In the Magnetic Lady, the character of Practice, the lawyer, is described by Compass with some irreverent fun at our gown and wig:

"A man so dedicate to his profession,

And the preferments go along with it,

As scarce the thundering bruit of an invasion
Another eighty-eight, threatening his country
With ruin, would no more work upon him
Than Syracusa's sack on Archimede;

So much he loves that night-cap! the bench-gown,
With the broad gard on the back! these show a man
Betrothed unto the study of our laws."

To which Practice answers:

"Which you but think the crafty impositions
Of subtile clerk, feats of fine understanding,
To abuse clots and clowns with."

When asked if "Practice will be of counsel against us?" Compass says:

"He is a lawyer and must speak for his fee,

Against his father and mother, all his kindred,
His brothers or his sisters; no exception
Lies at the common law. He must not alter
Nature for form, but go on in his path."

Jonson seems to think it necessary to explain that in this character he meant no disrespect to our profession, for in one of the interlocutory passages, the Boy, in answer to Master Dampley, who inquires whom the poet means by certain characters of the drama, replies: "You might as well ask me what eminent lawyer by the ridiculous master Practice, who hath rather his name invented for laughter, than any offense or injury it can stick on the reverend professors of the law; and so the wise ones will think."

To Sir Diaphanous Silkworm, who has been assaulted, Practice recommends a resort to law:

"That will give you damages:

Five thousand pounds for a finger I have known Given in court; and let me pack your jury." Further on, Practice says he is "a bencher, and now double reader;" a reference to the days when readings in the Inns of Court were kept up; after seven years the lawyer was in turn to read the second time, and was then called a "double reader." Practice is evidently of authority, for the clerk issues to him a marriage license in blank. To Compass, who asks him how to recover his wife's portion, Practice advises:

"Sue him at common law:

Arrest him on an action of choke-bail,

Five hundred thousand pounds; it will affright him
And all his sureties."

Of this peculiar action Sir Diaphanous says: "It is a terrible action; more indeed

Than many a man is worth: and is call'd frightbail." Practice gives an opinion on another point of law, namely, the crime of infanticide:

"The law is plain; if it were heard to cry
And you produce it not, he may indict
All that conceal it, of felony and murder."

WEBSTER.

66 The Devil's Law Case," by Webster, as may be inferred from the title, is very rich in law and lawyers. The action is conveyed in a word:

"Oh, jealousy, How violent, especially in women! How often has it rais'd the devil up in form of a law case!"

The first scene in point is between Crispiano, a civil lawyer, and Sanitonella, his clerk. The latter gives us a good idea of the lucrativeness of law practice in Spain, by telling us that his master, "by his mere

practice of the law, has gotten, in less than half a jubilee, thirty thousand ducats a year." But it has been accumulated by hard work, as now-a-days. Here the clerk's rehearsal of these toils:

"All the time of your collectionship
Has been a perpetual calendar; begin first
With your melancholy study of the law,
Before you come to finger the ruddocks; after that
The tiring importunity of clients,

To rise so early and sit up so late;

You made yourself half ready in a dream,
And never pray'd but in your sleep. Can I think
That you have half your lungs left with crying out
For judgments and days of trial? Remember, sir,
How often have I bore you on my shoulder,
Among a shoal or swarm of reeking night-caps,
When that your worship has bespit yourself
Either with vehemency of argument

Or being out from the matter."

By "ruddocks" we understand red gold coin; "half ready" means half dressed; "night-caps" is sarcastic for wigs. Sanitonella is a practical rogue; he insists" that no proctor in the term-time be tolerated to go to the tavern above six times i' th' forenoon; it makes their clients overtaken, and become friends sooner than they would be."

The master himself has an eye to the main chance, and deems nothing

"like the pleasure In taking clients' fees, and piling them In several goodly rows before my desk, And according to the bigness of each heap, Which I took by a leer (for lawyers do not tell them);" That is, judged of by a glance, without counting"I vail'd my cap, and gave great hope The cause should go on their sides." "The noise of clients at my chamber door Was sweeter music far, in my conceit, Than all the hunting in Europe."

