University of Virginia Library

15. THE BAR OF THE SOUTH-WEST.

The citizens of an old country are very prone to consider the
people of a newly settled State or Territory as greatly their
inferiors: just as old men are apt to consider those younger
than themselves, and who have grown up under their observation,
as their inferiors. It is a very natural sentiment.
It is flattering to pride, and it tickles the vanity of senility
—individual and State—to assign this status of elevation
to self, and this consequent depression to others. Accordingly,
the Englishman looks upon the American as rather a
green-horn, gawky sort of a fellow, infinitely below the standard
of John Bull in every thing, external and internal, of
character and of circumstance; and no amount of licking
can thrash the idea out of him. As Swedenborg says of
some religious dogmas held by certain bigots—it is glued
to his brains. So it is with our own people. The Bostonian
looks down upon the Virginian—the Virginian on the
Tennesseeian—the Tennesseeian on the Alabamian—the Alabamian
on the Mississippian—the Mississippian on the
Louisianian—the Louisianian on the Texian—the Texian on

New Mexico, and, we suppose, New Mexico on Pandemonium.

It may be one of the perversions of patriotism, to create
and foster invidious and partial discriminations between different
countries, and between different sections of the same
country: and especially does this prejudice exist and deepen
with a people stationary and secluded in habit and position.
But travel, a broader range of inquiry and observation, more
intimate associations and a freer correspondence, begetting
larger and more cosmopolitan views of men and things, serve
greatly to soften these prejudices, even where they are not
entirely removed. That there is some good country even
beyond the Chinese wall, and that all not within that barrier
are not quite “outside barbarians,” the Celestials themselves
are beginning to acknowledge.

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.

The reasons for this opinion we proceed to give. The
most conclusive mode of establishing this proposition would
probably be by comparison; but this, from the nature of the
case, is impossible. The knowledge of facts and men is

wanting, and even if possessed by any capable of instituting
the comparison, the decision would, at last, be only an
opinion, and would carry but little weight, even if the capacity
and fairness of the critic were duly authenticated to the
reader.

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. Talents alone are not distinction. For
the Archimedean work, there must be a fulcrum as well
as a lever. Great abilities usually need a great stimulus.
What dormant genius there is in every country, may be
known by the daily examples of a success, of which there was
neither early promise nor early expectation.

In a new country the political edifice, like all the rest,
must be built from the ground up. Where nothing is at
hand, every thing 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. A man
of great parts may miss his way to greatness by frittering
away his powers upon non-essentials—upon the style and
finish of a thing rather than upon its strength and utility—
upon modes rather than upon ends. To direct strength
aright, the aim is as essential as the power. But above all
things, success more depends upon self-confidence than any
thing else; talent must go in partnership with will or it cannot
do a business of profit. Erasmus and Melancthon were
the equals of Luther in the closet; but where else were
they his equals? 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?

The exercise of our faculties not merely better enables
us to use them—it strengthens them as much; the strength
lies as much in the exercise as in the muscle; and the earlier
the exercise, after the muscle can stand it, the greater the
strength.

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. Health,
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. For the
nonce, the speaker is the teacher. He must not be sifting
his discourse for deprecating epithets or propitiating terms,
nor be seeking to avoid being taken up and shaken by some
rough senior, nor be afraid of being wearisome to the audience
or disrespectful to superiors: bethinking him of exposure
and dreading the laugh or the sneer, when the bold
challenge, the quick retort, the fresh thought, the indignant
crimination, the honest fervor, and the vigorous argument
are needed for his cause. 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.

Alack-a-day! Small is the sum of sympathy which is
felt by the mass of men for the woes and wounds of juvenile
vanity and especially for the woes of professional vanity.
From the time of Swift, who pilloried Bettsworth to eternal
ridicule, and of Cobbett, who, with rude contempt,
scoffed at the idea of being blamed for “crushing a lawyer
in the egg,” but few tears of commiseration have been
shed for the poor “Wind-seller,” cut down in his raw and
callow youth. And, yet, I cannot help, for the soul of me,
the weakness which comes into my eyes, when I see, as I
have seen, a gallant youth, full of ardor and hope, let down,
a dead failure,—on his first trial over the rough course of
the law. The head hung down—the cowed look of timid
deprecation—the desponding carriage—tell a story of deep
wounds of spirit—of hopes overcast, and energies subdued,
and pride humbled—which touches me deeply. I picture
him in the recesses of his chamber, wearing through the
weary watches of the night—grinding his teeth in impatient
anguish,—groaning sorrowfully and wetting his pillow with
bitter tears—cursing his folly, and infatuation, and his hard
fate—envying the hod-carrier the sure success of his humbler
lot, and his security against the ill fortune of a shameful failure,
where failure was exposed presumption.

