painting is true of oratory. Those the power of their logic and the graces of their style
who know not the cause of any thing extraordinary and utterance; but a visit to our courts is but too
and beyond them may well be astonished at the effect : likely to show how lamentable the great majority of
and what the uncivilized ascribe to magic, others them fail of achieving their desire.
ascribe to genius,- two mighty pretenders who, for Lack of perseverance in performing the labor neces
the most part, are safe from rivalry only because by sary to the student of elocution, or ignorance of the
the terror of their names they discourage in their method to be pursued, or, in many cases, a notion
own peculiar sphere that resolute and sanguine spirit that orators, like poets, “are born, not made,” has
of enterprise which is essential to success. But as has served to make the number of eloquent advocates very
been well said, “all magic is science in disguise," and small indeed.
it is our object in this article to proceed to take off the The almost universal idea seems to prevail, that
mask — to show that the mightiest objects of our wonIndustry can effect nothing; that every one must be
der, so far as eloquence is concerned, are mere men content to remain just what he happens to be, and that
like ourselves, have attained their superiority by steps
which we can follow, and that we can walk in the eminence is the result of accident. For the acquirement of any other art, men expect to serve long ap
same path even though there remain at last a broad prenticeships; to study it carefully and laboriously;
space between us. to master it thoroughly. If one would learn to sing,
Lord Chesterfield was not very far wrong when,
in his letters to his son, he told him that any man of he attends a master and is drilled in the elementary principles; and it is only after the most careful dis
reasonable abilities might make himself an orator;
not an orator like Cicero's magnificent myth, who cipline that he dares to exercise his voice in publio. If he would learn to play a musical instrument, how
should have “the acuteness of the logician, the wispatiently and persistently does he study and practice,
dom of the philosophers, the language almost of poetry,
the memory of lawyers, the voice of tragedians, the that he may draw out, at will, all its various combinations of harmonious sounds, and its full richness and
gesture of the best actors;"’such orators, we admit,
must be nascitur, non ft - born, not made- and they delicacy of expression. And yet a man will fancy that the grandest, the most complex, the most expressive
are rarely to be found; but orators like Pitt and
Fox, like Mansfield and Erskine, like Pinkney and of all instruments, which is fashioned by the union
Choate - orators who can “sway listening senates," of intellect with power of speech, may be played upon
who are stormy masters of the jury-box. without study or practice. He comes to it a mere tyro,
Chesterfield was perhaps an illustration of his own and thinks to manage all its stops, and command the
theory for he said that he at one time determined to whole compass of its varied and comprehensive power;
make himself the best speaker in Parliament and set he finds himself a mere bungler in the attempt, wonders at his failure, and settles it in his mind for
about a severe course of training for it; and we have
the opinion of so able a judge as Horace Walpole that ever that the attempt is vain — that it can be dono only
he was the first speaker of the House. Every schoolby genius.
boy can tell you of the gigantic labors of DemosNothing can be more mischievous and unfortunate
thenes in training himself for a public speaker. It to the student than for him to fall into such an error
will be refreshing for any student who desires to to hold the opinion that excellence in speaking is a
improve himself in speaking to turn to Plutarch's gift of nature and not the result of patient and per
life of Demosthenes, and read of his early struggles sistent labor and study. If all men had entertained
with obstacles which would have discouraged at the and acted upon such an opinion, those who have won fame and honor by their eloquence would have re- |
* Cicero's De Oratore, Book I, c. 28.
