Oral Law

“ What is the reason, that if you step into the Queen's Bench, or Common Pleas, or Exchequer, you will hear no such thing as a speech—behold no such animal as an orator—only a shrewd, plain, hard-working, steady man, called an attorney-general, or a sergeant, or a leading counsel, quietly talking over a matter of law with the judge, or a matter of fact with the jury, like men of business as they are, and shunning, as they would a rattlesnake, all clap-trap arguments, figures, flowers, and the obsolete embroidery of rhetoric? ”

“ I am forming an orator, whose business it is, not to adhere to one sect, but to go the round of all the arts and sciences. Accordingly we find, that the great master of ancient eloquence laid their foundation in a thorough study of the civil law, and to that fund they added grammar, music, and geometry. The fact is, in most of the causes that occur, perhaps in every cause, a due knowledge of the whole system of jurisprudence is an indispensable requisite. There are likewise many subjects of litigation, in which an acquaintance with other sciences is of the highest use. ”

“ Truly, Master Judge, he is a man much spoken of; marry, every man's cries are against him, and especially we; and therefore I think we have brought our Lawyer to touch him with as much law as will fetch his lands and my cow with a pestilence.
Thras. Sir, I am the other plaintiff, and this is my counsellor: I beseech your honour be favourable to me in equity. ”

“ That crafty politician who said the use of language is to conceal our thoughts, did not go farther in his theory, than the members of the legal profession in their practice; as every deed which comes from their hands may testify, and every Court of Law bears record. ”

“ For the concrete development of beautifully bewigged humanity, called a lawyer, I beg you to observe that I always express, and feel, extreme respect. But for Law itself, in the existent form of it, invented, as it appears to me, only for the torment and taxation of Humanity, I entertain none whatsoever. ”

“ Or, rather, their inclination is to confuse "a lawyer" with the law." A few confidential words with the old family attorney, they feel, and in some mysterious manner the affair is entirely off their hands. ”

“ Thou must face the truth, young college boy, who now and then dost stroll into court-rooms, or who dost lounge away an hour in a friend's law office admiring his books and piles of papers—thinking the while of the time when thou wilt have graduated and obtained permission to hang up thy pomp-gilded "shingle:" thou must face the truth! The counsel who so attracts thy admiration, in thy court-room lounging, has fought weary years with myriad obstacles ”

“ But oral argument, while not indispensable, is frequently if not usually desired by the parties. And there are occasions when a court deems it essential that oral argument be had; indeed, a court order or request to that effect may be necessary where the parties have previously indicated a willingness to forego the privilege. ”

“ hence all parties are obliged to borrow the ideas, and even the language, usual in judicial proceedings in their daily controversies. As most public men are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; ”

“ Let us have the true woman, the adorner, the hospitable, the religious heart, and no lawyer need be called in to write stipulations, the cunning clauses of provision, the strong investitures;—for woman moulds the lawgiver and writes the law. ”

“ There is no authority for the doctrine that a written agreement is exclusively taken to merge all previous and contemporary oral contracts relating to the same subject-matter, even such as are not inconsistent with the writing ”

“ The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. ”

“ The words 'seeds' and 'vegetables' are words of common speech, and there is no room here for the contention that they had acquired a special signification by usage or had a scientific, different from the popular, meaning. Whether the articles were properly classified as vegetables was a matter for the court to decide. The interpretation of words of common speech is within the judicial knowledge and matter of law. ”

“ And yet, there is not a more fatal error to young lawyers than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim an exemption from the drudgery of the law, his case is a failure in advance. ”

“ What judge of any court, what lawyer who wished to ascertain the true doctrine of a case, would search for the private opinions of the judge when the reports bristled with adjudicated cases from which he could learn the true doctrine which he had expressed under oath and in the discharge of his duties? When you search for the opinions of our ancestors to guide us as legislators, look at their conduct as legislators, and not their private opinions. Every lawyer, every sensible man, every rational man, knows that that is the true test of the opinions of our ancestors upon a given subject. ”

“ Such a person has exhibited a trait of character which, without the aid of the law in question, authorizes the court to declare him unfit to practise before it, and to strike his name from the roll of its attorneys if it be found there. ”

“ Who'll you have for your counsel?—or do you think of pleading your own cause? Ods bobs, you can make a good speech;—I always said that for you."
"Counsel!—cause!—speech!" echoed the man of law;—"God bless our two souls!"
"Amen,—or e'er a one of 'em," said Lingo, with solemn utterance; "for I'm thinking it will go hard with one of us. Howsomever, I'm glad to see you in your senses. Sorry you had so hard a bed of it; but howsomever, when they hang your client up there, I'll give you better quarters. I reckon, it will be imprisonment for life with you ”

“ Pray, sir, how are you dignified or distinguished amongst the rates of wits? and how many rates are there?
Dap. There are as many degrees of wits as of lawyers: as there is first your solicitor, then your attorney, then your pleading-counsel, then your chamber-counsel, and then your judge; so there is first your court-wit, your coffee-wit, your poll-wit, or politic-wit, your chamber-wit, or scribble-wit, and last of all, your judge-wit, or critic. ”

