However, there are difficulties on the harpsichord of another kind, to ballance the account, fuch as the two hands playing two different parts in diffimilar motion at once, and often three or four parts with each hand. Of a good shake, a fweet tone, and neat execution, almoft every hearer can judge; but whether the mufic is good or bad, the paffages hard or ealy, two much or too little embellified by the player, fcience and experience can only determine.

"In chamber mufic, fuch as cantatas, fingle fongs, folos, trios, quartets, concertos, and fymphonics of few parts, the compofer has lefs exercife for reflection and intellect, and the power of pleating in detached pieces by melody, harmony, natural modulation, and ingenuity of contrivance, fewer reftiaints, and fewer occafions for grand and flriking effects, and expreffion of the paffions, than in a connected compofition for the church or the stage. Many an agreeable leffon, folo, fonata, and concerto has been produced by musicians who would be unable to compofe a Te Deum for voices and inftruments, or to intereft and fatisfy an audience during a fingle act of an opera. We never have heard of Corelli, Geminiani, or Tartini attempting vocal melody, and the mufic merely inftrumental of the greateft vocal compofers is often meagre, common, and infipid. There are limits fet to the powers of every artist, and, however univerfal his genius, life is too flort for univerfal application.

"It was formerly more enfy to compofe than play an adagio, which generally confifted of a few notes that were left to the tafte and abilities of the performer; but as the compofer feidom found his ideas fulfilled by the player, adagios are now made more chantant and in

terefting in themselves, and the performer is lefs put to the torture for embellishments.

"In 1752, Quantz claffed quartettos at the head of inftrumental mufic, calling them the touch-stone of an able compofer; adding, that they had not yet been much in faflion. The divine Haydn, however, has fince that time removed all kind of complaint on that account, having produced fuch quartets for number and excellence, as have never been equalled in any fpecies of compofition at any other period of time.

"In compofing and playing a folo, the leaft complicated of all mufic in parts, much knowledge, felection, invention, and refinement are neceffary. Eetides confulting the genius of the inftrument and power of the performer, new, interefting, and fhining paffages must be invented, which will at once please and furprife the hearer, and do honour to the compofer and performer. And who can judge of the originality of the compofition, its fitnefs for the inftrument, or degree of praise due to the performer, but those who have either ftudied compofition, practifed the fame inftrument, or heard an infinite variety of mufic and great performers of the fame kind?

"The famous queftion, therefore, of Fontenelle: "Sonate, que veux tu ?" to which all fuch recur as have not ears capable of vibrating to the fweetnefs of well-modulated founds, would never have been afked by a real lover or judge of mufic. But men of wit of all countries being accustomed to admiration and reverence in fpeaking upon fubjects within their competence, forget, or hope the world forgets, that a good poet, painter, phyfician, or philofopher, is no more likely to

be

be a good musician without study practice, and good cars, than another man. But if a lover and judge of mufic had asked the fame queftion as Fontenelle; the fonata fhould answer: "I would have you liften with attention and delight to the ingenuity of the compofition, the neatnefs of the execution, fweetnefs of the melody, and the richnefs of the harmony, as well as to charms of refined tones, lengthened and polished into paffion.

"There is a degree of refine ment, delicacy, and invention, which lovers of fimple and common mufic can no more comprehend than the Afiatics harmony. It is only understood and felt by fuch as can quit the plains of fimplicity, penetrate the mazes of art and contrivance, climb mountains, dive into dells, or cross the feas in fearch of extraneous and exotic beauties with which the monotonous melody of popular mufic has not yet been embellished. What judgment and

good tafte admire at first hearing, makes no impreffion on the public in general, but by dint of repetition and habitude.. A fyllogifin that is very plain to a logician, is incomprehenfible to a mind unexercifed in aifociating and combining abftract ideas. The extraneous, and feemingly forced and affected modulation of the German compofers of the prefent age, is only too much for us, because we have heard too little. Novelty has been acquired, and attention excited, more by learned modulation in Germany than by new and difficult melody in Italy. We diflike both, perhaps only because we are not gradually arrived at them; and difficult and eafy, new and old, depend on the reading, hearing, and knowledge of the critic. The most eafy, fimple, and natural is new to youth and inexperience, and we grow nice and faftidious by frequently hearing compofitions of the first clafs, exquifitely performed.

