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law. But you will say we have lynch law today. Yes, but such regions so out of the grasp and control of the government that lynch law prevails, are frontier areas for the time being. A lynching territory is essentially a temporary frontier, being outside the pale of law. There is a distinction to be kept in mind in regard to lynching today, namely, that the acts of the citizens themselves have created this temporary unnatural frontier by illegally ousting the existing government. Lynch law as a frontier law is absolutely necessary. It is self-protection. Lynch law today is justified by some who maintain that the government has neglected to govern when it fails to punish many atrocious crimes. The people become impatient with the technical and too regular practice of our courts, confusing occasional failure of justice with an absence of justice. Because the government seems to have failed, the people unite irregularly to accomplish what they feel the government should have done. Justifiable lynch law can exist only on the frontier. With the advent of the lawyer it must disappear, for he looks with abhorrence on all forms of swift and certain, though dangerous and irregular, justice.
Following very closely on lynch law, and in many cases existing along with it, a court system gradually developed, though for some time still without the presence of the lawyer. The first judges of Herkimer Common Please (1793), Oneida, New York, were three "fair-minded, intelligent and upright laymen.” At this time we have the territorial judge, appointed by the Governor or some military leader. Judge Reaume, for example, is said to have been the first judge in Wisconsin, holding the position from 1803 till after the War of 1812. He was commissioned by Governor Harrison over what was then Indian Territory. Judge Reaume is typical of the legal ability exhibited or
1 Bacon, Bar of Oneida, page 9.
2 Thwaites, R., Stories of Badger State, 106-9.
not exhibited on the frontier, and therefore warrants some attention. We are assured that Judge Reaume owned a volume of Blackstone, but this may well be doubted if we are to judge from his decisions. He understood and applied 'the “Law of Paris,” and based his decisions on “right” regardless of the technicalities of the law. How he applied the Common Law of Blackstone, the Civil Law of Paris, and the principles of “right and wrong," all at the same time, is rather difficult to understand. He used few writs, warrants or subpoenas; his large jack-knife, sent by a special messenger, served as a more effective substitute in bringing witnesses and parties to court. He married and divorced people; he drew up contracts and registered wills; he was judge and he was jury; in fact, he was the judicial system of the territory, continuing to hold office because no one was sent to succeed him. It is more than a tradition that Judge Reaume often made both parties pay the fine, that a bottle of whisky would win a case, and that he once reversed himself on being presented with a teapot. Whether true or not, these stories are indicative of the crude form the frontier court took, and they illustrate that principles of right and wrong controlled rather than any system of jurisprudence. With the lawyer came the technicalities of the law, though even in the first decade of his residence on the frontier, justice still depended on common-sense principles rather than on any finespun distinctions.
After the hunter and trapper had left a region, at the time that the half-farmer half-hunter type was leaving and the permanent more intensive farmer entered the frontier, the lawyer appeared. When the frontier reached the stage where well established settlements were made, it was necessary for law and the lawyer to step in.
The position of the lawyer was for some time equivocal. The people on the frontier were a plain, simple straightforward, common-sense folk, looking to the courts for a “justice” which would accord with their own ideas of moral justice. Naturally enough the lawyer with his hair-splitting distinctions was first looked upon with much of that suspicion which surrounds him even now, though in a lesser degree perhaps, and for different reasons. To them the lawyer was a shrewd man who prevented rather than produced justice. The resulting friction between the lawyer and this democratic plain-spoken people is shown in the laws of the frontier legislative bodies. Virginia in 1645 undertook to discourage lawyers by forbidding the taking of fees; Massachusetts in 1663 excluded lawyers from membership in the Great and General Court, and the fundamental Constitution of Georgia declared it a “base and vile" thing to plead for money, prohibiting any one but a near kinsman to plead their cause, and forcing such a person to take oath that he had received no money therefor. Plymouth by an ordinance of July 7, 1681, regulated the fee to five shillings per day, and two and one-half shillings per case if he had two cases in one day. An act of the territory of Utah approved February 18, 1852 reads: “No person or persons, employing counsel in any of the courts of this territory, shall be compelled by any process of law to pay the counsel so employed, for any services rendered as counsel, before or after or during the process of trial in the case.” One author in describing early New England lawyers goes so far as to say that they are not respected, being suspected of “trick and chicanery." Ex-President Roosevelt in his “Winning of the West,” speaking of Kentucky says: “The exclusion of the lawyers from law-making bodies was one of the darling plans of the ordinary sincere rural demagogue of the day.''4 This universal distrust and prejudice against the lawyer has been overcome to a considerable extent, though it is by no means extinct. Any unpopular decision is sure to arouse the condemnation of bench and bar. The recall of judges and of judicial decisions-almost dead issues already—was the latest indication of this distrust among the people, caused of course by their inability to appreciate legal reasoning, and their willingness at the instigation of demagogues to throw on the courts and the lawyer the criticism that should fall elsewhere.
The frontier state and the march of the frontier state westward decade by decade are apparent on even a cursory examination of the census returns. Livingston's Law Registers show the same movement westward by the lawyer. The register for 1868 shows returns of lawyers for States which in 1852 had not reached the “lawyer-frontier” stage. In the very same way every industry moved westward, each succeeding stage having more of the complexities of civilization than the preceding. This whole movement disappeared in the Rockies where the march from east and west coalesced.
In his course westward the lawyer followed for the most part the same parallels of latitude. The lawyer from the south moved through Kentucky and Tennessee into the southern parts of Ohio, Indiana and Illinois, the lawyer from New England, coming a little later, went directly west into the northern parts of these three States. Not only the lawyer but all movements of population followed these same lines in these same States. The result is that even today Ohio, Indiana and Illinois have mixed institutions of North and South. This might be illustrated with many examples, but we here are interested in the lawyer and we shall confine our study to him, and especially to the State of Illinois where the evidence is most abundant. In looking over the biographies of Illinois lawyers we find that almost uniformly the lawyers in the southern part are from Kentucky, and those in the northern part from New England. The southern lawyer was apt to migrate by easy stages, while the northern lawyer would come more often from extreme east to the remotest frontier. The education
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, while a rugged and robust type like Lincoln or Douglass could readily lead a frontier jury to sympathize with them.
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 Bar, Fergus Hist. Series, 22:14.
6 Ibid, 22:20.
7 Bryce, J., American Commonwealth, Vol. 1:8.
8 Wood's Eng. Prairie, Thwaites' Travels, Vol. 10:355.