Ariosto, an advocate, in Crispiano's opinion, is

"the very miracle of a lawyer; One that persuades men to peace, and compounds quarrels Among his neighbors, without going to law." "Yes, and will counsel

In honest causes gratis; never in his life
Took fee but he came and spake for't; is a man
Of extreme practice; and yet all his longing
Is to become a judge."

We infer from this that judicial salaries were larger then than now.

Romelio has a poor opinion of our profession. He tells Ariosto:

"Of all men living,

You lawyers I account the only men
To confirm patience in us; your delays

Would make three parts of this little christian world
Run out of their wits else."

Sanitonella introduces to his master, Leonora, as a client, the nature of whose business is shadowed forth in the first line:

"Take her into your office, sir; she has that in her belly Will dry up your ink, I can tell you.

This is the man that is your learned counsel,

A fellow that will trowl it off with tongue;

He never goes without restorative powder

Of the lungs of fox in's pocket, and Malaga raisins

To make him long-winded."

And hands him a brief. Ariosto asks:

"Do you call this a brief?

Here's, as I weigh them, some fourscore sheets of paper." But Sanitonella replies:

"We call this but a brief in our office;

The scope of the business lies in the margin." But Ariosto likes not the odor of the suit, and Sanitonella employs Contilupo, a spruce lawyer, who, Ariosto having in anger torn up the brief, is still able to read the "foul copy" by the aid of "twenty double ducats;" inquiring, "Is not this vivire honeste?" is

told by Sanitonella, "that's struck out, sir; and wherever you find vivire honeste in these papers give it a dash, sir;" is "wont to give young clerks half fees to help him to clients." Of course he accepts the business.

The court scene is very strongly drawn. Sanitonella cautions the officers to "take special care that you let in no brachy graphy men (short hand writers) to take notes." He is provided against a long sitting with "a lovely pudding pie, which we clerks find great relief in." Crispiano appears as a judge, but is not known to the suitors. The charge is that Romelio is illegitimate, being really the son of Crispiano, while his mother, Leonora, is married to another. Crispiano being thus implicated, discovers himself, descends from the bench and surrenders his place to Ariosto,

who fears

"This law business

Will leave me so small leisure to serve God
I shall serve the king the worse."

And makes a seemingly necessary explanation in accepting:

"I do here first make protestation,

I ne'er took fee of this Romelio

For being of his counsel; which may free me,
Being now his judge, fro' the imputation
Of taking a bribe."

The cross-examination by Crispiano of the waitingwoman produced by Leonora to prove his intimacy with her mistress, is exceedingly skillful and humorously drawn, but the trial is too broad, as well as too long, to be here detailed. It is sufficient to say that the accusation is completely disproved. According to the roguish clerk:

"Uds foot, we are spoil'd;

Why, my client's proved an honest woman.
Well, I will put up my papers,

And send them to France as a precedent,

That they may not say yet, but for one strange
Lawsuit, we come somewhat near them."

Law makes a less prominent figure in "A Cure for a Cuckhold," but the play treats of a novel and amusing question. Franckford has a suit against Compass, a sailor, for the custody of a child, the fruit of an intrigue between himself and Compass' wife during the husband's absence at sea; and with his attorney, Dodge, resorts to a tavern where also comes Compass and his attorney, Pettifog. The parties and attorneys talk over the suit separately. Dodge tells his client "we shall carry it through most indubitably. You have money to go through with the business, and ne'er fear it but we'll trounce 'em; you are the true father." The tavern boy asks Compass if he will have any music, and he answers: "Music among lawyers! here's nothing but discord." Pettifog tells him that "the defendant was arrested first by Lattitat in an action of trespass." Compass says, "a lawyer told me it should have been an action of the case -a touch of nature which every lawyer will recognize. Pettifog thinks "your action of the case is in that point too ticklish;" but has no doubt he will overthrow his adversary. "Sans question. The child is none of yours. What of that? I marry a widow is possessed of a ward; shall not I have the tution of that ward? Now, sir, you lie at a stronger ward; for partus sequitur ventrem, says the civil law, and if you were within compass of the four seas, as the common law goes, the child shall be yours certainly." Compass: "There's some comfort in that yet. O, you attorneys

in Guildhall have a fine time on't! You are in effect both judge and jury yourselves, And how you will laugh at your clients, when you sit in a tavern and call them coxcombs, and whip up a cause, as a barber trims his customers on a Christmas eve, a snip, a wipe and away!" Pettifog: "That's ordinary, sir; you shall have the like at a nisi prius."

