Joseph G. Baldwin, THE FLUSH TIMES OF ALABAMA AND MISSISSIPPI A Series of
Sketches (1853)
THE BAR OF THE SOUTH-WEST
There is no greater error than that which assigns inferiority to the bar of the
South-West, in comparison with that of any other section of the same extent in the United
States. Indeed, it is our honest conviction that the profession in the States of
Tennessee, Alabama, Mississippi and Louisiana, are not equalled, as a whole, by the same
number of lawyers in any other quarter of the Union,--certainly in no other quarter where
commerce is no more various and largely pursued.
* * *
It is a remarkable fact, that the great men of every State in the Union, were those men
who figured about the time of the organization and the settling down of their several
judicial systems into definite shape and character. Not taking into the account the
Revolutionary era--unquestionably the most brilliant intellectual period of our
history--let us look to that period which succeeded the turmoil, embarrassment and
confusion of the Revolution, and of the times of civil agitation and contention next
following, and out of which arose our present constitution. The first thing our fathers
did was to get a country; then to fix on it the character of government it was to have;
then to make laws to carry it on and achieve its objects. The men, as a class, who did all
this, were lawyers: their labors in founding and starting into motion our constitutions
and laws were great and praiseworthy: but after setting the government agoing, there was
much more to do; and this was to give the right direction and impress to its
jurisprudence. The Statutes of a free country are usually but a small part of the body of
its law--and the common law of England, itself but a judicial enlargement and adaptation
of certain vague and rude principles of jurisprudence to new wants, new necessities and
exigencies, was a light rather than a guide, to the judges of our new systems, called to
administer justice under new and widely different conditions and circumstances. The
greatest talent was necessary for these new duties. It required the nicest discrimination
and the soundest judgment to determine what parts of the British system were opposed to
the genius of the new constitution, and what parts were inapplicable by reason of new
relations or differing circumstances. The great judicial era of the United States--equally
great in bar and bench--was the first quarter of this century. And it is a singular
coincidence that this was the case in nearly every, if not in every, State. Those were the
days of Marshall and Story and Parsons, of Kent and Thompson and Roane, of Smith and Wythe
and Jay, and many other fixed planets of the judicial system, while the whole horizon, in
every part of the extended cycle, was lit up by stars worthy to revolve around and add
light to such luminaries. Mr. Webster declared that the ablest competition he had met
with, in his long professional career, was that he encountered at the rude provincial bar
of back-woods New Hampshire in his earlier practice.
And this same remarkable preëminence has characterized the bar of every new State
when, or shortly after emerging from, its territorial condition and first crude
organization; the States of Tennessee, Kentucky, Alabama, Mississippi and Louisiana
forcibly illustrate this truth, and we have no question but that Texas and California are
affording new expositions of its correctness.
A fact so uniform in its existence, must have some solid principle for its cause. This
principle we shall seek to ascertain. It is the same influence, in a modified form, which
partly discovers and partly creates great men in times of revolution. Men are fit for more
and higher uses than they are commonly put to. The idea that genius is self-conscious of
its powers, and that men naturally fall into the position for which they are fitted, we
regard as by no means an universal truth, if any truth at all. Who believes that
Washington ever dreamed of his capacity for the great mission he so nobly accomplished,
before with fear and trembling, he started out on its fulfilment? Probably the very ordeal
through which he passed to greatness purified and qualified him for the self-denial and
self-conquest, the patience and the fortitude, which made its crowning glory. To be great,
there must be a great work to be done. * * *
In a new country the political edifice, like all the rest, must be built from the
ground up. Where nothing is at hand, everything must be made. There is work for all and a
necessity for all to work. There is almost perfect equality. All have an even start and an
equal chance. There are few or no factitious advantages. The rewards of labor and skill
are not only certain to come, but they are certain to come at once. There is no long and
tedious novitiate. Talent and energy are not put in quarantine, and there is no privileged
inspector to place his imprimatur of acceptance or rejection upon them. An emigrant
community is necessarily a practical community; wants come before luxuries--things take
precedence of words; the necessaries that support life precede the arts and elegancies
that embellish it . * * *
And where can a man get this self-reliance so well as in a new country, where he is
thrown upon his own resources; where his only friends are his talents; where he sees
energy leap at once into prominence; where those only are above him whose talents are
above his; where there is no prestige of rank, or ancestry, or wealth, or past
reputation--and no family influence, or dependants, or patrons; where the stranger of
yesterday is the man of mark to-day; where a single speech may win position, to be lost by
a failure the day following; and where amidst a host of competitors in an open field of
rivalry, every man of the same profession enters the course with a race-horse emulation,
to win the prize which is glittering within sight of the rivals. There is no stopping in
such a crowd: he who does not go ahead is run over and trodden down. How much of success
waits on opportunity! True, the highest energy may make opportunity; but how much of real
talent is associated only with that energy which appropriates, but which is not able to
create, occasions for its display. Does any one doubt that if Daniel Webster had accepted
the $1,500 clerkship in New Hampshire, he would not have been Secretary of
State? Or if Henry Clay had been so unfortunate as to realize his early aspirations of
earning in some backwoods county his $333 33 per annum, is it so clear that Senates would
have hung upon his lips, or Supreme Courts been enlightened by his wisdom?
