Pleadings in some remarkable cases before the Supreme Courts of Scotland since the year 1661 to which the decisions are subjoyn'd.

What Eloquence is fit for the Bar. AN ESSAY.

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 Inclinati∣ons; 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 con∣vinc'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 beau∣tifull, 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 reve∣rence, 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 foundati∣on 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 Elo∣quence 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 ex∣cellent 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 con∣sist in trops, figures, and such extrinsick ornaments, whereby our fancy is more gratified, then our judgement, and our dis∣course 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 pre∣sumptive 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 charm∣ing 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 ap∣posite 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 igno∣rance 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 Ecclesi∣astick, 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 them∣selves 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 prin∣ciples.

It is the nature of a syllogisme to have the subsumpti∣on 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 syl∣logistick 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 ex∣amples, 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 Plea∣der can only burden too much his hearers, and so wrong only himself. A narrow, and starved discourse, is like those slen∣der 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 Ar∣guments 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 argu∣ment, 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 former∣ly 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, terrarum{que} 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 Advo∣cats 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 streach∣ing 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 in∣consistent are backbite••s not only with the truth, but in what themselves invent, that I have heard one and the same Plea∣der, 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 ab∣surd 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 Adver∣sars; 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 Op∣ponent, 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 con∣cede 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 an∣swered. After the pursuer has stated his pursute, and en∣larg'd himself upon all the favourable circumstances which we call the merits of the cause, the defender propones his de∣fence, but urges it little, till he know if it be contravert∣ed; 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 com∣mon 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 re∣gulation of Law, and that Law is ty'd to observe nature.

The Discourse it self do's consist of these Arguments, where∣by 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 Argu∣ments 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 plac∣ed, seem unpleasant, and irregular, and will hardly be ex∣pected 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 con∣clude 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 con∣ceive, 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, repeat∣ed; for first, the enforcer do's repeat them, then the ans∣werer do's repeat them, both generally at the entry of his dis∣course; 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, be∣cause 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, be∣cause 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 con∣sequent should not preceed its cause.

Action, was of old one of the chief ornaments of Speech, un∣der 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.

With us, action is possibly too violent, which I ascribe both to the violent temper of our Nation, prefervidum Scoto∣rum ingenium, and to the way of our debate, for Fire sparkles ordinarily from the collision of two bodies, one against another, some debate for interest only, some for honour, but Advocats for both; yet hardly can he raise passion in others, who shows it not himself; and all men presume, that he who is very serious, and earnest to convince others, is the convert of his own Argu∣ment. I confess, that passion do's disorder very much the kindled speaker, and that he can hardly clear well his discourse who is himself perturb'd, and we know the design of an angry man no more, then we can see clearly the bottom of troubled waters: and therefore it were very advisable, that hot and cholerick spirits, should calm themselves before they adven∣ture to enter upon a serious debate; but such as are bashfull are the better to be warm'd, and to loose prudently, a little of their indiscreet modesty; melancholick persons likewayes who are ready to loose themselves in their wandering thoughts, need to be a little fretted, for thereby they become intent, and finding themselves somewhat piqu'd, they are gather'd into their subject. He who fears to be interrupted, will ordinarily stammer, for he will be more busie in thinking upon the being interrupted, then upon what he is to say; and there, passion do's well also, seeing then he considers nothing but what he is speaking.

Railing, is of all other qualities, the worst in a Pleader, for it makes men judge that his cause needs it, when he rails against his adverse Client, and that he finds himself worsted, when he rails against his adverse Advocat: but some times he is obliged to found upon matters of fact, which though they have much of reflection in them, yet are necessar truths; and sometime the Law by which he pleads, obleidges him to terms, which may seem rude to strangers, and in both these cases, not to be severe, were prevarication; though I have known Advocats

very innocently condemn'd for calling the late times Rebellion, and such as were forfeited Traitors, though in that they spoke their art, and were not obliged to speak their thoughts: and there are few Clients, who when they loose the Cause do not discharge a great part of their fury, upon these Advocats by whom they conceiv'd themselves overthrown.

