University of Virginia Library

3. THE BENCH AND THE BAR.

In the month of March, A. D., 1836, the writer of these
faithful chronicles of law-doings in the South West, duly
equipped for forensic warfare, having perused nearly the whole
of Sir William Blackstone's Commentaries on the Laws of
England, left behind him the red hills of his native village,
in the valley of the Shenandoah, to seek his fortune. He
turned his horse's head to the setting sun. His loyalty
to the Old Dominion extorts the explanation that his was
no voluntary expatriation. He went under the compulsion
which produced the author's book—“Urged by hunger and
request of friends.” The gentle momentum of a female slipper,
too, it might as well be confessed, added its moral suasion
to the more pressing urgencies of breakfast, dinner and
supper. To the South West he started because magnificent
accounts came from that sunny land of most cheering and exhilarating
prospects of fussing, quarrelling, murdering, violation
of contracts, and the whole catalogue of crimen falsi—
in fine, of a flush tide of litigation in all of its departments,
civil and criminal. It was extolled as a legal Utopia, peopled

by a race of eager litigants, only waiting for the lawyers to come
on and divide out to them the shells of a bountiful system of
squabbling: a California of Law, whose surface strife only
indicated the vast placers of legal dispute waiting in untold
profusion, the presence of a few craftsmen to bring out the
crude suits to some forum, or into chancery for trial or essay.

He resigned prospects of great brilliancy at home. His
family connections were numerous, though those of influence
were lawyers themselves, which made this fact only contingently
beneficial—to wit, the contingency of their dying before
him—which was a sort of remotissima potentia, seeing
they were in the enjoyment of excellent health, the profession
being remarkably salubrious in that village; and seeing further,
that, after their death, their influence might be gone.
Not counting, therefore, too much on this advantage, it was a
well ascertained fact that no man of real talent and energy—
and, of course, every lawyerling has both at the start—had
ever come to that bar, who did not, in the course of five or
six years, with any thing like moderate luck, make expenses,
and, surviving that short probation on board wages, lay up
money, ranging from $250 to $500, according to merit and
good fortune, per annum. In evidence of the correctness of
this calculation, it may be added that seven young gentlemen,
all of fine promise, were enjoying high life—in upper stories
—cultivating the cardinal virtues of Faith and Hope in themselves,
and the greater virtue of Charity in their friends—
the only briefs as yet known to them being brief of money
and brief of credit; their barrenness of fruition in the day

time relieved by oriental dreams of fairy clients, with fifteen
shilling fees in each hand, and glorious ten dollar contingents
in the perspective, beckoning them on to Fame and Fortune.
But Poverty, the rugged mother of the wind-sellers of all
times and countries, as poor Peter Peebles so irreverently
calls our honorable craft,—the Necessity which knows no
Law, yet teaches so much of it, tore him from scenes and
prospects of such allurement: with the heroism of old Regulus,
he turned his back upon his country and put all to hazard—
videlicet, a pony valued at $35, a pair of saddle-bags
and contents, a new razor not much needed at that early day,
and $75 in Virginia bank bills.

Passing leisurely along through East Tennessee, he was
struck with the sturdy independence of the natives, of the
enervating refinements of artificial society and its concomitants;
not less than with the patriotic encouragement they
extended to their own productions and manufactures: the
writer frequently saw pretty farmers' daughters working barefooted
in the field, and his attention was often drawn to the
number of the distilleries and to evident symptoms of a liberal
patronage of their products. He stopped at a seat of
Justice for half a day, while court was in session, to witness
the manner in which the natives did up judicature; but with
the exception of a few cases under a statute of universal authority
and delicacy, he saw nothing of special interest; and
these did not seem to excite much attention beyond the domestic
circle.

The transition from East Tennessee to South Western

Alabama and East Mississippi was something marked. It
was somewhat like a sudden change from “Sleepy Hollow”
to the Strand. A man, retailing onions by the dozen in
Weathersfield, and the same man suddenly turned into a
real estate broker in San Francisco, would realize the contrast
between the picayune standard of the one region, and
the wild spendthriftism, the impetuous rush and the magnificent
scale of operations in the other.

