University of Virginia Library

LETTER IV.
THE BAR.

I HAVE not yet been inside of a court of justice, nor seen a case tried, since I have been in the territory. But it has been my pleasure to meet one of the judges of the supreme court and several prominent members of the bar. My impression is, that in point of skill and professional ability the Minnesota bar is a little above the average of territorial bars. Here, as in the West generally, the practice is common for lawyers to mix with their profession considerable miscellaneous business, such as the buying and selling of land. The law is too jealous a mistress to permit any divided love, and therefore it cannot be expected that really good lawyers will be found in the ranks of general business agents and speculators. In other words, a broker's office is not a lawyer's office. There are some lawyers here who have attended strictly to the profession, who are ornaments of it, and who have met with good success. The idea has been common, and as fatal as common, that success in legal practice could be easily attained in the West with a small amount of skill and learning. It is true that a poor lawyer aided by some good qualities will sometimes rise to affluence and eminence, though such cases are exceptions. There are able layers in the West, and, though practice may be less formal and subtle than in older communities, ability and skill find their relative advancement and reward, while ignorance and incapacity have their downward tendency just as they do everywhere else. The fees for professional services are liberal, being higher than in the East. Before an attorney can be admitted to practise he must have an examination by, or under the direction of, one of the judges of the supreme court. The provisions of the territorial statutes are quite strict in their tendency to maintain upright practice.

An act of the present congress has created a revolution in the courts of the territory. The organic act, SS 9, provided that the territory should be divided into three judicial districts; "and a district court shall be held in each of said districts by one of the justices of the supreme court, at such times and places as may be prescribed by law." This meant, I suppose, at such times and places as the territorial legislature should prescribe. Accordingly, as population increased and extended, and as counties were established, the territorial legislature increased the places in each district for holding the district court. Either on account of the expense or for some other cause congress has just stepped aside from the doctrine of non-intervention (ch. 124, sec. 5), and abrogated the territorial legislation so far as to provide that there shall be but one place in each of the three districts for holding a district court. The act applies to all territories. In a territory of five or six hundred miles in extent it is of course inconvenient to have but three places for holding courts. The Minnesotians complain that it is an interference with popular sovereignty. It is possible the legislature might have gone to an extreme in creating places for holding courts; and I suppose the judges were kept on the march a good deal of the time. It also looks as if the remedy by congress was extreme. The people say it is a coercive measure to drive them into a state organization.

The administration of justice is secured by a system which is now common to all the territories, with the exception of Kansas. The supreme court consists of the three district judges in full bench. They hold nisi prius terms in their respective districts, which are called district courts. The judges have a salary of $2000 each, and are appointed for a term of four years, subject to removal by the President. The district courts have chancery jurisdiction in matters where there is not a plain, adequate, and complete remedy at law. (Stat. of Min. ch. 94, sec. 1.) There are also probate courts. Each county has two justices of the peace, who are elected by the people. And I cannot but remark how much better the practice is to elect or appoint a few justices of the peace rather than to allow the office to be degraded by wholesale appointments, as a matter of compliment, according to the usage too common in some Eastern States. The justices of the peace have jurisdiction in civil cases where the amount in question does not exceed $100; and when the amount at issue is over $20 either party may demand a jury of six men to try the case. But there would be little demand for juries if all magistrates were as competent as our enlightened friend Judge Russell.

Special pleading never flourished much in the West. It was never "a favorite with the court" out this way; while the regard which the lawyers have cherished for it has been "distant and respectful." It has been laid on the shelf about as effectually as bleeding in the practice of medicine. The science of special pleading, as it is known in these days—and that in some of the older states—exists in a mitigated form from what it did in the days of Coke and Hale. The opportunities to amend, and the various barriers against admitting a multiplicity of pleas, have rendered the system so much more rational than it once was, that it is doubtful if some of the old English worthies could now identify it. Once a defendant could plead to an action of assumpsit just as many defences as he chose; first, he could deny the whole by pleading the general issue; then he could plead the statute of limitations, infancy, accord and satisfaction, and a dozen other pleas, by which the plaintiff would be deprived of any clue to the real defence. I suppose it was this practice of formal lying which has given rise to the popular error that a lawyer is in the habit of lying, or is obliged to lie, in his arguments. Many people do not know the difference between pleading—which is a process in writing to bring the parties to an issue—and the oral arguments of counsel in courts. It is ridiculous to suppose that it is easy or profitable for lawyers to make false statements in their arguments. The opposing counsel is ready to catch at anything of the kind; and if he misstates the evidence, the jury are aware of it; while if he states what is not law, the court generally knows it. So there is no opportunity for lying even if a lawyer should be so disposed. The practice in civil actions as provided by the statutes of Minnesota is similar—if not actually the same—to the New York code of practice. There is but one form of action, called an action of contract. The only pleading on the part of the plaintiff is, 1st, the complaint; 2d, the reply. On the part of the defendant, 1st, demurrer; or 2d, the answer. (Stats. ch. 70, sec. 58.) The complaint must contain, 1st, the title of the cause, specifying the name of the court in which the action is brought and the names of the parties to the action, plaintiff and defendant; 2d, a statement of the facts constituting the cause of action in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended; 3d, a demand of the relief to which the plaintiff supposes himself entitled. If the recovery of money be demanded the amount must be stated. (Ibid. sec. 59.)