* * *
Unquestionably there is something in the atmosphere of a new people which refreshes,
vivifies and vitalizes thought, and gives freedom, range and energy to action: It is the
natural effect of the law of liberty. An old society weaves a network of restraints and
habits around a man; the chains of habitude and mode and fashion fetter him: he is cramped
by influence, prejudice, custom, opinion; he lives under a feeling of surveilance
and under a sense of espionage. He takes the law from those above him. Wealth,
family, influence, class, caste, fashion, coterie and adventitious circumstances of all
sorts, in a greater or less degree, trammel him; he acts not so much from his own will and
in his own way, as from the force of these arbitrary influences; his thoughts and actions
do not leap out directly from their only legitimate head-spring, but flow feebly in
serpentine and impeded currents, through and around all these impediments. The character
necessarily becomes, in some sort, artificial and conventional; less bold, simple, direct,
earnest and natural, and, therefore, less effective.
What a man does well he must do with freedom. He can no more speak in trammels than he
can walk in chains; and he must learn to think freely before he can speak freely. He must
have his audience in his mind before he has it in his eye. He must hold his eyes level
upon the court or jury--not raised in reverence nor cast down in fear. * * * To illustrate
what we mean--let us take the case of a young lawyer just come to the bar of an old State.
Let us suppose that he has a case to argue. He is a young man of talent, of course--all
are. Who make his audience? The old judge, who, however mild a mannered man he may be, the
youth has looked on, from his childhood, as the most awful of all the sons of men. Who
else? The old seniors whom he has been accustomed to regard as the ablest and wisest
lawyers in the world, and the most terrible satirists that ever snapped sinews and
dislocated joints and laid bare nerves on the rack of their merciless wit. The jury of
sober-sided old codgers, who have known him from a little boy, and have never looked on
him except as a boy, most imprudently diverted by parental vanity from the bellows or the
plough-handles, to be fixed as a cannister to the dog's tail that fag-ends the bar:--that
jury look upon him,--as he rises stammering and floundering about, like a badly-trained
pointer, running in several directions, seeking to strike the cold trail of an idea that
had run through his brain in the enthusiasm of ambitious conception the night
before:--these, his judges, look at him or from him with mingled pity and wonder; his
fellow-students draw back from fear of being brought into misprision and complicity of
getting him into this insane presumption; and, after a few awkward attempts to propitiate
the senior, who is to follow him, he catches a view of the countenances of the old fogies
in whose quiet sneers he reads his death-warrant; and, at length, he takes his seat, as
the crowd rush up to the veteran who is to do him--like a Spanish rabble to an auto
da fe. What are his feelings? What or who can describe his mortification? What a
vastation of pride and self-esteem that was? The speech he made was not the speech he had
conceived. The speech he had in him he did not deliver; he "aborted" it,
and, instead of the anticipated pride and joy of maternity, he feels only the guilt and
the shame of infanticide.
* * *
But suppose the debutant does better than this; suppose he lets himself out fully and
fearlessly, and has something in him to let out; and suppose he escapes the other
danger of being ruined by presumption, real or supposed; he is duly
complimented:--"he is a young man of promise--there is some 'come out' to that young
man; some day he will be something--if--if" two or three peradventures don't happen
to him. If he is proud,--as to be able to have accomplished all this he must be,--such
compliments grate more harshly than censure. He goes back to the office; but where are the
clients? They are a slow-moving race, and confidence in a young lawyer "is a plant of
slow growth."