Two other clients come in to Pettifog, and stand treat, or rather hand money ostensibly for that purpose to him, of which the lawyer says: "This is my tribute; custom is not more duly paid in the Sound of Denmark," and thus reckons up his gains: "I have sate here in this tavern but one half hour, drunk but three pints of wine, and what with the offerings of my clients in that short time, I have got nine shillings clear, and paid all the reckoning." "Almost a counsellor's fee," says another of the party. "And a great one, as the world goes in Guildhall," replies Pettifog, "for now our young clerks share with 'em, to help 'em to clients." Of the two last coming clients he says: "My client that came in now sues his neighbor for kicking his dog, and using the defamatory speeches, come out, cuckhold's cur. The other that came in was an informer, a precious knave." The legal party is now increased by the advent of Justice Woodroff, and a counsellor. The justice is one of the "compromisers" or arbitrators to whose judg ment the controversy has been left, and the counsel lor announces to Compass that the decision is against him, and gives him the prevailing reasons:

"A child that's base and illegitimate born," The father found, who (if the need required it)} Secures the charge and damage of the parish, But the father? who charged with education But the father? then, by clear consequence, He ought, for what he pays for to enjoy. Come to the strength of reason, upon which The law is grounded: the earth brings forth, This ground or that, her crop of wheat or rye; Whether shall the seedsman enjoy the sheaf, Or leave it to the earth that brings it forth? The summer tree brings forth her natural fruit, Spreads her large arms; who but the lord of it Shall pluck the apples or command the lops? Or shall they sink into the root again? 'Tis still most clear upon the father's part." But Compass retorts: "All this law I deny, and will be mine own lawyer. Is not the earth our mother? and shall not the earth have all her children again? I would see that law durst keep any of us back; she'll have lawyers and all first, though they be none of her best children. My wife is the mother; and so much for the civil law. Now I come again, and y' are gone at the common law." He then adduces a striking illustration derived from the natural history of domestic animals, in which he supposes one man's gentleman-pig to associate with another man's lady-pig, and in respect to their progeny, asks with great force, "who shall keep these pigs?" This course of reasoning convinces both the justice and the counsellor, they revoke their former opinion, and the child is adjudged to Compass.

In the Duchess of Malfi, Webster draws the character of an unjust prince, and among other things, says:

"Hears men's suits

With others' ears; will seem to sleep o' the bench,
Only to entrap offenders in their answers;
Dooms men to death by information,
Rewards by hear-say.

"The law to him

Is like a foul black cobweb to a spider, He makes it his dwelling, and a prison To entangle those shall feed him."

that he intends to renew it, and as an officer cannot arrest for misdemeanor committed out of his view, upon the information of others, the lawful right of the officer to take such party in charge must depend upon the fact of his having himself reasonable ground to apprehend a renewal of the affray.

Whether or no, when all danger of any further breach of the peace is over, no felony having been committed, private individuals are bound to set at liberty persons in their custody, or whether they may take them before a magistrate, or give them into the custody of a peace officer, does not appear to have been discussed. (See Ros. Cr. Ev. 240.) The power of an officer to take into his custody, upon a reasonable information of a private person under such circumstances, and of that person to give in charge, must be reciprocal; in other words, if the one has the right to place a party in custody of the other, the other certainly | has the corresponding right to receive the party into his custody; and if the officer has no right to receive a prisoner from a private person who arrested him in an affray, such person can have no right to place him in the officer's custody. This is a proposition too plain to admit of discussion.