While testifying my approval of this code of practice as a whole, I cannot resist saying that in many respects it is not so systematic as the Massachusetts code, which was devised by Messrs. Curtis (now Mr. Justice), Lord, and Chapman. That code is one of the best in the world. And if I may be allowed one word more about special pleading, I would say that there is no branch of law which will better reward study. Without mentioning the practice in the U. S. courts, which requires, certainly, a knowledge of special pleading, no one can read the old English reports and text books with much profit, who is ignorant of the principles of that science.

A class of business peculiar to new territories and states arises from the land laws. A great many pre-emption cases are contested before the land officers, in which the services of lawyers are required. This fact will partly explain why there are, generally, so many lawyers located in the vicinity of a land office. In a community that is newly settled the title to property must often be in dispute; and however much averse people may be to going to law, they find it frequently indispensable, if they wish to have their rights settled on a firm basis.

The opinion prevails almost universally in the East that a lawyer can do best in the West. In some respects he can. If he cannot do a good deal better, he is not compensated for going. I had the pleasure of a conversation last summer with one of the most eminent members of the New York bar (Mr. O'Connor), on this very subject. It was his opinion that western lawyers begin sooner to enjoy their reputation than the lawyers in the eastern cities. This is true; and results from there being less competition in newer communities. "A lawyer among us," said Mr. O'Connor, "seldom acquires eminence till he begins to turn gray." Nevertheless, there is no field so great and so certain in the long run, in which one may become really a great lawyer, as in some of our large commercial cities, whether of the East or the West. To admit of the highest professional eminence there must be a large and varied business; and a lawyer must devote himself almost exclusively to law. And then, when this great reputation is acquired, what does it amount to? Something now, but not much hereafter. The great lawyer lives a life of toil and excitement. Often does it seem to "break on the fragments of a reviving dream." His nerves are worn by the troubles of others; for the exercise of the profession, as has been said by a brilliant lawyer, "involves intimate participation with the interests, hopes, fears, passions, affections, and vicissitudes of many lives." And yet merely as a lawyer, he seldom leaves any durable vestige of his fame behind him—hardly a fortune. But if his fame is transient and mortal, there is some equivalent in the pleasure of triumph and the consciousness of power. There is no man so powerful as the great lawyer. The wealth and the character of his fellow men often depend upon him. His clients are sometimes powerful corporations, or cities, or states. Crowded courts listen to his eloquence year after year; and no one has greater freedom of speech than he. The orator and politician may be wafted into a conspicuous place for a brief period, and fall again when popular favor has cooled; yet the lawyer is rising still higher, nor can the rise and fall of parties shake him from his high pedestal; for the tenure of his power is not limited. He is, too, one of the most serviceable protectors of the liberties of his country. It was as a lawyer that Otis thundered against writs of assistance. The fearless zeal of Somers, in defence of the seven bishops, fanned the torch of liberty at the beginning of the great English revolution. Erskine and Brougham did more as lawyers to promote freedom of the press, than as Statesmen.