* * *
In the new country, there are no seniors: the bar is all Young America. If the old
fogies come in, they must stand in the class with the rest, if, indeed, they do not
"go foot." There were many evils and disadvantages arising from this want of
standards and authority in and over the bar--many and great--but they were not of long
continuance, and were more than counterbalanced by opposite benefits.
* * *
In trying to arrive at the character of South-Western bar, its opportunities and
advantages for improvement are to be considered. It is not too much to say that, in the
United States at least, no bar ever had such, or so many: it might be doubted if they were
ever enjoyed to the same extent before. Consider that the South-West was the focus
of an emigration greater than any portion of the country ever attracted, at least, until
the golden magnet drew its thousands to the Pacific coast. But the character of emigrants
was not the same. Most of the gold-seekers were mere gold-diggers--not bringing property,
but coming to take it away. Most of those coming to the South-West brought property--many
of them a great deal. Nearly every man was a speculator; at any rate, a trader. The
treaties with the Indians had brought large portions of the States of Alabama, Mississippi
and Louisiana into market; and these portions, comprising some of the most fertile lands
in the world, were settled up in a hurry. The Indians claimed lands under these
treaties--the laws granting preemption rights to settlers on the public lands, were to be
construed, and the litigation growing out of them settled, the public lands afforded a
field for unlimited speculation, and combinations of purchasers, partnerships, land
companies, agencies, and the like, gave occasion to much difficult litigation in after
times. Negroes were brought into the country in large numbers and sold mostly upon credit,
and bills of exchange taken for the price; the negroes in many instances were
unsound--some as to which there was no title; some falsely pretended to be unsound, and
various questions as to the liability of parties on the warranties and the bills,
furnished an important addition to the litigation: many land titles were defective;
property was brought from other States clogged with trusts, limitations, and uses, to be
construed according to the laws of the State from which it was brought: claims and
contracts made elsewhere to be enforced here: universal indebtedness, which the hardness
of the times succeeding made it impossible for many men to pay, and desirable for all to
escape paying: hard and ruinous bargains, securityships, judicial sales; a general
looseness, ignorance, and carelessness in the public officers in doing business; new
statues to be construed; official liabilities, especially those of sheriffs, to be
enforced; banks, the laws governing their contracts, proceedings against them for
forfeiture of charter; trials of right of property; and elegant assortment of frauds
constructive and actual; and the whole system of chancery law, admiralty proceedings; in
short, all the flood-gates of litigation were opened and the pent-up tide let loose upon
the country. And such a criminal docket! What country could boast more largely of its
crimes? What more splendid rôle of felonies! What more terrific murders! What more
gorgeous bank robberies! What more magnificent operations in the land offices! Such
McGregor-like levies of black mail, individual and corporate! Such superb forays on the
treasuries, State and National! Such expert transfers of balances to undiscovered bournes!
Such august defalcations! Such flourishes of rhetoric on ledgers auspicious of gold which
had departed for ever from the vault! And in INDIAN affairs!--the very mention is
suggestive of the poetry of theft--the romance of a wild and weird larceny! What sublime
conceptions of super-Spartan roguery! Swindling Indians by the nation! (Spirit of
Falstaff, rap!) Stealing their land by the township! (Dick Turpin and Jonathan
Wild! tip the table!) Conducting the nation to the Mississippi river, stripping them
to the flap, and bidding them God speed as they went howling into the Western wilderness
to the friendly agency of some sheltering Suggs duly empowered to receive their coming
annuities and back rations! What's Hounslow heath to this? Who Carvajal? Who Count
Boulbon?
And all of these merely forerunners, ushering in the Millenium of an accredited,
official Repudiation; and It but vaguely suggestive of what men could do when opportunity
and capacity met--as shortly afterwards they did--under the Upas-shade of a
perjury-breathing bankrupt law!--But we forbear. The contemplation of such hyperboles of
mendacity stretches the imagination to a dangerous tension. There was no end to the amount
and variety of lawsuits, and interests involved in every complication and of enormous
value were to be adjudicated. The lawyers were compelled to work, and were forced to learn
the rules that were involved in all this litigation.