Too subtile speading convinces few, because few understand it, and it is applauded by few, because few can reach to the practice of it; and in young men it may be interpret to be but affectation, or notionalnesse, though in such as have by long practice establisht their own reputation, it gains glory. Many citations also are to be avoided by all in pleading (though they are necessar in writing) especially in young men, for in these they are thought but common place-wit; and yet young men do most use that way, because they think thereby to supply their own want of authority; and because they know notmany parallel cases, and are not yet so intimatly acquaint with their subject, as to draw Arguments out of its retired intrails. Many parentheses are to be avoided, for they interrupt the threed of the discourse, and make it knotty, and mysterious, though these weeds grow ordinarily in the richest soil; and are the effects of a luxuriant invention. Frequent repetition of the ordinar compellations, such as my Lord Chancellor, or my Lord President, are to be likewayes shunn'd.

Before I propose what Phrase, or Stile is fit for a Pleader, it is fit to tell that the two usual stiles known by distinct names, are the Laconick or short sententious Stile, and the Asiatick, or profuse and copious Stile; the first was used by the old Roman Legislators, as is clear by reading the Digests; but when the Empire was transfer'd to Constantinople in Asia, the Empire changed its Stile with its Seat; and we find that Profluvium asiaticum in the Codex, and Novels. Yet all the Grecian and Roman Pleaders, even in their purity, us'd a full copious Stile, as is clear by Demosthenes, Cicero, and others,

and though Legislators or Judges should use the Laconick, yea the other must still reign at the Barr. A Barrister like∣wayes should rather study not to want words then to stick at the choosing fine ones, and the generality of hearers are more displeased at a gap, or breach in a discourse, then can be re∣compens'd by a multitude of these fine words or sentences which occasioned these gaps, whilst the speaker waited for these delicat words which he found after that stop; and as I have known many admir'd for a fluent speaking of pittifull stuff, so I have known others loose the reputation of Orators by studying in their greener years too much finenesse; and I would advise my friends who begin to speak, first to study fluency, and when they are arriv'd at a consistency there, they may easily refine the large stock they have laid together.

Many who are not friends to the Barr, inveigh much at the canting terms which they say is us'd there; but these do not consider, that every Science has its particular terms, and it were pedantry to substitute others in their place; and as a man looks ridiculously in a womans habit, or a woman when attir'd like a man; a Souldiour under a Gown, or a Church-man in buff; So it is as ridiculous to hear a Member of Parliament or a Coun∣cellor speak of affairs in terms of hunting, as it is for a Lawyer to speak in his terms of other things; and I laugh as much to hear Gentlemen speak in their canting terms of hunting, hauk∣ing, dauncing, as they can do to hear me speak in the idiom of my Trade: and to speak like a Gentleman at the Barr, is to speak like a pedant; pedantry being nothing, but a trans∣planting of terms from what they were fit for, to that to which they are most unfit, and I love equally ill, to hear civil Law spoke to in the terms of a Stile-book, or accidental Latin, (as is most ordinar) as to hear the genuin words of our Munici∣pal Law, forc'd to expresse the phrases of the Civil Law and Doctors.

It may seem a paradox to others, but to me it appears un∣denyable, that the Scottish idiom of the Brittish Tongue is more fit for pleading, then either the English idiom, or the French Tongue; for certainly a Pleader must use a brisk, smart, and quick way of speaking, whereas the English who are a grave Nation, use a too slow and grave pronunciation, and the French a too soft and effeminat one. And therefore, I think the English is fit for harranguing, the French for complement∣ing, but the Scots for pleading. Our pronunciation, is like our selves, firy, abrupt, sprightly, and bold; Their greatest wits being employ'd at Court, have indeed enricht very much their Language as to conversation, but all ours bending them∣selves to study the Law, the chief Science in repute with us, hath much smooth'd our Language, as to pleading: and when I compare our Law with the Law of England, I perceive that our Law favours more pleading then theirs does, for their Statutes and Decisions are so full and authoritative, that, scarce any Case admits pleading, but (like a Hare kill'd in the seat) it is immediat∣ly surprys'd by a Decision, or Statute. Nor can I enough admire, why some of the wanton English, undervalue so much our idiom, since that of our Gentry differs little from theirs, nor do our commons speak so rudely, as these of Yorkshire: as to the words wherein the difference lyes, ours are for the most part, old French words, borrowed during the old League betwixt our Nations, as Cannel, for Cinnamon; and servit, for Napkin; and a thousand of the like stamp; and if the French Tongue be at least equal to the English, I see not why ours should be worse then it. Sometimes also our firy temper has made us for hast, expresse several words into one, as stour, for dust in motion; sturdy, for an extraordinar giddiness, &c. But generally, words significant ex instituto, and therefore, one word is hardly better then another; their Language is invented by Courtiers and may be softer, but ours by learn'd men, and men of businesse, and so must be more massie and significant: and for our pronunciation, beside what I said formerly of its be∣ing