I cannot refrain from inserting here Mr. Justice Talfourd's interesting analysis of the professional abilities of Follett: "It may be well, while the materials for investigation remain, to inquire into the causes of success, so brilliant and so fairly attained by powers which have left so little traces of their progress. Erskine was never more decidedly at the head of the common law bar than Follett; compared with Follett he was insignificant in the house of commons; his career was chequered by vanities and weaknesses from which that of Follett was free; and yet even if he had not been associated with the greatest constitutional questions of his time and their triumphant solution, his fame would live by the mere force and beauty of his forensic eloquence as long as our language. But no collection of the speeches of Follett has been made; none will ever be attempted; no speech he delivered is read, except perchance as part of an interesting trial, and essential to its story, and then the language is felt to be poor, the cadences without music, and the composition vapid and spiritless; although, if studied with a view to the secrets of forensic success, with a 'learned spirit of human dealing,' in connexion with the facts developed and the difficulties encountered, will supply abundant materials for admiration of that unerring skill which induced the repetition of fortunate topics, the dexterous suppression of the most stubborn things when capable of oblivion, and the light evasive touch with which the speaker fulfilled his promise of not forgetting others which could not be passed over, but which, if deeply considered, might he fatal. If, however, there was no principle of duration in his forensic achievements, there can be doubt of the esteem in which they were held or the eagerness with which they were sought. His supremacy in the minds of clients was more like the rage of a passion for a youthful Roscius or an extraordinary preacher, than the result of deliberate consideration; and yet it prevailed, in questions not of an evening's amusement, but of penury or riches, honor or shame. Suitors were content, not only to make large sacrifices for the assured advantage of his advocacy, but for the bare chance—the distant hope—of having some little part (like that which Phormio desires to retain in Thais) of his faculties, with the certainty of preventing their opposition. There was no just ground, in his case, for the complaint that he received large fees for services he did not render; for the chances were understood by those who adventured in his lottery; in which after all there were comparatively few blanks. His name was 'a tower of strength,' which it was delightful to know that the adverse faction wanted, and which inspired confidence even on the back of the brief of his forsaken junior, who bore the burden and heat of the day for a fifth of the fee which secured that name. Will posterity ask what were the powers thus sought, thus prized, thus rewarded, and thus transient? They will be truly told that he was endowed, in a remarkable degree, with some moral qualities which smoothed his course and charmed away opposition, and with some physical advantages which happily set off his intellectual gifts; that he was blessed with a temper at once gentle and even; with a gracious manner and a social temperament; that he was without jealousy of the solid or showy talents of others, and willingly gave them the amplest meed of praise; that he spoke with all the grace of modesty, yet with the assurance of perfect mastery over his subject, his powers, and his audience; and yet they will scarcely recognise in these excellencies sufficient reasons for his extraordinary success. To me, the true secret of his peculiar strength appeared to lie in the possession of two powers which rarely co-exist in the same mind—extraordinary subtlety of perception and as remarkable simplicity of execution. In the first of these faculties—in the intuitive power of common sense, which is the finest essence of experience, whereby it attains 'to something of prophetic strain'—he excelled all his contemporaries except Lord Abinger, with whom it was more liable to be swayed by prejudice or modified by taste, as it was adorned with happier graces. The perfection of this faculty was remarkably exemplified in the fleeting visits he often paid to the trials of causes which he had left to the conduct of his juniors; a few words, sometimes a glance, sufficed to convey to his mind the exact position of complicated affairs, and enabled him to decide what should be done or avoided; and where the interference of any other moral advocate would have been dangerous, he often rendered good service, and, which was more extraordinary, never did harm. So his unrivalled aptitude for legal reasoning, enabled him to deal with authorities as he dealt with facts; if unprepared for an argument, he could find its links in the chaos of an index, and make an imposing show of learning out of a page of Harrison; and with the aid of the interruptions of the bench, which he could as dexterously provoke as parry, could find the right clue and conduct a luminous train of reasoning to a triumphant close. His most elaborate arguments, though not comparable in essence with those of his chief opponent, Lord Campbell—which, in comprehensive outline, exact logic, felicitous illustration, and harmonious structure, excelled all others I have heard—were delivered in tones so nicely adapted to the minds and ears of the judges, with an earnestness so winning, and a confidence so contagious, that they made a judgment on his side not only a necessity, but a pleasure.