Many members of the bar, of standing and character, from the other States, flocked in
to put their sickles into this abundant harvest. Virginia, Kentucky, North Carolina and
Tennessee contributed more of these than any other four States; but every State had its
representatives.
Consider, too, that the country was not so new as the practice. Every State has its
peculiar tone or physiognomy, so to speak, of jurisprudence imparted to it, more or less,
by the character and temper of its bar. That had yet to be given. Many questions decided
in older States, and differently decided in different States, were to be settled here; and
a new state of things, peculiar in their nature, called for new rules or a modification of
old ones. The members of the bar from different States had brought their various notions,
impressions and knowledge of their own judicature along with them; and thus all the
points, dicta, rulings, off-shoots, quirks and quiddities of all the law, and lawing, and
law-mooting of all the various judicatories and their satellites, were imported in the new
country and tried on the new jurisprudence.
After the crash came in 1837--(there were some premonitory fits before, but then
the great convulsion came on)--all the assets of the country were marshalled, and
the suing material of all sorts, as fast as it could be got out, put into the hands of the
workmen. Some idea of the business may be got from a fact or two: in the county of
Sumpter, Alabama, in one year, some four or five thousand suits, in the common-law courts
alone, were brought; but in some other counties the number was larger; while in the lower
or river counties of Mississippi, the number was at least double. The United States Courts
were equally well patronized in proportion--indeed, rather more so. The white suable
population of Sumpter was then some 2,400 men. It was a merry time for us craftsmen; and
we brightened up mightily, and shook our quills joyously, like goslings in the midst of a
shower. We look back to that good time, "now past and gone," with the pious
gratitude and serene satisfaction with which the wreckers near the Florida Keys
contemplate the last fine storm.
It was a pleasant sight to professional eyes to see a whole people let go all holds and
meaner business, and move off to court, like the Californians and Australians to the
mines: the "pockets" were picked in both cases. As law and lawing soon got to be
the staple productions of the country, the people, as a whole the most intelligent--in the
wealthy counties--of the rural population of the United States, and, as a part, the keenest
in all creation, got very well "up to trap" in law matters; indeed, they soon
knew more about the delicate mysteries of the law, than it behooves an honest man to know.
The necessity for labor and the habit of taking difficulties by the horns is a
wonderful help to a man; no one knows what he can accomplish until he tries his best; or
how firmly he can stand on his own legs when he has no one to lean on.
The range of practice was large. The lawyer had to practise in all sorts of courts,
State and Federal, inferior and Supreme. He had the bringing up of a lawsuit, from its
birth in the writ to its grave in the sheriff's docket. Even when not concerned in his own
business, his observation was employed in seeing the business of others going on; and the
general excitement on the subject of law and litigation, taking the place in the partial
suspension of other business, of other excitements, supplied the usual topics of general,
and, more especially, of professional conversation. If he followed the circuit, he was
always in law: the temple of Themis, like that of Janus in war, was always open.
The bar of every country is, in some sort, a representative of the character of the
people of which it is so important an "institution." We have partly shown what
this character was: after the great Law revival had set in, the public mind had got to be
as acute, excited, inquisitive on the subject of law, as that of Tennessee or Kentucky on
politics: every man knew a little and many a great deal on the subject. The people soon
began to find out the capacity and calibre of the lawyers. Besides, the multitude and
variety of lawsuits produced their necessary effect. The talents of the lawyers soon
adapted themselves to the nature and exigencies of the service required of them, and to
the tone and temper of the juries and public. Law had got to be an every-day, practical,
common-place, business-like affair, and it had to be conducted in the same spirit on
analogous principles. Readiness, precision, plainness, pertinency, knowledge of law, and a
short-hand method of getting at and getting through with a case, were the characteristics
and desiderata of the profession. There was no time for wasting words, or for maneuvering
and skirmishing about a suit; there was no patience to be expended on exordiums and
perorations: few jurors were to be humbugged by demagogical appeals; and the audience were
more concerned to know what was to become of the negroes in suit, than to see the flights
of an ambitious rhetoric, or to have their ears fed with vain repetitions, mock
sentimentality, or tumid platitudes. To start in medias res--to drive at the
centre--to make the home-thrust--to grasp the hinging point--to give out and prove the
law, and to reason strongly on the facts--to wrestle with the subject Indian-hug
fashion--to speak in plain English and fervid, it mattered not how rough, sincerity, were
the qualities required: and these qualities were possessed in an eminent degree.