''

"L

Our

ET us begin to examine witnefs; firft, however, let me ask, have you a clear and comprehenfive idea of the points to be maintained, of the outline of the facts of your cafe, of the place and order in which every circumftance already difclofed, or to be difclofed, or probably exifting in the cafe, range themfelves to fill that outline, of the confiftence or inconfittene of testimony given, or to be giv en, with all the collateral circumstances which may come qut in evidence? If you are to far mafter of

your cafe, and you know how to digeft your materials into questions adapted to your purpose, and properly arranged, you may begin to examine. By this time, I think, you will be ready to confefs, that Í had good reafon for recommending to you to make yourself familiar with geometry. Without the habit of thinking logically or geometrically, you will feel that it is impoffible that you should acquire that facility and dexterity in framing and arranging your questions, which is ncceflary to enable you to

conduct

conduct an examination with effect.

"I will fuppofe you thus far qualified to enter upon this fort of bufinefs, and that you are to conduct an original examination, for the purpose of cftablifhing the facts of your cafe, out of which the right to be infifted upon on behalf of your client is to arife. Begin with lead ing your witness to the point from whence he is to fet out take care to keep him in his road; fee that he drops nothing by the way; if you find that he has left a chaf in his evidence, remember to put proper queftions to him to fill it up; if parts of his evidence thould require explanation, put him upon giving the proper explanations: your bufinefs will be to take care that your witnefs deliver a clear and a connected teftimony; and above all, to obferve that the thread of his narration be not broken; for then all will be confufion and thick darkness.

"As thefe rules are obferved or neglected, you will fee one advorate dexterously leading an ignorant witnefs into his fubject, and carrying him through a long examination in a clear and luminous order, without difficulty, or even hesitation on the part of the witnefs; and an other, after labouring for an hour to get him from the alehouse, the terin us a are of every vulgar narrator, finding himself entangled, the cart before the horse, unable to proceed, with all that has been faid perfectly unintelligible. I remember to have heard of a perfon in a judicial character, who was fo teized by the preflure of that fort of contufion, as to break out, after many vain efforts to difentangle himself into this exclamation ;"Either I am the dulleft fellow ever lived, or thou art the mot incomprehenfible rafcal I ever

heard!"-" I don't know how that may be," replied the witnefs, with a provoking ng froid, "but I was behind the tub, as I told you before." And after the explanation, the thing remained as inexplicable as before.

"Perhaps you are next to cross examine your adversary's witness. Cross-examination, in its proper fenfe, means fifting and trying tel timony given on the adverfe part. This is a very delicate operation; it requires a piercing eye, quick apprehenfion, great fagacity, and infinite addrefs. The advocate muft fee in an inftant, the whole effect of the teftimony which he is about to fift; its bearings upon every part of the cafe; his own cafe as well as that of his adversary; its strong and its weak places: he should know the mechanifm of the human mind; be able to trace the paffions through all their workings: he must be able to difcern the character of the witnefs, read his thoughts in his countenance, and anticipate them: an an able and judicious advocate, who has laid his foundation well, and is practifed in his business, and fufficiently inftructed by his brief, will generally catch all this, as it were, intuitively: but if he happens not to have fo clear and comprehenfive a view of every thing as he could with, he will carefully reconnoitre the ground before he attempts any attack: he will obferve two golden rules; he will never ask a queftion, without having a good reafon to align for asking it; and he will never hazard a critical question, without having good ground to believe that the answer must be in his favour.

"How often may a close observer of the business at Nifi Prius have feen facts an1 circumftances, which were effential to the adverfary's cafe,

and

and had been left fhort, or entirely forgot in the original examination, brought out or clenched by a fuperfluous or an unguarded cross-examination? I remember to have heard of an advocate of fome eminence who was very fubject to this infirmity of random cross-examination, and who when he had damned his client's caufe by an injudicious question, used to exclaim with great complacency; I thought foI am very glad the truth is come out having left himself nothing to do, but to fold up his brief and walk out of court.

"A judicious advocate, when he has difcovered in what part the witness is most vulnerable, will not be too eager to make his thruft in cross-examination: he will firft confider whether the blot in the teftimony be a proper fubject for cross-examination, or for obfervation upon the evidence; ufing it in the latter way, he has the advantage of taking it with all its imperfections; whereas the propofing a question upon it, puts the witnefs upon his guard, and enables him to introduce qualifications and explanations, and thereby to fet himself right, and to avoid the whole force of the obfervation, which in its original state, it was expofed to.