"The other faculty, to which, in combination with his subtlety of understanding, the excellence of his advocacy may be attributed, is one more rarely possessed—and scarcely ever in such association—the entire singleness of a mind equally present in every part of a cause. If the promotion of the interest of the client were an advocate's highest duty, it would be another name for the exactest virtue; and inasmuch as that interest is not, like the objects of zeal, fixed in character, but liable to frequent change, the faculty of directing the whole power of the understanding to each shifting aspect of the cause in its minutest shadowings without the guidance of an inflexible law, is far more wonderful, if far less noble, than a singleness of devotion to right. It has an integrity of its own, which bears some affinity to that honesty which Baillie Nichol Jarvie attributes to his Highland kinsman. Such honesty—that is, the entire devotion of all the faculties to the object for which it was retained, without the lapse of a moment's vanity or indolence, with unlimited vision and unceasing activity—was Follett's beyond all other advocates of our time. To the presentment of truth, or sophism, as the cause might require, he gave his entire mind with as perfect oblivion of self as the most heroic sufferer for principle. The faculty which in Gladstone, the statesman, applied to realities and inspired only by the desire to discover the truth and to clothe it in language, assumes, in the minds of superficial observers, the air of casuistry from the nicety of its distinctions and the earnest desire of the speaker to present truth in its finest shades—in Follett, the advocate, applied indiscriminately to the development of the specious shows of things as of their essences, wore all the semblance of sincerity; and, in one sense, deserved it. No fears, no doubts, no scruples shook him. Of the license which advocacy draws from sympathy with the feelings of those it represents, he made full use, with unhesitating power; for his reason, of 'large discourse,' was as pliable as the affections of the most sensitive nature. Nor was he diverted from his aim by any figure or fancy: if he neither exalted his subject by imagination, nor illustrated it by wit, nor softened its details by pathos, he never made it the subject of vain attempts at the exhibition of either. He went into the arena, stripped of all encumbrance, to win, and contended studious only and always of victory. His presence of mind was not merely the absence of external distraction, nor the capacity of calling up all energies on an emergency, but the continued application of them equally to the duty of each moment. There are few speakers, even of fervid sincerity and zeal, whose thoughts do not frequently run before or beside the moment's purpose; whose wits do not sometimes wander on to some other part of the case than that they are instantly discussing; who do not anticipate some future effect, or dally with some apprehension of future peril, while they should consider only the next word or sentence. This momentary desertion of the exact purpose never occurred to Follett; he fitted the thought to its place; the word to the thought; and allowed the action only to take care of itself, as it always will with an earnest speaker. His, therefore, was rather the artlessness than the art of advocacy—its second nature—justly appreciated by those to whose interests it was devoted; but not fully understood even by the spectator of its exertion; dying with the causes in which it was engaged, and leaving no vestiges except in their success. Hence the blank which is substituted for the space he filled in human affairs. The modest assurance, the happy boldness, the extemporaneous logic, all that 'led but to the grave,' exist, like the images of departed actors, only in the recollection of those who witnessed them, till memory shall fade into tradition, and tradition dwindle down to a name." (Supplement to Vacation Rambles, p. 115.) The eagerness with which the talents of Sir William Follett were sought, forcibly illustrates the truth of a remark, made to me in the course of some friendly advice, by one who may be ranked among the most brilliant advocates who have adorned the American Bar (now in the highest office in the nation), that to attain the highest rank in the legal profession, a lawyer must have such abilities and character as will "compel" patronage.

He, however, who enters the profession here or elsewhere merely as a stepping stone to political preferment, need not expect great success, even though he may acquire some temporary advancement. The day is past when lawyers could monopolize every high place in the state. The habit of public speaking is not now confined to the learned professions. Our peculiar system of education has trained up a legion of orators and politicians outside of the bar. Now-a-days a man must have other qualifications besides the faculty of speech-making to win the prize in politics. He must be a man of comprehensive ability, and thoroughly identified with the interests of the people, before he can secure much popular favor, or else he must be possessed of such shining talents and character that his fellow men will take a pride in advancing him to conspicuous and responsible trusts. Let a man have a part or all of these qualifications, however, and with them the experience and tact of a lawyer, and he will of course make a more valuable public servant, especially if he is placed in a deliberative body. The British cabinets have always relied vastly on the support afforded them in the house of commons by their attorneys and solicitors general, whether it consisted in the severe and solemn logic of Romilly, in the cool and ready arguments of Scarlett, or the acute and irresistible oratory of Sir William Follett. The education of a lawyer;—his experience as a manager; his art of covering up weak points, his ready and adroit style of speaking;—all serve to make him peculiarly valuable to his own party, and dangerous to an opposition in a deliberative body. But the fact that a man is a lawyer does not advance him in politics so much as it once did. Fortunate it is so! For though learning will always have its advantages, yet no profession ought to have exclusive privileges. Nor need the lawyer repine that it is so, inasmuch as it is for his benefit, if he desires success in the profession, to discard the career of politics. The race is not to the swift, and he can afford to wait for the legitimate honors of the bar. I will conclude by saying that I regard Minnesota as a good field for an upright, industrious, and competent lawyer. For those of an opposite class, I have never yet heard of a very promising field.