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other as "the theatre and concert hall of the older regions."29 Jokes, stories, songs, or even a violin, were Drought 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."31 Men like Benton and Jack
son had their share of tavern brawls,3- 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.
The lawyer was the most successful man on the frontier.33 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 prosperous34 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 courage,"37 The 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."38 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
"Ibid. 1906:586. 3s Flint, Thwaites' Travels, Vol.
"Thwaites' Travels, Intro., Vol. 9:195.
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 twocourts. I must adjourn mine or you yours, and I think you will have to be the one."39 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.40 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 thinty 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
sions, although this is true, though in a lesser degree, of all lawyers. A comparison of Livingston's Law Registers for 1852 and 1868 with the census lists of 1850 and 1870 shows that the older states had one lawyer per 1000 and as low as one lawyer for every 2000 inhabitants, while the frontier states show ratios varying from three to 2000 to as high as three or six to 1000, the number per 1000 increasing with the newness of the frontier. States which in 1852 showed a high percentage of lawyers per population, in 1868 showed a great reduction, these states having in the meantime passed through the frontier stage. Possibly the litigation on land and water rights, possibly the "wanderlust," the "Call of the West," caused this large influx of lawyers. That the law could not support this excess proportion of lawyers is shown by the fact that they entered so many other professions. It was only after the frontier community grew older that the number of lawyers adjusted itself to the real needs of the community.
In conclusion it would be well to point out a few differences between the frontier lawyer and the lawyer of today. The reader must have already called up in his mind a great many differences. Dos Passos in his interesting book on the "American Lawyer" makes a distinction between the past and present lawyer, which I will quote, for it is equally applicable to the frontier and present lawyer. The present lawyer "has no less brains, no less natural intellect; and he is a better business man withal than the lawyer of yore. Simply he is armed with different weapons. Eeal eloquence and knowledge of sound elementary law have almost disappeared, and the lawyer is burdened by the incubus of form, statutes, codes. Codification has aided dishonest clients, for trickery, cunning and pettifogging are more pronounced and visible."43 The frontier library, yes the law library of fifty years ago, was small, so the principles of law were studied from a few classical texts. To
43 Dos Passos, American Lawyer, p. 23.
day we have mammoth libraries, and we study law by the case method by selections made from thousands of reports. As a foundation for law we study literature, history, political science and economics, while on the frontier such a training was exceptional. The frontier had, however, what no education could give, a certain sympathy with the spirit of the frontier. This failure to appreciate the frontier feeling accounts for the inability of the New England lawyer to handle a western jury with the same success that the frontier lawyer did. On the other hand, the successful frontier lawyer failed in the east, and as an example I point to Abraham Lincoln, whose first appearance in the east was a great disappointment. Each lawyer, the eastern and western, had his own sphere in which he was supreme. When either left his own sphere, he failed, until he imbibed the spirit of the new environment, be it east or west. The "Lawyer on the Frontier" is a distinct type.
Raymond T. Zillmer.