An officer cannot arrest a party for an affray out of his own view, after it is over, without a warrant from a magistrate; in other words, he cannot act upon the information of others in such cases. For a like reason it would seem he cannot take into his custody a person brought to him by a private individual who apprehended him at the time of the commission of such offense. In 1 Russ. on Crimes, 600, it is laid down as follows: "There is no distinction as to the power to apprehend between one kind of misdemeanor and another, as between breach of the peace and fraud, but the rule is general that in all cases of misdemeanor there is no power to apprehend after the misdemeanor is committed. We conclude, therefore, that an officer has no greater authority to take into his custody a prisoner arrested by a private citizen, for a breach of the peace, than he would have to make the arrest himself in the first instance after it is all over, but that the citizen may, after the affray is wholly over, and there is no danger of its renewal, either discharge the prisoner or take him before a magistrate." It is a legal duty imposed upon citizens to endeavor to arrest those who commit felonies, or dangerously wound another in their presence, and, therefore, they are liable to have some criminal punishment inflicted upon them for a neglect of such duty; but as to affrays and riots, there does not exist such grave responsibilities. although the law compels citizens to act at once in the arrest of felonies, it permits only their interference in the other class of crimes; and it is, perhaps, only a moral instead of a legal duty for them to endeavor to suppress affrays and riots by way of arrest of the guilty parties.

And

If a private person see another on the point of committing treason or felony, or doing any act which would manifestly endanger the life of another, he may lay hold of him until it may be presumed that he has changed his purpose. There seems to be, however, no authority for extending this common law right of private individuals to arrest for certain misdemeanors, committed in their presence, to all other misde

meanors, as, for instance, that numerous class called statutory misdemeanors.

On this subject Mr. Bishop, in his Criminal Procedure, vol. 1, 2 628, has the following: "If a person is present when another is committing a crime, it is incumbent on him to do something to prevent the crime, and, failing in this, to bring the criminal to justice. When the crime is treason or felony, the duty, as we have seen, is accompanied with the penalty of fine and imprisonment for its neglect. But when the crime is of a lower grade, and in one sense the duty is a mere moral one, the reason of the thing would seem to be, that the law will permit the person, if he is disposed to discharge this moral duty, by interfering to prevent the commission of the crime, or to arrest the criminal, or both. Yet the law might not allow this duty to be carried to all lengths. If the thing done was merely malum prohibitum, not being malum in se, or was of a nature not immediately disturbing the public repose, and not offending public morals, or the like, so injudicious would it be to make the arrest, without a warrant, by a private person, when no perceptible harm would come from the delay necessary to call in public authority, that the courts could hardly be expected to sanction such arrest. Indeed, it is very uncertain how far the courts would go in the midst of any facts standing on this shadowy ground of legal doubt."

There are some special powers given by statute to private individuals to arrest without warrant in some cases when the offense is committed in whole or in part in their presence, as for violation of the statute in relation to persons trading as hawkers and peddlers without license, etc., the statute in relation to persons appearing disguised contrary to law, and also, the statute to "provide for the more effectual protection of fruit growers against trespassers." The legislatures of the different States have been very slow, however, to confer upon private persons the power to arrest without warrant for statutory offenses not above the grade of misdemeanors, and it is presumed that when such extraordinary power is granted to the citizen it is in cases where there is a great necessity for its exercise. Second. After the offense has been committed.

The right of private persons to arrest without warrant, after the offense has been committed, is confined to cases of felony. Where private persons use their endeavors to bring felons to justice, some precaution ought to be observed:

First. It should be ascertained that a felony has been actually committed by some one; for, if that be not the case, no suspicion, however well grounded, will justify the arrest, or afford the protection which the law extends to persons acting with proper authority; but if a felony has been in fact committed, then a private person has the same authority to arrest without warrant that an officer possesses; that is, after it is ascertained that a felony has been committed by some person, he may pursue the suspected felon and arrest him, subject only to proper legal restraint; and we, therefore, inquire into the nature of such legal conditions and restrictions.

Second. A felony having been committed, and a private person having reasonable cause to suspect a particular person to be guilty of its commission, he

may, acting in good faith, arrest such person; and he will not be liable, either in civil or criminal prosecution, should the suspicion prove unfounded.

It is, however, often imprudent, in a private person, to arrest for such offense formerly committed; at least, unless he was present at the time of its commission, and there is danger of the offender otherwise escaping. It is better for the citizen to disclose his suspicion to an officer, and let him take upon himself the responsibility of arresting the suspected party, or to a magistrate, who may grant a warrant to an officer to apprehend him.