Most questions litigated are questions of law: in nine cases out of ten tried, the
jury, if intelligent and impartial, have no difficulty in deciding after the law has been
plainly given them by the court: there is nothing for a jury to do but to settle the
facts, and these are not often seriously controverted, in proportion to the number of
cases tried in a new country; and the habit of examining carefully, and arguing fully,
legal propositions, is the habit which makes the lawyer. Nothing so debilitates and
corrupts a healthy taste and healthy thought, as the habit of addressing ignorant juries;
it corrupts style and destroys candor; it makes a speech, which ought to be an enlightened
exposition of the legal merits of a cause, a mere mass of "skimble skamble
stuff," a compound of humbug, rant, cant and hypocrisy, of low, demogoguism and
flimsy perversions--of interminable wordiness and infinite repetition, exaggeration,
bathos and vituperation--frequently of low wit and buffoonery--which "causes the
judicious to grieve," "though it splits the ears of the goundlings." I do
not say that the new bar was free from these traits and vices: by no manner of means: but
I do say that they were, as a class, much freer than the bar of the older States out of
the commercial cities. The reason is plain: the new dogs hadn't learned the old tricks;
and if they had tricks as bad, it was a great comfort that they did not have the same. If
we had not improvement, we had, at least variety; but, I think, we had improvement.
There was another thing: the bar and the community--as all emigrant communities--were
mostly young, and the young men cannot afford to play the pranks which the old fogies
safely play behind the domino of an established reputation. What is ridiculous, in itself
or in a young man, may be admired, or not noticed, in an older leader with a prescriptive
title to cant and humbug; it is lese majesty to take him off, but the juniors with
us had no such immunity. If he tried such tricks he heard of it again; it was rehearsed in
his presence for his benefit--if he made himself very ridiculous, he was carried
around the circuit, like a hung jury in old times, for the especial divertisement of the
brethren. * * * more loyal to the professional obligations, or more honorable in
inter-professional intercourse and relations. True, there were exceptions, as, at all
times and every where, there are and will be. Bullying insolence, swaggering pretension,
underhanded arts, low detraction, unworthy huckstering for fees, circumvention, artful
dodges, ignoring engagements, facile obliviousness of arrangements, and a smart
sprinkling, especially in the early times of pettifogging, quibbling and quirking, but
these vices are rather of persons than of caste, and not often found; and, when they make
themselves apparent, are scouted with scorn by the better members of the bar.
We should be grossly misunderstood if we were construed to imply that the bar of the
South-West, possessing the signal opportunities and advantages to which we have adverted,
so improved them that all of its members became good lawyers and honorable gentlemen.
Mendacity itself could scarcely be supposed to assert what no credulity could believe. All
the guano of Lobos could not make Zahara a garden. In too many cases there was no sub-soil
of mind or morals on which these advantages could rest. As Chief Justice Collier, in
Dargan and Waring, 17 Ala. Reports, in language, marrying the manly strength and beauty of
Blackstone to the classic elegance and flexible grace of Stowell, expresses it, "the
claim of such," so predicated, "would be pro tanto absolutely void, and,
having nothing to rest on, a court of equity" (or law) "could not impart to it
vitality. Form and order has been given to chaos, but an appeal to equity" (or
law) "to breathe life into a nonentity, which is both intangible and imperceptible,
supposes a higher power--one which no human tribunal can rightfully exercise. Æquitas
sequitur legem." This view is conclusive.
We should have been pleased to say something of the bench, especially of that of the
Supreme Court of Alabama and Mississippi, but neither our space nor the patience of the
reader will permit.
A writer usually catches something from, as well as communicates something to, his
subject. Hence if, in the statements of this paper, we shall encounter the incredulity of
some old fogy of an older bar, and he should set us down as little better than a romancer
in prose, we beg him to consider that we have had two or three regiments of lawyers for
our theme--and be charitable.
EOD |