“ As, then, if I were really a stranger, you would have pardoned me if I spoke in the language and the manner in which I had been educated, so now I ask this of you as an act of justice, as it appears to me, to disregard the manner of my speech, for perhaps it may be somewhat worse, and perhaps better, and to consider this only, and to give your attention to this, whether I speak what is just or not; for this is the virtue of a judge, but of an orator to speak the truth. ”

“ A party desiring to sue or defend in forma pauperis must as a preliminary measure prepare a written statement of his or her case, setting forth the facts relied upon as a cause of action or defence, and obtain thereon an endorsed opinion of a barrister-at-law setting forth his professional opinion that the cause of action or defence as stated is good in law. ”

“ The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. ”

“ Precise use of words is part of the lawyer's craft. But we expect too much of a juror when we ask him to make intelligent distinctions after a three-month trial and after instructions such as those I have quoted above-in an area of law which is difficult enough for the seasoned attorney. ”

“ But his solicitor and his counsel and his counsel's clerk—particularly his counsel's clerk—soon put him at his ease, and instead of withdrawing at the feel of the bath, he is fain to plump right in. Whether he comes out on top or gets beaten is another matter; in any case, the trouble about the thing is that, win or lose, it is infinitely and appallingly costly. Law, the Englishman's birthright, is not to be given away. ”

“ Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. ”

“ Every public relations counsel has been confronted216 with the necessity of refusing to accept clients whose cases in a law court would be valid, but whose cases in the higher court of public opinion are questionable. ”

“ It may be bold, manly, energetic, or soft and persuasive; it may appeal to sympathy or threaten with a battery of accumulated facts. Forensic oratory is the highest type of art, the most powerful of human gifts. The only trouble with most court oratory is that it is only fit for the market-place. The lawyer begins with the firm impression that he must win the jury. His voice is bland and soothing, he feels that he must be soft and persuasive. He rubs his hands and remembering the old adage, that laugh and the world laughs with you, attempts a little joke. ”

“ There would be an end of all liberty of speech at the bar, if an advocate was to be punished for making a strictly regular application to a Court, and for arguing that certain words in a statute were to be understood in a certain sense. ”

“ A great number of the cases, too, which are raised for discussion in the law-books, appear to be rather possible than real, rather problematical cases proposed by a teacher to his students to be argued upon according to general principles, than as actual serious subjects for legal discussion. ”

“ But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. ”

“ A judge has been a counsel, and he may carry to the bench some of the professional prejudices of the bar. Indeed, if you consider the absurd license permitted to counsel in their treatment of witnesses, and the hostile attitude adopted by some judges toward medical and other scientific men who have to give their evidence, you will see that the judicial mind is not always quite as judicial as one would wish, especially when the privileges and immunities of the profession are concerned. ”

“ As an advocate in the Criminal Court, as counsel in the Civil Courts, as a cross-examiner in involved Equity suits, or in reducing complicated issues, he could dive into the depths of the sea of legal lore and bring out conclusive points in favour of his clients. ”

“ As a general rule, the people of new communities are more curious and interested in law—suits, and trials, and lawyers, than in almost anything else to which their attention can be called. Lawyers, especially, are the objects of their admiration and astonishment. ”

“ Every thing that we have been three weeks employed in doing reminds us that we are engaged not in a mere inquiry into the fitness of an officer for the place which he holds, but in the trial of a criminal case on legal principles. And this great truth, so important to the liberties and happiness of this country, is fully established by the decisions of this honorable Court, in this case, on questions of evidence—decisions by which this Court has solemnly declared, that it holds itself bound by those principles of law which govern our tribunals in ordinary cases. ”

“ But when I stated my view to a very eminent English judge the other day, he said, "You are discussing what the law ought to be; as the law is, you must show a right. A man is not liable for negligence unless he is subject to a duty." ”

“ I having no counsel, and never having stood in a Court of Justice before; in hearing my husband hooted and groaned at by the crowd, when the case was explained; in hearing his assertion respecting his breach of contract proved false, by evidence tendered on oath; in hearing the solicitor to my trustees tell him,—a magistrate, a peer's brother,—the father of my sons,—that it was expected the signed contract would have bound him " as a man of honour;" or, in other words, that he was_ not a man of honour; and seeing him shrink silently, unable to repel this insult ”

“ If the words be clear and explicit, leaving no room to doubt what the parties intended, they must be interpreted according to their natural and ordinary significance. If the words are ambiguous, then resort may be had to such evidence, written or oral, as will disclose the circumstances attending the execution of the instrument and place the court in the situation in which the parties stood when they signed the writing to be interpreted. ”

“ It is even more true at the present time, when what was once commonly reputed a "great speech" is seldom heard in our courts,—because the modern methods of practising our profession have had a tendency to discourage court oratory and the development of orators. ”