Chief Justice SAVAGE has very clearly stated the rule as follows: "My understanding of the law is, that if a felony has, in fact, been committed by the person arrested, the arrest may be justified by any person without warrant, whether there is time to obtain one or not. If an innocent person is arrested upon supicion by a private individual, such individual is excused if a felony was in fact committed, and there was reasonable ground to suspect the party arrested; but if no felony was committed by any one, and a private individual arrest without warrant, such arrest is illegal, though an officer would be justified if he acted upon information which he had reason to rely

on."

It is evident that it is impossible to give any certain rule as to what constitutes reasonable cause to arrest

every suspected party. From the nature of things, this depends upon the peculiar circumstances of each case. What facts will amount to a sufficient excuse, or will justify a reasonable suspicion that the party had committed a felony, although sometimes treated as a question of law, seems rather to be a question of fact for the jury, to be determined by the circumstances of each particular case, or, as some authorities say, a mixed question of law and fact. The suspicion ought to be reasonable, and not without good cause. It is said that mere suspicion that a felony has been committed will not justify an arrest; but a belief founded on pregnant circumstances—such facts and circumstances as would warrant a cautious man in the belief that the party arrested was the real offender-is sufficient.

ON THE STUDY OF FORENSIC ELOQUENCE.

II.

Having endeavored in a previous article to show that eloquence is not so much the result of natural gifts as of persevering and persistent labor, we now proceed to offer some suggestions as to the best means of improvement in forensic eloquence.

Socrates used to say that "all men are sufficiently eloquent in that which they understand;" but it would have been nearer truth to say that no man can be eloquent on a subject that he does not understand; nor on a subject that he does understand, unless he knows how to form and polish his speech. The two essential things to the orator are something to say and a knowledge of how to say it. There is no art that can teach one to be eloquent without knowledge. Attention to style, diction and all the arts of speech can only assist the orator in setting off to advantage the stock of materials which he possesses; but the

stock, the materials themselves, must be brought from other quarters than from rhetoric. In the first place the advocate must have a profound knowledge of the law. On this depends his reputation and success, and nothing is of such consequence to him or deserves more his deep and serious study. In no other profession is superficial knowledge sooner detected or more ruthlessly exposed, and however brilliant as a speaker one may be, if it but become known that he is not well grounded in the law, few will choose to commit their cause to him. Besides a knowledge of the general principles of law, another thing highly material to the success of every advocate is a diligent and careful attention to every cause that is entrusted to him, so as to be thoroughly master of all the facts and circumstances relating to it. Cicero has left a very instructive record of the method pursued by him in the preparation of a cause for trial, and which we commend to the careful consideration of every student and lawyer. He tells us, under the character of Antonius, in the second book De Oratore, that he always conversed at full length with every client who came to consult him; that he took care there should be no witnesses to their conversation, in order that his client might explain himself more freely; that he was wont to start every objection and to plead the cause of the adverse party with him, that he might come at the whole truth and be fully prepared on every point of the business; and that after the client had retired he used to balance all the facts with himself under three different characters: his own, that of the adversary and that of the judge. He censures very severely those of the profession who decline to take so much trouble; taxing them not only with shameful negligence, but with dishonesty and breach of trust. Quintilian likewise urged the necessity of carefully studying every cause, again and again recommending patience and attention in conversation with clients. "For," said he, "to listen to something that is superfluous can do no hurt; whereas to be ignorant of something that is material may be highly prejudicial. The advocate will frequently discover the weak side of a cause, and learn at the same time what is the proper defence, from circumstances which to the party himself appeared to be of little or no moment." It is said of Rufus Choate, that he began to study a case the moment it was brought to him, and that he continued to study it till the day of trial.

Besides the knowledge of the law, the advocate must make himself acquainted with the general principles of logic. He must learn how to reason; how to draw conclusions from premises; how to found an argument. Without a knowledge of these things, no matter how copious his diction or elegant his delivery, his speeches will be little more than "sounding brass and tinkling cymbals."

The object of the advocate is chiefly to convince, and to do this he must satisfy the understanding. Solid argument and clear method must, therefore, be used. Nothing can be more erroneous than the idea that mere declamation is eloquence. It may have the show, but never can produce the effect; it "may tickle the ear," but it will never lead a judge to pass that judgment or a jury to adopt that side of the cause to which we seek to bring them. "There is no talent, I