The writer pitched his tabernacle on the thither side of
the state line of Alabama, in the charming village of P., one
of the loveliest hamlets of the plain, or rather it would be,
did it not stand on a hill. Gamblers, then a numerous class,
included, the village boasted a population of some five hundred
souls; about a third of whom were single gentlemen who
had come out on the vague errand of seeking their fortune,
or the more definite one of seeking somebody else's; philosophers
who mingled the spirit of Anacreon with the enterprise
of Astor, and who enjoyed the present as well as laid projects
for the future, to be worked out for their own profit upon the
safe plan of some other person's risk.

Why he selected this particular spot for his locus in quo,
is easily told. The capital he had invested in emigration
was nearly expended and had not as yet declared any dividend;
and, with native pride, he was ambitious to carry money
enough with him to excite the hopes of his landlord. Besides,
he was willing to try his hand on the practice where
competition was not formidable.

The “accommodations” at the “American Hotel” were

not such as were calculated to beguile a spiritual mind to
things of sense. The writer has been at the Astor, the Revere
and the St. Charles since, and did not note the resemblance.
A huge cross-piece, like a gibbet, stood before the
door—the usual inn-sign of the country; and though a very
apt device as typifying death, it was not happy in denoting
the specific kind of destruction that menaced the guest. The
vigor of his constitution, however, proved sufficient for the
trial; though, for a long time, the contest was dubious.

In the fall of the year so scarce were provisions—bull-beef
excepted, which seemed to be every where—that we
were forced to eat green corn, baked or fried with lard, for
bread; and he remembers, when biscuits came again, a mad
wag, Jim Cole, shouted out from the table that he should certainly
die now, for want of a new bolting cloth to his throat.

A shed for an office procured, the next thing was a license;
and this a Circuit Judge was authorized to grant,
which service was rendered by the Hon. J. F. T. in a manner
which shall ever inspire gratitude—he asking not a single
legal question; an eloquent silence which can never be appreciated
except by those who are unable to stand an examination.

This egotism over, and its purpose of merely introducing
the witness accomplished, the narrative will proceed without
further mention of him or his fortunes; and if any reader
thinks he loses any thing by this abbreviation, perhaps it will
be full consolation to him to know that if it proceeded further,
the author might lose a great deal more.

Dropping the third for the more convenient first person,
he will proceed to give some account of what was done by or
to Themis in that part of her noisy domain.

Those were jolly times. Imagine thirty or forty young
men collected together in a new country, armed with fresh
licenses which they had got gratuitously, and a plentiful
stock of brass which they had got in the natural way; and
standing ready to supply any distressed citizen who wanted
law, with their wares counterfeiting the article. I must confess
it looked to me something like a swindle. It was doing
business on the wooden nutmeg, or rather the patent brass-clock
principle. There was one consolation: the clients were
generally as sham as the counsellors. For the most part,
they were either broke or in a rapid decline. They usually
paid us the compliment of retaining us, but they usually retained
the fee too, a double retainer we did not much fancy.
However, we got as much as we were entitled to and something
over, videlicet, as much over as we got at all. The
most that we made was experience. We learned before long,
how every possible sort of case could be successfully lost; there
was no way of getting out of court that we had not tested. The
last way we learned was via a verdict: it was a considerable
triumph to get to the jury, though it seemed a sufficiently
easy matter to get away from one again. But the perils of
the road from the writ to an issue or issues—for there were
generally several of them—were great indeed. The way was
infested and ambushed, with all imaginable points of practice,

