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of the southern lawyer was very limited, and he was therefore the more typical frontier lawyer. The northern lawyer, on the other hand, was usually a graduate of some eastern college, having in addition a far more regular legal training. If the southern lawyer had a liberal education previous to his legal, it was probably received in some northern college. So today our northern colleges and universities are filled with southern students though the reverse is quite unheard of. The training of the southern lawyer was more irregular, so that he, rather than the lawyer from the northern States, should lay claim to the title "The Lawyer on the Frontier." The northern lawyer lacked the frontier western spirit, failing to win western juries even where they had the better side of the case,8 while a rugged and robust type like Lincoln or Douglass could readily lead a frontier jury to sympathize with them.6
James Bryce in his introduction to the American Commonwealth, says of the foreigner: "He is struck by certain things which a native does not think of explaining, because they are too obvious."7 For this reason the impressions of several foreigners who in their travels saw the frontier lawyer in action, may be interesting. Wood draws the following picture of the frontier court:8 "No particular dress was worn. As the heat was great, one of counsel took off his coat and pleaded without it. Although no wigs or black gowns were worn, there was no end of quirks and quibbles than in Westminster Hall." He admitted that "while not so polite as you," they were "not devoid of eloquence." Another writes that the lawyers were "easy and colloquial" but "not distinguished." He remarked further that he saw one judge with three other "dirty looking associates" who were dressed in coarse homespun
5 Arnold, Chicago and Illinois T Bryce, J., American Common- * Bar. Fergus Hist. Series, 22:14. wealth, Vol. 1:8. oIbid, 22:20'. s Wood's Eng. Prairie, Thwaltes'
Travels, Vol. 10:355.
VOL. L. 3
garments, much like the low fen farmers of England. Everything was free and easy, the clothes were shabby, and almost all in court chewed tobacco freely.8 Later a particular lawyer shocked him by removing his waistcoat, though he admitted that these "coarse, dirty judges compared well with the English, showing a great desire to take up law."10 Another traveler facetiously remarks that "if we may judge from the grammatical and orthographic inaccuracies, they may be lawyers but not scholars."11 Harsh as the above comments may be, they represent a good picture of the informality of the frontier.
The education of the frontier lawyer, and this is almost true of all lawyers seventy-five or more years ago, shows a strange contrast with present requirements. The New England lawyer had- a college education, followed by teaching school and reading law a few years. The typical frontier lawyer seldom had a college preparation, having to content himself with what the frontier offered. But he too studied law while teaching school. The studying of law was often carried on under the direction of lawyers in their office, or just as often at home from a few classical text-books. To become a lawyer was a comparatively simple matter. There was either no bar examination or the examination was a mere formality, although it did pretend to be more than that. A library might consist of a few classical texts. The practical part of the law office probably was more important than anything else. Flint observed that Blackstone Commentaries was considered the great medium of instruction. Prospective lawyers read Blackstone carefully, wrote a short time for a practicing lawyer, and were then admitted to the bar, although the admission to the bar was often dispensed with.12 In addition to Blackstone, the conscientious lawyer might read a
s Faux's Journal, Thwaites' Trav- n Flint's Letters, Thwaites' Travels, Vol. 11:59,75. els, Vol. 9:195. is Ibid, 12:45. "Flint's Letters from Amer.,
Thwaites' Travels, Vol. 9:195.
few other classical texts. Principles of law, rather than precedents were emphasized. Flint wrote: "The profession owes much of its respectability to the ingress of young gentlemen of liberal education from the Atlantic States, who research in the history of cases, who have good libraries."13 Frontier lawyers like Lincoln complained of their lack of a classical education and strove hard to acquire it by constant study at home. Compare with this scanty preparation the present piling up of decisions and statutes in forty-eight States with the necessity of a huge library, the strict requirements of the law schools, and the State bar examination with its thirty or more subjects.