I have felt, in the intensity of my concern for such an
one, like hazarding the officiousness of going to him, and advising
him to abandon the hang-dog trade, and hide his
shame in some obscurer and honest pursuit.

And, rough senior, my dear brother, think of these
things when your fingers itch to wool one of the tender neophytes—and
forbear. I crave no quarter for the lawyer,
full-grown or half-grown; he can stand peppering—it is his
vocation, Hal—he is paid for it; but for the lawyerling I
plead; and to my own urgency in his behalf, I add the
pathetic plea of the gentle Elia in behalf of the roast-pig—
“Barbecue your whole hogs to your palate, steep them in
shalots, stuff them with the plantations of the rank and
guilty garlic; you cannot poison them or make them stronger
than they are—but consider, he is a weakling—a flower.”

But revenons à nos moutons.

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.”
Does he get his books and “scorn delights and live laborious
days,” for the prospect of a remote and contingent, and
that at best, but a poorly remunerating success? Does he
cool his hot blood in the ink of the Black-letter, and spin

his toils with the industry and forethought of the patient
spider that is to be remunerated next fly-season, for her
pains, and sit, like that collecting attorney, at the door of
the house, waiting and watching until then, for prey? If
so, he is a hero indeed; but what years of the flower of his
life are not spent in waiting for the prosperous future, in the
vague preparation which is not associated with, or stimulated
by, a present use for, and direct application to a tangible
purpose of what he learns! Where one man of real merit
succeeds, how many break down in the training; and even
where success is won, how much less that success than where
talent, like Pitt's, takes its natural position at the start, and,
stimulated to its utmost exercise, fights its way from its first
strivings to its ultimate triumphs—each day a day of activity
and every week a trial of skill and strength; learning
all of law that is evolved from its practice, and forced to
know something, at least, of what the books teach of it;
and getting that larger and better knowledge of men which
books cannot impart, and that still more important self-knowledge,
of which experience is the only schoolmaster.

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.

It strikes me that the career of Warren Hastings illustrates

my idea of the influence of a new country and of a
new and responsible position over the character of men of
vigorous parts. In India, new to English settlement and
institutions, he well earned the motto, “Mens æqua in
arduis,” inscribed over his portrait in the council chamber
of Calcutta: but after he returned to England, amidst the
difficulties of his impeachment, his policy ignored all his
claims to greatness, had it alone been considered: the genius
that expatiated over and permeated his broad policy on the
plains of Hindostan seemed stifled in the conventional atmosphere
of St. Stephen's.

While we think that the influence of the new country
upon the intellect of the professional emigré was highly
beneficial, we speak, we hope, with a becoming distrust, of
its moral effect. We might, in a debating club, tolerate
some scruple of a doubt, whether this violent disruption of
family ties — this sudden abandonment of the associations
and influence of country and of home—of the restraints of
old authority and of opinion—and this sudden plunge into
the whirling vortex of a new and seething population—in
which the elements were curiously and variously mixed with
free manners and not over-puritanic conversation — were
efficient causes of moral improvement: we can tolerate a
doubt as to whether the character of a young man might not
receive something less than a pious impression, under these
circumstances of temptation, when that character was in its
most malleable and fusible state. But we leave this moral
problem to be solved by those better able to manage it, with

this single observation, that if the subject were able to
stand the trial, his moral constitution, like his physical after
an attack of yellow fever, would be apt to be the better for
it. We cannot, however, in conscience, from what we have
experienced of a new country with “flush fixins” annexed,
advise the experiment. We have known it to fail. And
probably more of character would have been lost if more
had been put at hazard.

In trying to arrive at the character of the 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 statutes 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;
an 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 these merely forerunners, ushering in the Millennium
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, offshoots,
quirks and quiddities of all the law, and lawing, and
law-mooting of all the various judicatories and their satellites,
were imported into 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 profesional 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 supension 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: everyman 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 manœuvring 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, demagoguism
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. A
respectable old snob like Mr. Buzzfuz, shrouded like Jack
the Giant Killer, in a mantle of dignity that forbade approach,
if it did not hide the wearer from attack, never could hear
what his “d—d good-natured friends” thought of his performances
in the department of humbug or cant; but this was,
by no means, the case with such an one in our younger community.