quirks and quibbles, that had strayed off from the litigation
of every sort of foreign judicature,—that had been successfully
tried in, or been driven out of, regularly organized forums,
besides a smart sprinkling of indigenous growth. Nothing
was settled. Chaos had come again, or rather, had never
gone away. Order, Heaven's first law, seemed unwilling to
remain where there was no other law to keep it company. I
spoke of the thirty or forty barristers on their first legs—
but I omitted to speak of the older members who had had
the advantage of several years' practice and precedence.
These were the leaders on the Circuit. They had the law—
that is the practice and rulings of the courts—and kept it as
a close monopoly. The earliest information we got of it was
when some precious dogma was drawn out on us with fatal
effect. They had conned the statutes for the last fifteen
years, which were inaccessible to us, and we occasionally,
much to our astonishment, got the benefit of instruction in a
clause or two of “the act in such cases made and provided”
at a considerable tuition fee to be paid by our clients. Occasionally,
too, a repealed statute was revived for our especial
benefit. The courts being forbidden to charge except as specially
asked, took away from us, in a great measure, the protection
of the natural guardians of our ignorant innocence:
there could be no prayer for general relief, and we did not—
many of us—know how to pray specially, and always ran
great risks of prejudicing our cases before the jury, by having
instructions refused. It was better to trust to the “uncovenanted
mercies” of the jury, and risk a decision on the
honesty of the thing, than blunder along after charges. As
to reserving points except as a bluff or scarecrow, that was a
thing unheard of: the Supreme Court was a perfect terra incognita:
we had all heard there was such a place, as we had
heard of Heaven's Chancery, to which the Accusing Spirit
took up Uncle Toby's oath, but we as little knew the way there,
and as little expected to go there. Out of one thousand
cases, butchered in cold blood without and with the forms of
law, not one in that first year's practice, ever got to the High
Court of Errors and Appeals; (or, as Prentiss called it, the
Court of High Errors and Appeals.) No wonder we never
started. How could we ever get them there? If we had to
run a gauntlet of technicalities and quibbles to get a judgment
on “a plain note of hand,” in the Circuit Court, Tam
O'Shanter's race through the witches, would be nothing to
the journey to and through the Supreme Court! It would
have been a writ of error indeed—or rather a writ of many
errors. This is but speculation, however—we never tried it
—the experiment was too much even for our brass. The
leaders were a good deal but not generally retained. The
reason was, they wanted the money, or like Falstaff's mercer,
good security; a most uncomfortable requisition with the
mass of our litigants. We, of the local bar trusted—so did
our clients: it is hard to say which did the wildest credit
business.

The leaders were sharp fellows—keen as briars—au fait
in all trap points—quick to discern small errors—perfect in
forms and ceremonies—very pharisees in “anise, mint and

cummin—but neglecting judgment and the weightier matters
of the law.” They seemed to think that judicature was
a tanyard—clients skins to be curried—the court the mill,
and the thing “to work on their leather” with—bark: the
idea that justice had any thing to do with trying causes, or
sense had any thing to do with legal principles, never seemed
to occur to them once, as a possible conception.

Those were quashing times, and they were the out quashingest
set of fellows ever known. They moved to quash every
thing, from a venire to a subpœna: indeed, I knew one of
them to quash the whole court, on the ground that the Board
of Police was bound by law to furnish the building for holding
the Court, and there was no proof that the building in
which the court was sitting was so furnished. They usually,
however, commenced at the capias—and kept quashing on
until they got to the forthcoming bond which, being set aside,
released the security for the debt, and then, generally, it was
no use to quash any thing more. In one court, forthcoming
bonds, to the amount of some hundred thousands of dollars,
were quashed, because the execution was written “State of
Mississippi”—instead of “the State of Mississippi,” the constitution
requiring the style of process to be the State of
Mississippi: a quashing process which vindicated the constitution
at the expense of the foreign creditors in the matter
of these bonds, almost as effectively as a subsequent vindication
in respect of other bonds, about which more clamor was
raised.

Attachments were much resorted to, there being about

that time as the pressure was coming on, a lively stampede
to Texas. It became the interest of the debtors and their
securities, and of rival creditors, to quash these, and quashed
they were, almost without exception. J. H. was sheriff of
W., and used to keep a book in which he noted the disposition
of the cases called on the docket. Opposite nearly every
attachment case, was the brief annotation—“quashed for
the lack of form.” This fatality surprised me at first, as the
statute declared the attachment law should be liberally construed,
and gave a form, and the act required only the substantial
requisites of the form to be observed: but it seems
the form given for the bond in the statute, varied materially
from the requirements of the statute in other portions of the
act: and so the circuit courts held the forms to be a sort of
legislative gull trap, by following which, the creditor lost his
debt.