threshold the great majority of mankind. Laughed as forming so large a part of his early discipline. He at and interrupted by the clamor of the people in his took up the practice of writing out translations from first efforts, by reason of his violent and awkward the ancient orators and historians, on the broadest inanner, and a weakness and stammering in his voice, scale. Demosthenes was his model; and we are told he retired to his house with covered head and in great that he rendered a large part of his orations again and distress, yet not disheartened. At one time he com- again into English, as the best means of acquiring a plained to Satyrus, the player, “that though he was forcible and expressive style, ... As a means of the most laborious of all the orators, and had almost acquiring copiousness of diction and an exact choice sacrificed his health to that application, yet he could of words, Mr. Pitt also read and re-read the serinons gain no favor with the people.” Satyrus seems to of Dr. Barrow till he knew many of them by heart, have been a judicious adviser, and proceeded to cor- With the same view he performed a task, to which, rect his faults as Hume says, he who teaches eloquence perhaps, no other student in oratory has ever submitmust-by example. He requested Demosthenes to read ted. He went twice through the folio dictionary of some speech from Euripides or Sophocles. When he | Bailey, examining each word attentively, dwelling on had done, Satyrus pronounced the same speech with its peculiar import and modes of construction, and so much propriety of action that it appeared to the thus endeavoring to bring the whole range of our lanorator quite a different passage. “He now understood guage completely under his control. At this time, so well,” says Plutarch, “how much grace and dig. | also, he began those exercises in elocution by which nity action adds to the best oration, that he thought he is known to have obtained his extraordinary powit a small matter to premeditate and compose, ers of delivery. Though gifted by nature with a comthough with the utmost care, if the pronunciation manding voice and person, he spared no effort to add and propriety of gesture were not attended to everything that art could confer for his improvement Upon this he built himself a subterranean study, as an orator." His success was commensurate with whither he repaired every day to form his action and his zeal. Garrick himself was not a greater actor, in exercise his voice; and he would often stay there two that higher sense of the term in which Demosthenes or three months together, shaving one side of his head, declared action to be the first, and second, and third that if he should happen to be ever so desirous of go- thing in oratory. The labor which he bestowed on ing abroad, the shame of appearing in that condition these exercises was surprisingly great. Probably no might keep him in.” The contemporaries of Demos- | man of genius since the days of Cicero has ever subthenes esteemed him as a man of but little genius, and mitted to an equal amount of drudgery. concluded that all his eloquence was the result of Lord Mansfield, equally famous as an advocate labor. Certain it is that he was seldom heard to speak and judge, affords us another example of unwearying, extempore; and though often called upon in the assem-patient discipline. He studied oratory with the greatbly to speak, he would not do it unless he came pre est fervor and diligence. He read everything that had pared. It is undoubtedly true that nature had sowed been written on the subject of the art; he made himin Demosthenes the seeds of a great orator; but they self familiar with all the great masters of eloquence were brought to perfection only by the most patient in Greece and Rome, and spent much of his time in labor and severe discipline - labor and discipline that translating their finest productions as the best means would make any student of the law, of ordinary judg- of improving his style. During his study of the law ment and sense, the equal of Pinkney, of Wirt, or at Lincoln's Inn, he carried on the practice of oratory of Choate.
with the utmost zeal, and was a constant attendant Think of the eloquence of Cicero! How wonderful and speaker in a debating society which he had joined. the grandeur and magnificence of his style; how One day, says his biographer, he was surprised by a copious and elegant his diction; how various and friend, who suddenly entered his room, in “ the act comprehensive his knowledge; surely, we say, like of practicing before a glass, while Pope (the poet) sat the dwellers in the East, this is the work of magic - | by to aid him in the character of an instructor.” Such of genius. But when we take off the mask we find are the arts by which are produced those results that that it is mainly the result of careful, unflagging,
the uninitiated ascribe to genius. untiring study and practice. Middleton says: “His Sheridan was one of the most brilliant orators of industry was incredible, beyond the example or even modern times, and yet his maiden speech in Parliaconception of our days; this was the secret by which ment, delivered when he was nearly thirty years old. he performed such wonders, and reconciled perpetual was a failure. Woodfall, the reporter, used to relate study with perpetual affairs."