Again, it is flattering to human nature to know that these
forensic tricks are not spontaneous but acquired, and a young
bar cannot, all at once, acquire them. It requires experience,
and a monstrous development of the organs of Reverence
and Marvellousness in the audience to practise them
with any hope of success, and these bumps were almost entirely
wanting in the craniums of the new population around,
all of whose eye-teeth were fully cut, and who, standing
knee-deep in exploded humbugs, seemed to wear their eyes
stereotyped into a fixed, unwinking qui vive: the very expression
of their countenances seemed to be articulate with
the interrogatory, “who is to be picked up next?” It stops
curiously the flow of the current when the humbugger sees
the intended humbuggee looking him, with a quizzical 'cuteness,
in the eye, and seeming to say by the expression of his
own, “Squire, do you see any thing green here?”

The business of court-house speaking began to grow too
common and extensive to excite public interest; the novelty

of the thing, after a while, wore off. A stream of sound
poured over the land like the trade winds; men now, as a
general thing, only came to court because they had business
there, and staid only until it was accomplished. It is otherwise
in the old country as it had been in the new. It is one
of the phenomena of mind that quiet and otherwise sensible
men, come from their homes to the county seat to listen to
the speeches of the lawyers,—looking over the bar and
dropping the under jaw in rapt attention, when some forensic
Boreas is blowing away at a case in which they have no
interest or concern, deserting, for this queer divertisement,
the splitting of their rails and their attention to their bullocks;
or, if they needed some relaxation from such pursuits,
neglecting their arm-chairs in the passage with the privilege
of reading an old almanac or listening to the wind whistling
through the key-hole. When a thing gets to be a work-day
and common-place affair, it is apt to be done in a common-place
way, and the parade, tinsel, and fancy fireworks of a
holiday exercise or a gala-day fête are apt to be omitted
from the bill and the boards.

It is a great mistake to suppose that a lawyer's strength
lies chiefly in his tongue; it is in the preparation of his
case—in knowing what makes the case—in stating the case
accurately in the papers, and getting out and getting up the
proofs. It requires a good lawyer to make a fine argument;
but he is a better lawyer who saves the necessity of making
a fine argument, and prevents the possibility of his adversary's
making one.

These practical requirements and habits had the effect
of driving from the bar that forensic nuisance, “a pretty
speaker;” Fourth-of-Julyisms fled to the stump or the national
anniversary barbecues; they were out of place in
those prosaic times and proceedings. A veteran litigant
having a tough lawsuit, had as little use for a flowery orator,
letting off his fancy pyrotechnics, as he had for Juno's team
of peacocks for hauling his cotton to market.

Between the years 1833 and 1845, the bar was most numerous,
and, we think, on the whole, most able. The Supreme
Court bar of Mississippi was characterized by signal
ability. It may well be doubted if so able and efficient a
bar ever existed at any one period of the same duration, in
a Southern State: not that the bar was made up of Wickhams,
Leighs, Johnsons, and Stanards, nor of Clays, Crittendens,
Rowans, and Wickliffes; nor, possibly, that there
were any members of the Jackson bar equal to these great
names of the Richmond and Frankfort bars; yet those who
have heard the best efforts of Prentiss, Holt, Walker, Yerger,
Mays, and Boyd, may be allowed to doubt the justness
of that criticism which would deny a place to them among
lawyers even so renowned as the shining lights of the Virginia
and Kentucky forums. But we meant to say, that if
this claim be ignored, yet the Mississippi bar, if not so distinguished
for individual eminence, made up the deficiency
by a more generally-diffused ability, and a larger number
of members of inferior, though only a shade inferior, distinction.

As some proof of the ability of the South-western bar, it
may be stated, that we had not unfrequently an advent into
the new country of lawyers of considerable local reputation
in the older States—men who, in their own bailiwicks, were
mighty men of war—so distinguished, indeed, that on the
first bruiting of a lawsuit, the litigants, without waiting for
the ferry-boat, would swim Tar river, or the Pedee, or
French Broad, to get to them, under the idea that who got
to them first would gain the case. But after the first bustle
of their coming with the fox-fire of their old reputations
sticking to their gowns, it was generally found, to the utter
amazement of their friends who had known them in the old
country, that the new importation would not suit the market.
They usually fell back from the position at first courteously
tendered them, and, not unfrequently, receded until, worked
out of profitable practice, they took their places low down
in the list, or were lost behind the bar, among the spectators.
There is something doubtless in transplantation—something
in racing over one's own training-paths—something in first
firing with a rest, and then being compelled to fire off-hand
amid a general flutter and confusion; but, making all this
allowance, it hardly accounts fully for the result. For we
know that others, against these disadvantages, sustained
themselves.

Nor was there, nor is there, any bar that better illustrates
the higher properties or nobler characteristics which
have, in every State, so much ennobled the profession of the
law, than that of the South-West, a class of men more fearless

or more faithful, more chivalrous, reliable or trustworthy,
more loyal to 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 supposd 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.

Formand 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.