This ingenious turn for quibbling derived great assistance
and many occasions of exercise from the manner in which
business had been done, and the character of the officials who
did it, or rather who didn't do it. The justices of the peace,
probate judges, and clerks, and sheriffs, were not unfrequently
in a state of as unsophisticated ignorance of conventionalities
as could be desired by J. J. Rousseau or any other eulogist
of the savage state. They were all elected by the people,
who neither knew nor cared whether they were qualified or
not. If they were “good fellows” and wanted the office,
that is, were too poor and lazy to support themselves in any
other way, that was enough. If poor John Rogers, with

nine small children and one at the breast, had been in Mississippi
instead of Smithfield, he could have got any office he
wanted, that is, if he had quit preaching and taken to treating.
The result of these official blunders was, that about
every other thing done at all, was done wrong: indeed, the
only question was as between void and voidable. Even in
capital cases, the convictions were worth nothing—the record
not showing enough to satisfy the High Court that the prisoner
was tried in the county, or at the place required by law,
or that the grand jury were freeholders, &c., of the county
where the offence was committed, or that they had found a
bill. They had put an old negro, Cupid, in C— county,
in question for his life, and convicted him three times, but
the conviction never would stick. The last time the jury
brought him in guilty, he was very composedly eating an
apple. The sheriff asked him how he liked the idea of being
hung. “Hung,” said he—“hung! You don't think they
are going to hang me, do you? I don't mind these little
circuit judges: wait till old Shurkey says the word in the
High Court, and then it will be time enough to be getting
ready.”

But if quashing was the general order of the day, it was
the special order when the State docket was taken up.
Such quashing of indictments! It seemed as by a curious
display of skill in missing, the pleader never could get an
indictment to hold water. I recollect S., who was prosecuting
pro tem. for the State, convicted a poor Indian of murder,
the Indian having only counsel volunteering on his

arraignment; S. turned around and said with emphatic complacency:
“I tell you, gentlemen, there is a fatality attending
my indictments.” “Yes,” rejoined B., “they are generally
quashed.”

It was in criminal trials that the juniors flourished.
We went into them with the same feeling of irresponsibility
that Allen Fairfield went into the trial of poor Peter Peeble's
suit vs. Plainstaines, namely—that there was but little
danger of hurting the case. Any ordinary jury would have
acquitted nine cases out of ten without counsel's instigating
them thereto—to say nothing of the hundred avenues of escape
through informalities and technical points. In fact,
criminals were so unskilfully defended in many instances,
that the jury had to acquit in spite of the counsel. Almost
any thing made out a case of self-defence—a threat—a quarrel—an
insult—going armed, as almost all the wild fellows
did—shooting from behind a corner, or out of a store door,
in front or from behind—it was all self-defence! The only
skill in the matter, was in getting the right sort of a jury,
which fact could be easily ascertained, either from the general
character of the men, or from certain discoveries the
defendant had been enabled to make in his mingling among
“his friends and the public generally,”—for they were all,
or nearly all, let out on bail or without it. Usually, the
sheriff, too, was a friendly man, and not inclined to omit a
kind service that was likely to be remembered with gratitude
at the next election.

The major part of criminal cases, except misdemeanors,

were for killing, or assaults with intent to kill. They were
usually defended upon points of chivalry. The iron rules
of British law were too tyrannical for free Americans, and
too cold and unfeeling for the hot blood of the sunny south.
They were denounced accordingly, and practically scouted
from Mississippi judicature, on the broad ground that they
were unsuited to the genius of American institutions and
the American character. There was nothing technical in
this, certainly.

But if the case was a hopeless or very dangerous one,
there was another way to get rid of it. “The world was all
before” the culprit “where to choose.” The jails were in
such a condition—generally small log pens—that they held
the prisoner very little better than did the indictment: for
the most part, they held no one but Indians, who had no
friend outside who could help them, and no skill inside to
prize out. It was a matter of free election for the culprit
in a desperate case, whether he would remain in jail or not;
and it is astonishing how few exercised their privilege in
favor of staying. The pains of exile seemed to present no
stronger bars to expatriation, than the jail doors or windows.