that Sheridan came up to him in the gallery, when the Nor were these orators of antiquity singular in their speech was ended, and asked him, with much anxiety, devotion to the art of speaking. All the great orators what he thought of his first attempt. “I am sorry to of modern times have emulated their greatness by say,” replied Woodfall, “ that I don't think this is your emulating their love of labor. Lord Chatham, who line; you would better have stuck to your former has been justly regarded as the most powerful orator pursuit.” Sheridan rested his head on his hand for a of modern times, was from his early youth a most few minutes, and then exclaimed. with vehemence: laborious and devoted student of oratory. His biog “It is in me, and it shall come out of me.” Quickened rapher says of him: “At the age of eighteen, Mr. by a sense of shame, he now devoted himself, with Pitt (afterward Lord Chatham), was removed to the the utmost assiduity, to the cultivation of his powers University of Oxford. Here, in connection with his as a speaker. Seven years after he bronght forward, other studies, he entered on that severe course of rhe in the House of Commons, the charges against Wartorical training, which he often referred to in after life ren Hastings, relating to the princesses of Oude, in a speech of such brilliancy and eloquence that the whole a flexible, sustained, and finely-modulated voice; his assembly, at its conclusion, broke forth into expres action became free and forcible; and he acquired sions of tumultuous applause, and the House ad- perfect readiness in thinking on his legs ;' in short, journed to recover from the excitement produced by he became one of the most brilliant and eloquent it. Pitt said, “an abler speech was perhaps never de- advocates that the world has ever produced. Well livered," and Fox and Windham, years after, spoke might one of his biographers say: "His oratorical of it with undiminished admiration. As Sheridan training was as severe as any Greek ever underwent." had said to Woodfall, it was in him and it did come The biographies of Pultney, of Burke, of Pitt, of out, but it was wrought out by patient toil and study. | Erskine, of Grattan, of Brougham-of all the great Moore paints him at his desk at work on this very orators of England-contain records of the same carespeech – writing and erasing with all the care and ful training and discipline in the art of speaking. pains-taking of a special pleader. Indeed, it trans Nor have American orators found the path to sucpired after his death, that his wit was most of it cess less difficult. Rufus Choate-who was, perhaps, studied out before hand. His common-place book the most accomplished advocate America has yet was found to be full of humorous thoughts and spor- | produced—was a noble illustration of what systematic tive turns, written first in one form and then in an culture and discipline can do. He was, in the truest other — the point shifted from one part of the sentence sense of the term, a made orator. Forensic rhetoric to another to try the effect. How little did his de- | was the great study of his life, and he pursued it with lighted hearers imagine, as some playful allusion, a patience, a steadiness, a zeal, equal to that of Chatkeen retort, or brilliant sally, flashed out upon them ham or Curran. He trusted to no native gift of from his speeches, in a manner so easy, natural, and eloquence, but practiced elocution every day for forty yet unexpected, that it had been long before labori years as a critical study. Everything that could be ously moulded and manufactured. Johnson tells us prepared, was prepared; every nerve, every muscle that Butler, the author of "Hudibras," had garnered that could be trained, was trained; every power that up his wit in the same way. How conclusively do daily practice could strengthen, was invigorated. So these examples illustrate the truth of Sir JosHUA thoroughly imbued was he with a zeal for oratory, REYNOLDS' remark, that the effects of genius must that it formed the subject of his almost daily converhave their causes, and that these may, for the most part, sation, as it did of his daily practice; and his biography be analyzed, digested, and copied, though sometimes will rouse an ambitious student as the sound of the they may be too subtle to be reduced to a written art. trumpet does the war-horse. Charles James Fox rose, says Mr. Burke, “by slow
Daniel Webster may, perhaps, be considered to have degrees, to be the most brilliant and accomplished
been as nearly a natural orator as any this country has debater the world ever knew," and Fox himself has
produced; and yet the students are few indeed that cultold us the secret of his skill. He gained it, he says,
tivate the art of oratory so laboriously as did he. Even " at the expense of the House," for he had frequently
his genius was mainly “science in disguise.” He himtasked himself, during an entire session, to speak on
self told the late Senator Fessenden, that those figures every question that came up, whether he was inter
and illustrations in his speeches, which had become so ested in it or not, as a means of exercising and training
famous and been so often quoted, were, like Sheridan's his faculties.
