Page images
PDF
EPUB

"he might as well guess now as at any other time."'16 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

16 Conkling, Bar of Central Illinois, Fergus Series, Vol. 22:45.

17 Tarbell, I., Abraham Lincoln, Vol. 1:241.

18 Conkling, Bar of Central Illinois, Fergus Series, Vol. 22:52.

19 Arnold, Illinois Bar, Vol. 8:9. 20 Roosevelt, T., Winning of the West, Vol. 6:21.

Lincoln more than any one else, convulsed his 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." "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." 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

21 Conkling, 22:53.

22 Tarbell, I., A. Lincoln, Vol. 1: 243.

23 Ibid, 1:244.

24 Ibid, 1:244.

25 Bacon, Bar of Oneida, pp. 9, 10. 26 Conkling, Fergus Series, Vol. 22:53.

27 Bacon, p. 11.

28 Arnold, Illinois Bar, Vol. 22:11.

other as "the theatre and concert hall of the older regions." Jokes, stories, songs, or even a violin, were brought into service to wear away the monotony of the court. The language of the court room even while in session was not the most refined. The following stories indicate the trend of the vocabulary used. One judge, when about to make his decision, was interrupted by the defense, who, well knowing that the judge was to decide against him, said that there was no precedent to warrant such a decision. The judge replied: "Damn it, I'll make one then." The remark that Lincoln may or may not have made that, "That may be pretty good Latin, but it's damn poor law," is indicative at least of what one should expect in a frontier court. In one instance in Oneida County, New York, the judge was about to dismiss court because of the cold. The people present suggested that he "take a pull" at the jug of whisky which had already kept all the others warm. He resisted for some time in an effort to sustain the dignity of the court, but finally reluctantly yielded. The jug was passed to him and the work of the court proceeded.30

While lawyers as a class pride themselves on their respect for law, on the frontier he frequently settled his private quarrels in rather irregular ways outside of court. Among the refined, the duel was the proper way of settling private differences. Among the less particular, and this included lawyers, politicians, and occasionally even judges, a street fight might be the extent to which the extreme frontier spirit went in an affair of honor. One writer states that: "Court week was the favorite time for persons to settle quarrels and the judge adjourned the court to allow lawyers and others, including his honor, to witness the fight. Judges rode to court armed to the teeth, carrying enormous looking knives which were freely used on the slightest provocation."'1 Men like Benton and Jack

29 Ibid, p. 12.

30 Bacon, pp. 8, 9.

31 Greenbag, 1906:586.

son had their share of tavern brawls,32 and it seems that in regions like Kentucky and Tennessee it was almost necessary to have this bluff spirit. Possibly conduct like the above should be confined to a very small part of the frontier, perhaps to the two states named.

age,

34

33

9937

The lawyer was the most successful man on the frontier. In politics he had absolute control. He held the best political positions; he was stump speaker and orator. The absence of the telegraph, telephone, press and railroads made him the educational agency of the times, for through him all information traveled. He was prosperous and versatile, entering any business where money could be made. The finest and the largest houses, as those of brick, inevitably belonged to the lawyer.35 In society the lawyer stood at the top.36 Yet the success of the frontier lawyer is attributed not so much to his knowledge of law as to his "push, pluck, audacity and personal courThe spirit of the West made him what he was. Some space must be devoted to the most typical of frontier lawyers, Abraham Lincoln. He was storekeeper, student, postmaster, surveyor, politician and lawyer. He studied law at home from the books he borrowed from Major Stuart. His advice to those who would learn law is simple: "Get books and read and study them carefully. Begin with Blackstone's Commentaries and after reading them through, say twice, take Chitty's Pleadings, Greenleaf's Evidence, and Story's Equity in succession. Work, work, work, is the main thing." He first learned to write legal forms from a text book. Once while working in the field, he was called upon by a neighbor to write a deed. Sitting on a stump and writing against a shingle he wrote the

82 Ibid, 1906:586.

83 Thwaites' Travels, Intro., Vol. 4:11.

34 Michaux's Travels, Thwaites' Travels, Vol. 3:228.

85 Cummings, Thwaites' Travels, Vol. 4:222.

36 Flint, Thwaites' Travels, Vol. 9:195.

37 Greenbag, 1906:586.

38 Tarbell, I., Abraham Lincoln,

Vol. 1:109, 110.

deed in true frontier style. He tried hard to get the liberal education which the New England college gave, and spent all his odd moments studying classic literature and history.

His behavior in court, his jokes, stories and wit are typical of the period. In 1848, when traveling on the circuit of Judge Davis, he was repeatedly told to keep quiet. On one occasion Judge Davis remarked: "Come, come, Mr. Lincoln, I can't stand this. There is no use to carry on two courts. I must adjourn mine or you yours, and I think you will have to be the one. 9939 At another time Lincoln told the clerk a funny story, so funny that the clerk laughed aloud. The judge fined the clerk five dollars for contempt and told Lincoln to "shut up." The clerk responded that the story was worth five dollars. This aroused the curiosity of the judge and he asked the clerk to relate the story, which he did. The judge himself laughed aloud, so he promptly remitted the fine of the clerk. Such was the easy, free and rambling manner in which the frontier court was conducted. It was bound by no traditions, for the frontier had no traditions.

Travelers and writers tell us that the amount of litigation on the frontier was enormous.41 One writer declares that: "The uncertainty of land title gives expensive and inexhaustible lawsuits which enrich professional men.""42 The same is true of the law concerning water power and water rights. Both these branches of the law are now more or less settled. The comments on the amount of litigation are so frequent that it probably must be accepted as a fact that the frontier had more legal disputes than one should expect in a thinly populated region. It naturally follows that the proportion of lawyers on the frontier was greater than in the older regions. Added to this is the confirming fact that the frontier lawyer followed many other profes

39 Ibid, 1:244-6.

40 Ibid, 1:246.

41 Thwaites' Travels, Faux, 12:24,

61, also Cummings, 4:349.

42 Thwaites' Travels, Michaux's Travels, Vol. 3:228.

« PreviousContinue »