The inefficiency of the arresting officers, too, was generally
such that the malefactor could wind up his affairs and
leave before the constable was on his track. If he gave bail,
there were the chances of breaking the bond or recognizance,
and the assurance against injury, derived from the fact that
the recognizors were already broke.

The aforesaid leaders carried it with a high hand over
us lawyerlings. If they took nothing by their false clamor,
they certainly lost nothing by sleeping on their rights, or by
failing to claim all they were entitled to. What they couldn't
get by asking the court, they got by sneering and brow-beating.
It was pleasant to watch the countenances of some of
them when one of us made a motion, or took a point, or asked
a question of a witness that they disapproved of. They
could sneer like Malgroucher, and scold like Madame Caudle,
and hector like Bully Ajax.

We had a goodly youth, a little our senior but more
their junior, a goodly youth from the Republic of South
Carolina, Jim T. by name. The elders had tried his mettle:
he wouldn't fag for them, but stood up to them like a man.
When he came to the bar, Sam J. made a motion at him on
the motion docket, requiring him to produce his original
book of entries on the trial or be non suit. (He had brought
an action of assumpsit on a blacksmith's account.) When
the case was called, Sam demanded whether the book was in
court. Jim told him “No, and it wouldn't be,” and denied
his right to call for it; whereupon, Sam let the motion go,
and suffered Jim T. to go on and prove the account and get
the verdict; a feat worthy of no little praise. Jim was equal
to any of them in law, knowledge and talent, and superior in
application and self-confidence, if that last could be justly
said of mere humanity. He rode over us rough-shod, but we
forgave him for it in consideration of his worrying the elders,
and standing up to the rack. He was the best lawyer of his

age I had ever seen. He had accomplished himself in the
elegant science of special pleading,—had learned all the arts
of confusing a case by all manner of pleas and motions, and
took as much interest in enveloping a plain suit in all the
cobwebs of technical defence as Vidocq ever took in laying
snares for a rogue. He could “entangle justice in such a
web of law,” that the blind hussey could have never found
her way out again if Theseus had been there to give her the
clew. His thought by day and his meditation by night,
was special pleas. He loved a demurrer as Domine Dobiensis
loved a pun—with a solemn affection. He could draw
a volume of pleas a night, each one so nearly presenting a
regular defence, that there was scarcely any telling whether
it hit it or not. If we replied, ten to one he demurred to
the replication, and would assign fifteen special causes of demurrer
in as many minutes. If we took issue, we ran an
imminent risk of either being caught up on the facts, or of
having the judgment set aside as rendered on an immaterial
issue. It was always dangerous to demur, for the demurrer
being overruled, the defendant was entitled to judgment
final. Cases were triable at the first term, if the writ had
been served twenty days before court. It may be seen, therefore,
at a glance, that, with an overwhelming docket, and
without books, or time to consult them if at hand, and without
previous knowledge, we were not reposing either on a
bed of roses or of safety. Jim T. was great on variances, too.
If the note was not described properly in the declaration,
we were sure to catch it before the jury: and, if any point
could be made on the proofs, he was sure to make it. How
we trembled when we began to read the note to the jury!
And how ominous seemed the words “I object”—of a most
cruel and untimely end about being put to our case. How
many cases where, on a full presentment of the legal merits
of them, there was no pretence of a defence, he gained, it is impossible
to tell. But if the ghosts of the murdered victims
could now arise, Macbeth would have had an easy time of it
compared with Jim T. How we admired, envied, feared and
hated him! With what a bold, self-relying air he took his
points! With what sarcastic emphasis he replied to our defences
and half defences! We thought that he knew all the
law there was: and when, in a short time, he caught the old
leaders up, we thought if we couldn't be George Washington,
how we should like to be Jim T.

He has risen since that time to merited distinction as a
ripe and finished lawyer; yet, “in his noon of fame,” he never
so tasted the luxury of power,—never so knew the bliss
of envied and unapproached preëmenence, as when in the old
log court-houses he was throwing the boys right and left as
fast as they came to him, by pleas dilatory, sham and meritorious,
demurrers, motions and variances. So infallible was
his skill in these infernal arts, that it was almost a tempting
of Providence not to employ him.