wit, the result of previous study and preparation; and Curran, the Irish orator and advocate, was known
that that passage in his speech, wherein he describes at school as “stuttering Jack Curran;" and, while
the glory and power of England—a passage known studying at an Inn of Court, the members of a
and quoted the world over-was conceived and fashdebating society to which he belonged called him
ioned while he was standing on the American side of “Orator Mum,” in honor of his signal failure as a
the Niagara river, listening to the British drum-beats speaker. But he had made up his mind to become an on the Canada shore. orator, and was not co be put down by obstacles. He
From these examples, we may learn that all truly spent his mornings, as he states, “in reading even to
noble orators in every age have trusted, not to inspiexhaustion," and the rest of the day in the more con
ration, but to discipline; that great as were their genial pursuits of literature, and especially in unre
natural abilities, they were much less than the ignomitting efforts to perfect himself as a speaker. His
rant rated them; that even the mightiest condescended voice was bad, and his articulation hasty and confused;
to certain rules and methods of study by which the his manner was awkward, his gestures constrained
humblest are able to profit. It is good for the student and meaningless, and his whole appearance calculated
to read of the studies and labors, the trials and conflicts, only to produce laughter. Such is the picture of him
the difficulties and triumphs of such men. It is to the left us by his biographers. Surely, one would think,
ambitious student as the touch of mother earth was to an orator could never be made out of such materials.
Antæus in his struggle with Hercules-renewing his Yet all these faults he overcame by severe and patient
strength and reviving his flagging zeal. It rouses labor. Constantly on the watch against bad habits,
him to severer self-denial, to more assiduous study, be practiced daily before a glass, reciting passages from
to more self-sustaining confidence, and leads him to Shakspeare, Junius, and the best English orators.
feel, like Themistocles of old, that “the trophies of Ho frequented debating societies, and unmindful of Miltiades will not let me sleep.” These examples will the ridicule that greeted his repeated failures, he teach him that God has set a price on every real and continued to take part in the discussions. At last, he noble achievement; that success in oratory, as in surmounted every difficulty. “He turned his shrill everything else worth succeeding in, can be purchased and stumbling brogue," says one of his friends, “ into I only by pain and labor; and lastly and mainly, that
those who would follow in their steps must give their delivery in any event. This we understand to be days and nights to study, and emulate their greatness the distinction drawn by the great body of authorities by emulating their love of labor. In our next number between the two classes of carriers. we shall offer some suggestions as to the best means But in this State the Court of Appeals has attempted of improvement in forensic rhetoric.
to establish a rule ignoring this distinction, and rendering the obligation of the carrier of passengers as extensive as that of the carrier of goods.
In Alden v. The N. Y. Central Railroad Co. (26 N. Y. THE DUTY OF CARRIERS AS TO PROVIDING R. 102), the court lays down the broad proposition that ROAD-WORTHY CARRIAGES.
the passenger carrier is bound, absolutely and irreThe English Court of Exchequer has recently de
spective of negligence, to provide road-worthy cided a case – Redhead v. The Midland Railway Co.
vehicles. In that case the accident was caused by the (20 L. T. Rep. 628) — which is of interest in this
breaking of an axle of the car. The weather was, and country, and which will probably hereafter be taken
had been for some time, extremely cold, which tended as a precedent in all cases relating to the liability of
to render the iron brittle. There was a small, old crack carriers of passengers. In that case, the plaintiff,
in the axle, so covered by the wheel that it was absowhilst a passenger on the defendant's road, was in- lutely out of reach of discovery by any practicable jured by an accident, caused by the breaking of the tyre
examination of the axle, unless by taking off the of one of the wheels of the car in which he was seated;
wheel, with great difficulty and labor. No claim was it was proved that such breaking was owing to an
made that the axle had not been properly manu air-bubble, which could neither be discovered in the
| factured. course of manufacture nor afterwards, and that in fact
The opinion in the case is very brief and seems to there was no negligence on the part of either the manu- / have been prepared without an examination of the facturer or the railway company.