No man was more versatile than the frontier lawyer. He was not only a lawyer, but a dabbler in almost every other profession. Perhaps there was too little legal business for the number of lawyers. Then too a more complex civilization permits of greater specialization in a profession. At any rate, a lawyer might be a real estate man, a surveyor, a teacher, a storekeeper, a horse dealer, a land speculator, or almost anything and everything else. Besides any one or more of these he was always a politician. Law and politics went hand in hand. Many accounts tell us that the lawyer filled all the "respectable government offices,"" one writer saying "by intrigue." This was true at least of William Foster, a great rascal, who, in 1818, entered the State of Illinois, and, after living there three weeks, so manipulated the Legislature that he was elected associate judge of the Supreme Court. He never studied law, never took his seat, drew one year's salary and resigned. The rest of his life was continuel in swindling the unwary.13 Another instance of an incompetent man holding office was that of Judge Browne of Illinois. Once at the close of a trial he told counsel that he wanted to deliberate the case, whereupon the counsel for the defense rose and told him
"he might as well guess now as at any other time."18 Frontier history is filled with accounts of unfit men electioneering themselves into judicial positions. Whether the versatility of the lawyer was caused by the superior attractions of other professions or by the impossibility of the legal practice supporting so large a number of lawyers, is easier asked than answered.
No account of the lawyer on the frontier would be complete without mentioning the circuit practice, surviving today principally in name. The territory being sparsely settled the circuits were necessarily very large. Lincoln traveled on a circuit embracing one-third of Illinois,17 while today there are many more circuits in Chicago alone. The judge traveled from one place to another at short intervals, often accompanied by lawyers and witnesses. If a lawyer.was particularly capable he might accompany the judge on the whole circuit, trying cases in every town the court sat. The traveling on the circuit was by horseback, coach, carriage, or, if the lawyer were young and poor, he might walk. The roads were very poor. Often one would ride twelve or fifteen miles through rivers and across open prairies before reaching a farm house.18 It was a common experience of circuit riding for the stage to break down while crossing a ford, compelling all the occupants, court and counsel, to do the undignified act of wading ashore.19 In 1794 Tennessee judges were accompanied by a military guard for protection against Indians.20 In riding the circuit, there was a continual exchange of jokes and stories. The judge and lawyers forgot for the time being their legal difficulties and relaxed, often to the coarsest humor. The greatest possible freedom and unrestraint made pass pleasantly what must otherwise have been monotonously long hours. It is hardly necessary to say that on such occasions
in Conkling, Bar of Central Illi- is Conkling, Bar of Central Illinois, Fergus Series, Vol. 22:45. nois, Fergus Series, Vol. 22:52.
17 Tarbell, I., Abraham Lincoin, is Arnold, Illinois Bar, Vol. 8:9. Vol. 1:241. 2o Roosevelt, T., Winning of the
West, Vol. 6:21.
Lincoln more than any one else, convulsed Ms hearers by his witty and homely remarks on the most commonplace subjects.
On reaching town they all stopped at the same inn. Accommodations were not of the best, for they would sleep on hard beds or on the floor. The "rooms were crowded with jurors, witnesses, parties litigant and others, who came to' attend court as a horse race, circus or theatrical performance."21 "Ordinarily, judge and lawyer slept two in a bed with three or four beds to a room.' '22 At meals the judge, witnesses, prisoners out on bail, traveling peddlers, teamsters and laborers, all sat at the same table.23 The landlord classified boarders by putting lawyers at the head of the table. Lincoln once got in the wrong place, the "fourth estate." When the landlord told him of his mistake, Lincoln asked: "Have you anything better to eat up there? If not, I'll stay here."24 The court house might be a well built log house. But where such a luxury as a separate and special building did not exist, court might be held in a barn as in Oneida County, New York, or as later in a schoolhouse ;25 or as in Illinois in a saloon building of two rooms, one containing the bar where ale, and the other the bar where justice was dispensed.26 In Oneida County the court opened with a prayer.27 Isaac Arnold describes the court as follows: "The judge usually sat upon a raised platform with a pine or white board on which to write his notes. A small table was on one side for the clerk and a large one on the other, sometimes covered with green baize, around which were grouped lawyers, too often, I must admit, with their feet on top of it."28 A continual flow of wit, humor and repartee made the court room exceedingly informal. One writer characterized the court as "one of the chief amusements of frontier settlements," an
?i Conkling, 22:53. 25 Bacon, Bar of Oneida, pp. 9, 10.
"Tarbell, I., A. Lincoin, Vol. 1: 20 Conkling, Fergus Series, Vol.
"Ibid, 1:244. 2r Bacon, p. 11.
-4Ibid, 1:244. 28 Arnold, Illinois Bar, Vol. 22:11.