I never thought Jim acted altogether fairly by squire A.
The squire had come to the bar rather late in life, and though
an excellent justice and a sensible man, was not profoundly
versed in the metaphysics of special pleading. He was particularly

pleased when he got to a jury on `a plain note,' and
particularly annoyed when the road was blocked up by pleas
in abatement and demurrers or special pleas in bar. He
had the most unlimited admiration of Jim. Indeed, he had
an awful reverence for him. He looked up to him as Boswell
looked up to Sam Johnson, or Timothy to Paul. The
squire had a note he was anxious to get judgment on. He
had declared with great care and after anxious deliberation.
Not only was the declaration copied from the most approved
precedent, but the common counts were all put in with
all due punctilios, to meet every imaginable phase the case
could assume. Jim found a variance in the count on the
note: but how to get rid of the common counts was the difficulty.
He put a bold face on the matter, however, went
up to A. in the court-house, and threw himself into a passion.
“Well,” said he, with freezing dignity—“I see, sir
you have gone and put the common counts in this declaration—do
I understand you to mean them to stand? I desire
to be informed, sir?” “Why, y-e-s, that is, I put 'em there
—but look here, H—, what are you mad at? What's
wrong?” “What's wrong?”—a pretty question! Do you
pretend, sir, that my client ever borrowed any money of
yours—that yours ever paid out money for mine? Did your
client ever give you instructions to sue mine for borrowed
money? No, sir, you know he didn't. Is that endorsed on
the writ? No, sir. Don't you know the statute requires
the cause of action to be endorsed on the capias ad respondendum?
I mean to see whether an action for a malicious
suit wouldn't lie for this; and shall move to strike out all
these counts as multifarious and incongruous and heterogeneous.”
“Well, Jim, don't get mad about it, old fellow—I
took it from the books.” “Yes, from the English books—but
didn't you know we don't govern ourselves by the British
statute?—if you don't, I'll instruct you.” “Now,” said A.,
“Jim, hold on—all I want is a fair trial—if you will let me
go to the jury, I'll strike out these common counts.” “Well,”
said Jim, “I will this time, as it is you; but let this be a
warning to you, A., how you get to suing my clients on promiscuous,
and fictitious, and pretensed causes of action.”

Accordingly they joined issue on the count in chief—A.
offered to read his note—H. objected—it was voted out, and
A. was nonsuited. “Now,” said Jim, “that is doing the
thing in the regular way. See how pleasant it is to get on
with business when the rules are observed!”

The case of most interest at the fall term of N—e court,
1837, was the State of Mississippi vs. Major Foreman, charged
with assault with intent to kill one Tommy Peabody, a
Yankee schoolmaster in the neighborhood of M—ville. The
District Attorney being absent, the court appointed J. T. to
prosecute. All the preliminary motions and points of order
having been gone through, and having failed of success, the
defendant had to go to trial before the jury. The defendant
being a warm democrat, selected T. M., the then leader of
that party, and Washington B. T., then a rising light of the
same political sect, to defend him. The evidence was not

very clear or positive. It seemed that an altercation had
arisen at the grocery (fashionably called doggery), between
a son of the defendant and the schoolmaster, which led to
the shooting of the pistol by the younger F. at the aforesaid
Thomas, as the said Thomas was making his way with equal
regard to speed of transit and safety of conveyance from that
locality. As it was Thomas's business to teach the young
idea to shoot, he had no idea of putting to hazard “the delightful
task” by being shot himself: and by thinking him
of “what troubles do environ the man that meddles with cold
iron” on the drawing thereof, resolved himself into a committee
of safety, and proceeded energetically to the dispatch
of the appropriate business of the board. But fast as Thomas
travelled, a bevy of mischievous buckshot, as full of devilment
as Thomas's scholars just escaped from school, rushed
after, and one of them, striking him about two feet above
the calf of his right leg, made his seat on the scholastic tripod
for a while rather unpleasant to him. In fact, Thomas
suffered a good deal in that particular region in which he
had been the cause of much suffering in others. Thomas
also added to the fun naturally attaching, in the eyes of
the mercurial and reckless population of the time, to a Yankee
schoolmaster's being shot while running, in so tender a
point, by clapping his hands behind at the fire, and bellowing
out that the murderer had blown out his brains! A mistake
very pardonable in one who had come fresh from a country
where pistols were not known, and who could not be expected,
under these distressing circumstances, to estimate, with
much precision, the effect of a gun-shot wound.