many cases bearing on the question. This may LUSH, J., who tried the case, directed the jury that account for the extraordinary proposition it attempts if the accident could not be foreseen, and was not due to establish. The judgment is founded on the case of to any fault or carelessness on the part of the defend- | Sharp v. Grey (9 Bing. 457), which was the only caso ants, they were entitled to a verdict; and this ruling cited, except that of Hegeman v. The Western Railwas afterwards upheld by MELLOR and LUSI, JJ., in road Company, which we shall notice hereafter, and the Queen's Bench, though dissented from by BLACK- | which had evidently no influence in shaping the BURN, J. (Law Rep. 2 Q. B. 412). The Exchequer opinion of the court. Chamber has now unanimously sustained this judg If the interpretation given to the case of Sharp v. ment, after a most careful review of both the English Grey by the Exchequer Court in the case of Redhead, and American decisions, and established, so far at least before cited, be correct, it is evident that the judgment as England is concerned, the principle that carriers in the Alden case is unwarranted by it, and stands of passengers are not warranters of the absolute road without a precedent. Speaking of that case SMITH, J., worthiness of their vehicles, or in other words that who delivered the opinion of the Exchequer Court, there is no implied contract that their carriages and says: “That case, when examined, furnishes no suffimachinery are free from those defects which neither cient authority for the extensive liability which the skill, care nor foresight can detect.
plaintiff seeks to impose upon the defendant. There This decision is commended alike by sound sense the plaintiff was injured by an accident caused by the and an almost unbroken current of authorities. Car. breaking of the axletree of a stage-coach. The defect riers of goods are insurers against all events but the might have been discovered if a certain examination act of God and the king's enemies. The reason of this
| had taken place; and it was made a question of fact rigid rule is, as Lord HOLT says, in Cogg v. Bernard
at the trial whether it would have been prudent or (1 Sm. Lead. Cas.), that men are obliged, when they in
not to make that examination. trust their goods to carriers, to part with all control over TINDAL, C. J., who tried the cause, is reported to them, and that, if carriers were not insurers, it would have directed the jury to consider whether there had be easy for them to combine with thieves, and that “in been, on the part of the defendant, that degree of such a clandestine manner as would not be possible to vigilance which was required by his engagement to be discovered.” But with regard to the carriers of carry the plaintiff safely. Now, if the learned Chief passengers, the same rule has not, with one or two Justice had supposed there was an absolute warranty exceptions, to be hereafter noticed, been applied, “and of road-worthiness, this direction could not have been for the obvious reason," as Judge HUBBARD remarked given, as it would then have been immaterial whether in Ingalls v. Bills (9 Met. 1), “that a great distinction | the defendant had used vigilance or not, and the exists between persons and goods - the passengers degree of vigilance would have been an utterly imbeing capable of taking care of themselves, and of material consideration. The jury having found, on exercising that vigilance and foresight in the main his direction, for the plaintiff, a motion was made, in
their rights, which the owners of goods the absence of TINDAL, C. J., for a new trial. Two cannot do, who have intrusted them to others.” of the learned judges, in refusing the rule (GASELEE
The carrier of passengers undertakes that as far as and BOSANQUET, JJ.), are certainly reported to have human foresight can go he will provide for their safo used expressions which seem to indicate that they conveyance. The ground upon which his liability rests thought the defendant bound to supply a road-worthy is negligence, while the ground of the liability of the vehicle. PARK, J., used language which, as reportod, carrier of goods is the absolute warranty for safe is ambiguous. But the judgment of ALDERSON, J.,