more fitted to the complexion of our people, then the English accent is; I cannot but remember them, that the Scots are thought the Nation under Heaven, who do with most ease learn to pronounce best, the French, Spanish, and other Forraign Languages, and all Nations acknowledge that they speak the Latin with the most intelligible accent, for which no other reason can be given, but that our accent is natural, and has nothing, at least little in it that is peculiar. I say not this to as∣perse the English, they are a Nation I honour, but to reprove the petulancy, and mallice of some amongst them who think they do their Country good service, when they reproach ours.

—Nec sua dona quisque recuset.

I know that Eloquence is thought to have declin'd from Cicero's time, and it has so indeed, if with pedants, we make Cicero the Standart, for nothing can be straighter then its square; but I conceive that the world do's like particular men, grow wiser and learneder, as it grows old; but of all things Eloquence should improve most, because of all things it rypens most by practice; experience discovers daily more, and more of the humour of such whom we are to convince; and the better we know them, we can convince them the easier. By experience also we learn to know, what forms, and sounds please most, and every Pleader and Orator adds some new in∣ventions to that of the last Age, and if one being added to twenty make twenty a greater number, then the Eloquence of this Age, being added to that of the former, must make this Age more eloquent then the last. But I know such as envy the Orators of the present Age, do still endeavour to mortifie them, by admiring such as are dead, who in their time met with the same measure; death also removes men from being our rivals, and so from being envy'd by us; yet we should remember, that even Cicero, and Demosthenes did complain of the same in their Age, though they far exceeded their predecessours.

Some may think that the Eloquence of Rome, and others behov'd to be higher then ours, because the multitude were in

these Common-wealths absolutely govern'd by it, and the greatness of their reward for Eloquence, exceeding ours, their Eloquence behov'd to do so too. But I am formally contrary, for since our Judges are wiser, and more learn'd then the com∣mons, there must goe more art to convictions now, then was requisite then, and though we have not Kings, nor Common-wealths to defend, as those ostimes had, who pleaded in the Roman Senat; yet we may show as much Eloquence upon lesser occasions, as one may cut finer figures upon Steel, then upon Gold; it is the intricacy of the case, and not the great∣ness of the pryze, which makes the value of the pleading, and generous Spirits are more animated by difficulty, then gain. We have also moe Laws, Parallels, and Citations to beautify our discourse, then they had, and want none of their topicks; so that though our spirits did not equal theirs, yet in our pleadings we could not but exceed them. Nor do I value much the opinion of those, who think the Spirits of such as liv'd in Common-wealths were greater, because freer then ours, who live under Monarchies, and being sub••ects to none, they had greater confidence then we can have. This is but a fancy, in∣vented by such as live under that form of Government: but I have not seen any Switzer, or Hollander, so Eloquent as the English, or French; and it enlivens me more to see Kings, and Courts, then to see these busie, and mechanick Nations: nor can I think any spirit can excell much in any one thing, where equality is design'd, and where all such as offer to rise above the vulgar, are carefully deprest, and sunk down to a level, as they are under Common-Wealths.

For my own part, I pretend to no bayes; but shall think my self happy, in wanting, as the fame, so the envy which attends Eloquence: and I think my own imperfections suffi∣ciently repay'd by fate, in that it has reserv'd me for an Age, wherein I heard, and dayly hear, my Collegues plead so charm∣ingly, that my pleasure do's equal their honour.