Young Foreman, immediately after the pistol went off,
followed its example. And not being of a curious turn, did
not come back to see what the sheriff had done with a document
he had for him, though assured that it related to important
business. The proof against him—as it usually was
against any one who couldn't be hurt by it—was clear enough,
but it was not so much so against his father. The Major was
there, had participated in the quarrel, and about the time of
the firing, a voice the witness took—but wasn't certain—to
be the Major's, was heard to cry out, “Shoot! Shoot!” and,
shortly after the firing, the Major was heard to halloo to
Peabody, “Run—Run, you d—d rascal—run!” This was
about the strength of the testimony. The Major was a gentleman
of about fifty-five—of ruddy complexion, which he
had got out of a jug he kept under his bed of cold nights,
without acknowledging his obligations for the loan—about
five feet eight inches high and nearly that much broad. Nature
or accident had shortened one leg, so that he limped
when he walked. His eyes stood out and were streaked like
a boy's white alley—and he wore a ruffled shirt; the same,
perhaps, which he had worn on training days in Georgia, but
which did not match very well with a yellow linsey vest,
and a pair of copperas-colored jeans pantaloons he had
squeezed in the form of a crescent over his protuberant
paunch: on the whole, he was a pretty good live parody on
an enormous goggle-eyed sun perch.

He had come from Georgia, where he had been a major
in the militia, if that is not tautology; for I believe that

every man that ever comes from Georgia is a major,—repaying
the honor of the commission or title by undeviating fidelity
to the democratic ticket. He would almost as soon been
convicted as to have been successfully defended by a whig
lawyer.

Old F. held up his head for some time—indeed, seemed
to enjoy the mirth that was going on during the testimony,
very much. But when J. T. began to pour broadside after
broadside into him, and bring up fact after fact and appeal
after appeal, and the court-house grew still and solemn, the
old fellow could stand it no longer. Like the Kentucky
militia at New Orleans, he ingloriously fled, sneaking out
when no one was looking at him. The sheriff, however,
soon missed him, and seeing him crossing the bridge and
moving towards the swamp, raised a posse and followed after.
The trial in the mean time proceeded—as did the Major.

I said he was defended in part by W. B. T.

You didn't know Wash? Well, you missed a good
deal. He would have impressed you. He was about
thirty years old at the time I am writing of. He came to
N. from East Tennessee, among whose romantic mountains
he had “beat the drum ecclesiastic” as a Methodist preacher.
He had, however, doffed the cassock, or rather, the shad-belly,
for the gown. He had fallen from grace—not a high
fall—and having warred against the devil for a time—a quarter
or more—Dalgetty-like, he got him a law license, and
took arms on the other side. His mind was not cramped,
nor his originality fettered by technical rules or other learning.

His voice, had not affectation injured the effect of it,
was remarkably fine, full, musical and sonorous, and of any
degree of compass and strength. He was as fluent of words
as a Frenchman. He was never known to falter for a word,
and if he ever paused for an idea, he paused in vain. He
practised on his voice as on an organ, and had as many ups
and downs, high keys and low, as many gyrations and windings
as an opera singer or a stage horn. H. G—y used to
say of him that he just shined his eyes, threw up his arms,
twirled his tongue, opened his mouth, and left the consequences
to heaven. He practised on the injunction to the apostles,
and took no thought what he should say, but spoke
without labor—mental or physical. To add to the charms
of his delivery, he wore a poppaw smile, a sort of sickly-sweet
expression on his countenance, that worked like Dover's
powders on the spectator.

