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unanimity ceased to be compelled by torture than the truth appeared. Juries, in rapidly increasing numbers, were discharged without a verdict, by reason of hopeless disagreements.
Therefore, in dealing with a Special Jury, you have two aims: first, to win the verdict, if you can; and failing that, to produce such a difference of opinion as may lead to their discharge without a verdict. In addressing a Special Jury, you should assume a tone and manner and form of speech different from those with which you talk to a Common Jury. You should raise yourself to them : you may venture upon argument; you may use choicer language, without fear of speaking
over their heads;" you may appeal to many motives that would be unfelt by a Common Jury. But a Special Jury is not without prejudices of its own-class prejudices which your own instincts ought to tell you to avoid, or to enlist on your side, as the need may be. It will be unnecessary to resort to the repetitions that are essential where it is your task to beat ideas into minds, slow, because unaccustomed to thought; the same arts are not required to fix their attention.
The style best adapted for a Special Jury is indicated by your office. You are a gentleman, talking to gentlemen who are your equals in position, and therefore it should be free without being familiar, and deferential without humility. You have the advantage in this, that
you have something to tell them which you know, and it is your business to impart your knowledge to them; but, also, they are to be your judges, and therefore you treat them as men whose goodwill you are desirous to conciliate. And, with all Juries, whether special or common,
remember the precept I have already urged upon you ; do not weary them by saying too much ; but, even if you have more to say, on the instant you perceive the first unmistakeable symptoms of weariness in your audience, bring your speech to a close, and sit down; for, from that moment, you are not merely wasting the best argument and the most artistic eloquence—you are undoing whatever advantage you may have gained before, and every sentence is a step backwards from victory.
THE ORATORY OF THE BAR (CONCLUDED).
WHEN you address the Court, you should adopt a style, a manner and a tone different from those with which you address a Jury, whether special or common. When speaking to a Jury, you address men not learned in the law, for the most part not well accustomed to the mental work of rapidly following a compact argument. Alike with a Special and a Common Jury, it is necessary to elaborate your argument, that they may keep pace
with it, and to repeat it, or the more important part of it, even twice or thrice, for assurance that the slowest mind among the twelve shall have taken hold of it. But when you address the Court you appeal to intelligence greater than your own, to a mind or minds practised in argument, trained to its pursuit, comprehending instantly the meaning of every word you use, and the more technical your talk the more intelligible it is to the listeners. Therefore you need none of the arts required to win the ears of a Jury. You should condense your thoughts and language, devoting your entire attention to the logical array of your argument, and the precision with which you present it. The graces of oratory, such as voice and manner can impart, are never useless, nor to be despised in any kind of speaking, and they are not to be disregarded even in addressing the Court; but they are by no means necessary to a successful effort. The attention of the Judge is directed more to your argument than to you—to your matter rather than to your manner; and, provided that the argument you have constructed be sound and sensible, it will be heard and accepted, although conveyed in broken sentences and inelegant language. Hesitating speech to a Jury is worse than fluent feebleness, because it is mistaken for incapacity; but, by the Court, fluency and hesitation are alike disregarded, and the speaker is measured more by his mind than by his lips. Do not, therefore, lose courage if you lack expression for your logic; provided only that
you have in your own mind the clear construction of an argument, you may safely trust to your audience to seize it, whatever the difficulty with which you bring it forth.
But then it is difficult to discover if you have in your mind a perfectly reasoned argument. In fact, the mind is very apt, unconsciously to itself, to adopt a summary process of reasoning, and to arrive at a conclusion by jumps, instead of by steps. When, in a vierely contemplative argument, we arrive at a difficulty, the mind is liable to pass on one side of it, or to leap over it, instead of threading its way through it, and often the fault is not found until the thoughts take shape in words. The surest way to avoid this not uncommon discomfiture is to set down your argument upon paper-(not the very words to be used, but only an outline of it)—in the order in which you design to place it before the Court. This
skeleton of the discourse will serve the double
purpose of enabling you to detect any defects or fallacies not seen when it existed only in contemplation, and of keeping you strictly to the point when you are presenting it to the Court. In this summary be careful to separate the several parts of the argument, so that they may be readily caught by the eye, for when you are hurried and flurried by action, a written page is merely a confused mass to your glance, unless the sentences are marked by very obvious divisions. Although you would not habitually resort to the preacher's practice of announcing the divisions of the discourse to the audience, with the formidable figures that advise them of the task that is before them, it is necessary that you should so state the divisions on your note, for your own guidance. These divisions should be written from the outer margin, and the subdivisions should be written within a second margin, and the cases you propose to cite by way of illustration should be noted within a third margin. The effect of this arrangement is, that at any moment a glance will inform you what you have said, what more you have to say, and in what order
say In putting your argument, your manner should be deferential and your language suggestive. Nothing but consummate ability and unquestioned profundity of legal knowledge excuses a dogmatic style of address. It has been endured, and even commanded respect, by the Bench ; but it was accompanied by personal dislike, and no junior could adopt it with impunity. Diffidence, even if it take the form of confusion of speech, is sure to receive kindly encouragement from the Judges, and you could not desire a more generous audience.
Do not, however, think that I design to assert that