"Cross-examinations are not unfrequently used as the means of introducing obfervations and criticifm upon the evidence in the fhape of queftions to which no answer can be given, nor is any expected. This appears to me to be an irregular and a mifchievous practice; Loofe, misplaced, not fufficiently pointed, and too much detached; fuch obfervations feldom have any effect at the time, and they fail of their effect in the proper place, being benumbed by the dullness of repetition. .17896

"If these very loofe hints were at tended to, crofs-examinations would become always harmless, and might happen fometimes to be ufeful. They would certainly be very much re duced in their length; but I propofe to reduce them within a still narrower compass.

"By a ftrange abuse of cross-examination, the English bar are in the habit of examining the adverfary's witnefs to new matter, under the colour of cross-examining. I have a third golden rule, which will correct this very bad practice, never attempt to prove by your adverfary's witnefs, what you are prepared to prove by your own. There is a fort of triumph in forcing your adversary to prove your cafe, and so destroying him by his own evidence: but it very rarely happens, that the attempt fucceeds, and the failure, which will happen nine times in ten, is by no means a matter of indifference to your caufe. If the witnefs denies the fact you with him to prove, you are then to fet out with having your cafe denied upon oath, which you might have avoided: and if you hap pen to have but one witness on your part, you bring upon yourself the puzzle, which one witnefs against one neceffarily introduces: but your adverfary's witnefs may do worfe; he may admit your cafe and clog it with fuch circumftances as fhall render it of no ufe to you. Many a defence has been cut up by the roots in that way. Once in a thousand times good ufe may be made of an examination of this kind. The fact may be fo notorious, and fo capable of proof, and fo incapable of explanation, that to deny it, or to attempt to explain it, would blaft the witnefs's credit entirely; but this fo rarely happens, and the hazard of difclofing your cafe too G

foon

foon, and putting it in your adverfary's power to anticipate it, is fo great, that I adhere to my general rule. By way of illuftration, I will relate a circumftance which happened in the memorable cafe of the prosecution of a man of fashion, fome few years ago, for a rape. There was an application to the court of King's-Bench to admit the party accused to bail. Upon that occafion, fome of the leading circumstances of his defence were disclosed in an affidavit, which was laid before that court. The noble Judge who prefided in that court, and who fhould have been immortal, obferved, that the party accused must have great confidence in his innocence to venture to disclose fo much of his defence, before the trial. When the trial came on, the counfel for the prifoner had the mortification to find themselves ftripped of almoft the whole of their defence. All the circumstances which had been disclosed in the affidavit, were now interwoven into the profecutor's evidence, and made a part of the accufation. One of thofe circumstances was, that on the morning which fucceeded the fatal night, when the deed was done, the lady had made up, diftributed in the family, and herself worn wedding favours. This feemed a circumftance not to be explained by one who had complained of having been ravished. The lady in giving her evidence, after ftating the horrors of the night, threw into her narration, that they had had the cruelty and barbarity to add infult to difhonour, by compelling her to make up, diftribute, and wear their deteftable favours. In any view of this cafe, it was highly injudicious to difclofe fuch circumftances. If the party accufed was guilty of the crime imputed to him, these circum

ftances, whatever might be the complexion of them, must have been capable of explanation; and when explained, might be made confiftent with guilt. In which cafe, there could be no hope of deriving any advantage from them to the party accufed, but from their being firft difclofed at the trial; when, on the sudden, it might have been difficult to have given the explanation.

"If the party accufed was innocent, and there was a wicked combination to accufe him, would the confpirators hesitate to add more falfhoods to their falfe teftimony, by denying or proceeding yet more artfully and effectively, by anticipating, qualifying, and explaining away every thing which they were thus apprifed, was meant to be infifted upon, by way of defence.

"I have claimed for the English bar the undoubted right of fifting to the very bottom the teftimony of the most upright witneffes. I claim it for them upon this principle, that human teftimony is in its own nature uncertain. Philofophers doubt whether any two men perceive the fame object exactly in the fame manner. Moft undoubtly men of unqueftionable integrity very often perceive the fame object in very different manners. They must relate what they have perceived in very different manners. To which of two fuch witnefles are we to give implicit credit, because he is a man of unquestionable integrity? we must fift and try the teftimony of both by fuch tefts as collateral circumftances happen to furnish.

The neceflity of doing it in this cafe is apparent: but if two men of integrity may differ in their perceptions and confequently, in their testimony, it follows that every man of integrity may be mistaken;

and