After J. T. had concluded his opening speech, Washington
rose to open for the defence. The speech was a remarkable
specimen of forensic eloquence. It had all the charms
of Counsellor Phillips' most ornate efforts, lacking only the
ideas. Great was the sensation when Wash. turned upon
the prosecutor. “Gentlemen of the jury,” said the orator,
“this prosecutor is one of the vilest ingrates that ever
lived since the time of Judas Iscariot; for, gentlemen, did
you not hear from the witnesses, that when this prosecutor
was in the very extremity of his peril, my client, moved by
the tenderest emotions of pity and compassion, shouted out,
`Run! run! you d—d rascal—run!' It is true (lowering

his voice and smiling), gentlemen, he said `you d—d rascal,'
but the honorable court will instruct you that that was merely
descriptio personæ.” The effect was prodigious.

After Washington had made an end, old Tallabola rose
slowly, as if oppressed by the weight of his subject. Now
T. never made a jury speech without telling an anecdote.
Whatever else was omitted the anecdote had to come. It is
true, the point and application were both sometimes hard to
see; and it is also true that as T's stock was by no means
extensive, he had to make up in repetition what he lacked
in variety. He had, however, one stand-by which never
failed him. He might be said to have chartered it. He
had told it until it had got to be a necessity of speech.
The anecdote was a relation of a Georgia major's prowess
in war. It ran thus: The major was very brave when the
enemy was at a distance, and exhorted his men to fight to
the death;—the enemy came nearer—the major told his soldiers
to fight bravely, but to be prudent;—the foe came in
sight, their arms gleaming in the sunshine—and the major
told the men that, if they could not do better, they ought to
retreat; and added he, “being a little lame, I believe I
will leave now.” And so, said T., it was with the prosecutor.
At length after a long speech, T. concluded. J. T. rose to
reply. He said, before proceeding to the argument, he
would pay his respects to his old acquaintance, the anecdote
of the Georgia major. He had known it a long while, indeed
almost as long as he had known his friend T. It had
afforded him amusement for many courts—how many he

couldn't now stop to count. Knowing the major to have been
drafted into Mr. T's speeches for many a campaign, he had
hoped the war-worn veteran had been discharged from duty
and pensioned off, in consideration of long and hard usage,
or at least, that he was resting on furlough; but it seems he
was still in active service. His friend had not been very
happy in his anecdote on other occasions, but, he must say,
on this occasion he was most felicitously unhappy; for the
DEFENDANT was a major—he was a Georgia major too; unfortunately,
he was a little lame also; and, to complete the
parallel, “in the heat of this action, on looking around,” said
J. T., “I find he has left!” T. jumped up—“No evidence
of that, Mr. H. Confine yourself to the record, if you
please.” “Well,” said J. T., “gentlemen, my friend is a
little restive. You may look around, and judge for yourselves.”
Tallabola never told that anecdote any more;—
he had to get another.

The jury having been sufficiently confused as to the law
by which about twenty abstract propositions bearing various,
and some of them no relation to the facts (the legislature,
in its excessive veneration for the sanctity of jury trial having
prohibited the judges from charging in an intelligible
way), retired from the bar to consider of their verdict. In
a few moments they returned into court. But where was
the prisoner? Like Lara, he wouldn't come. The court refused
to receive the verdict in the absence of the defendant.
Finally, after waiting a long while, the Major was brought,
an officer holding on to each arm, and a crowd following at

his heels. (The Major had been caught in the swamp.)
When he came in, he thought he was a gone sucker. The
court directed the clerk to call over the jury: they were
called, and severally answered to their names. The perspiration
rolled from the Major's face—his eyes stuck out as
if he had been choked. At the end of the call, the judge
asked “Are you agreed on your verdict?” The foreman
answered “Yes,” and handed to the clerk the indictment
on which the verdict was endorsed. The clerk read it slowly.
“We—the jury—find the—de—fen—dant (the Major
held his breath) not guilty.” One moment more and he
had fainted. He breathed easy, then uttering a sort of relieving
groan shortly after, he came to Tallabola—“Tal,”
said he, blubbering and wiping his nose on his cuff, “I'm
going to quit the dimmycratic party and jine the whigs.”
“Why, Major,” said Tal, “what do you mean? you're one
of our chief spokes at your box. Don't you believe in our
doctrines?” “Yes,” said the Major, “I do; but after my
disgraceful run I'm not fit to be a dimmycrat any longer—
I'd disgrace the party—and am no better than a dratted,
blue-bellied, federal whig!”